HomeMy WebLinkAboutMINUTES-05/16/2006-RegularMay 16, 2006
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, May 16, 2006,
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: Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and
Weitkunat.
Staff Members Present: Atteberry, Harris, Roy.
Citizen Participation
Mayor Hutchinson stated each participant would have four minutes to speak.
Susan Grebel, 749 Blue Mountain Drive, objected to budget cuts to library services and supported
creation of a library district.
Nancy York, 130 South Whitcomb Street, asked the Council to make the 2007 budget discussions
more public and spoke regarding adequate funding for transit. She urged the City to do better at
energy conservation and recycling in City buildings.
Ralph Olson,1701 Sheely Drive, supported a library district to meet library funding needs. He noted
the Library Board supported creation of a library district to solve the long-term funding problem.
Teresa McLain, 1508 West Elizabeth Street #304, spoke in support of a library district.
Bob Viscount, 1104 West Magnolia Street, commented on the proclamation relating to ALS month
and also spoke in support of library funding and a library district.
Al Baccili, 520 Galaxy Court, opposed the Southwest Enclave Annexation and also opposed creation
of a library district through taxation. He commented on a newspaper article regarding "big raises"
for "high City officials" and stated money should go instead to the library and other funding needs.
He also spoke in opposition to the sales tax vendor fee and stated money should go toward City
funding needs. He stated the open space tax brought in $7 million per year and that money should
be used for other City needs.
Citizen Participation Follow-up
Mayor Hutchinson thanked those who spoke during Citizen Participation.
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May 16, 2006
Councilmember Weitkunat stated a work session was scheduled for next Tuesday for discussion of
a library district and the future of the library and invited those interested to listen to that discussion.
Councilmember Ohlson stated the City's open space tax was a citizen initiative that passed
overwhelmingly and that the tax dollars were earmarked by the voters for open space. He stated the
article in the newspaper referenced by Mr. Baccili related to high pay raises for the County
Commissioners. City Manager Attebery stated the Council approved an energy audit in the 2006
budget to look at efficient energy use in all City facilities. The intent was to identify potential energy
savings for City buildings.
Agenda Review
City Manager Atteberry stated item #16 Items Relating to the Mountain/Frey Rezoning and
Amendment to the West Side Neighborhood Plan and item #17 First Reading of Ordinance No. 082,
2006, Amending the Zoning Map of the City by Changing the Zoning Classification for that Certain
Property Known as the Willow Brook Parcel FRezoning were opportunities for public hearings and
that if any citizen wished to speak on either item it would be necessary to pull the item from the
Consent Calendar.
CONSENT CALENDAR
6. Consideration and Approval of the Minutes of the April 4. 2006 Regular Meeting
7. Postponement of Second Reading of Ordinance No. 071, 2006, Vacating Portions of the
Rights -of -Way as Dedicated on the Plat of Cameron Park Second Filingto o July 18, 2006.
This Ordinance, which was unanimously adopted on First Reading on May 2, 2006, vacates
the right-of-way for the frontage road in Cameron Park Second Filing, located west of
College Avenue, north of Cameron Drive. The Redtail development proposal, submitted
November 20, 2003, shows a different street layout than was originally platted in the
Cameron Park Second Filing. The right-of-way is no longer needed but the area will be
retained as a utility, drainage and public access easement.
Staff is asking that consideration of the Second Reading of Ordinance No. 071, 2006, be
postponed until July 18, 2006, after the Redtail project has been approved and recorded.
This is so the option can be preserved for the frontage road to continue if the proposed
Redtail project fails to be finalized and another proposal would want to utilize this
connection. Staff is working with the developer on this project and hopes to finalize the
details and plans soon.
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May 16, 2006
8. Second Reading of Ordinance No. 072, 2006, Vacating Portions of the Rights -of -Way as
Dedicated on the Plat of Cameron Park Second Filing,
This Ordinance was unanimously adopted on First Reading on May 2, 2006 and vacates
portions of rights -of -way in Cameron Park Second Filing, located west of College Avenue,
on the west end of Cameron Drive. The Redtail development proposal, submitted November
20, 2003 shows a different street layout than was originally platted in the Cameron Park
Second Filing. Therefore, the rights -of -way for the streets are no longer necessary.
9. Items Relatiniz to Land Conservation at Soapstone Prairie Natural Area
A. Second Reading of Ordinance No. 073, 2006, Authorizing the Conveyance of 441
Acres of Land to the State Land Board Subject to a Conservation Easement in
Exchange for 3,873 Acres of Land Located Within Soapstone Prairie Natural Area.
B. Second Reading of Ordinance No. 074, 2006, Authorizing the Lease of Portions of
the Bernard Ranch Property to be Acquired by the City to the Bemards Through
2012.
This item includes two ordinances, each of which authorize a real property transaction related
to the conservation and use of Soapstone Prairie Natural Area. Both Ordinances were
unanimously adopted on First Reading on May 2, 2006.
The first transaction entails a trade of 441 acres within the Wellington community separator
for 3,873 acres of State Land Board property that lies within the boundary of Soapstone
Prairie Natural Area. The City retains a conservation easement on the 441-acre parcel,
enforceable by the City, that restricts development to a total of twenty-three home sites.
Three of the home sites are already built out and the additional twenty home sites will be
clustered on the northwest corner of the property. The State Land Board obtains various
water rights associated with the property. In addition to the 3,873 acres of land, the City
receives $811,000 in cash to equalize the exchange values.
The second transaction entails a purchase of 1,760 acres over a seven-year period for total
consideration of $2,000,000. As portions of the `Bernard Ranch" are acquired, they will be
leased back to the seller for continued ranching activities. This lease requires City Council
approval. Ultimately, the property will be resold to conservation -minded buyers subject to
a conservation easement by which the City would limit development on the property.
10. First Reading of Ordinance No. 075. 2006, Appropriating Prior Year Reserves in the General
Fund for Cultural Development and Programming Activities and the Fort Collins Convention
and Visitor's Bureau.
This Ordinance appropriates lodging tax revenues that were in excess of 2005 budgeted
lodging tax receipts to Cultural Development and Programming ("CDP"), Visitor Events,
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May 16, 2006
and the Convention and Visitors Bureau ("CVB") accounts. Lodging tax revenue for 2005
was estimated to be $593,122 and the 2006 budget appropriated an equal amount. However,
actual receipts totaled $668,499 for 2005 and the difference of $75,377 has not been
appropriated.
11. First Reading of Ordinance No. 076, 2006. Appropriating Unanticipated Grant Revenue in
the Cultural Services and Facilities Fund to Be Used for Research and Documentation of the
Soapstone Natural Area.
The City was awarded a $147,563 grant from the National Park Service. This Ordinance
appropriates that grant money in the Fort Collins Museum's Soapstone Natural Area grant
project.
12. First Reading of Ordinance No. 077, 2006, Appropriating Unanticipated Grant Revenue in
the Cultural Services and Facilities Fund to Be Used for Repatriation of Human Remains and
Cultural Artifacts in the Holdings of the Fort Collins Museum.
The City was awarded two grants from the National Park Service for $16,375. This
Ordinance appropriates the grant money in the Fort Collins Museum's Native American
Graves Protection and Repatriation Act ("NAGPRA") Repatriation grant project.
13. First Reading of Ordinance No. 078, 2006, Appropriating Unanticipated Revenue in the
Street Oversizing Fund and Authorizing the Transfer of Approvriations from the Street
Oversizing Fund to the Capital Project Fund - Lemay Avenue, Trilby Road to Carpenter
Road Capital Project.
Intersection and arterial street improvements are planned for Lemay Avenue, from Trilby
Road south to Carpenter Road (approximately 5280 linear feet). These street improvements
will include the widening of Lemay Avenue to a four -lane arterial street from its existing
two-lane configuration, and interim widening at the Lemay/Carpenter intersection to
accommodate auxiliary turn lanes. The City's Pavement Management Program is
coordinating rehabilitation and overlay work on Lemay Avenue with the intersection and
arterial improvements. Roadway improvements include the installation of curb -and -gutter,
asphalt paving, bike lanes, some landscaped medians, and storm and sanitary sewers. The
construction is planned to begin in July 1, 2006 and be completed on November 16, 2006.
14. First Reading of Ordinance No. 079, 2006, Appropriating Prior Year Reserves in the
Wastewater Fund for the Purpose of Purchasing Property.
The Wastewater Utility has a time sensitive opportunity to purchase land. This can be
achieved by utilizing prior year reserves.
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May 16, 2006
15. First Reading of Ordinance No. 080, 2006, Authorizing the Lease of City -Owned Property
at 200 West Mountain Avenue, Suite C. For Up to Five Years.
The Fort Collins Technology Incubator (FCTI) provides critical business assistance to the
most promising high tech startup companies in the community. As part of its service, FCTI
offers below market lease space to its client companies. In 2004, the Council approved
Resolution 2004-069, which authorized the lease of City -owned property at 200 West
Mountain, Suite C, to FCTI and its clients. This Ordinance would allow the lease to FCTI
and its participants to continue for up to five years.
16. Items Relating to the Mountain/Frey Rezoning and Amendment to the West Side
Neighborhood Plan.
A. Resolution 2006-052 Amending the Westside Neighborhood Plan Pertaining to the
Frey Subdivision.
B. First Reading of Ordinance No. 081, 2006, Amending the Zoning Map of the City of
Fort Collins by Changing the Zoning Classification for That Certain Property Known
as the Mountain/Frey Rezoning.
This is a rezoning request for most of the Frey Subdivision (approximately 11.6 acres) to
change the zoning from the L-M-N, Low Density Mixed Use Neighborhood, District
designation to the N-C-L, Neighborhood Conservation Low Density, District designation and
making an amendment to the West Side Neighborhood Plan by changing the subj ect area on
the "Future Land Use" map of the Plan from the "Retain or Convert to Multi -Family"
classification to the "Retain or Convert to Single Family" classification. The request
represents a resident initiated rezoning (downzoning) that acknowledges the manner in which
the subject area has developed. The Advance Planning Department is also an applicant for
the rezoning because Section 2.9.3 of the Land Use Code limits rezoning requests to be
"proposed by the Council, the Planning and Zoning Board, the Director or the owners of the
property to be rezoned." Not all property owners within the subject area (Frey Subdivision)
have signed the rezoning petition and the Advance Planning Department determined that the
rezoning request should be considered for the whole subject area and not a checkerboard
pattern of parcels owned just by the signers of the rezoning petition. The portion of the Frey
Subdivision not included in the rezoning request is the original Block 2 Lot 12, a 1.2 acre
parcel that was redeveloped in May 1983 as the Mountain Court Planned Unit Development
(PUD) for 10 townhome units and retaining the existing single-family home on the parcel.
17. First Reading of Ordinance No. 082, 2006, Amending the Zoning Map of the City by
Changing the Zoning Classification for that Certain Property Known as the Willow Brook
Parcel F Rezoning.
This is a request to rezone a .28 acre parcel from L-M-N, Low Density Mixed -Use
Neighborhood, to U-E, Urban Estate. The parcel is a remnant created by the curving
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May 16, 2006
alignment of Rock Creek Drive platted as part of the Willow Brook Subdivision. This
curvature is necessary in order to create a future intersection of Rock Creek Drive with
Strauss Cabin Road that is not in conflict with the steep grades associated with the Fossil
Creek Reservoir Inlet Ditch. Upon rezoning, it is proposed that Parcel F be made a part of
Lot One of Sunrise Ridge First Filing.
18. First Reading of Ordinance No. 083, 2006, Desigi atinQ the Ernest and Anna Meyer House,
309 East Mulberry Street. Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to
Chapter 14 of the City Code.
The owner of the property, Linda J. Bova, is initiating this request for Fort Collins Landmark
designation for the Ernest and Anna Meyer House. The property qualifies for designation
as a Fort Collins Landmark under Preservation Standard (3), embodying the distinctive
characteristics of a type, period, and method of construction, and contributing to the
historical and architectural significance of Fort Collins. Built in 1905 by Ora E. Long, this
brick dwelling is a very nice example of Late 19th-Early 20th century Eclectic residential
architecture, with distinctive "Pagoda" influence. The home is listed on both the National
Register ofHistoric Places and the Colorado Register ofHistoric Properties, as a contributing
element of the Laurel School National Register District.
19. Resolution 2006-053 Adopting the Recommendations of the Cultural Resources Board
Regarding Fort Fund Disbursements.
The guidelines for the Cultural Development and Programming and Tourism Programming
accounts (Fort Fund) provide a three -tiered funding system. Organizations may apply for
grants from these accounts to fund community events. Tier #1 was established as an annual
programming fund for organizations whose primary purpose is to present three or more
public events annually. These groups may apply for funding from Tier #1 each April. Tier
#2 allows organizations that are not eligible for Tier #1 support to apply for funding of events
that are not fund-raising in nature and do not generate more than $5,000 in proceeds after
expenses. Tier #3 allows organizations that are not eligible for Tier #1 support to apply for
funding of events that generate more than $5,000 in proceeds after expenses and are fund-
raising in nature. Applications for support from Tier #2 and Tier #3 are accepted each
January and June.
Disbursements from funds in the City's Cultural Development and Programming and
Tourism Programming accounts were recommended by the Cultural Resources Board at its
regular meeting of April 26, 2006. Adoption of this Resolution will approve the
recommended disbursements.
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May 16, 2006
20. Resolution 2006-054 Approving Expenditures from the Art in Public Places Reserve
Account in the Cultural Services and Facilities Fund to Commission an Artist to Create Art
Elements for the CSU Transit Center Project.
This Resolution approves expenditures of $65,936 for design, materials, installation and
contingency for a prof ect with artist David Griggs to create multiple art elements for the CSU
Transit Center Project.
21. Resolution 2006-055 Approving Expenditures from the Art in Public Places Reserve
Account in the Cultural Services and Facilities Fund to Commission an Artist to Create Art
Elements for the Northside Aztlan Community Center Project.
This Resolution approves expenditures of $78,037 for design, materials, installation and
contingency for a project with artist Carolyn Braaksma to create multiple elements for the
Northside Aztlan Community Center Project.
22. Resolution 2006-056 Approving Expenditures from the Art in Public Places Reserve
Accounts in the Storm Drainage Utility Fund to Commission an Artist to Create a Sculptural
Element for the City Park Sheldon Lake Shoreline.
This Resolution approves expenditures of $67,006 for design, fabrication, installation and
contingency for a project to install a sculptural element by Brower Hatcher Studios on the
shoreline of City Park's Sheldon Lake.
23. Resolution 2006-057 Nominating Mayor Doug Hutchinson as a Candidate to the Executive
Board of the Colorado Municipal League.
This Resolution formally endorses the nomination ofMayorpoug Hutchinson as a candidate
to the Executive Board of the Colorado Municipal League. Council believes Mayor
Hutchinson would make an excellent candidate for the Executive Board and this Resolution
expresses its support of his nomination.
24. Resolution 2006-058 Making an Appointment to the Housing Authority.
The resident commissioner position on the Housing Authority currently is vacant due to the
resignation of Mary Greeley. The Board of Commissioners of the Housing Authority,
including Councilmember Karen Weitkunat, has made a formal recommendation to request
Council appoint Stephanie Barratt to the vacant resident commissioner seat. The term will
begin immediately and is set to expire on December 31, 2010.
***END CONSENT***
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May 16, 2006
Ordinances on Second Reading were read by title by Chief Deputy City Clerk Harris.
8. Second Reading of Ordinance No. 072, 2006, Vacating Portions of the Rights -of -Way as
Dedicated on the Plat of Cameron Park Second Filing.
9. Items Relating to Land Conservation at Soapstone Prairie Natural Area.
A. Second Reading of Ordinance No. 073, 2006, Authorizing the Conveyance of 441
Acres of Land to the State Land Board Subject to a Conservation Easement in
Exchange for 3,873 Acres of Land Located Within Soapstone Prairie Natural Area.
