HomeMy WebLinkAboutMINUTES-09/19/2006-RegularSeptember 19, 2006
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, September 19,
2006, at 6:00 p.m. in the Council Chambers of the City of Fort Collins City Hall. Roll Call was
answered by the following Councilmembers: Brown, Hutchinson, Kastein, Manvel, Ohlson, Roy
and Weitkunat.
Staff Members Present: Atteberry, Krajicek, Roy.
Citizen Participation
Al Baccili, 520 Galaxy Court, opposed funding cuts for Dial -a -Ride.
Seth Anthony expressed thanks for the live cablecasts and video streaming of the City Council
meetings.
Citizen Participation Follow-up
Mayor Hutchinson thanked those who spoke during Citizen Participation
Councilmember Roy asked staff to speak about the technological changes taking place at City Hall
relating to the website interface. City Manager Atteberry stated the City had unveiled a new user
friendly design for the City's website and the City was looking at a new search engine.
Councilmember Kastein stated Dial -a -Ride was an important function and Council was looking at
ways to deal with the funding issues. There might be other ways for the service to be provided and
noted the Dial -a -Ride service would cost the City $1.1 million in 2007.
Mayor Hutchinson stated the City was considering whether to reduce the Dial -a -Ride operation to
the minimum federal ADA standards. City Manager Atteberry stated the proposed budget would
reflect reductions in Dial -a -Ride and additions for fixed route transit, which would be a more
efficient way to provide services.
A¢enda Review
City Manager Atteberry stated there were no changes to the published agenda.
Ray Schultz, 625 Holyoke Court, withdrew item #20 First Reading of Ordinance No. 148, 2006,
Authorizing the Grant of a Non-exclusive Easement and Right -of -Way to Platte River Power
Authority for Construction and Maintenance of a 230kV Transmission Line from the Consent
Calendar.
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CONSENT CALENDAR
6. Second Reading of Ordinance No. 127, 2006, Appropriating Unanticipated Grant Revenue
in the Natural Areas Fund and Authorizing the Transfer of Existing Appropriations in the
Natural Areas Fund to be Used to Gather Information Necessary for the Development of the
Soapstone Prairie Natural Area Management Plan.
The Colorado Division of Wildlife has awarded a Colorado Wildlife Conservation Grant to
the Natural Areas Program in the amount of $32,760. This Ordinance, unanimously adopted
on First Reading on September 5, 2006, appropriates the grant revenue and authorizes the
transfer of existing appropriations in the Natural Areas Fund to be used to gather information
necessary to develop the Soapstone Prairie Natural Area Management Plan.
Second Reading of Ordinance No. 128, 2006, Appropriating Unanticipated Grant Revenue
in the General Fund for the Operation of the Fort Collins Welcome Center.
The Colorado Tourism Office has awarded the City $70,222 for the operation of the Fort
Collins Welcome Center. As this amount exceeds the $57,000 originally anticipated, this
Ordinance, unanimously adopted on First Reading on September 5, 2006, appropriates the
unanticipated $13,222 in grant funds.
8. Second Reading of Ordinance No. 129, 2006, Appropriating_ Unanticipated Revenue in the
Capital Projects Fund - Water Craft Course Capital Project to be Used for a Feasibility Study.
Design and Construction of a Water Craft Course Along a Section of the Cache La Poudre
River Near the Old Power Plant.
The vision of developing of a water craft course in the Downtown area at the Old Power
Plant was identified in the Downtown River Corridor Implementation Plan ("DRCIP"). The
course would be located in the area downstream of the North College Avenue Bridge to a
take out area at the BNSF Railroad trestle. The DRCIP identified the need for a feasibility
study prior to the development of the course. The project has come through the City's
Preliminary Design Review. This Ordinance, unanimously adopted on First Reading on
September 5, 2006, appropriates unanticipated revenue in the Capital Projects Fund to be
used for a feasibility study, design and construction of a water craft course.
9. Second Reading of Ordinance No. 130, 2006, Authorizingthe he Appropriation of Funds for
Capital Improvements to Construct Capital Improvements at the Fort Collins -Loveland
Airport and Operating Expenses for Consulting Services Needed for a New Passenger
Facility Charge Application.
The 2006 operating budget for the Fort Collins -Loveland Municipal Airport did not include
unanticipated Federal Aviation Administration ("FAA") Grant funds that were recently
received. In order to fully fund the construction project associated with the $4,627,500 FAA
grant, additional funds are needed in the total amount of $501,452. Also, operating funds
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in the amount of $7,500 are needed to hire a consultant to prepare a new Passenger Facility
Charge ("PFC") Application. The $7,500 cost will be fully recovered from the PFC
collections. The Airport's current budget does not include funding for this expense. This
Ordinance, unanimously adopted on First Reading on September 5, 2006, appropriates the
City's 50% share of the costs in the amount of $254,476.
10. Second Reading of Ordinance No. 131, 2006, Amending the Land Use Code Article 4 to Add
a New Rural Lands Zone District, as Division 4.1 and Rearrange Division Numbering and
to Revise Article 3 Section 3.9.2 to Allow Single Family Residential in the RUL District
Within One-Ouarter Mile of Interstate Highway 25.
Ordinance No. 131, 2006, unanimously adopted on September 5, 2006, amends the Land Use
Code, Article 4, to add anew Rural Lands Zone District, Division 4.1. All proceeding
Divisions will then be rearranged. This action represents a housekeeping item to rearrange
the numbering of the Article 4 Districts in the Land Use Code, based on the inclusion of the
new RUL District placed in the front as Division 4.1. The adjustment to the numbering of
all other Divisions includes 4.1— 4.28. As part of this amendment, three new Divisions are
added as future placeholders, reserved for future use.
This Ordinance also amends the Land Use Code, Article 3 — General Development Standards
to allow single-family lots within 1 /4 mile of I-25, which would exempt the RUL zone from
the residential restriction.
I t . Second Reading of Ordinance No. 132, 2006, Authorizing Execution of the Amended Plat
Related to the Dedications of Public Rights -of -Way in the Amended Hersh Minor
Residential Development No. 06-52555 for the Benefit of the City of Fort Collins and the
Natural Areas Program.
This Ordinance, unanimously adopted on First Reading on September 5, 2006, authorizes
the execution of the amended plat related to dedications in the Hersh Amended Residential
Development. The County requires that the amended plat dedicate all roads as public rights -
of -way.
12. Postponement of Second Reading of Ordinance No. 133, 2006, Authorizing the Grant of an
Access. Drainage, and Utility Easement from the City to The Greens at Collindale
Homeowners Association to October 3, 2006.
D. Geisler Development and Packard Enterprise, Inc. is developing The Greens at Collindale
PUD, First Replat, located on South Lemay Avenue adjacent to Collindale Golf Course,
which is owned by the City of Fort Collins. The proposed access, drainage, and utility
easement will relocate and provide a necessary detention area for the development. The
Greens at Collindale Homeowners Association has requested that the developer put funds
into an escrow account to ensure completion of improvements associated with the easement.
The developer does not believe this is necessary and is requesting a postponement of the
Second Reading to October 3, 2006 to resolve this request from the Homeowner's
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Association.
13. Second Reading of Ordinance No. 134, 2006, Vacating a Portion of Street Right -of -Way on
Oak Street Located West of College Avenue. Established as Part of the 1873 Map of the
Town of Fort Collins, for Purposes of Constructing Oak Street Plaza Park Improvements.
This Ordinance, unanimously adopted on First Reading on September 5, 2006, vacates a
portion of right-of-way for Oak Street, retaining a blanket easement over the entire vacated
portion for access, drainage and public utilities. This portion of Oak Street right-of-way is
being vacated to facilitate the use, management and regulation of Oak Street Plaza Park as
a park, rather than as right-of-way.
14. Second Reading of Ordinance No. 135, 2006, Authorizing the Conveyance of a Utilitv
Easement and Temporary Construction Easement for the Greeley Waterline Enhancement
Transmission Project.
As part of the Greeley Waterline Enhancement Transmission Project, the City of Greeley
needs to install a waterline on property owned by the City of Fort Collins. The City of
Greeley has asked the City of Fort Collins to grant two utility easements and two temporary
construction easements for said waterline. City staff has reviewed the proposed easement
areas and has agreed there will be no negative impact to the City property by granting these
easements. This Ordinance, unanimously adopted on First Reading on September 5, 2006,
authorizes conveyance of these easements to the City of Greeley.
15. Second Reading of Ordinance No. 136, 2006, Declaring Certain City -Acquired Property as
Timberline Road Right -Of -Way.
The City completed the purchase of land for the Timberline Road Extension Project in 1998.
However, none of the property was designated as right-of-way. This Ordinance,
unanimously adopted on First Reading on September 5, 2006, declares that the real property
adjacent to Timberline Road, north of Highway 14, is right-of-way for Timberline Road and
related improvements, and that this Ordinance be recorded in order to establish a public
record of the existence of such right-of-way.
16. First Reading of Ordinance No. 144, 2006, 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.
The Colorado Department of Public Health and Environment has awarded the City a $5,760
grant for continuing education and outreach to encourage radon testing and mitigation.
Specific efforts include media advertising, low-cost test kit sales, and a revised radon
brochure for home buyers. This Ordinance appropriates the unanticipated grant revenue for
this program. Matching funds of $5,760 will be provided from the existing 2006 Air Quality
Improvement Budget. The funding period is from October 1, 2006 through September 30,
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2007.
17. First Reading of Ordinance No. 145, 2006, Amending Section 17-101 of the City Code
Establishing Criteria for Discharge of a Weapon Permit.
This Ordinance amends the City Code to provide the Police Chief authority to issue a non-
transferable, revocable permit allowing the discharge of firearms or weapons by any public
or private entity or private person at a specific location to test -fire firearms cleaned or
repaired at a licensed firearms dealer's business location within appropriately zoned areas of
the City and only to those businesses operating prior to annexation.
This City Code amendment was prompted by issues raised during the Southwest Enclave
Annexation public process.
18. First Reading of Ordinance No. 146, 2006, Authorizing the Conveyance of a Conservation
Easement on City Natural Area Property (Round Butte Ranch Phase 2) to Larimer County
and Authorizing a Related Grant Agreement with the Board of the Great Outdoors Colorado
Trust Fund.
This Ordinance authorizes the conveyance of a 720-acre conservation easement on Round
Butte Ranch, Phase 2, from the City's Natural Area system to Larimer County and authorizes
entering into a grant agreement with the Board of the Great Outdoors Colorado Trust Fund.
The City will receive a $212,700 grant from Great Outdoors Colorado to support the
conservation of the property. The grant requires that a conservation easement be placed on
the property and conveyed to a qualified third party. The conservation easement
acknowledges and protects the natural qualities of the property. It also allows a single five -
acre building envelope as well as continued ranching and other compatible activities.
19. First Reading of Ordinance No. 147, 2006, Authorizing the Conveyance of a Telephone
Cable Right -of -Way Easement toQwestCoMorationonCathy Fromme Prairie Natural Area.
