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HomeMy WebLinkAboutMINUTES-07/03/1968-Regular118 July 3_,_l_968 MINUTES OF A REGULAR MEETING OF THE COUNCIL OF THE CITY OF FORT COLLINS, Held Thursday, July 3, 1968, at 1:30 o'clock P.M. Present: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. City Manager Coffey, City Attorney March and Director of Public Works Liquin. Motion was made by Councilman Kissock, seconded by Councilman Bennett, that the reading of the minutes of the last regular meeting held June 27, 1968, be dispensed with. Roll was called resulting as follows: Ayes: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. The following ordinance was presented on second reading: ORDINANCE NO. 28, 1968 BEING AN ORDINANCE AMENDING SECTION 19-46 OF THE CODE OF ORDINANCES OF THE CITY OF FORT COLLINS, COLORADO, 1958, AS AMENDED, RELATING TO EMENDMENTS TO THE ZONING ORDINANCE. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS: Motion was made by Councilman Bennett, seconded by Councilman Kissock, that Ordinance No. 28, 1968, be adopted and become a law upon passage. Roll was called result- ing as follows: Ayes: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. The following ordinance was presented and read on second reading: ORDINANCE NO. 29, 1968 BEING AN ORDINANCE PROHIBITING THE PARKING, STORAGE OR STANDING OF VEHICLES UPON CERTAIN PORTIONS OF THE RIGHTS OF WAY OF STREETS IN THE CITY Motion was made by Councilman Kruchten, seconded by Councilman Troxell, that Ordinance No. 29, 1968, be adopted and become a law upon passage. Roll was called re- sulting as follows: Ayes: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. The following report was presented and read at length: TO: Charles Liquin, Director of Public Works FROM: Roy A. Bingman, City Engineer DATE: July 2, 1968 RE: Petition for sewer near LaPorte and Taft Hill. In regard to the petition for sewer in the area north of of LaPorte Avenue, between Taft Hill Road and Pennsylvania: The following estimate has been made for an eight -inch sewer in the alley between Pennsylvania and Taft Hill Road. This sewer would serve the houses on the east side of Pennsylvania, the north side of LaPorte and west of Taft Hill Road for a total of 15 possible connections. COST ESTIMATE 1. 8-inch sewer line. Approximately 660 feet @ $4.50 $2,970.00 2. Manholes four @ $400.00 1.;600.00 3. Eastment. 300 feet @ $1.00 300.00 4, 70.00 5% contingencies 250.00 5,120.00 With 15 people participating, the cost per house would be about $310.00. With fewer people willing to participate, of course, the cost per unit would increase.' Respectfully subMitted, /s/ Roy A. Bingman City Engineer The Director of Public Works stated that there was some question of being able to obtain a right-of-way to the north across one poperty if this project was to be carried out, which would eliminate the possibility at this time of such project.. The Director of Public Works advieed the Council that he did not have his report ready on the exchange of land as requested by Raymond Demere. 119 July 3_, 1968 The Mayor opened the meeting for discussion of the proposed rules and regulationsl for the cemeteries. The Warren Mortuary and the Riddell -Hayes Mortuary were represented in the audience, as well as Mr. Steele of the Fort Collins Monument Works. The City Manager offered several changes to be made in the rules and regulations and there was considerable discussion between the Council, City Manager and those interested in this matter. After further discussion of amendments and corrections to be made, the following resolution was presented and read at length: RESOLUTION 0-5' ' OF THE COUNCIL OF THE CITY OF FORT COLLINS ADOP.;T ING RULES AND REGULATIONS FOR GRANDVIEW AND ROSELAWN CEMETERIES. WHEREAS, the City Manager has presented to the City Council- proposed Rules and Regulations f m Grandview and Roselawn Cemeteries, and WHEREAS, the City Council desires to adopt such Rules and Regulations as pre- sented by the City Manager NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Rules and Regulations for Grandview and Roselawn Cemeteries as presented by the City Manager be and the same hereby are approved and adopted, and BE IT FURTHER RESOLVED that such Rules and Regulations shall supersede and re- place any and all previous rules or regulations heretofore in force governing said cemeteries. Passed and adopted at a regular meeting of the City Coancil held this 3rd day of July, A. D. 1968. /s/ Karl E: Carsnn Mayor ATTEST: /s/ Miles F. House City Clerk Motion was made by Councilman Benritt, seconded by Counci pan Kissock, that this resolution be adopted. Roll was called resulting as follows: Ayes: - Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. A representative of the Downtown Merchants Association appeared before the Counci: requesting that certain streets be closed for the public use in the downtown section from