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HomeMy WebLinkAboutREA ANNEXATION AND ZONING - 64 93C - LEGAL DOCS - CITY HALL6. The parties agree that this Agreement shall be specifically enforceable by a court of competent jurisdiction. In the event of a breach of any provision of this Agreement, the nonbreaching party may ask a court of .competent jurisdiction to enter a writ of mandamus, temporary or permanent restraining orders, temporary or permanent injunctions, or orders of specific performance to compel the breaching party to perform its duties under this Agreement and to grant such other relief as may be accorded by law, it being the intent of this provision to supplement the general or common law of remedies. 7. The parties agree to sign any further documents reasonably required by the Owner or the City to carry out the terms of this Agreement. 8. This Agreement and any amendments to this Agreement shall be recorded with the Larimer County Clerk and Recorder and shall be binding upon and inure to the benefit of the transferees, successors, and assigns of the Owner. Upon conveyance of all or any portion of the Property by the Owner, the successor in interest shall be substituted for the Owner under this Agreement; and the former Owner shall be released from all duties and liability under this Agreement. 9. This Agreement shall be null and void if the City fails to approve the annexation of the Property on.or before January 15, -1997 .-This-Agreement-shall-constitute-a covenant -running with -the title to the Property. 10. This Agreement represents the entire Agreement between the parties. Any amendments to this Agreement to be effective shall be in writing. IN WITNESS WHEREOF, the parties hereto have executed this Annexation Agreement the day and year first written above. CITY OF FORT COLLINS, COLORADO By: Mayor ATTEST: City Clerk POUDRE VALLEY -RURAL ELECTRIC ASSOCIAJkONr INC. By: C:\OFFICE\PVREA\ANNE%F•rC.ASC Its: September 18, 1996 3 7 2. If the annexation of the Property, or any portion thereof, is challenged by any proceeding or action (including a referendum), all provisions of this Agreement, together with the duties and obligations of each party, including payment of all taxes, fees and charges of any kind or nature, directly or indirectly imposed by the City and enforcement of all City ordinances on the Property shall be suspended, immediately upon filing of the referendum, pending the outcome of the referendum election. If the challenge results in disconnection of all or any portion of the Property from the City, then this Agreement and all provisions contained herein shall be null and void ab initio and have no further effect. If the challenge fails, then Owner and the City shall continue to be bound by all the terms and conditions of this Agreement. The period -of suspension of this Agreement shall end on the date the annexation ordinance is no longer subject to further legal challenge. Upon such disconnection, the City shall have no further obligations or responsibilities as to such disconnected property, and the Owner shall have no further obligation to the City. 3. The Property is currently served for water and sanitary sewer improvements through the Fort Collins/Loveland Water District and the South Fort Collins Sanitation District, and it shall not be necessary for the City to serve the Property. The Property is served by the Owner for electric service, and the duty and obligation..:.for.,,electric. service shall.. remain -with: the _Owner -until the Property is sold by the Owner to a third party, at which time the Agreement between the City and the Owner regarding provision', for electric service shall become effective. The Owner has storm drainage improvements in place that provide effective drainage for the Property; and no further storm drainage improvements on other property shall be required. The City will accept ownership of any storm drainage facilities on the Property. The Property has certain raw water rights that the City agrees the Owner may continue to be used for irrigation of the Property. If the Owner desires to transfer such raw water rights to the City in exchange for any requirement for contribution of raw water rights of the City, the City agrees to accept such rights, and then allow the Owner to use such rights for irrigation. No off site improvements shall be required by the City for development of the Property since all such improvements are in place. 