HomeMy WebLinkAbout20171374.tiffWELD COUNTY ATTORNEY'S OFFICE
PHONE: (970) 336-7235
FAX: (970) 352-0242
1150 'O' STREET
GREELEY, COLORADO 80632
April 18, 2017
Mark Williams
Vice President
Highland Farms Homeowners' Association
1250 Highland Place
Erie, CO 80516
RE: Responsibility to maintain internal subdivision roads within Highland Farms PUD
Mr. Williams:
We received your letter dated March 24, 2017 regarding the maintenance of the internal
subdivision roads for the Highland Farms Planned Unit Development. After review of Mr.
Bulthaup's recent letter, the PUD Final Plat (August 2005), the Improvements Agreement (August
2005), Resolution 2006-0812 (March 2006 — Partial Release of Collateral), Resolution 2006-3163
(November 2006 — Full Release of Collateral), and the Amended Final Plat (October 2010), the
County has determined that it is not responsible for maintenance of the internal streets within the
Highland Farms PUD.
Both the original PUD Final Plat and the Amended Final Plat include language that the HOA is
responsible for the maintenance of the streets. The language you site in the 2005 Improvements
agreement, specifically section 6.0 "Acceptance of Streets for Maintenance by County" does not
obligate the County to maintain the road. That section clearly states that "streets... may be
accepted by the county". However, it does not appear that the County ever accepted these streets.
You reference the letter dated February 7, 2006 in which you request that the Board both release
the collateral, and accept the streets for partial maintenance. However, Resolution 2006-0812 does
not include any language accepting the roads for maintenance. This resolution serves only to
release the collateral, and does not provide additional authority. On October 11, 2006, a letter was
sent to the Board requesting release of the remaining collateral. On November 15, the Board
approved Resolution 2006-3163 releasing the collateral. This resolution contains no language
referencing acceptance of the streets and does not provide any such authority.
The fact that the developer requested that the County accept maintenance of the streets does not
indicate that the County ever actually accepted the maintenance. In order to demonstrate such
acceptance, you would need to provide a Resolution from the Board that expressly accepts
maintenance. Here, such a resolution does not exist. Further, such Resolution would run contrary
to the express language of the Plat, which clearly indicates that the streets are to be maintained by
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the HOA.
Weld County is not responsible for maintenance of the internal streets within the Highland Farms
PUD. Should you wish to petition the County to accept maintenance of the road, you would need
to comply with the provisions of Section 8-6-150 of the Weld County Code, as well as the executed
Improvements Agreement.
Please feel free to contact me with any questions or comments you may have.
Respectfully,
Bob Choate
Assistant Weld County Attorney
bchoate@weldgov.com
cc: Jay McDonald, Director, Weld County Public Works
March 24, 2017
Jay McDonald
Public Works Director
Weld County, Colorado
PO Box 758,
Greeley, CO 80632
Dear Mr. McDonald:
Highland Farms Homeowners' Association, Inc.
1250 Highland Place
Erie, CO 80516
RECEIVED
APR 2 4 2017
WELD COUNTY
COMMISSIONERS
Over the last few months' officers of the I-Eghland Farms Homeowners Association have
contacted your office concerning the maintenance of the streets in our subdivision.
The original developer and his attorneys have taken the time to review the subdivision
improvement agreement and other documents, and have concluded that Weld County is
responsible for the maintenance.
I believe that the Public Works staff came to the conclusion that the streets would not be
maintained after only considering standard text in the plat print. They were not aware of the
Weld County's responsibility for maintenance as specified in the improvement agreement.
Please refer to the included explication provided by the original developer, Robert Bulthaup,
and reviewed by attorney Cameron Grant.
We hope the misunderstanding can be corrected and street maintenance will resume.
Sincerely,
Mark Williams
Vice President
Highland Farms Homeowners' Association, Inc.
cc: Barbara Kirkmeyer
Mark Williams
E-mail: mwilliams@markwilliams.com
Cell: (303) 204-0700
765 South Fierce Avenue • Louisville, CO 80027
303-665-6901 • 800-525-1963 • FAX 303-665-7021
www.markwilliams.corn
To whom it may concern:
I am Robert Bulthaup. I was the manager of Highland Acquisition Group, LLC (HAG). HAG was the
developer of Highland Farms PUD (PUD). It has come to my attention that Weld County has recently
indicated to the Highland Farms Homeowners Association (HOA) that the County is not responsible for
maintaining the streets Highland Way and Highland Place within the PUD. They cite the wording in note
J to the amended final plat AMPF #1045 which was recorded October 13, 2010 as their support for this
position. This is not correct.
