HomeMy WebLinkAboutMemo - Read Before Packet - 10/19/2021 - Memorandum From Kelly Smith Re: 1041 Regulations (6)City Clerk
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6515
970.221-6295 - fax
fcgov.com/cityclerk
MEMORANDUM
DATE: October 19, 2021
TO:Mayor and Councilmembers
THROUGH:Kelly DiMartino, Interim City Manager
FROM:
RE:
Kyle Stannert, Deputy City Manager
Caryn Champine, Director of Planning, Development and Transportation
Paul Sizemore, Director of Community Development and Neighborhood
Services
Kelly Smith, Senior Environmental Planner
1041 Regulations
Attached is an updated ordinance with recommended changes from Staff for review.
Recommended changes are highlighted and in red font for convenience. These
recommendations are being introduced in a read before memo for transparency so that they
can be openly discussed should councilmembers have questions.
Section 4(1)(ii): we recommend changing pipe size to easement width as a proxy for
impacts that differentiate projects subject to the moratorium.
Section 4(2)(iii): we recommend removing language that restricts certain maintenance
activities and upgrades of existing pipeline during the moratorium.
Section 5(4)(iv): clarifies that projects exempted from the moratorium through the
exemption process would not be retroactively subject to 1041 regulations.
______________________________________________________________________________
Two slides have been included in the slideshow related to the recommended changes in the
designation ordinance:
Slide 9 shows the language recommended for removal.
Slide 10 shows the clarification that projects exempted from the moratorium through
the exemption process would not be subject to the 1041 regulations in the future.
______________________________________________________________________________
We would like to clarify that options presented during First Reading are very different than
options being presented at Second Reading. This especially matters as they relate to
recommendations by the Land Conservation and Stewardship Board (LCSB) and the Natural
Resource Advisory Board (NRAB).
First Reading: 3 Options were presented on project scope with Option 1 regulating the
fewest activities and Option 3 regulating the most activities. In this instance LCSB and
NRAB supported Option 3.
Second Reading:3 Options are being presented on project approach that will influence
the duration of a moratorium. Option 1 has the longest moratorium and Option 3 has no
moratorium. Boards have not weighed-in on these options.
______________________________________________________________________________
We would like to clarify that regional projects have not been identified as being directly
impacted by the moratorium because the impacts are linked to the uncertainty water providers
feel by the 1041 project. Since the September 21 Hearing, we have been able to deepen our
understanding of the correlation between the NEWT 3 pipeline and its importance in
transmitting water to the region to serve existing customers and future development proposals
in other communities. We are clear on the potential cascading impacts of the moratorium and
the general uncertainty created. This uncertainty may lead water providers to restrict taps for
new buildings until they feel assured that NEWT 3 can be developed.
______________________________________________________________________________
We have received a number of comments from different stakeholders. Letters have been
compiled and included as an attachment in this read before memo.
______________________________________________________________________________
Attached is the summary of research performed by staff of communities with 1041 regulations,
and lessons learned. This document was included in the July 27 City Council work session
packet. Councilmembers may find the information useful for tonight’s discussion.
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ORDINANCE NO. 122, 2021
OF THE COUNCIL OF THE CITY OF FORT COLLINS
DESIGNATING CERTAIN ACTIVITIES AS MATTERS OF STATE INTEREST AND
IMPOSING A MORATORIUM ON THE CONDUCT OF SUCH ACTIVITIES UNTIL CITY
COUNCIL MAKES A FINAL DETERMINATION REGARDING THE ADOPTION OF
GUIDELINES FOR THE ADMINISTRATION OF SUCH ACTIVITIES
WHEREAS, Colorado Revised Statutes (“C.R.S.”) Section 24-65.1-101 et seq,
commonly referred to as 1041 statutes or powers, empowers the City to designate areas and
activities to be matters of state interest and to adopt guidelines and regulations for the
administration of designated areas and activities; and
WHEREAS, pursuant to C.R.S. Section 24-65.1-401, the City may designate specified
areas and activities to be of state interest after holding a public hearing and considering the
intensity of current and foreseeable development pressures, specifying the boundaries of any
proposed area, state reasons why the particular area or activity is of state interest, the dangers
that would result from uncontrolled development of any such area or uncontrolled conduct of
such activity, and the advantages of development of such area or conduct of such activity in a
coordinated manner; and
WHEREAS, in compliance with the notice requirement set forth in C.R.S. Section 24-
65.1-404, notice stating the time and place of the public hearing and the place at which
materials relating to the matter to be designated and guidelines may be examined was
published in the Fort Collins Coloradoan on August 15, 2021; and
WHEREAS, such notice stated that City Council would conduct a public hearing on
September 21, 2021, to consider designating the following two activities as set forth in C.R.S.