There is an existing telephone cable running along the north edge of Cathy Fromme Prairie
where it abuts Taft Canyon Subdivision to the north. The cable runs from the right-of-way
of South Taft Hill Road westerly just south of the northern boundary line of Cathy Fromme
Prairie approximately 2,691.07 feet to the western boundary line of that Natural Area. The
cable was installed by Qwest at some time shortly after the Second Replat of Taft Canyon
PUD was approved in March 1987, in a trench prepared for the cable by the developer(s) of
Taft Canyon Subdivision. Qwest acknowledges the cable was put in by Qwest and that
Qwest is presently using the cable for telephone service. Staff has proposed the City convey
a perpetual, nonexclusive easement for the Qwest telephone cable.
September 19, 2006
20. First Reading of Ordinance No. 148, 2006, Authorizing the Grant of a Non-exclusive
Easement and Ri t-of-Way to Platte River Power Authority for Construction and
Maintenance of a 230kV Transmission Line.
Platte River Power Authority is requesting a 75-foot wide, non-exclusive easement for a
230kV transmission line across Colina Mariposa Natural Area along the east side of Shields
Street, south of Trilby Road. Staff was aware that the Natural Areas Easement Policy does
not allow overhead power lines to be built across natural areas and has worked with Platte
River for over a year to find a solution. Platte River has offered to perform a number of
extensive mitigation projects in hopes the policy can be waived in this instance. Staff and
the Land Conservation and Stewardship Board have concluded that the alignment of the
transmission line is the only reasonable alignment and the mitigation projects offered serve
to mitigate the impacts to the natural area and surrounding open spaces.
21. First Reading of Ordinance No. 149. 2006. Avorovriatina Unanticipated Revenues in the
City's General Fund and Prior Year Reserves in the Wastewater Fund for the Purpose of
Recording the Transfer of Certain Surplus Properties from the Utilities to the General Fund
in Exchange for Certain Properties Historically Used for Utilities Purposes but Not Acquired
with Ratepayer Revenues and Approving Said Transfer.
This Ordinance exchanges properties between Utilities and other non -Utilities City purposes.
City staff has identified two properties formerly used by Utilities but no longer needed for
Utilities purposes - the remaining 25-acre portion of the Wastewater Utility's Resource
Recovery Farm and the Electric Utility's Old Power Plant Building at 430 North College
Avenue. In exchange for these properties, four properties will be transferred to Utilities. The
properties to be transferred to Utilities include three sites that are, and have for years, been
in use for Utilities purposes but were not purchased with Utilities funds initially: the Water
Treatment Plant #1 site (the area not in use as Gateway Park), the Old Waterworks property
on North Overland Trail, and the Mulberry Wastewater Treatment Plant. The fourth property
for possible transfer to Utilities is the Police Annex site, Lots 36 and 37, less the north 80
feet, of Block 32 in the City of Fort Collins. This property may be an appropriate future
location for Utilities' Customer Information Services office, when it is relocated from 330
South College Avenue. The Charter requires Utilities to reimburse other City funds for
services received, and vice -versa. The City's Real Estate Services staff has prepared value
estimates for each of the properties and, based on those estimates, Utilities will pay the
amount of $13,400, the difference in total values, to the General Fund in order to make the
exchange an even one.
22. Resolution 2006-099 Adopting the 2006 update to the Three Mile Plan for the City.
This is a review of updates to the Three -Mile Plan for the City. The Three -Mile Plan is a
policy document that is required to ensure that the City complies with the regulations of the
Colorado Revised Statutes.
***END CONSENT***
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Ordinances on Second Reading were read by title by City Clerk Krajicek.
6. Second Reading of Ordinance No. 127, 2006, Appropriating Unanticipated Grant Revenue
in the Natural Areas Fund and Authorizing the Transfer of Existing Appropriations in the
Natural Areas Fund to be Used to Gather Information Necessary for the Development of the
Soapstone Prairie Natural Area Management Plan.
Second Reading of Ordinance No. 128, 2006, Appropriating Unanticipated Grant Revenue
in the General Fund for the Operation of the Fort Collins Welcome Center.
8. Second Reading of Ordinance No. 129, 2006, Appropriating Unanticipated Revenue in the
Capital Projects Fund - Water Craft Course Capital Project to be Used for a Feasibility Study,
Design and Construction of a Water Craft Course Along a Section of the Cache La Poudre
River Near the Old Power Plant.
9. Second Reading of Ordinance No. 130, 2006, Authorizing the Appropriation of Funds for
Capital Improvements to Construct Capital Improvements at the Fort Collins -Loveland
Airport and Operating Expenses for Consulting Services Needed for a New Passenger
Facility Charge Application.
10. Second Reading of Ordinance No.131, 2006, Amending the Land Use Code Article 4 to Add
a New Rural Lands Zone District, as Division 4.1 and Rearrange Division Numbering and
to Revise Article 3 Section 3.9.2 to Allow Single Family Residential in the RUL District
Within One -Quarter Mile of Interstate Highway 25.
11. Second Reading of Ordinance No. 132, 2006, Authorizing Execution of the Amended Plat
Related to the Dedications of Public Rights -of -Way in the Amended Hersh Minor
Residential Development No. 06-S2555 for the Benefit of the City of Fort Collins and the
Natural Areas Program.
13. Second Reading of Ordinance No. 134, 2006, Vacating a Portion of Street Right -of -Way on
Oak Street Located West of College Avenue, Established as Part of the 1873 Map of the
Town of Fort Collins, for Purposes of Constructing Oak Street Plaza Park Improvements.
14. Second Reading of Ordinance No. 135, 2006, Authorizing the Conveyance of a Utility
Easement and Temporary Construction Easement for the Greeley Waterline Enhancement
Transmission Project.
15. Second Reading of Ordinance No. 136, 2006, Declaring Certain City -Acquired Property as
Timberline Road Right -Of -Way.
26. Second Reading of Ordinance No. 122, 2006, Amending Article III of Chapter 12 of the
Code of the City of Fort Collins to Conform to the Colorado Clean Indoor Air Act, and to
Clarify Certain Provisions.
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Ordinances on First Reading were read by title by City Clerk Krajicek.
16. First Reading of Ordinance No. 144, 2006, 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.
17. First Reading of Ordinance No. 145, 2006, Amending Section 17-101 of the City Code
Establishing Criteria for Discharge of a Weapon Permit.
18. First Reading of Ordinance No. 146, 2006, Authorizing the Conveyance of a Conservation
Easement on City Natural Area Property (Round Butte Ranch Phase 2) to Latimer County
and Authorizing a Related Grant Agreement with the Board of the Great Outdoors Colorado
Trust Fund.
19. First Reading of Ordinance No. 147, 2006, Authorizing the Conveyance of a Telephone
Cable Right -of -Way Easement to Qwest Corporation on Cathy Fromme Prairie Natural Area.
20. First Reading of Ordinance No. 148, 2006, Authorizing the Grant of a Non-exclusive
Easement and Right -of -Way to Platte River Power Authority for Construction and
Maintenance of a 230kV Transmission Line.
21. First Reading of Ordinance No. 149, 2006, Appropriating Unanticipated Revenues in the
City's General Fund and Prior Year Reserves in the Wastewater Fund for the Purpose of
Recording the Transfer of Certain Surplus Properties from the Utilities to the General Fund
in Exchange for Certain Properties Historically Used for Utilities Purposes but Not Acquired
with Ratepayer Revenues and Approving Said Transfer.
27. First Reading of Ordinance No. 150, 2006, Authorizing Amendments to the
Intergovernmental Agreements Between the City and Poudre School District and Thompson
School District Pertaining to the Land Dedication and In -Lieu Fee Requirements Contained
in Such Agreements.
Councilmember Manvel made a motion, seconded by Councilmember Roy, to adopt and approve
all items not withdrawn from the Consent Calendar. Yeas: Councilmembers Brown, Hutchinson,
Kastein, Manvel, Ohlson, Roy and Weitkunat. Nays: None.
THE MOTION CARRIED.
Consent Calendar Follow-up
Councilmember Kastein spoke regarding item #17 First Reading of Ordinance No. 145, 2006,
Amending Section 17-101 of the City Code Establishing Criteria for Discharge of a Weapon Permit
and asked for information prior to Second Reading regarding the grandfathering of one firearms
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business and the exclusion of other businesses. City Attorney Roy stated he would prepare
information for the Council.
Staff Reports
City Manager Atteberry introduced Stu Reeve, Energy Manager of Poudre School District; Ron
Kechter, CityofFort Collins Facilities Project Manager; Brian Dunbar, Director of Institute for Built
Environment at CSU; and Mike Spearnack, Director of Planning and Design for Poudre School
District, who recently received Colorado Energy Champions awards at the Governor's Mansion.
Councilmember Weitkunat stated Fort Collins was recognized in three categories and this showed
the community was a leader at working in partnerships to build an energy efficient community.
City Manager Atteberry reported on the Sustainable Living Fair, the receipt of a Youth Football Hub
grant in the amount of $50,000 per year for three years from the National Recreation and Parks
Association and the NFL Foundation, and aNeighborhood Services neighborhood partnership event.
Ordinance No. 122, 2006,
Amending Article III of Chapter 12 of the Code of the
City of Fort Collins to Conform to the Colorado Clean Indoor Air
Act, and to Clarify Certain Provisions. Postponed to October 17, 2006.
The following is staffs memorandum on the item.
"EXECUTIVE SUMMARY
Certain exceptions to the smoking restrictions found in the City Code are inconsistent with the
requirements of the Colorado Clean Indoor Air Act, which was enacted in 2006. Ordinance No.
122, 2006, adopted on First Reading on August 15, 2006 by a vote of 5-2 (Nays: Roy, Manvel),
eliminates those exceptions. In addition, the Ordinance amends the restriction on placement of
ashtrays in nonsmoking areas to allow ashtrays in the 20 foot exterior perimeter of a nonsmoking
area where physical constraints make placement of ashtrays difficult. The Ordinance also adds to
the City Code additional provisions regarding private nursing home rooms. In response to Council
discussion on First Reading, the Ordinance that was presented to the Council for consideration on
Second Reading on September 5th added definitions of the terms "retail tobacco business" and
"tobacco ", and outlines requirements for operation of a "retail tobacco business ". (The retail
tobacco business exception replaces the existing "retail tobacco store" exception)
The Ordinance was postponed for further consideration on September 19th, after considerable
Council discussion, and has been revised to reflect the direction received from the Council at the
meeting on September 5th, clarified by discussion with the Leadership Team.
The changes (which are marked as changes from the original second reading version of the
ordinance), are as follows:
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1. A requirement that any new retail tobacco business meet the definition of a "retail
establishment" in the Land Use Code has been added.
2. A requirement that retail tobacco businesses require proof of age from all persons entering
the business, and provide adequate staffing and training to ensure an effective system for
preventing underage persons from entering, has been added.
3. A requirement that retail tobacco businesses post a sign that persons under 18 aren't
permitted on the premises, and containing the standard surgeon general's warning regarding
smoking, has been added.
4. A provision has been added to allow an establishment in operation as of July 1, 2006, used
primarily for the sale or promotion of tobacco products to continue in operation without
enlarging or relocating as long as it meets the ventilation, certificate of occupancy, no
underage customers, and warning sign requirements by the beginning of 2007. "
City Manager Atteberry introduced the agenda item.
