HomeMy WebLinkAboutMINUTES-11/29/2005-AdjournedNovember 29, 2005
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Adjourned Meeting - 6:00 p.m.
An adjourned of the Council of the City of Fort Collins was held on Tuesday, November 29, 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: Brown, Hutchinson, Kastein, Manvel, Ohison, Roy and
Weitkunat.
Staff Members Present: Atteberry, Krajicek, Roy.
Citizen Participation
Agenda Review
City Manager Atteberry stated item #18 Resolution 2005-12 7 Adopting the City's 1006Legislative
Policy Agenda was being pulled from the Consent Calendar for separate discussion.
CONSENT CALENDAR
6. First Readins of Ordinance No.159, 2005, Appropriating Prior Year Reserves in the General
Employees' Retirement Fund.
The City Council created the Plan in 1971 to provide a retirement benefit in addition to the
Social Security system. Oversight is provided by a six -member committee, five of whom are
appointed by Council, the other being the Financial Officer.
The single -sum benefit, approved by City Council in 1998, is designed to be actuarially
neutral to the Plan. When an employee elects to receive a lump sum amount from the Plan,
the liability of providing a future pension benefit to the employee is removed from the Plan.
Although actuarially neutral, voluntary elections of single sum payments reduce the
uncertainty regarding the number of employees for whom the Plan must provide an income
over an unknown period of years. From that standpoint, lump sum payments are considered
financially favorable.
First Readine of Ordinance 160, 2005 Authorizing the Lease of Portions of Soapstone Prairie
Natural Area to Folsom Grazine Association.
This Ordinance authorizes a grazing lease on approximately 16,450 acres (12,588 Soapstone,
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3,862 Colorado Lease Lands) located within the Soapstone Prairie Natural Area to the
Folsom Grazing Association beginning on January 1, 2006 and ending December 31, 2008.
The lease was awarded through a competitive request for proposal process.
The duration of this lease corresponds to the opening of Soapstone Prairie to the public in
2009. The interim lease was designed to continue grazing as a habitat management tool
while other portions of the Soapstone Management Plan were developed. This ensures that
any future grazing plans will be developed to minimize conflicts with recreation use and
other management objectives of the Natural Area.
First Readine of Ordinance No. 161, 2005, Making Various Amendments to the City of Fort
Collins Land Use Code.
Staff has identified a variety of proposed changes, additions and clarifications in the Fall
biannual update of the Land Use Code. On November 17, 2005, the Planning and Zoning
Board considered the proposed changes and voted 5 — 0 to recommend approval of the
proposed changes to City Council with one exception. On the item relating to requiring a
higher level of connectivity in the Urban Estate Zone (Item 704), the Board voted 4 — 1 to
approve the proposed change.
9. First Reading of Ordinance No. 162, 2005. Amending Section 2-575 of the City Code
Relating to Councilmember Comnensation.
Article II, Section 3 of the City Charter provides that the compensation of Councilmembers
shall be adjusted annually for inflation in accordance with the Denver/Boulder Consumer
Price Index. In 2004, Councilmembers were compensated $595 per month, and the Mayor
received $895 per month. Council compensation remained the same for 2005.
This Ordinance amends Section 2-575 of the City Code to set the 2006 compensation of
Councilmembers at $606 and the compensation of the Mayor at $912, as required by the City
Charter.
10. First Reading of Ordinance No. 163, 2005, Amending Section 25-75 of the City Code so as
to Extend Certain Portions of the City's Sales and Use Tax in Accordance with Three Voter -
Approved Ballot Measures.
Fort Collins' voters have approved the renewal of three one -quarter cent sales and use taxes
to fund high priority capital needs in the community. The three taxes were previously used
to fund three packages of capital projects in the Building Community Choices capital plan.
All three current taxes are set to expire on December 31, 2005. The ordinance will
implement the tax extensions by amending the sales and use tax code to reflect the provisions
of the voter actions.
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11. First Reading of Ordinance No. 164, 2005, An-ropriating Prior Year Reserves in the Self
Insurance Fund to Cover the Annual Actuarial Report Adjustment.
The City's Self -Insurance fund pays for liability (auto, public officials, general liability),
property (damage to buildings, flood etc.) and worker compensation claims and related
expenses. An actuarial report is provided annually in March to project reserves which are
needed for claims which have been filed but not settled and claims that have not been filed
or reported to the City. These are known as claims incurred but not reported, or "IBNR"
claims.
Claims are affected by timing. Once an incident has occurred, claimants have 180 days after
the incident to file a claim with the City for a State covered tort and two years to file claims
covered by Federal law.
The reserves necessary to cover claims that have not been reported or filed (IBNR claims)
and claims which have not yet been settled, fluctuates annually. For example, in 2002 the
reserve/IBNR increased $156,000, in 2003 it increased $1,300,000, and in 2004 it decreased
$1,400,000. It is estimated that the amount of reserves will increase by $500,000 — 800,000
for 2005.
When the actuarial report is finalized in March of each year, Self -Insurance funds are moved
from Reserves for Operations to Reserves Designated for Claims Payable. In order to avoid
exceeding authorized appropriations, the amount appropriated for Claims Payable needs to
have adequate appropriations to cover the outstanding claims and IBNR amount for the year
2005 even though IBNR claims will be paid in the future years.
Because the amount is not known until after the end of the year this shifting of reserves is
needed to ensure that the Self -Insurance Fund does not exceed authorized appropriations.
The Self -Insurance Fund is adequately funded.
12. First Reading of Ordinance No. 165, 2005, Repealing Division 2 of Article II of Chapter 21
of the City Code Concerning the Personnel Board.
Because the functions of the Personnel Board can be more efficiently and economically met
by the use of ad hoc committees and the streamlining of the administrative disciplinary
process to allow for the conduct of personnel hearings by the City Manager or his/her
designee, the Personnel Board can be dissolved without adversely affecting the City.
13. First Reading of Ordinance No. 166, 2005, Authorizing the Transfer of Appropriations
Between Capital Improvements Within the Downtown Development Authority Operations
and Maintenance Fund Related to the City of Fort Collins. Colorado, Downtown
Development Authority Taxable Subordinate Tax Increment Revenue Bonds, Series 2004A
The City of Fort Collins created the Downtown Development Authority ("DDA") to make
desired improvements in the downtown area. Through tax increment financing, the DDA
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has made significant contributions to the redevelopment and improvement of the downtown
area. This Ordinance authorizes the transfer of unexpended appropriations in the Downtown
Development Authority Operations and Maintenance Fund resulting from the cancellation
of an improvement identified in Ordinance No. 89, 2004, the 2004 Bond Appropriation
Ordinance for the DDA. New improvements have been identified or are in process of being
identified and an existing improvement will receive increased funding.
The total of the improvements and associated issuance costs related to the 2004 Bond
Appropriation Ordinance was $6,235,000. The Board of Directors of the DDA (the `Board")
reviewed and recommended all of these improvements.
14. First Readin¢ of Ordinance No. 167, 2005, Amending the Code of the City of Fort Collins
Relating to General Penalties.
This Ordinance provides a new and dedicated revenue source to fund enforcement of speed
limits in neighborhoods, citywide awareness programs and other traffic calming measures.
Approval of this Ordinance will change the way the City approaches the "speeding in
neighborhoods" issue.
This program is an enhancement to the existing Neighborhood Traffic Safety Program
(NTSP) housed currently housed in Traffic Operations. Fort Collins residents want to feel
safe in their neighborhoods. This is an important quality of life aspect that many folks
believe they are missing. One of the main causes of concern is speeding in neighborhoods.
The Traffic Operations Department has had a neighborhood traffic calming program in place
for approximately 10 years and the program has been largely ineffective at reducing speeds
in neighborhoods. The new program approach is intended to change the approach to
reducing speeds on neighborhood streets.
15. First Reading of Ordinance No. 168, 2005, Appropriating Unanticipated Grant Revenue in
the General Fund for the Poudre Valley Health System "Reduce Intoxicated Driving"
Program.
Poudre Valley Health System ("PVHS") developed a comprehensive prevention program
called Reduce Intoxicated Driving ("RID") to minimize the number of individuals who drive
while intoxicated. RID collaborates with local government, businesses, law enforcement,
health care providers, Colorado State University, Poudre School District and other
community sectors to reduce the number of individuals who drive intoxicated. The program
uses many strategies to decrease the number of people who drive intoxicated such as public
education and dissemination of information about hazards of driving while intoxicated to
youth in the community.
The State of Colorado and the Alcohol and Drug Division of the Colorado Department of
Human Services require that the grant funds be dispersed to a "local public procurement
unit." A "local public procurement unit' means any county, city, municipality, or other
public subdivision of the state, any public agency of any such political subdivision, any
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public authority, any education, health or other institution, and to the extent provided by law,
any other entity which expends public funds for the procurement of supplies, services and
construction.
PVHS requested that the City serve as the local public procurement unit and a pass -through
recipient of the grant proceeds. This Ordinance will allow the City to disburse the grant
funds to PVHS (via the Hospital Foundation) upon completion of any grant -related
documents and a subgrant agreement between the City and PVHS.
16. Resolution 2005-125 Correcting a City Structure Plan Mgp Color Error Regarding the
Lifestyle Shopping Center on Harmony Road.
On July 15, 2003, the City Council adopted Resolution 2003-086 amending the Harmony
Corridor Plan to allow for the potential development of a Lifestyle Shopping Center to be
located north of Harmony Road and west of Ziegler Road, west of Hewlett-Packard.
Specifically, Map 10 of the Harmony Corridor Plan was amended to show a new "Mixed
Use Activity Center" north of Harmony Road and west of Ziegler Road as the potential
location for a Lifestyle Shopping Center.
The amendment to the Harmony Corridor Plan occurred during the process to update City
Plan, the City's Comprehensive Plan. A revised City Structure Plan map was an element of
the update to City Plan. The boundaries of the new Mixed Use Activity Center of the
amended Harmony Corridor Plan was depicted on the revised Structure Plan map
Unfortunately, the color associated with the center was the color for a neighborhood
shopping center instead of the color for a Commercial Corridor District, the broader category
for a lifestyle shopping center. The Council approved the update to City Plan with the
adoption of Resolution 2004-058 on May 4, 2004, and in doing so approved the wrong color
for the lifestyle shopping center. The purpose of this Resolution is to correct the error and
place the correct Commercial Corridor District color on the Structure Plan map for the
lifestyle shopping center on Harmony Road.
17. Resolution 2005-126 Findin2 Substantial Comj2liance and Initiating Annexation Proceedin2s
for the McClelland's Creek PD & PLD Annexation.
The applicant, Stanley K. Everitt, on behalf of the property owners, McCreek, LLC, has
submitted a written petition requesting annexation of 11.93 acres located on the east side of
Lake Ranch Road, approximately 1/8th mile south of Kechter Road between Ziegler Road
to the west and Strauss Cabin Road to the east. McClelland's Creek runs along the east side
of the property. The property is undeveloped and is in the FA-1 Farming District in Larimer
County. The requested zoning for this annexation is LMN - Low Density Mixed -Use
Neighborhood. The surrounding properties are currently zoned FA-1 Farming in Larimer
County to the east, LMN - Low Density Mixed -Use Neighborhood in the City to the north,
LMN - Low Density Mixed -Use Neighborhood in the City to the south, and LMN — Low
Density Mixed -Use Neighborhood in the City to the west.
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The proposed Resolution makes a finding that the petition substantially complies with the
Municipal Annexation Act, determines that a hearing should be established regarding the
annexation, and directs that notice be given of the hearing. The hearing will be held at the
time of first reading of the annexation and zoning ordinances. Not less than thirty days of
prior notice is required by State law.
The property is located within the Fort Collins Urban Growth Area. According to policies
and agreements between the City of Fort Collins and Larimer County contained in the
Intergovernmental Agreement for the Fort Collins Urban Growth Area, the City will agree
to consider annexation of property in the UGA when the property is eligible for annexation
according to State law. This property gains the required 1/6 contiguity to existing City limits
from common boundaries with the Staley Annexation (May, 2001) to the north, the Fossil
Lake Annexation No. 1 (March, 2002) to the west, and the Swift Addition to Fossil Lake
PUD Annexation (July, 2003) to the south.
18. Resolution 2005-127 Adoptin to he City's 2006 Legislative Policy Agenda.
Each year the Legislative Review Committee (LRC) develops a legislative agenda to assist
in the analysis of pending legislation. The proposed 2006 Legislative Policy Agenda has
been updated from the 2005 document and was reviewed and approved by the Legislative
Review Committee. Changes are highlighted below. This document will be used as a guide
for the upcoming 2006 General Assembly and the second session of the 109`h Congress. The
purpose of the Legislative Policy Agenda is to articulate the City's position on common
legislative topics. It will be used by Council members and staff to determine positions on
pending legislation and as a general reference for state legislators and our congressional
delegation.
19. Resolution 2005-128, Adopting the City's Economic Vision and Values.
On November 15, 2005 City Council adopted the 2005-2007 Policy Agenda outlining the
policy initiatives Council wishes to undertake during the two-year term. One of the policy
goals included under the mission of "Improve Economic Health" is the development of an
economic plan.
As a foundation for the economic plan, Council members recognized the need to develop an
economic vision and a set of economic core values. Members of the Economic Vitality and
Sustainability Action Group (EVSAG) provided recommendations that assisted Council in
this effort.
This Resolution adopts both the economic vision and core values. These two components
will, in turn, guide the development of specific strategies and actions contained within the
economic plan, which is scheduled to be completed in 2006.
***END CONSENT***
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Ordinances on First Reading were read by title by City Clerk Krajicek.
6. First Reading of Ordinance No. 159, 2005, Appropriating. Prior Year Reserves in the General
Employees' Retirement Fund.
First Reading of Ordinance 160, 2005 Authorizing the Lease of Portions of Soapstone Prairie
Natural Area to Folsom Grazing Association.
8. First Reading of Ordinance No. 161, 2005, Making Various Amendments to the City of Fort
Collins Land Use Code.
9. First Reading of Ordinance No. 162, 2005, Amending Section 2-575 of the City Code
Relating to Councilmember Compensation.
10. First Reading of Ordinance No. 163, 2005, Amending Section 25-75 of the City Code so as
to Extend Certain Portions of the Q3t s Sales and Use Tax in Accordance with Three Voter -
Approved Ballot Measures.
11. First Reading of Ordinance No. 164, 2005, Appropriating Prior Year Reserves in the Self
Insurance Fund to Cover the Annual Actuarial Report Adjustment.
12. First Reading of Ordinance No 165 2005 Repealing Division 2 of Article II of Chapter 21
of the City Code Concerning the Personnel Board.
13. First Reading of Ordinance No. 166, 2005, Authorizing the Transfer of Appropriations
Between Capital Improvements Within the Downtown Development Authority Operations
and Maintenance Fund Related to the City of Fort Collins. Colorado, Downtown
Development Authority Taxable Subordinate Tax Increment Revenue Bonds, Series 2004A
14. First Reading of Ordinance No. 167, 2005, Amending the Code of the City of Fort Collins
Relating to General Penalties.
15. First Reading of Ordinance No. 168, 2005, Appropriating Unanticipated Grant Revenue in
the General Fund for the Poudre Valley Health System "Reduce Intoxicated Driving"
Program.
25. First Reading of Ordinance No. 169, 2005, Creating the Land Conservation and Stewardship
Board.
Councilmember Weitkunat made a motion, seconded by Councilmember Manvel, to adopt and
approve all items not withdrawn from the Consent Calendar. Yeas: Councilmembers Brown,
Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
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Consent Calendar Follow-up
Mayor Hutchinson commented regarding item #19 Resolution 2005-128, Adopting the City's
Economic Vision and Values.
Consideration of the Appeals of the September 8, 2005,
Determination of the Administrative Hearing Officer to Deny the
Cherry Street Station Project Development
Plan, Recommendation of Hearine Officer Overturned
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY.•
On September 8, 2005, the Administrative Hearing Officer denied the Cherry Street Station Project
Development Plan, a proposal to develop a vacant.349 acre site (15,213 square feet) into a 15-unit,
69 foot tall multifamily project with a small (200sj) office/server area for an internet provider.
The property is located on the north side of Cherry Street just west of College Avenue, within the
CCR — Community Commercial — Poudre River District.
On September 21, 2005, the City Clerk's Office received a Written Notice of Appeal from Mikal
Torgerson regarding the decision of the Administrative Hearing Officer, hereafter referred to as the
"Torgerson Appeal. " On September 30, 2005, two additional Written Notices of Appeal were
received by the City Clerk's Office, one from Jerry Gavaldon, hereafter referred to as the "Gavaldon
Appeal " and one from Mikal Torgerson, Troy Jones, Bill Mesaros and Jeanette Cullup, hereafter
referred to as the "Jones Appeal. " The Gavaldon Appeal was withdrawn via email on October 12,
2005.
The Torgerson and Jones Appeals allege that the Administrative Hearing Offz cerfa iled to apply the
Land Use Code properly, allegations of error that enable the Council to uphold, overturn or modify
the decision of the Hearing Officer.
The procedures for deciding the appeals are described in Chapter 2, Article II, Division 3 ofthe City
Code. "
Mayor Hutchinson asked the City Attorney to explain the appeals process. City Attorney Roy stated
the Code had provisions outlining the process to be followed in the event that a decision of certain
boards, commissions or decision makers was appealed. He stated in this case an appeal was filed
regarding the decision of a Hearing Officer. He stated the Hearing Officer's decision was presented
to the Council in the form of a record of the proceedings before the Hearing Officer and that the
Council's decision on the appeal was based on the applicable law (the criteria contained in the Land
Use Code and perhaps sections of the City Code) and upon the evidence in the record. He stated no
new evidence was to be admitted except in response to Council questions. He stated if there was an
allegation of false and misleading evidence that some evidence to rebut that false and misleading
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evidence would be appropriate. He stated the notice of appeal was supposed to describe the grounds
upon which the appeal was to be heard, and that this was to be taken into consideration by Council.
He stated in these two appeals there were no grounds alleged that appellants were denied a fair
hearing by the Hearing Officer. He stated the allegations were that the Hearing Officer failed to
properly interpret and apply certain applicable provisions relating to this Project Development Plan.
He stated the Mayor would establish time frames and process for the hearing of the two appeals.
He stated at the conclusion of the hearing the Council could uphold, overturn or modify the decision
of the Hearing Officer or remand to the Hearing Officer to further consider information received by
the Council. He stated only parties -in -interest were entitled to participate in the hearing. He stated
in the case of multiple appeals the Code provided that the Mayor may modify the normal procedure
at his discretion. He stated the Mayor would therefore decide how to proceed, whether to combine
the two appeals to be heard together, or whether to hear the appeals separately. He stated he had
recommended that the two appeals be combined for hearing and that the two appellants disagreed
with that recommendation. He suggested that they be given an opportunity to speak to the issue of
combining the two appeals. He stated he recommended combining the two appeals because it
seemed to be more efficient. He stated the Code indicated that the procedure could be modified so
as to expedite the hearing of the appeals and to give the Council the context in which the appeals
were coming forward and a feel for all of the issues before the Council would begin to make
decisions. He stated he was concerned about the precedent of having multiple appeals on behalf of
the same appellant result in multiple hearings.
Mayor Hutchinson stated he believed that a combined presentation would be best in this situation.