Section 24-65.1-203,
(1) Site selection and construction of major new domestic water and sewage treatment
systems and major extension of existing domestic water and sewage treatment
systems; and
(2) Site selection of arterial highways and interchanges and collector highways;
and
WHEREAS, on September 21, 2021, City Council held a public hearing as part of its
regular meeting to consider the designation of the two noticed activities as matters of state
interest.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
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Section 2. That City Council, in consideration of the information provided for and
at the public hearing, hereby designates the site selection and construction of major new
domestic water and sewage treatment systems and major extension of existing domestic water
and sewage treatment systems, as the term domestic water and sewage treatment system is
defined in Sections C.R.S. Sections 24-65.1-104(5) and 25-9-102, and set forth in Exhibit “A”
attached hereto and incorporated herein, as an activity of state interest with the following
findings:
(1) Such designation is justified by the current and foreseeable development pressures
related to major new domestic water and sewage treatment systems and major
extension of existing domestic water and sewage treatment systems;
(2) Such designation shall apply to major new domestic water and sewage treatment
systems and major extension of existing domestic water and sewage treatment
systems located partially or entirely within the boundaries of the City;
(3) This activity is of state interest because the site selection and construction of
domestic water and sewage treatment systems occurs throughout Colorado and can
negatively impact the environment and wildlife resources, and the public health,
safety, and welfare of the communities where they are located. While this activity is
of state interest, it is ideally suited for local regulation in the communities where
such systems are located because of the local understanding of the unique local
conditions and needs;
(4) Uncontrolled development of major new domestic water and sewage treatment
systems and major extension of existing domestic water and sewage treatment
systems would cause adverse impacts within the City to the public health, safety,
and welfare, the environment and wildlife resources, and the City’s operations and
projects;
(5) The coordinated development and regulation of major new domestic water and
sewage treatment systems and major extension of existing domestic water and
sewage treatment systems would mitigate within the City the negative impacts on
the public health, safety, and welfare, the environment and wildlife resources, and
the City’s operations and projects, that would be caused by uncontrolled
development; and
(6) Such designation is in the best interests of the residents of Fort Collins.
Section 3. That City Council, in consideration of the information provided for and
at the public hearing, hereby designates the site selection of arterial highways and interchanges
and collector highways, as the terms arterial highway and collector highway are respectively
defined in C.R.S. Sections 24-65.1-104(3) and (4), and set forth in Exhibit “A”, as an activity
of state interest with the following findings:
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(1) Such designation is justified by the foreseeable development pressures related to the
site selection of arterial highways and interchanges and collector highways;
(2) Such designation shall apply to the site selection of arterial highways and
interchanges and collector highways located partially or entirely within the
boundaries of the City;
(3) This activity is of state interest because the site selection of arterial highways and
interchanges and collector highways occurs throughout Colorado and can negatively
impact the environment and wildlife resources and the public health, safety, and
welfare of the communities where they are located. While this activity is of state
interest, it is ideally suited for local regulation in the communities where such
highways and interchanges are located because of the local understanding of the
unique local conditions and needs;
(4) Uncontrolled development of the site selection of arterial highways and interchanges
and collector highways would cause significant adverse impacts within the City to
the public health, safety, and welfare, the environment and wildlife resources, and
the City’s operations and projects
(5) The coordinated development and regulation of the site selection of arterial
highways and interchanges and collector highways would mitigate the negative
impacts within the City to the public health, safety, and welfare, the environment or
wildlife resources, and the City’s operations and projects that would be caused by
uncontrolled development; and
(6) Such designation is in the best interests of the residents of Fort Collins.
Section 4. That with regards to the activities designated in Section 2 (“Water and
Sewer System Activity”) and Section 3 (“Highway Activity”) (collectively, the “Activities”),
no person shall conduct the Activities, as further defined below, unless otherwise specified in
this Section 4 until December 31, 2022, or until City Council has finally determined and
adopted guidelines for the administration of the Activities pursuant to C.R.S. Section 24-65.1-
101 et seq. This moratorium (“Moratorium”) on the conduct of the Activities is authorized
pursuant to C.R.S. Section 24-65.1-404(4) and the City’s power to impose a moratorium on
development activity pursuant to its home rule powers granted under Article XX of the
Colorado Constitution. The Moratorium shall go into effect on the effective date of this
Ordinance.
(1) Water and Sewer System Activity subject to the Moratorium shall be projects that:
(i) Meet the term domestic water and sewage treatment system as defined in C.R.S.
Section 24-65.1-104(5), and set forth in Exhibit “A”; and
(ii) Consist of pipelines designed for transmission of treated or untreated water or
sewage that are contained within new permanent easements greater than 30 feet,
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or within new permanent easements greater than 20 feet that are adjacent to
existing easements, or will use two or more parallel lines that are within 120 sq.
in. of each other when viewed in cross-section 12-inch diameter or larger or
designed for transmission of sewage that are 15-inch diameter or larger .
The Moratorium shall apply to projects regardless of whether they have completed
or are undergoing Site Plan Advisory Review pursuant to the Land Use Code, if
they meet the criteria set forth in (i) and (ii) above.