Carrie Daggett, Senior Assistant City Attorney, summarized the changes made to the Ordinance
since First Reading. She stated the First Reading version was written to conform the City Code to
the new Colorado Indoor Clean Air Act, which went into effect on July 1, and to codify the
administrative regulations relating to "retail tobacco stores." Council voted on August 15 to approve
the Ordinance on First Reading and asked staff to make revisions to the Ordinance to allow an
exception for "retail tobacco businesses" and to broaden that concept to some extent. When the
Ordinance was presented for Second Reading on September 5, it included an exception for retail
tobacco businesses. That version focused mainly on the revenues of the business as a defining
factor, requiring at least 92% of the revenues be derived from tobacco and tobacco consumption
related accessories. That version also prohibited the retail tobacco business from having a liquor
license or other license; prohibited minors in the establishment; and retained the independent
ventilation and physical separation requirements. After extensive discussion on September 5,
Council postponed Second Reading to this meeting and asked the Ordinance be revised based on the
September 5 discussion and discussions between the City Attorney's Office and the Leadership
Team. The revised Ordinance that was being presented included the following: the original changes
to conform to the Colorado Clean Indoor Act; language providing for a retail tobacco business
exception and clarifying that the establishment must be primarily for the retail sale or promotion of
tobacco products and accessories for off -site use and consumption; language requiring that the
business meet the Land Use Code definition for "retail establishment;" language requiring that
persons under 18 not be permitted in the establishment, requiring that establishments require proof
of age for those entering the business, requiring establishments to provide adequate staffing and
training to ensure an effective system for controlling access by minors, and requiring the posting of
signs outside of the public entrance to the business indicating that persons under 18 were not allowed
in the business and providing a standard Surgeon General's warning; and language exempting
establishments that were in operation primarily for the retail sale or promotion of tobacco products
and accessories as of July 1, 2006 and that were not operating under a liquor license or other similar
license, from the square footage and space usage requirements of the `retail establishment" definition
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in the Land Use Code and excluding them from the requirement that the products be sold primarily
for off -site use and consumption. The grandfathered businesses would be required to continue to
meet the revenue restrictions and to continue to operate without a liquor license. They would not
be allowed to expand or change location and they would be required to meet the ventilation, proof
of age and signage requirements as of the end of 2006. New businesses would need to meet the
standard definition of "retail tobacco business" in order to operate and allow smoking on the
premises. The existing businesses that met the grandfathering provision would be able to continue
to operate without meeting the Land Use Code definition and without focusing on the off -site use
and consumption of tobacco. In response to discussions with the Leadership Team with regard to
the Land Use Code definition for "retail establishments", staff prepared a revision that replaced the
reference to the Land Use Code definition and instead would set a specific definition for space and
size for retail tobacco businesses. This change was in Subsection (3) and it would replace the
reference to the Land Use Code definition with a new sentence reading: "The business shall not
exceed 5,000 square feet of gross floor area in size and no more than 40% of the business may be
utilized as a seating area lounge or other area intended to accommodate smoking."
Mayor Hutchinson stated each audience participant would have three minutes to speak.
Diedre Sullivan, Larimer County Department of Health and Environment, stated Fort Collins had
been a leader in protecting public health from exposure to secondhand smoke and keeping tobacco
out of the hands of young people. Council was in a "unique position" of being able to define a retail
tobacco business and differentiate such businesses from others that were required to protect the
public from secondhand smoke. The public health community was advocating the tightest possible
definition for a retail tobacco business that would offer equal protection for all workers, residents
and visitors from exposure to secondhand smoke and would enhance the non-smoking norm. She
asked that retail floor space for the sampling and use of tobacco products and sales for on -site use
be restricted to less than 20%; that the prohibition of licensing for the consumption of meals, drinks
or alcoholic beverages on the premises or the operation in conjunction with another business licensed
for those for purposes be kept; and that the number of employees and volunteers be restricted to
avoid workplace exposure to secondhand smoke. She asked that these provisions be applied to all
retail tobacco businesses — new and existing.
Stacy Poncelow, 620 Gilgalad Way, asked how hookah bars were allowed to exist in a smoke -free
community under the auspices of being a retail tobacco shop when the City did not recognize the
hookah bar as a tobacco shop. The businesses failed to apply for status as a private club, which was
allowed in the City Ordinance, and were now asking the County to change the rules so that they
could operate as a smoking lounge in a smoke -free community in a smoke -free state.
Kadie Lenhardt made a statement on behalf of the Board of Directors of the Health District of
Northern Larimer County as follows: "In the past several years the Health District has conducted
extensive research and analysis around the issue of secondhand smoke. Using this research and
analysis, the Board endorsed both the Fort Collins law making all places smoke -free and the newly
enacted statewide legislation — the Colorado Clean Indoor Act. The Health District considers the
adoption of smoke -free laws the best public policy approach to achieve the goal ofprotecting citizens
and workers from the well documented dangers of secondhand smoke. In light of the Board's past
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support of tobacco regulation and smoke -free laws, the Board has taken a position in support of
changes to the Fort Collins City Code that would further define a retail tobacco business and prevent
the establishment of new businesses that allow the on -site consumption of tobacco products. The
Board feels it is important to note that any kind of tobacco consumption carries significant health
risk. Ideally, for the protection of the public and bar workers in particular, all public businesses
would be prohibited from allowing the on -site consumption of tobacco. The World Health
Organization, also known as WHO, issued an advisory on water pipe smoking last year. The WHO
found that water pipes are not a safe alternative to smoking and, in fact, smokers using water pipes
during a typical one -hour session could inhale as much as 100 to 200 times the volume of smoke
inhaled during a single cigarette. The WHO suggested that water pipes and water pipe tobacco be
subjected to the same regulations as cigarettes and other tobacco products. In conclusion, we would
like to thank the Councilmembers for their hard work on this issue and we especially appreciate
Council's continued efforts to protect the health of the public. We urge the Council to adopt the
most restrictive language possible to prevent the establishment of any other retail tobacco business
which would allow on -site consumption of tobacco products."
Callie Brown, 2206 Suffolk Street, member of the student organization Creating Respect and
Educating Wellness (CREW), stated many young people believed hookah smoking was less
addictive and harmful. She asked the Council to not grandfather the existing businesses and to limit
the floor space dedicated to social consumption of tobacco.
Dan Palmer, CSU graduate student, supported the direction to post warning signs about tobacco use.
He stated most hookah consumers were aware of the health risks. He supported more competition
in the community and limiting the number of businesses was not in the best interests of consumers.
He supported grandfathering the existing businesses and allowing them to expand.
Gay Israel, 4912 Langdale Court, head of the Department of Health and Exercise Science at CSU,
spoke regarding the serious health effects of hookah smoking as determined by the World Health
Organization. He asked the Council to honor the integrity of the progressive Fort Collins smoke -free
law and the Colorado Clean Indoor Air Act.
Andrea Zelinko, former Fort Collins resident and employee of a Denver non-profit organization
doing tobacco control work, asked the Council to enact a tight definition of tobacco retailers. She
stated hookah smoking was a new and "trendy" way to introduce young adults to addictive tobacco
use. She asked for a tight definition of tobacco retailers that would prohibit the sale of all food and
beverage products, restrict allowable floor space for on -site consumption and product sampling,
restrict the amount of products purchased for on -site use, restrict the number of employees and
volunteers in the work place, and require all existing and future establishments to abide by the
standards.
Seth Anthony, address not provided, stated Fort Collins residents were individuals who made both
good and bad decisions. He stated their decisions were their own and the Council should make
decisions relating to City government. He questioned whether the Council should make it illegal to
do something in a private business that was legal in a private home. He also questioned holding
existing and future businesses to different standards. He asked the Council to avoid enacting
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government -defined norms for private behavior and that language in this ordinance relating to on -site
and off -site consumption be deleted.
Aria Khosravi, 2808 Ringneck Drive, co-owner of Narghile Nights, 621 South College Avenue,
stated his business could not afford to have any floor space restrictions. He stated the surgeon
general's warnings were placed on menus and products and his business was "up front" about health
concerns. He favored a higher fine for tobacco sales to underage consumers. Such businesses were
in operation elsewhere in Colorado and had opened since the enactment of the Colorado Clean
Indoor Air Act.
Dr. John Rennick, 3407 Pearstone Place, medical director for the Larimer Center for Mental Health,
spoke regarding the addictive nature of nicotine and the intensity of nicotine exposure through
hookah smoking.
Sarah Davis, Vice -President ofTobacco Control Programs, American Lung Association of Colorado,
stated she was also speaking on behalf of the Colorado Tobacco Education and Prevention Alliance
(CTEPA), the American Heart Association and the American Cancer Society. She stated Fort
Collins had shown progressive leadership in enacting the smoke -free ordinance. The Council had
another opportunity to set a precedent for Colorado and to ensure there was no loophole in the law
allowing for smoking lounges. The issue was protection of the public health. She asked for the
passage of strong language honoring the intent of the smoke -free law and limiting the definition of
a tobacco retailer.
Eric Levine, Air Quality Advisory Board chair, asked the Council to consider what kind of precedent
was being set if a loophole was to be created. He questioned whether the City really wanted a
"plethora" of smoking -only establishments. He asked the Council to keep the original 20% floor
space requirement.
Councilmember Manvel stated there was a controversy when businesses applied to be hookah bars
with regard to whether the businesses needed to be private clubs. He asked that staff address that
issue. Greg Byrne, CPES Director, introduced the staff person representing Felix Lee. Mike Gebo,
Neighborhood and Building Services Department, stated there were currently three tobacco
establishments in Fort Collins. Edward's Tobacco was a retail tobacco store exempt from the
smoking ordinance. Narghile Nights was a retail tobacco store business that moved into an existing
retail space (the same type of occupancy) and was awaiting a determination by the Council as to
private clubs. Algiers went into a small space as a private club exempt under the law. All three
businesses complied with the Code in effect at the time they went into business.
Councilmember Manvel stated he understood there was a controversy regarding whether these
businesses fit under the exemption for smoking establishments. His impression was that the Fort
Collins law did not envision hookah bars and smoking lounges. He asked how the two businesses
that were so different from Edward's were determined to be in the same category. Gebo stated the
two businesses sold tobacco and were therefore retail tobacco stores under the ordinance. One
business was claiming to be a private club, which was exempt from the ordinance. Byrne stated the
Building Official wrestled with the issue of whether or not to issue temporary certificates of
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occupancy and certificates of occupancy to these businesses. The regulations were in flux during
this time period as a result of the new State law and the Council's consideration of bringing the local
ordinance into compliance with the State law. The Building Official made the final issuance of
certificates of occupancy for the hookah lounges contingent on the Council's action. The ventilation
requirements were met before issuance of a temporary certificate of occupancy.
Councilmember Marvel asked if the businesses understood there was some controversy and that the
laws were in flux. Byrne replied in the affirmative "without question." City Attorney Roy stated
at some point, one or more of the establishments did not meet the private club requirement and the
discussion then focused on the retail tobacco store exception and an interpretation of Council's intent
when it adopted the exception. The question was whether this business and similar establishments
could be exempted from the smoking ordinance as a retail tobacco store. This brought forth the issue
of how much smoking the Council intended to allow to accommodate retail tobacco stores i.e.,
smoking for the purpose of sampling products for sale or smoking for enjoyment of the product on -
site in a lounge. The discussion then turned to what kinds of criteria could be developed to
distinguish a lounge from a retail tobacco store.
