A voter’s guide to the Byers Peak Annexation agreement
Ryan Summerlin November 1, 2013
Desired outcome of Referendums vote:
Proponents say: Voters support the well-reasoned, carefully considered decision of their elected representatives, and approve 300 and 301. Fraser’s municipal utilities could easily be expanded to service the area with compact growth principals. Fraser streets would connect seamlessly with the development’s streets. The tubing hill and mixed use zoning would not only provide additional sales tax revenue, but the light industrial uses of trade warehouses and manufacturing similar to what is now in Tabernash, could provide local jobs. The town would gain a park, water storage, a 6-acre parcel, and trails. The two reservoirs that protect the town’s water rights and the town’s ability to furnish a quality sustainable source of water are reason enough to vote yes for 300 and 301. The agreement reached with the developer limits the scope and time frame of the gravel operations and gives the town additional control over these proposed operations not found in state permitting. The annexation agreement will also generate revenue from use taxes and property taxes for the town. The existing water and sewer system are under-utilized and will operate more efficiently with more users. Customer’s fees per user would be less with and potentially could result in the lowering of user fees needed to operate the systems.
Opponents say: With our No Votes, we can stop the proposed annexation agreement. It gives too much away to the developers, increases Town costs and threatens what makes our community special. Optimally, our no votes will result in a fresh look at the annexation agreement, but with development through Grand County, we can still reach a better solution. Years of master planning have resulted in the correct reasoning to include dense developments within the boundaries of established communities. This does not mean communities should sacrifice their financial health to annex developments. BPP has rights to develop this property, but the residents and property owners also have property rights. A revised agreement through the Town could protect those rights. Otherwise, with development through Grand County, we believe the Board of Commissioners will recognize our rights in their decisions. The essence of the Fraser Valley is its welcoming nature. We are all part of our town even when we disagree. Effective public debates fueled by well-informed citizens have helped us dodge many development bullets in the past. When developments fail or are unfairly structured we all pay the tab, but if we pay attention and negotiate with a strong knowledge base we will continue to build a community we will both enjoy and can afford to live in. We can do better than Town’s proposed annexation agreement, either with a revised Town agreement or with development through Grand County.
Proponents say: One of the most important things the town does is provide water for its residents and businesses. Countless hours have been spent with the town’s water attorneys and engineers to master plan the town’s water needs. This agreement fulfills a number of the town’s current and future requirements to provide a dependable, reliable source of water. Under-utilized utilities would have new customers that would lessen the per tap expense of operation. On the split Structure of the water tap fee allocation, The Rendezvous agreement of 2003 fundamentally changed the water plant investment fee rationale. 100 percent of the fee was reserved for water system development and expansion, not operations or maintenance. The splitting of the fee for Byers Peak Ranch and the timing of the splits are reflective of the long-term needs of both the Blue Zone plant infrastructure and the newly developing distribution system and its redundancies and the fire suppression improvements for the fire district. There are few options for the Forest Meadows Augmentation Pond. This is connected to a valuable water right that could be compromised if the augmentation reservoir is not built in it’s court decreed location. This reservoir is not located on the Byers Peak Ranch parcel but on the Grand Park development. There are short-term solutions involving agreements with senior water right holders usually requiring annual payments. Long term, augmentation reservoirs are the best for the town, especially if wells are the primary water source. There are few locations that would meet the requirements to work effectively with our water rights.
Opponents say: Fatal flaws of the agreement include the water tap fee structure and failure to address (or at least study) potential impacts on town ground water supplies or increased chances of town flooding because of “hardening” of what is now an absorbent meadow. If the ponds cost less than the estimated $4.5 million, with the proposed agreement, the Town won’t be able to recover those funds for 35 years because the agreement “locks” any cost savings in the developers’ fund. We can’t be sure whether this is a good or bad option because the Town only considered one other option from a national engineering firm that admitted costs were overestimated. Town staff did not talk with local contractors, look into grants, consider water from existing ponds or talk with local landowners who might provide land at limited or no cost. A strong negotiating approach should have considered these options. The most damaging concession from the town is the granting of 700+ free water taps ($5.5 million) for pond construction – the value of which has not been set through a fair, competitive and fully open process. Water tap fees should pay for improvements needed for all parts of the water system the development uses. Instead, this “split structure” uses the first $5.5 million in fees for construction of augmentation ponds that will also generate revenues for the developers’ private businesses through snowmaking. With likely future growth, the Town would receive no water tap fees from this development for the next 25-30 years, leaving Town residents to pay for improvements needed for our town water system.
