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HomeMy WebLinkAboutMINUTES-06/03/2014-RegularJune 3, 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, June 3 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 there were no changes to the published agenda. Citizen Participation Mel Hilgenberg, 172 North College, commended the presentation of the colors, announced community events, and urged citizens to contribute to the Fort Collins Symphony. Additionally, he discussed the need for affordable housing in the community. Bill Milwenny, no address provided, commented on the District Attorney and Judicial Court. Mary Lipscomb Lyons, Human Relations Commission, reported on an educational outreach program on mental health. Julie Mark, Environment Colorado, reported on her organization and its Climate Defenders campaign to raise support for limiting carbon emissions for existing power plants. Vanessa Fenley, Homeward 2020 Director,. reported on the summer point -in -time count of Fort Collins' homeless individuals and requested volunteers for the project. . Citizen Participation Follow-up Mayor Pro Tem Horak spoke about his participation in the last Homeward 2020 point -in -time count. CONSENT CALENDAR 1. Consideration and Approval of the Minutes of the May 6, 2014 Regular Council Meeting, The purpose of this item is to approve the minutes from the May 6, 2014 Regular Council meeting. June 3, 2014 2. Second Reading of Ordinance No. 074, 2014, Appropriating Prior Year Reserves in the Natural Areas Fund for the Purpose of Providing Natural Areas Programming Not Included in the 2014 Adopted City Budget. This Ordinance, unanimously adopted on First Reading on May 20, 2014, appropriates $6,221,325 from prior year reserves in the Natural Areas Fund. Nearly 80% of the funds will be used for land conservation. 3. Second Reading of Ordinance No. 075, 2014, Appropriating Unanticipated Grant Revenue in the Capital Projects Fund for the North College Improvements - Conifer to Willox Project and Authorizing the Transfer of Appropriations from the North College Improvements - Vine to Conifer Project Into the North College Improvements - Conifer to Willox Project. This Ordinance, unanimously adopted on First Reading on May 20, 2014, appropriates federal grant funds into the Capital Project Fund for the North College Improvements Project - Conifer to Willox. City Council appropriated the final piece of funding necessary for the North College Improvements Project - Conifer to Willox through budget revision actions at the end of 2013. Since that time, City staff successfully secured additional funding from the Colorado Department of Transportation (CDOT) via their Responsible Acceleration of Maintenance and Partnerships (RAMP) program. This Ordinance completes the final project budget with appropriations of new RAMP funding, previously secured . fiscal year 2015 federal grant funding, and savings from the recently completed North College Improvements -- Vine to Conifer project. 4. Second Reading of Ordinance No. 076, 2014 Appropriating Prior Year Reserves and Unanticipated Revenue in the General Fund for Cultural Development and Programming Activities Tourism Programming, and the Fort Collins Convention and Visitors Bureau. This Ordinance, unanimously adopted on First Reading on May 20, 2014, appropriates $195,981, of which $83,619 is for 2014 Cultural Development and Programming Activities (Fort Fund), $8,977 is for 2014 Tourism Programming (Fort Fund), and $103,385 is for 2014 Fort Collins Convention and Visitors Bureau (CVB) activities from Unanticipated Revenue (Lodging Tax) and Prior Year Reserves (unspent appropriations) in the General Fund Lodging Tax Reserves. Lodging taxes for 2013 were estimated at $955,000 with actual lodging tax revenues collected equaling $1,102,693 ($147,693 over estimate). 5. Second Reading of Ordinance No. 077, 2014, Amending Chapter 3 of The City Code to Allow Spirituous Liquor Tastings and to Increase the Number of Days Tastings are Permitted. This Ordinance, unanimously adopted on First Reading on May 20, 2014, amends the City Code to allow for spirituous (liquor) tastings, similar to what is currently allowed for beer and wine. This amendment will also extend the number of days tastings are permitted up to the maximum 104 tasting events per year. 262 June 3, 2014 6. Second Reading of Ordinance No. 078, 2014, Designating the Landblom Property, 116 North Pearl Street, as a Fort Collins Landmark Pursuant to Chapter 14 of the City Code. This Ordinance, unanimously adopted on First Reading on May 20, 2014, designates the Landblom Property at 116 North Pearl Street as a Fort Collins Landmark. The owners of the property, Kenneth and Michele Christensen, are initiating this request. 7. Second Reading of Ordinance No. 079, 2014, Authorizing the Conveyance of City Property to CCF Investments, LLC in Exchange for a New Park Site. Ordinance No. 079, 2014, unanimously adopted on First Reading on May 20, 2014, conveys property by Quit Claim Deed to CCF Investments, LLC. The City Property to be conveyed is near East Vine Drive and Turnberry and is located in Waterfield PUD Second Filing. This land was the location of a park in Waterfield Second Filing. The location of the park is moving with the Third Filing of Waterfield. The current park site will be conveyed to the developer, CCF Investments, LLC by Quit Claim Deed. 8. Items Relating to the Spring Competitive Process. A. Second Reading of Ordinance No. 080, 2014, Appropriating Unanticipated Revenue and Authorizing the Transfer of Appropriations Between Projects in the Community Development Block Grant (CDBG) Program. B. Second Reading of Ordinance No. 081, 2014, Appropriating Unanticipated Revenue in the Home Investment Partnerships (HOME).Program. Ordinance No. 080, 2014, appropriates the City's FY2014 CDBG Entitlement Grant from the Department of Housing and Urban Development (HUD) and CDBG Program Income and transfers funds from FY2013 CDBG Reprogrammed funds and FY2012 CDBG Unprogrammed funds for allocation in FY2014. Ordinance No. 081, 2014, appropriates the City's FY2014 HOME Participating Jurisdiction Grant from HUD and HOME Program Income. Both Ordinances were unanimously adopted on First Reading on May 20, 2014. 9. First Reading of Ordinance No. 092, 2014, Appropriating Unanticipated Revenue for the Senior Center Expansion Project and Transferring Appropriations to the Cultural Services and Facilities Fund for the Art in Public Places Program. The purpose of this item is to request an additional appropriation of $150,000 to the Senior Center Expansion Project. This additional funding was raised by the Senior Center Expansion Committee. These additional funds will be put toward the cost of completing the Core and Shell space as an Education Center/Auditorium, which will seat 120+ people with state of the art technology and can be used for presentations, distance learning, seminars or movies, and athletic events. Additional funds will be used, for other building furnishings to make this a World Class Facility. 263 June 3, 2014 10. First Reading of Ordinance No. 083, 2014, Appropriating Prior Year Reserves in the Benefits Fund for the Employee Wellness Center! The purpose of this item is to appropriate funds from the Benefits Fund reserves for facility/infrastructure enhancements to 256 West Mountain and start-up costs for the Employee Wellness Center (commonly referred to as an Onsite Clinic). Advantages to offering a Center include: • anticipated reduction in health care cost trends • greater ability to manage health risks through coaching and onsite disease management program • integrated medical records • established medical home for employees and dependents making health information available to providers • enhanced wellness efforts by supporting proactive health care management. 11. First Reading of Ordinance No. 084, 2014, Amending Section 28-17 of the City Code Regarding Traffic Code Violation Penalties. The purpose of this item is to reconcile two sections of the City Code setting the maximum penalty for Traffic Code violations. 12. First Reading of Ordinance No. 085, 2014, Amending Article IV, Division 2 of Chapter 23 of the City Code Regarding Disposition of Real Property. The purpose of this item is to amend Article IV of Chapter 23 of the City Code to authorize the City Manager to approve certain leases on City -owned property. The existing language in the City Code specifies that any disposition of real property, including leasing of real property, must be approved by City Council, with the exception of property at the Fort Collins -Loveland Airport. ' 13. First Reading of Ordinance No. 086, 2014, Making Various Amendments to the Land Use Code. The purpose of this item is to adopt a variety of changes, additions and clarifications to the Land Use Code that have been identified since the last update in July 2013. 14. First Reading of Ordinance No. 087, 2014, Authorizing Acquisition by Eminent Domain Proceedings of Certain Lands Necessary to Construct Public Improvements in Connection with the Vine Drive and Shields Street Intersection Improvements Project. The purpose of this item is to obtain authorization from City Council to use eminent domain, if deemed necessary, to acquire property interests needed to construct improvements at the Vine Drive and Shields Street intersection. The Vine Drive and Shields Street Intersection Improvements Project will construct a single lane roundabout for safety and air quality improvements at the intersection. The project is planned to begin construction in the spring of 2015 and be completed in the fall of 2015. The project budget consists of both federal and local funds. To construct these improvements, the City will need to acquire certain 264 June 3, 2014 property interests adjacent to the project area. The acquisitions include right-of-way and temporary easements from six property owners. Timely acquisition of the property is necessary to, meet the anticipated construction schedule. Staff fully intends to negotiate in good faith with all affected owners and is optimistic that all property negotiations can be completed prior to the start of the Project. Staff is requesting authorization of eminent domain for all property acquisitions for the Project to comply with federal acquisition requirements. Eminent domain action will be used only if such action is deemed necessary. 15. Items relating to Water Supply Shortage Response Plan and City Code Updates. A. First Reading of Ordinance No. 088, 2014, Adopting a Water Supply Shortage Response Plan. B. First Reading of Ordinance No. 089, 2014, Amending Chapter 26, Article II, Division 6 of the City Code to Clarify Sections Relating to Water Conservation. The purpose of these items is to update the City's Water Supply Shortage Response Plan that contains water restrictions to be put in place when a water shortage is anticipated, and to make City Code changes regarding the waste of water and water restrictions. Revisions to the Water Supply Shortage Response Plan are in response to employee and citizen feedback received during the 2013 water restrictions and more. recent community outreach. Highlights include adding definitions and associated restrictions for food production, splash parks, outdoor swimming pools and essential power -washing. The City Code changes provide a clearer• definition of the "waste of water," extending beyond irrigation use to service line and indoor leaks. In addition, hoses will require a hand - activated hose nozzle for spraying impervious surfaces. This section will reference the Water Supply Shortage Response Plan and how restrictions are put in place and lifted. Two sections are out of date and are proposed to be deleted. 16. Resolution 2014-044 Approving an Intergovernmental Agreement Between the City of Fort Collins and Platte River Power Authority for Participation in a Joint Resource Planning Case Study. In support of the development of a new Climate Action Plan, Fort Collins Utilities and Platte River Power Authority (Platte River) have developed the attached Intergovernmental Agreement (IGA). The intent of the Agreement into define the terms for Platte River to provide electric supply network modeling assistance to the City. The models will identify a potential mix of electric resources and the associated costs to help the City achieve a 20% reduction of greenhouse Gases (GHG) below 2005 levels by 2020, 80% reduction by 2030, and 100% reduction by 2050. Overall Climate Action Plan reduction measures include decreases in emissions related to transportation, building energy use, waste management and electricity. The focus of the work detailed in this IGA is to provide modeling to define the necessary changes to the City's existing electric energy supply that will be required in order to achieve stated GHG 265 Jute 3, 2014 reductions. The modeling done by PRPA will identify the portfolio of resources needed and their associated costs. 