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HomeMy WebLinkAbout2020-30 EHU Exchange 1225 Westhaven Lane AResolution No.30, Series of 2020 RESOLUTION NO. 30 SERIES OF 2020 A RESOLUTION APPROVING A MUTUAL RELEASE OF RESTRICTIVE COVENANT BETWEEN THE TOWN OF VAIL AND SCOTT E. AND RACHEL A. WAGNER; AND SETTING FORTH DETAILS IN REGARD THERETO. in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and WHEREAS, the members of the Town Coun been duly elected and qualified; WHEREAS, Scott E. and Rachel A. Wagner are the owners of that certain property Vail, Eagle County, Colorado, with a physical address of 1225 Westhaven Drive A, Vail, Colorado 81657; WHEREAS, a restrictive cov the Property for the sole purpose of creating an employee housing unit within the Town of Vail as provided in Chapter 12-13, Vail Town Code; WHEREAS, said Restrictive Covenant was recorded against the Property in the records of the Clerk and Recorder of Eagle County, Colorado on May 20, 1997 at Reception No. 623181; WHEREAS, The Town is the beneficiary of said Restrictive Covenant; WHEREAS, Releasee and the Town, pursuant to Section 12-13-5 of the Vail Town Code, wish to mutually release the Restrictive Covenant in exchange for the placement of an employee housing deed restriction on Pitkin Creek Park Phase I Unit 4- B / 3941 Bighorn Road, Unit 4-B, Vail, Co WHEREAS, the Vail Local Housing Authority has reviewed the request and forwards its recommendation of approval to the Vail Town Council. NOW, THEREFORE, be it resolved by the Town Council of the Town of Vail, Colorado: Section 1. The Council hereby approves the Mutual Release of Restrictive Covenant and authorizes the Town Manager to execute the Mutual Release of Restrictive Covenant Agreement on behalf of the Town in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. Resolution No.30, Series of 2020 Section 2. This Resolution shall take effect immediately upon the recording of an employee housing deed restriction in a form approved by the Town on the Proposed EHU. INTRODUCED, READ, APPROVED AND ADOPTED this 4th day of August, 2020. ATTEST: Dave Chapin, Mayor Tammy Nagel, Town Clerk Resolution No.30, Series of 2020 EXHIBIT A Page 1 of 2 MUTUAL RELEASE OF RESTRICTIVE COVENANT THIS RELEASE is made and entered into this 4th day of August, 2020, by and between Scott E. and Rachel A. Wagner, hereinafter referred to as “RELEASEE” and the Town of Vail, a Colorado Municipal Corporation, hereinafter referred to as “RELEASOR”. WHEREAS, Releasee is the owner of that certain property (“the Property”) located within the Town of Vail, Eagle County, Colorado, with a physical address of 1225 Westhaven Drive A, Vail, Colorado 81657; WHEREAS, a restrictive covenant (“Restrictive Covenant”) was recorded against the Property for the sole purpose of creating an employee housing unit within the Town of Vail as provided in Chapter 12-13, Vail Town Code; WHEREAS, said Restrictive Covenant was recorded against the Property in the records of the Clerk and Recorder of Eagle County, Colorado on May 20, 1997, at Reception No. 623181; WHEREAS, Releasor is the beneficiary of said Restrictive Covenant; and WHEREAS, at the public meeting held on August 4, 2020, and pursuant to Section 12-13- 5 of the Vail Town Code, the Town Council of the Town of Vail, Colorado (“Town Council”) approved the release of the Restrictive Covenant in exchange for the placement of an employee housing deed restriction on Pitkin Creek Park Phase I Unit 4-B / 3941 Bighorn Road, Unit 4-B, Vail, Colorado 81657. NOW THEREFORE, in consideration of the mutual terms and provisions herein below set forth, and other good and valuable consideration, the receipt and adequacy of which is hereby confessed and acknowledged to, the parties agree: 1. The Town Council approved the release of the Restrictive Covenant on August 4, 2020. 2. Releasor hereby terminates the Restrictive Covenant recorded against the Property in the office of the Clerk and Recorder of Eagle County, Colorado at Reception No. 623181 dated at May 20, 1997 and hereby releases Releasee from all duties and obligations of said Restrictive Covenant. 3. Upon execution of the Release, Releasee shall be free to sell, devise, gift, lease, or otherwise dispose of the Property at will, at any time, and to any buyer or tenant with no further restrictions imposed by Releasor. 4. Upon execution of the Release, Releasee shall be free to reside in and use the Property with no further restrictions imposed by the Releasor. 