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HomeMy WebLinkAboutMINUTES-07/07/2009-RegularJuly 7, 2009 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, July 7, 2009, 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: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy, and Troxell. Staff Members Present: Atteberry, Jensen, Roy. Citizen Participation Eric Sutherland, 631 LaPorte Avenue, questioned the term "zero energy district" and stated the entire city should participate in the new technologies being developed instead of limiting those technologies to only one area of the community. Jeff Emmel, 543 Spindrift Court, urged Council to adopt an ordinance banning drivers from using cell phones while driving. Mary Humstone, 4420 Bingham Hill Road, stated the City of Greeley plans to build a 60-inch water pipeline through a National Register listed property and will destroy critical resources. She asked Council to help protect the historic area. Justine Reed, 146 South College Avenue, owner of the White Balcony Store, asked that Brewfest be moved out of the downtown area because Brewfest has become too big and is bad for downtown business. She presented a petition signed by 87 downtown business owners and managers asking for Brewfest to be moved to a different location. Mandy Kotzman, 3400 Orchard Lane, spoke against the Greeley water pipeline. Al Dunton, 233/235 Linden Street, stated Brewfest should be moved because it has gotten worse over the past 6 years with more property damage resulting from drunkeness. James Pritchett, Bellvue, stated the Greeley water pipeline will adversely affect the instream flows of the Poudre River and the availability of water, particularly in scarce water years. Rebecca Lee, 3273 Silverthorne Drive, urged citizens to oppose the United Nations Convention on children's rights. George Burnette, 4420 Bingham Hill Road, spoke against the Greeley water pipeline because it will harm the flow of water in the Poudre River through Fort Collins. 221 July 7, 2009 Anne Lance, 424 Pine Street, Executive Director of United Daycare Center, thanked the City for its continued support by providing CDBG funds. Greg Speer, 1831 LaPorte Avenue, opposed the Greeley water pipeline project. Nancy Jackson, 3249 Silverthorne Drive, Disabled Resource Services Director, thanked the City for the CDBG funding provided for Disabled Resources to help extremely poor individuals. Dee Amick, 221 Park Street, stated preservation of older neighborhoods is not being addressed by City staff. Two weeks ago, an application for a landmark district in her neighborhood was unanimously accepted by the Landmark Preservation Commission. Advanced Planning has just notified Ms. Amick that there is inadequate justification of the designation and the application is invalid. A house located at 223 Park Street will now be allowed to be demolished because the historic district designation is not in place. Linda Preston, 2918 Trenton Way, BASE Camp Director, thanked Council and the CDBG Commission for providing funding to support families in the community. Carol Jones, 6869 East County Road 54, opposed the Greeley water pipeline project because it will destroy much wildlife habitat. Tracy Mead, Executive Director of the Education and Life Training Center, thanked Council and the CDBG Commission for continuing to support social service agencies, enabling the agencies to assist the low-income population. John Carr, 115 North Washington, questioned the need for the Greeley water pipeline project and he opposed the route chosen to place the pipeline. Vicky Lutz, Crossroads Safehouse Director, thanked the CDBG Commission and the City for continuing to provide funding for Crossroads Safehouse, which assists victims of domestic violence. Mary Carraher, Project Self -Sufficiency Executive Director, thanked the City and the CDBG Commission for recommending funding for Project Self -Sufficiency, which will allow the program to expand and aid more single -parent families.. Stacy Lynne, 216 Park Street, thanked the City Clerk's Office for the assistance it provided during the referendum process. She expressed concern about the process to designate her neighborhood as a landmark district because the process did not work properly. Bruce Lockhart, 2500 East Harmony, stated the City's economic development ideas will not work and should not be pursued. 222 July 7, 2009 Citizen Participation Follow-up Councilmember Roy expressed interest in the attempts to create an historic neighborhood on Park Street and stated his concerns about the demolition of the home at 223 Park Street. He asked if the historic preservation process had been followed. City Attorney Roy stated the Code has certain processes that must be followed and a hold cannot be placed on the demolition of the Park Street home. Joe Frank, Director of Advance Planning, stated a group of property owners submitted an application for the creation of an historic district for Park Street. The Landmark Preservation Commission accepted the application and directed staff to proceed with investigation of the potential for a landmark district. Staff reviewed the information presented in the application, found the information was incomplete and did not meet the requirements of the Code and contacted the applicant today. The applicants will be given another opportunity to submit their application to the Landmark Preservation Commission tomorrow night. Jeff Scheick, Director of Planning, Transportation and Development, stated the owner of the lot at 223 Park Street has been working with the City for several months to develop a plan to clear the lot and build a new house. The owner has followed the State and City processes to acquire a demolition permit. The professional engineer for the project has determined the existing dwelling is not structurally adequate and is not habitable. The Building Inspections staff has also reviewed the building and agrees with the engineer's assessment. The demolition permit has been issued. Councilmember Roy asked if the demolition could be delayed to allow time to process the application for historic designation. City Attorney Roy stated the City Code sets out a process for historic designation of either a particular structure or a district, which was set in motion by the Landmark Preservation Commission. A provision in the Code states no building permits will be issued for a certain period of time until the Council decides whether to designate the structure or the district. The application for the Park Street neighborhood was found to be incomplete, so the interim period of time did not apply. A separate provision of the Code that addresses demolition or relocation of historic structures states such structures will not be demolished until the Code processes have been followed. City staff and the Chair of the Landmark Preservation Commission have approved the structure for demolition without having to go through a more protracted process. Scheick stated mistakes were made in the handling of the historic neighborhood application and the applicants will be given another opportunity to present a completed application to the Landmark Preservation Commission tomorrow night. City Attorney Roy stated the Code does contain a hearing process to delay the demolition of an historic structure, pending some review. A demolition permit could not be issued if the Advance Planning Director and/or the Chair of the Landmark Preservation Commission determine the matter should be reviewed by the Commission. If the structure has not been designated as historic and is not within an historic district, the demolition permit could then be issued. City Manager Atteberry stated the City's process should be followed and the Advance Planning Director and the Chair of the Landmark Preservation Commission need to make that decision. Councilmember Ohlson asked for an examination of the City's policies allowing demolition of structures to protect historic neighborhoods, both short term and long term. City Manager Atteberry stated such a review is a major planning effort that will require funding. City Code gives staff the option of requiring any "scrape -offs" to be reviewed by the Landmark Preservation Commission and 223 July 7, 2009 the Advance Planning Director. Frank stated the Code provides for the option to have the Landmark Preservation Commission review any demolition request of structures that would be eligible for landmark designation. A complete review of the City's policies will probably take six to eight months with much public input into the process. City Manager Atteberry stated Council could adopt an ordinance that declares a moratorium on "scrape -offs" in the City for a certain period of time while a review of the policy is done. City Attorney Roy stated staff could prepare a white paper listing "pros" and "cons" of putting a moratorium into place or Council could direct that a draft ordinance be prepared for its consideration. Councilmember Roy asked what the timeline would-be the property at 223 Park Street. City Attorney Roy stated not every structure 50 years of age and older is subject to the demolition delay process. If the structure is of that vintage and meets one or more of the criteria for historic designation, it is discretionary for the Advance Planning Director and the Chair of the Landmark Preservation Commission to determine whether a hold should be placed on a permit, pending the owner following the procedure for review by the Commission. There is nothing Council can do at this time to halt the demolition of the property. The City Code puts the discretion of issuing a demolition permit in the hands of the Advance Planning Director and the Chair of the Landmark Preservation