July 22, 2025 — Planning Board Regular Meeting

Transcript

[MM:SS] timestamps correspond to the YouTube recording.

[0:01] Yes, it sounds like we have somebody with their audio turned on on a laptop in the room. If we can all check to make sure that we're muted. That was me. That was me. Thank you. Okay. all right. It is 6 0. 1, and welcome to the July 20, second 2025, city of Boulder planning board meeting. I will call the meeting to order and note that board Member Boone is absent. Board Member Claudia Hanson, theme and Ml. Robles are online, and the remaining 4 of us are here in the room. Our 1st piece of business is agenda, item number 2 public participation, and I believe Vivian is going to

[1:01] walk us through the guidelines for our meetings, and and then we'll take public comment both online. And if so, in the room. Okay, take it away, Vivian. Great. Thank you. Good evening, everybody, and thank you. Members of the public who are joining us tonight. Just a reminder that open comment session, which will be right after I read these rules, is really for items, not that are not part of the public hearing which will come later in this meeting. So it's really open comment about other issues not related to the public hearing item. So I'll just start off by saying that the city is engaged with community members to co-create a vision for productive, meaningful, and inclusive civic conversations. And this vision supports physical and emotional safety for community members, staff and board members as well as democracy. For people of all ages, identities, lived experiences and political perspectives. And we have more information about the productive atmospheres. Vision on the city website

[2:04] next slide, please. and I'll just read some examples of the rules of decorum that are in the Boulder Revised Code and a few other guidelines that support this vision, and all of these will be upheld during this meeting. Tonight all remarks and testimony shall be limited to matters related to city business. No participant shall make threats or use other forms of intimidation against any person. obscenity, racial epithets, and other speech and behavior that disrupts or otherwise impedes the ability to conduct the meeting are prohibited, and we ask that all participants, online and in person identify themselves by 1st and last name. Please next slide, please, and if you are joining us online, you can raise your virtual hand by finding it at the bottom of your zoom screen to let us know that you would like to speak, either during this open comment session that's coming up or later for the public hearing. And there's the next slide just shows another way to get to that virtual hand. You can

[3:09] hit the reactions button. I think it is, and then you'll see the hand there, and if you push that. Then we'll know that you'd like to speak, and we'll call on people in the order that we see the hands raised. So those are the rules of decorum or rules of public participation. And we can move to open comment. Is that okay? Chair. That is Thomas, do we have anyone in the room? We do not have anybody signed up to speak in the room, so we can go ahead and move to online participants. Great. And I would just ask if there are people joining us online. Please go ahead and raise your virtual hand, so that we know, and each person will have 3 min to share their comments with the planning board. Just give folks a few moments. We'll start with Lynn Siegel. Please go ahead, Lynn. You have 3 min.

[4:04] I like to wait to see if anyone else is there, but I don't want to delay the meeting. I really liked Jan Burton's piece in the paper today, and I don't agree with Jan Burton on just about anything except the airport and the fiscal irresponsibility of the Council was quite a stunning piece of work, she put in. I really liked it. I mean it was. I thought it was very reflective of reality, and at the Rab. Last night they were talking about an integrated process of determining the water, use the water sources and the water use of the area, and I think what really needs to be done by planning board or council, or both.

[5:00] Regards to uncontrollable growth, which is how I perceive it. Unlike the progressives, quote unquote, and that is a caring capacity for each individual living in this community, and that means a number that quantifies their use of services, including open space, fire, police, food, water and structures, open space. everything, their environmental impact on the area in a number. And then when you're entertaining proposals from applicants, you can, you know.

[6:02] can contain them at that point. They can only have so much impact from, you know that applicant, and they have to pay for that instead of sticking it on to the taxpayer later on as an afterthought. because then that comes back, the taxpayer has less disposable income to spend and sales tax revenue, and then the city's complaining. They don't have any income. And why should we be depending on things that way? Things should be? It should be like pay. Go you, you use it, you pay for it as you go, and make. It's hard enough to make future projections. But if you don't even have an online projection right now, how are you going to make a future projection?

[7:02] And I think that's just how these projects should be entertained. Done. Thank you. I don't see any other hands raised. Give folks a couple more seconds before we close the open comment. Okay, that concludes the open comment. Back over to you, chair. Great. Thank you very much. Vivian, and members of the public who spoke. We move on to agenda. Item, 3. Approval of the minutes, the agenda. Item 3. A. Is the April 20, second, 2025. Draft planning board minutes. Is there any discussion, corrections, changes, or Ml. Or email. Or or. That's okay, Mark. I'm good. So I had put this note out there, and I was wondering apparently

[8:08] the minutes look more like an agenda than actual minutes of what happened, and that has something to do with the fact that it was not a recorded meeting. And so there isn't a way to get minutes. And so I was wondering if we could get attached to those minutes, a link to the staff presentation on how to use the area plans in Site and News Review. I think that was one of the kind of critical discussions that we had at the meeting and One of the reasons we wanted to have a retreat on it. A retreat subject was to help us better understand how the area plans should be informing the use that would be. I'm I'm I'm not trying to cut you off. But I will say, Thomas and I had a discussion just a few moments ago that that

[9:07] what Thomas's proposal and item was to include those items in the record and link to those items, and so I believe that the current set of minutes has that link. but the materials won't be uploaded till tomorrow. Okay, I I didn't see an update to the packet, but cool. That was my point. Thank you for that. Thank you, Thomas. Of course. Thank you. I appreciate the suggestions. Any other additions changes to the minutes. Then I will entertain a motion to approve the April 20. Second minutes. I move to approve the April 20, second, 2025 planning board minutes. a second mason seconds. Okay, I'm going to start on my left, and we're going to go down the line here. Mason. Yes, Laura. Yes, Kurt, yes, Claudia.

[10:11] Yes. Ml. Yes. And I'm a yes, okay. So we approve those. Item 3 B, the May 20, th 2025 draft planning board meeting minutes again in a discussion, additions, corrections or changes. Okay, I move to approve the May 20, th 2025 draft planning board minutes. I'll second. Okay. Moved and seconded Mason. Yes, Laura. Yes, Kurt, yes, Claudia. Yes. Ml. Yes. And I'm a yes. okay. And finally, item 3, c, the June 3, rd 2025. Draft planning board meeting minutes again.

[11:01] Changes. Discussion. Nothing. Okay, let's do it. I move to approve the June 3, rd 2025 draft planning board minutes. I'll second. Okay, Mason, keep your mic on. Yes, Laura. Yes, Kurt, I was absent, so I'll recuse myself. Okay, Claudia. Yes. And Ml. Yes. And I'm a yes. okay. We now move on to agenda. Item 4, which is a call up item, it is use review for a 10,579 square foot lifolization. Is that correct? Okay, lifolization. Freeze drying process building known as Apollo as part of the existing cordon, Pharma, pharmaceutical Manufacturing facility. At 2075, 55th Street. The building will be located at the site of the current Butler Building, which will be mostly demolished. This application is subject to potential call up on or before. July 28, th 2025.

[12:10] Does any member have questions about this, or a desire to discuss it and call it up. I see Ml. Has her hand up. I do? And I had said a question ahead of time, but it prompted another question. So the change in use from storage to a more active manufacturing. what is the impact to water use? Is this a water intensive change, or is that not an issue? Do we know how. Well, it's not a criteria that we consider typically under use review. But I can defer to the applicant if you had a response on water usage.

[13:09] Hi! My name is Don Ash. I'm a partner at siteworks. We are an engineering planning and design firm in Boulder. Andrew Dolany's here. He's the project manager for Coordinates building. I think he can answer your question. Hello, everyone. Thank you for your time. At this stage. We are not planning to increase our water usage for the site. Yeah. in any significant quantity. It is a process that is taken from another plant on site. That quantity is then processed the lyophilization process and well done pretty well. There essentially pulls the water out of the product. So we're not actually adding any water into that process. Thank you. Perfect. Thank you so much, and I appreciate your having responded to the energy use earlier today. As well. Thank you. That was my question. Thank you.

[14:03] Thank you very much. And before we go on. Charles just mentioned that, in fact. water usage is not part of the use Review criteria, and I would urge us all. I'm just as guilty as anyone to try to focus our questions and concerns to parts of the code that are criteria for our decision, making Claudia. So I had a question about the phasing of this project. And so the applicants. Written statement suggests that there's additional projects planned on the cordon pharma campus in the near future that will require review. So I'm just curious why these are being separated into distinct phases. Don Ash with siteworks. Apollo is our 1st phase. It's a little ahead of schedule compared to some of the other projects. So we came in with a minor MoD which was approved by Staff a few weeks ago, concurrent with the Use Review. So that's the 1st project we have in the pipeline, we submitted a second project that we're calling Artemis.

[15:20] We got some comments back from Staff. We had a meeting with Charles and other staff members today, and we'll be resubmitting that in a few weeks as well. And then the 3rd phase of this project is our flood control levy, which is a important part of the operations. So that's going to be coming back, probably in the 1st quarter of 2026. Great, thank you, Claudia, is that. Yeah, that's great. I did have one more question. If that's okay. Yep, please. And that is, I looked at the environmental program status report that was in our memo, and I understand that's provided to the city on a regular basis. And this is a question for city staff. I would like to know which departments and staff evaluate reports like these

[16:08] from our local industries, and if the city is involved in measuring outputs and setting targets, or if the city is more of a passive recipient of data from industries, when we have reports like these. It's a great question. I don't know. Off the top of my head. I'd have to get back to you. Okay. Thanks. Yeah, please, Laura. just a quick comment, which is this cordon Pharma site is part of the East Boulder subcommunity, and was part of the East boulder, subcommunity, plan, development process. This parcel was left as industrial, single purpose, industrial use and just want to thank corden pharma for being a good neighbor, and all of the efforts that you have made to reduce sound noise, vibration, all the things that we don't want to have impacting neighboring properties. I think you're doing a great job. I think this is a very appropriate use, and I wish you good luck with your new facility. Great! Thank you.

[17:03] And I'll pass that along, too. Kirk. I just in reading the the packet. I was confused. Why, this even requires a use review, and I don't want to get into it right now. But maybe it's something that we could hold for a future time at some point. because, as I understand it, the zoning, the current zoning is for industrial manufacturing areas primarily used for research development manufacturing dot dot. And this use is called general manufacturing. So it seems like it should be an allowed use under the zoning. So again, not not something I want to delve into right now. I just want to raise it as a potential future subject for discussion. Just it does raise an interesting question, does Saf have a quick answer to that?

[18:02] Even though it's a larger question about use reviews when they seemingly are. Anyway. I can't remember. Excuse me, what the trigger is off the top of my head, but I can look it up. Shannon's on the call, Shannon. If you know off the top of your head. Yeah, Hi, Shannon Muller. With the city of Boulder. Yeah, we have different categories of manufacturing. So our general manufacturing does require a use review in this zone. So any expansion kind of of the use happening there, we look at through the use review process. This is one of those ones where I'll simply characterize it as maybe we're putting too fine a point on it. But having said that. Does anyone else have questions or other comment or desire to call this up?

[19:03] Okay, thank you very much. That closes agenda. Item for a we're yeah. Great. Thank you. All set. Thank you very much. Okay. We now move on to our public hearing. Item, agenda. Item 5 a. And I will read the title, and then we'll go through the description of how this is going to work. Agenda. Item 5. A public hearing and consideration of a recommendation to the City Council on a proposed annexation agreement amendment for the property at 2 through 92 Arapahoe Avenue, also known as 90 Arapahoe Avenue. to modify the affordable housing requirement under the agreement and facilitate the development of the site with for sale homes. This is reviewed under case number LUR. 2025 0 0 0 5.

[20:04] So the way this is going to work, we'll have a staff presentation clarifying questions from the board to staff. The applicant will have also have 15 min. I should say staff is given about 15 min. The applicant will have 15 min. That 15 min will be followed by clarifying questions from the board to the applicant. Then we will have our public hearing where members of the public may speak, and then we'll close the public hearing, and the board will deliberate. So that's the process. And so later tonight we're going to I hope, adopt our new rules for the planning board Planning Board's operation. One of those and I keep remembering and trying to remind myself, is to ask if any board member has any conflict of interest in regard to this application or property.

[21:12] Okay, what's that? Well, actually, not. Yeah. So, okay, all right. Okay. Having having concluded that portion, then we're ready for staff presentation, Chandler. Thank you, Mark. Sorry I realized that I was not actually signed into the Zoom Meeting, so I'm doing that very quickly right now. Got too caught up in the in-person excitement. And, Thomas, when you see me just promote me, please. Okay.

[22:02] okay. all right. Okay. Good evening. Planning board members, as Mark just said, I will be presenting for staff the proposed Annexation Agreement amendment at 90 Arapahoe Avenue. Just go over public notification quickly with all public notice. Requirements were met written notice was sent to the property owners within 600 feet of the subject site. Notice was also posted on the property staff received several verbal inquiries. Aka phone calls from members of the public regarding the status of the project, but no comments specific to the proposed amendment in terms of the process annexation agreement amendments are legislative and reviewed. Pursuant to section 9, 2, 17. Annexation requirements of the Land Use code

[23:02] pursuant to section 9, 2, 17. Planning board is required to make a recommendation to city council on applications for annexation. The city processes requests the city processes, requests for annexation, agreement, amendments following the same process following the Board's recommendation, City Council will consider whether to approve the proposed amendment at a public hearing. So this is just a map showing the site. The Yellow Arrow. There the site is located on Arapahoe Avenue, at the very far west boundary of the city. The 4 acre sites located along the western periphery of the city limits. At the terminus of Arapahoe Avenue the site had operated until 2017 as the Silver Saddle Motel. The motel was originally built in the 19 forties, and included several attached log cabin style cottages, along with 2 other walk-up motel buildings and a motel office. Several of these buildings have been demolished, with the exception of 3 original cottages and the Motel Office Slash Caretakers Building, that were designated as historic landmarks as part of the annexation of the property.

[24:06] The site is currently an inactive construction site. The surrounding area is an eclectic mix of public lands. A hotel, commercial office buildings and housing. Ebon G. Fine park is located to the northeast across Arapahoe Avenue and city. Open space. Mountain parks or Osmp lands are located directly to the south. The BBC. Land use. Bvcp land use on the site is medium density residential. This is described in the Comp plan as characterized by a variety of housing types. Medium density areas are generally situated near neighborhood and community shopping areas, or along some of the major arterials of the city. The anticipated density is 6 to 14 dwelling units per acre. The zoning on the site which was adopted as part of the annexation as well is Rm. 3, or residential medium, 3, which is described as medium density, residential areas which have been or are to be, primarily used for attached residential development, where each unit generally has direct access to ground level, and where complementary uses may be permitted under certain conditions.

[25:12] So a little bit of background, this property was annexed in 2017, along with the adjacent property, 96 Arapahoe. The annexation agreement requires that 45% of any dwelling units on the site subject to rounding shall be permanently affordable. The agreement, as of now requires that 25% are priced to be affordable to low or moderate income households. 75% are priced to be affordable to middle income households. all the affordable units must be for sale units, and all units affordable, and market rate alike are required to be size restricted to no greater than 2,200 square feet. There was a community benefit package as part of this annexation, which included dedication by the applicant of roughly 2 and a half acres of land to open space and mountain parks.

[26:01] also the landmarking of 2 buildings and a portion of the site. including the Silverside motel, and they also provided the land and facilities for the September school to operate. and that's at 96 Arapahoe. So in 2019 the applicant came in for an annexation agreement amendment. This was approved by planning board and council. To remove required dedication of right of way for a portion of Arapaho Avenue adjacent to both properties. There was also a Site review approved at that time, which laid out the site, plan. and number of units as well as approved design pattern book. The approval included 46 attached residential units, duplex, triplex, and fourplexes, as well as adaptive reuse of 4 of the former cabin style, motel units, and the former motel office and caretakers unit.

[27:03] This is just an image showing the approved Site Plan or the Site Plan that was approved as part of the Site Review at that time. This is a photograph of the site and its existing current state. So, as I mentioned before, it is currently an inactive construction site. It has been inactive since sometime during the COVID-19 pandemic. This is an aerial view showing the site in its current form. I believe this aerial image was taken a few months ago in 2024. But it has not changed. and this leads us to the proposed project and the proposed Annexation agreement amendment. So currently, the applicant is asking to reduce the required percentage of affordable housing units from 45% to 24%. This would reduce the number of affordable units from 19 to 10 units

[28:02] housing would continue to be for sale housing to be owned by income qualified homeowners. The proposed Amendment language would also adjust the required percentage of homes within each defined pricing category. So low and moderate income units where approximately 70% ami would be increased from 25% to 30%, 80%. Ami, I Ami units from 25 to 30% as well. And then 100 120% ami units would be reduced from 25% to 20%. So this would result in 3 low to moderate income units. 3 80% ami units or low income or sorry moderate income, and 2, each of 100 120% ami units. And I can read a little bit about. I mean, the applicant is here, and we'll we'll go into their reasoning behind this. But essentially, since the site's annexation, the residential development market has faced a range of challenges, including escalating costs, labor shortages and shifting demand trends.

[29:08] These have put pressure on project profitability and increased developer risk in addition to these larger market and economic constraints, the developers faced substantial challenges in developing the site, including unanticipated work necessary for rockfall protection. renovation of historic buildings, removal of large boulders and utility work. You can refer to the applicants written statement included in the packet for additional information, but the applicant is now stating that the affordable housing requirements are essentially infeasible, and that the only way to keep this project moving forward is to reduce the percentages as shown here. So it would also include adjusting minimum bedroom and unit sizes. These are just slight reductions in size. no changes are proposed to the requirements for the 120% ami units. It would also allow for 6 of the affordable units to be located in rehabilitated historic structures.

[30:06] This is just a chart. We don't have to look at all of it. This is also included in the memo in your packet, but this is just a chart, comparing the existing annexation agreement requirements versus the proposed requirements. So as you can see, the reduced percentage, the changes in percentages of different pricing categories. a little bit more detail on the unit sizes. And then the unit types and locations. So currently, no more than 4 affordable units may be located in the rehabilitated historic motel structures. and they are proposing to allow up to 6. So the key issue for discussion tonight is are the proposed annexation agreement amendments consistent with the Boulder Valley comprehensive plan policies of annexation and the intent intent of the original annexation terms. So, as you all know, annexations with additional development potential need to demonstrate community benefit consistent with Boulder Valley Comp plan policies to offset negative impacts of additional development.

