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HomeMy WebLinkAboutPARAGON POINT PUD FINAL - 48 91B - CORRESPONDENCE - LEGAL COMMUNICATIONJOHN H. HUISJEN ATTORNEY AT LAW A Professional Corporation February 21, 1992 Mr. Steve Olt Fort Collins Planning Department P. O. Box 580 Fort Collins, CO 80522 Re: Paragon Point Phase I Dear Steve: 1136 East Stuart Street, Suite 4204 Fort Collins, Colorado 80525-1195 Telephone (303) 493-2550 Enclosed is a letter from Roger Prenzlow of Associated Brokers of Fort Collins concerning the Paragon Point property. Also enclosed is a document entitled "Chronology Environmental Concerns" prepared by Mr. Prenzlow. I request that these materials be copied and enclosed in the packet of materials for the Planning and Zoning Board's agenda for final consideration of Paragon Point Phase I. Also, would you please distribute these materials to the Planning and Zoning Board members for consideration at the Board work session on February 21. Thank you for your assistance. Very truly yours, John H. Huisjen JHH/sam Enclosures calls on his behalf I determined that Mr. Shawn Hoff (currently the Poudre River Commissioner) had been employed as the ditch rider years earlier when the LCEF property was actively irrigated. On August 30th, 1991, Hoff, Collins and I met for lunch to try to determine how water might be delivered to the LCEF property and the proposed ponds. Mr. Hoff identified how the water was formerly delivered from the north near what is now proximate to Fairway Five in Southridge. He indicated that to the best of his knowledge all of means to deliver the irrigation water to the LCEF property were destroyed in the development of Southridge and the Southridge Golf Course except for some conduits that cross Fossil Creek. Fort Collins was an active participant in that destruc- tion. The third action is the recommended denial of the Final Plat for Paragon Point. The eastern part of the property is very desirable upscale development land and can be absorbed by the market rather quickly. The western portion does not enjoy the view amenity and Mr. Collins recognized that an amenity was necessary to distinguish these lots from other developments absent amenities, that are struggling. One of the most desir- able amenities to families is a park. The denial of the 9 acre park is fundamental and seriously erodes the desirability of this portion of the property. The insistence that people and Prairie Dogs can co -exist in spite of substantive testimony to the contrary is incredible. Must everybody be reminded that the City Staff actively participated in the planning of Southridge and what a disaster it was for the City Treasury. (the three main points above were clearly articulated in the meeting, some information has been added in this writing for clarification.) With Mr. Byrne in attendance, the same allegation which was made to him one week earlier regarding the devious nature in which the Natural Resources department has performed was repeated. Mr. Byrne was challenged to contradict the assertion that Mr. Wilkenson had numerous opportunities to identify the environmental concerns regarding Prairie Dogs and Hawks prior to December 11, 1991 and for his own reasons chose to not disclose the concern even though the questions had been asked. Instead he chose 3 days prior to the preliminary P & Z hearing to come forth with "new information" Exhibit A shows he clearly had knowledge long before that time. His late disclosure has cost the City, the Developer and the LCEF untold man-hours and money, furthermore it was a real disservice to Mr. Collins who has tried from the outset to create a development which would be a model for Fort Collins. Substantial other discussion took place regarding the implication of the very broad interpretation of criteria 14. Also the point was made that the LDGS has been in effect for many years and on similar and adjacent properties had never been so invoked. Those properties being Southridge, Oakridge and Brittany Knolls. In a wrap up the City Manager stated that he needed time to discuss the issue with staff and his legal counsel. He stated that if any city staff had been devious as alleged they would be fired. It was also agreed that an on site meeting on February 19, 1992 might be in order. Feb. 19, 1992 Absent any indication that the City staff would change its recommendation in spite of misconduct alleged on 3 occasions to 3 different levels of management I went to the Natural Resources office to check their file of "Fort Collins Environmental Record". The visit confirmed two facts, one that "The Prairie Dog Guild" (exhibit A) article by Karen Manci of the City Natural Resource Department was published in the winter of 1990, probably early- to mid- December. Secondly, that Karen Manci is a subordinate of Rob Wilkenson. f FORT C'6LL NS ENVIRONMENTAL RECORD "THE PRAIRIE DOG GUILD" By Karen Manci The sun is shining. Afternoon temperatures are expected to approach 70 degrees -- a per- fect day for field work. Susie Gordon and Karen Manci, resource associates with the City's Natural Resources Division, head out to south-central Fort Collins. Their job is to check sites within the Urban Growth Area that have been mapped as wetlands and wild- life areas and to map new sites that were not included on the original mid-1980's maps. Gordon and Manci stop at a site south of the Southridge Golf Course and write up a abitat description of a portion of the Fossil Creek drainage. Prairie dogs are spotted. "Raptor