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HomeMy WebLinkAboutTHE GROVE AT FORT COLLINS - PDP - 16-10B - CORRESPONDENCE - LEGAL DOCUMENTSPage 3 of 3 process. p.s. Paul, do we need to touch base before you leave for Hawaii? —C From: Paul Eckman Sent: Friday, July 08, 2011 3:01 PM To: Steve Olt; Steve Roy; Carrie Daggett Cc: Ted Shepard; Steve Dush Subject: RE: appeal and filing of final plan Maybe you should hold off until Monday to see whether Steve agrees with you or me. From: Steve Olt Sent: Friday, July 08, 2011 2:55 PM To: Paul Eckman; Steve Roy; Carrie Daggett Cc: Ted Shepard; Steve Dush Subject: RE: appeal and filing of final plan Sensitivity: Confidential One point of clarification, I have not yet told the applicants that we will not accept their FP application until the appeal has been resolved in their favor. I wanted to hear from Paul prior to contacting them. Steve Olt From: Paul Eckman Sent: Friday, July 08, 2011 2:22 PM To: Steve Roy; Carrie Daggett Cc: Steve Olt; Ted Shepard Subject: appeal and filing of final plan Sensitivity: Confidential I heard that the Grove folks are getting ready to file a final plan (FP) even though the PDP is on appeal. I have said that they can do so under 2-48(a) of the City Code which says that any action taken while something is on appeal is totally at the risk of the person taking such action. So, they stand the risk of losing a bunch of money paying architects and engineers to prepare the FP and they lose the filing fee paid to us if the appeal goes sour on them. Steve Olt thinks they cannot file the FP because of LUC sections 2.1.3 (D) (2) and 2.5.2 which essentially say that you can't file a FP until the PDP has been approved by the appropriate "decision maker" being either hearing officer of PZ Board. Steve thinks that now, the appropriate decision maker is the City Council, and they have to wait. I think it is stupid for them to file a FP because it will anger the Council that they are so presumptuous. I doubt that a couple of months will make a big difference in construction timing, but that is just a guess on my part. Even so, I think they have that right. I wouldn't fall on my sword on this though, and if you agree with Steve Olt that is fine with me. Ted Shepard said to me that Olt has already told them that we will not accept their FP application until the appeal has been resolved in their favor, so this issue may come up when I am out, and I wanted you to know about it. 7/11/2011 Page 2 of 3 "A site specific development plan shall be deemed approved upon the expiration of any right of appeal of the approval by the decision maker relating thereto, except that in the event that any such decision of approval has been appealed, the site specific development plan shall be deemed approved as of the date of the City's final action with regard to such appeal." While this is not specifically addressed to the question of submission of the Final Plan, given that the Final Plan can only be submitted after approval of a PDP, I think in the case of a PDP that has been appealed, this suggests pretty clearly that it shouldn't be considered approved until the resolution of the appeal process. Otherwise, the PDP is being treated as approved before the process has run its course, which is clearly not the intent of the LUC in requiring that the PDP be approved first. Are there other LUC provisions that I'm missing that would suggest something different? —C Carrie Mineart Daggett Deputy City Attorney City of Fort Collins P.O. Box 580 Fort Collins, CO 80522 (o) 9701416-2463 (c) 970/219-6426 (f) 970/221-6327 cdaaoett(a fcgov.com CONFIDENTIALITY NOTICE: This email and any attachments contain confidential attorney -client information intended for city use only. Disclosure of the contents of this email to unauthorized persons is prohibited. Do not forward this email or any attachments to persons outside the city organization or to officers or employees of the City whose duties are unrelated to the subject matter of this email. From: Paul Eckman Sent: Friday, July 08, 2011 5:25 PM To: Carrie Daggett Subject: Re: appeal and filing of final plan Sensitivity: Confidential If they paid the fee it seems like we should provide the service they paid for. From: Carrie Daggett To: Paul Eckman; Steve Olt; Steve Roy Cc: Ted Shepard; Steve Dush Sent: Fri Jul 08 15:18:08 2011 Subject: RE: appeal and filing of final plan Hey! I could be the tie -breaker! But, since I'm away from my desk and don't have an LUC handy, I have to ask: is there a requirement that staff process an FP when received, or a clock ticking for completing review once it's accepted? It seems legitimate to me that staff would not want to waste time and resources reviewing the FP pending the completion of the appeal 7/11/2011 Page I of 3 Steve Olt From: Steve Roy Sent: Monday, July 11, 2011 4:39 PM To: Steve Olt; Carrie Daggett Cc: Ted Shepard; Steve Dush Subject: RE: appeal and filing of final plan Sensitivity: Confidential Okay. I'll look at it tonight and we'll get you our view of the issue by tomorrow. From: Steve Olt Sent: Monday, July 11, 2011 4:34 PM To: Steve Roy; Carrie Daggett Cc: Ted Shepard; Steve Dush Subject: RE: appeal and filing of final plan Sensitivity: Confidential Hopefully. I know that Ripley's office is of the belief that their clients really want to submit Final Plans Wednesday of this week. Steve Olt From: Steve Roy Sent: Monday, July 11, 2011 4:30 PM To: Carrie Daggett; Steve Olt Cc: Ted Shepard; Steve Dush Subject: RE: appeal and filing of final plan Sensitivity: Confidential I'd like to join the conversation before we finalize a decision. I should have time to look at it tomorrow or Wednesday. Will that be soon enough? From: Carrie Daggett Sent: Monday, July 11, 2011 3:15 PM To: Steve Olt Cc: Ted Shepard; Steve Dush; Steve Roy Subject: DND: appeal and filing of final plan Sensitivity: Confidential CONFIDENTIAL ATTY-CLIENT COMMUNICATION I did some looking in the LUC now that I have it at my fingertips, and found one additional point that I think should be considered in figuring out what to do with the final plan if it is filed. In looking at the Lapse provision of LUC Section 2.2.11 (D)(l), it is specifically noted there (for the purpose of determining the lapse of a plan) that: 7/11/2011