HomeMy WebLinkAboutMINUTES-02/16/2010-RegularFebruary 16, 2010
COUNCIL OF THE CITY OF FORT COLLINS, COLORADO
Council -Manager Form of Government
Regular Meeting - 6:00 p.m.
A regular meeting of the Council of the City of Fort Collins was held on Tuesday, February 16,
2010, 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, Krajicek, Roy.
Citizen Participation
Rick Price, 1925 Wallenburg Drive, expressed concern regarding the difference between education
and encouragement with respect to agenda Item No. 13, Items Relating to the FC Bikes Program.
He stated he would like to see funds directed more toward education.
Ray Czaplewski, 2012 Huntington Circle, opposed medical marijuana dispensaries (MMDs) in
single-family neighborhoods. He stated MMDs should not be granted home occupation licenses.
Pete Seale, 1837 Scarborough Drive, expressed opposition to medical marijuana dispensaries and
growhouses in single-family neighborhoods, specifically RL, low -density residential, zones.
Melinda Lee, 521 Kim Drive, licensed professional counselor, expressed concern regarding MMDs
and their impact on adolescents in the community.
Dr. Bernard Birnbaum, Poudre Valley Health System and Health District Board Member, expressed
concern regarding the unintended consequences of MMDs, particularly those in residential
neighborhoods.
Dr. Nancy Smith, 420 South Loomis, Center for Family Care, expressed concern regarding the
impact of MMDs and marijuana addiction on youth, including college students.
Kurt Kastein, 3325 Silver Oaks Place, expressed concern regarding the national debt and economy
and encouraged Council to consider not accepting national stimulus money.
Stacy Lynne, 216 Park Street, expressed concern regarding the City's membership in ICLEI.
Dr. Michael Smith, 420 South Loomis, licensed marriage and family therapist, expressed concern
regarding MMDs and their effect on Fort Collins.
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Ray Martinez, 4121 Stoneridge Court, urged Council to use strict zoning regulations regarding
MMDs and noted enforcement will be costly. He expressed concern regarding the national debt.
Joe Rowan, 621 Gilgalad Way, Executive Director of Funding Partners, stated his organization has
been able to provide 149 down payment assistance loans and has been able to finance 36 rental and
owner -occupied housing projects in Larimer County. He expressed support for regional
partnerships.
Rich McDermott, 2219 Tanglewood Drive, First Presbyterian Church, expressed concern regarding
the proliferation of MMDs in Fort Collins. He urged Council to severely restrict both the number
and location of MMDs in Fort Collins.
Dori Mann, 1801 Creekwood Drive, expressed concern regarding MMDs and the availability of
marijuana to Fort Collins' youth. She stated the dispensaries should be kept a great distance from
schools and residential neighborhoods.
Gary Wockner, 516 North Grant, with the Save the Poudre Coalition, thanked Council for all it has
done to help save the Poudre River and encouraged Council to further its efforts.
Bruce Lockhart, 2500 East Harmony Road, expressed concern regarding the FC Bikes Program.
He asked if a cost -benefit analysis has been done regarding this program. ,
Kathleen Bailey, 934 East Ridgecrest, thanked Council for voting against trash districting.
Carrie Gillis, 2213 Timber Creek Drive, thanked Council for voting against trash districting.
Citizen Participation Follow-up
Mayor Hutchinson stated he misspoke during a previous meeting when he stated Fort Collins was
not a member of ICLEI.
Councilmember Kottwitz asked that staff prepare answers to Ray Martinez's questions and asked
that Council consider Fort Collins making a statement against the City accepting stimulus money
in the form of grants.
Councilmember Manvel asked how many home occupation licenses have been granted to MMDs
and noted they may be sales tax licenses rather than home occupation licenses. City Attorney Roy
replied home occupation licenses, in addition to sales tax licenses, have been issued to some medical
marijuana dispensaries. The home occupation provisions in City Code do not permit retail sales.
Proposed regulations would further limit MMDs in residences that have home occupation licenses
by saying they could not have on -site cultivation. There is also a proposed regulation which would
remove MMDs from the categories of home occupations, once the existing licenses have expired.
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Councilmember Manvel stated the increase in national debt and stimulus funds have helped to begin
turning the economy around. He also noted that, should Fort Collins turn down grant monies, it will
not aid the national debt, as another community would.take the grant monies.
Councilmember Troxell thanked the citizens who spoke regarding the effect of MMDs on Fort
Collins' quality of life. He noted the DEA closed a medical marijuana dispensary in Highlands
Ranch and expressed support for the DEA statement that all MMDs are acting illegally. He asked
if Fort Collins was at odds with this opinion. City Attorney Roy replied possession, use, and
distribution of marijuana remains a crime under federal law. The limited medical use of marijuana
by patients and primary care givers has been authorized by Colorado voters. The federal
government makes the judgment call as to when to prosecute producers of marijuana and added Fort
Collins cannot legalize it by regulating it. He stated Council will make the decision to either ban,
regulate, or fully allow MMDs in Fort Collins. Councilmember Troxell stated he would like to see
a community assessment of the impacts of these facilities and potential regulations.
Councilmember Kottwitz asked about public input, including input from health professionals,
regarding the MMD issue. City Manager Atteberry replied the public process would be outlined as
part of the staff presentation when an ordinance comes before Council. He added several
community meetings and focus groups have been held.
Councilmember Ohlson asked when the MMD ordinance would be coming before Council. City
Manager Atteberry replied the first reading of the ordinance will be March 2, 2010 and the City's
webpage contains information regarding the issue.
Councilmember Roy thanked the citizens who spoke and noted the national debt has not reached its
current level just in the last year, but has been a building issue. He noted the federal monies
received by Fort Collins are for all types of projects and asked where the line should be drawn for
accepting federal funds.
Mayor Hutchinson asked for clarification regarding the Mason Street Corridor and noted Fort
Collins' project beat out competition because of its ability to provide transit -enabled economic
health for Fort Collins. He noted the funds for this project were appropriated prior to the federal
stimulus plan.
.City Manager Atteberry stated federal funds would go to other communities should Fort Collins opt
to not compete for them.
Agenda Review
City Manager Atteberry withdrew Item No. 24, Items Relating to Occupancy Limits, for further staff
work. He also asked that Council re -order Item Nos. 25 and 26 and adjourn into executive session
prior to consideration of those items.
Stacy Lynne, 216 Park Street, withdrew Item Nos. 10, 12, and 13 from the Consent Calendar.
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CONSENT CALENDAR
6. Consideration and Approval of the Minutes of the February 2, 2010, Regular Meeting,
Second Reading of Ordinance No. 005, 2010, Appropriating Unanticipated Revenue in the
Capital Projects Fund for the Intersection Improvements Project for Harmony Road and
College Avenue.
The City has received State and Federal funds totaling $747,000, designated for the
construction of improvements to the Harmony Road and College Avenue intersection. This
Ordinance, unanimously adopted on First Reading on February 2, 2010, appropriates those
funds.
Items Relating to the Conveyance of Interests in City -Owned Property Known as Grape
Street for the Benefit of the North College Marketplace Project.
A. Second Reading of Ordinance No. 006, 2010, Authorizing the Conveyance of a
Portion of the City -Owned Property Known as Grape Street to 1908 N. College,
LLC.
B. Second Reading of Ordinance No. 007, 2010, Authorizing the Conveyance of a
Temporary Construction Easement on a Portion of the City -Owned Property Known
as Grape Street to 1908 N. College, LLC.
The North College Marketplace Project ("Project") is a shopping center development that
will include various retail companies and will be anchored by a new King Soopers. The
Project is located at the northeast corner of College Avenue and Willox Street and the north
boundary is the City -owned property known as Grape Street. As part of this Project, Grape
Street access will be eliminated at College Avenue and the developer has included a
permanent access easement through the Project for users of Grape Street. With this change,
these conveyances have been requested by the developer of the North College Marketplace
Project to enhance its development. These Ordinances were unanimously adopted on First
Reading on February 2, 2010.
Second Reading Ordinance No. 008, 2010, Amending the Zoning District Map of the City
of Fort Collins and Classifying for Zoning Purposes the Property Included in Phase Three
of the Southwest Enclave Annexation to the City of Fort Collins, Colorado.
Phase Three of the Southwest Enclave Annexation consists of 1,080 acres and was recorded
on December 31, 2009. This Ordinance, unanimously adopted on First Reading on February
2, 2010, zones Phase Three. The requested zone districts for Phase Three are Low Density
Residential (RL), Urban Estate (UE), Low Density Mixed -Use Neighborhood (LMN), and
Public Open Lands (POL).
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10. First Reading of Ordinance No. 009 2010 Appropriating Unanticipated Grant Revenue in
the General Fund for the Restorative Justice Program
A grant in the amount of $15,000 has been received from the Bohemian Foundation for
salaries associated with the continued operation of the RESTORE Program within
Restorative Justice Services that deals with shoplifting offenses. RESTORE is an alternative
method of holding a young offender accountable by facilitating a meeting with the young
offender, parents/guardians, a victim/merchant representative and members of the
community to determine the harm done by the crime, and what should be done to repair the
harm. In a RESTORE session, participants are educated about how shoplifting harms not
only the merchant, but many other parts of the community. The objective in a RESTORE
session is to help the young offenders understand how their actions affect others, and make
them accountable for the harm caused by their actions. By addressing all concerns in an open
circle, it is hoped that offenders' awareness of how their actions impact others will increase,
and they will make better future decisions. Community volunteers help the young people
understand the harm caused and encourage them to become more productive members of the
community. The young offenders then have 30 to 60 days to complete contract obligations
designed to repair the harm to victim, community, family and self, after which they return
for a completion interview with community volunteers. Upon program completion, charges
against an offender may be dismissed or not filed.
11. First Reading of Ordinance No. 010 2010 Appropriating Proceeds from the Issuance of City
of Fort Collins. Colorado, Wastewater Utility Enterprise Sewer Revenue Refunding Bonds,
Series 2010A, in the Maximum Aggregate Principal Amount of $4 100 000 in the
Wastewater Utility Fund.
After the regular Council meeting, the Board of the Wastewater Utility Enterprise will
consider an ordinance which authorizes the issuance of City of Fort Collins Colorado,
Wastewater Utility Enterprise, Sewer Revenue Refunding Bonds, Series 2010A, in the
Maximum Aggregate Principal Amount of $4,100,000. The Bonds will be issued to refund,
pay and discharge all of the outstanding Sewer Revenue Bonds, Series 2000.
12. Items Relating to the FC Bike Library Program
A. Resolution 2010-007 Authorizing the Mayor to Enter into an Intergovernmental
Agreement with the State of Colorado Department of Transportation for the Purpose
of Obtaining a Congestion Mitigation and Air Quality Grant in Support of the FC
Bike Library Program.
B. First Reading of Ordinance No. 011, 2010, Appropriating Unanticipated Grant
Revenue in the Transportation Services Fund to Be Used for the 2010-2011 Fort
Collins Bike Library Program.
