HomeMy WebLinkAboutMINUTES-03/01/2005-RegularMarch 1, 2005
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, March 1, 2005,
at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered
by the following Councilmembers: Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and
Weitkunat.
Staff Members Present: Atteberry, Krajicek, Roy.
Citizen Participation
Mayor Martinez stated each participant would have two minutes to speak.
Courtney Stevens, ASCSU Director of Community Affairs, spoke regarding the findings of the
economic study relating to the "three unrelated" ordinance and stated the ordinance was economic
class based discrimination. She urged the Council to reject the idea of making a violation of the
ordinance a civil infraction and to find another feasible alternative relating to occupancy rates.
Greg Snyder, 619 Bear Creek Drive, spoke regarding boards and commissions terms and staffing.
He stated Randy Fisher had indicated that he had spent 16 years on boards and commissions. He
noted that the population of Fort Collins exceeded 120,000 and that it was not fair to have one
person serving on various boards and commissions for that long. He stated this "stifled" the ability
of the rest of the population to serve and have their opinions and input heard. He stated there was
no shortage of qualified people to serve on boards and commissions and that people would apply
if they knew they had a fair opportunity to be selected to serve. He stated when there was a
"revolving door" for term -limited board members to move to other boards or commissions. He
stated this made the term limit a "moot point." He stated there should be a "buffer period" such as
four years before a person leaving a board or commission could be appointed to another.
Mary Robertson, 1824 Lakeview Drive, spoke in opposition to the repeal of the grocery tax.
Bob Fitskie spoke in favor of removing fluoride from the water supply.
Mike Powers, 607 Warren Landing, spoke against repeal of the grocery tax and urged people to vote
no on the April ballot issue.
Victoria Loran, 2207 Wakefield Drive, asked for clarification of Council's intent regarding small
business owners. She stated she owned and operated a small, growing manufacturing business and
that the City imposed many regulations on nearly every aspect of her operation. She stated City
Council recently refused to register rental properties and was considering lifting all restrictions on
the number of people that a business (a landlord) could pack into a rental. She stated it appeared that
the Council was revising the uses allowed in low density single-family residential neighborhoods.
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She stated "business was business" and that rental businesses were making a profit at the expense
of quality of life. She stated rentals should be required to meet the same requirements as other
businesses.
Paul Anderson expressed disappointment in Council's 3-3 vote relating to rental registration. He
stated the economic study indicated that failure to enforce the "three unrelated" ordinance was
costing homeowners tens of thousands of dollars and was artificially driving up the price of homes.
He stated landlords should be held accountable.
Blair Trautwein, 1819 Lakeshore Circle, supported the extension of the street maintenance program
sales tax and urged voters to vote in favor of the ballot measure.
Ray Czaplewski, 2012 Huntington Circle, thanked Mayor Martinez for his initiative on the Campus
West area police substation. He stated there were "core problems" putting single-family
neighborhoods at risk relating to failure to enforce the "three unrelated" ordinance. He stated there
was a "black market" in rentals in single-family neighborhoods.
Kelly Ohlson, 2040 Bennington Circle, urged all voters to vote against repeal of the grocery sales
tax. He stated this repeal would "take a chainsaw" to the issue of budget cuts and would harm this
community and the municipal organization.
Bruce Heath, 4920 Crest Road, Brookwood Estates, opposed the southwest enclave annexation.
Ann Marie Merline, 405 North Grant Street, opposed the repeal of the grocery tax because of the
potential impact on quality of life. She urged voters to vote against ballot measure 1.
Lori Brunswick, Rolland Moore West Neighborhood, commented regarding the economic and
market study relating to the "three unrelated" ordinance. She stated the study showed that 71 % of
households in violation of the ordinance were occupied by college students (an estimated 1,070
rental units with 5,003 renters). She stated over 14,750 households lived near violators of the
ordinance, affecting over 36,000 people, and that disruptive parties affected over 6,490 people. She
stated approximately two-thirds of violators occupied single-family homes. She stated violations of
the "three unrelated" ordinance devalued other property values.
Steve Musiel, 5846 South College Avenue, liquor store owner, spoke in opposition to the southwest
enclave annexation.
Edmund Robison, 3632 Crescent Drive, opposed the southwest enclave annexation.
Al Baccili, 520 Galaxy Court, supported repeal of the grocery sales tax and opposed the vendor fee.
He asked that the voters support repeal of the tax.
Doug Brobst, 1625 Independence Road, spoke regarding the "greed" shown by property managers
and landlords in opposing the rental registration program that would have cost them about $2 per
month. He stated "distortion" of the issue had taken place and that the rental business was "big
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business" in Fort Collins. He stated the proponents of rental registration wanted to hold
irresponsible landlords accountable. He stated residential and family neighborhoods did not
consider the issue to be "dead" and asked that the new Council take a leadership role on the issue.
Ed Robert, 1923 Linden Ridge Drive, asked the Council to look carefully at funding of essential
services and "nice to have" services. He stated the maintenance of streets (ballot issue 3) was an
essential service and that there needed to be consistent funding of that service. He supported the
ballot measure and urged the Council to look at permanent funding for streets.
Wayne Anderson, Fossil Creek Drive resident, opposed the southwest enclave annexation.
Matt Fries, Chairperson for the Committee on Transportation Solutions, urged voters to vote yes on
ballot issue 3. He stated this was continuation of an existing sales tax to fund maintenance for
existing streets, bike lanes and sidewalks.
Dr. Bud Heron urged voters to vote against ballot issue 1 (the food sales tax repeal). He noted that
the sales tax rebate program had been changed to benefit more low income people.
Wes Reitz, Fort Collins resident, expressed concern regarding the "three unrelated" ordinance. He
stated the ordinance discriminated against students who did not violate City nuisance ordinances.
Agenda Review
City Manager Atteberry stated a revision relating to mitigating factors had been made to item #8
Second Reading of Ordinance No. 019, 2005, Amending Chapter 20 of the City Code to Add a New
Article Relating to Nuisance Gatherings.
CONSENT CALENDAR
7. Consideration and approval of the regular Council meeting minutes of February 1 2005
Second Reading of Ordinance No. 019, 2005, Amending Chapter 20 of the City Code to Add
a New Article Relating to Nuisance Gatherings.
The Nuisance Gatherings provision creates a new misdemeanor criminal offense directed at
social gatherings or parties that result in nuisance behaviors occurring on neighboring
properties. These amendments would be in conjunction with continued efforts to more
effectively and proactively enforce current nuisance laws, including loud parties, code
compliance issues and the Public Nuisance Ordinance. Ordinance No. 019, 2005, was
adopted 6-0 (Councilmember Bertschy was absent) on First Reading on February 15, 2005.
The motion included direction to incorporate on Second Reading an amendment regarding
party guest responsibility for costs of abatement. Staff has drafted a separate Ordinance (see
Item #16) to specifically address that issue.
9. Second Reading of Ordinance No 023 2005 Appropriating Unanticipated Grant Revenue
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in the General Fund for the Larimer County Drug Task Force.
The Larimer County Drug Task Force ("Task Force") includes Fort Collins Police Services,
Loveland Police Department, Larimer County Sheriff's Department, Drug Enforcement
Administration, and the Colorado State University Police Department.
Fort Collins Police Services applied to the Office of National Drug Control Policy on behalf
of the Task Force for federal grant monies to help fund the investigation of illegal narcotics
activities in Larimer County. The City has recently received notification of the grant award
in the amount of $45,000. These funds will be used to help offset the overtime costs of each
participating agency.
This appropriation is not a request to identify new dollars for the Fort Collins Police Services
2005 budget. This action appropriates the $45,000 in new federal grant money. As the
administrator of this grant, Fort Collins Police Services will assure participating agencies
receive their share of the funds. Ordinance No. 023, 2005, was adopted 6-0 (Councilmember
Bertschy was absent) on First Reading on February 15, 2005.
10. Second Reading of Ordinance No. 024, 2005, Amending Various Sections of the City Code
to Define the Term "Growth Management Area" and to Replace the Existing References to
"Fort Collins Urban Growth Area" with Said Term.
This Ordinance, which was adopted 6-0 (Councilmember Bertschy was absent) on First
Reading on February 15, 2005, adds to Chapter 1 of the City Code a definition of the term
"Growth Management Area". The City Charter contains a definition of the term "Fort
Collins Urban Growth Area" and the new "Growth Management Area" definition references
and includes that Charter definition. The term "Growth Management Area" is the more
commonly accepted and currently used term and this change will update the Code
accordingly. Also, there are two references in the City Code to the term "Fort Collins Urban
Growth Area" and these references are revised to instead reference the newly added term,
"Growth Management Area".
11. First Reading of Ordinance No. 027, 2005, Appropriating Bond Proceeds in the Water Fund.
A $4,150,781.22 non -interest bearing bond was issued to the City of Fort Collins Water
Utility Enterprise to acquire from the North Poudre Irrigation Company (NPIC) the property
and rights it owns that were necessary to proceed with the permitting and development of
the Halligan Reservoir Enlargement Project, however, no appropriation was done at that
time. The transfer and sale of the property to the City of Fort Collins closed on January 22,
2004. Because the debt consists of a non -interest bearing bond, the value of the investment
in the property is calculated at the net present value of the payment streams required in the
bond obligation, which results in an appropriation for $2,476,446.24 in constructive bond
proceeds. The City will commit to the annual payments, which includes the principal and
the interest as imputed, for the next 27 years. A payment schedule is attached. The Water
Utility will pay the debt primarily from development fees paid to the City.
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This Ordinance appropriates the constructive bond proceeds to the Halligan Project.
12. First Reading of Ordinance No. 028, 2005, Appropriating Unanticipated Revenue in the
Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin.
The Spring Creek Stormwater Basin Master Plan identified several capital projects to reduce
the risk of flooding in the Spring Creek Basin. A $2,697,188 State of Colorado Division of
Emergency Management ("CDEM") Grant has been awarded to the City for the construction
of some of the stormwater projects in the Spring Creek Basin. The projects to be constructed
with the grant include expansion of the Taft Hill, Rolland Moore and Southern Railroad
Detention Ponds and the stabilization of the Burlington Northern Railroad embankment. The
performance period for the grant is December 16, 2004 through December 31, 2006.
This new grant was made available from the CDEM through an agreement with the Federal
Emergency Management Agency for Pre -Disaster Mitigation ("PDM") projects. The Fort
Collins projects were selected through a nationwide competitive process and may be the first
in the nation to be awarded the PDM grant for a capital project.
The Ordinance appropriates the grant proceeds to the Spring Creek PDM Capital Project.
13. First Reading of Ordinance No. 029, 2005, Amending Chapter 15 of the City Code Relating
to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires.
Chapter 15, Article XIV of the City Code defines various terms used in that Article which
pertain to the licensing of"outdoor vendors." This Ordinance would establish a distinction
between outdoor vendors and "downtown plan area concessionaires." Staff recommends
adoption of the Ordinance, as it was the original intent to differentiate between the two
different operations when the Outdoor Vendor Ordinance was revised in 1994. The
amendment to the Code would reflect what the working procedure has been sincel994.
14. First Reading of Ordinance No. 030, 2005, Amending the Land Use Code by Adding
"Resource Recovery" Use to the Public Open Lands (P-O-L) Zoning District.
This Ordinance would amend the Land Use Code to add "Resource Recovery" to the P-O-L
zoning district.
Resource recovery is defined as:
"The process of obtaining materials or energy, particularly from solid waste"
Resource recovery complements existing uses in the Land Use Code related to waste
diversion, including recycling and composting facilities, but permits additional alternatives
to landfilling.
In the short-term, adding Resource Recovery to the P-O-L district will allow the Natural
Resources Department (NRD) to lease existing facilities at the Resource Recovery Farm to
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Frontline Bioenergy for experimental research in extracting hydrogen from biomass
(specifically chipped tree branches). The 150-acre Resource Recovery Farm (RRF) is
located just south of East Prospect Road at I-25.
Staff recommends that "resource recovery" be added to the Land Use Code as an allowable
use subject to administrative review.