17. Resolution 2014-045 Approving an Amended and Restated Intergovernmental Agreement Between the City of Fort Collins and the Poudre Valley Fire Protection District Establishing the Poudre Fire Authority. The purpose of this item is to approve the revised Intergovernmental Agreement (IGA) which forms the Poudre Fire Authority and the associated Revenue Allocation Formula (RAF) which allocates a share of City revenue toward the provision of fire and rescue services within Fort Collins. 18. Resolution 2014-046 Adopting the Fort Collins River Downtown Redevelopment Zone Design Guidelines. The purpose of this item is to adopt the Design Guidelines for the River Downtown Redevelopment (R-D-R) zone district which, will act as supplement to the new standards that are to be codified in the Land Use Code. 19. Resolution 2014-047 Approving an Intergovernmental Agreement with the Colorado Department of Transportation for Reimbursement of Wetland Mitigation Costs. The purpose of this item authorizes the City to enter into an agreement to receive $99,450 from Colorado Department of Transportation (CDOT) for wetland mitigation. Four local CDOT road projects impact a total of 1.02 acres of wetlands. These impacts must be mitigated through payment for the creation of additional wetlands of equal size and type. CDOT desires to keep the mitigation effort local and proposes to reimburse the City for wetlands created within the Poudre River floodplain. 20. Resolution 2014-048 Approving Expenditures from the Art in Public Places Stormwater Utilities Account to Commission an Artist to Create Art for the West Vine Basin Project. The purpose of this item is to approve expenditures from the Art in Public Places Stormwater Utility Account to commission an artist to create art for the Art in Public Places West Vine Basin Project. The expenditures of $24,960 will be for design, materials, fabrication, installation and contingency for an artist to create an interactive and interpretive plaza at the West Vine Basin site. ***END CONSENT*** Councilmember Cunniff withdrew Item Nos. 13 and 18, First Reading of Ordinance No. 086, 2014, Making Various Amendments to the Land Use Code and Resolution 2014-046 Adopting the Fort Collins River Downtown Redevelopment Zone, DesignGuidelines from the Consent Calendar. Eric Sutherland, 3520 Golden Currant, withdrew Item No. 17, Resolution 2014-045 Approving an Amended and Restated Intergovernmental Agreement Between the City of Fort Collins and 266 June 3, 2014 the Poudre Valley Fire Protection District Establishing the Poudre Fire Authority from the Consent Calendar. Mayor Pro Tent Horak made a motion, seconded by Councilmember Campana, to adopt and approve all items not withdrawn from the.Consent Calendar. Yeas: Cunniff, Horak, Weitkunat, Campana, Troxell, Overbeck and Poppaw. Nays: none. THE MOTION CARRIED. Staff Reports Rick Richter, Infrastructure Services Director, reported the Xcel pipeline project is ahead of schedule. He reported on summer construction projects throughout the city. Mayor Pro Tem Horak asked how road closure information is visually displayed on the City's web page. Richter replied each closure is mapped and detailed information regarding the closure is provided. Councilmember Cunniff asked how staff plans to deal with drivers using unofficial detour routes through neighborhoods. Richter replied flaggers are used as necessary at, neighborhood entrances. City Manager Atteberry reported on the competitive process for the new Utilities Executive Director. Councilmember Reports Councilmember Cunniff reported on a tour of the mall deconstruction process. Mayor Weitkunat reported on a joint meeting with Fort Collins, Loveland, Berthoud and Latimer County. Additionally, she reported on the Platte River Power Authority monthly meeting and the Airport Steering Committee meeting. Ordinance No. 086, 2014, Making Various Amendments to the Land Use Code, Adopted on First Reading The following is the staff memorandum for this item. "EXECUTIVE SUMMARY The purpose of this item is to adopt a variety of changes, additions and clarifications to the Land Use Code that have been identified since the last update in July 2013. 267 June 3, 2014 BACKGROUND / DISCUSSION The Land Use Code was first adopted in March 1997. Subsequent revisions have been recommended on a regular basis to make changes, additions, deletions and clarifications that have been identified since the last update. The proposed changes are offered in order to resolve implementation issues and to continuously improve both the overall quality and "user - friendliness" of the Code. The proposed revisions (except for some late changes to Sections 2.13.1, 2.13.2 and 2.13.10 which will be considered by the Board prior to City Counc•il's Second Reading of Ordinance No. 086, 2014) were considered by the Planning and Zoning (P&Z) Board at its May 8, 2014 regular meeting. All of the proposed revisions included in the Ordinance except as mentioned above have received unanimous approval from the P&Z Board. While there are a high number of revisions compared to previous years, there are three new additions to the Land Use Code that are highlighted for Council's benefit. • Anew Site Plan Advisory Review process is being added to address development projects associated with other governmental agencies rather than relying on state statutes. (Ordinance Section 2, Item Number 975.) - • A comprehensive approach to allowing and regulating three distinct sizes of Solar Gardens is being added in response to the City's new Solar Power Purchase Program. (33 Ordinance Sections, Item Number 967.) In the River Downtown Redevelopment (R-D-R) zone, the new development standards have been significantly revised and improved in order to codify the findings R-D-R Design Standards and Guidelines project that is reaching its conclusion. (Ordinance Section 64, Item Number 987.) During the Board's deliberation, the following topic was discussed individually Addition of Permitted Use: Ordinance Section 1. Item number 976 This revision adds a purpose statement and two applicability statements to provide clarification about the process. Also, where an applicant is requesting adding a use within or adjacent to an existing residential neighborhood, two, not one, neighborhood meetings would be required at specific time points in the process. Three members of the public addressed the Board and provided letters to supplement their testimony. While these speakers supported the proposed code revisions in draft Ordinance, they went on to ask the Board to also consider eliminating the Addition of Permitted Use process in nine zone districts on the basis that these districts feature residential land uses and, Ias such, are not appropriate locations for requests for an Addition of Permitted Use. These speakers represented that the A.P.U. process offers a degree of land use flexibility that may be more suited for non-residential zones but contained the risk of unpredictabilityfor residential zones. June 3, 2014 The Board discussed this issue and decided that the changes suggested by the public input went beyond the scope of the 2014 annual update to the Land Use Code. The Board indicated that in the fall of 2013, a P&Z sub -committee, along with interested citizens, explored a wide range of issues associated with the Addition of Pennitted Use process and detennined that the minor changes as contained in the draft Ordinance were reasonable. Further, the Board indicated that, in general, the A.P. U. process is working and effectively balances land use flexibility with predictability on a case -by -case basis. The Board considered the public input and, after deliberation, decided to not offer any changes to the draft Ordinance as it relates to the Addition of Permitted Use process but added that the topic bears further discussion at an upcoming work session. FINANCIAL IMPACTS Code revision number 982 provides for greater opportunities for Unlimited Indoor Recreation Establishments (greater than 5,000 square feet) and Limited Indoor Recreation Establishments (under 5,000 square feet) by allowing these uses to now go into the H-C, Harmony Corridor zone, but only as secondary uses. Unlimited Indoor Recreation uses include large-scale gymnasium -type facilities such as for tennis, basketball, swimming, indoor soccer and the like. Limited Indoor Recreation uses include yoga studios, exercise clubs, dance studios, martial arts schools, and arts or crafts studios. This change allows the Land Use Code to respond to changing trends and conditions by providing for a wider distribution of facilities that promote recreation, health and wellness across the entire City. ENVIRONMENTAL IMPACTS Code revision number 967 enacts a comprehensive approach to allowing solar installations of three varying sizes on a city-wide basis in 24.zone districts. The City of Fort Collins recently, adopted the Solar Power Purchase Program (SPn), which will buy about 5 megawatts (MW) of new, locally -installed solar- capacity to help meet the community's renewable energy commitments under the Colorado Renewable Enerfy Standard. With new opportunities for residents and businesses to take advantage of the SP and other solar program elements, as well as growing interest in solar energy sources in general, there will now be three new land uses, along with new rules and provisions, for small, medium and large-scale solar energy systems. BOARD / COMMISSION RECOMMENDATION All of the proposed changes (except those changes to Sections 2.13.1, 2.13.2 and 2.13.10 which will be considered by the Board prior to second reading) have been discussed and refined in conjunction with the Planning and Zoning Board at various work sessions between February and May of this year. On May 8, 2014, at the regular meeting of the P&Z Board, the Board considered the proposed revisions and voted unanimously to recommend to City Council approval of all the changes. In addition, the revisions to the R-D-R, River Downtown Redevelopment Zone District were specifically discussed with other boards and commissions because these changes codify the findings of a separate design project. Referred to as the Fort Collins R-D-R River Downtown 269 June 3, 2014 Redevelopment Zone District Design Standards and Guidelines, the project resulted in significant revisions to the development standards within this district. Both the proposed standards and guidelines were presented to die following: • Landmark Preservation Commission • Downtown Development Authority • Parking Advisory Board • Economic Advisory Commission • Natural Resources Advisory Board The design standards are codified in the Ordinance. The supplemental Design Guidelines, however, which contain images and suggestions, are being brought forward for Council consideration as a separate Resolution (Attachment 2 in Agenda Item 17, Resolution 2014-046 Adopting the Fort Collins River Downtown Redevelopment Zone Design Guidelines). PUBLIC OUTREACH The proposed revisions to the Addition of Permitted Use were derived from discussions among the Planning and Zoning Board ad -hoc sub -committee and interested citizens. Councilmember Cunniff asked how these amendments are related to the addition of a permitted use (APU) process and expressed concern regarding the fact this item was on the Consent Calendar. Karen Cumbo, Planning, Development, and Transportation Services Director, replied the APU process has been discussed in depth for the past several months; however, this set of annual Land Use Code changes does not include the APU zoning district changes. She stated the Planning and Zoning Board will be reconsidering the issue. Mayor Weitkunat requested information regarding the annual Land Use Code update process. Ted Shepard, Chief Planner, replied the general purpose of the annual changes is to revise the Land Use Code with changes that have accumulated over the past year. He noted larger substantive issues may be presented to Council separately. Eric Sutherland, 3520 Golden Currant, expressed concern the Land Use Code is not being followed. Additionally, he suggested a Land Use Code and City Code amendment that would allow, by citizen initiative, changes to the Land Use Code to be considered by the Planning and 'Zoning Board. Paul Patterson, 2936 Eindborough, expressed concern regarding the APU section of the Land Use Code stating the process should be prohibited in residential zone districts. Meg Dunn, 720 West Oak, opposed the use of the APU process in single-family residential zone districts. Gina Jannett, 730 West Oak, suggested the applicability of the APU process should be restricted in residential zone districts given the precedent its use could set. 270 June 3, 2014 Bill Whitely, 618 West Mountain, agreed with the previous speakers and stated the APU process is frightening for residents of lower -density neighborhoods. Councilmember Cunniff asked how this Ordinance would interact with the Planning and Zoning Board modifying the APU section. Shepard replied the Planning and Zoning Board will discuss the topic at its next work session and, should it direct staff to move forward, some options will be crafted for a public outreach effort. Draft language would then be presented at a subsequent work session and ultimately, the Board would need to adopt any changes to the Land Use Code at a formal meeting, after which an Ordinance would be presented for Council consideration. Mayor Pro Tern Horak made a motion, seconded by Councilmember Troxell, to adopt Ordinance No. 086, 2014, on First Reading. Mayor Pro Tern Horak stated the process outlined by staff to make changes to the APU process makes sense and suggested a timeline be crafted by the City Manager. Councilmember Cunniff requested the timeline prior to Second Reading of the Ordinance. Councilmember Campana stated the City Plan is sometimes ahead of the Land Use Code and noted the APU process has been a tool used to aid in achieving the goals and visions of City Plan prior to the Land Use Code catching up with it. The vote on the motion was as follows: Yeas: Horak, Weitkunat, Campana, Troxell, Overbeck, Poppaw and Cunniff. Nays: none. THE MOTION CARRIED. Resolution 2014-046 Adopting the Fort Collins River Downtown Redevelopment Zone Design Guidelines, Adopted The following is the staff memorandum for this item. "EXECUTIVE SUMMARY The purpose of this item is to adopt the Design Guidelines for the River Downtown Redevelopment (R-D-R) zone district which will act as supplement to the new standards that are to be codified in the Land Use Code. . BACKGROUND I DISCUSSION The River Downtown Redevelopment Zone Design Standards and Guidelines Project was presented to the City Council at its work session on April 8, 2014. Based on Council feedback, emphasis was added that parking lots and parking structures are inappropriate along the Poudre River. Generally, Council provided positive comments and directed staff to move forward with a Resolution. 