HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 07/06/2010 - FIRST READING OF ORDINANCE NO. 088, 2010, EXEMPTIN DATE: July 6, 2010 SUMMARYAGENDA ITEM
STAFF: Helen Matson _
T COLLINS CITY COUNCIL
Ron Kechter
First Reading of Ordinance No. 088, 2010, Exempting the Fort Collins Discovery Museum Project from the
Requirement of Section 2.2.3(C)(3)(a) of the Land Use Code.
EXECUTIVE SUMMARY
The location of the planned Discovery Museum is on a portion of City-owned property known as Martinez Park. The
project team has been moving forward with its design for quite some time. As part of this process, City staff ordered
a title commitment to show that the City is the owner of the Facility site. During the title research process, the title
company discovered a small area of land had not been included in any of the property conveyances since 1879. In
order for the project to continue upon its planned schedule and to avoid negative impacts to the project budget, staff
is requesting that Council, through this Ordinance, exempt the parcel from the Land Use Code requirement that all
owners of recorded fee interests in the Facility property sign the plat; and authorize the City Manager and the City
Attorney to respectively sign and certify the Facility plat on behalf of the City as owner of the property shown on the
plat, including the parcel.
BACKGROUND / DISCUSSION
The City is the owner of multiple parcels of land at the east end of Lee Martinez Park located between Cherry Street
on the south and the Poudre River on the north. This site was selected as the location of the new Discovery Museum
facility("Facility"). The City is building the Facility in accordance with the Operating Agreement between the City and
the Discovery Science Center,dated March 11,2008("Agreement"). The Agreement states that upon completion of
the Facility, and in accordance with Ordinance No. 013, 2008, the City will convey the Facility site to the City and the
Discovery Science Center as tenants in common.
In recent months,the City, as present owner and developer of the Facility, has been taking the Facility project through
the'City's standard development review process in accordance with the City's Land Use Code. When the plat and
plans for the Facility are completed and approved,the City as owner and developer will have to certify on the plat that
the plat has been signed by all current owners of any recorded fee interest in the land shown on the plat.
In preparing the plans and plat for the Facility, City staff mapped out all the various parcels of land making up the
Facility site and discovered a small tract of land, approximately.217 acres in size, for which record ownership is not
clear(the"Parcel"). In 1877, the owner of the property that included the Parcel conveyed some rights in the Parcel
to the Colorado Central Railroad for a railway line. That owner then excluded the Parcel from a later conveyance of
his property. The Railroad never built a rail line through the Parcel and eventually abandoned or vacated its rights in
the Parcel, creating some question as to who now has record ownership of the Parcel.
The City has owned all the property surrounding the Parcel for at least 65 years, and previously no one on City staff
had any reason to think that the Parcel was not part of the City-owned property. The City has managed and
maintained the Parcel as Park property, and a portion of a City trail has cut across the Parcel for at least 25 years.
Even the title company that reviewed title for the Facility project believed the City owned all the relevant property until
the City's mapping showed otherwise.
Under the Land Use Code, construction of the Facility cannot begin until the Facility plat is approved and signed, and
the plat cannot be finalized until the owners of all recorded fee interests in the subject property have signed. Staff is
trying to determine who any possible record owners of the Parcel may be, with the goal of quieting title to the Parcel
through a court proceeding, if necessary. However, a quiet title action will take months to complete, significantly
delaying construction of the Facility. Staff considered the possibility of redesigning the Facility to avoid the Parcel, but
without the Parcel the site is too constrained to make development of the Facility work in an acceptable way.
July 6 2010 -2- ITEM 21
City staff believes that the City has already acquired title to an absolute fee interest in the Parcel through the legal
doctrine of"adverse possession". The general test for adverse possession is that a party in possession of land could
claim to have obtained title by adverse possession with proof that,such possession was:
1. open and notorious (occupying property in a way that would put the owner on notice of one's claim),
2. hostile and under a claim of right(occupying property with the belief that it is one's own),
3. adverse (that is, not just a use permitted by the owner),
4. actual (using the property in a way that is similar to the typical use of the property),
5. exclusive (not sharing possession with the record owner), and
6. uninterrupted for the statutory period (in Colorado, eighteen years).