B. Second Reading of Ordinance No. 074, 2006, Authorizing the Lease of Portions of
the Bernard Ranch Property to be Acquired by the City to the Bemards Through
2012.
Ordinances on First Reading were read by title by Chief Deputy City Clerk Harris.
10. First Reading of Ordinance No. 075, 2006, Appropriating Prior Year Reserves in the General
Fund for Cultural Development and Programming Activities and the Fort Collins Convention
and Visitor's Bureau.
11. First Reading of Ordinance No. 076, 2006, Appropriating Unanticipated Grant Revenue in
the Cultural Services and Facilities Fund to Be Used for Research and Documentation of the
Soapstone Natural Area.
12. First Reading of Ordinance No. 077, 2006, Appropriating Unanticipated Grant Revenue in
the Cultural Services and Facilities Fund to Be Used for Repatriation ofHuman Remains and
Cultural Artifacts in the Holdings of the Fort Collins Museum.
13. First Reading of Ordinance No. 078, 2006, Appropriating Unanticipated Revenue in the
Street Oversizing Fund and Authorizing the Transfer of Appropriations from the Street
Oversizing Fund to the Capital Project Fund - Lemay Avenue, Trilby Road to Carpenter
Road Capital Project.
14. First Reading of Ordinance No. 079, 2006, Appropriating Prior Year Reserves in the
Wastewater Fund for the Purpose of Purchasing Property.
15. First Reading of Ordinance No. 080, 2006, Authorizing the Lease of City -Owned Property
at 200 West Mountain Avenue, Suite C, For Up to Five Years.
16. First Reading of Ordinance No. 081, 2006, Amending the Zoning Map of the City of Fort
Collins by Changing the Zoning Classification for That Certain Property Known as the
Mountain/Frey Rezoning.
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May 16, 2006
17. First Reading of Ordinance No. 082, 2006, Amending the Zoning Map of the City by
Changing the Zoning Classification for that Certain Property Known as the Willow Brook
Parcel F Rezoning.
18. First Reading of Ordinance No. 083, 2006, Designating the Ernest and Anna Meyer House,
309 East Mulberry Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to
Chapter 14 of the City Code.
28. Items Relating to the Completion of the Spring Cycle of the Competitive Process for
Allocating City Financial Resources to Affordable Housing and Community Development
Activities Utilizing the Federal Community Development Block Grant Program and Home
Investment Partnership Program Grants, and the City's Affordable Housing Fund and Human
Services Program.
C. First Reading of Ordinance No. 084, 2006, Appropriating Unanticipated Revenue and
Authorizing the Transfer of Appropriations Between Program Years in the
Community Development Block Grant Fund.
D. First Reading ofOrdinance No. 085, 2006, Appropriating Unanticipated Revenue and
Authorizing the Transfer of Appropriations Between Program Years in the Home
Investment Partnerships Fund.
29. First Reading of Ordinance No. 086, 2006, Amending the Zoning Map of the City of Fort
Collins by Changing the Zoning Classification for That Certain Property Known as the
Spring Creek Farms Rezoning.
30. First Reading of Ordinance No. 087, 2006, Amending Chapter 3 of the City Code to Allow
Alcohol Beverage Tastings
31. Items Relating to the Amendment of the Appeals Process Contained in Chapter 2, Article 11,
Division 3 of the City Code.
A. First Reading of Ordinance No. 088, 2006, Making Various Amendments to Chapter
2, Article II Division 3 of the City Code Pertaining to the Appeals Process.
B. First Reading of Ordinance No. 089, 2006, Amending Chapter 2, Article 11, Division
3 of the City Code with Regard to the Grounds upon which Appeals to the City
Council are Decided.
C. First Reading of Ordinance No. 090, 2006, Amending Chapter 2, Article 11, Division
3 of the City Code Pertaining to the Filing of Appeals by Members of the City
Council.
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May 16, 2006
Councilmember Manvel made a motion, seconded by Councilmember Weitkunat, to adopt and
approve all items on the Consent Calendar. Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Consent Calendar Follow-up
Councilmember Kastein spoke regarding item #13 First Reading of Ordinance No. 078, 2006,
Appropriating Unanticipated Revenue in the Street Oversizing Fund and Authorizing the Transfer
of Appropriations from the Street Oversizing Fund to the Capital Project Fund - Lemay Avenue,
Trilby Road to Carpenter Road Capital Project. He asked that staff provide information regarding
whether the project was in the City limits.
Councilmember Manvel commented on item #15 First Reading of Ordinance No. 080, 2006,
Authorizing the Lease of City -Owned Property at 200 West Mountain Avenue, Suite C, For Up to
Five Years and stated this was for the technology incubator. City Manager Atteberry stated Council
would receive the incubator's annual report in the Thursday packets.
Staff Reports
City Manager Atteberry recognized the work of Cameron Gloss and Kathleen Bracke, who were
presenters at the American Planning Association annual national conference. He also reported the
City had been listed as #6 in the Frommer's book Best Places to Raise Your Family and by the June
Kiplinger Magazine as one of the 50 best places to live. He reported the Fort Collins Museum had
hosted a visit from the producers of Discovery Channel Europe doing research on flash floods who
were interested in the Museum's exhibit on the Fort Collins flood; approximately 1,500 Poudre
School District fourth graders attended the annual rendezvous in which the Mayor participated; and
a French film maker visited the Museum last week to research the Calamity Jane collection.
Mayor Hutchinson spoke regarding the work of the Museum on the rendezvous.
Councilmember Reports
Councilmember Weitkunat reported on discussions at the City -School District -County monthly
liaison meeting regarding the school resource officer program, Poudre School District boundary and
schools of choice issues, the library district, and the County's criminal justice center ballot issue.
She stated London had sent six police officers to Fort Collins to study the school resource officer
program.
Councilmember Kastein reported on discussions of the North Front Range Air Quality and
Transportation Planning Council regarding park `n ride improvements funding, adding SAINT to
the list of approved transportation carriers eligible for federal funding, and the upcoming
transportation summit. He also reported he was hosting an upcoming District meeting.
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May 16, 2006
Items Relating to the Completion of the Spring Cycle of the
Competitive Process for Allocating City Financial Resources to
Affordable Housing and Community Development Activities
Utilizing the Federal Community Development Block Grant Program
and Home Investment Partnership Program Grants, and the
City's Affordable Housing Fund and Human Services Program, Adopted
The following is staff s memorandum on this item.
"FINANCIAL IMPACT
The Community Development Block Grant ("CDBG') Program and Home Investment Partnership
("HOME') Program provide Federal funds from the Department of Housing and Urban
Development ("HUD') to the City of Fort Collins which can be allocated to housing and community
development related programs and projects, thereby reducing the demand on the City's General
Fund Budget to address such needs. City funds for this item were appropriated as part of the
Affordable Housing Fund and the Human Services Program in December, 2005.
A. Resolution 2006-059 Approving the Programs and Projects that Will Receive Funds from
the Federal Community Development Block Grant Program and Home Investment
Partnership Program Grants and the City's Affordable Housing Fund and Human Services
Program.
B. Resolution 2006-060 Approving the FY 2006 Home Investment Partnerships Program for
the City of Fort Collins.
C. First Reading of Ordinance No. 084, 2006, Appropriating Unanticipated Revenue and
Authorizing the Transfer of Appropriations Between Program Years in the Community
Development Block Grant Fund.
D. First Reading of Ordinance No. 085, 2006, Appropriating Unanticipated Revenue and
Authorizing the Transfer ofAppropriations Between Program Years in the Home Investment
Partnerships Fund.
These Resolutions and Ordinances will complete the spring cycle of the competitive process for
allocating City financial resources to affordable housing projects/programs and community
development activities (CDBG/HOME/Affordable Housing/Human Services funds).
BACKGROUND
The two Resolutions relate to funding under the CDBG and HOME Programs and available City
funds.
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May 16, 2006
Resolution 2006-059 establishes which programs and projects will receive funding with CDBG
funds for the FY 2006 Program year, which starts on October 1, 2006, and the use of
Reprogrammed CDBG Entitlement Grant funds, CDBG Program Income, f nds from the FY 2006
HOME Grant, Unprogrammed FY 04 HOME Grant Funds, HOME Program Income, funds from
the HOME FY 04-05 Community Housing Development Organization Set Aside and funds from the
City's Affordable Housing Fund and Human Services Program. The CDBG Commission presents
a list of recommendations as to which programs and projects should receive funding.
Resolution 2006-060 establishes the major funding categories within the HOME Program for the
FY 2006 Program year, which also starts on October 1, 2006 Specific projects for the use of
HOMEf nds will be determined in November as a result of the fall funding cycle of the competitive
process for the allocation of the City's financial resources to affordable housingprograms/projects
and community development activities.
The following table summarizes the amount and sources of available f nds:
AMOUNT
SOURCE
$1, 037, 758
FY 2006 CDBG Entitlement Grant
39,012
Reprogrammed CDBG Funds
62,000
CDBG Program Income
306,981
Unprogrammed FY05 HOME Funds
51,312
Unprogrammed FY 04-05 HOME CHDO Funds
74,541
FY 2006 HOME Grant and Program Income for Administration
237,931
Affordable Housing Fund (previously appropriated in December,
2005)
332,000
Human Services Program (previously appropriated in December,
2005)
$2,141,535
1 Total Funding Available
Unprogrammed funding is the amount ofgrant finds available from a fiscal year federal grant that
hasyet to be allocated to a specific project. Reprogrammed fording is the amount ofgrant finds that
were previously allocated to a project(s) but have been returned to the City due to failure to
complete the project(s).
The CDBG Commission presents recommendations as to which programs and projects should
receive funding from the available f coding sources presented above. The following tables present
the allocations recommended by the Commission to the City Council within each major category:
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May 16, 2006
PLANNING AND ADMINISTRATION
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
PA-1 City of Fort Collins
$74,541
$74,541
$0
HOME Administration
PA-2 City of Fort Collins
$212,306
$212,306
$0
CDBG Administration
The HOME FY 2006 Grant and Program Income totals $745,419. HUD regulations limit a
maximum of 10% for Administrative purposes, or $74, 541.
The CDBG FY 2006 Entitlement Grant and Program Income totals $1, 099, 758. HUD regulations
limit a maximum of 20% of these funds for Planning and Administrative purposes, or $219, 952. The
recommended amount of $212,306 represents $19.3% of the maximum 20% allowed. The amount
of CDBGfunds beingproposed for administrative purposes forFY2006 is not significantly different
than the amount used in FY 2005. The higher percentage for administrative purposes is due to a
10% reduction in the City's Entitlement Grant amount.
AFFORDABLE HOUSING AND PUBLIC FACILITIES
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
HO-1 FCHC - Village on
$324, 964
$300, 000
$24, 964
Swallow Rehabilitation
HO-2 FCHA - First Step Rental
$229, 920
$194, 912
$357008
Assistance for Homeless and
(Grant)
(Grant)
Near Homeless Families
HO-3 Accessible Space, Inc.
$350, 000
$350, 000
$0
Supportive Housing Phase II
HO-4 Redstone Village
$341, 800
Withdrawn by
Apartments
request of applicant
HO-5 CARE Housing "Green
$700, 000
$400, 000
$300, 000
Built " Land Acquisition
PF-1 Harmony House Visitation
$7, 025
$7, 025
$0
Center Window Rehabilitation
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May 16, 2006
Excepted as noted above, all funding recommendations in the Affordable Housing and Public
Facilities category are in the form of a "Due on Sale Loan + 5% Simple Interest. "
PUBLIC SERVICE
Applicant
Funding
Commission's
Unfunded
Project/Program
Request
Recommendation
Balance
PS-1 FCHC
$60,171
$0
$60,171
Case Management
PS-2 Springfield Court
$18,000
$18,000
$0
Sliding Scale Assistance
(CDBG grant)
PS-3 Springfield Court
$10,400
$10,400
$0
Pre -School Assistance
(CDBG grant)
PS-4 B.A.S.E. Camp Sliding
$33,815
$33,815
$0
Scale Assistance
(CDBG grant)
PS-5 RVNAHome Health Care
$35,000
$25,000 (HSPgrant)
$10,000
PS-6 Elderhaus Therapy Center
$21,000
$16,920 (HSPgrant)
$4,080
PS-7 ELTC
$20, 000
$20, 000
$0
Employment Skills
(CDBG grant)
PS-8 PS-S
$18,000
$18,000
$0
Service for Single Parents
(CDBG grant)
PS-9 United Way
$35,000
$35,000 (HSPgrant)
$0
HPI Rent Assistance
PS-10 VOA Meal Program
$14, 600
$14, 600 (HSP grant)
$0
PS-11 Neighbor -to -Neighbor
$61,120
$58,599 (HSPgrant)
$2,521
Housing Counseling
PS-12 DRS
$20,002
$20,002
$0
Access to Independence
(HSP grant)
PS-13 Neighbor -to -Neighbor
$15,000
$15,000
$0
Rent Assistance
(HSP grant)
PS-14 NCAP
$19,000
$16,409 (HSPgrant)
$0
Case Management
$2,591 (CDBG grant)
PS-15 CCN Shelter Operations
$42,158
$42,158 (CDBG
$0
grant)
31
May 16, 2006
Applicant
ProjectlProgram
Funding
Request
Commission's
Recommendation
Unfunded
Balance
PS-16 CCN Senior Services
$15,000
$0
$15,000
PS-17 Turning Point STEP
$16,000
$0
$16,000
PS-18 Respite Care
Sliding Scale Assistance
$20,000
$20,000
(CDBG grant)
$0
PS-19 Food Bank Kids Cafe
$15,472
$15,472 (HSPgrant)
$0
PS-20 LCMH Case Manager
$25, 000
$0
$25, 000
PS-21 United Day Care
Sliding Scale Assistance
$60,500
$60,500
(HSP grant)
$0
PS-22 United Way 2-1-1
$35,300
$0
$35,300
PS-23 Crossroads Safehouse
Advocacy Program
$46,800
$36,400
(HSP grant)
$10,400
PS-24 Women's Resource Center
$18, 098
$18, 098 (HSP grant)
$0
PS-25 CASA Harmony House
Scholarship
$7,856
$0
$7,856
The CDBG FY 2006 Entitlement Grant and Program Income totals $1, 099, 758. HUD regulations
limit a maximum 15%ofthesefunds, or $164, 964, for use in the Public Services category. The City's
Human Services Program adds $332, 000 for use in the category, for a total of $496,964 of available
funding.
A summary ofthe Commission's funding recommendations by category is presented in the following
table:
Recommended
Funding
% of Total
Category
$ 286,847
14.1 %
CDBG and HOME Administration
$1,244,912
61.2%
Affordable Housing
$ 7,025
.3%
Public Facilities
$ 496,964
24.4%
Public Services
$2, 035, 748
100.0%
Total
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May 16, 2006
The CDBG Commission has recommended that $2,035,748 of the available funding amount of
$2,141,535 be allocated leaving a balance of $105,787. The Commission recommends all of the
funds from all sources be utilized except for $105, 787 from the FY2006 CDBG Entitlement Grant.
The $105,787 will be carried over and will be available for allocation in the fall cycle of the
competitive process.
The City's HOME Participating Jurisdiction Grant of $645,419 and the unanticipated HOME
Program income of $100, 000, less $74,541 which is being expended on administrative expenses as
identified above, will be available for allocation in the fall cycle of the competitive process. "
Mayor Hutchinson stated there were two Resolutions and two Ordinances to be considered. There
would be one opportunity for a staff presentation and one opportunity for citizens to address all of
the items. He would then entertain a motion to adopt the two Resolutions and a motion to approve
the two Ordinances.
City Manager Atteberry introduced the agenda item and stated there would be a staff presentation.