July 15 through July 17. The streets to be closed would be College Avenue at LaPorte through to Olive Street and one-half block on East Oak from Colleve Avenue to the alley. Their request for this is for the annual downtown merchants bazaar. Motion was made by Councilman Bennett, seconded by Councilman Kissock, that this request for the Downtown Merchants Association be approved. Roll was called resulting as follows: Ayes: Coun- cilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. Mr. Wayne Schrader, owner and operator of the Phill-ips_: 66 gasoline bulk station and the service station opposite Cherry Street on North College, appeared before the Counci: and discussed his request for a change in the median strip being installed. He stated that it makes a very awkard situation for the customers from the filling station co_m.ing over from the north to get/to the south bound lanes again after leaving the station as under the present plan they have to join the north bound traffic and then make a U turn at Cherry Street. He stated that he had attempted to design a drive around the filling station coming in to the College Avenue traffic at Cherry Street from his property, but with the loading of his bulk transports and the parking of same, as well as the wholesale customers and oil, grease, etc., being purchased from the bulk station, makes it almost impossible to maintain an open driveway around the filling station itself. He asked if it would be possible to cut a crossing in the median opposite his so uth drive in order that the south 120 July 3_, 1968 bound customers could cross the north bound traffic into the south bound lane without going north and make a U turn. The Council advised Mr. Schrader that North College was a State highway and all traffic engineering had to be approved by the State Highway Department. T',,ey also stated that there would be sufficient cut in width allowed in the median as requested to the fact of the necessity of the shadow clearance. After further discussion motion was made by Councilman Troxell, seconded by Councilman Kruchten, that this matter be post- poned for investigation and further report from the Administration. Roll was called resulting as follows: Ayes: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. The City Attorney reported that they had completed their research for an opinion on the referendum for a vote on Ordinance 19, 1968, which had been petitioned for. The following opinion was presented: June 25, 1968 Mayor and City Council City of Fort Collins Fort Collins. Colorado Gentlemen: Our opinion has been requested regarding the petition forreferendum filed in connection with Ordinance No. 19, 1968, being an amendment to the Zoning Ordinance of the City of Fort Collins reclassifying certain property from the R-L zone to the R-M zone. Ir is our understanding that the petitions have been checked by the election board and it has been determined that sufficient signatures are on the petitions to qualify for a referendum. Section 3 of Article XVII of the Charter of the City of Fort Collins provides as follows: "The referendum shall apply to aID_'ordinances passed by the Council, except ordi- nances making the tax levy, making the annu al appropriation, or ordering im- provements initiated by petition and to be paid for by special assessmats. If at any time within 30 days after the final passage of an oreinance to which the referendum is applicable, a petition signed by qualified electors equal in number to at least 15% of the total vote cast in the last general city election, be presented to the Council, protesting against the going into effect of any ordinance, the same shall thereupon be suspended, and the Council shall recon- sider such ordinance. If the same be not entirely repealed, the Council shall subjit the same to a vote of the qualified electors of the City in manner as provided in respect to the initiative, at the next general city election or at a special election called therefor. Such ordinance shall then go into effect without further publication if a majority of the qualified electors voting thereon vote in favor thereof." Section 6 of this Article further proviced as follows: "An ordinance adopted by electoral vob-e. under either the initiative or refer- endum, cannot be repealed or amended except by electoral vote;..." Article XIX of the City Charter governs zoning in the City of Fort Collins and establishes the Planning and Zoning Board and sets forthe the functions of such Board which include advising the Council on zoning matters and exercising the.authority vested in zoning boards by :,tate Zoning Laws. Section 3 of this Article provides as follows: "For the purpose of promoting the health, safety, morals and general welfare of the community, the Council is hereby empowered to zone the City ...." Our research has revealed that several Courts have considered the question of whether