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HomeMy WebLinkAboutDRB130191 Appeal Nature of Appeal1� H Ln HOLLAND &HART, June 21, 2013 George Ruther Director of Community Development 75 South Frontage Road Vail, CO 81657 CC: Kendra L. Carberry, Esq. Hayes, Phillips, Hoffmann & Carberry, P.C. 1530 16th Street, Suite 200 Denver, CO 80202 Matt Mire, Esq. 75 South Frontage Road Vail, CO 81657 NATURE OF APPEAL Christopher H. Toll, P.C. Phone 303 -290 -1637 Fax 303-975 -5300 Coll @hollandhart.com fl JUN 2 5 2013 TOWN OF VAIL For the following reasons, Appellants R. Glenn Hilliard, Debora Webster, Sam and Luleta Maslak, Landon Hilliard, Olson Family 2012 Trust, Richard and Celeste Callahan, 1835 Sunburst Drive LLC, and Starfire Company, through their attorneys, Holland & Hart LLP, appeal the Design Review Board's ( "DRB ") June 19, 2013, approval of the Vail Recreation District's application to reconfigure the 18th hole on the Vail Golf Course, which includes converting the western part of the 18th fairway into an event area, relocating the 18th green to an area adjacent to residences not previously affected by a finishing hole, relocating the 18th tee location, and altering the Vail Golf Course design plan: The Application Is Connected to the Town's Clubhouse Plans It is important to note that the VRD's application to move the 18th green is directly connected to the Town of Vail's plan to convert the Vail Golf Course clubhouse and part of the current 18th fairway into an events center. The movement of the 18th green and the reconfiguration of the clubhouse and 18th fairway are part and parcel to the same overall plan, and the movement of the 18th green and abandonment of the western part of the 18th fairway would not be happening if not for the clubhouse renovation. Likewise, the VRD would not be trying to move the 18th green if not for the Town's plans to change and redevelop the clubhouse and 18th fairway and current 18th green for weddings and other events disruptive to the neighborhood and the golfing community. Holland & Hart LLP Attorneys at Law Phone (303)290 -1600 Fax (303)290 -1606 www.hollandhart.com 6380 S. Fiddlers Green Circle Suite 500 Greenwood Village, CO 80111 Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt take City Santa Fe Washington, D.C. HOLLAND & HART. Nature of Appeal N c:> U T Al �7 S T June 21, 2013 Page 2 The Design Review Board Refused to Recognize and Exercise Its Responsibility Under the Vail Municipal Code The DRB explicitly declined to review the VRD's application as required by the Vail Municipal Code. The DRB limited its review to the appearance of the proposed improvements, when the Vail Municipal Code actually requires a broader scope of examination. Specifically, the responsibility of the DRB extends to analyzing the relationship of any proposed improvements to the surrounding area and the impact of proposed improvements on the neighborhood and environment. Rather than meet its requirements under the Code, the DRB pretended as though this application occurred in a vacuum and was not tied to any larger plan. It therefore failed to meet its obligations under the Code. The Application Does Not Comply with the Vail Town Code & 12- 11 -1.D Vail Town Code § 12- 11 -1.D.4 provides that the DRB "shall .... "[e]nsure that the architectural design, location, configuration materials, colors, and overall treatment of built up and open spaces have been designed so that they relate harmoniously ... with surrounding development and with officially approved plans or guidelines, if any, for the areas in which the structures are proposed to be located." (emphasis added). Vail Town Code § 12- 11 -1.D.5 provides that the "objectives of design review shall be" to, among other things, "[p]rotect neighboring property owners and users by making sure that reasonable provision has been made for such matters as pedestrian and vehicular traffic, surface water drainage, sound and sight buffers, the preservation of light and air, and those aspects of design not adequately covered by other regulations which may have substantial effects on neighboring land uses." (emphasis added). The VRD's plans do not relate harmoniously with the surrounding Sunburst neighborhood and they fail to make "reasonable provision" for pedestrian and vehicular traffic, sound and sight buffers, the preservation of light and air, and those other aspects of design that will affect neighboring land uses. Because the neighbors' homes sit east and south of the clubhouse and directly adjacent to the part of the current 18th fairway that will be used for events, the VRD's current plans will maximize the nuisance to them and the rest of the neighborhood. The VRD intends to configure the new events center so that all banquets, events, and outdoor activities occur to the south and east of the clubhouse. Special events held in this area in the past have been disruptive to the neighborhood and have forced neighbors, including some of the homeowners, to call the police. Rather than develop a plan that would reduce the likelihood of such problems, the VRD has instead