HomeMy WebLinkAboutVAIL VILLAGE FILING 1 BLOCK 5C LOT D E BRIDGE STREET BUILDING FKA CASINO 1978 LEGALTOTryru OIT
AppslmoAs.iloN trOp
coN rDil$r]O N Ar ilJ$r prE[MsJl*".
ffi afmfui s:np mfle:s Gfuq-Esbe*ia i:";ffi-p"- r:r-ssffis ffis€illEH Esfis s:ffi ffi3 ffi3 [
* {b\3''ftApplication Date September 29, IgjB
Publication Date
Public Hearing Date
Brandess-Cadmus Real Estate, IncName of Applicant
Name of Owner if
$!ailing Address
different from Applicant
Box 1105
Telephone 47 6-L450
Legal Description:n h^E+ ^€_ .r1 ycr! L \.,r rI,OEB & C ,
See attached
Va i1 Vi.1laqe
, Filing First FilingBlock 5-c
exh ibit
property s unplatted submit metes and escription as E bir)
Application is hereby ma-de for a conditional use perrnit to allorv
operation of a real estate office
1na commercial Core I Zone District
( Mark Cadmus )
APPLICATION M1,1, NoT BE ACCEPTED UNLESS ACCOMpANIED BY THII FOLLOw*ING:
4. :geactne f ee o t S5o . 0o ,
k2. glttr plrn, floor plall lnd other docume8ts !.s requlled by Zoning Adrllnistraaor-
3. A Itst o{ the o(trcrs o! the prol)crllc.s $ithin 300 !eer ln. SLngl('-F3ni!:, nesldential, T'.to-FlrnLly RestCenrlal,
or T$q-FamiIy Prtrnlrry/Secon(lary Residentlal Zone Dlstrict: or adJrcfn! !o the subjec! ploperty in &ll other eone
dlstricts. The owncrs list shall include the nlme cf 3tl ov,ners. tl:eia addtesses. 3nd a general'descripr:ion oa
the property owned by eaah. .Accodrpanying the Ilst sha.l1 be statnped, :rddrcssed elll'elopes to each o'rner t.r be dsed
for the n.riling of the Notlce o( licarroq.
4. A d€scriptlon o( the precise natur.c ol the proposed use r.nd lts oper::rtllrg characaerlstlca, and Fessuaes proposed to
oake tbe use comp&tlble 1{ith other properties 1n the vic.inity:(Use the Ioliolylng c.lterir)
. r.. Relatlonshlp and lrnprct of th€ use on develooarent obJecrivcs ot the to'rn:
b. Eflect of th!'us.r on LLghr and air. dlstrtl,utirn of poluLatron. transportarion licilitles, !nd otheI.
publLc !Jcllities rnd public f:!,cilltl.es nL.cdsi
c. Effect uFon !rallic. wLth partLcular r4lerencu to confestlorl,'rutomotlve ildd pedesttain satett ;tnd
codvenleoca, tratflc llorv and control, !ccess mineuverirbll1tv, tnd rer.ov.r1 of snow lron',oc streets
8'nd parklng areas:
d. E!lect upoa !hc charilcrei ofthe area l!l wtrich tbe proposL.d use ls to be locrted, locludloB the 6caIe
rdd brr'lk ol thl} proposr-.d usc lD relfltlon to surroundlng us.!s.
I
gnature o App 1i can t
EXHIBTT ''A''
Legal Description: Condominium Unit 4, THE BRIDGE STREET
CONDOMINIUM, according to the Condo-
minium Declaration for The Bridge Street
Condominium recorded in Book 259 at Page
669. and the Map thereof recorded in Map
Case 2, Drawer B, and in Book 259 aE
Page 670.
I
Application to Town of VaiI for Conditional Use Permit
for Condominium f 4, Bridge Street Condominiums, VailrCO.
Adjacent Property Owners :
.,;1 . Bridge Street Condominium #1Aztec Cornpany
c/o Savage, Savage & Brown
2809 N.W. Expressway
Oklahoma City, OK 73LL2
l 2. Bridge Street Condominiurn * 2
Warren K. Pulis & Helga Pu1is
Box 999, Vail, CO. 81657
t3. Bridge Street Condoninium + 3D. Telleen & James Cotter
Box 385, Vai1, CO. 81657
/4. Bridge Street Condominium # 4
Brandess-Cadmus Real Estate
Box 1105, Vailf CO. 81657
"/5. Bridge Street Condominium # 5
Casino Partners, Ltd
601 East Bth Avenue
Denver, CO. 80203
Adjacent to the South
\1. PA. Cramerus & Joanne H. Cramerusc/o Plaza Lodge
Box 68, Vai1, CO. 81657
Adjacent to the East
l-. Town of Vail
Bridge Street
T0wll 0F vAIL, C0L0'IAU0
.l97uusll'tESS
LICETiSE ApPLICATI0II
(License required under Ord. #1-761
o
Nane of Business
Mailing Address
Vail Location (
Business Phone No.
Local lrlanager? s Narne
State Salcs Tax Numbei
Number of Employees
Summer: Part-tine
Full-time X
Type of Business:
Full-time X i
Retail Sales tspecify)
Restaurant/Bar
Lodging
Service (Specify Type)
lotal area occupied by business €OA s9. ft.
Pleai;e jndicate ownership status: 'Individua1- Partnership
-
Corporation '( - -
ust nesS
l,linter: Part-time
List Pbrtners or Cori:orate Officers/Title
deo
o"-.'2 ,zc/e<.s /e12.9 Zt-lef
Addre s s Phorie No.>4<s.tHelzt 3a4 ree8 -ETV-:
- /'j/.c //
/8y7
orner operated by:,/'1 /fraZ/trtat 4r;7e t9d..9/ t-/tZC,
you ave a ran'c .r.ce outsrde crty ]lmr"ts
address:If
Nll"VE
eou eofA 1t 10na usiness Locations In Va
STREET ADDRESS ]''AILING ADDRESS PHONE NO.
r)enrlr3 ua tc E r'::-Y"fi>g
197C License # 2-{.2-o
l{eal tlr'
Fi rc
Zorr i i
Bui I di
Plcasc' l'{a i I Appl icat ion to :
Tou'n Clcrk. Box 100
, Vail, Co. B1657 w
t{I au*rr..':\iri.i.r r,,r4 i).LciAs".:,rr"n I.!l
?i],8 BI).IDGE COJiDCIIiIII'}1
Ttr.is Decraraticn of covena'ts, conij-ticns ancl Resbrictions,
he;:ei-raf ter calfecr "iJecr-aratio:r", is nace ancr executed in EagJ.e
Ccunt;, coioradc, t:tis Q!! d.ry of Septenber , Lg77, b7 Casinc
!J:rtr:ers, LcC., a coro:ado.!-i-mitec pait,i-,ership, he.,:einafter carre.d
"i)':clarant", PUr5ti:at to the prorrisions cf 1'he Colo::ac.o ,,Ccndc-
Iti-nj:un O'.,-rnership Aci,, as auienctecl:
l'liIERiiAS, I)ecr.ara't 'i s the o;"'re:r of certain rear property
-i-:-. 'Lhrr Totrn oi Va.iI, CcJ_c-rac.t,r, n:ore parLecu.Larlir clescribrtcl as.
'io'l l-ows:
l'(i:
sT3.E-i?
A .oart of i,ots ind__l_,_BJ-oc*__S-C. Vaj.l Vi11a9.er ?j.;si,PilinE, coun[ii ol=aaqlel-;"r., nore particularty,J,es-cribed. as foll6ws:
Cop:neirei:rg at lhe Southwest, coxn.:r of Lot F, tslock 5_C,V,iiL Viilage. First.l'iLingi !fr="r" Nori,her-l1z alorrgr .Ehei'Iestert;y f.ine of said Lor r, oiia 1i";-t;i;i cJnnron tot.he.Easterly line of said, i"t-c, a <listance oF 10.?6 €e.:t't,c tire Trrre point of _tseg.inningi thence contriiing alcr,g thea''ore:said course, a cisi.a";; ;i 5r.4g feet,. thencre on an411';1e to i:.,\e let-t of 73.r4g'it;; , o ciistanse of 0.73 feet;Urence on an ang-le to the-f"ic of 10l,ll ,?-5.,, a clistenceof 51'24 feet; ihence or'r-u"'-.i,r]." to trre left of 60o13,3r.',.r dj.siance oi i!.C_Z feet, *"r"--i;. iess, to ihe Trllc pctni_ ofUeglt:ilingr B.ccording to tin-ru"r"ded pla,c ti..ereof ,anC.
Lets,.p?-n-._F. ijl.ccl< 5-C, Veii r/illaEe, fi.rst fili::g, C.furitvoi E''rle, s';ate of- cor-cracl0, except t,hat ^car:t ccnve.ye.l tcIh.. nll:o Corapairy_by docr;.reorr-iJ.oraed Janca::1, LI, 196b, inEool'- !38 at paEe 13, more paiticura;ry cescrioed ir.s for_.lcus:
.t.\ part of Lob I. BLocx 5-C, r,rail Viliage, First FIJ_!nE,Cou::i;r o: EaEle, Stata o: Cc:.,lra,Jo, beino inoce par.dicr:lar:y'-lesc;::bed sls fol'tows :
Connencing at, r_he So,:thraest ccrner of saiii Lot F; thenceEa.ste.i:.ly 9r]on.,i the souiherfy-ii"e of sa.ic, Lot F, a cti.s-'t.arrca of 27.95 feet to a point c_i irrtersecti._.n vrith theI"'esterl1' side of-a shainvly-u.ra-.rt" ?rue point of Beginniirg;thenee orr an ansle i.o the iei!-,rr gG"0g;sa;-ur.a-"',io*g sa.icI'[escerry side' i d,lstanco ;i-;.60 reet to the riortherly sr3eof said stainuav; che:..ce ""-u"-angre to tire right of 90o00,0C,,a-d alcng said l-tortherly uia"l J'diutr,.,"e of 20.05 feet to:1" E?u.l?rl.}' side oi said itui*".V, thence on e-n an.rta r-.1the risht of eD"0g'0g',. and "i;;; ^-caid Easr"ri1, iii*:*; "'distance of r .55 feer ro a point "I-r'rl'E;;ii;rii .liae ofsaid Lot F; ihencc. o:1 an i,lii""i" the ric_rht of g600g,56,,and alons saic sourherlir ii;;; J'ai"tu*." "r-zo.io feer,Irore or less, to. the trle point of 3eginnhg (cont,aining7.7i8 sguare fee.t o.r 0.179 ;;;.", F.ors or less)
Together: uith hhe right to use the road,s, streets. d,rives,1anes, places, circlis
"r,.A uii.f*r"y.= u= shc.,wn o* s.aid, plaifor a;cess to an,J_,tron tio-;;;;;;"., wliich right shatt beap;?u'ten.r-nt to anc run with the rand u-"1-":,iii r],ri be cor:_s;-rr'red to be personai co tire-;;=ly or parcies of rn-* secor:.d,Fa:t.
1, ti l';' "
.i-,
T'HEREAS, Declara:lt is the or+ner of a build,ing and certain
other improvements heretofore ccnstructed. upon the above-descrrberf
iear prcperty and it is the desire and intention of the Declaranc.
co di-vj-de the buirding inLo cond.orniniums and to serr and corrvey
the sarne to various purchasers, subject to the covenants, condi-
tions, and restrictions herein reserved. to be kept and observec;
and,
*HEREAS, Decrarant desires an. intend,s by f*ing this
Decl-aration to submit the above-d.escribed property and the buird-
ing: and ob'her improvements constructed thereon, together 'ith all
appurtenances thereto, to the provisions of the aforesaid, acb as
a coadom'inium and to impose upon said property mutuar.ly benefi-
craL restrictions under a general plan of improvement for the
benefit of arr of the condominiums and the owners thereof,
Nolf, THER-EF.RE, the Decrarant does hereby pubrish and
<iecLare that the building described, above is her-d anc shari be
held, con.reyed, hypothecated, encumbered, leasecl, rented, usec,
oecu,oied, and improved subject to the folloiving covenants, con-
cliij.ons, restrj-ctions, uses, limitations and. obligations, alt
sf vrh-i-c:jr are decrared and agreed to be in furtherance of a plan
for the iir'.prcv-onent of said buird,ing and, the division thereof
into condominiums, and shall be deemed to run with the land, anrr,
shall be a burden and a benefit to Decrarant, its successors and
assigns and any person acguiring or owning an interest in the
buj-lding, their grantees, successors, hej-rd, executors, adrninis_
trators, devisees and assigns.
ARTTCLE T
DETINITIONS
certain terms as used, in this Declaration sharr be defineci
as forLows, unless the context crearry indicates a different.
rneaning therefor:
1.1 "Declarant" shal1 mean
ColoraCo lirnited partnership, which
Declara bion;
Casino Partnersr f,td., a
has made and. executed this
-2-
\
L.2 "Declarar,ion" shall ,mean this instnrnent b)z rihich
?h* Brrdge street co;:do.miniu:n is established and is to be govern:d,
as -orovided for und.er ilre coiorado condominiun or.mership Ac!;
r'3 "Bui-icing" shail mean the entire parcer of rear prop-
erty referfed to in this Declaration to be clivided into condo-
miniums, includ,ing all s'tructures thereon;
1'4 "l'Iap" shatr- mean the r4ap of The Brid.ge street conio-
miniuin vrhich vrill be filed for record by Daclarant;
1.5 ,'Unit', shalt mean one indivi.ual air space unit
shown on the Map. The bound,ary lines of each Unit are the
ior surfases of its perimeter rvarls, bearj.ng wa}1s, froors,
ceilings , and windorqs;
1.6 I'coftunon Erements" shalr mean arl rar:d and, arr portions
of the Buitding not located within any unit; and. arso includes.
bui. not by rvay of linitation, rcofs, foundalions, pipes, d.ucts,
frues, chuLes, cond,uits, wires and other utirity insiarrations tc
the o'+-reis, bearing walls, perirneter warls, columns and gi:ders,
to the incerior surfaces thereof regardless of rocation, stair-
i'/ays, halluays, foyers, robbies, 'alkways, arl installations of
po:rer, iightsr gas, rrct and, cold water and heatipg existing .tor
cornncn use and arl 0ther parts of the Suilcling necessary or coil-
ve..rient to its existence, maintenance and safety, or normarry
in ccinnon usei
!.7 "Limited conmon Erements" shall rnean those parts of
the common Elements r.rhich are either rirnited to or reserved fcr
the exclugive use of an ol.rner or are limited to and reserved for
tire excrusive use of more than one but fewer ihan arr of the
Or,"lners;
l-8 "condominiurn" shalr mean the entire estare in the
real ..oroperty owned by any owner, consisti.ng of orvnership of a
separate interest in a unitr dr-qlqiyiggli11terest in *re conmon
Elements and the right to the excrusive use of any Limited connon
Elements assigned to a Unj.t.
1.9 'rOwner' shall mean any person lvith an ownership
interest in a Condominiurn in the Buildinq;
AS
inter-
-3-
1.10 "I,oard. of llanag'brs" :bhall
mean the governing body
of the Association, as estabrisired. in Articre 4.r- hereof;
1-11 "r'Ianager" shall mean trre person or firm designatecl
by tire Board of Managers to nanage the affairs of the Association;
1..1-2 "Mortqage" shall mean a deed, of trust as r,rel] as a
nortgage ol similar security instrument;
1.13 !'r4ortgagee" shalr mean a beneficiary under or holder
of a tieed of trusb, as'erl as a mortgagee of a mortgage or sirni-
lar sec'+rity instrunent.
1-14 "Record" means to file of record, with the o€fice of
'bhe '3lerk and Recorder of Eagle County, Colorado;
1.15 "cond,oninium Act" shall rnean the colorad,o cond,crninium
Orvnership Act, C.R.S. 1973, SS 3g-33-l0l_ to 109, as amended.;
1.16 "Countyu shall mean Eagle CountT, Co1orad,o;
1-17 "Association" shall mean The Brihge stree.t, cond,o-
mi.nirrm Association.
ARTICI,E 2
CONDOI,IINIUM UNI?S
2.L D:-vision ini:o Cond,ominiuqs. The inprovensnts are
herebv dlvicied into the five separate estates id,entifiec in
Exhibit, A., each of which consists of (i) the Unit, vrhich shatL
be orvned in fee simple, (ii) the est
Unit as set forth
in Exhibit, A, and (iii) the right to the exclusive use oE anv
Limited Conmon Element assigned, to the Unit.
2-2 concominium Map. A Map will be filed for record prior
to the closing of any sale of a cond,ominium in the Buirding. The
ltap shall depict and show at least the for.rowing: the regal
description of the land and a survey thereof; the i.ocation of
the improvements both horizontally and vertically; the thickness
of the comnon warrs separating the units; the rocation of each
unit an'd the unit designations and a}l common Elements and Limited
cornmon Erements. The Map sharr contain the certificate of a
registered professicnal engineer, rand surveyor or ricensed
-4-
c1-rchitect, certifyingr that tl:e ttap substanlially depj.che tlre
l-ocartion a:ri the horizontal- ano vertical measurenents of the
jr,,.i rn..i-- rr.^ r'-.i !^ i.hr: orar:r*-icns oi the floors and ceilinqs!q.rr'\rr...ry f -i-!: u.rtr _J / srr.v r_+=vr.ir_iCIIS OI Eng ItCOfl
as constructec, anc that such llap vras prepared subsequent t<>
sr-rbstant. j.al cc:irple tion of the i.:nprovenents.
2.3 Lirnited.Cornnojr Elernents. Certain portions of the
coinnoi:, Elenent.s which are accessible from, associated, vith and,
i','hich acjoin particular units are reserved. for the excl-usive use
cf the indivicual orvners of the respec'tive uniis. Liraited com-
non Slenenis sc reserved shaLl be identified, on the l,iap by unit
nuinber. lio reference to any such Linited co:nrnon Elem.ent need
he made in any lease, assignment of lease,. sublease, r1eed of
trllsb, mortgage, contract, deed or other inst,rument affectincr
the Cond,ominium.
2,4 Description of a Condoninium
2.4.I A contract r,rritten prior to the recording of the
Itirp inav regally describe a concominium by its identifying unit
nurabel followed by the name of this condominium reith further
;:eference io the Declaration and Map to be filed. for recorci.
2.4.2 Subsequent Lo the record filing of.the .rrlap, everlr
contiact, lease, Fssignnent of lease, sublease, rnortgage, Ceed
of trust-, encu:rlrrance, rvill or any other instrunent may d.escribe
i:he ccndomlnium acccrding to the folrowing d,escription, to-,rrit:
Description
-.i--.--..=-
Condominir:rn Unit
according to the
' , The Bridge Street, Condominiu-cr,
Condoniniurn Declaration for llre
Brid,ge Street ConCominium recorded. in Bcok JSf
at Page _L6^9_, and the i4ap thereof recorded in ryap
Case 2, Drawer B. il Book Z5g at page 6?0.
2.4.3 Every such description shall be deemed to includ,e
and, describe the entire concloninium, ineLuding the appurtenant
undivided inte::est in -'he common Erements, exclusive rlse of any
timited comrnon Element assigned io the unit, a non-exclusive
easenent for ingress anc egrecs to and from each unit,, and all of
-5-
the other rights, easements', ol:ligations, limitations, covenants
anC resErictions as prov.ided in this Declaraticn.
appurte*ant undrvided interest in the common Elements and the
exclusive use of an1, timited comm.on Element assi-gned to the ti'it
shalr together coinprise one condominium, shalr be inseparabre and
may be conveyeC, leased, d.emised, transferred, assigned, sub_
leased or encr:nbered only as a Condominium.
Pg:rty.. The common Elements sharr. be owned. in cor'mon and shall
remain undivided, and no righL of act!)) for partition or dirri-
siorr thereof shatr or does exist. -
'//t I -+ r lt ' aL+1a-t io do fhrs
2.7 Basements for qncroachments. If any part of the
common Elements or'Limited. cornmon Elements encroaches. or sharl
hereafter encroash upon a unit, an easement for such encroachment
and for the maintenance of the same sharr and d.oes exist. rf any
pari of a unit eneroaches or shalr hereafter encroach rrpon the
commo.' Elements' or upon another unit, the owner of that unit
shall and does have an easement for such encroach:nent and for
the naintenance of the same. such encroachments sharr. not be
considered to be encumbrances either on the cofinon Elements or
a unit' Encroachments referred to herei.n include, but are not
limite.l to, encroachments caused, by error in the originar con-
struction of any improvernents., by error in the t4ap, by settling,
rarsing or shifting of the earth, or by changes in position
caused by repair or reconstruction of the Building or any part
thereof; provid,ec, however, that i.n no event shall a varid ease-
rnent fo:: encroachment be created in favor of an owner or owirers
if said encroachnent occurred due to the wirrful conduct of said
Owner or Owners.
2.8 All taxesr &ss€ss-
ments and oiher charges of
cal subdivision or of, any
other taxing or assessing
the State of Colorado or of any politi-
special improvenent district or of any
authority shall be assessed against and
-6-
2.5 In:eparability of a ConConrinium. Each Unit, the
2..6 Non-Partitig..bll.!y_ot Comnon ELements and ReaI
colLected on each Condcrninium scparateli, and not on the Euild_
ing as a vrhore, ancl eacir condonriair-rm shall be carried on the
tax record.s as a sdparate and d.istinct parcer, For the purpose
of valuation for assessmenE, the valuation of the common El.emenEs
and the Limited, cominon Elements shalr be apportioned among the
condoniniuns in propcrtion to the fractional or percentage un-
dividec i.nierests in the cornmon El-ements. The lien for taxes
assessed cn any conrfomiriu:n shall be confined. tc that coicornin-
iurn. Ilo forfeiture o.r sale of any condominium for deli.nquent
taxes' assessments or other governnental charges shal-l d.ivest
or in any way affect the title to any other Condornj_nium.
2,9 Notice to Asse.lsor. The Declarant shalr deriver to
the countl'Assessor a writ,ten notice as required by the conclo-
minium Act, setting forth descriptions of the condominiums, and
shall furnish all necessary information with.- respec! to s*ch
apportionment of valuation for assessment.
2.10 }lechanic,s Lirr,". No labor performed. or materials
furnished. for use in connection with any unit. with tire consent
or at the reguest of the o'aner thereof or his agent, contractor
or subcontractor sha11 create any right to fire a statement of
mechaaic's lien agrainst the unit of any other or*.r n6t expressrlr
consenE,ing to or requesting the same or against any interest in
the c(:runon Elements except the undivided interest therein appur-
tenant to the unit of the owner for whom such labor sha1l have
been performed and such rnaterials shall have been furnished.
Each owner shall indemnify and hold harmless each of the
other owners from and against riabirity or loss arising froro the
ciaim of any lien against the Unit of the Owner, or any part
thereof, fo:: labor perfonned or fo; materials furnished in work
on such owner's unit- At the writlen request of any owner or
any l'lortgagiee, the Board, of Managers shall enforce such indern-
nity by corlecting from the owner of the unit on which the
labor was performed, and materials furnished. the amount neces-
sary to <lischarge any such rien, and arl costs incidental thereto,
-7-
inclr.rding aticrneys' fees. If
I'lanagers may collect the sane
collection of assessments for
pai-d, the Board of
provided herein for
diseharging the
rr,.r+ ^F^rrrh F 1r'rlv9!,!vl||tJ|.-J
in the manner
the purpose of
ARTICLS 3
other provisions of the Declaration, each owner sharr have a
non-exclusive right to use and enjoy the cor.r'lon Elements, con-
s:'stent rvith the rights of use and enjoynent of oilrer otrrners.
Except as specifically provi.ded, for in sections 3.7 and 3.g
hereof, the percentage of the undivided interest of each owner
in the Common Elel1gqg as expressed. in Exhibit A shall_ have a
permanent character and shall not be altered. without th
3.2 Subject to the oEher pro-
visions of this Declaration, each owner sharl have furl and
complete dominion of his unit, and each owner shatL haue the
exclusive right to use and enjoy the same.
3.3.r For'maintenance purposes, an oivner shalr be obr.i-
gateid to keep in good repair and condition the non-snppor:ting
r'.'d'11s within his unit, the materials such as, but not. limitecl to,
plast,er, gvpsun dry wall, paneling, wallpaper, paint, wall and
floor tile and frooring, but not includ,ing the sub-flocring,
which make up Lhe finished surfaces of the perimeter anc interior
walls' ceilings anc floors within his unit, including both the
interior and exterior of Unit doors and wind,ows; provided, how_
everr that the decoration of the exterior of arl doors and
windows sha1l be subjec+- to the approvar of the Board of Managers.
The li.nes, pipes, wires, conduits or systems (which for brevitv
are herein and hereafter referred to as utilities) running through
his unit which serve one or more other units are common Elements.
such utilities sharl not be disturbed or rerocated by an orvner
RIGHTS l EASE}IENTS Ar.JD OBLIGATIOI{S
3.1- Owner's Rights in Conrnon Elements. Subject to the
of all owners expressed in an amended declaration duly recorded.
3.3 Ornrner's Maj-ntenance Responsibilj_trr for His Unit.
-8-
without Lhe v.'ritten consent"and approrral of the Board of
Ma:lagers' An orv'ner sharl, however. be responsible for the
maintenance, repair or reptacer.ent of any plurabing fixtures,
rvater heaters, hearing eguipment, righting fi.xt.ures, refrig-
erators, d,ishrvashers, disposals, rang:es ancl all other equipment.
that rnal'be in, or connected with his unlt. An or,vner shall, at
the orvne.r:rs o',.rn expense, keep Limited. connon El_ements which are
assigned to or part of his concorninium in a crean and. sanitary
conditrcn and sharr be responsibre for the maintenance thereof.
Al o'.v'ner's right to repair, alter and remodel the interior of
his un:-t shall be cou.oled r^rith the obligation to reprace any
finisir.ing or other materiars rernoved with sirnilar or other types
or kinds of materials of at least the sarne quality.
3.3.2 An Crrrner shall naintain and keep in repair the
interior of his orvn unit, inclucling the fixtiires thereof . Al1
fixtures and equipmeat instarled within the unit cornmenci.,rg at
a point where the utilities enter the unit sharr be maintained,
and kept in good repair and condition by the owner thereof. An
owner shali do no act nor any work that rvi.l} impai; the sr,-ru.:turar
sou'dness or integrity of the unit or the euilding in which it is
located or impair. any easement.
3.4 Board, of l,Ianagersr Rights. The Board of l,lanagers
shail have a non-exclusive r.ight, and, easement to make such use
of common Elements and units as may be necessary or appropriate
for the performance of the duties and. functions which it is obli-
gated or'permitted to perform under this Decrarat,ion.
Each owner shall have a non-exclusive easement for aceess between.
his Unit and public roads and streets, over halls, corrid,ors,
stairs, and sidervalks, if any, and exterior access and other
easements which are part, of the common ELements. Each owner
shall have.a non-exclusive easement in and over common Erements,
ircluding those that are ro'ithin the unit of another ormer, for
horizonEal and lateral support of the unit, which is part of his
Unit and for utilrty service to that Unit, including vrater,
3.5 Owner's Easement for Access, Support and Utilitj-es.
-9-
se"./er r gas r electricity, telepnohe
Easements in Units for
and television service.
Rep.air, Maj.ntenance anC
EmerEencies.
3.5.1 sone of the common Elernents may be r.cated within
a Unit or may be conveniently accessible only through a Unit.
The Board of l4anagers and each owner shall have an easement/
which rnay be exercised for any or,/ner by the Board. of llanagers as
his agent, for access through each unit and to all comrnon Ele-
ments frorn time to time duri.ng such reasonable hours as may be
necessary for the mainlenance, repair or replacement of any of
the comrnon Elements located therein or accessible therefrom; pro-
viced, holever, that, such easement and right of access shall be
inmediate for making emergency repairs therein necessary to pre-
vent damage to the Comrnon Elements or to another Unit.
3.6.2 Any danage tc the interior or dny part of a Unj.t
resu).ting fron the maintenance, repair, emergeney repair or
replacement of any of the cornmon Elements or as a resuit of
emergency repairs within another uni t shall be a conmon expense
of all- of the orrners; provided, however, that if such danagre is
caused by negligent or tortious act of an olner, members of his
family, his agent, employees, invitee, licensee or tenant, then
such owner shall be responsrble and liable for any of such damage.
Arr camaged improvements shall be restored substantially to the
same condition in rvhich they existed prior to the d,amage. All
naintenance, repairs and replacements of the conrnon Elements,
whelher rocated inside or outside of units, unless necessitated
by the negligence, misuse or tortious act of an Owner, members
of his family, his agent, employees, invitee, licensee or tenant,
in which case such expense shall be charged, to such owner, shal1
be the conmon expense of the Association.
3.7 Right to Colnbr.ne ltn!F.s. Subject to the approval of
the Board of Managers, an owner sha11 have the right to combine a
unit rvith one or more adjoining units. Declarant sharl have the
foregoing right vrithout, the necessity of approval by the Board of
Managers. A combinaticn of units shal1 become effective onlv
-10-
\vherl the owner or- the Units'vrhich are to be condrined executes
and records a rvritten stac.enenb, evidencing the co:r,Jrination and
setting forth the undivided interest in the comrnon Elements
ap*ourtenant to the combinecl Unit, which shall be the sum of
the undivided interests in the comnon Elenents appurtenant to
each of the Units so combined,, an4 records an amendmant to the--.---..----I4lg .gglgj_!1_c_onrbrna!j-a.a. Such amendm.ent to the Map shall
in all respect,s comply 'riith the standards set forth for the lulap
in A:tic1e 2 hereof and the form of written statement shall be
approved in writing by any mortgagees of the affect,gd Units.
rir the event of such cornbinatio.il , any part of bhe Building rvith-
in the new perimeter boundaries of the combined units shall cease
to be connon Erements if such part of the Building r,roul-d not
have constituted cornmoa Erements had the combined units been
originally d,esj-gnated on the Map as a single-- Unit.
3.8 Subdivision of a Condoniniunr Unit Allowed. Subject
to the approval of the Board of lvlanagers, an owner shall be abre
to sub<livi'Je any condomi.nitrm so as to convey to a prospective
Owner an interest in less than an entire Condominiun Unit. De-.
clarant sharl have the foregoing right without ttre necessity of
approval by the Board of Managers, such subdivision shall become
effective only when the owner executes and records in the county
records a written statement erridencing the subdirrision and
setting forth the percentage undivid,ed, interest appurtenant
to each of the subdivided Units the sum of which shaLl egual-
the percentage undivided interest of the subdivided Unlt and
record,s an amend.ment to the llap showing the subdivision. Such
amendment to the l4ap shall in all respects comply wiLh the
standards set forth for the Map in Article 2 hereof and, the form
of the written statement shall be approved i.n. writing by any
mortgagee of the affected Unit,
3.9. Easements,Deemed. Appurtenant. The easements and
rights herein created for an Owner shall be appurtenant to the
Condomi.nium of that Owner anC any lease, assignment of lease,
subJ.ease, deed of trust, nortgage, contract, deed or otlrer instru-
ments affect-i-ng the tiile to a condominirrm shalr be deened to
-11-
o
grc-rllt ana reserve th
he::ein, even though
a.opears in any such
e easements
no specific
instrument.
'- *J -i -:^!^'(:Il\r !-!YarL;1
reference
as are provided for
to such easements
ARTICLE 4
THE ASSOCIATIO}I
4.1 General purposes and poivers. The Bridge Street
condominium Association wir] be formed as a colorado non-profit
ccrporation to manage the ccrnnon Elements as provided in this
Declaration and to further the interests of orrners of cond,o-
miniums in the Building. rt sharr have arr po!.rers *ecessary or
desirable to effectuate such purposes. The Association shall be
managed by a Board of }lanagers as hereinafter prorrided for.
4-Z Regular Membership. There shall be one member on
the Boarci of Managers for.each concominium, which membership
shall be appurtenant to each condoninium. Tlre owner of a condo-
minium shall automatically be the owner of the menbership appurte-
nant to that cond.ominium, and. title to and. ownership of the
nembe::ship for that condominium shalt automatically pass with each
transfer of a cond.ominium. Each owner of a. cond,orninium sharl
aulomatically be entitled to the benefi.ts and subject to the
burdens relating to the membership for his cond,ominium. rf the
interest- in a Condominium is held b7 mo:e than one. person or
entity, the owners of said condominium shall desi.gnai,e one owner
to be a mernber of the Board of Managers and to reFresent arl such
Owners.
Notwithstand.ing anything to the contrary providec herein,
unti] a majority in nurnber of cond,ominiums in this Build,ing have
been sold by the Declarant or untj.l January r, rgTgt whichever
first occurs, the rnembers of the Board of llanagers shaLl be
appointed by Declarant and. need, not be owners of condorniniums;
provided, horvever, that the Declarant shall have the option at
any time'td turn over control 0f the Board of Managers to the
Owners.
-12-
4"3 Voiibg of Oir:1ers., Each Orvner shall be enti.led to
cast a voce in loard of l,lanagersrrreebings based, on the appurte-
nant perr:enlage undivic,ed rl.nterest in the common Erements 655igned
to his unit in Exhibit A attached hereto. votinq by proxy shall
be .oerm:.t!ed. Excep! as other-rrise specif icarly provid,ed in this
De'trlaration, a]l votes wirl ;equire a majority of the total per-
cetirage interest specifiecl in Exhibit A.
4.4 l{eebrggl. r\.leetings of the Board. of iyanagers may be
called at any ti-rne for the purpose of consicering mat,ters rvhich,
by the terms of this Decraration require the approval of arl or
sone 'f the ovrners, or for any other reasonable purpose. Meet-
ings shali be herd at reast, quarterly on the second. Thursday in
'January' April, July and octeber aL. 9:30 a.m. on the Building
premises' or on a more fr:equent basis or at such other prace agreed,
upon bir the Board of I''Ianagers. A special meeting may be carled,
by any one member of the Board, of Managers upon seven (7,t days rvrit_
ten notice to the o'.her owners. such notice shall specify the d,ate,
tirne and plaee .f the meeting and the matters to be considered,
thereat.
meeting held on the second ?hurs-
day of January each year, one member of the Board of Managers
sharl be elected chairman of the Board of Managers and, as chair-
inan shall be responsibre to carry oue the d,uties set forth for
the Chairman in the Bylaws of The Bridge Street Condominium
Association_
4.6 Notices. Any notice shall be deemed given and any
informatiolr or material shalr be deemed. furnished, or derivered
to a party at the time a copy thereof is deposited in the mail,
Pcstage prepaid, addressed, to an owner at the owner,s guilding
address unLess an o'arnei: notifies the Board, of lranagers in
writing of another address to rvhich alr notices should be
sent, in which case alr notices sharr. be sent to that add,ress,
ARTICT.E 5
RIGI{IS 3SID OTI,IGATTONS OF TI{E BOARD OF' IIANAGERS
5.1 Authority of the Board. of Man-age::. The Board of
4.5 Chairman. At the
-13-
11tr:llgers io: t.lre be;-rcfit of .the Condcr.iniuns ancl the Owi)ers,
sharl enforce the prcvisions hereof and shalr acquire anc shall
oay for out of the corur,on expense fund hereinafter provided for,
t;:.e follcrring:
5.1.1 l^7ater, sewer, garbage collection, snovr removal,
eJ-ectrical, telephone a.nc gas and other necessary utitity ser,;ice
for the Comrilon Elements (and to the exient not separaiellz netered
or charged, for the Units) t
5.L.2 A policy or poJ-icies of fire insurance, with ex-
tended. coverage encorsenent, for the ful1 insurabl-e. replacer,r.r:1.
vaiue of the units, common Erements and Limited, common Erernents.
No o',rner sha1l purchase fire or casualty insurance on his :ndi-
vidual ur.it which wirl result in a reduction in the proceeds
reco'rerabl'e by the Association from the policy or policies pro-
vicied for herei-n;
5.1.3 A policy or oolicies insuring the Board of l,Ianegers,
the owner,s and the l4anager against any liability to the public
o:: to the Orvners, members of their farnilies, agents, employees,
iuvitees, licensees and tenants, incident to the orrnership andz,or
use oi the Building, and, including the personar liability exposure
of the owners. Limits of liability under such insurance shall not
be less than Three Hundred Thousand. Dollars ($300r000.00) for any
one person injured., for any one accident, and shall not be less
than One Hundred. Thousand, Dollars ($fOOr000.O0) ior pro5rerty
damage each occurrence (such li;nits and coverage to be reviewed,
at least annually by the Board of Managers and increased in its
discretion). Said polrcy or policies shall be issued on a com-
prehensive liability basis and. shaLl provide cross liabil-ity
endorsement rvherein the rights of named insured under the poricy
or policies shail not be prejudiced as respects his, her or
their action against another named insured-
5.1.4 Workmenrs compensation insurance to tha extent
necessary to comply with any applicable laws;
5.L.5 The services of a person or firm to manage its
-14 -
i.\!-={. L \,rr.j kjr.rte(-l' .aovJ.:jaore l}y Ene iJoa!:(I of tlanagers ,
'as welr as such o]r .oersonner as the eoardG lranagers shalr
deternine sha1l be necessary or proper fo: the operation of the
corn:non E.lenents, rvhether such personnel are enproyecl directly
by Lne Board of Managers ox are furnished by the llanager;
5.1.6 Legal and, accounting services necessary or proper
in the operation of the connon Elements or the enforcement of
this Declaration,-
5.1.7 If deemed, necessary or proper, ficlelity bond nan:_ng
the llanager, and suc}t other persons as may. be d,esignated by the
Board of l4anagers as principals and the owners as obrigees, for
the first year in an amount at least equal to fifty percent, (50a)
of the estimated cash requirement for that year as d.etermined. under
Article 6.1 hereof, and for each year thereafter in an amounl at
leasL equal to fifty percent (50s) of the total sum collected.
ihrough the cornn.on expense fund d,uring the preced.ing yea4
5.1-B painting, naintenance, repair gnd all landscaping
of ttre conmon Elements, and such furnishings and equipment for
t'he comnon Element.s as the Board of Managers shall determine are
necessary and proper, and the Board. of Managers shall have the
exclusive right and, duty to acquire the same for the common Ere-
nent,s,' provided,, however, that any Lirnited coramon Element assigned.
to a unit and the interior surfaces of each unit sharr be painted,,
:naintained' and repaired. by. the owners thereof, all such mainte-
nance to be at the sole cost and expense of the particular otcner;
5"f.9 Any other materiaLs, supplies, labor, sar\rices,
nraintenance, repairs, structuraL arterations, insurance, taxes
or assessments vrhich the Board of Managers is required, to secure
or to pay for pursuanL to the terms of this Declaration or by
larv or which in its opinion sharr be necessary or proper for the
operation of the common Erements or for the enforcemsnt of this
Declaration, provided that if any such materials, supplies, 1abor,
services, maintenancer repairs, structural atterations, insur-
ance, taxes or assessments are provided for particular units,
the cost thereof sharr be specially assessed to the owners of
such Units.
5.1.10 Maintenance and repair of any Unit,, if such main_
tenance or repai.r is reasonably necessary in the discretion of
the Board of llanagers to protect the common Elements or preseltre
-15-
t.he apcearance and value of the Builcing, and the orrner or orrners
cf sai-d unit have fail-ed or refused to perforr,r saicl maintenance
or repair rvithin a reasonabLe time after rvritten notice of the
.necessi-iy of said inaii:tenance or repair deliverecl by the Boari
of Managers to said orvner or or"/ners, providecl that the Board.
of l4anagers shalr levy a special assessrflent against the condo-
minium of such olvner or orvners for the cost of said, rnaintenance
or repair
5.2 Board of Managersr powers, Exclusive. The Board of
Ilanagers shall have the exclusive right to contracb for al-l goods,
services and insurance, payment for which is to be made from Ehe
coflur,on expense fund,.
Elenents- ?here shalr be no structural arterations, cap-ital ad,ci-
tions to, or capital irnprovements of the Comnon Elenrents reqrriring
an expenditure ia excess of Three Thousand, Dollars (93,00C-00)
withcui the prior approval of or,.rners, holding a three-fourths (3/4)
majority of the totaL votes, as provided in paragraph 4,3 hereof,
5.4 Delegation to l4anager, The Board of r{airagers may
delegate any of its duties, powers cr functions to any person or
f ;* .t- ^ -^r- ^-lrrtit, Eo acE as lulanager of the Building, provided that any such
delegation shall be revocable upon notice by the Board of.yanagers.
The merabers of the Board of Managers shall not be liable for any
omission o-r improper exercise by the Irlanager of any such d.uty,
polrer or function so deregated by written instrument executed
by a majority of the Board of l4anagers. rn the absence of any
appointment, the chairman of the Board of Managers shalr act as
Manager.
ARTICLE 6
ASSESSI{EITTS
6. ].
6.1.r
each calendar
charges to be
Conrnon Expense Fund: Assessments.
within thirty (30) days after the
year the Boar,i of l4anagers sha}l
paid during such year (including
beginning of
estimate the net
a reasonable
Alterations, Additions and roveinents of Cormmon
-rb-
. .. .pror.risioir for con$gancies anC replacenenEsJd, less any
a,.?\,i Far' i:::-:".T::_':-:_::: ":::'-:
":::Jo'=:" :"o.. s..\iJr.'r.-s.-r rrlcone and any surplus frcm the prior yearrs fund).
Said 'restirnatecl cash reguirJmentl' shal-l- be assessecl to the
or'rners pursu.ant to the percentages set forth in the sched,ule
in E:ihi-bii A attached hereto except as any such percentage is
.rrn,:n.:lar'i h.' combination or subdivisioa pursuant to Sections 7!j vvrc!J_rr,cl r_.lvJ,.t vJ- p Lll....\.1f V J_>J_\Jrr iJ|J! >i.r
and 8 of Artrcle 3 hereof. Declarant rvill be liable for the
amcunt of any assessment againsi units owned by Dec].arant. rf
said sum estinated. proves inadeguate for any reason, incrudingl
nonpairment of any ol,rnerts assessnent, the Board of }tanagers may
at any tine levy a further assessment, which shall be assessed,
to the orv-ners in like proportions, unless otherwise proviced.
herein. Each owner shall be obrigated to pay assessments made
pursuant to this paragraph to the Board. of Managers in equal
rnonthry installnents on or before the first day of each month
during such year, or in such other reasonable manner as the
Board, of Managers shall d.esignate
6.7.2 The rights, Cuties and, f::nctions of the Board of
Vraild,g€rs set forth in this paragraph shall be exercised by
Declarant until a majority in number of the units are sold, or
ttniil January l, L979, whichever first occurs; provid,ed,, however,
that the Decl"arant shall have the option at anyt-i&e to turn over the
exercise of said ri-ghts, duties and functions to the ovrners-
6"1-3 A11 funds correciecl hereunder sharr be expended.
for the purposes desj.gnated herein.
