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HomeMy WebLinkAbout2025-25 A Resolution Authorizing the Exercise of the Town's Eminent Domain Authority to Acquire and Unencumbered Fee Interest in Certain Open Space1 RESOLUTION NO. 25 Series of 2025 A RESOLUTION OF THE VAIL TOWN COUNCIL AUTHORIZING THE EXERCISE OF THE TOWN'S EMINENT DOMAIN AUTHORITY TO ACQUIRE AN UNENCUMBERED FEE INTEREST IN CERTAIN OPEN SPACE PROPERTY FOR THE PROTECTION OF GORE CREEK, WHILE RESERVING EASEMENTS FOR UTILITIES AND PEDESTRIAN ACCESS WHEREAS, the Town possesses the power of eminent domain pursuant to Article XX, §§ 1 and 6 of the Colorado Constitution, §§ 1.2 and 13.11 of the Vail Home Rule Charter, and C.R.S. §§ 8-6-101, et seq., 31-25-201, and 38-1-105; WHEREAS, the Town may exercise the power of eminent domain for the public purpose of acquiring open space and protecting water quality and riparian areas; WHEREAS, the Town is the fee owner of three tracts (tracts B, C, and F) of vacant land adjacent to Gore Creek as established by the Vail Village Eleventh filing and more particularly described in Exhibit A, attached hereto and incorporated herein (the "Subject Property"); WHEREAS, in 2012, the Colorado Department of Public Health and Environment provisionally listed Gore Creek as a 303(d) impaired waterway for failing to meet state standards for aquatic life; WHEREAS, thereafter, the Town studied the causes of Gore Creek's degradation and developed the Gore Creek Strategic Action Plan (the "Plan"), which was adopted by Town Council on March 15, 2016, to rectify the harmful conditions leading to Gore Creek's degradation; WHEREAS, the Plan identifies three primary causes of degradation related to Gore Creek: 1) pollutants from land use activities; 2) drainage from impervious surfaces; and 3) loss of riparian and streamside vegetation; WHEREAS, the Plan identifies a variety of actions to restore water quality in Gore Creek, relevantly including the requirement that encroachments on Town property resulting in degradation of the water quality be remediated to pre-development conditions; WHEREAS, since 2016, the Town has budgeted approximately $1,000,000 annually in an effort to remediate the degrading factors identified in the Plan (collectively, the "Restore the Gore Project"); WHEREAS, thus far, the Restore the Gore Project has included: improving stormwater treatment; changing Town landscaping practices; hosting educational events and campaigns; implementing cost-sharing programs for restoration of riparian habitat on private property; adopting Ordinance 2015-6, which protects stream tracts in the Town; adopting Ordinance 2022-6, which establishes setbacks from Gore Creek and its 2 tributaries; planting more than 26,000 native trees and shrubs in riparian areas on the nearly 14 miles of Town-owned riparian area; eliminating hundreds of social trails and rehabilitating trampled natural areas; designating alternate access points to Gore Creek; and reducing the number of illegal encroachments on stream tracts from over 100 in 2016 to approximately 16 in 2024; WHEREAS, despite these significant efforts, the Town has been prevented from effectively implementing the Restore the Gore Project on the Subject Property, because certain property owners have attempted to encumber the Subject Property with a private covenant; WHEREAS, more specifically, in 1971, the Subject Property became encumbered with a private covenant established by a majority of the owners in the Vail Village Eleventh filing that requires the Subject Property to be maintained as vacant, undisturbed, and unencumbered open space in its natural condition, but allows ingress and egress through the Subject Property, utility improvements that do not disturb or alter the surface of the Subject Property, and the riding of horses, ponies, donkeys and mules; WHEREAS, in 2017, a majority of the property owners in the Vail Village Eleventh filing, ultra vires, without consent from the Town, further encumbered the Subject Property by adopting an amendment to the protective covenant that would allow property owners adjacent to the Subject Property and within the Vail Village Eleventh filing to landscape the Subject Property and place benches, patios, and other features on the Subject Property (the "2017 Covenants"); WHEREAS, the 2017 Covenants are in direct violation of the Vail Town Code related to the protection of stream tracts and setbacks from Gore Creek; WHEREAS, the Town has been unsuccessful in enforcing the Vail Town Code on the Subject Property, because certain owners in the Vail Village Eleventh Filing maintain that the 2017 Covenants allow encumbrances on the Subject Property despite the Town’s ownership of the Subject Property and despite the Vail Town Code providing otherwise; WHEREAS, the 2017 Covenants have resulted in a variety of harmful impacts on the Subject Property, including: the use of landscaping chemicals, both insecticides and herbicides, that have killed native plant, insect, and aquatic species in and around the Subject Property; landscaping that is non-native that has invited invasive species on the Subject Property; the removal of riparian habitat; and the construction of various structures in riparian habitat (collectively, the "Impacts"); WHEREAS, the Impacts have resulted in degradation to the water quality in Gore Creek and will continue to do so; WHEREAS, the Impacts prevent the Town from meeting the requirements of the Restore the Gore Project; WHEREAS, the Colorado Parks and Wildlife Commission designated Gore Creek between its confluence with Red Sandstone Creek and the Eagle River as Gold Medal 3 Water, which contributes to Gore Creek's status as a world-class fishing destination that provides significant economic benefits to the Town; WHEREAS, Gore Creek's Gold Medal Water status