HomeMy WebLinkAboutMINUTES-02/01/2005-RegularFebruary 1, 2005
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, February 1, 2005,
at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was answered
by the following Councilmembers: Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and
Weitkunat.
Staff Members Present: Atteberry, Krajicek, Roy.
Citizen Participation
Mayor Martinez stated each speaker would have three minutes to speak.
Al Baccili, 520 Galaxy Court, spoke in opposition to the fee paid to vendors to collect sales taxes.
Ralph Olson, 730 West Olive Street, stated he opposed repeal of the grocery tax. Mayor Martinez
stated this item was scheduled for Council discussion later in the agenda.
Jennifer Carpenter, 375 East Horsetooth Road, congratulated the City for receiving the Preserve
America Award. She spoke regarding proposed changes to the historic preservation ordinance and
stated the Code changes that needed to be made had been made. She stated almost 3,000 historic
structures had gone through the process and that there had been only one appeal. She asked that the
Council leave the ordinance in its present form.
Neil Hurst, 5221 Griffiths Drive, President of Fossil Creek Meadows Association, spoke in
opposition to the Southwest Enclave Annexation. He stated a majority of the Association's
members were "vehemently opposed to and outraged by" the proposed annexation. He stated the
residents of the area had not requested or voted for such an annexation.
Allison McGee, Colorado State Historical Fund employee, congratulated the City for receiving the
Preserve America Award. She stated historic preservation provided the community with aesthetic
and economic benefits.
Jan Hampshire, Fossil Creek Meadows Subdivision resident, stated the Southwest Enclave
Annexation would put a financial burden on retired and other residents. She stated she was opposed
to the Annexation.
Rheba Massey, 1400 Freedom Lane, expressed concern that small structures would not be protected
unless they were "grand and significant to the history." She expressed a concern that historic
character would be lost if smaller structures were tom down. She asked the Council to consider
other ways of protecting those neighborhoods i.e. historic overlay zones and other methods.
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February 1, 2005
Kevin Murray, 700 East Drake Road, historic preservation contractor, expressed concerns with
changes to the historic preservation ordinance. He supported keeping the ordinance in its present
form.
Jane Hale supported keeping the historic preservation ordinance in its present form
Mark Dailey, 409 Greenvale Drive, Fossil Creek Meadows Association, opposed the Southwest
Enclave Annexation. He stated increased fees would create a hardship for young families and
retirees who lived in the entry level housing in the area. He asked how the City could guarantee
police service to the annexation area without increasing the size of the police force.
Nick Mitchell, 2901 Somerville Drive, expressed concerns relating to proposed changes to the
historic preservation ordinance. He stated historic preservation made the Old Town area unique and
gave it economic vitality and aesthetic appeal.
Gene J. Fickto, 5430 Fossil Court North, spoke against the Southwest Enclave Annexation. He
stated the residents of the area would not be given a chance to vote on the Annexation. He
questioned the annexation of this enclave that was surrounded by natural areas. He stated increased
fees would cost individual homeowners up to $500 per year.
Gina Deshaes, RN, noted that the City's website and annual water quality report contained a warning
regarding fluoridation stating: "If you or members of your household are sensitive to fluoride or
fluoridation -related substances, or provide City water to an infant younger than six months of age,
please consult with your physician or health expert regarding fluoridation -related precautions you
may want to consider." She stated it was difficult to determine sensitivity to fluoride exposure from
drinking water and foods. She stated the City's warning should indicate that infants should not drink
fluoridated water and should not have it added to anything. She asked voters to vote to remove
fluoridation from the public water supply.
Kelly Ohlson, 2040 Bennington Circle, stated the open space parcels surrounding the Southwest
Enclave Annexation area were not acquired with the intent to create an enclave. He stated the City
could choose not to annex the enclave and urged the Council to let the area residents know if there
was no intent to proceed with the annexation.
Angie Aguilera, Fort Collins resident, opposed changing the historic preservation ordinance to
weaken it. She stated changes adopted in December had fixed conflicting Code provisions.
David May, Fort Collins Chamber of Commerce Executive Director, stated the vendor's fee was a
reimbursement for some of the expense of collecting the sales taxes on behalf of the City.
Shannon Karheem, potential home buyer in the Fossil Creek area, spoke against the Southwest
Enclave Annexation. She stated she and her husband would no longer be able to afford to live in
the area if it was annexed because of increased fees and taxes.
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February 1, 2005
Citizen Participation Follow-up
Mayor Martinez stated the Council had answered questions about the vendor's fee in letters and
public statements many times.
Councilmember Weitkunat stated the vendor's fee was the 3% portion kept by businesses out of the
sales taxes collected. She noted that the City was keeping 1% that had previously been kept by
businesses to fund the City's economic vitality and sustainability group and a director's position to
look at economic issues within the community.
Councilmember Hamrick thanked the residents of the southwest enclave for speaking. He stated the
intergovernmental agreement with Larimer County specified that the City must take a look at the
area for annexation but that there was no requirement that the City annex. He stated there would
be a study session on the matter on February 22. He noted that part of the vendor's fee was taken
by the City to use for economic development. He stated he was interested in tailoring the remaining
vendor fee for smaller businesses rather than larger businesses that could afford their own
administration and accounting for the sales tax.
Councilmember Bertschy thanked those who spoke about the City's award for historic preservation.
He stated Fort Collins was the third community in Colorado to qualify for the award and that the
City met all 10 award criteria. He stated the study session on the potential changes to the historic
preservation ordinance would be next week.
Councilmember Tharp stated she hoped that the study session on the Southwest Enclave Annexation
would clarify issues relating to cost.
Councilmember Roy asked the City Attorney to prepare information on how a vote could be held
on an annexation. He stated he was "heartened" to hear the concerns expressed about what would
weaken the historic preservation ordinance.
Councilmember Kastein stated he had received many a -mails relating to the historic preservation
issue. He stated historic preservation had helped to maintain the character of the City and had
improved property values. He stated the Council had discussed maintaining historic preservation
in its current form while ensuring that the property owner would have the final decision relating to
the property. He stated the main part of the historic preservation ordinance was good and that there
was a small amount of work left to do.
A¢enda Review
City Manager Atteberry stated there were no changes to the published agenda.
February 1, 2005
CONSENT CALENDAR
Consideration and approval of the regular Council meeting minutes of January 4. 2005.
Second Reading of Ordinance No. 006, 2005, Authorizing the Lease of Property to be
Acquired for Wellington Community Separator to Turf Master Ltd., for a Sod Farm and
Related Uses.
Pursuant to the City of Fort Collins Land Conservation and Stewardship Master Plan, staff
has negotiated a Purchase & Sale Agreement with Barran Enterprises, LLC for
approximately 450 acres located in the Wellington Separator Area. The property is currently
operated as a sod farm by Turf Master, LTD., and a condition of the sale of the property is
an assignable Lease Agreement to the existing operator. Ordinance No. 006, 2005, was
unanimously adopted on First Reading on January 18, 2005.
9. Second Reading of Ordinance No. 007, 2005, Authorizing the Conveyance of Right -of -Way
and Non -Exclusive Utility Easements to the Colorado Department of Transportation for Use
for a New Public Rest Area.
This is a new request from the Colorado Department of Transportation (CDOT) with regard
to the already approved rest area facility and associated access. To meet traffic
requirements, CDOT will need to install a signal and a left turn lane off of East Prospect
onto the frontage road that provides access to the rest area. CDOT also needs to install gas,
water and sewer service lines into the rest area. These items relate to the previous City
Council approval of a voluntary exchange of parcels to allow the Colorado Department of
Transportation to develop a new rest area immediately south of the current Welcome Center
on East Prospect Road near Interstate 25. At the time the exchange was approved, Council
also approved related temporary and permanent easements. The requested conveyances in
this item are in addition to those previously approved. Ordinance No. 007, 2005, was
unanimously adopted on First Reading on January 18, 2005.
10. Second Reading of Ordinance No. 008, 2005, Authorizing the Conveyance of Certain Real
Property and Authorizing the Grant of a Temporary Construction Easement at Meadow
Springs Ranch to Weld County.
In 1999, the Weld County Public Works Department identified a need to improve
connectivity between US 85 and I-25 in northern Weld County to serve regional
transportation needs as well as local farmers and ranchers. Weld County Road ("WCR")126
was chosen as the route that would connect these principal state highways in an east -west
fashion. This route provided the only connection in a 20-mile segment from WCR 100 north
to the Colorado/Wyoming border. Ordinance No. 008, 2005, was unanimously adopted on
First Reading on January 18, 2005.
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February 1, 2005
11. Items Relating to the Fort Collins -Loveland Municipal Airport.
A. Second Reading of Ordinance No. 005, 2005, Authorizing the Appropriation of
Operating Funds of the Fort Collins -Loveland Municipal Airport for the Fiscal Year
Beginning January 1, 2005, and Authorizing the Appropriation of Unanticipated
Revenue and Prior Year Reserves for Capital Improvements at the Fort Collins -
Loveland Municipal Airport.
B. Resolution 2005-004 Authorizing the Execution of Grant Agreement with the State
of Colorado for Funding of Airport Projects at the Fort Collins -Loveland Municipal
Airport.
Item A is the Airport appropriation ordinance on second reading. The 2005 operating budget
for the Fort Collins -Loveland Municipal Airport totals $530,470, and will be funded from
Airport operating revenues, contributions from the Cities of Fort Collins and Loveland, and
interest earnings. This Ordinance, which was unanimously adopted on First Reading on
January 18, 2005, appropriates the City's 50% share of the 2005 Airport budget, totaling
$265,235. In addition, this Ordinance appropriates the City's 50% share of capital
improvements, not included in the 2005 Airport operating budget.
Item B is a Resolution authorizing the City's receipt of a state grant. Adoption of the
Resolution authorizes the City to execute a grant agreement with the State of Colorado to
assist in funding various capital projects at the Airport. The City's share of the grant
proceeds totals $30,881 and is included in the $641,001 appropriation. The grant will be
used to provide the local matching funds for the federally funded Airport improvements, to
analyze fuel contamination areas at the Airport, and to provide aircraft rescue and
firefighting equipment.
12. First Reading of Ordinance No. 009, 2005 AppronriatingPrior Year Reserves in the Natural
Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the
2005 Adopted City Budget.
In 2004 the Natural Areas Fund was created to comply with accounting standards.
Ordinance No. 55, 2004 reallocated funds from the Capital Projects Fund (a non -lapsing
fund) into the Natural Areas Fund (a lapsing fund). The purpose of the previously
appropriated funds remains the same; land conservation, construction of parking lots, fences
and trails, restoration wildlife habitat and other natural areas program needs to benefit the
citizens of Fort Collins.
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13. First Reading of Ordinance No. 010.2005, Appropriating Unanticipated Grant Revenue in
the General Fund for the Natural Resources Radon Program and Authorizing the Transfer
of Matching Funds Previously Appropriated in the Natural Resources Operating Budget to
the Grant Project.
This Ordinance appropriates $15,000 in Colorado Department of Public Health and
Environment grant funds in the General Fund for the Radon Program. It also authorizes the
transfer of $15,000 from the Natural Resources operating budget to the Grant Fund. The
funds will be used to continue the radon education and testing program.
14. First Reading of Ordinance No. 011, 2005, Appropriating Prior Year Reserves.
City Council authorized expenditures in 2004 for various purposes. The authorized
expenditures were not spent or could not be encumbered in 2004 because:
There was not sufficient time to complete bidding in 2004 and therefore, there was
no known vendor or binding contract as required to expend or encumber the monies.
The project for which the dollars were originally appropriated by Council could not
be completed during 2004 and reappropriation of those dollars is necessary for
completion of the project in 2005.
To carry on programs, services, and facility improvements in 2005 with unspent
dollars previously appropriated in 2004.
Because of the above circumstances, the unexpended and/or unencumbered monies lapsed
into individual fund balances at the end of 2004.
15. Items Pertaining to the Mason Transportation Corridor Trail Project.
A. Resolution 2005-005 Authorizing the Mayor to Enter into an Intergovernmental
Agreement with the Colorado Department of Transportation in order for the City to
Receive Grant Funding for the Mason Transportation Corridor Trail Project.
B. First Reading of Ordinance No. 012, 2005, Appropriating Unanticipated Revenue in
the Building Community Choices Capital Projects Fund - Mason Transportation
Corridor Trail Design - Spring Creek Trail North Project for Design of the Mason
Transportation Corridor Trail North from the Spring Creek Trail and Connecting
With the Colorado State University Campus.
These Council actions will authorize the Mayor to enter into an agreement with the Colorado
Department of Transportation (CDOT) for the City to receive the grant for the Mason
Transportation Corridor (MTC) Trail project as well as appropriate these new grant funds
into the project's budget. This new grant from CDOT will fund the design of the MTC Trail
north from the Spring Creek Trail to connect with the Colorado State University campus. In
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February 1, 2005
the future, the City will continue to pursue additional grant funding to cover the construction
costs for this segment of the MTC Trail. This extension of the MTC Trail northward from
the Spring Creek Trail is consistent with the adopted Master Plan for the Mason
Transportation Corridor Project.
16. Items Relating to an Intergovernmental Agreement with the Colorado Department of
Transportation to Accept and Appropriate Funds Offered for the Design and Construction
of the Lemay Avenue Southbound Right Turn Lane at Mulberry Street.
A. Resolution 2005-006 Authorizing the Mayor to Enter Into an Intergovernmental
Agreement with the Colorado Department of Transportation in Order for the City to
Receive Grant Funding for the Design, Right -of -Way Acquisition and Construction
of a Right Turn Lane in Lemay Avenue at Mulberry Street.
B. First Reading of Ordinance No. 013, 2005, Appropriating Unanticipated Revenue in
the Capital Projects Fund - Minor Streets Project to be used with Existing
Appropriations for the Design and Construction of the Lemay Avenue Southbound
Right Turn Lane at Mulberry Street.
The City applied for and received the offer of Congestion Mitigation and Air Quality
("CMAQ") funds for FY 2004-2005 to install a right turn lane for southbound Lemay
Avenue at Mulberry Street.
17. First Reading of Ordinance No. 014, 2005, Appropriating Unanticipated Revenue in the
Transit Fund to Support Alternative Modes of Transportation in the Transportation Demand
Management Program.
These funds were received from the North Front Range Transportation & Air Quality
Council's Congestion Mitigation and Air Quality ("CMAQ") grant program. This program
is administered by the Colorado Department of Transportation. This funding will permit
additional financial support of alternative modes in the SmartTripsTM program.
18. First Reading of Ordinance No. 015, 2005, Making Various Amendments to the Land Use
Code.
On December 7, 2004 during consideration of First Reading of the Fall 2004 Land Use Code
revisions, and again on December 21 during Second Reading, Council voted to conditionally
allow drive-in restaurants in the N-C zone, subject to the establishment of design standards.
Since that time, staff has worked closely with a potential applicant, a local franchisee of a
national chain restaurant, to craft a set of design standards. The design standards are
intended to balance the permitting of the use with the desire to ensure neighborhood
compatibility.
The Planning and Zoning Board voted 6-0 at its January 20, 2005 meeting to recommend
approval of the design standards for drive-in restaurants in the N-C zone.
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February 1, 2005
City Council also approved specific Code amendments on December 21, 2004 that further
restrict the minimum lot frontage requirements for buildings constructed side -by -side within
the Neighborhood Conservation Medium Density (NCM) and Neighborhood Conservation
Buffer (NCB) zone districts. Upon further review of these approved Code changes, it was
determined that text changes suggested by staff at the hearing did not accurately capture the
direction given by the Council. Therefore, staff is proposing revised language that will more
accurately extend the limitation on "skinny houses" to all uses.
19. First Reading of Ordinance No. 016, 2005, Designating the First Public School / First
Catholic Church Building, 115 Riverside Avenue, Fort Collins. Colorado, as a Fort Collins
Landmark Pursuant to Chapter 14 of the City Code.
The owners of the property, Michael Braskich and Bianca Katz, are initiating this request
for Fort Collins Landmark designation of the First Public School / First Catholic Church
Building. This property is undisputably one of the most significant properties in Fort
Collins, for its association with important events and individuals that have made a significant
contribution to local history. Additionally, due to its association with the original settlement
of Fort Collins, the property has a very high probability of yielding information, including
artifacts, important to the history of Fort Collins. The building was specifically constructed
as the first public schoolhouse in Fort Collins, and predates the official establishment of the
Fort Collins townsite. It is thus one of the oldest buildings in the city. Despite modifications
to the building associated with its use as a private dwelling, the building retains sufficient
integrity to convey its significance. The building was entered on the National Register of
Historic Places in 1980, as a contributing element of the Laurel School Historic District.
Due to its unique role in Fort Collins' history, the First Public School / First Catholic Church
Building warrants the community's highest recognition, and should be designated
individually as a Fort Collins Landmark.
20. First Readin¢ of Ordinance No. 017, 2005, Desi ng ating the Dukes/Dunlap Garage, 501
Stover Street, Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of
the City Code.