. 6.L.4 The on.l-ssion by the Board, of Managers, before the
expiration of any year, to fix the assessments hereunder for that
or the next year' shalL not be deemed a waiver or moclification
in any xespect of the provisions of this Declaration, or a release
of any owner from the obligation to pay the assessments, or any
installment thereof for that or any subsequent year, but the
assessment fixed for the preceding year sharr continue until a
nevr assessment is fixed. No owner may exempt himself from
Hability ior his contribution towards the conmon expenses by
waiver of the use or enjoyrnent of any of the common Elements or
by abandonment of his Unit.
1-t-r /-
6-L.5 The Board of l4anajers.shall keep detaj-red, accurate
records in chronolog;s31 orcler, cf the receipts and, erpend.itures
affecting the Comnon Elernents, specifying anrl itemizing the
maintenance and repair expenses of the cornmon Elenents and any
other expenses incurred. Records and voucl:ers authorizing the
payments invorved sharl be avairable fcr exanination by the
Owners at convenient hours on weakdays.
6-2 speciar Assessrnents. subject to the provisions of
Article 5.3 hereof, the Board, of Managers may levy special
asssssrnents, payable over such period, as the Board of l,ranagers
may deternine, for the purpose of defrayi.ng, in whole or in part,
the cost of any construction or rsconstruction, repair or replace-
men't of the Building or any part thereof .
o.J
in:tial purchase and sale of each unit by Deirarant, ttre o.rner
sha1l make a cash contribution to the Association in an amoune
equar to the ownerrs percentage interest in the common Elements
nultiplied by $e,000.00.
6.4 . Each rnonthly
assessnent and each speciar assessment, sharl be a separate, dis-
tinct and persona-r debt and obligation of the owner against whonr
the sarne are assessed at the time the assessment is made anc
shall be collectibre as such. suit to recover a mone!' juclgnnent
for unpaid, ccmmon expenses shalt be maintainable without fore-
closing or waiving the lien securing the seune. ?he amount of
any assessnent, whether regular or special , assessed to the owner
of any Condorninium plus interest at twelve per cent (12t) per
annum, and costs, including reasonable attorneysr fees, sharL
become a lien upon such Condominiiun upon the recording of a
notice of assessment. The said lien for nonpayment of common
expenses shall have priority over all 0ther liens and encum-
brances, recorded or unrecorded,, except only tax and special
assessment liens on the Condominium in favor of any proper
taxing authority or speciar district, and encumbrances on the
ownerrs condominiurn recorcled prior to the date such notice is
recorded.
-18-
A certif-i-.l ,roo the Boarcl of t{anagG sLating the
amouilt o! any assessments, gharges, fines or penalties, if any,
due an<1 unpaid whether secured by tlre lien upon any cond,ominiun
created hereunder or not, shall be conclusive upon the Board. of
]lanagers and the owners as to the amount of such indebteclness on
the dale of the cer-.-j-fir:rte, in favor of all persons who rely
thereon in good faith, and such cert:-ficate shal_l be furnished
to any owner or any encurnbrancer or prospective encumbrancer of
a conilonniniriin upon request at a reasonable fee, not to exceed
fj.fty Dollars ($50.00). Unless the reguest for a certificate
of indebtedness shall be compliec riith within fifteen (15) days,
alr ur:paicl conunon expenses which becone due prior to the datd
of the making of such reguest sha1l be subord,inate to the incerest
cf the person making lhe request. Any encumbrancer holding a
lien on a conconinium may pay any urpaid assessment payable rvith
respect to such concl,oninium and upon such payment such encran-
brancer shali have a Lien on such con-doniniunr for the amounts
paid of the sane rank as the lien of his encumbrance.
Such lie;r for nonpa:'nent of assessment may be enforced.
by forecrcsure and sale by the Ecard of Managers, sush sate .Lo
be conciucted. in accordance vrith the provisions of law applicabre
to the exercise of powers of sare or foreclo=ur*'in deeds of
trust or nortgr:ges or in any manner permitted by raw, rn any
foreclosure or sare, the owner shall be required to pay the
costs arn,l *rpenses of such proceedings including reasonabre
at:orneys' fees.
The Board, of Managers shall have the
Condoroini.un at foreclosure or other sale ancl
mortgage anC convey the Condominiurn.
power to biC in the
to hoLd,, 1ease,
By agreenent executed by a majority of the Board of
l'ianagers, ary lien for nonpayment of an assessment nay be sub-
ordinatec to l4ortgages not otherwise entitled thereto; proviced.,
however, that aft,er the foreclosr:re of any such mortgage there
rnay be a lien created pursuant to paragraph 6.4 hereof on the
interest of the purchaser at such forecrosure sale to secure
all unpaid assessments on the Condominium.
-r9-
. ARTICIE 7.....-.-:-_
USE A}ID OTHER RESTRICTiOI]S
7.I Limitation on Use of Units anC Common Elements. fhe
units and common Erements shall be occupied and used as follovrsl
7.1.1 No Owner shaL] occupy or use his Unit, or pernit
the same or any part thereof to be occupied, or used except for
conmercial purpcses and such other purposes as are authorizerl
blz J-aw-
e-_--
aJll(lL .L
7.L.2 There shalL be no obstruction of the Coinrnon Ele-
Except in the case oi designated storage areas, nothinl
be stored, in any part of the Common Elements without the
written consent of the Boarcl of Manaqers.
7.1.3 Dlothing shall be done or kept in any Unit or in
the cornmon Elements lrhich will inqrease the rat-e of insurance
on the comrnon Elements, without the prior rvritten consent of the
Board of l'lanagers. No owner shalr permit anything to be d.one or
kept in his unit or in the cornmon Element,s which rvirl result in
the cancell-ation of iirsurance on any unit or any Fart of the
corirnon Elements, or which would be in violation of any lar.r, I,ia
rvaste sha1l be committed in the Cornmon Elements.
7.L.4 No sign of any kind shall be displayed to t"he
public vierv on or from any lJnit or frorn the conrnon Elements,
vrithcr:t, the prior written approval of the Board, of l,Ianagers as
to the size, design, and construction of said. sign, which ap?ro-
val shall not be unreasonably withhelc. Approval of a sign by
the Town of vair shall be deemed to be approval by the Board. of
llanagers. signs in exisLence on the d.ate of conveyance of a
u:lit to an or,rner by Declarant are exempt from this reguirement.
7.1.5 No noxious or offensive activity shall be carried,
on in any Uni-+- or in the Ccmnon Elements, nor shall anything be
dcne therein which may be or become an annoyance or nuisance to
the other owners; provided, however, that it is ex5lress-ly acl-,-
nowledged by Ireclarant and all owners that one or more of the
units may be used for the operation of a nightclub, restaurant
-20-
or
t_.1
qi rni l:rr :rFl-irri +,, ^-,r !r-^r rr .rr*,r.Lcrr- cruL-rvrLy and that this Article 7.1.5 shaLl be applied
such u'it or units in a manner consi.st,ent. r,rith those uses.
7 -!.6 }lothing sha1l be altered or constructed in or
removed from the con,non Elernents, except upon the vrritten con-
sent of the Board of Manaqers.
7.I.7 There shall_ be no violation of rules for the use
of the Coin:r:on Elements adoptee-Eyr-the Board of ltanagers anC frrr_
nished in writing to the Orv-ners,and the Board of lrlanagers is
authcr.rzed to adopt such rufEs,
ARTICI-E B
DAI,IAGEr DESTRUC?IO}I AND P€STORAITON
o.I fn case of fire, casualty
oi: any other disaster, the insurance proceed,s, if sufficient to
reconstruct Lhe Buitding, shall be applied to such reconstruction.
Reconstruction of the Building, as used, in this paragraph, me.-ns
restoring the Buircling to substantiarry the same condition in
r'rhich it existed pric.to the fire, casuarty or other disaster,
with each unit and the common Elements having the same verticar
ancl horizontal boundarles as before. such reconstruction shal_l
be accornolished by the Board of l,ianagers.
S.2 . If the insurance
proceeds are insufficient to reconstruct the BuildinE, the
damage to or destruction of the Buildlng shal1 be promptJ-y
repairecl and restorad by the Board of Managers, using the in-
surance proceeds, if any, on the Building for that purpose, and,
the unit owners shalr be riable for assessment for any d,eficiency.
However, if Lhree-fourths or more of the Buirding is d.estroyed or
substantially danaged and if the owners, by a vote of at reast
seventy-five percent (25?) of the votingl poi{er, do not volun-
tariLy, within one hundred, d.ays after such destruction or danage,
make provision for reconstruct,ion, the goard of lvtanagers shall
record, with the county recorder, a notice settinq forth such
facts, and upon the record.ing of such notice:
-21-
(1) the Bui.r-d.ing shall be deemed to be orvned in common
by the Owners,.
(2) the undivideC interest in the Building orvned. in
co!runon which sharl apgertain to each owner shalr be the percen-
tage of undivicied interest previously oruned by such owner in the
Comnon Elements;
(3) any liens affecting any of the condominiuras shar.l
be deened to be transferred in accordance with the existing
priorities to the und.ivid.ed interest, of the owner in the Builcing;
and,
(4) the Building shal1 be subject to an action for
trrartiti-on at the suit of any owner, in rvhich event the net
proceeds of sale, together with the net proceeds of the insur-
ance on the Building, if any, shalr be consid,ered as one fund
and shall be divided among all the o'rners in -a percentsage equal
to the percentage of undivided interest owned by each owr.rer in
the common Elements, after first paying out of the respective
sh'res of the owners, to Lhe extent sufficient for that purpose,
aL1 liens cn each owner's und,ivided interest in the Build.inE.
8.3 Obsclescence. At any time after tlrenty (20) vears
from the date of this Declarat,ion, the Olrmers by a seveniy_five
percent (75t) vote may decrare the Buirding obsorete and, pur-
suant to tire provisions of Artisre 8.2 above" d.eem trre suilding
to be ovrned in common. Thereupon the Buirding shalr be subject
to an action for partition at the suit of eny Or.rner.
8.4 Eminent Domain proceedinqs. I!rtr.r.rre rr L LrLrr.krI.fl l,rocegof-ngs n the event any part
or alr of the co'nmon Erements are the subject of an eminent comain
proceeding or the threat thereof, the Board, of Managers shall
have the authority to prosecute or to compromise the p.roceed,ing.
The Board of Managers sharl ar-so determine whetrrer or not, to
apply any sums payable with respect to the taking injury or
destruction of the comrnon Elements to the repai; or repracement
thereof. Any suns not so applied shall be distributed to the
o'ners according to their perceatage int,erest in the common Er.e-
ments set forth in Exhibit A attached heretc.
-zz-
o
.. r\KIILLt: y
GENERAL PROVTSTONS
9.1 Enforcement. The Decrarant and every orvner by the
acceptance of a deed to a concominium, and their heirs, succes-
sors and assigns, sovenant that they wilr faithfurly observe and
comply rvith all of the eerns, covenants anql condit,ions wherever
inrposed irr the cond.ominium d,ocuments incruding this Declaration
anc the Articles of rncorporation, Byraws ancr rur"es of the Asso-
ciation, as the same ma]' be 1awful1y amended from time to t,ime
and with cecisions ado.oted pursuant to said Decr-aration and
rures and regulations. Failure to cor.ply shall be ground,s for
arr t.-+i^r +^qrr cr\' Lr\J.r LU recover sums due for camages or injunctive rerief
or both, maintainable by the Board. of Managers on beharf of the
Orvners or by an aggrieved owner
9.2 Audit. Any Owner may at any time at his own expense
cause an audit or inspection to be made of the books an,ii recorrls
of the Board of Managers. The Board of Managers, may out of the
common exilense fund, pay for an audi-t of arl books and records
pertaininE to the project annually or at such other interv-ar as
the Board of l4anagers deems advisabLe and furnish copies thereof
to the Olners.
9.3 rnterpretati.on- The pro,risions 0f this Declarat,ion
shall be Liberarry construed, to effectuaEe its Furpose of creat,-
ing a uniforrn plan for the d.evelopment and operation of a condomin-
ium project. Fairure to enforce any provision hereof sharr. not
constitute a waiver of the right to enforce said provision or
any other provision hereof.
9.4 Amendment. ExcepE as
provisions of this Declaration mav
in writing signed and acknowled,ged
seventy-five percent (75*) of the
first mortgagees, which amendment
recorded.
othewise provid.ed, herein, the
be amended. by an instrument
by record O\./ners holding
total vote he.reunder and all
shal1 be effective when
-23-
;.
9 ' 5 severabiriui- ,The provisions hereof shalr be d.qemed
independent and severabre, and the invalidity or partiat invarid.-
ity or unenforceability of any one provision or portion hereof
sharl not affect the vatidity or enforceabirity of any other
provrsion hereof.
9. 6 Ef fectirre Date. This Declaration shall take effect
upon recording.
rN wrrNEss WHEREOF, the undersigned, has executed this
instrunent this _re- day of -SaffZ^ld>< , L97Z
CASINo PARrNeRs, LTs.,a CoLorado limited partnershl,p
By: Casino Associates, a Coloradogeneral partnership, itsGeneral partner
STATE Og' COLORADO
couN?y ot Dln,,ttu i ""'
lhe foregoing instrument was acknowledged, befora me this
-?!-day or .9, - , , Ls/llby Ranard E. r4acdonatd,,
General Partner of Casino Associates, a Colorado
ship, as the General partner of Casino partners,
liurited partnership.
My conunission expi "u=, fui"ad*iat 6, nr'y'
WiL-ress rny hand and of f icial seal .
general pa:tner-
Ltd., a Colorado
-24-
.. I.
EXHTBIT A
UNIT
DESICNAfION
PERCEN"AGE
TNTEREST IN
COIIIUON ELEI4ENTS
24\ 6?
zL / bi lo
/.t43/
o-5
,5. 5
100. 0
'. I
BYIAWS
OF
THE BRIDGE STREHT CONDOI{INIUM ASSOCIATION
A l)rl.lT'T F T
OBJECT
I. Purpose. The purpose for which this non-profit
Association is formed is t.o set fort,h the procedures for governing
The Bridge street condominiurn which has been submitted to the
provisions of the colorado condominium ownership Act by the re-
cording of a Declaralion and l,lap bearing the name associated
with this Association.
2. Owneqship. All present cr future owners, tenants, their
licensees, customers, business invitees, servants, agents, employees,
or any other person or persons who nright use in any manner or be
upon the prenises of The Bricge street condominium are subject
to these Bylaws and the rules and regulations promulgated pursuant
hereto. The mere acguisition cr rentar of any of the condominiums or
the mere act of occupancy of any of said Condominiums will signify
that these Bylaws are accepted, rati.fied and wiLl be complied vrith.
3. Definitions. The following terms when used in these
Bylaws shall have the sane meanings ascribed to them in Article
r of The Bridge street condorninium Declaration: "Declarant,,,
"Declaration" r "Building", "lyap" r ttUnit', r "Common Elementstt,
"Condominium", t'Owner", t'Board of Managers", r,Manager',, ',Mortglage',,
"Mortgagee", "Record", "condominiurn Act", "county", and ttAsgcciation".
ARTICLE II \
MEMBERSHIP
1. Membership. Except as is otherarise provided in these
Bylaws, ownershi-p of a condominium is required in order to guarify
for nembership in this Association. Any person on becoming an
owner of a Condominiurn shaLl automatically become a menrber of this
Association and be subject to these Bylaws. such membership sha11
terminate without any formal Association action whenever such
person ceases to own a condominium, but such terminatron shall
not relieve or release any such former owner from any liability
or obligation incurred under or in any way connected with this
Assocj-ation during the period of ownership and membership in the
Association, or impair any rights or remedies which the owners
have, either through the Board of Managers of the Association or
directly' against such former owner and member arising out of or
in any way connected with ownership and membership and the covenants
and obligations j_ncident thereto.
ARTICLE III
ADMINISTRATION
the Condominiums shall constitute the Association. The Association
shaLl administer The Bridge street condominiurn Building exclu-
sively through a Board of Managers (sometimes referred to herein
as the "Board") consisting of one owner representing each of the
Unlts in the Building.
2. Meetinqs. Meetings of the Board of Managers may
be cal]ed at any time for the purpose of considering matters
which' by the terms of this Declaration require the approval of
all or some of the owners, or for any other reasonabl"e purpose.
Meetings shall be held at least quarterly on the second Thursday
in January, April, July and October at 9:30 A.M. on the Casino
Building premises, or on a more frequent basis as agreed upon by
the Board of Managers. A special meeting may be called by any
one member of the Board of Managers upon seven (7) days written
notice to the olher ovrners. such notice shatl specify the date,
time and prace of the meeting and the matters to be considered
thereat.
-2-
o
3. Notice. Any notice shall be deemed given and any
information or material shall be deemed furnished or delivered,
to a party at the time a copy thereof is deposited in the mail,
postage prepaid, addressed to an Owner at the Owner's Bridge
St.reet address or at an Ownerts address which has been regis-
tered pursuant to Article VfI, paragraph 2, hereof.
4. Waiver of Nolice and Consent to Actlon. Any Owner
rnay waive, in writing, any notice required to be given by 1aw
or under these Byl-aws, whether before or after the time stated
therein. Nothing in these Bylaws shall be construed so as to
prevent any action reguired to be taken at a meeting of the
Board of Managers to be taken without a meeting if a consent in
writing, setting forth the action so taken, shal1 be signed by
alL the Owners.
5. Vqting. Except as otherwise provided in the Declaration,
each owner as a member of the Board of Managers shal1 be entitred
to cast a vote based upon the appurtenant percentage undivided
interest in the conunon Elements assigned to his unit in Exhibit A
to the Declaration. If the interest in a Condorniniurn is held by
more than one person or entity, the Owners of said Condominiunr
sha1l designate in writing one Owner to represent and vote for
the Condominium. An Owner or Owners may vote either in person
or by written proxy executed by the Owner or Owners. Such proxy
shal1 be effective and remain in force until it terminates by its
own terrns, is rerroked in writing or terminates by 1aw.
6. Parliamentary Rules. Roberts Rules of order (ratest
edition) shatl govern the conduct of proceedings of the Board of
Managers, unless said rures are suspended by vote of the Board,.
7- Powers and Duties. The Board, sharl have the poqrers
and duties necessary for the administration of the affairs of
the Assoiiation and for the operation and maintenanqe of ?he
-3-
Bridge street condominium. such powers and duties of the Board
shall incLude, but shatr not be limited to, the following, all of
which shall be d.one for and in behalf of the owners of t.he con-
dominiums.
(a) To administer and enforce the covenants, conditions,
restrictions, easements, uses, lirnitations, obligations and al.l
other provisions set forth in the Declaration submitting the pro-
perty to the provisions of the colorado condominium ownership
Act and the Bylaws of the Association.
(b) To establish, make and enforce compliance with such
rules and regulations as may be necessary for the operation,
use and occupancy of arl- of the condominiums with the right to
amend. same from time to time. A copy of such rules and regulations
sharl be delivered or mailed to each owner upon the adoption
thereof.
(c) To incur such costs and expenses as may be necessary
to keep in good order, condition and repair arr of the comrnon
elements and all items of cornmon personal property.
(d) To insure and keep insured all of the insurable
common element,s and condorniniums in an amount equal to the re-
placement value. To insure and keep insured ar1 cf the corunon
fixtures, common equipment and common personal property for the
benefit of the owners. Further, to obtain and main,tain insurance
as provided in the Declaration.
(e) To prepare a budget for The Bridge street condominium
at least annually, in order to determine the amount of the common
assessments payable by the owners to meet the connon expenses of
the Building, and allocate and assess such common charges among
the unit owners as provided in Articl-e G.r of the Declaration,
and b1' vote of the Board to ad,just, decrease or increase the amount
of monthly assessments, and remit or return any excess of assess-
ments over expenses, working capital , sinking funds, ::eserve for
deferred maintenance and for repracement to the owners at, the end
of each operating year. To levy and collect special assessments
-4-
whenever in Lhe opinion of the Board it is nesessary to do so
in order to meet increased operating or maintenance expenses
or costs, or additional capital expenses, or because of
emergencies.
(f) To collect delinquent assessment,s by suit or other-
wise and to enjoin or seek damages from an owner as is provided
in the Declaration and these Bylaws. To enforce a late charge
of not more than $10.00 per month and to collect interest at
the rate of twerve percent (12t) per annum in connection with
assessments remaining unpaid more than twenty (20) days from
due date for payment thereof, together with a1J- expenses, incrud-
ing attorneyst fees. incurred.
(S) To protect and defend in the name of the Association
any part or all of The aridge Street Condominium fron loss and
darnage by suit or otherwise.
(h) To borrow funds in order to pay for any expenditure
or outlay reguired pursuant to the authority granted by the
provisions of the recorded Declaration and these Bylaws, and
to execute all such instruments evidencing suclr indebtedness as
the Board may deen necessary and give security therefor. Such
indebtedness sharr be the several obligation of atl of the owners
in the same proportion as provided in Article d.l of the Decrara-
tion. The person who shall be authorized. to execute promissory
notes and securing instruments shall be the chairman of the
Board of Managers or any other Owner so authorized by resolution
of the Board.
(i) To enter into contracts Lo carrv out their duties
and powers.
(j) To establish a bank account or accounts for Lhe
conmon treasury and for a1l separate funds which are required
or may be deemed advisable.
(k) To make repairs, ad.ditions, alterations and improve-
ments to the Common Elements consistent with the best interests
of the Owners.
-5-
(r) To keep and maintain furt and accurate books and.
records showing all of the receipts, expenses or disbursemenrs
and to permit examination thereof at any reasonable time by each
of the Owners.
(m) To prepare and deliver annuarly to each owner a con-
soridated statement showing receipts, expenses or disbursements
since the last such statement.
(n) To meet at, Ieast quarterly and, if a Manager is
employed, an employee of the t"Ianager sha1l be in attendance,
upon invitation of the Board.
(o) rn generar, to carry on the adninistration of this
Association and to do all of those things necessary and reasonable
in order to carry out the governing and the operation of The
Bridge Street Condominium.
(p) To manage the use of all open spaces, comnon Elements
and other property in common use.
(g) To employ for the Association a Manager to exercise
those duties and powers granted to it by the Board, but not
Lhose powers which the Board, by law, may not delegate.
8. No Waiver of Rights. The omission or failure of the
Board or any owner to enforce the covenants, conditions, restri.c-
tions, easement,s, uses, limitations, obligations or other pro-
visions of the Declaration, the Bylaws, or the rules and
regulations adopted pursuant thereto. shall not constitute or
be deemed a waiver, modification or release thereof, and the
Board or"the Manager shall have the right to enforce the same
thereafter.
ARTICLE IV
OF'FICERS
1. Designation. The officers of the Association shalr
be the Chairman of the Board of Managers, a Secretary and a
-6-
Treasurer. Each officer shall be chosen from
Board of Manacrers.
2. Election of Officers. The officers
shall be elected annually by the Board at the
January of each year and shall hold office at
the Board.
the members of the
of the Association
meet,ing held in
the pleasure of
3. Removal of Officers. Upon an affirmative vote of a
majority of the total percentage interest, any officer may be
removed, either with or without cause, and his successor electeC
at any regular meeting of the Board, or any special meeting of
the Board called for such purpose.
4. Chairman. The Chairman shall be the chief executive
officer of ihe Association. I{e shall preside at all meetings
of the Associati.on and of the Board. He shail have all of the
general powers and duties which are usualty vested in the
offi.ce of a chief executive of an association, including, but not
limited to, the power to appoint committees from amcng the
Owners from time to time as he may in his discretion decide is
appropriate to assist in the conduct of tl:e affairs of the
Association.
5. Secretary. The Secretary shall keep all the minutes
of the meeting of the Boardi he shall have charge of such books
and. papers as the Board may direct; and he shall, in general ,
perform aLl the duties incident to the office of Secretary.
The Secretary shalI compile and keep up to date at
the principal office of the Board a complete list of Owners and
their registered addresses as shown on the records of the
Association. Such list shall also show opposite each Owner's
name the number or other appropriat.e designation of Lhe Unit
by such Owner, the undivided. interest in the Common Elements.
Such lj-st. .shall be open to inspection by Owners and other persons
lawfully entitled to inspect the same at reasonable times during
regular business hours. In addition, a list of aII Mortgagees
-7-
of units shall be maintained. The records referred. to in this
subsection may be maintained. by the Manager.
6. Treasurer. The Treasurer sha11 have the responsibility
for Association funds and shal1 be responsible for keeping full
and accurate accounts of alr receipts and disbursements in books
belonging to the Association; provided, however, that the day to
day responsibilities for booking and, collecting and di.sbursing
funds may be delegated to a paid employee of the Board or to a
Manager. The Treasurer's responsibility shall be to review
the accounts not less often than suarter-annuallv.
ARTICLE V
INDEMNIFICATION OF OFFICERS
AI{D MEIVIBERS OT THE BoARD
1. Indemnification. The Association sha1l indemnify every
member of the Board, their respective successors, personal
representatives and heirs, against all 1oss, costs and
expenses, including atLorneysr fees, reasonabry incurred by him
in connection with any action, suit or proceeciing to which he
may be made a party by reason of his being or having been a
member of the Board or officer. except as to matters as to r,'hich
he shall be finally adjudged in such action, suit or proceed.ing
to be liable for gross negrigence or willful misconduct. rn the
event of a settlement, indennification shal1 be provided only
in connection with such matters covered by the settrement as to
which the Association is advised by counset that the person to be
indemnified has not been guilty of gross negligence or willfu1
misconduct in the performance of his d.uty as such member of the
Board or officer in relation to the matter involved. The fore-
going rights shall not be exclusive of other rights to which
such member of the Board or officer may be entitled,. ALl lia-
bility, loss, damage, cosL and expense incurred or suffered by
the Association by reason or arising out of or in connection
-8-
with the foregoing indemnification provisions shall be treated
and handled by the Association as conmon expenses; provided,
however, that nothing in this Article V contained shal1 be
deemed to obligate the Association to indemnify any Owner of
a Condominium who is or has been a member of the Board or
officer with respect to any duties or obligations assumed
or liabilities incurred by him as an Owner of a Condominium
und.er and by virtue of the Declaration.
2. Other. Contracts or other commitments made bv the
Board of Managers or officers shall be made as agent for the
Owners, and they shal-l have no personal responsibility on any
such contract or commitment (except as Owners), and the lia-
bility of any Owner on any such contract or commitment shall
be timited to such proportionate share of the* total liability
thereof as provided in Article 6.1 of the Declaration, except
that any losses incurred because of an inability to collect
such proportionate amount of the total li.ability owed by an
Owner shal-l be shared proportionately by the Owners.
ARTTCLE VI
AMENDi\MNTS
The Articles of Incorporation and t,hese Bylaws may
be amended by the owners at a duly constituted meeting of the
Owners for such purposet provided, however, that no amendment
sharl conflict with or minimize the intended effect, of the pro-
vi-sions of the Articles of rncorporation or the Decrarat,ion.
ARTICLE VII
TRANSFER BY Oh'!{ERS
t. Proof of Ownership. Any person acquiring an interest
in a Condominium shall furnish to ihe Board a copy of t,he
recorded instrument vesting that person with an interest in
-9-
c;
the Condominium. The copy furnished to the Board, sha11 be
mainLained in the files of the Association.
2. Registration of Ma_;_ling Address. The Owners or
several owners of each condominium may establish a registered.
mailing address to be used by the Board for maiLing of monthly
statements, notices, demands and all other communications, and
such registered address shall be the only mailing address of
a person or persons, firm, corporation, partnership, associa-
tion or other legal entity or any combination thereof to be
used by the Board. such registered address of a condominium
owner or owners shall be furnished by such owners to the trlanager
or Board within fifteen (15) days after transfer of title, o:
after a change of address, and such registration shal1 be in
writing and signed by all of the owners of the condominiun or
by such persons as are authorized by raw to represent the inter-
est of (a11 of) the Owners thereof.
The requirements herein contained in this Article VII
shall be first met before an owner of a condominium shaLl be
deemed in good standing and encitled to vote at any annual or
special meeting of Owners.
ARTICI,E VIII
ASSOCIATION - NOT FOR PROTIT
Association - Not for profit. This A.ssociation is not
organized for profit. No member of the Board, officer or person
from whom the Association may receive any property or fund,s shatl
receive or shall be lawfulry entitled to receive any pecuniary
profit from the operation thereof, and in no event shall any
part of the funds or assets cf the Associati-on be paid as salary
or compensation to, or distributed to, or inure to the benefit of
any member of the Board, officer or Owner; provided, however,
always (i) that reasonable compensation may be paid to any Owner,
-10-
member of the Board or offj.cer while acting as an ag.ent or
emproyee of the Association, for services rendered in effecting
one or more of the purposes of the Association, and (ii) that
any Owner, member of the Board or officer may, from time to
time, be reimbursed for his actual and reasonable expenses
iniurred in connection with the administration of the affairs
of the Association. The provisions herein are not applicable
to the Manager who shal1 perform its Managerrs duties and
functions accordi.ng to wri-tt,en agreement for the compensation
stated therein.
The undersigned Secretary of this Association d,oes hereby
certj-fy that the above and foregoing Bylaws were duly adopted
by the Board of Managers as the Bylaws of said Assoqiatj.on
on this day of _ , 19
ATTEST:
(SEAL)
-rl-
ARTTcLES oF rNcoRponairoN
OF
TIIE BRIDGE STREET CONDOMINIUI\4 ASSOCIATION
The undersigned naturar- person hereby establishes a non-
profit corporation pursuant to the colorado Nonprofit corporation
Act and adopts the fotlowing articles of incorporation.
ARTICLE I
NA}TE
The name of this corporation sharl be The Brid,ge street
Condominiurn Association.
ARTICLE II
DURAIION
The corporation shall have perpetual existence.
ARTICLE III
PURPOSES
The objects and purposes for which the corporation is
formed are as follows:
1- To be and constitute the Association to which reference
is mad.e in the Condominium Declaration for The Bridge street Cond.ominir
(the "Decraration"), to be record,ed in the records of the clerk
and Recorder, Eag1e County, Colorado, pursuant to C.R.S. L973,
ss38-33-101 to J-09, as amended, and to perform al.r obligations
and duties of the Association and to exercise all rights and
polrers of the Association.
2. To provide an entity for the furtherance of the
interests of all owners of the condominiuns with the objectives
of establishing and maintaining it as a prime conumercial
condominium projeet of the highest possible guality and varue
and enhancing and protecting its value, desirability and
attractiveness.
ARTTCLE TV
POWERS.
In furthexance of its purposes, the corporation shall
have alL of the porvers conferred. upon corporations not for profit
by the statutes and common r-aw of the state of cororado in effect
from time to time, including all of the po!,/ers necessary or
desirable to perform the obligations an. d.uties and. exercise
the rights and powers of the Association under the Decranation
which wilr- include, but shalt not be rimited to the,foll0wing:
t. To make and collect assessment,s against members ofthe Association for the purpose of payment of the conmon expenses(incruding the expense incurred. in exercising its powers or
performing its funitions) ;
2. To nanage, control, operate,
improve the eorunon eJ.ements;
maintair.'., repair and
3. To enforce the terms, covenants, restrictions,
ditions, uses, limitations and obligations set forth under
Declaration and Bylaws of the Association and to make and
enforce rules and regulations as provided thereirl;
4' To engage in activities which will actively foster,
promote and adr''ance the interests of ar.l 0f the owners of
condominiums including the interests of the Declarant.
ARTICLE V.%<E
IVIEMBERSHIP
J. This corporation shall be a membership corporation
without certificates or shares of stock. There shalr. be oneclass of mernbership, and there shall be one membership in the
corporation for each unit, as defined. in the Decr.aration andExhibit A attached, thereto
2. Each membership shall have voting rights as is setforth in the Decraration on arl matters in which rnem.bers areenlitled to vote.
con-
the
-2-
3' A membership in the corpor-tior, shall not be assigned,
encumbered or transferred in any manner except as appurtenant to
a condominium ownership interest to which the membership pertains.
4. A transfer of membership shall occur automatically
upon the sale of a condominium to which the membership pertains,
provided, however, that the Bylaws of the corporation.may
contain reasonabre provisions and requirements with respect to
recording such transfers on the books and records of the corpora-
tion.
5. Owners shall have the right to acguire additional
condorniniums and the memberships appurtenant thereto.
6. The corporation may suspend the voting rights of a
member for fairure to comply with the rules and regurations of
the corporation or with any other obligations-of the owners of
any condominium und.er the Declaration and Bylaws.
7. The Bylaws may contain provisions setting forth the
rights, privileges, duties and responsibilities of the member.
ARTICLE VI
BOARD OF MANAGERS
r' The business and. affairs of the corporation shar.t be
conducted, managed and controlled by a Board of Managers. The
Board of Managers sharr consist of arr the owners of cond.ominiums
in the Building or the person d.esignated in writing by an orvner
to serve on the Board of Managers. The Declarant und.er the Dec-
laration shalr be entitred. to erect the members of the Board, of
Managers until such time as a majority in nurnber of the cond,omi-
niums in the Building have been sold or until January L, Lg7g,
whichever first occurs; provided, however, that the. Decrarant sharl
have the option at anytime to turn over control of the Board. of
lilanagers to the Owners.
-3-
4' The names and addresses of the members of the first
Board of Managers who shalr- serve untii a majority in number of
the units is sold, or untir their successors are duly qualified,
are as follows:
NAME ADDRESS
John V. Amato 601 East gth AvenueDenver, Colorado 90203
Ranald. IL Macdonald 601 East gth AvenueDenver, Colorado 90203
Dorothy Seneschal 601 East gth AvenueDenverr Colorado 90203
ARTTCLE VII
OFFICERS
The Board of Managers may appoint a Chairmanr one or
more Vice chairmen, a Seeretary, a Treasurer and such other
officers as the Board believes will be in the best interest
of the corporation. The officers sharl have such duties as
may be prescrlbed in the Bylaws of the corporation and shall
serve at the pleasure of the Board, of Managers.
. ARTICLE VrrI
CONVEYANCES AND ENCUIVIBRANCES
corporate property may be conveyed or encurnbered by author_
ity of the Board of Managers or by such person or persons to
whom such authority may be d.elegated by resolution of the
Board' conveyances or encumbrances shar.l be by an i.nstrument
executed by the chairman or a vice chairman and. attested by a sec-
retary or an Assistant secretary, or executed by such other person or
Persons to whom such authority may be delegated, by the Board.
ARTICI,E IX
INITIAL REGISTERED OFFICE AIVD AGENT
The initial registered office of the corporation shall be
601 East Eighth Avenue, Denver, Colorado g0203. The initial
-4-
o
registered agent shar-r be Ranard g. t'tacdonald, 601 East Eighth
Avenue, Denver. Colorado 80203 (City and County of Denver).
AR?ICLE X
AMENDMENTS
Amendments to these Articles of Incorporation shall be
adopted in the manner set forth in t.he Byla$rs, provided., however,
that no arnendrnent to these Articles of rncorporation shall be
contrary to or inconsistent with the provisions of the Declaration.
ARTICLE XI
MANAGING A9E.NT ruNcTIoNS
The Association, by its Board of Managers, may obtain and
pay for the services of a Manager to administer and manage the
affairs of the Association and, be responsibrerfor the operation,
maintenance, repair and. the improving of the common elements,
including alr of the exterior portions of the improvements
and to keep the same in good, attractive and sanitary condition,
order and repair' The cost of such services sharr be borne by
the members as is provided in the Declaration. Maintenance of
the corunon erements of this condominiurn, bilring and correction
of the comnon expenses, preparation of an operating bud,get,
maintenance of files, books and, records, the employment of
personnel to perform such duties and other services and functions
may be performed, by a Manager.
ARTICLE XII
GENERAL
This corporation is one which does not contemplate
pecuniary gain or profit to the members thereof and is organized
for nonprofit purposes. This corporation does not afford
pecuniary gain to its members incid,entalry or other$rise, but
rnembers may be paid for services actualry rendered to the corpor-
at,ion.
-5-
ARTICLE XIIT
INCORPORATION
Ranald H. Macdonald, acLino
Colorado Nonprofit Corporation Act.
Articles of Incorporation for such
indicated hereinbelow.
as the incorporator under the
signs and acknowledges these
corporation on the date
INCORPORATOR:
STATE OF COLORADO
CITY AND
COUNTY OF DENVER
I
) ss.
)
The foregoing instrument was acknowredged before me this
day of
Witness my hand and officj_al
My Cornrnission expires:
I97_, by Ranald H. Macdonald.
seal.
-6-
RULES AND REGULATIONS
FOR THE
THE' BR]DGE STREET CONDOMINIUM
L. The foyers, entrances, ancl stairways of the nuilding
shall not be obstructed or used for any purpose other than
ingress to and egress from the Units.
2. No exterior of any Unit or the windows or doors
thereof or any other portions of the cofiuinon Elements shall be
painted or decorated by any owner or in any manner without
prior written consent of the Board of Managers.
3. No furniture, eguipment, or other personal_ articLes
shall be placed in the entrances, stairways, or other common
Elements
4. Subject to the preexisting uses set forth in the
Declaration, no owner shal} make or permit any noise or objec-
tionable odor that will disturb or annoy the occupants of any
of the units in the Building or d.o or permit anything to be
done therein which will interfere with the rights, comfort,
or convenience of other Owners.
5. Each Or^mer shall keep his Urtit in a good state of
preservation and cleanliness and shall not s\nreep or throw or
permit to be swept or thrown therefrom, or from the d.oors or
windows thereof, any dirt or other substance.
6. No shad.es, awnings, window guards, ventilators, fans,
or air-conditioning devices sharl be used in or about the Build-
ing or comrnon Elements except such as shalt have been appxoved
by the Bohrd of Managers.
7. No sign, notice, Iettering, or advertisement shaLl
be inscribed or exposed, on or at any window, door, or olher
part of the Building, except such as srrarr have been approved
in writ.ing by the Board. of Managersi nor shall anything be
projected out of any window of the Building without similar
approval
o
8. A11 garbage and refuse from the Building shall be
deposited with care in receptacles intended for such purpose
only at such times and in such manner'as the Board. of Managers
may direct.
9 - Water closets and other water apparatus in the
Building shall not be used for any purposes other than those
for which they were constructed; nor shall any sweepings,
rubbish, rags, paper, ashes, or any other articLe be thrown
into the same- Any damage resurting from misuse of any water
closet or other apparatus shal1 be paid for by the O-wner
causing such damage.
I0. No Owner shall engage any employee of the Board of
Managers for any private business of the owner without prior
consent of the Board of Managers.
11. No bird or animal shall be kept or harbored in the
Building unless the same in each insLance be expressly pernitted
in writing by the Board of Managers, which permission sharr be re-
vokable if the animal becomes obnoxious to the other owners. rn
no event sharr dogs be permitted in any of the pubric portions of the
Building unless carried or on a leash, The orrrners shall indemnify thr
Board of Managers and hor.d them harmLess "g"ir,*i any loss or liabiritl
of any kind, or character whatsoever arising from or as a result of
having any animal_ in the Building.
12- No radio or ter-evision aerial shatr be attached. to or
hung from the exterior of the Buirding without written approval
of the Board of Managers.
13- The Board of Managers, and any contractor or workman
authorized by the Board of Managers, may enter any unit at any
reasonable hour of the day for any purpose permitted under the
terms of the DecLaration, Bylaws, or these Rules.
14. The Board of Managexs may retain a passkey to each
unit- No owner shall alter any rock on any door reading into
his Unit without the prior consent of the Board of Managers.
rf such consent is given, the o$rner sharl provide the Board.
-2-
of l4anagers with a key for the Board of *-.r.n.rs, use.
15. A11 damage to the Buirding or common Erements caused.
by the moving or carrying of any article therein shalr be paid
by the orrrner responsible for the presence of such articre.
16. No owner shall inlerfere in any manner with any
portion of the heating, air-condi_tioning, or lighting apparatus
which are part of the common Erements and not part of the
Owner's Unit.
L7. No Owner shall use or perrnit to be brought into the
Building any inflammable fluids such as gasoline, kero-
sene' naptha, benzine, or other explosives or articles deemed
extra hazardous to life, limb, or property without in each
case obtaining writt,en consent of the Board oi lr{anugers.
18' The owners shalt not be allowed to put an"i, nanes
on any entry to the Building or entrance to any Unit, except
in the proper places provided by the Board of Managers for such
purPoses.
19. The Owners must keep the interiors of their Units
clean and free from obstructions.
20. Any damage to the Building caused by an Owner
or o\,rners, shall be repaired. at the expense of the owner
2L. Owners shall be held responsible for the actions of
their families' agents, emproyees, visitors, invitees, tenants,
or guests,
22. Complaints regard,ing the Management of the Building
and grounds or regarding the actions of other owners shall be
made in writing to the Board of Managers.
23' The cornmon Erements are intended for use for the
purpose of affording pedestrian movement within the condominium
and of pr:oviding access to the units. No part of the common
Elements shall be obstructed, so as to interfere with its use
for the purpose hereinabove recited,; nor shall any part of the
-3-
o
Common Elements be used for general storage purposes i nor
anything done therein in any manner which shall increase the
rate of hazard and riability insurance covering said area and
improvernents situated thereon.
24. The maintenance, repair and replacement of the windows
in the interior halr which rooks into unit t-, incruding arr costs
thereof, shal1 be the individuar responsibirity of the owner or
Owners of Unit 3.
25. Fees, dues and other assessments rerating to reguired
membership in any civic or rnerchantrs organization, including
but not Limited to the vair Resort organization, shall be the
individual responsibility of the Owners.
26. The repair of any leak relating to overflow of the
drains in Unit 3, including the cost of any damage to other
units, shall be the individuar responsibility of the owner of
Unit 3.
