Loveland's Independent News Source
Secret Motives
Behind Council
Support of  
"Amendment 9"
Loveland - May 7, 2012

Last Tuesday, Loveland Mayor Cecil Gutierrez entered city hall confident about his position on a controversial vote
that would occur that evening.   He had already met in private with the applicant for the change to be voted upon,
McWhinney, and already had his mind made up.  He agreed in advance with McWhinney not to share with the
public his true motivation for supporting the proposed wholesale changes to the Millennium General Development
Plan (GDP) innocuously named only “Amendment 9.”

The Millennium GDP is the governing document for future developments within the PUD (Planned Unit
Development) of Centerra which acts instead of zoning restrictions used in other parts of Loveland.  McWhinney's
Centerra development contains 2,916 acres within the PUD.  Any future developments within this area are
governed by the Millennium GDP which McWhinney is seeking to change in many aspects under the name of
"Amendment 9."

Backed by staff generated talking points and an aggressive McWhinney lobby, Gutierrez knew the potential for his
vote in favor of Amendment 9, without disclosing his secret motivation, would likely be on the prevailing side
during the council meeting that evening.  Charmed by the prospect of a ribbon cutting ceremony and positive press
coverage, Gutierrez was unlikely to change his opinion regardless of what he heard in the public hearing.

Amendment 9 was rushed through Loveland’s Planning Commission only two weeks before with an urgency as if
the building was on fire.  Despite protests by planning commissioners who were not given sufficient time to review
hundreds of pages of relevant material, staff got their slim majority vote by counting one commissioner in favor
who already left the meeting early and pushed the package onto city council for a  May 1, 2012 deadline vote.

Once a champion of greater public participation and transparency, Gutierrez would become that night the architect
of a vote by Loveland’s City Council described by the attorney representing The Promenade Shops as,
“..a broad
scale curling back of the public review process”
and arguably the largest blackout of public notice for new
developments in a single vote in the history of Loveland.

Having spent much of his life as a band teacher, Gutierrez has become a soft touch for the shrewd McWhinney
brothers who know how to dangle a carrot to get a vote.  Gutierrez was briefed privately, as well as a number of
other councilors, that a significant employer needed to move into a parcel owned by McWhinney east of Promenade
Shops.  He was told the number of jobs he could add to his desired legacy of job creation was many but not unless
he helped resolve one small matter; that annoying public review process in Centerra.  Gutierrez didn’t agree right

The Distraction – A False Choice

Instead of being briefed about the many wholesale changes Amendment 9 would bring to the Millennium GDP and
the long-term potential consequences, Gutierrez and some of his colleagues were instead told about an opportunity
for bringing jobs to Loveland by re-locating an existing light manufacturing facility in Loveland out to Centerra.  
According to Betsey Hale, Loveland’s Director of Economic Development, that employer would probably add jobs in
the new facility thus retaining an important employer while also bringing new jobs to the city.  Some on the city
staff believe the company is Woodward Governor located on N. Wilson Blvd. in Loveland.  

The impediment, the councilors were told, are the overly stringent requirements in the Millennium GDP requiring
public and council review for developments allowed
“by right of zone” throughout the rest of the city.  Confused,
some councilors questioned the “
overlay” requirement not understanding the fundamentals of how a GDP exempts
a developer from regular city zoning laws in a balanced agreement between the developer and the city to allow a
large scale planned development.  

Senior city staff emphatically endorsed McWhinney’s Amendment 9 for one obvious reason.  Amendment 9
removes the need for public review, planning commission review and even city council approval for nearly all
industrial developments among a number of other important changes to the Millennium GDP.  However, staff
retains the right of review and approval thus shifting power away from the elected officials, appointed community
volunteers (planning commission) and adjacent property owners (public notice) and into the hands of city staff
exclusively.  In the case of light industrial, a development as large as 500,000 square feet (or 12 acres) can be
approved by staff without even informing the adjacent property owners, planning commission or city council as
part of Amendment 9.

To his credit, Gutierrez did not agree with the entire change and continued seeking a compromise despite efforts by
staff to gain his early support.  He inquired about making the change in the review process temporary and also
narrowing the scope of the changes to accommodate the one company move he was told necessitated the hasty
approval of Amendment 9.  Staff response was swift and negative.  They told the Mayor time was of the essence and
starting all the required notices over again would take too long – they could lose the secret employer to another
city.  McWhinney and staff lobbied for the Mayor’s help until he finally capitulated hoping the good news about the
employer would overshadow any criticism by his earliest supporters regarding his political about face.  The Mayor
elected on transparency and greater public involvement was about to shut the door in the public's face.

