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HomeMy WebLinkAboutMemo - Read Before Packet - 3/3/2020 - Letter From Carolynn White, Brownstein Hyatt Farber Schreck Re: Harmony Corridor Plan Amendment For The Gateway Area (Agenda Item #8)Carolynne C. White Attorney at Law 303.223.1197 tel 303.223.0997 fax cwhite@bhfs.com 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 main 303.223.1100 bhfs.com Brownstein Hyatt Farber Schreck, LLP February 28, 2020 VIA ELECTRONIC MAIL AND REGULAR MAIL Fort Collins City Council Wade Troxell, Mayor 300 LaPorte Avenue Fort Collins, CO 80521 RE: March 3, 2020 City Council, Harmony Corridor Plan Amendment for the Gateway Area (the “Amendment”) – Support for Planning Board Recommendation; Opposition Otherwise Dear City Council: This firm represents Harmony-McMurray, LLC (the “Owner”), the owner or contract purchaser of virtually all of the privately owned property (the “Property”) within the proposed Harmony Corridor Gateway area (the “Area”). In this letter, we set forth a summary of Owner’s comments on the proposed Amendment for the consideration of the City Council and for the record. As discussed in the February 6, 2020, letter to the Planning and Zoning Board (the “Planning Board”), the Owner generally agrees that the Harmony Corridor Plan and existing zoning in the Area is somewhat outdated. The Owner also agrees that an amendment should diversify the desired mix of land uses allowed within the Area and ultimately should allow a mix of uses more tailored to current market needs in the City, and even has previously sought to propose an amendment with similar goals. The owner opposes the City staff recommendation that 40% of the land area must remain undeveloped, unless the City also incorporates the Planning Board’s recommendation from its February 20, 2020 meeting that the City must compensate the Owner for such land. Details regarding the process for determining fair market value for compensation and the timing of such compensation would still need to be worked out, but the Planning Board’s recommendation appropriately recognizes the problem with the 40% open space requirement, absent compensation. As discussed in our February 6, 2020 letter to the Planning Board and at the Planning Board meeting on February 20, 2020, the existing constraints on development already make the Property very difficult and expensive to develop. The Property was originally a gravel mine, and still includes several former gravel pits, now full of water. These gravel pits must be filled at significant cost to the Owner before the Property can be developed, and the water presently filling them cannot be maintained. The Property also is located within a flood zone, so the Owner will have to design and construct a floodway channel before it can develop the Property, a lengthy and costly process that will require coordination with FEMA and CDOT, as well as the City, making development difficult and expensive. Additionally, the Property overlies a high water table, and any utilities must be installed at a greater depth, and pursuant to more stringent specifications, further increasing the cost to develop the Property. Fort Collins City Council February 28, 2020 Page 2 2 Following a lengthy and robust deliberation at its February 20, 2020 meeting, the Planning Board opted to recommend that City Council adopt the Amendment, “with the condition that the City of Fort Collins participates with private land owners in the creation, management and maintenance of 40% natural area created within the ODP. City participation would include purchasing or contributing in other financial manners and maintaining in perpetuity for public enjoyment. The Harmony Corridor Plan is in need of proposed amendments and proposed amendments will promote public welfare and be consistent with vision, goals, principals, and policies of city plan and the elements thereof. The information and findings contained in this staff report prepared for this hearing are adopted by the Board.” By recommending the Amendment to City Council with the addition of the condition regarding the City’s financial participation, several members of the Planning Board stated concerns about the infringement of private property rights that would occur with the 40% undeveloped open space, if no compensation were provided. The Planning Board members noted that this requirement is excessive compared to the amount of open space required elsewhere in Fort Collins, and some expressed concerns about the cost to install and maintain landscaping on such a significant open space area being imposed on a property owner. During the discussion, several Board members even likened the Amendment as originally proposed to an ordinance requiring private landowners to maintain the Pioneer Museum, a duty clearly belonging to the City. These Board members were concerned that, without the condition approved by the Planning Board, the City would be putting too much onus on the private landowners in the Area, and the 40% natural area requirement would take private landowners’ property without just compensation. The Planning Board also incorporated citizen concerns regarding cultural uses raised at the meeting into its recommendation by including language that “40% [of the Area] could be in fact covered in part by up to 20% of cultural amenities with the City being obligated to participate in the purchase of the open space.” The Owner does not object to this additional modification although this issue is not central to its concerns. Fundamentally, the Owner has already spent a great deal of time and resources evaluating and designing solutions for the existing considerable constraints, and has worked with City staff to evaluate alternative development scenarios to make development of the Property feasible. Imposition of the originally proposed 40% open space requirement, without the Planning Board’s recommendation to include a financial participation, would render that work meaningless, and the property undevelopable. Also, the Owner objects to the Standards and Guidelines requiring 140–190 foot setbacks from Harmony Road and I-25. Nowhere else in the City does the Code or Comprehensive Plan require such significant setbacks – not even in places with extraordinary habitat or wildlife value. While some people may believe the Property contains extraordinary habitat or wildlife value in need of additional