August 10, 2012

Hearing held on Tanglewood extension
Owners of subdivision near Pine Junction want five more years

Linda James
Correspondent

Dan Drucker

Dan Drucker, a resident of McKinley subdivision near the Tanglewood Reserve Planned Unit Development, testifies at Park County’s Board of County Commissioners hearing on Aug.  2. Drucker asked the commissioners to vacate the Tanglewood plat and have  the developers re-apply under the 2012 county land-use regulations. (Photo by Lynda James/The Flume)

On Aug. 2 Park County’s Board of County Commissioners heard pros and cons of extending the conditional approval requirements of the Tanglewood Reserve Planned Unit Development and the accompanying Subdivision Improvement Agreement.

The commissioners will render a written decision within 30 days.

Littleton, Colo.-based Pine Ridge Residential LLC received the conditional approval in February 2006 for Tanglewood Reserve, a proposed development near Pine Junction for 446 single-family homes plus commercial development.

Through its attorney, Thomas Ragonetti, Pine Ridge asked for a five-year extension to submit a letter of credit after it received a notice of termination of approval from Park County’s attorney, Lee Phillips, in February 2012.

The basis for the termination notice was that a performance bond in the form of a letter of credit for public improvements for Phases C and D, the first two phases of development, had never been received. The deadline for receiving the letter of credit was April 2006. The letter of credit was determined at the time to be $1,136,070, which is 125 percent of the amount needed to complete the public improvements.

A grade-separated intersection was required as part of the Subdivision Improvement Agreement.

The deadline for completing those improvements was Dec. 31, 2008. To date, none of those improvements have been started, and no letter of credit has ever been received.

Each person testifying at the August hearing was placed under oath by Chairman Dick Hodges to tell the truth, the whole truth and nothing but the truth.

County Attorney Lee Phillips said the consequences of not telling the truth held criminal penalties.

Such an oath usually isn’t required at a land-use hearing.

Using a time line of events, Ragonetti made several points as to why the extension should be granted.

Plat recorded

The final plat was recorded on Feb. 14, 2006, at considerable expense to Pine Ridge. The time line listed a cost of $1,949,764 by Pine Ridge on planning and engineering for the approval process.

The conditional approval said that the PUD final plat was to be held by then- Park County Attorney Steve Groome and not to be recorded until the letter of credit had been received by Groome.

Tanglewood plans

The Tanglewood Reserve Planned Unit Development Final Plat shows Phases A through H. The PUD had 446 single-family homes in Phases A through G. Phase H was to be commercial development. A letter of credit for public improvements in Phases C and D was to be delivered to Park County no later than April 2006 and work was to be completed by December 2008. The letter of credit has never been received by the county, and no improvements have been started. Park County’s Board of County Commissioners held a hearing on Aug. 2, 2012, to hear testimony on a request from developer Pine Ridge Residential LLC to grant an extension of five years to deliver the letter of credit. The PUD is located near Pine Junction and adjacent to the east side of Will-O-Wisp, Filing 1, Planned Unit Development in northeast Park County. (Map courtesy of Park County Planning Department)

The Subdivision Improvement Agreement, Section 2, states that once all conditions of the final plat and relevant Subdivision Improvement Agreement requirements were completed, the county attorney would promptly deliver the plat to the County Clerk’s Office for recording.

Yet the plat was recorded on Feb. 14, 2006, without the letter of credit having been received, according to documents presented.

Commissioner John Tighe asked if anyone had determined the cost of public improvement in today’s dollars.

Pine Ridge Managing Partner Alan Fishman said no, but that he is constructing improvements in other places for much less than in 2006 because labor costs are cheaper today.

To know the cost would require that Pine Ridge put the project out for bid, Fishman said.

Fishman said Pine Ridge relied on the recording as final approval and was not aware of who gave the plat to the Clerk’s Office for recording without the required letter of credit.

Park County Chief Administration Officer Tom Eisenman was Park County Development Services Coordinator in 2006. He testified that he was not aware of who gave permission to record the final plat.

