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2022-03-14 PEC
PLANNING AND ENVIRONMENTAL COMMISSION March 14, 2022, 1:00 PM Town Council Chambers and Virtual on Zoom 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN tXLOeRs9QKieoSkwg888Jw After registering, you will receive a confirmation email containing information about joining the webinar. 1.2. Attendance Present: Ludwig Kurz, Brian Gillette, Rollie Kjesbo, Karen Perez, Henry Pratt, Reid Phillips Absent:Jenn Bruno Site Visits 2.1. Four Seasons 3. Main Agenda 3.1. A request for a final recommendation to the Vail Town Council on a major 60 min. amendment to Special Development District No. 36, Four Seasons, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for reconfiguration of existing accommodation units, fractional fee units and dwelling units, and to amend the Employee Housing Plan to locate a portion of the existing onsite employee housing offsite, located at 1 Vail Road/Lots A -C, Vail Village Filing 2, and setting forth details in regard thereto. (PEC21-0059) Applicant: Four Seasons Resort, represented by Andrew Sellnau Planner: Jonathan Spence Planner Spence introduces the project and gives a short verbal introduction on what is included in the staff report. He goes over how since the 2017, when an SDD was last amended, there was only some buildout of what was approved at that time. The floor plans submitted with that amendment were not followed and other units were converted instead of the approved units. The applicant is proposing to amend the unit mix and move Employee Housing Units (EHU) off-site and out of town. The applicants are looking for a decision today, but staff is recommending this item be continued to a future meeting to allow for revision and a holistic approach to the EHU replacement. Perez wants to know why these units are underutilized. If we allow these units to move out of town how does the Town enforce the deed restrictions? Spence answers that deed restrictions and housing plans are usually very specific and include a specific unit in question but due to the size of the request that is not available at this time. Perez says she will wait until after the presentation to ask more questions. Kurz compliments the narrative and says he still has concerns to be brought up. Andrew Sellnau asks that Gary Barnett starts the presentation off. Gary Barnett goes over how they came to own the property, the improvements they made, and how it is now one of the finest hotels in Vail. One of the lingering issues they have not tackled is the EHUs on the site and how they have been underutilized. Employees come with families or pets and do not want to go in double occupancy rooms. They believe the units would be better utilized as hotel rooms and housing would be better for employees outside of town. They believe they've worked well with the town and would like approval as they are getting close to construction season. Sellnau starts off with the history of the SDD in 2001 and as amended in '03, '05, and '17. The EHUs were conceived and built to house 56 employees. They have not seen dorm rooms used in other areas of town. Town code currently has a minimum of 200SF per employee, these dorm rooms are 166SF per person and don't meet the current code as it was changed after their original approval. The dorms don't have kitchens, so employees have to cook in the microwave, or they can use the on-site employee cafeteria for their meals. Three meals are provided daily. The dorms have Jack/Jill bathrooms between units, so they service four employees per bathroom. Pre-covid and post-covid the dorm rooms are used and desired by J-1 program employees but have not been found to be desired by those that come with families or pets. These units are useful for visa employees throughout the year, so we plan to keep half of them on-site. The dorms will house about 12% of the employees who are more transient than the majority of employees. Where these units are not useful is for year-round and long- term employees. Looking at options for how to repurpose them the best way to develop them is into hotel rooms. If they were to be repurposed into alternative employee units, they would significantly restrict in unit configuration and number of replacements. The price has been maintained at $600/mo per employee and that amount has not changed over the years. Sellnau goes over the chart of the utilization. They have never been able to meet the requirement of having a full 56 employee occupying the units. They would like to see the utilization at 100% but are significantly short of that. They would like to achieve three things, come up with a solution of unit utilization, change the unit mix of the hotel, and find units off-site to meet their employee housing requirement. They've met with the VLHA on three occasions and made amendments to the plan accordingly. They've looked at this over the last five years as the units have not been fully occupied and believe that Vail has changed over the time since these units were built. That at one point Vail was very seasonal and hotels could run off of seasonal employees, but now that Vail is more year-round, a need for year-round employees and housing for them, has emerged. The proposal that has gone through three iterations. First was replacing the 16 units on site with 16 bedrooms offsite, from Vail all the way to Edwards through master leases on those bedrooms. The feedback was that master leases was not a good idea and difficult to ensure that was provided on a consistent basis. The second proposal was to replace 16 units with 16 deed restricted bedrooms. The VLHA said that the replacement should be based on employees not bedrooms. Now the latest, and current, iteration is to replace 32 employees with 32 employees based on the bedroom equivalency chart in town code. To abide by this chart the change from dorm rooms to bedrooms would come with an increase in square footage. Sellnau goes over how town code has changed since these units were originally developed and currently how larger square footage is required. In addition to looking at replacing these in the Town Four Seasons needs to look outside of the town in order to make this successful. They believe it would be a significant challenge to find this amount of deed restrictions within Town limits. Numbers from the Vail Indeed program are given in relation to the success of the program. The applicant believes Vail Health struggled with this and thus paid a fee in lieu. They relate to recent Town ballots and Council questions about whether money or units could be used or found outside of Town. Four Seasons is not proposing to remove all the units outside of town, just 16 out of 28. The other 12 would remain in the building. They plan to ask employees if they could purchase deed restrictions on the homes that the employees currently own. They could also try to provide a down payment assistance to employees that are currently renting so that they could move into a home that would then be deed restricted. If units were still needed, they would then go to outside owners to purchase a deed -restriction and, hopefully, getting a master lease on those units if they came up for rent. Approximately 70% of their employees live outside of Vail and in order to get deed restrictions on their homes Four Seasons would need to be able to provide deed restrictions outside of Vail. Limiting it to the Town of Vail would be unworkable and would not solve the underlying issue that is faced. They would like to find a solution immediately. The proposal is that up -to 32 employees would be able to be provided off-site. Sellnau gives examples of how the numbers would work on a rolling basis. As units are provided off-site the on-site equivalency would be able to be remodeled into accommodation units. The purpose of doing it through an SDD process is because they are in an S D D and must do so. It also allows for some leniency through the S D D process, and their proposal can be flexible. Goes over some of the criteria for an S D D amendment and how the proposal is meeting the stated criteria. Allowing them to go off-site would be a chance to preserve units in the valley for employees rather than short term rentals. They are unaware of other properties that have attempted to move this many units off-site and the challenges that provides. For that reason, using the deed -restriction program that requires a multiplier should not be applicable in this situation. More criteria are gone through and how this proposal is meeting them. Going from unoccupied and underutilized dorm rooms to new deed restricted housing will not increase foot or vehicle traffic. If the units were occupied it would be increasing traffic, but as they were empty, it would not actually increase the traffic from how it exists today. A slide is shown on the "summary and benefits" of the proposal. The net effect of this is that the square footage will increase and the misconception of how employees will be housed in the 2020s will be corrected. Applicant presentation is over. Perez found the presentation was disturbing as they have been checking the box that they were meeting the deed restriction when the units were sitting vacant for more than three months, which is the maximum allowed in Town Code. W by did they wait so long to come to the Town to fix the situation if it has been going on for five years? Sellnau says that they were preoccupied with fixing the interior issues to the hotel and to fix the other units to get ready to sell them and fix the unit mix from hotel keys to produce occupancy. They also thought perhaps that the underutilization was due to the lack of business at the hotel. But saw as business picked up the occupancy of the EHUs did not follow suit. Perez asks why not reconfigure the existing on-site EHUS. Perez is concerned with decreasing onsite and in the building housing. Have you used "best efforts" instead of what you said you did, which is that a "reasonable" effort was made? Sellnau said it is impossible to reconfigure the EHUs without significant reduction in hotel rooms. Perez says you're essentially asking for a variance. One of the things you're looking at is providing housing for families. Your units now would provide housing for two employees and you'll be going to one with a family and be housing less of your employees. It makes Perez uncomfortable that the Town would not have jurisdiction to require these deed restrictions to be followed. We would like you to go back and develop a more comprehensive plan that says we've approached employees and have solutions compared to just ideas of how this will be accomplished. The proposal is not sufficiently definite to show that you are able to meet the requirements. Barnett says that they would only end up with 3 or 4 units that would work with reconfiguration of the existing units. We still have on-site housing, but it would be a shame to not increase the value or utilization of the units by changing them. Perez says the housing crisis isn't new and that this should be an "and" solution and not an "either/or". Saying we aren't adding car trips because they are underutilized isn't an argument because the existing units should currently be utilized. Pratt asks if the SDD requirement is based on beds, units, or square footage? Spence says it mixed over time, it was based on square footage and beds with previous code language but was always an employee requirement in essence. The difference was how it was calculated. The choice to go from dorm to a larger unit with multiple bedrooms adds square footage per the table but is not above and beyond the requirement. Staff watched the VLHA meeting, and the VLHA said they would come back with a written recommendation, but that was not presented or approved at subsequent meetings. Pratt asks if the EHUS turned to AUs would be accessed by the existing balcony or from inside the hotel. Sellnau states that they would be accessed from the inside. Pratt, if the original requirement was based on square footage, and you remodeled to different units, but kept the same square footage, that he would be in favor of that approach. Sellnau, believes that is not how the SDD reads, and that they have to provide 28 type 3 EHUs and have to provide housing for 56 employees. The square footage amount was removed in 2003 and switched to employees. Pratt would be in favor of keeping the same square footage and just mixing the type of units provided. Sellnau seems to think there would be a significant requirement still left over. Perez adds that it would be an "and" solution and would be in addition to other units. Barnett asks whether that would be the best use or not. Perez adds that having fewer units occupied would be an improvement from where you said you are today. Barnett said that the costs could be too much for the benefit received. The remodel would cost too much for too little gain. Pratt asks about the multiplier for an EHU conversion as mentioned in the staff report. Spence adds that the deed restriction exchange program is there for the review of relocating existing EHUS to different location. He explains the idea of core area housing, core to core movement of EHUs is mitigated at a square foot ratio of 2:1, core to outside core is a ratio of 3:1 that must be provided. Kjesbo asks that when an application is proposing a major amendment to an SDD do they have to come into compliance with current code? Spence states that the current code is the barometer we use to review applications and make recommendations. Kjesbo, so the dorm units today wouldn't meet the requirement today? Spence, correct. Kjesbo was on PEC in '03 and'05. The benefits when PEC approved the Four Seasons S D D was the housing on site. Now the proposal is to move 57% as far down valley as Edwards. The rules have changed, and the adjustments needs to meet code. Highline was just approved with dorm rooms and if we approve this, they could come in with an application to do the same thing and move their required housing down valley. We approved 5000sf of housing on site and that was the major benefit of the SDD. Kurz was in this same chair 20 years ago when this was approved. He remembers how after serious negotiations the town was all happy with the results. It put employees in the middle of town with no need for cars and was self -sustained. They thought this would make a huge impact and he believes it did. We applaud you on sticking with those negotiations, but now we are turning this around by having people live as far away as Edwards. By moving more people down valley there is a direct impact with parking and transportation. I understand the upgrade of the units is important, but the proposed cost would be significant. He looked at the schedules and it could have been a management issue as to why employees didn't stay in the units. There could have been things done different to allow them to stay. Offsite as far as Edwards is not in the best interest of the community. He agrees that Vail has changed. Pratt asks about some of the AUs going to DUs and how the proposal states that they will be in the rental program, are they required to be? Sellnau responds that they are not required to be. Out of the 12 DUs from last time that were converted they have 11 that are still in the rental program. More guests are looking to stay in condos or homes similar to Airbnb and VRBO. They find that guests still like the amenities of the hotel mixed with those more livable units. The concern that the condos would be sitting there empty has not been realized. Pratt says how they alluded to Vail Health used the pay in lieu, and that should be an option here as well. Agrees that the remodel of the on-site units would be best. Phillips says how you've made no accommodation for employee parking on site. Sellnau employees either carpool or use public transportation. Phillips asks if employee parking is provided on site? Sellnau says there is no parking dedicated to employees on site. Phillips says that this proposal is basically to create an EHU pathway for some of your employees with houses down valley to restrict them as EHUS, correct? Sellnau says yes, they live there today but they could sell to someone else or create a VRBO tomorrow and it would no longer be employee housing. Perez, the proposal is basically to utilize what is already there, not adding the housing stock. Sellnau says that's true, but no guarantee that those non -deed restricted homes will not be sold to someone who is not an employee. We see tremendous turnover and people cycle from hotel to hotel and place to place. We see a fair amount of turnover year in and year out and if they relocate, they'll sell their home. Pratt, they could sell the deed restricted housing to people that work someone else, and that housing is gone for the Four Season and possibly the town. Sellnau whoever lives there would have to work in the town Perez it doesn't meet the Four Season obligation then. These units are for Four Seasons employees. Barnett, we intend to provide that housing to put less burden on the housing base in the Town of Vail. Pratt corrects the record that there was a housing problem 44 years ago, not just 20. Kjesbo concurs. Kurz asks how likely that inventory is available for deed restrictions? As a further example of another option Spence says you can buy a deed restriction or you can buy a house, put a deed restriction on it and hold the house as a financial asset and use it for employee housing. Barnett asks if anyone looked at what it costs to buy in Vail lately. Sellnau, said they could do that in the proposal as it is stated today. Perez says it would be more palatable. Barnett says it would be difficult to do except outside of Vail. Public comment is opened and closed with no public comment. Pratt clarifies that the motion is based on what was presented today. Karen Perez moved to send a recommendation of denial. Rollie Kjesbo seconded the motion and it passed (5-0). Abstain: (1) Gillette Absent: (1) Bruno 3.2. A request for a recommendation to the Vail Town Council for a Prescribed 45 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Planner Roy introduces the item and summarizes the changes from the previous meeting. Peter Wadden is the Watershed Education Coordinator. Wadden summarizes the changes made from the last meeting. He talks about the objectives of the stream corridor protection ordinance. He talks about the proposed corrections process. He talks about the policy in the Gore Creek Strategic Plan. He talks about the number of non -conforming buildings and acres protected under various scenarios. He talks about why staff recommends a 25' setback. Pratt asks about the corrections process. Is there a vehicle for the Town to challenge a surveyor's word? Wadden says at previous meetings the PEC had indicated that they did not want staff making qualitative reviews. Pratt notes that half of the increased acreage is on the tributaries. He would not have expected that. Kjesbo asks about a 20' setback on tributaries. It would take a lot of units out of non -conformity. A 25' setback on tributaries adds many more units into non -conformity. Wadden says it is a large number of units but a small number of structures. Roy says they are most likely multifamily structures which couldn't develop individually. Kjesbo says an individual owner can get permission to renovate their unit if their HOA agrees. Phillips thanks staff. The scientific recommendation is a 25' minimum setback, we're at the lowest threshold compared to other resort towns in the west. 20' on tributaries might be a palatable compromise. Given the corrections process, it is a stamped surveyor that must provide that information. The town could invalidate it if that requirement is not met. Some people will keep hiring surveyors until they get the right result. He would like a provision for peer review of a surveyor's result. Gillette thinks that might be available already. Staff already reviews applications for compliance, he doesn't think this is different. Wadden says in the larger code there is a mechanism for staff to challenge submitted surveys. Phillips is content as long as we have a backstop for these concerns. Pratt wants to protect public interests as well as private. Gillette clarifies the difference in non -conforming structures with 20' versus 25' setback. Pratt says Wadden has done an outstanding job with this. He hasn't previously seen a controversial application handled this well. Perez agrees. C -1-G, C-2-13, "lawfully existing" language. She still has concerns about the term "lawfully existing" in the proposed language, as well as the timeframe allowed to rebuild non -conforming structures. Roy says the proposed language is lawfully established. Perez asks about the recommended revision on 12-18-9? Roy says that it's in the memo to Town Council. Perez says the PEC recommendation was these be presented simultaneously. Roy says we will bring this to Town Council Perez asks if this is in the memo? Roy says it was attached to it. Pratt wants a strong recommendation to Council that they evaluate the one- year timeframe to rebuild in 12-18-9. Gillette says the language in the existing code is inadequate in describing what is allowed in setbacks. He thinks an amendment to that section of the code should be made. Roy clarifies the sections in Title 14 regarding setbacks that address these issues. Dick Parker is a resident of the Vail rowhouses. He thinks Wadden has done a good job with the presentation. He has one point of concern left. The proposal is talking about an aerial view and not topography. He asks for a corrections provision if the aerial view differs from the linear measurement and puts a building in non-compliance. Pratt asks about the science of aerial view versus linear measurement. Wadden says if we allow choice between these, applications could take the measurement which would reduce the area protected by this ordinance. Roy says setbacks look at a site plan view and not topography. It would be inconsistent with the rest of the town code to do so. Gillette says the 10' no mow zone will be better on a flat parcel versus steep Wayne Forman speaks on behalf of the One Willow Bridge Road HOA. They would like to see that it's not the intent of setbacks to be drawn from artificial discharges, just to make that clear. He asks about the language in D-1 regarding the owner. Kelli Rohrig owns a landscaping business in the valley. She says we need to protect our waterways. She has seen the degradation to the creek as a result of landscaping practices in the last two years. The setback will help this issue, she agrees with the proposed ordinance. Pratt asks about the code's definition of property owner. Roy says someone representing the property owners can act in this regard. Kjesbo says the health of Gore Creek is the most important factor. He would like Council to know the comment that it would be putting more units into non-compliance. But the protection of the creek is ultimately the most important thing. Kurz says we have been working to produce a perfect ordinance, which is impossible. What we have today gets the closest we can to that, it balances various interests and protects the waterways. Motion of approval with the comments from the PEC. The first is that the timeframe to rebuild a non -conforming structure in the event of calamity be extended from one year to two years. The second is that the proposed language "lawfully existing" be changed to "lawfully established". They also recommend being able to replace non -conforming structures in the event of a safety issue. Pratt says council should also be made aware of the number of non - conformities created. Rollie Kjesbo moved to recommendation of approval. Henry Pratt seconded the motion and it passed (6-0). Absent: (1) Bruno 3.3. A request for a recommendation to the Vail Town Council, pursuant to 20 min. Section 12-3-7, Amendment, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, to amend the regulations on landscaping to clarify how landscaping beneath decks should be considered and setting forth details in regard thereto. (PEC22- 0001) Applicant: Town of Vail Planner: Greg Roy Rollie Kjesbo moved to table to April 11, 2022. Henry Pratt seconded the motion and it passed (6-0). Absent: (1) Bruno 3.4. A request for a recommendation to the Vail Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, Title 12 Zoning Regulations, Vail Town Code, and Title 11, Sign Regulations, Vail Town Code to correct out of date references and setting forth details in regard thereto. (PEC22-0003) 2 min. The applicant requests this item be tabled to the March 28, 2022 meeting. Applicant: Town of Vail Planner: Jonathan Spence Rollie Kjesbo moved to table to April 11, 2022. Henry Pratt seconded the motion and it passed (6-0). Absent: (1) Bruno 4. Approval of Minutes 4.1. February 28, 2022 PEC Results Rollie Kjesbo moved to approve as presented. Karen Perez seconded the motion and it passed (6-0). Absent: (1) Bruno 5. Adjournment The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department Published in the /ail Daily March 11, 2022 VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: ITEM/TOPIC: Register in advance for this webinar: httr)s:Hus02web.zoom.us/webinar/register/WN tXL0eRs9QKieoSkwg888Jw After registering, you will receive a confirmation email containing information about joining the webinar. VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: ITEM/TOPIC: Attendance VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: ITEM/TOPIC: Four Seasons VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: March 14, 2022 ITEM/TOPIC: A requestfora final recommendation to the Vail Town Council on a majoramendment to Special Development District No. 36, Four Seasons, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for reconfiguration of existing accommodation units, fractional fee units and dwelling units, and to amend the Employee Housing Plan to locate a portion of the existing onsite employee housing offsite, located at 1 Vail Road/Lots A -C, Vail Village Filing 2, and setting forth details in regard thereto. (P E C21-0059) ATTACHM ENTS: File Name PEC21-0059 Four Seasons SDD Amendment Staff Memo.odf Attachment A. Project Narrative March 2022.odf Attachment B. Westernmost terminus of receiving area.odf Attachment C. Annual Verification for EHU.odf Presentation march 14.odf Description Staff Memorandum Attachment A. Project Narrative, March 2022 Attachment B. Westernmost terminus of receiving area Attachment C. Annual Verification for EHU Applicant Presentation TOWN OF VAIL ' Memorandum TO: Planning and Environmental Commission FROM: Community Development Department DATE: March 14, 2022 SUBJECT: A request for a recommendation to the Vail Town Council on a major amendment to Special Development District No. 36, Four Seasons, pursuant to Section 12- 9A-10, Amendment Procedures, Vail Town Code, to allow for reconfiguration of existing accommodation units, fractional fee units and dwelling units, and to amend the Employee Housing Plan to relocate a portion of the existing onsite employee housing offsite, located at 1 Vail Road/Lots A -C, Vail Village Filing 2, and setting forth details in regard thereto. (PEC21-0059) Applicant: Four Seasons Resort, represented by Andrew Sellnau Planner: Jonathan Spence SUMMARY The Four Seasons Resort is requesting a recommendation to the Vail Town Council for a major amendment to Special Development District (SDD) No. 36, Four Seasons, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for reconfiguration of existing accommodation units and dwelling units, and to amend the Employee Housing Plan to locate a portion of the existing onsite employee housing offsite and outside the municipal limits of the Town of Vail. Due to inconsistencies between the proposal and adopted policies, staff recommends that the application be continued at this time to allow additional work on a more comprehensive approach to the Four Season's housing mitigation requirements. Please see Section VIII of this report for specific staff recommendations. II. DESCRIPTION OF REQUEST The applicant, Four Seasons Resort, is requesting a major amendment to SDD No. 36, Four Seasons (Ord. No. 21, Series of 2017), in order to change the unit mix within the resort and to relocate a portion of the existing on-site employee housing to down -valley communities. Following the 2017 approval, the Four Seasons completed some of the proposed conversions, opted not to move forward with others and moved forward with other conversions that were not part of the approval. The following chart shows the approved, actual, and proposed unit mixes: Approved Unit Mix Actual Unit Mix 2021 Proposed Net Change 2017 Unit Mix 2022 from 2017 approval 130 AUs 117 AUs 123 AUs -7 AUs 28 Dwelling Units 28 Dwelling Units (with 32 Dwelling +4 DUs (with 18 AAUs) 15 AAUs) Units (with 15 - 3 AAUs AAUs 6 FFUs 6 FFUs 6 FFUs - 28 EHU 28 EHU 12 EHUs -16 EHUs The current proposal includes the following components: • Replacing up to 16 underutilized onsite deed -restricted employee housing units (EHUs) with offsite deed -restricted employee housing, • Reconfiguring the underutilized dorm -style employee housing units into 13 additional hotel accommodation units (AUs), and • Reclassifying seven existing accommodation units into four dwelling units. As all the conversions occur within the existing structure, with the exception of the existing EHU balconies that will be converted to AU square footage; there are no changes to development standards such as setbacks, building height, site coverage, and landscaping. Parking: The existing SDD (Ord. No. 21, Series of 2017) demonstrated a total parking capacity of 230 spaces serviced via a 24 hour valet service. The staff analysis of the approved, completed, and proposed work indicates that the net effect on parking is negligible with an overall effect of a reduction in the requirement of 1.4 spaces. Please see page 12 of the applicant's narrative. Commercial Linkage and Inclusionary Zoning: The amendments to the unit mix accomplished through the 2017 amendments resulted in an increase in the employee mitigation requirements which was addressed with a housing deed restriction for at least one two-bedroom dwelling unit of with a minimum of 788 square feet, located within the Town of Vail. Town of Vail Page 2 Staff analysis of the approved, completed, and proposed work, not including the repurposing of 16 dorm rooms (EHUs) to Accommodation Units, has a relatively negligible effect on the overall employee mitigation requirement for the Four Seasons Resort. As shown on pages 13 and 14 of the applicant's narrative, the net increase in employees is 1.6 with a mitigation requirement of 20% or .32 employees. With the inclusion of the repurposing of the existing EHUs, the total mitigation requirement for the proposed amendments to SDD No. 36 is 32.32 employees. Existing On -Site Employee Housing Program The existing dormitory style EHUs, comprised of 28 rooms for an occupancy of 56 employees, make up the bulk of the required mitigation measures. The Town has consistently received notarized annual verification forms from the Four Seasons indicating compliance with the deed restrictions. Town of Vail deed restrictions require that units are continuously occupied by qualified residents. Accompanying the signed verification has been lists of employees utilizing the on-site EHUs. Staff has learned from the applicant's team that the intention of providing the list of names was not only to demonstrate that the occupants were qualified residents, as required, but also to demonstrate that the units were not being occupied at 100% capacity. As this intention is contrary to the verification form (a copy of which has been included as Attachment C.), town staff has not been aware of the ongoing noncompliance with the requirements of the deed restriction. Staff is concerned that the remaining dormitory style rooms will continue to function with less than 100% occupancy, as required by the deed restriction. Proposed Mitigation The applicant is proposing to meet the mitigation requirement through the purchase of deed restrictions on existing homes in down -valley communities. Please see the applicant's narrative for details on this approach. The proposal will result in a net increase in restricted square footage in comparison to the existing dorm rooms but equates to the same number of employees mitigated per the code requirements outlined in Table 23-2 and shown below: TABLE 23-2 SIZE OF EMPLOYEE HOUSING UNITS Type Of Unit Minimum Size GRFA Number Of Employee s Housed Dormitory 250 1 Studio 438 1.25 1 bedroom 613 1.75 2 bedroom 788 2.25 Town of Vail Page 3 3 or more 2001 1,225 2005 2017 AUs 3.5 bedroom 122 130 DUs 15 18 16 The applicant's provided slide, Attachment B to the applicant's narrative, shows the potential estimated square footages achieved through this approach. The proposed receiving areas for the new deed restrictions includes the communities of Eagle Vail, Avon, and Edwards with the western terminus of the area being generally the Lake Creek Apartments area, as shown on the provided map included as Attachment B. Deed Restriction Exchange Program The applicant is intending to accomplish the off site deed restrictions through the Special Development District amendment process. Section 12-3-5 of the Vail Town Code provides a mechanism for the removal of a deed restriction on a property. (Please see Section IV, Applicable Planning Documents for this section of the Vail town Code.) As the applicant is proposing an Amendment to the SDD, this section shall only serve as a guide. Per this section, the relocation of a deed restriction is subject to a ratchet effect determined by the location of the existing restriction and the location of the proposed restriction. In this case, the Four Seasons is located within the Commercial Job Core, as defined, and the proposed down valley receiving areas are located outside of the Commercial Job Core. Per Section 12-13-5 D.3.b. of the Vail Town Code, the exchange rate would be three (3) times the GRFA requirement of the existing EHUs. It should be noted that at this time exchanging in town restrictions for out of town restrictions is not permissible under the exchange program. III. BACKGROUND The subject property was once occupied by a 120 room Holiday Inn hotel and a gas station. Ordinance No. 14, Series of 2001 established SDD No. 36, Four Seasons. SDD No. 36, Four Seasons, was subsequently amended to alter the unit mix in 2003 (Ord. No. 9, Series of 2003), 2005 (Ord. No. 20, Series of 2005) and 2017 Ord. No. 21, Series of 2017. The changes that occurred throughout this process are as follows: * The property was developed prior to the Town of Vail codifying EHU requirements. Though approved in 2001, construction did not begin until 2006 and the project did not open as the Four Seasons until 2010. While there have been changes to the internal programming of the building, no other significant changes have been made to the resort since its opening. Town of Vail Page 4 2001 2003 2005 2017 AUs 116 118 122 130 DUs 15 18 16 28 + 18 AA Us FFUs 40 22 19 6 EHUs* 4,971 SF 34 28 28 Total Units 171 + EHUs 192 185 210 * The property was developed prior to the Town of Vail codifying EHU requirements. Though approved in 2001, construction did not begin until 2006 and the project did not open as the Four Seasons until 2010. While there have been changes to the internal programming of the building, no other significant changes have been made to the resort since its opening. Town of Vail Page 4 IV. APPLICABLE PLANNING DOCUMENTS Staff finds that the following provisions of the Vail Town Code are relevant to the review of this proposal: Title 12, Zoning Regulations, Vail Town Code Chapter 9, Article A. Special Development (SDD) District (in part) 12 -9A -1-A: PURPOSE.- The URPOSE: The purpose of the special development district is to encourage flexibility and creativity in the development of land in order to promote its most appropriate use, to improve the design character and quality of the new development with the town; to facilitate the adequate and economical provision of streets and utilities, to preserve the natural and scenic features of open space areas, and to further the overall goals of the community as stated in the Vail comprehensive plan. An approved development plan for a special development district, in conjunction with the property's underlying zone district, shall establish the requirements for guiding development and uses of property included in the special development district. 12-9A-4: DEVELOPMENT REVIEW PROCEDURES.- A. ROCEDURES: A. Approval Of Plan Required: Prior to site preparation, building construction, or other improvements to land within a special development district, there shall be an approved development plan for said district. The approved development plan shall establish requirements regulating development, uses and activity within a special development district. B. Preapplication Conference: Prior to submittal of a formal application for a special development district, the applicant shall hold a preapplication conference with the department of community development. The purpose of this meeting shall be to discuss the goals of the proposed special development district, the relationship of the proposal to applicable elements of the town's comprehensive plan, and the review procedure that will be followed for the application. C. PEC Conducts Initial Review: The initial review of a proposed special development district shall be held by the planning and environmental commission at a regularly scheduled meeting. Prior to this meeting, and at the discretion of the administrator, a work session may be held with the applicant, staff and the planning and environmental commission to discuss special development district. A report of the department of community development staff's findings and recommendations shall be made at the initial formal hearing before the planning and environmental commission. Within twenty (20) days of the closing of a public hearing on a proposed amendment, Town of Vail Page 5 the planning and environmental commission shall act on the petition or proposal. The commission may recommend approval of the petition or proposal as initiated, may recommend approval with such modifications as it deems necessary to accomplish the purposes of this title, or may recommend denial of the petition or rejection of the proposal. The commission shall transmit its recommendation, together with a report on the public hearing and its deliberations and findings, to the town council. D. Town Council Review: A report of the planning and environmental commission stating its findings and recommendations, and the staff report shall then be transmitted to the town council. Upon receipt of the report and recommendation of the planning and environmental commission, the town council shall set a date for hearing within the following thirty (30) days. Within twenty (20) days of the closing of a public hearing on a proposed SDD, the town council shall act on the petition or proposal. The town council shall consider but shall not be bound by the recommendation of the planning and environmental commission. The town council may cause an ordinance to be introduced to create or amend a special development district, either in accordance with the recommendation of the planning and environmental commission or in modified form, or the council may deny the petition. If the council elects to proceed with an ordinance adopting an SDD, the ordinance shall be considered as prescribed by the Vail town charter. 12-9A-8: DESIGN CRITERIA AND NECESSARY FINDINGS.- A. INDINGS: A. Criteria: The following design criteria shall be used as the principal criteria in evaluating the merits of the proposed special development district. It shall be the burden of the applicant to demonstrate that submittal material and the proposed development plan comply with each of the following standards, or demonstrate that one or more of them is not applicable, or that a practical solution consistent with the public interest has been achieved.- 1. chieved: 1. Compatibility: Design compatibility and sensitivity to the immediate environment, neighborhood and adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, identity, character, visual integrity and orientation. 2. Relationship: Uses, activity and density which provide a compatible, efficient and workable relationship with surrounding uses and activity. 3. Parking And Loading: Compliance with parking and loading requirements as outlined in chapter 10 of this title. 4. Comprehensive Plan: Conformity with applicable elements of the Vail comprehensive plan, town policies and urban design plans. Town of Vail Page 6 5. Natural And/Or Geologic Hazard: Identification and mitigation of natural and/or geologic hazards that affect the property on which the special development district is proposed. 6. Design Features: Site plan, building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. 7. Traffic: A circulation system designed for both vehicles and pedestrians addressing on and off site traffic circulation. 8. Landscaping: Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and function. 9. Workable Plan: Phasing plan or subdivision plan that will maintain a workable, functional and efficient relationship throughout the development of the special development district. B. Necessary Findings: Before recommending and/or granting an approval of an application for a special development district, the planning and environmental commission and the town council shall make the following findings with respect to the proposed SDD.- 1. DD: 1. That the SDD complies with the standards listed in subsection A of this section, unless the applicant can demonstrate that one or more of the standards is not applicable, or that a practical solution consistent with the public interest has been achieved. 2. That the SDD is consistent with the adopted goals, objectives and policies outlined in the Vail comprehensive plan and compatible with the development objectives of the town, and 3. That the SDD is compatible with and suitable to adjacent uses and appropriate for the surrounding areas, and 4. That the SDD promotes the health, safety, morals, and general welfare of the town and promotes the coordinated and harmonious development of the town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality. 12-9A-9: DEVELOPMENT STANDARDS.- Town TANDARDS: Town of Vail Page 7 Development standards including lot area, site dimensions, setbacks, height, density control, site coverage, landscaping and parking shall be determined by the town council as part of the approved development plan with consideration of the recommendations of the planning and environmental commission. Before the town council approves development standards that deviate from the underlying zone district, it should be determined that such deviation provides benefits to the town that outweigh the adverse effects of such deviation. This determination is to be made based on evaluation of the proposed special development district's compliance with the design criteria outlined in section 12-9A-8 of this article. 12-9A-10: AMENDMENT PROCEDURES.- B. ROCEDURES: B. Major Amendments.- 1. mendments: 1. Requests for major amendments to an approved special development district shall be reviewed in accordance with the procedures described in section 12-9A-4 of this article. 2. Owners of all property requesting the amendment, or their agents or authorized representatives, shall sign the application. Notification of the proposed amendment shall be made to owners of all property adjacent to the property requesting the proposed amendment, owners of all property adjacent to the special development district, and owners of all property within the special development district that may be affected by the proposed amendment (as determined by the department of community development). Notification procedures shall be as outlined in subsection 12-3-6C of this title. 12-13-5 Employee Housing Unit Deed Restriction Exchange Program A. Purpose: The purpose of this section is to provide occupied livable, affordable employee housing units within the town of Vail through the establishment of an employee housing unit deed restriction exchange program. The exchange program allows the town council to release a deed restriction from an existing employee housing unit in exchange for the placement of an employee housing deed restriction on another dwelling unit and/or a fee in lieu payment made to the town of Vail. B. Applicability: The program established under this section applies to existing employee housing units. This shall not apply to any existing employee housing unit that is already price appreciation capped or any employee housing unit established to meet the on site employee mitigation requirements of chapter 23, "Commercial Linkage'; or chapter 24, "Inclusionary Zoning'; of this title or as part of an approved development plan. C. Definitions: For the purpose of this section: COMMERCIAL JOB CORE: Those areas located south of Interstate 70, east of the intersection of Forest Road and South Frontage Road, north of Vail Mountain, and west of the town of Vail soccer fields on Vail Valley Road, as further defined by exhibit A of this section. Town of Vail Page 8 Patala Patch S raddle Creek Llonshead Village 1-70 EAL t,17 G Vail Village dr Commercial Job Core Ford Park I rid W Vail Goff Course (Hobs 5 B S) EXCHANGE EHU: The existing nonprice appreciation capped employee housing unit or other unit with an employee housing deed restriction that is being proposed to have the deed restriction released as part of this program. PROPOSED EHU: The existing, non -deed restricted dwelling unit that is being proposed to receive an employee housing deed restriction as part of this program. D. General Requirements: The town council may approve the removal of an employee housing deed restriction from an existing employee housing unit in exchange for the placement of an employee housing deed restriction, and/or the payment of a fee in lieu, as described in subsection D5 of this section. 1. Exchange EHU Requirements: a. 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. b. 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 9 c. 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. 2. Proposed EHU Requirements: a. The proposed EHU(s) shall be located within the town of Vail. b. 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. c. The proposed EHU shall comply with the minimum size requirements shown in table 13-2 of this section. TABLE 13-2 MINIMUM SIZE OF PROPOSED EHUs Type Of Unit Minimum Size (GRFA) Studio 438 square feet I bedroom 613 square feet 2 bedroom 788 square feet 3+ bedrooms 1,225 square feet d. The proposed EHU shall contain a kitchen facility or kitchenette and a bathroom. e. The property on which the proposed EHU is located shall comply with chapter 10, "Off Street Parking And Loading", of this title. f. 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. 3. Exchange Rate For Proposed EHUs: a. If the exchange EHU(s) is within the commercial job core and the proposed EHU(s) is also within 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. b. If the exchange EHU is within 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 three (3) times the gross residential floor area (GRFA) of the exchange EHU. c. If the exchange EHU is outside of the commercial job core and the proposed EHU(s) is inside of the commercial job core, the gross residential floor area (GRFA) of the proposed Town of Vail Page 10 EHU(s) shall be a minimum of one and one-half (1.5) times the gross residential floor area (GRFA) of the exchange EHU. d. 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. 4. No Credit Given: If the gross residential floor area (GRFA) of the proposed EHU(s) is in excess of the minimum required gross residential floor area (GRFA) as set forth in subsection D3 of this section, the additional gross residential floor area (GRFA) shall not be eligible for use as any form of future credit or for the commercial linkage or inclusionary zoning employee housing mitigation banks established by sections 12-23-7 and 12-24-7 of this title. 5. Fee In Lieu: The applicant may provide a fee in lieu payment to the town of Vail for any fractional portion of the required square footage less than four hundred thirty eight (438) square feet not provided by a proposed EHU, if the proposed EHU does not fulfill the required amount of calculated square footage. a. The town council at its sole discretion may accept fee in lieu payment for the full required square footage only if the exchange EHU was approved prior to July 22, 1994, and has a deed restriction that includes the language stating, "if the unit is rented, it shall be rented only to tenants who are full time employees... ". b. The fee in lieu calculated amount shall be paid after approval of the application by the town council, but prior to recording of the deed restriction release. The fee shall be based upon the current fee structure in place at the time of approval. Early payment of the fee in lieu shall not be accepted prior to approval. The approval for deed restriction release shall sunset one year from the date of approval and any fees paid are nonrefundable. c. The town shall use monies collected from fees in lieu to provide incremental new employee housing units. Existing EHU square feet x inclusionary zoning fee = fee in lieu payment E. Fees: The town council shall set an application fee schedule sufficient to cover the cost of town staff time and other expenses incidental to the review of the application. The fee shall be paid at the time of the application and shall not be refundable. F. Review Process: 1. Submittal Requirements: The administrator shall establish the submittal requirements for an employee housing deed restriction exchange application. A complete list of the submittal requirements shall be maintained by the administrator and filed in the community development department. Certain submittal requirements may be waived and/or modified by the administrator and/or the reviewing body if it is demonstrated by the applicant that the information and materials required are not relevant to the proposed exchange. The administrator and/or the reviewing body may require the submission of additional materials if deemed necessary to properly evaluate the application. 2. Review Procedures: a. Administrator Review: The administrator shall review the application for completeness and compliance with this section, and shall make a determination of completeness and Town of Vail Page 11 compliance with this section within fourteen (14) days of application submittal. Should the administrator deem that the application is incomplete or not in compliance with this section, the administrator shall deny the application. Should the administrator deem the application is both complete and in compliance with this section, the administrator shall forward the application for review by the Vail local housing authority. b. Vail Local Housing Authority Review. The review of a proposed employee housing deed restriction exchange application shall be held by the Vail local housing authority at a regularly scheduled meeting. A report of the community development department staffs findings and recommendations shall be made at the formal hearing before the Vail local housing authority. Within twenty (20) days of the closing of a public hearing on a proposed amendment, the Vail local housing authority shall act on the application. The Vail local housing authority may recommend approval of the application as initiated, may recommend approval with such modifications as it deems necessary to accomplish the purposes of this title, or may recommend denial of the application. The Vail local housing authority shall transmit its recommendation, together with a report on the public hearing and its deliberations and findings, to the town council. c. Town Council Review. Upon receipt of the report and recommendation of the Vail local housing authority, the town council shall set a date for hearing within the following thirty (30) days. Within twenty (20) days of the closing of a public hearing on the application, the town council shall act on the application. The town council shall consider but shall not be bound by the recommendation of the Vail local housing authority. The town council may approve, either in accordance with the recommendation of the Vail local housing authority or in modified form, or the town council may deny the application. d. Appeal: Administrator and town council decisions may be appealed in accordance with the provisions in section '2-3-3, "Appeals", of this title. 3. Criteria And Findings: a. 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 proximity and accessibility of the proposed EHU(s) to the commercial job core and public transportation; and (2) The size of the proposed EHU(s) in relation to the minimum employee housing unit sizes established for commercial linkage mitigation in section 12-23-3 of this title; and (3) The effect of any homeowners' association dues or maintenance fees imposed upon the proposed EHU(s) on the affordability of the proposed unit for an employee; and (4) The correlation between any homeowners' association fees imposed upon the proposed EHU(s) and the services and amenities provided by the homeowners' association; and (5) The extent to which the exchange is consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail comprehensive plan and is compatible with the development objectives of the town; and (6) The extent to which the exchange presents a harmonious, convenient, workable relationship among land uses consistent with municipal development objectives; and Town of Vail Page 12 V (7) The extent to which the exchange provides for the growth of an orderly viable community and serves the best interests of the community as a whole. b. Necessary Findings: Before recommending and/or granting an approval of an employee housing deed restriction exchange application, the Vail local housing authority and the Vail town council shall make the following findings with respect to the application: (1) The application meets the general requirements of subsection D of this section; and (2) The application is consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail comprehensive plan and is compatible with the development objectives of the town; and (3) The application furthers the general and specific purposes of the zoning regulations, section 12-1-2 of this title, and the employee housing regulations, section 12-13-1 of this chapter; and (4) The application promotes the health, safety, morals, and general welfare of the town and promotes the coordinated and harmonious development of the town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality. ZONING AND SDD NO. 36, FOUR SEASONS RESORT & RESIDENCES ANALYSIS Address: Legal Description: Existing Zoning: Existing Land Use Designation Mapped Geological Hazards: View Corridor: 1 Vail Road Vail Village Filing 2, Lot A - C Public Accommodation (PA) Resort Accommodations and Services Steep Slope > 40% (Man -Made) None Development Allowed / Existing Proposed Change Standard Required Site Area 10,000 SF 2.32 acres 101,140 SF No Change As set forth in the Approved Development Plan referenced Setbacks in Section 4 of Ord. No. 20, Series of 2005, Four Seasons No Change SDD Building Height 89' N/A No Change AUs: 130 AUs: 123 AUs: +7 Density DUs: 28 (+15 AAUs) DUs: 32 (with 15 AAUs) DUs: +4 FFUs: 6 FFUs: 6 FFUs No Change EHUs: 28 EHUs: 12 EHUs: -16 GRFA 177,609 SF No Change Retail SF 2,386 SF No Change Restaurant SF 5,946 SF No Change Conference SF 11,139 SF No Change Health Club 18,577 SF No Change Site Coverage 85,091 SF (710%) (Below Grade) No Change 70,150 SF (59/0) (Above Grade) Landscaping 35,268 SF (30%) No Change Parking & Loading 230 Spaces 235 Spaces 235 Spaces No Change Town of Vail Page 13 VI SURROUNDING LAND USES AND ZONING Existing Land Use: North: Public / Semi -Public South: Medium Density Residential Transition Area East: Village Master Plan West: Resort Accomm. and Services Transition Area VII. SDD REVIEW CRITERIA Zoning District: General Use (GU) Two -Family Residential (R) High Density Multiple -Family (HDMF) General Use (GU) Public Accommodation (PA) Public Accommodation (PA) Commercial Service Center (CSC) High Density Multiple -Family (HDMF) Before acting on an SDD application, the PEC and Town Council shall consider the following factors with respect to the proposed SDD: 1. Compatibility: Design compatibility and sensitivity to the immediate environment, neighborhood and adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, identity, character, visual integrity and orientation. With the exception of the conversion of the existing EHU balconies, the proposed major amendment involves only the reconfiguration of existing interior space and will not impact the immediate environment or neighborhood or adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, identity, character, or visual integrity and orientation. Staff finds the proposal complies with this criterion. 