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TC Minutes 09-13-2005MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD SEPTEMBER 13, 2005 A regular meeting of the Town of Avon, Colorado was held at 400 Benchmark Road, Avon, Colorado in the Council Chambers. Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council members present were Debbie Buckley, Kristi Ferraro, Mac McDevitt, Amy Phillips, Brian Sipes and Tamra Underwood. Also present were Town Manager Larry Brooks, Town Attorney John Dunn, Town Clerk Patty McKenny, Assistant Town Manager Jacquie Halburnt, Finance Director Scott Wright, Police Chief Jeff Layman, Town Engineer Norm Wood, Public Works / Transit Director Bob Reed, and Community Development Director Tambi Katieb, as well as members of the press and public. Approval of Agenda Mayor Wolfe asked that the following items be added to Unfinished Business (from the work session agenda): update on the Eagle River Enhancement Project and River In-channel Diversions. Disclosure of Potential of Conflict of Interest Town Attorney John Dunn noted that it was not necessary to discuss this topic. Citizen and Community Input Presenters Jeanne McQueeney and Sharon Thompson addressed the Council with regard to the Eagle County Early Childhood Initiative that was sponsored by seed money from Eagle County. They noted the mission of the initiative and a meeting taking place on 9/23/05 to provide another update to the community and that an action plan would be reviewed next spring. John Evans, representative from East West Partners, submitted a letter addressing their comments related to Ordinance No. 05-11, amending Title 17 of Avon's Code. Their main concern is that no properties are likely to be built that would fit the proposed definition of an "accommodation unit", (in terms of the square footage) and the exclusion of the "cook top", yet allowing for a "hot plate". He expressed several reasons why they would prefer the square footage of a unit to be closer to 600 sq. ft. as related to the market demanding larger units, and the difficulty to obtain financing for projects that include the smaller units. Ordinances Community Development Director Tambi Katieb presented Ordinance No. 05-11, Series Of 2005, on first reading, An Ordinance Amending Title 17, Municipal Code of the Town Of Avon, as it relates to the Definition of Use, Accommodation Unit, Kitchen and Adding a Definition for Efficiency Kitchen Zoning Amendments. He reviewed the memo included in council's packet and noted that in their staff review, these amendments to the zoning code were drafted to try to address outdated or unclear zoning definitions. He explained how these amendments would impact density calculations. He presented the recommendations made by the Planning & Zoning Commission, i.e. reduction of the maximum size of the accommodation unit to 400 sq. ft from 600 sq. ft, and the exclusion of the use of a "cook top" from efficiency kitchen. Town Attorney John Dunn noted that these definitions would only be used in Title 17 related to zoning. Mayor Wolfe opened the public hearing. No further comments were made from the public other than above comment made during citizen input from John Evans. The public hearing was closed. Further council deliberation took place on the density calculation and how it impacts zoning, the use of a "cook top", definition of "kitchen and efficiency kitchen", the allowable square footage and water rights calculations based on the density calculations; several scenarios and the impacts of these definitions were outlined and discussed. Mayor Wolfe moved to approve on first reading Ordinance No. 05-11, Series Of 2005, An Ordinance Amending Title 17, Municipal Code of the Town Of Avon, as it relates to the Definition of Use, Accommodation Unit, Kitchen and Adding a Definition for Efficiency Kitchen Zoning Amendments with the following revisions: ✓ Specifically allow for 600 sq. ft. in the definition of "accommodation unit", ✓ Definition of "efficiency kitchen" means a portion of a room, that may contain a sink, refrigerator, dishwasher, microwave oven, cook top, wet bar or similar facility but expressly not a stove, or oven, within an accommodation unit or dwelling. Stub outs for natural gas, propane or 200V electric hook ups are not allowed. Councilor Buckley seconded the motion and it passed unanimously with a roll call vote. Resolutions Town Engineer Norm Wood presented Resolution No. 05-33, Series of 2005, A Resolution Approving and Accepting the Traer Creek Metropolitan District Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1 and Establishing Warranty Period for District Portion of the Public Improvements, Village at Avon, Filing 1, Acceptance of Improvements and Beginning of Warranty Period. He noted that Traer Creek Metro District has submitted all required documentation for approval and acceptance of the District Improvements required by the SIA for the Village at Avon, Filing 1. The improvements consisted of all streets, roads, bridges, walkways, drainage facilities and utilities required to access & serve Filing 1. It was noted that this resolution approves and accepts the District improvements and establishes the warranty period in conformance with the SIA as well as allows the release of collateral required during construction with any warranty work on the District's improvements secured by an existing Maintenance Bond dated July 20, 2004, issued to TCMD in the amount of $885,000 in accordance with the SIA. Discussion ensued about the different types of bonds / escrows held on this project. Mayor Pro Tern Underwood continued to have difficulty accepting the engineer's opinion of project conformity; a point that has been discussed at earlier meetings, again it was noted that the language is acceptable within the engineering profession. Councilor Buckley