Park County Clerk and Recorder Debbie Green was not called to testify as to her recollection of the plat recording.

Lots sold

Ragonetti said Pine Ridge relied on the plat recording as proof that the lots were approved, legal and could be sold.

The original 2006 Subdivision Improvement Agreement, Section 2.0, required that no lots could be sold or conveyed until all conditions of the final plat and relevant Subdivision Improvement Agreement requirements were completed and the plat recorded.

In September 2006, the 110 lots in Phases C and D were conveyed to Ryland Group Inc., Pine Ridge’s partner in the Tanglewood PUD. Cost of the lots was $1,620,000, according to Ragonetti’s time line.

Ragonetti also said the PUD lots have been assessed, taxed separately, and taxes have been paid since that time.

No evidence was entered into the record that taxes had been paid. This is a requirement of all land-use hearings, according to Park County’s land-use regulations.

Park County Treasurer, Michelle Miller was not called to testify as to the tax payment status of any of the Tanglewood PUD lots.

According to the Park County Treasurer’s website, approximately 300 Taglewood lots, including open space lots and outlots, are on the list of Park County-held tax liens. None are listed in Phases C or D that are owned by Ryland.

No one during the hearing referred to the Tanglewood PUD tax liens.

Other permits obtained

Ragonetti said the plat validity was not raised at either the May 2006 application for Park County’s 1041 water project special development permit or at the 1041 permit hearing process and approval that lasted from Dec. 2006 to July 2008.

Plat validity was also not raised by Park County during the United States Army Corps of Engineers wetlands disturbance 404 permit-approval process during 2008 to 2010. Park County was a referral agency for the 404 permit.

Both permits are held not by Pine Ridge, but by Will-O-Wisp Metropolitan District, a governmental entity that provides water and sanitation services as well as parks and recreation programs.

Both permits were required before Will-O-Wisp could begin diverting water from Elk Creek to service Tanglewood because only 28 lots could be built on without the Elk Creek water.

Asks to nullify PUD

United Mountain Communities Vice President Briggs Cunningham appears beore the Park County commissioners on Aug. 2. He submitted a letter from the organization asking the commissioners to adhere to the requirements of the Tanglewood Reserve 2006 conditional approval and declare the PUD null and void. He listed several reasons why the developers should reapply for the PUD under the 2012 land-use regulations. (Photo by Lynda James/The Flume)

Ragonetti said Pine Ridge had expended $1,269,023 in preparing materials for the 1041 and 404 permits.

By the time those permits were approved, Ragonetti said the building industry was in recession, so Pine Ridge never moved forward in developing the Tanglewood PUD or submitting the letter of credit to Park County.

Actions to vest plat

Ragonetti said that in 2008 Eisenman contacted Pine Ridge and suggested site grading be accomplished to vest the plat, and that was done at a cost of $76,000.

No details were given as to where the grading was accomplished, but the time line said it was accomplished in late 2009.

Eisenman did not testify as to his recollection of the circumstances behind Ragonetti’s statement or his knowledge of any completed grading.

Denial meant more lots

Ragonetti said if the plat was invalidated, then the land would revert to a previously zoned and platted Will-O-Wisp PUD Sketch Plan.

The Tanglewood portion of the Will-O-Wisp PUD was for more than 800 living units and was to be Filing 2.

Eisenman confirmed that during the Tanglewood PUD approval process, Groome had determined the Will-O-Wisp Sketch Plan plat vested Filing 2; now called Tanglewood Reserve.

Will-O-Wisp PUD, Filing 1, received preliminary and final approvals in the early 1980s. Filing 1 was built, but Filing 2 (Tanglewood land) never went further than the 1980s Sketch Plan stage.

Commissioner Mark Dowaliby asked which version of the land-use regulations was used during the Tanglewood approval.

Pine Ridge partner-owner Dave Coppfer said the 2006 LURs were used.

The LURs have been updated several times since 2006.

