2 Nov 2017 - connections/extensions or systems from the Town of Fuquay-Varina, Aqua ... must be in compliance. Recommend
11/2/2017
Proposal to Purchase the former Crooked Creek Golf Course
Agenda • • • • •
Background Legal Analysis Facility Assessments Required Infrastructure Board of Commissioners Action
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11/2/2017
Background
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Background •
In 2015 the Friends of Crooked Creek, LLC sued the golf course owners
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In 2016 a Superior Court judge ruled in favor of the golf course owners
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The Friends of Crooked Creek appealed
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July 18th the Court of Appeals opinion was released in favor of the golf course property owners
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August 22, 2017, the Friends of Crooked Creek, LLC filed a Petition for Discretionary Review with the North Carolina Supreme Court
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11/2/2017
Background • There is a contract in place for the purchase of 21 acres for an elementary school (E-44) • Acquisition is on hold • The school acquisition would be a land banking opportunity 5
Background • Another group of residents organized an initiative called the South Wake Park Project • The Town of Fuquay-Varina and the County were both approached about converting the golf course into a park • The Town of Fuquay-Varina declined, but the County agreed to study it further 6
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11/2/2017
Background • August 2017 Work Session - Board of Commissioners received presentations from both a South Wake Park Project representative and staff • The presentations included high level estimates for park development, initial equipment, and annual operating costs • The Board directed staff to continue working to address various legal, financial and operational questions in preparation for further discussion 7
Changes Since August Work Session • Triangle Greenways Council • 1994 wetlands mitigation agreement with the Corps of Engineers • Property must be maintained in its natural state (filling, excavation, grading, drainage, clearing cutting or cutting of any vegetation or environmental altering activities are not permitted).
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Clean Water Management Trust Fund • $502,550 request was not funded
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11/2/2017
Legal Analysis
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Non-Standard Purchase Opportunity 1.
Cloud on Title due to Pending Lawsuit (Friends of Crooked Creek, LLC, et al. v. C.C. Partners, Inc.)
2.
County’s Use of the Property (143 acres former golf course) has not been entirely determined
3.
Complicated Title • •
4.
Conservation Easement on northern section – approximately 10 acres Restrictive Covenants encumbering all of the Property
County did not negotiate the Current Purchase Sale Agreement (Conservation Fund Contract)
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11/2/2017
Recommended Wake County Purchase Conditions 1.
EXPRESS LANGUAGE ON PENDING LAWSUIT: Must be dismissed with prejudice or finality of appeal with no material effect on the use of the property for any governmental purpose
2.
ELIMINATE RESTRICTIVE COVENANTS: Termination of the covenants as to this Property (golf course)
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Recommended Purchase Conditions 3.
APPROVAL by US ARMY CORP of ENGINEERS: County must be approved as transferee of the Conservation Easement and preclearance for any planned development/use of the property
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11/2/2017
Recommended Purchase Conditions 4. REMOVAL OF ALL ENCROACHMENTS • Residential Lot encroachments on the golf course ( ) • Cart path encroachments on residential Lots ( ) • Any others identified by survey
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Recommended Purchase Conditions 5.
TERMINATION OF ALL LEASEHOLDS: • Currently one tenant leasing maintenance building • Lease expires May 2018
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11/2/2017
Recommended Purchase Conditions 6. UTILITY APPROVALS: Approval of any connections/extensions or systems from the Town of Fuquay-Varina, Aqua NC, or NC Department of Environmental Quality 7. SATISFACTORY ENVIRONMENTAL ASSESSMENTS: No adverse conditions; additional time may be needed for due diligence/inspection I. BURY PITS ( ): Location identified and remediated to the satisfaction of a licensed engineer II. DAM: Emergency Action Plan completed and dam must be in compliance
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Recommended Purchase Conditions 8.
REQUIRED EASEMENTS: • EXISTING TUNNEL: Access easement will be necessary • GENERAL: Any others required for utilities, roadway improvements, planned construction
9.
REZONING: (if necessary) • Non-park use may necessitate Town of Fuquay-Varina rezoning
10.
FUNDING CONTINGENCIES: • BOC approval • Approval from Local Government Commission (LGC), if required
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11/2/2017
Crooked Creek Restrictive Covenants
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Restrictive Covenants: “Use Restrictions” Currently Encumbering the Property Majority of the restrictions are related to “LOTS” • “LOTS” are defined as parcels intended for s/f residential use
Assuming the County does not subdivide the golf course parcels into “LOTS”, there are currently three general restrictions that apply to the Property as a whole: 1. No animals, livestock, poultry (except household pets, ie. cats/dogs) 2. No Boat storage 3. No On-Street parking
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Restrictive Covenants: Conversion of the Property to a Different Use •
Covenants are virtually silent as to conversion of the golf course to a Non-Lot (non single-family) use •
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Article V, Section 12 speaks to conversion of the golf course property to Lots. In the event of such a conversion, the Property would become subject to liens and assessments and all the restrictions imposed on Lots.
