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HomeMy WebLinkAboutMemo - Mail Packet - 1/24/2023 - 9 - Memorandum From Kirk Longstein Re: 1041 Regulations – Project UpdatePlanning, Development & Transportation Services Community Development & Neighborhood Services 281 North College Avenue P.O. Box 580 Fort Collins, CO 80522.0580 970.416.2740 970.224.6134- fax fcgov.com MEMORANDUM DATE: January 19, 2023 TO: Mayor and City Council THRU: Kelly DiMartino, City Manager Tyler Marr, Deputy City Manager Caryn Champine, Director of Planning, Development and Transportation Paul Sizemore, Community Development and Neighborhood Services Director Rebecca Everette, Planning Manager FROM: Kirk Longstein, Senior Environmental Planner RE: 1041 Regulations – Project Update Bottom Line: This memo provides an update on community engagement as directed by City Council during the November 7 work session discussion of 1041 Regulations. Since receiving feedback from various stakeholder groups, staff is preparing a version-three of the 1041 regulations to address stakeholder feedback received since version-two was released. Version-three will be presented at the Planning and Zoning Commission January 25 hearing and for Council’s consideration at the February 7 regular meeting. Background During the November 7 City Council work session, several Councilmembers recognized staff’s progress towards a balanced approach focusing on the most sensitive natural and historic resource impacts. Council expressed general support for the version-two draft , which included geographic thresholds, and sought additional options for consideration. Based on Council’s direction, staff sought additional feedback from stakeholders and received input on how to improve version-two of the proposed 1041 regulations; including a restructuring of the code to focus on both geographic thresholds and size-based thresholds, including pipe diameter and easement size. Staff recommendations for updates to the 1041 regulations: During the November 7 Council work session, staff introduced two separate copies of the draft 1041 regulations for Council’s discussion. The scope of these regulations included definitions of designated activities which included geographic-based thresholds and a version without geographic-based thresholds. This created confusion for community members seeking to DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54 2 provide public comments, so staff has consolidated the code into a single version-three for Council consideration on first reading. Version-three of the draft regulations brings forward the intent of geographic-based thresholds while also increasing predictability by clarifying the definitions of covered projects. Revisions within version-three follow feedback themes provided by working groups convened December 2022 and January 2023 (see attachment). As proposed within the version-two draft, a 1041 permit would be required for projects that are included in one of the geographic-based thresholds proposed and have adverse impacts. Based on Council and community feedback, version-three of the draft regulations defines project-size thresholds and provides more prescriptive language related to submittal documents and pre-application procedures. Version- three relocates geographic based thresholds from the “definitions” section to the applicability of standards criteria for the Director’s Decision of a Finding of Negligible Adverse Impacts (FONAI) determination (see image below). By comparison, the version-three draft of the regulations limits the scope of the regulations by project size thresholds (e.g., pipe diameter, pipe length, and easement size), which is similar to Larimer County regulations. The 30-foot easement size in combination with 1,320 linear feet roughly equates to just under one (1) acre of impact area, which is used as a threshold for state agency and neighboring jurisdictions. One acre of impact area is roughly equivalent to four (4) lots within the old town neighborhoods. Version-two includes activities as previously designated but is limited to a narrower geographic scope, slightly modified from the scope of the moratorium, as follows: 1. Projects otherwise within the scope of the regulations that either: a. Are located on (or cross through) an existing or planned future City natural area or park, whether developed or undeveloped; or b. Are located on (or cross through) City building sites or other non-right-of-way property owned by the City, whether developed or undeveloped. c. Are located within an existing or potential future buffer zone of a natural habitat or feature, as defined in the Land Use Code; or d. Have potential to adversely impact historic resources. Version-three includes activities as previously designated and defines project-size thresholds for domestic water and wastewater infrastructure projects. Version-three continues to provide more detail for staff review and provides greater predictability by removing ambiguous interpretation and defining submittal requirements. As proposed, version-three keeps the high priority geographic areas, but shifts that analysis into the pre-submittal review and FONAI determination. Domestic water and wastewater projects covered by version-three include projects that: (1) Distribution and transmission lines with pipes greater than 12” (15” for sewage) in diameter and 1,320 linear feet in the aggregate for the proposed development plan; or (2) Will require a new permanent easement of 30-feet or greater in width and 1,320 linear feet in length in the aggregate for the proposed development plan. Version-three excludes major extensions of an existing domestic water or sewage treatment with the following definitions: (3) Any maintenance, repair, adjustment. DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54 3 (4) Existing pipeline or the relocation, or