The Fort Collins Bike Library Program (FCBL) has been awarded Congestion Mitigation
& Air Quality (CMAQ) grant funding from the North Front Range Metropolitan Planning
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Organization and the Colorado Department of Transportation for work to be completed FY
2010 and 2011. The City of Fort Collins contracts with Bike Fort Collins, a local non-profit
cycling organization, to manage and operate the FCBL. The Fort Collins Bike Library
Program includes the continual improvement, refinement, and expansion of the Bicycle
Library Program and services. These activities include improving marketing and operational
practices. Expansion includes incorporating additional bicycles and check-out stations into
the FCBL Program and incorporating additional community partners such as schools,
businesses, and non-profit organizations.
13. Items Relating to the FC Bikes Program.
A. Resolution 2010-008 Authorizing the Mayor to Enter into an Intergovernmental
Agreement with the State of Colorado Department of Transportation for the Purpose
of Supporting the City's Fc Bikes Program for the Fiscal Year 2010-2011 Funding
Period Utilizing Congestion Mitigation and Air Quality Funds.
B. First Reading of Ordinance No. 012, 2010, Appropriating Unanticipated Grant
Revenue in the Transportation Services Fund to Be Used for the 2010-2011 Fort
Collins Bikes Program.
The City of Fort Collins' FC Bikes Program has been awarded Congestion Mitigation & Air
Quality (CMAQ) grant funding from the North Front Range Metropolitan Planning
Organization and Colorado Department of Transportation. Using these FY2010-11 federal
funds, the City's FC Bikes Program takes a comprehensive approach to building the City's
bicycle program. The refinement and expansion of the FC Bikes Program includes
improving community outreach and operational practices to increase bicycling while
integrating safety components in a comprehensive manner throughout all of the
programmatic activities. Expansion elements include adding new events, campaigns,
programs, and a regional coordination component to improve safety and to increase the
number of people bicycling throughout the community as well as commuting to and from
Fort Collins and neighboring communities.
14. First Reading of Ordinance No. 013, 2010, Approving an Amendment to the Fort Collins-
Timnath Intergovernmental Agreement Regarding Cooperation on Annexation, Growth
Management, and Related Issues, Extending the Deadline for the City of Fort Collins to
Accomplish an Amendment to the City's Growth Management Area Boundary and
Extending the Deadline for the Town of Timnath to Exercise an Option to Buy the City -
owned Vangbo Open Space Property.
On February 17, 2009, the City of Fort Collins and the Town of Timnath entered into an
intergovernmental agreement regarding annexations, growth management, and related
issues. The agreement resolved certain differences that had arisen between the City and
Town concerning a variety of planning and growth management issues. The agreement set
one-year deadlines for the City to amend its Growth Management Area boundary and for the
Town to exercise a purchase option to acquire the City -owned Vangbo Open Space property.
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Ordinance No. 013, 2010, would extend those deadlines for six months (with the possible
extension for an additional six months) and one year respectively.
15. First Reading of Ordinance No. 014 2010 Vacating a Portion of Corbett Drive Right-of-
way as Dedicated on the Plat of Front Range V, illaee.
The center of the roundabout at Corbett Drive and Council Tree Avenue in the Front Range
Village Shopping Center, located at the northeast corner of Ziegler Road and Harmony
Road, is proposed for vacation. The shopping center desires to place a Christmas tree and
other decorations in the landscaped area of the roundabout during the holiday season. The
City's holiday policy does not allow for this. Therefore, Front Range Village has proposed
that the center of the roundabout be vacated.
16. Resolution 2010-009 Adopting the Recommendations of the Cultural Resources Board
Regarding Fort Fund Disbursements.
The Cultural Development and Programming and Tourism Programming accounts (Fort
Fund) provide grants to fund community events. This Resolution will adopt the
recommendations from the Cultural Resources Board to disburse these funds.
17. Resolution 2010-010 Ratifying the Reappointment ofRobin Gard to the Poudre River Public
Library District Board of Trustees.
Resolution 2007-026 ratified the initial appointments to the Library Board of Trustees on
March 6, 2007. Seven Trustees were appointed to the Board with initial terms ranging from
1 to 5 years. The initial term of Trustee Robin Gard expires on March 6, 2010 and she needs
to be reappointed to the Board or replaced. The Library Trustee Selection Committee,
comprised of Councilmembers Manvel and Poppaw and Larimer County Commissioners
Gaiter and Johnson, unanimously recommends the reappointment of Robin Gard to the
Library Board of Trustees for a four-year term.
18. Routine Deed.
A. Deed of Dedication from 1802 North College Investments, LLC, for a small strip of right-of-
way as part of the City's North College Avenue and Willox Lane Intersection Improvement
Project next to the North College Marketplace development. Monetary consideration: $10.
***END CONSENT***
Ordinances on Second Reading were read by title by City Clerk Krajicek.
7. Second Reading of Ordinance No. 005, 2010, Appropriating Unanticipated Revenue in the
Capital Projects Fund for the Intersection Improvements Project for Harmony Road and
College Avenue.
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February 16, 2010
8. Items Relating to the Conveyance of Interests in City -Owned Property Known as Grape
Street for the Benefit of the North College Marketplace Project.
A. Second Reading of Ordinance No. 006, 2010, Authorizing the Conveyance of a Portion of
the City -Owned Property Known as Grape Street to 1908 N._College, LLC.
B. Second Reading of Ordinance No. 007, 2010, Authorizing the Conveyance of a Temporary
Construction Easement on a Portion of the City -Owned Property Known as Grape Street to
1908 N. College, LLC.
9. Second Reading Ordinance No. 008, 2010, Amending the Zoning District Map of the City
of Fort Collins and Classifying for Zoning Purposes the Property Included in Phase Three
of the Southwest Enclave Annexation to the City of Fort Collins, Colorado.
Ordinances on First Reading were read by title by City Clerk Krajicek.
11. First Reading of Ordinance No. 010, 2010, Appropriating Proceeds from the Issuance of City
of Fort Collins, Colorado, Wastewater Utility Enterprise, Sewer Revenue Refunding Bonds,
Series 2010A, in the Maximum Aggregate Principal Amount of $4,100,000, in the
Wastewater Utility Fund.
14. First Reading of Ordinance No. 013, 2010, Approving an Amendment to the Fort Collins-
Timnath Intergovernmental Agreement Regarding Cooperation on Annexation, Growth
Management, and Related Issues, Extending the Deadline for the City of Fort Collins to
Accomplish an Amendment to the City's Growth Management Area Boundary and
Extending the Deadline for the Town of Timnath to Exercise an Option to Buy the City -
owned Vangbo Open Space Property.
15. First Reading of Ordinance No. 014, 2010, Vacating a Portion of Corbett Drive Right-of-
way as Dedicated on the Plat of Front Range Village.
Councilmember Manvel made a motion, seconded by Councilmember Troxell to adopt and approve
all items on the Consent Calendar as modified. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson,
Poppaw, Roy and Troxell. Nays: none.
THE MOTION CARRIED.
Consent Calendar Follow-up
Councilmember Poppaw thanked Robin Gard for her service on the Poudre River Public Library
District Board of Trustees and noted she was reappointed by Resolution 2010-010.
Councilmember Manvel thanked the Cultural Resources Board and cultural groups for their
contributions to Fort Collins and noted the Cultural Resources Board works hard to appropriately
distribute Fort Fund funds.
February 16, 2010
Staff Reports
Steve Catanach, Light and Power Operations Manager, stated a feed -in tariff is a purchase power
agreement, usually for 15 or 20 years, between a utility and a generator, typically a renewable
energy generator. The pricing is typically set at a high enough level to incentivize that generator
to go into the business. Catanach discussed how Gainesville, Florida has incorporated this program
and the potential costs to Fort Collins to incorporate a similar program, which staff does not believe
to be in the best interest of the city.
Councilmember Roy asked what other communities are using feed -in tariffs. Catanach stated the
Sacramento Municipal Utility District has a very complicated rate schedule which basically keeps
the price lower and caps the amount of generation, making feed -in tariffs more attractive.
Councilmember Reports
Councilmember Poppaw stated she participated in the Habitat for Humanity appreciation dinner and
noted the City participates through CDBG funds for land acquisition.
Resolution 2010-011
Rescinding Prior Activities Related to a Pilot Trash and Recycling
Services District and Directing the City Manager to
Pursue Other Alternatives for Mitigating the
Effects of Trash Collection Services and Improving Diversion Rates Adopted
The following is staff s memorandum for this item.
"EXECUTIVE SUMMARY
On February 2, 2010, City Council held a public hearing regarding the proposed Trash Services
Pilot District. Following the hearing, Council directed staff to prepare a resolution which would
end further consideration of the proposed District. Council's consensus was that it will not pursue
Trash Districting, and will direct staff to do no further work on the proposal. Staff will
also close out the Request for Proposals process by declining to implement the negotiated contract.
BA CKGRO UND/DISCUSSION
Over the past two years, City Council has been examining a variety of issues related to Trash
Services in Fort Collins. Through a series of work sessions during 2008 and 2009, City Council
considered a variety of actions aimed at addressing a two part problem statement:
"In what ways can the City reduce the impacts of trash collection services in Fort
Collins, addressing issues of the cost of street wear, air quality, neighborhood
aesthetics, noise, and other neighborhood impacts?
"Are there ways that the City might also improve diversion rates for recyclables? "
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In May, 2009, City Council adopted several changes to the City Code related to Pay -as -you -throw
trash pricing, reporting requirements and a requirement for haulers to offer customers large -sized
recycling poly -carts. These code changes were implemented between September 2009 and January
2010.
Council also directed staff to develop a proposal to implement a Trash Services Pilot District in the
northwest portion of Fort Collins. On July 21, 2009, the City Council adopted Resolution 2009-075,
directing the City Manager to complete a Request for Proposals (RFP) process for services with a
trash hauler, and develop a proposed contract for those services, along with a proposal for a trash
and recycling collection services fee to be imposed within the Pilot District.
On February 2, 2010, City Council heard a report on the outcome of the RFP process and was made
aware that the City Manager had signed a contract with Waste Management of Northern Colorado
to provide service in the proposed District. The contract was agreed upon, contingent upon City
Council approval of the Trash Services Fee and appropriation of funds to provide the service.
In addition to hearing the report on the outcome of the RFP process, City Council conducted a
Special Public Hearing on February 2 regarding the proposal. Approximately 400 residents
attended the hearing and 73 spoke to the Council, largely in opposition to the proposal.
Following the Special Public Hearing, City Councilmembers discussed the proposal and their
individual opinions of it. Each of the Councilmembers spoke in opposition to the proposal, and
expressed a desire that staff prepare a resolution ending further consideration of the Pilot Trash
District for Council action. City Councilmembers expressed a desire to take no further action
toward implementation of a system for City trash and recycling collection services in the Pilot
District and to cease any further expenditure or use of City resources in analyzing or developing
plans or proposals for districted trash and recycling collection services in Fort Collins.
This Resolution formally directs staff to stop work on the proposal and states Council 's intent not
to pursue Trash Districting in the future. The Resolution also directs staff to not pursue any other
form of City -owned or managed trash collection utility. "
Ann Tumquist, Policy and Project Manager, stated this is a follow-up item to the February 2, 2010
Special Public Hearing held by City Council. She stated Council directed staff to discontinue work
on this project and not bring forth any further action regarding the proposed pilot trash district. The
Resolution directs staff to continue work related to solid waste diversion goals.
Ross Cunniff, 2267 Clydesdale, expressed agreement with the Resolution.