[31:09] The amount and types of these community benefits are considered as a comprehensive community benefit package through the annexation process. So it is, you know, kind of an open negotiation throughout the annexation process. Staff finds that the proposed modifications to the affordable housing requirements are appropriate, considering the other benefits that were included in the original annexation package including dedication of the 2.4 3 acres of open space land landmarking of 2 buildings and a portion of the site as local historic resources. And the. I shouldn't have said dedication there, and the provision of land and facilities for September school. So, as I said before, what the applicant has indicated and what staff has found to be true is that the affordable housing requirements of the Annexation agreement are no longer financially feasible to implement

[32:06] provision of 24% of the units as permanently affordable ownership units to low, moderate, and middle income households is still a significant community benefit. especially considering that it will be integrated into the market rate housing on the site and increasing the supply of middle income. Homeownership within the city is consistent with Bvcp policies and a number a number of other city initiatives. So this is just an image showing the overall site with the area dedicated as open space to Osmp. and then in terms of next steps following. This is not a concept review. Hearing apologies for that, oops. Okay? Next steps you will make a recommendation, and then this will go to city council, where they will make a final decision at a public hearing.

[33:03] And now I'm happy to answer any questions. Great. Thank you. Chandler. Okay. Entertaining questions from the planning board to Staff to help clarify our understanding of this. or you said you had a lot. You want to start with a few, and then I'm happy for others to go first.st If folks are ready, do they have to be entertaining questions, Mark? That's that's too high a bar. Mason. Me sure. Great. Yeah. So just a couple questions. I noticed that in some of the maps it looked like the property overlapped with the multi-use path I was, and I didn't see anything about easements or anything of that nature. Should I have seen that in the maps? Do we need any smit here. No, I think a lot of that was

[34:02] was handled in the 2019 Annexation Agreement Amendment. I think the multi-use path, or where the multi-use path is now used to be part of the Arapahoe Ave right of way, and that was part of the reason why they wanted to not dedicate the right of way at that time, and we found that it was okay to stay at its current width. I'm honestly not 100% sure. So what I'm hearing is that those easements exist. It just wasn't necessarily clear in the package. Well, all of that was addressed at the time of Site Review. We're not examining those types of details at in this particular application. We're really just looking at the annexation agreement and the percentage of permanently affordable housing. But all of that was vetted at the time of Site Review in 2019. Great. So one worry that I have is that

[35:00] like, obviously, there's a negotiation that occurred that came up to the prior requirements. And then we're kind of going through this process again. And I assume I mean, you indicated that there was a process determined financial feasibility with these levels of affordability within the project. What mechanism exists to ensure that these commitments remain enforceable over time like, can there be performance deadlines or phasing positions, or anything of that nature in the agreement? There's a lot of that in the agreement in terms of concurrency, requirements, and construction timing and stuff like that. So I believe, currently, I mean, Curtis could probably speak fairly well to all the things that are in the agreement. Currently I believe at this point the project is kind of considered out of compliance with the agreement. Right? But it's stalled. So that's that's kind of why they're here asking to change this. But

[36:02] sorry, my, did I? I think I may have missed that. We'll hear about that in the next presentation. Yeah, I'm going to be deferring a lot to the applicant and to our inclusionary housing staff throughout throughout the remainder of the meeting and given. This is an annexation agreement. We're not at the point of suggesting that the Design Advisory Board or any other boards be involved in this correct? Correct? Yeah. Okay, that's all my questions. Okay, Claudia. Thanks, Mark. so I was curious. If the Site Review that was approved in 2019 is still in effect, and want to know if any of the proposed changes to unit distribution and unit size that we're seeing tonight will require changes to the approved Site Review.

[37:02] We think that they there may be some minor changes to the site plan required. the applicants. Aware of that, we're not exactly sure what the process will be. Yet it could be a minor amendment. It could be an amendment, it could be a minor modification. But there are things in the design pattern book that specify, which affordable units go where and what the size is, etc. So some of that will need to be cleaned up. If this is approved, so there will be some changes to the site review. Yes. And then will the Site Review approval from 2019 expire at some point, if construction work doesn't continue like, where are we in that window of time? They, the applicant requested a development extension. So they were granted a 3 year staff level Development Extension. which I think goes to the end of this year, and then would, and then would require another extension. But so it is still valid.

[38:02] Okay? And those extensions are an administrative process. They can have up to 2, 3 year extensions through administrative processes. And then after that, they have to come back to you guys. Okay, thanks. That's really helpful. A couple more questions. So under the current zoning, which is rm, 3, and given the limitations of the the site. Geography is there capacity for more than 40, more than the 46 approved units at this site. I mean theoretically, if it were a perfectly flat and equally developable site. Yes, they are over. They're providing more than the required minimum open space for the Rm. 3 zone. Okay. But with all the infrastructure, improvements required, roadways, etc, and grading, and other kind of natural features. I think they're about maxed out.

[39:00] Okay, would any changes to those numbers of approved units require amending the Site Review. Yes! Okay. So even if they did things in the same building envelopes. That would be out of compliance with the Site Review. Sorry. Are you just asking just if they change the number of units like if they increase the density with. Yeah, exactly. Yeah. Would that require changes to the Site Review? Yes. Okay. I have a question for Shannon or someone from. or is it Sloane? I'm sorry I've got my notes mixed up here. Someone from housing. There was a note in the memo that, said one of the financial hardships for the applicant here is that mortgage interest rates have changed, and that changes the sales prices of affordable homes. I want to make sure. I understand that mechanism. So could someone from housing please explain that.

[40:05] We have Kurt coming up to address us. Kurt, Fernhaubert and Sloan is online, too. So good evening, Hi, Sloan. And. Kurt Kurt Fernhauer, director of housing human Services. So the the sales price of an affordable home of a homeownership home is based on what that income level can afford. So as interest rates go up, the the price of the home goes down. And so that's basically set at the time that construction begins, and so that has an as interest rates, goes, goes up. That impacts the pro forma for the developer. Okay, I'm trying to put some numbers on that. But I'll I'll do some examples myself there and then.

[41:08] Can staff share how the applicant arrived at 24% and or 10 units as the amount of affordable housing that they can feasibly provide? Have they provided a pro forma or some other financial analysis to support that request. I'll let Sloane possibly add on to this, but I'll also mention that we, when we updated our inclusionary Housing ordinance, we had a study done by Kaiser Marsden that looked at different types of development, and which types of development could afford certain levels of affordability. And in our conversations with the developer and looking at the the project as a whole.

[42:00] we felt that with the other areas of community community development which they were contributing to outside of affordable housing. that the percentage was in line with the work that Kaiser Marston had done. With that, said Kaiser. Marston looked at different types of development. None of them are going to cleanly fit any particular development type. Okay, I'm what I'm looking for, though, is is there a financial analysis from the applicant that is supporting that number? Or is this number being suggested by Staff as in line with Kaiser Morrison. And if it's coming from the developer, do we have any financial analysis provided that would give evidence for this being the right number. Sloane, do you have more to add. Sure I can. I'm Sloane Walber. I'm the inclusionary housing program manager.

[43:00] So no. And that is not typically something we would ask for when we started these conversations. Basically, we just wanted to know what is what would make the the project feasible. Right? And then it was a negotiated process. So we were. you know, sort of hoping that we could get near the inclusionary housing requirements of 25%, and then looking at all their other benefits that they had as part of the original annexation. So no, we didn't look at a detailed analysis. Okay, thank you. Those are all my questions. And now I see your hand up, but I think I know I do, and I think Kurt might have a follow on question in regard to the housing affordability number. Go ahead. I'll see if you answer mine or Yes, mine. Thanks, Kurt. You said something in in response to Claudia's question. You said something about the when you were talking about the determination of the prices based on the interest rates, you said. That's set when

[44:13] the project. I forget what exactly what you said, but it said it sounded like at the outset of the project. Can you explain that a little more like are are, then the the prices not? Do they not float through the course of the project as as units are developed and put on the market, and so on. I'm gonna let excuse me. I'm going to let Sloane answer that because she works more closely with that. Yeah. So that's correct. And the intent is that it gives some gives the developer some sense of what they can be pricing the unit at at the onset of construction, so that they're, you know, able to communicate that to their lenders and so forth.

[45:05] So I think it's typically it depends on the agreement, but it's usually when the permit is issued is when the pricing is set. So for this particular case the pricing was set in 2019, or 2020, or something. When. It would depend on the building. So some of the buildings have permits the historic structures their permits to renovate. Those were issued around. Yeah, 2020. Probably some of these buildings probably don't have permits yet. So it kind of depends. I'm trying to look and see. Yeah, some of these units. They don't have permits yet. so that pricing would be set when they begin construction for that, because they are phasing the project. Okay, so, but the so the projects that have not yet been permitted

[46:02] since interest rates have gone up since they did their planning and performance and stuff the the sales, the allowable sales, prices, would go down for units that were already permitted. Those are already those are fixed. And and do we know the numbers of those different categories. Yeah, I'm trying to take a look. So it's mostly the the low MoD and 80% units that you know, a lot of those are in the historic structures. And then it looks like there's 1 building. S is a hundred percent ami, and they got a permit. And December of 2023, and then the 120% ami building. They do don't have a permit for that yet. Okay. And so, how sorry, how many units does that translate to.

[47:02] Oh, how many altogether, let's see, yeah. So 8 units affordable units have been permitted. 8 units per minute. Okay, great. Thank you. Okay. And I, I'm just going to follow up with one, and then we'll go to ml, This is for Kurt or Sloan. So is it correct to say that both housing, that all 3 housing costs, inflation, cost, and interest rates have increased. In our census area, or however, we measure it faster, substantially faster than the mean income. So if we are tying affordability to ami, then the external factors. All things being equal, not all things being equal, anyway, the external factors have increased faster than

[48:03] the area mean income. so I think I understand your question, I'll give a analogy. So for our rental housing, which we subsidize. So 5 years ago, we were subsidizing between 80 and $100,000 per unit of local funds. Now, we're subsidizing between 130 and $150,000 per unit. So that's a that's a that's a portion of the cost. So the actual cost have gone up much higher than that per unit. So the I think what you're asking is has the cost of building, the affordable housing gone up faster than the the Median income or the area median income rates. And that absolutely, that's correct. It's it's becoming harder and more.

[49:03] It's more financially challenging to build affordable units as time goes on and and takes more resources. Right? Great. Thank you. That does answer my question. Okay, Ml. Thank you. So I have kind of a bit of a follow up question on on the units. So part of this these changes are changes to the sizes of the units. Is that correct? And are any of those that have are going that are in that category of changing the size. Won't they need to get a new permit if the permits have been issued because the units have changed. No. So in terms of affordability. That that doesn't really come into play necessarily in the building permit review unless you're going.

[50:05] You just have to prove that you meet the city's livability standards for affordable units. So that doesn't necessarily mean that they would have to revise their permits. So if the building permit is for a different size unit. it wouldn't need to be revised. So it didn't. Okay, so yeah, so for some clarification, the actual unit sizes. At least, my understanding are not changing. It's just changing from what was a market unit to an affordable unit. So he's that basically, they're just shuffling around where the affordable units are being provided in the development and numbers. Shouldn't you. Themselves aren't substantially changing, which would impact. No, and some of them are already affordable, and some of them were market, and will now be affordable, and then some of what were affordable, will now be market. Okay? So a prior question as well. Talking about the the approved Site Review.

[51:05] is there any change to the density based on these proposed changes? No, it's just a shuffling of affordability. Okay, that's what it sounds like. And at the beginning it refers to the intent of the original annexation terms wasn't clear on where? What if? What was the intent of the original annexation terms in order to answer that question? Here's just key number one is the proposed annexation agreement amendment consistent with the Bdcp. And the intent of the original annexation terms. So the original annexation terms are the percentages and the number of units and the location of units. Is that correct? Yeah, I mean, I think it's very discretionary. I don't know if it was stated outright. This is the intent, but I think it was having

[52:05] on site for sale, affordable units, and a variety or a range of affordability and sizes. And so I think that's still met, and they're still also meeting all these other community benefit. Okay. Listed in there. Speaking about community benefit is september school, a private school. They are a private school, and although they are sort of tied together through the annexation, it is a very separate property. So we're not changing anything, as it pertains to the 96 Arapahoe. It was just a stated community benefit at the time of annexation, that they were providing a space for them to relocate. And so providing a space for a private entity. How is that a public benefit. I can't speak to why the rationale was. I think, that it they were. They serve a very specific population of students, and that was felt that it was a very large community benefit to keep them in operation.

[53:12] Yeah, it's 1 of the longest standing nonprofit schools in Boulder. They were losing their property downtown. So I think at the time keeping the school and the community was very important in council at the time. Got it. Okay, thank you for that. That makes sense. And then my last question, and this I'm trying to remember. It seems like we made a change to the inclusionary housing calculations in regard to exempting existing units on site. Did we not change that? I thought we had. So this is, this is an annexation. So it's though that consideration is very separate from what we would typically consider

[54:04] in inclusionary housing, so in this case they were allowed essentially a credit for existing units on the property. Right it is that, did we amend our process to no longer have that exemption. Or inclusionary housing. Project. We looked at another project on Arapahoe and then I think that we amended the the policy, so that there would not be an exclusion of existing, especially if they were going to get Re! They were gonna get rebuilt or reused. They were still gonna be. They were still gonna be providing housing. So why weren't they counting? Did we? Didn't we change? That? Is that not, in fact. It's only for the. For if if this is a project through inclusionary housing, it's only projects 4 units, and under that that would apply for

[55:05] and so that you will be seeing me in a couple months to talk about a possible impact fee on those types of cases. But if your project total project is more than 4 units, then you typically wouldn't get a credit or a modification board. So. Thing. So is this project getting exempt for the existing buildings, the historic buildings that are getting reused. Well. Not counted into the into the. No, so it was only what we're. It wasn't any of the motel units. It was what we're actually considered dwelling units on the site. So yes, they received a credit, if you want to call it that through the original annexation terms. So that was part of the negotiated outcome. and. Is that being impacted with this current annexation update amendment.

[56:03] It. Only it does in the sense that how that percentage is calculated does take into account those units that were considered existing on the site I'm trying to look. I think it was 3 units, but. Yeah, it's 3. It's okay. Thanks. Chandler. Yeah. So they are being included. Yes. And I believe those are all my questions. Thank you so much. Great. Thank you, ml, Laurie, you ready? Sure, and thank you, Chandler, for that presentation, and thank you, Sloan and Kurt, for all of the great answers to the questions so far. So a follow up on Ml's question about reducing unit size. Chandler, could you pull back up that chart that you had that talked about that it was like a table. because because now I'm confused about that. I also understood that some of the units would physically be reduced in size, but it sounds like they're just that the site plan, the unit sizes that were approved will stay the same size. It's just juggling which ones are in or out of the program. The inclusionary housing program.

[57:17] So so that reduction in size is just so that they can use units that are in different buildings. That might be smaller units. I believe so can I colloquy on this? Because that is sure not what I'm seeing in table one. for instance, table one says 80% units. Previously, 50% were no less than 1,200 square feet, 50%, no less than 1,400 square feet. Now, the 80% units no less than 600 square feet, and there was no 600 square foot tier before then, the remaining no less than 800 square feet. I'm just going to let the applicant respond to the questions about the unit size. If that's okay with you guys units that were that size, I don't know. Okay, so.

[58:02] Yes, that's correct, Laura. They were market units. So that chart is showing what the actual annexation terms, how they're changing. But in terms of the physical sizes of the units in the buildings. My understanding is that's not changing. They're just changing what was a market unit into an affordable unit. Okay. Alright. I'll ask the applicant, too. But thank you. Okay. Yeah. Okay, back to some questions. So one of the benefits that was talked about was the open space dedication. So I had a couple questions about the open space. So the area that was dedicated to the city as open space with, you know, capital letter. Open space. Did that also count towards the Site Review requirements, the development requirements for Little O open space within the site? No. so that's carved out of the property. And then they still had to meet their open space requirements on site. Correct? Okay, that's good to know. And then my question is, if the 2.4 acres of open space had not been dedicated. Would that land have been developable? Or is there some reason why it's not very developable, like topography or floodplain, or something else? Yeah, it's pretty steep and rocky. I can let the applicant go into further detail if you'd like. But

[59:15] the way it's kind of described in the original memo is that it provides a promontory and a backdrop for the housing. Osmp. Wanted it because it's adjacent to Osmp land, and that's part of a city policy to get more if it's adjacent and we're annexing. But no, it wouldn't have been developable otherwise. Okay, do we have a photograph of that? A picture of that that open space land. Because I've walked this. I've walked by this site, and it is like a very steep hillside behind, where the roads and the buildings are. Is that what we're talking about? That steep hillside behind the houses? Yes, okay. But I don't have a picture. I can look for one. But I'm going to have to stop sharing. So I can Google search. That's okay. All right. Thank you. And then I have a few questions regarding the landmarked buildings. Chandler, could you pull up also from your presentation? You had a slide of the inactive construction site, and it showed a building that was kind of just

[60:07] what do you call that? So these are the adaptive reuse buildings. I'm losing the term. It's not clapboard. It's like particle board, or something like that plywood. Yeah, it's just plywood siding plywood. Can we show that? Sure that picture? It's actually Osb oriented strand board osb oriented strand board and the and is there a roof on that building, or has the roof been taken off? Looks like both it? I mean, it looks like there's a roof, maybe with some holes. Okay. but it doesn't have like shingles or anything on top of it. It's like a particle board or Osb, with some kind of protective paper on top. It looks to me like it's got. It's it's a rough tar paper without, and the shingles are

[61:03] stacked up there, and it's like the roofers went away mid job. Yeah, okay? And that's 1 of the historic buildings. Right? That's the old motel, I believe. So. So I guess my question is is this. if we're trying to do historic preservation. Is this a typical level of renovation of a historic structure? I mean, it seems to me like there's not much of the exterior building left. I might also just defer to the applicant on that one. He's probably much more familiar with the the details of the construction project. Currently. Okay, all right, thank you. And then, once the units are sold, do I understand correctly that the responsibility for maintaining the historic facade of the exterior buildings will fall on the new owners of the buildings who have purchased those structures. I think. Yes, for market rate, for affordable units. I might defer to Sloan or Kurt

[62:01] in terms of maintenance responsibilities so affordable housing units in a historically landmark structure, who maintains the exterior of that building? Could you just turned it off. I may refer to the applicant as well, but typically they're depending on. If it's a townhome or condo, or or what the legal structure of the the land, and the housing is so some of our referral units. They take care of the outside, and sometimes some of them they don't we have a similar project a couple blocks east of this, where there was affordable units built in a in landmark buildings. and they're responsible for the outside of the building. Okay? And that was going to be. My next question is, are there other affordable units that are in landmarked buildings? And how's that going from the perspective of the city and the property owners, because I know that

[63:02] one of the complaints that we sometimes hear or concerns that we sometimes hear about the affordable housing program is the cost of building maintenance when the property is not appreciating. Yes, so the the only feedback that I've received from those residents was the challenge of, or or impacts of the design of the home being built into a historical building. You don't have as much flexibility on the the footprints sometimes where the windows go. So it's sometimes the the designs are more constrained within a existing historical building. I haven't heard anything from those residents about the the upkeep of the buildings. Our biggest concern that we we get on a somewhat consistent basis is the the Hoa fees, which is a direct relationship to the the upkeep of the homes.