Ken Waido, Chief Planner, presented background information regarding the agenda item. He stated
there was slightly more than $2.1 million available for allocation from the funding sources and 33
applications for close to $2.6 million were received. Not all of the applications could be funded and
some could not be fully funded. He outlined the review and recommendation process and stated the
Council was the final decision maker regarding funding allocations. The CDBG Commission's
recommendations were that about 61% of the money be allocated to affordable housing programs
(slightly more than $1.2 million), that public and human resources receive about 25% of the money,
that some money be allocated for administrative purposes, and that one public facility be funded.
He stated staff and the chair of the CDBG Commission were available to answer any questions.
David McDanel, Disabled Resource Services, thanked the City Council for funding for the
organization.
Emily Zaynard, Crossroads Safehouse, thanked the CDBG Commission for recommending funding
for the organization and spoke regarding the services provided by Crossroads Safehouse.
Valerie Baker -Easley, Homeless Prevention Initiative Director, expressed appreciation for funding
for the organization.
Chadrick Martinez, CARE Housing Executive Director, encouraged the Council to approve the
recommendation for affordable housing funding.
Linda Preston, BASE Camp Executive Director, thanked the Council and CDBG Commission for
the allocation of dollars for the program.
Helen Somersall, Catholic Charities Northern Regional Director, urged the Council to support the
public services portion of the funding recommendation.
33
May 16, 2006
Sherry Talbot, Respite Care Executive Director, urged Council to approve the recommended
funding.
Anne Porter, United Day Care Center Executive Director, expressed appreciation for funding for the
organization.
Councilmember Roy made a motion, seconded by Councilmember Manvel, to adopt Resolution
2006-059 and Resolution 2006-060.
Councilmember Weitkunat stated this program was a "plus" for the City and the CDBG Commission
had a "rigorous criteria -driven" approach to determining allocations. The Council held a work
session with the Commission on the recommended allocations. She thanked the Commission for
its "excellent work" on developing recommendations.
Councilmember Roy stated there had been a lengthy work session on this and the CDBG
Commission's hard work had been "thorough."
Councilmember Ohlson thanked those who spoke and commented that the CDBG program appeared
to be "under assault" at the federal level while there were "more needs" every year. He stated the
money did an "incredible amount of good work", thanks to the organizations and the CDBG
Commission.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Councilmember Weitkunat made a motion, seconded by Councilmember Ohlson, to adopt Ordinance
No. 084, 2006 and Ordinance No. 085, 2006 on First Reading. Yeas: Councilmembers Brown,
Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Items Relating to Spring Creek Farms
Rezoning and Amendment to the Structure Plan, Failed
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY
A. Resolution 2006-061 Amending the Citys Structure Plan Map.
34
May 16, 2006
B. First Reading of Ordinance No. 086, 2006, Amending the Zoning Map of the City of Fort
Collins by Changing the Zoning Classification for That Certain Property Known as the
Spring Creek Farms Rezoning.
APPLICANT.- Jim Sell Design, Inc.
do Dave Shoup
153 West Mountain Avenue
Fort Collins, CO 80524
OWNER: SC Group Investments, LLC
6300 South Syracuse Way, Suite 293
Englewood, CO 80111
This is a request to amend the City Plan Structure Plan map and a concurrent request for a
corresponding rezoning. Stafffinds the amendment to the Structure Plan to be inconsistent with the
vision, goals, principles and policies of City Plan. The Structure Plan amendment is not warranted
since the existing mix of retail and service uses found within the Rigden Farm Neighborhood
Commercial Center located directly across Timberline Road provides sufficient goods and services
necessary to sustain nearby neighborhoods. The rezoning fails to satisfy the criteria of Section 2.9.4
of the Land Use Code.
The surrounding zoning and land uses are as follows:
N. MMN and E; Vacant. Planned and approved City Police Administration Building
I;
Recently approved retail and industrial (Timberline Center) and existing
industrial uses
S.
RL;
Meadows East Neighborhood (single family housing),
SE:
NC;
The Shops at Rigden Farm Neighborhood Commercial Center
MMN-
Rigden Farm multifamily housing
LMN,•
Rigden Farm multifamily and single family housing, Timberline Church
E:
MMN:
Multi family and single family housing (Sidehill), Cargil seed research
facility
W
RL;
Existing Parkwood East neighborhood, UPISP Railroad
tracks, city trail running adjacent (west on the railroad tracks
NW.-
MMN;
Parkwood East Apartments,
POL;
Edora Pool and Ice Center, Edora Park, Spring Creek Trail.
The property was annexed in November 1997 as a portion of the "Timberline Annexation. "
The property was later zoned in 2001, as part of the larger 55-acre Johnson Farm Rezone at the
northwest corner of Timberline Road and Drake Road. This larger property was rezoned from T-
Transition to a combination ofMMN (30 acres), LMN (18.6 acres) and E-Employment (7.2 acres).
35
May 16, 2006
The present 5-acre Spring Creek rezone request represents a portion of the Johnson Farm property
included within the 2001 rezoning.
In the 2001 rezoning, a market analysis of the site based on (then) current and future land use
inventory and absorption rates was submitted as one of a number of considerations. The market
analysis concluded that `this location is at a competitive disadvantagefor retail or employment uses
because it has no direct connection to I-25" and that "nearby retail development in Rigden Farm
will provide an attractive convenience to prospective residents within walking distance of this site ".
During the review of the 2001 rezone request, when the subject property received MMNzoning, the
staff and Planning and Zoning Board concluded that:
the location of MMN is appropriate given the close proximity to the Neighborhood
Commercial Center in Rigden Farm with the MMN neighborhood supporting the
commercial uses and vice versa;
the site is well suited for MMN uses because it is on a designated future high
frequency transit route; and
the location is well suited for MMN uses because of the close proximity to
employment centers along Prospect, further south on Timberline, and along
Harmony Road.
Recently, a requestfor a 93, 000 square foot Citypolice services facility was approved on 7.53 acres
located approximately 250 feet north of the requested rezoning area on a parcel located at the
southwest corner of Timberline Road and Nancy Gray Drive.
The Planning and Zoning Board approved the Timberline Center Project Development Plan in
December 2005, a mixed use project located just north of the proposed Police Services
Administration Building and within the I -Industrial zone district. Specific non-residential and non-
industrial uses within the Timberline Center include a convenience shopping center, general office,
bank, and standard and fast food restaurants. Total gross leasable square footage within the entire
development is 179,200 square feet.
Land Use Code:
The regulations covering rezonings in the City of Fort Collins are contained in Division 2.9 of the
Land Use Code. Section 2.9.4 (H) (2) indicates the following:
Mandatory Requirements for Quasi -Judicial Rezonings. Any amendment to the
Zoning Map involving the zoning or rezoning ofsix hundred forty (640) acres of land
or less (a quasi-judicial rezoning) 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 Comprehensive Plan; and/or
K2
May 16, 2006
(b) warranted by changed conditions within the neighborhood surrounding and
including the subject property.
Section 2.9.4 (H) (3) of the Land Use Code indicates the following:
Additional Considerations for Quasi -Judicial Rezonings. In determining whether to
recommend approval of any such proposed amendment, the 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 natural f unctioning of the environment;
(c) whether and the extent to which the proposed amendment would result in a
logical and orderly development pattern.
APPLICANT'S REQUEST AND JUSTIFICATION:
Dave Shoup of Jim Sell Design, Inc., an authorized representative of the property owner, has
submitted a rezoning petition and corresponding request to amend the Structure Plan.
A summary of the applicant's reasons for the request is captured below. The applicant's more
detailed written statement, along with corresponding City Plan policies and financial analyses, are
attached.
The proposed amendment would slightly expand the physical size of the
existing NC zone and bring the MMNzone closer to a 114 mile depth on the
northerly boundary. This would result in a more logical and orderly
development pattern.
The existing RL neighborhood to the west represents 800 acres of housing
with no access to existing or planned centers between the Prospect/Lemay
Center and the Harmony Corridor without crossing a major north -south
arterial street.
Expanding the NCzone across Timberline will provide convenient access for
the existing RL neighborhoods to the west and easy in -out access for south
bound traffic on Timberline and west bound traffic on Drake. The net effect
will be a reduction in vehicle miles traveled.
37
May 16, 2006
• Expanding the NC zone across Timberline will allow more goods and
services to be available to bicyclists from the west without crossing a major
arterial street.
• Expanding the NC zone across Timberline will allow more goods and
services to be available to pedestrians from the west without crossing a
major arterial street.
• The planned and existing neighborhoods west of Timberline will be much
better served if there are NC uses also on the west side of Timberline.
• The current MMNzoning on the west side of Timberline extends north nearly
a half -mile f •om Drake. This would be brought more in line with this Policy
if the subject property were rezoned to NC.
• The existing RL neighborhood and the currently MMN district to the west,
have no access to the existing Rigden Center without crossing Timberline.
STAFF ANALYSIS:
City Plan Structure Plan Map Minor Amendment:
The City Structure Plan, an element of the City's comprehensive plan, is a map that sets forth a
basic pattern of development, showing how Fort Collins should grow and evolve over the next 20
years. The map designates the L-shaped subject parcel at the northwest corner of Drake and
Timberline Roads as Medium Density Mixed Use Neighborhood.
The applicant's request is to redesignate the property as "Neighborhood Commercial Center"
Review Criteria for Structure Plan Minor Amendments
Appendix C of City Plan outlines mandatory requirements for public notice, review process and
evaluation criteria for minor amendments to City Plan, including Structure Plan map amendments.
The Plan text states:
A plan amendment will be approved if the City Council makes specific findings
that:
The existing City Plan and/or related element thereof is in need of the proposed
amendment; and
Theproposed plan amendment will promote thepublic welfare and will be consistent
with the vision, goals, principles and policies of City Plan and the elements thereof. "
im
May 16, 2006
Relevant Principles and Policies of City Plan:
PRINCIPLEMMN-3: ANeighborhood Commercial Center will provide uses to meet
consumer demands from surrounding Residential Districts for everyday goods and
services, and will be pedestrian -oriented places as a focal point for the surrounding
neighborhoods.
Policy MMN-3.1 Land Uses/Grocery Store Anchor. A grocery store, supermarket,
or other type of anchor (e.g., drugstore) should be the primary fractional offering
of these Centers. A mix of retail, professional office, and other services oriented to
serve surrounding neighborhoods are the secondary offerings. The Neighborhood
Commercial Center will provide locations for some limited auto -related uses.
Policy MMN-3.2 Surrounding Neighborhoods. The Neighborhood Commercial
Center should be integrated in the surrounding Medium Density Mixed -Use
Neighborhood, contributing to the neighborhood's positive identity and image.
Residents should be able to easily get to the Center without the need to use an
arterial street.
The strength ofthe applicant's justification for rezoning lies in City Plan 's emphasis on bicycle and
pedestrian mobility. Policy MMN-3.2 clearly states that "(r)esidents should be able to easily get to
the Center without the need to use an arterial street". The applicant correctly points out that
residents of the surrounding Parkwood, Parkwood East and Meadows East neighborhoods must
cross either Timberline Road or Lemay Avenue to access the neighborhood -scale commercial
centers that serve their neighborhoods: The Shops at Rigden Farm and Scotch Pines Shopping
Center. It is acknowledged that recent Timberline Road improvements include enhanced crosswalks,
but the relatively high existing traffic speeds and volumes, makes thepedestrian and bicycle crossing
experience safe, but not particularly desirable. With Timberline potentially widened to 6 lanes in
the f uture, crossing Timberline on foot or by bike will become more challenging.
The applicant also makes a case that the rezoning will bring the development pattern more in line
with the policy regarding the size of the MMN district. Policy MMN-2.1: stipulates that an MMN
district 'should extend an average ofabout one -quarter (114) of a milefrom the edge ofthe adjacent
Neighborhood Commercial Center... " While the applicant accurately states that the MMNdistrict
extends beyond 114 mile (actually 113 mile where the applicant has incorrectly stated % mile) north
of the NC district on Drake Road, the impact of the new Police Services building has not been
accounted for. The Police Services building, which is defined as a "community facility ", is located
within the MMNzone district. Ifthe Police Services site were netted out ofthe district, since it is not
a residential use, the resulting MMN district is almost exactly 114 mile in length.
The applicant has submitted a market analysis, demographic profile and current retail inventory
(documents attached) contending the existing NC zoning at Rigden Farm does not satisfy
commercial demand within a 1.5 mile radius trade area. The market analysis concludes that a need
exists for an additional 182, 000 square feet of commercial space. In part, the Applicant attributes
39
May 16, 2006
this to the transfer ofthree (3) acres of the Rigden Farm development zoned NC as a senior housing
development that will not be developed for commercial uses, and that no other additional land
within the trade area is available to satisfy commercial demand.
While the applicant has made a good point about the challenges to bicycle and pedestrian access
to existing neighborhood centers, other fundamental City Plan polices outweigh and override this
particular concern.
Staff contends a change in the Structure Plan is not warranted primarily given the existence of the
Shops at Rigden Farm. This new commercial center, located diagonally across the intersection from
the property, fulfills the basic consumer demands needed to serve multiple neighborhoods located
within a one mile radius. The center provides the land development pattern and uses described in
City Plan. Tenants include a King Soopers supermarket with a pharmacy, a freestanding bank, gas
station, restaurants, and several existing and future inline retailers providing a range ofgoods and
services.
In fact, the applicant's submitted Market Conditions Map (labeled Exhibit E in Attachment 3) quite
clearly substantiates staffsposition. The map shows how Neighborhood Commercial Centers have
been strategically placed to capture the market within a short vehicle commute and can also readily
allow for alternative travel methods, while limiting their location so as to enhance the economic
strength ofNCdistricts so they are able toprovide high quality amenities, and site and architectural
design, as envisioned under City Plan.
The submitted market analysis is flawed with respect to use of a 1.5 mile trade area radius versus
a one -mile trade area radius, and the lack of attention given to other potential non-residential uses
within the immediate area. If a one -mile trade radius is utilized for Neighborhood Commercial
centers within this quadrant of the community, area residents are clearly served by existing and
planned neighborhood scale commercial centers. Those residing closer to Lemay Avenue, for
example, are conveniently located near the Scotch Pines Shopping Center, which is anchored by the
Sunflower Market and provides several other essential services. Similarly, the approved (but not
constructed) Harmony School Shops at the northeast corner of Timberline and Harmony will
provide a full range of services to neighborhoods south of Horsetooth Road. The study failed to
incorporate planned retail, restaurant and service uses provided within the recently approved
Timberline Center, located 114 mile north of the subject property, and within the approved Sidehill
neighborhood center planned across the street and approximately % mile to the north.
Ifthe applicant desires to provide truly secondary and supportive commercial uses within the MMN
zone district, the existing zoning provides additional opportunities. First, the Code allows up to
15% of the MMN zoned propertyfor "secondary uses ", including Personal and Business Service
Shops. Such uses are defined as "shops engaged in providing services generally involving the care
of the person or such person's apparel or rendering services to business establishments such as
laundry or dry cleaning retail outlets, portrait/photographic studios, beauty or barber shops,
employment service, or mailing or copy shops ". Second, the Land Use Code was amended this past
year to make provision for small-scale restaurants, delis, coffee shops, and similar uses to be
40
May 16, 2006
incorporated into mixed -use buildings within the MMN zone under specific size and operational
limits.
The segment of Timberline Road between Harmony Road to Conifer (extended) has also been
designated as an Enhanced Travel Corridor (ETC) within the Comprehensive Plan. An ETC
provides high frequency /high efficiency travel opportunities, including transit services that link
activity centers within the City. The Rigden Farm Neighborhood Center provides special design
opportunities, including a future bus stop and a site plan with enhanced pedestrian access to and
from the future bus stop located along Timberline Road.
