HomeMy WebLinkAboutPEC130041 Williams Family Variance Memorandum and AttachmentsrowN OF VAIL')
Memorandum
To: Planning and Environmental Commission
From: Community Development Department
Date: January 13, 2014
Subject: A request for the review of a variance from Section 12 -6D -8, Density Control, Vail
Town Code, pursuant to Chapter 12 -17, Variances, Vail Town Code, to allow for
two dwelling units on a nonconforming lot, located at 302 Mill Creek Circle /Lot 7,
Block 1, Vail Village Filing 1, and setting forth details in regard thereto.
(PEC130041)
Applicant: Williams Family Trust, represented by the Mauriello Planning Group
and Devlin Law Group, LLC
Planner: Warren Campbell
I. SUMMARY
The applicant, Williams Family Trust, represented by the Mauriello Planning Group and
the Devlin Law Group, is requesting a density variance to allow for two dwelling units on
a lot less than 14,000 square feet, within the Two - Family Primary/Secondary (PS)
district. Based upon Staff's review of the criteria outlined in Section VII of this
memorandum and the evidence and testimony presented, the Community Development
Department recommends the Planning and Environmental Commission approve this
application subject to the findings noted in Section VIII of this memorandum.
II. DESCRIPTION OF THE REQUEST
The applicant is requesting a density variance to allow for two dwelling units on a lot
less than 14,000 square feet in the PS district. Within the PS district lots less than
14,000 square feet are permitted only a single dwelling unit per lot. There are currently
two dwelling units on the applicant's lot which measures 12,763 square feet.
As there are two dwelling units on a lot which is limited to one dwelling unit, the lot is
considered nonconforming with regard to the structure and site improvements. As the
lot is considered nonconforming pursuant to Chapter 12 -18, Nonconforming Sites,
Uses, Structures and Site Improvements, Vail Town Code, the dwelling units can be
modified only if the total gross residential floor area of the modified structure does not
exceed the pre- existing structure. The applicant is requesting the variance to pursue
additions on an existing two dwelling unit structure on a lot less than 14,000 square feet.
The applicant's written request (Attachment A) highlights the history of the PS district
through the implementation of zoning and subsequent amendments. Through the
adoption of zoning in the Town of Vail and subsequent amendments, the property is
restricted to a single dwelling and employee housing unit (EHU).
III. BACKGROUND
The lot at 302 Mill Creek Circle was platted in 1962. The current two - family structure
was built in 1963, prior to the incorporation of the Town of Vail and adoption of zoning
regulations. The size of the lot is 12,763 square feet. As shown in the following list the
minimum required lot size and allowable number of dwellings units has changed
multiple times.
• Ordinance No. 7, Series of 1969, adopted comprehensive zoning regulations for
the Town of Vail. The subject property was zoned residential and a minimum lot
size of 10,000 square feet was established.
• Ordinance No. 8, Series of 1973, established the two - family residential zone
district which was applied to the subject property. The two - family district
established a minimum lot size of 15,000 square feet and permitted two dwelling
units.
• Ordinance No. 30, Series of 1977, established the PS district which was applied
to the subject property. The two - family primary /secondary district established
15,000 square feet as the minimum lot size and permitted two dwelling units.
• Ordinance No. 22, Series of 1979, amended the PS district to restrict lots less
than 15,000 square feet to a single dwelling unit. This ordinance introduced
employee housing which was permitted as a second dwelling unit on properties
less than 15,000 square feet. This ordinance rendered the subject property
nonconforming with regard to the two existing dwelling units on the lot.
Ordinance No. 6, Series of 2000, reduced the minimum required lot size for
allowing two dwelling units in the PS from 15,000 to 14,000 square feet.
On November 25, 2013 PEC voted 4 -0 -2 to recommend denial of a request for a
recommendation to the Vail Town Council for a prescribed regulations amendment, to
amend Section 12 -6D -8, Density Control, Vail Town Code, of the PS district to strike the
requirement that existing lots with less than under 14,000 square feet are permitted only
a single dwelling unit.