[64:07] Okay? So I think I'm hearing you say, depending upon the ownership structure. It could be. The individual owners are responsible for maintaining it, or it could be the overall hoa for the whole property. That's correct. I mean, typically when they're standalone units. The owner is responsible for the for the outside upkeep, though. Okay, but these are not standalone. These are one's a duplex, and one's a quadplex. I think. yeah, that's correct. Okay, all right. Thank you. Yep. And then my last question with regard to landmark buildings is, what's the process for reversing a landmark? I don't believe there is one. Brad appears to be coming to the podium. Laura, are you thinking that there is a reversal going on here? No, I think that that may be something we want to consider to ease. The burden on the applicant

[65:03] is reversing the landmark. If these buildings are basically torn down anyway. But, Brad, it's something to discuss. Brad Mueller, director of planning and development services. So landmark designation can be reversed by review of the Landmark Board. They can also alter some aspects of the designation. I would kind of counsel the planning board not to try to read the minds of the landmarks board, and and again, the applicant may be able to speak to their conversations with historic preservation. Form and function often is, is as much of the consideration as anything. So I would. you know, recognize that that's kind of a different purview. Understood? Thank you, Brad. I definitely will ask a question to the applicant about that as well. And then just a few questions about the Ih program. The inclusionary Housing program. The Annexation agreement specifies that the implementation of the affordable housing requirement will be consistent with the city's inclusionary housing program, except as modified by this agreement.

[66:05] Sloan or Kurt, could you walk us through what those modifications are like. In what ways is this agreement not consistent with the city's inclusionary housing program? If any. Well, I I it's not consistent with the 25% and the Ih program for for sale would be at middle income. So in in many ways this is much more restrictive than Ih. It's at a deeper affordability. There's also the requirements that they have to be similar in size as the market units. So we're giving them a little bit of leeway on that. So really, that provision and the annexation agreement was put in to make sure that it was clear that livability of units is still going to be reviewed. All the other provisions and Ih would be reviewed. It's not giving you a pass from all the other

[67:05] inclusionary housing restrictions. It's just just the things that are listed in the agreement. So when you go to that part of the annexation agreement. And it lists the affordable housing requirements. That's essentially what's being modified if that makes sense. Yeah, okay, thank you. Yeah. And then just a couple of other. Well, I'm going to hold those for now, because they may not be relevant anymore. And then for annexation annexation agreements that we have arrived at post covid. What percentage of affordable housing have we required in annexation, which is different than the normal inclusionary housing program. And I'm looking there for an average and maybe also a range of high to low. Yeah. So you know, we don't see a whole bunch of these. So the projects that we have reviewed Post Covid, we're Peacock Place.

[68:03] you know, in southeast boulder, and that was 40% affordable. And then the 28 0, 1 J road, which was 30% affordable. One thing we've noticed, too, is, we sort of had this policy, or, you know, sort of informal direction, that we would try and get between 40 and 60%. So we've had situations where we asked through that. We asked for that through annexation. But then, once the project actually went to the development phase, it was infeasible. So we have sites sitting out there that are not able to be developed because the affordable housing requirements are just too onerous. So I think that's why we're, you know, trying to look at each property on a case by case basis to see what's you know what is an afford a reasonable amount of community benefit. Okay, that's useful, that the most recent properties have been 20 to 30%. And then, lastly, for Ih, the for sale ownership properties in inclusionary housing, especially at that middle income level. Are those selling well? How are those doing in the city's inventory?

[69:14] I don't know if I can speak in detail to that. Kurt probably can, but I would say, what for annexation, I think what is a little unique is that most of the units are new build, and I think that's a little that's desirable for middle income families. But, Kurt, I don't know if you want to talk about the other middle income properties. Sure. So Over the last 9 years that I've been here, we we have not had that challenge. We've only recently had some of the units selling slower that are older units, and they're taking sometimes 2 to 3 months.

[70:01] But we haven't had a challenge with with newer units. However, I also mentioned. We haven't had newer units in a while, either, at this price point. Okay, thank you. I'll stop there. Okay, Kurt. thanks. And thanks to my colleagues for the questions. I have a few follow-ups and additional questions. The 1st is a follow up to something, Sloan, you said in response to Laura's question. I was a little unclear. You were talking about the the units here. I thought you said that the units here the affordable units, were similar in size to the market rate units. So if you build, if you just build a condo building, for example, I mean, we don't really get condo buildings, but a rental building, for example, rental apartments. And you're building on site. You're providing on-site affordable units meeting the 25% requirement.

[71:08] Those are required to be of similar sizes to the market rate units. Is that correct? That's correct, comparable in size and comparable, you know, in quality as well. Right? Okay. But here, what we're seeing is the, as I understand it, the market rate units are up to 2,200 square feet. and the affordable units start as small as 525 square feet, and then there are tiers of 600 2,000 1,400 or something. So they're not remotely similar in size. It seems to me. Yeah. So 2 things. The 1st thing is that's why I was trying to make the point that they are not meeting, that Ih requirement that that would be a special negotiated provision through the annexation agreement.

[72:01] The second thing is that we do follow that, but we also realize that there is sort of a size limit to what we would want an affordable unit to be, just to keep the pricing actually affordable to someone at that income, because the pricing level will increase as you increase bedrooms and size. So it's not too often that we have an actual affordable unit that's over 2,000 square feet. If that makes sense. Yeah, yeah, okay, thank you. It sounds like I misunderstood what you were saying. So. Sorry if I was unclear. Yeah. Yeah. that's great. Another question. And maybe this is for Chandler. You said that the as far as you know, and I can follow up with the applicant about this, but the project has been, the construction has been inactive since 2021, or 2020, 2, or something. Do you know how, when it's been. Well, I just moved back to Colorado in 2022. So if it happened before that, I don't know 2024.

[73:04] Okay, Curtis has confirmed 2024. Okay, it has been inactive since then. Okay. there was more along the lines of my recollection. And when did the city. Receive this application for an amendment to the annexation in 2024 in 2024. Okay? Right? Yeah. Okay, thank you. Yeah. You just double check. The case number everyone. 25. 0, beginning of 2025. Okay, yeah. The other question is that a number of staff members have said that they feel that this amendment is justified because, given the various kinds of community benefit, that's not quite the right term, but benefits that are coming in terms of the dedication of the open space and the provision of space for September school, and so on, along with

[74:09] the affordable housing, that that it is a good deal for the city, and my question really is, hmm! If if 24% is a good deal for the city. would would it have been a good deal in 2017 when this this was 1st negotiated. and if so, why wasn't the number set at 24%? Then I'm just trying to get at that calculation. Anybody want to take that. I mean, I think I would say yes, it would still would have been, you know, a good community benefit. At that time

[75:00] I think that the market has changed enough that we were able to ask for higher affordability Pre covid. And the developer could actually build. And now we've gotten to a point where you know getting onsite for sale affordable is a huge community benefit to meet our. You know our policies and goals. So I can't tell you why. That wasn't. you know, considered at that time. but I think then and now it you know it's still a very good community benefit. I'll also add that there were some annexations that went through sort of in that time period that have not successfully developed, that were at a higher rate as well. So I think that in partly through the things like the Kaiser Kaiser Marsden study, we've seen that

[76:01] the affordable housing requirements. That the city was was negotiating at that time were probably too high. Great. Thank you. Appreciate the responses. Ml. Thank you. I I have one follow up question to the line of questioning that Laura was making about the historic buildings. Has their the fact that they are in the state that they're in has that impacted the viability of reusing them. So I would like to just that picture that was taken. I think everyone's assuming that that's like the exterior walls having been torn off. That might be a protective cover over the existing historic structure. I'm going to let Curtis discuss this further, but I don't think we're just letting them rip down

[77:09] the historic structure and then rebuild it like it is landmark. They do have to go through, you know, the permitting process for it. So we have really strict regulations that apply to landmark structures. So I feel like, maybe this, this picture is is misleading in some ways. I, yeah, I I have also walked by that side. And it it does look like a construction abandoned halfway through. Which, of course, leaves the building vulnerable. So and so sorry. So what's the question? And so I'm just curious as to Do we know that those buildings will remain viable for reuse. Given the construction, the pause in construction and kind of the abandonment of the construction process.

[78:03] I'm hearing you say, though, that you think that what we're seeing well on the roof? We're not seeing it being a protective layer, because it clearly looks like the roofing was in process, and it it. People walked away. So I I'm just curious about about that. Should should it come to the buildings, in fact, are no longer viable. What happens to this agreement. I'm not sure that might be a landmarks board issue. I'm not sure what happens if you have a landmark structure, and then you let it fall apart. But I'm sure it's bad. Just want to make a point of clarification that in general we have to operate under the idea that applicants follow our building code, our landmarks, code. etc. and correct, and that so far

[79:00] do we have any evidence to the contrary? No, okay. So this is just what I was wondering, just because of the physical evidence is the physical look of the building. I'm just curious. Should, should they become unviable? Does this impact the agreement. Okay. Quad. Yes, it would. Okay, that was my question. Thank you so much. Claudia. Thanks for letting me have another bite here, Mark. I did have one more follow up question about the proposed affordable housing mix, and I understand this was a negotiation with the city, and I was curious if there was any discussion about increasing the percentage of middle income units as a way of keeping that overall percentage of deed restricted units at or closer to 45%. Like, I understand, where you ended up with kind of keeping that spread of low, moderate middle. But was there any other scenarios or mixes entertained as you tried to renegotiate this.

[80:13] not necessarily, because when you know, we were looking at it as meeting the intent of the original annexation, and I also think we were looking at what made the most sense for these smaller units in the historic structures. you know, the larger middle income, or more family oriented. This might be really good for a young professional, or, you know, a couple. So I think that's how we were approaching it, but that it would be a different, you know. Approach. we were also just yeah. We were, you know, negotiating with the developer and what they thought would work. And this was their proposal. Sure, so would it be correct to say, then, like as you were thinking about the intent of the Annexation agreement with regards to affordable housing, that that mix of affordability was an important part of the intent, perhaps more so than the overall number or percentage of affordability.

[81:13] Yes. Okay. Thank you. Okay, I. I have one question and This is in regard to the differences between annexation and site review. In a Site Review. an applicant may come, get a do a set of drawings get approved at site review, and then their company goes belly up, or whatever. and the site review is no longer after a certain period of time the Site Review is no longer valid, so they would come back to us. So someone else buys the property wants to develop it. They just come to us with a new Site Review request under current site review guidelines in an annexation

[82:09] where we've negotiated this agreement, and I'm not trying to denigrate you guys or alarm you or anything but annexation agreement. Let's say these guys just went out of business. What is is is, and someone else eventually bought the property. The property goes to the bank. the bank sells the property. What would the process be for a new applicant. Do they come to us and say, I, I want to modify the annexation agreement like what we're doing today. or at some point, is it just become part of the city in that zone, and they could begin at the Site review process, not at a not at a modification of a prior annexation agreement. So, like all great planning responses, it depends. And it depends on how the agreement itself is drafted.

[83:11] Generically, an annexation agreement would run with the property in perpetuity. Unless there's provisions in the annexation agreement that have time specific triggers. So by X date you'll dedicate Y by X date, you'll install X amount of infrastructure. so if the agreement lays follow and the terms of the agreement aren't satisfied over time. Then a property owner would be in violation of the agreement itself, assuming it didn't have those sorts of provisions that have time sensitive triggers in it. It would just run with the property forever. In which time, then, an app, a new applicant or property owner could come in file an amended Site Review as long as they were meeting and satisfying all the the terms of the agreement, they could move forward without reopening the agreement.

[84:09] Okay, going back now to the specifics of this agreement. If if this this property was under different ownership, a bank, let's say. And Does this agreement have any allowance for that kind of future change? Or does the Annexation agreement run in this annexation agreement run in perpetuity. So so. okay, yep, it would run with, the property. Yeah, thank you. Okay, that's my only question. Does anyone else have any final final questions? Okay. great. We're going to let our applicant, who, I think, just left the room for a minute.

[85:07] Yeah, Okay, I'm going to ask one more and then and we'll let him get ready. We're we're just about ready for you. I was looking at the fees paid by the applicant for various things listed in the in the packet. Do we consider? Annexation having cost the city something, or is is the idea that the negotiated Annexation agreement. aside from the obvious community benefit of the open space land and everything but our costs in creating annexation documents and doing whatever engineering work and so forth. Is that is that something that is a cost that's incurred? Or is that a cost that's covered by the development.

[86:04] in the Annexation agreement, the services that we provide and the administrative work that we do to process the application is covered by the fees. Great, thank you, or at depending on the once again depends, but depends on the application type. It could be a percentage of the fees. But again, generically, development is is paid for by the fees. Our work is paid for by the fees. Okay, great. All right. We now are ready for the applicant to come. Talk to us. Give us a presentation, whatever you you plan on doing. I'm going to set my timer for 15 min, and if you don't take that long, that's also appreciated, but I'm sure we'll have lots of questions for you. So good evening.

[87:01] Wait! Did it go out? Yes. my name is Curtis Mcdonald from Louisville, Colorado. Thank you for hearing me out today. This is a process that started 12 years ago, took 4 years to get the annexation approved then a couple years to get the Site Plan approval and then some time to get the tech. Docs approved, and at the time when the annexation was approved, based on the low interest rates, the price that could be paid for the affordable units and construction costs. At that time it was optimistically possible to make it work. And I began, you know, as in order to get the annexation agreement approved, I had to, prior to getting annexed, demolish the motel buildings and do the asbestos remediation.

[88:03] It costs about $350,000. So you start to get vested, including all the money that I spent with the various reports and studies. It was a considerable cost. And so we just kind of got to the point where, okay, we're into it. Let's do it. We began the on-site construction with the Anderson ditch that was in January of 2020 that we started. That construction had to happen in a tight window, and I'm just giving you anecdotally some of the things I ran into the ditch was approved to be buried in elliptical, reinforced concrete pipe. Then, several weeks before we started construction. the ditch company said, No, we have to change that. We have to make it now. An on-site custom poured box culvert. So the cost of that went from 400,000 to $850,000.

[89:07] So okay, let's just keep going. And then we began the infrastructure work prior to Covid, and we ran into. you know, and we did soil borings that showed that you know good penetration with every boring. But then, when we actually started digging on the site, we had to export over 2,000 tons of boulders in order to prepare the site, and I'd say. you know, and there's a variety of things that happened. But probably the key problem we faced is with the historic structure. What you see in the picture is. we had to take off the siding that was on the structures, most of which is rotted, and

[90:06] then cover the structure with the sheathing which you see. and then the idea is, you put the vapor barrier on and put new. Put the siding back on. So that's why the building looks the way it does. You only see about half of the structure. We pushed out the back new structures, and it, you know, add-ons to what the historic structures are, and you got the sizes a little wrong, the the bungalows or the inline structure, the fourplex. Those will actually be about 720 square feet. and then the 2 units in the old office will be about 860 square feet, but still one bedroom. We. The cost, overruns on the historic structure so far, is 1.3 million dollars

[91:01] at the time we vigorously resisted landmarking those structures. But we met with no success. So again, we just accepted and figured we've got to do it. So we'll do it. And when we got into it we realized that the entire foundation had to be basically rebuilt from underneath. And you know, the building was we encountered a lot of rot. The only thing about the historic structures that's going to be remain is the actual. You know the structure itself, which we've reinforced, the 2 by fours and the trusses, and so forth. We had to put sheathing on per code. and then we'll put the siding back onto it. But most of that is going to have to be remanufactured and milled, because the siding that was there is just not usable at the end of the day. It'll be a good solid structure, and you know half of it is new construction.

[92:01] and the part that you see will be done properly according to code. It's just that the cost of those historic structures on a per square foot basis will exceed the cost of the new market rate homes in the development. The new market rate homes. The cost on those has increased to about 650, $660 a square foot at the time when we were. you know, starting things off and planning. That was in the 400 s. So, rather than you know. Go through a lit well, do a couple more litany of things. you know. Excel. Energy went in there, and we were very precise about where they should put all their utilities. They ran their utilities right through the middle of 3, where 3 buildings were supposed to go, and during the construction process, when we started to do the vertical construction.

