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HomeMy WebLinkAbout2.0 BOCC Staff Memo 10.04.2004• STAFF MEMORANDUM BOCC 10/4/04 — JH REQUEST: Final Plat for the Village View Village PUD Subdivision, Phase B DATE: October 4, 2002 OWNER: Darter, LLC. REPRESENTATIVE: David McConaughy LOCATION: South of Battlement Mesa Parkway west of Stone Quarry Road within the Battlement Mesa PUD. The County Planning Staff and the County Attorneys Office have reviewed the Final Plat materials submitted by the Applicant for the Village View Village PUD Subdivision, Phase B and find the application to be complete. Further, the County Planning Staff and the County Attorneys Office recommend the Chairman of the Board of County Commissioners sign the Final Plat and all associated documents presented at this time. • • Chairman Martin agreed to look into it and will do some research. November 17, 2003 FINAL PLAT VALLEY VIEW VILLAGE SUBDIVISION, BATTLEMENT MESA PUD — APPLICANT: DARTER, LLC/EDWARD AND IDA LEE HOAGLUND REPRESENTED BY DAVID MCCONAUGHY, ESQ. Mark Bean, David McConaughy, Rob Wilder from High County Engineering and Carolyn Dahlgren were present. Mark stated that David and Carolyn have had numerous discussions about certain legal language that she will elaborate on and we do have presently a plat that has been reviewed by the County Surveyor and accepted in terms of content, etc. It has also been reviewed by staff and all plat notes required are there, there is one issue that Carolyn will elaborate on regarding the attorneys' certificate and we have a proposed letter of credit that will cover security to guarantee all improvements are going to be put in. The final deeds for exchange of the gas line easements, including the blank deeds to the Hoaglunds and the County were submitted. Additionally, two letters have been obtained from Xcel acknowledging that the plans proposed for Valley View Village are not in conflict with the new easements. The documents now specify that the easements are only for "underground" pipelines. Road Impact Fee — this was calculated by Tamara Pregl and asked if the Board approves this to allow Mark to put in the correct dollar amount. Carolyn explained that David McConaughy has a strong ethical feeling that he cannot file our standard attorney certificate and he cannot say there are no encumbrances on the land to be dedicated to the public. She asked the Board to listen to what David had to say regarding the easements. She has concerns with the electric utility folks that the County may wind up with public dedicated land that the utility folks they can tear up and we have no indication of the face of the documents. What actually one of these easements does say the grantee of the easement is responsible for any damage; the other document doesn't speak to that at all. Neither document says, "there shall be no roadways under our easements" but the documents also do not in any way say "it's okay to have a public road under our easement." The terms, agreements, and obligations of the Battlement Mesa Water and Sanitation Agreement, we have a disagreement as to what it means to be an encumbrance because from the County's perspective although this land is within the Water and Sanitation Agreement we are assuming there are no monies due to the district and therefore there are no liens or encumbrances on the public dedication from the Water and Sanitation District. And to your own the Resolution, he said the public dedications are free and clear provided however that the Resolution that create the public documents do indeed cover these easements. David submitted copies of the plat for the Board to review. The attorney certificate on page 1 and the drawing on page 2 were discussed. The certificate, the form in the County code states that an attorney is required to certify that there are no liens and encumbrance's period and it doesn't deal with exceptions to title. And the way I've gone about determining this was by reviewing the title commitment issue by a title policy for the property comparing the exceptions listed on that to the actual dedication eliminates ones that didn't apply and ultimately came up with these seven listed here. My understanding is that the first one is 1889 US Land Patton, which I understand there's no problem with. Basically the Land Patten is how the original homesteader acquired title to the property and it reserves certain rights to the United States of America and I have yet to see any property in the State of Colorado that doesn't have this exception. Because when the United States grants the homesteader the land back in the 1800's they reserved the right for example for someone who's following a vein or ore from somewhere else that goes underneath to follow that. So we're not aware of that being an issue here but it's out there and it's a recorded document and short of talking with our Congressman, he has no idea how to get rid of that. That's the first one. The next two are two electrical rights of way and they're both shown on page two of the plat. One is in favor of Holy Cross Energy along Battlement Mesa Parkway it's depicted. David said he received a letter this morning which states that the 20 foot easement is adjacent to the County road now known as Battlement Mesa Parkway, it's non-exclusive, parallel, separate from the County road and does not preclude use of the County road; we will work with the developers of Valley View Village to adjust this line as needed to assist in their access to the property at their cost. This was submitted as Exhibit A. The other one is the Public Service easement which is the diagonal easement shown in the upper left of the plat which already extends across Battlement Mesa and on the map it ends at the property line. The • • easement keeps going diagonally in that direction and the actual language of that deed to Public Service Company states, excepting right of way for County road. The language of the deed itself acknowledges that there's no conflict with the County road. The reason David listed it, it still an encumbrance of record. The way David said he views this attorneys' certificate is not to tell you that this is a perfect piece of property but to certify to the Board that there's nothing that interfere with the intended purpose of the dedications, which he will certify in this case. But he will not certify that there's nothing recorded against the property because there is. Another handout was given to the Board consisting of 5 plats with attorney certificates and basically shows that the board has approved in the past plats that include references to County resolutions, the second one shows a United States Land Patten as an exception, the third for Native Springs shows about ten or fifteen exceptions including utility easement for Colorado Electric Association and another from U. S. West; the one for the Rapids shows virtually every exception that was on the title commitment for that; the last one which is an amended plat for Lot D1 doesn't list any exceptions but includes some alternate language which says that it's free and clear from anything which would adversely affect the intended use of the property and that's something David said he could certainly certify. David said he had no problem in altering the attorneys' certificate consistent with the one the Board just approved