HomeMy WebLinkAboutMINUTES-05/06/2014-RegularMay 6, 2014 ,
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, May 6, 2014,
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: Campana, Cunniff, Horak, Overbeck, Poppaw,
Troxell and Weitkunat.
Staff Members Present: Atteberry, Nelson, Roy.
Agenda Review
City Manager Atteberry stated Ordinance No. 073, 2014 was added to Item `No. 16, Items
Relating to the West Nile Virus Management Plan, per Council's request. He postponed Item
No. 19, Resolution 2014-033, Superseding Resolution 2014-049 and Authorizing the Execution
of a Revised First Amendment to the Intergovernmental Agreement Establishing the Boxelder
Basin Regional Stormwater Authority, to May 20, 2014, due to the anticipated length of the
meeting.
Citizen Participation
Nancy York, 130 South Whitcomb, discussed the National Assessment on Climate Change and
encouraged the promotion of renewable energy and the expansion of Transfort.
Mel Hilgenberg, 172 North College, announced community events, opposed the short timeframe
for citizen participation, and requested Council take a strong position that no taxpayer or public
funds be used for the on -campus stadium.
The following citizens spoke in support of installation of lights at City skateboarding parks,
particularly the Northside Atzlan Park: '
Andy Weiss, 728 Oxford Lane
Shimon Hoch, 836 Wagonwheel
Gunter Hammock, 816 Garfield
Bryce Joseph, 1631 Dogwood Court
Elijah Geren, 3206 Gatlin Street
Sam Cantor, 2337 Valley Forge
Jordan Alberts, 3412 Lindsey Street
Monica Hammock, 816 Garfield
Sierra Watson, 2002 Battlecreek Drive.
Carl Wangsvick, 1509 Westview, stated there are too many bad apartments going up in Fort
Collins and suggested a Council liaison be assigned to the Planning Department.
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Kevin Cross, Fort Collins Sustainabi►ity Group, supported a time -of -use pilot project for electric
rates but suggested two alternative rate structures, a tiered time -of -use rate and a tiered rate
offering greater incentive for reduced energy use, also be piloted.
Jack Daniels, 172 North College, asked that Council continue making Fort Collins a beautiful
place to live.
The following citizens spoke in support of the City's on -bill financing program:
Fred Kirsch, Community for Sustainable Energy
Janice Lynn, Fort Collins resident
Tom Hoehn, 218 South Washington
Mary Veronin, 1708 Springmeadows Court
Amanda Best, 1601 North College
Jared Ross, 4312 Westbrooke Court
Charles David Ham, 3324 Hickock Drive, thanked the City for the MAX system and the mall
development, and thanked Councilmember Troxell for his visit to SMU and subsequent
recommendation of an impact study.
Mike Pruznick, Fort' Collins resident, expressed concern the Mayor's conflict of interest
regarding the mall project had been handled poorly.
Eric Sutherland, 3520 Golden Currant, discussed Consent Calendar Item No. 9, First Reading of
Ordinance No. 066, 2014, Amending Chapter 2, Article II, Division 3 of the City Code
Pertaining to Appeals Procedure, stating it is deficient, and opposed time -of -use rates not being
integrated into the net metering Ordinance in Consent Calendar Item No. 10, First Reading of
Ordinance No. 067, 2014, Making Certain Amendments to Chapter 26 of the City Code
Pertaining to Electric Rates, Fees and Charges Associated with the Provision of Net -Metered
Service.
Sandy Lemburg, 6851 Poudre Canyon, stated the City is not using funds to take care of basic
services such as streets, snow clearing, and police services.
Bill Almquist, 1917 McAlister Court, withdrew his request to pull Item No. 8 from the Consent
Calendar and thanked staff for work on mobile food vendor issues. He suggested allowing up to
twelve vendors to participate in events on private property and suggested increasing the number
of times per year special events can occur. He also suggested mobile food vendors should be
allowed to park in downtown areas for longer than two hours.
Citizen Participation Follow-up
Mayor Weitkunat thanked the speakers, particularly the youth.
City Manager Atteberry stated he will speak with staff regarding the placement of lights at the
Northside Atzlan skateboarding park and will bring options for Council.
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May 6, 2014
Mayor Pro Tern Horak stated the Atzlan skateboarding park is one of the most used City
facilities and the evolution of recreation should be considered when budget offers are being
written and parks are being built.
City Manager Atteberry noted Councilmember Overbeck previously brought up the issue. _
Councilmember Poppaw requested Council receive a status report regarding on -bill financing.
She discussed Mayor Weitkunat's appearance before the Ethics Review Board and conflict of
interest.
Councilmember Overbeck thanked the youth speakers and discussed Ms. York's comments
regarding the National Assessment on Climate Change, suggesting the City will need a multi -
pronged approach. ,
Councilmember Cunniff requested a discussion regarding a tiered time -of -use rates.
Councilmember Troxell thanked Mr. Almquist for his input regarding mobile food vendors.
CONSENT CALENDAR
1. Consideration and Approval of the Minutes of the April 1 and April 15, 2014 Regular
Council Meetings and the April 22, 2014 Adjourned Meeting.
The purpose of this item is to approve the minutes from the April 1 and 15, 2014 Regular
Council Meetings and the April 22, 2014 Adjourned Meeting.
2. Items Relating to the Kechter Farm Annexation and Zoning.
A. Second Reading of Ordinance No. 005, 2014, Annexing Property Known as the Kechter
Farm Annexation to the City of Fort Collins.
B. Second Reading of Ordinance No. 006, 2014, Amending the Zoning Map of the City of
Fort Collins and Classifying for Zoning Purposes the Property Included in the Kechter
Farm Annexation to the City of Fort Collins.
These Ordinances, unanimously adopted on First Reading on January 7, 2014, annex and
zone 88.21 acres located north of Fossil Creek Reservoir, approximately 1,320 feet south of
Kechter Road, 2,640 feet east of South Timberline Road, just west of Ziegler Road, and
southwest of Kinard Middle School. The property is located within the Fossil Creek
Reservoir Area Plan. In accordance with the Intergovernmental Agreement with Latimer
County, adopted in 1999, properties within the Fossil Creek Reservoir Area receive their
land use approvals in the County and are.annexed into the City prior to construction.
3. Second Reading Ordinance No. 053, 2014, Vacating a Portion of Plum Street Right -of -Way
as Dedicated on the Dechairo Subdivision Plat.
This Ordinance, unanimously adopted on First Reading on April 1, 2014, vacates a portion
of Plum Street right-of-way that is no longer necessary or desirable to retain for public street
purposes. The property owner adjacent to this portion of right-of-way is requesting the
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vacation. This location is the future site of the Scott Plaza development project, which was
approved at the Planning and Zoning Board Public Hearing on January 9, 2014.
4. Second Reading of Ordinance No. 060, 2014, Amending the Definition of "Publicly"
Contained in Section 12-141 of the City Code Pertaining to the Cultivation of Marijuana.
This Ordinance, unanimously adopted on.First Reading on April 15, 2014, amends the
definition of.'publicly" in Section 12-141 of the City Code as it relates to the cultivation of
marijuana so as to conform the definition to`that which appears in Section 17-190 relating to
offenses involving marijuana. This will correct a mistake in the drafting of Ordinance Nos.
038 and 039, 2014, adopted by Council on Second Reading on March 18, 2014.
5. Second Reading of Ordinance No. 061, 2014, Authorizing the Mayor to Execute a Deed
Conveying 12,391 Square Feet of City -Owned Property to Dillon Companies, Inc.
This Ordinance, unanimously adopted on First Reading on April 15, 2014, authorizes the
conveyance of a portion of a 1-acre tract of property that was originally acquired from
BNSF Railway Company for MAX Bus Rapid Transit ("MAX") project purposes to Dillon
Companies, Inc. The property is no longer needed by the Project or the City as a result of an
alternative design that has been developed.
6. Second Reading of Ordinance No. 062, 2014, Vacating a Portion of Street Right -of -Way
Dedicated to the City in 1974 as Part of the Kmart Development.
This Ordinance, unanimously adopted on First Reading on April 15, 2014, vacates a portion
of dedicated street right-of-way that has not been constructed as a street and is no longer
needed for public street purposes. The location of this street right of way is located at the
rear of the building at 2505 South College Avenue and east of the railroad tracks. The
property owners of 2505 South College Avenue have requested this vacation.
7. First Reading of Ordinance No. 064, 2014, Authorizing the Transfer of $2,000 000 in
Existing Capital Appropriations from the Northwest Trunk Sewer Expansion Wastewater
Capital Project to a New Capital Project for the Construction of a Sewer Interceptor on
North Shields Street.
The purpose of this item is to transfer funds previously appropriated for a northwest trunk
sewer extension to be used for the construction of a similar project on North Shields Street.
The proposed project will serve a similar purpose of environmental stewardship by
removing a significant number of properties from individual septic systems and leach fields.
Latimer County is currently planning on the reconstruction of Shields Street north of the
Poudre River in 2015 to coincide with the bridge replacement project. Staff has met with
the County Engineering department and will be able to coordinate the two projects to
minimize the length of time the area would be impacted by construction, if the two projects
were to be done independently.
8. First Reading of Ordinance No. 065, 2014, Amending Chapter 15, Article XIV of the City
Code Regarding Outdoor Vendors.
The purpose of this item is to amend Chapter 15 of the City Code regarding Outdoor
Vendors with two minor amendments to further support the outdoor vending community. In
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July 2012, City Council adopted new outdoor vendor regulations based on a comprehensive
study completed by staff. Since the inception of the new regulations, staff has been
monitoring the activity and working with the mobile vending community to address
opportunities for improvement to the Code. Staff is recommending two updates to address
the opportunities.
9. First Reading of Ordinance No. 066, 2014, Amending Chapter 2, Article II Division 3 of
the City Code Pertaining to Appeals Procedure.
The purpose of this item is to further clarify and incorporate process improvements relating
to the procedure for the hearing of appeals by City Council. Staff contacted attorneys who
expressed concerns about the current process and provided them with copies of the proposed
changes. No suggested changes were received. Staff also met with the Board of Realtors
legislative committee to review the proposed changes. Comments from the committee were
focused more on the ease in which an appeal can be filed rather than the specific changes
proposed in this Ordinance.
10. First Reading of Ordinance No. 067, 2014 Making Certain Amendments to'Chapter 26 of
the City Code Pertaining to Electric Rates, Fees and Charges -Associated with the Provision
of Net -Metered Service.
The purpose of this item is to allow for certain operational efficiencies to be realized by
Utilities for the residential net -metering program without negatively impacting the financial
benefits of the program for participants. The current accounting process for net -metering
customers is manually -intensive. With the deployment of the advanced metering
infrastructure for all residential customers, it is now possible to provide these customers
with monthly information on their energy production and to implement an automated
monthly settlement process rather than the current annually settled process. In order to
ensure that no additional financial burden is placed on existing net -metering customers, it is
necessary to make the current implicit credit for distribution facilities charges explicit in the
City Code through the current rate Ordinance being presented.
11. First Reading of Ordinance No. 068, 2014, Clarifying Ordinance No. 028, 2014 Relating to
Wastewater Rates.
The purpose of this item is to clarify the City Council's intent in adopting Ordinance No.
