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Home My WebLink About980763.tiff ISAACSON, ROSENBAUM, WOODS & LEVY, P.C. ATTORNEYS 6L COUNSELORS AT LAW SUITE 2200 633 . 17TH STREET STANTON D.ROSENBAUM MARK G.GRUESKIN JOHN A.CHANIN DENVER, COLORADO 80202.3622 GARY A.WOODS GARY A.KLEIMAN LILA L.SEAL SAMUEL L.LEVY JULI E.LAPIN BLAIN D.MYHRE TELEPHONE STEVEN G.WRIGHT FREDERICK B.SKILLERN SEAN F.MOIUARTY (303) 292-5656 RICHARD D.GREENGARD JOHN VOORHEES STEPHANIE 1.Y.O'O'MALLEY EDWARD T.RAMEY TERESA N.ENGLAND STEVEN M.WEISER WILLIAM M.SILBERSTEIN JON R.TANDLER PAULA J.WILLIAMS TELECOPY LAWRENCE J.DONOVAN,JR. RICHARD K.KORNFELD PAMELA A.JOHNSON GARY LOZOW JAMES P.SHIPMAN MELISSA K.THOMPSON (301) 292.3]52 SANDY GAIL NYHOLM DAVID L.KUOSMAN LAWRENCE R.KUETER DAVID F.GOOSSEN LOUIS G. N D9(0.799B JONATHAN H.STEELER PATRICIA HILL KELLEY CHARLES ROSENBAUM(1901.1971) SHELDON E.FRIEDMAN THERESA L CORRADA SAMUEL M.GOLDBERG 09034974) Sender's Internet E-mail Address RICHARD L.NATHAN JOHN G.SPIECLEMAN JOSEPH I.STOLLAR 094619&) lkueter@irwl.com January 16, 1998 Lee Morrison, Esq. Assistant County Attorney 915 10th Street Weld Conn 'l ;r1 Dept. P.O. Box 1948 Greeley, CO 80632 JAN 2 1 1998 Re: Del Camino East RECEIVED Dear Mr. Morrison: Our office represents the owner of the proposed Del Camino East project in Weld County. The purpose of this letter is to make clear our position regarding the Interim Coordinated Planning Agreement (the "Interim Agreement"), between Weld County, Dacono, Firestone and Frederick, as it affects Del Camino East and the Site Specific Development Plan and Planned Unit Development Final Plan currently scheduled before the Board of County Commissioners for February 11, 1998. As I believe you are aware, the northern 80 acres of the property north of Weld County Road 22, are located within the Firestone Urban Growth Boundary. The southern 155 acres of the property, south of Weld County Road 22, are located within the Urban Growth Boundary of both Firestone and Frederick. A review of the Interim Agreement reveals several important provisions as follows: 1. Section 3.3 provides that the Southern Weld Area Land Use Plan would be adopted within 12 months of the Agreement, which would have been by December 10, 1997. It is our understanding that this has not occurred. 2. Section 5.1 of the Agreement obligates each municipality to give serious consideration to annexation petitions, but such annexations can be rejected for good cause. g EXHIBIT 980763 ISAACSON, ROSENBAUM, WOODS & LEVY, P.C. Lee Morrison, Esq. January 16, 1998 Page 2 3. Section 4.3(b) provides that Weld County should require that there be an executed annexation agreement between an applicant and the municipality as a condition of approval of any Planned Unit Development. 4. Because the zoning for this property was approved by Weld County prior to the March 24, 1997 approval of the Interim Agreement, we believe the Interim Agreement may not be applicable to this property. Reconciling these various provisions is not easy. On the one hand the County seems obligated to condition approvals upon annexation, while the municipalities clearly are not under a legal obligation to annex every property. Giving meaning to all of these provisions can be accomplished by conditioning a Planned Unit Development approval upon an annexation agreement where the municipality and the landowner come to agreement regarding an annexation agreement. Such a condition we believe would satisfy Section 4.3(b), and be consistent with the municipality's lack of obligation to annex any land within the Urban Growth Boundary. Complicating this matter for Del Camino East is that the southern portion is located within the Urban Growth Boundary of both Frederick and Firestone. Each jurisdiction has threatened legal action if that property is annexed to the other. Obviously that puts the landowner in an untenable position as a result. In addition to this issue, we would object to any requirement that Del Camino East be split between two different jurisdictions. The complications for provision of services, zoning, and other matters would be substantial. All of this relates to the administrative recommendation of the Weld County Department of Planning Services, and in particular, to item 1(f) of the Staff Recommended Conditions for the PUD Final Plan. That provides that an "executed annexation agreement" be submitted as a condition of recording the PUD Final Plan. For the reasons expressed above, we believe that is an impossible condition given the disagreement among the municipal parties involved. The Planning Commission recommended approval of this matter with the condition that provided that "when applicable, the applicant shall be in compliance with the Intergovernmental Agreements with the Towns of Frederick and Firestone, Ordinance 195, Section 4.3(b), and submit an executed annexation agreement with the Towns to the Department of Planning Services." A condition of approval along these lines is acceptable if it is subject to annexing to a single jurisdiction, and subject to a reasonable annexation agreement. Any reasonable annexation agreement will have to address the following issues: .0°0163 ISAACSON, ROSENBAUM, WOODS & LEVY, P.C. Lee Morrison, Esq. January 16, 1998 Page 3 1. That comparable zoning is permitted and approved by the municipality as has been approved by Weld County. 