[93:01] we said, this has to be moved. Of course they charged us to do that, but it took them 6 months to come out and decommissioned the electric line so we couldn't do anything on that spot for about 6 months. When we went to get a design for a little piece of rock, fall protection wall behind 2 of the buildings, because there's rock outcropping and the hill above said, design this for us. The geotechnical firm who did the original study said, we we actually think like that rockfall fence should run the whole perimeter of the property on the West side, so it quadrupled the length of that and increase the cost from a couple 100,000 to closer to $800,000. So we ran into a lot of stuff like that. But I think that I think we got more unlucky than you usually might run into in a development, but

[94:02] a lot of that is to be expected. But the real thing that hits us is the, you know, order of magnitude increase in cost for both the affordable and the market rate structures and the corresponding decrease in the price we can charge for the affordable housing. And I think if I'm will correct me, I think what the affordable ami does. It sets the amount of the mortgage. In other words, if you have this ami. your mortgage has to be fixed right here. and so, if interest rates go up, everyone else's goes for a new mortgage. They they pay more for their mortgage payment. not in the case of affordable housing. You have to reduce the cost of what you can sell the home for. So at the end of the day. you know, with everything we've done to analyze. You know where we are in the project.

[95:01] We need to bring the number of affordable homes in line with what is a 3rd party? Study the what is it. Kaiser Marston? I mean I was. I was gratified to hear if there's any silver lining that they came to a conclusion that's roughly congruent to my own. So one thing I'll say with regard to the easements, and that is. the multi-use path was built in the northern half of the Arapaho right of way. So that remains, we and the in the Annexation agreement modification of 2019 half of that right away was dedicated to the project. The other half remains. And that's where the multi-use path is. So that's you know, to that point. and I'll take questions. Great. Thank you for telling us about your situation. Okay, clarifying questions, questions from the board.

[96:12] Laura. Thank you. Thank you for coming to speak with us, and thank you for your thoughtful response to some of what you've heard previously. Could you tell us more about the minimum sizes that you're asking for that adjustment to the minimum sizes of the affordable units that was described to us as the unit sizes on the property are not actually changing. It's just that you're changing which ones are affordable and which ones are not, and that juggling of which one is where resulted in smaller unit sizes. Correct. Okay and go ahead. Well, what it meant, you know, of the 6 historic units? 4 were affordable from the beginning, and we're proposing that the 2 Marker bay units that were in there get pulled out. and those 2 become affordable units. And then we switch those 2 Marquery units to another building that was going to be affordable. But then those market rate units will be larger at 1,400 square feet. Because that's building. We already started to build

[97:16] 2 affordable units. Okay? And thank you. That leads to another question, which is. why are you asking to locate more of the affordable units in the historic building? Because the automated way to make the project work is to maximize the value that I can get from the marker a units and those as Kurt mentioned, there's they're going to be fine, those those units. They're going to be nice. Everything's basically going to be brand new. It's kind of ironic that we would call them historic, I mean, I guess there'll be a few original pieces of siding slapped on the outside, but for all intents and purposes they're completely redone.

[98:00] and so they will be new units, and they'll just be smaller and not something laid out the way you would do it from the outset and to sell to market rate units at 720 square feet versus being able to sell 2 market rate units that are substantially larger and brand new and more conveniently, and more of a modern layout is what I need to do to make the project work financially. Thank you. And could you tell us more about the hoa structure? Is it one hoa for the whole development? Or is it like each building has its own Mini Hoa, how are those I'm specifically concerned with. Who's going to pay to maintain the historic units? Is it just the people who live in those units as a joint hoa? Or is that responsibility distributed amongst the whole property market rate and affordable. The Hoa owns the land right up to the edge of every building.

[99:06] The buildings themselves are owned, fee simple by the occupants of those buildings. The Hoa has no involvement with the building, the repair of the building. The Hoa only maintains the roads, the landscaping common areas. Okay, so for those for those affordable units, then it would be the individual owners would be responsible for their own exterior maintenance correct, and their own roofs. Yes, okay, and it won't be a mini hoa. There'll be a party wall agreement amongst the occupants of that structure. Okay? So every individual unit. You're responsible for your own exterior maintenance. Well, the party wall agreement will state that, for example, in the the the 2, the office building with 2 units. It'll state that the roof in the exterior. if there's a problem with that, regardless of where it occurs that has to be borne equally by both parties. Gotcha. Okay.

[100:07] okay. Can I? Please go ahead similarly? Is insurance on these buildings handled in a similar fashion? Yes. and I know that Brad cautioned us about talking about reversing the landmark. But if you know this is an annexation agreement, it's a negotiated settlement between the city and yourself. If the city like this board made a recommendation, and Council was interested in reversing the landmarking. Is that something that would be a benefit to you if those buildings were no longer landmarked 8 years ago. Yes. like, I said. We've already sunk so much money into the preservation of those structures, and that at this point it would.

[101:01] it would be prohibitive from a cost point of view. We'd be tearing down what we've already spent a lot of money on. You know the back. Half that you didn't see in the picture is all new construction. and you know, tearing down new construction that you've already paid a lot of money for, and you know and I will tell you. I tried hard, you know, when we 1st did our annexation, because I could see these buildings. It just the amount of money it's going to take and what you've run into you just don't see it yet. And at the time landmarks was in the ascendant, you know, and and I understand I'm not against landmarks. I'm I would like to suggests that practicality and cost factor into the preservation of landmark structures, but at the time practicality and cost did not factor into it, and so I had to do it.

[102:01] Thank you. So I so I guess more to the point. If at this point in time you did not have to use historic siding, historic windows, historic roofing materials. Is that any benefit to you? Or if you're already, you're all in on the landmarked buildings. I think that there could be some savings if we put a different siding on it, but that that raises another point. and that is in the project we're required to make the exterior features of the historic structures of comparable materials to the market rate structures. the market rate structures in the project we're using. You know, they're going to be on the luxury end, even though they're rather small. So we're using very high end features on the exterior. and the cost of the cost to the affordable. The new affordable structures that we build

[103:00] is about $55 a square foot. So it's it's a considerable cost. And that's another factor in my equation of why I need to reduce the number of historic structures. But then, going back to the historic landmark structures right now we were we would put on a combination of existing half log siding, plus probably a majority of newly milled half log siding that exactly matches it. If we say that's really the only way we could save some money, I think, at this point. And the alternative would be, use materials that match the other market rate structures in the project which would actually possibly increase the cost of that. Okay, thank you. That's it for me right now. Kurt.

[104:01] thank you. Let me follow up 1st of all on that question. You were saying that you were using high-end features on the exterior of the market rate units, and that, I assume, is prescribed in the design pattern book. A lot of it, is there? Yeah, okay. And would it be beneficial to the the the financial viability of the project to modify that? Some of that in the design pattern book? The answer to that is, maybe yes, maybe no. In other words, we've already got baked into all the the pricing that we've done, the architectural design. The architects selected certain features, the the some of it, you know. The detail of the architectural detail is already set, and that would have to be changed. My level of expertise doesn't go too deep into your question, but I don't think that

[105:07] that would accomplish that much, and I think there's a merit. you know, even with the reduction of affordable housing that we're talking about. There's merit in keeping the market rate structures as attractive as we can, because that's how we pay the freight, you know. getting as much money as we can charge for the market rate structures. Okay, thank you. Appreciate that. The other question is sort of looking at the big picture. If we were not to approve this amendment to the annexation agreement? what, realistically would happen to the property? I assume that you would not be able to continue. And I assume that you have some sort of financing debt financing, and it would go to the lenders. Is that correct. Okay, okay.

[106:06] that's good to know. I think that's all. Thanks. Okay, Claudia. You've got your hand up. Thanks. I think my question follows on a little bit from where Kurt started. And that is that so? You're asking for relief in a fairly specific form here, and that is by reducing the percentage of affordable units and shuffling their sizes right without any changes to the total unit, count on the site, and I just want to ask why you have specifically chosen this approach as opposed to using other levers for cost savings, such as as Kurt suggested, requesting changes to the design pattern book, such as shifting affordable units to a higher ami, or requesting to increase the total number of units on the site. So how did we arrive at this particular approach to cost savings, as being the most desirable or feasible one.

[107:14] Okay in reverse order. As far as the number of units on the site. all the site work, except for the paving and the roads has been done in, you know, just in terms of some of the costs, you know. There's. you know, 2 million dollars of retaining walls and drainage channel that were constructed. Storm sewer is constructed, and, you know, goes under the multi-use path and discharges into Boulder Creek water sewer electric except for where it has to be moved. All the site work is done, and all the water lines into the buildings are stubbed in, the sewer lines stubbed into each building are there. And so

[108:01] the the infrastructure, you know, is is over 10 million dollars of expense, and that's already baked in. And it's specific to that Site plan. So I think changing the Site plan and the unit density is not feasible. The second quick middle question was changing. The ami upwards of the units is a nominal amount of increase in price. It's it's we're talking $2030,000, or, you know, $1020,000. It. It wouldn't do enough, even at the existing level of affordability. to offset the cost. For example. if we actually gave the true true cost of the affordable units, and assign a prorated share of the site work to the affordable units. That's $260,000 per unit.

[109:00] Well, we're not doing that, our performer. We're saying that the land for the affordable units is free. But in truth, you know, there's just a real considerable expense involved in, you know. the affordable units, and the cost far outweighs the increase that you can get from shifting up to the next level of Ami. Another thing that actually the city of boulder might want to consider is that I did a calculation of building permit fees for the market rate units and the affordable units, and on the market rate units for one duplex. The building permit. Fee is $140,000, and that amount that equates to 32, $32 a foot. So for the market rate units, the cost of the Boulder building permit is $32 a foot for the affordable units.

[110:00] For example, duplex d, we're just using as an example. The building permit is $89,000, and that building is smaller, that's, you know, affordable units smaller. And the building permit fee per square foot for the affordable units is $32 a foot. It's the same as the market rate units, and it's an extremely high building permit fee if you add the cost of insurance. You know. Just kind of soft costs costs that you just have to pay and don't see anything. The increase in cost in the exterior finishes is $55 a foot. The cost of insurance is about $11 a foot. The permit fees for the affordable units. $32 a foot just in those costs. That's $98 a foot.

[111:00] So cost of building affordable housing. And you know I'm my total cost of building new affordable units is close to $500 a foot. The historic structures exceed the cost of the mercury units. That's well over $650 a foot to reconstruct those buildings. And so it's not that I'm it's just just the way it is just the way the costs have escalated, and what it takes to build these things. it's humbling. I did not expect to be here after 12 years, and with my handout. But you know I'm giving you my most authentic kind of assessment of where we need to be great. Thank you, Claudia. Any other questions. That's what I was looking for. Thank you.

[112:03] Okay, other questions for the applicant. I have one more question. The annexation agreement prescribes certain provisions about the parking, the amount of parking, and that that garage there would be garages. I assume that there would also be no benefit in modifying that at this point, given the design and site work that you've done. No, it's and it I don't think so. I mean, I hear you and I do appreciate everyone, especially saying reversing the historic housing. I sure wish we'd had this discussion 10 years ago. But here we are. Yeah. okay. It is now time, for we're going to thank you to the applicant for your presentation and discussion. Very informative. We're now going to go to our public hearing

[113:04] and thank you for turning that off, and I don't know if there's anyone in the room who wants to speak to this issue. Have you? Nope, okay, is there anyone online? And Vivian signed off for for the night. So I'll help with online participants. We do have one raised hand if anybody else would like to speak. Please go ahead and raise your hand so that we can get you on the list 1st up we have Lynn Siegel Lynn. Please go ahead. We have 3 min to speak. Yeah. I'm sorry there has to be this begging, but you know this wealth divide is getting incorrigible with this trump administration, and we cannot have it anymore. We've got to have a hundred 40% inclusionary housing, not 25%.

[114:02] And this developer was accepted with 45%. And it was noted that there were other projects that were 28 to 30%. Peacock was, no, it was 40% affordable. This is. This is way low to start with, these developers are not hurting so bad as they are, and if this place is not developed. that's okay with me. I don't want people coming into boulder, and the 1st thing they see is from the mountains is a little aspen development. and each high-end development should pay an impact fee for all the unaffordable housing it creates. There's for each single market rate causes

[115:00] that many homeless people that many evictions that many more unaffordable. You know people. They cannot get a place in Boulder. Those market rate places have a huge impact. And you know, people like Kurt are working in the housing department, but he's doing playing both sides of the game he's working for. He's speaking tonight for market rate housing. And then he's also having to do all the work to get the affordable housing taken care of, and so it's a good game for him. you know. He gets the paycheck, but it's not the good game for boulder. I think there should be someone that's in affordable housing and someone that's in market rate, not someone working both sides of the game because they are opposing each other.

[116:00] Sloan says the market has changed. It's worse. That's why you need to go higher on the affordable housing above 45%. That's why. Let's see the September school. I guess it's it's getting moved, or it's transferable rights or something, you know, at 3 11, Mapleton. We lost those 2 affordable housings that were promised. They were promised. They're gone oops! Someone jumped on a bull. Thank you. Lynn. Okay, Thomas. Anyone else? We don't have any other raised hands at the moment. But if anybody else would like to speak. Please go ahead and raise your hand. We'll give it a few seconds. But I think we are okay to move on.

[117:01] Okay, great seeing none that closes the public hearing portion. we offer the applicant an opportunity to respond to anything that they heard during the public comment. You don't have to respond to anything. If you don't want. Okay, all right, I'm going to suggest a quick 5 min break. We come back and we deliberate and get this decided and move on, so we will return at 8 0. 5.

[124:13] I'm going to call the meeting back to order, and it is now time for board deliberations, and I bet you Chandler has something to the nature of some pertinent sure do that. We need to debate and ultimately answer, and well and okay, great. Thank you, Chandler, so And again I would urge us to

[125:01] in this situation to try to focus our comments and deliberations on answering. The key issue here in regard to is it consistent with the Bbcp policies and the and that, and the policy of the policies of annexation, and the intent of the original annexation terms. So who wants to lead us off with comments in this regard? Mason's looks ready. I'm ready. And mine are incredibly simple and boring. But the 2017 Annexation Agreement for 90 Arapahoe was approved, based on a compelling package of community benefits affordable housing, historic preservation, and open space that aligned with the BBC. Annexation policies and the broader public interest. The proposed amendment reduces the scope of those benefits, particularly in housing, affordable affordable housing, but retains key elements, such as permanently affordable for sale units and landmark preservation.

[126:06] While I am concerned that the original affordability target may not have been feasible, and that the city lacked tools to ensure timely delivery. I recognize that amending the agreement now may be necessary to realize any community benefit at all. to uphold, to uphold the spirit of the original agreement. I believe it is crucial that the revised plan include enforceable timelines and continued architectural oversight appropriate for this gateway site with those safeguards in place, I can support the finding that the amended agreement remains consistent with Bvc policies in the original annexation intent. Mason. Thank you very much. Okay. Who? Claudia, do I see a hand up there? It's just hard to see. You've got kind of a yellow wardrobe behind, anyway. Okay. Not yet, Mark. I will eventually thank you.

[127:01] All right. Okay, Kurt, are you ready? Yeah, I can go. Thank you, Mason, for that analysis. So I agree that this is what we should be focusing on the Pvcp annexation policies are pretty vague, or I shouldn't say vague, but they're not terribly specific. However, obviously the original annexation terms were quite specific. and although, as Mason said, a lot of the general form of the proposed modified annexation is similar to the terms that were in the original, I feel that the difference between 45% affordable and 24% affordable is a really significant difference. I think back to, or I imagine I try to think back to what the response of the city would have been in 20

[128:10] whenever it was 2017, if the a developer had come to the city to annex the site, and said, I want to provide 24% affordable housing. I do not believe that that would have been approved at the time, even knowing the if. If you people had somehow known the the potential changes to the market, which are very real in terms of changes to the interest, rates, changes to construction costs. and so on. And I I think that just speculating here, but my belief is that the city would not have accepted that, and would have held out for a better deal.

[129:08] And we've seen that the the most recent projects that were approved were of annexation projects were 40% peacock place at 40% affordable, and J road at 30% affordable. both of which are, you know, definitely above this and the the other. My other concern about changing this really is the precedent that it would set and sort of the moral hazard presented, because the the applicant, who, I think, was, you know, talking to us very forthrightly. Said that they were making optimistic projections for the finances of this project, and my concern is that

[130:10] if we modify the the annexation terms so significantly that it will provide an incentive for future developers to be very optimistic in making their annexation agreements, and then, sort of knowing that a precedent has been set, that you can come back and modify those later on. So I am very sympathetic to the plight of the developer, and clearly things, you know did not go the way they were expected to be to have gone. And there were a lot of unforeseen problems. That is sort of a convergence of problems. But you know, land development is a risky proposition. If it goes well.

[131:06] developers can make a lot of money, and that goes along with having risk. Riskier investments tend to have higher expected returns, because because people would just would would rather would accept a lower return if there's lower risk. And so if the city is going to be effectively bailing out developers when their projections aren't right, then I think that that changes the whole calculus for development. And I mean, maybe that's a place where we want to go. But that would mean in in exchange the developers really should be making lower returns on average.

[132:05] And you know I don't know how to make that happen. But but but that's my concern that we are setting a dangerous precedent. If we're modifying these terms so significantly, I could certainly envision some changes to the annexation agreement. I could certainly also envision some changes to the Site Review, to the Site Review. I mean, obviously that would be a different process. But I could. I could see this board entertaining such thing. I realize that that probably is not particularly beneficial at this time. but as a result of all these various factors. I will not be supporting the proposed amendment. Again, I could potentially propose support. A

[133:01] lesser change to the affordability, but not such a radical change is being proposed. With with agreement from you guys instead of going last. I'd like to follow Kurt right now. you know, the city of Boulder has a middle income housing strategy and a set of middle income housing goals that we have of failed to meet. And that's not an indictment of any person or department. But we just collectively have really not performed well on a middle income housing strategy and I went to the middle income Housing Summit the other day in Long Mountain, and the other night I didn't really talk about it, but I think there's a there's something pertinent that came out of that. And that was

[134:06] the City manager is the housing department's interim director and has been for 4 years. He told the story of their middle income Housing development associated with the Costco development. And basically he told a story about getting on the phone and getting it done and then using a Pud process which Boulder has eliminated because we. We adhere to the code using a pud process to get it done to make it happen. Now we have a different governmental structure. We have a different code. But Longmont has been way more successful than us in fulfilling our middle income housing, strategy. and I acknowledge the more the quote moral hazard of quote bailing out a developer.

