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Home My WebLink AboutPONDEROSA PARK PUD REPLAT - FINAL - 17-87A - REPORTS - RECOMMENDATION/REPORT W/ATTACHMENTSITEM NO. 5 PLANNING AND ZONING BOARD MEETING OF August 24, 1987 STAFF REPORT PROJECT: Amendment to Ponderosa Park PUD - Final 1117-87A APPLICANT: John D. Martin OWNER: Same 1500 Laporte Ave. Fort Collins, CO 80521 PROJECT PLANNER: Debbie deBesche PROJECT DESCRIPTION: Request for final approval of 20 single family detached patio homes on 3.69 acres, located on Ponderosa Drive, 250 feet south of West Mulberry Street, zoned R-L, Low Density Residential. RECOMMENDATION: Approval EXECUTIVE SUMMARY: The applicant is requesting final approval of 20 single family detached patio homes on 3.69 acres, resulting in a density of 5.42 units per acre. The preliminary plan was approved by the Planning and Zon- ing Board on May 18, 1987 with the following three conditions: 1. Under the existing four phase plan legal questions had been raised and need to be examined and resolved. 2. Staff make a recommendation to the Board whether Phases 1 through 4 should be modified. 3. As part of the review, the status of current required amenities such as sidewalk and landscaping needed to be reviewed. The conditions have been satisfied and the project is in conformance with the Land Development Guidance System and is in substantial compliance with the approved preliminary plan, therefore, Staff is recommending approval. OFFICE OF DEVELOPMENT 300 LaPorte Ave. • P.O. Box 580 • Fort Collins, Colorado 80522 • (303) 221-6750 SERVICES. PLANNING DEPARTMENT Amendment to Ponderosa Park PUD Final #17-87A P & Z Meeting - August 24, 1987 Page 2 1. Background: The surrounding zoning and land uses are as follows: N: RL; Resident/Attorney Office S: RL; duplex (Ponderosa Park PUD) E: RL; Mobile homes (Skyline Mobile Home Park PUD) W: RL; Single family dwellings (Green Meadows Subdivision) The site was previously planned and approved as part of the Ponderosa Park PUD, which was approved by City Council on June 5, 1979. The approval was for 46 townhome units (duplexes and four-plexes) on 7.6 acres. Approxi- mately ten units were built as part of the first phase. The Planning and Zoning Board approved, with 3 conditions, the Preliminary plan at it's meeting on May 18, 1987. The conditions are as follows: 1. Under the existing four phase plan, a legal question had been raised and needed to be explained and resolved. Staff Response: In a memorandum from Paul Eckman, Assistant City Attorney, dated May 28, 1987, he states that: "It is my opinion that the agreement for phasing is an agreement between the original developer and the City of Fort Collins, and that the owners of the Skyline Mobile Park are not third party benefi- ciaries of this agreement. Accordingly, it is my opinion that the agreement may be amended by subsequent agreement between the City and the developer. There is no showing, anywhere in the agreement that any third parties were intended to be benefitted by it. Without a showing of intent, a third party beneficiary may not claim the benefit of an agreement." The applicant proposes to amend the agreement for phasing in conjunction with this final approval to reflect the process of development to be Phase 1, Phase 3 & 4, and then Phase 2. 2. Staff make a recommendation to the Board whether Phase 1 through 4 should be modified. Staff Response: Refer to staff response # 3 Amendment to Ponderosa Park PUD Final #17-87A P & Z Meeting - August 24, 1987 Page 3 3. As part of the review, the status of current required amenities such as sidewalk and landscaping needed to be reviewed. Staff Response: The ownership of Ponderosa Park exists as follows: Phase I - Indivival homeowners' with existing dwellings. Phase II - Mr. Betz (original developer) vacant. Phase III and IV - Mr. Martin; current proposal. When Ponderosa was originally developed by Mr. Betz there was a phasing plan drawn up indicating that the site would be developed in order of the phases. As stated in Staff's response to condition #l, the Developer intends to amend the phasing plan. This will be accomplished by the Development Agreement. At preliminary review questions arose on whether the open space landscaping obligations for Phase I had been met, along with amenities, i.e., the side- walk within the landscaping. The open space area is located along the eastern portion of Phase I and is 20' wide. A 4' wide concrete pedestrian walk is also located in this 20' wide open space area. A landscape bond was submitted at the time of Phase One, but did not include the sidewalk. The bond was released and there- fore, staff assumes that the landscaping requirements for Phase T had been