Commission. Frank stated the act of condemnation of the property negates the demolition delay process. City Attorney Roy stated the City has ordered the demolition or renovation of the property. If the only option given to the property owner was demolition, then the demolition delay process would be negated. If the possibility of renovation is real and if renovated, the property would meet one of the criteria for historic designation, then the demolition delay process is not negated. Frank stated. it is the intent of the property owner to demolish the property and not renovate it. Councilmember Roy asked for a timeline to allow the neighborhood applicants to resubmit their completed application without the demolition of the structure at 223 Park Street. Frank stated the applicants will be given the opportunity tomorrow night to present their application to the Landmark Preservation Commission and the Commission can then decide whether to continue the process to determine if the neighborhood should receive historic designation. The house at 223 Park Street has been condemned, a demolition permit has been issued and the demolition will be allowed to occur. Councilmember Roy stated several citizens expressed their concerns about the location of the Greeley water pipeline and he asked for information about the pipeline and how it will affect the Poudre River, riparian habitat and historic areas, because building the pipeline could affect Fort Collins. Councilmember Poppaw thanked the CDBG Commission for its work in allocating affordable housing and HOME funds. 224 July 7, 2009 Councilmember Ohlson stated Brewfest has outgrown its current location and the Downtown Business Association should work with the business owners who presented the petition to address their concerns. Councilmember Ohlson stated the citizens concerned with the Greeley water pipeline need present their issues to the Larimer County Commissioners and the City of Greeley. There is little the City of Fort Collins can do to change the location of the pipeline. Councilmember Troxell stated Brewfest and the Irish Festival caused considerable problems in the Downtown area and the Downtown Business Association and the Downtown Development Authority should present some solutions to the issues raised. Councilmember Poppaw asked why the Downtown Business Association (DBA) believes Brewfest is good for business when so many downtown business owners signed a petition stating Brewfest adversely affects their businesses. David Short, Executive Director of the Downtown Business Association, stated Brewfest is a large fundraiser for the DBA and those funds are put back into the downtown area. Some businesses did record business during Brewfest. The DBA wants to work with downtown businesses to address the issues raised and still continue the Brewfest. Moving the location of Brewfest is one possibility. Councilmember Ohlson asked if Brewfest created any additional costs for the City. Mr. Short stated the DBA pays for off -duty police officers to work during Brewfest. The only cost to the City is for any overtime incurred by police officers from the District 1 office. District 1 has asked the DBA to pay for the overtime. Councilmember Poppaw asked for a comparison of crime statistics for Brewfest between this year and previous years. Councilmember Troxell asked how many businesses belonged to the DBA. Mr. Short stated the DBA has 215 members and he noted many of the businesses that signed the petition are not members of the DBA. The DBA Board anticipated receiving the petition and will work with the downtown businesses to address the issues. Agenda Review City Manager Atteberry postponed consideration Item #25 Resolution 2009-064 Approving Expenditures from the Art in Public Places Reserve Account in the Cultural Services and Facilities Fund to Commission an Artist to Create Art Elements for the West Harmony Road Project because of current economic conditions. The medians on West Harmony Road do not seem to be the ideal location for this particular art project. He asked staff to remand this item back to the Art in Public Places Board. City Attorney Roy read the changes made to Item #26, Resolution 2009-065 Amending Policies Regarding the Issuance of Proclamations. 225 July 7, 2009 Eric Sutherland, 631 LaPorte, pulled Item 420 First Reading of Ordinance No. 077, 2009 Amending Chapter 26, Article VI, Division 4 of the City Code Relating to Excess Circuit Charge. Bruce Lockhart, 2500 East Harmony, pulled Item #22 First Reading of Ordinance No. 079, 2009, Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements Related to the Mason Corridor Bus Rapid Transit Project (Phase Two). CONSENT CALENDAR 6. Consideration and Approval of the Minutes of the May 19 and June 2, 2009 Regular Meetings and the May 12, June 9 and June 23, 2009 Adjourned Meetings. 7. Second Reading of Ordinance No. 063, 2009, Appropriating Prior Year Reserves. Ordinance No. 063, 2009, was unanimously adopted on First Reading on June 2, 2009. The Ordinance appropriates prior year's reserves for expenditures authorized in 2008 by Council but which could not be completed by the end of 2008. 8. Second Reading of Ordinance No. 064, 2009, Appropriating Prior Year Reserves in the Natural Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the 2009 Adopted City Budget and Authorizing the Transfer of Appropriations to the Capital Projects Fund. This Ordinance, unanimously adopted on First Reading on June 2, 2009, appropriates prior year reserves in the Natural Areas Fund for the purpose of land conservation, construction of public improvements, fences and trails, restoration of wildlife habitat and other natural areas program needs to benefit the citizens of Fort Collins. 9. Second Reading of Ordinance No. 065, 2009, Appropriating Prior Year Reserves in the General Fund for Cultural Development and Programming Activities and the Fort Collins Convention and Visitors Bureau. This Ordinance, unanimously adopted on First Reading on June 2, 2009, appropriates lodging tax revenues that were in excess of 2008 budgeted lodging tax receipts to Cultural Development and Programming ("CDP"), Visitor Events, and the Convention and Visitors Bureau ("CVB") accounts. Lodging tax revenues for 2008 were estimated to be $746,241 and the 2008 budget appropriated an equal amount. However, actual receipts totaled $833,468 for 2008 and the difference of $87,227 has not been appropriated. The CDP and Visitor Events accounts each had funds from revenue received and previous year lodging tax allocations which were not used during 2008. The unexpended 2008 funds are: CDP - $75,207, and Visitor Events - $54,031. These funds are in the General Fund 226 July 7, 2009 reserves for lodging taxes and must be appropriated into the respective CDP and Visitor Events accounts. 10. Second Reading of Ordinance No. 066, 2009, Making Various Amendments to the Cites Use Code. This Ordinance, unanimously adopted on First Reading on June 2, 2009 makes a variety of proposed changes, additions and clarifications in the 2009 annual update of the Land Use Code. 11. Second Reading of Ordinance No. 067, 2009, Appropriating Unanticipated Revenue in the Community Development Block Grant Fund. The American Recovery and Reinvestment Act of 2009 appropriated $1 billion in Community Development Block Grant (CDBG) funds to states and local governments to carry out, on an expedited basis, eligible activities under the CDBG Program. The City has received an allocation of $271,137 of FY 2008 CDBG funds through the CDBG Recovery Program from the U.S. Department of Housing and Urban Development (HUD). Ordinance No. 067, 2009, unanimously adopted on First Reading on June 2, 2009, appropriates those funds. 12. Second Readine of Ordinance No. 068, 2009, Appropriating Unanticipated Revenue from the Colorado Department of Transportation in the Transit Fund for the Development of the Transit Strategic Plan. Transfort has received a grant in the amount of $15,000 from CDOT, under Section 5304, a statewide transit planning grant program, to contribute toward the work necessary to complete the 2009 Transit Strategic Plan with a total project budget of $197,555. This Ordinance, unanimously adopted on First Reading on June 2, 2009, appropriates the grant funds. 13. Second Reading of Ordinance No. 069, 2009, Appropriating Unanticipated Revenue in the Capitals Projects Fund, Mason Corridor Project for the South Transit Center Project. The Colorado Department of Transportation is providing funding for the design portion of the South Transit Center, which is a component of the Mason Corridor/MAX Bus Rapid Transit (BRT) Project. This Ordinance, unanimously adopted on First Reading on June 2, 2009, appropriates those funds. 14. Second Reading of Ordinance No. 070, 2009, Authorizing Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements in Connection with the Harmony Road and College Avenue Improvements Project. The College Avenue and Harmony Road Improvements Project requires acquisition of various real property interests from five different properties which are located at the 227 July 7, 2009 College/Harmony and Harmony/Mason intersections. This project is partially federally funded through the Colorado Department of Transportation and, since the project will modify College Avenue, which is a State highway, all aspects of the project, including property acquisitions, must comply with procedures for federally funded projects. The acquisition phase of this project will conform to the provisions of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 as Amended (Public Law 91-646). In accordance with these regulations, property owners must be informed about the possible use of eminent domain and their rights pursuant to Colorado Statute in the official Notice of Interest Letter. Authorization from City Council is needed prior to sending this information to property owners. This letter is the first official step in the acquisition phase and happens prior to the appraisals. This Ordinance, unanimously adopted on First Reading on June 2, 2009, authorizes the use of eminent domain for this project. 