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HomeMy WebLinkAbout03/21/2024 - Planning and Zoning Commission - SUPPLEMENTAL DOCUMENTS - Regular Meeting Carolynne C. White Attorney at Law 303.223.1197 direct cwhite@bhfs.com www.bhfs.com Brownstein Hyatt Farber Schreck, LLP 303.223.1100 main 675 Fifteenth Street, Suite 2900 Denver, Colorado 80202 March 19, 2024 Planning and Zoning c/o City of Fort Collins Planning Department 281 North College Ave. Fort Collins, CO 80524 RE: Willox Farm #PDP220008 - Planning and Zoning Hearing – Applicant Response Letter Dear Planning and Zoning Commissioners and City Staff: We submit this letter on behalf of our client, Willox Development Partners, LLC (the “Applicant”), in support of its above mentioned Project Development Plan application (the “Application”) to develop the vacant parcel located on Willox Lane (the “Property” or “Willox Farm”). We provide this supplemental letter to the City of Fort Collins (the “City”) in response to issues raised in the November 15, 2023, and February 8, 2024, letters of opposition (collectively, the “Opposition Letters”) by attorney Jeffrey J. Johnson sent on behalf of Ms. Amy Kafka, who owns the property immediately adjacent to Willox Farm to the west. This letter is also in response to the comments made in opposition of the Application by Ms. Kafka and Mr. Johnson at the Planning and Zoning Commission (the “Commission”) hearing on November 16, 2023 (the “Hearing”). I. Ms. Kafka’s Opposition Ms. Kafka’s Opposition Letters and comments at the Hearing broadly argued (1) that the Application is incomplete because the Applicant has not reached an agreement that extinguishes Ms. Kafka’s purported easements and (2) that approving the Application and granting the requested modification of standards is against the public interest and detrimental to the public good. As explained further in this letter, and as we will explain at the continued hearing on March 21, Ms. Kafka’s arguments are mistaken. 1. The Purported Easement First, even if we assumed for the sake of argument that the Application is incomplete simply because the Applicant has not reached an agreement with Ms. Kafka, the Fort Collins Land Use Code (the “Code”) expressly provides that the Commission may still review the application. The Code provides that the Director of the Community Development and Neighborhood Services Department (the “Director”) may review an incomplete application if: Packet pg. 1 Planning and Zoning March 19, 2024 Page 2 1.the applicant, at the time of the application has ownership of, or the legal right to use and control, the majority of the property to be developed under the application; 2.the Director determines that it would not be detrimental to the public interest to accept the application for review and consideration by the decision maker; and 3.the applicant and developer enter into an agreement satisfactory in form and substance to the City Manager, upon consultation with the City Attorney, which provides that: a.until such time as the applicant has acquired full ownership and control of all property to be developed under the application, neither the applicant nor the developer will record, or cause to be recorded, in the office of the Larimer County Clerk and Recorder any document related to the City's review and approval of the application; and b.the applicant will indemnify and hold harmless the City and its officers, agents and assigns from any and all claims that may be asserted against them by any third party, claiming injury or loss of any kind whatsoever that are in any way related to, or arise from, the City's processing of the application. Code, § 2.4.2(C). Ms. Kafka alleges that she has an interest in certain purported easements, but her allegation does not suggest that the Applicant lacks ownership of, or the legal right to use and control, the majority of the Property. Her letter baldly asserts that reviewing the application is against the public interest because it expends public resources but she offers no particular reasoning for the assertion other than the allegation the application is incomplete. However, this is simply arguing against the City’s past decision to adopt a Code which expressly allows for the review of an application prior to the applicant obtaining full ownership or control of a property. Whether to so expend public resources is within the purview of the City, and the City has already concluded that processing such applications can be in the public interest. So, while the Application is in no way incomplete, even if it were, because Ms. Kafka provides no reason other than her purported easements for her claim that processing the application is against the public interest, the proper course of action would be to allow the Applicant to enter an agreement with the City Manager not to record any document related to the approval until full ownership and control is obtained and to indemnify and hold harmless the City and its officers, agents and assigns. See Code, § 2.4.2(C). And the Director has already agreed on the record to delay any consideration of this issue until Final Project Plan review. Thus, any purported easement is not a barrier to the of review and approval of the Application. Packet pg. 2 Planning and Zoning March 19, 2024 Page 3 Furthermore, Ms. Kafka does not possess an easement across the Property. To support her contention, she references the Farm Development Agreement dated April 5, 2013, and recorded with the Clerk and Recorder of Larimer County, Colorado, against the Property on April 8, 2013, at Reception No. 20130026532 (the “Farm Development Agreement”). The Farm Development Agreement provides: The parties have agreed to and acknowledge the following: 1. Owners of [the