He stated parties -in -interest would be allowed time to respond to his proposal. He suggested the
presentation time should be 30 minutes for each side for presenting information regarding both
appeals. He stated the same parties were involved in both of the interrelated appeals and that it
would be "useful to the Council' to have a single hearing of the presentation of all of the facts. He
stated he would suggest that each side have 10 minutes for rebuttal. He stated he believed that this
procedure would result in hearing this as an "integrated whole." He invited that any party -in -interest
comment or make suggestions on the proposed procedure.
Mikal Torgerson, appellant, stated two appeals were intentionally submitted. He stated if the
Torgerson appeal was successful there would be no need for the second appeal. He stated the second
appeal dealt with modifications to the standards. He stated the first appeal related to the question
of whether the proposed building would be three stories or four stories. He stated two separate
appeals were submitted to reduce the time for hearing the appeals and that he was confident that the
second appeal hearing would not be necessary.
Troy Jones, party -in -interest, stated he would like to see a decision on the "simple" appeal relating
to the four-story building. He stated if the first appeal was overturned that there would be no need
to proceed with the second appeal.
Adam Reeves, attorney representing Patrick Reeves, stated in this case the question of whether it
would be a three or four story building was a "threshold issue" and remanding might be appropriate,
meaning that the second appeal might not be "proper to hear."
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Mayor Hutchinson stated the appellants might be more familiar with the matter than the Council
andbecause there were many "interrelated aspects" it would be appropriate to allow 30 minutes to
hear both appeals. He stated this was the process to be followed. He stated there would first be an
explanation of the nature of the appeals and a presentation by City staff.
Anne Aspen, City Planner, presented background information regarding the agenda item. She stated
a flowchart had been presented to the Council to outline the items to be decided by the Council. She
stated the site was located on the west side of College Avenue and the north side of Cherry Street
between two railroad tracks and east of Mason Street. She described the zoning designations for
adjacent and nearby property. She presented visual information regarding the proposed project and
the proposed elevation for Cherry Street. She stated the proposal was for a three-story building and
that a mezzanine was included on each of the three stories in the proposed plan. She stated the
Hearing Officer questioned whether the top mezzanine should be considered to be a "floor." She
stated the height maximum in this zone district was three stories and that there was no specific foot
calculation. She stated the Hearing Officer questioned whether the 69 foot building was three or four
stories i.e. whether the top mezzanine was a separate floor or part of the third floor. She stated the
Hearing Officer looked for a definition for "mezzanine" in Division 5 of the Land Use Code and that
there was no definition in that Division. She stated there was a section which prescribed what to do
if a definition was needed and there was no specific definition included, and that this section referred
to a number of possible sources for definitions. She stated the Hearing Officer referred to two of
those sources and decided that the third floor mezzanine did not count as a mezzanine and was
actually a fourth floor. She stated the Hearing Officer believed that this was not an "intermediate
floor" and was on top of the top floor. She stated the Hearing Officer denied the project based
primarily on that fact. She stated the appeals were primarily about the contention that the Hearing
Officer did not correctly interpret the Code in saying that the top mezzanine was a separate floor.
She stated the appeals cited information indicating that the Building Department had determined that
it was a "floor." She stated further information came to light after the hearing indicating that in a
situation such as this the most specific and recently adopted Codes must be followed. She stated
the big question for the Council was whether this building was three stories or four stories. She
stated if the Council determined that it was a three-story building it would be allowed in the zone
district. She stated this determination would overturn the Hearing Officer's decision. She stated the
Council would need to determine whether the project met the standards of the special height review.
She stated if the Council determined that it met those standards the Council should overturn the
denial, with or without the conditions set out in the original staff report. She stated if the Council
determined that it did not meet those standards that the Council should uphold the denial. She stated
if the Council determined that this was a four-story building it would not be allowed in the CCR
zone district and the Council would uphold this part of the decision of the Hearing Officer. She
stated in this case the Council would have several options. She stated the applicant had presented
two possible modifications to the Hearing Officer: (1) a request for modification based on the equal -
to -or -better -than part of the modification standards, or (2) a special height modification under
Division 3 of the Land Use Code. She stated the Council would need to determine if one of those
two modifications should be used. She stated if Council chose the equal -to -or -better -than
modification, there would be a need for several "checks." She stated those would be whether the
proposed four-story building was equal -to -or -better -than a compliant project. She stated if the
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Council determined this to be the case there would be a need to do the same "check" with a three-
story building. She stated if the Council determined that the project met the standards of special
height review that the Council should overturn the denial, with or without the original conditions set
out in the staff report. She stated if the Council determined that the building was not equal -to -or -
better -than a compliant project that the Council should uphold the denial. She stated the Council
should also uphold the denial if it determined that the project would not meet the standards of special
height review. She stated if the Council entertained a request for special height modification that
it would be necessary to decide if the proposed building met at least one of the seven applicable
criteria. She stated if the Council determined that it did meet the criteria there would be a need for
the special height review "check" and the Council would need to uphold or overturn the denial. She
stated if the Council determined that it did not meet the criteria that the Council should uphold the
denial. She presented visual information showing that the proposed project had a cornice line
elevation of about 55 feet and a stepped back section with a height of 69 feet. She stated a
modification was requested in the event this was determined to be a four-story building to have a
facade at the cornice line that would be nearly 70 feet.
Greg Byrne, CPES Director, stated much depended on whether this was determined to be a three-
story or four-story building. He stated the staff made its recommendation for a number of reasons.
He stated the staff in all departments worked hard for consistency in making decisions regarding
development review. He stated it was important that all departments apply the same rules and that
where there were conflicts the staff was guided by the Land Use Code. He noted that the most
specific provision prevailed. He stated staff also looked at which of the conflicting provisions was
adopted more recently. He stated the Land Use Code provided that mezzanines could not be more
than one-third of the floor area of the associated room and that "mezzanine" was not defined. He
stated the Uniform Building Code expanded the allowable floor area from one-third to one-half of
the floor area of the associated room through a local amendment to the Building Code subsequent
to the adoption of the Land Use Code. He stated this was therefore a "more specific provision,
adopted more recently." He stated the Uniform Building Code also had some specific definitions
of "mezzanine" and offered several specific diagrams and charts illustrating different mezzanine
configurations. He stated it also addressed occupant loading for a mezzanine (i.e. no more than 10
people if enclosed). He stated, based on the clear conflict in language between the Land Use Code
and the Building Code, he met with staff from both departments and directed that the standards of
the Uniform Building Code be applied to this case for the following reasons: it was more specific,
it was adopted more recently by the Council in a local amendment to the Building Code, and it
ensured consistency in the Development Review Process among departments. He stated he wanted
Council to understand the reasoning that was part of the decision -making process in this case.
Aspen stated a request had been received from a Councilmember for a drawing or photograph to
show a human -scaled figure and that a photograph had been created and e-mailed to the Council in
response to that request.
Mayor Hutchinson stated the appellant would have 30 minutes to make a presentation.
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Mikal Torgerson, 221 and 223 North College Avenue, appellant, stated the project was presented
on September 8 to the Hearing Officer and that on September 14 the appellant was informed that the
project was denied. He stated the primary reason for denial was that the Hearing Officer determined
that the building was four stories rather than three stories, which was the maximum allowed in the
zone district. He stated on September 21 and September 30 the two appeals were filed. He stated
there were two allegations of error in the first appeal. He stated the first allegation was that the
Hearing Officer erred in determining whether the building was three or four stories. He presented
visual information relating to the site, the area to the north proposed by the City for a Children's
Museum (which was proposed to be 60 feet tall), the triangular layout of the lot, a ramp that would
go into an underground parking structure on the northwest side of the building, the building's
dimensions (55 feet from the sidewalk level to the cornice of the building), the step -back of the
building on all three sides, a pediment element that would step up to a maximum at the building's
ridge line of 69 feet, and views of the northwest and south elevations. He stated the building would
have relatively tall ceilings. He stated Ms. Aspen had indicated that there was no maximum building
height in the zone district and that it was true that the maximum height was three stories. He stated
there had been an administrative interpretation made by Cameron Gloss, Director of Current
Planning, regarding the maximum height of the three stories.
City Attorney Roy stated the Mayor would rule on the admissibility of evidence and that the Code
indicated that new evidence would be heard only in response to questions from Councilmembers.
He stated the first question was whether this evidence was presented to the Hearing Officer, and, if
not, it could be admitted only in response to a question by a Councilmember.
Mayor Hutchinson asked if the graphic being presented by Mr. Torgerson was presented to the
Hearing Officer. Mr. Torgerson stated the graphic was not presented in PowerPoint form to the
Hearing Officer but the section was presented in paper form to the Hearing Officer.
City Attorney Roy asked staff if this evidence had been presented in paper form. Aspen stated she
had not seen the information and it was not in the Council packet, which represented all information
that was submitted to the Hearing Officer.
Mr. Torgerson stated he believed that the graphic was part of the Council packet. He stated he was
including the graphic in PowerPoint form to clarify the mezzanine issue.
Mayor Hutchinson asked for clarification. City Attorney Roy stated the information needed to be
in the record of the proceedings or submitted in response to a request from a Councilmember.
Mayor Hutchinson asked that the presentation be continued without the graphic and that it be kept
for response to any Council questions.
Mr. Torgerson stated he believed that the graphic was included in the Council's packet and that he
had downloaded it from the Web.
City Attorney Roy asked if that was marked in some fashion or if the appellant could describe it.
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Mr. Torgerson stated the graphic was a transverse section through the building.
City Attorney Roy stated this information should be retained by the City even if the Council did not
consider it, in case there was an appeal.
Mayor Hutchinson asked that the slide at issue be held in abeyance unless there was a Council
question at some point.
Mr. Torgerson asked if he could present the text of the Hearing Officer's denial.
City Attorney stated if it was presented verbatim, it was part of the record and could be presented.
Mr. Torgerson stated the Hearing Officer concluded that the Land Use Code was not very specific
about what constituted a mezzanine except that it could not be more than one-third of the floor area.
He stated the Hearing Officer sought additional clarification about mezzanines and went to the New
Illustrated Book of Development Definitions and the Webster's International Dictionary. Hestated
the text of the Hearing Officer's decision indicated that she chose not to look at the Uniform
Building Code. He contended that this was an error because, if the project was approved, the next
step would be to submit building plans for Building Department review under the Uniform Building
Code. He stated it was "ludicrous" to decide whether a mezzanine was or was not a mezzanine
based on the Webster's Dictionary rather than the Uniform Building Code. He stated the Hearing
Officer stated: "No less than two-thirds of the main floor must be open to the full height of the
ceiling above it. The balcony or mezzanine may project into no more than one-third of the otherwise
open floor to ceiling height." He stated this was not consistent with the definition of "mezzanine"
under the Uniform Building Code. He stated the Hearing Officer made the decision to deny the
project and stated in her decision: "The area designated as the third -story mezzanine constitutes a
fourth story and does not comply with the height standard in the CCR District." He stated there was
one fundamental question for the question i.e. whether the Council should rely on the interpretation
of the Director of CPES, the Director of the Building and Zoning Department, and plans examiners.
He stated he met with staff early in the process to determine if this was a three-story building, and
that staff indicated at that point that this was a three-story building with mezzanines. He stated he
and Mr. Jones also met with Peter Barnes of the Zoning Department on the same question and that
he determined that this was a three-story building. He stated staff had gone on to look at the project
in "significantly more detail" that the Hearing Officer did in the context of a brief hearing and that
all staff involved agreed that this was a three-story building. He stated the question was whether
"they were all wrong" or whether the Hearing Officer was correct. He stated the second allegation
of error in the first appeal related to the special height review standard of the Code. He stated all
buildings that were over 40 feet in the City had to go through a special height review. He stated
there was some confusion about whether or not the Hearing Officer found that the project complied
with the standard. He stated the memo that Council received indicated that the Hearing Officer did
find that the project complied with this standard. He stated Patrick Reeves, a party -in -interest, had
submitted documents indicating that he believed that the project complied.
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Troy Jones stated if the Council agreed that it was a three-story building that the flow chart indicated
that the next question was whether the project met the special height review criteria. He stated the
new urbanist transect concept was that there was an appropriate place for every type of intensity,
ranging from rural (non -built and natural) to downtown core areas in major cities, and that within
the manmade environment there would be various transitions from one extreme to the other. He
presented visual information to show application of the transect concept and transitions. He stated
the Downtown Strategic Plan began applying this concept to the downtown zone. He presented
visual information regarding the project site and stated the Downtown Strategic Plan indicated that
it was appropriate to have up to 115 feet in height for a building just south of the project site, and
other high buildings west of that area, and transitions to residential zones with 2'/z story buildings.
He stated the proposed site was projected onto a diagram of the transect, and showed visual
information depicting the Poudre River, the downtown area, and a taller Discovery Center Museum
that would transition from the downtown to the river. He stated the river was over 700 feet away
from the project and that the project would identify more with downtown than with the river. He
stated there were four parts to the special height review: views, light and shadow, privacy and
neighborhood scale. He presented the PowerPoint presentation that was given for the Hearing
Officer. He stated the building would not be allowed to substantially hinder the opportunity for
people to see significant views of the mountains. He presented diagrams indicating that the project
did not impact significant views. He stated a shadow analysis was done and that it indicated that the
most significant impact would be to College Avenue landscaping and the railroad tracks. He stated
the project would not be adjacent to a residential area or park and would not significantly impact
privacy. He stated the site was not considered part of the residential neighborhood to the west and
that it was a block and a half away from that neighborhood. He stated the project identified with the
downtown and buildings in that area that were 40-110 feet high. He stated the proposed project was
considered to be in the transition area between the downtown and the river rather than part of the
neighborhood to the west. He stated there were two different ways to request a modification in the
event the Council determined that this was a four-story building. He stated the Code provided for
a process in Section 3.5. 1 (G)(1)(C) to increase or decrease the allowed height of a building based
on performance with regard to seven different criteria. He stated the appellant believed that the
project complied with the criteria as follows: (1) Preserving the character of existing residential
neighborhoods - The proposed building was not in a residential neighborhood and was part of the
downtown and therefore did not affect the character of the residential neighborhood. (2) Allowing
architectural embellishments consistent with architectural styles - Architectural character was added
with the pediment feature to reflect design inspirations. (3) Defining or reinforcing the downtown
area as the major focal point in the community - The Downtown Strategic Plan indicated that this
site was within the planning area for that plan and showed a site to the south with a 115 foot tall
building, and the downtown transit center was a block and a half away. He stated the Hearing
Officer declared that criteria 4-7 were not applicable. He stated the project complied with those
criteria as follows: (4) Allowing for the maximum utilization of activity centers - The project was
close to the transit center and the downtown and would be in an activity center. (5) Protecting
access to sunlight - The project would not impact anyone's access to sunlight. (6) Providing
conscientious direction to the urban form ofthe City through careful placement oftall buildings and
structures within activity centers - The project was on the edge of the activity center and would
adequately transition between the 115 foot building allowed across the street and the eventual
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transition to the river. (7) Allowing rooftop building extensions to incorporate HVAC equipment -
The air conditioning condensing units would be tucked inside the pediment feature. He stated in the
event that the Council determined that this was a four-story building the project complied with the
criteria for a modification. He stated a modification could also be done under Section 2.8.2 of the
Land Use Code. He stated the project satisfied the applicable criteria in that process as well. He
stated the project was not detrimental to the public good and that this type of modification would
promote the general purpose of the standard for which the modification would be requested equally
well or better. He stated the purpose statement for the CCR zone district was that the zone was for
downtown fringe areas in the Cache la Poudre corridor with both public street frontage and river
frontage to provide locations for redevelopment or development ofmoderate intensity uses that were
supportive of downtown, subject to floodplain restrictions. He presented a diagram showing that a
three-story building would meet the Code requirements and the proposed building, which would be
a much better building. He stated either one of the buildings would comply with the Code in terms
of the special height review criteria and neighborhood compatibility. He stated the appellant would
prefer the proposed building and that it would satisfy the "equal to or better than" criteria.
Mayor Hutchinson asked if there were any other parties -in -interest in support of the appeal.
Dolores Williams, 415 Mason Court 7A, stated she had received a message from the City about the
appeal. She stated this building had "character" and that the mezzanine would allow "more
interesting things" to be done inside the building.
to a "boxy" and possibly "ugly" modification.
downtown and to North College Avenue.
She stated the proposed building was preferable
She stated the project would be a credit to the
Jerry Gavaldon, 1252 Solstice Lane, asked if citizen participation would be allowed.
Mayor Hutchinson stated only parties -in -interest were allowed to provide input within the 30 minute
time frame and asked if Mr. Gavaldon was a party -in -interest.
City Attorney Roy asked if Mr. Gavaldon appeared at the hearing before the Hearing Officer.
Mr. Gavaldon indicated that he did so.
Mayor Hutchinson stated Mr. Gavaldon would be allowed to speak as a party -in -interest.
Councilmember Ohlson asked for clarification regarding "party -in -interest' as opposed to someone
who was interested.
City Attorney Roy stated a party -in -interest would be the applicant, any party holding a proprietary
or possessory interest in the real or person property which was the subject of the decision, any person
to whom or organization to which the City mailed notice of the hearing before the Hearing Officer,
any person who or organization which sent written comments to the Hearing Officer, and any person
who appeared before the Hearing Officer. He noted that Mr. Gavaldon indicated that he appeared
before the Hearing Officer and that he was therefore a party -in -interest.
November 29, 2005
Mr. Gavaldon stated he previously lived at 413 North Grant Avenue. He stated the applicant
followed all of the steps and processes and had worked with staff. He stated the Hearing Officer
allowed a short time for discussion and did not fully understand this development. He stated the
three-story interpretation with a mezzanine was appropriate. He stated there would be 600-700 feet
to the nearest house and that this would be compatible with the surrounding neighborhood. He stated
this would not impose on the neighborhood and would be a "great addition" to the downtown plan.
He stated Penny Flats to the southwest would be high. He stated this project fit the scope of the
downtown neighborhood. He stated he was fully supportive of the project.
Mayor Hutchinson stated any parties -in -interest opposed to the appeals would have 30 minutes to
make a presentation.
Jim Wurz, 425 North Sherwood Street, stated he viewed the six levels as a six -story building. He
stated the issue was the 70-foot height of the building at this location. He stated the building would
be too tall compared to existing and planned buildings in the surrounding area. He stated there was
no current proposal for a building of 115 feet to the south of this site. He stated the power plant to
the east was 49 feet tall and that it was stepped back, that Penny Flats would have 20 foot stepped
back buildings facing the street, that Mason Street North was 39 feet high, and that everything
around the site was therefore shorter. He stated this would be one of the tallest buildings in the
downtown area. He stated in relation to a height variance, this project would not reinforce
downtown as a focal point and in effect, it would create "downtown sprawl." He stated this would
create a new, tall set of buildings on the edge of downtown. He stated this would set a precedent for
the CCR zone and that this could mean a new downtown -type district away from downtown. He
stated in the visual preference survey 10 years ago, people said that they really liked the height of
the older downtown buildings. He stated he took issue with the height of this building and with the
graphic of the transition, since there were no buildings between this site and the River and there was
no 115 foot tall building to the south. He stated this would go from undeveloped land directly up
to 70 feet and there would be land grading, meaning that this building would be much taller seen
from the park that it would be seen from the street. He stated his biggest issue relating to the height
was the effect on Lee Martinez Park. He stated the eastern side of the Park was one of the few places
in the area that was truly undeveloped, unprogrammed space. He stated if in -fill development was
going to succeed in Fort Collins, there needed to be "areas of refuge" to get away from the noise,
smell and traffic of higher intensity districts. He stated this building would "loom over" the
undeveloped part of the Park and "destroy that feeling of being away." He stated the Code provided
that buildings over 40 feet should not impinge on the privacy of public or private land, and that this
would impinge on the privacy of park land. He stated this would also be pedestrian unfriendly and
that the streetscape on Cherry Street would be presented with a pediment that would be taller than
the average human being. He stated pedestrians would be walking along a stone wall with parking
vents next to them and would look up to a 55 foot tall building. He stated Cherry Street was already
difficult for pedestrians due to curb cuts and the railroad tracks and that this project would make it
even more difficult.
