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PROCEEDINGS OF THE BOARD OF COUNTY COMMISSIONERS

MONDAY, MARCH 9, 1998

LAND USE PLANNING MEETING

(# 301 @ 100)

The Board of County Commissioners met at 3:00 p.m. in regular session with County Attorney Jeannine Haag. Chair Pro Tem Clarke presided and Commissioner Disney was present; Chair Olson will be out of town this week. Also present were: Keith Schuett, and Dan Tasman, Planners II; Rob Helmick, Senior Planner; and Lonnie Sheldon, Project Engineer. Recording Clerk, Gael Cookman.

Chair Pro Tem Clarke noted that the following are consent items and will not be discussed in detail unless requested to do so:

1. FORT COLLINS WATER TANK SPECIAL REVIEW (#97-ZR1076): APPROXIMATELY ¼ MILES EAST OF COUNTY ROAD 23E AND ¼ MILES SOUTHWEST OF COUNTY ROAD 54G ON GOAT HILL; PART OF THE NORTHEAST ¼ OF THE NORTHWEST ¼ OF SECTION 30, TOWNSHIP 8 NORTH, RANGE 69 WEST OF THE 6TH P.M. LARIMER COUNTY, COLORADO.

This is a request for a Site Specific Development Plan and a Special Review for the construction of a 2 million gallon potable water storage tank for the City of Fort Collins. Staff findings include: 1)This proposal complies with the intent and purpose of the Comprehensive Zoning Resolution; 2) This proposal is harmonious with the surrounding neighborhood and will not negatively impact property values; 3) This proposal will not impair the public health, welfare, etc. with undesirable sanitary conditions or adverse environmental impacts; 4) This proposal will provide better potable water service to the area and the City of Fort Collins.

Staff recommendation is for approval of the Special Review application for the Fort Collins Water Tank with the following conditions: 1) A fire hydrant must be provided on County Road 23E and Old State Highway 287; 2) Construction shall be phased into two start dates to reduce impacts to the Golden Eagles that nest in the area. Phase one shall be March 1, 1998, and this work shall be on the lower portion of Goat Hill right above the residences on Larimer County Road 23E. The work shall be the construction of the first portion of the road and other support services for the tank project. Phase two shall be started no sooner than April 1, 1998, and will be within the area of the proposed tank and will include the construction of the access road and the proposed water tank; 3) The seed mix for reclamation shall be as follows or as approved in writing by the Larimer County Engineering Department:

Species Variety %of Mix

Western Wheatgrass Rosanna, Arriba 25

Sideoats grama Butte, Vaughn, Niner 25

Little Bluestem Pastura 25

Big Bluestem Kaw 10

Yellow Indianagrass Holt, Llano 10

Switchgrass Blackwell, Grenville 5

4) Prior to the start of construction or site improvements, the required Minor Land Division shall be approved and all conditions of approval for the Minor Land Division shall be met; 5) prior to the start of construction or site improvements, the following shall be submitted to the Larimer County Planning Department and approved by the Larimer County Engineering Department: a)Provide complete details for the downstream path of the concentrated stormwater from the overflow basin, the treatment feature, and the service road ditches. The additional analysis should extend downstream to an existing major stormwater facility with capable capacity. The additional details should include the potential of, and impacts from, the treatment facility over topping; b) Provide a corrected hydrologic evaluation or final drainage report that comply with the Larimer County stormwater management manual; c) Provide legal and graphical off-site easement information between the east site boundary and connection to County Road 23E and easement information for the sediment basin area; d) Provide final construction specification documents for the project.

2. LOVATA PROJECT PRELIMINARY RURAL LAND PLAN (#98-EX1178): S ½ SE ¼ 05-08-69; LOCATED WEST OF COUNTY ROAD 21, APPROXIMATELY ¼ MILE SOUTH OF COUNTY ROAD 60E AND 1 MILE WEST OF COUNTY ROAD 19 (NORTH OF THE HOLNAM CEMENT PLANT).

This is a request for preliminary approval to divide 80 acres into 3 units; two single-family units of approximately 5 acres each and one 70-acre unit with existing single-family house and agriculture buildings, all protected by covenants for a minimum of 40 years. Staff findings include: 1) This proposal is consistent with the policies of the Rural Land Use Process; 2) The 8 single-family residential units possible under the current O-Open zoning of the property, the density and proximity of the residential development immediately to the northeast, and the general development pressure within the immediate area, especially use-by-right 35-acre division of land, support our belief that this is an appropriate project, within both the spirit and letter of the Rural Land Use Process; 3) The site-based incentives (1 density bonus unit, or 50%) provide the landowners with roughly equivalent benefits that they would obtain through dividing their property into individual 35-acre tracts. As proposed, this project will also provide commensurate benefits to Larimer County; 4) RLUC Staff supports the Lovata Preliminary Rural Land Plan based on the applicants' planning and design rationale for the location of the project's additional residential units, the overall acceptance of the preliminary plat design at the neighborhood meeting, and the potential for continued agricultural use of the residual land. The proposed plan considers the various land development and design options, particularly the 35-acre alternative, for which there is no County review; 5) The plan is compatible with the existing neighboring land uses; 6) A RLUP final fee of $850.00 will be collected for each new dwelling unit constructed at the time of building permit issuance. A note to this effect to be placed on the plat.

