HomeMy WebLinkAboutMemo - Mail Packet - 5/16/2023 - Memorandum From Kirk Longstein Re: Staff Response To Comments Submitted By The Land Conservation Stewardship Board January 11, 2023, Regarding 1041 RegulationsPlanning, Development & Transportation Services
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MEMORANDUM
DATE: May 10, 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: Staff response to comments submitted by the Land Conservation Stewardship
Board January 11, 2023 Regarding 1041 Regulations
The purpose of this memo is to provide a response to comments submitted by the Land
Conservation Stewardship Board (LCSB), January 11, 2023.
LCSB Recommendations:
1. The LCSB shares concerns that the reduction in geographic scope from a city-
wide application, inclusive of both city-owned property and property owned by
private residents, to a substantially reduced scope is disappointing and fails to
comply with original Ordinance, No. 122, 2021.
Staff understand this concern to be in response to section 6.6.5 Applicability of
Standards, and the Director’s ability to issue a Finding of No Significant Impact (FONSI).
These initial steps prior to a full permitting process intend to incentivize applicants to
propose a development plan that avoids adverse impacts before entering a full permit
review. Planning staff have worked with both the City Attorney’s Office as well as outside
legal Counsel to draft code that reduces the administrative burden on projects that can
demonstrate that they have avoided impacts to cultural and environmental resources.
Additionally, an administrative Applicability of Standards – FONSI is a common
approach in most other jurisdictions with 1041 regulations.
2. The LCSB recommends that FONSI is an established evaluation standard and
should be defined.
Based on Stakeholder feedback, including this feedback from LCSB, Planning Staff
agree and presented the Council with the staff recommendation on first reading to
amend the code to add definitions that redefine the Applicability of Standards
determination (FONAI to FONSI) i. Impact ii. Cumulative impacts iii. Significant iv.
Finding of No Significant Impact (FONSI). During the First reading adoption on May 2,
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Councilmembers adopted a motion (7-0) to amend the code to accept this staff
recommendation.
3. The LCSB recommends that the Council expand the covered 1041 Activities to
include Mineral Resource Areas.
Adding an Area of State Interest (as suggested) must go through a separate Designation
& Moratorium process with the City Council (C.R.S. 24-65.1-404). As approved on first
reading, the Code’s Section 6.2 (Procedure for Designation of Matters of State Interest)
lays out the administrative process to designate additional Activities or Areas of State
Interest after adoption if the council chooses. The 1041 regulations cannot include
additional Activities or Areas of State Interest until designated through such a process –
which would require additional stakeholder engagement, staff analysis, and another
moratorium. At minimum state law requires 30-day notice prior to a hearing of any
additional designation which would mean a separate hearing and designation process
would need to be initiated. For this reason, if Council desires to expand 1041 regulations
to include Areas of State Interest, staff recommends completing the current regulations
then holding a work session to discuss an additional, separate work stream.
4. LCSB recommends that an ecologically-sound Natural Resources Buffer Standard
be developed that would protect Natural Areas from on- and off-site impacts and
require complete remediation should such impacts occur despite the existence of
these regulations.
Environmental planning staff currently utilize a natural habitat inventory map which
identifies features protected by Land Use Code Section 3.4.1. Updating the buffer
standards highlighted by LUC 3.4.1 is an identified policy project for phase II updates to
the Land Use Code. With adoption of the 1041 regulations, staff is requesting $80,000
in supplemental appropriations to generate customer tools which support a natural
resources inventory and GIS analysis to update these critical natural habitat resources
outside of designated natural areas. These tools will establish a clear expectation for the
applicant and the city’s third-party consultant to meet the code requirements and enable
staff to continue to protect resources highlighted by the LCSB.
5. LCSB recommends that the city should conduct a robust outreach process and
include responses to any concerns collected in the Neighborhood Meeting and
public comment process as a distinct criterion for the initial FONSI or FONAI
determination.
Staff do not recommend a criterion for the Director to issue a FONSI based on public
comments. The public comment period does, however, allow the applicant to modify
application materials based on comments received prior to the Director’s final decision.
The Code also allows for continued public involvement beyond the Director's FONSI
determination, by allowing any person to file an appeal to the planning and zoning
commission of the Director’s finding that a proposed development plan would cause no
significant impact and would not require a permit pursuant to Article 6.
6. LCSB recommends that guidelines and expectations regarding Financial Security
be codified in policy.
In addition to any conditions directed by Council, before any development occurs
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pursuant to an approved permit the applicant must provide the City with a guarantee of
financial security, as outlined by 6.10.1 of the Code as adopted on first reading. The
purpose of the financial guarantee is to ensure that the permittee shall faithfully perform
all requirements of the permit. The estimated cost of returning the site of the permitted
development plan to its original condition or to a condition acceptable in accordance with
mitigation standards defined in the Code’s common review standards (as adopted on
first reading).
7. LCSB recommends that all projects that impact Natural Areas require full review
regardless of project thresholds, including modifications and enlargements.
The Code adopted by Council on first reading with amendments on May 2, 2023
includes Section 6.1.5 (C) Stay on Issuance of Easements and Others permits.
No easements on City-owned real property and no permits issued by the City other than
under these Regulations, including but not limited to flood plain and right-of-way
encroachment permits, shall be granted for any development plan subject to these
Regulations without such development plan having first obtained a permit pursuant to
these Regulations or as may otherwise allowed under these Regulations.
With this Code provision, a1041 permit will be processed first and proposed to Council
with conditions of approval that a NAD easement be approved (at a later date) through a
separate approval process. The Council has more discretion in the approval of
proposed easement agreements, and this will in any case be a separate decision.
CC: Julia Feder, Environmental Program Manager, Natural Areas Department
Katie Donahue, Director, Natural Areas Department
Brad Yatabe, Senior Assistant City Attorney
Carrie Daggett, City Attorney
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