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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/03/2012 - FIRST READING OF ORDINANCE NO. 031, 2012, AUTHORIZDATE: April 3, 2012 STAFF: Daylan Figgs Justin Scharton AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 14 SUBJECT First Reading of Ordinance No. 031, 2012, Authorizing Amendments to a Conservation Easement Held by the City on the Hansen Property. EXECUTIVE SUMMARY In July 2011, the First National Bank of Omaha foreclosed on Parcel II (south parcel) of the Hansen Ranch property, on which the City of Fort Collins Natural Areas Department (NAD) holds a conservation easement (CE). NAD also holds a conservation easement on Parcel I (north parcel). Once the Bank took possession of Parcel II, Ric and Myrna Hansen, who reside on Parcel I, denied the Bank access through the existing driveway that bisects their parcel and serves as the only access to Parcel II. This amendment to the easement grants permission for a driveway to be constructed to access Parcel II, while allowing the NAD to make needed corrections and updates to the easement deed. In return, the development right for a secondary residence on the Parcel II will be extinguished. The City will also take this opportunity to amend language in the CE to increase its oversight and enforcement capability on the CE and update some of the terms of the CE. BACKGROUND / DISCUSSION The City of Fort Collins placed a CE on the Hansen Ranch property, owned by Myrna Hansen, in 2004 as part of efforts to conserve land in the Timnath Community Separator area. The Hansen CE, along with the contiguous North and South Cribari CEs, also conserved by the City, are within the Town of Timnath’s Growth Management Area. In July 2011, the First National Bank of Omaha foreclosed on the south parcel (referred to as Parcel II) of the Hansen property. Following the foreclosure, the Hansens denied the Bank access to Parcel II via the driveway from County Road 42 through Parcel I. A temporary agreement was reached between the Hansens and the Bank that allows the Bank to access Parcel II until May 31, 2012. However, the Hansens are not interested in a long-term agreement and plan to restore the driveway to a two-track farm road in 2012. The Bank contacted the City to determine what steps were necessary to construct a new driveway to Parcel II. Upon review of the CE deed, NAD staff determined that the CE permitted construction of a new driveway for access to Parcel II, but only as part of the construction of a second residence on Parcel II, which the Bank was not planning to do. Therefore, an amendment to the CE would be necessary to allow a new driveway to be constructed. As such, NAD staff has worked collaboratively with the Bank and Hansens to create a package of amendments that would restore access to Parcel II, protect the Conservation Values of the Property, create a net conservation gain to the City, reflect separate ownership of the Parcels, and comply with the NAD Conservation Easement Amendment Policy and Procedure document. The main components of the amendment include: • The maintenance of one conservation easement that reflects separate ownership of the two parcels, allowing for independent management and enforcement of Parcel I and Parcel II • Removal of the development right for a secondary residence with a 1,000 square foot footprint on Parcel II • Granting permission to construct a new driveway approximately 2,200 feet in length on Parcel II with strict requirements as to the location, design, and construction materials to be used • Requiring Hansen’s to restore approximately 1,000 linear feet of existing driveway across Parcel I to a two- track “farm road” by 2013 • Addition of language that allows City to enter either Parcel without notice should staff have reason to believe a violation has taken place or is occurring • Addition of City oversight and approval authority with regard to oil and gas development on the Parcels • Strengthening Weed Control language • Addition of City oversight and approval authority for granting Utility Easements and Roads on the Parcels April 3, 2012 -2- ITEM 14 • Addition of language to clarify easement deed position on Public Roads and Improvements on Parcels • Other minor clarifications and clean-up items, including legal description