15. First Reading of Ordinance No. 031, 2005, Amending Various Sections of the Fort Collins
Traffic Code.
At the time of the adoption of the Traffic Code, it was the understanding of staff and Council
that the Traffic Code would most likely be subject to future amendments, not only for the
purpose of clarification and correction of errors, but also for the purpose of ensuring that the
Traffic Code remains consistent with State traffic laws. The proposed amendments will:
• Renumber the speeding in a construction and school zones sections for placement
in the speeding section of the Traffic Code, a more logical placement for these
provisions; and
• Renumber the funeral procession provision for placement in a more appropriate
section of the Traffic Code; and
• Provide a definition for "street rod" consistent with State statute.
Staff will submit the changes to Colorado Department of Transportation (CDOT) for
approval. As these amendments are not substantive, it is anticipated that CDOT will
approve.
16. First Reading, of Ordinance No. 033, 2005, Authorizing the Conveyance of a Non -Exclusive
Easement to LaFarge West, Inc. Over, Across and Under a Portion of the Poudre Trail
The City has constructed the Poudre Trail east and west of Taft Hill Road. The latest
segment was constructed west of Overland Trail on a strip of land that was donated by
LaFarge West, Inc. LaFarge still owns land abutting both sides of the Trail. The property
on both sides is being used for water storage and LaFarge has a need to connect between the
ponds on both sides of the trail. LaFarge is requesting easements for underground pipe
installation to convey water in 3 locations on the City -owned property. Each easement will
be 85 feet by 100 feet. City staff has reviewed the request and has no objections to the
requested easements.
17. First Reading of Ordinance No 034, 2005, Authoriziniz the Lease of City -Owned Property
at 3829 East Prospect Road, Fort Collins. Colorado. to Frontline Bioenergv
Vacant buildings suitable for industrial uses are located on the Resource Recovery Farm
property (RRF), which was transferred from Utilities to the Natural Areas program for use
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as open space in 2003. Frontline BioEnergy, which is working to develop innovative
technology and integrate systems that convert biological waste materials (biomass) into
useful energy products such as hydrogen through thermal or microbial processes, is
interested in using certain of the buildings at RRF. Frontline BioEnergy offers proven
research methods, design and manufacturing expertise, and system integration. In
furtherance of the City Council adopted policy of encouraging development of and
implementing hydrogen -related projects in Fort Collins, and funds have been budgeted for
Utilities' use for hydrogen fuels projects. Utilities has proposed to use a portion of those
funds to assist Frontline BioEnergy in acquiring this lease space from the Natural Areas
program for the start-up of its operations.
The lease would include the following: both levels of the office, consisting of 2,106.88
square feet, 2,450.09 square foot section of the shop, and an outside area on which the
tenant would construct a temporary open front pole shed, together with a small amount of
parking area.
18. First Reading of Ordinance No. 035, 2005, Authorizing the Conveyance of a Non-exclusive
Easement Interest to North Weld County Water District for an Existing Waterline Across the
Vehicle Storage Building Property.
The Vehicle Storage Building Property is located at 701 Wood Street. There is an existing
North Weld County Water District waterline across the property that was installed in the
1960s without recorded documentation that City staff or North Weld County Water District
Staff can locate. The line was in place at the time the City acquired the property, and City
staff likely knew of the existence of the waterline, as it continues across a number of other
properties owned by the City. Both parties acknowledge that an easement document
defining and providing notice of the waterline easement needs to be executed and recorded.
19. Resolution 2005-019 Authorizing a Revocable Permit for a Period of Five Years on Property
Owned by the City for the Puroose of Seeding and Irrigating a Future Park Site.
With the intention of providing a future neighborhood park within the recently approved
Trail Head development (the "Development"), the City purchased Tract H (the "License
Area") from Trail Head Inc. (the "Developer").
This proposed License will allow the Developer, at the Developer's expense, to install an
irrigation system and seed the License Area in grass which will be a blend approved by the
City. This "greening" of the future park will be done to coincide with the Developer's
construction of the Development. In addition, the Developer will be responsible for the cost
of the maintenance of the irrigation system, regular mowing of the grass and the cost of
sufficient water to irrigate the License Area during the term of the License.
Providing this green space will offer an immediate benefit to the property owners as
development occurs and delays the City's obligation for park maintenance for five years.
The City's Park Planning and Development staff will meet with the neighbors to develop a
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plan for the park as the year 2010 approaches. The City purchased this 4 acre neighborhood
park site in February, 2005.
20. Resolution 2004-020 Supporting City Participation in the Mark of Distinction for Character
Development through Youth Sports.
In 2001, the City of Fort Collins adopted Resolution 2001-117 naming Fort Collins as a City
of Character. Recognizing that good character is the principal foundation for personal,
family and organizational success, the City has joined Character Fort Collins in its effort to
facilitate the development of good character throughout the community.
An area that has generated specific attention is that of youth sports programs. Organized
youth sports programs are one of the greatest resources available for instilling valuable life
skills in youngsters. Unfortunately, the climate surrounding some of today's programs has
become less than ideal. In an effort to further develop good character in youth sports,
Character Fort Collins, Colorado State University, Poudre School District, Healthier
Communities Coalition of Latimer County and the City of Fort Collins are partnering to
develop a "Mark of Distinction" program. Organized youth sports teams, including
recreational, club and interscholastic, will be eligible to receive the "Mark of Distinction"
based on criteria to be established by the partner organizations. The criteria will promote
character development and ethical behavior of athletes, coaches, parents, fans and team
administrators.
This Resolution confirms the City's participation in this partnership and encourages youth
sports and interscholastic teams and their administrative organizations to pursue the "Mark
of Distinction."
***END CONSENT***
Ordinances on Second Reading were read by title by City Clerk Krajicek.
8. Second Readina of Ordinance No. 019, 2005 Amending Chapter 20 of the City Code to Add
a New Article Relating to Nuisance Gatherings.
9. Second Reading of Ordinance No 023 2005 Appropriating Unanticipated Grant Revenue
in the General Fund for the Latimer County Drug Task Force
10. Second Reading of Ordinance No. 024, 2005, Amending Various Sections of the City Code
to Define the Term "Growth Management Area" and to Replace the Existing References to
"Fort Collins Urban Growth Area" with Said Term.
Ordinances on First Reading were read by title by City Clerk Krajicek.
11. First Reading of Ordinance No. 027 2005 Appropriating Bond Proceeds in the Water Fund
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12. First Reading of Ordinance No 028 2005 Appropriating Unanticipated Revenue in the
Storm Drainage Fund for Projects to Reduce Peak Flows in the Spring Creek Basin
13. First Reading of Ordinance No. 029, 2005, Amending Chapter 15 of the City Code Relating
to the Definition of Outdoor Vendor Licensees Downtown Plan Area Concessionaires.
14. First Reading of Ordinance No. 030, 2005, Amending the Land Use Code by Adding
"Resource Recovery" Use to the Public Open Lands (P-O-L) Zoning District
15. First Reading of Ordinance No. 031, 2005, Amending Various Sections of the Fort Collins
Traffic Code.
16. First Reading of Ordinance No. 033, 2005, Authorizing the Conveyance of a Non -Exclusive
Easement to LaFarge West, Inc. Over, Across and Under a Portion of the Poudre Trail
17. First Reading of Ordinance No. 034, 2005, Authorizing the Lease of City -Owned Property
at 3829 East Prospect Road, Fort Collins, Colorado, to Frontline Bioenergy.
18. First Reading of Ordinance No. 035, 2005, Authorizing the Conveyance of a Non-exclusive
Easement Interest to North Weld County Water District for an Existing Waterline Across the
Vehicle Storage Building Property.
24B. First Reading of Ordinance No. 026, 2005 Amending Chapter 7.5 and Chapter 26 of the
City Code to Establish Requirements and Procedures for Utility Service Outside the Fort
Collins Growth Management Area,
25A. First Reading of Ordinance No. 025, 2005, Amending Section 2-31 of the City Code of the
so as to Clarify That City Council Can Provide Direction to City Staff or Other Persons
During to Executive Sessions.
25B. First Reading of Ordinance No. 036, 2005, Amending Section 2-33(b) of the City Code so
as to Eliminate City Council's Ability to Go off the Record During Attome -Client
Communications that Occur in Executive Session.
26. First Reading of Ordinance No. 037, 2005, Repealing and Reenacting Article II of Chapter
10 of the City Code Regarding Flood Hazard Areas
27. First Reading of Ordinance No. 032, 2005, Adding Restitution Requirements to Section 1-15
of the City Code Relating to the General Penalty for City Code Violations and Traffic
Infractions.
Councilmember Weitkunat made a motion, seconded by Councilmember Bertschy, to adopt and
approve all items on the Consent Calendar. The vote on the motion was as follows: Yeas:
Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
M£3
THE MOTION CARRIED.
Consent Calendar Follow-up
March 1, 2005
Mayor Martinez asked that staff present clarifications to item # 13 First Reading of Ordinance No.
029, 2005, Amending Chapter 15 of the City Code Relating to the Definition of Outdoor Vendor
Licensees Downtown Plan Area Concessionaires before Second Reading.
At the request of Mayor Martinez, City Manager Atteberry commented regarding item #20
Resolution 2004-020 Supporting City Participation in the Mark of Distinction for Character
Development through Youth Sports.
Councilmember Tharp spoke regarding item #12 First Reading of Ordinance No. 028, 2005,
Appropriating Unanticipated Revenue in the Storm Drainage Fund for Projects to Reduce Peak
Flows in the Spring Creek Basin and item #II First Reading of Ordinance No. 027, 2005,
Appropriating Bond Proceeds in the Water Fund.
Councilmember Hamrick commented regarding item # 14 First Reading of Ordinance No. 030, 2005,
Amending the Land Use Code by Adding "Resource Recovery" Use to the Public Open Lands (P-O-
L) Zoning District.
Councilmember Roy requested additional information regarding item #12 First Reading of
Ordinance No. 028, 2005, Appropriating Unanticipated Revenue in the Storm Drainage Fund for
Projects to Reduce Peak Flows in the Spring Creek Basin. Bob Smith, Stormwater Planning
Manager, spoke regarding the funding opportunity and work that would be done on Spring Creek
ahead of schedule with the grant money.
Councilmember Kastein commented regarding item #8 Second Reading ofOrdinance No. 019, 2005,
Amending Chapter 20 of the City Code to Add a New Article Relating to Nuisance Gatherings.
Staff Reports
City Manager Atteberry reported on the Lincoln Center's new on-line ticket sales program. He also
reported on the partnership among CSU, the Neighborhood Resources Office and Channel 27 to
produce a video to welcome new students and inform them of community standards and policies.
Councilmember Tharp asked when the economic study on the "three unrelated" ordinance would
be scheduled for Council discussion. City Manager Atteberry stated the Study Session the "three
unrelated" ordinance and the results of the economic study was scheduled on March 8.
Councilmember Reports
Councilmember Bertschy reported that Chip Steiner and two members of the DDA visited
Chatauqua in New York and that the DDA was working on development of a cultural district
concept for the downtown that would encompass the arts community as well as performing arts
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venues. He stated the DDA was also investigating enterprise zone status. He also reported that
Mayor Martinez chaired a meeting attended by City and CSU representatives to begin the planning
process for "unruly gatherings" and spring parties. He stated there would be another meeting in a
month.
Mayor Martinez stated the intent was to be in the "preventive and proactive" mode to prevent
problems from occurring.
Councilmember Tharp reported on the status of the Airport 20-year study/plan update. She stated
the review group was encouraging the consultant to look at land expansion to ensure adequate space
for a growing Airport. She stated the direction to the consultant was that the runway should not
expand to the north due to encroachment on a conservation easement. She also reported on I-25 EIS
review group discussions about data and options for expansion of I-25.
Councilmember Hamrick spoke regarding the impacts of airport expansion on southeast Fort
Collins. He stated he would be looking at any possible negative impacts on the residents in that
area.
Councilmember Weitkunat reported on a Colorado Municipal League seminar on legislative issues.