15. Second Reading of Ordinance No. 071, 2009, Appropriating Funds Transferred from the Fort Collins Urban Renewal Authority Fund into the Capital Projects Fund for the North College Avenue and East Willox Lane Improvement Project. The Marketplace development is located on the northeast corner of North College Avenue and Willox Lane. It is a large commercial shopping center with a King Soopers grocery store anchor tenant. There will be significant, beneficial financial impacts to both the City and the Fort Collins Urban Renewal Authority from this project. On May 19, 2009, City Council adopted, on Second Reading, Ordinance No. 049, 2009, authorizing acceptance of the transfer of funds from the URA to a City Capital Projects account for the purpose of designing and constructing improvements to the northeast corner of North College Avenue and Willox Lane. However, this Ordinance did not appropriate those funds. Because the URA and the City are separate legal entities, it is necessary for Council to appropriate the transferred funds. Ordinance No.071, 2009, unanimously adopted on First Reading on June 9, 2009, accomplishes this. 16. First Reading of Ordinance No. 072, 2009, Appropriating Unanticipated Grant Revenue in the General Fund for the Restorative Justice Program and Authorizing the Transfer of Matching Funds Previously ppropriated in the Police Services Operating Budget_ A grant in the amount of $21,574 and additional funds of $5,000 have been received from the Colorado Division of Criminal Justice (DCJ) for salaries associated with the continued operation of Restorative Justice Services, which includes the RESTORE program for shoplifting offenses, and the Restorative Justice Conferencing Program (RJCP) for all other offenses. Restorative Justice is an alternative method of holding a young offender accountable by facilitating a meeting with the offender, the victim and members of the community to determine the harm done by the crime, and how to repair the harm. By identifying and repairing the harm caused by the crime, Criminal Justice Officials are optimistic repeat offenses by these youth will be reduced and the needs and concerns of the victims and affected community will be addressed. A $7,191 cash match is required for the $21,574 grant and will be met by appropriating funds from the police operating budget. A 228 July 7, 2009 $1,667 cash match is required for the $5,000 additional funds and will be met by appropriating funds from prior program income. 17. First Reading of Ordinance No. 073 2009 Appropriating Unanticipated Grant Revenue in the Light and Power Fund for the Energy Star New Homes Program and for the Residential Solar Grant Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Light and Power Operating Budget. This Ordinance appropriates grant funds received from the State of Colorado's Governor's Energy Office totaling $72,500. $22,500 ($45,000 with the Utilities match) will be used for the Residential Solar Program. $50,000 was granted for the implementation of the ENERGY STAR New Homes Program. This will require a $15,000 match from the Utilities and a $35,000 match from other program partners. The Utilities funds will be transferred from existing Light and Power operating appropriations. 18. Items Relating to the Completion of the 2009 Spring Cycle of the Competitive Process for AllocatingCi1y Financial Resources to Affordable Housing and Community Development Activities Utilizing the Federal Community Development Block Grant (CDBG) Program, and Home Investment Partnership (HOME) Program, and the City's Human Services Program and Affordable Housing Fund. A. Hearing and Resolution 2009-060 Approving the Programs and Projects That Will Receive Funds from the Federal Community Development Block Grant (CDBG) and Home Investment Partnership (HOME) Programs, and the City's Human Services Program and Affordable Housing Fund. B. Hearing and Resolution 2009-061 Approving the Fiscal Year 2009 Home Investment Partnerships Program for the City of Fort Collins. C. Hearing and First Reading of Ordinance No. 074, 2009, Appropriating Unanticipated Revenue in the Community Development Block Grant Fund. D. Hearing and First Reading of Ordinance No. 075, 2009, Appropriating Unanticipated Revenue in the HOME Investment Partnership Fund. The Resolutions and Ordinances will complete the 2009 spring cycle of the competitive process for allocating City financial resources to affordable housing programs/projects and community development activities. 19. First Reading of Ordinance No. 076 2009 Dissolving the Telecommunications Board and Amending City Code by Repealing Sections Relating to the Telecommunications Board. This Ordinance will dissolve the Telecommunications Board. Because of the current state of the telecommunications and cable TV regulatory environment and the City's limited role in either providing or regulating any form of data and telecommunications services, the charter and mission of the Telecommunications Board is no longer aligned with City needs 229 July 7, 2009 and priorities. In light of that assessment, the Telecommunications Board can be dissolved without adversely affecting the City. 20. First Reading of Ordinance No 077 2009 Amending Chapter 26 Article VI Division 4 of the City Code Relating to Excess Circuit Charge. This Ordinance allows the Utilities to respond promptly to a customer's request for excess capacity service based on the proposed Code provision. The charges for the service will be stated in the Code and revised when electric cost of service studies are updated. 21. First Reading of Ordinance No 078 2009 Amending the City Code and the Traffic Code Regarding Obstructions of Parking Spaces for Persons with Disabilities. This Ordinance will relocate Traffic Code Section 1208(10) regarding parking privileges for persons with disabilities to City Code, Section 20, for more logical placement within the Code and to increase effectiveness of enforcement. This Section prohibits any person from placing or allowing to remain, any snow, ice, litter or other materials onto any parking space which is identified for use by persons with disabilities, or on any area immediately adjacent thereto. 22. First Reading of Ordinance No 079 2009 Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements Related to the Mason Corridor Bus Rapid Transit Project (Phase Two). The Mason Express ("MAX"), bus rapid transit project is entering the right-of-way acquisition phase of the project. Project acquisitions have been broken into three phases. This Ordinance pertains to the second phase (Phase Two) and consists of eighteen distinct property ownerships. Phase One was adopted by Ordinance No. 059, 2009 on June 2, 2009. As a critical, federally funded transportation project, staff requests authorization to utilize eminent domain, if necessary, and only if good faith negotiations break down, in order to ensure a timely acquisition of the necessary property interests. 23. First Reading of Ordinance No 080 2009 Repealing Ordinance No. 038 2009• Expanding the Boundaries of the Fort Collins Colorado Downtown Development Authority; and Amending the Plan of Development of the Authority. Council adopted Ordinance No. 038, 2009 on May 5, 2009, that approved the inclusion of the Lemay/Lincoln Avenue Area Properties, and Howes/Laurel Street Area Properties within the boundaries of the District. As the Ordinance was being prepared for recording with Larimer County, the Assessor's staff contacted the Downtown Development Authority (DDA) and noted an error in the legal description of the DDA boundary amendment. Staff determined the error was perpetuated from the beginning of the inclusion process, due to inconsistent records that staff relies upon to routinely verify legal descriptions. Therefore, 230 July 7, 2009 Ordinance No. 03 8, 2009 must be repealed and a new Ordinance approved with the corrected legal description and petition. NOTE: .As a result of working together to solve the issue related to the legal description error, the DDA, County and City staff identified other errors in the official DDA boundary legal description. Staff used this housekeeping exercise as an opportunity to correct errors dating as far back as the 1980's, and has provided a corrected district legal description in the attached ordinance. The petitions for inclusion would change the boundaries of the DDA District and amend the Plan of Development of the Authority to include in the Lemay/Lincoln Avenue area and the South Howes Street area. 24. Resolution 2009-063 Approving the Acceptance of the Proposed Donation of the Sculpture "Transcend." This Resolution accepts the donation of artwork, a sculpture entitled "Transcend" by artist Collen Nyanhongo, to the City. The sculpture will become part of the City's Art in Public Places collection. 25. Resolution 2009-064 Approving Expenditures from the Art in Public Places Reserve Account in the Cultural Services and Facilities Fund to Commission an Artist to Create Art Elements for the West Harmony Road Project. This Resolution will approve expenditures of $38,600 for design, materials, installation and contingency for a project by the artist Christopher Weed to create sculptural elements for the West Harmony Road Project. 