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Home My WebLink AboutCOUNCIL - AGENDA ITEM - 03/06/2001 - CONSIDERATION OF THE APPEAL OF THE JANUARY 18, 200 AGENDA ITEM SUMMARY ITEM NUMBER: 39 ID FORT COLLINS CITY COUNCIL DATE: March 6,2001 FROM: Stephen Olt SUBJECT: Consideration of the Appeal of the January 18, 2001, Decision of the Planning and Zoning Board to Approve the Provincetowne PUD, Filing Two - Final RECOMMENDATION: Council should consider the appeal based upon the record and relevant provisions of the Code and Charter, and after consideration,either: (1)remand the matter to the Planning and Zoning Board or (2) uphold, overturn, or modify the Board's decision. EXECUTIVE SUMMARY: On January 18,2001,the Planning and Zoning Board approved the Provincetowne PUD,Filing Two - Final for 331 residential dwelling units (190 single family lots and 141 multi-family townhomes) on 70.00 acres. The property is zoned LMN - Low Density Mixed Use Neighborhood (as of the effective date of March 28, 1997 for the new Land Use Code). The property is located on the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue,east of South College Avenue, and north of County Road 32. On January 30, 2001, an in sufficient Notice of Appeal was received by the City Clerk's office regarding the decision of the Planning and Zoning Board. An Amended Notice of Appeal was received by the City Clerk's office on February 20,2001.In the Amended Notice of Appeal from the Appellants David G. Evans, Doug Sparks, and Mark Menke, it is alleged that: [Note that the following numbers used in this AIS correspond to the numbering used in the Appellants'Amended Notice of Appeal] Pursuant to Section 2-48(b)(2)a, the Planning and Zoning Board exceeded its authority or jurisdiction, in that the Planning and Zoning Board was prohibited from approving the final plan submitted by Applicant as no legal documents were submitted to nor approved by the City as required in Section 29-526J(4) of the Land Development Guidance System for Planned Unit Developments [also known as the LDGS]. Pursuant to Section 2-48(b)(1),the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the Code, in that the Planning and Zoning Board was prohibited from approving the final plan submitted by Applicant, as Applicant's mere verbal representation that Applicant would execute,at some unspecified date in the future a legal document and/or documents not yet agreed to, was insufficient to satisfy the submission and approval of legal documents requirement of Section 29-526J(4)of the LDGS. Pursuant to Section 29-526J(4)of the LDGS,such DATE: March 6, 2001 1 2 ITEM NUMBER: 39 physical existence,execution and approval by the City of such final legal documents were conditions precedent to the approval of the final plan by the Planning and Zoning Board. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that the Planning and Zoning Board was prohibited from approving the final plan submitted by Applicant as no legal instruments were submitted to nor approved by the City as required in Section 29-526J and Section 29-526J(1) of the LDGS. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that the notice of the Planning and Zoning Board dated November 16, 2000, for the hearing of December 7, 2000, and the notice of the Planning and Zoning Board dated January 4, 2001,for the hearing of January 18,2001,were insufficient to confer jurisdiction upon the Planning and Zoning Board. Pursuant to Section 2-48(b)(2)(c), the Planning and Zoning Board considered evidence relevant to its findings which was substantially false or grossly misleading. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code,in that Applicant failed to sustain the burden of proof in seeking the variance to Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion `Y' of the LDGS as Applicant presented no evidence that the variance would result in substantial benefit to the City and that the strict application of Section 29-526C(3)(c),Density Chart H,Base Criterion"k" and Bonus Criterion "r" would render the project practically unfeasible. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that there was a substantial deviation from the approved preliminary plans. Also, the Appellants are citing Jurisdictional Objections to Approval. [Note that the following allegations were setforth in the Amended Notice of Appeal dated September 3, 1999,from Appellants David Evans, Doug Sparks, and Mark Menke, regarding the August 5, 1999, determination of the Planning and Zoning Board to approve the Provincetowne PUD, Filing Two—Preliminary. This item was heard by City Council on October 5, 1999. City Council voted to uphold the decision of the Planning and Zoning Board] * No hearing jurisdiction conferred on Planning and Zoning Board, in that, execution by the City Manager of the Agreement of Purchase and Sale of Real Property(hereinafter"Purchase Agreement")by and between the City of Fort Collins and Pridemark Development Company, LLC,dated April 2, 1996,was specifically reserved by Section 4 of Ordinance No.41, 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-111(a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. DATE: March 6, 2001 3 ITEM NUMBER: 39 * No hearing jurisdiction conferred on Planning and Zoning Board, in that, execution by the City Manager, on or about April 12, 1995, of an agreement on behalf of the City of Fort Collins entitled "First Addendum to Agreement of Purchase and Sale of Property" (hereinafter "First Addendum") by and between the City of Fort Collins and Pridemark Development Company, LLC,adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a matter of law, modify an executory agreement. * No hearing jurisdiction conferred on Planning and Zoning Board, in that,delegation to City Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996,was an improper delegation of legislative discretion which violated the requirements of Section 23-111(a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. * No hearing jurisdiction conferred on Planning and Zoning Board, in that, delegation to the City Manager of the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First Addendum to Agreement of Purchase and Sale of Real Property, was an improper delegation of legislative discretion which violated the requirements of Section 23-111(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. * No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29- 526 — LDGS and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development -Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. * No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. —LDGS and Ordinance No. 161, 1996. * No hearing jurisdiction conferred on Planning and Zoning Board, in that, Applicant nor its predecessor in interest,as a matter of law and pursuant to filing requirements of Section 29- 526 — LDGS and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development -Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. * No hearing jurisdiction conferred on Planning and Zoning Board, in that, the Planning and Zoning Board failed to give timely notice of August 5, 1999, hearing. DATE: March 6, 2001 4 ITEM NUMBER: 39 * No hearing jurisdiction conferred on Planning and Zoning Board, in that, the notice of the Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the Planning and Zoning Board. * Planning and Zoning Board failed to make required findings,in that,Section 29-526K of the LDGS requires, "The decision of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board". * Applicant failed to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar Orientation Ordinance,in that,Applicant presented no evidence which would demonstrate that the granting of the variance would neither be detrimental to the public good nor impair the intent and purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties with regard to solar orientation or access,and that undue hardship would be caused to the Applicant by the strict application of the provisions of Section 29-526(2)A-1/A-1.1. * The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999,and filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council of the approval by the Planning and Zoning Board of August 5, 1999,to approve the Planned Unit Development—Preliminary Plan commonly referred to as Provincetowne PUD, Filing Two — Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance is incorporated herein by this reference as though seta forth in full. C The attached documents include: * the Amended Notice of Appeal (dated and received February 20, 2001) * Original Notice of Appeal (dated and received January 30, 2001) ,1 * Staff Report,with recommendation,to the Planning and Zoning Board for its January 18, 2001 public hearing * Handouts pertaining to the Provincetowne PUD, Filing Two -,Final development proposal that were presented to the Planning and Zoning Board at the January 18, 2001 public hearing * the City Staff response to the amended appeal * Minutes of the meeting before the Planning and Zoning Board, held Thursday, January 18, 2001 * the Notice of Appeal (dated and received September 3, 1999) and incorporated by reference into the current appeal The procedures for deciding the appeals are described in Chapter 2,Article 11,Division 3 of the City Code. City Clerk City of Fort Collins NOTICE The City Council of the City of Fort Collins, Colorado,on Tuesday, March 6, 2001 at 6:00 p.m. or as soon thereafter as the matter may come on for hearing in the Council Chambers in City Hall at 300 LaPorte Avenue, will hold a public hearing on the attached appeal from the decision of the Planning and Zoning Board made on January 30, 2001 regarding the Provincetowne Second Filing PUD(#73-82U and#73-82K),filed by David G.Evans. You may have received previous notice on this item in connection with hearings held by the Planning and Zoning Board. If you wish to comment on this matter, you are strongly urged to attend the hearing on this appeal. If you have any questions or require further information please feel free to contact the City Clerk's Office (221-6515) or the Planning Department (221-6750). Section 2-56 of the Code of the City of Fort Collins provides that a member of City Council may identify in writing any additional issues related to the appeal by February 27, 2001. Agenda materials provided to the City Council, including City staff's response to the Notice of Appeal,and . any additional issues identified by City Councilmembers,will be available to the public on Thursday, March 1, after 10:00 a.m. in the City Clerk's Office. The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call the City Clerk's Office (221-6515) for assistance. Wanda M. Krajice c City Clerk Date Notice Mailed: February 23, 2001 cc: City Attorney Planning Department Planning and Zoning Board Chair Appellant/Applicant 300 LaPorte Avenue • P.O.Box 580 • Fort Collins,CO 80522-0580 • (970)221-6515 • FAX(970)221-6295 • February 20,2001 koMs. Wanda M. Krajicek City Clerk City of Fort Collins 300 LaPorte AvenueFort Collins, Colorado 80522 NOTICE OF APPEAL (Amended) TO THE HONORABLE CITY COUNCIL: NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 2-48 of the Code of the City of Fort Collins the undersigned parties-in-interest (hereinafter "Appellants") appeal the decision of the Planning and Zoning Board of January 18, 2001, to approve the Planned Unit Development—Final Plan, commonly referred to as Provincetowne PUD, Wding Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion `Y' of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. Parties-In-Interest The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to Section 2-46(3), (4)and(5)of the Code of the City of Fort Collins. The parties-in-interest are identified for the purposes of this Appeal as follows: David G. Evans Doug Sparks Mark Menke 6806 Deerhurst Court 900 Deerhurst Circle 901 Deerhurst Circle Fort Collins,CO 80525 Fort Collins, CO 80525 Fort Collins,CO 80525 (970)223-7957 (970)223-9863 (970) 204-1027 Pursuant to the requirements of Section 2-49(5) of the Code of the City of Fort Collins, all mailing of notices subject to that Section by the City shall be sent to: David G. Evans 6806 Deerhurst Court Fort Collins, CO 80525 (970)223-7957/F (970)493-3820 • Notice of Appeal -Amended Planning and Zoning Board Decivion Provincetowne PUD, Filing Two-Final, 473-82U February 20. 2001 Page 2 Grounds Of Appeal The following grounds of appeal set forth allegations of error in accordance with the provisions of Section 2-48 (b) (1) and Sections 2-48(b)(2)a-d. of the Code of the City of Fort Collins. 1. Pursuant to Section 2-48(b)(2)a, the Planning and Zoning Board exceeded its authority orjurisdiction, in that, the Planning and Zoning Board was prohibited from approving the final plan submitted by Applicant as no legal documents were submitted to nor approved by the City as required in Section 29-526J(4) of the Land Development Guidance System For Planned Unit Developments. On March 27, 1997. an Application was filed with the Current Planning Department requesting Planned Unit Development - Preliminary Pian approval and approval for a Preliminary Subdivision Plat. The Application contained a request for earned credit for a project containing "Affordable Dwelling Units" pursuant to Sections 29-526C(3)(c), Density Chart H. Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned t_nit Developments of the City of Fort Collins. Section 29-526J(4)(a) provides, "To qualify for a residential density bonus, a project which includes dwelling units for low-income families shall be accompanied by covenant documents or other adequate documents to be recorded with the Office of the County Clerk, guaranteeing the use of those dwellings units for low-income families. The documents shall not be accepted until approved by the City as to legal form and effect. providing that the use -estriction be for at least twenty-live(25)years." During the hearing before the Planning and Zoning Board on December 7, 2000, nor at the continued hearing of Januai) 18. 2001, did Applicant present any executed covenant documents or other executed documents to the City as required in Section 29-526J(4). In addition, Applicant did not submit any covenant documents or other adequate documents in a form which could be recorded in the Office of the County Clerk as required in Section 29-5204). Section 29-526J(4)(c)of the Land Development Guidance System For Planned Unit Development; provides that, "No final plan ,hall be approved for any portion of a planned unit development, approved with a residential density bonus for providing dwelling units for low-income families, until the necessary legal documents have begin submitted and approved." The Applicant did not meet the requirements of Section %9-526J(4) of [lie Land Development Guidance System For Planned Unit Developments, therefore, the Planning and Zoning Board was specificall prohibited from approving the final plan commonly referred to as Provincetowne PUD, Filing Two-Final, P73-82U (Provincetowne, 2"" Filing, Final (LDGS)— File t173-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned Unit Developments of the Citv of Fort Collins. 2. Pursuant to Section 2-48(b)(1). the Planning and Zoning Board failed to properly interpret and apply relevant provisions of tie Code, in that, the Planning and Zoning Board was prohibited from approving the final plan submitted by Applicant, as Applicant's mere verbal representation that Applicant would execute, at some unspecified date in the future a legal document and/or document; not yet agreed to. was insufficient to satisfy the submission and approval of legal documents requirement of Section 29-526J(4) of the Land Development Guidance System For Planned Unit Developments. Pursuant to Section 29-526J(4) of the Land Development Guidance System For Planned Unit Developments, such physical existence, execution and approval by the City of such final legal documents were conditions precedent to the approval of the final plan by the Planning and Zoning Board. Notice of.Appeal -Amendcd Planning and 1:onir a Board Decision Krovincetowne PUD, Filing Two-Final. 473-82U ebruary 20, 2001 Page 3 On March 27, 1997, an Application was filed with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat. The Application contained a request for earned credit for a project containing "Affordable Dwelling Units" pursuant to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. Section 29-526J(4)(a) provides, "To qualify for a residential density bonus, a project which includes dwelling units for low-income families shall be accompanied by covenant documents or other adequate documents to be recorded with the Office of the County Clerk, guaranteeing the use of those dwellings units for low-income families. The documents shall not be accepted until approved by the City as to legal form and effect, providing that the use restriction be for at least twenty-five (25)years." Section 29-526J(4)(c) of the Land Development Guidance System For Planned Unit Developments provides that. "No final plan shall be approved for any portion of a planned unit development, approved with a residential density bonus for providing dwelling units for low-income families, until the necessary legal documents have been submitted and approved." The Applicant did not meet the requirements of Section 29-526J(4) of the Land Development Guidance System For Planned Unit Developments, therefore, the Planning and Zoning Board was specifically prohibited from approving the final plan commonly referred to as Provincetowne PUD; Filing Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)-- File 973-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart FI. Base Criterion "k" and Bonus Criterion "r" of the [-and Development Guidance System for Planned Unit Developments of the City of Fort Collins. 3. Pursuant to Se Juns 2-48(b)(2)a and 2-48(.b)(1 ) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction ns and failed to properly interpret and apply relevant provisio of the Code, in that, the Planning and Zoning Board was prohibited from approving the final plan submitted by applicant as no legal instruments were submitted to nor approved by the City as required in Section 29-526J and Section 29-526J(I ) of the Land Development Guidance System For Planned Unii Developments, Section 29-526J(1) provides that, "The developer shall submit a legal instrument setting forth a plan providing for the permanent care and maintenance of open spaces, recreational areas and communally-owned facilities and parking lots. The same shall be submitted to the City Attorney and shall not be accepted until approved as to legal form and effect. If the common open space is deeded to a homeowners' association, the applicant shall file the proposed documents governing the association. . . ." A review of the file in this matter did not reveal the submission and/or approval of such described legal instruments nor the proposed documents governing the association as required in Section 29-526J(1). Section 29-;26) provides, "All developments shall meet the requirements herein set forth and no final plan shall be approved that does not meet these requirements." The Applicant dial not meet the requirements of Section 29-526J(1 ) of the Land Development Guidance System For Planned L`nit Developments. therefore, the Planning and Zoning Board was specifically prohibited from approving the lioal plan commonly referred to as Provincetowne PUD, Filing Two- Final, 473-82[-1 (Provincetowne. 2"0 Filing, Final (LDGS) -- File #73-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r' of the Land Deve!opntent G-ridanee System for Planned Unit Developments of the City of Fort Collins. Notice of Appeal -Amended Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Final, #73-82U February 20. 2001 Page 4 4. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that, the notice of the Planning and Zoning Board dated November 16, 2000, for the hearing of December 7, 2000, and the notice of the Planning and Zoning Board dated January 4, 2001. for the hearing of January 18, 2001, were insufficient to confer jurisdiction upon the Planning and Zoning Board. - The notice of hearing dated November 16, 2000. and the notice of hearing dated January 4, 2001, failed to set forth, with specificity, the nature ofthe project and requested approvals nor did it specifically set forth that the Applicant was seeking a variance to Sections 29-526C(3)(c), Density Chart H. Base Criterion "k" and Bonus Criterion ''r" of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. The Planning and "Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of January 18, 2001, to approve the Planned Unit Development -Final Plan, commonly referred to as Provincetowne PUD, Filing Two-Final, 973-82U (Provincetowne, 2id Filing, Final (LDGS)— File #73-82K) and to the granting of a variance to Sections 29-526C(3)(c). Density Chart H, Base Criterion "k" and Bonus Criterion "r"of the band Development Guidance System for Planned Unit Developments of the City o*Fon Collins, in that, the notices of the Planning a.,ul I.rnim, Board dated November 16, 21.100 and .lanuarp 4, ^001, for tile hearings of December 7, 2000, and January 18, _`t0 i, respectively, were insufficient as a matter of law to conferjuresdiction upon the Planning and Zoning Board. To confer jurisdicton on aft agency, a public notice must be clear, definite, explicit and not ambigtous. A potic is not clear unless its meaning can be apprehended without explanation. In addition.. the notice must set forth nil information reasonably necessary to provide adequate warning to all persons whose rights might be affected by the proposed.action. In order to accomplish this purpose, the notice, at a minimum, must give the date, time, and place of the hearing and apprise the public of the subject matter of the hearing and nature of the proposed action. The failure to specifically mention the variance request rendered the notice insufficient. Fedder y. McCurdy 768 P. 2d 711 (Colo. App. 1988): Hallmark Builders_ti_City of Gunnison 650 P. 2d 556; Sundance Hills Homeowners Association v. Board of County Commissioners, 534 P. 2d 1212: Reeennitter v. Fowler 290 P. 2d 223. Also, such failure to specifically notice the variance request of Applicant was a denial of the constitutional principle of procedural due process which requires notice and opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the hearing decision be vacated and that the matter be set for a hearing de novo. Fourteenth Amendment Constitution of the United States. 5. Pursuant to Section 2-48(b)(2)c, the Planning and Zoning Board considered evidence relevant to its findings which was substantially false or grossly misleading. At the hearing of January 18, 2001, Applicant requested that the Planning and Zoning Board grant a variance to the provisions of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r". Applicant requested that for the purposes of this project that the adjusted gross income for housing provision set forth in said Section be changed from 30% to 38%. In support of this request, Applicant's representative presented a document entitled, "KB Home of Colorado Inc.. Cost Analysis, Provincetowne Affordable Townhomcs." The document purported to demonstrate losses to be attributed to the development project if Applicant was not given a variance to the provisions of Section 29-526C(3)(c), Density Chart H. Base Criterion "k"and Bonus Criterion "r". Applicant was unable to Notice of Appeal - Ameuded Planning and Zoning Hoard Decision _Provincetowne PUD, Filing Iwo-Final, #73-82U ebruary 20, 2001 Page 5 substantiate the validity of the various assumptions set forth in said Cost Analysis nor the calculations derived therefrom. Applicant's testimony clearly indicated that the Cost Analysis was speculative in nature and was not the product of rigorous application of accepted financial analysis based on validated empirical data. The document entitled, "KB Home of Colorado Inc., Cost Analysis, Provincetowne Affordable Townhomes" was the only evidence presented by Applicant in support of the requested variance. In sole reliance on this document, the Planning and Zoning Board granted Applicant's request for a variance to Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion 'Y'. 6. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that, Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion `Y' of the Land Development Guidance System for Planned Unit Developments as Applicant presented no evidence that the variance would result in substantial benefit to the City and that strict application of Section 29-526C(3)(c). Density Chart H, Base Criterion "k" and Bonus Criterion "r" would render the project practically unfeasible. At the hearing of January 18, 2001, Applicant requested that the Planning and Zoning Board grant a variance to the provisions of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r". Applicant �equested that for the purpos;s of this project that the adjusted gross income for housing provision set forth in said Section be changed from 301/;, to =8'%0. In support of this request. Applicant's representative presented a document entitled. "KB (tome of Colorado Inc., Cost Analysis, Provincetowne Affordable I-ownixnnes." The document purported to demonstrate iossts to be attributed to the development project if Applicant was not given a variance to the provisions of Section 29-526C(3)(c). Density Chart H, Base Criterion `k" and Bonus Criterion "r". Applicant was unable to substantiate the validit,i ofthe various assumptions set forth in said Cost Analysis nor the calculations derived therefrom. Applicant's testimony clearly indicated that the Cost Analysis was clearly speculative in nature and was not the product of rigorous application of accepted financial analysis based on validated empirical data. In the alternative, if it is determined that Applicant's Cost Analysis has merit, the criteria for granting a variance is not met solely by a showing of greater economic benefit that Applicant would gain if the variance was granted. Baum v. CLityand Cgunty,of Denver, 147 Colo. 104. Pursuant to Section 29-526K of the Land Development Guidance System For Planned Unit Developments, the Planning and Zoning Board has authority to grant variances only in certain enumerated cases. The Planning and Zoning Board is limited by the provisions of Section 29-526K and any variance made without compliance with those provisions is beyond the authority of the Planning and Zoning Board, and void. Cross v. Bilett. 122 Colo. 278. The record of the proceedings clearly are devoid of any evidence that the variance would result in substantial benefit to the City and that strict application of Section 29-526C(3)(e), Density Chart H, Base Criterion "k" and Bonus Ceterion "r" would render the project practically unfeasible. The burden of proof is on the Applicant seeking a variance front a zoning ordinance. La Plata County C'om'rs v. B_d_of Adi,.768 P. 2d 1250 (Colo. App. 1988). It is Appellants contention that the .Applicant. Failed to sustain the burden of proof in seeking the variance. Notice of Appeal -Amended Planning and honing Board Dacision Provincctowne PUD, Filing'I wo-Final. #73-82U February 20. 2001 Page 6 6. Pursuant to Sections 2-48(b)(2)a and 2-48(b)(1) respectively, the Planning and Zoning Board exceeded its authority or jurisdiction and failed to properly interpret and apply relevant provisions of the Code, in that, there was a substantial deviation f om the approved preliminary plans. Section 29-526F(5)(b) provides that, "As a requirement of approval, the final plan shall be :n substantial compliance with the approved preliminary plan." Further. Section 29-526F(5)(b)(1) states that. "For preliminary planned unit dev,-Iopntents approved on or after March 13, 1981, `substantial compliance' shall mean that all conditions imposed by the Planting and Zoning Board upon its approval of the preliminary plans have been met and the final plan does not: . c. Contain changes which would normally cause the development to be disqualified under the applicable criteria of this chapter." It is Appellants contention that the granting of the variance to Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion Y' is a substantial deviation from the approved preliminary plan and constitutes a change which would disqualify the development under the applicable criteria set forth in.. the Land Development Guidance System For Planed 1_.Init Development" iu�isdictiuc;n(Ohjc�ticrr To_AEprtwal The follvwing are continuing objc:et:ons to the jurisdiction _If the Planning and Zonim_ Board ot'the City of Fe, Collins to rc mler a decision it,. this matter: *No I tearing Jurisdiction; Conferred On Planing and Zoning Board, in that, execution by the City Manager of the Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April ? 1996, was specifically reserved by Section 4 of Ordinance No. 41. 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-11 1(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duty enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager, on or about April 12. 1996. of an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a matter of law, modify an executory agreement. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative discretion which violated the requirements of Section 23-1 1 1 (a) of the Code of the City of Fart Collins which vests sole authority to sell real property upon the(_'ity Council pursuant to a duly enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City Manager of the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First Addendum "Fo Agreement Of Purchase And Sale Of Real Property, was an improper delegation of legislative discretion Notice of Appeal Amended Planning and Zoning Board Decision rovincetowne PUD, Filing Two-Final. #73-82U ebruary 20, 2001 Page 7 which violated the requirements of Section 23-1 1 I(a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor Ws predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997. of the Application with the Current Planning Department requesting Planned Unit development - Prel'iminari Plan apororal and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that.. th Planning and Zoning Board failed to give timely notice of August 5, 1999, hearing- *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that. the notice of the Planning and Zoning Board dated Julv i9. 1999. for the hearing of August 5, 1999, was insufficient to conferjurisdiction upon the Planning and Zoning Board. *Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of the Land Development (:guidance System For Planned Unit Developments requires. "The decision of the Planning and Zoning Board on and application for a variance shall be set forth in writing in the minutes of the meeting of the Board." *Applicant Failed To Sustain "The Burden Of Proof In Seeking The Variance To The City Of Fort Collins Solar Orientation Ordinance, in that. applicant presented no evidence which would demonstrate that the granting of the variance would neither be detrimental to the public good nor impair the intent and purposes of Section 29-526(2)A-I,A-i.l or that Applicant was entitled to the variance by reason of exceptional ce>>ditions or difficulties with regard to >olar orientation or access, and that undue hardship would be caused to Applicant by the strict application of the provisions of Section 29-526(2)A-VA-I.l. • Notice of Appeal - Amended Planning grid Zoning Board Decision Provincetowne PUD, Filing Two-Final, #73-82U February 20, 2001 Page 8 "The full test of the arguments set forth in the Notice of Appeal dated September 3, 1999, and filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council of the approval by the Planning and Zoning Board of August 5. 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filin;;"pwo-Preliminary. #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance is incorporated herein by this reference as though set forth in full. Official/Quasi-Judicial/Administrative Notice Appellants hereby request that the City Council take Official/Quasi-Judicial,'Administrative Notice of the Constitution of the Unitcd States, the Constitution of the State of Colorado, Colorado Revised Statutes, the Charter of the City of Fort Collins,-he Code of the City of Fort Collins,and the Ordinances of the City of Fort Collins. No waiver Appellants hereby subiniz the lixegoin• and reserve the right .o prescat further ar i;ument and materials at 11— bearing The Notice of Appeal oy appellants is net intenced to be construed as a sulnm,lion to or a waiver of am, ;urisdictii.nal or �.rch other legally cognizable procedural or substantive. def'eeT nccurring during the pre,c,sing of Ilro Application. for Planned Unit DeveloFnneia- Prelinairtarr Plan approval nor of any datennaiatiens andiot .actions taken b- the City of Fort(A)Hins prior to and suhseq::er t To the filing cf said Application. R- ect'u11y submit-'M. Respectfully n /Re ecttidly subr teal, Da d C3. Evans oupaiks;1 �durk nke I .. JAN 0 2xi • January 30, 2001 CITY CL"„C Ms. Wanda M. Krajicek City Clerk City of Fort Collins 300 LaPorte Avenue Fort Collins, Colorado 80522 NOTICE OF APPEAL TO THE HONORABLE CITY COUNCIL: NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 2-48 of the Code of the City of Fort Collins the undersigned parties-in-interest (hereinafter "Appellants") appeal the decision of the Planning and Zoning Board of January 18, 2001, to approve the Planned Unit Development—Final Plan, commonly referred to as Provincetowne PUD, Filing Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development ,,to System for Planned Unit Developments of the City of Fort Collins. Parties-In-Interest The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to Section 2-46(3), (4)and (5)of the Code of the City of Fort Collins. The parties-in-interest are identified for the purposes of this Appeal as follows: David G. Evans Doug Sparks 6806 Deerhurst Court 900 Deerhurst Circle Fort Collins, CO 80525 Fort Collins, CO 80525 (970)223-7957 (970)223-9863 Pursuant to the requirements of Section 2-49(5) of the Code of the City of Fort Collins, all mailing of notices subject to that Section by the City shall be sent to: David G. Evans 6806 Deerhurst Court Fort Collins, CO 80525 (970)223-7957/F(970)493-3820 Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD,Filing Two-Final,#73-82U January 30,2001 Page 2 Grounds Of Appeal The following grounds of appeal set forth allegations of error in accordance with the provisions of Section 2-48 (b) (1) and Sections 2-48(b)(2)a-d. of the Code of the City of Fort Collins. 1. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board were prohibited from approving the final plan submitted by Applicant as no legal documents were submitted to nor approved by the City as required in Section 29-526J(4) of the Land Development Guidance System For Planned Unit Developments. On March 27, 1997, an Application was filed with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat. The Application contained a request for earned credit for a project containing "Affordable Dwelling Units" pursuant to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. Section 29-526J(4)(a) provides, "To qualify for a residential density bonus, a project which includes dwelling units for low-income families shall be accompanied by covenant documents c other adequate documents to be recorded with the Office of the County Clerk, guaranteeing the use of those dwellings units for low-income families. The documents shall not be accepted until approved by the City as to legal form and effect, providing that the use restriction be for at least twenty-five(25)years." During the hearing before the Planning and Zoning Board on December 7, 2000, nor at the continued hearing of January 18, 2001, did Applicant present any executed covenant documents or other executed documents to the City as required in Section 29-526J(4). In addition, Applicant did not submit any covenant documents or other adequate documents in a form which could be recorded in the Office of the County Clerk as required in Section 29-526J(4). Section 29-526J(4)(c) of the Land Development Guidance System For Planned Unit Developments provides that, "No final plan shall be approved for any portion of a planned unit development, approved with a residential density bonus for providing dwelling units for low-income families,until the necessary legal documents have been submitted and approved." The Applicant did not meet the requirements of Section 29-526J(4) of the Land Development Guidance System For Planned Unit Developments, therefore, the Planning and Zoning Board was specifically prohibited from approving the final plan commonly referred to as Provincetowne PUD, Filing Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File#73-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. 2. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board were prohibited from approving the final plan submitted by applicant as no legal instruments were submitted to nor approved by the City as required in Section 29-526J and Section 29-526J(1) of the Land Development Guidance System For Planned Unit Developments. Notice of Appeal Planning and Zoning Board Decision rovincetowne PUD, Filing Two-Final, #73-82U anuary 30, 2001 Page 3 Section 29-526J(1) provides that, "The developer shall submit a legal instrument setting forth a plan providing for the permanent care and maintenance of open spaces, recreational areas and communally-owned facilities and parking lots. The same shall be submitted to the City Attorney and shall not be accepted until approved as to legal form and effect. If the common open space is deeded to a homeowners' association, the applicant shall file the proposed documents governing the association. . . ." A review of the file in this matter did not reveal the submission and/or approval of such described legal instruments nor the proposed documents governing the association as required in Section 29-526J(1). Section 29-526J provides, "All developments shall meet the requirements herein set forth and no final plan shall be approved that does not meet these requirements." The Applicant did not meet the requirements of Section 29-526J(l) of the Land Development Guidance System For Planned Unit Developments, therefore, the Planning and Zoning Board was specifically prohibited from approving the final plan commonly referred to as Provincetowne PUD, Filing Two- Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion"r" of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. 3. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning and Zoning Board dated November 16, 2000, for the hearing of December 7, 2000, and the notice of the Planning and Zoning Board dated January 4, 2001, for the hearing of January 18, 2001, were insufficient to confer jurisdiction upon the Planning and Zoning Board. The notice of hearing dated November 16, 2000, and the notice of hearing dated January 4, 2001, failed to set forth, with specificity, the nature of the project and requested approvals nor did it specifically set forth that the Applicant was seeking a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins. The Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of January 18, 2001, to approve the Planned Unit Development -Final Plan, commonly referred to as Provincetowne PUD, Filing Two-Final, #73-82U (Provincetowne, 2nd Filing, Final (LDGS)—File #73-82K) and to the granting of a variance to Sections 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion `Y' of the Land Development Guidance System for Planned Unit Developments of the City of Fort Collins, in that, the notices of the Planning and Zoning Board dated November 16, 2000 and January 4, 2001, for the hearings of December 7, 2000, and January 18, 2001, respectively, were insufficient as a matter of law to confer jurisdiction upon the Planning and Zoning Board. To confer jurisdiction on an agency, a public notice must be clear, definite, explicit and not ambiguous. A notice is not clear unless its meaning can be apprehended without explanation. In addition, the notice must set forth all information reasonably necessary to provide adequate warning to all persons whose rights might be affected by the proposed action. In order to accomplish this purpose,the notice, at a minimum, must give the date, time, and place of the hearing and apprise the public of the subject matter of the hearing and nature of the proposed action. The failure to specifically mention the variance request rendered the notice insufficient. Fedder v. McCurdy 768 P. 2d 711 (Colo. App. 1988); Hallmark Builders v. City of Gunnison 650 P. 2d 556; Sundance Hills Homeowners Association v. Board of Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Final,#73-82U January 30,2001 Page 4 County Commissioners, 534 P. 2d 1212; Regennitter v.Fowler 290 P. 2d 223. Also, such failure to specifically notice the variance request of Applicant was a denial of the constitutional principle of procedural due process which requires notice and opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the hearing decision be vacated and that the matter be set for a hearing de novo. Fourteenth Amendment, Constitution of the United States. 4. Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" of the Land Development Guidance System for Planned Unit Developments, in that, Applicant presented no evidence that the variance would result in substantial benefit to the City and that strict application of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" would render the project practically unfeasible. At the hearing of January 18, 2001, Applicant requested that the Planning and Zoning Board grant a variance to the provisions of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion `Y'. Applicant requested that for the purposes of this project that the adjusted gross income for housing provision set forth in said Section be changed from 30% to 38%. In support of this request, Applicant's representative presented a documer' entitled, "KB Home of Colorado Inc., Cost Analysis, Provincetowne Affordable Townhomes." The document purporte, to demonstrate losses to be attributed to the development project if Applicant was not given a variance to the provisions of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r". Applicant was unable tb substantiate the validity of the various assumptions set forth in said Cost Analysis nor the calculations derived therefrom. Applicant's testimony clearly indicated that the Cost Analysis was clearly speculative in nature and was not the product of rigorous application of accepted financial analysis based on validated empirical data. In the alternative, if it is determined that Applicant's Cost Analysis has merit,the criteria for granting a variance is not met solely by a showing of greater economic benefit that Applicant would gain if the variance was granted. Baum v. City and County of Denver, 147 Colo. 104. Pursuant to Section 29-526K of the Land Development Guidance System For Planned Unit Developments, the Planning and Zoning Board has authority to grant variances only in certain enumerated cases. The Planning and Zoning Board is limited by the provisions of Section 29-526K and any variance made without compliance with those provisions is beyond the authority of the Planning and Zoning Board, and void. Cross v. Bilett. 122 Colo. 278. The record of the proceedings clearly are devoid of any evidence that the variance would result in substantial benefit to the City and that strict application of Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" would render the project practically unfeasible. The burden of proof is on the Applicant seeking a variance from a zoning ordinance. La Plata County Com'rs v. Bd of A& 768 P. 2d 1250 (Colo. App. 1988). It is Appellants contention that the Applicant failed to sustain the burden of proof in seeking the variance. 5. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, there was a substantial deviatior from the approved preliminary plans. Notice of Appeal Planning and Zoning Board Decision Wn ovincetowne PUD, Filing Two-Final, #73-82U uary 30,2001 Page 5 Section 29-526F(5)(b) provides that, "As a requirement of approval, the final plan shall be in substantial compliance with the approved preliminary plan." Further, Section 29-526F(5)(b)(1) states that, "For preliminary planned unit developments approved on or after March 13, 1981, `substantial compliance' shall mean that all conditions imposed by the Planning and Zoning Board upon its approval of the preliminary plans have been met and the final plan does not: . . . c. Contain changes which would normally cause the development to be disqualified under the applicable criteria of this chapter." It is Appellants contention that the granting of the variance to Section 29-526C(3)(c), Density Chart H, Base Criterion "k" and Bonus Criterion "r" is a substantial deviation from the approved preliminary plan and constitutes a change which would disqualify the development under the applicable criteria set forth in the Land Development Guidance System for Planed Unit Developments. Jurisdictional Objections To Approval The following are continuing objections to the jurisdiction of the Planning and Zoning Board of the City of Fort 46ollins to render a decision in this matter: *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager of the Agreement of Purchase and Sale of Real Property(hereinafter"Purchase Agreement')by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996, was specifically reserved by Section 4 of Ordinance No. 41, 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-11 l(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duty enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a matter of law, modify an executory agreement. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative discretion which violated the requirements of Section 23-111 (a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City Manager of the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First Addendum To Agreement Of Purchase And Sale Of Real Property, was an improper delegation of legislative discretion hich violated the requirements of Section 23-11 I(a) of the Code of the City of Fort Collins which vests sole authority to Oell real property upon the City Council pursuant to a duly enacted ordinance. Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Final, #73-82U January 30,2001 Page 6 *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Uni+ Development- Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given lega, authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board failed to give timely notice of August 5, 1999, hearing. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the Planning and Zoning Board. *Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of the Land Development Guidance System For Planned Unit Developments requires, "The decision of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board." *Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins Solar Orientation Ordinance, in that, Applicant presented no evidence which would demonstrate that the granting of the variance would neither be detrimental to the public good nor impair the intent and purposes of Section 29-526(2)A-I/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties with regard to solar orientation or access,and that undue hardship would be caused to Applicant by the strict application of the provisions of Section 29-526(2)A-I/A-1.1. *The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999, and filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council of the approval by the Planning and Zoning Board of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD,Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance is incorporated herein by this reference as though set forth in full. obfficiaUOuasi-JudiciaUAdministrative Notice Appellants hereby request that the City Council take Official/Quasi-JudiciaUAdministrative Notice of the Constitution of the United States, the Constitution of the State of Colorado, Colorado Revised Statutes,the Charter of the City of Fort Collins, the Code of the City of Fort Collins,and the Ordinances of the City of Fort Collins. No Waiver Appellants hereby submit the foregoing and reserve the right to present further argument and materials at the hearing. The Notice of Appeal by Appellants is not intended to be construed as a submission to or a waiver of any jurisdictional or such other legally cognizable procedural or substantive defect occurring during the processing of the Application for Planned Unit Development-Preliminary Plan approval nor of any determinations and/or actions taken by the City of Fort Collins prior to and subsequent to the filing of said Application. s ectfu ly submitted, �G av' G. Evans MEETING OF THE PLANNING AND ZONING COMMISSION CITY OF FORT COLLINS, COLORADO Held Thursday, January 18, 2001 At City Council Chambers 300 West Laporte Street Fort Collins, Colorado In the matter of Provincetowne PUD concerning Provincetowne PUD, Filing 2, Final Plan Commission members present : Jerry Gavaldon, Chair • Mikal Torgerson, Vice Chair Jennifer Carpenter Judy Meyer Glen Colton Dan Bernth Staff present: Paul Eckman, City Attorney' s Office Ted Shepard, Planning Department Peter Barnes, Planning Department Georgiana Deines, Planning Department 30 1 MR. GAVALDON: Welcome back to the Planning and 2 Zoning Board meeting tonight. We ' re going to go to Item 3 Number 5, Provincetowne, but before we go, we 'd like to 4 welcome the Boy Scouts here, they' re working on their 5 Citizenship Merit Badge. So, welcome tonight. 6 Okay. Steve, are we ready for staff report, or 7 how would you want to handle -- 8 MR. OLT: I guess I would like some direction 9 from the Board. Just so that everyone in the house is 10 aware of what ' s happening tonight, this is a continuation 11 of the Provincetowne PUD, Second Filing, Final Plan review 12 and decision. This was brought before the Board on 13 December 7th of 2000, just last month. And during the 14 course of that discussion, there had been an item brought 15 up about the affordable housing component of this 16 development proposal, and fact that the Land Development 17 Guidance System has set forth criteria that certain legal 18 documentation relating to the assurance that the 19 affordable housing will be provided and insured, for a 20 minimum of 25 years, be developed and approved or agreed 21 to between the city and the applicant. Based on that 22 criteria, this item was continued to tonight ' s meeting. 23 On December 7th we had gone through the 24 presentation. There had been presentation by staff, the 25 applicant, public input, and discussion. This item was 31 1 continued for, to my recollection, for one particular 2 reason and that was to resolve the affordable housing 3 element . And so, I guess I would like some direction in 4 terms of what the Board would like in the form of 5 presentation, if one is necessary. Looks like Mr. Eckman 6 has something to say at this time. 7 MR. GAVALDON: Okay. Let ' s defer to Paul, 8 because I think we already started some discussions about 9 how (inaudible) . Go ahead, Paul. 10 MR. ECKMAN: Well, I was just reading the 11 minutes, and they state that the continuation is for 12 ascertaining and recovery of the affordable housing 13 documents . Those are the documents brought up by Mr. 14 Evans at the last meeting that we were"nt able to produce. 15 And those need to be brought before the Board. So we know 16 we ' re talking about that . The motion also says, "Also to 17 address other questions and concerns that were brought up 18 at tonight ' s hearing. " And you made the motion, Mr. 19 Gavaldon. I think you had in your mind what those other 20 questions and concerns were that you wanted to have 21 addressed. And maybe it would be best for you to list 22 those concerns and questions too, because we ' re here to 23 discuss those, and then see if that covers all the 24 concerns that the applicant or the audience feels is fair . 25 for us to cover tonight . 32 1 MR. GAVALDON: Okay. So, what I was asked for 2 was copies of the ODP and the traffic information, and ask 3 that Eric Bracke talk about traffic calming as a separate 4 process, not part of the discussion tonight . And we also 5 got copies of the preliminary plan, so we have those two 6 already in Board packets. Glen asked for information on 7 the construction and how it ' s going to proceed and how 8 traffic will be routed. Information on how much traffic 9 will be on existing streets versus new streets. That was 10 Glen' s, and Dan asked for pending litigation be addressed 11 and how does the Planning Board -- do they address that 12 issue. So those were probably the only ones that I was 13 seeing in my mind as specific items that we were going to 14 focus this meeting towards without going all wide open, 15 and still keeping a fair and impartial meeting -- hearing. 16 MR. ECKMAN: And then I notice on the minutes, 17 as to the pending litigation question, I immediately 18 responded to that and our last meeting. And I don' t know 19 if there are any further questions that Mr. Bernth wants 20 to ask regarding that or not but -- 21 MR. GAVALDON: Okay. So it comes down to 22 traffic. Documents that were represented to us and 23 affordable housing component are probably the only items 24 that I see that we would like to focus on tonight . 25 MR. OLT: One thing I would like to add, the 33 1 applicant also has submitted to you, the Planning and . 2 Zoning Board, a request for a variance to a particular 3 criteria and on Point Chart H, the Residential Uses Point 4 Chart . At the time of preliminary PUD, this project did 5 gain points for the affordable housing component, the 6 intent to provide affordable housing, and provide it for a 7 period of time. 8 In that point chart I would like to quickly 9 read the criterion that they' re requesting a variance to, 10 "If the project contains dwelling units set aside for 11 individuals earning 80 percent or less the median income 12 of city residents, as adjusted for family size, and paying 13 less than 30 percent of their gross income for housing 14 including utilities, calculate the percentage of 15 affordable housing -- or affordable dwelling units to the 16 total number of dwelling units in the project and enter 17 that percentage . 18 "If the project is proposed to be constructed in 19 multiple phases, these affordable dwelling units must be 20 constructed as part of the phase for which the approval is 21 sought . 22 "In order to ensure that the affordable dwelling 23 units will remain affordable for a period of not less than 24 25 years, the developer shall record such protective • 25 covenant as may be required by the city under Section 34 1 29-526J4 of the Land Development Guidance System. " 2 Getting to the heart of the matter, this is 3 coming from my memorandum to you -- provided to you, the 4 Planning and Zoning Board. In staff' s evaluation of their 5 request for the variance, staff does understand that the 6 applicant has committed to these affordable, 141 7 affordable, dwelling units, being "for sale" units, they 8 will be for purchase. 9 In 1994, City Council adopted an ordinance 10 defining affordable housing projects, affordable housing 11 units for rent, and affordable housing units for sale . 12 The Affordable Housing Board recommended to council that 13 they increase the amount of household gross income that an 14 individual or family may pay for their housing from the 30 15 percent as stipulated in the criterion I just read to you 16 previously, the -- increasing that from 30 to 38 percent . 17 This is now set forth in he City Code, it ' s Section 18 26-631. 19 That section -- section of that particular 20 section of the code says, "Affordable housing units for 21 sale shall be the dwelling unit which is affordable for 22 purchase on terms that would be affordable to households 23 earning eight -- 80 percent or less of the median income 24 of city residents as suggested for family size, and paying 25 less than 38 percent of their gross income for housing, 35 1 including principle, interest, taxes, insurance, et al . " • 2 Staff has determine that had this request to 3 the -- from 30 to 38 percent on the previously approved 4 Residential Uses Point Chart, would bring this project in 5 conformance with the existing city code, and recommends 6 approval of the variance request. So you' ll need to take 7 action on that as a separate motion from the project 8 itself at the end of your discussion. 9 MR. GAVALDON: Thank you very much, Steve. 10 Okay. We ' ll go with that. So the board will allow the 11 process to go this way, we ' ll allow the applicant to speak 12 specifically on the items that we ' re discussing tonight as . 13 this construction and housing as we have our documents, 14 and the variance, should be the only three items that we 15 should be focusing on. 16 Paul, would you be okay with that approach to 17 the applicant and all groups to be discussed in those 18 three elements? 19 MR. ECKMAN: I think so, unless there ' s some 20 additional item that the applicant or the rest of the 21 audience feels that we have not properly touched on. 22 MR. GAVALDON: And that will fall under new 23 information, and we have to deal with that appropriately. 24 MR. ECKMAN: Apparently we have one, at least . . 25 MR. GAVALDON: Sir, do you want to come up and 36 1 add an item that you feel appropriate? 2 SPEAKER: Do I go ahead and state my name? 3 MR. GAVALDON: Yes, please. 4 MR. MENKE: Hi, I 'm Mark Menke and I live at 901 5 Deerhurst Circle. I 'm in the current Eagle Tree, 6 Provincetowne, Filing One Subdivision. 7 The one item that I didn' t hear discussed was 8 something that I brought up to Ms. Craig, and she ' s not 9 here tonight, and was brought up in the minutes, and that 10 had to do with the drainage from the property. Is -- 11 there is a drainage -- I forget what you call them -- 12 where it gathers in. A pond. There' s a detention pond 13 planned that will be constructed for this project, in the 14 far northeast corner of the project area that -- the way I 15 look it as in Filing 3, not part of Filing 2, but they' re 16 using this, and I don ' t understand. 17 And this was one of the points we made at the 18 December 7th hearing: How you can do something for one 19 filing and construct on the property of another filing? 20 And also I think there ' s some question having to do 21 with -- specifically, with the ODPs . There' s seems to 22 have been a misunderstanding or maybe not a complete 23 disclosure in the record of the ODPs and the dates of the 24 ODPs that the citizenry were shown at different times when 25 -- changes were made to those ODPs over the life of this 37 1 project that we ' d also like to discuss . Because they' re 2 -- and they go back to ODPs dating back to the July of 3 ' 96 . And it has to do with the inlets of the streets, 4 because there were representation made -- representations 5 made that the inlets of the streets are there in the 6 neighborhood and are provided for. And I 'm here to tell 7 you that they' re not there for two of the streets that 8 want to be cut through. That ' s all . Thank you very much. 9 MR. GAVALDON: Okay. With Paul ' s nod, we ' ll go 10 ahead and include those two items and keep them specific. 11 Do you have one, sir? 12 Okay. All right . So let ' s go ahead and have . 13 the applicant come forward and speak specifically to the 14 items that were brought up. And I ' ll go over it again: 15 the housing component, the construction, the variance, and 16 the drainage. And, Steve, you may have to help with the 17 ODP segment of it . 18 So, if we can stay in focus with that, we can 19 go -- we can move this in a fair, orderly manner, and then 20 we ' ll allow citizens to speak only to the items that we ' re 21 discussing tonight, and then we ' ll proceed. Okay. Thank 22 you. And you have -- how much time will you need? 23 MR. VIER: Probably just few moments. I 'm going 24 to discuss the construction access . • 25 MR. GAVALDON: Okay. 38 1 MR. NIER: And then we have other people in the 2 audience that can speak to some of the other matters . 3 My name is Glenn Nier. I 'm with Kaufman and 4 Broad, 8401 East Belleview Avenue, Denver. 5 And, if I may, I 'm going to have to turn my back 6 to you and to the microphone. But I just want to point 7 out what our intention is for construction access, and our 8 concerns in keeping construction away from the existing 9 subdivision. So, I 'm just going to point those out to 10 you. If you have any questions, I ' ll just come back up to 11 the microphone . 12 SPEAKER: (Inaudible. Speaker off screen. ) 13 MR. NIER: Okay. I ' ll try to do it -- 14 MR. GAVALDON: Do we have a pointer? 15 MR. NIER: I didn' t bring a pointer with me. I 16 had a graphic, but the people in the audience wouldn ' t be 17 able to see it. So I think I ' ll able to show you from 18 here. 19 This is the existing subdivision right in this 20 area. It ' s not colored. And our intention would be that 21 we are going to phase this project, but we intend to do it 22 from start to finish, move on-site, and move out when it 23 is completed from a development standpoint . Thank you. 24 Current access into the site is right here off 25 of Provincetowne Road, and this road dead-ends at 39 1 approximately this location and then turns into Brittany 2 Drive. We intend to extend this road, Provincetowne Road. 3 Provincetowne Drive comes in through here. It ' s called 4 Heatherglen Circle. And then move up in through here, 5 which is Provincetowne Road. 6 Our construction access off of Trilby will be at 7 this northern extension here, or access point, and we 8 intend to bring construction traffic not in through this 9 access that already exists, but down through here. So for 10 the scrapers, all the pipe and utility crews, and 11 everybody, will be instructed that they have to use these 12 accesses . They can not use existing streets . And that 13 will be throughout the duration of construction. 14 We ' ll have signs placed on our property that direct 15 people, and, obviously, we ' ll have a presence on site 16 daily with the construction trailer. So everyone will be 17 very aware of the fact that they are not to drive through 18 the residential streets . And that would even be, once we 19 finish our development and go into vertical development of 20 the subdivision, the actual houses themselves . So that ' s 21 our intent . 22 We ' re concerned about it too. It ' s not a new 23 issue with us . We build developments all over the state 24 that we have to deal with this, and it ' s an issue to all 25 of them and an issue with us, so we' re very used to 40 1 dealing with it . 2 Do you have any other questions -- of me? 3 MR. GAVALDON: We ' ll just save the questions for 4 when we get through the applicant ' s presentation, if there 5 are any. 6 MR. NIER: All right. Thank you. 7 MR. GAVALDON: Are there are other members of 8 the applicant -- of the applicant that can -- that can -- 9 will come and speak on the other items that were brought 10 up? 11 MR. RUBEL: Good evening. My name is Dave 12 Rubel. I 'm with LFC Transportation Consultants . We did 13 the traffic impact study and the updates to that . I 'm not 14 sure exactly what -- my address is 1889 York Street, 15 Denver, Colorado, 80206. I 'm not sure exactly what kinds 16 of traffic questions you ' d like to have me address . It 17 wasn' t real specific. So in lieu of that, what I 'd -- 18 what I ' d propose is that I just be here to respond to -- 19 to questions from the commission or from the audience, if 20 that ' s okay. 21 MR. GAVALDON: Are there any Board questions on 22 for the -- on the traffic citing? Okay. We ' ll hold them. 23 I 'm glad you' re here. Thank you very much. 24 MR. RUBEL: Thank you. 25 MR. GAVALDON: Okay. Is there anyone on the 41 1 applicant ' s side that wants to speak on the housing 2 component document, and also on the variance, and be able 3 to address the drainage? 4 MR. KLAUSING: Mr. Chairman, can I use this one 5 or -- 6 MR. GAVALDON: Either one ' s fine, sir. Thank 7 you. 8 MR. KLAUSING: Thank you. Good evening, Mr. 9 Chairman, members of the Planning Commission. My name is 10 Steve Klausing, and I 'm the Director of Public Relations 11 for Kaufman and Broad. And I 'm going to speak to you 12 tonight about two issues, the first is the affordable 13 housing component, and the second is our request for a • 14 variance. 15 We have worked very diligently since last 16 December to put together a housing plan and present that 17 to the City staff for their comments and review. And as 18 of, I think it was about 5: 45 this evening, we had final 19 is crossed and is dotted on that plan. 20 We originally submitted some documents about ten 21 or twelve days ago. We've had a series of meetings up 22 here. The City Attorney and I and Mr. Waido have been on 23 the phone discussing the affordable housing planning 24 element on a daily basis . . 25 I think that I can represent -- and I would 42 1 certainly encourage the staff to -- to contradict me if 2 I 'm wrong, but we have at this point, agreement on all 3 issues regarding the affordable housing plan. We have 4 both a plan which has been drafted and agreed to. 5 I think that there' s maybe some more is to 6 cross and is to dot just mainly because of the rapid 7 speed with which we did this. But I believe we are 99. 9 8 percent in agreement on everything. 9 We also have what ' s called Master Covenant. 10 This property will originally have a master covenant which 11 covers all of the property identified in the plan as 12 affordable housing. Affordable housing is defined in your 13 city code, and back when this project was originally 14 approved, as having a tie, or a component tie to the area 15 median income. And that area median income is calculated 16 by the Department of Housing and Urban Development . Their 17 income limits is for the Fort Collins area. We have tied 18 our plan to that. This property is restricted by the 19 recorded covenant which will go of record at the -- well, 20 right after the creation of the lots . So when we file a 21 condominium map, immediately after that will be filing a 22 covenant, master covenant, which restricts the identified 23 lots, which are 141 at this time, to -- to being 24 affordable for a period of 25 years . 25 As more of the property is developed, or less, 43 1 that number will be adjusted. But, at this point, we have 2 made application -- in our application, I believe, it ' s 3 for 331 units and 141 is a little more than 30 percent, 4 as you can see . So we' re doing a little more than that in 5 this submitted original filing. So, as to the affordable 6 component, we believe that we have complied with the city 7 code . We have provided that plan, it has been adopted by 8 the city, and we ' re prepared to move ahead. 9 Now, we do have before you a request for a 10 variance. Now, that variance is based upon two things . 11 The first is the fact that the city code, or the city' s 12 policy, regarding the definition of affordable housing was 13 changed, and, I believe, that was around 1993 . That 14 change -- it used to read that it was -- as in the Land 15 Development Guidance System -- 30 percent . And I want to 16 make -- there ' s reference to two 30 percents, so let me 17 make then clear. 18 The first 30 percent is our agreement. We ' ve 19 agreed to build 30 percent of the units as affordable. 20 That ' s in a covenant, that ' s in the plan, that ' s in the 21 contract with the city. That ' s not what we ' re talking 22 about . 23 The formula for determining what an affordable 24 unit is, is you take the area median income for Fort . 25 Collins, you multiply that times 80 percent and then out 44 1 of that 80 percent -- let ' s just say, just make things 2 real simple, like $10, 000 -- that ' s very, very low, it ' s 3 more in the range of $40, $50, 000 . This $10, 000, you 4 multiply that times 80 percent. That becomes $8, 000 . 5 Then you multiply that times -- the old code says 30 6 percent, the new code says 38 percent -- for units that 7 are for sale. 8 The old code did not distinguish between For 9 Rent units and For Sale units . I believe that the city 10 staff re-examined that issue and concluded, appropriately, 11 that there is a difference in a For Rent unit and a For 12 Sale unit . And that to get comparable kind of housing 13 you have to be able to pay a little bit more for a For 14 Sale . And, also, there are some costs' included in For 15 Sale units that you wouldn' t commonly find in a For Rent. 16 That ' s why they increased the For Sale units from 30 to 38 17 percent . 18 That 38 percent is multiplied times the 80 19 percent that you come out with. That figure is what a 20 buyer can spend for their housing. That ' s called the 21 maximum monthly housing expenses. It must include 22 principal, interest, taxes, insurance, homeowner' s dues, 23 utilities, mortgage insurance. It has to include, 24 basically, everything that they would spend for their 25 housing allowance. That ' s the maximum amount that they 45 1 can spend on a unit . • 2 Obviously, if you take certain things out like 3 homeowner' s association dues, utilities, maintenance, and 4 that type of thing, actually what they' re spending on 5 their unit is less because you've had to take a certain 6 amount out . 7 What we are asking is that you grant us a 8 variance from the old code and apply the new standard 9 which is the 38 percent. The legal standard for our 10 obtaining this variance is that it must be practically 11 unfeasible for us to build and sell the units at 30 12 percent . 13 And I, at this point, am prepared to show you 14 some figures and calculations we have concluded. 15 May I distribute these, please, Mr. Chairman? 16 (Distributes documents . ) 17 What I have given you is a form of a proforma . 18 It ' s not exactly a proforma, but let me kind of walk you 19 through it a little bit . Plan 1, 2, and 3 across the top, 20 that ' s -- that ' s three different plans that we would 21 intend to offer. And that ' s basically what they are. Two 22 bedroom and three bedroom. I think that to be -- to be 23 honest with you I think that it ' s two three-bedrooms, but 24 I can' t -- I can ' t swear to that . . 25 The first line there, "Land Development, " that 46 1 basically is the cost of the land that we paid the city, 2 and the cost to develop lots. Now, that ' s based upon 3 figures that we have a pretty good handle on at this time, 4 because we are anxiously waiting to go ahead and start 5 developing. 6 You then have what ' s called "Direct 7 Construction. " That ' s the sticks and bricks . And to 8 build, for example, Plan 1, it ' s $135, 560. 9 You then have what we refer to as, "Other 10 variable and Fixed Costs . " These are things like the 11 cost to put up a model, the cost to do marketing, sales, 12 promotion, et cetera, overhead, but no profit . No profit 13 at all. That is -- those are our fixed costs . You then 14 get the final cost, which for Plan One is $153, 442 . 15 The next series of calculations is the Sales 16 Price . The three-person is based upon the two bedroom and 17 it uses the 30 percent of the income. So what we do is we 18 take the median area income for three-person family in 19 Fort Collins, multiply it times the 80 percent, and then 20 multiply that times 30 percent. That ' s how much they can 21 afford to spend. That comes out to about $700 a month. 22 After you take out homeowner ' s insurance -- or, 23 excuse me -- common area fees and that type of thing. We 24 then amortize that payment, $700 a month, as what is a 25 common market rate of 8 percent times 30 years . And we 47 1 come up with a value of that house. And the value of that . 2 house at -- for the three-person at 30 percent -- is 3 $89, 743 . That ' s the most that we can charge somebody for 4 that house. The most that we will be able to charge 5 somebody at 30 percent is $89, 743. 6 Again, that is a three-person family. That ' s 80 7 percent, which is the affordable limit. It ' s taking 30 8 percent of the 80 percent of their housing expenses . It ' s 9 taking utilities, which, of course, we estimate: gas, 10 water, sewer, common area maintenance, that type of thing. 11 Homeowner association dues . Take that out . You come up 12 with $89, 743 . 13 Now, we do a very same calculation right below 14 it at 38 percent, which is what we ' re asking, that you 15 allow us to go to 38, the current city code. And you can 16 see that the value then is $127, 725. That means that 17 that ' s the most that an eligible buyer -- and only 18 eligible buyers can buy these units . They have to be -- 19 they have to qualify. They have to qualify to be an 20 affordable buyer. We couldn' t sell these to somebody 21 making a hundred thousand dollars . We have to sell them 22 to somebody who falls within these guidelines . 23 Under the second calculation, we could charge 24 $127, 725 . If you then drop down to, "Gain-Loss, " that . 25 shows you essentially what the gain and loss under each 48 1 scenario. Obviously, at 30 percent the difference between 2 $89, 000 and $153, 000 is a substantial amount of money, 3 $63, 000 . 4 At 38 percent it drops down to $25, 000 . What 5 we' re trying to -- the point I 'm trying to make is that, 6 even at the 38 percent, obviously these units are -- we ' re 7 going to have to subsidize them. We' re going to have to 8 subsidize them to a very substantial amount . At 30 9 percent it is -- it ' s almost half of the -- half of what 10 it is -- well, it ' s 40 percent of what the -- of what the 11 cost is . 12 Affordable housing is -- is -- it promotes a 13 very legitimate city goal . And it is something that we ' re 14 committed to. Our housing plan stipulates that we will 15 market, have a specific and special marketing program, to 16 try to bring buyers in, and we will make a very, very 17 concentrated effort . 