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HomeMy WebLinkAboutMINUTES-12/04/2012-RegularDecember 4, 2012 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, December 4, 2012, 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: Horak, Manvel, Ohlson, Poppaw, Troxell -and Weikunat. Councilmembers Absent: Kottwitz Staff Members Present: Atteberry, Nelson, Roy.. Agenda Review City Manager Atteberry recommended postponement of Item No. 20, Public Hearing on Authorizing the Use of Eminent Domain by the Fort Collins Urban Renewal Authority to January 15, 2013. Additionally, he recommended the placement of an additional item under Other Business, First Reading of Ordinance No. 149, 2012, Amending the Land Use Code to Allow for the Processing of Applications for the Development of a Property Not Yet Under Full Ownership and Control of the Applicant or Developer. . Citizen Participation Eric Sutherland, 3520 Golden Currant, discussed the agreement between the Urban Renewal Authority and the Rocky Mountain Innosphere and opposed the assistance package provided to the Innosphere. Bill Mullaney, questioned the reasoning behind a Councilmember leaving the chambers when he and Stacy Lynne speak. Stacy Lynne, 305 West Magnolia, discussed her child custody case. John Anderson, Fort Collins resident, discussed the City's triple bottom line policies. John Fye, 1405 Briarwood Road, read a portion of the book, "The Law." Kevin Cross, 300 Peterson, Fort Collins Sustainability Group, encouraged increased cardboard recycling and supported a reduction in supermarket plastic bag use. 196 December 4, 2012 Nancy York, 130 South Whitcomb, discussed Boulder's "Do the Math" tour and carbon dioxide emissions and air pollution. Citizen Participation Follow-up Mayor Weitkunat reviewed Council meeting rules and parliamentary procedures. CONSENT CALENDAR 6. Consideration and Approval of the Minutes of the November 8 and November 13 2012 Adjourned Meetings and the November 20, 2012 Regular Meeting. 7. Second Reading of Ordinance No. 131, 2012, Authorizing the Transfer of Appropriations Between Program Years in the Community Development Block Grant Fund Ordinance No. 131, 2012, unanimously adopted on First Reading on November 20, 2012, reappropriates Community Development Block Grant (CDBG) funds that havebeen returned to the program for allocation in the fall 2012 Competitive Process. 8. Second Reading of Ordinance No. 132, 2012, Amending Section 2-237 of the City Code Relating to Membership of the Golf Board. The Golf Board currently consists of nine members appointed by the City Council. At the end of 2012, the terms of three members will expire. Two of those members are eligible for reappointment but did not reapply for reappointment. One member did apply for reappointment. This provides an opportunity for Council to consider changes to the size of the Board without negatively impacting any current members. This opportunity was presented to the Board by staff, and the Board voted to recommend that the Council reduce the size from nine to seven members. This Ordinance, unanimously adopted on First Reading on November 20, 2012, amends the City Code to reduce the size of the Board to seven members. 9. Second Reading of Ordinance No. 133, 2012, Amending Section 2-500 of the City Code Pertaining to a City Service Area. The City's Charter provides that service areas are provided by ordinance upon the recommendation of the City Manager. This Ordinance, unanimously adopted.on First Reading on November 20, 2012 amends the City Code, per the City Manager's recommendation, to create a Planning, Development, and Transportation Service Area, reflecting changes in roles and reporting relationships. 10. Second Reading of Ordinance No. 134, 2012, Amending Various Provisions of the Fort Collins Traffic Code. The Colorado General Assembly amended certain statutory provisions this legislative session relating to state traffic laws. This Ordinance, unanimously adopted on First Reading on November 20, 2012, ensures that the Fort Collins Traffic Code is consistent with state traffic laws. 197 December 4, 2012 I I . Items Relating to the Kechter Crossing Annexation. A. Second Reading of Ordinance No. 135, 2012, Annexing Property Known as the Kechter Crossing Annexation. B. Second Reading of Ordinance No. 136, 2012, Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Kechter Crossing Annexation. These Ordinances, unanimously adopted on First Reading on November 20,2012, annex and zone 28.9 acres located on the south side of Kechter Road, approximately 900 feet east of the intersection of South Timberline Road and Kechter Road. The proposed zoning for this annexation is Low Density Mixed -Use Neighborhood District (L-M-N). This annexation is not associated with the proposed Kechter Farm development, which is located southeast of the Kechter Crossing Annexation. . 12. Second Reading of Ordinance No. 137, 2012, Authorizing the Appropriation of 2013 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins -Loveland Municipal Airport. The 2013 annual operating budget for the Airport totals $693,100, and will be funded from Airport operating revenues, contributions from the Cities of Fort Collins and Loveland ($177,500 from each City), and interest earnings. This amount for each city is $92,500 greater than the previous year contributions of $85,000. For the City of Fort Collins the original $85,000 is funded from General Fund ongoing revenue, while the one-time increase of $92,500 will be funded from General Fund reserves. This Ordinance, unanimously adopted on First Reading on November 20, 2012, authorizes the appropriation of the City of Fort Collins portion of the Airport's annual operating budget in the amount of $346,550. This is 50% of the entire Airport annual operating budget of $693,100. This Ordinance also appropriates the City's 50% share of capital funds, totaling $1,100,000 for the Airport from federal and state grants; contributions from Fort Collins and Loveland; and the Airport General Fund. Most of the 2013 Airport capital funds, totaling $2,200,000, will be used to complete major Airport improvements, such as taxiway and apron rehabilitation and some funds are slated for utility master planning and design engineering to accommodate Airport business development. 13. First Reading of Ordinance No. 138, 2012, Appropriating Unanticipated Revenue in the Capital Projects Fund, Mason Corridor Project. The design of the MAX Bus Rapid Transit (BRT) Project included enhancements to the University Station at the request of Colorado State University (CSU), including decorative fencing, enhanced landscaped plaza, walkway lighting, spare conduit installation, and upsizing of the storm drainage system to accept CSU storm water runoff. These items are not eligible for reimbursement from the Federal Transit Administration (FTA) as part of the MAX BRT Project, and therefore will be funded by CSU. This ordinance appropriates the December 4, 2012 identified funds of $806,380 to construct the improvements concurrently with the BRT project. 14. First Reading of Ordinance No. 139, 2012, Adopting the 2013 Classified Employees' Pay Plan. The City of Fort Collins 2013 Pay Plan establishes a pay range structure for employee compensation. It is the framework that sets the minimum and maximum pay for City positions. The methodology used by the City is based on compensation best practices. The 2013 Pay Plan uses average actual salary data collected from public and private sector markets for benchmark positions to determine pay range midpoints within occupational groups. Ranges for non -benchmark jobs are established using a point factor system that is calibrated against the benchmark jobs. 15. First Reading of Ordinance No. 140, 2012, Amending the Fort Collins Stormwater Criteria Manual To Modify the Requirements for Emergency Work. A recent review of specific permit elements included in the City of Fort Collins' Stormwater Management Program identified an inconsistency with state interpretation of the requirements. This inconsistency is due to the Fort Collins Design Criteria Manual allowing emergency work to be exempted from the sediment and erosion control Best Management Practices (BMPs) requirements of the Manual. Except for emergency firefighting activities, the Municipal Separate Storm Sewer System (MS4) permit does not allow exemptions from the requirements. The proposed amendment will clarify that emergency work will be exempt only from advance submittal requirements, but not requirements for measures to prevent and control erosion. 16. First Reading of Ordinance No. 141, 2012, Amending Ordinance No 117, 2012 to Correct the List of Properties Contained in Such Ordinance That Are Subject to the Special Fee Imposed by Such Ordinance. This Ordinance amends OrdinanceNo. 117, 2012, adopted on Second Reading on November, 6, 2012, that established a special fee to be paid by the owners of property within close proximity to the reconstructed interchange at the intersection of Interstate 25 and State Highway 392. The spreadsheet mistakenly included a parcel of property in Zone A that is actually located within the Town of Windsor. This property should not have been shown as being subject to the Fort Collins Fee Ordinance. This Ordinance removes that parcel of property and slightly adjusts the area of the property owned by Terry and Mary Van Cleave to more accurately reflect the actual property size. 17. Resolution 2012-113 Adopting the 2012 Update to the Transportation Capital Improvement Plan, Appendix F of the City of Fort Collins-2011 Transportation Master Plan. The Transportation Capital Improvement Plan (CIP) is an inventory of all multi -modal transportation needs throughout the City and is an appendix to Transportation Master Plan (TMP). The focus of the 2012 update was to ensure that the CIP is accurate, up-to-date, and more user-friendly. The update also supports the action steps specified in the 2011 199 December 4, 2012 TMP/CIP. This is an administrative update to the CIP. Adoption of a revised version requires City Council approval because the CIP is an appendix to the Transportation Master Plan. 18. Resolution 2012-114 Adopting the 2012 Update to the Three -Mile Plan for the City of Fort Collins. This is the 2012 update to the Three -Mile Plan for the City of Fort Collins (Three -Mile Plan). The Three -Mile Plan is a State -required long-range "plan" that outlines the existing plans, policies, maps, and other documents that have been adopted by the City Council which generally describe the proposed location, character and extent of infrastructure and land uses. In addition, there are some plans and policies that are listed in the Three -Mile Plan that were adopted by Larimer County, Colorado State University or adjoining municipalities, as these are also located within the boundaries of the Three -Mile Plan. There are very few changes from the 201 1 update. 