Verona council approves Phase 1 amendment for Whispering Coves; declines developer’s request for blanket early permits

The Verona Common Council on Feb. 24 approved a staff-drafted First Amendment to the Phase 1 development agreement for the Whispering Coves subdivision that sets firm deadlines for remaining public improvements and preserves the city’s ability to draw on the developer’s letter of credit if outstanding work is not finished.

The amendment, which the council approved on a voice vote after a lengthy public discussion, moves a short list of items into a Phase 1B category to be completed by June 30, 2025; requires temporary wet-well covers be secured within 10 days of the amendment’s execution; and requires the developer to deliver updated construction plans to the city engineer within 10 days. City staff said the action clarifies which improvements must be fully completed and accepted before final acceptance and preserves the city’s remedies if the work is not finished.

City staff framed the vote as a matter of standard contracting and public-safety practice. "I'm not aware of any municipality that accepts public improvements when we know that there are defects with them," City Attorney Kleinmeyer said during the discussion, pointing to identified defects such as broken curb and gutter and sidewalk sections listed in the staff addendum. Public works staff and the city engineer also told the council some items on the punch list cannot be completed successfully in winter conditions and that staging some work into a Phase 1B (with a June 30 deadline) is reasonable.

Developer representatives had urged a different outcome. "We respectfully request that you approve the proposed amendment in your packet tonight with the changes we've requested," said Dan O'Callaghan, speaking for Ford Development Group, asking the council to allow building permits to be issued immediately while giving the developer until June 30 to finish all items on Addendum 2. Connor Kearney of Ford Development Group said the project has "substantial progress" — including more than 1,400 linear feet of force main installed — and that issuing permits now would let buyers begin home construction and help close out Phase 1 sooner.

But city staff opposed the developer’s blanket request to treat the work as "substantially complete." Attorney Kleinmeyer told the council staff found documented defects that should be repaired before acceptance, and Public Works staff said some remaining work (for example, wetland plantings and some manufactured components) is either season-dependent or not yet deliverable. City Engineer Fisher said that several items slated for Phase 1B — a sluice gate, permanent wet-well hatch covers and plantings for an infiltration basin — were technically acceptable to defer because (1) the items have long lead times or are seasonally inappropriate to install now and (2) temporary measures can be used in the short term.

Council members debated precedent and staff workload. Alder Tucker Long made the motion to approve the staff-recommended amendment; Alder Braithwaite seconded. Several council members said they were reluctant to accept broad exceptions for developers who miss contractual deadlines. "I believe we need to hold the line in terms of that we're consistent," Alder Hoax said, adding that the city should not be expected to pick up the developer’s administrative burden.

The council approved the staff version of the First Amendment on a voice vote. Under that amendment, the Phase 1B items (including specific force-main pump-house components, permanent wet-well hatch covers and planting/establishment of certain basins) must be completed by June 30, 2025. The amendment also requires temporary protective measures for wet-well covers within 10 days of execution, updated plans be delivered to the city engineer within 10 days, and states the city may draw on the letter of credit identified in the Phase 1 agreement if the Phase 1B work is not finished on schedule.

Developer representatives said project cost increases and supply issues delayed completion. Ron Hinchew of Ford Development Group told the council the original public-improvement contract was about $3.9 million and has increased to about $5.3 million, and he said supply and delivery timing (and winter conditions) contributed to delayed installation. City staff replied that the original Phase 1 agreement, executed Nov. 4, 2021, allowed 18 months to complete improvements and that the city had acceptable administrative remedies available if the developer had failed to perform earlier.

The council vote did not adopt the developer’s request to allow all Addendum 2 items to be completed by June 30 while issuing building permits immediately. Instead, the approved staff amendment permits building permits for Phase 1 only if the developer has satisfied the other Phase 1 agreement provisions and provided the required updated plans and temporary measures; the City will retain the ability to require fixes or draw on security if Phase 1B items are not finished by the new deadline.

The council’s action concludes the public portion of the issue for now; the measure includes immediate technical deadlines for temporary protections and plan updates and a firm June 30, 2025 completion date for deferred items. If the developer does not finish the Phase 1B items by that date, the amendment authorizes the city to draw on the developer's letter of credit and complete the work.