or not the initiative and referendum procedures are available with respect to zoning and re- zoning ordinances the the cases are in conflict as to whether such procedures apply to zoning ordinances. Almost all states have held that the initiative is not applicable to zoning but some Courts notably the California Courts, have held that the referendum is available. See Dwyer V. Berkley 253 Pac. 932 (Cal. 1927). More recent cases from other states have held that neither the initiative nor the referendum is available in connection with zoning matters. In the case of Dewen v. Doxey-Layton 3 Utah 2d 1, 277 P2d. 805, the Utah Court held that the initiative was not available in connection with zoning -matters it the reason that an initia.tive.ordinance does not comply with the notice and hearing requirements for a rezoning ordinance. Since the City Council could not zone land without going through the procedure set forth by the statutes and ordinances the electors of the City were likewise barred from by-passing such provisions. In Elkind v New Rochelle 163 NYS 2d 870 (1957) the court held that a referendum petition was not applicable to a rezoning ordinance for the reason that a referendum does not comply with the notice aid hearing requirements in connection with zoning matters. It has been almost universally held that the Bower of initiative or referendum is restrict- ed to "legislative" ordinances or measures and is not extended to "executive" or "adminis- trative" action. In Bird v. Sorenson 16 Utah 2d 1, 394 P2d 808 1964, the Utah Court was faced with the issue presented here and determined that the referendum was not available in connection with zoning matters. In so determing the Court stated: 121 July 3, 1968 "The ordinance in question was passed after the requested change had been studied and recommended by the planning commission and after a public hearing had been held, the determinative question is whether or not the action of the City Council was administrative or legislative ....if such change in a zoning classification were to be subr;Utted to a vote of the city electors any master plan would be rendered inoperative. Such changes are administrative acts implementing the comprehensive plan and adjusting it to current conditions." In Kelley v. John 162 Neb. 319, 75 NW2d 713 (1956) the Nebraske Court also determined that a referendum was not available in connection with zoning matters and in so determining stated: "The crucial test for determing that which is legislative or executive is whether the action taken was one making a law, or executing or administering a law already in existence ....It seems clear to us that an ordinance adopting a comprehensive plan for zoning a city is a legislative miter.... ...We conclude that the passage of (the rezoning ordinance) is an admin- istrative act. It is the carrying out of the purposes of the comprehensive zoning ordinance and, in so doing the procedures provided... are exclusive.... It seems clear to us that the ordinance in question purports to carry out the purposes of the comprehensive zoning ordinance which latter ordinance was a valid exercise of legislative power. In putting this ordinance into effect, the City Council acts administratively.... It is fundamental also that to permit a referendum to beinvoked to annul or delay executive action would be to destroy the efficiency necessary to sucessful administration of the business affairs of a municipality ... The policy of the municipality was determined by adoption of the comprehensive zoning ordi- nance. The administration of the ordinance, including the changes in classifi- cation of particular pieces of property, very rarely effects all the electors of a municipality. To say that administrative determinations are subject to referendum could defeat the very purposes of zoning. The uniformity required in the proper administration of a zoning ordinance could be wholly destroyed by referendum. A single decision by the electors by referendum could well destroy the very purpose of zoning where such decision was incconflict with the general scheme fixing the uses of property in designated areas. This alone is suffi- cient to sustain the holding that an ordinance administrative in character is not subject to referendum. I would permit the electors by referendum to change, delay and defeat the real purpose of the comprehensive zoning and by creating the chaotic situation such ordinance was designed to prevent. The determination as to whether or not a city desires to embark upon a policy of zoning for the purpose of regulating and restricting the construction and use of building withn fixed areas is a legislative matter subject to referendum. But when such policy has been'determined the changing of such areas, or the granting of excep= tions are committed to the Mayor and Council as administrative matters in order to secure the uniformity necessary