• History - PUD
The original PUD was approved in August, 2005, with a final plat PF #1045 signed by Monica Daniels -
Mika. The original PUD contained the following note —
11) A HOMEOWNERS ASSOCIATION SHALL BE ESTABLISHED PRIOR TO THE SALE OF ANY LOT.
MEMBERSHIP IN THE ASSOCIATION IS MANDATORY FOR EACH PARCEL OWNER. THE ASSOCIATION IS
RESPONSIBLE FOR LIABILITY INSURANCE, TAXES AND THE MAINTENANCE OF OPEN SPACE, STREETS,
PRIVATE UTILITIES AND OTHER FACILITIES ALONG WITH THE ENFORCEMENT OF COVENANTS.
(DEPARTMENT OF PLANNING SERVICES)
The HOA was formed and on August 8, 2005 the Highland Farms Subdivision Declaration of Covenants,
Conditions and Restriction were filed.
• History — Improvements Agreement (Public Road Maintenance)
On August 15, 2005 the County, through the Board of County Commissioners approved an
"Improvements Agreement According to Policy Regarding Collateral for Improvements (Public Road
Maintenance)". Included in this agreement is the following section -
6.0 Acceptance of Streets for Maintenance by the County: Upon compliance with the following
procedures by the Applicant, streets within a Subdivision or Planned Unit Development may be accepted
by the County as a part of the County road system and will be maintained and repaired by the County.
6.1 If desired by the County, portions of street improvements may be placed in service when
completed according to the schedule shown on Exhibit "B," but such use and operation shall not
constitute an acceptance of said portions.
6.2 County may, at its option, issue building permits for construction on lots for which street
improvements detailed herein have been started but not completed as shown on Exhibit "B,"
and may continue to issue building permits so long as the progress of work on the Subdivision or
Planned Unit Development improvements in that phase of the development are satisfactory to
the County; and all terms of this Agreement have been faithfully kept by Applicant.
6.3 Upon completion of the construction of streets within a Subdivision or Planned Unit
Development and the filing of a Statement of Substantial Compliance, the applicant(s) may
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request in writing that the County Engineer inspect the streets and recommend that the Board
of County Commissioners accept them for partial maintenance by the County. Partial
maintenance consists of all maintenance except for actual repair of streets, curbs and gutters,
and related street improvements. Not sooner than nine months after acceptance for partial
maintenance of streets, the County Engineer shall, upon request by the applicant, inspect the
subject streets, and notify the applicant(s) of any deficiencies. The County Engineer shall re-
inspect the streets after notification from the applicant(s) that any deficiencies have been
corrected. If the County Engineer finds that the streets are constructed according to County
standards, he shall recommend acceptance of the streets for full maintenance. Upon a receipt of
a positive unqualified recommendation from the County Engineer for acceptance of streets
within the development, the Board of County Commissioners shall accept said streets as public
facilities and County property, and shall be responsible for the full maintenance of said streets
including repair.
The Agreement provided that collateral in the amount of $362,426.55 be accepted as collateral for the
completion of the items listed in Exhibit A of the agreement, which included the construction of the
streets Highland Place and Highland Way.
Construction of the PUD was competed in January, 2006. On February 7, 2006 I sent a letter to the
Board of County Commissioners which included a Statement of Substantial Compliance. Among other
things the letter states that as -built plans have been submitted to Weld County Public Works care of Mr.
Peter Schei. It then states that "a recommendation of acceptance of the streets for partial maintenance
by the County is requested". In addition, additional funds of $13,681.95 were provided as "Warranty
Collateral" for the road improvements. It the states that "Upon completion of the requirements of
Section 6.3 of the agreement relating to unqualified acceptance , the "Warranty Collateral" will be
released."