proposed plans that will increase them substantially, in number, physical scope, and proximity to the neighbors. As one community member explained recently, even during activities held currently at the clubhouse, people often wander onto her property, the noise is loud and disturbing, and the police do nothing to stop it. Moving the 18th green to allow for weddings on the current 18th fairway and in the outdoor space connected with the new clubhouse is a violation of the Vail Town Code. HOLLAND & HART.. Nature of Appeal HE: A�W c) �,7 wF June 21, 2013 Page 3 Specifically, the VRD's application violates the following aspects of Vail Town Code § 12- 11 -1.D: The VRD Application Does Not Make Reasonable Provision for Pedestrian and Vehicular Traffic Members of the Vail community and visitors to the valley routinely use Sunburst Drive for activities such as family walks, family bike rides, cycling, and other outings. If the golf course clubhouse becomes an events center with valet parking, shuttles, and numerous attendees (attendees will range upward from 160, with many more potentially attending on the fairway, in the golfer's grill, or on Sunburst Drive) trying to find their own parking along Sunburst Drive, many of those using Sunburst Drive will be put in danger. The road does not have the capacity to handle the increase in traffic the VRD proposes. This is especially true when, during the summer months, the events center will likely be in use a minimum of three nights every week. The VRD's movement of the 18th green will allow for intended uses that raise a number of issues, including safety concerns for pedestrians and cyclists along Sunburst Drive, the potential that fire and emergency personnel will not be able to access Sunburst Drive during large events, the VRD's inability to enforce crowd control methods, lack of on -site law enforcement, and the VRD's discretion to put up tents on the 18th fairway, which will inevitably lead to far more attendees than the Town's parking plan anticipates. Once the 18th green is moved, the Town intends to increase the parking lot capacity from 128 spaces to 158 through the use of a valet parking program. Such an increase will further deteriorate the quality of the golf course and thus the area immediately surrounding the Homeowners' homes. As a representative of the Town made clear at the January 14 PEC meeting, even now, when weddings and other events occur only 15 times a year, parking and traffic congestion are still problems when the slightest unforeseen wrinkle occurs. The VRD is now attempting to raise the number of events to somewhere between 65 and 1001 at the same time it is trying to increase the size of those events. It is irrational to think it can do so and avoid the traffic and parking problems it is already experiencing, even with a plan in place. The Town has proffered a number of parking plans, none of which has been viable. The latest, which the Town claims is feasible, only works by ignoring key realities and assuming perfect conditions. Even then it requires elaborate efforts, such as on -site valet parking, off -site valet parking, and shuttling. But because the Town's plan will stretch the property beyond its capacity, the reality is that any variable will throw the Town's parking plans into chaos. The slightest unexpected event will cause traffic, parking, and safety concerns all along Sunburst Drive. A neighborhood meeting, a group of cyclists looking to use Sunburst Drive, more golfers than expected, families hoping to park near the golf course for an evening stroll along 1 In its initial estimates, the VRD indicated that the events center would likely host close to 100 events per year. After resistance from the community, it revised that number to 65, but the initial estimates were likely more realistic. The VRD is hoping to build a premier wedding venue, and that space will attract users. HOLLAND & HART- � Nature of Appeal June 21, 2013 Page 4 Sunburst —any one would create a malaise of traffic, safety, and congestion concerns. The VRD is asking for approval of its application to move the 18th green and reconfigure the 18th fairway, so it and the Town can go forward with their plans to use the clubhouse as a revenue - generating commercial operation, but they assume that no other variable will ever occur. It is not a realistic assumption. In addition, the VRD's plans raise serious safety and congestion concerns. According to its and the Town's plans, events scheduled at the clubhouse may begin as early as 4 p.m. At that time, golfers will still be on the course and their cars in the parking lot, which will not have the capacity for both golfer vehicles and event attendee vehicles. The result will be individuals parking along the shoulder of Sunburst Drive, which creates hazards for emergency vehicles trying to access the neighborhood, as well as severe congestion for the residents and substantial risk to the bikers and runners who use Sunburst. The risks associated with the increased traffic congestion are too serious for the DRB to ignore and are sufficient reason not to approve the VRD's application. The VRD Application Does Not Make Reasonable Provision for Sound and Sight Buffers If the DRB allows the VRD to move the 18th green, the Town's and VRD's plans will create noise that will serve as a nuisance to all homeowners along the 18th fairway and current 18th green and in the adjoining townhomes. Indeed, the expansive use of the facility as a revenue - producing events center raises the following concerns regarding noise: 1. Orientation of activities. The Town's current proposals place activities in the one location that will maximize the noise nuisance to the homeowners. 