HomeMy WebLinkAboutTHE FARMSTEAD - FDP - 8-03 - CORRESPONDENCE - LEGAL DOCUMENTS (3)Although the City of Fort Collins has traditionally required developing properties (as part of the
development approval process) to repay the local street portion of costs of improvements
adjacent to such developing properties, we argue that in this case, because the $53,404 repay for
the Taft Hill bridge exceeds a proportional nexus, the repay constitutes a taking.
The $53k fee imposed to pay "our share" of the bridge cost is simply not "roughly proportional" to
the impacts caused by the development of this property. The City already has made the
improvement, and the simple fact that this property is next to the new bridge doesn't create any
more impact on the bridge than any other non-contiguous development in the vicinity would. The
current traffic across the new Taft Hill bridge is 6,500 northbound tripstday & 4,200 southbound
trips/day (according to Traffic Operations September 2003 counts). Our traffic study for the
project states that an additional 78 trips/day would be added to the bridge traffic as a result of the
Farmstead development. Our impact adds approximately 0.72897 % to the usage of the bridge,
and therefore, this project should only be charged a fee based on this proportionality. The City is
clearly exceeding the "rough proportionality" test as established in Dolan v. City of Tigard, and
therefore this repay constitutes a taking.
Section 24-95 of the FC City Code states that the City "may" require a repay for the local street
portion of costs of improvements adjacent to developing properties. We suggest that in the case
of the Farmstead Subdivision, the City should take advantage of the fact that the standard says
"may", rather than "shall," and avoid violating the 5th Amendment of the United States
Constitution. We would be happy to pay our roughly proportional share of the cost of the
adjacent improvements, which would either be to pay the newly adjusted street oversizing fee, or
to pay the old street oversizing fee plus an additional 0.72897 % of the total bridge construction
cost for the project's proportional impact to the bridge.
Our attorney has advised us to exhaust all administrative possibilities to resolve this issue before
we formally apply to the City of Fort Collins for a Takings Determination. We are confident that
we would be successful in a Takings Determination, however it would be very time consuming for
us and unnecessarily take up a lot of City staffs time and energy. We encourage you to follow
the legal precedence set by Dolan v. City of Tigard without having to be forced to do so through
the formal Takings Determination process.
Sincerely, /
C
Mikal Torgerson, Architect
M. Torgerson Architects
CC: Darin Atteberry, Steve Roy, Paul Eckman, Ron Phillips, Gary Diede, Gregory Byrne, Eric
Bracke, Cameron Gloss, Steve Olt, Mike Herzig, Matt Baker, Sheri Wamhoff, Marc Virata, Troy
Jones, Lucia Liley
Cam McNair
Fort Collins Engineering Department
281 North College Ave.
Fort Collins. CO 80524
January 6, 2005
Dear Mr. McNair,
This letter is in reference to the "repay" that is listed on page 8 of the draft
Development Agreement, section II.D.3 for the Farmstead Subdivision. The draft
language states: "The Developer agrees to reimburse the City the sum of
$76, 544.40, plus a percentage added to recognize the effects of inflation, for the
cost to construct Laporte Avenue and the bridge on Taft Hill Road ($23,140.00 for
Laporte Avenue and $53, 404.40 for the bridge on Taft Hill Road) adjacent to the
Property." In talking with Matt Baker verbally on 1/5/05, he indicated that the $23K
specified for Laporte Avenue is an escrow for sidewalk and landscape
improvements. We are happy to escrow for this although it seems high for these
improvements. I am very concerned, however, that the $53,404.40 that is
supposed to be for "our share" of the bridge is completely unreasonable for two
fundamental reasons.
First, imposing this fee would be charging us twice for the same improvement. You
already acknowledged that it's not fair to impose a fee such as this when, in your e-
mail to Troy Jones on 12/30/04, you stated "Two years ago, in recognition of the
extra burden placed on developing properties that are adjacent to bridges and
similar structures, we adjusted (increased) the Street Oversizing fees to spread the
total cost (including the local street portions) of bridges and box culverts among all
fee payers." I'd like to point out that no building permits have been pulled yet for
this project, therefore, the street oversizing fees for this project have yet to be paid.
When the street oversizing fees for this project are collected in the future assuming
they will be based on this said new adjusted fee, we will be already paying our
share for this bridge. Charging us the new increased Street Oversizing fee and
charging us the repay for the bridge would be charging us twice for the same
improvement.
Second, considering "our share" of the cost of the bridge to be $53,404.40.. greatly
exceeds our impact to the bridge, and therefore constitutes a taking. Whenever
local jurisdictions impose conditions on land use permits, they must be aware of
constitutional limits, particularly the "nexus" and "proportionality" requirements of
the Fifth Amendment's takings clause. According to the U.S. Supreme Court, while
local governments can place conditions on land use permits, the Constitution
requires a "nexus" between the permit conditions and a legitimate regulatory
interest. A "nexus" exists where the permit conditions are connected to and further
the regulatory interest. Even if there is a "nexus" between the conditions and the
regulatory interest, the Constitution also requires that the permit conditions be
"roughly proportional" to the projected impacts of the land use development. The
"nexus" requirement was established in Nollan v. California Coastal Commission,
483 U.S. 825 (1987). In Nollan, the United States Supreme Court held that permit
conditions must be sufficiently related to the government's regulatory interests. The
Court added the "proportionality" requirement in Dolan v. City of Tigard, 512 U.S.
374 (1994). In Dolan, the Court held that when governments impose permit
conditions, there must be "rough proportionality" between the condition's
requirements and the impacts of the development.
Mal S. iorgernon, AIA, KABB
223 N College
forf Collins, CO 80524
970.4161431
888.4161431
Fax: 970.416.7435
Email: mikal®archilex.mm
hNp: //www.archilex.mm