The Dukes/Dunlap property contains both a house and garage. At its December 8, 2004
meeting, the Landmark Preservation Commission found the house to be eligible for
Landmark designation, and forwarded this recommendation to Council. On January 18,
2005, Council adopted Ordinance No. 003, 2005 on Second Reading, designating the
Dukes/Dunlap House as a Fort Collins Landmark.
The property owner, Mona Frayer, is requesting that the garage also be designated as a
Landmark. At the Landmark Preservation Commission's January 12 meeting, Ms. Frayer
provided detailed information on the history and architecture of the Dukes/Dunlap Garage.
The Commission found that the garage is eligible for Landmark designation, and passed
Resolution 3-2005, recommending this designation to Council. Qualifying under Standard
3, the Dukes/Dunlap Garage embodies the distinctive characteristics of a type, period, and
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February 1, 2005
method of construction, and contributes to the historical and architectural significance of
both the Dukes/Dunlap property and of the Fort Collins community. Further, the
Dukes/Dunlap Garage exhibits excellent integrity, retaining all seven qualities of location,
design, setting, materials, workmanship, feeling, and association.
21. First Reading of Ordinance No. 018, 2005, Desi ngnating the Snook/Hale House and Two
Garages, 220 South Sherwood Street, Fort Collins. Colorado, as a Fort Collins Landmark
Pursuant to Chapter 14 of the City Code.
The owners of the property, Leroy and Marie Twarogowski, are initiating this request for
Fort Collins Landmark designation of the Snook/Hale House and Two Garages. The
Snook/Hale House is an excellent example of Craftsman architecture, with very good
integrity. The two garages date to the period of significance and are eligible for designation
under Standard 3. Both demonstrate good integrity, and contribute to the historical and
architectural significance of the property.
22. Resolution 2005-007 Making Appointments to Various Boards and Commissions.
Vacancies currently exist on several boards and commissionts due to expiration of terms
which were not filled during the annual appointment process. The application deadline was
extended to solicit additional applications for those boards lacking sufficient applications to
fill existing vacancies. This Resolution makes appointments to those boards and
commissions.
23. Routine Easements.
A. Easement Dedication from Poudre School District, for emergency vehicle access to
Zach Elementary School, located at 3715 Kechter Road. Monetary consideration: $0.
***END CONSENT***
Ordinances on Second Reading were read by title by City Clerk Krajicek.
8. Second Reading of Ordinance No. 006, 2005, Authorizing the Lease of Property to be
Acquired for Wellington Community Separator to Turf Master Ltd., for a Sod Farm and
Related Uses.
9. Second Reading of Ordinance No. 007, 2005, Authorizing the Conveyance of Right -of -Way
and Non -Exclusive Utility Easements to the Colorado Department of Transportation for Use
for a New Public Rest Area.
10. Second Reading of Ordinance No. 008, 2005, Authorizing the Conveyance of Certain Real
Property and Authorizing the Grant of a Temporary Construction Easement at Meadow
Springs Ranch to Weld County.
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February 1, 2005
11. A. Second Reading of Ordinance No. 005, 2005, Authorizin the he Appropriation of
OOerating Funds of the Fort Collins -Loveland Municipal Airport for the Fiscal Year
BeginningJanuary anuary 1, 2005, and Authorizing the Appropriation of Unanticipated
Revenue and Prior Year Reserves for Capital Improvements at the Fort Collins -
Loveland Municipal Airport.
32. Second Reading of Ordinance No. 004, 2005, Amending the Duties and Functions of Boards
and Commissions to Provide Input to the Decision Maker Regarding Project Development
Plans.
Ordinances on First Reading were read by title by City Clerk Krajicek.
12. First Reading of Ordinance No. 009, 2005 Appropriating Prior Year Reserves in the Natural
Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the
2005 Adopted City Budget.
13. First Reading of Ordinance No. 010.2005, Appropriating Unanticipated Grant Revenue in
the General Fund for the Natural Resources Radon Program and Authorizing the Transfer
of Matching Funds Previously Appropriated in the Natural Resources Operating Budget to
the Grant Project.
14. First Reading of Ordinance No. 011. 2005, Appropriating Prior Year Reserves.
15 B. First Reading of Ordinance No. 012, 2005, Appropriating Unanticipated Revenue in
the Building Community Choices Capital Projects Fund - Mason Transportation
Corridor Trail Design - Spring Creek Trail North Project for Design of the Mason
Transportation Corridor Trail North from the Spring Creek Trail and Connecting
With the Colorado State University pus.
16 B. First Reading of Ordinance No. 013, 2005, Appropriating Unanticipated Revenue in
the Capital Projects Fund - Minor Streets Project to be used with Existing
Appropriations for the Design and Construction of the Lemav Avenue Southbound
Right Turn Lane at Mulberry Street.
17. First Reading of Ordinance No. 014, 2005. Appropriating Unanticipated Revenue in the
Transit Fund to Support Alternative Modes of Transportation in the Transportation Demand
Management Program.
18. First Reading of Ordinance No. 015, 2005, Making Various Amendments to the Land Use
Code.
19. First Reading of Ordinance No. 016, 2005, Designating the First Public School / First
Catholic Church Building, 115 Riverside Avenue, Fort Collins, Colorado, as a Fort Collins
Landmark Pursuant to Chapter 14 of the City Code.
February 1, 2005
20. First Reading of Ordinance No. 017, 2005, Desi ng atine the Dukes/Dunlap Garage, 501
Stover Street Fort Collins, Colorado, as a Fort Collins Landmark Pursuant to Chapter 14 of
the City Code.
21. First Reading of Ordinance No. 018, 2005, Designating the Snook/Hale House and Two
Garages 220 South Sherwood Street, Fort Collins, Colorado, as a Fort Collins Landmark
Pursuant to Chapter 14 of the City Code.
29. First Reading of Ordinance No. 022, 2005, Amending Section 25-49 of the City Code.
Increasing the Annual Income Limits for the Determination of Eli ig bility for the Sales Tax
Rebate on Food to Sixty Percent of the Median Income.
31. Items Relating to Nuisance Gatherings, Public Nuisance Amendments and Rental
Registrations.
A. First Reading of Ordinance No. 019, 2005, Amending Chapter 20 to Add a New
Article Relating to Nuisance Gatherings.
B. First Reading of Ordinance No. 020, 2005, Amending Chapter 20, Article VIII of the
City Code Relating to Abatement of Public Nuisances.
C. First Reading of Ordinance No. 021, 2005, Amending Article VI, Division 2 of the
City Code Relating to Residential Rental Registration.
Councilmember Bertschy made a motion, seconded by Councilmember Kastein, to adopt and
approve all items on the Consent Calendar. The vote on the motion was as follows: Yeas:
Councilmembers Bertschy, Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED
Consent Calendar Follow-up
Councilmember Roy spoke regarding item #8 Second Reading of Ordinance No. 006, 2005,
Authorizing the Lease of Property to be Acquired for Wellington Community Separator to Turf
Master Ltd., for a Sod Farm and Related Uses.
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Staff Reports
City Manager Atteberry reported on the status of the proposed Summit Lifestyle Center at Ziegler
Road and Harmony Road. He stated work was progressing on planning and design efforts. He
stated the City was working with Bayer Properties on the wording of the development agreement,
architectural design of buildings on the site, and infrastructure designs. He stated the developer's
approach was that this was not a speculative project and that ground would not be broken until the
facility was fully leased. He stated staff would be meeting with the developer the following day to
get another project update. He also reported on his and the Mayor's participation in a press
conference earlier in the day at which Lt. Governor Norton presented the final report of the CSU
Alcohol Task Force to Dr. Penley. He stated the task force had presented 47 recommendations to
Dr. Penley, and that he had chaired a subcommittee and that Police Chief Harrison had participated
in a subcommittee. He stated the report would be published on the City's website. He stated he had
asked Chief Harrison to lead an interdisciplinary team within the City organization to look at City
policies, ordinances and approach to alcohol. He stated a study session would be scheduled within
the next 45 days to present the team's report.
Mayor Martinez stated the task force's report was detailed and that the task force represented all
segments of the community. He stated there were discussions at the press conference about
exploring a Campus West police substation in partnership with CSU.
Councilmember Reports
Councilmember Tharp reported that the I-25 Policy Committee had made some progress. She stated
a recent report listed major developments in all of the participating entities. She asked that the staff
give each Councilmember a copy of that report. She noted that there was a vacancy on the Open
Space Subcommittee due to the death of Bill Neal. She stated she also participated in a regional
assessment meeting of the joint Loveland -Fort Collins airport with the FAA.
Councilmember Bertschy reported that the Finance Committee discussed: (1) budget impact
scenarios should the grocery tax be repealed; (2) the agenda item summary for the ordinance that
would be considered on the sales tax rebate program; and (3) the Resolution expressing Council's
opposition to the grocery tax repeal.
Councilmember Weitkunat reported that she and the Mayor met with the School District and the
County and that there were three points of interest: (1) state legislation relating to urban renewal
authorities; (2) transportation issues relating to coordination of the Transfort system to transport
students; and (3) sales tax issues and the impact on the School District and County if the food sales
tax was repealed.
Councilmember Kastein reported that the Ad Hoc Benefits Committee decided that the Committee
should not continue and that benefits issues should be discussed by the Finance Committee. He
stated the Ad Hoc Benefits Committee discussed sequencing of changes in benefits and salaries for
City employees. He stated the committee would meet twice more before combining its efforts with
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February 1, 2005
the Finance Committee.
Ordinance No. 004, 2005,
Amending the Duties and Functions of Boards and Commission
to Provide Input to the Decision Maker Regarding Project
Development Plans, Laid on the Table Indefinitely on Second Reading
Councilmember Bertschy made a motion, seconded by Councilmember Hamrick, to lay on the table
Item #32, Second Reading of Ordinance No. 004, 2005, Amending the Duties and Functions of
Boards and Commissions to Provide Input to the Decision Maker Regarding Project Development
Plans. The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick,
Martinez and Weitkunat. Nays: Councilmembers Kastein, Roy and Tharp.
THE MOTION CARRIED
Mayor Martinez stated item #32 was consequently tabled.
Consideration of the Appeal of the Feather Ridge Project
Development Plan, Current Planning File #20-04A, Decision of
the Plannin¢ and Zoning Board, Remanded to the Planning and Zoning Board
The following is staff's memorandum on this item.
"EXECUTIVE SUMMARY
The Feather Ridge Project Development Plan is a requestfor a small scale reception center located
on 15 acres of land north of Hewlett-Packard and east of the Woodland Park Estates Subdivision.
The project was presented to the Planning and Zoning Board for consideration on December 2,
2004. The Planning and Zoning Board denied the project by a 3 — 3 vote.
An appeal was fled in the City Clerk's Office on December 16, 2004 by attorney James Martell,
representing the applicants Ryan Baker, Julie Baker, and Wendi Meyer. An amended notice of
appeal was filed on December 30, 2004.
The appeal is based on Section 2-48(b)(1) and Section 2-48(b)(2) of the City Code which states the
Planning and Zoning Board improperly denied the Feather Ridge Project Development Plan by:
Failure to properly interpret and apply relevant provisions of the Code and
Charter;
2. Failure to conduct a fair hearing in that:
February 1, 2005
a. The board or commission failed to conduct a fair hearing in
that the Board's decision exceeded its authority or
jurisdiction; and
b. The board or commission considered evidence relevant to its
findings which was substantially false or grossly misleading.
A staff memorandum is attached which provides a staff response and an analysis of the allegations
raised in the appeal notice. The transcript of the December 2, 2004 Planning and Zoning Board
meeting and the December 2, 2004 Staff Report to the Planning and Zoning Board are attached. "
Mayor Martinez stated each side would have 20 minutes for a presentation and that each side would
have 10 minutes for rebuttal.
City Attorney Roy explained the appeal hearing process and the options available to the Council at
the conclusion of the hearing i.e. to uphold, overturn or modify the decision of the Planning and
Zoning Board or to remand it back to the Board. He stated a Resolution would be brought forth at
the next Council meeting formalizing the Council's decision. He stated one of the parties -in -interest
requested that the Council conduct a visit to the site because the Planning and Zoning Board had
done so and the site was viewed as an "exhibit." He stated in order to accommodate that request the
Council did conduct a site visit attended by four Councilmembers and that the site visit was
videotaped and provided to the three Councilmembers who were unable to attend.
City Manager Atteberry withdrew from the meeting due to a perceived conflict of interest.
(Secretary's Note: City Manager Atteberry left the room at this point, and Deputy City Manager
Jones took his place at the staff table.)
Cameron Gloss, Director of Current Planning, stated the Council approved an amendment to Section
3.8.2(7) of the Land Use Code to amend the list of permitted uses in the Urban Estates zoning
district to allow small scale reception centers with specific performance standards. He stated those
standards provided that the reception center would be located a minimum of 300 feet from all
existing uses, that all outdoor social gathering spaces associated with the center would be located
within 100 feet of the building and no less than 300 feet from the nearest dwelling on abutting
property, that vehicular access to the reception center be taken only directly from an arterial street,
and that adequate buffering (fences, berms, landscaping, etc.) must be provided between two uses
so that there would be screening of the outdoor activity. He stated the site was immediately north
of the Hewlett-Packard campus east of Ziegler Road and that properties immediately to the east and
north were zoned UE. He stated there were residential subdivisions to the north and west zoned RL.
He stated the site was on the edge of a neighborhood. He stated a significant feature was a canal that
ran parallel to the east boundary of the site and coincided with the the Poudre valley that was
protected through the City's habitat and resource protection ordinance. He stated there was a County
Road (Mariah Lane) running immediately east of the project site. He stated it could be easily
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extended westward into the project area crossing the ditch. He stated there was a dedicated right-of-
way connecting the end of Mariah Lane up to the ditch. He stated there were topographical
constraints relating to the preservation of the hillside and practical considerations relating to the
impact to the site to "snake" a road to meet grade requirements. He stated the Planning and Zoning
Board denied the site specific Project Development Plan for the Feather Ridge facility, including
a 3,200 square foot existing, potentially historic farmhouse on the site (Phase 1 of the center) and
a 7,500 square foot reception home. He stated the Board expressed concerns about the modification
requests. He stated one modification was the pedestrian connection to meet the City's level of
service standards from the center to Ziegler Road. He stated the applicant had since stated for the
record that they would be willing to make that pedestrian connection. He stated the greatest area
of focus was the distance between the historic farmhouse and the closest abutting residence (220
feet, whereas the performance standards required 300 feet). He stated staff recommended to the
Board that the application be approved based on compliance with the design standards of Article 3
and the use standards of Article 4, including the performance standards for the reception center use.
He stated staff felt that the modification requests collectively were not detrimental to the public
good, were not caused by the applicant and that there were contraints relating to the historic
farmhouse. He stated the Board voted 3-3 on the matter. He stated the appellant would have a
presentation on the site contextual issues and the specific grounds listed in the appeal.
Mayor Martinez stated the appellants would have 20 minutes for a presentation.
James Martell, attorney representing the applicant, stated the primary issue in this case was "direct
access" onto an arterial, which was Ziegler Road. He stated the appellant believed that there was
direct access because the applicants owned 30 feet of land that touched Ziegler Road. He stated this
was an unusual situation. He briefly traced the ownership of the property (Feather Ridge, Woodland
Estates, and property that was now H-P). He stated the properties were owned by Mr. and Mrs.
Matney, who in 1968 conveyed Woodland Park subject to the reservation to the sellers of a road
right-of-way for public use over the north half of this road. He stated the Matneys in 1975 conveyed
the south property to Hewlett-Packard, making another reservation for road right-of-way for public
use over the south half of this road. He stated there were therefore two different reservations. He
stated in 1975 the Matneys conveyed whatever they owned as reserved rights -of -way to Larimer
County. He stated in 1995 they conveyed the Woodland Park property to the Strachans by warranty
deed, including the north half of this road. He stated in 1995 the Strachans conveyed this to the
developer. He stated the plat of Woodland Park indicated that this road was not part of that
development. He stated in 2000 the developer conveyed this 30-foot strip one-half to the owner of
the Feather Ridge property (Dr. and Mrs. Thomas) and one-half to the owners of Outlot A. He
stated the applicants in this case (Mr. and Mrs. Baker and Ms. Meyers) owned Feather Ridge, the
30-foot strip (the one-half interest), Outlot A and the 30-foot strip (the one-half interest) that went
with Outlot A. He stated all of these transactions were conveyed by warranty deed subject to the
County's right-of-way. He stated they were not shown on the plat of Woodland Park, the annexation
plat of this property, or any plat. He stated in terms of "direct access" the property owner owned the
property that touched Ziegler Road. He stated there was nothing more "direct" than ownership of
the property that actually touched the road. He stated at the Planning and Zoning Board meeting the
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discussion was that this was not what was intended i.e. a 1,200 foot driveway. He stated this was
brought up by two of the Board members. He stated three members voted in favor of this, and the
fourth member (Ms. Carpenter) stated specifically that the project had met the technical requirement
and that this met the letter of the law for "direct access." He stated Ms. Carpenter was concerned
about septic and asked questions of the City Attorney regarding the meaning of the term "direct" and
who was to interpret that. He stated the ordinance was adopted by the City Council, not by the
Planning and Zoning Board. He stated it was Council's interpretation of the word "direct" that had
bearing. He stated it was significant that the road would be physically constructed on the south half
in order to accommodate the neighhbors i.e. on H-P's part of this easement that was zoned Harmony
Corridor. He stated the road itself would therefore be constructed within the Harmony Corridor
zoning district. He stated the staff report used several possible definitions and that the project met
every one of those definitions that applied. He stated the first one was "there is no intervening
space." He stated the applicant owned the property that touched Ziegler Road and that there was
no "intervening space." He stated the second definition was "a straight line" and that this driveway
would be a straight line from Ziegler Road to the property. He stated the third definition was
"straight on a defined course" and that the project also met this definition. He stated the staff relied
mainly on the definition that "there is no intervening agency" and that the staff viewed this as "not
going through any subdivision." He stated this would be on commercially zoned H-P property. He
stated the final criteria was the "close relative proximity" and that the Planning and Zoning Board
seemed to have trouble with this criteria. He stated one Board member suggested that this met
pulling right off the street into a parking lot. He stated if this had been the intent that the issue
should not have been "direct access" and should have been minimum setbacks for the parking lot
or minimum setbacks for the building itself. He stated instead the reference was to the "access
road." He stated in this particular case the access was "direct" off of Ziegler Road and ran straight
along a straight line to the property. He stated there was some Board discussion about its length.