18 As you probably recall, our sales plan for the 19 remainder of the property stipulates that we only sell 20 building permits at the rate of one for every -- two for 21 every affordable housing unit that ' s sold. So we have a 22 very strong motivation to sell these. 23 I could take you through the analysis, but I 24 think it ' s pretty self-explanitory at this point for the 25 four-person. At 30 percent on Plan 1 it ' s $105, 000 . At 49 1 38 percent it goes to $147, 000 . And then you can see the . 2 difference. The gain and loss, again, at the 30 percent 3 is about $47, 000, and at 38 percent it ' s a loss of about 4 $5, 000 . 5 I wanted to stress that the total cost figures 6 here do not include profit . There' s no profit . We do 7 cover administrative expenses, and we do cover the things 8 like the sales complex, the models, and that type of 9 thing, but it is absent Kaufman and Broad' s profit . 10 In closing, I think that if you have any 11 questions when you' re all finished, and so forth, I would 12 be happy to go back over this . I hope I ' ve made it clear 13 enough to make the point . We believe that it is -- it is 14 painfully, to us, obvious that it is practically 15 infeasible to build at 30 percent . 16 The city code has, since 1993, recognized that 17 38 percent is an appropriate amount . We simply ask that 18 you give us the benefit of what anybody going through the 19 process would get right now. It doesn' t change the fact 20 that we ' re going to build 30 percent affordable . It 21 doesn' t change our plan with the city at all . And it will 22 -- it will allow this program to proceed. 23 I want to thank, as I conclude here, I want to 24 thank the Planning Staff and also the City Attorney Staff . 25 who have worked very, very hard with us to put this 50 1 together very diligently. And I would encourage you to 2 accept our request and the Planning Staff' s recommendation 3 for approval. Thank you very much. 4 MR. GAVALDON: Thank you very much. Okay. 5 Steve, or is any one member of the staff available, or the 6 applicant, to help -- to talk to us about the drainage on 7 the property, and also about the Filing 3 and Filing 2 of 8 the ODP? Basil, you got one? 9 MR. HAMDAN: I ' ll start with the drainage. I 10 don' t know if this -- if you can see -- I think they were 11 addressing this issue . This is the -- the limits are here 12 -- this is the limits of the filing of Provincetowne, 13 which is commonly known -- commercial name is Eagle Tree 14 Subdivision. Currently it ' s mostly built out. 15 There ' s a multi-family component in that 16 subdivision in this area, and an existing detention 17 facility, detention pond, on this corner -- as you 18 mentioned -- on the northeast corner of Trilby and Lemay. 19 The applicant on this second filing is proposing 20 a drainage detention area in this location. The out -- 21 the outlet from this pond will go down an existing swale 22 and pipe system, coming down here, joins this existing 23 pond, crosses across Lemay, and goes out towards Fossil 24 Creek to the east . 25 The objection, as I understand it, was that how 51 1 come this subdivision is draining across this other • 2 private detention system. And I want to emphasize that 3 this is a very common situation, that it happens all over 4 town where we have detention -- you know, drainage 5 facilities from upstream subdivisions going through 6 neighboring, downstream subdivisions. 7 When this plot for Filing 1 was done, all these 8 areas, drainage areas, were designated as public -- 9 publicly -- on public easements were designated on these 10 drainage facilities . So there ' s a drainage easement 11 designated to the City of Fort Collins . And we do that 12 everywhere to -- so we don' t landlock upstream • 13 subdivisions, so that these areas can drain across -- 14 I want to emphasize also that they are providing 15 their own detention, so they are not sending developed 16 flows . These are detained flows that were planned. Even 17 at an ODP stage, when this was envisioned to be one large 18 ODP, you knew that the drainage tended to drain in this 19 direction, so we had to provide a future outlet for this 20 area to go across the first phase, which was the 21 downstream area that was developed first . 22 So that ' s why all these areas were designated as 23 public drainage easements on private property. So it ' s 24 not unusual for this to happen. It just happened in this • 25 case that there was a lag -- a large lag between when the 52 1 first filing was developed and the second. And it ' s two 2 different developers, so it presents a little different 3 scenario, but, other than that, it ' s pretty typical. So 4 if you have any questions about that I 'd be happy to 5 answer. 6 MR. GAVALDON: Okay. I think we covered all 7 items that were brought up. What we ' ll do is, since 8 there' s no Board -- there' s no indication of any questions 9 at this time, we' ll allow citizen input to be specific to 10 the items that we are addressing tonight . Are there any 11 citizens that would like to come up and speak? Okay. 12 Four minutes per person, please. Georgeanne, could we 13 time? Thank you. 14 MR. EVANS: Good evening, Ladies and Gentlemen, 15 my name is Dave Evans, I also am a resident of the Eagle 16 Tree Subdivision, Provincetowne 1 Filing. We have two -- 17 or I have two issues -- primary, that we are surprised 18 again by a variance request. Notification for the public 19 hearing never stated that there would be a variance 20 request . At the minimum we' re requesting that this Board 21 postpone this matter in order to give us an opportunity 22 to be able to investigate the legitimacy of the request 23 for the variance, and present evidence that might 24 contradict what the applicant has presented as far as 25 hardship for the variance. 53 . 1 Secondarily, there was questions at the first 2 meeting regarding the ODP as it related to the connector 3 streets along Brittany. What I think we needed -- or 4 Menke requested clarification of -- there was some dispute 5 as to when those connectors appeared on the ODP. And I 6 think -- I don' t know if it was Miss Craig, or one of the 7 members asked that that be brought forward back to the 8 Planning Commission, and a determination made as to when 9 the connectors actually, physically appeared on what 10 version of the ODP, because there' s a multiplicity or 11 multitude of ODP approvals starting in ' 82 all the way 12 through ' 97 to today, really, on this matter. So I think 13 they want a clarification of that because our criteria 14 was, as a neighborhood, the street connectors never 15 appeared on any ODP that we every saw prior to 1997, 16 January 1, 1997 . 17 So we needed some clarification and the Board 18 wanted some clarification because that ' s always been a 19 matter of contention for the residents there . 20 MR. GAVALDON: Thank you. Okay. Thank you very 21 much. We have two podiums here. If you would please 22 utilize both, that would be great . 23 MR. EVANS: Thank you again. 24 MR. GAVALDON: Thank you. 25 MR. EVANS: Basil didn' t quite catch what I was 54 1 trying to get to on the draining. The point is -- I guess 2 I would like to refer to the little handout that we got in 3 the mail, if I may. Is that okay? 4 MR. GAVALDON: It depicts the filing as this 5 grey area, and this is what I believe it to be. Okay. 6 And where they are going to put the retention pond is not 7 in the grey area. They' re going to put the retention pond 8 in a Filing 3 area. 9 That ' s not part of Filing 2, and I don' t 10 understand how you can build something in a filing area 11 that ' s not part of the filing. What gives them the right 12 to do that? 13 MR. GAVALDON: Okay. 14 MR. EVANS : And how does that satisfy the 15 drainage issues for that retention area to go in. At the 16 very least, this documentation as it ' s been presented to 17 us is confusing. 18 MR. GAVALDON: Okay. 19 MR. EVANS : The second thing that I ' d like to 20 point out is that, when we bought our property and we 21 moved into Eagle Tree, what was given to us at the time 22 was a ODP dated July of 196. That ODP dated July of 196 23 did not have the connector streets for -- could I point to 24 the map -- for two of the streets. 25 The two connectors that have been put in are 55 1 right here, which there are no curbs and gutters that • 2 allow for that today, which was testified to by City 3 Engineering at the last meeting. And right up here . So 4 these two connector streets are what I am particularly 5 disputing, and are what many of the neighbors have 6 disputed. 7 They weren' t on the ODP going back to ' 96. They 8 appeared magically at some point in a city meeting that we 9 had, and from that point forward we've protested those 10 streets being connected through in vain. And I, for one, 11 would request that this plan be stopped, and those streets 12 be eliminated from this map, and to go back to what was 13 the original filing back in July that I had privy to when 14 I bought my property. And I guess that ' s really all I 15 have tonight . 16 MR. GAVALDON: Okay. Thank you. Anyone else? 17 MR. HAMDAN: Can I address the issue of the -- 18 MR. GAVALDON: Okay. Just a sec, Basil, I want 19 to make sure we 've got all the citizen input, and we ' ll go 20 over the steps and cover your points . Any more folks want 21 an opportunity? 22 Okay. Seeing that we don' t have anymore citizen 23 input, we ' ll close the public discussion. 24 Basil, if you want to you go ahead and speak on • 25 the -- on Number 3, the Filing 3 detention pond for Filing 56 1 2 . 2 MR. HAMDAN: I guess I misunderstood the 3 question. I think what he is -- what Mark is referring to 4 is this area, in the corner here that is not part of 5 Filing 2. However, the detention pond for this part is in 6 this area. It is currently being plotted with this Filing 7 2 as a tract, correct? I think we are planning it as a 8 tract . 9 However, there ' s no planned development in this 10 area, that ' s why it ' s not darkened, it ' s still lightened 11 up. But it is being plotted, and there is a drainage 12 easement that will be designated on it. And since they do 13 own the property at this point, and they will be 14 designated -- designating that property as a drainage 15 easement, it is allowed. So it ' s on their property, and 16 they will be planning it, however, they will not be 17 developing it at this time. 18 MR. GAVALDON: Thank you very much. Ward, 19 could you help us on the ODP street, connector streets, or 20 Sherry. I don' t know which one is -- which one is going 21 to take that one. 22 MS . WAMHOFF: I can probably address it because 23 I 'm the one who spoke on it last time. 24 MR. GAVALDON: Okay. Great. 25 MS. WAMHOFF: What I had indicated, the 57 1 right-of-way had been dedicated for street returns in that 2 area. They may not be built out there. They weren't 3 built on the other side of the street until Eagle Tree 4 went in, but there was right-of-way that was dedicated for 5 curb returns that does exist on that other side. So 6 obviously at the time that they platted the street, it was 7 intended that there was to be connections just as there 8 was on the east side of the street . 9 MR. GAVALDON: Okay. If I recall, an ODP is 10 like a bubble chart . Streets, necessarily, are not 11 really defined. 12 MS . WAMHOFF: They may not. Typically local • 13 streets are not defined. It is just usually collector 14 streets that are defined. 15 MR. GAVALDON: The collectors . But it ' s a real 16 bubble -- it ' s just a real bubble overview. 17 MS . WAMHOFF: Correct. 18 MR. GAVALDON: Okay. Okay. Thank you. Steve 19 you want to -- or Paul -- tackle the variance? 20 MR. OLT: The Land Development Guidance System 21 provides that, "Notice of the time, date, and place of 22 the Planning and Zoning Board' s hearing on a preliminary 23 plan shall be published in a newspaper of general 24 circulation within the city at least seven days prior to 25 such hearing. " 58 1 For whatever reason the Land Development 2 Guidance System never required us to publish notice of a 3 final. We have always thought that we should, and so we 4 do. But all that we' re required to do is publish notice 5 of the time, date, and place. And we don't have to 6 include, for legal purposes, in that publication all the 7 topics that we might be talking about on the hearing -- 8 at the hearing on the matter. 9 MR. GAVALDON: Okay. And you can file the 10 variance then? 11 MR. ECKMAN: Yes. So I don ' t believe we had a 12 legal reason -- a legal requirement to publish in the 13 newspaper the topics that we might be discussing tonight 14 and the variance, though a new issue, didn' t have to be 15 included in the notice. 16 MR. GAVALDON: Okay. Thank you. Paul or Steve, 17 do you want to tackle the ODP connecting streets and the 18 ODP, I believe Sally had a question about this on December 19 7th. 20 MR. OLT: Yes . Getting back to Mr. Menke ' s 21 concerns -- looking at a couple concerns, I think the 22 drainage -- well, okay, you asked on the ODP, and the 23 street connections first. I wasn' t involved in the 24 Provincetowne PUD in 1996, but I am certainly aware 25 through my research, that there was an Overall Development 59 1 Plan that was reviewed in 1996 and possibly July was one 2 of the iterations . But I am showing you a rendered copy 3 of the Overall Development Plan up on the screen that was, 4 in fact, brought to the Planning and Zoning Board on 5 December 16th, 1996. This plan was approved by the 6 Planning and Zoning Board, and it shows, as typically an 7 ODP will show, a collector street network through the 8 property. And then, in this particular case, in these two 9 locations, you can see these orange circles and those say 10 on the approved Overall Development Plan, "Potential local 11 access connections . " And both of those connections are in 12 arrow form only, but that ' s typically the way a local 13 street connection would be made . 14 So those were in fact shown 'on the approved 15 Overall Development Plan of record, that has been recorded 16 in the City of Fort Collins, that then has been carried 17 over to the preliminary PUD, which the Planning and Zoning 18 Board approved August 5th of 1999 . Those arrows from the 19 Overall Development Plan, potential local street 20 connections now are shown as local street connections on 21 the preliminary approved PUD. That is being carried over 22 now into the final PUD plan that ' s before you tonight, 23 identical locations . 24 So that has been of record since the plan was . 25 reviewed and approved in 1996, in essence . Dealing with 60 1 the retention, or detention, pond issue, Basil has 2 addressed it, I think, adequately, but what I want to 3 point out -- Mr. Menke was concerned that the map that was 4 sent to the citizens did not show that detention, or 5 retention, pond on the map as part of Filing 2 . This is, 6 at a thousandth scale, a vicinity map and nothing more. 7 It shows the general configuration of a development plan. 8 It ' s a vicinity map. It ' s not a detailed development 9 plan. 10 But, as you can see on the final PUD plan, that 11 are is, in fact, planned as a detention pond as part of 12 the Provincetowne 2nd Filing, and it is being platted as 13 part of Provincetowne 2nd File. And I ' ll answer any 14 questions the Board may have. 15 MR. GAVALDON: Okay. Thank you very much. 16 I ' ll allow a rebuttal from the applicant if they choose 17 to. 18 MR. ECKMAN: I think that we should, and I think 19 also -- and I want to talk a little bit about this notice 20 -- because I was just advised that not only did we publish 21 for meeting, but we also as a courtesy, not as a 22 requirement in the LDGS, but as the courtesy, we did a 23 mailing as well. But, as Mr. Evans spoke, he spoke only 24 to the issue of notice and perhaps ought to be afforded 25 the opportunity, if he wishs, if he is opposed to the 61 1 variance, to explain to the Board why he believes that the 2 applicant has failed to carry it ' s burden to justify the 3 variance, if he wishes . If not, if he has no issue about 4 that, that ' s fine, but I thought you ought to afford him 5 that opportunity. 6 MR. GAVALDON: Okay. Mr. Evans, if you would, 7 and then we ' ll allow the applicant a bit of time to do a 8 rebuttal . 9 MR. EVANS: My reason for having the objection 10 to the procedure of having the P&Z Board proceed in this 11 matter is due to the lack of our ability to formulate an 12 opinion as the merits, or lack thereof, of the applicant ' s 13 request for the variance, since we ' ve been surprised by 14 the proposal to do a variance . 15 It appears that the variance will significantly 16 deviate from the requirements of the LDGS. It would be 17 only fundamentally fair, procedurally, every other 18 fashion, to provide us an opportunity to evaluate what 19 they' re presenting as far as evidence seeking the variance 20 request. We have no opportunity at this juncture to 21 evaluate that request for the merits, and juxtapose 22 against what the conditions set out in the LDGS require. 23 So for me to just arbitrarily indicate that the applicants 24 request for variance has no merit would be of sheer 25 folly. It may have true merit to it, it may be merit to 62 1 the core, but at this juncture we haven' t had an 2 opportunity to formulate any kind of rational response or 3 review of it . And I think when you' re asking for variance 4 of that magnitude, that goes to the very essence of the 5 economic nature of the structure of this transaction. 6 The least that the Planning and Zoning Board could do 7 would be to afford the general population, the general 8 public the opportunity to be heard on that issue. So, 9 thank you, Mr. Chairman. 10 MR. GAVALDON: Thank you very much. Will anyone 11 from the applicant party would like to make any comments 12 or rebuttal. Usually we do it in 10 minutes, if you can 13 do it in 5 we ' d appreciate that . 14 MR. KLAUSING: I can do it in three. 15 MR. GAVALDON: Okay. You need to. 16 MR. KLAUSING: Mr. Chairman, Members of the 17 Planning Commission, we had no comments on anything except 18 for the -- a brief response on the request for the 19 variance. We believe the staff has adequately answered 20 all of the questions regarding the drainage and traffic, 21 and we do agree with all those, as well as the chronology 22 from Mr. Olt of the approval of this project over the past 23 several years . 24 In regard to the 38 percent, I don' t believe 25 that Fort Collins code requires that the developer built 63 1 affordable units either at a loss or that, in fact, 2 that -- that the project not make any money. We have made 3 a representation to the city, and that representation 4 must be backed up at a later date with substantial filings 5 with the city, which are required in contract form, which 6 go beyond the code. These contract provisions visions 7 require that we provide the city with construction costs, 8 and other costs, and so forth, associated with this 9 project . The costs that we have provided to you are a 10 good faith effort that we have spent a substantial amount 11 of time putting together. And, in many instances, these 12 costs are based on direct experience, and in some 13 instances they are based on actual, direct costs that we 14 will incur, or know that we will incur in our estimating 15 of this particular project . But if the city has any 16 concerns, we ' ll be providing reports of a detailed nature 17 to the city throughout the history of this particular 18 project . 19 And I would also urge the Planning Commission 20 not to lose sight of the fact that what we are asking is a 21 return to -- or bringing us up to current law, existing 22 law, existing policy as recognized by the -- by the 23 Planning staff and by the city. Frankly, to not bring us 24 current would be -- would be an injustice. • 25 It would be an injustice not to us, but also, I 64 1 believe, to the city, because I think that this will make 2 this project practically infeasible. Look at that those 3 figures. We ' re not going to build these and lose $60, 000 4 a unit. We just -- we can't do that. 5 What does that mean? It has to be not as nice 6 a project. And, you know, that ' s the economics of it, you 7 know, and what we ' re trying to do is provide a good 8 project and a good product. And, to be honest with you, 9 if we can go with what the city' s current code is, we can 10 do a better project. We can do this project that we ' re 11 talking about. 12 I 'm not saying we ' re going to build anything 13 less, but, you know, obviously, you know, we want this 14 project to work for everybody. You know, the key thing 15 that I think we all have to keep harping back to, is that, 16 while we only have a 141 of these units, we have twice 17 that in this first filing that we cannot build any of 18 those until we have built and sold affordable units, so -- 19 and we 've already bought this land. We own this land now. 20 So we have a tremendous motivation to make this work. We 21 are motivated to the extent that we ' re going to be 22 subsidizing these to many thousands of dollars, and I 'm 23 sure that, you know, the facts and figures that we provide 24 to the city over the course of the life of this project 25 will bear that out. Thank you for your time, and I 65 1 apologize I went over my three minutes . 2 MR. GAVALDON: That ' s all right. Thank you very 3 much. Okay. ' We ' ll bring this back to the Board now. Are 4 there any questions for the staff or applicant or 5 citizens? Any Board members have questions? Oops . Any 6 Board member have any questions? Jennifer. 7 MS . CARPENTER: I guess this is probably for Ken 8 and maybe I just missed it. Do we actually have an 9 affordable housing agreement signed at this point? 10 MR. WAIDO: No, it ' s not signed. It ' s in a form 11 that we ' re ready to sign, I believe. 12 MR. ECKMAN: I left at your desk copies of the 13 agreement that we have been so diligently working on 14 almost without stop, today as a matter of fact, and you 15 have that at your desk. It ' s about 23 pages . If you look 16 there, it ' s the stapled document . 17 And it is not signed. It probably wouldn' t be 18 appropriate for signature until after the Board has ruled, 19 and certainly the covenants shouldn' t be recorded until 20 the condominiums have been actually mapped and are able to 21 be conveyed, and that ' s when you ' d record the covenants 22 against those condominiums. But I can tell you that we 23 have an agreement, and Ken and I have worked hard on it 24 today with Steve Klausing. And we believe that we have a 25 meeting of the minds on all substantive matters, and it ' s 66 1 all spelled out in an agreement. We did have to hurry to 2 get it here for you tonight, so there may be some 3 typographical errors or grammatical imperfections that we 4 could do, but I can assure you that we feel comfortable 5 with the substance of it and we wouldn' t expect to change 6 the substance of it. 7 MS. CARPENTER: So, if we chose to approve this 8 project, should it be contingent on the signing of that 9 affordable housing agreement? 10 MR. ECKMAN: I think that the applicant would 11 agree with us, and if not please let us know, that they 12 intend to sign that agreement . 13 MR. KLAUSING: Absolutely. We would not . 14 (Inaudible. Off microphone. ) 15 MR. GAVALDON: Okay. Thanks . Anyone else? 16 Any -- 17 MR. TORGERSON: Yeah. I had a question for the 18 gentleman. I 'm sorry I forgot your name. 19 MR. KLAUSING: Yes . 20 MR. TORGERSON: You presented a pretty thorough 21 analysis of your, you know, of your proforma here. This 22 wasn' t done the last time you came to the P&Z Board, you 23 weren' t asking for this variance. 24 MR. KLAUSING: Actually we did not -- first of 25 all, we didn' t have those documents put together because 67 1 it was, candidly, an oversight on our part . We didn't . 2 realize at that hearing all these documents had to be 3 finished. And so at that point then we dove into actually 4 putting the document together and everything. And so we 5 just simply were not prepared the last time, December 7th. 6 We didn' t think we had to have this document done. It ' s 7 our error, and -- 8 MR. TORGERSON: But during the planning process 9 you elected to select the point -- in the points chart the 10 option that you would be building these at 30 percent of 11 the AMR. 12 MR. KLAUSING: During that process, which was 13 back in 1996 -- first of all, we didn ' t own the property, 14 so I can ' t speak to what those people did or what they 15 thought . There ' s wasn' t any choice if you -- if you 16 wanted to build affordable housing, that was the 17 definition of affordable housing. 18 The bottom line is the city' s changed the 19 definition of affordable housing. We believe that it ' s an 20 appropriate change because it reflects the difference 21 between rental units and for purchase units . There is a 22 difference. So they've agreed in this -- in the case it ' s 23 38 percent . And, you know, way back then there ' s wasn' t a 24 choice though. That ' s what the LDGS said, 30 percent. • 25 That ' s why we ' re asking for a variance . 68 1 MR. TORGERSON: And the difference between 2 rental and For Sale units is that they have homeowners ' 3 insurance, maybe HOA dues, things like that? 4 MR. KLAUSING: There are additional costs, and 5 there' s also a difference in value. You know, if you take 6 feature by feature, square foot by square foot, for a 7 purchase unit you have to spend more to get more. And if 8 you look at per square foot construction costs and per 9 square foot costs to the -- to the consumer, it is 10 typically, product for product, less expensive for 11 rental . So it ' s not -- it ' s additional cost that all go 12 into it, HOA dues for example, and also, in this case, we 13 have to include every single thing they would pay for 14 their housing. 15 MR. TORGERSON: Right . But presumably someone 16 who buys a house and then rents it to somebody doesn' t 17 rent it to that person at a loss, so that person' s passing 18 on those same costs to the person that ' s renting the 19 house. 20 MR. KLAUSING: That ' s probably the case, but 21 we ' re talking about rental units that are built to be 22 rented. Obviously a single-family person, or 23 single-family detached house, they would try to rent their 24 house for what they' re paying for it . 25 MR. TORGERSON: Right . And that would include 69 1 all those same costs so the justification that for sale 2 units should be bumped up because it includes things like 3 owner ' s dues, taxes, and things like that, really doesn' t 4 wash because a for rent unit presumably would include all 5 those things as well, or the person that owns the rental 6 unit would be losing money. 7 MR. KLAUSING: That ' s the case if that ' s a 8 person who owns their unit and they' re going to rent it 9 out, which, incidentally, is prohibited under this 10 program. There won' t be any rental units . That is not 11 the case though if you look from our perspective, building 12 the units . The unit are not comparable . • 13 I ' ll give you one example, just one example, 14 mortgage insurance. Mortgage insurance for these units 15 will be at least $30 to $35 to $40 . That ' s not something 16 that a renter pays . 17 MR. TORGERSON: Okay. Thank you. 18 MR. GAVALDON: Okay. Anything else? I have one 19 if you can come. Okay. I may have to go back to a 20 no-brainer, tell me if this is a no-brainer, but "25 years 21 to be affordable, " what does that mean in for sale units 22 versus rental units? 23 MR. KLAUSING: That means that this restriction, 24 which is a title restriction, as it will appear in the 25 chain of title, and -- unless a person doesn' t use a title 70 1 company -- then this restriction is going to be passed on 2 to each and every buyer down the line for the next 25 3 years. Frankly, even if they didn' t use a title company, 4 it ' s there. But let' s just assume that they do. That 5 means that the -- we sell this unit to you, and five years 6 down the road you want to sell it yourself. You are 7 similarly restricted on who you can sell it to just as we 8 were. That is to ensure that the city retains its stock 9 of affordable housing. Because what we want to avoid is 10 windfalls . I mean, if we ' re subsidizing these, and 11 somebody' s getting into a unit for $10 or $15 or $20, 000 12 less than what it cost, we don' t want them to turn around 13 a year or two or five years down the road and sell it a 14 make a huge profit right away. We just can' t allow that, 15 because they shouldn' t get the benefit of the city' s and 16 our sacrifice . We ' re both making a sacrifice for this 17 program. You know, it needs to be available for each 18 person down the road for 25 years to take advantage of. 19 MR. GAVALDON: Okay. Let me take your example 20 one step further. Okay. You sell me the unit, so that 21 unit that I have, and it ' s Unit 101, right? And Unit 101 22 will hold that 25 year, "for affordable" element on it . 23 So I cannot say, "Hey, Judy, take 101, " and move my 24 element to 102 . She can' t -- I can' t do that. 25 MR. KLAUSING: You can' t say -- 71 1 MR. GAVALDON: You can' t transfer it . 2 MR. KLAUSING: No. No. If you try to sell a 3 unit to her, well -- 4 MR. GAVALDON: Okay. I was just thinking that, 5 if she lived next door, and I wanted mine to be 6 affordable, you can' t transfer it, it stays with the 7 property. 8 MR. KLAUSING: That ' s right. That ' s right . 9 Because it ' s in the chain of title . 10 MR. GAVALDON: Okay. I see. 11 MR. KLAUSING: And it ' s also -- it ' s in the 12 master covenant . And I believe that each time a piece of • 13 this property is sold to us, it ' s also been -- a 14 restrictive covenant has been filed at that time as well . 15 MR. GAVALDON: I see . Okay. And then, last, I 16 was looking at your table. If you went with -- and my 17 numbers are rough -- but, if you went with a -- Okay -- 30 18 percent, the deficit, or delta (sic. ) , would be $2 . 5 19 million of those 42 units . If you go to 38 percent, it ' s 20 about $1, 000, 050 . 21 MR. KLAUSING: I haven' t done that calculation, 22 but I ' ll -- I ' ll trust your numbers . 23 MR. GAVALDON: So going to 38 significantly 24 reduces the deficit cost . • 25 MR. KLAUSING: It certainly makes it so that 72 1 we' re not losing as much money. 2 MR. GAVALDON: Are we losing -- are we going to 3 be eliminating anyone from affording it at the 38, if we 4 go there from 30? 5 MR. KLAUSING: What ' s going to happen is that 6 people will be able to spend -- there will be a bigger 7 pool of people. 8 MR. GAVALDON: Bigger pool. Okay. Than we were 9 at 30 percent? 10 MR. KLAUSING: Right . Right . And to be honest, 11 that ' s a little bit of a concern that we' re thinking 12 about, you know, is that we 'd like as deep a pool as 13 possible because 141 of these -- we ' d like as deep a pool 14 as possible. 15 MR. GAVALDON: Okay. I just had to ask. Okay. 16 Dan? 17 MR. BERNTH: One of the questions I had is -- 18 I 'm just looking at total number cost, the $155, 000, 19 whatever, $442, 000, whatever those numbers are. Does that 20 mean that every single-family home that you ' re going to 21 build is going to be at least that cost? I mean, we ' re 22 just making the assumption that you' re going to lose -- 23 MR. KLAUSING: First of all, we can' t sell them 24 for that . We won' t be able to sell them for that. That ' s 25 how much we ' re losing. If you' re talking to the figure 73 1 that appears by, "Total Cost, " we can' t sell them for 2 that. 3 What we can sell them for under -- under, let ' s 4 say three-person, 38 percent, we can sell Plan Number 1 5 for a $127, 000, could sell Plan Number 3 for a $127, 000 as 6 well. But we, as matter of fact as you look across there, 7 what we can sell them for is almost the same, it doesn' t 8 really change. But -- no. That ' s what we can sell them 9 for, and if you ask if they' re all going to be that price, 10 I can ' t say that, that they' re all going to be that price, 11 because -- let me just give you one example . We would 12 like these purchasers to be able to select some options . . 13 This -- this -- what this tells you is the 14 maximum price that we can sell it for.' That ' s the 15 maximum. We ' d like some of the -- we ' d like them to be 16 able to select some options, and -- 17 MR. BERNTH: I get -- yeah. And I don' t mean to 18 interrupt . My question is you have three plans of homes 19 you ' re going to build, single-family homes, is that 20 correct? 21 MR. KLAUSING: Sure. 22 MR. BERNTH: At those different prices . So 23 you' re, at minimum, going to take a beating on each one? 24 MR. KLAUSING: Absolutely. 25 MR. BERNTH: Okay. How do you make that up? Do 74 1 you just stiff everybody else, or -- I mean. And not 2 being sarcastic, but how do you make that kind of downfall 3 up on the other -- however many houses you' re building -- 4 190 . 5 MR. KLAUSING: Well-- well -- you know, I 'm sure 6 that some of the people wish that they had looked at this 7 three or four years ago, you know, and started running 8 numbers, and so forth, because it is, to be honest with 9 you, a real serious concern for us . We have taken to 10 saying that on the affordable project here, we ' re building 11 them for practice. You know, we ' re not going to make any 12 money. What we have to do in -- and, to be honest with 13 you, this is how every other affordable project that we' re 14 aware of is done, and that is that somebody else pays . 15 Someone else is going to have to pay. Some of those costs 16 are going to get shifted. 17 I will point one thing, and that is that the 18 city is, in a real sense, our partner in this . And this 19 is a project that we all want to see succeed, and in the 20 code there are provisions for the city doing certain 21 things . We haven' t asked for any of these things at this 22 time, but, for example, there are some provision to defer 23 the payment of fees . 24 And, if there are some construction or 25 development things, that we might want to propose that 75 . 1 provided that they don' t impact anything like health or 2 safety, you know, the city has the authority, if they want 3 to, to consider them for the potential use on other 4 projects to promote affordable housing. And we ' ll 5 probably look at those, but we haven' t asked the city for 6 anything at this time. 7 We ' re prepared for go ahead without any of those 8 things that can be worked out, you know, but that ' s sort 9 of the city' s partnership part in this, you know, is to 10 look at some things, you know, to help us out. But, to 11 answer your question, absolutely, the other product has to 12 pay for it . 13 MR. BERNTH: But aren' t you at a huge 14 competitive disadvantage, because, even using Jerry' s 15 numbers, excuse me, conservative numbers -- 200 homes 16 that, let ' s say, you ' re going to build an addition to the 17 affordable housing component. Those 200 home have to cost 18 at least $5, 000 more. Aren' t you at a competitive 19 disadvantage when you' re going against U S Homes, or 20 whatever, building the exact same product? 21 MR. KLAUSING: Well, initially, I would say 22 initially to you, yes, we are. On the other hand, I would 23 also say to you that -- our new name is KB Home by the way 24 -- KB Home is the largest home builder in the country. We . 25 are in Fort Collins for the long haul . We have a 76 1 commitment here that ' s going to keep us here for a long 2 time. We' re going to do whatever it takes to make this 3 project work. 4 And are we happy that we' re just going to build 5 these for practice? No, we' re not . We ' re just have to 6 find ways to make this a better deal for us. 7 And, you know, it' s a wonderful piece of 8 property, and, to be honest with you, it ' s a great 9 opportunity, you know, to be active in Fort Collins . We 10 like this market . You know, we enjoy building here. 11 We ' ll have to take our lumps . 12 And, you know, if it means that, you know, that 13 we swallow some profit on the rest of the units, we' ll 14 have to do that . If it means that we 'find some innovative 15 ways to market them up, you know, the other product, 16 we' ll certainly try to do that as well . Thank you for 17 being sensitive to our plight . 18 MR. BERNTH: And I ' ll just thank you for doing 19 that because, obviously, the economics is not part of the 20 Planning and Zoning Board' s purview, but mainly out of 21 curiosity. Thank you. 22 MR. KLAUSING: Thank you for inquiring. 23 MS CARPENTER: Aren' t there some Federal tax 24 credits for affordable housing that you might qualify for 25 in this? 77 1 MR. KLAUSING: You know, there are some Federal 2 tax credit programs, but what you have to basically have 3 to do is you have to get tax credits from entities which 4 have collected those tax credits and can' t use them. And 5 then you can get -- you can get special financing. And 6 basically what that does is it -- it enables you to reduce 7 you equity in the project . That ' s the long story of how 8 that works . 