HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/03/2022 - SECOND READING OF ORDINANCE NO. 048, 2022, AUTHORI Agenda Item 7
Item # 7 Page 1
AGENDA ITEM SUMMARY May 3, 2022
Natural Areas
STAFF
Alynn Karnes, Land Conservation Specialist
Tawnya Ernst, Sr. Real Estate Specialist
Ingrid Decker, Legal
SUBJECT
Second Reading of Ordinance No. 048, 2022, Authorizing the First Amendment to the Second Amended and
Restated Conservation Easement on the Williams Property.
EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading on April 19, 2022, authorizes the execution of an
amendment to the Williams (formerly Hazelhurst) Conservation Easement. The amendment will correct an
error in the stated residential building square footage, clarify language outlining structure parameters, correct
the reference to mineral rights ownership, enhance mineral extraction restrictio ns, and prohibit sodbusting.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, April 19, 2022 (w/o attachments) (PDF)
2. Ordinance No. 048, 2022 (PDF)
Agenda Item 15
Item # 15 Page 1
AGENDA ITEM SUMMARY April 19, 2022
Natural Areas
STAFF
Alynn Karnes, Land Conservation Specialist
Tawnya Ernst, Sr. Real Estate Specialist
Ingrid Decker, Legal
SUBJECT
First Reading of Ordinance No. 048, 2022, Authorizing the First Amendment to the Second Amended and
Restated Conservation Easement on the Williams Property.
EXECUTIVE SUMMARY
The purpose of this item is to authorize the execution of an amendment to the Williams (formerly Hazelhurst)
Conservation Easement. The amendment will correct an error in the stated residential building square footage,
clarify language outlining structure parameters, correct the reference to mineral rights ownership, enhance
mineral extraction restrictions, and prohibit sodbusting.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
The original 45-acre Hazelhurst Conservation Easement (Hazelhurst CE) was granted to the City on October 31,
2005. The Hazelhurst property was conserved to help provide a buffer to the adjacent Coyote Ridge Natural Area
and to protect the viewshed along Taft Hill Road and within the Loveland Community Separator area. The property’s
grasslands support a variety of bird and wildlife species.
On September 19, 2019, Council approved an amendment to subdivide the Hazelhurst CE into two parcels: a 40-
acre parcel that was subsequently purchased in fee by the Natural Areas Department and a 5-acre parcel that
encompassed the Hazelhurst home. Following purchase by the City, the existing conservation easement on the 40-
acre parcel was transferred to Larimer County Open Lands and the conservation easement on the 5-acre homestead
parcel is still held by the City.
The Hazelhurst family sold the property to the Williams family in December 2021. In reviewing the conservation
easement with the Williamses, an error was discovered in the recording of the square foot footprint of the single-
family residence on the property, which must be amended to reflect the proper dimensions. Staff is taking this
opportunity to strengthen the conservation easement in four ways:
1.Clarify language outlining the size limitations for buildings on the property to alleviate future misinterpretation.
2.Correct mineral rights ownership mischaracterized in the previous amendment.
3.Detail requirements landowners must take before considering third party access to explore or extract minerals.
4.Enhance conservation protection by prohibiting sodbusting, the act of removing native vegetation to establish
croplands.
ATTACHMENT 1
COPY
Agenda Item 15
Item # 15 Page 2
CITY FINANCIAL IMPACTS
Financial impacts are less than $2,000, only staff time and Larimer County recording fees are incurred.
BOARD / COMMISSION RECOMMENDATION
At its February 9, 2022, meeting, the Land Conservation and Stewardship Board recommended that Council
adopt this item.