IV. APPLICABLE PLANNING DOCUMENTS
Chapter 12 -6D: Two - Family Primary /Secondary District (in part)
Town of Vail Page 2
12 -613-1: Purpose:
The two - family primary/secondary residential district is intended to provide sites
for single- family residential uses or two - family residential uses in which one unit
is a larger primary residence and the second unit is a smaller caretaker
apartment, together with such public facilities as may appropriately be located in
the same zone district. The two - family primary /secondary residential district is
intended to ensure adequate light, air, privacy and open space for each dwelling,
commensurate with single- family and two - family occupancy, and to maintain the
desirable residential qualities of such sites by establishing appropriate site
development standards.
12 -6D -2: Permitted Uses:
The following uses shall be permitted:
Employee housing units, as further regulated by chapter 13 of this title.
Single- family residential dwellings.
Two - family residential dwellings.
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.
Chapter 12 -17: Variance (in part)
12 -17 -1: Purpose: A. Reasons for Seeking Variance: In order to prevent or to
lessen such practical difficulties and unnecessary physical hardships inconsistent
with the objectives of this title as would result from strict or literal interpretation
and enforcement, variances from certain regulations may be granted. A practical
difficulty or unnecessary physical hardship may result from the size, shape, or
dimensions of a site or the location of existing structures thereon; from
topographic or physical conditions on the site or in the immediate vicinity; or from
other physical limitations, street locations or conditions in the immediate vicinity.
Cost or inconvenience to the applicant of strict or literal compliance with a
regulation shall not be a reason for granting a variance.
Chapter 12 -18: Nonconforming Sites, Uses, Structures and Site Improvements (in
part)
12 -18 -1: Purpose:
This chapter is intended to limit the number and extent of nonconforming uses
and structures by prohibiting or limiting their enlargement, their reestablishment
after abandonment, and their restoration after substantial destruction. While
permitting nonconforming uses, structures, and improvements to continue, this
Town of Vail Page 3
chapter is intended to limit enlargement, alteration, restoration, or replacement
which would increase the discrepancy between existing conditions and the
development standards prescribed by this title.
12 -18 -2: Continuance:
Nonconforming sites, uses, structures, and site improvements lawfully
established prior to the effective date hereof may continue, subject to the
limitations prescribed in this chapter. Sites, uses, structures, and site
improvements lawfully authorized by permits or regulations existing prior to the
effective date hereof may continue, subject to such limitations as prescribed by
such permits or regulations.
12 -18 -5: Structure and Site Improvement:
Structures and site improvements lawfully established prior to the effective date
hereof which do not conform to the development standards prescribed by this
title for the zone district in which they are situated may be continued. Such
structures or site improvements may be enlarged only in accordance with the
following limitations:
A. Lot And Structure Requirements: Structures or site improvements which do
not conform to requirements for setbacks, distances between buildings,
height, building bulk control, or site coverage, may be enlarged; provided,
that the enlargement does not further increase the discrepancy between
the total structure and applicable building bulk control or site coverage
standards; and provided that the addition fully conforms with setbacks,
distances between buildings, and height standards applicable to the
addition.
B. Density Control: Structures which do not conform to density controls
(includes GRFA and dwelling units /acre) may be modified, only if the total
aross residential floor area of the enlaraed structure does not exceed the
total gross residential floor area of the preexisting nonconforming
structure.
C. Open Space And Landscaping: Structures or site improvements which do
not conform to requirements for usable open space or landscaping and
site development may be enlarged; provided, that the usable open space
requirements applicable to such addition shall be fully satisfied, and
provided that the percentage of the total site which is landscaped shall not
be reduced below the minimum requirement.
D. Off Street Parking And Loading: Structures or site improvements which do
not conform to the off street parking and loading requirements of this title
may be enlarged; provided, that the parking and loading requirements for
such addition shall be fully satisfied and that the discrepancy between the
Town of Vail Page 4
existing off street parking and loading facilities and the standards
prescribed by this title shall not be increased.