19. Resolution 2012-115 Adopting the Annual Revenue Allocation Formula to Define the City of Fort Collins' Contribution to the Poudre Fire Authority Budget for the Year 2013 for Operations and Maintenance. This Resolution establishes a Revenue Allocation Formula between the City of Fort Collins and the Poudre Fire Authority to contribute funding for operating and maintenance of the Poudre Fire Authority. 20. Postponement of the Public Hearing on Authorizing the Use of Eminent Domain by the Fort Collins Urban Renewal Authority to January 15, 2013. Notice was previously mailed to property owners in the Midtown Urban Renewal Area of a City Council hearing that had been planned for Tuesday, December 4th. The hearing was for consideration of the authorization in the Midtown Plan of the use of eminent domain by the Urban Renewal Authority. Because the Council will be conducting a hearing on January 15th regarding the Midtown Urban Renewal Plan and other related issues, the hearing that had been planned for December 4th will be postponed and will instead take place as part of the January l5thhearing. Notice of the January hearing will be published and mailed within the next couple of weeks. ***END CONSENT*** Ordinances on Second Reading were read by title by City Clerk Nelson. 7. Second Reading of Ordinance No. 131, 2012, Authorizing the Transfer of Appropriations Between Program Years in the Community Development Block Grant Fund. 8. Second Reading of Ordinance No. 132, 2012, Amending Section 2-237 of the City Code Relating to Membership of the Golf Board. 9. Second Reading of Ordinance No. 133, 2012, Amending Section 2-500 of the City Code Pertaining to a City Service Area. Kill] Decensber 4, 2012 10. Second Reading of Ordinance No. 134, 2012, Amending Various Provisions of the Fort Collins Traffic Code. 11. Items Relating to the Kechter Crossing Annexation. A. Second Reading of Ordinance No. 135, 2012, Annexing Property Known as the Kechter Crossing Annexation. B. Second Reading of Ordinance No. 136, 2012, Amending the Zoning Map of the City of Fort Collins and Classifying for Zoning Purposes the Property Included in the Kechter Crossing Annexation. 12. Second Reading of Ordinance No. 137, 2012; Authorizing the Appropriation of 2013 Fiscal Year Operating and Capital Improvement Funds for the Fort Collins -Loveland Municipal Airport. Ordinances on First Reading were read by title by City Clerk Nelson. 13. First Reading of Ordinance No. 138, 2012, Appropriating Unanticipated Revenue in the Capital Projects Fund, Mason Corridor Project. 14. First Reading of Ordinance No. 139, 2012, Adopting the 2013 Classified Employees' Pay Plan. 15. First Reading of Ordinance No. 140, 2012, Amending the Fort Collins Stormwater Criteria Manual To Modify the Requirements for Emergency Work. 16. First Reading of Ordinance No. 141, 2012, Amending Ordinance No. 117, 2012, to Correct. the List of Properties Contained in Such Ordinance That Are Subject to the Special Fee Imposed by Such Ordinance. Councilmember Manvel made a motion, seconded by Councilmember Poppaw; to adopt all items not withdrawn from the Consent Calendar. Yeas: Weitkunat, Manvel, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Councilmember Reports Councilmember Manvel reported several Councilmember attended a meeting regarding the homeless population in Fort Collins. He stated the idea of opening City buildings as night-time shelters has been discussed. Councilmember Poppaw noted there are barriers to entry at some emergency shelters. Mayor Weitkunat noted any shelter decisions will be formally placed on a Council agenda. 201 December 4, 2012 Councilmember Horak reported on the National League of Cities annual meeting and discussed his committee meeting relating to the regulation of hydraulic tracking and the protection of municipal water supplies. Mayor Pro Tent Ohlson reported on the annual legislative breakfast attended by Councilmembers. Items Relating to Medical Marijuana, Adopted on First Reading The following is staff s memorandum for this item. "EXECUTIVE SUMMARY A. First Reading of Ordinance No. 142, 2012, Repealing and Reenacting Chapter 15, Article AW of the City Code in Accordance with a Voter Approved Citizen -Initiated Ordinance Governing the Licensing, Number, Location and Operation of Medical Marijuana Businesses. B. First Reading of Ordinance No.143, 2012,AmendingtheLand Use Code in Accordance with a Voter Approved, Citizen -Initiated Ordinance Governing the Licensing, Number, Location and Operation of Medical Marijuana Businesses. These ordinances are being presented to the City Council as a result of the passage of a citizen - initiated measure, Measure 301, on November 6, 2012. The stated purpose of Measure 301 is to strictly regulate, control, and permit a limited number of state -authorized medical marijuana businesses within the City ofFort Collins. Ordinance No. 142, 2012, repeals the sections of Chapter 15 of the City Code that were enacted to ban such businesses and replaces those sections with Measure 301. Ordinance No. 143, 2012, addresses changes specific to the Land Use Code (LUC) that are also necessary to implement Measure 301. On February 21, 2012, the City Council adopted Ordinance No. 010, 2012, which deleted all references in the Land Use Code (LUC) to medical marijuana businesses, disallowing any medical marijuana businesses in any zone district within the city limits. In order to fully implement Measure 301, it is necessary to put the previous references to such businesses back into the Land Use Code, thereby once again allowing those businesses in certain zone districts. BACKGROUND /DISCUSSION On November 6, 2012, a citizen -initiated measure, Measure 301, was approved by the voters. It implements a licensing system for medical marijuana businesses, similar to the businesses that were in place prior to the ban in 2011. This measure took effect upon certification of the election results on November 19, 2012. With its passage and certification, it is necessary to amend the City Code and the LUC to once again allow medical marijuana businesses. Accordingly, staff recommends that the City Council repeal and reenact Chapter 15, Article XVI of the City Code, consistent with the wishes of the registered electors. This will remove the provisions prohibiting medical marijuana businesses and codify the new voter -approved provisions governing 202 December 4, 2012 the licensing, number, location and operation ofinedical marijuana businesses set forth in Measure 301. With regard to the Land Use Code amendments, staffis recommending that the previous regulations governing the zone districts in which medical marijuana businesses were allowed and not allowed should be reinstated in the same manner as they previously existed in the Code. Medical marijuana businesses that were allowed in the city prior to adoption of Ordinance No. 010, 2012 earlier this year consisted of "medical marijuana centers" (aka dispensaries), "medical marijuana -infused products manufacturers ", and "medical marijuana eptionalpremises cultivation operations ". Medical marijuana centers were previously allowed in the following zone districts: D, RDR, CC, CCN, CCR. CG, and CS. Medical marijuana -infused products manufacturers and medical marijuana optional premises cultivation operations were allowed in the following zone districts: RDR, CCN, CS, CL (non - Riverside areas only), anal. In addition to allowing medical marijuana businesses in the above -referenced zone districts, the previous regulations prohibited such uses from being conducted as a home occupation, and prohibited them from being allowed under the 'addition of permitted use' process. These prohibitions are recommended to be put back into the LUC, and are included in the LUC ordinance. The two ordinances presented bring consistency to both the Municipal Code and the Land Use Code as the City moves forward in enacting Measure 301. BOARD / COMMISSION RECOMMENDATION On December 20, 2012, between First and Second Reading, the Planning and Zoning Board will consider the proposed Land Use Code Ordinance and will forward a recommendation to City Council prior to Second Reading. PUBLIC OUTREACH Staff has not conducted formalpublic outreach since these changes are the result of an election. " Ginny Sawyer, Neighborhood Administrator, noted these Ordinances are related to the local measure 301, not to the State Amendment 64. Ordinance No. 142, 2012, enacts Measure 301 and removes the previous ban on medical marijuana businesses in the City Code. Ordinance No. 143, 2012, amends the Land Use Code and inserts the previous references to medical marijuana businesses. Eric Sutherland, 3520 Golden Currant, discussed education and treatment relating to medical marijuana and encouraged the enactment of a strict sales tax from which the revenues can be dedicated to education and treatment. Councilmember Troxell requested information regarding the term "strictly" regulated. City Attorney Roy replied the term "strictly" is a matter of perception and judgment. Separation and 203 December 4, 2012 security requirements may be considered strict; however, staff is not at liberty to amend the provisions of the Ordinance. Councilmember Troxell discussed the previous regulations and separation requirements and requested an interpretation of the new separation requirements. Sawyer stated Measure 301 is stricter regarding distance separation requirements for colleges and universities. The Ordinance is written with a bias towards previously licensed businesses and includes a cap to the number of businesses that are allowed in the community, based on the number of registered patients. If all of the previously existing businesses were to provide complete applications to open on the same parcels, all of those businesses would be allowed to re -open. Councilmember Troxell asked about the Ordinance wording regarding plant size. Sawyer replied the Ordinance does not include previous references to plant size and clones; however, it does include two ounces of sales per seven days. Councilmember Troxell noted medical marijuana is still against federal law and asked if that fact puts City staff and police officers at risk for breaking federal law. City Attorney Roy replied it does conceivably put staff at risk; however, clarification on that issue is being sought from the U.S. Attorney's office. Councilmember Troxell stated