2. Relationship: Uses, activity and density which provide a compatible, efficient and workable relationship with surrounding uses and activity. The proposed major amendment involves primarily the reallocation of existing front line worker housing down -valley. While fully cognizant of the challenges with the existing on site employee program, the proposed relocation of the units outside of the Commercial Job Core and outside of the municipal boundaries is inconsistent with the requirement (12-24-6) that a minimum of half of the employee housing required is accomplished with on site units. In addition, the proposed amendment is inconsistent with the guidance of the Town of Vail Deed Restriction Exchange Program. With no consideration of a multiplier or intown Town of Vail Page 14 units, the proposal is not fair nor equitable in relation to what is required of similar properties in similar situations, desiring to exchange deed restrictions. Staff finds the proposal, at this time, does not comply with this criterion. 3. Parking and Loading: Compliance with parking and loading requirements as outlined in Title 12, Chapter 10, Off Street Parking and Loading, Vail Town Code. The proposed major amendment does not result in a net increase in required parking. The parking improvements completed as part of the 2017 Major SDD Amendment are sufficient. Staff finds the proposal complies with this criterion. 4. Comprehensive Plan: Conformity with applicable elements of the Vail comprehensive plan, town policies and urban design plans. The proposed major amendment conforms to the following elements of the Vail comprehensive plan, town policies: Vail Land Use Plan Chapter 11 — Land Use Plan Goals / Policies (in part) 1.1 Vail should continue to grow in a controlled environment, maintaining a balance between residential, commercial and recreational uses to serve both the visitor and the permanent resident. 1.3 The quality of development should be maintained and upgraded whenever possible. 1.12 Vail should accommodate most of the additional growth in existing developed areas (infill areas). 3.1 The hotel bed base should be preserved and use more efficiently. 5.4 Residential growth should keep pace with the market place demands for a full range of housing types. At this time, the proposed major amendment is inconsistent with the following: Vail Land Use Plan Chapter 11 — Land Use Plan Goals / Policies (in part) Town of Vail Page 15 5.3. Affordable employee housing should be made available through private efforts, assisted by limited incentives, provided by the Town of Vail, with appropriate restrictions. 5.5. The existing employee housing base should be preserved and upgraded. Additional employee housing needs should be accommodated at varied sites throughout the community. Vail Housing 2027 - A Strategic Plan for Maintaining and Sustaining Community through to the Creation and Support of Resident Housinq in Vail Mission: "We create, provide, and retain high quality, affordable, and diverse housing opportunities for Vail residents to support a sustainable year round economy and build a vibrant, inclusive and resilient community. We do this through acquiring deed restrictions on homes so that our residents have a place to live in Vail." Policy Statement. Resident Housing as Infrastructure "We acknowledge that the acquisition of deed restrictions on homes for Vail residents is critical to maintaining community. Therefore, we ensure an adequate supply and availability of homes for residents and recognize housing as infrastructure in the Town of Vail; a community support system not unlike roads, bridges, water and sewer systems, fire, police, and other services of the municipal government." Economic Value and Communitv Benefits of Resident Housina Investment For each unit of resident housing, an estimated 400 hours of time and 950 gallons of gasoline are saved from shorter commutes every year—equating to greater business productivity and an opportunity for residents to give back to their community. It is generally assumed that in -commuters living in closer proximity to Vail will account for larger shares of new occupants of resident housing. As such, it was assumed that the average distance traveled by new occupants of resident housing would have traveled 30 miles. Over the course of a year, this reduction in commute time totals more than 2.2 million miles and represents more than 2 percent of all vehicle miles traveled by in -commuters. As a result, overall carbon emissions are reduced in the Vail Valley by 845 metric tons (2 percent of total estimated Vail in -commuter carbon emissions). It means that in -commuters save more than 95,000 gallons of gasoline per year. This annual savings means that enough energy is saved to charge more than 107 million iPhones and is equivalent to the air -scrubbing benefits of nearly 14,000 tree seedlings grown for more than 10 years. Expansion of the Economy due to Filled Positions The availability of additional homes for residents and the workforce translates to a greater jobs market and fewer unfilled positions. It is estimated that approximately 123 full- and part-time positions would be filled as a result of Vail's resident housing investment (100 units), thereby expanding Vail's economy by an estimated $18.1 million annually (1.2 percent increase). Town of Vail Page 16 Quality of Guest Experience There is direct linkage between the quality of the guest experience and the supply of local employees Staff finds the proposal, at this time, does not comply with this criterion. 5. Natural and/or Geologic Hazard: Identification and mitigation of natural and/or geologic hazards that affect the property on which the special development district is proposed. The subject property is not located within any natural or geologic hazard. Staff finds the proposal complies with this criterion. 6. Design Features: Site plan, building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. The proposal, with the exception of the conversion of the existing EHU balconies, does include any changes to the site plan, building design or location, or open space provisions. Staff finds the proposal complies with this criterion 7. Traffic: A circulation system designed for both vehicles and pedestrians addressing on and off site traffic circulation. The proposed major amendment results in the movement of housing mitigation for 32.32 employees from within the municipal boundaries to areas west of Dowd Junction. This relocation will result in possible increases to traffic in addition to exacerbating existing parking challenges. Staff finds the proposal may not comply with this criterion. 8. Landscaping: Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and function. The proposed major amendment does not include any changes to the landscaping or open space on the site. Staff finds the proposal complies with this criterion. 9. Workable Plan: Phasing plan or subdivision plan that will maintain a workable, functional and efficient relationship throughout the development of the special development district. Town of Vail Page 17 The proposed major amendment only pertains to interior changes to a limited number of the overall units located within the resort. No phasing or subdivision plan is necessary. Staff finds the proposal complies with this criterion. VIII. STAFF RECOMMENDATION At this time and due to inconsistencies between the proposal and adopted policies, staff recommends that the application be continued to allow additional work on a more comprehensive approach to the Four Season's housing mitigation requirements. Staff understands the applicant's position in regard to the undesirability of the existing units. As opposed to moving more than half of the existing obligation down -valley, staff would encourage a more holistic approach that would include improvements to the existing EHUs and meeting a portion of the obligation with off-site, within town limits. In order to maintain equity and fairness with the town's land use regulations, reference to the Deed Restriction Exchange Program is necessary. Should the PEC choose to forward a recommendation of approval, with conditions, for this request, the Community Development Department recommends the Commission pass the following motion: "The Planning and Environmental Commission forwards a recommendation of approval, with conditions, to the Town Council for a major amendment to Special Development District No. 36, Four Seasons, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for reconfiguration of existing accommodation units, fractional fee units and dwelling units, and to amend the Employee Housing Plan to locate a portion of the existing onsite employee housing offsite, located at 1 Vail Road/Lots A -C, Vail Village Filing 2, and setting forth details in regard thereto." Should the PEC choose to forward a recommendation of approval, with conditions, for this request, the Community Development Department recommends the following conditions: 1. The exterior building changes associated with this major amendment to SDD No. 36, Four Seasons, are contingent upon the applicant obtaining Town of Vail approval of an associated design review board application for all exterior changes to the property,- 2. roperty, 2. Prior to issuance of a certificate of occupancy for the conversion of any of the existing dorm rooms in the subject property, the applicant shall record with the Eagle County Clerk and Recorder a Town of Vail employee housing deed restriction corresponding to square footages per Table 23-2 for each employee. Town of Vail Page 18 Each dormitory room repurposed equated to two employees for the purposes of mitigation. Should the PEC choose to forward a recommendation of approval, with conditions, for this request, the Community Development Department recommends the PEC makes the following findings: 'Based upon the review of the criteria outlined in Section Vll of the Staff Memorandum to the Planning and Environmental Commission dated March 14, 2022, and the evidence and testimony presented, the Planning and Environmental Commission finds.- That inds: That the SDD complies with the standards listed in Section 12 -9A -8-A, Vail Town Code, or the applicant has demonstrated that one or more of the standards is not applicable, or that a practical solution consistent with the public interest has been achieved; 2. That the SDD is consistent with the adopted goals, objectives, and policies outlined in the Vail comprehensive plan and compatible with the development objectives of the town,- 3. own, 3. That the SDD is compatible with and suitable to adjacent uses and appropriate for the surrounding areas, and 4. That the SDD promotes the health, safety, morals, and general welfare of the town and promotes the coordinated and harmonious development of the town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality." IX. ATTACHMENTS A. Project Narrative, March 2022 B. Applicant's map of the westernmost terminus of receiving area C. Annual Verification for EHU Town of Vail Page 19 Proposed Amendments to SDD No. 36, Series 2005, as previously amended by Ordinance No. 20, Series 2005 & Ordinance No. 21, Series of 2017 Four Seasons Resort and Residences Vail March 2022 The purpose of this report is to provide a comprehensive description of amendments proposed to the FourSeasons Resort and Residences Vail (FourSeasons) Special Development District No. 36, as previously amended by Ordinance #20, Series 2005 and as further amended by Ordinance No. 21, Series of 2017. Information provided herein and under separate cover have been prepared in accordance with Section 12-9A-4: Development Review Procedures for Special Development Districts as outlined in the Town of Vail Zoning Regulations. Amendments to SDD #36 are intended to allow for the reconfiguration of the Four Seasons that will include, among other things, 1. replacing up to 16 underutilized onsite deed -restricted employee housing units (EHU's) with offsite deed -restricted employee housing, 2. reconfiguring the underutilized dorm -style employee housing units into up to 13 additional hotel accommodation units (AU's), and 3. reclassifying seven existing accommodation units into four dwelling units. Proposed amendments will not increase the overall footprint or existing floor plates (site coverage) of the building; existing covered balconies on the 4t" floor will be enclosed as part of the conversion to accommodation units. In addition, there will be architectural enhancements such as new windows and sidewall flues for new fireplaces (none of these improvements would require amendments to the existing SDD). This application is submitted on behalf of Ex Vail LLC (Ex Vail), an affiliate of Extell Development Company. Ex Vail acquired the property in November of 2016. Property acquired and still owned by Ex Vail includes the hotel and all resort amenity areas (spa, conference facilities, restaurant/lounge, etc.). Twenty-eight Dwelling Units (DU's) and six FFU's have previously been sold to other parties. These sold units are not a part of this SDD amendment. Ex Vail fully recognizes and embraces the housing mitigation requirement it inherited when it acquired the property. Our proposal in no way is seeking to diminish that requirement. In fact, our proposal is driven by a desire to find real solutions to correct existing flaws and to meet the demands of our valued year-round employees - in other words, Ex Vail needs to replace underutilized dorm -style units with fully -performing housing - and it meets the needs of the Town of Vail's housing goals and identified solutions. Knowing now what we know, Ex Vail Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page I 1 would not propose to develop what was approved in 2003; we are appreciative of the SDD amendment process allowing the ideas in our proposal to come forward to demonstrate, as required by the Vail Town Code, how we meet criteria and goals - again, in other words, we think what we are proposing today, knowing what we know now, would have been the preferred employee housing solution and approved in 2003 in lieu of the housing approach that was actually approved nearly 20 years ago. Information provided below includes: 1. Background on the Four Seasons Resort and Residences Vail 2. Vail's Changing Landscape 3. Ex Vail's Goals for Property 4. Proposed SDD amendments 5. SDD Review Criteria Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 2 Background on Four Seasons Resort and Residences Vail A Holiday Inn hotel and gas station existed on the subject site prior to the Town of Vail granting approvals for the redevelopment of the property. The Holiday Inn included 120 hotel rooms (Accommodation Units, or AU's), along with a restaurant, a small amount of meeting space and other accessory uses. The property was previously zoned Public Accommodation (PA) and with the SDD approval the underlying zoning of the property remains PA. Development approvals for the Four Seasons were originally established by Ordinance #14, Series 2001. Ordinance #14 established SDD No. 36 that allowed for the development of the following: • 116 AU's • 15 DU's • 40 FFU's • Retail, restaurant, conference and health club/spa space, and • 4,971sf of employee housing Ordinance #9, Series 2003 amended SDD No. 36 and allowed for the development of the following: • 118 AU's • 18 D U's • 22 FFU's • Retail, restaurant, conference and health club/spa space, and • 34 employee housing units Ordinance #20, Series 2005 amended SDD No. 36 and allowed for the development of the following: • 122 AU's • 16 D U's • 19 FFU's • Retail, restaurant, conference facilities and health club/spa space, and • 28 employee housing units The approved plans for the original owner/developer and the 28 employee housing units were configured and approved as double -occupancy, dorm room -style rooms that are approximately 182 usable square feet each (excluding hallway, closets, cabinets and bathrooms) and share a bathroom with the adjacent dorm room; these were placed on the western side of the building with only external access into each dorm room. They are recessed into the building with a —6 foot overhang from the above floor; accordingly, they receive little natural light, which is further restricted by the small 3 foot wide window and the solid steel entry door. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 3 Construction of the project began in 2006 and after resolution of many issues during the construction process the Four Seasons opened in December of 2010. Barclays Bank, lender on the project, assumed ownership of the property from the original developers in 2009. Ex Vail acquired the property in November of 2016. Four Seasons Hotels has an 80 -year agreement with Ex Vail to manage the hotel. At the time of Ex Vail's acquisition, the fractional ownership scheme was a failed endeavor in which nearly 70% of the FFU's remained unsold after six years of the resort being open. In addition, given the decade-long development/construction process that took place from the 2001 SDD approval to the resort opening in 2010, the luxury lodging industry changed significantly during that period, particularly consumer's preference for interior design and unit size. In many respects, the project's design and the mix of hotel and related residential uses were obsolete the day the hotel opened. Shortly after Ex Vail's acquisition, it began collaborative efforts with the Town of Vail to amend the SDD to, among other things, change the approved mix of AU's, DU's and FFU's that were permitted on the property. Ordinance #21, Series 2017 amended SDD No. 36 and allowed for a maximum density of: • 130 AU's • 28 DU's • 6 FFU's • 18 Attached AU's • Retail, restaurant, conference facilities and health club/spa space, and • 28 employee housing units In addition, the 2017 amendment resulted in Ex Vail (i) funding an offsite deed restriction on an 874 sf two-bedroom unit and (ii) purchasing and deed restricting a 1,221 sf three-bedroom unit. Converting the unsold FFU's to DU's was the necessary catalyst that intrigued residential purchasers; the 12 new DU's all sold to third party owners over the course of 2018 through 2021 and 11 of them joined a rental program that keeps the units available as hotel inventory through Four Seasons. In addition, those sales provided the "economic engine" necessary to implement a full renovation of the resort's common areas, amenities and hotel rooms. The comprehensive renovation was completed in two phases—phase I in 2019 and phase II in 2021. Vail's Changing Landscape Over the course of the 20 years between the initial SDD approval and now, Vail has transformed as a destination. Vail is no longer just a ski destination; in addition to very strong Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 14 summer tourism, Vail now receives significant shoulder season tourism as well. According to DestiMetrics, July occupancy grew from 54% in 2007 to up to 71% in 2017 (albeit, with additional hotel supply during that time, including the Four Seasons). May saw growth from 19% to 25% over that time, and September grew from 43% to 51%. Meanwhile, winter occupancy actually fell from 60% in 2006/2007 to 51% in 2017/2018. This change has also resulted in a significant increase in average nightly room rate; July rates grew 65% between 2008 and 2017. With this increase in rates (particularly for a hotel provider such as Four Seasons), the customer expectations for amenities offered, level of service and consistency of product increases significantly as well. As a result of this changing landscape, Vail has become a year-round destination and the services/product provided throughout the entirety of the year lend themselves to year-round employees, including those seeking to reside in Eagle County on a long-term basis. It is no longer feasible to staff and run a luxury hotel with predominantly seasonal visa workers. In 2018, we employed 3331 employees for some period of time; of that amount, 15% of the employees were visa employees. Of the visa employees, 25 of them worked at the property for less than 4 months before departing. Conversely, (i) we hired 112 new non -visa employees in 2018, which subsequently remained employed at the property for an average of 1.2 years, and (ii) we had 146 non -Visa employees that were hired at some point prior to 2018, worked at the resort during 2018 and ultimately had an average length of employment of 3.5 years. From 2017 through 2019, we typically had about 16 to 24 visa employees working onsite at the same time; over that time period, our labor needs were approximately 220 "full time equivalents," so the visa employees only satisfied about 8% of our workforce assuming they worked full time. The workforce at this point is very heavily skewed towards Eagle County residents that intend to work for a preeminent multinational employer like Four Seasons for several consecutive years. Ex Vail's Goals for the Property Prior to 2019 and throughout the global pandemic impacts of the past two years, Extell has been closely evaluating the Resort's onsite employee housing program. With our expectation for strong demand in the coming years, we need to maintain a consistent and well-trained work force. As widely known at this point, the pandemic severely constrained visa work programs and the labor market has seen substantial shortages in most U.S. markets. While employer-provided housing should be a tool to attract talent to a remote resort town like Vail, and as originally and creatively conceived in 2001 that fulfilling the employee housing requirement entirely onsite would be not only an employee draw but a public benefit as well, 1 This includes all employees that received a paycheck at some point during 2019; this includes employee turnover, as the business does not simultaneously employ that many people. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 5 we have found the occupancy of our onsite housing to be less than 45 percent most years since we acquired the Resort due to the changing trends described above. Accordingly, to better compete in the current labor market and to meet the Town of Vail's pre -pandemic employee housing goals, we need to prioritize a reimagined employee housing program for the Four Seasons Vail. Securing affordable and stable housing for our employees is the greatest challenge facing the Resort today. In other words, we want to secure off-site deed -restricted employee housing units that we know will be fully occupied. Extell and our redevelopment team have created a revised housing program that aligns with community housing goals and is in compliance with Vail policy. Moreover, this is a win for all three stakeholders— (i) the new program will increase employee housing utilization and further meet the Town's goals, (ii) employees will have a more desirable and stable housing product, and (iii) Four Seasons expects less employee turnover due to housing challenges and our business should have greater ability to attract new employees to the valley. While we could continue operating the hotel as we are today, we want to implement solutions so that not only are we meeting our 56 -bed SDD requirement, but we are actually housing employees and not leaving dozens of empty and underutilized employee beds. Peak occupancy in 2019 was 37 tenants; 2018 was 32; 2017 was 38; and 2016 was 30. See attached Exhibit A showing historical utilization. The onsite housing product is very heavily skewed towards temporary accommodations for temporary visa workers notwithstanding that they are only a very small portion of our workforce. The remainder of our 200+ employees have foregone the onsite dorm rooms and instead have elected to find their own offsite market rate housing; the feedback from these employees on our dorm rooms is: - A lack of kitchen facilities requires all meals to occur via our employee cafeteria. - There are no living rooms or adequate space for lounge furniture; a twin -size bed has to serve multiple purposes throughout the day. - Shared bathrooms and layouts lack reasonable privacy and are not conducive to couples or families. - Living where they work causes uneasiness about a lack of separation between work and personal lives. Thus, the units do not offer long-term housing to help retain talented employees, nor do they address housing needs of Colorado residents looking to work and raise a family in the Vail Valley. In addition, the units' location within the Resort and the lack of independent facilities does not allow for the flexibility to assist other employers by renting to non -Four Seasons employees. Meanwhile, we have heard from employees living in their own offsite housing that they have Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 6 tremendous uncertainty on future rent increases and that many landlords are only offering them leases on short- or month-to-month terms; upon a sale or a changing view of their landlord, they are forced to pack their belongings and move again. This ultimately creates friction that in many instances results in them terminating their employment and leaving the region. In the absence of fully performing employee housing units, Four Seasons employees are competing with other employees for an already low supply of rental opportunities in the region. Proposed SDD Amendments While we explored design ideas to renovate some of the onsite units to resolve the above- mentioned challenges, the existing site conditions (the dorm rooms are sandwiched between an HOA -owned hallway and a single exterior wall) prevented us from creating bedrooms and living rooms that would comply with building code regulations for light and air in occupied spaces. Accordingly, any attempt to create living rooms or larger bedrooms would result in a substantial reduction in the quantity of dorm/bedrooms; we did not feel it was in the spirit of the Town's housing goals nor to the benefit of anyone to propose an outright 50%+ reduction in the quantity of employee housing beds. Moreover, several of the challenges mentioned above would have remained. We are proposing to use Off -Site Mitigation to satisfy up to and including 32 of the 56 employees by: 1. Recording with the Eagle County Clerk and Recorder a Town of Vail employee housing deed restriction on dwelling unit(s) located within the Mitigation Region (including but not limited to Vail, Eagle -Vail, Avon and Edwards). Any such deed restriction(s) shall immediately and permanently reduce the on-site dormitory requirement based upon the occupancy (as set forth in Town of Vail code Table 23- 2) of the off-site deed restricted dwelling unit(s). For example, deed restricting an off-site two-bedroom dwelling (1.75 employees housed, per Table 23-2) and a three- bedroom dwelling (2.25 employees housed, per Table 23-2) would immediately reduce the onsite requirement by four employees (ie, reduce the on-site requirements by two double -occupancy dormitory rooms). We intend to initially approach employees that already own a home within the Mitigation Region; in exchange for a deed restriction payment, they would receive enhanced financial stability while ensuring the Town another desirable home reserved exclusively for employee use in perpetuity. In addition, we think that the deed restriction payment may help some employees migrate from renters to acquiring their own home. In addition to procuring deed restrictions from employees, we may need to procure some deed restrictions from third parties; during that process we expect that the property owner would offer us priority access to rent the deed restricted dwelling. We would in turn then sublet such dwelling(s) to employees; this would afford them (i) certainty with respect to the stability of their housing, (ii) significantly larger and more desirable housing, and (iii) flexibility for couples and families to have housing Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 7 that aligns with their needs. Ultimately, this mechanism will significantly upgrade the housing from small 2942 square foot deed restricted dorm rooms to deed restricted homes/condos/townhouses. The upgraded housing will have living rooms, kitchens and other aspects customary to homes, so the total deed restricted square footage per bedroom should increase from the 294 square feet we have today to —397 square feet assuming we are able to deed restrict a combination of —788 square foot two-bedroom dwellings and 1,200 square foot three-bedroom dwellings. See Exhibit B for a comparison of current EHU units/square footage and proposed. Similar to the 2017 amendment, the luxury hotel market and consumer demand has continued to migrate further towards hotel run rental programs and some of the remaining large hotel suites continue to be a drain on the overall performance of the property. In addition, much like the 2017 amendment created the economic engine to finance the cost of all the other changes, converting a few underperforming hotel rooms to four new condominium units would generate the proceeds to (i) acquire the offsite deed restrictions contemplated above and (ii) convert the vacant and underutilized dorm rooms into hotel rooms to be occupied year-round and generating additional hotel occupancy tax. See the included floor plans marked to show the specific locations and sizes of the converted hotel rooms. As we offset the onsite dorm rooms with the Off -Site Mitigation, we intend to renovate, reconfigure and repurpose the area into new hotel guestrooms. The fundamental objective of these amendments is to improve the employee housing situation for the benefit of the employees, the Town of Vail's overall housing objectives, the community at large and Four Seasons as employer. Between 2016 and 2018, on average housing for 30 people has sat vacant while our employees instead chose to pursue more desirable housing elsewhere in the Vail Valley; this in turn is putting further upward pressure on the overall rents within the region and Four Seasons' employees are taking housing away from the rest of the community. Ultimately, the employee housing product that was contemplated and approved 20 years ago has been deemed undesirable by most of our employees in recent years notwithstanding that their cost would be less than $600/month (including all utilities and meals) and that we have not increased the cost in over 5 years. Amendments proposed to SDD No. 36 will allow for Off -Site Mitigation, as detailed herein and as proposed on the redlined ordinance, as well as change the approved mix of AU's and DU's that are currently permitted on the property. These changes and zoning considerations are addressed below. As the enclosed balconies were part of the original construction, relevant zoning considerations are limited to parking and employee housing. z The total dorm room area is comprised of: (i) approximately 182 sf of bedroom/living area, (ii) 35 sf of hallway/circulation space, (iii) 20 sf of closets, (iv) 15 sf of cabinets, and (v) 50% of an 83 sf bathroom shared with the adjacent double occupancy dorm room. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 8 An overview of how these amendments will benefit not just Ex Vail, but also the broader community is provided below. APPROACH TO PROJECT The Four Seasons has been in operation for 11 years and has offered dorm rooms to employees during that time and were Ex Vail to make no changes to the property the hotel can continue to check the box on its SDD employee housing requirement and likely continue to operate for another eleven years and beyond with 50% or more of the employee beds remaining empty month in and month out. However, to make no changes would do nothing to improve the overall utilization of employee housing and would continue to put pressure on the region's rental market. This would continue to cause further issues for employees in the region and likely continue to cause employees and community residents to ultimately leave the region for other communities with more affordable housing. In essence, the changes below reflect what would be done differently (working within the physical limitations of the existing building) if the hotel were being built for today's market: Off-site deed restrictions Allowing the employee housing obligation for up to 32 of the 56 employees to be met with off- site deed restrictions will result in an improved deed restricted housing product compared to onsite undesirable dorm rooms. Two- and three-bedroom dwellings would allow for flexibility for families or roommates; the dwellings would also contain more than double the amount of livable space per employee compared to the current situation and would offer housing amenities that are expected by most contemporary employees—including living rooms and kitchens. These would ultimately result in approximately 27 new deed restricted bedrooms for the community in perpetuity. This housing would be desirable for the 92% of our employees that are not temporarily in Vail on a visa program. Reclassify seven hotel rooms to DU's Since our amendment in 2017, demand for residential for -sale product and hotel run rental programs for such units has continued to grow. For the 2019/2020 ski season, we found residential rental demand to be 39% greater than its demand for the 2017/2018 ski season, but typical hotel guestrooms were only 6% higher over that same period of time. Moreover, the pandemic has increased consumer focus on vacation product that offers an enhanced element of safety, which hotel run rental units offer. Based upon our prior sales, we expect near 100% participation in the rental program by the proposed four additional DU's. The reclassification to for sale condominiums can provide the economic engine to fund the deed restrictions and guestroom conversions. As several competing destinations have all recently announced major new developments from luxury operators (Montage Big Sky, Four Seasons Telluride and the Mayflower development in Deer Valley), the market continues to evolve, consumer tastes continue to gravitate to residential rental product and ultimately Vail needs to adapt to the ever-changing market to remain the premiere North America destination. Re -purpose unused dorm rooms Once replaced with off-site deed restricted housing, the underutilized dorm rooms shall be Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 9 converted to additional hotel guestrooms. As previously detailed in 2017, the hotel's standard, entry level (non -suites) rooms have historically been the best performing rooms and while there is some seasonal variation these rooms perform well throughout the year. Re -purposing the empty dorm rooms into hotel rooms will offset the larger inefficient hotel rooms that were now and previously reclassified as DU's; in addition, increasing the quantity of standard hotel rooms from the quantity that exists today (117) will generate additional business throughout the year, which will benefit the community as a whole with increased occupancy taxes and increased restaurant and retail business for other business owners in the community. In addition, these new rooms will be particularly appealing during the shoulder and summer seasons, which will continue to provide full time employment to employees instead of the highly seasonal and predominantly ski season focused experiences of Vail's past. PROJECT AND DESIGN PARAMETERS Given the objectives above, Ex Vail spent many months studying the existing facility to define a plan that would most efficiently and effectively implement these changes. Considerations, or parameters listed below influenced final renovation plans that are reflected by this SDD Amendment. These included: Carrying capacity of hotel amenities Maintaining the appropriate balance between the number of hotel guests and hotel amenities is critical, particularly at a high-end resort hotel. The Four Seasons common areas and amenities (lobby space, restaurants and bars, spa and health club, conference facilities, pool, etc.) all have a finite capacity. These amenities were originally sized for the current hotel and in most cases, it is not feasible to increase the size of these facilities. As such, existing common areas and amenities establish a limitation of sorts on the type and extent of changes to the overall unit mix. Layout of the existing building/code requirements As a renovation, the design of the existing building directly affects where changes can be made and the nature of changes that may be feasible. An example of this is the limitations created by existing hallways. In most cases hallways cannot be changed and they relate directly to each unit's building code egress requirements. In many cases options for unit conversions were directly impacted by such considerations. Unit locations and views History has shown the quality of views from hotel rooms does not directly impact guest revenue (while a mountain view room rents for more than a room with a highway view, a good mountain view room does not rent for more than a great mountain view room). The opposite is true of for -sale real estate. View considerations were a factor in determining the location of new for -sale units and new hotel rooms. Parking The existing parking structure cannot be expanded. As such, parking requirements are a significant consideration in the type of changes proposed to the properties overall unit mix. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 10 Four Seasons standards Four Seasons Hotels have explicit standards for the size, quality and features of their hotel rooms. These standards directly influenced decisions on where new or renovated hotel rooms could be created. Cost and efficiency The costs necessary to complete renovations along with projected returns were considered in making final decisions on future improvements. PROPOSED CHANGES TO UNIT MIX Ordinance #21, Series 2017 amended SDD No. 36 and allowed for the following maximum density: • 130 AU's • 28 DU's • 6 FFU's • 18 Attached AU's • Retail, restaurant, conference facilities and health club/spa space, and • 28 employee housing units Proposed amendments to SDD No. 36 would result in the following: • 123 AU's • 32 DU's • 6 FFU's • 18 Attached AU's • Retail, restaurant, conference facilities and health club/spa space, and • 28 employee housing units (but up to 16 of these can be satisfied with Off -Site Mitigation) A floor -by -floor comparison of existing units and proposed unit changes has been provided under separate cover. Below is a summary of how the proposed unit mix will be accomplished: Convert underutilized EHU's to AU's The 13 dorm rooms on the 4t" floor and the three dorm rooms on the 7t" floor will be demolished and rebuilt as 11 AU's; the off-site deed restrictions will be in place before a certificate of occupancy for the new AU's. Re-classification of two large suites to two DU's These hotel suites range in size from 1,700sf to 3,500sf. The suites do not perform well outside of peak ski season due to their size; demand for a 4 -bedroom hotel suite is limited to peak periods. These suites already have full kitchens, which is also atypical for hotel suites, so reclassifying them as DU's is a more suitable status. The sale of these units will provide some of the capital necessary to purchase off-site deed restrictions and create the new hotel rooms. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 11 Re-classification of four hotel rooms to two DU's These hotel rooms consist of (i) three suites range in size from 825sf to 1,100sf, and (ii) an adjacent connecting room. The suites are awkwardly shaped due to their location in the building; however, if they are merged together and reconfigured as two separate DUs, they can be more appropriately shaped by incorporating some of the hallway that is currently required by their classifications as four separate hotel rooms. The sale of these units would also provide some of the capital necessary to purchase off-site deed restrictions and create the new hotel rooms. Convert accounting office to AU's The accounting office can be consolidated with other departments/offices throughout the hotel, which will allow for the accounting office to be demolished and rebuilt as 2 AU's. This change does not require an SDD amendment; however, the construction work is intended to occur at the same time as the above changes. ZONING CONSIDERATIONS Proposed amendments will not materially increase the gross square footage of the building nor materially affect the exterior of the building. The overall footprint and existing floor plates/envelope of the building will remain as is; existing covered balconies on the 4th floor will be enclosed as part of the conversion to guestrooms. As such, the only relevant zoning considerations are parking and employee housing (commercial linkage requirements). Parking The 2017 amendment to SDD No. 36 establishes the parking requirement for the Four Seasons to be 230 spaces. The existing SDD also acknowledges that "235 spaces provided". All parking at the hotel is managed by 24/7 concierge services which includes valet spaces. Below is a summary of the new parking demand from the proposed amendments: Four Seasons SDD Amendment Parking Analysis 2/3/2022 Current Parking Req. Net Parking 2017 SDD 2017 Parking Current Condition Proposed For Proposed Compared to 2017 Land Use Amendment Req. Condition Parking Req. Condition Condition Amendment AUs 130 91.0 117 81.9 123 86.1 -4.9 DUs 28 39.2 28 39.2 32 44.8 5.6 FFUs 6 4.2 6 4.2 6 4.2 0 Lockoffs 18 12.6 15 10.5 15 10.5 -2.1 147.0 135.8 145.6 New Parking Req. -1.4 Based on the matrix above the proposed amendments will not increase the number of required Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 12 parking spaces. Employee Housing The Four Seasons was developed prior to the Town codifying employee housing requirements. Notwithstanding the fact that there was no formal employee housing requirement (commercial linkage/inclusionary zoning) at that time, in accordance with SDD No. 36 the project includes 28 on-site employee housing units. These units were approved as dormitory style and allowed to provide housing for two employees. The town's housing ordinances for Inclusionary Zoning and Commercial Linkage address re- developments as follows: Inclusionary Zoning Employee housing need only be provided for the increase in the GRFA of a redevelopment; provided however, that if any existing EHUs are to be removed, an equal amount of EHUs shall be replaced in addition to other requirements of this chapter. Commercial Linkage Employee housing impacts need only be mitigated for a redevelopment that results in a greater number of employees generated from an increase in net floor area, or an increase in the number of accommodation units or in net floor area, or an increase in the number of accommodation units or limited service lodge units in the redevelopment; provided however, that if any existing EHUs are to be removed, an equal amount of EHUs shall be replaced in addition to the other requirements of this chapter. Below are the three proposed changes and how they affect employee generation: Conversion of 2 hotel suites to 2 Condominiums — this change increases GRFA and it decreases the number of AU's; given the relatively larger size of the AU's in question, this conversion slightly increases the number of employees generated. Conversion of 5 hotel rooms to 2 Condominiums — this change increases GRFA and it decreases the number of AU's, given the relatively small size of the AU's in question, this conversion slightly decreases the number of employees generated. AU Changes – in the 2017 Amendment, Ex Vail was approved for a maximum density of 130 AU's and provided additional offsite deed restrictions at the time to offset the incremental employees associated with the increase from 122 AU's in the 2005 Amendment. Ex Vail is now proposing to reduce this permitted density to 1233 AU's 3 117 AU's currently, less the 7 AU's converting to the 4 new DU's, plus the 13 new AU's to be created from the underutilized dorm rooms and the accounting office. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 13 (which is inclusive of the AU's to be created from the underutilized dorm rooms), as such the changes reduces the number of employees generated. A summation of the changes is set forth below: Four Seasons SDD Amendment Employee Generation Analysis 2/3/2022 New Employee Generation 1.6 BENEFITS FROM PROPOSED AMENDMENTS Ex Vail's fundamental goal with this amendment is to correct and/or improve upon the assumptions from 20 years ago in which the idea of employees living onsite was ultimately much better received in theory than in practice. For 10+ years, the Resort has checked the box and "provided" the required employee housing; however, that housing was predominately empty due to most employees having no desire to live in onsite dorm rooms and Vail as a destination growing to a point that staffing largely with visa employees is not a viable business model. Much like Vail has evolved as a community since 2001, Ex Vail aims to reinvent the antiquated employee housing with the assistance and cooperation of PEC and Town Council. Once the employee housing is addressed, converting the dorm rooms to hotel rooms will improve the Resort's financial performance and in doing so create a viable resort property that is sustainable over the long-term. An underlying premise of this effort is that improvements which benefit Ex Vail and the Four Seasons will also benefit the Town of Vail through utilized employee housing units created by Ex Vail; increased occupancy at Four Seasons; increased sales tax revenue; and increased RETT revenues. STANDARDS FOR EVALUATION OF PROPOSED AMENDMENTS Nine criteria prescribed by the SDD section of the zoning code will be used to review these proposed amendments and criteria that we are showing we meet. These criteria are geared primarily towards the design of a project and they focus on topics such as compatibility with the neighborhood, building scale and massing, architecture, landscape design, density, etc. Proposed amendments are exclusive to changing the existing mix of units and increasing employee housing utilization and SDD criteria provide little guidance or direction with respect to how to determine the appropriate mix of units for a property such as this. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 14 Current Condition Proposed Condition Net Employee 2017 Soo 2017 Employee Current Employee Proposed Employee Generation Compared Land Use Amendment Generation Condition Generation Condition Generation to 2017 Amendment AUs 130 78.0 117 70.2 123 73.8 -4.2 DUs (sf) 86,377 34.6 89,174 35.7 99,779 39.9 5.4 FFUs(sf) 14,659 5.9 15,786 6.3 15,786 6.3 0.5 Lockoffs 18 0.0 15 0.0 15 0.0 0.0 118.4 112.2 120.0 New Employee Generation 1.6 BENEFITS FROM PROPOSED AMENDMENTS Ex Vail's fundamental goal with this amendment is to correct and/or improve upon the assumptions from 20 years ago in which the idea of employees living onsite was ultimately much better received in theory than in practice. For 10+ years, the Resort has checked the box and "provided" the required employee housing; however, that housing was predominately empty due to most employees having no desire to live in onsite dorm rooms and Vail as a destination growing to a point that staffing largely with visa employees is not a viable business model. Much like Vail has evolved as a community since 2001, Ex Vail aims to reinvent the antiquated employee housing with the assistance and cooperation of PEC and Town Council. Once the employee housing is addressed, converting the dorm rooms to hotel rooms will improve the Resort's financial performance and in doing so create a viable resort property that is sustainable over the long-term. An underlying premise of this effort is that improvements which benefit Ex Vail and the Four Seasons will also benefit the Town of Vail through utilized employee housing units created by Ex Vail; increased occupancy at Four Seasons; increased sales tax revenue; and increased RETT revenues. STANDARDS FOR EVALUATION OF PROPOSED AMENDMENTS Nine criteria prescribed by the SDD section of the zoning code will be used to review these proposed amendments and criteria that we are showing we meet. These criteria are geared primarily towards the design of a project and they focus on topics such as compatibility with the neighborhood, building scale and massing, architecture, landscape design, density, etc. Proposed amendments are exclusive to changing the existing mix of units and increasing employee housing utilization and SDD criteria provide little guidance or direction with respect to how to determine the appropriate mix of units for a property such as this. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 14 SDD Review Criteria The SDD chapter of the Town Zoning Code prescribed nine criteria to be used to evaluate the merits of a proposed Special Development District. The SDD sections states: The following design criteria shall be used as the principal criteria in evaluating the merits of the proposed special development district. It shall be the burden of the applicant to demonstrate that submittal material and the proposed development plan comply with each of the following standards, or demonstrate that one or more of them is not applicable, or that a practical solution consistent with the public interest has been achieved. These criteria and response to each are outlined below. 1. Compatibility: Design compatibility and sensitivity to the immediate environment, neighborhood and adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, identity, character, visual integrity and orientation. Response: There are no changes proposed to the property that would have any effect on the considerations outlined above. 2. Relationship: Uses, activity and density which provide a compatible, efficient and workable relationship with surrounding uses and activity. Response: There are no new uses proposed by these amendments. While changes are proposed to the mix of units, and since dwelling units may be rented on a nightly basis, there is not a significant change to density or the intensity of development on the site. Proposed amendments do not affect the compatible, workable relationship that has been established between the Four Seasons and surrounding uses and activities. 3. Parking and Loading: Compliance with parking and loading requirements as outlined in chapter 10 of this title. Response: Proposed amendments are in compliance with parking requirements. 4. Comprehensive Plan: Conformity with applicable elements of the Vail comprehensive plan, town policies and urban design plans. Response: Ex Vail's fundamental goal with this amendment is to correct the underutilized nature of its employee housing and to replace dorm rooms with off-site deed restricted dwellings; making this change will ensure that the deed restricted beds are actually occupied by Vail workforce instead of sitting empty year after year due to an ill-conceived type of housing product. These goals are consistent with many aspects of the Town's Comprehensive Plan and town policies and address head on one of the greatest challenges currently facing the Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 15 Town of Vail. 5. Natural and/or Geologic Hazard: Identification and mitigation of natural and/or geologic hazards that affect the property on which the special development district is proposed. Response: This criterion is not applicable to the proposed amendments. 6. Design Features: Site plan, building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. Response: This criterion is not applicable to the proposed amendments. 7. Traffic: A circulation system designed for both vehicles and pedestrians addressing on and off site traffic circulation. Response: The proposed amendments will have no appreciable effect on traffic considerations; given the low utilization and desirability of the onsite employee housing, the employees that were supposed to be housed onsite are already commuting to the resort from off- site housing and have been doing so for 10+ years. 8. Landscaping: Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and function. Response: This criterion is not applicable to the proposed amendments. 9. Workable Plan: Phasing plan or subdivision plan that will maintain a workable, functional and efficient relationship throughout the development of the special development district. Response: This criterion is not applicable to the proposed amendments. Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 16 EXHIBIT A Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 17 27, t X W 2 d O o 0 O N N ZLLJ N a N O 00 J 0 W } WZ K J 0 LuJ X Z w cc 0 0 J S n W z W Q cc S H O W EXHIBIT B Four Seasons Resort and Residences Vail Amendment to SDD No. 36 Page 1 18 N E 0 m V N Ln 3 Ol � E 0 M 0 L CL ci N N m m Ln 0 0 L 0 0 0 N m Ln o Ln cj N m D Ln Ln 0 U 0 C 0 iV1 O Cc Q C Q0 O1 cj I- N N 3 1 � E E l0 r -I D o E ° E N 2 Ln > GJ -0 E 7 � Ln > Ln o Q0 r", cj Q r -I N tLo GJ of6 o GJ U c 4 -JD 7 � c a O oC: •� =3 z U N M Ln N M Ln Q0 r -I N •X LJJ Lel C 1 COY Crwkk b •o� _ �n -.. r I �y-.�= . �i .. ��=a � _all �� i �'� 1. � .\io�•;� � jr ep ' .y � := tit - •. � ¢- r • 1 i _ u s: � F I �t �J�• � � iy/ Y � ' N a {� , � �j � • [tii '1� L9�� a' 'II .r - t: i ,.� ,.�d- �.,4�� r�°4—ter. •'I. - y r fie- - �y r f s • i i m s� 'V''.f. . �. r3" �� rr, - P '. � _.�„w. .