9 But because of the size of our company we didn' t 10 usually find it advantageous to do that . We are still 11 able to finance, internally, these things, and it ' s not 12 usually a good idea. We ' ll have enough problem -- as a 13 matter of fact, we have our own mortgage company, so, you 14 know, we ' ll be challenged to mortgage these units as it 15 is . 16 MR. GAVALDON: Any other questions? Go ahead, 17 Mike. 18 MR. TORGERSON: What ' s the lot costs for the 19 lots that aren' t affordable, roughly? 20 MR. KLAUSING: You mean -- which of these 21 figures are you taking about? 22 MR. TORGERSON: The $70, 000 . That seems awfully 23 high for an attached product. 24 MR. KLAUSING: Well -- one of the things -- with 25 an attached product you still have lots -- you still have 78 1 to do all of the service connections and so forth. I 2 can' t tell you, you know -- we basically -- here' s what we 3 did -- we basically calculated this based on -- on the 4 costs for the entire project. 5 MR. TORGERSON: That ' s what I 'm concerned about . 6 MR. KLAUSING: Right. 7 MR. TORGERSON: An attached lot wouldn' t bear 8 the same cost as a detached lot on the market, but the 9 total costs -- 10 MR. KLAUSING: We ' re going to try to -- we ' re 11 going to try to reduce those costs . Absolutely. We ' ll 12 try to reduce those costs, but that means -- that means 13 that the rest of this project is bearing those costs . We 14 still have -- we still have a unit to 'sell . We still have 15 one unit to sell. It ' s the only way we can make it up is 16 on the sale of that unit. 17 MR. TORGERSON. Right . But if you take your 18 overall development costs and divide it by the number of 19 units in the project, that would make your attached 20 product artificially costly, because that wouldn' t 21 normally be done in a market-based -- 22 MR. KLAUSING: This -- 23 MR. TORGERSON: -- if you were trying to market 24 your attached lots, you wouldn' t try to market them the 25 same price as the detached lots . 79 1 MR. KLAUSING: We -- we -- we -- we probably • 2 couldn' t be able to, you' re right. 3 MR. TORGERSON: Right . But in this example we 4 have an attached product lot for $70, 000, and I ' ve never 5 seen anything like that on the market . It ' s typically 6 half that . And I think the reason it ' s that high is 7 because -- you' ve just said, we took the total number of 8 units and divided our development costs by that . So it 9 seems that this is artificially high. 10 MR. KLAUSING: Well, it is -- those are still 11 the costs that have to be associated to that unit . It may 12 mean that we -- and we will have to. That ' s the only way 13 we can make this work, is allocate more costs to other -- 14 to other lots . You' re right . 15 MR. TORGERSON: So it ' s disingenuous to present 16 it this way. What ' s interesting is -- I see a lot of 17 proformas because of the line of work I 'm in -- and it ' s 18 interesting how different the proformas that are presented 19 to banks versus cities are. And it involves things like 20 this, shifting the lot costs around and that sort of 21 thing. 22 If you were going to a bank and you were saying 23 I ' d like to develop this project and you said I 'm taking 24 my total number of units and dividing that into my total • 25 costs, they'd laugh at you because that wouldn' t be how 80 1 you would actually function in the market. 2 MR. KLAUSING: If we actually did this on a 3 per-acre basis, though, it would be higher over on that 4 side, on the side of the affordable units . 5 MR. TORGERSON: Right. But your cost per lot 6 wouldn' t be higher. 7 MR. KLAUSING: Well, you' re right. We ' re going 8 to have to reduce the cost per lot . You know, I don' t 9 know how -- how far we' re going to have to go to, but you 10 can see that, even at -- there is a loss of each unit here 11 of around $20, 000 . 12 MR. TORGERSON: Uh-huh. If you assume -- 13 MR. KLAUSING: Even at -- even at 38 percent, 14 there ' s a loss of at least $20, 000, or roughly $20, 000, 15 for each of these. 16 MR. TORGERSON: But that only -- 17 MR. KLAUSING: So, even if you reduce the costs 18 $20, 000 -- 19 MR. TORGERSON: Right. 20 MR. KLAUSING: -- we' re still at a break-even 21 point, with no profit, we ' re at a break-even point with 38 22 percent, even if we reduce it by $20, 000 . 23 MR. TORGERSON: It seems like, if you were 24 looking at the market today -- and Dan' s a realtor, he 25 probably knows better than I -- but I haven ' t see any 81 1 attached product lots for $70, 000 sold in Fort Collins . 2 That seems probably double what the market would bear at 3 this point . 4 MR. KLAUSING: I can' t argue with you because I 5 don' t know what they sell for. 6 MR. TORGERSON: Okay. All right. Thank you. 7 MR. GAVALDON: Glen? 8 MR. COLTON: Okay. So I guess your point is 9 this is probably inflated, and maybe the real costs would 10 end up being $40, 000, and then the single family ones are 11 going to have to sell at a hundred, or something, to be 12 able to -- • 13 MR. TORGERSON: Right . Which is what any 14 contractor would do if they were devel'oping something. 15 What I 'm saying is, the proforma we ' ve been presented 16 probably isn' t very accurate. I doesn' t -- it seems that 17 the lot cost was inflated in order to make that situation 18 look worse for them. 19 MR. COLTON: So if they allocated the costs in a 20 more appropriate manner, it would make them look like they 21 at least broke even or maybe make a little money. 22 MR. TORGERSON: Right. I 'm not sure of the 23 exact economics, but it seems like it ' s clearly inflated. 24 MR. GAVALDON: Okay. Thank you very much. Any 25 other Board questions, or are we getting ready for a 82 1 motion, or more discussion? 2 MR. ECKMAN: Mr. Chairman? 3 MR. GAVALDON: Yes, sir. 4 MR. ECKMAN: I just wanted to go through the 5 variance procedures a little bit, and I wouldn't -- if it 6 weren' t for the fact it ' s a quarter to 9 : 00, if it were a 7 quarter to 12 : 00 I ' d probably have a different view -- 8 but, with regard to Mr. Evans ' concern that he hadn' t had 9 time to prepare to address this variance. I did give him 10 a copy of the proforma -- oh, gosh, probably a little 11 short of a half hour ago now, so we 've had a chance to 12 look at that proforma and we 've heard a lot of discussion 13 about it . Wouldn' t want to leave this meeting without at 14 least inviting him to, tonight, to address these things 15 since he was concerned about that. And I think that he is 16 familiar with the variance procedures . I thought, though, 17 that it might be good just to go over those briefly with 18 you. And the reason I think he' s familiar, is because on 19 the preliminary we had, I think, a solar variance which 20 became an issue in his appeal -- 21 MR. GAVALDON: Uh-huh. 22 MR. ECKMAN: -- and he demonstrated through his 23 appeal that he was quite familiar with the variance 24 procedures, but I did want to touch on them again. 25 MR. GAVALDON: Okay. 83 1 MR. ECKMAN: That issue may have even gone into 2 his litigation later. I can' t recall, because I didn' t 3 handle the litigation. 4 But the Board can grant variances . You need to 5 determine that the granting of the variance would neither 6 be detrimental to the public good, nor impair the intent 7 and purposes of this section of the Land Development 8 Guidance System. 9 Then there are four different demonstrations 10 that an applicant can make to get a variance . And it is 11 the fourth one, that the applicant has chosen. So they 12 have -- they are required to demonstrate that the granting • 13 of the variance from the strict application of any 14 provision of the LDGS would result in benefit 15 to the city by reason of the fact that the proposed 16 project would help satisfy a defined community need such 17 as affordable housing. Affordable housing is a -- is a 18 legitimate, defined community need. 19 And they have to show that the strict 20 application of such provision would render the project 21 practically infeasible, which is what proforma was 22 designed to do. 23 So those are the criteria, and if you were 24 inclined -- if Mr. Evans were inclined to desire to speak • 25 to you about that tonight, I think we ought to give him 84 1 that opportunity. If he feels he' s not prepared, and 2 doesn't want to that ' s fine too, but I thought we ought to 3 at least give him that opportunity before -- before you 4 decide this matter, if you' re inclined to decide it 5 tonight . 6 MR. GAVALDON: Okay. Mr. Evans, would you like 7 a few moments to discuss on the variance segment, sir? 8 MR. EVANS: Thank you, Paul . I appreciate that. 9 I don' t know what I can possibly add to that. I 've heard 10 some -- a demonstration of the variance of issues that we 11 would have forward. In the analysis of the proforma that 12 we 've seen, we 've seen it 15, 20 minutes . Contractual 13 hardship or economic hardship in and of itself is not a 14 basis for the P&Z Board to grant a variance. Just because 15 somebody doesn' t -- and I ' ll use the crass terms -- 16 doesn' t do their homework over a period of time, I don' t 17 care if it ' s two weeks or two years, doesn' t legitimize in 18 the future a granting of a variance. 19 Unfortunately, if the scenario, as the applicant 20 paints it, is true to their costs, and if we assume the 21 proforma, as presented, presents the legitimate financial 22 spectrum of what they' ve got to look to -- well, 23 unfortunately, it ' s not, you know, a basis, it ' s not a 24 foundation for which the variance provisions under the 25 LDGS were constructed. 85 1 A bad business deal put together by that • 2 applicant is a bad business deal put together by the 3 applicant. And it ' s not in the purview, I don' t believe, 4 of the P&Z Board to rectify the consequences of that 5 circumstance. 6 I can' t do any more justice to the applicant ' s 7 request for a variance because we haven' t had the 8 opportunity really to thoroughly go through the dynamics 9 of it, see how the LDGS is being impacted, look at the 10 agreements that this is predicated upon, and do some real 11 formal evaluations . So other than giving it that broad 12 overview of why I feel it ' s beyond the scope of the P&Z to 13 grant predicated on strictly financial, economic basis, 14 I ' d reserve, you know, our, I guess, presentations if the 15 Board would be so inclined to continue this matter to a 16 future date. 17 MR. GAVALDON: Okay. Thank you, Mr. Evans. 18 MR. EVANS : Thank you. 19 MR. GAVALDON: Thank you very much. Okay. We 20 have some options . There ' s an option to continue. 21 There ' s an option to approve or not approve the variance. 22 And there ' s the option of the project. So that ' s what it 23 comes down to. Paul, is that what you see as some options 24 we have? 25 MR. ECKMAN: I 'm sorry. I was -- 86 1 MR. GAVALDON: I was throwing out some ideas as 2 to how to put together a motion. We can continue this to 3 look more into the variance. Two, we can support the 4 variance or not the variance, and then treat the project 5 separately, independently, of the variance. 6 MR. ECKMAN: Yes . And you should -- well, 7 obviously, if you' re going to continue it, that ' s the 8 first motion, and it takes care of everything else, but I 9 would ask that you vote on the variance first before you 10 vote on the main project. 11 MR. GAVALDON: Okay. We have guidance here to 12 go with the variance. Any Board member want to bring up a 13 motion, and then we can discuss, or do we need more 14 discussion and questions? Okay. 15 MR. BERNTH: I 'm just going to ask Paul, how to 16 craft a variance, particularly if it ' s a positive variance 17 on that . Could you give us some language to help us out, 18 please? 19 MR. ECKMAN: Well, I think in your motion you 20 need to address the requirements that the Board needs to 21 find. You need to determine -- I ' ll go slowly -- that the 22 granting of the variance would neither be detrimental to 23 the public good, nor impair the intent and purposes of the 24 Land Development Guidance System. That ' s one thing. 25 Then you need to -- moving down to that fourth 87 1 choice -- you need to find that the project would satisfy 2 a defined, community need, being affordable housing. 3 And you need to find that the strict application 4 of this provision -- that ' s the 30-percent rule -- would 5 render the project practically infeasible. 6 That ' s probably the basic question, is that 7 practical infeasibility from what I heard in the 8 discussion. That ' s the most important question. 9 MR. BERNTH: I do have the language here. Thank 10 you, Judy, for helping me out . I would make a motion 11 that -- to grant the requested variance to Point Chart H, 12 Residential Uses, specifically the affordable housing 13 criteria; i . e. , changing it from 30 to 38 percent, would 14 neither be detrimental to the public good, nor impair the 15 intent or purpose of this section; would result in the 16 substantial benefit of the city by reason of the fact that 17 the proposed project would help satisfy defined community 18 need. Obviously, in this case, affordable housing. And 19 that the strict application of such revision would render 20 the project practically infeasible. 21 MS. MEYER: I ' ll second. 22 MR. GAVALDON: Okay. Any board discussion? 23 MR. TORGERSON: I won ' t be supporting the 24 motion. I ran some quick numbers and it looks like -- if . 25 I ran my numbers right . This is all in my head. I don' t 88 1 have a calculator here -- this would result in about an 2 extra $300 per month that these people would have to pay 3 on their mortgage. And that, to me, cuts out a 4 substantial part of the people we' re really targeting, if 5 the -- people who need affordable housing. 6 And that seems to go counter to the detriment, 7 you know, the detrimental to the public good argument . 8 And I don' t -- I wasn' t totally convinced that -- that if 9 we didn' t grant this variance, that it would result in an 10 infeasible project . It seems unlikely to me that Kaufman 11 and Broad didn' t do any economic studies until a week ago, 12 or two weeks ago, since we continued this . I guess it was 13 longer that that . 14 So, I won' t be supporting the motion. 15 MS . CARPENTER: This is a toughy, because, in a 16 lot of ways, I agree with you Mikal. But I guess I 'm 17 looking at this, and if the proforma is anywhere close to 18 right at 30 percent -- well, actually at 38 percent -- I 'm 19 really concerned about the temptation to reduce the 20 quality in this project to make up that loss. I just 21 think that temptation is going to be overwhelming. 22 Forgive me if I 'm having a little trouble buying 23 the corporate developer as benefactor to the city, and 24 that they' re willing to lose that much money. I just -- 25 I 'm having a hard time with that. 89 1 What I really hope we don' t see is this project 2 coming out of the ground, and the quality really being 3 sacrificed, and we end up with a mess down there. 4 But because, to me, with this proforma at 38 5 percent it -- I wouldn' t do it. At 30 percent I would 6 really be worried about what this would look like. So, I 7 guess with that, I ' ll support the motion. 8 MR. GAVALDON: Anyone else? Glen. 9 MR. COLTON: I was just following Mikal ' s line 10 of thinking here, and if that land cost is really closer 11 to 40 instead of 70, that would bring the total cost to 12 about 122 as opposed to the 153 or 155, which still makes 13 it marginal, I guess, unless it ' s a four-person at the 38 14 percent income level . 15 And I wouldn' t really care if they lost money on 16 this or not, but I guess I kind of fall back on the 17 definition of affordable housing being at 38 percent, the 18 number currently. So I guess it seems fair that we could 19 apply that to this project . 20 MR. GAVALDON: Mikal, I really appreciate your 21 numbers, because when I was looking at this, I was looking 22 at the first $70, 000 . I went, "Oh, that ' s awfully high, " 23 and then started looking at where they need to share the 24 costs, and then the data that says it should be lower. If 25 we go less and we do the 30, my fear is -- and I agree 90 1 with Jennifer -- is that we may get less -- we may get -- 2 we may have something built that we would not be happy 3 with if we went with the lower number. 4 And I think KB Homes, you need do a better 5 numbering -- you need to do a better job on your numbers 6 and present this sooner. And -- but we have a process, 7 and a process allows them to bring this forward. Given 8 that, it ' s fair game for us to review and make our 9 discussion on. 10 But I -- I question some issues with it, but I 11 do believe in the community goals and objectives of 12 affordable housing. And I 'm going to go with this one, 13 but we ' ll be looking at it a little seriously to make sure 14 that they meet everything that they say they' re going to 15 do. If they come up with less, we have other processes 16 for that. So that ' s where I 'm going to be at . Anyone 17 else? 18 MS. CARPENTER: I forgot, could we add a 19 friendly amendment to this that makes this contingent on 20 the affordable housing agreement being actually signed? 21 MR. BERNTH: I guess I 'm going to ask -- I don' t 22 know. Who would I ask for that, because wouldn' t that be 23 part of the development agreement that would be required 24 prior to completion? or is that something that we should 25 make -- 91 1 MR. OLT: I 'm going to have to defer to Paul . 2 It sounds like a legal issue to me. 3 MR. ECKMAN: Well, I, first of all don' t know 4 that it would be part of the variance, probably would be 5 more of the main question. But you certainly can make it 6 contingent if you wish. We' ll make it happen. But I have 7 no objection to your making it contingent . And the 8 applicant has already stated tonight in the record that 9 they will sign it, so I have no concern that they 10 wouldn' t . 11 We won ' t sign the development agreement until 12 this thing' s signed. 13 MR. BERNTH: If we can' t trust Paul, who can we 14 trust? 15 SPEAKER: And there ' s also in this document, it 16 defines what an eligible family is and what the units are, 17 and there ' s the 2 to 1 permitting rheostat control that 18 the city has on it too. So, if they don ' t sign this 19 agreement, they might get two units . They won' t get any 20 more, because for every two units they build they have to 21 build an affordable unit . 22 MR. GAVALDON: Okay. I think we ' re ready for a 23 vote. 24 CLERK: Torgerson. 25 MR. TORGERSON: No. 92 1 CLERK: Carpenter. 2 MS. CARPENTER: Yes. 3 CLERK: Meyer. 4 MS. MEYER: Yes. 5 CLERK: Bernth. 6 MR. GAVALDON: Yes . 7 CLERK: Colton. 8 MR. COLTON: Yes . 9 CLERK: Gavaldon. 10 MR. GAVALDON: Yes . Okay. The variance passes . 11 We' re ready for the main motion. Everyone ready? 12 MR. BERNTH: I would recommend approval of 13 Provincetowne PUD, Filing 2, File Number 73-82U, with the 14 following conditions -- would you like me to read that? 15 16 MR. ECKMAN: Can we just refer to "that lengthy 17 condition"? 18 MR. BERNTH: I will refer to that lengthy two 19 paragraphs on our last -- I guess that would be Page 5 and 20 6 of the staff report. 21 MR. COLTON: I second. 22 MR. GAVALDON: Okay. Motion for moving and 23 seconded. Do we have any Board discussion? Okay. May we 24 have a vote? 25 CLERK: Carpenter. 93 1 MS . CARPENTER: Yes . 2 CLERK: Meyer. 3 MS. MEYER: Yes . 4 CLERK: Bernth. 5 MR. BERNTH: Yes . 6 CLERK: Colton. 7 MR. COLTON: Yes. 8 CLERK: Torgerson. 9 MR. TORGERSON: Yes . 10 CLERK: Gavaldon. 11 MR. GAVALDON: Yes . Okay. That concludes our 12 -- motion passes . That concludes our discussion agenda. 13 Do we have any other business, Cameron? 14 MR. GLOSS: No, we don' t . 15 MR. GAVALDON: Okay. I just have one, if I can. 16 Cameron, do we have enough topics for our upcoming work 17 sessions? 18 MR. GLOSS : I 'm not familiar with the question. 19 Could you repeat the question? 20 MR. GAVALDON: Do we have enough work topics to 21 cover -- 22 MR. GLOSS : Oh, work topics . I 'm sorry. I 23 didn' t hear you. Yes, we do. We have plenty. I can 24 think of several that we 've already got projected for the 25 next three to four months . 94 1 MR. GAVALDON: Okay. Judy? 2 CLERK: When' s our next meeting? 3 MR. GAVALDON: What? Our next meeting? 4 MR. GLOSS: It ' s coming up on the 1st, February 5 1st. And then we have another one on the 15th. 6 CLERK: So we get two meetings in February? 7 MR. GLOSS: Yes, we do, and relatively full 8 agendas . 9 MR. GAVALDON: Cameron, in the interest of time, 10 if it ' s okay with the Board, I 'd like to go over some 11 degree of time management . If we can keep the topics --if 12 we can have an idea of what times we need for each of the 13 topics will be so we can kind of flow through them. And, 14 two, we can give ample time for discussion and consent 15 agenda, so that way we won' t get bogged down and rush at 16 the end. 17 MR. GLOSS: I 'm solidly behind you. 18 MR. GAVALDON: So we can ask for times and we 19 can work towards a time. That way we can move smoothly 20 without rushing. 21 MR. GLOSS : Okay. I 'd like to talk to you about 22 that before the next work session. 23 MR. GAVALDON: Okay. Can do. Meeting' s 24 adjourned everyone. 25 (Meeting concludes 8 : 45 p.m. ) 1 STATE OF COLORADO ) 2 ) TRANSCRIBER' S CERTIFICATE 3 COUNTY OF LARIMER ) 4 I, Marcela T. Losh, a Shorthand Reporter and Notary 5 Public, State of Colorado, hereby certify that the foregoing 6 proceedings, taken in the matter of the application by 7 Provincetowne PUD, Second Filing, Final Plan, and recorded 8 on Thursday, January 18, 2001, at 300 West Laporte Street, 9 Fort Collins, Colorado, was duly transcribed by me and 10 reduced under my supervision to the foregoing 66 pages; that 11 said transcript is an accurate and complete record of the 12 proceedings so taken. 13 I further certify that I am not related to, employed • 14 by, nor of counsel to any of the parties or attorneys herein 15 nor otherwise interested in the outcome of the case. 16 Attested to by me this 23rd day of February, 2001 . 17 18 - 19 •••awwN,,, .C _ _ ��•�•` ?'<O�i�� Marcela T. Losh, 20 = OTC Sy Meadors Court R porting, LLC 140 West Oak Street, Suite 266 21 N = Fort Collins, Colorado 80524 'a pUBIL Off: CO-1 (970) 482-1506 22 ''�'9 �F . � My commission expires January 3, 2005 . 23 ��Nnu�•�• 24 25 • 1 ITEM NO. 5 MEETING DATE 1/18/01 STAFF Steve Olt City of Fort Collins PLANNING AND ZONING BOARD STAFF REPORT PROJECT: Provincetowne PUD, Filing Two - Final - #73-82U APPLICANT: Downing, Thorpe & James, Inc. c/o Rick Volpe 1881 Ninth Street, Suite 103 Boulder, CO. 80302 OWNER: City of Fort Collins P.O. Box 580 Fort Collins, CO. 80522-0580 PROJECT DESCRIPTION: This is a request for final planned unit development (PUD) approval for 331 residential dwelling units (190 single family lots and 141 multi-family units) on 70.0 acres, located on the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South College Avenue, north of County Road 32, and zoned LMN - Low Density Mixed Use Neighborhood. This is a qualified Affordable Housing project. RECOMMENDATION: Approval with a condition EXECUTIVE SUMMARY: This request for final PUD approval: * Is in conformance with the approved Provincetowne PUD, Filing Two - Preliminary; Meets the applicable All Development Criteria of the Land Development Guidance System (LDGS). COMMUNITY PLANNING AND ENVIRONMENTAL SERVICES 281 N.College Ave. F.O.Box 580 Fort Collins,CO 80522-0580 (970)221-6750 PLANNING DEPARTMENT Provincetowne P.U.D., Filing Two— Final, #73-82U January 18, 2001 P & Z Meeting Page 2 COMMENTS: 1. Background: The surrounding zoning and land uses are as follows: N: E, RL : existing City facility and single family residential (City Transfort Service Center, Brittany Knolls PUD) S: LMN, POL: future filings of the Provincetowne PUD and City- owned property E: RL, LMN, LIE: vacant land, existing single family and multi-family residential, and church (Eagle Tree, Stanton Creek, Redeemer Lutheran Church) W: LMN, POL, FA1 in Larimer County: vacant land, future filings of the Provincetowne PUD, and City-owned property The subject property was annexed into the City as part of the Halycon Annexation in December, 1980. The subject property was part of the original Provincetowne 'PUD Master Plan that was approved by the Planning and Zoning Board in November, 1982 for single family and multi- family residential, commercial, park, and industrial uses on 410 acres. The subject property was part of the Amendment to the Provincetowne ODP that was approved by the Planning and Zoning Board on October 26, 1987 for single family and multi-family residential, church, business service, neighborhood and regional shopping, and recreational uses on 426 acres. The Planning and Zoning Board approved the Redeemer Lutheran PUD on April 27, 1992 for a church facility on 5.0 acres. This site, although part of the Amendment to the Provincetowne ODP, is not part of the current development request. The Planning and Zoning Board approved the Second Amendment to the Provincetowne ODP on September 27, 1993 for the purpose of allowing multi-family residential on a portion of Tract B, previously approved for single family residential. This approval changed 7.64 acres (located at the southwest corner of South Lemay Avenue and Trilby Road) of the overall 30.14 acre Tract B from a single family to multi-family use. The Planning and Zoning Board approved the Provincetowne PUD, Filing One on October 25, 1993 for 93 single family lots on 50.34 acres. This site, although part of the Second Amendment to the Provincetowne ODP, is not part of the current development request. . Provincetowne P.U.D., Filing Two — Final, #73-82U January 18, 2001 P & Z Meeting Page 3 The Planning and Zoning Board approved the Eagle Tree Condominiums PUD on August 26, 1996 for 92 multi-family dwelling units on 7.64 acres. This site, although part of the Second Amendment to the Provincetowne ODP, is not part of the current development request. The subject property is part of the Provincetowne Amended ODP that was approved by the Planning and Zoning Board on December 16, 1996 for single family and multi-family residential, neighborhood commercial, and neighborhood parks and open space uses on 160.0 acres. The Board placed a limit of 955 residential dwelling units on the 160 acres, with a maximum residential density of 5.97 dwelling units per acre, on their approval. City Council upheld this decision at their public hearing on February 25, 1997. The Planning and Zoning Board approved the Provincetowne PUD, Filing Two — Preliminary on August 5, 1999 for 331 residential dwelling units (190 single family lots and 141 multi-family units) on 70.0 acres. This decision was appealed to City Council, which upheld the Board's decision at a public hearing on October 5, 1999. 2. Land Use: This is a request for final PUD approval for 331 residential dwelling units (190 single family lots and 141 multi-family units) on 70.0 acres, located on the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South College Avenue, and north of County Road 32. The proposed gross residential density is 4.73 dwelling units per acre. The request is in conformance with the approved Provincetowne PUD, Filing Two — Preliminary. It was evaluated against and meets the applicable All Development Criteria in the LDGS. This is a qualified Affordable Housing project, based on the 141 multi-family units at the northwest corner of the project. 3. Design: Architecture: The multi-family buildings will be 3-plex, 4-plex, 5-plex, and 6-plex structures up to 29' in height. They will contain a mix of 2-bedroom and 3-bedroom dwelling units. They will be constructed of a combination of wood lap siding and brick or stone as masonry accent along portions of the building foundations. The roofing will be dimensional asphalt shingles. Provincetowne P.U.D., Filing Two — Final, #73-82U January 18, 2001 P & Z Meeting Page 4 Landscaping: Street trees are being provided at a 40' spacing throughout the development. There is a mix of shade, ornamental, and evergreen trees in the common open areas and detention areas that will be installed by the developer and maintained by the Homeowner's Association. The landscaping in the multi-family portion of the development, in Parcel H, will consist of deciduous, ornamental, and evergreen trees; deciduous and evergreen shrubs; and, ornamental grasses and perennial flowers. There will be trees and shrubs in the surface parking areas to meet the interior landscaping requirements and provide adequate screening from streets. There will be deciduous and evergreen shrubs as foundation plantings around the multi-family buildings. Landscaping in the multi-family area will be installed by the developer and maintained by the Homeowner's Association. Parking: All single family lots in Parcels D, F2, F3, G1, and G2 will provide for their off-street parking requirements in driveways and garages on each lot. The multi-family units in Parcel H will provide for their parking requirements with small surface parking lots and parallel parking along the private drives, local streets, and connector streets along and within this phase of development. A total of 271 parking spaces are needed for the mix of 2-bedroom and 3-bedroom multi-family units and the applicant is providing 272 spaces. 4. Neighborhood Compatibility: There were two neighborhood meetings held for this development proposal (March 17, 1997 and December 9, 1998) prior to the Planning and Zoning Board public hearing and decision on the preliminary PUD. Since the Board approved the preliminary PUD and City Council upheld an appeal of their decision, and since the final PUD is in conformance with the preliminary PUD, no additional neighborhood meetings have been held regarding this development proposal. 5. Transportation: This development will gain its primary access from Trilby Road via the proposed Provincetowne Drive (a collector/connector street) and from South Lemay Avenue via the existing Province Road (a collector/connector street). There will be 3 secondary access streets from the existing Brittany Drive along the northeasterly boundary of this proposed Provincetowne P.U.D., Filing Two — Final, #73-821.1 January 18, 2001 P & Z Meeting Page 5 development, adjacent to the Eagle Tree single family residential development and the Reedemer Lutheran Church. FINDINGS OF FACT/CONCLUSIONS: In evaluating the request for the Provincetowne PUD, Filing Two - Final, staff makes the following findings of fact: It is in conformance with the approved Provincetowne PUD, Filing Two - Preliminary. It meets the applicable All Development Criteria of the LDGS. RECOMMENDATION: Staff is recommending approval of Provincetowne PUD, Filing Two - Final - #73-82U, with the following condition: 1. The Planning and Zoning Board approves this planned unit development final plan upon the condition that the development agreement, final utility plans, and final PUD plans for the planned unit development be negotiated between the developer and City staff and executed by the developer prior to the second monthly meeting (February 15, 2001) of the Planning and Zoning Board following the meeting at which this planned unit development final plan was conditionally approved; or, if not so executed, that the developer or the City staff, at said subsequent monthly meeting, apply to the Board for an extension of time. The Board shall not grant any such extension of time unless it shall first find that there exists with respect to said planned unit development final plan certain specific unique and extraordinary circumstances which require the granting of the extension in order to prevent exceptional and unique hardship upon the owner or developer of such property and provided that such extension can be granted without substantial detriment to the public good. If the staff and the developer disagree over the provisions to be included in the development agreement, the developer may present such dispute to the Board for resolution. The Board may table any such decision, until both the staff and the developer have had reasonable time to present sufficient information to the Board to enable it to make its decision. (If the Board elects to table the decision, it shall also, as necessary, extend the term of this . condition until the date such decision is made.) Provincetowne PUD, Filing Two — Final -#73-82U December 7, 2000 P & Z Meeting Page 6 If this condition is not met within the time established herein (or as extended, as applicable), then the final approval of this planned unit development shall become null and void and of no effect. The date of final approval for this planned unit development shall be deemed to be the data that the condition is met, for purposes of determining the vesting of rights. For purposes of calculating the running of time for the filing of an appeal pursuant to Chapter 2, Article II, Division 3, of the City Code, the "final decision" of the Board shall be deemed to have been made at the time of this conditional approval; however, in the event that a dispute is presented to the Board for resolution regarding provisions to be included in the development agreement, the running of time for the filing of an appeal of such "final decision" shall be counted from the date of the Board's decision resolving such dispute. �I�� i� �.i i■n�J41 ��fir■ ri l►��►j� �■\�` 041 ME Nis m MEN mill Irouri : :' ��• ► �� ■��'r��l� � 111111 I '� n„�i �U ■nN■■■■■ u■■■ p \. mill. \�..• ■ w.unwu moomItems . j Activity A: ALL DEVELOPMENT CRITERIA ALL CRITERIA I APPL.ICAELSCRITERIA ONLY is the G.2en4i YWi the=efw4 iepliCae�!? tM awrw? • g; Yes INo If ne, please exclain CRITERION r f A1. C0MIv1UNITY-WIDE CRITERIA I I 1.1 Solar Orientation f 1 1 I I V 1.2 Canorehensive Plan 1.3 Wildlife Habitat 1.4 Mineral Depcsii 1.5 Ecciccicelly Sensitive Areas I r"- rved I I I 1.6 Lands cf Agricultural Inoerance I reserfea I I I 1.7 Energy Conservation I I I I I I 1.8 P.ir Quality I I I I • 1.9 water Quality I I I I I .0 Sewace ane Wastes 1 11 Water n rv- I I ( I 1.12 ResideniialDensity ?• NE!GHEORHOOD COMPATIE11-1 i CR172=tl-1 21 Venicuiar. Peca-stran. Eike Tra_nsocratien I I I I I 2 2 Eui!cinc P!ac_nent and Orienta_ticr, I i I I 2 = Natural Features I I I I Venicul2r Circulation anc P=rkirc 79 Energenc/ Access e recestnan Cic latton I IXI I I I 2.8 wilding Heic_nt and Views I I I 2.S : Shading 2.10 Sclar Access I 1 1 I I 2 „ Hisibnc Reseur s I I 1 I I 2.12 IS etbacks 2.13 L andscaoe I I I I I 2.14 Sicns 2.15 Site Lighting I 1 1 I I 2.16 Ncise and Vibration 2.17 Glare or Heat 2.18 Hazardous Materials I 1 A 3. ENGINEERING CRITERIA 3.1 Utility Capacity I I 3.2 Design Standards 3.3 water Hazards 3.4 Geologic Hazards 1 Land Development Guidance System for Planned Unit Developments The City of Fort Collins,Colorado.Revised 94 .61 . `„ "J s � � Final Site Plans for PROVINCETOWNE P.U.D. FILING 2 City of Fort Collins, Colorado KEY MAP ^�• •GENERAL DEVELOPMENT OVERALL LAND i PHASING SCHEDULE USE SUMMARY r i ...r aa.i• I. �� r., � ERY MAP Y.... . mr PARCEL R Phaae I � w VICINITY MAP _, . .._..__. .. ,.. . PARCEL Fz SHEET INDEX Phue 4 SHEET COVERSEEEI PPb C 61S Sf�.CT2 OVERALL SITE PLAN SHEET3 FINAL PLAN:PARCEL aa: SEEEr4 FINAL PLAN:PARCEL.D SIFT 5 FINAL PLAN:PARCELS F2 SEAT 6 FINAL PLAN:PARCELS F3 PARCEL D SFEET 7 FINAL PLAN:PARCELS 01&02 Phase P SHEETS FINAL PLAN:PARCELS 01&02 nmsr an _ SMM 9 FINAL PLAN:PARCELS 01&02 SHEET 10 FINAL PLAN:PARCEL S SBEEr 11 PLANS&DETAILS ISSUE DATE: I-W 00 RBVMM I)AM 7-=4 RRVISIM DAM 10-18- RSVIaONDA1&to-tsao PROJECT SITE I �m.��e srsrsrr^-4 �mr '� oa�tmm i [tAUFMANOBROAD Ewe ` sn�usrmi.Y¢wAwn:c eune.n �_ 'lii ^aum.onna.00 eom ®..wa.:ate® 6'iE�- ':� DowNuac PARCEL H pppj ` /� iwr� THORPE JANIES 1 PARCEL O �, �pD2.�OVIIDMY I Fz. �� WW PARCELF2 yr ar OT A PART OF THIS FINAL PLAT) PARCEL D PARCEL F3 ""!V�—/ -777 OVERALL LAND a USE SUMMARY 46. •::•••••^- °01�"'n APPLICANT: on.r.swrtou —`"•""'"'"""�'• OT A PART OF ..+..,.....,.... FINAL PLAT) I OPENSPACE 1 �m� { ... Ovml.L.SURPLAN z of i i i • i m 11\ PARCEL D- \ 1 STOP SIGN •O' \ Ali, 1 INTERSECTION NTED TYP. u ws.ni n"� \ \ 1 GUEST PARKING INTERSECTION ( ) ..►►. / 1 DOWNM (TYP') (See 6n81neerinK -"--CROSSWALK � u.e...r.awvwo ww.m r.a P""" \ _ Dr.win`e _ / \\ ✓1 1 \COMMON OPEN SPACE/ ► _ ��r s..u.w�m \LANDSCAPED ISLAND OAD ►.► n m oV,N�E..�... 1.., eF-Cx,:.�S; .w►....r.....�...v_.. _ W`e NATCH��E.(iE�SE►,f ` _RIRkbF-E 1 z ,1 r k .0 a�'r1�F wiaF Fp�imim mom° v�`.w..""'u �r -- o01Cb xi PROVINCE ROAD OUTLOT E __� a re....n rime ' x" a..►. •n % m 111 IF 1r► mm.usls NIDDLOCK CROSSWALK (See E.Cine.H.[ Or.wi.A.) 4.5' DETACHED SIDEI/ALK \\ 1! 1 m 1'1 •^ ,'�.� t -�—"" I I KITH �.rm� ^�^•w• Ar TREELAKN r \A\ r 111 •m•""•II II I 1 •,• �• I 1 —• ...n w,ias r •ueus �i1 N r sl'I Im um euneo.moue ,� 37.N COMMON OPEN SPACE/ m SADDLEBBpOK LANE F _ LANDSCAPED ISLAND � � r —x nR L, a Pe�un r NT D ANCB FUTURE TRAIL • ( EASEMEN (TIT' �m ,�_ a r,�►1°"' �� ,�1 CONNECTION PARCEL BOUNDARY �{! FOOTPATH FO TPA E OUTLO E o J ... m►nee•'..e m ourLoi F wu.amFnm..uw..r: !! LOT MEETING 'A `. ,•` ♦ ^ .�' .rrw.e •.w.oAPPUCAN ': SOLAR ORIENTATION � ♦ m Iwerdx�emlo REQUIREMENTS (TYP.) OUTLOT E MIDBLOCK .n. nAll COMM CROSSWALK SPACE�� .\ e.1w>.•) a.. wa.• �.�'u'+ L 'FU7\,-• TRAIL \\ `\ va.