to the accomplishment of the purposes of the comprehensive zoning ordinance. In the case at bar the City Council has sought to fit the property here involved into a master plan which it believes properly should be classified as business property. If its action may be nullified by a referendum then the comprehensive master plan becomes a nullity and every change of classification of property made by the City Council will be subject to the whims of the electors without regard to the master plan." In Donnelly v. Fairview Park 13 Ohio St. 2d 1, 233 NE 2d 500 (1968) the Court also determined that rezoning matter was an administrative matter and not a legislative function of the Council. It is noted that both the initiative and referendum provisions of the Charter and the provisions of the charter regarding zoning were con tained in the origins charter and were thus passed by the electorate at the same time. Although the general provisions regarding initiative and referendum would appear to apply to all ordinances it is noted that the provision so` the char ter regarding zoning specifically pleced the power to pass zoning ordinances in the Council. In the case of Hartig v Seattle 102 Pac. 408 W2sh.(,1909) the Court held in a similar situation that when an amendment to the charter of the City of Seattle conferrng on the electorate the referendum power was passed at the same time as the amend- ment to the charter conferring upon the City Council the power of licensing and regulating the sale of liquor in the City, the power to regulate liquor was ex- clusively vested in the City Council and this exclusive delegation of authority in the special law governed over the general referendum provisions in the refer- endum law. In the case of State v.Donoh,u.e, 368 SW 2d. 432 (Mo. 1963) the Court using rea- soning similar to that of the Hartig case, supra, held that the initiative was not available in connection with rezoning matters because the charter specifi- cally delegated to the Council the power to adopt zoning ordinances. The Court further bases this decision upon the fact that the charter and ordinances in= volved in this case spelled out certain requirements for hearings and notice which had to be met before any zoning could be accomplished and these would not be available in connection with an initiative proceeding. Similar reasoning should apply to the referendum as well as the initiative and since the charter for the City of Fort Collins specifically delegates to the City Council the power to encac.t' zoning laws it would appear that such laws are not subject to either the initiative or the referendum. Although there is a conflict in the cases emsidered in this question it is our opinion that the more recent and better reasoned cases hold that the referendum is not available in connection with zoning matters. It is therefore our recommendation that the referendum petitions filed in connection with this rezon- ing ordinance be rejected and that the ordinance continue in full force and effect. Respectfully submitted, /s/ Arthur V. March City Attorney 122 July 3, 1968 After comments by various members of the City Council, the following resolution was presented and read at length: RESOLUTION L'� 5a OF THE COUNCIL OF THE CITY OF FORT COLLINS SETTING FORTH FINDINGS AND CONCLUSIOE REGARDING REFERENDUM PETITIONS FILED IN CONNECTION WITH ORDINANCE NO. 19, 1968. WHEREAS, heretofore the City Council passed and adopted Ordinance No. 19, 1968, the date of final reading of said Ordinance being May 23, 1968, and the effective date of said ordinance pursuant to the provisions of the Charter of the City of Fort Collins being ten days after such final passage date, and WHEREAS, said Ordinance No. 19, 1968, was an ordinane changing the zoning classi fication for certain property located in the S�2 of the NW4 of Section 24, Township 7 North, Range_69 Westof the 6th P.M. in the City of Fort Collins, Colorado, and WHEREAS, such property was removed from the RL-Low Density Residential District under said zoning ordinance and part of said property was placed in the RM-Medium Density Residential District and part in the RP -Planned Residential District under said zoning ordinance, and WHEREAS, thereafter and within the time allowed by the Charter of the City of Fort Collins, petitions for a referendum onsaid ordinance were duly filed with the City Council protesting against the going into effect of such ordinance, and WHEREAS, such petitions were referred to the election board of the City of Fort Collins and report was made by the City Clerk that such petitions contained the signatures of more than 15% of the total vote cast at the last general City Election, and WHEREAS, the City Council has made a study of this matter and desires to set forth herein its findings and conclusions regarding such referendum petitions. follows: NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as 