•k, AL1 �' v Il - 1 o I,I I _U 7 fj Iv • �• 1'�i7: _ lNii►I0h 75 South Frontage Road West Community Development Department Vail, Colorado 81657 970.479.2138 vailgov.com 2016 Annual Verification for Employee Housing Unit (EHU) Upon being duly cautioned and sworn, owner(s) or manager(s) ("Owner") of�J► (ZD (street address), Vail, Colorado ("Property"), which contains an Employee Housing Unit ("EHU"), states as follows: (check applicable) Al. V that the EHU on the Property has been rented for months out of the last twelve for a monthly rental rate of $ ra,OTI,fr?� �p,V r� , OR, pp/�,�--��--(( pp.e�v Hui A2. that the Owner is the full-time o tFi�EHV'on'-he Property, AND, B.y that the EHU on the Property is occupied by a full-time employee of an Eagle County business. (Detailed employment information below) Tenant/Owner-Occupant's Name Mailing Addressl Vt) Phone Place(s) of Employment Tenant/Owner-Occupant's Name Mailing Address Phone Place(s) of Employment +jvLcAAeA) Hours per Week g0�fGcll7i/lt�� Hours per Week Hours per Week Hours per Week (Information on additional tenants/owners may be added to the back of this form. If you are an owner - occupant with renters, please include renter's information as well as your own on this form) Further, affiant sayeth naught. By. SSSS; C. &uCVX-"P and STATE OF CCIo1' C) ) ss. COUNTY OF c-3le ) [AA The foregoing instrument was acknowledged before me this � day of bt I' 20 1-7 by r and 014 Witness my hand and official seal. / My commission expires: "I 71ZOZs) Notary'Public PATRICK NOLL NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20124009801 W COMMISSION EXPIRES 0417.2020 EHU FSR Vail Employee 3301A Travis Bannon 33018 Sam Whittington 3302A John Martinez 3302B 3303A Ben Bleier 3303B Yan (Chido) Zhengxu 3304A 33048 Andrew Lunenburg 3305A Jason Waldman 3305B Scot Rowe 3305B Zeke Wapner 3306A Kris Kahn 3306B Harvie Gallentes 3307A LaurenzLiwanag 3307B Kim Del Rosario 3308A Jorge Urquico 3308B Jason Villarba 3309A Jonathan Campbell 3309B 3310A Ryo Akematsu 3310B Aaron Adan 3311A Daniel Canado 3311B Anjo Bernardo 3312A Jorge Correa 33128 Mikhael Navalta 4301 AlObaidi 4302A Yumi Derby 4302B 4303A Nagham Zaghmout 43036 4303B Michelle Dinglasan 4304A Mary Raymundo 4304B Michelle Dinglasan 4305A Celina Golloso 4305B Arian Belo 4306A Bianca Almanon 43066 Francesca Berenguer 4307A Early Empeno 4307B Karla Ramirez 4308A Kelly Bonifacio 43086 Isamar Sanchez 4308A 4308B Erin Kunes 4309A Kristine Aurellano 43096 Priscilla Cruz 4310A Ashley Austin 43108 4311A Morgan Coers 4311B 4312A Anne Locsin 4312B Mellieza Lomibao 4314A Vernie Velasco 4314B Nina Sevilla 7301 Aaron Ritrovato 7302 Fernando Barajas 7303 Patrick Erickson TOWN OF VAlL% V,"iILHOME PARTNERS ANNUAL COMPLIANCE SWORN STATEMENT FOR 2021 Basic Information Annually on or before February 1 Employee Housing Unit (EHU) owners are required to submit verification that the Employee Housing Unit is being utilized in a manner consistent with the terms of the applicable deed restriction and Employee Housing Guidelines. It is the Town's goal to make the annual compliance process as easy as possible in the most efficient manner. Please complete the following fields, upload relevant supporting documentation, sign and select SUBMIT. Thank you! Year: 2021 Date: 01/26/2022 Employee Housing Unit Address, including Unit #* 1 Vail Road Owner Name: EX Vail LLC Owner Phone: 970-477-8602 Owner Email Address: valerie.ozaki@fourseaosn.com Owner Mailing Care Of Owner Mailing Address: One Vail Rd. Owner Mailing City, State, Zip Vail, CO 81657 Is the Information above Correct? Yes No Occupant Information How was the home occupied in the previous year?* Owner Occupied Rented Vacant Tenant Information Tenant Name * Employees Tenant Phone* 9704708045 Tenant Email* valerie.ozaki@fourseasons.com Do not submit password protected documents. File Upload If you have multiple tenants UPLOAD a list including names, unit number, employer, work Location, # hours per week. If your file doesn't upload, it is not an acceptable file extension. (i.e .heic) Employment Information Owner/Tenant Employment Information Owner or Tenant* Owner Tenant Owner/Tenant Name* See attached Name of Employer* Four Seasons Resort Vail Calendar Year 2022 Location for work* 1 Vail Rd Type of Employment* Year Round Seasonal Retired How many hours on average do you or your tenant work per week annually?* 40 Do not submit password protected documents. If you have additional employment information upload information. TOV Deed Restriction Audit 2022.xlsx 12.64KB If your file doesn't upload, it is not an acceptable file extension. (i.e .heic) Certification Certification* By signing below, I declare under penalty of perjury the statements contained in this Compliance Statement are true and correct. 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(PEC21-0043) ATTACHM ENTS: File Name Staff Memorandum PEC20-0043 Mar 14 (final).pdf Attachment A. Narrative 3-14-22.pdf Stream Setback-0030822.pdf Attachment B. Comparison of Stream Setback Options 25 Map.pdf Attachment D. CombinedCommunityFeed back022422.pdf Pec results 092721.pdf Attachment G. pec results 102521.pdf Attachment H. PEC Meeting Minutes 1-24-22.pdf Attachment I. PEC Meeting Minutes 2-14-2022.pdf Pec results 022822.pdf Non -Conforming Structures Staff Memo to DRB 3-14-22(Final).pdf StreamCorridorPresentation PECMarch 142022. pdf Description Staff Memorandum PEC20-0043 Attachment A. Narrative 3-14-22 Attachment B. Draft Ordinance Attachment C. Comparison of Stream Setback Options 25' Map Attachment D. Community Feedback Attachment E. PEC Meeting Minutes 9-27-21 Attachment F. PEC Meeting Minutes 10-25-21 Attachment G. PEC Meeting Minutes 1-24-22 Attachment H. PEC Meeting Minutes 2-14-2022 Attachment I. PEC Meeting Minutes 2-28-22 Attachment J. Nonconformities Memo Presentation 0) rowN of vain Memorandum TO: Planning and Environmental Commission FROM: Community Development Department DATE: March 14, 2022 SUBJECT: A request for a recommendation to the Vail Town Council for a Prescribed Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Peter Wadden Planner: Greg Roy I. SUMMARY The applicant, Town of Vail, represented by Peter Wadden, is requesting a recommendation of approval to the Vail Town Council for a prescribed regulation amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, to change the waterbody setbacks. Based upon Staff's review of the criteria outlined in Section VII of this memorandum and the evidence and testimony presented, the Community Development Department recommends the Planning and Environmental Commission forward a recommendation of approval of this application subject to the findings noted in Section VIII of this memorandum. II. DESCRIPTION OF REQUEST The applicant requests a recommendation of approval to the Vail Town Council for a prescribed regulation amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12- 21-17 Gore Creek Setbacks, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Based on these recommendations from the Town's Comprehensive Plan and to protect crucial riparian habitat, the proposed changes would establish a "Two -Year Flood Line" (TYFL), where the setback would be measured from. The TYFL will be defined in the code as follows: "Two -Year Flood Line ("TYFL).- The average two-year flood line on Gore Creek and its named tributaries, as established by the data set adopted by the Town Council by resolution." The TYFL primarily runs along what would be commonly called the "bank" of the creek or watercourse. While the centerline of the creek may change on a daily or weekly basis, the TYFL varies on a longer timescale due to bank erosion and changes to the stream channel. It is a static baseline from which to measure the setback and has become the industry standard in the decades since Vail's original setback ordinance was adopted. A setback measurement based on TYFL is also more equitable among properties adjacent to reaches of stream of varying width. The effective setback from the watercourse based on the centerline is wholly dependent on how wide the watercourse is in that location. If the watercourse is one hundred feet (100') wide in one location the setback would permit building up to the bank of the watercourse. Comparatively, if the watercourse is fifty feet (50') wide, the effective setback from the bank would be twenty- five feet (25'). As the goal is to protect the watercourse, the best way to achieve that goal is to have a consistent setback from the bank of the watercourse, which can be distinguished by the average two-year flood line. The proposed language would not permit mowing, landscaping, grading or other disturbance within ten feet (10') of the TYFL, with exceptions. This ten -foot (10') wide portion of the setback would be a protected area to remain as native vegetation and natural materials. The Gore Creek Strategic Plan identifies "loss of riparian and streamside vegetation" as one of the three main causes of declining water quality in Gore Creek. The proposed riparian setback seeks to reverse this trend by establishing a contiguous corridor of healthy, native vegetation along Gore Creek and its tributaries. There would be allowances for access to the creek for each property. Each property would be able to maintain a path to the creek with certain limitations outlined in the proposed language. The proposed code change would remove the section on the setbacks from the watercourse from the Supplemental Regulations in Section 14 and the new language would be inserted in Section 21 on Hazards to be consistent with the location of the floodplain regulations. Since the previous meeting, the proposal has been amended to incorporate feedback from the Planning and Environmental Commission. The ordinance is attached that shows that the new regulations will not come into effect until January 1St of 2023. The corrections process has also been amended to allow for the OHWM to be shown on the site and setbacks will be taken from there. Town of Vail Page 2 BACKGROUND Ordinance No. 19, Series of 1976 created the streambank setback regulations in place today. They required a minimum setback of thirty feet (30') from the center of the established creek or stream channel and fifty feet (50') from the centerline of Gore Creek. The Gore Creek Strategic Plan, adopted by Vail Town Council in 2016, identifies the loss of riparian (streamside) vegetation as one of the three main causes of declining water quality in Gore Creek. The Plan recommends Town of Vail "update stream setback, riparian zone, vegetative buffer zone and other water quality objective definitions and maps (Title 12 Review and Amendments)." The PEC heard this application on September 27th and tabled the item to the October 25th meeting. This was done to allow for additional noticing beyond the noticing required to meet Town Code and to address some concerns the PEC had based on the discussion at that meeting. This item was heard on October 25th, January 24th, February 14th, and February 28th but was tabled for further refinement. IV. PROPOSED TEXT AMENDMENT LANGUAGE The applicant proposes the following language to be added to Title 12: The proposed amendments are as follows (text to be deleted is in +r;Lo+h,„. nh text that is to be added is bold and text that has been changed since the February 28th meeting is Sections of text that are not amended have been omitted.): Proposed new code language 12-21-17: GORE CREEK SETBACKS: A. Purpose: The purpose of this Section is to protect the public health, safety and welfare by ensuring the resiliency of Gore Creek and its named tributaries and by mitigating hazards associated with the deterioration of Gore Creek and its named tributaries. B. Applicability: This Section shall apply to all property located within twenty-five (25) feet of the TYFL, in whole or in part; provided that this Section shall not apply to any stream tract already protected Town of Vail Page 3 by Chapter 14 of Title 5 of this Code. C. Setbacks: 1. No mowing, landscaping, grading or other disturbance shall be permitted within ten (10) feet of the TYFL, other than: a. Removal of noxious weeds pursuant to Section 5-1-6 of this Code; b. With prior approval of the Vail Fire Department, removal of vegetation for purposes of fire mitigation; C. With approval of the Design Review Board, the installation and maintenance of one access path per lot or parcel, of up to four (4) feet in width, consisting of permeable materials including without limitation native soils, sand and gravel, or flagstone set in a permeable base; d. Public roadways, public bridges, public recreational paths and trails, and public parks and open spaces; e. Utility infrastructure within utility easements; f. With approval of the Design Review Board, erosion control measures, stream grade -control structures and riparian restoration activities that conform with bank stabilization best management practices; and g. Buildings, structures, fences, walls, patios, walkways, landscaping features, furniture wand similar improvements lawfully existing on the effective date of the ordinance codified in this Section, which improvements shall be subject to Chapter 18 of this Title. 2. No building or structure shall be located within twenty- five (25) feet of the TYFL, other than: a. With approval of the Design Review Board, those items listed in Section 14-10-4 of this Code; b. Buildings and structures lawfully existing on the effective date of the ordinance codified in this Section, which Town of Vail Page 4 improvements shall be subject to Chapter 18 of this Title. D. Corrections: 1. If a property owner wishes to correct the location of a designated7' T FL affeGti77'g .s setback on such property owner's property, the property owner shall submit suffi^ien+ the following to the Community Development Department to supper the nrOneFty GWnnr'c rerrert��r�n�+ie�trn TVCI The Submittal cr-cy--v�rrc�-�-arv�-rccr �-r a�T�a�rrrr shall neMnhi with all of the fellewinn standardg: a. A survey stamped by a licensed Colorado surveyor showing the location of the Ordinary High Water Mark (the "OHWM") on the property, in compliance with standards adopted by the United States Army Corps of Engineers; and b. Photographs showing the flags or other markers used to Town of Vail Page 5 r Ill !01M.- Will a. A survey stamped by a licensed Colorado surveyor showing the location of the Ordinary High Water Mark (the "OHWM") on the property, in compliance with standards adopted by the United States Army Corps of Engineers; and b. Photographs showing the flags or other markers used to Town of Vail Page 5 locate the OHWM on the property. 2. Within 30 days of receipt of a complete submittal, the Town shall correct the TY�nthe ^"emsindir-aat�ed- on submittal location of the setback on the property based on the OHWM, and from that point forward, all measurements required by this Section shall be taken from the OHWM instead of the TYFl_. E. Variances. The setbacks set forth in this Section are subject to the variance process set forth in Chapter 17 of this Title. F. Violation and Penalty: 1. It is unlawful for any person to violate any provision of this Section. 2. It is unlawful for any person to re -channel or modify Gore Creek or any of its named tributaries so as to avoid application of this Section. 3. Each separate act in violation of this Section and each and every day or portion thereof during which any separate act in violation of this Section is committed, continued or permitted shall be deemed a separate offense. 4. Violations of this Section shall be punishable as provided in Chapter 4 of Title 1 of this Code. To be included in 12-21-2: Definitions: TWO-YEAR FLOOD LINE ("TYFL"): The average two-year flood line on Gore Creek and its named tributaries, as established by the data set adopted by the Town Council by resolution. V. ROLES OF REVIEWING BODIES Order of Review: Generally, text amendment applications will be reviewed by the Planning and Environmental Commission and the Commission will forward a recommendation to the Town Council. The Town Council will then review the text amendment application and make the final decision. Planning and Environmental Commission: The Planning and Environmental Commission is responsible for the review of a text Town of Vail Page 6 amendment application, pursuant to Section 12-3-7, Amendment, Vail Town Code, and forwarding of a recommendation to the Town Council. Town Council: The Town Council is responsible for final approval, approval with modifications, or denial of a text amendment application, pursuant to Section 12-3-7, Amendment, Vail Town Code. Staff: The Town Staff facilitates the application review process. Staff reviews the submitted application materials for completeness and general compliance with the appropriate requirements of the Town Code. Staff also prov des the Planning and Environmental Commission a memorandum containing a description and background of the application; an evaluation of the application in regard to the criteria and findings outlined by the Town Code; and a recommendation of approval, approval with modifications, or denial. VI. APPLICABLE PLANNING DOCUMENTS Staff believes that the following provisions of the Vail Town Code and Vail Land Use Plan are relevant to the review of this proposal: Vail Comprehensive Plan Land Use and Development Goal #1 General Growth/Development • 1.2: The quality of the environment including air, water and other natural resources should be protected as the Town grows. Goal #5 Residential • 5.1: Additional residential growth should continue to occur primarily in existing, platted areas and as appropriate in new areas where high hazards do not exist. Vail 2020 Strategic Plan Land Use and Development • Goal #2: Land use and development decisions will address environmental sustainability as a priority of the community. Environmental Sustainability Town of Vail Page 7 Goal #5: Maintain Gore Creek watershed as a Gold Medal fishery, while working to maintain tributaries that meet and/or exceed aquatic life standards set by the state of Colorado. Gore Creek Strategic Plan Recommended Actions • 82. Updated Title 12 and Stream setback map with additional buffer boundaries, as proposed by this Plan, to achieve objectives of preserving vegetation. • 83. Update stream setback, riparian zone, vegetative buffer zone and other water quality objective definitions in Title 9, 12, 13, ad 14 of Town Code to improve consistency and better conform to GAP objectives and recommendations. Currently, the stream setback official map and definition do not articulate what practices are prohibited within the stream setback. CRITERIA FOR REVIEW 1. The extent to which the text amendment furthers the general and specific purposes of the zoning regulations; and The general purposes of the zoning regulations are for "promoting the health, safety, morals, and general welfare of the town, and to promote the coordinated and harmonious development of the town in a manner that will conserve and enhance its natural environment and its established character as a resort and residential community of high quality". This text amendment is intended to enhance the protection of Gore Creek as part of the town's natural environment. The current setbacks are measured from the centerline of the creek, but depending on the width of the creek the streambank may or may not be protected. As the preservation of the streambank and its native vegetation is one of the three main ways to improve the water quality, it is wholly important to make sure the regulations ensure that protection. Having the setback measured from the TYFL will ensure that the native vegetation along the river is being equally preserved. This application also furthers the specific purpose of the zoning regulations "To conserve and protect wildlife, streams, woods, hillsides, and other desirable natural features." Staff finds that the proposed text amendment conforms to this criterion. 2. The extent to which the text amendment would better implement and better achieve the applicable elements of the adopted goals, objectives, and policies outlined in the Vail comprehensive plan and is compatible with the development objectives of the town; and The proposed text amendment will further the Town's adopted goals in the comprehensive plan as noted in the section above. This amendment was specifically Town of Vail Page 8 recommended in the Gore Creek Strategic Plan as a way to further protect the creek. It also meets the goal of protecting the environment and water quality set forth in the Land Use Plan. The equal protection of the streambank is imperative to preserving and enhancing the water quality throughout the town. By changing the base of the setback measurement from the centerline to the TYFL, the sensitive area of Gore Creek and its tributaries will be consistently protected. Adding the limited disturbance to the first ten feet ensures that the sensitive area adjacent to the water is preserved to the greatest extent possible. This will allow for the natural filtration of water and other processes to take place before reaching the creek. Staff performed further analysis of the adopted goals, objectives, and policies outlined in the Vail comprehensive plan and found that the proposal was not contrary to anything adopted in the comprehensive plan. Staff finds that the proposed text amendment conforms to this criterion. 3. The text amendment demonstrates how conditions have substantially changed since the adoption of the subject regulation and how the existing regulation is no longer appropriate or is inapplicable; and The current regulations were set with the best information available in 1976, almost 50 years ago. Since then, new studies and best management practices have evolved and improved. The existing setbacks have no regulation on what can happen inside of the setback. It is now recognized that the area between the development and the creek is vitally important to the health and function of the creek. The proposed code change incorporates the best practices known today to establish an acceptable setback that protects Gore Creek and its water quality. The research that went into the Gore Creek Strategic plan looked at comparable studies and the suggested setbacks to maintain creek health. The findings suggested buffers of anywhere from 30 to 330 feet along the creek. This proposal is a modest setback that attempts to strike a balance between the character of Vail and the protection of its natural resources. Staff finds that the proposed text amendment conforms to this criterion. 4. The extent to which the text amendment provides a harmonious, convenient, workable relationship among land use regulations consistent with municipal development objectives; and One of the decision-making factors going into the proposed setback was the relation to the other setbacks throughout the town and crafting a proposal that would be harmonious with other sections of the Town Code. The proposed setback was one of several studied options that rose to the top as the most practical solution that would fit into existing regulations. In reference to Section 14 on design regulations and allowed encroachments Town of Vail Page 9 into setbacks, the 25 -foot setback provided for the encroachments from that section while allowing plenty of room to keep a protected area adjacent to the creeks. Staff further reviewed the development objectives of the Town to find how this proposal would or would not be furthering those objectives. Of the four Land Use and Development goals in the Strategic 2020 plan, one of the goals is "Land use and development decisions will address environmental sustainability as a priority of the community'. The other three goals mention consistency in the development review process, providing deed restricted housing, and updating land use documents. Goal #2 stated above seems to be the only relevant goal of to apply to the review of this application. The language suggests that environmental sustainability should be a priority for the community and thus would support an application that furthers that goal. This application furthers environmental sustainability by providing additional protections to Gore Creek in the form of a consistent setback. Staff finds that the proposed text amendment conforms to this criterion. 5. Such other factors and criteria the Planning and Environmental Commission and/or council deem applicable to the proposed text amendments Staff will provide additional information as needed should the PEC and/or council determine other factors or criteria applicable to the proposed text amendments. STAFF RECOMMENDATION The Community Development Department recommends that the Planning and Environmental Commission forward a recommendation of approval for the prescribed regulation amendment to the Vail Town Council. This recommendation is based upon the review of the criteria outlined in Section VII of this memorandum and the evidence and testimony presented. Should the Planning and Environmental Commission choose to forward a recommendation of approval to the Vail Town Council for the proposed prescribed regulation amendment, the Community Development Department recommends the Commission pass the following motion: "The Planning and Environmental Commission forwards a recommendation of approval to the Vail Town Council for a prescribed regulation amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043)" Town of Vail Page 10 Should the Planning and Environmental Commission choose to forward a recommendation of approval to the Vail Town Council for the proposed prescribed regulation amendment, the Community Development Department recommends the Commission makes the following findings: 'Based upon a review of Section Vll of the March 14, 2022 staff memorandum to the Planning and Environmental Commission, and the evidence and testimony presented, the Planning and Environmental Commission finds.- 1. inds: 1. That the amendment is consistent with the applicable elements of the adopted goals, objectives and policies outlined in the Vail Comprehensive Plan and is compatible with the development objectives of the Town, and 2. That the amendment furthers the general and specific purposes of the Zoning Regulations outlined in Section 12-1-2, Purpose, Vail Town Code, and 3. That the amendment promotes the health, safety, morals, and general welfare of the Town and promotes the coordinated and harmonious development of the Town in a manner that conserves and enhances its natural environment and its established character as a resort and residential community of the highest quality. " IX. ATTACHMENTS A. Applicant Narrative, 3-14-2022 B. Draft Ordinance C. Comparison of Stream Setback Options 25' Map D. Community Feedback E. PEC Meeting Minutes 9-27-2021 F. PEC Meeting Minutes 10-25-2021 G. PEC Meeting Minutes 1-2-2022 H. PEC Meeting Minutes 2-14-2022 I. PEC Meeting Minutes 2-28-2022 J. Nonconformities Memo Town of Vail Page 11 0) TOWN OF VAIL Memorandum To: Planning and Environmental Commission From: Department of Environmental Sustainability Date: March 14, 2022 Subject: Narrative- Stream Corridor Protection Ordinance The Gore Creek Strategic Plan (The Plan), adopted by the Vail Town Council in 2016, directs staff to "update stream setback, riparian zone, vegetative buffer zone and other water quality definitions and maps" in order to reverse "the loss of riparian and streamside vegetation, which reduces the natural ability of these areas to protect Gore Creek from the effects of land use activities and urban runoff." To that end, staff has undertaken a thorough review of the scientific literature concerning best practices in riparian buffers, regulations adopted by other communities around the state, and the situation on the ground in Vail to propose an ordinance designed to accomplish the objectives required by The Plan. Goals of proposed Code Changes The proposed Stream Corridor Protection Ordinance seeks to: • Create a clear, comprehensible, and enforceable set of guidelines for building and riparian setbacks on private property in Vail • Promote the establishment of a contiguous riparian buffer along Gore Creek and its tributaries • Limit turfgrass and hardscape and deter excessive chemical use within a delineated buffer zone To be successful, the ordinance must meet the following criteria: 1. Establish a net increase in the amount of riparian buffer o A robust riparian buffer throughout town is the strongest tool available to protect Gore Creek from pollutants such as landscaping chemicals and road runoff 2. Establish a net increase in the distance of buildings and structures from Gore Creek and its tributaries o As Vail developed over the past 60 years, structures were built very close to Gore Creek and its tributaries, leaving little space for riparian habitat. Establishing an adequate and equitable building setback will help resolve this problem over time 3. Have a clear, objective and measurable baseline in the field o The baseline for setbacks must not be subjective or open to interpretation. It needs to be clearly defined in order to be effective. 4. Be consistent, fair and equitable o A setback based on Two -Year Flood Line (TYFL) is more equitable because it does not varybased on the width of the creek. Based on those criteria, and through an extensive stakeholder process, staff have determined that a twenty-five foot (25') building setback and ten foot (10') riparian setback from an elevation -based Two -Year Flood Line (TYFL) are the most appropriate for Vail. Scientific and practical basis for a twenty -five-foot (251 setback from TYFL Town staff undertook extensive review of the likely effectiveness and impacts of setbacks of various widths and determined a twenty-five (25') foot building setback from TYFL is most appropriate for several reasons. 1. A contiguous buffer of diverse, native riparian vegetation along waterways in Vail is the single greatest tool available to restore Gore Creek. Riparian buffers filter runoff, reduce erosion and sedimentation, shade waterways, and provide crucial habitat for myriad species. While riparian areas make up less than 4% of the habitat area in Colorado, more than 80% of Colorado animal species depend on riparian habitat at some point in their lifecycles. Riparian buffers perform services that cannot be replicated through engineered or manufactured means. Protecting and restoring these buffer zones is the most cost-effective and efficient tool available to a community to protect its waterways. 2. Twenty-five feet (25') from TYFL is the smallest five-foot increment building setback that would not decrease the area along Vail's streams and waterways protected from development. A twenty -foot (20') setback from TYFL would be a step in the wrong direction when it comes to protection of aquatic resources. Figure 1. Number of non -conforming properties and acres protected from development under various setback scenarios. Importantly, twenty-five feet (25') best approximates existing, centerline -based setbacks without reducing them. Attached maps show that a twenty -five-foot (25') setback line from TYFL closely tracks the existing thirty-foot (30') (tributary) and fifty -foot (50') (Gore Creek) setbacks through most of town. Each setback scenario creates non -conforming properties in both single-family and multi -family structures. Under the existing setback scenario there are approximate 492 units in non -conforming buildings. Under the proposed 25 foot setback scenario there would be approximately 679 units in non -conforming buildings. 3. A smaller setback would create conflict with existing defensible space recommendations provided by Vail Fire Department. The Town's Fire Resistant Planting Guide recommends "no coniferous trees within fifteen feet (15') of the structure." A twenty -five-foot (25') setback from TYFL is the minimum building setback required in order to establish a ten -foot (10') no mow zone from TYFL and not Number of non- Number of acres Setback conforming protected from Scenario buildings development Existing 102 26.27 25 feet from TYFL 128 30.83 25 feet Gore Creek/ 20 feet tributaries 118 28.24 Figure 1. Number of non -conforming properties and acres protected from development under various setback scenarios. Importantly, twenty-five feet (25') best approximates existing, centerline -based setbacks without reducing them. Attached maps show that a twenty -five-foot (25') setback line from TYFL closely tracks the existing thirty-foot (30') (tributary) and fifty -foot (50') (Gore Creek) setbacks through most of town. Each setback scenario creates non -conforming properties in both single-family and multi -family structures. Under the existing setback scenario there are approximate 492 units in non -conforming buildings. Under the proposed 25 foot setback scenario there would be approximately 679 units in non -conforming buildings. 3. A smaller setback would create conflict with existing defensible space recommendations provided by Vail Fire Department. The Town's Fire Resistant Planting Guide recommends "no coniferous trees within fifteen feet (15') of the structure." A twenty -five-foot (25') setback from TYFL is the minimum building setback required in order to establish a ten -foot (10') no mow zone from TYFL and not conflict with existing fire wise guidelines. Evergreen trees are an important part of a healthy riparian habitat. They are also a major concern when establishing defensible space around a structure. A twenty -five-foot (25') building setback is the smallest available that avoids that conflict. 4. Twenty -five -feet (25') from TYFL is the smallest setback adopted by any other community in Colorado. As the Premier Mountain Resort Community in Colorado and a leader in environmental sustainability, this is the absolute least that can be done to protect Gore Creek and its tributaries. The proposed text changes in the attached memorandum have been thoroughly vetted and discussed. As such they allow for some exceptions that other Colorado communities do not accommodate in their riparian and wetland setbacks, including a "creek access path." Jurisdiction Stream/Wetland Setback Glenwood Springs 35 feet from bank Eagle County 75 feet from bank Pitkin County 100 feet from bank Aspen Additional review within 100 feet of bank Fort Collins Minimum 50 feet from bank Steamboat Springs 100 feet from bank Estes Park Minimum 50 feet from bank Colbran 100 feet from bank Summit County 25 feet from bank Figure 2. Selected setbacks codified by other Colorado municipalities 5. Twenty-five feet (25') is the minimum recommended buffer zone identified in the Gore Creek Strategic Plan. Scientific literature cited in the Plan recommends that native vegetation within twenty- five feet (25') of the streambank be "left undisturbed." Changes in Response to Commissioner and Public Feedback on February 28, 2022 In response to feedback from Commissioners and public input received at the Planning and Environmental Commission meeting on February 28, 2022 staff have worked with the town attorney to make several changes to the proposed ordinance language. Those changes are summarized here: • Clear criteria for the "corrections process" based on the Army Corps of Engineers Ordinary High Water Mark (OHWM) delineation have been articulated in the proposed code language. • Effective date of January 1, 2023 included in code language. • Allowable encroachments into the stream setback are delineated in 14-10-4. Establishment of Two -Year Flood Line (TYFL) in Vail The Two -Year Flood Line proposed in this ordinance is based on specific elevations above sea level. While alternative methods to determine TYFL exist, methods based on bank scouring, vegetation, and erosion are more time-consuming and expensive to define. They can also be subjective; two surveyors or wetland scientists working in earnest could establish different TYFL delineations along the same reach of stream. An elevation -based TYFL is the better approach if Vail wishes to avoid conflicting delineations and establish a regulation which can be applied fairly, consistently and equitably. Based on the above recommendations from the Town's Comprehensive Plan and with the intention of protecting crucial riparian habitat the proposed changes would establish a new stream setback and change where the setback is measured from. The new setback would be measured from the "Two -Year Flood Line" (TYFL), which would be defined in the code as follows. "The Two -Year Flood Line (TYFL) is the average 2 year flood line on Gore Creek and its named tributaries, as established by the dataset adopted by Town Council by resolution." The TYFL is primarily along what would be commonly called the "bank" of the creek or watercourse. While the centerline of the creek may change on a daily or weekly basis, the TYFL varies on a longer timescale due to bank erosion and changes to the stream channel. It is a more static baseline from which to measure the setback and has become the industry standard in the decades since Vail's setback ordinance was adopted. The TYFL in Vail will be determined on the ground by Professional Land Survey. The procedures for surveying the TYFL are similar to the procedures for surveying the 100 -year floodplain line. The Town of Vail will publish elevations for the TYFL that are determined through Professional Engineering and hydraulic modeling procedures. These engineering procedures are similar to those used to develop the Base Flood Elevations (BFE) published by FEMA. Most properties that will requiresurvey of the TYFL also require survey of the 100 -yr floodplain line defined by Vail Town Code. A setback measurement based on TYFL is also more equitable among properties adjacent to reaches of stream of varying width. The effective setback from the watercourse based on the centerlineis wholly dependent on how wide the watercourse is in that location. If the watercourse is one hundred feet (100') wide in one location the setback would permit building up to the bank of the watercourse. Comparatively if the watercourse is fifty feet (50') wide, the effective setback from the bank would be twenty-five feet (25'). As the goal is protect the watercourse, the best way to achieve that goal is to have a consistent setback from the bank of the watercourse, which can be distinguished by the average two-year flood line. The proposed language also includes the addition of a "Riparian Zone". This ten -foot (10') wide portion of the setback would be a protected area to remain as native vegetation and natural materials. The Gore Creek Strategic Plan identifies "loss of riparian and streamside vegetation" as one of the three main causes of declining water quality in Gore Creek. The proposed riparian setback seeks to reverse this trend by establishing a contiguous corridor of healthy, native vegetation along Gore Creek and its tributaries. The proposed code change would remove the section on the setbacks from the watercourse from the Supplemental Regulations in Section 14 and the new setback language would be inserted in Section 21 on Hazards to be consistent with the location of the floodplain regulations. Non -conformity to foster change over time Nonconforming status is used to create change over time. It is a natural progression that occurs as a community's regulations evolve. Non -conformity fosters change without triggering the need for property owners to make an immediate change or upgrade to the property. It has been used with great success in Vail in the past to implement long-term changes for the betterment of the community. One example of an appropriately used nonconforming process is the code language governing wood shake roof shingles. Much of Vail was developed prior to the awareness of the value of protecting streams and water bodies with adequate buffers. In recent years the Vail community has come to recognize the importance of riparian buffers in protecting our waterways from pollution, providing shade and habitat. Adoption of a new building setback which adheres to modern best practices in waterbody protection and is implemented over time through the town's regulations on non -conforming properties is an equitable way to act on those changing values. In addition to protecting waterways from pollution and erosion, healthy riparian buffers will enhance the resiliency of these ecosystems in the face of a changing climate. Insurance Implications Staff could find no evidence that non -conforming status of a property would have an impact on a homeowner's insurance rates. Research revealed no evidence of increases based on non -conforming status under municipal code. Furthermore, multiple conversations with Will Comerford of State Farm Insurance and Patty Hood of Hood Insurance indicated that neither had encountered an instance in their careers where insurance rates were adjusted because of non -conforming status. Mr. Comerford pointed out that non -conforming status under municipal code is not something an applicant discloses to an insurer when opening a new insurance policy. Insurers do not know or consider whether a property is legally non -conforming under municipal code when setting insurance rates. Neither Mr. Comerford nor Ms. Hood believed that an owner's independent decision to tear down and rebuild a home or commercial property would result in a "claim the allows for a covered loss." Rather, Mr. Comerford commented that fire risk and flood risk do have an impact on insurance rates and it was his opinion that greater distance from waterways and fuels might benefit insurance rates of homeowners. Furthermore, Vail's Town Code provides homeowners whose property suffers damage from an act of nature (such as flood or fire) the opportunity to rebuild a structure as it was, even if it was non- conforming, providing an application for construction is received within 1 year. Water quality improvement and bank stabilization Addition of vegetation and grading which conform with best management practices would be permitted under the proposed ten foot (10') vegetative setback. Vail Town Code allows a property owner to add new plants to their landscaping without a permit. Exceptions within the proposed code language below allow the Design Review Board to permit construction of "erosion control measures and stream grade control structures" providing they follow industry best practices. Rain gardens, bioswales and constructed wetlands are typically considered "best management practices" (BMPs) in watershed management, erosion control and stormwater treatment. ORDINANCE NO. SERIES 2022 AN ORDINANCE AMENDING SECTIONS 12-14-17 AND 12-21-17 OF THE VAIL TOWN CODE TO ESTABLISH SETBACKS FROM GORE CREEK AND ITS TRIBUTARIES WHEREAS, the Town's current stream setback, as established by Ordinance No. 19, Series of 1976, requires a minimum setback of 30 feet from the center of an established creek or stream channel and 50 feet from the centerline of Gore Creek; WHEREAS, the Gore Creek Strategic Plan adopted by the Town Council in 2016 identifies loss of riparian vegetation as one of the main causes of declining water quality in Gore Creek; and WHEREAS, the Town Council wishes to prevent further deterioration of Gore Creek and its named tributaries by enacting a clear, comprehensible, and enforceable set of guidelines for setbacks from Gore Creek and its tributaries. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Section 12-14-17 of the Vail Town Code is hereby repealed in its entirety. Section 2. Section 12-21-2 of the Vail Town Code is hereby amended by the addition of the following new definitions, to appear in alphabetical order: TWO-YEAR FLOOD LINE ("TYFL"): The average two-year flood line on Gore Creek and its named tributaries, as established by the data set adopted by the Town Council by resolution. Section 3. Chapter 21 of Title 12 of the Vail Town Code is hereby amended by the addition of a new Section 12-21-17, to read as follows: 12-21-17: GORE CREEK SETBACKS: A. Purpose: The purpose of this Section is to protect the public health, safety and welfare by ensuring the resiliency of Gore Creek and its named tributaries and by mitigating hazards associated with the deterioration of Gore Creek and its named tributaries. B. Applicability: This Section shall apply to all property located within twenty-five (25) feet of the TYFL, in whole or in part; provided that this Section shall not apply to any stream tract already protected by Chapter 14 of Title 5 of this Code. 1 3/10/2022 S:ICOMMUNITYDEVELOPMENTIPLANNINGIGREGIPEC CASESIPEC21-00431ORDINANCEISTREAM SETBACK - 0030822. DOCX C. Setbacks: 1. No mowing, landscaping, grading or other disturbance shall be permitted within ten (10) feet of the TYFL, other than: a. Removal of noxious weeds pursuant to Section 5-1-6 of this Code; b. With prior approval of the Vail Fire Department, removal of vegetation for purposes of fire mitigation; C. With approval of the Design Review Board, the installation and maintenance of one access path per lot or parcel, of up to four (4) feet in width, consisting of permeable materials including without limitation native soils, sand and gravel, or flagstone set in a permeable base; d. Public roadways, public bridges, public recreational paths and trails, and public parks and open spaces; e. Utility infrastructure within utility easements; f. With approval of the Design Review Board, erosion control measures, stream grade -control structures and riparian restoration activities that conform with bank stabilization best management practices; and g. Buildings, structures, fences, walls, patios, walkways, landscaping features, furniture and similar improvements lawfully existing on the effective date of the ordinance codified in this Section, which improvements shall be subject to Chapter 18 of this Title. 2. No building or structure shall be located within twenty-five (25) feet of the TYFL, other than: a. With approval of the Design Review Board, those items listed in Section 14-10-4 of this Code; and b. Buildings and structures lawfully existing on the effective date of the ordinance codified in this Section, which improvements shall be subject to Chapter 18 of this Title. D. Corrections: 1. If a property owner wishes to correct the location of a setback on such property owner's property, the property owner shall submit the following to the Community Development Department: 2 3/10/2022 S:ICOMMUNITYDEVELOPMENTIPLANNINGIGREGIPEC CASESIPEC21-00431ORDINANCEISTREAM SETBACK - 0030822. DOCX a. A survey stamped by a licensed Colorado surveyor showing the location of the Ordinary High Water Mark (the "OHWM") on the property, in compliance with standards adopted by the United States Army Corps of Engineers; and b. Photographs showing the flags or other markers used to locate the OHWM on the property. 2. Within 30 days of receipt of a complete submittal, the Town shall correct the location of the setback on the property based on the OHWM, and from that point forward, all measurements required by this Section shall be taken from the OHWM instead of the TYFL. E. Variances. The setbacks set forth in this Section are subject to the variance process set forth in Chapter 17 of this Title. F. Violation and Penalty: 1. It is unlawful for any person to violate any provision of this Section. 2. It is unlawful for any person to re -channel or modify Gore Creek or any of its named tributaries so as to avoid application of this Section. 3. Each separate act in violation of this Section and each and every day or portion thereof during which any separate act in violation of this Section is committed, continued or permitted shall be deemed a separate offense. 4. Violations of this Section shall be punishable as provided in Chapter 4 of Title 1 of this Code. Section 4. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 5. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 6. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision 3 3/10/2022 S:ICOMMUNITYDEVELOPMENTIPLANNINGIGREGIPEC CASESIPEC21-00431ORDINANCEISTREAM SETBACK - 0030822. DOCX amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 7. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. Section 8. This ordinance shall take effect on January 1, 2023. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this day of , 2022 and a public hearing for second reading of this Ordinance set for the day of , 2022, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. Kim Langmaid, Mayor ATTEST: Tammy Nagel, Town Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this day of , 2022. Kim Langmaid, Mayor ATTEST: Tammy Nagel, Town Clerk 4 3/10/2022 S:ICOMMUNITYDEVELOPMENTIPLANNINGIGREGIPEC CASESIPEC21-00431ORDINANCEISTREAM SETBACK - 0030822. 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Q i•_3fi: �.. .. .. - .-'wire _�•�h fi'�i� �F• .. m ' -'r • err• � �. r ��' A s� � ,'�'?OM1 W � � � • S � � �►.,� :,.;ice =" ,_:' ,+�v._ • . �:`"•- L _�. ��;...i :'yam It Y co L Y Y U (o Co U) = O Co o 4 Lo W 0 N •'Oki .4 Tp ., ..� .. r •� � 41 sem, x. - "�' '� � � � `' �' • � ��-fir ' e i r. rr LL ;��• rsli .C: �'f' ti '� .+_, V f- 111 'Pet op 41 CL PIP If oi LL � '� _ ''`.. r '' f r wL �' �' �• IF' .. IIF > r / Ar ON s , CL S�■ � a t.. W, x Y co N Y ai U (o Co C U) O O U 4 LEO W O N z 0 CL Y L co N Y L a� Y U (o Co C U) = O o a LO W O N 00M 0� EAGLE RIVER WATER & SANITATION DISTRICT April 5, 2021 Honorable Dave Chapin Vail Town Council pwadden@vailgov.com Town of Vail transmitted via email 75 S. Frontage Road Vail, CO 81657 Re: Gore Creek Stream Corridor Protection Ordinance Dear Mayor Chapin and Vail Town Council members: The Eagle River Water & Sanitation District applauds the Vail Town Council for supporting staff in moving forward with drafting a stream corridor protection ordinance. The Town of Vail and Eagle River Water & Sanitation District have worked collaboratively on improving Gore Creek water quality since Gore Creek was listed on Colorado's 303(d) List of impaired water bodies in 2012. Since the listing, our collective staffs have completed the 2012 Gore Creek Water Quality Improvement Plan, the 2016 Gore Creek Strategic Action Plan, and are in the midst of completing the Gore Creek Watershed Source Water Protection Plan. While each plan has built on the previous plan and targeted specific outcomes, they all point to the need for a stream corridor protection ordinance. Increasing the riparian buffer adjacent to Gore Creek and its tributaries, limiting turfgrass and hardscape within the buffer zone, reiterating statewide pesticide regulations in the TOV municipal code, and enforcing the code will greatly enhance what has become the Restore the Gore movement. The long term benefits of the proposed ordinance will be far reaching. Improvement to overall aquatic ecosystem health and habitat are expected to build on, and multiply, the recent successes of the programs noted above. Improved shading will reduce stream temperatures during the critical brown trout spawning season and will promote stream health by maintaining low daytime temperatures. Reduced hardscapes and turfgrass will improve the ability of the floodplain area to store and infiltrate runoff and will benefit both flood volumes and water quality. All forms of recreation experiences will improve; the more natural riparian corridor will be noticed by all who recreate on Gore Creek and its tributaries. As the water and wastewater service provider for the Town of Vail and communities downstream on the Eagle River, we are committed to a sustainable and healthy river system. The District is committed to supporting the Town's efforts in drafting and implementing the stream corridor ordinance through continued collaboration, education and outreach, and ongoing water quality and macroinvertebrate sampling and monitoring. We are fortunate to live in Colorado's headwaters and be the first users of the water; preserving the water quality for downstream users as well as future generations directly ties to our organization's shared value of environmental stewardship. We are excited with the current momentum behind the Restore the Gore movement and look forward to our continued collaboration and partnership. Sincerely, �29d/P.