27. The easement for parking on Bridge
part of the Common Elements shall be used by
temporary parking, delivery and l_oading and unloading purposes
on1y.
28. These Rules and Regulations may
at. any tine by the Board of Managers.
Street which is
the Orrners for
be ad.ded to or repealed
-4-
Lt
GI\'
oz
ts
llJC
I
I
l*
riro
I
I
I
I
I,
l:v
IE
IF
lq)z
l=to
<O:!=ara =<.(<}:,r
E.
=ZZU-
i o- A=X = >\rtr P 6f,
aoEZ!,(JRe fru-<oq ?IIJ ::9U EFo=*(\to
trl.F{ |Fl
Fl
oazz
f;g E@od
iErnPs >[E
; ira(/)r-q,uJ<Oz0a6z)
=<r!XEoil P
IJJ
oz!u-
J
EI
F
du
-|-J
.F{
hl
l.{o
.ta
v)
od
rl
.x
ii
=zil
6o
r-.{
'-ls
E
lu
z
,A
g
ol
q
<l
>l
.l-
6-
E E
fr
q
J
E
-
F
q
cl
F
-qI
ll
:
rl
t4
D6ryl
x
olc4
U\(
rul
1l
E
I
=Etr
uJ
(J
1
Io
E =tr =Etr
al
rrJlEI
a'\l
6l
1l
al
>l tr
(n
LIJdoo
!
-o-
E
uJz
E
F
uJF
T
<F
I.JJ <zE
IJJ F
. r't Z
<o(JF
FSt
tf
2?9?
=t=Fd6
<^
YFz()
=#iFfiz
=g
=
\JZ
<do !?.
-tE
oz
FQ
IJJ
oE
f-
I
1()
AY
IJ.JF
o
Jz
z
ze
>z
OIL
."i5
=r,*-trtvdd=
ntr!
=
=
trJ
CLtto
u.J
o-
F
o
E
o
It
oTI
.E
I
E
EI
o
F
=Elrl
o-zo
F
C)3EFazo()
Enn
z
ts
=t
r,lJ
o-
IPJ
iElo
I
I
I
I
I
l__,
l(J
ItrlLl
r3tzt^
l".,
.Ft<ro
I
I
I
I
1E
3 Rs;;5i
ftticr a
| ff;?F:
tH!H=
Y- iiEt!$ ii; iiSrHl;lln*6
\S:q?;OCi < n z F
sieiSlF,<a
<oi-r,ltr:<c < ='l
NOrl.VntvA
:<
=ZZU-
h o- 9=;f>YrP oI
oaEz>_ooer1..(JzX
LL<9q i!i^E!'XuJ
FrN(J
z
Ll
)
d)
.J
LIJ
z
fl
4
aflEoo
1
T(L
F
trl
ul
oq
fl
a
o-
F =Etr
LUEoo
J
E
FI
=l<l
>l
E E
tr
llJEoo
1
I
I
tr
ql
HI
Ri
=l=l>l
E
LJ-
a
Eoo)
I
o-
=O
E
uJ
z.
Ep
F
utF
I
E.
E.
<F
L!<ZEt!F
)E<o(JF
t<
s0
>Y
=#--1 t-!z
)at<-
YF7<)
=#itz
-O
t
=\./ z
(J
J<(JHfi
----r O
/-iz
F
C)ul-)otc
uJ
eo
)z
z
zQ
!oo
=z
O- tL
ifi
="-1=t!X6il>
o
oo
(D
.=
E=
o ii'icri
6LL
C rrro-c>rF
F
=E,l!
o-zo
F()fEFazoo
trnn
nrn
Po}.r.r2:CJF
xr.Ti-13.
:!:?
EiIl;<o".i.i?:,:<rlc(, <Ql<(-tLrX
-f:('nr5;a<(,eicili,o'o>-<O:-Lrt'Cc<!
rlir| 1,,.,
Ht3l'l
o
I
=o
zo
(!t
oz(,zzo
-{I
u,
a
F
2
tu
o-
oz
F{c
o-
I
I
I
I
I
I
tn
ul
J
FoF
at
F-
l.ljJoF
cizI
I'
I
II
F(,.n!nza 3 E :*
i*=g55o(,(J]cz(J
o
cc
6(Ll
azEU.:/ rsul 3uroF:EZ.n<\ca (D
:)ff;!\NFlI,e. co
ulFz:)zq
F
oan9=:o
=oo(foo(J u-,<rl
F6,o
LU
.{
UJ
!u
i_
=
f
o-
Iq
(J
ul
F
trl
c;
=
ooz,o
F
-Jf
anz.
(tza
trt€it
oo
-oi-o
4
.ll:tl
c,ll
tl
o
C
a
rr,
7_
'":x u,
UIrr-
.L
F
F
o
i
GrrlF
J
?
:€
o
I
.(Ja
LIJ
J
G
uJzt!(,
;J zoz
ar9zz
coO>z
)fJO
o_ rt
,dg'-: lt :<
Ii cl ;;
;llil:
nDn
o,
ao6
au
.:
Ir-5<b;:o i,-,
o_o tr.-oc- t,,or x'
tl t -
.{
1t
(J
tu
I
J
.
F()
O
)
Jo-
J
o
:c(J
l
ri o|lvn tvA
lll
=l H,l
::l rl irli*e p-[
;-, 'l !:
(?
oL
f,,{,-rQ^,.,1
Frl1
Eqef,n{ l/uc<
T-\rF,rr+-ft-,1 *' .lCt5
Jore.* ooleost?ot
la\l
P.f \JN.)D$/
o
\,':t -t\\i"
ilN+
t ''r.,
-
o**Iilr. *
(<ole 1". l'-o"
2"r12'!
(,0^'/2"'1'.0"
,.*?***
erri"at
Project Application
Project Name:
Project Description: _
Owner Address and Phone:
Architect Address and Phone:
Lesal Descriptio n nr (- , ato.x ,f € ,,r^n l/ t/ /-<-t
Zone:
Zoning Approved:
Design Review Board
o^r" /o -/ &l?
DISAPPROVAL
Chief Building Official
O (M/,^ bL+
-frA
.a-
v:
-:i
f.^
.J r-r
\ R --!5
J^al-#>-
u-frru
1 r ----+-: \-r:-J{J?---9
?
2
f
,-sta{\
---E
r6rF
!t,
^dL"-t
l;...
(v
L
_i
t-
rn
C*grqt\ rr
-rl
ll
o"\o*T)..-1
IIsr (
ta,5{''^.., \r, p.
(,n* t,.uil'n*
{,r
-tt
i,
I
q)
Project Application
Project Name:
Project Description: -
Owner Address andrPhone:
Architect Address and Phone:
Legal Description' t-ot C , eto"t 5O , ririns
Zoning Approved:
Design Review Board
,^,. /c* f i-"7f
/t.:t4
Chief Building Off icial
fl,* V, /AJ4
Project Name:
Proiecl Description:
I
Proiect Application
Owner Address and Phone:
Architect Address and Phone:
Legal Description: Lot Block
Zone:
Zoning Approved:
Design Review Board
APPROVAL
5-a/-(O
DISAPPROVAL1-o
Summary:'pc. ci
, Chief Building Official
Project Name:
Project Description:
Owner Address and Phone:
Aa';M fr.|dq,
0
Project Application
{ *-:t
Architect Address and Phone:
<'fLegal Description: Lot
Zone:
Filing
Design Review Board
Date
Motion by:
Seconded by:
DISAPPROVALAPPROVAL
Su mmary:
i i,t ,fit,,t" t, f.1t, ,r, i i'L /^i /l', /.<',-c..
C
Project Name:
Proiect Description:
Owner Address and Phone:
Architect Address and Phone:
e
Project Application
^\ t a7*- yrl 7\<, .-/ o (.J
Legal Description: Lot Block Filing
Zone:
Design Review_ Board
DISAPPROVAL
Chiel Building Off icial
h*"fitdrEr.: (303)GALLF-ARTs & cBAFTs
t e a * Th '' 1,r: 1 I .'rr '.'a, rr:a a 'a^ v! Y\- crr- <:of our ccnioati-nuir.r space -
planning to paint the outside
..;^- .i- +].^ ;^11^._,i^^ ^^1^-^.;rll{Jp - Irt Ll.g :. qrJ- l/!v-LI19 LIJMJ.
e l-r rn-^
.Jrr-.LttfJl_v-D....Coach iiouse - Solid
1 nnalrnrn cn l i A!vr:Y.,vr
Our :;ig llood Sign will stay i::te saie color as j-s,
:lack, Red, and white,
S ami;l es enc l osed.
'.ie rvoulC like to recr:ive tire pe;:r,ti.;sion of tire board as soonas i.)os:;ible in or:ler to get tl,e pai_ntnr:s out of the core ofthe village before ti-ie sumiiter scason opens.
Thank ygaen
l'loiiqo'\-irlxl;c1ga .'t+.ll is , OvJner
kt3
TOTVN Or VAII,
APPT,ICATION ITOII
CONDITIONAL USI I)IiRII]T
Application Date
Publication Date
Public Ilearing Date
Name of APP1icant
Name of Owner if different from Applicant
Mailing Address
Telenhone
Legal DescriPtion:, Block S.lz-' Filing t^1 \\*Lot
t)
APPLICATION IYILL NOT BE ACCEPTED UNLESS ACCOMPANIED BY THE FOLLOII/ING:
1. Hearing l-ee - $5efe4 + $1.40 for EACH addressed envelope' ..5'l'lD
2. A LIST OF THE OWNERS OF THE PROPERTIES WithiN 3OO fCEt iN A
Single-Family Resiclcntial; T\ro-Tamily Residential; or Two-Family
PriilarylSeconOary iesiOenti.l Zone District; or adiacent to
the suLject property in all other Zone Districts'
The orvners List shal1 include the names of a1 I owners and the
1egal description oI the property olned by each' Accompanying
'this list sha11 be pre*adOreiseO envelopes along with
Certificates and Reiurn Receipts properly fi1led out to each
owner. These forms can be oUiainlO lrorn the U'S' Post Offiee'
3. Site Plan' floor plan and other documents as required by the
Zoning Administrator
4. A description of the precise nature of the proposed use' its
operati"ng charactcristics and measures proposed to rnake the
t"" cornpitible with other properties in the vicinity'
{i;4 4"qJrrg+-^.b:'!1,3as' ('h..!
r 0s R lUqz
/" ,t /
r/a,zo uoq. - ptnto\ ,u'il ,\ovtt's?
"t- o
'4 ta.**
Application is hereby made for a Conditional Use Permit to al1orv:
gnature
* rt^l*
Qro d
PUBLIC NOTfCE
NOTICE TS HEREBY GIVEN THAT Dan Teleen for Ihe Gold. and
Silversmiths of Vail has applied for a Conditional Use Permit
to expand the front of the shop by addition of a bay window.
The Gold and Silversmith's Shop is located on par! of Block 5C
Vail Village lst Filing. The application is in accordance with
Section 18.24.085 of the Town of Vail Municipal Code.
A Public Hearing will be held in accordance with Section
18.66.060 of the Town of Vail Municipal Code before the Town
of Vail Planning and Environmental Commission on October 8, L979
at 3:00 P.M. Said hearing witl be held in the Vail Municipal
Buildino.
TOWN OF VAIL
-\
"furY-?D
fl fi't^
lfames A. Rubin
Zoning Ad.ministrator
To be published in the Vait Trail September 2!, L979
oz
ts
E
[Uo-
J^+ l-L
NlTl=
Iri l=
. tFI t<
*iru=
$l!+F
Y-
^th;E
ii, )4;(ra<(J O_
?9ilai uJ tE
UJ==itsR<ozd]zflllttlttl
n
t
I
.fl
fl
q
cl
q
d(.)
zf
J
IE
J
.lJ
a
€)orL
Ld
an
16l'F
o+)!.d(5
ii
z
-t
t<!lr\
ITl(oIr\l.+rr,l i5l c*l
xlol-l
,tl
El =Fl c6l >
<lJ
E(J
I
I
I
I
IIt'lo-
I
I
Iulot
trJl
n:l<t tr
=l o
=
tr
tltl|llldll,.llAl q>l
=t
plot Hlloldlir--l >l <.r
tltlllrll.tl
tdlEltcxtoll<l
=Jtrl <I FEl =l O
u>l!!l&l
8l
1l
<l
:EI
>lE
tr
tltllllliI l.'tlll
l_ltalI ull
lEttol
=l ilau <t Fd>l o =E
-o-
ts
LI,J
oo
J
Iu
-.I
F
UJF
IoIY
JO<F(rC)r!<ZE
I.IJ F(tz
<o(JF
t<
g=f
>Y
=<1E
:z
<x
:.F7<)e<
t
E i.
o2
<()(44
I ir L!JO
.bfl;l
=
oz
F(J
UJ-)oE
o-
uIF
o
o)r\
I
r.o
I
<\t
ts
=Elrl
o-
z
z
\J :-
(Do
=z
lL|r
J
z=
11F
55(D l.!
nn
E
=d
r..u
o-
.L
IJJ
co
E
CL
-ec,
c,TI
'tr-
3
E
E
8
o
zIF
C)fEFazo()
tr!
t
=
Lt
1!lt=;XTTI
-<9,^?
< ;. Y z Fr;'<9- l tl .:
HhUildtt:isii:::;9<;5)dF.FctiQ <(J<Ot'|ZY
iiES?;<o <H:ei3- i .. < E
o> -a<oi'ad!<d{}J
NOtrvntvA
-x
z
;
66z>-ooQZlr<
uf(L!{
,{ Gl
ill,lfr\(,olrHI
ao-
uJcr
z
Eo
z
F
Lll
Fq?
=6Z. ..1:l<oOzElj35;Eo(J(J
= ?_ 26 3g E
3 ., ?= ? - fisE{i!*EPI*eB(JO.'.ntr.()(Jf.!ur<Oz< g)arcoz)
tIt
${6l
l$
t$
leF --;
JIL
:\
\$
\$.
-\J
\Q
as
&
\N
u;
z
dt
,4
Nt\
N
llJ
o
Ja
=
l.llsl'r
l**l\-
l"
I
I i
-;
E
lr-lao
C]
Ja
=
o-
L =
E
llJx.oo
a
.t
o
L
:
tr
a
anIuEo
!EEtr
lu
o
:
c
&oo
i
F
soze
F(J
u.t
E
't'o gEilHE
av A J l'r'od ll *ozt- [ vF
s3 fl +3
t", I Yz
xb
r- t-o
J<o<9@rrr llJ
)
=
Il1f
Jz.
z--oze
602z_
=:)JOo- tL
i5i=
qH
6=
nntr
oz
o
J
5
o
CLo
ct
(D
.:c
E
Eo(,
r;34 o
F --l l,
/'jl6r. o't It> tr./l lE e.-LJ = Ia: :f
={
nn
'
Following is the description of the addition
planned to the existing structure now enclosing Kentucky
Fried Chicken's back door, concrete porch, and trash
area:
We are going to expand the existing structureto the west a distance of seven (7) feet at the
same height, same distance from Lhe building, andwith the sane exterior that now exists.
We also agree, individually and jointly, that our
trash will not fall outside the dumpster located within
said structure
The following adjacent businesses approve the plan-
ned structure.
GARTONI S SALOON By:
Title :
KENTUCKY FRIED CHICKEN By
Title
VALLEY FORGE Rrr
F
O
Fz
iJ
z
=
o
DF
z
r'HIli< F o. -/u
cr.Et]F
-,rO.a(.)
4'92?.
Ei!Fd{./)rilr -1
Li{cPYit b c( !'1 v,-^s9,.424i;i<ozE
^zzA)z=-H)I F ri oao<b<oalz;
"F5li*"*6ii;<a <
P:(/)qY- i ., < xn>-.,<oiBr! e r<c(<F".)
*l-
=
cc
IJJ
z)
z
',u
9*
d(J
o
z)
lrJ
z
a
oFzut
UJ
F
cc
CC
E
tc
a
F
tl
J
,
F
F
E
,E
=tr=uIolreto
=,2
=ql--
l
o
NO tIVn'tVn
In
U
zu=
zZ
z
troo.
t-tr9o;>
-z*<
>o
-e.i
a.r
lfEMoRtfirpu,rt
6TAIE SUIrH
JF,.RY ALORTCH
tFiTER, tt N'vt[tBER 1?74, gRlrJJi{ 6 aAk)Ex
i/otlE f8ER 21, t974
WTLDT,NG CODE AND UNIFOR],| FTRE COOE,
(31 ALL?uABLE OENSTTI _ 50 accu?t$tclEs (BASr' oiJ otJE .'(7T1.
I4I UNtriRM EUTLA],:NG C\DE, IHAWER 3.
{5I AREA IAICREASE.
16I MINTMUM OF T]l//A EX1IS OtlER 50 ACCUPANCY, PLACE APART
tEss r,/AN u THE oIsrANcE oF TflE t0t\cEsr o]ftGoNAL oF THE AREA sERuEr.
(71 ALL,U,ABLE oENsrrv = ,ccrpA.tcv tBAsE 0N To,o Exrrsl
t
o r_,
TO:
FROM:
RE;
OATET
FOLLoI/TNG ARE THE
i.,-cAsliJo unlt. ----,-.
i3-At
(a
(b
(e
U
AiisoERS T0 THE quEsrloi/s RAISED C0iJCERltrNG rilE
ttl oENstTy ts c)i,tpuTEo 0N THE REqUIREIilEA/TS 0F TAALE
(e
(d
Oance FLooz - 7 aquaze dee,t pen occupant
lgunge - lS tqunni. [ecr pez oeeunantK,ucctlzn - 200 dounne d.ee.t pen oeuytantS^4pu - 15 tq.uaie {eez ytott oeeupant,146"*"9,- 100 ,squatte [ee.t pen oe.ctutant&r-L o{nuL a}Le.a.A _ 100 dquane deeL pen ocutpant
OW1NANCE #5 SERIES OF Tg74 AOOWING THE UNIFORIIt2l
I, NOT
\
-'",*-'7
l
I
;
;.
.f--Ir
/+ BRANDESS-CADMUS\- CONDITIONAL USE PERTIIT I
\,J\N']-* .l' rsl\{4il
I --$c.€(4L.$ l. r ):N r\ { "l 'K\ tp$
,Y.,1- oq.J LJ- R\S"Tf\-
- $ifJ;{ 'fr: -$?
\\ ,uu \. Eei\tA v-r
\ \ -:t$1!) Set '0y7"-)
l$\
ns\ i
\LJ
a.
0i
'"t
q
I5
\-/
I
.L.
Robe.t J. )oyce
Jamoe M. M"llig""
AIho G. Reenea
Don R. T"o"luy
October 30, 1978
.w.wry
Mulligrtt I Reeves, P.C.
Attorneys .trd Cor.rrrr"lorg at law
Suite 710
Colorado Nationrl Buildi"6
950 Seventeerth Street
Denver, Colo."Jo 80202
James A. Rubin,
Zoning Administrator
Town of Vail
Box 100Vail, Colorado 81652
Re: Mark Cadmus and Leo Brandegs
Brandess-Cadmus Real Eslate, Inc.Notice of Appeal
Dear I4r. Rubin:
As you are a\,rare, this office represents Mr. Leo Brandessand Mr. Mark Cadmus along with Brandess-Cadmus ReaI E6tate,Inc. in connection r4rith their reques! for conditional usepermit to operate their real estite offlce at their nrid,geStreet address. Following this office's appearance on be-haLf of the above party at the planning and- EnvironmentalCommission meeting of October 24, LgTg; and after theirdenial- of our request for conditional use permit, \^re wereinstructed by.yorirself and l,Ir. Allen Gerstenberger to notifyyou of our client's intent to appeal the decision of thePlanning and Environmental commilsion with respect to theircond.itional use permit.
Pursuant t.o same, please allow this letter to constitute aformalization of our prior notice to you of our clientrsinlent to appeal the decision of the pLanning and Envj.ron-mental commission and our formal. request to 6e placed on thedocket before the Town Council to pioperly preslnt theappeal . We would request to be helrd-at ttre Vail Towncouncil meeting to be held on December 19, 19T9. The reasonfor such date instead of a November meetinq of the Towncouncil is in consideration of this officeis trial calendarduring the month of November. Both attornevs who haveworked on this sonditional use permit r.queit already havequite crowded dockets during thl month oi November and theDecember 19 date is requested. as a result.
TelepLone
(303) 5?2-0600
CABLE
MULLREEVES
CERTIF'IED,
Return Receipt
Requested
Additionally, and pureuant to our d.iscussions following thePlanning and EnvironmentaL Cornmiseion meetingr lou drefurther notified that the real estate operation-." refer-enced at the subject l-ocation shall be continuincr to operatepending an outcome of the appeal to the Town Couicil. fpresume that this is sat.isfaetory to your office, and ifthere_are any.concerns whatsoevei with this approach, pleaseafford us notice prior to taking any action agiinst saidreaL estate office. rt is suggestea tnat it iouLd avoidunnecessary initiaL confrontation if the office could remainopen at. least pending the appeal to the Town Council.
We will expecL to be in touch with your office during theensuing time period, and would assume that the above=mattersand schedules are satisfactory unJ"ess we hear from youroffice to the contrary.
Thank you for your attention.
Very truly yours,
MULLIGAN & REEVES, P.C.
By:
James M. Mulligan
JMM/jmc
James A. Bubin
October 30, 1978
Page 2
cc ! Mark Cad.mus
c,zo Box L105
VaiJ-, Colorado 8165?
Leo Brandessc/o P. O. Box l_56
,FLShIand
Park, Illinois G0035
/ Allen GerstenberqerDirector of Corunrlnity Developmentc,/o Box J-00VaiI, CoLorado g j-G57
}-)
December 7, 1978
Leo Brandess and Mark Cadmusc/o Brandess/Cadmus Real Estate Inc.
286 Bridge StreetVail, Colorado
Gentlemen:
On September 29, f978r lou made application to the Town of
Vai1 for a Conditional Use Permit permitting the use of the
space at:
Condominium Unit 4,
THE BRIDGE STREET CONDOI'IINIUM,According to the Condominium Declarationfor The Bridge Street Condominium Recordedin Book 259 at Page 669 and the Map thereof
recorded in Map Case 2, Drawer B, and in
Book 259 at Page 670
for the operation of a real estate office in a Commercial" Core
1 Zone District.
lhis application was denied in an action by the Planning and
Environmental Commission on the date of October 24, l-978.
Subsequent to that deniaL, you appealed that determinationto the Town Council in a letter dated October 30' 1978 ad-
dressed to the Town by your attorneys.
In accordance with Section 18.60.070 of the Municipal Code
of the Town of Vail, Colorado, the Town Council met for-
mal1y on the evening of December 6, 1978, to review and
act on that appeal . After discussion of the issues, the
Town Council voted to reverse the determination of the
Planning and Environmental Commission and issue the Condi-tional Use Permit for the specified location subject to the
Leo Brandess and Mark Cadmus -2-December 7, l97B
following conditionS
The Conditional Use Permit is issued on behaLf of Leo Bran-
dess and Mark Cadmus. The property in question may be usedas a real estate office by either of those individuals or bya business organization in which either of those individualsis an active participant. Upon transfer of ownership of theproperty to new owners, the Conditional Use Permit issued inthis instance by Town Council action will be extinguished andthe new owners will be subject to any and all zoning reguLa-tions extant at the time of property transfer.
The Council has decided to issue this Pernit because it istheir understanding that the Appellant purchased the locationin guestion for the use specified as a resuLt of an aclminis-trative error on the part of a town official. The Town there-fore desires to avoid damaging the Appellant in any way. Itis the Town's determination however, that lhe Appellants shouldnot benefit. unduly by retaining the ability to transfer thisconditional use to third parties. The condition of activeparticipation in any such business is therefore an attempt bythe Town to insure that at least, one of the Appellants maintainsan active financial interest in the operation of the real estateoffice under the auspices of this Conditional Use Permit or thatthe Conditional Use ceasegto exist.
This permit is effective immediately and ratifies the use ofthe property in question during the period September I, 1978to the present.
Sincerely,
Managerof Vail.V,ci\v
( -t'
I o
Robert J. |oyce
Jamee M. Molligrt
Allen G. Reevee
Don R, Te"rl"y
October 30, 1978
M.tlliettt I Ree',res, P. C.
Attoro"y. rrrJ Co.,.rrulors at L,aw
Suite 710
Colorado National Buildiag
950 Seventeeath Street
Denver, Colotrdo SO2O2
TelepLooe
(3O3) 572-0600
CABLE
MULLREEVES
CERTIFIED,
Return Receipt
Requested
'James A. Rubin,
Zoning Administrator
Town of Vail
Box I00Vail, Colorado 81657
Re: Mark Cadmus and Leo Brandess
Brandess-Cadmus Real Estate, Inc.Notice of Appeal
Dear Mr. Rubin:
As you are aware, this office represents Mr. Leo Brandess
and Mr, Mark Cadmus along with Brandess-Cadmus Real Egtate,Inc. in connection with their request for cond.itional usepermit to operate their real estate office at their Brid.geStreet address. Following this officets appearance on be-half of the above party at the Planning and Environmental
Commission meeting of October 24, L978, and after theirdenial of our request, for conditional use permit, we wereinstructed by yourself and Mr. Allen Gerstenberger to notifyyou of our client's intent to appeal the decision of LhePlanning and Environmental Commission with respect to theirconditional use permit.
Pursuant to samer please atlow this letter to constitute aformalization of our prior notice to you of our client'sintent to appeat the decision of the Planning and Environ-mental Commission and our formal request to be pLaced on thedocket before the Town Council to properly present the
appeal . We would request to be heard at the Vail Town
CounciL meeting to be held on December L9, L978. The reasonfor such date instead of a November meetinq of t,he TownCouncil- is in consideration of this officeis trial calendarduring t.he month of November. Both attorneys who haveworked on this condit,ional use permit request al-ready haveguite cro\^rded dockets during the month of November and theDecember 19 date is requested as a result.
I
,fames A. Rubin
October 30, 1978
Fage 2
Additi.onally, and pursuant to our discussions following thePlanning and Environmental_ Cornmission meetingr lou drefurther notified that. the reaL egtate operation as refer-enced at the subject location shall be continuing to operatepending an outcoire of the appeal to the Town Coui.cil. Ipresume that, this is satisfactory to your office, and ift!"r" are any concerns whatsoevei with this approach, pleaseafford us notice prior to taking any action against saidreal estate office. It is suggested that it would avoidunnecessary initial confrontation if the office could remainopen at least pending the appeal to the Town Council.
We wilL expect to be in touch with your office during theensuing time period, and would assume that, the above mattersand schedules are satisfactory unless we hear from youroffice to the contrary.
Thank you for your attention.
Very truly yours,
MULL.IGA!{ & REEVES, F.C.
*Wfrl,
ames M. Mulligan
lnc
Mark Cadmusclo Box 1105Vail", Colorado BL65?
Leo Brandessclo P. O. Box l-56
Highland Park, IlLinois d0035
Allen Gerstenberger
Direct,or of Cornmunity Developmentc/o Box J_00Vail, Colorado 81657
o
Robe* J. loyce
Jamee M. M'rlli6a"
Allen G. Ree,reg
Don R. T".el"y
November 16, 1978
Mr. Lawrence Rider
Tor.in Attorney
Town of VaiIVail, Colorado
M,rllig"'r I Reeves, P.C.
Atto.neys "oJ-Co..nr"lors at I.aw
Suito 710
ColoraJo Natiooal Building
950 SeventeentL Street
Deorer, Colorado 8O2A2
TulepLoo"
(303) 572-0600
CABLE
MULLREEVES
Dear Mr. Rider:
As we discussed, I have encl.osed fot,ro,rJ use some addi-tional information with respect to thl Brandess-cadmus RealEstate Inc. application for a conditional use permit.
As you will recall, in our earlier memorandum, we exploredthe issues of estoppel and arbitrary and capricious denial .we concludec in that memorandum that the necessarv erementsof estoppel were presenl in that there was mistaki, relianceand change of position. We also concluded that since norational reason for denial was provided by the Town. therejeci:ion was confiscatory and viol"ative 6f due process asany arbitrary use of police pohrer.
In the attached material, we have expanded the scope of ourilsuirV to incLude a number of broader constitutioiral gues-tions. rncluded is a determination that the vail- zonirigordinance is unconstitutional per sei since its horizonialzoning provisions.are unrelated to an acceptable purpose forthe use of police powers; and since it constitutei an inval-id delegation of J-egislative authority in that it allowsuncontrolled discretion in the planning Conrrnission; and,since it is viotative of the state ena6ling statutes.
It is further concl-uded that the ordinance is unconstitu-tional as applied as violative of due process and equalprotection guarantees.
o
Mr. Lawrence Rider
November L6 | L978
Page 2
I would be delighted to discuss these matters further withyou in the hope that we might assist Vail in maintaining thecharacter of the Town in a hray that will not jeopardize therights of our.clients.
Very truly yours, .
MULLIGAN & REEVES, P.C I
By:
Robert J. Joyce
RJJ/' jmc
Enclosures
cc: Allen Gerstenberger, CD Director
;Iame6 Rueben, Zoning Administrator
Pg. 2
Minutes - PBC
The third item on the agenda, Felker/Smith - Setback
Variance fo" rddition on Lot 8-8, B .
Jrcl Aool-I10n .
Mr. Bob Felker was in attendance to represent himself inthis request. The Commission questioned whether other property
owners might not come in to make similar requests. Jim Rubinstated that these variance requests are handled on an j-ndividual
basis and onee the GRFA is used up, any other requests will bedenied. The Commissj-on questioned the notification which wouldgive other property owners the opportunity to oppose this request
and- it was explained by Mr. Felker that both of his neighbors
had been informed by himself, and neither owner expressed anyopposi-tion. Jim Rubin has received no telephone calls or lettersfrom other property owners that would be affected by this request.
The Commission reviewed the plans and. pictures of thestructure in question. A Motion was made by Ron Todd f-r
approval of the Setback Variance request citlng the memorandumput together by the Department of Communi-ty Development. RogerTilkemeier seconded the illotion and the Commission voted 4 infavor of approval, and 2, Jim Morgan and Sandy Nlills, vote in
opposit ion .
Number 4 on the agenda, Vail lvlountain School - Conditional
Use Permit for a Private Schoffi2, VEir-vTrrage
l.Ztn ! 111n9.
Jay Peterson, Attorney at Law, was present to represent theVail Mountain School in their request. He gave the baekground onthe school, the need {or their own facility, and the fact thatVail Associates, Inc,, agreed to 1et them have a site once certainconditions were satisfied. He added that the people who boughtlots in this area were told that a school would probably be buittin the area. He explained that this site is ? acres, and that theproposed school will be 9,000 sq. ft. The land uses were discussed
and the thought that a private school would be desirabte withinthe Torvn. The plat map was reviewed and discussion on the lotsaffected was explained. It rvas brought out that the additionaltraffic should not have a great inpact on the homeowners as accesswill be directly off the tr'rontage Road.
The building wiIl be designed to resemble a residence (duplex)It wi1l" be two stories, will blosk no viervs and rvi1l have a park
and open space surrounding it. The maximum number of studentsplanned j-s 110 and all expansion will be designed into the buiJ.dingnow. There is a public bus stop at the corner rvhich will also_reduce the traffic, in the area.
Mr. Peterson discussed the fact that an Environmental ImpactReport wi-11 not be needed, rvhich is further discussed in the Dept.of Conmunity Development menrorandum. He read a letter receivedfrom one of the property owners that is directly affected by theschool, and the'fact that he j.s in solid support of the schoofbeing built.
o
l'{eet ing 70-24-7a
Pg. 3
Minutes - PEC Meeting LA-24-78
Gordon Pierce, Architect, then showed the Commission and
those in attendance the plans for the building and how it related
to the site. He further explained there will be a parking lot
for 30 ears, and this should be more than adequate parking'
The landscaping will include berming that will minimize the
visual impact of the sehool a.nd 1ts surroundings. He also assured
those present that the building is residential in eharacter.
Roger Tilkemeier absented himself as a member of the Commission
to explain Vail Associates' involvement in giving this site to
Vail Mountain School. He explained there are stipulations ou the
gift, such as, the Katsos Ranch house is to be restored and used
on the campus as a historic building. Moving the house would
be a Last resort, only if it is impossible for it to stay at
its present site. Other conditions include: The site would not
be available to them if a Conditional Use Permit were not granted
by the Town of Vail, that they have a firm financing plan (pledges
will not be acceptable withjn the plan) and that they submit an
operating proforma. He further' explained that these requirements
were set forth in a letter dated December 15, 1977.
Jay Peterson in answer to these statements, said they had to
start somewhere and the most logical would be to request the C.U.P.
Ron Todd also stated his feeling that the building that is
being restored should remain in that area and that it is important
for Vail to salvage some of the history of the area.
Jim Rubin reviewed the memo with the Commission and those
in attendance. He emphasized that the site can legitimately be
used for a sshool site. Thj-s is a permitted use by the Zoning
Ordinance with the issuance of a Conditional Use Permit, He also
explained that due to the site location, he did not feel the school
would have negative effects on the neighborhood. He explalned that
staff reeommends approval of this request. Additionally he explained
that he had received 12 letters, one telegram and a petition with' 30 signatures from those residents of the area , all of whomare seeking denial of this vzlriance request and are in opposition
to the school being built on this site. These were residents from
Vail Vilfage 12th and 13th Filings, and they felt the open space
should be preserved.
Mr. Drager opened the floor for public input asking those
in attendance to limit themselves to the amount of time they speak
and to try not to be repetitive.
The first speaker, Carl Oppenheim, Co-Chairman of the Vail
}{ountain School Board. He asked that he be able to answer Mr.
Tilkemeier in regards the stipulations from Vail Associates, Ine.'
He stated the Board has been working to meet all these requirements
and they are in a position to meet all the requirements at this time.
Gaynor }tiller rvas the next to speak, he owns Lot 18, in
Block 2, V,V. l2th Filing. He re{erred to the covenants of the
12th and ISth Filings and that norvhere j-n the covenants for the
' lqf
Pc. 4
Minutes - PEC Meeting LO-24-78
12th Filing is it stated that there could be a school bui1t.
The 13th Filing covenants state there possibly could be a
school (public or private) built here. He addi.tionally feels
that V.A. broke their promises to the people who bought lots
in the area, that all advertisements and brochures were made
out to make these people think that the open space would bepreserved. He stated that one of the main concerns is whether
this is rea1ly a proper site for the school since the students
will be coming from a11 over the Upper Eagle Valley, not just
within the Town of Vail proper. He wonders if there has been
enough study done on the location and perhaps the school
should be built elsewhere.
He continued that this area was represented as a low density
area and the people who own there really don't think a school
represents a 1ow density.
Sue Rychel, a teacher at Va1l Mountain School asked
Gaynor IUiller who he is representing. However, a woman whodidn't identify herself, interrupted and asked whether the
Commission didn't feel there were enough people in opposition
to the school to make them feel there should be a denial of therequest. She added that Gaynor Miller is speaking for those people
who signed the petition.
Jay Peterson feft the petition rvas not presented properly
or with the right background information to those who were requestedto sign it.
Paul Whit6, owns Lot 1O, a resubdivision of Lot ? in VV12th Filing. He stated he is very close to the sehool site,that he is really in favor of the sehool but that he didn't
hear about the school until yesterday. He is rea11y not sure he
wants the sehoot built in the proposed location and he really doesn't
want the cabin moved. He feels he has not had sufficient time toconsider all the problems and he seeks a denial to the request atthis time.
Stan CoIe then spoke, he is also concerned about the greenbelt
being preserved, he bought his lot because of this and is really
opposed to the school being built at this site.
Dave Sage spoke on behalf of Dick and Joanna Peterson whoare residents of Booth Creek- They asked to be quoted that theyare in 1007o support of the school being built
Joan Carnie, W 13th tr'i1ing, is opposed to the school for the
reasons given for the preservation of the greenbelt. She also toldlvlr. Paul l\ihite thzrt they did try to get in touch with him inrelation to the oppositi"on to the school and to ask him to attendthe neighborhood nreetings on the school's request.
Bob Buckley, VV 13th Filing stated that he was a salesmanfor vail Assocj-ates when they were serling these 1ots. He stated
Pg. 5
Minutes - PEC Meeting IO-24-78
that the salesmen did tell some of thosethere may he a school constructed in thepurchasers were not told this. He alsoled purchasers to believe there would be
which would not be developed.
people buying lots that
area, but that all
stated that a broehure
120 acres of greenbelt
Carol Fa1k, VV 13th Filing, said
should be built, but that Booth Creek
She addressed the fact there are only
Course areas that have open spaee.
she does feel the school
should remain residential
the Booth Creek and Golf
Dan Corcoran, a property o\ryner in Booth Creek stated that
he worked rvith the presentation maps at Vail Associates, and he
agrees with the statements made by Bob Buckley as to the factthat people were told there would be, permanent greenbelt.
Joel Fritz stated he bought his 1ot because of the greenbelt
represented by the sa.lesmen and everyone else he talked with aboutthis area. He also feels that very stringent controls should bepUt on the school if it is approved for this site.
Linda lThite stated she is in favor of the school if the
"sandpile" goes. Mary Ann Mull-in agreed that she would fike to
see the sand moved out, feeling it detracts from the area.
A11en Gerstenberger a.ddressed this problem by telling thosein attendance that the Highway Departnnent will be moving the sand-pile soon. Roger Tilkemeier stated that the Highway Department
does own some of this property, he is aware that the sand is to
be moved, but wonders if these same people will have more of acomplaint when the icy roads are not sanded ASAP.
Renie Gorsuch stated that she is in sympathy with thefeelings of the owners. She owns a lot on the Golf Course
where once there was a beautiful o1d cabin whieh was one of thereasons they chose the lot. Later it was moved out and she feelsthese are thi-ngs that ca"n happen i.n any neighborhood. They just
don't stay as they were initially.
Diane Lazier spoke on behalf of the school. She feels thosein attendance should look at the community as a who1e, not just
as a "neighborhood". She sees great need for thls private school ,that it fu1fi11s a great need in the community for those childrenwith special learning problems, or for those who are not emotionall-yor physi,cally capable of going to a public school. The limited
number of students makes this school a desirable addition to Vail.
Joy Schoenfeld rvho lives in Bighorn also feels the schoolis very i,mportant, and real1y doesn't think the Z acres takenfrom the 120 acres set aside for greenbelt and open space is muchto ask.
Jim Rubin explained that the A, B and C traets in the W l2thFiling are restricted to open space, but that Lot 12, Block 2 in
VV 12th Filing is owned by Vail Associates, Inc., and they can
Pg. 6
Minutes - PEC Meeting 10-24^78
determine theappropriateuse for this lot'
Pam Garton stated she feels the neighborhoodrs concel.ns
are valid, but that complaints on how the land was represented
should have been aired outside the Planning & Xnvironmental
Coqnmission hearing. This is strictly between VaiI Associates
and the property o*tt"t". She emphasized that the Planning Commission
looks at the zoning as put forth in the Zoning Ordinance and that
qertain permissable uses are listed for an Agricultural Zone
and one of them is a school. She added that the Commission w111
have to make their judgment strictly on the criteria set forth
in ttre Zoning Ordinance
Nancy Miller then stated that she feels the commission has
the responsibility of looking at the needs of tbe neighborhood
and thai the opposition to the school is so formidatrle that they
should consider denial of the request '
Bob Buckley spoke once again, stating that in regard to the
greenbelt area, gO% is behind the hillside and has a 5O to 6O%
lrade. IYhere the school is proposed |s the flatest, most desirable
part of the open space. He stated that Andy Norris has eonsidered
lhe possibility of a high school being built in his development.
carol Falk asked why vail Mountain school couldn't remain
at Meadow Mountain? Roger Tilkemeier stated that Vail Associates
is in the process of selling the land to the U.S, Forest Service
and for the F.s. to consider letting the school bulld on the land
would tre presump.tive. They could not consider this until they acquire
the land.
sue Rychel spoke again, she stated that she has the feeling
the resid.ents have a very distorted picture of the school bullding,
that they should dismi-ss the thought of a big concrete, brick
building and look at the plans as submitted, showing the building
as being very resi-dential in character.
Gaynor llllfer spoke again and requests the PEC to obtain more
facts. He feels there are many important considerations which
have been excluded from the discussions, that the Commission should
have more statistical information, i.€., where the students are
coming ftom, ho\. many are actually residents of the Town of Vail
which would shorv whether the school should aetually be bu11t within
the confines of the TOV boundaries.
'Jay Peterson reiterated that the school will impact very few
property owner.s, that the school lias been moved on the site to
appease that opposition. tle feels that in every community, people
have to sacrifice in the face of community needs
Roger Tilkemeier again exeusing himself from Commission
participation, re:rd a letter written to Jack Marshall from Bob Nott.
ttris lettel states what the prospective buyers in the area were to1d,
that lhe VV 13th Filing was suggestecl at that time as an area rvhere
Pg. 7
Minutes - PEC Meeting IO-24-78
where a school mlght be built and would be a1lowab1e under the
covenants a.nd that under the covenants of VV 12th Filing, the
school would not be disallowed.
Sandy Mil1s asked why Vail Associates is giving the school
the entire 7 acres, and could this area be reduced so that it
would prohibit the building's growth and expansion in the future?
Gordon Pierce stated the building has expansion within it.
It contains the optimum. The building itself and the play ground,
parking area, etc., will occupy no more than an acre and one-haIf
to two asres of the site. Two acres would be adequate.
Roger Tilkemeier stated it would haveonly two acres were given to the Modntainsite could be given to the school and the
Town ot Vai1.
Jay Peterson stated that limiting the
would be acceptable.
Pam Garton asked those i-n attendanceif they could agree to the ttvo acre packet
with the rest of the acreage being left as
The sj-lence was deafening.
to be resubdivi-ded if
School. The two acrerest dedicated to the
size of the building
who are in opposition
for the school site
greenbelt/open space?
Paul llhite responded, that even though he is not in eomplete
opposition to the school, he rea11y would like to see some moreplanning done. The unidentified woman who spoke earlier statedthat those in opposition do not want to see the Agricultural
Zoning maintained. They want it changed so that it will begreenbelt/open space and zoned so that it can never be developedin any way.