Since there is no adopted Subarea or Corridor Plan for the Timberline road frontage, staff relies
on the Structure Plan and zone district designations to provide guidance. The direction ofthese two
documents points to a concentration ofretail rather than along street frontages. i. e., the area is not
zoned C, Commercial because the community is trying to avoid replication of the pattern of
commercial development along major arterial streets.
Request to rezone from Medium Density Mixed Neighborhood, M-M-N to Neighborhood
Commercial, NC —Section 2.9.4(H):
The request to rezone from MMN to the NC zone district is considered quasi-judicial (versus
legislative) since the parcel is less than 640 acres. There are five standards that may be used in
evaluating a request for a quasi-judicial rezoning. These standards, and how the request complies,
are summarized below:
A. Any amendment to the Zoning Map shall be recommended for approval only
iftheproposed amendment is consistent with the City s Comprehensive Plan;
and/or.
As stated above under the Structure Plan amendment analysis, staff has
concluded that the proposal is inconsistent with the principles and policies
of City Plan.
B. Any amendment to the Zoning Map shall be recommended for approval only
if the proposed amendment is warranted by changed conditions within the
neighborhood surrounding and including the subject property.
Changes to the immediate area since 2001, when the property was zoned
MMN, including improvements to Timberline Road and anticipated Police
Services building, do not trigger the need to rezone the property. The
recently constructed Shops at Rigden Farm, located diagonally across the
intersection from the property, fulfills the basic consumer demands needed
to serve multiple neighborhoods located within a reasonable distance.
Tenants ofthis Center include a King Soopers supermarket with a pharmacy,
a freestanding bank, gas station, and several existing and future inline
41
May 16, 2006
retailers providing a range of goods and services. Further, the Timberline
Center, which was approved in December 2005 for propertyjust north of the
Police Services Administration Building, provides additional services within
the Timberline Road corridor.
C. Whether and the extent to which theproposed amendment is compatible with
existing and proposed uses surrounding the subject land, and is the
appropriate zone district for the land.
As mentioned, the proposed NC zone district is not an appropriate zone
district given the property's proximity to the NC district in place cater-
cornered from the site and the other opportunities for non-residential
opportunities already afforded within the MAIN zone district.
D. 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 of the environment.
There is no evidence that the rezoning will result in significant adverse
impacts to the natural environment.
E. Whether and the extent to which the proposed amendment would result in a
logical and orderly development pattern.
The rezoning is inconsistent with the development pattern envisioned under
the City's Structure Plan. This City Structure Plan configuration for
Neighborhood Centers is a different approach to commercial area design
than the past. Structure Plan limitations have been a response to
proliferation of commercial developments along arterial streets. The limits
focus commercial services in a way that best address the aesthetic and urban
form implications, as well as traffic impacts, brought about by strip
development oriented to arterial streets.
Findings of Fact/Conclusion:
In evaluating the request to amend the Spring Creek Farms Structure Plan minor amendment and
rezone, Staff makes the followingfndings offact:
A. The Structure Plan amendment is not warranted since the existing mix of retail and service
uses found within the Rigden Farm Neighborhood Commercial Center located directly
across Timberline Road provides sufficient goods and services necessary to sustain nearby
neighborhoods. Further, the Rigden Farm Neighborhood Center has been effectively
integrated with an overall street pattern, design and scale that is compatible with the
42
May 16, 2006
surrounding neighborhoods and not segregated from them, and has been designed in a
manner that fosters transit service for the Center and surrounding neighborhoods.
B. The proposed Structure Plan amendment and rezone is not supported by the City's
Comprehensive Plan policies and will not promote the public welfare.
C. There are no changed conditions within the neighborhood surrounding and including the
subject property that warrant the rezone.
D. The proposed rezoning is not compatible with the existing and proposed uses surrounding
the subject land, and is not the appropriate zone district for the land.
E. The proposed rezoning will not result in significantly adverse impacts on the natural
environment.
F. The proposed rezoning does not result in a logical and orderly development pattern.
NEIGHBORHOOD INFORMATION MEETING
Although quasi-judicial rezone applications are exempt from the neighborhood meeting
requirements, a neighborhood meeting was held to discuss the rezoning and structure plan
amendment on March 2, 2006. A summary of this meeting is attached. In general, area residents
provided a mixed response to the applicant's request. Some residents expressed support for
providing retail and restaurant uses closer to their neighborhood, allowing convenient access to
services without negotiating the Drake and Timberline intersection. Others questioned the need for
additional retail uses along the Timberline frontage and expressed a fear that the minor rezoning
request would "open the door" for future commercial rezonings within the area. In the opinion of
some residents, the rezoning might increase the intensity of trajfc and decrease the level of safety.
During the course of the meeting, there was considerable discussion about the anticipated increase
in traffic volumes along Timberline Road in the future, particularly in light of the upcoming road
widening project, and a fear that associated safety and congestion issues will be exacerbated as the
area becomes more developed.
STAFF RECOMMENDATION
Staff recommends the following:
A. Denial of the requested Structure Plan Map amendment from Medium Density Mixed Use
Neighborhood to Neighborhood Commercial Center on a 5.05 acre parcel located at the
northwest corner of Timberline and Drake Roads.
B. Denial of the requested rezoning from MMN, Medium Density Mixed Use Neighborhood to
NC, Neighborhood Commercial on a 5.05 acre parcel located at the northwest corner of
Timberline and Drake Roads.
43
May 16, 2006
PLANNING AND ZONING BOARD RECOMMENDATION
The Planning and Zoning Board, at its regular monthly meeting on April 20, 2006, voted 4-1 (Fries
opposed,- Stockover and Meyer absent) to recommend denial to the City Council of the change to the
City Plan Structure Plan map and denial of the requested rezoning. The rezoning request was
originally scheduled for the March 16, 2006 hearing, but was continued for one month at the request
of the applicant.
Public testimony was limited to that provided by one resident of the Parkwood neighborhood who
expressed support for the applicant's request. "
Mayor Hutchinson asked the City Attorney to provide a framework for discussion.
City Attorney Roy stated this involved a quasi-judicial decision in which the Council would conduct
a public hearing and decide how established criteria should be applied to a specific case. The Code
established the criteria that were to be applied to rezoning applications and applications for
amendments of the City Structure Plan. The criteria for a rezoning were as follows: there were two
mandatory requirements that the requested zone district must either be consistent with the City's
Comprehensive Plan, or it must be warranted by changed conditions within the neighborhood
surrounding and including the subject property, or both. There were additional considerations:
whether, and the extent to which, the proposed amendment was compatible with existing and
proposed uses surrounding the subject land, and whether it was the appropriate zone district for the
land; whether, and the extent to which, the proposed amendment would result in significantly
adverse impacts on the natural environment, including but not limited to air, water, noise, stormwater
management, wildlife, vegetation, wetlands, and natural functioning of the environment; and
whether, and the extent to which, the proposed amendment would result in a logical and orderly
development pattern. When a zone district was requested that was not consistent with the existing
Structure Plan, Council was presented with a proposed amendment to the Structure Plan. If Council
believed the requested rezoning was appropriate, the Structure Plan would need to be amended to
make the rezoning consistent with the Comprehensive Plan. The criteria for amending the Structure
Plan were: the existing City Plan (or related element of City Plan) was in need of the proposed
amendment; and the proposed amendment would promote the public welfare and be consistent with
the vision, goals, principles, and policies of City Plan and its elements. The agenda item summary
included the principles and policies the staff believed were relevant and had led to the formulation
of the staff recommendation. There were two separate but related decisions: (1) whether to amend
the Structure Plan, which would depend on whether the Council believed that the proposed change
was necessary and would be consistent with the policies; and (2) the rezoning, using the described
criteria.
Mayor Hutchinson stated the two items would be handled as two separate motions and actions and
there would be one staff presentation and one opportunity for citizen comments on one or either of
the issues.
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May 16, 2006
Cameron Gloss, Current Planning Director, stated this was a request to rezone a 5.05 acre parcel on
the northwest comer of Drake and Timberline Roads from MMN - Medium Density Mixed Use
Neighborhood to NC - Neighborhood Commercial. He presented visual information showing an
aerial photograph of the L-shaped site and its surroundings. In 2001, there was a request for
rezoning from Employment to MMN along the east half of the site, LMN as a transition to the
Parkwood neighborhood to the west, and Employment on the north end for the original 55 acre
Spring Creek Farms property. He presented visual information showing a one -quarter mile radius
and noted the applicant had made some statements about that distance. He noted it was almost
exactly one -quarter mile from the NC designation across the street to the edge of this property, with
the exception of the Police Services Building, which was largely in the MMN zone and which was
permitted as a community facility in that zone district as a secondary use. Staff believed the size of
the MMN district in this case satisfied the City Structure Plan and the policy stating the MMN
district should extend approximately one -quarter of a mile from the NC district. He presented visual
information showing the other zoning designations in the area. He stated the present designation of
MMN was primarily a residential district with detached and attached residential units. In December,
the Council approved a Code change that would allow a greater amount of secondary uses of a
commercial nature (coffee shops, delis, small scale restaurants, etc.) with small size. Convenience
retail (personal and business services) was also permitted. He stated 15% of the zone district was
permitted to have those types of uses. The NC zone was more intensive and allowed a wide range
of goods and services to be provided, primarily at the neighborhood scale. Those uses were typically
anchored by a grocery store or supermarket. He presented visual information showing the most
recently constructed neighborhood center (The Shops at Rigden Farm) and surrounding parcels. The
applicant had made a number of arguments about this proposal and staff had reviewed related City
Plan and policies. Policy MMN-3.2 provided that: "Residents should be able to easily get to the
center without the need to use an arterial street." This was an issue for NC centers at arterial
intersections when the intention was to serve four or five neighborhoods whose residents would have
to cross an arterial to reach the center. He presented visual information showing pedestrian routes
from nearby developments to the site and the Rigden Farm center. He presented a graphic depicting
the one -mile service area for the neighborhood center. He stated other centers were existing,
proposed, or approved and not yet built within the Timberline corridor. He presented visual
information showing the overlap in one -mile service areas and stated staff believed there was good
coverage for services to be provided under the existing zoning and approvals. Staff understood the
applicant's arguments relating to pedestrian/bicycle accessibility. He stated "on balance" the staff
believed that the existing condition with the NC center at the Rigden Farm satisfied needs for basic
goods and services for this area. Staff acknowledged there were many changing conditions since
2001 and believed the NC center designation had been satisfied with the present zoning. Staff felt
that there was no need to change the Structure Plan.
Mayor Hutchinson stated at a recent work session, the Council expressed a desire to give the
applicant 10 minutes to speak in these types of situations. He stated the applicant would have 10
minutes to speak and others would have five minutes to speak.
Peter Cudlip, SC Group Investments, LLC, 5460 South Quebec Street, Greenwood Village,
representing the applicant, stated the applicant was requesting a zoning change from MMN to NC
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May 16, 2006
for the five acres on the northwest comer of Drake and Timberline Roads and an amendment to the
City's Structure Plan. The Council had information comparing MMN and NC, and the Council
packet also included a list of uses that would be covenant restricted. Those uses would be restricted
as a result of input received at meetings with representatives ofthe two HOAs. He stated 980 people
from the surrounding area were invited to the general meeting and the applicant was only required
to invite 184. The City received only one negative comment and the person making that comment
supported the application at the Planning and Zoning Board hearing. The applicant agreed to deed
restrict the property from undesirable NC uses i.e., bars and taverns, fuel stations, auto repair and
drive -through restaurants. The applicant was asking for the zoning change and Structure Plan
amendment for the following reason: five acres of Commercial could be built in the MMN zone but
the MMN zone was too restrictive. Restaurants were only allowed up to 1,400 square feet, but a
normal neighborhood restaurant was 2,000 to 4,500 square feet. Until the recent change in the
allowed uses in the MMN zone, the applicant could not even have a coffee shop. Even with the
recent changes there could not be a breakfast restaurant. MMN would also not allow for general
retail and would only allow personal services retail. The neighborhood and the Police Services
employees would need expanded uses so they would not have to cross Timberline, which was being
widened. He stated staff had verified that not one square foot of Commercial had been built in nine
years in the MMN zone. This meant that no sales tax had been generated from the MMN zone.
Changed conditions warranted modifying the Structure Plan. The new Police Administration
Building was being built in the MMN zone, not in the Employment zone, and the widening of
Timberline had created the need for a neighborhood center that would allow general retail,
neighborhood restaurants, and a gathering place that would be accessible without having to cross one
of the largest intersections in Fort Collins. There was a need for additional NC zoning. The
applicant's studies showed a need for an additional 180,000 square feet of retail in the market area.
Staff supported using a one -mile radius for all neighborhoods i.e., a "one size fit all approach for the
entire City" regardless of the zoning mix and the market area. The applicant had developed over 4.5
million square feet of retail and analyses were done on population density, disposable income,
employment base, and traffic patterns in the market areas. Not all neighborhoods were the same and
a 1.5 mile market area was used to determine the market area demand. Three acres of the Rigden
Farm NC was being used for senior housing and that this equated to 20,000 square feet of retail that
would not be developed in Rigden Farm. The recently approved Timberline Center to the north was
in an Industrial zone and would be self -storage and automotive uses with a coffee shop and a quick
serve restaurant. It would not be a neighborhood center catering to the neighborhood and would not
be easily accessible from the neighborhood. The Summerhill Commercial across Timberline and
to the north was zoned LMN. It was not built and had no tenants and would have a problem with
developing under the LMN zoning. If the zoning change was approved, the applicant would develop
a 35,000 square foot center in four buildings that would be a pedestrian -friendly, cohesive
neighborhood center overlooking a water feature at the corner of Drake and Timberline Roads. NC
was needed across the street from Rigden Farm because the new 96,000 square foot Police
Administration Building was being built and would employ up to 400 people. There was no
neighborhood center servicing this area that was accessible without crossing the arterial street.
Timberline Road would be one of the widest arterials in Fort Collins and would be unsafe to cross
for pedestrians and bicycles. The City had previously allowed NC zoning across arterials. The
landowners of the balance of Spring Creek Farms had agreed there would be no more Commercial
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May 16, 2006
development on the remaining property. This would not create another Commercial strip like
College Avenue. The project would have 650 feet fronting Timberline Road, 600 feet of MMN
zoning would be residential, and the Police Administration Building would be 600 feet of frontage.
There was residential across Timberline Road, to the south (west of Timberline Road) was
residential, and across the street was Rigden Farm. The application met one or more of the criteria
required under Section 2.9.4 of the Land Use Code. The request was consistent with the City's
Comprehensive Plan; changed conditions warranted modifying the City's Structure Plan; there were
other places in the City with NC zones across arterials; the new Police Administration Building and
the widening of Timberline Road had greatly changed the complexityofthe neighborhood; there was
a market demand for additional services; walking across Timberline would be less pedestrian -
friendly after the widening was completed; the rezoning request was compatible with existing and
proposed uses surrounding the subject land; this would be the appropriate zone district; that
undesirable uses would be deed restricted; and the services could not be provided under MMN
zoning. Market analyses showed there was enough demand for both Rigden Farm and this project.
Adding additional retail would create "synergy" between the two locations. There would be no
negative impact to the environment and it would provide the ability for people to bike and walk to
a neighborhood center instead of driving. The rezoning would result in a logical and orderly
development pattern and would generate new sales tax revenue amounting to about $315,000 per
year for the City. The City did not have a PUD process to allow determination of an exact zone and
it was necessary to go from MMN to NC and restrict the uses.