271 Jute 3, 2014 The regulatory approach for both redevelopment and new development in the River Downtown Redevelopment (R-D-R) zone consists of standards that are to be codified by Ordinance in the 2014 Land Use Code Update and guidelines which are to be adopted by Resolution in a supplemental document referred to as Design Guidelines. This Resolution pertains to the Design Guidelines. The River Downtown Redevelopment (R-D-R) zone currently includes a set of development standards that were originally adopted with City Plan and the Land Use Code in 1997. Since then, several developments have been brought forward highlighting the need to take additional steps to preserve the distinctive character as the commercial and industrial core of our City. City Plan Update - 2011 identified two action items relating to evaluating and adding design standards to improve the set of standards to better address neighborhood, site and building attributes. The R-D-R zone district includes the original town site. and the historic commercial and industrial core of our City. It is characterized by a wide variety of buildings that have served a multitude of uses over the decades. Ranchway Feeds, Harmony Mill, Feeders Supply and the former electrical generating plant (now the CSU Powerhouse) are all unique buildings that reflect our history,as the region's center of commerce. The primary attribute of the area, the Poudre River, historically attracted water -powered agricultural -related industry and is now the premier natural feature for our City. A continuous change with railroad lines, two state highways, and the general expansion of the Downtown core has resulted in a range of architectural styles that are the essence of today's mixed character and charm. The proposed new Design Guidelines are specifically intended to maintain this ag-industrial character with the compatibility of redevelopment. The existing standards that govern the relationship with the Poudre River will be retained as these standards have been found to be effective at protecting the natural riparian features while allowing development to occur in a sensitive fashion. The proposed new Design Guidelines build upon previous efforts that address this area, particularly the Downtown River Corridor Implementation Plan (2000) and the Downtown River District Streetscape Improvements Project (2008). These two efforts formed the basis of the public improvements along Linden Street that were completed in March 2012. The new standards call for new development to complement these public improvements. The proposed new guidelines are also in alignment with the proposed new design for a fully - improved Willow Street. The Engineering Department is currently overseeing a design project for Willow Street between North College Avenue and Linden Street and the projects have been in close coordination. The project has also been in close coordination with the Poudre River Downtown Project being coordinated by the Parks and Natural Resources Departments. It is noteworthy that this project is not a land use plait. It is not all up -zoning or down -zoning. Nor are there any changes to maximum allowable height standards. The proposed guidelines address how building height can be addressed in redevelopment projects based on the context of the site and proximity to historic structures. The fundamental approach is context -based site 272 June 3, 2014 analysis and sensitive design that is -'complementary to the area's character. The proposed guidelines acknowledge that this area has an ag-industrial character that is not as refined as the more ornate portion of the Old Town Historic District across Jefferson Street with its retail and entertainment activity and architectural embellishments. In contrast, the R-D-R zone features commercial and industrial uses where building forms are simpler and less detailed. Industrial activities such as manufacturing and outside storage and truck docks are part of the character. In summary, the Design Guidelines implement the action plan from City Plan Update - 2011 in order to respect the ag-industrial character of the area. They enhance, clarify and update the existing standards that govern the R-D-R zone district. If authorized, the new standards will be codified directly into the Land Use Code for maximum effectiveness. The Design Guidelines, however, will include explanatory text, graphics, and images that will supplement the regulatory approach for the benefit of land owners, architects and developers in order to provide more detail and remove ambiguity. Overall, the Design Guidelines are anticipated to result in an improved development review process for all interested parties. FINANCIAL / ECONOMIC IMPACTS There are no direct financial or economic impacts associated with the adoption of the Design Guidelines. Indirectly, however, the potential revitalization of the area could create greater internal economic activity without having to depend on customers and patrons crossing Jefferson Street. Decreasing dependence on spillover activity from Downtown would create a positive economic outcome for the immediate area. . ENVIRONMENTAL IMPACTS There are no direct environmental impacts associated with the adoption the Design Guidelines. Indirectly, however, the emphasis on use of durable materials would lead to longer life cycles for new structures. BOARD / COMMISSION RECOMMENDATION The Planning and Zoning Board discussed this item at its work session on January 3, 20,14. The Planning and Zoning Board unanimously approved the 2014 Land Use Code Update, which contains the standards upon which the guidelines are based, at its regular meeting on May 8, 2014. Board and Commission Outreach: - Work Session's - Landmark Preservation -Commission (Jute 26, October 23, and December H, 2013) 273 June 3, 2014 - Work Session with Planning and Zoning Board (January 3, 20M) - Downtown Development Authority (February 13, 2014) - Parking Advisory Board (March 10, 2014) - Natured Resources Advisory Board (March 19, 2014) - Economic Advisory Commission (April 17, 2014). PUBLIC OUTREACH - Tour of subject areas with consultant and stakeholder group (June 26, 2013) - Poudre River Project Open House, Lincoln Center (June 26, 2013) - Public Workshops (October 3, 2013, November 13, 2013 and April 30, 2014) - Website: http://www.fcgov.conVhistoricpreservation/otrd-design-standards-and-guidelines.php (October, 2013) - Poster and table at joint Planning and Transportation open house, Museum and Discovery Science Center (February 20, 2014) - Correspondence with representatives of Save the Poudre and Protect Our Old Town Homes (Ongoing). " Councilmember Cunniff asked about this plan's consideration of design compatibility with respect to retaining walls and other structures. Ted Shepard, Chief Planner, replied the language was amended to be more specific regarding development along the River such that there would be a prohibition on parking garages, parking structures, and parking lots as well as retaining walls. Councilmember Troxell made a motion, seconded by Councilmember Campana, to adopt Resolution 2014-046. Yeas: Weitkunat, Campana, Troxell, Overbeck, Poppaw, Cunniff and Horak. Nays: none. THE MOTION CARRIED. Resolution 2014-049 Amending the West Nile Virus Management Policy and Providing Direction to the City Manager Regarding Implementation of the Program, Adopted Option B The following is the staff memorandum for this item. `EXECUTIVE SUMMARY The purpose of this item is to adopt enhancements to the West Nile Virus Management Program. Staff is presenting two options for Council consideration; both would update the West Nile Virus Management Policy. The program changes being offered include dividing the City into operational zones, considering changes to the program response guidelines (operational practices), implementing a limited business opt -out and maintaining a residential opt -out program based on the pesticide sensitivity registry maintained by the Colorado Department of Agriculture, and eliminating the Advisory Panel that advises the City Manager on adulticide recommendations. 274 June 3, 2014 BACKGROUND / DISCUSSION On May 6, 2014 the City Council reviewed options to enhance the West Nile Virus Management Plan. Options presented to Council came from the West Nile Virus (WNV) Technical Advisory Committee (TAC) and from staff after review of the 2013 season and historical data. West Nile virus (WNV) has been in Colorado since 2002 and the threat of disease transmission is now an annual concern. WNV is a disease transmitted to humans by Culex mosquitoes, which are the vector (source of transmission). WNV-infected mosquitoes infect birds, which can then be bitten by many uninfected mosquitoes, greatly amplifying vector 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. Opt -out program City Council directed staff to maintain the opt -out program for residents on the pesticide sensitivity registry and to develop con opt -out program for businesses able to demonstrate a sustained economic impact. The State of Colorado Department of Agriculture maintains the pesticide sensitivity registry; to be placed on the registry a certificate must be signed by a licensed physician stating that an individual has a medical condition that makes him/her 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 from where spraying occurs. Staff works with Colorado Mosquito Control (CMC), the City's contractor, to ensure these pesticide sensitive residents are protected. A business opt -out program was recommended by members of the TAC. The TAC representative for urban agriculture described concerns of food producers, namely 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) fctrnns producing fruit, vegetables and herbs for sale at Fanners Market, wholesale and farm stand. TAC members also described a similar challenge in covering bee hives used both for personal and commercial use. Bees are susceptible to the pesticide used in an adulticide application, but the City attempts to minimize impacts to bees by 275 June 3, 2014 spraying after dusk when most bees are in the hive. Staff is also aware that some research at CSU may be impacted by spraying near campus buildings. An opt -out for registered businesses - agriculture, beekeepers, and research facilities - would prevent interference with those businesses. This option would also require each business to participate in source reduction and personal protection education. Businesses seeking to opt -out would need to demonstrate a direct, long-term financial hardship from the pesticide application in order to exercise the option - 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 recognize 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. Zones City Council supported the concept of using zones. Staff plans to begin with four (4) zones in 2014 and work with a statistician to determine the most effective zone program for future seasons. Breaking the City into smaller areas using topographic and historical program data will 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 I- 25. A zone approach could