Councilmember Roy asked staff to outline the outreach that was done prior to First Reading. Beth
Sowder, Neighborhood Services Manager, stated staff believed that the staff recommendation on
First Reading was very restrictive and that Algiers and Narghile Nights would be the primary
concerned interests. She stated after First Reading staff realized that the issue have broader interest.
Mayor Hutchinson stated the Council was sensitive to the State law and asked if the Council would
be "creating a loophole" in the law if the ordinance was adopted. City Attorney Roy stated a
loophole would not be created because the State law allowed for local governments to have laws in
place that was the equivalent or more restrictive. The ordinance that was presented was the
equivalent if it allowed existing and future hookah lounges. The prevailing interpretation of the
State law was that hookah lounges fell within the retail tobacco business exception. If the existing
businesses were grandfathered and new ones were not allowed or ifmore restrictive restrictions were
imposed, the City law would be more restrictive than the State law.
Councilmember Brown asked if up to 5,000 square feet would be allowed under the ordinance.
Carrie Daggett, Senior Assistant City Attorney, stated the change relating to 5,000 square feet would
apply to new businesses and would not be applicable to the grandfathered businesses as long as they
remained covered by the grandfathering.
Councilmember Brown asked if the grandfathered businesses would be allowed to expand. Daggett
stated they would not be allowed to expand in size or change location. A room could be added if it
did not expand the size of the establishment. She stated language could be added to specify whether
addition of a room would be an allowed exception.
Councilmember Brown asked if there were other retail businesses that were limited in size and
location. Daggett stated the ordinance would not limit the size of the business and specified that if
the business wanted to rely on the exception as a grandfathered business, the business could not
change. City Attorney Roy stated the Land Use Code provided for nonconforming uses that could
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continue even though they did not comply with new zoning laws. The Code allowed nonconforming
uses to expand up to a certain percentage. This ordinance would be stricter in that it would prohibit
expansion if the business was to continue as a grandfathered business.
Councilmember Kastein asked for clarification regarding the version of the ordinance that was being
presented for consideration. City Attorney Roy stated the staff recommendation was reflected in the
revised version of the ordinance that was in the Council packet.
Councilmember Kastein asked for clarification that this was the version that limited the floor space
to 5,000 square feet and 40% for a lounge area. City Attorney Roy replied in the affirmative.
Councilmember Kastein asked if the earlier version would have provided for 25,000 square feet.
City Attorney Roy replied in the affirmative and stated the earlier version incorporated the definition
of a retail business under the Land Use Code, which allowed a maximum of 25,000 square feet.
Councilmember Kastein asked if the broad definition would have prohibited new businesses. City
Attorney Roy stated the grandfathering was in both versions of the ordinance. This provision had
to do with the size limitation for new businesses. The earlier version would have allowed 25,000
square feet and this version would be more limiting. The Land Use Code version would have
required at least 60% must be devoted to the sale or rental of products or to services incidental to the
sale or rental of the products. There were questions relating to whether activities in a lounge could
be included under incidental services. The language evolved into this version that clearly imposed
a 40% limitation on the amount of square footage that could be devoted to a lounge.
Councilmember Kastein asked what language in the new ordinance would not allow the three
businesses to continue if there was no grandfathering provision. City Attorney Roy stated there was
language talking about "off -site use and consumption" and a size limitation for the area devoted to
the language. Those two restrictions would most likely preclude future hookah lounges. Daggett
stated there would also be a provision that would give existing businesses until the end of the
calendar year to make whatever physical changes they might need to do to meet the independent
ventilation requirement, to add signage, and to adjust operations to prevent minors from entering the
premises.
Councilmember Kastein asked if the warning label had anything about smoke being harmful to
pregnant women. Daggett replied in the affirmative and read the surgeon general's warning that
smoking "may complicate pregnancy."
Councilmember Kastein stated many of the speakers urged the Council not to craft anything specific
to hookah bars. He stated he did not see anything in the ordinance that singled out that use. City
Attorney Roy agreed with that statement.
Councilmember Ohlson stated this issue was complicated by the existing businesses. He stated no
retail business would have 40% of its business unrelated to actual selling of products. He asked if
the two hookah businesses would now be called "retail." Daggett replied in the affirmative.
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September 19, 2006
Councilmember Ohlson stated no other retail business would have up to 40% of the business for
something other than selling the product. Byrne stated the current Land Use Code definition of a
"retail establishment" was that 60% of the floor area was used. He stated 40% was a "more tailored
definition" for this particular use.
Councilmember Ohlson asked if this was therefore somewhat in line with how all retail
establishments were defined. Byrne replied in the affirmative.
Councilmember Weitkunat made amotion, seconded by Councilmember Brown, to adopt Ordinance
No. 122, 2006 on Second Reading (revised version).
Councilmember Kastein stated he did not like the fact the three existing businesses would be "frozen
in time" and there would be a "no compete clause" established. There would be a "no compete
clause" on behalf of those three businesses as a "function" relative to any other future
establishments. He had hoped that the ordinance would describe and aim for the "status quo" as the
standard that would be allowed. He would like future businesses. He stated "secondhand smoke"
was the "convincing argument" for him for adoption of the smoke -free ordinance. This discussion
was about "firsthand smoke" i.e., smoking establishments where you would go to buy and smoke
tobacco, which was legal. He expressed a concern with legislation that would affect personal
freedoms when there was no danger to anyone else.
Mayor Hutchinson stated the discussion had been to preserve the status quo for hookah lounges
without precluding new businesses. The ordinance had been "carefully crafted" to "preclude the
proliferation of hookah bars" without prohibiting businesses such as Edward's Tobacco.
Councilmember Kastein stated there were some limitations that allowed for a narrow definition of
tobacco establishments to continue. The fact that the three existing businesses would need to be
grandfathered was "proof' that what was crafted for future places of business were tighter
restrictions than for the existing businesses. He was hoping there would be no need for a grandfather
clause and that the standards would be broad enough to "set a common denominator" for the three
businesses and any future businesses like them. He questioned whether other Councilmembers
supported his viewpoint. City Attorney Roy stated, if Councilmember Kastein's question was
whether the ordinance would distinguish between hookah lounges and smoking lounges for other
kinds of tobacco, the answer was no. The ordinance would apply to existing and future retail
tobacco businesses that would allow smoking and limit the size of the smoking areas for both.
Councilmember Kastein was posing a question as to whether Council should adopt a law that would
use the largest existing hookah lounge as the "model" for future businesses, in which case there
would be no need for grandfathering.
Councilmember Manvel stated this was a difficult issue and Councilmember Kastein raised a good
point about allowing people to do legal things and to operate without undue regulation. There was
also the argument that there was a public health issue i.e., relatively young citizens being presented
with an opportunity to begin smoking. There were two opposing "goods" to be weighed. He
believed some on Council were not interested in minimizing the right to use tobacco or to sell
tobacco but to minimize the right to "promote the use of tobacco." Hookah bars, in fact, promoted
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the use of tobacco. He stated Councilmember Kastein raised the issue that the law as written had
two different sets of rules for existing businesses and future businesses. The main differences in the
two sets of rules related to retail sales mainly for off -site use and consumption and the 40%
maximum for a smoking area. His impression was that the first rule appeared to be no problem for
the existing businesses because the majority of their sales were for off -site use and consumption.
The problem was with the 40% limitation that would be placed on new businesses and not placed
on existing businesses. He would argue that 40% was not restrictive enough and that both of the
existing businesses could continue operations with the 40% limitation. If the Council wanted to
prevent the proliferation of such places in order to discourage the "promotion of tobacco", he would
be offering some amendments to the ordinance after hearing additional discussion.
Councilmember Ohlson asked if existing businesses would have to follow the 60/40 rule. City
Attorney Roy stated they would be exempt as long as the continued to meet the other conditions.
Councilmember Weitkunat stated the City had to come up with a solution that would meet the
State's conditions and address what was happening in the community. This would be where the
grandfathering would come in i.e., there were three existing specialized businesses that would be
grandfathered. Grandfathering was a method to take care of existing businesses and require them
to meet the new requirements when they changed in the future. She was comfortable with the
revised version of the ordinance to address existing businesses and the State law.
Councilmember Manvel made a motion, seconded by Councilmember Ohlson, to amend the
requirement for a 40% limit for a seating lounge or other area intended to accommodate smoking
to a limit of one-third of the area.
Councilmember Manvel stated he suggested less than 40% because he believed 40% was a
"workable business model." He hoped one-third was not. He believed a majority of the Council did
not want to encourage places that would be primarily lounge types of activities. A limitation on the
floor area would be the best way to distinguish between places that were mostly for retail sales and
lounging.
The vote on the motion to amend was as follows: Yeas: Councilmembers Hutchinson, Manvel,
Ohlson, Roy and Weitkunat. Nays: Councilmembers Brown and Kastein.
THE MOTION TO AMEND CARRIED.
Councilmember Manvel made a motion, seconded by Councilmember Ohlson, to amend Section 1
of the Ordinance to change the percentage for non -tobacco consumption or accessories from 8% to
0% and to specify that the business could only sell tobacco products or tobacco consumption
accessories.
Councilmember Ohlson stated he would second the motion to hear the discussion.
Councilmember Manvel stated this was another way to "draw a line" between a lounge and a retail
tobacco business. He questioned how the 8% requirement would be enforced and stated the 0%
September 19, 2006
would be much easier to enforce. The service of water or tea would be allowed but that revenue
could not be generated by selling it.
Councilmember Kastein asked where the 8% figure came from. Daggett stated it came from
extensive staff discussions about the administrative regulations that would be recommended to
define the term "retail tobacco store." The 8% figure was aimed at making non -tobacco
consumption or accessories "incidental."
Councilmember Kastein asked about the impact of changing the percentage to 0%. Daggett stated
staff believed there needed to be some room for the sale of other types of products.
Councilmember Manvel asked what types of other non -tobacco goods would be sold in a hookah bar
or retail establishment such as Edward's Pipe and Tobacco. Sowder stated incidental products would
include tea, gum, etc.
Councilmember Manvel stated the items mentioned were connected with the lounge function rather
than the retail function of the store.
Councilmember Weitkunat stated 8% was an "inconsequential" amount and it did not really matter
what the incidental sales would be. She would not support the motion to amend.
Councilmember Manvel questioned how the 8% would be verified. Sowder stated staff would have
to review the books of the business and that 0% would be easier to enforce.
Councilmember Weitkunat stated she did not believe this was a real issue
Councilmember Manvel stated this would be another good way to draw the line between retail
tobacco stores and lounges and that City resources to audit the 8% in incidental sales was limited.
Mayor Hutchinson stated 8% was reasonable, that 0% might be too limiting, and he would not
support the motion to amend.
The vote on the motion to amend was as follows: Yeas: Councilmembers Manvel, Roy and Ohlson.
Nays: Councilmembers Brown, Hutchinson, Kastein and Weitkunat.
THE MOTION TO AMEND FAILED TO PASS.
Councilmember Kastein made a motion, seconded by Councilmember Brown, to postpone
Ordinance No. 122, 2006 for two weeks for the gathering of data relating to existing businesses and
development of a definition that would avoid the need to grandfather the existing businesses.
Councilmember Kastein stated regulations should apply equally to existing and future businesses.
The City had a "limited role" in trying to regulate firsthand smoke. He would like to see a "better
standard."