November 29, 2005
Adam Reeves, attorney representing Patrick Reeves, 810 Maple Street, stated the Council would
need to make a complicated set of decisions. He suggested that the "real decision" was whether this
was a three-story or four-story building.
A member of the audience (inaudible) questioned whether the speaker was a party -in -interest.
Mr. Reeves stated he submitted comments that were in the record.
Mayor Hutchinson requested clarification by the City Attorney. City Attorney Roy stated there were
frequently parties -in -interest represented by legal counsel, that this had established a precedent, and
that it was within the Code to allow Mr. Reeves to make the presentation on behalf of his client
provided his client was a party -in -interest.
Mr. Reeves stated his client was a party -in -interest.
City Attorney Roy asked Mr. Reeves to establish for the record that his client was a party -in -interest.
Mr. Reeves stated his client was Patrick Reeves, who resided at 810 Maple Street and who submitted
comments on this issue and spoke at the hearing.
City Attorney Roy stated the Mayor needed to rule on the objection.
Mayor Hutchinson stated Mr. Reeves would be allowed to speak as a representative of the party -in -
interest.
Mr. Reeves reiterated that the "simple question" and the "threshold issue" was whether this was a
three-story or four-story building. He stated this question turned on whether the structure sitting on
top of the 55 foot structure was a mezzanine and whether that mezzanine fell within the "mezzanine
loophole" which would allow an individual to increase floor space without characterizing it as an
additional story. He stated as a historical matter, no one suggested that this was a mezzanine until
the day of the hearing. He stated a letter from Troy Jones to Cameron Gloss on February 8
acknowledged that the upper level did not include a mezzanine and stated: "A third floor of the
proposed building would have upper levels that would also have finished floor levels 10 feet above
this floor. This upper level is not technically a mezzanine because it would allow users to walk out
on the flat roof of a floor below and therefore provide rooftop patio areas." He stated a March 21
letter from MTA requested that the Director of Current Planning issue an interpretation on this issue
and that this letter again reiterated that this was not technically a mezzanine because you could walk
out on it and added that: "The building parapet would serve as a natural rail for these penthouse [not
mezzanine] spaces." He stated on April 1 an e-mail from Mr. Torgerson to Chris Maldonado, a
party -in -interest, again suggested that the upper level was a penthouse, stating that: "The proposed
building is 55 feet tall to the parapet. At this point, the building steps back substantially and has an
upper penthouse area that has a nine -foot ceiling height." He stated on April 27 and e-mail in the
record between Ms. Aspen and his client Patrick Reeves indicated that: "There is a nonstandard
`mezzanine' above the third floor within the roof structure that would not look over the living space
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but would have access to outdoor space above the living space. Clearly, this is not compliant with
3.8.17." He stated on September 7, the day before the hearing, the request for modification from Mr.
Torgerson to Mr. Gloss cited 3.8.17 and acknowledged that this was a four-story building under the
Land Use Code. He stated the request stated: "Given this definition, the building is technically a
four-story building." He stated on September 8, the day of the hearing, a memo from Ms. Aspen
stated: "The consensus from Current Planning is that the upper level is not a mezzanine under the
Land Use Code. Independent consultations with Cameron Gloss of Advance Planning, Peter Bames
of the Zoning Department and Mike Gebo of the Building Inspection Department produced a
consensus from staff that the mezzanines do not meet the standards of the Land Use Code." He
stated on September 8 there was an "about face." He stated until then everyone who had considered
this had never suggested that these were compliant mezzanines. He stated on September 8 there was
a second memo from Ms. Aspen, apparently in response to Mr. Byme's direction, that they were
incorrect. He stated this memo stated: "Further review of plans by several staff members, including
Neighborhood and Building Services Director has resulted in a determination that in fact the third
floor mezzanine meets the requirements of a mezzanine. The mezzanines are now determined to be
in compliance with the Uniform Building Code." He stated the question was whether this was a
mezzanine and whether it fell within the "mezzanine loophole." He stated this was a question of
definition and that no one had yet given a definition of "mezzanine" under the Uniform Building
Code. He stated under the Uniform Building Code a "mezzanine" or "mezzanine floor" was an
intermediate floor placed within a room. He stated this would sit on top of a room. He stated the
"mezzanine loophole" was in the Uniform Building Code i.e., how a mezzanine must be
characterized in order for it to not count as a story. He stated it may be equal to one-half of the area
of the room in which it is located. He stated there was never any finding with regard to whether Mr.
Torgerson's mezzanines were one-half ofthe room. He stated there were some discussions regarding
whether the mezzanines were one-third of a floor they occupied. He stated because the Hearing
Officer never considered the Uniform Building Code, he would suggest, if the Council determined
that the Uniform Building Code was controlling, that the Council remand this matter to the Hearing
Officer to determine whether the mezzanines complied with the Uniform Building Code.
Mayor Hutchinson asked if there were other parties -in -interest in opposition.
Ms. Williams stated she had additional comments.
Mayor Hutchinson asked if a party -in -interest could speak on both sides of the issue. City Attorney
Roy stated a party -in -interest was entitled to speak and could speak on both sides of the matter if she
was changing her mind. He stated if her remarks were again in support, they would be inappropriate
during the time allotted for parties -in -opposition to speak. He stated there would be an opportunity
for rebuttal.
Mayor Hutchinson stated parties -in -interest in support of the appeal would have 10 minutes for
rebuttal.
Mr. Torgerson stated Mr. Wurz talked about the height and the context and indicated that it was not
appropriate to look at what might be proposed around the site. He stated Mr. Wurz also indicated
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that there was no 115-foot building proposed to the south of the project. He stated that was incorrect
and that he had a client who had commissioned his office to design a building on the entire block
to the south. He stated the maximum height allowable under the Land Use Code was 115 feet. He
stated the City was also proposing the Discovery Center and Museum project to the north of the site,
several hundred feet closer to the River and Park area. He stated the architect for that project (Dave
Lingle) had indicated that the project was intended to be 60 feet tall. He stated with roof structure
and parapets, the project would be at least 64 feet tall. He stated there were projects of similar
magnitude being proposed immediately to the north and south of the project. He stated Mr. Wurz
indicated there were no buildings between the site and the River and that this was not accurate. He
stated there were several auto shops in the CCR between the site and the River. He stated the
concern was raised that the project would loom over the Park and that this was not relevant to the
context of the appeal. He stated if that was a concern of the City, a museum that would be only nine
feet shorter than the project should not be proposed several hundred feet closer to the Park. He
stated Mr. Reeves suggested that no one had ever brought up that these were mezzanines and that
this was proposed the day of the hearing. He stated this was "absolutely untrue." He stated he met
with the Building Plans Reviewers throughout this process.
("Secretary's Note: At this point there was an inaudible comment from the audience.)
City Attorney Roy stated any comments should be made at a microphone in case of an appeal. He
stated the timing of the time period for rebuttal should be suspended to address the objection that had
been made. He noted there had been an objection from Mr. Reeves that the facts referred to by Mr.
Torgerson were not facts that appeared in the record of the proceedings. He stated the question was
whether that was true, and, if so, unless a Councilmember wanted to know that information and
asked for it, this information was inadmissible as new evidence. He stated the question was whether
the facts being presented by Mr. Torgerson were presented to the Hearing Officer.
Mr. Togerson stated he recalled discussing with the Hearing Officer the fact that the day before the
hearing, staff raised, for the first time, the issue of whether this was not a mezzanine and could
perhaps be considered to be a story. He stated there was lengthy discussion about this issue at the
hearing.
City Attorney Roy stated for the Mayor to rule on that objection, it was necessary to know whether
in fact that was in the record.
Mayor Hutchinson asked how that would be determined in the context of this hearing. Byrne stated
the diagrams being projected onto the screen were copies submitted to the Current Planning
Department and they clearly referred to mezzanine plans and detailed calculations of square footage
of the mezzanines as they related to the floor area of the room with which they were associated. He
stated this was one of the reasons staff entered into the discussion of the Land Use Code versus the
Uniform Building Code. He stated both of those calculations appeared on the plans and they were
clearly different percentages.
November 29, 2005
Mayor Hutchinson asked if the dates of this information supported Mr. Torgerson's statement.
Byrne stated this was part of the original submittal to the Current Planning Department on which the
staff recommendation and the Hearing Officer's decision was made. He stated it was part of the
record from the day of the first submittal.
Mayor Hutchinson ruled that Mr. Torgerson could proceed.
Mr. Torgerson stated the mezzanine issue had been discussed and that the Current Planning staff
requested the submittal of detailed plans and calculations verifying the fact that the project met the
City Land Use Code and the Uniform Building Code definitions of a "mezzanine" in terms of the
percentage of area of the floor below it. He stated Mr. Reeves also indicated that the Uniform
Building Code clearly stated mezzanines had to be within a floor and a ceiling. He stated this was
inaccurate and that he would like to place the following information into the record.
City Attorney Roy suggested that a copy of the information be provided to Mr. Reeves to determine
whether there was an objection to the information.
Mr. Torgerson stated the Uniform Building Code had with it a Handbook to the Uniform Building
Code, which had diagrams indicating the project's situation.
("Secretary's Note: At this point there was an inaudible comment from the audience.)
City Attorney Roy stated Mr. Reeves should approach the microphone.
Mr. Reeves stated the Uniform Building Code had been adopted by Council as part of the Code and
that to his knowledge the Handbook had not been adopted.
Mr. Torgerson stated it was common practice for the Building Plans Reviewers to consult the
Handbook when there were questions about the Uniform Building Code. He stated the Reviewers
referred to the Handbook when discussing whether these were mezzanines. He stated the diagrams
included in the Handbook clearly showed entirely enclosed mezzanines, which the project's
mezzanines were not, since they were open to the floor below with open railings, and that the
Handbook also showed ceilings sloping down that were clearly low at the bottom and high at the top
with a small mezzanine within it. He stated he entered this into the record because Mr. Reeves
inaccurately characterized what the Building Code said about mezzanines. He stated Mr. Reeves
indicated that whether the square footage was half of the room that it was within had never been
determined, and that this was not true. He stated this was also shown on the plans submitted as a
part of the submittal.
City Attorney Roy asked if the Mayor had ruled on the objection.
Mayor Hutchinson stated he would like some guidance from the staff on whether the information
regarding the Handbook was admissible. He asked if there was a close enough relationship between
November 29, 2005
the Handbook and the Building Code to allow the information to be presented. Byrne stated the
Handbook was consulted by staff in determining how the Uniform Building Code was to be applied.
Mr. Torgerson stated he presented the information to rebut Mr. Reeves' statements.
Councilmember Ohlson stated he needed clarification since there was an earlier ruling that the
diagram was not admissible and it was in the information the Council had just received as "part of
the record."
City Attorney Roy questioned whythe diagram was attached to the Handbook provisions i.e. whether
it was part of the Handbook.
Mr. Jones stated there was a 411-page diagram in the packet.
City Attorney Roy asked if the diagram was part of the Handbook.
Mr. Jones stated it was not.
City Attorney Roy stated it was a separate exhibit that was already disallowed except in response to
any Council question. He stated it should be taken off at the least. He stated this was an
administrative hearing where the rules of evidence were different than those in a court of law. He
stated the purpose was for Council to gather the information needed to understand the issues and to
make a decision about what the intent of the Code was, and whether it was properly interpreted. He
stated in fairness to all of the parties, they needed to have an opportunity to see and understand and
respond to whatever the Council was given that the Council was going to consider. He stated within
those general parameters, if any one of the Councilmembers believed that the Handbook was helpful,
then he or she should ask for it and it would be admissible. He stated, absent such a request, because
it was not in the record it technically should be excluded at this point.
Councilmember Kastein asked how objections were to be handled. He stated it seemed
"counterproductive" to hear objections with the 30-minute time limit. He stated the objections
seemed legitimate and had bearing on the discussion. He asked what the formal process was to
handle this. City Attorney Roy stated the process was what was being done to allow the parties -in -
interest who were present to make their concerns or objections known. He stated the objection and
the ruling needed to be placed on the record and the time to do that should not come out of the
allotted time for the presentation. He stated past practice was being following in that regard.
Councilmember Roy asked for clarification regarding a memorandum dated November 23' stating
that: "Any written materials that any party -in -interest may wish the City Council to consider in
deciding the appeal should be submitted to the City Clerk no later than 12 o'clock p.m. on the
Wednesday immediately preceding the date upon which the hearing on the appeal is scheduled to
be held." He asked how this applied to materials that were now being submitted to the Council. City
Attorney Roy stated insofar as the written materials presented new evidence, they were still subject
to the rules that had been discussed. He stated written material should be given in advance but that
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if the material included new evidence, it would be subject to the same objection and the same rules
that had been discussed.
Mayor Hutchinson asked if the submission of this material that came from a Handbook and was not
part of the original process should not be admitted unless a Councilmember asked for it. City
Attorney Roy stated that was correct and that the first exhibit should be marked Exhibit 1 for the
record (the diagram that had been rejected earlier) and that this should be Exhibit 2 for the record.
Mr. Torgerson stated it was his understanding that new information could be presented if it was to
refute incorrect information that was given.
Mayor Hutchinson asked the City Attorney to respond.
City Attorney Roy stated under the Code, new evidence was not to be considered except under the
following circumstances: when offered in support of or in opposition to an allegation under 2-
48(2)(C) (which referred to the notice of appeal) that the board, commission or other decision -maker
considered evidence relevant to its findings which was substantially false or grossly misleading. He
stated he read this to mean that if there was an appeal that contained that kind of allegation, the
parties were on notice that there could be new evidence submitted. He stated in this case, new
information was offered in rebuttal to statements made at the hearing and that in his view that
exception did not apply, although the new evidence could come in under the other exception if the
Council believed that it was relevant. He suggested that Mr. Torgerson continue his remarks and
that the Council address whether Council wanted to hear the new evidence under Council questions.
Mr. Torgerson stated the information previously referred to was part of the Council packet that was
downloaded from the City's website. He stated the information that he just handed out was "altered"
in the sense that it had a different roof pitch and the walls were "narrowed in." He stated the
information handed out was exactly the same as the information in the Council packet except for
those two things.
Mr. Jones stated in rebuttal, that Mr. Reeves had suggested that the project be remanded to the
Hearing Officer to have the Hearing Officer consider the Uniform Building Code. He stated the
appellant suggested that to the Hearing Officer originally, and that she chose not to. He stated it
would be inappropriate to remand because the Hearing Officer already had the opportunity to
consider the Uniform Building Code and chose not to.
City Attorney Roy stated if Ms. Williams wanted to say anything in response to what was said earlier
this would be an appropriate opportunity to do so.
Ms. Williams stated one of the speakers against the project indicated that the building and its
windows would be objectionable to those who walked in the Park. She stated she walked and biked
alone in the Park and that she would find windows overlooking the Park "comforting" because that
would contribute to safety.
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Mayor Hutchinson stated parties -in -interest in opposition to the appeals would have 10 minutes for
rebuttal.
Mr. Wurz stated the issue was "providing a diversity of opportunities to the citizens of Fort Collins"
and that there were numerous places near downtown and in the neighborhood where people could
walk where there were "plenty of windows and plenty of people around" while there were very few
places to walk without the infrastructure of an urban area around. He stated the eastern edge of Lee
Martinez Park was one of those few places. He stated there should be some space where people
could have the "illusion of being in a natural area." He stated in response to Mr. Torgerson's
comment regarding "hypothetical projects", if there was no approval, there was no project, and at
this time there was no Discovery Center or 115 foot building to the south. He stated the appellants
were asking for a modification of the over 40-foot rule if this was not ruled a three-story building.
He stated it was appropriate to talk about the effects of the height of this building on the park. He
stated he had no objection to a building on this site that would "fit in better" and that would "have
more of a context" with the surroundings.
Mr. Reeves stated Mr. Torgerson suggested that he misrepresented the definition of "mezzanine" in
the Uniform Building Code. He stated he had copies of that information available. He stated the
Handbook referenced by Mr. Torgerson was properly considered, but not in the context of this
proceeding. He stated it was something that should probably be considered on a remand. He stated
it would be appropriate for the Council to remand this to the Hearing Officer. He stated the Hearing
Officer did not consider anything relating to the Uniform Building Code. He stated Mr. Jones'
concern that the Hearing Officer made a mistake in not considering the Uniform Building Code was
"misplaced", since the Council could order her to consider these issues under the Uniform Building
Code and could find that she erred in relying solely upon the Land Use Code.
(**Secretary's Note: The Council took a recess at this point in the meeting.)
Mayor Hutchinson stated he would open the hearing to Council questions.
Councilmember Weitkunat asked for clarification about three connected words that were being used:
"stories, mezzanines and height." She stated she believed those words were interconnected with this
project and that the confusion was "how" they were interconnected. She asked why "stories" were
being addressed instead of"numbers" in this particular proposal. She stated the question before the
Hearing Officer was whether this was three or four stories as opposed to whether this was 25, 50 or
69 feet. She asked why "stories" was being used rather than a number and if there was a definition
for "story" and whether that implied a number. She stated she believed this was a "premise on which
a lot of this was built." Byrne stated "stories" was used rather than specific feet and that a "story"
was defined as floor -to -floor in a building. He stated "stories" were included as height limits rather
than specific feet to allow design flexibility in the zone districts. He stated there was a Code limit
of25 feet and that there were administrative interpretations that indicated that in a residential district,
there were design standards involving relation to the neighborhood. He stated this was not the case
here because this was a Commercial zone. He stated even though the Code would allow a 25-foot
story it was not desirable to have a 50-foot two-story building next to a single-family home. He
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stated there was some flexibility but that there were ways to apply compatibility within certain
zoning districts.
Councilmember Weitkunat asked if the standard for a "story" instead of a height was being applied
to this particular project in this particular non-residential CCR district. She asked if it was true that
it did not matter how big that "story" was. Byrne stated it could not exceed 25 feet. He stated the
supplemental regulations provided as follows: "No story of commercial or residential building shall
have more than 25 feet from floor -to -floor."
Councilmember Weitkunat asked if this was a three-story building, could it have been 75 feet in
height. Byrne replied in the affirmative.
Councilmember Weitkunat noted that if this was determined to be a four-story building it could not
exceed the 75 feet and that each story would have to be less than 20 feet. Byrne stated each story
could not exceed 25 feet in zoning districts where the number of stories would be compatible.