2. That the annexor has the ability to create special districts for the purpose of construction of infrastructure, subject only to reasonable municipal conditions. 3. That a guarantee of services exists within the municipality comparable to what will be available within the County. This is of particular concern because we have been informed that a growth limit on utilities exists within the municipalities, a growth limit that does not exist within the unincorporated areas of Weld County. 4. A vesting provision that vests the right of the landowner to develop the property in accordance with the zoning. We are willing to cooperate in annexing to a single jurisdiction subject to a reasonable annexation agreement. However, given the lack of obligation to annex by any of the municipalities pursuant to the Interim Agreement, and given their current dispute as to a portion of this property, it is unreasonable to require an executed annexation agreement as a condition of recording of the PUD Final Plan. We will accept a condition on the PUD Final Plan that obligates us to continue to pursue the annexation subject to the resolution of the matters discussed above and subject to a mutually agreeable annexation agreement. Very truly ours, Lawrence R. Kueter LRK/skv167354 cc: Rusty Green Shani L. Eastin, Current Planner `/ Sandy G. Nyholm, Esq. Barbara Brunk Del Camino Parkway south of Weld County Road No. 22 shall not be dedicated by this Plat, but shall be dedicated by a replat prior to the approval of any development or final plats for Blocks 7, 8, 9 and 10. If Del Camino Parkway is not intended to extend south into the Town of Frederick, then the replat shall consist of a loop road and/or cul-de-sac in compliance with County requirements. If Del Camino Parkway is intended to extend south into the Town of Frederick as an arterial roadway, the dedication on the replat shall consist of a 110 foot right-of-way in the location shown. If Del Camino Parkway is intended to extend south into the Town of Frederick as a local street, the replat shall dedicate an 80 foot right-of-way generally in the location shown. The Owner, unless otherwise consented to by the County, shall not submit such a replat prier-te-May-1-5,-1-998. After May 15, 1008 or development request prior to receipt of a bona fide offer of purchase for some or all of Blocks 7, 8, 9 and 10. After receipt of a bona fide offer of purchase for some or all of Blocks 7, 8, 9 and 10, if the County does not know which of the three alternatives is intended to occur as a result of discussions with the Town of Frederick, Owner shall be entitled to replat the road as a loop road and/or cul-de-sac in accordance with County requirements. EXHIBIT I -- 0163 EXHIBIT Firestone G A Community mow.. In Motion \I90R Weld County Board of Commissioners 915 10th Street Greeley, CO 80632 RE: Case S-439 Del Camino East Site Specific Development Plan and Planned Unit Development Final Plan Ladies and Gentlemen: In reference to the above noted Case, the Town of Firestone formally objects to the approval of this case for numerous reasons. The key reasons are summarized below: 1. The portions of Del Camino East north of Road 22 do not have an executed Annexation Agreement with the Town of Firestone. It is our position that any favorable approval by the Board of County Commissioners (BCC) to approve and effect this proposal without an executed agreement in place would be a violation of the Interim Planning Agreement between Firestone and the Weld County. 2. The Staff recommendation for Planning Commission's recommended approval did not consider that the Road 22 is within Firestone. Access to Road 22 as it bisects Del Camino East is controlled by Firestone and no application has been submitted to the Town by Del Camino East. The application appears to show seven access points onto Road 22. Firestone will require an access permit and it will require a Development and Maintenance agreement with Del Camino East regarding Town roadways. If the BCC approves this Application, such action could increase the potential that the Town would have to deal with numerous landowners requesting numerous access permits. Favorable BCC action on this Application could potentially create lots that, due to transportation design issues, may not be able to receive access from the Town. Such action by the BCC would not be consistent with good planning practices. At a minimum, conditions of approval must recognize that Road 22 is a Town Street for which access permits and an improvement and maintenance agreement is required. All interested parties should develop a coordinated access plan prior to any action by the BCC. 150 Buchanan P.O. Box 100 Firestone, Colorado 80520 (303) 833-3291 Fax (303) 833-4863 Asa Weld County Commissioners February 11, 1998 Page 2 3. It appears from reviewing the application materials, the referral documents sent to the Firestone, and the illustrative map presented by the Applicant to the County Planning Commission that land use and associated intensity is also a component of this