HomeMy WebLinkAboutPONDEROSA PARK PUD REPLAT - FINAL - 17-87A - LEGAL DOCS - LEGAL COMMUNICATIONCITY 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 Vt�
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
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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.
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