met. The issue of whether or not Phase I's landscaping was complete arose later. Steve Burkett, City Manager, in a letter dated June 24, 1986, responded to the issue stating "The landscaping appears to have been installed as required for Phase 1". Staffs recent site visit indicated that the 20' open space area in Phase 1 is in native grass which is in compliance with the original approval. The area is somewhat unlevel and does not include the sidewalk. In Paul Eckman's memorandum dated May 28, 1987 he states: "It is my opinion that the intention of the covenants was to secure the landscaping obligations for the particular phase, and that the present developer would not have to post a land- scaping bond for the installation of landscaping in Phase I, or Phase II." Staff concludes that the landscaping is complete in Phase I and the respon- sibility of maintenance belongs to the homeowners' within Phase I. Regarding the sidewalk, Staff has determined that the City could not require the Developer of Phase 3 and 4 (Mr. Martin) to install the sidewalk on Phase I, because the City cannot put Mr. Martin into a situation of legal impossibility. Mr. Martin has proposed a sidewalk on his site which Amendment to Ponderosa Park PUD Final #17-87A P & Z Meeting - August 24, 1987 Page 4 would connect to the sidewalk in Phase I at the time the sidewalk in Phase I is installed. RECOMMENDATION: Staff has determined that the conditions for final approval have been met and the final plan is in conformance with the Land Development Guidance System and is in substantial conformance with the preliminary plan. There- fore, Staff recommends approval of the Amendment to Ponderosa Park PUD - Final. .. o' al m )4A 6L r- W ,i Il 0 I N I Lo' o I a � � vI — BUILVING 6NyE LOPE � i _ '*--- - > r-- _— �� Q 1 Ex4}yb1 I pexxnx A I I3 o44�" 1 \ :' �Dow—fNYRL0t4L L � w >�aaLFVoIP_. (�aY x <= III I II�� O \��. � 34 L No PAEkINb ON THE -- NORTH 6IOf OF PONPf¢ofA couci v N 2z + .l se' C-N _...� yRMex YY,MW e clh siD, DCnEoyf[ E. PrMt. LARD, glitfR } WICK D DKE PA"ilf-m T yEcTIoN 681•*961V4\ to*oo' No 3G✓ � 6Ey6ND I p�PRAINA-�'{U11Li1Y"111 --fRR-- LYI>i IRKMMtIW LINE W -- ialS1. 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POR 65TADWI HMEN1 PARIOO OF PLANT MATERIAL WATCRIu6 ZNAW OE FW H05E PROM INDIVIVJAL UNO'^. 4. MAINTENANCE OF ALL LANO6GAP6 AREAS SHALL 6e PY TN{ NDME OWNERS ASSOLIATION. NAIVE VMAIJV GRA00 MIX FAIRWAY LRE5TIAV WHEAI-P,- S LSY. S'LUAR7 OR aCµDIS HARD PE{GNC Ee D• YOKk TL RYE ;0Yo BUFFALO (PRA56 sHA¢PS De i.YUAU 2)Y. —C.." Tn, ma.. I�.m, D,hy ae Imvm om,r, me D..DrLm.. oe ue D. Eescrl GeEs Is I,NSc,D, Dl,ns Go Z-1 < i that U,Y ,c<ep[rtr Ue coW Mms ,M restrictions et forU an saltlrlmCsupe DIm. sign.e r�j a %N Do" 1 a t NOTE ?H► LANW AAPIN4 IN-tRALtS'A•,D ANV , EXctPT Tr a FLANTIN05 ApdALEN' TO A LOt LINE, MU4T eE PLA4T617 AT TPE TIME TH6 Hi'fY7104 PONPS ARe fsCAP{0, WHILH 14 NO LATeR THAN TH6 Ib6L1116 OF TNe •iICTH OWLD1Nb PfRM'T. THE LAN — APING ON TLAAf6 A', 'el AND "G' AND ALL 1016 SHAD, 66 PLA009 AT 1IM6 Or OLL-PANOY OP EAAH LOT, • 0 T g L F VA_:: t --EA ONE ELF VArlQAl RIGHl- SIDE. EtflvkriOIJ -1 - L EFT SIDE ELF-�Arlj-! REAR E LE VAI�10N! I--- — — —I I FftoN-r fl-EvA-riow L-i 30 ELIk'.-M Ho ME P&MULKg"-PAIA-PVD- DArt S-4-s7 • 0 POPULATION PROJECTIONS PROPOSAL: Ponderosa Park DESCRIPTION: 20 single family units on 3.69 acres DENSITY: 5.4-9- du/acre General Population 20 (units) x 3.2 (persons/unit) = 64 School Age Population Eleiiientary - 20 (units) x.054 (pupils/units) Junior High - 20 (units) x.028 (pupils/unit) = Senior High - 20 (units) x.025 (pupils/unit) = Affected Schools Design Capacity 1.08 .56 .50 Fnrnllmnnt Moore Elementary 546 578 Lincoln Junior High 740 704 Poudre Senior High 1260 1122 CITY OF FORT COLLINS M E M O R A N D U M TO: Debbie deBesche, City Planner FROM: W. Paul Eckman, Assistant City Attorney Vb DATE: May 28, 1987 RE: Ponderosa P.U.D. The owners of the Skyline Mobile Park, Inc., (the Hoffman's) have raised some issues with regard to the Ponderosa Park P.U.D. Among these issues are (1) the question of the development of Phases III and IV ahead of Phase II; (2) the question of whether any subsequent phase of Ponderosa Park P.U.D. may go forward until all landscaping is installed and adequately maintained in Phase I; (3) whether all landscaping has been adequately installed and maintained in Phase I. With respect to the phasing sequence, on June 5, 1979 the City entered into an agreement with the original developer for phasing of development of Ponderosa Park P.U.D. Although the agreement is subject to various interpretations as to its mean- ing, it implies that the phasing was to proceed in sequence of Phase I, Phase II, Phase III and Phase IV. It