Site Specific Development and Planned Unit Development Final Plan. We would suggest that land use and intensity are critical to any potential access permit review by Firestone and we would presume by the Colorado Department of Transportation. Again, we do not believe that the BCC should take the requested action until after all access impacts are discussed by all interested parties. Additionally, we believe the uses identified in the application are inconsistent with the MUD Development Standards (Ord. 191), as RV Park and Storage are not a listed use in the Employment Area designation. Please consider this letter, the detailed letter submitted by our legal counsel on the intergovernmental agreement and road issues, and other information that we may provide at the Public Hearing on this matter, and deny this application until all provisions of our Smart Growth Award winning Intergovernmental Agreement are complied with, that access issues are resolved, and that land uses and intensities are consistent with the MUD Development Standards. Sincerely, yeax- Rick Patterson Mayor cc: Monica Daniels-Mika Bruce Barker, Esq. x""0763 EXHIBIT H GRIFFITHS, TANOUE & LIGHT, P.C. ATTORNEYS AT LAW BLAKE STREET TERRACE TEL. (303)298-1601 1860 BLAKE STREET, SUITE 550 FAX (303)298-1627 DENVER,COLORADO 80202 February 10, 1998 E-MAIL grifftan(a�sn.corn Weld County Board of Commissioners 915 10th Street Greeley, CO 80632 Re: Proposed Site Specific Development Plan and Planned Unit Development Final Plan for Del Camino East (Case No. S-439) Dear Commissioners : On behalf of the Town of Firestone, I am writing to discuss some of its legal concerns with regard to the above-referenced proposal for Del Camino East . I ask that this letter be made a part of the record for the February 11, 1998, public hearing on this proposal . The Town' s primary legal concerns relate to the applicability of Interim Coordinated Planning Agreement (the "IGA") , and access from this proposed development onto Road 22 . I will discuss these issues in turn. Applicability of the IGA Summary: The Town' s position is that this proposal is subject to the IGA. Therefore, there must be in place an executed annexation agreement between the applicant and the Town for at least that property north of Road 22 . The Town requests that the application be denied because no executed agreement is in place or, alternatively, that the Board amend the Planning Commission' s recommended condition of approval 2 (m) to read as follows : "In compliance with the Interim Coordinated Planning Agreement, Ordinance No. 195, executed annexation agreement (s) shall be submitted to the Department of Planning Services . " If this condition is imposed, the Town further requests that it be met prior to recording of the PUD Final Plan. Discussion: Section 4 .3 (b) of the IGA states that [A] s a condition of approval of any rezoning, planned unit development, subdivision, or use by special review for any commercial or industrial use pursuant to [provisions not applicable here] , the COUNTY shall require that there be executed annexation agreement between the applicant and the MUNICIPALITY which requires the owners to annex the property to the MUNICIPALITY upon the terms and conditions and within the time stated in the agreement . ?< 0163 GRIFFITHS, TANOUE & LIGHT, P.C. Weld County Board of Commissioners February 10, 1998 Page 2 Section 4 .3 (b) applies to this proposal because the applicant is seeking your approval of subdivision and PUD actions . (In fact, the applicant is seeking to create nine lots of less than 35 acres each and to create, without Town approval, a new right-of-way that includes a portion of Road 22 , a Town street) . The County agreed to require executed annexation agreements because an "essential purpose" of the IGA "is to ensure" that urban development will occur only within a municipality, or within areas eligible for annexation to a municipality. The IGA was adopted by the County effective March 31, 1997, and therefore was in place well before this application was submitted. By its reference in the past tense to an "executed" agreement, the IGA requires the condition of approval be met prior to recording of the PUD final plan. Otherwise, the County approval would take effect without any assurances as to the timing or terms upon which the area slated for urban development would be municipalized. Further, the County, rather than a municipality, would manage the urban development, and ownership could fragment before annexation-- which could lead to even more checkerboard annexation. The Town recognizes that the applicant is free to negotiate the terms of annexation. The Town also recognizes that the north portion of this project is in Firestone' s Urban Growth Area, while the south portion is in the Urban Growth Areas for Firestone and Frederick. However, this circumstance poses no greater risk than that faced by any landowner choosing to annex to one municipality over another. Under the annexation statutes, that risk is that a disappointed municipality within one mile may challenge the annexation. This risk exists irrespective of the IGA, and is no reason to waive or defer the requirements of the IGA. Only the Town