1. The City Council hereby finds and determines as follows: a. The Ordinance which is the subject of the referendum petitions was an ordinance changing the zoning classification for certain pr.opLaPty in the City of Fort Collins from the.RL-Low Density Residential District to the RM-Medium Density Residential District and the RP -Planned Residential District. b. In addition to the evidence presented at the hearing on such rezoning petition and the arguments there presented, the City Council notes that the land in questior has not been developed for any urban purposes, that said land was originally zoned under the zoning ordinances of the City of Fort Collins at the time it was annexed to the City in a Low Density Residential classification and that said land has remeined in such clas sification since it was annexed to the City in April of 195"7• Since such land was annex- ed to the City the land on all sides of the subject property has been developed, such developments including the South College Heights Subdivisions and the Indian Hills Sub- divisions and the limits of tYe City have extended more than a mile beyond the subject property, however, the subject property has remained undeveloped. Such fact indicates to the City Council that the original zoning for said property was not correct and was one of the reasons for the passage of the rezoning ordinance. 2. The City Council having heard'. the evidence presented at the hearing on the rezoning ordinance is of the opinion that failure to grant the rezoning would have constit- uted arbitrary and capricious action onthe part of the council which would have resulted in a direction from the Court having appropriate jurisdiction of the matter to grant the rezoning requested. 3. The City Council further finds and deteridnes tiat an ordinance changing the zoningclassification for property within the City cannot be lawfully enacted without a public hearing before the City Council after public notice is published and without study and recommendation concerning such amendment by the Planning and Zoning Board. In addi- tion the hearing before tle Planning and Zoning Board requires additional notice to persons interested all as set forth in Section 19-46 of the Code of Ordinances of the City of Fort Collins, Colorado, 1958, as amended. Since neither an initiated ordinance nor a referendum would comply with such notice andhearing requirements the referendum is not applicable to a rezoning ordinance(: 4. In addition the City Council is of the opinion that in passing the ordinance which is the subject cE the referendum petitions the City Council was acting in an admin- istrative Mner and not in a legislative manner and because of this such ordinance is not a proper subject for a referendum. 5. In addition the City City Council notes that Article 19 of the Charter of the City of Fort Collins empowers the City Council to zone the City and such article does not make such power subject to'the referendum. 6. And for the foregoing reasons the City Council hereby determines that Ordi- nance No. 19, 1968, is not subject to a referendum and because of this the City Council bes not accept the petitions for the referendum and Ordinance No. 19, 1968, shall continue n full force and effect. Passed and adopted at a regular meeting of the City Council held this 3rd day of uly, A. D., 1968. TTEST /s/ Miles F. House /s/ Karl E. Carson Mayor' 0 123 July 3, 1968 Motion was made by Councilman Bennett, seconded by Councilman Kruchten, that this resolution be adopted. Roll was called resulting as follows: Ayes: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. The City Manager presented a bid of the Flat Iron Paving Company on the paving of Mason Street in conjunction with the C & S railroad repairs being made from Mountain Avenue to Laurel Street. He stated that they did not call for open bidding as the Flat Iron Paving Compay was hired by the C & S Railroad Company to do the 22 feet of paving under their agreement with the City of Fort Collins for repairs of the right-of-way from Mountain Avenue to Laurel Street and that the paving company could do the entire job in conjuration with the paving of the street for the railroad company. The bid as presented was 6V per square yard. Motion was made by Councilman Kruchten, seconded by Councilman Troxell, that the bid of the Fla-r Iron Paving Company for Mason Street paving be accepted. Roll was called resulting as follows: Ayes: Councilmen Carson, Troaell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted. The following letter was presented and read at length: Hill and Hill June 24, 1968 City of Fort Collins Fort Collins, Colorado Attention: Mr. Tom Coffey, City Manager Re: Bajada Inc. --Eventual Improvements on Drake Road and South Taft Hill. Gentlemen: Bajada Inc. has filed plat for Lexington Green Second Filing. The City has withheld its formal approval of this plat