Stacy Lynne, 216 Park Street, expressed concern regarding Councilmembers Poppaw and Roy and
asked that they resign.
Vivian Armendariz, 820 Merganser Drive, stated the City should have found a larger facility for the
pilot trash district hearing and should have made arrangements for citizens to testify remotely.
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Councilmember Troxell made a motion, seconded by Councilmember Kottwitz, to adopt Resolution
2010-011.
Councilmember Ohlson asked that the word "districted" be inserted in the Resolution with respect
to recycling collection services. City Attorney Roy replied the insertion of the word would do no
harm, though he does not believe it necessary.
Councilmember Troxell suggested Section 3 of the Resolution should only discuss the waste stream
analysis which has been approved in this year's budget.
Councilmember Ohlson disagreed, stating he fully supports Section 3.
Councilmember Troxell stated there are many different types of truck traffic on City streets and it
is not logical to blame any street problems solely on the trash collection industry.
Councilmember Troxell made a motion, seconded by Councilmember Kottwitz, to amend Section
3 of the Resolution to direct the City Manager to pursue a waste stream analysis that has been
approved in the current budget.
Councilmember Ohlson asked if the amendment is to be an addition or substitution in Section 3.
Councilmember Troxell replied it is to be a substitution. Councilmember Ohlson stated he would
oppose that amendment.
Councilmember Manvel stated a waste stream analysis is appropriate but it is more important to
work on other ways to decrease solid waste and increase recycling. He stated he would oppose the
amendment.
Mayor Hutchinson expressed confusion as to why the section was included in the Resolution at all.
Councilmember Ohlson stated it had been included because, though all members of Council agreed
to not move forward with trash districting, there is still more work to be done in terms of solid waste
reduction, recycling, and impact in neighborhoods due to waste collection. He stated the section
absolutely needs to be included.
Mayor Hutchinson reminded Council that any issue could be brought before Council at a future
time, therefore the section is not necessary..
Councilmember Poppaw stated the section acknowledges what was heard by citizens and the
Gallegos Company in terms of its commitment to reducing solid waste.
Councilmember Troxell stated he would like to see individual items brought forth by
Councilmembers or staff for consideration rather than including them in this Resolution.
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February 16, 2010
Councilmember Roy stated Section 3 reflects the opinions of many of the citizens who spoke at the
public hearing and did not support any substitution, though he would accept Councilmember
Troxell's amendment as an addition.
Mayor Hutchinson stated the Section is irrelevant.
Councilmember Manvel stated the Section would direct staff to keep working on the issues.
City Manager Atteberry noted the waste stream analysis has been funded and it will be underway
in 2010 unless Council disagrees.
Councilmember Troxell stated Council should base what it does on firm reason and fact and the
opinions of constituents.
Councilmember Kottwitz stated the trash districting proposal was an example of the City
overstepping its bounds and Section 3 could be more of the same.
Councilmember Ohlson noted that 90% of the country has some form of trash districting; most of
the remaining communities regulate the industry in some way. As long as they do not overreach,
there is a precedent for communities to regulate private businesses.
Councilmember Roy read Section 3 of the Resolution and expressed agreement with leaving the text
in the Resolution.
Mayor Hutchinson stated the Section does not belong in the Resolution and added the waste stream
analysis does not need to be included as it has already been funded.
The vote on the motion was as follows: Yeas: Kottwitz and Troxell. Nays: Hutchinson, Manvel,
Ohlson, Poppaw and Roy.
THE MOTION FAILED.
Councilmember Kottwitz made a motion, seconded by Councilmember Troxell, to eliminate Section
3 from Resolution 2010-011.
Councilmember Manvel stated removing Section 3 would direct staff not to continue to evaluate
trash issues. He stated he would not support the motion.
Mayor Hutchinson stated the Section is irrelevant in terms of discontinuing staff s work regarding
trash districting.
Councilmember Ohlson asked if it would be possible to add a separate Resolution on to the agenda
which would have identical wording to Section 3 of Resolution 2010-011. City Attorney Roy
replied it would be possible; however, without having given appropriate public notice, Council
would need to find it would be contrary to the public interest to postpone consideration of the item.
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February 16, 2010
He suggested Councilmembers could express their desire that particular action be taken during Other
Business and a separate Resolution or action item could be prepared by staff.
Councilmember Ohlson stated that was not sufficient and stated he would not vote to eliminate
Section 3.
The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz and Troxell. Nays: Manvel,
Ohlson, Poppaw and Roy.
THE MOTION FAILED.
Councilmember Troxell stated this Resolution is a victory for the citizens of Fort Collins and stated
he would be supporting the Resolution as a whole.
Councilmember Kottwitz encouraged citizens to continue to make their voices heard.
Councilmember Manvel noted citizens do not make the decisions; Council uses information it is
given and makes decisions.
Mayor Hutchinson expressed pride in the citizens for attending the special public hearing and in
Councilmember for taking the information and making decisions.
The vote on the motion was as follows: Yeas: Hutchinson, Manvel, Ohlson, Kottwitz, Poppaw,
Troxell and Roy. Nays: none.
THE MOTION CARRIED.
Consideration of the Appeal to City Council of the Landmark Preservation
Commission's December 9, 2009 Denial of the Appellant's Request to
Install "Hardie Plank" Fiber Cement Siding on the Historic Rigden Farm Barn,
Landmark Preservation Commission Decision Upheld
The following is staffs memorandum for this item.
"EXECUTIVE SUMMARY
On December 9, 2009, the Landmark Preservation Commission considered a Conceptual and Final
Review of a proposal to allow fiber cement siding ("Hardie Plank') to be installed over the historic
wood siding of the Henry Jessup/ Cal Johnson Barn, a designated Fort Collins Landmark located
at 2902 Rigden Parkway. The Landmark Preservation Commission considered testimony from the
applicant, the public and staff, and unanimously denied the request.
The Appellant, representing the Rigden Farm Master Association, filed a Notice of Appeal with the
City Clerk's Office on December 23, 2009, seeking redress of the action of the Landmark
Preservation Commission which is the subject of this appeal.
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BA CKGR O UND/DIS C USSION
The Henry Jessup/Cal Johnson Farm, commonly referred to as the Rigden Farm, is comprised of
a Craftsman style farmhouse, gambrel roof barn, historic garage, chicken coop, and bunk house.
The distinctive masonryfarmhouse and large wood barn were both built circa 1919. In 2000, the
farm buildings were relocated a short distance from their original location at the corner of
Timberline and Drake Roads to 2902 Rigden Parkway, to accommodate the Rigden Farm mixed use
development project and the capital project to widen Timberline Road. Following the relocation
of the buildings, Council adopted Ordinance No. 141, 2000, designating the farm as a Fort Collins
Landmark in recognition of the buildings' architectural importance. In 2001, the barn was
adaptively rehabilitated for use as a meeting room.
The Appellant wants to clad over the barn 's existing historic wood siding with new fiber cement
siding, called "Hardie Plank. " Staff believes that the siding should be repaired rather than
replaced or covered over, and further believes that the use of "Hardie Plank "fiber cement material
in this instance would not comply with the requirements of Section 14-48(b); the Commission agreed
with the staff and denied this application.
Preservation staff visited the site in November 2009, and found the barn to be in relatively good
condition. It does require maintenance, consisting of repair work to patch portions of the siding and
fresh paint.
ACTION OF THE LANDA RKPRESERVATION COMMISSION
At the December 9, 2009 regular meeting of the Landmark Preservation Commission, the
Commission made the following findings of fact and conclusions:
1. The proposed work is not in accordance with Chapter 14, Article III (b)(1) because the
proposed work would alter and diminish the historical and architectural character of the
landmarked buildings.
2. The proposed covering of the historic fabric and associated features with a skin, and
removing historic windows, will adversely affect the arrangement, texture and materials of
the existing historic buildings, and their consistency and relationship to each other, which
is not in accordance with Chapter 14, Article III (b)(2).
3. The proposed work is not in accordance with Chapter 14, Article III (b)(3), as covering the
historic structures with new materials, as proposed, would give the buildings an appearance
similar to the non -historic structures in the modern Rigden Farm development, adversely
affecting the buildings' ability to be recognized as a physical record of their true, historic
time, and would instead create a false sense of the time in which the buildings were
constructed and which they are purported to reflect.
4. The proposed work is not in accordance with Chapter 14, Article III (b)(4) because placing
a new skin over the existing historic structure could lead to damage to the historic structures
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and their character definingfeatures from nail penetration as well as from moisture seepage
and vermin infestation that could not be easily detected.
5. The proposed work is not in accordance with Chapter 14, Article III (b)(5) because it does
not meet the Secretary of the Interior's Standards for Rehabilitation. Specifically, the
proposed work does not meet:
a. Standard Number 2 since it would remove the historic windows and it would cover
features that characterize the property;
b. Standard Number 3 since, as the applicant stated at the November 18, 2009
Landmark Preservation Commission meeting, covering the historic structures with
new materials, as proposed, would give the buildings the same appearance as the
non -historic structures in the modern Rigden Farm development that surrounds the
landmarked buildings;
C. Standard Number 5 since it would remove the historic windows, and it would cover
other distinctive features, specifically the historic siding that covers the facades and
all other exterior walls of the landmarked structures. This Standard means that the
distinctive features, finishes and construction techniques or examples of
craftsmanship that characterize a property shall be preserved visually, as well as
physically. Covering a historic structure or its distinctive features so that they are
removed from sight does not preserve the historic features, etc. as specified in this
Standard;
d. Standard Number 6 since the condition of the historic fabric is such that repair is
warranted, rather than replacement, and that theproposal would replace the historic
windows rather than repair them. The exterior walls and their materials are
distinctive features that should also be repaired, rather than be replaced with a new
exterior skin that would not match the historic materials;
e. Standard Number 9 as the proposed exterior alterations will destroy historic
materials and could lead to damage to the historic structures from nails, moisture
penetration and vermin infestation that could not be easily detected.; and
f. . Standard Number 10 as the proposed new construction could not be removed without
damage to the historic property, and, if it is removed, the historic windows, a
character defining feature, would no longer exist.
6. The Commission considered the testimony of the applicant, the public and staff, and voted
6-0 to deny the request.
ALLEGATIONS OFAPPEAL
On December 23, 2009, a Notice of Appeal was received by the City Clerk's Office from the
representative of the Rigden Farm Master Association.
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The Appellant alleges that:
1. The property should not be a historic landmark, and so the Commission did not have the
authority to consider the item.
2. The Commission failed to conduct a fair hearing.
3. The Commission failed to properly interpret and apply relevant provisions of the Code and
Charter.
QUESTIONS COUNCIL NEEDS TO ANSWER
1. Did the Landmark Preservation Commission have the authority to hear the item?
2. Did the Landmark Preservation Commission fail to hold a fair hearing?
3. Did the Landmark Preservation Commission fail to properly interpret and apply relevant
provisions of the Code and Charter?
SUMiVARY OF RELEVANT ISSUES
List of Relevant Code Provisions, and Staffs Response as to Whether the Application Meets the
Code Provision
The applicable Code provision is Section 14-48. Section 14-48(a) introduces the subject by stating
that applications should be evaluated as to whether the proposed work is of a nature that will not
erode the authenticity or destroy any distinctive exteriorfeature ofthe historic structure. Subsection
(b) is the criteria that the Commission is to use in making that evaluation:
Sec. 14-48. Approval of proposed work.
