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HomeMy WebLinkAbout2009-111-12/15/2009-APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS BETWEEN THE CITY AND SOUTH HARMONY, LLC RESOLUTION 2009-111 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS BETWEEN THE CITY AND SOUTH HARMONY, 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 as contained in Section 2.2.11 of the Land Use Code; and WHEREAS, South Harmony, LLC is the owner of a tract of land located at the northeast corner of Cinquefoil Lane and Rock Creek Drive in the City,which parcel of property has obtained City approval of an overall development plan and final plan approval for Brookfield Subdivision; and WHEREAS, South Harmony, LLC has, in reliance upon the approval by the City of the aforesaid overall development plan and final plans, expended substantial sums of money and otherwise substantially changed its position in reasonable good faith reliance upon the authorized acts of the City in approving the plans,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 South Harmony, LLC,dated December 15,2009,attached hereto and incorporated herein by this reference as Exhibit "A" is hereby approved. Passed and adopted at a regular meeting of th4Mayor ' held this 15th day of December, A.D. 2009. �A TEST: c• City Clerk EXHIBIT A STIPULATED DETERMINATION OF VESTED RIGHTS This stipulated determination of vested rights is executed this V�_ day of December, 2009, by the City of Fort Collins ("City") and South Harmony, LLC ("Applicant"). FINDINGS OF FACT 1. Applicant is the owner of a tract of land (the "Property") located at the northeast corner of Cinquefoil Lane and Rock Creek Drive in the City of Fort Collins. The legal description of the Property is as follows: Brookfield Subdivision in the City of Fort Collins, Colorado, being a tract of land located in the Northeast Quarter of Section 4, Township 6 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado, containing 42.39 acres. Said parcel shall hereafter be referred to as the "Property". 2. The Property was annexed into the City in December 1999. 3. Following annexation of the Property into the City, an Overall Development Plan was approved for the Property on September 21, 2000, by the Planning and Zoning Board of the City. Subsequent to approval of the Overall Development Plan, a Project Development Plan was approved for the Property under the name "Brookfield" (hereafter referred to as the "Project'). The Project covers approximately 42.39 acres and includes a total of 298 dwelling units, 138 of which have been constructed and are now occupied with 150 dwelling units remaining to be constructed, and approximately 10 units either under construction or for sale and ready for construction. The final plan for Brookfield was approved on December 17, 2001, utility plans were approved on December 19, 2001, the Development Agreement was entered into on January 28, 2002, and the final plat was approved on January 28, 2002. 4. In accordance with the foregoing approved plans and Development Agreement, the Applicant obtained development construction permits for two phases of Brookfield, respectively on May 24, 2002, and May 18, 2004. The Fort Collins-Loveland Water District and the South Fort Collins Sanitation District also approved final completion for Phase I on February 4, 2003, and for Phase H on April 22, 2005. 5. . The Brookfield final plan expired on January 28, 2009, in accordance with Section 2.2.11(D) of the Fort Collins Land Use Code. All engineering improvements related to the Project have not been completed as required by the Land Use Code for full vesting of the Project. Certain engineering improvements including water lines, sewer lines, streets, curbing, gutter, street lights, fire hydrants, and storm drainage improvements have yet to be fully completed. 6. The Applicant has budgeted $9,749,488.00 to develop the Property and has invested $8,733,755.00 in the acquisition, design, and installation of infrastructure improvements for the Property. The Applicant has and will continue to incur financing and construction costs in excess of the aforesaid amounts and a summary of the Applicant's total Project investment is attached hereto as Exhibit "A". The foregoing investment includes the construction of off-site improvements such as the Rock Creek Drive extension from Ziegler Road to the Project and the oversizing of streets, sewer lines and water lines to accommodate other development in the area. The Applicant has also completed the construction of Cinquefoil Lane, and Northern Lights Drive, north of Rock Creek Drive. All other on-site streets have been completed. 7. The Applicant has dedicated public rights-of-way in accordance with the Brookfield final plat. The Applicant has installed infrastructure improvements in accordance with the approved utility plans. 8. The Applicant's existing development loans on the Property are based upon the approved final plan and plat and the continued construction of the Project in accordance therewith. The Applicant is at risk of violating the terms of those development construction loans unless the Applicant obtains the vested right to continue the Project to completion. 