Brock Chapman, SC Group Investments,10766 East Crestline Circle, Englewood, property owner,
supported the application. He stated the Timberline adequate public facilities requirements restricted
development in this entire area. The property owner was one of two groups of property owners that
stepped forward to work with the City to fund a $2.3 million shortfall to go forward with the
Timberline Road improvements and formation of a special improvement district. The property
owner was contacted about a year ago by the City Real Estate Services Department regarding a
location for the Police facility. The property owner had six weeks to put together a transaction for
the City to acquire the 10 acres for the Police Administration Building. The property owner
recognized this would change the character of the project. The property owner was assured by staff
of "cooperation" in evaluating project needs because of the changed conditions. The Facilities
Department informed the property owner this was the single largest capital project of its kind in the
history of the City. He pointed out it "constituted a changed condition" to be in the middle of a 48
acre community. One of the strongest arguments for this rezoning was to allow pedestrian and
bicycle access for this future community and for everyone in Parkwood East and Parkwood. The
property owner was in full support of the application.
Jim Sell, 1737 Norwood Lane, asked if he would be allowed to speak. He stated his firm represented
the applicant and he was also a resident of the neighborhood. He stated he would like to "speak as
a neighbor."
City Attorney Roy stated this was allowable.
Mayor Hutchinson stated Mr. Sell would have five minutes to speak.
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May 16, 2006
Mr. Sell stated this was a neighborhood that was not "walkable." It was difficult to cross Timberline
to get from his neighborhood to Rigden Farm. It would be possible to walk the Power Trail to get
to this new project. He did not believe this project would have a negative impact on Rigden Farm.
There were two square miles of residential in this area with no Commercial activity except at the
corner of Prospect Road and Lemay Avenue. This project would be a "convenience" to the
neighborhood.
City Manager Atteberry stated he would like to address one of the issues brought up by the property
owner. He stated the City had enjoyed a "positive relationship" with the property owner of this site.
He was confident the property owner would agree that in reaching past agreements for acquisition
of the Police site the City did not make a commitment to any particular outcome relating to a
Structure Plan change or rezoning. The Council's decision should be based on the criteria outlined
by the City Attorney earlier.
Councilmember Kastein stated the City Manager's statement was supported by the fact that staffwas
recommending against the rezoning. He asked about the testimony regarding changed conditions
resulting from the new Police building with 400 employees. He stated the argument that there was
a need to provide food and other services through a Commercial development was "compelling."
He asked where those people would receive service if this development did not occur. Gloss stated
they would be able to obtain service at the Ridgen Farm center or the approved Timberline Center
250 to the north, which would have Commercial uses (including restaurants) on the easterly half of
the parcel. He stated it was staff's opinion that those two centers would satisfy the needs of
individuals working at the Police building.
Councilmember Kastein asked about the map showing the areas of influence of the commercial
centers. He asked if any "empirical analysis" had been done to see if customers for such centers
actually come from the one -mile radius. Gloss stated he was not aware of any detailed market
analysis. He stated the market had been "responding" by building centers in those locations. It was
staff s understanding that the market was supporting development of grocery store anchored NC
centers.
Councilmember Kastein asked if staff had any issues with the applicant's study of the market except
for the fact that the applicant used a 1.5 mile radius. Gloss stated the same argument could be made
for other centers. In the Structure Plan the City had determined that between 15 and 20 acres was
the appropriate size. The Rigden Farm center was about 17 acres. Staff did not see a need for this
project. The entire east side of Illinois Drive was designated NC but not yet developed. There was
therefore additional capacity available within the Rigden Farm center.
Councilmember Kastein stated he felt it was necessary to "test" City documents against real
situations and market conditions. He noted the applicant had market data to show that in the overlap
area there was enough population to support more than one center. Staff appeared to believe that
City Plan's one -mile guideline should still be followed. Gloss replied in the affirmative.
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May 16, 2006
Councilmember Brown asked if there was a traffic feasibility study since that seemed to be an issue.
Gloss stated there was a consultant's report on a traffic analysis that was part of the application. The
determination was that it would meet the requirements of the adequate public facilities ordinance.
Councilmember Brown asked if there was a traffic issue relating to access to the property with the
widening of Timberline ifthis property was to be rezoned. Gloss stated when the Spring Creek Farm
rezoning occurred in 2001 and the Sidehill property was master planned the City looked carefully
at access along Timberline and determined the spacing for roadways. The access road spacing would
be the same regardless of the zoning on this property and was based on the flow of traffic on
Timberline. This determination took future widening into consideration.
Councilmember Brown asked if this would be an issue for the property if it was rezoned. Gloss
replied in the negative.
Councilmember Ohlson noted that the Planning and Zoning Board and staff were recommending
denial. He stated City Plan should "mean something" and there should be predictability. Aside from
this and "fairness" to Rigden Farm, he was trying to determine why it would matter if the Structure
Plan and the rezoning were to be changed in this case. He asked how "important" this denial was
to staff. Gloss stated the basic tenets ofthe NC designation and Commercial development in general
in City Plan called for a different approach. Instead of promoting Commercial development along
arterial streets in a linear fashion, City Plan called for concentrating centers and providing
neighborhood centers with a full range of services. The intent was that these centers would have
"critical mass," public gathering spaces, architectural quality and uniqueness. The vision was that
neighborhood centers should be true gathering places for four or five neighborhoods. The Rigden
Farm developer spent a substantial amount of money and energy to provide the desired amenities.
Staff felt that this was "very important." hi this case, staff did not believe there was a need to change
the Structure Plan. Existing development would provide the desired amount ofneighborhood service
and provide the desired amenities and connectivity. Greg Byrne, CPES Director, supported the
statement made by Gloss.
Councilmember Weitkunat noted five acres would be taken from the MMN zone if this rezoning was
approved. She stated the assumption was that a particular use was desired that would not be possible
in the current zone district. Gloss stated the applicant had expressed this in testimony before the
Planning and Zoning Board and the Council. The Code had been changed to add some uses to the
MMN zone and provide more flexibility. The MMN zone district was intended to be predominantly
residential. Byrne stated staff was concerned that the MMN zone be a mixed use district and there
would be potential to do other things. Staff also had a concern about the MMN district "bleeding
off' the nonresidential intensity that was necessary to get the kind of center described earlier. Best
practice was to designate those areas and "hold to them" so that the centers would work. Allowing
Commercial to "bleed out" along the arterials would mean that such centers would never be built.
Councilmember Weitkunat stated the request was for NC zoning and the applicant had expressed
a willingness to place deed restrictions on over 19 uses allowed in the NC zone. This indicated to
her that the "applicant really doesn't want an NC zone" but instead "wants a particular use."
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May 16, 2006
Councilmember Kastein noted staffhad presented concerns about "bleeding off 'the MMN zone and
had indicated residential was needed to support the Commercial center. He noted the zoning was
Employment until a few years ago and suggested that people in the Employment district would also
have used the Commercial. Byrne stated there were a limited number of retail or support services
allowed in the Employment district to preserve the concentration of employment base and to provide
an intensity of retail development in centers.
Councilmember Weitkunat stated that since 19 NC uses were not wanted and because this was a
five -acre site, it appeared that NC was not really what was desired. It appeared that a restaurant and
retail use was what was desired. She asked if there was anyway to achieve that through the planning
process without a zoning change i.e., a variance, modification, etc. Gloss stated the Fort Collins
Code did not allow conditional uses or use variances. The Code provided a list of approved uses for
the district. The two options in this case were to rezone or to stay with the present zoning.
Councilmember Brown ask if the area to the west was platted with lots laid out. Gloss stated there
was a preliminary subdivision plat for that area and that the plat was not finalized and recorded.
Councilmember Brown noted that there were 118 lots and asked about the average number ofpeople
per household in Fort Collins. Gloss stated there were approximately 2.3 people per household.
Councilmember Brown stated there would be about 300 residents at some point, plus 400 working
at the Police Administration Building. He noted it would be difficult for that many people to cross
the street to go to a retail center. Gloss stated that was an argument for the rezoning and this logic
could be applied to other places in the City as well. This argument could lead to a pattern that was
not envisioned by the City i.e., that there should be NC on all four corners of such intersections.
Councilmember Manvel stated it would be difficult for pedestrians to cross the wide street. One
issue on the other side of the argument was that there could be a destination restaurant or retail store
at this location and people would have to cross the street from the other side to get to this location.
He believed the issue of having to cross the street was therefore a "wash." Having the retail center
on one side of the street made it possible for people who were there to go from one store to another
by foot or bicycle without having to cross the street. Gloss stated it would also provide the critical
mass in terms of size and amenities to "create a place."
Councilmember Manvel noted staff had mentioned that Rigden Farm had gone beyond the minimum
standards to make the project work. He noted there was empty space there and that building another
center across the street did not seem to be "City Plan."
("Secretary's Note: The Council took a brief recess at this point.)
Mayor Hutchinson stated the applicant would be given two minutes to present additional information
"in the interest of fairness."
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May 16, 2006
Mr. Cudlip stated as the applicant he was not able to present information about the project that was
envisioned, while staff was allowed to use examples such as Rigden Farm to illustrate neighborhood
centers. He stated the applicant intended to create the kind of project that would "create a place"
with a water feature and a gathering place for the neighborhood. This should be considered. It was
also important to note the one person who sent a letter of opposition to the Planning Department
ended up supporting the project because of the design. His company was one of the largest retail
developers in Colorado and was knowledgeable about trade and market areas and demand. The
applicant's market study showed that there was enough demand for Rigden Farm and the applicant's
project.
Mayor Hutchinson asked if the Council should consider such issues. City Attorney Roy stated the
Council could consider everything that had been said on both sides of the issue. He noted the criteria
were listed in the agenda item summary. The general rule was that applicants hold off on presenting
information on proposed plans until the Project Development Plan stage. The issues for Council to
discuss included changed conditions and compatibility with existing and proposed uses. It was
appropriate to talk about approved plans that were built or submitted. With regard to an applicant's
future applications of a Project Development Plan, there was no assurance that the particular plan
would be filed. Staff generally suggested Council not rely upon representations about what might
be filed but rather look at the kinds of uses that were permitted or existing in one zone district or the
other. The other concern about talking about future applications for PDPs was that Council may
have to hear on appeal the approval or denial of a PDP, which meant there was a need for the
Council to remain impartial. He suggested Council look at the criteria, determine what was relevant
and make a determination based on the criteria. City Manager Atteberry asked Gloss to give a
clarification regarding his response to Councilmember Weitkunat's question. Gloss stated
Councilmember Weitkunat had asked whether there was a use variance process available to the
applicant to limit the type of uses. His response was the City did not have a use variance process or
a conditional use permit, and this was correct. Potentially the Council was empowered to agree to
some kind of terms that would limit the uses. Staff did not recommend using that approach due to
administrative difficulties. City Attorney Roy stated conditional zoning and rezoning was possible.
Staff was concerned this could set a precedent and undermine the predictability of City Plan by
making everything "negotiable."
Councilmember Weitkunat stated it appeared that in 2001 at the time of the Johnson Farm Rezoning,
the NC center was already on the property and the NC was removed from the Structure Plan at that
time, based on the applicant's desire to do something else. Gloss stated that was correct and the
decision was made to shift it to the southeast corner.
Councilmember Weitkunat stated that was the clarification she needed. She asked if the NC was
originally on the west side of Timberline on this site. Byrne replied in the negative and stated it was
on the north side of Drake Road east of Timberline Road. At that time there were two large vacant
pieces of property, a neighborhood center was being established at the intersection, and Timberline
would become a six -lane arterial. It was true that Timberline was now being widened but when the
Structure Plan was adopted it was based on the plans for the wider road. The neighborhood retail
center was all placed on the east side of the road. The Sidehill and Rigden Farm developers
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May 16, 2006
negotiated the location of the retail center on Rigden Farm. The Structure Plan was amended to
reflect the rezonings that took place as properties came into the City.
Councilmember Manvel asked about changed conditions relating to the Police building, which was
not in the plan when the NC was established on the southeast comer. He asked if this building
created changed conditions for more demand for NC on the northwest corner. Gloss stated staff did
not do a detailed analysis of the exact traffic generation for the Police building versus LMN or MMN
on the balance of the property. There was a substantial residential component approved on the
northwest comer of Drake and Timberline Roads that was intended to support the Rigden Farm
neighborhood center. Replacing a portion ofthat residential with the Police Administration Building
did not "tip the scales" from the staff perspective. A relatively large group of residents would be
replaced by a relatively large group of residents and office workers. Both groups would need the NC
center and staff believed the existing NC center would satisfy that need. Byme stated a big office
building changed the character of an area and if the vacant area to the south had already been
developed with residential the City would have had to be more careful about the development of the
Police building. It was a permitted use in the zoning district but the big office building did change
the character of the neighborhood, traffic patterns, uses, etc., in positive and negative ways. The
Council needed to take these "changed conditions" into consideration in making a decision.
Councilmember Manvel stated there were changed conditions and the question was whether those
changes meant a need for additional NC on the corner. The issue was whether this big office
building was a "radical change" from high density residential. Gloss stated this was a fair
characterization of the issue.
Councilmember Kastein noted the criteria were consistency with the Comprehensive Plan and/or
changed conditions and asked for clarification regarding the first criterion. Gloss stated the criterion
relating to consistency with the Comprehensive Plan meant consistency with the City Plan policies.
The staff report indicated the policies that staff felt were relevant, and examples were the
concentration of Commercial in centers instead of stretched out along arterial streets and accessibility
to an NC zone.
Councilmember Kastein asked about the one -mile radius issue. Gloss stated there were sections in
the NC district portion of the Code about the service area for centers.
Councilmember Kastein stated the issue to him was the overlapping service areas. He stated the
intent ofthe Structure Map was to consider economics and enable "wildly successful" developments.
The issue of "competing businesses" in an area was important and in this case there were
overlapping service areas. The applicant's study showed there was "significant business" and asked
how the City should decide how much overlap between the commercial centers was allowable.
Gloss stated the Structure Plan talked about the number of neighborhoods served by a NC district
(typically 4 to 5). This was the first center processed under the City Plan "template" and staff felt
that there were sufficient services provided today and in the future by the existing Rigden Farm
center.
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May 16, 2006
Councilmember Manvel made a motion, seconded by Councilmember Weitkunat, to adopt
Resolution 2006-061.
Councilmember Weitkunat stated Rigden Farm was an "important prototype" that began the City
Plan process "in earnest." She supported City Plan and it was important to follow-through on it. She
stated she would not support the motion because she believed the rezoning would not be consistent
with what the City was trying to accomplish with City Plan. Rigden Farm needed to be given its
"just dues" and the concept be given a chance to work. She expressed a concern that the MMN
"rooftops" were needed to make it work.
Councilmember Kastein stated he agreed with Councilmember Weitkunat for the most part and he
understood the logic of the developer's request. City Plan tried to ensure economic success for
developments that were existing and planned. The Rigden Farm development was expensive and
there was a proposed development north of the Police building. The Structure Plan was set up to
spread out the neighborhood centers so they would be supported by their neighborhoods.
"Backtracking" on this would be cutting into the feasibility of those commercial centers. The
Council must work within the context of the adopted City Plan. He would oppose the motion.
Councilmember Roy stated the other part of equation was creation of a successful community
"center" for the residents of the area. The proposed amendment would work against both economic
success and creation of a gathering spot.
Councilmember Brown stated there had been discussion about the need to change City Plan when
appeals were brought before the Council and no changes had been made. He believed the Police
building changed the conditions by adding 400 more individuals to the area who would need
services. There were 118 homes platted to the west of this location. There was good access to the
site. Development on this site could also bring people to Rigden Farm to shop. He would support
the motion.
Councilmember Manvel stated he would not support the motion. People would be able to cross
Timberline Road, just as they had to cross College Avenue. He believed it was important to "hold
the retail together" instead of "spreading it around."
Councilmember Kastein stated the issue of changing City Plan was important but that rezoning
requests should not be used to change City Plan. There may need to be changes to City Plan and the
Land Use Code and staff had begun work on major revisions. The existing rules needed to be
followed and if the rules needed to be changed that should happen in other ways and not as part of
quasijudicial actions.