Current litigation (Friends of Crooked Creek, LLC, et. al) was initiated upon the plan to convert golf course parcels into residential Lots •
This case does not settle the issue of what use restrictions currently apply or those that can be imposed in the future
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Restrictive Covenants: Conveyance to a Governmental Entity • “Common area” (owned by HOA) can be conveyed free and clear • “Portion of property” (350 acres originally developed) can be conveyed free and clear • Title insurance is a concern
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11/2/2017
Restrictive Covenant: Risks •
•
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Potential for Disputes over the Use of the Property •
280 Lot Owners and Homeowner’s Association (HOA) possess enforcement rights
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Risk of potential litigation if County use is not in keeping with that of Lot Owners
Covenants “Run with the Land” •
Current Lot Owners are unable to eliminate risk through contract
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Absent a valid, recorded amendment of the covenants exempting the golf course property or termination of the covenants, title remains encumbered
Golf Course Parcel Owners have Zero Control Over Covenant Amendments •
Golf Course Property Owners are not Members of HOA and are not conferred same status and benefits as Lot Owners
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Golf Course Property Owners have no voting rights; no right to use common area
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Restrictive Covenants: Risks, cont. • Future Amendments • Potential that future amendments to the covenants may conflict with County use • Vote Threshold required by covenants • •
2017-2022: requires 90% 2023: lowers to 75%
• Evolving Law: •
2006: Armstrong v. Ledges: “a provision authorizing a homeowners' association to amend a declaration of covenants does not permit amendments of unlimited scope; rather, every amendment must be reasonable in light of the contracting parties' original intent.”
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2013: NCGS 47F-2-117 (d): “Any amendment passed pursuant to the provisions of this section or the procedures provided for in the declaration are presumed valid and enforceable.”
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Restrictive Covenants: Methods of Termination 1. Recorded Amendment of the Declaration of Covenants by HOA and Lot Owners, excluding all golf course parcels • Initiated by HOA and Lot Owners • Drawback: currently 90% vote threshold
2. Condemnation • Initiated by Wake County • Drawback: Additional Time and Costs with Litigation and Limits future use of property
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Condemnation Alternative to Renegotiated Purchase Sale Agreement •
Not a contractual sale; County has authority pursuant to NCGS 40A et seq.
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Eliminates risks associated with restrictive covenants
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Limitations • County has never condemned for a park • Requires a specific public purpose; use of the property must be predetermined • Protracted Litigation – all 280 lot owners and lien holders would be parties to the lawsuit • Title does not immediately vest upon filing of lawsuit • Compensation at fair market value
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11/2/2017
Condemnation Authority for Contemplated Uses Park Use Only
Affordable Housing
Lease to Non‐Profit
Unrestricted Use
YES, for parks, playgrounds, and other recreational facilities
YES, but action would have to be instituted by the Housing Authority
NO, not an authorized public purpose enumerated by statute
(GS40A‐3(b)(3))
G.S. 40A‐3(c)(5)
NO, because must state public purpose at time of lawsuit and limited public purposes for which there is authority to condemn
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The Conservation Fund Purchase Proposal Lease Purchase Agreement (LPA) •
Acquisition of the property by The Conservation Fund.
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At closing, The Conservation Fund would enter into a lease purchase agreement with Wake County that would provide the County with immediate access to the site.
Lease Purchase Price: $3,950,000 •
Lease Term: 4 years.
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Lease Commencement Date: The Conservation Fund Closing – Dec 7, 2017
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Holding Costs: Calculated annually on the outstanding lease balance prior to each payment at an interest rate of prime plus ½ percent.
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Local Government Commission approval process
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11/2/2017
Wake County and The Conservation Fund Closing Conditions •
An agreement with Wake County and The Conservation Fund that outlines the reimbursement of the Fund’s costs related to the acquisition of the property
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Assigns day-to-day stewardship and maintenance responsibility of the property to the County during the Fund’s interim ownership period.