Items Relating to Out of City Utility Service, Adopted
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY
A. Resolution 2005-018 Regarding Utility Service in the Laporte Area.
B. First Reading of Ordinance No. 026, 2005, Amending Chapter 7.5 and Chapter 26 of the
City Code to Establish Requirements and Procedures for Utility Service Outside the Fort
Collins Growth Management Area.
At the December 14, 2004, City Council Study Session, Council discussed the extension of City
wastewater service near Laporte. Council agreed with the staffrecommendation for Option 4: City
provides wastewater treatment through a new wastewater district. Resolution 2005-018 establishes
policyfor this service and directs staffto cooperate with various entities that are pursuingformation
of a special district in the Laporte area. The agreement between the City and the special district
will be presented to Council for final approval. The Resolution also provides direction regarding
the resolution of outstanding issues related to an outdated wastewater service agreement with
Laporte Water and Sanitation District.
Chapter 26 of City Code outlines a process in which water or wastewater service can be provided
outside city limits if certain conditions are met. City Plan Policy GM-5.1 discourages extension of
utilities outside the City's Growth Management Area ("GMA) unless the extension is consistent
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with City Plan and has a community benefit. Ordinance No. 026, 2005 will clarify this ambiguity
and require that the areas to be served outside the GMA must be approved by City Council.
BACKGROUND
The City of Fort Collins has provided utility service to parts of the Laporte area for many years.
Water service to the area began in the 1920s and wastewater service in the early 1970s. The City
owns the water system in Laporte and operates and maintains the wastewater collection system
under an agreement with the Laporte Water and Sanitation District.
In January 2004, Larimer County adopted the Laporte Area Plan. The Laporte area is an
unincorporated area outside city limits and outside the GMA (see attached context map). Portions
of the Laporte Area Plan include approximately 2000 dwelling units shown to develop at urban level
densities (i.e. 2-4 and 4-6 units per acre). These densities will necessitate service from a public
sewer system.
The City has since received two formal requests for utility service in this area and several informal
inquiries about wastewater service. In the past, requests for utility service have been processed in
accordance with City Code Article Xwhich generally says that ifcertain conditions are met, service
will be provided. In contrast, City Plan discourages extension of utilities outside the GMA unless
there is a community benefit. Staff is seeking clarification andpolicy direction regarding extension
of sewer service in the Laporte area.
In the Laporte Water/Sewer Services Policy Report prepared by City staff, options for wastewater
collection and treatment for the area included in the Laporte Area Plan include:
• septic systems (rural -type low densities only)
• community/subdivision sewer systems
• new sanitation district(s)
• Boxelder Sanitation District
• City service
Staffbelieves it is importantfor the City to provide wastewater service to reduce the potential ofnew
wastewater treatment facilities upstream from Fort Collins and to protect water quality in the
Poudre River. The Policy Report identified the following policy options for providing that service.
Option 1: Maintain existing process for out -of -city service requests by reviewing requests on
a case -by -case basis.
Option 2: Continue service only in the existing service area (Laporte Water and Sanitation
District) but not allow extensions to other areas outside the GMA.
Option 3: Provide future service directly to new development within a limited area as defined
by the Laporte Area Plan.
Option 4: Provide treatment only through a new district in a limited area as defined by the
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Laporte Area Plan.
Pros and cons of these options were reviewed at the December 14, 2004, Council study session.
During the review of the Laporte Area Plan and the study of the City's policy options, City staff also
assessed impacts of Laporte area development on several other City services including
transportation, parks and library. The reason that these services were studied and not others was
that much of the funding for these services is provided through development impact fees and not
sales taxes. In addition, other services will be funded by impact fees that are in place and will be
collected from new developments in the Laporte area. It is important to note that these impacts on
City services are likely to occur whether or not the Cityprovides wastewater service. These impacts
were estimated to be:
• Transportation: Potential 4 to 6% increase on major streets in area ($400-600/unit)
• Library: Currently 30% usage by Laporte residents ($260-606/unit)
• Parks: Potential 2 to 3% increase in usage ($435-669/unit)
Staffs recommendation is that the Cityprovide wastewater treatment through a new district (Option
4 above) with the following conditions:
• The property to be served by the City's wastewater treatment services must be within the
defined area shown on Exhibit A.
• The development served must be consistent with the Laporte Area Plan as adopted by
Larimer County.
• The development must be consistent with Chapter 26 of City Code — Utility Service
Outside City Limits.
• The wastewater treatment service agreement must provide for collection on non -utility
fees as discussed above.
In the event that efforts to form a special district are not successful, staffhas recommended that the
Citypursue Option 3: Provide future service directly to new development within a limited area as
defined by the Laporte Area Plan.
This item has been presented to the Planning and Zoning Board and the Water Board. At the
Planning and Zoning Board meeting on November 18, 2004, the Board voted (5-1) to support the
staffrecommendation, and the Water Board voted unanimously to support the staffrecommendation
at its meeting on December 2, 2004. Information regarding those Board meetings is attached.
The major emphasis of the study completed on the Laporte area has been wastewater, however, as
noted at the study session, the City currently supplies water to portions of Laporte within the
Laporte Water and Sanitation District. Under prior agreements with the District, the City will
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continue water service to this area and infzll development that may occur. Most of the proposed
development within the Laporte Area Plan will obtain waterfront the West Fort Collins Water
District.
Since the Council study session on December 14th, property owners east ofLaporte have continued
to research and move forward with the formation of a special district. Developers of The Grove
subdivision have recently hired an engineer and an attorney to prepare the documents needed to
proceed with the formation of a special district. The property owners currently involved in the
discussions and planningfor this district include Charles Meserlian, Chris Kaul, John Stegner, John
Donaldson, Bernard Henrie, Earl Komer and LaFarge. Since it is the City's desire to provide
wastewater treatment and thereby avoid wastewater discharges upstream from Fort Collins, it is
to the City's advantage to cooperate with these parties by providing information that will be needed
for the preparation of these documents. Other than this cooperation, the City will incur no expense
in the process to form the district. The proposed district boundary is consistent with the higher
density areas shown in the Laporte Area Plan approved by Larimer County.
Resolution 2005-018 establishes policyfor this service andprovides directionfor the City Manager
to work with various entities that are pursuing formation of a special district in the Laporte area.
Any agreements negotiated with special district(s) will be present to Council for final approval.
In addition, City staff has continued its efforts to resolve outstanding issues related to a 1970
agreement between the City and Laporte Water and Sanitation District for wastewater service in
that area. The Resolution authorizes City Manager to negotiate with the Laporte Water and
Sanitation District on a new agreement or the dissolution of the District.
As noted above, City Code and City Plan are somewhat inconsistent in regard to the extension of
utilities outside the GMA. Ordinance No.026, 2005 amends Chapter 26 of City Code to differentiate
between the requirementsfor outside -City and outside- GMA utility service requests and will require
that the areas to be served outside the GMA be approved by City Council. In addition, the
ordinance amends Chapter 7.5 of City Code to allow the City Manager to establish and collect
special surcharges as a condition of obtaining utility service outside the GMA. "
City Manager Atteberry introduced the agenda item
Roger Buffington, Utilities Services, stated this issue was presented at the December 14, 2004 Study
Session. He stated the purpose of the agenda item was to finalize policy direction on utility service
outside the Growth Management Area, in particular the area northwest of Fort Collins. He stated
the City currently provided utility service to portions of the Laporte area. He stated water service
began in the 1920's and sewer service began in the early 1970's. He stated the City owned the water
system in Laporte and that both water and sewer service were provided by the City under
agreements with the Laporte Water and Sanitation District. He stated in January 2004 Larimer
County approved the Laporte Area Plan establishing land use in the area in and around the
unincorporated community of Laporte. He stated portions of the plan included residential and
commercial development with densities that would require a centralized sewer system. He stated
the City had received two formal requests and several informal inquiries for utility service. He stated
the City received calls regarding the availability of sewer service in those areas where septic systems
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did not work well during wet periods. He stated the West Fort Collins Water District would provide
water service to most of the new development in the Laporte area. He presented visual information
relating to the relationship between the Laporte Area Plan, the Laporte Water and Sanitation District
and the City of Fort Collins Growth Management Area. He stated the areas needing centralized
sewer included the existing core area of Laporte, the area to the east along County Road 54G and
south along Taft Hill Road, as well as two small areas on the south edge of Laporte bordering the
Laporte Water and Sanitation District boundary. He stated there were two City policies applying
to out -of -City utility service: (1) City Code Section 26-651 outlining the process for consideration
of requests for service on a case -by -case basis, and (2) City Plan, which discouraged the extension
of utilities outside of the Growth Management Area unless there was a community benefit. He
stated the two policies were in conflict and that this was the reason staff was seeking policy direction
from the City Council. He stated the wastewater options for the proposed development outlined in
the Laporte Area Plan were that septic systems for those low density development areas, subdivision
systems, a new sanitation district or districts, Boxelder Sanitation District service, or service by the
City. He stated the City had identified four policy options: Option 1 - maintain the existing process
of reviewing requests on a case -by -case basis; Option 2 - continue service to the existing Laporte
Water and Sanitation District but not allow service to other areas outside the Growth Management
Area, which would likely result in treatment facilities and discharges upstream of Fort Collins;
Option 3 - provide service directly to new development in a limited area defined by the Laporte Area
Plan; and Option 4 - provide treatment only through a new district to a limited area outlined by the
Laporte Area Plan. He stated City staff felt that it was important to avoid future wastewater
discharges upstream from Fort Collins which would affect the water quality in the Poudre River.
He stated City staff was recommending that Option 4 be adopted with the following conditions:
utility service would be provided only within the higher density residential and commercial
development shown in the Laporte Area Plan; development projects would be consistent with the
Laporte Area Plan; service would be subject to all applicable ordinances and regulations; and the
utility service agreement would provide for the collection on non -utility fees. He stated in the event
a new district was not formed staff recommended that the City proceed with Option 3. He stated the
City identified other potential impacts on the City and proposed collecting non -utility fees for
transportation, parks and library. He stated these fees were estimated to be in the range of $1,100
to $1,800 per dwelling unit. He stated the City had a contractual obligation to provide water and
sewer service within the Laporte Water and Sanitation District boundaries. He stated under the staff
recommendation the City would provide wastewater treatment for areas outside of the Laporte Water
and Sanitation District boundaries. He stated the West Fort Collins Water District currently served
portions of the western and northern portions of Laporte and would likely serve a majority of the
new development in the Laporte area. He stated a Resolution and an Ordinance were being
presented for Council consideration. He stated Resolution 2005-018 would establish policy for
wastewater service in the Laporte area, would authorize the City Manager to work with property
owners on a special district and to negotiate a service agreement, would authorize the City Manager
to work with the Laporte Water and Sanitation District on a new agreement or dissolution of that
district, would require final approval by City Council of any new service agreements, and would
authorize the City Manager to develop a schedule of non -utility charges. He stated Ordinance No.
026, 2005 would amend the City Code to differentiate between outside City and outside GMA utility
service requests, would require City Council approval of utility service outside of the GMA, and
would provide for non -utility surcharges when utility service was extended outside of the GMA.
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Tim O'Hara,1929 West County Road 56, chairman of the Laporte Area Planning Advisory Council,
stated the Laporte Area Plan was based on the sewer service. He stated the original agreement with
the City was that the sewer service could be extended north with development paying the costs. He
stated there were failing septic systems in the Farview Subdivision and raw sewage being discharged
into irrigation canals. He stated if City service was provided that this would also avoid the problem
of treatment facilities upstream putting effluent into the river.
Mayor Martinez stated the Water Board voted unanimously to recommend approval of Option 4 but
expressed concerns that the non -utility fees might cause developers to look for less costly options
that might result in other treatment plants being constructed northwest of the City. He asked for
clarification about the non -utility fees. Timothy Wilder, CPES, stated non -utility fees being
considered were street oversizing, community parkland and library fees. He stated those fees were
not currently collected in unincorporated Latimer County. He stated staff believed that there was
an impact on these services by the new development. He presented a comparison of fees for the
County and the City and the proposed fees for the Laporte area. He stated staff believed that the fees
would be fair and would be tailored to the impacts that Fort Collins would experience with the
additional development in Laporte.