The Commission stated that it could perhaps be zoned PUD
with the school being the only building allowed on the site andlimj-ting the school building to 9,000 sq. ft. Jay Petersonstated that this could be agreed to. ft was brought out thatthe building as proposed is 9,657 sq. ft.
Dan Corcoian stated that these restrictions would be a goodstep in appeasj.ng the property owners. Deed restrictions werethen discussed by the Commission.
Gordon Pierce reminded those present that the plans as presented
are conceptual . It is not a final design, but that he does notfeel the building imagehas a negative impact on the neighborhood.
A l{otion rvas started, but interrupted by a question from
those in attendance who asked whether other restrictions could beput Upon the school such as the hours the school will be open,
whether tlte f acilities would be rented out to other group.s, or
whether the public rvill be allowed to use any of the facilities.
The opposition does not feel these qLrestions have been answered
sat isfactor i ly .
Pg. I
Minutes - PEC Meeting LO-24-78
The Head ida"ster fclr Vail l\lountain School spoke to this.
He stated that historically the school has not been made availablefor use by the pub11c, nor have they rented or leased any space
and.it is extremely doubtful if this would be done j.n the future.
Jay Peterson again stated they would be will1ng to acceptthe restrictions tha.t the buildi-ng be used only by the Vail Mountain
School and it would not be used for any other purpose-
The Motion was made by Ron Todd to approve the Conditional
Use Permit for the Va11 lUountain School to build a private school
on Lot 12, Block 2, YaiL Village 12th Filing citing the memo
prepared by the Department of Community Development and with
the stipulations that the buildlng will be used exclusively by
the VaiI Mountai-n School and their activities, that the buildingslze be limited to 1O,OO0 sq. ft., that if the present parking
should prove to be inadequate, the Town of Vail can require moreparking, that the balance of rhe site wi.1l remain as greenbelt
and that the proposed building will be built within the location
on the plans as presented here today. Pam Garton seconded theI{otion. After further dlscussion an Amendment to the Motion
was made relative to t.he cabin that is to be preserved as ahistori-cal artifact, that it will remaln rvithin the developmentarea. The vote by the Commj-ssj.on on the Motion as made and the
Amendment to the Motion was 5 for approval , Roger Tilkemeier
abstaining beeause of a conflict of interest. The Motion passed.
Gaynor Miller, who spoke on behalf of the opposition was.advised of the 10-day appeal period, that he may make an appealto the Town Couneil within this time frame.
The 5th
Real Estate
Brandess/Cadmus.:--.-:_._-=-------_-i--'to De located atOffice - Conditional llse Permit for aPart of Lots B & C, Block 5-C,ail Villase 'I ^r-rb t,ilins in the bu own as The Casino Buildin
Robert Joyce, Attorney at Law is representing this request.
He addressed the Commission in regard to the Ordinance which statesthat this use could be permissable, and asl<s thcm to look onlyat the negatj-ve aspects of a real estate offlce at this location.
He add.ressed the probl-em of reconstructing the conversations
between Mark Cadmus and Diana ToughilI, the former Zoning Admirristrator.
He had asked her advice after she was no longer a TOV employee.and it was felt there had been a misunderstanding between bothDiana and I'lark as to her understanding of his question and hisunderstanding of her answer. It was brought out that a BuslnessLicense has been issued and signed by alI appropriate Departments.
NIr, Joyce then reminded the Commission of their past decisionson similar requests. lle feels it would be fundamentally unfairfor the Commission to deny this request when others have been approved.
He felt that Real Estate ol-ficcs clo contribute to traffic in thearea, and they do contribute to thc amount of sales tax generatcd,especially from the property management encl of the business. He
Dcr q
Minutes - PEC Mee
I
ti-n g lo-24-78
also advised the Commission that an artist will be placing his work
in the office on consignment and this will also generate sales tax.
He knorvs and understands tlrat the Zoning Ordinance could be
changed to shut the door on future real estate offiqe, professional
offices on the first/ground floors of all buildings in CC1, butthis should not shade the Commission's decisi-on at this time.
Ed Drager asked how long the principals have been in business
in Vai1, and lvlr, Joyce answered, they both have been in businessin the Vail area for a considerable tength of time. Mr. Dragerfelt that both these gentlemen should know the zoning. Mr.
Joyss feels that neither of them have dealt that much with thecentral core in the past and could not know about this restrictionof use on first floor areas for real estate offices, especiall-ysince so many real estate offices do have space on first floors
throughout the Town of Vai1.
A-t 1en Gerstenberger stated that the use requested is not
an approprj-ate use in this location anci that the staff is recommending
denial .
Pam Garton explained to Mr. Joyce that this request was nota perrnitted use in CCl, that the Zoning Ordinance a"ddresses theuniquc character of the Village core and that the Commj-ssion hasalways felt that first floor space in the Core area should be
used by retail or restaurants.
Mr. Drager is not convinced regarding the sales taxargument; He feels that a real estate office can operate successfullyfrom somelhere other than Bridge Street.
It was brought out that the applicants have purchased thespace 1n question in the Casino Building, rvhich has been condominiumized.
Ron Todd questions the Commission being abLe to force apercentage of retail vs. business offices in the Core areas.
He maintained the Commission will have to go to the ordinanceand the criteria within it for their deci"sion.
After further discussion, Ron Todd made the Motion to approvethe conditional use Permit at the request of Brandess/cadmus for aReal, Estate Office to be located on Parts of Lots B and C, Block5-C, Vail Village 1st Filing. The llotion seconded by Ed Drager.The Commission voted-l vote for approval by Ron Todd and 5 votedagainst approval. Tli-d Motion is denied. trre representative wasadvised of the 10-day appeal perj-od..
On review of the Elmore Annexation, the Commlssion was advi.sedthat a Public Notice has been published, the public Hearing will beheld on November 14, 1978. Pani Garton r:equested that the commissionmeet for further discussion on this before the public Hearing.
Adjourned 6:30 P.lr{,
lnun
box 100
rail. colorado 81657
(3031 476-5613
Mr. Leo Brandess
Box 2328Vail, Colorado 81652
department of community development
18 September 1978
Re: Vlolation of Zoning Ordinance forReal Estate Office locatedon Bridge Street
Dear Mr. Brandess:
It has been brought to my attention that you have openeda Real Estate offiee next to Kentueky Fried Chicken in thecasino Building on Bridge street in ihe village. This propertyis located in a commerciar core r Zoning District where a Real-Estate office is not a permitted use on a floor at street 1eve1.rt is an al1owab1e conditional use which requires the applicationand issuance of a Conditional Use permit.
I have enclosed an application for a Conditional UsePermit which describes the required procedures. The conditionalUse request once submitted., will be reviewed by the planning
& Environmental commission at a regularly scheduled public meeting.At the meeting, the Planning & Environmental commission will reviewyour request according to the criteria stipulated in chapter 19,60of the Zoning Ordinance.
This Conditlonal Use Permit is necessary for you to continueoperating a ReaI Estate office at this location. I witl allowyou to remain in operation for a period of time not to exceedforty (40) days. This will give you until October 3, 1928 toapply for this permit. This will allow for a lb-day publicationperiod prior to the Planning & Environrnental commission meetingon October 24, L978.
If an application has not been submitted by October 3, lS7B,I will forward this matter to our Town Attorney to begin 1ega1proceedings.
Page 2Mr. Leo Brandess Violation of Zoning Ordinance
If you have any questions regarding this matter please
contaet me.
Sincerely,
/.dL*'o+,*4-{42;*'
Tiames A. Rubin
ZonLng Admlnistrator
JAR/gew
ENC
box 100
vail, colorado 81657
(3031 476-5613
department of community development
13 November 1978
Robert Joyce
Attorney at Law
Mulligan and Reeves, P.C.
Colorado National Bank B1dg.
950 17th St. Suite 710
Deliver, Co1o. 8O2Oz
Re: Brandess-Cadmus APPeal
Dear Bob:
At the Town Council meeting of 7 November 1978' your
request for a postponement until 19 Deeember 19?8 was discussed
anO it was decided that the appeal should be heard on November 2L,
19?8 as originally planned. (A copy of the Public Notice is
enclosed. )
The Council felt there should be a resolution of this
matter as quickly as possible. They also had no objections
to the continued operation of the Real Estate office 1n its
present location until a final decision is rendered.
If you have further questions, please contact me
Sincerely,
fu*^u ft'f*---
{/ames A. Rubin
Zonlng Adninistrator
JAR/gew
ENC
,.(
PUBLIC NOTICE
NOTICE IS HEREBY GIVEN that Brandess-Cadmus
Real Estate, Inc. has applied for a Conditional Use Permit
to a11ow operation of a Real Estate Office on a part of Lots
B and C, Block 5-C, Vail Village lst Filing. Application
has been made in accord with Chapter 18.16.030 of the
Municipal Code.
A Public Hearing will be held 1n accord with
Secti-on 18.66.060 of the Vail Municipal Code before the
Town of Vail Planning & Environmental Commission on October
24, 1978. Sald hearing will be held in the Vail Muncipal
Building.
TOWN OF VAIL
DEPARTMENT OF COMMUNITY DEVELOP]IIENT
I
W A fuA,lJ
James A. Rubin
Zoning Administrator
Published in the Vail Trail on October 6, 197a.
box 100
vail, colorado 81657
(3031 476-5613
department of community development
26 October I97B
Robert Joyce, Attorney at LawMulligan & Reeves, P.C.Suite 710, Colorado National Bank B1dg.
950 17th St.
Denver, Colorado 8O2O2
Der,r Mr. Joyce:
Please find the enclosed copy of the l,{inutes of the Planning& Environmental Commission meeting of 24 October 1g?8.
These are for your records, and as you have been ad,vised,there is a lo-day appeal period from the date of the planning &Environmental Commission's decision whereupon an appeal canbe filed to be heard before the Vail Town Council.
Devel"opment
ENC
cc: Mark Cadmus
Grade E. Wineman
Department of Co'rnrnunity
MEIUOBANDUM
TO: PLANNING & ENVIRoNMENTAL C0II},,IISSIoN
FROilI: DEPARTMENT oF COMI{UNITY DEVELOPMENT
DATE: OCTOBER 4, 19Zg
RE: CONDITIONAL UsE PERI,IIT FoR BRANDESS-CAD},IUS
REAL ESTATE. INC.
Brandess-Cadmus ReaI Estate, Inc., has requested a
conditional use Permit to allow the operation of a Real Estate
office on a part of Lots B and C, Block b-C Vail Village lst
Filing (adjacent to Kentucky Fried chicken). This is in a ccl
Zone District.
CRITERIA AND I'INDINGS
Upon review of Section 18.600, the Department of CommunityDevelopment recommends disapproval of the conditionar usePermit based upon the following factors:
Consideration ot Factors:
Relationship and impact of the use on developmentobjectives of the Town.
Real Estate offices as welr as other professional offices
require a conditional use permit to be located on the first floor
'or street 1eve1 in both cc1 and. cc2 zone Distriets. The intent of
this section of the Zoning ordinanee was to reserve street 1eve1
space for primarily retail and restaurant uses. These uses contribute
directly to the sales Tax revenues of the Torvn and generally need. a
street level location to be successful . Real Estate offices, on the
other hand, do not contribute directly to sales Tax revenues and do
not need a street leve1 location to be successfu].
There is a very limi-ted amount of street level space in both
the Village and in Lionshead Core areas, and rve feel that grantlng this
conditional use Pernit will lead to other similar requests. This
r*F*
. Memorand.um - Btuna*"?cadmus
Page 2
o
P.E.C. tO/4/L978
could severly reduce the amount of prime retail space in the
Town of Vai1.
The ef fect of the L).se on lisht and a1r,
distribution of population, transportation
f acil j.t j-es, utilities, schools, parks and
recreatlon facilities, and other public
facilitles and public facilities needs.
lTe foresee no adverse impacts on these factors.
Effect upon traffic with particular reference to
congestion, automotive and pedestrian safety and
convenience , traf f 1c f 1or,v and control , access,
maneuverability, and reroval of snow from the
street and parklng areas.
We forsee no adverse 'impacts on these factors.
Effect upon the charaeter of the area in which
the proposed use is to be located, including the
scale and bulk of the proposed use in rel-ation
to surrounding uses.
"Commercial- Core 1 District is intended to provide sites and to
maintain the unique character of the Vail Village Commercial
area, with its mixture of lodges and commercial establishments in
a predominately pedestrian environment.,' (18.24.010). Real Estate
. office usage of a CCI street-1evel location is neither in keeping
with the purpose of CC1 zoning nor the character of the Vail Village
area to which this zoning applies - pedestrian-accessed over-the-counter
retail , eating, and drinking establishments, and lodges.
The Department of Community Development recommends
that the Condltlonal Use Permit be denied based on the
following findings r
That the proposed location of the use is not in
accord with the purpose of this ordinance and
the purposes of the district in which the site
is located.
The Department of Community Developmeut recommends denial of this
wti
l'lemorandurn - Brand.efCaOmus.. Page 3 P.E.? Lo/4lrg
application. I|le feel that it wirl set a negative precedent
that could lead to the future removal of additional prime retail
space.
t
{
{
. TIFE
I
lnun
box 1ll0
yail, colorado 81652
(303) 47S5613
Mr. Leo Brandess
Box 2328
Vai.l , Colorado 81652
If an application has notI wilL forward this matter to ourproceedings.
department of community development
18 September 19?8
Be: Violation of Zoning Ordinance forReal Estate Office locatedon Bridge Street
Dear l[r. Brandess:
It has been brought to my attention that you have openeda Real Estate office nexi to Keniucky Fried chicken i-n thecasino Building on Bridge street in tne vilrage. This propertyis located in a conmercial core r Zoning oistiict where a RealEstate offiee is not a pennitted use on a floor at street reve1.rt is an allowable conditional use which requires the applicationand issuance of a Conditional Use permit.
I have enclosed an application for a Conditional UsePermit which descrlbes the rlquired procedures. The conditionaruse request once submitted, wirl be reviewed by the pranning& Environmental cormission at a regularry scheluled public ileeting.At the meeti-ng, the Planning & Environmental Commission will reviewyour request accordi-ng to the criteria stipulated in chapter 1g.60of the Zoning Ordinance.
This conditional use pe:mit is necessary for you to contlnueoperating a Real Estate office at this location. r wirl arrowyou to remain in operation for a period of time not to exceedforty (40) days. This will give you untiL october 3, rgzg toapply_for_tbis pernit. This wi-l1 allow for a lb-day pubricationperiod prior to t!9 Planning & Environmental comnisiibn meetingon October 24, 1928.
been submitted by October 3, 19?8,
Town Attorney to begin Legal
^ Tot'|il 0F VAIL. c0L0!'lAD0 '
.tgOusr{Ess LIcErisE Ar)pLIcATlotl O
;. .. tLlcense required under 0rd. #1-76)
I
Nane of Business
Ilailing AddressVail Location (
Business Phone No.
Local lrlanager's NamE
State Sales Tax Nunbei
Number of Ernployees
Suruner: Part-time
Full-time ---
Type of Business:
Ful I -time
Retail Sales (Specify)
Restaurant/8ar
r{
cGt'a
Lodg i ng
Professio
Service (Specify Type)
Tota'l area occupied by business €OO sq. ft.
Pleaie indicate ownership status: Individual_ partnership _
List 4'artners or Corporate Officers/Title Addre s s{eo '.ss.
Corporation K
rnone No.
llinter: Part-time
\sz.Vqzt- k( ?3.?S =Er//,/--l-- a-+:.. - . /r- \5
'?aZS.zz-/V-f
67,
z tc/e'-s-s
5 Dus1ne s s ormerly operate
you
o
./-t 1ffaZ/trnat lr,Ve '\-h-{€s/ Jrzc_
/e y7
v
vea
i rrp
ranc trce outsi e crty.l]-rnrtsaddress:
t rona uslness l-ocatlons In
STREET ADDRESS I''AILING ADDRESS PHONE NO.
lca t r.on llate:I J?o / /7f
lS,-D1!c of DuYincssl
,S- "Ve rz, 1,(,-/ /'i7.?lSne
Please' I{ail Applic.ation to:
Torvn Clerk. Box 100
. Vail, Co. 8f657
Zorri
Bui I di
II-rt
_j -l
331,1
|
-.=,.-.L-J .lt-'l
l,
I
I
ll
JL
- i;- ' '.1
,
"ll
' t t. r | | ll
t:
E r,,rt(J
o
-a
Y!-
l\jI
tl
l,j
tr.:
sI
Jll
q8gf,
i-.\
abo/o{S
ir
UJ
z
J
lrJ
\lri
Itq
tl
o
E
g
tr
F
z.:f
LIJ
J
_-lrztrj
Faf
Ix
LU
iet-1.'8u n
F
z
D
lrJ
(J
J
,,o: b
f9
:<
(r
6
8(J
(o
I
l-(\l
=z
f
rd
o
J
crl
+tgst;
ot-9:- tLz.:f,.:lr
_'t
o')
t-:
li
| .t-tN
E
8(r
(l)Ir
EIc
,,Y-,b li ,,9-,
!|q
rt(o
tl
-gt!i
lr-
o
ctro
a
oq
r.)b
|l
g8
Ylr
0.Eg_
I
PUBLIC NOTICE
NOTICE IS HEREBY GIVEN THAT James Mulligan, Attorney at Law,
representing Brandess-Cadmus Real Estate, Inc., has appealed a denial of a
Planning & Environmental Cormjssion decision to allow operat'ion of a Rea'l Estate
0ffice on part of Lots B & C, Block 5-C, Vail Village 1st Filing. The appeal
has been filed in accord with Chapter 18.60.070 of the Municipal Code.
A Public Hearing will be held in accord with Section 18.66.060 of
the Vail Municipal Code before the Town Council of the Town of Vail at 7:30 P.M.
on November 21,1978. Said hearing will be held in the Vall Mun'icipal Building.
TOWN OF VAIL
DEPARTMENT OF COMMUNITY DEVELOPMENT
fu^"-wfr.U4il
L{nes A. Rubin
Zoning Administrator
Published in the Vail Trail November .|0. 1978
I
a
lmn
box lfll
vail, colorado 81657
(3031 4765613
Mr. Leo Brandess
Box 2328Vail, Colorado 8165?
department of community development
18 September 19ZB
Re: Violation of Zoning Ordinance forReal Estate Office located
on Brldge Street
Dear Mr- Brandess:
It has been brougbt to my attention that you have openeda Beal Estate offlce next to Keniucky Fried chicken in thecasino Building on Bridge street in ine,vi-llage. This propertyis located in a commercial core r Zoning Distiict where a RealEstate office is not a permitted use on a floor at street level.rt is an arlowable conditional use which requires tbe applicationand issuance of a Conditional Use permit.
I bave enclosed an application for a Conditional UsePemit which deseri.bes the required. procedures. The conditionaluse request once subnitted, will be reviewed by the pranning
& Euvironmental Comrqission at a regularly scheduled. public ieeting.At the meeting, the Planning & Environmental commission will reviewyour request according to the criteria stipulated in cbapter rg.6oof the Zouing Ordinance.
This condltional use pernit is necessary for you to continueoperating a Real Estate office at this locati-on. r will alrowyou to remain ln operation for a period of time not to exceedforty (40) days. This will give you until October 3, tg7g toappfy ,for this permit. This will arLow for a lb-day publicationperiod prior to the Planning & Environmental conmissibn meetiagon October 24, 1978.
_ -If an application has not been submitted by October 3, 1g7g,r will forward this matter to our Town Attorney to begin tegaiproceedings.
l
i .-
Page 2Mr. Leo Brandess Violation of Zoning Ordinance
If you have any questions regarding this natter pleasecontaet ne.
Sincerely,
Ib,r,/'r**-eu&;*,
yJames A. Rubin
Zoniog Administrator
JAR/gew
ENC
9z<:3F
t
2,.
z
o."zv<z2a
=z:^
rJe<c
+=!<-,r
lr'l >
!r>
I\JFo
t4 ti
-6fr
2<
zz
E. E.<OO I'l
Ed
<u
2,a
FFIo><o
&<
F
F
t{
HI
F
z
Q
H
Ir,l
J
u,
z
s
o
u.l
(Jzl
tr
u,l
o
It
Fz
ut
E
uJa
UJ
q,
F
J
J
ul
Jl!
J
F
F
t
Er
ul
0.
II
z
-ao
Jf
n
--l
lre
=,
=e
i
a2
"bu"
v
DESI
DATE OF MEETING:
MEMBERS PRESENT:
o
GN BEVIEW BOARD
October 20,
BILL RUOFF
LOU PARKER
8I-Li;EfiS[{€*l-
-n€Dh4€tBDrr
ABE SIIAPIRO
SUBJECT: Silve{ Sqi!! Slpp New rrindow conceptual
ACTION TAKEN
MOTION
. VOTE:
APPROVED:
DISAPPBOVED:
BY BOARD:
IOR:
, BLOCK_, r',rLrNG
SECONDED BY:
AGAINST:
.ABSTENTION:
-) tf\ -bI $r.{r,c\ \f\--1 '< )?ii-{
F
O
z
O
z-
FI
z
arq>t< t-.
AF{{5!n
Elz:<
/^Zz=XFO<<O
;<EC
ultr
z
u,l
z
S
Fz
E
u,ltn
Itt
F
E
<(
IJJ
c
J
lll
F
J
J
F
IJJ
J
J
F
!
,E
=tr= ltl
ol+eo
=,2
=ql--
f
o o
;;d2 F.HO,a()t
{efl
nZ\E oo!a HO
F'.? :
{K:b\x
EiE
3FX
c (c
3 i?{ B,l
fI-t
rsr
-$-Q
=-z
-o
z
F
lf
9o=>
tL=
CQ>o
;ni
DATI OF I'llJliTIN
l,llilv1IlDllS 1) llISUI.IT ;
I
.SUJJJDCT:
ACTION TAKEN
llOTIOll i
VOT]!:
APPIiOVDD:
SICOND]JI)
AGA I NST
urDAfJ/lr.uvlju:
SUIII,IAITY:
t
C^s,* Qa-L^5e- B; ^
po^ ,,,ror,,5
&*L"sa-
:
' t.'a L oul6€
Amre
770
i' il j'
'Ar'Gaerott s Bntna*" {rnex.-r- ,.lAr_ooa.r
Mtt.rArxt trLOCR #
z70
box too r vail, colorado 816s? r g03.476.56r3
NIL
CI6JL!-
tr,
7
6
l.-roo\-{
,.|
sg' "--,
jecliol k.
st--.4**_.tF-l
-*I__* '_**L-J
hf 3 H?J l>l
t a a
GaRroiv s BHtD6t, S-rr+€.E"r S,quoor-u
Z,*o fu,vu,L
tsdq$$"}A$.';,r,^"
a
-mml.
\ar(
l-oTr'* ,A,r;reia
Daxce i:L#o R-
r^*'9 - tS
279,€ + 7
-- 33G
PRESENTATTON'TO TIIE PLANNTNG AND
EI\IVIRONI,TENf,AL COMMISSION
TO THE TOWN OF VArL, COIORADO
RE: REQUEST FOR CONDITIONAL UsE PERMTT
BY THE BRANDFCADMUS REAI., ESTATE, INC.
AS PRESENTED BY COUNSEIJ
FOR APPLICANTS:
}IULLTGAN & REEVES, P.C.
fgit. 710, Colorado National BuiJ_ding950 17th StreetDenver, Colorado g0ZOz(303) 572-0600
TABLE OF CONTENTS
I. Introduction
fI, Context of Actions to be Tbken
I1I. Factual Setting
IV. Fundamental Fairness
V. Community Development Recommendations
A. Sales TaxB. First Floor LocationC. General Ambiance
VI . Future Encroachment
VII. Summary and Conclusions
VIII. Legal llemorandum
IX. Attachments
TN"RODUCTION
we are ar'irare that during the rast several weeks a con-
siderable amount of discussion has taken pr-ace in vair. re-
garding the conditional use permit requests by the Brandess-
cadmus Real Estate corporation for use of a conunercial core
I facility as a rear estate office. we have also received
from the Department of community Devel0pment their assess-
ment of this Application as it relates to criterion and
finding provided for in sl-g.Go0 of the Municipat code of
vail and as it relates generarly to the relevant objectives
of the Town. Needless to say, Leo Brandess and Mark Cadmus
are as concerned as any in the community that the devel.p-
ment of the Town of vair- be conducted in a manner that wilr
conserve and enhance its natural enviroment and establish
its character as a resort and residential community of high
quality. Their business in fact depends by its very nature,
upon the acceptance of that character and environment.
Based upon all 0f the current concerns that you have hEard
to date, the following is offered as supplementaL informa_
tion to assist you in your decision.
The community Development Department has restricted,
their findings generalry to a consideration that the proposed
use wilr "not contribute directry to the sares tax revenue
of the Town,l and that the proposed business is one which
"g'enerally does not need a street 1evel to be successfur,,.
rn subsequent conversations with the community Deveropment
staff, we have d.etermined that they are arso concerned with
a eomewhat undefined factor which might be referred. to as
- r,t l
ambiance. Since we are not aware of any other negative
commente, we $rilL attempt to limit our add.itional informa-
tion to those points and. not take your valuabl-e time with
those criterion and factors which the community Development
staff feels are not negatively affected.
we feer that we wirr, in this presentation, d.emonstrate
to you that the concerns expressed by the community Deverop-
ment Department can be adequatery met. Further, we believe
that a fulJ- explanation of the facts around this situation
will lead you to a conclusion that, in the best interest of
eguity and in the interest of avoiding an undue burden, the
permit. should be issued.
CONTEXT OF ACTIONS TO BE TAKEN
The ordinances of the Town of Vail relating to con_
ditionaL use permits prescribe six (6) criteria that must be
considered before acting upon a conditional use permit
application:
(1) ReLationghip and rmpact of the use on deveropment
objectives of the Towni
(2) Effect of the use on light and air, distribution
of population, transportation facilitiesr ut_
ilities, schools, parks and recreation facilities,
and other public facilities and. public facilities
needs i
(3) Effect on traffic, with particular reference Lo
congestion, automotive and pedestri.an safety and
convenience, traffic flow and control, access
manueverability, and removal_ of snow from the
streets and parking. areasi
(4) Effect upon the character of the area in which the
proposed use is to be located, including the scale
and bulk of the proposed uee in relation to sur*
rounding usesi
-2-
(5) such other factors and criteria as the cornrni.ssion
deems applicable to the proposed use;
(6) The envirormental impact report concerning the
proposed use, if an environmental impact report is
required by Chapter 18"56.
The Planning Corunission is required to make the fo1_
lowing findings in granting a Conditional Use permit:
(I) That, the proposed. location of the use is j.n accord
ance wi_th the purposes of this titl_e and the pur_
poses of the District in which the sight is located;
(2) That the proposed rocation of the use and Lhe con-
ditions under which it woul_d be operated or main-
tained would not. be detrimental to the publ_ic health,
safety or weLfare, or materially j_njurious to pro_
perties or improvements in the vicinity;
(3) That the proposed use will cornply with each of the
appl_icable provisions of this titLe.
Ttre Planning Cornrnission is charged with considering the
above criteria including "such other factors and criteria as
Conunission deeme applicable to the proposed y"e', " This man_
datory consideratj-on suggests that there must be some reason
for denial . ft seems aLso that the reason for denial mrrst.
not only relate to the particular use, but that there must
be some rationar reason for the denial" This position seems
consistent rrrith concepts of due proceas,
Zoning is by natut:e an imposition by the State upon a
landowner's right to use his 1and. rt is well" established.
that such an imposition is justified by the police power of
the State to proteet health, safety and the morals of the
people. However, zoning restrictions must bear some rational
relationship to these objectives or they are deemed confiscatorv.
-3-
what must be kept in mind is that the property belongs to
the J-andowner and that absent adeguate justificat,ion, the
l"andowner must be allowed to use his land as he desires.
In its Zoning Ordinances, which we will assume (for the
present) are constitutionaL, the Town of Vail authorized
certain uses and conditional uses to a co[unerciar core 1
district. The uses which are authorized subject to a con-
ditional- use permit are permitted subjeet to a determination
by the Town that the particur.ar use at the particurar roca-
tion is inappropriate. since the Town made the legisJ_ative
determination that some such uses can be appropriate in this
section, the arbitrary deniar of a conditionar. use permit may
be confiscatory and in violative of due process, in that it
is a restriction on property of a use not condemned by a
zoning ordinance. rt is an arbitrary use of the staters
poJ-ice power.
Zoning ordinancee must be strictly construed. in favor
of the right of the property owrrer to an unrestricted use of
his property. Jones v. Board of Adjustment, ll9 Colo 420,
204P2 569(1949). To comport with due process the condi_
tionar use permit rnust be denied based upon a reasonable
concern which relates to the Statets power to prot.ect health,
safety and morals.
what then is a sufficient finding to deny the use of
property by the owner? Certainly a finding, supported by
the evidence, that any one of the specifically enurnerated
criteria is not satisfied would be a reason to deny the
conditional use permit. However, those criteria are so
general that such evidence woutd have to have i_ts own ration-
ale. rhat rationar-e is usualry related to particurar d.an-
gers such as the storage of gasoline or fuer oi_r in a dense-
Iy popul-ated area. In theory, the Courts are supposed to be
l-inited to reviewing the decision of, Boards to determine
-4-
whether the decision is supported by evidence. However,
this entalls making at least some judgments about the evi_
dence itself and the courts can consider the evidence itserf
in making a determination. The Vail_ Ordinances, due pro-
cess, and. the process of judicial review; aLl seem to make
it clear that in order to deny a conditr.onar use permit the
Town of vail must have some subEtantial and reasonable ob-
jeetive which ie clearry met by denying the permit in order
to deny this specl_fic use.
ACTUAL SETTTNG
Leo Brandess and Mark cadmus are the principars of the
Brandess-cadmus Real Estate company located in the Town of
Vail . During the month of August, Lg7g, while preparing to
close on a purchase of the property known as 2g1 Bridge
Street, Vail, Colorad.o, Mr. Cadmus began to complet,e his
checklist of items on which the potential_ purchase was
conditioned including proper zoning. Briefly, as you are
aware' vailrs horizontal Zoning ordinance permits the use of
commercial core r facilities as professional 0ffices, sub-
ject to the issuance of a cond.itional use permit by the
Town' since Mr. cadmus hras not specificarty famitiar with
the problems created by the ordinance, and since he had in
the past, dear-t with conunerciar. core l property on only one
instance, an instance in which zoning was not an issue, he
sought ad.vice on the question.
After naking some inquiries on the subject, he con_
tacted Ms. Dianna Toughill, a long time employee of the Town
who was reputed to be most knowledgeable on the subject.
WhiLe Mr. Cadmus was a\^rare that Ms. ToughilJ_ was no longer
an employee of the Town, he beLieved her long time exper_
ience would permi-t her to provide him with a correct ansrrer
very quickly. Her response lead him to believe that he did
-5-
not need any further zoning permit in order to undertake his
business at that, location.
l'[r. cadmus next visited with the Tovrn Clerk, Ms,
colleen Kline, in order to obtain a business license from
the Town. Ms. Kline directed. him with the form to the com_
munity deveropment office and in fact called the community
Development office to inform them of his expected arrivar.
Upon arriving in the Zoning Office, Jim Ruebenr the Zonlng
Administrator, was not there; however, his assistant, Jeff
Flag was availabr-e and. signed the permit on beharf of the
Zoning Department.
These activities occured prior to the 30th of. August,
1978' Therefore, with these assurances in hand, Mr. cadmus
proceeded to conract his attorney in Denver and conduct a
closing on the property. It shoul_d be noted that, while the
contract for the sale of the property would, have permitted
the Brandess-Cad.mus Real Estate company to withdraw if
zoning prohibited their use of the property as intended, the
active closing extinguished those rights by merger into the
conveyance documents .
Subseguent to the closing, I,Is. Toughill encountered
I"lark cadnug and informed him that there was indeed a probrem
with respect to obtaining a cond,itional uge permit. He vras
later formatly contacted by the Zoning Administrator, and
informed of the necessity to undergo the formal procedures
we are now engaged in.
The current and planned uses of the
order of importance, the following uses:
estate, property managementr and. the sale
consignment.
property include an
the sale of real
of art work on
FSNDAMUNTAI. FAIRNESS
The Brandess-Cadmus Real
sharehoLders have to d,ate put
Estate Corporation and its
in approxirnately ;225,000 to
-6-
the operation of the real- estate business at this location
in vail- This commitment was made under full expectation
that the sight wourd. be available for the intended purpose.
This commitment was not undertaken frivor-ousry and was
supported by a reasonable inquiry on the part of the Cor_
poration as to their ability to so operate and in fact the
issuance of a business License by the Town of Vail per_
mitting said use at the location. t{hire the legar issues
associated with the issuance of this License are dealt with
at aome length below, it is clear that the primary issue is
that it is highly unfair to issue a business license assign_
ed by the Zoning Administration of the Town and thereby
induce the expenditure of approximately two hundred twenty five
ttptrsand dollars onJ.y to later inform the business, after al1
of those many commitments have been incurred, that the
previously approved use is no longer approved due to a
presumed mistake on the part of the issuing authority.
The concept of zoning gives immense power on the part
of duly elected officials to effect the property rights of
individuare to the benefit of the community. Arong with
this innense povrer come. a concurrent obrigation not to
injure unnecessariry a private individual when the advantage
to the pubric purpose if it exists at all, is minimal_. Here
we have a use which is clearry permitted as a eonditionar_
use' This indicates that the code and therefore the peopl-e
of vail, visuarize its intrusion on their pubric interests
as not particularly bothersome. ?ile aLso have consid.erabre
data indicating that the two specific objections of the
Community Development Department, i.e., tax loss and the
necessity of having a first froor l0cation for a real estate
office are open to guestion- Balanced against this, we have
two hundred and twenty five thousand dol_lar investment, in good faith,
with the inducement of the Toxrn.
The Town of Vail" has been remarkably effecLive in
maintaining its character and atmosphere through the use of
its Zoning Laws. Much of this effectivenesa can be at-
tributed to the traditional fairness with which those l"aws
have been appi"ied. For example, in September of L976, a
conditionaL use permit was issued for the operation of a
barber shop in the central core area because '!a buirding
permit was inadvertantly issued. and rdmodeling completed
before the appricant. was informed. of the need for a con-
ditional use Permit". Later, on Marqh 10, 19T8, the plan-
ning commission found that a condit,ionar use permit shouLd
be issued to vail Associates because "a real estate sales
office could create somewhat more activity than ticket
office". (Although simpty looking at the nurnbers involved,
seem to make that determination questionable.) And as late
as Julyl 1978, Canada's of CoLorad.o, Ltd. r was allowed a
conditional use permit to continue the operation of a real
estate office in a central core area on the first fLoor.
Here we have a use which was undertaken after rea-
sonable inquiry and approval of a business license, indi_
cating compliance with appropriate zoning by the Town in a
fashion simirar to the barber shop incident of so*e two'
years ago. we also have a use rahich has been criticized as
reducing pedestrian traffic when less than 6 months ago an
identical use was seen by the pranning commission to gener-
ate more traffic than the sale of ski tickets. we also have
a use that the Community Development Department finds ,,not
in accord with the purpose of this ordinance and Lhe pur-
poses of the District in which the sight is located", des_
pite the fact that on.fuly Z, 1978, l-ess t,han two months
ago, the same cofiununnity Devel0pment Department found t,hat
-B-
an indentical use was in "accord with t,he purposes of this
ordinance and the purposes of the District in which the
sight, was rocated." in approving a conditional use permit for
Canadars of Colorado, Ltd.
We additionally bring to your attention again, a matter
that \.ras discussed by Mr. AIIen Gerstenberger at your meet_
ing of September 26, 1978. Conditional uses are not, by
definition prohibited uses, Rather, they are permilfed uses
subject to refusar by the Town upon a showing of a negative
impact. Mr. Gerstenberger guite apt,1y stated this per_
pective when he said "Now, r talked to Rider about this and
what it kind of comes down to is that we l_ist criteria and
if we can't show that they are having a negative impact on
us, then they are in good slrape. fhey do not necessarily
have to prove that they are doing anything.super good be_
cause basically it is a permitted use."
In summary, lhe issue of fairness in this case comes
down to the fo1l0wing. The Town requires a demonstration of
significant negative effects to refuse the permitted use.
No such showing has been indicated. The Town has on re-
peated instances in the past, determined that, such a use is
not negative yet here it is argued that the same use is a
negative. rn the past, when expend.itures have been made on
the part of the businessmen, based upon an incorrectly
issued permit by the Town in the interest of fairnessr the
Town has determined that a permit should issue. We feel
that it is clearly within the parameters of fairness and
equity to issue the permit at this time"
A. Sales Tax Revenue.
We are a bit confused by the apparent inconsistent
findings of the community Devel0pment Departrnent on october
4 ' r97B ' rn their recommendations to the planning & Environ-
mental Commission regarding this conditional use permit,
-9-
they find "rea]- estate offices, on the other hand, do not
contribute directly to sales tax revenues,'. yet the facts
show that of the total sales made by Mark and Marta cadmus
from January, 618 were parties who came specifically to vail
upon being contacted by either Mark or Marta to purchase
real estate. These parties spent anywhere from 3 to 5 days
looking over the Vaj-l area. During this time, they con_
tributed to sa1es tax through l0dging, food - restaurants,
and gift items. rt is arso a fact that 4r.* of those individuar-e
used a 10ca1 interior decorator and spent in excess of
$80r000 tocally in refurnishing their new apartments. It
may be that their recommendation regarding the Conditional
Use Permit is based upon the word "directlyr'. It seems,
however, tbat the rationar decision shourd not hi-nge upon
how t,he sales tax gets into t.he Town coffer, but what act or
actions in fact generate the sales tax in the first place.
rt would therefore seem that contrary to the negative re-
commendation of the Cornmunit,y Development Department, real
estate operations do in fact contribute to the sales tax
base of the Town.
"wo additional factors which were not, we believe, con_
sidered by the cornmunity Development Department in making
their determination, are related to ancillary business
purposes of the Brandess-cadmus Rear Estate corporation.
vihile the primary purpose of the Corporation is indeed, the
purchase and sale of real estate in vail, the corporation .
also engages in property management activities. Those
property management activities do resurt in sales tax re-
venue to the Town. At this moment. the Corporation is
managing properties which should generate a sales tax re-
venue of approximately $5,000.00 in l97g and is undertaking
an active effort of program devel0pment to continue in that
-10-
direction. It is our estimate that during the second year
of operation, it is not unreasonable to expect a sales tax
revenue of $15,000.00 to be contributed to the Town as a
result, of t,heir operations.
A second ancillary use which is currently being planned
by the Brandess-cadmus corporation is the sale as a con-
cessionaire of art work to the general_ public. It is in_
tended that the offering of art work for sare and the offering
of Vail real estate propert,ies for saLe will be compli_
mentary. Needless to say, t.he sale of such art work shaLL
also generate to the T.wn additional eares t,ax. our current
estimates indicate that approximately 93,500.00 a year will
be generated in sales tax as a result of these sales.
B. Elqst Floor Location.
The nature of the real estat,e profession in a resort
community is by definition somewhat, d.ifferent than its coun-
ter-part, in an urban setting. In an urban setting it is
conceivable that a commercial real estate operation rnight
prosper as the resurt of referral business when l.cated on
the second floor office. vaiL j-s a somewhat geographically
isolated community, however. Many of the cLienteLe of the
real estate practice in Vail have no connection with any.
individual currently living in vail. They oftimes undertake
their exploring the real estate market in Vail by simply
walking down the street and seeking out a company which
holds itself out to be an expert in local condilions. Thus
in Vai1, the marketing act,ivities of a Real Estate Company
become much like the marketing activities of a boutigue, a
restaurant or other retail 0perations. The walk-in client
and their subseguent referrars, wilr7 in the urtimate sense,
determi-ne the bread .rr'd bott"r business to be obtained bv
the Company.
- 11-
Graphic evidence of this perspective can be seen in
Vail today. You might note from the attached listing that
of 17 real estate operations currently in VaiI, only two
have been in business for more than a year with second floor
locations. While in an academic sense, it. is possible to
agree with the recommendation of the community Devel0pment
Department that real estate practices are not necessariJ.y
located on the first floor, in this specific instance ar
least, with a very narrow market and a very narrow access to
clientele, we feel that the distinction does no. ho'd true.
C. General Arnbiance.
While not spoken to directly, the underlying objection
of the community Devel0pment Deparrment. appears to be that
an additional real estate establishment wiLl damage the
over-arr ambiance which has devel0ped as a reeult of the
mixLure of lodges, commercial establishmentsn etc. in the
commercial core area. As evidenced by their reliance upon
two fairly indefensibl-e specifics, such a concern is very
difficul-t to pin down. We would, however, poinL out t,o you
that it is only recently that the Community Development
Department has begun to see real estate operations as ad_
verse to the over-alL nature of the community. We would.
also point out the major part that rea1 estate plays in a
resort community such as VaiI and further we might note that
the tastefur- br-ending design of the office space does not
insert itself adversely upon the surrounding uses.
After struggling to grasp the concept that appears ro
be the underlying factor of the Department of Communit.y
Development objection, it seems to us that their real con_
cern is not the individual real est,ate use, but the poren_
tial effect in aggregation of a large number of real est,ate
uses. While it is certainly a reasonable perspective to
-L2-
taker we question whether it. is a reasonable perspective to
take on an individuar application. rf the Town has strong
concerns that the aggregate number of real estate est,abl_ishments
has a negative effect. then the zoninE ordinance should be
amended to so reflect that concern. rt is not a reasonable
perspecti.ve to take a currently permitted use and use that.
as a position from which to make generarized forward rooking
policy decisions- suggestions dearing with the Town's legit-
imate concern in this area are another subject in rhe next
section.