Alert!" They watch a hawk swoop over the prairie dog town. Binoculars out, they try to get a fix on the hawk to identify the species. However, the bird quickly soars out of sight over a ridge to the west. Gordon notices that the prairie dogs are still quite agitated -- barking their alarm calls. The two resource asso- ciates soon discover the cause for the ani- mals' worry -- a rough -legged hawk has cap- tured one of their clan! But the rough -legged hawk is not the only raptor at the kill. A few yards away, two ferruginous hawks patiently wait for any mor- sel that may drop off from the rough -legged hawk's lunch. A crow and a magpie also are present. These bolder birds, within a few feet of the dining hawk, nervously pace back and forth, awaiting any tidbit that may be thrown aside as the rough -legged hawk quickly gulps down the prey. In the distance, two more ferruginous hawks are spotted. One appears to be tearing away at a small portion of a prairie dog. was this a stolen treasure from the rough -legged hawk? As Gordon and Manci study the scene, they begin to see the bird community as a feeding guild, an association of birds that use Simi- lar food resources. Only a few days earlier, they had attended the Fort Collins Audubon meeting where Dr. Richard Knight presented a talk about a feeding guild involving bald eagles in the Northwest. Dr. Knight, a Colo- rado State University professor in the Fish- ery and wildlife Biology Department, studied feeding behavior of bald eagles, ravens, and crows. Of course, the large bald eagle had top scavenger rights at relatively undistur- bed sites containing an appealing (to scaven- gers anyway!) dead salmon, followed by the smaller raven, and the still smaller crow, which was low man on the scavenger totem pole. Over the last three winters, Dr. Knight and several students also have been studying a feeding guild involving bald eagles, ravens, and magpies feeding on road - killed deer that researchers placed in Lory State Park west of Fort Collins. The resource associates quickly recognized that what they were observing at the Fort Collins prairie dog town also was a feeding guild, with the rough -legged hawk at the "top," followed by the ferruginous hawks, the crow, and the magpie. But wait, the guild was not complete. Flying overhead, an adult bald eagle spotted the activity. With one swift swoop down into the hawk gathering, the rough -legged hawk dropped its prey and the eagle seized the moment to snatch up the remains of the prai- rie dog and make a beeline over the west ridge. Gordon and Manci sat in awe of the spectacle. This had definitely been their most exciting field day yet. It also brought home the high importance of the local prairie dog communi- ties to raptors of the Fort Collins area. > > > > > > > > > > > > > > > > > > > > > > > PROPER AUTOMOBILE WARM-UPS Most cars need only 15 seconds to one minute of warm-up before driving, even in cold weather. Longer warm-ups are expensive, can damage the car, and will contribute to air pollution. 504 Enterprises, Inc. doing business as REAL ESTATE INVESTMENTS 215 West Oak, Suite 508 First National Tower Fort Collins, Colorado 80521 (303) 484-4596 February 21, 1992 Planning and Zoning Board City of Fort Collins P. O. Box 580 Fort Collins, CO 80522 Re: Paragon Point Ladies and Gentlemen: It's been very interesting to watch the process over the past 8 1/2 months, as Mr. Collins has been attempting to acquire and develop property now called Paragon Point. Early on, it was apparent that he sought to put forth a very high quality product that was sensitive to what the home buying public wanted. His initial concepts which were disclosed to the city staff in August 1991 were extremely well received. As you can see from the record, the Natural Resources Department comments indicate that the plan should integrate into the existing terrain. This has been done. The Parks and Recreation Department enclosed the park idea in the flood plain. The process went smoothly until 3 or 4 days prior to the December 16, 1991 preliminary P & Z hearing. Since that date, when a new interpretation of LDGS Criteria 14 was identified, there has been nothing more than turmoil. During those months, from June through December, both Mr. Collins and I had been notified by disinterested parties that an ambush was going to take place on environmental issues. I didn't take it seriously because there were no indications and Natural Resources had been asked about it and responded only with the wetlands issue which we had complied with. It must be recognized that numerous properties with similar terrain in the immediate vicinity of Paragon Point have been developed under this same LDGS Criteria 14. Southridge Greens could not have been built had this new interpretation been applied. If you believe LDGS Criteria 14 should be applied as now interpreted, then it should have been so stated at the Planning and Zoning Board February 21, 1992 Page 2 Concept Review in August, not 3 days before the preliminaryP & Z hearing. Fairness dictates that the rules be identified before the game starts, not in the middle. In those few days before the preliminary P & Z hearing, the city Planning staff was in a state of chaos over the new interpretation brought out by Natural Resources. Check it out, they were in endless meetings trying to get their (the city's) house in order. Why did they have to get their house in order? Because the action of Natural Resources brought the whole staff into the position of moving the