(2) The following projects are not subject to the Moratorium on Water and Sewer
System Activity:
(i) Any project (1) submitted and subject to review and approval under a
development review process other than Site Plan Advisory Review under the
Land Use Code, and (2) which project is necessary to physically deliver water by
a direct connection to any proposed residential, commercial, industrial, or mixed-
use development for which an application has been accepted by the City for Land
Use Code development review as of the first reading date of this Ordinance;
(ii) Any water or sewer project submitted and subject to review and approval as part
of a basic development review, minor or major amendment, project development
plan, or final plan for development other than a stand-alone water or sewer
project;
(iii)Projects to upgrade existing water and sewer facilities that are required
maintenance or otherwise required by federal, state or Larimer County
regulations, including repairing and/or replacing old or outdated equipment, or
installing new equipment, provided the improvements do not expand levels of
service beyond an increase to the next standard incremental pipeline size, and
provided further that the upgrade does not alter the location of the existing facility
beyond the existing easement or right-of-way; and
(iv) Any project that the City Council exempts from the Moratorium pursuant to
Section 5 of this Ordinance.
(3) Highway Activity subject to the Moratorium shall be projects that meet the terms
arterial highway and collector highway as such terms are respectively defined in
C.R.S. Sections 24-65.1-104(3) and (4), and set forth in Exhibit “A”, and
interchanges associated with arterial highways. The Moratorium shall apply to
projects that have completed or are undergoing Site Plan Advisory Review pursuant
to the Land Use Code and which meet the terms arterial highway and collector
highway.
(4) Any project that the City Council exempts from the Moratorium on Highway
Activity pursuant to Section 5 of this Ordinance is not subject to the Moratorium.
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(5) The Moratorium shall also apply to the following to the extent any of the following
are related to a project subject to the Moratorium:
(i) The City’s acceptance and processing of applications for Site Plan Advisory
Review pursuant to the Land Use Code for development that qualifies as one of
the Activities;
(ii) The acceptance and processing of applications or requests for City permits,
including flood plain and encroachment permits; and
(iii) The acceptance and processing of applications or requests to acquire City real
property or rights therein, including easements.
Section 5. That the City Council may exempt certain projects from the Moratorium
established in Section 4 pursuant to the following procedure:
(1) City Council may exempt projects subject to the Moratorium if it finds that the
applicant has established that granting of the exemption would not be detrimental to
the public good, and that:
(i) The project, if reviewed using the procedures specified in the Land Use Code
for a Site Plan Advisory Review, would not result in significant adverse impacts
that would be mitigated through a binding City review process; or
(ii) The project would meaningfully address, or assist in addressing, an important
community need specifically defined and described in City Plan or a City
Council adopted policy, ordinance, or resolution and delaying the project until
the moratorium is terminated would result in substantial hardship to the
community in realizing the benefit of the project in addressing, or assisting in
addressing, the community need.
(2) Any project that Council exempts from the Moratorium pursuant to this Section
must have its complete application accepted by the Community Development and
Neighborhood Services Department at least sixty days prior to the termination of
the Moratorium and such applications will be subject to the applicable Land Use
Code standards in effect at the time of acceptance. Applications accepted within the
period sixty days before the termination of the Moratorium or after the termination
of the Moratorium will be subject to the Land Use Code standards in effect at the
time of acceptance including 1041 regulations.
(3) Applications for Council exemption review pursuant to this Section must be
provided to the Director of Community Development and Neighborhood Services
(“Director”).
(i) Each application shall contain all information and materials that the Director
determines are necessary to allow City staff to review the project and make a
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recommendation to City Council and for City Council to make its determination
on the exemption.
(ii) The Director will charge a fee to recover the estimated staff time in processing
and reviewing the application to be paid upon submittal of the application.
(iii) City staff will review the application and provide a recommendation to City
Council.
(4) City Council will make its determination whether to grant an exception after
holding a quasi-judicial public hearing.
(i) The City Clerk will schedule the hearing for a date within sixty days of
receiving notice from the Director accepting a complete application for
exemption, unless Council acts by motion or resolution to extend the time for
that hearing.
(ii) Notice for the public hearing will occur pursuant to Land Use Code Section
2.2.6 using a minimum notice radius of 1000 feet.
(iii) The City Council decision to grant or deny an exception request must be
memorialized in an adopted ordinance.
(iv) Any exception granted by City Council under this Section 5 would not be
subject to later adopted 1041 regulations except as stated in Section 5 (2).
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Introduced, considered favorably on first reading, and ordered published this 21st day of
September, A.D. 2021, and to be presented for final passage on the 19th day of October, A.D.
2021.
__________________________________
Mayor
ATTEST:
__________________________
Interim City Clerk
Passed and adopted on final reading on the 19th day of October, A.D. 2021.
