HomeMy WebLinkAboutTHE GROVE AT FORT COLLINS - FDP - FDP110015 - LEGAL DOCS - LEGAL DOCUMENTSNorth 38°00'23" West, 41.52 feet; thence, North 49°29'33" West, 33.86 feet; thence, North
76°42'38" West, 67.45 feet; thence, South 87°16'35" West, 104.27 feet; thence, North 74°48'07"
West, 72.23 feet; thence, North 86°57'04" West, 79.88 feet; thence, South 76°32'31" West, 54.11
feet; thence, South 61°32'02" West, 52.89 feet; thence, South 76°32'00" West, 39.82 feet; thence,
South 70'39'15" West, 57.13 feet; thence, South 65°50'46" West, 131.84 feet; thence, South
57°04'01" West, 72.37 feet; thence, South 87°21'57" West, 100.49 feet; thence, South 78°28'27"
West, 102.14 feet; thence, South 70°58'30" West, 36.47 feet; thence, North 88°49'19" West,
101.48 feet to a point on the East line of Care Housing at Windtrail Park P.U.D.; thence along
said East line, North 00'01'07" West, 528.60 feet to a point on the North line of the Southwest
Quarter of said Section 23; thence along said North line, South 89°20'42" East, 566.07 feet to the
Point of Beginning.
Containing 1,364,435 square feet or 31.323 acres, more or less (f).
Legal Description of the Property
A tract of land located in Section 23, Township 7 North, Range 69 West of the 6th P.M., City of
Fort Collins, County of Latimer, State of Colorado being more particularly described as follows:
Considering the North line of the Southwest Quarter of said Section 23 as bearing North
89020'42"West and with all bearings contained herein relative thereto:
COMMENCING at the Center Quarter Comer of said Section 23; thence, along the North line
of said Southwest Quarter, North 89°20'42" West, 1280.51 feet to the Point of Beginning, said
point being the Southwest comer of Tract C, Windtrail Townhomes P.U.D., First Replat; thence
along the Westerly and Northerly lines of said Tract C the following 14 courses and distances:
North 00039118" East, 124.64 feet; thence, North 68°03'02" East, 303.59 feet; thence, North
61°39'52" East, 44.70 feet; thence, South 89020'42" East, 106.76 feet; thence, North 00139'18"
East, 54.00 feet; thence, North 08°11'33" East, 260.74 feet; thence, North 85°47'10" East, 48.62
feet; thence, South 84°13'16" East, 75.34 feet; thence, South 80°49'13" East, 169.49 feet; thence,
South 86°03'27" East, 54.00 feet; thence, South 89°40'57" East, 39.98 feet; thence, North
83°42'36" East, 114.68 feet; thence, North 82°12'31" East, 74.98 feet; thence, South 89°40'57"
East, 243.28 feet to a point on the East line of the Northwest Quarter of said Section 23; thence
along said East line and the West line of Centre for Advanced Technology 22nd Filing, South
00'15'48" West, 48.20 feet; thence continuing along said West line of said 22nd Filing, South
30°15'10" West, 142.24 feet to the Northwest corner of Right -of -Way Dedication recorded at
Reception No. 2003-0039527; thence along the Westerly and Southerly lines of said Reception
No. 2003-0039527 the following 7 courses and distances: South 04°43'28" West, 66.00 feet;
thence along a non -tangent curve concave to the Southwest having a central angle of 16°50'28"
with a radius of 518.00 feet, an arc length of 152.26 feet and the chord of which bears South
76°51'18" East, 151.71 feet; thence along a curve concave to the Southwest having a central
angle of 16°44'18" with a radius of 400.00 feet, and are length of 116.86 feet and the chord of
which bears South 60°03'54" East, 116.44 feet; thence, South 51 °41'44" East, 33.99 feet; thence
along a curve concave to the Southwest having a central angle of 4°31'08" with a radius of
513.00 feet, and arc length of 40.46 feet and the chord of which bears South 49°26'10" East,
40.45 feet; thence, South 47'10'35" East, 62.94 feet; thence along a curve concave to the West
having a central angle of 89°59'52" with a radius of 5.00 feet, and arc length of 7.85 feet and the
chord of which bears South 02° 10'39" East, 7.07 feet to the North right-of-way line of Centre