(a) If upon the receipt of an application... the Commission finds that the proposed work is of a
nature which will not erode the authenticity or destroy any distinctive exterior feature or
characteristic...
(b) In determining the decision to be made concerning the issuance of a report of acceptability,
the Commission shall consider the following criteria:
(1) The effect of the proposed work upon the general historical and/or architectural
character of the landmark or landmark district; Staff believes the proposed work
would alter and diminish the historical and architectural character of the
landmarked buildings.
(2) The architectural style, arrangement, texture and materials ofexisting and proposed
improvements, and their relation to the sites, structures and objects in the district;
Staff believes that covering the historic fabric and removing historic windows will
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adversely affect the arrangement, texture and materials of the existing historic
buildings, and their consistency and relationship to each other.
(3) The effects of the proposed work in creating, changing or destroying the exterior
characteristics of the site, structure or object upon which such work is to be done;
Staff believes that the proposed work would change and/or destroy character
defining features of the landmarked buildings. Specifically, the proposed work
would alter or destroy the original fabric of the historic windows, and alter the
historic appearance of the structures ' exterior wood siding, which would be hidden
under a new skin. In addition, placing a new skin over the existing historic
structures could lead to unwarranted damage to the historic structures, from nails,
moisture penetration and vermin infestation that could not be easily detected.
(4) The effect of the proposed work upon the protection, enhancement, perpetuation and
use of the landmark or landmark district; Staff believes that placing a new skin over
the existing historic structure could lead to damage to the historic structures and
their character definingfeatures from nails as well as from moisture penetration and
vermin infestation that could not be easily detected.
(5) The extent to which the proposed work meets the standards of the city and the United
States Secretary of the Interior then in effect for the preservation, reconstruction,
restoration or rehabilitation of historic resources. Staff believes that the proposed
work does not meet the Secretary of the Interior's Standards for Rehabilitation, as
discussed below.
Secretary of the Interior's Standards for the Treatment of Historic Properties
There are four distinct, but interrelated, approaches to the treatment of historic properties —
Preservation, Rehabilitation, Restoration, and Reconstruction. Each ofthe four treatments is briefly
described below:
"Preservation means the act orprocess of applying measures necessary to sustain the existingform,
integrity and materials of an historic property. Work, including preliminary measures to protect
and stabilize the property, generally focuses upon the ongoing maintenance and repair of historic
materials and features rather than extensive replacement and new construction. New exterior
additions are not within the scope of this treatment; however, the limited and sensitive upgrading
Of mechanical, electrical and plumbing systems and other code -required work to make properties
functional is appropriate within a preservation project. " A Fort Collins example of a project
following the Standards for the "Preservation " Treatment is the Avery House.
"Rehabilitation means the act or process of making possible an efficient compatible use for a
property through repair, alterations and additions while preserving those portions or features that
convey its historical, cultural or architectural values. " The great majority of projects in Fort
Collins fall under the Rehabilitation Treatment, and are reviewed according to the Standards for
Rehabilitation.
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"Restoration means the act or process of accurately depicting the form, features and character of
a property as it appeared at a particular period of time by means of the removal offeatures from
other periods in its history and reconstruction of missing features from the restoration period. The
limited and sensitive upgrading of mechanical, electrical and plumbing systems and other code -
required work to make properties functional is appropriate within a restoration project. " An
example ofprojects following the Standards for "Restoration " is the accurate reconstruction of the
missing full -width porch on the Spencer House at 425 East Elizabeth Street, undertaken in 1995;
or the 1980s rebuilding of the hose tower on the old firehouse on Walnut Street.
"Reconstruction means the act or process of depicting, by means of new construction, the form,
features and detailing of a non -surviving site, landscape, building, structure or object for the
purpose of replicating its appearance at a specific period of time and in its historic location. " An
example of Reconstruction would be a project to rebuild the Strauss Cabin at its site on the
Environmental Learning Center, lost due to an arson fire.
In choosing the appropriate Treatment, staff considers the property's historical significance,
physical condition, use, and intended interpretation. Staffdetermined that the appropriate treatment
for the Commission's consideration of this request was "Rehabilitation. " This treatment has ten
Standards. All ten Standards must be met.
The Secretary of the Interior's Standards for Rehabilitation, and Staffs Assessment as to
Whether the Criteria Was Met
Standard 1. A property shall be used for its historic purpose or be placed in a new use that
requires minimal change to the defining characteristics of the building and its site
and environment. Staff believes that the barn's 2001 adaptive reuse as a meeting
room or club house meets this Standard. No new use is proposed.
Standard 2. The historic character of a property shall be retained and preserved. The removal
of historic materials or alteration offeatures and spaces that characterize a property
shall be avoided. Staff believes the proposed project does not meet this Standard,
as it would remove the historic windows and would cover historic features that
characterize the property.
Standard 3. Each property shall be recognized as a physical record of its time, place, and use.
Changes that create a false sense of historical development, such as adding
conjectural features or architectural elements from other buildings, shall not be
undertaken. Staff believes that the project would not meet this Standard since, as the
applicant noted at the November 18, 2009 Landmark Preservation Commission
meeting, covering the historic structures with new materials, as proposed, would
give the buildings an appearance similar to the non -historic structures in the modern
Rigden Farm development, adversely affecting the buildings' ability to be recognized
as a physical record of their historic time, and create a false sense of the time in
which the buildings were constructed.
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Standard 4. Most properties change over time; those changes that have acquired historic
significance in their own right shall be retained and preserved. Staff believes that
Standard Number 4 is not applicable to this project.
Standard S. Distinctive features, finishes, and construction techniques or examples of
craftsmanship that characterize a property shall be preserved. Staffbelieves that the
proposed work does not meet this Standard, as it involves removing the historic
windows, and it would cover distinctive materials and features, specifically the
--Historic siding that covers -all -of the exterior walls of the landmarked structures..
This Standard means that the distinctive features, finishes and construction
techniques or examples of craftsmanship that characterize a property shall be
preserved visually, as well as physically. Covering a historic structure or its
distinctive features so that they are removed from sight does not fulfill the meaning
of preserve the historic features, etc. as specified in this Standard.
Standard 6. Deteriorated historic features shall be repaired rather than replaced. Where the
severity of deterioration requires replacement of a distinctive feature, the new
feature shall match the old in design, color, texture, and other visual qualities and,
where possible, materials. Replacement of missing features shall be substantiated by
documentary, physical, or pictorial evidence. Staff believes that the proposed work
does not meet this Standard. The material's level of deterioration is not to the extent
that replacement is needed. The proposed work would remove, rather than repair,
the historic windows. The exterior walls and their materials are distinctive historic
features that should also be repaired, as needed, rather than replaced or covered
with a new exterior of materials that do not match the historic materials.
Standard 7. Chemical orphysical treatments, such as sandblasting, that cause damage to historic
materials shall not be used. The surface cleaning of structures, if appropriate, shall
be undertaken using the gentlest means possible. Staff believes Standard Number
7 is not applicable to this project.
Standard 8. Significant archeological resources affected by a project shall be protected and
preserved. If such resources must be disturbed, mitigation measures shall be
undertaken. Staff believes Standard Number 8 is not applicable to this project.
Standard 9. New additions, exterior alterations, or related new construction shall not destroy
historic materials that characterize the property. The new work shall be
differentiated from the old and shall be compatible with the massing, size, scale, and
architectural features to protect the historic integrity of the property and its
environment. Staff believes the proposed work does not meet this Standard because
the proposed exterior alterations will destroy historic materials and could lead to
damage to the historic structures from nails, moisture penetration and vermin
infestation that could not be easily detected.
Standard 10. New additions and adjacent or related new construction shall be undertaken in such
a manner that if removed in the future, the essential form and integrity of the historic
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property and its environment would be unimpaired. Staff believes the proposed
project does not meet this Standard since the proposed new construction could not
be removed without damage to the historic property, and, if removed, the historic
windows, a character defining feature, would no longer exist.
SUM11ARY OF RELEVANT ISSUES AND STAFFS ANALYSIS AND CONCL USION
The Notice of Appeal from the representative of the Rigden Farm Master Association alleges the
following issues and staff offers the subsequent analysis and response based on the record:
• Specific allegation that the property should not be a historic landmark, and staffs
response:
Allegation #1
The Appellant alleges that the Landmark Preservation Commission erred in taking this item under
consideration, as the property should not be considered a Fort Collins Landmark.
Staff Response
The Landmark Preservation Commission did not err. At the request of Rigden Farm, LLC, the
Appellant's predecessor in interest, the farm property was designated by the Council as a Landmark
on November 7, 2000, by Ordinance No. 141, 2000. The question ofdesignation, and the allegation
of "inverse condemnation, " was not properly before the Commission.
• Specific allegations that the Landmark Preservation Commission did not hold a fair
hearing, and staffs response:
Allegation #1
The Appellant alleges that the Landmark Preservation Commission failed to conduct a fair hearing
because the Commission erred by applying the City's Code and regulations on property that has not
been explained or supported with specific facts or evidence.
Staff Response
The Commission did not err. The record reflects that specific facts pertaining to the new proposed
siding were well explained to the Commission, and the Commission was familiar with its regulatory
code and Secretary of Interior Standards.
Allegation #2
The Appellant alleges that the Landmark Preservation Commission failed to conduct a fair hearing
because the Commission erred in its consideration since the information was provided at the
hearing, rather than prior to the hearing, and was too technical for an adequate review at the
hearing.
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Staff Response
The Commission did not err. Evidence is to be received by the Commission only at the hearing and
was the type of evidence that is well within the competence of the Commission and its expertise to
consider. The record reflects that the Appellant had ample time to present its arguments to the
Commission.
• Specific allegations that the Landmark Preservation Commission failed to properly
interpret and apply City Code, and staffs response:
Allegation #1
The Appellant alleges that the Landmark Preservation Commission failed to correctly apply the
criteria in Chapter 14, Article III, Section 14-48(b), of the City Code, because the Appellant was
misled by City staff that economics can not be a factor in the Commission's decisions.
Staff Response
The Commission did not err. The Commission is familiar with the Secretary of Interior Standards,
and has the ability to take into consideration the economic and technical feasibility of a project.
During the hearing, City staffspecifically stated that the Secretary oflnterior Standards "do offer
some leeway and talk about reasonable accommodations for things such as ... economics and
technical issues. " (December 9, 2009 Landmark Preservation Commission Meeting Minutes, page
5)
Allegation #2
The Appellant alleges that the Landmark Preservation Commission failed to correctly apply the
criteria in Chapter 14, Article III, Section 14-48(b), of the City Code, because the Appellant was
misinformed as to when funds available for repairs needed to be refunded.
Staff Response:
The Commission did not err. Grant and loan program specifics, including repayment, were not
discussed at the hearing. Information on the Landmark Rehabilitation Loan Program was provided
to the Appellant some time prior to the hearing, and did not, according to the record, have any effect
on the outcome of the hearing.
Allegation #3
The Appellant alleges that the Landmark Preservation Commission failed to correctly apply the
criteria in Chapter 14, Article III, Section 14-48(b), of the City Code, because the difference in
treatment for repayment of Landmark Rehabilitation Loan Program fund between non-profit and
for profit entities appears to have no justifiable reason.