4. In the event any ordinance becomes effective in the City within twenty years after the effective date of the annexation ordinance, and such ordinance alters and limits any Owner's right to use the Property as contemplated by this Agreement, then the City, upon the written request of Owner, will proceed to take all necessary action. to immediately disconnect of the Property from the City's boundaries, and the Property may not be annexed subsequently except by voluntary petition by the Owner. 5. Except as set forth in this Agreement, the Property shall be subject to the police power and legislative authority of the City, after final annexation of the Property. CA ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT is made and entered into this 18th day of September 1996,. between the CITY OF FORT COLLINS.. COLORADO, a Colorado municipal corporation, hereinafter referred to as the "City" and POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC., a Colorado corporation, hereinafter referred to as the "Owner." RECITALS: The following recitals are a material part of this Annexation Agreement (the "Agreement"). A. Owner is the owner of property more fully described on Exhibit A attached hereto and incorporated herein by reference (the "Property"). B. Owner has determined that it is desirable for the future development of the Property to annex the Property into the City and has, contemporaneously with the effectiveness of this Agreement, filed a Petition to annex the Property (the "Petition") to the City; and the Petition is on file with the City Clerk. C. The City desires to approve and accept the Petition for Annexation and to annex the Property to_.the .City. _. D. The Owner and the City desire to establish conditions with regard to the.use of the Property and to provide for zoning of the Property and certain requirements for the subsequent development of the Property. E. The Owner and the City desire to establish conditions with regard to this annexation and the use of the Property and to provide for the zoning of the Property in accordance with Colorado law, and to establish certain requirements for the subsequent development of the Property. NOW, THEREFORE, the parties agree as follows: 1. The Owner has, contemporaneously with the effectiveness of this Agreement, petitioned for annexation of the Property to the City upon the expectation and agreement of the City that the City will zone the Property in the City's C-L zone without a PUD condition. Pursuant to §31-12-115, C.R.S., the Property shall be zoned within thirty days of the effective date of the annexation ordinance as provided in the Agreement. If zoning in the City's C- L zoning classification is not finally approved by appropriate ordinance within thirty days after the date that the annexation ordinance and is no longer subject to further legal challenge, the City will upon the request of any Owner proceed to enact an ordinance disconnecting the Property from the City. Upon such disconnection, the City shall have no further obligations or responsibilities as to the Property; and the Owner shall have no further obligations or responsibilities to the City. t ATTACHMENT "A" LEGAL DESCRIPTION OF THE ANNEXATION A tract of land situate in the County of Larimer, State of Colorado to -wit: A tract of land situate in the Northeast Quarter of Section 2, Township 6 North, Range 69 West of the 6th P.M., Larimer County, Colorado, which considering the East line of the Northeast Quarter of said Section 2 as bearing S 000 37' 58" W and with all bearings contained herein relative thereto, is contained within the boundary lines which begin at the Northeast corner of said Section 2 and run thence S 001 37' 58" W 995.83 feet, and again N 891 01' 01" W 49.51 feet to.the true point of beginning; thence S 00° 35' 38" W 450.00 feet; thence N 890 01' 02" W 909.52 feet; thence N 000 43' 58" E 450.00 feet; thence S 890 01' 01 " E 908.43 feet to the point of beginning. Containing 9.3901 acres more or less. -5- ATTORNEY CERTIFICATION 1, RANDOLPH W. STARR an attorney licensed to practice in the State of Colorado, hereby certify that I have examined the records of the Clerk and Recorder of Larimer County, Colorado, and have verified that the signers of the attached Annexation Petition are owners of real property in the area proposed for annexation. Furthermore, I certify that said owners constitute more than 50% of the landowners in the area proposed for annexation and own more than 50% of the land in said area, exclusive of streets and alleys. Signature SEPTEMBER 18, 1996 Date -4- i LEGAL DESCRIPTION OF REAL PROPERTY INCLUDED IN THE ANNEXATION A tract of land situate in the County of Larimer, State of Colorado to -wit: Please see attached. Owner's Signature Address POUDRE VALLEY RURAL ELECTRICAL ASSOCIATION, INC. Owner's Sign ure yyf�l� 7649 REA PARKWAY Address FORT COLLINS, CO 80528 City State Zip City SEPTEMBER 18, 1996 Date Date -3- State Zip 1 STATE OF COLORADO) ) ss. COUNTY OF LARIMER) The undersigned being first duly sworn upon his oath states: That he was the circulator of the attached petition for annexation and that each signature therein is the signature of the person whose name it purports to be. Circulator's Si Subscribed and sworn to before me this day of 1996, by Witness my hand and official seal. My Commission expires: Notary P b i ' -2- i PETITION FOR ANNEXATION The undersigned hereby petition the Council of the City of Fort Collins, Colorado, for the annexation of an area, to be referred to as the REA Annexation to the City of Fort Collins. Said area, consisting of approximately 9.39 acres, is more particularly described on Attachment "A", attached hereto. The petitioners allege: 1. That it is desirable and necessary that such area be annexed to the City of Fort Collins. 2. That.the requirements of Sections 31-12-104and 31-12-105,C.R.S., exist or have been met. 3. That not less than one -sixth of the perimeter of the area proposed to be annexed is contiguous with the boundaries of the City of Fort Collins. 4. That a community of interest exists between the area proposed to be annexed and the. City of Fort Collins. 5. 6. That the area to be annexed is urban or will be urbanized in the near future. That the area proposed to be annexed is integrated with or capable of being integrated with the City of Fort Collins. 7. That the petitioners herein comprise more than fifty percent (50%) of the landowners in the area and own more than fifty percent (50%) of the area to be annexed, excluding public streets, alleys and lands owned by the City of Fort Collins. 8. That the City of Fort Collins shall not be required to assume any obligation respecting the construction of water mains, sewer lines, gas mains, electric service lines, streets or any other services or utilities in connection with the property proposed to be annexed except as may be provided by the ordinances of the City of Fort Collins. Further, the petitioners consent pursuant to Section 37-45-136(3.6), C.R.S., to the inclusion of such property into the Municipal Subdistrict, Northern Colorado Water Conservancy District. The petitioner specifically reserves the right to withdraw this petition at any time prior to the Second Reading of the Annexation by the Council of the City of Fort Collins, Colorado; and/or as provided in the attached Annexation Agreement. WHEREFORE, said petitioners request that the Council of the City of Fort Collins approve the annexation of said area. Furthermore, the petitioners request that said area be placed in the CL - Limited Commercial Zoning District pursuant to Chapter 29 (Zoning) of the Code of the City of Fort Collins. POUDRE VALLEY RURAL ELECTRIC ASSOCIATION r Mayor Azari Page Two December 24, 1996 If the City is willing to suggest a resolution that it believes complies with the Petition and the Agreement, please contact Mr. Ronald Carey, General Manager, Poudre Valley Rural Electric Association, Inc., P.O. Box 272550, Fort Collins, CO 80527-2550, or by fax 226-2123, on or before January 3, 1997. Barring resolution -to these .issues, we must now proceed with development of the Property in accordance with the development and zoning rights available to us in Larimer County. sincerely, Norman L. ohnson, President Board of Directors Enclosure NLJ/mrf ' I DEC 31 RECU <� POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC. 7649 REA PARKWAY • P.O. BOX 272550 FORT COLLINS, COLORADO 80527-2550 December 24, 1996 Ms. Ann Azari Mayor City of Fort Collins POB 580 Ft. Collins, CO 80522 Poudre 0 Valley FORT COLLINS • (970) 226-1234 FAX NO. • (970) 226-2123 1-800-432-1012 DEC 2 61996 Re: Proposed Voluntary Annexation and Rezoning of 4809 South College Avenue by Poudre Valley Rural Electric Association, Inc. Dear Mayor Azari Poudre Valley Rural Electric Association, Inc. (Owner) voluntarily tendered to the City of Fort Collins, Colorado (City) a Petition for Annexation (REA Annexation) and a request that the property be placed in the C-L Limited Commercial Zoning District. Along with the Petition, the Owner tendered an Annexation Agreement (Agreement), describing specific conditions with regard to the REA Annexation, the use of the Property and to provide for the zoning of the Property. The requested C-L Limited Commercial zoning is the City's zoning district most equivalent to that which the Owner currently enjoys in Larimer County and is, therefore, a reasonable request to make of the City. I understand that on December 17, 1996, the City Council passed on first reading ordinances that would annex and zone the Property under the City's current H-B Highway Business Zoning District with a Planned Unit Development (PUD) Condition. Such action by the City is in conflict with both the Petition and the Agreement as adopted by the City in Ordinance No. 162, 1996 (with direction to delete paragraph 4 of the Agreement as agreed to by the Owner). (See attached Petition and Agreement.) It is our position that the action taken by the City is non- responsive to the question presented to them by the Petition, and the Agreement, and represents a denial of both. The Owner believes that the City cannot proceed with the second reading of Ordinance No(s). 162, 1996 and 163, 1996, unless --or until --agreement can be reached between the Owner and the City on these issues. Absent an agreement between the Owner and the City, the City must postpone additional actions in conflict with the Petition and the Agreement. AN EQUAL OPPORTUNITY EMPLOYER OPTION "B" Introduced, considered favorably on first reading, and ordered published this 17th day of December, A.D. 1996, and to be presented for final passage on the 7th day of January, A.D. 1997. Mayor ATTEST: City Clerk Passed and adopted on final reading this 7th day of January, A.D. 1997. Mayor ATTEST: City Clerk OPTION "B" ORDINANCE NO. 163, 1996 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE ZONING DISTRICT MAP CONTAINED IN CHAPTER 29 OF THE CODE OF THE CITY OF FORT COLLINS AND CLASSIFYING FOR ZONING PURPOSES THE PROPERTY INCLUDED IN THE REA ANNEXATION TO THE CITY OF FORT COLLINS, COLORADO INTO THE CL-LIMITED COMMERCIAL ZONING DISTRICT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Zoning District Map adopted pursuant to Chapter 29 of the Code of the City of Fort Collins be, and the same hereby is, changed and amended by including the property known as the REA Annexation to the City of Fort Collins. Colorado, in the CL, Limited Commercial Zoning District: A tract of land situate in the Northeast Quarter of Section 2, Township 6 North, : __Range 69 West_of_the.6th.P.M.,_LarimerCounty,_,Colorado„ whichconsidering_the_._ -._._ __ -._ _-- East line of the of Quarter of said Section 2 as bearing S 00°37'58" W and with all bearings contained herein relative thereto, is contained within the boundary lines which begin at the Northeast comer of said Section 2 and run thence S 00037*58" W 995.83 feet, and again N 89001'01" W 49.51 feet to the true point of beginning; thence S 00°35'38" W 450.00 feet; thence N 89*01'02" W 909.52 feet; thence N 00°43'58" E 450.00 feet; thence S 89001'01" E 908.43 feet to the point of beginning. Containing 9.3901 acres more or less. Section 2. That the Sign District Map adopted pursuant to Section 29-593.1 of the Code .of the Citv of Fort Collins be, and the same hereby is, changed and amended by showing that the above -described property is not included in the Residential Neighborhood Sign District. Section 3. That the Director of Engineering is hereby authorized and directed to amend said Zoning District Map in accordance with this Ordinance. Mayor and City Councilmembers December 31, 1996 Page 3 withdraw the petition. If so, it should be permitted to do so, so as to avoid the necessity of having to deal with a subsequent ordinance disconnecting the property. SJR: meg Attachment cc: Greg Byrne, Director of CPES Bob Blanchard, Current Planning Director Mayor and City Councilmembers December 31, 1996 Page 2 2. Council's decision is not contraryy to the annexation Retition. While the Council's decision may be contrary to the zoning requested in the petition, this is not legally impermissible. The Council has the discretion to decide whether to annex the property in the first instance and, if so, to decide what zoning is appropriate for the property. If REA is dissatisfied with the zoning, it may withdraw the annexation petition prior to second reading, since it has reserved the right to do so in the annexation petition. However, REA has not withdrawn the petition and, unless it does, Council is free to pass the annexation ordinance and zoning ordinance on second reading. 