correction • Update Management Plan for both Parcels While the Hansen CE contains contemporary language for the time period it was written, standard conservation easement language has evolved and is more comprehensive in CEs written today. In addition, every CE contains language that has been negotiated between the City and the individual landowner, inherently making each CE unique. The Hansen CE is representative of other older CEs in the City’s portfolio that may have older language that may not be in line with contemporary standards. With any opportunity to amend a CE, NAD staff will make every effort to negotiate with a willing landowner to update easement language to current form and standards. FINANCIAL / ECONOMIC IMPACTS There will be no economic impact to the City with approval of the amended conservation easement. ENVIRONMENTAL IMPACTS While there will be approximately 0.4 mile of new gravel driveway built on Parcel II, the impact to the environment is minimal as the route is within an agricultural pasture and the existing vegetation is primarily non-native smooth brome grass. This minor impact is mitigated by extinguishing the development right on Parcel II and by requiring the Hansen’s to restore the existing driveway on Parcel I to a two-track “farm road”. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BOARD / COMMISSION RECOMMENDATION At its March 14, 2012 meeting, the Land Conservation and Stewardship Board voted unanimously to recommend approval of the amended conservation easement. ATTACHMENTS 1. Location Map 2, Property Map 3. Land Conservation and Stewardship Board minutes, March 14, 2012 FOSSIL CREEK RESERVOIR COYOTE RIDGE NATURAL AREA LONG VIEW FARM OPEN SPACE CATHY FROMME PRAIRIE NATURAL AREA RUNNING DEER NATURAL AREA ARAPAHO BEND NATURAL AREA FOSSIL CREEK RESERVOIR REGIONAL OPEN SPACE RIVERBEND PONDS NATURAL AREA HAZALEUS NATURAL AREA RIVER BLUFFS OPEN SPACE VANGBO PROPERTY PELICAN MARSH NATURAL AREA ENVIRONMENTAL LEARNING CENTER FOSSIL CREEK WETLANDS NATURAL AREA KINGFISHER POINT NATURAL AREA COLINA MARIPOSA NATURAL AREA CATTAIL CHORUS NATURAL AREA EAGLE VIEW NATURAL AREA COTTONWOOD HOLLOW NATURAL AREA PRAIRIE DOG MEADOW NATURAL AREA FOSSIL CREEK RESERVOIR NATURAL AREA MCMURRY NATURAL AREA ARCHERY RANGE NATURAL AREA REDTAIL GROVE NATURAL AREA PROSPECT PONDS NATURAL AREA ROSS NATURAL AREA UDALL NATURAL AREA NORTH SHIELDS POND NATURAL AREA SALYER NATURAL AREA RED FOX MEADOWS NATURAL AREA TWO CREEKS NATURAL AREA FISCHER NATURAL AREA SPRINGER NATURAL AREA RIVER'S EDGE NATURAL AREA THE COTERIE LARIMER COUNTY LANDFILL REDWING MARSH NATURAL AREA MAGPIE MEANDER NATURAL AREA GUSTAV SWANSON NATURAL AREA MALLARD'S NEST NATURAL AREA WILLIAMS NATURAL AREA SHIELDS HARMONY VINE DRAKE COLLEGE TIMBERLINE PROSPECT TRILBY ZIEGLER MULBERRY LEMAY CARPENTER COUNTY ROAD 32 MOUNTAIN VISTA HORSETOOTH VINE LEMAY LEMAY HORSETOOTH COUNTY ROAD 42 Hansen Conservation Easement South Parcel Driveway Location Hansen CE Driveway Envelope Parcels 30 ft. Wide Driveway Envelope Cribari N CE Parcel Cribari S CE Parcel Hansen (CE Parcel South II) Parcel Hansen (ParcelCE Parcel North I) 0 125 250 500 ¹ Feet Created by City of Fort Collins Natural Areas - 2012 MINUTES CITY OF FORT COLLINS LAND CONSERVATION & STEWARDSHIP BOARD Regular Meeting DATE: Wednesday, March 14, 2012 LOCATION: 215 N. Mason, West Entrance, Conference Room 1-A TIME: 6:00 p.m. For Reference: Trudy Haines, Chair - 225-2760 Aislinn Kottwitz, Council Liaison - 692-9915 Mark Sears, Staff Liaison - 416-2096 Board Members Present –Trudy Haines, Linda Knowlton, Matt Lloyd, S. Kathryn Grimes, Linda Stanley, Ed Reifsnyder Board Members Excused – Michelle Grooms, K-Lynn Cameron, Scott Quayle Staff Present – Mark Sears, Daylan Figgs, Justin Scharton, Courtney Bennett Guests – Arvind Panjabi, Rocky Mountain Bird Observatory Jen Ammerman, First National Bank Jannessa Uhl-Carper, Community Member Rob Novak, Larimer County ________________________________________________________________________ Hansen CE Amendment Justin Scharton: Tonight I’ll be discussing a proposed amendment to the Hansen Conservation Easement. First, the Natural Area Department and all entities in Colorado that hold conservation easements went through a process with the Colorado Department of Regulatory Agencies Division of Real Estate Services. Together