HomeMy WebLinkAbout2012-042-06/05/2012-OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS B RESOLUTION 2012-042
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROVING THE STIPULATED DETERMINATION OF
VESTED RIGHTS BETWEEN THE CITY
AND DRY CREEK, 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, Dry Creek, LLC is the owner of a tract of land located at the western terminus
of International Boulevard in the City,which parcel of property has obtained City approval of a Final
Plan for Dry Creek Subdivision, First Replat, Phases Two and Three (the"Final Plan"); and
WHEREAS,Dry Creek,LLC has,in reliance upon the approval by the City of the Final Plan,
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 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 Dry Creek,LLC,
dated May 30, 2012, 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 5th
day of June A.D. 2012.
Mayor
OF FORT"
ATTEST: \-l;•• °•..����
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: SEAL 'N
ty. lerk /Z,
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EXHIBIT A
STIPULATED DETERMINATION OF VESTED RIGHTS
This stipulated determination of vested rights is executed this 3a day of May, 2012, by
the City of Fort Collins ("City") and Dry Creek, LLC ("Applicant").
FINDINGS OF FACT
1. Applicant is the owner of a tract of land (the "Project") located at the western
terminus of International Blvd. in the City of Fort Collins. The legal description of the Property
is as follows:
Dry Creek Subdivision, First Replat, Phases Two and Three in the City of Fort Collins,
being a tract of land located in Section 7, Township 7 North,.Range 68 West of the 6th
P.M., County of Larimer, State of Colorado.
Said parcel shall hereafter be referred to as the "Project".
2. The Project was annexed into the City in 1995.
3. Following annexation of the Project into the City, a Final Development Plan was
approved for the Project. The Project covers approximately 22.38 acres and includes a total of
137 dwelling unit lots, which lots are not fully ready for occupancy due to the lack of sidewalk
improvements. (Phase One of the Dry Creek Subdivision is complete, partially occupied and
fully vested under Colorado statutory law and not part of the Project as defined herein.) The
Final Development Plan for the Project was approved on November 1, 2007.
4. In accordance with the foregoing approved Final Development Plan, the
Applicant proceeded to construct to completion Phase One and partially completed.construction
of the entire Project (Phases Two and Three). Although Phase One is fully vested, the lack of
public sidewalks in Phases Two and Three result in those Phases not be-considered vested. A
one-year extension was granted for the Project by the Community Development Director which
extended the Project to November 1, 2011. However, a second administrative extension was
requested on September 9, 2011, but denied by the Community Development Director because
the Project failed to comply with Section 4.5(D)(2) "Mix of Housing Types" of the Land Use
Code because of an intervening amendment to that Section of the Land Use Code by Ordinance
No. 36, 2011, which was adopted by the City Council on March 15, 2011. This change in
Section 4.5(D) of the Land Use Code resulted in a substantial impediment to the Developer's
ability to continue in compliance and the Project expired on November 2, 2011 in accordance
with Section 2.2.11(D)(4) of the Land Use Code. The public sidewalks remain to be constructed
in the Project.
5. The Applicant has expended $701,482.00 for the construction of Phase Two and
$452,974.00 for the construction of Phase Three thus far and the Applicant estimates that an
additional $660,050.00 will be necessary to complete Phase Two and $557,538.00 will be
necessary to complete Phase Three (See Exhibit "A" attached). The Applicant has also
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dedicated, at the request of the City, three rights-of-way in the Project in order to provide future
connectivity to properties located to the west and east of the Project.
7. All basic infrastructure within the Project, including curb, gutters, roads, water
mains, sewer mains, fire hydrants, five individual mini-parks, irrigation line taps and 146 water
meter pits have been installed and completed. Costs associated with the installation of these
improvements is in the sum of$1,154,456.00. Current stormwater drainage and planning for the
Project has been designed, engineered and constructed based upon the November, 2007,
approved Final Development Plan..