allow for additional public information, larval control, source reduction efforts, and adulticide intervention in these areas of highest disease activity. The TAC has started to work with a Colorado State University (CSU) statistician who may be able to assist in designing the optimal number and size of zones to ensure that the zones are small but still have enough traps within each zone to be statistically relevant 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. Adopting zones would apply to all aspects of the program, not just pesticide application, allowing targeted communication and larval control in areas where the data network demonstrates higher human health risks. The four zones that staff plans to adopt 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. Human Case Threshold Human cases are a lagging indicator because reports to public health officials by a doctor follow significantly after a person is bitten by an infected mosquito. Human cases'of transmission of WNV are reported three to four (3-4) weeks after disease onset or four to five (4-5) weeks after transmission. Estimates front reviewing individual cases indicate that, of average, cases were reported 22 days after symptoms began and symptoms begin about one week after infection. Spraying in 2013 occurred• about two weeks after the majority of reported individuals were 276 June 3, 2014 infected, but before the majority of cases were reported. This delay in the time from infection to reporting the infection and City action can have serious public health impact. Human case identification lags more than other information - the vector index is calculated weekly and so is a better estimation of virus risk. The vector index takes into account mosquito abundance, infection rates of the trapped mosquitoes and the location of infected mosquitoes. The program response (operational) guidelines for Level III (peak season intervention) currently require that: • More than one human case being reported per week in Fort Collins ME • More than one positive human blood donor reported for the season. �..►J/12 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 • Vector index > 0.75 and increasing Reconciling Zones with a Human Case Threshold Taken in context of the direction provided by City Council on May 6, 2014 regarding Zones and the Human Care Threshold, retaining human cases, (m discussed above, may compromise the effectiveness of the using a treatment -zone approach. Among the motions that City Council approved on May 6: • Four (4) zone approach to monitoring and spraying for the virus • Retaining the 0.75 vector index Among the options that the Council declined to adopt on May 6: • Removing human cases from the program response guidelines o More than one (at least two)human cases per week must be present to meet the threshold for an adulticide application in a given week Combined, these actions mean that -staff will break the community into four (4) zones — staff proposes along College Avenue and Drake Road in 2014 — but also apply all of the program response guideline thresholds to each zone. In other words — each zone would need to have two 277 June 3. 2014 human cases in a single week and a vector index above 0.75 before it would reach the outbreak threshold and support an adulticide application recommendation. This means the likelihood of achieving a threshold necessary for emergency intervention, or adulticiding, is highly unlikely. The vector index could go well above the 0.75 threshold, as happened in 2013, and yet there could be no emergency application to break the disease transmission cycle unless human cases has been reported. Staff recommends using the vector index as the primary threshold for adulticide application because human cases are a lagging indicator, while the vector index uses real-time information gathered through mosquito monitoring and testing to estimate the average number of infected mosquitoes. The vector index provides an estimate of the risk of a WNV outbreak and allows the City to take action before an outbreak (i.e. broad human cases) occurs. The changes recommended by staff on May 6 were intertwined and when broken apart cannot be reconciled into an approach that staff supports. Staff apologizes for not clarifying the irreconcilability in this context before/during the meeting. In order to more effectively use the data provided through the City's extensive trapping network, staff strongly encourages the removal of human cases from the thresholds. Staff believes this approach — utilizing the vector index in four zones and including the opt -out provisions for health -related and business impacts — provides more effective West Nile virus control in smaller sections of town. If Council is inclined to adopt the staff recommendation to eliminate the human case threshold, additional direction should be provided to the City Manager regarding amending the program response guidelines accordingly. Advisory Panel The 2008 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 Lorimer Count)' Health Department's recommendations for an adulticide application. In recent years the -Technical Advisory Committee has met during the offseason to review the City's response to WNV and recommend program improvements. The Advisory Panelisprovided weekly data gathered,from the City's trapping network. Panel members have discussed that there is little room to interpret the data provided other than to either concur with a recommendation to spray or to reject the recommendation. ' West Nile Virus Management Policies Option A includes continuing the Advisory Panel but expanding the membership from three (3) to five (5) members. The Advisory Panel would continue to review data on a weekly basis in season and provide its analysis of the Lorimer Health Director's recommendations to spray. Option B would eliminate the Advisory Panel and instead use a checklist of thresholds to consider whether the City should adulticide. Staff recommends Council adopt Option B eliminating the Advisory Panel. Modifications to the program response guidelines have removed a great deal of discretion from the Advisory Panel, some members who participated in the TAC review of the 2013 WNV season .noted that their review of a spray recommendation had been reduced by improvements to the operational thresholds. 278 Jute 3, 2014 The primary functions of the Advisory Panel under the 2008 WNV Management Policy were additional evaluation of seasonal data and communication to Boards. In the 2013 season review, the TAC recommended that staff promote transparency and communication by publishing the weekly in -season WNV data on the City website along with recommendations to spray received from the Lorimer County Health Director and a checklist of the program response thresholds. These steps promote transparency and fill the communication role that would be vacated by the elimination of the Advisory Panel. The WNV. TAC will continue to meet each off-season to review the City's operations and propose enhancements. The TAC provides recommendations to the City Manager. Both policy options include language creating a more formal TAC membership by incorporating a specific number of members, member affiliation, and role for the committee. While not replacing the Advisory Panel or its in -season role, the TAC serves an important role in advising best practice -driven program improvements. Staff proposes that the TAC membership reflect several constituencies, including, but not limited to, community members, health care, and science. FINANCIAL / ECONOMIC IMPACTS Additional staffing is needed to implement the business opt -out program educational outreach. Colorado Mosquito Control, the City's contractor, will handle this addition to the WNV Management Program and staff will address budget modification.. ENVIRONMENTAL IMPACTS Applying a pesticide in some or all of Fort Collins represents an environmental impact. These WNV management program enhancements are anticipated to reduce the need for and extent of an adulticide application, in addition to a larvicide application, in the City. The larval control product used is deemed to have a low environmental impact, but it does reduce the abundance of mosquito larvae which has a cascading impact on species which feed upon larvae and adult mosquitoes. The aduticide product used may have broader impacts on agricultural produce, honey bees and pesticide -sensitive populations. Staff works to minimize the impact of spraying through the steps of the IPM approach. BOARD / COMMISSION RECOMMENDATION Staff has presented the TAC's 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 City's public outreach process regarding West Nile reduction and discussed the options available to Council regarding the policy language. Additionally, he discussed staff recommendations regarding program response guidelines, a 4-zone approach, and opt -out provisions. Mary Lipscomb Lyons, 1327 Catalpa, urged Council to not delay spraying until human West Nile cases are presented. 279 June 3, 2014 Kevin Cross, 300 Peterson, opposed the use of permethrin as it is a known toxin and carcinogen. Daisy Williams, Mill Creek Court, stated she has an organic farm and opposed the use of permethrin for adulticide spraying. She supported the use,of human cases as part of the program response guidelines. Mark Richards, Larimer County Board of Health President, supported the staff recommendation to remove human cases as a threshold for control measures. Bruce Cooper, Larimer County Health District Medical Director, supported the staff recommendation to remove human cases as a threshold for control measures. Meghan Williams, Spring Kite Farm, supported increasing the number of indicators necessary before adulticide spraying occurs. Chet Moore, Mansfield Drive, stated the human case indicator is not a helpful tool. Kim Meyer Lee, Latimer County Department of Health and Environment, suggested the use of mosquito trap data and encouraged Council to remove human cases as a criterion for spraying. Nancy York, 130 South Whitcomb, stated permethrin is a health hazard and opposed relying solely on physician data. Dan Sapiema, Health District of Northern Larimer County, discussed the significant health risk posed by West Nile and encouraged Council to remove human cases as a criterion for spraying. Keri March King, 3206 Sweeney Street, opposed adulticide spraying and encouraged Council to allow individuals to opt out of spraying. Dana Kunze, Fort Collins resident, suggested Council consider applying the vector index data at the zone level while retaining citywide human cases as a threshold for spraying in any particular zone. Simon Schaad, 624 Yarrow Circle, opposed adulticide spraying but urged Council to support Option A of its choices. Scott Sorsederber, Fort Collins resident, suggested the adulticide chemicals have not been applied as directed. Trina Corey, 606 Holyoke Court, stated she had Lyme disease and expressed concern regarding the impacts of adulticide spraying. Eric Levine, Fort Collins resident, supported the eradication of larval mosquitos. Donna Dundon, 3101 Worthington Avenue, stated she had West Nile last year following spraying in her neighborhood. She questioned the long-term effects of adulticide spraying. June 3, 2014 Mayor Pro Tem Horak asked the Larimer County Board of Health official why the County is not dealing with this issue as the City has no function or department for health. Mr. Richards replied he has no personal experience with the history of the issue. Mayor Pro Tem Horak asked if Mr. Richards could make a recommendation to the Board of County Commissioners. Mr. Richards replied in the affirmative; however, he noted his group does not have rule -making authority. Mayor Pro Tem Horak asked if the Board of Health makes recommendations to the Commissioners about larviciding outside city limits. Mr. Richards replied in the affirmative. Mayor Pro Tem Horak asked who receives recommendations from Dr. LeBailly. Ms. Meyer Lee replied the recommendations are conveyed to County officials, as well as to the City. Mayor Pro Tem Horak questioned why the City has become responsible for carrying out a County function. Mr. Richards replied the City and County could negotiate to return that responsibility to the County; however, the City is currently responsible at this time. Councilmember Cunniff asked about spraying by homeowner associations. Mike Calhoon, Parks Supervisor, replied the HOAs are included in the City's distribution list for adulticide notification, and, according to the Department of Agriculture, it is the applicator's responsibility to not overspray, or have a double application. , Councilmember Conniff asked if it would be possible to codify a requirement that HOAs notify the City when they plan adulticide operations. Calhoon replied in the affirmative. Councilmember Conniff asked what the City will implement in terms of public notification and spray tracking. Calhoon replied a new platform has been developed