26. Resolution 2009-065 Amending Policies Re ag rding the Issuance of Proclamations. Adoption of this Resolution will amend the Council policies related to proclamations to clarify that proclamations are intended to honor local persons or to celebrate certain community activities or events and are not intended to be a means by which the City takes a position on controversial matters that may be the subject of strongly divergent views within the community. 27. Resolution 2009-066 Reappointing Gordon F. Esplin as Temporary Judge and Authorizing the Execution of an Employment Agreement. Council originally appointed Gordon F. Esplin as Temporary Judge (Assistant Municipal Judge) in 1989, and has reappointed him every two years thereafter. His current appointment terminated on June 30, 2009. Municipal Judge Kathleen M. Lane recommends that Mr. Esplin be reappointed for another two-year term. 231 July 7, 2009 Mr. Esplin has been paid $85 per hour for his services for several years now. While that rate is well below the going rate for legal fees in Fort Collins, it is an appropriate rate for this occasional hourly service when compared with what other municipalities pay their Assistant Municipal Judges. Mr. Esplin has agreed to continue in this position at the current pay rate. 28. Resolution 2009-067 Making Appointments to the Commission on Disability and the Downtown Development Authority. A vacancy currently exists on the Commission on Disability due to the resignation of Kimberly Imig. Mayor Doug Hutchinson and Councilmember Lisa Poppaw conducted interviews and are recommending that Carrie Sue Rogers fill the vacancy with a term to begin immediately and set to expire on December 31, 2011. A vacancy currently exists on the Downtown Development Authority due to the resignation of Ryan Keiffer. Mayor Pro Tem Kelly Ohlson and Councilmember Ben Manvel reviewed the application on file. The Council interview team is recommending Janet Bramhall to fill the vacancy with a term to begin immediately and set to expire on December 31, 2011. 29. Routine Easements. A. Easement dedication for a permanent drainage easement from Lone Cactus Capital Group, LLC, to enlarge existing detention pond, located at 4800 Wheaton Drive (parking lot). Monetary consideration: $10. B. Easement dedication for permanent utility easement from Lone Cactus Capital Group, LLC, for the relocation of a fire hydrant and meter pit that is related to a parking lot expansion being done at 4800 Wheaton Drive. ***END CONSENT*** Ordinances on Second Reading were read by title by Deputy City Clerk Jensen. 7. Second Reading of Ordinance No. 063, 2009, Appropriating Prior Year Reserves. 8. Second Reading of Ordinance No. 064, 2009, Appropriating Prior Year Reserves in the Natural Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the 2009 Adopted City Budget and Authorizing the Transfer of Appropriations to the Capital Projects Fund. 9. Second Reading of Ordinance No. 065, 2009, Appropriating Prior Year Reserves in the General Fund for Cultural Development and Programming Activities and the Fort Collins Convention and Visitors Bureau. 10. Second Reading of Ordinance No. 066, 2009, Making Various Amendments to the City Land Use Code. 232 July 7, 2009 11. Second Reading of Ordinance No. 067, 2009, Appropriating Unanticipated Revenue in the Community Development Block Grant Fund. 12. Second Reading of Ordinance No. 068, 2009, Appropriating Unanticipated Revenue from the Colorado Department of Transportation in the Transit Fund for the Development of the Transit Strategic Plan. 13. Second Reading of Ordinance No. 069, 2009, Appropriating Unanticipated Revenue in the Capitals Projects Fund, Mason Corridor Project for the South Transit Center Project. 14. Second Reading of Ordinance No. 070, 2009, Authorizing Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements in Connection with the Harmony Road and College Avenue Improvements Project. 15. Second Reading of Ordinance No. 071, 2009, Appropriating Funds Transferred from the Fort Collins Urban Renewal Authority Fund into the Capital Projects Fund for the North College Avenue and East Willox Lane Improvement Project. 16. First Reading of Ordinance No. 072, 2009, Appropriating Unanticipated Grant Revenue in the General Fund for the Restorative Justice Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Police Services Operating Budget. Ordinances on First Reading were read by title by Deputy City Clerk Jensen. 17. First Reading of Ordinance No. 073, 2009 Appropriating Unanticipated Grant Revenue in the Light and Power Fund for the Energy Star New Homes Program and for the Residential Solar Grant Program and Authorizing the Transfer of Matching Funds Previously Appropriated in the Light and Power Operating Budget. 18. Items Relating to the Completion of the 2009 Spring Cycle of the Competitive Process for Allocating City Financial Resources to Affordable Housing and Community Development Activities Utilizing the Federal Community Development Block Grant (CDBG) Program, and Home Investment Partnership (HOME) Program, and the City's Human Services Program and Affordable Housing Fund. C. Hearing and First Reading of Ordinance No. 074, 2009, Appropriating Unanticipated Revenue in the Community Development Block Grant Fund. D. Hearing and First Reading of Ordinance No. 075, 2009, Appropriating Unanticipated Revenue in the HOME Investment Partnership Fund. 19. First Reading of Ordinance No. 076, 2009, Dissolving the Telecommunications Board and Amending City Code by Repealing Sections Relating to the Telecommunications Board. 233 July 7, 2009 20. First Reading of Ordinance No. 077, 2009 Amending Chapter 26, Article VI, Division 4 of the City Code Relating to Excess Circuit Charge. 21. First Reading of Ordinance No. 078, 2009 Amending the City Code and the Traffic Code Regarding Obstructions of Parking Spaces for Persons with Disabilities. 22. First Reading of Ordinance No. 079, 2009, Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements Related to the Mason Corridor Bus Rapid Transit Project (Phase Two). 23. First Reading of Ordinance No. 080, 2009, Repealing Ordinance No. 038, 2009; Expanding the Boundaries of the Fort Collins, Colorado Downtown Development Authority; and Amending the Plan of Development of the Authority. 33. First Reading of Ordinance No. 081, 2009, Amending the Land Use Code to Reduce the Buffer Around Wastewater Treatment Plants. Councilmember Ohlson made a motion, seconded by Councilmember Poppaw to adopt and approve all items not withdrawn from the Consent Calendar and to adopt Item #26 as revised. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. Consent Calendar Follow-up Mayor Hutchinson noted the CDBG Commission is composed of volunteers who work with staff to make difficult decisions and he thanked the Commission for its work. Councilmember Troxell asked if the donation of the sculpture "Transcend" (Item #24) will provide an in -kind contribution in lieu of requiring another project to use 1% of the project funds for Art in Public Places. City Attorney Roy stated the donation cannot be considered in lieu of another project. Each project that is required under the Code to contribute 1% is still required to do so and is not relieved of that necessity by this art donation. Staff Reports City Manager Atteberry stated the national trade publication, Recreation Mana eg ment, named the Northside Aztlan Community Center as the winner of its 2009 innovative architecture and design award. City Manager Atteberry noted Soapstone Prairie Natural Area was featured in National Geographic 's Traveler's Ma ag zine in June. City Manager Atteberry thanked Campus Crusade for holding its biennial conference at Fort Collins, which brings almost 6,400 visitors to Fort Collins. Many members of Campus Crusade have 234 July 7, 2009 volunteered at various parks and natural. areas this summer and provided over 900 hours of volunteering to the City. Deputy City Manager Jones stated the stakeholder committee, composed of CSU students, neighborhood and industry representatives, has met twice to review the Occupancy Ordinance and has also met in separate focus groups to discuss the impacts of the Occupancy Ordinance and to provide recommendations to make the Ordinance more effective. The whole committee will meet in July, August, and September and will have an opportunity to review the Corona Report that has been prepared on the Occupancy Ordinance. ("Secretary's note: The Council took a brief recess at this point in the meeting.) Ordinance No. 081, 2009, Amending the Land Use Code to Reduce the Buffer Around Wastewater Treatment Plants, Postponed The following is staff s memorandum for this item. "EXECUTIVE SUMMARY The Mulberry Water Reclamation Facility will soon be significantly upgraded with aggressive odor controls and additional treatment technologies. This includes introducing bio-filters, covering all basins and adding a carbon filter. Reducing the buffer from 1,000 to 500 feet acknowledges the effectiveness of these measures. The reduced buffer exceeds the regulations and policies of the Colorado Water Quality Control Division. BACKGROUND The Land Use Code was first adopted in March 1997. Subsequent revisions have been recommended on a regular basis to make changes, additions, deletions and clarifications that have been identified since the last update. The proposed change will reduce the buffer around the Mulberry Water Reclamation Facilityfrom 1, 000 feet to 500 feet. On May 21, 2009, the Planning and Zoning Board considered the proposed change as part of a set of 15 revisions. The Board then made a motion to approve all 15 of the proposed revisions as a package and then voted 6— 0 to forward to City Council a recommendation ofapproval. Ordinance No. 066, 2009, adopted on Second Reading earlier this evening as part of the Consent