HomeMy WebLinkAboutCity Council Resolutions (R-98-1394)-12/31/1998
RESOLUTION R-98-1394
A RESOLUTION APPROVING A SETTLEMENT
AGREEMENT REGARDING THE CALDWELL'S
CREEK LAW SUITS
WHEREAS, the City Council believes that it is in the best interest of the city to
settle the law suits involving the public open space, park land
dedication fees and other contested issues related to the Caldwell's
Creek subdivision law suits; and
WHEREAS, the City Council feels these issues are also connected to the approval
of a final plat for the Villas at Caldwell's Creek.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS:
Sec. 1.
THAT the settlement agreement associated with the Caldwell's Creek
law suits is approved.
Sec. 2.
THAT the Mayor be authorized to sign the settlement agreement.
Sec. 3.
THAT the final plat of the Villas at Caldwell's Creek is approved
AND SO IT IS RESOLVED.
PASSED BY A VOTE OF
ABSTENTIONS ON THIS THE
AYES,
DAY OF
NAYS, AND
,1998.
ATTEST:
CITY OF COLLEYVILLE
VETO
Jean Harris, TRMC, CMC
City Secretary
Richard Newton
Mayor
c~n~
Texas
THE CITY OF COLLEYVILLE
TEXAS
RICHARD NEWTON
MAYOR
Memorandum
To:
Jean Harris, City Secretary
Steve Helling, Donna Arp, Frank Carroll, Nelson Thibodeaux, Ginny Tigue, City
Councilmembers
Bob Stripling, City Manager
Richard Newton, MaYOr~ ~
August 23, 1998
From:
Date:
Subject: Veto of Resolution R-98-1394 (with Attachment A)
In the city council meeting August 18, 1998 I requested that the city council modify resolution
R-98-1394 by I) removing any reference to the Villas of Caldwell's Creek and 2) removing the
provision for returning and waiving Parkland Dedication Fees for Caldwell's Creek. These items
were not removed and the resolution was passed by a vote of 5 to 0, Therefore, I must veto
resolution R-98-1394 because it violates the Planned Unit Development - Residential (PUD-R)
ordinance and it violates the Parkland Dedication ordinance.
I fully explained the history and facts of this situation during my comments in the city council
meeting ()f August 18, 1998, These comments are contained verbatim in Attachment A to this
memorandum so I will not repeat them here, However, for clarity I will summarize the issues and
points of principal that have driven me to veto this resolution,
The issues:
I) The developer of Caldwell's Creek sued the city of Colleyville because he claims the
public open space dedicated under the PUD-R ordinance also satisfies the land dedication
required by the Parkland Dedication Fee ordinance.
2) The city contends that the Parkland Dedication Fee ordinance is completely separate from
the PUD-R ordinance, This means that any land donated (or fees paid in lieu of
dedicating land) under the Parkland Dedication Fee ordinance must be separate and
distinct from the open space dedication required by the PUD-R ordinance,
3) The citizens that live in Caldwell's Creek abutting the open space want to minimize the
amount of open space that is dedicated for public use.
The basic settlement approved by council:
1) Only a 24 foot strip of land adjacent to the southern property line of Caldwell's Creek
will be dedicated as public access, All other open space will be private, This satisfies the
concerns of the citizens that live in Caldwell's Creek.
2) $4,600 of parkland dedication fees paid by the Caldwell's Creek developer will be
returned, and over $7,000 that remain to be paid will be waived.
P,O. Box 185 COLLEyvpabeTlXOf3'6034 (817) 577-7575 I'viETRO
o
,
3) The plat of the Villas of Caldwell's Creek will be approved with a 24-foot strip of land
along the southern edge of the property line dedicated as public access. All other open
space will be private.
