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HomeMy WebLinkAboutSPRING CREEK CENTER PUD FINAL - 17 90D - CORRESPONDENCE - CITY HALLCity Manager's Office March 4, 2003 David Neenan 2620 East Prospect Road Fort Collins, CO 80525 Dear Dave: Attached is a copy of a memorandum setting forth our findings in relation to the Spring Creek Center PUD — Determination of Status of Vested Right. Please call me if you, or Bill, have any questions. Sincerely, John F. Fischbach City Manager /khp Attachment cc: Gregory Byme, Director of Community Planning and Environmental Services Bill Reynolds 300 LaPbrte Avenue • P.O. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6505 • FAX (970) 224-6107 • TDD (970) 224-6001 www.fcgov.com MEMORANDUM Date: February 26, 2003 To John Fischbach, City Manager From: Greg Byme, CPES Director CC: Steve Roy, City Attorney Paul Eckman, Deputy City Attorney Ron Phillips, Transportation Services Director Re:. Spring Creek Center PUD - determination of status of vested right The Growth Management Lead Team discussed the status of the Spring Creek Center PUD at its meeting on February 18, 2003. There was a question about the date for vested rights for this mixed -use PUD at the southeast corner of East Prospect Road and Timberline Road. The Planning and Zoning Board approved the Spring Creek Center PUD under the LDGS on April 1, 1999 for convenience store, fast food, financial institutions, and multi -tenant (retail, office, restaurant, and/or other business service or industrial) uses on 11.6 acres. The Development Agreement for the Spring Creek Center PUD was dated February 9, 2001 and signed by the Sharp Point Properties, LLC (the developer) and the City (by the City Manager). According to the Vested Property Rights, Section 29-514 Approval; effective date; amendments of the Land USE REGULATIONS in effect at the time of Planning and Zoning Board approval, it states: "(a) A site specific development plan shall be deemed approved either upon expiration of any right of appeal of the approval by the Planning and Zoning Board or Director of Planning, as applicable, relating thereto, or, in the event that any such decision of approval has been appealed, upon final resolution of such appeal; subject to the right of judicial review. The developer must have undertaken and completed the development of an approved site specific development plan within three (3) years from the effective date of approval. For the purposes of this Subdivision, a developer has "undertaken and completed the development " when all engineering improvements (water, sewer, streets, curbs, gutter, street lights, fire hydrants and storm drainage) are installed and completed in accordance with city rules and regulations." (Emphasis added.) • According to the City Engineering Department, the developer has, to date, adequately completed engineering improvements (infrastructure) to satisfy the aforementioned vested property rights criteria for Lot 1 only of the Spring Creek Center PUD. • The developer, Sharp Point Properties, LLC, has relied on the effective date of approval being February 9, 2001, based on. the following language in the signed Development Agreement:: 1. General Conditions A. The terms of this Agreement shall govern all development activities of the Developer pertaining to the Property. For the purposes of this Agreement, "development activities" shall include, but not be limited to, the following: (1) the actual construction of improvements, (2) obtaining a permit therefor, or (3) any change in grade, contour or appearance of the Property caused by, or on behalf of, the Developer with the intent to construct improvements thereon. B. All water lines, sanitary sewer collection lines, storm sewer lines and facilities, streets, curbs; gutters, sidewalks, and bikepaths shall be installed as shown on the approved utility plans and in full compliance with the standards and specifications of the City on file in the office of the City Engineer at the time of approval of -the utility plans relating to the specific utility; subject to a three (3) year time limitation from the date of execution of this Agreement. In the event that the Developer commences or performs any construction pursuant hereto after the passage of three (3) years from the date of execution of this agreement, the Developer shall resubmit the. utility plans to the City Engineer for reexamination. The City may then require the Developer to comply with the approved standards and specifications of the City on file in the office of the City Engineer at the time of the resubmittal. [emphasis added] The Development Agreement at III (E) also says Nothing herein contained shall be construed as a waiver of any requirements of the City Code, Land Use Code, or Transitional Land Use Regulations (as applicable) and the Developer agrees to comply with all requirements of the same. If the City were to take the position that the effective date of approval for the Spring Creek Center PUD is February 9, 2001, then the developer would have until February 9, 2004 to "undertake and complete the development" After a lengthy discussion by City staff present at the GMLT meeting, and some concerns expressed about potential adverse impacts created by a proposed fast food restaurant with drive -through on Lot 2 of the Spring Creek Center PUD, we reached a consensus position to support the date of the mutually signed Development Agreement (February 9, 2001) as the effective date of approval for the development plans, even though the City could technically defend a contrary position. The developer would still be subject to all the requirements set forth in the agreement. We based our determination of the following relevant findings: 1; The project was processed during the transition period between the LDGS and the Land Use Code, when many projects took an unusually long time to complete their development agreements. 2. There is a clear fairness question. The seemingly conflicting language between. the Code and the Development Agreement was not a problem at the time that the form of agreement was developed, because the Board approval and the execution of the agreement were then both occurring at approximately the same point in time.. Later, though, there came to be a considerable gap between the two events, and in this situation, with the Board approval and development agreement coming several months apart, the developer understandably relied upon the language in the Agreement, rather than the Code language. 3. The potential for recurrences of this situation has been rectified in the new Code. Final Compliance (site -specific development plan approval) now occurs as an administrative approval; concurrent with execution of the development agreement.