Proponents say: The town’s zoning plan is based on compact sustainable development principals that make for mixed use, walkable, transit-friendly development. It also addresses the changing nature of fire codes, energy codes and building codes. Building materials have changed where dimensional lumber is being replaced by manufactured components that can add additional height to buildings. The planned development district allows for more flexibility providing the potential for a wider range of housing types.
On land use, the main strength is that it gives the town land use controls on a development that will directly impact the town. It provides potential solutions to a number of outstanding issues the town has with it’s water master plan and wastewater plan.
Opponents say: Simply put, the annexation agreement is structured to unfairly award the developer too many financial concessions and more generous zoning which will enhance his property value at the expense of town residents, taxpayers and visitors. The proposed zoning plan through the county is much better than the town’s. Commercial development proposed in the Town plan will keep downtown Fraser from filling in existing commercial space – no commercial space is included in the county proposal. The County plan provides a better balance of development with preservation of views and respect for the Byers Peak meadow, open space along the Fraser Valley Parkway and lower building heights. One fatal flaw in the town plan is it gives allowances for 45 foot-tall buildings.
Taxes and fees
Proponents say: Use tax is a one time opportunity to mitigate growth impacts. The impacts on the town will be there if the development is in the town or in the county. However, the use tax can be used to improve the living environment in many ways. The property tax, within the town, especially if there is a commercial component, would more than cover the expense of maintaining the non-utility infrastructure.
Opponents say: Professional planners have long known residential development, with use taxes and property taxes, do not cover the developments’ long-term costs. With development through Grand County, the Town would lose these revenues, but would have significantly fewer expenses. For example, this development would require major improvements to the intersection at the railroad underpass, CR 72 and the Fraser Valley Parkway. With annexation, the Town has agreed to pay these costs, but BPP would pay with development through Grand County.
Proponents say: The most recent have been engineers: Leo Eisel, Brown and Caldwell; Mark Palumbo, HRS Engineers ; Jim Swanson, JRS Engineers. Attorneys: Chris Thorne, Holland and Hart; Kylie Crandall, Holland and Hart; Boots Ferguson, Holland and Hart; Rod McGowan, Cazier, McGowan and Walker. Our consultants have used other resources and staff at their disposal as well. At least three Town Boards have worked on this annexation directly and if you include the parkway, mayors and boards for Mayor C B Jensen, Mayor Jeff Johnston, Mayor Dennis Soles, Mayor Pat Howlett, Mayor Fran Cook and Mayor Peggy Smith. Staff involvement has included: Manager Jeff Dubin; Finance Manager Nat Havens; Public Works Director Allen Nordin; Town Planner CatherineTrotter; Town Clerk Lou Berger, Waste Water Plant Operator Joe Fuqua, and two hardworking staff members, Nancy Anderson and Susan Stone. There have been two other town managers that also dealt with issues related to this annexation; Chuck Reid and Clay Brown.
Opponents say: We have enjoyed input from many members of our community. Andy Miller has been involved in our community nearly 40 years as a citizen, contractor and for six years as a community journalist. Jane Mather has worked in commercial real estate planning, analysis and negotiation for over 25 years, with projects including major Chicago office negotiations, long-term planning for Google’s headquarters and a new government complex for the City of Long Beach. Regarding annexation and water issues, we consulted municipal lawyers, water district managers and the staff at the Division of Water Resources responsible for approving annexation plans and augmentation pond construction.
On Nov. 5, Fraser voters will decide whether to annex a 295-acre parcel and accompanying development located directly southwest of the town.
After six years of negotiations with the developer by three consecutive town boards, the Byers Peak Ranch annexation agreement was approved by a six to one vote in May of this year.
The approved agreement was successfully petitioned by a group of Fraser residents called Fraser and Friends for Responsible Development, spearheaded by Andy Miller and Jane Mather of Fraser. The petition put the agreement to a vote of the people, which is where the agreement now sits.
The Fraser and Friends for Responsible Development maintain they want to put the town in a better position by renegotiating an agreement, however the developer of the property, Byers Peak Properties, LLC, Clark Lipscomb, president, has confirmed that if the agreement were voted down, he would pursue developing the property within unincorporated Grand County.
The Grand County Planning Commission already has approved preliminary sketches for a Byers Peak development, in the event it is not annexed into Fraser.
Fraser voters are now faced with the decision of whether to annex the property into the town or allow for the property to be developed in the county.
While the decision will be made by yes or no votes on ballots, the decision does not come easy for town residents as they weigh the pros and cons of annexation.
Understanding the agreement is an arduous task. The multi-million dollar question is what exactly the town stands to lose or gain if the annexation is approved and what the town stands to lose or gain if the development is built in the county.