would seem to me that it is reasonable to conclude that the phasing agreement intended that Phase III would not be commenced until Phase II had been commenced. The agreement provides that Phase III commence "on or before completion of Phase II". My assumption is that the parties intended that Phase II be at least commenced, even though not completed, before commencement of Phase III. The same lan- guage is true with regard to Phase IV, ie. that Phase IV is to commence on or before completion of Phase III. Similarly, it would appear that the agreement has already been violated because Phase II has not been commenced on or before completion of Phase I, as seemingly required pursuant to the agreement. It is my opinion that the agreement for phasing is an agreement between the original developer and the City of Fort Collins, and that the owners of the Skyline Mobile Park are not third party benefi- ciaries of this agreement. Accordingly, it is my opinion that the agreement may be amended by subsequent agreement between the City and the developer. There is no showing, anywhere in the agreement that any third parties were intended to be benefitted UUIIII in, L. UlUl ODU UVULL IU V UI LL I-UUL 1 ATTORNEY by it. Without a showing of intent, a third party beneficiary may not claim the benefit of an agreement. With respect to Phase III and IV, I might call your atten- tion to paragraph four of the Phasing Agreement which provides that: No building permit shall be issued for any particular phase of the project until the necessary landscaping and bond requirements are satisfied. The landscaping and bond requirements may be found in the landscape covenants for Ponderosa Park P.U.D. executed June 5, 1979, and recorded at Reception Number 312390 of the Larimer County, Colorado records, on June 8, 1979. Those covenants require the owner or successor, to install and maintain the lands- caping in accordance with the landscape plan, and further pro- vides that the City will not issue any building permits for any particular phase of the project until such time that the owner has deposited with the City a bond, cash deposit or equivalent conditioned on guaranteeing the installation of all landscaping shown on the approved landscape plan. Such bond, cash deposit or equivalent shall be in the amount of 125% of the estimated cost of the landscaping improvements as determined at the time of application for any building permits for a particular phase. It is my opinion that the intention of the covenants was to secure the landscaping obligations for the particular phase, and that the present developer would not have to post a landscaping bond for the installation of landscaping in Phase I, or Phase II. It is my understanding that Mr. Martin, the present devel- oper, does not own Phase II, and all the lots in Phase I have been sold to individual home owners. It is also my understanding that you are attempting to determine the ownership of the open space as located on Phase I, in order that we may better ascer- tain whether Mr. Martin would have the legal right to enter those open spaces for the purpose of installing the sidewalk and doing any other landscape improvements that may yet remain incomplete in that area. With respect to whether the present developer of Phase III and IV may be required to complete landscape improvements that have yet to be installed in Phase I, my opinion must, due to lack of information as to ownership interest, remain somewhat condi- tional. The rule generally is that a subsequent purchaser of the development purchases not only the rights obtained by the previ- ous developer but also the obligations that the previous devel- oper has incurred. Simply put, if Mr. Baetz, as original devel- oper, had incurred an obligation to perform landscaping improve- ments on Phase I, and if Mr. Martin has purchased Mr. Baetz's interest, than he also has purchased Mr. Baetz's obligations. The issue is somewhat confused in this case because Mr. Martin has not purchased Phase II, and because we do not know at this point whether Mr. Martin has the legal right of entry upon the open spaces in Phase I, to perform the uncompleted landscaping improvements. If Mr. Martin does not have the legal ability to enter upon the premises to complete the landscaping improvements in Phase I, it is my opinion that the City would not be able to so require him to complete, because the City cannot put Mr. Mar- tin into a situation of legal impossibility. I would not think that any court, sitting in equity, would permit such a result. Although the landscape covenants give the City the right to enter upon the premises in Phase I and complete the improvements, and charge the cost of completion against