the most recent document from the U.S. Attorney's office was that the federal laws are set to be enforced. City Attorney Roy replied there was a reference to state officials, though none to local officials, in one letter from the U.S. Attorney's office to an Attorney General in another state. Councilmember Marvel made a motion, seconded by Councilmember Poppaw, to adopt Ordinance No. 142, 2012, on First Reading. Councilmember Manvel asked if the City's previous regulations are returning in essentially the same form as they existed before the ban. Sawyer replied in the affirmative and noted all state regulations will apply as well. Councilmember Troxell expressed concern about the health and safety of members of the community and stated he would not support the motion. Mayor Weitkunat noted this Ordinance repeals and reenacts Chapter 15 of the City Code and exists because it was voter -approved. Councilmember Horak noted there have been no moves by the federal government to prosecute these cases. The vote on the motion was as follows: Yeas: Weitkunat, Marvel, Ohlson, Poppaw and Horak. Nays: Troxell. IIrGINi•[671118W[ 204 December 4, 2012 Councilmember Manvel made a motion, seconded by Councilmember Poppaw, to adopt Ordinance No. 143, 2012, on First Reading. Yeas: Weitkunat, Manvel, Ohlson, Poppaw and Horak. Nays: Troxell. THE MOTION CARRIED. Items Relating to Oil and Gas Exploration and Production Regulations, Adopted Option C on First Reading The following is staff s memorandum for this item. "EXECUTIVE SUMMARY City Council directed staff to evaluate methods by which the City may regulate oil and gas exploration and production. Since oil and gas operations are governed primarily by the state and federal governments, staff will provide an overview of what regulations exist and where the City may be effective in both filling existing regulatory "gaps " and strengthening existing regulations in order to betterprotect the health and safety ofresiden is. Discussion includes development review criteria, water and air quality, environmental protections, and emergency services. Staff also presents information on non -regulatory ways to respond to residents' concerns including options such as surface-useand operator agreements, legislative advocacy, regional cooperation, and active participation in related state and federal rulemaking processes. Staff is providing three options for Council's consideration: • Option A: Dual -track development review process • Option B: Single-track development review process • Option C: Moratorium BACKGROUND /DISCUSSION ' Existing oil and gas activity in the city: Oil production is currently limited to the Fort Collins Field, located in the northeast portion of the city. The Fort Collins Field is regulated by the Colorado Oil and Gas Conservation Commission and has been in production since about 1925. In the City limits, the field consists of seven producing wells and seven injecting wells within the City limits, all of which are managed by one operator. Four residential subdivisions have developed around the Fort Collins field, with an additional subdivision planned in the area. In addition to the Fort Collins field, well development has historically occurred southward along. the 1-25 corridor. There are no active wells in this area today. As all wells were subsequently annexed into City boundaries, there have been no permits issued to date in the City ofFort Collins. Two recent developments may result in significant changes in oil and gas exploration in Lorimer County. The first is the successful exploration of the Niobrara formation, which lies deep under much ofnortheastern Colorado, and the second is the advancing technology ofhydraulic fracturing 205 December 4, 2012 to extract the resource from within deeply located shale deposits. This has raised considerable public concern. Existing regulations Because oil and gas exploration and production is regulated by the state in Colorado, local jurisdictions are limited in their ability to control the location, procedures, and impacts of oil and gas drilling in and around their boundaries. A combination of the state's laws and several court cases have resulted in the preemption oflocal control over various aspects ofoil andgas activities, and the scope of that preemption is the subject of ongoing litigation.. Accordingly, existing oil and gas regulations in the Land Use Code are limited to a single paragraph in Section 3.8.14 and reads as follows: "Any use that is not permitted under the provisions of Article 4, but that must be allowed because of preemption by a sovereign jurisdiction or because of a court order, shall be processed as a Planning and Zoning Board Review (Type 2 review) and shall be approved, with or without conditions, as necessary to ensure that such use complies with all general standards as set forth in Article 3 and zone district standards as set forth in Article 4 as are or may reasonably be interpreted to be applicable to such use, provided that such standards are not preempted or ordered by a court not to be applied. " . This section indicates that all oil and gas operations are subject to a Type 2, or Planning and Zoning Board review. This paragraph also suggests that oil and gas operations are subject to the standards set forth in the Land Use Code, to the extent that they are not preempted by the state. DISCUSSION - Proposed Framework for Oil and Gas Operations: As discussed above, the City has a shared authority with the state and other agencies for controlling how oil and gas operations occur both above and below ground. Typically, the City's Land Use Code serves as the primary mechanism for land development in the City. However, because of the shared authority with the state, staff has identified a number of methods to address specific community concerns and better address oil and gas operations at local levels. Staff recommends that the City engage at the federal, state and regional levels, as well, to better affect regulations or ensure compliance with regulations. Federal The federal level options are aimed at influencing the Environmental Protection Agency and other regulatory bodies to gain more stringent oversight of oil and gas operations. The EPA intends to have anew set of operating criteria for oil and gas in place in 2015 and City of Fort Collins staff intends to comment on whether those policies are implemented at a statewide or local level. Significant costs may be incurred by the City if implemented locally rather than utilizing existing statewide resources. 206 December 4, 2012 In addition to influencing governmental agencies at the federal level, the City can also utilize federal research, programs, and services to ensure oil and gas operations both within the City's boundaries and at a regional level do not degrade quality of life. State Colorado permits oil and gas activity through the Colorado Oil and Gas Conservation Commission (COGCC). In addition to the COGCC, two other state agencies have a role in oversight of oil and gas operations — the Colorado Department of Public Health and the Environment (CDPHE) and the Colorado Department of Parks and Wildlife (DPW). CDPHE's oversight is focused upon the potential and actual impacts of oil and gas activity on human health, specifically with regards to air and water quality. The DPW, a sister agency of the COGCC under the Department of Natural Resources, has oversight of habitat and wildlife protection. The state -level options include the following opportunities for City involvement: • Engage in stakeholder processes —As with the federal level engagement opportunities, the City can participate in stakeholder processes to affect the rules at the state level that affect oil and gas operations. • Local Government Designee —This tool establishes a staff representative who participates in the state's review of oil and gas applications and provides local comments onto the oil and gas applications at the state level. • Intergovernmental Agreement (IGA) with the state — An IGA could allow for the City to have inspection authority, which would increase the oversight of oil and gas operations within city limits. • Advocating for legislative change — The City can engage in legislative discussions to influence the state and other municipalities. Fort Collins' Legislative Policy Agenda calls for supporting legislation to provide communities with more tools to address the industry and more power over local land use. • Designated Outside Activity Areas— This tool allows for an area, e.g., City Park, to receive the same 350 foot setback that high density areas receive. The City applies for this designation through the state on areas in the City that meet certain qualifications, e.g., a certain number of users per day or per year. Longmont has successfully received approval for, two City park complexes. Regional Regional solutions include addressing some impacts of oil and gas activity collaboratively with other local governments. These collaborations include hiring a shared inspector to effectively balance the ability to inspect local wells with the number of existing wells and anticipated activity. Staff initiated conversations with several jurisdictions about sharing an inspector. The regional level also presents a partnership opportunity with other municipalities, counties, and researchers to address issues that go beyond our city borders, e.g., air quality. Intergovernmental 207 December 4, 2012 agreements to share monitoring resources and equipment for air quality are one tool the City could explore. From a research perspective, faculty at Colorado State University is examining air emissions from well sites in Garfield County beginning in spring 2013 through fall 2015. The results of this study, funded jointly by the County and industry, are anticipated to provide a better understanding of the toxicity of well emissions. Staffinet with the faculty associated with this study, as well as others at CSU who are examining air emissions and regional impacts from oil and gas operations, and will utilize the lessons learned from these research efforts to recommend changes to local regulations. Local The local solutions include at least five mechanisms to address oil and gas operations to ensure community concerns are addressed and residents' quality of life is protected: • Local Government Designee — This tool establishes a staff representative who participates in the state's review of oil and gas applications and provides local comments onto the oil and gas applications at the state level. • Operator Agreements —A negotiated agreement between the City and any operator wishing to conduct oil and gas