Mayor Martinez asked if the extra fees would cause the developers to look at alternatives. Wilder
stated there had been numerous discussions about whether the fees would discourage connection to
City sewer services. He stated staff believed that costs needed to be offset.
Mayor Martinez asked if the City had inquired of the developers as to whether they had the same
concern as expressed by the Water Board. Wilder stated the City had heard indirectly from the
developers. He stated the Water Board had mixed reaction to the proposal and did not feel strongly
enough to take a position on the matter.
Mayor Martinez asked about how the City had heard from the developers. Wilder stated Utility
Services had met with developers and that concern about the fees had been expressed at that
meeting.
Mayor Martinez asked if the developers indicated that they would be looking at another alternative.
Buffington stated the developers indicated a concern about the amount of the fees and an interest
in weighing other options. He stated the developers appeared to be interested in working with the
City and would be concerned if the fees were too high.
Mayor Martinez asked if the Water Board's concern was legitimate. Buffington replied in the
affirmative.
Councilmember Roy stated the Water Board's letter stated: "The Board felt that the concept of
collecting non -utility fees as a condition of providing utility service was not within their purview
and chose to remain silent on that item."
Mayor Martinez stated the Water Board's letter went on to say that the Board had concern that
collection of the non -utility fees might cause developers to look for less costly options which might
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result in other treatment plants being constructed northwest of the City. He asked what the
probability would be of that happening.
Councilmember Tharp asked if the costs with the non -utility fees were reasonable compared to the
other providers. Buffington stated the best option for the developers would be construction and
development of their own treatment facilities. He stated the cost for such facilities was unknown.
He stated the other option would be the Boxelder Sanitation District and that this would require a
costly lift station and force main to transport wastewater more than three miles to that system.
Councilmember Tharp asked if staff had estimated the cost for connection to the Boxelder system.
She stated negotiation of fees was difficult unless the City had some idea what the alternatives
would cost the developers. Buffington stated those types of cost estimates had not been done. He
stated the current City wastewater plant investment fees for a single-family residence was slightly
over $1,000 and that Boxelder's fees were in excess of $4,000. He stated there would be an
additional cost for Boxelder to connect Laporte to its system.
Councilmember Tharp asked for clarification that Boxelder's fees would be approximately four
times the City's fees. Buffington replied in the affirmative.
Councilmember Tharp stated that kind of information was helpful.
Mayor Martinez stated he did not want the City to price itself out of the market.
Councilmember Tharp stated the City's fees may be quite reasonable even with the non -utility fees
added. City Manager Atteberry suggested that staff obtain the comparative information for other
alternatives prior to Second Reading. He stated his concern was that this development would have
an impact on the services of the City.
Councilmember Kastein stated the City should cover fees to cover costs while being competitive.
He stated the goal should be to provide a needed service at a price that covers the City costs. He
asked for clarification regarding the recommendation to pursue Option 4, with Option 3 to be
pursued if Option 4 could not be done. He asked if the same fees would be applied under both
options and whether Council approval of the recommendation would give approval for Option 4 and
would not give staff direction to pursue Option 3. Wilder stated the same fees would be applied
under both options. Buffington stated he understood that the Resolution would give authority to
staff to proceed with Option 3 if the district did not form under Option 4.
Councilmember Kastein asked in what form the service agreements would be brought to Council
i.e. on an individual case -by -case basis or as a whole. Carrie Daggett, Assistant City Attorney,
stated Section 3 of the Resolution provided for wastewater service on an individual basis if the
district approach did not proceed. She stated the Resolution provided that the Council would
approve agreements with districts or other entities for providing service. She stated individual
agreements were done with individual property owners by way of out -of -City service agreements
and that those individual agreements would not be required to be brought to the Council for
approval.
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Councilmember Kastein asked if the City was "creating a lot of work" for itself i.e., were the
negotiations going to be detailed. City Manager Atteberry stated the intent of the district was to
minimize the individual negotiations and to prevent piecemeal case -by -case work. Wilder stated
this would allow consideration of service on a case -by -case basis in those areas that could not be
served by the district.
Councilmember Kastein favored going ahead with Option 4 and having the matter come back to
Council if that option did not occur.
Councilmember Tharp asked if Councilmember Kastein wanted to change the direction that was
given to staff at the study session to go ahead with Option 4 and then to move to Option 3 if that did
not work.
Councilmember Kastein stated since the study session he had learned that the approach for a district
was a "one size fits all" and that Council would not have a large part in the negotiations. He stated
Option 3 could be a lot of work for Council and staff. Mike Smith, Utilities General Manager, stated
there were several areas for which it was doubtful a district would ever be formed. He stated Option
3 would be needed to serve those areas. He stated even if the district formed that Option 3 would
still be needed for part of the area.
Councilmember Roy stated Council asked who the agreement would be with i.e., was there ground
work done on how the two different entities would be created to work out the agreement. Buffington
stated the responsibility for forming the district would be with the developers or property owners
who wanted to use that as a means of obtaining wastewater service. He stated the process for
formation of a district was included in the State statutes. He stated one developer had hired an
engineer and attorney to work on formation of the district and had conducted discussions with other
property owners interested in having their land included in the district. He stated there would be an
election by the property owners within the proposed district regarding the formation of the district.
Councilmember Roy asked what the total cost to the City to provide the service would be under
Option 4. Buffington stated at the present time the City's treatment facilities had capacity for the
additional load. He stated there would be a need to expand the treatment facilities in the future. He
stated wastewater plant investment fees would be collected as the area grows to be used toward the
cost of those improvements. He stated the City would be collecting revenue on a monthly basis for
the waste discharged to the City's system.
Councilmember Weitkunat asked if changes could be made to the estimated impact fees adopted by
Resolution if there were recalculations that indicated a need for adjustment. Wilder stated the
surcharges were identified in the Ordinance as well. He stated the fees were estimated and were
as close as possible to cover the impact. He stated additional work was needed on some of the fees.
Daggett stated Section 6 of the Resolution directed the City Manager to establish a schedule of fees
and charge those fees in connection with the service in the Laporte area. She stated the Council
could add a condition to Section 6 to direct the City Manager to do that if the Code section
authorizing the City Manager to establish those fees was enacted. She stated this would allow the
Resolution to go forward while leaving the fees question for Second Reading of the Ordinance. City
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Attorney Roy stated another alternative would be to adopt the Resolution at the same time as Second
Reading of the Ordinance. Wilder stated under the Resolution the City Manager would be
authorized to work on negotiations within the identified service area on a district basis or on an
individual case -by -case basis. He stated individual reviews would be required only outside of the
identified service area.
Councilmember Weitkunat asked if the staff recommendation supported the Laporte Area Plan.
Wilder replied in the affirmative.
Councilmember Hamrick asked what the incentive would be for the formation of a special district
in Laporte. Buffington stated the formation of the district would allow opportunity for financing of
necessary improvements associated with the development of the area. He stated the district would
offer a financing mechanism to pay for some of those improvements.
Councilmember Hamrick asked if that mechanism would offer a better cost than what was offered
by Fort Collins. Buffington stated the improvements financed would be the local wastewater
collection system and drainage improvements to serve the development. He stated the City would
not be involved with any funding or financing.
Councilmember Hamrick asked if the City tested the water quality along that stretch of the Poudre
River. Smith stated information could be provided to Council before Second Reading.
Councilmember Bertschy made a motion, seconded by Councilmember Tharp, to adopt Resolution
2005-018.
Councilmember Tharp stated she wanted to move ahead with this because it would address water
quality issues of interest to the City. She stated it appeared that even when the fees were included
that the City would be in a competitive position. She stated the City needed to cover its costs and
that this was a reasonable approach. She stated she wanted to see the comparative figures prior to
Second Reading to make sure that it was to Laporte's advantage to go with the City's established
system because the costs would be reasonable even with the fees.
Councilmember Roy stated it appeared that Laporte could not form the district until November. He
stated one driving force was the assumption that the water quality upstream was already becoming
a problem due to leaking septic systems. He stated it would be helpful to know if there was testing
data to substantiate that assumption. He stated it was important to remember that the City was not
in the business of subsidizing growth outside of Fort Collins with taxpayer dollars.
Mayor Martinez stated he was concerned that if the fees were too high that the developers could use
another source and still impact the City with the new growth without paying any impact fees.
Councilmember Roy stated he did not want to see any subsidy i.e., the City should recover its costs.
Councilmember Kastein stated he would support the motion. He stated the City would be providing
a service to an area that needed it, that the area was adjacent to the GMA, and that an existing
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wastewater facility would be used. He stated this would save dollars for everyone
Councilmember Tharp stated this would give the City control over the processing of waste so that
there would be no other plants upstream. She stated it was important from the health and community
benefit perspective that the City process the waste from this development. She stated this was the
City's motivation to even look at this issue.
Councilmember Weitkunat stated she would support the motion. She stated the City owned and
operated the Laporte water system and that this had been an ongoing obligation for many years. She
stated this was a cooperative venture that would have costs and benefits. She stated this would
benefit everyone.
Councilmember Roy stated he would support the motion. He stated the City was the right entity to
be working with Laporte to maintain the City's water quality.
Mayor Martinez stated he supported the motion with the caution to ensure that the City did not
charge too much.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: None.
us 96 suns [61,01 too R10191�7
Councilmember Bertschy made a motion, seconded by Councilmember Kastein, to adopt Ordinance
No. 026, 2005 on First Reading. The vote on the motion was as follows: Yeas: Councilmembers
Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED.
(Secretary's Note: The Council took a recess at this point.)
Items Relating to Section 2-31 and 2-33 of the
City Code Pertaining to Executive Sessions: Ordinance No. 025, 2005
Adopted as Amended on First Reading;
Ordinance No. 036, 2005 Failed to Pass on First Reading
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 025, 2005, Amending Section 2-31 of the City Code of the
so as to Clarify That City Council Can Provide Direction to City Staff or Other Persons
During to Executive Sessions.
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This Ordinance amends Section 2-31 of the City Code pertaining to executive sessions to
clarify that Council can provide direction to City staff or other persons during the course
of an executive session with regard to the matters that are permissible for discussion in
executive session.
B. First Reading of Ordinance No. 036, 2005, Amending Section 2-33(b) of the City Code so
as to Eliminate City Council's Ability to Go off the Record During Attorney -Client
Communications that Occur in Executive Session.
This Ordinance amends Section 2-33 of the City Code so as to eliminate the ability of the
Council to go off the record during an executive session to discuss matters that are subject
to the attorney -client privilege.
BACKGROUND
Item A
Both the City Code and the Colorado Revised Statutes contain provisions pertaining to open
meetings, and both sets of regulations limit the kinds of matters that may be discussed by the City
Council in executive session.
The open meetings provisions of the City Code, which are contained in Section 2-31 of the Code,
are based on the provisions of Article 2, Section 11 of the City Charter. This Charter provision
authorizes executive sessionsfor thefollowingpurposes: discussingpersonnelmatters; consulting
with attorneys representing the City regarding specific legal questions including litigation or
potential litigation; considering water and real property acquisitions and sales; and considering
certain electric utility matters.
Both the State law and the City Code prohibit Council from taking any final legislative action in
executive session, although the state and local regulations differ in that Section 24-6-402.4(e) of the
Colorado Revised Statutes specifically permits local public bodies to determine positions relative
to matters that may be subject to negotiations and to develop strategies for negotiations and to
instruct negotiators, while the provisions of the City Code are less specific in that regard.
Ordinance No. 025, 2005 would amend Section 2-31 of the City Code so as to clarify that the City
Council may give direction to City staff in executive session with regard to matters that are
permissible for executive session discussion, and that providing such direction does not run afoul
of the prohibition against taking final legislative action in executive session.