� inn Brooks General Manager Clean Water. Quality Life.'" 846 Forest Road Vail, Colorado 81657 Tel (970) 476-7480 Fax (970) 476-4089 erwsd.org Eagle River t__0_ Watershed Council MONO X81$ Honorable Dave Chapin Vail Town Council Town of Vail 75 S. Frontage Road Vail, CO 81657 commdev@vailgov.com 461 Railroad Ave, Unit C PO Box 1477 Gypsum, Colorado 81637 Protecting our rivers since 2004 RE: Stream Corridor Protection Ordinance Dear Mayor Chapin and Vail Town Council members: 970-827-5406 info@erwc.org www.erwc.org Tax ID#: 20-4448864 November 9, 2021 Thank you for the opportunity to provide comments regarding the proposed amendments to Town of Vail's (TOV) municipal code for watercourse setbacks and riparian protection. This action has features and merits that touch on many community -wide issues including our values surrounding streams and the environment, private and public land uses of near -stream areas, and perceived economic impacts to landowners. Our comments remain primarily concerned with anticipated benefits to water quality, ecosystem health, and the long-term and (hopefully) permanent benefits for the town's citizens and Gore Creek. Eagle River Watershed Council (ERWC) advocates for the health of the Upper Colorado and Eagle River watersheds to protect and enhance the high-quality natural and human values provided by rivers. Vigorously protecting our aquatic ecosystems ensures they will continue to provide their numerous social, economic, and ecosystem benefits in perpetuity. Gore Creek is the largest tributary of the Eagle River, dear to the hearts of everyone in the valley and visitors alike. It has faced numerous water quality and wildlife habitat challenges over time due to urban development and the presence of the interstate corridor. A mountain of work has been invested by the town, community members, and organizational partners like ERWC and Eagle River Water and Sanitation District (ERWSD) in recent years to correct and restore conditions in the stream. More work remains, and the current matter before the town is a vital component to achieving lasting success. Current issues at hand ERWC's understanding of the current ordinance proposal, based on public information and interactions with town staff, is that staff is recommending the following changes to existing code: • Use of the Ordinary High -Water Mark (OHWM) instead of centerline as the baseline for measuring setback distance, • Utilization of the 2 -year flood elevation, as estimated through industry -standard statistical engineering techniques and hydrologic inundation modelling, as the regulatory representation of the OHWM, • Changing building setbacks from the current 50' from the stream centerline instead to 25' from the OHWM, and; Eagle River Watershed Council is a nonprofit 501(c)3 organization that advocates for the health of the Upper Colorado and Eagle River basins through education, research, and projects. • Protecting a naturalized/non-mowed vegetation buffer for the first 10' of the setback as the riparian zone. ERWC background with Town of Vail riparian protections and Gore Creek water quality ERWC has a long history with Gore Creek issues, working in partnership with TOV and local and regional entities like ERWSD, US Forest Service, US Geological Survey, CO -Dept. of Transportation, and CO -Dept of Public Health & Environment to study water quality impairments on Gore Creek and develop strategies to address and reverse these issues. Local partnerships in the original Urban Runoff Group helped produce both the 2013 Gore Creek Water Quality Improvement Plan and the 2016 Gore Creek Strategic Action Plan. ERWC staff and partners contributed countless hours towards the completion of these efforts, which have culminated in numerous positive actions to -date by TOV to realize the vision laid out by the community. In 2016, the town began the process of implementing town recommendations, identifying nearly $9 million in potential future allocations for stormwater improvements, riparian restorations, and other stream protections. Since that time, the town has `walked the walk' in changing its own land use practices, increasing community fluency on Gore Creek water quality issues through numerous education/outreach campaigns, and undergoing an at -times difficult and contentious social process of reclaiming and naturalizing encroached public stream tract lands. Given the context of this work and the hard lessons learned, ERWC believes the town is well supported by its own history of action to take this next step and institutionalize these strongly - held community water quality values in updated town code. While education/outreach is an important strategy towards public acceptance of permanent solutions like code changes, over time it can become an impossible task without support from regulations. In communities like Vail, where property ownership turnover is very high, and many vacation properties have absentee ownership, constant re-education of the next generation of streamside homeowners is required. While education is one of the primary mandates of ERWC's mission, we also readily believe that ordinance and code is sometimes where the `rubber hits the road' so to speak in terms of our communities making good on their stated values surrounding environmental protections and functional ecosystems. In the context of all this past work, ERWC supports the maximum possible setback distance as the preferred choice for code adoption. The best -available current science would support an even larger setback if it were likely to be socially and economically acceptable to the community. We further support the maintenance of the initial portion of the setback in a naturalized vegetation state of un -mowed, native plant communities. Preservation of riparian zones for water quality is firmly science -based Science -based research and entities charged with supporting communities nationwide in protecting our water resources, such as the US EPA, have repeatedly advocated the value and function of riparian zones. The proposed amendments are somewhat less than the distances that a significant body of research recommends, which begin around 30 feet and, depending on the desired water quality protective functions, approach 100 feet in many instances. The proposed setback represents a reasonable compromise in the constant push -and -pull between ecosystem health and social uses that has occurred throughout Vail's development period. It recognizes the difficult situation that overhauling Vail's existing urban core and neighborhood development footprints already presents to the community's current leadership. Any dilution and weakening of the proposed setback will reduce its efficacy and likely result in a degraded ability to protect Gore Creek and tributaries. Eagle River Watershed Council, Page 2 of 5 Community -backed action to permanently protect streams The Gore Creek Action Plan identified 27 immediate action items and over 200 total action items to protect and improve stream health. It recommended TOV update its stream setback, riparian zone, vegetative buffer zone, and other water quality objective definitions in its code. Of the 27 items characterized as `high priority', updating this specific code language was recognized in Priority Action 2 and Priority Action 9, and it has significant nexus with Actions 11, 23, 24, 25, 26, and 27. This represents nearly 30% of the plan's High Priority Actions targeting the importance of riparian protections and increasing (over time and only during redevelopment opportunities), the distance that we build structures and landscape from streams. In addition to the multi-year process endured by the town staff, PEC, and council members to study and create these cornerstone environmental guidance documents, a community advisory group of many of the town's longest residents contributed countless volunteer hours to their completion and vetting. These changes to code represent the full realization of the values and effort embodied in these plans from your own citizens and prior PEC and Council members. The past societal tendency to view streams, including Gore Creek, merely as aesthetic features to be manipulated for architectural desires or purely for the enjoyment of streamside landowners, should be left to the past. By passing this ordinance, the community's values surrounding our rivers and streams will be locked -in via law, rather than just receiving mention in non-binding visioning documents. Scientific basis for the exchangeability between the Ordinary High -Water Mark and the Two -Year Flood elevation for land use decisions In reviewing the public discourse from PEC meetings and the questions fielded to commissioners and town staff, it is apparent that much confusion may exist regarding the usability of the 2 -year flood mark for permitting, and its substitutability for the OHWM. Federal law has established a definition for the OHWM, which has received various legal clarifications over time, and is frequently used by US Army Corps of Engineers in Clean Water Act permitting activities and other agency duties. This definition relies on the presence of physically -identifiable signs such as vegetation changes and soil characteristics that can be reasonably and relatively consistently identified during field investigations. State laws and agencies have generally followed suit with this definition, often with modifications reflective of local needs, to help delineate public -rights-of-way and riparian landowner rights. In practice, these field indicators are typically determined by domain experts (engineers, scientists, landscape architects, planners, etc.) and translated to usable survey and design datasets for development activities. The OHWM also has a strong relationship to the bankfull stage or bankfull flow, a term of importance in the fields of hydrology and fluvial geomorphology. Like OHWM, bankfull stage can also be defined in several ways, but is most -frequently defined as the height of water in its natural channel at its largest flows, just prior to incipient flooding of adjacent floodplains. Bankfull stage is also typically identified by a concurrent set of field observations that consider one or more indicators such as the top of point and lateral bars, changes or inflections in bank slope, vegetation clues, and erosional features. This elevation frequently is then identified at long-term USGS stream gauging stations and correlated with a specific stream discharge value and annual flood return frequency. Flood frequency analysis is a hydrologic or engineering statistical technique used to predict specific return periods or probabilities for a given stream flow value. It involves taking a record of annual high flows from a stream gauge, ranking them in order, fitting them to a statistical distribution curve (distributions often used are Weibull, log- normal, Log -Pearson III, etc.), and using this fitted curve to predict particular flood return Eagle River Watershed Council, Page 3 of 5 probabilities of interest, i.e. the 100 -year", "500 -year", "50 -year", 10 -year", "2 -year" return flows. These values are used to determine FEMA floodplains, and similar techniques are also used by engineers to size stream culverts or stormwater appurtenances such as vaults and outflow pipes. These days, the computations are done in complex software that can use the flood return frequencies of interest to produce 2-dimensional and 3-dimensional representations of the land areas that will be inundated at different flows. Return periods for the bankfull flow in Colorado may range from as little as a year to over five years or more in some locations. However, it is accepted in the hydrologic study and planning domains to use 1.5 or 2 years as a proxy for the bankfull stage that is responsible for maintaining the `active channel' portion of the stream channel. The `active channel' is highly analogous to the field -observed OHWM. The most -often used value in fluvial geomorphic work including physical channel restoration design is a 1.5 -year return flow. In this regard, the 2 -year value proposed by TOV staff is slightly more conservative towards water quality protection, as this will be a slightly higher water surface elevation. As noted above, water surface inundation elevations can be readily modelled in standard software created and used by US Army Corps of Engineers (i.e. HEC -RAS and other modelling packages). Any private civil engineering firm, hydrologic firm, or government planning office that has the technical capacity to perform this variety of work can produce survey -grade mapping outputs from publicly -available datasets that are usable by town staff, surveyors, and private planners. Although the model flood elevation results can be subject to change over time based on the datasets used, in the confined stream channel types present around Vail these changes should be largely insignificant over a multi-decadal time scale, except in cases of rapid or extreme channel re -alignments or avulsions associated with major flooding events, or in large areas of unconfined floodplain such as the Katsos preserve. Since the typical definition of OHWM is generally familiar to many technically -trained staff in the planning and engineering fields and is derived from field observations that are fairly responsive to individual site characteristics and conditions, it can be seen as advantageous for use. However, like most field methods, it can be just as fraught in practice and subject to individual bias or manipulation as any other. Gore Creek is a dynamic system, with annual spring flood magnitudes from snowmelt that are typically two orders of magnitude (100 times) the fall and winter baseflows. The stream system has high sediment transport dynamics (meaning it carries and re -distributes a lot of sand, gravel, and cobbles each year) and has undergone hugely significant human alterations to natural channel shapes between the mid -twentieth century and present day. Bank erosion, shifting gravel bars, and significant episodic lateral channel movements are all `typical' or `normal' within these mountain systems. At times, this can make the classical physically -observable clues for the OHWM difficult to discern and open to changing over time, and therefore potentially unreliable indicators of flow elevations and unreliable for consistent application in land use administration decisions. The modelled 2 -year flood elevation, with provisions or a process in place for local adjustment based on individual site circumstances, may serve as a more -consistent and easier to administer benchmark. For the purposes of administering town land use decisions and protecting streamside riparian zones for water quality and habitat function, it appears to ERWC that the proposed definition utilizing a surveyable 2 -year flood elevation is functionally and practically equivalent to the current physical -clues definition. If town staff believes that it will be a more -efficient and a relatively more -objective means to administer land use decisions than repeated individual site investigations for OHWM Eagle River Watershed Council, Page 4 of 5 determination, then ERWC supports this approach as it is a technically defensible and functionally adequate (and practical) substitute. Considerations of regulatory takings ERWC provides no claim of thorough understanding of the legal issues involved in what does or does not constitute a regulatory takings, and it is not our intent to provide legal advice to the town about the current issues, only convey our opinion as a community stakeholder. However, it is apparent that some residents (or their attorney representatives) have suggested the proposed ordinance changes represent a regulatory takings, potentially requiring compensation to land owners. It is our observation that town building codes already place a wide variety of requirements and constraints on homeowners that have not been challenged as creating a takings, and it is unclear why this proposal is materially or substantively different than those cases. TOV code examples that restrict, constrain, or control property owner's development rights on private land currently include: property line setbacks, road setbacks, roofline heights, stylistic and architectural design reviews, limitations on impervious area and developable lot percentages, limitations on parking, specification of landscaping requirements, etc. Any of these items could have been construed to impact property investment values or restrict the exercise of private property rights by landowners, yet none has been successfully challenged as a takings. Those examples of code restrictions derive from a variety of safety and/or aesthetic/social concerns and have been accepted by community members over time. Building regulations associated with the FEMA Special Flood Hazard Area (i.e., the 100 -year floodplain) also currently place significant existing constraints on near -stream structures and have not been held as a regulatory takings by courts in any state to our knowledge. Arguments over takings are diverting from the important issues at hand of protection of public environmental assets. Concluding remarks Riparian protections and setbacks are a science -based but socially -adjusted implementation of the values Vail community members and TOV municipal leadership have articulated repeatedly over many years in multiple plans and government actions. Institutionalizing these strongly held community values regarding water quality, stream protections, and ecosystem protection and function is the logical and correct next step in the town's path to restoration of Gore Creek health and its tributaries. ERWC supports the adoption of the ordinance in full, including the maximum possible setback at 25' or more, and inclusion of a naturalized vegetation zone of 10' at water edge. We encourage the PEC to move this matter to Council in its current form and push for adoption in the earliest reasonable timeframe. Thank you for the opportunity to comment on this matter. If you have questions regarding our statements, or require additional information to aid your decision-making process, please contact us at your convenience. Sincerely, Holly Loff Bill Hoblitzell Executive Director Water Resources Program advisory staff loff@erwc.org bill@lotichydrological.com Eagle River Watershed Council, Page 5 of 5 ALDERMAN BERNSTEIN R A l , Carrie S. Bernstein 720.460.4203 October 20, 2021 Via E-mail: PWadden@vailgov.com Mr. Peter Wadden Watershed Education Coordinator Town of Vail, Community Development Department 75 South Frontage Road West Vail, Colorado 81657 csb@ablawcolorado.com Re: Town of Vail Application for Stream Corridor Protection Ordinance/Proposed Amendment to Section 12-14-17 and Creation of Section 12-21-17 of Vail Town Code ("Application") Dear Mr. Wadden: Our firm represents Reggie D. Delponte Residence Trust No. 1 and Reggie D. Delponte Resident Trust No. 2, the owners of property located at 3070 Booth Creek Drive in Vail. We are in receipt of the September 27, 2021, Memorandum concerning the referenced Application and submit the following objections to the Town's proposal in advance of the public hearing scheduled for October 25, 2021, at 1:00 p.m. We request that you include this objection letter in the packet in advance of the public hearing. As we understand the Application, the Town of Vail ("Town") is requesting approval of a regulation that will delete the Vail Town Code ("Code") Section 12-14-17 altogether and add a new regulation, Section 12-21-17, which will significantly "change the waterbody setbacks" of Gore Creek. Initially, the new regulation in Section 12-21-17 is inconsistent with the purpose of Chapter 21 of the Code. The stated purpose of Chapter 21 is: [T]o help protect the inhabitants of the Town from dangers relating to development of floodplains, avalanche paths, steep slopes, wildfire hazard areas and geologically sensitive areas; to regulate the use of land areas which may be subject to wildfire, flooding and avalanche or which may be geologically sensitive; and to further regulate development on steep slopes; to protect the economic and property values of the Town, 101 University Boulevard, Suite 350 1 Denver, Colorado 80206 1 Phone 720.460.4200 1 Fax 720.293.4712 Alderman Bernstein October 20, 2021 Page 2 to protect the aesthetic and recreational values and natural resources of the Town, which are sometimes associated with floodplains, wildfire hazard areas, avalanche areas and areas of geological sensitivity and slopes; to minimize damage to public facilities and utilities and minimize the need for relief in cleanup operations; to give notice to the public of certain areas within the Town where floodplains, wildfire hazard areas, avalanche areas and areas of geologic sensitivity exist; and to promote the general public health, safety and welfare. The Application was submitted in order to address insufficient "quantify or diversity of insects" in Gore Creek, and "loss of riparian (streamside) vegetation." See letter from Town, dated August 23, 2021, referencing "Notice of Stream Tract Encroachment," and Application, page 3. There is no evidence of any concerns in the Gore Creek area related to development of floodplains, avalanche paths, steep slopes, or wildfire hazard areas, and are not part of the Town's defined "geologically sensitive areas," as defined in the Code, Section 12-21-13. More problematic, however, is that the proposal will prohibit nearly all use of private property within an undefined and inconsistent area. The proposal states that "no work" may be done within the no disturbance area, including landscaping or "disturbance," which is undefined. As shown in the aerial photos in the Application, the 25' use prohibition extends into backyards and existing building footprints in many areas, beyond the existing setback. The Town's proposal would prohibit any use of these areas. Although certain uses in these areas ("existing features and structures") might fall under the Town's nonconforming use regulation (Section 12-18), other continued uses must cease altogether, including mowing and landscaping. That means that the new Section 12-21-17 will be retroactively applied to existing property rights and uses along Gore Creek that existed prior to its enactment. Except for those existing "features and structures" within the 25' prohibited area, property owners can no longer continue their current landscaping or mowing of 25' of their property. Colorado law prohibits such retrospective legislation. Further, any changes to existing uses, including structures, that would be permissible under the current Code, are prohibited if the Application is approved. If, for example, our clients wanted to add to or expand their current patio by just one foot or add a firepit, the new Section 12-21-17 prohibits such a change because, on our clients' property, the 25' mark extends up to their patio and home. Moreover, the proposed Section 12-21-17 does not describe how landowners are to determine the required non -disturbance areas, as there is no existing and uniform survey of the Original High Water Mark ("OHWM"). The OHWM will change over time and landowners have Alderman Bernstein October 20, 2021 Page 3 no way of complying with use restrictions if the non -disturbance area changes annually or bi- annually. Further, the proposal will impact significantly more property than the Gore Creek beds. The non -disturbance areas do not follow the creek alone, but also circumvent stream banks and eddies that result in significant loss of property rights through use restrictions that are not related to the Gore Creek OHWM. Once again, as shown in the aerial photos in the Application, the 25' line prohibits use of private property in many areas that are not within 25' of Gore Creek. Finally, the Application, if approved, will constitute a compensable regulatory taking of private properties. The Town's proposal imposes a very high interference with private property rights in the area of Gore Creek and its streams and eddies, prohibiting any use of those areas, which constitutes a compensable taking. Animas Valley Sand & Gravel, Inc. v. Bd. Of Cty. Comm'rs, 38 P.3d 59, 65 (Colo. 2001). Owners of these properties, such as our clients, have an investment -backed expectation to use and develop their own backyards, which is protected under Colorado law. G&A Land, LLC v. City of Brighton, 233 P.3d 701, 706 (Colo. App. 2010). If the Town is intent on ensuring an area of no disturbance of 25 feet from the banks of Gore Creek, it must acquire those property rights through eminent domain and pay just compensation to property owners, including our clients. Just compensation under these circumstances will be costly to the Town because, for most owners, including our clients, the property will essentially lose its most valuable attribute — frontage along Gore Creek — and the value of such properties may diminish by up to one-half. For the reasons described above, our client opposes the Application, and we urge the Town to deny the request therein. Very truly yours, ALDERMAN BERNSTEIN LLC Carrie S. Bernstein cc: Reggie D. Delponte (via email) From: Pedro Campos To: Peter Wadden Cc: Tim Halbakken; Jesse Gregg; Caroline Schoeller Subject: RE: A request for your input - Zehren and Associates reply and input. Date: Tuesday, April 6, 20217:36:09 PM Hi Pete, Thanks for the opportunity to provide input. I've asked our staff to review and here is a synopsis of our feedback, compiled by Tim Halbakken: First off we recognize and appreciate your passion for these issues. Tim, Jesse and I have all participated in Restore the Gore presentations you have made and it is clear the Town has the right person tackling these issues. As local invested professionals and residents 'downstream' we feel it's an important and interesting cause that the TOV and the environmental and sustainability department is pursuing. All three measures you are pursuing are well supported and well documented by the research. We assume that the Town Council has directed your team to develop these type of ordinances and its seems you are well on your way with the activities planned in May We are particularly supportive of adopting the state pesticide regulations at the local level, thus allowing enforcement by town officials. We can think of a number of offending properties that could be approached and then supported (possibly financially) to turn their riparian edge back to a natural state. As documented, the reduction of pesticides has had the most immediate and direct impact on stream health, and so we strongly support enforcement. It is interesting that the last documented enforcement case was in 2015, possibly an indication that more frequent / periodic audits may be necessary. The centerline offset argument makes a lot of sense as well. From prior experience it's too difficult to define and it makes more sense to do an offset from the normal annual high water mark (AHWM) Initially with the riparian zone requirement, we initially contemplated that the prevalent reaction might be: "that's going to be considered a taking". However, additional research and homework reveals that 5 to 10' would not be considered a legal taking. So if this falls within legal framework we are in support and for the health of the stream and its ecosystem. In short, we support the initiative in full and advocate that the local landscape industry should too. It is likely some landscape companies are offenders of the pesticide regulations. In this regard it might take a fine structure to get any non-compliant groups to endorse and follow the ordinance. One of Tim's ideas is that perhaps if caught violating the rules these groups should make up for the fine by planting some riparian areas. hope this summary helps and that you succeed in your efforts on behalf of the Town, and the Gore Creek environment and its ecosystem. Very sincerely on behalf of the Zehren and Associates Landscape Architecture and Land Planning team and importantly as leadership partners in the Town's Restore the Gore efforts. Pedro Campos, PLA Principal, Landscape Architect & Land Planner 0: (970) 949-02571 F: (970) 949-1080 From: Peter Wadden <PWaddenC@vailgov.com> Sent: Tuesday, March 9, 20213:47 PM To: Pedro Campos <pedrocC@zehren.com> Cc: Tim Halbakken <timhC@zehren.com>; Jesse Gregg <iessegC@zehren.com>; Caroline Schoeller <carolinesC@zehren.com> Subject: RE: A request for your input Thanks Pedro and team! I would really appreciate feedback by the end of March if that seems feasible. I certainly understand it is a lot to review so I would be happy to talk through it with you if that would save you time in wrapping your head around the details. Pete From: Pedro Campos <pedrocC@zehren.com> Sent: Tuesday, March 9, 20213:32 PM To: Peter Wadden <PWaddenl@vailgov.com> Cc: Tim Halbakken <timh(@zehren.com>; Jesse Gregg <iesseg(@zehren.com>; Caroline Schoeller <carolines(@zehren.com> Subject: RE: A request for your input Hi Pete, Thank you for reaching out and sharing. We will definitely review and provide comments. In addition to being a local business active in community and environmental planning and design Jesse, Tim, and myself are leadership partners in the Restore the Gore effort from our attendance of past workshops and seminars. It is both important and appropriate for us to weigh in. We will compile our thoughts and ideas into one response. Is there a particular date that would help you receiving our input? Let us know and thanks for taking these issues on! Regards, Pedro Town of Vail Planning and Environmental Commission and Town Council, We represent the Vail Townhouse Condominium Association (VTCA) as an elected Board of Directors. Our Association includes eleven units with Gore Creek frontage in the Village core at 303 Gore Creek Drive. The membership of VTCA have been watching with interest the proposed changes to the stream setbacks throughout the Town of Vail. Protecting Gore Creek is one of our most important goals. Creek frontage was one of the most important factors in our decisions to purchase at VTCA. We appreciate and commend the Town's desire to further the protection of critical riparian zones along Gore Creek's banks. The change of calculation methods is not altogether opposed by our Association; however, we would recommend a revision of the new setback amount from 25 feet to 20 feet from the ordinary high-water mark. This small change would reduce the future impact on our Association as well as our neighbors as the proposed 25 foot setback will make our existing building nonconforming. We believe that this new setback of 20 feet from the ordinary high-water mark still accomplishes the riparian zone protection that we and the Town seek, while preserving future development and expansion possibilities for our owners. We would appreciate the Commission's and Council's careful review of our request and welcome any further questions or discussion from the Commission or the Town Council. Respectfully, Dr. Richard Parker, President Vail Townhouse Condominium Association rparkermd@msn.com From: Heather Houston To: Peter Wadden Cc: "Dominic Mauriello"; Sharon Cohn Subject: Vail Stream Setback - Comparison of Methodologies Date: Tuesday, December 28, 20214:50:56 PM Attachments: 12 16 21 OHWM Methodoloav Comparison Map.pdf Good Afternoon Peter, I hope you are enjoying the holidays. Our team wanted to provide you with the attached graphic which compares the OHWM based on the two methodologies being discussed for determining the stream setback in Vail. • The map shows the Field -Located Ordinary High Water Mark (OHWM) as well as the 2 -year inundation line. The area between these lines is highlighted in orange. • As expected, these two lines do not match up well - this is because we do not think the 2 -year flood is a good representation of the flow that creates the OHWM in the snowmelt-driven system in Vail. We have been advised it is likely closer to a 1.5 -year inundation. • As expected, where the banks are steep, there is not much of a lateral shift between the two lines. However, where the bank has a gradual slope or connected floodplain, there will be a much greater difference between the two lines. • The hydraulic modeling method relies upon the accuracy of the inputs (topography and flow) to infer where the line might go (through hydraulic modeling calculations). • In contrast we marked the line in the field - a direct measurement - and we don't believe this is an arbitrary method as was mentioned in our prior call. In fact, it is a repeatable method that is used by the U.S. Army Corps of Engineers. This method is less expensive for a landowner, repeatable, many ecologists are trained to identify it, and does not rely on having accurate topographic or flow data. All that is needed is a qualified professional to flag and then survey the line. • In our opinion, the regulatory OHWM and stream setback should be defined by field indicators. You had requested our CAD files - I will pull together an Autocad drawing that includes our linework for the attached graphic and will send it your way. Please let us know if you have questions. Thanks, Heather HEATHER HOUSTON PRESIDENT 8 SENIOR ECOLOGIST /7�\ BIRCH ECOLOGY BIRCH ECOLOGY, LLC HEATHER@BIRCHECOLOGY.COM https://link.edgepilot.com/s/adb77133/8EyZwVrZnkSpBhudZf_GoA? u=http://www.birchecology.com/ (720) 350-2530 (mobile) P.O. Box 170 429 Main Street Lyons, CO 80540 Hi Peter, That seems like a pretty mild request compared to what we do on forest. We typically apply 100' stream protection buffers to Forest Service projects, based on our Watershed Conservation Practices Handbook (attached). Melvin or Justin can speak better to that aspect, but I've attached a 2006 version of the handbook that I could find. I'm including Justin Anderson, our Forest hydrologist, as he may have a more recent and/or concise version and additional comments. Caveat: Since this is private land, I need to be careful in what I write or say, and realize that we do things very differently on forest than private largely because of the different size and scale, goals, economic drivers, etc. Bigger setbacks that are better able to represent riparian and stream corridors are incredibly important to wildlife. They provide ample water and plant availability for neotropical migratory birds, and the destruction of these areas has been considered the most important reason for bird species declines in the West. From this NRCS handout (about the Great Basin but applicable to Colorado as well): "A healthy riparian buffer protects the stream from influxes of pollution and sediment and protects upland areas by managing stream flow during floods. Plants are critical for stream stabilization and provide food and shelter for wildlife." nres143 010098.pdf (usda.Rov) In fact, 80 percent of wildlife species in the West depend on riparian areas for at least some point of their life cycle. Watch: Supporting Colorado's River Restoration I Audubon Rockies If you need more information on the wildlife -side, let me know. I've provided at least some information regarding how important river and stream corridors are for wildlife. Devin may be able to speak to this more, but with hunting season he may be a bit out-of- pocket. Hope this helps, Jen Prusse Wildlife Biologist She/Her/Hers Forest Service White River National Forest, Eagle -Holy Cross Ranger District p: 970-827-5160 lennifer.l. prusse(Musda.gov 24747 US HWY 24 Minturn, CO 81645 www.fs.fed.us M Caring for the land and serving people From: Crane, James To: Peter Wadden Subject: RE: A request for your input on proposed TOV ordinance to protect Gore Creek. Date: Thursday, March 25, 2021 10:15:52 AM Attachments: imaoe002.ipo imaae003.ii)a Sundial 10footandOHW M. pdf Sundia125ohwmexistina.pdf StreamCorridorPresentation 030221. pdf Good Morning Pete, Thanks for your email and March 18 phone call explaining how the proposed TOV ordinance to protect Gore Creek would impact Sundial's streamside property. I shared our phone conversation and the attached information with our Sundial HOA board of directors and am pleased to report that the board is supportive of the proposed ordinance and its goals of restoring streambank habitat and environment. Thank you for sharing the proposed ordinance and inviting public comment. With Best Regards, James Crane, President Sundial HOA From: Peter Wadden <PWadden@vailgov.com> Sent: Thursday, March 18, 20219:36 AM To: Crane, James <cranej@wustl.edu> Subject: A request for your input Hi Jim - It was good speaking with you this morning. Thanks again for taking the time to present this proposed Stream Corridor Protection Ordinance to your fellow board members. They may be interested to watch the presentation I made to Vail Town Council on March 2 explaining the vision for this ordinance. The relevant portion of the meeting begins about 1:14:00 into the linked video. I have also attached a .pdf of the slides from that presentation if they want to just click through and read those. There are two maps attached. Each shows the Ordinary High Water Mark (OHWM) in blue. As I explained on the phone, our proposed ordinance would not impose any restrictions at this line. That line is just a basis for the 10 foot vegetative and 25 foot building setback I am proposing. You can see that 10 foot "no mow zone" in red on one of the maps. The other map shows our existing building setback (50 feet from Gore Creek centerline) in yellow and contrasts it with the new proposed building setback which would be 25 feet from OHWM in pink. I am happy to field questions or feedback from anyone you share this with. I am hoping to present this proposed code change to the Planning and Environmental Commission in late April or early May. CLIMATE ACTION COLLABORATIVE October 21, 2021 TO: Mayor Chapin and Vail Town Council RE: Gore Creek Stream Corridor Protection Ordinance Dear Mayor Chapin and Vail Town Council members, The Climate Action Collaborative (the Collaborative) is writing to voice support for the Stream Corridor Protection Ordinance brought forward by the Town of Vail (ToV). The Collaborative is focused on helping Eagle County become sustainable and resilient in the face of climate change. Sustainability is not just reducing carbon emissions, but also involves balancing ecology, human impact, and economics to prolong a thriving community. Maintaining the quality and quantity of the natural resources we are dependent on will help Eagle County stay resilient and adapt to future impacts. Water is a resource that is highly sensitive to the impacts of climate change, and one we must sustain, in all capacities of the word. Our community is heavily dependent on sufficient supply and healthy quality to support our surrounding ecosystems, our people (local and beyond), and our recreation and tourism economies. Increasing the vegetative buffer between development impact and a natural resource is critical to proper restoration of Gore Creek and its tributaries. The Collaborative calls for actions that support water quality and quantity in our 2020 Climate Action Plan (CAP). The CAP aligns its water -related strategies with those of the Eagle County Community Resilience Plan. It includes actions to support water resource improvements, such as restoration of riparian zones and support of "water planning efforts that consider potential population growth in regard to Eagle County's water resource carrying capacity." Because the ordinance would also apply to new developments, we believe it is in line with these actions. Additionally, we facilitated a Sustainable Building Code Task Force in early 2020 to recommend local codes that would support the achievement of CAP and other sustainability goals. One of those was a Sensitive Site Setback of buildings to preserve riparian zones and water quality, ensuring new developments and existing buildings minimize disturbances and promote biodiversity. We are committed to supporting efforts that preserve the sustainability of this resource, and consequently, resilience of the community. We thank you for your efforts in reviewing the ordinance, our letter of support, and for continuing your efforts in the Restore the Gore movement. Sincerely, Kimberly Schlaepfer Manager Climate Action Collaborative, Walking Mountains Science Center CLIMATE ACTION COLLABORATIVE Climate Action Collaborative Community Partners Town of Avon Town of Basalt Eagle County Town of Minturn Town of Eagle Town of Red Cliff Town of Vail EagleVail Metro District Edwards Metro District Colorado Mountain College — Edwards Campus Eagle County School District Vail Mountain School ECO Transit Eagle River Water & Sanitation District Eagle Valley Land Trust Holy Cross Energy Mountain Recreation RA Nelson R&H Mechanical Traer Creek Metro District Vail Daily Vail Health Vail Honeywagon Vail Resorts Vail Valley Partnership The Community Market Mountain Youth Vail Valley Foundation Walking Mountains Science Center From: Christie Hochtl To: Peter Wadden; LudikCalcomcast.net; Kevin Hochtl; Karl Hochtl Subject: Proposed Stream Corridor Protection Ordinance Date: Saturday, October 23, 20212:44:40 PM Good Afternoon PEC, Ludwig Kurz, and PeteWadden, Please pass the proposed Stream Corridor Protection Ordinance with the 10 foot no mow zone and the 25 foot setback from the high water mark for buildings. This ordinance will help our efforts to "Restore the Gore" and restore habitat for fish and birds, etc. Thank you, Christie and Karl Hochtl 890 Red Sandstone Circle Vail, CO 81657 970 476 1125 landline 970 376 1893 c-jbhochtl 4gmail.com To Whom it May Concern As the co-owners of Mountain Organic/Pristine Landscaping, we support the new river corridor setbacks proposed by Pete Wadden and the Town of Vail. All of our clients on Booth Creek currently abide by the 25' set back. Every client made the decision to follow the suggested guideline on their own accord as they all felt it necessary to do their part to help increase the health of Gore Creek. The increased natural footage with the 25' set back has enhanced the overall look of our client's landscaping along Gore Creek, not to mention helping benefit the health and viability of the creek and riparian habitat. Gore Creek is vital to many aspects in the Vail Valley including mammal environs, drinking water, fish habitat and more. By simply increasing native grasslands and planting a few shrubs, we as a collective can start bringing Gore Creek back into EPA standards. Our rivers can no longer support the enormous amounts of pollutants we willfully cast off into our local water systems. As businesses, home owners and government, to increase riparian zones along our much valued creeks and rivers shouldn't be a big ask, it should be part of our moral obligation. Kelli and Kreston Rohrig From: Kaitlyn Merriman To: Peter Wadden Subject: In Support of the Proposed Stream Corridor Protection Ordinance Date: Monday, October 25, 2021 12:40:26 PM H i Pete, I am writing to you to officially support the proposal for the stream corridor protection ordinance. Please pass the proposed Stream Corridor Protection Ordinance with the 10 foot no mow zone and the 25 foot setback from the high water mark for buildings. This ordinance will help our efforts to "Restore the Gore" and restore habitat for fish and birds, etc. Thank you, Kaitlyn Merriman From: Dominic Mauriello To: Peter Wadden Cc: Tom Kassmel Subject: Re: A request for your input Date: Monday, March 15, 20213:23:35 PM Hi Peter: Thank you again for reaching out to me. I have taken a look at the impact of the proposed setbacks on the Evergreen Lodge, one of my clients. This property was addressed extensively in an amendment to the Lionshead Redevelopment Master Plan and was part of a land swap with Vail Health. A lot of work was put into a preliminary design to make sure that Vail health and Evergreen Lodge would each have their needs addressed on Lot F-1. For this analysis Evergreen relied upon the current stream setbacks and zoning setbacks. An increase in these setbacks will have a detrimental impact upon the Evergreen Lodge property. We did a quick study of the current setbacks versus the 25' setback proposed (attached). One of the major consequences of the proposed setback is that, unlike the centerline setback, there are stream banks and eddies that can affect the impacts to private property. The Evergreen is one of these cases even when you drop the setback to 20'. 20' certainly works a lot better except where there is a random stream bank especially related to Lot F-1 where literally the wide of the development on the project was planned down to the foot. It seems to me that you can still accomplish many of your goals by leaving the stream setbacks as they are measured today from the centerline but adding in the proposed 10' natural riparian buffer. Even with the 10' riparian buffer, you are going to need to provide some exceptions or maybe some performance standards or alternatives that allow for things like the community path that runs along Gore Creek to encroach. Maybe the regulation could be written that the setbacks are 30' from the centerline of the stream but in no case shall there be a setback of less than 10' from the OHWM. That way you are always guaranteed that the riparian zone can exist to help protect the creek. I am hoping we can come up with something that will work for the Town and the Evergreen Lodge. The Town's proposal is causing a significant amount of anxiousness based on the millions that were spent to work on the swap with Vail Health. Please let me know the schedule for reviewing this with the Town Council. Thanks, Dominic F. Mauriello, AICP Mauriello Planning Group, LLC PO Box 4777 2205 Eagle Ranch Road Eagle, Colorado 81631 , A^ COLORADO r Parks and Wildlife Department of Natural Resources Area 8 - NW Region 0088 Wildlife Way Glenwood Springs, CO 81601 P 970.947.2969 1 F 970.947.2936 Honorable Dave Chapin October 21, 2021 Vail Town Council Town of Vail 75 S. Frontage Road Vail, CO 81657 Re: Gore Creek Stream Corridor Protection Ordinance Dear Mayor Chapin, Town Council 8t Planning Et Environmental Commission members, Colorado Parks and Wildlife (CPW) is responsible for the management and conservation of wildlife resources within the state. Our statutory mission is implemented through our 2015 Strategic Plan, and the goals it embraces are designed to make CPW a national leader in wildlife management, conservation, and sustainable outdoor recreation to inspire current and future generations to serve as stewards of Colorado's natural resources. In many ecoregions in the west, healthy riparian areas are a resource that is integral for overall water quality and ecosystem health. CPW understands that many of the riparian areas within and adjacent to the town limits of Vail have already been impacted by human development and presence, further emphasizing the need to protect, and restore the remaining corridors. Insulating the riparian zone from continued impacts will help many wildlife species that require these habitats. CPW supports the greatest possible setback in riparian areas, and is supportive of the Town of Vail's (TOV) proposed no -mow -zone and updated setback requirements. Riparian zones typically comprise a small percentage of the landscape, often less than 1 %, yet they frequently harbor a disproportionately high number of wildlife species and perform a disparate number of ecological functions when compared to most upland habitats. Almost all wildlife species that exist in Colorado require riparian habitat to survive. Riparian areas provide food, water, refuge from heat and cold, cover from predators, and breeding and rearing areas for a wide variety of terrestrial, avian, and aquatic species. Much of the native riparian habitat in the state has been altered or removed in some way, be it in the form of housing developments, trail system development, commercial uses, or even agricultural development. Studies have shown that riparian areas act as corridors, and many terrestrial species prefer to move through wider riparian corridors as opposed to more narrow and denuded riparian corridors (Hilty, et al, 2004). In addition, the tighter the corridor is in relation to the length by which it is restricted will deter wildlife use and act to further fragment an already heavily fragmented ecosystem (even a long, tight riparian corridor would act as a barrier to wildlife movement). Furthermore, a healthy riparian zone - the vegetated buffer between the aquatic and upland habitats - can serve to protect and improve water quality. Permanent vegetation functions to trap, and remove various pollutants, contaminants and sediments. Many wildlife species use riparian areas year round, including mammals, amphibians, reptiles, crustaceans, birds, invertebrates, and fish. Other wildlife may only use the area seasonally OF 0010 Dan Prenzlow, Director, Colorado Parks and Wildlife • Parks and Wildlife Commission: Taishya Adams • Robert W. Bray • Charles Garcia • Marie Haskett Carrie Besnette Hauser • John Howard • Marvin McDaniel, Acting Vice -Chair • Luke B. Schafer • Eden Vardy • James Vigil, Secretary • Michelle Zimmerman, Acting Chair * r J for a variety of reasons, including moving from summer/fall range to winter grounds, nesting/breeding/rearing young. Various raptor species have been known to use the area for wintering, roosting, and nesting. Furthermore, elk, moose, and deer usually calve and fawn in areas within 400 feet of free flowing water and on hillsides with dense vegetation in the spring, when snow typically precludes movement higher up onto the slope. Protection of any remaining intact riparian areas is essential, as we continue to see significant declines of deer and elk populations in the Gore and Eagle Valleys. Gore Creek is identified as a "Gold Medal" fishery, defined as "a lake or stream that supports a trout standing stock of at least 60 pounds per acre, and contains an average of at least 12 quality trout per acre. Additionally, anglers contribute significantly to the local Eagle County economy ($28.7 million, CPW 2012). Healthy riparian areas that are properly vegetated are a critical contributor to stream health. During low water years, it can shade the stream during hot summer months and provide cover for fish that are more exposed in shallower waters. Riparian areas also provide food input in the form of invertebrates and plant matter utilized by both fish and aquatic macroinvertebrates as food. Impacts to our local fisheries during stressful summer months have recently been documented and are contributing to the local decline of certain species of sportfish. Reductions to the amount of protected riparian cover will only add to the impacts affecting the local fisheries, this could lead to reduced angling opportunity and experience essential to the local economy. The proposed Gore Creek Stream Corridor Protection Ordinance will insulate the creek to continued impacts and provide for improved water quality, stream health and recreational opportunities, all essential to local communities. Vail is known for its beautiful, wild landscapes and diverse wildlife supported by the creek corridors that run through the heart of the town. Not only does the natural surroundings and wildlife draw many visitors to the area, it characterizes the high quality of life that entices people to live here, as well. Our natural resources, supported by protected and healthy riparian areas, are a significant economic driver to our local economy. CPW strongly encourages municipalities to do everything they can to be active stewards of our natural resources when developing their communities. Please consider approving the proposed Gore Creek Stream Corridor Protection Ordinance. CPW appreciates the opportunity to comment on this stream protection ordinance and looks forward to continued work with the town in conserving the natural resource. If you have any questions or concerns please contact District Wildlife Manager Devin Duval at 970-930-5264. Sincerely, Devin Duval District Wildlife Manager - Vail OF 0010 Dan Prenzlow, Director, Colorado Parks and Wildlife • Parks and Wildlife Commission: Taishya Adams • Robert W. Bray • Charles Garcia • Marie Haskett Carrie Besnette Hauser • John Howard • Marvin McDaniel, Acting Vice -Chair • Luke B. Schafer • Eden Vardy • James Vigil, Secretary • Michelle Zimmerman, Acting Chair * r J From: Matt Gennett To: Peter Wadden Subject: FW: Proposed Ordinance on Stream Setbacks Date: Tuesday, December 7, 20214:34:41 PM FYI — (it is addressed to you but you don't appear to be listed as a recipient) From: Dominic Mauriello <dominic@mpgvail.com> Sent: Tuesday, December 7, 20214:28 PM To: Matt Mire <jmm@hpwclaw.com>; Kendra Carberry <klc@hpwclaw.com>; Greg Roy <GRoy@vailgov.com>; Jonathan Spence <JSpence @vailgov.com>; Kristen Bertuglia <KBertuglia@vailgov.com>; Matt Gennett <MGennett@vailgov.com> Cc: Allison Kent <allison@mpgvail.com>; Sharon Cohn <sharon@solarisvail.com>; Heather Houston <heather@birchecology.com>; Matt Wadey <Wadey@alpinecivil.com>; Chad Cusworth <chad@solarisvail.com> Subject: Proposed Ordinance on Stream Setbacks Hello Peter and Town of Vail staff: We have completed a preliminary review of the ordinance that you sent over earlier today. I know you asked that I wait to review another version but we thought it was necessary to express some concerns about this version. Please share this email with the PEC and Town Council. This version goes well beyond the prior versions by heavily restricting what can occur in the new 25' riparian zone. Previously what was proposed was a 25' building setback with a 10' riparian zone. In the prior version things like patios and walkways were allowed within the 25' setback but not allowed in the 10' zone. We are very concerned with this change and its impact on properties. We are still troubled with the definition of the Ordinary High Water Line. What you have proposed is not the ordinary high water mark or line but rather a two-year flood line. Those are not the same thing. It has taken us a couple of months to translate and plot the Town's data in recognized survey system and what your data indicated to us are some very significant deviations between the hydraulic model and field conditions with some deviation as much as 9' or more. We are concerned that the average landowner is going to find the data very difficult to represent on a plan. The Town's data set should only be used for a high level indication of a setback line. We don't believe that there needs to be a hearing with the Town Council to use actual field data especially if verified by the Army Corps. The two methods should be allowed. Section E is very confusing. First as stated above this section should be modified to reflect that either method is allowed for measurement. If there was a need to appeal a decision of staff related to the high water mark, that should be handled by the PEC just like any other appeal. This also allows there to be an appeal of the PEC decision to the Town Council. An appeal of the Town Council decision would mean going straight to court which seems unreasonable. The decision should be less political in nature and handled by the PEC. Additionally, still in Section E you either need to define wetlands scientist or use a more common provision such as a "qualified wetland consultant." This section is confusing as it is unclear if one needs to have both a wetland consultant prepare a report with a verification letter from the Army Corps OR have an engineer provide a hydraulic study or both. I think the intent is to have one or the other and not both. The Army Corps is not going to review and approve a hydrologic model as they use physical parameters from the field. Why is there a need to have the town hire a hydrologist if the Army Corps is verifying the ordinary high water line or mark? is this only necessary if a new hydraulic model is proposed? We also believe, based on the data being proposed by the Town, that the building setback should be 15' to account the change in methodology being proposed. If using the Army Corps definition of ordinary high water mark, then 20' may be the more appropriate setback. We previously provided comments related to invasive plant species and the need to need to allow for native landscaping for restoration of the 10' riparian zone. We note that these comments were not included and we think they should be (reference letter from Birch Ecology). We believe that what is now proposed will have a significant impact on private property rights and impair my client's ability to redevelop the Evergreen property in a reasonable way. We think this ordinance still needs a lot of work and it is apparent that to -date our input is being largely ignored. We are happy to meet and discuss our initial comments further. Thanks, Dominic F. Mauriello, AICP Mauriello Planning Group, LLC PO Box 4777 2205 Eagle Ranch Road Eagle, Colorado 81631 970-376-3318 cell https://link.edgeoilot. comVdOa9d2ed/OAkUpKhAXEa7cP:4jbYipGw? u=http://www.mpgvail.com� Ali,. BIRCH ECOLOGY October 18, 2021 Peter Wadden & The Planning and Environmental Commission Town of Vail 75 S. Frontage Road Vail, CO 81657 RE: Town of Vail Proposed Stream Setback Regulations Dear Peter and Commission Members, On behalf of the project team from the Evergreen Lodge, we have reviewed the Town of Vail's September 27, 2021 proposed revisions to the stream setback regulations, and have a few recommendations and suggestions: 1. Definition of the Ordinary High Water Mark (OHWM) The proposed regulations would define the OHWM "based on the average 2 -year flood line on Gore Creek and its named tributaries which can be established by survey using elevation data available from the Community Development Department." • For a snowmelt-driven system such as Gore Creek through the Town of Vail, it is our understanding that the 1.5 -year flood line is more likely to represent the flow which corresponds to the Ordinary High Water Mark. • For the purposes of Clean Water Act jurisdiction, the U.S. Army Corps of Engineers defines the Ordinary High Water Mark as "that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." 