operations in the City. The agreement could include additional, prescriptive requirements such as enhanced baseline and ongoing monitoring. • Intergovernmental Agreement with the state — An IGA could allow for the City to have inspection authority, which would increase the oversight of oil and gas operations within citylimits. It also provides opportunitiesfor partnering with our surrounding municipalities on a regional basis for inspection authority. • Surface UseAgreements A negotiated agreement between the landownerand any operator wishing to conduct oil and gas operations providing another mechanism to obtain enhanced conditions. • Land Use Regulations —A set of regulations and control mechanisms that are protective of public health and the environment. The Land Use Code amendments before Council include Option A (a dual -track development review process) and Option B (a single-track development review process). The regulatory options are described in greater depth below. Land Use Regulations — Review Processes Two options are presented related to Land Use Code regulations: Option A: Dual -track development review process, which includes both an expedited and standard review process OptionB: Single-track developmentreviewprocess— Thisoptioncombinestheprescriptive criteria in the expedited review track with the standard review process. Under this option, all development review applications would be processed under a single review track and required to meet the same criteria. All decisions would be made by the Planning and Zoning Board. M December 4, 2012 The review processes for the dual-trackdevelopment reviewprocesses are outlined in Table I below (see Table 2 for the single-track review process). The Standard Review process requires the operator to locate a well and operate in a manner that does not degrade quality of life (e.g., adjacent land uses, natural resources, water quality, air quality, visual and scenic resources, etc.). The Standard Review process also requires operators to attend a neighborhood meeting and a hearing in front of the Planning and Zoning Board, pursuant to the Type 2 standards currently outlined in the Land Use Code.. The regulations outlined in the Standard Review process however, are more goal -based than prescriptive. Alternatively, the Expedited Reviewprocess requires operators (who voluntarily choose this option) to meet specific, objective criteria prescribed in the review process. By meeting these more prescriptive standards, staff proposes that public comments only be taken in a written format and that the Director of Community Development and Neighborhood Services has the final decision - 'making authority. This dual-trackreviewprocess is a model utilized by other local governments to address oil and gas development and has achieved some success in engaging operators in meeting specific objective criteria. Table 1: Option A: Dual -track review process, including the standard and expedited review processes, notice requirements, and decision -making authority. Element. Standard Review Process Expedited Review Process (Type 2 Review Basic Development Review Regulations Must locate a well and operate Must meet ALL specific, prescriptive criteria in a manner that does not degrade q uality of life Notice Nol fication sent when an Not fication sent when an application is Requirement application is received, prior to received and if an application is approved s a neighborhood meeting and prior to the hearing Public „ Written comments can be Written comments can be provided after the Comments provided prior to or at the public notification that an application has been hearing received Residents and affected parties can testify at the public hearing Decision- Planning and Zoning Board Director approval making approval authority Setbacks If not located on an existing well pad, all operations must be 500' from an occupied structure, water well, Natural Area or City Park and 150' rom any propertv line Appeals Decisions are appealable•lo City Decisions can. be appealed in District Court Council 209 December 4, 2012 Table 2: Option B: Single-track review process Element Review Process Regulations Must meet ALL specific, prescriptive criteria Notice Notification sent when an application is received, prior to a neighborhood Requirements meetin and prior to the hearing Public Written comments can be provided prior to or at the public hearing Comments Residents and affected parties can testify at the public hearing Decision- Planning and 7oning Board approval making authority Setbacks If not located on an existing well pad, all operations must be 500'from an occupied structure, water well, Natural Area or City Park and 150' from an property line Appeals Decisions are appealable to City Council Land Use Regulations — Proposed Standards All new oil and gas operations will be subject to the requirements in either the standard review or expedited review track, (Table 3) unless Option B is adopted by Council and then the standards in expedited review will prevail. Common areas for oil and gas operators to address in submittals include air quality, water quality, and natural resource protection. Within each area the standards differ based upon the review process. The conditions offered for standard review consist largely of plans and information about proposals for preventing or mitigating community impacts. Table 3: This table outlines the standards for air quality, water quality, natural resources standards, general standards and reciprocal setbacks associated with both the standard and expedited reviews. Option A Option B Regulation Standard Review Expedited Review Air Quality Minimize all 95% VOC 98% VOC destruction 98% VOC destruction emissions (Volatile Organic Compounds) destruction Flares and -No open flares -No open flares -No open flares combustion -Automatic -Automatic.ilarne ignition -Automatic flame ignition devices flame ignition system with surveillance syslem with surveillance system 210 December 4, 2012 Regulation Pollution Prevention Containment Pneumatic Controllers Standard Review -Leak Detection Program Required Option A Expedited Review -Air Quality Mitigation plan required - Leak Detection Program required -Reduce methane emissions during maintenance Must ensure no Require Closed Loop Pitless significant systems Must ensure no significant Electric Engines Required for Pumping units Use no or low bleed devices 1,f61- pronping units compressors Green Must ensure no Capture gas during completion Completions significant or use completion combustion degradation devices rather than flare or vent Air Quality Monitoring Must ensure no significant degradation of air quality Baseline and well completion monitoring required, and additional post -completion testing ntcry be required if changes in air quality are identified Water Quality Water Quality Must ensure no Baseline monitoring within '/z Monitoring Plan significant mile: degradation of -Sample four sites water quality -Sample multiple aquifers -Sample up and down gradient Option B -Air Quality Mitigation plan required Leak Detection Prograr required -Reduce methane emissions during maintenance Require Closed Loop Pitless systems Use no or low bleed devices Required for pumping units and compressors Capture gas during completion or use completion combustion devices rather than flare or vent Baseline and well completion nnonitoring required, and additional post -completion testing mqv be required if changes in air quality are Baseline monitoring within '% mile: -Sample four sites -Sample multiple aquifers -Sample up and down gradient Conduct Must ensure no Monitor at same locations 1, 3, Monitor at same locations Subsequent significant and 6 years after well 1, 3, and 6 years after well Monitoring degradation of completion completion water qualifv 211 December 9, 20I2 Option A Option B Regulation Standard Review Expedited Review Soil Gas Must ensure no -Monitor soil gas within 90 -Monitor soil gas within Monitoring significant days of well completion 90 days of well completion degradation of -Results may trigger additional -Results may trigger water quality groundwater monitoring additional groundwater monitoring Natural Resources Natural Resources Must ensure no -Must be set back 500 feet from -Cannot qualify if within Protection significant a waterbody, stream, wetland, 500 feet of a waterbody, degradation Natural Area or Park stream, wetland, Natural -Compliance with all buffer Area or Park standards -Compliance with all buffer standards Existing Minimize Preservation of Preservation of Vegetation disturbance existing vegetation, existing vegetation, mitigation requirements I mitigation requirements General Conditions that apply to all oil and gas operations, regardless of the review track selected Emergency Must have a plan in compliance with the International Fire Code Response Include emergency contact information for the operator Trigger/threshold levels identified to determine when a state of emergency should be declared Spills shall be immediately reported Establish a process for the operator to notify neighbors regarding risks and establish a communication process Transportation -Access roads and access points shall be provided, reviewed, and approved Ili, the City . A traffic impact anal' sis shall be submitted; all street frontage shall be improved in accordance with the Larimer County Urban Area Street Standards, including street trees, sidewalk, curb and gutter Transportation fees and securities, i.e., bond or letter of credit, provided to ensure no damage to City s1reels, including any access routes Lighting Except during drilling, completion or other activities where worker safety is a concern, all lighting shall be fully shielded and not spill off the site Spills Chemical spills and releases shall be reported in accordance with local, state, and federal laws Chemical All Material Safety Data Sheets (MSDS) shall be provided to the City and Disclosure Emergency Personnel Noise Use an acouslically insulated cover to enclose the rnolor or engine All production equipment used shall comply with the noise levels in our Municipal Code in residential zones 212 December 4, 2012 Option A Option B Regulation Standard Expedited Review Review Reciprocal setbacks — applies to future residential development proposals in proximity of oil and gas operations Abandoned and Setback ranges from 20-50 feet from the abandoned and plugged well, base plugged wells on screening, berming, and fencing options Any oil and gas Setback ranges fi-ain 150-250 feet from all other wells, based on screening, well that has not berming and. fencing options been plugged and From a safeh1 