Item B
Ordinance No. 036, 2005 would amend Section 2-33 of the Code to eliminate the ability ofthe City
Council to go off the record during an executive session to discuss matters that are subject to the
attorney client privilege. At present, Section 2-33, like the companion provisions of the state open
meetings law, requires that executive sessions be recorded and that the recording be preserved for
at least 90 days, so that a person who believes that the Council engaged in substantial discussions
of matters not enumerated in Section 2-31 or that the Council took final legislative action in
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executive session, may apply to the district court for an order authorizing the offending portion of
the executive session discussion to be released to the public. However, both the City Code and the
state law permit the Council to go offthe record in executive session duringportions ofan executive
session that constitute privileged attorney -client communications.
Ordinance No. 036, 2005 would eliminate the Council's ability to go off the record in executive
session during privileged attorney -client communications. This would mean that the substance of
attorney -client communications, like other discussions held in executive session, would be available
for judicial, in camera review if there was a challenge to the propriety of the discussion.
The purpose of the attorney -client privilege is to facilitate candor in the exchange of information
and advice between the attorneys for the City and the officers and employees of the City, so that the
legal advice and recommendations provided to the City can take into account all salient facts and
so that the municipal clients can be fully informed and advised about the potential risks and
consequences ofparticular courses of action. The City Attorney recommends retaining Council's
ability to determine, on a case -by -case basis, whether going off the record for attorney -client
communications is advisable to better ensure the candor and confidentiality of such
communications. "
City Manager Atteberry introduced the agenda item.
City Attorney Roy stated two ordinances relating to Executive Sessions were offered for Council
consideration. He stated the first would clarify that in Executive Sessions it was permissible for
Council to give direction to City staff, and that the second would eliminate the Council's ability to
go off the record during attorney -client communications that occur in Executive Session. He stated
in his opinion the local law relating to Executive Sessions superseded the State law and that he
believed this to be a matter purely of local concern. He stated one of the proposed ordinances would
bring the local law closer to the State law and that the other would make the local law more different
than the State law. He stated both the State and local law prohibited taking formal action or final
legislative action in Executive Session. He stated the State law had a provision indicating that it was
permissible in Executive Session to determine positions relative to matters that may be subject to
negotiation, developing strategy for negotiations and instructing negotiators. He stated the City did
not have any provision along those lines because the purposes of an Executive Session were limited
to those specified in the Charter. He stated the purpose of the first ordinance was to specify that the
Council must stay with the appointed topics (personnel, real property or water rights acquisition or
sale, and legal advice) but that it would be allowed to bring those discussions to closure by providing
direction to City staff. He stated the second ordinance related to discussions during Executive
Session relating to attorney -client communications. He stated the State and local laws were nearly
identical in that both provided that those kinds of discussions in Executive Session need not be tape
recorded in order to ensure that attorney -client communications would remain confidential. He
stated this required the Council when in Executive Session to make a decision regarding whether
or not to go off the record for such discussions. He stated the proposed ordinance would eliminate
the Council's ability to go off the record.
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Councilmember Tharp asked if the two ordinances would be dealt with separately. She stated she
believed that the first ordinance was clearer.
Councilmember Tharp made a motion, seconded by Councilmember Weitkunat, to adopt Ordinance
No. 025, 2005 on First Reading.
Councilmember Tharp stated she wanted to put this on the table to allow the ordinance to be
discussed separately. She stated giving direction to staff, even on issues that were clearly within the
scope of an Executive Session, was "close to voting" and that was not allowed. She asked for
clarification regarding how giving direction to staff was not "voting on the issue." City Attorney
Roy stated the local ordinance prohibited taking final legislative action rather than taking formal
action. He stated "final legislative action" consisted of a motion, a second and a vote. He stated it
would not be difficult to "stop short of that." He stated the State language was offset by other State
language that allowed giving instruction to people in Executive Session. He stated he believed that
it would be a good idea to have similar language in the local ordinance to allow the Council to give
direction to staff during Executive Session. He stated to bring a meaningful discussion to closure
it was necessary for staff to understand the direction. He stated giving direction to staff "stopped
comfortably short" of taking final legislative action.
Councilmember Tharp stated many issues dealt with in Executive Session would eventually come
to the floor for a formal action, while direction to staff might not come to a public discussion. City
Attorney Roy stated the issue was whether it was appropriate in an open government to discuss
matters that may never become public. He stated one example might be discussions of litigation
strategy. He stated as City Attorney he would make recommendations in Executive Session about
the advisability of settling or litigating a case, strengths and weaknesses of the case, potential
consequences or damages and that he would hope to have direction from the Council on how to
handle the case. He stated if Council direction was given publically, even after the fact, that it could
be damaging to the City's financial and legal interests because the way in which litigation was
handled was "extremely sensitive."
Councilmember Tharp stated she had concerns relating to giving direction to staff with regard to
other non -litigation aspects of government. City Manager Atteberry stated another example could
be direction to staff on the top price to be paid for the acquisition of real property. He stated the
appropriation could come back to Council but that the amount the City would have been willing to
pay would not necessarily become public.
Councilmember Tharp stated the action taken would eventually become public. She stated some
other matters may never become public at any point. City Manager Atteberry stated another
example could be in a situation where the City Manager needed to present a personnel matter for
discussion and that this would never become public. City Attorney Roy stated it was important to
note that the local law was much more restrictive than the State law in terms of the kinds of things
that could be discussed in Executive Session. He stated this proposed change did not expand the
categories of things that could be discussed in Executive Session. He stated it would add the ability
to give direction to staff at the conclusion of those discussions.
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Councilmember Kastein asked if the phrase "final legislative action" was in the local or the State
law. City Attorney Roy stated it was in the local law.
Councilmember Kastein asked for clarification that if Council did not make a motion and vote that
it would be stopping short of taking "final legislative action." City Attorney Roy replied in the
affirmative.
Councilmember Kastein asked why the City Attorney took that position. City Attorney Roy stated
under the Charter the Council could act in any of three ways — by Ordinance, Resolution or motion.
He stated all three required a motion, second and vote.
Councilmember Kastein asked if "final legislative action" was defined in the local law as described
by the City Attorney. City Attorney Roy stated it was clear when the Charter and Code were looked
at together.
Councilmember Kastein stated he had always felt comfortable in Executive Sessions with whatever
method was used to give direction. He questioned why those methods had to stop short of actually
voting and asked why a vote would be considered to be "final legislative action" when the matter
had to come before the Council at a public meeting. City Attorney Roy stated there was a possibility
that someone might contend that the City was governed by the State law, which provided that in
Executive Session the Council may not adopt a position.
Councilmember Kastein asked how direction could be given in Executive Session. City Attorney
Roy stated the State law about not adopting a position was offset by another provision in the State
law which provided that the Council could instruct negotiators. He stated the intent was to guard
against the eventuality that someone might argue that the City was governed by State law and that
informal voting was adopting a position. He stated he wanted to clarify the local provision and
include something similar to the State law that would say that giving direction to City staff was not
adopting a position, taking formal action, or taking final legislative action.
Councilmember Kastein asked what would constitute "giving direction." City Attorney Roy stated
the staff would "glean" direction by listening to a discussion among Councilmembers and avoiding
any kind of formal voting.
Councilmember Kastein asked if it would be permitted for each Councilmember to indicate "yes"
or "no." City Attorney Roy stated there were various interpretations about the meaning of the State
law and how it would interact with local law.
Councilmember Kastein stated "giving direction" might be too vague and that it would be helpful
to spell out what that was and what it was not.
Mayor Martinez stated the direction that was given to staff in Executive Session was on existing
policy that had already been decided and discussed in public. City Attorney Roy stated the direction
would be only in the context of those topics that were permissible for Executive Session discussion.
He stated he was suggesting adding language to the Code section as follows: " ... and providing
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direction to City staff or other persons with regard to such matters." He asked if Councilmember
Kastein's suggestion was to define how it would be permissible to give direction.
Councilmember Bertschy stated he felt comfortable with the way opinions were individually
expressed at Executive Sessions to develop consensus or direction to staff. He stated the new
Council would be given guidance by the City Attorney on how Executive Sessions should proceed.
Mayor Martinez stated direction was often given in Executive Session to bring forward an ordinance
or resolution for a public discussion and vote.
Councilmember Weitkunat stated the matters discussed in Executive Session were limited to specific
topics. She stated such matters could not be discussed without giving direction to staff. She stated
such direction would not have the "force of law" but would establish a course of action. She stated
this was not the action taken but the direction to take to come to the resolution of a matter.
Councilmember Tharp stated if direction was given to staff on a matter that would never come to
public action that the Council would be "conducting business" away from the "public eye." She
stated the ordinance would allow the Council to give direction to staff on issues in some cases when
that direction would never be on the public record.
Councilmember Hamrick stated the Council needed to be very restrictive on why it would go into
Executive Sessions. He stated he felt comfortable with providing direction to staff on those specific,
narrow issues that could be discussed in Executive Session. He stated the Council had clarified the
specific criteria that would allow the Council to go into Executive Session. He stated he was
comfortable with what was being proposed by staff.
Councilmember Kastein stated the majority appeared to agree that it was alright to provide direction
in Executive Sessions. He stated he would even support giving direction by way of a "clear cut
vote." He stated the direction given in Executive Session determined the particular path to be taken
toward a particular goal that would eventually become a legislative action before the Council. He
stated he did not want an ordinance to be created that would provide that the Council could continue
to do things as they have always been done. He stated he wanted to be able to define "giving
direction" for the benefit of the next Council.
Mayor Martinez stated every time the Council adjourned into Executive Session the rules and
guidelines were read and that at the end of every Executive Session the Councilmembers were asked
if anyone believed that the discussion had gone outside of the scope of the permissible discussion.
Councilmember Kastein stated he believed that "giving direction" needed to be defined.
Mayor Martinez asked if Councilmember Kastein wanted to add another rule to the list that was read
at every Executive Session.
Councilmember Kastein stated he just wanted a definition of "direction."
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March 1, 2005
Mayor Martinez stated giving "direction" was not making a final decision.
Councilmember Kastein asked who would give the "direction" to staff.
Mayor Martinez stated the Council would arrive at a consensus.
Councilmember Kastein asked how a "consensus" would be determined. He stated he would like
to see spelled out how direction was to be determined i.e. what the limits were on how direction was
determined. City Attorney Roy stated it might be helpful to have some flexibility in how direction
could be given. He stated the language could state that direction was determined through
"individual expressions of opinion, to City staff or other persons."
City Attorney Roy asked if Councilmember Tharp would accept that language as a friendly
amendment.
Councilmembers Tharp and Weitkunat accepted that as a friendly amendment.
Councilmember Tharp stated she did not believe that Executive Session were ever misused and that
she believed that the Council dealt with issues that were allowed by law. She stated she wanted to
make sure that the Council did not make "final government decisions in private." She stated she had
no problem with giving direction in Executive Session when that direction would lead to a final
decision made in public. She stated she had a concern when the direction was on issues that would
not become public.
Councilmember Hamrick stated he would support the motion. He stated he would like to go into
Executive Session only when it was necessary. He stated he would support the motion because
certain items must be held in confidence.
Councilmember Roy stated he appreciated Councilmember Kastein's clarification regarding how
direction was given. He stated it was important that local government was as "transparent" as
possible. He stated he would support the motion.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy and Weitkunat. Nays: Councilmember Tharp.
THE MOTION CARRIED.
City Attorney Roy stated both the State and local law required that there be some record kept of
Executive Sessions even though they were confidential. He stated if someone had reason to believe
that the Council "strayed" from the topics that were permissible for an Executive Session, or took
final legislative action, that person could apply to a court, and the court would have the authority
to make public that portion of the record which would reflect the departure from the topic or the
taking of final legislative action. He stated there was an exception in both the State law and the local
law for attorney -client communications. He stated the issue was whether to keep that exception in
the local law in the same way that it existed in the State law.