He stated there was no way to make that determination from the language of the statute, which did
not set any kind of limit or maximum distance, any kind of width, or frontage ownership
requirement. He stated the applicant had done everything possible to minimize any impact by the
road on the neighborhood and had met all of the performance criteria. He stated the Planning and
Zoning Board clearly misinterpreted the word "direct" in its discussions. He asked that the Board's
decision be reversed.
Linda Ripley, representing the applicant, stated the vision for Feather Ridge was that it would be a
"peaceful and serene place." She stated it was intended to be a quiet setting for a retreat, seminar
or conference or to celebrate a special occassion and small gatherings. She stated it would not be
a place for music venues, concerts, wild parties or sporting events. She stated it would be a "classy
place" that required a "pastoral setting" to be successful. She thanked the Council for taking the
time to visit the site. She stated was zoned UE and was a transitional site sandwiched between an
industrial site and a medium density neighborhood. She stated the site was accessed from Ziegler
Road via a private country lane leading to the historic farmhouse on the property. She stated her
clients hoped to use the historic farmhouse for small outdoor weddings, seminars or afternoon teas.
She stated the house and sideyard were similar in scale to the Avery House and would be used in
a similar way. She stated this would be a "wonderful opportunity" for the community to showcase
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one its historic resources. She stated the tall trees, ponds and natural areas on the site not only
contributed to the pastoral setting but also provided significant buffering from the adjacent
neighborhoods. She stated the proposed Feather Ridge PDP presented to the Planning and Zoning
Board on December 2 met all of the performance standards for a reception center in the following
ways: Performance Standard A, Lot Size - She stated the proposed site was over 15 acres in size,
more than double the seven acre minimum required; Performance Standard B, Building Size - She
stated the ballroom facility proposed for the site was 7,500 square feet, including conference and
meeting rooms on the first floor and a ballroom facility on the lower level, with the ballroom being
between 4,500 and 5,000 square feet, and that the historic farmhouse would have about 2,000
square feet on the ground floor proposed to be used for seminars, meetings or small parties, meaning
that the combined square footage of all buildings being used as part of the reception center facility
was well under the 15,000 square foot limitation; Performance Standard C, Building Location and
Separation from Residential Areas - She stated the ballroom facility was more than the required 300
feet from the nearest residence, while the historic farmhouse was only 220 feet from the nearest
residence, requiring a modification to the standard and providing an opportunity to preserve an
historic resource and make it available to the public to use and appreciate; Performance Standard
D, Outdoor Spaces, Location and Separation from Residential Areas - She stated the activity zone
for the ballroom facility was within 100 feet of the facility as required and was more than 300 feet
from the nearest residence, and that although the farmhouse facility was only 220 feet from the
nearest residence the activity center for outdoor activites was located east of the farmhouse and more
than the required 300 feet; Performance Standard E, Non -Residential Abutment - She stated 42%
of this property's boundary abutted an industrial site, substantially more than the one -sixth required,
and that this site was uniquely located on the fringe of the City in between an industrial site and a
medium density urban neighborhood; Performance Standard F, Access - She stated the proposed
project took its access directly from an arterial street, and that the site included a 30-foot wide strip
of land connecting the 15 acre site to the right-of-way at Ziegler Road, that transitional sites such
as this one were considered to be appropriate for small scale reception centers, that at the time the
UE zone's permitted uses were changed to allow small scale reception centers that the staff prepared
a map showing suitable transitional sites, that the Thomas property was on that map and that this
indicated that staff thought that this site met the locational criteria of being over seven acres, having
direct access from an arterial street, and being contiguous to more intensive zoning districts;
Performance Standard G, Buffering - She stated this project abutted single-family developments
west of the farmhouse and north of the entry drive, that the clients had put an "enourmous amount
of energy" into working with the neighborhoods to the west, that the location of outdoor activities
was moved to the east of the farmhouse instead of behind the farmhouse as originally planned so that
those activities would not be visible, that there would be 220 feet of distance between the farmhouse
and the residences, that there were existing canopy trees and rows of evergreen trees planted, that
the client had offered to move the chicken coop and plant additional trees and provide a wood screen
fence to block headlights. She stated the concerns about the entry drive were sound, visual, and
safety concerns and that the proposed mitigation measures would effectively deal with all three
concerns. She stated the average distance from the back of the existing houses to the edge of the
proposed entry drive would be approximately 65 feet. She stated the applicant was proposing the
following mitigation measures in response to concerns: the entry drive would be a paved surface
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rather than a gravel road and would be lined on both sides with low -branched crabapple trees that
would be about 20 feet tall at maturity; that 15 mph speed limit signs would be posted; that speed
tables would be installed at two locations to discourage speeding; that the drive would be shifted as
far as possible away from residences; that the Fire Department was requiring a 30-foot paved
driveway for emergency access and that the northern 10 feet would be striped for bike lane leaving
the effective driveway for vehicular use at 20 feet (10 feet further from the homes); that a six-foot
tall double sided wooden fence would be installed the entire length of the drive; and that lights
would provide enough light for drivers to see the driveway but would not go above the fence and
spill into the yards. She stated these measures would mitigate the concerns adequately; Performance
Standard H, Hours of Operation - She stated the hours of operation were being reduced from those
allowed by the performance standards and that events on Friday and Saturday nights would end at
11:00 p.m.; Performance Standard I, Noise - She stated some of the neighbors were concerned
about the sound of vehicles during peak use times and that at staffs request a sound consultant was
hired to evaluate sound issues. She stated the study indicated that average noise levels in the
neighborhood would not increase and that maximum noise levels should remain about the same.
She stated current background sound was generated from H-P and Ziegler Road. She stated a six-
foot tall double sided wood fence would provide about 3-5 decibels of noise reduction at the ground
level; Performance Standard J, Onsite Caretaker During Hours of Operation - She stated one of
the owners lived in the first house along the entry drive and that she, a manager or her business
partner would be onsite during any event; Performance Standard K, Lighting - She stated the
lighting met the lighting standards. She stated the applicants had worked "extremely hard" to get
this far in a "complex and very expensive process." She stated this project as proposed clearly met
or exceeded the performance standards as written. She requested that the City Council approve this
project so that the applicants could proceed with developing their business. She stated if an applicant
followed the rules, obeyed the procedures, worked with the neighborhoods to address and mitigate
concerns that there should be some assurance that the project was going to be approved. She stated
the applicants had worked with staff for over a year to find a way to move this proposal forward.
She stated the applicants waited while staff worked on performance standards, went through the
annexation and zoning process, and submitted a PDP. She stated the applicants worked with the
neighborhood in countless meetings and designed the project to mitigate the concerns that were
head. She stated the project met the performance standards. She stated the applicants deserved to
have their project approved.
Mayor Martinez stated the opponents would have 20 minutes for a presentation.
Jim Herlihy, 3138 Grand Teton Place, homeowner and member of the board of the Woodland Park
Homeowners' Association, stated the homeowners had a "lot more on the line" (property values and
the "serenity" of the neighborhood) than the developers. He stated the Planning and Zoning Board
had voted three times to deny approval of the Feather Ridge development and that the 130+
individuals of the homeowners' association (more than 80 households) had signed petitions against
Feather Ridge. He stated he wanted to go on the record once again to voice strong opposition to the
project. He stated Feather Ridge would have "definite, measurable and adverse effect" on the
neighborhood. He stated a professional appraisal indicated that the 14 homes abutting the access
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road would sustain significant devaluation estimated at 10-15% per residence. He stated for those
14 homes that would represent a loss of more than a half million dollars in value. He stated one
homeowner on the access road recently lost a sale on his home when the purchaser learned of the
plans for Feather Ridge. He stated besides the traffic, noise, light pollution, and commotion created
by outdoor entertainment that this development would "sandwich" these homes tightly between two
roads. He stated these homeowners would see hundreds of party -goers and revelers driving within
mere feet of their backyards and childrens' play areas. He stated there would be a risk posed by
alcohol use. He stated Mothers Against Drunk Drivers had gone on record with the City noting that
Larimer County's alcohol -related incident rate was 27% above the national average. He stated
public records showed that 52% of motor vehicle deaths in Larimer County were linked to impaired
driving, compared to a national rate of only 41 %. He stated this reception center or "social club"
would be a facility that would be serving alcohol to large numbers of people in celebrations and
social settings, introducing unnecessary "danger" to Feather Ridge's residential neighbors. He stated
the "bad fit" of this facility was measured in the words of Joe Frank, who wrote on December 22,
2003 wrote: "My research confirmed my original belief that reception centers are a commercial use
and not appropriate for any of the residential zoning districts. The noise, traffic, parking and high
level of activity that are generated by this kind of use is not compatible with any of the residential
zoning districts, including but not limited to the Urban Estates zoning district." He stated the City
already had given the developer enough chances by amending the Urban Estates zone definition to
allow the development, giving dispensation on the requirement for a second point of access to the
site, and telling the developers that they would not be bound by the limits on the length of a private
road. He asked the City to give equal consideration to the neighbors whose homes were built with
the understanding that the land around them was not zoned for this kind of development. He asked
the City to enforce the standards requiring "direct access" from an arterial street, which was a
requirement not satisfied by a quarter -mile long access road. He stated a member of the Planning
and Zoning Board stated in voting against Feather Ridge: "I really feel like when it was stated
'directly from an arterial street' the intent was that you literally pull into the parking lot, you don't
go behind people's houses. I definitely feel that there is going to be an immense impact on these
neighbors." He stated the City must enforce the 300 foot minimum distance from Feather Ridge to
the homeowners, which was established as a minimum. He stated less than that was unacceptable.
He stated the Woodland Park neighborhood was not moving, so Feather Ridge should to a location
better suited to it.
Jen McKee, 3209 Yellowstone Circle, stated she had some photos to show the Council.
Mayor Martinez asked if those were part of the original record from the first hearing or if they were
new evidence.
Ms. McKee stated the photos were introduced at the Planning and Zoning Board hearing. She stated
there was one picture that she just took. She stated she had three children and lived feet away from
the drive. She stated the codes and regulations were in place to protect the residents and that
oversights and modifications had been placed directly over those codes and regulations. She stated
the photos showed where 200+ cars would be traveling right past her children. She expressed
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concerns for the safety of her children. She stated one photo showed a man on yesterday's tour who
had given the impression that he was supporting Feather Ridge. She stated she was surprised to
learn that he was a neutral party. She stated the families right next to the project would be affected
the most and should be clearly and truly heard. She stated the developer appeared to be "friendly"
but that codes and modifications should not be changed based on the character of a person. He
asked the Council to consider "peace, safety and harmony" in its consideration of the project.
City Attorney Roy stated for the record that the three photos had been marked Exhibits 1, 2 and 3
Chris Baker, 3103 Zion Court, Woodland Park Homeowners' Association member, stated he had
been designated as a spokesperson to talk about the Feather Ridge PDP` and how it did not meet the
performance standards. He stated Feather Ridge did not meet the requirement for a 300-foot
minimum distance from the dwellings abutting the property and that it was about 220 feet away.
He stated Feather Ridge did not meet the requirement that states: "Access shall be only directly
from an arterial street." He quoted from the Planning and Zoning Board transcript relating to the
ordinance allowing a small scale reception center in the UE zone and stated the stated intent of the
P&Z Board relating to access was to "limit the impact on the neighborhood and to limit the
neighborhood it would fit into." He stated as a condition of approving the ordinance the Planning
and Zoning Board further modified the access performance standards submitted to them to give more
protection to neighborhoods. He stated the Board added the requirement of "directly" and clearly
stated the Feather Ridge PDP did not meet this requirement. He stated the term "directly" was not
defined in the ordinance or in the Land Use Code and that the City referenced Black's Law and a
specific version of the Webster's Dictionary for definitions. He stated Black's Law stated: "In a
direct way, without anything intervening, not by secondary, but by direct means." He stated the
Webster's Dictionary further stated: "Without intervening space or time, without divergence from
the source, simultaneously, equally without any intervening agency or determining influence,
without any shared authority, without a moment's delay, at once, immediately." He stated Feather
Ridge was a quarter -mile away from the closest arterial, and that the developer proposed to build
a roadway on two parcels of land between Woodland Park and Hewlett-Packard. He stated the
quarter -mile separation over those intervening pieces of land determined whether "directly" was
achieved. He stated one scenario was that Feather Ridge owned the land, and that Feather Ridge
was asserting that it owned the north 30 foot strip of land closest to Woodland Park. He stated the
record showed that 3115 Yellowstone Circle, a private home in Woodland Park, had a deed granting
a half -interest in that strip of land. He stated last July, more than six months after the Feather Ridge
site was purchased, the developer did purchase this separate and independent home and its half -
interest in the road. He stated the record showed that this strip of land was separate and independent
from Feather Ridge. He stated this land was part of the RL residential zone. He stated the land
intervened between, was separate and was divergent from the source, and had shared authority for
multiple properties. He stated private ownership of this separate intervening land in the RL zone,
a zone in which reception centers were not an approved use, clearly negated compliance with having
"direct access" from an arterial. He stated the 30-foot strip of land was not wide enough for Feather
Ridge to build the proposed quarter -mile long road. He stated to get the 60-foot width required to
build the road would mean that the 30-foot strip of land abutting the H-P property would also need
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to be used, and that land was owned by the City. He stated there was another scenario relating to
use of the public right-of-way. He stated this land was also zoned RL. He stated at the Planning and
Zoning Board meeting the City staff asserted that this is a public right-of-way and that the City
would not relinquish control over it. He stated it had not been developed as a public road and was
a "simple, country -like gravel road" that provided access for one home. He stated it had been
planned, platted and dedicated as a public right-of-way and that at the Board meeting the City staff
confirmed that the City reserves the right that it could be developed into a public street and that it
would not be an arterial. He stated the road would be 1,215 feet long and that the City Code stated
dead-end roads and cul-de-sacs were not to exceed 660 feet. He stated the proposed road was
clearly nearly twice as long as it needed to be. He stated when it was used to connect Feather Ridge
to the arterial road it would clearly not comply to "without a moment's delay" or "at once" or
"immediately." He stated the City was an intervening agency with "determining influence" over the
public right-of-way from Ziegler Road to Feather Ridge. He stated this road was not an arterial, so
the use of any intervening public right-of-way owned by the City also negated "access directly from
an arterial." He stated regardless of whether or not Feather Ridge owned the separate land or the
City owned the land or any combination thereof it would require an independent piece of ground
which had an independent ownership, separation, distance, RL zoning, and an intervening authority
to span the distance from an arterial to the Feather Ridge property. He stated this negated "access
directly from an arterial" and prohibited the use. He stated this performance standard achieved its
stated intent to limit the impact on the neighborhood and limit the neighborhoods in which it would
fit. He asked the Council to follow the lead of the Planning and Zoning Board, which accepted the
ordinance but determined that Feather Ridge did not meet its fundamental requirements. He asked
that the Council uphold the decision of the Board.