moved to approve Resolution No. 05-33, Series of 2005, A Resolution Approving and Accepting the Traer Creek Metropolitan District Improvements Installed and Constructed in Accordance with the Subdivision Improvements Agreement for The Village (at Avon) Filing 1 and Establishing Warranty Period for District Portion of the Public Improvements, Village at Avon, Filing 1, Acceptance of Improvements and Beginning of Warranty Period. Councilor Phillips seconded the motion and it passed unanimously with a roll call vote. Town Engineer Norm Wood presented Resolution No. 05-34, Series Of 2005, A Resolution Approving the Amended Final Plat for Lot 15, Block 4, A Resubdivision of Lots 13, 14, 15, Wildridge, Town of Avon, Eagle County, Colorado, 5684 Wildridge Road East. He noted that this amended plat was a minor request in order to vacate a utility and drainage easement that extends through the center of the subject property. Councilor Sipes moved to approve Resolution Approving the Amended Final Plat for Lot 15, Block 4, A Resubdivision of Lots 13, 14, 15, Wildridge, Town of Avon, Eagle County, Colorado. Councilor McDevitt seconded the motion and it passed unanimously with a roll call vote. New Business Transit Director Bob Reed presented an Intergovernmental Agreement with the Town of Mintum for Vehicle Maintenance. He noted that this agreement runs through the end' of 2005 and will need to be renewed at this time, and with a renewal may include a new shop rate. Councilor Regular Council Meeting Page 2 of 5 September 13, 2005 Buckley moved to approve this agreement with the Town of Minturn. It was noted that this motion requires a 2/3 vote of the Council for approval. Councilor Sipes seconded the motion and it passed unanimously with a roll call vote. Other Business Community Development Director Tambi Katieb presented the request from two Planning & Zoning members, Jim Buckner and Christy D'Agostino who are moving away from Avon, to continue their tenure on the commission. Discussion ensued about the pros and cons of releasing these two members or not based on the ability to recruit new people quickly, and if new people were able to become quickly acquainted with all the pending projects before the P&Z Commission. A review of the recently adopted criteria was made and some members suggested waiting to replace the members until, next May. Councilor Buckley moved to immediately recruit two new members to the P&Z Commission with the appropriate skills that live within the Town limits, and only extend the current members until that can be done, with registered electors has the first priority. Councilor McDevitt seconded the motion and it failed with a three to four vote (Buckley, McDevitt, Phillips yea; Ferraro, Sipes, Underwood, Wolfe nay). Councilor Ferraro moved to permit Jim Buckner & Christy D'Agostino to stay on P&Z Commission until Council interviewed new candidates in May 2006, and encouraged them to apply at that time. Councilor Sipes seconded the motion and it passed with a four to two vote (Buckley, McDevitt nay). Mayor Wolfe asked that Community Development Director Katieb relay their message to the two members, thanking them for the participation and skills they bring to the commission. Unfinished Business Town Attorney John Dunn presented the topic for discussion related to the Gates at Beaver Creek. It was noted that CSC Land, LLC, developer of the Gates project, was in default-of the Development Agreement entered into in December 2004, for failure to maintain an active building permit on a schedule that would result in issuance of a certificate of occupancy within two years of the "Effective Date" of the agreement, or two years after the effective date of Ordinance No. 04.20, approving the agreement, finally adopted on 12/14/04. He noted that at the 8123/05 Council meeting, Tim Barton, CSC, Land, LLC, asked Council to direct staff to reissue the foundation wall inspection report, confirming that the building permit has not been cancelled and the Development Agreement was not in default. Council directed staff to then schedule the topic for consideration for this meeting, with a request to the developer to provide financial information as to the present condition of CSC and submit a new construction schedule that would result in issuance of a certificate of occupancy within the time period required by the Development Agreement. The financial information was reviewed at the Executive Session held earlier that day; a new construction schedule was not submitted, but rather the attorney requested a "reasonable" extension to the Development Agreement "to reflect excusable delays and adjustments to the project construction schedule". Dunn noted that an extension would require an amendment to the Development Agreement; such an amendment would have to be a part of an amendment to the existing PUD approval. CSC Land, LLC representatives at the meeting included once again Tim Barton, and representing attorney, Christopher Payne with Ballard Spahr Andrews & Ingersoll, LLP as well as a number of investors of the project, including primary investor Pieter Van Der Hammen. Christopher Payne addressed the Council reiterating the request on behalf of CSC Land, LLC and noting the following three assurances as follows: 1. Financial commitment to proceed with construction commitment 2. Offer to provide additional restoration assurances, $250K cash bond, letter of credit 3. Proceeding with a proposal to amend the development agreement with the construction schedule, through a PUD amendment Regular Council Meeting Page 3 of 5 September 13, 2005 Discussion ensued about they type of assurances the Council would require prior to reinstating the building permit. A dialogue took place on how the timing of the activities needs to roll out and interact with each other, approval of funding, application