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Councilmember Ohlson stated he would support the motion to postpone to allow more time for work
to be done on the Ordinance. He expressed concern about the amount of time being spent on this
issue when there were more pressing issues. He believed the hookah lounges were different than the
tobacco shops and he would like a "clean" ordinance so that he could vote against the hookah part
of the ordinance.
City Manager Atteber y asked for clarification of Council's expectations.
Councilmember Kastein stated he would like to be able to strike from Section 2(4) so that there
would be no grandfathering. He would like a square footage requirement that would be "good" for
existing and future businesses.
City Attorney Roy stated Councilmember Ohlson's comments pointed out a different issue. He
asked if there was Council support for coming up with a definition for hookah bars that would be
separate from retail tobacco stores.
Councilmember Ohlson stated he was not suggesting any changes to the ordinance and that his
comments were "editorializing."
City Attorney Roy stated two weeks may not be enough time because of the agenda submittal
deadlines.
Councilmember Manvel stated he did not believe a majority of the Council supported
Councilmember Kastein's goal of ensuring that existing and future businesses could thrive under the
same rules. He believed the majority did not want a proliferation of hookah bars and retail tobacco
stores with large smoking lounges. The existing businesses could "survive and even thrive" under
the existing rules. A new set of rules that would not restrict them would allow and encourage the
establishment of numerous new hookah lounges. Allowing the grandfathering of existing businesses
and placing restrictions on new businesses would discourage the proliferation of hookah bars, which
were not visualized in the previous ordinance. He believed the majority of the Council did not want
to "liberalize" the existing ordinance. He would not support the motion to postpone because he did
not believe it was possible to come back with the ordinance described by Councilmember Kastein
because it would be in contradiction to the majority viewpoint.
Councilmember Roy stated this issue was taking too long to decide and he would not support the
motion to postpone.
Councilmember Brown stated he would support the motion to postpone. He stated more work was
needed if the intent was to legislate personal freedoms.
Councilmember Weitkunat stated the two existing hookah lounges could continue to operate with
the proposed floor space. She stated it was reasonable to grandfather the existing businesses and that
she would not support "prolonging" this matter.
Councilmember Kastein stated he did not support "crafting a monopoly" for existing businesses
through grandfathering.
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Councilmember Ohlson supported taking time to "get it right" and stated he would support the
motion to postpone. He asked if an ordinance was brought back to remove the grandfathering if the
square footage would be one-third. He questioned whether the two existing businesses would
survive with that requirement. City Attorney Roy stated he understood that the Council wanted staff
to look at criteria that would accommodate existing businesses and be reasonable for future
businesses.
Councilmember Kastein stated his intent was to look again at the criteria. He wanted to find criteria
that would work for existing and new businesses.
Councilmember Ohlson asked if the existing businesses could comment on the amendments. City
Attorney Roy stated the Mayor could allow such input.
Mayor Hutchinson asked the Council if input was desired. The consensus was to allow input.
Aria Khosravi, co-owner of Narghile Nights, 621 South College Avenue, stated the reduced square
footage would be very detrimental to his business. Incidental sales consisted of water, tea and soft
drinks. Space was needed for the business to succeed.
Charles Klamm, co-owner of Algiers, 120 1/2 West Laurel Street, stated space limitations would
limit his business model. His business allowed people to try hookah tobacco and to buy it. He
would like to expand his business and he did not have an issue with limits on sales of incidental
goods.
Councilmember Ohlson noted he made a "mistake" in asking for input from the businesses and not
from other interested parties.
Councilmember Roy stated he would prefer that input come from all sides of the issue. He stated
this was a complicated issue because the City organization "created an opportunity" for these
businesses to open. He stated the Council may have decided not to allow those businesses to start
up. He stated he was willing to grandfather the existing businesses and to discourage future
businesses and that he did not favor continuing work on the ordinance.
Councilmember Manvel believed a majority wanted to allow the existing stores to continue and to
discourage a proliferation of new stores. He stated the discussion should be wrapped up and a
decision made.
Councilmember Weitkunat stated she did not understand Councilmember Kastein's argument that
this would create a monopoly for existing businesses. Existing businesses would be allowed to
continue and new businesses would be allowed as long as they met the requirements. She wanted
to move forward with the decision.
Mayor Hutchinson supported the motion to postpone. He stated the motion was to postpone for four
weeks.
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City Attorney Roy asked if staff was to bring back two options: this version and an option that
Councilmember Kastein was requesting.
Mayor Hutchinson stated that would be useful.
Councilmember Ohlson stated bringing back two choices would be a good idea.
The vote on the motion to postpone was as follows: Yeas: Councilmembers Brown, Hutchinson,
Kastein and Ohlson. Nays: Councilmembers Manvel, Roy and Weitkunat.
THE MOTION CARRIED.
(**Secretary's Note: The Council took a recess at this point.)
Ordinance No. 150, 2006,
Authorizing Amendments to the Intergovernmental Agreements
Between the City and Poudre School District and Thompson School
District Pertaining to the Land Dedication and In -Lieu Fee Requirements
Contained in Such Agreements. Adopted as Amended on First Reading.
The following is staff s memorandum on the item.
"FINANCIAL IMPACT
The proposed ordinance will not have a financial impact on the City ofFort Collins because the fees
will be collected on behalf of Poudre and Thompson School Districts. Revenues from the fees will
pass through City accounts and will not affect City revenue limits under Article X, Section 20.
"EXECUTIVE SUMMARY
Since 1998, the City of Fort Collins has collected a fee -in -lieu of land dedication for both Poudre
School District and Thompson School District. These fees allow a residential developer to pay a
school site fee to the School Districts rather than to dedicate a parcel of land to the District for
development of future schools. The ability of the school districts to require land dedication is
provided under State of Colorado Statute.
The last time the amount of these fees was adjusted was in 2001. This ordinance will change the
amount of the fees for each district and also modifies the fee structure to reduce the cost in payments
for larger, multi family developments. The school districts requested a substantial increase to the
fees in reaction to substantial increases in the cost ofsecuring appropriate school sites.
BACKGROUND
In April, 1998, the City of Fort Collins and Thompson and Poudre School Districts entered into
Intergovernmental Agreements regarding land dedication for new developments, including a
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provision for fees -in -lieu of land dedication. This system of land dedication and fees -in -lieu of
dedication has been in place for eight years, and is now in need of review. The school districts have
asked that the amount of the fees be increased to reflect both the increasing cost of land and revised
school site standards. The Districts have also asked to modify the structure of the fees to create fee
categories for one to four residential units and five or more residential units.
Fees are based on a number of factors including school site size, student population projections,
enrollment capacities ofeach type ofschool (elementary, junior high and high schools), and the cost
of developed land within the school district. While the same factors are included for both Poudre
and Thompson Districts, the resulting fee calculations are different because each of the input factors
are different between the districts. Site sizes and enrollment capacities are set by School District
policy and the cost of developed land is somewhat lower within the Thompson School District
boundaries than in the Poudre School District boundaries.
The effect of the proposed change in per dwelling unit costs would be as follows:
Poudre School District:
Fee per dwelling unit:
1-4 attached dwelling units
5 or more attached dwelling units
Thompson School District
Fee per dwelling unit:
1-4 attached dwelling units
S or more attached dwelling units
Current Fee 2007 Fee
$763 $1,800
$763 $ 900
Current Fee 2007 Fee
$688 $1,342
$688 $946
The City's Intergovernmental Agreements with Poudre School District and Thompson School
District allow for periodic updates to the fees and land dedication requirements. The agreements
also require that the City conduct a public hearing prior to any changes in the fee or land
requirement. Each of the School Boards has reviewed its methodology for this program and
requested that the City Council approve these revisions. The detailed methodology for calculating
the fees are provided in Exhibits A and B of the Ordinance.
The increases to the fees are substantial and reflect the significant growth in land costs and the cost
of infrastructure and construction of utilities over the past f ve years. Both School Districts have
acknowledged that such a significant increase in fees in not desirable, both because of the impact
on builders who need predictable costs and the loss ofrevenue to the School Districts forfailing to
capture the increased cost of acquiring school sites. Both districts have committed to updating the
fees on a more regular basis in the future and to using an index of construction costs to make fee
increases more predictable.
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COMMUNITY INPUT:
Over the past several months, the School Districts have worked with the Homebuilders Association
(HBA) to review the proposed fee structure and seek opportunities to minimize the impact of a
substantial fee increase on residential builders within Larimer County. Issues with the fee have been
raised by the HBA as the school districts have sought to increase the fees in Fort Collins, Loveland,
and Larimer County and to institute the fee for the first time in the Town of Wellington. The HBA
opposes thefeesfor several reasons, including its beliefthat thefees are calculated inappropriately,
that the school districts have other school sites in their inventory that they should consider selling
before assessing a fee -in -lieu of future land dedications and that the size of school sites is
inappropriate. A detailed description of the HBA's concerns is included in Attachment 1.
Poudre and Thompson School Districts have both worked to address the concerns ofthe HBA. They
have reviewed the methodology used for developing the fees and outlined the authority that their
respective elected School Boards have regarding policies for school site sizes and class sizes.
Poudre School District has offered to phase -in its fee increase over twelve months, with an increase
to $1,200 effective for the next year, and the final increase to $1,800 a year later. The HBA stated
it couldn't support an increase to the $1,800 level, even with a phased in approach, therefore PSD
is asking City Council to approve the fee increase to $1,800 effective 90 days after the adoption of
the IGA amendments (January 1, 2007).
Written responses to the specific concerns of the HBA from both Poudre and Thompson School
Districts are included as Attachment 2 and 3.
In addition to the Districts'work with the Homebuilders Association, Thompson School District staff
met with several of the major developers that are building within the District boundaries to develop
cost estimates for land. These discussions guided their calculation of the cost offuture school site
acquisitions. Both Districts have alsopresented theproposed amendments to their respective School
Boards at a public meeting and have received Board approval for the changes to the Payment -in -
Lieu of Land dedication fee schedule.
Thompson School District has encouraged a member of the HBA to volunteer to participate on its
existing community task force which is charged with reviewing the districts methodologies and
calculations so that the HBA can have input on this issue in future years. "
City Manager Atteberry stated the issue had been delayed to allow time for staff to work with the
Homebuilders Association. He stated there was still disagreement on some points. Staff did not
have expertise regarding the amount or timing of the fee as did the School District.
Ann Turnquist, Policy and Project Manager, introduced Poudre School District representatives Ed
Holder, Construction Manager, and Jim Sarchet, Assistant Superintendent, and Thompson School
District representative Kate Browne, Planning Services. She stated these individuals would be
available to answer questions about fees and School District policies. These fees had been in place
since 1998 and the City collected the fees on behalf of both School Districts. The Land Use Code
allowed the City to require land dedications for school sites through the development review process.