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Staff Response
The Commission did not err. Landmark Rehabilitation Loan Program specifics, including the
difference in repayment of Program fund between non-profit and for profit, were not discussed at
the hearing.
Allegation #4
a. The Appellant alleges that the Landmark Preservation Commission failed to correctly apply
the criteria in Chapter 14, Article III, Section 14-48(b), of the City Code, because the
Commission failed to support its findings with specific findings. of facts. The Appellant
maintains that the Commission's decision is a general f nding without specific examples.
Staff Response
The Commission did not err. Specific facts justifying the Commission's Findings were provided in
the December 9, 2009 Staff Report and recommendations. These findings discuss how the use of
fiber cement siding can cause damage to the historic building and alters and diminishes the barn's
historical and architectural character, such as through the introduction of nail holes into the
historic wood when applying the cement skin, as opposed to the nails required if repairing selected
boards; through the deleterious effects of moisture trapped between the cement and historic wood
siding, as opposed to the ability for moisture to evaporate; and due to the inability to visually
inspect the wood siding for damage relating to moisture, molds and fungus, and insect damage.
b. The Appellant alleges that the Landmark Preservation Commission failed to correctly apply
the criteria in Chapter 14, Article III, Section 14-48(b)(2), of the City Code, because the
Commission failed to support its findings with specific findings of facts. In support of its
decision the Commission states "that the proposed covering of the historic fabric and
associated features with a skin, and removing historic windows, will adversely affect the
arrangement, texture and materials of the existing historic buildings, and their consistency
and relationship to each other, which is not in accordance with Chapter 14, Article III
(b)(2). " The appellant maintains that the proposed work does reflect the existing texture
and materials and their consistence and relationship to each other are identical and any
adverse affect is minimal.
Staff Response:
The Commission did not err. The Appellant is proposing to add a layer ofHardie Plankfiber cement
siding over the existing siding. This will make the barn's siding thicker, compromising the trim
details and the relationship with the shadow lines. This would notably alter the barn's appearance
and adversely affect the historical integrity of the building. While there may be an initial visual
similarity between cement siding molded to look like wood and the barn's historic wood siding,
those similarities do not extend to a closer visual inspection, nor to the physical texture of wood vs.
concrete fiber. Finally, covering the barn with cement siding adversely affects the barn's
consistency and relationship to the other historic wood sided Jessup/Johnson farm buildings.
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C. The Appellant alleges that the Landmark Preservation Commission failed to correctly apply
the criteria in Chapter 14, Article III, Section 14-48(b)(3), of the City Code, because the
Commission failed to support its findings with specific findings of facts. In support of its
decision the Commission states "That the proposed work is not in accordance with Chapter
14, Article (b)(3), as covering the historic structure with new materials, as proposed, would
give the buildings an appearance similar to the non -historic structures in the modern Rigden
Farm development, adversely affecting the buildings' ability to be recognized as a physical
record of their true, historic time, and would instead create a false sense of the time in which
the buildings were constructed and which they are purported to reflect." The Appellant
maintains that the Commission based this decision on the belief that the proposed work
would change or destroy character defining features of the landmark buildings; and that
placing new skin over the existing historic structures could lead to unwarranted damage to
the historic structures.
Staff Response:
The Commission did not err. In making its decision regarding if the proposal met this Standard, the
Commission considered that covering the historic structure with new materials, as proposed, would
give the building the appearance of being recently constructed, rather than dating to 1919 and
appearing as an authentic part ofour community's history. In its Findings, the Commission did
express that it would be difficult to recognize a fiber cement clad barn as a physical record of its
true, historic time, and that it would instead create a false sense of the time in which the building
was constructed, and the time in which the barn is purported to reflect.
d. The Appellant alleges that the Landmark Preservation Commission failed to correctly apply
the criteria in Chapter 14, Article III, Section 14-48(b)(4), of the City Code, because the
Commission failed to support its findings with specific findings of facts. In support of its
decision the Commission states "that the proposed work is not in accordance with Chapter
14, Article III (b)(4) as placing new skin over the existing historic structures could lead to
unwarranted damage to the historic structures, from nails, moisture penetration and vermin
infestation that could not be easily detected. " The Appellant alleges that staffs reasoning
regarding how the new skin could lead to unwarranted damage to the historic structures is
unfounded. The Appellant argues that the reason for the proposed work is to repair the
existing damage caused by water, rot, and flicker holes. In addition, the proposed material
not only appears to be the same as the existing materials it is designed to prevent the
damages the Commission and staff are alleging may occur in the filture. Any material used
to repair this damage would be new materials and would have the same affect. The
proposed materials match the existing materials but have the added advantage ofproviding
theprotections againstflicker, water and wood rot damage to the buildings. Theproposition
that the skin covering "may" cause the aforementioned damage to the building is speculative,
unfounded and without proof.
Staff Response:
The Commission did not err. While the Appellant may be correct in believing that covering a
historic wood sided structure with cement siding will likely prevent future damage from flickers,
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information provided by the City's Natural Resources Department shows that a far easier and
cheaper solution could be the introduction of a flicker nesting box or two. Flickers are very
territorial, and tend to chase away other birds. As stated previously, the use offiber cement siding
can cause damage to the historic building through the introduction of nail holes into the historic
wood when applying the cement skin, as opposed to the nails required if repairing selected boards;
through the deleterious effects of moisture trapped between the cement and historic wood siding,
as opposed to the abilityfor moisture to evaporate; and due to the inability to visually inspect the
wood siding for damage relating to moisture and insect damage. In -kind wood repairs on a wood
building would cause far less visual inconsistency and damage to historic material than covering
the building with fiber cement siding.
e. The Appellant alleges that the Landmark Preservation Commission failed to correctly apply
the criteria in Chapter 14, Article III, Section 14-48(b)(5), of the City Code, because the
Commission failed to support its findings with specific findings of facts. In support of its
decision the Commission states "that the proposed work is not in accordance with Chapter
14, Article III (b)(5) because it does not meet the Secretary of the Interior's Standards for
Rehabilitation. The Commission further states that specifically, the proposed work does not
meet Standard Number 2, 3, 5, 6, 9 and 10. "
Staff Response:
The Commission did not err. The Secretary of the Interior's Rehabilitation Standard Number 2
states: "The historic character of a property will be retained and preserved. The removal of
distinctive materials or alteration offeatures, spaces, and spatial relationships that characterize a
property will be avoided. " Staff believes the proposed project does not meet Standard 2, as it would
alter and cover distinctive historic features and material that characterize the property. An
important tenet of Historic Preservation is authenticity. Covering the barn over with cement siding,
when repairing is feasible and in -kind wood siding is readily available, does not promote the goals
of Standard Number 2.
Standard Number 3 states: "Each property will be recognized as a physical record of its time, place,
and use. Changes that create a false sense ofhistorical development... will not be undertaken. " Staff
believes the project would not meet this Standard since covering the historic structures with cement
siding, as proposed, would make the farm buildings appear to be newly constructed buildings,
similar to the structures in the modern Rigden Farm development, as the Appellant himself noted
at the Conceptual Review at the November 18, 2009 Landmark Preservation Commission meeting.
This would adversely affect the farm buildings ' ability to be recognized as a physical record of their
historic time, and create a false sense of the time in which the buildings were constructed and the
methods and materials used in their construction.
Standard Number 5 states: "Distinctive materials, features, finishes, and construction techniques
or examples of craftsmanship that characterize a property will be preserved. " Staff believes that
the proposed work does not meet Standard Number 5, as it'involves altering and covering distinctive
materials and features, specifically the historic siding that covers all four of the exterior walls of
the landmarked structures. This Standard requires that the distinctive features, finishes and
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construction techniques or examples of craftsmanship shall be preserved visually, as well as
physically. Covering a historic structure or its distinctive features with a new material and
removing the original material from sight does not fulfill the meaning of this Standard.
Standard Number 6 states: "Deteriorated historic features will be repaired rather than replaced.
Where the severity ofdeterioration requires replacement ofa distinctivefeature, the newfeature will
match the old in design, color, texture, and, where possible, materials. Replacement of missing
features will be substantiated by documentary and physical evidence. " Staff believes that the
proposed work does not meet this Standard. The material's level of deterioration is fairly minimal,
and is certainly not to the extent that full replacement is needed. The exterior walls and their
historic wood fabric are distinctive historic features that should be repaired, as needed, rather than
replaced or covered with a new exterior ofmaterials that do not match the historic materials in kind.
Standard Number 9 states: "New additions, exterior alterations, or related new construction will
not destroy historic materials, features, and spatial relationships that characterize the property. The
new work shall be differentiated from the old and will be compatible with the historic materials,
features, size, scale and proportion, and massing to protect the integrity of the property and its
environment. " Staff believes the proposed work does not meet this Standard because the proposed
exterior alterations will destroy historic materials and could lead to damage to the historic
structures from nails, moisture penetration and vermin infestation that could not be easily detected.
Standard Number 10 states: "New additions and adjacent or related new construction will be
undertaken in such a manner that, if removed in the future, the essential form and integrity of the
historic property and its environment would be unimpaired. " Staff believes the proposed project
does not meet this Standard since the proposed new construction could not be removed without
damage to the historic property, and, if it is removed, the historic windows, a character defining
feature, would no longer exist.
f. The Appellant alleges that the Landmark Preservation Commission failed to correctly apply
the criteria in Chapter 14, Article III, Section 14-48(b)(5), of the City Code, because the
Commission failed to support its findings with specific findings of facts. In support of its
decision the Commission states that the project meets Standard Number 1 which provides
that "A property will be used as it was historically or be given a new use that requires
minimal change to its distinctive materials, features, spaces, and spatial relationships. " The
Appellant maintains that the current use of the property requires different maintenance
requirements; and that the Commission's justification for denying the proposed work is
excessive because it ignores the new use of the structures and this imposes a long term cost
constraint and feasibility problem. The Appellant alleges that, in support of its decision
regarding Standard Number 2, the Commission stated the proposed work would remove the
historic windows and would cover historic features that characterize the property. The
Appellant maintains that there are no features that "characterize the property" that would
be lost as a result of the window replacements or non -historic siding, and that the
Commission failed to state why replacing the windows or installing the siding diminishes the
provisions of Standard 2.
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Staffs response:
The Commission did not err. The Secretary of the Interior Standards for Rehabilitation provides
the ability to allow repairs, alterations, and additions, as long as those portions or features which
convey a building's historical, cultural and architectural values are preserved. The minutes of the
December 9, 2009 Hearing demonstrate the importance that the Landmark Preservation
Commission placed on retaining the historic wood windows, as well as the original siding. An
important tenet of Historic Preservation is authenticity. Replacing the historic windows and
covering the barn over with cement siding, when repairs are feasible and energy -efficient interior
storm windows and in -kind wood siding are readily available, does not meet Standard Number 2,
as it would significantly alter the building's historic materials and features.
STAFF SUMJ1ARY
The Henry Jessup/Cal Johnson Farm buildings are an officially recognized Landmark property,
designated by Council action on November. 7, 2000. Therefore, as provided for in Chapter 14 of the
City Code, staff believes that the Landmark Preservation Commission does have the authority to
consider actions affecting these buildings. Staff believes that the Landmark Preservation
Commission did not fail to hold a fair hearing, as alleged by the Appellant, and further, that the
Commission did notfail to properly interpret and apply theprovisions contained in Section 14-48(b)
of the City Code in making its decision in regards to this item.