4) All parkland dedication fees for the Villas of Caldwell's Creek will be waived,
5) The second entrance to Caldwell's Creek will be closed to public access via an emergency
access gate,
Analysis of this settlement:
1) Only item 1) above is necessary for the settlement since it resolves the citizen's concerns,
2) Agreeing to waive or return parkland dedication fees in item 2) above violates the PUD-R
and Parkland Dedication Fee ordinances, This sets a precedent that will destroy the
viability of the Parkland Dedication ordinance for producing any additional land or funds
for neighborhood parks, This action also destroys the dwelling unit density equivalency
of the PUD-R and R-20 zoning categories, which was the basis for the PUD-R zoning
category,
3) Items 3) through 5) above are not part of the lawsuit and amount to "legislating by agreed
legal judgement", This circumvents the normal council processes required by city
charter that include public hearings and public debate on the specific issue before action
is taken by the city council. Since there is no lawsuit involving these items, the council
can handle them through the normal open meeting proceedings without risk of any
requirement for spending legal fees.
Response to council reasons for approving the settlement:
1) The lawsuit must be settled to save attorney's fees. This concern is legitimate, but the
developer also has the same concern. No one wants to spend thousands of dollars on
going to trial. Both sides have an incentive to make a good faith effort to settle prior to a
trail date. The Colleyville city attorney has said numerous times that there is no question
of fact in this case and that the city ordinances are constitutional. Many cities rely on
similar ordinances and they have withstood the test of time. So the city can negotiate
from a position of strength rather than capitulation. The city's expenses for legal fees
have dramatically trended down the last three years. With only two months of the current
fiscal year to go, the city has spent only $61,000 out of its $125,000 annual legal fee
budget. This includes the $19,000 fees already spent on this case, Last year the city spent
$186,000 in legal fees and the year before $374,000, Most of this was spent on the Elder
construction lawsuit.
2) Portions of the PUD-R 20% open space requirement can be used to satisfy land
dedication requirements of the Parkland Dedication Fee ordinance. This is a
violation of the ordinances, These ordinances have never been applied in this manner.
This philosophy represents a COMPLETE change in the concept of the ordinances, Any
change in ordinances or ordinance concepts should be done through the processes defined
by the city charter, Ordinance changes can be made at the discretion of the council,
however, they must be reviewed by the Planning and Zoning Commission and discussed
in public meetings and public hearings. These ordinances are strategically important to
Colleyville since they set the density of development and the mechanisms that have been
used to acquire parkland,
3) The Villas of Caldwell's Creek should be included in the lawsuit settlement because
the plat involves similar issues and the city can save legal fees. There is no reason to
expend any legal fees on the Villas of Caldwell Creek if the council doesn't choose to.
There is NO LAWSUIT TO SETTLE. If the developer threatens a lawsuit (which he
Page20f3
hasn't), the council could approve the Villas however the developer wants it to be
approved before a lawsuit is filed, Whether or not one agreed with the council actions in
that case, at least the council would not be circumventing the normal zoning proceedings
required by the city charter.
The bottom-line:
1) My veto has nothing to do with the amount of money being refunded or waived, This
money pales in comparison to the future risk of lawsuits and settlement results that could
follow as a result of the precedent this action is establishing, As a result of this precedent,
other developers could demand the return of fees or payment of money for public open
space. If not given they could then sue,
2) My veto is based on the violation of the current ordinances this settlement represents and
th.e fact that the settlement circumvents the processes required by the city charter for
zoning and creating ordinances,
3) My veto is also based on the fact that the precedents set in this settlement violate the 1.8
dwelling unit zoning density "standard" established in practice and defined by the Master
Plan.
Page 3 of3
Attachment A To Veto Memorandum
Mayor Newton's Comments
Agenda Item # 10: Caldwell's Creek Lawsuit Settlement
August 18, 1998
It is always difficult to oppose the majority opinion. However, my position on this issue
should surprise no one who is familiar with my record, I have always insisted that
ordinances be written to benefit the citizens of Colleyville at large, and I have been
adamant about their enforcement. The fact that I've been elected to be your
representative five times since 1989 tells me someone out there agrees with this
approach.