028, 2014, in order to ensure there is no confusion regarding the correct wastewater rates for
2014. Ordinance No. 150, 2013 established new wastewater rates for all customers to be
effective January 1, 2014. These rates were implemented as intended for all bills on or after
January 1, 2014. Ordinance No. 028 added language to certain sections of the City Code
regarding how wastewater rates are charged during construction of multi -family residential
developments. Because there is potential for confusion and misrepresentation of the City
Council's intent from the way Ordinance.No. 028, 2014, as finally published, represented
Section 26-280 of the City Code, this Ordinance is intended to clarify the City Council's
intent and ensure correct codification of the 2014 wastewater rates.
12. Items Related to Common Private Service Lines for Water and Wastewater Service.
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A. First Reading of Ordinance No. 069, 2014, Amending Article III of Chapter 26 of the
City Code to Allow Common' Private Service Lines for Water Service in, Certain
Circumstances.
B. First Reading of Ordinance No. 070, 2014, Amending Article IV of Chapter 26 of the
City Code to Allow Common Private Service Lines for Wastewater Service in Certain
Circumstances. `
The purpose of this item is to amend Chapter 26 of the City Code to revise the requirements
for how separate water and sewer services are provided to individual properties.
The City Code currently requires each individual single family dwelling to connect directly
to a City water or sewer main. Current high density development practices can create
situations of multiple long service lines underground congesting the provided easements
through the entire green space of a property and impacting the ability to plant trees or install
other surface features. Ordinance No. 069, 2014, would allow for a "Common Private
Water Service Line" that is owned and maintained by a homeowner's association, or other
legal entity, and serve up to 6 individual properties. Ordinance No. 070, 2014, would allow
for a "Common Private Wastewater Service Line" that is owned andmaintainedby a
homeowner's association, or other legal entity, and serve up to 6 individual properties.
13. First Reading of Ordinance No. 071, 2014, Vacating Portions of Ziegler Road as Dedicated
in Book R at Page 118 of the Latimer County Records.
The purpose of this item. is to vacate the portions of Ziegler Road right-of-way that are no
longer necessary or desirable to retain for public street purposes. The portions to be vacated
are those portions that were dedicated in 1882 and not rededicated with the Fossil Lake PUD
First Filing plat and are portions of right-of-way that are not needed for the existing street
system:. r
14. First Reading of Ordinance No. 072, 2014 Vacating Right -of -Way as Dedicated on the Final
Plats of Waterfield P.U.D. First Filing and Waterfield P.U.D. Second Filing.
The purpose of this item is to vacate portions of right-of-way within Waterfield PUD First
and Second Filings that are no longer necessary or desirable to retain for street purposes.
These locations are being replatted as Waterfield-Third Filing and proposing new rights -of -
way to be dedicated, which was approved through an Administrative Hearing on February
11, 2014.
***END CONSENT***
Councilmember Cunniff withdrew Item No. 3, Second Reading of Ordinance No. 053, 2014,
Vacating a Portion of Plum Street Right -of -Way as Dedicated on the Dechario Subdivision Plat,
from the Consent Calendar.
Councilmember Campana withdrew Item No. 11, First Reading of'Ordinance No. 068, 2014,
Clarifying Ordinance No. 028, 2014, Relating to Wastewater Rates, from the Consent Calendar.
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Mayor Pro Tern Horak made a motion, seconded by Councilmember Poppaw, to adopt and
approve all items not withdrawn from the Consent Calendar. Yeas: Poppaw, Horak, Weitkunat,
Overbeck, Campana, Cunniff and Troxell. Nays: none.
THE MOTION CARRIED.
Consent Calendar Follow-up
Councilmember Cunniff requested as assessment of Item No. 10, First Reading of Ordinance
No. 067, 2014, Making Certain Amendments to Chapter 26 of the City Code Pertaining to
Electric Rates, Fees and Charges Associated with the Provision of Net -Metered Service and its
fit with the City Charter.
Councilmember Reports
Mayor Weitkunat reported on the CSU Campus Stadium Design Advisory Committee meeting.
She announced a community listening session. Additionally, she reported on the Fort Collins —
Loveland joint meeting regarding the Airport.
Councilmember Campana reported on Lopez Elementary School's certification as a Leadership
School.
Mayor Pro Tern Horak reported on McGraw Elementary School's Arbor zDay celebration and the
Rendezvous at the Museum of Discovery. Additionally, he reported on the Firefighter's
Compassion Fund.
Ordinance No. 053, 2014,
Vacating a Portion of Plum Street Right -of -Way as Dedicated on the
Dechario Subdivision Plat, Adopted on Second Reading
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading on April 1, 2014, vacates d portion of
Plum Street right-of-way that is no longer necessary or desirable, to retain for public street
purposes. The property owner adjacent to this portion of right-of-way is requesting the vacation.
This location is the future site of the Scott Plaza development project, which was approved at the
Planning and Zoning Board Public Hearing on January 9, 2014."
Councilmember Cunniff made a motion, seconded by Councilmember Overbeck, to postpone
consideration of this item until after consideration of Second Reading of Ordinance No. 052,
2014, later in the evening. Yeas: Horak, Weitkunat, Overbeck, Campana, Cunniff and Poppaw.
Nays: Troxell.
THE MOTION CARRIED.
Ordinance No. 068, 2014,
Clarifying Ordinance No. 028, 2014, Relating,to
Wastewater Rates, Adopted on First Reading
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May 6, 2014
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
The purpose of this item is to clarify the City Council's intent in adopting Ordinance No. 028,
2014, in order to ensure there is no confusion regarding the correct wastewater rates for 2014.
Ordinance No. 150,, 2013 established new wastewater rates for all customers to be effective
January 1, 2014. These.rates were implemented as intended for all bills on or after January 1,
2014. Ordinance No. 028 added language to certain sections of the City Code regarding how
wastewater rates are charged during construction of multi family residential developments.
Because there is potential for confusion and misrepresentation of the City Council's intent from
the way Ordinance No. 028, 2014, as finally. published, represented Section 26-280 of the City
Code, this Ordinance is intended to clarify the City Council's intent and ensure correct
codification of the 2014 wastewater rates.
BACKGROUND / DISCUSSION
In the fall of 2013, Ordinance No. 150, 2013 was adopted by the City Council reflecting the rate
class specific adjustments resulting from the updated cost of service study, and an overall 3%
increase in operating revenue for wastewater services effective January 1, 2014. All customer
bills generated on or after that date have included the 2014 rates as reflected in Ordinance No.
150, 2013.
Ordinance No, 028,2014, adopted on Second Reading on March 4, 2014 and effective ten days
later, added language to Section 26-280 of the City Code in order to state which of the
wastewater charges apply to wastewater service provided during the construction of multi -family
residential developments. The Ordinance clearly indicated a single sentence to be added to the
explanation of the wastewater rate applicable to customer category "C", clearly delineated and
marked on First Reading of the Ordinance, and the City Council's intent in adopting the
Ordinance is clear from the Agenda Item Summary and other related documents and the recitals
and other content of the Ordinance. However, the way the Ordinance in its finalized form
represented the remainder of Section 26-280 has created confusion as to the Council's intent
related to'the table of wastewater service charges. That is because Section 26-280 contains the
full table of charges for wastewater service, and that table did not yet reflect the adjustments
made effective January 1, 2014 that were enacted in Ordinance No. 150, 2013. This Ordinance
has been proposed for adoption in order to ensure that the correct wastewater rates for 2014 are
accurately codified, this Ordinance.
FINANCIAL IMPACTS
This Ordinance is necessary to avoid confusion as to 2014 wastewater rates, and ensures that
Utility revenues remain at the level anticipated during budgeting."
Councilmember Campana withdrew from the discussion of this item due to a conflict of interest.
Councilmember Troxell made a motion, seconded by Councilmember Cunniff, to adopt
Ordinance No. 058, 2014, on First Reading.
May 6, 2014
Council held a brief discussion regarding quality control issues for Ordinances.
The vote on the motion was as follows: Yeas: Weitkunat, Overbeck, Cunniff, Troxell, Poppaw
and Horak. Nays: none.
THE MOTION CARRIED.
Resolution 2014-032
Approving an Amendment to the Redevelopment and Reimbursement Agreement with the
Fort Collins Urban Renewal Authority, Walton Foothills Holdings VI, L.L.C. and the
Foothills Metropolitan District Regarding the Redevelopment of Foothills Mall, Adopted
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
The purpose of this item is to amend the Foothills Mall Redevelopment Agreement. The
Developer has asked to amend Section 3.1 - Conditions Precedent to Issuance of District Bonds
of the Agreement to allow the Metro District Bonds to be issued with 155k square feet of
executed leases vs. the 240k square feet required in the current agreement. The Developer is
also asking for clarification to, Section 4.3 - Construction of Residential Component of Project:
Affordable Housing concerning the period of time the Developer may be required to make
payments to the City if there is a delay in the completion of the residential units and Section
3.2(c) (now Section 3.2(g)) - Provisions to be Included in District Bond Documents concerning
the order in which the Reserve and the Supplemental Reserve would be utilized.
Six additional refinements to the Agreement are recapped below to address concerns raised by
Council.
BACKGROUND / DISCUSSION
Attachment I is the Agenda Item Summary from April 151u'' concerning the details behind the
modifications requested for Sections 3.1 and 4.3.
Amendment to Section 3.2
The current redevelopment agreement details two unique reserve accounts that will be
established as part of the Metro District bond offering. The first, "Reserve", is typical to bond
transactions where 10% of the bond proceeds are set aside in a reserve account. The Reserve is
funded directly from bond proceeds and is funded at the time the bonds close. The second,
"Supplemental Reserve", has been added as a credit enhancement. The Supplemental Reserve is
funded from revenues from the project and is built up over the first few years of the project.
Specifically, each year, if the combined pledged revenues exceed the bond payment requirement,
the excess is put into a Supplemental Reserve account by tlue Bond Trustee until the
Supplemental Reserve is fully funded at 10% of the initial bond value. The two reserves will each
hold $7.2M assuming a $72M bond offering for a combined total of $14.4M of reserves.
Section 3.2(c) - Provisions to be included in District Bond Documents within the original
agreement (Section 3.2(g) in the proposed modification document) specifies that in the event
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there are insufficient revenues from all sources to support the debt payments, the Reserve would
be used first and the Supplemental Reserve would be used second. Use of the Reserve to support
debt payments would trigger various regulatory filings on the part of the District and put the
bonds in default.
The Supplemental Reserve was intended to be a credit enhancement to the bond offering and was
designed to provide a buffer to the Reserve in the event of insufficient revenues. As such, the
Supplemental Reserve should be used first to avoid default and regulatory filings associated with
using the Reserve first. Using the Reserve first negates the credit enhancement feature the
Supplemental Reserve was designed to provide. There is no anticipated adverse financial impact
to the City with this clarification.
Additional Refinements
To further refine the agreement and address several concerns raised by Council, five additional
modifications have been discussed and agreed upon with the Developer since the April 15'1'
Council discussion. These changes are included in the attached proposed modifications.
1. Section 3.1(c) has been modified to require 120,000 vs. 90,000 square feet of tenants new to
Fort Collins except that the City Manager shall have the authority to deem this requirement
has been met if the square footage of tenants new, to Fort Collins is between 90,000 and
120,000 square feet and the City Manager has determined that it is in the best interest of the
City to do so.
2. Section 3.2(c) has been added that requires a certificate of completion on the core and shell
of the new Sears building before the release of the fourth tranche fmtds.
