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HomeMy WebLinkAboutMinutes - Read Before Packet - 9/5/2023 - Memorandum From Clay Frickey Re: Draft Planning & Zoning Commission Meeting Minutes For Water Adequacy – Council Agenda Item #21 - September 5, 2023 Planning, Development & Transportation 281 N. College Ave PO Box 580 Fort Collins, CO 80522 www.fcgov.com MEMORANDUM DATE: September 1, 2023 TO: Mayor and City Councilmembers THRU: Kelly DiMartino, City Manager Tyler Marr, Deputy City Manager Caryn Champine, Director, Planning, Development & Transportation Paul Sizemore, Director, Community Development & Neighborhood Services Brad Yatabe, Senior Assistant City Attorney Eric Potyondy, Assistant City Attorney II FROM: Clay Frickey, Interim Planning Manager RE: Draft Planning & Zoning Commission Meeting Minutes for Water Adequacy – Council Agenda Item #21 - September 5, 2023 At the time of agenda publication, the draft meeting minutes for the August Planning & Zoning Commission meeting had not yet been completed for the Water Adequacy item. Attached are the draft meeting minutes for the August Planning & Zoning Commission hearing. Attachment: Draft August 17, 2023 Planning & Zoning Commission Meeting Minutes DocuSign Envelope ID: E780729C-74E8-41AA-A3A7-7030C72E6633 David Katz, Chair Virtual Hearing Julie Stackhouse, Vice Chair City Council Chambers Michelle Haefele 300 Laporte Avenue Adam Sass Fort Collins, Colorado Ted Shepard Samantha Stegner Cablecast on FCTV, Channel 14 on Connexion & York Channels 14 & 881 on Comcast The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 221 -6515 (TDD 224- 6001) for assistance. Regular Hearing August 17, 2023 Chair Katz called the meeting to order at 6:00 p.m. Roll Call: Haefele, Katz, Sass, Stackhouse, Stegner, York Absent: Shepard Staff Present: Frickey, Sizemore, Claypool, Guin, Hamlin, Puga, Potyondy, and Manno Chair Katz provided background on the Commission’s role and what the audience could expect as to the order of business. He described the role of the Commission, noted that members are volunteers appointed by City Council. The Commission members review the analysis by staff, the applicants’ presentations, and input from the public and make a determination regarding whether each proposal meets the Land Use Code. He noted that this is a legal hearing, and that he will moderate for civility and fairness. Agenda Review CDNS Director Sizemore reviewed the items on the Consent and Discussion agendas, stating that all items will be heard as originally advertised with the exception of the Bohlender Funeral Chapel FDP which was withdrawn by the applicant. Public Input on Items Not on the Hearing Agenda: None noted. Consent Agenda: 1. Draft Minutes from August 17, 2023, P&Z Hearing Planning and Zoning Commission Minutes DocuSign Envelope ID: E780729C-74E8-41AA-A3A7-7030C72E6633 Planning & Zoning Commission August 17, 2023 Page 2 of 5 Public Input on Consent Agenda: None noted. Chair Katz did a final review of the items that are on consent and reiterated that those items will not have a separate presentation unless pulled from the consent agenda. Member York made a motion that the Planning and Zoning Commission approve the Consent agenda for the August 17, 2023, Planning and Zoning Commission hearing as originally advertised. Member Haefele seconded the motion. Vote: 7:0. Discussion Agenda: 2. Water Adequacy Determination Review Code Update Project Description: This is a request for a recommendation to City Council regarding proposed Land Use Code changes to add specific regulations outlining how the City will make a water adequacy determination for development. The regulations are divided into three different categories: (1) established potable water supply entities; (2) new, or other potable water supply entities; and (3) non-potable water supply entities. The goal is to comply with Colorado state statute (Section 29-20-301, et seq., C.R.S.) and to make sure development has the necessary water supply. Disclosures: Chair Katz disclosed that he had conversations stakeholders to hear their opinions and concerns. Recommendation: Approval Secretary Manno reported that a slide from Max Moss, was distributed to the commission regarding his public input presentation. Staff and Applicant Presentations Planner Frickey gave a brief overview of the item. Public Input (3 minutes per person) Janelle Kechter, 621 Boulder Circle, gave her speaking time to Max Moss. Max Moss, 8270 Cherry Blossom, Windsor, Montava Project, spoke to housing unaffordability and water adequacy. He did provide the commission with a PowerPoint slide (hard copy). He would like for staff to do nothing and at the very most only add a few sentences as opposed to pages to the current code. Mike Scheid, ELCO – East Larimer County Water District, commented that generally speaking ELCO supports the language that city staff has put together. Staff Response Interim Planner Manager Frickey responded that in regard to the slide presented by Mr. Moss is great, but that staff would need to confirm the numbers. Commission Questions / Deliberation Clarifying questions Vice