HomeMy WebLinkAboutMemo - Mail Packet - 2/28/2023 - 09 - Response From Brad Yatabe To Mayor’S Questions From February 7, 2023 City Council Meeting Concerning 1041 Regulations
City Attorney’s Office
300 Laporte Avenue
PO Box 580
Fort Collins, CO 80522
970.221.6520
970.221.6327
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MEMORANDUM
TO: Mayor and City Councilmembers
FROM: Brad Yatabe, Senior Assistant City Attorney
THRU: Carrie Daggett, City Attorney
DATE: February 23, 2023
RE: Response to Mayor’s Questions Concerning 1041 Regulations
During Council’s discussion of proposed 1041 regulations at the February 7 City Council
meeting, Mayor Arndt asked several questions regarding the potential scope of 1041
regulations and specifically whether there is precedent for exercising 1041 authority outside
the regulating jurisdiction’s boundaries. The Mayor asked us to provide a more concise
response to that question than was provided at the Council meeting.
The Mayor’s question can be broken into two parts with differing answers:
1. Whether there is precedent under 1041 authority for regulating the impacts within the
City’s boundaries coming from a project that is located outside the City; and
2. Whether there is precedent under 1041 authority for regulating a project located
outside the City not based upon the impacts caused within the City.
To respond to the first scenario:
There is no direct precedent for this approach. The 1041 statute allows
designation of areas for protection through regulations, or designation of activities to
be regulated. There is precedent for requiring a permit for impacts coming into an
area designated for regulation under 1041. However, the City is proposing to
regulate designated activities and we understand there is no precedent for this in
that context.
To respond to the second scenario:
There is no precedent for such regulation.
Please note that whether or not there is identified precedent, there may be legal arguments
and approaches not provided here.
pc: Kelly DiMartino, City Manager
Paul Sizemore, Deputy Director PDT
Kirk Longstein, Senior Environmental Planner