HomeMy WebLinkAbout10-184JUNE 8, 2010
10 -184 RESOLUTION
(CARRIED 7 -0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVE MUTUAL DEVELOPMENT AGREEMENT WITH TOWN
OF OSHKOSH AND THOMAS RUSCH ETAL REGARDING
ACCESS TO PROPOSED BRISTOL SQUARE SUBDIVISION
INITIATED BY: DEPARTMENT OF COMMUNITY DEVELOPMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh that the
attached Development Agreement with the Town of Oshkosh and Thomas Rusch, etal,
regarding access to proposed `Bristol Square Subdivision' on the north side of Oshkosh,
off STH 76 in the area known as Jackson Heights, is hereby approved and the proper
City officials are authorized to execute and deliver the agreement in substantially the
same form as attached hereto, any changes in the execution copy being deemed
approved by their respective signatures, and said City officials are authorized and
directed to take those steps necessary to implement the terms and conditions of the
Agreement.
O YHKOfH
ON THE WATER
TO: Honorable Mayor and Members of the Common Council
FROM: Darryn Burich
Director of Planning Services
DATE: June 3, 2010
RE: Approve Mutual Development Agreement with Town of Oshkosh and Thomas
Rusch, etal, Regarding Access to and Development Issues of the Proposed
Bristol Square Subdivision
BACKGROUND
Since the mid- to late- 1990's, Thomas Rusch has attempted to develop a plat on the north
side of Oshkosh, just off STH 76 in the Jackson Heights area, known as 'Bristol Square
Subdivision'. The Town of Oshkosh and neighbors in the town subdivision to the south
(Jackson Heights) have consistently objected to the development of a subdivision mainly due
to concerns about the City subdivision connecting with their town subdivision. Of late, access
to STH 76 from the proposed Subdivision has been a roadblock due to access control
restrictions imposed by the State because two Town of Oshkosh roads intersect to the south
— Norton Avenue and Zarling Avenue. The State will only permit access from Bristol Square
Subdivision if the Town agrees to close one of the two intersections.
This mutual agreement will permit a street access from the proposed subdivision to STH 76
with the closure of Norton Avenue to the south. Council will still be required to approve
subdivision plans for any development on the site.
ANALYSIS
Staff has met on several occasions with Town reps, Mr. Rusch and the DOT to resolve
issues. Mr. Rusch recently purchased two lots along North Avenue with the intent to annex
them to the City and utilize a portion of the lots to provide a street connection through to
Jackson Heights. The Town, and neighbors, again objected. However, the Town proposed a
development agreement between Mr. Rusch, the City and the Town. Community
Development staff met with the parties on several occasions to draft a mutual agreement.
Key points of the agreement are:
• The Town agrees to discontinue Norton Avenue
• The City agrees not to connect the proposed Bristol Square Subdivision to Jackson
Heights via Western Drive until 90% of the homes in Jackson Heights are annexed or
the Town approves the street extension as necessary to protect the health and safety
of the residents of Jackson Heights.
• The Town and City will cooperate to conduct a joint traffic hazards study for the Zarling
Avenue intersection.
Mr. Rusch agrees to consider neighbors concerns when developing the subdivision
and develop either a park or single family homes along the common border.
The Town Board and Mr. Rusch have approved of the mutual agreement.
FISCAL IMPACT
None anticipated.
RECOMMENDATION
Staff recommends approval of the mutual Development Agreement as proposed.
Approved
"�.
City Manager
DEVELOPMENT AGREEMENT
This Development Agreement, effective as of the last date of the signatures of the parties
below, is among the Town of Oshkosh ("Town'), the City of Oshkosh ( "City") and Gabert and
Rusch Properties ( "Developer").
Recitals
A. The Developer is planning the construction of a new residential subdivision
located iii the City of Oshkosh, Wisconsin, to be known as the Bristol Square Subdivision
( "Bristol Square ").
B. Bristol Square will be located north of an existing residential subdivision in the
Town known as Jackson Heights ( "Jackson Heights ").
C. The Developer wishes to provide Bristol Square with ingress and egress from
STH 76 (formerly STH 45, a/k/a Jackson Street). The Wisconsin Department of Transportation
has asserted objections to a new ingress and egress for Bristol Square from STH 76.
D. The Town, the City and the Developer wish to cooperate on facilitating Bristol
Square obtaining ingress and egress from STH 76 in accordance with the terms and conditions of
this Agreement.
In consideration of the above premises, and other good and valuable consideration
mutually acknowledged by the parties, it is agreed as follows:
1. Discontinuance of Norton Avenue Within 60 days of the execution of this
Agreement by all parties the Town Board shall initiate the statutory procedure to discontinue the
STH 76 access cut at the east end of Norton Avenue. The discontinuance process will be subject
to the legal requirements of applicable Wisconsin law, including Wis. Stats. § §66.1003 and
82.10. Notwithstanding the Town's agreement to prosecute the discontinuance of the east end of
Norton Avenue in good faith and with all deliberate speed, the Town makes no representations
regarding the outcome of the proceedings. The Town will be responsible for the costs of the
discontinuance proceedings; the Developer will be responsible for the project costs.
2. No Access to Jackson Heights In consideration of the Town's discontinuance of
the access cut at the east end of Norton Avenue, the City and the Developer agree that there will
be no road connection from Bristol Square through Norton Avenue, Western Drive or any other
area within Jackson Heights until 90% of the owners of real estate within Jackson Heights have
annexed their respective properties to the City. This 90% annexation provision does not require
the City or the Developer to extend a road from Bristol Square through Jackson Heights, but
rather is a condition precedent to a road being extended from Bristol Square through Jackson
Heights. The preceding 90% annexation condition is not intended to prevent the Town from
extending a road from Bristol Square to Jackson Heights if the Town Board determines the
extension is necessary to protect the health and safety of the affected residents of Jackson
Heights or if there has been a substantial change in circumstances with Jackson Heights.
3. No Extension of Nielsen Drive The parties agree that Nielsen Drive, which is
located along the eastern border of Jackson Heights, shall not be extended from its current
northern terminus into Bristol Square.
4. Traffic Hazards Study The Town and the City agree to cooperate to conduct the
appropriate studies to address traffic hazards that may exist at the Zarling Avenue intersection
with STH 76 recognizing that this intersection will bear additional traffic after the
discontinuance of Norton Avenue as described in Section 1, above.
5. Bristol Square Development Issues The Developer has informed the Town of the
Developer's intention to provide a recreational park area within or adjacent to Bristol Square.
The Developer acknowledges that the residents of Jackson Heights have expressed an interest in
locating the Bristol Square park so as to both minimize and mitigate conflicting land uses.
Therefore, the Developer will meet with representatives of Jackson Heights to discuss the
location of the planned park. The Developer will consider the comments and concerns of the
Jackson Heights residents. However, the Developer makes no representations regarding the
exact location of the proposed park. If the Developer decides to locate the proposed park in an
area that is not contiguous to Jackson Heights, the Developer agrees that the land use contiguous
to Jackson Heights shall be limited to single- family residential use only. The Developer shall
record the appropriate restrictive covenants or deed restrictions reflecting this single - family
residential land use.
In addition, if the Developer conducts any blasting, whether for roads, ponds, or other
improvements, the Developer acknowledges that all blasting activity shall be conducted in
accordance with existing state and federal rules and regulations. In addition, nothing in this
Agreement shall be construed as a waiver by the residents of Jackson Heights to pursue legal
claims against the Developer for damage caused by the Developer's blasting activity. All rights
are reserved.
6. Approvals This Agreement is subject to the approval of the Town Board of the
Town of Oshkosh, the City Council of the City of Oshkosh, the legal representatives of the
Developer and the State of Wisconsin Department of Transportation. The parties shall take all
necessary and appropriate action to promptly secure these required approvals. It is a condition
precedent of this Agreement that the Developer obtain all necessary approvals to develop Bristol
Square predominantly as a residential subdivision. This Agreement is null and void if the
Developer is unable to obtain all approvals necessary, or if the Developer determines it is not
feasible, to develop Bristol Square predominantly as a residential subdivision. If Bristol Square
is not developed predominantly as a residential subdivision the Town Board may reopen the east
end of Norton Avenue and the Developer must close its ingress and egress from STH 76. The
Town acknowledges that the Developer retains the right to develop a portion of Bristol Square
for commercial use that is ancillary to the predominant residential use. However, the ancillary
commercial use, if any, shall be limited for the permitted uses identified in the City of Oshkosh's
C -1 "Neighborhood Business District" and, further, that the ancillary commercial use shall not
be contiguous to the properties located in Jackson Heights.
7. Withdrawal of Annexation Petition Attached and incorporated by reference is a
petition for direct annexation filed by the Developer with the City of Oshkosh. The Developer
shall request the withdrawal of the annexation petition upon the execution of this Agreement. It
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is a condition precedent to this Agreement that the City of Oshkosh consent to the withdrawal of
the annexation petition. This Agreement is null and void if the City refuses to allow the
annexation petition to be withdrawn. The parties acknowledge that the annexation petition will
be stayed pending all required approvals of this Agreement.
8. Intergovernmental Agreement The Town and the City intend for this Agreement
to be binding upon their current elected officials as well as subsequent Town Boards and City
Councils pursuant to the intergovernmental cooperation provisions of Wis. Stats. §66.0301, as
amended. The parties will not litigate the provisions of this Agreement, except upon breach by
another parry.
9. Term The term of this Agreement is indefinite, subject to the 90% annexation
requirement described in Section 2, above. Notwithstanding anything to the contrary, this
Agreement automatically expires if and when Jackson Heights is annexed to the City.
10. Advancement of Mutual Interests The parties acknowledge that in order to
effectively implement this Agreement, it may be necessary to obtain the cooperation and
approval of other governmental agencies, including, but not limited to, the State of Wisconsin
Department of Transportation and Winnebago County. In all matters necessary to implement
this Agreement, the parties agree to seek the cooperation and approval of all relevant agencies.
To the extent practicable, the parties will, where necessary to obtain such required approval,
submit a joint request or other appropriate documents requesting the approval.
11. No Waiver The failure of any party to require strict performance of any
provision of this Agreement shall not constitute a waiver of the provision or of any of the parties'
rights under this Agreement. Rights and obligations under this Agreement may only be waived
or modified in writing. Waiver of one right, or release of one obligation, will not constitute a
waiver or release of any other rights or obligations.
12. Severability In the event that any portion of this Agreement is invalidated by a
court, the invalidation of said provision shall not affect the validity of any other provision hereof.
IN WITNESS WHEREOF, the parties have caused the execution of this Agreement by
authority of their respective governing bodies and authorized representatives as of the date when
all parties hereto have affixed their respective signatures.
TOWN OF OSHK SH
By.
Gerald R. Frey, Town Chairperson
Attest:
Je a "Merten, Town Clerk
W
CITY OF OSHKOSH
Attest:
Pamela R. Ubrig, City Clerk
IL
DEVELOPER
Authorized Representative
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