__________________________________
Mayor
ATTEST:
__________________________
Interim City Clerk
11041 RegulationsPaul Sizemore & Kelly SmithOctober 19, 2021
Project Background2May July September October2021ENGAGEMENT, ANALYSIS & OPTIONSWater/Sewer Providers30 CommunitiesPUBLIC HEARING &ENGAGEMENT Boards/CommissionsChamberCity UtilitiesWater/Sewer ProvidersMORATORIUM & ENGAGEMENTWater/Sewer ProvidersPFARESOLUTIONStudy 1041 Powers
Project Timeline3Public UtilitiesSolid Waste DisposalMass TransitAirportsOCTNOVDECJANFEBMARAPRMAYJUNJULYAUGSEPTOCTNOVDECHEARING/FUNDING APPROP/CONTRACTINGCODE DEVELOPMENTENGAGEMENTDRAFT CODECOUNCIL WORK SESSIONCODE ADOPTIONIMPLEMENTATION
Tonight’s Discussion4Designation OptionsMoratorium ApplicabilityExemption ProcessAdditional Engagement & Moratorium Impacts1234
Designation Options: Clarification51. A moratorium is only required at the time the City designates activities or areas of statewide interest.2. The City could designate activities or areas any time during the development of regulations. 1
Designation Options6OPTION 1: Designate Now• Highest certainty for City until regulations are adopted• Lowest certainty for water providers, developers, regional partners• Longest moratorium• Potential project delays at regional scale • Consistent with First Reading2021OctNovDecJanFebMarAprMayJunJulAugSepOctNovDecMoratorium Duration: 1 yearOPTION 2: Designate @ Draft• Known regulatory framework• Opportunity to further engage• Cuts moratorium in half• Allows projects to move forward for 6 mosMoratorium Duration: 6 monthsOPTION 3:Designate @ Adoption• No moratorium• Lowest certainty for City until regulations are adopted• Highest certainty for developers, water providers, regional partners 20212022
Moratorium Applicability: First Reading7Engagement & ImpactsWater/Sewer ProvidersCity UtilitiesApplies To:• SPAR Projects• >12” Pipe Size• Not Tied To Dev.• Not Maintenance/ Replacement2
Recommended Changes8Applies To:• SPAR Projects• >30’Easement• >20’Easement Adjacent to Existing • Not Tied To Dev.• Not Maintenance/ ReplacementEngagement & ImpactsWater/Sewer ProvidersCity Utilities
Recommended Changes9Applies To:• SPAR Projects• >30’Easement• >20’Easement Adjacent to Existing • Not Tied To Dev.• Not Maintenance/ Replacement(i) Projects to upgrade existing water andsewer facilities that are requiredmaintenance or otherwise required byfederal, state or Larimer Countyregulations, including repairing and/orreplacing old or outdated equipment, orinstalling new equipment,providedtheimprovementsdo not expand levels ofservicebeyond an increase to the nextstandardincremental pipeline size, andprovidedfurtherthat the upgrade doesnot alter the location of the existingfacility beyond the existing easement orright-of-way; and
Recommended Changes10Applies To:• SPAR Projects• >30’Easement• >20’Easement Adjacent to Existing • Not Tied To Dev.• Not Maintenance/ Replacement(iv) Any exception granted by City Council would not be subject to later adopted 1041 regulations….(1)City Council will make its determination whether to grantan exception after holding a quasi-judicial public hearing.
Conceptual Review MeetingConceptual Review ApplicationComplete Application SubmittedExemptionQuasi-Judicial Council HearingNo ExemptionExemption ProcessSPARStaff Meeting w/ Applicant3
Exemption Criteria121. The potential for the project to result in significant adverse impactsthat could otherwise be mitigated through a binding review process; or 2. The project meaningfully addresses an important community need and delaying the project until the moratorium is terminated would result in substantial hardship to the community.
Engagement & Moratorium Impacts13PROJECT UNKNOWNS KNOWNSNISP• Goal: break ground in 2023• 60’ easement• 32”-36” pipe• Crosses several City-owned Natural Areas and aquatic resources• Unknown construction timing and sequencing• Still waiting for ROD from Corps • Not started securing easements in FTC• Obtained 1041 Permit from Larimer County• Can secure easements on private property• 10 months to construct (in FTC)• Moratorium would prevent securing easements on City-owned land• Moratorium would prevent City-issued permits 4
Engagement & Moratorium Impacts14PROJECT UNKNOWNS KNOWNSNEWT 3• Goal: break ground in 2023• 50’ easement;• 42” dia pipe• Does not cross City-owned natural areas or aquatic resources in City limits• Still planning and designing• Impacts of Larimer County 1041 regs (in drafting)• Need Weld County approval• Need Larimer County 1041 permit • Need Corps approval• Need SHPO approval• Need easements• New City regulations may impact design• Uncertainty for development, school site planning, bond repayment schedules• Can work with the Corps on potential wetlands impacts (Boxelder Creek)• Can work on environmental, cultural/ historic resource documentation • Can secure easements on private property • Can develop detailed construction drawings • Will take 10 months to construct• Moratorium would prevent City-issued permits
Engagement & Moratorium Impacts15PROJECT UNKNOWNS KNOWNSREGIONAL PROJECTS• Uncertainty to water providers• May not have capacity to support development if NEWT 3 or NISP cannot be constructed• North Weld County Water District imposed moratorium on taps for new buildings
Designation Options16OPTION 1: Designate Now• Highest certainty for City until regulations are adopted• Lowest certainty for water providers, developers, regional partners• Longest moratorium• Potential project delays • Consistent with First Reading2021OctNovDecJanFebMarAprMayJunJulAugSepOctNovDecMoratorium Duration: 1 yearOPTION 2: Designate @ Draft• Known regulatory framework• Opportunity to further engage• Cuts moratorium in half• Allows projects to move forward for 6 mosMoratorium Duration: 6 monthsOPTION 3:Designate @ Adoption• No moratorium• Lowest certainty for City until regulations are adopted• Highest certainty for developers, water providers, regional partners 20212022
Excerpt
Land Conservation & Stewardship Board
Regular Meeting/Zoom Meeting
September 8, 2021
08/11/2021
1041 Regulations
Kelly Smith, City Senior Environmental Planner , provided an update on the 1041
process. City Council is interested in staff developing 1041 regulations. She provided a
high-level update on the regulations as well as the state statute and the pressure that
each community is finding for 1041 development. Kelly submitted three options for
adopting the regulations. A resolution was adopted for staff to continue researching if
1041 would meet regulatory goals and feasibility of staff to develop regulations. Through
a Work Session staff reached out to 30 communities to determine how these regulations
would work in the City of Fort Collins in general. Through the research staff determined
that 1041 would be a great tool, particularly for those large infrastructure projects
regulated under SPAR.