Councilmember Weitkunat stated "technically" the number of stories should not be an issue. Byme
stated this particular zoning district had a limit of three stories.
Councilmember Weitkunat asked if that is why there was an issue about the number of stories.
Byrne replied in the affirmative and stated this was also the reason for discussion about whether a
larger building that would have more mass and would comply with the three-story limit (25-foot per
story limit) would be more compatible than a proposal for a shorter building with mezzanines.
Councilmember Weitkunat stated one photo showed the three-story building that would "fit in."
Byrne stated it would technically meet the upper limits of that particular zoning district and the
height limitation of the Code i.e., it would be as "big as you could make it."
Councilmember Weitkunat asked about the variation for height (the modification of 3.5.1) and how
that applied to this discussion. Byrne stated that would apply only if the Council decided that this
building as proposed exceeded three stories. He stated if it was a three-story building, the Council
would not need to modify the standard.
Councilmember Weitkunat stated the issue was height and how the modification would apply if the
building was not three stories. She asked if a modification would need to be requested under the
Land Use Code. Byrne replied in the affirmative and stated the decision -maker would look at the
factors that were presented under one of two processes.
Councilmember Weitkunat asked if this was considered by the Hearing Officer. Byrne stated the
Hearing Officer did consider that issue and that the applicant did present some information. He
stated the Hearing Officer did include in her decision, a discussion of modification and whether or
not the alternative building would have been more appropriate. City Attorney Roy stated even if the
building was considered to be three stories and a modification was not needed, Section 3.5.1(G)
would need to be consulted because the building would be over 40 feet high.
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Councilmember Weitkunat asked if the fact that this building would be 55 feet high meant that
another Code would have to be consulted. Byrne stated for any building over 40 feet high a height
analysis would be required to ensure compatibility, even if the zoning district permitted a greater
height.
Councilmember Weitkunat asked if analysis should have been required at the hearing because the
building was over 40 feet. Aspen replied in the affirmative and stated since the Hearing Officer
determined that the proposed building was a four-story building, she did not get to the point where
there was a need for the height review. She stated the Hearing Officer did state in her decision that
the alternative design 70-foot building would not meet the special height review and if the original
building was determined to be three stories that, in the Hearing Officer's estimation, the building
would pass that test.
Councilmember Weitkunat stated the Code provided that if a building was over 40 feet it needed to
undergo a special height review. She asked if the Hearing Officer should have heard that discussion.
Byrne stated it was part of the record as part of the initial staff report that the staff did conduct that
analysis. He stated information was before the Hearing Officer.
Councilmember Weitkunat asked if this mezzanine issue was staff s first introduction to the issue
in a development proposal. Byrne replied in the negative and stated mezzanines were "unusual."
He stated this was the first time that staff had dealt with a conflict between the Land Use Code and
the Uniform Building Code.
Councilmember Weitkunat asked if the conflict was in the definitions. Byrne stated the conflict was
whether a mezzanine could be one-third or one-half of the floor area of the room with which it was
associated.
Councilmember Manvel stated he obtained eight definitions of "mezzanine" from the Web and that
two were in the Council packet. He asked what definition of "mezzanine" staff was using. Felix
Lee, Building and Zoning Director, stated definition in the Building Code was: "An intermediate
floor level placed within a room."
Councilmember Manvel asked if there were such intermediate floors placed within a room in this
building. Lee stated the spaces on the floor plans "opened into the rooms in which they were
located."
Councilmember Manvel asked if the gray areas in the three diagrams represented the three
mezzanines. Lee replied in the affirmative.
Councilmember Manvel asked if each of those gray areas sat in a room on each floor of the building.
Byrne stated there was more than one room on each floor of the building and more than one
mezzanine on each floor of the building.
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Councilmember Manvel asked if every mezzanine by itself was less than one-third of the area of the
room into which it opened. Byrne stated each mezzanine was less than one-half of the area.
Councilmember Manvel stated there were multiple mezzanines and multiple rooms on each floor
and that the floor on the top of the building (which had been called either a penthouse or a
mezzanine) was first determined not to be a mezzanine by staff and then at the last minute was
determined to be a mezzanine. He asked if there was a penthouse on top of a building and a one -foot
square was cut in the floor of the penthouse if that would be a "mezzanine" if the room below it was
large. Byrne stated the under the Building Code the mezzanine did not need to be open to the floor
below and that it may be entirely or partially enclosed by walls, it may be on more than one plane,
and it may be broken up into several different floor areas and still constitute a mezzanine that was
less than 50%.
Councilmember Manvel asked if what he had described would be a mezzanine. Byrne replied in the
affirmative and stated the purpose statement in the Building Code for the limitations placed on
mezzanines were: (1) so that if there was a hazard situation such as a fire that people who occupied
the mezzanine would be aware of it; and (2) so they could get out. He stated the local amendment
to the Building Code that expanded the floor area from one-third to 50%, was done specifically in
response to induce sprinklering of residential buildings for fire protection. He stated if they did,
there was a "bonus" of going from one-third to one-half of the floor area for the mezzanine. He
stated staff considered all of those purpose statements and definitions and various diagrams in
making that decision, and the decision did come fairly late in the process.
Councilmember Kastein asked if staff had any diagrams that would help to show the cross section
or in any other way describe the tiering, especially in the top floor with the mezzanine above it.
Byrne stated there were backup slides that were drawn from the Handbook that he had relied upon
but which had been disallowed to this point.
Councilmember Kastein asked staff to show those slides.
City Attorney Roy asked if these would be part of what had been referred to as Exhibit 2. Byrne
stated they were part of the Uniform Building Code Handbook, which was earlier referred to and
which was not adopted by the Council but which was used by the Plans Examiners and him. City
Attorney Roy requested that Byrne be given an opportunity to look at Exhibit 2 to make it clear for
the record what was being submitted. Byrne stated the information he would be presenting was part
of Exhibit 2. City Attorney Roy stated whatever portions Byrne would refer to in response to
Councilmember Kastein's question should receive a check mark or other mark to identify the
portions used to respond to the questions as distinguished from the entire Exhibit 2 which was earlier
excluded. Byrne stated the diagram shown on the screen was included in the handout that was given
to the Council. He stated this was one example of a permitted mezzanine in a building. He stated
it was an intermediate level within a room, and in this particular case it was partially enclosed. He
stated there was a note that talked about occupant loading, and this referred to the safety purpose
statement in the Building Code. He stated another diagram being presented showed multiple
mezzanines within one very tall room that showed multiple intermediate floors, all of which cannot
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exceed 50% of the floor area of the room with which they were associated. He stated the next slide
showed a plan view with several different mezzanine areas, all at the same level.
Councilmember Kastein stated the first diagram helped a lot. He asked if there was a slide that
related to the specific application. Byrne stated the floor plans shown by Aspen were difficult to read
at the scale shown on the screen. He stated staff reviewed the plans to determine how the levels
related to the floor below, whether there were openings, whether they were entirely enclosed, and
what the access and loading would be. He stated in some cases the mezzanine area might actually
be over a corridor or hallway. He stated he specifically asked the Building Official and the Plans
Examiner whether that was permitted, and staff went to the purpose statement to determine if those
areas could be made safe. He stated staff determined that these were permitted.
Councilmember Kastein asked if the Hearing Officer had the authority to determine that it was not
a mezzanine and that it was a floor. City Attorney stated the Land Use Code provided that the
Director had the authority to go supplementary sources and that the Hearing Officer had the same
latitude to use the UBC definition or other sources.
Byrne stated he wanted to amend the answer he gave to Councilmember Manvel's question about
a one -foot opening. He stated a one -foot opening would not work because there needed to be
adequate exiting, stairways, and doors. He stated the Handbook showed a mezzanine that was
entirely enclosed and was entirely above a room.
Councilmember Manvel stated staff appeared to be counting things associated with a room that did
not lie entirely above a room. Byrne replied in the affirmative.
Councilmember Manvel asked if staff was therefore following the exact definition of mezzanine,
which was "an intermediate floor placed within a room." Byrne stated staff believed that the
interpretation was correct.
Councilmember Manvel asked whether staff was not exactly following the rule that mezzanines must
lie within a room. He stated most people would consider extending the room upward as "within the
room" and staff was not going according to that rule. Byrne stated this was correct.
Mayor Hutchinson asked for confirmation that the Hearing Officer was allowed to go to any source
for definitions and, if so, why there was concern about the definition of "mezzanine" since nobody
could say that whether or not the Hearing Officer's definition was correct. City Attorney Roy stated
the Council could say whether it agreed with the Hearing Officer's interpretation of what a
mezzanine was intended to be in the context of the Land Use Code. He stated this was ultimately
Council's decision. He stated that in trying to interpret the law as written Section 5.1.1 of the Land
Use Code said: "For words, terms and phrases used in the LUC that are not defined, the Director
shall have the authority and power to interpret or define such words, terms and phrases." He stated
this also set forth the kinds of secondary sources that could be consulted. He stated the Director
recommended a particular interpretation based upon a definition in the Uniform Building Code, and
that the Hearing Officer chose instead to go to another definition of "mezzanine" as the basis for
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her decision. He stated it was up to the Council to decide whether she used the right definition, what
definition the Council would use, and how that would play out in the context of this development
and whether or not it was a three-story development.
Councilmember Manvel stated the definition used by the Hearing Officer from the Webster's
dictionary was: "Mezzanine is a low ceilinged story between two main stories of a building,
especially an intermediate or factional story that projects in the form of a balcony over the ground
story." He stated if that definition was used the third floor did not qualify. Byrne stated he did not
see a difference in the first, second, and third floors in terms of how those mezzanines related to the
rooms below.
Councilmember Manvel stated the Webster's definition did not refer to the room below and referred
to a story between two main stories. He stated it sounded like you could not have a mezzanine on
the top floor. Byrne stated if this was a four-story building, a mezzanine on the third floor would
be a mezzanine between two floors.
Councilmember Kastein asked about the Code provision that set forth the sources to use when
something was not defined. City Attorney Roy stated it read: "For words, terms or phrases used in
the LUC that are not defined in Section 5.1.2 below or elsewhere in the Land Use Code, the Director
shall have the authority and power to interpret or define such works, terms and phrases. In making
such interpretations or definitions, the Director may consult secondary sources related to the
planning and legal professions, such as Black's Law Dictionary, A Survey of Zoning Definitions,
Planning Advisory Service Report #421, The New Illustrated Book of Development Definitions for
technical words, terms and phrases, or Webster's Third International Dictionary for other words,
terms and phrases." He stated the Hearing Officer apparently considered the word "mezzanine" not
to be a technical word, term or phrase and went to Webster's Dictionary.
Councilmember Kastein stated he did not hear the Uniform Building Code in those examples. Byrne
stated it was not included in the list of examples. Paul Eckman, Deputy City Attorney, stated the
Director had the authority to interpret and "may" (rather than "must") refer to the sources. He stated
the Director could use his or her own logic in making an interpretation. City Attorney Roy stated
this was not intended to be an exhaustive list of potential sources. He stated it was reasonable to say
that the UBC was "related to the planning and legal professions" and was a therefore a legitimate
secondary source.
Councilmember Kastein noted the appellant had indicated that the UBC standards for a mezzanine
must be met in the final development review process and asked if this was correct. Byrne stated staff
considered the entire review process to be one process. He stated staff was concerned about
consistency throughout the process among departments. He stated he read the list of potential
secondary sources "broadly" and also considered that Council had adopted the UBC and had not
adopted Webster's Dictionary.
Councilmember Kastein stated he was concerned that the earlier staff decisions were contrary to the
decision made by Byrne and that this showed some inconsistency.
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Councilmember Weitkunat stated the definition of "mezzanine" from the UBC was entered into the
record as one that was coordinated among the different departments. Byrne stated staff discussed
this prior to the hearing.
Councilmember Weitkunat stated it was entered into the record that staff was using the UBC
definition and it appeared that the Hearing Officer was aware staff had been discussing the UBC
definition.
Councilmember Kastein stated the Hearing Officer asked the question at the hearing about why the
definition was different at the time of the hearing than it was previously. Byrne stated he "stepped
in at the last minute" because staff members from two different departments were giving the
applicant two different answers. He stated he believed it was better to "make the call" before the
hearing rather than at the hearing.
Councilmember Ohlson asked if the Council had received information on downtown building
heights or if such information was available. City Manager Atteberry stated staff had prepared such
information. Byrne stated staff could present a diagram that had been seen earlier showing height
limitations on various blocks in the Downtown Strategic Plan, and the applicant had presented some
information at the original hearing that was shown earlier.
Councilmember Ohlson stated he would prefer hearing the City's information rather than relying on
the applicant's information. Byrne showed a slide depicting height limitations from the new
Downtown Strategic Plan. He stated the zoning districts all had a very high height limitation and
that there was a controversial project on the old Steele's Grocery store site that was well within the
height limitation of the zoning district. He stated that gave rise to this part of the Strategic Plan
relating to block -by -block limits on heights and stepping those heights down into the surrounding
neighborhoods. City Manager Attebeny asked if the numbers on the map were maximum heights
rather than actual heights and whether actual building height information was available.
Councilmember Ohlson asked about the height limitation for this site. Byrne stated the site was not
part of the Downtown Strategic Plan or downtown zoning district area and that the height limit was
three stories. He stated the site was in the CCR district.
Councilmember Ohlson asked why heights were listed in certain areas and why stories (with a
"ragged definition") were indicated in other areas. Byrne stated the purpose was to allow flexibility
of design i.e., a story did not have to be a specific number of feet.
Councilmember Ohlson asked about the 25-foot height limit for a story. Byrne stated that was the
maximum for a story in a commercial or residential building.
Councilmember Ohlson stated he thought that the material indicated that the 25-foot height limit was
written in for commercial/industrial uses. Byrne stated the following Code provision was applicable:
"No story of a commercial or residential building shall have more than 25 feet from floor to floor."
November 29, 2005
Councilmember Ohlson stated the material explained the history of that provision i.e. to
accommodate industrial and commercial. Byrne stated two administrative interpretations done by
Cameron Gloss in the last two years specifically addressed contextual height and how the 25-foot
maximum was to be applied. He stated part of that discussion did have to do with industrial and
commercial buildings. He stated one of those interpretations included a "presumed height
limitation" of 12 feet six inches in residential districts.
Councilmember Ohlson stated he wanted to know specific heights for other buildings, such as the
City's downtown office building, the Northern Hotel, the County Office Building, and the County
Courthouse. Byme stated the applicant's presentation to the Hearing Officer was that the City
building was 54 feet high, the Northern Hotel was 49.5 feet high, the County Office Building was
110 feet high, and the County Courthouse height was not listed.
Councilmember Roy asked if the Mason Street North project was all offices or residential. Byrne
stated it was a mixed use project containing preponderantly residential units.
Councilmember Roy asked for the location of Mason Street North on the site map. Byrne pointed
out the location.
Councilmember Roy asked how many feet Mason Street North would be from the site. Byme stated
it would be approximately 400 feet away.
Councilmember Roy stated he thought it was closer than that and the point was that there was a
residential section being built right now next to this site. He asked about Mr. Jones' characterization
of the general height of the Mason Street North buildings as 2%2 stories and whether staff agreed with
that assessment. Byrne stated there were some buildings that were shorter and others that were
higher.
Councilmember Roy stated Council was told that the 2'/2 stories was equal to 39 feet. Byrne stated
this was the height according to the plans.
Councilmember Roy asked if the other half story of the three-story Cherry Street Station would be
about 30 feet. Byrne stated the floor -to -floor heights were different.
Councilmember Brown asked for confirmation that three stories were authorized in the zone district
and that each story could be 25 feet. Byme replied in the affirmative.
Councilmember Brown asked if according to the Uniform Building Code Handbook (Exhibit 2) this
was a mezzanine. Byrne stated was staff's recommendation to the Hearing Officer and that it was
his interpretation that it was a mezzanine.
Councilmember Brown asked how often the dictionary was used instead of the Uniform Building
Code Handbook to get definitions. Byrne stated this was done infrequently.
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Councilmember Brown asked if the Uniform Building Code was "the bible." Byrne stated it was
as far as construction of buildings.
Councilmember Kastein stated he was ready to make a motion on one of the decisions.
Mayor Hutchinson suggested that Council first address the three or four story issue.
Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to find that the
decision maker failed to properly interpret and apply relevant provisions of the Land Use Code in
determining that the structure is four stories instead of a three-story structure, and to determine that
the structure is a three-story structure.
Councilmember Kastein stated there were definitions that "competed and compared to some extent."
He stated the UBC seemed to be fairly detailed and it was used frequently. He stated it could be
interpreted that the level being discussed was a mezzanine. He stated the definition of "mezzanine"
was fairly clear in the UBC.
Councilmember Manvel stated he believed that if the literal definition in the UBC was followed, this
would be a six -story building. He stated most of these mezzanines were not entirely above the room
with which they were associated. He stated if this definition was to be used that it should be
followed literally. He stated he opposed the motion.
Councilmember Ohlson stated he would like to discuss other related issues at this point. City
Attorney Roy stated it was up to the Mayor to determine if comments were relevant to this particular
motion.
Mayor Hutchinson stated he would like to dispose of the motion on the table.
Councilmember Ohlson stated this seemed to focus on one aspect of the Code and that there were
other important aspects of the Code relating to context to the neighborhood, buildings overlooking
public spaces and private spaces, etc. He stated the motion focused on one aspect and that City staff
had chosen to ignore other aspects of the Code that were being broken.
Councilmember Weitkunat stated the difference was that this was an appeal and that the Council
needed to work with the information that had been presented in the appeal. She stated the appeal
dealt with mezzanines and height issues.
Councilmember Ohlson stated the City Attorney had indicated to him that if he chose to uphold the
Hearing Officer's ruling, his other comments about height, scale and mass and other Code provisions
could be shared with the Council. City Attorney Roy stated if the Council chose to uphold the
Hearing Officer's decision, it would be a straightforward matter and there would be no need to make
a new record in support of that decision. He stated if the Council disagreed with the Hearing
Officer's decision, it would be important to point out the relevant provisions of the Code that the
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Council believe she misinterpreted and misapplied. He stated it was his understanding that Mr.
Ohlson believed there were other relevant provisions of the City Code that applied to this
development that were improperly interpreted and applied. He stated staff had suggested one
framework for discussion and the Code indicated that the Council should decide this based upon the
Notice of Appeal, the grounds stated, the record and the relevant provisions of the Code. He stated
he would suggest that Councilmembers be given a reasonable opportunity to comment on those
provisions of the Code that they believe were applicable and misconstrued. He stated he would
suggest that each Councilmember have that opportunity at some point in this decision -making
process.
Councilmember Kastein stated he made the motion to consider three stories rather than four and the
next decision would be the standards of special height review, including building height, mass, bulk
and scale. City Attorney Roy stated there were two issues: the ability to discuss any relevant
provisions of the Code at this hearing and dealing with a particular motion and limiting discussion
to those comments that were germane to the motion. He stated all Councilmembers should have an
opportunity to speak to any Code provisions that they believed were relevant and misinterpreted at
some point in the process.
Mayor Hutchinson stated the motion was that the decision -maker failed to properly interpret and
apply relevant provisions of the Land Use Code and the Council needed to provide criteria as to why
that was the case.
Councilmember Manvel asked that before voting on the motion, Councilmembers explain what
definition of "mezzanine" they were applying.