On February 27, 2006 Peter Schei, P.E. with Public Works in a memorandum to the Planning Department
indicated they had inspected the infrastructure and recommended release of collateral, except for a
portion that will be withheld "for minor pavement repairs".
On March 15, 2006 the Board of County Commissioners approved a resolution that stated "Public Works
has conducted a visual inspection and recommends partial release of said collateral". The Board
approved the partial release of the collateral.
On May 16, 2006 the Board of County Commissioners approved an additional partial cancellation and
release of collateral.
On October 11, 2006 in a letter to Peter Schei, with a copy to the Donna Bechler, Clerk to the Board I
requested "final Release of Collateral per Section 6.3 of our Improvements Agreement for Highland
Farms". I also "request that Public Works recommend acceptance of the improvements and release of
the collateral funds."
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On November 8, 2006 in a memorandum from Peter Schei to Ester Gesick, Clerk to the Board Mr. Schei
indicated "The Clerk may schedule the release of warranty collateral with the Board of County
Commissioners with no concerns from Public Works."
On November 15, 2006, the Board of County Commissioners approved a resolution which stated "staff
from the Weld County Department of Public Works has conducted a visual inspection and recommend
the release of the remaining collateral..." and the Board issued a check for the final release of the
warranty capital.
No further action on this topic was anticipated.
• Amended PUD
In 2007 I sold the Agricultural outlot A of Highland to Mr. Greg Balmes. The original PUD provided that
this outlot would not be available for construction of a residence. In 2010 Mr. Balmes approached the
County about changing the zoning on this lot so that he could construct a residence. The County agreed
that he could do so. In addition, for consideration to the HOA, Mr. Balmes also provided some additional
open space to the HOA. The County required as part of the process that he file an Amended final plat for
Highland Farms to vacate the outlot from the PUD and add the new open space lot.
On August 28,2010 the Board of County Commissioners approved a resolution that "..Amend Planned
Unit Development Final Plan, AmPF #1045, to Vacate Outlot A and add one (1) Common Open Space
Outlot to the Highland Farms PUD.." This resolution was approved by the Board of County
Commissioners.
On October 13, 2010 an Amended Final Plat was prepared that I signed for the HOA. My signature was
required since we were removing the Vacated Outlot and adding the additional common open space
outlot.
For consistency with the original plat, wording from the original plat was included in the amended plat.
This included note 11) from the original plat, which was reproduced as note J) in the amended plat.
Clearly, this was done simply for consistency with the original plat since all of the provisions of the
original note 11) had been complied with in 2005/2006 and the street maintenance was subsequently
transferred to the County via the Improvements Agreement in 2006. NOTHING in the amended plat
created any new streets or other construction that required collateral for construction. The amended
final plat (per the County resolution) simply vacated the original outlot and added an open space lot.
• Events subsequent
At some point in 2016 Mr. Chris Crotzer with the HOA contacted Weld County (I am not aware of the
purpose of the conversation). Mr. Chris Crotzer provided me with a copy of an email from Jay McDonald
with the County that stated —
"...on August 25th, 2010, an amended plat was submitted and accepted by the Board of County
Commissioners...On the plat itself and on page 6 of the resolution, paragraph J. states that the
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Homeowners' Association is responsible for maintenance of streets in the Subdivision. Subsequent to
the Board action, both Highland Place and Highland Way were removed from our road maintenance
system."
The position is not correct. Again, AMPF #1045 this was simply an amendment to the original plat that
relate to outlots. Most of the notes from the original plat (PF #1045) were simply included in the
amendment (AMPF #1045) for consistency, including note 11. For the amendment, no new streets were
constructed and no new maintenance was requested. It was clearly not requested that the County
remove the existing streets from maintenance which they acknowledge they had under maintenance
since 2006.
It is not clear exactly at what point or through what process the County removed the streets from
maintenance. I have no correspondence from the County indicating this was to take place. Obviously if I
had received such notice, I would have pointed out at that time that this was not correct.
Since 2012 I no longer have had any interests in the PUD or HOA and am only providing this information
for historical assistance to the HOA to get this matter resolved. I have consulted with my legal counsel,
Cameron Grant, who concurs with the conclusion that the County should be responsible for the street
maintenance.
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