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HomeMy WebLinkAbout2025-13 A Resolution of the Vail Town Council Making Findings on the Appeal of Case B24-0412, and Affirming the Decision of the Building Official1 RESOLUTION NO. 13 Series of 2025 A RESOLUTION OF THE VAIL TOWN COUNCIL MAKING FINDINGS ON THE APPEAL OF CASE B24-0412, CONCERNING A BUILDING PERMIT APPLICATION FOR 3070 BOOTH CREEK DRIVE, VAIL, COLORADO, AND AFFIRMING THE DECISION OF THE BUILDING OFFICIAL WHEREAS, the Reggie D. Delponte Residence Trust 1 and Reggie D. Delponte Trust 2 (collectively the "Appellant") own the real property located at 3070 Booth Creek Drive, Vail, CO, more particularly described as Lot 7, Block 3, Vail Village Filing No. 11, Vail, CO (the "Property"); WHEREAS, the Appellant requested a building permit for an addition to the residence on the Property, in case #B24-0412 (the "Application"); WHEREAS, on December 4, 2024, the Town's Building Official denied the Application; WHEREAS, on December 18, 2024, the Appellant filed an appeal of the Building Official's decision, which appeal is governed by § 10-1-13 of the Vail Town Code; WHEREAS, on March 4, 2025, the Town Council held a properly-noticed hearing on the appeal, and the Appellant was provided with an opportunity to present evidence in support of its appeal; and WHEREAS, following the hearing, the Town Council directed the Town Attorney to prepare a Resolution with written findings regarding the appeal. NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL: Section 1. Findings. Having heard and considered the evidence and arguments presented by the Appellant, the Appellant's counsel and Town staff, the Town Council hereby finds and determines as follows: a. Pursuant to the Rules of Procedure adopted by the Town Council at the public hearing, which rules were approved by the Appellant's counsel prior to the public hearing, it was the Appellant's burden at the public hearing to prove by a preponderance of the evidence that the Building Official's decision was incorrect. b. It is undisputed that the Appellant has installed and/or maintained numerous encroachments within Tract C of Vail Village Filing No. 11, which is adjacent to the Property. These encroachments are located in the stream tract for Gore Creek. The Town owns Tract C in fee simple, subject to easements of record. 2 c. It is also undisputed that for more than 12 years, the Town has requested and demanded that the encroachments be removed from Tract C, but the Appellant has refused to remove them under any circumstances. The Appellant's refusal to remove the encroachments from Town-owned property has resulted in many years of litigation, at a massive cost to the Town and its residents, and it has also resulted in the deterioration of Gore Creek. d. Vail Town Code § 12-3-9(B)(3) states as follows: "The Town shall not issue a building permit if, at the time of application, the applicant maintains any activity on any property within the Town that is not in full compliance with all applicable requirements of this Code." e. On December 4, 2024, the Building Official denied the Application, stating that "the Town cannot issue a building permit, because the applicant continues to maintain an unlawful trespass on Town-owned property that is adjacent to the property that is the subject of this application." f. On December 18, 2024, the Appellant submitted its appeal under Vail Town Code § 10-1-13. The Appellant's counsel agreed to bypass the interim step of a Board of Appeals decision, so the appeal proceeded directly to the Town Council under § 10-1- 13(B). g. As the basis for its appeal, the Appellant alleges that the encroachments on Tract C do not constitute an unlawful trespass, because they are authorized by a private covenant amendment enacted by some of the residents of Vail Village Filing No. 11 in 2017 (the "Amendment"), without the Town's consent. The Amendment purports to authorize encroachments on Tract C, again without the Town's consent, in direct violation of the Town's stream tract regulations. h. In 2016, prior to the Amendment, the Colorado Court of Appeals determined that the encroachments on Tract C constituted a trespass as a matter of law. The Appellants did not appeal the 2016 decision, so that decision remains the law applicable to this case. i. In 2020, the Colorado Court of Appeals addressed the relevance of the Amendment to the damages being sought by the Town for such trespass, in an entirely different case, and expressly stated as follows: "Assuming, without deciding, that the Amendment is valid, we turn to how the Amendment might affect Vail's claimed damages for fair market rental value and restoration." (emphasis added). The Appellant's counsel has repeatedly ignored this language in their legal arguments. j. The Appellant's counsel ask the Town Council to rely on language from a 2018 district court order regarding damages for the pre-2017 trespass. However, the 2018 order is no longer relevant or controlling, because that order was appealed, and that appeal resulted in the 2020 Colorado Court of Appeals opinion referenced above. k. The Appellant's counsel also ask the Town Council to rely on a 2022 district court order in a case regarding the Design Review Board's conditional approval of the 3 proposed addition to the residence on the Property. However, in that case, the Appellant's counsel never asked the district court to rule on the validity of the Amendment and the district court did not so rule. l. Neither the Appellant nor its counsel introduced any evidence at the hearing of an actual, binding, enforceable ruling from any court finally determining that the Amendment is valid. The Appellant and its counsel clearly have access to courts, having litigated against the Town about the Property for almost 10 years, so they have had ample opportunity to obtain such a ruling, but have failed to do so. m. At the public hearing, it was not the Town's burden to produce evidence that the Amendment is invalid – instead, it was the Appellant's burden to produce evidence proving that the Amendment is valid. Because the Appellant failed to introduce any competent evidence that the Amendment is valid, the Appellant failed to prove by a preponderance of the evidence that the encroachments on Tract C do not constitute an unlawful trespass or that the Building Official's decision was incorrect. n. The public health, safety and welfare will not be served by allowing the Appellant to obtain a building permit while continuing to maintain an unlawful trespass on adjacent Town-owned property, especially when the unlawful trespass has caused and will continue to cause damage to Gore Creek. Section 2. Decision. Based on the foregoing findings, the Town Council hereby affirms the decision of the Building Official to deny the building permit in Case #B25-0412. INTRODUCED, READ, APPROVED AND ADOPTED THIS 18th day of March, 2025. ______________________________ Travis Coggin, Mayor ATTEST: ____________________________ Stephanie Johnson, Acting Town Clerk