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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