Councilmember Ohlson stated he believed the intent of City Plan was to create "people places that
did not look like the old College Avenue." Rigden Farm "played by the new rules" and the applicant
was offering something that was different than what was laid out in the City Plan vision. He asked
if his comment was accurate. Gloss replied in the affirmative.
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May 16, 2006
Councilmember Ohlson stated he did not want to approve a change that would violate the
"aesthetics" of the vision relating to urban design, people -friendly places, etc. He stated he would
likely vote against the motion.
Councilmember Weitkunat stated the rezoning and Structure Map amendment were allowed
processes. The Structure Map was a "best guess" that was never intended to be "set in stone." This
entire process was acceptable as a way to change things. She did not want to "negate" the process
in any way.
Councilmember Brown stated more than 900 people were invited to the applicant's neighborhood
meeting and only one person objected and later supported the application. It appeared the
community supported this application. Approval would give people other choices for restaurants.
He did not believe that the existing retail would handle the capacity when the area filled up.
Mayor Hutchinson stated staff had presented its professional recommendation and had provided the
rationale for the recommendation. He had been persuaded that it was important to have consistency.
He stated he would not support the motion.
The vote on the motion was as follows: Yeas: Councilmember Brown. Nays: Councilmembers
Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat.
THE MOTION FAILED.
Councilmember Manvel made a motion, seconded by Councilmember Weitkunat, to adopt
Ordinance No. 086, 2006 on First Reading. Yeas: Councilmember Brown. Nays: Councilmembers
Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat.
THE MOTION FAILED.
Ordinance No. 087, 2006,
Amending Chapter 3 of the City Code
to Allow Alcohol Beverage Tastings (Options A and B). Option A Adopted
The following is staff's memorandum on this item.
"FINANCIAL IMPACT
This Ordinance will set an application fee of $150 to defray the administrative costs of issuing and
tracking tasting permits. Revenue received will be placed in the City's General Fund.
EXECUTIVE SUMMARY
This Ordinance will amend the City Code to allow alcohol beverage tastings at retail liquor stores.
Staff is presenting two options for Council consideration. Option A will limit alcohol beverage
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May 16, 2006
tastings to beer and wine. Option B will allow tastings of spirituous liquors as well as beer and
wine. The number of tasting events for a retail liquor store license would be limited to 52 days per
year.
BACKGROUND
In 2004, the Colorado General Assembly adopted, and the Governorsigned into law, House Bill04-
1021 [now codified as C.R.S. §12-47-30](10)j permitting local jurisdictions to allow retail liquor
stores and liquor -licensed drugstores to conduct sample tastings of alcohol beverages (beer, wine
and liquor) in their establishments without charging for such samples. This bill also requires that,
if a local government desires to allow such tastings in its jurisdiction, the local governmental body
must do so by ordinance.
In response to requests from several Councilmembers, staffreviewed tastings ordinances from other
jurisdictions and weighed the advantages and disadvantages ofpermitting tastings in Fort Collins,
the cost to the City to do so, and safety and law enforcement concerns.
After discussion at theApri125, 2006 worksession, Council reviewed information regarding alcohol
beverage tastings and directed staff to present two optional versions of a tastings ordinance.
Option A - Limits Alcohol Beverage Tastings to Beer and Wine
This option will result in minimal additional staff and police services. It is estimated that 16+ staff
hours would be required annually for administration and enforcement. The administrative costs
(Deputy City Clerk, Assistant City Attorney and Municipal Judge) would be approximately $600,
depending on how many stores applyfor a permit. There are currently 29 retail liquor stores in Fort
Collins.
A fee would be imposed for the issuance of a tastings permit. Staff is recommending the fee for
processing an initial application be in the amount of $150 with a renewal fee of $50.
State law prohibits the Cityfrom taking law enforcement costs into consideration in determining
the amount of the application fee. Enforcement would be driven by complaint only. A proactive
approach to enforcement (random compliance checks) would increase administrative costs to $1200
(31+hours).
Larimer County has opted to limit retail liquor store licenses to beer and wine tastings only and, to
date, has issued two tastings permits in unincorporated Lorimer County - one in south Fort Collins
and one outside of Loveland. See spreadsheet (Attachment 2) for other jurisdictions' fees and
limitations.
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May 16, 2006
Option B - Allows Tastings of Spirituous Liquors as Well as Beer and Wine
This option will require staff and police resources of 16+ hours annually (approximate
administrative cost $600), depending on how many stores apply for a permit. State statute allows
a local jurisdiction to impose stricter requirements than the State requirements regarding the days
on which tastings can be held, the duration of a tastings and the number of tastings that can be held
each year per licensee.
During the April25th worksession, staffrecommended the following requirements and restrictions
to alcohol beverage tastings. These recommendations are included in both options.
• Tastings will be limited to 52 days per year per licensee (to minimize chance of violations).
• Tasting samples will be served in clear containers (to facilitate visual monitoring ofproduct
samples).
• The Authority could deny the application for a tastings permit ifthe applicant had a previous
liquor code violation in the preceding two years or if he or she could not demonstrate an
ability to conduct the tastings in accordance with the law and without creating a safety risk
to the neighborhood.
• The applicant will need to provide a schedule of the anticipated tastings and a log of
completed tastings upon renewal (to ensure that licensees do not exceed allowable days and
hours).
• Enforcement will be by complaint only (reactive) due to limited staffand financial resources.
Questions from Work Session
At the Council Work Session, staff was asked to respond to the following questions:
What do micro -breweries think of the tasting ordinance?
Comments from three local breweries ranged from neutral to supportive. Anheuser-Busch
will submit its comments at a later time, and those comments will be provided to Council
under separate cover as soon as they are received.
How is it that micro -breweries can offer tastings now?
The term "micro -breweries" is not defined by the State Liquor Code.
The State has given local jurisdictions the authority to grant, deny, and disciplinary actions
against retail liquor licenses (i.e., hotel -restaurant, tavern, retail liquor stores, brew pubs,
etc.). Brew pubs are allowed to host tastings since they are licensed for 'on premise'
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May 16, 2006
consumption, meaning patrons can consume alcohol inside the brew pub (i.e.,
CooperSmith's, C.B. & Potts, and Conor O'Neills). Retail liquor stores hold "off -premise"
licenses, which do not permit consumption within a store unless there is a tastings permit
in place.
According to the State Liquor Authority, beer manufacturers are allowed to have "sales
rooms ", allowingthem to conduct tastings, serve and sell food, sell general merchandise and
beverages to be taken off the premises by the consumer.
Why did Larimer County not include spirituous liquors?
According to Gael Cookman, Staff Services Manager, the Larimer County Board of
Commissioners opted to limit tasting permits to beer and wine for two reasons. First, it was
concerned with the high alcohol content of spirituous liquors as opposed to beer and wine,
and, second, none ofthe interested retail licensees requested spirituous liquors be included -
the licensees were interested in beer and wine only.
The Board of Commissioners stated it may consider adding spirituous liquors to its tastings
ordinance in the future.
What licensing fees does the State allow?
C.R.S. §12-47-505 (4)(a) states that each application for a license must be accompanied by
an application fee (with limits set by the State) in an amount determined by the local
licensing authority to cover actual and necessary expenses attendant to processing the
applications. Application fees are separate from license fees, which are also determined by
the State. These fees are paid to the City of Fort Collins.
lApplication Fees
New License
$500.00 maximum allowed by State
Transfer of Ownership
$400.00 (maximum allowed by State is
$500 - staff could not justify a transfer
application fee o $500
Renewal Fee
$50.00 maximum allowed by State
Under separate cover, the City Attorneys Office will be responding to additional questions
regarding cost recovery and fees and taxes. "
City Manager Atteberry stated there would be a staff presentation.
Aimee Jensen, Deputy City Clerk, presented background information relating to the agenda and
stated two options were being presented for consideration. The first option would allow only beer
and wine tastings in retail liquor stores, and the second option would allow beer, wine and spiritous
liquors tastings.
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May 16, 2006
Lori Brunswig, 1901 Ridgewood Road, opposed adoption of an alcohol tastings ordinance. She
stated allowing tastings would enable people to become "victims" of a "lucrative marketing tool."
She questioned how adoption of a tastings ordinance would improve Fort Collins.
Chuck Carlson, Old Town Wine and Spirits, stated this ordinance would enable a group of
businesses in Fort Collins to respond to competition from businesses outside of the City and keep
sales tax dollars in Fort Collins. He stated either of the two options would guarantee that tastings
could be done safely. Either option would represent a minimal increase in the availability and use
of alcohol. Experiences in other communities showed that a minority of stores would actually apply
for tastings permits. Tastings were heavily regulated in terms of frequency, duration and the amount
of alcohol that could be served to an individual.
John Lund, Fort Collins resident, spoke in support of a tastings ordinance.
Dennis Dinsmore, 2201 South College Avenue, Wilbur's Wines and Spirits, spoke in support of
Option B of the ordinance. He stated the ordinance would allow local merchants to gain a
competitive position. He suggested that the amount of spiritous liquor that could be served at a
tasting could be limited to half of the State's maximum to eliminate "store hopping" and reduce the
negative impacts of Option B.
Councilmember Weitkunat asked if Mr. Carlson or Mr. Dinsmore could provide clarification
regarding the sampling offerings to retail stores by distributors. Mr. Carlson stated under State law
distributors could not contribute in any fashion (training, personnel or products) to the tastings.
Councilmember Weitkunat asked for clarification regarding spiritous liquors.
Mr. Dinsmore stated most spiritous liquors tastings would probably be at Christmas time for certain
products such as liqueurs. He stated tastings would not make sense for inexpensive spiritous liquors
such as vodka.
Mayor Hutchinson questioned the value of tastings of spiritous liquors when products such as vodka
would typically be mixed with something else.
Mr. Dinsmore stated vodka was a tasteless, odorless alcoholic beverage and it would not make sense
to offer tastings. He stated people might be interested in tasting and comparing specific products
such as Scotch.
Councilmember Roy stated he favored Option A and asked if the licensees who spoke would still
be interested in tastings if Option A was adopted instead of Option B.
Mr. Dinsmore stated he would be interested in tastings if Option A was adopted. He stated the
biggest "educational issue" was wine, followed by beer. He noted his store carried 12,000 different
kinds of wines. Tastings of spiritous liquors would be more important at Christmas time for
products such as aperitifs and liqueurs.
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May 16, 2006
Councilmember Weitkunat made amotion, seconded by CouncilmemberBrown, to adopt Ordinance
No. 087, 2006 (Option B) on First Reading.
Councilmember Weitkunat asked if Option B allowed serving a half ounce. Teresa Ablao, Assistant
City Attorney, stated the State law limitation was not to exceed a half ounce.
Councilmember Weitkunat stated one of the licensees suggested a maximum of a quarter of an
ounce. She would like to amend the ordinance to establish a limit of one -quarter ounce. City
Attorney Roy stated there were three areas in which the State law permitted the Council to be more
restrictive and this was not one of the three areas. He recommended that such an amendment not be
considered. Ablao stated licensees would not be prohibited from limiting the amount to one -quarter
ounce.
Councilmember Weitkunat asked staff to address the limitations and regulations that would go along
with a tasting to assure the publicthere would be City oversight. Jensen stated tastings would be
limited to 52 days a year, each person could have no more than four individual samples, tastings
would not exceed more than five hours in a day, days of tastings could not be consecutive, and the
hours for tastings would be from 11 a.m. to 7 p.m. If a licensee violated the Liquor Code the
licensee would lose the tastings permit for two years.
Councilmember Kastein asked how many ounces were in a "shot." Mr. Dinsmore stated it was one
ounce.
Councilmember Kastein asked for clarification that someone could have four one-half ounce samples
of spiritous liquors i.e., two shots. Ablao replied in the affirmative.
Councilmember Kastein stated this was a reason not to support tastings for spiritous liquors. He
asked how much a serving of wine would be. Jensen stated it would be 3 1/2 ounces.
Mr. Carlson stated a four -ounce serving of wine was approximately alcohol content as 12 ounces of
beer. He stated typical bars and restaurants would serve between four and seven ounces of wine per
glass.
Councilmember Roy stated he would prefer an ordinance for beer and wine tastings but not spiritous
liquors tastings. One of the purposes of a tastings ordinance was to give Fort Collins businesses a
"level playing field" with County businesses, and Larimer County did not include spiritous liquors.
Councilmember Manvel stated since the City could not be more restrictive on the maximum amount
for spiritous liquors he would prefer to limit the tastings ordinance to beer and wine. He offered a
friendly amendment to the motion to adopt Option A instead of Option B.
Councilmember Weitkunat asked if there was a way to limit spiritous liquors to liqueurs or aperitifs.
Jensen stated there was no distinction made between types of spiritous liquors.
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May 16, 2006
Mayor Hutchinson asked for clarification that this was one area in which the City could not be more
restrictive than the State law. City Attorney Roy stated the courts had held the State regulates the
distribution of liquor and the City was preempted from conflicting with the State law except where
the State expressly allowed the City to do that. He stated the three areas in which the City could be
more strict were the areas on which the Council should focus. He recommended that to Council stay
with the ordinance as drafted since it was patterned after the State law.
Councilmembers Weitkunat and Brown accepted the friendly amendment offered by Councilmember
Manvel.
Councilmember Ohlson noted the Council could take a position different than what was
recommended by the City Attorney. He spoke in opposition to adoption of the ordinance because
of the "huge problems caused by alcohol in this culture." Allowing alcohol to be legal was not the
same as allowing its "promotion." Adoption of this ordinance would send "mixed messages" about
drinking and driving. He spoke about the serving of beer at the Budweiser Center where family
events were held. He noted for the record that Budweiser "did not pay one penny" for the Budweiser
Center or for the $33,000 sign. The City had task forces on alcoholism, then did these kinds of
things. He stated he would not support the motion.
Councilmember Manvel stated alcohol caused many problems for society. He stated he would
oppose this ordinance if it would increase alcohol consumption and he did not think that would be
the result. He hoped that it would lead to "more discriminating alcohol consumption" ifpeople were
drinking costlier wines. He hoped this would keep some tax dollars in Fort Collins and it would be
an "amenity" for people looking for something good to drink.
Councilmember Brown stated he saw this as a way to "educate the public' before they spend dollars
on wine they would not like. He stated he would support the motion.
Councilmember Roy stated he would support the motion. He stated alcohol could be "destructive"
but many people were simply interested in "enjoying life and being educated about different places,
different tastes." Tastings might show people there was another side to alcohol consumption than
getting a "buzz."
Councilmember Kastein stated problems were not with the alcohol but with the "abuse" of alcohol.
He would oppose the ordinance if he felt that tastings would not be safe. Tastings should be safe
because of the way the ordinance was drafted and how it must be applied. The purpose was so that
people could "enjoy the nice things that come with alcohol." This was one area in which a bit more
freedom could be given to help businesses and to help people enjoy their "liberties."
Mayor Hutchinson stated he had been concerned about possible abuses and he was assured at the
Study Session that there would be adequate controls to prevent abuse. He stated he would support
the motion.
May 16, 2006
The vote on the motion to adopt Option A was as follows: Yeas: Councilmembers Brown,
Hutchinson, Kastein, Manvel, Roy and Weidamat. Nays: Councilmember Ohlson.
THE MOTION CARRIED.
Items Relating to the Amendment of
the Appeals Process Contained in Chapter 2,
Article II Division 3 of the City Code, Adopted as Amended
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 088, 2006, Making Various Amendments to Chapter 2,
Article II Division 3 of the City Code Pertaining to the Appeals Process.
B. First Reading of Ordinance No. 089, 2006, Amending Chapter 2, Article A Division 3 of the
City Code with Regard to the Grounds upon which Appeals to the City Council are Decided.