Avenue (Rec. No. 2000043056); thence along said North right-of-way line the following 2
courses and distances: South 42'49'17" West, 549.94 feet; thence along a curve concave to the
Southeast having a central angle of 22057'27" with a radius of 644.00 feet, and arc length of
258.04 feet and the chord of which bears South 31 °20'35" West, 256.32 feet; thence, North
70108'10" West, 200.97 feet; thence, North 72°18'05" West, 81.16 feet; thence, North 55°59'37"
West, 31.08 feet; thence, North 88'01'35" West, 64.24 feet; thence, South 85°05'16" West, 76.05
feet; thence, South 56°13'17" West, 88.75 feet; thence, North 58°27'48" West, 36.77 feet; thence,
Ted Shepard
November 16, 2011
Page 5
Section 1.4.9(A). The Land Use Code provision which requires the preservation of natural
features to the maximum extent feasible clearly imposes the greater restriction, in that it requires
the developer to take all feasible steps to protect and preserve the wildlife on -site. This will
require Campus Crest to individually plug and backfill each fox hole with natural materials that
will prevent the fox from re -excavating.
8. Relocating the fox to off -site locations furthers the following purposes of the
Land Use Code found in Section 1.2.2:
(C) fostering the safe, efficient and economic use of the land, .. .
(I) minimizing the adverse environmental impacts of development.
(N) ensuring that development proposals are sensitive to natural areas and features.
Therefore, on behalf of Campus Crest, we request a modification of Administrative
Interpretation #1-10 that the filling of the fox holes on the Property in advance of FDP approval,
for the purpose of protecting the fox and providing them the greatest opportunity to relocate to
safe, off -site dens, balances the competing objectives of the Land Use Code and better meets the
goals of wildlife preservation in Land Use Code Section 3.4.1 and aids in the fulfillment of the
purpose of the Land Use Code as stated in Sections 1.2.2(C), (1) and (N).
Thank you for your consideration.
Sincerely,
LILEY, ROGERS & MARTELL, LLC
By.
ucia A. Liley
LAL/jpk
Pc: Robbie Robinson, Campus Crest at Fort Collins, LLC
Linda Ripley, Ripley Design Inc.
Karen Cumbo, Director, Planning, Development and Transportation
Steve Olt, Planner
Paul Eckman, Deputy City Attorney
Ted Shepard
November 16, 2011
Page 4
1. There is an approved PDP for The Grove that includes Fox Den Mitigation Notes
that outline an agreed -upon procedure consistent with the recommendations of the City's
Environmental Planner, CDOW and Campus Crest's consultant. The pending FDP, which also
includes the Fox Den Mitigation Notes, is in the final stages of revision and review; no
impediments to approval have been identified. Fox Den Mitigation Note #2 specifically
authorizes the plugging of the unoccupied dens after FDP approval.
2. FDP approval might be obtained by late December, under the best of
circumstances, however, there is still the risk of inclement weather or other unknown
circumstances that might result in the occupation of the dens before that time. Every day's delay
increases this risk.
3. The experts agree that it would be best to implement Fox Den Mitigation Note #2
as soon as possible — while the dens are still unoccupied - instead of waiting for FDP approval.
Alternative methods of discouraging the use of the burrows (e.g. filling the holes with moth balls
or ammonia soaked rags, placing predator scents around the holes or covering the holes with
wire mesh) are less dependable and are not recommended.
4. Filling the dens right away would allow the fox sufficient time to relocate prior to
the birthing season and prevent them from selecting dens on -site where, despite the buffers
required by Fox Den Mitigation Note #3, they would be subject to significant disturbance and
danger.
5. Relocating the fox to off -site locations is consistent with the purpose of the Land
Use Code Section 3.4.1 to protect the special features on the site. See Sec. 3.4.l(B).