target during the process. Why is the process now at this point where the city staff is recommending denial of a 9-acre park (something that the city holds in high regard elsewhere)? There is one of two choices. Either a city staff member or members are incompetent or the city staff has been devious and deceitful. There aren't any other choices. Look at the process as it's taken place. This matter has been brought to the table 3 times with the city administration, and not once has there been a denial or challenge. The Lutheran Church Extension Fund which I represent is in full support of Mr. Collins. On their behalf, I urge you to approve the development plan as submitted by him. Sincerely yours C� + I, R V E. Prenzlo 504 Enterprises, Inc. doing business as A40d a" e4&MI, REAL ESTATE INVESTMENTS 215 West Oak, Suite 508 First National Tower February 20, 1992 Fort Collins, Colorado 80521 (303) 484-4596 LCEF Property (Paragon Point) Chronology Environmental Concerns Nov., 1990 At the request of David Moore, who was Project Manager for Dueck Co.t, I contacted Rob Wilkinson, (City of Fort Collins Natural Resources Staff) to determine what environmental concerns the City would have on the LCEF owned property. Wilkinson said he would look into the matter and get back to me. About a week later he called to tell me that there were some concerns about possible wetlands on the site and asked if it would be okay for us to meet on site with Army Corp of Engineers to confirm his finding. I agreed and that meeting took place on December 12, 1990. Wetlands were confirmed and the LCEF complied with criteria which was supplied by the City and Army Corp of Engineers. No other environmental concerns were expressed by Wilkinson. Aug. 26, 1991 Concept Review. The conceptual plan discussed showed an extension of 3k holes of golf into the area that is now a proposed park site. Mr. Collins had offered the land to the City without charge if they chose to use it to resolve problems on the back nine. It would have also facilitated an expanded driving range and 3 practice holes if his suggestion had been implemented. Special note should be made that in comment 3a passive play and activities were anticipated in the flood plain. Comment 3b noted the presence of Prairie Dogs and birds of prey tDueck was actively working under a Letter of Intent to purchase and develop the property. in the area and suggested that a recommendation come forth about the possibliity of retaining portions of the natural area for a Prairie Dog community. The proper perspective must be retained here - at that time the natural area was south of the east - west drainage and clearly south of all the park areas. Dec. 11, 1991 City Planning indicates to Byron Collins that a delay of December 16 P & Z review would be required because there were unresolved issues. At a subsequent meeting the issues were resolved except for new environmental issues brought up by Wilkinson. The issues from Wilkinson were two -fold. One having to do with rock outcroppings on the proposed lots on East Ridge. That issue was deferred until a meeting on site could be held with all parties in attendance subsequent to December 16, P & Z hearing, the other issue had to do with a planned 10 acre park, in the flood plain on the west side of Fossil Creek. Wilkinson alleged that new information indicated that the area was subject to criteria 14 of the Cities Land Development Guidance system (LDGS). As I understood it, the new information was that 2 Ferruginous Hawks had recently been identified on site and that the Prairie Dogs were a food source for the hawks. It was also inferred that the Ferruginous Hawk has recently been identified by the Colorado Division of Wildlife (DOW) as a "Species requiring Special Concern." To prevent a delay and since the information was so late in the process, it was agreed to designate the park site as Open Space, with final determination to be agreed on prior to final P & Z hearing. Mid -Dec. 1991 I met with the DOW Regional Manager, Walter Graul, Jerry Craig, Research Biologist and Beth Dillon, a stand-in District Wildlife Manager (the LCEF property is not her district). At this meeting Mr. Graul confirmed that Ferruginous Hawks were a species of Special Concern and that the designation is arrived at in a forum involving both governmental people and interest groups such as the Audobon Society. He indicated that his graduate degree involved birds of prey, but that he deferred to Mr. Craig, because Mr. Craig is considered a national expert on raptors. Mr. Craig indicated that he had met with Wilkenson on the site along with Beth Dillon. He confirmed that they had identified it as a wintering site for Ferruginous Hawks and that the Prairie Dogs were a food source for the Hawks. He also related that if development took place outside the floodplain area (the ridge east of Fossil Creek and the upland west of Fossil Creek) that there could be no assurance that the Ferrugi- nous Hawks would return to winter there. He also stated that the Ferruginous hawk was not under particular stress in this part of Colorado, while Utah was considering a designation of endangered. I believe that in response to a question about what would happen to the Hawks if the Prairie dogs were exterminated it was concluded that they would move elsewhere. There could not be a conclusion whether or not this would cause the birds any stress. In response to questions regarding possible and/or potential for mitigation he indicated that this might have