for spray tracking in order to more effectively and efficiently provide information to residents. The Council and Calhoon had a discussion regarding staffs interpretation of "long-term financial impact." Calhoon noted that definition would apply to businesses whose business will be affected longer than just the day or week of the application. Calhoon discussed the rules and laws by which applicators are to abide and stated the product used by the City for adulticiding is the most benign one available. Mayor Pro Tem Horak asked about the boundary extensions for spraying. Calhoon replied the boundary has been extended to the north and, east sides of town, primarily in agricultural buffer areas. Mayor Pro Tem Horak asked if the County participates in a monetary fashion with spraying. Calhoon replied in the negative. Mayor Pro Tem Horak requested additional information regarding the educational campaign for citizens. Calhoon replied the program has already begun with utility bill inserts, door hangers, 281 June 3, 2014 banners around town, magazine and newspaper articles, program manual, and videos. Mayor Pro Tern Horak requested recommendations for gardens that get sprayed. Calhoon replied gardens can be covered prior to spraying, or, if sprayed, produce should be washed with soap and water prior to consumption. Councilmember Campana thanked the individuals who spoke and stated there is an opportunity for discussion with the County Commissioners regarding the topic; however, he stated he would like to continue to have local control over spraying within city limits. He commended Calhoon on his work with the program and thanked the Technical Advisory Committee for its work. Councilmember Overbeck expressed concern the educational campaign has not addressed standing water and other mosquito breeding attractors. Calhoon replied a public service announcement will go out tomorrow. Mayor Pro Tern Horak made a motion, seconded by Councilmember Cunniff, to adopt Resolution 2014-049, with Option B, amending Option B to use the language from Option A which discusses human case consideration. Mayor Pro Tem Horak stated the vector index is not a perfect indicator; thus the need for the human case indicator, which is the only other indicator available to aid in balancing the risk. City Attorney Roy read recommended language to accommodate Mayor Pro Tern Horak's amendment. Councilmember Cunniff requested an amendment to the motion to add language to the Resolution directing the City Manager to develop policies and procedures to eliminate City application of adulticide in areas such as HOAs where private adulticide application has previously occurred during mosquito season.. Mayor Pro Tern Horak accepted the amendment. Councilmember Campana noted there are no perfect indicators; however, the vector index calculates infected mosquitos and common sense states that would be an indicator of the potential for increased human cases. He stated he would like the human cases to not be required as the risk from pesticides is less than that from West Nile. Mayor Weitkunat discussed the fact the human cases are lagging indicators and asked Calhoon if he recommends human cases be a required indicator. Calhoon replied human cases have been used in the past but agreed it is a lagging indicator and stated staff is recommending the human cases indicator be removed. Councilmember Campana asked -if there are other indicators available other than the vector index and human cases. Calhoon replied Dr. Moore has been working on a degree day indicator; however, the vector index is currently the best indicator and is recommended by the CDC. Mayor Pro Tern Horak stated he would be amenable to make the number of human cases one or more rather than more than one. 282 June 3, 2014 Councilmember Cunniff noted spraying does not actually cure the West Nile epidemic. Mayor Weitkunat stated more than one case is not necessarily an indicator. Mayor Pro Tern Horak amended his motion to replace "more than one" with "one or more" human cases. He asked if this policy could lead to spraying earlier in the year. Calhoon replied he would anticipate spraying to be earlier. City Attorney Roy clarified the amendment made by Mayor Pro Tern Horak has not yet been seconded; therefore, more than one human case are still currently required. The vote on the motion was as follows: Yeas: Overbeck, Poppaw, Cunniff and Horak. Nays: Campana, Weitkunat and Troxell. THE MOTION CARRIED. (Secretary's note: The Council took a brief recess at this point in the meeting.) Resolution 2014-033 Superseding Resolution 2013-049 and Authorizing the Execution of a Revised First Amendment to the Intergovernmental Agreement Establishing the Boxelder Basin Regional Stormwater Authority, Adopted The following is the staff memorandum for this item. "EXECUTIVE SUMMARY The purpose of this item is to approve a revised First Amendment to the .BoxelderBasin Regional Stormwater Authority (BBRSA) in place of the First Amendment that was authorized by the adoption of Resolution 2014-049. The Revised First Amendment: Authorizes the BBRSA to determine and make minor revisions to properties within the Service Area of the BBRSA by designating areas as "non -tributary areas", and to grant fee credits to other areas within the Service Area; Authorizes the BBRSA to accept loans from the Colorado Water Conservation Board (CWCB) to fund the design and construction of the remaining regional stormwater projects; and, Establishes a sunset provision that terminates collection of sionnwater fees and charges either twenty years after the effective date of this Amendment, provided there is agreement regarding the operation and maintenance responsibilities for the projects, or upon completion of all regional stormwater projects, payment of all debt incurred by the BBRSA, agreement as to payment of any BBRSA obligations to Members and disbursement of any remaining revenues and agreement among the Members as to any continuing obligation for operation and maintenance of the projects. ' 283 June 3, 2014 STAFF RECOMMENDATION Staff recommends adoption of the Resolution. BACKGROUND / DISCUSSION The Boxelder Creek Watershed encompasses over 265 square miles and extends from just north of the Wyoming border to the Poudre River on the south. Several local governments have worked together since 2005 to identify ways to mitigate flood hazards within the area that is tributary to Boxelder Creek from County Road 70 north of Wellington south to where Boxelder Creek floodwaters join the Cache La Poudre River. 1'he Boxelder Creek 100-Year floodplain impacts approximately 4.900 acres of land within the regional area. Due to the numerous split flows and diversions that occur, the potential for overtopping frequemly used roads and the probability of the existing conveyance system to become blocked, there is the potential for loss of life and/or bodily injury during the 100-Year Flood. In August 2008, the City of Fort Collins, Larimer County and Town of Wellington entered into an intergovernmental agreement to establish the Boxelder Basin Regional Stormwater Authority (BBRSA) and fund the design and construction of regional stormwater improvements. In 2012, the Town of Timnath entered into an intergovernmental agreement with the BBRSA to financially participate in the design and construction of regional stormwater improvements. The originally proposed First Amendment to the BBRSA Intergovernmental agreement was approved by both the City of Fort Collins and the Town of Wellington in May 2013. Larimer County, however, expressed concerns regarding the need to identify and fund specific improvements to Comity Road 52 and to better define the sunset language provision included in the amendment. A staff update on the BBRSA and associated projects on Boxelder Creek was presented at the January 28, 2014 City Council Work Session. In 2014, all parties executed the County Road 52 Improvements IGA to address Larimer County's concerns. Accordingly, the BBRSA Master Plan has been updated and revised to consist of the following regional stormwater projects: • Diversion of Coal Creek to Clark Reservoir (Clark); • East Side Detention Facility (ESDF); • County Road 52 Improvements (CR 52 Improvements); and • Larimer and Weld Canal Crossing Structure (LWCCS). Larimer County has proposed a revision to the First Amendment to the BBRSA Intergovernmental Agreement that specifies a twenty-year sunset provision on the collection of stormwater fees and charges pending agreement of the parties regarding the on -going operations and maintenance of the regional stormwater projects. FINANCIAL / ECONOMIC IMPACTS In light of the BBRSA Stormwater Master Plan revisions, an update of the estimated Benefit/Cost Ratio of the regional stormwater projects was completed to confirm the financial benefits. The table below uses information on damage losses from the 2006 Boxelder Creek ME June 3, 2014 Regional Stormwater Master Plan and compares the, losses with the current estimated construction costs for the remaining BBRSA projects (ESDF, LWCCS, and CR52 Improvements). Review of the table shows an updated Benefit/Cost Ratio of 3.95. In most instances, a B/C ratio of 1.5 or 2 is considered very good. Such a high BIC ratio is very unusual and demonstrates the dramatic benefits that construction of the BBRSA projects has with regard to the reduction in damages from a 100-Year flood event. Fort Collins Benefits There are significant financial benefits and reductions in flood damage to properties located with the City of Fort Collins and its GMA, as presented at both the January 28, 2014 Council Work Session and March 18, 2014 Regular Council Meeting. Highlights of the benefits include: Cooper Slough • The BBRSA regional stormwater projects will eliminate the westerly Boxelder Creek overflow that extends south along the east .ride of interstate Highway 25. • A savings of $11.3 Million in reduced stormwater infrastructure costs. • Removal of 130 acres of land from the 100-Year floodplain. • Reduces flooding damage to existing properties at the Mulberry Road / Interstate Highway 25 interchange. Boxelder Creek • The BBRSA regional stormwater projects will eliminate the westerly Boxelder Creek overflow that extends south along the east .ride of Interstate Highway 25. • There is a $6 million savings in stormwater infrastructure required for roads within the Fort Collins GMA. • There is a $2.1 million savings in stonnwater improvements at Boxelder Creek / Prospect Road. • Removal of 650 acres of land from the 100-year floodplain. 20 Year Stormwater Fee and Charge Sunset Provision The revised language in the First Amendment states that the BBRSA shall terminate collection of stormwater fees and charges twenty years after the effective date of the Amendment provided there is agreement among the Members with regard to any continued obligation of the Authority which extends beyond such termination for operation and maintenance responsibilities for the Coal Creek Flood Mitigation, ESDF, CR 52 Improvements, and LWCCS projects, or upon the occurrence of all of the following contingencies (a) through (e), whichever first occurs: (a) Completion of the East Side Detention Facility/Gray Lakes and Larimer/Weld County Canal Crossing Structure projects; (b) Payment in full of the loan from the CWCB and any other obligations of the Authority; (c) Agreement among the Members with regard to any continued obligation of the Authority which extends beyond the termination of collection of fees and charges by the Authority 285 June 3, 2014 including, but not limited to, operation and maintenance responsibilities for the Coal Creek Flood Mitigation, the East Side Detention Facility/Gray Lakes, and Larimer/Weld County Canal Crossing Structure projects.; (d) Agreement among the Members as to payment of any Authority obligation to the Members for matching funds of the Members for the FEMA Pre -Disaster Mitigation Grant in the approximate amount of one million dollars ($1,000,000); and, (e) Agreement among the Membersas to the disbursement of any revenues of the Authority which remains after the Authority has finalized all of the administrative and organizational requirements necessary to terminate collection of fees and charges by the Authority including, but not limited to, any required budgets, audits, and filings with any state or federal authority. The -current financial scenarios indicate that the CWCB loans are anticipated to be paid off within 15 years. This is well within the twenty year time period included in the revised First Amendment language. It should also be noted that the twenty year time frame is also contingent on the requirement that Fort Collins, Larimer County and Wellington have reached agreement with regard to the long-term operations and maintenance of the regional stormwater projects. ENVIRONMENTAL IMPACTS The original Boxelder Creek Regional Stormwater Master Plan (2006) did not include any environmental studies or EIS analysis. In accordance with the