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Resolve all Wake County purchase conditions
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Facility Assessments
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11/2/2017
Facility Assessments • Dewberry Engineers Inc. – Evaluated buildings • Clubhouse and Parking • Golf Cart Building • Maintenance Building • Restrooms/Comfort Stations
• Site Collaborative – Evaluated outdoor spaces • Grounds • Cart Paths
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Clubhouse Area • Clubhouse • 5,997 SF built approx. 1997 • Contained offices, a pro shop, dining room, kitchen and bar, restrooms, and player locker rooms. Golf Cart Building
• Golf Cart Storage Building • Also includes: • Parking • Walkways • Wooden decking for hosting outdoor events Clubhouse
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11/2/2017
Clubhouse Area FY18
FY19
$316,664
$395,602
Includes: • Clean / repair steel support columns • Replace exterior walks, pavers, and handrails • Replace mechanical systems, duct work, and water heaters
Includes: • Interior finish renewals • Lighting and plumbing systems • Interior ADA compliance • Parking lot surface
• Install ADA curb ramps and parking spaces • Security (i.e. fire alarm, fences/gates) • Exterior finish renewals • Selective demolition
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Maintenance Building
• 5,100 SF pre-engineered gable metal building • Intended uses were storage and repair of maintenance equipment, office and break room for grounds staff, and the storage of pesticides/ herbicides. 32
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11/2/2017
Maintenance Building FY18 $154,951 Includes: • Exterior / Interior finish renewals • Replace mechanical, electrical and lighting systems • Parking area ADA and drainage area improvements • Egress improvements • Security (i.e. fence/gate, security alarm system)
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Restrooms/Comfort Stations
• Built approximately 2005
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11/2/2017
Restrooms/Comfort Stations FY18 $51,240 Includes: • Replace missing siding • Paint the interior and exterior • Replace mechanical systems • Replace plumbing fixtures and fountains
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Cart Paths
• Approximately 5 miles of cart path • Intended for convenient access to golfing tees, fairways, and greens
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11/2/2017
Cart Paths FY18
FY19
$69,115
$1,123,322
Includes: • Realign selective cart paths due to encroachments onto private residential lots • Add temporary handrails to wood bridge
Includes: • Repair / replace cart path due to accessibility or condition • Replace wood bridge • Provide ADA compliant route to boardwalk
• Selective demolition of unsafe structures
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Grounds
• • • •
Gates and Bollards First Mowing/Brush Control Irrigation System Pond Management
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11/2/2017
Grounds FY18 $212,766 Includes: • Initial mowing and brush control • Signs • Vehicle gates and bollards • Remove irrigation pump building and irrigation system • Pond inspections and high hazard assessment / maintenance
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Facility Assessment Summary FY18
FY19
Clubhouse Area
$316,664
$395,602
Maintenance Building
$154,951
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Restroom/Comfort Stations
$ 51,240
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Cart Paths
$ 69,115
$1,123,322
Grounds
$212,766
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Total
$804,737
$1,518,924
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11/2/2017
What do we still need to figure out: • • • • • •
Additional recreational facilities related to a Park Master Plan Additional repairs related to an ADA Transition Plan, including lift Potential not-for-profit uses Investigate the clubhouse live load capacity of structure Phasing of cart path repairs and any additions Feasibility to elevate portions of cart path in low-lying areas (e.g. wood or concrete boardwalks)
• Which areas may revert to a natural state • Whether the dam needs repair
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Required Infrastructure
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11/2/2017
Water and Sewer Sewer • Aqua NC agreed to continue service to clubhouse • Aqua NC has an existing package plant just north of maintenance building
Water • 12 inch water main extended from Lake Wheeler Road (approx. 3,700 lf) • Assumes a stub for future school site • Estimated cost at $625,301
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Town of Fuquay-Varina 2035 Community Transportation Plan 110ft Right-of-Way
10ft sidepath for pedestrians and bicyclists
Curb, gutter, and storm drainage
Landscaped median
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11/2/2017
Town of Fuquay-Varina 2035 Community Transportation Plan •
Road widen responsible is for portions of road fronting Hilltop Needmore Road •
WCPSS – shown in purple ( )
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Wake County – shown in orange ( ) •
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Estimated at $3,654,005
Off-site Road Improvements (? ) •
Identified by future traffic impact analysis
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Estimated up to $3,439,812
? ? ?
?
School Site
? ?
