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Home My WebLink AboutMemo - Mail Packet - 4/18/2023 - Memorandum From Kirk Longstein Re: 1041 Regulation Decision PointsPlanning, 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 Page | 1 1041 Regulation Decision Points MEMORANDUM DATE: April 13, 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 Clay Frickey, Interim Planning Manager FROM: Kirk Longstein, Senior Environmental Planner RE: 1041 Regulation Decision Points The purpose of this memo is to provide a summary of feedback and suggest a process for revising the draft 1041 regulations to address public comments. Based on continued conversations with environmental groups and water providers, staff has outlined five decision points for the Council’s consideration during first reading on May 2, 2023. Bottom Line: As directed by the Council at their February 7, 2023 meeting, staff continued discussions with environmental groups and water utility providers on draft 1041 regulations. Re-engagement included policy questions and discussion that surfaced trade-offs for Council’s consideration (see attached Re-Engagement Summary). In response to these stakeholder discussions, staff suggests the Council consider the following five decision points at first reading on May 2, 2023. Staff will provide further trade-off analysis and potential amendments for Council to consider in the Agenda Item Summary. Decision Point 1 – Update Definitions  Update the definition of designated activities to exclude public right-away and replace pipe-size diameter with easement width.  Redefine the term Finding of Negligible Adverse Impact (FONAI) to a Finding of No Significant Impact (FONSI). Decision Point 2 – Update Application Procedures  Add a process to allow a “limited scope resubmittal” after a final denial decision.  Remove requirements that conceptual design be drafted at thirty-percent completeness.  Move neighborhood meeting requirements to after review of the applicability of standards (i.e., FONAI determination), and extend comment period during the pre- application activity review. DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D Page | 2 1041 Regulation Decision Points Decision Point 3 – Update Review Standards to account for construction activities outside the jurisdiction.  Add a common review standard that analyzes activities causing an adverse impact on Fort Collins property regardless of where the construction takes place. Decision Point 4 - Consider Intergovernmental Agreement (IGA)  Establish an IGA with each individual water provider rather than adopt 1041 regulations. Decision Point 5 – Permit administration  Supplemental appropriations to manage permit applications with third-party contractors during the first year of implementation and evaluate the need to add FTE staff in subsequent Budgeting for Outcomes (BFO) cycles. Background As directed by Council, staff has sought balanced input from engaged community partners, including CDOT, water utility providers and environmental groups on 1041 regulations for major domestic water, sewage treatment and highway projects. Generally, these types of projects are reviewed through the Site Plan Advisory Review (SPAR), and by adopting the 1041 powers, the city will leverage a regulatory framework to review projects as opposed to the SPAR advisory process, which is non-binding. Following Council feedback, regulatory goals have included defining a process that is (1) contextually appropriate to Fort Collins, (2) addresses deficiencies within the SPAR process, (3) provides predictability for developers and decision makers, (4) establishes a meaningful public process, and (5) incentivize project siting and design that avoid impacts to critical natural habitat, cultural resources, and disproportionately impacted communities. Re-engagement summary and stakeholder feedback since February 7, 2023: The 1041 regulations were released to the public on January 20, 2023, and incorporated changes based on public feedback themes discussed between November 2022 and January 2023. Following the November 2022 work session, public engagement tactics focused on working group meetings where policy issues were discussed but very few public comments regarding specific ordinance language was collected. Given the lack of access to actual code language ahead of the February 7, 2023 Council meeting, stakeholders expressed distrust in the process and requested more time to review. Based on the Planning and Zoning Commission’s recommendation to allow more time for the public to deliberate, Council adopted a motion to extend the moratorium to June 30 and reschedule the first reading of 1041 regulations to May 2, 2023, and until stakeholders have an opportunity to understand the Code’s full impact. Based on Council direction, staff prepared re-engagement questions, met with stakeholders, and consolidated feedback in the attachment re-engagement summary. DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D Planning, 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 Page | 3 1041 Regulation Decision