HomeMy WebLinkAboutGERRARD ROADWAY DEDICATION - 29-02 - CORRESPONDENCE - LEGAL COMMUNICATION (3)Douglas D. Konkel
December 20, 2002
Page 4
expedite the procedure for resolving this problem. However, due to the shortness of life, I cannot
spend the rest of my career on this problem. So I'll provide the cookies and hot cocoa and we can
all get together and figure out what needs to be submitted to the City to finally process this
application.
T
ckman
Deputy City Attorney
WPE:mas
cc: Matt Baker, Civil Engineer III
Cam McNair, City Engineer
Peter Bames, Zoning Supervisor
Ted Shepard, Chief Planner
Gary Diede, Transportation Operations Director
Mike Smith, Utilities General Manager
Lance Newlin, Chief Construction Inspector
Dave Stringer, Development Review Supervisor
Felix Lee, Building and Zoning Director
Douglas D. Konkel
December 20, 2002
Page 3
3. Although a fire hydrant was shown on the plans to be installed on the west end of
the road, it appears that the hydrant has not been installed there and I am not certain
if that issue still exists or not. If a hydrant is intended to be installed on the west end,
then the City must have the right to install a water line throughout the length of the
roadway. If not, then the City would not need that right.
4. As I understand it from talking with Glen Schlueter, Mr. Gerrard also needs to pay
a stormwater fee as a part of his application process.
5. There needs to be a development agreement signed by both Gerrard and the City
as a part of the development process. I suppose this development agreement ought
to in some manner address the fact that a gate has been constructed on the west end
of the road by Mr. Gerrard most likely to keep "cut -through" traffic from going
through his property and on to Harmony Road. The City agrees that the gate is a
good idea and appreciates that he has installed it because it is neither in the City's,
the neighbors' nor Gerrard's interest to have folks cutting through his warehouse
property to gain access to Harmony Road.
6. This issue kind of goes back to the right-of-way question and it has to do with the
description to be contained in the dedication of the right-of-way, presumably on the
plat, particularly if the subdivision is to be a one lot subdivision. This right-of-way
needs to extend all the way to the north property line because the City does not
permit a person to retain a narrow strip of land between a public road and adjacent
property, because typically that retention is simply for the purpose of denying others
access to the public road.
The City wants all of these requirements to be completed within three months of the date of this
letter. The review of this Project Development Plan will be a "type 1" review meaning that it would
not go to the Planning and Zoning Board, but rather, would be heard by an Administrative Hearing
Officer. We want to get this accomplished rapidly. I am instructed to advise that ifthis has not been
accomplished within three months (and I will urge the City folks to move as quickly as they can in
the process of this once all of the documents are filed) the City will find it necessary to barricade
access to this unauthorized road via Timberline Road until such time as this problem is resolved.
The City will also seek a court order mandating that the road which has been constructed without
the necessary approvals be removed at Mr. Gerrard's expense. This road was constructed without
a development construction permit or a paving permit and, along Timberline Road it was constructed
on public right-of-way without permission from the City.
As you know, I am the quintessential reasonable person. I have met Gary Gerard and I like him.
He seems like a very nice guy. I know that both he and the City and some of the neighbors have had
a lot of heartburn over this issue for too long a time. I stand ready to help in any way that I can to
Douglas D. Konkel
December 20, 2002
Page 2
"right-of-way" rather than an "easement". You indicated that Mr. Gerrard would be willing to give
the City a "right-of-way" for road purposes but would want to limit that "right-of-way" so that it
could not be used for the installation of water and/or sewer lines. So, we are not far apart.
At my meeting this morning with the City staff, the City's position is essentially this. (There likely
will be some additional details and questions both on Mr. Gerrard's side and the City side but I want,
in this letter, to simply provide the City's position in a nutshell.) In order to conform to the City's
zoning requirements the road must be "public" but privately maintained by Gerrard. I do not believe
that Mr. Gerrard has expressed any opposition to that. In order for it to be a public road there must
be a dedication of a "right-of-way" to the City. This would be one of the submittal requirements for
Mr. Gerrard's application for approval of a Project Development Plan. He submitted an "easement"
and we would like him to submit a "right-of-way" dedication but we have no quarrel with his
limiting the usage of the "right-of-way" to road purposes and not to the installation of water and/or
sewer lines. So, we have agreement on that. If Mr. Gerrard should decide to actually construct a
development on his property which, as I understand it, would be a "one lot subdivision" then he
would need to install the necessary utility infrastructure to serve his development. In the meantime,
there is no need for the right-of-way to include water and sewer access if Mr. Gerrard insists that it
not be included. It also is a mystery to me as to why Mr. Gerrard would not want to plat the
subdivision as at least a "one lot subdivision" so that he could erect a residential dwelling unit on
the property since the dwelling unit which used to be on the property has not existed there for more
than a year and his right to replace it as a nonconforming use has expired. So that seems to my way
of thinking to be obvious although I must confess that he may have some reason why he does not
want to have the ability to construct the residential unit on that property. Maybe there is a tax reason
or some other reason that I am unaware of.
There are some other things that need to be finished up with regard to the Project Development Plan
Application which Mr. Gerrard has filed in addition to the issue of the right-of-way discussed above.
They are as follows:
1. There must be a drainage report prepared and, to the extent that there is a drainage
problem identified because of the increased runoff by reason of creation of an
impervious surface, there may be some detention needed.
2. The right-of-way granted to the City through the PDP process must be complete
enough so that the City has a right to install a water line approximately 100 feet to
the west of Timberline Road in order to reach the fire hydrant that is located there.
Incidentally, the pavement that Mr. Gerrard installed has covered over two valves
that serve that hydrant and that issue needs to be worked out between Mr. Gerrard
and the utilities so that they City has access to those valves.
City AM. ..ey
City of Fort Collins
December 20, 2002
Douglas D. Konkel
Attorney at Law
1405 S. College Ave.
Suite 1
Fort Collins, CO 80524
Re: Gerrard
Dear Doug:
As I told you over the phone the other day, the City staff was planning to meet today to discuss the
issue of the road that Gary Gerrard (the official name is Gerrard Family Limited Partnership, LLP)
desires to construct from Timberline Road westward to the back side of Gerrard's warehouse
property on Harmony Road. Not only does Gerrard desire to construct the road, it turns out that he
has. I know that we have been round and round about this issue for some time and at first Matt
Baker and I as well as the folks on your side thought we had a workable solution only to discover,
before we worked the details out, that the solution we were thinking about would not work because
of the zoning issues. As you know, there was some considerable neighborhood opposition which
even went through some mediation attempts with the City's neighborhood resources office. I think
we finally settled on a solution which would both comply with the Code and solve Gerrard's access
concerns with Mr. Gerrard planning to file an application for approval of a PDP so that the road
could be constructed and our law complied with and, to the extent possible, the neighbors satisfied.
In fact, the application was filed with the Planning Department but was incomplete. It is still
pending.
Then, on about the 12's of December, Gerrard simply constructed a road without having gone
through the City processes and without a permit.
As for me, I don't want the City to make a big criminal deal about all of this by writing a bunch of
misdemeanor tickets into Municipal Court. So I am urging the City staff to hold that remedy in
abeyance because it seems to me that this problem can be easily resolved and it seems silly that it
has not yet been resolved.
The other day when we spoke over the phone, you said that there was one single issue standing in
the way of a resolution. The single issue that you identified was that the City has received from Mr.
Gerrard an "easement" for the road but according to City practice, the City insists on receiving a
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