The staff recommendation is for approval of the Lovata Preliminary Rural Land Plan, with the following conditions: 1) Issuance of a Larimer County Road Access Permit before the access to CR 60 is constructed. The access must be in accord with the Larimer County Access Policy; 2) Approval of final engineering designs, including design of utilities, roads, ROW dedication, and stormwater plan, before final plat submittal; 3) Demonstration of adequate water service provided by Northern Colorado Water Association; 4) Preliminary soil testing to demonstrate soil suitability for on-site sewage systems; 5) Protective covenant and management plan review and approval before final plat; 6) Review and approval of final development agreement by County Attorney; 7) Note on final plat indicating the on-going operation of the Holnam Cement Plant limestone mine west of the subject property and that there will be traffic, dust, and noise associated with the mine; 8) The following notes shall also be included on the final plat: a) Mosquitoes: The County does not have a mosquito control program. Any spraying or other control will be the responsibility of the property owners' b) Wildlife: Wildlife such as skunks, snakes, and prairie dogs occur more frequently than in more built-up areas. Lot owners should be aware of these occurrences. The County is not able to mitigate nuisances if they develop, although information on managing these issues is available. The County does not perform prairie dog control, but can advise owners on how to obtain the services of licensed firms that do; it does monitor prairie dog colonies for evidence of plague. Animal control requirements for both dogs and cats should be observed; c) Adjacent agricultural uses: Farming practices on this and adjacent properties can produce odors, noise and dust. These are a normal part of agriculture and should be expected to occur; d) CR 21 and 60 are gravel surface and therefore produce significant amounts of dust. The County performs dust control activities on a priority basis according to traffic volume. Paving or dust treatment are not applied to roads with very low traffic counts; e) Horse pasture management: If livestock is to be kept on the smaller parcels, the owners must be aware that lots of this size must be managed very carefully in order to maintain grass cover in the pasture; f) Engineered footing and foundations shall be required on all structures; g) The results of a radon detection test conducted in new dwellings once the structure is enclosed but prior to issuance of a certificate of occupancy shall be submitted to the Planning Department. As an alternative, a builder may present a prepaid receipt for a radon tester which specifies that a test will be done within 30 days. A permanent certificate of occupancy can be issued when the prepaid receipt is submitted; h) Road fees shall be paid at the time of building permit, if determined applicable by the Engineering Department; i) Park fees shall be paid at the time of building permit issuance; j) RLUP fees shall be paid at the time of building permit issuance; k) A fire hydrant with a minimum fire flow of 500 gallons per minute from a sustainable water supply on a minimum 6-inch water line or fire sprinkling of the homes is required by Poudre Fire Authority. The selected method of fire protection shall be adequately indicated on the final plat. 9) Homeowners' covenants, including architectural controls, will be reviewed prior to final approval; 10) The applicants agree to provide sales and other information to the Rural Land Use Center Director as necessary to insure that monitoring of the incentives can be conducted; 11) Owner or real estate professional shall provide purchasers of residential lots and the Farm with Code of the West at time of real estate closing.

3. CRYSTAL LAKES 4th FILING LOT 4 AND 5th FILING LOT 25 AMNEDED PLAT (98-SA1185): SE ¼ 01-10-74, CRYSTAL LAKES 4th AND 5th FILINGS, RED FEATHER LAKES

This is a request for an amended plat to consolidate two lots and vacate the utility easement. Staff findings include: 1) The proposed amended plat is in compliance with the Larimer County Master Plan, the Larimer County Zoning Resolution and the Larimer County Subdivision Resolution; 2) The amended plat is compatible with other development in the surrounding area; 3) Approval of the amended plat will not result in any significant impacts to neighboring properties, the natural environment, or the provision of services and infrastructure; 4) Property values in the surrounding area would not be adversely affected by the amended plat.

The staff recommendation is for approval of the amended plat of Crystal Lakes 4th Filing Lot 4 and 5th Filing Lot 25, file #98-SA1185, and the vacation of the utility easement between Crystal Lakes 4th Filing Lot 4 and 5th Filing Lot 25.

4. CRYSTAL LAKES 6th FILING LOTS 111 AND 112 AMENDED PLAT (98-SA1186): NE ¼ 01-10-74, CRYSTAL LAKES 6th AND FILING, RED FEATHER LAKES

This is a request for an amended plat to consolidate two lots and vacate the utility easement. Staff findings include: 1) The proposed amended plat is in compliance with the Larimer County Master Plan, the Larimer County Zoning Resolution and the Larimer County Subdivision Resolution; 2) The amended plat is compatible with other development in the surrounding area; 3) Approval of the amended plat will not result in any significant impacts to neighboring properties, the natural environment, or the provision of services and infrastructure 4) Property values in the surrounding area would not be adversely affected by the amended plat.

