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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.
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