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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/07/2013 - RESOLUTION 2013-038 APPROVING THE STIPULATED DETERREVISED DATE: May 7, 2013 STAFF: Darin Atteberry Steve Roy, Laurie Kadrich AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 18 SUBJECT Resolution 2013-038 Approving the Stipulated Determination of Vested Rights Between the City and Horsetooth Development, LLC. EXECUTIVE SUMMARY Horsetooth Development, LLC., is the developer of the Maple Hill Subdivision, a 155 acre development, and has completed all but one phase of the development. The plan expired on September 9, 2007. Accordingly, Horsetooth, LLC., has filed an application for a Determination of Vested Rights under Division 2.13 of the Land Use Code (LUC) 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 LUC establishes a procedure whereby the City can provide relief, where appropriate, to persons who claim that the application of the LUC has interfered with their vested rights to develop property. This procedure has been established to prevent manifest injustice in cases where application of the “lapse” provision of the LUC 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. Horsetooth Development, LLC., as the developer of the Maple Hill Subdivision, has completed all but one phase of the development. Federal regulators prohibited the developer’s lending institution from making additional loans or advances to the complete this project. However, the bank is now capable of moving forward and is able to fund the developer in the completion of the subdivision. The subdivision build-out includes a total of 530 dwelling units to which 152 remain to be completed due to the lack of infrastructure. The Development Agreement for the subdivision was approved on August 19, 2003. This development has lapsed due to the incompletion of this infrastructure, although the developer has continued (following the lapse of the plan) to pay the City for infrastructure improvements to Turnberry Road and for street oversizing improvements beneficial to the City. Because of this lapse, and due to the developer’s financial ability to complete the project, Horsetooth Development, LLC., has sought relief under the vested rights determination process set out in Division 2.13 of the LUC. Section 2.13.5 of the LUC 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 conclusion of law upon which the determination is based. Following annexation to the City in 1983, and in accordance with an approved Final Development Plan, the Applicant continued to pursue the completion of the project as funding was available. The Applicant also continued to sell completed lots to Aspen Homes during the recent recession and could have further continued to sell lots to Aspen Homes but for the financial collapse of the Applicant’s lender, Mile High Bank. The Applicant continued to financially support the project by paying over $750,000 in property taxes and by making payments to the City in accordance with the requirements of the Development Agreement for the project. The Applicant has expended approximately $122,104,617 $12,104,617 in the development of the project, $367,092 of which was for recent infrastructure improvements to Turnberry Road and $225,000 of which was for street oversizing improvement, beneficial to the City, and the Applicant has also dedicated 7.16 acres to the City for a park site, which dedication is valued at approximately $800,000. May 7, 2013 -2- ITEM 18 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 develop the property to completion and that Horsetooth Development, LLC., should be afforded another period of three (3) years from the date hereof, within which to complete the development of the project in accordance with the previously approved Final Development Plan and related development construction documents. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. ATTACHMENTS 1. Application for Determination of Vested Rights, March 25, 2013 2. Exhibit A; Project Costs 3. Vicinity Map Exhibit A MAPLE HILL SUBDIVISION SPENT TO BE SPENT PROJECT COSTS HARD SOFT Acquisition Costs $96,269 $0 Land purchase price $3,755,000 $0 Fees and permits $38,476 $9,000 Development agreement expenditures Offsite oversizing $225,000 County road 11 $367,092 Other $88,353 TOTAL $680,445 Management Consulting $234,312 $65,000 Engineering Construction Services $100,378 $20,000 Surveying $81,900 $29,300 Geotechnical Services $42,959 $23,500 Landscape / Fence $504,166 $317,625 Clearing $31,875 $0 Erosion Control $82,094 $28,112 Grading $348,204 $18,983 Sanitary Sewer $708,728 $120,204 Water distribution $585,482 $201,120 Irrigation $99,380 $77,986 Storm Sewer $369,211 $237,989 Concrete $416,612 $409,323 Paving $564,454 $508,037 Reimbursement -$32,152 -$104,532 Signage $20,344 $21,678 Dry Utilities $306,559 $309,600 OVERHEAD Legal $85,265 $15,000 Tax service $1,629 $1,500 Insurance $246,260 $85,000 Property Taxes $755,664 $80,000 Other $9,085 $4,000 Contingency $21,345 $20,000 G & A $113,955 $50,000 TOTAL OVERHEAD $1,233,203 $255,500 FINANCING COSTS $1,836,718 $350,000 Remaining Hard Construction Costs $1,828,500 Remaining Soft Costs $1,069,925 PROJECT TOTAL $12,104,617 $2,898,425 ATTACHMENT 2 Fort Collins Country Club Maple Hill Park Richards Lake Rd Turnberry Rd RESOLUTION 2013-038 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS BETWEEN THE CITY AND HORSETOOTH DEVELOPMENT, 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 contained in Section 2.2.11 of the Land Use Code; and WHEREAS, Horsetooth Development, LLC is the owner of a tract of land bounded generally by Turnberry Road, Country Club Road and Maple Hill Drive, which parcel of property has obtained City approval of a Final Plan for Maple Hill, Maple Hill First Replat, Maple Hill Second Replat, Maple Hill Third Replat and Maple Hill Fourth Replat (the “Final Plan”); and WHEREAS, Horsetooth Development, LLC, in reliance upon the approval by the City of the Final Plan, expended substantial sums of money, made substantial dedications of land to the City and otherwise substantially changed its position in reasonable good faith reliance upon the authorized acts of the City in approving the plan, 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 Horsetooth Development LLC, dated April 26, 2013, attached hereto and incorporated herein by this reference as Exhibit "A" is hereby approved. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 7th day of May A.D. 2013. Mayor ATTEST: City Clerk