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HomeMy WebLinkAboutMONTAVA - PHASE D CORE AND IRRIGATION POND - BDR240006 - SUBMITTAL DOCUMENTS - ROUND 2 - Responses (3) Bushong & Holleman PC A t t o r n e y s · a t · L a w 1966 13th Street, Suite 270, Boulder, Colorado 80302 June 12, 2024 Sent via Email: tsullivan@fcgov.com Todd Sullivan, Development Review Coordinator City of Fort Collins 281 N. College Ave., Fort Collins, CO 80524 Re: Response to LWIC and WRCC Comment Dear Mr. Sullivan, This law firm represents the entities planning the Montava development. On May 30, 2024, legal counsel for the Larimer and Weld Irrigation Company (“LWIC”) and WRCC, Inc. (“WRCC”) (collectively “Ditch Companies”) provided you with a letter alleging drainage and stormwater issues associated with Montava Phase D (“May 30 Letter”). This letter is in response to that May 30 Letter. A response to the Ditch Companies’ engineering memorandum from W.W. Wheeler will follow. The Final Design Drainage Report for the Montava Subdivision, Phase D prepared by TST, Inc., dated May 1, 2024 (“Drainage Report”), demonstrates how Phase D will be in compliance with the Fort Collins Stormwater Criteria Manual. The May 30 Letter does not take issue with that compliance – and instead questions Montava’s reliance upon the Larimer and Weld Canal (“Ditch”) for stormwater drainage. 1. AB-LWIC Agreement. The right to deliver stormwater from Phase D and certain other Montava lands was explicitly granted by LWC to Anheuser-Busch (“AB”) by agreement dated May 8, 1986 (“AB-LWIC Agreement” or “Agreement”) and was recognized by the City in 1986 and again more recently. The recitals in that Agreement recognize that the AB lands naturally and historically drain into the Ditch and that a natural consequence of developing those lands is “an increased volume and flow-rate of stormwater flowing into the Ditch.” The Agreement provides that AB will manage its stormwater discharges into the Ditch, as follows: “a. to cause stormwater drainage from A-B lands which enter the Ditch to do so from specific point sources only; and b. to limit the Steven J. Bushong Paul (Fritz) Holleman ——— Cassidy L. Woodard Gunnar J. Paulsen Kate A. Bosh Karen L. Henderson Of Counsel ——— Veronica A. Sperling Retired -——— (303) 431-9141 Tel. BH-Lawyers.com Mr. Todd Sullivan June 12, 2024 Page 2 of 4 discharge into the Ditch from aggregate of all such point sources to a rate of flow rate not in excess of the historically to be expected once every one-hundred years.” (¶ 1). Although the recitals recognize that development will result in an increased volume of stormwater discharged into the Ditch, this clause limits only the rate and does not limit the volume of stormwater to be discharged. Importantly, the Agreement states it “shall have perpetual existence, and the rights and obligations will run with the land, and will benefit and obligate the parties’ successors and assigns.” (¶ 4). The May 30 Letter does not contest the applicability of the AB-LWC Agreement to Phase D or the right it grants to discharge stormwater into the Ditch. Instead, the May 30 Letter asserts that the Agreement “must be properly analyzed and evaluated according to its terms.” (emphasis in original). Montava has done exactly that in response to and in communication with the City through various modeled analyses performed by Martin/Martin. See e.g., May 31, 2024 letter from Martin/Martin (“M/M”) to Heidi Hansen, attached hereto (“M/M Letter”). More specifically, the AB-LWIC Agreement places two limits on stormwater arising on AB land west of the railroad right-of-way as follows: (1) discharges into the Ditch are limited to the design capacity and historic flows of the existing point source; and (2) shall not be conveyed east of the railroad for discharge into the Ditch “except for flows that historically existed.” (¶ 2.c). Since Phase D lies west of the railroad, Martin/Martin conducted a hydraulic analysis of the existing 12” x 24” box culvert (“Box Culvert”) under the railroad that allows stormwater from west of the right-of-way to discharge through a point source into the Ditch. (See M/M Letter). The analysis showed that the Box Culvert carries up to 50 cfs in a large storm event where stormwater is temporarily impounded at the railroad. With proposed detention Pond 427 in Phase D, M/M documented that the 100-year developed discharge will not exceed 5 cfs (a 2-year historic rate). Further, a SWMM analysis demonstrated that the developed Phase D and the undeveloped tributary area of the Montava property west of the railroad meets the State of Colorado drain times through the Box Culvert. Moreover, given the reduction in runoff to 2-year historic rates, M/M determined that the development of Phase D will not adversely impact the amount of water inadvertently detained at the railroad embankment. Accordingly, the proposed stormwater management in Phase D reduces the historic rate of stormwater discharge into the Ditch and was designed to not only meet the City’s requirements, but also State’s requirements and those of the AB-LWIC Agreement. 2. Birky Stipulated Order. The other major point raised by the Ditch Companies is the need for compliance with a stipulated order entered in 1976 in Civil Action 21652 (“Birky Order”). The Birky Order is simply another instance where LWIC agreed to the discharge of stormwater into the Ditch. The Birky Order describes a drainage system to be constructed consisting of a collection point and 18” closed tile line (“pipeline”) to help collect stormwater and wastewater arising from certain lands and discharge it into the Ditch, including portions of the AB lands and Phase D. The Birky Order does not, however, say anything about limiting other means of stormwater entering the Ditch. Further to that point, the AB-LWIC Agreement was executed 10-years after the Birky Order and clearly contemplates additional point sources of stormwater discharge into the Ditch. Mr. Todd Sullivan June 12, 2024 Page 3 of 4 The Birky Order provides another historical means for stormwater arising from west of the railroad to be discharged into the Canal east of the railroad. That’s because the lands allowed to drain into that pipeline are located west of the railroad, while the Birky lands burdened by the pipeline lie east of the railroad where the pipe discharges into the Ditch. See attached map of lands described in Birky Order. Accordingly, at the time of the AB-LWIC Agreement, there was a pipeline used to help carry stormwater from Phase D and other lands for discharge into the Ditch east of the railroad and, as noted above, the Agreement specifically allows such existing stormwater discharges to continue. (Agreement ¶ 2.c). Further, the existing conditions modeling considers a stormwater crossing of the railroad that appears consistent with the system that the Birky Order describes. Lastly, the May 30 Letter makes assumptions based on the Birky Order that are not stated anywhere in the Order and which frankly defy reason. For example, the May 30 Letter assumes the pipeline described in the Birky Order is “[t]he best information available as to the historic rate and volume of drainage for lands in this area of the Cooper Slough.” This statement defies reason. It also ignores thorough hydrologic studies utilizing the latest modeling methodologies to estimate historic runoff rates for the overall Cooper Slough watershed, which LWIC was involved with as a stakeholder. The historical rate of stormwater arising from these lands far exceeds the capacity of a single 18-inch pipeline in larger storms and not all of the lands described in Birky Order even drain to the single collection point that is described. On its face, the Birky Order simply describes one “drainage system” allowed to discharge into the Ditch that was agreed to by LWIC and the other parties. 3. Other Issues Raised in May 30 Letter. In addition to the foregoing issues raised by the May 30 Letter, the following are brief responses made to other issues raised in the letter. 1. The argument that Montava cannot benefit from the AB-LWIC Agreement because it doesn’t own the AB land is entirely without merit. As the City is well aware, Montava was granted vested property rights in developing those lands by the City and is only seeking to finalize certain land use approvals before closing on the lands which are under contract. Indeed, Phase D can only be constructed once Montava acquires the AB land. The only reason Montava has not yet closed on the AB lands is because WRCC never approved any ditch crossings needed for final approval of Phases G and E despite nearly 6 years of negotiations, which led to starting Phase D which the Ditch Companies are also now opposing. In the pending district court case regarding the unapproved Phase G and E ditch crossings, WRCC made a similar ownership argument in a motion to dismiss which the district court rejected. 2. One day after the AB-LWIC Agreement was executed the City sent a letter finding the Agreement “to be in good order … [and] approving the agreement.” (p.1). The May 30 Letter claims the City only partially approved the Agreement, which is not correct. The City approved the Agreement, recognizing it “appears to be an excellent solution to some of the storm drainage problems in the area … and does satisfy some of the drainage requirements for the whole tract.” The fact that the Agreement may not solve all drainage Mr. Todd Sullivan June 12, 2024 Page 4 of 4 issues – does not render the approval partial. It just means additional stormwater measures or approvals may be required by the City. As is clear from the Drainage Report, Montava’s drainage plan is not limited to just the Agreement and was designed in accordance with the City’s Stormwater Criteria Manual. Please let us know if you have any questions. Sincerely, BUSHONG & HOLLEMAN, PC _________________________ Steven J. Bushong Counsel for HF2M, Inc., Montava Partners, LLC, and Montava Development & Construction LLC Encl. cc: Ryan Byrne, P.E. Don Taranto, P.E. Max Moss, Project Manager - Montava Forrest Hancock, Development Director – Montava Ryan Donovan, Esq.