from the Mr. Green with respect to these resolutions but Carolyn, the County Attorney and he disagree in terms of what the word encumbrance means. My view is that since they were recorded against the property they would theoretically be encumbrances. But Carolyn and David agree that none of them make any difference as to how the County would be able to use these public dedications. David requested to be humored since we all agree they don't matter, what's the harm in leaving them on there. He's trying to disclose what he views as the actual title exceptions since he is being asked to sign something certifying the state of the property, he's trying to be honest and say there are out there and recorded against the property but they have no impact on these dedications and won't limit the use of the dedications and that seems to him to be acceptable. Commissioner McCown noted that in looking at the plat any of these easements are going to adversely affect this particular development because they're all in the area of Battlement Mesa Parkway at this time which is an existing road. Ron Widler from High County Engineering was introduced, he helped prepare the plat. They are looking at adding a deceleration lane into the development which would be ten or twelve feet wide, ten foot asphalt and two and a half foot curb and gutter. Carolyn — the original grant from the Hoaglunds to Holy Cross had no language in it saying that the holder of the acknowledgement is dead. That being the grantee of the easement would be responsible for any damage so you'd be left with a common law argument about who would repair the road should they have to get into the road. Commissioner McCown — other than that gas line that crosses there, that we've already had the paper work on, would be there any other activity intersect with Valley View Drive. David — all roads within the boundaries of this plat are privately owned privately maintained so that would be our burden and it wouldn't be the County's even if it were an issue it wouldn't be the County's problem. Commissioner Houpt — unless you started talking about reconstruction and one could argue that's not maintenance or not be around when that happens. David McConaughy stated the SIA and the Covenants state that any road repair, road replacement is the obligation of the Homeowner's Association. David the preliminary plan documents have not been recorded. Carolyn noted some missing dates on the plat. David stated their proposal is to take all the various approval documents, the covenants, the plat, the Resolution on the Preliminary Plan, prepare an instruction letter for the order of recording to the title company and get that approved by the County Attorney and then that blank would be filed in. Mark stated this is contingent upon certain other statements being resolved as well as other signing of the actual plat is subject to submittal of the actual Mylar which Mildred is holding. Mark stated that certain fees need to be held prior to recording, and suggested being held by Mildred prior to recording and then the dates and Resolution numbers can be filled in. Carolyn verified that the fees had been paid. David —on the time for completion is a year from the date they signed it; this would be roughly a year from now. No change on that is being requested. When we were back in for Preliminary Plan there was an easement exchange for the gas line easement and the Hoaglunds have signed the deed granting a new easement to public service company and public service company has provided a letter saying the will sign • the deed quit claiming the old easement, we need the Board to approve this exchange. We do have a letter stating they will sign their deed when we sign ours. Carolyn stated she was more comfortable with the letter on the easements. She did point out there is a theoretical possibility that there won't be a problem in the future on the easement with the encumbrance. Motion A motion was made by Commissioner McCown and seconded by Commissioner Houpt to approve the final plat for Valley View Village Subdivision with the testimony of the applicant today on the submission of the empty blanks, the filing in of the empty blanks on the SIA Agreement, the filing of the exemption, the Preliminary Plat, the order in which all of those are to be filed will be submitted by the applicant and the final plat will not be signed until all of those said documents have been filed property and all fees paid. Carolyn asked if he included the quit claim deed. Commissioner McCown stated this was the testimony of the applicant's attorney that is going to be a part of this letter that's going to include the order of filing and all of the documents that have to be present to make this work. Mildred noted that the Chairman needs to sign in several places. David suggested a separate motion to cover this easement exchange. Mildred stated it was not signed by Public Service. Carolyn — that's the whole point, Public Service does not want to sign it until after they know that the Commissioners are granting them a new easement so assuming that's approved that will still be part of the instruction letter. Commissioner McCown — didn't understand how this exemption plat never got filed, preliminary plat and nothing has been done to this point and we're already back to final plat. Carolyn — the exemption plat is very old and it was done at a time at which the County didn't even require exemption plats, there was just an exemption resolution. So part of the Preliminary Plan approval was that the developer cleans that up and they have done that, it just says it has to be signed first. Mark thought Tamara had all of this complete before she left in terms of the actual Resolution drawn up. Carolyn stated that the letter of instruction will take care of all of that. Commissioner Houpt seconded the motion for discussion. Her concern and preference would be to take the item out that would make us concerned about ultimately having a problem with Holy Cross or Public Service, she wasn't referring to the Metro District and we have a letter from Holy Cross. Commissioner McCown didn't have a problem with either. Don — the way Larry stated the motion is that the Chair should not sign the final plat until a number of events occur; in the past you've authorized the Chair to sign the final plat but then directed the Clerk to hold it and not record the final plat until a number of events occur. Commissioner McCown acknowledged that either one of those would give him the level of comfort he's looking for and if it's normal to have the Clerk hold it until everything is completed that's fine. Commissioner McCown amended his motion to allow the Chair to sign but to have the Clerk hold the final plat and not file it until all of the items are completed. Commissioner Houpt amended her second. Vote on the motion: Martin — aye; McCown aye; Houpt nay Quit Claim Deed — Granting the Easement to Xcel A motion was made by Commissioner McCown that the Chair be authorized to sign the quit claim deed transferring granting the easement to Excel Energy for actually the transfer of easements back to us to make the paperwork fit everything that's on the ground. Commissioner Houpt seconded the motion; motion carried. Don clarified that Larry's motion included the SIA and the filling in the blanks before it's signed.