of Firestone Urban Growth Area encompasses all of the Del Camino East property. Also, the property is bisected by Road 22 . Firestone remains willing to negotiate a reasonable annexation agreement, and firmly believes that under the IGA the County cannot approve this proposal until such an agreement is in place . Therefore, the Town requests you either deny the proposal or impose a condition as suggested in above summary statement . Access to Road 22 Summary: That portion of Road 22 adjoining the Del Camino East property is a Town street, and access onto Road 22 must comply with the Town Access Code. Further, the road must be improved to Town standards. Therefore, the Town requests that the application be denied until these matters are addressed or, alternatively, that the Board amend the Planning Commission' s recommended condition of approval 2 (k) to read as follows : 04'9"763 GRIFFITHS, TANOUE & LIGHT, P.C. Weld County Board of Commissioners February 10, 1998 Page 3 A road improvements and maintenance agreement, which includes provisions regarding collateral, shall be submitted for the PUD for future filings . The Town of Firestone shall be a party to such agreement with respect to roads under the Town' s jurisdiction. All access onto and improvement of roads under the jurisdiction of the Town of Firestone shall comply with Town of Firestone ordinances, rules, regulations and permit requirements . Discussion: Firestone in the Spring of 1997 annexed Road 22 between Weld County Road 15 and Interstate 25 . This road bisects the Del Camino East property and was annexed pursuant to voluntary petitions from the County. In fact, the owner of Del Camino East reimbursed the Town for costs related to this annexation. As permitted under state law, Firestone on May 2, 1997, enacted Ordinance No. 351 which adopted by reference the State Highway Access Code for application to Town roads and streets . The Town will require that any party seeking access onto a Town road or street comply with the Town Access Code. The Town will also require improvements to Town roads in a manner consistent with the Town Access Code and other Town standards . Given that Road 22 is a Firestone road, the Town must be a party to any discussions concerning access onto and maintenance and improvement of Town streets . The proposal should therefore be denied until such time as these discussions occur and there is in place an agreed upon access plan, improvement and maintenance agreement, and process for issuance of access permits . At a minimum, we believe that the Board must add conditions of approval regarding these road and access issues . Thank you for the opportunity to comment on this matter. Sincerely, GRIF THS, TANOUE & LIGHT, P.C. By: S muel J. Li t SJL: \ cc : Mayor and Trustees, Town of Firestone Bruce Nickerson, Firestone Town Planner Bruce T. Barker, Esq. , Weld County Attorney 021095/1911[sjl]c:Fireeton\Annexi.ltr Firestone A Community In Motion Vicki Cu F,,, Mann,n „f ., a.t,i)l. December 8, 1997 el h' DEC 1 8 1997 CERTIFIED - RETURN RECEIPT AVM Monica Daniels-Mika Weld County Department of Planning Services 1400 N. 17th Avenue Greeley, CO 80631 REF: Del Camino East Subdivision and Planned unit Development (County Case No. S-439) Dear Monica: Based on a December 3, 1997 article in the Longmont Daily Times Call, we noticed that the above referenced application was recommended by the Weld County Planning Commission to be approved by the Weld County Commissioners. Relative to the Planning Commission's action would you please provide us with the following five items of information: 1. A copy of the Staff Report and a list of recommended conditions, if any, and copies of any County or other documents outside of the Staff Report addressing potential annexation of this property to a municipality. 2. A copy of the Planning Commission's Resolution recommending approval. 3. The date and time the application will be heard by the Board of County Commissioners. 4. Correspondence to or from the County and the Applicant regarding annexation. 150 Buchanan P.O. Box 100 Firestone, Colorado 80520 _" EXHIBIT (303) 833-3291 Fax (303) 833-4863 s Monica Daniels-Mika December 8, 1997 Page 2 5. A certified copy of the County Resolution approving the Interim Coordinated Planning Agreement between Weld County and Firestone (IGA) and authorizing the execution. As you will recall, there was a meeting on November 4, 1997 which included Bruce Barker, Lee Morrison, Kerri Keithly and Sam Light, in addition to you and me. The purpose of the meeting was to discuss provisions of the IGA and specifically various development applications to Weld County, including the Del Camino East Subdivision and PUD application. At the end of the meeting, you concluded by stating the Weld County staff would provide Firestone staff with the County staffs interpretation of the IGA, with specific regard to Section 4.3 (b), which deals with an annexation agreement being required with the Municipality (Firestone) prior to any planned unit development or subdivision approval by the Weld County Commissioners. In addition to the information noted above, would you please provide us with a written statement of the County staffs position