[135:05] I also see a moral hazard in failing to get some units versus no units, and I think that that is a that is a real hazard to me. And you know the other thing that I that I continue to be aware of is, we live in the world. As it is, we live in a post-covid world. We live in a world of our current administration, with all sorts of things that we just have to respond to. and our best plans in so many ways have gone awry. And you know it's as mundane as interest rates and economic policy. And it's, as you know, as compelling as families needing housing.

[136:00] And so, you know we can. We can be strict and wish for more units, and we can watch the site sit partially built. We can watch the deterioration of historic units, and I'm not going to debate whether those should or shouldn't have been. They are historically designated. And so we can, and we can watch them deteriorate to the point that maybe they are no longer have any historic value. So, and again we can. We can wish for all sorts of things, but we live in the world as it is, and annexation agreements, unlike Site review. do offer us the ability to negotiate and negotiations. You know what sometimes things the world changes, and you renegotiate. And I think Mason put it so succinctly that you know this is this is what we have, and and that the benefit.

[137:17] the benefit. The city already owns, the open space land, the dedicated right of ways, the retaining wall along the multi-use path. Those are there, and I think it would be poorly considered to be to not renegotiate this, and I am convinced, after the applicant's testimony, that this is a fair negotiation that ultimately will will serve us. So who's next? Claudia now has her hand up. Okay, Claudia, go ahead.

[138:01] I think I'm ready, Mark. Thank you. And thank you for your commentary. There, I think there are many re compelling reasons to support this request. Market conditions have definitely changed in ways that neither the city nor the owner could have anticipated. When this annexation was 1st negotiated. I think it's important to recognize that the local politics of the time also pushed applicants to be optimistic in their commitments, potentially over promising, even without market changes. And I recognize that there are now significant. Sunk costs in the site in terms of site, preparation, utility, work, etc. That said I do think that it is a bad idea. I think. Kurt addressed this quite well to set a precedent that affordable housing agreements can be amended. and especially without some really detailed documentation of financial hardship.

[139:05] We got some of that kind of anecdotally tonight. I do wish we had received more. and I think that while the quantity of deed restricted. Affordable housing was only one part of the community benefits package that made this annexation possible. It was and remains an important part of that package. So where I'm landing with this is that I will reluctantly support this request. But I don't think that there is an optimal outcome here. and I hope that if City Council does ultimately approve this amendment, that there's will be some serious thinking about how to make sure we get feasible agreements from the start going forward. So we've heard that the Kaiser Marston analysis says that 25% affordable is the break point in most cases. which means we probably can't be asking for much more than the city's standard inclusionary housing requirement.

[140:07] But I think the discussion we need to be having going forward is not just about how we get that number right? Like, what is the percentage? But to make sure that we're looking really at all of our levers for affordability, and that simply has to include things like design and materials. The mix of affordability in a proposed development, the unit sizes and density to be honest. So there's a lot of variables that have been fixed in this request that we're seeing tonight. And I think that's really limiting in the solutions that we can offer, but that is the case that we're in, and so I will likely be supporting it. Thank you, Claudia Laura. so it is not our duty as a planning board to preserve profitability for developers. However. the city does have an interest in seeing this property be developed and not remain a largely unfinished construction site, as it has been for a couple of years.

[141:06] Any future buyer of this property would have the same annexation agreement and the same Site Review, and need to come in for an amendment. So I do think that the applicant has been quite forthright with us about the challenges of this site. and it is just simply obvious that the world has changed since 2017 when this agreement was made. We've had Covid. We have the current administration with tariffs and deportations that have upended the construction market and financing. and it would be unreasonable of us not to acknowledge that these things have changed the landscape. No pun intended this annexation agreement, in addition to having affordable housing, had the open space dedication, the land for the September school. And we often, you know, as Sloan reminded us, recent annexations have not reached 40% affordable housing. They have been more like 28 to 30%. And that's without those extra land dedications and open space dedications.

[142:15] So I'm I'm very likely to support this annexation agreement. I think it is the right thing to do at this time for the city, not just for the developer, but for the city and boulder also has a reputation of being extremely hard to develop in, and I don't know that we need to be cutting off our noses to spite our faces right. We need developers to want to give us the things that we are asking for, like affordable housing. And we I don't think that we have an interest in bankrupting developers in order to enforce an agreement from a time before Covid and before the current administration. I. So I will support this amendment. I will also be making separately, not as a

[143:02] not attaching it to that decision, but as a separate recommendation, and see if the Board is willing to support that recommendation to city council that they consider removing the landmark dedication, and I reversing the landmark that was done, and my primary reason for that is not to lower the developers costs, although maybe that would give the developer a bit more flexibility. But I am concerned for the future owners of this historic property, who will be low to moderate income homeowners. not market rates, and owning a historic property. and having those restrictions on how you can restore your property, you get a leak in the roof, you have a window casing that's failing. You have siding. There's hail that damages your siding. You have to go through a whole process that is more difficult and more expensive. To get any kind of repairs or renovations done is my understanding, and I hope Staff will draw me up short if I'm misrepresenting something.

[144:02] but that is an additional burden on the homeowner, and some folks take that on willingly, but I think it's a mistake to be putting low to moderate units in affordable housing. or low to moderate units in historic structures. So I will be proposing a recommendation to council that they consider reversing that landmark which is possible. Great, thank you, Laura. Ml, I don't see. There you go. Okay. Thank you. So I don't have any concern about the proposed agreement being amended relative to the Bdcp. Oh, my! Where I am circling is the intent of the original annexation terms. So you know, just by looking and hearing, looking at the existing historic buildings and hearing the applicants

[145:11] description of what's needed to be done in order to retain them. I don't think that we have a lot of historic benefit remaining with those buildings. If the original materials are no longer there. we basically have buildings that are attempting to be reused for a purpose. They weren't intended. I I think it's the intent of landmarking buildings is to retain a piece of history, and that was a piece of history. As you entered Boulder, that original motel that appears to be all but gone, and unfortunately the September school no longer exists either, so some of the original intentions of the annexation.

[146:08] I I don't think are remain remain valid. I think the the concern that have been expressed around the reduction and the process at which the reduction of affordable housing has been arrived at. Oh, it's somewhat of a challenge. you know. Development is not a guaranteed situation. The market is subject to all kinds of factors that will change the pro formas and change the projections. So to ask for a 52% reduction

[147:05] going from 19 to 10, you know, that's that's incredibly significant. Given that the intent, some of the intent of the original annexation terms, it appeared to not be very viable anymore. It's a very difficult. I think it's a very difficult situation as to how how to how to make a recommendation to city council that is responsible to our desire and need for affordable housing. At the same time, is cognizant that it's a different world. I don't envy us in the decision we have to make tonight. But I I do think it is. We're in a challenging position. And

[148:09] I think the only particulars I wanted to put out there is that I don't think that the intent of the original annexation terms regards to the historic benefit and the September school are intact today. Thank you. Aml, okay, any any other concluding comments before we get to motion making Last chance, Kurt. I just wanted to flag one thing about the technical thing, about the Annexation agreement in Section 10. Item I point number 4. It appears to me the way it's currently written. The 3 bedroom units are smaller than the 2 bedroom units.

[149:03] I don't know if maybe Sloan or Chandler could take a look at that. It's I think it's just sort of a typo. but if we need to address it here. it looks like we're moving towards approval of this. I just wanted to verify. If we go to the actual written annexation agreement as modified on this table, Kurt or no. Far further down in the Annexation Agreement itself, which is yeah. So it's item 10. Oh, section 10. And then I number Roman numeral 4. Yeah. Well, I did not flag the page. I'm afraid.

[150:09] I think. Yeah, go up. It's that when it says, okay. Page Packet, page 124, let me just tell you the annex. 14 of 97 of the memo. Page 5, page 6, of the actual annexation agreement. Basically, it says the there are 2 units with 3 bedrooms and 1,400 square feet and other units with 2 bedrooms and 1,600 square feet. So that seems backwards. So I just. I just want to make sure that we get that if it needs to be corrected. I just want to make sure that we add that into anything that we're doing.

[151:02] I'm sorry I still don't know where you're referring. Okay, so it's actually it's Do you want the page 14 of 97 for? Yes, 14 of 97. Okay, I think it's actually 1515 of 97. Thank you. Okay. So item, Roman, numeral 4 Iv. To 124% ami unit should have no fewer than 3 bedrooms, no less than 1,400 square feet. Right? Yeah. And then the remaining. Do you want to look at this? Is this no fewer than 2? But I don't know if it's a mistake or not. I couldn't speak. To it if you'd like. Yeah, that would be helpful. So the second part of that paragraph has not changed from the original annexation agreement just the 1st part. So because at this point, with the number of dwelling units and the percentage they're only providing 2.

[152:01] Only. The 1st part of that paragraph applies. If something changes in a you know, who knows what happens? A new site reviews approved. They would have to meet this if they provided more than 2, 120% ami units. Okay? So maybe maybe not so important. Okay, but and it's all prefaced with no less than sure. Yeah, no less than 2 bedrooms. It. Just yeah. It seems strange to have the 3 bedroom units smaller than the 2 bedroom units. Okay? All right. I again. Maybe a little out but any any other questions or comments. And I'm I'll check online here real quick. Okay, I'm going to go ahead and

[153:00] make the motion. And and, Laura, I appreciate you letting us know that you have an add-on motion different from the main motion. I appreciate that. Thank you. How do I? Stop, I turn teams off. I move to recommend the City Council approval of the proposed Annexation Agreement amendment for 90 Arapahoe Avenue, reviewed under case number LUR. 2025, 0 0 0 5. Finding that it is consistent with the overall goals and policies of the Boulder Valley. Comprehensive plan pertaining to annexation as well as the intent of the original annexation terms. I'll second great I don't think I need to speak to this much more other than I appreciate all board members.

[154:02] Reading this and understanding this carefully, and and and the careful thought that went into this and so any other comment. Now that the motion has been made. And if you're online, okay, I'm not seeing any. Okay. Yeah, Laura, I would just suggest that we interpret this as you know, it is consistent with the overall goals and policies of the Bbcp. Pertain to annexation as well as the intent of the original annexation terms. I think that word intent is really important. Obviously, it doesn't comply exactly with the original annexation terms, and some of those things are no longer relevant. But I think we should vote on this, considering intent, rather broadly agreed. Okay, I'm going to start with Mason.

[155:04] Yes, Laura. Yes, Kurt, no. Claudia. Yes. And Ml. Yes. And I'm a yes, okay. That that motion has passed 5 to one. Laura, are you ready with your yes, I would like to send some language to Thomas to display. and if I could, while Thomas is getting ready to display that, there are some questions about the landmark revocation process earlier, which we don't use often, so it gave us an opportunity to kind of dig into a little bit more so. Landmarks board would have to initiate the revocation of the designation, and then Council would have to approve it by ordinance. Okay, thank you. And can I ask one more clarifying question of the applicant before we go forward. Sure what exactly remains of the exterior of those buildings, the windows, the doors, the roofs, a little bit of the siding? What what of the exterior still remains intact?

[156:16] The I think all of the windows were destroyed by Vandals. so it would be the front doors and the the shape, the the structure of the building is mostly intact. You don't see it, that you know the the studs and the the roof rafters, and everything like that. But there's new sheathing on the roof. and you saw in the picture a little bit of the tar paper got blown off, but everyone everywhere else it it remains. And so it's just whatever siding we can salvage and the front doors. Thank you.

[157:00] Just following up on that. My recollection was that removal of the exterior siding constituted demolition, and I verified that in the definition of demolition in 9 16, so demolition includes removal of the the maximum amount that can be removed without constituting demolition is 50% or more of the exterior walls of the building as measured contiguously around the building coverage or any exterior wall facing a public street. which I mean what exactly constitutes Public Street. In this case I don't know, but I would expect maybe it would be, even though it's a private street. Maybe it would be interpreted as the extension of Arapo. Either way. It seems like, maybe from the technical standpoint, demolition has already occurred, in which case,

[158:09] you certainly wonder what is the benefit of maintaining historic designation. Thank you, Kurt and I have a couple more comments. Let me go ahead and make the motion, if folks don't mind, and we'll see if it gets a second. If it does, I have some more comments about what remains and what's visible, and what I have observed at landmarks board about them, not wanting replica structures. So if folks are okay, I'll go ahead and make the motion, please. I move that we make a recommendation to Council, which reads additionally, planning board recommends that city council. Consider removing the landmark designation primarily to benefit the low, to moderate income affordable housing owners who will have to maintain the exterior of the historic structures at their own increased difficulty and expense, and also because little remains of the exterior of the original historic structures.

[159:01] I'll second that. thank you. And if I, if I may just speak to this, you know, I talked more at length about the impact, to the low, to moderate homeowners in our affordable housing program, who already often their primary complaint is the that the cost to them of maintaining the house are not recouped when they sell it because of the limited appreciation. So that is one of the primary challenges with this program that we accept as part of the program. Putting these units in historic structures, landmark structures adds to that challenge adds to that cost adds that difficulty for some of our most vulnerable homeowners in the city. I would think so. I spoke to that already. I also just want to say. You know, the the applicant has told us that the Restoration was more intensive than they expected, and that the buildings will basically be new fabrication, with very little left of the original structures, maybe some front doors and some of the siding, and Kurt has pointed out that this may already qualify as a demolition.

[160:07] but landmarking only applies to the exterior of the buildings and landmarks. Board generally specifically does not want to have replica buildings, replicas of historic buildings. They want to maintain historic structures that have been intact for over 50 years, and and that may not be possible here. That may already be a thing of the past. So, and I don't think that condition existed when this landmark was approved. Also, the retaining wall was not there. The only public realm area where these buildings are even visible is is a little bit of the end of Arapahoe, where it makes that turn to connect to Canyon and the bike path. And now, with that retaining wall most of the time that you are traveling along that bike path, you can't even see these structures. You can see a little bit of it from the East End as you approach, and a little bit of it from the West End. And so I agree with Kurt, that the Nml. That the historic value of maintaining these as landmarks is is a little bit unclear, and that's not to denigrate.

[161:08] to use Mark's word. The history of these buildings, and what that motel has been in Boulder's past. But I know that as part of the landmarking process there would have been photographs taken, and documentation that hopefully helps preserve some of that history without having to recreate these buildings on site and then maintain them in perpetuity at the expense of our low income homeowners. Additional comment from anyone else. I'm looking online. Okay. Seeing none. No other questions. I'm ready to call this vote. Mason. Yes, Laura. Yes, Kurt. Yes. Ml. Yes.

[162:00] Claudia. Yes. And I'm a yes, okay. That motion passes unanimously. and I believe unless anyone has any other motions or anything else, I believe. Oh, Kurt, I'm sorry. Yeah. I haven't written this up, but I would like to suggest a similar additional motion. To remove the parking requirement from the from the annexation agreement. It probably won't make a difference for the existing development. But, as I understand the the if it's in the Annexation agreement, that sort of runs with the project indefinitely, and it would constrain the future flexibility of the project to have the the particular restrictions around parking. So I would suggest possibly removing that so I can write that up if that would be helpful.

[163:01] Give me a moment while you while you write that up. I'm funny enough. I'm going to speak against this and so and so maybe this will determine whether or not you get a second or not in this regard. Of course I would advocate for more flexibility in the future. I am not a fan of parking minimums, and have advocate and have advocated for. And now the city is in the midst of eliminating their parking minimums. I also don't particularly want to muddy the Waters Council, who tends to, who can be confused by our sometimes our additional motions raising additional issues. And in this case we've we've just heard extensive testimony that

[164:06] it is what it is, and we've just acknowledged that it is what it is, and I'm just not into mudding the waters on this, and having an additional thing for council to debate that won't really in terms of whether or not this moves forward or not make any difference. So, Mark, I'm inclined to agree with you. but for me it's more of a reason not to make the motion in the 1st place, so you'll never hear me to make a motion for those reasons. But since the motion has been made, and something that that I can support, I will still be supporting. Well, okay, we we actually Kurt was typing while I was pre-debating kind of violating the order of things. But anyway, pre-debating. So we, Kurt, are you ready to make a motion? I'm ready to make a motion.

[165:01] I move that planning board recommend to that city Council. Consider removing paragraph 10. J. Parking from the Annexation agreement. Are you seeking a second? That's the usual. I can't do it by myself. I will go ahead. And second, I do think I don't think that council will be particularly confused by this one. This is just to make this annexation agreement retroactively consistent with the direction the city is heading. Anyway, I don't see a lot of Downside to this one. Okay, Kurt, you want to speak to this anymore? No, okay. I'm now going to reverse myself, since this is a motion, and it's been seconded, and it will be in the record. A split vote on this will result in even more confusion.

[166:05] Hence I will reluctantly. I'd rather have it go unanimously than than split. So, anyway, are we ready to vote any other comment? Okay, I'm going to go with Mason again. Yes, Laura. Yes, Kirk, yes, Claudia. Yes. And Ml. Yes. Okay? And I'm a yes. So I really don't like it. But I voted for it. And you got a unanimous okay? All right. Okay. does that conclude? Is there any other comment? Any other motion? Anything else needs to be discussed on this item? I'd like to close this item out. please. One brief comment to the applicant regarding that historic landmark. We we have just recommended that Council. Consider this so they may go either way. I would just say, it may be easier for them to say yes to that if you let them know that your plans have have, or have not changed in terms of what you plan to build. That information may be helpful to them.

[167:11] I will. Great. Thank you. Okay, that closes agenda. Item. I believe that was 5 a. And we move on to our next item of business. Thank you to the applicant for attending. Thank you for Staff for their preparation. Mark. I had my hand up. Oh, I'm I'm so sorry, Claudia. My yellow hand in the corner. It may I make just one brief comment to both the applicant and staff before we close this out. Yes. Yeah. Okay, thank you so much. I wanted to recommend to both city staff and the applicant that when you do go on to present this to city council that you consider being more forthcoming with actual financial analysis than was the case in the materials we saw tonight. So less anecdote and more pro forma if possible.

[168:01] I do believe you agree. It is expensive to produce new housing, and if we're going to have realistic discussions about affordable housing, I think we need as much transparency as possible around those costs, so that may end up with a smoother ride for this request, and also be a benefit to our affordable housing discussions in general, thanks. I think that's excellent advice. I see a lot of nodding heads. So there you go. Okay, okay. Now we are closed. This item and we move on to item 6 matters from the planning board, planning director and city attorney. In this case. Item 6. A is from the city attorney's office update to the planning board rules of procedure second round. and I believe Laurel is going to lead us on this.

