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HomeMy WebLinkAboutRequest to Remove Declarartion of Covenant 100 Vail Road Lot 35 Block 7 Vail Village First Fling 0214TO: Vail Town Council FROM: Community Development Department DATE: February 18, 2014 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 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). III. 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. III. RECOMMENDATION The Community Development Department recommends the Vail Town Council removes the declaration of covenant. Staff’s recommendation is based upon the following considerations: 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.”