Councilmember Roy stated he would not support the motion because this height in this zone district
was "counter to any sensible Land Use Code." He stated allowing this to be a four-story building
would be counter to what the City wanted to create in this district.
Councilmember Manvel stated the definition may be a technical matter and that the definition used
should be technical or based on "common sense." He stated few people would not apply common
sense to this and classify the floor above the third floor of the building as a mezzanine. He stated
what was sitting on top of this building was not a mezzanine according to common sense or the
dictionary definition. He stated there was therefore a need to go to the technical definition in the
Uniform Building Code and the person applying that definition stated it did not really meet that
definition, but it would be called a mezzanine anyway. He stated this would not satisfy the technical
definition or the common sense every day definition.
Councilmember Kastein stated the technical definition was considered by the Planning Director and
based on the definition in the UBC, it was a mezzanine. He stated the Hearing Officer used the non-
technical definition out of Webster's dictionary and this did not necessarily apply to a Building Code
at all. He stated he disagreed with Councilmember Manvel.
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Councilmember Manvel stated he and Councilmember Kastein agreed that the common sense or
dictionary definition did not satisfy. He stated his questions of staff had determined that the
mezzanines need not lie within a room if the area of the mezzanine was extended down below it.
He stated this was what it said in the technical definition.
Mayor Hutchinson asked that staff respond. Byrne stated he understood Councilmember Manvel's
interpretation. He stated he had explained the "common sense reasoning" applied to a mezzanine
based on the purpose set forth in the Building Code relating to hazards and getting people out safely,
rather than whether or not the wall was "entirely vertical." He stated he had attempted to be
"transparent" in setting staffs reasoning and that "it had nothing to do with pushing the project
through." He stated the issue was conflicting information and trying to go back to the purposes of
the regulations to make a decision that would meet those purposes. He stated if staff had
misinterpreted, it would be helpful to have the Council indicate that there was a misinterpretation.
Councilmember Manvel stated a decision had been made using the technical definition and that
common sense was being applied to the technical definition. He stated this was a "convoluted path
to get to an outcome" that the City wanted. He stated he disagreed with the process.
Councilmember Kastein stated the City was not trying to get to a desired outcome. He stated it was
not a foregone conclusion that the project would pass if it was three or four stories. He stated either
way, the Council must then decide if the project met the standards of special height review.
Councilmember Manvel stated the first decision was whether the thing on top of the building was
a story or not, and that he believed that a "stupid" precedent was being set if this was determined not
to be a story. He stated there were enclosed mezzanines and decks, which would be unenclosed
mezzanines above the other half of the third floor. He stated in some sense the whole floor was a
mezzanine. He stated he did not believe that this was a mezzanine under the technical and common
sense definitions.
Councilmember Weitkunat stated part of the difficulty was that this was not "normal and customary"
and the "mezzanine" in a residential development was a difficult concept for a layperson to
understand. She stated she viewed it as a "loft" or a "level." She stated the second difficulty was
that the tendency was to address this in terms of feet of height rather than by mezzanine or story.
She stated this "creative stuff' was confusing because it did not fit previously understood rules,
butthe Code had to have built-in flexibility to allow for creativity in design and planning and variety.
She stated this project was "strange and different" and represented "new territory." She stated it may
be time to address such issues in terms of feet of height. She stated if it was not time to do that, it
was necessary for everyone to understand that the City was working through definitions and this
particular zone allowed for some flexibility by addressing height in terms of stories. She stated this
particular project worked through the mezzanine concept and she trusted staffs interpretation of
what went on. She stated she was pleased that the two departments spoke to each other. She stated
this was something that the Council needed to work through, perhaps at a later date, in talking about
flexibility in the Code and whether the Council wanted these "creative attempts that were painful."
She stated she saw this as moving forward to try to work through the Code while utilizing the
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available tools to build development that was appropriate and meets some of the intended creativity
and flexibility.
Councilmember Ohlson stated for the record he liked "strange and different" as well. He stated the
problem was that there were "normal expectations" by people such as neighbors to the project. He
stated the average person would not expect three stories to be 69 feet tall. He stated he would have
suggestions, possibly under Other Business, to set height limitations and "respect creativity" within
those limitations. He stated a 69-foot three-story building would not "pass any rule of common
sense."
Councilmember Roy stated he agreed with Councilmember Ohlson. He stated everyone on the
Council wanted to find a way to allow different sorts of projects to come forward that "made sense."
He stated creativity incorporated "sensitivity to the neighborhood, the environment and view shed."
He stated this particular project ignored the wishes and needs of the neighborhood, obstructed an
important view shed and created a "heavy" structure where creativity was needed in a transition zone
rather than a "statement of extravagance and opulence and arrogance in design." He stated creativity
should incorporate all of the other aesthetics.
Mayor Hutchinson reminded the Council of the wording of the motion. He stated some of the
comments would be appropriate in the next step.
Councilmember Manvel stated voting to make this a four-story building instead of a three-story
building would be agreeing with the Hearing Officer and would not end this process. He stated it
was "disturbing" that people were willing to "bend, not give or ignore" the definition of"mezzanine"
and were not indicating why they believed this was not a story. He stated he supported a
determination that this was a four-story building and considering the building on its merits. He
stated this would be a "broader" and "richer" discussion than deciding that this was a three-story
building. He stated he agreed with Councilmember Ohlson that most people would not think a three-
story building would be 69 feet high.
Mayor Hutchinson stated the Council had to look at this issue "narrowly" based on what existed in
the Land Use Code and the various interpretations that had been made. He stated for purposes of
this motion, Council could not look at whether the building would fit the community. He stated he
hoped Council was sending a message that this area of the Land Use Code and in the standards
needed some clarification without "stifling creativity." He stated he heard clearly that the Hearing
Officer did not use the UBC to define "mezzanine" and that it was appropriate for the City staff to
define the UBC as a single source for use of all departments. He stated that should have been done
in this case. He stated he would support the motion.
The vote on the motion to find that the decision maker failed to properly interpret and apply relevant
provisions of the Land Use Code in determining that the structure is four stories instead of a three-
story structure, and to determine that the structure is a three-story structure was as follows: Yeas:
Councilmembers Brown, Hutchinson, Kastein and Weitkunat. Nays: Councilmembers Manvel,
Ohlson and Roy.
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THE MOTION CARRIED.
Mayor Hutchinson asked about the next step outlined on the flow chart. He stated it addressed the
project meeting the standards of special height review. He stated he believed that this was beyond
the scope of what the Council was considering in this appeal. He asked if it would be appropriate
for the Council to consider remanding the special height review process to the Hearing Officer since
the review process was called for and there were seven criteria to apply. He questioned whether the
Council should try to apply those criteria or send the matter back to the Hearing Officer. City
Attorney Roy stated he would first clarify the standards that were applicable even though the Council
had made a determination that it was a three-story building. He stated the diagram stated it was now
subject to the standards of special height review under Section 3.5.1(C). He stated he believed that
Section 3.5.1(A-F) and the portions of (G) calling for a review because it was over 40 feet in height
were now applicable. He stated Subsection G(1) was definitely applicable because the building was
taller than 40 feet.
Mayor Hutchinson stated the appellant had said that if the Council determined the building to be
three stories, nothing else would need to be done. He noted that staff s flow chart indicated that if
the Council determined that the building was three stories, the next step was to determine if the
project met the standards of a special height review. City Attorney Roy stated while staff was
looking at that question, he would respond to the Mayor's question about the appropriateness of
remanding. He stated if the Council believed that the discussion on pages 6-7 of the Hearing
Officer's findings indicated that she did not adequately address these additional review criteria,
remanding would be appropriate, or the Council could interpret and apply those criteria and indicate
whether it would agree or disagree with the denial of the project after applying the criteria.
Councilmember Weitkunat stated that according to the administrative hearing findings (page 6) the
Hearing Officer already found the three-story building did not comply with Section 3.5.1. Deputy
City Attorney Eckman stated the Hearing Officer was saying a 70-foot three-story building did not
comply in paragraph B in her summary of conclusions. City Attorney Roy stated it might be helpful
to hear from Mr. Torgerson.
Mr. Torgerson stated the front page of the packet he had given to the Council (Exhibit 2) was copied
directly from the Hearing Officer's decision. He stated the part that was underlined showed that the
Hearing Officer did find that the project complied with Section 3.5.1(G) of the Land Use Code.
Councilmember Kastein stated this material indicated a building with a facade of 70 feet to the top
of the cornice did not comply with the special review criteria.
Mr. Torgerson stated this was not the proposed design and this would be the second building shown
in the context of the modifications. He stated the Hearing Officer found that the proposed design
did meet the Land Use Code criteria.
Mr. Jones stated the staff memo and Mr. Reeves also indicated that this was the case.
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Mr. Reeves stated the Hearing Officer did find that Mr. Torgerson's project complied with
3.5. 1 (G)(1)(a) but that she went on to consider whether it complied with 3.5.1(G)(1)(C) because her
finding was that it required a height modification because it did not conform with the zone district
since it was four stories rather than three. He stated Council had found that it was three stories and
therefore, if Council declined to review the Hearing Officer's findings with respect to 3.5. 1 (G)(1)(a),
there was nothing further for Council to do. He stated Mr. Wurz had taken exception to the Hearing
Officer's findings under 3.5. 1 (G)(1)(a). He stated his briefing took exception to 3.5. 1 (G)(1)(C) and
did not raise any issue with respect to 3.5.1(G)(1)(a).
Councilmember Manvel asked if the Council could consider the Hearing Officer's decision that
3.5.1(G)(1)(a) was satisfied and decide whether the Hearing Officer decided correctly. CityAttomey
Roy asked if either appeal raised the question of whether or not the Hearing Officer properly
interpreted and applied 3.5. 1 (G)(1)(a).
Mr. Jones stated the first appeal did raise that question and the appellant misunderstood her findings.
He stated after determining that the Hearing Officer found that the project complied, the second
allegation was being withdrawn.
City Attorney Roy asked if either appeal questioned the appropriateness of the Hearing Officer's
findings with regard to any other part of 3.5.1.
Mr. Torgerson stated this was as related to (C) and he did not know the status of 3.5.1(A).
City Attorney Roy noted the question was raised in the Notice of Appeal about (G)(1)(a) and the
appellant was presently withdrawing that allegation. He questioned whether or not there was an
issue on appeal about any of the other standards because this was to be decided on the basis of the
grounds stated in the Notice of Appeal.
Mr. Jones stated the staff report indicated the finding of the Hearing Officer was that the project
complied with 3.5.1 and the appellant, after understanding that this was the finding, agreed with that
finding.
Deputy City Attorney Eckman stated the allegation of the second error was that the Hearing Officer
concluded that a maximum height of 70 feet did not comply with Section 3.5.1(C) and did not meet
the criterion of 3.5.1(G). He stated he had understood the appeal was raising the allegation that both
3.5.1(C) and (G) were improperly interpreted.
Mr. Torgerson stated the Hearing Officer did find that the project complied with (G) and was silent
on compliance with (C).
City Attorney Roy stated it seemed that what was at issue that the Council should address, unless the
Council wanted to remand to the Hearing Officer, was 3.5.1(G)(1)(C) and (1)(g) relating to building
size, height, bulk, mass, scale and the building height. He stated this would focus on the issue on
this appeal. He stated, whether mistakenly or not, both issues were included in the appeal. He stated
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if the Council believed that there was adequate evidence in the record to decide whether this three-
story building met 3.5.1(C) and 3.5. 1 (G)(1)(a), then the Council should make a decision about that.
He stated if the Council did not believe there was adequate information about those issues, he would
suggest remanding to the Hearing Officer.
Mayor Hutchinson stated he believed that there was enough information for the Council to judge
the findings of the Hearing Officer on these matters. He stated he did not believe that remanding
was appropriate.
City Attorney Roy stated if any Councilmember wanted to make a motion to remand or a motion to
make a finding, this was the prerogative of each individual Councilmember.
Mr. Torgerson asked that the Council not remand this to the Hearing Officer.
Mayor Hutchinson stated Council had the materials needed to consider the issue.
Councilmember Weitkunat noted that the summary conclusions from the findings of the
administrative hearing Point B said the three-story building with a maximum height of 70 feet did
not comply with 3.5.1(C) or meet the criterion in 3.5.1(G). She asked if the three-story building was
a different building and if that finding was addressing the building as originally presented without
discussion of mezzanines. She noted that (C) addressed the proposal with four stories, which was
how the Hearing Officer addressed the mezzanine. City Attorney Roy stated if the Council believed
that the three-story building was 70 feet in height that it seemed that Point B addressed and made
a finding as to whether or not it complied, and the Hearing Officer said it did not. He stated Council
needed to reach that issue, and if the Council decided that it did comply, the development should be
approved and the decision of the Hearing Officer would be overturned. He stated if the Council
decided that it did not comply, the development should be denied and the Hearing Officer's denial
should be upheld.
Mr. Torgerson stated Point B clearly did not relate to the project as proposed. He stated the alternate
proposal was for a 70-foot tall building and that the Hearing Officer clearly said that the proposed
building complied in page 7 of 9 in her findings. He stated the staff memo and Mr. Reeves had also
indicated that this was what the Hearing Officer decided.
Councilmember Weitkunat stated the Hearing Officer addressed the four-story building in the
modification of the height and said that it did not "further the purpose of the character of the
architectural embellishments."
Councilmember Kastein asked for clarification about the Code sections presented by Deputy City
Attorney Eckman. Deputy City Attorney Eckman explained the handout. City Attorney Roy
reviewed the handout. Deputy City Attorney Eckman stated there had been some discussion about
a 55-foot building and a 70-foot building and the decision of the Hearing Officer found that a
building with a height of 55 feet to the top of the cornice complied with 3.5. 1 (G)(1)(a) [the review
criteria] and then said that a building with a facade of 70 feet to the top of the cornice did not
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comply. He stated staff could clarify whether this was a 55-foot building or a 70-foot building to
the cornice.
Mayor Hutchinson noted Council had two drawings showing those scenarios. He asked that those
drawings be shown again.
City Attorney Roy stated 3.5.1(C) was on page 76 and 3.5. 1 (G)(1)(a) was on pages 78-80 of the
handout.
Mr. Jones stated the building on the right in the slide being shown was given for illustrative purposes
in the context of the modification and that building was 70 feet to the top of the parapet. He stated
the proposed building was 55 feet to the parapet.
Mayor Hutchinson stated this was what the Hearing Officer said complied.
City Attorney Roy noted that the Hearing Officer found that the building with a height of 55 feet to
the top complied with (G)(1)(a) and asked if a finding was made about its compliance with (1)(C)
or 1(g).
Mr. Torgerson stated the Hearing Officer was silent about compliance with numerous portions of
the Code.
Mr. Reeves stated the Hearing Officer did find that the 55-foot structure did not comply with
(G)(1)(C).
City Attorney Roy asked where that was in the record.
Mr. Reeves stated page 7 of 9 of the Hearing Officer's decision found compliance with (G)(1)(a) and
found that it did not comply with (G)(1)(C) because it was a four-story structure. He stated there was
no need to make that finding if it was a three-story structure.
Byrne stated no modification was required.
City Attorney Roy stated the Hearing Officer therefore did not need to go to (G)(1)(C). He asked
if both parties agreed that (G)(1)(C) did not apply.
Mr. Reeves stated (G)(1)(C) did not apply because the applicant did not need a height modification
because the Council had found the building to be three stories.
Mr. Torgerson stated (G)(1)(C) related to a modification and was not necessary.
Byrne stated he agreed that (G)(1)(C) was not necessary.
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City Attorney Roy asked if there was consensus on the height review that was required because the
building exceeded 40 feet.
Mr. Reeves stated Mr. Torgerson raised the issue in his appeal and that consideration was
appropriate. He stated Mr. Wurz did discuss those issues raised in Mr. Torgerson's appeal relating
to (G)(1)(a).
City Attorney Roy asked, given the fact that the three-story building was over 40 feet, if anyone
disagreed with the fact that (G)(1)(a) did apply to this three-story building.
Mr. Reeves stated (G)(1)(a) did apply and the question was whether the Council was willing to
review the determination of the Hearing Officer, that it was satisfied.
City Attorney Roy asked if the appellants agreed that (G)(1)(a) applied because the building
exceeded 40 feet.
Mr. Jones stated the Hearing Officer said that it conformed.
Byrne agreed that (G)(1)(a) applied.
City Attorney Roy stated his suggestion was whether or not the matter was raised in the Notice of
Appeal, the City Council as the final decision -makers, needed to decide whether this proposal
satisfied (G)(1)(a) and the remainder of Council's deliberations should be limited to that issue.
Councilmember Weitkunat asked the City Attorney to state 3.5. 1 (G)(1)(a) for the record. City
Attorney Roy stated this appeared on pages 78-79. He stated this was the review standard: "If any
building or structure is proposed to be greater than 40 feet in height above grade, the building or
structure must meet the following special review criteria: (1) views; (2) light and shadow; (3)
privacy; (4) neighborhood scale."
Councilmember Kastein stated on page 75 there was additional language in 3.5.1(C) that seemed to
relate to what was being discussed. He asked if that could be considered. City Attorney Roy stated
he felt that it was applicable and questioned whether all of the parties and the Development Director
had said it was applicable. Deputy City Attorney Eckman stated he believed that it was applicable
because 3.5.1(C) dealt with building height and was a general criteria that should be looked at. He
stated he was working toward having the Council review this under the applicable criteria and make
a decision regarding whether it met the criteria. He stated he asked everyone on the record about
applicability because if this issue would be appealed, and if parties had waived an objection to what
the Council was doing [skipping (1)(C)], it was probably not an issue on appeal. He stated he felt
that it applied because it talked about building height. Byrne stated he agreed that (C) relating to
building height, mass and scale was applicable in reviewing this particular application.
Councilmember Kastein asked if the appellants agreed that 3.5.1(C) applied.
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Mr. Jones stated the appellant agreed it applied, but the Hearing Officer did not use that as a basis
for denial and this provision was therefore irrelevant to the appeal. He stated the appellant wanted
to withdraw the second allegation because there was agreement on 3.5.1(G)(1)(a) and the only
reference to 3.5.1(C) was in the second allegation, which the appellant was withdrawing.
Councilmember Manvel stated the appellant had brought this up as an allegation to make it part of
the hearing and now wanted to withdraw it, while another party looking at the allegation would still
consider the allegation to be "in play." He stated he did not understand why the appellant should be
allowed to withdraw the allegation.
Mr. Jones stated the allegation was brought up because of a misunderstanding of page 6 of the
Hearing Officer's report. He stated the Hearing Officer's conclusions talked about the taller building
and the appellant mistakenly believed that she was talking about the shorter building. He stated the
Hearing Officer did say that the taller building did not comply with 3.5.1(C). He stated the appellant
was withdrawing the allegation because of the misunderstanding about which building was being
discussed.
Mr. Reeves stated 3.5. 1 (G)(1)(a) was one topic and there was continued discussion about 3.5.1(C).
He stated he did not "know what that is" and that he did know what 3.5.1(G)(1)(c) was and that it
was the modification request. He asked what 3.5.1(C) was.
City Attorney Roy asked that the Deputy City Attorney show Mr. Reeves that Code provision. He
stated he understood the confusion. He stated 3.5.1(C) was generally entitled "Building Size,
Height, Bulk, Mass, Scale." He stated the other provision was a modification of standards that was
not part of the discussion.
