HomeMy WebLinkAbout2021CV30425 - Save The Poudre And No Pipe Dream Coporation V. Northern Colorado Water Conservancy District, Northern Integrated Supply Project Water Activity Enterprise, The City Of Fort Collins - 001C - Exhibit 3 1
MEMORANDUM
TO: John Barth on Behalf of Save The Poudre
FROM: Paul Sizemore, Interim Community Development & Neighborhood Services
Director
DATE: May 5, 2021
SUBJECT: Administrative Interpretation #3-21 regarding the applicability of the Site
Plan Advisory Review (SPAR) process to the NISP proposal
I. BACKGROUND
On April 19, 2021, the Community Development and Neighborhood Services Department
received a request (“Interpretation Request”) from attorney John Barth on behalf of the
Save the Poudre organization to interpret provisions of the Land Use Code as they relate to
the Northern Integrated Supply Project (“NISP”) Site Plan Advisory Review (“SPAR”).
The City of Fort Collins Land Use Code (“LUC”) addresses interpretations in Division 1.4
and the SPAR process in Section 2.1.3(E) and Division 2.16 (referenced SPAR provisions
attached). NISP is expected to submit its SPAR application in May 2021 for the portions of
the project that occur within City limits.
NISP is a proposed water supply and storage project that will serve 15 communities and
water districts in northern Colorado, including the Fort Collins-Loveland Water District
that serves portions of southeast Fort Collins and the City's Growth Management Area.
The portion of NISP proposed within the City includes buried water pipeline and the
Poudre Rive intake diversion structure at the northwest corner of Mulberry St. and Lemay
Ave. NISP is administered through the Northern Integrated Supply Project Water Activity
Enterprise (“NISP Enterprise”), a water activity enterprise established and operated by the
Northern Colorado Water Conservancy District (“Northern Water”). NISP will require
various federal, state and local permits and approvals before it can be constructed and
operated. The main elements of NISP are located outside of Fort Collins under the
jurisdiction of entities such as Larimer County, the U.S. Army Corps of Engineers, and the
Water Quality Control Division of the Colorado Department of Public Health and
Environment, all of which have decision making power related to NISP.
The Interpretation Request consists of four requests summarized as follows:
1. Whether the SPAR process applies to NISP considering that the applicant is not
currently the owner or operator of the parcels subject to the application.
Community Development & Neighborhood
Services
281 North College Ave.
P.O. Box 580
Fort Collins, CO 80522-0580
970.224.6046
970.224.6050 - fax
fcgov.com
DATE FILED: June 9, 2021 2:57 PM
FILING ID: 25B6CAFF36124
CASE NUMBER: 2021CV30425
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2. Whether NISP must propose "improvements” to existing public buildings or
structures to be eligible for the SPAR process.
3. Whether the applicant, the NISP Enterprise, is a “public entity” for the purposes of
LUC 2.1.3(E)(1).
4. Whether Colorado Revised Statutes § 31-23-209 and the SPAR process apply to
NISP and whether the NISP Enterprise governing board can overrule a Planning
and Zoning Board disapproval.
II. INTERPRETATION
a. Preliminary Considerations
Before specifically addressing the four requests, it is necessary to first address: (a) the
scope of my interpretive authority, (b) the City’s authority for the SPAR process, and (c)
whether the portion of NISP proposed within the City qualifies as an “improvement” or
“structure.”
(a) Pursuant to LUC 1.4.1, my interpretive authority, as applicable to the
Interpretation Request, is limited to the text of the LUC. Because the SPAR
process references state statutes, and as discussed in the next point is intended to
be consistent with those statutes, this interpretation references those statutes but
my interpretation is intended to be narrowly construed to apply to the LUC
SPAR provisions.
(b) The City’s SPAR process is intended to be consistent with Colorado Revised
Statutes (“C.R.S.”) § 31-23-209 and § 22-32-124 and these state statutes are
specifically referenced in LUC Section 2.13(E) and Division 2.16. C.R.S. § 31-
23-209 establishes a process for municipalities to review the “character, location
and extent” of, among other things, public buildings or structures. C.R.S. § 22-
32-124 establishes a process for municipalities to provide comments to the
relevant board of education regarding proposed acquisitions of land or prior to
the construction of any structure or building. With regards to NISP, the
language regarding schools in the SPAR provisions is not applicable.
(c) The portion of NISP within the City qualifies as an “improvement” or
“structure.” LUC Section 5.1.2 defines an “improvement” as “any man-made,
immovable item which becomes part of, is placed upon or is affixed to real
estate,” and a “structure” as “a combination of materials to form a construction
for use, occupancy or ornamentation whether installed on, above or below the
surface of land or water.” Based upon the information provided to the City to
date, my interpretation is that the proposed buried water pipeline and Poudre
River intake diversion structure fall within the definitions of both
“improvement” and “structure.”
b. Responses to the Specific Requests Contained in the Interpretation Request
1. Whether the SPAR process applies to NISP considering the applicant is not
currently the owner and operator of the parcels subject to the application.
