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Home My WebLink AboutPEC130041 Variance Request!!! Williams Family Duplex Density Variance Location: 302 Mill Creek Circle Lot 7, Block 1, Vail Village 1st Filing Parcel: 2101-082-49-011 Date Submitted: December 16, 2013 Table of Contents ! Introduction and Request3 Background and Justiﬁcation4 Zoning Analysis6 Criteria for Review7 Conclusion9 Adjacent Properties10 Appendix A: Background and History11 ! Introduction and Request ! The Williams Family Trust I & Williams Family Trust II (collectively, the “Trusts”), represented by Mauriello Planning Group and Devlin Law Group, LLC, are requesting a density variance for the property located at 302 Mill Creek Circle / Lot 7, Block 1, Vail Village First Filing (Parcel: 2101-082-49-011). The property is zoned Two-Family Primary/Secondary Residential. However, the property is currently considered non-conforming with regard to density. Speciﬁcally, the property contains two dwelling units, while the number of units allowed on the property is limited to one single family dwelling based on changes to Vail’s zoning regulations amended over the past 40+ years. The variance request is to allow the property to be considered conforming and therefore treated as a 14,000 sq. ft. lot for zoning regulation purposes, which would permit two dwelling units on this property as currently exists today (as has since both units were constructed in 1963). ! The applicants are requesting a variance from the following section of the Vail Town Code: ! 12-6D-8: DENSITY CONTROL: A. Dwelling Units: Not more than a total of two (2) dwelling units shall be permitted on each site with only one dwelling unit permitted on existing lots less than fourteen thousand (14,000) square feet. !! Background and Justiﬁcation ! The Williams Family duplex was originally constructed in 1963. The property has been owned by the Williams Family since 1968, during which time two dwelling units have always existed on the site. The home was constructed as a duplex as was permitted under the original 1962 recorded covenants for Vail Village First Filing, which allowed all lots, including the subject lot, to be developed with a duplex. ! These 1962 covenants were especially important at the time, as the Town had not yet been incorporated, and Vail Associates and residential property owners in Vail Village First Filing relied upon the covenants to provide land use guidance. Vail Village First Filing was platted under Eagle County jurisdiction in 1962, as the Town of Vail was not incorporated until 1966. The Town ﬁrst adopted zoning regulations in 1969. (Please refer to Appendix A, which provides a detailed history of the evolution of Vail’s zoning regulations with respect to employee housing and the resultant impacts on the property.) ! For the next ten years, the zoning regulations applicable to the subject property permitted two dwelling units to be developed and occupied (and/or rented) by the applicant owners. However, in 1979, the Town of Vail revised the density requirements of the Two-Family Primary/Secondary Zone District, limiting the number of dwelling units on lots less than 15,000 sq. ft. to only one (1) unit and in effect taking away a development right that had existed since 1962. Currently, on lots less than 14,000 sq. ft., as is the subject property, a second dwelling unit is permitted, but only as a deed-restricted Type I EHU. ! As a result, the Williams Family duplex is now considered non-conforming by the Town with respect to density, since there are two legally established units on the property and neither is deed restricted for employee housing. Under the Town’s current P/S density regulations, no GRFA can be added to the property without the recording of a Type I Employee Housing Unit deed restriction, which would render one of the units unable to be occupied by the beneﬁciaries of the Trusts, as they are not currently full time Eagle County residents or employees. ! In 2000, the Town of Vail amended the minimum lot area required for two units on Two-Family Primary/ Secondary zoned lots, from 15,000 sq. ft. down to 14,000 sq. ft. At that time, there was discussion by then PEC about perhaps amending the non-conforming chapter of the Vail Town Code. However, recognizing that the issue of non-conforming uses was difﬁcult to comprehensively regulate, the Planning and Environmental Commission instead directed that lots under 14,000 sq. ft. with two existing dwelling units should apply for a density variance to seek relief from the requirement to deed restrict one of the units and add GRFA. The associated Community Development staff memo states: ! “The PEC gave staff the direction not to propose code changes to solve this ownership issue, but rather for staff and the PEC to recognize this ownership as a form of hardship for the purpose of considering density variances. This would allow GRFA expansions to these dwelling units without requiring that one dwelling unit be deed restricted as a Type I EHU. Staff will immediately implement this policy directive.” ! The applicant owners would like to be able to utilize the current P/S GRFA regulations just like their neighbors. Note that with the more recent amendments to GRFA regulations, the Town also removed the ability for non-conforming units (with regard to density) to utilize a “250 addition” in the P/S zone district. As a result, neither of the the applicants’ two units are able to add any GRFA without placing a deed restriction on one of the units. The applicant is therefore requesting that the subject property (Lot 7) be considered a conforming lot with respect to density control. ! Please refer to Appendix A of this submittal for a detailed history regarding the adoption of Vail’s zoning regulations with respect to employee housing deed restriction requirements on P/S lots less than 14,000 sq. ft.  