language in the original BBRSA Intergovernmental Agreement -- the location, size and impacts of any BBRSA or Fort Collins/Timnath stormwater improvements shall be minimized to the extent reasonably possible and construction activities and improvements shall he sensitive to the natural features of the affected property. None of the BBRSA or Fort Collins/Timnath stormwater improvements are located within a designated Fort Collins Natural Area. Any area impacted by construction activities shall be restored to pre -construction natural conditions to the extent reasonably possible, using native vegetation. Environmental Impacts of Original Edson (East Side) Site The originally -proposed -location for the Edson (East Side) detention facility was at the confluence of Boxelder and Indian Creeks. The original concept was to construct a dam just below the confluence. This location would have impacted two creeks instead of one. In addition, due to its siting much higher in the Boxelder Watershed, over detention of the 100-year runoff would have been required in order to achieve the same downstream peak discharge reductions. Upon detailed analysis, it was detennined that the physical characteristics and topography of the site would not provide the required detention volume storage to accomplish the goal and would result in the condemnation of existing homes. This allows the more frequent and environmentally beneficial smaller stone events to pass through ESDF without any attenuation at all. The original location of Edson would not have allowed this type of design. Environmental Impacts of Current East Side Detention Facility (ESDF) In order to meet United States Army Corps of Engineers' (USACE) requirements, ESDF was June 3, 2014 designed to minimize wetland impacts. The wetland area was surveyed by Alpine Ecological services and found to be 13 acres. Of drat 13 acres, the current design impacts less than 0.35 acres and that occurs where the footprint of the dam and outlet structure cross Boxelder Creek. There is no grading proposed within Boxelder Creek other than where the dam crosses the creek. All impacted wetlands will be mitigated at a 1:1 ratio. The project will obtain an Individual 404 Permit from the USACE. RC Consultants has completed a Historic and Cultural Survey of the entire project site for the State Historic Preservation Office (SHPO). The SHPO report will be submitted along with the 404 permit application. A key benefit of the current ESDF design is that the dam will not begin to detain flood flows until a storm event occurs with a greater magnitude than a 50-year flood. The ESDF facility has been purposefully designed to not detain flows during the more frequent storm events such as the 2- year, 5-year, 10-year and 25-year because these storm events provide beneficial flows to Boxelder Creek. Only in very infrequent flood events will Boxelder Creek see any change in flows. Even after the construction of the ESDF dam, the 100-year flows in Boxelder Creek will be very close to the current 100-year flows in Boxelder Creek. The flows being eliminated correlate to the current westerly flow path that spills out of Boxelder Creek and heads towards 1- 25 where there is no channel, creek or habitat. All smaller seasonal storms and flood events up to the 50-year storm will pass as they have historically. The floodplain reduction is in the two overflow paths (1-25 and Timnath) which are not actual waterways. Accordingly, the construction of the ESDF facility, will.not impact the existing beneficial functions of the floodplains along Boxelder Creek. Another important design feature of the ESDF facility is the limited time the flood waters will be detained. Because of the short and intense nature of the storm events along the Front Range, both the City. of Fort Collins and Lorimer County have adopted a 2-hour rainfall hyetograph with very high intensities. Our current hydraulic model of the dam shows that the total time for ESDF to drain following a 100-year flood to be 20 lours. This is important because there are no depletions to the Poudre River System. Alpine Ecological Services completed cm Endangered Species (ESA) survey of the project area in August of 2013. Based on information from the US Fish and Wildlife Service (USFWS) website (USFWS 2013a) -- 16 federally -listed species may be affected by projects in Larinler County. These include I that may be present in the county and five that could be affected by water depletions to the Poudre River System. Of the 16 species, the project area only contains potential habitat for three: Preble's meadow jumping mouse (Preble's), Colorado butterfly plant (CBP), and Ute ladies' -tresses (ULT). A Borough survey of the proposed project sites and research of previous studies within the surrounding areas did not find evidence of habitat for the Preble's or for either plant. The U.S. Fish and Wildlife service concurred with Andy's findings and provided an ESA clearance letter for the project. Environmental Impacts of Elimination of the Middle Boxelder Creek Improvements As a result of the relocation of the ESDF downstream to a site that can provide increased detention storage, the Middle Boxelder Creek improvements were eliminated, reducing potential adverse impacts on the section of Boxelder Creek from County Roads 48 to 54. 287 June 3, 2014 PUBLIC OUTREACH Information on the BBRSA and progress on its regional projects is presented monthly at the BBRSA Board of Directors meeting, which is held at 4:00 PM the fourth Wednesday of each month at the Leeper Center, 3800 Wilson Avenue, Wellington, Colorado. The Board Meeting agendas and minutes along with relevant studies, mapping and other information are available for review at the following BBRSA website hyperlink: http://www.boxelderauthorit zLorgl. In addition, the BBRSA maintains a mailing list of parties who have expressed interest in receiving information and regularly distributes Board Meeting agendas and materials. The BBRSA also publishes and distributes a quarterly newsletter which provides information and updates on the authority and its programs. Comprehensive updates on the BBRSA were presented at the recent public meetings listed below: • January 28, 2014 City Council Work Session • February 26, 2014 BBRSA Board of Directors Work Session • March 18, 2014 City Council Regular Meeting. " Ken Sampley, Stormwater and Floodplain Program Manager, briefly introduced the item. Eric Sutherland, 3520 Golden Currant, stated the Boxelder Stormwater Authority is the worst example of local government he has ever encountered and the project is not necessary. Councilmember Troxell made a motion, seconded by Councilmember Campana, to adopt Resolution 2014-033. Mayor Pro Tem stated this is an amendment requested by the County. Councilmember Cunniff questioned why the City is not using the context of this agreement in an omnibus agreement with the County with respect to some of the discussions held at last week's work session. Mayor Weitkunat noted this is an amendment to an ongoing agreement: The vote on the motion was as follows: Yeas: Troxell, Horak, Weitkunat and Campana. Nays: Overbeck, Poppaw and Cunniff. THE MOTION CARRIED. RM Jute 3, 2014 Ordinance No. 090, 2014, Appropriating Unanticipated Revenue in the Stormwater Fund to Design and Construct the Fort Collins I Timnath Boxelder Creek Flood Mitigation Projects, Adopted on First Reading The following is the staff memorandum for this item. "EXECUTIVE SUMMARY The purpose of this item is to appropriate funds in the amount of $3,750,000 to design and construct the Fort Collins/Timnath Boxelder Creek Improvements, as outlined in the Sixth Amendment to the Fort Collins — Timnath Intergovernmental Agreement (IGA), as adopted by City Council under Ordinance No. 047, 2014 on April 1, 2014. - BACKGROUND/DISCUSSION - In February 2009, Fort Collins and Timnath entered into 'an intergovernmental agreement (IGA) regarding Growth Management Areas (GMAs) for the two communities, associated issues authorizing the disposition of certain properties, and stornnnwater and floodplain issues associated with Boxelder Creek and the "Boxelder Creek Overflow Project. " There have been seven (7) amendments to the IGA. The Sixth Amendment to the IGA was adopted under Ordinance No. 047, 2014 at the April 1, 2014 Regular Council Meeting. The locations of the Fort Collins / Timnath Boxelder Creek Improvements and Boxelder Basins Regional Stonmwater Authority (BBRSA) Regional Stonmwater Improvements are shown onn Attachment 1. The Fort Collins /Timmah Boxelder Creek Improvements consist of: • Lake Canal Crossing of Boxelder Creek -- A siphon and associated appurtenances to transport flows in the Lake Canal beneath Boxelder 'Creek just west of Interstate Highway 25. • Boxelder•Creek Outfoll and Prospect Road Improvements -- A side spill weir (split flow channel) and flood conveyance channel on Boxelder Creek upstream of Prospect Road along with six 12' x 4' concrete box culverts beneath Prospect Road west of Interstate Highway 25, associated utility relocations (i.e. electric, water, wastewater, gas and telecommunications), roadway restoration, and a flood conveyance channel south of Prospect Road to the_Poudre River and associated appurtenances. • Boxelder Creek at Interstate Highway 25 (I-25) -- Drainageway and channel improvements and grading adjacent to and upstream (east) of 1-25 and the opening of two existing blocked culverts beneath 1-25. FINANCIAL / ECONOMIC IMPACTS The total cost of these projects is currently estimated to be $4,000,000. Fort Collins and Timnath have agreed to share equally in the costs to complete the projects. As outlined in June 3, 2014 the Sixth Amendment to the IGA, Fort Collins will be able to use the remaining fiords ($1,750,000) placed into, escrow as part of the original IGA towards its share of the project funding. Fort Collins will use existing appropriations from the Boxelder Authority project account in an amount up to $250,000 to fully fund fifty percent (50%) of the total cost of the Fort Collins/Timnath Projects. The parties agree that the escrowed funds, together with the additional Fort Collins fiords, are intended as a match to payments by Timnath, or the TDA on behalf of Timnath, in the amount of $2,000,000 to complete the projects. Timnath, or the TDA oil behalf of Timnath, will pay the $2,000,000 to Fort Collins who. will manage the design and construction of the projects. ENVIRONMENTAL IMPACTS None of the Fort Collins / Timnath Boxelder Creek Improvements are located within a designated Fort Collins Natural Area. The reach of Boxelder Creek from the Lake Canal Crossing upstream to just east of I-25 (approximately 300 lineal feet) will be reconstructed to accommodate the opening of the two existing blocked culverts beneath I-25. The existing Lake Canal flume which extends over Boxelder Creek and is subject to failure in a flood event will be removed. The new flood conveyance channel upstream of Prospect Road will be constructed at an elevation 2-3 feet above the Boxelder Creek bed and will have minimal impact on the existing creek section. This new flood conveyance channel will extend southwesterly through new box culverts under Prospect Road and will outfall into a branch of the Poudre River downstream. No construction is anticipated within the 100-Year Poudre floodplain. The location, size and impacts of the stormwater improvements have been minimized to the extent reasonably possible and all construction activities and improvements shall be sensitive to the natural features of due affected property. Any area impacted by construction activities shall be restored to pre - construction natural conditions to the extent reasonably possible, using native vegetation. All appropriate environmental permitting including the Endangered Species Act (ESA) Clearance and USACE 404 Permit will be obtained. Council approved the Stormwater Quality Master Plan Update and associated Stream Rehabilitation Program and project priorities presented by Fort Collins Utilities Stormwater staff in mid-2012. This included analysis and a report from Colorado State University entitled "Assessments and Rehabilitation Decision Makin Framework for the Streams of Fort Collins (CSU Study) to help guide and prioritize future stream management and rehabilitation within the City. .The Boxelder Creek / Cooper Slough Water Quality Master Plan Selected Plan is Attachment 2 to this memorandum. The reach of Boxelder Creek from the Lake Canal Crossing downstream to Prospect Road (identified. as Reach 3-1 in the Boxelder Creek/Cooper Slough Master Plan) was identified for future stream rehabilitation and restoration improvements with a preliminary estimated cost of $780,000. It is priority number 35 within the Stream Rehabilitation program (see Attachment 3). Annual funding in the amount of $650,000 for 2013 and 2014 was approved by Council as part of the 2013-14 BFO process for stream rehabilitation and regional Best Management Practices (BMPs) projects. These