Chair Stackhouse asked if there was a timeline for those making a determination or hearing an appeal. Planning Manager Frickey responded that he was unsure if there were any timelines in place. Attorney Potyondy responded that there are timelines in place for filing an appeal and that he could get the process to the commission DocuSign Envelope ID: E780729C-74E8-41AA-A3A7-7030C72E6633 Planning & Zoning Commission August 17, 2023 Page 3 of 5 at a later date. Vice Chair Stackhouse asked if the process could be expeditious or could the process be an extended process. Attorney Potyondy asked for clarification on what was meant by expeditious or extended. He commented that he would be surprised if the process wrapped up in less than 1 year unless there was a settlement, and it was resolved. Attorney Potyondy responded to Vice Chair Stackhouse regarding time periods and appeals; the statute that pertains to this is from the Board of County commissioners and provides that the appeal must be taken no later than 30-days after the decision of the district. If the Board of County commissioners is appealed, this decision must be made to the District Court of the County that has jurisdiction within 30-days. There is nothing under the statute that prescribes how long after an appeal is made that a decision has to be rendered. Chair Katz commented that some of the stakeholder ques tions were, why are we doing this? He would like to understand based on his knowledge that the current policy does not address potential new water providers. And that the State statute is requiring the municipality to have this in our code. Interim Planning Manager Frickey responded that the State statute requires that we have some sort of water adequacy determination process. This then is up to the City’s discretion as to what the process looks like. Chair Katz asked if the city currently has a process and that it does not address a new water provider. Interim Planning Manager Frickey stated the process currently is that the city will receive will-serve letters from existing water providers but that the existing code is silent on new water providers on how to manage them. Attorney Potyondy commented that there will be various ways that the city could address the process of how to make a water adequacy determination, some of the policy determinations that staff has worked with that are being presented to the commission are how much detail and framework for analysis should be included in code and how much to leave out. Generally, the more detail gives more framework for both staff and the applicant to consider and for the applicant to know specifically what it needs to show. With less, it leaves more discretion for everyone. Staff came to this hearing feeling that it would be helpful to have more information. Vice Chair Stackhouse requested clarification on whether or not existing water providers have the appro val authority for private entities, yet the language proposed would require that the after provider agree to the exclusion. Is the city increasing the authority of the existing water providers? Attorney Potyondy responded that if a governmental entity wanted to provide water service in the water service area of an established water provider, it would need to go through the exclusion process and that if it were a private entity that wanted to establish the service are of an established water provider, this is potentially an open conversation. His understanding is that there is not clear authority one way or another, there are arguments on both sides. Vice Chair Stackhouse asked if from a legal standpoint, if the City would have the authority to provide clarit y and require that all entities receive an exclusion even if it is not explicitly stated or vague. Attorney Potyondy responded that city attorneys have viewed the code language and they are comfortable with it. Deliberation Vice Chair Stackhouse started with Section 3.13(C)(5). She believes that criteria in the appeals process is substantive based on each level in the appeal would reassess the criteria and that it is not a technical determination. There is benefit in adding clarity, for the City to define, that all entities will be required to go through this process. On the other side, there is concern about the timeliness of an appeal process. This could increase cost, but also there is value and clarity in the process. Member Sass struggles with the “having an appeals process”. He does not feel it is an appeals process for a special district but rather it is going to be the process for someone to form a special district. He feels it is going to prohibit or make very difficult ways to close the gap. Chair Katz asked if there was a way to provide compensation for existing infrastructure? Member Sass feels strongly that there should be. Chair Katz commented that it is not a surprise that Northern Colorado, Fort Collins, needs to look into the future f or alternative water supplies beyond surface water, due to the cost, however, this is the infrastructure that we have now and there are many complicated variables to bring a new system in. The