[169:03] Yes, I am. Give me just one second to get this up on the screen. Excellent! Okay, thank you all so much for the next conversation of the rules of procedure. Just before I begin diving into these, and I was just going to walk through the rules and see what you guys thought make edits. I only received changes from Mark and Laura, did anyone else send me changes that I missed today? Okay, I was in an all day meeting, so I just want to make sure I didn't miss anything great. So, moving forward, the highlighted changes are things that Staff made in response to what you guys recommended last time, either adding additional language. I didn't include minor changes. It was mostly like additional paragraphs or sentences, and I left some comments. And then Mark's changes on this document are in orange and Laura's are in green. So I'll go ahead and walk through that. But hopefully, we can remember those colors. Okay.

[170:00] whether or not you guys approve to this tonight, or next time I'll make sure to give us a clean version. Send it out if you approve it tonight with updated table of contents and remove the draft and all that. I'll get that out, obviously, before your next meeting. Yep. okay. Great apologies for scrolling as I scroll down, and please feel free to interrupt me at any point. If there's anything you want to change in here that I am not talking about, the 1st change in here is this board member, unable to attend. We had changed this originally. It was about just the chair and the vice chair, and we changed it to any board member and encouraged it to be the member notifying the secretary as soon as possible. I'm just gonna keep walking through. So feel free to interrupt me. Okay, great. Oh, I have a yeah. Emma, go ahead. Yeah. again clarifying in section 2.4 duties to the vice chair. I was always under the impression that the vice chair attended the agenda setting meetings as well as the chair. Is that not correct?

[171:04] That is correct. And do we want to put that in there. We can sure. I mean, if that's the way we do things, part of this whole re revamp is to bring it up to up to par with how we actually do things. Excellent. Yeah. Would it make sense in 2.3? Do you think. Wherever wherever you, wherever you think it might be, in for the chair, it's under duties of the chair, so I thought it would, should go under the duties and the vice chair. But. I agree with duties of the Vice chair. You should begin with. if possible, attend the agenda meeting, and Chairwell, in the absence of the chair

[172:01] works for me, and Ml, thank you for recognizing my work. You're welcome. Excellent. Thank you. Okay, I'm going to go ahead and save that and keep moving forward. If no one has any objections to this section. Accept it, laurel. I'm sorry. Can we go back to what you just wrote? Yes, please, I feel like that sentence is now potentially a little bit confusing because it's linking the 2 together. Oh, yeah, sorry. Did not mean to do that. Okay, so maybe we can say period in the absence of the chair. In the absence of the chair from planning board or agenda setting meetings. the vice chair will assume the duties of the chair. What I realize is, it's kind of small that work. Okay, keep moving through

[173:03] this one. I am going to shrink a little bit. Okay, so and there was Claudia and Ml, I I see you, but I'm also really watching the scrolling and looking at the words, so just shout out, if you have have something to say. Yes, and I can't see you. So please do that. Yeah. so the next one is duties of the secretary. This one I had suggested some staff input on, because a little bit outside of what I do. But I had included some changes here. So in the language it had said ideally, within 30 days there will be minutes for the meetings to be sent to the board. mark had suggested changing to 14 days or crossing out ideally. I do want to stray away from having the rules of procedure require Staff to do certain things other than being the technical advisor of the board. So I had suggested more on the 14 days amending that rather than crossing out ideally. But open to what you guys think, and thought it would be good to have staff, of course, weigh in on these changes because

[174:04] I'm not writing the minutes. Additionally, Laura had added this additional information into, or additional sentence in there whenever possible, especially for quasi-judicial items subject to council. Call up the Secretary shall strive to provide minutes to the Board for approval prior to those to the use of those minutes in a city council meeting with the idea that you guys would be able to review that before council meetings, I assume. Yes. so I thought I would give an opportunity for Staff to weigh in here either Brad or Charles or Thomas anybody, if they would like to weigh in on this particular section before we approve it. I'm strongly supportive of both the retaining ideally and then moving to 14 days, and in support of Laura's suggested edit. Again. Both are qualified with whenever possible, ideally, and consequently, you know, it's not like there's some enforcement action here. I anyway, I'm fully in support of these

[175:08] excellent. They're just aspirational. And hopefully, that's okay with Staff. We we certainly understand when things are not possible, especially due to tight turnarounds. But we think this is a good thing to shoot for. Excellent. I'll just give a second for Charles to read it in case there's any commentary on it. You want me to make it bigger wherever possible. Yeah, that's aspirational. Great. Okay? So it sounds like, we are okay with these changes. And we strive to do that anyway. So then 14 days. Okay, the next section. This is something that actually, Hella had suggested. Sometimes things aren't actually presented by the planning director. Sometimes they're presented by us like right now with the city attorney's office doing them. So she had suggested crossing that out just to match

[176:01] what we do in practice, and that is to remove shall present all agenda items to the board that's covered by designee. There's different. Would you all be considered a designee, though I think designee in this case is more staff. So Thomas or Charles, or something like that, sometimes other staff that are not under planning boards or planning board directors like authority. It could be argued either way, though. Probably. Okay, I'm gonna go ahead and delete it. If there's no objections stage. That's right, Brad, you want to present everything yourself. Brad is becoming the lawyer in the room. Okay. this is so. I didn't put this in language in here because it sounds like, maybe we need to discuss it a little bit, mark. But Mark had suggested in 4.1 here that it currently reads additionally by concurrence of 4 or more members of the board. I think this should either be a formal vote at a meeting, or we should spell out a procedure that allows

[177:09] for 4 but 4 board members to discuss a possible agenda. Item. Currently, this is unclear. Since there were options in here, I wanted to give you an opportunity to weigh in, and also which direction you would like us to go. So my concern was to get concurrence outside of a meeting essentially is creating an illegal meeting. So I don't, unless there's some other way to do it. So I would. I would prefer that it just be a vote at at a meeting at a meeting. and there are, if you're doing more procedural things, you can do that outside of a meeting. But in this case it's kind of hard because you're setting up matter, and you probably want to discuss that matter. So you'd prefer to do a vote in a public meeting. Yes. but I'm curious what others think. If that's

[178:03] do you require a formal vote, or can it just be concurrence at a meeting? Right? Well, you know I prefer a vote. Okay? And the reason it's funny, I think at times our Council's extensive use of the Nada 5, I think, is highly. It could be, anyway, I think procedurally it's suspect. So I just prefer a vote. We all know how to do that. I'm fine with saying by vote, instead of by concurrence or more members of the Board during a meeting. Does that work? Yep. and we could, if we had to take a vote we could call. We could publicly notice a meeting and do an online meeting, you know. Yeah, so okay. yeah, publicly calling a meeting is a procedural matter. So

[179:00] 4.2. The change here from Laura, which makes perfect sense to me, is changing from the boulder daily camera to a newspaper of general circulation. This is what we say in our code. In most places there are a couple that still say daily camera. But to make this a little bit more general. Yeah, that was gonna be my comment in that area as well, because one never knows how long the daily camera will will remain so good. Catch. Yeah, that's great. Maybe the reporting lab will be next. I don't know. Can we restrict posting on X technically, not a newspaper so noted 4.3 distribution. This has to do with updating materials as they come in. So sometimes we have things that come in before that 5 day window. We obviously want to get you guys materials as soon as possible. So this is just saying that sometimes we'll update the materials up to that 24 h period before.

[180:01] Great, a lot of times. This is emails and things like that. He got mad at me. Okay. I have a question about that one. Yeah. So am I, understanding that up to 24 h ahead an applicant can add new and different information to the packet. This or or no with this- this 5 day within 5 days. This is not the 24 h one. This is 5 days. The applicant can make changes. Is that correct? Is that what. Yeah. So this says, materials provided to the board may be updated with materials provided by napkin within the 5 day time period. So it could be. I don't know how we've done this in the past, I imagine. Usually we add, instead of changing things. So we would be adding things, and then, of course, notifying you. If that happens. Okay. But 5 days is what we're gonna limit. That that sounds perfect. Thank you.

[181:02] 5 days. Yeah, so that you guys have enough time to review it. But if we add something we'll tell you. Well, I think just to be clear. This is saying that generally the packet will be up no less than 5 days before the meeting, but then there can be additions any time before the meeting within that 5 day window. I think that's what the language currently says. Oh. So it can come in 1 h before the meeting. Well, it has to be at least 24 h in advance, so within 5 days, but before 24 h. and I think Brad has something to add to this. Well, actually, I just have a clarifying question. So in in light of our conversation earlier in the day. Where does the 24 h show up in here? That shows up a little bit later. It does. It shows up a little bit later, Wonder just from a Yeah, sorry I won't. I'm wondering if no, you can't, just from an order of following the logic stream, whether we need to maybe move that or reference it twice. Yeah.

[182:05] because it is confusing. If one section. I think, which I understand, it's about distribution of it versus adding to it. But obviously several people, including myself, are a little confused. Yeah, I mean, I think it makes sense where it is, although I haven't looked at the later language, but, you might want to add. received within the 5 day time period prior to the meeting, but no. no later than 24 h prior to the meeting just added on. I think it's okay. If it's repeated, I think people may look for it in 2 places. Yeah, that's what I think. That's a really great catch, Brad. Thank you so much. Yes, thank you. So the the top of that paragraph says, no less than 5 days prior to the meeting. Yeah. So that's that's the agenda materials to be distributed. So staff will provide those no less than 5 days prior. However, they can be updated in between 5 days and the meeting, except for up until 24 h before.

[183:09] And why are we doing that. I mean, are people having trouble? Do applicants have trouble? Meaning the 5 day. For me. It has been when I've received updated packets has been predominantly public comment. That's right. That comes in late, and I think the public operates on a very different schedule, and and sometimes we've accommodated public comment hours before the meeting inside the 24. So I think the 24 is A is a fine cutoff, but I think erring error erring on the side of allowing additional public comment, etc. Close to the meeting time is the is the predominant use of this clause, or if something really changes between packet production. But I haven't ever seen an applicant like

[184:09] suddenly pour in with a big change I have. So it's nice to have you know, some guardrails in the rules, so that, you know we're all kind of playing by the same rules, but from time to time we'll notice, like. Oh, this is an older version of the plan that they uploaded. It's not the most current version. So it does happen from time to time. But typically it is public comment that we're leafing into the packet up to that. Yeah, I I'm I'm I wasn't concerned about public comment, because I agree. You know, people make their comments as as they do. But I was more concerned with an applicant. 24 h is in my. you know, we're volunteers, and many of us work. 2024 h is is, if if they're substantive things, 24 h is not gonna be. And I think we had that where it came in, and we didn't have time to review it, so we had to postpone it.

[185:15] Yeah, if it's a substantive thing. Ml, then Staff would use our discretion. We would either recommend that the hearing is continued. Okay. And if they're. you know, if they have enough time to pick a a date in advance of that, we would just advise them to pick a different date. Do we need to care right then? We wouldn't send you. We wouldn't send you wholesale, you know, plans that have changed. Right. So greatly that you wouldn't have time to review the material. Okay? Well, I think, for example, like asking a question like Ml, you? Asked the applicant today for the call up about their energy efficiency, and they sent a whole bunch of materials, and so adding that to the packet, I think would be perfectly appropriate. I agree.

[186:00] Do we need to add anything else to this? Or does it look? Okay? I don't think so. I did just want to add to what Laura just said, that if the questions are received same day. that those answers should be read out in the meeting as part of the record. and because they won't be included in the packet if they're received within that 24 h after Monday at 6 pm. Yeah. So for quasi-judicial, we would want answers to be read into the record, so that it's there. For quasi-judicial matters. Are you going to say something to her? No, let's is a call-up quasi-judicial. I guess it's not. It's it's just that it. It's a precursor to a quasi-judicial. It's procedural until it gets called up. Yeah. oh, it's procedural until called up so in. But a lot of our quasi additional rules apply because it could be called up. So that's why we still like ex parte communication would apply, even though it's not quasi-judicial until it's called up because of the potential for it to be quasi-judicial because it's on the calendar. Okay? Yeah, great.

[187:06] Okay? Okay? In the order, we added, just a section that's usually in our agendas. which is discussion of dispositions, planning word call-ups and continuances. Can I ask a question about that, please. Just that that seems like that is scheduled business. So would it make sense in H. Just for clarity to say other scheduled business that makes sense to me. Okay. may not be labeled exactly that on the agendas. But yeah. I'm not going to accept the tracking change, because it'll boot me to another section. Okay? So the last paragraph mark had a comment on. So this is about rearranging the order of the agenda, his comment, said, the final paragraph should be clear that this is the chair's sole discretion, or we should follow council procedures that I think require a vote.

[188:11] Generally for council. They do it through Cac as the setting agenda, and then they can't have a vote on the day of if something comes up. So it's sort of up to you if you want the chair to be able to rearrange it, or if you'd like a vote here, I didn't add language because I wasn't sure. You know I'm comfortable with it, being at the chair's discretion, because we can always overrule the chair. Sorry, Mark, with a vote of 4. So I'm comfortable. With that we can even remove the chair with a vote of 4. Watch out. Mark Kurt's coming gunning. Do we have a motion? You tell it's a little bit late, so I'm probably not going to put sole discretion because that could override your 4. We don't want there to be conflicts. Yeah, no, I only I put that in. My sole discretion sounds like a power grab. But no, I think I just wanted to be clear that whether it was a vote or the chair's discretion.

[189:08] Okay, I'm going to keep scrolling. This is something that was requested last time is that we adopt the city council rules of decorum, or incorporate them into our rules, related to things like signs and disruptions, and that sort of thing. I do know that city council is looking at their public comments, so they may be some changes to rules of decorum. And we can always amend this if you want to change it or add something. The rules can be amended anytime, not every 50 years. Yeah. Great, but the the point being it's so much simpler rather than us, having our own rules of decorum to just follow whatever Council seems to be kind of experts on this these days, so we'll let we'll let them write those rules. Yep, yeah, that would be great. And then, turning to public comment.

[190:04] so I think that maybe this came up last last hearing, but has come up before, and that is in this 3rd sentence. During the last hearing, Mark allowed a comment, Withheld's agreement regarding continued item where the public hearing was closed. I assume a public comment is what you meant. If this is allowed, then we should strike this clause. There's a clause in here that says, public comment may not cover any clause additional matter for which the public hearing is coming up in the future, or has been closed. So I assume you mean that last closed there on that section and wanted to talk with all of you. Generally speaking. once we close the public hearing, and it's open for deliberation. Then it's the Board's deliberation, and we don't go back to public comment. But it's a little bit different in these continued hearing matters. So in in in the example. It was Leonard Siegel speaking just during the public comment period, bout

[191:02] a continued item that we had where we had closed the public hearing. And so the question was, in public comment. I think it seems to be the the mode. Just defer to letting them speak unless they're doing something really egregious. So, and part of the reason that we try to keep it just as like to play the other side of this. We want the record to be whole. So when we go pull the record for a public hearing. If there's some sort of challenge, we're not going to pull public comment from earlier meeting. We'll just pull the section. So so that's in the case conflict in in this case. Then the chair should have either said no to speaking to that to during public comment when he was speaking. I should have said, No, you can't speak to this, or

[192:02] I should have said, we need to disregard this. I have a question. Sorry. Sometimes the public hearing is closed, but the decision on the item, the board deliberation and decision making is not yet complete that feels like a different situation than the Board. Deliberation is complete. The decision has been made, and a comment that's looking back at that isn't going to affect our decision. That so to me, it's it's not so much about whether the public hearing has been closed. But it's more about? Is the public hearing coming up? Or is the decision still open? I don't know how to word that, but it seems like the decision is still open for the denial findings right? The other side of it, too, is that the applicant or other people can't speak back to that comment right? Can't respond if they. if the deliberations are still ongoing. Yeah. so should we just leave this as it is and abide by it in the future.

[193:02] I have. I have a a I have a comment about it, and Demo, the use of public hearing is coming up in the future in the future, is it? Are we talking about a week? Are we talking about a month, and we talk about a year in the future is seems confusing. What do we, meaning by public hearing, is coming up in the future? Generally. I think we've interpreted this to mean that a public hearing that we know about is coming. Yeah. Well, it's sometimes scheduled, though some of the bigger ones maybe not scheduled yet, and people know about it like. if we're going to shut down the millennium, for example, maybe people know about that way before it's scheduled. But often we think about it as if there's a public hearing scheduled so we could say something like that instead. If that's better. Public hearing is. Well, no coming up in in the future. That that to me is- is not

[194:01] I? I looked at that, and I thought, Well, what are we getting at? And I see what you're saying? And I think maybe a scheduled or what was the other word you used. Is calendared. For which this scheduled public hearing. for which there is a scheduled public hearing or calendar, for which there is a and then coming up in the future is. is, is not there anymore? So people don't have to think about. Well, would they ever be? Will this ever be coming up? Can I talk about it? Hey, Amel! This is Brad. Hi brett. Just an effort to try to help resolve this. So what? What problem are you trying to solve with that cool. Language of coming up a public hearing is coming up in the future. So if I could give an example, we have a frequent public commenter that likes to refer to other projects that are either coming up on our calendar, or who that have already closed like the Millennium? Or you know the 30th Street project, or the one in Flatiron Court, and and those references happen all the time. Right? So I guess the question here is.

[195:19] you know, if we were going to disallow every mention of any other project that we have ever. Yeah, that talked about problematic like. yes, I'm testifying, testifying. And just like happened at the millennial site. Blah blah, you know, I mean, I don't. I don't know how you police that. Yeah. And I think the future may be about ex parte communications right like having. But it's still in a public hearing. I don't know. It. It isn't clear, is is the point I'm just making. Coming up in the future is not a clear. Just strike that whole sentence. And just well, we we're still trying to protect quasi-judicial hearings, right?