Ragonetti said if the conditional approval was extended to allow five years to submit a letter of credit, Pine Ridge was willing to add a condition that no building permit could be issued until the letter of credit was received by the county.

Current County Attorney Phillips said he would need to research the validity of any vested interests to Filing 2, Will-O-Wisp PUD and whether Tanglewood would revert to the 800 units in the Will-O-Wisp Sketch Plan if the current PUD was nullified.

Alan Fishman

Pine Ridge Residential LLC Managing Partner Alan Fishman, shown here at the Park County Board of County Commissioners meeting on Aug.  2, said at the meeting that the company had not calculated public improvement costs in 2012 dollars for the Tanglewood Reserve Planned Unit Development. He said that other projects are being completed for less than in 2006 due to a reduction in labor costs. (Photo by Lynda James/ The Flume)

Commissioner Dick Hodges asked why Pine Ridge had not produced the letter of credit by the April 2006 deadline.

Coppfer said because it took five years to get the other permits (in 2008 and 2010) and they believed the development had vested.

Public testimony

United Mountain Communities Vice President Briggs Cunningham presented a letter from the organization that stated the work time frame for completing the conditional approval requirements had lapsed; therefore the plat should be declared null and void.

The letter also stated that:

  1. Otherwise, the proceedings showed selective enforcement of the law.

  2. The fact that lots were sold to Pine Ridge’s partner, Ryland, should not have vested the development.

  3. The fact that only the Sketch Plan was approved for Filing 2, Will-O-Wisp, should not be considered final approval or vesting of the property prior to the Tanglewood approval process.

  4. The Aug. 2 hearing should be a “show cause hearing” why the plat should not be vacated.

  5. If Pine Ridge believed the PUD was fully platted, why was Pine Ridge not making any attempt to sell lots?

  6. The PUD should be rescinded and any future development should be considered under the present regulations and “proper posting of required bonding.”

Speaking as a Woodside Park resident, Cunningham said it was not up to the county to remind the developers of requirements and deadlines for the approval to be final. That was clearly stated in the conditional approval.

“It is your [Pine Ridge’s] job to follow the regs, and if you don’t, then you should pay the consequences,” Cunningham said.

He also supported the time frames in the conditional approval because things had changed over time, such as gas prices discouraging people to move to the area to live and to commute to the metro area to work. There had also been a reduction in Park County’s population, which meant less need for more houses, Cunningham said, and more water from Elk Creek watershed will soon be withdrawn when Colorado’s Staunton State Park opens later this year.

Since times did change and the same developers under a different company name had financial problems with the Safeway-anchored Conifer Town Center development in Conifer, the commissioners should ensure the developers have the financial ability to complete the public improvements, according to Cunningham.

Those financial problems at the Conifer Town Center eventually led to foreclosure and the center being put under the control of a receiver.

Historical context

Thomas Ragonetti, attorney for Pine Ridge Residential LLC, stands before the Park County commissioners at their Tanglewood hearing on Aug. 2. He outlined the time frame of events from 2006 through 2012 that led to the hearing to determine if the conditional approval of the Tanglewood Reserve Planned Unit Development should be extended to give the developers up to five more years to deliver a letter of credit. The commissioners will render a written decision within 30 days. (Photo by Lynda James/The Flume)

Hodges responded that the Conifer Town Center problems were not relevant to the extension request.

Dan Drucker, a resident of the neighboring McKinley subdivision, said that his well was required by Will-O-Wisp Metropolitan District’s water decree to be monitored for depletion of neighbors’ wells, and he had stayed within the framework of its water decree.

Currently the metropolitan district is operating with approximately eight to 10 water wells, according to Tighe.

Drucker said that the fact that money was spent for permits was not relevant and that houses could have been built before the 1041 and 404 approval because Will-O-Wisp had water for some, but not all of the houses.

Drucker also said it wasn’t relevant who had recorded the plat because the plat should have lapsed when the April 3, 2006, deadline for the letter of credit had passed.

Drucker said he found it disturbing that the letter of credit had not been submitted now instead of asking for an extension.