maintenance of different sets of infrastructure stressing publi c easements, etc. Chair Katz does not want to see restrictions on new districts coming in, but also understands that existing districts have much already invested. Other concerns with the language are that there is some subjectivity. Member York is inclined to support as is. This gives a starting point for those wanting to come in. Member Haefele agrees based on existing water providers have households that are their customers who are ultimately the ones paying for any infrastructure that has been built, intending to serve future development, no one seems concerned about costs DocuSign Envelope ID: E780729C-74E8-41AA-A3A7-7030C72E6633 Planning & Zoning Commission August 17, 2023 Page 4 of 5 that are going to be passed onto existing residents. The criteria for exclusion are objective and would suggest that water should be expensive as none of us pays the true cost for our water or electricity. The notion that the cost of water should be limiting is reasonable. There are ways for homes to run with less water. She would not be comfortable making changes to the language. Chair Katz feels the general overall code needs changes. Chair Katz asked if some of this happens at building permit? Interim Planning Manager Frickey responded that for new water providers, it would happen at the time of Basic Development Review or Final Plan, but not at building permit. Chair Katz asked for a definition of reasonable level of service for the exclusion, is there criteria? Interim Planning Manager Frickey responded, yes, and that it links to municipal code. This is consistent with language in the municipal code. Attorney Potyondy responded that the language in the proposed Land Use Code is based on Section 26-4 of City Code which pertains to utilities where the code language says the City will not extend water or wastewater service to lands that are being served in the service areas from establ ished districts. The city can waive this if the district becomes incapable of providing a reasonable level of service. Chair Katz asked what reason level of service meant. Attorney Potyondy responded that he has not seen any regulations or previous decisio ns that elaborate on this. This may be at the discretion of City staff and ultimately City Council and also waivable by the Director of CDNS in the Land Use Code. Chair Katz, based on subjective reasonable level, what does this mean, quality, infrastructure available, price? Attorney Potyondy responded that this is not defined in the draft but could be looked at. Member Sass commented that he struggles due to current code meeting the statue and understanding where the value is in putting in an entire section of additional code language than what is required by the State. He asked if there was a problem that this is fixing. Member Haefele responded that if there is no current mechanism to address a new water provider or new type of water provider, then it is necessary to write the code. Once you open the door, on one hand maybe reasonable level of service is not specific enough, but just saying “new water provider” go nuts is potentially vague and not specific. Vice Chair Stackhouse, having the rules adds cer tainty and new rules adds costs. This is where we have to be mindful and also the reason for higher density. Member Sass does not see this helping. Member York commented on the presented slide and stated that it is the price someone has to pay for the house, not the cost of building it, this is not reflected in the slide. The slide is not fair for evaluating what the commission is looking at this evening. He feels this is a reasonable compromise on the things the city has control over. Member Sass does not like the 3.13.5 Other Potable Water Supply Needs, it encourages competition in this water district. He feels we are stifling innovation. Attorney Potyondy does not believe that statutory water suppliers are regulated by the Public Utilities Commission, but they are subject to statutory and other legal requirements. Member Hafele commented that to some extent the pricing is regulated, is this current? Attorney Potyondy responded that he believed so. Chair Katz agrees with member Sass in that we need to have a mechanism to allow another water provider be available to citizens. If the potential water provider feels that it is financially feasible and they can deliver clean, reliable, safe drinking water, they should be allowed to do so. However, the existing wa ter providers do need in the process in a collaborative way and if they do have stranded capacity, they should be compensated for it. If they do have new infrastructure that will be mixed in with old, it needs to be addressed in an orderly way. Member Sass feels this new code makes the new district define where they are going to get their water from, how much they are going to charge to make sure they are in alignment with he existing districts. Member York feels it is more to make sure that the decision made by the City can be made on consistent and reliable information that is equivalent to what it has to do with the current