�►man m.we.ee►. ' n.m.. .. \ \ P.n �� ®vm aa..0 1.n m.e m,•I MLL 9R IIAX i� "' 3oF 11 PARCEL D KEY '® FINAL SITE PLAN _�e� GUEST PARKING COMMON OPEN SPACE/ PARCEL D STOP SIGN (TYP.) LANDSCAPE ISLAND �/ p --� PROPOS4 ..v. ( ) PROVINCE ROAD Iwusnoxl WALK EXISTING' a}' OUT OT _ WALK u..i.n THOM _ � � us�..r v.r i m.rr.e r ernn�a JAMES OPEN BPACE AREA OPM(PAR mPM ANI SPAC AREA rtMNW CITYANI) NArw euc DEPT.) ' ,•r�•r.s�••ws•�• w.r"' w L•••�'�•n""•r:fin... °S>a' I+ G •.( w ')�� -a ��-- — sDx I f 3 raa....�..w w�r.ir w (1 czi �.•,�', a) �.� v. _� v, a '3 —•—_ Ia s w � I K • ru �gr�r.'a.r..raa Ia awe r..wr r.arm Z _}— EST v�ewixwairsns.e A LINE . —�'u"'rw s�i.ry..n7. ►� [NE �• Ili � � ..rn�ORpOK r.wW o .R Ip*^., f'pDO •� \ ?\ � I b10.avw..ur.r..w...c v b COMMON I x� vs�sao'xw u'v�arrrra'r a SPACE f — ema.uoae rumor rdxn .a.w..v r•..rr QI OUTLOT F f ® � armro.m�..r+n • rns.rw.r �•* , tpei��rr�.Yl .ee.rs.wv UTLOT CURB RAMPS AT PARCEL""II APPUCAfr... ALL INTERSECTIONS BOUNDMRY ®wr..�..w.r _r— ,� (TYP.) i ,e®.a mrr xou.ommv wm.m: er�rSR�Pauo � LOT MEETINGwr— SOLAR ORIENTATION r 8' CONCRETE REQUIREMENTS (TYP.) I FOOTPATH n.r• I ay.,. ,r .. .. ( SIGHT DISTANCE t EASEMENT (TYP.) v r t MIDBLOCK nm E� ) CROSSWALK r.r \\\ 00' TEMPORARY MAP rm. �— . \ \ TURNAROUND .w-r 40P 11 u ,:". PARCEL D�a. FINAL SITE PLAN • "�° "`"° PARCEL F2 — � nowrmac THORPE ,:mar••�.emi. .sn r.�. a w.. ® Y�mui. u1 aM amY�rm aaim w Nv.vuoe d��.s.s eia+vl .orr r .r a• -�Y.wtl.mf-in �.' ■A1��' �` . . . _ !u i OS�1 ../\®w e S I) �• a .w � it 4 it � ,w i � �Yw u�a 'r'-•m_ •Y�� I �- � "'44 ./ o / � to �� A I `�'ww"•-"rwss eA•n �.'..w I I ../ �a• I j isr.m..m.m v..�....�. n= m'vuwc uur —,.�Y,.Yl,.Yn w.rrf YIDHLOCE I ;j, ¢`. " n. a ,'°° l s I w®r• �rswRr CROSSWALK I / w "y9�t+� au ¢ �-_"° -_* s"vim--°'�"'�-�•'°'°" ••'• I Gay� _ w, r w. . .a.�..ra.►a,w N I 9 -I I PV _ �y\ Nor, � ,a,..'—t •"u" i ®rvm.s.s r,rem. / •� �, \ s��F � n• r ,. Y§. .w Yews r�u.s.v / / \ , r"t ( y�Ny °„' ""° m Nau rur a.cc.ss urc •z•I,( �,_A ww mw�ae qo�v�..m.su•. / • /'� �'�� irnwrsiia ri�s'.�ei. / ---="` • .��:tea�-�W- a PARCEL BOUNDARY / m // N� �: ".'-'-®.vn"w•'ms .v`-v.'-iroi-"•'- .H C4 �, p• ur....wmm nuwmv SIGHT DISTANCE EAGLE TREE / C '/ �j// O1 \ ya `. SINGLE FAMILY RES. EASEMENT (TYP.) / i ,C ^ PROVINCETOWNE FILING I . '—ir..-.•-•. -..� PARCEL 'E 00? • �.�"�.'�..ar...as O zw 0 F , I N oA P� � ... a. .( COMMON OPEN SPACF� o w +) I 30. _�-_�_ a - � �O•�'••-�-'4 LANDSCAPE F 7- ISLANDS U I FL I I� �i OPEN ON r. p 'I m ."gym.. ADDRESS SIGNAGE _I ^' (, I SPACE !� OR LOTS o v- _s - APPIdCAIV1': `i239 AND 240 .c, am \— \ m.-. MIlYM�lIIG1D (�� I ��! � _ � L w..-�' �,� {#, ¢ 'ems_- ® r I • ��. Ar t I ea ° s.'• isRso, LOT MEETING •�� f 4.5' DETACHED I Ro -- - a W \!, _ SOLAR ORIENTATION •^ i11 I SIDEWALK g a, k REQUIREMENTS (TYP.) yr WITH TREELAWNe, . ' FL s' - ° -' (I ' 4 ' '+' 'P. 'e ADDRESS SIGNAGE ana. FOR LOTS t} ) FUTURE ROAD _ �� -1� 4 AND 242 F INTERSECTION k -"'° (s°°N'•O'°hi••"I __ 2UTL0T C " SFANDARD/PAINT D n n E S r ' n n r' 7PE n 8' CONCRETE wm• vum+�n .{ INTERSECTION MATCHLINE (SEE SHEET 8�_COYNON OPEN FOOTPATH �•'�' CROSSWALK I 42 •r w• M- - SPAC "YYAF �r • mm...•um7 ( '.r TM•.• Ifi r r TT PARCELS F2 5 OF 11 FL In FINAL SITE PLAN ' PARCEL. F3 wolf ur ofmmmrle .f�.mwf�IMl. vv r.n w nc =vrwf v�•W aM.Y. •.s. .�q M.1 f m • m �pwMp )Y C plM T�m �vM�pO fllL MR YI • • ..of YfK 1l�Y IM ilY fAILIiYI f W ��.fY4VIM M.ML'Y.6 MOf NtY• JAMB WN M MiYla YY-.a�. FUTURE ROAD�- I . ._---.....•- -. ti-.^..—i+ms,.�w..a—.faST--...r.+.. .n. n s .. mvv IM AA AAMOT C RIaNQcT EAGLE TREE •"�' •'�'Mvf ,Y,a, INTERSECTION 'M W W M M M M M W M W W SINGLE FAMILY S MATCRUNE (SEE SHEET 187 COMMON. OPEN �•�M.�.fMv. STANDARD/PAINTD . ..��_ -_.,Y,,._ --•;,r. —y SPACE PROVIN`ETOWNERE INTERSECTION ♦z' / ' j CROSSWALK FL r 7 .... r _®r s� a°s°w (AT Mlle I _ W IA .. W . \' wfTaeernPARCEL on) I (tOW l�.m 1z a, ' ' ��(. BOUNDARY • w ��ur� T.M. CURB RAMPS AT I � -- / o w aafwvf•f aafMrmrna. ALL INTERSECTIONS ,. •v1sMiYnrf .M _ �..i" NEAT HER CLE .mf�mmm.�...�MnWe� ayylf.Yim wfu _ NLgA, ,/ \ .'r ..o.n MiM•sa�s ^ ---- E 7 PARCEL �:.w:. „r ::AA ^! F'1 'jam(] / �• \\ M <j \ 9 ° Ymf fRYL MIDBLOCK I o aY CROSSe WALK °i \\ .P` ia�aaaMmafartlm ��y3yi STOP SICN m�°'I�� 'f \\� sfi \ HEATHER CL N !R \�\ W z STANDARD/PAINTED /\ \ y `It ��ff.'�'m� f•M L INTERSECTION CC / _-- CROSSWALKA+� AAA a"v aO^' • b 4T. T MEETING r° \ \ / / -' / 1` .mb�m u SOLAR ORIENTATION °�,� \ \ / I' .,.,,,M r ass v Mm•..v...•u.. REQUIREMENTS (TYP.) V� °•} W J rYY\ �o ,1/ �l r a ��mrrfs vf.lv.f f.W 0 // O j \ �i�. i° 1 J•�'\1° W 1 M ;� MmsruwMmsrr a �!1 / 14, / MIDBLIOCK CROSSWALK CK 1 po .Yw (< I ROVINCE ROADOUTI ' Cw :G"r.rMr.Mr..M APPi.iCANT: TRACT B 7d m g �� (NOT\A PART OF THIS 44.5'R FINAL\ SITE PLAN) SIGHT msT�).—_YIDBLOCK e NT�TANDARD/PAINTED CROSSWALK —AAA CTION (_,..tal°•en n...l.nl 1 �\ OUTLOT I /csossWALK ` �= NEIGHBORHOOD / i `Rye I�'( t PARK SITE !S (PLATTED ONLY DESIGN // ° •// ! �� III r NOT PART OF THESE PLANS) / Q, 1 yw l .vll.�e n.n �c — /i / Imr V OF 11 I n PARCELS 9L SITE PLAN PARCELS G1&G2 DOVNM COMMON OPEN SPACETHOM LANDSCAPE ISLANDS .oxen .. =:=.:1 \ /1 Ir•�'V� +"jtw T mmm use. SIGHT DISTANCE _ JAMES • " !J EASEMENT (TYP.) •ss•• �.r•[[r .°8'S1v, .�... C I+ 'Q �'IO YO • �W PA minus BATTSFORD CIRCLE aamo.aolw COYI11 OPEN SPACE— amm mmru aaonox ae[awnor em ouaun OUTLOT D COMMON OPEN SPACE/ S' xv I LANDSCAPE ISLANDS lesm[^ k -,u xe asm x s x awv in s[xls • w®aa.vx.-rim�nwxe vl.11. �x CROSS [LATCHED a19 AREA DENOTES st:T PARCEL C2 x• e v[p�[.�:n.i.'^.m xu w�YOiv.�'n'v®.lu a b " (. a I- I :®�s.e a nx nam.orlp n�wwe xv• I 1-_ea - mplwl�w rux.el-ns� �' `: rlr w.[• .rewrls vrxm I m rs�`w�s N . 1 ,Y,4 � .Z I ` �'-^.I^i Mx,.Tom.YID.INti•• ��y Y sau am^ma auwur: ,• a ,•• °a '"� 1 0 '_� � I � qqV gym!^R"j j _ I lee um eaonala a[uluw d BENSON LANE �.—_ 1 ryxxl I w-e rrax s[r• 5 ° - BEN ON LANE 1 . m 0 rax exu'• n 1 TYPICAL O SYMBOL FOR LOT MEETING u. • ��..� ^ ��m. '� I W,,,,,P I I SOLAR ORIENTATION REQUIREMENTS `w'I. a1O^` .•ua. r' ON STREET PARALLEL PARKING APPLICANT: 4.5' DETACHED SIDEWALK = I I WITH TREEIAWIN E 0- vlm.l :JI ST CR. �a OF AC,P�—mom....-�xy I DEERRUR slur.-�w.mms m.,a _ xama "w�i.. I ww.av.lr[ STANDARD/PAINTED INTERSECTION ®i; ? I , CROSSWALK e.ema a•m [aw.arts Plxl F • ® PARCELS m� I( RCE[S Ct k C2 7 OF 11 FINAL SITE PLAN —� ' y PARCELS G1&G2 r�rsns..sma.i sra.annr m waouv .. � a • J � �� u su I6. w•� �. \E �'tic art ruuuno. anv-� ... a .• .i '' '' .° �� .I..� i i � � q +.our."•. THOM .Tdel:rq ... � �". i y � ° •IF � / 4 "r i �/ ,♦P�, .' 1." YY-•... a[.[.. .r•.es � .�...� i \ . i 21� / ,r a s.. { "+ / � , ue...r.e.vrr �� v.a.ars, • \ 4<� �I -� i }In � CFI�I SEE r @ /�� esou vorm 1 � r i \ " e<i _i I �� cx m • �v se..vr.r.�..�...�.An �:.�:�". i• •. \ $� --COMMONPACE OPEN w 0 / sm.uwa..w wem w.e.ew.s .el.' ImGItlL PIYM M'9mirllAR 8 e1.0YY1 ` w •Imm M W.I.a.Y rw..Yrl OUTLOT D f""" s' yy � `.ssirowvwv�msesaw .wsaaury ru.wus.vm•rm e� .�essmm w.0 rsc uuwmeun sss maul. .� � ■ sw .rrvmv�m.vsw. ..e mu®mmarm.v®m.. ) so"• I m$�� S �.s rm�.mmsmmwr ows®wm.vm.rt.umPsm I §fit 'p y��r /"""t ..0-r�(� •v. '.'tee"^moos.�■�"`�s �°Sr+ �� G =`�W /'. I �7 � wr � ��..mmesm�mse ^'1 ' �.�sn vw.�.n0e me.v..wesam�r ;.: s ♦ i f 7 MI ANDAR PAINTED+ w I. vI w m"rrss:ru r�remrw�.� `r� BE ROE ON SO ....rn nm n.a0•uaw.m.srm / { ' '• '� ��v� lBNC 11 —� 1 I sn 4 w�i.wlSSrim'�'i sin.-� ss rvwrm.a. i i/ O� °=- 5 Pr 1 sn � ` msre1•m••r.ssjaw�"..risam 'me S /��'Ujj m amrtmss essmur: I i ' i 6 � s / � 1 um Is 0 _s_ ur uo wemo mnm.® nw .�� weu.ww .e..r � / �I� /� im ,,.• ; I �s= war• � y ♦• ' /xx �� * + r rise w.sw• BENSON LANE ; _ smm .ee. w sr r ��OA`Y Im"""•:R� / 20, � 1 �' 1 � ^ I .r nett®mt •'w r W sse a • srm nw. a .ram. / ;�C n/ \ PPr Y � " Mew q r i IJ'nr a •n�srr Pu i �.r�w res su�u ew p APPLICANTar— �{ Tn9!°liTn. na I t_.0 rtl_r_ 1 mss.r �! mmot w.eP ik a m� l'—�'—F' euer�Awm ji ® m.e �2�;t�, I �,, �f � � r, I: •I I 1 3 rp I pie 1` �...m•wrr.m.meP�q n. �. y4�,ny I.... 'w:� m'yes=!un a.cass sw< 1� � •.. ! r. =r..en..s..s.wnr m..r r.. }1 '�� .. i ��ee avirru•wwim ur y i nm r, 1 .R f SID 'b[:"'•ups.mrseq DETATC C �r �� ■ w ru w ruv we e:l � ID61/AIR WITH SIGHT DISTANCE /j ,{ TREE LAWN LOT EASEMENT (TYP.) ( \��♦./ •say/' REQUIRE SOLAR ORIENTATION ♦ � m !; �'Y� REQUIREMENTS (TYP.) yy • acY:s•-soar PARCELS Cl B C2 8 of 11 FINAL SITE PLAN �� . PARCELS G1&G2 �.rmanra DOWNIM TIMM zy TYPE IIi BARRI E ..c.. n..n (See Entineerl ' Drew n`e) Ill I5' DETACHED SIDEWALK 1 i 1gTN TREKLAUN "OMMY NoTho .n.a 40 v PARCEL BOUNDARY . - LOT MEETING SOLAR .. vrt..rrm..ua Yum vwm ORIENTATION cal .v.mrp�w.wan mimrt am maw.. i Ieo+ 9w1 \REQUIREMENTS (TYP.) 1d rp�ww�ers rsm COMMON OPEN SPACE/ LANDSCAPE ISLANDSCURB a eao..�arar a_wwa r me r.Y a rr'01'Qs v'i.mYu.n�"aaxvaw"''vasv..m 9a '� CANO�' .,. \ffi « �� INTERSEG�"l'ONSPS TA3� ��n.w.mm%Ma�'.w WN v oo m nevi wmaY.m�v.w-^'m °° -1 •�°;o "\r °� sTMP Y_w�.m: wa-✓°�i r.�: a Y011 b... I..al..pi aW.Y.a a1..t6 A PARCEL BOUNDARY .I N EAGLE TREE a.0 Y. rw• i ' .�Cir�IO PI.r.�i'eex 6m 'aus .rm rs>�vv rtru.b w. •mw.v .is " � « ♦+£� " GLE FAMILY RES.O PROVINCEFOI/NE FILING i aaui va e�: IV�: b N �F SIGHT DISTANCE �. Q ••a lea 'Y A 4y4�� ; EASEMENT (TYP.) ow... C N SEE AL a B eum r.r oe.mom J.ma na..m. .s •• c ♦ a "38� aw s BATTSFORD CIRCLE '01c' ' m.�iae:a1e"m rtO1pc �I� s.se..aa i we.��aYr"'�ertYm.. ♦ I ♦ � w Y / I m®Y.v.n.m av ov COMMON OPEN ♦ m�.s Ye ♦ SPACE— �� ••...m'a...sw `F w COMMON OPEN SPACE ♦ OUT I D�u i? -�� « /• / APPLICANT: m , l LANDSCAPE ISLANDS �� wmµ•�D (� CROSS HATCHED AREA DENOTES PARCEL G2 . �Ya ION.T Oa Yb N..YI.I 1®i ��P.mm ma.v aatmN — xnY. Y) ar:P PdK9D el.08 IOILL alt P4N ' ® KEY MAP m� 1'�IM1N PARCELS GI & G2 9 OF 11 FINAL SITE PLAN --�� • PO�ENTIAL FUTURE — �' •••® ' �� `�� +o- "i "N TR SFORTBUSSTOP TYPE III BARRICS)$NITFL�,LYgm . e p(See Engine '` gYAW �r rr� jf 6�� rxon co.um � \__/PRIVATE INTERSECTION -'� 1 Dmacr�Ir�1H� \ ? �, g,NJ$PACE Aixr.5H0WN / - �. n — �.. A(A Cy�, N\q\� COyONy HILLS COURT(loco.) DOWNIIV� 7474 — — eO lNp N ' x ' / <�NE•�S��y �� __ THOM e E - E+ �SeF�"f��•:; ��j I Wes � w x.i � � \ �• aT R' w• �p' a' ®jam ��w :..• \/� e m i \°,p n _r bei,� gJTL T I N .G. . ;$ \\ ` CROWN RIDGE CLRC•�e /J� �` � i "'w\ �v \ ° ^;� C�`"•5�t1� a / zD •\ •. � \ ��y ctLpdplB\ \\ � s ii q !il4isax• ._ � / <.y.rR„ � _� x (`, \\ x e e• xa.? re -F� RAIL FENCE ALONG`,`Y ,I �• ' UTLOTNELLAND BUFFER w i MIDBLOCK\\ \ I Is..awl ae... ul ,L^+�^•�, tl SIGHT DISTANCE e1• WETLAND BOUNDARY Is..16eI'o-nl \ 7v IbL PATIO ' f TYP. • ENCLOSURE EASEMENT ) WETLAND AREA BUILDING Isw D.wi 80• TEMPORARY TRASH ENVELOPE II ul � ENCLOSURE BUILDING ENVELOPE (TYPJ 4• CONC. (SEE ENG. DIY S) s••sn.•t GRAVEL TURNAROUND O IT.M apmla•IM a0 ' (s..Dn.0 WALE GATE FOR 20• FIRE rmar.a•.e zrl.•a.a s„se«i ul SENSITIVE WILD \ ITrrl DETENTION LANE ACCESS sw Bo(1a...mr m..lw• LIFE SIGNAGE a1 ro.D..y..aa D.wl.) w la..D.m sxw.Ip 0 EN SPACE/ POND ACCESS (so.aa m ap.emd Dam ssrn D TENTION ur.x rl�m rA rOFF-SITE TEMP FENCE PARCEL H w e "wr a.�..wA LANDSCAPE/UTILITY ti OND (SW T_r.A m reauurxw m.r w w m.rew rir rn•e sw EASEMENT� ��, PARCEL Fl ti�'•smrnlr m.r.ar...r MIRED RESESIDENTI L • - a•r•.ss lrw rmxrrmrw ENHANCED WETND ' �.a.�r e•a ..usnw ws..urr BUFFER ZONE ATTACHBD/DBTAC ED APPLICANT: a q'y row®rsmr�ars www (awrl.o r&.—'f. w�ie s w u s.=.w`.mu°•' we... el...l ® Iuurw�erow ...�.. r• PARCEL 1 .'• rao• BOUNDARY— a. win �v�i.:,.e."r...:r"w..._� j f n.r• :sw:rrmnlvw�grmrrwr •�smrw.�i..iu se�n+�-.d ` ' I yy � ruumsD rtwsum f wvu sPs i'."..'-nrr isrwly mmisw °�m'a:met i xre•es rs•-;a wr-w.•.w 1 retry ' v 1 Ix�Yr r.r w,u.e�n R au _ ANr Tw V.ru•4 r � R rnw �� ( �iyw rrr v a•v n v art.r v rtl®LL Il®10 M fly x.�.aua MmI1R Merrl.u.w ®.N 411wJ , 1 � r•vn.�•°r"�"" .n.,v m•v��in.n•a w'r 0 w rm�•a Trl ` .mr-ra r•m r.rloal- r r.m `wrerD r=.unwn.nlrm ® �.,e ar.m =..'/—FUTURE rR• rem.x r'rn•^a mw °r rr PROTECT LI4YMAP BOUNDARY °"" 10°e 7 w r �— r _ rer wr ry +a.l P i 10 or 11 PARCEL H • m 9 nrem•. r r -_ s w"v FINAL SITE PLAN —� mP TMYI 1RVN r+ar aar DOWNR4G ❑ �io'si rrnmml THORPE x,.� ❑ JAMES C mm xx. SENSITIVE WE.DLIFE SIGNAGE BIICE RACK DHTAII. Ilfi 10.P1X1.H X XR .ml PIxC6 N f!![YAT UMRm PIO ��w 1\1{ALx/ffLP ��__.. ^ y 1�3 i PROAXCXOIO E NRIS LwE ' ery � �N rr � ILX®XCxWi 1YOxN mC1UGi Nx IOm i ..r• w4v+M 1011 WR AQ-qi RQMmO Cglxdl aY#/.R g��. .yy (T.o mµ loutbx �Pw mQo Iee.INu I.wJ CQ) Qqp- 0 TYPICAL PATIO SCREEN ENCLOSURE ADDRESS SIGNAGE DWAE.S xn xQR w..mX m..Nimd..o Rou xR xme ua N000 a nmm v®� ALTRA$E$N OS"RE DETAIL Rv r.Ra x rw rQca R um u as Norm ua.000 m vmvmr Em. Q Pul RRII X 11 1 .N, APPLICANT. RxmSS1AN�lYMU 5=�.� SST' SL Li4' Xam nMIYP nNOP mYMAV• .1 SPLIT-RAIL PENCE DETAE.WETLAND BUFFER AREA mf M PYC6 X OF I PEmm.N .N. 1 KAM&DUrAMS —�N�� Final Landscape Plans for PROVINCETOWNE P.U.D. FILING 2 U�• MAD, City of Fort Collins, Colorado -- INDEX OF SHEETS PARAH PhaPARCE ��Phase6 ' PARCELPhase PARCEL H 3 �_711 Phase 2 .-sun.......�nvm PHASING MAP PARCEL F2 ;+9", SIGNATURE BLOCK PARCEL Py "1 ARCEL J ---- , 13 - 7�� ^may l R wHBsRROss 17 .�.� PARK Sf1E [� � Q ISSUE DATE: 1-14-00 REVISION DATE:5-1-00 J FXMONDATE:7-2&W PROJECT SITE REMONDATE:10-l" { REVISM DAM 12-7-00 KEY MAP oo.rm+c 1 VICDViTY MAP wa:•.� Woos KAUFMAN®BROAD d sn�rwsraruw[wAvcax aurtmo OsW_ ri emun.caaaAm eaui u. k M _ - MMR YTL5HA.gyp E Mll 'TM M . ` _ r,f i< I �[!(AMIIMMO®6 Q r M //1 M w , Ca - APPLICANT. v �� ,a r'f R.'�� '— 1 �: � uTaa�eLacs � a� L � e •_�_ iuT�m ,_ �r ,ry ' NAMMICHAIT CANp9CAP8 PHA9IN0 'O r �� LP-1 SWAM aTBRAN AND&�1®tQRiNANS Y�i y KEx wa MS 4ir� �►� ��►I '�:0 °�`" � � ♦♦♦ ♦dam �� -. ivy ' �,. ■om ,RSE�IIf�t - �i••♦aa O�p�. • Imp. • 1. IIII � .: vie. �•� r>\� >_ � /T" �.��r� �. f �:��W�; •y�i ■f��l�� /"-._. -. `are+ �I �.:o Ta � ��' _ • aCZ3®m®® amm®®® ti M®C=mm® ��v F• I � y '�, .w ��' rR �—�6� M .-�.o H —�- �p uorrac I� �r i• �I�, e - - -S6J w� '� it 0 ewa Was �`4� h�'Y - 134E '. Isry �ro ,� a � �w�.. � ® Nlmf Y lG l UT MTL did AREA MWMANaaNOMM INL Nr 14 eN }ebN 1 t 4Z I u "rPuc"ttr' MWAMUMIXAl7 LANDSCAPE PHASDIG _�} �a•.ql.—sew-- :,. •^ %� � .— '�u�� LP-3 SM ALSO SNBPLAN ANDMZXU VFG PI NS ; p r w NEY 14P NIS ��.; mow,. , �;��`' i rw : J M •-• —"""' .� � I _ 1!�^ ,/J +cr. f e ♦-.,. = eeex 1. ,Q I ew _ Mn — CaT1?-=- 45?Ilhl SRWPLANrMNOM 14 a• �° J - w a ' q w _� (i _y —� N C � �� ..(( � nrs • w ,[PW]�09 Mr '� f��.vsiwlw lii J ♦ -wv�_ 1 I.TI �� \ I ' � .•w�i��os or i%.s O APPUCANr �lW< A ,..,,.,,....�... � _ lANQ4GOLPEPNASMO ' 10', LP-4 SMAMSrMPLMAM F u5 .... KEY w NTS MI Lamm s - - - - - - - - - - - - -- MT EXISTING WETLAND AREA � +`z N riA �....:.«..5Ile �r 1. 'j, 3 .. t .�� APPLICAW. _. 1 WAMRuSBarAar ' I.INOBCAP8 PNA9IN4 O; LP�b . SNAMUMPf.ANANDENOD MMPIAM 0 NNw KEY WP Ni5 EAST TRILBY ROAD —+m110 UT — — — - - -- - 8 0666 2 11/14/86 — — — — --- ...--r. SHMPLANTMNOM A EAGLE TREE i I p10 8 APPM NIP � wAreaws®ART S .• ...'9 LANDSCAMPHASINa f ••aa ,-ae' LP-6 F SMALSOUMP1ANANDMOM ANB • r�r K wv ws ♦ x �.m I � O'A,1 '. Via•.. - ;�� ' • �'� �♦♦ ♦,,• � •e♦, Ott '^ _�..�' pop Ali �1e a®cm®®® � ®®C==C= -- NE. BE�SBN LANE Jim— n... SEMrMANTMNOM w _ — s — SWALE CR. DkERHUM s , � wAM �cxAxr ••••"- gr @t .LANOBGAPNASBrry®r-_ f.USE V 1 V PE SSBALS UMMA;ZZ"IDOOM 0PLAM KEY wr NTS • i i 1 IEl>ffilU ,.. rArcYae axcer v-g_— — . CDOWNDU --- --__ • _ BUZV RIP RAP g OPEN SPACE Ap�1hIgllreernrw�. �O M1 8YIMH.AMff70Nd189 A OyT .a a N a / ` / •� { EXISTING SINGLE FAMILY aw s — ,• s .. � � wvr.•�uao — v I " 7 LANDSCAMMIAYNO LP-9 MMAL40 SII73 FIwN AND @70DMMOPIaNS • • - w• KEY Wv ars MA Mllf A9 / s i km ML I I m EXISTING SINGLE FA111L51 ��».. ( 1- gam._ L 11+19 I I SJti P _GLEN LANE- _ •� W 1 `/ � w�rw�ua.o HEPTHER - / i WATIRMCHARr _8 LANDMAMMASM 33 �� •14 ,-16' L p f �AI808n8P1ANAtNIDRAN3 » ».. ecr Ww � HEATH ERJ GLEN SHMPLANTIM NUM A t FUTURE PARK SITE .11A p PROVINCE ROAD ' .^ rrr•w�r 7 7 4 AA i� WAIMMECNART LANDYAPHMWIPO r V'1� d4 !•-te' LP-11 91M111.90$[18MNAND WY!>P1MOMO PLANS • . M _ KEY wr Xi5 fir) r J ® - - I A nMl SIQT v"n ————————- am T a=s� i < S> PLANTSWIWFSS � 'i u i� FUTURE PARK SITE E �••-•� NNIIMI�NAm�o i WA7MU98®AZr w I IwemscweeeNAsu+o 101 Q� LP-12 S®ALSO SRH(MN ANDERMOMM PLANS FFr 0.0DOWNM •— I ImmT _ M e-sIv EXISTING SINGLE FAMILY —'-'-' E A _ wr M -eR .. ......�C.:.. �a1 OVlNCE.. ROAD •. S'iS.�w � 1� � • d �yp^ m. I @ IS p \ i vr NAT13t11 CHMff `14 --40' LP-13 Am am MN AND 13iVOQ> mp1AN9 M W KEY IMP Ms SADDLEBROOK uNe •1 :reLANiwoxvme A ` ate! r - � �" �3"°•7—T�w��? � VoF(zy7 { 1• — �— a.— APAICANT. w.. Q �"".�. wrr•n�..ao ." rr wo�oArs " w - ••i f� ae LP_14 SEE AM UM PLAN AMENIGR1n8fM PLANS • r w w.r .n fw .,s • • a EXISTING SINGLE FAMILY I 71 ® JAmt 1 u �-- [f71 --w PROVINCE ROAD rjr- a APFUCANr. YET eft M[T V-n I_VA .w. 14. .. 1 I a gh DLEBROOK LANE_ FBI- I WA7MEMCNABT 3 ___ ...w— LANDSCAPEPHASINO � � fOlOtOAA SI18 AL403I18PIAN AND L PLANS _— KEY W Ni5 - - r . 4 ...� \ MIMI SADOLEBROOK LANE - \ mr- f LrrL .•..r,_ 1 — SHMPLANPMDN078S EW WE? mg APPUMM WA'IMBMQART LANDSCAPEPNA5410 I ME ALSO SRB PLAN ANDHNOQ-- PLANS . wr .er ruv MS — 4 YATCMLME tEE BNLLTµP-1E " \ K V' �, K•Ms LBDHtm �a�•K •:'� rArcxuxF tF[eHar v-n \ ��\ � y-- � .-..-. u,•.� DOWNRM THOM .\ VIINITL Ewa- _ILA ---OtK --------s' --- -- `\ MATCME BEE GREET L 17 / Y6 7n. �� Ys.•�. BMlu.xAEtuo I I rATG!:I B!F uleT V•tl —___—_____�.�..� — �____________ MATCNLN!B!!SHIFT V•15 s� i WATBRIISEIXART LANDSCAMPHASM ^^•-. PLAN MB SM AISO sna PLAN AND m+ MMIRDm PLANB KCY NN MS �mTHORN MT "- MTL MATCI M K[ LP-1] ,na MTGMLIM:M SMT LP-u , _____________ pA •~ �j _ 3dOWMTilV70A048! um - ^ , . . - - ----------- �r_a ip ! i 7�7 t 4sn:s�`s O APPUCANM i i WAMUMCKART - - less A LAtIDBGMPM.TII70 LP-t8 LBOEND mm `\ e. All i rn ci SEMPLANTDOGNOTM " APFUCANT. WAMMUWCHART IANDSCAPHPHASWO _ - _-L RP -' •I • - —.. • Mu. .}•Y. LYWCAl� 1� •mow r�a•w-wow �� ."' �- "—""'W--m LP-19 5®AL908N8PIANANDENWO BOPLAN9 • • w w w_ J L • OENRRALNd18S• LMLYaYAL��M � •d .wmmwwm.mao�.r ��, I ,w,,,,, sneusmm�rvlv�mT a>a�ue�amiavaeTHOM s.snauuma JAMB 1MLMaM�vOTfLMM IYMNf�O1A1LN� A —� gaO�OY�TMOIYd . YMAN�RI�R�ON YIIOGIDI wo TYPCALPRORTRLRVATMC4P M 7WO4=YsmeELHVATM A a � � •d p TYAr•r PRONf ELEVATION(6AIOO ONID-R10RY 9mRRLRVATRIP! 0 � pvlsw•n�seuvnnnONl�q IwOONOT WWW a APPLICANT. I � I � I I RNRRW.Y01R JEMI I 1 i I I I aav�inne-.. >t� TYWGU.RRARM"AnM(6('(�() �.�� NOWAK 1 OF 1 � pwuavnav�o.wm vuwrTusowww.ma aY=.rs`.� ARCIRIBCIVRALHLHVATIONS r 9O E BRITTANY KNOLLS & sERNCE CE CENTER (Urban -. 1 _ 3 _L Y_I . �w aYo .Exxpw DOWNING THORPE �� M1TmV, 6$ 1\II'Sm YR "9'e`+_d''g] , Iy�alDir D�MIaRn "� 1 WAES O� �. DnwnArcuv H on d LARIMER COUNTY �• y� '"`""""` ' I I I I '�'' Agricultural ('ATIM\ApsN 1 �J x I51 GLE KEY mull F I— /GDun1�R�Mx1Y 1 • ,i ' '/ n F I VJL1.AGECW ER 3 /I MIXED REyoeNNTT = L•x a, 1 L LEGAL DESCRIPTION I L r nn] nArxExAwAcHool / � I• L ED 1.✓r IxIxACR ,. // FxLL 1 \ 1M'1gvA'1I6 I I / �SIXG In _ FAMILY 6 al nn]] 1rz EA E TREE r ]m.N,e AI -rlalxl '- u 911VGLL FAMILY I _ D"ACIRE LY AC a Nf-D SInCLE FAMILY GE/ E _ DE WA HE1D An. IN`rTpnlR 11 .rtVl KWAn IOMNNa sr b rox/oFm� ..i 6 �.._.. ]Ya J N oFYII.AL IN FAM V I T ��,•, / �Ey D ACNE OJ � ROB BLNRON ,NEIGfleDRNaoD FAR - �• _ Ia NESBRVOIR \ ANDSDProRTI El �TI r rznnAL Acau / N sl ED IDENTIAL C1 91 L FAMILY h � w q ��pY ]•ow.`1r hyn , ,w"`.c I � - II oL.P•y�T,�- I ES` �/�� 'b-�i � `t� n/v�lY.�nl6'�.�1•' ..."c%,�� / ( al R Sidefltl /�✓ "I:pNnRn°n nN.., $ L T I I PROVtNCET'OWNE '�✓. u•�' OPeNB �L .DMRLED2' AMENRED OVERALL 11EVEW'MI:1T I9AN - - TRAW IIYxRY A \ p W1E S, TTED HIV., uup°r,a xF/5N NWRESIIx•.TAL IIq},NE . SHEET 1 d} 1} � ( t a= Q �i � � � (a✓ �/❑ '� � ,... DOWNING JAMES THOM ICTORI �\ PUBLIC (RBI R s, nu l '�NATURAL —1 U I - —�h AC.) A A/OPE PACE r + ( LEGAL DESCRIPTION (ARTERIAL)r;'Y(fi(�:{IiIMh� _N. ... County Lands PROPOSED DEVELOPMENT CONCEPT AND STRATEGY PLANNING&ZONING APPROVAL SITE TABULATION VICINITY MAP OWNER'S CERTIFICATION -� ;/f �� ^!�� • �� —•E,�;ti,.-1 _ _ .,..tea,.... — __ s __ ..,._ �i�us � l � �'?W..�•:.`�S�'_Y"Z. �: CONCEPT NO TES............ m..........,,,.,..... _ ..� ._. I _. X'r.,°�u• �� .\4pOf` __T......_...�.....,,..,...,,,. .. �., .... �...'.... ........... CURRENT ZONING ._ _,.__......_.......� ,,......._._...�..... „_��.. N i — PROVINCETOWNE. NE T. PIq.EC, : PoN.4 p PROVINCETOWNE ,�� .....+.:.n AMENDED MEMLL DEVEMN•MEW PLAN w �' _ if w,e werrreo. unisu PrideMark �� (ewNwNn�sw.nu:l Homes KMES Community Planning and Environmental Services Current Planning Jity of Fort Collins MEMORANDUM Date: January 18, 2001 To: Planning and Zoning Board Members From: Stephen Olt, City Planner RE: PROVINCETOWNE Planned Unit Development (PUD), Second Filing - #73-82U. Request for a Variance to Point Chart H - Residential Uses, the Affordable Housing Component, of the Land Development Guidance System (LDGS). The Planning and Zoning Board approved the Provincetowne PUD, Second Filing on August 5, 1999. This request, being a residential project, was evaluated against Point • Chart H - Residential Uses in the LDGS. It received a portion of the overall points earned based on the following criterion: "if the project contains dwelling units set aside for individuals earning 80% or less of the median income of City residents, as adjusted for family size, and paying less than 30% of their gross income for housing, including utilities ("Affordable Dwelling Units"), calculate the percentage of Affordable Dwelling Units to the total number of dwelling units in the project and enter that percentage, up to a maximum of 15%. (If the project is proposed to be constructed in multiple phases, the Affordable Dwelling Units must be constructed as a part of the phase for which approval is sought.) In order to insure that the Affordable Dwelling Units remain affordable for a period of not less than 25 years, the developer shall record such protective covenants as may be required by the City under Sec. 29-526(J)(4)." The Applicant for the Provincetowne PUD, Second Filing has submitted a request for a variance to the 30% provision in this criterion on Point Chart H - Residential Uses, requesting that the percentage be amended to 38% for the following reasons: 1. The LDGS provides a density bonus to the developer that builds affordable units. An affordable unit is one which is priced such that the housing cost, including utilities, for individuals with incomes of 80% or less . of the Area Median Income (AMI) for Fort Collins is less than 30% of that 281 North College Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970)221-6750 • FAX(970)416-2020 amount. The LDGS does not recognize any difference.between "for rent" and "purchase" units in calculating the maximum•mopthly housing amount. Additionally, all costs including utilities, insurance, mortgage insurance and Homeowners' Association (HOA) dues must be included in the maximum amount. 2. The Applicant purchased the subject property from its predecessor in 1997, subject to a contract for purchase dated April,.1996. At that time, development of the property was subject to the LDGS that was utilized by the City of Fort Collins before the adoption'of the current Land Use Code L( UC) in March, 1997. 3. Following the replacement of the LDGS in 1997 with the LUC, the City adopted a new policy that recognized a difference between "rental" units and "for sale" units (Section 26-631 of the Code of the City of Fort Collins). While retaining the 30% of gross income for"rental" units, the City now permits 38% of gross income to be used for "sale" units. This change recognizes that in the case of"for sale" units several other costs are often included in mortgage payments, or other mandatory payments, that are not commonly included in the case of a "rental" unit. It is recognized that the failure to increase the allowable percentage would result in fewer dollars being available to pay the principal and interest in the case of"for purchase" units and, therefore, would result in the buyer purchasing a lesser house than they could in relation to a comparable "rental" unit. 4. Because the LDGS does not recognize a difference between "rental" and "purchase" units, the result is to penalize the purchaser because their purchase dollar does not buy as much as the comparable renters. The City's current policy has corrected this inequity. 5. The Applicant is committed to providing affordable housing to the City; however, the use of 30% of gross income versus 38% of gross income is such a substantial difference that it makes it financially unfeasible for the Applicant to build this housing type. 6. The City has recognized the financial difference between "rental" and "for sale" units and has endorsed the use of 38% of gross income in the case of"for sale" units (Section 26-631 of the Code of the-City of Fort Collins). 7. The City has identified a need for affordable housing and has adopted a plan to increase the stock of affordable housing in Fort Collins. The Applicant's proposal is an important part of that plan and has been from the original sale of the property to the Applicant's predecessor. Therefore, the Applicant hereby requests a variance based on Section 29-526(K)(4) of • the LDGS. The granting of the variance from the strict application of the provision will result in a substantial benefit to the City by reason of the fact that the proposed project will help satisfy a community need (affordable housing) and that the strict application would render the project practically unfeasible. Section 29-526(K) of the LDGS states that the Planning and Zoning Board is empowered to grant variances to the provisions of this section. Variances may be granted if the Board determines that the granting of the variance would neither be detrimental to the public good nor'impair the*intent, and purposes of this section, and if the applicant demonstrates: (1) That by reason of exceptional topographical, soil, or other subsurface conditions or other conditions peculiar to the site, undue hardship would be caused to a subdivider by the strict application of any other provisions of this section, or (2) That by reason of exceptional conditions or difficulties with regard to solar orientation or access, undue hardship would be caused to a subdivider by the strict application of any provisions of this section, or (3) That the plan as submitted is equal to or better than such plan . incorporation the provision for which a variance is requested, or (4) That the granting of a variance from the strict application of any provision would result in a substantial benefit to the City by reason of the fact that the proposed project would help satisfy a defined community need (such as affordable housing or historic preservation) or would alleviate an existing problem (such as traffic congestion or urban blight), and the strict application of such a provision would render the project practically unfeasible. It is Staffs understanding, based on verbal commitments by the Applicant, that the 141 multi-family dwelling units in the Provincetowne PUD, Second Filing will be available to qualified individuals as affordable units "for sale". In 1994, City Council adopted Ordinance No. 66, 1994, defining Affordable housing project, Affordable housing unit for rent, and Affordable housing unit for sale. Their decision was based partially on a recommendation by the Affordable Housing Board to increase the.amount of household gross income that an individual or family may pay for housing from 30% to 38%. This is set forth in Section 26-631 of the Code of the City of Fort Collins, which states: "Affordable housing unit for sale shall mean a dwelling unit which is available for purchase on terms that would be affordable to households earning eight (80) • percent or less of the median income of city residents, as adjusted for family size, and paying less than thirty-eight (38) percent of their gross income for housing, including principal, interest, taxes, insurance, utilities and homeowners' association fees. The unit must be occupied by and affordable to such low- income household(s) for a period of not less than twenty (26) years." Staff has determined that the granting of the requested variance to Point Chart H — Residential Uses, specifically the Affordable Housing criterion, would neither be detrimental to the public good nor impair the intent and purposes of this section, would result in a substantial benefit to the City by reason of the fact that the proposed project would help satisfy a defined community need (in this case, affordable housing), and the strict application of such a provision would render the project practically unfeasible. Staff recommends approval of the Applicant's request for a variance to the Affordable Housing criterion on Point Chart H — Residential Uses to allow the amount that the purchaser of a "for sale" dwelling unit may spend be increased from 30% to 38% of their gross income, based on Section 29-526(K)(4) of the LDGS. Community Planning and Environmental Services A" Natural Resources Department City of Fort Collins MEMORANDUM TO: Planning and Zoning Board FROM: Mark Sears, Natural Areas Program Manager DATE: November 29, 2000 RE: Provincetowne—Offsite Drainage and Water Easements Provincetowne is a collaborative project between the City of Fort Collins and the developer. The City became the owner of this property due to a failed special improvement district years ago. In an attempt to sell the land to a responsible developer and to provide affordable housing, the City chose the developer based upon a proposal review selection process. Approximately 160 acres of this land around Benson Reservoir and along Trilby Road is being purchased by Natural Resources for a natural area. • Kaufman and Broad are working with Natural Resources to obtain drainage and waterline easements across the natural area portion to the south and west of toe portion to be developed. Natural Resources staff is supportive of the drainage easements and approves of the drainage improvements that Kaufman and Broad are proposing to construct on the natural area. We believe the drainage improvements will enhance the wildlife habitat in the natural area by creating wetlands. Our only concerns related to the drainage easements are ongoing maintenance and liability, which we believe can be resolved in the development agreement. Kaufman and Broad have proposed to construct the waterline across the south side of Benson Reservoir immediately adjacent to the north side of the Victoria Estates Subdivision. This alignment would have minimal impact to existing vegetation and wildlife habitat. However, we are concerned about future impacts the waterline may have on the site. Our plan is to restore this site to native vegetation and enhance the wildlife habitat. Future waterline maintenance, repairs and especially replacement could have significant impacts on vegetation and wildlife habitat once the site is restored. Therefore, we have asked them to look for another alignment that would avoid the natural area. If no other alignment were possible, Natural Resources staff would support the waterline alignment proposed across the natural area. If Kaufman and Broad proceed with their request for the waterline easement, it would need to go to the Natural Resources Advisory Board for their recommendation and then to Council for approval. The request to construct the drainage improvements on the natural area would go to the Natural Resources Advisory Board for their review and then be approved through the . development agreement process. 281 N. College Ave. 9 P.O.Box 580 • Fort Collins,CO 80522-0580 • (970)221-6600 • FAX(970)224-6177 November 24,2000 ' Irvin&Eva Lieser 830 Rumford Court Fort Collins,CO 80525 Community Planning and Environmental Services City of Fort Collins P. O.Box 580 Fort Collins,CO 80522-0580 Attn: Steve Olt City Planner W. Olt: I am responding to the letter from you,dated 11/16/00,regarding Provincetowne,2°"Filing, Final (LDOS)-File#73-82K The following three items are of concern to me. 1. I fail to understand how this can be a final filing when there is a suit pending in Appellate Court regarding the sale of this property. 2. There are currently two(2)major multifamily facilities on the next comer,less than Yz block away. I believe that this area supports the proper mix of housing without the introduction of 141 additional multifamily units. 3. Currently the children in this area attend school in Loveland because the Fort Collins schools are unable to accept these students. It seems unwise to introduce more children to this situation. The 141 multifamily units would surely produce several more students for the already burdened schools. There are several more issues of concern with this project,but just consideration of these three would cloud the scenario sufficiently to table further discussion until the questions have been answered We urge the Planning&Zoning Board to table this item Sincerely, / Eva Lieser Irvin Lieser December 7,2000 Planning and Zoning Board City of Fort Collins 300 LaPorte Avenue Fort Collins, Colorado 80522 RE: Provincetowne PUD,Filing Two—Final-#73-82U Public Hearing of the Planning and Zoning Board, December 7, 2000 Request For Inclusion Of The Written Testimony Of David G.Evans 6806 Deerhurst Court, Fort Collins 80525 TO THE HONORABLE MEMBERS: I hereby formally request that the statements set forth herein be made a part of the official record of the hearing by the Planning and Zoning Board of the City of Fort Collins to be held on December 7, 2000, in the matter of Provincetowne PUD, 2"d Filing, Final (LDGS)-#73-82K as set forth in that certain notice of public hearing dated November 16, 2000. In addition, I hereby formally request that all documents . referred to in this statement be incorporated as part of this written testimony as though fully set forth herein. Preservation of Neighborhood Character As set forth in the records of this matter, Applicant is seeking final planned unit development (PUD) approval for 331 residential dwelling units(190 single family lots and 141 multi-family units)on 70 acres which establishes a density value of 4.73 dwelling units per acre. The development which is the subject of this approval request is situated immediately adjacent to Provincetowne PUD, Filing One(Eagle Tree) consisting of 93 single family lots on 50.34 acres with a density value of 1.86 dwelling units per acre. I am of the opinion that the density values of each of the respective developments are not compatible and should not be linked in such a manner as to diminish any aspect of the density attributes expected by the residents of the%agle Tree subdivision. In that regard,an element of Applicant's development which will diminish the character of the Eagle Tree subdivision is Applicant's request that local streets within Applicant's development be connected to Brittany Drive within the Eagle Tree subdivision. Applicant's site plan sets forth the connection of its local streets at various locations along Brittany Drive. It is the desire of the residents of the Eagle Tree subdivision to retain the low density character of the transportation infrastructure of their community as well as to maintain the low noise level generated by the present level of traffic within the subdivision,therefore, I am requesting that the Planning and Zoning Board deny the Applicant's request to connect its local streets along Brittany Drive. This request is consistent with the stated intent and provisions of Sections 29-526 et seq. of the Land Development Guidance System, wherein it was stated the special care should be taken to respect the context of the site • and the character of the surrounding existing neighborhoods, in that, intensification and redevelopment must be balanced with a strong sensitivity to protecting existing neighborhoods. Provincetowne PUD,Filing Two—Final-#73-82U Public Hearing of the Planning and Zoning Board, December 7, 2000 Request For Inclusion Of The Written Testimony Of David G. Evans December 7,2000 Page 2 Drainage At the hearing before the Planning and Zoning Board of August 5, 1999, it was determined from the materials introduced by,and the testimony of representatives of the Stormwater Division and the Planning Department of the City of Fort Collins, that the drainage system of the Provincetowne PUD, Filing One subdivision had been inadequately designed to accommodate the flow of waters in,upon and through said subdivision. It was the intent, as stated by the Planning and Zoning Board at that hearing, that the Applicant, as a condition of approval, would be restricted from diverting any of the flows of water from the Provincetowne PUD,Filing Two subdivision into,through or upon any element of the Provincetowne PUD, Filing One subdivision drainage system. I am requesting that any approvals given by the Planning and Zoning Board to the approval request of Applicant specifically be conditioned upon a written provision that Applicant will not divert any waters from Applicant's development into, upon and/or through the drainage system of the Provincetowne PUD, Filing One subdivision. Adequate Public Services In accordance with the provisions of Sections 29-526 et seq. of the Land Development Guidance System, it is incumbent upon the Planning and Zoning Board not to approve developments that reduce the public health, safety and welfare. Applicant's development significantly impacts the existing quality of the infrastructure and various other services provided to the residents of the City of Fort Collins. Inasmuch as no economic model has been developed to substantiate that the proposed development would not have an immediate and ongoing negative impact to the existing level of services provided by the City of Fort Collins to the residents, and that, the Planning Department has not analyzed such an impact in relationship to the dilution of the level of services being received currently by the residents of the City of Fort Collins,an approval by the Planning and Zoning Board would be contrary to the intent,purposes and requirements of Section 29-526 et seq.of the Land Development Guidance System. Substantive Requirements Pursuant to the provisions of Section 29-526J(4) of the Land Development Guidance System, Applicant, as being the recipient of a residential density bonus for this development, is required to provide covenant documents to be recorded with the Office of the County Clerk, guaranteeing the use of dwelling units for low-income families. The covenants shall be submitted and approved by the City of Fort Collins as to legal form and effect, providing that use restriction be for at least twenty-five (25) years. No final plan shall be approved for any portion of a planned unit development, approved with a residential density bonus for providing for low-income families, until the necessary legal documents have been submitted and approved. A review of the file of the Planning Department did not reveal that the covenants have been submitted nor approved. In that regard,the Planning and Zoning Board is precluded from approving the final plan. Provincetowne PUD, Filing Two—Final-#73-82U Public Hearing of the Planning and Zoning Board,December 7,2000 Request For Inclusion Of The Written Testimony Of David G. Evans December 7, 2000 Page 3 Jurisdictional Objections To Approval The following are continuing objections to the jurisdiction of the Planning and Zoning Board of the City of Fort Collins to render a decision in this matter: *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager of the Agreement of Purchase and Sale of Real Property(hereinafter "Purchase Agreement')by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996, was specifically reserved by Section 4 of Ordinance No. 41, 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-11 I(a)of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duty enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First • Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and between the City of Fort Collins and Pridemark Development Company,LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a matter of law, modify an executory agreement. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative discretion which violated the requirements of Section 23-111 (a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to the City Manager of the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First Addendum To Agreement Of Purchase And Sale Of Real Property,was an improper delegation of legislative discretion which violated the requirements of Section 23-11 l(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997,of the Application with the Current Planning Department requesting Planned Unit Development- Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. Provincetowne PUD, Filing Two—Final- #73-82U Public Hearing of the Planning and Zoning Board, December 7,2000 Request For Inclusion Of The Written Testimony Of David G. Evans December 7, 2000 Page 4 *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997,of the Application with the Current Planning Department requesting Planned Unit Development-Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board failed to give timely notice of August 5, 1999, hearing. *No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the Planning and Zoning Board. *Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29526K of the Land Development Guidance System For Planned Unit Developments requires, "Me decision of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board." *Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins Solar Orientation Ordinance, in that,Applicant presented no evidence which would demonstrate that the granting of the variance would neither be detrimental to the public good nor impair the intent and purposes of Section 29-526(2)A-I/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties with regard to solar orientation or access, and that undue hardship would be caused to Applicant by the strict application of the provisions of Section 29-526(2)A-I/A-1.1. *The full text of the arguments set forth in the Notice of Appeal dated September 3, 1999, and filed with the City Clerk of the City of Fort Collins in the matter of the appeal to the City Council of the approval by the Planning and Zoning Board of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance is incorporated herein by this reference as though set forth in full. tGEv5 itte�ans Community Planning and Environmental Services Current Planning City of Fort Collins January 4, 2001 Dear Resident: The Planning and Zoning Board of the City of Fort Collins, Colorado, on Thursday, January 18, 2001, at 6:30 p.m. in the Council Chambers**, City Hall West, 300 LaPorte Avenue, will hold a public hearing on a proposed project in your neighborhood. The proposed project is commonly known as Provincetowne, 2n° Filing, Final (LDGS)— File#73-82K This is a request for final planned unit development (PUD) approval for 331 residential dwelling units (190 single family lots and 141 multi-family townhomes) on 70.0 acres, located on the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South College Avenue, north of County Road 32, and zoned LMN— Low Density Mixed Use Neighborhood. This project has a qualified Affordable Housing multi-family residential component. Both the Planning and Zoning Board and the City Planning Staff consider your interest and input in this matter, as well as your neighbor's input, an extremely important part of the City's review of this proposal. If you are unable to attend the public hearing, but would like to provide • input, written comments are welcome. The list of affected property owners for this public meeting is derived from official records of the Larimer County Assessor. Because of the lag time between occupancy and record keeping, or because of rental situations, a few affected property owners may have been missed. Please feel free to notify your neighbor of this pending meeting so all neighbors may have the opportunity to attend. Please Note: Due to the number of projects being reviewed by the Board, there is no guarantee this item will be heard on the date advertised. For the benefit of those attending the meeting, the Board typically sets their schedule at the beginning of the meeting. Sincerely, 423tPr City Planner *Please note that if the Thursday, January 18'" meeting runs past 11:00 p.m., the remaining items may be continued to Thursday, February 12% 2001 at 6:30 p.m. in the Council Chambers, City Hall West. "The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements • for persons with disabilities. Please call 970.221.6750 for assistance. 281 North College Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 * (970)221-6750 • FAX(970)416-2020 Community Planning and Environmental Services Current Planning 6a 1. City of Fort Collins November 16, 2000 Dear Resident: The Planning and Zoning Board of the City of Fort Collins, Colorado, on Thursday, December 7, 2000, at 6:30 p.m. in the Council Chambers", City Hall West, 300 LaPorte Avenue, will hold a public hearing on a proposed project in your neighborhood. The proposed project is commonly known as Provincetowne, 2nd Filing, Final (LDGS)- File #73-82K. This is a request for final planned unit development (PUD) approval for 331 residential dwelling units (190 single family lots and 141 multi-family townhomes) on 70.0 acres, located on the south side of Trilby Road at Brittany Drive, west of South Lemay Avenue, east of South College Avenue, north of county Road 32, and zoned LMN — Low Density Mixed Use Neighborhood. This is a qualified Affordable Housing project. Both the Planning and Zoning Board and the City Planning Staff consider your interest and input in this matter, as well as your neighbor's input, an extremely important part of the City's review of this proposal. If you are unable to attend the public hearing, but would like to provide input, written comments are welcome. The list of affected property owners for this public meeting is derived from official records of the Larimer County Assessor. Because of the lag time between occupancy and record keeping, or because of rental situations, a few affected property owners may have been missed. Please feel free to notify your neighbor of this pending meeting so all neighbors may have the opportunity to attend. Please Note: Due to the number of projects being reviewed by the Board, there is no guarantee this item will be heard on the date advertised. For the benefit of those attending the meeting, the Board typically sets their schedule at the beginning of the meeting. Sincerely, OteveOtltk— City Planner `Please note that if the Thursday, December 7th meeting runs past 11:00 p.m., the remaining items may be continued to Thursday, January 18th, 2001 at 6:30 p.m. in the Council Chambers, City Hall West. `*The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities and will make special communication arrangements for persons with disabilities. Please call 970.221.6750 for assistance. 281 North College Avenue • P.O. Box 580 • Fort Collins,CO 80522-0580 • (970)221-6750 • FAX (970)416-2020 ACTIVITY: Residential Uses H DEFINITION: Ail residential uses. Uses would include single family attached dwellings, townhomes, duplexes, mobile homes, and multiple fiunily dwellings; group homes; boarding and rooming houses; fraternity and sorority houses; nursing homes;public and private schools; public and non-profit quasi-public recreational uses as a principal use; uses providing meeting places and places for public assembly with incidental office space;and child care centers. CRITERIA: The following applicable criteria must be answered `yes"and implemented within the development plan. 1. DOES THE PROJECT EARN THE YY o N/A POINTS AS CALCULATED ON THE FOLLOWING LOWING"DENSITY CHART H"FOR THE PROPOSED DENSITY OF THE RESIDENTIAL PROJECT? The required earned credit for a residential project shall be based on the following: 60 ercentage oints=6 or fewer dwellin units per acre (�4,( y ¢.13 60- 70 percentage points=6-7 dwelling units per acre duZ/w 70- 80 percentage points=7-8 dwelling units per acre 80- 90 percentage points=8-9 dwelling units per acre 90-100 percentage points=9-10 dwelling units per acre 100 or more percentage points= 10 or more dwelling units per acre 2. DOES THE PROJECT EARN AT LEAST 40 Yes No N/A PERCENTAGE POINTS AS CALCULATED LJ ON THE FOLLOWING"DENSITY CHART H" FROM BASE POINTS? Land Development Guidance System for Planned Unit Developments. The City of Fort Collins,Colorado. Revised as per Ordinance No.2, 1996. CrlteianMAAMM Eared Ceadlt Ltdit 2000fedafmadstitgnagbbmhod ory Owta;ara $ afgwP9& (ItthePr*octisj j bbommmedicmltip! Pluses sutd,mYhbodsood aaviceua most be conmwctad u a put ofthe phase forwhich appowl is se.AL) b 650 fed ofmdaisting * tap(aFiu=baaolytoProjdn using a density ard lead six16,dweRmgtmm 20%Pr aae on a vm servails bean) C 4000 teat of am aadding aommmity&e imd shopping ads,a a oomman4*0ppav shopping emtarbba 10% amtruded u a pat of the poja L (If the ptojet is I I .i to be 00mftdod fitmukepie Omsk stash oo�ltydrcgkmi dffpetg odwasud be constructed AS&Pat ofore phase forwhich approvat is am glt,) 35Wfaddaoeaieiogudgh6adtoodcrmmmotyPedL or a commmuy Scft EX VTGOLF COURSES); 20% ar d 3300 tad of a Publicly owned,but not developed,auigbbmbwd or (EXCEFf GOLF COURSES)ar Community Park or oommunity ficilky 10% 3500 fed ofaptbtidy,owned goffomuse,wheshrdereloped area O lo% e 2500 fed ofan adding sultan,maluKall mcluh®nri afthe State afOolredo 0e°Vlaoay education laws 10% f 3000 fid d an adding m4or employment coda.or&m%;W amploymest center to be constructed as a port of thepolect. (fftho Pojod ispropmedto be ConstructdmmltiPk phases,mdsmyaamploymentantamusa 20% be constructed Is put of the phase tar which approval is aengbL) No hu7diog oTm es,businesbusinesspark ar ,..+ shopping cdr whichhas served!as the hubfaults da®ing of uaede no any other ""aitaia ofthin Density Chut can afro be used ss the basis far ciamma credit under this c iteriom "be o b 1000let ofa&adding chMarc cam",a■Child care imam beoadmctd as ofthe (If the p 4aQa 'lobe constructed ar ted in multiple phases, ch child comes constructed s e must b �part ofthe Sx approval gb L) b "North Fad Coll®" lox I The Central bunion.Dutrid 20% Aprojea whose boundary is oomiguous to adding urban rtevdopmmt Crecidmayboeamdufollows 30% 10-i *A Fa�ab whose property boundary has 0-10%aomigulty; IS- FmproJor .da�popmybmdaryhul0-20%o,W ity, 0-25% Fapea0am has 20 oamPdr PmP=Y 6u30 40%ediguty 22 a tan lrthe residennts,asent �yue�ad to i ka ten Wait0%of heir ar Im ofihe median i000me atfCdy 15% 1{ tmTnia CAffa&wDwdiwguob-AmbA htba 1 c than Sox ot0w r gross moome far bouncing,mdu�mg Dwelling Units to the Small member dwslGogmltamthepeojeatand entrthd pred`gQof Affaa.ble bbvoenmnted ensAWb phases,the Affad"Dwcts UW' atdmum afl (Iltib prrojectspaposed whidtapprrovd inswdR) to adrbiowste ailing Una must be Coomtutd u a put of the phase far a paw afro l®than 25 year;the dewlaprda mmdnwh Pvlactitu�Units yam affordable the Lor aunder See.29-326(J(4} maybe rogrtired by the City under Clilaion - - Earned Crdit i Irimbed®aotsmdmerlheprojad W31 reduce nooeooewable amgy cup adlxsttaough thetionsion stsaussive syamma orthmugh co®itted MOW nenevvattaa common beyond those normally taquaed by a s%boom maooy be earo Ifor every 5%redu Liao n cusWea a. m Calculate a 1%bamu forewxy 50 aura included n else peojecL II Cakubmdwpemenuraftbatotal&cmimd projeddmtnedrmWtoreaetimatum F&w%ofthatpaculageaaabaoua. n If the applicant oo�b grew ng pen»anrm offyde hy' raquaemam;alalam the pmomtage aftha Woo apace&ereagebshe teal a�nrg0a that merathe C• amiss. devdapmamamage and error Wa perormage co a hamea. p �2%bomusfir development budget ambespemannneighborhood public tnmRfiawtimwhkbam not requiradby�'C*4 every$100 per dwelfiog unit nseved Q IrPut ONO tatildedoPnentbudyut is to be wad an neighborhood noel aerviora which are not Otherwise roquirodby Y Code,actor a 1%boone fix every 5100 per dwelling unit nveead. 0' Ifiheprojoct—aim dwell'mguemset saidefar individuals caning 80%orlasarthe mediae name ofe• ins paying has than 30%of their ems'as ad'mOd for family sire,and Wum&Including militia C"Affardable Dwellitg Units 5x, r -okvam the Pm naome for ..} Percentage Affadabk Dwelling Undabshe Ld+I memberofdweOing weirs in the project and emerthat percentage aaBanm ®mmd aumtlS% (It'theprojedapoposed n.op tole oomuudd in multiple phases,the Afferdabk Dwe0ing tloita ist a;,Mz,� men be arrmucW as oftbe•�::'c.„rw<,".` Pert pbasferwbiedsapprovalisaooghG) inOrdertoinsurethattheAffordableDwe ' Unitsramain ... affordable for a period chat lea than 25 years,the developer&hall record such under See 29.326(3x4} protective mveoams a maybe required byme City Ift aoommimuat is being made to develop a alladfied peecemage of0ee total number of"Wing units for Type^A"and Type"B^-> capped boozing az defined by-the City ofFert Collins,ahai&m the home,a fo0owa: TT S Type"A" 3xTyoe"A"Units 'h:Jx Teal Units to no sae&lull the combined 6amu be gratcthm 30% Type"B^ I.OxTvoe"B"Unite ''!(+ Total Units Ifthe ode Or adjUtm property contains a historic N. ni or PI+cC a heoos may 6e earned for the following: & t 3% For P nodug err mitiguing outside iopumea adverse to its preservation e, co( g. vuo®emai,land us,atatlhat economic and socialfidorsk 3% ForasniogthanewahucWmwMbeinkmpngwiththaahamdcoftbe %yam 3% For proposing adaptive on orths hue7diog or plug that will lad to its �O�erPVca' naQsingmWumiu; appropriate aer .Ppreservationand irt kWmvemem n an moo Wit perdonorall ofthemfaed 'more puking structure a Oro P �iple fam7Y l%jb a provided uder I afol within the hu0rfing er In an elevated �( aaraorY neebthe prmaryatnatuna,ahem may be amdafo0wc 9% For providing 75%ormore eftbaparkng in a structure; . 6% For providing 50.74%ofthe parking nor tnuc4ne; ' 31A For providing 25.49%ofdw parking in a structure, ix Ift oomimnt a bung made bpovxkgViced amamatic fire ennguishng aynem for the . dwelling units,emer•beam m'10% Wofdas ,� tOPmg+d�ut4 safe and oonvooiem pededeian and bicyela oo®ediem henvemthe pojaa and avy ponds dumbed below,aladate the boom as fo0owc 5% Far to the neatest • ' ckysidewa@nod ' pathAaoq tY t4up distsooer a defioed'm this Density Chat S SG For tom M.bi a haul which a &ours b ertraverta the 'eel TOTAL �." KAUFMANABROAD January 5, 2001 Mr. Glen Colton Chairman Planning and Zoning Board City of Fort Collins PO Box 580 Fort Collins,CO 80522-0580 Subject: Request for Variance Provincetowne PUD Filing H,Affordable Housing Component Dear Mr.Colton: 1. This Request for Variance is filed on behalf of Kaufman&Broad Homes,hereinafter the "Applicant",pursuant to Article II, Section 29-526, Paragraph K of the City of Fort Collins Land Development Guidance System (LDGS). This is a request for a variance from Article II, Section 29-526 Density Chart H (r). The Applicant is proposing to construct for sale townhomes that will be priced as Affordable Housing and would be deed restricted for 25 years. The Applicant specifically requests a variance from the "30%" provision in the above stated section "r" and requests that this percentage be amended to "38%". 2. The LDGS provides a density bonus to the developer that builds affordable units. An affordable unit is one which is priced such that the housing cost,including utilities, for individuals with incomes of 80% or less of the Area Median Income (AMI) for Fort Collins is less than 30% of that amount. The I.DGS doses not recognize any difference between for rent and purchase units in calculating the maximum monthly housing amount. Additionally, all costs including utilities, insurance,mortgage insurance and HOA dues must be included in the maximum amount 3. The Applicant purchased the subject from its predecessor in 1997, subject to a contract for purchase dated April 1996. At that time,development of the property was subject to the Land Development Guidance System,utilized by the City of Fort Collins before the adoption of the current Land Use Code in March 1997. 4. Following the replacement of the I DIGS in 1997 with the Land Use Code,the City adopted a new policy that recognized a difference between rental units and for sale units. While retaining the 30%for rental units the City's Advanced Planning Department now permits 38% to be used for sale units. This change recognizes that in the case of for sale units several other costs are often included in mortgage payments or other mandatory payments that are not commonly included in the case of a rental unit. It is recognized that the failure to increase the allowable percentage would result in less dollars being available to pay the principle and interest in the case of for purchase units, and therefore result in the buyer purchasing less house than they could in relation to a comparable rental. KAUFMAN AND BROAD OF COLORADO. INC. 8401 EAST RELLEVIEW AVENUE SUITE 200 DENVER. COLOKAOU 80237 TEL 303 220.5000 FAX 303 773.1930 Request for Variance Provincetowne PUD Filing H,Affordable Housing Component Page 2 5. Because the LDGS does not recognize a difference between rental and purchase units, the result is to penalize the purchaser because their purchase dollar does not buy as much as the comparable renters. The City's current policy has corrected this inequity. 6. The Applicant is committed to providing affordable housing to the city,however,the use of 30% versus 38% is such a substantial difference that it makes it impossible for the Applicant to build and price this product in any fiscally responsible manner. 7. The City has recognized the financial difference between rental and for sale units and has endorsed the use of 38%in the case of for sale units. 8. The City has identified a need for affordable housing and has adopted a plan to increase the stock of affordable housing in the city. The Applicant's proposal is an important part of that Plan, and has been from the original sale of the property to the Applicant's predecessor. . Therefore,the Applicant hereby requests a variance based on Paragraph K (4) of the LDGS. The granting of the variance from the strict application of the provision will result in a substantial benefit to the City by reason of the fact that the proposed project will help satisfy a community need (affordable housing) and that the strict application would render the project practically infeasible. Respectfully submitted, z Glenn Nier Kaufman&Broad Homes cc: Cameron Gloss,AICP,Director of Current Planning Steve Olt,City Planner Maurice Head,Affordable Housing Planner John Duval,Deputy City Attorney PROVINCETOWNE AFFORDABLE HOUSING PLAN THIS AFFORDABLE HOUSING PLAN("Plan' is made effective as of 2001,by KAUFMAN AND BROAD OF COLORADO, INC., a Colorado corporation("Developer) as owner of a portion and option holder as to the remaining of a portion of the real property legally described on Exhibit A attached hereto and incorporated herein by this reference,(the "Property'). RECITALS A. Pursuant to that Agreement of Purchase and Sale of Real Property dated April 2, 1996, as amended ("Agreement'l,by and between The City of Fort Collins, Colorado, a municipal corporation("City), as Seller, and Developer, as Buyer, the City previously sold a portion of the Property to Developer commonly known as Filing No. 2 and the Developer holds an option to purchase the balance of the adjacent property, to be known as "Filing No. 3". Collectively, Filing No. 2 and Filing No. 3 consist of a mixed-use commercial and residential community commonly known as "Provincetowne." B. Pursuant to the Agreement and to the PUD Plan for'Provincetowne ("PUD") Developer has agreed that at least thirty percent (30%)of all residential units to be constructed in the Property be built as affordable housing units and that said units be restricted to remain as affordable housing for twenty-five(25) years, all as more particularly described in this Plan. C. Developer desires to submit this Plan with respect to the implementation of the covenants creating affordable housing units within the Property, and the City has reviewed this Plan and by signature below acknowledges its approval of the same. NOW, THEREFORE,Developer hereby submits the following plan: 1. Affordable Housing Units.. Developer will construct within the Property thirty percent (30%) of the total residential units finally approved for construction on the Property as units that are designed to be affordable (the"Affordable Units', in satisfaction of the Agreement and the PUD. The obligations of Developer contained herein may be satisfied in part by the construction of Affordable Units within the Property by Developer or by persons or entities to whom Developer conveys any portion of the Property. 2. Location and Desienation of Affordable Units. . a. Units. Filing No. 2 consists of three hundred thirty-one (331) residential units. One Hundred Forty-One(141) of those units shall be restricted as Affordable Units ("Filing 2 Affordable Units) and shall be separately subdivided condominium units. Exhibit B to I I:\Legal\WP\TLE\Provincetowne Affordable Housing PlanV7 doc this Plan contains.a list of the lots within Filing 2 on which the Filing 2 Affordable Units will be built. As the number of Affordable Units contained in Filing No. 2 exceeds thirty percent(30%) of the total number of residential units in Filing No. 2,the balance of the required Affordable Units for the Property("Remaining Affordable Units') shall be determined by multiplying the total number of residential units approved in the Property times thirty percent(30%) less the 141 Filing 2 Affordable Units The location of the lots in Filing 3 on which the Remaining Affordable Units are to be constructed("Remaining Affordable Units') have not yet been identified. The authority to identify the location of the Remaining Affordable Units within Filing No. 3 is hereby granted to Developer upon notice and consent of the Fort Collins Housing Authority("Authority')or its designee,which consent will not be unreasonably withheld by the Authority, provided that Developer complies with the Agreement, the PUD and this Plan. b. Covenants. Developer will,within thirty(30) days following the date that each Affordable Unit is created as a separately subdivided parcel of real estate,by recording of a condominium map or otherwise,subject each Affordable Unit to a recorded covenant in the form as attached hereto as Exhibit C and incorporated herein by this reference ("Master Covenants'). In the event no Affordable Unit is required on a particular lot, a Memorandum evidencing the same recorded in lieu of the Master Covenants will effect a full release of all units and property comprising such lot from the provisions of this Plan. A copy of such Master Covenants or Memorandum, as is applicable, shall be provided to the Authority promptly following the recording of same in the real property records of the County of La rimer, Colorado. 3. Initial Sales. a. Marketing. The Developer, in good faith collaboration with the Authority, will market the Affordable Units to specific demographic groups within the City. Criteria for choosing buyers of the Affordable Units with respect to initial sales to Developer's homebuyers ("Initial Sale") shall be as required in the Master Covenants. In the event more than one such eligible buyer is interested in purchasing the same Affordable Unit,Developer, in cooperation with the Authority, may consider other criteria designed to further the goals of the Plan (i.e., gross assets)in choosing a buyer,may elect a lottery process, or may implement another equitable election procedure (i.e., first come, first served). b. Initial Sales Price. The initial conveyance of each Affordable Unit by Developer to a purchaser(each an,"Initial Sale'.)shall be for a purchase price not to exceed(i) One Hundred Twenty Seven Thousand Seven Hundred Twenty Four and 80/100ths Dollars ($127,724.80) for the two bedroom Affordable Units, and(ii) One Hundred Forty Seven Thousand Seven Hundred Forty Five and 83/100ths ($147,745.83) for the three bedroom Affordable Units. In addition, if Developer is required to pay any commission to transactional or buyer real estate agents or brokers upon the Initial Sale of any Affordable Unit, Developer may increase the applicable Purchase Price for the Initial Sale by the amount to be paid to such real estate agents of brokers in connection with such Initial Sale. The Initial Sales Price for a two bedroom Affordable Unit has been based upon the Eligible Buyer's, as defined in the Master Covenants, total income equaling the 3 persons Median Income in Fort Collins for the year 2000 and the Initial Sales Price for a three bedroom Affordable Unit has been based upon the Eligible Buyer's total income equating the 4 person Median Income for Fort Collins for the year 2000. 2 I:\Legal\WP\TLE\Provincetowne Affordable Housing PlanV7 doc . Each such Initial Sales price to increase, however, with respect to Initial Sales occurring in the year(s) following the year of this Agreement by the greater of(i)percentage increase, compounded annually, of the Hensel Phelps construction cost index for Denver, Colorado, from the year 2000 to the year in which the closing of the Initial Sale occurs, or(ii)the increase, if any, in the 3 person and 4 person, respectively, Median Income for the City of Fort Collins for the year in which the closing of the Initial Sale actually occurs. 4. Miscellaneous. a. Binding Effect. This Plan shall be binding upon and inure to the benefit of Developer and the City and their respective successors and assigns. b. Entire Plan. This Plan,together with any exhibits or documents referred to in or supplied pursuant to the terms of this Plan(all of which are incorporated in this Plan by this reference), contains the entire affordable housing plan relative to Provincetowne and supersedes any and all prior oral representations,covenants, understandings, memorandums or other agreements between the parties or their agents. C. Conveyance of Lots. The City acknowledges that Developer may convey certain parcels of property within Provincetowne to others for development, and that, in the event . of such conveyance, the new owners of the conveyed parcel shall become solely responsible for Developer's obligations under this Plan with respect to such parcels of property conveyed. d. Section Headings. The section headings are inserted only for convenient reference and do not define, limit or prescribe the scope of this Plan. e. Governing Law. This Plan shall be construed under the provisions of Colorado law. f. Severability. If any terms, covenants or provisions of this Plan shall be illegal or unenforceable for any reason, the same shall not invalidate any other terms, covenants or provisions, and all of the remaining terms, covenants and provisions shall remain in full force and effect. g. Amendment. This Plan may be amended,modified or rescinded only in writing as executed by Developer and the City h. Assignment. All obligations arising under this Plan shall burden Developer as provided herein and its successors and assigns. All rights of Developer and the City as provided herein shall inure to the benefit of Developer and the City and their respective successors and permitted assigns, as follows: . (i) It is contemplated that the City may sometime in the future assign its enforcement rights under this Plan to the Authority or another existing or to-be-formed entity which has as its primary purpose the development or management of affordable housing projects 3 IdLegal\WP\TLE\Provincetow a Affordable Housing PIanV7 doc in the City or is otherwise qualified to undertake the responsibilities described in this Plan. Any such assignment shall be in writing delivered to Developer, and the assignee so named in such instrument shall in all instances replace references to the City(and at the City's express direction, the Authority) in this Plan and in the attached Master Covenants. (ii) Developer may assign any of its rights under this Plan to an assignee specifically delegated in a writing executed by Developer and approved in advance by the City. EXECUTED on the dates shown below. DEVELOPER: KAUFMAN AND BROAD OF COLORADO, INC., a Colorado corporation By: Title: Date: a 1:\Legal\WP\TLE\Pmvincetowne Affordable Housing PIanV7.doc ACCEPTANCE BY THE CITY OF FORT COLLINS COLORADO The foregoing Provincetowne Affordable Housing Plan, and its terms are hereby approved, agreed to, adopted and declared by the City of Fort Collins, Colorado CITY OF FORT COLLINS, COLORADO By: Title: Date: s IALezal\wP\TLE\Provincetowne Affordable Housing PlanV7 doc EXHIBIT A LEGAL DESCRIPTION (see attached) • • 6 1ALe¢aIMPMETrovincetowne Affordable Kousina PlanV7 doc EXHIBIT B INITIAL PLAN OF AFFORDABLE HOUSING UNITS The lots and buildings described hereinafter refer to that certain subdivision map for Provincetowne Filing No. 2, to be recorded in the real property records of Larimer County, Colorado on or after the date hereof. Filing 2 Affordable Units Number of Lot Building Residential Units* Total 7 I:\Leeal\WP\TLE\Provincetow a Affordable Housing PlanV7.doc EXHIBIT C MASTER COVENANTS (See attached) s L\Legal\WP\TLE\Pm ncetowne Affordable Housing PlanW doc MASTER COVENANT FOR THE OCCUPANCY AND RESALE OF UNITS , PROVINCETOWNE THIS MASTER COVENANT FOR THE OCCUPANCY AND RESALE OF UNITS Provincetowne(the"Covenant's is made and entered into this_ day of . 2001,by KAUFMAN AND BROAD OF COLORADO,INC. a Colorado corporation, (the"Declarant'l, and enforceable by the CITY OF FORT COLLINS, COLORADO, a municipal corporation, or its designee(the"City"). WITNESSETH: WHEREAS,Declarant owns the real property described as follows: Condominium Units_ ,Provincetowne, according to the Condominium Declaration for Provincetowne recorded in Book _at Page_, under Reception No. and the Condominium Map of Provincetowne recorded in Book_at Page_, under Reception No. , in the real estate records of the County of Larimer, Colorado. • (collectively, the "Affordable Units" and each such unit, individually, a"Affordable Unit"). WHEREAS, Provincetowne is subject to a certain Provincetowne Affordable Housing Plan dated 2001 by Declarant to the City(the "Affordable Housing Plan') and Declarant has executed and recorded this Covenant in satisfaction of its obligations with respect to Provincetowne arising under the Affordable Housing Plan. WHEREAS, Declarant agrees to restrict the acquisition or transfer of the Affordable Units to Eligible Buyers as that term is defined in this Covenant. In addition, the Declarant agrees that this Covenant shall constitute a resale restriction setting forth the maximum sales price for which each Affordable Unit may be sold,the amount of appreciation and the terms and provisions controlling the resale of the Affordable Units should a subsequent owner of an Affordable Unit desire to sell his or her interest in the Affordable Unit at any time after the date of this Covenant. Finally,by this Covenant,the Affordable Units shall be restricted against use and occupancy inconsistent with this Covenant. NOW,THEREFORE, for consideration hereby acknowledged by Declarant, Declarant hereby represents, covenants and declares as follows: 1. Definitions. The following terms shall have the following meanings when used in this Covenant: • a. "CPI-U"means the United States Department of Labor(Bureau of Labor Statistics) Consumer Price Index for All Urban Consumers for the consolidated metropolitan 9 IALeaal\WP\TLE\Provincetowne Affordable Housing Pl=V7 doc statistical area which includes the City. In the event that the CPI-U is substantially changed, re- named, or abandoned by the United States Government, then it its place shall be substituted the index established by the United States Government that most closely resembles the CPI-U. b. 'Base CPI-U"means the CPI-U issued for the month ending prior to a Acquisition Date. C. "Comparison CPI-U'means the CPI-U issued for the same month as the Base CPI-U in each year following the calendar year in which the Base CPI-U occurred. d. "Eligible Buyer"means a natural person;family or household with a Maximum Gross "--" Monthly Income such that the Proposed Monthly Housing Expense for a Maximum Loan at the Market Interest Rate does not exceed 38%of such Maximum Gross Monthly Income. This definition of Eligible Buyer is to be used solely to calculate the maximum income level of buyers eligible to purchase an Affordable Unit and shall not be construed as in any way limiting the type of lending program or loan terms which an Eligible Buyer may accept to finance the purchase of an Affordable Unit. A person, family or household who at the time of purchase qualified as a Eligible Buyer shall continue to be deemed so qualified until such time as the Affordable Unit is Transferred. The following is a hypothetical example of the method of determining an Eligible Buyer, based on the identified assumptions and estimates, as follows: Assumptions: Initial Sales Price 2 Bedroom Unit: $ 127,724.80 Loan Amount(97%): $ 123,893.05 Interest Rate: 8% Monthly Housing Expenses: Monthly Principal and Interest: $ 909.08 Est. Monthly H.O.A.Dues 60.00 Est. Gas 50.00 Est.Property Insurance 25.00 Est. Water and Sewer 30.00 Est. Monthly Real Estate Taxes 130.00 Est. Monthly Electrical 35.00 Est. Private Mortgage Insurance 45.00 Total : $ 1,284.08 Monthly Housing Expenses Maximum Monthly Income: $1,426.58 _ .38 =$ 3,379.16 Maximum Annual Income to be an Eligible Buyer: $ 3,379.16 x 12=$40,549.92 io lALegal\WP\TLE\Provincetowne Affordable Housing PlanV7 doc True total income of Ehizible Buyer: $40 549 92 _ 80% =150 687 40 e. "Market Interest Rate"means the Fannie Mae yield on 30-year mortgage commitments (priced at par) for delivery within thirty(30) days, rounded up to the nearest .125 ------- of 1.00%as of the first business day of the month(printed in the Wall Street Journal). f. "Maximum Gross Monthly Income"means 80%of the pre-tax income from all acceptable sources as defined in the Fannie Mae Seller/Servicer Guide and shall be verified in one or more of the following methods: i. Obtain two (2)paycheck stubs from the proposed buyer's two (2) most recent pay periods. I Obtain a true copy of an income tax return from proposed buyer for the most recent tax year in which a return was filed. iii. Obtain an income verification from the employer of the proposed buyer. iv. Obtain an income verification certification from the Social Security Administration and/or the Colorado Department of Social • Services if the proposed buyer receives assistance from such agencies. V. Obtain an alternate form of income verification reasonably requested by the Authority. g. "Maximum Loan"means 97%of the purchase price for the applicable Affordable Unit. h. "Owner" means the Declarant and any subsequent buyer, devisee, transferee, grantee, owner or holder of title of any Affordable Unit. i. "Provosed Monthly Housing Exuense"means the total of the principal and interest, private mortgage insurance,homeowners association dues, 1/12th of estimated real property taxes and estimated gas, property insurance,water and sewer and electricity expenses. j. "Transfer"means any sale, assignment or transfer that is voluntary, involuntary or by operation of law(whether by deed,contract of sale, gift, devise, bequest, trustee's sale, deed in lieu of foreclosure, or otherwise) of any interest in an Affordable Unit, including,but not limited to a fee simple interest, a joint tenancy interest, a tenancy in common, a life estate, or any interest evidenced by a land contract by which possession of an Affordable Unit is transferred and the Owner obtains title. • k. "Acouisition Date"means the date of Transfer of an Affordable Unit. tt 1:\Legal\WPCPLE\Provincetowne Affordable Housing PlanV7 doe 1. "Contract Date"means the date of contract for the proposed Transfer of an Affordable Unit to a new Owner. 