The staff recommendation is for approval of the amended plat of Crystal Lakes 6th Filing Lots 111 and 112, file #98-SA1186, and the vacation of the utility easement between Crystal Lakes 6th Filing Lots 111 and 112.

5. SEAWORTH MINOR RESIDENTIAL DEVELOPMENT APPEAL (#98-EX1191): NORTHWEST ¼ OF THE SOUTHWEST ¼ 08-09-69

This is an appeal to allow the use of the Minor Residential Development (MRD) process instead of the full subdivision process to divide a lot that was created after May 5, 1972. Mr. Tasman described the proposal and explained the staff findings as follows: 1) The Minor Residential Development process was amended by the Board of County Commissioners in February 1993 to limit the types of property that are eligible to be subdivided without going through the full subdivision process. The subject parcel was created after 5 May 1972; 2) Planning staff consistently recommends denial of all MRD appeals. This is a policy decision which is more appropriately made by the Board of County Commissioners; 3) The Minor Land Division (MLD) process can be used to create a building lot while keeping the remaining land in agricultural use. The full subdivision process is available to evaluate development and divide parcels that are not eligible for consideration under the MRD process. The staff recommendation was for denial of the Seaworth MRD appeal.

Commissioner Disney asked if this proposal caused any road issues. Mr. Sheldon explained that there were no major road concerns regarding the proposal; however, the Engineering Department did ask for a right-of-way along County Road 11, a clear delineation of where the access points would be, and a Section 2.8 road fee for each additional lot that was proposed as well as information on drainage and erosion control.

Mr. Seaworth stated that he submitted this proposal in order to split off the portion of his property that does not have a legal deed; he explained that he bought the property from the North Poudre Irrigation Company, but since the North Poudre Irrigation Company is exempt from paying taxes, there was no tax deed. Mr. Seaworth noted that he has paid taxes on this property for years, but when he decided to build a house on it, he was told he could not do so because he did not have a legal deed for the property. Now he wants to take a portion of that land, combined with another corner of his farm which would total about 10 acres, and sell it; he explained that this would also accomplish squaring off his farm.

Commissioner Disney wanted to confirm that the property was indeed divided up after 1972 and Mr. Seaworth stated that it was and that he did it for inheritance tax purposes. Mr. Tasman stated that this property was split under the 35-acre exemption process. Commissioner Clarke had some questions regarding the lot configurations as they are broken down into lots 1, 2 and 3. Mr. Seaworth explained that lot 1 is what he is proposing to sell, lot 2 is his current land that he is farming and lot 3 is the rest of what he purchased from the North Poudre Irrigation Company. Commissioner Clarke stated that he was concerned that since the rest of the 160 acre lot was divided into 40 acre parcels, it would still leave Mr. Seaworth with four sites to build on; he noted that it is Mr. Seaworth's right to develop these parcels and asked if Mr. Seaworth would be willing to take this property through the Rural Land Use Process if he ever decided to build on these parcels. Mr. Seaworth stated that he would want to use the Rural Land Use Process if he ever chose to develop this area. Much discussion followed regarding the best possible way for Mr. Seaworth to be able to achieve his current goal of selling lot 1 and squaring off his farm. The conclusion was that Mr. Seaworth should use the MLD process to sell lot 1 and if he decides to develop in the future, a condition could be placed on the MLD that the remainder of his property would be exempt from the subdivision process if Mr. Seaworth combined it and brought it though the Rural Land Use Process. Mr. Seaworth agreed that this seemed to present the best solution for his current desires.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners deny the Seaworth MRD Appeal; and any MLD for this particular property submitted to staff should include a condition that he be able to develop the remainder of his combined property through the Rural Land Use Process.

Motion carried 2-0.

Meeting adjourned at 3:45 p.m.

TUESDAY, MARCH 10, 1998

ADMINISTRATIVE MATTERS

(#302)

The Board of County Commissioners met at 9:00 a.m. in regular session with Frank Lancaster, County Manager. Chair Pro Tem Clarke presided and Commissioner Disney was present; as noted previously, Chair Olson is out of town this week. Also present were: Ann Watson, Health Education Supervisor; Kathy Snell, Health and Human Services Director; Bob Keister, Budget Manager; Deni LaRue, Community Information Manager; and Donna Hart, Commissioners Staff Services Manager. Recording Clerk, Gael Cookman.