3. Section 3.2(e) has been added that stipulates the Developer will not be reimbursed from bond
proceeds for expenditures to date on public improvements until the Developer has achieved
at least 255,000 square feet of executed leased space.
4. Section 4.1(a) has been modified to allow the City Manager or City Attorney to inspect and
review executed leases subject to confidentiality provisions contained in the individual
leases. Developer will use reasonable efforts to obtain the consent of retailers where such
consent is required.
5. Sections 25.5 & 26 have been modified to clarify that the City Manager, in consultation with
legal counsel, has the authority to amend the agreement provided there is no change or
adverse impact to the City's financial interests or substantial change to the scope or general
character of the project.
6. Sections 4.7 & 5.1 have been modified to strengthen the agreement to' ensure the PIF
covenant remains in place and the mill levy cap and debt limits defined in the Metro District
Service Plan can be enforced.
Other minor revisions have also been made. All revisions are highlighted on Attachment 3.
May 6, 2014
BOARD / COMMISSION RECOMMENDATION
Council directed staff to meet with boards and commissions to gather input and feedback on the
proposed changes to the agreement. The following meetings have occurred:
• Staff met with the Economic Advisory Commission on April 17"' and again on April 281h
• An all board and commission meeting was held at the Lincoln Center on April 241". 16
people were in attendance (including I citizen not associated with a board), representing 12
different boards. Feedback was provided by 14 of the 16. In summary, 12 were supportive
of the Mall project, with I riot supportive and 1 neutral. 10 were supportive of the proposed
changes to the agreement and 4 were not supportive of the proposed changes. A recap of the
feedback from the board and commission meeting is included in Attachment 2.
PUBLIC OUTREACH
A community event- held April 28`h, hosted by Councilmember Horak, included a short
presentation by staff, followed by questions and answers. Approximately 30 citizens attended. "
Mayor Weitkunat thanked citizens for support of her participation in the mall discussion, but
regretfully recused herself from the item due to her previously declared conflict of interest.
City Manager Atteberry discussed the history of the mall property, the use of the project as a
catalyst for Midtown, and the realization of additional revenue for the City.
Mike Beckstead, Chief Financial Officer, discussed the proposed changes in the amendment.
City Manager Atteberry noted the risk to the City's balance sheet, credit rating, and existing
revenue stream.
Robby Swenton, Walton Street Capital, stated the main objective of this amendment is to
maintain the 2015 delivery schedule for the mall.
The following citizens spoke in support of the amendment to the agreement and the mall project:
Marilyn Hoekstra, Fort Collins resident
Mark Cowen, Fort Collins resident
Gary Clark, Fort Collins resident
Wendy Cowen, Fort Collins resident
David Ham, 3324 Hickock Drive
Dylan Henckel, 6107 Phillips Drive
Casey L:ipok, 3407 Stover
Leslie Henckel, 6107 Phillips Drive
Terry Palmos, 3307 South College
Randy Henckel, 6107 Phillips Drive
Spiro Palmer, 7400 Streamside
John Williams, Fort Collins resident
Curt Bear, 611 Laporte
Ray Martinez, 4121 Stoneridge Court
Linda Vrooman, 912 Cheyenne
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Francie Martinez, 2220 Dolan Street
Jennifer Petrik, 334 East Oak
Mike Bello, Fort Collins resident
Sherri Grant, Fort Collins resident
Kirk Larson, Fort Collins resident
Clint Skutchan, Fort Collins resident
Rich Shannon, 2906 Silverwood
Kevin Jones, Fort Collins Chamber of Commerce
Don Butler, 540 South Taft Hill
Luke McFetridge, South Fort Collins Business Association
Brian Manline, 3702 Wildview Drive.
Jonathan Carnahan, Fort Collins resident, supported the amendment but suggested the first
release of funds not occur until 195,000 square feet are leased.
Mike Pruznick, Fort Collins resident, supported the mall project but opposed the current
amendment.
Sandy Lemburg, 6851 Poudre Canyon, stated the City should enter into preliminary agreements
rather than amending contracts.
Eric Sutherland, 3520 Golden Currant, discussed dedicated taxes and questioned whether or not
the City can take on financial risk.
Don Provost, Alberta Development Partners, thanked Council for its dialogue and work on the
amendment and reported that the mall is 20% leased, has 25% working leases in active
negotiation, and has 16% working leases.
Carolyn White, land use counsel for Alberta Development Partners, discussed the reduced risk to
the City of the amendment and encouraged Council support.
Mayor Pro Tern Horak requested additional leasing information from Mr. Provost. Mr. Provost
stated 100,000 square feet are leased, 130,000 square feet are under working leases, and 81,000
square feet are under working LOIs.
Mayor Pro Tem Horak asked how much of the leased space includes stores new to Fort Collins.
Mr. Provost replied it is above the threshold set in the agreement.
Councilmember Cunniff asked how much of the leased space is existing mall tenants. Mr.
Provost replied he would research the exact figures.
Councilmember Cunniff stated he would like to see an operational mall with a sense of place and
sales tax revenue that exceeds the cost of the City's committed funds. - He asked if the
presentation process and public outreach process will be improved in the future to more
accurately convey what is happening with the bond and loan situations. Beckstead replied staff
is always in a learning mode to find clarity and transparency.
Councilmember Conniff asked about the impact of stores existing in Fort Collins moving to the
mall. Beckstead discussed the transfer implications.
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Councilmember Conniff asked if a tranched release was considered at the beginning of this deal
in May 2013. Beckstead replied in the negative; it was not entertained in the dialogue.
Councilmember Conniff encouraged a "payment for delivery of results" option to be included in
future deals.
Councilmember Overbeck' asked how soon confirmation of leases can occur. City Manager
Atteberry replied the developer's team will provide those as soon as possible.
Councilmember Overbeck discussed the projected $13,000 per day in interest payments which
could be paid by the City.
Councilmember Troxell made a motion, seconded by Councilmember Campana, to adopt
Resolution 2014-032.
Councilmember Conniff requested_ Council support to direct staff to create a report on monthly
lease rates on new, transfer, and existing tenants,' on -going monthly and cumulative monthly
sales tax until the opening date, and quarterly and annual on -going and cumulative revenues and
expenses reports after construction.
Mayor Pro Tem Horak stated the City Manager, City Attorney, and Mr. Beckstead plan to keep
Council updated with those types of reports.
Councilmember Overbeck discussed the possibility of a Council oversight committee for the
mall and stated he would support the amended agreement.
Councilmember Campana discussed the reporting provisions and requirements of the developer,
which are part of the amendment.
Councilmember Troxell stated staff is charged with administrative oversight and stated he has no
concerns regarding this agreement. He discussed the performance -based elements of the
agreement and the benefits of the mall project to the City.
Councilmember P.oppaw thanked citizens for their input regarding this project and commended
the work done over the last three weeks to ensure the best amendment possible.
Councilmember Campana also commended the work done over the last three weeks and thanked
the developers and staff for their commitment.
Mayor Pro Tern Horak agreed the agreement has been improved and noted this is first an urban
renewal project and second a mall.
Councilmember Conniff requested details on lease numbers. Mr. Provost replied 67,000 square
feet of the 100,000 leased square feet are new businesses and approximately 122,000 of the first
155,000 square feet to be lease will be new.
Councilmember Campana stated all Councilmembers will be engaged with the oversight of the
process; an official oversight committee may not be needed.
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May 6, 2014
Mayor Pro Tem Horak stated the item will be on a future agenda.
Councilmember Cunniff discussed his opinion that the weighted risk is less than the reward and
stated he will support the amendment.
The vote on the motion was as follows: Yeas: Poppaw, Horak, Conniff, Overbeck, Campana and
Troxell. Nays: none.
THE MOTION CARRIED.
(Secretary's note: The Council took a brief recess at this point in the meeting.)
Items Relating to the West Nile Virus Management Plan,
Ordinance No. 063, 2014 Adopted on Second Reading
Ordinance No. 073, 2014 Adopted on First Reading
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
A. Second Reading of Ordinance No. 063, 2014, Appropriating Prior Year Reserves in the
General Fund to Fund Enhancements to the Fort Collins West Nile Virus Management
Program for the 2014 Season.
B. Discussion of West Nile Virus Management Plan Options.
C. First Reading of Ordinance No. 073, 2014, Appropriating Prior Year Reserves in the
General Fund to Fund the Fort Collins West Nile Virus Management Program for the 2014
Season.
Ordinance No. 063, 2014, unanimously adopted on First Reading on April 15, 2014,
appropriates funds to execute the city's West Nile Virus Management Program. Additional
funds, amounting to $75,100, are appropriated to enhance the public outreach program,
increase the city's larval control boundary and allow for a more flexible larval control season.
Staff also seeks Council input as to which options it prefers to consider adding to the West Nile
Virus Management Plan. Options include Techinical Advisory Committee recommendations for
an opt -out program, implementation of zones, updates to the operational guidelines, and the
Advisory Panel process.
BACKGROUND / DISCUSSION
Background
West Nile Virus has been in Colorado since 2002 and the threat of disease transmission is now
an annual concern. West Nile Virus is a disease transmitted to humans by Culex mosquitoes,
which are the vector (source of transmission). West Nile Virus (WNV) infected mosquitoes infect
birds, which eah then be bitten by many uninfected mosquitoes, greatly amplifying vector
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May 6, 2014
abundance. Most people infected with WNV will have no symptoms. About I in 5 (20-25 percent)
people who are infected will develop a fever with other symptoms. Less than I percent of people
who are infected will develop a serious neurologic illness such as encephalitis or meningitis
(inflammation of the brain or surrounding tissues). (Centers for Disease Control and Prevention
Division of Vector -Borne Diseases (CDC DVBD) information)
Fort Collins utilizes the Centers for Disease Control and Prevention (CDC) -recommended
Integrated Pest Management (IPM) approach to address WNV. IPM consists of a comprehensive
series of evaluations, decisions and controls to pest management with the goal of providing the
safest, most effective, most economical, and sustained remedy. iPM reduces the risk from pests
while also reducing the risk from the overuse or inappropriate use of hazardous chemical pest -
control products. Every year the City convenes a WNV Technical Advisory Committee (TAC) to
review the previous season's activities and recommend modifications to the WNV Management
Program Policy. This plan, do, check, act (PDCA) cycle instills continuous improvement in the
WNV Management Program.
Technical Advisory Committee (TAC) Information
Since the arrival of WNV in Fort Collins in 2003, the City'has used community, expertise to
inform its WNV Management Program. In 2007, the TAC was formed at the direction of the City
Manager. Volunteers are appointed by the City Manager and provide feedback on the WNV
Management Program. The current program design - program response guidelines, three -
member Advisory Panel and otter policies have been developed through the TAC evaluation
process. Each year the TAC convenes to review and consider modifications to the program.
In the winter of 2013, the TAC membership expanded to ten members, to include Meghan
Williams, co-owner of Spring Kite Farms, and Dana Kunze, founder of the No Spray Fort
Collins Facebook site. These new members added additional important perspectives
representing urban agriculture, beekeepers, and wizens with pesticide sensitivities. Other TAC
members include Lars Eisen, Boris Kondratieff, Dr. Adrienne LeBailly, Eric Levine, Greg
McMaster, Chester G. Moore, Roger Nasci and Elizabeth Pruessner. While not representing
their employers on the TAC members include internationally recognized experts on vector -borne
diseases, entomology and public health issues.