Adverse possession does not, however, give an owner record title to a property until title to the property is quieted
through a court action, and the Land Use Code requires that a plat be signed by all record owners. For this reason,
staff is asking the Council,through this ordinance,to exempt the Facility project from the Land Use Code requirement
that all owners of recorded fee interests in the Facility property sign the plat; and to authorize the City Manager and
the City Attorney to sign and certify the Facility plat and site plan on behalf of the City as owner of the property shown
on the plat and site plan, including the Parcel. Staff will proceed with the quiet title action (based on adverse
possession)to obtain record ownership of the Parcel.
FINANCIAL/ ECONOMIC IMPACTS
Delay of this project will have significant financial impact,since the project could be delayed 4-6 months while awaiting
the completion of the quiet title action. Since the Contractor has mobilized, we would be paying, as a minimum, their
Home Office and Field Office Overheads, with a %fee tacked on. These costs could be in the range of$500,000-
$700,000. Additionally, delaying the start of the project would place the project in the wrong sequence with the
seasons. Instead of starting in the summer and having the building closed-in before winter, the project would be
started in the fall and closing the building during the winter. This would result insubstantial inefficiencies and possible
weather delays, depending upon how early cold weather actually happens. Because of this unpredictability, it would
be hard to attach a cost, but it could be as much as another$500,000. These are funds that are currently not available
and would make additional fund raising necessary.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
ATTACHMENTS
1. Location map
Attachment 1
Fort Collins Discovery
Museum Site Location Map
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Parcel Location
ORDINANCE NO. 088, 2010
OF THE COUNCIL OF THE CITY OF FORT COLLINS
EXEMPTING THE FORT COLLINS DISCOVERY MUSEUM PROJECT FROM
THE REQUIREMENT OF SECTION 2.2.3(C)(3)(a) OF THE LAND USE CODE
WHEREAS, the City is the owner of certain parcels of real property located in Larimer
County Colorado known as-�Lee Martinez Park" (the "Park Property"); and
WHEREAS,a portion of the Park Property at the north end of Mason Street between Cherry
Street and the Poudre River was chosen as the site for development of the new Fort Collins
Discovery Museum facility (the "Facility"); and
WHEREAS, the Facility will be constructed by the City as per the terms of the Operating
Agreement between the City and the Discovery Science Center dated March 11, 2008; and
WHEREAS,Section 1.2.4 of the City's Land Use Code states that the provisions of the Land
Use Code apply to all development within the City, and that no development can be undertaken
without prior and proper approval or authorization pursuant to the terms of the Land Use Code;and
WHEREAS, Section 2.2.3(C)(3)(a) of the Land Use Code requires that all final plats
submitted to the City be signed by all current owners of any recorded fee interest in the land
described on the plat; and
WHEREAS, City policy also requires that the lawful owner of real property described on a
site plan certify the site plan; and
WHEREAS,in preparing the plat and plans for the Facility,City staff mapped all the parcels
of land that make up the Facility site and discovered a small parcel of land(the"Parcel") for which
record ownership is unclear; and
WHEREAS, the Parcel is shown and described on Exhibit "A",attached and incorporated
herein; and
WHEREAS, the City has owned all the Park Property surrounding the Parcel for at least 65
years, and has managed and maintained the Parcel as part of the Park Property, and a portion of a
City trail has cut across the Parcel, for at least 25 years; and
WHEREAS,City staff intends to obtain record title to the Parcel through a quiet title action
in the District Court,but until that process is completed,the City is unable to certify on the Facility
plat that all record owners of the property shown on such plat have signed the plat; and
WHEREAS, a delay in finalizing the plat would also significantly delay construction of the
Facility, increasing the cost of the construction project; and
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WHEREAS, the City Council has the power to exempt the City from the requirements of a
City ordinance through enactment of a new ordinance; and
WHEREAS, it is likely that the City has already obtained fee title to the Parcel under the
theory of adverse possession; and
WHEREAS, the general test for adverse possession in Colorado is that a party must have
possessed a property with proof that such possession was: (a) open and notorious; (b) hostile and
under a claim of right; (c) actual; (d) exclusive; and (e) uninterrupted for the statutory period of
eighteen years; and
WHEREAS, the City has been occupying, managing and maintaining the Parcel as part of
the City's Park Property on an ongoing basis for more than eighteen years, using the Parcel in the
same way the City has used the surrounding Park Property (including putting a public trail on the
Parcel), under a good-faith belief that the City owned the Parcel; and
WHEREAS,the City's possession of the Parcel has been exclusive,that is, not shared with
any owner of record, and adverse to any owner of record;
WHERE,to staff s knowledge,no party other than the City claims ownership of the Parcel;
and
WHEREAS, for the foregoing reasons, City staff is asking that the Council, with respect to
the Facility project, waive Section 2.2.3(C)(3)(a) of the Land Use Code, which requires that the
Facility plat be signed by all current owners of any recorded fee interest, and that the Council
authorize the City Attorney's office and the City Manager to certify and sign the plat and site plan
on behalf of the City as owner of the property described on the plat and site plan, including the
Parcel.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby waives for the Fort Collins Discovery Museum
project the requirement of Section 2.2.3(C)(3)(a)of the Land Use Code that the plat be signed by all
current owners of any recorded fee interest in the surface of the land described on the plat.