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In accordance with Intergovernmental Agreements, the City was collecting a fee in lieu of those land
dedications. The fees had not been updated since 2001. A "fairly substantial" increase was being
proposed because the School Districts had not requested an increase since 2001. Collecting a fee
was preferred over taking land dedications for both School Districts because the land dedications
would be small tracts of land, dispersed and not well thought out land use patterns. The School
Districts preferred to capture the amount via a per household fee. As Fort Collins moved more
toward in -fill and redevelopment the fees would be captured for smaller developments that could not
provide larger land dedications. The fee was easier for the City to administer than the land
dedication process and it was easier for the School Districts to receive the fee instead of the land
dedications. The fees allowed the School Districts to acquire the most appropriate sites for school
needs at a lower cost prior to development. She compared City impact fees with fees in lieu of land
dedication for the School Districts. The School District fees only covered the cost of land for new
school sites and the School Districts' mill levies covered the cost of new buildings. This was a pass -
through fee to collected by the City to assist the School Districts. Staff was recommending
continued participation in the Intergovernmental Agreements with the School Districts to support
well -sited schools, to help the School Districts purchase appropriate school sites in appropriate
locations, to make administration easier for the City, and to continue cooperative efforts with the
School Districts. Staff believed the School Districts' calculation of the fees was "rational." The fee
calculations were based on student yields (the average number of students per new household), the
site size standards for schools adopted by the School Boards, and the developed land value which
had increased due to higher land costs and included the cost of raw land and infrastructure costs for
a school facility. Poudre School District was requesting that its fee be increased in the City of Fort
Collins to $1,800 per dwelling unit effective January 1. This would be the same fee as it would be
in unincorporated Latimer County if approved by the County. Thompson School District was
requesting an increase in the fee to $1,382 per dwelling unit effective January 1. The City of
Loveland had already adopted this fee increase.
Michelle Jacobs, Director of Community Affairs for the Homebuilders Association of Northern
Colorado, read a statement from the Association. She stated there had been lengthy discussions on
this issue and Latimer County had not voted on the fee in the County and the Town of Wellington
adopted a lower fee with a phase -in. The proposed $1,800 fee was "arbitrary and capricious" and
asked the Council to reconsider such a large increase. The fee increased the cost of homes and the
fee increase would not "bolster" City revenue because the number of permits would decline. The
School District could sell unused land to generate revenue in place of this fee. She suggested the fee
be no more than $750 per single-family unit for the period of this Intergovernmental Agreements and
stated the Council needed to recognize that the usual method of funding was no longer viable due
to the decline in the housing market.
Councilmember Ohlson asked if Latimer County paid the equivalent impact fee for housing units
and if the School District had pressed the County for such a fee. Kate Browne, Thompson School
District, stated all jurisdictions were asked at the same time to increase the fee to panty. Prior to this
change, all of the jurisdictions served by the School District were charging the same fee. Paritywas
important and the fee should reflect the School District's "real costs." The fee was on the County's
agenda in two weeks.
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Councilmember Ohlson asked if Larimer County was currently collecting a fee. Ms. Browne replied
in the affirmative and stated the fee collected was the same for each jurisdiction.
Councilmember Ohlson stated the Council material indicated Poudre School District had offered to
phase -in its fee increase over 12 months, with an increase to $1,200 effective the next year and the
final fee increase a year later. He asked if the School Districts were still recommending the fee
increase without a phase -in. One of the representatives of the Poudre School District stated the
Poudre School District was recommending $1,800 based on its calculations and the School Board
wanted to get to that fee as soon as possible, although it realized that this was a significant increase.
The Board discussed the phase -in that had been described.
Councilmember Ohlson stated he would support the phase -in because an increase should have come
to the Council sooner and this increase was "sticker shock." He asked why this was not brought to
the Council at least every two years, noting that the agenda material indicated that this would happen
now. Ms. Browne stated the Thompson School District "let it slide" because nobody wanted to open
the "Pandora's Box" of the significantly higher fee. She stated the Thompson School District fee
would be tied to an annual report so that increases would now be "minor." She stated the developers
had asked that the fee be adjusted more frequently to make it easier for planning and budgeting.
Councilmember Ohlson asked if Poudre School District also had an "honest" answer. One of the
representatives of the Poudre School District stated this should have been brought back to the
Council sooner and that the intent was now to bring it forward every two years.
Councilmember Weitkunat asked if this was an Intergovernmental Agreement between the two
School Districts. Tumquist stated there were two Intergovernmental Agreements.
Councilmember Weitkunat asked for clarification that there would still be two Intergovernmental
Agreements. Tumquist stated the Ordinance would amend both of the agreements. City Attorney
Roy stated that was correct.
Councilmember Weitkunat asked if one Ordinance related to both agreements. City Attorney Roy
stated each agreement had an Exhibit A and B and that there was a Code section that imposed the
fee. He stated this would not amend the Code and that it would amend each of the agreements by
changing the two Exhibits to each agreement.
Councilmember Weitkunat asked if amendments could be made to Exhibits A and B for each of the
agreements. City Attorney Roy replied in the affirmative.
Councilmember Weitkunat stated it was difficult to look at the two fees in one item. She asked why
there was a fee for the Thompson School District. Ms. Browne stated the Thompson School District
served the south end of the City.
Councilmember Weitkunat asked if the fee would apply to all new houses in Fort Collins. Tumquist
stated the fee imposition depended on which School District the new houses were in.
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September 19, 2006
Councilmember Brown noted the "discrepancy" in the fees requested by the two School Districts.
He asked why a Poudre School District school site standard was for 80 acres while the Thompson
School District school site standard was for 45 acres. One of the representatives of the Poudre
School District stated was based on a review that was done just prior to the 2000 bond election and
the size of the most recent high school (Fossil Ridge at 90 acres). He stated the site size allowed for
stormwater retention and athletic fields. He stated Poudre School District schools averaged about
1,800 students and that the high schools were slightly larger than the schools built in the Thompson
School District.
Councilmember Brown asked ifthe there was a legal requirement for Poudre School District schools
to be that size. Ms. Browne stated the School Boards were responsible for setting the School District
policies.
Councilmember Brown asked if the size of schools would be affected by a City decision for a lower
fee than the one requested. Ms. Browne stated this would impact the Intergovernmental Agreement.
She stated the School Board set the policy and that there was a mathematical equation used to set
the fee. She stated if the Council chose to "set its own fee" the Intergovernmental Agreement would
be nullified. City Attorney Roy stated the schedules were modified by the Intergovernmental
Agreement "as necessary." He asked if Ms. Browne was saying that if the Council did not agree
with the School District's recommendation, then this would "violate the agreement." Ms. Browne
stated this was how the School Board read the agreement. The agreement provided that the School
Board would establish the yield and the school and site size. The agreement pertained to whether
or not the City would collect the fee on behalf of the School District. City Attorney Roy stated there
might be a difference of opinion between the School Districts legal counsel and his office as to
whether the Council's decision not to increase the fee as requested would violate the agreement. In
his opinion it would not. The agreement provided for a modification of the Exhibits only upon the
agreement of the School District and the City. One of the representatives of the Poudre School
District stated a lower fee would potentially delay site acquisition and the School District would
probably not modify the site size being purchased. The site would be purchased when the funds
were available. City Manager Atteberry stated if the Council adopted a lower fee, the School
Districts would need to change their site size standard and purchase smaller school sites. The School
Board believed that 80 acres was the appropriate school size. If the School District wanted to
continue the size standard then a higher fee would need to be collected at some point to make up for
the "deficit" over time. The cost was "fixed" unless the standard was changed. He stated he had
lengthy conversations with the Poudre School District about this issue and had not had any
conversations with the Thompson School District.
Councilmember Manvel stated the "logic of the formula" for the calculation of fees made sense to
him. He asked what kind of support the proposal had from each of the School Boards. Jim Sarchet,
Poudre School District, stated all seven members of the School Board were "strongly" in support of
the proposal. Ms. Browne stated a majority of the Thompson School District Board were in favor
of the proposal. The Board expressed concern about the "jump" and the impact on low income
families. Ed Holder, Poudre School District, stated the District wanted a consistent fee for all cities
and towns in the School District.
September 19, 2006
Councilmember Manvel asked for confirmation that the Loveland City Council had already approved
the fee. Ms. Browne replied in the affirmative.
Councilmember Kastein asked if the Poudre School Board took formal action on the proposal. One
of the representatives of the Poudre School District replied in the affirmative.
Councilmember Kastein stated he would like to see the record of the School Board vote prior to
Second Reading of the Ordinance. It was difficult to determine the Council's "role" in this matter.
The Council always needed to look at what a maximum fee could be and justify the case for an
increased fee by showing that costs were being controlled. He asked if the School Board had looked
at the cost control "side of the equation." One of the representatives of the Poudre School District
stated some of the costs were difficult to control. The per acre cost went up considerably in the five-
year period and this was outside of the School District's control, as was the student yield.
Councilmember Kastein asked if the public had an opportunity to address each of the School Boards
on this topic. The School District representatives replied in the affirmative.
Councilmember Brown stated he had heard comments from builders in his District (southeast) that
there was no guarantee that a school would be built if the fee was paid. He stated he understood that
the School District could not afford to staff the schools they already had and that monies were now
being sent to Timnath and Wellington instead of Fort Collins. One of the representatives of Poudre
School District stated a school site had been dedicated in Timnath and there was a plan to build an
elementary school that would open in 2008. Fees had been collected to purchase sites for elementary
and high schools. The southeast area of the City had "benefitted the most" from the sites purchased.
Ms. Browne stated the School District tracked the fee by "high school feeder group." She stated
Thompson School District collected fees in Berthoud that might not be spent in Loveland or Fort
Collins and that fees were collected in Fort Collins that could only go into the Loveland High School
"feeder group" because that was the school that served neighborhoods on the south side of Fort
Collins. The District worked hard to get elementary school sites through dedication because it took
a smaller development to generate the equivalent number of acreage. The District had to purchase
middle school and high school sites and the District did purchase a 98-acre site between Loveland
and Fort Collins to serve the growth of north Loveland and south Fort Collins. She stated 73 of the
98 acres would be usable for a school site and this was about the last available site in that area.
Councilmember Weitkunat stated this item was an Intergovernmental Agreement authorized through
statute. This was a "mutual agreement" between the School Districts and the City that followed
Colorado Constitution and statute governing relationships between entities. The task for Council
was not to change the Intergovernmental Agreement but to "come to an understanding about the fee
in lieu of land dedication." According to the Intergovernmental Agreement, the process was that the
School District would do the planning standards. There was agreement that the City would collect
dollars for schools. The difficulty was that the agreement provided that the fees would be adjusted
annually and there must be a "huge" increase because of the delay in the adjustment. She was
interested in "making this equitable" to City residents. The basic question was what would be the
"least painful" and, in fairness to all parties, the adjustment could not be made in "huge chunks."
She would like the Council to consider phasing in the fee. This would not change the
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Intergovernmental Agreement and if Council had problems with the IGA, that should be looked at
separately at another time. The School District had indicated it might be amenable to a two-year
phase -in with $1,200 in the first year and $1,800 in the second year. She offered this as a starting
point for Council consideration.
Councilmember Ohlson stated he supported "rational nexus impact fees" and he did not realize that
"land dedication fee" included bringing the utilities to the location. Ms. Browne stated it had been
treated as including the infrastructure because, until there were utilities to the site, the property could
not be used as a school site. When developers dedicated sites they were required to stub utilities to
the site and do the overlot grading so the site was ready for a school to be built.
Councilmember Ohlson stated he was surprised to learn that land dedication meant "developed"
land. The language should be refined in the future to more accurately address the developed land
idea. When the size and number of students were compared for Poudre and St. Wain schools, the
student ratio per acre was not that different.
Councilmember Manvel stated the two School Districts had different policies and standards and the
Council should not be involved in setting those.