funds have been allocated to the highest priority stream rehabilitation 290 June 3, 2014 projects (Fossil Creek Reach 4-1 and Spring Creek Reach 1-5). Stream rehabilitation funding in the amount of $650,000 and $700,000 has been requested for 2015 and 2016, respectively, as part of the 2015-16 BFO process. Boxelder Creek Reach 3-1 would not typically be funded for 10-15 years given the current annual funding allocations. However, _ Stormwater staff is coordinating with the developer of the Interstate Land site located at the northwest corner of I- 25 and Prospect Road to potentially design and construct the proposed stream rehabilitation projects in this reach over the next several years. PUBLIC OUTREACH Information on the Boxelder Bashi Regional Stonnwater Authority and progress on its regional projects is presented monthly at the BBRSA Board of Directors meeting which is held at 4:00 PM the fourth Wednesday of each month at the Leeper Center, 3800 Wilson Avenue, Wellington, Colorado. The Board Meeting agendas and minutes along with relevant studies; mapping and other information are available for review at the following BBRSA website hyperlink: http://www.boxelcierauthority.org/. In addition, the BBRSA maintains a nailing list of parties who have expressed interest in receiving information and regularly distributes Board Meeting agendas and materials. The BBRSA also publishes and distributes a quarterly newsletter which provides information and updates on the authority and its programs. Comprehensive updates on the BBRSA were presented at the recent public meetings listed below: • January28, 2014 City Council Work Session • February 26, 2014 BBRSA Board of Directors Work Session • March 18, 2014 Regular City Council Meeting • April 1, 2014 Regular City Council Meeting. " Ken'Sampley, Stormwater and Floodplain Program Manager, stated this item appropriates funds for the flood mitigation projects. Eric Sutherland, 3520 Golden Currant, stated Timnath is not collecting stormwater fees or other fees as Timnath's entire contribution is coming from the Timnath Development Authority which is using tax increment financing. Councilmember Cunniff asked if some of these areas are near City Natural Areas. Sampley replied this project does include a portion of Cooper Slough. Councilmember Overbeck asked about the size of the Boxelder area. Sampley replied it goes to the Wyoming border. Councilmember Overbeck asked if an increase in oil and gas activity is a possibility if the floodplain is reduced. Sampley replied he would need to defer that question. 291 June 3, 2014 Councilmember Troxell made a motion, seconded by Councilmember Campana, to adopt Ordinance No. 090, 2014, on First Reading. Yeas: Horak, Weitkunat, Campana and Troxell. Nays: Overbeck, Poppaw and Cunniff. THE MOTION CARRIED. Consideration of the Appeal of the Planning and Zoning Board Hearing Decision to Approve the Bella Vira, Final Plan, Extension of Vested Rights, Planning and Zoning Board Decision Upheld The following is the staff memorandum for this item. "EXECUTIVE SUMMARY The purpose of this item is to consider the appeal of the Planning and Zoning Board Hearing Decision to Approve the Bella Vira, Final Plan, Extension of Vested Rights requested by Richmond American Homes. On April 24, 2014 an appeal was filed concerning the Planning and Zoning Board Hearing decision regarding a request for extension of vested rights to the Bella Vira, Final Plan, -located at the southwest corner of South Overland Trail and West Elizabeth Street. An amended appeal was filed on May 14, 2014. The Amended Appeal asserts that the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the Land use Code, and failed to conduct a fair hearing. BACKGROUND I DISCUSSION The Bella Vira, Final Plan, Extension of Vested Rights is the subject of this appeal. The original Bella Vira, Final Plan was approved in 2008. The Final Plan was approved for 60 single family detached dwellings,'and 25 multi family dwelling units on 34.7 acres. , On April 10, 2014 the Planning and Zoning Board issued a decision to approve the request by Richmond American Homes for extension of vested rights for the Bella Vira, Final Plan for a one year extension to April 29, 2015. AMENDED APPEAL SUMMARY The Amended Appeal asserts that the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the City Code, the Land Use Code (LUC) and Charter including LUC Sections 2.2.11 (D) (3) (4), LUC 3.6.1, LUC 3.6.2, and Lorimer County Urban Area Street Standards, Chapters 1, 7, 16, 17, and Appendix H. In addition, the Planning and Zoning Board failed to conduct a fair hearing, in that the board considered evidence relative to its findings which was substantiallyfadse orgrossh, misleading. 292 June 3, 2014 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. The Appellant states: "Vested rights for the Bella Vira Fined Development Plan did lapse on or prior to January 3rd, 2013. " The verbatim transcript from the Hearing of the Planning and Zoning Board (page 20) contains: BOARDMEMBER HART. "1 think that in terms of process, you know, there may have been some glitches in the process, but the bottom line to me is that they have followed the process based upon their best knowledge. " BOARDMEMBER HEINZ: "But, I think that what we have before us is a basic matter of extension... " VICE CHAIR KIRKPATRICK: "I also think that the request for extension absolutely falls within the requirements in which we have to make... to grant such a request. " BOARDMEMBER HOBBS: "I would like to make a motion, but'1 would like to get... oh, your information is back up there, it wasn't in our ... so, 1 can read it off there. So I would move that the Board approve the Bella Vira Final Plan Extension of Vested Rights, MIS 140002, for a one year term of vested rights to April 29, 2015, provided that the City Council determines that the extension of the plan granted by the Planning and Zoning Board on May 16, 2013 is valid and binding upon the City. " More information can be found in the record on: • The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 4 - 10) • The Staff Report (page 1, 2, and 7) The Appellant states: "The Bella Vira... FinalDevelopment Plandidnot comply with the Fort Collins ]and Use Code priorto knpse or prior to the extension underappeal iahatan added component of the uversecti on 293 June 3, 2014 at EILabeth and OverlandTrail does notineetsafety requirements o existing sicutdards of ctreel bnprovennents perdue LUC oras exists iuhearea. " The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 20 and 21) contains: BOARDMEMBER HART: "Well, I've looked at this. I think it's really good that Mr. Sutherland, some of the neighbors, have raised the issues, but based upon what we've heard from the applicant and staff, it appears that the transportation system is functioning adequately and will fiotction adequately mail the time comes when improvements have to be undertaken. But none of those are relevant to this particular project. They just are relevant to the natural growth... growth associated with traffic moving back and forth in that area. " BOARDMEMBER HOBBS: "...it is our responsibility to look at this, make sure that there aren't ... I think what you said were section three, sort of, changes than may have happened since the original approval of this. I don't believe that we have heard or seen any of those that justify either revisiting this more or refusing it." BOARDMEMBER HEINZ: "It seems like with the traffic and the streets, that it's just based on standards, and you know, it's not just an arbitrary situation. " VICE CHAIR KIRKPATRICK: "I think that the plan complies with all of the relevant and applicable standards in our Land Use Code, and 1 also think that the request for extension absolutely falls within the requirements in which we have to make... to grant such a request. 1 consider myself a bike and pedestrian advocate and I think that Fort Collins has really rigorous standards compared to most places. And I think than we are very scientific and prescriptive in the way in which we handle our transportation system, and I think that we are doing as we are supposed to. " More information can be found in the record on: • The Staff Report (page 6), • The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 5- 15, 16) The Appellant states: "TheBella Vira... FinalDevelopaient Plandidnotconnpl v with the Fort Collins Land Use Code prior to lapse bi than pedestrian access and facilities donotnieetapplicablesiandards. " 294 Jute 3, 2014 See response above. More information can be found in the record on: • The Staff Report (page 6) • The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 5- 15, 16) • The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 20 and 21) 2. The Appellant asserts -that the Planning and Zoning Board failed to conduct a fair hearing in that: The board... considered evidence relative to its findings which was substantially false or grossly misleading. The Appellant states: "Applicant's Attorney misstated dte facts pertaining to the limited term of vested rights." See response above on vested rights assertion. More information can be found in the record on: The verbatim transcript from the, Hearing of the Planning and Zoning Board (pages 7, 8, and 20) The Appellant states: " Applicant'sAttorney ignored the inability of the P d /_ Board to extend vested rights in 2013due todeficiencpofconditionsneces.card forevtension -i.e. no due diligence and no hardship unique to property. " See response above on vested rights assertion. More information can be found in the record on: The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 7, 8, and 20) The Appellant states: "City Staff made false representations regarding the conformance of public in. i-astructmr with applicable standards. " See response above on response to assertion that the Final Plan did not comply with the Land Use Code. WR June 3, 2014 More information can be found in the record on: • The Staff Report (page 6) • The verbatim transcript from the Hearing of the Planning and Zoning Board (pages 5-15, 16, 20, and 21). " City Attorney Roy briefly reviewed the appeals process. Eric Sutherland, 3520 Golden Currant, asked if truthful and accurate statements can be expected from staff and if a letter can be written by any party who finds tonight's decision unsatisfactory. City Manager Atteberry replied factual information will be presented; however, Mr. Sutherland may not agree. Cameron Gloss, Planning Manager, discussed the appeal allegations and staff responses thereto. APPELLANT PRESENTATION Mr. Sutherland discussed his assertion that the intersection of Overland Trail and Elizabeth is unsafe and deficiencies exist in the development review process for this project. He presented slides to illustrate his argument regarding the intersection. Charles Cuypers, Attorney for Bella Vira Townhomes, objected to this evidence as being new. Mr. Sutherland replied City staff were disingenuous at the previous hearing and suggested this information provides evidence as to why a right-hand turn lane is necessary at the intersection. Mayor Weitkunat stated she does not see the relevance of the presentation. City Attorney Roy stated, if this evidence is offered in support of an allegation that information to which this pertains that was received by the Planning and Zoning Board was substantially false or grossly misleading, then it is admissible as new evidence for that purpose. Mayor Weitkunat agreed to allow the presentation. Mr. Sutherland discussed intersections with right-hand turn lanes throughout the city and argued one is necessary at the Overland Trail and Elizabeth intersection. Additionally, he discussed other safety issues and requests for the intersection. OPPONENT PRESENTATION Jake Schroeder, Richmond American Homes, Inc., stated Council needs to determine whether or not the Planning and Zoning Board exceeded its authority in extending the vested rights for the Bella Vira project and encouraged Council to deny the appeal. He provided a history of Richmond American Homes' ownership of the property and expenditures related to the project. He discussed the need for the vested rights extension and detailed his arguments in opposition to the appeal allegations. Additionally, he stated the Overland Trail and Elizabeth intersection and the project comply with all Land Use Code standards. 