we created a conservation easement amendment policy and procedure. The Hansen Conservation Easement Amendment was invented through this policy and procedure. We can refer to the document for specific questions about legitimate reasons to amend conservation easements. Justin Scharton: The Hansen Conservation Easement is east of Archery Range Natural Area and west of Timnath reservoir. In 2004, Ric and Myrna Hansen placed a conservation easement on two parcels, parcel one (I), the northern parcel, and parcel two (II), the southern parcel. The Hansen Conservation Easement is part of the larger Timnath Separator Area which also includes Cribari North and Cribari South Conservation Easements which we hold. In July of 2011, the First National Bank of Omaha, by way of First National Bank in Fort Collins foreclosed on Parcel II from Ric and Myrna Hansen. The only access road to Parcel II is through Parcel I. There was a short-term agreement between the Bank and the Hansens that allowed access to Parcel II. The agreement expires May 1st and the Hansens are no longer interested in providing access across their property. The Bank approached the Natural Areas to find a way to provide access to the property. We worked with the Bank and created a package of amendments to the Conservation Easement that does several things. First, we require a net conservation gain as a result of the amendments; it has to be better, conservation wise then before. Highlight of amendments: The first amendment will recognize the individual parcels under the conservation easement. If one landowner violates the terms of the conservation easement it will not affect the other landowner. The second amendment is the removal of the development rights for a secondary residence with a 1000ft sq2 footprint on Parcel II. This is part of the net conservation gain. The Bank is willing to extinguish its development rights. The third amendment provides the bank access. We are proposing to grant a driveway, the easement deed the driveway specifics; generally it is a 16ft gravel driveway, from County Rd 42 at the north end, south within 30 feet of the boundary to where it connects with the current driveway. Finally, we are requiring the Hansens to restore 1000 linear feet of their driveway across Parcel I, which they have agreed too. A portion of the Hansen’s driveway will be restored to a two-track farm road. This is allowed under the conservation easement at will.  Linda Stanley: Why would they do that?  Justin Scharton: What is their motivation? They are just being collaborative at this point. They have also said that they don’t have any use for it, that they want to restore it, and put it back to a more rustic condition.  Matt Lloyd: So there is nothing stopping them from not doing that?  Justin Scharton: There is, we are requiring that they have it restored by the last day of 2012 or it is a material violation of the conservation easement.  S. Kathryn Grimes: Have the people on the left side been notified?  Justin Scharton: Yes, they have been notified. They don’t have any approval authority but because they are contiguous properties and because we hold their conservation easements we let them know. One other small detail is the fence line. We have to be very careful of where the Bank constructs the driveway to avoid ditches and other properties fence lines.  S. Kathryn Grimes: Is it possible to go on the right side of the property?  Justin Scharton: No, it wouldn’t work very well with the topography  Mark Sears: Is the little 30ft strip owned by Parcel I?  Justin Scharton: When the conservation easement was put in place, the idea was to develop Parcel II further and this was the idea for access, the 30 ft wide flagpole, as we like to call it, was the idea from the start. There is access to County Road 42, but under the conservation easement they are not allowed to build a drive way to it.  S. Kathryn Grimes: So this is the amendment, the amendment is the road?  Justin Scharton: Exactly, or it is one of the pieces.  