Zoning Analysis ! Location: 302 Mill Creek Circle / Lot 7, Block 1, Vail Village 1st Filing Zoning: Two-Family Primary/Secondary Lot Size: 0.293 acres / 12,763 sq. ft. ! *Because the Williams Family Duplex is non-conforming with regards to density, no additional GRFA beyond what exists on-site today can be added to the property. ! Below we have provided a Zoning Analysis for the Williams Family duplex under three circumstances. The ﬁrst is the development potential of the site under the current regulations with NO EHU. The second is the development potential of the site under current regulations with ONE TYPE I EHU. The third is the development potential of the site under current regulations with the proposed variance. ! ! The analysis above is instructive, as it clearly demonstrates that there would be no negative impact to the subject property’s adjacent neighbors (or the neighborhood in general) if this variance request is approved. For example, whether a “local” person or a non-local person occupy the second dwelling unit on the property, the impacts (e.g., trafﬁc, bulk and mass) are relatively the same. In fact, in the above scenario with a Type I EHU, a proposed structure on the subject property could exceed the site coverage and GRFA allowed to be developed on the property by a conforming residential duplex without an EHU deed restriction. ! Zoning Regulation Allowed Existing Density 1 dwelling unit 2 dwelling units EHU 1 Type I EHU none GRFA 4,227 sq. ft.*4,227 sq. ft. Zoning Regulation NO EHU WITH TYPE I EHU WITH DENSITY VARIANCE Density 1 dwelling unit 1 dwelling unit plus 1 EHU 2 dwelling units GRFA 5,649 sq. ft.5,649 sq. ft. plus 550 sq. ft. for EHU = 6,199 sq. ft. 5,649 sq. ft. Garage Credit 600 sq. ft.1,200 sq. ft.1,200 sq. ft. Site Coverage 20% / 2,552 sq. ft.25% / 3,190 sq. ft.20% / 2,552 sq. ft. Landscape Area (min)60% / 7,658 sq. ft.55% / 7,019 sq. ft.60% / 7,658 sq. ft. Criteria for Review ! Section 12-17-6: CRITERIA AND FINDINGS, of the Vail Town Code provides the criteria for review for a variance. These criteria, along with an analysis, are provided below: ! 1.The relationship of the requested variance to other existing or potential uses and structures in the vicinity. ! Applicant Response: Because the standards of the Two-Family Primary/Secondary zone district, other than density, are applicable whether the development is a single family or duplex, there is little impact to other structures in the vicinity (other than a 600 sq. ft. garage allowance). As the Zoning Analysis above indicates, the development of one dwelling unit and a Type I EHU actually has greater impact on surrounding properties than would development with the proposed density variance. To summarize, one dwelling unit and a Type I EHU is permitted an additional 550 sq. ft. of GRFA, along with an additional 638 sq. ft. of site coverage and reduction of 638 sq. ft. of landscape area, over what would be allowed with the proposed density variance. As a result, the granting of this variance actually results in less development potential and therefore less impacts than the additional development potential granted with a Type I EHU. ! The surrounding properties, like the Williams Family Duplex, are zoned Two-Family Primary/ Secondary with similar development potential as the William Family Duplex according to their respective lot size. In Block 1 of this subdivision, there is a rather random pattern of lots allowed to be developed with duplexes and those which are non-conforming, which shows how indiscriminate the Town’s blanket application of the 1979 zoning change was on the neighborhood. !! 2.The degree to which relief from the strict or literal interpretation and enforcement of a speciﬁed regulation is necessary to achieve compatibility and uniformity of treatment among sites in the vicinity, or to attain the objectives of this title without grant of special privilege. ! Applicant Response: Similar variances have been granted in the past with similar (almost identical) circumstances. A summary of a few examples have been provided below: ! 1.Hans and Mia Vlaar Residence located at 2963 Bellﬂower: In this case, the Vlaars owned both halves of a duplex which was originally constructed in 1976. Upon purchasing the entire duplex in 1990, they wished to do an addition to the duplex, but did not want to deed restrict one of the units. As a result, they requested a density variance to allow them to add GRFA to each of the units, without deed restricting either one. Staff recommended approval and the Planning and Environmental Commission approved the density variance. The staff memo speciﬁcally stated: ! “Because the building was constructed as a two family residence prior to the Town’s regulations pertaining to lots less than 15,000 square feet, staff believes that it is reasonable to allow the structure to maintain its original development potential. The zoning established to restrict a secondary unit on a lot of less than 15,000 square feet was adopted after the structure was legally constructed and subdivided and creates a hardship for the property…” ! This statement of the staff’s opinion in 1990 and the subsequent approval of the variance by the PEC, clearly sets a precedent and policy for the review and approval of similar variance and is clearly instructive to the proposed variance. ! 2.Bryan and Sally Hobbs Residence located at 2129 Kel-Gar Lane: In this 1993 case, the Hobbs were proposing an addition to the west side of an existing duplex. This required a density variance because the property was non-conforming with regard to density (number of dwelling units) as the property was only 12,854 sq. ft. (nearly identical lot area to the subject property). Staff recommended approval of the density variance and Planning and Environmental Commission approved the variance. In this case, the staff memo states: ! “Staff believes that the history of this site makes it unique from other properties less than 15,000 sq. ft. of lot area. Because the structure was constructed as a two family residence prior to the Town’s regulations pertaining to lots less than 15,000 square feet, staff believes that it is reasonable to allow the structure to maintain its original development potential. The zoning establishing the restrictive unit requirement was adopted after the structure was approved by the Town and creates a hardship for the property…” ! 