[196:01] But you know just because we're having a hearing. You know this, the whole free speech aspect of this starts to get complicated as Council is dealing with just because we have a quasi-judicial hearing that has a structure, and we have a public hearing. We open and close the public hearing. We're we're drifting into an area of public comment commenting about something that might be coming up that might have already. And in fact, most things are either coming up or they've been closed. Very few things are in between. So I would just say now that I appreciate Ml. Pointing this out, especially the coming up in the future, because that's redundant, too. But anyway, I would suggest I would suggest we just strike that whole sentence, beginning with public and ending with closed. So an alternative mark maybe, would be to have it say something to the likes of public comment, may not cover any quasitional matter for which

[197:09] the matter is not closed is undecided, is undecided. Well, that's no. I think I'm nervous, though, about having somebody speak at a public comment today for next week's public hearing, where we have an opportunity to be heard, and we have this 1st amendment opportunity, and that's where you're supposed to speak on it. But is it any different than there may be an editorial in the newspaper about it, or there may be a conversation that you overhear in a coffee shop about it, right like I think it's incumbent upon us that we are only considering, during the hearing the testimony that is presented during the hearing. understanding that there may be other things that people are talking about within our earshot that when we can't necessarily disclose everything that we've ever heard about a project. But that's what you're supposed to do for ex parte communications right? If you hear something outside of the judicial hearing, you're supposed to be able to say, this is the conversation. This is what happened, and I won't.

[198:04] But a conversation is two-way. It's not just somebody said something within my earshot about a project. So if somebody testifies 2 weeks before the the hearing, can't we just reference that then, during the hearing and say, Oh! And there was public comment on this 2 weeks ago. and that should be included as part of the public record. I don't want us trying to right. create a record of some speakers who spoke randomly 2 weeks before. and incorporate that into the public hearing that gets pretty complex with some of our public commenters. Is this just one of these things that's like too complicated to take care of the edge cases, and we just leave it and do our best. I prefer the burden beyond us as judges in a quasi-judicial matter that we we take into account

[199:07] what was said during the public hearing during the during the whole hearing. and that and and the packet, and that is how we limit ourselves rather than trying to create a complex set of limits on the public and their speech. And there's many times that we make judgment call during public comment, whether it be during the public comment, public hearing, or whatever. Where we say, not appropriate right now here this is where that should go, so, yeah, yeah, if if sometimes the public gets confused and they start speaking to, and we say, Hey, that's agenda. Item 5 B, that's coming up. And they. And normally, they say, Okay. Rather than but if someone didn't say okay. the simplest thing is to say as judges, we're going to disregard that.

[200:03] I think that this actually is quoted from the council rules of procedures. So we're going to look that up really quickly and just make sure. Maybe that would be helpful. I don't know. I'm okay with coming back to this as you look it up. Great. Thank you. Yeah. There we go. Okay. The next one is about pooling. So Mark had suggested public comment, time pooling that if Council allows us, and we should as well, and we should adopt the rules for consistency I pasted. I know it's really small sorry about that. I pasted what the Council rules. Say. Council permits pulling for comment during public hearings. Not during public comment. And the reason they don't during public comment is because they do like the drawing right and they they have a specific way. They do public comment. This is during a public hearing. Yeah, during a public hearing. So you could decide if you wanted to do public hearing or public comment, it says 3 or more people can pool their time, so one speaker can speak for 5 min if all the people pulling time have signed up to speak when the spokesperson is called to speak, and are in the council chambers are present. Virtually, when the speaker is called

[201:11] the 5 min of pool time can be reduced to 4 min by the presiding officer. If the time for individuals has been reduced to 2 min. speakers will need to designate on the form, if they are pooling with 2 other speakers, and indicated who who they're pooling with. so we could add something similar to that. I would support that. I think there are times where we are having a hearing on a controversial project, and some speakers have very informed things to say that it gets really awkward if they try breaking it up into 2 or 3 min bites and different people doing it, and it's both more efficient and more informative. and I think, more satisfying to the public

[202:01] to just allow pooling under the same rules as Council does. Is public comment different than speaking to A quasi judicial item. Yes, so public comment at the beginning, right? Not part of a quasi judicial hearing. Right. So I would be inclined. Now is this piece in the Purple there Laurel? Is that you're suggesting that the public comment we add, public comment may not be pooled. Is, that is, that. Am I reading this correctly? That is how Council does it. And that's only because Council's public comment structure is a little bit different where they like. They have a pooling system and things where they pick certain people or a lottery system. Sorry, not a polling system. I'm stuck on pooling. So it's up to you whether you want to do it for hearing, or comment, or both. Neither. I think the terminology is a little confusing, so Council says, open comment is the beginning of the meeting when you can talk about anything, and then public comment during a hearing is a different thing. And I think what you're suggesting laurel is that we would adopt Council's procedure where open comment there's no pooling.

[203:19] But for public hearings there could be pooling. According to these certain rules, the only downside that I see is that it's just more complicated for Staff to administer. But if Staff are okay with it, I'm fine with adopting it. I think it has the advantages that Mark and Kurt have described, and I have taken advantage of it myself at Council Hearings, and I do agree that there's a benefit when you have a group of people that are passionate about something, and they have a lot to say that they can designate one spokesperson. And, to be clear. I wasn't advocating for one or the other. You could do it during either option. So so, going back to this, I think you clarified that completely. That Council doesn't allow pooling at their initial open comment.

[204:01] But during a hearing they have rules for pooling time. During public comment. During a hearing. I again going back to it, I think we adopt. I suggest we adopt Council's rules for both. and then we just adopt Council's rules. So no pooling during open comment at the beginning. pooling under their rules during a public hearing. Yeah, I think the complication is just going to be for staff. How do you inform people that this option is available? And how do you administer it? Because Council has, like an online sign up process. But if you folks are okay with working that out, I think this is a good idea. Yeah. So that's a question for Staff, are you? Okay? If we do, polling, is that gonna be problematic? I think it's mostly a question for Thomas, since you know, you and Vivian administer, and Amanda administer our hearing comment and our open comment at the beginning of the meeting. Are you okay with working out some process for pooling during hearings

[205:11] that's worked out fine. The couple of times that we've had that come up in the past. I know that came up with the Fraser Meadows item, and. What's. The Dark Horse and a couple other things, and there was no problem associated with that. If anything, we only had a couple people take advantage of the time pooling. Yeah, I think I think they really don't gain any time since it's 3 people pooling together to get 5 cumulative minutes, so I don't know that they always want to take advantage of what we have is our current rules, but we have seen it work a couple times, and there wasn't any problem on our end that's great to hear. Just as long as everybody is aware that that's an option, right? Because some savvy people know that's an option, and some might not.

[206:04] We could add it to our yep. Well, so we publish our packet, has our rules of procedure at the beginning and oh, modified version. But yes, yeah, okay. But we'll update all those. Yeah. I'm sorry that I missed this. I was looking at the the rules. So is it. public comment and public hearing, or just public hearing. So follow council, same as council, which is for public hearing. Okay, yeah, I will do that. Allow, allow it during a public hearing. It is not allowed during the initial open comment, which is a different set of words than what we use in our packet. Bye. Confusing. Yeah, did you find anything? So we call it public participation? We don't call it open comment, but it's the equivalent of open comment. Here we go, and and just so, you know, I may put it in a different section, because this is about public comment. I might put it under

[207:04] public participation during it. Yes, yes, so just so, you know. So if you see this language still in there, that's it's because I've added it later, we weren't able to find it in the city Council. Rules for the public comment may not cover quasi-judicial matter for which there's a public hearing coming up. So do you want to strike that it sounds like you might want to? You said you were or were not. We're not. I thought that. That's where it came from, maybe in a past version, but I vote to strike it. I agree. I agree. Mark. Just strike this sentence. Okay, okay, keep moving forward just very quickly. In 5.3. It's just very minor wording. It says at the onset of the hearing blah blah, which sounds like a disease. I think maybe that is supposed to be outset. or you could say at the beginning, or the start or the beginning. Yeah, yeah, great thanks.

[208:01] Covid, still haunting you. Huh? I have an onset of a fever. I have been sniffling. This is added language from last time. And also we also added in the rules of decorum, which also talk about this a little bit from city council, and that's any activity that disrupts, delays, or interferes with the orderly conduct of the meeting is prohibited. so would do. Isn't that redundant with what was up above in 5.3. I mean, maybe it's okay. It seems like it is redundant. I that was one of my comments as well. 5.3. Yep. It does seem activities that oh, sorry, sorry activities that disrupt delay or otherwise interfere with the meeting are prohibited. Yeah, same. So much. Yeah. And I think. and the Council also has that in their rule of decorum, too. So okay, I'm just saying, maybe we could remove it. One place or the other. Just

[209:00] one of those is referring to, if I understand, is referring to the public participation guidelines, and one is referring to general meeting behavior, general audience behavior. or even other planning board members. Construction. Okay? Well, not a big deal. Yeah, yeah, let's leave it. As I recall, we wordsmithed it to say that interferes with the orderly conduct of the meeting, because sometimes there will be delays in a meeting that are part of the orderly conduct of the meeting. Got it. So we'll leave it. No, I think we're just leaving it. I thought we were leaving it. Sorry. leaving it. Okay, yes, apologies. I was talking into my hand. Okay. the next one is the reading of the indigenous land acknowledgement. Both Laura and Mark had said, Remove is encouraged to May, which was a good catch, because we're trying not to use encouragement language too much in these rules. and then the rest of it. And Laura recommended a couple of other language changes in here which you can see in the green.

[210:05] One question I had for the board. Do you want to read the entire acknowledgment, or have something shorter to use. This was this language in the comment was something that Mel Ml. Had suggested during the original discussion. I think that there is a in the city of in the city. Indigenous land acknowledgement web page. I think they have already developed a short version. That's already yeah, which doesn't identify. It uses shorter names for the indigenous people rather than anyway, it may or may not be there. But the question I have about this is, why can't it be read in quasi judicial matters?

[211:04] And that was something that we had discussed with the city manager's office and staff internally. It's been a few months, so I apologize if I butcher this, please interrupt me if I get this wrong. The idea of this is that it should be focused on like legislative matters instead of specific development coming forward because we want again, you guys to be looking at the record what the applicant has said, what our code says, not this land acknowledgement which is not a part of the criteria. So that was the recommendation from staff. If I remember the presentation that that you folks brought to us to describe the acknowledgement and how it's used. I was under the understanding that the point of it was to create some consciousness in our. you know, whatever it is, whatever matters we're going to be looking at and not to be exclusive of.

[212:06] In this case, quasi judicial matters, I would think that it would be, could be construed by an applicant as Presidential prejudicial against their property rights, because if we are acknowledging and I'm and it's not that I don't acknowledge that. But if we are acknowledging that we all tread on stolen land. Then, if we are approving a development, that of which we have approving or denying whether we've just read into the record. A statement that says, Well, actually, this isn't your property. It's stolen land, then. that is a you know. It's it's prejudicial. And and I think it's legal peril.

[213:03] Laura. If the the other piece that I wonder about, why wouldn't it be read? Not in conjunction with a particular item. but as a part of the opening of the meeting. I agree that you know board members would want to say, Yeah, this meeting. Let's do that. I'm not sure why, but if that's if that's what it takes fine. But I wouldn't attach it to a particular item on the agenda. I agree with Mark. I think that that could put undue pressure on the Well, it could put undue pressure. I'm going to let Laura go, and then Brad's up. So my recollection of the conversation, the training that we had about the indigenous land. Acknowledgement is that we should

[214:01] read it when it is pertinent to the matter at hand, and it it will influence our action. We are moved to act based on our acknowledgement of the land acknowledgement, so that it's not just performative. But it actually is consequential in our decision. And I think that's the reason why we were advised against using it in quasi-judicial, because it is not part of our criteria, and so it should not be consequential in a criteria based decision process. Right, which is why I was thinking it. It precedes them. It comes before as a matter just to kind of well. and I think it does come down to do. We, in fact, acknowledge that. Yes, this isn't our land, to begin with. and you know that could be again. Some people might find that a very difficult pill to swallow. And we don't want. The intent of this is not to create

[215:05] It's to create consciousness. I think that that's my takeaway from the presentation was, Hey, this is an important important piece of information. a piece of memory to remind us. And do we want that? I mean, you know I may be the Lone Ranger here, and I may be the only person that thinks it's it's relevant to our work, but I do think it is, and I'm perfectly willing to hear people say it's not relevant. Brad. I think you've raised all the salient points, including underscoring what Laurel's point from the attorney's office was, I guess, as a practical matter. I always envisioned that you would practice this at the beginning of the meeting, before the regular business took. Right. Maybe after the close of regular business, too. So if that really is your intent, maybe it just says, at the

[216:03] prior to the beginning of regular business, or at the conclusion, and or at the conclusion. because the caution is well heated that you wouldn't want to have it feel attached to a specific action. Well, again, I think I remember from the training that we were cautioned against just making it a routine part of business, that it should not be routine, it should not be performative. It should be something that we evoke when we are moved to act upon it, when it is going to actually make a difference in something that we are talking about. And I it's not that it so. Ml, I don't. I don't think it's as black and white as does this make a difference in our business? If yes, we should do it all the time, and if no, we should never do it, I think it's of the training, as I recall it was, we should evoke this when it is especially relevant to that particular item, and we and we are linking it to the work that we are doing.

[217:03] Hmm. So I when I when I look at this I think the wording that we have here now is is broad enough. The Board may incorporate the land. Acknowledgement where? Appropriate, at the request. where did? Where did the 2 people go? Did that just get deleted. Right! Oh. Okay? All right. Okay, But also, I think we have to acknowledge the attorney's office. Request that we not read it, not read it, as included in a quasi-judicial matter included in. is not the same as before, or at the beginning of the meeting of a quasi-judicial item. So I think the wording that we have here. I think we all have thoughts about this, and I think the wording here allows

[218:06] 2 members to request it. The beginning of the meeting at the end of the meeting. and and not during a quasi-judicial hearing. So I kind of like it the way it is. It's just. It's just difficult. It's easy to say that if there is a quasi judicial matter on that agenda that it can't be read. Right. It can't be read as part of the record of the quasi-judicial matter. Right, and that isn't clear enough to say that acknowledgement shall not be read as part, maybe as part of a quasi judicial matter. Okay? Then then it's clear. Yeah, okay, can I ask, complicate this further? I assume that a member of the public could read such a land dedication as part of public testimony for a quasi judicial item. Right?

[219:05] Yep, that's their free speech rights. Yep, okay. So maybe shall not be read by the board. Bad. sure. and I think I will leave if it's okay with you. All the city of Boulder Land acknowledgement, or a summary of it, so you can decide how you want to proceed. I like what Brad said, that it may be included, I would say, before or after legislative items that gives that gives more flexibility to. Should we just say, as part of the same way that we did for quasi-judicial? Because I assume you could do it in the middle. If you were so moved. sure. would you like to say, or other items?

[220:01] Yes, or other items? Sure, if there's like a matters item or something? Oh, right. Great moving on. Just gonna keep scrolling. Okay. I like that. You move us along. Good! Good! Okay. So Laura suggests, adding here in a new section, that board members may individually ask clarifying questions of staff and or seek staff assistance with drafting motions, either in advance of or during the relevant board meeting. This is a discussion we've been having a little bit via email. One of the things I do want to clarify is clarifying questions. One of the things that we don't want to have happen is you seeking information that's not in the record. So clarifying questions are fine, but trying to get more information outside of the record we want you to do in a public meeting, so that people. So the applicant can respond or the public can respond to that.

[221:01] So would you like me to add this somewhere? Yes, okay, great. Add. Laura also added language to clarify the last part of this section. Just, says a friendly memo will be incorporated. The original motion maker affirmatively accept it accepts it. It was a little bit confusing. So that's some clarification language. Didn't we say that friendly amendments weren't real? We did. But we've we've come to be believers in in that, in that that golden moment between when someone has made a motion and doesn't have a second yet, or someone says. like Kurt, I have emotion. I'm here. Here. It is like seeking

[222:08] drafting help, etc. But if it's been mo, if it's if it's been moved and it's been seconded. then there's then then there is. There is no friendly amendment. It's it's the process of amending the main motion. Okay? So the next one we talked a little bit about adding in amendments, proposing amendments, and things like that. There was some confusion when we read over this, that there that this language could potentially allow other conditions to be added after an approval or after something's been approved which we can't do, it has to be a part of the approval right to say. this product is approved if this criteria is changed to match what our criteria is. So this was actually another Hella suggestion, she said. It sounded a little bit confusing, kind of muddy, the waters on when

[223:02] when we could allow amendments. This is also already discussed in Robert's rules, it's still allowed, and we reference Robert's rules. So she had suggested deleting it open to what you think was this was. we're talking about your deletion there when when conditioning. Okay. I can uncross it if it's easier to read. No. so I'll just say for myself, I did find this confusing. I've had to read it several times to understand that you're talking about? Do we package amendments to a motion? Or do we make separate motions to the main motion? I don't know that it's necessary. I'm okay with the deletion. I think that we function pretty well. But if there's something that we need to talk about in terms of packaging motions together or making separate motions. Maybe we could reword it a little bit.

[224:07] Well, I think the so I think I wrote this originally. I think so. But it's been, yeah. It's been a little okay. I think I wrote this originally to address in a quasi-judicial item, whether or not we can have multiple motions. And let's just take conditioning of a project separate from the main motion. So I think to me, that's a question of can we? Is that is that legal to say,

[225:03] I move to approve the Smith project. The Board votes on it. It is approved. 7 0, and then I moved to condition the Smith project that they have to. Add play slides to the pool as a and and that's voted on for 3. You're saying that. So the reason I'm saying no is approvals with conditions are saying, if this condition is met, then we can approve. What you're saying is, we've already approved it. And now we condition it, which I don't think is allowed. Okay, yeah. So so that's what hell is trying to do in in a site review situation. And it seems like we've actually adopted this structure that we can have multiple motions except for when it comes to site review. Use review, then those conditions have to be incorporated in the main approval. Motion and and board members need to

[226:07] vote up or down on the conditioned main motion whole package. Yeah. okay, this is not true for denial. Then I would. Then I would say, yes, we would strike this because that does not. That doesn't comply comport with that. Okay. just to be clear. That's not true with denial findings. Right? Because denial findings are summarizing what you've said on the record. So when you continue that you didn't vote to deny. And then we later approve the denial findings. That's different than what we're talking about here. Yeah, okay. there was just a little bit of a short drafting note here. This this language originally came from the original rules, and it talked about requiring a vote for approval. Well, sometimes you're like quasi-judicial matters you can deny vote to deny. So we just cleaned that language up a little bit. The next section. This is Laura and this is again

[227:05] just clarifying a little bit of language here. And, Brad, I'm sorry to do this. There, there are 2 things I missed in earlier. Yeah, lookings at this one is in 6.8 and one's in 6.9. So okay, yes. The item of if a person refuses to vote that it's recorded in the affirmative. There's a little tickler in the back of my brain saying that that might be at odds with Robert's rules. It is. Well, I don't know if it's at odds with Robert's rules, but our code says that for council or for planning board. Okay, yeah. And under, I guess if it says it says it, how does that. I think, do we need to make a distinction with somebody who abstains because that's different than refusing to vote in a sense that's abstaining from a vote. Does the code speak to it? And there's also recusal?

