The City's Maintenance Commitment

 

While investigating the possibility of having the HOA apply for one the City of Aurora's Xeriscape grant programs, the Mission Viejo HOA confirmed with the City's Real Property Services Division that the peripheral right-of-way areas around and within the neighborhood are deeded City property that was once taken care of by the City. The City told the HOA that if it wanted to make improvements in these areas the HOA would need a landscape plan amendment agreement. The HOA consulted with the original planner of the Mission Viejo Development, Mr. James Toepfer who suggested speaking with a Municipal attorney. It is very likely that City's ordinance placing maintenance responsibilities on adjacent homeowners is illegal. It potentially violates the provisions set forth in State Law known as the Planned Unit Development Act of 1972. Also this issue is similar to city land issues involving homeowners not being held liable for snow shoveling on deeded city owned property as Colorado Courts have ruled. 

Since 1994 Mission Viejo residents have been burdened with the maintenance of these landscaped areas and walls. The City's unwillingness to continue landscape maintenance of these right-of-ways lead the HOA to attempt mandatory dues at the City's urging. This action eventually lead to neighborhood dissention and a class-action lawsuit and the near demise of the Mission Viejo HOA. This was because county courts upheld the ruling that mandatory associations are not allowed under Colorado law and rules of common property law in cases where such associations originated as voluntary. 

For the past several years the City's Neighborhood Services code enforcement division has cited homeowners with weed problems along the peripheral areas and has abated properties with liens on those property owners who have not complied. See the City's current ordinance on this issue: Zoning Code.pdf  The City's Neighborhood Services staff have also asked the HOA for solutions, (see this letter from 2006 Letter.pdf), and encouraged the HOA to sponsor clean-up days which involved the homeowners organization paying for the road closure of one lane of traffic on both Hampden and Chambers to give volunteers and residents an opportunity to clean-up these areas. In light of finding that the City alone should be responsible for the maintenance and a care of these areas, the Mission Viejo HOA will not undertake or facilitate direct or indirect care or improvement until this issue is addressed with the City. The Mission Viejo HOA further questions the City's cost benefit of code enforcement and abatement actions to enable maintenance as opposed to City staff care. Currently, the HOA has contacted the City and has requested a meeting with City officials to informally examine this issue.

Some of the Mission Viejo HOA's supporting documentation for re-establishing the City's Maintenance Responsibilities are:

 1. The Right-of-way areas were deeded to the City by the developer, Mission Viejo Company in 1972 as seen in this example recorded with Arapahoe County for Chambers Way:

Deed.pdf

2. The approved Annexation Agreement for our planed unit development specifies under provision no. 6 that "the City agrees to accept for maintenance those highways designated on Exhibit A and falling within the Property". 

Annexation Agreement.pdf

Exhibit A.pdf

See this Link for more amendments to the annexation agreement.

3. Further the Annexation Agreement specifies that the City adopt a separate land use category, the Planned Community District Ordinance, which is found in Exhibit B. The Planned Community District Ordinance requires masonry walls and landscape screening areas for the development:

Landscape Screening Areas From the PCDO.pdf

4. As the development continued the City took issue with reimbursing the Mission Viejo Company for landscape improvements and the City took a non-public agenda to curtail Mission Viejo Company's landscape and park improvement plans that the City deemed to be "high maintenance areas" as this classified letter alludes to:

Letter to the City Manager.pdf   

5. Since Mission Viejo is a Planned Unit Development (PUD) release of municipal obligations is a violation of State Law. The Planned Unit Development Act of 1972 C.R.S. 24-67-106 specifies that no modification, removal or release of provisions are allowed by a county or municipality:

C.R.S.24-67-106 PUD Act of 1972 Enforcement and Modification.pdf  

 6. Mission Viejo Company was simply following industry best practices as specified in these excepts from the Urban Land Institute's Community Builders Handbook of 1973 which recommended peripheral walls and landscape screened areas for noise abatement:

Neighborhood Unit Principles.png

Subdividing Along Major Traffic Ways.png 

Subdivision Planning Principles.png

7. The City is acknowledged as the owner of the right-of-way areas in this recorded water sprinkler license:

 City Water Licence.pdf

8. The Plat map for filing 6 shows the right-of-way area dedicated to the City on Hampden Ave.

Plat Filing 6.pdf

The first page states that the City agrees to maintain all the streets, parks, parkways and improvements:

 

Improvements are defined in Title VIII Chapter 18 of the old City code as including neighborhood streets, parkways and tree plantings. Approval of Plats in section 8-18-4 states that If any land
shown on a plat is intended for dedication to public use, acceptance of such land by the Council shall be endorsed on such plat. In three filings we have plat maps signed by the mayor as well as other public officials stating that the obligation of maintenance to these dedicated right-of-ways and their improvements. If the City wonders why the walls are not shown on the plat maps. The answer is simple again under condition 8-18-4, it states that the plat maps can exclude issuance of a permit for flag poles, security fences and retaining walls on public right of way.

Click Here to see a copy of Title VIII Chapter 18 as it was written during the time Mission Viejo was built.

It is interesting to note that sometime after Mission Viejo was built out the City revised all of its codes and repealed and retired many of them especially all the ones that relate to Mission Viejo (like the PCZD ordinance).

This same agreement was signed for Filings 7 and 9. See all of the Plat Maps for Mission Viejo by clicking HERE

9. Mission Viejo dedicated certain tracts to the City. Many of these tracts are right-of-way park areas:

Warranty Deed for Tracts to the City.pdf

10. In a 1994 Mission Viejo Homeowner's Newsletter it was reported that the City would not maintain those peripheral right-of-way areas since an agreement with the City for their maintenance could not be found and due to a City budget cut.

1994 Newsletter.pdf  

11. The City stopped maintenance due to a change in local ordinance for maintenance of city right-of-ways and encouraged transfer of maintenance responsibility to the Mission Viejo HOA: 

1997 Correspondence Letters to the HOA.pdf

12.  The Mission Viejo neighborhood in Aurora Colorado was always intended to be a small scale version of Mission Viejo California. To further guide our development the City must look at the progenitor of Mission Viejo Aurora in the City of Mission Viejo, Orange County California as a guide post for the plan improvements in the community. The City of Mission Viejo California has many miles of walled right-of- way areas with landscaping along those areas. All are of a similar design to that found in Mission Viejo Aurora. These areas are maintained by the City as either deeded right-of-way areas (or slope areas) or as "prescriptive easements" since the maintenance is viewed as an obligation of the City. The City of Mission Viejo maintains these areas to help achieve a cohesive design and to retain the intentions of the Mission Viejo Master Plan. This should be the same for Mission Viejo Colorado.

Here are some street views of Mission Viejo CA:

13. No masonry wall maintenance or landscape right-of-way are mentioned in any of the community's covenant restrictions. The Mission Viejo Company were known for their thoroughness and were even awarded a landscape award in 1972 by the Associated Landscape Contractors of America for their work in Mission Viejo Aurora.

Mission Viejo California was recognized as a community that had a Master Plan That Works

The absence of any of these issues must indicate that the walls and the landscape areas along the right-of-ways were always intended to be maintained by the City and never a burden on the residents. Also since the City acknowledges their maintenance responsibility for the trees planted in the right-of-way areas, the HOA questions how the City can care for the trees while ignoring the bushes and other landscaping along these areas. 

14. The closest source for the Slump Block wall replacements bricks are from Albuquerque New Mexico and are transported at a cost of $3.50 a mile. Minimal maintenance of these right-of-way areas by landscaped contractors is estimated to run between $16,000 - $20,0000 a year.

Mission Viejo is regarded as a unique development with a unique history which even the City's own Historic Preservation Commission has recognized. It is in the City's best interests to maintain and care for this unique development since it should be viewed as an asset to the City and its citizens. If the City recognized the value of maintaining these areas the City might find sources of funding for maintenance from grant programs such as transportation enhancement  grants, State Historical Fund Grants or GOCO (Colorado Lottery Funds). Alternatively the City could not deal with these areas and let the community run down and devalue the City's infrastructure.