It is unfortunate that the history of this situation has been misrepresented and
misunderstood by many, I know from a citizens perspective this appears to be a
complicated and confusing case, I will try to explain the fundamental issues, and
potential ramifications of the proposed settlement to the citizens of Colleyville, Although,
the council and I disagree on these points, I have the utmost respect for the council and I
have no intention of maligning any of them personally, I also apologize if anyone of you
think I have done that in the past. Since the elected officials clearly disagree, I leave it to
you the citizens to decide for yourself.
There are two ordinances that come into play; the Planned Unit Development Residential
ordinance known as the PUD-R, and the Parkland Dedication Fee ordinance, The PUD-R
ordinance was designed to give developers flexibility to propose smaller lot sizes as long
as the average lot size is 16,000 square feet. As a reference for you the typical "half acre"
lot is 20,000 square feet. In exchange for the smaller lot sizes, the developer of a PUD-R
must dedicate 20% of the development to open space. This combination of open space
and average lot size ensures that the PUD-R has the same 1.8 dwelling units per acre
density that a "standard" Colleyville R-20 development has. Keep in mind the PUD-R
20% open space requirement COMPENSATES for the smaller lot sizes in order to
maint.ain the accepted development density, The existing master plan and the proposed
master plan update both require 1,8 dwelling units per acre density in Colleyville.
The Parkland Dedication Ordinance was designed to ensure parkland is set aside
primarily for neighborhood parks as the city's land is used up in developments. The
ordinance requires that 0.088 acre per lot be deeded to the city from each subdivision
development whether it is a PUD-R or an R-20 development. This requirement for
Parkland dedication is totally separate from the 20% open space required by the PUD-R
ordinance. Remember the PUD-R 20% open space is required to offset the smaller lot
size and make the PUD-R equivalent in density to the R-20 zoning. I encourage all
citizens to read each of these ordinances, especially the Parkland Dedication ordinance. It
is well written and explains how this ordinance helps acquire land for parks as stipulated
by the Colleyville Park Master Plan.
Page 1
Attachment A To Veto Memorandum
There have been numerous developments in Colleyville that have complied with both the
PUR-R ordinance and the Parkland Dedication Ordinance, Some examples are Timarron,
Ross Downs, Longwood, W oodbriar West, and Shalimar. In other words these are not
new ordinances nor have they been previously challenged or misunderstood by
developers.
In the case of Caldwell's Creek, there is no question about facts, Caldwell's Creek is a
PUD-R development that has a 20% open space requirement. In fact, there is a note on
the actual Plat that requires the open space to be dedicated as public open space as soon
as an adjacent development is approved by the city, The signature of the developer is on
the Plat. In addition, the developer sent a signed letter to the city" proposing to grant the
entire common open space save and except a 20 foot easement and approximately one
acre of land, ,. for public linear park". In addition, the developer in the preliminary plan
application elected to pay $310 per lot Parkland Dedication Fees as a means of satisfying
the Parkland Dedication Ordinance requirements, This was OK since Caldwell's Creek
has less than 100 lots,
Last year, the Shalimar subdivision was approved and it is adjacent to Caldwell's Creek.
It had open space dedicated to be public as part of the Colleyville linear park. This
triggered the zoning stipulation noted on Caldwell's Creek's Plat that the designated open
space become public open space, In fact, Shalimar is on the agenda tonight for the
approval of the developers agreement.
The developer refused to comply with the zoning claiming that his payment of Parkland
Dedication fees satisfied the requirement to dedicate public open space, After the city
informed the developer of its intention to take legal action to obtain compliance, the
developer chose to sue the city in an attempt to avoid complying with the ordinances,
This has been criticized and described by some councilmen as the city suing its citizens.
The city did not sue a citizen, On the contrary, a developer who happens to be a citizen
sued the city, This is unfortunate, but the fault lies not in the city attempting to enforce its
ordinances, but in the citizen/developer failing to obey the law,
The developer's lawsuit was later amended to challenge the constitutionality of the very
ordinances which have been responsible for the creation of many of our city's parks and
open spaces,
It was at this point that this conflict became an election issue, Two councilmen who had
opponents during the election promised to settle this lawsuit if elected, and criticized the
city for spending tax money in an attempt to uphold your ordinances. So, the premise that
has moved the council forward to this point after the election was to avoid spending legal
fees and to settle the lawsuit. However, the settlement is so unnecessarily lopsided in
favor of the developer that it will set a precedent that in the long run will cost the citizens
of Colleyville many times over the amount of money that would be spent on this lawsuit.