He agreed that the plat should be vacated and that any new proposal should be heard under the current LUR requirements.

Tighe said if the development was built, water would be available from Elk Creek, so Drucker’s well could be less stressed than now.

Drucker replied that any stress on his well was from the current drought, not Will-O-Wisp, and the drought was also affecting the amount of water in Elk Creek.

Tighe responded that he would weigh the fact that Tanglewood has Elk Creek as an additional water source, so Will-O-Wisp would not have to depend on its well field.

Tighe also said Pine Ridge had made concessions during the Tanglewood permitting process, such as building a grade-separated intersection before any certificates of occupancy would be issued; donating land to Elk Creek Fire Protection District for a fire station; donating $300,000 to Will-O-Wisp to fix the current roads in the district; and providing a $50,000 grant to Park County as part of the 1041 permit.

On Aug. 7, Eisenman responded by email to The Flume’s and verified the land donation had been deeded to the fire district. That land was part of Will-O-Wisp, Filing 1.

According to the conditional approval, the land was to be deeded by Will-O-Wisp Filing 1, not Pine Ridge, to the fire district before the Tanglewood final plat was recorded.

The time frame for the monetary donations have not yet occurred. The $300,000 wasn’t to be donated by Pine Ridge to the metro district until 200 homes had been built. The $50,000 was to be donated to Park County per the 1041 permit by Will-O-Wisp Metro District, not Pine Ridge, before any water supply infrastructure was built.

Other items at meeting

Board of Equalization

Seated as the Board of Equalization, the commissioners approved 49 reductions in value for property owners and the taxes owed for 2012. Total reductions resulted in a decrease of $1,839,178 in actual value and $237,890 in total assessed value for those 49 properties.

Taxes are determined by the total mill levies in each tax zone. Zone boundaries vary by the total of the special districts and other governmental bodies that tax in each area. Total reduction in taxes was not determined.

County rep contract

The commissioners approved a contract with Fairplay resident Charles Schultz to act as the county’s representative on the new Human Services/Public Health Building for $75 per hour. The scope of services under the contract will be approved at a later time.

Road right of way

The county approved purchasing right of way for the Tarryall Road federal paving project. Martin and Marguerite Ragain will receive $19,288 for 3.3 acres needed for the right of way.

 

OPINION

Letters to the Editor:  Kudos for James

To the Editor,

Having been a regular reader of The Flume for about a quarter of a century, it does take a unique piece of writing from the hundreds of articles to prompt one to respond. Lynda James’ Flume article (08-10-12) titled “Hearing held on Tanglewood extension” is indeed writing that deserves particular favorable comment.

There are many of us in the community (like Lynda) who have followed for decades the BOCC [Board of County Commissioners] proceedings involving what is now called the “Tanglewood Subdivision” matter. Without need to recap that long and tortured history here, suffice it to say that Lynda’s considerable background and writing experience combined to make her most recent article a work of accurate reporting as well as restrained journalistic understatement.

While reporting “the facts” of what occurred at the Aug. 2 public hearing, Lynda also astutely brought to bear important matters which should indeed have been made a part of the hearing “record” – but (for whatever reason or excuse) were not.

It is due to Lynda’s knowledgeable reporting that we learn from two examples (and there are others as well):

(a) unchallenged sworn Tanglewood testimony that “... taxes have been paid” – but no testimony nor even an offer of proof from the Clerk’s Office next door (where Tanglewood Tax Liens are a matter of public record);

(b) Tanglewood’s crucial (but unsubstantiated) issue that a “suggested site grading” claimed-comment by Park County’s Tom Eisenman would be sufficient to “vest the plat” (contrary to the governing BOCC resolution) – but Eisenman was not even called to testify on this pivotal point.

Lynda’s entire article struck an amazing balance of objective factual reporting while at the same time letting the reading public have a glimpse of critical matters that were left out of that proceeding. Journalism at its finest !

Respectfully submitted,

Michael C. Schaefer
Pine Junction

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