the owners of the homes in that phase, the covenants only give the City a lien, in the event of non-payment, on the common open space upon which the installation or restoration was made. It would certainly not be my recommendation to the City that such a course of action be followed since the City would have a lien upon a piece of prop- erty which would not be very marketable in foreclosure, and the end result may be that the City would own the common open space. The covenants also provide that any assessment made by the City for the installation or restoration of landscaping shall be the personal and individual obligation of the owner or the successor and that the City may sue to recover money judgement for unpaid assessment. A question that is not well answered by the lands- cape covenants is who is the "successor" of the owner? Is the successor the subsequent owners of homes in Phase I? Is the suc- cessor the subsequent purchaser of other phases? An argument may be made that Mr. Martin is the "successor" since the landscape covenants always refer in the singular to "owner or successor". If the intention of the parties had been that the successors include the purchasers and homes, why did the covenants refer to "successor" instead of "successors"? Finally, what landscaping remains to be completed in Phase I? You have advised that it would be your opinion that all plantings have been completed and that the grass that has been planted is of the proper variety. It appears that the remaining landscaping improvements to be performed in Phase I are limited to the installation of the sidewalk and the possible removal of a couple of piles of dirt in the common space, and the re -seeding of that effect area. It would be my recommendation that if it should be deter- mined that Mr. Martin has the legal right to have access to the open space in Phase I, that he be required to finish the lands- caping that the City thinks appropriate in that area. If he does not have the legal right to access to the open space in Phase I, I would believe that because of this legal impossibility, his landscaping requirements ought to be limited to Phases III and IV. I believe that is up to the City to decide whether to modify the requirement for the installation of the sidewalk but since the sidewalk is for the benefit for the entire development, such decision ought to be made by the Planning and Zoning Board in a public hearing, after due notice has been provided by the effect property owners. WPE:kkg CITY OF F0 • CART COLLINS June 24, 1986 C. Spike Hoffman Skyline Mobile Park, Inc. Ft. Collins, CO. 80522 Dear Mr. Hoffman, In response to your letter of June 19, 1986, please be advised that staff has reviewed the agreements between the City and the owners of the Ponder- osa Park P.U.D. It appears that the property owners are not following the phasing schedule indicated in the agreements as they relate to the con- struction of buildings. According to the "Agreement for Phased Development of Ponderosa Park P.U.D." the owners were supposed to p ase construction beginning with phase I, then proceed with phases 2, 3 an in sequential order. All ten units in phase 1 have been constructed, a last unit being constructed in 1983. Building plans have been recently submitted for phase 4, which is not in the sequence or time frame required by the agreement. A hold has been placed upon issuance of any permits for phase 4 until the schedule problem has been resolved. The development agreement states that "no building permit will be issued for any particular phase of the project until the necessary landscaping and bond requirements are satisfied". The landscaping appears to have been installed as required for phase 1. In terms of the open space areas abutting your property, those areas are a part of phases 2 and 3 and will not be required to be installed until development occurs in those phases. The maintenance of these areas will be by either the property owner or some form of property owners association. Irrigation of all vegetated areas will be required, and may be accomplished • •�� Ouu L.auUF-Le AV. • r-.u. nox odu • rort Courns. Colorado 80522 • (303) 221-6505 Ponderosa Park PUD Page 2 by either irrigation or treated waters. The open space areas in phase 1 are being irrigated using public water. I do not know at this time whether the applicants intend to utilize irrigation or treated waters for future phases. I trust this letter answers the questions and concerns posed in your let- ter. Sincerely, Steven C. Burkett City Manager cc. Bonnie Tripoli, Development Coordinator Anne Fernan, Zoning Inspector Peter Barnes, Codes Administrator John Huisjen, City Attorney Thomas Peterson, Planning Director