Councilmember Ohlson stated he did not want the fee to be more than the "rational nexus." He
questioned what would happen if more money was collected than would be needed for the developed
sites. City Attorney Roy stated the agreements with both School Districts provided that "any in lieu
payments which have not been used for the purposes of school site acquisition, expansion or
development or for capital facilities within 10 years of the date of collection shall be refunded ...."
Councilmember Ohlson asked who would receive the refund. Ms. Browne stated it would be
refunded to whomever actually paid the fee.
Councilmember Ohlson asked if both School Districts were confident the monies were spent as
designated and not in any other way. Ms. Browne replied in the affirmative. City Attorney Roy
stated the agreements provided that refunds would go back to the persons shown by the records at
the Assessors' Offices to be the current owners of the property subject to the payment.
Mayor Hutchinson stated this was a "horrendous impact" and that he understood how staff turnovers
could result in delays in fee updates. Recent City fee increases were phased in over a three-year
period to alleviate the impact of the "huge increase." He asked if the School Districts would be
amenable to phasing in the fees. One representative of the Poudre School District stated the School
Board had discussed a phase -in with a $1,200 fee for one year and the $1,800 fee in the second year
and the School Board was open to that.
Mayor Hutchinson asked if there was a possibility for phasing in the fees over more than one year.
One representative of the Poudre School District stated the School District would "always bebehind"
if land prices continued to escalate. He would need to talk to the School Board about a longer phase -
in period.
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Councilmember Manvel stated the fees had been smaller than they should have been for the last few
years. There was a problem with having the fees continue to be smaller than they should be for
several more years. The $600 difference in the $1,200 and $1,800 fees was small compared with the
price of a house.
Councilmember Weitkunat asked about the procedure to amend the Ordinance. City Attorney Roy
suggested a motion for adoption of the Ordinance with direction to bring back amendments on
Second Reading to the Exhibits for Poudre School District to be modified to reflect a phased -in
increase.
Councilmember Weitkunat made a motion, seconded by Councilmember Roy, to adopt Ordinance
No. 150, 2006 on First Reading and to direct that amendments be brought back on Second Reading
to the Exhibits for the Poudre School District agreement to reflect a phased -in fee increase of $1,200
in the first year and $1,800 in the second year.
Councilmember Manvel argued against the phased -in fees because not charging the appropriate fees
would result in the deficit having to be made up by everyone in the Poudre School District. He
stated he would prefer to have the fee set at $1,800 for Poudre School District.
Councilmember Weitkunat stated there was no fee increase for five years and this was not the City's
problem. The Council must be responsible to the City residents and there had been other fee
increases for City residents. The fees needed to be adjusted more frequently to avoid large increases.
Councilmember Roy agreed with Councilmember Weitkunat's position on this. The situation came
about because of a lack of"governance" and it was not acceptable to have the resulting "gap" in fee
increases. He was glad there would be process changes.
Councilmember Ohlson supported having the most accurate formula possible. He supported
"legitimate" impact fees when he could do that with "confidence." He urged the School Districts
to work with all affected parties to make sure the fee was no more than it needed to be. He believed
the School Districts should lobby the State Legislature each year for school impact fees. He would
be supportive of a two-year phase -in.
Councilmember Brown stated he had problems with imposing another fee and with the Poudre
School District standard of 80 acres for a school while Thompson School District had a standard of
45 acres. The Poudre School District should reevaluate its standard. He would not support a fee
increase until there was a reevaluation of the school size.
Councilmember Manvel stated Fort Collins had quality schools. He stated the price of land was
going up every year and a delay in the fee would mean a worsening deficit. He could support a
phase -in if there was a built-in inflation factor. He would not support a phase -in period of longer
than two years.
Councilmember Kastein supported the motion. He saw the Council role as one of "general
oversight." The most important issue to him was whether the Poudre School Board signed off on
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the proposed fee increase as part of a timely public process. This was not being done on a timely
basis but holding off on increasing the fees harmed the building of schools in the long run to address
overcrowding. The Homebuilders Association provided important input regarding cost containment.
Mayor Hutchinson stated this was a "tough issue." The role of the Council was not to determine
School District policies and it was important that those policies be better communicated to the
Council. He would support the motion to help "ease the impact."
The vote on the motion was as follows: Yeas: Councilmembers Hutchinson, Kastein, Manvel,
Ohlson, Roy and Weitkunat. Nays: Councilmember Brown.
THE MOTION CARRIED.
Ordinance No. 148, 2006,
Authorizing the Grant of a Non-exclusive Easement and
Right -of -Way to Platte River Power Authority for Construction
and Maintenance of a 230 W Transmission Line. Adopted on First Reading.
The following is staff s memorandum on the item.
"FINANCIAL IMPACT
Platte River will be responsible for all costs associated with the construction ofthe transmission line
and restoration of disturbed areas. Platte River agrees to pay to the City $153,120 in compensation
for the easement.
EXECUTIVE SUMMARY
Platte River Power Authority is requesting a 75 foot wide, non-exclusive easement for a 230kV
transmission line across Collna Mariposa Natural Area along the east side of Shields Street, south
of Trilby Road. Staff was aware that the Natural Areas Easement Policy does not allow overhead
power lines to be built across natural areas and has worked with Platte River for over a year to find
a solution. Platte River has offered to perform a number of extensive mitigation projects in hopes
the policy can be waived in this instance. Staff and the Land Conservation and Stewardship Board
have concluded that the alignment of the transmission line is the only reasonable alignment and the
mitigation projects offered serve to mitigate the impacts to the natural area and surrounding open
spaces.
BACKGROUND
Platte River has provided the attached packet of information that provides detailed background
information which discusses thefollowing:
Platte River's long rangeplanningforpower transmission to itsfour municipal owners (Fort
Collins, Loveland, Longmont and Estes Park);
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2. the transmission line project, including a detailed map;
3. the proposed easement request, the financial implications, and visual impacts;
4. Platte River's proposed mitigation projects;
5. the legal description for the easement; and
6. the construction process.
Theproposed easementfor the 230kV transmission line across Colina Mariposa will be 75 feet wide
and a mile long and adjacent to Shields Street. Transportation Services requested that the easement
beset back 27.5 feet east of the existing right of way to allow enough additional rights of way for
the future widening of Shields Street.
Platte River's proposal was reviewed in concept a year ago by the Natural Resources Advisory
Board, which recommended the easement be allowed in light of the extensive mitigation measures
proposed. The Land Conservation and Stewardship Advisory Board approved the recommendation
to Council for granting the easement after taking the following steps: reviewing the proposal;
listening to adjoining property owners' concerns; weighing the mitigation measures against the
visual impacts; and discussing with staff the long range goals for Colina Mariposa Natural Area.
Platte River's proposed mitigation projects will potentially aid in the successful completion of
several long range trail and land conservation goals for the natural areas and open spaces in the
Fort Collins -Loveland Community Separator Area, provided that Platte River is able to acquire an
interest in a privately owned property just south of the Colina Mariposa Natural Area.
Fort Collins, Loveland and Larimer County plan to construct a paved regional trail along Shields
Street from Fossil Creek Drive (Fossil Creek Trail at Cathy Fromme Prairie, which will be
connected to the Mason Trail) to 57th Street in Loveland, to connect with existing and planned
Loveland trails. Natural Areas is also proposing to construct a trail from Shields Street across the
McKee Farm Open Space, west to Taft Hill Road and the Coyote Ridge Natural Area.
Platte River intends to acquire two key trail right-of-way parcels along Shields Street and is willing
to grant trail easements for the proposed trail at no cost to the City, should Platte River acquire an
interest in the privately owned parcels. Platte River is also willing to grant conservation easements
that will prevent development on these parcels. The northern parcel is a 314 mile -long parcel
adjacent to the Long View Farm Open Space, a parcel Natural Areas has been trying to conserve
for years.
Although the new transmission line will have some negative visual impacts on the natural area and
the surrounding open spaces, the proposed mitigation by PRPA is excellent. The positive impacts
will out weigh negative impacts, making this a win -win project. "
City Manager Atteberry stated this item was pulled from the Consent Calendar by a citizen and that
staff would be available to answer questions.
Ray Schultz, 625 Holyoke Court, stated the homeowners had originally petitioned to move the
proposed new 80-foot power poles from the railroad track area to Shields Street in order to place it
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further away from the approximately 50 homes along the ridgeline. The homeowners did not realize
the high voltage power lines could go underground and the power lines would still go through a
natural area regardless of the location. The homeowners envisioned a bicycling and walking path
rather than tall structures. The height was required because of the amount of voltage. The
homeowners wanted to know why the power lines could not be placed underground. Platte River
Power Authority had proposed other mitigation to other areas in exchange for this easement. The
impact of the power lines was being shifted to the homeowners to mitigate other areas. The cost to
underground the power lines would be assumed by four cities.
Councilmember Ohlson stated these "monstrosities of poles" would stretch for about eight miles,
including a stretch in the natural area. He asked how it was possible for the power line to cross
another natural area (Pine Ridge) when a waiver was being given for this mile across an open/natural
area. He asked if this action would be a waiver only for this one mile. Mark Sears, Natural
Resources, stated the proposed power line would include 21/2 miles of brand new transmission line
along Shields Street. The remaining 5 1/2 miles would replace an existing transmission line that
went through the Pine Ridge Natural Area. Platte River Power Authority needed to acquire an
easement from the City for the stretch that was one mile south Trilby Road along the east side of
Shields Street.
Councilmember Ohlson asked for confirmation that the transmission line would not be in the Coyote
Ridge natural area. Sears stated that was correct and the line would be in an existing right-of-way
owned by Platte River Power Authority.
Councilmember Ohlson asked if the existing right-of-way was in Coyote Ridge or adjacent to it.
Sears stated it was on the south side of Trilby Road along the north side of Coyote Ridge natural
area.
Councilmember Ohlson asked if the line would go through Pine Ridge Natural Area and, if so,
whether this conflicted with the policy. Sears stated the transmission line would go through an
existing easement that had been the location of a transmission line for more than 30 years. Platte
River Power Authority wanted to upgrade the transmission line to a different kind of pole and the
easement allowed them to do that.
Councilmember Ohlson stated this was a "100-year decision" that would be made. He would have
preferred this issue come to a work session and that it had not been on the Consent Calendar at this
meeting. The agenda item summary stated: "The staff and the Land Conservation Stewardship
Board have concluded that the alignment of the transmission line is the only reasonable alignment
and the mitigation projects offered serve to mitigate the impact to the natural area and the
surrounding open spaces." Based on the minutes this was a "false statement." The original proposal
(the railroad alternative) was the preferred alternative of both the staff and the Board. The
recommendation of the Board was changed when approximately 40 homeowners went to the Board
with their views. To say this was the "only reasonable alignment" was a faulty statement since this
alignment was not anyone's first choice. Sears stated staff was looking at alignment in a broader
scale. Staff believed the only reasonable alignment was through or adjacent to the natural area. The
focus of the natural area policy was whether there was another reasonable alignment that would
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avoid the natural area altogether. The Natural Areas Advisory Board concluded in 2005 and the
Land Conservation Stewardship Board concluded in 2006 that this really was the only reasonable
alignment. Platte River Power Authority could not be expected to shift the transmission line to
another area to avoid the natural area.