Let me explain why I believe this,
Page 2
Attachment A To Veto Memorandum
The city attorney, Ross Foster, has said that there are no legal questions of facts and that
there is no question that the city ordinances are constitutional. He further has stated that
this is the most well documented case and strongest case the city has ever been involved
in. There is no question about the intent of the city in zoning and plating Caldwell's
Creek. So the city has the position of strength. However, the city has not negotiated from
a position of strength,
The negotiation sequence was for the most part documented in letters sent between
Councilman Carroll and the developer. In each of these exchanges the city gave up
position until the developer not only had everything in the settlement he originally
wanted, but the developer also "negotiated" (quote) the approval of the Villas of
Caldwell's Creek that has been turned down at least once by the P&Z and twice by the
city council. I will comment on this more in a minute,
The city attorney submitted a request for summary judgement to the court on the merit of
the strength of the facts favoring the city and the fact that the city ordinances are not
unconstitutional. A court date for the summary judgement was initially set for May 18th,
Howt1ver, upon a request from the developer who has sued the city, the council asked the
city attorney to request that the court reset the summary judgement hearing to a later date.
In fact it was reset to June 26th and then to July 30th and most recently to August 24th,
Clearly, the developer did not want to risk the summary judgement hearing, The city had
nothing to lose. If we won the summary judgement, the city could still mitigate the issues
as presented by the citizens of Caldwell's Creek. If the summary judgement was not
immediately granted, the city would be in no worse position.
The settlement requires that the developer dedicate basically a 24 foot strip of land along
the southern boundary of the Caldwell's Creek property as public open space for the
purpose of constructing a linear park. In trying to define an acceptable settlement on the
public land dedication, the city hired a park consultant to assess how much width the city
needed to build a quality trail. The answer was at least 50 feet. So in accepting basically
24 feet and less than 12 feet in two areas, the city is going above and beyond a reasonable
compromise, This compromise resolves the issues that the citizens living in Caldwell's
Creek have with the public open space dedication as documented in a letter from the
developer dated June 15, 1998,
However, as part of the lawsuit settlement, the developer made additional demands. He
demanded that the Plat be changed to stipulate that the second subdivision entrance be
closed and function as an emergency entrance only, This was denied at the original
zoning of Caldwell's Creek and represents another example of the developer using this
lawsuit to get something that he had not been able to get through normal zoning and
Plating procedures, The developer has a history of violating ordinances in Caldwell's
Creek. A building was actually constructed at the entrance of Caldwell's Creek without a
building permit what so ever, It still stands without comment by the council although
they know that this is a city issue. In addition, the developer did not construct sidewalks
on one side of a street as required by city ordinance. The council recently had to handle
this as a special action to resolve the conflict that was created. Why should this developer
Page 3
Attachment A To Veto Memorandum
be given any special treatment beyond the specific resolution of the amount of public
open space needed for a connector trail and the best interests of the citizens living in
Caldwell's Creek?
The lawsuit settlement agreement also waives over $7,000 of Parkland dedication fees
from Caldwell's Creek that haven't been paid and actually returns $4,600 of Parkland
Dedication money already paid to the city, Why? This money goes directly into the
developers pocket. It doesn't necessarily benefit the Caldwell's Creek homeowners. In
addition, it sets a precedent that guts the Parkland Dedication Fee ordinance!
N ow back to the inclusion of the Villas of Caldwell's Creek in this lawsuit settlement.
The lawsuit settlement waives over $13, 000 in Parkland Dedication fees that the Villas
development would have to pay according to the Ordinance. This subdivision is not
connected to the Caldwell's Creek lawsuit in any way. There is no reason what so ever
that the Villas should be included in this settlement. It is not an issue of the citizens that
live in Caldwell's Creek. It only benefits the developer, Why should it be done? I have
asked that question repeatedly and have never received a satisfactory answer.