V. ZONING ANALYSIS
Address: 302 Mill Creek Circle
Legal Description: Lot 7, Block 1, Vail Village Filing 1
Zoning: Two - family Primary/Secondary Residential District
Land Use Plan Designation: Low Density Residential
Current Land Use: Two Family Residential Structure
Geological Hazards: None
Lot size: 0.293 acre / 12,762 sf
Standard
Allowed /Required
Existing
Permitted
(if approved)
Density:
DUs
1 DU and 1 EHU
2 DUs*
2 DUs
GRFA
5,649 sf
4,228 sf
5,648
Building Height
33 ft
22 ft
33 ft
Site Coverage
2,552.6 sf (20 %)
3,191 sf (25 %) **
2,552.6 sf (20 %)
Landscape Area
7,657(60%)
7,961 sf (62 %)
7,657(60%)
Parking:
East
2 spaces
2 enclosed
3 spaces
West
3 spaces
3 surface
3 spaces
Setbacks:
Front
20 ft
24 ft
20 ft
Rear
15 ft
15 ft
15 ft
Sides
15ft /15ft
29 ft/31.5 ft
15 ft/15 ft
*The site is nonconforming with regarding to density, dwelling units. If this variance
were approved it would be no longer nonconforming with regard to density, dwelling
units.
* *The site is nonconforming with regard to site coverage.
VI. SURROUNDING LAND USES AND ZONING
Existing Use
North: Open Space
South: Single- family Residential
Zone District
Agriculture and Open Space District
Two - family Primary/secondary District
Town of Vail Page 5
East: Single- family Residential Two - family Primary /secondary District
West: Single- family Residential Two - family Primary /secondary District
VII. CRITERIA FOR REVIEW
1. The relationship of the requested variance to other existing or potential uses
and structures in the vicinity.
The subject property, Lot 7, is located within a residential development bordered on the
south, east and west by single family homes and on the north by Vail Corporation
owned platted open space. This request for a variance, if approved, would result in the
lot becoming conforming and therefore the two existing dwelling units could be
expanded pursuant to the requirements of the zone district. There is approximately
1,421 square feet of GRFA unused on the lot. If this GRFA were to be added to the
units on Lot 7, the resulting bulk, mass, and height would be comparable and in
proportion (allowable development based on lot size) to the surrounding properties as
each lot in the vicinity shares the same zoning. The two distinctions would be that the
allowable GRFA for Lot 7 will be split 60/40, pursuant to the zone district, verses all of it
being incorporated into a single - family structure on the lots within this neighborhood and
required parking for the two dwelling units would be greater than a single dwelling unit
by one (1) space. Any future use of remaining development potential will be required to
comply with setbacks, height, landscape area, and parking. It should be noted that the
existing structure on Lot 7 is nonconforming with regard to site coverage. The site
coverage of the subject property will not be permitted to be expanded pursuant to
Chapter 12 -18, Nonconforming Sites, Uses, Structures and Site Improvements, Vail
Town Code.
Therefore, Staff believes this proposal will not negatively affect the existing or potential
uses and structures in the vicinity.
2. The degree to which relief from the strict and 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 a grant of special privilege.
The following is an analysis of properties zoned Two - Family Primary /Secondary (PS)
district and Two - Family district (R). This analysis was performed in order to determine
the existing number of properties within the PS and R districts with nonconforming
densities on lots less than 14,000 square feet. Staff's conclusion was that there are
small number of properties in these two closely related zone districts which have a
scenario matching that of subject property, making them uncommon.
• 716 lots are zoned PS district and 303 lots are zoned R district.
• 299 or 29.3% of the lots zoned PS and R district are less than 14,000 square
feet.
Town of Vail Page 6
• 62 or 6.1 % of the lots zoned PS and R district measuring less than 14,000
square feet have more than one dwelling unit on the property making them
nonconforming.
• A minimum of 4 of the 62 or 6.5% of the nonconforming lots with regard to lot
size and density zoned PS and R district have been granted variances for density
to allow for GRFA additions. See applicant's written application for specific
properties (Attachment A).
The subject lot was constructed prior to the incorporation of the Town of Vail and prior
to the adoption of zoning regulations. It was initially constructed with two dwelling units
and the lot size has remained 12,762 square feet since it was initially platted. The
adoption and amendments to the zoning code have resulted in the subject property
becoming nonconforming. As the structure and site improvements were in place prior
to the current regulations, staff believes a hardship has been created which treats this
lot differently than other lots within the PS district. A request for a variance to a
development requirement such as setbacks, site coverage, height, landscape area, or
parking in a scenario where there are two dwelling units on a lot less than 14,000
square feet would not be supported by staff due to the impacts that would result from
the approval of one of these requests. A similar finding was made in the four (4)
approved density variances elaborated upon in the applicant's written application.
