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HomeMy WebLinkAboutHUGH M WOODS PUD - FINAL - 26-88E - LEGAL DOCS - MEMO / P & Z BOARD• 0 MARCH & MYATT, P.C. ARTHUR E. MARCH, JR. ATTORNEYS AND COUNSELORS AT LAW RAMSEY D. MYATT 110 EAST OAK STREET ROBERT W. BRANDES, JR. FORT COLLINS, COLORADO 80524-2880 RICHARD S. GAST (970) 482-4322 LUCIA A. LILEY TELECOPIER (970) 482-3038 J. BRADFORD MARCH LINDA S. MILLER JEFFREY J. JOHNSON MATTHEW J. DOUGLAS June 2, 1997 Members of the Planning and Zoning Board 300 Laporte Avenue Fort Collins, CO 80521 Re: Hugh M. Woods Final P.U.D. Dear Members of the Planning and Zoning Board: ARTHUR E. MARCH 1908-1981 MAILING ADDRESS: P.O. BOX 469 FORT COLLINS, CO 80522-0469 This firm represents Front Range Limited Partnership ("Front Range"), 5601 N. Hacienda del Sol Road, Tuscon, AZ 85718 (telephone - 520/266-1501). Front Range is the owner of the real property which was approved as the Hugh M. Woods Final P.U.D. (the "P.U.D.") by the Planning and Zoning Board on February 27, 1995, and upheld on appeal by the City Council on April 18, 1995. On May 19, 1997, the Planning and Zoning Board considered a request by Front Range for an extension of the condition of final approval which requires the execution of a Development Agreement. The Planning and Zoning Board granted the extension to a date three years after the approval the P.U.D. Such date would be, according to City Code §29-512 and §29-514, the date upon which rights to appeal the approval expired or the date of the resolution of an appeal. Front Range's extension request incorrectly cited March 10, 1995 as the date of the City Council's resolution of the appeal of the P.U.D.; the correct date of the City Council's resolution of the appeal, and the date of the final approval of the P.U.D., was April 18, 1995. Front Range does not appeal the granting of the request for extension, but requests that the date to which the extension was granted be clarified to the date three years after the correct date of the resolution of the appeal, or April 18, 1998. The Planning and Zoning Board conditioned its approval of the extension request upon two conditions. The first condition requires Front Range, and any contract purchaser, to waive in writing for recordation with the Larimer County Clerk and Recorder, its right to assert a three year statutory vested right from the date the Development Agreement condition is met. Front Range agrees to this condition of approval. 0 Members of the Planning and Zoning Board June 2, 1997 Page 2 The grant of the extension was also conditioned upon the requirement that Front Range waive its right to pursue any further extensions of the P.U.D., either administratively or by the Planning and Zoning Board, as would normally be permitted for valid planned unit developments pursuant to §29-526(H) (3) . As the applicant for the extension and the owner of the property, Front Range appeals the imposition of this second condition on the grounds that the Planning and Zoning Board failed to properly interpret and apply relevant provisions of the Code and Charter [Sec. 2-48 (b) (1) ] and failed to conduct a fair hearing in that the Planning and Zoning Board exceeded its authority or jurisdiction as contained in the Code or Charter [Sec. 2-48 (b) (2) (a) ] . In support of its appeal, Front Range believes that it has, by accepting the first condition of the extension approval, already agreed to waive a foundational property right, i.e., the right to undertake and complete development of the P.U.D. within three years of execution of a Development Agreement as established by the Colorado vested rights statute [C.R.S. 24-68-101 et seq.]. Such a waiver substantially shortens the time period within which Front Range must finish the P.U.D. In light of the waiver required by the first condition and the unique circumstances surrounding this P.U.D., including specific economic and market challenges encountered by Front Range and the evolution of the City's growth policies into a new land use scheme, Front Range believes it is unreasonable to further limit its ability to complete the development by foreclosing even the possiblity of any further extension in any circumstance. The L.D.G.S. provision governing extensions of final planned unit developments [§29-526 (H) (3)] does not authorize automatic extensions, but instead preserves for developers the right to request an extension, with the burden of proving its necessity. The provision contains sufficient criteria for the City's use in evaluating an extension request to insure its appropriateness, and provides developers with a mechanism to either (i) deal with sometimes complex and unforeseeable complications without jeopardizing an entire project very late in the development process; or (ii) permit completion of a "substantially complete" project into which large investments have been make. Without any way to accurately predict what will transpire between now and the extended time limit for this P.U.D., which is only ten (10) months away, the Planning and Zoning Board has deprived the developer of even the possibility of limited extensions, making it increasing difficult and perhaps even impossible for Front Range to complete the P.U.D. as approved. Front Range believes that very few developers, if any, would be willing to risk the huge financial costs of moving toward completion of infrastrucutre improvements with the possibility of r • Members of the Planning and Zoning Board June 2, 1997 Page 3 having the entire P.U.D. invalidated at the last moment, especially if it was unable to exercise a right to request an extension that every other developer would be entitled to under the L.D.G.S. The extension approval, with this condition, is meaningless to Front Range, forcing them to either abandon an approved and valid P.U.D. or risk substantial financial losses. We request, therefore, on behalf of the appellant, Front Range, that you modify the extension of the Development Agreement condition of the Hugh M. Woods Final P.U.D. approval by eliminating the second condition of approval which requires Front Range to waive all right to seek future extensions. Thank you for your consideration. Sincerely, MARCH & MYATT, P.C. Lucia A. Liley LAL/jpk CC: Front Range Limited Partnership Steve Olt, Current Planning