296 June 3, 2014 Mr. Cuypers discussed the signing date of the plat for the final use plan and stated that was the date the vested rights began. Additionally, he stated Mr. Sutherland disagrees with staff regarding the plan and intersection and requested a denial of the appeal. APPELLANT REBUTTAL Mr. Sutherland stated he is taking these actions in defense of the community and to further concepts embodied in the City's planning documents. He argued the intersection as designed would not comport with Latimer County Urban Area Street Standards. He stated Council will need to condition whatever motion made, should it desire to have a safe and efficient intersection constructed. OPPONENT REBUTTAL Mr. Schroeder argued empirical evidence does not warrant or require the improvements suggested by Mr. Sutherland and stated the project complies with all Code requirements. Mayor Weitkunat requested information regarding the vested rights issue. Gloss replied the Planning and Zoning Board had much discussion regarding when vesting occurred and the reliance of the applicant on certain dates. He stated the initial date was when the plat was signed. A subsequent two week extension was granted incorrectly; however, good faith efforts were made to determine when expiration was approaching and 30 days advance notice was provided for all extension applications. He stated all extensions granted were in compliance with the Land Use Code. Mayor Weitkunat requested information regarding the development's compliance with the Land Use Code as it pertains to safe and signalized intersections and right turn lanes. Karen Combo, Planning, Development and Transportation Services Director, replied the traffic study does not show enough volume to warrant a right -turn lane and stated this road is not yet built to its ultimate width; therefore, the existing turn lanes will ultimately be through lanes. The intersection complies with the Code. Mayor Weitkunat asked if street design, intersections, and the necessity for right -turn lanes and intersections change as time progresses. Cumbo replied in the affirmative and noted the intersection will continue to be monitored. Mayor Pro Tem Horak made a motion, seconded by Councilmember Campana, that the Planning and Zoning Board did not fail to conduct a fair hearing in its consideration of the Bella Vira Final Plan Extension of Vested Rights. Yeas: Conniff, Horak, Weitkunat, Campana, Troxell, Overbeck and Poppaw. Nays: none. THE MOTION CARRIED. 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 Final Plan Extension of 297 June 3, 2014 Vested Rights because the Board properly interpreted and applied the provisions of the Land Use Code in approving the extension. Yeas: Horak, Weitkunat, Campana, Troxell, Overbeck, Poppaw and Cunniff. Nays: none. THE MOTION CARRIED. Extension of the Meeting Councilmember Cunniff made a motion, seconded by Councilmember Campana, to extend the meeting past 10:30 p.m. Yeas: Weitkunat, Campana, Troxell, Overbeck, Poppaw, Cunniff and Horak. Nays: none. THE MOTION CARRIED. Items Relating to Three Appeals of the Summit on College Project Development Plan Major Amendment Pertaining to a Parking Structure, Resolution Adopted The following is the staff memorandum for this item. "EXECUTIVE SUMMARY A. Resolution 2014-050 Making Findings of Fact and Conclusions Regarding the Appeal of the March 19, 2014, Administrative Hearing Officer Decision Regarding the Major Amendment to the Summit on College Project Development Plan. or B. Motion to Continue to Adjourned Meeting on June 24, 2014, to Consider Motion to Amend Decision. On April 29, 2014, three separate parties filed a Notice of Appeal concerning the Hearing Officer's March 19, 2014 Decision to Approve the Summit on College Parking Structure, Major Amendment. On May 20, 2014, City Council voted 6-0 on the motion that the Hearing Officer conducted a fair hearing in approving the Major Amendment; and voted 5-1 (Nays: Weitkunat; Troxell absent) that the Hearing Officer failed to properly interpret and apply relevant provisions of the Land Use Code, specifically Section 3.4.1(1)(2) and 3.5.1(J), and remanded the decision to the Hearing Officer. On May 24, 2014, the developer of the proposed parking structure, through his attorney, submitted a written request to the City that the City Council consider amending its decision on this appeal so as to modify the hearing officer's decision by approving the Major Amendment but adding two conditions. o June 3, 2014 BACKGROUND / DISCUSSION On March 5, 2014, an Administrative Hearing Officer considered the application for the Summit on College Parking Structure, Major Amendment. The Hearing Officer issued a decision to approve the Major Amendment with conditions. The application consisted of a request to construct a parking structure with 440 parking spaces. The proposed structure will be built over at existing surface parking lot, resulting in a net gain of 352 spaces. The parking structure consists of 4 levels, including parking on the roof, for an overall height of 3 mh stories. On April 29, 2014, three separate parties filed a Notice of Appeal; the grounds for appeal are as follows: ' Appellant Lester M. Kaplan and Appellant Jeffrey Leef.- • Failure to properly interpret and apply relevant provisions of the City Code, the Land Use Code and Charter. Failure to conduct a fair hearing in that: o The board, commission or other decision maker exceeded its authority or jurisdiction as contained in the Code or Charter; o The board, commission or other decision pinker considered evidence relevant to itsfindings which was substantially false or grossly misleading. Appellant Councibnenmber Cunniif' • Other. At the May 20, 2014 hearing on the matter, Council considered said appeal, reviewed the record of appeal, heard presentations from the Appellants and other parties -of -interest and, after discussion, remanded the Decision to the Hearing Officer. , Council voted 6-0 on the motion that the Hearing Officer conducted a./air hearing in approving the Major Amendment and voted 5-1 (Nays: Weitkunat; Troxell absent) that the Hearing Officer failed to properly interpret and apply relevant provisions of. the Land Use Code, specifically Section 3.4.](1)(2) and 3.5.1(J), and remanded the decision to the Hearing Officer. Council directed the Hearing Officer to further consider the impact of the Major Amendment on Spring Creek and for consideration of the reduction of the size of the parking structure building and the reduction of the number of parking spaces in the structure to a number closer to the minimum parking requirements as established by Ordinance No. 121, 2013, and presently contained in Section 3.2.2(K)(1)(a) for multi family development in the Transit -Oriented Development (TOD) Overlay Zone. On May 24, 2014, the developer of the proposed parking structure, through his attorney, submitted a written request to the City that the City Council consider amending its decision on this appeal so as to modify the hearing officer's decision by approving the Major Amendment but requiring that: 299 June 3, 2014 1. the height of the structure be reduced by one level to a height dimension of approximately 27' on the north, east, south and most of the west elevation; and 2. additional green screening be included on the south facade of the structure to further soften the view from Spring Creek. Therefore, two alternative actions are available to the Council. The first would be to finalize the appeal by adopting the proposed resolution. The second would be to continue the matter to June 24, 2014, for possible' consideration of a motion to amend the action taken by the Council at the conclusion of the hearing on May 20, 2014. If the Council chooses the latter course of action, all parties -in -interest to the appeal will be notified of the possibility that the outcome of the appeal may be changed and that they will be given an opportunity on June 24 to speak to the request that the applicant/developer has made. " Councilmember Troxell withdrew from the discussion of this item as he did not participate in the original hearing, although he reserved the right to participate in subsequenthearings after reviewing Council's actions at the hearings. City Attorney Roy reviewed Council's decision to remand the issue to the Hearing Officer for further consideration. He received a letter on May 23`d from Carolynne White, attorney for the developer, requesting that Council amend or rescind the decision it made at the conclusion of the appeal. Council has the option to adopt a Resolution making findings with regard to the decision made at the appeal hearing, as well as the option to adjourn this meeting, should Council wish to consider Ms. White's request to rescind or amend its decision. Additionally, Council has also received a letter from Rick Zier on behalf of three appellants stating his position with regard to Ms. White's request. Council can continue this meeting to a later date in order to consider the request following the notification of all parties -in -interest. Eric Sutherland, 3520 Golden Currant, expressed disappointment in City Attorney Roy's interpretation of the Code regarding the Resolution making findings. Jeff Jones, Capstone Development Partners Executive Vice President, stated Capstone can reduce the height of the garage by one level, reduce the number of parking spaces by 27%, or 91 spaces. He requested Council allow the process to go forward with the condition of a reduction in size rather than remand the decision back to the Hearing Officer. Kelly Ohlson, Fort Collins resident, stated Council should focus on better rather than bigger development. He requested Council adopt the finding of facts remanding the issue back to the Hearing Officer. Carolynne White, Land Use Counsel for the applicant, stated a remand to the Hearing Officer would require the Hearing Officer to reconsider two particular Code criteria relating to compatibility with Spring Creek, and a reduction in the size and number of spaces in the garage. She stated remanding the decision would not address the issues raised by the appellant as it was limited to those particular topics. She requested Council proceed with a condition on the size and number of spaces in the garage. 300 June 3, 2014 Steve Pfister, Fort Collins resident, stated it is appropriate for Council to consider this due to the negative impact of Summit residents parking in residential areas. Rick Zier, attorney for three appellants, stated he was not informed about this request by the applicant. He argued most of Mr. Jones' comments were substantive rather than procedural and stated Ms. White's letter contained new evidence. He requested Council adopt the findings Resolution. Councilmember Campana asked if this type of instance has ever previously occurred. City Attorney Roy replied in the negative. Councilmember Cunniff made a motion, seconded by Councilmember Overbeck, to adopt Resolution 2014-050. Councilmember Campana expressed appreciation for the effort being put forth by all parties, but stated he would support the motion in order to ensure adherence to the process. Mayor Weitkunat stated it would be difficult to.not address the findings of fact. The vote on the motion was as follows: Yeas: Campana, Overbeck, Poppaw, Cunniff, Horak and Weitkunat. Nays: none. THE MOTION CARRIED. Resolution 2014-045 Approving an Amended and Restated Intergovernmental Agreement Between the City of Fort Collins and the Poudre Valley Fire Protection District Establishing the Poudre Fire Authority, Postponed to July 15, 2014 City Manager Atteberry suggested postponement of Item No. 17, Resolution 2014-045 Approving an Amended and Restated Intergovernmental Agreement Between the City of Fort Collins and the Poudre Valley Fire Protection District Establishing'the Poudre Fire Authority to July 15, 2014. Mayor Pro Tern Horak made a motion, seconded by Councilmember Poppaw, to postpone'Item No. 17 to the July 15, 2014 regular meeting. Yeas: Poppaw, Cunniff, Horak, Weitkunat, Campana, Troxell and Overbeck. Nays: none. THE MOTION CARRIED. . Other Business Councilmember Troxell expressed support for CSU's EcoCar project and reported he will be attending the competition in Washington D.C. on Council's behalf. 301 June 3, 2014 Mayor Pro Tern Horak stated he was contacted by Steve Ackerman regarding a provision in the retail marijuana Ordinance stating all retail marijuana must be tested for THC and contaminants. Mr. Ackerman reported state testing is not yet available for contaminants. Mayor Pro Tem Horak requested Council consider taking action to request a suspension of that requirement until state testing is available. Councilmember Cunniff received Council support to consider instituting an overall wetland mitigation policy that would allow for higher amounts of wetland mitigation than one for one. Mayor Pro Tern Horak discussed the value component in regard to wetland mitigation. Mayor Pro Tern Horak made a motion, seconded by Councilmember Poppaw, to cancel the June 17, 2014 regular meeting due to the Colorado Municipal League meeting. Yeas: Troxell, Overbeck, Poppaw, Cunniff, Horak, Weitkunat and Campana. Nays: none. THE MOTION CARRIED: I Mayor Pro Tern Horak made a motion, seconded by Councilmember Cunniff, to adjourn to June 10, 2014 at 6:00 p.m. to consider going into Executive Session to discuss the mid -year performance reviews for Council's three direct employees. Yeas: Troxell, Overbeck, Poppaw, Cunniff, Horak, Weitkunat and Campana. Nays: none. THE MOTION CARRIED. The meeting adjourned at 11:06 p.m. ATTEST: City Clerk Adjournment OF FORTCO` ,-SEAL :N 302 V