565
Councilmember Kastein asked about language in the sixth WHEREAS clause giving the following
reason: "... so that a record will be maintained of such discussions in the event that judicial review
of the discussions is requested by a party who is concerned that the discussion may have been
improper." He stated this was the key for making a change. He asked what the risk would be. City
Attorney Roy stated there was a need to balance "transparency" of government with
"confidentiality" of attorney -client communications, and whether that kind of communication
warrants an extra level of protection. He stated historically the courts had protected the attorney -
client privilege. He stated one of the jobs of an attorney was to point out the potential consequences
of what was said and done. He stated a comment made in "good faith" could result in a substantial
judgment against the individual making the comment, even though the comment was made in an
environment in which the person felt "safe to be candid." He stated there were two purposes for the
confidentiality of attorney -client communications: (1) to keep confidential remarks that were made
in a context other than litigation so that they were not taken out of context of blown out of
proportion in litigation, and (2) so as to create an environment where both attorney and client felt
absolutely confident that what was said would be confidential so that both could be candid.
Councilmember Kastein asked if the intent was to balance the need to safeguard against the Council
straying from the permissible topics by having a record of the Executive Session and the risk of
comments made in the context of the attorney -client communications being used against the City.
City Attorney Roy replied in the affirmative. He stated he was suggesting that the Council stay with
the same balance that was struck by the legislature by not eliminating the ability to go off the record
in all situations.
Mayor Martinez stated the "policing" should be done by all Councilmembers and staff to ensure that
discussions stayed on track. City Attorney Roy stated there was an "anomaly" in the State law. He
stated the State law provided that either a tape recording or written minutes could be kept, and that
if there were written minutes the Mayor must certify that the topic stayed within bounds and the
attorney must certify that the matters that were off the record were exclusively those that were
attorney -client communications. He stated the obligation of certification did not exist with the tape
recorded session. He stated a provision could be added to the Code to require that kind of
certification if that would increase the "comfort level."
Councilmember Tharp made a motion, seconded by Councilmember Hamrick, to adopt Ordinance
No. 036, 2005 on First Reading.
Councilmember Tharp stated she had brought this matter forward because she objected to going off
the record for attorney -client privilege not because she believed that the Council misused it. She
stated the problem was if anyone questioned what was done in an Executive Session that there
would be no way to verify that the Executive Session was done appropriately. She stated the
Judge's responsibility in reviewing a tape was to determine whether the Council's discussions in
Executive Session would fall under attorney -client privilege and that nobody else would get to hear
the tape. She stated it was "reassuring" to have something to refer back to besides a "blank tape."
Councilmember Bertschy stated the Council would have the option of staying on the record and that
the Council chose that option in many instances. He stated in times of serious litigation the Council
.P
March 1, 2005
needed to have an opportunity for the attorney or special counsel to be "completely candid." He
stated there was a need for the ability to go off the record and receive complete, open and candid
advice from legal counsel.
Councilmember Weitkunat stated Council did have the option to stay on the record and that this
ordinance would not give the Council the option to go off the record. She stated the issue was
attorney -client privilege, which was a "sensitive" privilege. She stated she would not support the
motion.
Mayor Martinez stated it was necessary to have trust between the attorney and the client to ensure
candid conversations. He stated anyone could speak up if they felt that there was a "bad Executive
Session that violated the law." He stated he believed that this ordinance was "fixing something that
was not broken."
Councilmember Roy stated he would support the motion. He stated the Council represented the
community and that it was important to work toward the goal of"transparency in government." He
stated he did not believe that the Council abused Executive Sessions. He stated the ability to have
the recorded proceedings available was part of the Council's job.
Councilmember Kastein stated he did not believe that "sensitive conversations" should be made
"transparent" for the public. He asked if recordings of Executive Sessions existed solely so that a
Judge could determine if the Council strayed from the topic. City Attorney Roy replied in the
affirmative and stated the other reason was to allow the Judge to determine if the Council took final
legislative action in Executive Session.
Councilmember Kastein asked if the tapes would otherwise become public. City Attorney Roy
replied in the negative.
Councilmember Kastein stated this would not make the discussion transparent except to a judge.
City Attorney Roy replied in the affirmative and stated the Judge would have the ability to release
that portion of the tape relating to the portion of the Executive Session for which the Judge believed
the Council "strayed" from the permissible topic.
Mayor Martinez stated this would be "cut and paste" and taking part of the conversation out of
context.
Councilmember Kastein asked if the City Attorney had a concern about a portion of the tape being
made public and possibly the content being used against the City. City Attorney Roy stated was part
of his concern.
Councilmember Hamrick stated he would support the motion. He asked how long the tapes were
retained. City Attorney Roy replied that the tapes were kept for 90 days.
Councilmember Hamrick asked if someone would have a limited time frame to take the matter to
court. City Attorney Roy replied in the affirmative.
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March 1, 2005
Councilmember Hamrick stated the Council did not intentionally go into Executive Session to
violate any law and that the Council was held to a "higher standard." He stated taping the attorney -
client communications told the public that the Council had "nothing to hide." He stated he did not
see a risk in tape recording the conversations.
Councilmember Weitkunat stated when the Council was sued the Councilmembers were sued as
individuals rather than the people the Councilmembers represented. She stated she viewed it as her
privilege as a Councilmember to receive privileged attorney -client communications in Executive
Session. She stated she did not believe that such communications needed to be made public.
Councilmember Tharp stated she would support the motion. She stated all Executive Sessions were
taped and that the only time a tape was not available was when the City Attorney advised the
Council that a portion of the discussion was attorney -client privileged material. She stated in those
instances there would be no record of what was said. She stated taping such communications was
a safeguard and that she trusted the Council not to do anything that should not be done in Executive
Session. She stated she trusted the Judge to review the material and say that the Council had not
done anything that was not legal. She stated if there was no tape there would be no way to clarify
what had been done.
Councilmember Kastein stated he would not support the motion. He stated when the Council was
in Executive Session that recording attorney -client communications could put the City at risk if a
Judge decided to release a portion of the recording for public inspection.
Mayor Martinez stated he would not support the motion because attorney -client communications
should be "frank and honest" rather than guarded.
The vote on the motion was as follows: Yeas: Councilmembers Hamrick, Roy and Tharp. Nays:
Councilmembers Bertschy, Kastein, Martinez and Weitkunat.
THE MOTION FAILED.
Ordinance No. 037, 2005,
Repealing and Reenacting Article II of Chapter 10 of the
City Code Regarding Flood Hazard Areas. Adopted on First Readine
The following is staff's memorandum on this item.
"FINANCIAL IMPACT
Adoption of the Ordinance will have no impact on the City Budget, but will decrease the discount
on premiums paid by citizens for the 356 flood insurance policies in the city by 5% or community
wide by $9,256.
March 1, 2005
EXECUTIVE SUMMARY
The proposed ordinance modifies the City Code to reflect changes to the floodplain regulations that
balance risk with regulation for floodplain citywide, excluding the Poudre River floodplain.
Regulations for the floodway (areas of the highest risk) are more restrictive than for areas in the
floodplain fringe and moderate risk areas. Regulations are more restrictive for new development
and less restrictive for existing development. Residential development has more restrictive
regulation than non-residential development. Areas of the lowest flood hazard, moderate risk
floodplain, are not subject to any restrictions.
Other changes to the Code include the incorporation of restrictions for erosion bufferzones, which
have previously been addressed in stormwater master plans. Revisions were also made to bring the
Code into compliance with current FEMA criteria. To make the City Code more user friendly and
easier to understand, the entire Flood Hazard article (Article II) was rewritten and more details
were added to clarify specific types of development activities and the applicable floodplain
requirements. The section regarding the Poudre River floodplain has no policy changes but was
changed to be in the same format.
Public outreach was completed during the formulation of the floodplain regulation changes which
included mailings, open houses, boards and commissions review and newspaper articles. City
Council discussed this item at its January 13, 2004, and February 8, 2005, study sessions.
BACKGROUND
The City of Fort Collin has participated in the National Flood Insurance Program since 1979,
which enables property owners to purchase flood insurance through this federal program. Part of
that participation includes the City's enforcement of floodplain regulations on existing and new
development in the various floodplain across the city. Undeveloped properties located in a
floodplain are allowed to develop as long as they comply with thefloodplain regulation. The Fort
Collins Utilities is charged with the administration of these regulations. The purpose of the
enforcement of the regulations is to reduce the potential for loss of life and damage to properties
located in or near these floodplain. Periodically the City has revised or updated these floodplain
regulations.
Floodplain regulations were first adopted in the city in the mid 1970's for the Poudre River. In
1979 the City of Fort Collins entered the National Flood Insurance Program based on updated
floodplain regulationsfor the Poudre River, and newly adopted floodplain regulations for the Spring
Creek, and Dry Creek basins. Between 1979 and 2001 enforcement offloodplain regulations was
expanded to other basins within the City as the master plans for those basin were adopted.
FEMA basin floodplain have now been established in the Poudre River, Spring Creek, Dry Creek,
Cooper Slough and Boxelder Creek basins. In the FEMA basins there are minimum standards set
by FEMA that must be met in order to participate in the National Flood Insurance Program.
However, FEMA encourages and supports communities that go beyond the minimum FEMA
regulations to add new or stricter requirements in both FEMA and locally designated floodplain.
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March 1. 2005
Several of the floodplains in the city have not been submitted to or approved by FEMA. In these
floodplains the City has the option to establish floodplain criteria less restrictive than the FEMA
minimum. City basin floodplains are located in the Old Town, West Vine, McClellands/Mail Creek,
Canal Importation, Foothills and Fossil Creek basins.
After the 1997 flood, questions were raised concerning the adequacy of the City's floodplain
regulations. City Council directed City staff to review the floodplains across the city and make
recommendations on changes. In 2000, the floodplain regulations for the Poudre River were
reviewed and changes to the regulations were adopted. Regulations for the other basins were to be
reviewed as the City remapped the 100 yearfloodplains during the development of the basin master
plans using the updated rainfall standard.
In 2001, the Canal Importation Basin Master Plan and floodplain were adopted by City Council.
Floodplain regulations were initially adopted for both existing and new development. However,
several months later, City Council suspended regulations for platted and existing development on
an interim basis until the citywide review could be completed. However, City Council retained the
requirement that new development and critical facilities in that basin continue to comply with the
floodplain regulations as contained in City Code. At that time, staff was instructed to review the
City's floodplain regulations for all basins other than the Poudre River with the goal of balancing
risk with regulation.
In September of 2001, the Utilities General Manager was given the authority to remap the
floodplains using the higher rainfall standard. The new mapping was completed in 2002 and 2003.
On January 13, 2004, City Council held a study session on the proposed floodplain regulation
revisions. Staff received the following input:
• Council agreed with staffs approach of balancing risk with regulation.
• Most Councilmembers did not have comments on specific regulations. There was one
concern about allowing critical facilities in the moderate risk zone, i.e. 500-year
floodplain or 100 year sheet flow areas with an average depth of I foot.
• There was general support for making the changes although they will change the
community flood insurance rating from a class 4 CRS rating to a class 5.
• Two members of the Council expressed concern about proposed regulations less strict
than FEMA minimums, while others felt it was appropriate.
During that discussion, City Council asked for the following additional information:
• What impact do floodplain regulations have on property values?
The City's Real Estate Services Department performed an audit of home sales in four areas
of the city. That audit compared home sales outside of the floodplain with comparable
homes sold in the floodplain. The results of this analysis found that there was no
discernable difference in sale price compared to those in the floodplain and those outside
thefloodplain. However, in some cases those in the floodplain did have a higher sales price
than those outside of the floodplain.
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5FIR 7i NAKIIIJI
• What is the probability of a 500-year event over the life of a 30-year mortgage?
There is a 5.8% chance that there will be a 500 year food over a 30 year mortgage on a
home. There is a 26% chance of a 100 year event over that same period.
• Provide an example of a typical 500-year floodplain map.
A map showing an example of a 500-year foodplain was presented at the February 8, 2005
study session.
On February 8, 2005, City Council held a study session on the proposed foodplain regulation
revisions. The following key discussion points were provided by Council:
Council still agreed with staffs approach of balancing risk with regulation.