The most important part of the Byers Peak Ranch annexation agreement in the Town of Fraser’s opinion concerns water augmentation.
In the existing agreement, the town has brokered with the developer for him to build and dedicate to the town two reservoirs with a total aggregate storage of 60-acre feet of water.
Both proponents and opponents of the annexation agree that water storage is a necessity for the town in order to protect existing water rights the town has and to protect the water availability to Fraser’s “blue zone” water users.
The blue zone is comprised of “Old Town,” Workshire Acres, Byer’s Vista, Victoria Village, Lower Ptarmigan, Upper Ptarmigan, Forest Meadows, Wapiti Meadows, and the Fox Run subdivisions.
The town needs this water augmentation for in the event senior water rights holders, located downstream of the town, call for water.
In the town’s current situation, if those senior water rights holders were to place a call on the river, the town potentially would have to reduce the amount of water being pumped from wells that supply blue zone users, or completely shut down pumping from these wells. In such a scenario, blue zone users could end up with less water or no water.
The risk of having to reduce or stop pumping from the wells that supply the blue zone users is a reality in as few as two consecutive drought years, according to Fraser Trustee and Mayor Pro-Tem Steve Sumrall.
Augmentation ponds would serve as needed back-up water.
If the developer of the property were to build in unincorporated Grand County, the town would not receive these water storage facilities and would have to seek other ways to ensure blue zone users would always have water.
Opponents of the annexation assert the town should have spent more time looking into alternative ways to protect the blue zone’s users, and believe ponds can be built cheaper than what is outlined in the agreement.
The town relied on cost estimates from its engineer and views the annexation agreement as an ideal opportunity to complete this task.
The town does have other opportunities to mitigate its blue zone water needs, though most of those would be dependent on renewable agreements that would require annual payments, according to the town. There stands the possibility such agreements would not be renewed if agreeing parties needed change, Sumrall said, saying reservoirs are the best way for the town to stay in control of its future in the long-term.
It is possible the town could build augmentation ponds without the Byers agreement, though currently the town does not have the financial resources to undertake such a project, he said.
Building augmentation ponds without the Byers agreement would require obtaining land for pond construction, financing construction of ponds, legal fees, and paying off financing by either a mill levy or possible rate increase to the town’s blue zone users.
Rate increases would not be split among all town water users due to the development agreements made with Rendezvous and Grand Park, town officials said, which are serviced by the town’s yellow zone water system.
Rendezvous and Grand Park agreements stipulate all plant investment fees, or tap fees, paid for by new yellow zone customers go toward paying for the building and expansion of the yellow zone.
Blue zone users — or 889 Fraser residents — likely would bear the full weight of paying for water augmentation if the agreement were voted down.
The town engineer estimates the cost to secure water rights and build an acre-foot of water storage is $75,000, according to annexation agreement documents, bringing the cost of constructing 60-acre feet to $4.5 million.
The developer would be required to build two augmentation ponds, called the Forrest Meadows Augmentation Pond and the Byers Peak Ranch Augmentation Pond, within 11 years after the agreement is enacted.
The developer would pay for the design, construction, and all legal fees associated with dedicating the ponds to the town, under the annexation agreement.
The money spent by the developer to construct the ponds would be recouped through collection of water tap fees once the developer begins to construct buildings on the property.
The town would collect and hold the first 711 water tap fees sold in the Byers development in a separate account as security for construction of ponds, according to the annexation agreement.
The town’s current rate for a water tap fee is $7,700. After collecting 711 water tap fees, the account is estimated to end up with $5.5 million.
The town’s current well system, with minimal investment, can serve these initial water taps and the town does not anticipate having to make further upgrades until after the first 711 water taps. After the first 711 water tap fees are collected and reimbursed to the developer, the town will then begin spliting water tap fees with the developer in order to pay for further upgrades to its system, according to annexation documents.
Though opponents to the annexation believe the town should split water tap fees with the developer from the beginning to ensure the development contributes to both new and existing infrastructure instead of just getting reimbursed for building the augmentation ponds.
According to the existing agreement, if the cost to build the water facilities falls under $5.5 million, the town would keep the remaining balance. If the cost exceeds $5.5 million, the developer would not be reimbursed for the overage.
In essence the developer is loaning the town money to construct ponds, at zero percent interest, and would be reimbursed once the ponds are completed and the town has certified cost.
But opponents question the town’s logic in reimbursing tap fees once the ponds are built, saying the town could come out ahead if it were to use revenue from tap fees to build augmentation ponds on its own, without relying on the developer, Clark Lipscomb.
If the developer never builds a home in the development, the agreement states, the town would still have 60-acre feet of water storage and the developer would have no way of getting paid for ponds construction.