Calendar, approves the other 14 revisions. " Steve Dush, Current Planning Director, stated this item is a collaborative effort between Current Planning and Utilities. Current Planning is involved because the proposed change will amend the Land Use Code. Utilities is involved because of the technical upgrades to the Mulberry Water Reclamation Facility. The Planning and Zoning Board unanimously approved this amendment to the Land Use Code. 235 July 7, 2009 Ted Shepard, Chief Planner, stated the current standard was adopted in 2001 and provided a 1000- foot odor buffer around waste treatment plants. The proposed Land Use Code change will reduce the buffer to 500 feet, based on wastewater treatment plants providing certain upgraded technologies. The odor buffer will not impact existing buildings and will allow building additions and expansions. The odor buffer will impact future new construction or when there is a change of use in an existing building. The proposed change will remove a small section of the East Side neighborhood, located along Riverside and Mulberry, from the odor buffer. I The Land Use Code provides a 300-foot buffer for natural habitat and features along the Poudre River, measured from top of the bank of the River. A 100-year floodway and floodplain buffer, measured from the River, also exists around the Mulberry Plant. The most stringent buffer requirements would prevail on any property located with the various buffers around the Mulberry Plant. The proposed 500-foot buffer is exceeded by the 300-foot natural habitat and feature buffer and the 100-year floodway buffer, in combination. Rich Shannon, Pinnacol Consulting Group, 510 Granite Street, Loveland, representing the property owners of the Lincoln Greens property, supported the proposal and stated the staff recommendation is reasonable. Bruce Lockhart, 2500 East Harmony, did not support any change at this time and he suggested waiting until the upgrades were complete at the Mulberry Plant to deter mine if the upgrades warrant making any changes to the odor buffer. Councilmember Poppaw asked if there was any reason to change the odor buffer at this time and if it would be possible to wait until the upgrades are installed before considering a change to the odor buffer. Brian Janonis, Utilities Executive Director, stated there was no urgent reason a change to the odor buffer. Mr. Shannon stated the technology behind the upgrades to the Mulberry Plant is well - tested and tried throughout the state. Testing the effectiveness of the upgrades is not done by "taking a whiff' but is based on modeling, with testing done at the Plant itself. Current technology shows that, at most, there might be an odor at 250 feet. A 500-foot buffer will give the community a large margin of error and is a reasonable compromise. Changing the odor buffer will allow the property owners to move forward with the sale of the property. The property has much potential for the Downtown Development Authority and the City of Fort Collins. There is no buyer for the property at this time because of the size of the current buffer, which inhibits planning for development of the property. The property could be annexed into the DDA boundary and create a large amount of tax increment to support many goals for the downtown area. The ability to move forward with the sale process, the planning process with the City should be happening now so that when the economy turns around in the next two to three years, the property will be ready. A delay of three to four years creates a significant burden on the property owners. Councilmember Manvel asked what restrictions would be placed on the property, which is located on the flood fringe. Marsha Hilmes-Robinson, Stormwater Civil Engineer, stated non-residential structures can be build in a flood fringe, but would need to be elevated two feet above the flood elevation. Any development that included residential or mixed -use would first be required to go through a separate process with FEMA to remove the land from the floodplain and would still be 236 July 7, 2009 required to elevate buildings two feet above the flood elevation. There are restrictions as to what type of businesses would be allowed in the floodplain. Councilmember Manvel asked if the buffer for residential development would remain at 1000 feet, if the proposed Land Use Code amendment were adopted. Shepard stated the proposal takes the buffer from 1000 feet to 500 feet and does not differentiate between residential and commercial development. Councilmember Manvel asked what percentage of the property is unable to be developed with the current odor buffer. Mr. Shannon stated about 50% of the property is unable to be developed at present, but changing the size of the odor buffer will alter the configuration of the property and allow a more comprehensive master plan approach to development. Decreasing the size of the odor buffer will allow 25% more of the property to be developed. Mayor Hutchinson asked for clarification of the points to be considered in making this decision. Shepard clarified solids will not be treated at the Mulberry Plant but will be bypassed to the Drake Plant. This Plant will only be treating liquids and will have upgraded odor control through the biofrlters and the carbon scrubbers and the covered basins which is sufficient to lower the odor buffer to 250 feet. Staff is recommending an odor buffer of 500 feet, which exceeds the state recommendation. The Planning and Zoning Board was comfortable with the technology being installed at the Mulberry Plant and recommended approval of the odor buffer change. Janonis stated odors could always be an issue, but the best technology is being installed with the upgrades to the Mulberry Plant. Councilmember Ohlson asked for more information about the.upgrade to the Mulberry Plant, the cost and when it will be completed. Janonis stated the trickling filter was built in 1948 and failed in 2003, which raised the odor level significantly in the area. Utilities made the decision to replace the trickling filter and upgrade the Plant. Upgrades are currently underway at a cost of $30 million with $2 million for odor control. Steve Comstock, Water Reclamation and Biosolids Manager, stated the $2 million is an additional cost for the second stage of odor control. Janonis noted the additional cost was included to provide protection of existing rate payers and was not related to any request from the owners of the Lincoln Green property. The upgrades to the Plant are scheduled to be completed in 2010 and be in operation by early 2011. Councilmember Roy noted a memo from the Chair of the Water Board stated the City was approached by the owner of Lincoln Greens regarding the effects of the current buffer zone limits on their property. Janonis acknowledged the Lincoln Green property owners approached the City about lowering the odor buffer zone, but the equipment being installed for odor control was selected to protect existing rate payers. Utilities did not intend to reduce the odor buffer when the upgrades were designed. Mayor Hutchinson noted none of the expenditures for the project were aimed at lowering the odor buffer to increase buildable land but were to protect rate payers. Janonis stated the driving force behind the upgrades to the Mulberry Plant was the failure of the trickling filter. EPA standards state 237 July 7, 2009 the life expectancy of a wastewater treatment plant is 50 years so the Mulberry Plant is past due for an overhaul. Councilmember Kottwitz asked if the funds for the upgrades have already been allocated and if any change to the odor buffer will affect the cost to upgrade the Plant. Janonis stated the upgrades are already underway and any change to the odor buffer will not affect the cost of the upgrades. Councilmember Troxell asked if the state -mandated odor buffer of 250 feet included any safety factors. Comstock stated the 1000-foot buffer was put into place at the recommendation of state policy. The 250-foot buffer is recommended for public health to prevent contamination by airborne bacteria and is not related to odor. Councilmember Troxell asked what benefits the City might get from the Pickle Plant Project. City Manager Atteberry stated the Pickle Plant Project is currently on hold. The odor buffer is not related to the Pickle Plant Project. Janonis noted the Pickle Plant is a solar project and will not be a habitable structure and would be allowed inside the 1000-foot odor buffer. Carrie Daggett, Deputy City Attorney, stated the State's public health policy that sets the 250-foot buffer is used to evaluate proposed expansions or new locations for wastewater treatment plants and the State reserves the right to require a larger buffer if the circumstances require. She noted Council is setting a regulatory standard to determine the proper buffer for a plant that meets the zero dilution threshold standard and is not specifically considering development of an individual property. Councilmember Ohlson asked for clarification of the amount of developable land that would be located in the floodplain. Hilmes-Robinson stated it is very difficult to develop within the floodway line because City Code prohibits any residential, non-residential or mixed -use within the floodway. The only way to develop within the floodway is through a major construction project that raises the land and would require FEMA to remap the property. Development can occur in the floodplain. Councilmember Ohlson asked if the area between the 500 and 1,000 feet would be habitable but could not be residential. Shepard stated the Code change does not require any differentiation between habitable or non -habitable structures in the area between the 500 and 1,000-foot