depends upon abundant and undisturbed native riparian vegetation living in and thriving along Gore Creek; WHEREAS, the Impacts jeopardize the Gold Medal Water status of Gore Creek and the related fishing and economic benefits by eliminating native riparian vegetation and habitat and degrading the water quality in Gore Creek; WHEREAS, the Town seeks to acquire unencumbered title to the Subject Property and to extinguish the 2017 Covenants on the Subject Property; and WHEREAS, the Town's acquisition by condemnation of an unencumbered fee interest in the Subject Property is necessary for the preservation of Gore Creek, which is an important public purpose. NOW THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. The above recitals are incorporated herein by reference and adopted as findings of the Town Council. Section 2. To effectively implement the Restore the Gore Project and preserve Gore Creek, the Town Council hereby finds the acquisition of unencumbered fee title to the Subject Property will serve a proper, public and municipal purpose and use, and that such acquisition is necessary and essential to this public purpose and use. Section 3. The Town Council hereby declares its intent to acquire an unencumbered fee interest in the Subject Property, subject to the reservation of an access easement for pedestrians and utilities as more particularly described in Exhibit B, attached hereto and incorporated herein by this reference. If necessary, the Town Council hereby declares its intent to acquire the Subject Property through the exercise of the power of eminent domain. Section 4. The Town Manager, the Town Attorney, the Town Manager’s designated representative(s), and any and all persons retained or employed by the Town in the prosecution of this matter are hereby directed to comply with all notice and good faith negotiation requirements set forth in C.R.S. § 38-1-101, et seq. Section 5. The Town Manager is authorized to make reasonable and good faith offers to purchase from the affected landowner(s) the necessary interest in the Subject Property and the Town Manager is further authorized to execute agreements for the acquisition of the same. Section 6. If, after engaging in good-faith negotiations, the Town is unable to acquire the necessary property rights, the Town Attorney and the Town's special counsel are hereby authorized to institute and prosecute eminent domain proceedings in the name 4 of the Town to acquire an unencumbered fee interest in the Subject Property by condemnation. In the prosecution of any eminent domain actions to acquire a fee interest in the Subject Property, the Town shall have and retain all rights and powers lawfully delegated to it by Article XX, §§ 1 and 6 of the Colorado Constitution, §§ 1.2 and 13.11 of the Vail Home Rule Charter, and C.R.S. §§ 8-6-101, et seq., 31-25-201 and 38-1-105; Section 7. If eminent domain proceedings are instituted, the Town Manager or designee, in consultation with the Town Attorney and the Town's special counsel, is authorized to retain such expert witnesses, including appraisers, as the Town determines are necessary for the eminent domain proceedings. Section 8. The Town Manager or designee, in consultation with the Town Attorney and the Town's special counsel, are hereby specifically authorized to make such reasonable or necessary amendments and corrections to the terms and legal descriptions of the property interests to be acquired, including authorization to include such additional or other property rights necessary or desirable for the Town. The Town Manager and Town Clerk are hereby authorized and directed to execute an acceptance of interest in real property when acquired. Section 9. The Town Council hereby finds, determines and declares that this Resolution is promulgated under the general police power of the Town, that it is adopted for the health, safety and welfare of the public, and that this Resolution is necessary for the protection of public convenience and welfare. The Town Council further determines that the Resolution bears a rational relation to the proper legislative object sought to be obtained. Section 10. If any clause, sentence, paragraph or part of this Resolution or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect application to other persons or circumstances. Section 11. This Resolution shall become effective immediately upon adoption. INTRODUCED, READ, APPROVED AND ADOPTED THIS 20TH DAY OF MAY, 2025. ______________________________ Travis Coggin, Mayor ATTEST: ____________________________ Stephanie Johnson, Acting Town Clerk 5 Exhibit A Subject Property Tracts B, C and F, Vail Village Eleventh Filing, Town of Vail, County of Eagle, State of Colorado 6 Exhibit B Easement Reservation The Town hereby reserves a perpetual, non-exclusive blanket utility easement over and across the entire property described in Exhibit A, for the purpose of installing, maintaining, repairing, and replacing underground and above-ground utility lines, cables, and related equipment, including without limitation water, sewer, gas, electric, and telecommunications lines. This easement includes the right of ingress and egress to access the easement area, and the right to use adjoining portions of the property as necessary for the performance of work related to the easement, provided that such use is kept to a minimum and the property is restored to its original condition as soon as practicable. The Town hereby reserves a perpetual, non-exclusive easement for pedestrian access over and across the entire property described in Exhibit A for the purpose of providing pedestrian access to, from, and across the Property, which shall be limited to foot traffic. Adjacent property owners shall not obstruct or interfere with the use of this easement by the Town or others entitled to its use.