33 CFR 328.3(e) • The U.S. Army Corps of Engineers has a well-established methodology for defining the Ordinary High Water Mark based on field conditions, as detailed in the attached Regulatory Guidance Letter No. 05-05. The guidance under Section 3(B) provides a "list of physical characteristics" that "should be considered when making an OHWM determination, to the extent that they can be identified and are deemed reasonably reliable:" BIRCH ECOLOGY LLC • P.O. BOX 170 •429 MAIN ST. • LYONS, CO 80540 •720-350-2530 • W W W.BIRCHECOLOGY.COM Ali,. BIRCH ECOLOGY o Natural line impressed on the bank o Shelving o Changes in the character of the soil o Presence of litter and debris o Wracking o Vegetation matted down, bent or absent 0 Sediment Sorting o Leaf litter disturbed or washed away o Scour o Deposition o Multiple observed flow events o Bed and banks o Water staining o Change in plant community • Given that there is already a well-established methodology based on the existing physical conditions, which is a direct measure of the OHWM in the field, we recommend the Town of Vail also adopt the Corps' definition and methodology for determining the Ordinary High Water Mark as a basis for establishing the stream setback. • The current methodology for establishing the setback based on the centerline of a stream or creek is to identify the OHWM on both sides, then establish a center between the two banks. This requires the OHWM to be mapped on both sides and the setback distance does not take into account the width of the stream, so a wide channel could end up with only a narrow buffer area. • We agree that the OHWM is a more appropriate baseline for establishing the stream setback vs. the centerline of the channel. It would only need to be located on one side in order to establish the setback and would account for variable channel widths. 2. Riparian Buffer and Stream Setback Distances The proposed stream setback rule would establish a 25 -foot setback from the Ordinary High Water Mark and a 10 -foot Riparian Zone along the inner edge, which would be a "protected area to remain as native vegetation and natural materials." Certain activities would be restricted within the Riparian Zone to promote the goals of the Gore Creek Strategic Plan - to improve the water quality and habitat conditions of Gore Creek and its tributaries. • In terms of functionality, the 10 -foot Riparian Zone is the most valuable component of the 25 -foot setback. This is where runoff will be filtered and it will be the most important part for wildlife habitat. BIRCH ECOLOGY LLC • P.O. BOX 170 •429 MAIN ST. • LYONS, CO 80540 •720-350-2530 • W W W.BIRCHECOLOGY.COM 7,IN A, BIRCH ECOLOGY • Building setbacks are helpful but a difference between 20 or 25 feet is not significant if they both have the same 10 -foot wide Riparian Zone with a bluegrass lawn or parking lot for the remainder of the setback width. • One option which should be considered is to allow for a variable building setback if the width of the Riparian Zone is increased correspondingly. For example a building setback could be reduced by up to five feet (from 25 to 20 feet) if the width of the Riparian Zone is increased by up to five feet (from 10 to 15 feet). • This approach could allow some flexibility in setback widths to reduce the number of non- conforming properties. It would still be consistent with the goals to improve water quality and habitat because it would increase the width of the Riparian Zone - where the most important ecological functions would occur - by as much as 50%. 3. Additional Recommendations for the Riparian Zone • The draft language states that "no work, including but not limited to, mowing, landscaping, grading, or disturbance" ... shall be permitted 'Within the Riparian Zone" ... "with the following exceptions, subject to Design Review Board approval: (a.) Removal and management of State of Colorado listed noxious weeds." We recommend that this provision be expanded to include "Removal and management of State of Colorado listed noxious weeds and other aggressive, introduced species." There are many examples of introduced plants which should be removed to maintain habitat quality but they are not specifically state -listed noxious weeds, so broadening this language would be consistent with the goal of protecting and improving riparian habitat quality by permitting removal of these plants. We recommend adding "Native habitat restoration" as one of the exempted activities. • Consider adding language to the Riparian Protection and Waterbody Setback Regulations which states "property owners will be encouraged to conduct native habitat restoration if the Riparian Zone on their property is dominated by non-native species or is in poor condition." • Consider adding language which states "residents will be encouraged to minimize foot paths and vegetation trampling within the Riparian Zone, and to locate creek access paths to avoid the most sensitive areas." This could be coupled with the provision to have a path of no more than 4 feet wide, with a permeable surface, to minimize impacts within the Riparian Zone. BIRCH ECOLOGY LLC - P.O. BOX 170 •429 MAIN ST. •LYONS, CO 80540 •720-350-2530 •WWW.BIRCHECOLOGY.COM Ali,. BIRCH ECOLOGY We would be happy to further discuss these recommendations and look forward to meeting with you. Sincerely, 4AAb�n-� Heather Houston President & Senior Ecologist BIRCH ECOLOGY LLC • P.O. BOX 170 •429 MAIN ST. • LYONS, CO 80540 •720-350-2530 • W W W.BIRCHECOLOGY.COM REGULATORY GUIDANCE US Army Corps LETTER of Engineers© No. 05-05 Date: 7 December 2005 SUBJECT: Ordinary High Water Mark Identification 1. Purpose and Applicability a. Purpose. To provide guidance for identifying the ordinary high water mark. b. Applicability. This applies to jurisdictional determinations for non -tidal waters under Section 404 of the Clean Water Act and under Sections 9 and 10 of the Rivers and Harbors Act of 1899. 2. General Considerations a. Regulation and Policy. Pursuant to regulations and inter -agency agreement,' the U.S. Army Corps of Engineers (Corps) determines, on a case -by case basis, the extent of geographic jurisdiction for the purpose of administering its regulatory program. For purposes of Section 404 of the Clean Water Act (CWA), the lateral limits of jurisdiction over non -tidal water bodies extend to the ordinary high watermark (OHWM), in the absence of adjacent wetlands. When adjacent wetlands are present, CWA jurisdiction extends beyond the OHWM to the limits of the adjacent wetlands. For purposes of Sections 9 and 10 of the Rivers and Harbors Act of 1899, the lateral extent of Federal jurisdiction, which is limited to the traditional navigable waters of the United States, extends to the OHWM, whether or not adjacent wetlands extend landward of the OHWM. Corps regulations define the term "ordinary high water mark" for purposes of the CWA lateral jurisdiction at 33 CFR 328.3(e), which states: "The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." 1. Memorandum of Agreement between the Department of the Army and Environmental Protection Agency Concerning the Determination of the Geographical Jurisdiction of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act, January 19, 1989 This definition is virtually identical to the definition of the term "ordinary high water mark" found at 33 CFR Section 329.11(a)(1), describing the lateral extent of Federal jurisdiction over non -tidal traditional navigable waters of the United States subject to Sections 9 and 10 of the Rivers and Harbors Act of 1899 (RHA). When the definition from 33 CFR Section 329.11(a)(1) was reproduced at 33 CFR 328.3(e), the semi -colons of the former definition were mistakenly changed to commas in the latter definition. Consequently, the definition of "ordinary high water mark" in Part 328 is not as clear in meaning as is the definition of the same term in Part 329, even though the two definitions were to serve the same basic purpose (i.e., establishing the lateral extent of jurisdiction, in the absence of adjacent wetlands).2 Both definitions of the term "ordinary high water mark" begin by discussing physical characteristics that indicate the location of the OHWM on the shore of a water body. Furthermore, both OHWM definitions conclude with the statement the OHWM can be determined using "other appropriate means that consider the characteristics of the surrounding areas".3 Prior to this Regulatory Guidance Letter (RGL), neither the Corps nor the U.S. Environmental Protection Agency has issued any additional clarifying national guidance for use by Corps regulatory program staff in identifying the location of the OHWM for the CWA on a case-by-case basis .4 b. Practice. In making OHWM determinations, Corps districts generally rely on physical evidence to ascertain the lateral limits of jurisdiction, to whatever extent physical evidence can be found and such evidence is deemed reasonably reliable. Physical indicators include the features listed in the definitions at 33 CFR Sections 328.3(e) and 329.11(a)(1) and other appropriate means that consider the characteristics of the surrounding areas. In addition, districts use other methods for estimating the line on the shore established by the fluctuations of water, including, but not limited to, lake and stream gage data, flood predictions, historic records of water flow, and statistical evidence. To the maximum extent practicable, districts generally use more than one physical indicator or other means for determining the OHWM. 3. Guidance. a. In determining the location of the OHWM for non -tidal water bodies under the CWA or the RHA, districts should give priority to evaluating the physical characteristics of the area that are determined to be reliable indicators of the OHWM. Physical evidence to be evaluated includes those items listed in the definitions at 33 CFR Sections 328.3(e) and 329.11(a)(1). Because many types of water bodies occur with varying conditions, including topography, channel morphology and flow dynamics, districts may consider other physical characteristics indicative of the OHWM. 2. CWA jurisdiction extends laterally landward of the OHWM to include all adjacent wetlands wherever such adjacent wetlands are present. This guidance addresses situations where no such adjacent wetlands exist. 3. Changes in the limits of waters of the U.S. are addressed in 33 CFR 328.5. 4. On 3 June 1983 the Corps of Engineers' Chief Counsel distributed legal guidance to all Corps district and division counsel offices regarding certain legal questions relating to the geographic jurisdiction of Section 10 of the Rivers and Harbors Act of 1899, including questions relating to the OHWM. 2 b. The following physical characteristics should be considered when making an OHWM determination, to the extent that they can be identified and are deemed reasonably reliable: Natural line impressed on the bank Shelving Changes in the character of soil Destruction of terrestrial vegetation Presence of litter and debris Wracking Vegetation matted down, bent, or absent Sediment sorting Leaf litter disturbed or washed away Scour Deposition Multiple observed flow events Bed and banks Water staining Change in plant community This list of OHWM characteristics is not exhaustive. Physical characteristics that correspond to the line on the shore established by the fluctuations of water may vary depending on the type of water body and conditions of the area. There are no "required" physical characteristics that must be present to make an OHWM determination. However, if physical evidence alone will be used for the determination, districts should generally try to identify two or more characteristics, unless there is particularly strong evidence of one. c. Where the physical characteristics are inconclusive, misleading, unreliable, or otherwise not evident, districts may determine the OHWM by using other appropriate means that consider the characteristics of the surrounding areas, provided those other means are reliable.5 Such other reliable methods that may be indicative of the OHWM include, but are not limited to, lake and stream gage data, elevation data, spillway height, flood predictions, historic records of water flow, and statistical evidence. d. When making OHWM determinations, districts should be careful to look at characteristics associated with ordinary high water events, which occur on a regular or frequent basis. Evidence resulting from extraordinary events, including major flooding and storm surges, is not indicative of the OHWM. For instance, a litter or wrack line resulting from a 200 -year flood event would in most cases not be considered evidence of an OHWM. e. Districts will document in writing the physical characteristics used to establish the OHWM for CWA and/or RHA jurisdiction. If physical characteristics are inconclusive, misleading, unreliable, or not evident, the Districts' written documentation will include information about the physical characteristics (or lack thereof) and other appropriate means that consider the characteristics of the surrounding areas, which it used to determine the OHWM. f. To complete an approved jurisdictional determination, districts will have complete and accurate documentation that substantiates the Corps decision. At a minimum, decisions will be documented using the standardized jurisdictional determination information sheet established by 5. In some cases, the physical characteristics may be misleading and would not be reliable for determining the OHWM. For example, water levels or flows may be manipulated by human intervention for power generation or water supply. For such cases, districts should consider using other appropriate means to determine the OHWM. 3 Headquarters and provided to the districts on August 13, 2004 (or as further amended by Headquarters). Documentation will allow for a reasonably accurate replication of the determination at a future date. In this regard, documentation will normally include information such as data sheets, site visit memoranda, maps, sketches, and, in some cases, surveys and photographs documenting the OHWM. 4. Duration. This guidance remains in effect unless revised or rescinded. N T. ILEY Major Genera . Army ❑irecteref Civil Works M te CAPLAN & EARNEST ATTORNEYS AT LAW January 21, 2022 Via E-mail Onlv Planning and Environmental Commission Town of Vail Re. Proposed Stream Corridor Protection Ordinance Dear Commissioners: Daniel F. Wolf 93 South Frontage Rd W, Suite 222, Vail, CO 81657 970.476.88651 F: 970.476.0446 3107 Iris Ave, Suite 100 Boulder, CO 80301-1915 303.443.8010 1 F: 303.440.3967 dwolf@celaw.com www.celaw.com My firm represents Grand Hyatt Vail ("Grand Hyatt") located in Cascade Village and on Gore Creek. Please accept this letter as the written comments of Grand Hyatt to the Proposed Stream Corridor Protection Ordinance ("Ordinance") that is being considered by the Planning and Environmental Commission ("PEC") at its meeting on January 24th. As further explained below, Grand Hyatt has serious concerns and objections to the new 25 -foot no -build setback currently proposed in the Ordinance. As you know, Grand Hyatt has extensive frontage along, and portions of its buildings and other improvements are located close to, Gore Creek. Gore Creek is basically Grand Hyatt's front yard. It is important to note that Grand Hyatt, its predecessors and their owners and guests have always highly valued Gore Creek, including its environmental health, and understand that Gore Creek helps make the Town of Vail and Grand Hyatt unique, special and exceptionally beautiful. Towards that end, Grand Hyatt support the ten -foot no mow zone which is by far the most important element of the Ordinance. At least one environmental expert in reviewing the Ordinance has recognized that the ten - foot no mow zone is "the most valuable component" of the Ordinance and will do the most to improve the water quality and habitat conditions of Gore Creek and its tributaries. See Birch Ecology letter of October 18, 2021. Unlike the 10 -foot no mow zone, the 25 -foot no build set back is problematic, unnecessarily expansive, and unworkable. The proposed 25 -foot setback in many places throughout the Town would materially expand the current setback and thus no build zone and cause many existing conforming structures to become non -conforming. This is true for the Grand Hyatt as the proposed 25 -foot setback expands significantly further onto Grand Hyatt property and appears to actually touch and cross portions of the Grand Hyatt building. Attached is the Town's rendering of the proposed setbacks with those locations on Grand Hyatt added. The Ordinance would thereby for the very first time effectively render non- conforming, and prohibit any modifications or expansions of, those portions of Grand Hyatt. It appears that would happen to a significant number of other buildings in Vail. The Grand Hyatt, which was originally constructed in the 1980's, is currently pursing plans to renovate and modestly expand certain guest rooms and suites in those areas that would be effectively prohibited if the 25 -foot setback is adopted. 9 93 South Frontage Rd W, Suite 222, Vail, CO 81657 0 970.476.8865 ® CELAW.COM Planning and Environmental Commission January 21, 2022 Page 12 We also have significant concerns that the Ordinance will be unworkable and unnecessarily create uncertainty and confusion going forward for property owners along Gore Creek like Grand Hyatt. Under the Ordinance as currently drafted it appears that Ordinary High Water Line ("OHWL") and accordingly the setback will change periodically but the Ordinance does not specify when or how often that change will occur, and such change could occur as frequently as every few years. Also the definition of OHWL is unclear, confusing and based on an unidentified data set instead of the established and accepted definition used by the Army Corps of Engineers. These deficiencies will leave property owners along Gore Creek in perpetual limbo as to what they can or cannot do with their property near the 25 -foot setback. We also believe the Ordinance as currently proposed may constitute a compensable regulatory taking of private property including of certain valuable Grand Hyatt property. In sum, we have seen no evidence that the proposed 25 -foot setback will provide a meaningful improvement to the environmental health of Gore Creek over the current scheme, especially in view of the many problems associated with it. Grand Hyatt accordingly requests that the PEC not recommend adoption of the 25 -foot set -back as proposed in the Ordinance and leave the current set -back in place. As mentioned, Grand Hyatt does not oppose the 10 -foot now mow zone. Alternatively, Grand Hyatt requests that the PEC amend the Ordinance to address the concerns described above, including by moving the setback on Grand Hyatt property to no further than the existing setback or at a minimum establish the setback at 20 feet instead of 25 feet as has been proposed by several other stakeholders, and adopting a clearer and more established methodology for determining the OHWL. The Ordinance also should be amended to add a more comprehensive grandfathering provision to allow property owners who have commenced development plans, like Grand Hyatt, to proceed under the existing regulations. Thank you for your consideration. Sincerely, CAPLAN AND EARNEST LLC Daniel F. Wolf DFW/cch cc. Grand Hyatt Vail 4876-5585-8442, v. 3 From: Jonathan Spence To: Grea Roy; Peter Wadden; Shelley Bellm Subject: FW: VHA/JFL/JS: Jonathan - Good morning. Please forward this onto the PEC with respect to today"s hearing on Stream Setbacks. Date: Monday, January 24, 2022 12:40:12 PM Attachments: imaae001.pna Jonathan Spence, AICP Planning Manager Community Development Department k )TOWN OF VA 75 South Frontage Road Vail, CO 81657 Office: 970.479-2321 vailgov.com From: Jim Lamont <JFLamont@Vail.Net> Sent: Monday, January 24, 2022 12:39 PM To: Jonathan Spence <JSpence@vailgov.com> Subject: VHA/JFL/JS: Jonathan - Good morning. Please forward this onto the PEC with respect to today's hearing on Stream Setbacks. Planning and Environment Commission: Stream Setbacks. VHA, favors of remediation of streambanks for the purpose of restoring water quality to sustain aquatic habitat in Gore Creek and its tributaries. VHA does not favor the taking of property rights through inverse condemnation or other methods that would preclude property owners from restoring/replacing residential and other similarly related structures that currently exist within the proposed stream setback areas. Thank you. Jim Lamont/VHA Eagle Summit Wilderness Alliance January 31, 2022 Dear Planning and Environment Commissioners: These comments on the proposed Stream Corridor Protection Ordinance are submitted by the Eagle Summit Wilderness Alliance (ESWA). ESWA is a local, all volunteer non-profit that works in coordination with the USFS to protect, preserve, and maintain the three Wilderness Areas in Eagle and Summit Counties, including the Eagles Nest Wilderness. ESWA supports the proposed Ordinance, but believes it should be strengthened not weakened. Although the Ordinance may not directly affect the Eagles Nest Wilderness, the riparian areas along Gore Creek are an important part of the overall ecosystem of the Vail Valley, including the tributaries of Gore Creek whose headwaters arise in and flow through the Eagles Nest Wilderness. Many species of wildlife travel between the Wilderness, Gore Creek, and its tributaries. Riparian areas are the pumping heart of ecosystems. They provide habitat, water, and food sources for animals for miles around, including those in the Eagles Nest Wilderness. These benefits are in addition to many others noted by your staff — water quality enhancement, flood protection, a healthy fishery, and aesthetic and recreational benefits. At the public hearing on January 24, 2022, some developers urged the Commission to weaken the provisions of the proposed Ordinance. ESWA urges the Commission to reject these proposals. For instance, the average flood on which the Ordinary High Water Mark is based should not be reduced from two years to 1.5 years. Riparian areas were developed by long-term flood patterns, and such flood patterns must be protected as much as possible if a healthy riparian area is to be maintained. Ideally, the average flood period would be as long as possible. If anything, the staff should consider the cost and benefits of an average five-year flood period. It certainly should not be reduced to 1.5 years. Likewise, the Riparian Zone should be increased from 10 feet to 25 or 50 feet. The scientific studies cited by the staff show that such wider riparian zones are much better than narrower ones. Many areas along Gore Creek and its tributaries do not currently have buildings within 25 or 50 feet of the OHWM. These areas should be protected rather than subjected to possible development. Structures already located within a wider Riparian Zone could be grandfathered. Existing riparian areas should be protected from, not doomed to, ultimate development. In short, ESWA supports the proposed Ordinance but urges the Commission to strengthen it rather than weaken it. This may be Vail's last chance to protect the remaining riparian areas within its borders. Thank you for the opportunity to provide these comments, and for your service to our community. Respectfully, /s/ Mike Browning Chair of ESWA 4229A Nugget Lane Vail, CO. 81657 Gore Creek Preservation / Restoration January 24, 2022 We are homeowners with property fronting on Gore Creek at 4014 Bighorn Road in East Vail. Few, if any, have a greater interest than we and our neighboring homeowners in preserving and enhancing the natural health and biodiversity of Gore Creek. We received no official notification of these proceedings beyond articles in the Vail Daily and letters from the Vail Homeowners Association. 2. We have been good stewards of the natural health of our section of Gore Creek having twice personally financed the permitted restoration of the rocky stream bank washed away by the seasonal runoff, and the planting of numerous Aspen trees and other native vegetation with root systems to support the stream bank. 3. Having worked with the United States Forest Service as a volunteer on a project to assess the extent of cementation of the Gore Creek streambed by deposits of traction sand from 1-70, 1 can say with great confidence that the overwhelming threat to the health and welfare of the aquatic life in Gore Creek is traction sand and magnesium chloride. That threat is magnified by the deposits of same on the various bridges crossing Gore Creek from Bridge Road and East from there. A major degradation of Gore Creek was accomplished by the Town of Vail during the reconstruction of the bridge at Bridge Road and the installation of a new kayak launching and wading / picnicking platform. The proposed property use restrictions will have no impact on reducing or eliminating these major threats while interfering with the homeowners' peaceful enjoyment of the use of their properties. The proposed property use restrictions now under consideration constitute a "taking" of private property and a substantial diminution of the values of the restricted properties. 4. We are offended by the standard practice of the Town of Vail in exempting itself from the environmental rules and regulations it imposes on private property owners. Joe McHugh Brenda McHugh 4014 Bighorn Road VU 1 ;1(1 Mauriello Planning Group January 23, 2022 Planning and Environmental Commission (PEC) Town of Vail 75 South Frontage Road Vail, CO 82657 Re: Proposed Changes to Stream Setbacks Dear PEC: I am writing you on behalf of the ownership of the Evergreen Lodge, one of the many properties in the Town of Vail that will be affected by the proposed ordinance that drastically changes the way the setbacks are determined and the uses allowed within proposed setback. The changes are a significant departure from the current stream setback regulations that have been in effect for nearly a half a century in Vail. The goals being sought by the Town staff are lofty and admirable. Everyone wants healthy rivers, riparian areas, and with high water quality for all of the reasons that have been documented. My client, and many others that we talk to and you have heard from, take no issue with the desire to create the 10' native ("no mow zone's from the bank of the creek. There are huge benefits in creating this zone. The remainder of the ordinance is problematic for several reasons which I will describe below: Ordinary High Water Line (OHWL). The Town's proposed ordinance is not really resolving the measurement of of the creeks from the center line to the bank or what the Army Corps of Engineers would define as the Ordinary High Water "Mark." Instead the town is proposing to adopt a set of maps that establishes a new floodplain which the staff is referring to as the OHWL. In many cases that we have reviewed and in the case of Middle Creek, adjacent to the Evergreen Lodge, the floodplain line being established by the Town can be significantly upland from what the Army Corps of Engineers would map as the OHWM. In the case of the Evergreen Lodge, the town's new line can be off by as much as 9'. We think the Town should understand the impacts of this on properties throughout the Town before passing this ordinance. We believe the Town should stick with the methodology that has been adopted by the Army Corps for decades and which has been largely used by surveyors in the region for decades. Below is the definition used by the Army Corps and I have attached their field manual. • For the purposes of Clean VaterActjurisdictzon, the U.S. Army Corps of Engineers defines the Ordinary High Vater Mark as "that line on the shore established by the fluctuations of mater and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas " 33 CFR 328.3(e) u I lCJ Mauriello Planning Group 25 foot setback. The staff is recommending a 25 foot setback from its new floodplain line the OHWL. The setback from the actual stream bank or OHWM could in fact end up being more like 35 feet or more depending on the property in question when you factor in the discrepancy between the OHWL and the OHWM. In the case of Middle Creek, under stream setbacks in the code today, the setbacks create a 60 feet wide corridor of this narrow stream. If you increased that to measuring from the stream bank of the OHWM, you create a corridor that is about 70 feet wide if the average width is about 20 feet wide or 60 feet if the stream is about 10' wide. If you use the Town's floodplain line, that corridor in the case of Middle Creek ends up being about 76 feet which now impacts private property in a significant way. The change will cause many more portions of property to be nonconforming which will affect a properties ability to redevelopment to make building additions. We believe the more reasonable approach would be to change the setback to 20 feet and use the Army Corps well established OHWM. If the Town is hell bent on using its new floodplain model, then the setback should like be reduced to 15 feet to account for discrepancies. Uses within the 20 foot setback. Under the regulations today, the stream setback is treated like any other building setback in the code in terms of the use of the area within the setback. We agree with the restrictions being put in place for the first 10 feet of the riparian zone from the OHWM. Today, there are many uses that one can place within the stream setback as well as a building setback. The Town's proposal accounts for encroachments of patios, decks, and balconies, but is does not account for other uses typically found in setbacks such as swimming pools, hot tubs, sidewalks, retaining walls, walls and fences, and even parking, all of which are allowed today. Here again, the proposed regulation, will result in many more nonconformities on private property. We believe these uses should be included as they are allowed today. Grandfather provision. The ordinance does not provide any relief to property owners who are in the process of developing plans for redevelopment and who have been relying on the Town's current regulation. Even today there is not clear direction about the outcome of the Town's efforts which puts the planning for redevelopment at huge risk. In the case of the Evergreen Lodge, the applicant has been working towards a project for the last 5 years (master plan amendments, land swaps with Vail Health, etc.). In the last year the Evergreen Lodge ownership has spent over $1 million to develop plans that will result in a submittal to the Town within a month. There needs to be a provision added to the ordinance that gives property owners in this situation the ability to submit and be revised under the current regulations. We have proposed language in the attached redline document to address this concern. What is proposed is not a new concept and has been implemented in other jurisdictions related to local land use regulation. In the spirit of trying to strike a happy medium with what staff has proposed, we have proposed some redline changes to the ordinance that we believe will address our concerns (attached). We are concerned about having any requirement that forces the Army Corps to approve a OHWM on the front end knowing that it can take many months to gain such approval. We have proposed language in the regard. Thank you for taking our comments into consideration. While our comments are definitely related to our specific situation, we believe these proposed changes to the ordinance will help many throughout the Town to reduce unnecessary impacts of the proposed regulations. Sincerely, V� Dominic E Mauriello, AICP Principal 2 ORDINANCE NO. SERIES 2022 AN ORDINANCE AMENDING TITLE 12 OF THE VAIL TOWN CODE TO ESTABLISH SETBACKS FROM GORE CREEK AND ITS TRIBUTARIES WHEREAS, the Town's current stream setback, as established by Ordinance No. 19, Series of 1976, requires a minimum setback of 30 feet from the center of an established creek or stream channel and 50 from the centerline of Gore Creek; WHEREAS, the Gore Creek Strategic Plan adopted by the Town Council in 2016 identifies loss of riparian vegetation as one of the main causes of declining water quality in Gore Creek; and WHEREAS, the Town Council wishes to prevent further deterioration of Gore Creek and its named tributaries by enacting a clear, comprehensible, and enforceable set of guidelines for setbacks from Gore Creek and its tributaries. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Section 12-14-17 of the Vail Town Code is hereby repealed in its entirety. Section 2. Section 12-21-2 of the Vail Town Code is hereby amended by the addition of the following new definitions, to appear in alphabetical order: ORDINARY HIGH WATER I INETWOYEAR FLOOD LINE ("0HVVLTYFL"): The average two-year flood line on Gore Creek and its named tributaries, as established by the data set adopted by the Town Council by resolution. Section 3. Chapter 21 of Title 12 of the Vail Town Code is hereby amended by the addition of a new Section 12-21-17, to read as follows: 12-21-17: GORE CREEK SETBACKS: A. Purpose: The purpose of this Section is to protect the public health, safety and welfare by ensuring the resiliency of Gore Creek and its named tributaries and by mitigating hazards associated with the deterioration of Gore Creek and its named tributaries. B. Applicability: This Section shall apply to all property located within twenty4+ve (2520) feet of the QHWLTYFL, in whole or in part; provided that this Section shall not apply to any stream tract already protected by Chapter 14 of Title 5 of this Code. 1 1/18/2022 S:ICOMMUNITY DEVELOPMENTIENVIRONMENTALIGORE CREEK WATER QUALITY IMPROVEMENTSIRESTORE THE GORE! PWICODE CHANGESINOMOWZONEISTREAM SETBACK CODE CHANGESISTREAM SETBACK-0011422.DOCX C. Setbacks: 1. No mowing, landscaping, grading or other disturbance shall be permitted within ten (10) feet of the QHVVLTYFL,, other than: a. Removal of noxious weeds pursuant to Section 5-1-6 of this Code; b. With prior approval of the Vail Fire Department, removal of vegetation for purposes of fire mitigation; c.. With . approval of the Design Review Board, the installation and maintenance of one access path per lot or parcel, of up to four (4) feet in width, consisting of permeable materials including without limitation native soils, sand and gravel, or flagstone set in a permeable base; d. Public roadways, bridges, recreational paths and trails and public parks and open spaces; e. Utility infrastructure within utility easements; f. With pr+er--approval of the Design Review Board, erosion control measures and stream grade -control structures that conform with bank stabilization best management practices; and g. Buildings, structures, fences, walls, patios, walkways, landscaping features, furniture or and similar improvements lawfully existing on the effective date of the ordinance codified in this Section, which improvements shall be subject to Chapter 18 of this Title. 2. No building or structure shall be located within twenty (2520) feet of the QHWLTYFL, other than: a. With pf+e-r-approval of the Design Review Board, architectural projections, decks, balconies, steps and bay windows described in Section 14-10-4 of this Code along with other site improvements including sidewalks, hot tubs, swimming pools, retaining walls, utilities, stormwater facilities, and fences; b. Buildings and structures lawfully existing on the effective date of the ordinance codified in this Section, which improvements shall be subject to Chapter 18 of this Title. D. GeFFeEt+en--ReguestsAlternative Delineation: When Aa property owner may choose to use the Ordinary High Water Mark (OHWM), as defined by the United States Army Corps of Engineers (Army Corps), versus the TYFL as defined herein. A property owner wishing to use the OHWM 2 1/18/2022 S:ICOMMUNITY DEVELOPMENTIENVIRONMENTALIGORE CREEK WATER QUALITY IMPROVEMENTSIRESTORE THE GORE! PWICODE CHANGESINOMOWZONEISTREAM SETBACK CODE CHANGESISTREAM SETBACK-0011422.DOCX may submit an application to the Community Development Department for approval of the OHWM. The application shall include a statement from a qualified consultant indicating that the OHWM was determined based on the guidance and standards established by the Army Corps and a survey stamped by a professional land surveyor indicating the OHWM. Staff may require a letter of approval from the Army Corps of the OHWM when it is unclear from the data submitted if the OHWM is correct. Noting the potential for administrative delays caused by the Army Corps, such letter of approval from the Army Corps may be provided prior to obtaining a building permit and a development application shall be processed without the Army Corps letter of approval. If it is determined by the Community Development Department the application is complete and accurate, it shall issue an approval of the OHWM and the OHWM shall be substituted for the TYFL for the purpose of these regulations. wosh, s to ee;Te^Gtthe leG-at+eofa pFoGeduFes shall apply - 1/18/2022 S:ICOMMUNITY DEVELOPMENTIENVIRONMENTALIGORE CREEK WATER QUALITY IMPROVEMENTSIRESTORE THE GORE! PWICODE CHANGESINOMOWZONEISTREAM SETBACK CODE CHANGESISTREAM SETBACK-0011422.DOCX NINON ANA MINN.! A .I „ 'A AAA RAN 2! Ml ANAMONAWMAN AA.._ 'I'MAN-MMUNIMA AA „ A AAA =. A A - NIMANAN 00 ._� _._�„AA A A A A. ._� a-mAMA 111111 '1100000111"AAA ANil D. Violation and Penalty: It is unlawful for any person to violate any provision of this Section. 2. It is unlawful for any person to re -channel or modify Gore Creek or any of its named tributaries so as to avoid application of this Section. 3. Each separate act in violation of this Section and each and every day or portion thereof during which any separate act in violation of this Section is committed, continued or permitted shall be deemed a separate offense. Violations of this Section shall be punishable as provided in Chapter 4 of Title 1 of this Code. E. Appeals. Provisions of this Section are subiect to to appeal as provided in Section 12-3-3 of this Code. 4.F. Grandfather Provision. This Section shall not apply to any property where the property owner has in good faith spent substantial time and money in the preparation of development plans to develop its property and where the imposition of requirements of this Section conflict with the regulations in effect 4 1/18/2022 S:ICOMMUNITY DEVELOPMENTIENVIRONMENTALIGORE CREEK WATER QUALITY IMPROVEMENTSIRESTORE THE GORE! PWICODE CHANGESINOMOWZONEISTREAM SETBACK CODE CHANGESISTREAM SETBACK-O011422.DOCX at the time of the effective date of the ordinance codified in this Section and adversely affect the development of the owners property. In such a case, the property owner that can show substantial and ongoing expense in the preparation of development plans prior to the adoption of this Section, the property owner shall be afforded one hundred and twenty days (120) days the submit a development application and be accepted by the Town of Vail for review from the effective date of the ordinance codified in this Section and such property and development application shall be reviewed under the regulations existing prior to the adoption of this Section. For the purpose of this Section, "substantial and ongoing expense" shall mean expenses that have been occurring for over four (4) months or more in the preparation and planning for an actual development application to be submitted to the Town and not expenses occurred after the adoption of this Section. Any subsequent related development applications that normally occur after the initial development application shall likewise be exempt from this Section (such as a Design Review application or a subdivision application, that follows the approval of a Planning and Environmental Application). Section 4. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. 5 1/18/2022 S:ICOMMUNITY DEVELOPMENTIENVIRONMENTALIGORE CREEK WATER QUALITY IMPROVEMENTSIRESTORE THE GORE! PWICODE CHANGESINOMOWZONEISTREAM SETBACK CODE CHANGESISTREAM SETBACK-0011422.DOCX Section 5. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town and the inhabitants thereof. Section 6. The amendment of any provision of the Vail Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 7. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this day of , 2022 and a public hearing for second reading of this Ordinance set for the day of 2022, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. Kim Eangmaid,ayor ATTEST: ammy Nagel, I own ClerR READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this day of 12022. Kim Langmaid, Mayor ATTEST: Tammy Nagel, Town Clerk 6 1/18/2022 S:ICOMMUNITY DEVELOPMENTIENVIRONMENTALIGORE CREEK WATER QUALITY IMPROVEMENTSIRESTORE THE GORE! PWICODE CHANGESINOMOWZONEISTREAM SETBACK CODE CHANGESISTREAM SETBACK-0011422.DOCX REGULATORY GUIDANCE US Army Corps LETTER of Engineers© No. 05-05 Date: 7 December 2005 SUBJECT: Ordinary High Water Mark Identification 1. Purpose and Applicability a. Purpose. To provide guidance for identifying the ordinary high water mark. b. Applicability. This applies to jurisdictional determinations for non -tidal waters under Section 404 of the Clean Water Act and under Sections 9 and 10 of the Rivers and Harbors Act of 1899. 2. General Considerations a. Regulation and Policy. Pursuant to regulations and inter -agency agreement,' the U.S. Army Corps of Engineers (Corps) determines, on a case -by case basis, the extent of geographic jurisdiction for the purpose of administering its regulatory program. For purposes of Section 404 of the Clean Water Act (CWA), the lateral limits of jurisdiction over non -tidal water bodies extend to the ordinary high watermark (OHWM), in the absence of adjacent wetlands. When adjacent wetlands are present, CWA jurisdiction extends beyond the OHWM to the limits of the adjacent wetlands. For purposes of Sections 9 and 10 of the Rivers and Harbors Act of 1899, the lateral extent of Federal jurisdiction, which is limited to the traditional navigable waters of the United States, extends to the OHWM, whether or not adjacent wetlands extend landward of the OHWM. Corps regulations define the term "ordinary high water mark" for purposes of the CWA lateral jurisdiction at 33 CFR 328.3(e), which states: "The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." 1. Memorandum of Agreement between the Department of the Army and Environmental Protection Agency Concerning the Determination of the Geographical Jurisdiction of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act, January 19, 1989 This definition is virtually identical to the definition of the term "ordinary high water mark" found at 33 CFR Section 329.11(a)(1), describing the lateral extent of Federal jurisdiction over non -tidal traditional navigable waters of the United States subject to Sections 9 and 10 of the Rivers and Harbors Act of 1899 (RHA). When the definition from 33 CFR Section 329.11(a)(1) was reproduced at 33 CFR 328.3(e), the semi -colons of the former definition were mistakenly changed to commas in the latter definition. Consequently, the definition of "ordinary high water mark" in Part 328 is not as clear in meaning as is the definition of the same term in Part 329, even though the two definitions were to serve the same basic purpose (i.e., establishing the lateral extent of jurisdiction, in the absence of adjacent wetlands).2 Both definitions of the term "ordinary high water mark" begin by discussing physical characteristics that indicate the location of the OHWM on the shore of a water body. Furthermore, both OHWM definitions conclude with the statement the OHWM can be determined using "other appropriate means that consider the characteristics of the surrounding areas".3 Prior to this Regulatory Guidance Letter (RGL), neither the Corps nor the U.S. Environmental Protection Agency has issued any additional clarifying national guidance for use by Corps regulatory program staff in identifying the location of the OHWM for the CWA on a case-by-case basis .4 b. Practice. In making OHWM determinations, Corps districts generally rely on physical evidence to ascertain the lateral limits of jurisdiction, to whatever extent physical evidence can be found and such evidence is deemed reasonably reliable. Physical indicators include the features listed in the definitions at 33 CFR Sections 328.3(e) and 329.11(a)(1) and other appropriate means that consider the characteristics of the surrounding areas. In addition, districts use other methods for estimating the line on the shore established by the fluctuations of water, including, but not limited to, lake and stream gage data, flood predictions, historic records of water flow, and statistical evidence. To the maximum extent practicable, districts generally use more than one physical indicator or other means for determining the OHWM. 3. Guidance. a. In determining the location of the OHWM for non -tidal water bodies under the CWA or the RHA, districts should give priority to evaluating the physical characteristics of the area that are determined to be reliable indicators of the OHWM. Physical evidence to be evaluated includes those items listed in the definitions at 33 CFR Sections 328.3(e) and 329.11(a)(1). Because many types of water bodies occur with varying conditions, including topography, channel morphology and flow dynamics, districts may consider other physical characteristics indicative of the OHWM. 2. CWA jurisdiction extends laterally landward of the OHWM to include all adjacent wetlands wherever such adjacent wetlands are present. This guidance addresses situations where no such adjacent wetlands exist. 3. Changes in the limits of waters of the U.S. are addressed in 33 CFR 328.5. 4. On 3 June 1983 the Corps of Engineers' Chief Counsel distributed legal guidance to all Corps district and division counsel offices regarding certain legal questions relating to the geographic jurisdiction of Section 10 of the Rivers and Harbors Act of 1899, including questions relating to the OHWM. 2 b. The following physical characteristics should be considered when making an OHWM determination, to the extent that they can be identified and are deemed reasonably reliable: Natural line impressed on the bank Shelving Changes in the character of soil Destruction of terrestrial vegetation Presence of litter and debris Wracking Vegetation matted down, bent, or absent Sediment sorting Leaf litter disturbed or washed away Scour Deposition Multiple observed flow events Bed and banks Water staining Change in plant community This list of OHWM characteristics is not exhaustive. Physical characteristics that correspond to the line on the shore established by the fluctuations of water may vary depending on the type of water body and conditions of the area. There are no "required" physical characteristics that must be present to make an OHWM determination. However, if physical evidence alone will be used for the determination, districts should generally try to identify two or more characteristics, unless there is particularly strong evidence of one. c. Where the physical characteristics are inconclusive, misleading, unreliable, or otherwise not evident, districts may determine the OHWM by using other appropriate means that consider the characteristics of the surrounding areas, provided those other means are reliable.5 Such other reliable methods that may be indicative of the OHWM include, but are not limited to, lake and stream gage data, elevation data, spillway height, flood predictions, historic records of water flow, and statistical evidence. d. When making OHWM determinations, districts should be careful to look at characteristics associated with ordinary high water events, which occur on a regular or frequent basis. Evidence resulting from extraordinary events, including major flooding and storm surges, is not indicative of the OHWM. For instance, a litter or wrack line resulting from a 200 -year flood event would in most cases not be considered evidence of an OHWM. e. Districts will document in writing the physical characteristics used to establish the OHWM for CWA and/or RHA jurisdiction. If physical characteristics are inconclusive, misleading, unreliable, or not evident, the Districts' written documentation will include information about the physical characteristics (or lack thereof) and other appropriate means that consider the characteristics of the surrounding areas, which it used to determine the OHWM. f. To complete an approved jurisdictional determination, districts will have complete and accurate documentation that substantiates the Corps decision. At a minimum, decisions will be documented using the standardized jurisdictional determination information sheet established by 5. In some cases, the physical characteristics may be misleading and would not be reliable for determining the OHWM. For example, water levels or flows may be manipulated by human intervention for power generation or water supply. For such cases, districts should consider using other appropriate means to determine the OHWM. 3 Headquarters and provided to the districts on August 13, 2004 (or as further amended by Headquarters). Documentation will allow for a reasonably accurate replication of the determination at a future date. In this regard, documentation will normally include information such as data sheets, site visit memoranda, maps, sketches, and, in some cases, surveys and photographs documenting the OHWM. 4. Duration. This guidance remains in effect unless revised or rescinded. N T. ILEY Major Genera . Army ❑irecteref Civil Works M Brownstein February 3, 2022 VIA EMAIL: commdev@vailgov.com Town of Vail Planning and Environmental Commission 75 S. Frontage Road West Vail, Colorado 81657 Brownstein Hyatt Farber Schreck, LLP 303.223.1100 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202 Wayne F. Forman Shareholder 303.223.1120 tel WForman@bhfs.com RE: One Willow Bridge Road Homeowners Association: Comments to Proposed Change to Waterbody Setbacks, PEC21-0043 Dear Commissioners: I am writing once again on behalf of One Willow Bridge Road HOA in connection with the proposal pending before you to increase setbacks from Gore Creek, this time to provide our comments on the proposal. We appreciate your time and thoughtful consideration of the comments you have received thus far and request you take these additional comments into account in your deliberations over increasing the setbacks from Gore Creek. 1. Clarify Setback to Exclude Man -Made Drainage Discharge. The mapping of the 25 -foot setback within the One Willow Bridge Road property (attached) shows an extensive encroachment of the proposed setback on the southeastern portion of the building. We believe that this reflects not a setback from Gore Creek, but from a side discharge of water entering Gore Creek at that location. That discharge, however, is not part of any natural tributary or water feature. Rather, it comes from a pipe that discharges seepage water from the parking garage of the Solaris condominium building. In speaking with Pete Wadden, he advised that an on -the -ground survey of the elevations of the new modelled setback line through the site would likely ignore this drain pipe discharge, but that if this discharge were included within the modelled setback, the fact that it was coming from a parking garage, as opposed to a natural tributary, would likely be strong grounds to have the setback corrected to ignore this man-made discharge in an appeal proceeding. We appreciate Pete's advice on this issue and it appears sound. Nevertheless, we request that the Town include in the proposed ordinance an acknowledgement that the enlarged setbacks apply www.bhfs.com Town of Vail PEC February 3, 2022 Page 2 only to Gore Creek and its natural tributaries or other natural water features and not to artificial discharges of drainage or seepage water from buildings or structures. This clarification, which seems consistent with the intent of the proposal, would provide us with additional comfort that this anomalous setback would be corrected if an appeal of the setback line through the One Willow Bridge site became necessary. 2. Extend Reconstruction Period For Nonconforming Structures. As the Commission is aware, the proposed 25 -foot setback from the OWHL will convert a significant number of fully -compliant buildings in the Vail Central Core to "nonconforming" status under the Town Code, including One Willow Bridge Road. Town Code §12-18-9 provides that if a nonconforming structure is destroyed by fire or other calamity, the structure may be restored, "provided the restoration is commenced within one year and diligently pursued to completion." We understand that the phrase "restoration is commenced within one year" has been interpreted by the Town to mean that the building owner must have submitted a building permit to restore a structure within the one-year timeframe. Even with that interpretation, a one-year time period is too short, given all that an owner must go through to get its site ready for reconstruction, including dealing with insurance companies, clearing debris, surveying the site, and having construction plans prepared, to name a few. We suggest that, in light of the large number of nonconforming structures that will result from the enlargement of the Gore Creek setbacks, the Town make a commensurate amendment to §12-18-9 to extend to two years the time within which reconstruction of a nonconforming structure must be commenced and to memorialize in the Code that commencement of reconstruction means the filing of a building permit with the Town. Thank you for considering these comments. If you have any questions regarding the foregoing, please do not hesitate to contact me. Sincerely, jD0jV,.e, J� jrt*� Wayne F. Forman Cc: Oliver Nunnenmacher, Manager, One Willow Bridge Road HOA (oliver@onewillowbridgeroad.com) Stephen A. Best, Esq., President, One Willow Bridge Road HOA (SBest@brown rudnick.com) Greg Roy, Senior Planner, Town of Vail (grog@vailgov.com) Peter Wadden <PWadden@vailgov.com> 23706732.1 PLANNING AND ENVIRONMENTAL COMMISSION September 27, 2021, 1:00 PM Town Council Chambers 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom. us/webinar/register/W N_QJ ybkNzgQ2eMGMYxH6FEOg 1.2. Attendance Present: Brian Gillette, Rollie Kjesbo, Ludwig Kurz, Karen Perez, Reid Phillips, Henry Pratt, Pete Seibert Absent: None Main Agenda 2.1. A request for the review of a variance from Section 14-10-4: 20 min. Architectural Projections, Decks, Balconies, Steps, Bay Windows, Etc., Vail Town Code in accordance with the provisions of Section 12-17, Variances, Vail Town Code, to allow a balcony roof and associated support to encroach into the required setback, located at 2705 Davos Trail, Lot 14, Block B, Vail Ridge Subdivision, and setting forth details in regard thereto. (PEC21- 0041) Applicant: Robbie Baxter & Gibson Watson, represented by VMDA Architects Planner: Jonathan Spence Planner Spence gives an introduction to the application. He goes over the extent of the variance request for the setbacks. The applicant is requesting that a roof extend past the allowed 4 -foot encroachment. Chris Jergens of VMDA, representing the applicant, goes over their request. He lists the criteria for approval of a variance required by Town Code and how this application meets them. Kjesbo asks what the original setbacks were when the house was built in Eagle County. Spence guesses 20' on all sides. Pratt asks if similar variances have been granted. Spence does not recall any similar variances being granted. Phillips believes that the house was built as close to the setbacks as possible. J ergens believes they did so because of the topography. Perez says the slope does not have a rational connection to a deck covering. The request for a variance over a nonconforming deck is a special treatment. Gillette asks about the nonconformity. Spence responds the deck is too close to the property line. Perez does not believe a partially covered deck is a hardship. PEC must follow criteria strictly and this does not meet the criteria. Jergens believes they are meeting it. Public comment is opened. No public comment. Rollie Kjesbo moved to deny. Karen Perez seconded the motion and it passed (7-0). 