Like his predecessors, Gutierrez found himself painted into a corner by a vintage McWhinney lobbying trick
dubbed the “False Choice.”    The McWhinney false choice is commonly presented as,
"Either support exactly what
we have offered or take responsibility for losing an important employer in the city

McWhinney employed this same tactic regarding a secret fortune 500 company they needed to attract using money
escrowed with the city to improve the I-24/US 34 interchange.  When council failed to capitulate and kept the
funds after it was learned the employer was really Agrium moving from Greeley, McWhinney withdrew their
request.  In the end, the intersection improvement was saved and Agrium moved into Centerra anyway as planned.

The Real Changes

Amendment 9 was described by Jennifer Biever, attorney representing the Promenade Shops, when testifying to
Loveland’s Council on May 1,

“As drafted, the public review amendments far exceed the types of developments that are articulated as the
intent by the city’s economic development department.”
   See video clip of her presentation (4:50)

Biever, representing the owners of largest single retail area in Centerra, was allowed to address council only
during public comments and spoke for just over 4 minutes.  Following her comments, Buddy Meyers, Chairman of
Loveland Planning Commission, also testified against the Amendment 9 stating,

See Buddy Meyers comments (3:50)

“When you look at some of these changes requested these parcels should be allowed to change for a limited
period of time…but....why would you change this area next to Mountain View High School to be heavy industrial?”

In response, Councilman Ralph Trenary stated, I have serious doubts this is ready for council approval tonight.”  
Trenary was the only councilor to vote against the many changes to the Millennium GDP called Amendment 9.  
See Trenary questions to and answers from Buddy Meyer

Loveland developer Ed Klen who built Anasazi Business Park in east Loveland also cautioned the council from
rushing into a decision that evening.  Klen pointed to the fact staff skipped over what they described as simply

in the first three items of the amendment speaking only to the public process part of the changes
created by Amendment 9.  Klen explained the definitions are
"vague" and warned councilors the potential
consequence of not even considering these terms as potentially "
catastrophic."  He pleaded with the council to look
at the
"devil in the details" the planning commissioners were unable to deliberate on during their rushed meeting.  
See comments to council by Ed Klen

Following the public testimony where the Promenade attorney, Planning Commission Chairman and local
developer Ed Klen spoke, Mayor Cecil Gutierrez closed the public hearing and asked staff to respond to the
"questions" raised by the three.  None of the speakers asked "questions" but instead testified to areas of
Amendment 9 they found troublesome and requiring proper review by council.  Gutierrez then asked if staff had
"good notes" apparently so they could refute what was presented by the three previous speakers.  The
purpose of a public hearing is to allow various parties to submit information for the council to consider.  

The Least Informed

A number of councilors who spoke appeared unfamiliar with the proposed changes to the Millennium GDP and only
took their turn to mimic (or in one case read) talking points distributed by staff (on behalf of McWhinney) as
reasons to vote for the plan.  Councilman John Fogle fumbled a softball question to staff when he mistakenly asked
how much harder will it be to attract maybe a 200,000 square foot high tech manufacturer to the city.   Fogle was
alluding to the secret motive Gutierrez and others were harboring for ignoring expert testimony but appeared
unfamiliar with the terminology referring to the Millennium GDP area as that "North South" area.  
 see Councilman
Fogle fumble a softball question for staff

Fogle wasn’t the only councilor to pretend in public the motive for change was for a hypothetical company when he
likely was briefed in private a more concrete scenario.  Councilmen Farley and Taylor also appeared to be
struggling with the terminology of the GDP and instead repeated the platitudes supporting the few parts of the
Amendment no one spoke against.  As if they hadn’t heard or maybe understood the expert testimony, neither
addressed the areas of concern like allowing heavy industrial next to a high school raised earlier in the meeting.

Flawed Process

The May 1, council vote on the sweeping changes to the Millennium GDP represents an important milestone for
Loveland’s City Council and especially the mayor.  Swept into office over anger resulting from secret McWhinney
meetings with councilors, unstated motives in meetings and a largely phony public process, Cecil Gutierrez, Joan
Shaffer and perhaps Cat McEwen have become the very same people they replaced on council.  

As if returning to 2006, the council largely ignored the expert testimony, parroted inane talking points without
engaging the staff or applicant with any substantive questions and rushed to vote for something they hardly
understood - all for a motive they were either unable or unwilling to share with the public at large.   By not sharing
their secret, the council could easily dismiss public comments in the belief those testifying didn't understand the
whole picture.  It is for this reason, councilors are barred under state law from considering ex-parte (outside the
hearing) information since it is difficult to refute arguments or reasons shared by the applicant with city officials
only in private.