RELEVANT CODE PROVISIONS
The applicable Code provision for the Council to review is Section 14-48. Section 14-48(a)
introduces the subject by stating that applications should be evaluated as to whether the proposed
work is of a nature that will not erode the authenticity or destroy any distinctive exterior feature of
the historic structure. Subsection (b) is the criteria that the Commission is to use in making that
evaluation.
Sec. 14-48. Approval of proposed work
(a) If upon the receipt of an application... the Commission finds that the proposed work is of a
nature which will not erode the authenticity or destroy any distinctive exterior feature or
characteristic...
(b) In determining the decision to be made concerning the issuance of a report of acceptability,
the Commission shall consider the following criteria:
(1) The effect of the proposed work upon the general historical and/or architectural
character of the landmark or landmark district;
(2) The architectural style, arrangement, texture and materials of existing and proposed
improvements, and their relation to the sites, structures and objects in the district;
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(3) The effects of the proposed work in creating, changing or destroying the exterior
characteristics of the site, structure or object upon which such work is to be done;
(4) The effect of the proposed work upon the protection, enhancement, perpetuation and
use of the landmark or landmark district;
(5) The extent to which the proposed work meets the standards of the city and the United
States Secretary of the Interior then in effect for the preservation, reconstruction,
restoration or rehabilitation of historic resources.
Below are the ten Secretary of the Interior's Standards for Rehabilitation:
1. A property shall be used for its historic purpose or be placed in a new use that requires
minimal change to the defining characteristics of the building and its site and environment.
2. The historic character of a property shall be retained and preserved. The removal ofhistoric
materials or alteration offeatures and spaces that characterize a property shall be avoided.
3. Each property shall be recognized as a physical record of its time, place, and use. Changes
that create a false sense of historical development, such as adding conjectural features or
architectural elements from other buildings, shall not be undertaken.
4. Most properties change over time; those changes that have acquired historic significance
in their own right shall be retained and preserved.
5. Distinctive features, f nishes, and construction techniques or examples ofcraftsmanship that
characterize a property shall be preserved.
6. Deteriorated historic features shall be repaired rather than replaced. Where the severity of
deterioration requires replacement of a distinctive feature, the new feature shall match the
old in design, color, texture, and other visual qualities and, where possible, materials.
Replacement of missing features shall be substantiated by documentary, physical, or
pictorial evidence.
7. Chemical or physical treatments, such as sandblasting, that cause damage to historic
materials shall not be used. The surface cleaning of structures, if appropriate, shall be
undertaken using the gentlest means possible.
8. Significant archeological resources affected by a project shall be protected and preserved.
If such resources must be disturbed, mitigation measures shall be undertaken.
9. New additions, exterior alterations, or related new construction shall not destroy historic
materials that characterize the property. The new work shall be differentiated from the old
and shall be compatible with the massing, size, scale, and architectural features to protect
the historic integrity of the property and its environment.
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10. New additions and adjacent or related new construction shall be undertaken in such a
manner that if removed in the future, the essential form and integrity of the historic property
and its environment would be unimpaired."
Mayor Hutchinson asked City Attorney Roy to explain the appeal process. City Attorney Roy
replied the City Code establishes an appeal process under which certain parties -in -interest can
appeal Boards and Commissions decisions to City Council. New evidence is not admissible as part
of the appeal; Council bases its decision on the record of the proceedings before the Landmark
Preservation Commission (LPC). At the conclusion of the hearing, Council will decide whether the
LPC granted the parties -in -interest a fair hearing and if it agrees with the way in which the LPC
applied and interpreted the provisions of the City Code. Council can then uphold, overturn, or
modify the LPC decision.
Jeff Scheik, Planning, Development, and Transportation Director, stated the request to allow fiber
cement siding to be installed over the historic wood siding of the Henry Jessup/Cal Johnson Barn
had been unanimously denied by the LPC.
Karen McWilliams, Historic Preservation Planner, gave a brief history of the Barn and its historic
designation.
Mayor Hutchinson asked Councilmembers to disclose any site visits.
Mike Schwab, Rigden Farm Master and Residential Homeowners Association Manager and
appellant, stated a petition was signed by 268 residents in support of the appeal. He noted the
building's use has changed and maintenance procedures are different than they would have been.
The residents would like to preserve the buildings for future homeowners. The LPC action was an
act of inverse condemnation and the decision was based on opinion, not fact. He offered three
questions for consideration: Can the City staff, which has long-term ties to this project, provide an
objective opinion? Should the current owners be saddled with a deal that the original developer
made to expedite the project? Should the buildings be designated as Historic Landmarks even
though their use has changed? Mr. Schwab noted the architecture and look of the building are not
proposed to be changed. The historic wood siding is no longer manufactured and having it custom -
milled is not economically feasible. He asked that Council not remand the decision back to the LPC.
Councilmember Poppaw asked how the language of the petition was stated to signers and if it was
made clear the siding would be fiber cement siding. Mr. Schwab replied it was explained in a letter
sent to residents and the product does look very similar to the existing siding.
Councilmember Poppaw asked if it was made clear the fiber cement siding would be nailed over the
existing siding. Mr. Schwab replied most residents were only concerned about the potential cost of
future maintenance if they did not replace the siding.
Councilmember Poppaw asked how many meetings were held in the neighborhood regarding this
issue. Mr. Schwab replied there was an annual homeowners association meeting and information
was sent in a homeowners association newsletter.
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Mayor Hutchinson asked what weight should be given to the petition. City Attorney Roy replied
the residents have, at least, a possessory, if not a proprietary interest in the property, they are
considered parties -in -interest. Council should consider that those parties -in -interest have made the
statement on the petition.
Councilmember Manvel noted the appeal states the buildings should not be historic landmarks and
asked if Council should consider that issue given the historic status cannot be changed. Paul
Eckman, Deputy City Attorney, replied Council can undo its previous decision to make the building
a historic landmark, but that issue is not part of this decision.
Councilmember Manvel acknowledged the cost of new wood siding would be higher but noted it
is feasible. Mr. Schwab replied an economic analysis showed the cost to be about $1,900 per year,
over a 50 year period, for the concrete siding. The analysis showed the cost to be about $4,600 per
year, over the same period, for replacing rotted siding with wood siding as needed, not for replacing
all the siding.
Mayor Hutchinson asked how Council should consider the economic factors. Eckman replied
federal regulations provide the standards are to be applied taking into consideration the economic
and technical feasibility. It does not have to be the cheapest alternative in order for it to be feasible.
Feasible is what is rationally possible to do.
McWilliams noted the wood siding can be milled locally. A bid from Wright Construction LLC
shows an estimate for repair of the building, including labor, materials, and equipment, at $3,925.
Mr. Schwab stated the bid for residing the entire barn and outbuildings with cement siding, and for
new windows, is about $50,000.
Eckman noted the appellant may want to withdraw consideration of the section of the appeal
regarding a fair hearing by the LPC, as the appellant does not want the item remanded back to the
LPC. Mr. Schwab stated they would likely appeal again should the LPC make the same decision
if the item were remanded back.
Mayor Hutchinson suggested all appeal questions be dealt with separately, beginning with the
question of whether the LPC had the authority to hear the item.
City Attorney Roy stated Council should assume the Historic Landmark status of the building and
answer the question with that assumption in mind.
Councilmember Kottwitz stated it is then clear that the LPC had the authority to hear the item.
Mayor Hutchinson asked how Council should consider the building's change of use and location in
whether or not the LPC had the authority to hear the item. McWilliams replied historic buildings
can absolutely have a change of use, called adaptive re -use. New uses are encouraged when the
original use is no longer viable.
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February 16, 2010
Councilmember Ohlson asked if this property was declared a Historic Landmark after it was moved
to its present location. McWilliams answered in the affirmative.
Councilmember Poppaw asked if new residents to Rigden Farm were informed this building was
a Historic Landmark. Mr. Schwab replied he was unsure but did not believe so. McWilliams stated
the former property owner and Rigden Farm developer was promoting the historic building in its
original sales materials as an enhancement to the community.
Councilmember Kottwitz asked if the HOA purchased the property from the previous owner. Mr.
Schwab replied the HOA did not buy the property, but was given the property by the original
developer.
Councilmember Kottwitz asked if the HOA is required by law to upkeep the building. McWilliams
replied the City has a minimum maintenance requirement for landmark designated properties to
ensure there is no "demolition by neglect." There are also financial incentives available for owners
of Historical Landmarks.
Councilmember Manvel made a motion, seconded by Councilmember Roy, that the Landmark
Preservation Commission had the authority to hear the item.
Councilmember Troxell noted there was really no alternative as to who would hear the item.
The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy
and Troxell. Nays: none.
THE MOTION CARRIED.
Mayor Hutchinson asked for consideration regarding whether the LPC held a fair hearing.
Councilmember Manvel asked if the LPC felt it had the information and preparation time needed
to consider the item properly. McWilliams replied Boardmembers were given the information at
the meeting and were asked if they needed more time to review the materials.
Councilmember Manvel asked if it was fair to say there was a thorough discussion by the LPC.
McWilliams replied in the affirmative. Mr. Schwab disagreed, noting boardmembers could not have
thoroughly reviewed the materials when given them on the spot. He stated boardmembers rely too
much on staff opinion.
Councilmember Troxell asked if it was true there was no prior information given to the LPC
Boardmembers prior to the meeting. McWilliams replied the Board had previously discussed the
item at a conceptual review at a meeting prior to the one in question and noted the LPC gets the staff
report and information at each meeting as a manner of course.
City Manager Atteberry asked if there were any changes to the staff report between the conceptual
review meeting and the final review meeting. McWilliams replied the conceptual staff reports are
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often less detailed and acknowledged there was new material at the final review meeting but she
believed the Boardmembers did fully grasp the new information. Eckman stated evidence,
particularly from the appellant, is received only at the hearing and that is the standard procedure.
Councilmember Ohlson asked the LPC Chairperson, Terrance Hoaglund, if he felt the
boardmembers had adequate time to review the materials.
Councilmember Ohlson stated he would like to pursue changes that would require materials be given
to Boardmembers of all boards and commissions as far in advance as possible. McWilliams replied
they do try to send out materials in advance but that did not happen in this case. Mr. Schwab stated
his materials were required to be in 10 days in advance of the hearing.
Councilmember Kottwitz asked for clarification as to whether materials go out to boardmembers
in advance or not. Eckman replied most boards and commissions do get a packet prior to hearings
but some material is presented at the hearing.
Terrance Hoaglund, Chair of the Landmark Preservation Commission, replied that Boardmembers
were all comfortable that they received adequate information and time to review materials at the
final hearing.
Councilmember Ohlson asked if Boardmembers felt they had a good grasp of the issues at the
conceptual review meeting two weeks prior to the final hearing. Mr. Hoaglund replied the
conceptual review consists of a staff presentation, applicant presentation, public comment, and
Board questions.
Councilmember Troxell asked if it is within the purview of the LPC to debate whether or not
Historic Landmarks should in fact remain with that title in cases such as this. Eckman replied the
LPC does not have the ability to question whether a property should have been designated a Historic
Landmark by Council.