The TAC has held eight (8) regular public meetings since December 2013. Each meeting has
been two hours, included a public comment period and had publicly available agendas and
minutes. Discussion has included a review of the 2013 program response guidelines, the issue of
adulticide applications and the City's draft program manual.
TAC members recommended improvements to the West Nile Management Program including
additional public communication, increasing the larval control boundary, additional funding to
allow for a weather -based larval control program, leveraging existing resources for source
reduction, and engaging governmental entities through a Vector Control District.
Recommendations Matrix
Staff
Option I
Option 2
Option 3
Option 4
Recommendation
Program
Rentove'human
Maintain as -is
Remove
Raise vector
Lower
Response -
cases as threshold
human
index
vector index
:0
Mav 6. 2014
Guidelines
and maintain the
cases as
threshold
threshold
vector index at
threshold
(currently
0.75
0.75)
Opt -out
Implement opt -out
No opt out at all
Pesticide
Opt out
Voluntary
Program
for businesses with
Sensitivity
registered
opt out with
education AND
Registry
businesses
education
pesticide
opt out
with
sensitivity registry
only
education
Zones
Implement four
No zones, entire
Three to
Seven zones
Flexible
zones in 2014
City is one
four zones
zones
"zone"
defined by
areas with
high
infected
mosquito
rates
Advisory
Adopt TAC
Adopt TAC
Implement
Allow
Panel
recommendations
consensus
a term limit
"current or
and allow
recommendation
to the
former" City
"current and
s
Advisory
Board and
former" City
Panel
commission
Board and
members to
commission
participate
members
Program Response Guidelines
Staff
Recommendation
Option 1
Option 2
Option 3
Option 4
Program
Remove human
Maintain as -is
Remove
Raise vector
Lower
Response
cases as threshold
human
index
vector index
Guidelines
and maintain the
cases as
threshold
threshold
vector index at
threshold
(currently
0.75
0.75)
TAC members discussed several issues related to the program response guidelines - the
document which establishes thresholds for specific actions in City mosquito control operations.
The program response guidelines include the fill spectrum of WNV activity, - from offseason
through a WNV outbreak. The program response guidelines were developed by staff, with advice
from the TAC, based on the Council -adopted West Nile Virus Policy.
TAC members presented information from the State of California's WNV programming which
included a response guideline model. Some TAC members found the California example was
more accessible and more easily understandable to laypeople than the current City program
response guidelines, which were administratively adopted in 2013. The California example uses
different thresholds and so would need to be adapted to reflect Fort Collins' WNV Management
Plan. Staff drafted program response guidelines that reflect the California example. Because the
timing for implementing the operational phase of the 2014 season is so close, this process will be
undertaken during the 2014 season and reviewed after it has been implemented, in 2015. Staff
May 6, 2014
expects to review any program response guideline improvements with the TAC and include the
group's feedback in a final plan. Currently, these guidelines are not formally incorporated into
the WNV Management Plan or Policy.
Maintain As -Is
A TAC option is that the program response guideline documents not change at this time. A
comprehensive review conducted by a third -party expert could be done to develop an alternative
decision document in the style of the State of California response guidelines. Development of this
document will take additional discussions and data, perhaps years of development to completely
perfect, but the concept is to simplify the program response guidelines in order to increase
public understanding of the response thresholds. Maintaining the program response guidelines
without change retains the human case threshold at "More than one human case being reported
per week in Fort Collins" and would also retain the 0.75 vector index.
Remove Human Cases
Human cases are reported three to four, (3-4) weeks after disease onset or four to five (4-5)
weeks after transmission, meaning thisisa lagging indicator because reports to public'health
officials by a doctor follows significantly after a person is bitten by on infected mosquito. Given
the disease -prevention purpose of the program, this means an outbreak could occur at least two
weeks before the City could take action. Human case thresholds ling more than other information
- the vector index is calculated weekly and so it is a better estimation of virus risk to residents.
A great deal of TAC discussion focused on Levels Ill and IV of the administrative program
response guidelines- the peak season and emergency level responses - where an operational
response might include an adulticide application. At Level III, the framework includes the use of
human cases as a threshold. The Level III program response guideline language requires:
• More than one human case being reported per week in Fort Collins -OR -
• More than one positive human blood donor reported for the season.
• Culex mosquito populations increasing and at or above historical average by I standard
deviation for that time period- OR -
• Mosquito infection rates of > 3.0 per thousand (0.3 percent) and increasing - OR -
• Vector index > 0.75 and increasing
Additionally, the TAC reviewed the use of blood donor cases - the program response guidelines
specify the use of one transmission identified by a blood donor per season as a threshold. TAC
members noted that this indicator does not reflect community virus amplitude or local activity
mainly because of the frequency of blood drives in Fort Collins during the WNV season.
Additionally, a different test is used for donated blood than is used to diagnose WNV and the test
is only effective a short time after infection. Some TAC members favor eliminating this indicator
or having a weighted ranking for use in decision -making.
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May 6, 2014
Raise vector index (VI) threshold
The vector index (VI) is a measure calculated to estimate the -average number of WNV-infected
mosquitoes collected per trap night (i.e., summation of the average number Culex mosquitoes
collected per trap night and the proportion infected for each species). Fort Collins uses a 0.75
vector index in its current program response guidelines to determine the threshold when a WNV
outbreak may be. occurring. The vector index had been 0.5 from 2007 to 2012 but, as part of the
annual program evaluation (PDCA), a decision was made to raise the index in 2013 to 0.75. The
decision to raise the index threshold increases community risk of virus transmission by requiring
a higher abundance of infected mosquitoes before a pesticide intervention. The TAC discussed
raising the vector index even further - to 1.0.
Lowering the vector index (VI) threshold)
Lowering the vector index from 0.75 to 0.5 was recommended by the Larinner County Health
Department Director. Lowering this threshold would make it easier to use adulticide when it
would be most effective to reduce the risk of disease transmission to humans. The 0.50 vector
index was used as the threshold in the Fort Collins program from 2007 to 2012. Some TAC
members expressed concern that lowering the threshold would result in more adulticide
applications in Fort Collins.
Staff recommendation
Staff recommends removing from the program response guidelines a requirement for the use of
human cases as a threshold and to maintain the vector index at 0.75. This recommendation is
consistent with the Management Policy to execute a program that reduces the incidence of City
residents contracting WNV. Removing human cases will make the City's response to a disease
outbreak faster and, in concert with the zone approach, could mean that a response would
swiftly target the specific area(s) where WNV-infected mosquitoes are high.
MOTION OPTIONS
Human Case and Vector Index Thresholds, and Program Response Guidelines
1. The motion language to propose Council action based on the staff recommendation to
remove human cases as a mandatory threshold is item 3.a. on the Sample Motions
(Attachment 8);
2. The motion language to propose Council action to raise the vector index is item 3.b. on
the Sample Motions attachment;
3. The motion language to propose Council action to lower the vector index is item 3.e. on
the Sample Motions attachment.
4. The motion language to propose Council action to direct the City Manager to present an
amended West Nile Virus Management Policy that includes Program Response
Guidelines is item 3.d. on the Sample Motions attachment.
May 6, 2014
Opt -out program
Staff
Recommendation
Option I
Option 2
Option 3
Option 4
Opt -out
Implement opt-
No opt -out at
Pesticide
Opt -out
Voluntary
program
out for businesses
all
Sensitivity
registered
opt -out with
with education
Registry opt-
businesses with
education
AND pesticide
out only
education
sensitivity
registry
TAC members were unable to reach a consensus on a recommendation for an opt -out program.
While many states have passed laws preventing anyone from excluding themselves from a
pesticide application a simple headlines search shows that there is a growing national movement
of people seeking to opt -out of conununity-wide pesticide spraying.
Voluntary opt -out
The concept for a voluntary program came from a TAC member who cited that private property
is sprayed with a pesticide without providing citizens the option 'cis to whether they wished to
participate. As suggested by that TAC member, in order to participate in the voluntary program
a resident would have a backyard consultation with City staff about source reduction actions
that could be taken, complete additional education either through a group class or through
video education, and receive a one-year opt -out from adulticide applications. Other TAC
members expressed concern that while the education would be helpful in preventing backyard
larval sites, the voluntary opt -out from adulticide applications will create untreated harborage
for infected mosquitoes that can extend significantly beyond the boundaries of the "opted -out"
property, decreasing the effectiveness of spraying and putting neighbors at risk of contracting
WNV without their consent. Allowing a voluntary opt -out creates an impact to neighbors — the
City's current policy is to provide a 300-500 foot buffer for pesticide sensitive households — that
could range from 10 neighboring homes in less dense areas and up to 100 homes in densely
populated areas. TAC discussion also questioned whether an opt -out program would actually
result in no pesticide impacting a residents' property given the aerosolized pesticide and
weather patterns that disperse the adulticide. This option would require hiring one more
technician to perform inspection and education throughout the annual season.
Business opt -out
The TAC representative for urban agriculture described concerns of food producers - that
covering even small farms to protect them from being sprayed with a pesticide is not feasible.
Fort Collins has twenty-six (26) registered community supported agriculture (CSA) farms
producing fruit, vegetables and herbs for sale at Farmers Market, wholesale and faun stand.
TAC members also described a similar challenge in covering bee hives used both for personal
use and for sale. Bees are susceptible to the pesticide sprayed in an adulticide application but
the City attempts to minimize impacts to bees by spraying after dusk when most bees are back in
the hive. Still, TAC members expressed concern that best management practices for beekeepers
to protect their hives do not exist. Staff has committed to working with CSU and others to
develop a suite of best management practices for beekeepers. Staff is also aware that some
research laboratories at CSU may be impacted by spraying near campus buildings. One option
for an opt -on is for registered businesses - agriculture, beekeepers, and research facilities - to
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May 6, 2014
prevent interference with those businesses. This option would also require each business to
participate in source reduction and personal, protection education. Businesses would need to
demonstrate a direct, long-term financial hardship from the pesticide application in order to
participate in the opt -out'- the intent of the opt -out is to provide relief from financial losses.
While additional work would be needed to develop the exact parameters of this opt -out, the
intent is to address concerns about impacting scientific research and anecdotal evidence that
consumers are less willing to purchase produce when they know that a farm has been subject to
a pesticide application. This option would also require an additional technician to perform
inspection and education throughout the annual season. Some TAC members questioned whether
the commercial interests of a business outweigh increasing disease transmission risks to entire
neighborhoods of the city.
Pesticide Sensitivity Registry opt -out
The current program allows only those registered on the state's pesticide sensitivity registry to
opt -out of an adulticide application. To be placed on the state's registry a certificate must be
signed by a physician licensed to practice medicine in the State of Colorado stating that you
have a medical condition that makes you sensitive to pesticides. Fort Collins has about 15 homes
listed on the pesticide sensitivity registry. Those homes are, depending on weather conditions,
provided a 300 to 500 foot buffer where spraying is terminated. Staff works with Colorado
Mosquito Control (CMC), the City's contractor, to ensure that these pesticide sensitive residents
are protected.
TAC members discussed evidence, depending on density, that providing this opt -out to one home
can exclude from 10 to 100 other homes from an adulticide application. Further, there is
concern that those excluded from the pesticide application are unaware of their exclusion
because the mane and residence of those on the pesticide sensitivity registry is confidential.
Some TAC members advocated for a notification to all properties excluded from an adulticide
application; this may prove operationally not feasible.
No opt -out
While the City allows applicants to the state's program to opt -out this is not a legal requirement.