ATTACHMENTS
1. Location Map (PDF)
2. Land Conservation and Stewardship Board Minutes (PDF) COPY
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ORDINANCE NO. 048, 2022
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE FIRST AMENDMENT TO THE SECOND AMENDED AND
RESTATED CONSERVATION EASEMENT ON THE WILLIAMS PROPERTY
WHEREAS, in 2005 Glenn and Margaret Hazelhurst (“Hazelhursts”) conveyed to the City
a conservation easement (the “CE”) on a 45-acre parcel of land they owned southwest of the
intersection of Taft Hill Road and Trilby Road (the “Property”); and
WHEREAS, in 2019 the Hazelhursts wanted to sell, and the City’s Natural Areas
Department wished to purchase, 40 acres of the Property (“Parcel B”) with the Hazelhursts
retaining five acres of the Property that had their home on it (“Parcel A”) and an access easement
across Parcel B; and
WHEREAS, at the time, the CE did not allow subdivision of the Property, and in 2019but
the City Council approved Ordinance No. 098, 2019 (the “2019 Ordinance”), authorizing
execution of a First Amended and Restated Conservation Easement between the City and the
Hazelhursts (the “FACE”) that would permit subdivision of the Property into Parcel A and Parcel
B; and
WHEREAS, so that the City would not end up owning both the land and conservation
easement on Parcel B, the 2019 Ordinance also authorized the City, after it purchased Parcel B, to
assign the conservation easement on Parcel B to Larimer County, which has a long history of
partnering with the City on land conservation, and the City would continue to hold the conservation
easement on Parcel A; and
WHEREAS, because the uses on Parcel A and Parcel B would be different once the City
owned Parcel B, and the conservation easement on each Parcel would be managed by different
entities, the City, County and Hazelhurst proposed that after the City purchased Parcel B the FACE
be further revised to split it into two separate agreements, the Second Amended and Restated
Conservation Easements (“SACEs”), one for each Parcel, each tailored to the uses of that Parcel,
and the 2019 Ordinance also authorized the SACEs; and
WHEREAS, the City and Hazelhursts executed the First Amended Easement, the City
purchased Parcel B, the Second Amended Easements were signed, and the City assigned the
Second Amended Easement on Parcel B to the County, in 2019; and
WHEREAS, the Hazelhursts sold Parcel A to the Williams family in 2021, and in
reviewing the Parcel A Second Amended Easement (still held by the City) with the Williamses,
City staff discovered an error in the size limitations the conservation easement places on the single-
family home on the property, which the parties would like to correct; and
WHEREAS, the City and the Williamses have negotiated a draft amendment to the Parcel
A SACE that would also do the following:
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Correct the description of mineral rights ownership on Parcel A;
Detail requirements the landowners must meet before allowing third party access to Parcel
A to explore for or extract minerals; and
Enhance conservation protection by prohibiting sodbusting, the act of removing native
vegetation to establish croplands; and
WHEREAS a draft of the proposed First Amendment to the Second Amended and Restated
Conservation Easement is attached hereto as Exhibit “A” and incorporated herein by reference (the
“First Amendment “); and
WHEREAS, because the City Council approved the CE and the First and Second Amended
and Restated Conservation Easements, the proposed First Amendment also requires City Council
approval by ordinance and
WHEREAS, at its regular meeting on February 9, 2022, the Land Conservation and
Stewardship Board recommended that the City Council approve the First Amendment.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Council hereby finds that the proposed amendments to the
Second Amended and Restated Conservation Easement on Parcel A as provided herein are in the
best interests of the City.
Section 3. That the Mayor is hereby authorized to execute the First Amendment in
substantially the form attached as Exhibit “A”, together with such additional terms and conditions
as the City Manager, in consultation with the City Attorney, determines are necessary or
appropriate to protect the interests of the City.
Introduced, considered favorably on first reading, and ordered published this 19th day of
April, A.D. 2022 and to be presented for final passage on the 3rd day of May, A.D. 2022.
____________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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Passed and adopted on final reading on this 3rd day of May, A.D. 2022.
____________________________________
Mayor
ATTEST:
_____________________________
City Clerk
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED DEED OF
CONSERVATION EASEMENT
HAZELHURST PROPERTY – 5-ACRE PARCEL
THIS FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED DEED
OF CONSERVATION EASEMENT (the “First Amendment” or “Deed”) is entered into as of
____________________, 2022 by ROBERT WILLIAMS and COURTNEY WILLIAMS
having an address of 2887 West Trilby Road, Fort Collins, CO 80526 (“Grantor”), and THE
CITY OF FORT COLLINS, COLORADO, a municipal corporation, having its address at 300
Laporte Avenue., P.O. Box 580, Fort Collins, CO 80522 (“Grantee”).
1.Grantors and Grantee are parties to that Deed of Conservation Easement recorded on
October 31, 2005 at Reception No. 20050092426 in the records of the Larimer County, Colorado
Clerk and Recorder, as amended by a First Amended and Restated Deed of Conservation
Easement dated September 11, 2019 and recorded on September 11, 2019 at Reception No.
20190054677 in the records of the Larimer County, Colorado Clerk and Recorder (the “First
Amended Conservation Easement) and as amended by a Second Amended and Restated Deed of
Conservation Easement dated September 19, 2019 and recorded on September 20, 2019 at
Reception No. 20190057272 in the records of the Larimer County, Colorado Clerk and
Recorded (the “Conservation Easement”).