1. OPEN SESSION FOR PUBLIC COMMENT: Elizabeth Carr addressed the Board stating her complaints regarding the development along the foothills; she presented the Board with some preliminary petitions which indicated there are a number of persons that feel the same way she does. Commissioner Clarke asked Ms. Carr if there was any area that she was particularly unhappy with. Ms. Carr stated that she is particularly unhappy that development is taking place near the ridges, as she believes this should be left for scenic view. Both Commissioner Clarke and Commissioner Disney explained the steps that the County is taking to preserve open space and curb the development on the foothills. These steps included: using the sales tax funds to purchase more land for open space; creating the Rural Land Use Process, which is designed to cluster homes which creates more open space without having to use sales tax or lottery dollars to do so; creating and participating in the Five County Front Range Mountain Backdrop Study, in which all five major counties along the Front Range are working together to preserve the foothills; and the Fossil Creek Plan, which will give the developers a bonus by not developing sending areas which include the ridges along the foothills. Some discussion followed during which both Commissioners expressed their concern for preserving open space and encouraged Ms. Carr to spread the word and help them get the sales tax passed again once it expires. Ms. Carr stated that she would continue her petitioning and bring the results back to the Board.

2. APPROVAL OF MINUTES FOR WEEK OF MARCH 2, 1998:

Commissioner Disney moved that the Board of County Commissioners approve the Minutes for the week of March 2, 1998, as submitted.

Motion carried 2-0.

3. APPROVAL OF SCHEDULE FOR WEEK OF MARCH 16, 1998:

Commissioner Disney moved that the Board of County Commissioners approve the Schedule for the week of March 16, 1998, as submitted and revised.

Motion carried 2-0.

4. APPROVAL OF CONSENT AGENDA:

Commissioner Disney moved that the Board of County Commissioners approve the following documents as listed on the Consent Agenda on Document Review for March 10, 1998:

MISCELLANEOUS DOCUMENTS: Hiawatha Heights, Amended Plat, Lots 9 & 10, Block 25. LIQUOR LICENSES: County approval was granted to: The Store - 3.2% - Fort Collins, CO; Pot Belly Restaurant and Lounge - 6% - Red Feather Lakes, CO; Carter Lake Marina - 3.2% - Loveland, CO; and Whitaker Oil, Inc. - 3.2% - Loveland, CO. County issuances: Inlet Bay Marina - 3.2% - Fort Collins, CO.

A98-36 REIMBURSEMENT AGREEMENT FOR CONSTRUCTION OF A SANITARY SEWER BETWEENT THE LARIMER COUNTY GENERAL IMPROVEMENT DISTRICT AND PROGRESSIVE LIVING STRUCTURES

A98-37 INTERGOVERNMENTAL AGREEMENT FOR REGIONAL COOPERATION ON PLANNING FOR MANAGING URBAN DEVELOPMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE CITIES OF FORT COLLINS, GREELEY, LOVELAND, AND EVANS AND THE TOWNS OF BERTHOUD, MEAD, MILLIKEN, JOHNSTOWN AND WINDSOR. (FINAL APPROVAL OF SEPARATOR PROJECT - ORIGINALLY APPROVED ON DECEMBER 23, 1997)

A98-38 INTERGOVERNMENTAL AGREEMENT FOR RENTAL OF VOTING EQUIPMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE POUDRE HEALTH SERVICES DISTRICT

A98-39 INTERGOVERNMENTAL AGREEMENT FOR RENTAL OF VOTING EQUIPMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE POUDRE VALLEY FIRE PROTECTION DISTRICT

A98-40 INTERGOVERNMENTAL AGREEMENT FOR RENTAL OF VOTING EQUIPMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE TOWN OF TIMNATH

A98-41 INTERGOVERNMENTAL AGREEMENT FOR RENTAL OF VOTING EQUIPMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE GLACIER VIEW FIRE PROTECTION DISTRICT

A98-42 LIBRARY SERVICES AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE TOWN OF BERTHOUD

A98-43 AIRCRAFT AGREEMENT FOR WILDLIFE SUPRESSION BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE COLORADO STATE FOREST SERVICE

C98-09 CONTRACT CHANGE LETTER TO CDBG CONTRACT #97-755 BETWEENT THE BOARD OF COUNTY COMMISSIONERS AND THE STATE OF COLORADO

R98-29s FINDINGS AND RESOLUTION APPROVING THE YELEK/EATON PRELIMINARY RURAL LAND PLAN

R98-30s FINDINGS AND RESOLUTION APPROVING THE LAPORTE PLAZA PLANNED UNIT DEVELOPMENT

R98-31s FINDINGS AND RESOLUTION APPROVING THE LIND PRELIMINARY RURAL LAND PLAN

R98-32s FINDINGS AND RESOLUTION APPROVING THE CONNELL RESOURCES/WELLINGTON DOWNS SPECIAL REVIEW SIA TIME EXTENSION

R98-33s FINDINGS AND RESOLUTION APPROVING THE PLAN AND PRELIMINARY PHASE PLAN OF STANTON BRIDGE PLANNED UNIT DEVELOPMENT

R98-34s FINDINGS AND RESOLUTION APPROVING THE LEACH MINOR RESIDENTIAL DEVELOPMENT

R98-35s FINDINGS AND RESOLUTION APPROVING THE WILD MINOR RESIDENTIAL DEVELOPMENT

R98-36s FINDINGS AND RESOLUTION DENYING THE MASTER PLAN AND PRELIMINARY PHASE PLAN OF INTERCHANGE BUSINESS PARK PLANNED UNIT DEVELOPMENT