3.Broughton and Shanely Duplex located at 864 Spruce Court: In this 1992 case, the Shanleys and the Broughtons requested a density variance to allow for an addition to a duplex on a lot of only 12,354 sq. ft. Staff recommended approval of the density variance and the Planning and Environmental Commission approved the variance. The staff memo, similar to the previous two, states: ! “Staff believes that the history of this site and through documentation of approvals for the two units make the site unique from other lots with less than 15,000 square feet. Because the structure was constructed as a two-family residence prior to any Town regulations pertaining to lots less than 15,000 square feet, staff believes that it is reasonable to allow the structure to maintain its original development potential. The zoning establishing the restricted unit requirement was adopted after the structure was legally constructed and creates a hardship for the property…” ! 4.Hamner Residence located at 2854 Snowberry Drive: In this 1993 example, the Hamners requested a density variance to allow for an addition to the western half of the duplex. The duplex was nonconforming with regard to density, as two dwelling units existing on the site on a lot of only 13,370 sq. ft. Staff recommended approval of the density variance and the Planning and Environmental Commission approved the variance. In supporting the density variance, the staff memo states: ! “The site has sufﬁcient GRFA to allow for an addition to the building with exceeding the allowable GRFA on the site. The density variance is necessary only because the existing development exceeds the allowable dwelling unit count for the lot. Because the building was constructed as a two family residence prior to the Town’s regulations pertaining to lots less than 15,000 square feet in size, staff believes that it is reasonable to allow the structure to maintain its original development potential. The zoning established to restrict a secondary unit on a lot less than 15,000 square feet was adopted after the structure was legally constructed and the lot was subdivided, which creates a hardship for the property and causes a practical difﬁculty warranting the requested density variance.” ! These four examples of density variances have nearly identical circumstances to the Williams Family duplex. The duplex was legally constructed in 1968. The Zoning Regulations were subsequently amended in 1979, rendering the property non-conforming with regards to density. As such, no additions could be made to the property that would increase the GRFA beyond what existed at that time. The Town of Vail has consistently identiﬁed this as a non-self imposed hardship, and that a variance could be approved without a grant of special privilege. !! 3.The effect of the requested variance on light and air, distribution of population, transportation and trafﬁc facilities, public facilities and utilities, and public safety. ! Applicant Response: The proposed density variance has no effect on light and air, distribution of population, transportation and trafﬁc facilities, public facilities and utilities, and public safety. The development potential of the site (GRFA and site coverage) is actually reduced with the requested density variance, with the only difference for the site is that the second unit would have a Type I deed-restriction recorded against it. !! Conclusion ! It is clear from the unique circumstances and legislative history pertaining to the subject property that there exists a non-self imposed hardship based on the annexation of the lot to the Town of Vail, as well as the adoption and changes to the Town’s zoning regulations, which rendered this property “non- conforming”. As explained above, there is clear precedence established by the Planning and Environmental Commission that properties with similar circumstances have been afforded relief from the minimum lot size requirement which otherwise makes these properties non-conforming with respect to density. The applicant requests that this hardship be recognized and that variance be approved allowing the subject property to be considered a conforming lot for the purpose of density control now. !! Adjacent Properties ! VAIL CORP THE FIXED ASSETS DEPARTMENT 390 INTERLOCKEN CRES STE 1000 BROOMFIELD, CO 80021-8056 ! CHINA BOWL LODGE LLC 633 SEVENTEENTH ST STE 3000 DENVER, CO 80202 ! GAUGHAN, MICHAEL & MARTHA PAULA 3071 ARABIAN RD LAS VEGAS, NV 89107-4540 ! KNOBEL, PETER B. & PATRICE J. 392 MILL CREEK CIR VAIL, CO 81657-5168 ! CAULKINS VAIL LLC ROBERT J. SWIFT JR SVP 1600 BROADWAY DENVER, CO 80202 ! MILL CREEK PROPERTY LLC KEVIN VOLLMER 5310 WARD RD STE G07 ARVADA, CO 80002-1829 ! RAMS-HORN LODGE CONDOMINIUM ASSOCIATION, INC. DIANE MILLIGAN 416 VAIL VALLEY DR VAIL, CO 81657 !! Appendix A: Background and History December 16, 2013 Town of Vail Community Development Department Planning & Environmental Commission 75 South Frontage Road West Vail, Colorado 81657 Re: Request for Density Variance for 302 Mill Creek Circle / Lot 7, Block 1, Vail Village 1st Filing Dear Planning & Environmental Commission: This letter has been prepared to supplement the applicant’s request for a density variance from the Town of Vail Zoning Code, §12-6D-8: Density Control, in the Primary/Secondary (P/S) Zoning District I. Background: When Vail Associates was formed in