Property] will grant and record for the benefit of the owner(s) of [Ms. Kafka’s land] an easement through [the Property] to connect to the sewer located in the parcel east of [the Property] (the trailer park). This easement will be 20 feet wide and have a provision stating that the easement will terminate only if a sewer becomes available on West Willox Lane on or adjacent to [Ms. Kafka’s land]. This easement will be prepared and recorded by JR Engineering and will be located as indicated in the attachment to this agreement. [emphasis added] Ms. Kafka claims that either this Farm Development Agreement or documents subsequently recorded in 2015, which purports to be an easement (the “2015 Purported Easement”), granted her an easement. The Farm Development Agreement merely contains an agreement to grant a sewer easement at some point, but it is not a grant of easement. Nor does the 2015 Purported Easement constitute a valid easement because it does not comply with the acknowledgement requirements of Colorado Revised Statutes Section 38-35-101, et seq., nor was it signed by any purported grantor. The purpose of the Farm Development Agreement was to ensure that sewer service could be provided to Ms. Kafka’s land, either by the grant of an easement, or by sewer becoming available to serve her property. The Willox Farm PDP will require construction of a sewer line, which will terminate in a manhole immediately adjacent to Ms. Kafka’s property, thus providing her property with sewer adjacent to her property, exactly as envisioned in the Farm Development Agreement. Thus the best and most expeditious way to achieve the intent of the Farm Development Agreement would be to approve the PDP so that the Willox Farm development proceeds, and a sewer connection is provided to Ms. Kafka’s property. Further delay of the PDP for this reason only lengthens the time between now and the provision of a sewer connection to Ms. Kafka’s property. Despite this, however, in order to provide some comfort that the developers of Willox Farm acknowledge and intent to abide by the Farm Development Agreement, a note has been added to the plat, as follows: 19) Document recorded at Rec. No. 20150068974 shall be vacated by separate document upon construction of a sanitary sewer connection for Parcel 9702200002. Following the applicant’s addition of this note to the plat, staff is no longer recommending a condition of approval addressing this issue. Packet pg. 3 Planning and Zoning March 19, 2024 Page 4 2. Modification of Standards and Adequacy of Buffering As to Ms. Kafka’s arguments against the granting the modification of standards requests, most of the points from her Opposition Letters and comments have already been addressed by the intervening changes to the Application. The proposed density within the residential cluster development is now within the specifications of the Code and the Applicant is no longer a requesting a modification to that standard. Furthermore, the amount of reserved open space has increased from 33% to 35.5%, bringing it closer to the unmodified Code standard. Ms. Kafka argues that granting the modification and allowing a reduced percentage of reserved open space is inconsistent with the general purpose of the residential cluster development and would be detrimental to the public good, but the only basis she offers concerns the adequacy of the buffer between this project and her farm property to the west. As City Staff noted in their report, there are no particular features of the Property that would specifically justify or be protected by additional open space and the best allocation open space is providing buffers to the adjacent properties. The Application as it has been revised has added open space at the northwest corner of the Property and situated so as to provide precisely the additional buffering that Ms. Kafka has sought – at a cost to the project of four developable lots. Thus, the Application has fully addressed the concerns that were raised while still satisfying the requisite criteria for approval as discussed below. II. Project Development Plan Approval Criteria The purpose of a project development plan is to provide the City with “a general description of the uses of land, the layout of landscaping, circulation, architectural elevations and buildings, and it shall include the project development plan and plat.” Code, § 2.1.3(C)(1). The Code provides that “[a] project development plan shall comply with all General Development Standards applicable to the development proposal (Article 3) and the applicable District Standards (Article 4).” Code, § 2.4.2(H). This Application meets all criteria for approval because it contains a detailed description of the uses of the land, and plans showing the layout of all applicable site designs, and it includes a plan and a plat showing compliance with the applicable provisions of Article 3 and Article 4. The Code provides certain specifications for the landscaping of a proposed development and requires that developments provide a landscape and tree protection plan. Code § 3.2.1(C). In compliance with the Code, the Application contains a comprehensive plan set labeled “Site and Landscape Plans” (the “Site Plan”) complete with detailed drawings showing the location of all trees, landscaping areas, and providing a specific list and description of the types and locations of the plants and other decorative landscape features. The Site Plan calls for a network of tree and grass lined streets, substantial natural buffer areas at the perimeter of the Property, and provides a list of the existing trees to be preserved Packet pg. 4 Planning and Zoning March 19, 2024 Page 5 and the methods for such preservation. As explained by the project’s designer, Kristin