Mr. Reeves stated he agreed that the modification of height [3.5.1(G)(1)(c)] would not go forward.
Aspen stated was correct.
Mayor Hutchinson asked the City Attorney to propose how the Council should proceed. City
Attorney Roy stated this was all about applying the applicable criteria to a proposal and making a
decision. He stated if the Hearing Officer failed to address something and the Council believed that
the development needed to be reviewed under the applicable criteria, a decision needed to be made
on that. He stated the discussion had focused on "form over substance." He stated the Council
needed to decide, at this point, whether this development proposal (a three-story building) was in
compliance with 3.5.1(C) and 3.5. 1 (G)(1)(a).
Councilmember Kastein stated he believed the criteria of views, light and shadow and privacy had
been discussed and that the project was in compliance. He stated he was focusing on neighborhood
scale as set forth in 3.5.1(G)(1)(a)(4). He stated the Code provided that buildings and structures
greater than 40 feet in height shall be compatible with the scale of the neighborhood in terms of
relative height, height to mass, length to mass and building or structure scale to human scale. He
stated he needed clarification. He stated the appellant showed a slide depicting the "feathering of
intensity" from a natural area to a proposed building of 115 feet next to the proposed building. He
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stated 3.5.1(C) talked about size, height, bulk, mass and scale and added language relating to
massing proportional to the mass and scale of other structures on the same block, or adjoining blocks
if there were no structures on the same block. He stated 3.5.1(C) could provide some clarification.
He stated his question related to what structures existed now and what could exist in the future. He
stated there was a 115-foot building proposed on the block to the south. He asked if the reference
in 3.5.1(C) to structures on adjoining blocks referred to existing buildings or buildings that may exist
in the future. Byrne stated it meant both because "planning was not static." He stated staff looked
to Council decisions about what the future would hold for the community, not limiting reviews to
what was on the ground now. He stated it was a "discretionary judgment" taking into account what
was on the ground now, what was proposed, and Council's guidance in a variety of documents. He
stated it was the "Council's Code" and it would be up to the Council to make that "discretionary
judgment."
Councilmember Roy asked that staff point to what structures were on each of the adjoining blocks.
Byrne stated staff had a lot of discussions regarding the meaning of"abutting" and "adjoining" with
regard to this project. He stated "adjoining" meant touching, and that included across the street, as
if there was no intervening right-of-way. He stated there were no blocks north of Cherry Street and
instead, there was unbroken land all the way to the River.
Councilmember Roy asked for information about other structures up to the bridge. Byrne presented
visual information and stated to the south was a one-story restaurant and some tire stores, to the west
the land was vacant, and further west the property was vacant except for the Car Barn, which was
about 24 feet tall. He stated the Mason Street North project was immediately west of the site and
those structures were two and three stories and to the north was public open lands with no buildings.
Councilmember Roy stated for the audience that the Mason Street North project buildings were 39
feet high.
Byrne stated across College Avenue to the east there were one-story commercial buildings and the
old Power Plant (49%z feet high) north of those.
Councilmember Roy asked what was directly north of the site on the same side of the street. Aspen
stated there were several one-story auto use buildings.
Councilmember Ohlson stated earlier in the hearing there were references to a "loophole" in the
height requirements that would allow a three-story building to become 69 feet high. He stated some
staff indicated that the Code allowed this. He stated (C) addressed building size, height, bulk, mass
and scale and provided (on page 75) that: "Buildings shall either be similar in size and height or,
if larger, be articulated and subdivided into massing that is proportional to the mass and scale of
other structures on the same block, or if no buildings exist therein, then on adjoining blocks." He
stated this did not refer to buildings or structures that may be built in the future. He questioned being
"sticklers" for the Code on one hand and interpreting the meaning to include buildings that might
be built at any future time.
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Mayor Hutchinson stated there was a Structure Plan that provided height standards for specific areas
and nothing could ever be built if building could only take place if there was already something
nearby.
Councilmember Ohlson stated this was the Code rather than a Structure Plan.
Mayor Hutchinson stated the Land Use Code allowed 110-foot buildings.
Councilmember Ohlson stated he would have suggestions at a future time on changes to the Code
to prevent these kinds of "debacles." He stated if the intent was to count buildings that might be
built far in the future, the Code should say that.
Mayor Hutchinson asked that staff address this point. Byrne stated staff had looked at the planning
documents as well as existing buildings on sites to determine what the Council had decided for the
future of a neighborhood or an area. He stated the Code did not say that a new building could not
exceed the height of an existing building. He stated in -fill and redevelopment were more "intensive"
developments. He stated this still left open the question of what was compatible, and that was a
"judgment call." He stated staff would look to the zoning district and the permitted uses in making
determinations. He stated within those parameters, there were "discretionary judgments" and the
Council could say"you applied that wrong."
Councilmember Manvel stated the CCR and POL zones were north of this site. He stated given the
earlier discussion about clarifying some of the rules, it was `reasonable" to say that there would not
be a lot of 70-foot buildings being built north of this building along College Avenue. He stated there
was a three-story rule and he believed the Council understood what people had in mind with that
rule. He stated in the future, there would probably be much smaller structures north of this building.
He stated one part of the neighborhood of this building that had been ignored, was the open space
adjacent to this building. He stated he understood that there could be a Discovery Center, but there
would be many lines from this building that would transition directly to open space. He stated there
would be a transition from a 70-foot building directly to a park area. He stated he believed this had
bearing on the compatibility issue.
Councilmember Brown stated the voters voted for Building on Basics which would include a 60-foot
tall museum northwest of this site. He stated he did not see a difference in going from 70 feet down
to 60 feet, then down to tree line and a park. He stated this would be "nice feathering."
Councilmember Weitkunat stated "planning" involved developing the best rules, directions, zoning
and standards that the Council believed would "fit' with the community. She stated this part of the
Code talked about compatibility and height review modifications dealing with views, light and
shadow, privacy and neighborhood scale. She stated those were the issues the Council should be
looking at. She stated the CCR district was described as a fringe area of the Poudre River but it also
provided for location and redevelopment ofmoderate intensity uses that are supportive of downtown.
She stated this was right on the edge. She stated in looking at the aerial view in a planning context,
this was a triangle, which was an undesirable piece of property sitting on a corner that was
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technically part of College Avenue. She stated its views and neighbors were "technically" railroad
tracks and streets. She stated efforts were being made to compare this to residential areas, which
were further away. She stated this was probably not part of the neighborhood. She stated this was
at the edge of downtown, part of the College Avenue corridor, and on Cherry Street where there were
many railroad tracks intersecting. She stated this was a "totally undesirable site." She questioned
whether the Council was looking at something that was compatible with the downtown area as it
feathered out. She stated this would be a predominantly residential building that would buffer and
transition down from a more intense use. She stated this would be at least 700 feet away from the
River and there was a possibility of other lower buildings closer to the River. She stated in terms
of "planning", Council needed to consider whether this was part of the downtown (and whether it
was compatible with the downtown). She stated this was far enough away from housing (three
blocks away) that she did not believe there was an issue of compatibility with residential. She stated
in looking at 3.5.1(G) and the issues, the Council was to be looking at pursuant to the Code (the
building, views, light and shadow, privacy) were the issue. She stated the question was whether
those requirements had been met. She stated she would be willing to go forward with a motion.
Councilmember Ohlson stated he had driven around the site and did not believe that this would be
"feathering." He read the following from the Land Use Code: "Special standards and review
procedures to ensure that buildings do not dwarf their surrounding areas and cause unacceptable
impacts in terms of view, sunlight, privacy ....." He stated it required that buildings "be similar in
size and height, and if larger, be articulated and subdivided into massing that is proportional to the
mass and scale of other structures." He stated there was no such articulation or subdividing. He
stated the Code further stated in 3.5.1(G)(1)(a)(3): "Buildings or structures greater than 40 feet in
height shall be designed to avoid infringing on the privacy of adjacent public and private property,
particularly adjacent residential areas and public parks." He stated this project would clearly infringe
on privacy by overlooking the Park. He stated he did not believe that the Building on Basics ballot
measure included wording for a 60-foot museum within a buffer zone near the River. City Manager
Atteberry stated he had not been able to determine if that was the proposed height of the building.
He stated the City anticipated a two-story structure and that from his perspective, 64 feet would be
high for a two-story structure. He stated the building would have higher space needs for exhibits
within the museum. He stated he would confirm the proposed height of the building when he could
speak with the architect.
Councilmember Ohlson stated the important question was whether the ballot language included
wording about a 60-foot building.
Councilmember Roy stated there was nothing in the Building on Basics language that indicated the
site. City Manager Atteberry stated he did not believe that the language was specifically tied to a
site downtown.
Councilmember Roy stated perhaps there were other sites that might work for the Discovery Science
Center and the Museum. City Manager Atteberry stated a significant amount of effort had gone into
looking at that site.
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Councilmember Ohlson stated there was also debate about whether this would be downtown. He
stated there were conflicting City policies and plans that did not consider this to be part of the
downtown. He stated he wanted that noted for the record.
Councilmember Kastein stated he was willing to look at any site for the Museum and the one that
was being talked about seemed like a good site. He stated the building would abut the open space,
and so would a 40-foot or 50-foot building. He stated the argument about being next to open space
"eluded" him. He stated 3.5.1(C) talks about mass and scale of a building compared with other
buildings and went on to say "or if no buildings exist thereon...." He stated the closest residential
building was about two City blocks away. He asked how far the residential area was from the
project. Byrne stated Mason Street North was a mixed use project that included residential and it
was one block to the west.
Councilmember Kastein asked if there was a building there right now. Byme stated buildings were
under construction and were not occupied.
Councilmember Kastein asked where the 39-foot buildings were located. Byrne stated they were
being constructed and that immediately to the west, there was an existing, primarily residential
project in two 2 1/2-story buildings.
Councilmember Kastein stated the Code said: "To the mass and scale of other structures on the same
block." He stated those structures were one block away, and he asked if that was "on the same
block." Byrne stated a City block was approximately 375 feet in the downtown area. He stated the
blocks immediately on the south side of Cherry Street were that size.
Councilmember Kastein asked if the Mason Street North buildings were on the same block. Byrne
stated Mason Court was a public right-of-way extending into that development and that immediately
to the west was another block, which would be one block away. He stated there were no intervening
streets to the north.
Mayor Hutchinson stated this was an appeal process and that he believed that the Council needed
to do two things: (1) decide what specific decision of the Hearing Officer the Council was
considering; and (2) did the Council agree or disagree with the Hearing Officer. He asked if this was
the process that was to be followed. City Attorney Roy stated the Council was ultimately deciding
whether to uphold, overturn or modify the Hearing Officer's decision to deny this development. He
stated Council decided so far that it disagreed with the Hearing Officer's conclusion that it was more
than a three-story building. He stated the Council now needed to decide whether the project would
comply with the other applicable criteria that had been discussed [3.5.1(C) and 3.5.1(G)(1)(a)].
Mayor Hutchinson asked if it would be helpful to relate that to a decision or statement made by the
Hearing Officer. He stated he believed Council was going "far afield" on this appeal. City Attorney
Roy stated the only finding in the record with regard to the criteria related to 3.5. 1 (G)(1)(a) and the
Hearing Officer found that it complied with that. He stated if the Council disagreed with that and
believed that it did not comply, the Council should make that finding. He stated the Council needed
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to decide in the end whether the application was being approved and the decision of the Hearing
Officer was being overturned.
Mayor Hutchinson asked if the motion could therefore be "freewheeling." City Attorney Roy stated
the "dilemma" was that there was no specific finding on 3.5.1(C).
Mayor Hutchinson noted that one finding was that the Hearing Officer supported it. City Attorney
Roy suggested that the Council make a determination as to whether it complied with 3.5.1(C) and
3.5.1(G)(1)(a).
Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to overturn the
decision of the Hearing Officer denying the project, with conditions from the original staff report,
and to find that the project complies with Section 3.5.1(C) and 3.5. 1 (G)(1)(a) of the Land Use Code.
Councilmember Ohlson stated he would vote against the motion. He stated he strongly supported
in -fill and height in buildings but the height and scale on this site was "overkill." He stated this
would be a height typical of a six -story building; there would be no context to the surrounding area;
it would bring an unacceptable intensity to edge of a community park and open lands; and it would
dwarf all buildings in the area and in the entire City. He stated he was disappointed with the
Planning and Zoning staff on many levels and he would share his thoughts with the City Manager.
He strongly recommended that the Council work with staff to try to avoid these types of hearings in
the future i.e., that height limits should be set for certain areas rather than allowing stories and floors
in some areas. He stated a two or three-story building would be appropriate here. He stated he did
have some concerns regarding some of the processes involving individuals on boards and
commissions as related to their own development projects. He stated he believed that the Council
would "regret" this decision if it passed. He commented to staff that if they were interested in
following Council policies on this project, he hoped they would also enforce the minimalist buffer
standards in the future.
Councilmember Roy stated he would not support the motion. He stated this project was in a primary
gateway and "defining zone" for the community. He stated it was at the edge of downtown and at
the edge of Lee Martinez Park and was near the encroachment area of the Poudre River. He stated
Council was approving the following: "Building size, height, bulk, mass and scale. Buildings shall
either be smaller in size and height, or if larger, be articulated and subdivided into massing that is
proportional to the mass and scale of other structures on the same block, or if no buildings exist
thereon, then on adjoining blocks." He stated the Council was ready to make a decision that said that
this building was similar in mass, bulk and scale to a Taco John's, a one-story retail store, a
community park and a residential area. He stated Council was also getting ready to approve special
height review modifications relating to views, light and shadow, and privacy of public and private
areas. He stated what the Council was about to approve was an "abomination of style and
architecture in a very sensitive zone with absolutely no regard to the existing uses." He stated the
building would "loom" over a very special natural area. He stated Council was also approving
neighborhood scale. He stated buildings and structures over 40 feet in height were required by the
Code to be compatible in scale with the surrounding neighborhoods. He stated there was nothing
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"human scaled" about the project. He stated by any measure, Council was about to make a "large
mistake." He stated what the Council was approving had nothing to do with the language of the
Code which the Council was supposed to follow.
Councilmember Kastein stated this would be an "innovative" project and it would be a "fine
development' with "architectural flair." He stated he liked the idea of incorporating some of the
ideas and architecture from downtown buildings. He stated there were some issues with the height.
He stated there was some potential for fairly massive buildings on an abutting block and buildings
to the north. He stated this did look like "feathering" and the project was 700 feet from the banks
of the River and several hundred feet more away from the actual river. He stated this seemed like
a "quality development' and he would vote in favor of the motion.
Councilmember Weitkunat stated she was "excited" about this area of the community. She stated
this was a "trash site" because it was on a triangular piece of property between railroad tracks, a
major highway and a section of the downtown area. She stated this was a "creative" in -fill project
that would come with some "historical perspective." She stated this was "exciting" and a "visionary
gateway" of Fort Collins. She stated this was an "exciting" direction that was needed in the
downtown. She stated the project would not affect the views, that she did not see any privacy issues,
and the shadows would not matter. She stated this was not in a residential area and it was anchoring
the downtown. She stated this would be an "impressive" residential building and it would be a good
way to start a residential area. She stated this did what the City was trying to do with planning. She
stated it would be a "travesty" to remain "hung up on height." She stated this would help build and
finish the community in a positive way. She stated she believed that the Hearing Officer did err in
her decision.
Councilmember Brown stated the vision for Fort Collins was to make the downtown vibrant and get
the economy going again. He stated this would be a start and would be an "attractive" building. He
stated this would be a good anchor and would contribute toward building the economy on North
College Avenue. He stated he would support the motion.
Councilmember Manvel stated he would like to see something less "massive" on this lot. He stated
this was an interesting building representing a considerable amount of "ingenuity." He stated the
Council was forgetting the intent of this part of the zoning law. He stated there was a three-story
limit and that this was not intended to allow buildings that were 69 feet tall. He stated the City was
showing "great flexibility" in allowing this building. He stated he did not believe this would be the
asset a more "modest' building could have been on that site. He stated he would vote against the
motion.
Mayor Hutchinson stated this was a good example of"planning in progress" and some of the "pain"
that was involved with that. He stated the planned surroundings were congruent with the policies
relating to feathering. He stated the location met all of the other criteria and this would be a positive
step for part of the City. He stated it was clear that the denial should be overturned and that he
would support the motion.
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The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein and
Weitkunat. Nays: Councilmembers Manvel, Ohlson and Roy.
THE MOTION CARRIED.
Meeting Extended
Councilmember Manvel made a motion, seconded by Councilmember Ohlson, to extend the meeting
time. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat.
Nays: None.
THE MOTION CARRIED.
("Secretary's Note: The Council took a recess at this point.)
Items Relating to City Structure Plan Map Amendments
to Include the Recent Expansion of the Growth Management
Area (GMA) Boundary, and Land Use Designations Within
the Fossil Creek Cooperative Planning Area (CPA). Adopted
The following is staff s memorandum on this item
"EXECUTIVE SUMMARY. -
A. Resolution 2005 -129 Amending the City Structure Plan Map to Show the Expansion of the
Growth Management Area Boundary to Include the Former Fossil Creek Cooperative
Planning Area.
B. Resolution 2005-130 Amending the City Structure Plan Map "Land Use Designations"
Within the Southwest Quadrant of I-25 and Carpenter Road.
The Fort Collins City Council and the Larimer County Commissioners have agreed to expand the
Fort Collins Growth Management Area (GMA) boundary to include the former Fossil Creek
Cooperative Planning Area (CPA). The first item is a follow-up housekeeping action to show the
expanded GMA boundary line on the City Structure Plan Map.
The City Council has also directed City staff to work with property -owners in the area to see if any
land use designation changes are appropriate in order to deal with a variety ofdevelopment related
issues in the expanded GMA area, including but not limited to, the need to improve the I-25
interchange and Carpenter Road, compatibility of future development with surrounding existing
land uses, preservation ofopen lands as part ofthe Loveland -Fort Collins community separator, and
mitigation ofdevelopment impacts on existing wetlands and natural areas. The City Structure Plan
map for the former Fossil Creek Cooperative Planning Area is in need of amendment in order to
better comply with the policies and expectations set out in adopted plans for the area including the
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Fossil Creek Reservoir Area Plan, A Plan for the Region Between Fort Collins & Loveland and the
Northern Colorado Regional Communities 1-25 Corridor Plan. All of these plans are elements of
City Plan, the City's Comprehensive Plan.
City staff developed several potential options for land use changes to the City Structure Plan map
and ultimately a preferred Option based on input throughout the planningprocess. On the October
20, 2005 Planning and Zoning Board Hearing, the Board did not support the staff Preferred Option,
but recommended to City Council Option # 5 (vote 5-2, see attached minutes).
Staff has revised its recommendation to be in -line with the Planning and Zoning Board. However,
staff continues to have concerns of providing an appropriate land use transition and landscape
buffer between future commercial development and existing or future urban estate and rural land
uses. Asa result, staff is recommending a follow-up item as part of the Semi -Annual Land Use Code
Maintenance process next spring to assess additional language to strengthen land use and
development standards relating to this concern.
BACKGROUND:
L Adopted Plans:
A selection ofadopted plans helped provide policyguidance forstaff's recommended changes to the
City Structure Plan map.