C. First Reading of Ordinance No. 090, 2006, Amending Chapter 2, Article II, Division 3 ofthe
City Code Pertaining to the Filing of Appeals by Members of the City Council.
Ordinance No. 088, 2006, makes various amendments to the appeals process that are perceived to
be non -controversial.
Ordinance No. 089, 2006, (Options 1 and 2) pertains to the basis for Council's decision on appeal.
Option #1 would retain the existing provision that limits the grounds to those stated in the notice of
appeal and eliminates the opportunityfor Councilmembers to add additional issues prior to the
appeal. Option #2 would allow the Council to address issues relevant to the appeal even if they
were not raised by the appellant in the notice of appeal.
Ordinance No. 090, 2006, (Options], 2 and 3) pertains to appeals filed by Councilmembers. Option
#1 would eliminate the ability of Councilmembers to file an appeal. Option #2 would retain
Councilmembers' ability to file an appeal and states that the fact that a Councilmember has filed an
appeal does not, in itself, prevent the Councilmember from participating in hearing the appeal.
Option #3 again retains Councilmembers' ability to file an appeal but states that a Councilmember
who does so should not participate in hearing the appeal.
One other possible change discussed at the work session on April 11, 2006, that is not included in
these ordinances is a proposed amendment that would eliminate the ability of members of the
general public to file an appeal or participate in the hearing of an appeal. The City Attorney is
recommending consideration of that proposed amendment be postponed pending the outcome of a
civil action in the local District Court in which the Court is expected to address the question of
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May 16, 2006
whether members of thegeneral public have standing to contest City Council's site -specific land use
decisions in court.
BACKGROUND
At the work session on April 11, 2006, Council considered several proposed amendments to the
process contained in Chapter 2, Article II, Division 3 of the City Code pertaining to appeals to the
Council. At the conclusion of the discussion, Council directed staff to prepare several ordinances
that would allow Council to first adopt those changes that were perceived as noncontroversial and
fairly routine in nature, and then consider options relating to certain other changes. Toward that
end, staff has prepared three ordinances for Council's consideration.
OrdinanceNo. 088, 2006, Making Various Amendm ents to Chapter 2, ArticlellDivision 3 ofthe
Code of the City of Fort Collins Pertaining to the Appeals Process.
This ordinance would:
• add a definition of evidence;
• limit the submission of written materials prior to the appeal hearing to those
materials that are relevant to allegations that the decision maker considered
evidence relevant to its findings which was substantially false orgrossly misleading;
• discourage ex parte contacts on the part of Councilmembers prior to hearing an
appeal;
• state that, if Council remands the matter for rehearing, such remand shall include
direction as to the scope of the rehearing.
Ordinance No. 089, 2006, Amending Chapter 2, Article 11, Division 3 of the Code of the City of
Fort Collins with Regard to the Grounds upon which Appeals to the City Council are Decided
This ordinance presents two options relating to the scope of the appeal hearing. At present, the
Code states Council's decision on appeal will be based upon the record on appeal, the relevant
provisions of the Code and Charter, the grounds for appeal cited in the notice of appeal and any
additional issues identified by a member of the City Council at least seven calendar days prior to
the date of the hearing. Staff believes this provision unduly limits the scope of the appeal and
prevents Council from addressing issues relevant to the appeal that might not have been raised by
the appellant. Two options are presented for Council's consideration. Both would eliminate the
need for Council members to identify additional issues prior to the appeal hearing.
Option #1 would continue to limit the scope of Council's review to the grounds stated in the notice
of appeal.
Option #2 would allow the Council to raise additional issues at the appeal hearing even if those
issues have not been raised by the appellant in the notice of appeal. Staff recommends adoption of
Option #2.
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May 16, 2006
Ordinance No. 090, 2006, Amending Chapter 2, Article II, Division 3 of the Code of the City of
Fort Collins Pertaining to the Filing of Appeals by Members of the City Council.
This ordinance deals with appeals filed by Councilmembers.
Option #1 would eliminate the ability of Councilmembers to file appeals. Option #2 would continue
to allow for the filing of appeals by Councilmembers and would allow Councilmembers who file a
notice ofappeal to still participate in the appeal hearing unless other circumstances exist which call
into question the impartiality of the Councilmembers. Option #3 would continue to allow
Councilmembers to file appeals and would require Councilmembers who do so to refrain from
participating in the appeal hearing.
One other change that had been recommended by staff prior to the work session was to eliminate
the ability ofinembers of the general public to file an appeal or to participate in an appeal hearing.
Staffbased this recommendation on their opinion that the appeal process should be reserved to those
parties -in -interest who are more directly affected by the decision in question than members of the
generalpublic. Staffis recommending Councilpostpone consideration ofthisproposed amendment
pending the outcome of a lawsuit in the Larimer County District Court where the Court is
considering the City's motion to dismiss based upon the plaintiffs lack of standing. Staff believes
the Court's ruling may alleviate the need to consider this Code change if it appears from the ruling
that granting a member of the public the right to file an appeal to Council and participate in the
appeal hearing does not necessarily give that person standing to challenge the Council's decision
in Court.
At the work session, Council also directed the City Attorney to consult with other Front Range
municipalities regarding their appeals process in order to see how those municipalities deal with
some of the issues addressed at the Work Session. Four municipalities responded to staffs inquiry.
The appeal procedures in those municipalities vary widely as to whether appeal hearings are based
on the record or are "de novo" (entirely new hearings); whether the record on appeal can be
supplemented by additional evidence at the appeal hearing; whether participation is open to any
member of the public or limited to the applicant and abuttingproperty owners; and whether Council
members can appeal (or is "call up for review') decisions of boards and commissions. "
City Attorney Roy stated the first ordinance would add a definition of "evidence" to the provisions
of the Code pertaining to the appeals, limit written materials filed with the City Clerk prior to an
appeal hearing to those that were relevant to an allegation of false or misleading evidence,
discourage ex parte contacts, and require remands to be accompanied by direction as to the scope
of the rehearing. The second ordinance would pertain to the scope of review by the Council on an
appeal. In Option 1, the review would be limited to the grounds stated in the notice of appeal. In
Option 2, the Council would be free to consider any issues relevant to the applicable criteria whether
or not those issues were raised in the notice of appeal. Both options would eliminate the existing
provision that required Councilmembers to identify additional issues they believed should be
considered prior to the appeal hearing. The third ordinance dealt with appeals filed by
Councilmembers. Option 1 would eliminate the provision that allowed Councilmembers to file
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May 16, 2006
appeals and Options 2 and 3 would leave that provision in place. Option 2 would state
Councilmembers who filed an appeal may participate in the appeal hearing unless there were other
considerations that indicated some bias on their part. Under Option 3, Councilmembers who filed
an appeal would not be able to participate in the appeal hearing.
John Lund, Fort Collins resident, stated anything that would make the Land Use Code easier to read,
understand and adjudicate was good.
Nate Donovan, 2400 Hampshire Square, supported the staff recommendation of Option 2 for
Ordinance No. 089, 2006 and stated the grounds for appeal cited in the notice of appeal should not
be deleted from the Code. He suggested that Council make an amendment to restore that language
in Option 2. He supported Option 3 for Ordinance No. 090, 2006 and stated he would like to see
members of the general public be able to file an appeal or participate in the hearing of appeal. He
stated Ordinance No. 088, 2006 was "controversial" and supported the addition of the new Section
2-55 regarding no ex parte contacts with Councilmembers. He stated a technical change was needed
to Section 4 to indicate that the existing Section 2-56(d) [and not just Section 2-56(d)(2)] was
amended and added as a new Section 2-59 of the City Code. He urged caution when adding the
definition of "evidence" to Section 2-46 of the Code. He questioned who would decide whether
something submitted by the applicant, City staff or a member of the public was "legally probative
information that is not `argument' as to how information offered as evidence should be viewed by
the Council." He was concerned about the standing of applicants, staff or a member of the general
public to participate in the public process of development applications. Attached to the statement
submitted to the City Council was a written statement that he read into the record at the September
8, 2005 public hearing on the City's development application for Spring Canyon Community Park.
He participated in that hearing because he was concerned the City's organizational goal to get that
park built led some senior staff to make material misstatements of fact to the Council regarding
requirements for compliance with the City Code. When he brought the question of compliance with
the Code to the attention of the Hearing Officer, the response of the lead staff person was to not
answer the question. The Hearing Officer's written decision simply stated the proposed application
met the City Code. If he had been able as a community member to appeal this decision to the City
Council he was not certain that his written statement would be considered to be "evidence" under
the proposed definition. The larger question was whether a property owner or a customer of the
proposed business or public park or a community resident who participated in the market could bring
his or her concerns to the public process of development review. The question was whether that
person could access the public file, participate in the public hearing, participate in the public
Planning and Zoning Board meeting, and bring his or her concerns (within limits) to the City
Council. He expressed concerns that the elected officials would have a "judicial" rather than "quasi-
judicial" role. Council should be able to consider (within limits) the values of taxpayers.
Mayor Hutchinson stated the ordinances would be discussed together and voted on separately.
Councilmember Kastein asked if staff was suggesting Option 2 on Ordinance No. 089, 2006. City
Attorney Roy replied in the affirmative.
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May 16, 2006
Councilmember Kastein asked for staff s rationale. City Attorney Roy stated in some past appeals
there had been some "awkwardness" and time spent addressing appeals in accordance with the
statement in the Code that said "an appeal will be decided based upon the notice of appeal, the
record, etc." The question was whether this meant consideration based only on the grounds stated
in the notice of appeal. Council was ultimately responsible for the way in which its laws were
interpreted, implemented and applied. Staff believed Council should not be unnecessarily
constrained from being able to determine that an issue was germane to the appeal. Staff believed
this issue needed to be addressed and clarified. The existing language seemed to be "unnecessarily
constraining."
Councilmember Kastein asked if any item that came before the Council would be "wide open" for
discussion. City Attorney Roy replied in the affirmative and stated the downside was that the Board,
the applicant and the parties objecting may not have a problem with an issue that the Council wanted
to discuss. There was a possibility Council would overturn a decision for a reason that was not a
concern to anyone else. He noted that both versions were in use in other cities.
Councilmember Kastein asked if the Council would "start over" on the appeal item with the
applicant's presentation, appellant's presentation and community input. City Attorney Roy stated
the hearing on the appeal would not be any different in terms of presentations. If new issues were
raised at the hearing not previously identified in the notice of appeal, the parties -in -interest should
be given an opportunity to address those issues.
Councilmember Kastein stated he could envision that on every appeal some Councilmembers might
be thinking about elements beyond the grounds stated in the notice of appeal and the rest of the
Council could be "ill prepared" to discuss and decide on those new issues. City Attorney Roy stated
that was a legitimate concern. The question was whether this was a larger concern than being
constrained by the grounds stated in the notice of appeal even if another issue was seen as important.
Greg Byme, CPES Director, stated it would also be possible the staff or applicant could also be
caught off guard and appear to be unprepared. Staff felt it was worth that risk because the staff and
applicant would typically be thoroughly familiar with every aspect of the application by the time it
comes to Council on appeal. This would "broaden the substance" and give an opportunity for
unexpected lines of questioning and argument.
Councilmember Manvel stated the two sides had been clearly expressed. On one hand he wanted
the Council to "reach the best possible decision" and in some cases the Council was "not allowed"
to make the "best decision" because of the constraints of the existing rules. In one case, the Council
"stretched the rules" to remand a matter for discussion of something that was not part of the appeal.
On the other hand, he was concerned an issue could "pop up" that nobody was prepared to discuss.
He was inclined to think the ability to raise all issues and make the "best decision" took priority.
City Attorney Roy stated the Council had a `hull alternative" to leave the ordinance as is. The
current ordinance had language that would "strike an appropriate balance if it were more widely
used." The current provision required Councilmembers to identify the additional issues up -front so
that the parties and the other Councilmembers were prepared to deal with them at the hearing. The
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May 16, 2006
problem has been that this had not been done because the Council did not receive the information
early enough to understand what those additional issues might be.
Councilmember Weidmat stated her understanding was that many municipalities used the appeals
process for a new hearing. She did not believe adding relevant issues was the same thing as starting
from "ground zero." Option 1 related to sticking to what was set forth in the notice of appeal. There
was difficulty in differentiating between what the appellants were appealing (what was written) and
what was off limits. This was where Option 2 came in. Option 2 would not open up the whole
matter. The identification of additional issues was relevant in an appeal when the appellant had
overlooked such issues. Option 2 would give an opportunity for Councilmembers to identify
relevant issues that had been overlooked by an appellant. She did not see this as "starting over" but
as an improvement to the process.
Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to adopt
Ordinance No. 088, 2006 on First Reading.
Councilmember Weitkunat stated she viewed this as a "clean-up" ordinance. It was important to add
the definition of "evidence" and to include ex parte contacts. She liked the change to add direction
from Council for remands. She would support the motion.
Councilmember Roy stated he would support this ordinance because it clarified Council's
responsibility to avoid ex parte contacts.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Councilmember Kastein made a motion, seconded by Councilmember Brown, to adopt Ordinance
No. 089, 2006 (Option 1) on First Reading.
Councilmember Roy stated there was a recent issue that was remanded and he believed this was a
"good choice." He believed Council should remain open to discovering relevant issues through a
review of the tapes, transcripts, etc. Council was in the best position to "assimilate" information
provided by the community. He believed it was likely Council could continue to determine that
issues had not been looked at as they needed to be looked at. Council should continue to have this
option and this had not been abused in the past.
Councilmember Ohlson questioned why the Council would want to give up its ability to come up
with the "best possible conclusion" and questioned limiting the discussion or the Council's decision -
making ability.
Councilmember Kastein stated he felt strongly about this issue. He "feared" having many
"&castrating, long, duplicate" hearings in which the Council could question any issues not necessarily
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May 16, 2006
relevant to the appeal. There had been cases where the Council had "strayed" from what was being
appealed and he believed the focus should be the notice of appeal. He felt strongly Council should
not have that larger "purview" and the Council should address the matters in the appeal. The
Planning and Zoning Board had a role dealing with "everything" and Council should have a focused
role in the appeal. If the efforts were duplicated, the process would be further complicated. He felt
strongly about keeping the Council to the issues stated in the notice of appeal.
Councilmember Brown stated he agreed with Councilmember Kastein. There was a need to
"believe" in the staffs and Board's decisions. He believed Council should be debating a "fixed
subject" at the appeal hearing. He would support the motion.
Councilmember Manvel stated the Council had focused pretty well on the notice of appeal. He did
not want to "handcuff' the Council in what could be considered. He believed Council might decide
some appeals differently if they felt less "fettered." He did not believe Council would want to
"rehear everything." He would like to see this option defeated and the other option considered.
Councilmember Weitkunat stated it was necessary to understand the purpose of an appeal. She
stated the appellant was saying there was a specific problem, error or perceived "injustice" in the
process and this was what the Council should address in the appeal. Council should not "presume"
there were issues the appellant did not think about because this could "dilute the process." Focusing
on the notice of appeal kept the discussion focused on what the appellant thought was important.
Councilmember Roy stated a "complicated process that gives a better outcome" would be a
"complicated process worth having." Council should be open to making the best possible decisions.
Remanding did not "upset" anything.
Councilmember Weitkunat stated the notice of appeal sets forth the appellant's reasons for
appealing. The Council should `respect" that.
Councilmember Roy stated Council's role was to listen and "sort out" what should be dealt with on
an appeal. It was important to allow an opportunity for the Council to "discover" something that
would help in making a better decision.
Councilmember Manvel stated he wanted to be able to examine the "propriety of the decision based
on the evidence." He would like the Council to be able to make the best decision possible. It would
be possible to make a decision based on the grounds set forth in the appeal (such as an allegation that
there was not a fair hearing) and based on a finding that the right decision was not made. The
hearing might have been fair but that the evidence may not have been "convincing." Council should
be able to reach a different decision than the Planning and Zoning reached.