Brad March, attorney representing the Woodland Park Family Association, stated the Association
was created to fight this project. He stated seven members of the association backed up to this
roadway that had been discussed at the south side of the Woodland Park Subdivision. He stated a
position statement had been filed and was part of the Council materials. He stated the Planning and
Zoning Board spent a significant amount of time looking at this project. He stated the Board's
deliberations were more than three hours. He stated this was the first small scale reception center
reviewed by the Board since the ordinance allowing this use in the UE zone was adopted. He stated
the Board spent a lot of time looking at the performance standards and that two changes were made
to the staff recommendations regarding the permitted uses in the UE zone. He stated the first change
was to downsize the size of a center that could be put in from 10,000 to 7,500 square feet, and that
the other change was the language that originally read "vehicular access to the reception center shall
be only from an arterial street" to add the word "directly" before the words "an arterial street." He
stated the staff made recommendations, the Board added the word "directly" and the Council then
reviewed the ordinance twice before adoption. He stated three members of the Planning and Zoning
Board felt very strongly about the intent of the word "directly" and believed that it was not intended
that this type of use would go through a residential neighborhood. He stated this was how "directly"
needed to be defined. He stated the Deputy City Attorney advised the Planning and Zoning Board
that the legislative intent was to be determined by the Board because of the recent adoption of the
ordinance relating to small scale reception centers in the UE zone. He stated the Boardmember
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Carpenter initially indicated that she was going to vote in favor of this proposal and that after the
discussion about issues involving the word "directly" she changed her vote. He stated she indicated
that this was not the intent at the time the ordinance was adopted. He stated the Council also needed
to take into consideration the fact that this was not in a commercial zone. He stated the record (page
123) indicated that the roadway was zoned in the RL zone. He stated the road was not located in
a commercial zone. He stated the road left the property and was entirely in the RL zone. He stated
it was intended to be in the RL zone and was not in the UE zone which allowed this use. He stated
the Planning and Zoning Board did properly interpret the ordinance. He urged the Council to uphold
the ruling of the Board.
Janet Zuniga, 4026 Mesa Verde Street, stated the project would be 80 feet too close to her house and
therefore did not meet the standards.
Mayor Martinez stated each side would have 10 minutes for rebuttal.
Mr. Martell stated the south half of the road was on the H-P property, which was zoned HC -
Harmony Corridor. He stated the vote at the Planning and Zoning Board was 3-3, which meant that
three members of the Board did believe that this project had direct access to Ziegler Road. He asked
that the Council decide the matter since the Board's vote was 3-3.
Ms. Ripley stated the applicant was doing many things to ensure that alcohol abuse would not be
a problem adjacent to the neighborhood. She stated the applicant had a policy with the following
components: prior to leasing the facility for a private party or event, the client would have to agree
to remind their guests to be responsible about alcohol use and ask their guests to have a designated
driver; standard practice at Feather Ridge would be to not serve someone who appeared to be drunk;
alcohol would only be served by licensed bartenders and caterers; alcohol would only be served for
a maximum of four hours; alcohol service would stop one hour before the end of any event; and if
high school or college students were renting the facility for an event, alcohol would not be allowed
at all. She stated her client would be happy to consider other suggestions on this issue. She
reminded the Council that if this small scale reception center was not allowed to be built on this site,
there would be other uses that would be built. Other allowed uses in the UE zone would include 30
homes on 15 acres, a school, a church, or a school and church combination. She stated this driveway
would be the way to access the property for any of those uses. She stated her estimation of an
average of 65-foot distance was accurate and that this would be a "significant" distance. She stated
people lived that close to arterial streets all over the City. She stated this was the only way to access
the 15 acres.
Jerry Roselle, 3314 Grand Canyon Court, stated he was accompanied by Bob Shields, who resided
at 3309 Grand Canyon Court, and that his property and Mr. Schields' property bordered the entire
northern line of the Feather Ridge project. He stated he, Mr. Shields and other neighbors strongly
supported the Feather Ridge project. He asked that the Council approve the project. He stated the
opponents had expressed "fears about the future" but that there were many neighbors who had
"hope for a healthy development" at this location. He stated the opponents had chosen to focus on
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negatives of the project. He asked that the Council focus on the positive aspects of the project. He
stated the opponents had tried to convince the Council that this was a "party venue" but that it was
more a "place to celebrate events of life." He stated the opponents had "overstated their case" about
alcohol abuse. He stated it was an overstatement to raise alcohol as an issue in this case when
drinking at downtown bars rather than at weddings was more of a problem. He stated the opponents
also based their fears on some predictions for the future. He stated the Council should look at the
quality of the development and the developer's work with all of the neighbors to come up with
something "quite beautiful" for the site. He stated many other types of developments would not be
as "beautiful." He stated he looked forward to this development because the work that had already
been done was quality work. He stated he had five acres and that he was not worried about property
values because he believed that this would increase property values because the project would
increase the "beauty" of the place. He stated the proposed architecture was in keeping with the
historic nature of the area. He stated this would not be a "place for beer swilling tailgaters" but
would be a place that would host weddings, family reunions, and celebrations. He stated this was
a "great project," that these were "tremendous developers" that had followed all of the rules and had
dealt with all of the negatives presented. He strongly urged the Council to support this project.
Mayor Martinez stated the opponents would have 10 minutes for rebuttal.
Mr. March stated Mr. Roselle's home was about 1,000 feet away from this center and that there
would not be the impact on his home that there would be for the residents with homes backing to
the roadway. He stated according to the record (page 11) this 7,500 square foot new facility would
allow 450 people. He stated the existing facility would accommodate 70 people and could be raised
to as many as 120 people (according to page 13). He stated the combined number would be 570
people. He stated Boardmember Craig noted that if there were four people in each car that there
would be 130 cars. He stated this much traffic at an event that would let out suddenly would have
a great deal of impact at 11:00 p.m. on weekends and 10:00 p.m. on weekdays. He stated there
would be a 20-foot wide road and that the Fire Authority was requiring a 30-foot wide road. He
stated backyards were a "sanctuary" and that this project would impact the residents using those
backyards. He stated this facility would have parking for 104 cars (page 11 of the record) when
completed and another 25 cars within the driveway (page 13). He stated there would be delivery
trucks. He stated a residential subdivision would not create the concentrated traffic that would be
generated from this project at times during which people were trying to use their backyards and late
at night. He suggested that on the plat for the Preston -Kelly 2nd Filing Subdivision (H-P) the south
30 feet was a public right-of-way. He stated there were questions about the north 30 feet, and that
the south 30 feet would be where the road was located. He stated the plat would suggest that the 30
feet in question was outside of the property. He stated the southerly easement was not part of the
H-P and was zoned RL. He stated this project would have substantial impact on the neighborhood
and that this was not the intent of the standards. He stated the issue was "what was the intent" of
the Planning and Zoning Board in adopting the ordinance. He stated the intent of the Board was that
"directly" did not mean a quarter -mile long driveway (a public street) to access an arterial. He asked
that the Council consider the needs of the neighbors.
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February 1, 2005
Mr. Herlihy stated he a 15 mph speed limit sign would not be observed on a roadway that was not
supervised by law enforcement. He stated service of alcohol by licensed bartenders would be no
different that service at any bar. He stated the success of the business would depend on volume
business. He stated it was not appropriate to introduce alcohol service into a residential
neighborhood.
Ms. Zuniga stated this project was not the right fit for this area and was too close to her home.
(Secretary's Note: The Council took a brief recess at this point.)
Mayor Martinez noted that a map was brought forward and asked if there were any objections from
the appellants to the map being submitted as an Exhibit. City Attorney Roy stated for the record that
Mr. Martell indicated that there was no objection. He stated the map would be marked as Exhibit
4.
Mayor Martinez asked how the roadway was zoned: HC, RL, or UE. Gloss stated it was his
understanding that the H-P portion (the southerly 30 feet) was zoned HC.
Councilmember Roy requested the opportunity to question three individuals separately. He
requested that two of those individuals be asked to leave the room while he asked the third a
question.
Mayor Martinez requested the opinion of the City Attorney regarding the sequestering of those
individuals. City Attorney Roy stated a ruling on this matter was up to the Mayor subject to being
overridden by a majority of the Council. He suggested that each of the individuals to be sequestered
be asked if they had any objection to this process.
Councilmember Roy stated the individuals in question were Deputy City Attorney Paul Eckman,
Director of Current Planning Cameron Gloss, and attorney James Martell.
Mayor Martinez asked for some indication about the question to be asked.
Councilmember Roy stated he would like to ask a question about part of the proceedings relating
to the roadway.
Mayor Martinez asked the three individuals if they had any objections. City Attorney Roy stated
for the record that each of the three individuals indicated that there were no objections.
Councilmember Weitkunat stated this was an inappropriate request and that all statements should
be "open."
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February 1, 2005
Councilmember Roy stated from watching the video and reading the material that there was an
"ability to help define what the road might actually be in the presence of others" and that he would
like to hear individual statements regarding that same road because this was a "critical piece of
evidence."
Councilmember Weitkunat asked if the statements made previously were part of the record and if
that was the basis for this discussion.
Councilmember Roy stated there were a "fair number of interpretations."
Mayor Martinez stated what was on the record was "the record." City Attorney Roy stated that was
true. He stated the Code allowed the record to be supplemented by new evidence in response to
questions from Councilmembers. He stated if Councilmember Roy believed that there was new
evidence to be gained, even in the form of "opinion evidence" from the three individuals that it
would be permitted as new evidence. He stated the question was whether the Council felt that it
would be helpful for the individuals to be sequestered so that the answer of each would not be
influenced by the answers of the others.
Councilmember Kastein stated he did not think that this was reasonable. He stated this was a public
meeting and that he did not think that people should be sequestered now. He stated this should be
a public discussion of all of the facts for all to hear. He stated this would be a bad precedent.
Councilmember Hamrick stated he would support Councilmember Roy's request. He stated this
would continue to be a public meeting even if some individuals were out of the room.
Councilmember Bertschy stated he would support the idea because there were no objections raised
by the three individuals.
Councilmember Tharp stated she would support the idea if it would help Councilmember Roy make
a decision more easily.
Mayor Martinez stated he did not necessarily agree but that there appeared to be a majority who
supported Councilmember Roy's request. He stated the "truth" was determined based on "the
record." He asked who Councilmember Roy would like to question first.
Councilmember Roy stated he would like to talk to Mr. Martell first.
Mayor Martinez asked Mr. Gloss and Mr. Eckman to leave the room.
("Secretary's Note: Mr. Gloss and Mr. Eckman left the room at this point.)
Councilmember Roy noted that much of the discussion had to do with whether or not the road
leading to the property was a private drive or private street or had public access. He asked Mr.
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February 1, 2005
Martell to characterize whether this was a private drive or street or a public street. He noted that
there were 3-4 options according to what he had read.
Mr. Martell stated he believed that the property itself was owned by his clients Julie Baker and her
husband and Ms. Meyer. He stated there was also a public right-of-way on that land. He stated he
believed that the public had the right to drive on his clients' property. He stated this was similar to
the easements on anyone's property for sewer lines, electric line, cable TV lines. He noted that you
may own the real estate but that the sewer company had the right to come in and dig up your
property and put in a sewer line because it had an easement. He stated in this case the public had
a right to drive on that road.
Councilmember Roy asked if it was a private drive, private street or public street.
Mr. Martell stated this was a different issue. He stated this came up at the Planning and Zoning
Board meeting and that it seemed to him that this issue was one of how the City wants that to be
improved. He stated the City had different standards for whether they considered it to be a private
drive, private street, etc.
Councilmember Roy asked Mr. Martell to characterize the roadway given those three choices.
Mr. Martell stated he would characterize it as a private driveway within the context of the City's
extent of the improvement. He stated it was clearly a public right-of-way and that the public would
have the right to drive on it.
Councilmember Roy asked what Mr. Martell meant by "within the context of."
Mr. Martell stated this was within the context of the engineering standards i.e. thickness of asphalt,
etc. He stated this was different conceptually than a driveway going from a street to someone's
garage. He stated the public could not drive on someone's driveway but could drive on this.
Councilmember Roy asked if Mr. Martell was choosing to call this a private drive.
Mr. Martell stated it was a private drive but not a private drive that would be the same as someone's
driveway. He stated he thought of it as a private drive in terms of the City's street standards and
what would be required in terms of asphalt, gravel, etc. and not in terms of who could drive on it.
Councilmember Roy asked if this was because of the public access and whether Mr. Martell viewed
this as a "private drive with public access."
Mr. Martell replied in the affirmative.
City Attorney Roy asked if Mr. Martell was talking about the whole strip or the south part of it.
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February 1, 2005
Mr. Martell stated he was talking about the north half, which would be the half that his clients
owned.
City Attorney Roy asked if Mr. Martell believed that the north half was dedicated to the public.
Mr. Martell stated there was a public right-of-way on that north half. He stated it was reserved in
the deed and conveyed to the County.
City Attorney Roy asked to whom it was reserved.
Mr. Martell stated it was reserved to the Matneys and their grantee.
Councilmember Weitkunat stated the three options presented had distinct definitions within the
Code: private drive, private street and public street. She stated she did not know if Mr. Martell
answered in line with the definitions within the Code.
Mr. Martell stated when he thought about a private street that was public he was thinking of a
subdivision that had public streets that people could drive on i.e. they had asphalt, curb and gutter,
sidewalk, etc.
Councilmember Roy stated he did not believe that the question was ever answered in a way that he
found to be very clear. He stated his intent was to ask the three people involved to answer one at
a time to clarify his understanding.
Mayor Martinez asked that Mr. Gloss be asked to return to the meeting.
Councilmember Kastein asked if it would be fair to have a definition of those three options available
so that people could look at that in giving their definition for this roadway.
Councilmember Roy stated was not part of the original record but that could be introduced by the
Council asking a question.
Mayor Martinez stated the process should not be changed in "midstream."
Councilmember Roy stated the definition of the roadway to the Feather Ridge property was unclear
in the record. He stated there were three options: private drive, private street or public street. He
asked Mr. Gloss which of those options defined what this roadway was and the role of the public
access in that. Gloss stated it was not within 100% dedicated public right-of-way and was therefore
not a public street. He stated it was a private drive because in order to be a private street it would
have to meet City standards for street design 100%. He stated the width was narrower than standard
because of the expressed intent to keep traffic speeds down. He stated it was a "private drive."
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February 1, 2005
Councilmember Roy asked how that would work with public access. Gloss stated there could still
be easements over a private drive and that an easement in this case would give the public the ability
to use that roadway to access the site. He stated the easement in this case gave an access easement
i.e. the ability of passage through a property. He stated this was different than a public right-of-way,
which was under public ownership.
Mayor Martinez requested that Mr. Eckman be called to return to the meeting.
Councilmember Roy stated during the hearing one of the things that seemed unclear to him was what
this roadway to the Feather Ridge property would be called: a public street, private drive, or private
street. He asked Mr. Eckman how he would characterize this roadway. Deputy City Attorney
Eckman stated it was characterized as a "private drive" and that the south 30 feet was a "public right-
of-way." He stated it could be transformed into a "public street" if necessary at some point i.e. if
the property ever developed as residential property.
Councilmember Roy thanked the Council for allowing his questions to be asked in this manner.
Councilmember Weitkunat stated the question relating to "direct access" was whether on this
particular piece of property (not considering the PDP) whether the same rule would apply for access.
She stated her assumption was that every piece of property needed access under the Code. Gloss
replied in the affirmative.
Councilmember Weitkunat asked for confirmation that this was the route to this property. Gloss
replied in the affirmative.
Councilmember Weitkunat asked if by definition this was access. Gloss replied in the affirmative
Councilmember Weitkunat asked if any other use in the UE zone would have the same applicable
criteria i.e. access and direct access. She asked if a church would be required to have direct access
off an arterial. Gloss replied in the negative. He stated the specific standard was applied to small
scale event centers and there was no specific performance standard that would apply to a church or
some other type of use. He stated there might be a different access design for another use. He stated
access to a property would be looked at on a case -by -case basis.
Councilmember Weitkunat asked if given the physical constraints whether there would be access
to this site from any other area. Gloss stated there was not practical access that the staff would
support relative to the size and operating characteristics of this particular use. He stated a more
intensive use requiring better emergency access might mean that another access point would have
to be built.
Councilmember Weitkunat asked if it was conceivable that such access would be through the
Woodland Park neighborhood. Gloss stated it would be up to the property owner to determine a
route that would work and that the property owner would have to obtain public right-of-way.
February 1, 2005
Councilmember Weitkunat stated the northernmost property came off the Woodland Park
neighborhood and asked if access could be obtained through one of those streets. Gloss stated there
was no public right-of-way dedicated at this time that would connect to the subject property. He
stated a more intensive use might require a second point of access (right-of-way) that would have
to be negotiated with area property owners.
Councilmember Weitkunat stated the issue was points of access and direct access. She asked if
direct access was straight and not through a neighborhood. Gloss stated staff was involved in the
crafting of the performance standards and that the intent was that this particular property would be
compliant to the standard of providing direct access with the drive arrangement as proposed. He
stated the standards were applied to this particular property and that from the staff perspective this
access met the standard. He presented visual information regarding possible sites that could
accommodate small scale reception centers. He stated from the staffs perspective this site met the
standard.
Councilmember Kastein asked if that fact came up in the Planning and Zoning Board meeting i.e.
that staff used this as a "template" for how to define the standard. Gloss stated he made a similar
comment to the Board.
Councilmember Kastein asked about the 300-Foot buffer requirement between the use and the
homes. He stated the project was clearly in violation of that standard. Gloss stated it was not if the
event center was to be placed in the center of the site. He stated staff was not aware at that time of
the applicant's intention to use the historic farmhouse for the event center.
