Fort Collins will explore creating 1041 regulations, which could provide an avenue for stronger oversight of some high-profile development proposals.
1041 powers allow local governments to review and impose restrictions on developments that involve “areas and activities of state concern.” The idea is to give local governments a chance to ensure that regional or state-related projects meet local development standards, with each locality selecting specific areas or activities of state concern that it would like to regulate and adopting standards tailored to their community’s interests. Examples of developments that can fall under 1041 purview include:
- “Key facilities” such as airports, highways or major public utilities
- Water supply and treatment systems
- Waste disposal sites
- Transit infrastructure
- New communities
- Mineral resources, natural hazards or historical/natural/archaeological resources of statewide importance
The Northern Integrated Supply Project could likely be regulated through the 1041 process, depending on what kinds of regulations the city adopts. NISP, a proposal to take water from the Poudre and South Platte rivers for storage in two new reservoirs, is currently going through the city’s less involved Site Plan Advisory Review process, or SPAR.
A deeper dive for subscribers:Fort Collins may seek stronger oversight of NISP’s Poudre River, natural areas impacts
City Council’s unanimous vote on Tuesday kicked off the process of creating 1041 regulations but did not include a moratorium on SPAR applications, which some community members had requested. Northern Water is expected to submit a SPAR application for a river diversion structure and pipeline associated with NISP in the coming weeks, which would trigger a 60-day timeline for Fort Collins’ Planning and Zoning Board to hold a hearing.
SPAR and 1041 review aren’t necessarily mutually exclusive, city attorney Carrie Daggett said, so it’s possible a project such as NISP could go through both paths of review. The SPAR process is how the city typically reviews projects proposed by state entities. Staff estimated the city receives between two and four SPAR applications per year, on average. Colorado State University is currently trying to use SPAR for city review of its proposed Hughes Stadium development, though council’s rezoning of the Hughes site on Tuesday added complexity to the debate over what will happen with that land.
City staff said Tuesday that they’ll begin conducting research about potential options and consequences of adopting 1041 regulations. They plan to return to council later this summer to explore options. Asked if city staff could accelerate the process, city attorney Carrie Daggett said council could potentially adopt regulations narrower in scope — only related to project impacts on the Poudre River corridor, for example — and broaden the regulations in the future.
Many of Colorado’s larger local governments, including Larimer County, have 1041 regulations. A 2015 state survey found that 57% of counties and 22% of municipalities had adopted them. Each jurisdiction has unique 1041 regulations.
The state study of municipal use of 1041 regulations found they were most frequently applied for developments related to natural/historical/archaeological resources (22% of municipalities regulated this category) and natural hazard areas, meaning areas impacted by geologic hazards, wildfires or floods (19% of municipalities regulated this category).
Larimer County recently used the 1041 process to approve a permit for NISP and deny a permit for the proposed Thornton pipeline. The latter case illustrates a key difference between 1041 and SPAR: 1041 decisions are binding, though they can be contested in court. In the SPAR process, the P&Z board’s decision and recommendations on a project are not binding.
Public comment on Tuesday was largely supportive of creating 1041 powers. Karen Wagner spoke on behalf of No Pipe Dream, the group that led the community opposition to the Thornton pipeline. She said the group found council’s consideration of 1041 powers “encouraging” and called the SPAR process “almost laughable.”
Previous coverage:Court upholds Larimer County commissioners’ denial of Thornton pipeline
“Decisions as impactful as NISP belong with you, our duly elected city council, because during your terms you will be dealing with the costs, impacts and unintended consequences of such projects,” Wagner said. “Please put SPAR activities on hold while you adopt 1041 regulations to ensure that huge projects of statewide interest benefit the city and not just the financial interests of the applicant.”
Council member Kelly Ohlson said he considers 1041 powers an important tool in the toolbox to preserve the city’s natural environment, but he added that the city should move faster to adopt them and said he felt staff was over-complicating the process.
Council first raised the idea of creating 1041 regulations about two weeks ago, and city staff said it will take time to thoroughly research the options and legal questions.
“It’s way overdue,” Ohlson said. “I’m embarrassed, having served on council a while back now, that this never came forward. … To not have the tool is inappropriate.”
Jacy Marmaduke covers government accountability for the Coloradoan. Follow her on Twitter @jacymarmaduke. Support her work and that of other Coloradoan journalists by purchasing a digital subscription today.