Councilwoman Joan Shaffer complained aloud that she wished they had more information regarding the public
meeting McWhinney conducted regarding the Amendment after it was mentioned by the city manager.  Had
Shaffer read her meeting package, she would have found the entire public notice and details provided by the
Promenade Shops attorney regarding the flawed public notice process.  According to the Promenade Attorney
Jennifer Biever, McWhinney failed to fully disclose to both the public and adjacent property owners (her clients)
the true and complete set of changes proposed as part of Amendment 9.  

In addition, Loveland’s Director of Development services, Greg George, defended the rush through planning
commission on the owners of Promenade Shops for submitting their objections to the Planning Commission against
Amendment 9 the same day as the meeting.  As a result, the planning commissioners took a break to review quickly
the 95 page report submitted by the Promenade Shops protesting parts of the Amendment 9.  What George
conveniently failed to disclose to council was the reason for Promenade’s late submission.

The Promenade owner’s attorney, Jennifer Biever, had received an insufficient notice of the changes from
McWhinney as part of the required public notice.  She and her client only became aware of the true changes
regarding building shadow requirements after the agenda for Planning Commission was posted on the city’s
website days before the meeting.  Biever provided a table indicating what was and was not included in the public
notice to alert city staff and the councilors that sufficient notice was not provided.  Apparently, Councilwoman Joan
Shaffer and her colleagues never took the time to read that information rending efforts by the Promenade's
attorney to ask for reconsideration futile.

Environmental Justice – why put Apartment Dwellers More At Risk?

Councilwoman Shaffer inquired about the exclusion of public notices for Multi-family residential areas when
developing industrial outdoor manufacturing.  Shaffer appeared content with the staff response .. and didn't voice
any further concern for the hundreds of apartment residents in Centerra.  

In regular city zoning, zones allowing certain industrial uses would not normally be located next to any residential
property regardless of whether the occupant owns the property.  Loveland’s apparent willingness to expose
apartment residents to potential hazards more easily than single family homeowners may draw the attention of
the Colorado University at Boulder Environmental Justice Center.  Environmental Justice refers to situations, like
this one, where people of a lower socio economic class are thought of as less important by lawmakers and
consequently more likely to live near industrial manufacturers who could put them at risk due to the use and
accidental release of toxins into the atmosphere.

The Vote

Loveland's Council voted 8-1 to approve the sweeping changes to the Millennium GDP.  Councilman Ralph Trenary,
who by his comments appeared to be unaware of the secret motive, stated he could not support Amendment 9 due
to testimony the planning commission requested additional time to study the matter but was refused.  The
majority of the council appeared annoyed by the one detractor and in a hurry to pass the item the same evening
without more review or understanding.
Jennifer Biever
Attorney for Promenade owners
See video clip of her presentation
Cecil Gutierrez
Mayor of Loveland
What is a GDP?

General Development Plans
(GDPs) establish a framework
for large or phased projects in
developing areas.

The GDP process identifies
issues related to land use,
open space, transportation,
water, wastewater, utilities and
urban design and provides a
conceptual plan for integrating
the anticipated land uses with
the necessary infrastructure.

An approved GDP constitutes
approval of a master
development plan that will guide
all future improvements within
the defined GDP boundaries as
negotiated between the city and
developer or land owner.

Developers sometimes prefer
working with a GDP as it allows
a negotiated exchange between
the city and developer of
greater densities and more
mixed-uses than allowed in
regular zoning in exchange for
greater oversight and
community involvement in
specific decisions.

Properties that fall within the
GDP are not held to the same
zoning restrictions of property
outside the GDP.  For example,
property outside the GDP may
require extensive public
process to change the zoning
of one parcel of land.  Inside
the GDP, a developer has more
flexibility on where to locate a
particular use regardless of
more narrow and restrictive
definitions in a city zoning
ordinance that doesn't impact
the GDP.

What is the Millennium

Loveland's Millennium GDP
governs nearly 3,000 acres
in east Loveland known
generally as Centerra.

The Millennium GDP is
unique as parcels within it
are not contiguous with the
other parts of the GDP.

The Millennium GDP was
presented and negotiated
with the City of Loveland by
McWhinney to govern
developments within the
defined areas of the GDP.
Councilman Phil Farley
Loveland Economic
Development Director
Betsey Hale
Loveland Developer
Ed Klen
See comments by Ed Klen
Councilwoman Joan Shaffer