A. A Plan for the Region Between Fort Collins & Loveland (1995)
The purpose of the Plan was to "determine the future character and vision for the area between the
Cities of Fort Collins and Loveland. " The entire planning area was divided into 22 subareas with
specificpreservation, landuse character, and implementationpoliciesfor each subarea. Theformer
Fossil Creek CPA was divided into two subareas, Subarea 17, located north of Carpenter Road
(County Road 32) and Subarea 18, located south of Carpenter Road.
The Objectives, land use character and implementation policies for Subarea 17 are consistent with
the existing City Structure Plan map and thus no changes are proposed for this area. The primary
Objectives for Subarea 18 were to:
• Maintain County Road 32 as a free flowing arterial with open character.
• Avoid impacts resulting from airport proximity.
• Some limited commercial along 1--25 frontage road.
• Ag. /open in areas impacted by airport.
B. Fossil Creek Reservoir Area Plan (1998)
The primary objectives of the Plan were as follows:
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• To outline a vision for the long-range and resource -based development, within the
Fossil Creek Reservoir Area, that reflects the aspirations ofLarimer County, City of
Fort Collins, and adjoining municipalities, and incorporation a strategy for
accomplishing that vision.
• To provide a basis for judging whether specific development proposals and public
projects are in harmony with Plan policies and development standards.
• To allow County and City departments and other public agencies, and private
developers to design projects that will enhance the character of the Fossil Creek
Reservoir Area, preserve and enhance critical environmental resources, and
minimize hazards.
• To provide for continuing consultation between Larimer Countyand the CityofFort
Collins on policies and standards that is within each governmental body's
jurisdiction.
• The Plan created the Fossil Creek Cooperative Planning Area (CPA).
C. Northern Colorado Regional Communities I-25 Corridor Plan (2002)
The Plan's Preferred Vision includes the following key concepts:
• Development is concentrated in mixed -use activity nodes to support the use of
alternative modes and reduce short-term land consumption.
• Development is organized to create a strong visual and physical connection to
current and future transportation systems, to other developments, and to I-25.
• Single-family detached residential development does not occur within '/. mile ofI-15
to minimize noise and visual impacts.
• Large employers and industrial uses are clustered in a campus -like setting adjacent
to activity centers, or are integrated with other uses into activity centers.
• A multi -modal transportation system (transit, pedestrian, and bicycle) enhances
access in the corridor.
• Establish a range of development types and intensities within the Corridor. Focus
urban levels of development within compact "activity centers ".
D. City Plan
The update to City Plan and the City Structure Plan map (see attached map) depicts a mixed land
use pattern for the Fossil Creek CPA with Commercial Corridor and Employment land uses within
'/a mile of I-25. These combined land uses illustrate and support an activity center located at the
interchange of I-25 and Carpenter Road. Urban Estate, Community Separator and Public Open
Lands designations are located within the balance of the area.
2. Land Use Options:
To establish a basis for discussion, staff developed five land use option maps, with Option 1
reflecting the existing Structure Plan. The 5 options developed did not include any changes to the
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Structure Plan map for properties further than 115 mile west from I-25 along Carpenter Road
(County Road 32), The options developed differed mainly in the amount of acres planned for
commercial (retail) and employment (office and light industrial) uses within the former CPA near
I-25.
Based on input from public outreach throughout the planning process, staff developed a preferred
option recommendation which was presented to the Planning and Zoning Board at the October 20tb
hearing. The Preferred Option changes the existing Structure Plan Map to increase the amount of
land designated for commercial uses and decreases the amount of land designated for residential
and employment uses. A narrow strip ofemployment land use buffer between commercial areas and
areas designated as community separator is maintained. The Preferred Option includes
approximately 15 acres of employment and 210 acres of commercial. Staff determined that the
existing Land Use Code buffer and land use transition standards were not adequate and thus
recommended the employment designation. A sample ofemployment uses suitable for a transition
includes community facilities, offices, financial services, clinics and small business service shops.
The Planning and Zoning Board questioned the need to add a thin strip ofemployment between the
two uses and if the objectives would actually be met considering the type of uses allowed in the
employment land use designation. In addition, the Board recognized that the existing open space
buffer within the Eagle Ranch Estates subdivision would provide sufficient buffer of non-residential
uses. With a 5-2 vote, the Board recommended to City Council Option # 5, which showed an
increase in commercial (225 acres) and elimination ofemployment land use designations. Examples
of allowed commercial uses include standard and fast food restaurants (without drive in or drive -
through facilities), offices, large retail establishments, lodging and hospitals. Ofa total of225 acres
of non-residential uses this would equate to approximately 1,670,350 square feet of commercial
development.
However, this option removes the employment land use designation transition between the existing
Eagle Ranch Estates subdivision and future commercial uses. While a considerable tract of open
space exists along the eastern edge of Eagle Ranch Estates subdivision adjacent to the commercial
land use designation, at a minimum a 400 foot open space setback exists, to approximately 900 feet
from the nearest home to the edge ofproperty. Although, the existing Eagle Ranch subdivision is
located at a higher elevation than the parcels to the east. The majority of the Planning and Zoning
Board members and adjacent property owners believe this setback is adequate. Staff believes that
all of the burden should not be placed on existing residential development to provide an adequate
buffer to commercial uses. In fact, the Eagle Ranch HOA Board is recommending an additional 114
mile of estate residential to the east of its subdivision. A staff response to this request is not to
support any additional single family residential closer to I-25 and recognize the activity center
designation which is consistent with other adopted Plans.
However, without the employment designation, staff has assessed the existing LUC standards are
lacking adequate standards in the Commercial District for providing a sizable buffer and transition
between uses. Asa result, staff is recommending a follow-up item as part of the Semi Annual Land
Use Code Maintenance process next spring to assess additional language to strengthen the
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standards in Article 4 Commercial District relating to this concern. Staffhad identified two options
to consider for text amendments to include either:
A) The following draft language is suggested for incorporation into the LUCArticle 4.17land
use standards:
For properties generally bounded by''/2 mile west 1-25 and on either side of Carpenter Road, larger
that 20 acres in size, a land use transition shall be provided along any boundary line that adjoins
an existing large lot estate residential land use or a zone district (whether within or beyond the city's
jurisdictional boundary) that is predominately characterized by estate residential uses as permitted
uses.
The following land uses shall be permitted within a commercial development to provide a land use
transition between existing estate residential and commercial development: offices, financial
services and clinics, veterinaryfacilities andsmall animal clinics and personal and business service
shops.
Or;
B) the following draft language is suggested for incorporation into the LUC Article 4.17
development standards:
A minimum eightyfoot deep landscaped yard shall beprovided along any boundary line that adjoins
an existing large lot estate residential land use or a zone district (whether within or beyond the city's
jurisdictional boundary) that is predominately characterized by estate residential uses as permitted
uses. This residential buffer yard may be reduced to thirty (30) feet if the adjoining residential land
use or zone district (whether within or beyond the city's jurisdictional boundary) is separated by a
public street. This standard maybe substituted for the land use standard mentioned above.
3. Public Process:
The following list represents the combination ofpublic hearings and property owner meetings held
during the public planning process for these two items:
June 17, 2004 — Public Hearing, Fort Collins Planning and Zoning Board
March 15, 2005 — Public Hearing, Fort Collins City Council
June 15, 2005 — Public Hearing, Larimer County Planning Commission
July 11, 2005 — Public Hearing, Larimer County Commissioners
August 31, 2005 — Public Open House
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October 10, 2005 — Eagle Ranch Estates HOA Board Meeting
October 12, 2005 — Notice to affected property owners for scheduled hearings
October 20, 2005 — Public Hearing, Fort Collins Planning and Zoning Board
November 16, 2005 — Natural Resources Advisory Board Meeting
4. Findings of Facts and Conclusions:
In City Plan Appendix C, the process and procedures for City Plan revisions for minor amendments
is described. The proposed amendments to the City Structure Plan Map fall under this category.
A plan amendment will be approved if the City Council makes specific findings that:
The existing City Plan and /or any related element thereof is in need ofthe proposed
amendment, and
The proposed plan amendment will promote the public welfare and will be consistent
with the vision, goals, principles and policies of City Plan and the elements thereof.
The first amendment to the City Structure Plan Map for expansion ofthe Growth Management Area
(GMA) boundary line to include the former Fossil Creek Cooperative Planning Area meets the
required criteria. First defined in the Fossil Creek Reservoir Area Plan (Element of City Plan) and
later in City Plan and the Larimer County and City of Fort Collins Intergovernmental Agreements,
the Fort Collins Cooperative Planning Area (CPA) was established. The CPA set the stage for
eventual expansion ofthe Growth ManagementArea (GMA) and annexation. The City Plan Update
in 2004 identified the GMA expansion of the Fossil Creek CPA for a future implementation action.
Fort Collins City Council and the Board of County Commissioners adopted the expansion of the
GMA to encompass the CPA in March and July 2005 respectively.
This current action is to bring the City Structure Plan Map consistent with the previous decision.
This amendmentpromotes the public welfare in that it will provide an orderly and planned growth
management pattern for the City of Fort Collins in accordance with adopted procedures. In
addition, this action is consistent with adopted vision, goals and policies in City Plan.
The second amendment to the City Structure Plan Map to change the land use designations within
the southwest quadrant ofI--25 and Carpenter Road area as shown on Option 5 meets the required
criteria as well. In response to the decision to expand the GMA, both City Council and the Board
of County Commissioners requested staffassess refinement ofthe land use designations in this area.
Through a deliberate public process staff has analyzed several alternative land use scenarios,
leading to the final recommendation to City Council.
The staff recommendation is consistent with previously adopted Plans mentioned above.
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5. Staff Recommendation:
Staff recommends that the City Structure Plan map be amended to incorporate:
A. Expansion of the Growth Management Area (GMA) boundary line to include the
former Fossil Creek Cooperative Planning Area (as shown on attachment # 3).
B. Land use designations within the southwest quadrant of I-25 and Carpenter Road
area as shown on Option 5 (attachment # 4).
C. Direction from City Council to allow staff to pursue a follow-up item as part of the
Semi -Annual Land Use Code (LUC) Maintenance process next spring (2006) to
assess additional language to strengthen land use and development standards in the
(LUC) Article 4.17 Commercial District for projects locating adjacent to urban
estate and rural land uses. "
City Manager Atteberry introduced the agenda item.
Pete Wray, Senior City Planner, stated this item would amend the City Structure Plan Map to show
a Growth Management Area boundary line change. He presented visual information showing the
existing Structure Plan Map and Growth Management Area boundary and the context to parcels and
existing developments where the GMA boundary extension would occur, primarily south of
Carpenter Road to I-25. He showed visual information depicting the relationship between the GMA
boundary extension and the existing land use designations on the Structure Plan Map. He stated the
first item was a housekeeping item to amend the Plan to show the boundary line adjustment based
on a previous decision by the City Council and the Board of County Commissioners. He stated the
second item was looking at land use designations in and around Carpenter Road, approximately one-
half mile west of I-25 north and south of Carpenter Road on the west side of the interchange. He
stated the City Council and County Commissioners requested that the City staff look at the land use
designations for this area west of the interchange, meet with area property owners, and come up with
a preferred land use scenario for decision. He stated staff conducted a public process and developed
five land use scenarios for the half -mile area around Carpenter Road and I-25. He stated the land
use scenarios looked at development issues in the area, including the need to improve the I-25
interchange and Carpenter Road, compatibility of future development with existing surrounding
land uses, preservation of open lands as part of the Loveland -Fort Collins separator, and mitigation
of development impacts on existing wetlands and natural areas. He stated a "read -before -the -
meeting" memo was placed in the Council packets to clarify Attachment 10 in the packet relating
to language addressing existing wetlands in the area north and south of Carpenter Road
approximately a quarter -mile west of I-25. He stated the City received a letter from the Army Corps
of Engineers indicating that ultimately it would claim jurisdiction over the wetlands. He stated other
City standards would apply to any development that came forward as part of the City process. He
stated staff looked at existing plans to develop the land use alternatives: the Plan for the Region
Between Fort Collins and Loveland (1995), the Fossil Creek Reservoir Area Plan (1998), the
Northern Colorado Regional Communities I-25 Corridor Plan (2001), and CityPlan Update (2004).
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He stated the five alternatives were the existing Structure Plan and other options that would look at
different degrees of Commercial or Employment land use designations. He stated option 5 looked
at Commercial designation for most of the area on either side of Carpenter Road. He clarified the
maps showing the delineation between Open Lands and Commercial. He stated at the October 20
Planning and Zoning Board hearing, the staff recommendation was for an alternative with mostly
Commercial designation on either side of Carpenter Road, including Employment land use
designation as a transition between the Commercial land use and community separator and existing
County cluster development further to the west. He presented visual information showing the staff
recommendation. He stated the Planning and Zoning Board voted 5-2 to support option 5, which
would be primarily Commercial designation on either side of Carpenter Road without the
Employment transition that was part of the staffrecommendation. He stated the Board felt that some
of the uses allowed in Employment would not necessarily provide that transition and felt that the
existing setbacks in the Eagle Ranch Estates Subdivision were sufficient separation from future
development. He stated the other two Boardmembers were concerned about the loss of Employment
land use in this area, a need to provide a buffer and transition between uses, the timing of
development, and how standards would apply for this area. He stated staff s recommendation to the
Council was in line with the Planning and Zoning Board recommendation showing a Commercial
designation for this entire area, with one condition (as follows). He stated the third item for Council
consideration was to direct staff to look at some additional language in the Land Use Code as part
of the spring Code maintenance for landscape buffer setbacks for Commercial development, or land
use transitional language for the Commercial zoning district. He presented visual information
showing the current staff recommendation. He stated staff was also asking for direction on another
issue. He stated without the Employment designation that was part of the staff recommendation,
staffbelieved there was still a need for abuffer or transition between future Commercial and existing
Estate Residential. He stated staff would look at additional language for the Commercial zone
relating to landscape buffers or additional land uses that could be added to contribute to a transition
between uses.
City Manager Atteberry stated the 2006 budget included planning dollars to work in partnership with
the Town of Windsor. He stated the purpose of that planning study was to further consider land use
issues; to continue to work on environmental opportunities and challenges in the area; to consider
infrastructure gaps jointly with the Town of Windsor, Larimer County, the MPO and CDOT; to look
at potential funding options for those gaps in infrastructure; and to evaluate the potential for future
revenue sharing between Windsor and Fort Collins. He stated an intergovernmental agreement
between the Town of Windsor and the City of Fort Collins for joint planning in this area would be
brought back to Council at some point.
Mayor Hutchinson stated each audience participant would have five minutes to speak.
Tom Honn, planning consultant representing a property owner on the north side of Carpenter Road,
supported Option 5 as recommended by the Planning and Zoning Board and staff. He stated there
had been positive discussions between the property owners and staff on this area. He stated prior
to annexations, it would be important for everyone to understand the development standards and the
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problems with the interchange. He stated it was important to understand what kind of participation
the property owners on the west side of the interchange could bring to the solution in partnership
with all of the other parties. He stated he would like to have the property owners involved in
discussions with the other parties working on solutions and alternatives for the area.
Jeff Couch, TEAM Engineering, 3468 Shallow Pond Drive, representing property owners on the
south side of the interchange, stated Larimer County had agreed that this expansion of the GMA
should happen and had placed two conditions on its approval. He stated one condition was that the
City work with the landowners on the zoning. He expressed appreciation for efforts that had been
made to arrive at a recommendation for Option 5. He stated the second County condition was to ask
the City to put together a meaningful fiscal plan for the replacement of the I-25 interchange. He
stated this had not yet been done. He stated that would be a big issue and he was encouraged by the
fact that there was work toward a joint solution with the Town of Windsor. He encouraged the City
to continue those discussions and work on the fiscal plan. He asked that the property owners be
involved in those discussions.
Councilmember Brown asked for an explanation of the Employment land use designation. Wray
stated Employment zoning typically allowed light industrial, office business parks, some secondary
uses such as limited residential, shopping centers and other commercial development.
Councilmember Brown asked if there would be a buffer between the Commercial zone and Eagle
Ranch under Option 5. Wray stated there were existing standards that talked about building
compatibility, landscape treatment and setbacks. He stated staff felt that in the Commercial zone,
the existing provisions did not go far enough to provide a strong transition between Commercial and
existing Estate Residential. He stated Eagle Ranch had open space around the periphery of the
development. He stated staff believed some additional standards could be added to the Commercial
designation so existing Estate Residential did not have to bear the total burden of buffering. He
stated such additional standards could include providing for small buildings, such as clinics or office
buildings, between something like large retail and the edge of a project. Joe Frank, Advance
Planning Director, stated the Employment zone district was designed to be adjacent to
neighborhoods and a transition area. He stated that in this case, staff felt that the Employment
district could have provided a transition and the Commercial zone did not have the standards to
provide such a transition. He stated staff now believed the Commercial zone could work if the
standards were "beefed up" for transitions between a large lot Estate Residential.
Councilmember Brown asked what steps were being taken to protect the wetlands and where they
were located. Wray stated the most visible wetlands were on either side of Carpenter Road about
one -quarter mile west of the Interstate.
Councilmember Brown asked if there would be a buffer between the wetlands and the Commercial
development. Wray stated only the land use designation was being considered at this time. He stated
the Army Corps of Engineers had indicated its intent to take over jurisdiction of the wetlands. He
stated the City's natural areas standards would also apply for specific developments in the
development review process.
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Councilmember Weitkunat asked about the proposed spring Land Use Code amendments. She asked
if this change would apply in other parts of the City as well, or would apply only to this area. Frank
stated there were Commercial land uses adjacent to larger lot Estate Residential along the I-25
Corridor.
Councilmember Weitkunat asked if the proposed Code changes would apply to all of those areas.
Frank stated staff would be looking at all of the areas where this might be the situation.
Councilmember Weitkunat asked if the existing Eagle Ranch buffer was adequate. She questioned
the need for Code changes when there might be enough existing buffer in this case. Frank stated this
particular development might have enough buffer. He stated staff was concerned about whether the
current land use standards provided an appropriate transition between intensive Commercial
development and large lot development.
Councilmember Weitkunat stated she hoped this would apply to other areas throughout the GMA,
rather than being site -specific to this area, and that she would be looking for that when staff came
back with Land Use Code changes in the spring. She asked about keeping the property owners "in
the loop" and whether Council direction was needed. Frank stated it was a "given" that public input
would take place. He stated the Windsor -Fort Collins Plan would include a significant public
participation process.
Councilmember Kastein asked if Commercial and Urban Estates would usually abut. Frank stated
efforts were made to avoid this. He stated there were lower intensity land uses that were typically
used as transition areas. He stated that more often there would be an Estate Residential zone next
to a Commercial area.
Councilmember Kastein asked about the intense development to the south. Wray stated this was an
existing County subdivision (Mountain Range Shadows).
Councilmember Kastein stated the City was bringing a new zoning designation closer to an existing
development i.e., extending Commercial where it did not exist before in place of an existing less
intense use. Wray stated there was an existing Commercial business (a sign company) next to
Mountain Range Shadows.