9. On or about October 13, 2009, the Applicant filed a request for a vested rights determination with the City. On October 29, 2009, the Director of Planning, Development and Transportation determined that the application was complete. The Applicant has requested, through the vested rights determination process, that the Applicant be found to possess a vested right in the overall development plan, the Brookfield final plans, plat and development construction documents to complete the development in accordance with the previously approved plans. 10. In accordance with Section 2.13.10 of the Land Use Code, in order for an applicant to be entitled to a positive vested rights determination, the City Attorney and City Manager must be persuaded by clear and convincing evidence that there has been some authorized act of the City, together with reasonable good faith reliance upon such act by the applicant, which resulted in a substantial change in position or expenditure by the applicant such that it would be highly inequitable or unjust to destroy the rights acquired. In accordance with the criteria established in Section 2.13.10 of the Land Use Code, the City Attorney and City Manager have come to the following conclusions of law. CONCLUSIONS OF LAW 1. Authorized Act of the City. By approving the overall development plan and the final plats and plans for Brookfield Phase I and Phase II, and by approving the utility plans and entering into development agreements for the foregoing developments, the City performed authorized acts upon which the Applicant might reasonably have relied. 2. Reasonable Good Faith Reliance. The Applicant acted reasonably and in good faith by relying upon the authorized acts of the City in moving forward with the construction of certain infrastructure improvements for the Property, both on and off-site and by obtaining the 2 issuance of approximately 148 building permits for houses on the Property and by generally proceeding to develop the property. 3. Substantial Change in Position or Expenditure. By budgeting approximately $9,749,488.00 and investing approximately $8,733,755.00 in the acquisition, design and installation of infrastructure improvements for the Property, by obtaining development financing based upon the full development of the Property, by dedicating rights-of-way and easements for the construction of such infrastructure improvements, and by constructing the extension of Rock Creek Drive from Ziegler Road to the Project, as well as by constructing other oversized streets and infrastructure improvements, some of which are necessary to serve the Property and others of which are necessary to accommodate other developments in the area, the Applicant has made substantial expenditures and substantially changed its position to such an extent that it would be inequitable or unjust to destroy the rights acquired by reason of the City's approval of the overall development plan and the Brookfield Phase I and Phase II final plans. This is so because the infrastructure improvements which have been installed have been sized to accommodate the uses anticipated to occur in the final plan generally, and have been improved in a timely and diligent manner and some 148 building permits have been issued for houses on the Property with some 138 homes having been sold to new residents. Furthermore, the financing and marketing activities that have been carried out by the Applicant demonstrate the Applicant's diligence in pursuing the development of the Property. DETERMINATION The Applicant has reasonably, and in good faith, relied upon authorized acts of the City in making such a substantial change in position or expenditure that it would be highly inequitable and unjust to destroy such rights as may have been acquired by the Applicant in the approval of the overall development plan and the approved final plans for Brookfield Phase I and Phase II. It is hereby determined that it would be equitable under the circumstances to allow the Applicant a period of three (3) years from the date hereof within which to complete the development of the Project in accordance with the previously approved overall development plan, final plans and related development construction documents. CITY OF FORT COLLINS, COLORADO, a Municipal Corporation By V� Darin A. Atteberry, City NYanager By: (Stephe J. koy,tity Atto y 3 ATTEST: FORT COCC�yiP Wanda M. Krajicek, Cit Cl • •O COL��P SOUTH HARMONY, LLC, a Colorado Limited Liability Company t3 y Brett W. Bennett, Manager Approved by City Council by Resolution No.UcR-llt, dated December 2009. IAL Wanda M. Krajicek y lQF O COLOV- 4 EXHIBIT "A" Phase I Phase I Paid to Date $ 3,812,030.12 Phase II Phase II Costs Paid to Date $ 1,450,694.89 Phase III Phase III Paid to Date $ 1,749,572.28 Phase IV Phase IV Costs Paid to Date $ 1,019,304.72 Commercial Phase V Costs Paid to Date $ 702,152.85 CLOSING 12/8/06 $ 8J339754.86 5