R98-37s FINDINGS AND RESOLUTION DENYING THE MASTER PLAN OF CLYDESDALE PARK PLANNED UNIT DEVELOPMENT

R98-38s FINDINGS AND RESOLUTION APPROVING THE SARATOGA ESTATES MINOR RESIDENTIAL DEVELOPMENT

R98-39s FINDINGS AND RESOLUTION APPROVING AN AMENDED PLAT IN PINEWOOD SPRINGS 12 FILING, LOTS 39 & 40

R98-40s FINDINGS AND RESOLUTION DENYING THE SCHUETZE MINOR RESIDENTIAL DEVELOPMENT APPEAL

R98-41z SPECIAL REVIEW FINDINGS AND RESOLUTION APPROVING THE WESTERN PCS/SPRINT PCS SPECIAL REVIEW CHANGES OF TERMS

R98-42s FINDINGS AND RESOLUTION APPROVING AN AMENDED PLAT IN FOX ACRES COUNTRY CLUB, LOTS 1, 12, 26, 57 AND 82 OF ENVELOPE G, H AND J, AND A PORTION OF THE COMMON PROPERTIES OF THE 2ND FILING, AND A PORTION OF THE 3RD FILING

R98-43s FINDINGS AND RESOLUTION APPROVING THE VACATION OF EASEMENT IN CONTINENTAL NORTH SUBDIVISION

R98-44s FINDINGS AND RESOLUTION APPROVING AN AMENDED PLAT IN BERTHOUD LAKE RANCHETTES PUD

R98-45s FINDINGS AND RESOLUTION APPROVING AN AMENDED PLAT IN FOX ACRES COUNTRY CLUB LOTS 7, 8 AND 9 OF ENVELOPE I, A PORTION OF THE COMMON PROPERTY LINE OF THE 4TH FILING, AND A PORTION OF THE 3RD FILING

R98-46s FINDINGS AND RESOLUTION APPROVING THE BOXELDER CREEK ACRES LOTS 1 & 2 REPLAT

R98-47s FINDINGS AND RESOLUTION APPROVING THE LEVI ACRES MINOR RESIDENTIAL DEVELOPMENT

Motion carried 2-0.

5. REQUEST FOR FUNDING FOR HEALTH DEPARTMENT ANNIVERSARY CELEBRATION: Ms. Watson requested Board approval of her budget request of $500 for the 30-year anniversary celebration of the establishment of the Health Department in conjunction with Public Week Observance; she explained that the total cost to fund this event would be $1658.74 and that her office would fund the remaining cost of $1158.74.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners approve the budget and request of $500 for the 30-year anniversary celebration of the establishment of the Health Department in conjunction with Public Health Week Observance; monies for this request to be derived from the Commissioners' Special Projects Fund.

Motion carried 2-0.

6. WORKSESSION:

-- Mr. Lancaster explained that he invited Ms. Snell to the worksession because she had a pressing issue to discuss that did not get put on the agenda in time for today's meeting. Ms. Snell stated it has been very difficult to find a suitable location to house the proposed juvenile assessment center; she also questioned where the funds would come from to keep the project running in future years. Commissioner Clarke stated that there were a number of ways future revenue for the project could be generated; i.e. Certificates of Participation, contributions from the City of Fort Collins since they have expressed an interest in participating in the program, the City of Loveland could have fee based participation, and the County would probably have to find a way to include some of the costs within the general fund. Commissioner Clarke noted that the focus right now should be on getting the initial assessments underway as the future of the project depends upon the data received from the initial assessments. Some discussion followed and Ms. Snell stated that initially 2000 square feet would be sufficient space to start up this program; it was agreed by all it would be better to rent, rather than purchase, the facility for this program. Ms. Snell and Mr. Lancaster will work with Facilities Manager Dave Spencer to locate adequate rental space within the County.

-- Ms. Hart reviewed pending invitations with the Board.

7. COMMISSIONER REPORTS:

-- Commissioner Disney submitted a letter he received from the Board of Directors of the League of Women Voters in Estes Park which stated their opposition to amending Larimer County zoning ordinances to allow short term rentals (less than thirty days) in any zoning classification where such rentals are presently prohibited.

-- Commissioner Clarke stated that he attended the Water Law seminar and he felt it was a pretty worthwhile lecture; he also noted that he brought back two books from the seminar and he will share one of them with our water committee.