the early 1960s, “they sold 100 limited partnerships at $10,000 each, and each partnership got equity, four lifetime lift passes and the right to pick out a residential lot for an additional $250. But they had to start construction on it within a year. So Vail [Associates] didn’t give them a deed right away; they had a lease. When they started construction at some point in time after that [Vail Associates] would give them a deed and then they’d go out and borrow money. That first year we probably had in round numbers about 25 houses built – some quite modest, some a little bigger – but everything in those early days was pretty modest. Nothing terribly fancy.”1 Many of those early investors chose to purchase lots on what became Mill Creek Circle, Forest Road, and Beaver Dam Road. In 1962, land owners Vail Associates, Ltd., and Vail Village Inn, Ltd., recorded Protective Covenants for Vail Village First Filing, which provided, among other things, the right to build “not more than two separate apartments”2: DEVLIN LAW GROUP, LLC DENVER / VAIL ____________________________________________________________________________________ DEVLIN LAW GROUP, LLC 201 Columbine Street, Suite #300 Denver, Colorado 80206 Office: (303) 780-4947; Mobile: (303) 358-0742 Email: tdevlin@devlawgroup.com 1 See The Vail Business Journal, Vail's 50th: A Conversation with Rod Slifer, by David O. Williams, December 13, 2012. 2 Protective Covenants, Vail Village First Filing, Eagle County Colorado, recorded August 10,1962, at Book 174, Page 179. Page 3of 8Vail Village First Filing Covenants 2/23/2008file://D:\My Documents\My Webs\Interland010103\VV1FLCOV.htm However, as Vail developed rapidly during the 1960s and 1970s, it became apparent to the Town Council that there was a need to further control residential densities within the Town. Ordinance No. 7, Series of 1969. Accordingly, in 1969, the Vail town council adopted Ordinance No. 7, entitled “AN ORDINANCE ESTABLISHING COMPREHENSIVE ZONING REGULATIONS FOR THE TOWN OF VAIL. . . .”, Vail’s first official Zoning Code. 3 This new Zoning Code established, among other things, two residential zoning districts: the Residential District and the Multi- Family District.4 For the Residential District (which applied to the applicant’s property and all of the other lots on Mill Creek Circle), this 1969 Zoning Code provided: (a)Uses Permitted. A person shall not use any premises in a Residential District except as hereinafter specifically permitted. 1. Uses by Right (a)Single-family residential dwellings; (b)Two-family residential dwellings; (c)Single-family and two family residential dwellings or one or more rooms contained therein, used by the owners as income producing property and available to the public for rent or hire.5 [Emphasis added.] The applicant, as well as all others owning property in the town of Vail who were re-zoned to Residential District, now had an undeniably reasonable investment-backed expectation that they would be able to build, occupy and/or rent up to two (2) residential dwellings on their respective lots (if they did not already have that right by virtue of the 1962 Protective Covenants.)6 Town of Vail December 16, 2013 Page #2 3 Ordinance No. 7, Series of 1969. 4 Ordinance No. 7, Series of 1969, Article II., Sections 1 & 2. 5 Ordinance No. 7, Series of 1969, Article II., Section 1(a). 6 See Footnote 2 above. Ordinance No. 7 (1969) also provided: (b) Regulations. The regulations under which the uses in a Residential District are permitted are as follows: 1. Minimums. The following minimums shall apply: (a)Floor area: 900 square feet; (b)Lot area: 10,000 square feet; (c)Setback: Front, rear and side - 10 feet. 2. Floor Area Ratio. The floor area ratio shall not exceed 0.33:1.7 [Emphasis added.] Ordinance No. 8, Series of 1973. Four years later, town council adopted Ordinance No. 8, Series of 1973, in order to amend Ordinance No. 7 (1969), “to meet changing conditions within the Town and to provide for the orderly growth and development of the Town. . .”8 This Ordinance established twelve (12) zoning districts, five of which were residential in nature.9 Council also adopted a new Official Zoning Map of the Town with this Ordinance10, with applicant’s property being zoned “R Two Family Residential.” For the R Two Family Residential District (which applied to the applicant’s property and all of the other lots on Mill Creek Circle), the 1973 Zoning Code thus provided: Section 3.200 Permitted Uses The following uses shall be permitted: (1)Single family residential dwellings. (2)Two family residential dwellings.11 . . . . Section 3.500 Development Standards 3.501 Lot Area and Site Dimensions. The minimum lot or site area shall be Town of Vail December 16, 2013 Page #3 7 Ordinance No. 7, Series of 1969, Article II., Section 1(b). 8 Ordinance No. 8, Series of 1973, Introductory Recitals. 9 Ordinance No. 8, Series of 1973, Article 1, Section 1.201, established the following residential zoning districts: (1) SFR Single Family Residential District; (2) R Two Family Residential District; (3) LDMF Low Density Multiple Family District; (4) MDMF Medium Density Multiple Family District; and (5) HDMF High Density Multiple Family District. 10 Ordinance No. 8, Series of 1973, Article 1, Section 1.202. 11 Ordinance No. 8, Series of 1973, Article 3, Section 3.200. 15,000 square feet. . . .12 . . . . 