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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/06/2005 - RESOLUTION 2005-096 APPROVING THE STIPULATED DETER ITEM NUMBER: 17 AGENDA ITEM SUMMARY DATE: September6, 2005 FORT COLLINS CITY COUNCIL STAFF: Paul Eckman SUBJECT Resolution 2005-096 Approving the Stipulated Determination of Vested Rights Between the City and Village Homes of Colorado, Inc. RECOMMENDATION Staff recommends adoption of the Resolution. EXECUTIVE SUMMARY Village Homes of Colorado, Inc. is the developer of Willow Brook and has almost completed the project, but there remains about 13 acres to be developed. The plan has expired. Accordingly, Village Homes has filed an application for a Determination of Vested Rights under Division 2.13 of the Land Use Code and the City Manager and City Attorney agree that the application for Determination of Vested Rights should be granted. The proposed resolution would formalize the determination of vested rights. BACKGROUND Division 2.13 of the Land Use Code of the City establishes a procedure whereby the City can provide relief,where appropriate, to persons who claim that the application of the Land Use Code has interfered with their vested rights to develop property. This procedure has been established in order to prevent manifest injustice in cases where application of the "lapse"provisions of the Land Use Code would work an undue hardship. Vested rights determinations are allowed where: 1. Some authorized act has been performed by the City; 2. There has been reasonable good faith reliance upon such act by the applicant; and 3. There has been a substantial change in position or expenditure by the applicant such that it would be highly inequitable and unjust to destroy the rights acquired. Village Homes owns a parcel of property at the southeast corner of Cambridge Drive and Rock Creek Drive in the City which has been developed in the City under the name of"Willow Brook," September 6, 2005 -2- Item No. 17 and "Willow Brook, Filing II." The entire parcel contains almost 112 acres and has been largely developed, but there remains about 13 acres to be developed. This remaining parcel has lapsed under the expiration provisions of the Land Use Code because the infrastructure for that parcel has not been completed. Because of this lapse,Village Homes has sought relief under the vested rights determination process set out in Division 2.13 of the Land Use Code. Section 2.13.5 provides that if the Director and the City Attorney agree, based on the review and evaluation of the application, that the application should be granted, then they may enter into a written stipulation with the applicant,in lieu ofthe hearing which would otherwise be required under Division 2.13. Any such stipulated determination must be approved by the City Council by resolution and must include findings of fact and conclusions of law upon which the determination is based. Both an overall development plan and final plans have been approved for the property and the City's utility or other utility servicing districts have also approved the completion of utilities for the property. The City has issued 208 building permits for houses on the property and the applicant has received certificates of occupancy for 155 homes, many of which have been sold to purchasers. Village Homes maintains a very active sales presence on the property, and has dedicated public rights of way to the City in accordance with the plans. Village Homes has received development financing for the entire parcel, and this financing was based upon the complete development of the entire parcel such that Village Homes is at risk of violating the terns of its development financing if it does not obtain a vested right to continue the project to completion. Village Homes has budgeted some$26,480,000 to develop the property and has spent $23,612,000 in doing so. It has also completed an astronomical observatory and clubhouse on the site which cost in excess of$1 million. It appears from the perspective of the staff and the City Attorney's office that the applicant has incurred substantial expenditures in reliance upon the City's approval of the plans and that the applicant has been diligent in trying to develop the property to completion and that Village Homes should be afforded an additional three years within which to completely install the infrastructure improvements for the remaining portion of the property. RESOLUTION 2005-096 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS BETWEEN THE CITY AND VILLAGE HOMES OF COLOR-ADO, INC. WHEREAS, Division 2.13 of the Land Use Code contains a vested rights determination procedure in order to prevent manifest injustice by providing a mechanism of identifying certain parcels of real property in the City that should, by reason of general principles of common law vested rights,be exempt from the"lapse"provisions as contained in Section 2.2.11 of the Land Use Code; and WHEREAS, Village Homes of Colorado, Inc. is the owner of a tract of land located at the southeast corner of Cambridge Drive and Rock Creek Drive in the City, which parcel of property has obtained City approval of an overall development plan and final plan approval for Willow Brook and Willow Brook, Filing II; and WHEREAS,Village Homes of Colorado,Inc.has,in reliance upon the approval by the City of the aforesaid overall development plan and final plans,expended substantial sums of money and otherwise substantially changed its position in reasonable good faith reliance upon the authorized acts of the City in approving the plans,all as more particularly stated in the Stipulated Determination of Vested Rights attached hereto as Exhibit "A"; and WHEREAS,upon examination of the facts,conclusions of law and determination contained in the Stipulated Determination of Vested Rights, the Council has determined that it is in the best interest of the City that said Stipulated Determination of Vested Rights should be approved. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Stipulated Determination of Vested Rights between the City and Village Homes of Colorado, Inc., dated August 31,2005,attached hereto and incorporated herein by this reference as Exhibit "A" is hereby approved. Passed and adopted at a regular meeting of the City Council held this 6th day of September, A.D. 2005. Mayor ATTEST: City Clerk EXHIBIT "A" STIPULATED DETERMINATION OF VESTED RIGHTS This stipulated determination of vested rights is executed this 31 st day of August,2005, by the City of Fort Collins("City")and Village Homes of Colorado,Inc. ("Applicant"). FINDINGS OF FACT 1. Applicant is the owner of a tract of land(the"Property")located at the southeast comer of Cambridge Drive and Rock Creek Drive in the City of Fort Collins. The legal description of the property is attached hereto as Exhibit "A". Said parcel shall hereafter be referred to as the "Property" 2. The Property was annexed into the City in January, 2000. 3. An overall development plan was approved for the Property by the Planning and Zoning Board of the City on September 21,2000. Subsequent to approval of the overall development plan, project development plans were approved for the Property under the name "Willow Brook" and "Willow Brook, Filing II". The final plan for Willow Brook was approved on August 1, 2001 and for Willow Brook, Filing II, on July 30, 2002 (hereafter sometimes referred to as the "final development plan"or"final plan"). The final plan has lapsed in accordance with Section 2.2.11(D) of the Land Use Code. During the month of August 2001,the City also approved utility plans and executed a development agreement with the Applicant regarding Willow Brook. During the month of August 2002, the City approved utility plans and executed a development agreement with the Applicant regarding Willow Brook,Filing II. Said utility plans and development agreements,among other things, issued and executed regarding Willow Brook and Willow Brook, Filing II, dealt with issues pertaining to the Applicant's obligation to construct portions of Rock Creek Drive as well as oversizing of certain streets, construction of sewer lines, water lines, storm drainage facilities, landscaping and other infrastructure improvements. 4. In accordance with the approved final plan and the development agreements, the Applicant obtained development construction permits for three phases of Willow Brook,respectively on August 13, 2001, October 11, 2002 and September 9, 2003, and obtained a development construction permit for Willow Brook, Filing II on August 23, 2002. The City accepted the final completion of Willow Brook Phases 1 and 2 on August 5, 2005 and Phase 3 of Willow Brook on September 15, 2004. The City also initially approved the development of Willow Brook,Filing II on September 15, 2004. The Fort Collins/Loveland Water District and the South Fort Collins Sanitation District also approved substantial completion for Willow Brook and Willow Brook,Filing II during the course of time commencing June 10, 2002 and concluding August 4, 2004. Furthermore, the City has issued 208 building permits for houses constructed or to be constructed on the Property and the Applicant has either sold or received certificates of occupancy for 155 homes. The Applicant maintains six onsite sales and management personnel,three onsite sales offices and nine model homes. The Applicant has listed the property for sale with The Group,Inc. Realtors, and has held various marketing events such as a grand opening for new model homes, movie nights in the park, barbeques at the observatory, open house nights at the observatory, and other marketing and promotional events. 5. The Applicant has budgeted$26,480,000 to develop the Property and has invested some $23,612,000 in the acquisition, design and installation of infrastructure improvements for the Property. The Applicant has and will continue to incur financing and construction costs in excess of the aforesaid amounts and a summary of the Applicant's total project investment is attached hereto as Exhibit"B". The foregoing investment includes construction of offsite improvements such as the Rock Creek Drive extension from Ziegler Road to the project,and also includes oversizing of streets, construction of sewer and water lines and other utility services. The Applicant has also completed the construction of an astronomical observatory and clubhouse, which has established the overall theme for the Property, which construction cost the Applicant in excess of$1 million. 