The 1041 regulations, the bill that was adopted that launched the jurisdiction, was
adopted in 1974. It’s rigid on what we can and can’t regulate so it’s been very difficult to
analyze the bill and see what regulatory authority we have. Essentially the bill identifies
and defines areas and activities of state interest that can be regulated. We can only
regulate within our jurisdiction, so before we can exercise these regulations, we must
designate them, but first hold a public hearing, which we will be held on September 21,
2021. Those areas of interest are mineral resource areas, natural hazard areas,
historical/natural/archeological resources areas and areas around key facilities such as
highways and airports. Kelly briefed the Board on three options for 1041 adoption, 1.)
immediate development pressures, 2), activities of greatest impact and 3.) all relevant
1041 authorities. Kelly also reviewed activities of state interest, outcomes, and a short
summary of public engagement. The next steps will be presentations before Boards
during the months of August and September. On September 21, 2021, there will be a
City Council public hearing to consider the options, secure consultant services and
discuss the need for a second public hearing.
Discussion: The Boards main concern is how to protect natural areas in the overall
1041 regulations. Kelly explained that areas of interest must be state designation. More
stringent regulations would be put in place than what is in place for the state. If the City
had adopted 1041 regulations, could the Board have weighed in on it? Kelly responded
at the Core there are environmental regulations. Natural Areas falls under the “areas of
interest”. Kelly explained that per the state statute we would have to better define natural
areas. At the core we would roll in robust environmental standards. Andrea referred to
NISP, isn’t the problem you can’t do regulation because it’s going through SPAR
process? Kelly agreed that the SPAR is limiting us on what we can do. With 1041
regulations we would have a larger authority and influence the location, have much more
influence over construction activities.
A unanimous decision was made by the Board to write a memo to City Council to support
Land Conservation & Stewardship Board
Regular Meeting
08/11/2021 Page 2
their opinion, Option 3. The Board agreed that development and project proposals arrive
with little notice, there are significant efficiencies in going through one 1041 process and
last, it is likely that a major transit project, Front Range Passenger Rail, will be funded
soon.
JOE PIESMAN MADE A MOTION TO SEND A MEMO TO CC EXPRESSING
SUPPORT FOR OPTION 3. MIKE WEBER SECONDED THE MOTION. THE MOTION
WAS UNANIMOUSLY APPROVED 7-0
MEMORANDUM
Land Conservation & Stewardship Board
Page 1
13 October 2021
To - Fort Collins City Council
From - Land Conservation and Stewardship Board (LCSB)
Subject - Adoption of 1041 Regulatory Powers for Protection of Natural Areas
The Land Conservation and Stewardship Board is urging City Council to support adoption of 1041
powers for four Activities of State Interest.
House Bill 74-1041 delegated regulatory authority to local governments for certain Areas of State
Interest and Activities of State Interest.1 These are:
Activities of State Interest:selection,
construction, and development of…
Areas of State Interest: places with…
1. water supply and treatment systems
2. highways
3. public transit infrastructure
4. utilities
5. waste disposal sites
6. airports
7. new communities
8. geothermal resources
1. historical resources
2. archaeological resources
3. natural resources
4. mineral resources
5. natural hazards
6. nearby major facilities
The first four Activities and the first three Areas are of relevance and concern for protecting Natural
Areas. However, other State laws provide significant protection for the Areas of State Interest, so our
focus is on Activities of State Interest.
Without stronger local regulatory authority, our Natural Areas are at risk. Large infrastructure
projects are anticipated in the next few years, and our protected open spaces (Running Deer,
Arapaho Bend, Riverbend Ponds, and more) will make attractive routes for Front Range Passenger
Rail, Highway 287 bypass, high-speed feeders to Interstate 25, and other potential projects. Our
Natural Areas along the Poudre River will be targets for new pipeline routes. We need strong local
permitting authorities to protect investments of $100’s of millions made by Fort Collins taxpayers for
their Natural Areas.
For forty-seven years, municipal and county governments across Colorado have implemented
regulatory authorities delegated to local governments under House Bill 74-1041.1 1041 authorities
move permitting from State government to local government, where community values and
perspectives guide regulatory decisions. Local authority is strong; governing boards of State
1 In 2017, the Colorado Department of Local Affairs studied the application of 1041 powers across the State. Its
report is available on the web at
https://drive.google.com/file/d/1DFWbEsiEIcsu08V7M82A9QuVDk5YtrG2/view?,authuser=0 .