Councilmember Kastein asked why trees were planted and if there was any kind of agreement made
that if those trees were planted that the modification of standard would be accepted. Gloss stated
there were several discussions during the course of neighborhood meetings. He stated his
understanding was that the applicant planted those trees to help mitigate the impacts and "soften the
relationship" with existing residential neighborhoods to the west. He stated the applicant planted
those trees prior to the PDP application on its own.
Councilmember Hamrick asked how many buildings could be built in this proposal. He asked if the
applicant could come back to ask for additional capacity at this site. Gloss stated the applicant
would have to come back through an amendment process and public hearing to make a major
amendment to the plan. He stated minor changes could be handled as a minor amendment and that
those would be limited in scope.
Councilmember Hamrick asked if traffic studies factored in the Lifestyle Center. Gloss stated the
Lifestyle Center impacts were taken into consideration. Matt Delich, 2272 Glen Haven Drive,
Loveland, stated he prepared the traffic study. He stated the Lifestyle Center traffic was included
as background traffic in the traffic study.
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February 1, 2005
Councilmember Hamrick asked the performance standards for this land use addressed the maximum
number of people that could attend this activity or business. Gloss stated the program submitted by
the applicant set the hours of operation and an occupancy limit as set by the fire code. He stated
those numbers were used to calculate the parking that would be provided.
Councilmember Hamrick asked if the capacity was the 570 people previously referenced. Gloss
stated sounded correct. He stated the large facility would hold 416 people.
Councilmember Hamrick asked if parking would be allowed along the private drive. Gloss replied
in the negative.
Councilmember Hamrick asked how that parking would be prevented. Gloss stated the parking area
was designed to accommodate the use in its entirety. He stated there was a main parking field and
a smaller area west of the farmhouse. He stated staff did not anticipate that this would be an issue.
He stated question had not been asked before.
Councilmember Hamrick asked how much idle time there would be for cars leaving at the same
time. He expressed a concern with cars lining up along that private drive and idling behind those
homes. Ward Stanford, Traffic Engineering, stated the traffic study showed that roughly 600 cars
per hour would pass on that roadway at that time and that this averaged 10 cars per minute. He
stated the cars coming from the site would not necessarily leave at the same time. He stated the
"worst case" was perhaps a 30 second wait on a weekend to get out onto the main street. He stated
on average the wait would probably be considerably less.
Councilmember Hamrick asked how a road could be before it became an issue as far as a "direct"
route. He asked if there was any criteria besides no obstruction. Gloss stated when the ordinance
was crafted that there was no dimension set.
Councilmember Hamrick stated information in the Planning and Zoning Board minutes related to
discussion of the impact of "direct' access right behind houses.
Councilmember Tharp asked if the client owned both segments of the roadway. Gloss stated half
of the roadway was owned by the applicant and that the other half was dedicated public right-of-way
i.e. part was private ownership and part was public ownership.
Councilmember Tharp asked if the roadway would be built on the portion that was public right-of-
way. Gloss replied in the affirmative and clarified that it would be largely on the public right-of-
way. He stated if the roadway was 30 feet to meet PFA standards that it would slightly encroach
onto the area owned privately.
Councilmember Tharp stated she was looking at justifying the "direct access" as being a continuous
piece of the property where the event center was to be located i.e. that the property owner owned
all of that land and that this could therefore be called "direct access." She stated she needed
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February 1, 2005
additional clarification since they did not own all of that land. Gloss stated staff made the case that
this could be argued both ways. He stated from the staff perspective the question was whether this
was "direct." He stated whether it was public or private property that this was still the question.
Councilmember Tharp stated the confusion was when the public right-of-way was compared to a
cable line going across the property. Gloss stated would be an easement and that the right-of-way
was different than that.
Councilmember Kastein asked if the fact that the applicant was using the public right-of-way and
not its own property was a "concession" to moving the road away from the homes. Gloss stated
from the staff s perspective it was a positive thing to move the roadway away from the houses.
Councilmember Kastein asked if Councilmember Tharp's point was that the pieces were completely
parallel and that it would be "direct access" if the route that was more adverse to the neighborhood
was used.
Councilmember Tharp stated she wanted to understand the ownership of the two segments.
Councilmember Kastein asked if Councilmember Tharp would be more comfortable with the
definition of direct if the developer used the route that was totally on the property they owned.
Councilmember Tharp stated was not the issue she was concerned about.
Councilmember Kastein stated he did not understand the question.
Councilmember Bertschy requested clarification regarding the standard on the distance. Gloss stated
no prescribed distance was set to meet the "direct connection standard." He stated in this case the
1,200 feet was in compliance because there was no numeric standard.
Councilmember Roy asked where conversations about economic impacts would fit into the
discussions held with the Planning and Zoning Board on these types of projects. CityAttorney Roy
stated there were criteria that were supposed to mitigate impacts and that those criteria were in the
Code. He stated the effect on property values was not a factor in determining whether a Project
Development Plan was acceptable or not.
Councilmember Roy stated on page 3 one of the Boardmembers said that the secondary access was
financially impossible, and that on page 116 there was discussion about the sewer connection being
more than double the cost of an onsite system. He asked if comments like that on the record were
appropriate. City Attorney Roy stated it was up to the Council to decide if such comments were
relevant and that in his opinion those comments were not relevant. He stated the requirements that
the Council believed were necessary needed to be imposed in order to satisfy the criteria. He stated
the question of whether or not those proved to be economically feasible for the applicant was a
consideration for the applicant. He stated if the requirements became so burdensome that it was
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February 1, 2005
impossible to develop the property then there was a "takings" concern. He stated he did not believe
that was an issue in this case.
Councilmember Roy asked about the septic tank system and what was to occur. Roger Buffington,
Water Utilities Department, stated there were two sewers in the area that could possibly be used for
connection. He stated there was one in the Woodland Park Estates and that there were topographical
constraints, wetlands and a wooded area on property owned by the Woodland Estates to be crossed.
He stated it was not feasible or practical to make that connection. He stated the sewer line in Ziegler
Road was the other possibility. He stated it was his understanding that was the applicant's long
range intent. He stated the applicant would like to start operating out of the existing house and delay
connection to the sewer until the event center was built. He stated the applicant would therefore
initially operate on a septic system. He stated once the event center was built that there would be
a pumping facility and wastewater from both the existing house and the events center would be
pumped to the sewer line.
Councilmember Roy asked if the plans would be to create a septic system that could have a capacity
for 120 people. Buffington stated was his understanding.
Councilmember Roy asked how difficult it would be to install such a system. Buffington stated the
County's Department of Environmental Health indicated that such a facility with intermittent use
and light water use per occupant would be a common design.
Councilmember Roy asked how long it would take to construct such a system. Buffington stated
he did not have that information.
Councilmember Bertschy asked for clarification that the matter would be remanded if a
determination was made that a fair hearing was not held. City Attorney Roy replied in the
affirmative.
Councilmember Bertschy asked if information in the written material should be considered if there
was no testimony regarding that information. City Attorney Roy stated the Council should base its
decision on the record and any information presented at the hearing.
Councilmember Kastein asked if the City Attorney was indicating that there was no false or grossly
misleading information presented. City Attorney Roy stated he was indicating that he did not recall
any statements on those points at the hearing.
Councilmember Kastein stated he would like to make a motion that there was a fair hearing, but that
the Board did fail to properly interpret the Land Use Code with regard to the word "direct."
City Attorney Roy recommended separating that into two motions.
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February 1, 2005
Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to determine that
the Board did conduct a fair hearing.
Councilmember Kastein stated he believed that some wrong information was presented to the Board.
He stated he reviewed the record to determine if that information was crucial to the decision making
process of the Planning and Zoning Board, and that he did not believe that was the case and that
consequently it was a fair hearing.
Councilmember Bertschy agreed with Councilmember Kastein's statement.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED
Councilmember Kastein made a motion, seconded by Councilmember Bertschy, to find that the
Planning and Zoning Board failed to properly interpret and apply the provisions in the Land Use
Code (relating to the definition of "direct") because vehicular access to the reception center is
obtained directly from Ziegler Road, and to remand the matter back to the Planning and Zoning
Board to discuss the modification of standards with regard to the 300 foot separation from the event
center and the neighborhood properties.
Mayor Martinez stated it was up to the Council to decide if the access was "direct."
Councilmember Kastein stated his intent was to find that the Board failed to properly interpret the
definition of "direct."
Mayor Martinez asked if the intent was to send it back to the Board.
Councilmember Kastein stated his intent was to send it back to the Board with the definition that
had been presented by staff so that the Board would have an opportunity to reevaluate its decision
based on Council's finding that direct access did exist. He stated he would like the Board to focus
on the issue of the modification of the 300-foot distance standard. City Attorney Roy suggested that
the question be divided because the Code provided that the Council could remand even if there was
a fair hearing in order for the Board to receive and consider additional information with regard to
any issue raised on the appeal. He suggested that the issue not be mixed with the issue of a failure
to properly interpret and apply the direct access definition. He suggested that there first be a
determination by the Council as to whether the criterion had in fact been met and then that Council
explore some other issues raised on the appeal before a final decision was made about the
development.
Councilmember Kastein stated he was indicating the reasons for remanding the matter to the Board.
He stated the Council needed to first decide the issue relating to the definition of "direct."
February 1, 2005
Mayor Martinez requested a restatement of the motion.
Councilmember Kastein made a motion to remand the matter to the Planning and Zoning Board and
overturn the decision of the Board. City Attorney Roy suggested that Council first make a factual
determination regarding whether the criterion of direct access had been met. He suggested a motion
to find that the Board failed to properly interpret and apply the criterion about "direct access." He
stated if the majority of the Council agreed with that finding that the Council could then decide
whether to overturn the Board's decision and approve the development or could determine that yet
another issue needed to be more fully explored by the Board. He stated if this met the intent of the
motion maker that the motion would be to find that the Board failed to properly interpret and apply
the criterion pertaining to direct access, and to find instead that the direct access criterion had been
met.
Councilmember Kastein stated was his intent.
Councilmember Kastein made a motion, seconded by Councilmember Weitkunat, to find that the
Board failed to properly interpret and apply the criterion pertaining to direct access and to find that
the direct access criterion had been met.
Councilmember Roy stated he would not support the motion. He stated there was one -fifth mile
from the gate post at Ziegler Road with all of the attendant issues of public access. He stated calling
this "direct access" would be an error.
Councilmember Tharp stated if the developer owned the property all the way to Ziegler Road that
Ziegler Road would be the point of direct access to the property. She stated this seemed to meet the
criteria.
Councilmember Hamrick disagreed and stated the definition of "direct" meant "without
interruption." He stated in the Board's interpretion of direct that it looked at the neighborhood as
an "interruption to that direct access" and that the Board felt that this meant "very direct without any
obstacles in that path." He stated some of the testimony indicated that there were several
impediments to that direct access. He stated in his view and apparently in the view of the Board that
the neighborhood that close to that road served as an obstruction to direct access.
Councilmember Tharp stated the developer owned the property, that it was outside of the
neighborhood and that the neighborhood's property lines did not encroach upon the road.
Councilmember Hamrick stated the property owners did not have the right to do anything they
wanted with the property because of various codes. He stated the issue was the impact on existing
neighborhoods and that allowing that road to go through would permit 150 to 200 cars to go by there
anywhere from 9 o'clock to 11 o'clock at night.
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February 1, 2005
Councilmember Weitkunat stated thel Council needed to look at the larger picture. She stated many
of the properties defined as Urban Estates would have long access drives. She stated going behind
people's houses did not mean indirect access. She stated "direct" meant a straight line that would
feed onto the arterial road. She noted that the Board was split on this interpretation and that the
Land Use Code might need to be clarified. She stated for all practical purposes she would interpret
"direct" as not going through the neighborhood.
Councilmember Tharp stated the question should be sending the matter back to the Board and that
the issue for Council to decide was whether the access was "direct" or "indirect."
Mayor Martinez stated the issue was not whether the roadway would have asphalt or would be dirt.
He stated he believed that the access road was direct.
Councilmember Bertschy stated there were two persuasive arguments: (1) that the right-of-way was
moved onto the public right-of-way and that the public right-of-way had been deeded for an access
road, and (2) that staff, when developing the standards for the small event center, determined that
"direct" did fit this particular use.
Councilmember Hamrick stated this was a continuation of the ongoing discussion relating to
"development trade-offs versus neighborhood impact." He stated the majority of Council appeared
to support "profit over people, development over neighborhoods."
Mayor Martinez questioned whether Councilmember Hamrick's comments were motivated by the
upcoming election.
Councilmember Hamrick stated he was certain that the neighborhood knew that he was "sincere"
in his comments.
Mayor Martinez stated Councilmember Hamrick's comments did not focus on the issue that was
before Council.
Councilmember Kastein stated the decision regarding whether this road was "direct" was not a
growth/no growth issue. He stated he believed that this definition of "direct" was the "right one."
Councilmember Roy stated it was necessary to look at the "whole issue." He stated in this case
buildings would be closer to the neighborhood than the 300-foot buffer would allow and that the
Planning and Zoning Board said quite clearly that they looked at those standards as a minimum, not
as something to modify.
Councilmember Kastein stated Council comments should be focusing on the definition of "direct."
Councilmember Roy stated there had been some "broad discussion" on the issues. He stated the 300
foot minimum setback had been ignored for this particular project. He stated there were also issues
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February 1, 2005
relating to "direct" access, the cost for a sewer line, building a secondary access road for safety
"through the back yards of these neighbors" etc. He stated there were health and safety concerns
and that the one -fifth of a mile road did not meet standards.
Mayor Martinez stated the issue was defining what "direct" meant.
Councilmember Kastein asked for clarification that a vote on this item would not speak to
remanding the matter to the Board. City Attorney Roy stated the motion addressed the
determination on "direct access." He stated if the motion succeeded that the Council would have
other issues to decide with regard to approval of the development or remanding to the Board.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Kastein, Martinez, Tharp
and Weitkunat. Nays: Councilmembers Hamrick and Roy.
THE MOTION CARRIED
Councilmember Weitkunat made a motion, seconded by Councilmember Tharp, to overturn the
decision of the Planning and Zoning Board and to grant approval of the Feather Ridge Project
Development Plan, including a modification for the standard 3.8.2.7 (the minimum setback for
existing residences).
City Attorney Roy requested clarification regarding whether there was another modification of
standards involved.
Cameron Gloss, Director of Current Planning, stated another modification was withdrawn by the
applicant.
Councilmember Bertschy stated he wanted to remand it back to the Board based on the modification
of the distance. He stated he believed that this was "overlooked" in the Board's discussions on the
decision and was a critical piece of the proposal. He stated he would oppose the motion.
Councilmember Weitkunat stated the modification for that standard was the first motion made by
the Board and that the vote was 3-3. She stated was part of the reason for including it in the motion.
She stated the Board did have a discussion regarding the setback and that there was a 3-3 deadlock
on the vote. She stated the Council should address that in this motion because it was part of the
Board's discussion and had a split vote.
Mayor Martinez stated he agreed with Councilmember Weitkuant. He noted that the Board could
deadline on the issue again and that was why the Council needed to make a final decision on the
matter.
Councilmember Hamrick stated he would not support the motion and that the Council should honor
the 300 foot standard. He stated he would not support the motion because of neighborhood impacts.
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Councilmember Kastein stated he would like to remand the matter to the Board. He stated this issue
was not the subject of this appeal. He stated remanding to the Board would give them a chance to
reconsider the definition of "direct" so that the Board could look at the modification of standards
again. He stated if the Board deadlocked that there could be another appeal to the Council. He
stated a second appeal would probably relate to the definition. He stated he would prefer to remand
the matter because the modification of standards was not fully discussed at the appeal hearing. City
Attorney Roy stated for the record that he believed that the denial of the modification of standards
was one of the grounds for the appeal even though this issue was not the focal point of the
presentations at the appeal hearing.
Councilmember Kastein stated it related to whether a fair hearing was conducted or not rather than
to the interpretation of the Land Use Code. Paul Eckman, Deputy City Attorney, stated the issue
was placed in the notice of appeal under the fair hearing argument. City Attorney Roy stated the
Code provided that the appeal was to be decided on the basis of the record and the notice of appeal.
He stated the Council had decided the question of modification of standards in terms of the way the
notice of appeal was framed and had decided that the Board did not exceed its jurisdiction in
denying that. He stated it was up to the Council as to whether to determine that modification of
standards and to agree or disagree with the Board's position or whether to take a more technical
approach in saying that the appeal was not made under that ground and to remand to the Board for
another determination.
Mayor Martinez stated he would like to see the Council made a final decision on the matter. He
questioned remanding to the Board when a second appeal was likely on the same issue.
Councilmember Roy stated a number ofCouncilmembers were interested in remanding to the Board.
Mayor Martinez stated he believed that it was the expectation of the opponents and the appellants
that the Council would make the decision rather than remanding to the Board.
Councilmember Tharp stated the Council should make a decision on the matter.
