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HomeMy WebLinkAboutMemo - Mail Packet - 1/31/2023 - 07 - Memorandum From Kirk Longstein Re: 1041 Regulations – Designated Activities And Project DefinitionsPlanning, 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 DATE: January 26, 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 – Designated Activities and Project Definitions Bottom Line: This memo provides an update on designated activities of statewide interest and project size thresholds proposed for Council’s consideration at the upcoming February 7, 2023, Council meeting. The public may view the most current (released January 20, 2023) draft 1041 regulations at www.fcgov.com/planning/1041-regulations. Background The purpose of 1041 powers is to give local governments a seat at the table during the review of particular development projects occurring within their jurisdiction, even when the project has broader impacts. The term “1041” refers to the number of the bill, House Bill 74-1041, that created the 1041 powers in 1974 and the statutes regarding 1041 powers are also referred to as the Areas and Activities of State Interest Act (“AASIA”). The statute authorizes local governments to regulate specified activities and areas, and the proposed regulations address three types of activities listed in the statute. As directed by City Council through a resolution adopted May 2021, staff has sought input from engaged community partners; including utility providers and environmental advocacy groups on 1041 regulations for major domestic water, sewage treatment and highway projects as set forth in the AASIA. 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) incentivizes project designs that avoid impacts to critical natural habitat and cultural resources. DocuSign Envelope ID: FE56CC4D-736E-4DBB-A1A2-15073CAFFEC2 2 When is a project required to obtain a 1041 permit? 1. Applicability: Is the project designated by the Fort Collins Land Use Code (does it fall within the type and size thresholds)? Major new (expansion to existing) domestic water system (as defined) Major new (expansion to existing) sewage system (as defined) Highways & Interchanges If yes; neighborhood meeting & FONAI (Finding of Negligible Adverse Impact) review If no; no additional action 2. FONAI Review: Does the project intersect with one of the geographic thresholds? if yes; 1041 permit required, unless mitigation plans, if considered, can demonstrate a negligible adverse impact in which case a FONAI is issued. if no; FONAI issued and no 1041 permit required. (May be subject to existing Site Plan Advisory Review process in this instance.) Definitions The draft regulations define project-size thresholds (e.g., pipe diameter, pipe length, and easement size) (see definitions attached). 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 permitting programs. This impact area is roughly equivalent to four (4) lots within the old town neighborhoods. The definitions included in the City’s 1041 Regulations are similar to the Larimer County regulations as well as several other counties with 1041 regulations to align with a consistent approach. The definitions regarding major domestic water and sewer facilities are written to comply with the scope of authority provided under the AASIA statute. To provide additional predictability and to more precisely identify which projects have the potential to adversely impact important community resources, staff has provided more prescriptive language within the definitions of the Land Use Code that bring more precision to the AASIA definitions. Exemptions Additionally, the definitions provide a description for projects that would not be covered by the scope of the regulations. For example: the definition of major domestic water and wastewater excludes irrigation and stormwater related facilities. Additionally, work within an existing easement is excluded where the surface impact is not expanded beyond 30-feet wide by 1,320 linear feet in the aggregate. A specific set of exemptions are provided within the regulations and separate from the definitions (LUC 6.4.1). Examples of the specific exemptions include (1) any project previously approved by the Planning and Zoning Commission pursuant to the Site Plan Advisory Review (SPAR) process (e.g., NEWT 3 pipeline); and (2) a proposed development plan that is directly necessitated by a proposed residential, commercial, industrial or mixed-use development (e.g, Bloom pipeline). FONAI Review Evaluation Criteria A guiding principle of this process is to incentivize project designs that minimize impacts to Disproportionately Impacted Communities, critical natural features, historic cultural resources and city-owned properties. As such, staff proposes a review process that allows an applicant to DocuSign Envelope ID: FE56CC4D-736E-4DBB-A1A2-15073CAFFEC2 3 avoid a full 1041 permit submittal if their project design meets that intent. Geographic-based thresholds are included as evaluation criteria for determining the potential for adverse impacts. Once a potential applicant determines that their project falls within the defined project size thresholds, a pre-application review and neighborhood meeting would be scheduled. A Finding of Negligible Adverse Impacts (FONAI) is a review by staff following