MEMORANDUM
Land Conservation & Stewardship Board
Page 2
agencies and quasi-government agencies (Colorado Department of Transportation, or water and
sanitation districts, for example) cannot override local permitting decisions. When those decisions
have been litigated, Colorado courts have consistently upheld local 1041 authorities. The Colorado
Department of Local Affairs did an extensive review of 1041 in 2017 (see Footnote 1); information
above was taken from its report.
Larimer County has 1041 regulations, but those do not protect assets within our City Limits.
Therefore, it is the LCSB’s strong recommendation that the City adopt 1041 powers for the four
Activities of State Interest identified above.
October 14, 2021
Mayor Jeni Arndt
City of Fort Collins
City Hall West
300 Laporte Avenue
Fort Collins, Colorado 80521
Re: City of Fort Collins Consideration of Ordinance No. 122, 2021 Designation of Areas and
Activities of State Interest
Dear Mayor Arndt:
The City of Greeley offers the following comments in advance of the second reading by the Fort Collins
City Council of Ordinance No. 122, 2021 , scheduled for October 19, 2021. The
Ordinance would lay a foundation for enacting regulations under Colorado Revised Statutes Article 24-
65.1 Areas and Activities of State Interest, commonly referred to as 1041 Regulations. Of particular
concern to Greeley, the Ordinance would designate certain ater and Sewer System Activities as
activities of state interest and would require actions designated as such to follow yet-to-be-developed
1041 Regulations. More concerning, the Ordinance would place a moratorium on certain Water and
Sewer System Activities until December 31, 2022.
A major
Bellvue Water Treatment Plant northwest of Fort Collins before being conveyed to Greeley via three
water transmission lines that pass through Fort Collins. Greeley has been conveying our drinking water
through Fort Collins since 1907. Portions of pipelines are nearly 100 years old
and require regular maintenance, repair, and upsizing. Upsizing and repairs that require pipeline
realignments would almost certainly be considered Water and Sewer System Activities and trigger
compliance with the contemplated 1041 Regulations. The proposed moratorium and 1041 Regulations
and upgrades, and could place our
customers at risk of service disruptions.
Greeley is further concerned that the Ordinance would significantly delay and could ultimately prevent
nt by the East
Larimer County Water District
The NEWT 3 is many cities and towns in Northern
Colorado that form our collective regional economy. Further, North Weld serves a large number of
of the City. Delay of the NEWT 3 will harm existing and future Greeley residents.
By this letter, Greeley requests that City Council:
1. Delay the second reading of the Ordinance;
2. Permit NEWT 3 to proceed; and
3. Allow applicable stakeholders, including Greeley, to participate in the 1041 Regulation adoption
process.
Greeley and Fort Collins have a century-long partnership on water matters in Northern Colorado. We
value our strong alignment on many water issues, and while we understand the desire for greater local
control of certain projects, we urge you to consider the negative regional impacts of the Ordinance.
Sincerely,
Mayor John Gates
City of Greeley
Cc: Councilwoman Susan Gutowsky, Councilwoman Julie Pignataro, Councilwoman Tricia Canonico,
Councilwoman Shirley Peel, Councilman Kelly Ohlson, Councilwoman Emily Francis
Phone: (970) 224-3211 FAX: (970) 224-3217 www.timnathcolorado.org
4750 Signal Tree Drive, Timnath, CO 80547
Phone: (970) 224-3211 FAX: (970) 224-3217 www.timnath.org
4750 Signal Tree Drive, Timnath, CO 80547
WILLIAM P. ANKELE,JR.
JENNIFER GRUBER TANAKA
CLINT C. WALDRON
KRISTIN BOWERS TOMPKINS
ROBERT G.ROGERS
BLAIR M.DICKHONER
GEORGE M. ROWLEY
OF COUNSEL:
KRISTEN D. BEAR
K. SEAN ALLEN
TRISHA K. HARRIS
ZACHARY P. WHITE
HEATHER L.HARTUNG
MEGAN J.MURPHY
EVE M.G. VELASCO
LAURA S. HEINRICH
AUDREY G. JOHNSON
CAREY S. SMITH V
ERIN K. STUTZ
JON L.WAGNER
2154 E. Commons Ave., Ste. 2000 | Centennial, CO 80122 | P 303.858.1800 F 303.858.1801 | WhiteBearAnkele.com
October 14, 2021
VIA E-MAIL
Fort Collins City Council
c/o City Clerk
300 LaPorte Ave.
Fort Collins, CO 80521
cityclerk@fcgov.com
Re: Detrimental Impact of Ordinance 122, 2021
Dear City Councilmembers:
We represent the I-25/Prospect Interchange Metropolitan District (the “District”), and on
behalf of the District’s board of directors we are writing to request that you reconsider the
imposition of the moratorium contemplated in Ordinance 122, 2021 (the “Ordinance”). If adopted,
a City moratorium will result in the imposition of a corresponding moratorium on the approval of
additional water taps by the East Larimer County Water District (“ELCO”). A City moratorium
would also result in a freeze in ELCO’s completion of the third and final phase of the North ELCO
Water Transmission Line (the “NEWT Line”), which will serve the properties on all four of the
quadrants surrounding the I-25/Prospect Interchange.
