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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/15/2009 - RESOLUTION 2009-111 APPROVING THE STIPULATED DETER DATE: December 15, 2009 AGENDA ITEM SUMMARYI STAFF: Darin Attebery Steve Roy, F FORT COLLINS CITY COUNCIL SUBJECT Resolution 2009-111 Approving the Stipulated Determination of Vested Rights Between the City and South Harmony, LLC. EXECUTIVE SUMMARY South Harmony, LLC is the developer of Brookfield Subdivision and has completed much of the project, but there remains about half of the dwelling units to be sold and constructed. The plan has expired. Accordingly, South Harmony, LLC has filed an application fora 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 / DISCUSSION 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. South Harmony, LLC owns a parcel of property at the northeast corner of Cinquefoil Lane and Rock Creek Drive in the City which has been developed in the City under the name of"Brookfield". The entire parcel contains 42.39 acres and has been largely developed, but there remains about half of the dwelling units to be sold and constructed. This development has lapsed under the expiration provisions of the Land Use Code because the infrastructure has not been completed. Because of this lapse, South Harmony 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 of the 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 approximately 148 building permits for dwellings on the property and the applicant has received certificates of occupancy for 138 homes, all of which have been sold to purchasers. South Harmony maintains an active sales presence on the property, and has dedicated public rights-of-way to the City in accordance with the plans. South Harmony has received development financing for the entire parcel, and this financing was based upon the complete development of the entire parcel such that South Harmony is at risk of violating the terms of its development financing if it does not obtain a vested right to continue the project to completion. South Harmony has budgeted some $9,749,488 to develop the property and has spent$8,733,755 in doing so. From the perspective of the staff and the City Attorney's office, it appears 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 December 15, 2009 -2- ITEM 14 develop the property to completion and that South Harmony should be afforded an additional three years within which to completely install the infrastructure improvements for the remaining portion of the property. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. ATTACHMENTS 1. Application for Determination of Vested Rights, October 13, 2009 ATTACHMENT 1 VESTED RIGHTS DETERMINATION APPLICATION South Harmony, LLC is the owner and developer of Brookfield (the "Project") and is requesting a determination of vested rights pursuant to the City of Fort Collins Land Use Code Division 2.13. The application sets forth the Project's compliance with Division 2.13 of the Code and the applicant respectfully requests a determination that the Project is vested. General Information Fee: $2,500.00 Applicant: Owner's Name: South Harmony, LLC Owner's Representative: Brett W. Bennett, Manager Street Address: 9145 E. Kenyon Avenue, Suite 200 Denver, CO 80237 Telephone: 303-770-5000 ext. 114 Fax: 303-694-3332 Email: brett@brokerswest.com Project Name: Brookfield (a.k.a. Morningside Village) Project Location: The property is located at the northeast corner of Cinquefoil Lane and Rock Creek Drive in the City of Fort Collins, Colorado. The legal description of the property is attached hereto as Exhibit"A". Land Use Information: Gross Acreage: Approximately 42.39 Acres Existing Zoning: Harmony Corridor Total Approved Units: 298 Total Occupied Units: 138 Total Units Under Construction 8 Total Units For Sale: 10 Total Units Remaining to be built: 150 Criteria for Vested Rights The following criteria were used to make a case for vested rights determination on the Brookfield project, in accordance with the City of Fort Collins Land Use Code 2.13.10 and applicable state statutes: 1. Authorized Act of the City (2.13.10(C)(A)). Below is a chronological history of the entitlements received for this property. By approving the entitlements below, the City performed authorized acts upon which the Applicant has relied. a. Annexation and Zoning Document Building# Date Record # Declaration 7/9/2003 2003- 0085688 Amendment Lots 31-36 6/24/2003 2003- 0077587 Amendment 27 7/9/2003 2003- 0085689 Amendment 33 10/7/2003 2003- 0128028 Amendment 34 10/30/2003 2003- 0137678 Amendment 28 12/23/2003 2003- 0160768 Amendment 26 5/12/2004 2004- 0045067 Amendment 32 6/28/2004 2004- 0062147 Amendment Lots 25-30 11/8/2004 2004- 0107632 Amendment 25 2/1/2005 2005- 0008260 Amendment 24 3/15/2005 2005- 0020300 Amendment 31 4/27/2005 2005- 0033612 Amendment 23 5/20/2005 2005- 0041080 Amendment 22 7/13/2005 2005- 0057726 Amendment 15 2/17/2006 2006- 0011819 Amendment 20 2/17/2006 2006- 0011819 Amendment 16 5/25/2006 2006- 0039094 Amendment 17 5/25/2006 2006- 0039094 Amendment 18 4/25/2008 2008- 0025815 Amendment 21 12/1/2008 2008- 0073391 Amendment 19 10/9/2009 2009- 0068984 b. Overall Development Plan ("ODP") The ODP was approved on September 21, 2000 by the Panning and Zoning Board. c. Brookfield: i. Final Plat—The Final Plat was approved on January 28, 2002 by the Planning Director. ii. Final Development Plan ("FDP") —the FDP was approved on December 17, 2001 by the Planning Director. iii. Utility Plans—The utility plans were approved on December 19, 2001 by the City Engineer. iv. Development Agreement—the City of Fort Collins and South Harmony, LLC entered into an agreement on January 28, 2002. 