enlargement of an existing pipeline within the same easement or Right-of-Way; (5) Expanding any existing easement to a total width of 30-feet or less and for a distance of 1,320 linear feet or less; or (6) Any facility or pump station (or lift station for sewage treatment) that does not increase the rated capacity from the Colorado Department of Public Health and Environment. Version-Three 1041 Regulations - Permitting Process Additional options for Council’s consideration Since the November 7 work session, engaged stakeholders from both the environmental community and potential permit applicants continue to provide redline edits and suggested policy direction for Council’s consideration. The following options have not been included in the version-three staff recommendation, but may warrant additional Council consideration during first reading:  Environmental stakeholders have suggested that the regulations do not account for construction activities outside the jurisdiction that have an adverse impact on resources within the jurisdiction? Staff has not included a common review standard within version-three of the 1041 regulations to review portions of a project outside the city limits. When reviewing a potential 1041 permit, and as a part of the common review standards, staff may identify natural features that are being adversely impacted within the city limits (not outside the •Project size thresholds (Definitions) •Conceptual Review •Pre-submittal meeting •Neighborhood meeting •Director Decision (FONAI -evaluation critera inlcuding geograhic based thresholds) Applicability of Standards •Application checklist •Completness Check •Third-Pary analysis •Common Review Standards Full Permit Review •Planning and Zoning Commissions (Hearing) •City Council (Hearing) •Issuance of a permit; conditions Permit Decision Making DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54 4 city) and seek to understand portions of the project (outside the city) that are causing such adverse impacts. However, there is not a clear understanding how mitigation plans could account for such impacts.  Recommendations from type 1 and 2 advisory boards and commissions are not a required step in the process. Council-appointed type 1 and type 2 advisory boards may provide comments at the discretion of the Director. These boards make recommendations to City Council and City staff on areas of particular knowledge or expertise. Recommendations made by advisory boards are formal opinions on items and subjects that are within the boards' purview. These recommendations are limited to advisement and are not decisive actions. Stakeholders have suggested a 1041 specific advisory board. Next Steps:  January 20, 2023 - Public Release of the version-three 1041 regulations  January 25, 2023 - Planning and Zoning Commission Hearing  February 7, 2023 – City Council First Reading of 1041 regulations  February 21, 2023 – City Council Second Reading of 1041 regulations  March 31, 2023 – Expiration of the extended Moratorium ATTACHMENT:  Phase III (December 2022 – January 2023) Public Engagement Summary CC:  Carrie Daggett, City Attorney  Brad Yatabe, Senior Assistant City Attorney DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54 5 ATTACHMENT - Phase III (December 2022 – January 2023) Public Engagement Summary Since the November 7, 2022 City Council work session, staff sought input from engaged community partners; including utility providers and environmental advocacy groups on 1041 regulations for water and highway projects that continue to meet the following regulatory goals (1) contextually appropriate to Fort Collins, (2) provide predictability for developers and decision makers, and (3) provide adequate guidance for staff review and implementation of permits. Staff has provided the notes and written comments from working group members as an attachment to this memo. Stakeholder Outreach Activities:  Staff convened four 90-minute working groups representing regional economic, and environmental interest, as well as representation from City Boards and Commissions, local water provider, and regional CDOT representatives. Notes from these group conversations are provided as an attachment to the memo.  Staff meet 1:1 with interested groups to discuss redline edits to version-two of the draft regulations and provide general feedback on policy direction. 1:1 meeting in November through January 2023 include: o Save the Poudre o Sierra Club o Fort Collins Sustainability Group o American Whitewater o League of Women Voter o Boxelder Sanitation o Northern Water o East Larimer County Water District o City Board and Commission members o Fort Collins Utilities o Fort Collins-Loveland Water District o Trout Raley  Staff met with the following City Boards and Commissions o Air Quality Advisory Board o Transportation Board o Natural Resources Advisory Board o Land Conservation and Stewardship Board o Water Commission o Planning and Zoning Commission  Staff plan a public open house at Fort Fun along Mulberry Ave. January 19 at 4pm o Spanish materials were presented, and a survey provided. A summary of the feedback themes received from Disproportionately impacted community members will be provided in Council’s February 7 packet. During phase III outreach activities, the engaged stakeholders were invited to participate through working groups and one-on-one meetings with City staff. Throughout the engagement process key questions included: 1. Do you have feedback on the proposed scope to focus on the greatest areas of impacts rather than major projects? Geographic Thresholds: DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54 6 • Parks, natural areas, and other city-owned properties • Natural habitat buffer zones • Historic and cultural resources 2. Councilmembers asked Staff to explore adding the definition of “Natural Resources”. 