Councilmember Weitkunat stated she had included the modification of the setback standard in her
motion because a modification would not be approved if this was to be a new building. She stated
the project wanted to include a historical structure and that there needed to be a modification to
allow that. She stated the modification would be a "public good" because it would allow the historic
structure to be integrated into the development. She stated half of the Board had said that this would
be a public good and would meet the "equal to and better than" provision in the Land Use Code.
Councilmember Hamrick requested that the motion be read. City Clerk Krajicek stated
Councilmember Weidmat moved that the Council overturn the decision ofthe Planning and Zoning
Board and grant approval of the project including modification of the setback standards.
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February 1, 2005
Councilmember Hamrick asked if this was remanded back to the Board and the Board remained
deadlocked whether this would comeback to the Council again. City Attorney Roy stated the Board
would have to make a decision whether to approve the modification, reconsider the decision made,
and receive additional information on that issue. He stated if the Board vote was 3-3 that this would
mean that the Board had again not granted the modification and that this could be the subject of
another appeal to the Council.
Councilmember Roy stated he would not support the motion. He stated according to City rules that
parking would be inadequate, the setbacks were not to code, and the secondary access was being
overlooked. He stated a 3-3 tie was no less binding than a 7-0 vote. He favored spending more time
to ensure that the right decision was made. He stated for many reasons this should be remanded to
the Board.
The vote on the motion was as follows: Yeas: Councilmembers Martinez, Tharp and Weitkunat.
Nays: Councilmembers Bertschy, Hamrick, Kastein and Roy.
THE MOTION FAILED TO PASS
Councilmember Kastein made a motion, seconded by Councilmember Hamrick, to remand the
matter to the Planning and Zoning Board.
City Attorney Roy suggested incorporating into the motion the reason for the remand and the issues
the Council wanted the Board to look at.
Councilmember Kastein stated he would like the Board to understand the "new definition of direct"
and to "reexamine the modification of standards in the 300-foot setback requirement.
Councilmember Weitkunat asked if remanding the matter to the Board would open up the whole
PDP again. City Attorney Roy stated in his view it would not. He stated was the reason for his
suggestion that the motion clarify what the Board was supposed to look at. He stated it was his
understanding that the scope of the remand would be to receive and consider additional information
with regard to the request for modification of standards.
Councilmember Roy requested that the City Attorney read the definition of"direct." City Attorney
Roy stated the motion would mean that the criterion as written had been satisfied and that the term
was not being redefined. He stated a new definition would require consideration of a legislative
change.
Councilmember Tharp stated she believed that it was "counterproductive" to remand the matter to
the Board and noted that the Council had indicated its support for historic preservation.
Mayor Martinez agreed that remanding would be 'counterproductive." He stated he believed that
the expectation was that the Council would make this decision.
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February 1, 2005
Councilmember Kastein stated it was important to have the appeal correct. He stated the appeal was
not brought to Council on the grounds of the modification of the standards. He stated the Council
should not consider items that were not part of the appeal. He stated there would have been a lot
more discussion about historic buildings, mitigating circumstances, trees and the 300-foot buffer
standards. He stated he was not prepared to address this topic because it was not the subject of the
appeal.
Councilmember Weitkunat stated the amended notice of appeal cited two actions being appealed:
(1) a final decision in a 3-3 vote not to approve the Feather Ridge development plan, and (2) a 3-3
vote not to approve a variance to the performance standards for a small scale reception center to
permit use of an existing farmhouse that is less than 300 feet from a neighboring residence. She
stated the notice of appeal opened the door for this discussion.
Mayor Martinez agreed with Councilmember Weitkunat's statement that this was part of the appeal
even though it was not the focus of the discussion.
Councilmember Bertschy stated this was adequately addressed either in the hearing or in the appeal.
Councilmember Hamrick asked if a vote to remand to the Board would give the Board the option
of interpreting "direct." City Attorney Roy replied in the negative.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein and
Roy. Nays: Councilmembers Martinez, Tharp, Weitkunat.
THE MOTION CARRIED
Mayor Martinez stated the matter had been remanded to the Planning and Zoning Board.
(Secretary's Note: City Manager Atteberry returned to the meeting at this point.)
Resolution 2005-008
Submitting to the Registered Electors of the City at the April 5, 2005 Regular
City Election the Question of Renewal of an Existing Quarter -Cent Sales and
Use Tax to Be Used to Fund the City's Street Maintenance Program, Adopted
The following is staff s memorandum on this item.
"FINANCIAL IMPACT
The renewal ofthe Street Maintenance Program sales and use tax would provide approximately $5.5
million peryearfor theprogram. Thisfunding source nowprovides only halfofthe current revenue
for the City's street maintenance program as the entire 114 cent is not currently dedicated to street
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February 1, 2005
maintenance. A portion of the Building Community Choices revenue from this quarter cent was
earmarked for other transportation capital projects. Renewal of the tax with all the revenue
dedicated to this purpose will lower the need for some of the one-time General Fund resources
currently committed to street maintenance.
EXECUTIVE SUMMARY
At the January 11 Study Session, Council directed staff to bring forward a Resolution placing the
Street Maintenance Program sales and use tax renewal on the April 2005 City Election ballot.
The Street Maintenance Program provides fundingfor the repair and renovation of the City's street
system. All 475 miles of city streets are covered by the program including arterials, collectors and
residential streets. Theprogram covers major maintenance andpreventative maintenance ofstreets
including repairs, renovations and reconstruction when necessary. Maintenance is also performed
on curbs, gutters, bridges, sidewalks, parkways, shoulders and medians.
BACKGROUND
Two Building Community Choices capital sales taxes are set to expire December 31, 2005. The
"Streets and Transportation Projects" package funded the Street Maintenance and Overlay
Program, the Annual Pedestrian Improvement Program, Phases 1 and 2 of the Mason
Transportation Corridor, and improvements to the North College Corridor. The "Community
Enhancements" package has funded a variety of other projects including road expansions,
recreation programs and land acquisition forfuture Cityprojects. While both taxes are set to expire
this year, Council has directed staff to seek renewal of the Street Maintenance Program at the April
election and defer the "Community Enhancements" renewal until the November 2005 election.
The Street Maintenance Program
The Street Maintenance Program providesfundingfor the repair and renovation of the City's street
system. All 475 miles ofcity streets are covered by the program including arterials, collectors and
residential streets. Theprogram covers major maintenance andpreventative maintenance ofstreets
including repairs, renovations and reconstruction when necessary. Maintenance is also performed
on curbs, gutters, bridges, sidewalks, parkways, shoulders and medians.
The program has been in existence since 1989 when it was funded through the Choices 95 Capital
Improvement Program. Prior to that time, the City's street maintenance efforts received minimal
funding and streets were in poor condition. With the funding of the Street Maintenance Program
and the renewal of the funding stream through the Building Community Choices program, the City
has been able to meet its goal of an average pavement condition rating of 75—a "Good" rating.
Accomplishments of the program have included:
• 263 miles ofstreets have been maintained since 1989;
The average pavement condition rating has been raised to 75;
• Aggressive rehabilitation of arterial streets has been undertaken;
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February 1, 2005
• The Hot -in -Place asphalt recycling process was introduced in 2000, increasing cost
effectiveness and minimizing inconvenience for citizens; and
• Preventive maintenance such as slurry seals and overlays have increased.
Program Funding
The Street Maintenance Program is currently funded from four sources. A substantial portion of
the program funding, $3.7 million (49%), is provided by the Building Community Choices Program.
In 2005, the General Fund will provide $1.6 million in on -going funds and $2.2 million in on -time
funding for the program. An additional $128, 000 from street cut fees was provided in 2004. These
fees are assessed to contractors and other builders who cut into City streets as part ofa construction
project. The overall budget of $7.5 million is considered to be a full funding level for the program.
If the Street Maintenance Program is renewed, $5.5 million of dedicated revenue, plus a projected
$2.3 million ofgeneral fund support in 2006 will provide a total of approximately $7.8 million per
year for street maintenance. Though specific fundingfigures would not be known until the 2006-07
budget is adopted, General Fund support for the program will still be required after the dedicated
revenue source is approved by voters.
On-goingfundingfor the Street Maintenance Program is a high priorityfor Transportation Services
for several reasons. It continues to be one of the City's most basic, core services with excellent past
performance. It is a cost effectiveprogram because maintaining average pavement condition rating
of 75 saves the City money. By providing preventative maintenance to streets, repairs can be made
when inexpensive processes can be used, rather than waiting until more expensive and disruptive
major maintenance or replacement is required. With limited alternative funding sources for this
maintenance, this program and its funding source are critical to the overall condition of the City's
street system.
A Dedicated Funding Source
By continuing this dedicated funding source, separate from the General Fund, the City can
accomplish several goals. First, by maintaining the program as a dedicated sales tax funded
program, funds cannot be diverted to other uses. This ensures that the program remains funded and
preventative maintenance will not be deferred.
A second benefit ofa dedicated sales tax is that 30 - 40%ofsales tax revenue is generated from non -
city residents that use our street system. By placing a portion of the burden for maintaining our
streets on visitors, workers who commute into Fort Collins and shoppers from neighboring
communities, the sales tax provides an equitable funding source.
Finally, by creating a dedicated funding source for street maintenance, the City can assure
compliance with capital asset accounting requirements set forth in GASB-34. This accounting
standard requires that the City estimate the value of all assets and their condition. With the
additional fundingfrom the dedicated quarter cent, the Citywill be able to maintain the value ofthe
assets.
February 1, 2005
Term of Tax
A date for the expiration of the tax must be added to the proposed ballot language. Council
discussed a variety of terms, including 8-10 years, 15 years, or 20 years. Since no agreement was
evident at the January 11 Study Session, Council asked that two options be presented at the
February 1 meeting, including a 10 year and a 20 year alternative. The length of the tax has been
left blank in the Resolution, and Council's motion should include the desired length.
Staff recommends a term of20 years. By using a 20 year term for the tax, it will provide a long-term
funding sourcefor theprogram, and will be set to expire in an odd -numbered year when a municipal
election will be held. A 20 year term would run from January 1, 2006 through December 31, 2025. "
City Manager Atteberry introduced the agenda item. He noted that there was a study session with
the Council several weeks ago on this matter. He stated this was a critical item because it would
enable the City to continue to deliver a primary critical service to the citizens of Fort Collins. He
stated staff was recommending approval of the Resolution.
Diane Jones, Deputy City Manager, stated this was the culmination of 18 months of work related
to crafting what would come next after the current Building Community Choices ended on
December 31, 2005. She stated in 1997 voters approved three quarter -cent packages. She stated
the natural areas package was extended by voters to 2030 and that the remaining quarter -cent
packages were up for renewal at the end of 2005. She stated Council direction was to seek voter
approval for the renewal of the street maintenance program at the April 2005 election and to delay
the community enhancements quarter -cent package for possible renewal in November 2005.
Ann Turnquist, City Manager's Office, stated a quarter cent of sales tax would generate about $5.5
million per year and that this would be a significant funding source for the continuation of the
pavement management program. She stated the street maintenance program was the major
preventive maintenance program and did not include street sweeping or snow plowing but did
include the construction and reconstruction of the full street system. She stated there were currently
four sources of funding for the program. She stated the Building Community Choices sales tax was
dedicated to this until December 31, 2005. She stated currently provided about 48% of the funding
for street maintenance. She stated the General Fund provided most of the rest of the funding for the
program. She stated if this was approved by the voters at the April election that it would be about
69% of the funding for the program. She stated this would be a continuation and redistribution of
the funds. She stated this had been a cost efficient program because good streets cost less to
maintain. She stated preventive maintenance would save money in the long run. She stated other
funding sources were very limited and that it was critical that this program be renewed. She stated
staff was recommending this as a dedicated funding source to guarantee continuation of the
preventive maintenance program. She stated visitors and shoppers would be helping to pay for
maintenance of the streets that they used. She outlined the ballot language for the measure for a
quarter cent sales tax that would generate funds for all of the costs of the street maintenance program
(planning, design, right-of-way, and maintenance). She stated the tax would not apply to grocery
food or prescription drugs. She stated the Council would need to set the term of the tax and fill in
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February I, 2005
a number in the Resolution. She stated staff was recommending a long term such as 20 years and
that it be an even number of years so that the expiration would be in the year of a municipal election.
Bruce Lockhart, 2500 East Harmony Road, spoke in opposition to the sales tax. He stated core
services such as this should not be funded through a sales tax. He stated the proposed 20 year time
frame was too long and that four to six years would be more reasonable. He questioned the need
for a dedicated tax for a core service.
Tim Johnson, 1337 Stonehenge Drive, spoke in support of the sales tax. He stated streets must be
maintained to save money in the long run. He stated he favored a dedicated tax that would continue
for 10-12 years. He stated the longer the term of the tax the better. He stated the Transportation
Board had endeavored to make the pavement management fund whole. He stated there were overall
funding needs in the range of S7+ million per year. He asked that Council pass the Resolution.
David May, Chamber of Commerce Executive Director, supported the sales tax. He stated there was
overwhelming public support for continuing this tax to take care of the streets. He stated 10 years
would probably be more reasonable than 20 years because of the crowded ballot.
Councilmember Tharp made a motion, seconded by Councilmember Hamrick, to adopt Resolution
2005-008, inserting the words "10 years" in the blank.
Councilmember Tharp stated taking care of street maintenance using the General Fund would
require an increase in the base tax. She stated this sales tax was an appropriate way to fund the
program.
Councilmember Hamrick stated he was in favor of continuing this sales tax. He stated the roads
needed to be maintained properly. He urged the voters to approve the tax at the April election. He
stated he would like to find ways to incorporate this ongoing need into the current budget.
Councilmember Bertschy stated the City had done an outstanding job in managing these tax funds
for street maintenance. He stated this was a level of service expected by the citizens. He stated this
was not a new tax but was a continuation of an existing tax. He urged voter approval in April.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: None.
(Secretary's Note: The Council took a brief recess at this point.)
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February 1, 2005
Ordinance No. 022, 2005,
Amending Section 25-49 of the City Code, Increasing the Annual Income
Limits for the Determination of Eligibility for the Sales Tax Rebate on Food
to Sixty Percent of the Median Income, Adopted as Amended on First Reading
The following is staffs memorandum on this item.
"FINANCIAL IMPACT
Based on statistics about the income of households in the City, staffestimates that the recommended
changes in the income levels will allow 2,400 additional households to qualifyfor the rebate ofsales
tax paid on grocery food. The cost to the City will increase from about $36,000 in 2004 to over
$200,000 in 2005. The increased amount of cost will need to be appropriated later in the year.
In the event that the sales tax on groceryfood is repealed at the April 5, 2005 election, the rebate
program for tax paid on grocery food would be reduced or repealed by subsequent ordinance,
eventually eliminating any cost to the City.
EXECUTIVE SUMMARY
The City has included grocery food as part of the sales tax base since the inception of the tax in
1969. Tax on grocery food has been an integral part of the tax base, accounting for about
$5, 645,189 of $44.3 million of tax collected for the general government uses. This is 12.7% of the
total tax collected. The City has operated a rebate program for sales taxpaid on groceryfood since
the early 1980s. The program provides that households which meet the income level guidelines
(now set at 30% of the area median income and updated annually) may apply for taxes paid in the
prior year. Approximately 640 households qualify for the program. For each member of the
eligible household, the City rebates $40.
Ordinance No. 022, 2005, would increase the income eligibility levels to 60% of area median
income. This would vastly increase the number ofhouseholds eligiblefor the program. Under the
new guidelines, staffestimates about 3, 000 households would apply and be eligiblefor theprogram.
The Finance Committee reviewed the staffs proposed amendment on January 14, 2005, and
approved this increase. The briefing memo is attached for more information. The Ordinance also
provides for rounding to the nearest $50 for household income eligibility and increases the
maximum members in a household from four to eight. "
City Manager Atteberry introduced the agenda item. He stated this item had been considered by the
Council Finance Committee and that the Committee unanimously recommended approval of this
item. He stated the staff also recommended approval.
Alan Krcmarik, Finance Director, stated the City adopted the original sales tax ordinance in 1967
and that grocery food was included as a taxable item. He stated idea was that the broader the tax
base the lower the rate could be kept. He stated the City rebated a portion of property tax and utility
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February 1, 2005
bills to assist low income families and added a rebate on the grocery sales tax in 1984. He stated
program was linked with state income levels until 1998, when it was tied to area median income.
He stated the rebate was set at 30% of the area median income and that the rate of reimbursement
was increased per person from $25 to $40. He stated the $40 was actually more than an average
person paid on grocery food in a year. He stated the average person spent about $29 per year in tax
on grocery food. He stated there were basic participation guidelines for the sales tax rebate: Fort
Collins residency in the year of application, a Fort Collins address for the year before applying, and
documentation that the income level was below the guideline (30% of area median income). He
stated the program ran from August 1 through December 30 and that about 650 households applied.
He stated the program covered about 880 participants during that five -month period. He stated the
Finance Committee was interested in the public outreach and notice regarding the program. He
stated once eligibility was determined that an application form was sent out automatically each year.