Justin Scharton: We are adding net conservation gains, additional enforcement, additional language that allows the City to enter either Parcel without notice should staff have reason to believe a violation is taking place; adding City oversight and approval authority with regard to oil and gas development to the extent that is allowable by law; strengthening the noxious weed control language; adding City oversight and approval authority for granting Utility Easements and roads on the parcels; language to clarify the easement deed position on public roads and improvements; other minor clarification and clean-up items, including a legal description correction. The final piece of the amendment is the updates to the management plans governing both parcels.  Trudy Haines: I assume this is because the bank wants to sell, they need access, and it will be sold with the conservation easement on it. They are not interested in renting they just want to sell it. Sounds like a net gain. You guys have done really well working together and coming up with a good solution. It is too bad it went into foreclosure.  Justin Scharton: It is an unfortunate situation that has become a collaborative effort between all parties so far. It is still a moving target with small edits but this captures the large changes in to the conservation easement through the amendment process for which we are seeking approval. S. Kathryn Grimes moved that the Land Conservation Stewardship Board recommend that City Council approve an amendment to the Hansen Conservation Easement the City holds on the Hansen Ranch Property, as presented by Justin Scharton. Matt Lloyd second. Unanimously approved. ORDINANCE NO. 031, 2012 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING AMENDMENTS TO A CONSERVATION EASEMENT HELD BY THE CITY ON THE HANSEN PROPERTY WHEREAS, on July 21, 2004, Myrna Hansen granted the City a conservation easement (the “Conservation Easement”) on two parcels of farm land that she owned in the Timnath Community Separator area, as described on Exhibit A, attached and incorporated herein by reference (“Parcel I” and “Parcel II”); and WHEREAS, the Conservation Easement is managed by the City’s Natural Areas Department; and WHEREAS, at the time Mrs. Hansen granted the Conservation Easement, Parcel II was encumbered by a Deed of Trust held by First National Bank of Omaha (the “Bank”), and the Bank subordinated its Deed of Trust to the Conservation Easement; and WHEREAS, in 2011 the Bank foreclosed on Parcel II and took title to it on July 13, 2011, through a Public Trustee’s foreclosure sale; and WHEREAS, after the Bank foreclosed on Parcel II, the Hansens did not want to permit the Bank to access Parcel II via an existing driveway on Parcel I; and WHEREAS, under the terms of the Conservation Easement, the owner of Parcel II is allowed to construct another driveway on Parcel II to serve Parcel II, but only as part of the construction of a second residence on Parcel II, which the Bank was not planning to do; and WHEREAS, the Bank asked the City’s Natural Areas staff to amend the Conservation Easement to allow construction of the second driveway, and in exchange the Bank agreed to give up the right to build a second residence on Parcel II; and WHEREAS, through a series of negotiations with the Bank and the Hansens, staff has developed an Amended and Restated Deed of Conservation Easement (the “Amended Conservation Easement”), a copy of which is on file in the office of the City Clerk and available for review; and WHEREAS, the Amended Conservation Easement would address not only the second driveway and second residence on Parcel II, but would also update the terms of the original Conservation Easement to allow the two Parcels to be managed separately, and to strengthen the City’s oversight and enforcement capability of matters including oil and gas development, weed control, and easements and road on the Parcels; and WHEREAS, the City Council is being asked to approve the Amended Conservation Easement by ordinance because by changing the terms of the Conservation Easement, even though City staff expects a net benefit to the City from the proposed changes, the City is giving up some rights in real property that were previously granted to it; and WHEREAS, under Section 23-111(a) of the City Code, the City Council is authorized to sell, convey or otherwise dispose of any and all interests in real property owned in the name of the City, provided that the City Council first finds, by ordinance that such sale or other disposition is in the best interests of the City; and WHEREAS, at its regular meeting on March 14, 2012, the Land Conservation and Stewardship Board voted to recommend approval of the Amended Conservation Easement. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby finds that the amendments to the Conservation Easement as provided herein are in the best interests of the City. Section 2. That the Mayor is hereby authorized to execute an Amended Conservation Easement in substantially the form as is on file in the Office of the City Clerk, together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or to effectuate the purposes of this Ordinance, including, but not limited to, any necessary changes to the legal description of the Parcels conserved by the Amended Conservation Easement, as long as such changes do not materially reduce the size or change the character of the property. Introduced, considered favorably on first reading, and ordered published this 3rd day of April, A.D. 2012, and to be presented for final passage on the 17th day of April, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ Interim City Clerk Passed and adopted on final reading on the 17th day of April, A.D. 2012. _________________________________ Mayor ATTEST: _____________________________ Interim City Clerk EXHIBIT A (Property Description) Parcel I: A parcel of land situate in the Southwest ¼ of Section 23 and in the Northeast ¼ of the Northwest ¼ of Section 26, all in Township 7 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado, which, considering the South line of said Southwest ¼ as bearing S 88º56’31” E, and with all bearings contained herein relative thereto, is contained within the boundary lines which begin at a point which bears N 00º53’19” E 35.00 feet, and again S 88º56’31” E 1347.69 feet from the Southwest corner of said Section 23, and run thence S 88º 56’31” E 1287.77 feet; thence S 00º 46’03” W 35.00 feet to the North ¼ corner of said Section 26; thence along the East line of the Northwest ¼ of said Section 26, S 00º42'34" W 999.64 feet; thence S 78º00’18” W 1321.03 feet; thence N 00º45’05” E 1333.00 feet to the point of beginning. Parcel II: A parcel of land situate in the Southwest quarter of Section 23, and the Northwest quarter of Section 26. Township 7 North, Range 68 West, of the 6th P.M., County of Larimer, State of Colorado and being more particularly described as follows: Considering the North line of said Northwest quarter of Section 26 as bearing North 88º56’31” West and with all bearings contained herein relative thereto: Commencing at the Northwest corner of said Section 26, said point also being the TRUE POINT OF BEGINNING of this description; thence along the West line of said Southwest quarter of Section 23, North 00º53’19” East 35.00 feet; thence South 88º56’31” East 1347.69 feet; thence South 00º45’05” West 1333.00 feet; thence North 78º00’18” East 1321.03 feet to the East line of said Northwest quarter of Section 26; thence along said East line, South 00º42’34” West 1643.99 feet to the Center quarter corner of said Section 26; thence along the South line of said Northwest quarter of Section 26, North 89º04’50” West 1319.69 feet to the Center – West sixteenth corner; thence along the West line of the East half of said Northwest quarter of Section 26, North 00º45’05” East 2646.91 feet to the North line of said Northwest quarter of Section 26; thence along said North line, North 88º56’31” West 1317.77 feet to the true point of beginning. The above parcel contains 47.19 acres more or less, and is subject to all right- of-way, easements and restrictions now in use or on record. LATHAM COUNTY ROAD 1 WILLOX LINCOLN LAPORTE MAIN 4TH KECHTER BUSS GROVE COUNTY ROAD 5 COUNTY ROAD 48 COUNTY ROAD 52 GIDDINGS MASON COUNTRY CLUB COUNTY ROAD 30 REMINGTON TURNBERRY HOWES LAUREL THREE BELL COUNTY ROAD 50 COUNTY ROAD 32E GREGORY ELIZABETH COUNTY ROAD 3 PROSPECT 71ST RIVER PASS COUNTY ROAD 7 BOARDWALK SHIELDS COUNTY ROAD 9 JOHN F KENNEDY COUNTY ROAD 11 COUNTY ROAD 34C COUNTY ROAD 1 COUNTY ROAD 30 COUNTY ROAD 5 COUNTY ROAD 30 COLLEGE HIGHWAY 14 TERRY LAKE MULBERRYMULBERRY INTERSTATE25 25 INTERSTATE Hansen CE Location Map Natural Areas General City Natural Areas City Open Lands Other Agency Natural Areas Created by City of Fort Collins Natural Areas - 2012 Water Bodies ¹ City Natural Areas City Open Lands Other Agency Natural Areas 0 0.5 1 2 Miles Hansen CE