The developer also agreed to give the town access to 30-acre feet of water in existing Grand Park augmentation ponds until construction of the two storage ponds. Opponents of the annexation state they believe water tap fees should be split from the beginning to ensure this development contributes to both new and existing water infrastructure.
Potential revenues and impacts
Whether the development is annexed into the town, the town stands to benefit from sales tax revenues from people who move there and spend money at local businesses. However, the town may also see impacts, such as increased traffic, gravel operations and construction traffic.
Revenue the town stands to lose if the development were built in the county includes property taxes, use taxes, wastewater plant investment fees and its share of the water plant fees. Using assumptions of average square-footage and maximum number of residential units, it’s estimated use tax revenue would be $7.35 million upon build-out. (According to Winter Park/Fraser Building Official Harold Howland, an average home likely would be 2,000 square-feet with a 500 square-foot garage)
The town would miss out on revenue from fees and taxes collected in connection with the development, but it would also not be responsible for expenses related to the development, such as providing more police protection, snow removal and street and sidewalk repair.
Property taxes would be collected on an annual basis and would be based off value of properties, money sufficient enough to maintain public streets and provide police protection, according to Fraser Mayor Peggy Smith. Town officials maintain projected revenue generated from the project would exceed development-related expenses.
The split structure of the water tap fees would provide the town enough revenue to expand the water system, the agreement states, as the town and Byers development grow and need more water infrastructure.
The town would keep 100 percent of wastewater plant investment fees, which are presently $7,500 each.
In theory, if the town had more customers paying in to its water and wastewater system, the proportionate share of basic operating costs would be less.
If Byers is developed in the county, and if the developer chooses not to use the town’s water system, the town would not collect water and wastewater fees from Byers residents. The developer has said he plans to construct his own water and wastewater facilities.
The county would most likely negotiate some form of compensation for traffic impacts to the town if the development were built in the county; however, what those are remains unclear, according to Grand County Planner Kris Manguso.
Zoning and density
The planned development district plan in Fraser differs from the county sketch plan in that it has commercial zoning and more density than the county plan.
Amounts of required open space are the same in the two plans. Open space under both plans is required to be at least 20 percent of the total acreage of the project.
Under the town’s planned development district plan there are 23.3 acres of the property zoned as mixed-use for commercial and industrial usage, comprising 7.9 percent of the property. Under the town’s plan, six acres or 39,000 square feet would be dedicated to the town to use at it sees fit and 181,000 square feet would be designated for light industrial, warehouse and storage facility uses. The sketch plan submitted to the county has no portion of the property zoned for commercial use.
The average density under the town’s plan is 4.9 units per acre and the average density in relation to the sketch plan submitted to the county is currently labeled as “approximately 4 dwelling units per acre.”
Opponents to the town annexation applaud the preliminary county plan for having homes more clustered, less density and lower building heights.
The town’s plan currently calls for 1,897 units, while the sketch plan submitted to the county calls for 1,233 units.
The county’s and town’s plans differ in height limits of buildings and have changes to setbacks.
The developer requested and received a variance for the height limitations in portions of the town’s plan of 45 feet. In the sketch plan submitted to the county, the buildings presently do not exceed 35 feet. The height variance approved by the town allows for more flexibility in architectural design of buildings, according to Lipscomb.
The buildings setbacks in the county sketch plan are 30 feet. The building setbacks in the town’s plan vary according to planning area and are anywhere from 20 feet to 50 feet, dependent on building height.
The town negotiated for larger setbacks from Mill Avenue, comprised of 50 feet of open space trail, to preserve the views of existing structures on the north side of Mill Avenue.
Under the county sketch plan, the developer is not required to increase setbacks.
Land use control
The Byers property is designated as a Fraser growth area in the Grand County Master Plan.
The town stands to lose total control over land use and development oversight, if the development remains in-county.
Town officials negotiated gravel operations associated with ponds construction, brokering a strict plan, such as limiting truck traffic during High Country Stampede Rodeos. The plan is deemed more strict than if gravel operations were permitted through the state, which may occur if the development remains in-county.
The agreement limits the acerage of land the developer can excavate at one time and limits the height and duration of each gravel pile. The developer is also held responsible for street repair needed due to gravel operations.
In the town’s agreement, the Planned Development District Plan splits the property into 11 different development areas. The developer would have to gain approval before commencing development for each area. As it presently stands through the county, the developer would seek one approval for the whole subdivision.
The town has negotiated the agreement to ensure that any purchaser of the property and accompanying agreement would be held to the same responsibilities as Byers Peak Properties, according to town officials.