He stated there were public notices on the radio, in the newspaper, utility bill inserts, contacts by
volunteers at low income and senior housing projects, social services and human services contacts,
and word of mouth. He stated the proposed changes would double the income level to 60% of the
area median income. He stated the cap would be raised from four individuals to eight individuals
in a household. He stated this would dramatically raise the number of households eligible for the
program. He stated doubling the income level was predicted to increase the number of eligible
households by seven times. He stated the estimated participation rate of eligible households was
around 30-35% and that the participation rate could increase to as much as 50%. He stated this
would add another $140,000 to the annual cost. He stated the total cost would be about $360,000
to cover the increase in participation and outreach.
Mark Brophy, 1109 West Harmony Road, opposed adoption of the ordinance. He stated the
outreach as outlined would be very expensive and a large percentage of the cost of the program. He
stated the voters would probably repeal the grocery tax in April and that all of this was a moot point.
He stated this was a "political" ordinance to get people to vote against repealing the grocery tax.
He stated the grocery tax should be abolished to reduce the City budget.
Dan Cochran, resident outside of the City, stated he helped circulate petitions to get the food sales
tax repeal on the ballot. He stated the measure should have been placed on the November ballot but
was placed on the April ballot because of inconsistencies in the City Charter. He stated this proposal
was designed to "further manipulate the food tax repeal." He stated this would expand the City food
sales tax "welfare" program to include a family of four earning as much as $39,900 a year. He stated
those behind the proposal clearly recognized the "immoral nature" of the food tax or they would not
be proposing rebates of this "regressive tax." He questioned why this was being done now when an
initiative had been placed before the voters. He stated if 100% of the eligible people participated
in the rebate that the expanded welfare program would cost the City over $600,000 a year than the
current program and undisclosed additional costs for administrative costs. He stated the City was
projecting that only about one-third of those eligible would participate. He stated this was due to
the "undesirable invasion of privacy" to participate in the program and the "stigma" associated with
being part of the welfare system. He stated many eligible households would not participate and that
low income households outside of the City would not be eligible for the rebate. He stated the dollars
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February 1, 2005
spent to gear up for the new rebate program would be wasted when the voters approved the repeal
of the grocery tax in April. He stated the timing was an "attempt to manipulate the voters." He
asked the Council to vote against the proposal.
Mary Brophy, 1109 West Harmony Road, stated it was unfair to tax anyone on food regardless of
income. She stated the ordinance would put a "peculiar burden" on those it purported to help. She
stated getting rid of the tax would help all low income people.
Bruce Lockhart, 2500 East Harmony Road, opposed the ordinance. He stated two-thirds of eligible
people did not apply for the tax now. He stated extending the rebate to wealthier people would not
help those people at all. He stated this proposal would "transfer wealth upward." He stated many
low income people lived outside of the City and bought their groceries in the City. He questioned
limiting the rebate to City residents. He stated this was an attempt to convince people to vote
against repealing the food sales tax.
Kelly Ohlson, 2040 Bennington Circle, supported the ordinance. He stated this was a "fair and
honest" attempt to adjust something that should have been adjusted earlier. He suggested making
the forms and process easier while still working to avoid any potential fraud. He stated this was an
attempt to take care of those who were less fortunate.
Mayor Martinez asked what kind of proof was required for income. Krcmarik stated documentation
could be a tax return and that it took about 45 minutes to fill out the form.
Mayor Martinez asked what kind of personal information had to be submitted. Krcmarik stated all
that was necessary was a tax return showing the number of dependants and the income.
Mayor Martinez asked if the program was open to U.S. citizens only. Krcmarik stated the City did
not check for citizenship papers. He stated applicants could also document their income level
eligibility through the County's Department of Social Services.
Councilmember Bertschy asked if the income level applied to the total number of people living in
a household. Krcmarik replied in the affirmative.
Councilmember Weitkunat asked if there were criteria relating to whether the eight people in the
household were related. Krcmarik stated there could be unrelated members of the household
included in that number. He stated they did not have to be family members to qualify.
Councilmember Weitkunat suggested that there should be a different standard for unrelated
individuals i.e. legitimate dependants in a household. She questioned raising the number from four
to eight. She stated this was a valid discussion given the discussions about rental housing and the
"three unrelated" ordinance. She asked if the City could be subsidizing unrelated people living in
the same household. She suggested that there needed to be some other kind of criteria. Krcmarik
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February 1, 2005
stated $19,950 was the number where the rebate would not apply currently and that there were
households with six or more people in the family but the income level still stopped at that $19,950.
He stated this was set up based on how the census looked at people in a household. He stated the
census would count the total number in the household even if there were two families. He stated the
income statistics were based on those census surveys.
Mayor Martinez asked if five college students living in one house would be counted as one
household. Krcmarik replied in the affirmative.
Councilmember Weitkunat suggested looking at that issue. She asked if people had to bring in
grocery receipts. Krcmarik stated the City did not require any receipts or other proof of what they
spent.
Councilmember Weitkunat asked about the program dates (from August 1 to December 30).
Krcmarik stated applications were sent out just before August 1 and that applications were taken
from August 1 until December 30.
Councilmember Weitkunat asked if there would be an immediate pay -out for those applying early.
Krcmarik stated it would take a couple of weeks to pay.
Councilmember Weitkunat asked where this money came from in the budget. Krcmarik stated it
came from the General Fund and was a separate program in the Finance Department budget.
Councilmember Weitkunat asked if the publicity costs came out of that same line item. Krcmarik
replied in the affirmative.
Councilmember Kastein asked for clarification regarding the section ofthe ordinance describing the
amount of the rebate. Krcmarik stated this did not change the amount and that it changed only the
income limit and the number of people in the household for the purposes of the rebate. He stated
the rebate would remain at $40.
Councilmember Kastein asked ifthe rationale for not requiring receipts was administrative overhead
or privacy issues. Krcmarik stated the rationale was that requiring receipts would be onerous to the
applicants and the City.
Councilmember Kastein asked about the administrative costs and issues experienced by Loveland.
Krcmarik stated Loveland had more participation than what was expected. He stated a half-time
contractual person was added to help with administration. He stated Loveland's program ran for
a shorter time. He stated Loveland had about 1,600 applications and that Fort Collins would
probably have about 3,000. He stated the intent was to handle this with existing staff and expansion
of the volunteer group.
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February 1, 2005
Councilmember Kastein asked if a reduced level such as 50% would make sense or whether there
should be more outreach to increase participation. He stated the Council should direct
experimenting with less of an increase and then revisit the matter in the future.
Mayor Martinez asked if the criteria referred to "family" or "unit." Krcmarik stated he would get
that information to the Council.
Mayor Martinez asked if "household" meant "family." City Attorney Roy stated had not been
defined in the context of this ordinance and that staff would take a look at that prior to Second
Reading.
Councilmember Weitkunat asked if the Finance Committee was recommending 60% because
Loveland went to 60%.
Councilmember Bertschy stated was the basic reason.
Councilmember Weitkunat stated everything was being doubled and that there would be a cost. She
expressed a concern about the magnitude of the change.
Mayor Martinez stated one of the citizens indicated that this would cost the City $600,000 per year.
He asked where that figure came from. Mr. Cochran stated if 100% of the people who were eligible
applied that it would cost over $600,000 per year. He stated staff was estimating that only one-third
would actually apply. Krcmarik stated Code Section 25-46 provided that "household" was defined
as "no more than three persons not related."
Councilmember Hamrick asked about the current administrative cost for this program. Krcmarik
stated part of one person's time was involved with this program. He estimated the administrative
cost at about $13,000 to $15,000. He stated the cost of the forms and the mailings was about $4,500.
Councilmember Hamrick stated the Finance Committee looked at the overall benefits of having the
program. He stated this was a fair way to address some of the impacts of the tax on lower income
people.
Councilmember Bertschy made a motion, seconded by Councilmember Roy, to adopt Ordinance No.
022, 2005 on First Reading.
Councilmember Kastein asked for a friendly amendment to adjust the 60% to 50%.
Councilmember Bertschy stated he would not accept that as a friendly amendment and that he felt
comfortable with the 60%.
Councilmember Weitkunat made a motion, seconded by Councilmember Kastein, to amend the
ordinance to change the reference to 60% to 50%.
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February 1, 2005
Councilmember Weitkunat stated 50% would represent a reasonable increase. She stated Loveland's
experience with 60% could be a "caution" to Fort Collins. She stated the 50% would also decrease
the administrative costs.
Councilmember Hamrick stated the City had an obligation to the lower income people to rebate
some of the money in these hard times. He stated if there was to be a tax on food that it was only
fair to have a rebate program. He stated 60% was not unreasonable and was in line with other
communities.
Mayor Martinez asked what other cities besides Loveland did with regard to the rebate percentage.
Krcmarik stated Boulder and Greeley had programs that were similar to the City's current program.
He stated staff could provide information about other cities' program before Second Reading.
Councilmember Tharp stated she would like the City to up the eligibility level. She stated it would
be an improvement to go to the 50% figure.
Councilmember Roy stated at 60% a household of eight could make $6,585 per person and that
changing to 50% would mean that each person could make $5,487. He stated a household of four
could make $8,412 per person. He stated the qualifying wage levels were low.
Councilmember Kastein called for the question.
The vote on the motion to amend was as follows: Yeas: Councilmembers Kastein, Martinez, Tharp
and Weitkunat. Nays: Councilmembers Bertschy, Hamrick and Roy.
THE MOTION CARRIED
Councilmember Weitkunat stated she was interested in a motion to define "household" as a "family."
Mayor Martinez pointed out that the definition read by the Finance Director addressed that issue.
Councilmember Weitkunat stated she would withdraw her motion.
Councilmember Kastein stated the question had been posed about the timing of the ordinance. He
stated the initiative to repeal the food sales tax had caused the Council to think about the rebate
program and that the rebate was not sufficient. He stated it was a "legitimate compromise" to have
a food sales tax but to offer a rebate to low income people.
Councilmember Weitkunat stated the ordinance did not include the cost for additional outreach. She
asked if expansion of the outreach would be discussed as a policy issue. Krcmarik replied in the
affirmative.
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February 1, 2005
Councilmember Weitkunat asked if the ordinance would approve the extra $140,000 for outreach.
Krcmarik stated the $140,000 would be the result of the outreach i.e. there would be more eligible
households that would cost the City another $140,000. He stated this was not the amount for
outreach or staff.
Councilmember Roy stated the discussion from the audience was about how some people wanted
to "dismantle" the local government. He stated the everyone in the community benefited from
facilities and the quality of life that would not be available if the City had to "slash" its budget as
a result of repeal of the grocery sales tax. He stated this ordinance would provide "some measure
of comfort" for some individuals. He stated the rebate program was an appropriate activity to make
the food sales tax less 'onerous."
The vote on the main motion as amended was as follows: Yeas: Councilmembers Bertschy,
Hamrick, Kastein, Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED
Meeting Continued
Councilmember Bertschy made a motion, seconded by Councilmember Roy, to continue the meeting
to consider agenda items #30 and 31.
Mayor Martinez explained the reason for the motion to continue the meeting past 10:30 p.m. to
midnight.
Councilmember Weitkunat stated the continuation implied that the meeting would end at midnight.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Martinez, Roy
and Tharp. Nays: Councilmembers Kastein and Weitkunat.
THE MOTION CARRIED
Resolution 2005-009
Expressing the City Council's Opposition to the Citizen Initiated Ballot
Measure Which Would Repeal the City's Sales Tax on Grocery Food, Adopted
The following is staff's memorandum on this item.
February 1, 2005
"FINANCIAL IMPACT
The proposed Ballot Measure No. 1 decreases the sales tax on grocery food in three steps. Ifvoters
approve Ballot Measure No. 1, the City's sales tax for general government uses will decrease by
approximately $1.9 million in 2005, an additional $1.9 million in 2006, and an additional $2.0
million in 2007. The cumulative effect of the revenue reductions will be approximately $6 million
in 2007. The City will have to find alternative revenue sources or cut services or a combination of
the two. The tax represents 12.7% of the sales tax collected for general government uses.
EXECUTIVE SUMMARY
A group of citizens submitted a petition with a sufficient number of signatures to have Citizen
Initiated Ordinance No. 2, 2004, Relating to the Elimination of Sales Tax on Grocery Food, placed
on the ballot in the upcoming April 5, 2005, City election. On January 14, 2005, the Council
Finance Committee (Mayor Pro-tem Bertschy, and Council Members Eric Hamrick and Kurt
Kastein) met to review and discuss the Ordinance. By the year 2007, the revenue loss due to the
elimination of the sales tax on grocery food will be approximately $6 million. In combination with
other budget cuts made during the prior three years, the funding reductions to support City provided
services will exceed $12 million. This level ofrevenue reduction and service elimination will have
a drastic and continuing effect on the economic health of the City and its ability to provide services
to citizens. Based on the analysis provided by staff, the Committee recommended that a resolution
be developed opposing Ballot Measure No. I and presented to the entire Council for discussion and
consideration for adoption on February 1, 2005.
BACKGROUND
Below area number ofquestions and answers about the taxation ofgrocery food. This information
wasfirstprovided to Council in thefall of2004. Figures have been updated where more up-to-date
information is available.
City of Fort Collins voters first approved sales and use taxes effective January, 1968. The tax rate
was 1.0% and grocery food for home consumption was included as a taxable item. The sales tax
base was intended to be broad in order to maintain an overall low tax rate. Since 1968, the base
sales tax rate has risen to 2.25% - still lower than the average Colorado municipal sales tax rate
of 2.82%.
Citizen's Tax Committee formed in the late 1970's first recommended a rebate ofsales tax on food
for low income families. An October 4, 1979 Citizen's Tax Committee report to the Fort Collins
City Council recommended that the City discontinue taxing grocery food — but instead raise the
sales tax from 2.0% to 2.5% to make up for the lost revenue. The recommendation was made to
coincide with the State of Colorado's exemption forgroceryfood that became effective in 1979. The
City did not choose to follow this recommendation.
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February 1, 2005
In 1984, City Council adopted Ordinance No. 174, 1984 to provide a sales tax rebate on food for
low income residents. Also in 1984, voters approved two new quarter -cent sales taxes for which
groceryfood was exempt. Groceryfood has continued to be exempt from each new quarter -cent
sales tax that has been approved since 1984 — leaving groceryfood to be taxed at the base rate of
2.25%.
What is theproposed initiative? Ifpassed by voters, the initiative will repeal the sales tax that the
City currently collects on food purchased for domestic home consumption. The 2.25% tax would
sunset over a three-year period. In 2004, the City collected $5, 645,169 in sales tax from grocery
food.
What is the projected impact on the City's budget? The sales tax from groceryfood was 12.7% of
the sales taxes collected for the general fund in 2004.
13%
City of Fort Collins
Sales Tax Collections
87%
2004
p General Fund Sales Tax =
$44.3 million
O Sales Tax From Grocery
_ $5.6 million
What is the tax used for? The sales tax on food is used for general fund services. Those services
include: police services (including uniformed officers); fire prevention and protection, cultural,
library and recreation; community planning and environmental services; communication and
technology; administrative services; and other programs that meet special needs.
What does the exemption mean? By exemptinggroceryfood from the sales tax base, the City would
narrow its existing base. Possible ways to offset the narrower base could include increasing the tax
rate or decreasing services. Based on a recent surveyfrom the Colorado Municipal League (CML),
self -collected cities that do not tax food have a much higher rate oftax than the cities and towns that
include groceryfood in their sales tax base. The difference is significant. With food in the base,
the average rate is about 3.15%; with food exempted, the average rate is 3.95%.
By includinggroceryfood in the revenue base, economists note that "governments are more assured
that their revenue base can finance a floor ofgovernmental services in difficult economic times. "
(Mikesell: 1996)
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February 1, 2005
Who pays the tax on groceryfood? Both residents and non-residents of Fort Collins, including
students and tourists pay the 2.25% tax on groceryfood. Recent studies indicate that about 35%
of the sales tax paid in Fort Collins comes from non-residents who shop here. The only group of
people who do not pay a sales tax on food are low-income families who purchases their groceries
with food stamps.
Wouldn't most of the tax savings from this exemption go to the poor? No. The bulk of the tax
savings would go to the most affluent households, and those savings would not benefit low income
households that participate in the City's sales tax on grocery food rebate program. Under the
program, an average household (2.5 persons) currently is eligible for $100 of sales tax rebate.
According to recent studies, the grocery tax burden on these households is about $75, so the low
income residents of the City are eligible for full reimbursement of the taxes they pay on grocery
food. Moreover, the Council is, on this same agenda, considering an amendment to that program
that would greatly expand the group ofpersons eligible for the rebate.
What would this tax cut mean along with the recent decreases in sales tax collections? The City
of Fort Collins has been through difficult economic times the last three years. In the past three
years, sales and use tax collections fell short of original budget projections, leading to cuts in
programs and services. The City's outlook is thatprograms and services will have to remain below
previous levels until the economy regains enough strength to support them.