3.505 Density Control. Not more than 2 dwelling units in a single structure shall be permitted on each site, and not more than 25 square feet of gross residential floor area shall be permitted for each 100 square feet of site area.13 Ordinance No. 19, Series of 1976. Three years later, town council adopted Ordinance No. 19, Series of 1976, to “provide for proper land development and use. . .14 With respect to density control in the Two-Family Residential District, this Ordinance provided: “Not more than 2 dwelling units in a single structure shall be permitted on each site . . . . the aggregate gross residential floor area for the two dwelling units in a duplex structure may not exceed 4,000 square feet; and that a single- family dwelling may contain the maximum gross residential floor area permitted for the site area.”15 Ordinance No. 30, Series of 1977. Ordinance No. 30, Series of 1977, established, among other things, a new zoning district and Chapter 18.13 entitled “TWO FAMILY PRIMARY/SECONDARY RESIDENTIAL DISTRICT”. The stated purpose provided in pertinent part: “The Two-Family Primary/ Secondary Residential District is intended to provide sites for single family; or two-family residential uses in which one unit is a larger primary residence and the second unit is a smaller “caretaker apartment . . .”.16 The only two “Permitted Uses” were: (1) Single family residential dwellings, and (2) Two-family residential dwellings.17 Fifteen thousand (15,000) square feet was the new “Minimum Lot Area” established for this new district.18 Finally, regarding density control, Ordinance No. 30 provided: “Not more than two dwelling units in a single structure shall be permitted on each site. . . . On any site containing two dwelling units, one of the units shall not exceed one-third of the allowable total gross residential floor area (GRFA).”19 [Emphasis Town of Vail December 16, 2013 Page #4 12 Ordinance No. 8, Series of 1973, Article 3, Section 3.501. 13 Ordinance No. 8, Series of 1973, Article 3, Section 3.505. 14 Ordinance No. 19, Series of 1976, Introductory Recitals. 15 Ordinance No. 19, Series of 1976, Section 4, Section 3.505 Density Control. 16 Ordinance No. 30, Series of 1977, Section 2, §18.13.010, Purpose. 17 Ordinance No. 30, Series of 1977, Section 2, §18.13.020, Permitted Uses. 18 Ordinance No. 30, Series of 1977, Section 2, §18.13.050, Lot Area and Site Dimensions. 19 Ordinance No. 30, Series of 1977, Section 2, §18.13.080, Density Control. added.] The applicant’s property, and all of the other lots on Mill Creek Circle, were concurrently rezoned this new Two-Family Primary/Secondary Residential District. Ordinance No. 12, Series of 1978. The following year, town council adopted Ordinance No. 12, which provided the following with respect to P/S density control: 18.13.080 DENSITY CONTROL (Two-Family Primary/Secondary Residential District) - Not more than a total of two dwelling units in a single structure shall be permitted on each site. . . . No two family residential lot except those totally in the red hazard avalanche zone, or the flood plain, shall be so restricted to a point it cannot be occupied by a two-family primary/secondary dwelling.20 [Emphasis added.] Ordinance No. 22, Series of 1979. Council adopted Ordinance No. 22 the following year, which introduced and imposed the employee housing deed restriction and other severe development restrictions on Primary/Secondary lots less than 15,000 square feet; included were the following ordinance recitals: WHEREAS, presently all lots in the . . . Primary/Secondary Residential District are permitted two dwellings; WHEREAS, the town council is of the opinion that lots of less than 15,000 square feet would be overcrowded with two units; WHEREAS, only under certain exceptions should there be more than one dwelling unit on a lot less than 15,000 square feet. Ordinance 22 went on to provide: 18.13.080 DENSITY CONTROL (Two-Family Primary/Secondary Residential District) (A)Not more than a total of two dwelling units in a single structure shall be permitted on each site, with only one dwelling unit permitted on lots less than 15,000 square feet. . . . No two family residential lot Town of Vail December 16, 2013 Page #5 20 Ordinance No. 12, Series of 1978, Section 2, Section 18.13.080, Density Control. except those totally in the red hazard avalanche zone, or the flood plain, or of those less than 15,000 square feet shall be so restricted to a point it cannot be occupied by a two-family primary/secondary dwelling. (B)The Planning and Environmental Commission may grant an exception to the restrictions of this Section relating to lots less than 15,000 square feet to allow the addition of a second dwelling unit if the following criteria are met: (1)The second unit shall not exceed 1/3 of the total GRFA allowed on the lot; and (2)The Planning and Environmental Commission shall find that the granting of the exception will not be detrimental to the public welfare or injurious to other property in the area in which the subject property is situated; and (3)The applicant shall agree in writing: (a)That the second dwelling unit shall not be sold, transferred, or conveyed separately from the primary unit; and (b)That the secondary dwelling unit shall not be leased or rented for any period of less than 30 consecutive days; and that it shall be rented only to tenants who are residents of the Upper Eagle Valley or who are full-time employees in the Upper Eagle Valley. . . . (c)That the secondary shall not be divided into any form of time shares, interval ownership or fractional fee; and (d)That a declaration of covenants and restrictions shall be filed of record in the office of the Eagle County Clerk and Recorder in a form approved by the Town Attorney for the benefit of the Town to insure that the restrictions herein shall run with the land; and (4)No such exception shall be granted unless a written application has been submitted to and considered by the Planning and Environmental Commission in accordance with the provisions of Chapter 18.66 of the Zoning Code of the Town of Vail.21 [Emphasis added.] Ordinance No. 35, Series of 1980. Town council adopted a corrective ordinance the following year, which provided: WHEREAS, the adoption of Ordinance 22, Series of 1979, omitted a portion of the Density Control Section of the Two Family Primary/ Secondary Residential