There were no changes to specific regulations. Two Council members had concern with
allowing certain types (gas stations, schools and health care facilities) of critical
facilities in the moderate riskfloodplain. Another Council member supported the staff
recommendation and indicated a willingness to consider more restrictive regulations on
some types of critical facilities and less restrictive regulations on others.
There was general consensus that it is acceptable to change from a class 4 CRS rating
to a class 5, however, some expressed concern that the critical facility regulation in the
moderate risk foodplain would cause the class to change.
During that discussion, City Council asked for additional information in the following areas:
• Number of critical facilities in the moderate riskfoodplain.
Schools — 3
A Gas Stations — 2
Utility Facility —1
Emergency Response Facility —1 (City Hall )
Hazardous Material Storage —1
An evaluation of the risk to certain types of critical facilities
Flows in the moderate riskfloodplains are the shallowest and slowest compared
to the other floodplains. These types of flows can generally be tt•aversed by
vehicles and pedestrians and are not likely to cause structural damage or large
amounts of floating debris. See the attached February 15, 2005 staff
memorandum to Council.
Floodplain Maps and Property Statistics
A map ofthe revised citywide floodplains is attached. The floodplains on this map are the maximum
extent of the existing (FEMA) mapping and the new City mapping. The 100 year floodways (areas
ofgreatest risk with high depths and velocities) are shown in dark blue. The 100 year flood fringe
is shown in light blue. The moderate risk areas, shown in green, are either the existing FEMA 500-
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March 1, 2005
year floodplain in the Poudre River basin or areas of sheet flow in the 100-year floodplain in the
other basins. The 500-year floodplain will not be mapped in basins other than the Poudre River.
Citywide statistics for the 100-year floodplain are shown in the following table.
Flood lain Statistics
Floodway
Flood Fringe
Moderate Risk
Area acres
1900
1200
500
Number of
Structures
700
1500
900
Revised mapping has been submitted to FEMA for the basins that have FEMA basin floodplain,
except for Dry Creek, which will be submitted after the completion of the Dry Creek Flood
Control Project. This will result in only one regulatory mapper basin. Floodplain maps are
also revised after each capital improvement project to reflect areas that are no longer in a
mapped floodplain. Since 1997, over 900 structures were removed from the floodplain in the
Old Town basin due to the construction of stormwater capital projects.
Proposed Floodplain Regulations
As staff began review of the floodplain regulations, the purpose of floodplain regulations as
contained in Chapter 10 of the City Code was reviewed and paraphrased into the following
statement ofpurpose.
"Strive to promote public safety, raise awareness offlooding risks, and reduce public and
private losses from floods through enforcement offloodplain criteria that balance risk with
regulation. "
To carry out this purpose, three underlying themes were identified:
Floodwav vs. Flood Fringe
Map a floodway (areas of greatest depths and highest velocity) in all of the City's
floodplain where practical. This allows the higher risk areas to be distinguished from the
floodplain areas of lower risk. Staff is recommending stricter regulation in the higher risk
floodway areas and less restrictive regulations in the remaining 100-year floodplain.
2. New Development vs. Existing Development
It is important not to create future problems that will place more people at risk and require
those in the future to spend moneyfixing new problems. On the other hand, there are many
existing homes and businesses currently in floodplain where owners have normal
expectations of being able to remodel, repair and add to their structures. Staff is
recommending stricter regulations for new development and less strict regulation for
existing structures.
3. Residential Development vs. Non -Residential Development
From a health and human safety perspective, residential structures represent a higher risk
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Rip MONANOON
than commercial structures. Staff is recommending stricter regulations for residential
development and less strict regulations for commercial development.
Compared to the City's current regulations, some of the proposed regulations are more restrictive,
while others are less restrictive. The attachedfloodplain regulation matrix identifies the proposed
regulation changes..It is color coded to show which changes are more restrictive, less restrictive,
or remain the same when compared to existing regulations. This matrix also compares the proposed
regulations to the FEMA minimum requirements. To help illustrate these regulations with less
complexity, the attached "Proposed Floodplain Regulations Quick Guide " was prepared.
Key Changes to Floodway Areas
More Restrictive than Current Regulations
• New residential structures would not be allowed. Currently they are allowed if they
show no -rise.
• New residential additions would not be allowed. Currently they are allowed ifthey show
no -rise.
• Basements in non-residential new structures and additions would not be allowed.
Currently they are allowed iffloodproofed.
Less Restrictive than Current Regulations
Substantial Improvement time period changed from the life of the structure to 1-year.
Freeboard requirement changed from 18-inches to 6-inches on substantial improvements
and non-residential additions.
Utilities General Manager can waive floodplain regulations in a City basin foodplain
if a capital project is under construction. Currently, completion of the project is
required.
Sub -grade crawl spaces would be allowed per new FEMA guidelines. Currently sub -
grade crawl spaces are not allowed.
Key Changes to Floodplain Fringe Areas
More Restrictive than Current Regulations
• New mobile homes or modular offices would not be allowed except in existing parks or
as a replacement for an existing mobile home or modular office. Currently the
development of new mobile home and modular offices parks are allowed.
Less Restrictive than Current Regulations
Substantial Improvement time period changed from the life of the structure to 1-year.
Improvements on a floor above the food elevation would not count toward the
substantial improvement amount (50% of current market value) for structures in a City
basin floodplain. Currently all improvements in the structure count toward the
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March 1, 2005
substantial improvement amount.
Freeboard requirement would be changed from 18-inches to 6-inches on substantial
improvements and additions.
Utilities General Manager would be able to waivefloodplain regulations in a City basin
floodplain if a capital project is under construction. Currently, completion of the project
is required.
Sub -grade crawl spaces would be allowed per new FEMA guidelines. Currently sub -
grade crawl spaces are not allowed.
Key Changes to Moderate Risk Floodplain Areas
Less Restrictive than Current Regulations
Allow new critical facilities in the 500-year floodplain and in the 100-year sheet flow
areas of less than ]-foot. Currently new critical facilities are not allowed in the
moderate risk areas.
• New structures or additions in the 100 year sheet flow areas do not have to be elevated
or floodproofed. Currently they are required to be protected.
Code Language Changes in Erosion Buffer Zones
Erosion bufferzones, identified in the Stormwater Master Plan, are areas along certain streams that
need regulation due to the tendency of the stream to change its alignment. Previously requirements
for erosion buffer zones were administered with the basin master plan. To consolidate like
regulations into a common area, the regulations for erosion buffer zones are being added to the
floodplain provisions ofArticle IT The majority oferosion buffer zones are along Fossil Creek and
Boxelder Creek.
Other Changes
There are some minor "housekeeping" items that are included in the proposed code. These items
are needed to make City Code to be compatible with current FEMA terminology and interpretations.
To make the City Code more user friendly and easier to understand, Article Hof Chapter 10 of the
City Code was rewritten and more language was added to clarify specific types of development
activities in the floodplain and their applicable floodplain requirements.
The Poudre River floodplain regulations were rewritten in order to provide a consistent format and
make the Code easier to understand and use. There are no policy or regulatory changes to the
provisions of the Poudre River floodplain regulations.
Proposed Regulations below FEMA Minimums
In the past, the City basin floodplains have been regulated the same as the FEMA basin floodplains
with some criteria above the FEMA minimum. However, in the proposed regulations for the City
basin floodplains, two of the criteria are less restrictive than the FEMA minimum. These are:
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ul�1017fMANOVA
Improvements on a floor above the flood elevation would not count toward the
substantial improvement amount (50% of current market value).
2. The Utilities General Manager would be able to waive floodplain regulations once a
stormwater capital project is under construction that will remove the structure from the
floodplain.
Effectively, this means that City basin floodplain would be regulated at a lower level than FEMA
floodplain on the above two criteria.
Community Rating System and Flood Insurance Considerations
Fort Collins currently has one ofthe highest rated stormwater managementprograms in the country
based on the FEMA Community Rating System (CRS). The CRS is a voluntary incentive program
that encourages communities to go beyond FEMA minimum requirements for floodplain
management. Based on a rating of numerous stormwater management activities (public outreach,
higher regulatory standards, drainage system maintenance, flood warning, etc.) residents and
businesses of a community receive a discount on their flood insurance premiums. Fort Collins
currently has a Class 4 rating (on a scale of I to 10 with I being the best) which results in a 30%
discount on flood insurance premiums.
All structures in Fort Collins are eligible for flood insurance regardless of whether they are located
in a floodplain or not. Lenders must require flood insurance for any structure in a FEMA basin
floodplain. Lenders may require flood insurance for structures in City basin floodplain or areas
not even mapped in a floodplain, although this is not a common practice. The cost of flood
insurance depends on many variables including amount ofcoverage, deductibles, type ofstructure,
and how high the structure is elevated above the flood level.
As of November 2004, there are 356flood insurance policies in Fort Collins. Of the 356 policies,
72%are residential and 28%are non-residential. Changes in regulations asproposed would result
in Fort Collins movingfrom Class 4 to Class 5. This will result in the City's discount rate dropping
to 25%. The impact of this change is shown in the following table.
Impact of CRS Class Change on Annual Flood Insurance Premiums
CRS Class
Average Annual
Premium Before
Discount
Percent
Discount
Average Annual
Premium After
Discount
Community Wide
Annual Premium
Cost
5 (proposed)
548
25%
407
$144,892
4 current
548
30%
381
$135,636
Difference
5%
26
$9,256
Fort Collin obtained the Class 4 rating in 2000, having had a Class 6 rating since 1995. As of
October 2004, there were 1,006 communities nationwide participating in the CRS program. The
following graph shows the distribution of communities by CRS class:
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National Flood Insurance Program
CRS Communities by Class
500
450
407
d
400 -
350 - 321
1,006 Communites
E
300 ;
66% of NFIP Polices
u250
196
200
c
4)150
a
100
53
c
50
26 2 1
0
Wsa
_
Class 9
Class 8 Class 7 Class 6 Class 5 Class 4 Class 2
The City recently received a $2.7 million Pre -Disaster Mitigation (PDM) grant from FEMA for
capital projects on Spring Creek. Although our CRS rating was not used as a rating factor in this
application, staffhas learned a community's CRS rating will be used as a factor in evaluatingfuture
PDMgrant applications. How much weight is given the CRS rating and effect of the proposed CRS
class change on future grant applications is unknown.
There are two specific regulations staff is proposing to become less restrictive that will effectively
result in Fort Collins moving to a Class 5. If Council wants to maintain the Class 4 rating, the
following regulations would have to be adopted in lieu of the staff recommendation:
• allow no new critical facilities in the moderate risk areas, and
• require the time period for calculation of substantial improvement be cumulative for 10
years (instead of I year as proposed) in the FEMA foodplains.
Public Outreach
The process of informingproperty owners in the City's 12 stormwater basins of upcoming changes
to both the master plan and floodplain regulations began in early 2002 and continued until late
2003. A variety ofcommunication tools such as customer mailings, web pages, press releases and
media interviews, public meetings and open houses, and outreach to both internal and external
groups potentially affected were used.
In 2002, customers most affected byfloodplain boundaries and proposed regulations were identified
as the primaryfocus of initial outreach. Because a significant number of those within the mapped
foodplains are Larimer County residents, City and County staff collaborated on public outreach.
These customers received a packet that included comprehensive information about:
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March 1, 2005
• foodplain mapping,
• the review process for foodplain regulations, and
• the impacts on property mapped within the foodplain.
Each property owner/renter also received:
an individualized foodplain map showing their property relative to the foodplain,
a food history for his or her basin, and
property protection information.
Eight public open houses were held to provide an opportunityfor customers and staff to discuss the
information included in the mailings as well as the master planning process. Customers received
mailed invitations and open houses were advertised in the Fort Collins Coloradoan and North Forty
News. At the same time, web pages were developed on the Utilities Web site to provide additional
information. Over 4, 000 packets were mailed, and 250 people attended the 8 open houses held
during the year.