perspective, the niinimmn setback should never be less than abandoned 150' FINANCIAL /ECONOMIC IMPACTS Adoption of the Land Use Code regulations, in either Option A or Option B will require interdisciplinary oversight in the development review process beyond the typical development review process. For example, additional staff time from representatives from Environmental Sustainability and Utilities will be required to evaluate the air and water quality elements of any proposed oil and gas operation. If Council indicates staff should continue to pursue the non -regulatory options, e.g., the Local Government Designee, Intergovernmental Agreements for inspection authority, etc., then the financial requirements from the City will increase. Funds for these efforts have been allocated through the 2013-2014 Budget (Offer 197.2 Oil and Gas Liaison). ENVIRONMENTAL IMPACTS While the proposed Land Use Code regulations are designed to protect the City's quality of life, sense of place, and public health, oil and gas drilling within the city still could have significant impacts on air quality and water quality, and there is also concern about the increased risk ofspills and releases of hazardous materials due to an increase in use, storage and transportation ofsuch materials. In addition, there are high volumes of truck and heavy equipment associated with oil fields. In addition to these impacts, well pads and service roads are fragmenting wildlife habitat, on a massive scale in northeastern Colorado and in other communities throughout the western United States. The City's Natural Areas, both within and outside of the City, are threatened by this fragmentation. While there is conflicting technical information regarding air and water quality threats, there is little doubt that oil and gas drilling would negatively affect the environment in the community and does not support the City's goals for sustainability. STAFF RECOMMENDATION Staff presents the following options to the Council for consideration: 213 December 4, 2012 Option A: Dual -track development review process This option includes both expedited and standard review. • The expedited review track requires operators to meet specific, objective criteria and agree to increased setbacks, e.g., 500 feet from an occupied structure, water body, natural area, or City park and ISO feet from any property line.. By electing to meet these more prescriptive standards, a public hearing and neighborhood meeting are not required. Instead, notification is provided when an application is received, and if an application is approved. Written comments can be submitted to the Director during the review process. The Director has the final decision -making authority. • The standard review track requires the operator to locate a well and operate in a manner that does not significant degrade our quality of life. All standard review applications are subject to a neighborhood meeting and a public hearing before the Planning and Zoning Board. All Board decisions are appealable to the City Council. Option B: Single-track development review process This option combines the prescriptive criteria in the expedited review trackwith the standard review process. Under this option, all development review applications would be processed under a single review track and be required to meet the same criteria. All decisions would be made by the Planning and Zoning Board. Option C. Moratorium Local governments have considered the use of moratoriums to prevent new oil and gas operations within their jurisdictions, citing the need to craft and adopt local land use regulations and/or to allow the state to address its rulemaking process as it relates to setbacks and water quality regulations. Current State Efforts Related to Oil and Gas regulation The Colorado Oil and Gas Conservation Commission is currently addressing its rules by considering amendments to water sampling and monitoring as well as addressing well setbacks and noise. The City secured Party Status for both rulemaking hearings, making Fort Collins the only city with such status and providing the City with an opportunity to submit comments on the state's proposals, recommend alternatives, and a greater length of time to speak before the Commission. The state is reviewing its existing setback rules. New rules are anticipated to be in place early in 2013. Setbacks for new wells from existing homes are an important consideration for several reasons — there is uncertainty about emissions from well sites and the process of drilling and maintaining a well site could cause noise, traffic and light impacts. The current setbacks for new wells are 150 feet from an occupied structure, 350 feet from a high density area and 500 feet from some structures like hospitals; schools, and nursing homes. Many groups recommend increasing the state setbacks from homes to 1,000 or even 2,000 feet. The City of Fort Collins will seek additional setback distance, greater powers for residents in influencing site location proposals, and protection for community assets like natural areas and parks. 214 December 4, 2012 Water quality is another area that the Commission is currently addressing. The proposal under consideration adopts an industry -sponsored voluntaryprogram and makes thatprogram mandatory. Under the program, baseline groundwater quality samples will be collected from two existing groundwater features, such as permitted and registered groundwater wells or groundwater seeps and springs, which are located within 112 mile of the surface location ofnew oil and gas well pads, or additional wells on existing well pads. These samples will be collected before drilling begins. A second sample will be collected from each groundwater feature within one to three years after drilling is completed. If the state's rules on water quality monitoring are amended, the City may also need to modify proposed Land Use Code regulations as presented in Option A or B or in , development submittal requirements. Staff also requests direction on suggested state, regional, and "other" local options, including: • Engage in stakeholder processes • Continue with Local Government, Designee • Pursue an intergovernmental agreement with the State for inspection authority • Pursue an intergovernmental agreement with the County for the GMA • Advocate for more legislative change • Consider entering into an operator agreement with the producer of the Fort Collins Field • Develop a "model " surface use agreement that can be used for any city -owned lands BOARD / COMISSION RECOMMENDA TION City staffpresented the proposedLand Use Code regulations and associated non -regulatory options to numerous City boards and commissions. Formal recommendations were made by the Water Board (8-1), the Natural Resources Advisory Board (6-1), and the Air Quality Advisory Board (7-0) to support the Standard (Type 11)' and Expedited (Basic Development Review) processes and associated regulations. The Land Conservation and Stewardship Board voted 6-0 to support the use of standard review when considering applications on City -owned Natural Areas. The Board further recommended a six month temporary moratorium on new oil and gas applications to provide staff with additional time to develop additional options. While the Air Quality Advisory Board indicated support for the Standard and Expedited review, the Board also expressed additional non -regulatory options that staff should pursue. These recommendations are included in Attachment 14. PUBLIC OUTREACH A multidisciplinary City staff team worked to develop an understanding of the oil and gas industry, community concerns related to industry practices, and the statewide regulatory processes in place. This group researched industry exploration and extraction practices, working closely with peer municipalities throughout the Front Range to identify and incorporate the best practices of other Colorado municipalities into local regulation ofthe industry. The research process included local focus group meetings, formation of an Oil and Gas Advisory Committee that included representatives from eight City boards and commissions, talking with state experts and meetings 215 December 4, 2012 with Colorado State University professors and researchers, Colorado Oil and Gas Conservation Commission staff, and the local oil and gas operators. The Oil and Gas Advisory Committee was created to gather input from a diverse group of boards and commissions. The group met three times as public meetings and provided input to staffon draft regulations. The Committee included self-selected representatives from eight City boards and commissions, including the Air Quality Advisory Board, Economic Advisory Commission, Energy Board, Land Conservation and Stewardship Board, Natural Resources Advisory Board, Parks and Recreation Board, Planning and Zoning Board, and Water Board. Staff conducted meetings with small groups of interested citizens. Residents of the Hearthfire subdivision met with staff and continued to communicate over the course of the project: Outreach included a focus group with representatives of local environmental groups before and after the development ofdraftregulations. Staffinetwith Don't Frackthe Fort, agroup generated bymutual concern over hydraulic fracturing in the community, four times. Staffattended numerous public meetings on the subject of oil and gas development hosted by other groups." Laurie Kadrich, Community Development and Neighborhood Services Director, discussed the options available for Council consideration: a dual -track development review option, a single-track development review option, and a moratorium. She reviewed the existing wells within the City and growth management area and noted the only operational field within City limits involves oil production, not gas production. Staff is recommending that Council adopt some type of regulations given rapidly changing technology in the drilling industry. Kadrich reviewed the State agencies which permit and regulate the oil and gas industry and reviewed the regional aspects of potential regulations. The County does not currently consider an oil and.gas permit to be development activity. Kadrich detailed the three options available for Council consideration and discussed the proposed regulations. Ross Cunniff, 2267 Clydesdale, supported the moratorium option. Dr. Milt Garrett, 720 Kirkwood, supported a ban on all fracking. Laurie Brunswig, 1905 Ridgewood, Water Boardmember, supported the moratorium option. Nancy York, 130 South Whitcomb, supported the moratorium option. John Fye,1405 Briarwood Road, supported the moratorium option. Fred Kirsch, Community for Sustainable Energy, supported a toxic alert system. Margo.Geppert, 2818 McKeag Drive, discussed the health risks of oil and gas drilling and supported the moratorium option. 