President - Alan Kosloff     Secretary - Ellie Caulkins    Treasurer - Patrick Gramm    Executive Director  -  Jim Lamont

Directors:  Judith Berkowitz  -  Dolph Bridgewater  -  Richard Conn  -  Gail Ellis  -  Ron Langley

Eugene Mercy  -  Bill Morton  -  Trygve Myhren  -  Gretta Parks  -  Emeritus: Bob Galvin


To:             Alan Kosloff and Board of Directors

From:         Jim Lamont

Date:          November 20, 2006

RE:             Litigation - Tract E Open Space Protective Covenant


Vail Village Open Space Litigation to Court of Appeals:  There is a dispute over a land encroachment into protected open space by the Tap Room Bar and Grill (Remonov) in Vail Village.  Remonov’s proposal to expand a private dining deck, approved by the Town of Vail, encroaches into covenant protected open space (Tract E), intended for public use.  The protective covenants provide a procedure to amend uses should property owners holding a 75% interest in the subdivision desire change.   Remonov intends to bring their dining deck into compliance by defining it as a public recreation amenity.  


Affected property owners brought their dispute to the Eagle County District Court seeking to uphold the covenants.  The Tap Room has appealed the District Court decision, which favored affected property owners, to the Colorado Court of Appeals.  Legal arguments have been submitted to the Colorado Court of Appeals and are pending trial. 


Vail property owners could face the same challenge to covenant protected open space in their subdivisions.  They are directly responsible, as individuals or as a coalition, to ensure open space is aggressively defended in the courts, as it can be lost along with its value


The importance of the attempted violation is contained in the following quote taken from appellate court documents filed by the attorney representing neighborhood property owners.  “If a business could build on Tract E so long as its customers engaged in recreation, Tract E would quickly become a fully built-up extension of Vail Village.  Vail owes its existence to the pursuit of recreation.  Nearly every business in the Town is based on recreation in some way.  If Remonov were to prevail, there would be no limit to the number of bars and restaurants that could be built on Tract E.” The attorney concludes, “Tract E as open space would disappear.”


Tract E open space buffers Mill Creek Circle, the East Village, and Golden Peak neighborhoods from the Vail Village commercial center.  The tract covers several acres and contains Pirate Ship Park, Mill Creek, wetlands, a steam walk, and public parklands, as well as a section of the community’s main bike path. 


All Vail Village subdivisions, created by Vail Associates (Vail Resorts, Inc.), have similar open space covenant protections. There are neighborhoods not established by Vail Associates, such as the Glen Lyon Subdivision, that have similar covenant protections which the public has always had unrestricted access to. Vail Associates has transferred ownership of several parcels of its covenant-protected open space land to the Town of Vail. 


The implication of the appellate court proceedings has significant consequences for all property owners who benefit and enjoy these publicly accessible recreational open spaces.  The Homeowners Association urges aggressive support for those vigorously defending the Tract E covenant.  They do so in the interest of all Vail property owners benefiting from covenant protected open space.  A decisive ruling to protect Tract E covenants will establish an important precedent upon which all other similar covenanted open space can be protected and amendment procedures enforced.