2.2. A request for recommendation to the Vail Town Council, pursuant to Section 90 min. 12-3-7, Amendment, Vail Town Code, for the adoption of the West Vail Master Plan, and setting forth details in regard thereto. (PEC21-0036) Applicant: Town of Vail, represented by SE Group Planner: Matt Gennett Community Development Director, Matt Gennett, goes over the request from the PEC at the end of the previous meeting. He goes over the conditions of approval suggested by staff as a result of the PEC's discussion at the last meeting that were included in the packet. Ellie Wachtel adds that Fehr and Peers is online if there are any transportation related questions. Kurz appreciates staff's efforts and thanks them for the hard work being put in. Gillette asks if Gennett sees this going to Council and being kicked back to PEC to solve these conditions. Gennett responds that no, he believes that at the Council meeting Council would direct staff to make these revisions and the Council's revisions if any, and then come back to Town Council with those amendments for final adoption. Gillette would like to see more description in the items about the deed restrictions and zoning discussion. The written description is a little confusing based on the discussion. "There can be no increase in density without some sort of deed restriction or fee in lieu". 100% does not need to be deed restricted, but any increase needs to result in some sort of deed restriction or fee in lieu. Gennett says that in the rezoning process the language will be done in a public process at that time. Gillette wants to ensure that as properties redevelop, they need to have some housing aspect to it. The clarity needs to be added in the condition's language. Phillips asks for clarity. Are we going to allow the same number of units that exist over density today or exist over zoning today? Which one will trigger the housing requirement? Gillette believes an increase in density above what is allowed today would require the housing component. Phillips says that if someone is tearing down a six plex then anything over those two allowed units would require some kind of housing? Gillette says, some percentage over that number two, yes. We aren't imposing any hardship for owners; they had the responsibility to know the zoning and that they were overbuilt. Wachtel adds that an extra EHU unit could be built, but we haven't seen that happening. Gillette recognizes that and a percentage needs to go towards housing. The parking lots on Chamonix are emptier these days and we're already losing housing. Pratt has a comment on eliminating GRFA. If you build to setbacks and height with no GRFA you get boxes. That does not match the character of the neighborhood. We should look at what Lionshead did and give a 250% increase of GRFA, but eliminating it just gets boxes. Gennett asks whether the existing or proposed dimensional zoning standards would be sufficient or not to control the size of structures. Pratt agrees and says some increase, but not a complete removal. Gillette thinks we should eliminate the Geneva exemption. This area should be treated the same as the other areas in West Vail. Gennett asks about and Gillette confirms the affected conditions he is referring to. Gillette has concerns that the dashed lines were not quite right on the corner of Chamonix and Arosa. The line as drawn needs to be pulled back in to not include lots that front on other roads. Phillips says that is reflected on page 71. Specifics over the corner of Circle Drive and the map are discussed. Gillette thinks Circle Drive is fine with the Primary/Secondary zoning and needs to be left out. Wachtel asks if there are other streets that have a similar issue. Gillette says Circle Drive and Arosa. The Aerial map is brought up for reference of the areas in question. 2289 Chamonix Ln should be the west end of the upper Chamonix. 2449 Chamonix should not be in the east end of lower Chamonix, as well as the duplexes on the east side of Chamonixjust past Chamonix chalets. The map is gone through for the corners of the area to ensure the appropriate properties are being included. Slight adjustments are being proposed. Looking on the south side of 170, the commissioners review the included lots. On the west side of this lower area, the line is drawn to the Town boundary. Gillette is concerned that including properties in this map will lead to inappropriate zoning again. Phillips whether the future re -zonings will come back to them at the PEC. That they'll have another chance to look at this and make suggestions. This is a conceptual overview plan, not individual zoning, not lot by lot, correct? Gennett confirms Phillips says we are here to provide some flexibility moving forward Gennett says there is nothing regulatory about this document. When we get to the implementation level, the rezoning process will be much more exact. At this level it is more of a guideline and an expression of the intent. The real detail and fine tuning come in when we go to modify zoning. Planner Spence adds that when staff begins to look at rezoning options, we look at more than existing buildings, including location, size of lots, topography, character etc.... We'll be looking more at the intrinsic qualities of the property for any rezoning. More discussion happens on the process of master plan versus zoning and their relation. Pratt does not see any sustainability or environmental recommendation. He would like to see solar or other energy systems be encouraged in new buildings through this plan. He does not like condition #2, and that it is very vague. Would like to see more specificity with more measured heights and not a build to line. Dominic Mauriello working on behalf of the VLHA. The VLHA submitted a comment to the PEC, and it covers the chapters in the masterplan. He believes it would be a good idea to review. He feels the PEC should do the heavy lifting and it should all be set by the time it gets to Town Council. He would like to see a redlined version rather than going to Town Council with a set of conditions. He gives examples of how he thinks intent could be lost in the process. The plan is wonderful, and they've done a really good job. It's 100 times better than what we have now. There are really good alternatives included in there. He would encourage the PEC in the next step of rezoning to get that moving so we can see redevelopment. Pratt agrees. Galen Aasland believes that words matter. He believes that one of the purposes of this is to put in an appropriate zoning. He would like to see the masterplan require the new multi -family zone district that is added not be able to do an SDD. Gillette feels uncomfortable with approving this with the conditions. He would like to see the masterplan redlined. Perez agrees with Gillette. A redlined version would be clearer as to what the PEC's recommendations are. Let's be clear, lets add language and be specific. Gennett asks if the PEC would like a redlined version? At least four commissioners confirm. Discussion around the dates, times, corrections, and revisions is had. Comments will be color coded based on the recommending body. Gennett requests a tabling to the ne)d meeting on the 11th of October. Karen Perez moved to table to October 11, 2021. Reid Phillips seconded the motion and it passed (7-0). 2.3. A request for a recommendation to the Vail Town Council for a Prescribed 60 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Planner Roy introduces project and begins presentation. He summarizes current waterbody setback requirements as well the proposed language for the new amendment. Gillette asks about the recent release into Gore Creek. Planner Wadden responds there were 120 dead fish. The e)dent of the problem went to the International Bridge. There was also an absence of algae and other aquatic life in the river. State agencies are also involved with investigating this incident. Gillette asks how big a deal 120 dead fish are? Wadden responds that it isn't a huge amount if he could determine that that was the full e)dent of the impacts. They were not able to get water samples until 24 hours after the incident. 2.08 million gallons of potable water was discharged, with an unknown quantity of other water. There were no concerns to drinking water supply. Phillips has received a lot of concerns from the community. Can the PEC request to get a status report from Pete Wadden in two weeks? He would like to invite Eagle River Water and Sanitation, and Colorado state agencies. He also wants to reach out to Vail Resorts to see if they would come to the status report. Community members saw dead fish at the International Bridge. A news report said not to go in the river at the moment with copper sulfate levels. He says we need to know the damage and the responsible parties, as well as the future plan for river restoration. He wants to make sure that this continues to be checked moving forward. Wadden responds he is happy to address these concerns Kurz agrees with Phillips. Board is unanimous in requesting an update. Perez asks if the joint commission has met on this Planner Wadden continues through presentation. He touches on the importance of riparian restoration and the Town's efforts in recent years. He references the Gore Creek Action plan for strategies to engage private property owners. He outlines the objectives of the Riparian Corridor and the proposed new regulations. He explains the definition of the Ordinary High - Water Mark. Gillette asks how many non -conformities we are creating? Wadden says under the current setbacks there are 111 non -conforming structures. The new recommendation would lead to 142. Of those, 92 are non -conforming under current regulations. Gillette asks how many structures are on the creek. Wadden responds there are close to 400. Gillette asks if we create a non -conforming structure, what does that do to development rights? Roy responds that they would have the same property rights, it would just affect where they could build. Perez says that making the structure non -conforming does affect property rights. Gillette asks about property on Matterhorn Circle. What if they would have to rebuild their house? Roy says they would have to meet the standards under the new code Kjesbo says they got variances to build there originally Perez says non -conforming status affects insurance for HOAs and financing. She has a problem making so many buildings non -conforming. She says we have to balance the proposal with property rights and impacts on the community. She cites a letter of concern from a local HOA, and says she wants to get this right. Wadden says the HOA in question is currently non -conforming. Perez wants to decrease rather than increase the amount of non -conforming structures. Wadden says other setback distances are an option. 25' was chosen because it most closely approximated existing setbacks. Gillette asks if you can shorten the setback but increase the riparian buffer. Would this make fewer houses non -conforming? Wadden says the issue is that defensible space would become a problem. People building right to the setback would conflict with fire department recommendations for defensible space. Roy says in regard to design standards it gives property owners some space for landscaping choices before reaching the no -mow zone. 25 feet is the balance between town code, fire department, design standards, and the fewest non -conformities. Gillette asks if property owners been notified? Wadden says not all of them. Gillette says we need to reach out to all of them and get feedback. Perez says it will help to determine the harmony of the various criteria. Wadden recommends taking a look at individual properties on the maps provided. Gillette asks how accurate are they? Wadden says they're a good approximation. Pratt asks how many non -conforming structures are within the 20' setback? Wadden says they have the lines on the map but not the exact numbers. Pratt says he is a property owner on the creek and has built his house to existing setback requirements. It would be good to see the number of non- conforming structures at 20 -foot setbacks. Phillips says the 8th fairway on the golf course is a large encroachment. He asks if there has been a conversation with golf course management if they can restructure that area? Wadden says there have been conversations but it's a debate between playability and resource protection. They are trying to find the balance there. Gillette asks who is present from the fire department? He asks Paul Cada to speak on defensible space. Paul Cada the Wildfire Program Administrator says they have been working with the applicants for a while. What is presented today is the compromise between the interests. He says there are allowances for the defensible space. He says when things are wet around the creek the risk is low and cites examples from California fires. He claims the fire department can support what is in the presented language. Wadden says the 20 -foot setback establishes 27.1 unbuildable acres. The number of non -conforming structures increasing between existing and proposed regulations may not be statistically significant. Gillette would like to have a better understanding of the effects on a homeowner of becoming non -conforming and how that impacts financing and other factors. Roy says we can look into that, as well as weigh that with the health of Gore Creek. Gillette stresses the importance to make informed decisions Planner Spence says we have not seen insurance decisions related to zoning non -conformities. Wadden wants to provide funds and resources to property owners undergoing changes. He reiterates staff recommendations relating to the proposed ordinance. Perez would like more information, as well as notifying the public and getting public feedback. Gillette agrees. Wadden says they will increase these efforts. Kurz asks about public notification being marginally effective? Wadden outlines public outreach on Project Rewild. He says at the time, the town council was concerned about providing funds for individual landscaping projects. Perez says she is on the board of an association that would be affected. She wants to notify associations not just property owners that would be impacted. Kurz talks about balancing health of river with individual homeowners. He says we have a moral if not legal obligation to make sure river is as healthy as possible. We also have to consider the existing property ownership. He says it's a tricky balance, and we need to address the points that have been made. Gillette says the town should target problem properties rather than issue blanket proclamations. Wadden says there is a list of stream areas that are the most degraded. The process needs to include an equitable approach to homeowners. Pratt asks about flags concerning pesticides in use and the progress on this issue. Wadden says Under Colorado law the buck stops with state. Localities cannot pass more stringent regulations. Town attorneys have advised against action. The Colorado Department of Agriculture did testing for pesticides and herbicides in the creek and the town is awaiting the results. Gillette asks if there are better products for lawncare. Wadden says root treatment is better than sprays. Regarding lawncare, it's more about lawncare than keeping out pests. The town utilizes organic herbicides and fertilizers. Gillete asks if organic practices are better for the creek? Wadden clarifies organic fertilizers are better but not better than no fertilizer Gillette asks if we have done outreach to local landscapers? Wadden says from 2015-2019 a local workshop has gathered around 40 landscapers regarding the best practices in Creekside landscaping. In the last two years, there have been zoom presentations along similar lines. Gillette says there could be more outreach every spring. Wadden says he has produced three videos for the website and landscapers about alternatives to pesticides in landscaping. Gillette wants to add in some bullet points for people who won't watch the videos. Perez asks if you need two weeks. Wadden says I think we can do this in two weeks. Spence says another cycle would be required for public comment and outreach. Kurz asks for public input Dominic Mauriello represents Evergreen Lodge. He says he has worked for years with the existing setback of 30'. Having that changed now would have a large impact. He says the maps shown today are not going to be surveying accurate. He applauds the motives and says we're all in favor of riparian buffer. He cites other studies regarding the cleansing effects of riparian buffers and supports the 10' riparian buffer. He says changing the stream setback is different. Nothing suggests 25' is better than 20'. He is glad the PEC is considering the impacts on non- conforming structures. He says it is inaccurate that the centerline moves around a lot. It would have been better if they had done the high water mark from the beginning, but the town has already been built with the old regulations. He says this will open a can of worms of non -conforming buildings. These buildings do not have a lot of flexibilities with variances. He says the board can't depend on relief mechanism of variances for new non- conforming buildings. He says the code language needs work. What about stormwater management activities that may be beneficial to do in the 10' buffer? Gillette asks why that would be precluded? Mauriello says it is precluded in the proposal. He wants to think about how non -conforming structures are created and work out the inconsistencies. He says the town can be clearer about how you measure the centerline. I n his analysis, the 20' setback much more approximates the existing setback today. He says the town could use existing 30' or proposed 20', whichever is more restrictive. He also says the definition of high water mark needs some work and the FEMA floodplain information is different from the streambank. He suggests the town work with some of the surveyors to find what they typically use. He suggests incorporating more input from the town attorney and have them look at it before recommendation to town council. He is happy to help with some of the language if that is needed and says he can come back with examples. Gillette asks for an email summarizing these comments. Mauriello says there are other concerns from community members that weren't able to be here today. Gillette asks if Wadden can meet with a surveyor regarding questions of the high water mark. Wadden confirms. Kurz asks if there is additional public comment? John Rediker wants a better understanding of the language that references two year flood lines, especially regarding a definition and calculation method. He wonders if there are other studies out there, so decisions are based upon science and not anecdotes. He asks where is the evidence that insurance rates will go up for non -conforming structures? Siri Roman is the director of operations for Eagle River Water and Sanitation. She says the decision is hard for the community, but Gore Creek need initiatives like this to get off the 303(d) list of impaired waterways. Vail is a model town with its creek restoration programs. She is also a Vail resident with two kids, who have spent a lot of time in Gore Creek. Her kids would like more wildlife and less tall buildings in town. She asks the board to consider the hard decisions for the future of Vail. Holly Loff is the Executive Director for the Eagle River Watershed Council speaking in support of the ordinance. She has worked successfully with the town on past restoration projects. The riparian areas are critical to water quality and stream health. She says Vail is a leader in the valley and this initiative is the natural next step. She also says the stream health and water quality is worth the effort of addressing these questions. Gillette asks if there are any studies on 20' versus 25' setbacks. Loff says the Eagle River watershed plan didn't have specific numbers for setbacks. The correct number varies by geology and hydrology. She would be happy to look into that more With Wadden. Gillette asks if hydrologists have been involved? Wadden says that they have been involved in the process. He can look at the difference between 20' and 25' buffers. Gillette wants to see difference between 10' and 15' riparian buffers and studies to that effect. Wadden says they will have more of that information next time. Bellm says Oct. 25 meeting is the next meeting date to allow for public notification. Motion to table Karen Perez moved to table to October 25, 2021. Brian Gillette seconded the motion and it passed (7-0). 2.4. A request for the review of an extension to a Conditional Use Permit, 20 min. pursuant to Section 12-9C-3, Conditional Uses; Public buildings and grounds, Vail Town Code, to allow the continued use of the yurt at the Vail Nature Center for a period of three (3) years, located at 841 Vail Valley Drive/Unplatted (Ford Park Nature Center) and setting forth details in regard thereto. (PEC21-0039) Applicant: Town of Vail, represented by Kristen Bertuglia Planner: Jonathan Spence 1. Upon the completion of the use of the yurt, or three (3) years from date of this approval, whichever happens earlier, the Applicant shall remove the yurt and foundation and shall revegetate all disturbed soils with native vegetation. Planner Spence presents history of the application and outlines request. Gillette asks about the 3 year timeframe? Spence says we need to hold the town equally responsible as private property owners. Kurz asks if there are any other board questions? Spence clarifies to ask for public comment. Rollie Kjesbo moved to approve with conditions. Brian Gillette seconded the motion and it passed (7-0). 2.5. A request for the review of a Variance from Section 12-21-12, Restrictions 2 min. in Specific Zones on Excessive Slopes, Vail Town Code, to allow for a variance from the maximum percent of lot covered by driveways and surface parking, in accordance with the provision of Section 12-17, Variances, Vail Town Code, located at 816/826 Forest Road / Lots 14/15, Block 1, Vail Village Filing No. 6 and setting forth details in regard thereto. (PEC21- 0045) The applicant has requested this item be tabled to a future date where it will be heard concurrently with a Minor Subdivision and Rezoning application. Applicant: Mexamer Forest Road LLC, represented by KH Webb Architects Planner: Jonathan Spence Spence asks for uncertain table date. He will combine the application with other relevant applications. Brian Gillette moved to table. Rollie Kjesbo seconded the motion and it passed (7-0). 3. Approval of Minutes 3.1. September 13, 2021 PEC Results Karen Perez moved to approve. Brian Gillette seconded the motion and it passed (7-0). 4. 1 nformational Update 4.1. Update on Wildlife Fencing in the 1-70 Corridor 10 min. Applicant: Planner: Pete Wadden Spence provides update on wildlife fencing project. Phillips asks if there is encroachment on private property? Spence says it is within the CDOT right of way. 5. Adjournment Karen Perez moved to adjourn. Brian Gillette seconded the motion and it passed (7-0). The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department PLANNING AND ENVIRONMENTAL COMMISSION October 25, 2021, 1:00 PM Town Council Chambers and Virtual on Zoom 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom. us/webinar/register/W N_QJ ybkNzgQ2eMGMYxH6FEOg 1.2. Attendance Present: Ludwig Kurz, Brian Gillette, Henry Pratt, Rollie Kjesbo, Karen Perez, Reid Phillips, Pete Seibert Absent: None Main Agenda 2.1. A request for the review of an amendment to a Conditional Use Permit, 20 min. pursuant to Section 12-9C-3, Conditional Uses, Vail Town Code, to amend the approved conditional use permit to reflect an increase in student enrollment, located at 3000 Booth Falls Road/Lot 1, Vail Mountain School, and setting forth details in regard thereto. (PEC20-0026) Applicant: Vail Mountain School Planner: Jonathan Spence Kurz says Commissioner Pratt will join after the first item on the agenda Planning Manager Jonathan Spence provides the history of the application and introduces the applicants. Dominic Mauriello represents Vail Mountain School (VMS). He references his memo to the board and asks for a tabling to next summer. He references various ongoing and future studies. He says it doesn't make sense to do engineering on roadway improvements until studies are complete. Mauriello quickly goes over the items in the memo. The applicants are also looking at other issues on campus like stacking, and ways to address this. The one lane exit on the frontage road could be changed. They are also studying the employee housing property and ingress and egress in that lot. He is asking for a tabling until all issues can be addressed. Kurz is disappointed that we're so late in resolving a problem that has been there since 2000. Now we're being asked to kick the can down the road another six months. He would be more upset if Tom Kassmel didn't think that extra time was necessary. He hopes school and staff make sure that we're ahead of the game for future reference. Other than that, he is in favor of granting the timeframe. Perez is disappointed, she references the timeline from the original presentation in April. She is discouraged that they had exceeded the limit in 2014 and nothing was done at that time. She is frustrated at the delays; this is not a new issue and the school is well aware of it. If this didn't have to do with education, she would want to pull the use permit. VMS thinks the conditions of its permit don't affect it. In deference to Tom Kassmel, she understands the extension, but would not want to extend it longer — it is unacceptable Phillips asks when VMS became aware they were non -conforming. Mauriello does not know the exact date, says there is new management at the school. Perez reiterates the 2014 point. Phillips asks for clarification. Spence talks about past applications regarding the parking and greenhouse. Gillette asks when people knew there was an issue with the frontage road? Spence is not certain. Mauriello says everyone was not aware it would need a CDOTAccess Permit. The school side did not know it meant millions of dollars. The school wants to do the right thing and are paying attention to this issue. They are trying to address these things correctly. Perez asks what was done in the last 6 months other than forming a committee? Mauriello says they have hired a team of consultants and experts, they talked to van services, are looking at studies, and put together an application for a school zone permit submitted in August. They are coordinating with the town for school zone study. They are taking the issue seriously and trying to do thing immediately and solve long term issues Phillips asks about what specifically was done in 2014? Perez says they knew they were over the condition in 2014. Kurz summarizes the board's concerns. He says we should go with the extension but there is a clear message to the process needed. Kjesbo agrees and says they will have to modify their plans for what CDOT says anyway. He doesn't see much choice in the delay. Kurz references a different use for the existing berm. He feels strongly that the berm is not sacred. Mauriello says the berm is in the right of way and they have a permit from CDOT but he takes the point. Amended Motion for continuation with a meeting in July of 2022 Board discusses the proper date for the next meeting. Rollie Kjesbo moved to continue to July 2022. Brian Gillette seconded the motion and it passed (6-0). Abstain: (1) Pratt 2.2. A request for a recommendation to the Vail Town Council for a Prescribed 15 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-15-3 Definition, Calculation, and Exclusions, Vail Town Code, to add an exemption to allow vaults for car lift systems to be excluded from the GRFA calculation and setting forth details in regard thereto. (PEC21-0046) The applicant requests this item be tabled to November 8, 2021. Applicant: KH Webb Architects & Mauriello Planning Group Planner: Greg Roy Rollie Kjesbo moved to table to November 8, 2021. Brian Gillette seconded the motion and it passed (7-0). 2.3. A request for the review of an Exemption Plat, pursuant to Section 13-12-3, 20 min. Plat Procedure and Criteria for Review, Vail Town Code, to allow for an adjustment to the location of the platted building envelope for Lot 14, First Amendment to Spraddle Creek Estates, located at 1326 Spraddle Creek Road, and setting forth details in regard thereto. (PEC21-0049) Applicant: SC Mountain Top LLC and TLM Realty Holding LLC, represented by Davis Urban LLC and English & Assoc. Planner: Greg Roy Planner Roy introduces application and goes through presentation. He introduces the applicants. Gillette asks about previous discussion regarding building envelopes here. Roy doesn't recall that specifically. Spence talks about the past history of the lot, there have been no changes to GRFA or site coverage. Gillette asks if notification to neighbors is required? Spence says the neighbors approved it during the application process. Matt Davis is the applicant; he says he is happy to take questions. Kurz asks for public input. Rollie Kjesbo moved to approve. Brian Gillette seconded the motion and it passed (7-0). 2.4. A request for a recommendation to the Vail Town Council for a Prescribed 60 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Roy goes through a presentation on the history of the proposal and addresses some changes and the criteria for review. He introduces the applicants. Environmental Director Kristen Bertuglia walks through the history of the Gore Creek Strategic Plan. She references the identified sources of impairment of Gore Creek. She talks about the community and stakeholder input in the process, as well as the actions of the Town of Vail in service to the Gore Creek plan. We're here today for the last recommended strategy which is regulation. She believes we have arrived at the most appropriate solution and introduces Wadden. Watershed Education Coordinator Peter Wadden goes through a presentation which addresses the questions the board had from the last meeting. He talks about the goals from the Gore Creek Strategic Plan. He talks about the criteria for an effective regulation. He addresses the effectiveness of setbacks of different widths. He says the centerline setback is inconsistent and ineffective. He talks about how the town has dealt with non -conformity in the past with items like wood shake shingles and the W UI code. He addresses the number of non -conforming properties with the different setback distances. He talks about the actions' property owners can take. He reviews the public outreach accomplished since the last meeting. He talks about the implications of non -conformity as it relates to the streambank setbacks. He talks about the definition of the ordinary high-water mark (OHW M). Wadden introduces Jason Carey, the Principal River Engineer of River Restoration. Carey talks about his past work and how it relates to Vail. He says the OW HM allows the setbacks to be different in different places. It is a more logical approach from a healthy river standpoint. He talks about two major federal regulations: FEMA national flood insurance (100 -year floodplain), and waters and wetlands defined under the Clean Water Act administer by the Corps of Engineers. He talks about Vail's goals, and recommends following the FEMA model as a good way to empower local communities. He talks about the FEMA process and how that can be applied at the local level. The goal is to establish a baseline that can be administered and regulated locally. Variances to the line can be requested from the floodplain administrator. He recommends using this model but with two-year elevations. It would be modeled after the existing process in Vail with the 100 year. Gillette asks if the 2 -year mapping has been done. Wadden confirms yes. Gillette asks how the 2 -year line relates to the 100 -year floodplain? Wadden says the 100 -year line is further out than the two years. The 2 -year line is based on the two-year average and used to determine the OHW M. Carey says it is a statistical average of historical runoff. Over 30 years of data is evaluated to determine the two-year flood line. Gillette asks if the town is eligible for FEMA flood insurance? Carey confirms. Wadden says the proposal has no impact on the 100 -year floodplain. It is the same process, but the elevations are different. Pratt asks about the letter from Alderman -Bernstein. They are not affected but they raise an interesting point. Wadden clarifies — Pratty says never mind. Gillette asks how are they involved if they're not affected by the regulation? Roy clarifies that the notification was sent to all property owners in Vail. Pratt asks if their threats were hollow? Wadden says he's not qualified to comment, but the town attorney is drafting a response. Kurz asks if the proposal has been vetted by the town attorney. Wadden says it has along with the proposed code language. Kjesbo is generally supportive. He asks when issues arise in the future, will this be reviewed by staff? He also references a future project as it relates to stormwater management and impacts. Wadden talks about how other towns handle stormwater impacts. He says we're not proposing any code changes that would dictate that at this point. Kjesbo says that could be something for future consideration. Gillette asks about the project Kjesbo referenced. He says Public Works usually keeps good track of that. Kjesbo clarifies the details of the referenced projects. With best practices, some will do it, some wont. Wadden says it has been discussed internally, it is something to consider in the future. Roy says in practice when properties are redeveloped around the creek, environmental makes comments on best practices. Phillips says the new proposal puts 26 properties in non-compliance. He asks if they only realize that status during redevelopment. Wadden confirms. Phillips says this doesn't initiate an immediate hardship on the property. They are non-compliant only in redevelopment. Wadden says there are properties that have remained non-compliant for decades. When they rebuild is the only time they must come into compliance. Gillette asks about remodeling a deck that's non -conforming. Roy says if you start enlarging a deck the conformity would come into play. Gillette asks about different criteria for theoretical deck expansion. Roy explains current regulations. Spence says if a deck is non -conforming, maintenance is the only work that would not require coming into compliance. Gillette asks about non -conforming landscaping. Roy says generally you only have to bring into conformance the area that is non -conforming if that is in the scope of the project. Gillette clarifies if a remodel project is big enough, more compliance issues come into play. Roy says if you're removing 50% of the GRFA, that comes into play. He talks about other benchmarks like building materials with 500 square foot additions and that there are multiple benchmarks that trigger different requirements. Gillette clarifies that the benchmark here is a voluntary remodel, Roy confirms. Pratt cites a public letter, proposing that you can trade setback distance for increased riparian zone. Wadden says staff has discussed this, and the goal is to create something that is standard and uniform across town. The current regulations can confuse people, there is value in having a standard across town. It would be difficult to enforce the proposed idea. We'd run into issues if we were shrinking the distance between setback and riparian zone. Roy says the counsel and public would like more time, so they will be asking for a continuation today. Kurz asks if there are funds available to help homeowners. Wadden says homeowners are not required to do anything that would cost them money. We would ask them to stop mowing within 10' of the creek. If the ordinance is adopted by the PEC and Town Council, he will ask for funds to that effect. Kurz asks for public comment. Gillette asks for feedback from the town attorney of any legal ramifications. Roy confirms. Bellm says there are several people online and in the room that would like to speak. Kurz says they will allow three minutes each for public comment and not necessarily engage in back and forth Linn Brooks is the General Manager of Eagle River Water & Sanitation District. She talks about water sampling done in the past. Gore Creek was significantly impacted, and urbanization was the primary stressor. She talks about the factors that influence this and how Gore Creek was listed on 303D list. She brings up the Urban Runoff group and its actions. The river is getting healthier, and the setback ordinance will allow nature to return the stream to a healthier state. Several years ago the Town Council set the goal of getting Gore Creek off the list and this will require the regulations such as the one here today. For these reasons, ERW SD supports the proposal. John Rediker asks about the definition of the OHW M. How will future drought conditions impact this, and is the calculation always a rolling 30 years? Do we need to define 2 year floodline? Gillette says we're not answering questions right now but made a note of the questions. Mauriello speaks on behalf of the Evergreen Lodge. He is glad to hear that they're not asking for a final decision today. He says the proposed language you have has not been fully vetted by Kendra Carberry and hopes they will not take action today. He has three main issues. The first is the OHW M line and where it is located? He doesn't know if there will be a full dataset to establish this line throughout town. He references the letter to the board, and the methodology of how you determine the OHW M. He says we're in favor of identifying the OHW M and need to know where that is. He says he is recommending a 20' setback, but also wonders what a 22' setback would look like. How it would affect non -conforming structures and acreage. He also brings up the tributaries and says he will submit additional comments in writing. Wendall Porterfield speaks for homeowners in the 11th filing. He has some confusion about how the 2 -year floodline is determined and asks for clarification. He also asks about the code language, whether "shall" means has to be. He also asks if projects like deck enlargements can go into the riparian zone? He references the streambank protection ordinance, and whether this would apply to town property equally? He asks if the golf course would be impacted, as they might be one of the primary causes here. Devin Duvall is the District Wildlife Manager for Colorado Parks and Wildlife. He expresses support for the ordinance. He says recent events underscores the need for this type of regulation. He asks the board to look at written comments from his agency. He says riparian zones occupy a small amount of land yet have a disproportionate impact. Most wildlife depends on them, they serve as wildlife corridors and they remove pollutants. Gore Creek is a Gold Medal Fishery, and anglers contribute to Eagle County economy. He reiterates his support for the proposed ordinance. Rodney Linafelter says he is strongly in support of the proposal. As a recreational user of the creek, he has noticed a large amount of non-native sand that is appearing. He used to live on Booth Creek, at one point he was informed he was non-compliant with a structure and landscaping and worked with staff to address this. He references another case he heard where the developers of properties were awarded utilities in exchange for easements. His final question is whether we are addressing Gore Creek or the tributaries as well? Siri Roman is Director of Operations for ERW SD and a resident of Vail. Her children are often in the creek and it means a lot to their family. While the ordinance is a takeaway for some, she asks the board to consider the community impacts of a healthier creek. It will take tough decisions like this to preserve Gore Creek and its tributaries. She says this will be important with increased flooding from climate change and talks about some of the effects of the Mill Creek incident. Carrie Bernstein is an attorney from Alderman Bernstein. She submitted a letter on behalf of her clients; the Delpontes at 3070 Booth Creek Drive. She says the Town of Vail is condemning the portion of his property that is on Gore Creek. If the case proceeds there is some truth that the client and others will not have creekside property. This buffer will go right up to his building and patio. The impact to private property rights is missing from the discussion today. She says the 10' zone is a regulatory taking and a significant impact to property rights. She says the Town of Vail should pay compensation for this. James Dilzell speaks from Eagle River Watershed Council. The council supports the proposal, and he talks about the importance of the riparian area. He says stormwater runoff is an increasing threat to the river. Property owners often find increased value once the areas are established, this will lessen the degradation of environmental zones. He thinks this is a critical next step. Kurz asks if Wadden would like to comment on questions. Wadden says he will have more detailed data available on the OHW M moving forward. We are not condemning properties, that is a town -owned parcel. There is no debate about the Delponte property extending to the stream. Pratt asks if he is more than 25' from the river he is not affected. Wadden says that is correct. The property has not been specifically surveyed but Town maps indicate that the proposed setback lines do not extend as far as Mr. Delponte's property line. Pratt says he is a homeowner on the creek. He is in favor of the goals but says anything less than 30' is not as effective so it may be arbitrary numbers at that point. He says he is not a lawyer but thinks creating new non- conforming properties could be considered a taking. He asks staff to consider a system that trades expanded riparian buffer to shrink the building setback. Siebert had these concerns last time regarding takings. But he considered if we don't do anything, the taking that occurs is that the stream is degraded down the road. There is a benefit the property owners are getting, that should also be considered. Gillette brings up the comment about sand in the river. Wadden says this has been identified by staff. Staff has worked with CDOT to address this, he references the East Vail Exchange, and West Vail Pass Expansion. Black Gore Creek has a healthy bug population with higher sand levels, while Gore Creek has bug populations that do not meet state standards. There are things going on in Vail that impact the creek beyond the traction sand. He says we have to consider the tradeoffs being in a semi -urban environment. Gillette references the comments about the OHW M. Are they moving or fixed metrics? Wadden says they can be updated on a regular timescale, and there is an opportunity for residents to appeal the line. He says increased technology like lidar can help measure this, and streams are dynamic systems. Gillette says we could have more or fewer non -conforming structures in the future. Wadden says if we restore riparian habitat, it's less likely people will lose land to erosion. We can't predict accurately right now if there would be more or less non -conforming properties in the future, streams are always changing. Gillette references a property where 50 feet washed out. Wadden says they haven't established a timescale for readdressing these numbers. Roy says we don't have them for the GSA hazards, it could be included in the proposal. Wadden talks about FEMA floodline. Properties that have lost streambank have been permitted to reestablish property they have. Having a line now will establish a baseline of where we are now. Gillette asks if the ordinance discusses reclaiming property Perez says the ordinance is well intentioned, but there is a lot more that needs to be done to provide clarity. Changing from the centerline method to OHW M we are making things less certain for the community and property owners. There is uncertain language regarding the OHW M. She has concerns about the legal ramifications of this. She asks why we are going from the centerline to the OHW M. She is not sure if it is worth the uncertainty we are potentially creating. Gillette asks why we're switching to the 2 -year floodline? Wadden says equity and uniformity around town are the primary motivations. It creates a more uniform setback rather than the inconsistency of the centerline. Gillette asks about the two methods and if the centerline moves? Wadden says it does change. The OHW M is sensitive to bank changes and erosion. Perez asks if the OHW M changes every two years? Wadden says it doesn't change every two years. The 30 -year dataset determines the average of the highest waterline in a two-year period. We could set a timeline to change these numbers as appropriate. Gillette asks when going from the centerline to 2 -year high water mark is it harder to determine. It seems they are equally difficult to determine. Wadden says it is easier to determine the high-water mark. The dataset will be made available soon. Gillette says that dataset should be produced where the public can react to it before the final meeting. Phillips says the centerline of the river has changed significantly. From a consistency standpoint, the OHW M moves less than the centerline. Gillette asks if redevelopment uses off a map that exists. Phillips asks how old is the current map? Wadden is not sure, it could be around 2002. Kjesbo asks about the 2 -year high water mark calculation. Wadden clarifies. Gillette asks for further clarification on the calculation. Carey says it is a statistical analysis of flows that happen every year. Kjesbo would like clarification for the board and for the public as well. Carey says the 2 -year floodline is analogous to the 100 -year floodline. Perez is confused about the calculation like the other board members. She doesn't understand the 2 -year floodline methodology and would like further clarification. Gillette says it is important how often the map is updated. Perez asks if that is true of the centerline and when it was updated. Wadden confirms, says it was last updated a couple decades ago. People could hire a wetlands specialist as part of an appeal of the elevation -based baseline. Perez asks how much this would cost? Wadden says the cost of a surveyor's time. Perez says it is shifting the burden to a homeowner. Gillette asks if you can appeal the 100 -year marks today? Carey says you can through an involved process. In order to regulate, Vail needs a baseline to regulate against, which is what this system does. Gillette asks if you can appeal the setbacks of the centerline right now? Wadden thinks you can have them surveyed Pratt says it is similar to the hazard's maps, an engineer or surveyor can look at the site. Phillips says we all support this effort, but we want to establish standards that are discernable to the public. He says an updated centerline map would help. It's important to get a little more data, otherwise we're spinning our wheels. He says we need to clarify some things for property owners and the town. Gillette asks if the centerline was resurveyed? Wadden says it was not as part of that process, and that he will provide the OHW M dataset. He thanks for board for feedback as the process is making a for a better ordinance. Phillips says the group needs to do due diligence on this. Pratt says he had to survey when he his property went right ne)d to a setback line. Mauriello says the streambank setbacks are happening in real time because the surveyors do it as part of an application. It has always been incumbent upon property owners to provide that data in real time. There is no regular updating of hazard maps. The only updates he is aware of is when the applicant comes in to apply for such. Gillette asks if the OHW M can be identified visually, why is it a confusing metric? Mauriello says he's been advocating for surveyors doing it by visual inspection. He wants to allow both methodologies, and the least restrictive on the property owner should be the one that is used. Phillips is not sure that's a great tradeoff. He says we're also trying to protect the environmental health of the river. Mauriello suggests increasing the no -mow zone. He says to think about what non -conforming status has done to the entirety of West Vail. People don't want to redevelop and lose what they have. Gillette asks for Wadden's response. Wadden says the maps do not have regulatory sway. Both methods need to be surveyed on the ground. The elevations establish a baseline that make it easier for surveyors. The method Mauriello referred to is ecologically based. Staff believes the elevation method is more effective as a regulation because it is not open to debate. There is still an opportunity for subjectivity in the visual method. An elevations -based baseline leaves less open for debate. Gillette asks how hard is the appeals process? Wadden says it would go to the Town Council like the hazard maps. Gillette asks if the appeals can come to the PEC? Roy says the proposed language mimics the appeals process for the hazard maps. Gillette says it should be as simple as delineating your wetlands. Spence says the difference is who has adopted the maps. If we don't have an adopted map, we would have a different process. Gillette says he is trying to get the right process. Roy says we would need something that is adopted by Town Council. Wadden says the town would have to pay to have wetlands delineations done. It is much less labor intensive to adopt lidar. Gillette says we don't have to do it like the hazard maps. Let's establish a baseline, and if not, they can hire a professional. Gillette says appealing to the town council is not an easy process. Phillips says it should not be easy, it should be an elevated process. Ultimately it falls on council; they adopt the maps we are passing this on for recommendation. Gillette says you are getting a better product if you get eyes on the ground Phillips asks are we not doing that already? Wadden says what they've done is based on stream cross-sections with interpolated data in between. Perez says we don't have language to allow people to appeal? Wadden says they do, Roy says it is in Subsection E of the proposal. Kurz wants to bring the debate to a close. The robust discussion shows that the protection of Gore Creek and tributaries is a major issue we need to address. It will not be a perfect solution for everybody, but it's important to continue moving forward. He wants time to allow staff to address these concerns. Rollie Kjesbo moved to table to November 22, 2021. Reid Phillips seconded the motion and it passed (7-0). 2.5. A request for review of a Minor Subdivision, pursuant to Section 13-4, 2 min. Minor Subdivisions, Vail Town Code, to adjust property lines in the vicinity of Lots 14 and 15, Block 1, Vail Village Filing 6, and setting forth details in regard thereto. (PEC21-0050) The applicant has requested this item be tabled November 22, 2021. Applicant: Mexamer Forest Road LLC, represented by KH Webb Architects Planner: Jonathan Spence Rollie Kjesbo moved to table to November 22, 2021. Brian Gillette seconded the motion and it passed (7-0). 2.6. A request for a recommendation to the Vail Town Council for a zone district 2 min. boundary amendment, pursuant to Section 12-3-7, Amendment, Vail Town Code, to allow for the rezoning of a portion of Lot 15, Block 1, Vail Village Filing (826 Forest Road) from Two -Family Primary/Secondary Residential (PS) to Outdoor Recreation (OR) and to zone a portion of the Forest Road ROW to Two -Family Primary/Secondary Residential (PS) and setting forth details in regard thereto. (PEC21-0051) The applicant has requested this item be tabled November 22, 2021. Applicant: Mexamer Forest Road LLC, represented by KH Webb Architects Planner: Jonathan Spence Rollie Kjesbo moved to table to November 22, 2021. Brian Gillette seconded the motion and it passed (7-0). 2.7. A request for the review of a Variance from Section 12-21-12, Restrictions 2 min. in Specific Zones on Excessive Slopes, Vail Town Code, to allow for a variance from the maximum percent of lot covered by driveways and surface parking, in accordance with the provision of Section 12-17, Variances, Vail Town Code, located at 816/826 Forest Road / Lots 14/15, Block 1, Vail Village Filing No. 6 and setting forth details in regard thereto. (PEC21- 0045) The applicant has requested this item be tabled November 22, 2021. Applicant: Mexamer Forest Road LLC, represented by KH Webb Architects Planner: Jonathan Spence Rollie Kjesbo moved to table to November 22, 2021. Brian Gillette seconded the motion and it passed (7-0). 2.8. A request for the review of a Variance from Section 12-21-12, Restrictions 2 min. in Specific Zones on Excessive Slopes, Vail Town Code, to allow for a variance from the maximum percent of lot covered by driveways and surface parking, in accordance with the provision of Section 12-17, Variances, Vail Town Code, located at 826 Forest Road/Lot 15, Block 1, Vail Village Filing 6 and setting forth details in regard thereto. (PEC21-0048) The applicant has requested this item be tabled November 22, 2021. Applicant: Mexamer Forest Road LLC, represented by KH Webb Architects Planner: Jonathan Spence Rollie Kjesbo moved to table to November 22, 2021. Brian Gillette seconded the motion and it passed (7-0). 3. Approval of Minutes 3.1. October 11, 2021 PEC Results Rollie Kjesbo moved to approve. Brian Gillette seconded the motion and it passed (7-0). 4. Adjournment Rollie Kjesbo moved to adjourn. Brian Gillette seconded the motion and it passed (7-0). The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department PLANNING AND ENVIRONMENTAL COMMISSION January 24, 2022, 1:00 PM Virtual on Zoom 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom. us/webinar/register/W N_QJ ybkNzgQ2eMGMYxH6FEOg After registering, you will receive a confirmation email containing information about joining the webinar. 1.2. Attendance Present: Ludwig Kurz (via phone), Jenn Bruno, Brian Gillette, Rollie Kjesbo, Karen Perez, Henry Pratt, Reid Phillips (departed at 4:15pm) Absent: None Executive Session 2.1. C.R.S. Section 24-6-402(4)(b) - to have a conference with the Town 10 min. Attorney to receive legal advice on specific legal questions regarding proposed code amendments. No action as a result of executive session. 3. Main Agenda 3.1. A request for a recommendation to the Vail Town Council for a Prescribed Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) 90 min. Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Karen Perez calls meeting back to order. All members other than Ludwig Kurz are present. Perez says information germane to the executive session was not present in the session. Therefore, the board has decided to hear item 3.1 today but not reach a final decision due to this fact. Pratt and Bruno agree Planner Roy introduces the proposal. Water Quality Education Coordinator Peter Wadden gives a presentation on the proposal. He talks about the strategic plan and town efforts along the river in the past. He talks about the process of reaching the proposed ordinance. Gillette asks about the science behind the 25' setback. Wadden says it comes from the 2008 Planners Guide to Wetland Buffers Gillette asks if this is from the Environmental Law Institute. Wadden confirms Wadden continues presentation. He talks about the community input process. He talks about the criteria for an effective regulation and the goals of an effective regulation. Gillette says he wants elaboration on moving from the center line to high- water mark setback. Wadden says this will be addressed in presentation. Wadden talks about the number of non -conforming properties in town. He talks about past code changes, non -conforming properties in town, and the grandfathering process. The proposed code language will increase the number of non- conforming properties from 102 to 128. He says non -conforming status has not impacted home insurance rates. Perez asks if multifamily structures were included as they are usually under commercial insurance. She believes this will increase the commercial liability, asks if Wadden can clarify that point. Wadden says he will follow up. He talks about Town Code 12-18-19 Restoration. Gillette and Perez talk about the challenges of providing restoration within one year per non -conforming code section (12-18-19). Bruno agrees, says we need to give people more time. Gillette says we should move forward with the process on getting that language changed. Wadden talks about the reasoning for using the Ordinary High -Water Line (OHW L). A centerline -based setback is not effective at places where the stream is widest, where the setback is within the waterway. Wadden introduces Bill Hoblitzell with Lotic Hydrological Hoblitzell gives a presentation about the difference between the Ordinary High -Water Mark (OHW M) and the Ordinary High Water Line (OHW L), as well as the 2 -year flood line. He defines the 2 -year flood line in hydrological terms. He talks about the 2 -year flood, 10 -year flood, and 100 -year flood measurements for planning and engineering purposes. He talks the process for going from flow rates to inundation maps for planning. Gillette asks about creating cross-sections at Gore Creek as well as the different between the High -Water Mark and the 2 -year flood line. Hoblitzell explains why the 2 -year flood line is a great proxy for the active stream channel boundary. He defines bank -full flows, they form the physical marks on the side of the bank. He talks about the US Army Corps of Engineers definition for the OHW M as well as the limitations of the measure. Hoblitzell says the 2 -year flood elevation is a good objective baseline. Field surveying will get you a bunch of different elevations from different people. He talks about the safety benefits for larger setbacks. Pratt asks about difference between the Army Corps' OHW M method and the OHW L. Hoblitzell says the OHW M is based on physical indicators in field surveys. Wadden adds that both measures try and determine the elevation where the stream fills it banks. Gillette says the lines now are a computer simulation, but the proposed ordinance allows homeowners to do a visual survey for the appeals process. Wadden says the OHW L is the best baseline for regulation. He acknowledges that there will be instances where a homeowner can appeal the OHW L to the Planning and Environmental Commission (PEC) by enlisting a qualified professional. Gillette asks if the previous version of the proposal had appeals going to Town Council. Wadden says this was amended and the recent version has the PEC as reviewing body for this kind of appeal. Gillette asks if currently staff cannot make a determination is that correct? Wadden says right now the buck falls to the property owner and surveyor to provide that data. Gillette questions the additional level of review. Wadden says the higher level of review would only kick in during an appeal. Pratt says the proposed ordinance requires a letter from the Army Corps for the appeal. Why can't we just rely on the surveyor? Wadden says that is why staff is recommending the OHW L over OHW M. He talks about the subjectivity involved in OHW M determinations. A hired consultant needs to have their lines verified by the Army Corps. Perez asks for clarification between the OHW L and OHW M. Wadden talks about the methodology for determining both measures. Gillette asks about the appeal process, is that using statistical modeling or observation? Wadden says as proposed the town would adopt a series of elevations along the stream based on the OHW L. An applicant could hire a consultant to conduct a OHW M study as part of the appeals process. Perez asks how often the OW HL is recalculated. Wadden says the Town Council can choose to update it when they feel it's time. Perez asks for clarification about the 2 -year floodline. Hoblitzell clarifies the timeframe for change, it is about 30 years for significant change to occur. Gillette asks what the PEC is reviewing during the proposed appeal process? He not qualified to review these, could staff review these appeals? Wadden says the appeals would come to the PEC with a staff recommendation. This is a large enough decision that it rises to a town commission. Wadden continues presentation. The OHW M is an Army Corps methodology that uses field indicators. The OHW L is a FEMA method. The ordinance proposes that the OHW L is used for the baseline and the OHW M for appeals. He talks about the method for finding the centerline -based setback. He talks about the method for determining the OHW L in the proposal. Gillette asks what type of professional can determine the high-water mark. Wadden says it would be a qualified professional. Gillette asks if we want to strengthen that language. Wadden says staff didn't want to limit the number of people qualified to do this. Perez references the proposed appeal language. Why are we using the OHW M if it is not a reliable standard as presented? Wadden says the method has drawbacks, but neither model is perfect. The best outcome is to incorporate data from both methods and allow applicants to bring that data into the equation. Additionally, it is important to have the Army Corps verify that data. Gillette asks about the process for verification from the Army Corps Wadden says there is a regional office, they typically verify in three to six weeks in the summer months. They provide a letter that endorses or doesn't endorse the surveyor's line. Bruno asks about the setbacks of neighboring communities. Which method do they use? Wadden says it varies, some still use the centerline method. Most recently adopted setbacks have used the OHW L as the basis. Pratt asks about challenging the OHW L. Could I get a surveyor to remap the elevations for the OHW L and get new cross sections? Wadden clarifies could a property owner get specific cross sections for their property. Hoblitzell says the cross-section are used to determine the elevations. It may be more precise, it's unlikely it will move the elevation towards or from the stream. Pratt asks if it will give you a different line. Hoblitzell says the engineering models will get a similar line even across different computer programs. Wadden gives a case study on Middle Creek. Two qualified wetland scientists found different delineations using the OHW M methodology. Gillette asks if they're on same side of stream. Wadden confirms. The difference here is why Staff recommends that the Army Corps verify the lines for appeals. Perez asks if the Army Corps will verify these delineations. Wadden says we have not done that yet, but we could, the Corps could do it in the spring. Phillips asks about the appeal language, and references Aspen's appeal language. He suggests that the language should require a licensed professional for the appeal. We can clean up that portion of language of who can make the new determination. He likes the option of an appeal process. He has no problem with the PEC reviewing this because it is elevated to that level. Wadden says he will follow up on that. Gillette asks if the Army Corps has a stipulation on who has to prepare the survey that they review. Wadden says he can look further into it. Gillette says the town language should be congruent with the Corps requirements. Perez references public comment, a memo from Mauriello Planning Group regarding a grandfathering provision. Has staff reviewed this? Wadden says an applicant will need a completed application submitted before the code changes, the laws currently in effect will apply. Gillette disagrees with this. He talks about his past experience; we don't give people enough time. There should always be some sort of waiting period where people can plan ahead for changes. Wadden says he understand the sentiment. He will need to speak to the town attorney regarding that process. Perez says there is specific language on grandfathering. Wadden says staff opinion is that there should not be. Gillette disagrees and thinks that there should be a grandfathering clause. Like at the Evergreen, these projects take years to plan, there needs to be an allowance. Planning Manager Spence says you could delay the date of enactment. However, we can't go by applicants claiming maybe they're thinking about developing, that's not a legal standard. There's no grandfathering of properties that might be considered. Pratt agrees and recommends picking a deferred implementation date, maybe January 1, 2023. Gillette wants to keep looking at it and maybe get more public comment. Wadden references images of existing and proposed setbacks in relation to the Evergreen Lodge Gillette says the diagram is not clear without a scale. Phillips says the appeal process is still available to applicants. He doesn't see a whole lot of difference between the existing and proposed in the images. He says at some point we have to draw a line that allows us to keep the river healthy. If we keep kicking the can, it doesn't help us protect one of our greatest assets. If we continue to allow variances, I don't think we're doing much as a commission. Phillips says if the Army Corps has a certain threshold, that is theirs not ours. If we're requesting their verification then this is included in their verification, we don't need that exact language. He likes the fact that they will ask for the Corps verification and put the burden on the homeowners to show evidence. He says there are certain protections that we need to put into place. Gillette says an appeal on the lines may be different than the hardship proposed on the hotel. The grandfathering or the delay is a better tool to deal with these issues. Phillips has no problem with a delay. He doesn't want to see grandfathering of unverified projects. He agrees with Pratt in terms of delaying the ordinance. Perez says we should continue moving through the Staff presentation Wadden reiterates the reasons for changing the setback, including the direction from the Gore Creek Strategic Plan. He reiterates why staff is recommending the 25' building setback from the OHW L. He says these actions could help get Gore Creek off the 303D list of impaired waterways Perez asks for public comment. Kurz returns. He was listening to the presentation. He would like to ask Perez to continue running the meeting since he does not have video. He says the whole issue is being taken seriously by everybody on the board and community. He says staff is doing an amazing job with presenting the materials. He agrees with comments that Phillips made, we're losing site a little bit of what we're trying to do to protect the creek. We get caught up in individual issues and not looking at protecting the asset that is the creek. Perez asks for a copy of the two presentations. She asks for public comment. She says it is an opportunity for comments but not a question and answer or debate session. Gillette asks if the public can receive these presentations Bellm says they can be added to the PEC webpage. Dominic Mauriello speaks on behalf of the Evergreen Lodge owners. He talks about the work done by Heather Huston on Mill Creek and that they would have appreciated the opportunity to look at that with the town. The data displayed by the town regarding the setbacks in that area is probably not accurate. He applauds the goals of the proposal and doesn't have issues with 10 foot no mow area. He references his letter to the PEC and asks what are the things that are allowed within the setback. He says the assumption being made is that the 2 -year flood is the accurate measure to be using. He says we need to look at the areas throughout town, the 1.5 -year measure might be more accurate for this proposal. The problem is the implementation of this, 5 feet matters, it is not trivial to some people. The point of the grandfathering is what Pratt suggested, giving people time to get their applications in before the changes. He talks about the two methodologies, there should be an allowance that you can go out there and have everyone agree on the marking of the line. He says it would be a good idea to look at the current GIS maps. Jessica Hernreich is a Vail Village landowner and citizen. She says if you change the setbacks without a grandfathering clause you are setting up some property owners for failure because they were built under the previous regulations. She would also like to know more about how often the high water line is changed or addressed. How is that reconciled with the purchasing of water rights for snowmaking with Vail Resorts? Wendell Porterfield appears on behalf of property owners in the 11th filing. He wants clarification on how the OHW L is established. W ill the town be required to revisit the dataset used to determine the OHW L? Regarding the setbacks, who makes determination on structures that lawfully exist on a certain date? Blondie Vucich is an East Vail resident of 30 years. She says at one point the creek had gold medal fishing status. Landscaping practices have contributed to the degradation of the creek. The Vucich family reinstituted riparian habitat on their property, they no longer mow or fertilize. The proposed setbacks and moderation are not unreasonable, living here requires coe)asting with ecosystems. Perez says the board has read a lot of written public comment that was submitted. Blondie Vucich says this type of shared information is really helpful and not everyone goes back to the record to review the comments. Dan Johnson is General Manager at the Grand Hyatt Vail. He is thankful for the thorough proposal and the concern they have is that Gore Creek is their front yard. They have been good stewards over the years, they respect the no -mow zone. The conversation about a deferred enactment and defining intent to develop should receive more consideration. Gillette asks what timeframe do you think is appropriate? As a community member how many months do you think is appropriate? Johnson says four to six months may be appropriate for their projects. It should be more than 90 days; it also includes the availability of purveyors. Len Wright is a Vail resident and Planning and Water Resources Manager at Eagle River Water and Sanitation District. He thinks staff has done a phenomenal job at addressing the complex topics. He says enhancing riparian vegetation has the benefit of shading and better water temperatures. The OHW L model is deterministic so you get the same answer every time, his advice from a policy perspective is to be objective as possible. He advocates for a fixed objective line, he cautions that a FEMA floodplain model is different than the hydrology of a 2 -year model, and advocates for a more detailed modeling survey. Staff addressed the horizontal equity issue but should also consider the vertical equity and the steepness of the banks. I n terms of variances and appeals it would be good to consider locations where you could get closer to the stream based on the vertical height. Gillette asks if you're suggesting that appeals should not use the Army Corps method? Wright says yes, the subjective piece changes season to season and expert to expert. The real question is the appropriate flow rate to be used. He doesn't want to get in a situation where you pick your expert, would rather be objective and have it defined from the Town's perspective Gillette asks where the number should lie. Wright would step back from an opinion on that. He says climate change is also changing the statistics which are referenced. The frequency of intense events is changing. Wayne Forman is an attorney representing 1 Willow Bridge Road. They want more time to evaluate the proposal. The 10' no mow zone is far less of a concern than the 25' setback that would put the building in non -conforming status. Tom Hopkins lives on the creek in East Vail. He fears a 25' setback won't do much for the environment, it's a minimal aspiration. Are there stretches along the creek where a bigger setback could be accommodated, the golf course for instance. And if we can do that, let's take the opportunity before there is a lot of development. Perez asks if we could see how that could impact some of those areas Richard Strauss is from Arvada and visits Gore Creek and Eagle River for flyfishing. He references his written comments and says the OHW M is the line between public and private lands. He recommends the book "Public Rights on Rivers." He says that public rights should also be considered. Perez says his forum is now to discuss these issues. She asks if there is anything in particular regarding public or private rights that he would like to reference. Strauss suggests the book and says there are a lot of competing issues regarding water rights. Perez asks about the letter sent by Strauss, to make sure that the board receives his letter. Gillette says this is a legislative item, not a quasi-judicial item. The public is allowed to lobby the PEC, but they need to debate in a public forum. Heather Houston speaks from Birch Ecology. She wants to clarify the mapping they did in the field. She says they did do a good job of representing the high-water mark, it's important to note that there is a new culvert upstream. The photos shown in the presentation were in an anomalous area. It is not rocket science to see where there is a distinct change in vegetation. They have to look closely at the banks on both sides, and snow complicates the interpretation. She says the discrepancies shown in the presentation were based on old data. She wanted to provide more context to that section. Gillette asks if she can explain the process with the Army Corps verification. Houston says it's a wetland delineation report, a verification goes to the bottom of their stack. It is rare for them to visit delineations these days. They process things more quickly with a wetland permit application, a straight delineation can take some time, she had a process that took more than six months. The three to six weeks timeframe is not consistent with her experience. Gillette asks how she would value the verification. Houston says it depends on the applicant, and the level of scrutiny the Corp applies. Gillette asks what kind of consultant has the expertise to dispute the line. Houston says ecologists do wetlands delineations and there is no one measure you have to look at everything. Gillette asks what other kinds of ecologists? Houston says surveyors have asked her for advice, most of the time its fairly obvious, there's a distinct change in vegetation and topography. Hydrologists, ecologists, wetland scientists, and surveyors can do the work. She doesn't think the OHW M is guesstimating, it is a direct measurement in the field. The modeling method is based on the quality of the inputs. Lidar data may or may not be accurate enough for an individual property. Perez asks for Houston to be promoted to be able to share some images on her screen. Houston shows a photo of the bank and explains the placement of her flags. Gillette asks does this accurately depict the 2 -year floodplain. Houston says no, the 2 -year floodplain is not equal to the OHW M in a place like Vail. The 1.5 -year measurement might be more equivalent. Gillette says it's an important thing to resolve, the closer we can get the line to observation is important. We want to lower the discrepancy down from what you see to what we map. Houston says Black Creek Hydrology agrees on the 1.5 -year line. Instead of speculating what the 2 -year line is we should go out and measure it on the ground. She doesn't feel it is imprecise to measure on the ground. Gillette asks about the cost of the measuring. Houston says depending on the project and the size of the property it may be around $2,000. Pratt clarifies the distance between the 2 -year statistical average and the bank -full measurement. Houston says you would expect to see the difference between the 2 -year line and the OHW M, as shown in the presentation. Depending on the verticality of the bank, the difference between the 2 -year line and OHW M varies. She provides additional examples in photographs. Gillette thanks Houston for the explanation. Hoblitzell reiterates that the benefit of the 2 -year line is that it is not typically going to be outside of the bank. It provides a safety margin that benefits the stream. By picking a conservative flow (2 -year) over 1.5 year were putting our intent on the side of stream health, the errors fall towards that side. Russ Craney is the General Manager of Vail Residences at Cascade Village. All homeowners are in favor of the riparian zone proposal but are concerned about the 25' setback as it pertains to decks and other features. Is there some give and take, can a two-story deck encroachment be offset by a larger riparian zone? Regarding the suggested six month window for a Design Review Board (DRB) submittal, he would suggest closer to a nine month window. Jason Carey is a Principal Engineer at River Restoration and consultant to the Town of Vail. He wants to thank everyone for consideration on this nuanced issue. He says everyone's comments are generally correct because it's a dynamic system. He encourages the Town to set up a system that can be regulated and managed by the staff. The task is not to fix a dynamic system but set up a way to regulate and manage that. Staff has done an admirable job of that. Tom Vucich is an East Vail resident and wants to support the comments of Phillips and Kurz. He wants to keep the big picture here and not get burdened down with the minutia of specific properties. He hopes that the PEC will support the effort of preserving the creek. Jessica Hernreich says that as a resident in the village, she would appreciate if more consideration could be given to the appeals process which sounds daunting in the given timeframe. Gillette asks about the appropriate timeframe for delaying the enactment. Dominic Mauriello likes the idea of delaying until the end of the year. We've had the current setback for 50 years and another nine months isn't going to make a difference. A minimum could be 120 days, but until the end of the year could be good. Another thing to think about is separating the core area from other areas of town. Perez talks about her experience on the Denver Planning Board. She says the delay there was 11-12 months but that was for rewriting the entire zoning code, not one section. She says until the end of the year might be appropriate in this case. She says it is a complicated issue and would recommend that form based zoning could be applied. She says the PEC needs to balance environmental and planning considerations. Bruno says no one has had issues with the no -mow zone. We need to enforce this regulation. She would like to reevaluate 1.5 versus 2 -year lines and rethink if the Corps of Engineers is the best backup. A more detailed model should be researched. She has no issues with delaying the adoption of this and thinks that the setbacks should be universal and not have different distances in different zones. Gillette is more comfortable with the 2 -year line given that it is conservative. He thinks we should take the Corps verification off the appeals process and should trust the ecologists. People didn't get into the business to cheat it, they got into the business because they care. Kjesbo agrees with Bruno and Gillette. He agrees on the 2 -year line and not needing the Corps verification. He also agrees with delaying implementation and not grandfathering projects. He also agrees 25' is the minimum setback that should be considered. Gillette agrees with Kjesbo on using mapping for the high-water line and using the surveying method for appeals. Pratt brings up the setbacks for tributaries and would like to hear more discussion on that. He doesn't want the Army Corps involved in appeals. He is in favor of setbacks and no -mow zone as long as we don't impact too many people negatively. Kurz agrees on the 2 -year line as well as on delaying the implementation but not for too long. He doesn't want to look at the core areas any different than other areas as would defeat some of the purpose we're trying to accomplish here. He says the discussion is benefitting the community. Perez is not convinced the OHW L is the right measurement. She is concerned about creating more non -conforming properties. She thinks the current system works fine and is clear. One of the board's jobs is to make things clear, not more confusing. We haven't gotten to the other Takings concerns and if the proposal is clear it will be more easily enforceable. She is also in favor of the no -mow zone. Gillette says we need to give staff direction. Can we agree on delaying implementation to the end of the year? Kurz would prefer that was a shorter time. Bruno says we've waited 49 years to fix this, a few extra months won't hurt. It is the fair thing to do to not blindside people. This is a long-term plan and January 1, 2023 is a fair date and gets us to our goal. Gillette is also in support of the High -Water Line, with an appeals process. Bruno likes the 2 -year line but would like to see if the Army Corps can give a better timeframe on their process. Gillette asks if staff needs clarification on additional items. Wadden lists board comments: who is qualified to perform appeals using the OHW M as well as insurance of multi -family properties and the implications of non -conformity. Perez clarifies Phillips had a family event and had to leave. She says any determinations should include his feedback. Kurz suggests tabling for a month to give staff time for the requested information. Gillette asks for staff input. Wadden recommends returning at the next meeting. Karen Perez moved to table to February 14, 2022. Brian Gillette seconded the motion and it passed (6-0). Absent: (1) Phillips 4. 1 nformational Update 4.1. Update on the implementation of the West Vail Master Plan. 30 min. Applicant: Town of Vail Planner: Matt Gennett 5. Approval of Minutes 5.1. January 10, 2022 PEC Results Perez has a correction to the minutes from January 10th. She stated the memo wasn't included in the packet, not that should couldn't read the item in the packet.Ludwig Kurz moved to approve as amended.. Brian Gillette seconded the motion and it passed (6-0). Absent: (1) Phillips 6. Adjournment The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department PLANNING AND ENVIRONMENTAL COMMISSION February 14, 2022, 1:00 PM Town Council Chambers and Virtual on Zoom 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom.us/webinar/register/WN tXLOeRs9QKieoSkwg888Jw After registering, you will receive a confirmation email containing information about joining the webinar. 1.2. Attendance Present: Ludwig Kurz, Brian Gillette, Rollie Kjesbo, Karen Perez, Jenn Bruno, Reid Phillips, Henry Pratt Absent: None Executive Session 2.1. C.R.S. Section 24-6-402(4)(b) - to have a conference with the Town 15 min. Attorney to receive legal advice on specific legal questions regarding proposed code amendments. 3. Main Agenda 3.1. A request for a recommendation to the Vail Town Council for a Prescribed 60 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Peter Wadden, the Watershed Education Coordinator begins presentation. He reviews the changes made to the proposal since January 24th He talks about the Gore Creek Strategic Plan. He mentions that a healthy creek depends on healthy riparian habitat. He talks about the community input process. He talks about the number of non -conforming properties in town under various scenarios. Under the 25 -foot setback, there would be an increase of about 5% of non -conforming properties Perez asks if he is counting structures or number of units? Wadden says structures. Perez confirms the number of units could be higher than the number of structures. Wadden says the current numbers are comparing existing non -conforming structures against conditions under the proposed language. Perez wants to be clear that we're talking structures not units. Phillips asks about properties on Mill Creek, Booth Creek and Buffehr Creek. Wadden says this includes Gore Creek and its tributaries Wadden did not find anything that insurance rates would be impacted by non -conformity for multi -family and commercial properties. Insurance agents don't ask if a property is non -conforming when setting the rate for a policy. Wadden talks about Town Code 12-18-9, Restoration. Commissioners had expressed concern about the one-year period here. Staff did not feel it was appropriate to address this code language as part of this proposal. Gillette and Perez say this needs to change before code goes into effect. Spence says that can be part of the Planning and Environmental Commission's (PEC) recommendation to Town Council. Pratt asks if this period can be extended. Spence says that is correct, it hasn't been a regulatory concern in his time at the town. Perez says it could be an issue with a multi -family building, the one-year period will be deficient for that process. Spence says that can be included in any recommendations to Town Council. Bruno recommends extending the time period to 15 -months in the recommendation. Wadden says the effective date of the ordinance can also be included in the recommendation. Gillette thought it would be part of the ordinance. Pratt says this applies to all fire damage; the town has been accommodating with this process and it doesn't need to be changed for the ordinance today. Phillips feels this issue is separate from the ordinance we're considering today. Spence says the key word is commenced in the language. Kjesbo clarifies that the Town will work with the owners in these cases. Phillips asks if cleaning up is part of that commencement. Perez asks where that is defined. Spence says it is a working policy Wadden says they would prefer that conversation is a separate discussion and included outside the language of this ordinance. Wadden and staff see no reason not to delay the effective date of the ordinance. On the positive side it would give property owners additional time to prepare for this ordinance. On the negative side, it would likely create additional non -conforming properties near waterways before the new regulations go into effect. Perez asks if the presentation today was included in the packet? Wadden says it was not. Spence says delayed implementation could be included in the recommendation that the PEC forwards. It is often that the formal ordinance isn't completed until prior to Council. He says you're reviewing the changes to the code not the ordinance itself. Wadden clarifies that the Eagle County setback is 75 feet from the bank and the Environmental Protection Agency recommended setback is 100 ft from the bank. He reviews the methodology for the Ordinary High -Water Mark (OHW M) and the Two Year Floodline (TYFL). He talks about the benefits and drawbacks of each method. The data the town is proposing to use was put together by River Restoration. The benefit of the TYFL is that it is an objective line from which to regulate. Gillette asks about a creekside project and says a survey will include both of those numbers. When it comes down to it, you'll always have a survey, whichever one number benefits them is the one they'll use. He thinks we've spent too much time on this. Pratt thought that the Army Corps method only applies if you want to appeal the TYFL. Wadden says that is correct Gillette says we almost get a worse product by including this language in the ordinance because applicants will take the better deal. Wadden says ease of enforcement and recognition is the greatest benefit of the objective line. Gillette says the modeling was necessary to craft the ordinance but maybe not to include in the ordinance. Phillips asks how you establish a usable baseline without using one of these methods. Wadden says that is why staff is recommending this approach, it creates a baseline for the regulation. Phillips says in the last meeting there was a big back and forth about which method to go with. He appreciates that staff is recommending one with an appeals process. At some point we have to back up our setback baseline. Wadden says staff's opinions is that we should have a baseline to regulate from, in this case the TYFL. He says the OHW M methodology would have been more expensive to apply to the whole town. Phillips clarifies that we backed off the 1.5 -year floodline. None of the experts actually said that the 2 year floodline benefitted the river more than the 1.5 year floodline. Wadden talks about the appeals process. What was hanged from last time is that the property owner would not need their survey verified by the Army Corps. Staff will review these submissions. Gillette asks about the general variance process. He talks about a scenario of a property accessed by a bridge across a creek, which is not allowed in the ordinance. Spence says that could be addressed in a variance process. Wadden talks about the submittal requirements for an appeal. Gillette asks about this specific language in the ordinance right now. Wadden says this was not currently included but will be included at an administrative level. Perez asks for clarification. Wadden says the decision on submittal requirements would be decided at administrative level but the PEC not staff would have the final review. Perez says she is uncomfortable that there are not currently criteria for the PEC review. What are their review criteria? Gillette brings up an example. If a surveyor says this is the line, who are we to say no. He thinks it should be a staff review that could be appealed to the PEC. Perez says this ordinance is incomplete without that review criteria. Spence says it would be similar to other processes, staff accepts documents from a qualified professional with a stamp. However, it does have to go to a governing body. Perez reiterates she would like the review criteria included. Spence says the process is more of a correction than an appeal. Perez says legally it has to be appealed. Spence says it is similar to the other appeals process. Wadden says that the method would have to follow the Army Corps methodology. Gillette asks what is a shapefile? Wadden says it is a GIS file that shows location of the lines in question Spence says it allows staff to update the map layer. Gillette asks if the GIS map will be updated based on each property that comes back with data. Wadden confirms. He reiterates why staff is recommending a 25 foot setback. He talks about setbacks in neighboring communities. Bruno asks when the current setback was implemented in Eagle County. Wadden says 2006. Town studies show the 25 foot setback best approximates existing setbacks without reducing them. He addresses the 1.5 vs 2 -year flood elevation. The 2 year floodline is a slightly more conservative near average baseline. In places where the bank is steepest, the difference between the two is very small. I n places where the bank is wider, it increases. Wadden asks why change setbacks from 1976? The Gore Creek Strategic Plan instructs staff to do so. Existing setbacks have been ineffective in protecting Gore Creek. Centerline setbacks are also inequitable. Vail has changed a lot in 50 years, that can be addressed through changing regulations. Gillette talks about letter from Berkshire College. Why didn't we adopt those items? Wadden says there is an item to allow for control of noxious weeds Gillette references other items in letter. Wadden says the best way to address invasive species was allowing property owners to remove those species listed as noxious weeds. Gillette asks about the uses of walkways, pools, patios. Perez references the current language in the code. Wadden says they tried to match it to the existing language regarding what is allowed in setbacks. Spence clarifies the existing language in Town Code 14-10-4. Gillette asks if the ordinance would be better off referencing Town Code 14- 10-4. Spence says there was community concern about that. Gillette says we might not want driveways and parking in this setback. Kjesbo likes the idea of relating the ordinance language to Town Code 14- 10-4. Wadden says the intention was to use the same language as is currently in the code. The change would be how the setback is measured, not what is allowed in the setback. Spence says we don't want to add new language that is only applicable to this setback,k that raises questions about other setbacks. Gillette is concerned that the current language in the ordinance is confusing. Says we should either reference 14-10-4 or spell it all out. Spence suggests we should reference 14-10-4. Perez says the way it is written it seems to limit only those specific items described. Let's relate it to 14-10-4. Spence says that was staff's original approach, they support that approach. Perez references. Section C -1-d Does the word "public" modify the other things enumerated, or does it apply to private things as well. Wadden says private bridges would be addressed through the variance process. Spence says the intent is only public, staff can address the language there. Perez references language "buildings lawfully existing subject to chapter 18." Wadden says that section addresses non -conforming properties Kjesbo references letters that asked what you can do with existing non- conforming structures. Spence says you can maintain what is existing as it is. Pratt thinks staff did a good job explaining why they want 25 foot setbacks on tributaries. Since the 25 foot number increases the number of non- conforming structures is there a rationale to allow an option of a 20 foot setback, but a 15 foot riparian zone. Gillette says the Fire Department wanted a 15 -foot buffer. Wadden says the proposed setback would create uniformity throughout the town. What Pratt is proposing could create challenges with fire protection. Regarding tributaries it is valuable to create uniformity across town. Pratt says the filtration occurs in the riparian zone. Kjesbo asks if the town monitors the stream where it enters and exits the town. How does the water quality change? Wadden says the Town monitors nine sites for insects. At the bottom of the pass the stream has healthy bug populations, by the time you get to Bighorn Park it has failed the standards every year but one since 2009. Pratt asks if somebody is talking about changing the state rules on pesticides. Wadden says it is in discussions. Currently local jurisdictions cannot pass more stringent regulations than what the state has passed. Gillette asks about section C-1. Was that better defined elsewhere? Spence says in the current adopted code there is no allowed path, but it has seemed like a good idea. Wadden talks about the Town approach to informal pathways in the past. Gillette asks about restoration of the first 10 feet. Wadden says language addressing restoration is included Kurz asks for public input. Wayne Forman represents 1 Willow Bridge and the HOA. He references their letter from February 3rd. He asks about an artificial drainage on their property and would like to see that explicitly excluded. Second, regarding one year reconstruction they would like to see that time period extended with this ordinance. He references Paragraph D-3 says the current language is confusing as to a successful appeal and should be clarified; get rid of clear and convincing evidence language. Dan Johnson represents the Grand Hyatt Vail. He says last time there was a consensus to have the ordinance take effect Jan. 1, 2023. He was surprised not to hear that today and would ask for consideration of that delayed ordinance. Dominic Mauriello represents Evergreen Lodge. He agrees with Forman regarding the section update. You need some criteria for review or change when you can have an appeal. You can have an either or standard where you measure from either line, whichever is less restrictive. He understands from staff that the intent is to measure the streambank with the line, so why not use OHW M. The setback today is a building setback, he talks about what is allowed in a setback. He agrees that that section C -a should be made very clear as there are issues with the existing code. Under B add sidewalks. He talks about parking within setbacks. He likes Pratt's idea of allowing the exchange of setbacks and no -mow zone on tributaries. It's not clear that you can do restoration in the no -mow zone, that should be made clear. Last meeting we heard that if an application comes in prior to the effective day of the ordinance it would be processed with the current rules. Spence confirms. Mauriello suggests putting the effective date in the ordinance. He says things can get lost in the process, the proposal should be complete now. He references instances where the 2 year floodline in the town data is off. Gillette asks if it matters. Mauriello says the model is not accurate in some instances. If we're flexible why are we concerned about changing the time outlined in the code for the restoration process. He references the Matterhorn Inn. Spence says staff will take any recommendation forwarded by this committee. Mauriello suggests you should include a complete copy of your comments in the recommendation to Council. It has been identified that the FEMA mapping is off vertically by 4' on Middle Creek. Should there be a provision that deals with errors in the mapping of the TYFL? Gillette says those errors can be addressed through the appeals process. Spence says over time the layers will get better and better. DM says look at the setbacks on pg. 28, 29, and 30 of the packet. He supports measuring from the streambank but is concerned about the errors in the mapping. Gillette says every lawyer they've heard from has had a problem with the language regarding the appeal. He likes the idea of either-or language. Jon Rediker says their needs to be an implementation date. He doesn't see a benefit to delaying, a delay would allow more non -conforming structures to be built. Mauriello references the setback lines shown on pg. 28 of the packet. He shows the examples on pg. 29 and 30 as well. This reinforces the idea that you also need the OHW M included in the ordinance. Pratt says where you pointed is where there's a beaver dam, that could affect the high water mark. Bill Hoblitzell says the maps are correctly delineated. Gillette asks about the criteria for the appeal process. He likes the idea of either-or language. Bruno agrees. If you can appeal with the OHW M, we're already saying it's an acceptable method. Property owners can choose one of the methods. Gillette says it could be more of a submittal requirement than appeal process. Wadden asks for commission support. Gillette, Kurz, and Bruno support allowing the property owner to choose the method. The commission supports an effective date of January 1, 2023. Kjesbo says they want all the language in there when it is presented to Council. Perez talks about the enumerations in C -2-a and that it should references section 14. Gillette agrees. He asks about best management practices as mentioned in the ordinance. Wadden says that should be left somewhat broad as the standards of the industry change. Spence suggest the language could say "restoration specific with best management practices." Kristen Bertuglia is the Environmental Sustainability Director at the Town of Vail. She addresses the "either or" provision. That would take out the objectivity that staff is trying to establish. If we want to guarantee a win for the creek, the only way to do that is to start with this baseline. If you let the applicant decide, she's not certain we'll end up with additional riparian area, it's something to consider. Bruno says when you allow an appeal process you're giving that opportunity anyway. Bertuglia agrees but says that the standard is a little bit higher Bruno asks for some clear criteria on an appeal process. Bertuglia says it's important that the Army Corps process is followed Gillette asks for clarification. Spence says if the board directs staff to review, there would be no appeal process to the PEC. Gillette says staff can verify applicants used the proper procedures. Phillips says the less restrictive measure is a treacherous road to go down.. Why not adopt the more restrictive of the two, it also eliminates the gamesmanship between the two methods. He talks about the appeals process. From him there wasn't a consensus to go to the lesser standard. We've kicked this can down the road, the less restrictive route doesn't necessarily set a great baseline to repair the health of the creek. Gillette says the modeling was trying to identify the high water mark, the mark you see when you go out to field survey. Perez doesn't like eliminating going back to the PEC. The whole idea was to have a public process that allows property owners to make their case. It's a balancing act. Pratt says whichever line is better is the wrong way to present it. We need some basic criteria which we can base the regulation on. Spence says it would be incorrect to replace surveyors with the commission. Perez says criteria can be established with a scientific, objective approach. We should establish the criteria to give property owners the opportunity for the appeals process. Gillette says the appeals process is referring to the line used for the setback. Perez says the appeals process is to look at how the ordinance might be burdensome. Gillette says that is addressed by the variance language laid out elsewhere. Spence says this is purely numbers. Perez says we should look at some of the memos that have been received. She asks about the point of the appeals process as presented. Wadden says the point is to allow an applicant to appeal the lines and use the OHW M where the TYFL may be in the wrong area. It only references those considerations. Perez says there is a legal side to this of why there is an appeals process. Gillette says the memo does not make sense. Spence says the word correction could be substituted for an appeal. An appeal could have the connotation of needing deliberation, while this is more of a correction to the data. Phillips agrees it's a correction or clarification of the high-water mark. That is separate from the variance process Pratt agrees. Wadden confirms the intent of the appeals process. Specific criteria would be based upon the Army Corps methodology. Spence says we don't necessarily need criteria for a correction. Gillette says you have to use the Army Corps method, we don't need to enumerate everything. That is a surveyor's job. Spence says there will be specific language for restoration processes following best management processes. Gillette asks about the time period for restoration. Wadden says staff doesn't believe it should be included in the streambank ordinance because of its impact in other areas. Spence says changing the time period can be included in a recommendation to Town Council. The commission is in favor of the 25 foot setback over the 20 foot setback. The commission is in favor of an effective date of January 1, 2023. Perez clarifies criteria is needed for the correction process not an appeal process. She supports the effective dates, recommending to change the restoration time period, and referencing 14-10-4 in C-2. Bruno says its not an appeal process so much as a correction. Perez asks for clarity from Town Attorney if this correction process meets legal requirements. Spence says he will work with the Town Attorney on this. Brian Gillette moved to continue to February 28, 2022. Henry Pratt seconded the motion and it passed (7-0). 3.2. A request for a recommendation to the Vail Town Council, pursuant to 30 min. Section 12-3-7, Amendment, Vail Town Code, for prescribed regulations amendments to Title 12, Zoning Regulations and Title 14, Development Standards, Vail Town Code, to amend the regulations on building design and landscaping in the W ildland Urban Interface to reduce the risk of wildfire and setting forth details in regard thereto. (PEC22-0002) Applicant: Town of Vail, represented by Paul Cada Planner: Greg Roy Paul Cada is the W ildland Program Manager. Cada gives a presentation on proposed changes to W UI code amendments in Ch. 12 and 14, as well as a separate code proposal for chapter 5. Gillette asks a clarification about the existing exemption for reskins. Gillette is concerned about removing the exemption for additions under 500 square feet. Cada says as written only the part that's added has to comply. Gillette says from a design standpoint it might not match. Cada says since 2019 we have not encountered a situation where an addition hasn't met design standards because of that. Gillette gives an example about cedar shakes. Cada says the materials adoption in 2019 doesn't allow siding with openings. Spence says the exemption doesn't include prohibited materials. Gillette asks if prior to this was there anything saying you couldn't use cedar shake. Why would you have something that didn't match the rest of the house? Cada clarifies the language from 2019. Gillette says the exemption for tiny additions was there because would burn anyway so why not have it be the same material. Spence says it hasn't come up in the last two years. Perez says two years might not be enough to say. Gillette agrees with the reskin proposal but doesn't want to see the exemption changed for additions under 500 square feet. Cada says compliance siding cannot have things like shake. Will a 250 square foot addition make a difference? Often it includes other things. What we;'re trying to do is limit the number of exceptions. The intent as council agreed is how to implement these codes quicker. Spence says if the commission would like to forward a recommendation that this exception is maintained they can do that. Phillips asks for a straw poll. The commission supports maintaining the exemption for additions under 500 square feet. The commission is in favor of the reskin proposal. The commission is in favor of mansard roof proposal. Gillette talks about limits of disturbance, and how often you are required to remove all the trees on site. Cada says that is not true. Gillette asks about a site with 15 foot property lines Cada references a landscape plan from 272 W Meadow. The Fire Department will work together with projects to identify the best fit. Ignition resistant was non -prescriptive to allow flexibility. Gillette asks if you can have trees withing 15 feet of a house. Cada says on existing structures, existing trees can remain. Spence says there is not a section of the code that says you can't. It's based on the landscape guidelines. Philips says this gives the Fire Department the opportunity to work with homeowners and find the best solution. Spence says staff had the same concerns as Gillette during the initial proposal in 2019 which proved unfounded. Cada talks about the review process with ignition resistant landscape guidelines. No one opposes the landscaping guidelines. Rollie Kjesbo moved to approve, with amendment to keep exemption in 12- 11-3 relating to addition under 500 square feet. Brian Gillette seconded the motion and it passed (7-0). 3.3. A request for a recommendation to the Vail Town Council, pursuant to 2 min. Section 12-3-7, Amendment, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, to amend the regulations on landscaping to clarify how landscaping beneath decks should be considered and setting forth details in regard thereto. (PEC22- 0001) The applicant requests this item be tabled to the March 14, 2022 PEC Meeting. Applicant: Town of Vail Planner: Greg Roy Rollie Kjesbo moved to table to March 14, 2022. Brian Gillette seconded the motion and it passed (7-0). 3.4. A request for a final recommendation to the Vail Town Council on a major 2 min. amendment to Special Development District No. 36, Four Seasons, pursuant to Section 12-9A-10, Amendment Procedures, Vail Town Code, to allow for reconfiguration of e)asting accommodation units, fractional fee units and dwelling units, and to amend the Employee Housing Plan to locate a portion of the existing onsite employee housing offsite, located at 1 Vail Road/Lots A -C, Vail Village Filing 2, and setting forth details in regard thereto. (PEC21-0059) This item will be renoticed for a later date. Applicant: Four Seasons Resort, represented by Andrew Sellnau Planner: Jonathan Spence 4. Approval of Minutes 4.1. January 24, 2022 PEC Results Rollie Kjesbo moved to approve. Karen Perez seconded the motion and it passed (7-0). 5. Adjournment Rollie Kjesbo moved to adjourn. Brian Gillette seconded the motion and it passed (7-0). The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department THIS ITEM MAY AFFECT YOUR PROPERTY PUBLIC NOTICE NOTICE IS HEREBY GIVEN that the Planning and Environmental Commission of the Town of Vail will hold a public hearing in accordance with section 12- 3-6, Vail Town Code, on February 14 2022 at 1:06 pm in the Town of Vail Municipal Bui0ing. Register in advance for this "nar: httpsJlus02web. zoom.uslwebinarlregisterANN_ tXL0e Rs9QKieoSkwg88&IW After registering, you will receive a confirmation email containing information about joining the webinar. A request for a final recommendation to the Vail Town Council on a major amendment to Special Development District No. 36, Four Seasons, pursuant to Section 12-9A-10 Amendment Procedures, Vail Town Code, to allow for reconfiguration of existingq accommodation units, fractional fee units and aelling units, and to amend the Employee Housing Pian to locate a portion of the existing onsite em toCylaee housin oftssiite, located setting f � details inregard Village t l veto -{PE -000059) 45 min. Applicant: Four Seasons Resort, represented by Andrew Sellnau Planner: Jonathan Spence A request for a recommendation to the Vail Town Council, pursuant to Section 127 Amendrnent, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, to amend the regulations on landscaping to clarify how landscaping beneath decks should be considered and setting forth details in regard thereto. [PEC22-0001 ] 45 min. Applicant Town of Vail Planner: Greg Roy A request for a recommendation to the Vail Town Council, pursuant to Section 127, Amendment, Vail Town Code, for prescribed regulations amendments to Tithe 12, 7 -ori Ae ulations and Title 14, Development Standares ail Town Code, to amend the regulations on builiing design and landscaping in regulations Urban Interface to reduce the risk of wildfire and setting forth details in regard thereto. (PEC22-0002) 45 mm. Applicant: Town of Vail, represented by Paul Cada Planner: Greg Roy The applications and information about the proposals are available for public inspection during office hours at the Town of Varl Community Development department, 75 South Frontage Road. The pc s imrited to attend site visits. Please call 97Dd79 2138 or visit www.vailgov.corNplanning for additional information. Sign language interpretation available upon request wish 24 -Four notification. dial 711. Published January 28, 2022 in the Vail Dail . PUBLISHED IN THE VAIL DAILY ON FRI�AY, JANUARY 28, 2622. PEC Notice February 14, 2022 - Page 2 of 2 PLANNING AND ENVIRONMENTAL COMMISSION February 28, 2022, 1:00 PM Town Council Chambers and Virtual on Zoom 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom. us/webinar/register/W N_QJ ybkNzgQ2eMGMYxH6FEOg After registering, you will receive a confirmation email containing information about joining the webinar. 