The District was approved by the City and organized in 2018 to facilitate funding of the
redesign and upgrade of the Prospect/I-25 Interchange (the “Interchange Upgrade”), which had a
total estimated cost of $31 million dollars at the time. The Colorado Department of Transportation,
Larimer County, the City of Fort Collins (the “City”), the Town of Timnath, the owners of the
several properties adjacent to the Interchange (the “PITF”), and the District have all made binding
contractual commitments to contribute significant funding to support the construction of
Interchange Upgrade. The plan of financing the improvements needed for the Interchange Upgrade
was set forth in the Agenda Item Summary presented to City Council by City Staff for Agenda
Item 14 on the March 6, 2018 Agenda (the “AIS”), which is enclosed with this letter for your
reference.
As described in the AIS, the City and the District have entered into a Capital Pledge
Agreement, pursuant to which the City has borrowed funds to advance approximately $7.1 million
dollars on behalf of the District (the “District’s Share”), which the District has agreed to pay back
October 14, 2021
Page 2
to the City through a pledge of future revenues generated from the imposition of ad valorem
property taxes against the property owned by the PITF in the vicinity of the Interchange. This
arrangement was heavily negotiated for almost 18 months before the City, the District, and the
PITF approved its final terms, and all of the parties’ approvals, including the City’s, were based
on development assumptions that will be impossible to achieve if the City imposes the moratorium
contemplated in the Ordinance. Put plainly, without the NEWT Line and badly needed water tap
approvals, development opportunities in the vicinity of the Interchange cannot be advanced. And
without development in the vicinity of the Interchange, there will be no revenue to repay the City
for the money the City borrowed to advance the District’s share of the Interchange Upgrade Costs
on the timeline anticipated by the City when the City borrowed and advanced those funds. These
results would be harmful to the residents of Fort Collins, both because they will adversely impact
the City’s debt load, and also because they will restrict housing supply and contribute to upward
pressure on the City’s housing prices.
Several of the other participants in the Interchange Upgrade have also issued debt to finance
their contributions, and all of those contributions were made based on the assumption that there
will be significant revenue generated against future development in the vicinity of the Interchange.
The proposed moratorium will have detrimental impacts on all of these participants.
In light of the severe ramifications outlined above, on behalf of the District’s board of
directors we respectfully request that the Council amend the Ordinance to remove any and all
moratorium components as the City enters into the 1041 rule making process. To the extent that
the Council is not willing to set aside the moratorium altogether, we request that the City exempt
the NEWT Line from any moratorium imposed during the rule making process, and that the City
reengage to help move the NEWT Line swiftly thru the remainder of ELCO’s SPAR process.
Very Truly Yours,
WHITE BEAR ANKELE TANAKA & WALDRON
Robert G. Rogers
Shareholder
Attached 2018 AIS
1041 REGULATIONS ENGAGEMENT
Since the May 4, 2021 City Council discussion on 1041 Regulations, staff has personally reached out to
thirty-five local communities, different City Departments, regional water providers and local sanitation
districts to better understand lessons learned and concerns regarding 1041 regulations.
Peer Communities
Staff initially focused on peer communities with populations greater than 50K residents, however given
the limited number of municipalities that have adopted 1041 Regulations staff broadened its research to
include both smaller municipalities and counties. Below is a snapshot of information collected and key
lessons learned. Of particular note is the majority of municipalities that reported as having adopted 1041
Regulations in the 2015 Colorado Land Use Survey (presented on the Department of Local Affairs
website) have not adopted them.
Colorado Communities > 50K Residents
1041
Regulations
MUNICIPALITY Y N ACTIVITIES/AREAS
Arvada X
Aurora* X
Boulder X
Broomfield* - - Did not answer requests for information
Castle Rock - - Did not answer requests for information
Centennial X Location of Airports
Colorado Springs X
Commerce City X
Site selection and construction of highways, arterial highways and collector
highways;
Site Selection and Construction of Major New Domestic Water and Sewage
Treatment Systems and/or Major Extension of Existing Domestic Water and
Sewage Treatment Systems;
Site Selection and Construction of Major Facilities of a Public Utility;
Efficient Utilization of Municipal and Industrial Water Projects.
Denver* X
Grand Junction* X
Greeley* X
Highlands Ranch X
Lakewood X
Longmont X
Loveland X
Parker* X
Pueblo X
Efficient Utilization of Municipal and Industrial Water Projects;
Site Selection and Construction of Major New Domestic Water and Sewage
Treatment Systems and/or Major Extension of Existing Domestic Water and
Sewage Treatment Systems;
Site Selection and Construction of Major Facilities of a Public Utility.
Thornton* X
Westminster X
*Communities misrepresented as having adopted 1041 in DOLA’s 2015 Colorado Land Use Survey
Communities with 10K-50K Residents
1041
Regulations
MUNICIPALITY Y N ACTIVITIES/AREAS
Canon City* X
Durango* X
Frederick* X
Fruita* X
Golden X Site selection of arterial highways and interchanges;
Lafayette* X
Louisville X
Areas around key facilities (arterial highway interchanges);
Geologic hazard areas;
Site selection of arterial highways and interchanges;
Site selection of collector highways.