The registry maintained by the Colorado Department of Agriculture does not pertain to mosquito
spraying, or any pesticide applications other than those made to control pests of lawns, trees and
shrubs. The stave registry does not prevent application of pesticides but only requires that
commercial applicators (like lawn care companies) notify people on the registry 24 hours before
an application is made to abutting property (immediately adjacent property that touches yours)
so that you can leave fora period of time or make other preparations for the application.
TAC members discussed the concept of eliminating any opt -out since Fort Collins is unique in
offering a pesticide sensitivity registry opt -out. The argument for no opt -out has to do with
efficacy of the adulticide application. A complete adulticide application of the spray area
ensures that more adult mosquitoes carrying WNV are killed, reducing the likelihood of disease
transmission. With an opt -out it is possible for more mosquitoes to avoid the pesticide.
Staff Recommendation
Staff recommends maintaining the use of an opt -out for residents on the pesticide sensitivity
registry and to add an opt -out for specific businesses that may experience financial loss from
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May 6, 2014
adulticide applications. The intent of these opt -outs is to cover those individuals with a
medically -identified reason to avoid exposure and to limit business impact to farmers,
commercial beekeepers, and some research laboratories. This recommendation follows with the
Management Policy direction to "limit adverse hmnan health impacts. "
MOTION OPTIONS
Residential and Business Opt -Outs
1. The motion language to propose Council action based on the staff recommendation for a
pesticide -sensitive registry opt -out is item La.i. on the Sample Motions (Attachment 8);
2. The motion language to propose Council action based on the staff recommendation for a
business hardship opt -out is item La.ii. on the Sample Motions attachment;
3. The motion language to propose Council action to provide a voluntary opt -out with
condition of specific education is item La.iii. on the Sample Motions attachment.
Treatment Zones
Sta Recommendation
Option 1
Option 2
Option 3
Zones
Implement four zones in
No zones, entire
Three to four
Seven zones
2014
City is one
zones
,one
TAC members discussed the use of zones in implementing the City's WNV Management
Program. Generally, the TAC supports the concept of using zones. Breaking the City into
smaller areas using topographic and historical program data could create a more effective WNV
Management Program. Historical information indicates that mosquito activity is usually highest
beginning in the southeast of Fort Collins and along the eastern border - near 1-25. A zone
approach could allow for additional public information, larval control, source reduction efforts,
and adulticide intervention in these areas.
In developing the zone approach the TAC reached out to a Colorado State University (CSU)
statistician who may be able to assist TAC members in designing the optimal number and size of
zones to ensure that the zones are small but still have enough of traps within each Zone to be
statistically confident in the vector index calculation. The City would be able to affect the
number and size of zones based on the number of traps in the field - more traps in the data
network could result in more, smaller zones. Each zone would be subject to the same program
response guideline thresholds before an adulticide application would be recommended to break
the transmission cycle.
A potential downside .for using zones is that some areas of town could be subject to more
frequent annual adulticide applications whereas other areas might never be sprayed. Some TAC
members have expressed that spraying a smaller area more often is not a preferable alternative
to spraying the larger area less often. Other TAC members have expressed that it snakes sense to
do control in a timely manner where the risk of WNV is highest, possibly decreasing the need to
spray larger areas.
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May 6, 2014
One Zone (entire city)
This option does not implement zones for 2014. The reasonthis option is being offered is that the
TAC has not yet received information front the CSU statistician about the appropriate zone
configuration. Adopting one zone could mean citywide adulticide applications if necessary in
2014. Applying the program citywide is less responsive to the vector index and mosquito trap
data and limits the ability to provide a targeted response, to hot spots. This option could result in
a larger area to be subject to a pesticide application.
Three to Four Zones
The initial recommendation from the CSU statistician - without analyzing the program details -
was for three to four zones. While the statistician has not delivered a detailed recommendation,
this option divides the City into three to four zones based on historical data. Adopting zones
would apply to all aspects of the program, not just a pesticide application, allowing targeted
communication and larval control in areas where the data network demonstrates higher human
health risks. The three to four zones would reduce the area subject to an adulticide'application,
focus the program on areas with a high vector index number, and allow for prompt response to
an increased disease transmission risk.
Seven Zones
The Larimer County Health Department presented the TAC with 2013 data in seven zones. This
was suggested to make it easier to calculate vector indexes for defined areas. The zones are
smaller geographic areas (approximately 9,000 to 45,000 people) and using this strategy could
mean the City would be applying adulticide primarily where the infected mosquito populations
are highest. There are parts of Fort Collins that may be sprayed more often due to the presence
of more infected mosquitoes in those areas, while other zones would be only sprayed during
outbreak scenarios because their vector index historically.has been low.
Flexible Zones
The concept of flexible zones" was discussed by the TAC with several members in support.
Flexible zones could move each week to ensure the highest risk areas are appropriately treated.
This option would work best after consultation with the CSU statistician to determine the
appropriate number of traps necessary to calculate a statistically valid vector index Some work
will have to be done to determine the right size - both how large a zone could get and what
parameters for changing the area considered. This approach was used in 2004, 2007, and 2012
but calculating the vector index for varying zones was challenging since the calculation may use
different trap locations each time. Finally, the flexible zones could be challenging to
communicate with residents - rather than residing in a set zone, each spray operation a resident
might have to search for their address and whether it is going to be in the adulticide application
area. Flexible zones would be an option to explore for future implementation but are not a staff
recommendation for the 2014 season.
Staff Recommendation
Staff recommends adopting a zone strategy in 2014 while a more formal review of the use of
zones continues. Zones allow a more targeted application of City's program and specifically the
program response guideline thresholds. Staff proposes four zones - using College Avenue and
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May 6, 2014
Drake to divide the City into quadrants. Historical data demonstrates that some areas of Fort
Collins have higher activity than others - these areas might be subject to an adulticide
application more often. The use of a four (4) zone approach reduces the size of the zones and
therefore the area subject to an adulticide application.
MOTION OPTIONS '
Treatment Zones
1. The motion language to propose Council action based on the staff recommendation to
create four (4) treatment zones is item I.b.i. on the Sample Motions (Attachment 8);
2. The motion language to propose Council action based on the Larimer County Health
Department suggestion to create seven (7) treatment zones is item Lb.ii. on the Sample
Motions attachment.
Advisory Panel
Staff
Recommendation
Option I
Option 2
Option 3
Advisory
Adopt TAC
Adopt TAC
Implement a
Allow "current or
Panel
recommendations
consensus
term limit to the
former" City Board
and allow "current
recommendation
Advisory Panel
or Commission
or former" City
s
members to
Board or
participate
Commission
members
The WNV Management Program and Policy stipulate the use of a three -member Advisory Panel
in weekly review of in -season data and in evaluating the Larimer County Health Department's
recommendations far an adulticide application. The City Manager's practice has been to
appoint the Panel members from the Natured Resources Advisory Board, Air Quality Advisory
Board and the Fort Collins medical community. Eliminating the Advisory Panel completely
would require a City Council action to amend the existing West Nile Virus Management Policy.
TAC members achieved consensus recommendations about the Advisory Panel as follows:
• Staff should develop a brief Advisory Panel Manual to clarify roles and responsibilities
• Advisory Panel information should be transparent
• Panel members should participate in the TAC meetings
Transparency was a very important issue to the TAC; members recommended ensuring weekly
virus activity provided to the Panel, the adulticide recommendations from the Larimer County
Health Director and the Panel recommendations to the City Manager be published on the City's
website.
Term Limits
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May 6, 2014
Service on City boards and commissions is generally term limited to two terms, under the City's
Boards and Commissions Manual, which effectively imposes a term limit oil two of the three
Advisory Panel members under the City Manager's present practice of appointing to City board
members to the Advisory Panel. This same tern limit has not been applied to the representative
of the medical community, through this interpretation is not yet written into the WNV
Management Plan or Policy. TAC members discussed whether a term limit on the Advisory
Panel is a good thing. Generally, institutional knowledge of the program is helpful in reviewing
the data and making a recommendation to the City Manager. Rather than establishing a uniform
term limit, the TAC discussed altering the Policy as applied and documenting in the WNV
Management Policy that "current or former" members of the two boards may participate,
irrespective of prior or ongoing terms of service with those other administrative bodies.
Panel Make-up
In addition to the consensus suggestions, the TAC discussed how to faster a succession plait for
the Advisory Pastel. This concept was raised in conjunction with the term limits topic. A
suggestion was made that the Panel should consist of two members of the boards and two
medical community members enlarging the Advisory Pastel - but that only one "vote" would be
offered to each cohort pair. This might be a method to develop some depth in understanding for
future members of the Advisory Panel.
Staff Recommendation
Staff recommends adopting the consensus items from the TAC regarding the Advisory Panel and
choosing to engage experienced Advisory Panel members by lifting de facto term limits on
Boardmember participation and adopting qualification language to allow "current or former"
board or commission members in order to allow informed and experienced Advisory Panel
members the option to continue their service without formal term limits. This will enable the Air
Quality Advisory Board and the Natural Resources Advisory Board to have an opportunity for
consultations with their Advisory Panel representative, while broadening the potential Panel
pool.
MOTION OPTIONS
Advisors Panel Composition
1. The motion language to propose Council action based on the staff recommendation to
eliminate Advisory Panel term limits is item 2.a. on the Sample Motions (Attachment 8);
2. The motion language to propose Council action to direct the City Manager to appoint
current or former City advisory board members to the Advisory Panel is item 2.b. on the
Sample Motions attachment;
3. The motion language to propose Council action to direct the City Manager to appoint
current or former Natural Resources Advisory Board and Air Quality Advisory Board
members is item 2.c. on the Sample Motions attachment.
Additional Topics
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May 6, 2014
Bees
TAC members recommended development of best management practices for beekeepers so they
call protect hives from pesticide applications. Several TAC members keep bees and conversation
on this topic indicated that knowledge and experience on hive protection varies. Given the
presence of CSU expertise as well as Agriculture Extension and other resources, staff was asked
to help convene development of best practices and to ensure publication of these
recommendations.
Program Evaluation
TAC members recommended the City invest in on unbiased third -party expert to review the City's
existing program and recommend enhancements. This recommendation was for an audit to
include having a person work on optimal zone sizes, review the chemicals used in adulticide,
evaluate the larval control program, develop a weighted program response guideline (the
California model) and to evaluate detailed options for an opt -out program. This
recommendation could come forward as a BFO enhancement offer.
Integrated Pest Management (IPM) Manager position
TAC members expressed support for funding an IPM Manager position. An offer was submitted
through Budgeting for Outcomes (BFO) for a position with responsibilities to include working
with various departments to holistically reduce pesticide and herbicide use throughout the City.
That offer is anticipated to come from Environmental Services and address more than just WNV
management. This offer will have to advance through BFO before a staff person could be
employed
FINANCIAL / ECONOMIC IMPACTS
Adoption of Ordinance No. 063, 2014 will appropriate $75,100 for program enhancements.
Adoption of certain WNV Management Program options may incur additional expenses by
requiring additional staff to perform certain activities.
ENVIRONMENTAL IMPACTS
Applying a pesticide in some or all of Fort Collins represents an environmental impact. This
budget appropriation is anticipated to reduce the likelihood of needing all adulticide as well as
larvacide application in the City. The larval control product used is deemed to have a low
environmental impact but it does reduce the abundance oj' mosquito larvae which has a
cascading impact on species which feed upon larvae and adult mosquitos.