216 December 4, 2012 Todd Simmons, Larimer County resident, supported the moratorium option. Debra Joy, Fort Collins resident, supported the moratorium option and a complete ban on fracking. Brian Hull, Fort Collins resident, supported the moratorium option. Marley Hesser, 2133 Ford Lane, discussed the health risks of fracking to children. Janice Lynne, 218 South Washington, discussed the split estate doctrine and suggested it should be revised. Danny Hesser, 2133 Ford Lane, supported a ban on fracking citing water contamination concerns. Hunter Buffington, Fort Collins Sustainability Group, supported the moratorium option. Mayah Hesser, 2133 Ford Lane, supported a ban on fracking citing health risks. Zach Heath, Fort Collins resident, supported the moratorium option. Becky Boutz, 6350 Kremmers Lane, LaPorte, supported a ban on fracking. Bill Jenkins, 710 Mathews, supported the moratorium option. Jake Matter, 1525 Sherman Street, Denver, Assistant Attorney General representing the Colorado Oil and Gas Conservation Commission, opposed the adoption of regulations or a moratorium. . Joe Kissell, 913 West Oak, opposed hydraulic fracking and supported the moratorium option. Leo Buslato, Fort Collins resident, supported the moratorium option. Liz Pruzner, Natural Resources Advisory Board, stated the Board supports Council moving forward with the highest level of protection for the city and personally supported the moratorium option. Elizabeth Shudeth supported a ban on fracking, or at least a moratorium. Paul Smith, Fort Collins resident, supported the moratorium option. Matthew Martinez, Fort Collins resident, opposed fracking and discussed legislation. Robert Winkler, Northern Colorado resident, supported an indefinite moratorium on fracking. Jim Jeffrys, 2225 Branson Street, supported- the moratorium and eventual ban on fracking. Scott Hall, Prospect Energy, supported an option that would require Prospect Energy not conduct or attempt to permit any new well or fracking within the city limits for up to six months, or until the City approves a mutually -agreeable operating agreement between Prospect Energy and the City of Fort Collins. 217 December 4, 2012 Zach Weeks, Fort Collins resident, supported the moratorium option and an eventual ban on fracking. Clint Rhodd, Colorado resident, stated fracking chemicals are environmentally friendly. Dave Bell, Fort Collins resident, supported sustainable energy and a ban on fracking. Chris Giblar, 6321 Treestead Road, supported the moratorium option. Rudi Ziti, 1626 Fantail, stated no impacts on ground water have occurred as a result of hydraulic fracking and stated energy needs cannot be met solely by sustainable sources. He opposed any Council action on regulations. Rob Willis, attorney for Prospect Energy, opposed any Council action on regulations. Philip Friedman, Natural Resource Advisory Board, supported Option B as well as a moratorium and ultimate ban on fracking. Tom Hoehn, 218 South Washington, supported a ban on fracking. Ward Giltner, Prospect Energy, opposed.Council action on regulations. Rose Lew, 2014 Westview Road, supported the moratorium option and an ultimate ban on fracking. Sarah Landry, Colorado Oil and.Gas Association, requested additional time to explore an operator agreement with Prospect Energy and opposed the moratorium option. Jerry Gerber, Fort Collins resident, questioned why fracking is being considered and stated it is an extreme measure. Mary Griggs, Prospect Energy, discussed the safety and permitted emissions of the Prospect Energy field. Bob Overbeck, 302 Parker, supported the moratorium option. Erin Lamb, 1476 Edgewood Court, stated the LGD process works and supported collaboration with Prospect Energy citing the fiscal benefits of the industry. Chester McQueary, 613 Princeton Road, supported the moratorium option. Rico Moore, Fort Collins resident; supported a ban on fracking. Kevin Cross, Fort Collins Sustainability Group, supported a six-month moratorium upon the submittal of a new application for drilling. (Secretary's note: The Council took a brief recess at this point in the meeting.) 218 December 4, 2012 Councilmember Horak asked what would occur should an operator who is not part of any operating agreement pull a permit. Kadrich replied the City would immediately begin negotiations with that operator. Dan Weinheimer, Policy and Project Manager, concurred. Councilmember Horak asked about existing state setback requirements which appear to show the majority of City of Fort Collins land area being restrictedfrom oil and gas development. Kadrich replied that assessment is correct. Councilmember Horak asked how many acres within the city and growth management area are available for oil and gas development and how that would change given various setbacks. Weinheimer .replied acreages were not examined and acquisition of that data would require additional research. Councilmember Horak requested the information prior to Second Reading. Councilmember Horak asked if any work was done to look at the locations of shale deposits and the likelihood of their development based on various setbacks. Weinheimer replied it was unclear if that type of research was necessary based on some of the surface uses and the setbacks. Councilmember Manvel asked about the setback requirements with respect to parks and natural areas. Weinheimer replied there is a process called the Designated Outside Activity Area which is part of the state setback rule -making process. There is talk of limiting the application to an ingress and egress for emergency services. There was a recommendation from staff to consider a recommendation to the Oil and Gas Conservation Commission to exclude the use of city parks and natural areas. Councilmember Poppaw asked about the current usage criteria. Weinheimer replied that current criteria would be better applied to parks than natural areas. Councilmember Troxell asked how many well permits have been pulled for the City of Fort Collins. Kadrich replied there have been no permits pulled through the City of Fort Collins process. All existing operating wells were permitted previously and annexed into the city. Councilmember Troxell asked about the location of the nearest well permit around Fort Collins. Weinheimer replied Timnath and Larimer County have both had permit activity. Councilmember Troxell asked if staff studied geologic mapping for the Fort Collins area. Kadrich replied the geological maps were examined for the existing Fort Collins field. Additionally, staff met with geologists from Colorado State University regarding that field and the southeast part of town where drilling may be a possibility. Councilmember Troxell encouraged a better understanding of the existing geologic conditions and a tracking of neighboring permits. He asked about the outcome of studies of odors near the existing field. Weinheimer replied a pond feature in the Hearthfire subdivision was the cause of the odor. Councilmember Troxell noted Options A and B have been modeled after Boulder's standards and questioned whether they match what is needed in Fort Collins. Kadrich replied some of the standards may not be what is required for the Fort Collins field. However, there are some areas in the southeast part of the city limits, or near the city limits, that may be developed differently than what is in the Fort Collins field. 219 December 4, 2012 Councilmember Manvel clarified water is not being pumped out of the ground; the water being used is recirculated. He expressed appreciation for staff work on the item and stated he is leaning toward a moratorium in order to get any possible regulations correct. He suggested the issues of street maintenance, financial consequences and local impact fees should be addressed. He also noted the water usage issue needs to be addressed. Councilmember Manvel requested input regarding the potential tension with the Colorado State Land Board regarding a moratorium on oil and gas development at the Soapstone Natural Area. John Stokes, Natural Resources Director, replied about a third of the minerals at Soapstone and Meadow Springs Ranch are owned by the State Land Board. The other two-thirds are privately owned. He expressed concern that the State may be taken aback by a moratorium. Councilmember Manvel encouraged collaboration with the State Land Board prior to Second Reading. Mayor Pro Tem Ohlson asked if Option C currently includes natural areas. City Attorney Roy replied the expanded version of the Option was in Council's packet; however, the original published version did not include natural areas. Mayor Pro Tem made a motion, seconded by Councilmember Poppaw, to adopt Ordinance No. 145, 2012, establishing a moratorium on the acceptance or processing of land use permit applications and other applications seeking approval to conduct oil and gas extraction or related operations within the City of Fort Collins, Option C, as provided in Council's read -before packet, on First Reading. City Attorney Roy read the differences between the Ordinance as provided in Council's packet versus the originally published version, which included three new whereas clauses to include the City's natural areas and parks outside of the City limits. ' Mayor Pro Tem Ohlson stated his comments are not directed toward Fort Collins' existing operator, Prospect Energy. He read a passage from the staff report indicating the potential risks of drilling and noted this moratorium is not a ban, but a time-out to allow the opportunity to ensure the next step is the best one for the community. He stated he would like the impact to wildlife, habitat fragmentation, and restoration to be addressed in the future. Councilmember Troxell stated he would support the motion. The City should be willing to support and work with Prospect Energy. Councilmember Manvel expressed appreciation for Prospect Energy in its efforts to work with the community. Councilmember Horak stated he would support the motion. He noted the City does not have any regulatory authority over oil and gas development in the County, despite the growth management area. He supported an operator agreement with Prospect Energy. Mayor Weitkunat discussed the events that led up to these options and stated she would support the moratorium as the City has reached a point where the state regulations have not done exactly what is correct for this community. 