FUTURE ENCROACHMENT
As the pJ_anning Commission of the Town of Vail, you
must realistically face the practical problem in the appro_
val of this Application. while the approvar of this condition-
a1 use for a mere 500 square feet wir.r- crearry have minimal
effect on the over-all plan of the Town of Vailf you must
consider the possibility that you will be setting a precedent
which will, in the future, force you to significantly darnage
the Townrs developmenlal goals. Again, you are rvell aware
that the review of the Conditional Use permit request and
positive action on such request is legally not binding on
you as precedent. conditional uses are to be decided on a
case by case basis. This is of course, however, not an
answer for t,hose of you rvho must sit here and determine each
of those individual cases with the respective proponent
saying: "WeLl, what about him?,, As far as that argument
ltoes, and in addition to the obvious reli.ance on the busi-
ness liscense issued in this case, kre certainly have had no
reluctance in pointing out to you that until your recent
refusal 0f a similar but distinguishable requesr by Bench*ark
fnvestments, Inc., the Townrg actions with respect to a
number of ot,her entities would indicate no significant
aversion on the part of the planning Commission in granting
-13 -
such a conditional use.
Clearly, you must event,uaLly deal with the issue of how
much is too much in this context, not so much as precedent,,
but as an examination of the net effect of arr conditional
use permits and uses by rights within a particular area. we
submit to you, however, that such a review of aggregace
impact should be cond.ucted either within the context of the
Town of general- planning process with fuLl input from the
citizenry or, in the alternative, as part of the fully
staled opinion in conjunction with the approval of this
permit. rn the later instance, it would. seem reasonable
that this Committee could let it be known in its public
statement regarding this conditional_ use permit, their
considered. opinion, that any future such requests would be
looked at negatively.
These suggestions are not made frj_volously. It is
quite clear from the discussions of this committee dated
September 26, L91 8, and from the minutes of the Town Council
Work Session on October 3, Lg7B, and from our conversabions
with Mr:. Allen Gertenberger, the Director of Community
Development for the Town of Vai1, that. an opinion is be_
ginni-ng to form strongly in official circles that additional
real estate offices in the central core areas wilr have
negative effect, on the over-all charact.er of the Town. rf
Town officials feel sr-rongry that this is the case, and
comments by individuals such as Mr. slifer and Mr. Donavan
on the Town council and Ms. Mirls on the ptanning commission
indicate that such an opinion is beginning to form, then
they are compelred to act- The question then becomes one
simply what is the appropriate method of acting. Should we
rnake policy on this j_nd.ividuaL instance, or should we,
through the normal procedures of the Town, gain input from
the community and take official action to limit in the
future the conditions we hope to contain.
-14 -
SUMMARY AND CONCI.,USIONS
The Official-s of ttre Town of Vail are in the midst of
attempting to take a policy position limiting the further
encroachment of office and professionaL businees uses in the
first level- central core areas. This position is one which
seems to have been arrived at quite.recently. The first appli-
cation of policy being in the recent refusal_ to grant a
Conditional Use Permit to the Benctrl4ark ReaLty Company.
The Planning and Environmental ComrnisEion of the Town
is currently reviewinE a request from the Brandess-Cadmus
Real Estate Corporation for a Conditional Use permit in the
central core area. This reguest differs significantJ_y from
the BenchMark case in that, among other things, an apparent
error on the part of the Town ind.uced Brandess-Cad,mus Real
Estate, Inc. to beLieve they were opening an allowable use
at their location and to undertake considerabre expense in
opening their business. Also, both the rnisrepresentation
and reliance upon it occurred prior to the time of the
Benchlvlark decision. Therefore, despite the sequence in time
of the tr,ro reguests for Conditional Use Fermits, in point of
fact, the Brandess-Cadmus issue arose first.
There is no question that the sign-off by the Zoning
Administration of the Town on a business license is desig-
ned, according to tbe Cornmunity Development Department, to
"make sure zoning is aLLowed twe tell her (the Town Clerk)
it is a permitted use in the area,."
Given this factual situation, a conrmon aense of fair-
ness dictates that the Town shoul-d acquiese in the matter
and not penalize a citizen in the substantial way it would
in this case.
Additionally, it is pointed out in the legal memorandum
attached' due process reguires that substantial reasons be
-1-
provided when the Town intends to d.eprive a citizen of the
use of his property, particularJ-y when it is in fact a
permitted use. past action by the Town and present in-
format,ion do not seem to carry the burden of substantial
reason necesEaly.
It is further apparent, that when a government misleads
(intentially or accid.ental-j.y) its citizens, and those citi_
zens rely upon that misrepresentation to change their posi_
tion, the government cannot later act adversely to the
citizen ignoring its own error.
I'inally, we are well aware that, there is a fel_t need by
lhe Town to lirnit further encroachment of office uses in the
conunercial" core 1 district, The Town can accomplish this in
a number of ways, the least, effective being to aEtempt to
set policy through a negative decision in this case.
The most effective procedure would be to dear- with the
matter directly and publically by altering the base zoning
ordinance !o more clearly control 0ccasions when such uses
are to be permitted.
As for the matter before us, Lhe traditional fairness
and good faith of the Town of vail dictates that it must, in
this case, permit the use requested and enforce its new
perspective through a more formal and reguJ-ar channel pfo-
vided by statubory authority to change an Ordinance.
-2-
MULLIGAN & REEVES, P.C.
October 23, 1978
MEMORANDUM OF LAW
Topj.c:THE REQUIRED ISSUANCE OF A CONDITIONAT USE PERMIT
I. ESTOPPEL
A. In General, The applicability to governmental entities.
The concept of requiring a governmental body to abide by
positions taken by its employees and agents was not accepted as
easily as the application of equitable estoppel to private
entities. The thinking was that governments became too large
to keep track of the promises made by ever person in a position
of apparent authority. It seemed more logical to have the
citizenry responsible for knowing what a government courd and
could not do.
"persons dealing with a municipal corporationmust at their peril take notice, not only of thepowers vested in the corporation, but of the modeby which its powers are to be exercised.,, Srnith
Cana1 Ce_.,tt. Denver, 20 Colo. 84, 36 p. 944;-(overruled, as discussed infra. )
This rationale produced inequitable results, especially in
all such misleadings done inad.vertently and in good faith.
The Courts have adjusted to the obvious inequities in
absolutely precluding recovery. Doctrines have developed whereby
recovery j-s authorized where the equities demand. The case of
Normandy Estates Metropolitan Recreation District v. Normandy
Estates Limited, 553 P. 2d 386 (1970), specifically overruled
prior cases which precluded recovery agai-nst a municipality'on the
basis of an untra vires act or cont.ract. This case involved pro-
perty which the city contracted to purchase. The city executed
the contract \rrithout complying with its required procedures. The
land was conveyed, and the city took the position that the contract
instances where citizens thorouqhlv checked qovernmental
9!!ions, but were misLed by governmental aqents and lications,
r'tas not enforceable, attempting to retain the land and avoid payment.
The supreme court of colorado reacted to the potential injustice l
". .The obligation to do justice rests uponall persons, natural and artificial, and if acounty obtains money or property of otherswithout authority, the law, independent of anystatute, will compel restitution or compensation.
: :" (guoting from Qbg?@,107 u. s. 348,2 S.
The colorado supreme court thus alrowed equitable recovery against
the governmental entity.
similarly, colorado 1aw provides for estoppel against govern-
mental entities in proper cases. The city must take a position,
upon which the person must reasonably re1y. once the elements of
estoppel are present, the doctrine will be invoked to prevent
P.zd 725 (1970); The City and County of Denver v. Stackhouse,
I35 CoIo.289, 310 p. 2d,296 (f957); Miller v. palmer Lake, 36
Colo. App. 85, 534 p.2d, L232 (f975)
The City of Aurora was estopped to claim a breach of con-
tract in the case of Flanks v. city of Aurora, which serves as an
example of the utilization of the doctrine of estoppel. The city
contracted with plaintiff for construction. The city supervised
every detail of the performance. The supervising engineer instruct-
ed Plalntiff to disregard the original contract specifications and
proceed in a different manner on one parL of the project. The
city was then estopped to deny the authority of its engineer.
Franks v. City of Aurora, 362 p. 2d 561 (1961).
The city of Denver vras estopped to plead noncompliance with
legislated notice reguirements \4ihere the designated recipients of
the overlooked notice had initiarly acknowledged receipt of the
firsl correspondence. Wilson v. City and County of o , 44g p.
2d 822 (1969).
E Estoppel to Exclude Use ,p-ursuant @
.
The issuance of a permit by a municipality can be the basis
for invoking the doctrine of equitable estoppel. rf the courts
find just.ifj.able relj.ance upon the issuance of a permit, the
-2-
city can be estopped from adopti-ng a position that differs with
the effect of the permj_t. The line of cases which are now
examined involve the issuance of a permit by a city in accordance
with the applicable law at the tine. Then, legislation is
enacted rendering the use of the permit il1egal. Usually, the
legislation reLates to zoning. Assuming reliance (usually
dollars) upon the permit, the city is estopped to enforce the
legislation against the permitee.
vlhere the permit was a buirding permit issued in response to
application to construct a 14 story building, and the legislation
was Denverrs Ivlountain view ordinance, the colorado supreme court
upheld the right of the d.eveloper to build. In Crawford v.
Mclaughlin, supra, the city did not dispute the right of the
developer to build based upon a building permit. Rather, the
city took the position that the permit that was issued only
appli-ed to the foundation, and that subsequent permits would
have to be issued for buirding of the structure itself. rf this
position \"ras sustained, the deveroper could not show reasonable
reliance upon a permit. because no permit to construct 14 stories
would have been issued. The supreme court reiterated its position
table estoppel obtains aqainst a city to prevent manifest
injustice where there was justifiabre reliance upon a position pre-
viously taken by the cit The Court found that that permit, appli-
ed to the construction of the entire building, that reliance was
present in the form of 50,000 dollar indebtedness to an architectur-
aI firm for building design and expenses for razing the existing
structure and for construction of the found,ation, and finarly that
such reliance was justified. Therefore, and presumably based upon
the doctrine of estoppel, the building code board of appeals acted
within its jurisdiction in ordering the Director of the Building
Department to recognize the building permit as a general buirding
permit which wourd apply to the construction of the entire buildinq.
-3-
The crawford case aptly d.e.monstrates the elements of estoppel
which are necessary to persuade a court to grant relief. The
city took a position by issuing a building permit. The city
had certified that construction of such a building was not
prohibited' The court found that there was reLiance upon that
position in the form of indebte,lness amounting to many thousands
of dollars. F5-narry, the court found. that such reliance was
reasonable. As a result, the c.ity was estopped to deny the
validity of the building permit.
The failure to show one of these three eLements i.s generally
fatal to the claim of estoppel. In Cline v. City of BouLder,
450 P.2d 335 (1959), the Supremtr Court refused to invoke the
doctri-ne of equitable estoppel because no reliance courd be shown.
The landowners had obtained a brrilding permit to buird a service
station- The court noted that at the time of obtaining the build-
ing permit, the landowner admitted that the station was in the
"dream stage". on that date, the landowner tor-d the city council
that he needed 90 days to conduct a land use study. The court re-
cited no expenditures made in reliance on the permit. The court
went further and suggested that the procurement of the permit was
merely a tactic, and presumably therefore, reliance would not be
justifiable anyway. The Court concluded that the possession of a
License does not per se vest such a property right in the owner
that subsequent rezoning is inef:fective.
The cline case does appear to recognize that once the permitee
has materially changed his posiLion in reliance upon the permit,
the doctrine of estoppel is so established in this context that
a right similar to such a propertv riqht is created.
The holding in the Cline case was applied in Wi_tkin Homes. Inc. ,
v. Cit of Denver, 594 p.2d 1121 (L972). The
Court of Appeals therein ruled that the mere procurement
building permit would be insufficient for application of
doctrine of equitable estoppel.
Colorado
ofa
the
-4-
The rationaLe in the above cases is similar to the doctrine
of prior nonconforming use. It would be unreasonable for a city
to zone an area for three story buiJ-dings or 1ower, and then re-
quire the demolition of estabLished skyscrapers. Such conduct
deprives the landowner of property without due process of law.
The same reasoning applies to a landowner who has gone to sub-
stantial expense in preparing to construct a building. It isn't
a prior nonconforming use since the building isn't constructed
yet, but the result is just as inequitable. In Colorado, the same
reasoning and result.s obtain when the law remains constant, but the
city has taken a position which misleads the landowner or business
to make substantial expenditure.
C. Estoppel to Repudiate Prior Position Advanced by Mistake.
As in the previous line of cases, the issuance of a permit
by a municipality is again the basis for invoking the doctrine
of eguitable estoppel. The per:mit is issued in contravention
of the applicable 1aw, but under such circrmstances as to make
reliance on the issuance justifiable. If the Court finds
actual relj.ance (again dollars), the City is estopped to adopt
an inconsistent position.
City and County of Denverv. Stackhouse, 310 P. 2d 296, 135
Colo. 289 (1957), involved a de.yeloper who was ordered to discon-
tinue construction of a four-un.it multiple dwelring' on a designated
parcel of property. The ordered discontinuance was based upon zon-
ing restrictions. The develope:r had obtained a building permit
to construct the dwelling. Prir>r to obtaini-ng said perrnit,
the developer personally checked the zoning and was advised that
such a structure was permissible. In addition, the developer
obtained a zoning map from the r:ity, which map showed the land to
be zoned so as to allow the con:;tructi-on of the unit. ?he Court
noted that the developer had spent $18,000.00 in eonstructj_ng the
building prior to being ordered to cease construction. Based
upon these facts, the Court found this to be a proper case to
-5-
invoke the doctrine of estoppel to prevent manifest injustice.
Accordingly, the city was estopped to deny the validity of the
permit despite the prior zoning ordinances rendering such con-
struction i1lega1 at that location.
An important element in the Courtts evaluation of these
cases is the element of reliance. City of Sheridan v. Keen,
524 P. 2d 1390 (Ig74I . involves the refusal of the courts to
invoke the doctrine of estopper where detrimental rel-iance upon
affirmative representations of E.he city was not shown. A truck-
ing company relocated its operab.ions center from outside the city
to within city boundaries. parE, of that move involved moving a
mobile home trailer which was used as a residence by the company's
nightwatchman. A city building inspector knew of the intend,ed
move and use of the trailer, an(i faiLed to make objection. After
the trailer was moved, the company was served with a criminal sum-
mons for the trailer. The company instituted this civir action
to obtain relief- The court forrnd that the company had not chang-
ed thei-r position in reliance upon affirmative representations of
the building inspector. The bu:Llding inspector had merely failed
to voi-ce an objection. After the move, some representations were
made, but there was no evidence that the company changed its posi-
tion in reliance on these representations since the move had al-
ready been made. Thus, the court made two findings. Before the
move, although there was reliance, it was not justifiable since no
affirmative representations had been made. After the move, although
reliance would have been justifjlable, there was no reliance, since
there hras no change of position.,
The cases have involved mostly building permits. Reliance upon
a busj-ness license can also iustify invoking the doctrine of equit-
able estopper. rn crine v. city of Boulder, supra, the supreme court,
of colorado quot.es from Mceuillern on Municipal corporations:
"The general rule is that permits for buildings
and businesses are not per se protected againstrevocation in effect hy subseguent enactment or
amendment of zoning lerws prohibiting the building
-6-
business or use for which they have been issues.That is to say, a municipality may revoke a per-mit where zoning is enacted or changed to prohibit
the use and where the permitee has not materially
changed his position in reliance on the permit."
8 McQuillan, Municipal Corporation S25.156 (3rd
Ed. r965).
In Mj.ller v. Palmer Lake, supra, the developers acquired a
building permit and business license. The proposed site of the
commercial building lras in an area that had been newly zoned as
strictly residential. The grounds of this decision. relied more
heavily upon the issuance of the building permit and the 30,000
dollar reliance thereon, but in passing, the Court mentioned:
". .Furthermore, not only had the partnersobtained a building permit. and, based thereon,acted to their financial detriment, but they hadalso received a business license some months ear-lier at a meeting at which the intended zoning had' been discussed.
In that regard, when the town officials approvedthe license, the permittees justifiably could havebeen misled by the colloquy that took place amongthe Board members, the Mayor, and the town attor-ney over the effect of possible future zonihg ofthe property. . u
Strictly speaking, the affirmative misrepresentation that the
court alLudes to is the discussion about future zoning in council
and the relation thereto of the granting of the business permit.
The discussion is a necessary erement because the zoning law chang-
ed after the issuance of the business permit. rn cases where the
zoning law was in effect prior 'to the issuance of the permit, the
issuance itself should be a suf:Eicient misrepresentation upon which
to base tLe doctrine of eguitable estoppel.
II. ARBITRARY AND CAPRICIOUS DENIAL
A. Mandatory_Criteria for Dete:rmining the Acceptability of a
Particular Conditional Use.
The ordinances of the Town of Vail relating to Conditional
use Permits prescribe six crite:ria that must be considered before
acting on a conditional use pernit application:
l. Relationship and :Lmpact of the use on develop-nent objectives o:E the town;
-'7 -
2. Effect of the use on light and air, dist.ributionof population, transportation facilities, utilities,
schools, parks and recreation facilities, and otherpublic facilities and public facilities needs;
3. Effect upon traffic, with particular reference
to congestion, automotive and pedestrian safety,
and convenience, traffic flow and control, access
maneuverability, and removal of sno\,v from thestreets and parking areasi
4. Effect upon the character of the area in whichthe proposed use is to be located, including thescale and buLk of the proposed use in relationto surrounding uses;
5. Such other factors and criteria as the commi-ssion
deems applicable to the proposed uset
6. The environmental impact report concerning the
proposed use, if an environmental impact reportis required by Chapter 19.56.
The planning commission is required to make the following findings
before granting a conditional use permit:
1. That the proposed location of the use is in
accordance with the purposes of this title
and the purposes of the district j-n which thesite is located;
2. That the proposed location of the use and theconditions under which it woul.d be operated ormaintained will not be detrimental to the public
health, safety or welfare, or materially injuriousto properties or improvements in the vicinity;
3. That the proposed use will comply with each of theapplicable provisions of this tit1e.
The issue which this section shall investigate is whether
the Planning & Environmental Commission can, consistent with
fts jurisdiction and with due process, arbitrarily deny a condition-
al use pernit, or whether the planning & Environmental Commission
must have a valid reason for such a denial.
The Planning c Environmental Commission is charged with con-
sidering the above 6 criteria, .including "such other factors and
criteria as the commission deems applicable to the proposed use."
This mandatory consideration suggests that there must be some rea-
son for denial. If the denial could be arbitrary, the ordinance
would have made consideration o:E the criteria mandatory prior to
granting the permit (as the next. section concerning required find-
ings did) , rather than making the consideration mandatory prior to
It Eeems that the reason for denial
- 8.-
acting on the application.
must only relate to the particular use, but there must be some
rational reason. . .This position seems sonsistent with due
process.
B. The Relationship of Zoning and Due Process.
Zoning is by nature an imposition by the state upon a land-
owner's right to use his land. It is well established that such
an imposition is justified by the police power of the state to
protect the health, safety and morals of tshe people. However,
zoning restrictions must bear some rational relationship to
these objectives or they are deemed confiscatory. What must be
kept in mind is that the property belongs to the landowner, and
absent justification, the landowner must be allowed to use his
land as he desires.
In its zoning ordinances, which we will assume (for the pre-
sent) are constitutional, the Town of Vail authorized certain uses
and conditional uses for the Commercial Core I district. The uses
whieh are authorized subject to a determination by the Town that
the particular use at the particular location is inappropriate.
Since the Town made the legislative determination that some such
uses can be appropriate in the section, the arbitrary denial of
a conditional use permit is confiscatory and violative of due pro-
cess. It is the restriction on property of a use not condemned by
zoning ordinance. It is an arbitrary use of the state's police
Power. Zoning ordinances must be strictly construed in favor of
the right of a property owner to an unrestricted use of his pro-
Perty. Jones v. Board of Adjustment, 119 Colo. 420, 204 P. 2d 560
(1949).
To comport with due process, the conditional use permit must
be denied based upon a reasonable concern which relates to the
state's power to protect health, safety and morals. (it might be
noted here that preservation of the character of a village might
not qualify as a valid criterion for the use of the police power).
C. What Reasons Will Suffice?
Certainly a
the specificalJ-y
finding, support.ed by
enumerated criteria is
the evidence, that any of
not satisfied, would be
-9-
reason to deny the conditional use permit. However, those criteria
are so general , that the evidence to substantiate it would have to
have its own rationale. The Courts will affirm findings when they
are rational. In Guildner Way, Inc., v. Board of Adjustnent, 35
Colo. App. 70, 529'p. 2d 332 (L974'), the court upheld the denial
of a special use permit because the storage of 900,000 gallons of
fuel oil, the subject of the use, would create a fire hazard,
create traffic congestion, and constitute a danger to school
children.
In Shoptaggh v. Board of County_Commission, 543 P. 2d, 524
(1975), the Court affirmed the rlisapproval of a plat on the basis
that evidence supported the Boa:rd's findings that there was extreme
fire danger.
In lheory, the courts are supposed to be limited to review-
ing the decision of Boards to determine whether the decision is
supported by evidence, However, this entails making at least
some judgments about the evidenr:e itself, and the courts can
consider the evidence itself in making their determination.
The Vail ordinances, due procesn, and the process of review
all seem to make clear that to deny a conditional use permit,
the town of Vail must have some substantial and reasonable ob-
jection to the specific use.
-lL0-
L stout v.
tforgt v.
r@4iPottl -
,2d 739, 1.59
hr eidcncc
wer csiab-
photographs
m that they
ioa of San-
thc time of
*o-,:n thit
the taking
rflicers vio-
n that they
f the crimi-
hen he rvas
d when in
'er pttient.
rmably vio-
nent privi-
end Sixth
snder thc
and corre-
16 and l8
lonstitutiron.
:re is unrc-
.hat Sando-
hts priof to
Horrcver.
ificiency of
in vicrv of
cortention
rf a suspect
elf-incrimi-
erned rvith
opulsion as
r to exhibit
d Stater v.
1926, 18 L
,fornia, 38.1
Ed2d 9fi9t
245,3r S.
rltcr, su7' ro,
hand, I'oth
!ve usuallJ
I tcstimonial arrd rror {orbir.klen l_,y rhc Fif th
| .. Amcndment. The sanre principle specifi_
| ,.i.,1!:1 'celly applies to photographinR a suspect, as
; sratcd in Schucrbr, srr/,ro, rr.hich *.as af-
that 'rt otlcis 'no pioieciioft-agar nst examinaiion oa ih; 6o..(r;cnt's exDerrcompulsion to submit to fingerprinting,I fhologtofh;flg, or measllrcments, to write. or speak lor identification, to appear in
...,. .,-Privilege is a bar against compelling
. r r We think there are differ_' cnces which preclude such stages being' characterized as critical stages at ,r.hicil
{rl, :h:.:*"scd has the right roihe pr"r.r,.l."i+.1.. (Irc.accused has the right to the presence*. :'-lj his counsel. Knorvledge of rechniques
.-;j:;.:* comrulsion which makes a suspect or sc-'?S, -. r cused the sourcc of .real or physical evi_
i.,.t - .. dcnce' does not violate it.', (tmphasis
fffi::, eddea')
, This rule wes follorved in Dc Baca v. peo-
ple, 167 Colo. 3l l, -t{7 p.2d 5.33, whcre the
taking of fingerprints s.as hcld to be non_
f irmed irr I!'ad
"., su 7 ro.
. i ' [6] The firrther contention that the
taking of thc photographs of Sandoval oc-
curred at a critical stage of the proceed-
,- ., jng. in rhc absence of an attorney, or'i..' xaiver of an attorney, and rhercfore de-
prived him of his Si_rth Amendnrent righis. to counsel is likcwise ansryered in De Raca
v. Peoplc, supra, lI'adc, supro, anr.l Gilbert. v. Catifornia, 388 U.S. 263, S7 S.Ct. 1951.18 L.Ed.zd tli8. In ll/otlc, sr(i,.d, rhc
";,_:,. stcps in the gathering of er.idence such as
. "' "systematizcd or scientific analyzing of the
, accused's fingcrprints, blood sampte-., cloth-
rng, hair, and the like" from those stages
described as critical stages, such as a tinc-
: tlp.
witnesses and the prescntation of the
evidencc of his own cxpcrts. The denial
of a right to have his counscl prescnt et
such analyses does not thercfore violate
the Sixth Amendment; they are not crit-
.ical stagcs since thcre is mini:nal risk
that his counsel's absence at such stages
might derogate from his right to a fairtrial." United States v, r{'ade. srprc.
On the basis of the same rationale, rve
hold that the photographing of an rccused
to prcservc visuelly his appcarancc at a
time near that of thc rlleged commission
of the offense is not in a critical stagc of
thc proceeding, entitling the accused to the
assistance of courrscl. See also Rech v.
United Strres, {10 F.2d l 13l t ir\h Cir.).
Wc find no violation of Sandoval's consti-
tutional rights.
The judgment is rf f irmed.
IIcIVILLIAtrIS, C. J., and DAy and
PRI I{GLE, JJ., concurring.
Dana CRAWFORD, Robcrt L. Sl€drnt, Jesnl(. Bain, Wllllam 8. Chcnow€lh rrd Mtt.
drcd Tsylor, phln tfs In Error,
Y.
Ronald C. *lcLAUGHLlN, Aubrcy Brulsfortt.
Paul Cotla, Arthur CowD.rlhwallo and
Marlorla Hotnb.lr, rs lndlyldutls rnd col.l.cllvGly, rs consiltullng thc Bosrd ot Ap-
poals ir rrl|b ih.d by th. B{ttdlng Codoof lio Clly rrd Coully ol D.nvrr, G.rlld
H. Phlpp!, Inc., r Colorrdo corpora on and
B. F. Svan, Octcndinli In Error.
No.24424.
Supreme Court of Colorado,
En Banc.
Aug. 10, l9iQ'
The District Court, City and County
of Denvcr, Clifford H. Darrorv, J., affirm-
ed decision of building codc board of ap-
. -' of science and technologl. is srrfficicntlytr,,:'.' available, and the yariables in techniques
-.. fcw enough, that thc accused has thc op.i . " --:- ponun;ty for a meaningful conf rontatiin
- l of the Governmcnt's cAse at trial
ttl;' - throush the ordinary process of cross-
EF.'r?!'{.e,rt.qn''1tri!',::::.:.:s:l'.],*:.:j.,':",TT:":'Y::'!..::::.T3rTT:l.'*:?".i:'.:TY.1}gM&Fi?..:TY@f4.'
I'
:
tu
CRAWIOED v. trIcLAUO]EIJN Colo. ZZ7lnent on the orher. phi citc ot' colo"t?3 P 2d ?25 --.-'
Swa.n, on ", "u",, i;'"ti; il*i'::'J,,:j , II. rHE INrERvENrroN.
to the Buildirrg o.p"rt-*i ;; ;;; .,.]l ,l:r ar this juncture in the proceedings
:"#iiT: I'
"
i"":ff ;;,'fi i; ff Tj 1;j ;:::',1:,:l l'il'{l :
"
:1. l::: ,."T.l ".ff :
ffii:'Ji; d":::?'-:: :,i::111J :lL:? ril,l.f .ii:"i:,:lill',Tl*:: T' j:
p',m., Friday (that being ttt..utoft i;n.. _:ralt'1o-rd"), ovcr objcction of Swan,..ereror record purposes), the permit u,as rtarecl ,tf llol.: *
-b} the trial court to int€rvenctl,o.no""' July 22, 1968. Swan and phinos [l(.c.P.colo. ZaQ.) (21),will bc rcferred to a3 ,,Swan,,
""f.rr'^ii. The Crawlora group arc residents andcontext irrdicates otherwise. - taxpa).ers of Denr.er, f,"irg in'il-. ,,,","i,,
-on.August 9, t 9ti8, the Director of thc of cheescman Park, and "r. ;"i..r.r,.d in
#l',*l ,Tlil:T:il: :i,,ff;,,::"11'if: ;fiT:":,.'j:.,1.J::".':,,:il.,':."fr.:l:
rcqucst of thc Dircctor of planning, hal orlrenver.
rcnd-crcd an opinion to thc cffcct itrli'"'r.- The ordcr granring thc petition to ,nrcr-ccntly
.passed (August 6, l96s) .i;;-;r;- r'cne gi'cs rirc to thle iir.i irr* p)lr.n,.o
laItcc (No. 2(0, serics of lgosl'timit;ng ti,e for our considera.r jon.
height of structures on ,rr. .u.* ,ia?
-oi
Swan consisrentll., by eppropriatc mo-cheeseman Park, in order 16 o."..rr- ,i" tions, chal.enged the correctness of the trialmountain view from the oark, ".". "ppri"*- court's rurin! "r,i.i-o.r-r,..i"tlll"-*hle to thc S*,r,r nrnu"rtr. Thc Dirtctor to irrtervene. f.rr the sole purposc of ap-advised Phipps rtrat att subseqrrenr permits Scari'E thc triar courr's judgmcnt affirm_requircd {or the consrrucr;on Lr ,n. "p"ri- inglhe Board gr ^on."L.'-ii" "00.", *",ment building wourd be rrru.a rulj."iio pcrfected u'rthrn rhe time rimitation of thethe height limitation "r ,rr" rou"ol'n "l"ri rvrit of error
_
proce.u re thcn in ef fect ;ordinance. The effect of this limitation consequ€ntly, the inten.ention did nor rc-would be to reduce rhc oroposed ;;;;. sult in any delay in the determination off ronr fouri.en ro ,ru.n ,rories. rhose i"ruJs ,;;,;.: ::i:^:.::,:1,r",ro .
Srvan a:rrr nn;p',. app."r"iln" n,,*.,or,. t" "''"""llt'lill'l'r l;::t,; the motions
:tot: t: the Board of AJrpeals of the Rrrit<t. Lr)der
_othcr circumstanccs rve would be
:ng Lode.. The B<,,ard of r\ppcals, after a compettcd_ to rrcet the intcrvention issue
l.1ltng, held that the permit issrred by the tl:.u-on,- but because of the fact thar wcBuilding Departmcnt t" phip;, -;;
i;; affirm the trial court on ,r,. ,n.ri,r'li ,r,.constrtlction of e fourteen a*ry, ,rr"n,r- controrersy r.r'c har.e electcd not to decideeight unit apartmcnt brritdirrg ";i ;;; ;;; the issue in this instance. rif ii.r".r"r.limited ro the construcrion .; .r;; f*n.l;: pr.cced ro considerarion "i ,r,. ,Jrrrr,i".tion only." rssue.
The City and rhe Director, by certiorari III. scopE oF REVIEW.IR,CP.Colo. 106(a) (a).1. otrict Court review of ih. Y:t-d ", D:'- [1] crawford. picked up the chaltcngc
; ::l* *:*: i* JJ T :Ii.i, i ii,:' 1 :, : I..:i'J" 1": i:i. :'; ":i "J,x ;:
?:i'j. rr,.
.
ciir' *u', #'J,..lf . ",1 ;}[ :: ; *-:.1, u.
t":n:. ::r: !;;1ffi ;:""".,:led a ,notion for new t.;."r ",il.i-..r,- j,.,.:: *,,1 oe Just as broad and just as
court
"enied. rhe ci; "ili:lliil iil:;i ::,i:'"1l"l'.::'i,yj il#i*[then tlecttd to abide hy the orde r of thc i'J":r"ru 'u.*
rits or suf icrs jn rhe sameulstrict Court.
marrncr gnd to thc ume dcgrcc er rhe
^ -ti r''i111; ".
726 Colo.473 PAOITIC R,EPOBTER, ,d SEBIES
peals which held that permit issued bybuilding dcpartmcnt was for constructiolof l4-story, Z8-unit apartment building andryas not limitcd to construction of founda-tion onty,
.and_inten ening citizens brought
:.::. Thc Supremc Court, Kellcy, J.,held that ruhere buikling <lepartment di-rector rssued permit for construction of
,tl-rj:rl 28-unit luxury apartment buildingrn conformance rvith practice and ordinances in effcct at time of applicetion, rli-rectoCs letter attemptint to limit heightot contemplated structurc bccause of sib_sequcnt "mountain view" ordirrance wasbased upon strained and unrealistic interpre-
]a,Ti :f nahrrc of permit, and p"rrni,,..
Justrllably changed his position irr reliance
on permrt.to his detriment, ordering director
l -t."ogliro. p.:mit as general buililing per-mrt not limited merely to foun<lation rvas.not_an abuse of discretion by board of ap-geals,
Af firrned.
^-. Pringle and Lee, JJ., did not partici-patc.
l. Parflor e-47
. Citizens vho intervened after cityele-cted to abi<le b.r. order of district courtair'irming <iecision of building co(l(, l,oardof appealt thaf pqlrnil issucd for construc-tion of apartment building rva3 not Iimitedto construction of foun<tation onl;, stood instead of city anrl tl:erefore bencfitrtl or srrf_fered in jamf rnanner and to same degreeas city would have had city carr;ea tiiiga_tion to its ultimate conclusion.
2. Zo0ln9 F,t4 |
. . Building code board of appeals had
l-urisli:tio: .11 p"r, upon whetier permit
rssr:ed. b.r. bui!Ci:g ,j.par:ment rvas for con_structron of complete l4_story, 2g-unitapartment brrildirg and not onc for ,,jcrrn.
dation only." Rules of Civil procedure,
rule 106(a) (4).
A Estopp.t C562(t)
.. poctiine of equitable esroppel is aq_
{:abqrqaiff! -govlrnmcntal agencics ro
PIgYcnt in iustice.
{ Ertopp.l e{e(4) ,.t
Doctrine of equitable cstoppel b"r, ,S
municipal corporation from cnforcing an ....obligation by taking a position contrafy toprevtolls representation relied on by dc_fcndants to their detrimcnt. ,.,
5. Ertorprt q52 ...,
. "Equitable estoppel," o, cstopp.l in l,if;
pais, is an equitablc doctrine invoked to i
ment on
Srvan, on
to the Br
lo consirt
unit lu.,<r
Propen)'.
1968, but
p. m., t'r
for rec'orr
lIonCry,
rsill bc rr
contcxt in
On r\u;
Building
in formed
requcst o
rendered;
ccntly pa:
nance (\r
height of
Cheesema,
mountain
blc to the
edvised P
required f
ment buil,
thc hcight
ordinance.
woukl be
frolr:'r,.1:
Swan ar
order to tl
ing Code.
heering, h
llrri ldirg
constrrrctir
eight lnit
limitcd to
tion only,'
The Cit
IR.C.P.Co
trict Cour
Board of
firmed th.
peals. 'Il
filed a n
court deni
thcn clecl
District C
Prcvent injustice. . .
See publication li.orrls ard phrarcr .-.1
for othor Judlclal eonrtnrctionr rnd i. :.
definitions- 1.,
6. Zorlng €:1445 t '6. Zonl ng €>445
,-- 9gS.O,-:ilding,dalrrrtrqeJt-glE'!9r :'
usrcd pcrmit fqr constrqction ol_EIG,
!8-unit luxu151 apartmen! _ b_uilding in con-
lggta4e q_tdr !h_p4!gt ice and .od!qe!gql!g_cltect at. tune_ of. application,_ jircctor,3
lsltsr attemptlng_fa__limir_Ueieht-jl_roo.,L.
!smp.!ated_ Etrrre tuf! because of "uussqgtli
,ir
"4loq nta i n v ! ervl' ord_inalce r!ja.s__b49ed_!&9n qtraiocd and unrqalistic io_tcre;fatiq4 ,.:.
r*1ouro'. "i ".'^J,,'.",j";#ffi .'
gglt
.gtr3r'ged tis. pSqtio_,Ll!_rcllanggj! -,;{pcmit to ,hir _detriment. orde,rtng director
!a-+scq€::!qm!L_es_8eaernlblilds,ipg$jt- not lilriled msreli to_fs"t,dqtj; .
Vauot an aburc ol discratin'" hu tr..it.t:--
code bolrd of aooeals.
Holme, Roberts and Orven,
Renton, Donaltl K, Bain, Denuer,tiifs iri e r.ror.
_ :,,rt!{h
.i*{aL,.. _,?;r\c'
A. Edgar . '.,"r
for plain-
. Gc,rrgc Louis Crcamer, Anthony F. Zar.
lengo, Howard lI. Kirshbaum, Denver, ior
defendants in error. _ u
KELLEY, Justice.
I, THE CONTROVERSY.
This lawsuit arisrs orrt of a controversy
betrleen defendants irr crror, R. F. Swe:r.owner of real property rvhich abuts Cheese- ....:.,-
rnan Park.on its rvest borrndary, rna Ger-.jlj.Fald IL Phipps, a general contractonnho ' ''j'
was retained by Srvan to build an apart-ment house on thc property, on the onc
hand, and the City and Corrnry of Denvcr
and the f)ircctor of thc Building Deprrt-
728 coto.{73 PACIIIC R,EPOR,TE& 2'I Sf,R,IES
ljl]l l":. had the City carried this titi-
:-,1".: ," its ultimate conclusion. r\s stared
1i.1"1."i.v._Commerciat S..u.;,y n"ni,r.r (-oro. Il, 2J0 p.Zd llS, ,.lt is if,, A,,irl
1"1..::"r,: to .respecr the inregrrty of therssues raised by the pleadings berrveen rhcort$nal. parties
"nd to prauant the injectionol ncw issues by intervention.,,
,^.As,indicated above, thc genesis of thislylll ** rhe Dircctor,s r.tte" ot ,r,,su.ty, 1968, advising phipps rhat,h. p;."i;;;;Es.ucd.permit had tiin interprcted by thec.tty
.Attorney as one to construct ,,the
i:il|_":'"" onln" an<.t that the apartmenr
:u dr.ng contemplated ty ,t u p.rrnit ,r,outJ
.o_._:l_1t.*:,," the heighi ri*,r"Uon, ot-inlsuoseqrrently adopted morrntain vierv ordi-
T".. j,l ef fect, the Dire*or said that be-cause of ahe limited permit issued to Fhippslne.mountain vicrv ordinance rr.otrld norv bc
::l::*,r to alr rupplemenr.rrl. permirs re-yuf , "q uy 5r.an. It rvas the r.i,tur,- ol thejill yn:.h conrroiled th. opinion_;;;
. :.1:ect
of the. mountain vierv 6ydin3nq6 q11rlture..permits wa3 merely an incidcntwhrch flo\ved from the pcrmrt.
^r""n]15
and Srvan invoked the provisions
lj_"::,bn 20l of the Buirding C".t. *f,i.n
l:lrd:t for an appeal to ttre Board of
:_pj-:",, of rhc .Brritd:ng Co,te ty anyorre
lgir,.:g ty a decisioi or tn* 'Dir""torl
,Ls_ec..201(h) (Z)1. The Board ,.".;.;;rne ljirector's determination.
.^Tl. :ltt ...nrl thc I)ircctor ttcn applietlto_rhe. Diitrict Corrrt for a rerrc,r. of thet: oard s r.,ecisron. ( R.C.p.Coio. 106],
... T: *.1p: of judicial review is governedoY Kule 106. I! provides thar,
. 'r("1
,
' | | relief may be obtained
aitt
,.."(,t) Where an l"Ur,* trii,,n"t
:::l:,n:. cr.,urr, boarrt, commrssion or
::j:::']. exercisins .i,iai.^r o. qu^ri.Juorcral functions, has exceeded its ;uris-
Lt.l.n.ol abuscd its discrerion, anrl rhere
.t "l O]"t":.Oi.dy and adequare rcnrcd)..- Kcvrew shall not be cxtendedrurthtr than to determine whether the
l:j..,:':'-"'lr""t_ has exceeded its jurisdtctlon or abused its discretion.,,
In-determining. the scope of review in
, ^ln ,,n.:. "orplaint for revisrv undgl puls
l:6 tre Ciry and the Direcror atteged rhat
:l:.,_BI.d :f Appears exceeded its juris-otctron in that
jl]',.:".,. an anatysis "i,i. irr,,.r'i"il: _.+_
:"r,.^O
Or the. record marle berore the Boanct ijot Appeals is cssential. Jt iso,a .*,ia.,.jlf ilJi ::,:f ."'.'T;';ffi
--Tl. T"{ .r Aoo.";;-;.r:"1''h.".ing,
l:::],lr: Swan and r,hipps appear. fbqp^oa rd ruled that the p.rri, *i, no, io.construction of ..rhe foundati"" onfy,i iit
:^.:::.-r", permit for the construction of e
f:,t* story, trvenry.eight unit aparhcniourtdtng. The Board,r order stated,
_ "That. r_ r r all nccessary buildins
l.*llr b: issued provided ,1,", O,""rlrTspecifications submitted ny th.
"pp.rf"nito-th,e Denver Builrting Department mecttne- requirements of the Building Cole
l^.1 .-t .t it rvas constituted on Juty Zl,r 963."
s
t
I
s
I
Jn(
the
orC
thc
pea
tCr!
lett
I
lh,
hay
-Ln.
th:r
Cor
th:r
lio tt
I
APt
cxc
i,J
it,r
Ft
ss;
F
i,
r
"(a) All mattcrs and things hcreinconcerned arose under
"nd l"aaa gor-
:::.,1.-""9 controilcd sotety by the pro-
:.:l'_.^i. "f Chaprer 6r0. lt,,irains'Re-strrctions To preserve And piotcct.
