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I have a situation of concern and could benefit greatly from the collective wisdom of this forum.
Background: Our design + build firm is positioning itself to possibly become the (third and final) developer of a 250-unit zero-lot-line housing project that has gone through a number of ups and downs. Its original Planned Unit Development schematic design, site plan and plat were approved by the Authority Having Jurisdiction six years ago after a six to eight month review process and a development agreement was signed based on those documents. Developer #1 walked away from the project before groundbreaking. Developer #2 came in and went through the PUD process a second time (another six to eight months) four years ago, resulting in a new approved schematic design and a new associated development agreement. That developer either improved the property with roads and utilities or the AHJ cashed in the bond and did it themselves because the property is improved but still unbuilt. The banks financing the project foreclosed on 20 of the 250 lots. One of those banks donated its 16 lots to a non-profit affordable housing organization. The remaining bank approached us about buying and developing their 4 lots.
The master HOA has been charging fees every month for the past 6+ years and the owners are eager to cut their losses and walk away. None of the owners are interested in developing their lots themselves but the majority owner and the bank are willing to sell us their lots and the affordable housing group is willing to sign an agreement allowing us to develop their lots, potentially putting all of the lots under our control.
Dilemma: It is still unclear who owns the copyright to the design that the AHJ has approved. The drawings bear the name of developer #2, who is no longer in business. They also bear the name of the developer's draftsman, but no architect's name. (The landscape design is another issue altogether.) As I see it, our options are:
1. Retain a lawyer to investigate the copyright issue and see if the design is an "orphan work" or if we need to buy the copyright or if it's already owned by one or all of our property owners (see "money"--the small amount of extra time to do this may not be a factor because we would work on the financing, the sales and marketing plan and the master HOA architectural review concurrently).
2. Spend six to nine months redesigning and obtaining a new development agreement with the AHJ (see "time"--and this property is in the heart of an area that's about to boom and currently has almost no real estate of this type in inventory).
3. Spend a few days revising the design just enough to avoid copyright infringement while still satisfying the AHJ's requirement to build according to the standing development agreement (probably an impossible tightrope walk).
I think it's worth a 30-minute meeting with the AHJ to test the viability of option 3. If it's not viable, I'm leaning toward option 1. For which option would you vote and why?
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Sean Catherall AIA
Integrated Property Services
Bluffdale UT
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