220 December 4, 2012 The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Ohlson, Poppaw, Horak, and Troxell. Nays: none. THE MOTION CARRIED. Councilmember Horak made a motion, seconded by Councilmember Manvel, that Council direct the staff to recommend the Colorado Oil and Gas Conservation Commission, at its upcoming rule - making proceeding that the setbacks of oil and gas exploration activities from occupied buildings be as follows: (1) new oil and gas facilities must be set back from existing homes at least 1,000 feet unless an applicant obtains local government approval and homeowner consent to locate the operation closer, which approval would be obtained only under the following conditions: (a) cities and operators would have at least one community meeting regarding the application where input could be provided by citizens, which input could alter the location or other characteristics of the proposed oil and gas facility, (b) the community meeting would be posted publically for all interested parties to attend and residents living within yz mile would receive written notice of the meeting at least two weeks prior to the meeting, (c) if the proposed setback distance conflicted with the other community goals, such as the protection of the natural areas and parks and zoning compatibility, then the city and the operator would have to negotiate an acceptable drilling and operation site; (2) as a heavy industrial process, oil and gas production facilities would have to be sited in industrial zones or other zoning districts deemed appropriate by the city; (3) drilling and production operations in natural areas and community parks should be prohibited; (4) further study of human environmental health should be conducted to ensure that setbacks are appropriate. Councilmember Poppaw stated the Sierra Club has recommended a setback of 2,000 feet and asked that their research be analyzed. Mayor Pro Tern Ohlson clarified that staff should continue to work on regulations during the moratorium period. The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Extension of the Meeting Councilmember Troxell made a motion, seconded by Councilmember Manvel, to extend the meeting past 10:30 p.m. in order to complete the business on the agenda. Councilmember Poppaw requested an estimate on the time needed for the next four items. City Manager Atteberry replied the next three items would likely be five minutes each and the final item has a brief staff report. Councilmember Poppaw made a motion to amend, seconded by Councilmember Horak, to extend the meeting only to 11:00 p.m. 221 December 4, 2012 The vote on the motion to amend was as follows: Yeas: Poppaw and Horak. Nays: Ohlson, Weitkunat, Troxell and Manvel. THE MOTION FAILED. The vote on the motion to extend the meeting was as follows: Yeas: Horak, Ohlson, Weitkunat, Troxell and Manvel. Nays: Poppaw. THE MOTION CARRIED. Ordinance No. 146, 2012, Amending Section 2-596 of the City Code and Setting the Salary of the City Manager. Adopted on First Reading The following is staff s memorandum for this item. "EXECUTIVE SUMMARY City Council met in executive session on November 13, 2012, to conduct the performance review of City Manager Darin Atteberry. Ordinance No. 146, 2012, establishes the salary of the City Manager. BACKGROUND /DISCUSSION Ciry Council is committed to compensating employees in a manner which is fair, competitive and understandable. The goal as an employer is to attract and retain quality employees and to recognize and reward quality performance. In order to accomplish this goal the City Council and the City Manager meet twice a year to discuss performance and set goals for the coming year. In 2012, the total compensation paid to the City Manager included the following: 2012 SALARY AND BENEFITS ANNUAL NON -MONETARY BENEFITS Salary $ 197,203 Vacation (30 days per year) Medical Insurance 8,640 Holidays (11 days per year) Dental Insurance 588 Life Insurance 345 Long Term Disability 828 ICMA (457) 5,916 ICMA (401) 19,720 Car Allowance 9,000 Total Monetary Compensation $ 243,365 Resolution 2006-124, which establishes the process for evaluating the performance of the City Manager, City Attorney, and Municipal Judge states that any change in compensation for the City 222 December 4, 2012 Manager, City Attorney and. Municipal Judge will, be adopted by the Council by ordinance in sufficient time for the change in compensation to take effect as of the first full pay period of the ensuing year. The Ordinance will amend the City Code to reflect City Manager Darin Atteberry's 2013 salary. " Amy Sharkey, Compensation and Benefits Manager, stated the City's pay philosophy is to pay employees a salary that is market -based and competitive, allowing the City to attract and retain quality employees needed to execute the vision and mission of the City of Fort Collins. City employees will be granted merit increases based on performance and position in the range and skill level increases will occur based on attainment, demonstration, and performance. City Manager data is gathered nationally and within the Front Range. The City Manager is 9% behind the national market. Eric Sutherland, 3520 Golden Currant, stated a responsible Council should not be considering a salary increase for the City Manager, but should be considering suspending him based on the loan made for the RMI2 project. Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt Ordinance No. 146, 2012, on First Reading, with a five percent salary increase inserted. He noted this increase is almost double that of the average for all City employees. He expressed appreciation for the work of the City Manager. Councilmember Troxell thanked City Manager Atteberry for his service to Council and the community. Mayor Weitkunat expressed appreciation for City Manager Atteberry's leadership and service. Councilmember Poppaw thanked City Manager Atteberry for his work and service. The vote on the motion was as follows: Yeas: Weitkunat, Marvel, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Ordinance No. 147, 2012, Amending Section 2-581 of the City Code and Setting the Salary of the City Attorney, Adopted on First Reading The following is staff s memorandum for this item. "EXECUTIVE SUMMARY City Council met in Executive Session on November 13, 2012 to conduct the performance review of City Attorney Steve Roy. Ordinance No. 147, 2012, establishes the 2013 salary of the City Attorney. 223 December 4, 2012 BACKGROUND /DISCUSSION City Council is committed to compensating employees in a manner which is fair, competitive and understandable. The goal as an employer is to attract and retain quality employees and to recognize and reward quality performance. In order to accomplish this goal the City Council and the City Attorney meet twice a year to discuss performance and set goals for the coming year. In 2012, the total compensation paid to the City Attorney included the following: 2012 SALARYAND BENEFITS ANNUAL NON -MONETARY BENEFITS $almy $ 165,691 Vacation (32.5 days per year) Medical Insurance 8,640 Holidays (11 days per year) Dental Insurance 588 Life Insurance 289 Long Term Disability 696 ICMA (457) 4,971 ICMA (401) 16,569 Total Monetary Compensation $ 198,569 Resolution 2006-124, which establishes the process for evaluating the performance of the City Manager, City Attorney, and Municipal Judge, states that any change in compensation for the City Manager, City Attorney and Municipal Judge will be adopted by the Council by ordinance in sufficient time for the change in compensation to take effect as of the first full pay period of the ensuing year. The Ordinance will amend the City Code to reflect City Attorney Roy's 2013 salary." Amy Sharkey, Compensation and Benefits Manager, stated the City Attorney compensation is 2.1 % behind the national market. Eric Sutherland, 3520 Golden Currant, stated tax payers fund these salaries. He commented on the RMI2 loan. Councilmember Manvel made a motion, seconded by Mayor Pro Tern Ohlson, to adopt Ordinance No. 147, 2012, on First Reading, with a three percent salary increase inserted. Councilmember Manvel expressed appreciation for City Attorney Roy's work and service. Councilmember Horak asked why the regional market is being considered for the City Attorney salary comparisons. Sharkey replied it was a market that was identified in 2008 by Council for review for the City Manager and the City Attorney. National data was collected since 2008. Councilmember Horak stated the western regional market is not relevant when looking at this position. Councilmember Manvel agreed and requested that staff examine that issue. 224 December 4, 2012 Councilmember Poppaw expressed appreciation for City Attorney Roy's work for Council and the community. Councilmember Troxell commended City Attorney Roy on his service. Mayor Weitkunat commended City Attorney Roy on his professionalism and work that consistently surpasses expectations. Mayor Pro Tern Ohlson commended the integrity ofthe City Manager, City Attorney, and Municipal Judge. The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Items Relating to the Employment of the Municipal Judge, Adopted on First Reading The following is staff s memorandum for this item "EXECUTIVE SUMMARY A. First Reading of Ordinance No. 148, 2012, Amending Section 2-606 of the City. Code and Setting the Salary of the Municipal Judge. B. Resolution 2012-116 Reappointing Kathleen M. Lane as Municipal Judge and Authorizing the Tenth Addendum to the Judge's Employment Agreement. City. Council met in executive session on November 13, 2012, to conduct the performance review of Municipal Judge Kathleen Lane. Ordinance No. 148, 2012, establishes the 2013 salary of the Municipal Judge. Resolution 2012-116 reappoints Judge Lane for another two-year term to expire December 31, 2014 and authorizes the Mayor to execute an addendum to the Judge's employment agreement to reflect the change in term. BACKGROUND /DISCUSSION Article VII, Section 1 ofthe Charter provides that the Municipal Judge is to be appointed far a term of two years. Kathleen M Lane was first appointed to serve as the City's Municipal Judge effective July 1, 1989. Resolution 2010-074 reappointed Judge Lane for a two-year term ending on December 31, 2012. This Resolution reappoints Judge Lane for another two-year term to expire December 31, 2014 and authorizes the Mayor to execute an addendum to the Judge's employment agreement to reflect her new term.of office. City Council is committed to compensating employees in a manner which is fair, competitive and understandable. The goal as an employer is to attract and retain quality employees and to 225 December 4, 2012 recognize and reward quality performance. In order to accomplish this goal the City Council and the Municipal Judge meet twice a year to discuss performance and set goals for the coming year. In 2012, the total compensation paid to the Municipal Judge included the following: 2012 SALARY AND BENEFITS ANNUAL NON -MONETARY BENEFITS Salary (0.8 FTE) S 95,436 Vacation (30 days per year) Medical Insurance 8,640 Holidays (11 days per year) Dental Insurance 588 Life Insurance 167 Long Term Disability 401 ICMA (457) 2,863 , ICMA 401 9,544 Total Monetary Compensation S 118,764 Resolution 2006-124, which establishes the process for evaluating the performance of the City Manager, City Attorney, and Municipal Judge, states that any change in compensation for the City Manager, City Attorney and Municipal Judge will be adopted by the Council by ordinance in sufficient time for the change in compensation to take effect as of the first full pay period of the ensuing year. The Ordinance will amend the City Code to reflect Judge Lane's 2013 salary." Amy Sharkey, Compensation and Benefits Manager, stated the Municipal Judge salary is 6%behind the Colorado market. Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt Ordinance No. 148, 2012, on First Reading, inserting a four percent salary increase. . Councilmember Manvel commented on Judge Lane's outstanding work and service. Mayor Pro Tern Ohlson stated it may take two years for the Municipal Judge and City Manager salaries to come even with market. Both employees were ranked very high in performance. Councilmember Horak stated the total compensation package should be considered rather than just salary. He encouraged staff to examine that topic. Councilmember Poppaw thanked Judge Lane for her service and increased efficiencies. Councilmember Troxell commended Judge Lane on her service. Mayor Weitkunat expressed appreciation for Judge Lane's professionalism. The vote on the motion was as follows: Yeas: Weitkunat, Manvel, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. 226 December 4, 2012 Councilmember Horak made a motion, seconded by Councilmember Poppaw, to adopt Resolution 2012-116. Yeas: Weitkunat, Manvel, Ohlson, Poppaw, Horak and Troxell. Nays: none. THE MOTION CARRIED. Other Business Ordinance No. 149, 2012, Amending Division 2 of the Land Use Code to Allow for the Processing of Applications for the Development of Property Not Yet under the Full Ownership and Control of the Applicant or Developer, Adopted on First Reading The following is staff's memorandum for this item. "EXECUTIVE SUMMARY The Land Use Code (LUC) presently requires that all submittal requirements must be met before an application can be processed. One of those submittal requirements is that the applicant must own or control all of the property that is the subject of the application. Staff recommends that the City Council amend the LUC to give the Director discretion to allow applications to proceed through the review process under certain circumstances even if not all of the subject property is yet controlled by the applicant. The applicant would have to show that, at the time of application, the applicant has ownership of, or the legal right to use and control, the majority of the property to be developed. The Director would then have to determine that reviewing the application would not be contrary to the public interest, and the applicant would need to agree not to record any documents related to the processing of the application until the applicant had gained control of the entire property. The applicant would also be required to indemnify the City against any third parry claims related to the processing of the application. BACKGROUND /DISCUSSION Currently the Section 2.2.3 (C) (1) of the LUC limits the Director from submitting applications to the Planning and Zoning Board and/or Hearing Of until such time as documentation is presented that the applicant "has the requisite power, authority, clear title, good standing, qualifications and ability to submit and carry out the development and/or activities requested in the development application. ". Further, Section 2, 2.4 of the LUC states that an application cannot be processed or presented to a decision maker until the Director determines that it is complete and ready for review, and the determination ofsufficiency cannot be based on the perceived merits of the development proposal. The intent of these provisions appears to be to avoid expending City resources on proposals that may never come to fruition. In most situations, this makes sense. Sometimes, however, these requirements can cause unnecessary, costly delays that may work to the detriment not only of the developer but also the City. Therefore, staffis recommending that these L UCprovisions be amended to allow for moreflexibility in the development review process and afford the Director more discretion in determining whether 227 December 4, 2012 the review of a particular development proposal can and should move ahead in advance of all submittal requirements being met. Additionally, thefact that an application may be allowed to proceed through the reviewprocess will not entitle the applicant to actually commence development ofthe proposed project unless and until all other relevant Land Use Code provisions have been met, including the execution of a final plat and the issuance of building permits. The denial of an incomplete application that has been allowed to proceed to the decision maker under the provisions of this Section shall not cause a post denial re -submittal delay under the provisions of Section 2.2.11(D) (9). STAFF RECOMMENDATION Staffrecommends adoption of the Ordinance on First Reading. The LUC amendment will allow for more flexibility in the development review process and afford the Director more discretion in determining whether the review of a particular development proposal can and should move ahead in advance of all submittal requirements being met. BOARD / COMMISSION RECOMMENDATION If approved on First Reading, the Land Use Code amendment will be considered by the Planning and Zoning Board at a special meeting in mid -December so that the Council would have the Board's recommendation prior to Second Reading on December 18. " Mayor Weitkunat recused herself from the discussion of Ordinance No. 149, 2012, Amending Division 2 of the Land Use Code to Allow for the Processing ofApplications for the Development of Property Not Yet under the Full Ownership and Control of the Applicant or Developer, due to a potential conflict of interest. Laurie Kadrich, Community Development and Neighborhood Services Director, stated this item is a proposal to examine what submittal requirements would be necessary in order for the Director to move a project development toward one of the hearing boards when the land may not be under full ownership or control of the applicant. Ross Cunniff, 2267 Clydesdale, asked if this Land Use Code amendment would allow developers to overwhelm the City with applications based on land they have little intent of acquiring unless they can push through the City process. Eric Sutherland, 3520 Golden Currant, stated the Land Use Code should protect the citizens. He questioned whether or not this change would protect citizens. Mayor Pro Tern Ohlson requested input regarding Mr. Cunniff s question. Kadrich replied the developer or applicant would need to have a majority ownership in the development and the process is quite costly in order to get a project to hearing. Councilmember Troxell requested staff input regarding what would be detrimental to the public interest with regard to accepting an application for development review. Kadrich replied she would 228 December 4, 2012 look at the totality of the application, the other information that has been submitted relative to the ownership of the property, and look for something in the developer's proposal that would be detrimental to the public interest if this project was reviewed. Going through the process does not allow the applicant or developer to build upon property of which they do not have entire ownership. Councilmember Manvel asked if this process is necessary for possible future eminent domain discussions. City Attorney Roy replied in the negative and stated processing the application is not a prerequisite to the URA Board's ability to authorize the acquisition of property. Councilmember Manvel stated this process appears to make eminent domain a more viable option. Mayor Pro Tern Ohlson questioned why this Ordinance was presented so quickly. City Manager Atteberry acknowledged this tool will be very helpful with the Foothills Mall redevelopment project, which has been an identified economic development project for at least the last eight years. Councilmember Manvel asked how the Director will be able to determine an application is not detrimental to the public good. City Attorney Roy replied this is a standard used elsewhere in the Land Use Code for various decision -makers. Council could direct staff to develop more specific criteria. Councilmember Manvel made a motion, seconded by Councilmember Troxell, to adopt Ordinance No. 149, 2012, on First Reading. Councilmember Horak stated this is a tool needed for certain land developments. Councilmember Troxell stated he would support the motion as this tool reflects the more complex, infill projects. The vote on the motion was as follows: Yeas: Manvel, Poppaw, Horak and Troxell. Nays: Ohlson. THE MOTION CARRIED. (Secretary's note: Mayor Weitkunat returned at this point in the meeting.) Councilmember Manvel received support from other Councilmembers to direct staff to work on the issue of homelessness in Fort Collins. Councilmember Troxell stated Boulder is considering a ban on retail marijuana stores in light of Amendment 64, prior to the state regulations being developed. He requested that the City Attorney's Office research the reasoning behind this type of ban and the possibility of bringing the issue before Council. Councilmember Horak stated he is willing to consider the issue. City Attorney Roy stated the State has an obligation to develop state regulations by July 1, 2013. The City has an obligation to develop regulations by October; however, the City would only begin to license businesses under those regulations if the State failed to develop regulations by July, or if, 229 December 4, 2012 having developed them, they failed to begin issuing licenses by the following January. He stated, in his opinion, Council does not have a decision to make until the middle of 2013. Councilmember Horak requested a work session item in order to provide the public and Council with information on timing and direction. Adiournment The meeting adjourned at 11:26 p.m. y OF.FOi?;, -.0 M yor (r� : r ATTEST: � . 17 �� v, 0 , City Clerk 230