.T:"*t, .a"|.:r and General Wetfare) of
:::, I:",Td tvrunicipat Co<re of the Cityan(l Lounty of Dcnyer, as amended:
., "O) Pursuant ro sxid Chaptcr 6]0. otthe Revised I\Iunicipal Code, as amendcd,a !r-hole, complete and cxclurive adminis_
:l:,::: l:"*d":e is cstabtishcd includins
:1e 1;aUon and rmpowering of a certainaomtnrstrative board, i. e., Thc Board of -l.lan Enforcement, Review and Vara-tron;
^."(c),
Ttr.e frrnctions, au,;., ""a po*ol,or .tiefendrnt Board of Appeals of theBuilding Code, inclrrding without lirnita-tlon the various individuals collcctivclyconstituting such board, are limitcd torppcals under thc Building Codc of theutty and Corrnty of Denycr and to mattersgoverned by and rvithin thc provirionr of
Bo:
suf
the
the
mel
Sto l
onc
7
and
(8,
tcct
-tlthc
whr
o rd,
tion
inr
.|
its
Bui
rep,
t
ing
.:.: ::,. r:*?::j:':..'!qr''Y:5La..:4-.!s.r,-rqEqg+ * r
erccrded its juris-
liscretion."
sope of review in' thc issuct fotmu-
r bcforc thc Board
It ir thc same rec-
al court.
held i hearing to
tipp,s appeal. The
rrmi! was not for
nd.tion only,', lnrt
constructiofl of a
3ht unit apartment
ordcr stated,
ncccssery building
ded that plans and
I b5' the appellant
Dcpartment mcct
hc Building Codc
titutcd on J'u|y 22,
'ctior undcr Rrr'ie
cclor alleged th3t
xcccded its juris-
td thingr hcrcin
' and wcrc gov-
blcly by the pro-
l. (Building Re-
/e And Protcct
rcral Wclfare) of
Codc of the Ciry
as amended ;
I C-hapter 610. of
!odc, ar amcndcd,
xclusive adminis-
tblishcd including
cring oI a certain
q, Thc Board of
vicw and Varia-
lutics and powers
I Appeels of thc
g without limita-
duals collectively
I, arc limit6d to
ling Codc of thc
rar lnd to matters
the provisions of
CRAWIORD v. tdcLAUGEU
such Buirding code and." ;;:i*j;,:t'.;if:T :.
coro' 72s
or include any functions, duties or pow_ ;;;;,';;ff;.";: ;:::.l.Ii"jlffi"l:crs under Chaprer 6i0. of the Revised if*,J ,i.'
*ll,,r;,f coa",l, ,.."i.0, as herein r,y "n "gg,i.uD.1;:".:rT:1.;:,lr,r"'1..:ll
It was, in brier, the pos.ition or the city iH?i.;:t"'ffitilT:t,,*:li ll.i::
n :r il.' '5"?:H:11':;':r?''*.j"l;,;,,1* I"*0.:',
;.";;;ilil.,":';;. Buitding
:;:':il,:,t,i;.'ff^l:'l:' .r roosy "o, rr thus appears that a possibre connict
pea,s a nd, h; ; ; i.-"k J ;i:#
11,
11, i:: ff ,:;*
;lj: "1r3,,.,:Fj1 *,,.Jnlri!: tcrtain the question rais-ed by the Dir.ao, s Li'ror'. oro." DrJ;; ;;.';ised by rheE].fi', letter of August 9, 196& -
D]'rector,a tetter of August 9, 196g, ariser+:Lrir.: Basically, this raised rhe question as to out of a aa.r,ninJoi_icl'Jting to hisii',,1;' whether the order appealed from should functions in administcring thc Buitding:r--r' heve been revicu'ed by the Board "f F;; codc or the mountain view ordinance?Enforceme:rt, Rer.jerv and \.ariation, rather It is ;rot clear cur. Jl .is intercsting tothan the Board o{ Appeats of rhc Builainf nore, how*'er, ,rr., ,:.,. ci,r'arrorne.y af -Code. This nas just onoln:, yn, of ,oy;n! pearcd anrl participateC beio;e the Boarrl
_.,.:
that thc Board of Appcats r,"a ", irr,#j.l ot. app..t. ii il;;dj*" iod" nithout
. rhe rriar co'rt arrirmerr.the Roard or ;'i;',o"ij;..';:Jffi:,f.'.K"'.ffi:,*;i:
Appeals, h,-,ldi'g that the l.loard f,".r-,r,-r, discr:ssi::g rhc issucs "'...i. ir"r,ii."r,,,*cxceeded s iurisdictiott, nor had it a6r"cj that,
tts d.rscrelion. .. +
o-An
examination of the record bcforc the ,o"ro ,i.,.r,'",t1;,r":,ti.tit":.Tj:#l:511:d. of .{ppeals disctoses that thcre ., rvhether in fact the O.rri, ", ;i,,"i *",tuflicicnt competent cvidence ,o .oooo* a pcrmit ro,,r,. ?uii"r'+rarr"'i"ril,r*,the ruling of the Board of .lppertr' iiai :. rvas it a permit for simptl: a fou,*lo-l: f '.ft. issrred by ti. s"trai"; ;.p;ri- tion. r | . h
n'ent was for trrc c.nstruction ef 3 forrtcen No orrc qucstions the jurisrlictio' oI thcstory, twent)Leight unit structure and not Building Department to issue building per-one for "the foundation o,ly.,, .iir. it. passage of the amen.nrent to thcThc Board of plan Enforccme't Rcvicrv mountain vierv ortlinance extenrling itsand..Variation, creare4 by Ch;;,;;- d. coveragc to Cheescman park was noi the
llullding Restrictions to preserve'an1 pro- lrastc- premise on u.hich the City Attorrreytcct Health, safety arrd c.n.r"r tv.li"i. based
_
his opiniort that rhc pernrir *'as
-the mounrain vierv orr1inance) i, ;;;;; Iimited to "foundation only" and, thercforc,lm Po\rer "to hcar *,r,t aaaiia ur,'o"^]. the mountain vierv urtlinance was applicablewhtre it is allege<J rt.t" ;, .rro. ;n'^n* to thc. Swan propcrty. Some exccrptsorder, r€quirenrent, dccision or determina'- lrom the Director's letter to phipps are
l'on. madc Ly an administratir.e official pertlnent arrtl will d€nronstratc the point:urfhe enforcement of Chapter 6{0.,, ,,On July 22, 1963 Construction lermit
..-The -mountain view ordinancc delegate<.I No, 31g6,6 was issued to your f irm fortts.cnforcement to ..the Director of" tne the construction of an apartment on Lotsduifding Dcpartnrcrt or his authrrirci I to 7, irrclusivc, nf""l- ii,' i,rri.,,representatir.e.,, r\dditiorr, City antl C.,,.iy ;; ;:;;."..
,_irl .rn. Boarrr or Arrpcars,o{ thc rruirtr- ,i?ll;ril",it;'i:il:l.ffi*,l"Hl;tt
T:.rrl:,;n ZOt(h) (2)l is siuent'}re ii. *.,.r", contractor assumcs frril rc-
730 Coto.
sponsibility for any
tron required due to
sup€r structurc.'
{?3 PACITIC R,EPORTE& 2d SER,IES
ctranges in founda- The Director rathe approval of the hiq a,,;,';.. .- ,^
"Subsequent to the issuance o, rhispermit and passage by Cit1, Council ofthe Ordinancc preserving Vierv of theAlountain5, thc Director of planning,
Ja1nls D. -Br1-"1, J r. requested a legaloprnion of the City Attorne;. relatir.eto the issuance of further permits bythis office for this particular strucrure.
"This opinion in part states: .It ao_pears to us that the permit issued couldlawfully be issucd after the enactment ofthe ordinance to preserye mountainvrervs. A-permit is to be construed from
::t ottn. language. By its orvn termstoundatron permit only,, the permit seernsrvnolly lawlul at th;s time but is restrict.
:d,1 1n authoriraiion to consrrucr aloundatlon and nO more. r r i,.
. The t.jtimony before the Board disclos.,lthat it rvas the practicc to is3ue a general
li-l.il ,p"" application, supported by suf_trctent data as to details to cnabte theBuilding Departmcnt to determinc whetherthe proposed foundation complied with the
::d. Subsequent permits are issued as:., conjtruct;.Jn progr(sser upon the irrr_nishing o f supplemental planr and specifica-r!ons.
,, -1,:, .TrTll, rlesig:rate<.t,.Construcri,.,n
..",,,,,: .t". r, amor,g uthcr thrngs, shorredt:r3t thc first floor srri irJr i.; Le .{iSl
square fcct;
-the hcighr of rhe builciing rr.asto be I68 feet; number of storiel ll;total units 28; that it had been approvcdby the Zoning Adminisrator, the CiryEngineer and the Traffic Engineer.
.1ll : O...li, iu rther disclosett, .. Valuationof \\tork 51,300,000,,, and the pa).ment of
:h:. l:,"1 fee (g3t50.r]0) ior rhe propose<lbrrilding. The permittee,s attention lr.asdirected tiy ,,)iOTE _>,,ro rhe follorv-lng :
, "Separatc permits mrrst be oLrrinctlror srvrmming pools, signs, fences, retain_rng rvalls, demolition, incinerators, e)ec_trtcat, plumbing and hearing.,,
The trial court, aftcr reviewing the fore-going evidence, in dictating it, fina;ng!of fact and conclusions of law, statcd:
. "It is the opinion of this Court theissuance of such a permit rvith the mat-t€rs written upon the face of it wcrethe excavation permit and the notice ofp.r.mi.,..,9 be posted upon the propcrry
and allied documents were sufficient forthe property owner as rvell as the con-rractor to rely upon the same.
"I f that was not thc case, r,vhy wasit.issued? It rr.ould hare bee., .+.hottyidiotic to issue such a tlocument througf,the customary antl regular rvay if itrvasn t rntendcd to be an authority by
the_ municipality for the property ownerto build the conremplaterl improvcments
upon thc property owned by him.',upon thc property owned by him.,, 'L$
.\\'e therefore concludc that rhc Board Ir"
of .\ppcals of thc Duiirling Co<le h;rd be.to.. 'it,
"nJ-rifii,r
".",""" \-u(rc'... oc' I
aro.se out of the propcr
"no,,T"",ti:; .lt;l . ffi |Building Co<le and not otri of ,n. .oun- ;f.* |tain tierr' orrlin:rrice. ' i(arn l'teti' or(llntlicc- l
Tl:us h"l.ling, it lollorvs th:(t the tsoard of :
r\ppeals did not exceed its juristliction. :.:r
Thc trial court, applying the rloctrine oi .
equitable estoppel, found that the Boardof Appeals had not abused its discretion:
Prcvent inju3t
tt. t ra.
t4l The d,
lr.rrs a municil
ing en obligati
tr;lry to r prc\
l,.l' (lcfcndantg
v..{urora, l{i
We recognir
Cline v. City
.iJ5. tn Cline,
"The basi,
simply, does
vest such a
that subsequ
rs to the pr
in the Unitr
must take
the permit t
undgl. I '
"Although
Pears that rhi
thc rationalr
Denver v. St
P.?d b6. I
stantial relia
t'hich had b
the construct
prohibited b1
nrnce. Thc
orvner had c
in the amolln
Denver rva s t
ity of the per
necessafy to
toppcl, so rvr
court did not
thc landorvne
the decision."
"\\'e inicr
Clines oltain
t;tctic. t .
[5,6] As nr
cstoppcl in poi
which is ilvo
Some of Srvan
rignif icant natu
the issuance of
t3] This court has recognized and ap.plied the doctrine of equitable cstopp;llor m:iny yrars. f)enver v. Staclihousc,
135 Coto. 289, 310 p.Zd, ?96 t piz v. FiousingAurhority, 132 coto. 157, ?s9 P.?d 905.This doctrine is founded upon principlesof fair dealing tnd is designed to aid the
larv in thc adnrinistration of justice whcre,
rr ithout its aid, injustice might result. piz
v..llousinF Authority, rrry'rrr. It ir eppli.cable against governmental agencics to
wryW€ii:::''."'.:1::*T.Y*.,.lj..]|.]$fi.is,]1ffi1i'.Ew':'g::a:]ik5]ss:'i1-i],:,."]].:,.t3sqm:1'-,:.:.@*.
rtly disclosed
pcrmit repre-
tcncc of hir
Construction
to your firm
"o lpertmcnt
ving the fore-
its findings
rr, statcd:
rir Court the
with the mat-
e of it were
thc notice of
the piopcrty
rufficient for
I ts tlre con-
in!.
rtc, why war
been wholly
mert through
rr rvay il it
authority by
'oPeny owner
improvcmcnts
ry him."
rt thc Board
Code had bc-
matter which
ication of the
of thc moun-
the Board of
rrisdiction.
rc doctrinc of
rt thc Board
it3 discretion.
rired and ap
ablc estoppcl
. -stackhouse,
'iz t. Housing
89 P.zd 905.
lon principl*
red to aid the
furticc where,
rt resulL Pi:
, It ir eppli.
agcnricr to
C&AWTORD n McLAUGELIIf
crto rr, coro., {:r p.!d i2, Colo. ?gl
Dcnvcr v. Stackhouse, !:,lu*n".r. of the lots for g220,0@.
Evidence of an cxpcrt showed them to be, [4J The doctrine of cquitabte estoppet *:i:L,j"., r"f ;#;#;,Tr1'lr::ri:' bars a municipar co.porrrion f;,n .;;;; timitations of th. ,nount"in-.ricru ordin"uc.ing an obligation by taking " po.ition *n- were. invoked. s*"n rr"J'prorided in thetrary to a previotrs representation relied on purchasq contract that the contract would.:..:+ti; by dcfcndanrs to their detrimerrt. pr*r.l not be binding ;*" ,r,.]i". zoning were1r':!; v' Aurora, tJ7 coio. zs,362 p.zd sir.-""' changed. Also, he cmpro-vcd an architec-
. .-rY-t .:..:qntr"d the principle rccently in tural firm aud had ooii5"*i himself for| " ' 9'-n" _* city of Boutder, i;i".,';il';; fces to. the .*,.r,, or';id"';;.' ;":
| ,.-,,,c,. *t'. j:t cline, tr{r- l"rti". o"y'our.r".ll f_"11s', ii._t'our,.",r r.l.-r*ii"u,r,iing. Ttcsc
l'fl; -,_ Tn. basic legal quesrion in"otn.a i, f"tt1 _
rlouto not be totalty ignored inI ti,f ' simplv, does e builjing ;,;:;-;J; lgnsidcrine thc ects *hich accompanied
I d.i: vcst such a propcrty tiir,i i" ii.'"*".. ard follon'cd in rcljancc on the issuancc of
I ttr' ' that sub63qu6n1 rezoning i. ;n.ir..t'iu. :hc frmit rhe cxisting srructure weri :t ro the prolerry? rh; ;"j;rt,y;;;; 1,."*, ,h: foundatio:i \ras co::sr:ucted ror
I l" t}e United Slatcs is that thc ou,ner '.re s;eci:'rc bu:l.l:::g ici ii} ich il* -;;,
i Tutt take somc steps in ,..u*,;";; r'as issucd, further finarcial cc=:::rments- lhe gcnnit h.fn'. hi. -:-L.- rtcre made lo rh. .r.hi,-^,the. pcrrnit bcfore his riglr,, n;ri'ih.;- \cre made ro rhe archirccr, "rJ ,n.'.""-under. . 4 r tra€tor after the pcrmit *a, ir.uad.- Tt.
. 1 ; . totality of the. situation should be weighed
^--1\rrhouch.rrot
squarery ,,,o:,r1..* "0,
'^j:'":::;t"tJ',i:'",1;; j**, -,, ;"*pears that this court has at reast follo.uid be an odd course of conduct which wasthe rationale of thc majority
-rlte in .aopt.a i1. iir. S*,rn if hc didn,t rely on::.".-t- I Stackhouse, t35 Coto. 2g9, Jl0 the perm;i.,;-,:rO .?U. In rhat case therc was sub_ The trial ctrtantial rcliancc on
"_
fr"lii,.- --._,. - )urt funhcr obscrved that,
t ''1u 'vo' ln that cirse therc was sub- The trial court funhcr obscrved that,
l'
' ;Tll"'#";fi.?",LJ,':i.f'H,*;[T ".a. . ] tr,.v oui"i,rca the permit
I thc.construction ofa building which u.as and it nas not a tactic. Ttre tt,;taing
i ::::::',*:{.::..-;;; ;"";;;;':;:t ;i,'i. ::ilT,.",.no:'._::. no, a dream
nancc. The cr.rrrrt noted that *r,I r,"l_ v"( d Ic.rrrr)'' r."
owrrer had expenrled .,,u.,:1t,,:lt .].111- l! appcars that rhe Direcror larvfulryin the amorrnt ol ii-,,,iil;;;,;"tt"'t :'_'-"_:1
in" pcrmit in "onro'."n.. ;;;;;"rltnver lras cstopped to cont ., -: .- practlce and ordinances in effecr at theiry or thc,;;.'-;;;;:'ijl"::jil; :-." :l the apprication; rhal tr,i' ni-nccessar_v to invoke the aoctr;rio .,1 ".'_
r(c[or's letter attempting to limit the heishtloppel, so \tc assrmc tt,", "t,touJ,i
ol the cont€nlplaled structure was baled
,TJ t
"o;:,,r"":,
:J,;.;il :", : :":1, ;:* ;il" "i il'ffiil":,',il'il',}",, 1",, #",T;the decision.,, " -"-- "o5 crrttcal to permittee jusrifiabry .h",,;";'li. ;;;,;;"
.,,^y_. ilul rrom rhc eviriencc rhar rhe ::.l:HI;:1.:T"r_.1il!:l*j::*:i:
;:;:t
ti*:tt:
,a Permit merety as " nize Construction permit No. I as a general
,. -,. lllJdinS ermit the Borrd of epp."fr-w***t
:.:'#:., ,f";,1.1, jl,li.,oli.;:,",,#':: #tJlfi;'f'ii'.'#:l,i.:,:'1,fr{Ht*r,i.i ;,
-i,i*iJ .' il."1,J1.,:,.Tj:::: ,,"j:
.T-T. "f Swan's acrs,
" t i.f, ,..r. oi ^
Thc judgment is af firmed.-'5rttrtcaDt nrt re, r)ccurrc{l prclinrinarily to pRli\iGLE and LEE, JJ,, not partici-lhe issuance of thc pernrit. n", "*"rpf", *,,r*.
386 Colo.553 PACIFIC REPORTER, 2d SERIES NORIVTAN
t. MuIlclpll Cor
Where, in;
rcmains in exist
rvhich can bc r,
of such properl.
othcr property
furnished to m
contract, which
Porfer to contra
cedurc has not l
plier may, on
spccic; overrul
Florue, 150 Col
other prior inco
2. Municlprl Co'
\Vhere pr.
faith, sold rer:r
politan recreati
tract \vhich wil
tairr approval o
corporation wa
uitable terms;
to enter judgn
purchase pricc,
option to pay i
return propert]
CorPoralion orl
paid on prrrcha
Pcrm.Supp., (
'73, 32-2-t23(l
Calkins, Kra
Richard L. H;
er.
Haskell & (
Denvei; for rc
LEE, Justic,
We granted
cision of the r
dy Esr. ltet. I
Colo..A,pp., 531
sct forth in tl
modilicd.
The facts,.
dispute, arc se
ion of the co
shorvs that in
It is not the uncertainty of
cnjoyment in futurc, but thc unccrtaintyof thc right to that enjoymcnt, which
marks the diffcrcnce bctrvccn a vestcd
and contingcnt intcrest."
Finally, in Jonq v. Ptteblo Co., 103 Colo.
455, V P2d ? (1939), this court tooked to
the intcnt ol the testator and also cited the
legal maxim that the law favors the early
Yesting of cstates, cspccially when given to
children or thosc standing in likc relation
to th€ tcstator. Linder such circumstances.
this court said, thc lau-will impose such a
consrrucrion of the tcrms of a will as will
creatc a lcsred €state if possible. euoting
an Illinois case, it hcld thar .,,[a]n Gstatc
will vest at rhe death of thc testator unless
a latcr tice for I'esting is clearly expressed
by the words of thc nill or by necessary
implication thercfrom. Carter a. Carler,
231 Il!. _:07, 85 N.E. 292.'"
In tlc prescnt case, from testator,s lan-
guage it is rcasonable to conclude that he
wished to nakc a brquest to taxpayer that
rvould not interfere uith his making pro-
vision ior the needs of his rvi{e. The tax-
peycrJs cnjoymcnt of his lcgacy has been
postponed. But, according to a proper con-
struction oI this bcquest and following the
controlling prccedent in Colorado. the tax_
paycr's interest vestcd in him immediately
upon tcstator's r-leath.
Therefore, we answcr the question cer-tificd to us by the Court of Appeals for
the Tenth Circuit, taz., as follows: under
Colorado law, the interest of William Ar-
thur }fartinson (taxpayer) in the tnrst
creatcd in his namc under his father's
rvill is lol a future intercst subject to a
condition prec€dent. The conclition of sur-
vival is a condition subsequent. Taxpayer
has a vdgted right to the moncys <tesignatc<l
for him, but that right is subject to conr_
plcte defeasance in the cvent he does not
survivc the lifc tenant, testator's rvidow.
LEE, J., does not participate.
NOFMANOY ESTATES TI,IETFOPOLITAN
BECAEATlON DlSTRtCT, r q ui3l-M u ntct-p8l Corportllor ot th. Sl.ta of ColorEdo.
Pelltlor.r,
Y.
NORMANDY ESTATES LtMtTED, r Coto.
rrdo Corporatlor|, FlG3!ondcrl.
No. C.6gt,
Suprerne Court of Colorado,
En Bone.
July 10, l9?8.
Reheul.lng Denled Sept. ?, l07ti.
Metropolitan recreational district,'
which had bought recreational facilities
from corporation, brought action againit
corporation to cnjoin foreclosure preceed.
ings, to obtain detcrmination that note!
and deed of trust were void and to recover
amount paid to satisfy note, Corporation
counterclaimed for balance of purchase
price, plus intcrcst. 'fhe District Court,
Jefferson County, Winston W. \Volving.
ton, J., found note and deed of trust void,
entered jrrdgment for corporation on coun.
terclaim and set aside foreclosure, and dis-
trict appealed. Thc Court of Appeals, Ru.
land, J., 534 P.zd 805, affirnred. Aftcr
granting certiorari to rcvicw, the Supreme
Court, Lee, J., held that whcrc corporation
had sold facilities in good faith pursuant to
contract rvhich was invalid for failure to
obtain apirroval of eligible electors of dis-
trict, corporation tvas entitled to recover
on cquitable terms; but that proper rcm€-
1dy rvas not to cnter judgment for unpaid
jbalance of purchase price, but, rathcr, to
igrant district option to pay balance, with
interest, or to return property and {acilities
,in question to corporation on its return of
imoncys paid and purchasc pricc plus inter'
est.
Judgment motlified nnd cruse rctltrned
to Court of Appeals with.dircctions to re-
mand to f)istrict Court for further pro.
ceed ings.
NonM AND Y ESl'. r{ ErRo.,l"T.?;311I;,1. NoR MA NDy ESr.Colo.387
IOPO L ITAN
luarl-M u nlcl.
ot Cotorado,
'ED, a Colo-
dG nl.
'6dq
, r9?0.
al district,
ral facilities
:tion against
ure ptececd-
r that notes
:d to recover
Corporation
of purchase
,strict Court,
M, Wolving-
rl trust void,
:ion on coun-
;urc, and dis-
Appeats, Ru-
:med. After
thc Suprcmc
e corporation
h pursuant to
br failurc to
:ctors of dis-
d to recovcr
proper renre-
rt for unpaid
ut, rathar, to
brlance, rvi"h
and {acilities
its rcturn oI
ice plus intcr'
ausc rcturned
'ections to rc-
furthcr pro'
t. Mu n lclprl CorporatlonJ C-25t1
UlhCfC-f!,-C9Sd .{aith. prqpertv, rvhich
remains in cxistence and is identifiablc and
which can bc restored to seller or supplier
of such property s'ithout serious damage to
orhcr propctty of municipality, las be.e4
Ilraqh sd- !q m-q11;_qi1-a ! r.o,rpcrqli o n mdcr
con$rcLJhigb-js-j!-\Slid due to u'ent of
go,u rI to gontract or because tte!.qlo_tJ. Dr_A:
"cdurc has not been follor,r'ed, selhr or sup-
nlicr-.s'-ay,. .s| gqtt i!-abls- !gg;r1 g- rccove r irl
snecie; ovtrruling Erglezrood v. Ripple &
Hozue, 150 Colo. 434, 371 P.?d 360, and
othcr prior inconsistent decisions.
2. Munlclprl Corgorallonr @254
Whcre private corporation, in good
faith, sold recreational facilities to mctro-
politan recreation district pursuant to con-
tract rvhicfi was invalid for failure to ob-
tain approval of cligib!.c clcctors of district,
corJoration was entitled to lecovcr on eq-
uitable terms; but gtqget tgmedl'-uas not
to errter judgment for unpaid-,balancc. of
plrgglri le- all qe-,b!,! t,,ralhg fi _!q g! ant d i st rict
q!_tion .to paJ.talSrllS,.-l-{!l-jnlgg:L itlg
rql unt lt'epglty and facilitles it q!ss!!ss-to
6orperation on its return of itr molgyl
laid on, purchase lrice- plus. inlc&rl 1960
Pcrnr.Supp., C.R.S., 89-12-25(l) tC.R.S.
'i3, 32-Lt2s(r)1.
---_-
Calkins, Kramer, Grimshaw & Harring,
Richard L. Harring, Denver, for pctition-
Haskell & Crandell, Ralph E. Crandell,
Dtnver, for rcspondent,
t , -- ' .,LE l', J USttCe.
Wc granted certiorari to revicw the de-
cision of the court of appeals in Nonnor-
dy Est, Met. Dist. zt, Normand! Est., Lrd.,
Glo.App., 534 p.zd 805. For ihe reasonstt forth in this opinion, thc judgmcnt is
nodif ied.
Thc facts, which arc not in substantial
dirputc, arc sct forth in detail in thc opin-
ion of the court of appeais, The record
t|lows that in August 1959 thc clcctors of
thc Nornrandy Estates Iuetropolitan Recrc-
ation District (the district) approvcd a
bond issue in the emount of 9120,000 (or
the purposc of purchasing or constructifg
rccreational facilities. No other clection to
crcatc an indebtedncss or to ratify the sub-
sequent action of the district's board was
held. In trtay of 1960, thc district entered
into a writtcn agrccment rvith Normandy
Estates, Ltd. (Normandy), whereby thc
district agrecd to purchasc a swimming
pool and other improvemcnts previously in-
stallcd by Normandy on four acres of land
owncd by an o{ficcr o{ Normandy. In
conjunction rvith this agrcement, the dis-
trict entered into a lcasc with the of{icer-
landowncr, Some timc theicafter, title to
the tract was convcyed to Normandy.
By Novembcr 1961, the district had paid
$36,400 tou'ard the acquisition of the recre-
ational facilities, In February' 1qi2, the
directors of tire Cistrict decided to pur-
chase the {acilitics. A r,r'ritten agreement
was executed b1'the parties (rcsonding the
prior purchase and lease agreem€nr) with
Normandy non- agreeing to conyry the
tract to thc district in consideratioo for the
district's agrecrncnt to acquire t}tc rccrea-
tional facilitics for a total purchasc price
of $88,009.60.
Thc ncw agrccmcnt rccited prior pay-
m€nts by thc district (S36,401), lcaving a
balance duc of 951,609.60 on the purchase
pricc. The balance was represented by
trvo promissory notes sccurcd by a dced of
trust. Thc first note was for glJ&'92,
with intcrcst at sevcn percent p€r annum;
thc second, for @,826.68, was not inter-
cst-bearing unlcss it remained unpaid on
its due datc. The directors authorized
payment of the intercst-bearing notc, hav-
ing reccivcd approximately $30,000 from
the sale of additional bonds.
Whcn, howevcr, thc.non-intcrest-bcaring
notc camc duc in 1972, the district refuscd
paymcnt on the basis that the indebtedness
wis void because of the district's own fail-
ure to comply with t960 Pernr.Supp., C'R.S.
rygsK:tri?*,rT*n:{:*::l'1s1ry:,.wif:} " "
!d'*]!-1is]Ji1*q!iarjelsa..*"|:!!!Exq#
388 Colo.553 PACIFIC REPORTER,2d SERIES
'53, 8Ll2-25( I ),r in cffect st thc time thcrcvisd agrcemcat war &ccuted. This
strtutq in alsencc prohibitr e district from
incrrrring indebtcdnesc to acquire rccrcl-
tionaf fecilitier in cxcess of. l\71/s ol thc
valuation for e!3essment of thc district,
and in no casc in exccss of g15,000, with_
out first submitting thc issuc to the etigibtc
clcctors of thc district for their approval.
Ugon the district's rclusat to make pay-
mtnt, .\-ornandy initiated, in August of
1973, foreclosurc proceedings on the deed
of trust. Thc district thcn f iled this actionto enjoin foreclosure, to havc the notes
and deed of trust declaled void, and to re-
covcr thc amount paid in satisfaction ofthc first Eote. Normandy answered, con-
tcnding that thc indebtedness was valid.
and that even if not vali{ judgment should
be cntercd in its favor for tJre balance due,
on thc theory of equitablc cstoppel or un_just enrichmcnt.
trIcan',r'hile, the courr refused to issue a
temporarJ. rcstraining order against the
forectosure action. The public trustee helda public auction on Octobcr 16, 1973, atwhich Normandy purchased the property,
The trial court. on April ll, 1974, en_tercd an ordcr finding the note and deedof trust void because of thc district,s fail_urc to comply with section g9_l2_25(l).
Thc correctncgs of this ruling was notqucstiond on appeal. The court further
found that all the partics werc acting in
good faith at the time of the transaction.
The court nevcrthelcsr cntered judgment inthe amount of $33,204.14 on the counter-
claim (the balance of the purchase price,
plus interest), and set aside the foreclosure,
on the theory that it would be grossly un_just to do otherwise. The district appealed
this judgment to the court of appeals, and
that court af f irmcd.
Thc court of appeals agreed that the
contract with thc district was void for the
rcason that the district failcd to comolvwith statutory requi:emcnts. Tl,e co,,rt
hcld, however, that rvhere, as here, the mu-
nicipality had rcccivcd spccilic propeny
under the invalid contract, the contract
will not bc enforccd but thet therc may bca rcmcdy in thc nature ol rescission, dc-
pcnding upon the situetion of the parties,
relying upon thc rationalc of Chalmat a,
ConnQ of Douglas, 107 U.S. 34e, 2 S.Cr. ,
62, 27 L.Ed. 378. The courr of appeals
held that undcr the facts herc, where im- :.provemcnts had been addcd by the district 'I.
and the property had substantially in- t'1.'
creased in value, it would be inequitable to
penalize the district by permitting. rcscis-
sion. The court then required the district
to pay to Normandy the balance due on the ..
purchase contract, with statutory interest.
I.
NORIIA
covcry, includi
nicd. Dcntcr
3J P.2d r-{9.
Dbt, t. Carrc
J25; .Sai'edlrrn,
{n, lt8 P.zd -'
poni, 79 Colo.
Qity of Leodt
Tow of Dur.
257,7 P. t1.
'sions is simply
municipal corJ
that lrll mand.
arc complied r
prccaution he
and must su f f e
These cases
restr'lts, in the
good faith per
posed to be ol
tract rvere den
ters beyond th'
ual inequities r
rvere deemed
protection of
cxpenditures o
cials. As state
ns, 29 Colo.r\p
pose
..a a t
egainst imprt.rta
proposed sp
prudence an,
direct expe
As set forth above, the facts of this case
involve a private corporation rvhich in
good faith entered into a contract rvith a
metropolitan district for the purchase and
sale of land and recreational facilities-a
contract which the district had authority to
enter but rvhich rvas invalid for failure to
obtain the approval of the eligible electors
of the district. The question rve must de-
cide is rvhethcr one who under thc forego-
ing circumstanccs contracts rvith a munici-
pal entity may successfully invoke equita-
ble relief rvhen the municipality refuses ci-
ther to perform the contract or to rcturn
to the plaintiff the consideration it has rc-
ceived,
This court has long adhered to thc rule
of larv u,hich has prohibited recovery un-
der strch circumstances. ln Englezuood r:.
RiPple & Houe, 150 Coto. i3{, 374 p2d,
360, for examplc, the court, quoting.tllritt!
Canal Co. u. Denuer,20 Colo. g+, 36 P.
8-11, stated:
"Persons dcaling rvith a muncipal cor.
Poratlon mus! at their peril take notice,
not only of the powers vested in the cor-
porition, but of the nlode by rvhich itg
Powers are to be exercised. + i * "
Sirnil;rrly, rvhcrc ;r nlrncil];llity hxd
failed to follorv proper procedrrres, all re-
[] We hr
cation of the r.
es is unduly I
thc facts of tl
what eppears
thnt rvhcre pro
nicipal corpora
contract, and tl
for thc propr r I
supplying thc p
terns, rccovc rl. ^'frrw rcctfon 32-2-121' (l), C,lt.lj.lU?J.
it,:l:l)
FFdi*@r9it@...tli.r€r'l@n?i*-----!r.!!tF'--rFrtt1!Fe,a*rtffi
spccific propcrtY
act, the contract
rhat there may bc
o{ rescission, de-
cn of the parties,
le ol ClwPna* v.
U.S. 348, 2 S.Ct.
court o{ aPPeals
s herc, where im-
led by the district
substantiallY in-
d be incquitable to
permitting. rcscis-
:quired the district
balance due on the
statutory hlterest.
e facts oI this case
)oration which in
a contract 'with a
r the purchase and
rtional lacilitics-a
ict had authority to
valid for failure to
thc eligible electors
iestion we must d€-
o under the forego-
acts with a munici-
fully invoke cquita-
ricipality refuscs ei-
)dtract ot to rcturn
sideration it has re'
adhercd to the rule
ribited recoverY un-
t ln Englewood tt.
Co!o. 434, 374 PZd
:ourt, quoting .Strirh
20 Coto. 84, 36 P,
rvith a muncipal cor'
cir pcril takc notice,
lrs vestcd in thc cor-
: modc by which its
,fciscd. I r r"
'a muncipality had
:r procedures, all re'
r\,^
\':ct$ \
nv rtrc\ \r,u'''{'u"
^'J0' L{0''v .C\'
NOIIII.ANDY EST. MBTrrO. REC. DIST. v. ITiORMANDY EST. Colo. Bgg
Clte re, Colo..553 l'.2d 3$0
covery, inclrrding qnanlun lrcrrri!, rvas dc- lrfcQuillin, It(uxicipat Corporotroar $$ 29.-
nied. Denuer a. ltloorman, 95 Colo. tll, 11l",29.127 and 29.131 ; 56 Am.Jur.Z,J, trtu-
33 P '?tl 749. sce also Big sandy Sclr. nieipul corpororio,s $ 513; Atttot.,93 A.
Disl' a. carroll, 161 colo. 173, 133 P.2d L.R,.+41, and cases thcrein collatcd. wei2s; Suetllnrd u. I)cnacr Bcat, 108 colo. corcur with the view stated in Marsh v:
1U0, ll8 P.?d 1601 School District a. Pottt- Fulton County, TZ U.S. (10 Wall.) 676, 19
foni,79 Colo.658,217 P. 1056; S liaan a. L.Ed. 1040, and approved in Chal,matt v.
City of Lcadt:illc, I I Colo. 483, l8 P. 736 ; Couxty of Douglos, 107 U.S. 34S, 2 S.Ct.
Totttt of Durongo v. Pctnington, B Colo. 62, 27 L.Ed. 37B
,257,7 P. 14. Thc ratiqr_qls_cjl_.lh€sqjqq!-
isions is simply that a party dcalins wigl a
irnurlS;n4 corporation is hound to see to it
jthe!-all mandq,tory p19_vj_sip4_s- _o_! the larv
Iare-co_urnlied with, ald rlhc lsslqs!!-ccgb
Jllec.aul.iqq !e becomeq a , rlsle vqlunlcq,
I eld utt! suffer the consequcnces.
These cases admittedly produced ,,harsh"
results, in the sense that parties who in
good laith performed what they had sup-
posed to bc obligations under a valid con-
tract were denied recovery because of mat-
ters beyond their knorvledge. yct, individ-
ual inequitics notrlithstanding, these results
were deemerl justified on thc basis of the
protection of taxpayers against improper
cxpcnditures of tax moneys by public offi-
cials. As stated in Shonnon Waler u. Nor-
ris, 29 Colo.App. 48, 477 p.Zd 426, the pur-
POSe
'r t| t . is to protect the taxpayer
against improvident use of tax revenue,I i I to insure public disclosure of
proposed spending, and to encourage
prudence and thrift by those elected to
direct expenditure of public funds.
II.
[] lVe have concluded that the appli-
cation of the rule enuniciated in these cas-
es is unduly harsh and incquitablc under
thc facts of this case. We hcreby adopt
what appears to be the prcvailing rutc:
that whcrc propcrty is furnishrd to a mu.
nicipal corporation under an uncnforceable
contract, and the municipality has not paid
tor the property, then thc seller or person
supplying the property may, upon cquitable
terms, rccovcr it irt sjccie. .!ce l0 E,
n | :r t Thc obligation to do justice
rcsts upon all persons, natural a d artifi-
cial, and if a county obtains the nroney
or property of othcrs without authority,
the larv, independcnt of any statute, will
:oT,.,,rcstitution or compensation.
Apt applications of t}e rule may be
fotrnd in BaUo,rd's Esl.ate L Cl,ay County,
355 S.\l'.2d 89-1 (\Io.l9'62) ; Lltichita Fi-
nance & Thrift Comf en '- :.,. City of Lotu-
tor, l3l F.Supp. 78S ( \1'.D.Okl .1935), af f'd
f er crriant, ?$ F2d,60tl (10th Cir. 1957);
Halu'ard. u. City of Corytrrs Cirrrifi 195 S.
W.zd 995 (Tc-x.Ci';.-{pp.i916); Busch-
Sul:cr Bros.-Dicsct Enoine Co. v, City of
Wo.ltcrs, 133 F.2d 65 (10th Cir. 19.13);
Fnirlrcrl^r, trl orse & Co, t'. City of ll/ogott-
et $ F2d 2SS (10rh Cir. 1936); Shaza a.
Boarcl ol ECucatiot, SS N.\I. 298, 31 P.2d
993, 93 A.L.R. 432; Floyd County a. Allen,
137 Ky. 525, 126 S.W. 12+.
ln Foirbaahs, trlortc E Co. v. City of
Wagorer, supra, lot exampie, the city en-
tered into r.hat turned out to be an ultra
vires contract with thc plaintill for mate-
riels to construct a powcr plant. The city
refuscd to make paymcnts and raised the
ultra vircs naturc of thc contract as a de-
fense when sucd thcrcon. The court, rely-
ing in part on thc Chapmatt casc, .t#prd,
hcld that undcr thcsc conditions the city
should not be pcrmitted to ictain the prop-
crty and yct deny its liability on the con-
tract; if it insists thet thc contract is ultra
vircs, it must makc rcstitution or rendcr an
cquivalcnt therc{or.
Under thc circumstances here, it would
be grossly inequitablc to permit the district
to continue to cnjoy the bcncfits of thc
390 Colo-553 PACIFIC REPORTER, 2d SERIES
contract wittrout fully compensating Nor-mandy.@
eglprqviou! decirionr,.inroler ar thcy are
inconsirtcot with the cguitrblc +rincioles
w.beliavrrhpuld orcvail in ruch carcr.
CAPITOL LIFE INSURANCE COMPANY.
v.
Lolr ROTH, Rr.pond.rl.
No, C-7{1.
Euprcrne Court ol Colorado.
En Btrne.
Jult 19, l0m.
A8 Modllled on Denlel ol Rehearlns
Sept. 7, 1076.
Beneficiary of life. policics brought
action to recover double indemnity bene-
fits under policics. The District Court,
€ity and County of Denvcr, Clifton A.
Flowers, J., cntercd judgmcnt for bcncfi-
ciary, and insurer appealed. The Court
ol Appeals, 538 P.zd 125, affirmed and
petition for certiorari was granted, The
Supreme Court, Groves, J., held that cvi-
dencc supported trial court's linding that
insured's death resulted from an accidenti
and that trial court's misstatem.nt of law
that insurancc compan1rr which paid bcnc-
ficiary lace amounts ol life policies, had
burden of proving suicidc constitutcd tc-
versiblc error,
Reversed and remanded rvith dircc-
tions.
CAP)
6165 *hcrcin inlurer
pr.id bencficiarY facc
,tcfcndcd on basis tha
not rccidcntal dcath :
no dorblc rccorcrY,
lor bcneticiery to P
ficirry had to Prov(
escturion ol suicide
evidencc.
{. AtParl rni Errot C
Trtal Gr2340)
Undcr circumst:
court'3 misstatement
company' which P;
rmounts of lifc Pol
proving 'suicide in t
recoTcr doublc indel
tuted rcvcrsiblc trror
Clark, llartin &
Ilartin, Denver, for
Harry L. Hellers
spondent.
GROVES, fustice
We granted the
in this case to revic.
dccision, Roth u. (
Conlany, Colo.r\pp.
The court of aPpc
court's detcrminatit
plaintifi's husband,
dcath, and that C
Company (hereina ft
rvas thercforc liable
nity benefits on th{
tolved. Wc rcvers
Plaintiff, thc rvid
sured sued Capitol
the double indemn
insurance policies, r
Iiciary. Thc defen
previously paid the
policies, amounting
tiff is secking to
$16,C00 under thc t
sions payable for
mejor issuc in the
Wc notc, howcver, that thc rqiovcrv eu-
the11ard b,y $i9 dccision E g_llmllgd_ i4S-
'Thc party dealing with the municipal cnti-
ty must hevc actcd in gOod ldth (FIoy-
',uerd a. City of C orlu Christi, $lra), and
ithc contract rnust. be one not positivctv'
icendls'@
l,one rvhich ir-14Cr.9!f-t!ye!E_!lllgl!_-Sf
'hyant of Dot^-cr !o conlract or bccausc stat:
,ulglI-.lrBerdnre was- ng_f_o_llowed in its'
lmaking (5lo@ zt. Board ol Eilucation, su-
|ro). We hold, fur6cr, that tlere can be
no rccovcry \a-hcrc the propcrty is rto long-
cr in cris:cncc or identifiable (cf. Lilch-
lield o. Ballory lt4 U.S. 190, 5 S,Ct. 820,
29 L.Ed- 132; Bardttel! o. Soathern En-
gine & Boiler Wotks, 130 Ky. 2,, ll3 S.
W, 9i), or s'hcrc it cannot be restored to
the plainCff rr.ithout serious damage to
'.r other propcrry of thc municip zlity (Floyd
' Cout ty a. Alten, sufra).
[2] Thc trial court entcrcd judgmcnt
{or the unpeid balancc of thc purchase
\.. price, and th. court of apgcals affirmed.