Councilmember Weitkunat stated would "defeat the whole purpose" of the Planning and Zoning
Board.
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May 16, 2006
Councilmember Manvel stated he did not want to "rehear" everything done by the Planning and
Zoning Board but that, if a majority of Councilmembers had a different opinion than the Board, it
should be possible to reverse the Board's decision.
Councilmember Weitkunat requested clarification ofCouncilmemberManvel's position. It appeared
he wanted to be able to overturn a Board decision based on the decision that was made by the Board
rather than what was set out in the notice of appeal. This would be a different process than
addressing an appeal. City Attorney Roy stated if this change (Option 2) was made it would be
permissible to do this.
Councilmember Weitkunat questioned this change. City AttomeyRoy stated this would be different
than the current process.
Councilmember Kastein requested clarification regarding Option 2. City Attorney Roy stated Option
2 would provide for the Council to have the latitude to identify additional issues that the appellant
did not identify in the notice of appeal. Council would therefore have the ability to overturn the
Board's decision based on reasons or issues other than those set forth in the notice of appeal. If
additional issues were raised at the hearing the parties -in -interest should be allowed to speak to
those. It would change and "expand" the ability of Council to make such determinations.
Councilmember W eitkunat asked ifthis meant that if the notice of appeal alleged there was not a fair
hearing Council would be able to findthere was a fair hearing but the Board was wrong on some
point. City Attorney Roy replied in the affirmative.
Councilmember Weitkunat stated she would not support that change
Mayor Hutchinson stated he had a strong opinion on this ordinance. Council should be a "policy
body" and that enabling the Council to "redo the hearing" (as allowed by Option 2) would bring the
purpose of the Planning and Zoning Board into question. Option 1 would allow the Council to look
at problems with the procedure. Allowing new evidence to be brought into the hearing to enable the
Council to "make a better decision" was "chilling." Council's role should be that of a "safety valve"
and the Council should not "retry' the issues addressed by the Board. He favored Council having
a specific list of issues to consider on appeals and that he did not favor Council rehearing planning
and zoning issues in detail to "make a better decision" than the Board would make. He would
support Option 1.
Councilmember Ohlson stated if Option 2 was approved it was not his intention to rehear such
matters. He would like Council to be able to make a "brilliant" decision based on the consideration
of additional issues. He would support Option 1 because a number of Councilmembers had
expressed strong opinions and because he did not have a strong opinion on Option 2.
Councilmember Roy asked what would constitute a "fair hearing." City Attorney Roy stated the
Code defined a "fair hearing" and that this definition comported with the fundamental principles of
due process. These principles were a fair opportunity to be heard, whether grossly misleading
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evidence was improperly considered, whether there was relevant evidence offered that was denied,
and whether the Board had gone beyond its jurisdiction in hearing the matter.
Councilmember Manvel stated he did not believe that the adoption of Option 2 would result in
Council rehearing everything considered by the Board. He was confident of the "ability of Council
to stick to relevant and pertinent points." He stated he believed that the Council would not bring up
irrelevant issues.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Ohlson and Weitkunat. Nays: Councilmembers Manvel and Roy.
THE MOTION CARRIED.
Councilmember Ohlson made a motion, seconded by Councilmember Roy, to adopt Ordinance No.
090, 2006 (Option 2) on First Reading.
Councilmember Ohlson stated he favored Option 2 because Councilmembers were the "highest
elected officials" and should not be removed from the decision -making process as far as the ability
to file an appeal or participate in the appeal. Councilmembers should not have "less rights" to
participate than citizens affected by the appeal. The filing of an appeal did not mean that the
Councilmember had already made a decision but did mean the Councilmember felt that there was
enough of a question about the matter that the Council should be the "ultimate decision -maker."
Mayor Hutchinson asked for clarification regarding Councilmember Ohlson's statement that Council
would have "less rights" than a citizen.
Councilmember Ohlson stated he was referring to the fact that Option I would mean that a
Councilmember would not have the ability to file an appeal.
Councilmember Kastein stated he originally preferred Option 1. He was concerned with a statement
made by a Councilmember that the Councilmember would "appeal every development proposal if
...." He did not want that to be an option for a Councilmember. He asked whether a limitation
(i.e., one appeal per calendar year) could be added to guard against such a "hypothetical" eventuality.
Councilmember Ohlson stated he made the statement about appealing every proposal referenced by
Councilmember Kastein in connection with "packing the Board with one particular political
viewpoint" because he questioned whether the Board could make the best decisions in that situation.
He noted he had not filed any such appeals in his time on City Council.
Councilmember Kastein stated he was concerned with any option that would allow any
Councilmember to file an unlimited number of appeals. City Attorney Roy stated the Council could
set a limit but that any such limit would be "arbitrary." This could interfere with the purpose for
which the provision was included since there could be more than one situation that legitimately
May 16, 2006
warranted consideration by the Council in a period of time. He suggested that Council could allow
Councilmember appeals and then reconsider if there was "abuse."
Councilmember Manvel stated he did not believe that other Councilmembers would accept having
any Councilmember file multiple appeals "without reason."
Councilmember Kastein noted the Code provided that Councilmembers did not have to provide
specific reasons for an appeal. City Attorney Roy that stated was correct and the reason was to avoid
the appearance that the Councilmember had already made a decision or taken a position on the
matter.
Councilmember Manvel stated there had been "rare instances" of appeals by Councilmembers and
there should be an opportunity for an appeal if something was "egregious." He did not believe this
would happen very frequently.
Councilmember Weitkunat asked about the language in Option 2 that specified "... unless other
circumstances exist which call into question the impartiality ...." She asked if that had been
defined and how such a determination would be made. City Attorney Roy stated such a
determination would need to be made on a case -by -case basis. The case law established a strong
presumption of integrity and regularity on the part of the decision -makers and that the courts were
disinclined to overturn a decision based upon the partiality of one ofthe decision -makers unless there
was some strong indication that the decision -maker could not be fair. Many different circumstances
might evidence a bias. It was important to not just unequivocally state that any Councilmember who
files an appeal could participate because there could be circumstances besides the filing of the appeal
that could indicate a strong bias that would mean that the Councilmember should not participate.
Councilmember Weitkunat asked if this would mean a case -by -case determination rather than a
"blanket" prohibition against participation. City Attorney Roy stated circumstances that might be
considered in making this determination were whether the notice of the appeal indicated a "strong
bias," if the Councilmember had "engaged in ex parte conversations" indicating that his or her "mind
was made up going into the appeal," if the Councilmember had made public statements about the
matter, or if the Councilmember had a "close relationship" with one of the parties. He stated
examples could be included in the ordinance.
Councilmember Weitkunat asked if there would ever be an opportunity for a Councilmember who
filed an appeal to be an "appellant' during the hearing. City Attorney Roy stated a Code provision
prohibited a Councilmember from speaking to the Council as a citizen at the podium. He stated that
choice was whether the Councilmember would be "in or out as a decision -maker."
Councilmember Weitkunat asked if the Councilmember could be a decision -maker regarding his or
her own appeal. City Attorney Roy stated Option 2 would provide that the filing of an appeal would
not disqualify a Councilmember from participating and hearing the appeal.
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Councilmember Weitkunat asked who would present the appeal in that case if the Councilmember
was sitting in judgment. City Attorney Roy stated the Councilmember filing the appeal would be
given an opportunity to explain why the appeal should be heard. The Councilmember would be
filing the appeal in his or her capacity as a Councilmember rather than as a private citizen.
Councilmember Brown asked if adoption of Option 2 would negate the ordinance that was just
passed. City Attorney Roy replied in the negative. The first ordinance limited the determination to
the notice of appeal in situations in which a Councilmember was not an appellant. There would be
an opportunity for the Councilmember to be an appellant to bring his or her issues to the rest of the
Council. He believed the two ordinances could work together.
Councilmember Brown asked if, after a citizen appeal was filed based on one set of facts, whether
a Councilmember could say that the appeal should be made on a different set of facts. CityAttorney
Roy replied in the negative and stated the Councilmember could file his or her own appeal within
14 days after the Planning and Zoning Board hearing.
Councilmember Brown stated he believed this would negate the previous ordinance because a
Councilmember could "dig up another reason" for appealing the matter. City Attorney Roy stated
the Councilmember would not be required to state a reason for his or her appeal.
Councilmember Kastein agreed with CouncilmemberBrown and stated the Council would be limited
to discussing what the Councilmember raised on appeal. City Attorney Roy stated Councilmembers
were not required to state the grounds for appeal in the current version of the ordinance. The
ordinance could be changed to provide that the Councilmember filing the appeal must state the
grounds for the appeal. Council would not be limited to the grounds for a Councilmember-initiated
appeal and the hearings on such appeals would be "wide open."
Councilmember Ohlson stated requiring the Councilmember to state the grounds could bring into
question the objectivity and impartiality of the Councilmember filing the appeal.
Councilmember Kastein stated a lack of stated grounds only addressed the "perception of
impartiality." City Attorney Roy stated requiring a statement of grounds by the Councilmember
would create a "strong appearance of bias." Allowing a Councilmember to file without any grounds
provided an opportunity for the Councilmember to show that there was no bias.
Mayor Hutchinson stated Option 3 would address all of those issues. Councilmembers should be
able to file appeals and Councilmember filing the appeal should not participate in the hearing so that
the process could be kept "pure and ethical." Prohibiting the Councilmember who filed the appeal
from participating in the hearing would reduce the possibility that the appeal process could be abused
for a "political agenda." Allowing an appeal by a Councilmember and requiring that Councilmember
to "step back" would keep the process at a "high level."
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Councilmember Roy asked if a Councilmember filed an appeal and was not allowed to participate
in the deliberations, how a 3-3 tie vote would be resolved. City Attorney Roy stated a 3-3 vote
would mean the original decision would stand.
Councilmember Weitkunat asked if the Councilmember would be allowed to state the reasons for
the appeal. City Attorney Roy stated additional changes would need to be made to the ordinance to
allow that.
Councilmember Ohlson questioned why anyone would make an assumption on how the
Councilmember filing the appeal would vote.
Mayor Hutchinson stated he would like Councilmember-initiated appeals to focus on a higher level
than someone's political agenda.
Councilmember Ohlson stated for the record he was not part of the one Council -initiated appeal that
had been filed. He did not believe the appeal was "political" and it was a "proper appeal."
Councilmember Roy stated he was one of the two Councilmembers who filed that appeal and he
took exception to the statement that the appeal was "political abuse."
Councilmember Weitkunat stated this ordinance was on the table because of a remark made by a
Councilmember regarding an intent to appeal all planning and zoning decisions. That remark
"opened the door" to the possibility that a Councilmember could "stifle the system" by appealing
every decision made by the Board. This had not happened but there was a possibility that it could
happen. There needed to be some kind of "check and balance" so that kind of abuse could not
happen.
Councilmember Ohlson stated a Councilmember who would try to "gum up the works" and slow
down the process would have "no credibility" with the Council.
Councilmember Manvel asked for clarification regarding the language that provided that a
Councilmember who filed the appeal could "refrain from participating in the appeal hearing." He
asked if the Councilmember would not be allowed to speak as a member of the community or
whether this meant that the Councilmember would not be allowed to vote. City Attorney Roy stated
there was a Code provision that provided as follows: "No Councilmember shall represent any person
or interest before the Council or any board or commission." He viewed this as meaning the
Councilmember could not try to influence the vote and must recuse himself or herself as on a conflict
of interest.
Councilmember Manvel asked if this meant the Councilmember could not explain why the appeal
was being filed. City Attorney Roy stated the Council could decide to make an amendment on
Second Reading to allow the Councilmember filing the appeal to speak to an appeal. He
recommended that if the Councilmember filing the appeal was to be allowed to participate and
debate in the same manner as other Councilmembers then he or she should be allowed to vote. If
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the Councilmember was not to be allowed to participate and vote then he or she should be allowed
to present the appeal from the podium under the same rules as a citizen.
The vote on the motion for Option 2 was as follows: Yeas: Councilmembers Manvel, Ohlson and
Roy. Nays: Councilmembers Brown, Hutchinson, Kastein and Weitkunat.
THE MOTION FAILED.
Councilmember Kastein made a motion, seconded by Councilmember Brown, to adopt Ordinance
No. 090, 2006 (Option 3) on First Reading.
Councilmember Kastein stated there needed to be a means for Councilmembers to file appeals. He
stated it also made sense to rule the Councilmember filing the appeal out of the decision -making
process.
Councilmember Manvel stated this would provide a "safety outlet" for a Councilmember to file an
appeal. He asked if the Councilmember would be allowed to make a written statement of the
grounds for the appeal under Option 3.
Councilmember Brown asked if the Councilmember filing the appeal would be allowed to speak
from the podium but not as a seated Councilmember under this option. City Attorney Roy stated the
Councilmember could file a notice of appeal with an explanation about the grounds for appeal. He
stated language would be included on Second Reading pursuant to Council direction to provide that
the appeal would contain the grounds. Councilmembers would not be allowed to speak from the
podium unless Council directed that language be prepared to amend the current Code provision to
allow that.
Councilmember Weitkunat stated she believed that the Councilmember should be allowed to speak
from the podium. City Attorney Roy stated if this was Council's intent, a friendly amendment
should be offered to direct that language be prepared for consideration to amend the other Code
provision at the time of Second Reading of this ordinance. This change could possibly be
incorporated into this ordinance.
Councilmember Weitkunat made a motion, seconded by Councilmember Brown, to amend Option
3 to allow Councilmembers filing appeals to participate as a party -in -interest from the podium in
such appeals.
Councilmember Ohlson stated the Council may need to revisit the issue of Councilmembers
participating as liaisons to boards and commissions. City Attorney Roy stated the Code provision
prohibited a Councilmember from "representing any person or interest before a board or
commission."
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Councilmember Brown asked what would happen if two Councilmembers filed an appeal i.e.,
whether both would be able to speak and neither would be allowed to vote. City Attorney Roy stated
they would be allowed to speak as citizens from the podium.
Mayor Hutchinson asked if the motion to amend would be accepted as a friendly amendment.
Councilmembers Kastein and Brown stated they would accept it as a friendly amendment.
Councilmember Roy stated he was interested in seeing the differences in Council opinions on this
issue. He would not support the motion because he believed this action would "not allow the best
processes to go forward."
The vote on the motion to adopt Option 3 as amended to allow Councilmembers to participate as a
party -in -interest from the podium was as follows: Yeas: Councilmembers Brown, Hutchinson,
Kastein, Manvel and Weitkunat. Nays: Councilmembers Ohlson and Roy.
THE MOTION CARRIED.
Meeting Time Extended
Councilmember Roy made a motion, seconded by Councilmember Brown, to extend the meeting
past 10:30 p.m.
Councilmember Kastein asked about the urgency of the matter that needed to be discussed in
Executive Session. City Manager Atteberry stated it was "urgent" and recommended that the
Executive Session be held.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Other Business
Councilmember Ohlson asked for support to ask the City Manager to look into preserving Jack
Benny's hand print at the corner of College and Mountain Avenues. He noted it was being worn
down by people walking on it.
Executive Session Authorized
Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to adjourn into
Executive Session pursuant to Section 2-31(a)(2) and (a)(3) of the City Code for the purpose of
discussing the possible acquisition of real property and to discuss related legal issues with the City
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Attorney. The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson,
Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
(**Secretary's Note: The Council adjourned into Executive Session at 10:40 p.m. and reconvened
following the Executive Session at 11:20 p.m.)
Adjournment
Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to adjourn the
meeting to 6:00 p.m. on May 23, 2006 to discuss any matters that might come before the Council.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
The meeting adjourned at 11:22 p.m.
Mayor
ATTEST:
City Clerk
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