for a PUD amendment, etc. Mayor Wolfe suggested that continued discussion evolve into some business points of what council wants to accomplish, such as the following: ✓ Plan to reinstate the building permit for "x" days contingent on 2) & 3) ✓ Demonstrate binding financing for 100% of the financing, and contingent on 3) ✓ Submit a revised / amended PUD & Development agreement with the following elements, new completion date, clarification of units to built and applicable amenities fees involving financial analysis, clarification o the $100K affordable housing impact, pay for any additional legal & financial costs related to those revisions, post an additional $250K restoration bond, and require construction schedule that outlines deadlines for certain milestones for construction. ✓ Outline realistic communication strategies between the two parties At this time Council Sipes called to question "shall we entertain an extension of the Gates project?" With a polling of the Council by Mayor Wolfe, four members stated yes (Buckley, Phillips, Sipes, McDevitt), two members stated no (Ferraro, Underwood). Further discussion ensued on the suggested business points above and how the PUD rolls out. It was agreed that some of the above items be outlined in a Memo of Understanding ("MOU"), specifically identifying the business points for consideration between the two parties to be added to the next Council meeting agenda. Councilor. Sipes moved to extend the building permit for the project, otherwise known as the Gates at Beaver Creek, for 90 days, during that period no construction is allowed to commence until several business points, as discussed earlier, are outlined and these business points will be outlined in a memo of understanding ("MOU") to be discussed and agreed to at the next regularly scheduled council meeting. Should that "MOU" not get ratified or any of those points outlined in it, not get ratified, the building permit will again expire immediately. Councilor Buckley seconded the motion. Also included in the motion, per the Town Attorney, is that CSC Land, LLC be current with respect to reimbursement to the Town of costs & expenses, including attorney's fees associated with the ongoing implementation of this agreement without regard to the outcome of what is going on. Councilor Sipes agreed to include this condition in the motion; Councilor Buckley seconded. A roll call vote was taken and the motion passed with a five to one vote (Underwood nay). Unfinished Business Mayor Wolfe presented an update to the Eagle River Enhancement Project, status of applying for a river in-channel diversion. The recommendation from the group of water attorneys who met was to work in a consolidated fashion with Eagle County. Discussion ensued about the timing of filing an application (this year or waiting to see court results on other applications), how this type of endeavor would be paid for and how much (estimated at $300K), and who would participate in the application process. It was also noted that the majority of the design work has been completed on the "Bob the Bridge" portion of the water park. Suggestions were made to join two groups committed to water issues, i.e. NWCCOG's water quality group as well as the Colorado Water Education Foundation. In summary, there was consensus on the following items to inform the Eagle County Commissioner's of Avon's action as follows: Complete engineering with Riverrestoration.org ✓ Budget monies to file RICD, either alone or with the County, if the County agrees to move forward with a RICD as well, unless there is a new viewpoint the Colorado Water Conservation Board. ✓ Request that County's engineering selection be contingent upon that engineering group Regular Council Meeting Page 4 of 5 September 13, 2005 agreeing to incorporate Avon's engineering work, and not to reject the work that has already been completed ✓ And finally, confirmation from the Town's Water Attorney to move forward with the RICD application this year or not. Town Manager Report Town Manager Larry Brooks presented his memo addressing the Buffalo Ridge Affordable Housing Project. After reviewing the documents and all information related to this topic, and for the record he recommended that the Town do nothing to intervene in this situation. He noted that the housing developer was currently working on options to resolve the cash flow problems. Some discussion ensued about the financials included in the packet and the allocations used between the non-profit units vs the market units. Jamie Fitzpatrick, Corum Real Estate Group, answered questions related to the allocations, these allocations were adjusted based on the prorata share of the units, so an adjustment of $15K would be made for BRAHC. Town Attorney Report Town Attorney John Dunn noted that Jackson & Company had filed suit against the Town for the recently adopted ordinance related to short term rentals in Wildridge. A hearing date had not yet been set. Consent Agenda Mayor Wolfe asked for a motion on the Consent Agenda below. Councilor Sipes moved to adopt the consent agenda; Councilor Ferraro seconded the motion and it passed unanimously. a. Minutes from August 23, 2005 Regular Council Meeting & Liquor Board Meeting b. Renewal of 3.2% Beer Retail License (Off premises) for Suncor Energy Sales, Inc. d/b/a Phillips 66, 0046 Nottingham Road c. Renewal of 3.2% Beer Retail License (Off premises) for City Market #26, 0260 Beaver Creek Place d. Renewal of 3.2% Beer Retail License (On-Premise) for Pizza Hut of Avon, 40 Nottingham Road There being no further business to come before the Council, the meeting adjourned at 8:45 PM. APPROVED: Debbie Buckley Kristi Ferraro Mac McDevitt Amy Phillips Brian Sipes Tamra Underwood Ron Wolfe Regular Council Meeting September 13, 2005 RES E TFULL S BMITTED: C_ Irao Patty M ti ny, To rk Page 5 of 5