Therefore, Staff believes the proposed relief from the density regulations is necessary
to achieve compatibility and uniformity of treatment among sites in the vicinity and to
attain the objectives of this title 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.
The proposed variance, if approved, will allow for the construction of the remaining
1,421 square feet of GRFA on the lot. As was previously noted the structure currently
exceeds site coverage. As the site coverage of the home cannot be expanded as a
result of any proposed addition the unused GRFA will need to be constructed above or
beneath the current structure. There is remaining allowable height which would permit
the addition of a new floor to the structure. Any addition to the height of the structure
will impact light and air upon the lot, however, this impact is no greater than that which
is permitted on all lots zoned PS district. The construction of the unused GRFA will not
will not alter population; will not affect any existing transportation or traffic facilities,
public facilities, or utilities; and will not affect public safety in comparison to existing
conditions. Therefore, Staff believes the proposed variance conforms to this criterion.
4. Such other factors and criteria as the commission deems applicable to the
proposed variance.
Town of Vail Page 7
VIII. STAFF RECOMMENDATION
The Community Development Department recommends approval, of a variance from
Section 12 -6D -8, Density Control, Vail Town Code, pursuant to Chapter 12 -17,
Variances, Vail Town Code, to allow for two dwelling units on a nonconforming lot,
located at 302 Mill Creek Circle /Lot 7, Block 1, Vail Village Filing 1, and setting forth
details in regard thereto. This recommendation is based upon the review of the criteria
outlined in Section VII of this memorandum and the evidence and testimony presented.
Should the Planning and Environmental Commission choose to approve this variance
request, the Community Development Department recommends the Commission pass
the following motion:
"The Planning and Environmental Commission approves the applicants' request
for a variance from Section 12 -6D -8, Density Control, Vail Town Code, pursuant
to Chapter 12 -17, Variances, Vail Town Code, to allow for two dwelling units on a
nonconforming lot, located at 302 Mill Creek Circle /Lot 7, Block 1, Vail Village
Filing 1, and setting forth details in regard thereto."
Should the Planning and Environmental Commission choose to approve this variance
request, the Community Development Department recommends the Commission
makes the following findings:
'Based upon a review of Section V11 of the January 13, 2014 staff memorandum
to the Planning and Environmental Commission, and the evidence and testimony
presented, the Planning and Environmental Commission finds:
The granting of this variance will not constitute a granting of special privilege
inconsistent with the limitations on other properties classified in the Two -
family Primary/Secondary District.
2. The granting of this variance will not be detrimental to the public health,
safety, or welfare, or materially injurious to properties or improvements in the
vicinity.
3. This variance is warranted for the following reasons:
a. The strict literal interpretation or enforcement of the specified
regulation will result in practical difficulty or unnecessary physical
hardship inconsistent with the objectives of Title 12, Zoning
Regulations, Vail Town Code.
b. There are exceptions or extraordinary circumstances or
conditions applicable to the same site of the variance that do not
apply generally to other properties in the Two - family
Primary/secondary District.
Town of Vail Page 8
C. The strict or literal interpretation and enforcement of the specified
regulation would deprive the applicant of privileges enjoyed by the
owners of other properties in the Two - Family Primary/Secondary
District. "
IX. ATTACHMENTS
A. Applicant written request dated December 16, 2013
B. Vicinity Map
Town of Vail Page 9
Williams Family
Duplex
DensityVariance
Date Submitted: December 16, 2013
DEVLIN LAW GROUP, LLC
f
DENVER I VAIL
Location:
302 Mill Creek Circle
Lot 7, Block I ,Vail Village I st Filing
Parcel: 2101-082-49-011
Mauriello Planning Group
Table of Contents
Introduction and Request
Background and Justification
Zoning Analysis
Criteria for Review
Conclusion
Adjacent Properties
Appendix A: Background and History
3
4
6
7
9
10
11
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 I, 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.
