HomeMy WebLinkAboutLttr to G Ruther 2-3-14
BUS_RE/5099551.2
James R. Wear
Direct Dial # (970) 790-1603
E-mail: jwear@shermanhoward.com February 3, 2014
VIA FIRST CLASS MAIL Mr. George Ruther, AICP, Director Community Development Department Town of Vail 75 S. Frontage Rd. Vail, Colorado 81657 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 Property ). 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. DorØ, as Trustee of the William J. DorØ Living Trust,1 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. DorØ, as Trustee of the William J. DorØ 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.
Sherman & Howard L.L.C.
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
WWW.SHERMANHOWARD.COM
Sherman & Howard L.L.C.
Mr. George Ruther, AICP, Director February 3, 2014 Page 2
BUS_RE/5099551.2
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. Since the execution and recording of the Covenant was a requirement of the Town and the Town is the beneficiary of the Covenant, the Town has the right to vacate and nullify the Covenant. 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.
James R. Wear
Cc: William Dor Alejandro Rojas