HomeMy WebLinkAbout2020-48 Authorizing the Exercise of the Town's Eminent Domain Authority to Acquire Open Space Adjacent to Gore CreekResolution No. 48, Series of 2020
RESOLUTION NO. 48
Series 2020
A RESOLUTION OF THE VAIL TOWN COUNCIL AUTHORIZING THE
EXERCISE OF THE TOWN’S EMINENT DOMAIN AUTHORITY TO
ACQUIRE OPEN SPACE ADJACENT TO GORE CREEK
WHEREAS, the Town of Vail, Colorado (the “Town”) possesses the power of
eminent domain pursuant to Article II, § 15 and Article XX, §§ 1 and 6 of the Colorado
Constitution, Sections 1.2 and 13.11 of the Town’s Home Rule Charter, C.R.S. § 38-1-
101, et seq., C.R.S. § 38-6-101, et seq., C.R.S. § 31-25-201, et seq., and C.R.S. § 29-7-
104, et seq.;
WHEREAS, the Town may exercise the power of eminent domain for the public
purpose of acquiring open space;
WHEREAS, in 1999, Vail Resorts conveyed to the Town a fee interest in Tract C,
Vail Village, Eleventh Filing ("Tract C"), described in the recorded plat for Tract C, a copy
of which is attached hereto as Exhibit 1;
WHEREAS, when the Town acquired Tract C, the Protective Covenants of Vail
Village Eleventh Filing, a copy of which is attached hereto as Exhibit 2 (the "Protective
Covenants"), limited the use of Tract C to natural open space;
WHEREAS, Tract C generally follows the banks of Gore Creek;
WHEREAS, in 2015, the Town adopted Chapter 14 of Title 5 of the Vail Town Code
(the "Stream Tract Protection Ordinance") to regulate sensitive stream tract areas in the
Town, prohibit private encroachments in such areas, and ensure that such areas remain
natural open space;
WHEREAS, in 2016, the Town approved the Gore Creek Action Plan to address
water quality impairments and aquatic health issues affecting Gore Creek and its
tributaries and to protect riparian and streamside vegetation;
WHEREAS, in 2017, 18 years after the Town acquired Tract C, 2 years after the
Town adopted the Stream Tract Protection Ordinance, 1 year after the Town approved
the Gore Creek Action Plan, and without the Town's consent, the property owners in the
Eleventh Filing amended the Protective Covenants to expand the allowed uses in Tract
C to allow for private encroachments and the maintenance of non-native vegetation;
WHEREAS, in order to preserve Tract C as natural open space that is devoid of
any privately-owned improvements or non-native vegetation, as originally intended, the
Town now seeks to remove the Protective Covenants from Tract C and acquire
unencumbered title to Tract C;
Resolution No. 48, Series of 2020
WHEREAS, C.R.S. § 38-1-105 (5) authorizes the Town to condemn all property
interests in Tract C held by other persons; and
WHEREAS, the Town’s acquisition of an unencumbered fee interest in Tract C for
its preservation as natural open space is necessary, serves a public purpose, and is
consistent with the Gore Creek Action Plan and other Town efforts to restore Gore Creek
and its tributaries and protect sensitive riparian landscapes.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL:
Section 1. The above recitals are incorporated herein by reference and adopted
as findings of the Town Council.
Section 2. The term “Tract C” means the real property more particularly
described in the attached Exhibit 1, or certain interests in same, which are necessary for
Tract C to remain natural open space.
Section 3. The Town Council hereby finds the acquisition of an unencumbered
fee interest in Tract C will serve a proper, public and municipal purpose and use, and that
such acquisition is necessary and essential to this public purpose and use. The Town
Council hereby declares its intent to acquire an unencumbered fee interest in Tract C for
the purposes stated herein and, if necessary, to do so through the exercise of the power
of eminent domain.
Section 4. The Town Manager, the Town Attorney, the Town Manager’s
designated representative(s), and any and all persons retained or employed by the Town
in the prosecution of this matter are hereby directed to comply with all notice and good
faith negotiation requirements set forth in C.R.S. § 38-1-101, et seq.
Section 5. The Town Manager is authorized to make reasonable and good faith
offers to offers to purchase from the affected landowners the necessary interests in Tract
C, and the Town Manager is further authorized to execute agreements for the acquisition
of same.
Section 6. If, after engaging in good-faith negotiations, the Town is unable to
acquire the necessary property rights, the Town Attorney and the Town's special counsel
are hereby authorized to institute and prosecute eminent domain proceedings in the name
of the Town so as to acquire an unencumbered fee interest in Tract C by condemnation.
In the prosecution of any eminent domain actions to acquire an unencumbered fee
interest in Tract C, the Town shall have and retain all rights and powers lawfully delegated
to it by Article II, § 15 and Article XX, §§ 1 and 6 of the Colorado Constitution, Sections
1.2 and 13.11 of the Town’s Home Rule Charter, C.R.S. § 38-1-101, et seq., C.R.S. §
38-6-101, et seq., C.R.S. § 31-25-201, et seq., and C.R.S. § 29-7-104, et seq.
Section 7. If eminent domain proceedings are instituted, the Town Manager or
designee, in consultation with the Town Attorney and the Town's special counsel, is
Resolution No. 48, Series of 2020
authorized to retain such expert witnesses, including appraisers, as the Town determines
are necessary for the eminent domain proceedings.
Section 8. The Town Manager or designee, in consultation with the Town
Attorney and the Town's special counsel, are hereby specifically authorized to make such
reasonable or necessary amendments and corrections to the terms and legal descriptions
of the property interests to be acquired, including authorization to include such additional
or other property rights necessary or desirable for the Town. The Town Manager and
Town Clerk are hereby authorized and directed to execute an acceptance of the interests
in real property when acquired.
Section 9. The Town Council hereby finds, determines and declares that this
Resolution is promulgated under the general police power of the Town, that it is adopted
for the health, safety and welfare of the public, and that this Resolution is necessary for
the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Resolution bears a rational relation
to the proper legislative object sought to be obtained.
Section 10. If any clause, sentence, paragraph or part of this Resolution or the
application thereof to any person or circumstances shall for any reason be adjudged by
a court of competent jurisdiction invalid, such judgment shall not affect application to other
persons or circumstances.
Section 11. This Resolution shall become effective immediately upon adoption.
INTRODUCED, READ, APPROVED AND ADOPTED this 17 th day of November
2020.
______________________________
Dave Chapin, Mayor
ATTEST:
____________________________
Tammy Nagel, Town Clerk
EXHIBIT 1
TO
VAIL TOWN COUNCIL RESOLUTION AUTHORIZING THE
EXERCISE OF THE TOWN’S EMINENT DOMAIN AUTHORITY
TO ACQUIRE OPEN SPACE ADJACENT TO GORE CREEK
TRACT C, VAIL VILLAGE, ELEVENTH FILING PLAT
EXHIBIT 2
TO
VAIL TOWN COUNCIL RESOLUTION AUTHORIZING THE
EXERCISE OF THE TOWN’S EMINENT DOMAIN AUTHORITY
TO ACQUIRE OPEN SPACE ADJACENT TO GORE CREEK
PROTECTIVE COVENANTS OF VAIL VILLAGE ELEVENTH
FILING (RECORDED JULY 7, 2017; AND JULY 26, 1971)