Points ATTACHMENT: RE-ENGAGEMENT SUMMARY Council Decision Point Policy Question Yes No Other Comments Decision Point #1 Do project-size thresholds and exemptions for work within existing ROW reflect the intent to regulate "major" projects? Water Providers recommend if a water pipeline project is or will be located in an existing or City planned future ROW it should be exempt. Re: size thresholds, any water pipeline project greater than 1 mile in length and greater than 24 inches in diameter (industry standard diameter designation) located outside a public ROW. Environmental Groups shared the intent of the regulations is to minimize impact yet size by itself is not as sufficient criteria for impact (small projects could have significant DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D Page | 4 1041 Regulation Decision Points impacts and large projects could have negligible impacts) Decision Point #1 Should work within existing easements that cross City Natural Areas be excluded? Water Providers agree that work within existing easements should be excluded from 1041, whether within natural areas and parks or not. The City’s existing Natural Areas easement policy should be respected. Environmental Groups were divided on this topic. DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D Page | 5 1041 Regulation Decision Points Decision Point # 1 and # 2 Should the code exclude an applicability of standards review (i.e., FONAI determination)? Water Providers are in favor of retaining FONAI determination and an applicability of standards review. Water Providers are concerned that the effort and timeline required for alternatives analysis, 30% design requirement, ecological characterization, conceptual mitigation plans, cumulative impact analysis, and neighborhood meeting before a project can even be considered for a FONAI is onerous. Water Providers further prefer a FONSI because it is already a recognized standard. Negligible Adverse Impact (FONAI) is more subjective. Environmental Groups recommend regardless of FONAI or FONSI, neighborhood meetings should be required, and should be held before a determination. Most suggest that FONSI is a well-used term when it comes to Environmental Assessments and Environmental Impact Statements (and likely to have been tested previously in court). DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D Page | 6 1041 Regulation Decision Points Decision Point # 2 Should the Code allow Council to deny a permit with conditions for re-submittal? Water Providers strongly support. Providers think they should be able to know why the permit is being denied and return back to a hearing if the applicant can make the change. There are benefits for both City and applicant to clearly define the expectations and streamline the process. Existing Code Section LUC 2.1.6 Optional Pre-application Review and a 6-month post denial re-submittal delay outlined by LUC 2.2.11(e)(9) were also supported by Water providers as a solution to this question. If adopted Environmental Groups recommend there should be specific criteria for resubmittals and how many times resubmittals are allowed. Decision Point # 3 Should the code regulate any activity that causes an adverse impact on Fort Collins property regardless of where the construction takes place? Environmental Groups advocate for broadening the scope of the regulations to capture as much as is legally permissible and assert that Colorado Law allows this broader approach. Water Providers disagree that the regulations should reach beyond the city boundaries and assert that the law does not grant jurisdictional authority beyond municipal limits. Water providers argue this could create a precedent where other municipalities impose themselves upon projects within the city’s limits. DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D Page | 7 1041 Regulation Decision Points Decision Point # 4 Should Council consider an IGA in lieu of 1041 regulations? This question was not discussed with environmental groups; however, some Water Providers have requested (after groups convened) that the City Council consider abandoning the pursuit of 1041 regulations by withdrawing Ordinance No. 122, 2021, and replace Resolution 2021-055 with a revised resolution directing the City Manager to pursue intergovernmental agreements (IGAs) with Northern Water and ALL other water and sanitation districts operating within the Fort Collins GMA. Decision Point # 5 Should the Code include the use of third-party contractors to support staff administration of permit applications? Environmental Groups support third- party contractors provided they are solely supporting the City, are not biased, and their payments are transparent. Water Providers do not support outsourcing this important task due to cost control risks, difficulty in assessing ultimate costs, extended timelines. Some Water Providers favor supplemental appropriation for staff to administer 1041 permit applications, suggesting In-house staff would be more efficient and consistent. DocuSign Envelope ID: B64291AE-D385-4B2A-AA8C-B3B4AF4E360D