6. Relocating the fox to off -site locations complies with the general standard of
Section 3.4.1(D) requiring the protection of natural habitats and features by "(4) restoring or
replacing the resource value lost to the community (either on -site or off -site) when a
development proposal will result in the disturbance of natural habitats or features." To the extent
that fox are considered a valuable resource to the community, such resource will not be lost
(unlike a tree that is permanently lost if cut down) by the disturbance of the site, because the fox
will simply relocate to other areas of the City. Fox are quite populous in this urban environment
and are known to adapt well to change. If any fox that traditionally chooses this site for birthing
their kits is unable to do so, it will simply find another location in another City space, like along
the Spring Creek Trail or in Rolland Moore Park.
7. The potential conflict between the prohibition of the filling the fox holes before
FDP approval because it is considered the "act of developing" according to the Interpretation,
and the need to fill the fox holes as soon as possible in order to protect them as required by
Sections 3.4.1(B) and (D), should be resolved by applying the more stringent provision per
Ted Shepard
November 16, 2011
Page 3
work must be coordinated with irrigation activities, meaning that the excavation of the realigned
ditch channel and the movement of the fill to The Grove site, must be completed by March 31s`
when the irrigation season begins. Unfortunately, the window of opportunity for doing the ditch
realignment work is at the exactly the same time that the fox will be birthing and rearing their
kits if they are not relocated off -site.
Impact of Interpretation.
1. Since fox generally select a den for bearing kits in December or early January,
there would be only a handful of days, in the most optimistic scenario, between FDP approval
and den selection in which Campus Crest could attempt to prevent occupation of the dens. In the
event of periods of severe weather prior to FDP approval, fox may seek shelter in the dens
earlier, eliminating any possibility of encouraging them to relocate to off -site dens.
2. Should any of the fox burrows be occupied at the time of FDP approval, each
occupied den will be protected by a 50-foot radius buffer zone delineated by construction
fencing, or the like, per the Fox Den Mitigation Notes. Because the dens are located throughout
the entire development site and, further, because the dens are often connected to each other
below the ground surface, the above ground buffers are not likely to protect all areas of fox use.
In addition, the constant presence of construction workers and loud, heavy machinery and
vibration will be a disturbance to the fox; such an atmosphere is not conducive to the birthing
and rearing of kits. Furthermore, the safety and very lives of the fox may be endangered when
they must leave the den to hunt for food.
3.- Fox will be left with less of an opportunity to locate to an off -site den, and will
encounter more competition for those locations.
4. Campus Crest may be forced to stockpile fill for movement to the appropriate
areas of the site after the fox relocate in the spring. Moving the dirt twice results in an increased
environmental impact to both the adjoining neighborhood and the natural habitat due to re -
mobilization, emissions, dust, erosion, noise, etc. In addition, moving the approximately 25,000
cubic yards of fill twice potentially doubles the cost to Campus Crest.
Request for Modification of Interpretation.
Campus Crest asserts that it is critical, not only for the safety of the fox, but for the timely
completion of the ditch realignment as desired by the Planning and Zoning Board and the City
Council, that the Interpretation be modified to allow the fox dens be filled as soon as possible to
prevent them from becoming active natal dens. In support of its request, please consider the
following:
Ted Shepard
November 16, 2011
Page 2
Changed Circumstances
A number of significant developments have occurred since December, 2010 which justify
your consideration of a modification of the Interpretation.
1. Approved PDP with Fox Den Mitigation Notes. On June 16, 2011, Campus Crest
obtained unanimous Planning and Zoning Board approval of a revised version of The Grove at
Fort Collins PDP ("The Grove"), and such approval subsequently was upheld on appeal by the
City Council on August 23, 2011. The Grove PDP includes Fox Den Mitigation Notes that were
approved by City staff and subsequently approved by the Planning and Zoning Board and the
City Council, that outline steps for dealing with occupied and unoccupied fox dens on -site. The
notes reflect the general consensus of T. Michael Phelan, Senior Wildlife Biologist for Cedar
Creek Associates, Inc., Campus Crest's consultant, the Colorado Division of Wildlife and the
City's Environmental Planner, Lindsay Ex, that the filling of burrows in urban areas with natural
materials that will prevent the fox from re -excavating is the most effective method of preventing
their use as natal dens, and is the safest for the fox since they will simply select burrows
elsewhere.