District; and Town of Vail December 16, 2013 Page #6 21 Ordinance No. 22, Series of 1979, Introductory Recitals, and Section 1, §18.13.080, Density Control. WHEREAS, Ordinance 22, Series of 1979, needs to be corrected. This Ordinance went on to provide: 18.13.080 DENSITY CONTROL (Two-Family Primary/Secondary Residential District): (A)Not more than a total of two dwelling units in a single structure shall be permitted on each site, with only one dwelling unit permitted on lots less than 15,000 square feet. . . . On any site containing two dwelling units, one of the units shall not exceed one-third of the allowable gross residential floor area (GRFA). No two family residential lot except those totally in the red hazard avalanche zone, or the flood plain, or of those less than 15,000 square feet shall be so restricted to a point it cannot be occupied by a two-family primary/ secondary dwelling.22 [new text shown as underlined] Ordinance No. 22, Series of 1981. Considerable changes to the Primary/Secondary zoning district were made again the following year, with town council changing the review body for applications/ requests for exceptions to the density restrictions on lots less than 15,000 square feet, from the Planning and Environmental Commission (PEC) to the Design Review Board (DRB), finding that the “Department of Community Development is the appropriate agency to take final action on such requests and prepare the necessary agreements and restrictions for the use of employee housing.”23 Ordinance No. 22 also adopted the following detailed requirements and criteria in repealing and reenacting Section 18.13.080: 18.013.080B. The Community Development Department may grant an exception to the restrictions of this section relating to lots of less than 15,000 square feet to allow the addition of a second dwelling unit if the following criteria are met: 1. The second unit shall not exceed forty percent of the total GRFR allowed on the lot; and Town of Vail December 16, 2013 Page #7 22 Ordinance No. 35, Series of 1980, Introductory Recitals and Section 1, §18.13.080 Density Control. 23 Ordinance No. 22, Series of 1981, Introductory Recitals. 2. The Community Development Department shall find that the granting of the exception will not be detrimental to the public welfare or injurious to other property in the area in which the subject property is situated; and 3. That no variances for setbacks, height, parking, site coverage or landscaping, site development or gross residential floor area would be approved unless the granting of such a variance benefits the visual appearance of the site and surrounding area; and 4. That fifty percent of the required parking must be enclosed, and 5. The architectural design of the structure and the materials and colors must be visually harmonious with their sites and with surrounding sites and structures, and must not unnecessarily block scenic views from existing buildings; and 6. Access to the secondary unit must not adversely affect adjacent structures; and 7. The applicant must demonstrate that the site has the ability to double its capacity for handling trash and outdoor storage, and 8. An application for the second unit, containing the following information, must be submitted to the Community Development Department for their review: a. Name of applicant and address b. Name of applicant’s representative (if any) c. Authorization of property owner d. Location of the property far which the proposal is made e . A fee of $100.00 plus an amount equal to the then current first-class postage rate for each property owner to be notified hereunder f. A list of the names of the owners of all property adjacent to the subject property and their addresses for the purpose of notification; and 9. The proposed plan and all required materials must be submitted to the Design Review Board at their regularly scheduled meeting for their review and approval; and 10.The applicant shall agree in writing: a.That the secondary dwelling unit shall not be sold, transferred or conveyed separately from the primary unit for a period of not more than twenty (20) years and the life of Trent Ruder from the date that the Certificate of Occupancy is issued for said second unit; and b.That the secondary dwelling unit shall not be leased or rented for any period of less than thirty (30) consecutive days, and that if it shall be rented it shall be rented only to tenants who are full time employees in the Upper Eagle Valley. The " Upper Eagle Valley" shall be deemed to include the GoreValley, Minturn, Red Cliff, Gilman, Eagle-Vail,and Avon and their surrounding areas. A" full-time employee" is a person who works an average of thirty (30) hours per week; and Town of Vail December 16, 2013 Page #8 c.That the secondary dwelling unit shall not be divided into any form of timeshares, interval ownership or fractional fee; and d.That a declaration of covenants and restrictions shall be filed of record in the Office of the Eagle County Clerk and Recorder in a form approved by the Town Attorney for the benefit of the Town to insure that the restrictions herein shall run with the land.24 Finally, Ordinance No. 22 (1981) also provided for an appeal procedure of DRB/ Community Development Department decisions on such P/S zoning secondary unit application requests to be made to the PEC, with appeals of PEC decisions to the Town Council. 