2. Lack of effective control. The VRD has shown an inability to control the noise level of events held in the modest space already at the clubhouse, even when neighbors complain. If the VRD succeeds in creating an event center of the magnitude it is proposing, the impact on the neighborhood will be severe. When the windows and doors are opened, the building itself will act as an amphitheater, magnifying the volume of events held there. Music, crowd, and traffic noise will cause a diminution in value of the homeowners' homes. 3. Hours of operation. The VRD plans to allow music to continue at the new events center until midnight each night and activities may continue to 2:00 a.m. The attendees likely will not all leave until some time after that. Such late hours will prevent those in the neighborhood, including the homeowners, from experiencing any peace and quiet at a late evening hour, something many of the homeowners relied on having when they purchased their properties. 4. Loss of Use and Enjoyment of Property. Estimates suggest the center will host more than anywhere from 60 to 100 events per year, and the number could be substantially a HOLLAND &HART u Nature of Appeal June 21, 2013 Page 5 more than that. This will prevent the neighbors from enjoying their property at least three nights per week and potentially more. 5. Disturbances on Private Property. As many owners in the area made clear before the PEC, the impact of events does not stay within the confines of the golf course clubhouse. In the past, event attendees have created disturbances in the parking lot and on neighbors' property, something that will continue with the increased number of events and attendees. The VRD Application Does Not Make Reasonable Provision for Preservation of Light and Air Lighting associated with evening activities will be a nuisance to the neighborhood in several respects. Because lighting for outside activities will most likely be affixed to the building, it will shine toward the residences, creating a continuing glare. Any lighting sufficient to illuminate the outdoor banquet areas will almost certainly be bright enough to illuminate the adjoining properties as well. And because lighting will be necessary beyond the period when events occur, as people are leaving to their vehicles, it will be a problem well past midnight, resulting in an aggravated impact on the neighboring residences. The VRD Application Does Not Make Reasonable Provision for Affects on Neighboring Land Uses The VRD's plan most definitely will be materially injurious to the properties in the vicinity of the events center. Mike Nash, an appraiser with over 20 years of experience in Colorado and Eagle County, has stated that the VRD's plan, if approved, would "negatively impact values of existing homes on Sunburst Drive, thereby causing material injury to those homes." Mike Nash Opinion, attached, at ¶ 10. That economic injury alone should lead the DRB to deny the VRD's application, but there is also the injury the neighbors will suffer in the use and enjoyment of their property. On most summer nights, instead of the tranquility they enjoy now, those immediately adjacent to the clubhouse will face loud music, the din of mingling and partying guests, and the annoyance of attendees wandering onto their properties (something that already occurs with the smaller and fewer events the clubhouse currently hosts). Those throughout the neighborhood — including residents of the townhomes —will find their current use and enjoyment destroyed by the guttural sounds of shuttles passing in the afternoon and late at night, clogged roads, partiers in the parking lot or along the golf course, slower response times by first responders, and the noise that will inevitably arise as attendees (many of whom will have been drinking) shuffle back to their cars or shuttles as late as 2 A.M. The Sunburst Neighborhood was not built for this kind of operation. Those who developed it meant it to be a quiet, residential community lining a golf course, with narrow roads and almost no shoulders. See Jay Pulis Affidavit, attached as Exhibit B. Because they designed it that way, there is no way the VRD can move the 18th green and create a commercial enterprise HOLLAND & HART . Nature of Appeal June 21, 2013 Page 6 in the heart of it without risking safety and public health and without materially injuring properties in the vicinity. The VRD Application Does Not Relate Harmoniously with Neighboring Land Uses 1. Erratic Behavior and Lack of Law Enforcement. During past social gatherings at the clubhouse, which were much smaller than that which the VRD is proposing to host, the conduct of attendees has often been out of control, resulting in safety issues and disturbance to the neighbors and the neighborhood. And calls to law enforcement have been ineffective. Larger events designed to be outside will only increase such activity. 