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.