Let me give you some facts about the Villas of Caldwell's Creek. It is the highest density
development Colleyville has ever had at 3.71 dwelling units per acre, This is more than
double the Colleyville standard. In addition, the PUD-R ordinance specifically stipulates
that the maximum bonus density increase over the 1.8 dwelling units per acre standard is
50%, clearly much greater than the absolute maximum of200% provided for in the
ordinance, The developer may say that the land was zoned industrial so the tradeoff was
to keep an industrial development from coming into Colleyville. I will remind everyone
that Ross Downs was zoned industrial and it was approved at a density of 1.89 dwelling
units per acre. By the way, the Ross Downs developer made the same argument, but he
was held to the ordinance requirements. In addition, the council has plenty of authority to
keep an industrial development from coming into Colleyville if it is not wanted, To say
otherwise is simply scare tactics. There is no reason to include the Villas of Caldwell's
CreeK in this lawsuit settlement, except that it is what the developer wants and this is the
quickest way to get it.
This lawsuit agreement is too all encompassing and is weighted in favor of the developer.
It circumvents not only the existing ordinances, but also circumvents the public process
of council action for subdivision approvals. The elected city officials have given an oath
to uphold the city ordinances for the benefit of the citizens of Colleyville. I take this very
seriously and must stand on principle. If the council disagrees with the ordinances, fine.
Use the public process to change them. If the council wants to approve a subdivision,
fine. Approve it through the normal public procedures. It is totally inappropriate to
include the Villas in the lawsuit settlement. In fact I don't think of this as a settlement, but
as a capitulation to the developer's wishes.
I truly believe that this controversy and the manner in which it is settled represents a
milestone and perhaps a turning point in the history of Colleyville, I just hope it is not a
Page 4
Attachment A To Veto Memorandum
turning point from a pathway that is a clear formula of success, to an uncharted pathway
that includes a formula that is untested and that could lead Colleyville quickly to failure.
The approach that has been successful for Colleyville is to create ordinances that stipulate
high standards of development and insist that they be complied with. Developers have
complained about this in the past, but they didn't stop developing in Colleyville. They
didn't because they always make money in Colleyville and still do. Is our purpose now to
change ordinances for the benefit and convenience of developers without regard to the
impact on Colleyville?
I don't have a problem with this developer or any other developer asking for special
consideration or for grumbling about our ordinances, I do have a problem with a council
which does not consider the impact on our ability to enforce our ordinances when they
grant special favors or exceptions simply in order to settle a lawsuit. I understand the
desire to minimize the city's legal expenses and I commend that effort, However, the
message that this settlement sends could potentially increase our legal fees if this
becomes the method of choice to circumvent complying with our ordinances,
The way to minimize legal fees is to legally prevail when you are in the right. If you
capitulate when you are right there is no deterrent for future lawsuits.
If there is sentiment that our ordinances are no longer valid or necessary, there are
appropriate, legal avenues for changing them. I doubt that the citizens would support
eliminating or weakening the mechanism for obtaining open space and parkland, but if a
developer wants to lobby the council to do so, and if the council wants to comply, the
elected officials should follow the legal procedure outlined in Colleyville's charter.
This settlement sends the message that Colleyville is so afraid of attorney's fees that all a
developer has to do is threaten a lawsuit and Colleyville will capitulate, If that is not the
message, it means that this particular developer is getting special treatment. In fact I
would argue that he is in fact getting special treatment since all other developers have
paid Parkland Dedication fees and complied with the PUD-R open space requirements,
At best, Colleyville will have to create new ordinances as a means of funding and
acquiring open space and parkland. This is not in the best interest of the citizens of
Colleyville
I will veto this ordinance if it passes and includes the Villas of Caldwell's Creek in the
settlement, and the waiver or return of Parkland Dedication fees from Caldwell's Creek.
Page 5