Councilmember Ohlson asked why the City could not do its own delineation for the wetlands instead
of the Army Corps of Engineers taking jurisdiction. He expressed concern that this agency had a bad
environmental record. He asked why the City could not establish its own criteria and definitions to
delineate wetlands. John Stokes, Natural Resources Director, stated that typically the developer did
a delineation of wetlands and prepared an ecological characterization study. He stated in this case
before development, the landowner would have to conduct such a study and would have to go to the
Army Corps of Engineers to obtain a 404 permit before disturbing the wetlands on the site since that
agency had already indicated that these were jurisdictional wetlands.
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Councilmember Ohlson stated it was a "flaw" in the development process for the developer to hire
a consultant to present an opinion to the City on the wetlands. He stated this would not be an
"objective opinion." He asked if the City took any action to confine the report. Stokes stated staff
reviewed the delineations to determine accuracy.
Councilmember Manvel made a motion, seconded by Councilmember Kastein, to adopt Resolution
2005-129 and Resolution 2005-130. Yeas: Councilmembers Brown, Hutchinson, Kastein, Manvel,
Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Wray asked if there was direction from Council on the third item.
Mayor Hutchinson stated the consensus was in favor of providing direction to staff to bring back
Code changes in the spring.
Resolution 2005-127
Adopting the City's 2006 Legislative Policy Agenda, Adopted as Amended
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY:
Each year the Legislative Review Committee (LRQ develops a legislative agenda to assist in the
analysis ofpending legislation. The proposed 2006 Legislative Policy Agenda, which is attached
to the Resolution as Exhibit "A ", has been updated from the 2005 document and was reviewed and
approved by the Legislative Review Committee. Changes are highlighted below. This document will
be used as a guide for the upcoming 2006 General Assembly and the second session of the 109th
Congress. The purpose of the Legislative Policy Agenda is to articulate the City's position on
common legislative topics. It will be used by Council members and staff to determine positions on
pending legislation and as a general reference for state legislators and our congressional
delegation.
BACKGROUND:
Policy statement additions, deletions and amendments to the 2005 Legislative Policy Agenda are
highlighted in italics:
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Paee 6, AIR QUALITY. amend statement #3:
3. "Support legislation and regulations that make tailpipe standards more stringent; that establish
equal standards for cars, light trucks and sport utility vehicles, that set fuel -neutral standards for
gasoline and diesel; that decrease sulfur content of fuels; that promote advanced low emission
vehicle technology; and that provide incentives for biodiesel fuel. "
This addition recognizes the City's commitment to biodiesel and encourages incentives that will
reduce fuel costs and increase public usage.
Page 6. AIR QUALITY. add statement:
5. "Support legislation and regulations that provide incentives to encourage renewable energy
production including wind power."
This statement is consistent with the City's Electric Energy Supply Policy. Fort Collins renewable
energy use is targeted at 15 percent of total usage by 2017.
Page 7. AIR QUALITY. amend statement #8:
8. "Support legislation and regulations that increase energy efficiency, including a "systems benefit
charge " to promote demand -side management, and the use ofrenewable energy sources, excluding
residential wood-burnin ,
Removes editorial wording.
Page 15, FINANCE, amend statement #2:
2. "Support legislation that promotes pubfic and p, irate secto, economic developments that are
consistent with the city's economic policy.
Change clarifies and simplifies statement.
Page 15, FINANCE, add statement:
3. "Support municipal authority to establish public improvementfees as a tool for funding public
improvements. "
A Public Improvement Fee (PIF) is a fee that developers may require their tenants to collect on sales
transactions to pay for certain improvements on their site. Generally, these improvements are
financed through a Public Improvement Corporation or a Special District. The Public Improvement
Fee collected repays the PIFdebt incurred by the developers. Some examples of these improvements
are curbs and sidewalks, parkingfacilities, storm management system, sanitary sewer systems, road
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November 29, 2005
development (within the site) and outdoor public plazas. Several Colorado communities are
currently using aPIFin conjunction with developmentprojects including Lakewood, Loveland and
Pueblo.
Page 18, FIRE PROTECTION, add statement
2. "Support legislation that requires the installation of fire protection systems in structures to
enhance life safety and property protection. "
This statement endorses legislation that would make fire sprinkler systems mandatory for new
structures. Cost estimates for installing residential sprinkler systems in new construction range
from $11sq ft. to $1.60/sq ft.
Page 18. FIRE PROTECTION. add statement
3. "Support the mandatory installation of carbon monoxide detectors in new structures. "
Carbon monoxide detectors have become affordable and reliable. The number of carbon monoxide
caused deaths in American homes is growing. This is protection that is reasonable and effective.
Cost estimates for carbon monoxide detectors range from $30 to $43 per unit.
Page 20, AFFORDABLE HOUSING, delete statement #1
This statement was likely crafted to address a specific piece of legislation several years ago. It does
not pertain to any legislation anticipated in the future. The recommendation from the Housing
Authority is to eliminate this policy statement. If it appears the issue of rent controls in relation to
affordable housing will surface in future years, the Housing Authority will recommend a policy at
that time.
Page 23, PLANNING AND LAND USE, amend statement #9:
9. "Oppose legislation that limits a municipality's right to annex
aff its citizens.,
Change clearly focuses statement on annexation.
Page 25, POLICE SERVICES. delete statement #8
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November 29, 2005
This is now law with the 2005 passage ofHB 1108.
Page 29, TELECOMMUNCIATIONS. add statement:
3. "Support privacy and identity theft protections for customers of cable, wireless and internet
communication services. "
Protection of citizen's social security numbers and other information that can lead to identity theft
is the basis for adding this policy statement. There are some service providers who require that type
of information from subscribers.
Pa.ge31. TRANSPORTATION. amend statement #2:
2. "Support the current allocation formula of 60% state, 22% counties and 18% municipalities for
the Highway User Tax Fund (HUTF) as a minimum shareback for state transportation revenues.
Support local sharebackfor any state appropriation for transportation with the same formula. "
This would leave the door open for a better revenue sharing formula, if the opportunity were to
arise.
Page 31, TRANSPORTATIONN, amend statement #7:
7. "Support the elimination of off -the -top diversions from the HUTF to other agencies such as the
State Patrol and Department of Revenue. In the interest of promoting highway safety, support
adequate funding for the State Patrol and Ports of Entry from the state general fund or exclusively
from the state share of HUTF funds. "
This additional wording encourages the state to take its off -the -top diversions of Highway User Tax
Fund (HUTF) money from their 60%share of the HUTFpot — rather than from the total pot before
making the 60122118 split.
Page 32, TRANSPORTATION, add statement:
"Oppose suspending the collection of the gasoline tax Gasoline tax relief should not be
considered as a tool for dealing with gasoline price,/luctuations. "
There has been at least one proposal from a legislator to suspend the collection of the gasoline fuel
tax. The gasoline tax is what funds the HUTF. Without this revenue, there would be practically no
dollars left for transportation maintenance or improvements. "
City Manager Atteberry stated this item was pulled from the Consent Calendar for discussion of a
new item related to the DDA and to respond to Councilmember Ohlson's question.
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November 29, 2005
Mark Radtke, Legislative Affairs Coordinator, stated staff was asking that Council approve the draft
Legislative Policy Agenda with the addition of an item relating to the Downtown Development
Authority. He stated the DDA would be moving forward with seeking sponsorship of a bill in the
next legislative session to extend the life of a DDA. He stated the current discussion revolved
around a bill that would allow an extension of the DDA and move up the base of the tax increment
financing year. He stated this would mean a 30-year life span for a DDA.
Councilmember Ohlson asked if this package included adding the DDA and taking out and making
neutral the City's stand on the Water Conservancy District. He stated he would support this if they
were combined. He expressed a concern that this could have been brought to the Council six months
ago. He stated he had a lot of questions and would like to receive the information for the future. He
stated "moving up the rolling 10-year" would mean that not a lot of tax increment would be created
in the first 10 years. He stated he would like to see "real dollars" in the future. He stated he had
requested a memo on the sunset of the DDA and the tax increment. He stated when things came to
the Council at the last minute that he would be an "automatic no." He asked why this was not
brought to Council sooner. Radtke stated his belief was that support for this type of bill would be
covered by existing policy statements in 2005 and 2006. He stated as the bill "took on some life"
staff decided that something more specific would be desirable to have in the Legislative Policy
Agenda. He stated there had always been general statements of support for DDAs, and this was
more specific to legislation that was starting to take shape.
Councilmember Ohlson stated this made him more comfortable with voting in support.
City Manager Atteberry stated he felt that it was reasonable to minimize last minute items.
Councilmember Ohlson made a motion, seconded by Councilmember Kastein, to delete Item 4
(under Water Utilities) on page 33 and add on page 28 a DDA extension Yeas: Councilmembers
Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Ordinance No. 169, 2005,
Creating the Land Conservation and Stewardship
Board. Adopted as Amended on First Reading
The following is staff s memorandum on this item.
"EXECUTIVE SUMMARY.•
In November 2002, voters passed a ballot measure known as Open Space, Yes! (OSY), a
continuation of the City's .25 cent sales tax for the acquisition and management of open space.
Open Space, Yes! begins collecting and distributing revenues to the City's Natural Areas Program
as of January 1, 2006
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November 29, 2005
Section 15 ofOSYstates that: "...the City Council shall designate a voluntary City Advisory Board,
either existing or new, to advise and make recommendations to the City Council regarding the
expenditure of the moneys for the purposes stated herein. "
At the Council's August 9, 2005 work session, Council indicated to staffthat it wished to create and
appoint a Board with certain functions as well as describe an array of desired skill sets that
prospective Board members could bring to the Board.
The following functions are described in the ordinance creating the Board:
To advise City Council regarding policy and budgetary matters pertaining to the
Natural Areas Program, including but not limited to the expenditure of Open
Space, Yes! and Lorimer County Help Preserve Open Space dedicated sales tax
revenues.
2. To advise Natural Areas Program staffand the City Council in connection with
the proposed acquisition or disposition of land, interests in land, interests in
water, and other interests in real propertyfor the Natural Areas Program.
3. To advise Natural Areas Program staff regarding the development of
management plans and public improvements for Natural Areas Program
properties.
4. Upon request of the City Manager or at the direction of the City Council, to
advise City Council in connection with the proposed acquisition or disposition
of land, interests in land, interests in water, and other interests in real property
for cityprograms other than the Natural Areas Program.
The following skill sets are set forth in the proposed Code section for prospective board members;
they are not intended to be exhaustive or exclusive:
Experience or training in, or familiarity with, the following: land conservation and
stewardship, public or outdoor recreation (such as wildlife observation, hiking,
biking, horseback riding), conservation biology (including restoration ecology, range
management, fire ecology, riparian ecology, and wildlife management); nature
interpretation and education, land or resource management, and real property
transactions.
At its October 5th meeting, the Natural Resources Advisory Board unanimously recommended that
City Council adopt the proposed functions of the Land Conservation and Stewardship Board. (The
Board also requested a minor grammatical clarification of language in the functions; this was
addressed by staff) "
Mayor Hutchinson asked if Council wanted to go ahead with this item at this late hour. The
consensus was to continue the meeting.
City Manager Atteberry stated there would be a brief staff presentation.
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November 29, 2005
John Stokes, Natural Resources Director, presented background information regarding the agenda
item. He described the functions of the proposed Land Conservation and Stewardship Board. He
also described the potential (non-exclusive) skill sets for applicants for Board membership.
Mayor Hutchinson stated the last WHEREAS clause was expanded to incorporate the intentions of
Council as follows: "... operated by the natural areas program, which plans and improvements
should allow for appropriate public access and use of the areas, but only in a manner that is sensitive
to, and consistent with, the preservation of the areas and any restrictions or limitations that might be
imposed by the funding source used to acquire these areas."
Councilmember Kastein stated he was concerned about "setting the bar" so high for qualifications
for the Board. He asked if there were requirements for membership for other boards. City Attorney
Roy stated there were a few boards where Council had established criteria for membership. He
stated for most boards there were no criteria.
Mayor Hutchinson stated that was discussed at length at the study session and the Council felt it was
important for this new Board to have a deliberate set of skills. He stated the Council agreed that
preference would be given to those with specific skills but that this was not a requirement or quota.
He stated there were 29 applicants for nine positions and a broad range of skills was represented.
He stated the Council wanted to have a balance of environmental and economic skills on the Board.
Councilmember Ohlson stated nothing would prohibit the Council from appointing a "generalist"
or "generic citizen." He noted that "environmentalists" were not included in the skill sets. He stated
he was certain that generic citizens would be appointed to the Board.
Councilmember Kastein stated if skill sets were to be listed for boards and commissions, there
should be a number for people appointed from each area.
Councilmember Ohlson stated this was discussed at length and there could be some categories that
people fit into and some people might not do well in the interviews. He stated Council was looking
for a mix of "personality types" as well as skills. He stated he would not support a quota for any
specific category.
Mayor Hutchinson stated Council's consensus was not to require a specific number in any category.
Councilmember Kastein stated he liked the language regarding the Board making recommendations
to the City Council regarding the expenditure of money for the stated purposes. He stated he was
concerned about language that specified that the Board would advise staff on some matters. He
stated his concerns could be eliminated if there was some language in the Ordinance providing that
the Council must "sign off" on any purchases that were made. City Manager Atteberry asked what
that would mean "practically" when there was a need to close on properties quickly. He stated
Council's decision -making in the past related to appropriating the dollars and not closing on the
specific properties. He stated staff would continue to "check in" with Council on larger,
controversial projects. Greg Byrne, CPES Director, stated one of the advantages of the program was
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November 29, 2005
that staff was not required to bring every acquisition to the Council. He stated this enabled staff to
act quickly under the guidance provided by Council in the appropriation and the Land Stewardship
and Conservation Plan. He stated that Plan was fairly specific in the areas to be acquired. He stated
past practice was to come to Council in Executive Session on any controversial transaction. City
Manager Atteberry stated he would welcome feedback from Councilmember Kastein on specific
concerns.
Councilmember Kastein stated the Soapstone transaction illustrated his concern. He stated the
Council ultimately signed off on the grazing rights. He stated Council talked with staff in Executive
Session about the transaction but the Council did not have ultimate responsibility for the purchase
itself. He stated he believed that the responsibility should rest with the Council for such large
transactions. City Manager Atteberry stated in his opinion, that transaction should have occurred
with the full support of the Council.
Councilmember Manvel stated the Larimer County Open Space Board negotiated for properties
without going to the Commissioners. He stated program "really works." He stated he hoped the City
program would be modeled after the County program. He stated he hoped the Council would remain
"in the loop" on big items in a confidential way.
Councilmember Ohlson stated he was concerned that other buyers would gain public information
during negotiations that work against the City buying property with fewer dollars. He stated the City
needed to get the "best bang for the buck." He stated the ultimate responsibility did rest with the
Council.
Councilmember Roy stated Soapstone would not have been acquired without majority Council
support. He stated Council always had opportunity to discuss a potential acquisition when staff was
unsure about the propriety of that acquisition.
Councilmember Ohlson asked if Councilmember Kastein was more comfortable with this.
Councilmember Kastein stated he understood the "paradox" that quick action was needed. He stated
he was uncomfortable that there would not be a "direct line of accountability" to individual
Councilmembers on significant decisions.
Councilmember Ohlson stated the Council required a quarterly report of all income and outgo for
specific projects. He stated this was a new level of reporting. He stated there would also be a yearly
report on exactly what was acquired and for how much. He stated the accountability was almost
"overkill." Stokes stated at the study session, staff heard that the Council wanted to be sure that staff
was reporting to Council on a regular basis about cash flow, spending, and specific transactions.
Councilmember Weitkunat stated Councilmember Kastein appeared to be concerned about the
accountability of Council, rather than a citizen group, in disbursing funds. She asked if the reporting
from staff would "filter into that accountability." She stated she agreed that it was ultimately
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November 29, 2005
Council's responsibility, not the Board's. She stated the issue was how this could be built in without
making it cumbersome.
Councilmember Ohlson stated he did not feel that the Board would be disbursing the money.
Councilmember Weitkunat stated this would give that responsibility to this Board.
Councilmember Ohlson stated he saw this as operating the same way that the Natural Resources
Advisory Board had operated.
Mayor Hutchinson stated he would like to ask the staff, prior to Second Reading, to suggest a simple
process for Council involvement that would not interfere with negotiations.
Councilmember Ohlson asked how this was different from what the Natural Resources Advisory
Board had been doing. Stokes stated he did not view this as being different. He asked for guidance
on Council regarding the Mayor's proposal i.e., whether something should be included in the
Ordinance, or whether there should be a reporting mechanism.
Councilmember Brown stated he would like to see a dollar amount that would trigger Council
involvement or a briefing.
Mayor Hutchinson stated this had been discussed and it was difficult to come up with a good set of
criteria. He stated he would like to give the public confidence that the Council was "engaged and
involved" in the process.
Councilmember Ohlson stated the authors of the Ordinance intended no more powers to this Board
than the NRAB currently had and perhaps there would be less power because of the reporting
requirements.
Councilmember Roy stated the Council had approved a $350 million budget and none of the
Councilmembers would expect staff to keep Council to date on every expenditure, even though the
budget was the Council's responsibility.
Councilmember Weitkunat stated she would like a mechanism to keep Council informed about what
was going on with the purchase of open space.
Councilmember Manvel stated Council was not part of the decision on many expenditures made by
staff.
Councilmember Weitkunat stated the difference was that this was a citizen board.
Councilmember Kastein stated the reporting mechanism would be there to keep Council informed.
He stated his concern was with large purchases. He would like staff to spend more time on this prior
to Second Reading. City Manager Atteberry stated this issue could be better addressed as a separate
Resolution.
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November 29, 2005
Councilmember Ohlson spoke regarding the process followed by the NRAB in the past and stated
the Board was not the decision -making body. He stated this Board would not be the decision -
making body.
Councilmember Weitkunat asked for clarification.
Councilmember Ohlson stated the new Board would not make purchase decisions and would advise
the Council and staff. He stated staff would make the final purchases.
Mayor Hutchinson stated perceptual issues needed to be addressed. He stated the issue was
oversight and accountability.
Councilmember Ohlson stated there was some misperception that the NRAB and the new Board
would make the purchase decisions.
Councilmember Roy made a motion, seconded by Councilmember Manvel, to adopt Ordinance No.
169, 2005 as amended.
Councilmember Roy stated the Board would be "exceptional."
Councilmember Ohlson stated quarterly and annual financial reports would be prepared.
Councilmember Weitkunat stated she misunderstood what was written in the Ordinance because she
thought the Board was being created to spend the money.
Mayor Hutchinson stated this was an important item and would "raise the level of consciousness"
about the spending of more than a quarter of a billion dollars. He stated there needed to be "better
public confidence" and "more explicit' Council involvement.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein,
Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Other Business
Councilmember Weitkunat asked if there was Council support to initiate discussions with staff
regarding the downtown and appropriate land uses (a mix of businesses).
Mayor Hutchinson noted that sufficient support was indicated to initiate those discussions.
Adiournment
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November 29, 2005
Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to adjourn the
meeting to December 13, 2005 at 6:00 p.m. to consider going into Executive Session to conduct
annual performance reviews for the City Manager, City Attorney and Municipal Judge. Yeas:
Councilmembers Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED
The meeting adjourned at 12:10 a.m. on Wednesday, Nov er 3 , 2005 4�-
K
Mayo '
ATTEST:
City Clerk
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