Councilmember Ohlson asked why staff changed its recommendation from the railroad alternative
to an alternative that would be "more visible" than the original alternative would have been to 40
homes. Mike Dahl, Platte River Power Authority, stated the original idea was the railroad alternative
because it was lower in elevation. The landowners opposed that alternative because it would place
the transmission line closer to their homes. Platte River Power Authority believed the homeowners
should be given preference over the "transitory" drives along the street. Sears stated he and Platte
River Power Authority made the assumption they were "protecting the view" for the homeowners.
Staff was trying to protect the interests of the homeowners and staff did not have a preference from
the natural areas perspective. Staff was therefore able to "bow to the perspective" presented by the
homeowners.
Councilmember Weitkunat stated the Ordinance dealt with a non-exclusive easement and asked if
the issue was the utilization of the natural area for the easement. Sears stated the easement would
be wholly contained within the existing natural area property for a mile south of Trilby Road.
Councilmember Weitkunat asked if the second issue was the natural areas policy that required buried
transmission lines and the request for a waiver of that policy. Sears replied in the affirmative.
Councilmember Weitkunat asked if the waiver was to be based on mitigation that would be done by
PRPA. She noted the Land Conservation Stewardship Board had considered this issue. Sears stated
the Land Conservation Stewardship Board had considered this on April 12 and July 12.
Councilmember Weitkunat asked for a summary of the Board's discussion and approval. Sears
stated staff reviewed the policy exception with the Board and explained the intent of the policy was
to protect the foothills and the ridgelines. Staff also explained there was an expectation that there
would be exceptions to the policy. The Board asked about the exception procedure, which included
taking the item to the Board and then to City Council. The Board also inquired why there was no
exception criteria, and the staff responded the criteria would have to be written for each specific type
of exception that might be requested and the analysis needed to be made on a case by case basis.
Councilmember Weitkunat asked if the cost to put in the mitigated transmission lines would be
approximately $400,000 and that the cost to underground this mile of transmission line would be
approximately $2.5 million. Mr. Dahl stated the cost to bury one mile of 230 kV transmission line
would be about $2.5 million and the net difference would be about $2 million.
Councilmember Kastein stated he had the same question about costs. He noted the mitigation
measures would not mitigate this transmission line and asked about the cost of those mitigation
measures. Mr. Dahl stated the mitigation measures would be the undergrounding oftwo PRPA-REA
distribution lines near the railroad line, two other lines along the open space area south of this area
and one along Highway 287 near Longview Farm Open Space at an approximate cost of $600,000
to $700,000.
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September 19, 2006
Councilmember Kastein asked for clarification about the undergrounding of REA lines. Mr. Dahl
stated this would be done to remove the distribution poles that existed at the edge of the open space
area. PRPA would be undergrounding City lines and REA lines through open space areas.
Councilmember Kastein asked where the money would come from for the undergrounding of power
lines if the work would be done by the City. He asked why the City should care that money would
be spent to underground other lines instead of to underground this mile of transmission line. He
understood the money was there and it could perhaps be spent on something worthwhile, like a
rebate of energy rates. Brian Moeck, Platte River Power Authority General Manager, stated the one
mile of transmission line affected the City's open space and there would be 2 1/2 miles of
transmission lines that would go from Trilby Road to the substation on the north end of Loveland.
The differential in costs for undergrounding and overhead lines would be approximately $6.25
million. The monies would come from PRPA reserves and this was the "public's money." The REA
line would be undergrounded at the request of citizens during the discussions with the homeowners
and staff. The trade-off for building these taller transmission poles would be the undergrounding
of an existing Fort Collins distribution line along the railroad tracks. PRPA was also asked to
consider undergrounding a PVREA line on South Shields Street. This would not be the first time
this was done as mitigation. PRPA was also asked by the Board to consider undergrounding the line
along Highway 287. The undergrounding of the three lines would be a lot less expensive than the
cost to underground the line in question. PRPA was attempting to "satisfy the most people" who
expressed concerns.
Councilmember Kastein asked about the distance from the proposed poles to the homes. Mr. Dahl
stated the distance was about one -quarter mile near Trilby Road and about less than half of that at
the south end.
Councilmember Manvel asked if the County was having this same discussion about the portion of
the transmission line that would go through County open space. Mr. Dahl replied in the affirmative
and that a decision was made to begin with a waiver request to the City because the portion in the
City's open space would be greater than the portion in the County's open space. If this request was
successful, a request would be made to the County. The County did not have an open space
easement policy in place.
Councilmember Manvel stated the poles along Timberline were "monsters" and asked if these poles
would be similar to the Timberline poles. Mr. Dahl replied in the affirmative and stated the poles
would be 600-700 feet apart and 80-85 feet tall.
Councilmember Manvel stated he believed that the alternative along the railroad track in the valley
would make the line more "inconspicuous." He stated he would support the alternative route.
Councilmember Roy asked where this type of exception had been given in a natural area. Sears
stated this would be the first time since the policy was adopted. He noted there were examples of
power lines in natural areas due to existing easements. The intent was to have a bike trail that
followed the power line easement. The power line along the railroad track would be visible from
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the bike trail. Staff changed its position when a determination was made that it would be best for
the natural area user to have the power line adjacent to Shields Street.
Councilmember Roy asked when the natural areas policy to prohibit overhead transmission lines was
put in place. Sears stated it was 3-4 years ago.
Councilmember Roy stated transmission lines were "noticeable and a huge part of the environment"
on the Poudre River trail. He asked how transmission lines were put in without an exception after
the natural areas policy was put in place. Sears stated existing easements gave the right to replace
transmission lines without an additional or renewed easement.
Councilmember Roy asked about gross PRPA revenues generated in 2005. Mr. Moeck stated gross
revenues were approximately $160 million and that the target net revenue each year was about $6
million.
Councilmember Roy stated there would be a 75-year impact from this decision. The cost to
underground the power line would be a small investment to protect a sizable investment already
made by the City.
Councilmember Weitkunat made amotion, seconded by Councilmember Brown, to adopt Ordinance
No. 148, 2006 on First Reading.
Councilmember Weitkunat stated the Land Conservation and Stewardship Board had expertise in
such matters and the Board had looked at this issue and made a recommendation. She would support
that recommendation.
Councilmember Ohlson stated the Board's motion included asking the Council to look at the
"broader viewshed implications" of this decision. This seemed to indicate that the Board had
concerns. Sears stated the Board's chair indicated that the City needed to look at the overall visual
impact for future requests. He stated the Board intended that such exceptions would not always be
"a given."
Councilmember Ohlson stated this seemed to be a "weak" position once the decision was made on
this particular situation. Before Second Reading, he would like to know if the Natural Areas
program could contribute $1 million to help underground the transmission line. There would be a
"strong reaction" if the poles went in.
Councilmember Ohlson asked if Councilmember Manvel was referring to the poles along Overland
Trail instead of Timberline.
Councilmember Manvel stated he was referring to the poles along Overland Trail.
Councilmember Ohlson asked that prior to Second Reading Council and staff consider that the
photos of the Overland Trail poles were "remarkably misleading." He would like accurate "before
and after" photos of this new project to help with future decisions. He would likely not support the
Ordinance.
September 19, 2006
Councilmember Weitkunat asked if Councilmember Ohlson was suggesting finding money to help
PRPA underground the line.
Councilmember Ohlson stated this was what he was suggesting. People supported open space for
wildlife habitat, recreation and viewsheds and he would support the use of $I million from natural
areas money to make this undergrounding happen.
Councilmember Weitkunat stated this could be an opportunity to ask PRPA if that possibility would
be considered. City Manager Atteberry stated if this was to be Council's direction then he would
like to talk with Natural Resources about the spending natural areas money for this purpose.
Mayor Hutchinson asked that this issue should be investigated before Second Reading. Mr. Dahl
stated if the Council did not grant this easement, PRPA would have to look at some other alternative.
If the City wanted to offer some money, Platte River Power Authority would not say no.
Councilmember Brown noted the easement was needed whether the line would be overhead or
underground.
Councilmember Manvel stated it would be helpful to have a "normal" photograph showing the
"tremendous visual impact" of the Overland Trail power lines. It might be worth some open space
money to avoid "ruining the value" of the open space. He would be interested in the point of view
of the neighbors regarding the railroad track route. He did not want that alternative route to "go
away" at this point. This appeared to be "localizing the impact" of the power line to save money for
PRPA. The cost to underground the lines could perhaps be spread across the system.
Councilmember Kastein stated he would be interested in finding out if natural areas money could
be used to help underground the lines. He was comfortable with following the recommendation of
the staff, the Board and PRPA. He would not support anything that would place the utility at risk.
The mitigation offers that had been made were "reasonable" and minimized the costs to the
ratepayers. He would support the Ordinance on First Reading and looked forward to hearing about
the use of natural areas dollars for mitigation.
Councilmember Roy stated this should not have been on the Consent Calendar. PRPA provided a
"great value" to Fort Collins and he would like PRPA to consider, prior to Second Reading, the long
term value of undergrounding the line to avoid degradation of the view shed. A short term
partnership seemed to be "reasonable" to protect the intangible value of open space.
City Manager Atteberry requested clarification that it was Council's direction to staff to bring back
language relating to the railroad option and the recommended option and to talk with PRPA to
evaluate an undergrounding "partnership." He also understood that staff should discuss how this
would affect natural areas acquisitions and long term O&M needs.
Mayor Hutchinson stated this was his understanding of Council's direction to staff.
Councilmember Ohlson commented he understood why PRPA was willing to do the mitigation
measures that had been offered to avoid the cost of underground this line. He also commented that
September 19, 2006
one of the dissenting Board members noted these were not really mitigation measures being offered
and the visual impact of 85-foot power poles could not be mitigated. The impact of the poles was
being made "much more severe" rather than less severe through direct mitigation.
Councilmember Kastein questioned how the railroad alternative would be kept as an option. He
stated the route options had been considered and he did not want a lot of staff work to be done on
that alternative. He would support having a two -page memo prepared on the railroad alternative.
Mayor Hutchinson stated he did not believe the intent was for additional staff work on the railroad
alternative.
Councilmember Ohlson stated Councilmember Manvel was asking for consideration of the original
option. He stated he did not think that it would involve much more work to bring that option
forward for consideration.
Councilmember Kastein asked if additional information would be needed to include that as an
option. City Manager Atteberry stated it would not require a significant amount of work to bring
forth the railroad option. It would involve negotiating with PRPA on the underground partnership
and the legal work and staff reviews on the use of natural areas money for undergrounding.
Councilmember Manvel stated, if two options were to be presented on Second Reading, then he
would like to have information on the views of the neighbors. He would also like everyone to get
a feel for the impacts.
The vote on the motion was as follows: Yeas: Councilmembers Brown, Hutchinson, Kastein and
Weitkunat. Nays: Councilmembers Manvel, Ohlson and Roy.
THE MOTION CARRIED.
Other Business
Councilmember Ohlson stated he would like a follow-up on the Jack Benny handprint that was now
almost completely gone. He also requested clarification on City policy regarding the humane killing
of prairie dogs that tunneled out after being poisoned.
An unidentified woman asked for time to show photos regarding poisoned prairie dogs. Mayor
Hutchinson stated the opportunity for public comment was past.
Adjournment
The meeting adjourned at 10:30 p.m. 2
Mayor `
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City Clerk
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