C7
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 1 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
4
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.
5
Zoning Analysis
Location: 302 Mill Creek Circle / Lot 7, Block I ,Vail Village I st Filing
Zoning: Two - Family Primary /Secondary
Lot Size: 0.293 acres / 12,763 sq. ft.
Zoning Regulation
Allowed
Existing
Density
I dwelling unit
2 dwelling units
EHU
I Type I EHU
none
GRFA
4,227 sq. ft.*
4,227 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.
Zoning Regulation
NO EHU
WITH TYPE I
WITH DENSITY
EHU
VARIANCE
Density
I dwelling unit
I dwelling unit plus 1
2 dwelling units
EHU
GRFA
5,649 sq. ft.
5,649 sq. ft. plus 550 sq.
5,649 sq. ft.
ft. for EHU = 6,199 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.
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.
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:
I. 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 aType 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 aType 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 I 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:
I. 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..."
7
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
CAULKINSVAIL 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
416VAILVALLEY DR
VAIL, CO 81657
Appendix A: Background and History
11
DEVLIN LAW GROUP, LLC
DENVER / VAIL
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 $250. But they had to start construction on it within a year
So Vail [Associates] didn't give them a deed right away; they had a lease. When they started
construction at some point in time after that [Vail Associates] would give them a deed and then
they'd go out and borrow money. That first year we probably had in round numbers about 25
houses built — some quite modest, some a little bigger — but everything in those early days was
pretty modest. Nothing terribly fancy. "1
Many of those early investors chose to purchase lots on what became Mill Creek Circle,
Forest Road, and Beaver Dam Road. In 1962, land owners Vail Associates, Ltd., and Vail Village
Inn, Ltd., recorded Protective Covenants for Vail Village First Filing, which provided, among
other things, the right to build "not more than two separate apartments "2:
' See The Vail Business Journal, Vail's 50th: A Conversation with Rod Slifer, by David O. Williams,
December 13, 2012.
2 Protective Covenants, Vail Village First Filing, Eagle County Colorado, recorded August 10, 1962, at
Book 174, Page 179.
DEVLIN LAW GROUP, LLC
201 Columbine Street, Suite #300 Denver, Colorado 80206
Office: (303) 780 -4947; Mobile: (303) 358 -0742
Email: tdevlin devlawgroun com
Town of Vail
December 16, 2013
Page #2
Es
Wh& Inndeo in VAI Vi llftga, Vird h Z"lling, 4hh ll ;
:2a qn r.$ Zar tha folicu rg pur,pau rtd
241b 7a Gpt4 ' Ln E1aclen i and 7 mbail. ka an ed ani}
P.-LvQto r en i4ar -c eip i Qa pb tq 4pphtzitra rmir *ir!! e. th4D tI q P, 4;P4hL;ht-P
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
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.
Town of Vail
December 16, 2013
Page #3
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. .. "$ 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.I I
Section 3.500 Development Standards
3.501 Lot Area and Site Dimensions. The minimum lot or site area shall be
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.
Town of Vail
December 16, 2013
Page #4
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
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.
Town of Vail
December 16, 2013
Page #5
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
20 Ordinance No. 12, Series of 1978, Section 2, Section 18.13.080, Density Control.
Town of Vail
December 16, 2013
Page #6
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
21 Ordinance No. 22, Series of 1979, Introductory Recitals, and Section 1, §18.13.080, Density Control.
Town of Vail
December 16, 2013
Page #7
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
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.
Town of Vail
December 16, 2013
Page #8
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
IO.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 #9
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
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.
Town of Vail
December 16, 2013
Page #10
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. 1132
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
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.
