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
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City Clerk / lt�
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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