BOARD / COMMISSION RECOMMENDATION
Staff has presented the 2014 season recommendations to the Parks and Recreation Board, Air
Quality Advisory Board and to the Natural Resources Advisory Board for comment. "
Dan Weinheimer, Policy and Project Manager, discussed the Ordinances and options for Council
consideration, as recommended by the Technical Advisory Committee. Additionally, he
discussed the response guidelines for the mitigation program and the vector index. In terms of
the opt -out program, Weinheimer discussed Council's four options: no opt -out, opt -out for
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May 6, 2014
pesticide sensitive registry, opt -out for businesses with education, and voluntary opt -out with
education.
Lee Thielen, 1308 Lindenwood, encouraged support of recommendations from the Health
District.
Jonathan Carnahan, Fort Collins resident, requested the ability to opt out of adulticide spraying
for individuals and local farmers.
Steve Thorson, 637 Skysail Lane, encouraged support of recommendations from the Health
District.
Nancy York,' 130 South Whitcomb, expressed concern regarding the effects of adulticide
spraying on bees.
Avril Strand, Fort Collins resident, discussed the effects of West Nile Virus and recommended
lowering the vector index.
Meghan Williams, 3000 South Taft Hill, supported the proposed opt -out for agricultural
businesses but expressed concern regarding the necessity to prove long-term financial hardship.
She discussed her use of integrated pest management and suggested the City do the same.
Chet Moore, Fort Collins resident, supported the Fort Collins surveillance set up and suggested
the use of four zones..
Dana Kunze, 2206 West Prospect, No Spray Fort Collins, opposed adulticide spraying and
discussed health issues other than West Nile.
Ray Martinez, 4121 Stoneridge Court, supported adulticide spraying and encouraged support of
recommendations from the Health District.
Dan Sapienza, Health District of Northern Larimer County, stated the Health District supports
adulticide application when necessary to prevent West Nile cases.
Mark Richards, Larimer County Board of Health Director, encouraged support of
recommendations from the Health District.
Joseph Gillan, FoCo Fresh Farm, opposed adulticide spraying.
Dr. Adrienne LaBailly, Latimer County Health Department Director, discussed the effects of
West Nile and encouraged support of recommendations from the Health District.
Kim Meierly, Latimer County Department of Health and Environment, reviewed West Nile
Virus statistics and encouraged support of recommendations from the Health District.
Gary Callahan, -Fort Collins resident, discussed the safety and usage of permethrin.
Greg McMaster, Fort Collins resident, supported the City's mosquito treatment program but
expressed concern that data has not been fully collected.
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Councilmember Troxell thanked the speakers and asked about recommendations should the
vector index hit the specified amount on the border of two zones. Mike Calhoon, Parks
Supervisor, replied the zone approach allows certain areas to be targeted with as much notice as
possible.
Mayor Pro Tem Horak asked why the City is taking charge of this spraying rather than the
County. City Manager Atteberry replied a policy was not in place approximately ten years ago
and stated he would research the topic.
Mayor Pro Tem Horak noted the County is charged with -the Health District and asked if other
cities in Latimer County have a similar monitoring program. Calhoun replied other communities
do not have monitoring to the same extent.
Mayor Pro Tem Horak asked how the City has jurisdiction to spray outside the city limits.
Calhoon replied larviciding does not occur on any properties without permission and stated the
County pays for adulticiding outside city limits; though the spraying is usually done in
coordination.
Councilmember Conniff asked Dr. LaBailly about the spraying policies for the remainder of
Larimer County. Dr. LaBailly replied the policies varied by municipality. ,
Councilmember Cunniff questioned whether spraying impacts disease rates and asked if
immunity can be developed to West Nile. Dr. LaBailly replied the current belief is that, if
infected once, immunity develops. She stated about 7-8% of the Fort Collins population, on the
high side, may be immune.
Councilmember Cunniff asked about the terminology for the commercial long-term financial
impact option. Weinheimer replied it looks at the extent of the duration of the impact.
Councilmember Cunniff asked if there have been discussions regarding monitoring of HOA
spraying. Calhoon replied contractors are placed on email distribution lists to be informed of
City spraying and would be illegally spraying if they overspray.
Councilmember Overbeck asked if there is more data than just the two years presented. Dr.
LaBailly replied the two years presented were the two big outbreak years since 2003 and were
the only years citywide spraying was recommended. She stated real-time data has been collected
since 2004. 1
Councilmember Campana made a motion, seconded by Councilmember Troxell, to adopt
Ordinance No. 063, 2014, on Second Reading.
Councilmember Overbeck suggested banners be placed along College Avenue regarding bite
protection. Weinheimer replied mass communication methods are already budgeted.
The vote on the motion was as follows: Yeas Campana, Cunniff, Troxell, Poppaw, Horak,
Weitkunat and Overbeck. Nays: none.
THE MOTION CARRIED.
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May 6, 2014
Mayor Pro Tern Horak made a motion, seconded by Councilmember Cunniff, to adopt
Ordinance No. 073, 2014, on First Reading.
City Manager Atteberry expressed concern regarding potential future demands of the General
Fund.
Mayor Pro Tem Horak suggested additional conversations with the County. .
Councilmember Cunniff discussed the logic of the use of General Fund revenue as opposed to
Natural Areas revenue.
The vote on the motion was as follows: Yeas: Campana, Cunniff, Troxell, Poppaw, Horak,
Weitkunat and Overbeck. Nays: none.
THE MOTION CARRIED.
Councilmember Campana made a motion, seconded by Councilmember Cunniff, that the City
Manager present for Council consideration a change to the West Nile Virus Management Plan to
allow city residents registered on the State Pesticide Sensitivity Registry to opt out of spraying
and to allow city businesses that can demonstrate they will experience financial loss from City -
administered adulticide applications to opt out.
Mayor Pro Tern Horak expressed concern regarding the opt -out provision for businesses and
suggested the possibility of monitors being placed in the locations of those businesses to ensure
the vector is not too high.
The vote on the motion was as follows: Yeas: Troxell, Poppaw, Horak, Campana, Cunniff,
Weitkunat and Overbeck.. Nays: none.
THE MOTION CARRIED.
Councilmember Campana made a motion, seconded by Councilmember Troxell, that the City
Manager present for Council consideration a change to the West Nile Virus Management Plan to•
establish four treatment zones in the city in order to allow more targeted application of the City's
program.
Mayor Pro Tent Horak and Councilmember Cunniff discussed the importance of data -driven
recommendations.
The vote on the motion was as follows: Yeas: Troxell, Poppaw, Horak, Campana, Cunniff,
Weitkunat and Overbeck. Nays: none.
THE MOTION CARRIED.
Councilmember Campana made a motion that the City Manager present for Council
consideration a resolution encouraging the City Manager to appoint at least two current or former
City advisory boardmembers to serve on the West Nile Virus Advisory Panel.
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May 6, 2014
Weinheimer discussed the difference between the Advisory Panel and the Technical Advisory
Committee (TAC).
Mayor Pro Tem Horak questioned the need for this item. Weinheimer replied it was intended as
another check in the process and noted the Techinical Advisory Committee is not engaged
throughout the season and contains more individuals.
Mayor Pro Tem Horak expressed concern with three members and suggested the possibility of
the Advisory Panel being a subset of the TAC with perhaps five members.
City Manager Atteberry noted this is not a decision -making group.
Councilmember Cunniff made a friendly amendment to replace the number in the motion with at
least two but no more than four.
Councilmember Campana made an amended motion, seconded by Councilmember Overbeck,
that the City Manager present for Council consideration two different resolutions, one
encouraging the City Manager to appoint at least two current or former City advisory
boardmembers to serve on the West Nile Advisory Panel, which would be made up of three
members total, and the second encouraging the City Manager to appoint at least three current or
former City advisory boardmembers to serve on a five -member Advisory Panel. Yeas: Horak,
Weitkunat, Overbeck, Campana, Cunniff, Troxell and Poppaw. Nays: none.
THE MOTION CARRIED.
Councilmember Campana made a motion, seconded by Councilmember Troxell, that the City
Manager modify the program response guidelines to eliminate the instance of human West Nile
infections as a threshold requirement for the application of adulticide.
Councilmember Cunniff expressed concern that many changes have been made to the program
and stated he is not convinced this change is necessary.
Councilmember Overbeck stated he would not support the motion as he would like to maintain
the vector index and include human cases.
Councilmember Campana stated the delay of spraying could cause more human cases and stated
the data supports this change.
Councilmember Overbeck stated there is not sufficient data to make this change.
The vote on the motion was as follows: Yeas: Weitkunat, Campana and Troxell. Nays:
Overbeck, Cunniff, Poppaw and Horak.
THE MOTION FAILED.
Councilmember Troxell made a motion, seconded by Councilmember Campana, that the City
Manager modify the program response guidelines to decrease the vector index used to determine
whether or not the West Nile Virus outbreak is occurring from the current vector index of 0.75 to
0.5.
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May 6, 2014
Councilmember Overbeck stated he would not support the motion.
Councilmember Troxell stated this.is first and foremost a public health issue.
Mayor Pro Tern Horak stated there are correlations, though not always causality, and stated there
is no overwhelming evidence that this should be changed.
The vote on the motion was as follows: Yeas: Weitkunat, Campana and Troxell. Nays:
Overbeck, Cunniff, Poppaw and Horak.
THE MOTION FAILED.
Extension of the Meeting
Mayor Pro Tern Horak made a motion, seconded by Councilmember Campana, to extend the
meeting past 10:30 p.m. Yeas: Campana, Cunniff, Troxell, Poppaw, Horak, Weitkunat and
Overbeck. Nays: none.
THE MOTION CARRIED.
Mayor Pro Tern Horak made a motion, seconded by Councilmember Overbeck, to adjourn until
after the Urban Renewal Authority meeting. Yeas: Cunniff, Troxell, Poppaw, Horak, Weitkunat,
Overbeck and Campana. Nays: none.
THE MOTION CARRIED.
(Secretary's note: The Council adjourned at this point in the meeting until the completion of the
Urban Renewal Authority meeting, at 10:58 p.m.)
Ordinance No. 052, 2014,
Vacating Scott Avenue Right -of -Way as Dedicated at Book 1174, Page 543
of the Larimer County Records, Adopted on Second Reading
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
This Ordinance, adopted on First Reading on April 1, 2014, by a vote of 4-3 (Nuys: Cunniff,
Overbeck, Poppaw) vacating Scott Avenue right -of -wary that is no longer necessary or desirable
to retain for public street purposes. This location will be the future site of the Scott Plaza
development project, which was approved at the Planning and Zoning Board Public Hearing on
January 9, 2014.
Public outreach for the Scott Plaza Project Development Plan and the Scott Avenue right-of-way
vacation request were as follows:
• August 22, 2013, Scott Plaza Project Development Plan neighborhood meeting
May 6, 2014
• December 23, 2013, Scott Plaza Project Development Plan Planning and Zoning Board
public hearing notice '
• January 29, 2014, Scott Avenue vacation request notice sent to adjacent property owners
• April 28, 2014, Scott Avenue vacation,request neighborhood meeting.
BACKGROUND / DISCUSSION
At First Reading of Ordinance No. 052, 2014, Vacating Scott Avenue Right -of -Way, there was
discussion regarding public outreach related to the Scott Avenue vacation request and the Scott
Plaza Project Development Plan (PDP). Public outreach for the Scott Plaza PDP and the Scott
Avenue vacation request were as follows:
• A neighborhood meeting was held -on August,22, 2013, to discuss the components of the
proposed Scott Plaza PDP.