. "o}t-
IVe belicve, howcver, thet urrdcr thc partic-
*)" ,qr- ulrr facts of this case the proocr rcmedy
\- ort' )\) wesld-br.yq--bccn to grant tlq the distric!
r" .ig$ thc optiqo-siihcr to !ry_-!bq-bd3!q_lUIh
^\ '' idLerest, or to retuflr t}e propcrgland fa-w |ifi*r i' qu.c-s!!e1-.te X"'r'ralOr--ueet-r.l
turn to it by Normandy of thc mon_e1qlaid
erL -the gut9.!4$-!!']ts.-Plg!-!!!g!!!. .gee
Busch-Srlzer Brot,-Diesel Engire Co, t.
City ol Wallers, supro.
The judgment oI thc court of appeals is
modified accordingly, and the cause is re-
turned to that court rvith directions to re-
mand to the district court for further pro-
ceedings consonant with the views herein
cxpresscd,
I'RINGLE, C. J,, and GROVI.IS, J., do- not Participatc.
l. Insurrncr e=523.2(5)
Evidcnce in action by beneficiary to
recover double indemnity benefits under
life policies was sufficient to suppott trial
court's finding that insurcd's death result'
ed from accident, despite evidence prc-
sentcd by insurer indicating suicide.
2, I nlu rencr C=448.1(l)
In a life insurance case, beneficiary
has burden of proving policy and fact of
death and insurance company has brtrden
of proving any exclusions such as suicidc.
3. ln$urancr F523.2(5)
In berreficiary'r lctiort to rccovcr
doublc in<lcmnity benefits under liIc poli'
BnaxoEss-Eaouus
openeir'-E l..Alri?t"re I Nc.. 1016BOX r lt,5
VAILr GOLO, Er6S?
septernber 29r,13 ufr{ia
0. 00
OLI^IISf,HHSffi$^"**
Fon Aprtlj.cation n,l
"^nn i ttor,-l Uue-l,ermitnOO lO Igrl' er: tO ? lO l5 tq,: ; ag
.t
I
I
I
'<4'.t
r[*ue$illlB.w,11rr':]t$*.si€s1].1*ws:T':r:'i..fis5.: _"
i
C O N iD il lT tl O F\ A rl- ilJ$ if rpir---PAfuii-Tl-*-m i-:.=:E* ru"t c;l s;: uaE;;z r::- iii--r.=r r::l-*: mgi u.;t-*:r Efix r;r r:'..r El
Application Date September 29, 1978
APPN_ilOATilON trOP
Publication Date
Fublic Hearing Date
Brandess-Cadmus Real Estate, IncName of Applicant
Name of Owner if
Malllng Address
different from Applicant
Box 1105
Telephone 47 6-L450
Legal Description:
exhibitpropertys unplatted submit metes an bounds descript on as xhibi t )
Application is hereby made for a conditlonal use permit to a1lorv
].na commercial Core I Zone District
Signature of Applicant
( Mark Cadnus )
APPLICATION WILi, NOT BE ACCEPTDD UNLESS ACCO}TPANIED BY T}IB FOLLOWING:
4 lloortnr: lce of S5O.0o..--2. Stte pl:rn. (loor plan rnal other cocuFents ns requtred by ZoninF Ad::tttriscrator.3. A Itst of th.: o$ncrs ol Ihr' prot'!.rrtcs uithln:,iO lc.'t 1n i SlngIr.-F:riJi t:. Resld€n!lf1,, TNo-Flnlly Resldcn!tr[,
or T$q-F:rmlly I'rttn:rry/Sccondtry Rr.sidentlal Zon. Dlstrrcti or adJxc..'nr to thc subjec! Fr.opllrry ltt lll oth.:r zone
dlstrtcts. Thc o$rr..rs lls! str:rlI LncludL. the oalrc of all o$'ne'rs, tlr,-'ir addrcsscs, and a t:enersl'dL'scrtption of
the prop!'rty ownr.d bt r-:|ah. .\ccorrFanyinq thL. llst sh:r.ll be stahp..d, i|ddrcsscd en\:€lopqs ta erch o$o!'r to bo used
tor the u{rlllng ol the liotrce o( llclrrnq,,1. t dr.scrlnrlon o! the t.ccise nil'turc q( chc ptopo::ed u.ie ind its opcrrttn{ chlr.rcterl,stl,ca, End nclsures proposed to
&rke thL. use co[$:rIlbIe $lth o!hcr proFer(ics 1n thc vlclnityi(Us0 the lolLorvlng crltcrtr)
. r. Rclstlotlshlp aod Inp.rct of !he us,' on d!-vclopir.'nt obJ.rc!lvcs ol the to'r.n:b. gtfc'ct ol !h,.. u.r.: or llqht :rn(l rlr, (ll,:trttrrri..\n o( po|rrlatr(rt|. tti/rliportntlon f:rclllttos, rnd othrtr
lubllc (trctlittc-s i|l.! putrltc (:rctlttlr.s n.)c(ls:c. El!cct tlFrn tr.1(f Ic, $I!l\ prr!lcul.rr ro(!rcn,.r. to c(lurteit ton,'iutolnotlvc :rnd pcdcatr.(|t srfoty nnd
constntr.rr.e, trn((tc llov rod control, accc:js tnaneuvcr:\trllltr-, &fid rcHovnl o! snow frot! !nc strc.'ls
Ind n:rrklni rrt.itri;d, Ettcc! ul)r!n thf' chAr.rctrr o( tlre nrr:a tn 'alrlch thc proporcr,l usc ls to bo locetcd, lrlcludtng thc scrl.t
rod blrlk o( !h.J Itropo:;(f\t us.r ln rdI|rtlorr io surroundtng us.j!r.
- .A part ofr,otB & c ,
See attached
Vail Village, Filing First FilingBlock 5-c
Legal Description:
EXHIBIT .'A''
Condorninium Unit 4, THE ERIDGE STREET
CONDOMINIUM, according to the Condo-
miniun Declaration for The Bridge Street
Condominiun recorded in Book 259 at Page
669, and the Map thereof recorded in Map
Case 2, Drawer B, and in Book 259 at
Page 570
Totlll 0F vAll- ' col0!?400.--, l97B euitrtess t-lcrlisE Al)PLIcATI0ll
iti..nr. r.equired under Ord. #l-76)
uSlncsS
Nane of Business
[taiLing AddressVail Location (
Business Phone No.
Local Nlanagerr s Name
State Sales Tax Nurnber
Number of EmPloYees
Sumner: Part-time
Full-time X
llinter: Part-time
Ful l -time -4
Type of Business:
Retail Sales (5PecifY)
Restaurant/ Bar
Lodg i ng
Professional (SPeci fY
Service (SpecifY TYPe)
Tota1 area occupied by br.rsiness €OA s
Corporation {
Phorie l'lo.
Plea3e indicate otvnership status:' Individual
q. ft.
Partnersh i P
List P'artners or Coroorate Officers/Title Addre s s
deo c{"'-<s
1,77 zl
)ysz./a.z-/,3a4 7ee8//'=l,lrtZ7--gv,
'/a 7796/<.Ls.2.4-/er
slness ormerly operate -/'r lfral/tizat 1,Ve f/-g;'s/ Jo-
you ave a ranc office out-$r e cJ.ty r.m 1t s
If es address:
ILIlJlt..!5lne5S ocatrons In
Nr$lE STRF,ET ADDRESS I'tAILING ADDR.ESS PTIONE NO.
197C Liccns e #,rL{!-<>
i{e al ilrfit''
. ,." '-) ./ .-
Stanrfi'ss - {,ul/ro4rt- (rn/ &
Tor"n CIcrk
llox 100Vail, Co.816S7
rplrcat ron Uate:
r4/ro,.tts.t ?,o t/7,?
'
on'
"U':;:,': r:: :-i" ) )>r
q
,,Olll I
Dui ldifi,
'51'*ffi-
i
|s*nil!!ffi!!!ry "o..'.-"*netryl1 --
box 100
vail, colorado 81657
(3031 476-s613
Mr. Leo Brandess
Box 2328
Vai1, Colorado 81657
department of community development
18 September 19?8
Re: V:iolation of Zoning Ordinance forReal Estate Office located
on Bridge Street
Dear Mr. Brandess:
It has been brought to my attention that you have openeda Real Estate office next to Kentucky Fried chicken 1n thecasino Building on Bridge street in lrre village. This propertyis located in a commerci:rr core r Zoning Distiict where a RealEstate office is not a permitted use on a floor at street level.rt is an al1owab1e conditionar use rvhich requires the applicationand issuance of a Condi.t:Lonal Use permlt.
I have enclosed an application for a Conditional UsePermit which describes tire required procedures. The conditionalUse requegt onee submitted, will be ieviewed by the planning
& Environmentar commi.ssion at a regularly scheduled pub11c meeting.At the meeting, the Planning & Environmental commission wilt reviewyour request according to the crlteria stipurated in chapter 18.60of the Zoning Ordinance.
This ConditionaL Use Permit is necessary for you to continueoperating a ReaI Estate <lffice at this location. I will a11owyou to remain in operatj"crn for a period of time not to exceedforty (40) days. This wJ-l1 give you until October 3, 1978 toapply -for this permit. llhis will a11otv for a 15-day publicationperiod prior to the Planrring & Environrnental commisi1bn meetingon October 24, I9?8.
If an application has not been submitted by October 3, 1978,I will forrvard this ntatter to our Town Attorney to begin 1ega1proceedings.
Page 2
Mr. Leo Brandess
contact
JAR/gew
ENC
Ib-r*$'e'&2,;,/ames A. Rubin
Zoning Administrator
If
me.
Vlolation of Zoning Ordinance
you have any questlons regardlng this matter please
Slncerely,
Application to Town of Vail
for Condominium # 4, Bridge
for Conditional Use Permit
Street Condominiums, VailrCO.
1.
2.
3.
4.
5.
Adjacent Property Owners :
Bridge Street Condominium #1Aztec Conpany
c,/o Savage, Savage & Brown
2809 N.W. Expressway
OkLahoma City, OK 73112
Bridge Street Condominiun * 2
Warren K. Pul-is & Helga Pulis
Box 999, Vail, CO. 81657
Bridge Street Condorniniurn # 3D. Telleen & James Cotter
Box 385, Vail, CO. 81657
Bridge Street Condominiun * 4
Brandess-Cadinus Real Estate
Box 1105, Vail, CO. 8L657
Bridge Street Condominium # 5Casino Partners, Ltd
601 East 8th Avenue
Denver, CO. 80203
Adiacent to the South
l. PA. Cramerus & Joanne H. Cramerusc/o PIaza Lodge
Box 68, VaiI, CO. 81657
Adjacent to the East
t. Town of VaiI
Bridge Street
FFl{!#W6!*!rt4i;n!r.*,effi@+d:r."'ffiidrq!@{l+''tr-!4l!|!&"qBr.f+|sr.f,f+tq
i.**-:r'._ _' . ' ,
_ ., , L ;-'.-i--:i..6t,1
Totlll 0F vA I L ' col0ll^qq - -. ^' l97B suiirtess ltcErlsr AI'PLlcATlofl
' ititun'e "iui'ed unacr ord' #l-76)
uSlness
,fai1ing Address .= .{4e
/ai1 Location (Bui ldi
{arne of Business
lusiness Phone No.
{umber of EmPloYees
,oca1 }lanagerr s Narne -itate Sales Tax Number
nar:le
Summer: Part-time
Full-time X
tlinter: Part-time
Ful I -time X
TWe of Business:
Retail Sales (SPecifY)
Restaurant/Bar :
. Total area occupied by. business €OO sq'
Plea3e indicate orvnership statu.s: Individual
li;?lii,"
Service (SpecifY TYPe).
G+
Partnershi p
Addres s
Corboration f
' Phorie No.tist P'artners or Corporate Officeri/Title
{eo \szdelzt .
nc-.iZ ,c/e-s-s 'l.c:.2.E /,a.V.f
'u 7e'-8//'=8T,7_€!'
,E?
y operate ,(a//tizar 4rl"+/a.ge€,
*7
\,//zC-
you ave a Tanc ce ontgidE city Irnrts
es rve address:
1t 10n a usiness Locatlons ln
STREET ADDRESS I'!AILING ADDR.ESS .PTIONE NO.
t/7,?
)cn i'rb t)'1 te X r::::i" ))>r
1973 Liccnss fl )-.-{Zo
5U
'-/
Sta.zry'tss - {4r/.-t*
Plcasc' Ilail APPI ication
Tor"n CIcrk
Ilox 100Vait, Co. BI6S7
ile al tlr'
Firc
Tradc Namc
zo,ii
7*/ 4
:4]6!,'*ir!riw
4
'riu /d, /-."^ _zffT.I
L,. I //.+ tx .';/lt; )tl vL/r'vta /.tr, t t /,'
1TIIAT YOU SHOULD i(i'IOlT I3IJFOF-E OPTJI'III{G A BUSIT{ESS
Uefore you open or remociel a business in the Torvn of
ValI, there are a ferv thlngs that you shoul.d knolv in regar(l to
signs, zoning, and construction.
In orcler to rnaintain tite highest standards of natural
ancl man-made ervironn-.ental quallty, the Town Of Vail has estab-
Iishecl a Zoning Ordinance rvhlc.lt createcl the Oesign Fieview l;oard.
if you are pj.anning arty cl:anges in thc exierior of a building,
all plans mi'.st be ipprovect by ttre Design i',evie1 Roarcl before
conslruction can talle place. In adclition to reyierving buildtng
p).ans, tlte i.resign Revierv Boarcl also r'evigrvs sigtrs, in terns of
nurnber, size, location, and design. ite urge you prior: to maliing
any flna1 plans re6Jarding nerv constructiou, alterations, or'erectlng signs to contact the Departrnent of Convirunity DeveJ.opment
in tne Town Offices.
If you are planning on expanding your buslness space or
moving to a new location please contact the Zorring Adninistrator
so thai compliance rvitit tlte Zonlng Ordigance can be rieterrnined.
If you are planning on cloing any dernolition rvotl< or any
internal structural ciranges, api)roval must be obiained frotn the
Euildlng Official alrcl pioper pernits a.nd licenscs obbained prior
to constrnction.
Tire Torvn of Vail also has an llnvironrlental ltealth DeFart-
trrent, ancl alL plans for restaurants, bat's, Ancl other focrd ilanri-11n9
estairl-isiunents rnust be ::evierved by the Environmental Ilealth Of f icer
prior to constructlon.
ff you have any questious about the above-mentioned
regulatlons, please feel free to contact the Torvu of Vail's
f)cJr n-r' t nrr:n t- of C.xrnuruity r)cvol olrnrcut , i.iox 1OO, Vai1, Colorado; of
call 476-s6l3.
enses Incurred for ntn Real Estate Compan
Purchase of Space:
Purchase of Inventory:fnsurance: professional
Inventory
Space
Furn i ture
Qrpewr i terPainting - Office SpaceCarpet Cleaning
?elephones
Xerox MachineStationary
Printed Forms
Maps & Owners Lists from EagleLunber & Labor for ConferenceLegal Fees
TotaL Money Invested inBusiness to End of October
s 155,000,00
30,000.00
800. 00
200.00
4 88.00
5,000.00' 800.00
400.00
35. 00
2,500.00
4,500.00
1,000.00
77.00County 150.00Roorn 400.00
4, 600.00
2,000. 00
3, 575.00
$ 222,990.00
============
Rothgerber, Apple & powers GOOThomas & Esperti 2,000Mulligan & Damas 2,000
Travel Expense & Telephone Chargesin connection'with puichase of lpace
f ntere.st on f nvestment of $195,000.00= 1787.50 per month
2 months interest period
t (we )AAA Acme Hair Cutting Co., fnc.of lvlill Creek Court Building
APPL ICAT I ON FOR VAR I ANCE
And/Or
COND I I IONAL USE PERM IT
Ordlnance No. B (Serles ot lgTi)
(App I icanii (Address)
Colorado
Park ing Variance
Con d if ional Use permit fo allow
Vai.I Phone 476-432L
(C ity )
fhe Vai l Planninq
Sect ion
Zone.
Lot,/trac't-.----.-, Block
j:_l:l:!V rgcuest oermission to appear beforeuomm I ss ton to req uest the fo I lovr inc :
t
(
(
(
Varian.:. f rom Article--,.on I ng Uhanoe fron
In C. C. I
For the fo I low i ng descr ibed p rope rty:
Filing Number
Clearly state purpose and intent of this appllcation For the
ora
What do you fee I
was oermitted
is the basis for hardship in this case3 Applicant
a building permit and has expended a great deal of
money on the premises before being informed of the necessity for
a Conditional Usc permit,
qSllfryQfrltltgglr'lt$ t'i*3q1!r*i4?!1r!Ny&"'*.
t
Tt)
MEMO
PTANNING COMMISSION
DEPARTI,IENT OF COM}IUNITY DEVELOP}TENT
March I0, 1978
Vail Associates - Apptication forConditional Use Permit to AllowReal Est,at,e Office on First Floorin Commercial Core 2 Zone District.
rROM
DATE
RE:
Vail Associates has applied for a Conditiona] UsePermit to allow the existing real estate sales office to
expand into 570 sq. ft. currently occupied by the ticketoffice. The space is located on the east side ofthe Gondola II Terminal Building.
18. 50. 060 Criteria-FindingsA. Before acting on a conditional use permit
application, the planning commission shallconsider the following factors'with respectto the proposed use;1. Relationship and impact of the use on
development objectives of the torr/n:2. Effect of the use on light and air, distributionof population, transportation facilities,utiLities, schools, parks and recreationfacilities, and other public facilities andpublic facilities needs;3. Effect upon traffic with particular referenceto congestion, automotive and pedestrian
safety and convenience, traffic flow andcontroL, access, maneuverabiJ.ity, and removal i
of snow from the streets and parking areas;4. Effect upon the character of the area in whichthe proposed use is to be located, including
the scal-e and bulk of the proposed use inrelation to surrounding uses;5. Such othe! factors and criteria as the
commission deems applicable to the proposed use.
The applicant states that " . . . the reaL estateoffices space is no longer adequate to accommodate thestaff required to service our customers. Tt is our intentionto move the present sales manager into the expanded space andto add an additional salesperson and corporate propertiesadrninistrator. It is our opinion that this expansion wi}lhave very little effect on ttre character of the area. Infact the removal of the present fortress type, ticketwindows and the substitution of a glass, slore front typefacade on the east wall should subitantiatly improve theaesthetics of the area. Finally, we see no significant
d.Ee'2
IdEMO - PECstuart canada - Applieation for cup to alr-ow a reaL estateof,fice on ttie rrrsi floor ot-in"-LionsHead Arcade Bldg.Commercial Core Z Zone.
The exiEting use seems toretall uses in other butldingslnpact on tbe a-rea.
be compatlble with suroundlngand has had no notl.ceable
- -rb9 Departne-nt of conmunlty Deveropment reconmends that theconditLonal use Pernlt be appriv'ea baslo on the followlng findrngs:
. 1.) That the proposed location of the use ls inaccord witb the purposes of this ordlnance andthe-purposes of the district in which ihe slteis located.
2.) That the proposed locatlon of the use and tbe. conditLons under whlch.it would te operaied ormalntained wllL not be detrimental to the publlchealth, safety, or welfare, or materiallyinJurlous to propertles or improvements in tbevictnity.
3. ) That the proposed use will conply wlth each oftbe appllcable provisions ot tlii ordinance.
F@4ry1.*S{rtri"drq'4"*-1T:i'w:.9i '.".
'j
w."-t r'"rrr.+.{t*r6F $r.rq@{e.1€{?t'*}1ffi*,],:1ff*1:!rT:fsffi11.i,{s'r|."f.4i!f4i!r'l*q#: ,
It{emorandum - Brandess-Cadmus
Page 2 P.E.C. LO/4/re78
could severly reduce tbe amount ol prime retail space in the
Town of Vail.
Tbe effect of tbe use on light'and. air,distribution of population, transportationfacilities, utillties, schools, parks andrecreation facilities, and other publicfacj.lities and public facilities needs.
IYe foresee uo adverse impacts on these factors.
Effect upon traffic with particular reference tocougestion, automotive and pedestrian safety andconvenience, traffic flow and control , access,maneuverability, and removal of snow fron thestreet and parking areas
We forsee no adverse .impacts on these factors.
Effect upon the character of the area in whlchthe proposed use is to be located, including thescale and bulk of the proposed use in relationto surrounding uses.
"commercial core 1 District is intended to provide sites and to
maintain the unique character of the vail village corunercial
area, with its mixture of lodges a^nd commercial establishments in
a predominately pedestrian envlronment." (La.24.010). BeaL Estate
otflce usage of a ccI street-level locatton is neither in keeping
with the purpose of ccr zoning nor the character of the vail village
area to which this zoning applies - pedestrian-acce,ssed over-the-counter
retail, eating, and drinking establishments, and. 1 iges.
Findings and Recornrnendations
The Department of Communlty Development recommend.sthat the Conditional Use permit be denied. based on thefollowlng findings:
That the proposed locatlon of the use ls not lnaccord with the purpose of ttris ordinance andthe purposes of the district in wbich the sitels located.
The Departnent of communlty Development recommends deniar of this
,/-. l_ / , /)/u@ftm /r6nscn/'Dfe
I"lINUTES
PLANNING & ENVIRONMENTAL COMMISSION
26 SEPTEI4BER 1978
COI'IMI SS ION I4EI'4BERS :
STAFF:
Roger Tilkemeier
Gerry White
Ed Drager, Chairman
Sandy l4iIls'Pam Garton
Jim ltlorgan
A1 len Gerstenberger
Jeff Flagg
The Fourth ltem on the Agenda-was
Use Requgst for Benchmark Investments' Inc'
Conditional
ED Benchmark Investment Company' A re-grlest for
a conditional use permit for a rea'l eitate office in the
Lionshead. center a-uitaing- Mr. George Rosenberg is here
on behalf of the aPPlicant.
GR George Rosenberg, attorney at law' representing
the apPlicant.
GRlthinklhaveasolutionforyour.problemoh
handling the family a.fit-titiott. rhe County is contemplating
;;ili;ai"g an insp6ctor to go around and check these thinss
out.
ED Do You accePt bids for the job?
GR Basicatly, I think you have all received the memos
to the staff "n lfti=. Real uiiefly: we't9-it Lionshead'
This is the Gondola Ski Shop. we've got Alfie Packies
Restaurant and Lounge behind it'
GR lt's an application for a Conditional- Use Permit
to +-ake less than a'O'O.q""te feet out of the Gondola Ski
Shop and turn that into a general business office for a
real. estate bro-kerage.
GR Some corrments or observations on the staff analysis'
I. l^le would "o"i"ta ihat a real e'state of f ice does in fact
contribute to sales tax revenue on a direct basis' I could
expand on that. I think we are talking basically^Yni:^::^tn"
f.!i. philosophy of owning retail and restaurant on grouno
fIoor. It's m.irriy gun.titi"g foot traffic and r'm not sure
Page 2
PEC
26 September I97B
sales tax is a specified criteria in the whole zoning scheme-
Typically, it is not. But even if we assume that is a factor
here, then I would take difference that a real estate office
i s very active in that you have a lot of foot traffic. Sales
tax coming from the fact that these people are going to use
the restaurant and bar so \"/e have sales tax revenues there.
These peopte are not just coming into the real estate offi-ce
and promptly leaving. They are in the area. They 9oin9 to
avail themselves of the other facilities.
Also, I think, the staff was perhaps a litLle
naive when they say that a real estate brokerage operation
does not need a street level location. It is usuallyr in
most parts of the country, a requirement that you do have
street leveI to have a successful operation.
On the other factors that are to be considered,
the staff said they don't see any problems so we can skip
on on that point.
As far as I think the matter of precedent will be
raised, f don't think we're making a precedent. The very
nature of the process, that is the conditional use applica-
tion, implies that you are asking for something other than
is your right as a permitted. use. So the Process itself
means that every tirne you are going to be deviating from a
se! standard: that's the whole purPose of having it. If
not, you might as well make it a flat prohibition- Say you
just canrt have it, period. So each one has to go on a case
by case basis.
The other two examples are indicated' I don't
think we have an expansion of an existing use on these
other two examples. Let's make a distinction of that difference.
They lvere in fact, separate new locations. Tlris would be more
in the sense of an expansion. The other two permits that were
granted for this type use \^/ere different locations physically'
i tninf we do have a fact difference there - Even if you want
to call it an expansion, nonetheless, it is still an increase
o f this use.
The other thing is, what do we have in this space
right now? It's history has been basically storage and- in. --.reiy recent times, for lbout the last six month=,.it's,basically
bee-n dead space. so what the applicant is atternptlng to do Is
Page 3
PEC
26 September l-978
to put it back into active, useful space which will, again
if we want to use sales tax, it will generate sales tax' it
will generate foot traffic.
It doesn't have any other problems' There are no
other incompatibilities with any other standard. we're not
talking aboirt a .noxious use or impacting parking or anything
like that.
So I think basically that's the essence' We would
urge that you reconmend favorably on it. lrte're oPen to ques-
tions. We have the aPPlicant here -
?Doesithaveaseparateentrancealreadyorw.illit?
GR No. At present you can 6ee the wall' It is still
indicated. L'm =oity. Th-e walI iq noL there. It is indicated
where it will go and, this would be the entrance' It's an old
aoor yon're fafriliar with. The Gondola Ski Shop. I think it
was about t\^ro years ago when they revamped the whole entrance
for packers and ;o*e 6th.r complicated deat. But this is the
existing and thi only entrance point that the Gondola Ski Shop
uses. itti= :-s that lervice corridor if you 90 into Packers'
depending on which way you viant Lo go. ire fris. that tofig i'1lf-
wat. These are the r-""-troo* faciliiies. So that door would
be activated, but it would be separate. we'd lrgve a wall here.
They wouldn't be able to from thl Gondola Building into this
office.
We feel basically that it is a very minimal thing'
You know' you're dealing in tnis thing with Iess than 400
square feet. Youtre noi realty diminishing anything' I9Y't"
t aring off a little bit of Gondola. Gondola is about 3200
rqrrur6 feet. They're still going to have a tremendous amount
of traffic in there.
One might analogize this to the fact that every
retail operation has some office space in it' I grant !l-t^f^ --,,--thatrs a-ncillary or secondary use of the primary use. Obvrously
you've got to hive some offile space. ,Ptt-if you would look-.t it in ttre sense that Gondola uses this for their office
space, You're really not changing anything on the use'
ED Any questions from you folks up here? Anybody in
the audience want to speak to that one?
:il"' *':"' " "
ir&. f.*a*d.**.:.n r*r _j .,
Page 4
PEC
26 September 1978
Thank you.
JM I think the
already given' in the
ED Which area?
fact that there has been two permits
area,
GR we're talking about canada's took over Performance ski Renta
and the Vail Associates Real Estate converted the old ticket
windows into a real estate operation.
Jt'l It seems that this would be, that I realize lhat a
precendent doesn't real-ly, that the application as a pre-
celent: doesn't really apply in a conditional use. It seems
unfair. In the immehialL lrea it has been allowed twice and
would be denied in this area because ih is a new situation.
Perhapsinareasvlithintownorareasevenfarther
away from VA', etc. rvhere is has been granted, -it would be a
dif?erent situation, but I can't justify the fact that there
has been two condi.tional use permiLs directly across the
street from this building and turning this one down' !
SM I guess the situation where I will disagree with
you on that is. the fact that Vail Associates ReaI Estate
ias there, and that that' was an expansion. Candda's was
upstairs and they came downstairs. This is in effect, grantj-ng
a totally new, iL i47as a ski shop, which generated that kind of
traffic.
And I guess the question that I think we're looking
at, and in terms of the per*itt"d uses offers for the things
that we're trying to encourage, are the heavy foot traffic'
And I think that particularly in that situation i-n Lionshead
where we're looking at Lionshead and saying, 'what ls wrong
with itr' 'why is it dead in the day sometimes-r' 'what is
the problem?r And I think one of the things that we have to
looktoistheshoPspace.Dowehaveenough?rsitclose
enough to the mall? -an people get to it? What is the
character of the shops that are there now?
And I think that a real estate office is really a
more specialized area- In other words, it is more of an
office situation where people are going to be using it as- -they would in the Professional guiiding or a bank' That kind
of I use where if I,m not looking for a condominium, I'rir never
Eri-lFqrr$r.*r
Page 5
PDC
25 September 1978
going to wal-k in there. Yes, it generates traffic, but it
generates a specialized kind of traffic as opPosed to some-
one who's going to walk up to a sportts shop or a ski shop
or a gift shop and stop in. And having a gift shop, for an
example, on that corner, might generate, would probably
generate more traffic than just the specialized kind of
person who's going to go into that real estate office.
You know, you just donrt get the foot traffic on
Bridge Street. You know, theytre going into Pepi's and into
Gorsuch. They're going into all the shops up and down the
street, and I think that a problem for Lionshead, alrd I think
this wouLd be detrimental to that particular building and to
the maII area to start putting in more of an offj-ce type of
business as opposed to the shop concept.
JM I appreciate the horizontal zoning aspect of it,
but I sti}l feel that if there, whatever, whether eSpansion, what-
ever you want to consider it: VA took up some first floor
location with their real estate office; Canada's did also-
And I feel that two permits in that respect, whether, whatever
you want to call it, expansion, new whatever, still took up
area that was not to be used in that respect and these:people
are applying for a similar situation right across the walk
And I find it hard to take a consistent stand and turn him
down.
Like I say, if it was in the Vi1lage, there isn't
any what I consider a precedent. Strictly I guess there
isntt such a thing as a precedent for a conditional use-
SI'l A conditional use is somewhat different from the
variance in that we say that 'variances are precedent setting''
But, and I agree with you, that perhaps we're looking at
Lionshead today and saying 'maybe those were two mistakes,'
and are we compounding the mistakes with this situation?
ED Irm not sure whether we're to sit here and deternine
what is the best use for a piece of space in Lionshead. Maybe
it's a popcorn stand, maybe it's something eLse.
SM We're in the boundaries of the horizont'al zoning'
BD That's not what's confronting us today- Whatrs
confronting us today is a request from by some specific
individ.uals who apparently have a lease or an option on the
t_l||'ry.!'tF-ffT
Page 6
PEC
26 September 1978
space to put a real estate office in there.
PG Werre not repl-acing storage. ....
Sl'1 Which is not a permitted.....
ED Werre not replacing storage and I....
GW No, but they are taking space that could be
valuable retail space which w<.ru1d be conducive to the
type of street life that we are trying to attract into the
Lionshead area for no other reason thag it is the village.
And I would like to just read what is on this
statement from the Department of Community Development
because I think it is pretty well said:
There is a very limited amount of street level
sPace in both the Village and in Lionshead core
area and we feel that grant.ing this conditional
use permit will lead to other similar requesfts.
This could severely reduce the amount of prime
retai] space in the Town of Vail.
And I would say that that is a very accurate
statement.
PG .Canadars....
cW They moved their whole office down.
ED turd I think they also expanded from where they
were up to the mall, taking over sbmething that last winter
vras an atrocious looking pinball gallery,
GW That was an existing office that expanded.
ED No. Didn't they come. .pinbalI machines were?
Whatrs in there?
? . . space on the ground floor. And there wasn't
a real estate office there before. There was a ski shop there
before
Page 7
PEC
26 September 1978
GW That was a mistake. I agree.
reason to compound it.
But there is no
GR So yourre also. You're worrying (?) on denialty (?)
of protection and discriminatory zoning. If you want to
push it to that.
Gw I donrt agree.
SM George, w€'re trYing to look at it,
conditional use.
l-ook at, this
GR Yourre talking about generating foot traffic.
Correct? This geneiates foot traffic. You're not talking
about a type thing where somebody makes an appoinLment
to come see me or to go see a doctor, Thatrs different-
SM Werre talking about horizontal zoning and permitted
uses in CC 1 or 2.
GR I know what yourre talking about-
ED Go ahead.
R. Allred:Cou1d I explain one thing about this? First of
all. If this door is not being used and if this space does
not, if you donrt grant the permit, it's going to be con-
tinued to be used by Gondola Ski Shop. And their entrance
is going to remain over here. They're going to have another'
a fittfe less than another 400 square feet added to lheir
whatever, 3000. I dontt think itts going to create any more
traffic in to Gondola ski shop because they have another 400
square feet inside. In fact, I think that another tYPe of
brisiness is going to create more traffic. More traffic,
that's wha! you'ie talking about, which you seem to be'
But otherwise, you're actually dimishing traffic
because I donrt think any more people are going to come to
Gondola Ski Shops because they know there's another 400 square
feet inside. It's not going to go for another use'
? You may end up
? Are you leasing this from the Gondola Ski Shop?
RA The landIord, the landlord developer says that
w".'q'il-!-rlGi!t{sF|Y:'*:T:*Yfr1*Yq{F+e:*....1"'Y.wi&ir{e*i!|s}dfi.tiiQnf|{tgg'-.s.ffi:Y:?1-]:ffita1:.-
Page 8. PEC
26 September 1978
lte can have the space, that we can have 400 square feetor whatts left and that he would cut the other lease down.
He charges.the Gondola Ski Shop once on all the
space, and he has the right to do that. We have the firstright .. (?). There is no wall between there now andthat door is not used and cannot be used. Therets a thingin front of it.
GR Therers al-most aLways been storage here. In fact
it was even uglier when they didn't close it off. It used
to be all glass if you recall-. And all you ever saw inthere were boxes stacked up.
So again, we're talking about trying to promote
the same goals, I think. I don't think werre reallydisagreeing on the goa1s, that is, let's get more people,
more warm bodies moving around. And storage does notattract people. \
And you canrt deny, that shop will be using it
as storage. i
SM Thatrs true, George. Within the confj-nes of
his shop, he can put his office or storage space wherever
he wants and I would grant that every shop has storage
whether he puts it on the street or in the back room is
another question. But, what werre looking at is the desire-
ability and we're looking at it from the point of view of,
I would think. what makes sense and what is good for the
community in terms of the viability of Lionshead.
:l- . :GR You're getting into a very large philosophicaL'question which has puzzled everyone. I'lhy doesnrt Lionshead
go?
SM Thatrs absolutely rigirt, and what I'm saying....
tGR And the whole thing revolves around this. Either
lin general or specifically. First of allr lou're talki-ngabout such a nominal or insignificant thing. If you were
tatking about say 8000 or 9000 square feet, I could appreciate
more concern.
But for soraething 400 square feet. If this were
-tffiilHgffff YiT!'tFF!rr?i1""{Fr'r !n{i :t dt' {t+4'" *
Page 9
PEC
26 September 1978
something all- by itselfr 1lou certainly couldntt put a-restaurant in there. You have to apply the economics
and the feasibiJ-ity. And it's questionable what kindsof a small shop you could put in there.
And typically there are some optimums. You talkto businessmenr 1lau talk to bankers, and they'11 tell you,look, ygu need a certain amount of floor space kicking outa certain amount of revenue. And again, that becomes
marginal .
If you check the history of shopsfolded in VaiL, it's usually the ones thatlittle tiny things. Theyrre so sma1l, they
enough room to do anythlng in.
that have.
have these
donrt have-
' You have to have openers.
? That's immaterial, George-
Gondola Ski Shoprs.
The space is
GR Thatrs true. But lrm going to make it anotherangle. If you were to isoLate it, you would have the sameproblem.
SM But, let's say that the 3000 sguare feet as itdoes exist is divided into 400 square feet, another 400 squarefeet, another 1000 square feet, if in fact the Gondola Ski
Shop were not too occupy that space for a given period of
time.
And then we have tb look at, again, it would bea continuation of conditional uses down the line.
.you don't know.
Sl,l And then I t.hink that then it 's. . . . .
Sure, you don't know. But it's the responsibility,it seems to me, of this conunission in terrns of granting aconditional use permit to look at the kinds of shops that weare to look at in terms of the horizontal zoning for firstfloor. And I think horizontaL zoning, and I donrt know be-
cause I didn't write it, but it seems to me that the motiva-
tion behind it must have been viability. What's going tofly. And is it offices on the first floor and shops on the
second floor? Or visa versa?
ry.
Page 10
PEC
26 September 1978
It doesntt seem to me to be a logical use.
AG It is a permitted use providing that you get thec,onditional use permit. In other words, itrs not askingfor something that is not in the conditional use permitsection. We're not asking for a ....? or somethinglike that. So, youtre not that far apart, really.
JM Well, I would suggest, Allen, even what you aresayinqj is that each conditional use permit is to be judged
upon its own separate thing, obviously.
This use, I think, does entail that there, Ithink as theytre saying, that there's going to be morefoot traffic by this use than what it is being used'for now.
And I think that thatrs what we,re trying toencourage with the horizontal zoning, Now this admittedlyis a conditional use of the horizontal zoning, but asstorage it's not doing anything for anybody.
I realize thatcircumstance seems to be
worsening it.
AG Let me clarify the staff position by clouding itup. George ancl I discussed this yesterday and this isnrt oneof our st.ronger staff recommendations. We dontt want toget our back broken over this.
On the issue of the conditional use, I took thelaw book home and what George just said is exactly right
and you all remember the world famous case of Archbishop
OtHarars appeal, remember Jay back in 1"957. And the courtnoted that the special use, which is a conditional use inour terms, is a permitted use if the tests have been metas they were in that particular case.
Now, I talked to Rider about this and what it kind of
comes down to is that we list criteria and if we canrt
show that they are having negative impact on us, then theytrein good shape. They do not necessarily have to prove thatt'hey have to prove that they are doing anything super good
because basically it's a permitted use.
Lionshead is a situation but -thisbettering it rathbr than necessarily
Page 11
PEC
26 September 1978
On this situaion, if you look at it in terms ofthe use, the change of use for that individual space, I'agree with Jim, it's definitely an improvement. I thinkit will bring in people
The reason I'm Lukewarm on it is I think in theoverall scope of Lionshead, with four real estate officesalready, this would be the fifth, Vail Associates, thewhole area is in sad shape because there are no trafficgenerators.
I think the real estate office can benefit. ...anyhow, it's, Irll stay out of that discussion, but itrsnot like having a lot of very good shops as compared tothe Village.
ED At a certain point, economics wilt take careof it, probably, I'm sure.
AG I think what's happening, a little bit, again asan asidei l donrt know what yourre paying for lease space,but I think that the Lease prices are cheaoer in Lionshead.than in the Village. The lindlord would tlth"t go ahea{and lease it out to a real estate office than Lo storageto get more money and iL's becoming a self fulfillingprophecy.
The prices go down, more offices move in, andthere aren't any people, prices go down, offices fill in \all the voids and the shoppers go to the Vi11age.
This probably isn't the turning point whether
Lionshead makes it. In factr 1lou probably could presentthe case that if the real estate office is an improvementin that area, that, it brings people in rather than thestorage on Gondola Ski being too big, the space becomesa little bit more viable, and they can lease it out tothe next, the jewelry sales person who really startsgenerating a lot of revenues per square foot.
So you could argiue that this might be the saviourto Lionshead. Boy, I really got carried away with that.
Do you want to tell us about Archbishop O'Harars
Page 12
PEC
25 September L978
There are three lawyers here who are dying to Iearn....
Sl4 Letrs not because $re need to qet on with it sothat we can get out of here.
ED May we have a motion on this one please?
GW Yes. I would move denial of the conditional
use request for Benchmark Investments, Inc. in accordancewith the statement by the Department of Community Develop-
ment dated September 21, 1978.
SIl Second.
ED We have a motion to deny the Benchmark Investment,
Inc.rs conditional use permit for a real estate office in
Lionshead Center made by l4r. I,thite, seconded by Mrs. Mills,
and is in conformance with the memorandum, I don't know
whether or not you said that or not.
GW Yes.
ED All those in favor of the motion which is to heny
the conditional use permit, indicate by raising your hands.
Alt those opposed to the motion-
We've two for the motion, I'1r. Ivhite and Mrs. Mills,
and.two against the motion, rnyself and Mr. Morgan,
SM In which case, it is denied. Is thal correct?
? The motion fails, doesntt it?
ED That motion fails. We have nothitrg.
JI'l I wiII make a motion for approval of the conditional
use request for the Benchmark Investment, fnc. on September
2L, 1978 for the building of Gondola Ski Shop commercial sPace.
ED The Chair will- second it.
Now, then, well enough. AII
motion to approve. All those opposed,to two vote split.
those in favor of the
We have the same two
Your request for a conditional use permit is denied
based on the fact that a Lie vote is a negative vote.
-end-
r*sf{lrrffimmr'T3tT*n I#3: 1-]la:"1::]:"""yf inyl_t=*:""1rw
SALES TAX PROJECTION
FOR 1978
Sales (S)
50,000.00
40,000.00
20,000.00
.. $ 3
Sales Ta>
500.00
7t
Art Gallery, projected Sales
(estimated .100 n ight)
2 2 bedroom apartment each(estimated 100 night
I 3 bedroon apartment 2 g
(estimated 100 nights)
Total Sales Tax generated
t each =
@ $ 1oo,/night
125.00/niqht
fron
2 ,800.00
1,400,00
875.00
5 | 075.00
8,575.00
s 3,5oo. oo
15 225.00
12, 500.00 ''
Home Management
TotaI Contribution to Sales Tax
Anticipated Sales Tax Generation for 2nd year of Operationi
Art Gallery, projected sales
Home Management:
50,000.00
Number of hornes & condominiums rented
& managed will at least have trippleddue to new projects, and property until
nor,r non-rental property.
Lodg ing
Minimum of Sales Tax Contribution
2nd year of operation
217,500.00
18,725.00
1st year home manaqement
2 houses each @ $ 200/night
\r.(
N | -{,1
AN ECONOI.IIC PROFILE OT VAIL
prepared by
Vail Resorc Assoclat ion
as prepared by:
tlichael McKeen
VaiI Resort Association
February, 1978
PJ1TIO OF RETAIL sALEs To GUEST NIGHTS:*
For the th!1d guarrer 1976:retall aglee: $I2r253,000
For the fourth guarter 1976:retaLl sales: $12,583,000
For the flrst quarrer 1977:retall sales: $25,525,000
For the second quarter 1977:rerall sales: $10,377,000
to 621r000 guesc nlghts.
to 92,000 guest nights.
to 881,500 guest nlghts.
to I73,250 guest nlghts.
Per Guest Night
Approx. $' 20.00
i:2. oo
29.00
60.00
For the year
retall
per 1od
eales:
July 1976 through June 1977:
$60,738,000 to \,767,750 guest nlghts.*.
*
*
Third quarter lucludes the nonths: July, August, and September.