It is very difficult to find and for voters to reinstate tax revenues once they have been reduced --
especially when a recession rolls around or when budgets are otherwise pressured. The reduced
amount of revenue to the City's general fund would be about $6 million when the final phase of the
amendment is implemented.
How common is it to have a sales tax on food? Of the 58 Colorado cities and towns that collect
their own sales taxes, 47 (over 80%) tax groceryfood. Of all cities and towns in Colorado that have
a sales tax, 82% of them include groceryfood in the tax base.
Is Fort Collins the largest City in Colorado to tax grocery food? No. Lakewood taxes grocery
food. Of the larger cities who exempt groceryfood, all have higher base tax rates than Fort Collins'
2.25%rate. Aurora at3.75%, Denver at3.5%, and Colorado Springs at2.5%exempt groceryfood.
The State of Colorado does not tax groceryfood, but has a base rate of 2.9%. The following table
shows the tax rate for groceryfood in neighboring communities.
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February 1, 2005
City
Sales Tax Rate for
Grocery Food
Loveland
3.0%
Greeley
3.46%
Estes Park
4.0%
Johnstown
3.0%
Windsor
3.2%
Che enne W omin
6.0%
Couldn't the reduction in sales tax revenues be absorbed by the City through increased
efficiencies? The City always seeks to improve the efficiency ofservices, and while it takes time for
all ofthe efficiencies to be demonstrated in dollarsavings, theproductivitygains will be minor when
compared to the large loss offunds if this initiative is approved by the voters.
Is there anything else about the sales tax on grocery food?
1. Food is a basic necessity, but like shelter, utilities and clothing, it is subject to City sales tax
as a percentage of the final price. Sales tax on food is an appropriate form of taxation in
Colorado, and is utilized by many municipalities including Fort Collins. The broader the
base the more fair the tax.
2. CML's 2004 annual report opposes further reductions in state and local sales and use tax
rates. CML also supports a broadening of the state sales and use tax base. (Elimination of
the state's tax on grocery food was the single largest exemption ever provided by the State
of Colorado)
3. Reduction of the City's sales tax revenues will have a profound effect on services for all
citizens.
4. Sales tax is sensitive to economic cycles and keeps pace with inflationary periods.
Are there other legal or financial concerns with the proposed ballot measure? Yes. In 2003, the
City issued sales and use tax refunding bonds which mature in 2009. In the ordinance issuing those
bonds, the City pledged not to amend the provisions of the Sales Tax Code in such fashion as to
diminish the City's sales tax revenues, since those revenues arepledged to the payment ofthe bonds.
The City Attorney is ofthe opinion that, if the City amends the Code as to reduce sales tax revenue
prior to December 1, 2009, as would be required by passage of this ballot measure, the City would
violate the foregoing bond covenant and such action would likely constitute an impairment of
contracts that is prohibited by the Colorado Constitution. Additionally, the Financial Officer
projects that such action could have a very substantial negative impact on the City's outstanding
bond ratings.
February 1, 2005
The Council Finance Committee has reviewed four possible scenarios for budget reductions that
maybe implemented if the ballot measure is approved by the voters. Summaries of the scenarios
are attached for information purposes.
For these reasons, both the Finance Committee and the City Manager strongly recommend that
Council adopt this Resolution opposing the repeal of the City sales tax on groceryfood. "
City Manager Atteberry introduced the agenda item. He stated the proposed Resolution was in
response to a citizen -initiated petition to eliminate the sales tax on grocery food. He stated the
question would be put before the voters at the upcoming City election on April 5. He stated the
measure would remove the current sales tax of 2.25% on all grocery food sales within the City. He
stated the result would be an estimated $6 million loss in General Fund revenues for general
government services. He stated General Fund revenues supported totally or in part the following
services for citizens: police, fire, transportation, affordable housing, library, neighborhood
resources, code enforcement, building inspection, planning, recreation and cultural programs, etc.
He stated if the tax was repealed that critical services would be significantly reduced and in some
cases eliminated. He stated beginning in 2001 sales and use tax revenues for City services dropped.
He stated to cope with the reduced revenues the City took several actions related to the 2003, 2004,
and 2005 budgets to cover the $5.9 million in ongoing revenues and a $500,000 reduction in one-
time monies. He stated numerous vacant City staff positions were frozen (as many as 72 positions)
and that there were currently 67 frozen positions. He stated merit increases for City employees were
suspended, that employees were required to pay for a larger share of medical premiums (to 25% for
the employee share by January 1, 2007), and that a variety of direct services and indirect support
services were cut. He stated the grocery tax repeal would require the City to cut another $6 million
beyond the cuts that had already been made. He stated staff had prepared four potential budget cut
scenarios. He stated each scenario would result in approximately $6 million in reductions. He
stated all four scenarios included: closing the Youth Activity Center, no increase in code
enforcement services and possibly reducing those services, eliminating City support for community
social services agencies, eliminating all services provided by the Human Rights Office, and slowing
the implementation of the EV SAG. He stated all four scenarios were included in the Council agenda
materials. He stated reductions would have the greatest impact on secondary and support services.
He stated those were the services that enhanced quality of life and increased the value of living in
the community and that provided the management and assistance to carry out all primary and
secondary services. He stated he was concerned that if the ballot measure was approved that it
would be detrimental to the community and would severely inhibit the City's ability to continue to
provide the types and levels of services expected by the community. He urged the Council to
approve the Resolution to express the Council's opposition to the repeal of the sales tax on grocery
food.
Alan Krcmarik, Finance Director, stated the original proposal was intended for the November ballot
and would have started the roll -back of the grocery tax beginning January 1, 2005. He stated the
next step down in the sales tax would occur January 1, 2006, and that the final step would be in
2007. He stated $6.4 million in cuts had already taken place. He stated in 2002 more than $500,000
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February 1, 2005
in one-time cuts were removed from the General Fund, that in 2003 $2.55 million in ongoing money
was cut, that in 2004 $3.3 million in cuts were made. He stated the cuts totalled $6.4 million over
the past three years. He stated the grocery tax repeal would mean another $6 million in cuts. He
stated would be nearly 13% of the base revenue generated by the 2.25% sales tax. He stated this
would affect virtually all services provided by the City either directly or indirectly. He stated
Poudre Fire Authority was funded by a revenue allocation formula and that .3% of the 2.25% tax
should go to the PFA under that formula. He stated library and recreational services would be hit
hard. He stated performing arts would be impacted. He stated this would be a setback to the City's
plans for maintenance schedules for parks and buildings. He stated there would be cuts in
community planning and environmental services. He stated support services could be cut more than
$1 million (GIS, web programs), and that Council priorities would be impacted (affordable housing,
contributions to social and human services). He stated the reason the grocery food tax was deemed
to be fair was because everyone who used City services (residents, visitors, people from nearby
areas) paid the tax. He stated people who used food stamps to pay for groceries did not have to pay
the food sales tax. He stated those people were also eligible for the City's rebate program. He stated
35% of the total sales tax came from people living outside of the City. He stated several studies
have indicated that most of the tax savings resulting from exempting the food tax from the base
would go to the most affluent households that bought more expensive goods. He stated eliminating
the food sales tax would eliminate the sales tax rebate program. He stated the City currently rebated
about $40 per person and that based on local and national studies that amounted to about $11 more
than what was paid per year on grocery food taxes. He stated over 80% of Colorado cities and
towns that had a sales tax included food in the base. He stated of the largest 59 cities, 83% taxed
grocery food. He stated the broader the base, the lower the rate. He stated if the sales tax was
narrowed that a higher tax rate would be needed. He stated those of the 59 cities that did not tax
food had nearly a 4% tax rate. He stated those that included a grocery tax in the base had a 3.15%
tax rate. He stated Fort Collins' total rate would be at 3% and that the base rate would be at 2.25%.
He stated a quarter -cent increase for pavement management would raise about $5.5 million and that
would not quite cover the revenue loss from the grocery tax. He stated the Council could consider
a property tax increase to offset the grocery tax loss. He stated the property tax would have to be
raised by about 45%. He stated an increase in the base tax or the property tax would require voter
approval. He stated the other way to offset revenue lost would be to increase fees for services. He
presented a projection of the ten-year General Fund budget showing existing and projected
expenditures. He stated projected expenditures were already above projected revenues and that the
loss of the food sales tax revenue would create an expanded deficit. He stated based on a 5%
average growth in General Fund revenues and a 6% growth in sales and use tax, the financial picture
would not be "rosy." He stated there would be a widening gap with the assumption that General
Fund revenues would grow at 3% and sales tax would grow at 4%. He stated there was competition
for retail sales in northern Colorado and increasing Internet sales of goods and services. He stated
the first two of the four scenarios were broader based. He stated the first scenario was across all
services, including police and fire, and that the second scenario was across all services, with some
of the cuts to police taken out and additional cuts to fire services. He stated many quality of life
services such as parks, libraries, the Youth Activity Center, neighborhood resources and air quality
would be impacted. He stated the third scenario tried to spare primary services and that this would
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February 1, 2005
mean deeper cuts for quality and support services. He stated scenario four included cuts to some
primary services but left police and fire out.
Steve Roy, City Attorney, explained legal issues relating to bond covenants. He stated the City
issued sales and use tax revenue refunding bonds in 2003 and that the bond ordinance included a
covenant that said that the City would not amend or repeal certain of its ordinances in a way that
would diminish the revenues pledged to the payment of the bonds. He stated the pledged revenues
consisted primarily of the sales and use tax revenues. He stated the initiative sought to amend a
section of the City Code that established the amount of the City's tax charged on grocery food. He
stated this would diminish the pledged revenues. He stated he had expressed a concern that the
passage of the measure by the voters would be contrary to the covenant contained in the bond
ordinance. He stated covenants of that nature had been held by the courts to constitute a contract
between the City and its bondholders. He stated the provision of the Colorado Constitution that
prohibited legislation that would impair existing contracts could also be violated. He stated for those
reasons he had a concern if the measure passed with the City moving ahead to implement the repeal
of the sales tax on grocery food at least until December 1, 2009 when those bonds would be fully
paid. He stated his recommendation to the Council would be to seek a declaratory judgment and
have a court determine whether or not, if the measure passed, the City would be able to honor that
and repeal the tax, or whether instead the bond covenant would require the City not to implement
the repeal until the bonds were paid in 2009.
Krcmarik stated this Resolution was recommended by the Finance Committee to the entire Council.
He stated the Resolution stated the Council strongly opposed the change in the tax base to exempt
grocery food and would urge voters to vote against Ballot Measure No. 1.
Bruce Lockhart, 2500 East Harmony Road, spoke in opposition to the Resolution.
Mark Brophy, 1109 West Harmony Road, initiative petition sponsor, opposed the Resolution and
spoke in favor of reducing government.
Lloyd Walker, Rolland Moore Neighborhood, spoke in support of the Resolution because of the
negative impacts of the tax repeal on quality of life services.
Rich Shannon, 5000 Boardwalk Drive, supported the Resolution to ensure the continuation of"great
services."
Joe Rowan, 621 Gilgalad Way, spoke in favor of an "open and honest dialogue" on how General
Fund dollars should be spent and why this tax was important to the community.
Mary Brophy, 1109 West Harmony Road, opposed the Resolution and supported City budget cuts.
Dan Cochran, resident outside of the City, spoke in opposition to the Resolution and objected to the
scheduling of this measure in April rather than last November.
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February 1, 2005
Councilmember Tharp requested that staff explain why this measure could not be scheduled in
November. City Attorney Roy stated there were two conflicting Charter provisions relating to
placement of a measure on a special election ballot if the requisite signatures were obtained and
limiting the number of special elections that could be held in a 12-month period. He stated the court
agreed with the City's interpretation that the limitation on the number of special elections prevailed.
Councilmember Weitkunat asked ifthe Council would be asked to address those conflicting Charter
provisions. City Attorney Roy stated the Charter could be amended by the voters, and that the
Council could propose an amendment. He stated staff had not been directed to look into a proposed
Charter amendment.
Mayor Martinez stated some possible budget cuts were not considered in the four scenarios. He
stated there should be a "true analysis" of every piece of the budget on a line item basis if cuts were
needed. He stated the analysis should be deeper and look at services that were not on the list of
potential cuts. City Manager Atteberry stated the Executive Lead Team was diligent about not
trying to portray "dramatic" cuts that would be "threatening" in the first two scenarios. He stated
the Mayor and Finance Committee asked staff to develop the last two scenarios for no cuts in
primary services and no cuts in fire and police. He stated the four scenarios gave the Finance
Committee and the Council an array of options that would be "real cuts" that the service areas would
have to live with if the cuts were needed. He stated if the tax was repealed that staff would work
with the Council on a line item review.
Mayor Martinez stated there was a need to look at the "whole picture" and protect emergency
services.
Councilmember Kastein stated some speakers suggested looking at the entire budget. He stated this
had been done and that every service delivered by the City had been categorized. He stated the
Finance Committee decided not to support any of the four scenarios at this time even though there
was support for the fourth scenario. He stated many details would have to be worked out before the
Council could support a budget that would reduce $5.5 million from the General Fund. He stated
the list of services prepared by staff would be a tool to determine how any budget cuts would be
made and what would be the priorities for funding. He stated budget cuts should be looked at in
terms of what needed to be improved in City government. He thanked staff for preparing a
comprehensive list of City services.
Councilmember Hamrick made a motion, seconded by Councilmember Tharp, to adopt Resolution
2005-009.
Councilmember Bertschy stated any discussion about budget cuts needed to focus on the services
provided, the impacts on lives of citizens, and a sound basis. He stated the money citizens spent on
the grocery sales tax provided many important services. He stated it was "irresponsible" for the
proponents of the initiative to be so "negative" about the good work done by the City without having
the facts straight. He stated the Finance Committee looked at all of the scenarios and that there
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February 1, 2005
would be a dialogue on any cuts. He stated every City program served citizens and that those
citizens deserved a "fair hearing" before cuts were made. He stated he would support the
Resolution.
Councilmember Hamrick commended staff for their work in looking at all the options. He stated
the Finance Committee did "due diligence" by "digging down into the detail." He stated the Finance
Committee did not want to "pre judge" what the new Council would do after the April election. He
stated the citizens needed to be involved in this as well. He stated he was "philosophically" opposed
to taxing food but that as an elected official he was responsible to the citizens for the financial health
of the City. He stated removing a tax on food in this manner would be "irresponsible" given the
financial picture. He stated he urged the voters to vote no on Ballot Issue No. 1.
Councilmember Tharp stated the services provided by the City were valuable to the citizens. She
stated "we get what we pay for." She stated the current level of quality could not be maintained if
the resources were not available. She stated individual citizens contributed less than $30 per year
via the food sales tax. She asked the citizens to decide if the services provided were worth that cost.
She stated she did not think that Fort Collins wanted to cut the services that were important to them.
She stated if they wanted to keep the services that those needed to be paid for. She noted than many
budget cuts had already been made and that about $2 million had been saved each year by not giving
raises to employees for three years. She stated the City did not have a "fat budget." She stated high
quality services were provided to the community and that she believed that the voters would reject
the repeal of the tax because "they get their money's worth."
Councilmember Weitkunat stated she strongly supported the Resolution. She stated the City had
a low general sales tax. She stated equity was important and that the rebate was a way to equalize
things. She stated sales tax paid by non-residents was a "gift" to the community. She stated through
the food sales tax everyone, including visitors, paid an equitable share for City services. She stated
there was a need for accountability for spending. She stated costs needed to be examined when new
programs were put in place by the Council.
Councilmember Kastein stated citizen initiatives needed to be used carefully. He stated this one was
"pretty reckless." He stated he spent a lot of time reviewing the scenarios and looked at a larger list
of cuts. He stated he looked at whether there was some room to cut this much money from the
budget. He stated the budget could be reduced by $5.5 million and that this would be a "different
City government" and a "different City" if that was done. He stated the cuts would reduce the
quality of the City to a point that would be unacceptable to him. He suggested that the voters not
approve the repeal. He stated the Council needed to be "vigilent" in making decisions about how
taxpayer dollars were spent.
Councilmember Roy stated he supported the Resolution. He stated there had been comments made
about cutting neighborhood services and that he believed that this program provided "exceptional"
service and helped make Fort Collins a better community.
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February 1, 2005
Mayor Martinez stated the Council needed to look "deep and wide" at all line items if budget cuts
were needed. He stated he believed that the proponents were "misleading" the public about the
initiative. He stated sales tax helped fund roads and other City services used by everyone. He stated
the voters had approved taxes such as those for Building Community Choices.
The vote on the motion was as follows: Yeas: Councilmembers Bertschy, Hamrick, Kastein,
Martinez, Roy, Tharp and Weitkunat. Nays: None.
THE MOTION CARRIED
Items Relating to Nuisance Gatherings, Public Nuisance Amendments
and Rental Registrations, Not Considered (Rescheduled to February 15, 2005)
Mayor Martinez stated this item would be continued and would be the first item considered at
the February 15 meeting.
Adjournment
The meeting adjourned at 12:00 a.m., Wednesday, February 2, 2005.
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ayor
ATTEST:
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