8. On or about May 2, 2012, the Applicant completed the filing of a request for a
vested rights determination with the City. On May 2, 2012, the Director of Community
Development and Neighborhood Services 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 Dry Creek Final Development Plan, plat and development
construction documents to complete the Project in accordance with the previously approved
plans.
9. 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 Final Development Plan for the
Project, and by approving the utility plans and entering into a development agreement for the
foregoing development, 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 Project, and by generally proceeding to development
the Project.
3.- Substantial Change in Position or Expenditure. By investing approximately
$1,154,456.00 in the design and installation of infrastructure improvements for the Project, by
dedicating rights-of-way and easements for the construction of such infrastructure
improvements, and by constructing other street and infrastructure improvements, some of which
are necessary to serve the Project 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
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acquired by reason of the City's approval of the Final Development Plan. This is particularly so
because the approved plan for the Project could not be extended by the Director of Community
Services as anticipated by the Applicant because of the intervening operation of Ordinance No.
36, 2011, which took the approved project plan out of compliance with Section 4.5(D)(2) of the
Land Use Code with respect to the mix of housing types. This intervening action by the City
further supports the justification of the granting of this vested rights determination.
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 Final Development Plan for the Project. It is hereby determined that it would be equitable
under the circumstances to allow the Applicant an additional 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.
CITY OF FORT COLLINS, COLORADO,
a Municipal Corporar
By:
Dari tteberry, C1t a ager
�pLL{PU3 By;
¢�, • lsrtepheVi. Roy, ty Attorney
ATTE 4
O: �0
C' y C rk �c�.•. ,•q�
.,
DRY CREEK, LLC, a Colorado Limited
Liability Company
By:
Roger Zlotoff Manager
tV-pro Eby City Council by Resolution No. �(Z—O(?dated June, 2012.
Ci Cle
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acquired by reason of the City's approval of the Final Development Plan. This is particularly so
because the approved plan for the Project could not be extended by the Director of Community
Services as anticipated by the Applicant because of the intervening operation of Ordinance No.
36, 2011, which took the approved project plan out of compliance with Section 4,5(D)(2) of the
Land Use Code with respect to the mix of housing types. This intervening action by the City
further supports the justification of the granting of this vested rights detennination,
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 Final Development Plan for the Project, It is hereby determined that it would be equitable
under the circumstances to allow the Applicant an additional 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.
CITY OF FORT COLLINS, COLORADO,
a Municipal Corpora 'on. I
By:�
Dar' tteberry, Cr ager
By: //
ephe . Roy:'dif Attorney
ATTEST:
City Clerk
DRY CREEK, LLC, a Col o Lirm
Liability Co y
By:
Roger Zlotof Manage
Approved by City Council by Resolution No. dated June 2012.
City Clerk
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EXHIBIT "A"
Dry Creek Subdivision
Completed Phase One Construction Costs
Engineering Fees $123,089.00
Permits, Fees $10,321.00
Fort Collins Light and Power $113,185.00
Xcel Energy $33,063.00
Comcast $15,064.00
GLH Construction $604,578.00
Split Rail Fence $25,432.00
Alpine Gardens Landscaping $93,492.00
Mail Boxes $5,420.00
ELCO Water $64,985.00
Legal Fees $8,933.00
Increased Property Taxes Due to Replat, 2008 thru 2011 $498,000.00
Fort Collins Police Services, Additional Patrols $13,428.00
TOTAL PHASE ONE $1,608,990.00
Completed Phase Two Construction Costs
Roads, water, sewer, irrigation, utilities, mini parks $701,482.00
Completed Phase Three Construction Costs
Roads, water, sewer, irrigation, utilities, mini parks $452,974.00
Total construction costs for all Phases to date $2,763,446.00
Estimate to Complete Phases Two and Three
Cost allocation to complete Phase Two $660,050.00
Cost allocation to complete Phase Three $557,538.00
Total costs to complete $1,217,588.60
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