2. Reasonable Good Faith Reliance (2.13.10(C)(B)). The City issued construction permits for the Project and Applicant relied upon those permits and the Authorized Act (set forth above) by completing construction as approved. This constitutes reasonable and good faith reliance upon authorized acts of the City. In addition to construction of improvements discussed below, the City issued 59 building permits for condominiums, attached single family homes, patio covers, and a commercial pool and clubhouse in the Project and Applicant has since sold 138 homes to new residents. Permitting and acceptance dates for the Project are set forth below: a. Development Construction Permits Issued for: i. Brookfield—Phase I— 05/24/02—Permit#02-10 ii. Brookfield—Phase II —05/18/04—Permit 904-13 b. Development Acceptances i. City of Fort Collins Acceptances 1. Phase I — 11/02/04 2. Phase II—To Be Determined c. Fort Collins—Loveland Water and South Fort Collins Sanitation District provided final completion for Phase I on 02/04/03, and final completion for Phase II on 04/22/05. 3. Substantial Change in Position or Expenditure (2.13.10(C)(C—I)). Total Project Investment. The Applicant has budgeted $9,749,488.00 to develop the property. The Applicant has invested $8,733,755.00 in the acquisition, design and installation of the infrastructure improvements for the property. In addition, Applicant has and will continue to incur financing and construction costs in excess of these amounts. A summary of the Applicant's total project investment is attached hereto as Exhibit`B". The Applicant's investment includes the construction of offsite improvements, such as the Rock Creek Drive extension from Ziegler Road to the project, and the over-sizing of streets, sewer line and water lines to accommodate other developments in the area. On-site investments include the installation of Cinquefoil Lane, and Northern Lights Drive, north of Rock Creek Drive. All other on-site streets are installed. Dedication of Property to Public Entities. The Applicant has dedicated public rights-of-way per the Brookfield Final Plat. Infrastructure Improvements Sized Appropriately. The Applicant has installed the infrastructure improvements in accordance with the approved utility plans for the Project. The infrastructure improvements include the construction of offsite improvements, such as the Rock Creek Drive extension from Ziegler Road to the project, and the over-sizing of streets, sewer line and water lines to accommodate other developments in the area. Entitled Acreage. The ODP consists of approximately 42.39 gross acres. The Applicant has received FDP and Final Plat approval for the Brookfield Development. Diligent Completion of Project. As demonstrated under Reasonable Good Faith Reliance and Total Project Investment above, the Applicant has continued to diligently pursue completion of this Project. Effect on Existing Development Loans. Applicant's existing development loans on the Project are based upon the approved FDP and Final Plat and continued construction in accordance with those approvals. The Applicant risks violating the terms of those loans without a determination of vesting rights under the Land Use Code. Effect on Sales. Applicant's ability to sell units has slowed dramatically, due to the downturn in the market. Applicant believes that this will change in the future when the market returns, and sales will be back on track. Exhibit "A" A tract of land located Northeast '/4 of Section 4, Township 6 North, Range 68, West of the 6'h P.M.; City of Fort Collins, County of Larimer, State of Colorado. , z ^ Exhibit"B" Phase Phase I Paid to Date $ 3,812,030.12 Phase II Phase II Costs Paid To Date $ 1,450,694.89 Phase III Phase III Paid To Date $ 1,749,572.28 Phase IV Phase IV Costs Paid To Date $ 1,019,304.72 Commercial Phase V Costs Paid to Date $ 702,152.85 CLOSING 12/8/06 $ 8,733,754.86 RESOLUTION 2009-111 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS BETWEEN THE CITY AND SOUTH HARMONY, LLC 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 for 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, South Harmony, LLC is the owner of a tract of land located at the northeast corner of Cinquefoil Lane 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 Brookfield Subdivision; and WHEREAS, South Harmony, LLC 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 and incorporated herein by this reference as Exhibit"A"; and WHEREAS,upon examination of the facts,conclusions of law and determination contained in the Stipulated Determination of Vested Rights, the City 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 South Harmony, LLC,dated December 15,2009,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 15th day of December, A.D. 2009. Mayor ATTEST: City Clerk , EXHIBIT A STIPULATED,DETERMINATION OF VESTED RIGHTS This stipulated determination of vested rights is executed this day of December, 2009, by the City of Fort Collins ("City") and South Harmony, LLC ("Applicant'). FINDINGS OF FACT 1. Applicant is the owner of a tract of land (the "Property") located at the northeast corner of Cinquefoil Lane and Rock Creek Drive in the City of Fort Collins. The legal description of the Property is as follows: Brookfield Subdivision in the City of Fort Collins, Colorado, being a tract of land located in the Northeast Quarter of Section 4, Township 6 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado, containing 42.39 acres. Said parcel shall hereafter be referred to as the "Property". 