2. Transfer Subiect to Covenant. Declarant and each subsequent Owner of each of the Affordable Units hereby covenants and agrees that the Affordable Units shall be used, occupied and Transferred strictly in conformance with the provisions of this Covenant for so long as this Covenant remains in force and effect with respect to each such Affordable Unit. Each Owner who takes title from Declarant and every subsequent Owner of each Affordable Unit shall execute and record the Memorandum of Acceptance attached hereto as Exhibit A (completed with the appropriate information relating to the Affordable Unit and such Owner) with such Owner's deed to his or her Affordable Unit in the real property records of the County of Larimer, Colorado. 3. Use and Occupancy. An Owner(other than Declarant), in connection with the purchase and ownership of an Affordable Unit,must: a occupy the Affordable Unit as his or her sole, exclusive and permanent place of residence during the time that such Affordable Unit is owned by such Owner. A permanent residence shall mean the home or place in which one's habitation is fixed and to which one, whenever he or she is absent,has a present intention of returning after a departure or absence therefrom,regardless of the duration of the absence. In determining what is a permanent residence,the following circumstances relating to the Owner shall be taken into account: business pursuits, employment, income sources, residence for income or other tax purposes, age, marital status,residence of parents, spouse and children, if any, Iodation of personal and real property, and motor vehicle registration; b. not engage in any business activity on or in such Affordable Unit, other than permitted under applicable zoning ordinances and the condominium declaration governing the Affordable Unit; and C. not permit any use or occupancy of such Affordable Unit except in compliance with this Covenant during the period of such Owner's ownership of the Affordable Unit. 4. Initial Sale Price. The initial Transfer of each Affordable Unit by Declarant to a purchaser(each an, "Initial Sale') shall be for a purchase price not to exceed (a) One Hundred Twenty Seven Thousand Seven Hundred Twenty Four and 80/100ths Dollars ($127,724.80) for a two bedroom Affordable Unit plus any brokerage commission, if any,to be actually paid by Declarant upon the Initial Sale, and(b) One Hundred Forty Seven Thousand Seven Hundred Forty Five and 83/100ths Dollars ($147,745.83) plus any brokerage commission, if any,to be actually paid by Declarant upon the Initial Sale, for a three bedroom Affordable Unit. The Initial Sales Price for a two bedroom Affordable Unit has been based upon the Eligible Buyer's total income equaling the 3 persons Median Income in Fort Collins for the year 2000 an the Initial Sales Price for a three bedroom Affordable Unit has been based upon the Eligible Buyer's total income equaling the 4 person Median Income for Fort Collins for the year 2000. , Each such Initial Sales price to increase,however, with respect to Initial Sales occurring in the year(s) 12 1:\LeeaMPME\Provincetowne Affordable Housing PlanW doc . following the year of this Agreement by the greater of(i) percentage increase, compounded, of the Hensel Phelps construction cost index for Denver, Colorado, from 2000 to the year in which the closing of the Initial Sale occurs, or(ii) the increase, if any, in the 3 person and 4 person, respectively,Median Income for the City of Fort Collins for the year in which the closing of the Initial Sale actually occurs. 5. Maximum Sales Price. a. During the time that this Covenant is in effect,but excluding the Transfer pursuant to the Initial Sale, no Affordable Unit may be Transferred for more than an amount calculated in accordance with this Subsection 5.a(the"Maximum Sales Price), as follows: (i) Start with the purchase price paid for the Affordable Unit by the selling Owner on such Owner's Acquisition Date of the Affordable Unit(the "Prior Purchase Price'), which Prior Purchase Price may include all reasonable and customary expenses of the purchase incurred at the time of purchase by the selling Owner as evidenced by a title company settlement sheet; (ii) For each year from the selling Owner's Acquisition Date until the • date of closing of the selling Owner's Transfer of the Affordable Unit, multiply the Prior Purchase Price by the greater of(A) the annual percentage increase in the CPI-U by comparing the Base CPI-U to Comparison CPI-U, or(B)three percent(3%). Any such increase shall be prorated for any partial years.and shall not be compounded; (iii) Each such year add the product of the multiplication described in (ii) above to the Prior Purchase Price; and (iv) Add the amount of any real estate brokerage commission, if any, to be actually paid by the selling Owner upon the Transfer of the Affordable Unit. THE MAXIMUM SALES PRICE IS ONLY AN UPPER LIMIT ON PRICE APPRECIATION FOR EACH AFFORDABLE UNIT,AND NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION, WARRANTY OR GUARANTEE BY THE DECLARANT OR THE CITY THAT UPON TRANSFER THE OWNER SHALL OBTAIN THE MAXIMUM SALES PRICE. FURTHER,NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PREVENT AN OWNER FROM SELLING A UNIT FOR LESS THAN THE MAXIMUM SALES PRICE. b. A selling Owner shall not permit any prospective buyer to assume any or all of the selling Owner's customary closing costs nor accept any other consideration which would cause an increase in the purchase price above the Maximum Sales Price, and all such additional consideration, in any form, shall be considered by the Fort Collins Housing Authority ("Authority') when determining whether the purchase price for the Affordable Unit exceeds the Maximum Sales Price. 13 BUgaMPULETrovincetowne Affordable Housing PlanV7 doc C. EXamnle. The following is a hypothetical calculation of the Maximum Sales Price associated with a three bedroom Affordable Unit: $148,000.00 as Previous Purchase Price(including customary expenses of purchase) on December 31, 2001 +4,440.00 (3%increase for year 2002) +2.220.00 (3%increase for 6 months in year 2003) for planned June 30, 2003 sale $152,440.00 + 10,607.80 (7%brokerage commission) $163.110.80 Maximum Sales Price for June 30,2002 sale 6. Transfer of Affordable Unit. a. In the event that an Owner(other than Declarant, it being understood and agreed that the provisions of this Section 6 shall not apply to Declarant's Initial Sales) desires to sell the Affordable Unit owned by such Owner,the Owner shall provide notice to the Authority of such Owner's intent to sell at least ten(10) days prior to engaging a broker to list the Affordable Unit for sale. The Authority may keep a list of interested purchasers and may provide same to any selling Owner in the Authority's discretion. b. After providing the notice required in Subsection 6.a, the selling Owner may list the Affordable Unit for sale with a real estate agent licensed in the State of Colorado or the selling Owner may market the Affordable Unit as a so-called"for sale by owner,"and may enter into a contract for the sale of the Affordable Unit upon such terms and conditions as the selling Owner shall, in the selling Owner's sole discretion, deem acceptable,provided,however, that: (i) the purchase price shall not exceed the Maximum Sales Price; (ii) the selling Owner must believe in good faith that the purchaser is an Eligible Buyer and that the purchase price does not exceed the Maximum Sales Price; and (iii) the contract must state as a contingency that the purchaser will submit the application described in Subsection 6.c below to the Authority within three (3) days after contract acceptance, and that the selling Owner's obligations under the contract are expressly contingent upon the Authority's determination that the purchaser is an Eligible Buyer and that the purchase price does not exceed the Maximum Sales Price as evidence by issuance of the Certificate described in Subsection 6.c below. C. Within three (3) days after contract acceptance (defined as the date of last execution of the contract by the purchaser or the selling Owner), the purchaser shall complete and submit an application form to the Authority requesting a determination that the purchaser is an Eligible Buyer and that the purchase price does not exceed the Maximum Sales Price. The 14 1ALegal\WP\TLE\ProvincetMe Affordable Housing P1anW doc Authority shall promulgate the form of such application, which shall request only such information as is necessary to determine whether the purchaser is an Eligible Buyer and whether the purchase price exceeds the Maximum Sales Price. The Authority shall make its determination within ten(10)days after receipt of the completed application, as evidenced either by(A) the issuance of a certificate, signed by the Authority and in recordable form, stating that the purchaser is an Eligible Buyer,the amount of the purchase price and that the purchase price does not exceed the Maximum Sales Price (the"Certificate'); or(B)delivering a notice to seller and purchaser that a Certificate cannot be issued and stating the reason(s) therefor. Failure by the Authority to crake its determination and deliver the Certificate or the notice as described above within the 10-day period will be deemed an approval of the purchaser and the purchase price, and the Authority shall thereafter issue a Certificate with respect to the transaction immediately upon request therefor by the selling Owner or the purchaser. Delivery of the Certificate shall not be construed as a representation or warranty that the Eligible Buyer will in fact qualify for purchase money financing for the acquisition of the Affordable Unit. d. Upon the Transfer of the Affordable Unit, the Certificate shall be recorded in the real estate records of the County of Larimer, Colorado, along with the deed for the Affordable Unit, and if the Certificate is not so recorded,then the Transfer shall be voidable at the option of the City. 7. No Rental of Affordable Units. An Owner may not rent such Owner's Affordable Unit for any period of time. The requirements of this Section shall not preclude an Owner from sharing occupancy of the Affordable Units or Affordable Unit with non-owners on a rental basis provided Owner continues to reside in the Affordable Unit and to meet the obligations contained in this Covenant. 8. Remedies in the Event of Breach. a. In the event that the Authority has reasonable cause to believe that an Owner is violating the provisions of this Covenant, the Authority,by its authorized representative, may inspect the Affordable Unit owned by such Owner between the hours of 8:00 a.m. and 5:00 p.m.,Monday through Friday, after providing such Owner with no less than twenty-four(24)hours advance written notice. b. In the event a violation of this Covenant is discovered, the Authority shall send a notice of violation to the Owner detailing the nature of the violation and allowing the Owner fifteen(15)days to cure such default. Said notice shall state that the Owner may request a hearing before the City within fifteen(15) days to determine the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen(15) day period, the Owner shall be considered in violation of this Covenant. If a hearing is held before the City, the decision of the City based on the record of such hearing shall be final for the purpose of determining if a violation has occurred. . C. There is hereby reserved to the City the right to enforce this Covenant, including any and all remedies provided by law for breach of this Covenant or any of its terms, including, but not limited to, disgorgement of profits received by the selling Owner over the 15 l:\Le¢aAWP\TLE\Provincetow a Affordable Housin¢WI 111 doc Maximum Sales Price, specific performance of this Covenant, and/or a mandatory injunction requiring sale of an Affordable Unit by the Owner thereof. The costs of such sale shall be assessed against the proceeds of the sale with the balance being paid to the Owner. In the event the City and/or Authority resort to litigation with respect to any or all provisions of this Covenant and the City prevails, said parties shall be entitled to recover damages and costs, including reasonable attorneys' fees. d. In the event any Affordable Unit is transferred in a manner that is not in full compliance with the terms and conditions of this Covenant, such Transfer shall be wholly null and void and shall confer no title whatsoever upon the purported transferee. Each and every Transfer of an Affordable Unit, for all purposes, shall be deemed to include and incorporate by this reference the covenants herein contained,regardless of reference therein to this Covenant. 9. Release of Covenant in Foreclosure: City's Option to Buy. a. The City,pursuant to the process and rights described in Subsection 9.b below (the"Option to Buy' , shall release this Covenant of record and waive its ability to enforce the provisions of this Covenant with respect to a particular Affordable Unit in the event of foreclosure or the acceptance of a deed in lieu of foreclosure with respect to such Affordable Unit by a holder of a first priority deed of trust against the Affordable Unit(the"First Lien Holder's (which shall be the only party entitled to take the Affordable Unit free of this Covenant pursuant to the provisions of this Section 9),provided that the First Lien Holder taking title to such Affordable Unit by foreclosure or acceptance of a deed in lieu of foreclosure,pursuant to the terms and conditions of the Option to Buy, grants to the Authority, the option to acquire the Affordable Unit within thirty(30) days after conveyance of title to the Affordable Unit by public trustee's deed or deed in lieu of foreclosure. In such event that the Authority or its designee exercises its Option to Buy and acquires a particular Affordable Unit the Authority or its designee may sell the Affordable Unit to Eligible Buyers, or rent the Affordable Unit until such time that the Affordable Unit can be sold to an Eligible Buyer in accordance with this Covenant. b. In the event of(A) a foreclosure by the First Lien Holder(including assigns of the First Lien Holder), and subject to the issuance of a public trustees deed to the First Lien Holder following the expiration of all statutory redemption rights,or(B)the taking by the First Lien Holder of title to the Affordable Unit by deed in lieu of foreclosure and the giving of notice by the First Lien Holder to the Authority as provided in Paragraph(i)below, the Authority shall have the option to buy the Affordable Unit which shall be exercised in the following manner: (i) The First Lien Holder shall give such notice to the Authority as is required by law for lien holders in the foreclosure proceeding to the address of the Authority as provided in this Covenant with a copy to the City's attorneys' office. In the event that the First Lien Holder takes title to the Affordable Unit pursuant to a deed in lieu of foreclosure, the First Lien Holder shall give notice to the Authority with a copy to the City upon the vesting of title to the Affordable Unit in First Lien Holder. 16 19Le¢aAWRTLETrovincetowne Affordable Housin¢PlanV7.doc • (ii) The Authority shall have 30 days after (A) in the case of foreclosure, issuance of the public trustee's deed, or(B) in the case of a deed in lieu of foreclosure, the Authority's receipt of the notice required in such event pursuant to Paragraph (i) above, in which to exercise this Option to Buy by tendering to the First Lien Holder, in cash or certified funds, an amount equal to the redemption price which would have been required of the Owner or any person who might be liable upon a deficiency on the last day of the statutory redemption period(s) and any additional reasonable costs incurred by the First Lien Holder during the option period which are directly related to the-foreclosure-or deed in-lieu-of foreclosure. (iii) Upon receipt of the option price,the First Lien Holder shall deliver to the Authority, a special warranty deed conveying fee simple title in and to the Affordable Unit to the Authority, in which event this Covenant shall remain valid and in full force and effect. The First Lien Holder shall convey only such title as it is received through the public trustee's deed or the deed in lieu of foreclosure and will not create or participate in the creation of any additional liens or encumbrances against the Affordable Unit following issuance of the ;public trustee's deed or the deed in lieu of foreclosure to the First Lien Holder. The First Lien Holder shall not be liable for any of the costs of conveyance to the Authority or its designee. (iv) In the event that the First Lien Holder is issued a public trustee's deed or takes title to the Affordable Unit pursuant to a deed in lieu of foreclosure and thereafter • offers the Option to Buy to the Authority and the Authority does not exercise the option, as provided herein, the City shall cause to be recorded in the records of the Clerk and Recorder of the Authority and County of Larimer, Colorado, a full and complete release of this Covenant as it affects the Affordable Unit only. Such release shall be placed of record within thirty (30) days after demand therefor by the First Lien Holder following expiration of the option and a certified copy of the release shall be mailed to the First Lien Holder upon its recordation. (v) If any of the terms, covenants, conditions, restrictions, uses, limitations, obligations or options created by the Option to Buy shall be unlawful or void for violation of: (A) the rule against perpetuities or any analogous statutory provisions, (B) the rule restricting restraints on alienation, or(C) any other statutory or common law rules imposing like or similar time limits,then such provision shall continue only for the period of the lives of the current duly elected and seated City Council of the City,their now living descendants, if any, and the survivor of them,plus twenty-one (21)years. 10. Covenant Running with Land: Duration of Covenant. a. The terms of this Covenant shall constitute covenants running with the Affordable Units, as a burden thereof, for the benefit of, and shall be specifically enforceable by the City and its successors and assigns, as applicable,by any appropriate legal action including but not limited to specific performance, injunction, reversion or eviction of non-complying Owners and/or occupants. b. This Covenant shall terminate, expire and be of no further force and effect with respect to a particular Affordable Unit following the first Transfer of said Affordable Unit rr 1:\Lega1\WP\TLE\Provincetowne Affordable Housing Plan V7 doc that occurs more than twenty-five (25) years after the date that this Covenant is placed of record in the Office of the Clerk and Recorder of the County of Latimer, Colorado. 11. Miscellaneous. a. Notices. Any notice, consent or approval which is required or permitted to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with posting fully prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Covenant. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless otherwise notified in writing: To Declarant: Kaufman and Broad of Colorado, Inc. 8401 East Belleview Avenue, Suite 200 Denver, Colorado 80237 Attn: Provincetowne Project Manager with copy to: Kaufman and Broad of Colorado, Inc. 8401 East Belleview Avenue, Suite 200 Denver, Colorado 80237 Attn: Regional Legal Counsel To the City: City of Fort Collins ' Fort Collins, Colorado Attn: City Manager To Authority: Fort Collins Housing Authority Fort Collins, Colorado with a copy to: City of Fort Collins Attorney's Office Fort Collins, Colorado To the Owner: To be determined pursuant to the Memorandum of Acceptance (as shown on Exhibit A) recorded with respect to each Transfer of an Affordable Unit. 18 19Legal\WP\TLE\Provincetowne Affordable Housing Plm doc b. Exhibits. All exhibits attached hereto are incorporated herein and by this reference made a part hereof. C. Severabiliri. Whenever possible, each provision of this Covenant and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of such documents. d. Choice of Law. This Covenant and each and every related document are to be governed and construed in accordance with the law of the State of Colorado. e. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. f Section Headings. Paragraph or section headings within this Covenant are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. g. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Covenant shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Covenant. However, the'party for whose benefit a condition is inserted shall have the unilateral right to waive such condition. h. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any and all genders and vice versa and the use of the singular shall include the plural and vice versa. i. Personal Liabiliri. Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. j. Further Actions. The parties to this Covenant agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Covenant or any restriction or document relating hereto or entered into in connection herewith. k. Modifications. The parties to this Covenant agree that any modifications of this covenant shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Larimer County, Colorado. 1. Owner and Successors. The term Owner shall mean the person or persons who shall acquire an ownership interest in an Affordable Unit in compliance with the terms and provisions of this Covenant; it being understood that such person or persons shall be deemed an Owner hereunder only during the period of his, her or their ownership interest in the Affordable 19 1:\Legal\WP\TLE\Provincetov Affordable Housing PlanV7 doc Unit and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. DECLARANT: KAUFMAN AND BROAD OF COLORADO, INC., a Colorado corporation By: Title: Date: STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this_day of 2000,by as of Kaufman and Broad of Colorado, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: [SEAL] Notary Public ACCEPTANCE BY THE CITY OF FORT COLLINS, COLORADO The foregoing Master Covenant for the Occupancy and Resale of Units Provincetowne, and its terms are hereby approved, agreed to, adopted and declared by the City of Fort Collins, Colorado CITY OF FORT COLLINS, COLORADO By: Title: Date: 20 I:\Leeal\WP\TLE\Provincetow a Affordable Housin¢PIanV7 doc . STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this_day of 2000,by as of The City of Fort Collins, Colorado, a municipal corporation. Witness my hand and official seal. My commission expires: [SEAL] Notary Public • 21 l:\Legal\wP\TLE\Provincetowne Affordable Housing PlanV7 doc . EXHIBIT A Memorandum of Acceptance (See attached) 22 I:\Legal\WP\TLE\Provincetowne Affordable Housing PlanV7 doe . MEMORANDUM OF ACCEPTANCE OF MASTER COVENANTS FOR THE OCCUPANCY AND RESALE OF UNIT , PROVINCETOWNE WHEREAS, the Buyer, is purchasing from the Seller, at a price of$ a condominium unit described as: Condominium Unit Provincetowne, according to the Condominium Declaration for Provincetowne recorded in Book _at Page_,under Reception No. and the Condominium Map of Provincetowne recorded in Book at Page_,under Reception No. , in the real estate records of the County of Larimer, Colorado. WHEREAS, the Seller of the Unit is requiring as a prerequisite to the sale transactions, that the Buyer acknowledge and agree to the terms, conditions and restrictions found in that certain instrument entitled, "Master Covenant for The Occupancy and Resale of Units • Provincetowne," recorded on 2000, in Book_at Page —under Reception No. in the real property records of the County of Larimer, Colorado, a copy of which is attached hereto as Exhibit A (the "Master Covenant"). NOW, THEREFORE, as an inducement to the Seller to sell the Unit, the Buyer: 1. Acknowledges that Buyer has carefully read the entire Master Covenant, has had the opportunity to consult with legal and financial counsel concerning the Master Covenant and fully understands the terms, conditions, provisions, and restrictions contained in the Master Covenant. Resale may be restricted and profits may be required to be disgorged upon breach of the Master Covenant. 2. Notice to Buyer, pursuant to Subsection 11(a) of the Master Covenant, should be sentto: 3. Directs that this memorandum be placed of record in the real estate records of the County of Larimer, Colorado. • IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year first above written. 23 1A egal\WP\TLETmvincetowne Affordable Housing PlmW doc BUYERS: STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this_day of 2001,by as Witness my hand and official seal. My commission expires: [SEAL] Notary Public 24 IALeeal\WP\TLE\Provincetow a Affordable Housine PlanW.doc . EXHIBIT A TO MEMORANDUM OF ACCEPTANCE (See attached copy of recorded Master Covenant) 25 IALee WPMETmvincetowne Affordable Housing PlmV7 doc TSEPrSeptember 3, 1999 ;: Ms. Wanda M. Krajicek City Clerk City of Fort Collins 300 LaPorte Avenue Fort Collins, Colorado 80522 NOTICE OF APPEAL TO THE HONORABLE CITY COUNCIL: NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 248 of the Code of the City of Fort Collins the undersigned parties-in-interest (hereinafter "Appellants') appeal the decision of the Planning and Zoning Board of August 5, ^to' pr ve the Planned Unit Development - Preliminary • Plan, commonly referred to as Provinceto e PWX reliminary, #73-82T and to the granting of a variance to the City of Fort Collins Sol ce. Parties-In-Interest The undersigned herein acquire their standing to prosecute this Appeal as parties-in-interest pursuant to Section 246(3) and(5)of the Code of the City of Fort Collins. The parties-in-interest are identified for the purposes of this Appeal as follows: David G. Evans Doug Sparks Mark Menke 6806 Deerhurst Court 900 Deerhurst Circle 901 Deerhurst Circle Fort Collins, CO 80525 Fort Collins, CO 80525 Fort Collins, CO 80525 (970) 223-7957 (970)223-9863 (970) 204-1027 Pursuant to the requirements of Section 2-49(5) of the Code of the City of Fort Collins, all mailing of notices subject to that Section by the City shall be sent to: David G. Evans 6806 Deerhurst Court Fort Collins, CO 80525 (970) 223-7957 cc. C A Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary, #73-82T September 3, 1999 Page 2 Grounds Of Appeal The following grounds of appeal set forth allegations of error in accordance with the provisions of Section 248 (b)(1), Section 248(b)(2)a. and Section 248(b)(2)b. of the Code of the City of Fort Collins. I. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager of the Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996, was specifically reserved by Section 4 of Ordinance No. 41, 1996, to the Mayor and not the City Manager. The execution of said Purchase Agreement by the City Manager violated the specific requirements of Section 4 of Ordinance No. 41, 1996 as well as the requirements of Section 23-111(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No. I r 41, 1996, which authorized the sale of o f r virn wne Portner Special Improvement District #81 and the Fort Collins South Improvement District 986 to PrideMark t Development Company, LLC. Section 2 of 1 specifically approved the provisions of an Agreement of Purchase and Sale of Real Property by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. Section 4 of Ordinance No. 41, 1996, provides, "That' the Mayor be, and hereby is, authorized to execute the instruments of conveyance and other documents necessary for the City to sell and convey the property to PrideMark pursuant to the terms and conditions of the Agreement." To be valid, it was specifically required by Section 4 that the Purchase Agreement be executed by the Mayor. The Purchase Agreement was executed by the City Manager. Section 4, nor any other provision of law empowered the City Manager to execute such an agreement on behalf of the City of Fort Collins,therefore,the Purchase Agreement is void. The full of Ordinance No. 41, 1996 is incorporated by this reference as though fully set forth herein It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the real property which is the subject of this Appeal as the contract purporting to vest such an interest in the Applicant was void. Contracts executed by municipal corporations in which there is a failure to comply with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock Land Bank of Denver, 118 P. 2d 460; Town of Durango v. Pennington, 8 Colo. 257; Cherry Creek Aviation, Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also,there can be no ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and where the contract is required to be made in a specified manner, the observance of the same formalities and provisions necessary to be complied with in the making of a valid contract are required. Town of Durango V. Pennington, 8 Colo. 257. Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary, #73-82T September 3, 1999 Page 3 II. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, execution by the City Manager, on or about April 12, 1996, of an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum") by and between the City of Fort Collins and Pridemark Development Company, LLC, adding Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996, was void, in that the First Addendum could not, as a matter of law,modify an executory agreement. a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No. 41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement District 481 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark Development Company, LLC. Section 2 of Ordinance 41, 1996, specifically approved the provisions of an Agreement of Purchase and Sale of Real Property(hereinafter "Purchase Agreement") by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. Pursuant to Paragraph 21A. the Purchase Agreement was made expressly contingent upon the City Council approving the Purchase Agreement by Ordinance No. 41, 1996, which ordinance must be passed by the City Council on second reading on or before April 16, 1� a law ten (10) days thereafter as provided in the City Charter. At the time of the a cu ' o e Addendum, the Purchase Agreement was executory and therefore could not be modi as set o the First Addendum. As provided in the Charter of the City of Fort Collins, Ordinance No. 41, 1996 was not legally effective until ten (10) days after its adoption by the City Council after the second reading, therefore, the act of the City Manager of executing the First Addendum was invalid and any modification to the Purchase Agreement was void. The full text of the foregoing summary of Paragraph 21A of the Purchase Agreement as well as the Purchase Agreement is incorporated by this reference as though fully set forth herein. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the real property which is the subject of this Appeal as the contract purporting to vest such an interest in the Applicant was void. Contracts executed by municipal corporations in which there is a failure to comply with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock Land Bank of Denver 118 P. 2d 460; Town of Durango v. Pennington, 8 Colo. 257; Cherry Creek Aviation, Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also, there can be no ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and where the contract is required to be made in a specified manner, the observance of the same formalities and provisions necessary to be complied with in the making of a valid contract are required. Town of Durango v. Pennington, 8 Colo. 257. Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,473-82T September 3, 1999 Page 4 III. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to City Manager of the power to sell the real property pursuant to Section 5 of Ordinance No. 41, 1996, was an improper delegation of legislative discretion which violated the requirements of Section 23-I11(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No. 41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to Pridemark Development Company, LLC. Section 2 of Ordinance No. 41, 1996, specifically approved the provisions of an Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement') by and between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. The pertinent terns and conditions of said sale were set forth in the recitals of Ordinance No. 41, 1996, which, in summary provided that, Pridemark Development Company, LLC, would purchase the subject property p for a total purchase price of One Million Eight ZnentOal undred Thousand Dollars ($1,800,000) to be paid over five years c follows: (1) eight i 0 downeW35.34 0 installment payment due one year after the date of closing, and (3) eight installm f due semi-annually thereafter. The full text of the foregoing summary of the pd conditions is found in Paragraph 4 A, 4B, 4C and 4D of the Purchase Agreement which said Purchase Agreement is incorporated by this reference as though fully set forth herein. t Prior to the official enactment of Ordinance No. 41, 1996 by the City Council of the City of Fort Collins, the City Manager executed , on or about April 12, 1996, an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC, which purported to add Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996. In summary, Paragraph 27 gave to Pridemark Development Company, LLC the unilateral right to restructure the Purchase Agreement as an option rather than as a purchase. The full text of the foregoing summary of Paragraph 27 is set forth in Paragraph 1 of the First Addendum which said First Addendum is incorporated by this reference as though fully set forth herein. Thereafter,on or about August 26, 1996,the City Manager executed an agreement on behalf of the City of Fort Collins entitled "Second Addendum To Agreement Of Purchase And Sale Of Real Property" (hereinafter "Second Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC, which purported to amend the Agreement of Purchase and Sale of Real Property dated April 2, 1996, by abrogating the terms and conditions of sale as set forth in said Purchase Agreement and approved in Ordinance No. 41, 1996,by the City Council of the City of Fort Collins granting to Pridemark Development Company, LLC an option to purchase, which, by its terms, did not obligate Pridemark Development Company, LLC to purchase any of the real property described therein. The full text of the foregoing summary of the option to purchase is set forth in Paragraph 1 of the Second Addendum which said Second Addendum is incorporated by this reference as though fully set forth herein. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999,to approve the Planned Unit Development- Notice of Appeal • Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 5 Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, 473-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the real property which is the subject of this Appeal as the contract purporting to vest such an interest in the Applicant was void. Appellants assert that the City of Fort Collins improperly delegated its legislative discretion to the City Manager wherein it allowed the City Manager to abrogate the Purchase Agreement and thereafter execute the First Addendum and Second Addendum which created an entirely new arrangement for the sale of said real property embodied in an option to purchase. It is Appellants position that the City Council can only effectuate a transaction for the sale of real property as hereinabove described pursuant to Section 23-111(a) of the Code of the City of Fort Collins through a duly enacted ordinance. The City Council having failed to enact an ordinance restructuring the sale of real property from an outright purchase to an option to purchase as required in Section 23-111(a) of the Code rendered the contract void and vested no legal rights in Pridemark Development Company, LLC nor its successor in interest Kaufinan and Broad of Colorado, Inc. It is well settled in the State of Colorado that a city cannot commit the exercise of its legislative discretion to the caprice of its officers nor can it commit the exercise of its legislative discretion to others. Cu m it s ' o v. Denver 47 Colo. 221; Fellows v. La Tronica, 151 Colo. 300. In addition, it is 11 t o cts executed by municipal corporations in which there is a failure to comply with man story pro smo of applicable statutes or charters are void. Swedlund v. Denver Joint Stock Land Bank of Denver, 118 P. 2d 460; Town of Durango v. Pennington, 8 Colo. 257; Cherry Creek Aviation. Inc. v City of Steamboat Sorings 958 P. 2d 515. Also, there can be no ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and where the contract is required to be made in a specified manner, the observance of the same formalities and provisions necessary to be complied with in the making of a valid contract are required. Town of Durango v. Pennington, 8 Colo. 257. IV. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, delegation to PrideMark Development Company, LLC of the power to restructure the sale of the real property from a purchase to an option to purchase pursuant to the First Addendum To Agreement Of Purchase And Sale Of Real Property, was an improper delegation of legislative discretion which violated the requirements of Section 23-111(a) of the Code of the City of Fort Collins which vests sole authority to sell real property upon the City Council pursuant to a duly enacted ordinance. a. On or about April 16, 1996,the City Council of the City of Fort Collins enacted Ordinance No. 41, 1996, which authorized the sale of a portion of the Provincetowne Portner Special Improvement District #81 and the Fort Collins South Lemay Avenue Special Improvement District #86 to PrideMark Development Company, LLC. Section 2 of Ordinance No. 41, 1996, specifically approved the provisions of an Agreement of Purchase and Sale of Real Property (hereinafter "Purchase Agreement") by and • between the City of Fort Collins and Pridemark Development Company, LLC, dated April 2, 1996. The pertinent terms and conditions of said sale were set forth in the recitals of Ordinance No. 41, 1996,which, Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary, #73-82T September 3, 1999 Page 6 in summary provided that, Pridemark Development Company, LLC, would purchase the subject property for a total purchase price of One Million Eight Hundred Thousand Dollars ($1,800,000) to be paid over five years as follows: (1) $300,000 down payment, (2) $300,000 installment payment due one year after the date of closing, and (3) eight installment payments of$192,935.34 due semi-annually thereafter. The full text of the foregoing summary of the pertinent sale terms and conditions is found in Paragraph 4 A, 4B, 4C and 4D of the Purchase Agreement which said Purchase Agreement is incorporated by this reference as though fully set forth herein. Prior to the official enactment of Ordinance No. 41, 1996 by the City Council of the City of Fort Collins, the City Manager executed , on or about April 12, 1996, an agreement on behalf of the City of Fort Collins entitled "First Addendum To Agreement Of Purchase And Sale Of Property" (hereinafter "First Addendum') by and between the City of Fort Collins and Pridemark Development Company, LLC, which purported to add Paragraph 27 to the Agreement of Purchase and Sale of Real Property dated April 2, 1996. In summary, Paragraph 27 gave to Pridemark Development Company, LLC the unilateral right to restructure the Purchase Agreement as an option rather than as a purchase. The full text of the foregoing summary of Paragraph 27 is set forth in Paragraph 1 of the First Addendum which said First Addendum is incorporated by this reference as though ful f Thereafter,on or about August 26, 99 a er executed an agreement on behalf of the City of Fort Collins entitled "Second Adden A t Of Purchase And Sale Of Real Property (hereinafter "Second Addendum") by and between the City of Fort Collins and Pridemark Development Company, LLC, which purported to amend the Agreement of Purchase and Sale of Real Property dated April 2, 1996, by abrogating the terms and conditions of sale as set forth in said Purchase Agreement and approved in Ordinance No. 41, 1996,by the City Council of the City of Fort Collins granting to Pridemark Development Company, LLC an option to purchase, which, by its terms, did not obligate Pridemark Development Company, LLC to purchase any of the real property described therein. The full text of the foregoing summary of the option to purchase is set forth in Paragraph 1 of the Second Addendum which said Second Addendum is incorporated by this reference as though fully set forth herein. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor it's predecessor in interest, as a matter of law, or otherwise,had, nor presently has, any legal interest in the real property which is the subject of this Appeal as the contract purporting to vest such an interest in the Applicant was void. Appellants assert that the City of Fort Collins improperly delegated its legislative discretion to PrideMark Development Company, LLC when it entered into the First Addendum which gave to Pridemark Development Company, LLC the unilateral right to restructure the Purchase Agreement as an option rather than as a purchase as set forth in the Purchase Agreement. It is Appellants position that the City Council can only effectuate a transaction for the sale of real property as hereinabove described pursuant to Section 23-111(a) of the Code of the City of Fort Collins through a duly enacted ordinance. The City Council having failed to enact an ordinance restructuring the sale of real property from an outright purchase to an option to purchase as required in Section 23-111(a) of the Code rendered the contract void and vested no legal rights in Pridemark Development Company, LLC nor its successor in Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 7 interest Kauffman and Broad of Colorado, Inc. It is well settled in the State of Colorado that a city cannot commit the exercise of its legislative discretion to the caprice of its officers nor can it commit the exercise of its legislative discretion to others. Curran Bill Posting Co. v. Denver. 47 Colo. 221; Fellows v. La Tronica 151 Colo. 300. In addition, it is well settled that contracts executed by municipal corporations in which there is a failure to comply with mandatory provisions of applicable statutes or charters are void. Swedlund v. Denver Joint Stock Land Bank of Denver, 118 P. 2d 460; Town of Durango v. Pennington. 8 Colo. 257; Cherry Creek Aviation. Inc. v. City of Steamboat Springs, 958 P. 2d 515. Also, there can be no ratification of an invalid contract. Where an express contract is necessary to bind a municipal corporation in the first instance, and where the contract is required to be made in a specified manner, the observance of the same formalities and provisions necessary to be complied with in the making of a valid contract are required. Town of Durango v. Pennington, 8 Colo. 257. V. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Plann sand Ordinance No. 161, 1996 was the owner of the subject parcel of real prope �ing on March 27, 1997, of the Application with the Current Planning Department requesting t Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins. a. On March 27, 1997, an application was submitted to the Current Planning Department of the City of Fort Collins on behalf of PrideMark Development Company by Downing, Thorpe, James Inc. The type of request indicated on the application was for Planned Unit Development-Preliminary Plan and Preliminary Subdivision Plat. The Application Form stated that the Certification on the reverse side must be signed. The Certification states that, "I certify the information and exhibits submitted are true and correct to the best of my knowledge and that in filing this application I am acting with the knowledge, consent, and authority of the owners of the property . . . without whose consent and authority the requested action could not lawfully be accomplished. . . . ." It appears that the foregoing Certification was executed by James J. Weigel, Manager for PrideMark Development Company, LLC. As clearly set forth in the Certification requirements, the Applicant must have the express consent and authority from the owners of the property, without which the request for Planned Unit Development-Preliminary Plan and Preliminary Subdivision Plat approval could not be lawfully accomplished. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor it's predecessor in interest, as a matter of law, or otherwise, had, nor presently has, any legal interest in the real property which is the subject of this Appeal as set forth in filing requirements of Section 29-526 -Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 8 Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. The Certification as executed by the Applicant on the Application Form is not supported by any official action by the City Council of the City of Fort Collins as required by Section 6, Article II of the Charter of the City of Fort Collins, Section 8-110 et seq, of Article IV of the Code of the City of Fort Collins nor as required by Section 38-10-106 of Colorado Revised Statutes. Appellants assert that Applicant executed the Certification on the Application Form with full knowledge that Applicant did not have any ownership interest in nor the requisite legal authority to execute the Application/Certification from the City of Fort Collins at the time of filing the Application. It is Appellants position that the City of Fort Collins undertook no legal actions to empower Applicant's representative to execute the aforesaid Application and/or Certification on behalf of the City of Fort Collins as the fee owner. Therefore,pursuant to the provisions of Section 29-526 et seq. of the Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 no proper Application was before the Planning and Zoning Board as a result of Applicant's action of fraudulently executing the Certification and no jurisdiction was conferred upon the Planning and Zoning Board to undertake any action and/or decision relative to the parce o w ch was the subject of the August 5, 1999, hearing. The City of Fort Collins is req a 29-526 et seq. of the Land Development Guidance System For Planned Unit Developments an r cc No. 161, 1996 to have filed a planned unit development application that specifically meets all the standards, procedures, and conditions of the zoning regulations. ApplebauQh v. Board of County Com'rs. 837 P. 2d 304. In addition, the City of Fort Collins is required to comply with its own zoning ordinance. Clark v. Town of Estes Park 686 P. 2d 777. Failing to comply with the foregoing requirements, the Planning and Zoning Board was without proper jurisdiction in this matter. VI. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, filed, in a timely manner, a complete application as required by Section 29-526 et seq. -Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996. a. On March 27, 1997, an application was submitted to the Current Planning Department of the City of Fort Collins on behalf of PrideMark Development Company by Downing, Thorpe, James Inc. The type of request indicated on the application was for Planned Unit Development-Preliminary Plan and Preliminary Subdivision Plat approval. Section 7 of Ordinance No. 161, 1996 provides, "That all applications for approval of. . .,preliminary PUD plans, or preliminary subdivision plats, . . . accepted for filing before March 28, 1997 . . ., shall be processed and reviewed by City staff and/or the City's Planning and Zoning Board under the currently existing applicable provisions of the City Code, provided that the Director has determined that all relevant submittal requirements for such applications have been satisfied prior to said date. Such applications, once filed, shall not be modified or supplemented by the applicant without the written approval of the Director . . . ." The record in this matter indicates that the Director did not make the determination prior to March 28, 1997, as required in Section 7 and as required by Section 9 of Ordinance No. 161, in that, the Applicant did not submit evidence of successful completion of the applicable criteria, specifically the All Development Criteria and Community Wide Criteria as required by Notice of Appeal • Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 9 the provisions of Section 29-526D(1)(c) and Section 29-5261)(2) respectively, which are mandatory prerequisites to the determination of the filing of a complete application pursuant to Section 7 of Ordinance No. 161, 1996 and prior to March 28, 1997 as specified. Additionally, Applicant's request for a variance to the Solar Orientation Ordinance was not included in the March 27, 1997 filing as required by Section 9 of Ordinance No. 161, 1996. Said Section 9 requires that the Director's determination shall be inclusive of all items as shown on Exhibit B which specifically requires under Preliminary Planned Unit Development, Paragraph Le. " . . . . Any variance from the criteria shall be described. In addition, Paragraph 3, provides that the site plan drawings contain a statement of variances to City design criteria and standards. Applicants filing failed to meet these required elements for a complete application. In addition, Section 7 of Ordinance No. 161, 1996 provides that, " . . . . Such applications, once filed, shall not be modified or supplemented by the applicant without the written approval of the Director . . . ." There are no records of written approval by the Director permitting the Applicant to modify or supplement the Application as required in Section 7. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as c o PUD Filing Two-Preliminary, #73-82T and to • the granting of a variance to the City of rt m 1 entation Ordinance, in that, Applicant nor it's predecessor in interest, filed, in a timely a�ipl e application as required by Section 29-526 et seq. - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996. The Planning and Zoning Board cannot exercise jurisdiction over applications which do not meet the requirements of Section 29-526 et seq. of the Land Development Guidance System For Planned Unit Developments and Ordinance No. 161. The Planning and Zoning Board is permitted to process only those applications for a planned unit development that specifically meet all the standards, procedures, and conditions of the zoning regulations. Applebaugh v Board of County Com'rs 837 P. 2d 304. VII. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, Applicant nor it's predecessor in interest, as a matter of law and pursuant to filing requirements of Section 29-526 - Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 was the owner of the subject parcel of real property at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner,the City of Fort Collins. a. The City of Fort Collins and Pridemark Development Company, LLC, entered into a Fourth Addendum To Agreement Of Purchase And Sale Of Real Property (hereinafter "Fourth Addendum") on November 25, 1997. Pursuant to the terms and conditions of said Agreement, Purchaser, in accordance with Paragraph 2.A. thereof, was required to exercise the option to purchase by giving Seller as least ninety (90) days prior written notice of Purchaser's intent to purchase all or any portion of the Property. In addition, Paragraph 2.A. provides that, "If the Purchaser fails to so exercise this option for any of these • required purchases, the Agreement shall be automatically terminated and both parties shall be released from all further obligations hereunder." On December 18, 1997, the City of Fort Collins transferred a 28.33 Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 10 acre parcel to Pridemark Development Company, LLC. Thereafter, on June 2, 1998, the City of Fort Collins transferred a 28.33 acre parcel to Pridemark Development Company, LLC. With respect to the transfer of real property which occurred on December 18, 1997, Purchaser was required by said Paragraph 2.A. to provide written notice of exercise on or before September 19, 1997. A response to a formal request for the production of public records by the City Clerk revealed that no such exercise of option was received by the City of Fort Collins. Pursuant to the provisions of Paragraph 2.A. which provides that, "If the Purchaser fails to so exercise this option for any of these required purchases, the Agreement shall be automatically terminated and both parties shall be released from all further obligations hereunder" the Fourth Addendum was terminated. In regard to the transfer of real property which occurred on June 2, 1998, Purchaser was required by said Paragraph 2.A. to provide written notice of exercise on or before March 3, 1998. A response to a formal request for the production of public records by the City clerk revealed that a correspondence dated March 14, 1998, was received from Purchaser purporting to exercise the option on the second parcel. With respect to the foregoing chronology of events, it appears that the failure of Purchaser to deliver notice of exercise of option as required by Paragraph 2.A. on or before September 19, 1997,automatically terminated the Fourth Addendum agreement and extinguished the power of the City of Fort Collins to transfer the n ember 18, 1997. In the event that the option to exercised survived this failure f� first parcel, then, Purchaser's failure to deliver notice of exercise of option until March 1 1 mgurshed all rights to the transfer of the second parcel which required that said notice be delivered on or before March 3, 1998, and extinguished the right to acquire any further parcels at any subsequent date as the Fourth Addendum was automatically terminated pursuant to the provisions of Paragraph 2.A. The full text of the foregoing Paragraph 2.A. of the Fourth Addendum and said Fourth Addendum is incorporated by this reference as though fully set forth herein. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, Applicant nor it's predecessor in interest, as a matter of law, or otherwise,had,nor presently has, any legal interest in the real property which is the subject of this Appeal as set forth in filing requirements of Section 29-526-Land Development Guidance System For Planned Unit Developments and Ordinance No. 161, 1996 at the time of the filing on March 27, 1997, of the Application with the Current Planning Department requesting Planned Unit Development - Preliminary Plan approval and approval for a Preliminary Subdivision Plat nor was Applicant given legal authority to execute the Application as filed nor prosecute such Application on behalf of the record owner, the City of Fort Collins. As stated previously, the Certification as executed by the Applicant on the Application Form is not supported by any official action by the City Council of the City of Fort Collins as required by Section 6, Article 11 of the Charter of the City of Fort Collins, Section 8-110 et seq.,of Article IV of the Code of the City of Fort Collins nor as required by Section 38-10-106 of Colorado Revised Statutes. Finally, the Fourth Addendum requirements for exercise of option pursuant to Paragraph 2.A. and the automatic termination as provided therein are clear and not ambiguous. It is well settled that if the meaning of a contract may be determined by the written instrument, parties are bound by what it says, rather than by what the parties may say. Also, when evidence of an agreement consists of Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary, #73-82T September 3, 1999 Page 11 documents, as here, the determination of their effect is a matter of law. Colowvo Coal v. City of Colorado Spring, 879 P. 2d 438 (Colo. App. 1994); Gardner v. Englewood, 131 Colo. 210. It is Appellants position that the City of Fort Collins is currently the sole owner of the fee interest in the subject parcel of real property and that Applicant has no legal interest in the subject of the Application as to give Applicant standing before the Planning and Zoning Board. VIII. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the Planning and Zoning Board failed to give timely notice of August 5, 1999,hearing. a. Section 7 of Ordinance No. 161, 1996 provides, "That all applications for approval of . . ., preliminary PUD plans, or preliminary subdivision plats, . . . accepted for filing before March 28, 1997 . . ., shall be processed and reviewed by City staff and/or the City's Planning and Zoning Board under the currently existing applicable provisions of the City Code, . . ." Further, Section 10 of Ordinance 161, 1996 provides, "That, for the purpose of revi P ns under the currently existing, applicable provisions of the City Code, the amendme to OctisDevelopment Guidance System contained in Ordinance 161, 1995, shall remain in full ce l all such applications have received final approval by the City or have been denied by the City and all appeal rights pertaining thereto have been exhausted." As for the requirements for notice Section 29-526F(4)(b) of the Land Development Guidance System For Planned Unit Developments provides, "The Planning and Zoning Board shall give written notice to the owners of record of all real property within five hundred (500) feet (exclusive of public right- of-way, public facilities, parks, or open space) of the property lines of the parcel of land for which the planned unit development is proposed. . . . Such written notice shall be delivered at least twenty-eight(28) days prior to the Planning and Zoning Board hearing date." The hearing date set for this matter before the Planning and Zoning Board was August 5, 1999. Appellants' notice was mailed on July 20, 1999. The written notice was delivered only sixteen (16) days prior to the Planning and Zoning Board hearing date. A copy of the envelope bearing the postmark of July 20, 1999, is attached hereto and submitted herewith and marked as Exhibit W'. It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that,the Planning and Zoning Board failed to give timely notice as required in the aforementioned Sections. Strict compliance with provisions for notice of public hearing is required. Holly Development, Inc v. Board of County Commissioners, 342 p. 2d 1032. IX. No Hearing Jurisdiction Conferred On Planning and Zoning Board, in that, the notice of the Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient to confer jurisdiction upon the Planning and Zoning Board. Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 12 a. The notice of hearing dated July 19, 1999, failed to set forth, with specificity, the nature of the project and requested approvals nor did it specifically set forth that the Applicant was seeking a variance to Section 29-526(2)A-1/A-1.1 Community-Wide Criteria/Solar Orientation of the Land Development Guidance System For Planned Unit Developments. A copy of the hearing notice dated July 19, 1999, is attached hereto and submitted herewith and marked as Exhibit"B". It is Appellants contention that the Planning and Zoning Board lacked the requisite jurisdiction to hear the matter and render the decision of August 5, 1999, to approve the Planned Unit Development - Preliminary Plan, commonly referred to as Provincetowne PUD, Filing Two-Preliminary, #73-82T and to the granting of a variance to the City of Fort Collins Solar Orientation Ordinance, in that, the notice of the Planning and Zoning Board dated July 19, 1999, for the hearing of August 5, 1999, was insufficient as a matter of law to confer jurisdiction upon the Planning and Zoning Board. To confer jurisdiction on an agency, a public notice must be clear, definite, explicit and not ambiguous. A notice is not clear unless its meaning can be apprehended without explanation. In addition, the notice must set forth all information reasonably necessary to provide adequate warning to all persons whose rights might be affected by the proposed action. In order to accomplish this purpose, the notice, at a minimum, must give the date, time, and place of the hearing and apprise the th u ' matter of the hearing and nature of the proposed action. The failure to specificall m ce request rendered the notice insufficiente Fedder v. McCurdy. 768 P. 2d 711 (Colo. in ); I rk Builders v. City of Gunnison. 650 P. 2d 556; Sundance Hills Homeowners Association v. Board of County Commissioners, 534 P. 2d 1212; Re¢ennitter v. Fowler. 290 P. 2d 223. Also, such failure to specifically notice the variance request of Applicant was a denial of the constitutional principle of procedural due process which requires notice and opportunity to be heard. The effect of such failure to give constitutionally adequate notice requires that the hearing decision be vacated and that the matter be set for a hearing de novo. Fourteenth Amendment Constitution of the United States. X. Planning And Zoning Board Failed To Make Required Variance Findings, in that, Section 29- 526K of the Land Development Guidance System For Planned Unit Developments requires, "The decision of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board." a. The record of the proceedings clearly are devoid of any statements or explanations setting forth the substantive elements of the Planning and Zoning Boards decision to grant the Applicant's request for a variance to the City of Fort Collins Solar Orientation Ordinance. In the motion to grant Applicant's request for a variance to the solar orientation requirements of Section 29-526(2)A-1/A-1.1 no findings were discussed by the members of the Planning and Zoning Board nor did the Planning and Zoning Board set forth in the text of the motion any findings which support the granting of said variance. The failure to make the required findings on the record renders the decision of the Planning and Zoning Board granting the variance void. XI. Applicant Failed To Sustain The Burden Of Proof In Seeking The Variance To The City Of Fort Collins Solar Orientation Ordinance, in that,Applicant presented no evidence which would demonstrate • Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary, #73-82T September 3, 1999 Page 13 that the granting of the variance would neither be detrimental to the public good nor impair the intent and purposes of Section 29-526(2)A-1/A-1.1 or that Applicant was entitled to the variance by reason of exceptional conditions or difficulties with regard to solar orientation or access, and that undue hardship would be caused to Applicant by the strict application of the provisions of Section 29-526(2)A-1/A-1.1. a. On or about March 23, 1999, Applicant's representative submitted to the Fort Collins Current Planning Department a correspondence "requesting a variance from the City's LDGS All-Development Criteria A-1.1 'Solar Orientation'." In the Section designated "Justification for Variance Request" the Applicant set forth the following justification, "The site plan,which originally achieved 65%solar oriented lots, lost several solar- oriented lots in the redesign of the Cottage Home Area(Parcel G). This area was redesigned primarily to improve and simplify the lotting layout by eliminating several inefficient flag lots used to achieve solar orientation while still taking access of the public alley. (The City's Narrow Residential Street and Alley Standard limits driveway access to the public alley only.) As a result, several of the north-south(solar)oriented lots along the east- west streets (of Benson lane and B ged/reoriented to east west." • Section 29-526(2)All Development and Sl RecrVi5erivY4ch ens, provides, The information above the bold line on the following pages constitutes are mandatory standards for preliminary and final plans. . . ." Section 29-526(2)A-1/A-1.1 provides the provisions for the mandatory criterion for solar orientation as follows, "Do at least sixty-five (65) percent of the lots less than fifteen thousand (15,000) square feet in area in single-and two-family residential developments conform to the definition of a 'solar-oriented lot' in order to preserve the potential for solar energy usage?" Further, Section 29-526 K provides, "The Planning and Zoning Board is empowered to grant variances to the provisions of this section. The decision of the Planning and Zoning Board on any application for a variance shall be set forth in writing in the minutes of the meeting of the Board. Variance requests may be granted if the Board determines that the granting of the variance would neither be detrimental to the public nor impair the intent and purposes of this section, and if the applicant demonstrates: . . . . (2) That by reason of exceptional conditions or difficulties with regard to solar orientation or access, undue hardship would be caused to a subdivider by the strict application of any provisions of this section,or . . . ." It is Appellants contention that the Applicant failed to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar Orientation Ordinance and that the Planning and Zoning Board failed to make required findings to support the granting of a variance to the City of Fort Collins Solar Orientation Ordinance pursuant to Section 29-526K of the Land Development Guidance System For Planned Unit Developments. Under Section 29-526K of the Land Development Guidance System For Planned Unit Developments, the Planning and Zoning Board has no authority arbitrarily to grant variances to the Solar Orientation Ordinance, and while the pertinent provisions of Section 29-526K state that the Planning and Zoning Board can grant variances, such variances may be made only in certain enumerated cases. The power of the Planning and Zoning Board is limited by the provisions of Section 29-526K, and any variance made without compliance with those provisions is beyond the authority of the Planning and • Zoning Board, and void. Cross v. Bilett 122 Colo. 278. The record of the proceedings clearly are devoid of any statements or explanations setting forth the substantive elements of the Planning and Zoning Boards Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary, #73-82T September 3, 1999 Page 14 decision to grant the Applicant's request for a variance to the City of Fort Collins Solar Orientation Ordinance. In the motion to grant Applicant's request for a variance to the solar orientation requirements of Section 29-526(2)A-1/A-1.1 no findings were discussed by the members of the Planning and Zoning Board nor did the Planning and Zoning Board set forth in the text of the motion any findings which support the granting of said variance. The failure to make the required findings on the record renders the decision of the Planning and Zoning Board granting the variance void. It has been held repeatedly by courts of last resort that the record and findings of administrative boards must disclose the basis of the conclusions reached by them. Linder v. Copeland. 137 Colo. 53; deKoevend v. Board of Education of West End School. 688 P. 2d 219; Murray v. Bd. of Adjust- Larimer County, 594 P. 2d 596 (Colo. App. 1979). Appellants also assert that the Applicant failed to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar Orientation Ordinance. The burden of proof is on the Applicant seeking a variance from a zoning ordinance. La Plata County Com'rs v. Bd of Adi 768 P. 2d 1250 (Colo. App. 1988). Applicant's stated justification of the variance was that, "The site plan, which originally achieved 65% solar oriented lots, lost several solar-oriented lots in the redesign of the Cottage Home Area (Parcel 4 G). This area was redesigned primarily to im rove and simplify the lotting layout by eliminating several inefficient flag lots used to achieve solar on to g access of the public alley." It appears from the,text of the Application for the ol n w untary redesign of the Cottage Home Area (Parcel G) is a self-inflicted conditiohich d of the criteria set forth in Section 29-526K and Section 29-526K(2) entitling the granting of a variance to the mandatory requirements of Section 29- 526(2)A-1/A-1.1. It is well settled that the hardship or practical difficulty upon which the need for a variance is premised should not be self-created and it must be of a type particular to this property owner and not shared by others. Murray v. Bd. of Adiust., Larimer County, 594 P. 2d 596 (Colo. App. 1979). In Lew v. Board of Adiustment of Arapahoe County, 369 P. 2d 991,the court stated that, "Without deciding whether 'self-inflicted hardship' is in and of itself an absolute bar to the granting of a variance, it is at the very least a highly significant fact which, according to the Ardolino case, is a 'material element bearing on the issue and weighs heavily against the owner seeking the variance."' In this instance Applicant voluntarily made design changes which modified a previously submitted plan which was in compliance with the provisions of Section 29-526(2)A-1/A-1.1 the solar orientation ordinance criteria thereby reducing the number of required solar oriented lots which they now seek the granting of a variance. It goes without saying that the required test is not met solely by a showing of inconvenience or a greater economic benefit that could be gained if the variance was granted. Baum v. City and County of Denver. 147 Colo. 104. In addition,in their presentation at the hearing the Applicant did not provide any additional evidence which by reason of exceptional conditions or difficulties with regard to solar orientation or access, undue hardship would be caused to Applicant by the strict application of any provisions of this Section 29-526(2)A-1/A- 1.1 thereby failing to sustain the burden of proof in seeking the variance to the City of Fort Collins Solar Orientation Ordinance. The Planning and Zoning Board abused its discretion and exceeded its jurisdiction in granting the variance. The following grounds of appeal set forth allegations of error in accordance with the provisions of Section 248(b)(2)c. and Section 248(b)(2)d. of the Code of the City of Fort Collins. Notice of Appeal Planning and Zoning Board Decision Provincetowne PUD, Filing Two-Preliminary,#73-82T September 3, 1999 Page 15 XII Planning And Zoning Board Considered Evidence Relevant Which Was Substantially False Or Grossly Misleading & Planning And Zoning Board Failed To Receive All Relevant Evidence Offered By The Appellants a. The Planning and Zoning Board received evidence at the hearing that no water would flow from the proposed development into the drainage system situated on the adjacent property owned by Eagle Tree at Provincetowne Community Association, Inc.. Applicant's representative, Brock Chapman, testified that the design incorporated into the existing Preliminary Plan, which was the subject of the approval request, had included elements which provided that no water would flow from their development onto and/or through the property and/or drainage system of Eagle Tree at Provincetowne Community Association, Inc.. Subsequent to the closure of the public hearing portion of the meeting, the Planning and Zoning Board received evidence from staff that water accumulating within the proposed development would in fact flow upon the property and/or into the drainage system of Eagle Tree at Provincetowne Community Association, Inc.. The members of the Eagle Tree community were not afforded an opportunity to address this issue and submit into evidence before the Planning and Zoning Board that the Eagle Tree at Provincetowne Community Association, Inc. owns in fee ted upon it's real property and has not given to the Applicant an easement for rty. Appellants were precluded from presenting to the Planning and Zoning Board a copy o p is Overall Drainage Plan which clearly identifies areas of drainage which will in fact cross and/or enter the drainage system of Eagle Tree at Provincetowne Community Association, Inc.. Official/Ouasi-Judicial/Administrative Notice Appellants hereby request that the City Council take Official/Quasi-Judicial/Administmtive Notice of the Constitution of the United States, the Constitution of the State of Colorado, Colorado Revised Statutes,the Charter of the City of Fort Collins,the Code of the City of Fort Collins, and the Ordinances of the City of Fort Collins. No Waiver Appellants hereby submit the foregoing and reserve the right to present further argument and materials at the hearing. The Notice of Appeal by Appellants is not intended to be construed as a submission to or a waiver of any jurisdictional or such other legally cognizable procedural or substantive defect occurring during the processing of the Application for Planned Unit Development - Preliminary Plan approval nor of any determinations and/or actions taken by the City of Fort Collins prior to and subsequent to the filing of said Application. Respectfully submitted, n D i G. van WOSP enke