The developer of the Rodeo Apartments is arguing that it’s Granby’s fault that the project never moved forward.

Developer Unicume Colorado has responded to Granby’s attempt to dismiss the developer’s claims on a town-owned attainable housing parcel. Unicume’s answer states that the town failed to deliver a clear title on the property, which forced the developer to switch from apartments to single-story dwellings with the town’s awareness and encouragement.

In a counterclaim, Unicume also asserted that the developer is in fact entitled to damages for the time and money invested in the project.

Granby owns a piece of land between the Flying Heels Arena and the Silversage subdivision that has been restricted to attainable workforce housing. At least five years ago, the town began working with Unicume on a 106-unit attainable housing project, made up of five or six two-story apartment buildings known as the Rodeo Apartments.

According to the town’s complaint, filed Dec. 28, Unicume and the town entered into an agreement with the intention to convey the $1.2 million property at no cost to Unicume in exchange for construction of this project in March 2019. The projected closing date was June 5, 2019, but the developer never closed.

According to Granby, after the developer came back with a new proposal in 2020 — one with fewer units and none of the amenities initially promised — the town began to withdraw from agreements.

Unicume declined to execute a quitclaim deed on that contract, which would allow the town to move forward with other proposals for attainable housing projects on the property. Granby has asked the court to decide whether the contract has been properly terminated.

According to the answer filed Thursday by Unicume, the developer was never able to close on the property because the town failed to provide a clean title. According to Unicume’s court documents, the property was subject to the deed of trust used to secure a 2005 loan at Granby Ranch — which faced foreclosure at the beginning of 2020.

It was not immediately clear how the deed of trust would affect the land that Granby Ranch’s former developer gave to the town through a special warranty deed in 2008. The foreclosure proceedings at Granby Ranch didn’t begin until roughly six months after the projected closing date between the parties.

In court documents, Unicume argues that because the town failed to deliver a clear title, the developer was unable to secure a loan from the US Department of Housing and Urban Development.

Unicume’s answer goes on to say that without that financing, coupled with growing construction costs and ongoing opposition from the Silversage neighborhood, the concept plan of the development was amended in early 2020 to a single story neighborhood concept.

According to Unciume’s court documents, this was with full disclosure to the town.

The homes — which the town described as “small, box-like duplexes” in its complaint — were described in Unicume’s answer as “modular” to better manage costs. Unicume’s answer added that the town board had previously approved a similar but separate modular housing project.

“Unicume spent significant time and capital on the redesign of the project to a single story neighborhood concept with the town’s prior knowledge, encouragement, participation and consent including multiple meetings and correspondence with staff,” the answer said, “and the proposed new project design was acceptable until the town unilaterally and without any prior notice or discussion denied approval of the single story neighborhood concept.”

The town argues in its complaint that Unicume never sought or obtained Granby’s approval for the redesign.

Granby’s complaint also said that Unicume failed to close, but Unicume denied that allegation, arguing that it was in fact the town that refused to close on the sale.

According to the answer, Unicume does not believe the developer breached its contract because the town represented to Unicume that it could deliver the title to the property in a timely manner. Unicume maintains that the town did not properly terminate the contract.

Unicume also stated in court documents that the town failed to pay the developer the $30,000 to terminate as outlined by the contract. The town board did agreed to pay that exit fee at an Oct. 26 meeting in exchange for documents and materials related to the lot, but Unicume did not accept the offer.

The counterclaim goes on to highlight another part of the contract between the town and Unicume that allows for a recovery of damages if the town is in default.

The counterclaim itemizes some of the expenses Unicume has incurred on this property, stating that the developer has paid more than $150,000 toward architecture, engineering, easement acquisition and financing efforts to various entities, and arguing that the developer is entitled to performance and monetary damages.

The contract between the two parties also states that, in the event of litigation, the winning party will be awarded all reasonable costs and expenses including attorney’s fees.

No court dates have yet been set, with Granby requesting the court declare that Unicume has no further interest in the property, while Unicume asks the court to deny these claims and award further relief as the court deems.

Granby’s town board has begun moving forward with other plans for the parcel, currently referring to it as the US Highway 40 workforce housing project. The town has invested in sewer infrastructure, purchased a parcel of land to provide highway access to the parcel, and is currently working with a group on a new design for an affordable housing project.