Section 2. That, based upon the City's historic possession and use of the Parcel as
described above,the City Council hereby authorizes the City Manager and the City Attorney to sign
and certify the Fort Collins Discovery Museum plat and site plan on behalf of the City as current
owner of the fee interest in the surface of the land described on the plat and as lawful owner of the
real property described on the site plan, including the Parcel.
Section 3. That the City Attorney's office is hereby directed to commence a quiet title
action to establish record ownership of the Parcel.
-2-
Introduced,considered favorably on first reading,and ordered published this 6th day of July,
A.D. 2010, and to be presented for final passage on the 20th day of July, A.D. 2010.
Mayor
ATTEST:
City Clerk
Passed and adopted on final reading on the 20th day of July, A.D. 2010.
Mayor
ATTEST:
City Clerk
-3-
Exhibit"A"
Property Description
A tract of land located in the Northeast Quarter of Section 11, Township 7 North,
Range 69 West of the 6th Principal Meridian, County of Larimer, State of Colorado
being more particularly described as follows:
Considering the East line of the Northeast Quarter of said Section 11 as bearing South
00°23'31" West, and with all bearings contained herein relative thereto:
Commencing at the Northeast comer of said Section 11; thence along the East line of
said Northeast Quarter, South 00°23'31" West, 1406.79 feet; thence,North 89°42'43"
West, 60.00 feet to the West right-of-way line of North College Avenue, said point also
being the Southeast corner of Block 24; thence along the South line of said Block 24
and the North right-of-way line of Cherry Street, North 89°42'43"West, 515.53 feet to
the East right-of-way line of Mason Court; thence along said East line by the following
two (2) courses and distances: North 00°17'17"East, 92.45 feet; thence along a tangent
curve concave to the West having a central angle of 25°15'22", a radius of 120.50 feet
and the chord of which bears North 12°20'24"West, 52.69 feet to a point on the East
line of Tract A, Mason Street North; thence along said East line,North 00'17'17"East,
68.18 feet to the North line of that tract of land recorded at Reception No. 97041141,
Larimer County Records; thence along said North line, South 68°l T02" East, 50.92
feet to a point on the West line of Block 24, said point being the POINT OF
BEGINNING; thence along said West line,North 00°23'31" East, 179.56 feet to the
Northerly line of that tract of land recorded in Book 781 at Page 136, Larimer County
Records; thence along the Northerly and Westerly lines of said tract the following two
(2) courses and distances: South 89°42'43" East, 50.00 feet; thence, South 00°23'31"
West, 196.90 feet to a point on the North line of that tract of land recorded at Reception
No. 97041141, Larimer County Records; thence along said North line by the following
two (2) courses and distances: North 87°46'05" West, 6.34 feet; thence, North
68°17'02" West, 46.87 feet to the Point of Beginning.
The above described tract contains 0.217 acres more or less and is subject to all
easements and rights-of-way now on record or existing.
June 2, 2010
LMM
S:\Survey Jobs\532-003\Descriptions\532-003 PARCEL EAST_6-2-2010.doc
EXHIBIT A
A TRACT OF LAND BEING A PORTION OF THE NORTHEAST 1/4 OF
SECTION 11 TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6th P.M.,
CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO.
LINE TABLE
LINE DIRECTION LENGTH
Li N00-17'1TE 92.45
Lz N00'1717'E 68.18'
OF
CURVE TABLE L3 S68°17W'E 50.92' POINT
COMMENCEMENT
CURVE I DELTA RADIUS LENGTH BEARING I CHORD L4 N00'2331-E 179.56• FOUND 3"BRASS CAP IN BOX
Cl 25-15'22' 120.50' 1 53.12' 1 NV 1 52.69' 1 L5 S89.4243-E 50.00' NORTHEAST CORNER OF
L6 S00'23'3M 196.9v SECTION 11-T7N-R69W
L7 N87'46'05" 6.34'
L8 468017'02W 46AT
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