Turner of the TB Group, the tree, shrub and plant selections were specifically chosen with an eye to respecting and creating compatibility with the rural farm character of the adjacent property. Article 3 of the Code also provides specifications for the required access, circulation and parking system that an application must show. See Code, § 3.2.2. The Site Plan includes a diagram of the proposed network of streets, new sidewalks along Willox Lane, and the additional trails connecting Soft Gold Park to Willox Lane. The proposed Site Plan also restricts any exterior lighting elements within the development to those that “comply with the foot-candle requirements in Section 3.2.4 of the Land Use Code” and requires the use of “a concealed, fully shielded light source with sharp cut-off capability so as to minimize up-light, glare and unnecessary diffusion.” See Code, § 3.2.4. Just as the Code requires, the Application contains a Willox Farm Subdivision plat (the “Plat”). The Plat provides for the dedication of public rights-of-way, drainage easements and utility easements, and creates residential lots compliant with the pertinent size requirements of the Code. See Code, § 3.3.1. The Application also includes the Preliminary Development Plans for Willox Farm (the “Plan”), showing the location of utility lines and infrastructure, including the existing and proposed water pipes, sewer and sanitation pipes, fire hydrants, drainage culverts and storm drains, and reserved utility easements throughout the development area. And the Plan provides diagrams of street cross sections, proposed grades, descriptions and specifications for pedestrian and bicycle traffic, and the addition to the City’s trail network. See Code, §§ 3.3.5 & 3.7.3. The Plan and Plat also show the network of streets, establishing the transportation system for vehicular and non-vehicular traffic, and allocating the responsibility of maintaining the streets, alleys, and easements. Code, § 3.6. The Application includes a traffic impact study showing the current and anticipated transportation demand, and providing strategies for preventing negative traffic impacts from the development. See Code, § 3.6.4. The Application provides open space and landscaping buffering along the edges of the Property where the development would be adjacent to the neighboring parcels, providing appropriate transitions between the different visual character of the adjacent land uses and enhancing the apparent separation between uses. See Code, § 3.51(H). The proposed development is consistent with the purpose of the Urban Estate zoning district, providing a transitional area between more intense urban development to the east and the more rural and open land to the west. Code, § 4.2(A). And with the existing and requested modification of standards, the project will comply with all applicable density and open space requirements of a residential cluster development as provided for in the Urban Estate District. See Code, § 4.2(D)-(E). Packet pg. 5 Planning and Zoning March 19, 2024 Page 6 III. Conclusion We would like to also emphasize that some of the significant changes made to the Application were made at the cost of four potential residential lots, which inevitably affects the project’s financial viability. In the standalone modification of standards that was approved in 2021, our proposed development was authorized to build up to 76 dwelling units on the Property. Since then, the Applicant has reduced the proposed level of density in the project several times in response to the feedback received and in order to design a development that will work with this unique parcel and fit harmoniously with the neighborhood, while providing substantial improvements to the City’s Soft Gold Park and surrounding trail system. The Applicant team is pleased that we have been able to arrive at a proposal for this development that achieves all of these important goals. Accordingly, we ask that you approve the Project Development Plan with the requested modification of standards. Sincerely, Carolynne C. White Packet pg. 6 March 12, 2024 I regret not being able to attend the March 18, 2024, Planning and Zoning Commission hearing due to international travel. As such, I am taking the opportunity to offer my written views on the current version of the Land Use Code. First, I appreciate all the work that has been done by City staff to better align our Land Use Code with the City’s needs. It is especially important at this juncture in the City’s history: Only a very limited amount of residential land remains undeveloped. And much of that land will be challenging to develop due to water availability or other issues. Second, I recognize that the version of the Land Use Code under consideration is materially changed and reduced from previous versions adopted by City Council and then repealed. One impact of the revisions will be a reduction in housing options in our community at a time when prices and interest rates have made housing difficult for many citizens to attain. I would have preferred a more inclusive approach. While having stated these concerns, I strongly believe we need to make any progress we can. And for that reason, I support the current version of the Code. In particular, I note that: • The revised code is easier to use and is more predictable in its usage. This benefits all citizens of the community. • The revised code supports affordable housing through incentives that makes development less expensive and, therefore, more feasible. Importantly, the changes serve to align our Code with the State Proposition 123 requirements, It is critical that our community maintains the ability to access these funds. I appreciate the opportunity to submit these comments. Packet pg. 7