The parties wish to amend two parts of Section 4., Reserved Rights, of the Conservation
Easement: Section 4. f (1), Improvements, to correct an error and clarify language related to
square footages, and Section 4.c. (2), Agriculture, to update language regarding agricultural uses.
The parties also want to amend Section 5.e. to correct language regarding mineral rights and
their extraction.
2.The parties therefore agree that Section 4 c. (2) Agriculture, Section 4. f. (1)
Improvements and Section 5.e. are hereby deleted and replaced with the following language:
4.Reserved Rights.
…
c.Resource Management
…
(2)Agriculture. Grantor reserves the right to use the Property for grazing
livestock. Grantor shall conduct all agricultural activities using stewardship and management
methods that preserve the natural resources upon which agriculture is based. Long-term
stewardship and management goals include preserving soil productivity, maintaining natural
stream channels, preventing soil erosion, minimizing invasive species, avoiding unsustainable
livestock grazing practices, and minimizing loss of vegetative cover. Sodbusting or removal of
native vegetation for purposes of establishing croplands is expressly prohibited.
…
EXHIBIT A
f. Improvements.
(1) Residential and Non-Residential Improvements. The Property currently
contains one residential structure consisting of approximately two thousand two hundred and
eighty (2,280) square feet per the Larimer County Assessor records. Grantor may maintain,
repair, replace, or reasonably enlarge this residential structure to a size that does not exceed a
three thousand (3,000) square-foot footprint in total. Any other improvements existing on the
Property as of the Effective Date are also permitted, and Grantor may maintain, repair, replace
and reasonably enlarge such improvements in their current locations without Grantee’s
approval. Typical residential landscaping, which may be non-native but shall not be invasive
species, is permitted within 100 feet of actual buildings and native trees, shrubs, grasses, and
wildflowers may be planted outside the 100-foot limit area. Grantor reserves the right to
construct or place Residential Improvements and Non-Residential Improvements, defined below,
and Grantor shall provide prior notice of such construction to Grantee in accordance
with Section 7 of this Deed. Once constructed, Grantor may maintain, repair, replace and
reasonably enlarge such new improvements in their initially constructed locations without
Grantee’s approval. Any new Non-Residential Improvement requiring a building permit or
exceeding 800 square feet in total floor area and not expressly provided for in the Land
Management Plan described in Section 6 below shall require prior written approval by the
Grantee, in its reasonable discretion. “Residential Improvements” shall mean covered
improvements containing habitable space intended for full- or part-time human habitation,
including but not limited to homes, cabins, guest houses, tiny homes, mobile homes, yurts,
tepees, and any space attached to any such improvement such as a garage or covered
porch. “Non-Residential Improvements” shall mean all other covered or uncovered agricultural
and non-residential improvements that are not intended for human habitation, including but not
limited to barns, hay storage areas, machine shops, sheds, free-standing garages, well houses,
outhouses, gazebos, picnic areas, sport courts, pools, outdoor kitchens, parking areas, and indoor
and outdoor riding arenas, fences (subject to the terms of Section 4.f of this Deed), corrals,
hayracks, cisterns, stock tanks, stock ponds, troughs, fenced hay stacks, livestock feeding
stations, hunting blinds, wildlife viewing platforms, sprinklers, water lines, water wells, ditches,
information kiosks, trail markers and trash receptacles. The Property currently contains one
outbuilding consisting of approximately one thousand two hundred (1,200) square feet. and
another building consisting of approximately three hundred (300) square feet.
Grantor may construct, place, replace or enlarge Residential and Non-Residential
Improvements on the Property subject to the following limitations:
i. One single family residence not to exceed a three thousand (3,000) square-
foot footprint.
ii. Maximum combined building footprint square footage for all residential and
enclosed non-residential improvements shall not exceed five thousand
(5,000) square feet.
…
EXHIBIT A
5. Prohibited and Restricted Uses.
…
e. Mineral Extraction. As of the Effective Date, Grantor does not own any of the
coal, oil, gas, hydrocarbons and other minerals of any kind or description (the “Minerals”)
located on, under, or in the Property or otherwise associated with the Property. This Deed
expressly prohibits the mining or extraction of Minerals using any surface mining method.