8. LEGAL MATTERS: Ms. Haag explained that the County transferred lots 7 - 15 of the Ellison Subdivision to the Danielson's in December of 1997 and that both parties had agreed no development would be allowed on this property; however, this restriction was not included in the Quit Claim Deed. Ms. Haag requested Board approval on a Covenant that includes the stipulation that no development will be allowed on this property.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners approve the Covenant which amends the Resolution and Quit Claim Deed dated December 30, 1997 to restrict development on lots 7 - 15 of the Ellison Subdivision.

Motion carried 2-0.

R98-48g RESOLUTION AMENDMENT/COVENANT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND LARRY R.W. DANIELSON AND THERESA A. DANIELSON (Restricts development on lots 7 - 15 of the Ellison Subdivision)

Ms. Haag stated that she would need to discuss contract negotiations in Executive Session.

M O T I O N

Commissioner Disney moved that the Board go into Executive Session to discuss contract negotiations.

Motion carried 2-0.

The Board came out of Executive Session at 10:55 a.m. and continued with Administrative Matters.

9. BUDGET UPDATE: Mr. Keister presented the Board with a draft of his Fund Balance Guidance which outlined the working capital minimum balance required to meet the county's operating needs; he explained that they must maintain a minimum of 10% working capital and he recommended the County maintain 11% this year in order to be able to fund some of the Department proposals as well. Mr. Lancaster presented the Board with a handout prioritizing the Department proposal and requests; he noted that some of the big ticket items such as the Human Resources Payroll System and the Parks Visitors Center simply could not be funded as they were too costly to include in this years' budget. Both Commissioner Clarke and Commissioner Disney thanked Mr. Lancaster and Mr. Keister for their efforts in successfully managing the County budget.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners accept the Budget Managers recommendation and set the working capital ratio at 11% for 1998.

Motion carried 2-0.

Meeting adjourned at 11:15 a.m.

WEDNESDAY, MARCH 11, 1998

PUBLIC HEARING REGARDING CABLE TV AGREEMENTS FOR

ALL FOUR CABLE COMPANIES IN LARIMER COUNTY

(#303 & #304)

The Board of County Commissioners met at 1:30 p.m. for a Public Hearing to consider adoption of four cable franchise agreements for cable service in Larimer County. Chair Pro-Tem Clarke presided and Commissioner Disney was present; as noted previously, Chair Olson is out of town this week. Also present were: Russ Legg, Cable TV Coordinator; Mike Bryant, Access and Utility Coordinator; Tom Duchen, President River Oaks Communications Corporation; and Jeannine Haag, Assistant County Attorney. Recording Clerk, Sherry Graves.

Chair Pro-Tem Clarke welcomed everyone in attendance, introduced staff, and noted that the Board will be conducting four different hearings simultaneously. Mr. Legg stated that the purpose of the hearing today is for the County and the cable companies to review, and consider adoption of new agreements regarding installation, service provisions, and operations of cable systems in Larimer County; he noted that negotiations of these agreements have been ongoing for two years and that Larimer County has used River Oaks Communications as a consultant and advisor in these negotiations and the recommendation to the Board today is for approval of the four agreements as presented. Mr. Legg discussed the contents of the agreements; he noted they are normal agreements with cable systems, as regulated by the Federal Communications Acts and FCC, and they establish the length and terms of the agreement, the service area and line extensions, what upgrades and technical standards are expected to be met by the cable companies, provide for emergency alert capabilities and for testing and compliance procedures with technical standards. Mr. Legg continued that new to these agreements is a subscriber rights and complaint procedures and the obligations of each company, and all agreements raise the fees that the County collects from 3% to 5%, as permitted by Federal regulations. Mr. Legg noted that the agreements govern the construction of the systems and the bonding and technical requirements related to the construction and the agreements are tailored to the needs of the individual companies. Mr. Legg noted that by FCC rules and regulations, Larimer County cannot regulate programming of the companies.

1. COMCAST (Loveland): Mr. Duchen noted that Comcast currently has two agreements with the County - one will expire in the Fall of 1998 and the other in April of 2002 and, as with the other operators, at the time of entering into the new agreement with the County, the prior agreements and amendments will be of no further force or effect. Mr. Duchen informed the Board that Comcast has 1800 subscribers and they have upgraded their system for 1400 of those subscribers; the term of the agreement will be for 10 years provided that within 3 years from the date of the agreement they complete the upgrade of their system. Mr. Duchen stated for the record that the renewal process has been conducted in accordance with the Communications Act of 34 and the Cable Communications Policy Act of 1984, Cable Television Consumer Protection and Competition Act of 1992 and Telecommunications Act of 1996 and they have had extensive discussions and negotiations with Comcast and Dick Lyons, Attorney for Comcast, and in his judgement the cable operator has the financial, legal and technical ability to meet the needs and interests of the County and his recommendation is that the County adopt and approve the agreement with Comcast.