on this matter, with respect to the general scope of Section 4.3 (b) and its specific application to the Del Camino East proposal. To date, Firestone does not have an annexation agreement with the developer of Del Camino East. As we have stated in numerous correspondence to Weld County, including the attached letter to Shani Eastin dated July 17, 1997, the Town of Firestone believes that those portions of the Del Camino East Subdivision within the Firestone Urban Growth Boundary must have an executed annexation agreement with Firestone, as required by the IGA, as a condition of any County approval. In such an annexation agreement, Firestone could address land use matters relative to access for any proposed development and subdivision of the property. As you know, Road 22, from which Del Camino East apparently intends to obtain significant access, has been previously annexed to Firestone with the express approval of the County. Access to this roadway is controlled by Firestone. No additional access will be approved to this roadway without an access permit approved by the Firestone Board. It has been our intent to address such access permit in the noted annexation agreement, and through the Town's Access Code permitting process. Please provide us with the requested information as soon as possible. Such information is critically important in order for Town staff to provide the Firestone Board with a comprehensive review of the status of the Del Camino East Subdivision application in Weld County. Monica Daniels-Mika December 8, 1997 Page 3 As you know, the IGA received a "Smart Growth" award from the Governor's office, which is one of the many reasons the Firestone Board has directed Town staff to work diligently to assure compliance with the goals, objective and specifics of the IGA. We appreciate your support and cooperation in working with us to that end. Sincerely, Bruce Nickerson Firestone Planner attachment cc: Rick Patterson, Mayor Firestone Town Board Trudy Peterson Sam Light, Esq. Bruce Barker, Esq. Lee Morrison, Esq. Benjamin Green SS'0763 „ Firestone FILE COPY ti r-kt A Community As In Motion July 17, 1997 Ms. Shard Eastin Weld County Department of Planning Services 1400 N. 17th Avenue Greeley, Colorado 80631 Dear Shani: This letter is to confirm our conversation yesterday regarding provisions of the Intergovernmental Agreement between Weld County and the Town of Firestone, et al ("IGA"). Specifically, I wanted to address our discussion regarding the matter of the Rusty Green development (a.k.a. Del Camino East). Regarding these matters, I would offer the following comments: • Section 4.3 (b) of the IGA is clear that Rusty Green's project (or other rezonings, planned unit developments, subdivisions, etc.) shall be required by the County to have an annexation agreement for the project executed with the "Municipality". • Rusty Green's project is within Firestone's Urban Growth Boundary north of WCR 22 and in both Firestone's and Frederick's Urban Growth Boundary south of WCR 22. Therefore, prior to any County approval, Rusty Green's project (subdivision, etc.) should be required to have an executed annexation agreement with Firestone for the property north of WCR 22 and either Firestone or Frederick for the property south of WCR 22. In fact, the County expressly agrees that its approvals will not take effect without such an agreement in place as a condition of approval. 150 Buchanan P.O. Box 100 Firestone, Colorado 80520 (303) 833-3291 Fax (303) 833-4863 ?'?.07,63 Ms. Shani Eastin July 17, 1997 Page 2 • The annexation agreement requirement, as specified in Section 4.3 (b) of the IGA, in not limited by the "stage" of processing of an application. In the case of Rusty Green's development we understand he has not even submitted a subdivision application to the County for processing. With "subdivision" being specifically listed in the IGA as triggering the noted annexation agreement requirement. As the County previously indicated in its referral comments (6/2/97) relative to the former Tarantino/Seewald annexation petition to Firestone, timing of the submittal of an application is not necessarily relevant to the "intent and spirit" and conditions of the IGA. • Based on the language of Section 4.3 (b) of the IGA we will also be requiring the contemplated annexation agreement relative to any other rezonings, planned unit developments, subdivisions, etc. that process in Weld County within the Firestone Urban Growth Boundary. As the agreement is between the Municipality and the landowner, the Municipality should, in conjunction with the landowner, be responsible for the content of the agreement. For your reference, I have discussed these comments with Sam Light, Town Counsel and the Rick Patterson, Mayor of Firestone to be sure I had their input on these matters. I will further discuss the contents of this letter with the Town Board at their July 24, 1997 meeting and inform you of any additional comments they or the Town staff may have. Please contact me if you have any questions or comments on this matter. Sincerely, Bruce Nickerson Planner cc: Firestone Town Board Sam Light, Esq. Bruce Barker, Esq. Lee Morrison, Esq. Monica Daniels-Mika .?(7. 0' 63 Hello