a neighborhood meeting to determine applicability of the standards and if a full permit is required. Staff will evaluate a FONAI determination using the following criteria and such determination is appealable to the Planning and Zoning Commission. In addition to FONAI evaluation criteria, mitigation plans reviewed by staff may be a factor when issuing a Finding of Negligible Adverse Impact and whether a 1041 permit is required. FONAI Evaluation Criteria Has potential to adversely impact: • City natural areas or parks • City-owned property • High Priority Habitat and Natural Habitat Corridors • Natural habitat features and buffer zones • Historic and Cultural Resources • Disproportionally Impacted Communities DocuSign Envelope ID: FE56CC4D-736E-4DBB-A1A2-15073CAFFEC2 4 ATTACHMENT 1: Definitions – Project Size thresholds Major new sewage system shall mean: 1. A new wastewater treatment plant; 2. A new lift station; or 3. An interceptor main or collector sewer used for the purposes of transporting wastewater that meets one or more of the following criteria: a. Transmission lines greater than 15” diameter pipe and 1,320 linear feet in the aggregate for the proposed development plan; or b. Will require a new easement 30-feet or greater in width and 1,320 linear feet in length in the aggregate for the proposed development plan. Major new domestic water system shall mean: 1. A system of wells, water diversions, transmission mains, distribution mains, ditches, structures, and facilities, including water reservoirs, water storage tanks, water treatment plants or impoundments and their associated structures, through which a water supply is obtained, stored, and sold or distributed for domestic uses; or 2. A system of wells, water diversions, transmission mains, distribution mains, ditches, structures, and facilities, including water reservoirs, water storage tanks, water treatment plants or impoundments and their associated structures, through which a water supply is obtained that will be used directly or by trade, substitution, augmentation, or exchange for water that will be used for human consumption or household use; And all or part of a system described in (1) or (2) above meets one or more of the following criteria: a. Distribution and transmission lines greater than 12” diameter pipe and 1,320 linear feet in the aggregate for the proposed development plan; or b. Will require a new easement of 30-feet or greater in width and 1,320 linear feet in length in the aggregate for the proposed development plan. In determining whether a proposed development plan is a major new domestic water supply system, the Director may consider water rights decrees, pending water rights applications, intergovernmental agreements, treaties, water supply contracts and any other evidence of the ultimate use of the water for domestic, human consumption or household use. Domestic water supply systems shall not include that portion of a system that serves agricultural customers, irrigation facilities or stormwater infrastructure. Major extension of an existing domestic water treatment system shall mean the expansion of an existing domestic water treatment plant or capacity for storage that will result in a material change, or the extension or upgrade of existing transmission mains, distribution mains, or new pump DocuSign Envelope ID: FE56CC4D-736E-4DBB-A1A2-15073CAFFEC2 5 stations that will result in a material change. Major extension of an existing domestic water treatment system shall exclude the following: 1. Any maintenance, repair, adjustment; 2. Existing pipeline or the relocation, or enlargement of an existing pipeline within the same easement; 3. 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 4. Any facility or pump station or storage tank that does not increase the rated capacity from the Colorado Department of Public Health and Environment. Major extension of an existing sewage treatment system shall mean any modification of an existing wastewater treatment plant or lift station that will result in a material change, or any extension or upgrade of existing interceptor main or collector sewer that will result in a material change. Major extension of an existing sewage treatment system shall exclude the following: 1. Any maintenance, repair, adjustment; 2. Existing pipeline or the relocation, or enlargement of an existing pipeline within the same easement; 3. 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 4. Any facility or lift station that does not increase the rated capacity from the Colorado Department of Public Health and Environment. Site selection of arterial highways and interchanges and collector highways shall mean the determination of a specific corridor or facility location which is made at the conclusion of the corridor location studies in which: 1. Construction of an arterial highway, interchange, or collector highway is proposed; or 2. Expansion or modification of an existing arterial highway, interchange or collector highway is proposed that would result in either (a) or (b), or both as follows: a. An increase in road capacity by at least one (1) vehicle lane through widening or alternative lane configuration. b. Expansion or modification of an existing interchange or bridge. DocuSign Envelope ID: FE56CC4D-736E-4DBB-A1A2-15073CAFFEC2