1. After Geographic thresholds are applied, what additional areas are not covered? 2. What review standards should staff consider adding related to “Natural Resources”? 3. General feedback and areas of concern within version-two of the draft 1041 regulations The following table summarizes general feedback from public comments, and working group meetings since the November 7, 2022 City Council work session: Version-Two Regulations Feedback Themes Timeline to review before adoption of the regulations  Concern about amount of time to review version-three of the draft regulations  Question about the urgency and the problem that the city is trying to solve  Support for 1041 regulations as a long overdue policy discussion Geographic Based Thresholds  Geographic Based Thresholds do not account for disproportionately impacted communities (DIC).  Without project size thresholds applicability, for projects casts too wide a net and will capture too many projects.  General support to move geographic based thresholds into review standards as opposed to definitions. FONAI Determination  General support for FONAI review by Director  Neighborhood meeting should be required prior to FONAI determination  More prescriptive language related to pre-application submittal requirements  Bar to achieve a FONAI is too high Definitions of Development  Concern for projects within existing rights-of-way and easements. Especially when Stormwater is not covered by regulations and has a similar impact.  Concerns that any maintenance, repair, adjustment are covered  City Projects should be exempt if they have already been approved through the Budgeting for Outcomes (BFO) process. Staff has further detailed comments from working group members related to the version-two draft regulations in the table below and how staff has addressed stakeholder comments in version-three of the regulations ahead of Council first reading. Detailed notes from working groups are provided as an attachment to this memo. DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54 7 Version-Two Feedback How has Staff Addressed Feedback within Version-three of the 1041 regulations? Suggest looking at specific scope and size thresholds instead of geographic limitations (i.e. pipe sizes and whether it’s new or a replacement). Staff has updated the definitions to include project size thresholds similar to Larimer County regulations. Previously proposed geographic based thresholds have been incorporated into the common review standards. The bar is too high for achieving a FONAI and its likely that all projects will be reviewed through a full permit The Director’s decision includes a consideration for mitigation which incentivized the applicant to avoid natural features or mitigate for the potential disturbance. Concerns that regardless of the analysis by staff, public comments and recommendations by third-parties, Council may make their decision without weighing all the facts. Staff has provided a development plan review process that incentives applicants to work with staff to reach a recommendation for approval. There is also an optional preapplication hearing with Council to seek specific direction early in the review. Not enough time to review version-three regulations Staff has provided version-three of the draft regulations within the Planning and Zoning Commission material ahead of the Council materials Review pass-through fees, permit fees, inspection fees so that there isn’t “triple dipping” or overlap between fees for topic experts. Staff is proposing to administer the full 1041 permit review process through a third-party contract until we can have better data to propose a new permit fee. With the information available to staff through a recent request for information (RFI), staff plan to issue a request for proposal (RFP) shortly after the adoption of the code for an on-call contractor servicing third party permit review of all phases of the 1041 permit review; including conceptual, FONAI, and full permit review. Remove subjectivity from the application review process by providing more details to the submittal requirements and processing procedures. Staff has added additional definition to the submittal documents required at pre-application and FONAI review; including details for an initial cumulative impacts review. Concerns about the definition of development including work within ROW Staff has updated definitions to exclude any maintenance, repair, adjustment; and excludes existing pipeline or the relocation, replacement, or enlargement of an existing pipeline within the same easement or right-of-way. The consultant’s responsibilities should be clearly defined when reviewing a full permit. As a part of the FONAI determination, Staff will provide details related to additional study needed. Scope of work and submittal documents will be provided through an application checklist. Staff should consider adding the definition of Natural Resources. C.R.S 24-65.1-104. includes a definition for “natural resources” and so staff do not recommend adding a new definition that might create confusion. In this way, staff recommend using the existing definition for “natural feature” already being used within the LUC. also, staff suggest adding geographic areas identified by Colorado Parks and Wildlife and City Natural Area for its high priority habitat. Financial Security Language is too weak In addition to the financial security language, City Council may approve a permit with conditions of approval. Regulations do not account for construction activities outside the jurisdiction that have an adverse impact on City-owned assets within the jurisdiction. Staff recommend common review standards that review adverse impacts and mitigation within the City’s jurisdiction. Staff do not recommend prescribing mitigation measures outside of city limits. DocuSign Envelope ID: 288988F3-21AD-43DA-8F13-C20B60E51D54