25 Ordinance No. 23, Series of 1981. Concurrent with adopting Ordinance 22, town council adopted Ordinance No. 23 (1981) regarding the increase in the permitted size and design of the primary/secondary structures: 18.13.080B1. [The] [s]econd unit shall not exceed 40% of the total GRFR allowed on the lot and shall not be substantially similar in design to the primary unit.26 [Added text.] Ordinance No. 23, Series of 1986. Five years later, and to correct “a typographical error [that] resulted in Section 18.13.080 being eliminated” at the time Ordinances 22 and 23 (1981) were adopted, town council adopted Ordinance No. 23 (1986) in order to repeal and re-enact with amendments Section 18.13.080 A pertaining to the Primary/Secondary zone district to read as follows: Section 18.13.080 A. Density Control A. Not more than a total of two dwelling units in a single structure shall be permitted on each site, with only one dwelling unit permitted on lots of less than fifteen thousand square feet. . . . On any site containing two dwelling units, one of the units shall not exceed 40 percent of the total allowable gross residential floor area (GRFA). No two-family residential lot except those totally in the red hazard avalanche zone, or the flood plain, or those of less than fifteen thousand square Town of Vail December 16, 2013 Page #9 24 Ordinance No. 22, Series of 1981, Section 1, §18.13.080B Density Control. [Note, the “twenty (20) years and the life of Trent Ruder” language in §10a. was likely inserted as an attempted Rule Against Perpetuities savings clause.] 25 Ordinance No. 22, Series of 1981, Sections 2 & 3. 26 Ordinance No. 23, Series of 1981, Section 2, §18.13.080B Density Control. feet shall be so restricted that it cannot be occupied by a two family primary/ secondary residential dwelling.27 Ordinance No. 12, Series of 1988. Two years later, town council adopted Ordinance No. 12 (1988) to further clarify the design guidelines for duplex and primary/secondary development. A new Section 18.54.050 - Duplex and Primary/Secondary Development - was added to the zoning code to address certain design and site constraint issues.28 In addition, §18.13.080 was amended to eliminate the “single structure” requirement for two units when site constraints so require.29 Ordinance No. 19, Series of 1990. Two years later, town council adopted Ordinance No. 19 (1990) to correct Ordinance No. 12 (1988), which had “inadvertently eliminated the requirement that the [GRFA] distribution ratio for primary/secondary units shall be no greater than forty percent (40%) of the total allowable gross residential floor area.”30 Ordinance No. 37, Series of 1990. Later that same year, town council adopted Ordinance No. 37 to amend the definition of GRFA and how it is calculated,31 as well as to once again modify Section 18.13.080A, Primary/ Secondary Density Control, by the addition of the following provision to allow for an increase in the permitted GRFA: “In addition to the above, four hundred twenty-five square feet of gross residential floor area (GRFA) shall be permitted for each allowable dwelling unit.”32 Ordinance No. 6, Series of 2000. A decade later, town council adopted this Ordinance, which served to repeal and reenact Chapter 13, Employee Housing, as well as reduce the minimum lot size triggering the EHU Town of Vail December 16, 2013 Page #10 27 Ordinance No. 23, Series of 1986, Section 1, §18.13.080A Density Control. 28 Ordinance No. 12, Series of 1988, Section 1, §18.54.050 Duplex and Primary/Secondary Development. 29 Ordinance No. 12, Series of 1988, Section 4, §18.13.080A. 30 Ordinance No. 19, Series of 1990, Introductory Recitals, and Section 1, §18.13.080A. 31 Ordinance No. 37, Series of 1990, Section 1, Section 18.04.130 Floor area, gross residential (GRFA). 32 Ordinance No. 37, Series of 1990, Section 5, Section 18.13.080 A. Density Control. requirement in the P/S zoning district from 15,000 square feet to 14,000 square feet.33 As a result, secondary units were now required to be deed restricted EHUs on lots less than 14,000 square feet (instead of 15,000). [Note that during the interim period 1990 to 2000, the Town’s Zoning Code was updated, resulting in section renumbering; §18.13.080B was renumbered to Section 12-6D-8: Density Control (Primary/Secondary).] In adopting Ordinance No. 6 (2000), town council made a finding that “these amendments will provide additional incentives to the private sector to provide employee housing units throughout the Town of Vail”, and that “the proposed amendments will encourage the incorporation of employee housing units through the redevelopment of older homes in the Town. . . “34 Some of the “incentives” that were included can be seen the following table: With these amendments, secondary units on lots less than 14,000 square feet (still required to be restricted as EHUs) in the Primary/Secondary District were (and are now) permitted to be sold or transferred separately from the primary unit; the secondary unit/EHU is now entitled to an additional 550 square feet of GRFA; site coverage is permitted to be increased by 5% to accommodate the EHU, and a 5% reduction in required landscape area is afforded.35 Town council’s 1979 concern of “overcrowding” on these lots was apparently nevermore. However, and ironically, these so-called “incentives to the private sector to provide employee housing units” undeniably result in increased adverse site impacts on such P/S “smaller” lots and the surrounding neighborhood. Ordinance No. 14, Series of 2004. In 2004, town council adopted Ordinance No. 14, which modified the formula for calculating GRFA in the Primary/Secondary Residential District, thus eliminating the “additional Town of Vail December 16, 2013 Page #11 33 Ordinance No. 6, Series of 2000, Section 1. 34 Ordinance No. 6, Series of 2000, Introductory Recitals. 35 Ordinance No. 6, Series of 2000, Section 1. 