• On December 23, 2014, notice was sent regarding the Planning and Zoning Board Public
Hearing for the Scott Plaza PDP. It recently came to staffs attention that the advertising of
the January 9, 2014 Planning and Zoning Board Hearing for the Scott Plaza PDP was
deficient as the mailing list failed to include some nearby property owners.
• To provide an opportunity for additional public comment, a neighborhood meeting was held
on April 28, 2014 to discuss the proposed Scott Avenue right-of-way vacation as it relates to
the surrounding neighborhood context and the Campus West Community Commercial
District Planning Study Report (2001).
The process for vacating public right-of-way is governed by City Code Section 23-115, which
provides the application and review process necessary for formal City Council consideration.
The review process includes public notification and review of the request by potentially affected
utility agencies, City staff, emergency service providers, and affected property owners adjacent
to the proposed right-of-way to be vacated. This review process was followed in conjunction
with the review of the Scott Plaza Development Plan. On January 29, 2014, nail notification
was sent to the property owners adjacent to Scott Avenue regarding the request to vacate Scott
Avenue. "
(Secretary's note: Councilmember Poppaw left the meeting prior to the discussion of this item.)
Tyler Siegmund, Engineering Department, provided a brief overview of the item and stated Scott
Avenue would remain as a pedestrian access easement if vacated.
Cameron Gloss, Planning Manager, discussed the public outreach process regarding the item and
stated the right-of-way is no longer needed and the vacation is in the best interest of the public.
Eric Sutherland, 3520 Golden Currant, asked how the public's interest is being served by this
right-of-way vacation.
Stephanie Sigler, Fort Collins resident, read two letters from adjacent property owners -in support
of the right-of-way vacation.
Mike Jensen, 208 South College, discussed the need for quality student housing in appropriate
locations and supported the right-of-way vacation.
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May 6, 2014
Randy Fitzpatrick, applicant, supported the right-of-way vacation.
Linda Ripley, Ripley Design, Inc., supported the right-of-way vacation
Josh Tabin, 626 West Oak, stated he has no financial interest in this project and noted he has
selected Fort Collins to live due to its bike friendly streets. He supported the right-of-way
vacation.
Councilmember Campana noted this is going to be a public access easement and will continue to
function with some multi -modal ability.
Councilmember Campana made a motion, seconded by Councilmember Troxell; to adopt
Ordinance No. 052, 2014, on Second Reading.
Councilmember Cunniff stated he voted against this item on First Reading due to the possibility
of a lack of proper notification for adjacent property owners. He requested assurance that these
types of process issues will not occur again.
The vote on the motion was as follows: Yeas: Weitkunat, Cunniff, Overbeck, Campana, Troxell
and Horak. Nays: none.
THE MOTION CARRIED.
Ordinance No. 053, 2014,
Vacating a Portion of Plum Street Right -of -Way as Dedicated
on the Dechairo Subdivision Plat, Adopted on Second Reading
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading oi'i April 1, 2014, vacates a portion of
Plum Street. right-of-way that is no longer necessary or desirable to retain for public street
purposes. The property owner adjacent to this portion of right-of-way is requesting the vacation.
This location is the future site of the Scott Plaza development project, which was approved at the
Planning and Zoning Board Public Hearing on January 9, 2014. "
Councilmember' Cunniff stated he pulled this item due to the same notice area issue as the
previous item. Additionally, he expressed concern this right-of-way vacation may impair the
ability to place enhanced bicycle travel on Plum Street.
Tyler Siegmund, Engineering Department, stated this item would clean up the property lines
along Plum Street and this project is increasing the bicycle lane width along Plum Street.
Councilmember Campana made a motion, seconded by Councilmember Overbeck, to adopt
Ordinance No. 053, 2014, on Second Reading. Yeas: Weitkunat, Cunniff, Overbeck, Campana,
Troxell and Horak. Nays: none.
THE MOTION CARRIED.
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May 6, 2014
Suspension of Rules
Councilmember Cunniff made a motion, seconded by Councilmember Overbeck, to suspend the
rules and extend the meeting past 12:00 a.m. Yeas: Weitkunat, Overbeck, Campana, Cunniff
and Troxell. Nays: Horak.
THE MOTION CARRIED.
Consideration of an Appeal of the Planning and Zoning Board's Decision
to Approve the Bella Vira, Phase 2, Major Amendment and Replat,
Planning and Zoning Board Decision Upheld
The following is the staff memorandum for this item.
"EXECUTIVE SUMMARY
On March 21, 2014 an appeal was filed concerning the Planning and Zoning Board Hearing
decision regarding a proposed Major Amendment and Replat to the Bella Vira, Phase 2, Final
Plan. The project is located at the southwest corner of South Overland Trail and West Elizabeth
Street. An amendment to the appeal was filed on March 28, 2014.
The Amended Appeal, received on March.28, asserts that the Planning and Zoning Board failed
to conduct a fair hearing, and properly interpret and apply relevant provisions of the Land use
Code.
BACKGROUND/DISCUSSION
The Bella Vira, Phase 2, Major Amendment and Replat are the subject of this appeal. The
original Bella Vira, Final Plan was approved in 2008. The Major Amendment to Phase 2,
submitted on January 2, 2014, proposes a change of use from multi family to single-family
attached dwellings. The Replat of the existing, approved 25-unit multi family plan, creates
individual lot lines and utility connections. The Planning and Zoning Board issued a decision on
March 13, 2014 to approve the proposed Major Amendment and Replat, and request for
Modifications of Standard to Sections 3.5.2 (E) (1) (2).
AMENDED APPEAL SUMMARY
The Amended Appeal asserts that the Planning and Zoning Board failed to conduct a fair
hearing, in that (a) the Board exceeded its authority or jurisdiction, (b) substantially ignored its
previously established rules of procedure, (c) considered evidence relative to its findings which
was substantially false or grossly misleading, and (d) improperly failed to receive all relevant
evidence offered by the appellant. The Appellant failed to reference any applicable sections of
the Land Use Code within the submitted appeal.
ASSERTIONS OF APPEAL
1. The Appellant asserts that the Planning and Zoning Board failed to properly interpret
and apply relevant provisions of the Land Use Code.
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May 6, 2014
The Appellant states:
IA)Bella Vira has no legally recognizable vested rights at this time.
The Staff Report (page 2 and 3) and contained:
On May 18, 2006, the Planning and Zoning Board approved the Bella Vira, Project
Development Plan (PDP) - #36-05A/B.
On May 13, 2008 the Final Plant was approved. Per Section 2.2.11(D) (3), this Final Plan was
granted a term of vested right for three years.
On March 3, 2011, the term of vested right was extended administratively by the CDNS Director
for one additional year per Section 2.2.11(D) (4).
On March 23, 2012, the tern of vested right was extended for the second time administratively
by the CDNS Director for one additional year. Section 2.2.11(D) (4) allows for only two
successive administrative extensions.
On May 16, 2013, the term of vested right was extended,for the third time by the Planning and
Zoning Board for one additional year. This extension will require all engineering improvements
in accordance with the approved utility plans must be completed no later than May 16, 2014.
The Staff Report (page 10/11) and contained:
In evaluating the Bella Vira, Filing 2, Major Amendment and Replat, and Modifications of
Standard, Staff makes the following findings of fact:
The request represents a Major Amendment/Replat for a Final Plan that was approved on May
13, 2008. This Final Plan is valid to May 16, 2014. If the subject Major Amendment is
approved, it will supersede the Final Plan.
The verbatim transcript from the Hearing of the Planning and Zoning Board (page 2)
contain:
"the original Project Development Plan was 16 approved in 2006, the Final Plant was approved
in 2008, and Filing I is under separate ownership and a separate development agreement. The
term of vested rights has been extended three times, with the Iasi request this last year extended
to May 16th of this year. "
Staff is available to answer further questions from Council regarding Final Plan vested rights.
The Appellant states:
1B) No sign had been posted on the property prior to the administrative decision
to waive the requirement for -the neighborhood meeting.
IC) No sign had been posted on the property prior to the consideration of a
Major Amendment and replat action token by the P & Z. Such action is
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May 6, 2014
the subject of this appeal. Improper signage is it failure to properly,
interpret and appl>>.
The verbatim transcript from the Hearing of the. Planning and Zoning Board (page 9110)
contain:
MR. WRAY: "But there was notice for this request sent out, there were signs posted... so that, I
think, addresses those questions. "
MR. WRAY: "The... as I understand, the sign at the recent location was actually posted on the
corner of Overland and West Elisabeth on the southeast corner where there is a sidewalk. On the
west side of Overland Trail there's really no sidewalk along that portion, or development at this
point. And when we received one of the calls today, they referenced the sign on that corner."
The Staff Report (page 9110) contained:
The LUC requires a neighborhood meeting be held for development proposals that are
subject to a Planning and Zoning Board (Type 2) review. Since the proposed Major
Amendment and Replat is for a previously approved FDP, the Director determined as
part of the staff review and recommendation required pursuant to Section 2.2.1 (A) (4)
that the development proposal would not have significant neighborhood impacts.
Therefore, a City -sponsored and facilitated neighborhood information meeting was not
held for this project.
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 213)
contain:
"There was a neighborhood meeting as part of the original approval of the Project Development
Plan in 2006, and the required neighborhood meeting for this request was waived by the
Director, and that decision was determined bused on staff determination that the development
proposal would not have a significant ... any significant neighborhood impacts. "
The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 718111)
contain:
MR. MINAITA: "Sure. Okay, so ... the issue of the neighborhood meetings and notification ... the
scope and nature of these requested changes that you guys are reviewing today, really do not
affect anything that deviated or tnodff ed existing prior approved plan. As 1 said, we're replacing
these six water sewers... twenty-five water and sewer services. So everything is the same... the
prior approval in 2007 had absolutely no issues of concern raised the neighborhood meetings
nor during the entire review process. We did have a neighborhood meeting; we had about six
folks from The Ponds, they were all very supportive. I still have the list, 1 know Pete still
probably has notes; if he doesn't, 1 have notes from that meeting. So, we were well received and
a lot of the interest has been from people in The Ponds regarding... actually interested in housing
in the new project. We've worked closely too with the HOA; we had to negotiate some things
with them. Nancy Eckhart was the president at the time; 1 know they notified The Ponds
association through their minutes and their meeting notices. We've also talked to The Ponds
recently... and part of this thing... they didn't know it existed, or whatever, but it's been a really,
difficult time, a desperate time for people who've invested in these kinds of projects, and very
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May 6, 2014
hard. Thank goodness things are starting to do better, and that's why this thing has come to life.
The building that's taking place right now is the single-family portion that Richmond Homes is
building; we don't have anything to do with that, although we did design and plan it. "
MR. WRAY: "There were some questions on, you know, the neighborhood meetings prior to this
request. I already mentioned the original neighborhood meeting that was part of the original
approval in 2006, and the reasons why the neighborhood meeting for this request was waived.