Jody Cline, resident from the rural Berthoud area, addressed the Board and stated that they do not receive all the channels that the Comcast subscribers in Loveland and she asked when they will get those same channels. Greg Griffin, Comcast Manager, responded that as part of their upgrade, they completed 3/4 of the Larimer County system, but there are still 400 subscribers that have technical incompatibilities, but a part of their requirement in the new franchise document is to upgrade those 400 subscribers within the 3-year time period so they will be compatible and be interconnected.

At this time, Mr. Bryant complimented Comcast and TCI for working together last year to construct an interconnect, which allows public hearings to be seen throughout the Front Range and Berthoud area. Attorney Richard Lyons stated for the record that they have negotiated an agreement with the County staff, but at the last minute editorial and procedural changes were suggested and he asked if those changes were incorporated in the agreement presented to the Commissioners; Mr. Duchen acknowleged that they are included. Mr. Lyons reviewed the document at this time and noted one other minor correction on page 27 that the name of the company has to be changed from Comcast Communications, Inc. to Comcast SCH Holdings, Inc.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners approve the Agreement between Larimer County and Comcast SCH Holdings, Inc. for the Use of Rights-of-Way and Easements owned by Larimer County, Colorado, and Rights-of-Way and Easements Dedicated and Accepted for Public Use by Larimer County, and authorize the Chair to sign same when suggested revision is made.

Motion carried 2 - 0.

2. FANCH (Intermountain): Mr. Duchen outlined the basic differences in the agreement with Fanch Cablevision of Colorado (Intermountain) and noted that the focus of this cable system is for the Fort Collins Front Range area. Mr. Duchen reminded the Board that several years ago there were some compliance issues and Fanch spent $250,000 in corrective work, which is above what was expected for improving the system and addressing customer issues. Mr. Duchen stated that the term of the proposed agreement is for 5 years; however, if Fanch upgrades their system to a capacity of 76 video programming channels, with 60 video programming channels being activated within that 5 year period, the term of their agreement will be for 7 years and in the event that they increase the channel capacity to 110 video programming channels with 87 video programming channels being activated within the 7-year period, then the term of their agreement will be for 10 years. Mr. Duchen stated that they have had extensive negotiations with the cable operator and the renewal process was conducted in accordance with the Federal Cable Acts, as previously mentioned, and his recommendation is that the agreement be adopted. Mr. Bryant reiterated that this company has made great efforts to correct violations and has gone above and byond the County's recommendations.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners approve the Agreement between Larimer County and Fanch Cablevision of Colorado LP for the Use of Rights-of-Way and Easements owned by Larimer County, Colorado, and Rights-of-Way and Easements Dedicated and Accepted for Public Use by Larimer County, and authorize the Chair to sign the document when presented for signature.

Motion carried 2 - 0.

3. CABLE SYSTEM, INC. (Estes Park): Mr. Duchen noted that this agreement is similar in many areas to the previous agreements, but is different in that the system is driven off an agreement which is between Cable Systems, Inc. and the Town of Estes Park; he explained those differences. In summary, pursuant to the Federal Law and the Acts of 34, 84, 92 and 96, they have concluded, in negotiating this agreement in the context of the informal renewal process, that the cable operator has the financial, legal, and technical ability to meet the needs and interests of the County and residents and their recommendation is that the agreement be approved.

Mr. Lyons requested that one correction be made on page 8, Section 10, Paragraph D that the sentence begin "If required by the Town of Estes Park"; Ms. Haag and Mr. Duchen noted their concurrence with the requested change.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners approve the Agreement between Larimer County and Cable Systems, Inc. for the Use of Rights-of-Way and Easements owned by Larimer County, Colorado, and Rights-of-Way and Easements Dedicated and Accepted for Public Use by Larimer County, and authorize the Chair to sign the document when revision is made.

Motion carried 2 - 0.

4. Heritage Cablevision of Delaware, Inc. (TCI): Mr. Duchen stated that the County has spent considerable time and effort in its negotiations with TCI and during the course of these discussions, they have worked diligently and have covered a lot of ground; however, at this juncture, the County and TCI have not fully agreed on all terms. Mr. Duchen reminded the Board that the previous operator agreement expired in August '97 and the agreement has been extended on several occasions; during that time, they have had many meetings and many concerns were raised by TCI and many significant changes were made to the document. Mr. Duchen stated that the County has been reasonable in this process and listened very closely to the concerns of TCI, but at this juncture there are still some unresolved issues in the "Default and Determination" section. Mr. Duchen stated that in the proposed agreement, if there is an alleged event of default, the operator is provided with notice and an opportunity to remedy the situation and have a hearing before the County Commissioners; the agreement provides steps for due process rights to the operator. Mr. Duchen continued that TCI has indicated that they would like for the agreement to state that if an event of termination or alleged default were to occur, the County will conduct either a quasi-judicial proceeding or, if they were not able to have a full-blown judicial proceeding at the County Board level, they wanted to have the right of de novo review. Mr. Duchen stated that he and Ms. Haag have discussed this at length and if the law provided that TCI was entitled to a de novo review, they would be entitled to it; however, if the law does not provide for de novo review, it is their view that the County should not give TCI rights through an agreement. By giving them this right, the County Board would be spending hours and hours and days and days going through what is like a full-blown trial and ruling on evidentiary matters, and then giving TCI the opportunity to start over again on appeal. Mr. Duchen cited the Sturgis Case in Kentucky in which an operator had its renewal proposal denied by a municipality because it did not meet the needs and interests of the community and the Federal Appelate Court said that the proper authority to make the judgement call is the local governmental authority. In conclusion, Mr. Duchen stated that at this time they are at an impasse with regard to this document.