conditioned on utility improvement agreement with the City. There is no dispute between Bajada Inc. and the City concei^zing any internal improvement required, but the City has withheld its approval of this plat, and conditioned such approval on commitment by Bajada Inc. to pay forcurbing and guttering and surfacing Drake Road. The position of Bajada Inc is that it is not liable for any improvements expense for Drake Road or Taft Hill Road, where the situation is similar. Bajada bases its con- tention on the fact that Drake Road and Taft Hill Road are already owned by the City of For Collins has demanded and rece4ved from Bajada Inc. denial of access to Drake Road and Taft Hill Road to the extent Bajada,.Inc. owned property adjacent thereto, except for three streets outlets; and for the final reason that the City has no ordinance which requires, such contractual commitment as a condition of approving plats. Bajada Inc. acquired through warranty deed of record 1960.42 feet on Drake Road and 1284.65 ft. on South Taft Hill Road. A portion of this property at the intersetion of .Drake Road and South Taft Hill has been conveyed to the Lutheran Church and a :portion on Drake Roake Road has been contracted to the First Congregational -Unitarian Church. Bajada, Inc. now makes two alternative offers of compromise in solution of this dispute, and prefers the first: 1. Bajada Inc. computes one-half the usual owner cost for street impovements fof, adjoining property at present prices for curb and gutter for 3245 ft. along Drake Road and South Taft Hill, and 30 ft. of Street surfacing in Drake Road and Taft Hill as amount- ing to, with engineering, approximately $25,000. There has been a denial of access by the City and at the insistence of the City of approximately two-thirds of the footage. Nevertheless, in compromise of tlE dispute as to all of the foota�ue mentioned, Bajada Inc. is willing to pay $12,500 toward this cost, or approximately 50% thereof, to be paid to the City when the improvements are constructed. The amount would be escrowed, with the interest thereon to belong to Bajada. Bajada contends it is not liable for any of this, and this proposal is without prejudice to the contentions of Bajada as to any other, situation or property. The City would have to agree that this payment would effectually release all owners of property joining Drake Road and So. Taft Hill Road for these distances, and lands originally owned by Bajada; that is, 196o.42 ft. East and West along Drake Road, and 1284.65 ft. North and South along Taft Hill Road for all original improvement arising from the existence of Drake Road or South Taft Hill Road. 2. The second compromise proposal is as follows: The City of Fort Collins approve the plat as tendered, with the understanding and agreement that Bajada Inc. will MAI July 3, 1968 immediately at its expense bring an actinn in the District Court here to determine whether or not the Gity has the power and authority to require the curb and gutter and street im- provements on Drake Road and South Taft Hill Road under the present City ordinances and Cliarter as a condition of approving the plat. Bajada Inc. will then agree to be boui;d by the Court's Determination. It seems to me that the City cannot in all fairness refuse to accept one or the ther of these porpositions. Certainly Bajada, Inc. has the right to challenge the City's equirement that it obligate itself to these improvemts on Drake Road and South Taft Hill oad as a condition of approving the prat. Bajada Ind. is willing to commit itself to the bligation to pay these expenses if theCity has the authority to do so. It is not too uch to ask the City to avoid handicapping these developers by holding up the decision pend- ng a determination of this question. The first proposition varies from the oral proposition I made to Mr. Coffey in ehalf of Bajada. This is because Bajada felt that at least its whole situation as to roperty owned or sold by Bajada should. be resolved, if payment was to be made. The first proposition .does this Since one of the reasons for making these offers of comppomise is to avoid fur- er delay in the development of the Bajada property, we trust we caii have the City's cision on these proposals promptly. Very truly yours, /s/ Alden T. Hill Motion was made by Councilman Kissock, seconded by Councilman Benntt, that this tter be referred to the City Attorney for a report to be presented at the next regular eeting. Roll was called resulting as follows: Ayes: Councilmen Carson, Troxell, issock, Kru chten and Bennett. Nayes: None. The President declared the motion opted. Motion was made by Councilman Kissock, seconded by Councilman Bennett, that the Council adjourn. Roll was called resulting as follows: Ayes: Councilmen Carson, Troxell, Kissock, Kruchten and Bennett. Nayes: None. The President declared the motion adopted and the Council adjourned. yor ATTEST: