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The Thompson Valley Towne Center case study exemplifies how complicated a development project can get, especially with the presentation of a highly involved property rights litigation. Many issues arise in this particular project involving multiple parties. All these issues must be closely analyzed and continually monitored by the partnership developing the mixed-use project. Holsapple and Marostica begin to contemplate the continuance on the project as they see many bumps in its road to completion. The initial idea sounded so great, and now the partnership is debating whether to scrap the entire project at a substantial loss.
LOOKING FOR THE LAND
It is my contention that finding and acquiring a property is the most important step in the development process. This decision will determine the involvement of a project as well as its success. The preliminary goal set forth by the partnership was to locate a property in Loveland, Colorado. They initially set out to complete three residential subdivision and any additional opportunities they found to develop for commercial use. So they went out and researched potential sites to develop. Form here, they would make a selection as to which properties they thought were best fit for development. One property they came across was at the north west corner of First and Taft. After viewing ownership and encumbrance information, they discovered that the property was being reviewed for a commercial center called Centennial Village. This land was obviously out of question for the partnership to develop, and could raise a possible competitive situation between the two completed projects. So the search continued on until the partners came across an 80-acre piece of property.
80 acres is a lot of land and could be home to more than just a shopping center. The access to this parcel could be made with much more ease, and it was just down the street from the previously mentioned parcel. A mixed-use development was definitely obtainable with 80 acres to wok with. Mixed-use projects are further complicated when dealing with the government as far as easements and zoning concern. Other considerations for this location involve a huge gulch and irrigation ditch lining the boundary on the southeast corner of the property. These are just a few issues that Holsapple and Marostica must have in mind when deciding to acquire such this large property. Although this project looks promising, the conveyance of the land would be extremely complex, as the partnership would soon discover through the O & E on this land.
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CONVEYING THE TITLE
The report revealed that three siblings owned the property including George Hahn (Hahn), Pauline Wright (Wright), and Meryl Lang (Lang). Hahn had a bankruptcy case pending, but a trustee listed as the beneficiary. Hahn also had a long-standing battle with the IRS and he had served jail time for tax fraud and they too have a judgment against Hahn’s assets. It would take the compliance of all the siblings’ interest to in fact convey this property to the developers. So in 1997, the developers bought a right to purchase the property, subject to bankruptcy court approval. This purchase agreement is typical and it allows time for developers to handle some of the government issues that would in effect allow them to build the mixed-use project. Any of the co-owners could decide to not sell their right to purchase the property, which is a risky situation for Holsapple and Marostica to be in. Just think of the time and money involved with planning and having architects involved in a project that won’t even get done because it is at the sellers discretion to revoke selling the property. The entitlement process was estimated to take 9 to 18 months, giving the sibling a tremendous amount of time to revoke their decision to sell. This would cost an estimated $200,000 from the pockets of the developers. So to move on from this point is a big decision from itself because of the risk associated with the land, and this risk could be avoided if the contract were dropped. At this point, I think it was a good idea for the developers to continue because the possible benefits of this project way out-weigh the risk assumed with its continuance—so far. These risks are not much more than an ordinary development projects and shouldn’t stop the project from proceeding. In opting to continue, the developers would incur another $100,000 in funding for planning approvals.
ZONING AND EASEMENTS
Another issue the developers must deal with is accessibility. The land is in prime location, between the local high school and Agilent Technologies. The problem arises when the developers find it necessary to get an easement from Agilent (Hewlett Packard at the time) for both their view and access relocation. The 8 eight-acre gulch is on the property owned by the party to be negotiated with. The easement would require Agilent to relocate their entrance to Taft Ave. The view easement would be made to ensure that no building would be constructed top block visibility of the tenants in the shopping center. The partners would have to pay for these implications inherent with the development. These easements are considered critical to the project and would cost the developers an additional $600,000 in off site cost. The due diligence anticipated is far less than what this project actually calls for. These easements could have been forecasted if the developers planned properly, knowing exactly what will need to be done in order to put together a project of this size. Still, the money involved with the easements is insignficant to the amount of future cash flow that the completed project would generate.
The partnership decides to develop both commercial and residential sections within the grounds making this a mixed-use project. This property certainly has the capacity for the intended development as shown in the preliminary drawings. One issue that comes into play with the mixed-use project is a noise problem. The grocer and other retail stores would create a lot of traffic. With traffic there is noise and no residence is willingly going to accept a high level of noise from the neighboring grounds. The solution to the noise problem the developers thought up is actually pretty ingenious. By the introduction of a “transitional commercial zone” to further separate the residences from the anticipated noise of the commercial establishments, a self-storage facility would be constructed with masonry noise walls, blocking much of the noise that would come from the neighboring businesses. I know that self-storage properties are income properties and so money could be made with the transitional commercial zone. A consultant researched the situation and reported that the transitional zone would effectively mitigate the noise situation.
While dealing with all the mentioned issues and trying to make this projects work, Holsapple and Marostica have been conducting meeting with the City of Loveland, Hewlett Packard, and surrounding neighborhoods. Costs for planning, engineering, and design work are estimated to amount to $400,000.
The next issue to concurrently deal with involves securing an anchor store for the commercial portion of the development. Holsapple began to contact potential grocery stores back in August of ’96 to determine the demand for a shopping center in Loveland. From the stores he contacted, he probably got some good leads. Holsapple found that Steele’s Market (locally owned) and Safeway were in the market for a new location. Safeway rejected the Windsong site on the north side of town due to its low surrounding population. He later found that King Soopers was locked into the Centennial Village project that never got approved, so they are looking to move into a new location. King Soopers is the top prospect with the highest credit rating and the highest per square foot sales. In securing King Soopers, other retail stores would want to be locating in this strip mall with the heavy foot traffic.
In January of ’98, there was a preliminary agreement made with King Soopers. They were to be the anchor store for the 117,000 square foot neighborhood center. I think that the developer’s confidence is at its peak after the commitment fro the anchor store and know that the center will be a success once completed. However, there was no leased signed by King Soopers so they could opt out if something were to come up. The Loveland Planning Commission approved the development plan in June ’98. King Soopers joined the developers in the entitlement process because I feel they knew how profitable this location was. The projects process looks promising at this point. The developers decided to close on the property later that month.
My thoughts on the development right now are that Holsapple and Marostica see the end results coming together with King Soopers jumping in on the deal. What a developer must not forget is that the results are not guaranteed. There still remains tremendous risk in the entitlement process. The time and planning involved of this project should not be rushed. I still agree, however, that they continue to pursue the development of the mixed-use project.
The developers closed and within the next month (July ’98) Loveland City Council approved the development and annexation request. It would take up to November of ’98 to complete the construction and preliminary development plans. These plans would need revision and it would take another six months to complete the final plans. If things went as planned, construction of the retail center could start in summer of ’99 and open for business in the last quarter of that year.
King Soopers demanded a firm delivery date of November ’99. The developers run into problems when trying to close on the property because of numerous appeals to the bankruptcy court filed by Hahn and Wright. King Soopers gave the developers sixty days to settle the case before they terminated the lease. If King Soopers left the shopping center, the entire mall could be in trouble.
LEGAL DIFFICULTIES IN ENTITLEMENT PROCES—Property Rights Litigation
*The conveyance of Thompson Valley Town center is the most complicated issue the developers face. They must decide whether or not to continue by the end of the sixty-day period or else King Soopers is threatens to go its separate way, bringing with it a possibility of the success of this project.
Hahn originally purchased the property in the 1960’s. He then sold the property to his parents to protect his assets from the IRS who he had run into trouble with. The father died and mother three years later, and no will was found to allocate their assets. The fair and reasonable thing to do in this case is exactly what the probate court did by dividing up the farm amongst the three children in ‘83. The sisters were in disagreement about Hahn’s interest in the land because Lang said Hahn owed the parents large sums of money that they loaned to him in the past.
Hahn filed bankruptcy in ’93 and put his one-third interest of the property as well as his personal estate down as his assets. The proceeding continues into ’98 when the developers are trying to convey title to his interest. Some issues arise regarding the bankruptcies impact on the developers contract to purchase the property.
The Right of Refusal—the bankruptcy court can in fact order the sale of property owned partially be the debtor in bankruptcy under certain circumstances. The court will primarily accept a sale of the property if they are going to receive more money than they would than splitting up the property. How the court divides the property is complicated and often messy, so the best thing to do would to sell the property. However, upon the bankruptcy courts approval of the sale, the other owners can refuse to purchase the property on the same terms as the court approved the sale. This says that the court, even though they approve the sale, the other owners can reject the sale. Since real property is unique, this protects people of having their property sold even if it is for a fair amount. In this case, the right to first refusal is further complicated by the extended contract in the purchase agreement made with the developers.
The Sale Appeal—Hahn and Wright sought to appeal the decision the court gave to sell the property. Since they didn’t have funds to secure bond to the property, the developers were able to claim title to the land. However, if the decision were to be reversed by the federal court, then the title was to be returned and costs incurred during the developer’s possession of the title could not be recovered. So, it is risky to invest in the property because the decision could ultimately get reversed and Hahn and Wright reclaim the property. I am just trying to figure out what Hahn and Wright really want out of this property. They both seem to need money and that is what the developers are willing to give them. Hahn might be able to pay off his debt and Wright should just take the money and run. If they want more money, this should be negotiated with the developers and the project should not be held up. I really think that if the developers offered the other parties a little more money, they would drop the lawsuit and they would be able to get the project rolling.
The Early Closing Appeal—the closing of the Thompson Valley Towne Center is supposed to take place after the annexation and zoning of the property is approved. That was the whole reason for making a purchase contract in the first place. Holsapple and Marostica paid money to secure a property if in fact the planning commission approved the property. This makes for less risk if the developing party knows they can develop on the speculated site. Hahn argued at every zoning meeting saying that it was not appropriate to allow the zoning during the Sale Appeal. He thought that the original owners would prevail and both Hahn and Wright fought against the zoning. They were wrong in that once a title is conveyed and recorded, courts usually deem that title the right to ownership. I think that Hahn and Wright might have an underlying motive for protesting the conveyance because they now know the land is worth more after the city’s approval of the annexation and rezoning. It may seem that the co-owners might be looking for a higher bidder at this point. This gives them an added incentive to exercise the right of first refusal, one right that Wright felt she was denied. Wright, however, had documentation that she backdated that would allow her to sell the right of first refusal to a developer in a money exchange. Basically, Wright was caught back dating a document in hopes that the court would grant her a chance to refusal. This ultimately worked against her, as shown by the favorable ruling for the developers.
I feel that the co-owners don’t pass the smell test in court. There’s something behind their actions that just doesn’t seem right. The developers on the other hand, are trying to put together a legitimate real estate project that the town and people of Loveland are in favor of. This project will essentially help the community grow from an economic standpoint and this screwy family is trying to prevent this from happening, strictly for their interests. They made a purchase of sale agreement and they now regret doing this, so they are trying to hold up the project in court and prevent any construction. Legal actions is costly not only in court fees and money paid out, but more so in the length of time these issues need to be rightfully resolved provided due process. At this point, if I were the developers, I would try to find out what the owners really wanted out of this and try to negotiate a deal to save time and money that is being held up in the legal process.
The court ruled in favor of the developers in that the timing of the closing was beneficial for the purchaser and no new agreement was necessary. Of course the unhappy co-owner Wright appealed this decision to the federal level. The developers have incurred costs amounting over $200,000 (legal + site development). This is the pot of money that is on the line right now. Some other issues is the removal of the waste created by the predevelopment site improvement, which would incur additional costs. The purchase price would be refunded if the Sale Appeal or Early Closing Appeal were ruled unfavorably to the developers.
In my opinion, it would be worth the developer’s time and money to purchase the land before the zoning and annexation approval. This way, they would at least have a piece of land after they are done with the process and not left with a red line income statement for the time and effort put into a project that never broke ground. The planning costs already incurred aren’t going to be recovered anyway, so these are sunk costs. At least with the possession of land, there is opportunity to appreciate this value and perhaps sell it for more than the purchase price. If you just pull off completely, which is the easiest thing to do effort-wise but not financially sound, the developers would be giving up any chance to see a return on their sunk costs. Remember, the project can still be a success. All shareholders in the project, including the lenders and tenants, are rightfully concerned about ongoing litigation and it is the developer’s job to disclose what is really going on but maintain confidence in the projects success to keep a continuing interest in the project.
The Probate Court Appeals—Hahn comes out during the pending appeals with his mother Pauline Hahn’s will. The will proclaims Hahn to be the sole owner of the property in question. Even though this will is valid, the trial court ruled that the original decision must stand. The Colorado Court of Appeals declined Hahn a chance to hear his case because he filed the claim too late. This works out well for the developers and for Hahn in the end because even though the Ct. of Appeals said that they would hold the courts decision, they directed a re-trial to probate court to get more evidence about the will. Hahn is the sole owner of the Thompson Valley Towne Center property and this will make the entitlement process slightly more easy for the developers to convey title, as they now deal with Hahn’s trustee for the most part, without the nagging sister Wright involved. But another issue arises with the water rights on this land.
The Water Rights Appeals—The original sale of the land included the respected water rights on the land. I understand how valuable and complex water rights are, so this issue is an important one to address. The issue comes to light when Hahn came out and said that the water rights were given to his children before the bankruptcy hearings, most likely to further protect his assets from his creditors. Hiding one’s assets is not highly looked upon in the bankruptcy court system, or any court system at that, and when having trouble with the IRS, it would be rare to allow the conveyance of these water rights to slide through the system. It is unfair to the creditors to not be able to collect on assets because they person filing Chapter 7 is handing all his asse3ts away, especially as gifts to his children. It is for this very reason (protecting assets) the court upheld the decision as to allow the trustee to convey the water rights with the land to the developers. Further court appeals precede this decision, but it is unlikely Hahn and Wright will receive any rights to the water. The developers feel good about this decision because they are given the rightful ownership to the water on the grounds, making their investment a more stellar one. This should provide added incentive to close on this property and obtain full title to the property.
First Street Property—Believe it or not, the partnership of Holsapple and Marostica are not done dealing with the siblings. This issue deals with a property separate from the one the developers are interested in, but they had to wait for the settlement on Hahn’s personal estate. Lang had a priority to resolve the “First Street Property” issue before taking care of the issues regarding the other property. This would obviously hold up progress on the development. Lang was fortunately cooperative with the developers, but they had to wait until this dispute was settled in order to move on with their interests. This is just an unfortunate event that you may have to deal with when dealing with multiple parties with multiple agendas. Again, disputes are best when avoided and it is harder to do so when dealing with multiple parties, all with multiple agendas. Sitting on an investment and one is not able to control is a terrible thing. But surely, enough time will pass and the project will continue. I like to work on set time schedules and disputes throw off everybody’s schedule.
Holsapple and Marostica found a good piece of land to develop with promising results. The most difficult thing to deal with is the co-owners who have several issues to deal with on their own. These issues of the co-owners became issues of the developers. Just think of six discussed court cases and additional bankruptcy hearings that are all of which are unique to this one development project. Settlements were waiting for other settlements, and Holsapple and Marostica were caught in the middle of most of these. For future application and use of this example, I should—as an aspiring real estate developer—spend time researching deals so I don’t get caught up in other people’s problems. Yeah there is tremendous profit involved, but the risk in this case was much more significant that a normal expansion project. It is not that Holsapple and Marostica made a huge mistake, because I think the project was a success in the end, but a lot of the gut work can be cut out if you know what your getting into. I cannot express the importance of “caveat emptor” enough with today’s complex legal system.
I believe that even thought the developers clearly couldn’t secure the December ’99 date to King Sooper, that they would still be interested in being the anchor store. To secure this date would have put tremendous outside pressure on the developers to complete the project. Rushing to complete construction and resolving issues incurs great liability and could be astronomically costly as a result. There is always an inverse relationship between due dates and quality of work, no matter what the case and it will typically be sloppier if pushing to finish a certain task. Dealing with somebody else’s problems is something Holsapple and Marostica couldn’t control, but after being so “pot-committed” so-to-speak, Hahn, Wright, and Lang became problems they had to deal with. The main thing I took away from the exercise if to avoid doing real estate deals with the other side of the table being a multi-party, legally troubled family, all of whom are trying to be heirs of the property. Avoiding such situations will make negotiating and doing business in general much more smoother. All the rest of this case dealt with normal risk within any given development project. Everything, I am sure, worked out in the end for the developers and I wouldn’t doubt if King Soopers were in fact the anchor store for the Thompson Valley Towne Center to this date.