Jerry Kashinski, attorney for Heritage, addressed the Board and expressed his disappointment with Mr. Duchen who, in his opinion, has misrepresented the situation; in response, he stated that a hearing is not provided for in the proposed franchise agreement, it is merely an administrative meeting, and they are unable to determine what appeal rights they would have after such an hearing. What they have asked for is one of two things: 1) If it is going to be a very informal hearing, they asked for a review by a Court to look at the issues afresh; or 2) A hearing before the County Commissioners, acting as a Commission as a whole, or with an appointed hearing officer at which time they could compel witnesses to testify and have evidence introduced, such as they would in a Court. Mr. Kashinski stated that they are not asking for a "Start all over again review by a Court" and he noted that this is very important because revocation of a franchise is in essence a death penalty for a cable company and they believe they are proper to ask for some third party Court to review the facts. Mr. Kashinski stated that if this was the only franchise they had, they could agree to it, but they have several hundred other franchise agreements and if the due process rights were waived in Larimer County, they would be challenged by others.

Chair Pro-Tem Clarke asked Ms. Haag for her comments regarding whether or not we are causing TCI great damage to their right for due process; he noted that he is very concerned that we give the right to due process, but he is also concerned that we do not do something that will cause a lot of expense to the taxpayers of Larimer County. Ms. Haag responded that, in her opinion, there has been no misunderstanding between TCI and the County and it has been clear from the outset that basically what TCI wants is that in the event the County would declare them in default and terminate the agreement, they want the ability to have a trial on the merits; she explained the procedure they would follow under the proposed agreement and stated that the County does not want to give them anything beyond the law and the County is not trying to take away any of their rights, but we do not want to give them rights that either Congress or the Judiciary may deem inappropriate for them to have.

There was discussion of the Weld County Agreement and if it contains what TCI is asking from Larimer County; Ms. Haag had previously requested a copy of that Agreement and she read that portion aloud, which states: "If they want to terminate the agreement, they will be provided a hearing by the Board of County Commissioners". Ms. Haag stated that this statement is less beneficial to TCI than what is proposed in our agreement. Much discussion followed regarding the misunderstanding between TCI and Mr. Duchen; Mr. Duchen read the portion on Page 22, D2 relating to this matter. It was suggested that a decision on this matter be delayed to allow time for further negotiations. Mr. Legg responded that to suggest that we delay this for further negotiations, he will have to ask the Board for an additional appropriation because they have been spending the taxpayers money to negotiate with TCI for months and his budget is depleted.

Carol Johnson, Director of Franchising in Central Division, acknowledged that in going through the final draft, all the other issues have been taken care of and this is the only issue not resolved. Kathy Stewart, TCI Area Manager, shared with the Board all that TCI has accomplished since taking over the company in February 1996.

Chair Pro-Tem Clarke discussed the wording in question on Page 22, D2 and stated that it is very clear to him and, in his opinion, it gives TCI the ability to resolve issues with the Commissioners and the right to then go to Court and he is supportive of the agreement as written; Commissioner Disney concurred that he also thinks the agreement is fair.

M O T I O N

Commissioner Disney moved that the Board of County Commissioners approve, as presented, the Agreement between Larimer County and Heritage Cablevision of Delaware, Inc. for Use of Rights-of-Way and Easements owned by Larimer County, Colorado and Rights-of-Way and Easements Dedicated and Accepted for Public Use by Larimer County, and authorize the Chair to sign same.

Motion carried 2 - 0.

The hearings adjourned at 3:25 p.m.

___________________________________________

CHERYL OLSON, CHAIR LARIMER COUNTY

BOARD OF COMMISSIONERS

MYRNA J. RODENBERGER

LARIMER COUNTY CLERK & RECORDER

( S E A L )

ATTEST:

___________________________________________

Gael M. Cookman, Deputy County Clerk

___________________________________________

Sherry E. Graves, Deputy County Clerk

Background Image: Rocky Mountain National Park by Sue Burke. All rights reserved.