some potential. He stated that the birds needed a substantial area of prey. It was also revealed that the Ferruginous Hawk has been classified of Special Concern for more than 10 years. About Dec. 22, 1991 In order to proceed with addressing the conditions of the approved preliminary plat an on site meeting was arranged with the following attendees. Tom Peterson, Steve Olt and Rob Wilkinson from City, Carl Leonard, Area Supervi- sor DOW, Jim Sell, planner for the Developer, Byron Collins, Developer, and myself, representing LCEF. Mr. Graul DOW Regional Manager arranged for Mr. Leonard to attend because the District Wildlife Manager was unavail- able. Mr. Leonard is his supervisor. At this meeting Mr. Leonard indicated that: a. It was nice to have this concern about envi- ronmental matters. b. The concern about perch sites for the Ferrugi- nous Hawks was probably ill-founded. They could and did sit on the ground. C. The specific area where the park was proposed had been almost completely devegetated by the Prairie Dogs. d. The Prairie Dogs had obviously moved onto the ground in recent years. e. In his opinion the 10 acre park site was not critical to the hunting range of the Ferrugi- nous Hawks and there was adequate range for them to move to, absent the Prairie Dogs from the Park site. f. He also was emphatic about the conflict be- tween people and Prairie Dogs. Coexistence in close proximity was an unreasonable expecta- tion. Shortly after this discussion Tom Peterson and I left for other appointments. The others remained to identify perch sites. Apparently, Wilkinson was so frustrated that he would not cooperate in staking out perch sites. I returned about an hour later, probably more and met Mr. Leonard as he was leaving. We had a short discussion and I believe that in his opinion the LCEF property develop- ment including the Park posed no threat of significance to the Ferruginous Hawks. Feb. 10, 1992 In an effort to determine where City Staff was heading John Huisjen scheduled a meeting with Greg Byrne, Director of Community Planning and Environmental Servic- es. In the course of looking through my files to document the November 1990 request for City environmental concerns I came across an item I'd received from David Moore sometime earlier, probably March or April 1991. That item is attached as exhibit A. Mr. Byrne in that meeting was confronted with the evidence that Wilkinson had been asked about environmental concerns in November 1990, had identified the wetlands issue and none other. Furthermore, that months in advance of December 10, 1991 Wilkinson and Natural Resources personnel were studying the LCEF site for Ferruginous Hawks or species of concern so that he could invoke Criteria 14 LDGS. The indica- tions are that he deliberately withheld this environmen- tal information for whatever reason or motivation. At this meeting Mr. Byrne indicated that the Staff position would require the retention of 52 acres of Prairie Dogs on site. He indicated that they had studied the area between Horsetooth Reservoir and Fossil Creek Reservoir which Natural Resources felt was a natural flyway for the Ferruginous Hawks and Bald Eagles. According to him the City had recently identified about 15 of each species. Much of the remaining discussion involved the fairness of now implementing the extremely broad interpretation of criteria #14 LDGS at this time. It was cited that the criteria had not previously been so interpreted on adjacent properties which had very similar situations. He seemed to agree that is true. Feb. 11, 1992 Meeting called to identify staff position to the develop- er. City attendees Tom Peterson, Planning Director, Steve Olt, Project Planner, Tom Shoemaker, Director Natural Resources, Byron Collins, Jim Sell, David Osborn, Attorney for Developer and myself. The staff position of requiring 52 acres of open space was identified. Mr. Shoemaker, who is Rob Wilkinson's supervisor, was again confronted about the deviousness of Wilkinson on this matter and provided with evidence exhibit A. Feb. 18, 1992 The Developer, Byron Collins, asked for a meeting with Steve Burkett, City Manager, to plead for reasonableness. Also in attendance Steve Roy, City Attorney, Paul Eckman, Deputy City Attorney, Greg Byrne, Byron Collins, Jim Sell, David Osborn and myself. Numerous points were made to the City Manager. Among others that a clear case could be made that subsequent to annexation of the LCEF property in the early 80's several distinct actions have been taken by the City of Fort Collins which have effectively destroyed the property value and use. The first being that in the study of the Fossil Creek Drainage Basin a number of options were presented by Simon Li, the engineering firm. The City opted for a least cost method which placed a very heavy burden on the LCEF property. That condition is that the property detain 450 acre feet of water in a 100 year storm. It further went on to adopt a baseline year of 1983 which is patently ridiculous. The second action involved the development of Southridge including the golf course. The LCEF property was historically irrigated. LCEF still retains about 175 acre feet of irrigation water. In the summer of 1991 Mr. Collins decided that one of the amenities required was several ponds. The question became how could he deliver the irrigation water to those ponds, since the water was part of the purchase from LCEF. He asked me how the water had been delivered since the on site ditches still remained. After several phone