In 2003, public outreach was expanded to include all property owners and renters in the City's
stormwater drainage basins, not just those within the mapped floodplains. At a kickoffopen house
held in February, property owners and renters were invited to learn more about the City's
stormwater drainage basin, foodplains and regulations, safety and food protections, and the
regional weather patterns that can result in flash flooding.
Following the kickoff, nine additional public open houses were held. Information presented at the
open houses consisted of basin -specific information as well as information about the citywide
planning process, including:
• flooding histories for each basin,
• maps showing identified basin problems,
• maps showing proposed solutions,
• proposedfoodplain regulations,
• stormwater project funding, and
• the process for adoption of master planning and foodplain regulations.
Over 62,000 pieces of mail were sent, including informational packets, basin -wide kickoff
invitations, open house invitations and letters to 24 community organization. Publicityfor the
outreach campaign included media releases and briefings, and advertising in local media.
The nine open houses were attended by 470 people. Of the 24 community organizations contacted,
seven asked for presentations or more information.
Presentations were made to six City boards and commissions, including the Water Board, the
Natural Resources Advisory Board, the Planning and Zoning Board, the Affordable Housing Board,
Landmark Preservation Board and Parks and Recreation Board. The Water Board and the
Planning and Zoning Board recommend adoption of the recommended changes. The consensus of
the Affordable Housing Board was that the approach was reasonable and agreed with the proposed
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changes. The Natural Resources Advisory Board, the Parks and Recreation Board and the
Landmark Preservation Commission elected not to provide a formal recommendation. Their
comments were included in the summary of comments however.
Comment forms were available at the open houses and on the Utilities Web site. Thirty-three
comment forms were submitted. Although most ofthose who attended open houses did not comment
formally on either the proposed masterplan orfloodplain regulations, almost everyone got a chance
to express their views to staff.
Comments received on floodplain issues can generally be summarized as follows:
• questions about the rainfall standard, never seen that much water, even in 1997,
• agreed with the themes used to balance risk with regulation,
• questions about the accuracy of the mapping, offered data for review,
• regulations have a financial impact on property owners,
• regulations are too strict,
• regulations are not strict enough,
• would like different regulations in each basin,
• properties in floodplains pay for flood insurance in addition to stormwater rates, and
• they benefitted from remapping and would like the City to submit to FEMA as soon as
possible. "
City Manager Atteberry introduced the agenda item.
Jim Hibbard, Utility Services, stated staff was presenting recommendations relating to revisions to
floodplain regulations for all floodplains within the City, with the exception of the Poudre River.
He stated a floodplain regulation review was requested by City Council in 2001 when the
floodplains were growing larger due to the increase in the rainfall standard. He stated the proposed
revisions were reviewed with Council at study sessions in 2004 and 2005 and that a total re -write
of Chapter 10 of the Code was being done. He presented visual information regarding the floodway
area, the flood fringe, the 100-year floodplain and the moderate risk zone with sheet flow of depths
less than one foot. He stated there were 1,900 acres of property and 700 structures in the floodway,
1,200 acres of land and 1,500 structures in the flood fringe, and 500 acres and 900 structures in the
moderate risk zone. He stated the number of structures in the floodplain was continually revised
downward as capital improvements were finished. He stated the goal was to arrive at a balance
between the level of risk and the level of regulation. He stated the philosophy was to review the
regulations to allow more restrictive regulations in the floodway (the highest risk zone) and less
restrictive regulations in the flood fringe; more restrictive for new development and less restrictive
for existing structures; and more restrictive for residential and less restrictive for nonresidential. He
stated staff was proposing three regulations that would be more restrictive: no new residential
buildings or additions in the floodway, no new mobile home parks in the flood fringe, and no new
basements on nonresidential buildings in the floodway. He stated four general requirements were
being recommended to be less restrictive: to reduce the freeboard for existing structures, reduce the
requirements for substantial improvements, allow the General Manager to waive regulations in
certain situations, and remove the prohibition against critical facilities in the moderate risk zone.
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He stated language would be added to the Code relating to erosion buffer limits. He stated a net
result of the changes would be to reduce the community rating system classification from Class 4
to Class 5, which would mean that customers who had flood insurance would enjoy a 25% discount
on their flood insurance premiums. He stated there had been substantial public outreach over a
period of two years, that six boards and commissions had heard presentations, and that formal
recommendations had been received from the Water Board and the Planning and Zoning Board in
favor of adoption of the staff recommendation. He stated at the previous Study Session there
appeared to be some interest in further information on the moderate risk areas and eliminating the
prohibition against critical facilities. He stated in the moderate risk areas the water depths and
velocities would be low (one foot or less in depth). He stated because of that the risk of structural
damage would be low and the risk of hazardous material spill would be very low. He stated Poudre
Fire Authority requirements for underground and aboveground storage tanks made it unlikely that
in a 100-year storm any gasoline or hazardous material would escape from a filling station,
especially in the moderate risk area. He stated the risk of loss of life would be small because water
depths and velocities would be such that vehicles could drive through or people could walk through.
He stated staff believed that it would be acceptable to eliminate the prohibition against critical
facilities in the moderate risk zone because even during a 100-year flood there would be mitigating
circumstances that would make the overall risk very small.
Councilmember Roy stated he would like more information on the dangers for filling stations and
hazardous waste that might be under the sheet of water. Hibbard stated the Poudre Fire Authority's
regulations for filling stations required placement of vents at least 12 feet in the air, O-ring
protection of fill points, and overfill protection devices to keep any gasoline from coming out. He
stated it would be unlikely that any submerged gasoline product could escape from a filling station.
Ron Gonzales, Poudre Fire Authority Assistant Fire Marshal, stated PFA supervised the installation
and removal of every fuel tank within the jurisdiction. He presented visual information showing an
illustration of the mechanics of an underground fuel storage tank's vapor recovery, venting and fuel
lines.
Councilmember Roy asked if these systems worked in every case during the Spring Creek flood.
Gonzales replied in the affirmative.
Councilmember Kastein made a motion, seconded by Councilmember Tharp, to adopt Ordinance
No. 037, 2005 on First Reading.
Councilmember Kastein commented on the good work by the staff and the apparent consensus on
the issue.
Councilmember Tharp stated this matter had been discussed thoroughly at the Study Session and
that all of the questions had been answered.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED.
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Ordinance No. 032, 2005,
Adding Restitution Requirements to Section 1-15 of the City Code Relating to the General
Penalty for City Code Violations and Traffic Infractions, Adopted on First Reading
The following is staff's memorandum on this item.
"EXECUTIVE SUMMARY
This Ordinance clarifies when restitution can be ordered as a condition ofsentencingfor violations
of the Municipal Code.
BACKGROUND
This proposed ordinance will clarify when the Municipal Judge can and should order restitution as
part of sentencing when persons are convicted of misdemeanor Code violations and traffic
infractions. Currently, there are no restitution guidelines, and defendants and victims should know
when restitution can reasonably be expected through Municipal Court.
Given the staffing requirements for effective enforcement of the payment of restitution, the City is
unable to efficiently enforce restitution in traffic matters. The state criminal justice system has a
more effective method of requiring restitution and enforcing payment of the restitution, and is
therefore a more appropriate forum for collecting restitution in those kinds of cases. As to non -
traffic misdemeanor or Code offenses, staff recommends that restitution be ordered for the victim,
but only as to direct, out-of-pocket costs.
The City itself can incur substantial costs as a result of violations of the Code and staff believes
individuals found to be violating the Code should be responsible for any extraordinary monetary
costs incurred as a result of such violations. This is especially true where special expertise is
required to deal with a violation, or when extraordinary or non-traditional methods of enforcement
are required. "
City Manager Atteberry introduced the agenda item.
City Attorney Roy stated this was a "restitution" ordinance with three pieces. He stated the nuisance
gathering ordinance allowed for the recovery of costs by the City from persons hosting a gathering
that turned into unruly behavior on adjacent properties or a riot. He stated he had received direction
to bring forward to Council an ordinance that would allow the recovery of costs from the partygoers
as well as the host in that kind of situation. He stated the ordinance would provide that any person
convicted of violating certain provisions of the Code dealing with nuisance violations and
miscellaneous offenses would have to pay restitution. He stated the other provisions of the
ordinance related to the circumstances under which third parties other than the City could recover
restitution and that one paragraph dealt with traffic offenses and specified that restitution through
Municipal Court would not be available to victims of traffic infractions or misdemeanors and would
be left to the civil courts. He stated the third part of the ordinance also dealt with restitution to
victims of non -traffic offenses such as assaults, criminal mischief, etc. He stated restitution could
March 1, 2005
be recovered in those situations only for direct, out-of-pocket costs incurred by the victim
Councilmember Weitkunat asked for clarification regarding the provisions relating to traffic
infractions. City Attorney Roy stated restitution would not be recoverable through the Municipal
Court and that the victim would need to rely upon insurance or the civil courts.
Councilmember Weitkunat asked why that provision would need to be included in the Code. City
Attorney Roy stated there were two separate kinds of traffic offenses (traffic infractions and traffic
misdemeanors). He stated there would be no restitution for any kind of a traffic offense.
Councilmember Weitkunat asked about the language relating to the General Penalty. City Attorney
Roy stated part of the Code was not being changed and explained the discretionary imposition of
fines or jail sentence.
Councilmember Tharp asked if it was within the prerogative of the Council to tell the judge to do
something as opposed to simply allowing the Judge to do something. City Attorney Roy replied in
the affirmative. He stated he had received direction from the Leadership Team to make it mandatory
for restitution to be awarded in riot situations and that the Council would have the authority to
require the judge to impose costs. He stated the Judge would have the discretion regarding how to
apportion the costs when there were multiple defendants involved in the same criminal episode.
Councilmember Bertschy made a motion, seconded by Councilmember Hamrick, to adopt Ordinance
No. 032, 2005 on First Reading.
Councilmember Kastein stated the City Attorney had brought this ordinance to Council as directed
and that there had been little time to review the proposed ordinance. City Attorney Roy stated the
only matter that had not had much discussion was the issue of no restitution for traffic offenses.
Councilmember Bertschy stated this ordinance was timely because of the possibility of events during
the spring. He stated this "would send a message as well as a bill" for the expenses that would be
incurred by the extraordinary work that would have to be done by the City to deal with such events.
Mayor Martinez agreed with Councilmember Bertschy's comments.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED.
Other Business
Councilmember Tharp stated she wanted to know if Councilmembers would consider an extension
of the Enterprise Zone. She stated the Housing Authority could benefit from such an extension. She
stated such an extension would require adoption of a Resolution that would be forwarded to the
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County and eventually to the State. She stated this would give the Housing Authority some
flexibility and tax credit benefit and could perhaps be used by other businesses.
Councilmembers Bertschy and Weitkunat and Mayor Martinez stated they were interested in having
such a Resolution brought forward.
Councilmember Tharp asked for staff information relating to the impact of chronic wasting disease
on the water supply.
Councilmember Roy stated Dennis Hogue from the North College Business Association recently
contacted Councilmembers for direction on the Urban Renewal Authority. He asked for an update
on the matter. City Manager Atteberry stated Mr. Hogue was requesting that the Urban Renewal
Authority and setting up the citizen committee be a higher priority for the staff. He stated he had
responded to Mr. Hogue reiterating that staff and the Council viewed this as a high priority. He
stated he would request that staff prepare information indicating milestones.
Executive Session Authorized
Councilmember Bertschy made a motion, seconded by Councilmember Roy, to adjourn into
Executive Session under Section 2-31(1)(3) of the City Code for the purpose of considering a
possible real property acquisition by the City. The vote on the motion was as follows: Yeas:
Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED.
(Secretary's Note: The Council adjourned into Executive Session at 9:35 p.m. and reconvened
following the Executive Session at 10:10 p.m.)
Adjournment
Councilmember Bertschy made a motion, seconded by Councilmember Roy, to adjourn the meeting
to 6:00 p.m. on March 8, 2005 for the Council to consider any business that come before the
Council. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: Councilmember Hamrick.
THE MOTION CARRIED.
The meeting adjourned at 10:10 p.m.
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