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WITWER, OLDENBURG, BARRY &JOHNSON, LLP
• ATTORNEYS AT LAW
B22-7TH STREET,SUITE 760
STOW L. WITWER.JR. GREELEY, CO 80631 JEFFREY T.6EDINGFIELD
OF COUNSEL
R. SAM OLDENBURG
JOHN J.BARRY A TELEPHONE: (970)352-3161
JACQUELINE JOHNSON ':Vold County Planning Department FACSIMILE(970)352-3185
PATRICK M.GROOM GREELEY OFFICE SENDER'S E-MAIL ADDRESS:
KEYNEN JAE WALL,JR.
KENT A. NAUGHTON FER 12 71108 Jbarry(a,WOBJLAW.com
Direct Line: 970.313-4774
RECEIVED
February 11,2008
EXHIBIT
Bruce Barker,Esquire
Weld County Attorney's Office
PO Box 758 1 (fl
Greeley,CO 80632
Re: Second Amended Avery Acres Planned Unit Development Application
Case No.AMPZ-516
Dear Bruce:
As you know, our office represents the five lot owners constituting the five residential lots in the Avery Acres Planned
Unit Development. I am writing in behalf of our clients and with respect to the Second Amended Avery Acres Planned
• Unit Development Application submitted by George Bollinger.
The homeowners who could attend the meeting with yourself and planning staff in January 2008 appreciated the
opportunity for that interchange. After our meeting I thought it important to provide you with additional information
concerning certain aspects of the transactions and the recorded documents.
The Avery Acres PUD was originally created by the application of John and Jim Sutter in the late 1990's. In April
2000 the Setters caused to be recorded Restrictive Covenants(Avery Acres)Planned Use Subdivision, a copy of which
I attach hereto. Those covenants affected the entire property which is now part of the Second Amended PUD
Application (i.e., the five residential lots and the Ag Outlot "A"). It is also my understanding that the Restrictive
Covenants (Avery Acres) Planned Use Subdivision is the instrument which was submitted to the Weld County
Planning Department in conjunction with the approval of the PUD application by John and Jim Sutter.
At or about the time of the recordation of those covenants in April 2000, the County approved the Avery Acres PUD
submitted by John and Jim Sutter. Shortly thereafter, the Sutters began to market and sell the five residential lots to
prospective homebuyers. I am informed that each of the parties who purchased the five residential lots was provided,
prior to such purchase, a copy of those restrictive covenants. It is important to note that those restrictive covenants
provide that there will be five residential lots and "an additional large agricultural Outlot." Those covenants go on to
state that the owner or operator of the Agricultural Outlot "A" shall have unlimited access to Avery Drive "for
agricultural related activities." Further, the covenants are to remain in force"in perpetuity." Presumably this is one of
the bases upon which the County agreed to approve the PUD as submitted by John and Jim Sutter.
Unbenounced to the prospective homebuyers (each of them having been given a copy of the above referenced
Restrictive Covenants) the Sutters recorded on July 20, 2000 a Declaration of Covenants, Conditions and Restrictions
for Avery Acres PUD in excess of 30 pages. The Declaration of Covenants provides that it is to replace the earlier
recorded covenants and, oddly, provides on page 33 that Outlot"A" shall have all of the benefits contained in such
• Covenants, Conditions and Restrictions, but that Outlot"A" shall have none of the burdens, obligations or
responsibilities created by those covenants. Those Covenants do not provide, however, that the owners of Outlot"A"
may make any use of Avery Acres Drive other than for agricultural purposes. Thus, I believe it is apparent that the
2008-1203
• •
WITWER, OLDENBURG, BARRY &JOHNSON, LLP
Bruce Barker,Esquire II
11, 2008 Page 2
owner of Outlot"A" does not have any ability to expand the use of Avery Drive beyond the sole use for agricultural
purposes.
I realize that Mr. Bollinger was not the party who represented to the prospective homebuyers that they were subject to
covenants, which were subsequently amended without their knowledge and shortly before their purchase of their
properties. However, I believe it is important to note that the County's resolutions as well as the PUD plat itself(which
was recorded affecting Avery Acres) made it clear that no residential development of Outlot"A" could occur. The
County Resolution Granting Site Specific Development required at Paragraph 2(A)that the plat shall contain notes that
the Ag lot shall contain a description that no residential structures shall be allowed. Thus, Mr. Bollinger was clearly
charged with knowledge of the restrictive language in the notes which were required set forth on the Avery Acres PUD
Final Plat which was recorded a number of years prior to his purchase of the Outlot"A".
In addition, a review of the County's records with regard to this property would reflect that the resolution adopted by
the County on December 16, 1998 would reflect at paragraph 2(b)of the resolution the following language:
The agricultural lot shall be labeled "Non buildable agricultural Outlot." Development on the
agricultural Outlot shall be limited to structures related to the agricultural use. No residential
structures shall be allowed.
I believe it must be admitted, then, that the clear intent of John and Jim Sutter at the time of their application for the
PUD to the County, and obviously the County's knowledge of the intent and information made available to the County
at the time of its approval of the PUD, was that the agricultural Outlot would remain agricultural, and would not be
subdivided or otherwise allow residential construction. ,
In short, I believe that the actions of John and Jim Sutter in selling lots to the five homeowners purchasing the five
residential lots governed by the PUD make it clear that changing the use of the agricultural Outlot to residential use
would be contrary to the representations made. In deed, a number of the home owners have indicated to me that they
believe they paid a premium to the Sutters for their lots because of the knowledge the Outlot would never be built upon.
Additionally, it must be acknowledged that Mr. Bollinger is charged with knowledge of the existence of the restrictions
against use of the agricultural Outlot for anything other than agricultural purposes,because such was clearly evident on
the Final Plat recorded in 2000.
I, as well as the residential lot owners, would be glad to meet with you and representatives of the Weld County
Planning Department at any time in order to discuss this matter further. I appreciate your time in reviewing this
correspondence, and I welcome any questions which you may have with regard to this.
Yours very truly,
E URG,
y JO ESO LLP
/( /
Jo . Barry '
JJB:mmv
Enclosures
CC: Avery Acres Homeowners
Weld County Department of Planning Services
North Office
MEMORANDUM
. TO: Planning Commissioners
COLORADO DATE: March 4, 2008 ny'�
FROM: Chris Gathman— Planner II
L 5J.
SUBJECT: Proposed Amendments to Staff Recommendation
The Departments of Planning Services and Public Works are recommending the
following conditions of approval be added to AMPZ-516:
1. Add as condition 1.B (page 4) and re-letter subsequent conditions:
The applicant shall submit written evidence from the Galeton Fire Protection District
that they have reviewed and approved the proposed 30-foot emergency only access
connecting Avery Drive and the proposed access and cul-de-sac for Lots 6 and 7.
2. Add as conditions 1.8.5 and 1.B.6 (page 5):
The applicant shall show a 65'diameter radius right of way cul-de-sac between the
lot lines of lots 6 and 7. An additional 30-foot access shall connect to the south side
of this cul-de-sac parallel to the west side of lot 6 and lot 1 of Avery Acres connecting
the cul-de-sac of Avery Acres Drive. This portion of the 30-foot right of way shall be
designated as for emergency access only. A knock box approved by the local Fire
• District, Galeton Fire District shall be placed at both ends of this emergency access
road.
A roadway cross-section shall be indicated. All the above roadway improvements
shall be improved with 6 inches of road base and 4 inches of gravel surface or per a
Geotechnical Report stamped with an Engineer's stamp, registered and able to
practice within the State of Colorado, reviewed and accepted by the Public Works
Department.
• EXHIBIT
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