2. Tents. The moving of the 18th green allows the VRD and the Town of Vail to use the 18th fairway and the 18th green as a venue to raise large tents under which they can host affairs even larger than those contemplated for the events center itself. Such a use will only exacerbate the issues we have already raised, including noise, lighting, and unruly behavior, and will create opportunities for other nuisances and torts, such as trespasses onto the residential properties. The information the Town has circulated indicates that the Town will prohibit private parties from using tents but that the VRD may still use tents for special public events. Moreover, the VRD has not promised to prohibit the use of tents on the 18th fairway. The Town could also change its policy at any time to allow tents both within the zone covered by the CUP and outside it. 3. Reconfiguration of Driving Range Nets and Misuse of Public Funds. As part of its decision to move the 18th green, the VRD now must increase the height of the driving range nets, which will distract the homeowners, neighbors, golfers, tourists, motorists along I -70, bikers, and others attempting to enjoy the scenery. No valid reason exists for reconfiguring the driving range nets, especially if the VRD abandons its plan to move the 18th green. The movement of the green is what places golfers in danger. The VRD's current plan is forcing it to spend large sums of money to address safety concerns that would not exist if the VRD would simply change its current course of action. Indeed, one of the purposes of the DRB is "to protect the welfare of the community." Vail Town Code § 12- 11 -1.C. The VRD is not protecting the welfare of the community by spending hundreds of thousands of dollars to move the 18th green, then mitigating all of the safety concerns that move is causing. It is choosing to move the 18th green into a far more dangerous area than where it currently sits, which is forcing it to waste public funds to alleviate the risks it is causing. 4. Lack of Buffer to Protect Residences. Whatever activities occur at the current parking lot, the current clubhouse site, or at the current location of the 18th fairway and green, the impacts on the Homeowners and the neighborhood will be significant. There is simply no way to buffer the homeowners from the activities. At Donovan Pavilion, the nearest residence to the building is approximately twice the distance as is the nearest residence HOLLAND & HART . Nature of Appeal June 21, 2013 Page 7 on Sunburst Drive to the Vail Golf Course clubhouse. In addition, at Donovan, Gore Creek and a wide and dense growth of evergreen trees shield the nearby residences. If this project goes forward in any manner other than by simply creating a quality golf course clubhouse with no significant event facility, the neighborhood residences will experience substantial reduction in value and will require increased protection from both parking activities and event functions. 5. Uncertainty Regarding Zoning and Development Plans. Because of the broad options available under the zoning regulations, the VRD will have broad flexibility regarding how to use the clubhouse, the 18th green, and the 18th fairway. The uncertainty regarding how the VRD intends to use the property prevents the residents of the adjoining properties from the normal use of their residences, decreases the property and resale value of the golf course neighbors' homes and properties, and leaves open the possibility that the VRD will, at a later time, use the property for purposes other than those it now identifies. Conclusion In sum, the VRD's plan for the 18th green and fairway, which is inseparable from its and the Town's larger plan to convert the Vail Golf Course clubhouse into a wedding events center, it is not harmonious with the surrounding neighborhood, is harmful to neighboring properties, and is not consistent with neighboring development. On occasions in the past, the DRB has taken the position that its role is limited to design features. The Vail Municipal Code establishes that the responsibility of the DRB is more general. As pointed out initially, it is the responsibility of the DRB to halt any project whose "design, location ... and overall treatment of ... open spaces" fails to be harmonious with the surrounding neighborhood, harms neighboring properties, or is inconsistent with neighboring development. To protect the neighboring property owners and the welfare of the community, the Town Council must analyze the VRD's proposal based on the standards and criteria required by the Code and reverse the DRB decision. Respectfully, 04/4W Christopher H. Toll Steven T. Collis 6261598_1