City Attorney Roy noted the City Code gives four grounds under which Council must decide if a
fair hearing was granted: Did the Board exceed its authority, substantially ignore established rules
of procedure, consider false or grossly misleading evidence, or fail to receive all evidence offered
by the appellant.
Councilmember Ohlson made a motion, seconded by Councilmember Manvel, that the Landmark
Preservation Commission held a fair hearing. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson,
Poppaw, Roy and Troxell. Nays: none.
THE MOTION CARRIED.
Mayor Hutchinson asked that the issue of the LPC properly interpreting and applying provisions of
the City Code and Charter be considered.
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February 16, 2610
Councilmember Ohlson stated the LPC did properly apply provisions and noted the current owner
of the property entered willingly into the agreement to accept ownership of the buildings. He stated
he would not vote to overturn the LPL's decision.
Councilmember Troxell asked about the relevancy of economics and change of use issues brought
up by the appellant. McWilliams replied historic preservation is about authenticity and preserving
elements of the community's past in a manner that educates the community's future. Changing the
characteristics of the architectural features that made the barn significant presents a false sense of
history. The responsibility of owning an historic property includes maintenance.
Councilmember Manvel made a motion, seconded by Councilmember Roy, that the Landmark
Preservation Commission properly applied and interpreted relevant provisions of the City Code and
Charter.
Councilmember Ohlson noted the Secretary of Interior standards require deteriorated historic
features to be repaired rather than replaced and repaired with materials as closely matched to
original materials as possible.
Councilmember Manvel stated the financial differences do not make the wood siding option
infeasible and using cement siding would not be preserving the character of the building.
Councilmember Roy asked about financial assistance for owners ofhistoric properties. McWilliams
replied the HOA can apply for state tax credits of up to 20% of the cost, state historic fund grants
of up to $400,000 with matching funds being required, federal grants, and a zero -interest loan from
the City of up to S7,500.
Councilmember Kottwitz asked for assurance that the LP-C would not require complete siding
replacement with the wood siding in the future. McWilliams replied repair is always preferred over
replacement.
Mayor Hutchinson stated the materials given to Council were very thorough.
The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw, Roy
and Troxell. Nays: none.
THE MOTION CARRIED.
Resolution 2010-013
Authorizing the City Manager to Execute Intergovernmental Agreements
with the Board of Governors of the Colorado State University System (CSU)
and with the Colorado State University Research Foundation (CSURF)
for the Mason Corridor/Max Bus Rapid Transit System, Adopted
The following is staff s memorandum for this item.
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"EXECUTIVE SUMMARY
The City and Colorado State University (CSU) are working together to develop the section of the
Mason Corridor Bus Rapid Transit (BRT) Project along the Burlington Northern & Santa Fe
Railway Company right-of-way through the University's main campus. The Mason Corridor BRT
will provide more comfortable and efficient public rapid bus service to the students, faculty, staff
and visitors of CSU and the citizens of the City. The parties desire to enter into these Agreements
in order to set forth their respective rights and obligations concerning the development,
maintenance, operation, and use of the Mason Corridor BRT System.
BA CKGR O UND/DIS C USSION
The general purpose of these Agreements is to establish and formalize the basic understanding
between the parties regarding their efforts to support and/or develop the BRT System to be used for
the benefit of the City and of the students, faculty, and staff of the University. The City and the
University agree to collaborate on the development of the BRTProject, including the design, rights -
of -way acquisition, construction, operations, and public relations for the BRT Project.
In exchange for the City's obligations stated in the Agreements, the University agrees to grant
certain.easements on their propertyfor the construction of the BRT Project, including the value of
those easements and the resulting loss of parking spaces within the Property.
The following specific terms are addressed in the Agreements:
• Identifies the scope of the BRT construction within the limits of the University Campus
including University design and construction requirements and Universityparticipation and
approval process.
• Includes specific University requirements for fencing, lighting, landscaping and other
amenities and requirements for cost participation from the Universityfor these elements.
• Includes provisions for the design, construction and cost allocation for a new storm
drainage system to serve both the University and the BRT Project.
• Addresses BRT Project responsibilities for impacts to existing University utilities and
infrastructure.
• Includes provisions for approvals of changes during construction.
• Addresses responsibilities of the University and the City relative to operations and
maintenance including roadway, walkway, landscaping and snow removal.
• Identifies responsibilities for access to the BRT propertyfor repairs and maintenance. "
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Councilmember Troxell withdrew from the discussion of Resolution 2010-013 due to a conflict of
interest.
City Manager Atteberry noted the great deal of preparation and work by City and CSU staff
regarding this project.
Jeff Scheik, Planning, Development, and Transportation Director, stated the proposed Mason
Corridor Project goes through the Colorado State University (CSU) campus and the partnership with
CSU and the Colorado State University Research Foundation (CSURF) has been critical.
Steve McQuilkin, Mason Corridor Project Manager, introduced Stu MacMillan, CSURF Director
of Real Estate. McQuilkin gave a brief description of the Mason Corridor Project and noted there
are two planned bus rapid transit stations on campus, the land for one of which is owned by CSURF,
the other by CSU and the Board of Agriculture; therefore two separate agreements were needed.
McQuilkin highlighted details of the agreements, including operations and maintenance noting the
City will be responsible for maintaining the bus rapid transit guideway and all related facilities.
There is a shared agreement for sidewalks and existing streets on campus.
Stu MacMillan, CSURF Director of Real Estate,. expressed support for the Mason Street Corridor
project, noting its benefits for both the City and CSU.
Councilmember Manvel noted the provision that the electrical connections will go to CSU's electric
system and asked if that meant CSU will be paying electric bills. McQuilkin replied CSU will be
funding the electrical and landscape connections.
Councilmember Manvel asked if, overall, CSURF was contributing the right-of-way while the City
funds the remainder of the project. McQuilkin replied that is basically correct with some provisions
for CSU to pay for some upgrades to fencing and lighting.
Councilmember Manvel asked what concerns had been raised during the negotiations between the
City and CSU. McQuilkin replied the operations and maintenance regarding using Mason Street
for the bus corridor, funding the storm drainage system, and dealing with change orders during
construction were difficult issues to resolve.
Helen Migchelbrink, City Engineer, stated the final agreement suits the needs of all involved parties.
Councilmember Manvel asked why the station on Prospect Road was on the north side of the street.
City Manager Atteberry replied Council would be receiving more detail at next week's work
session.
City Manager Atteberry stated CSU has been very supportive of this project and always willing to
work out any issues. He stated each entity is paying for its appropriate fair share.
Councilmember Ohlson confirmed the project itself will cost about $82 million with $55 million in
federal grants. He asked how Council can be assured the payment structure is fair. Atteberry
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replied CSU is not required to give the right-of-way and it was in fact a gift rather than a purchase.
McQuilkin replied input was received from all involved City departments and the City negotiated
firmly.
Councilmember Ohlson asked for a financial summary of the project costs and payers. McQuilkin
replied it would be prepared.
Councilmember Roy made a motion, seconded by Councilmember Poppaw, to adopt Resolution
2010-013.
Mayor Hutchinson noted, in addition to federal grants, CDOT, the State, and City also provided
funds for the project.
The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw and
Roy. Nays: none.
THE MOTION CARRIED.
Councilmember Ohlson made a motion, seconded by Councilmember Manvel, that Council find it
would be contrary to the public interest to postpone consideration of a possible executive session
dealing with Agenda Item No. 25, which relates to the acquisition of certain lands for water storage
and natural area purposes.
Councilmember Roy stated he would be voting against going to executive session due to the fact it
was previously unannounced.
The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Troxell and
Poppaw. Nays: Roy.
THE MOTION CARRIED.
Executive Session Authorized
Councilmember Ohlson made a motion, seconded by Councilmember Manvel, to go into executive
session, as permitted under Section 2-31(a)(3) of the City Code, to meet with the City Attorney, City
Manager and other affected members of City staff to discuss the possible acquisition of certain lands
for water storage and natural area purposes. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson and
Poppaw Nays: Roy.
THE MOTION CARRIED.
(**Secretary's note: The Council went into executive session at this point in the meeting.)
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Meeting Extended past 10:30 pm.
Councilmember Manvel made a motion, seconded by Councilmember Roy, to extend the meeting
past 10:30 p.m. Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Troxell and Roy. Nays: Poppaw.
THE MOTION CARRIED.
Resolution 2010-012
Authorizing the Acquisition of
Certain Lands for Water Storage and Natural Area, Adopted
The following is staffs memorandum for this item.
"EXECUTIVE SUMMARY
In 2009, staff negotiated an agreement with Jay Stoner to acquire 128-acres of land and reservoir
storage near the southwest corner of Harmony and I-25 for a price of $5.8 million (see attached
map). The land is part of the so-called Riverwalk project —a development proposed for the area.
The contract with Stoner was terminated in late fall of 2009. A new contract has been drafted with
a successor to Stoner, the Turnkey Company.
The City wishes to acquire the 128 acres for the primary purpose of water storage. About 80 acres
of the 128 acres will be used for storing approximately 1,500 acre feet of water. Under the terms
of the City's proposed contract with Turnkey Company, the Company will remove material from the
site to create additional storage capacity prior to closing the transaction.
A secondary purpose of the acquisition will be to conserve an open space amenity along I-25 near
the Harmony intersection. Dry land around the reservoir will be restored and managed by the
Natural Areas Program to enhance habitat and recreational opportunities.
The agreement with Turnkey calls for the City and Turnkey to work closely together on the design
of the reservoir to achieve the primary objective of water storage, while simultaneously building an
amenity that is as aesthetically pleasing as possible.
BA CKGR O UND/D IS C USSION
Late last summer, Council approved going forward with an effort to acquire a water storage
reservoir on the south half of Riverwalk. The reservoir would achieve the City's primary objective
of managing its return flow obligations, while also helping to support aesthetic, natural area,
recreation, and development considerations at this critical gateway. Through the fall, staff worked
with the Seller in an attempt to acquire the 128-acre property and up to 2,000 acre feet of water
storage. The total cost of the acquisition was $5.8 million.
The site is attractive to the City because it works well for certain water management responsibilities
(see below); and, it also augments the City's efforts to help conserve lands on the I-25 corridor that
lie between major intersections. In this case, the 128 acres adjoins a City -owned natural area to
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the south, Eagle View. To the north of Harmony lies Arapaho Bend Natural Area. In the future,
these properties are planned to be linked by trail.
A need for water storage capacity below the City's water reclamation facilities has been recognized
and planned for a number of years. The purpose of the storage capacityprimarily is to help the City
meet certain water management objectives and obligations related to the storage and release of the
City's reusable effluent as prescribed by City water rights decrees, and potentially to help enhance
flows in the river through Fort Collins. The proposed acquisition is advantageously located below
the City's Drake Water Reclamation Facility (DWRF) and its primary function would be to help
manage water supplies and reusable effluent in the vicinity ofDWRF.
The project is somewhat unusual for several reasons. First, the reservoir is not yet fully
constructed. Although a reservoir lining already is in place, a considerable amount of material
needs to be removed from the reservoir area to increase the amount of storage to the required
volume. Therefore, a purchase agreement must rely on the Seller to complete a major improvement
to the reservoir in advance of closing on the purchase of the reservoir and surrounding land.