Notwithstanding the foregoing, Grantor and Grantee may permit mineral extraction utilizing
methods other than surface mining if the method of extraction has a limited, localized impact on
the Property that is not irremediably destructive of the Conservation Values. However, Grantor
and Grantee agree that the following provisions shall apply to any such proposed mineral
extraction by Grantor or any third party, as applicable:
(1) Soil, Sand, Gravel and Rock. Grantor may extract soil, sand, gravel or
rock without further permission from Grantee so long as such extraction: (i) is solely for use on
the Property for non-commercial purposes; (ii) is in conjunction with activities permitted in this
Deed, such as graveling roads and creating stock ponds; (iii) is accomplished in a manner
consistent with the preservation and protection of the Conservation Values; (iv) does not result in
more than one half-acre of the Property being disturbed by extraction at one time, and uses
methods of mining that may have a limited and localized impact on the Property but are not
irremediably destructive of the Conservation Values; and (v) is reclaimed within a reasonable
time by refilling or some other reasonable reclamation method for all areas disturbed. This
provision shall be interpreted in a manner consistent with I.R.C. § 170(h), as amended, and the
Treasury Regulations adopted pursuant thereto.
(2) Oil and Gas. Grantor is prohibited from conducting or permitting oil and
gas exploration and extraction on the Property except to the extent Grantor is legally obligated to
do so because of the rights of third-party mineral owners as of the Effective Date and at the time
of such proposed mining or removal.
(3) Third-Party Mineral Extraction. If a third party owns all, or controls some,
of the Minerals, and proposes to extract Minerals from the Property, Grantor shall immediately
notify Grantee in writing of any proposal or contact from a third party to explore for or develop
the Minerals on the Property. Grantor must consult with the Grantee on negotiation of any
surface use agreement or other agreement between the Grantor and any owner or lessee of right
to the Minerals, primarily so that the Grantee may help ensure that none of the Property’s
Conservation Values are substantially diminished, materially impaired, or adversely impacted by
the operations, but also so that the Grantee may share in payments to be made by the lessee for
its operations on the Property, since any operations by the lessee will impair the Property’s
Conservation Values that are protected by this Easement, regardless of whether any such
payments are due and payable by the lessee pursuant to an agreement or pursuant to an award of
damages resulting from the lessee’s use of the Property. The Grantee’s share of such payments
shall be as defined in Section 16 below. Grantor shall not enter into any lease, surface use
agreement, no-surface occupancy agreement, or any other instrument related to Minerals
associated with the Property (each, a “Mineral Document”), with a third party subsequent to the
Effective Date without providing a copy of the same to Grantee prior to its execution by Grantor
for Grantee’s review and approval. Any Mineral Document shall require that Grantor provide
EXHIBIT A
notice to Grantee whenever notice is given to Grantor, require the consent of Grantee for any
activity not specifically authorized by the instrument, and give Grantee the right, but not the
obligation, to object, appeal and intervene in any action in which Grantor has such rights. Any
Mineral Document must either (i) prohibit any access to the surface of the Property or (ii) must
(a) limit the area(s) of disturbance to a specified area(s); (b) include provisions that ensure that
the proposed activities have a limited, localized impact on the Property that is not irremediably
destructive of the Conservation Values; and (c) contain a full description of the activities
proposed, a description of the extent of disturbance, the location of facilities, equipment,
roadways, pipelines and any other infrastructure, the proposed operation restrictions to minimize
impacts on the Conservation Values, reclamation measures including and in addition to those
required by law, and remedies for damages to the Conservation Values. Any Mineral Document
that only permits subsurface access to Minerals but prohibits any access to the surface of the
Property shall also prohibit any disturbance to the subjacent and lateral support of the Property,
and shall not allow any use that would materially adversely affect the Conservation Values.
(4) This Section 5.e shall be interpreted in a manner consistent with I.R.C. §
170(h) and the Treasury Regulations adopted pursuant thereto.
3. The Conservation Easement remains in full force and effect except as modified by this
First Amendment.
GRANTOR:
By:___________________________________________
Robert Williams
By:_____________________________________________
Courtney Williams
STATE OF COLORADO )
) ss
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this day of ____________,
2022, by Robert Williams and Courtney Williams.
Witness my hand and official seal.
My Commission expires:
_______________________________
Notary Public
EXHIBIT A
GRANTEE:
CITY OF FORT COLLINS
a Colorado municipal corporation
By:___________________________
Jeni Arndt, Mayor
ATTEST:
________________________
City Clerk
________________________
Printed Name
Approved as to Form:
_______________________
Senior Assistant City Attorney
________________________
Printed Name
STATE OF COLORADO
) ss.
COUNTY OF LARIMER
The foregoing instrument was acknowledged before me this _____ day of __________,
2022, by Jeni Arndt as Mayor of the City of Fort Collins.
Witness my hand and official seal
My commission expires:
____________________________________
Notary Public
EXHIBIT A