2. Pending FDP Approval. Final development plans ("FDP") for The Grove have now
also been submitted to the City and the first round of review has been completed, with City staff
citing no major issues. Resubmittal of the FDP is currently scheduled for November 16, 2011.
Thereafter, final staff comments are expected on approximately December 7, 2011 with final
FDP approval, execution of the Development Agreement and issuance of the Development
Construction Permit to follow thereafter. In the most optimistic scenario, FDP approval could be
obtained in late December.
3. Ditch Realignment/Project Construction Schedule. Another significant change in
circumstances since December, 2010, is the execution of a Ditch Realignment Agreement among
Campus Crest, the Colorado State University Research Foundation ("CSURF"), and The Larimer
Canal No. 2 Irrigating Company ("Ditch Company"), which provides for the relocation of a
portion of the existing Larimer No. 2 Canal from its current location adjacent to The Grove to a
location approximately 50 feet to the south for the purpose of mitigating potential seepage issues,
preserving a number of mature trees, and widening the natural buffer between The Grove and the
canal for potential wildlife use. Also of note is that the Planning and Zoning Board made it a
condition of its approval that the ditch realignment be completed prior to the issuance of a final
certificate of occupancy in The Grove. The timing of the ditch realignment work is crucial to the
overall construction schedule for The Grove. In accordance with the definition of
"development" in the Land Use Code, the fill dirt excavated from the realigned ditch channel
cannot be placed on The Grove site, where it will ultimately be used to effect the grading plan,
until after FDP approval and issuance of the Development Construction Permit (the "DCP"), the
earliest of which will be in late December. Also, according to the Ditch Agreement, all ditch
• LILEY, ROGERS & MARTELL, LLC 11
ATTORNEYS AT LAW
November 16, 2011
Mr. Ted Shepa
Chief Planne
City of Fo Collins
281 N. C ege Ave.
Fort Co ns, CO 80521
Re: Request for Modification of Administrative Interpretation #1-10
issued December 17, 2010
Dear Ted:
This firm represents Campus Crest at Fort Collins, LLC ("Campus Crest"), the long-term
lessee of a portion of the vacant property owned by the Colorado State University Research
Foundation ("CSURF"), which is assigned Parcel No. 97230-00-904. The portion of the
property leased by Campus Crest which is the subject of this Request for Interpretation is
approximately 31 acres in size, and the legal description is attached hereto ("Property").
Administrative Interpretation #1-10
On December 16, 2010, during the City's review of Campus Crest's first application for
preliminary development plan ("PDP") approval of a student housing project on the Property, we
sought a formal interpretation that the filling of the fox burrows and abandoned fox holes on the
Property in order to prevent their occupation for breeding and potential conflicts with
construction activities, would not be considered "development" and, therefore, could be done
prior to final plan approval.
On December 17, 2010, Administrative Interpretation #1-10 (the "Interpretation") was
issued: based on the status of the development review process for the project and applicable
provisions of the Land Use Code, the Administrative Interpretation stated, "... in the case of The
Grove and as to the question of what constitutes "Development, " the filling of fox burrows and
abandoned holes is hereby considered to be the "act of developing" and shall not commence until
approval of final plans." It was significant in the City staff s consideration of the request and its
decision as stated in the Interpretation that, although there was a general consensus among City
staff that removal of the fox burrows was likely the recommended course of action, there had not
yet been any Planning and Zoning Board sanction of such action as a component of an approved
plan. Based on the Interpretation, Campus Crest abandoned all plans to fill the fox holes.
LUCIA A. LILEY o JAMES A. MARTELL ® TODD W. ROGERS ® JOSHUA C. LILEY
THE PETER ANDERSON HOUSE 0 300 SOUTH HOWES STREET ® FORT COLLINS, COLORADO 80521
TELEPHONE: (970) 221-4455 ® FAX: (970) 221-4242