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My interpretation of LUC Section 2.1.3(E)(1) is that the SPAR process is intended to apply
not only to improvements made by a public entity on parcels such entity currently owns or
operates but also to improvements to parcels an entity may not own or operate at the time a
SPAR application is reviewed but intends to own or operate. NISP includes diversion
structures in the Poudre River and underground pipelines for delivering water within
Northern Water’s service boundaries. As is typical for public pipeline projects, the
applicant does not currently own or operate all of the property where the pipeline will be
installed. It is incumbent upon the applicant to obtain easements and rights-of-way for the
proposed improvements, at which time the NISP Enterprise will own the improvements,
the easements and/or rights-of-way, and will operate the facilities. This interpretation is
consistent with how the SPAR process has been consistently interpreted and applied in the
past and, as discussed above in the Preliminary Considerations, the SPAR process is
intended to be consistent with C.R.S. § 31-23-209, which does not impose a current
ownership or operation requirement prior to review of a proposed structure.
2. Whether NISP must propose "improvements” to existing public buildings
or structures to be eligible for the SPAR process.
My interpretation of LUC Section 2.1.3(E) is that what NISP is proposing qualifies as
“improvements” (see above Preliminary Considerations discussion) and that
“improvements” do not have to be made to existing “public buildings or structures” to be
subject to SPAR review but can be merely proposed to be constructed.
LUC Section 2.1.3(E)(1) includes the term “improvements,” and Section 2.1.3(E)(2)
includes the term “public building or structure,” but these terms are in separate subsections
and are not used together, nor are they intended to be used together. The applicability
statement set forth in LUC Section 2.1.3(E)(2) does not limit SPAR review to existing
public buildings or structures and the majority of SPAR reviews the City has conducted
have been for proposed public buildings and structures, not changes to existing buildings or
structures. While there is language in Section 2.1.3(E)(2) addressing the applicability of
SPAR to enlargements or expansions of public buildings, structures, and schools, this
language does not mean that SPAR only applies to existing public buildings or structures.
3. Whether the applicant, the NISP Enterprise, is a “public entity” for the
purposes of LUC 2.1.3(E)(1).
My interpretation of LUC Section 2.1.3(E)(1) is that the NISP Enterprise qualifies as a
“public entity.” The NISP applicant, the NISP Enterprise, is a water activity enterprise
formed and owned by Northern Water, a statutorily created governmental entity under
Colorado Revised Statutes Title 37, Article 45. Under the state statute the works of a water
conservancy district are deemed to be a public use essential for the public benefit of the
people of Colorado. Therefore, for the purposes of LUC 2.1.3(E)(1), I interpret the
applicant to be a “public entity.”
4. Whether C.R.S. § 31-23-209 and the SPAR process apply to NISP and
whether the NISP Enterprise governing board can overrule a Planning and
Zoning Board disapproval.
With regards to whether C.R.S. § 31-23-209 and the SPAR process apply to NISP, my
interpretation of LUC Section 2.1.3 and Division 2.16 is that the SPAR process applies to
NISP for the reasons previously discussed in this interpretation, and there is not another
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development review process applicable to NISP currently contained within the LUC.
Because the SPAR process as applicable to NISP is intended to be consistent with C.R.S. §
31-23-209, the SPAR process can be interpreted as carrying out C.R.S. § 31-23-209.
With regards to the ability to overrule a Planning and Zoning Board disapproval of a
SPAR, the fourth request asserts that neither the NISP Enterprise nor Northern Water
qualify as a “governmental body” with the ability to overrule a disapproval pursuant to
C.R.S. § 31-23-209. The assertion offers as support that the definition of “governing body”
contained in C.R.S. § 31-1-101(6) refers to an entity that has “been ‘given lawful authority
to adopt ordinances for the City of Fort Collins.’” LUC Section 2.16.2(L) does not use the
term “governing body” or “governmental body” but instead states in relevant part that, “a
disapproved Site Plan Advisory Review made under Section 31-23-209, C.R.S., may be
overruled by the governing board of the public entity by a vote of not less than two-thirds
(⅔) of its entire membership” [emphasis added]. My interpretation of LUC 2.16.2(L) is that
the governing board of the NISP Enterprise would have the ability to overrule a Planning
and Zoning Board disapproval. The SPAR language “governing board of the public entity”
is consistent with the intent of C.R.S. § 31-23-209, which provides the ability to overrule a
disapproval to the governmental body having jurisdiction over the authorization or
financing of the proposed project.
III. CONCLUSION:
As it relates to the application of the SPAR process to NISP, this administrative
interpretation clarifies that:
· The SPAR process is intended to apply not only to improvements made by a public
entity on parcels such entity currently owns or operates but also to improvements to
parcels an entity may not own or operate at the time a SPAR application is reviewed
but intends to own or operate.
· What NISP is proposing qualifies as “improvements,” and improvements do not
have to be made to existing “public buildings or structures” to be subject to SPAR
review but can be merely proposed to be constructed.
· The NISP Enterprise qualifies as a “public entity.”
· LUC Section 2.1.3 and Division 2.16 indicate that the SPAR process applies to
NISP, and LUC 2.16.2(L) provides that the governing board of the NISP Enterprise
would have the ability to overrule a Planning and Zoning Board disapproval.
Pursuant to LUC Section 1.4.3(d), this interpretation has no precedential value and shall be
limited in its application to the project identified in the interpretation.
Attachments:
April 19, 2021, Interpretation Request and Exhibits
LUC Section 2.1.3(E)
LUC Division 2.16