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Orphan Roads • Roads that were designed, built and recorded as public roads, but were never taken into the NCDOT Maintained Highway System. • Approximately 1.5 miles 46
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11/2/2017
Orphan Roads • Potential access points to the property from Brushy Meadows Drive • County responsibility unknown
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Non-Park Use Option • Opportunity to use some property for a use other than a park but would benefit the community • 21 acres • Future discussion by the Board of Commissioners 48
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11/2/2017
Park Development • Master Plan • Nine month process at ~$75,000 • Public Input • Recommended plan with associated cost will be presented to Board of Commissioners when complete
• Park Development • Estimated cost to develop park $7,000,000 • Time to design/permit and construct park 2½ years
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Total Projected Cost Total
FY18
FY19
FY20
FY21
FY22
Land Purchase
$4,476,026
$22,650
$620,575
$915,476
$1,485,792
$1,431,533
Facility Assessment Repairs
$2,403,173
$804,737
$1,518,924
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$79,512
$100,000
$100,000
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Roadways, Utilities, & Offsite Road Improvements
$7,093,817
$4,620
$3,649,385
$3,439,812
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Park Development
$7,000,000
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$7,000,000
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$1,854,445
$146,623
$407,825
$420,293
$433,186
$446,518
Start-up Equipment
$201,637
$201,637
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Park Development Impacts
$305,400
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$150,000
$155,400
$23,434,498
$1,280,267
$6,196,709
$11,775,581
$2,068,978
$2,112,963
Required Infrastructure Master Planning
Operating Staff & Operating
Total
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11/2/2017
Board of Commissioners Action Action 1: That the Board of Commissioners considers acquisition of the former Crooked Creek golf course subject to the following conditions: A. Prior to the County entering into Purchase Contract with either party identified in Option A or Option B below, the following additional purchase conditions must be agreed to in writing, in addition to all purchase conditions laid out in the existing Conservation Fund Bargain Sale Contract: a. Pending lawsuit must be dismissed with prejudice or finality of appeal with no material effect on the use of the property for any governmental purpose b. Termination of the restrictive covenants as to this property (golf course)
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Board of Commissioners Action c. County must be approved as transferee of the conservation easement and receive pre-clearance for any planned development/use of the property by the US Army Corp of Engineers d. Removal of all encroachments including residential lot encroachments on the golf course, cart path encroachments on residential lots and any others identified by survey e. Termination of all leaseholds f. Preliminary approval of any utility connections/extensions or systems from the Town, Aqua NC or the North Carolina Department of Environmental Quality 52
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Board of Commissioners Action f.
Satisfactory environmental assessments including: a. b.
g.
Bury pits locations are identified and remediated to the satisfaction of a licensed engineer High Hazard Dam Emergency Action Plan completed and dam must be in compliance
Any required easements including: a. b.
Access easement for the tunnel Any others general easements required for utilities, roadway improvements, planned construction
h.
Rezoning from the Town of Fuquay-Varina if necessary
f.
The purchase is conditional upon Board of Commissioner appropriation and, if required, Local Government Commission approval of the financing
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Board of Commissioners Action B. Upon successful negotiation of all purchase conditions outlined in Section A, staff will bring back to the Board of Commissioners a written Purchase Agreement for consideration. Additionally staff will identify funding options for the acquisition, development and operation of the property for Board consideration.
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11/2/2017
Board of Commissioners Action Action 2: That the Board of Commissioners considers one of the following options with respect to the entity with which the County would enter into a Purchase Agreement. Option A: That the County conditionally accepts the Lease Purchase Agreement with The Conservation Fund, hereinafter referred to as "the Fund”, subject to the following terms: A. Prior to the Fund’s purchase of site: 1. Wake County review and approve all due diligence information related to the Fund’s acquisition of the property.
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Board of Commissioners Action 2.
The Fund and the County will negotiate in writing a proposed Lease Purchase Agreement that includes the following essential terms: a)The Fund will acquire the property for an interim period of 4 years. b)An outline of all reimbursements of the Fund’s costs related to the acquisition of the site. c)The County’s day-to-day stewardship and maintenance responsibilities for the property during the Fund’s interim ownership period. d)The County shall have immediate access to the property upon closing.
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11/2/2017
Board of Commissioners Action 3. The financial terms of the Agreement as follows: A purchase price of $3,950,000 paid over four years commencing at the Fund’s closing date, subject to Wake County closing conditions. The tentative payment schedule as follows: $500,000 on July 10, 2018; $750,000 on July 10, 2019; $1,350,000 on July 10, 2020; and $1,350,000 on July 10, 2021 (dates subject to change based on closing date). Holding costs will be calculated annually on the outstanding lease balance prior to each payment at an interest rate of prime plus ½ percent. County will have the ability to prepay any or all installments prior to July 10, 2020.
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Board of Commissioners Action 4. The Bargain Sale Contract entered into with the Sellers must be amended to include all County purchase conditions.
Option B: That the County negotiates a contract directly with CC Partners Inc. and Crooked Creek Golf Land LLC for the acquisition of the former Crooked Creek golf course.
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11/2/2017
Discussion
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