Fourth quarter lncludes the months: OcEober, November, and Deccnber.
Flrst quarter lncludes themonths: January, February, and March.
Second quarter includes the uonths: Aprll, May, and June.
Bssed oo Va1I area retail sales. '
Retall sales flgure does not lnclude mountaln operatlons, oedlcal,
professlonal , or eervlceb on whlch no retall ealee tax {s collected.
An estlrnate of these aalee approach $18 nllllon.
TOTAI BANK DEPOSITS*:
Tocal depoelte for the year 1977 tn the Bauk of Val1:
$68,323 nllllon per year
' i:. $l?i980 ollllon per year
$ 34.35
Morgan show $ spent per guest night
rJ. v\J [/t:r rrrYrr u
18.00 per night
VRA records
for lodg ing :
according to Mary
Summer: SWinter: I
-7-
MEMORANDUM from Department of Comrnunity Developrnentto Planning & Environmental Comrnission
dated October 4, LgjB
"ReaI Estate Offices do not contribute directlvto saLes tax revenues and do not need a streetLevel location to be successful".
of the total sales made by Mark and Marta cadnus from January,61t were parties who came specificalry to vail upon being co-niactedby either Mark or Marta to purchase real estate. These iartiessPent anywhere from three to five days looking over the.jair area.During this tine they contributed to sales tai through rbaging,food - restaurants, and gift items. (see attached r6port ny vie -An Econornic profile of Vail - February 19?g)
of the 6Itr 4It used a local interior decorator for either furnishingor refurnistrlng their new apartment. The 418 using interior decoratorsfron the Vail area spent in excess of 9g0,000.00 l6carly. Thus realestate sales have contributed to the sales tax for Vail not only throughIodging but also through merchants in all areas.
I
I
I
ReaI Estate Companv
Ke1ton/Gar ton Real Estate
Arthur G. Bishop & Co.
Kelton/Garton Real Estate
Byron D. Brown Real Estate
Tinberline Properties
Sl" if er & Co.
Bradway Real Estate
VaiL Management
Vail Associates Real Estate
i Rendez-Vous West
/ Vail Home Managenent
| (formerly: Slifer & CO)
a Crossroads Realty
Gore Range Properties
Canadas at Vail
iI Vail Associates Real Estate
Timberline Properties
Gore Range Properties
(Home Management)
Location
Mil1 Creek Court
Mifl Creek Court
Rucksack Bldg
Deli Bldg
Deli Bldg
Slifer Bldg
Mountain Hau s
Schober BIdg
Sitzmark Bldg
Village Center -
Crossroads
Shop tevel
Floor
lst
1st
2d
1st
2d
lst
1st
zo
1St
Ist
1st
lst
Garden Level
1st
lst
Ist
lst
3
F-r
I
H
ooo-
-cac
,A
J{
Crossroads - Shop Level-
Vail 2l Buildinq
Lazier Arcade
Gondola Bldg
Montaneros
Landmark Bldg
According to Memorandum October 4, 1978, from Lhe Department of CommunityDevelopment "ReaI Estate Offices do not contribute directJ.y to sales taxrevenues and do not need a street level location to be successfur.,,
of the 17 real estate companies in Vail and Lionshead, there are two"TimberLine" and "Garton", which hare a second floor location thathave been i.n business for more than one vear.
The following companies contribute directly
Home Management:
Arthur G. Bishop & Co.Vail Home Management, formerly Slifer & Co.Gore Range Prope r t ies
Bradway Real EstateVail Management (new as of 1978)Mike Pal-mer Real Estate
to Sales Tax Revenue throuqh
Floor: lst
'I qf
lstlst
2nd
t -!t-b L
METIORANDUM
TO:
r.ROM:
DATE:
RE:
PLANNING & ENVIRONMENTAL COIIIdISSION
DEPARTMENT OF COMMUNITY DEVEI-OPMENT
ocToBER 4, 1978
CONDITIONAL USE PERMIT FOR BRANDESS-CADMUS
REAL ESTATE, INC.
Brandess-Cadmus Real Estate, fnc., has requested a
conditional use Permit to al1ow tbe operation of a Real Estate
office on a part of Lots B and C, Block S-C Vail Village 1st
Filing (adjaceut to Kentucky lrled chicken). This is in a cc1
Zone District.
CRITERIA AND T'INDINGS
upon review of section 18.600, the Department of communityDevelopment recommends disapproval of the conditional usePermit based upon the fo1low1ng fa.ctors:
Consideration of Factors:
Relationship and impact of the use on developmentobjectives of the Town.
Real Estate offices as well as other professionar offices
require a conditional use permlt to be located on the first floor
or street 1evel in both ccl and cc2 zone Districts. The intent of
this section of the zoning ordinance was to reserve street level
space for pri.marily retail and restaurant uses. These uses eontribute
directly to the sales Tax revenues of the Town and generally need a
street leve1 location to be successful .
There is a
the Village and
Condltional Use
very limited
in Lionshead
Permlt wl 11
amount of street level space in both
Core areas, and we feel that granting this
Iead to other slmilar requests. Thls
q u{.. "."i*td. r'.*l,n..!-..l) lisFyq-r:[".(tr.*.4u,g{:tt6B{rFf r*of . nfi9r.,!:.}.; {{trx!.rs.}..rr!r{lsx}wr+.;l*r-_6Fffi.ffiryryr:.mfl:Jm1ry.f.+tr".l+..}r+.rtrfi..1a.'t"<}ifl*..rr{.!"F
Memora.ndum - Brandess-Cad.mus
Page 2 P.E"C. tO/4/1978
eould severry reduce the amount of prime retail space ln the
Town of ValI.
The effect of the use on ligbt and air, =
distrlbution of population, transportatlonfacilities, utiliti.es, schools, parks andrecreation facilities, and other publicfacilities and public facilities needs.
We foresee no adverse impacts on these factors.
Effect upou traffis with particular reference rocongestion, automotive and pedestrian safety andconvenience, traffic flow and. control , access,maneuverability, and removal of snow from thestreet and parking area.s.
We forsee no adverse .impacts on these facrors.
Effect upon the charaeter of, the area in whichthe proposed use is to be located, including thescale and bulk of the proposed use in relati.onto surrounding uses.
'rcommercial core 1 District is intended to provide sltes and to
maintain the unique character of the vail virlage commercial
area' with its mixture of lodges and comrnercial establisbments in
a predominately pedestrian environment." (l*g,24.010). Real Estate
offlce usage of a ccr street-revel locatlon is nei"ther in keeplng
with the purpose of ccl zoning nor the character of the vail virrage
area to which this zonlng applies - pedestrian-accessed over-the-counter
retail, eating, and drinking establishments, and lodges.
Findings and Recommendations
Tbe Department of Comrnunity Eevelopment recomneud.s ,+.that the conditionar use pernit be denied based on thefollowing findings:
That the proposed locatlon of the use is not inaecord with the purpose of this ordinance andthe purposes of the district in which the siteis located"
Tbe Department of Communlty Development recommende denial of this
Meruorandum - Brandess*Cadmus
Page 3 p.E.c. 10/4178
negative precedent
add.itional prime retall
application. We
that coul_d lead
spaee.
feel that it wilL set a
to the future removal of
VAIL TOWN COUNCIL
WORK SESSTON
3 OCT'oBER 1978
Item 13: Discussion of conversion of shop space to real estateoffices in CCI and CCII.
GERSTENBERGER: What happened - the planning Conmission heard
a conditional use request in Lionshead to put in a real
estdte office down there, and it was deniect by the plan-
ning Commission by a whopping 2 to 2 vote. We will be
hearing another one for the one in the Village - Brandess
Real Estate. We messed up. They understand that we
screwed up; they have to go through the procedure. If
they're Lurned down, they have Lo get out.
SLIFER: There're going to be others coming - the Alaska Shop...
DONOVAN: Ho\,r about Vail Associates and how about Canadats? Did
they go through the process?
GERSTENBERGER: yeah, they did.
HOPMAN: After the fact.
GERS:rENBERGER: yeah. We1l, VA didnrt. Canada's did.
HOPMAN: Canada's did because when they came to us they were in
the shop - when they came before us on the plannincr
Commiss ion .
And was it approved?
It was approved. I remember that particular one. Even
the Lionshead people were so pleased to see th.at happen
because the space was so badly taken care of, They
didnrt really care what went in there - just to improve
the visual impact, I think essentially though'there are
some definite implications.
I think it might be appropriate if the Council has strong
feelings one way or another that we teIl At1en, and then
he can pass our feelings on to the planning Commission.
Don't we have control of that by conditional use permits?
GERSTRNBIRGER: Yeah, right. They can't be on the first floor.
Thcy have to come in and be considered on a case-by-case
basis.
SLIF'ER:
HOP}4AN:
SLIFER I
HOPMAN:
.urrng is that if thatrs a real strong j.ssuc
I think everybody. agrces, if I understand
I don t t want to put words in your mouths. . .
all feel very strongly {and I'm in the
SLTFER:
DONOVAN:
SLIFER:
DONOVAN:
But all Irm
with us, and
you right...
I think you
business) ...
You're a little bit suspect... (Iaughing) . .
But arentt you all concerned about these two offices...?
Yes, but f'm also concerned about equal treatment. When
does one more rcaL estate office, when does a 300 square
foot real estate office for Benchmark vs. what VA did
vs. what Canadars did...I'm just talking from the Bench_
mark side (when the guy rings my eat: out). He was told
by the Planning Commission members Mills and White who
voted against him that if he was up in the Core they'd
have no problem. Well, goddamrnit, I'd have i. problem.
t have a problem with the two that are there alreadv,
Slifer and Brandess.
JAY PETERSON: That's not what they said.
DoNovAN: well, maybe thatrs not what they said. what did they
s ay?
PBTERSON: Welli they had a problem r+ith it.
DoNovAN: They didn'L say anything about commercial core r?
PETBRSON: No' as a mat.ter of fact, r think they said the opposite
of that. I think they had a problem \^ilth it going into
Commercial Core I.
IIOPMAN: conmercial core r - where they d-i-dnrt in Lionshead.
DONOVAN: They denied it in Lionshead.
PETERSON: They denied both of them, didn't they?
PALMATEER: No, t_hey havenrt seen the other one.
GERSTENBERGER: r don't remember their comment about they had no
problem in the Core. They did say - the people who
voted against it said we don't think that itrs in keep-
ing with generat.ing more traffic, and that's what Lions-
head needs. And so, therefore, we vote.against it. On
Vail Associates, they got it, I think, mainly because
they were really a firsL floor level - thcy were ground
:-' ' {i
level on one pl.acer and Lhey movea up io be'ground I'evel
i
on another. That one f can see. canadats probably was
bad because they were upstairs t-hen expanded down' and
they were grantecl under the theory that they expanded'
WILTO: They hlere on the first floor as well?
GERSTENBERGER: The theory was that they had expanded.so therefore
it wasnrL as bad as a new use.
PALMATEER: The problem is that you dontt have a half a dozen
clifferent businesses that you can choose from and say'
wel1, I'd like to see this kind of shop there' In the
case of Lionshead, Itm not saying Lhe Village - we are
using conditional ude in Lhe Village, right? But that
hasntt been approved for Lionshead, correct?
GERSTENBERGER: No, horizontal zoning
PALMAT;ER: Horizontal zoning, Yes. But that space is such a
disaster. I'd like to see something else there' But'
ifttratrealestaLeofficeisnltgoingtobethere,then
there aren't five other businesses that want to 90 in
there.
HOPMANI I think youtll win out though, because I donrt honestly
believe that any space in any principal area in this
town is going lo set vacant for that long'
PALMATEER: That has set there for two years, Scotty--"
HOPI"IAN: Yes, but not because of the reat estate thing; it's
because of the owner of the propcrty. i
PALMATEER: Yeah, but why isn't there sonebody else interested in
that space? I^lhy was it a real estate company that came
along?
PETERSON: Paula, maybe I can clear it up. Number one, it was
not storage; it v/as part of the ski shop' It's been
rentedbyGondotaSkiShop-theysoldthebusinessto
Charliers Gondola Ski shop, They've taken the space'
Tlre landlord now said r'11 break off 600 sq' ft.' or
400 so. fL. - used to be 6 - and rent it out' Hers had
tr tremendous interest in the space. I tried to rent
it for somcbody for att icc cream shop.
Da nr. d
DONOVAII ! Who's the Iand.lord?
PETERSON: Itrs Oscar Tang (?) now.
HOPMAN: Which is Salloway?
PETERSON: No. Sallowayrs out"
SLIFER: I know the issue...
DONOVAN: The issue is we donrt want real eseate...
s!r.t.'uR: No ' no, no. Let r s just say of f ices because there can be
other offices. Do we want the conversion of retail
space to officei in CCr and CCII?
GENERAL: No.
SLTFER: That, to me, is where the discussion ought to stop.
PALMATEER: But there already is space there.
HOPMAN: Well, then 1et's just say we stop it.
SLIFER: Okay, but you say right now do you want more? Thatrs
aL1 t'm asking you. Do you want to go backwards? you
canrt" youive got to go forwards,
HOPMAN: I say, from this point forward, my opinion is no.
SLTFER: rf you rvant" to consider each one, then wer11 telr them
that. Or if you want to say I don't care about conver-
sion, or you want to talk abouL each conversion, we
can tlll them that..
wrlTo: r think our generar poricy shourd be that r./e are not in
favor of it. It?s that simple. Werve always had a few _
wetve always had Bryon Brown and your office. ,
DoNovAN: Maybe they should be rike signs and be phased out too.
SLIFER: Maybe they should at some point.
DoNovAN: The only people who can afford to pay the rent anymore
are the real estate people.
SLIFER: Maybe not next year.
DoNovAN: That's right, dnd thatts whcn they beconre e:npty aqain.
Discussion t-urned to Eagre county planning commission and having
a staf f mernber attend meetings on a regiul_ar bas j,s. No further
discr.rssion rcq;rrding conversion of retail spaco to of fice space.
/sjm
a
{
MULLIGAN & REEVES, P.C.
November L4, I9?8 i
MEMORANDUM OF I.,AW
THE TINCONSTITUTIONALITY
OT THE
VAIL HORTZONTAL ZONING ORDINANCE
TABIJE OF CONTENTS
I. Unconstitutional As written
A. as unrelated to police poroit
B. as an invalid delegation
C. as contrary to the enabling statute
II. Unconstitutional As Applied
A. as violative of due process
B. as violative of equal protection
J'
UNCONSTITUTIONAL AS WRITTEN
A. As Unrelated to the police power.
Zcning ordinances, by their very nature, impinge upon
landownerst common law right to the unrestricted use of
their property. As this property right is still uniformly
recognized, the municipal incursion upon it must be based
upon some greater good. Zoning ordinances are conmonly
justified by the police power. The ordinance is said to be
nece66ary to protect the health, safety, morals or welfare
of the people.
Within the context of this police power justificatioh,
there are generqll_y two categories of circumst.ances wherel
g4 ordinalce violat tio4al protections: l) if
lied; 2') if the
ordinaqce is unrelated to the ses of the police
from which it draws its justificat.ion, the ordjn-nce is
an unreasonable rest-raint on property rights and is un_
"ot"titotiorul . rt i" thi" """ond .utegoqy of .ir.*-
slances which bases an objection to the constitutionar-it
A property owner is entitled to the unrestristed.
use of his property. This is not an absolute right, it ar[d
most rights must be subject to the necessities inherent
in a functioninE society. The inevitable conflict anong
rights of all peopJ-e in a community d.oea not lessen the
importance of the rights bf the property owner in the
the ordinance operates to d.eprive a landowner of anv and
all feasibl-e uses qf his proFertv, the ordinance is con-
flggglgly_and is unconstitutional as
of the Vail Hori?g4taL Zoning Ordinance.
eyes of the Colorado Supreme Court:
"without. reservaLion we are firm in our adherenceto the principte that the priviJ-ege of a citizento use his property according to his own will isnot onJ.y a liberty but a property right, subjectonly Lo such restraints as the common welfare nlayrequire." City and Countv of Denver v. Denver BuickInc-r 347 P"
The importance of the landownerre privilege to deLer-
mine how his property shalt be used requires that a muni-r
cipai-ity seeking to rimit that privilege have a logical and
rational interest in imposing the limitation. The zonins
ordinances can only be justified as an exercise of the
police po\^rer. Euclid v. A.nqbler Realty Z7Z VS. 365, 47 S.Ct
LLA, 7L L.Ed 303 (1926); Wright, v. City of LiltLeton, L74
Colo. 318, 483 p.2d 953 (1921); City and County of Denver v.
Denver Buick, fnc., supra. As a function of the police
power, the purpose of the ordinance must relate to the
health, Eafety, morals or waLfare of the peopLe. Euclid
-2-
v. Ambler Realty, supra; Village-_qf Belle,Terre v. Boraas,
416 u.s. 1, 94 s"ct 1536, 39 L.Ed.2d 7g7 t(Lgl4); Snyder v.
City of Lakewood, 542 p.2d 3?1 (1975).
"If a restrict.ion upon the use of property is tobe upheld as a valid exercise of the pofile powerit must bear a fair relation to the puUlic hlalLh,safety, morals or walfare, and have I definitetendency to promote or protect the same. Thedetermination we are called upon to make is whe-ther the ordinance has a real and substantialrelation to the accomplishment of those objectiveswhich form the basis of potice regulation.i'City and County of Denver v. Denv6r Buick, Inc.supra.
The pronouncements of the colorad.o supreme court almost
suggest that the city has the burden of proof in court to
demonstrate the relationship of the ordinance to the porice
power. In an action involving a challenge to the zoning
ordinance itserf, this is clearty not the ca6e. Legisrative
enactments atre presumitlively valid, and zoning ordinances
are generally accorded this presumpLion of constitutionar LJ.
tutionality of the ordinancer but when determining if the
assailant has met that. burden, the courtsrmust either spec-
ifically re.late the ordinance to the poJ-ice power, or stri.ke
it down. City and County of Denver v. Denver Buick. Ine.,
supra. To make the determination that the ordinance either
does or does not relate to the police power, the courts use
a reasonabreness standard predicated upon the individual
circumstances of the case 'before them.
i
It is axiomatic that the courts do not sit, as a super
zoning authority, and do not pass upon the wisdom of the
zoning ordinanee- Ratherr the court seeks to determine if
the zoning ord.inance is plainly unreasonable as unc.nnected
to any purpose of the police power:
Baum v. Cit and Count of Qqnver, L47 CoIo. 104, 363 p.2d
688 (1s61) .
"A zoning ordinance, like other legislative enact-
Tgnls, is presumed to be valid, and one assailingit bears the burden of overcoming that presump-tion, and courts indulge every intenameit in favorof its vatidity.n Baum v. City and County of Denver,
eltYlrleql,rq.
The assailant has the burd.en of showinq the unconsti-
"Zoning ordinances or reg.ulations will not bedeclared unreasonable and arbitrary unless theyare.found to be plainly and pal-pabl.y so, or unlessit is shown that if the ordinance ii enforced theconseguent restrictj.ons will prbclude the use ofproperty for any purpose to which it is reasonabJ_yadapted. Accordingly, where the reasonableness oia zoning ordinance is tairty debatable, it must beupheld." gaqq v. City and Cou4ty of Denver,supra; quotr-ng from 101 e .@ seealso Euclid v. aqblgg-Beefly, supra.
The police power is available to the municipality to
protect the public safety, health, morals or welfare. The
instant vaiL Horizontal zoning ordinance is plainly unrerated
to the publi-c safety, health or morals. Therefore, if the
ordinance is to survive constitutionar challenge to the
povrrer of the municipality t,o enact it, it must bear a fair
relation to the pubJ.ic welfare.
-3-
The concept of the public r,relfare, as inLerpreled by
the Supreme Court of the United States is broader than
merely the sum of the public health, safety and moralg:
"The coneept. of the public welfare is broad and
inclusive The values it represents are
spiritual as well as physical, aesthetic as well
aE monetary. It is within the power of the leg-
islature to determine that the pommunity should be
beautiful as well as healthy, spacious as wel-l as
clean, wellbalanced as well as carefully patrolled."
Berman v. Parker, 348 U.S.26, 75 S.Ct 98, 99 L.Ed
r?-113sT',r,
The Fifth Circuit has had occasion to interpret the
attitude of the Supreme Court. The Court of Appeals, in
Maher v. City gf New Orleans, 516 F.2d 1051 (1975), relied
on Village o{ Be}1e Terre v. Boraas, supra, as authority for
the following proposition:
"It is generally accepted thaU legisl-ative bodies
are entrusted with the task of defining the public
interesb and purpose, and of enacting laws in
furtherance of the general g'ood. "
Then the Court of Appeals for the Fifth Circuit continued:
"The Supreme Court has made it clear that whilethe police power is not. unlimited, its boundariesare both ample and protean. Drawing on the rich
and flexible poJ-ice power, a J-egislature has theauthor-ity to respond to economic and cultural
developments cast in a different mold, and to
essay new solutions to new probl_ems. "
"Proper state purposes may encotnpass not only thegoal of abating undesirable conditions, but offostering ends the community deems worthy."
While the police power in support of the public welfare
is broad, the means chosen by the community to effect the
purposes must bear a reasonable relation to those Purposes.
v. Town
of Federal Heights, 543 P.2d 715 (l_975)r gf!X_s!q County of
Denver v. Denver Buick, Inc., supra.
VilLaqe of Bell_e Terre v. Boraas, supra; Mosgrove
The validity of the purpose does not save an ordj-nance
related to that purpose. In Cily and County of,Penver v.
Denver Buick Inc., 347 P.zd 919 (1960), an ordinance was
from constitutional challenqe if the ordinance is not
-4-
'o
found unconstitutional per se. The ordinance required
Property otrnerF to provide off-street parking facilit,ies as
a condition to allowing business use. The Court found the
requirement to be unreasonable - a taking of property under
the guise of zoning. Fourteen years later, in g!:cgg_\rj_
City of Aspen, 188 CoIo, I, 532 P.2d,720 (L974), the Colo-
rado Supreme Court had apparently become more used to re-
quired land use. The Court expressly overruled the absoluLe
posit.ion adopted in Denver Buick, Inc. Ordinances requiring
off-street parking are now presumptively valid, as are all
zoning ordinances, and are individualty subjected to consti-
tutional analysis as the ordinances come before Lhe Court
for review. The changed position that thl Court adopted in
Stroud iLlustrates that regulations that appear unreasonable
to the Court can, in time, appear debatable. However, Lhe
anal-ysis remains the same: if the ordinance is not rea-
sonably related to a proper purpose under the police power,
the ordinance is unconstitutional .
The prevention of competition, by itself, is not, a
proper exercise of the police power. fn goldy v. Gerber,
377 P.2d 111 {L962), although a valid purpose under the
police power was offered as justification, the municipal
action bore no relation to that purpose and was t,hus un-
constitut,ional . The case involved the review of a denial of
an application for a charter to do busj-ness as an industrial
bank. The banking business is subject to regulation under
the police powers of the staLe. Like the denial- of the
conditional use permit, the denial of a charter served to
prohibit citizens from conducting a legitimate business.
The denial was purportedty justified by the purpose of
protecting depositors and other creditors who would deal
with the bank. Even though this purpose was well within the
-5-
police power, the court determined that the denial of this
charter application bore no relation to the stated purpose,
The court, in reviewing the denial , found nothing in the
evidence to show that anyone could be hurt but the com-
petitors. The court commented:
"To grrevent one from engaging in a l-awful businessit is necessary that. there Ue proof and findingsof failure to comply with the statutes or that adetriment to the public healt.h, morals or welfarewould follow issuance of the license."
The court did not guestion that the enunciated purpose was
within the police powers. Instead, the court looked past
the form, and found that in gubstance, the governmental
action bore no relation to the enunciated purpose, and no
reLation to t,he police power. The governmental action was
therefore unconstitutional .
The concept of public welfare, we have seen, is con-
strued very broadly. fn 1974, The United States Supreme
Court made it clear that a rnunicipality coutd. zone to regu-
late the environment. A municipality coul_d do more than
el-iminate slums which obviously threatened the health,
safety and morals of the people. A municipality could zone
for a model corununity for such a community could uplift the
human qondition:
"The police power is not confined to eliminationof filth, stench and unhealthy places. It is ampleto 1ay out zones \nrhere family values and theblessings of quiet secl-usion and clean air makethe area a sanctuary for people.'t Village ofBel1e Terre v. Boraas I gupra.
Zoning to create and preserve a community charaqter
appears an accepted exercise of the police power. The
applicable inquiry, then, becomes whether the means selected
by the ordinance are appropriate, In Vii-lage of BeLle
Terre Jr. Boraas, supra, the zoning ordinance was for a
single*family occupancy. The court found a reasonable
relation in the communityrs effort to keep students from a
-6-
nearby coll-ege from renting houses en masse, and upheld the
ordinance.
In Boafd of Ccuhty CommissioLers of the County o!
Jeffersoq v. Moun!ein_4]! R'4qqb, 563 p.2d 341 (1972), the
eourt upheld the application of an ordinance which pro-
hibited trailers and mobile homes. On appeal-, it was argued
thal the County had failed to show a hazard to the public
heaLt,h, safetyl moraLs or welfare. The sour! responded that
the burden the attackers of the ordinance, and that the
attackers had failed to demonstrate that the ordinance does
not foster l-egitimate governmental purposes. Implicitly,
the court found that the purpose of the appearance of the
cornmunity was within the police powers, and the ordinance
was retionally connected to the effectuation of this purpose.
The character of the community is served by the require-
ment of fences around multi-famiry dwerlings. The cotorado
Supreme Court found a reasonabte relation between this
purpose and the fences by reasoning that tit-ter ancl trespass
are acute problems around apartment complexes. The alle-
viation of this problern adds to the character of the commun-
ity and makes the zoning ordinance reasonable. Mosgrove
v. Town of Federal Height.s, 543 p.Zd 715 (19?5).
The character of the community typically justifies
zoning restriction reg,arding the density of buildings and
population within an area. It has just.ified restrLctions
regarding noise and traffic congestion. It has even justi-
fied preservation of an area in view of national historic
significance.
L05t (5th Cir. , l-975) which dealt with the'preservation of
the French Quarter.
The municipal code of the Toqrn of VaiI specifies the
following general and specific purposes for its zoning
ordinance:
"18. 02. 020 Furpose.
A. These ."n,rr.*ions are enacted for Lhe purpose
of promoting the health, safetyi morals, andgeneral welfare of the Lown, and to promote the
coordinated and harrnonious devel-opment of the
town in a manner that will conserve and enhanceits natural environment and it; established
character as a resort and residential communityof high quality.
B. Theee regulations are intended to achievethe following more specific purposes:
l. To provide for adequate liEht, air,sanitation, drainage, and public facilities;
2" To secure safety from fire, panic, flood,
avalanche, accumulation of snow, and other
dangerous conditions;
3. To promote safe and efficient pedes-
trian and vehicular traffic circul-ation
and t,o l-essen congestion in the streets i
4. To promote adequate and appropriately
located off-street parking and loading
f acil-ities;
5. To conserve and maint,ain established
community qualities and economic val-uesi
6. To encourage a harmonious, convenient,
workable rel-at,ionship among land uses, con-sistent with municipal development objective.si
7. To prevent excessive populat.ion densities
and overcrowd.ing of the land with structuresi
B. To safeguard and enhance the appearanceof the town;
9. To conserve and protect wildlife, streams,
woods, hillsides, and other desirable natural
features;
10. To assure adequate open spacer recreationopportunities, and other amenities and iacilities
conducive to desired living qualities;
11, To otherwi-se provide for the growth of an
orderJ-y and viabLe community.(ord. 8 (I973) 51.I00. )',
Based upon the above discussion detailing permissable pur-
poses for the imposition of police po\^/ers in the zoning
area, the Vail Ordinance seems to fall within acceptable
limits of the general welfare rubric. The particular "wel--
fare" being to preserve community charact,er. Having reached
that position however, we must still determine if the res-
trictions imposed advance that purpose.
-8-
In the preceding discussion, we have, examples of t,he
preservation of community character by: restriction of
density; prohibition of mobile homes for appearance sake;
reguiring fences to combat lit,ter and trespass; and, res-
trictions regarding noise and traffic congestion at sights
of national histori.c significance.
With these reference points, the Vail Ardinance fails,
particularly with respect to its horizontal zoning distinc-
tions. It clearly does not rel"ate to densityf appearanse,
heaLth or safety or noise and traffic congestion. Aside
from these external comparisions it is guite difficult to
see any reasonable relationship int,ernal to the ordinanee
between the stated purposes of the Ord.inance and these
controls. In fact there appears to be vigtually no rela-
tionship between the horizontal rimitatione and the ordin-
ancest eleven (11) enumerated purposes, The single purpose
which might argueabl-y relate is the fifth specific purpose
which references economic value. However, to rely on that
rel-ationship would, of course, return us to the proposition
explained above in Gold.y v. Gerber, 377 p.2d 111 (1962r,
thaL the prevention of the competition by itself is not a
proper excercise of police power.
rn sumnary' horizontar zoning as authorized in the Vail
Municipal- code does not reasonably rerate to the communityts
general welfare through the creation or preservation of the
character of the municipality. This zoning by revel does not,
affect density, does not aLter traffic patterns, and does
not affect the natural environment of the municipality.
This t'ype of zoning adds distinctions without justiflcation.
As regulalion wit-hout a justifiable relationship to a consti-
tutional purpose, the vail Horizontal- zoning is unconst,itutional .
-9-
B. As an Invalid Delegation.
The Vail Ordinance which regulates the procedures by
which the condj.tional use permit is either granted or denied
purports to enact legislative standards by which an application
is to be judged. Ordinance number 18.60.060, entj_tl_ed
Criterl-a - Findings, 15-sts four criteria which the planning
Cornrnission is charged with considering when presented with
an application for a conditionaL use perrnit. Hotrever, the
Ordinance adds a fifth criterion whi.ch read.s: "Such other
factors and criteria as the commission deems applicable to
the proposed use." The slear irnport of this provision is
for any reason that the Conmission deems applicable to
the proposed use_.
Due process requires legislative standards by which
agencies can be guided in enforcing the law. The basic
dichotomy is between creating the 1aw and. enforcing the law.
"The true distinction ... is between the dele-gation of power to make the J-aw, whish necessarJ.lyinvolves a discretion as to what it shaLl be, and,conferring authority or discretion as to its /execution, to be exercised. under and in pursuanceof the law." Fietd v: Clark, I43 U.S. 649t !2s,ct. 4es, 35 fEA-23?-lrB9"2); and quoted inSwisher v.Brown, 157 Colo. 328, 402 p.2d 621
The modern trend is to permj_t liberal grants
If the broad guidelines are set, the agency
of discretion.
may fill in the
details. Llclyd A.Roofinq Co. v. State Dept. of Health,
499 B.zd Lr76 (L972r. yet there mugt be some standards hrith
objective meanings set by the legislature. Feoplel.. RorMar,
559 P.2d 710 (Colo., ]-977r. Otherwise the agency has the
power to create the law itself.
The instant Ordinance purports to set out broad guide-
lines, but in adding an open-ended authorization to consider
anything the Commission feels is applicable, the Ordinance
that, the Commission is red to reiect an applicati-on
-10-
confers untimitsd discretion. standards may be general , but
when st.andards leave determi.nation of violation Bo far
within the control of the administrative agency as to
provide no guidance at all, the enactment, is unconstitu-
tlonal . Prouty v. Heron I L27 Co1o. 168n p.2d 755 (1953).
The Commission, having the power to consiber anything t.hat
it feels is applicabl-e, has the power to make law.
The Colorado Supreme Court has had occasion to in_
validate a zoning procedure because the zoni.ng authority was
permitted to make zoning decisions without proper guid.elines:
"On the face of the amended resolution it in-stantly appears that the County Commissioners andthe.Board_of.Adjustment. witnolt any set of slan_dards or limitations, are permitted to act ac_cord,ing to their particulai fikir.g or no reason atal"L. ft vrould be difficult to fina a more directgrant of arbitrary discretion and unlimitea pclweithan is here vested, ...,, generaf outdoor Adver_
Although
the final
standards
reason, or
vested in
9*Filg co. v. coodman, Lzs eafa=aft6Z=F;tr267
the Vail Ordinance,does purport to 6et out standards,
complete grant of discretion makes the other
meaningless since the Commission can deny for any
ror no reason at all. The uncontrolled discretion
the Commission renders the Vail. Ordinance subiect
tc t'he same. constit-qtional defect the attempted dej.ecration
that the Colorado Su Court invalidated in Goodman, above.
The governing body of each municipality is specifically
empowered by stat,e statute to enact, certain types of zoning
regulation. Since it is the state police power which justi_
fies zoning ordin,ances, and since the stat.e has chosen to
specify how the police power is to be appLied, munj-cipali-
ties are, by implication precluded from enacting zoning
measures which are not approv.ed by state statute. The
municipalities may only enact such zoning as the state has
authorized. The zoning measures in .the statutory zoning
Statute.
- 11-
grant of povrer, C.R,S. '73, 531-23-301-, are exclusive.
Nopro v. Village of Cherry Hil-l_s, 180 CoIo, 2L7. 504 P.2d.
344 (L972).
The state has authorized zoning restrict.ions as follows:
"31-23-301. crant of power. (I) Except as other-wise provided in section 34-L-305, C.R"S. 1973,for the purpose of promoting health, safety,
morals or the general walfare of the conununity,the governing body of each municJ.pality is em-powered to regulate and restrict, the height,
number of stories, and size of buildings and otherstructures, the percentage of lot that may beoccupied, the size of yard.s, courts, and otheropen spaces, the density of population, and thelocation and. use of buildingsf structures, andIand for trade, industry, residence, or otherpurposes. ..."
The proper subjects of zoning regul_ation according to this
statute are the restrictions which, as discussed in Section
f 4., above, bear a relat.ion Lo t.he protection of the public
health, safety, morals and welfare. the municipality.can
regulate the size of builclings, the size of open apaces, the
density of buildings and population, and the use of build-
ings for different purposes. There is no indication within
this statute that the municipality can divide individual
buildings by floor and allow different uses depending upon
what floor is being considered, Since this type of zoning
is not specifically granted this statute, it is prchibited.
This statute lists the exclusive types of zoning permitted
in Colorado.
Vailrs horizontal zoning scheme is also prohibited by
c.R.s.,73, s31-23-302:
"31-23-302. Districts. For any of the purposes
enumerated in section 3t-23-301 the governing bodymay divide the municipality into districts oi soc-hnumber, shape and area as may be deemed bestsuited to carry out the purposes of this part 3,and within such districts it may regulate andrestrict the erection, construction, reconstruction,alteration, repair, or use of building:s, struc-tures, or land. All such regulations shall beuniform for each class or kind of buildings through--oul each district. but the requlations in onedisLrict may differ from those in other districts.r'
-L2-
This section requires that all regulations be uniform for
each kind of building throughout a district. The Vail
zoning scheme is by nature different within a kind of build-
ing. The section contempJ-ates that each building will be
treated as an indivisible whole. The uniformity required in
the treatment of buildings throughout a district is also
required within one building. To insist otherwise is to
force a strained construction upon the concept of uniformity.
The Vail horizontal zoning scheme is unconstitutionat
in that it is at odds with at least two sections of Lhe
enabling statute.
rr.
UNCONSTITUTIONAT AS APPLIED
A. Ae Violative of Due Process.
A landowner is entitled to the unrestricted use of his
land absent overrj.ding governmental_ interest such as the
effectuation of the purposes under the police povrer. See
Section I A., 6upra. A restriction of the use of his pro-
perty which cannot be sustained by the police power is a
t.aking of property without due process of law, and is pro-
hibited by the Colorado and Federal Constitutions.
Normally, a zoning restriction on the use of property
is presumptively valid as a legislatj-ve enactment,. The
burden of proof rests with the assailant. However, normally
zoning restnictions involve prohibited usds. The burden of
proof must change where the zoning ordinance invol-ves a
permitted use.
The condit,ional use permit is generally used to all-ow
zoning fJ-exibility. By nature, it is a special breed of
regulation:
". . . Some zoning laws or ord.j"nances use the term'conditional use permit.' r'epecial exceptionpermit', or rspecial use permit.t to refer to(administratj.ve permission which allows a property
-13 -
owner to put his property to a use which theregulations expressJ-y permit under condit.ionsspecified in the zoning reguj-ationc themselves. ) . . .But regardless of which of the foregoing terms is
used, the nature of the administrative permission
and of the use permitted is, viewed broadly andsubstantiveJ"y, the same, since each involves a usewhich is permitted rather than proscribed by thezoning regulations." 82 Am .Tur 2d, Zoning 5281.See Durocher v. Kjqg Qounty, 80 Wash 2d 139, 492
The conditional use permit provides a permitted use in the
zoning reguJ-ations. Since the municipal tegislature has
seen fit to a1low the use, subjecL to compliance with con-
ditions or circumstances. if the conditions or ci.rcumstances
are satiefied, the Commission has no power to deny the
permit. Even further, it is also open to queslion as to
whether the term "conditional,' refers to the right to review
and issue or to the agreement by the petitioner to abide by
certain specified conditions to his uee of the property.
MacGibbon v. Board of Appeals, 356 Mass 635, 255 NE 2d 347;
Manning v. A.A"B" Corp., 223 Ga. 1ll, 153rSE 2d 561.
The landol.rner has the right to use his property as he
wishes. The municipar legisrature has permitt.ed. the use in
question. rf the landownerts rights are to be restricted,
it will be the result of findings made by the legislaturers
delegee. Determinations made by the commission which deprive
the landowner of a lawful use of his land, which lawfur use
was permitted by the municipal legisl-ature, must be proved.
Unlike the situation which arises in the usual zoning
challenges, the presumption of validity accorded 1egislative
'enactments i-n t,hi-s instance favors the land.owner and places
the burden of proof on the Town. The use is permitted. by the
legislation, The presunption of validity operates to author-
ize the use consistent with police power objectives. After
this legislative determi-nation, if the use is to be d.enied,
in derrogation of the randowner's property rights. it, is the
-14 -
town which must overcome the presumption and show
this case the permitted use would jeopardize the
that in
health,
safety, morals or welfare of the people.
Since the town has the burden of proof, if the town
denies the application, and fails to prove that the appli-
cant has failed to satisfy the conditions or circumstances
prescribed by the Ordinancer the town has unreasonably and
arbitrarily restricted the operation of a lawful business,
In the instant case, not only has no proof been offered by
the town, but no consistent expLanation of any sort has been
offered for rejection. On the contrary, the applicant has
been charged with proving extraord.inary reasons for an
"exception. " Such a restriction is a violation of the due
process clauses of the !'edera] and Colorado Constitutions.
The equal protection requirements of the Federal Con-
stitution, as well as the dictaLes of the CoLorado enabling
statute, require thaL zoning restrictione be uniform within
a district. The conditional use permitE see]< to ensure
flexibility and would alLow discretion to adjust zoning
restrictions for particular uses as the general d.evelopnent
of a district demands" However, fLexibility without reasonable
justification is pure arbitrariness. Arbi.trary adjustments
are unconstitutional .
Equa1 proteceion hinges upon the impermj_ssibility of a
classification. courts generally have little trouble in
deferring to legislative wisdom regarding classifications
made within the zoning ordinance itself. See Villaqe of
Be11e Teqre v. Boraas, supra, and Rademan v. City and Count
of Denver, J-B6 Colo. 250, 526 p.Zd 1325 (1974), regard,ing
zoning for single-family occupancy. See Mosgrove lr. Town
of Federar Heights' supra, for classifications involving
-15-
mulLi-family dwelJ.ings. The Courts are more willinq ro
examine the classification when one person is denied
The lack of uniform application of the Vail ordinance
is amply reflected by the townrs actions with respect to
conditional use permits. The result of three comparisons
with the i-nstant case shows crearJ"y the presence of arbi-
trary judgments where one is denied a right generally per-
mitted. In September of Lg76, a cond.itional use permit was
issued for the operation of a barber shop in the central
core area because ,'a building permit was inadvertantly
issued and remodeling completed before the applicant was
informed of the need for a conditional use permit.,, Later,
on March 10, 1978, the planning commj-ssion found that a
conditional use permit should be issued to Vair Associat.es
because "a rear estate sares office could create somewhat
more activity than ticket office. " (Although simply looking
at the numbers involvedr seem to make that determination
guestionable.) And as rate as July, LgTg, rcanadars of cororado,
Ltd. r was allowed a conditional use permi! to continue the
operation of a rear estate office in a central core area on
the first floor.
Here we have a use which was undertaken after rea_
sonable inquiry and approval of a business license, ind.i_
cating compliance with appropriate zoning by the town in a
fashion similar to the barber shop incident of some two
years ago. we also have a use which has been crit,iqized as
reducing pedestrian traffic when less than six monlhs ago an
identicaL use was seen by the town to generate more traffic
than the sare of ski tickets. we also have a use that the
town finds "not in accord with the purpose of this ord.inance
and the purposes of the District in which the sight is
located", despite the fact that on ,IuIy 7, Lglg, less than
right, !o do that which is senerali
-16 -
r
troo months ago, the to\nrn found that an identical_ use was in
"accord with the purposes of this ordinance and. the purposes
of the Distriet in which the sight was Localedr" in appro-
ving a conditionar- use permit for canada's of cororado, T,td.
Goldy v. Gerger, supra, invol_ved the clenj.al of a bank
charter- The community allowed banksr but distinguished
this applicant. The court found no evidence that the grant-
ing of the applicatj-on would hurt anyone but competitors,
and ordered the granting of the application. To prevent one
from engaging in a lawful business where there is no general
proscription, there must be proof and findings that a detri-
ment to the public health, morals or welfare would follow
the issuance of t.he license.
fn this instance there is no proof that the public
healthr safety, morals or general wel"farerwould. suffer when
the appl.ication is granted. As in Ggldy., the only ones who
might suffer would be the competitors, and as in Goldy,
there ie no reaaon given for denial of the conditionar use
permit. There are in fact, several_ such operations which
have been permj-tted within the district. To d.ist,inguish
betleen those operations and the instant appricant can only
be arbitrary as there is no reasonabre basis for the crassi-
fication. A denial of t,he conditional use permit would fL ",unconstitutionar denial 0f egual protection of the raws.
-I7 -