Town of Vail
December 16, 2013
Page #11
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; §18.13.08013 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... 1134 Some of the "incentives" that were included can be seen the following table:
12 -13 -4: REQUIREMENTS BY EMPLOYEE NGUSING UNIT TYPE: i C7
EXU
2onlrxg Uhtricta
PanmMetl By RlgM
Owrerahlpr
Trerreference
Adtlltlenel
GRFA
A Redueetlw
Le ird— eAran
CredlM sego
Requirement
Par 1
un
NGRFA
OI AI EMU
FD—fty
Type
Prlmarylseeondary
The EHU may he sold or
The EHU is
Site Goverage:
All owed 300 sq. It.ofgarage area per
Per ohamer 10 of this the as
hl
The EHU Is
residential,
hanfmad separately
entitled to an
The site is entitled to
snocaed vehicle space ata maximum
adwelling unit
allowed as
Twe- family residential
ar banal
an additional 5% of
of2 parking spaces (600 sq. f.).
asecond
550 W. fl.
site coverage for the
unit on the
(Onlycnlo easthan
GRFA
EHU.
All units net constructed wfth a garage
pmpedy.
14,000 sq. ft, in sizej
deducson ,.
shall be required a minimum 75 sq, ft.
Landscape Area:
of storage area in addition to normal
The site lsentitled m a
closet space. This 75 sq. fl. shall be
reduction of
credit For storage only.
landscape area by 5%
(reduced m 55% of
site area) for the EHU,
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 sauare feet of GRFA: site coveraize is permitted to be increased
by 5% to accommodate the EHU. and a 5% reduction in reauired 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
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.
Town of Vail
December 16, 2013
Page #12
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) Distr1Ct.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.
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.
Town of Vail
December 16, 2013
Page #13
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] /
Lot Size
Address
(per Eagle County Assessor's Office)
Lot 1/
13,068 Sq. Ft.
325 Mill Creek Cir.
(0.300 AC)
Lot 2/
12,066 Sq. Ft.
315 Mill Creek Cir.
(0.277 AC)
Lot 3/
12,545 Sq. Ft.
303 Mill Creek Cir.
(0.288 AC)
Lot 4/
12,240 Sq. Ft.
328 Mill Creek Cir.
(0.281 AC)
Lot 51
11,717 Sq. Ft.
312 Mill Creek Cir.
(0.269 AC)
Lot 6/
16,161 Sq. Ft.
304 Mill Creek Cir.
(0.371 AC)
Lot 7/ APPLICANT
12,763 Sq. Ft.
302 Mill Creek Cir.
(0.293 AC)
Lot 8/
12,894 Sq. Ft.
392 Mill Creek Cir.
(0.296 AC)
Lot 9/
13,982 Sq. Ft.
362 Mill Creek Cir.
(0.321 AC)
Lot 10/
17,641 Sq. Ft.
342 Mill Creek Cir.
(0.405 AC)
40 Town Code §12- 13 -3A.2 (2013).
Town of Vail
December 16, 2013
Page #14
Lot # [Vail Village First Filing, Block 1] /
Lot Size
Address
(per Eagle County Assessor's Office)
Lot 11/
12,414 Sq. Ft.
332 Mill Creek Cir.
(0.285 AC)
Lot 13/
15,420 Sq. Ft.
325 Mill Creek Cir.
(0.354 AC)
Lot 14/
23,217 Sq. Ft.
345 Mill Creek Cir.
(0.533 AC)
Lot 151
29,620 Sq. Ft.
353 Mill Creek Cir.
(0.680 AC)
Lot 16/
19,384 Sq. Ft.
365 Mill Creek Cir.
(0.445 AC)
Lot IT
18,513 Sq. Ft.
375 Mill Creek Cir.
(0.425 AC)
Lot 18/
17,075 Sq. Ft.
385 Mill Creek Cir.
(0.392 AC)
Lot 19/
18,905 Sq. Ft.
395 Mill Creek Cir.
(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 #15
i
i
-I v
e:.
4
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
41 See Footnotes 40 -41 above.
Y
i
4�
D
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
41 See Footnotes 40 -41 above.
Town of Vail
December 16, 2013
Page #16
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
,x- lo e. 74. ;�,
Timothy N. Devlin, Esq.
Vail Village Filing 1, Block 1, Lot 7
(302 Mill Creek Circle)
Subject Property
e This map was created by the TOwa of Vail GIS Team. Use of this map shoultl be for general proposes only. The Town of Vail does not warrant the aeemary of the information —bined herein.
Feet where shown, parcel line work is approximate)
0 50 100 150 200
Last Modified: January 9, 2014 TOWN OF VAIL i