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HomeMy WebLinkAbout2013-038-05/07/2013-APPROVING THE STIPULATED DETERMINATION OF VESTED RIGHTS BETWEEN THE CITY AND HORSETOOTH DEVELOPMENT, 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 tract of land bounded generally byTurnberry Road,Country Club Road and Maple Hill Drive,which parcel ofpropertyhas 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. Ma r ATTEST: iOE FOR),0 A, ••� SE City Clerk / lt� cO�ORAOO Exhibit A STIPULATED DETERMINATION OF VESTED RIGgHTS This stipulated determination of vested rights is executed this CZ67day of April, 2013, by the City of Fort Collins ("City") and Horsetooth Development, LLC ("Applicant"). FINDINGS OF FACT 1. Applicant is the owner of a tract of land (the "Project") bounded generally by Turnberry Road, Country Club Road and Maple Hill Drive in the City of Fort Collins. The legal description of the Property is as follows: A tract of land known as Maple Hill, being a Replat of the 19th Green Planned Unit Development- Phase 1, located in the Northwest Quarter of Section 32 Township 8 North, Range 68 West of the P.M., City of Fort Collins, County of Larimer, State of Colorado (the "Maple Hill Plat"), including those portions of Maple Hill approved as the Maple Hill Replat, the Maple Hill Second Replat, the Maple Hill Third Replat and the Maple Hill Fourth Replat. Said parcel shall hereafter be referred to as the "Project". 2. The property upon which the Project is located was annexed into the City in 1983. 3. Following annexation into the City, a Final Development Plan was approved for the Project. The Project covers approximately 155 acres and includes a total of 530 dwelling unit lots, 152 of which lots are not fully ready for occupancy due to the lack of infrastructure. The Development Agreement for the Project was approved on August 19, 2003. 4. In accordance with the foregoing approved Final Development Plan, the Applicant continued to pursue the completion of the project as funding was available, and 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. At the heart of the Applicant's difficulties stands Mile High Bank because the loan to the Applicant from Mile High Bank was fully collateralized by the Maple Hill property. Federal regulators prohibited Mile High Bank from making additional loans or advances to the Applicant but, because Mile High Bank has now been purchased and refunded as of December 31, 2012, the bank is now capable of moving forward as a newly capitalized bank and once again is able to fund the Applicant in the development of the Project. 5. The Applicant has expended approximately $12,104,617 in the development of the Project, $367,092 of which was for recent infrastructure improvements to Tumberry Road and $225,000 of which was for street oversizing improvements 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. 6. The Applicant estimates that the "hard cost' to complete the remaining infrastructure improvements for the 152 lots which are partially completed and are the subject of this application is $1,828,500, which constitutes approximately 15% of the total cost expended on the Project. The Applicant has provided a tabulation of all costs, both expended and to be spent, which tabulation is attached hereto as Exhibit "A." 7. On or about March 25, 2013, the Applicant completed the filing of a request for a vested rights determination with the City. On March 26, 2013, 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 Project and its related plan, plat and development construction documents to complete the Project in accordance with the previously approved plans. 8. 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, accepting dedication of land for park purposes, and accepting funds from the Applicant for improving Turnberry.Road in an amount in excess of$367,000, 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 $12,104,617.00 in the design and installation of infrastructure improvements for the Project, by dedicating park land, and 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 acquired by reason of the City's approval of the Final Development Plan. 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,tCOLORADO, a a Municipal Corporation By:Y LF.. "•, Dan A. Atteberriy, City-M ager Bv: ephe . key, 6ty Attorne ATTEST: City Clerk HORSETOOTH DEVELOPMENT, LLC, a Colorado limited liability company By: Estate Development Corporation, a Colorado corporation, its Manager_ 711 By: Miles R R. Grant, Manager Approved by City Council by Resolution No. dated 2013. City Clerk 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 OHsite oversizing $225,000 County road 11 $367,092 Other $88,353 TOTAL $680,445 Management Consulting $234,312 $65,600 Engineering Construction Services $100,378 $20,000 Surveying $81,900 $29,300 Geotechnical Services 542,959 $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 599,380 $77,986 Storm Sewer $369,211 $237,989 Concrete $416,612 $409,323 Paving $564,454 $508,037 Reimbursement -$32,152 -$104,532 Slgnage $20,344 $21,678 Dry Utilities $306,559 $309,600 OVERHEAD Legal 585,265 515,000 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 Constructlon Costs $1,828,500 Remaining Soft Costs $1,069,925 PROJECT TOTAL $12,104,617 $2,898,425