5. This Release shall be permanent and shall run with the land and shall not be waived, abandoned, amended, or terminated and shall inure to the benefit and be binding upon the parties, their respective grantees, successors, or assigns. 6. This Release constitutes the entire agreement between the parties with respect to the subject matter hereof, and there are no inducements, representations, warranties, or Page 2 of 2 understandings that do not appear within the terms and provisions of the Release. This Release may be modified only in writing, signed by both parties. 7. This release shall be recorded in the real property records of Eagle County, Colorado and the provisions of this Release shall be governed by the laws of the State of Colorado, including any action arising out of this Release. 8. If any provisions of this Release shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Release has been negotiated by the parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. RELEASOR: TOWN OF VAIL, a Colorado Municipal Corporation By: _____________________________________ Scott Robson, Town Manager ATTEST: _________________________________________ Tammy Nagel, Town Clerk RELEASEE: By: ___________________________________ __________________________________ Scott E. Wagner Rachel A. Wagner STATE OF _____________ ) ) ss COUNTY OF ____________ ) The foregoing instrument was acknowledged before me this ____ day of _________, 20 by . Notary Public: ______________________________ My Commission Expires: ______________________ To: Vail Town Council From: George Ruther, Housing Director Date: August 4, 2020 Subject: Resolution No. 30, Series of 2020, authorizing the Town Manager to execute a deed restriction release and approving the request for an exchange of an employee housing unit, pursuant to Section 12-13-5, Employee Housing Unit Exchange Program, Vail Town Code, to allow for the release of an employee housing unit deed restriction, located at Lot 43, Parcel A, Glen Lyon Subdivision/1225 Westhaven Lane, Unit A, in exchange for the recording of an employee housing deed restriction on a dwelling unit located at Unit 4B, Pitkin Creek Park Condominiums/3941 Bighorn Road and a $76,053 fee-in-lieu payment. I. HOUSING AUTHORITY RECOMMENDATION The Vail Local Housing Authority recommends 3-1 (Moffet opposed) that the Vail Town Council approve the requested release and exchange of an employee housing unit deed restriction. In doing so, the Authority further unanimously recommends the Vail Town Council take immediate action to review and update the fee-in-lieu mitigation rate payment amounts for both inclusionary zoning and commercial linkage requirements. These payment amounts have not been reviewed or updated since their original adoption. As such, it is likely a change in the payment amounts would ensure that the amounts reflect current costs. If approved, the Town of Vail will receive more than 1,000 square feet of deed-restricted square footage for the 500 square feet deed-restricted today. The 1,000 square feet includes a new deed restriction on a one bedroom, 763 square foot condominium at Pitkin Creek Park and $76,053 in fee-in-lieu payment to the Town’s Housing Mitigation Fund. The fee-in-lieu payment will be used to acquire at least one additional deed restriction. In the end, the Town benefits by more than doubling the amount of deed- restricted square footage, getting two deed restrictions for one, all at no cost to the taxpayer. Town of Vail Page 2 Pursuant to the terms of the deed restriction release agreement, the applicant is required to remove the kitchen facilities from the exchange EHU at 1225 Westhaven Lane, prior to recording the release with the Eagle County Clerk and Recorder’s Office. The Vail Local Housing Authority recommends the following motion be made: “The Vail Town Council authorizes the Town Manager to execute a deed restriction release and approving the request for an exchange of an employee housing unit, pursuant to Section 12-13-5, Employee Housing Unit Exchange Program, Vail Town Code, to allow for the release of an employee housing unit located at Lot 43, Parcel A, Glen Lyon Subdivision/1225 Westhaven Lane, Unit A, in exchange for the recording of an employee housing deed restriction on a dwelling unit located at Unit 4B, Pitkin Creek Park Condominiums/3941 Bighorn Road and a $76,053 fee-in-lieu payment, and setting forth details in regard thereto.” II. ATTACHMENTS A. Resolution No. 30, Series of 2020, dated August 4, 2020 B. Staff Memorandum