HomeMy WebLinkAboutAgenda - Read Before Packet - 5/7/2013 - Agenda Item #18 - Revised - Resolution 2013-038 Approving The Stipulated Determination Of Vested Rights Between The City And Horsetooth Development, LlcREVISED
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