[228:01] Well, recusal would mean I can't vote because I've got a conflict that's a little different. I just want to make sure that the difference is clear. Yeah. and maybe we can't resolve that tonight. But I just read refuses to vote as abstains. Is there a difference between abstaining and refusing to vote? Refusing to vote would mean, I'm sitting here not saying anything potentially. And I have witnessed that at council on multiple times. But it can happen. And the mayor. I don't know, the mayor finally said, Okay, and moved on, but the vote was recorded as a positive. You can't not vote if you're present, and if it's in the code that way, that it is what it is. But and it's not council. It's just for boards and commissions. It's in 2, 3, 1. So again, I don't know if we can resolve it tonight, because there's abstentions which are different than not voting in my mind, which are different than recusals, too.

[229:04] And the code just says refuses to vote. It doesn't make a distinction between the 2. So well, I'll for the record. I've just said it. I don't know what the answer is. Yeah. And then, on continuances. I don't believe the director can quote unquote, continue a matter. I think we can reschedule a matter because a continuance means it's been lawfully noticed. The public knows about it. and then they come to the hearing, and then the board says, well, we're going to continue this to a date certain. and here's the date. So they've been given the notice by virtue of reading the newspaper, showing up at the hearing and then finding out it got continued as opposed to. If it's not continued to a date certain, then it effectively needs to be rescheduled and renoticed at that point, and I don't think a director or any administrative entity should be able to. So quote reschedule, I just switch it to reschedule. Yeah, so reschedule. Yeah. But we do want to allow it. In case I'm thinking of the time that we had to move, that

[230:07] because the packet wasn't correct, we had to move it, and it was a few days before. And so what that happens. But technically, we would probably just advise the Board to continue it, because it was improperly, you know, noticed, or something we could do that, so maybe we could say something instead of at least 48 h, we could say before the legal notice goes out. I think by changing the word to rescheduled. You're good. Okay? And then keeping the rest rest as continued, yeah, so sorry about that late thing. That's okay. It's good to talk about it now, while this is being discussed. we appreciate it, Brad. Thank you. Okay. So Laura did some rewording so that it was clearer in this section, and then she added,

[231:00] The section at the end, talking about denial findings and straw polls. I'm happy to read it if it's helpful. And then there was another suggestion as well. But for the 1st one about straw polls. Are you guys? Okay? With that addition? Yeah, yeah, I have a question about Laura's added or changed terminology, about at a rehearing failure to receive affirmative project approval by 4 or more members will result in denial of the proposal. So imagine that we have a meeting. Somebody's absent. There's a 3 3 vote. So it goes. Yeah, right? It goes to rehearing at the rehearing. Unfortunately, someone is again absent, and it's 3 3 vote. Then that's a permanent denial. That's the way it's reading. To me. It seems like, really you should have an opportunity to have a rehearing until you get

[232:00] of full a full board. Support them. I support it. It's just. I think it says 4. I thought that. So we skip. So I asked this question before I said, if we schedule a rehearing is that obligated to be a full board, or is it? If we have a quorum, we go ahead with the rehearing? Because why go ahead with a rehearing? If you don't have a full board. If they're entitled to a full hearing before the full board, we can't require everyone to be here right? So we would just infinitely have more rehearings until we get a full board or enough on one side. Yeah. yeah, I do worry. I mean, in theory, you could never. There's a scenario where you'd never have a full board. Right? Somebody's sick. Then. The next day somebody's resigned. Then the next meeting hasn't been filled yet, so now 3 months have gone by, or 6 months gone by. Hopefully they would vote on a denial or or something. But yeah, that's the downside of what you're talking about, Kurt.

[233:02] But this is still saying that, You only need 4 people to. Okay. Deny. It's in our rules that you have to have 4 board members to approve a project to take any action, to take any action. It's in the code as well. Right. But if you can't approve the project, then I think it's also in the code that failure to approve is a denial. Right? If that's in the rules, I don't know if that's in the code or not. That's that's been in our rules. I don't know if that's in the code I could look but well, you can't have an approval without 4. And so the question the only question is, is it a denial? Do you want denials on technicalities. Is it a denial? If you can't reach 4 for approval.

[234:04] it is now we've had that happen. So so it's better if it's not that way? What's the question? Well, the way I read at a rehearing failure to receive affirmative project approval by 4 more members will result in denial of the proposal doesn't leave open the possibility for another rehearing a 3rd hearing, a 3rd hearing, and but the only the only purpose of that 3rd hearing would be if you had a full board. sure, or a different makeup of the board, or whatever I just, I'm worried about. You know a project. Okay, there's split decision, but if there were a full board

[235:02] it would probably get approved but for and you've got 2, you know, 2 meetings where at both times you don't have a full board, and that just becomes a denial. It doesn't quite seem right. I don't know how mathematically that works, because if there are 3 members that are willing to deny. And only one person was absent. And then you swap out the absent. Maybe that works mathematically, maybe. Okay, maybe. Yeah. I guess it depends on who you swap. I just you know this is the purpose of having a quorum right? How many people do you need to conduct business, and if we're going to be hamstring, that a quasi-judicial project that is not approved can get infinite rehearings until we have a full board, well, I think that the problem, the fundamental problem is this requiring 4 board members? I

[236:05] why isn't it just a majority? Yeah, why isn't it just a majority? I don't know. I think, that that should change, but that's in the code. So that's harder to change. That's why I mean a 3, 3 and a 3 3 is still not a majority. It's not a majority in either direction is the problem, too. Right? But there there is, you know, in in the in the whole thing of democracy and voting. If you can't, you have to reach a majority to have a decision. And so if you can't reach a majority. Then you don't have a decision in the affirmative. Hence you have a denial. I'll just say that all I did was reword. A sentence that I thought was unclear, that previously said, the failure to receive an affirmative vote of 4 members on any subsequent motion on the same item shall result in defeat of the item. Well, I can imagine a lot of motions about a project that are not an approval vote, and so you could have a vote to approve a vote to deny.

[237:18] But if you don't get 4 either way, the project is defeated so that that didn't seem right. So I was just trying to clarify what direction it runs in. If that makes sense. Hopefully, I explained that. Okay. bye. I think your sentence makes sense, Laura, but so there's the crossed out one. And then, at a rehearing failure to receive affirmative project. Approval by 4 or more members will result in denial of the proposal. I mean, that's it's like still holding to the 4 and talking about the consequences relative to the the vote.

[238:04] Yeah, I'm not concerned about lack of clarity. I think it is very clear I'm just concerned about the ramifications. And maybe we're okay with it. What about what about saying? And I experienced this at a at a hearing? The applicant at a rehearing the applicant may require a full board the President at the rehearing that. No, we can. Can't require that. No. But the applicant has the opportunity to request a rescheduling right like. If they don't like the makeup of the board. Who's there that night they can request a withdraw or a rescheduling before the hearing happens within 48 h. Notice right? I guess part of the or the board would have to, or the board could do it. Yeah. Well, they're not going to know who shows up until the night of the hearing. but the board could reschedule it if they? Yeah.

[239:02] well, I mean, this is this is what we have. Now, this is just what's in the rules. Now. So are we suggesting a substantive change to the rules. Here. No. Well, I am, and and but your suggested change is my suggested change is that the rules on a rehearing should be the same as on an initial hearing, which is that if you don't get an affirmative vote of 4, you can have a rehearing. And yeah, that might mean you have 3 hearings or. Maybe we said we said, maybe we set a maximum number of rehearings. Well, that's what this does. This sets a maximum number of rehearings of 2. But I feel like it's sort of due process to to applicants to for us to provide enough of a board that we can meet this sort of arbitrary vote of 4 threshold instead of that, can we honor the spirit of that by saying that at a rehearing

[240:09] the applicant may request a rescheduling before the hearing has, on the night of the hearing, before the hearing begins something like that, so that if they, if they look at the board, and they say this is the same 6 people that heard it before. I don't want to go through this again. They could withdraw, or they could ask for a rescheduling to a night with a full board. I'll just voice that it makes it be a little uncomfortable to imagine this kind of. Correct. Cycle of board picking. you know. It's oh, wait a minute. I don't want this one tonight. I want a continuance. Oh, I don't want this one. I want a continuance, and I know it wasn't your intent, Kirk. But unless you're specifically calling out the scenario where there's only 4 members present. If you simply say anytime, somebody doesn't get 4 votes or more. And but you had 5 people.

[241:01] you know. Then you get into problems. I think you're talking about only the 4 board members, and there is an opportunity for the continuance in that next section. The Board can continue for good cause, right? If I, the result's gonna be the same, maybe that maybe you guys would decide. That's good cause. Sorry, Brad, I didn't mean to. No, no, you're right in the scenario. I know you don't mean, but if there's 5 and somebody gets a 3, 2 vote you know, that's not 4 votes. They automatically get a re here. 5 people there. So I think it. It fails at 3, 2, right. No. At 3 to 2 the applicant should be allowed overhearing. So if it's denied 3 to 2 at the 1st hearing, at the 1st hearing they get a rehearing. Right.

[242:05] I'm just reluctant to use the Board's time for 3 hearings on the same project, like, I think there's we are a board of 7. But 7 people are not required to make a decision right? As long as we have a quorum we can conduct business. So I'm reluctant to overrule the concept of a quorum, I guess, for quasi-judicial hearings the applicant, if they don't like their chances, they can always withdraw well, they they can withdraw with 48 h. Notice? Right? I think they can withdraw during the hearing at any time before we start deliberations, can't they? Oh, okay, right. Withdraw, not reschedule. Okay. I mean, I just wanted to raise it. It's it's probably a rare thing, anyhow. Hopefully, it's a rare thing. I have another, though point about, how are we resolving this? Are we? Before we move on?

[243:07] I just want it to be resolved, and don't forget to the council. It's not the last time they could be heard too. Right? There is a call. There is a call up proceeding with council as well. So if you have a 3 3 split, just like we did with that one project. Then there was an opportunity for council to call it up if they wanted to. Okay, so it's not the only opportunity are we in agreement with the language at a rehearing failure to receive. etc, with the green, the the green strikeout, and addition? Are we good? With this. Yes. I will accept that. Okay, great. But I have a question about the part up above which sort of it lists the the possible failures. So it lists 3 to 2, a tie, or 3 to 2, or 3 to one in favor.

[244:01] But you could also have foreign students, 2 to 3 in favor. Right? So you've got 5 members. The vote is 2 to 3 in favor that should qualify you for rehearing no. Yes. Yep, but we. As long as you don't as long as it isn't, for if you don't get the 4. So I would suggest just changing that to in the event that there is no affirmative vote of at least 4 members to approve or deny. Can you, in the event that there is in the event that there is no affirmative vote of at least 4 members to approve or deny? Yeah, rather than trying to list all the possibilities.

[245:03] Cool. That makes sense. Yeah. Good. Change. Okay, does that make sense? Yeah, great. Are we okay with Laura's straw poll language at the end of this the other addition that Laura had was a board member should vote in favor of adoption of denial findings. If in the Board's members judgment, the findings accurately describe the rationale for denial provided at the project. Hearing the reason I wanted to discuss this is, I'm not sure that we want to require a vote in any direction they may vote to deny the denial findings for any number of reasons. So that was kind of my hesitation. With this I can see where Laura is going, though, that you want to be able to vote in favor of the denial findings, even if you don't agree with the denial, but that you agree that the denial findings accurately portray the hearing, which I think came up maybe last time. So that was just my thought on it, but wanted to propose that to you. I'm happy to add this, if you would like me to.

[246:05] I mean it's come up a couple of times. What does it mean to vote in favor of adopting the denial findings, and the last the 1st time that we did this, I think people were reluctant to vote in favor of adopting the denial findings because they did not agree with the denial itself. And then another time that we did this, people didn't want to adopt the denial findings because they didn't agree with every single finding. And then, the last time we had this happen. people agreed to adopt the denial findings, even though they didn't agree with the denial, because they thought that the denial findings clearly and accurately described the discussion that was had. and that to me, seems like the best way to do it. And I'm putting this forward, you know. Maybe people don't agree with this, but the denial vote itself is clear. Who wanted to deny it and who wanted to approve it? And then the adoption denial findings is just about clarifying the legal record. Why was this project denied? It's just? Is this an accurate summary of what we did? And we can either try to Wordsmith, that in the meeting, or we can let Staff go away and do it.

[247:11] And then we adopt the denial findings. Right? Yeah. So that's what I'm trying to avoid is this confusion about what does it mean to adopt denial findings. It doesn't mean you agree with the denial. It doesn't mean you agree with every single thing that was said. It just means that you agree with this is an accurate description of the record. This is why the denial happens. Yeah, I agree with this. I just have some concern about the terminology. A board member should vote in favor. Blah blah blah. I think it would be. in my view, preferable to just say, a vote in favor of adoption of denial findings is should be construed as of a vote that the findings accurately describe the rationale, or something like that.

[248:04] I don't. I'm worried about something just shorter like a board member's approval of findings does not imply their approval of the denial. or you could do it that way right? I like that. Claudia had her hand up. Sorry. I'm on board with where Kurt took this. I wanted to say, I'm I'm also uncomfortable with language and the rules that compel a particular vote. I'm totally fine with that. The Board. What do you think about this language? Does that work? A board member's approval of the denial findings does not indicate that the Board member is in favor of the denial. Could we say a board member's approval of denial findings indicates that the Board member agrees the findings accurately. Describe the rationale for the denial provided at the hearing.

[249:03] We're just saying what? No, I see, Claudia saying, no, she doesn't like that, Claudia, do you want to talk. I, again, I'm not comfortable with language that that specifies or or interprets a board member's vote in any particular way. I think it's appropriate to say something like it. It should not be construed to indicate something about supportive denial, but not to say what it does indicate. If that makes sense. Put that forward, I'd say, does not necessarily. Yes, yes, thank you. I was a typing. A board member's approval. Denial findings may not indicate that the Board member is in favor of the denial I wouldn't use May, because that can be interpreted as permission. I think the wording here a board member's approval of the denial findings does not necessarily indicate that the board member is in favor of the denial is helpful. It's better than what we've got now, and I appreciate that I see a thumbs up from Claudia.

[250:06] What do you think? Kurt? Yeah. A thumb up. Mason. Yeah. Okay, all right, let's do it. Thank you all for that helpful group. Wordsmithing. Thank you for listening to my hesitation. We're close. Yes, we are We changed a couple of languages just in in response to what you guys had commented last time. The 1st one has to do with withdrawals. Sorry! I will make sure that this section is with the paragraph, but. the board shall continue the hearing. If the applicant fails to appear on the this is splitting up, I think a long sentence, or something like that was the idea. Here I have a question about that. It says any withdrawn application is without prejudice. As to reconsideration of the Board within one year. Do we need the within one year? There?

[251:01] I don't think so. That was probably more time limiting when the when the same application could come forward. But I don't think we need it right, because it makes it sound like like after you can reconsider it within a year, but after a year you no longer can, which is, I think, not the intent. Thank you. Good catch good. Thank you. We did edit this one a little bit for clarity. so now reads no obligation denied or or appeal appeal decided by the board can be reheard or reconsidered within one year. This is where the one year comes into play, I guess. except in the event of a tie vote or a vote of 3 to 2, or vote of 3 and one in favor for approval. So this kind of goes back to what you had amended earlier, Kurt, so maybe I can change this language to reflect what we have above. That would be great.

[252:02] I will not subject you to watching me edit that right now, and just as a legal matter, what is considered the same application like. if you submit, the you know pretty much everything's the same except you move a window. Is it the same application? I don't know. Substantial. Maybe that's I think it's at Staff's discretion. I would consider a substantial change, you know, a different application type. Okay, good. So not a window, maybe 2. And that was the last change that we had. I am seeing a typo in 16 6.4. It's supposed to say, No. 1 4. I'm sorry. No, you're okay. It's supposed to say we'll be adjourned by 8 30 Pm. Good job, Brad.

[253:02] So at this point we have a couple of options for you guys either to adopt as amended tonight, and I will clean that up. or to bring it back a clean version to double check everything. Well, this certainly. So, 1st of all, thank you for all the work and running this tonight. And but this did result in substantially more changes than I was anticipating. Are people good? Bringing this bringing this back versus adopting it tonight. I'm actually fine adopting it tonight. If people are okay. With that, I think we went through them all. We approved them all. I trust Laurel to, you know, be a faithful recorder of what we decided. I don't feel like there's anything that's still open, and if we adopt them tonight we can put them right into use. Same, and we can always open it again, too. If I misstate something, we can bring it back. Okay, I agree with that. So

[254:02] then I'll move to adopt the Revised Planning Board Rules of meeting procedure as revised on July 20, second, 2025 in the planning board meeting. I'll second okay? And just to be clear, that includes maybe a couple of revisions that are, yes, as revised. Yeah. Yeah. Okay. Yep. Okay. Any debate? Okay? Mason, yes, Laura. Yes, Kurt, yes, Claudia. Yes. Ml. Oops! Yes. Okay? And I'm a yes, so unanimous adoption of our new rules of procedure, and we'll put them into use. Okay,

[255:01] again. The hour is late. Are there any other matters from the board? Matters from the director? Okay, then, with consent, we will adjourn the meeting. Good night, everybody! Good night, everyone. Good night, Claudia. Good morning, Claudia. Good morning, breakfast time.