425 square feet for each permitted dwelling unit.”36 Ordinance No. 29, Series of 2005. Finally, in 2005, town council adopted Ordinance No. 29, which added “Type IV” employee housing units as an additional permitted use in the Two-Family Primary/Secondary (P/ S) District.37 II. Effect of Density Limitation. The applicant’s family has owned the property at 302 Mill Creek Circle since 1968 when they purchased it from then Mayor John Dobson, who ironically executed Ordinance No. 7 (1969) on the Town’s behalf, which adopted the first Zoning Code Regulations and Official Zoning Map.38 Since the structure was built on the applicant’s property by Mr. Dobson in 1963, and during the entire time since, the applicant has owned and enjoyed the property, and there have existed two (2) separate dwelling units, neither of which is deed restricted for employee housing/EHU. The applicant has continuously enjoyed owning the two units for 45+ years for the growing family’s personal use, just as permitted under the 1962 Protective Covenants, as well as the 1977 Zoning Code. However, the Town’s Community Development Department has recently informed the applicant that if at some point in time they wish to completely redevelop their property, they could in fact build two P/S dwelling units, with up to the maximum 60%/40% floor area ratio split39, but the smaller of the two units would have to become a deed restricted EHU that they would no longer be able to occupy or use themselves since they are not local residents, nor are they employed in Eagle County as required by the EHU Ordinance, which currently requires: For EHUs which are required to be leased, they shall only be leased to and occupied by tenants who are full time employees who work in Eagle County. Town of Vail December 16, 2013 Page #12 36 See Footnote 32 above. Additionally, Ordinance No. 14 (2004), Section 5, §12-6D-8B provided: P/S GRFA formula revised as follows: 0.46 of site area < 10,000 sq. ft., plus 0.38 of site area > 10,000 < 15,000 sq. ft., plus 0.13 of site area > 15,000 < 30,000 sq. ft., plus 0.06 of site area >30,000 sq. ft. (the secondary unit shall not exceed 40% of the allowable GRFA) 37 Ordinance No. 29, Series of 2005, Section 23, Section 12-6D-2. 38 See Footnotes 3-7 above. 39 See Footnotes 22-23 above. An EHU shall not be leased for a period less than thirty (30) consecutive days. An EHU shall be continuously rented and shall not remain vacant for a period to exceed three (3) consecutive months.40 Meanwhile, the applicant’s similarly situated Mill Creek Circle neighbors on Lots 6, 10, 13-19, each of whose respective P/S lot is greater than 14,000 square feet, has the right to build up to two (2) free market, unrestricted dwelling units for their personal use and enjoyment, as well as the freedom to rent each unit on a short or long term basis as they see fit. The lot sizes for all of the P/S platted lots in Vail Village Filing No. 1, Block No. 1 (which includes all of the lots on Mill Creek Circle), are as follows: Lot # [Vail Village First Filing, Block 1] / Address Lot Size (per Eagle County Assessor’s Office) Lot 1/ 325 Mill Creek Cir. 13,068 Sq. Ft. (0.300 AC) Lot 2/ 315 Mill Creek Cir. 12,066 Sq. Ft. (0.277 AC) Lot 3/ 303 Mill Creek Cir. 12,545 Sq. Ft. (0.288 AC) Lot 4/ 328 Mill Creek Cir. 12,240 Sq. Ft. (0.281 AC) Lot 5/ 312 Mill Creek Cir. 11,717 Sq. Ft. (0.269 AC) Lot 6/ 304 Mill Creek Cir. 16,161 Sq. Ft. (0.371 AC) Lot 7/ APPLICANT 302 Mill Creek Cir. 12,763 Sq. Ft. (0.293 AC) Lot 8/ 392 Mill Creek Cir. 12,894 Sq. Ft. (0.296 AC) Lot 9/ 362 Mill Creek Cir. 13,982 Sq. Ft. (0.321 AC) Lot 10/ 342 Mill Creek Cir. 17,641 Sq. Ft. (0.405 AC) Town of Vail December 16, 2013 Page #13 40 Town Code §12-13-3A.2 (2013). Lot # [Vail Village First Filing, Block 1] / Address Lot Size (per Eagle County Assessor’s Office) Lot 11/ 332 Mill Creek Cir. 12,414 Sq. Ft. (0.285 AC) Lot 13/ 325 Mill Creek Cir. 15,420 Sq. Ft. (0.354 AC) Lot 14/ 345 Mill Creek Cir. 23,217 Sq. Ft. (0.533 AC) Lot 15/ 353 Mill Creek Cir. 29,620 Sq. Ft. (0.680 AC) Lot 16/ 365 Mill Creek Cir. 19,384 Sq. Ft. (0.445 AC) Lot 17/ 375 Mill Creek Cir. 18,513 Sq. Ft. (0.425 AC) Lot 18/ 385 Mill Creek Cir. 17,075 Sq. Ft. (0.392 AC) Lot 19/ 395 Mill Creek Cir. 18,905 Sq. Ft. (0.434 AC) A copy of a portion of the original plat of Vail Village First Filing, Block 1, depicts all of the lots located on Mill Creek Circle: Town of Vail December 16, 2013 Page #14 III. Conclusion. As stated above, the applicant’s family has owned 302 Mill Creek Circle since purchasing it in 1968 from Mayor Dobson, and during that entire time have had two dwelling units on their property, neither of which is a deed restricted EHU, for their personal use and enjoyment. As explained above, the Community Development Department’s position on the applicant’s situation is that the two (2) existing dwelling units are recognized by the Town as being “grandfathered”, non-conforming uses, allowed to remain until the property is redeveloped, at which such time the EHU deed restriction would apply to any second unit constructed on their lot, which they would then be unable to use or occupy for themselves.41 The applicant certainly lauds the Town of Vail’s efforts and achievements over the years in providing housing for local employees. However, it is patently unfair for the Town to impose such severe use and development restrictions on a particular group of property owners, i.e., those owning P/S lots less than 14,000 square feet in size, in furtherance of it’s goal to provide employee housing. The Town of Vail’s current zoning regulations at Section 12-6D-8: Density Control, as Town of Vail December 16, 2013 Page #15 41 See Footnotes 40-41 above. well as those regulations imposed by Ordinance No. 22 (Series 1979) through Ordinance No. 6 (Series of 2000) cited herein above, are arbitrary and capricious with respect to requiring a second unit to be a deed restricted EHU on lots less than 14,000 square feet. These restrictions amount to a regulatory taking of the applicant’s property in violation of the Due Process and Equal Protection Clauses of the U.S. and Colorado Constitutions. Accordingly, the applicant respectfully requests a variance as described in the first paragraph of this letter. Very truly yours, DEVLIN LAW GROUP, LLC Timothy N. Devlin Timothy N. Devlin, Esq. Town of Vail December 16, 2013 Page #16