HomeMy WebLinkAboutVail Village Filing 1 Block 7 Lot 35 vacation of covenantTO
FROM: Community Development Department
DATE: February 18, 2014
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SUBJECT: A request for nullification and vacation of a declaration of covenant encumbering
100 Vail Road, Lot 35, Block 7, Vail Village First Filing, and setting forth details in
regard thereto.
Applicant: James Wear, on behalf of Alejandro Rojas.
Planner: George Ruther
I. DESCRIPTION OF REQUEST
The applicant, James Wear, representing Mr. Alejandro Rojas, is requesting the
nullification and vacation of a declaration of covenant encumbering the property located
at 100 Vail Road. The reason for the request is to facilitate a remodel of the existing
residential dwelling unit on the property. Mr. Rojas currently has the property under
contract for purchase contingent upon the resolution of the declaration of covenant
matter.
A letter dated January 30, 2014, from James R. Wear to Mr. George Ruther, setting
forth the reasons for making the request, has been attached for reference.
II. BACKGROUND
On April 21, 1978, the Planning and Environmental Commission (PEC) voted
unanimously to deny a variance for Gross Residential Floor Area (GRFA) for an
additional 2,944 square feet of GRFA and approved a setback variance to allow the
structure to encroach in the required setbacks based on the shape and topographical
constraints of the lot.
On May 2, 1978, the Webster's appealed the denial of the GRFA variance to the Town
Council. Upon review of the appeal, the Town Council found that the PEC
misinterpreted what areas of the house should and should not be counted towards
GRFA, such as the indoor swimming pool. The Town Council therefore, concluded the
GRFA variance was approximately 2,000 square feet less than what the Community
Development Department and the Planning and Environmental Commission had
determined the GRFA to be. Without finding a clear practical hardship, the Town
Council overturned the PEC's denial of a GRFA variance by a vote of 4 -1.
A condition of the Town Council's decision to overturn the PEC's earlier denial was that
a declaration of covenant be made and executed against the Lot (Lot 35, Block 7, Vail
Village First Filing) requiring
"any structure erected on said Lot shall be used only as a single family
residence with caretaker facilities, unless or until such limitation is
modified or removed by subsequent action of the Town Council of the
Town of Vail under procedures provided for granting variances under
Town Ordinance then in force and effect."
The reason for this declaration of covenant was that the Town Council found that a
recent down - zoning, in terms of allowable GRFA, was to control population by being
more prohibitive towards multiple dwelling units on a site. The feeling was that too often
multiple family dwelling units were being used as "crash pads ", where bedrooms were
over loaded with guests, causing undesired parking and traffic problems. The intent of
the down - zoning was not to punish those who wished to live in large houses, as
interpreted by the Town Council.
After hearing this interpretation, Mr. Webster offered the option to deed restrict the
property as means of preventing his property from contributing to a potential over
population problem. As a result, on May 31, 1978, Mrs. Elisabeth A. Webster signed a
Declaration of Covenant which restricted any structure on the property at 100 Vail Road
to a single family residence.
As executed and recorded, only the Town Council of the Town of Vail can modify or
remove the declaration of covenant on this property.
In 1982, construction on the single family dwelling unit was completed. According to
property records maintained by the Community Development Department, the single
family residence is approximately 8,142 square feet in size. Under current zoning
regulations, the property would be allowed approximately 7,653 square feet of GRFA.
Further analysis is needed to determine if the structure complies with the current GRFA
allowance, given the uncertainty of deductible GRFA on site (ie below grade).
ACTION REQUESTED
The Vail Town Council is being asked to remove and vacate the Declaration of
Covenant recorded at the Eagle County Clerk and Recorder's Office at Reception No.
172727.
RECOMMENDATION
The Community Development Department recommends the Vail Town Council removes
the declaration of covenant. Staff's recommendation is based upon the following
considerations:
Town of Vail Page 2
1. According to the Official Zoning Map of the Town of Vail, the Lot is zoned
Two - Family Primary Secondary Residential District.
2. The size of the Lot conforms to the minimum lot size requirements established
for the District.
3. The Gross Residential Floor Area regulations have been amended since the
single family residence was completed on the Lot in 1982.
4. Chapter 18 of the Zoning Regulations of the Town of Vail provides policy
direction for addressing non - conforming structures. The policy of the Town is to
permit non - conforming structures to be maintained but encourages non -
conformities to be discontinued, or minimized, when possible.
5. A remodel of the existing structure into a two family dwelling unit further
reduces any existing non - conformities with regard to density controls.
6. The fears of creating "crash pads" in Vail and over population are no longer
warranted.
7. A remodel of the existing structure on the Lot further facilitates the Towns use
of its right of way for the continuation of a pedestrian sidewalk along Vail Road.
Should the Vail Town Council choose to remove and vacate the Declaration of
Covenant, Staff recommends the Council pass the following motion:
"The Vail Town Council approves the applicant's request to remove and
vacate the Declaration of Covenant, recorded at Reception No. 12772, at
the Eagle County Clerk and Recorder's Office, on Lot 35, Block 7, Vail
Village First Filing, based upon the considerations outlined in the staff
memorandum, dated February 18, 2014 and instructs the Town Manager
to take the legal actions necessary to vacate the Declaration of Covenant
on behalf of the Town of Vail."
Town of Vail Page 3
Sherman & Howard L.L.C.