Steamboat* X
Superior X
Site selection and construction of highways, arterial highways and collector
highways
Mineral Resource Areas
Windsor* X
*Communities misrepresented as having adopted 1041 Regulations in the 2015 Colorado Land Use Survey
Communities Interviewed and Lessons Learned
Jurisdiction Key Notes
Boulder County
Adopted in early 1990s; little known about process taken to develop and adopt
Reviewed several applications:
o Electric transmission line
o Expansion of wastewater treatment plant
o Highway interchange
o Water pipeline
Has worked well however looking to update eventually to simplify criteria and potentially exempt
smaller projects
LaPlata County
Adopted in 2018 (one of the last counties to adopt 1041 in state)
Spent many years studying adopting regs (over 15 years), adopted a resolution 15 years ago to
develop regs but just never did it
11 months to draft and adopt
2 FTE (county attorneys) and support from Planning Dept; however required long hours from
attorneys
Hired legal assistance to review and develop regulations
Lifted regulations from Arapahoe County
Strongly recommend hiring outside consultant help and not doing in-house due to project complexity
Has not processed an application yet
Summit County
Developed in early 2000s
Hired outside consultant to develop regulations
Unsure the process taken to develop and adopt
Processed less than 10 applications
Worked well for environmental considerations
Larimer County
Adopted regs in early 2000s
Processed under 10 permits
Recommends being very intentional about what regulating as to not overprocess applications
In process of revising (5th revision)
o Imposed moratorium on projects until update is completed
o 6-7 months to revise code
o Trying to make criteria more specific so not open to interpretation
o May regulate more activities
o Hired outside consultant for revision
Anticipates a review of application fee structure next year for all development types
Project review through construction require a huge lift in staff time
Implementation will require several months to put in place different supporting programs
Pueblo County
Adopted in early 2000s
In response to water diversion project proposed by Colorado Springs Utilities
Placed moratorium on all projects that fall under certain activities while developing regulations
Regulated all activities as a precautionary tool
Attorney lifted regulations from Eagle County
No engagement
Took approximately 4-5 months to draft, then two months to adopt and implement
City of Pueblo
Adopted in early 2000s
Updated in 2014 using Pueblo County criteria
Same attorney at Pueblo County wrote updated Pueblo City regulations
Did not engage industry, public or other stakeholders
Attorney and Planning Director met internally and identified activities to regulate
Has NOT processed a permit application
Established criteria for administrative process for projects with Findings of No Significant Impact
(FONSI)
Processed 4 applications administratively through FONSI for a solar project on city-owned land leased
to solar company; very small-scaled project
Town of
Silverthorne
Adopted in early 2000s
Little known about process taken to develop and adopt
Has NOT processed an application
Commerce City
Adopted in early 2000s
Little known about process taken to develop and adopt
Processed two applications:
o Early 2007: Installation and location of a Tri-State Generation & Transmission Assoc.
electrical line through City and neighboring jurisdictions.
o 2020: Regional sewer interceptor planned by Metro Wastewater Reclamation
District.
In lieu of permit, negotiated an IGA for requirements
The IGA was found to be a great negotiating tool to allow project, avoid
time consuming process for applicant, and negotiate terms that benefited
community
Superior
Adopted in early 2000s
Little known about process taken to develop and adopt
Has NOT processed an application
OTHER ENGAGEMENT
City Utilities, City Engineering, Water Providers, Sanitation Districts Comments and Concerns
Agency/Group Key Notes
City Utilities
Concern that regulations will result in self-regulating City projects
Capital Projects already approved by City Council during the budget process so don’t need another
approval process
Definitely need to better understand how permit process may impact scheduled projects that have
been planned for several years
Already have project coordination process in place for projects in ROW; hate to duplicate a utility
coordination process. One of the first things done when a project comes in is send out to engineering
for coordination
Sometimes not value add for planners to review projects that are technical and complex; hard to
bring people up to speed
Would like to see very clear regulations so understand requirements, nothing vague
City Engineering
Concern regulating might compromise relationship with CDOT for future funding initiatives
Could focus on interchanges, and locations of Park and Rides, transit facility on 287
Closure to access routes during I-25 expansion and other projects would have been good to have
more authority over
ELCO, NFR
Water District,
Boxelder
Sanitation
District, FCLWD,
South FTC
Sanitation
Often projects require state and federal permits so 1041 permit is duplicative
1041 is a pretty onerous process to go through and add a lot of cost to projects from project delays
and permitting requirements
Often criteria is so vague that it can be difficult to understand requirements, can be interpreted
differently by decision-makers to fit political agendas, and prolong process because have no idea how
to fulfill requirements
Need technical requirements to measure criteria against for decision making
Important to include an appeals process so that don’t have to go through process if impacts are
minimal
Concern regulations will prohibit regional projects from being approved that provide regional needs
Engagement will require significant lead time so boards have the chance to review draft regulations
and staff perform several job functions; (2-3 months for review and comment preferable)
Would like projects currently planned be approved through SPAR process and not have to wait until
1041 regs are developed