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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/06/2001 - RESOLUTION 2001-40 ESTABLISHING A POLICY FOR THE E lie AGENDA ITEM SUMMARY ITEM NUMBER: 37 DATE: March 6, 2001 FORT COLLINS CITY COUNCIL Cam McNair/ FROM: Ron Mills/Steve Roy SUBJECT : Resolution 2001-40 Establishing a Policy for the Exercise of the City's Eminent Domain Powers in Conjunction with the Development of Private Property. RECOMMENDATION: Staff recommends adoption of the Resolution. EXECUTIVE SUMMARY: This issue addresses a policy question: Should the City use its eminent domain powers in certain situations to assist in the acquisition of easements and rights-of-way that are necessary for construction of public improvements required of developers for private development projects? City staff recommends allowing the exercise of eminent domain authority in conjunction with development projects, when the following criteria have been met: • There is a sufficient public purpose to justify the acquisition by eminent domain; • It is clear that the eminent domain proceedings are not being commenced primarily to advance a private interest or private use; • The developer has, to the maximum extent possible, redesigned the project to alleviate or minimize the need for the proposed easement or right-of-way; • All reasonable efforts have been made to obtain the easements and/or rights-of-way by private agreement and those efforts have been unsuccessful; • The improvements for which the easements or rights-of-way are needed will be utilized by more than one person, partnership or other entity and are necessary to connect the proposed development with existing infrastructure, such as transportation, water, sewer, stormwater or other utilities; and • The developer has agreed to pay all costs of the property acquisition, including all City costs related to the eminent domain proceedings. DATEMarch 6, 2001 2 ITEM NUMBER: 37 BACKGROUND: Development projects are often required to construct public improvements "off-site", or off of the property owned and controlled by the developer. Examples of these off-site improvements could be utility connections, drainage improvements, street widenings, and so forth. The City requires the developer to construct such improvements in order to mitigate the impacts of the development. CURRENT POLICY: At present, the developer is responsible for acquiring all necessary easements and/or rights-of-way from the property owners. Then those easements and/or rights-of-way are dedicated to the City or eventual owner (i.e., utility district, or whomever will ultimately be responsible for maintaining the easement area or right-of-way). PROBLEM: Developers operating in the private arena sometimes have difficulty acquiring these easements or rights- of-way for off-site public improvements. Some property owners are not in favor of the development in the first place and are unwilling to sell at any price. Some try to exact exorbitant prices for the properties the developer is required to purchase. i WHY IS THIS A CONCERN? City policies encourage infill development and connections between subdivisions. When infill development occurs, there is a likelihood that off-site improvements will be needed, and that easements and/or rights-of-way will have to be acquired. On occasion, an off-site property owner can stop the improvements the developer must construct in connection with the development simply because the developer is at the mercy of the property owner. Thus, a single property owner can block improvements that have important benefits to the public at large. CONCLUSION: Developers occasionally will ask the City for assistance when they find themselves caught between a need to acquire property for easements or rights-of-way, and a property owner who is unwilling to sell I or is demanding an unreasonable price. Historically, staff has been reluctant to seek Council authorization of eminent domain proceedings in such instances, even when there is a clear public benefit. The question is whether the current Council wishes to approve a change in direction to allow limited use of eminent domain in the situation described above. Staff recommends doing so under the narrowly defined circumstances and conditions contained in the attached resolution. I i RESOLUTION 2001-40 OF THE COUNCIL OF THE CITY OF FORT COLLINS ESTABLISHING A POLICY FOR THE EXERCISE OF THE CITY'S EMINENT DOMAIN POWERS IN CONJUNCTION WITH THE DEVELOPMENT OF PRIVATE PROPERTY WHEREAS,the City of Fort Collins(the "City"),as a home rule municipality, is authorized under Article XX,Sections I and 6 of the Colorado Constitution to purchase and hold real property and,within or without its territorial limits,to acquire interests in such property for public use by right of eminent domain; and WHEREAS, the City's need to acquire real property generally arises in the context of the City's own capital projects; and WHEREAS, the City has, through the adoption of its Land Use Code, established a policy of requiring the developers of private property to design and construct certain off-site public improvements that are needed to offset the impacts that the proposed developments will have upon the City's transportation system, utilities, parks and other public facilities; and WHEREAS, this policy of having development "pay its own way" frequently results in the construction of public infrastructure at no cost to the City that not only benefits particular developments but also serves an important public purpose and benefits the community at large; and WHEREAS, these off-site improvements often necessitate the acquisition of easements or rights-of-way by developers to be dedicated to the City and/or other publicly owned or publicly regulated utility agencies; and WHEREAS,developers are sometimes unable to proceed with development projects because of their inability to obtain these necessary easements or rights-of-way by agreement with the property owner; and WHEREAS, the City Council believes that some of these property acquisitions that are necessary for the installation of public infrastructure should be supported,if necessary,by the City's exercise of its eminent domain powers,because of the public purpose and benefit involved in such acquisitions; and WHEREAS, for the foregoing reasons, the City Council wishes to establish the guidelines provided below to help staff identify situations in which the City's use of its eminent domain powers may be appropriate in conjunction with the development of private property. NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Manager,in reviewing requests from private developers for the City's exercise of its eminent domain powers, shall review such requests and present for Council's consideration proposed real property acquisitions through the use of eminent domain when the following circumstances exist: (a) There is a sufficient public purpose to justify the acquisition by eminent domain; (b) It is clear that the eminent domain proceedings are not being commenced primarily to advance a private interest or private use; (c) The developer has, to the maximum extent possible, redesigned the project to alleviate or minimize the need for the proposed easement or right-of-way; (d) All reasonable efforts have been made to obtain the easements and/or rights-of-way by private agreement and those efforts have been unsuccessful; (e) The improvements for which the easements or rights-of-way are needed will be utilized by more than one person, partnership or other entity and are necessary to connect the proposed development with existing infrastructure, such as transportation, water, sewer, stormwater or other utilities; and (f) The developer has agreed to pay all costs of the property acquisition, including all City costs related to the eminent domain proceedings. Section 2. Any such proposed eminent domain action shall be closely reviewed by the City Council to ensure that the primary purpose of acquiring the real property in question is public in nature and that the acquisition of the same is necessary in the public interest,notwithstanding any incidental private benefit that may be conferred upon the developer submitting the condemnation request to the City. Section 3. The discretion to determine whether the criteria set forth in Section 1 above have been met shall be vested solely in the City Council. Nothing herein shall be construed as limiting,or imposing additional conditions upon,the City's ability to exercise its powers of eminent domain as authorized in the Colorado Constitution and statutes and the ordinances of the City. Passed and adopted at a regular meeting of the City Council held this 6th day of March,A.D. 2001. Mayor ATTEST: City Clerk