One of the questions was raised, why wasn't there a neighborhood meeting with the request to
extend vested rights last year? And that really wasn't a development proposal, that was an
action to extend, again, vested rights of a final development plan, (atd a neighborhood meeting is
not required for that. "
MR. WRAY: "There was a neighborhood meeting in 2006. This was a Type II review because of
the changes in the western portion of'the Filing 1, with the Residential Foothills change ... so
there was a neighborhood meeting in 2006. There wasn't one for this request, it was waived
because of the reasons that I stated, by the decision of the Director. "
The Appellant states:
ID) The intersection being contemplated at Elizabeth and Overland Trail does not
comport with applicable standards. This intersection appears to be poorly
thought through and is being designed around artificial constraints (vault) that
decrease its uglily and increase safely problems. Unsafe intersections are a
failure to proper( y interpret and apply.
The verbatim transcript from the Hearing of the Planning and Zoning Board (page 8)
contain:
MR. MINATTA: "Concerning the alignment at West Elizabeth and Overland Trail... the
alignment between West Elizabeth, you know as it goes across to the west ... to this new
extension across Overland Trail, it works fine, which... whenever streets are extended.from
developed to undeveloped areas, there are oftentimes circumstances that do require alignment
adjustments; and this one is a minimal condition that was reviewed and approved by the City
engineers and the private design engineers. The... improvements are not part of the scope of this
townhome replat anyway, so ... I don't know, I mean it's, I know it's a concern, but it's not part
of what you're looking at. Many of the issues... and regarding the turn lane, many of these
issues are mitigated on the basis of scope, the size of this project. So, the results of the traffic
study did not show a need for additional turn lanes because the traffic count for this project is
so low..."
MR. WRAY: "I just wanted to add to that, that that. was kind of the larger context that you were
asking about, but the approved project development plan .in 2006 and the traffic study was
based on twenty-five units for this Filing 2, and this request is not increasing the number of
units in any manner, it's still twenty-five units, just a different use type and lot configuration.
MEMBER SCHNEIDER: "No, and I just wanted to make sure that there was no significant
developments or changes prior... or since 2006 that would warrant a concern, regardless of the
number of units... the impact study from 2006 to current. "
May 6, 2014
The Staff Report (pages 8111) contained:
A Transportation Impact Study was stibmitted and evaluated by the City's_Traffic Engineering
Departmentfor the originally approved P.D.P. (May 18, 2006). Since the original approval has
not lapsed and the proposed number of dwelling units has not changed with the current Major
Amendment, a new and revised Traffic Study is not required and as such waived by the Traffic
Engineer .
The Major Amendment and Replat continues to comply with the applicable General
Development Standards of Article Three.
The approved Final Plat and required engineering improvements are part of Phase 1, and not
a part of Phase 2, Major Amendment and Replat. Staff is available to answer any further
questions Council may have regarding approved Final Plan and intersection design.
The Appellant states:
11,) Bella Vira does not have street connections to the North. When the Ponds
neighborhood was constructed, interconnecting streets were constructed to
create connectivitv.. insufficient sheet connections are a failure to properly
interpret and appl v.
The Record does not include anv information or response to lack of street connections to the
north of the property. Staff is available to answer any further questions Council may have
regarding approved Final Plan design, including street connections.
2. The Appellant asserts that the Planning and Zoning Board failed to conduct a fair
hearing.
The Appellant states: All facts as described in (1) above are relevant here.
2A) Bella Vira has no legally recognizable vested rights at this time.
See the above information from the Record in response to this allegation.
2B) No sign had been posted on the property prior to the administrative decision to
waive the requirement for theneighborhood meeting.
See the above information from the Record in response to this allegation.
2C) No sign had been posted on the properly prior to the consideration of a Major
Amendment and replat action taken by the P & Z.
See the above information from the Record in response to this allegation.
2D) The intersection being contemplated at Elizabeth and Overland 'Trail does not
conport with applicable standards.
See the above information front the Record in response to this allegation.
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May 6, 2014
The Appellant states: 2b: All facts as described in (1) above are relevant here.
Previously established rules of procedure include observing the Land Use Code.
Departing fi-oin the Land Use Code as -described in other sections. Of this complaint in
all regards is evidence that P & Z substantially ignored its previously established rules
of procedure.
The Appellant does not reference any specific rules of procedures, or Sections of the Land Use
Code. Staff is not able to offer any information or response from the Record on this
allegation.
The Appellant states: 2c: All facts as described in (1) above are relevant here.
The staff report than was prepared prior to the action under appeal provided a
timeline for all administrative and decision maker actions regarding the history of the
project. In this report, the month of May was consistentlye declared to
extension date for each of 4 extensions. However, the public record shows that the
approval gffinal design plans was acknowledged by the City and the applicant (is
having occurred on or before January 8th, 2008. Thus all espiraions and extensions
of vested rights can be assumed to have occurred in January or a previous month in
2007.
The verbatim transcript from the Hearing of the. Planning and Zoning Board (page 11)
contain:
MS. LANGENBERGER: "The utility plans were signed... the final date on the utility plan was
1130108, and the development agreement was dated, I think, in January of '08 as well: So it was
considered approved in January of '08. "
Staff is available to answer any further questions Council may have regarding correct date for
Final Plan approval.
The Appellant states: 2c: All facts us described in (1) above are relevant here.
City staff representatives reported that the intersection of Eli abeth and Overland Trail
had been approved prior to January 2008. This was evidence that the intersection was
safe and acceptable for the clesigm. However, ii was appcn-erht in the ltem-ing that city staff
representatives were unaware of the loge off3et in the cross street intersection. It did
appem-that what was being proposed fo-the intersection was unknown at that time.
The approved Final Plan and required engineering improvements are part of Phase 1, and not
a part of Phase 2, Major Amendment and Replat. Staff is available to answer any further
questions Council may have regarding approved Final Plan and intersection design.
The Appellant states: 2d: All facts as described in (/) above are relevant here.
Granted only 3 minutes oftestintony, after less than 8hours' notice of the public hearing,
the appellant took a best effort approach to ecplaining the facts that now form the
suarunmies of ullegations included in this Notice of Appeal. Sufficient information was
presented to introduce all allegations included in this notice.
W.
May 6, 2014
Staff is available to answer any further questions Council may have regarding the Appellant
assertions that the Planning and Zoning Board failed to conduct a fair hearing, and failed to
receive all relevant evidence offered by the appellant. "
City Attorney Roy provided a brief explanation of the appeals process.
Cameron Gloss, Planning Manager, outlined the project and decision of the Planning and Zoning
Board and discussed the appeal's primary assertions and staff response thereto.
Mayor Pro Tern Horak discussed the Council site visit.
Appellant Presentation
Eric Sutherland, Appellant, stated he has attempted to deal with this issue in other ways;
however, deficient infrastructure is being planned for the intersection of Overland Trail and
Elizabeth. He expressed concern regarding bicycle safety and stated the infrastructure at this
intersection should be consistent with others built in Fort Collins. He discussed two errors: the
unsafe, substandard intersection and the expiration of the developer's vested rights in 2013.
Charles Cuypers, Attorney representing the Applicant, objected that the record does not include
any evidence regarding defects in the vested rights of the applicant. He stated the record shows
the applicant to have proper vested rights and, Mr. Sutherland brought up the vested rights issue
in a later matter and is not property part of the record in this matter. Additionally, Mr. Cuypers
stated the evidence Mr. Sutherland is trying to introduce regarding deficiencies in street
standards is also not part of the record as the intersection is not part of Bella Vira Filing 2. He
also stated he does not believe Mr. Sutherland will be able to produce evidence of particular
standards which he feels are deficient.
Mr. Sutherland objected that Mr. Cuypers is not a party -in -interest and stated the transcript of the
Planning and Zoning Board hearing shows Mr. Sutherland contested the possibility that the
vested rights had lapsed.
City Attorney Roy stated the City Attorney's Office has never taken the positiorf that legal
counsel for a party -in -interest cannot speak at an appeal hearing. Mayor Weitkunat opted to
allow Mr. Cuypers to speak as a legal representative of a party -in -interest.
Deputy City Attorney Eckman stated he did not see information in Mr. Sutherland's original
testimony relating to the argument he made in his appeal that the plan had expired. He stated
Mr. Sutherland should be able to address potentially false and misleading information in the staff
report with new evidence that supports his argument. Mayor Weitkunat agreed that evidence
falls under the exception.
Mr. Sutherland argued the ground had not been disturbed and there was no suggestion of a
hardship unique to the property; therefore, the extension of vested rights should not have been
granted. He stated the intersection should be improved to appropriate City standards and noted
there were two other individuals at the meeting who also expressed concern about the
intersection. Mr. Sutherland went on to discuss the deficiencies of the intersection as planned.
(Secretary's note: The Council took a brief recess at this point in the meeting.)
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May 6, 2014
Opponent Presentation
Charles Cuypers, Attorney representing Bella Vira, introduced Jake Schroeder, Attorney for
Richmond Homes. He stated the property owned by Richmond Homes will be affected should
the appeal be upheld.
Jake Schroeder, Attorney for Richmond Homes, stated two pending matters are before the City
regarding the Richmond Homes portion of Bella Vira: an appeal related to the extension of the
vested rights final plan, and an application for determination of vested rights on the Bella Vira
project. He discussed the Richmond Homes' investment in the site.
Mr. Cuypers stated the appeal is without merit and discussed the series of vested rights
extensions as well as the approved plan and replat.
John Minatta, Developer and Owner of Bella Vira Townhomes, stated this appeal has kept them
from completing due diligence for the last seven weeks and stated Mr. Sutherland never
contacted him for information. Mr. Minatta went on to detail the acquisition of vested rights
extensions and noted standards for the intersection design have not changed since the original
project approval.
Appellant Rebuttal
Mr. Sutherland stated this issue should have been resolved weeks ago by recognizing the
deficiencies in the plan for the intersection and bringing it in line with the City's standards. He
stated he made repeated efforts to reach out to Richmond American Homes to express his
concerns. He asserted he is completing due diligence with this appeal.
Opponent Rebuttal
Mr. Cuypers stated Mr. Sutherland should have made this argument in March and suggested Mr.
Sutherland's comments regarding the intersection should not be a basis for sustaining the appeal
on the replat.
Mayor Pro Tern Horak made a motion, seconded by Councilmember Campana, that Council find
that the Planning and Zoning Board did not fail to conduct a fair hearing regarding Bella Vira
Filing 2 Major Amendment and Replat, #140001.
Mayor Pro Tent Horak requested the City Manager provide Council information regarding the
intersection not related to this appeal.
Councilmember Troxell stated the appealwasbaseless.
The vote on the motion was as follows: Yeas: Weitkunat, Overbeck, Campana, Cunniff, Troxell
and Horak. Nays: none.
THE MOTION CARRIED.
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May 6, 2014
Mayor Pro Tern Horak made a motion, seconded by Councilmember Campana, to uphold the
decision of the Planning and Zoning Board approving the Bella Vira Filing 2 Major Amendment
and Replat, #140001, because the Board property interpreted and applied the provisions of the
Land Use Code.
Councilmember Troxell stated the appeal was baseless.
Councilmember Cunniff stated he would support the motion; however, he requested issues
regarding the process be addressed at a later time.
Councilmember Campana stated mistakes regarding the approval date were made; however, he
commended staff work and stated processes do not need to be changed.
Mayor Pro Tern Horak stated Mr. Sutherland has not brought up this topic before Council in the
past.
The vote on the motion was as follows: Yeas: Weitkunat, Overbeck, Campana, Cunniff, Troxell
and Horak. Nays: none.
THE MOTION CARRIED.
Adiournment
The meeting adjourned at 12:30 a.m., Wednesday, May 7, 2014.
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