VIA FIRST CLASS MAIL
Mr. George Ruther, AICP, Director
Community Development Department
Town of Vail
75 S. Frontage Rd,
Vail, Colorado 81657
ATTORNEYS & COUNSELORS AT LAW
BROOKSIDE PARK, SUITE 210
37347 Highway 6
P.O. Box 5559
AVON, COLORADO 81620
TELEPHONE: (970) 476 -7646
FAX: (970) 476-7118
W W W.SHERMANHOWARD.COM
January 30, 2014
James R. Wear
Direct Dial H (970) 790 -1603
E -mail: Jwearashermanhoward.com
Re: Request for Nullification and Vacation of Declaration of Covenant Encumbering
100 Vail Road, Vail, Colorado
Dear Mr. Ruther:
As you know, my firm represents Mr. Alejandro Rojas, who is currently under contract to
purchase the above - described property (the "Pry "). The Property is encumbered by the
enclosed Declaration of Covenant recorded on October 6, 1978 at Reception No. 172727 in the
Eagle County Clerk and Recorder's Office (the "Covenant "). Per our earlier conversation, Mr.
Rojas, for himself and on behalf of the current owner of the Property, William J. Dore, as
Trustee of the William J. Dore Living Trust,' is requesting that the Town of Vail (the "Town ")
nullify and vacate the Covenant. Accordingly, pursuant to your suggestion that I submit this
request in writing, I am asking by this letter that the Vail Town Council (the "Council ") add the
above request to its February 18, 2014 Council meeting agenda. In addition, the remainder of
this letter sets forth our reasons supporting a decision by the Council to approve Mr. Rojas's
request,
To begin, the Covenant, dated 1978, provides that:
[a]ny structure erected on the [Property], pursuant to a variance granted by the
Town of Vail under the ordinances pertaining to gross residential floor area
shall be used only as a single family residence, with caretaker facilities, unless
or until such limitation is modified or removed by subsequent action of the
Town Council of the Town of Vail under procedures provided for granting
variances under Town Ordinances then in force and effect.
1 William J, Dord, as Trustee of the William J. Dord Living Trust, has authorized Mr. Rojas to make the request to
nullify and vacate the Covenant on his behalf pursuant to the enclosed authorization letter.
B US_RE/5099343.1
Sherman & Howard L.L.C.
Mr. George Ruther, AICP, Director
January 30, 2014
Page 2
According to the transcript for the Town council meeting of May 2, 1978, the execution
and recording of the Covenant was a condition that the Town council placed on a previous owner
of the Property in order to receive the Town's approval of GRFA and setback variances. As
such, the Covenant is private zoning effectively caused by the Town using a "spot" restrictive
covenant, a method which would not comply with the Town's current regulations for rezoning
property. (Vail Town Code § 12 -5 -3) The benefit of the current rezoning procedures can be seen
here in that, even though the Property is within a Two - Family Primary /Secondary Residential
(PS) zone district, which allows the building of a two - family residence without a variance from
the Town, a variance is still required under the Covenant to build a two - family residence. Not
only does this conflict with the Town's decision to include the Property and the lots surrounding
it within the PS Zoning District, thus encouraging the development of two - family residences, it
goes against the Town's intention that land use restrictions affecting properties within the Town
be harmonious with the Town's zoning regulations.
Furthermore, the density concerns behind the Covenant seem to be out -of -sync with the
density concerns of recent Town Councils, in that the Town council in 1978 sought to discourage
the increased density that would be caused by the development of two - family residences in the
area where the Property is located. Therefore, because the Covenant discourages development of
a two - family residence on the Property, a purpose that is not in line with the Town's current
zoning regulations or density concerns, the Town Council should approve our request to nullify
and vacate the Covenant.
Please call us at your convenience if you have any questions or would like to discuss the contents
of this letter.
Very truly yours,
SHERMAN & HOWARD, L.L.C.
f_Zr_ �
James R. Wear
e DECLARATION OF COVENANT
THIS DECLARATION =OF COVENANT is made.and.executed by
Elizabeth M. Webster, the owner of Lot 35 in Block 7 in Vail
Village First Filing, in the Town of Vail, Eagle County,
Colorado. in order to great6 a.coven,ant which shall •run with`
the said. described land', as follows`:
Any structure erected on the said Lot 35 in Block 7, .
Vail Village First °Filing, pursuant to a variance granted by
the Town of Vail under the ordinances pertaining to gross
' .•residential floor area shall be used only'-as a single family
resideneey with caretaker facilities, unless or!until such
h. limitation is modified or removed by subsequent.:action of the
Town Council of the Town of Vail under procedures provided
for granting variances under Town Ordinances then in force and
effect.
IN WITNESS WHEREOF, the said Elizabeth M. Webster has
set her hand this J� day of May, 1978,
Elizabeth M. Webster
STATE OF �iyLGtl )
'Y'U
COUNTY' OF Q )
The foregoing instrument was acknowledged before me
this .',3�5{ day of May, 1978, by Elizabeth M. Webster.
Witness my hand and official seal.
M, CATHLEEN WEISS
k1y' commission expires: NOTARY PUBLIC OF NW ARSEY
> 5-�" \ '• .r L�bu lai mbu 6, 1978 ..
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Public
M
STATE OF COLORADO
County of EAGLE
1 hereby certify that this tnstrwneO was
Filed for rerprd mr
00T O 1978
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