zone. Councilmember Ohlson stated a spill occurred several years ago that was never attributed to any entity and he asked if the spill contributed to the decision to upgrade the Plant. Janonis stated the spill or intentional dumping that occurred several years ago was a contributing factor to the failure of the trickling filter. It was never determined who did the illegal dumping. Replacement of the Plant was being considered, but the failure of the trickling filter moved the upgrades forward by several years. Councilmember Manvel asked what were the odds of equipment failure at the Plant that would create significant odor problems. Janonis stated it is impossible to predict when or if failure might occur. Odor control is the most difficult area to control in wastewater treatment. July 7, 2009 Councilmember Manvel asked if the Plant would ever be expanded. Janonis stated the Plant will never be expanded because it is at its maximum allowable size. Additional treatment will probably be required within the next ten years to meet new nutrient standards for the Poudre River. Councilmember Troxell asked for the life of the upgraded facility. Janonis noted EPA guidelines state a treatment plant will last 50 years. Councilmember Troxell stated the State allows an odor buffer of 250 feet, but the proposed Code change is for 500 feet. Janonis stated 250 feet is the State minimum for a buffer. Councilmember Ohlson noted the State standard is set for airborne contaminants and not for odor control. Councilmember Poppaw asked for clarification of the memo from the Chair of the Water Board, which states "The state policy for buffer zones recommends a zone of 1000 feet." Comstock stated the 250-foot buffer and the 1000-foot buffer recommended by the State are for two separate issues. The 250-foot is the minimum standard set for public health but the recommendation for odor is 1000 feet. The State policy has changed since the City set the odor buffer at 1000 feet. Daggett stated the State policy no longer references 1000 feet. Comstock stated, from the State's perspective, there is no regulation or requirement for odor control so the numbers provided in the State's policy relate to a facility with no odor control equipment at all. Some of the measures included in the upgrade directly address odor control. Councilmember Ohlson asked if the State Policy prohibits residential within the odor buffer zone. Daggett stated she needed to confirm what the Policy states before she could give an answer. Councilmember Ohlson asked if there were any plans to change the 1000-foot odor buffer currently in place at the Drake Treatment Plant. Janonis stated private storm drainage facilities, City -owned natural areas, Utility -owned property, CSU Nature Center and one small parcel of private ownership are located within the 1000-foot buffer and there are no plans to change the buffer at the Drake facility. Comstock noted the proposed Code language references the type of technology being installed at the Mulberry Plant and is not installed at the Drake Plant so the Drake Plant would not qualify for a smaller odor buffer. Councilmember Ohlson asked if the odor buffer at the Drake facility had ever been reduced. Janonis stated the Drake Plant had no buffer and was surrounded by farm land. A development was proposed that would have been located close to the Drake Plant. At that time, the State policy of 1000-foot buffer was implemented and the developer put stormwater facilities at the lower end of his property so no habitable structures would be located within the 1000-foot buffer. Utilities bought another parcel to prevent development within the buffer. Millions of dollars were spent on odor control at the Drake Plant because odors occur, even with a 1000-foot buffer. Comstock stated the funds were spent to renovate the existing facility and no new odor control equipment was installed. The renovations replaced equipment and moved the plant from chemical treatment to biological treatment of waste. 239 July 7, 2009 Councilmember Manvel asked if changes to the waste flow through denser material from low -flush toilets would affect the odor control measures. Janonis stated water conservation has increased the waste concentration. Comstock noted the increased waste concentration moves slower through the pipes and degrades quicker so the waste has more odors associated when it gets to the treatment plant. Councilmember Ohlson made a motion, seconded by Councilmember Manvel, to postpone further discussion of Item #33 until after consideration of the two pulled items to allow time for Deputy Attorney Daggett to finish her research of the State policy. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. Ordinance No. 077, 2009 Amending Chapter 26, Article VI, Division 4 of the City Code Relating to Excess Circuit Charge, Adopted on First Reading The following is staff s memorandum for this item. "EXECUTIVE SUMMARY This Ordinance allows the Utilities to respond promptly to a customer's request for excess capacity service based on the proposed Code provision. The charges for the service will be stated in the Code and revised when electric cost of service studies are updated. BACKGROUND Large commercial and industrial electric customers may request electrical distribution services related to excess circuit capacity. Currently, the Electric Utility reviews individual customer requests for these services, determines the impact to service disruption and the distribution system, and forms a special services agreement setting the charges for this additional service. A special services agreement with each customer allows the Utility to properly bill for the excess circuit capacity requested. Ordinance No. 057, 2009, adopted June 2, 2009, requires the Utilities to bring all special services agreements that modify rates, fees or charges before the Council for approval. The excess circuit capacity charge is a modification of the standby charges. The electric distribution system is designed with certain levels of redundancy whereby, if.service to afacility is disrupted, service can be rerouted through alternative routes to reconnect to a customer. When a customer wants immediate backup service for an automatic throw over (A TO) or by manually performing the same operation, the Utility will provide a service path that is always available in case of a disruption, so that switching is immediate and no outage is experienced. The charges for this service are based on the costs relevant to the facilities needed to provide immediate switching capabilities. Current commercial tariffs have a Distribution Standby Charge designed to recover the capital and operations and maintenance (O&M) expenses associated with the reserved capacity, should a customer want to purchase it for intermittent or stand-by loads. A customer load 240 July 7, 2009 supplied for immediate backup does not need additional substation capacity. Without substation costs, the facilities charge is 62.4% of the standard facilities charge. Immediate switching of customer load from one source to another source increases infrastructure costs by 33%. Based on this, the facilities charge for excess circuit capacity service calculates to 20.8% of the current facilities charge (62.4%x 33%). In order to accommodate and expedite the process for customers who may request excess circuit capacity, utilities staff is recommending codification of the excess circuit capacity charge. This would allow the Utilities to respond promptly to a customer request for this service. The suggested Code change will be presented to the Electric Board at its regular July 1, 2009 meeting. Excerpts from the minutes of that meeting will not be available by the packet distribution deadline for the July 7 Council meeting. Excerpts related to the Code change will be provided prior to Second Reading on July 21, 2009. " Eric Sutherland, 631 LaPorte, stated the process to regulate the municipally -owned utility is not optimal. The Electric Board did not have the proposed Code language at the time it met. The lack of process does not allow Council to fully utilize its boards and commission and gain all perspectives on complex issues. Councilmember Ohlson asked why the Electric Board did not have the proposed Code language to consider when it discussed this issue. Brian Janonis, Utilities Executive Director, stated boards and commissions are generally asked to advise on policy issues but Code changes are not typically considered by the boards. Code language is crafted by the City Attorney's office and is not reviewed by boards and commissions. City Attorney Roy noted final Code language is often not provided to Council when it discusses various issues at a work session. When the Planning and Zoning Board discusses proposed Land Use Code changes, it sometimes only has draft language or concepts to consider and does not have the final Code languages. The timing of the agenda process and the timing of board meetings often dictates whether the final Code language is available, presented in conceptual form or is presented in outline form. Mayor Hutchinson noted the Council is not "flying blind" without any input or information because the City has an experienced, professional staff that provides much information to Council. There is a line between volunteer advisory boards and professional staff. Councilmember Manvel asked how often the numbers in the rate schedule will change. Janonis stated the proposed rate schedule is similar to water and wastewater rates. Only Council can establish rates and authorize all special services agreements that modify rates, fees or charges. The rate schedule will be established annually with other Utility rates. Councilmember Troxell made a motion, seconded by Councilmember Manvel, to adopt Ordinance No. 077, 2009, on First Reading. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. 241 July 7, 2009 Ordinance No. 079, 2009, Authorizing the Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements Related to the Mason Corridor Bus Rapid Transit Project (Phase Two), Adopted on First Reading The following is staff s memorandum for this item. "EXECUTIVE SUMMARY The Mason Express ("MAX'), bus rapid transit project is entering into the right-of-way acquisition phase of the project. Project acquisitions have been broken into three phases. This Ordinance pertains to the second phase (Phase II) and consists ofeighteen distinct property ownerships. Phase I was adopted by Ordinance No. O59, 2009 on June 2, 2009. As a critical, federally funded transportation project, staff requests authorization to utilize eminent domain, if necessary, and only if good faith negotiations break down, in order to ensure a timely acquisition of the necessary property interests. BACKGROUND The Mason Corridor bus rapid transit project, branded Mason Express ( "MAX') is a five mile, north -south byway which extends from Cherry Street on the north, to south of Harmony Road (the site of the new South Transit Center). MAX will link major destinations and activity centers along the City's primary transportation and commercial corridor including, "Old Town, " Colorado State University, Foothills Mall, and South College retail areas. In addition to greatly enhancing the City's north -south transportation movement, MAX will be a significant catalyst for economic growth, both as a short-term stimulus and as a long-term development/re-development driver. The City is targeting a 2011 Fall operation date for the corridor. The project is predominately located within the outside twenty-five feet of the east half of the Burlington Northern Santa Fe Railway (the "BSNF') property. The overall project right-of-way will consist of a combination of property owned by the BNSF, Colorado State University, private land owners, and the City. At present, in addition to the BNSF, Colorado State University, the Colorado State University Research Foundation, and several ditch companies, the project will involve property acquisition from forty-two distinct property owners. Each acquisition is unique, but the typical acquisition need for Phase II of the Project can be characterized as a ten foot permanent easement and a thirty to fifty foot temporary construction easement along the rear of properties adjacent to the project. Fee simple ownership is also needed in a variety of locations to accommodate stations, utilities and other ancillary project improvements. Staff has taken great effort to minimize impacts to property owners and will continue to do so as the project progresses. To accommodate workflow and timing, property acquisitions have been broken into three phases. The secondphase (Phase II) consists ofeighteen distinct property ownerships (see attached location map). Phase III, the remaining seventeen properly ownerships, will come for Council consideration on August 18, 2009. 242 July 7, 2009 In addition to hosting a number of public forums on various aspects of the project, staff has had initial communications with all the property owners along the corridor. Additionally, staff has had property specific communications with the eighteen ownerships in Phase II. Furthermore, all Phase II ownerships have been notified by certified mail ofstaffs intention to request authorization to use eminent domain, if necessary, to acquire project property interests. In all communications staff strongly emphasizes the City's desire to cooperatively work towards achieving a voluntary agreement. To ensure the integrity of the project schedule, maintain certain project efficiencies, and to remain a viable Federal Transit Administration funded project, it is critical that the City have the ability to acquire the property interests in a timely manner. Staff has a high degree of respect and understanding for the sensitivity of the acquisition process and commits to utilizing eminent domain only if absolutely necessary, and only if good faith negotiations are not successful. " Bruce Lockhart, 2500 East Harmony, did not support adoption of this Ordinance because it will give the City Manager a blank check to proceed with eminent domain proceedings against private property owners. Councilmember Manvel asked for an explanation of the eminent domain process. Helen Matson, Real Estate Services Manager, stated the Mason Corridor Project is a federally funded project. A set process is required when using federal funds, including a notification to be sent to private property owners, notifying them of their rights and of the authorization to use eminent domain proceedings. The notice cannot be sent to the property owners until Council has authorized the use of eminent domain. The federal process is intended to protect private property owners and provide due process to the citizens. Official negotiations cannot begin until the notice of interest letter is sent to the property owners. Councilmember Kottwitz asked if there was another time in the process where Council could decide to halt any eminent domain proceedings. Matson stated Council will not consider this item again because the Ordinance gives the City the authority to proceed with eminent domain proceedings, if necessary. City Manager Atteberry noted Council would be informed if any eminent domain proceedings were initiated. City Attorney Roy stated before eminent domain actions can proceed in court, a number of prerequisites must be met. Good faith negotiations must have been attempted. Staff requests authorization of the use of eminent domain if good faith negotiations fail and the authorization is necessary to allow the timetable for the project to still be met. Negotiations continue from start to finish. Council must decide if the property acquisition is important enough to authorize eminent domain proceedings. Councilmember Kottwitz asked if the property owners were aware of the City's interest in their properties. Matson stated open houses have been held for the last two years on the different phases of the Mason Corridor Project. Every owner knows the process the City is following and is aware that Council is being asked to authorize eminent domain proceedings, if needed. 243 July 7, 2009 Mayor Hutchinson noted the use of eminent domain is pursued only as a last resort. He asked for the number of eminent domain proceedings that have been pursued in court. City Attorney Roy noted very few have been required to go through a full hearing. A small percentage of the total number of properties acquisitions have had the proceedings started against the properties. The court process ensures that the property owner is fairly compensated for the property. Councilmember Ohlson noted there has been no abuse of the use of eminent domain in over 35 years. City Manager Atteberry stated staff is cautious in its use of eminent domain and Council has consistently directed that eminent domain be used sparingly and as a last resort. It is used only for projects that are of community -wide benefit and could not occur without the property acquisition. Councilmember Manvel noted the Mason Corridor Project only requires a 10-foot strip of land for right-of-way along various properties that back onto Mason Street. The Project should increase the value of these properties and will benefit the property owners. Matson stated many of the properties will have permanent easements and temporary construction easements and owners will be adequately compensated for use of the property. Councilmember Roy made a motion, seconded by Councilmember Poppaw, to adopt Ordinance No. 079, 2009, on First Reading. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. Council returned to the discussion of item #33 First Reading of Ordinance No. 081, 2009, Amending the Land Use Code to Reduce the Buffer Around Wastewater Treatment Plants. Mayor Hutchinson asked for clarification of the State policy concerning the size of a buffer around a wastewater treatment plant. City Attorney Roy stated the State policy does not apply to the proposed plant under consideration, because the Mulberry Plant is not a new plant and the upgrades are not an expansion of an existing plant. In the future, if there is an expansion of the Plant and the same policy is in place, a 1000-foot buffer would be needed to acquire State approval of the expansion. If the buffer were less than 1000 feet, and the same policy is in place, the City would need to demonstrate adequate odor mitigation measures in order to warrant approval by the State. Mayor Hutchinson asked if the City would be required to provide both a biological filter to minimize odor and protect public health and place a restriction on residential homes in the buffer zone, if a 500-foot buffer zone were put into place. Deputy City Attorney Daggett stated the State evaluates a proposed plant, the processes to be used at the plant, odors and other impacts from the plant and determines if the proposed controls are adequate. If the City were seeking State approval of an expansion of the Mulberry Plant, the State would already be evaluating the controls that were being proposed for the new plant because of existing homes that are located within the buffer zone of the Plant. Councilmember Ohlson asked if the State would be evaluating the Mulberry Plant and if any of the proposed new State regulations will require an evaluation of the Plant. Daggett stated the State will O.. July 7, 2009 not be evaluating the Plant because it is not being expanded in capacity at this time and no permit is required. New regulations relating