to the Vail Local Housing Authority, dated July 28, 2020 To: Vail Local Housing Authority From: Lynne Campbell, Housing Coordinator Date: July 28, 2020 Subject: A request for a recommendation to the Vail Town Council for the release of a deed-restriction from an existing employee housing unit, located at 1225 A Westhaven Lane / Glen Lyon Subdivision Lot 43 Parcel A ("exchange EHU") in exchange for the recording of a new employee housing deed-restriction on the property located at 3941 Bighorn Road, Unit 4B / Pitkin Creek Park Condominiums, Unit 4B ("proposed EHU"), pursuant to Section 12-13-5 Employee Housing Unit Deed Restriction Exchange Program, Vail Town Code. Applicant: Scott and Rachel Wagner I. DESCRIPTION OF REQUEST The applicants, Scott and Rachel Wagner, have requested to release a deed- restriction from an existing employee housing unit, located at 1225 A Westhaven Lane / Glen Lyon Subdivision Lot 43 Parcel A ("exchange EHU") in exchange for the recording of a new employee housing deed-restriction on the property located at 3941 Bighorn Road, Unit 4B / Pitkin Creek Park Condominiums, Unit 4B ("proposed EHU"), pursuant to Section 12-13-5 Employee Housing Unit Deed Restriction Exchange Program, Vail Town Code. II. REVIEW CRITERIA Before acting on an employee housing deed-restriction exchange application, the Vail Local Housing Authority and Vail Town Council shall consider the following criteria with respect to the application: 1. The exchange EHU shall not be part of any employee housing project developed or deed-restricted (in part or in whole) by the town of Vail. The exchange EHU shall not be part of any on site employee housing mitigation required by inclusionary zoning, commercial linkage, or as part of an approved development plan. Town of Vail Page 2 The exchange EHU was built in 1996 and a Type II Deed-Restriction was recorded on May 20, 1997. The owner is required to rent to a qualified tenant and submit an annual affidavit indicating whether the unit is rented to a qualified tenant. Pursuant to the terms of the deed-restriction, the EHU shall be leased and occupied by tenants who are full-time employees who work in Eagle County. The EHU is neither part of any employee housing project developed nor is it part of any required mitigation. Therefore, staff believes the proposed EHU exchange request conforms to this criterion. 2. The exchange EHU shall not be part of any on site employee housing mitigation required by inclusionary zoning, commercial linkage, or as part of an approved development plan. The EHU is not part of an approved development plan obligation. Therefore, staff believes this exchange EHU complies with the applicable requirements. 3. The property that includes the exchange EHU shall comply with the prescribed development standards (density controls including GRFA and number of units, site coverage, landscaping and parking requirements, etc.), as outlined in the applicable zone district section of this title, upon exchange of the deed restrictions. The exchange EHU is located within Special Development District No. 4 (SDD #4) Cascade Village and Type II employee housing units are an allowed use, subject to the issuance of conditional use permit. According to the Town's Planning Department, 1225 Westhaven Lane A complies with prescribed development standards of the and meets the required criteria related to participation in the exchange program. If approved, the applicant shall be required to remove the kitchen facilities within the unit to eliminate a third dwelling unit on the property. This condition shall be met prior to releasing the deed restriction from the property located at 1225 Westhaven Lane, Unit A. 4. The proposed EHU(s) shall be within a homeowners' association that does not preclude deed-restricted units, does not have a right of first refusal, does not have right to approve the sale or the sale contract, or have any other requirements deemed to be similarly restrictive by the administrator. The proposed EHU is not located within a homeowner’s association containing any above listed restrictions, and therefore, staff believes this proposed EHU complies with the criteria. Town of Vail Page 3 5. The proposed EHU shall comply with the minimum size requirements shown in table 13-2 of this section. If the exchange EHU is outside of the commercial job core and the proposed EHU(s) is outside of the commercial job core, the gross residential floor area (GRFA) of the proposed EHU(s) shall be a minimum of two (2) times the gross residential floor area (GRFA) of the exchange EHU. The exchange EHU is located outside the mapped commercial job core area and the proposed EHU is outside the commercial job core area. Therefore, the proposed EHU shall meet the criteria listed below as noted in Town Code 12-13- 5 Section 3, Exchange Rate For Proposed EHUs: 3d. If the exchange EHU is outside of the commercial job core and the proposed EHU(s) is outside of the commercial job core, the gross residential floor area (GRFA) of the proposed EHU(s) shall be a minimum of two (2) times the gross residential floor area (GRFA) of the exchange EHU. The proposed EHU is located outside the commercial job core and contains 763 square feet of GRFA. The 763 square feet meets the minimum required size of a one bedroom unit. However, the required GRFA for the proposed EHU is 1,000 square feet, or two times the size of the exchange EHU. The proposed EHU is short 237 square feet requiring a fee-in-lieu payment of $76,053 to satisfy the exchange unit’s requirement. Current fee-in-lieu rate is $320.90 per required square foot. (237 square feet X $320.90 per square foot = $76,053) TABLE 13-2 MINIMUM SIZE OF PROPOSED EHUs Type Of Unit Minimum Size GRFA) Studio 438 square feet 1 bedroom 613 square feet 2 bedrooms 788 square feet 3+ bedrooms 1,225 square feet 6. The proposed EHU shall contain a kitchen facility or kitchenette and a bathroom. The proposed EHU contains a full kitchen facility, and therefore, meets the criteria. Town of Vail Page 4 7. The property on which the proposed EHU is located shall comply with chapter 10, "Off Street Parking And Loading", of this title. The proposed EHU has 2 surface parking spots and complies with chapter 10. 8. The proposed EHU shall have its own entrance. There shall be no interior access from the proposed EHU to any dwelling unit to which it may be attached. The proposed EHU has its own entrance into a 1 bedroom, 1 bathroom condominium residence. Staff has confirmed this meets the proposed criteria. III. ATTACHMENTS Owner’s Request From:George Ruther To:Lynne Campbell Subject:Fwd: The process with the TOV .... Date:Wednesday, July 22, 2020 5:33:51 AM Good Morning - See attached EHU Exchange request. Let’s discuss later today. Thanks, George Ruther, AICP Director of Housing Town of Vail (970) 376-2675 Sent from my iPad Begin forwarded message: From: Scott Wagner <Scott@WAGNERS.WS> Date: July 19, 2020 at 9:02:26 PM MDT To: George Ruther <GRuther@vailgov.com> Subject: FW:  The process with the TOV ....  Hi George, We are working with Jim Rapp for the Vail in Deed program. Can you look at the email from his Realtor bellow and let me know if this is correct? Scott Wagner 303-915-6006 From: JAMES RAPP <jamesrapp69@msn.com> Sent: Saturday, July 18, 2020 10:54 AM To: Scott Wagner <Scott@WAGNERS.WS>; betseyinvail <betseyinvail@yahoo.com> Subject: FW: The process with the TOV .... Scott hello, Here is an e-mail the realtor just sent sent me on the process…… From: Elizabeth Clarke Sent: Saturday, July 18, 2020 10:47 AM To: JAMES RAPP Subject: The process with the TOV .... The process as I understand after speaking with Lynne yesterday..... This is a "process", not difficult but more of a formality going through the proper channels. First, Scott needs to write a letter to the Housing Authority requesting a release of the EHU on the Wagner property with the deed restriction being placed on a "qualified property", i.e., Pitkin property within the TOV. Hopefully, we will have Pitkin under contract and can provide the offer with his letter. His letter needs to get to the Housing Authority by 7/23 in order to be place on their 'agenda' for their next meeting on 7/28. At this meeting they will review the request, the Pitkin property, and make a recommendation to the Town Council. This will then be placed on the Town Council's agenda for their 8/4 meeting. (if Scott misses the 7/23 timeline, everything moves back two weeks and the next TOV meeting would occur on 8/18). It is the TOV's Town Council who makes the decision to authorize the transfer. At the 8/4 TOV meeting, the Town Council will review the Wagner's request and review the recommendation from the Housing Authority. Once approved, they will issue a "resolution " and the process of transferring the EHU to the Pitkin property can take place at the closing. Once this happens at closing, the release of the EHU on the Wagner property will be recorded as will the EHU deed restriction on the Pitkin Property. Betsey.