protection, it should be noted that the City has declined on several occasions to purchase or even to accept a donation of any portion of the Property as a natural area. Without the condition on the Amendment requiring the City to purchase or contribute financially to the 40% open space, the 40% open space requirement would take approximately 55 acres from the Owner, and would increase landscaping and maintenance costs not only for the 55 acres of natural area, but for the entire Property. Similarly, the 140–190 foot setback and landscaped buffer requirements would take approximately 12 acres from the Owner, while also increasing landscaping and maintenance costs for the entire Property. When added to the existing constraints on development of the Property, the significant setbacks in the Standards and Guidelines and the 40% natural area requirement without the Planning Board’s recommended condition and without the City Council’s added language regarding timeframe, compensation, and maintenance of the natural area would push the Property over the brink, rendering it infeasible to develop, and depriving the Owner of its property. Fort Collins City Council February 28, 2020 Page 3 3 The City is essentially seeking to acquire open space and community separators without paying for either. There is clear history demonstrating that the City has sought to prevent or severely limit development on this property dating back to at least 2005. Since 2005, the City’s position has been confirmed in a variety of City staff summaries, presentations, and memos, and City representatives have publically confirmed this position opposing development of the Property on several occasions. Notably, page 4 of the Staff memo to the Planning Board reaffirms that City staff have considered the opportunity to purchase the Property but have declined due to “costs and liabilities of mining permit closeout, water augmentation and site restoration.” Within the last 60 days the Owner has again proposed to the City that the City consider purchasing or accepting a donation of all or a portion of the Property to be slated as natural area, which the City has again declined. Furthermore, the onerous requirement of 40% undeveloped land in the proposed Amendment applied only to property located south of Harmony Road – e.g. the Owner’s Property - until the Owner raised its concern with City staff that this requirement would constitute an unlawful taking.. However, now the most recent draft of the Amendment was revised shortly before submittal to the Planning & Zoning Board, and applies the Amendment and all of the supporting Standards and Guidelines to the entire Gateway, both north and south of Harmony Road, even though all of the City annexed property north of Harmony Road is owned by the City. This sequence of events indicates a clear understanding of, and attempt to mitigate, the legal argument Owner is raising. However it cannot be effective because the application of the Amendment to the north side of Harmony Road is a distinction without a difference. Owner was the only private property owner affected by this Amendment prior to the last-minute revision, and remains the only private property owner affected after the last minute revision. Nor has this change been discussed in any of the numerous public forums conducted by the City related to the Harmony Corridor over the last 18 months. As numerous state and federal courts have noted over the years, it is not fair to require a single property owner to bear a public burden which in all fairness and justice should be borne by the public as a whole. Indeed, this concept is enshrined in the United States Constitution, the Colorado Constitution, and the Colorado Revised Statutes. If the City wants the private property located within the Harmony Corridor Gateway to be open space, then the City should purchase it and operate and maintain it as open space. As the Planning Board recognized, to impose this requirement legislatively without compensation, particularly in a manner which renders development of the Property infeasible, constitutes a taking. When a local government regulates property owners in such a way as to prevent the property owner from using his or her land, and instead requires that the land is used for the public benefit, the local government is overstepping its role, and must compensate the private property owner for the land owner’s loss of land. The requirement to leave at least 40% of the property undeveloped (with or without the option to allow up to 20% to be a cultural use), without a requirement that the City purchase or contribute in other financial manners and maintain the area in perpetuity for public enjoyment, particularly in light of the City’s repeated stated desire to maintain the Property as open space, while declining to purchase it, takes the Owner’s property without compensation, which is prohibited under state and federal law. The City must understand that the Owner cannot allow such a taking to occur without taking appropriate action to protect its property rights. If the City approves the Amendment, without the Planning Board modification to provide compensation, the Owner will have no alternative but to take legal action to preserve its rights. Thank you for the opportunity to comment on the Amendment, and, at a minimum, to ensure that the record reflects the viewpoint of the Owner. We request that the City Council either adopt the Amendment Fort Collins City Council February 28, 2020 Page 4 4 with the Planning Board recommended Amendment, or decline to adopt the Amendment if the Planning Board’s recommendation is not incorporated. Sincerely, Carolynne C. White cc: Brad Yatabe, Deputy City Attorney Carrie Daggett, City Attorney 20345395.6 From: Sarah Kane To: City Leaders Cc: Cameron Gloss Subject: Letter from Brownstein Hyatt Farber Schreck re: Harmony Corridor Plan Amendment Date: Monday, March 2, 2020 10:41:00 AM Attachments: Harmony McMurray LLC - Letter to City Council re Harmony Corridor Plan A....pdf image001.png Council, Please see the attached letter from Carolynne White. I will include hard copies in tomorrow’s Read- before packet. Thank you. . . . . . . . . . . . . . . . Sarah Kane Executive Administrative Assistant to Deputy City Manager Jeff Mihelich and Mayor Wade Troxell City Manager’s Office City of Fort Collins PO Box 580 300 Laporte Avenue, Building A 970-416-2447 office skane@fcgov.com