6. The Applicant has dedicated public rights-of-way to the City in accordance with the approved plans for the Property and has installed infrastructure improvements in accordance with the approved utility plans. 7. The approved final development plan contains approximately 111.9 acres. The undeveloped portions of the final plan, which has lapsed according to the Land Use Code, were anticipated to have completed infrastructure improvements within the coming two years. The Applicant's existing development loans on the Property are based upon the approved final plan and the continued construction in accordance with the final plan. The Applicant is at risk of violating the terms of those development construction loans unless the Applicant obtains the vested right to continue the project to completion on the remaining portions of the final plan. 8. On August 15,2005,the Applicant filed a request for a vested rights determination with the City. On August 20, 2005, the Director of Community Planning and Environmental Services determined that the application was complete. The Applicant has requested, through the vested rights determination process, that the Applicant be found to possess a vested right in the final development plan, to complete the development of the remaining portions of the project in accordance with the previously approved final plan. 9. In accordance with Section 2.13.10 of the Land Use Code, in order for an applicant to be entitled to a positive vested rights determination, the City Attorney and City Manager must be persuaded by clear and convincing evidence that there has been some authorized act of the City, together with reasonable good faith reliance upon such act by the applicant, which resulted in a substantial change in position or expenditure by the applicant such that it would be highly inequitable or unjust to destroy the rights acquired. In accordance with the criteria established in Section 2.13.10 of the Land Use Code, the City Attorney and City Manager have come to the following conclusions of law. CONCLUSIONS OF LAW 1. Authorized Act of the Citv. By approving the overall development plan and the final plats and plans for Willow Brook, and Willow Brook, Filing II,and by approving the utility plans and entering into development agreements for the foregoing developments, the City performed authorized acts upon which the Applicant might reasonably have relied. 2. Reasonable Good Faith Reliance. The Applicant acted reasonably and in good faith by relying upon the authorized acts of the City in moving forward with the construction of certain infrastructure improvements for the Property,both on and off-site by obtaining the issuance of 208 building permits for houses on the Property and by generally proceeding to develop the property. 3. Substantial Chance in Position or Expenditure. By budgeting approximately $26,480,000 and investing approximately$23,612,000 in the acquisition,design and installation of infrastructure improvements for the Property, by obtaining development financing based upon the full development of the Property,by dedicating rights-of-way and easements for the construction of such infrastructure improvements, and by constructing the extension of Rock Creek Drive from Ziegler Road to the project,as well as other oversized streets and infrastructure improvements,some of which are necessary to serve the Property and others of which are necessary to accommodate other developments in the area,the Applicant has made substantial expenditures and substantially changed its position to such an extent that it would be inequitable or unjust to destroy the rights acquired by reason of the City's approval of thefinal plan. This is so because the infrastructure improvements which have been installed have been sized to accommodate the uses anticipated to occur in the final plan generally and have been improved in a timely and diligent manner and some 208 building permits have been issued for houses on the Property with some 155 homes having been sold to new residents. Furthermore, the financing and marketing activities that have been carved out by the Applicant demonstrate the Applicant's diligence in pursuing the development of the Property. DETERMINATION The Applicant has reasonably, and in good faith, relied upon authorized acts of the City in making such a substantial change in position or expenditure that it would be highly inequitable and unjust to destroy such rights as may have been acquired by the Applicant in the approval of the final plan. Of the gross acreage of 111.9 acres,only a small portion remains incomplete,and it is hereby determined that it would be equitable under the circumstances to allow the Applicant a period of three (3) years from the date hereof within which to complete the development of the remaining portions of the project in accordance with the previously approved final plan. CITY OF FORT COLLINS, COLO O, a Municipal Corporation By: � Dann A. Atteberry, City Manager B4Steve City 4Attomey ATTEST: Wanda M. Krajicek,Chy CQrk VILLAGE HOMES OF COLORADO, INC., a Colors orp ration By: Pete i B. Benson f ivisio President ATTEST: Secr Approved by City Council by Resolution No. , dated September 6, 2005. Wanda M. Krajicek, City Clerk