ones. Member Sass agrees with Chair Katz in that there needs to be compensation, this code does not address this. Vice Chair Stackhou se feels that the one thing this code would do is subject private entities to these processes that are right now ambiguous with existing water providers. Vice Chair Stackhouse asked why we made the decision to include this code language rather than remaining silent? Interim Planning Manager Frickey responded that if we are silent, we have no criteria to evaluate a new water provider, we do not know where the water is coming from, we do not know the quantity, we do not know the economic feasibility, etc. Vice Chair Stackhouse asked for clarification on why this provision, getting the exclusion from the existing provider, why there was not a choice of not including or being silent on this provision? Interim Planning Manager Frickey responded that being silent on that provision presents challenges. The City is a utility as well and the City needs to protect its interests and its investments, there needs to be a clear process to follow in the event of someone doing the same to the city as it is any other water utility. We are trying to create a level playing field across the City regardless of the water district about whether to exclude or not from that district to create a new water provider. Chair Katz agrees. Attorney Potyondy commented on the rationale underlying why this provision was included in the draft, 3.13.5(c)(5)(c), early on in the discussions with staff, this issue, and the things DocuSign Envelope ID: E780729C-74E8-41AA-A3A7-7030C72E6633 Planning & Zoning Commission August 17, 2023 Page 5 of 5 the commission is wrestling with was identified by staff and looking for guidance on how to address it. One of the few areas where policy guidance was found was in City Code, Section 26-4 and the general policy of the City has been following, respecting the water service area boundaries of our neighboring water districts. In those discussions, it became clear that not addressing the issue did in fact seem to pick a side. If you are silent you are still making a decision. Member Haefele asked if looking short term if there was any indication or question whether any total of all of the existing water providers are capable and have sufficient water rights? Attorney Potyondy responded that he has no reason to think that either of the districts will be incapable of serving their water service areas on the bases of the amount of supply. He noted that some of the districts like ELCO are still in the process of acquiring the water rights it needs as it grows. This is the same model the City of Fort Collins was in until fairly recently. Where they shift the burden to development to bring the water rights as they grow as opposed to gett ing the water rights on the front end for the whole service area and then have a buy-in. Chair Katz commented that he understands that there is a substantial water supply available and that it is in agriculture right now and the issue is the cost. Member York commented that the last time this cam e before the commission it was voted down as it was felt that more time was needed for input. There were no arguments in a substantive way. Vice Chair Stackhouse qualified that some commission members had questions about the appeal process. Member York went on to say that the discussion during this hearing has been about the merit of whether or not to do this at all. He is surprised at the discussion during this hearing of taking a different tack. Member Haefele agrees and that even in April she was not opposed to this code change. Vice Chair Stackhouse feels the information received shows a substantive appeals process. She is anxious about how timely the appeals process will occur. She hopes tha t the city will keep an eye on a potential for a defacto way of avoiding the appeal being heard. She likes competition as it results in the best prices. Chair Katz feels there should be further outreach and updates to the language. He agrees there should be competition, but that the existing districts cannot be hurt by this. He is hesitant. Member Stackhouse made a motion that the Planning and Zoning Commission recommend that the City Council approve the proposed Land Use Code amendment related to water a dequacy determinations. Member Haefele seconded. The Commission notes that the appeals process appears substantive but notes that timeliness will be critical. The Commission noted the importance of encouraging new competition while, at the same time, recognized the infrastructure investments of existing providers. Vote: 4:2. For more complete details on this hearing, please view our video recording located here: https://www.fcgov.com/fctv/video-archive.php?search=PLANNING%20ZONING Other Business None noted. Adjournment Chair Katz moved to adjourn the P&Z Commission hearing. The meeting was adjourned at 7:27pm. Minutes respectfully submitted by Shar Manno. Minutes approved by a vote of the Commission on: October 25, 2023. Paul Sizemore, CDNS Director David Katz, Chair DocuSign Envelope ID: E780729C-74E8-41AA-A3A7-7030C72E6633