2. The Property was annexed into the City in December 1999. 3. Following annexation of the Property into the City, an Overall Development Plan was approved for the Property on September 21, 2000, by the Planning and Zoning Board of the City. Subsequent to approval of the Overall Development Plan, a Project Development Plan was approved for the Property under the name `Brookfield" (hereafter referred to as the "Project'). The Project covers approximately 42.39 acres and includes a total of 298 dwelling units, 138 of which have been constructed and are now occupied with 150 dwelling units remaining to be constructed, and approximately 10 units either under construction or for sale and ready for construction. The final plan for Brookfield was approved on December 17, 2001, utility plans were approved on December 19, 2001, the Development Agreement was entered into on January 28, 2002, and the final plat was approved on January 28, 2002. 4. In accordance with the foregoing approved plans and Development Agreement, the Applicant obtained development construction permits for two phases of Brookfield, respectively on May 24, 2002, and May 18, 2004. The Fort Collins-Loveland Water District and the South Fort Collins Sanitation District also approved final completion for Phase I on February 4, 2003, and for Phase 11 on April 22, 2005. 5. The Brookfield final plan expired on January 28, 2009, in accordance with Section 2.2.11(D) of the Fort Collins Land Use Code. All engineering improvements related to the Project have not been completed as required by the Land Use Code for full vesting of the Project. Certain engineering improvements including water lines, sewer lines, streets, curbing, gutter, street lights, fire hydrants, and storm drainage improvements have yet to be fully completed. 1 6. The Applicant has budgeted $9,749,488.00 to develop the Property and has invested $8,733,755.00 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 "A". The foregoing investment includes the construction of off-site improvements such as the Rock Creek Drive extension from Ziegler Road to the Project and the oversizing of streets, sewer lines and water lines to accommodate other development in the area. The Applicant has also completed the construction of Cinquefoil Lane, and Northern Lights Drive, north of Rock Creek Drive. All other on-site streets have been completed. 7. The Applicant has dedicated public rights-of-way in accordance with the Brookfield final plat. The Applicant has installed infrastructure improvements in accordance with the approved utility plans. 8. The Applicant's existing development loans on the Property are based upon the approved final plan and plat and the continued construction of the Project in accordance therewith. 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. 9. On or about October 13, 2009, the Applicant filed a request for a vested rights determination with the City. On October 29, 2009, the Director of Planning, Development and Transportation 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 overall development plan, the Brookfield final plans, plat and development construction documents to complete the development in accordance with the previously approved plans. 10. 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 City. By approving the overall development plan and the final plats and plans for Brookfield Phase I and Phase Il, 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 rea§onably 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 and by obtaining the 2 issuance of approximately 148 building permits for houses on the Property and by generally proceeding to develop the property. 3. Substantial Change in Position or Expenditure. By budgeting approximately $9,749,488.00 and investing approximately $8,733,755.00 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 by constructing 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 the overall development plan and the Brookfield Phase I and Phase II final plans. 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 148 building permits have been issued for houses on the Property with some 138 homes having been sold to new residents. Furthermore, the financing and marketing activities that have been carried 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 overall development plan and the approved final plans for Brookfield Phase I and Phase II. 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 Project in accordance with the previously approved overall development plan, final plans and related development construction documents. CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By: �L- N Dari A. Atteberry, City Manager By: Step" J. k6y, City Atto y 3 ATTEST: O�FO••RT Cp�Wanda M. Krajicek, Ci Vrk • �O COLOEtP� SOUTH HARMONY, LLC, a Colorado Limited Liability Company yK Ie Brett W. Bennett, Manager Approved by City Council by Resolution No. dated December_, 2009. Wanda M. Krajicek, City Clerk 4 EXHIBIT"A" Phase I Phase I Paid to Date $ 3,812,030.12 Phase II Phase II Costs Paid to Date $ 1,450,694.89 Phase III Phase III Paid to Date $ 1,749,572.28 Phase IV Phase IV Costs Paid to Date $ 1,019,304.72 Commercial Phase V Costs Paid to Date $ 702,152.85 CLOSING 12/8/06 $ 8J339754.86 s