Second, there are some challenging engineering and floodplain issues at this site (on both the north
and south portions). As staff conducted due diligence and increased its familiarity with the
complexities of the site, staff also began to be concerned that the Seller would not be able to
complete a project of this magnitude. Ultimately, the original Seller asked the City to terminate its
purchase agreement in November and staff concurred that termination was in the best interest of
the City.
A forthcoming change in the ownership status ofRiverwalkportends a more favorable environment
for pursuing water storage at this site. Turnkey Company has informed the City that it plans to
acquire Riverwalk in the near future. Turnkey is bringing a major equity partner to the table and
appears, therefore, to have the financial and technical wherewithal to complete the Rivewalk
storage project. In fact, recent meetings with Turnkey and its representatives have been well staffed
by Turnkey.
Turnkey has indicated to staff that a partnership on the reservoir site is critical to its plans for the
overall Riverwalk site, partly due to financial considerations, but also because it wants to be in a
collaborative, working relationship with the City. In addition to efforts related to the purchase
agreement, Turnkey is working closely with the City's planning department on a potential recreation
related facility to be developed on the northwest corner of the Riverwalk, a portion of the overall
site that is already zoned for development (unlike the majority ofRiverwalk which currently is zoned
T "transition').
In recent conversations with staff, Turnkey has indicated that it is willing to accept a number of new
conditions that staff believes are necessary to enter a new transaction. A major change would be
the construction of a smaller reservoir of 1,500 acre feet. The smaller size would meet the City's
storage needs and lower the price from $5.8 million to $4.425 million.
Aside from the size of the reservoir and the price, other key differences from the original contract
are (or will be):
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a. The time periods allowed for completion of construction and closing will be longer;
b. The Seller will be reserving a drainage easement across the south parcel to benefit the north
parcel;
C. The contract will include more technical details about the standards to which the water
storage will be constructed, including regulatory requirements, how the parties will
collaborate on construction, and how the south parcel and north parcel will work together
in terms of drainage, now and in the future. At the time this AIS was written, the precise
terms were still being worked out.
Turnkey will benefit from the arrangement with the City in two ways: first from the proceeds of the
sale itself, and secondly, because it will be able to use excavated material from the site to help fill
ponds and gravel pits on the property it owns to the north. This will make the property more readily
developable and/or marketable. This should also help the City achieve its development and gateway
objectives at the Harmony and I-25 interchange.
In spite of the benefits associated with acquiring the Riverwalksite, there are significant challenges
to the completion of the project. For example, various floodplain and engineering issues are out
of the control of the City or Turnkey. The Federal Emergency Management Agency (FEMA)
ultimately will determine if the site development plan submitted by Turnkey for all of Riverwalk,
including the storage site, will meet its strict regulatory requirements. However, staff and Turnkey
are optimistic that the project will be successful. "
John Stokes, Natural Resources Director, reviewed the proposed land acquisition, known as
Riverwalk, which is a water storage and management project with natural area elements located at
the southwest corner of I-25 and Harmony Road. The purchase price of the property is $4,425,000.
The seller is responsible for all permitting and for expanding the existing water storage on the site.
The purpose of the water storage and management aspect is to manage the City's return flow
obligations. Natural Areas will restore and manage the dry land around the reservoir and, ultimately,
trails will be connected to adjacent natural areas. The closing on the property has been pushed to
June 2014, and the City will not close until the reservoir has been constructed per the City's design.
The City has been working with Turnkey Company on the project design.
Russ Hackstaff, principal with the Turnkey Company, stated Turnkey would be purchasing the
property from Jay Stoner and will complete the water storage design and project prior to selling the
land to the City. He added the project will be transit -oriented, nodal, and open space tied. He asked
Council to adopt the resolution and approve moving forward with the process.
Gary Wockner, 516 North Grant, Save the Poudre Coalition Director, stated this project affects
Poudre River floodplains and wetlands. He expressed concern regarding the lack of public input in
the project noting the Water Board has not had any input. His Coalition would likely try to stop this
project if environmental tests show potential harm to the Poudre River. He asked for a 2 month
delay in the vote to allow for more public involvement and completion of a management plan and
environmental impact statement.
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Bill McDowell, 2465 Central Avenue, Flatiron Companies Managing Partner, proposed a second
option for water storage on a 500-acre property approximately 1 mile north of this project, near the
Drake Water Reclamation Facility. He discussed his company's experience with constructing water
storage facilities and encouraged the City to do a detailed comparison between the Riverwalk site
and the Flatiron Companies property.
Councilmember Kottwitz asked if there would be an opportunity for public input at a later date
should Council authorize the acquisition of the property. Stokes replied the water storage facility
design will go to the Water Board and the Land Conservation and Stewardship Board. The City has
150 days to complete the design and pass it on to Turnkey for review.
Councilmember Kottwitz asked if it would be possible for a third party to become involved in the
land acquisition and subsequent project if Council did not vote to move forward with the land
acquisition this evening.
Councilmember Manvel asked for a summary comparing the Riverwalk property with the Flatiron
Companies property. Stokes replied the Riverwalk property was selected because it is the gateway
into the City and having some control over that area is beneficial. The site works well for a water
storage facility and for natural areas trail connections.
Councilmember Manvel asked for a description of water flow and effluent on the Riverwalk site.
Dennis Bode, Water Resources Manager, replied water storage is needed to help regulate reusable
effluent coming out of the Drake Water Reclamation Facility. The water will likely flow in through
the Fossil Creek Reservoir Inlet Canal and be pumped back out the same way.
Councilmember Roy expressed concern regarding a lack of public process and Board involvement.
Bode replied a foreclosure deadline on the Riverwalk property came up quickly and staff had
intended to take a comparison of the two properties to the Water Board.
Councilmember Roy asked if there would be a possibility that the site will not work for the project.
Owen Randall, Utility Water Systems Engineer, replied getting water in to the reservoir will be a
gravity system which should present no problems; the return pump system is very common. There
should not be any fatal issues in design.
Councilmember Roy asked what elements of the Turnkey mixed use project had changed since
earlier plans. Hackstaff replied there is less density and less building height. The City's reservoir
project on the south side will tie to Eagle View.
Councilmember Roy asked what concerns Gary Wockner had regarding permitting issues and
effects on the Poudre River. Mr. Wockner replied his organization is commenting on environmental
impacts relating to the Clean Water Act and which waters are considered jurisdictional waters of the
U.S. and therefore fall under the control of the Army Corps of Engineers. He stated there are
questions as to whether this project will engage the National Environment Policy Act (NEPA) which
is required whenever there is a major federal action. This could fall into that category because it
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involves federal floodplains and waters, is near a federal interstate, and involves federal funds.
Other issues are related to FEMA as the property lies within a floodplain.
Stokes expressed staff's agreement that there are permitting issues at the site. FEMA and the Army
Corps of Engineers will be involved. Staff does not believe this project rises to the level of a major
federal action, and therefore does not rise to the level of requiring a NEPA analysis.
Councilmember Roy asked about cost differences between the Riverwalk site and the Flatiron site.
Mr. McDowell replied the Flatiron property would not involve the $300,000 shown as part of a 50-
acre land purchase or the $150,000-$200,000 cost of revegetation. Stokes stated there maybe some
cost differences but that has not been analyzed.
Councilmember Roy made a motion, seconded by Councilmember Poppaw, to postpone Resolution
2010-012 to a date certain.
Councilmember Roy expressed concern that this project may not yet be ready.
Councilmember Kottwitz asked if postponement would effectively kill the deal. Mr. Hackstaff
replied the closing process was to start in two days and conclude next week due to a significant
equity partner having a deadline of March 1.
Councilmember Kottwitz noted the advantage of having control of this piece of"gateway" property,
particularly considering the natural areas benefits. She noted postponing this vote could kill the
deal.
Councilmember Poppaw asked that Mr. Wockner's question be entertained. Mr. Wockner expressed
concern that the City has been in negotiations regarding this project for months while the public
learned about it 10 days ago in a Coloradoan article. He expressed concern about the lack of public
process.
Steve Humann, TST Consulting Engineers, stated the Army Corps of Engineers has been very
specific that the gravel pits are not jurisdictional. The existing water storage reservoir on the site
could be filled today and the issue is whether the City wishes to buy it, expand it, and use it for its
own water storage. A FEMA process will need to be undertaken. The seller of the property is
responsible for gaining the permits.
Suspension of the Rules
Councilmember Manvel made a motion, seconded by Councilmember Roy, to suspend the rules and
extend the meeting past 12:00 a.m. Yeas: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw,
Troxell and Roy. Nays: none.
THE MOTION CARRIED.
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February 16, 2010
Councilmember Ohlson asked what Councilmember Roy hoped to gain by postponing the item.
Councilmember Roy replied the Water Board and Natural Resources Advisory Board should have
the opportunity to review the item and allow for public involvement.
Councilmember Ohlson expressed concern that staff neglected to take the item to the Water Board.
Councilmember Kottwitz asked that City Manager Atteberry address the public process concerns.
City Manager Atteberry replied there was nothing intentional, blatant, or irresponsible regarding
staff s handling of the process. There was no intent to exclude the Water Board. The project has
included stops and starts and has been fraught with issues. The Water Board will be included in the
process should Council approve the land acquisition.
Councilmember Ohlson asked what would happen if the process moves forward and subsequent
studies show negative effects on the Poudre River. Carrie Daggett, Deputy City Attorney, replied
there are environmental inspection provisions, mutual agreement about the reservoir design, and
other issues which need to be resolved prior to closing. The seller is required to get all permits and
approvals which may prohibit the deal from moving forward. There is not an absolute provision
which allows the City to kill the deal based solely on potential effects on the Poudre River but it is
possible that could be added to the contract.
Stokes stated the design of the project will be as sensitive as possible to environmental issues. New
withdrawals from the Poudre River are not being made; the water has already come out of the River.
Councilmember Roy expressed concern regarding the public process and asked that it not be
repeated.
Councilmembers Roy and Poppaw withdrew their motion to postpone consideration of Resolution
2010-012.
Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt Resolution
2010-012.
Councilmember Poppaw expressed extreme disappointment with the process but stated she would
support the motion.
Councilmember Troxell stated this is a valuable project which will benefit Fort Collins.
Councilmember Manvel expressed disappointment with the lack of public process but expressed
excitement about the project and stated he would support the motion.
Councilmember Ohlson stated he would support the motion but asked for improvements in process.
Mayor Hutchinson stated there are enough safeguards in place to make this project work and the
water storage and gateway aspects of the project are critical.
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February 16, 2010
The vote on the motion was as follows: Yeas: Hutchinson, Kottwitz, Manvel, Ohlson, Poppaw,
Troxell, and Roy. Nays: none.
THE MOTION CARRIED.
Other Business
Councilmember Poppaw stated she had been considering a possible process for legislation to register
lobbyists. She asked staff for a list of options.
Adjournment
Councilmember Ohlson made a motion, seconded by Councilmember Manvel, to adjourn to
February 23, 2010 at 6:00 p.m. to consider any unfinished business. Yeas: Hutchinson, Kottwitz,
Manvel, Ohlson, Poppaw, Troxell, and Roy. Nays: none.
THE MOTION CARRIED.
The meeting adjourned at 12:25 a.m.
ATTEST:
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City Clerk
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