to discharge permit restrictions and nutrient standards are under consideration by the State and would affect the Plant's discharge, if they are adopted. The current construction at the Plant is not considered to be an expansion and does not require State approval. Councilmember Manvel asked to see a copy of the State's policy. Councilmember Troxell made a motion, seconded by Councilmember Kottwitz, to adopt Ordinance No. 081, 2009 on First Reading. Councilmember Ohlson stated there did not seem to be any need to consider a change to the odor buffer until the construction is completed at the Mulberry Plant. Councilmember Roy stated there were too many unanswered questions about the impacts of changing the odor buffer and there was no hurry to authorize any change. Councilmember Poppaw stated there is no harm in waiting to change the odor buffer and she did not support changing the odor buffer until the upgrades to the Plant are completed to ensure the best decision is made. Councilmember Troxell stated the odor control upgrades being installed at the Plant are utilizing the best technology available and will benefit the residences that already exist within the buffer. Changing the size of the odor buffer would allow more property to be developed, which would benefit the downtown area. Councilmember Kottwitz stated allowing the change to the odor buffer will benefit the entire community by enabling more economic development. Councilmember Manvel stated there was currently no development proposal for the Lincoln Greens property and probably will not happen any time soon. He did not support adoption of the Ordinance. Councilmember Kottwitz asked if a postponement of further consideration of this item could be considered. City Attorney Roy stated Council can choose to support a motion to postpone. Councilmember Kottwitz made a motion, seconded by Councilmember Ohlson, to postpone further consideration of Ordinance No. 081, 2009, until the implementation of the upgrades at the Mulberry Plant. Mr. Shannon asked Council to table the item indefinitely so all parties can clarify the issues and the impacts of changing the odor buffer. City Attorney Roy noted that the item could be postponed indefinitely, with the understanding that it will come back if and when the City Manager, in consultation with the Leadership Team, thinks it is ready for reconsideration by the Council. 245 July 7, 2009 Councilmember Kottwitz amended her motion, seconded by Councilmember Ohlson, to postpone consideration of Ordinance No. 081, 2009, to such time as the City Manager and the Leadership Team have determined the item is ready for reconsideration. Councilmember Poppaw stated postponement was a good compromise and will allow time to resolve the issues. Councilmember Roy asked for more background information before the item is brought for further Council consideration because the request is driven by development interests for economic gain. The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy and Troxell. Nays: none. THE MOTION CARRIED. Other Business Mayor Hutchinson asked Council to give the City Manager and City Attorney direction regarding any actions Council might take to address the issue of the demolition of historical buildings and the impacts of any such Council action. Councilmember Roy stated Council should consider declaring a moratorium on any scrape -offs. He wanted to examine preservation status of older neighborhoods. Any delay in Council action could put neighborhood desires at risk. Design and architectural standards need to be in place to protect neighborhoods. A short-term moratorium could ensure staff is working for the best possible answer. Councilmember Ohlson noted if Council supported a moratorium, it would only be directing staff to develop language for Council to consider about "scrape -offs." Consideration should be given to which areas of the city to apply a moratorium because it would not be appropriate to place a moratorium citywide. Protections should be put into place that ensure buildings are not deliberately damaged to qualify for condemnation. Mayor Hutchinson stated staff should be directed to tell Council the pros and cons of any demolition moratorium and any other options available. City Manager Atteberry clarified that the intent of Council is develop a policy to determine if a proposed scrape -off is appropriate and if the new building fits with the existing character of the neighborhood. Councilmember Roy stated the neighborhood on Park Street did not receive all the information it needed to protect its neighborhood in a timely fashion and he asked what tools a neighborhood can utilize to achieve landmark preservation. Some "scrape -offs" have resulted in new buildings that fit very nicely with their neighborhoods but others are very inappropriate and do not fit into the architecture of the neighborhood. Staff needs to develop a process to facilitate neighborhoods in creating landmark preservation districts and protect architecture. �el July 7, 2009 Councilmember Ohlson stated "pop -ups" and "scrape -offs" can be beneficial to a neighborhood, when they are done right, but a process should be developed to ensure the new building enhances the neighborhood and is not a detriment. Councilmember Poppaw stated a moratorium would assure that a property, such as the one on Park Street, could not be demolished until neighborhood protections are put into place. City Attorney Roy stated there could be other options that are worth considering. One option is an amendment of the demolition delay ordinance that would require all structures over a certain age or in a certain area go through the demolition review process. A moratorium may be the best solution, but it would be good to allow time for other options to be considered before a moratorium is put into place. Mayor Hutchinson stated imposing a moratorium without considering all the options could have some unintended and detrimental consequences. Time should be allowed to consider options. Councilmember Ohlson stated all options need to be considered to avoid unintended impacts that could occur from a moratorium. Jeff Scheick, Director of Planning, Development and Transportation, stated situations can exist where condemnation and demolition are the correct solution. A building may be occupied, but is unsafe and uninhabitable and drastic action needs to occur. A moratorium on all demolition may put some people at risk with regard to public health and safety. The City's Historic Preservation Program is an active program that has much open public engagement and property owner engagement. Staff works closely with the Landmark Preservation Commission. The issue with the historic designation of the Park Street neighborhood is not a systemic problem but was a particular incident that went awry. Mayor Hutchinson summarized Council direction that staff is to bring options regarding the issue of "scrape -offs," including the possibility of a moratorium, and identify other options to solve the problem that arose with the Park Street neighborhood. Staff is to bring its recommendation and the pros and cons of each option for Council consideration at the next regular Council meeting. A long- term issue to be resolved is maintaining the character of older neighborhoods. City Manager Atteberry stated the time line for preparing the agenda for the next Council meeting is very short and he requested Council allow staff to prepare these options for the August 18 meeting. Staff can provide a memo to Council that outlines the options that will be brought forward before the August 18 meeting. Councilmember Ohlson suggested staff prepare an item for Council consideration on August 18 that would require Landmark Preservation Commission review of all demolition projects for an interim period. 241 July 7, 2009 City Attorney Roy stated staff could provide a memo for Council of possible options and recommendations, in conceptual form, before the next meeting so Council could provide more feedback at the end of the next meeting. Any formal action could be considered on August 18. Councilmember Poppaw asked if Council would support the establishment of an Energy Board to support the goals of the Energy Policy and the Climate Action Plan. Councilmember Roy expressed his support for creation of an Energy Board and for creation of a Technology Board to help the City utilize technology to communicate with citizens. Councilmember Ohlson supported Council consideration of the creation of an Energy Board. Councilmember Poppaw asked for a staff analysis of the pros and cons of establishing an Energy Board. The Electric Board has expressed unanimous support for creation of an Energy Board. Councilmember Troxell asked if an Energy Board would replace the Electric Board and if sustainability would be considered. City Manager Atteberry stated the Electric Board and staff need to develop the parameters for an Energy Board. He will discuss the matter with Brian Janonis, Utilities Executive Director, to determine the schedule of the Electric Board and the staff time needed to develop this new board. He will provide a time frame and initial definition of the role of an Energy Board. Mayor Hutchinson noted a work session might be in order to discuss the duties of an Energy Board. Councilmember Poppaw asked if other Councilmembers would support a review of City Code regarding vicious dogs, barking dogs and Humane Society issues. Councilmember Roy supported the review and also requested addressing the dumping of vicious dogs outside the City into the County. City Manager Atteberry stated staff is also interested in reviewing the issue. Adjournment The meeting adjourned at 10:35 p.m. i ATTEST: 1 4 & --� City Clerk 248 Mayor