3. Alternatives-N available to the Council. On second reading, Council could adopt the H-B Highway zoning with a PUD condition as it did on first reading. However, as indicated above, the Council would then likely have to enact an ordinance disconnecting the property, if such action is requested by the petitioner. - - " - -- - The seccond alternative —available to the Council would be to place the property in the C-L zoning district as requested by the petitioner. It is my understanding from talking to the Mayor that some Councilmembers may have avoided this alternative on first reading because they were concerned that it might have constituted spot zoning. Spot zoning occurs when a rezoning is designed to afford special treatment to a particular property owner and relieve the subject property from zoning restrictions which interfere with. the property owner's intended use, irrespective of the comprehensive plan or the character of the neighborhood. In my opinion, placing this property in the C-L zoning district would not constitute illegal spot zoning. This is because such zoning would, according to Bob Blanchard, be consistent with the City's Comprehensive Plan, even though this zoning district presently exists in only one other location in the City. Therefore, if Council believes that this property would be better developed in the City than in the County, and that the kind of design review that would be available to the Planning and Zoning Board under the C-L district provides adequate protection to neighboring properties and the City as a whole, then I see no legal reason why the property cannot be placed in that zoning district. In case Council wishes to reconsider its zoning decision and place the property in the C-L zoning district, I have attached a copy of Option B of the zoning ordinance, which was in your packet on first reading. Adoption of this option would not require a motion to reconsider. This option could simply be substituted for the zoning ordinance as adopted on first reading. 4. Recommendation. My recommendation is to proceed with second reading on the zoning ordinance unless the petition is withdrawn by the property owner prior to Tuesday night. If second reading results in placing the property in the H-B Highway district with a PUD condition, then it would be helpful for the Mayor to inquire of REA as to whether it wishes to City Attorney JAN 6 RECU CONFIDENTIAL City of Fort Collins � n u •r u • C : ► o ul DATE: December 31, 1996 TO: Mayor and City Councilmembers FROM: Steve Roy, City Attorney�� RE: REA Annexation and Zoning On first reading, the Council adopted Option B of Ordinance No. 162, 1996, annexing the REA property. It also adopted Option A of Ordinance No. 163, 1996, which placed the property into the H-B Highway zoning district, with a PUD condition. On Monday, staff received a copy of a letter from Norman L. Johnson, President of the REA Board of Directors, in which Mr. Johnson contends that the Council's action is in conflict with, and is a "denial" of, both its annexation petition and the proposed pre -annexation agreement. Mr. Johnson takes the position that "absent an agreement between the owner and the City, the City must postpone additional actions in conflict with the petition and the agreement." He then suggests that the City contact Ronald Carey if it wishes to suggest a resolution that complies with the petition and the agreement. In view of this letter, I thought it might be helpful to discuss Council's alternatives from a legal standpoint: 1. Council's decision is not contrary to the annexation agreement. City Council's decisions are not in conflict with the pre -annexation agreement, because that agreement was never approved by the City. The agreement will take effect, if at all, only when the Council approves the annexation ordinance on second reading and the Mayor executes the agreement. Moreover, Council's only obligation under the agreement with regard to zoning is that it zone the property within 30 days of the effective date of the annexation ordinance. If the Council does not place the property in the C-L zone, the City has agreed that, upon the request of the property owner, it will disconnect the property from the City. Thus, placing the property in the H-B Highway zoning district would not constitute a violation of the agreement, even if the agreement were in effect. 300 LaPorte Avenue • PO. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6520 • FAX (970) 221-6327