1.2. Attendance Executive Session 2.1. C.R.S. Section 24-6-402(4)(b) - to have a conference with the Town Attorney to receive legal advice on specific legal questions regarding proposed code amendments. 3. Main Agenda 3.1. A request for a recommendation to the Vail Town Council for a Prescribed 20 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Planner Roy introduces the item. Peter Wadden is the Watershed Education Coordinator. He gives a presentation recapping changes made since the last meeting based on feedback from the Planning and Environmental Commission (PEC) and public comment. He addresses proposed changes to the corrections process since the last meeting. In the previous meeting, the PEC directed the change from an appeal process to a corrections process. The proposed corrections process will use the same methodology as original process using the Two -Year Flood Line. He outlines the proposed corrections process. He addresses public comment from One Willow Bridge. Wadden gives a diagram of the proposed ordinance and how cross-sections would work in the proposed corrections process. He contrasts this with previously proposed Army Corps Methodology which could create inconsistency in setbacks between neighboring properties. He talks about the Gore Creek Strategic Plan Policy. Existing setbacks have not adequately protected Gore Creek. Perez thanks Staff for making changes. She finds the te)d amendment somewhat deficient. The effective date the PEC recommended is not in the text amendment, it should be in there. Kendra Carberry says it is in the actual ordinance in Section 8. Roy says it will be in the language of the ordinance before Town Council. Perez says we should add it in proposed recommendation. Make it clear to Town Council that that is in our recommendation. Gillette says the date was in the text in the code in another section Roy clarifies those are used in a different manner. Perez addresses the two-year period for rebuilds. She is wondering about getting that language changed. Phillips says changing that language within the building department code would be problematic. Changing that could have considerable consequences within the building code. Gillette says it needs to be a separate process but done concurrently with this process. Perez is concerned that issue was not addressed on the agenda. The original charts showed the number of non -conforming structures but not units, so she is concerned about multi -family properties. The number of properties impacted is higher, do you have that number? Wadden says he has the number of structures. Perez says this wasn't addressed by Town attorneys. We need to know the numbers of other areas around town that will be impacted. Wadden says it's difficult to parse out individual units within a multifamily development. When it redevelops, you're not taking away the property rights of an individual property. Perez says that is not her concern. Her concern is the criteria under which the PEC is asked to make a recommendation. She cites Criteria #2 and #4. We have focused purely on the environmental issues, so she wants to balance the other considerations. The number of properties versus structures ties into development objectives and master plans. This is why she wants the numbers. This is not a personal concern this a community concern. Wadden cites the numbers regarding structures. Perez talks about structures with multiple units. The numbers are magnified in multi -unit buildings. She would like to know the numbers of individual properties impacted. She's in favor of the no -mow zone and concept but feels like we don't yet have a clear picture. Perez cites Section C -1-G, line. She cites the "or/and" language. Wadden says it should be and/or. Perez asks what is the intent? Can we get some clarity on this section? Wadden defers to attorneys on code language. Gillette says with duplexes or townhomes, this ordinance could impact some property owners on a lot but not all of them depending on the location. Wadden says when non -conformity comes into play when it is torn down and rebuilt the whole building is impacted. Perez asks what about cases of fire? What is the intent for language in C -1- G? Matt Mire thinks the language is and/or. It was probably a typo. Perez asks which one is it? Mire assumes it is and/or but will clarify it. Perez says this a text amendment, so we have to nitpick the details. Gillette likes the idea that with the three cross-sections you can get rid of some of the anomalies that would otherwise occur. Do we know if the 2 -year high water mark is correct? With the Ordinary High Water Mark (OHW M) you're not approximating it, you're finding it in the field. With the floodlines we're approximating the high-water mark. What we really want to do is start the setback from the actual edge of the creek. Why don't we look and see what's there? Wadden says the 2 -year floodline is not visible but is present and immutable. Gillette has asked surveyors who says the cross-sections can be more expensive than finding the high-water mark. You're not gaining consistency moving from the high water mark to floodlines. Wadden says he does not agree with that point. Gillette questions how accurate the cross-sections would be as proposed. Wadden clarifies the minimum requirements in the proposed corrections process. Gillette talks about an anomaly at Mill Creek Circle. A situation like that could throw off a cross-section. Wadden says this could be addressed by taking more cross-sections. Kjesbo says you could take additional cross-sections to address those situations. Phillips says last time we agreed on the Two -Year Flood line (TYFL). The modeling is not arbitrary, it provides at least a baseline for the setback. Kjesbo says Staff wants one baseline not either or, then there is a consistent baseline. Gillette asks what if baseline is wrong? Perez says last time we asked for criteria for the corrections process. The current criteria are muddying the waters more. Phillips says the cross-section points are not arbitrary, they are at both property lines and the center. Wadden says staff discussed this point so that property owners could not cluster them where they want. The more data we have the better the model gets. The corrections we receive will also change the line for adjacent property owners. Perez says the property line for the structure is not the same as a unit. This is why we need more fine-tuning. Wadden says it's shared property in the case of multi -family. Perez cites examples of areas she is concerned about. This effects the entire town, it's a good start to the criteria but it's still not finalized because it could be manipulated. Wadden says it is less easily manipulated than the OHW M. Gillette says the correction process will make the town modeling more precise. But if the TYFL is wrong, it's not going to correct for that error. Wadden says it may not be precisely the bank in all cases. It's more important to have a clear baseline for the regulation. Gillette says the corrections process should address that by finding the bank in the field. Wadden says the intent is finding a clear and equitable baseline. Gillette asks what if it is giving you less of a setback? Wadden says the TYFL is more equitable because it doesn't differ based on the width of the creek at that point. The TYFL will always be the same no matter who calculates it. Gillette asks how is there human error identifying the OHW M but not the TYFL? Wadden says there is subjectivity to the OHW M process. Different surveyors can find different results. Environmental Sustainability Director Kristen Bertuglia says staff has discussed some of these concerns. The TYFL is an actual elevation that exists. W hereas with the OHW M there is more subjectivity. The TYFL can't be wrong, the more refined it is the better it is. Gillette wants whichever method protects the creek better. Now you're saying your neighbor can change your lines based on their cross-sections Wadden says corrections should refine the line and improve it. The TYFL is most susceptible to inaccuracy where it is farthest from a cross-section. More cross-sections will make the model more accurate. Phillips asks which process is more arbitrary. Wadden says the OHW M is more subjective. Phillips confirms that experts have said that the TYFL is the more consistent mark. Water flow can change the OHW M measurement. He wants a consistent baseline for citizens to look at. There is a corrections process if they find inconsistencies. Surveyors say year to year the OHW M is all over the place. Wadden says Staff shares that opinion and proposed the TYFL as a more objective baseline. Bruno agrees with Phillips. We have to look at science and what is most consistent and reliable. She appreciates that people have a chance to make corrections. We're heading in the right direction; our creek needs us to act. Gillette clarifies that finding the OHW M is no longer in the proposed corrections process. Bertuglia says the corrections process now uses the same methodology as the TYFL, rather than using the OHW M which is more subjective. The proposed corrections process provides a way to correct it, but it's not using either/or method. The OHW M line moves year to year so we would end up with checkerboard regulations. The variance process allows for people whose property has special circumstances. Gillette clarifies that the TYFL moves just as much as the OHW M year to year? Wadden says there is such imprecision in the OHW M process, the centerline moved by 50 feet between one application and the next. Gillette says there is human error in a cross-section. It's silly to say that one is more accurate than the other. Wadden says there could be error in both processes but that there is more in the OHW M methodology. Kurz cites section D -1-A, where the language is unclear. Wadden says "which" will be added. Gillette asks about the corrections process. Wadden says some individuals might have more wherewithal to go through corrections process with the OHW M as previously proposed. Kurz asks for public comment. Heather Houston says there is a lot of confusion between the TYFL and OHW M. The TYFL relies on a lot of assumptions, it's not fair to say it's more accurate than the OHW M. It relies on specific topographic data and vegetation. There are a lot of inputs in the model that rely on assumptions. It is estimating something that can be found in the field. The two sets of flagging that were presented make that method seem more imprecise than it actually is. She questions the assertion that the two studies show the OHW M is more imprecise. The differences are a few inches in most cases. The OHW M is not arbitrary, there is some interpretation but something within six inches of each other is a pretty good result. The 2 -year floodline model depends on the accuracy of the inputs. The cross-sections are more expensive than a survey. Dick Parker references a memo he sent the PEC. He is a resident of Vail Rowhouses since 1975. He represents the owners on the west half who are in one building. His concern is that the proposed ordinance moves their building into non-compliance, after they just went through the process of the Vail Village Rezoning. We've corrected one thing and we've moved to another. We haven't discussed topography in this discussion. On our site, the aerial measurement is different than the linear measurement on grade. We all have the same interests in mind, but this regulation as proposed would put this building in non-compliance. He asks for consideration of the unintended consequences of regulations as written. Kurz says we only received your memo today. Parker asks are we going to regulate human activity of using the stream, which is a big factor. The city parks are mowed up to the stream. The big factor is consideration, he appreciates Ms. Perez's comments. He is concerned about putting buildings into non-compliance. Perez asks that the memo from today is put into the record. Kjesbo asks about the concerns on non -conformity. Roy says you only need variance if you're looking to expand the portion that is non -conforming. You do not need a variance to improve any other parts of the building. Kjesbo says you don't need a variance unless you're making the non- conformity worse. Perez asks about the example of redoing a patio. Roy says you could maintain a non -conforming patio. Gillette asks about a deck that is non -conforming, could you replace a rotted deck? Roy says removing and replacing it would require a variance. Perez is concerned that replacing a rotted deck for safety would require a variance. The language is lawfully existing, once you become non- conforming you're no longer lawfully existing. Kjesbo says this point has to be clarified. Parker says in the past non -conforming comes to interpretation of the individual person working within the building department. Wadden addresses the property that Mr. Parker is referring to Kjesbo says there must be a definition. You should be able to rebuild something for safety without needing a variance. Perez echoes that concern and cites the existing language. Mike Smith talks about One Willow Bridge. He talks about the mapping lines on this property. He understands that this could be a mapping issue and not the data itself. He appreciates Staffs' consideration of this issue. He still has concerns; it's not assured that the corrections process will address this issue. They are also concerned about the cross-sections process in this case. The variance process also does not provide comfort to property owners. Significant uncertainty remains. The map should be revised to remit the TYFL at 1 Willow Bridge. The 25' setbacks will convert complying buildings to non-conformance and the 1 year timeframe should be extended from one to two years. Dominic Mauriello speaks on behalf of Evergreen Lodge. Last time the PEC said there needs to be a OHW M opportunity for people to question the TYFL. That is no longer in the proposed ordinance, there is no longer a provision for the OHW M. The OHW M does not change year to year. The surveyors he talked to have been comfortable using the Army Corps methodology. The corrections process is not as simple as represented. He cites examples of variable data from past meeting. He says property lines aren't smooth and it's hard to have a smooth line between those. Relying on an engineered model is what's causing the inconsistencies rather than going out and measuring it in the field. What is the new lidar data that's coming? He appreciates that the effective date is not until the end of the year, does that give more time to consider the new lidar data and take some OHW M measurements? Kurz asks for commissioner comments. Phillips agrees with Gillette and Perez regarding the corrections process. Surveyors are not agreeing on this issue across the valley. Perhaps the OHW M could be in the corrections process rather than the latest proposed method. He wants to find a baseline; we can't keep kicking the can down the road. We need to seize the moment, and try to find some continuity with a baseline that still provides the owners an option. If you live on the river you probably have the resources to go through the corrections process. We've sacrificed this creek too long. Gillette says going back to the OHW M in the corrections process solves a lot of these issues. It's a simple process that would happen anyways. He is curious whether the Army Corps methodology eliminates problem with man- made drainages. The concerns about clarifying what can be rebuilt is important. We need more definition before this ordinance goes into effect. He agrees with Perez that we need to see progress on this before we forward a recommendation. It will have ramifications on day one of the effective date. Kjesbo says this will put more properties into non-conformance and we have to have a remedy. If something isn't safe the owners need a way to rebuild. He understands Staff's desire for consistency in the regulation. Maybe we should look at things this summer now that we've settled on an effective date. He agrees with Perez, how does the number of individual structures impact individual units? Gillette asks if each individual owner on the creek was notified? Wadden says in the case of HOAs, they were sent to HOAs. Gillette asks if we should notify every single owner. Pratt says being on the other side, it's easier to notify the HOAs. Perez says there's no one size fits all but has concerns that about the notification. Bellm says we can't email, the county provides addresses not emails. Perez asks about other outreach efforts. Spence says notice requirements are legal requirements that are part of the town code. They are required by law, not subject to review by the PEC. Staff will continue to do this until directed otherwise by Town Council. Pratt is concerned one size doesn't fit all. Everyone in this process has had an example of a non -conformity. It bothers him that they are going down that road. We all agree on the 10' no -mow zone, why not pass a recommendation to Town Council to enact that now. Then we could take time on the setback issue. If 25' is good for Gore Creek, it seems excessive for the tributaries, 20' could be good for those. He agrees the OHW M should be part of the corrections process and also understands Staff's desire for a consistent baseline. Bruno leaves the meeting Perez agrees there haven't been concerns about the no -mow zone. She says the environmental concerns are important, but we need to look at the units affected by non -conformity. She also wants to address the non- conforming time period concurrently, as well as the language for rebuilds. She knows the code section is complex and appreciates Staff's efforts. She says artificial drainageways should be an exclusion to the setback. She thanks staff for the hard work, let's take the time that it needs to get it right. Kurz says the PEC has shown respect for both the public and the process, as well as property owners. By delaying implementation, the PEC has shown concern for the issue. He had hoped for a conclusion before some Commission members terms run out. He is concerned about kicking the can, we potentially weaken the outcome of what we want to do. Because of the input in the process, we've come a long way in getting to the right place, even if we're not quite there yet. He commends Staff and Wadden during this process. Eventually this will be a star in the cap of this community. He asks for a tabling so that comments from today can be incorporated moving today. Gillette asks about the date for term limits Bellm says end of March. 4. Pratt asks if it's possible to split the 10' mow -zone from this and get that approved. Roy says we can't discuss an ongoing application with Town Council unless we get a recommendation today. Perez reminds Wadden about the language changes in C -1-G, D -1-A. Roy says Staff is asking for a vote not a tabling today. Gillette doesn't think that is appropriate. We're supposed to vet legislation, we shouldn't vote until that is complete. The comments from the PEC need to be submitted to the Council. Perez says if you want an up or down vote today, it won't be a good vote. Roy says the PEC comments would be included in report to Council. Gillette says not all of the PEC's concerns from last meeting were included in the latest proposal. Perez says the proposal is still unclear, we're not there yet and would like to see this through to completion. Perez moves to table. Gillette seconds. Kurz asks for further discussion of the motion. Wadden says he won't interrupt the process. If this commission wants to table, he won't interrupt. Pratt says it cannot be discussed with Council until the PEC votes. Phillips would like Council to know where the process is, we're close to finishing this up. Bellm says Council will get the minutes from this meeting. Spence says staff will provide Council with an update. We won't discuss the specifics but will make them aware of the status of the application. He clarifies that Staff can't look for direction from them out of order. The minutes will also be available to them. Gillette clarifies does the creek have gold medal trout status. Wadden says gold medal status is present from Red Sandstone Creek to Eagle River. CDPHE status is not there on the whole creek. Phillips says Gold Medal status was lost on the upper creek in the mid - eighties. Approval of Minutes 4.1. February 14, 2022 PEC Results Perez has a clarification on page two that she asked for the number of units 5. 1 nformational Update 5.1. Aquatic Entomologist, Dave Rees, will provide an update on macro 40 min. invertebrate populations in Gore Creek as surveyed in September 2020. Applicant: Town of Vail Planner: Pete Wadden 6. Adjournment The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department Published in the Vail Daily February 25, 2022 TOWN OF VAIL ' Memorandum TO: Planning and Environmental Commission FROM: Community Development Department DATE: March 14, 2022 SUBJECT: Town Code on Nonconforming Structures Planner: Greg Roy SUMMARY The Planning and Environmental Commission (PEC) requested a review of the Town Code on Nonconforming Structures in Section 12-18, Nonconforming Sites, Uses, Structures and Site Improvements, Vail Town Code, to review the existing language and request Council review the section and direct Staff to start a text amendment application for the changes. II. DESCRIPTION OF REQUEST The PEC has recommendations on changes to the Section in Vail Town Code with regard to Nonconforming Structures. This memo is meant to summarize those changes for review by Town Council. III. BACKGROUND During a recent application, the PEC brought up concerns regarding how Town Code does or does not allow nonconforming structures to be replaced. During this recent application on waterbody setbacks, Staff explained how a nonconforming structure could be maintained, but if it was willfully removed it would be unable to be rebuilt. The PEC brought up three issues of note that would be subject to possible correction. One was the limit in the amount of time someone has from the time a structure is destroyed by fire or other calamity, by act of God or by the public enemy to commence restoration and that one year was not sufficient time. Another concern was that nonconforming structures, such as decks, that are unsafe due to age could not be rebuilt without going through the variance process. Lastly questions around the term "legally existing" and how that affects the administration of this section. IV. APPLICABLE PLANNING DOCUMENTS Staff finds that the following provisions of the Vail Town Code are relevant to the review of this proposal: Title 12 — Zoning Regulations, Vail Town Code 12-18-1: PURPOSE.- This URPOSE:This chapter is intended to limit the number and extent of nonconforming uses and structures by prohibiting or limiting their enlargement, their reestablishment after abandonment, and their restoration after substantial destruction. While permitting nonconforming uses, structures, and improvements to continue, this chapter is intended to limit enlargement, alteration, restoration, or replacement which would increase the discrepancy between existing conditions and the development standards prescribed by this title. (Ord. 8(19 73) § 20.100) 12-18-2: CONTINUANCE.- Nonconforming ONTINUANCE:Nonconforming sites, uses, structures, and site improvements lawfully established prior to the effective date hereof may continue, subject to the limitations prescribed in this chapter. Sites, uses, structures, and site improvements lawfully authorized by permits or regulations existing prior to the effective date hereof may continue, subject to such limitations as prescribed by such permits or regulations. (Ord. 8(1973) § 20.200) 12-18-3: SITES.- Sites ITES:Sites lawfully established pursuant to regulations in effect prior to the effective date hereof which do not conform to the minimum lot area and dimension requirements prescribed by this title for the zone district in which they are situated may be continued and shall be deemed legally established building sites, subject to the site development standards prescribed by this title. No such site shall be further reduced in area or dimensions. (Ord. 29(2005) § 40: Ord. 8(1973) § 20.300) 12-18-4: USES.- The SES: The use of a site or structure lawfully established prior to the effective date hereof which does not conform to the use regulations prescribed by this title for the zone district in which it is situated may be continued, provided that no such nonconforming use shall be enlarged to occupy a greater site area or building floor area than it occupied on the effective date hereof. Any subsequent reduction in site area or floor area occupied by a nonconforming use shall be deemed a new limitation, and the use shall not thereafter be enlarged to occupy a greater site area or floor area than such new limitation. (Ord. 29(2005) § 40: Ord. 5(2001) § 5: Ord. 8(1973) § 20.400) 12-18-5: STRUCTURE AND SITE IMPROVEMENT. Structures and site improvements lawfully established prior to the effective date hereof which do not conform to the development standards prescribed by this title for the zone Town of Vail Page 2 district in which they are situated may be continued. Such structures or site improvements may be enlarged only in accordance with the following limitations.- A. imitations: A. Lot And Structure Requirements: Structures or site improvements which do not conform to requirements for setbacks, distances between buildings, height, building bulk control, or site coverage, may be enlarged; provided, that the enlargement does not further increase the discrepancy between the total structure and applicable building bulk control or site coverage standards, and provided that the addition fully conforms with setbacks, distances between buildings, and height standards applicable to the addition. B. Density Control: Structures which do not conform to density controls (includes GRFA and dwelling units/acre) may be modified, only if the total gross residential floor area of the enlarged structure does not exceed the total gross residential floor area of the preexisting nonconforming structure. C. Open Space And Landscaping: Structures or site improvements which do not conform to requirements for usable open space or landscaping and site development may be enlarged; provided, that the usable open space requirements applicable to such addition shall be fully satisfied, and provided that the percentage of the total site which is landscaped shall not be reduced below the minimum requirement. D. Off Street Parking And Loading: Structures or site improvements which do not conform to the off street parking and loading requirements of this title may be enlarged; provided, that the parking and loading requirements for such addition shall be fully satisfied and that the discrepancy between the existing off street parking and loading facilities and the standards prescribed by this title shall not be increased. (Ord. 14(2006) § 4: Ord. 29(2005) § 40: Ord. 8(1973) § 20.500) 12-18-6: MAINTENANCE AND REPAIRS: Nonconforming uses, structures, and site improvements may be maintained and repaired as necessary for convenient, safe, or efficient operation or use, provided, that no such maintenance or repair shall increase the discrepancy between the use, structure, or site improvement and the development standards prescribed by this title. (Ord. 8(1973) § 20.600) 12-18-7: DISCONTINUANCE.- Any ISCONTINUANCE: Any nonconforming use which is discontinued for a period of twelve (12) months, regardless of any intent to resume operation of use, shall not be resumed thereafter, and any future use of the site or structures thereon shall conform to the provisions of this title. (Ord. 29(2005) § 40: Ord. 8(1973) § 20.700) 12-18-8: CHANGE OF USE: A nonconforming use shall not be changed to another nonconforming use unless permission has been granted by the town council. Prior to granting such permission, the Town of Vail Page 3 council shall determine that the proposed use does not substantially differ from the existing nonconforming use in terms of compatibility with the character of the area in which it is located, and the council shall determine that the proposed use does not increase or aggravate the degree of nonconformity existing prior to any such change of use. (Ord. 29(2005) § 40: Ord. 8(1973) § 20.800) 12-18-9: RES TORA TION.- Whenever ION: Whenever a nonconforming use which does not conform with the regulations for the zone district in which it is located, or a nonconforming structure or site improvement which does not conform with the requirements for setbacks, height, density control, building bulk control or site coverage is destroyed by fire or other calamity, by act of God or by the public enemy, its use may be resumed or the structure may be restored, provided the restoration is commenced within one year and diligently pursued to completion. All new construction must conform to the applicable adopted building codes, fire codes and other relevant codes regarding safety and construction which are in effect at the time rebuilding is proposed. (Ord. 29(2005) § 40: Ord. 31(2001) § 12.- Ord. 2:Ord. 39(1982) § 1: Ord. 35(1981) § 1: Ord. 8(1973) § 20.900) V. Next Steps With any recommendation to the Town Council concerning the waterbody setback amendments, staff will include this memo, as amended, to relay to the Town Council the PEC's request that the Town Council instruct staff to initiate a code amendment process regarding Section 12-18. Town of Vail Page 4 1 1► a,o L 0 > 0 N r ' A U � C6 4-, U cn •U O O � � c6 O � O c6 4-J U cn � c/) O Q U . a-�+ N C6 4-J O N on � � N CT U cn _ •� —0 O � O LU !imi r i z t.- ti 7 alt - y 47i�yyy r A vk m O U r ^� W .E n folos �=3 v W � O v O a -J C .0 E U C^6 (1)O 1 > O . 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U C— tiV) cli Q N r N .. a_+ cn E S S E ° — 0 o O Ln 3:z ON an — N N M QJ — r O aJ Z, ;C L-- 4J 0- M v �•� o > p �O Ln C)lZA v N c — O C p O 0 OC ° vi 03 E � N 4J N E •a N Q i N N O LU � N ro N N � O -L o N _I_ ( 4-J Z D N J a • - O N N N O V O r M 0 O N Q O � Q) 0 M N O Z a • - O N N N O 00 N J LL tyo E •� O cn � • X +-+ LU Ln N O Ln N O N 00 V) L CL 0 CL to 0 v rL r_ r_ O +_ N o � 3 E L -L .5 r -4E E o �X +-+ O O N o in Q W N r M 0 00 N fa O o0 Q) 0 M N 00 N J LL tyo E •� O cn � • X +-+ LU Ln N O Ln N O N 00 V) L CL 0 CL to 0 v rL r_ r_ O +_ N o � 3 E L -L .5 r -4E E o �X +-+ O O N o in Q W N O t�A 4—J • W 0 ro v 0 J O _O O U W A ` 4J 4 -JE O U E ±' O U 4—J C6 � O N O � � _ X O � � N LA Ln Ln O t�A 4—J • W 0 ro v 0 J m N N O N m a m .m m -+ 0 LL F- N N O N m a� m .m m 0 N L P LeJ 5w .m 0 .m tj VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: March 14, 2022 ITEM/TOPIC: A request fora recommendation to the Vail Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, to amend the regulations on landscaping to clarify how landscaping beneath decks should be considered and setting forth details in regard thereto. (PEC22-0001) VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: March 14, 2022 ITEM/TOPIC: A request fora recommendation to the Vail Town Council, pursuant to Section 12-3-7, Amendment, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, Title 12 Zoning Regulations, Vail Town Code, and Title 11, Sign Regulations, Vail Town Code to correct out of date references and setting forth details in regard thereto. (PEC22-0003) 2 min. The applicant requests this item be tabled to the March 28, 2022 meeting. VAIL TOWN PLANNING AND ENVIRONMENTAL AGENDA MEMO MEETING DATE: ITEM/TOPIC: February28, 2022 PEC Results ATTACHM ENTS: File Name Description oec results 022822.odf February 28, 2022 PEC Results PLANNING AND ENVIRONMENTAL COMMISSION February 28, 2022, 1:00 PM Town Council Chambers and Virtual on Zoom 75 S. Frontage Road -Vail, Colorado, 81657 Call to Order 1. 1. Register in advance for this webinar: https://us02web.zoom. us/webinar/register/W N_QJ ybkNzgQ2eMGMYxH6FEOg After registering, you will receive a confirmation email containing information about joining the webinar. 1.2. Attendance Executive Session 2.1. C.R.S. Section 24-6-402(4)(b) - to have a conference with the Town Attorney to receive legal advice on specific legal questions regarding proposed code amendments. 3. Main Agenda 3.1. A request for a recommendation to the Vail Town Council for a Prescribed 20 min. Regulation Amendment pursuant to Section 12-3-7 Amendment, Vail Town Code to amend Section 12-14-17 Setback From Watercourse and add a new Section 12-21-17 Riparian Protection and Waterbody Setback Regulations, Vail Town Code, to change the waterbody setbacks, and setting forth details in regard thereto. (PEC21-0043) Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy Planner Roy introduces the item. Peter Wadden is the Watershed Education Coordinator. He gives a presentation recapping changes made since the last meeting based on feedback from the Planning and Environmental Commission (PEC) and public comment. He addresses proposed changes to the corrections process since the last meeting. In the previous meeting, the PEC directed the change from an appeal process to a corrections process. The proposed corrections process will use the same methodology as original process using the Two -Year Flood Line. He outlines the proposed corrections process. He addresses public comment from One Willow Bridge. Wadden gives a diagram of the proposed ordinance and how cross-sections would work in the proposed corrections process. He contrasts this with previously proposed Army Corps Methodology which could create inconsistency in setbacks between neighboring properties. He talks about the Gore Creek Strategic Plan Policy. Existing setbacks have not adequately protected Gore Creek. Perez thanks Staff for making changes. She finds the te)d amendment somewhat deficient. The effective date the PEC recommended is not in the text amendment, it should be in there. Kendra Carberry says it is in the actual ordinance in Section 8. Roy says it will be in the language of the ordinance before Town Council. Perez says we should add it in proposed recommendation. Make it clear to Town Council that that is in our recommendation. Gillette says the date was in the text in the code in another section Roy clarifies those are used in a different manner. Perez addresses the two-year period for rebuilds. She is wondering about getting that language changed. Phillips says changing that language within the building department code would be problematic. Changing that could have considerable consequences within the building code. Gillette says it needs to be a separate process but done concurrently with this process. Perez is concerned that issue was not addressed on the agenda. The original charts showed the number of non -conforming structures but not units, so she is concerned about multi -family properties. The number of properties impacted is higher, do you have that number? Wadden says he has the number of structures. Perez says this wasn't addressed by Town attorneys. We need to know the numbers of other areas around town that will be impacted. Wadden says it's difficult to parse out individual units within a multifamily development. When it redevelops, you're not taking away the property rights of an individual property. Perez says that is not her concern. Her concern is the criteria under which the PEC is asked to make a recommendation. She cites Criteria #2 and #4. We have focused purely on the environmental issues, so she wants to balance the other considerations. The number of properties versus structures ties into development objectives and master plans. This is why she wants the numbers. This is not a personal concern this a community concern. Wadden cites the numbers regarding structures. Perez talks about structures with multiple units. The numbers are magnified in multi -unit buildings. She would like to know the numbers of individual properties impacted. She's in favor of the no -mow zone and concept but feels like we don't yet have a clear picture. Perez cites Section C -1-G, line. She cites the "or/and" language. Wadden says it should be and/or. Perez asks what is the intent? Can we get some clarity on this section? Wadden defers to attorneys on code language. Gillette says with duplexes or townhomes, this ordinance could impact some property owners on a lot but not all of them depending on the location. Wadden says when non -conformity comes into play when it is torn down and rebuilt the whole building is impacted. Perez asks what about cases of fire? What is the intent for language in C -1- G? Matt Mire thinks the language is and/or. It was probably a typo. Perez asks which one is it? Mire assumes it is and/or but will clarify it. Perez says this a text amendment, so we have to nitpick the details. Gillette likes the idea that with the three cross-sections you can get rid of some of the anomalies that would otherwise occur. Do we know if the 2 -year high water mark is correct? With the Ordinary High Water Mark (OHW M) you're not approximating it, you're finding it in the field. With the floodlines we're approximating the high-water mark. What we really want to do is start the setback from the actual edge of the creek. Why don't we look and see what's there? Wadden says the 2 -year floodline is not visible but is present and immutable. Gillette has asked surveyors who says the cross-sections can be more expensive than finding the high-water mark. You're not gaining consistency moving from the high water mark to floodlines. Wadden says he does not agree with that point. Gillette questions how accurate the cross-sections would be as proposed. Wadden clarifies the minimum requirements in the proposed corrections process. Gillette talks about an anomaly at Mill Creek Circle. A situation like that could throw off a cross-section. Wadden says this could be addressed by taking more cross-sections. Kjesbo says you could take additional cross-sections to address those situations. Phillips says last time we agreed on the Two -Year Flood line (TYFL). The modeling is not arbitrary, it provides at least a baseline for the setback. Kjesbo says Staff wants one baseline not either or, then there is a consistent baseline. Gillette asks what if baseline is wrong? Perez says last time we asked for criteria for the corrections process. The current criteria are muddying the waters more. Phillips says the cross-section points are not arbitrary, they are at both property lines and the center. Wadden says staff discussed this point so that property owners could not cluster them where they want. The more data we have the better the model gets. The corrections we receive will also change the line for adjacent property owners. Perez says the property line for the structure is not the same as a unit. This is why we need more fine-tuning. Wadden says it's shared property in the case of multi -family. Perez cites examples of areas she is concerned about. This effects the entire town, it's a good start to the criteria but it's still not finalized because it could be manipulated. Wadden says it is less easily manipulated than the OHW M. Gillette says the correction process will make the town modeling more precise. But if the TYFL is wrong, it's not going to correct for that error. Wadden says it may not be precisely the bank in all cases. It's more important to have a clear baseline for the regulation. Gillette says the corrections process should address that by finding the bank in the field. Wadden says the intent is finding a clear and equitable baseline. Gillette asks what if it is giving you less of a setback? Wadden says the TYFL is more equitable because it doesn't differ based on the width of the creek at that point. The TYFL will always be the same no matter who calculates it. Gillette asks how is there human error identifying the OHW M but not the TYFL? Wadden says there is subjectivity to the OHW M process. Different surveyors can find different results. Environmental Sustainability Director Kristen Bertuglia says staff has discussed some of these concerns. The TYFL is an actual elevation that exists. W hereas with the OHW M there is more subjectivity. The TYFL can't be wrong, the more refined it is the better it is. Gillette wants whichever method protects the creek better. Now you're saying your neighbor can change your lines based on their cross-sections Wadden says corrections should refine the line and improve it. The TYFL is most susceptible to inaccuracy where it is farthest from a cross-section. More cross-sections will make the model more accurate. Phillips asks which process is more arbitrary. Wadden says the OHW M is more subjective. Phillips confirms that experts have said that the TYFL is the more consistent mark. Water flow can change the OHW M measurement. He wants a consistent baseline for citizens to look at. There is a corrections process if they find inconsistencies. Surveyors say year to year the OHW M is all over the place. Wadden says Staff shares that opinion and proposed the TYFL as a more objective baseline. Bruno agrees with Phillips. We have to look at science and what is most consistent and reliable. She appreciates that people have a chance to make corrections. We're heading in the right direction; our creek needs us to act. Gillette clarifies that finding the OHW M is no longer in the proposed corrections process. Bertuglia says the corrections process now uses the same methodology as the TYFL, rather than using the OHW M which is more subjective. The proposed corrections process provides a way to correct it, but it's not using either/or method. The OHW M line moves year to year so we would end up with checkerboard regulations. The variance process allows for people whose property has special circumstances. Gillette clarifies that the TYFL moves just as much as the OHW M year to year? Wadden says there is such imprecision in the OHW M process, the centerline moved by 50 feet between one application and the next. Gillette says there is human error in a cross-section. It's silly to say that one is more accurate than the other. Wadden says there could be error in both processes but that there is more in the OHW M methodology. Kurz cites section D -1-A, where the language is unclear. Wadden says "which" will be added. Gillette asks about the corrections process. Wadden says some individuals might have more wherewithal to go through corrections process with the OHW M as previously proposed. Kurz asks for public comment. Heather Houston says there is a lot of confusion between the TYFL and OHW M. The TYFL relies on a lot of assumptions, it's not fair to say it's more accurate than the OHW M. It relies on specific topographic data and vegetation. There are a lot of inputs in the model that rely on assumptions. It is estimating something that can be found in the field. The two sets of flagging that were presented make that method seem more imprecise than it actually is. She questions the assertion that the two studies show the OHW M is more imprecise. The differences are a few inches in most cases. The OHW M is not arbitrary, there is some interpretation but something within six inches of each other is a pretty good result. The 2 -year floodline model depends on the accuracy of the inputs. The cross-sections are more expensive than a survey. Dick Parker references a memo he sent the PEC. He is a resident of Vail Rowhouses since 1975. He represents the owners on the west half who are in one building. His concern is that the proposed ordinance moves their building into non-compliance, after they just went through the process of the Vail Village Rezoning. We've corrected one thing and we've moved to another. We haven't discussed topography in this discussion. On our site, the aerial measurement is different than the linear measurement on grade. We all have the same interests in mind, but this regulation as proposed would put this building in non-compliance. He asks for consideration of the unintended consequences of regulations as written. Kurz says we only received your memo today. Parker asks are we going to regulate human activity of using the stream, which is a big factor. The city parks are mowed up to the stream. The big factor is consideration, he appreciates Ms. Perez's comments. He is concerned about putting buildings into non-compliance. Perez asks that the memo from today is put into the record. Kjesbo asks about the concerns on non -conformity. Roy says you only need variance if you're looking to expand the portion that is non -conforming. You do not need a variance to improve any other parts of the building. Kjesbo says you don't need a variance unless you're making the non- conformity worse. Perez asks about the example of redoing a patio. Roy says you could maintain a non -conforming patio. Gillette asks about a deck that is non -conforming, could you replace a rotted deck? Roy says removing and replacing it would require a variance. Perez is concerned that replacing a rotted deck for safety would require a variance. The language is lawfully existing, once you become non- conforming you're no longer lawfully existing. Kjesbo says this point has to be clarified. Parker says in the past non -conforming comes to interpretation of the individual person working within the building department. Wadden addresses the property that Mr. Parker is referring to Kjesbo says there must be a definition. You should be able to rebuild something for safety without needing a variance. Perez echoes that concern and cites the existing language. Mike Smith talks about One Willow Bridge. He talks about the mapping lines on this property. He understands that this could be a mapping issue and not the data itself. He appreciates Staffs' consideration of this issue. He still has concerns; it's not assured that the corrections process will address this issue. They are also concerned about the cross-sections process in this case. The variance process also does not provide comfort to property owners. Significant uncertainty remains. The map should be revised to remit the TYFL at 1 Willow Bridge. The 25' setbacks will convert complying buildings to non-conformance and the 1 year timeframe should be extended from one to two years. Dominic Mauriello speaks on behalf of Evergreen Lodge. Last time the PEC said there needs to be a OHW M opportunity for people to question the TYFL. That is no longer in the proposed ordinance, there is no longer a provision for the OHW M. The OHW M does not change year to year. The surveyors he talked to have been comfortable using the Army Corps methodology. The corrections process is not as simple as represented. He cites examples of variable data from past meeting. He says property lines aren't smooth and it's hard to have a smooth line between those. Relying on an engineered model is what's causing the inconsistencies rather than going out and measuring it in the field. What is the new lidar data that's coming? He appreciates that the effective date is not until the end of the year, does that give more time to consider the new lidar data and take some OHW M measurements? Kurz asks for commissioner comments. Phillips agrees with Gillette and Perez regarding the corrections process. Surveyors are not agreeing on this issue across the valley. Perhaps the OHW M could be in the corrections process rather than the latest proposed method. He wants to find a baseline; we can't keep kicking the can down the road. We need to seize the moment, and try to find some continuity with a baseline that still provides the owners an option. If you live on the river you probably have the resources to go through the corrections process. We've sacrificed this creek too long. Gillette says going back to the OHW M in the corrections process solves a lot of these issues. It's a simple process that would happen anyways. He is curious whether the Army Corps methodology eliminates problem with man- made drainages. The concerns about clarifying what can be rebuilt is important. We need more definition before this ordinance goes into effect. He agrees with Perez that we need to see progress on this before we forward a recommendation. It will have ramifications on day one of the effective date. Kjesbo says this will put more properties into non-conformance and we have to have a remedy. If something isn't safe the owners need a way to rebuild. He understands Staff's desire for consistency in the regulation. Maybe we should look at things this summer now that we've settled on an effective date. He agrees with Perez, how does the number of individual structures impact individual units? Gillette asks if each individual owner on the creek was notified? Wadden says in the case of HOAs, they were sent to HOAs. Gillette asks if we should notify every single owner. Pratt says being on the other side, it's easier to notify the HOAs. Perez says there's no one size fits all but has concerns that about the notification. Bellm says we can't email, the county provides addresses not emails. Perez asks about other outreach efforts. Spence says notice requirements are legal requirements that are part of the town code. They are required by law, not subject to review by the PEC. Staff will continue to do this until directed otherwise by Town Council. Pratt is concerned one size doesn't fit all. Everyone in this process has had an example of a non -conformity. It bothers him that they are going down that road. We all agree on the 10' no -mow zone, why not pass a recommendation to Town Council to enact that now. Then we could take time on the setback issue. If 25' is good for Gore Creek, it seems excessive for the tributaries, 20' could be good for those. He agrees the OHW M should be part of the corrections process and also understands Staff's desire for a consistent baseline. Bruno leaves the meeting Perez agrees there haven't been concerns about the no -mow zone. She says the environmental concerns are important, but we need to look at the units affected by non -conformity. She also wants to address the non- conforming time period concurrently, as well as the language for rebuilds. She knows the code section is complex and appreciates Staff's efforts. She says artificial drainageways should be an exclusion to the setback. She thanks staff for the hard work, let's take the time that it needs to get it right. Kurz says the PEC has shown respect for both the public and the process, as well as property owners. By delaying implementation, the PEC has shown concern for the issue. He had hoped for a conclusion before some Commission members terms run out. He is concerned about kicking the can, we potentially weaken the outcome of what we want to do. Because of the input in the process, we've come a long way in getting to the right place, even if we're not quite there yet. He commends Staff and Wadden during this process. Eventually this will be a star in the cap of this community. He asks for a tabling so that comments from today can be incorporated moving today. Gillette asks about the date for term limits Bellm says end of March. 4. Pratt asks if it's possible to split the 10' mow -zone from this and get that approved. Roy says we can't discuss an ongoing application with Town Council unless we get a recommendation today. Perez reminds Wadden about the language changes in C -1-G, D -1-A. Roy says Staff is asking for a vote not a tabling today. Gillette doesn't think that is appropriate. We're supposed to vet legislation, we shouldn't vote until that is complete. The comments from the PEC need to be submitted to the Council. Perez says if you want an up or down vote today, it won't be a good vote. Roy says the PEC comments would be included in report to Council. Gillette says not all of the PEC's concerns from last meeting were included in the latest proposal. Perez says the proposal is still unclear, we're not there yet and would like to see this through to completion. Perez moves to table. Gillette seconds. Kurz asks for further discussion of the motion. Wadden says he won't interrupt the process. If this commission wants to table, he won't interrupt. Pratt says it cannot be discussed with Council until the PEC votes. Phillips would like Council to know where the process is, we're close to finishing this up. Bellm says Council will get the minutes from this meeting. Spence says staff will provide Council with an update. We won't discuss the specifics but will make them aware of the status of the application. He clarifies that Staff can't look for direction from them out of order. The minutes will also be available to them. Gillette clarifies does the creek have gold medal trout status. Wadden says gold medal status is present from Red Sandstone Creek to Eagle River. CDPHE status is not there on the whole creek. Phillips says Gold Medal status was lost on the upper creek in the mid - eighties. Approval of Minutes 4.1. February 14, 2022 PEC Results Perez has a clarification on page two that she asked for the number of units 5. 1 nformational Update 5.1. Aquatic Entomologist, Dave Rees, will provide an update on macro 40 min. invertebrate populations in Gore Creek as surveyed in September 2020. Applicant: Town of Vail Planner: Pete Wadden 6. Adjournment The applications and information about the proposals are available for public inspection during regular office hours at the Town of Vail Community Development Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are approximate, subject to change, and cannot be relied upon to determine at what time the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional information. Please call 711 for sign language interpretation 48 hour prior to meeting time. Community Development Department Published in the Vail Daily February 25, 2022 Ad #: SV7gwbKTSIQ9uC9jCg3x Customer: Shelley Bellm PEC Agenda 3/14/2022 PROOF OF PUBLICATION VAIL DAILY STATE OF COLORADO) SS COUNTY OF EAGLE) I, Mark Wurzer, do solemnly swear that I am Publisher of, says: The Vail Daily, that the same weekly newspaper printed, in whole or in part and published in the County of Eagle, State of Colorado, and has a general circulation therein; that said newspaper has been published continuously and uninterruptedly in said County of Eagle for a period of more than fifty- two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement; that said newspaper has been admitted to the United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said weekly newspaper for the period of 1 insertion; and that the first publication of said notice was in the issue of said newspaper dated 11 Mar 2022 in the issue of said newspaper. Total cost for publication: $82.78 That said newspaper was regularly issued and circulated on those dates. Publi her Subscribed to and sworn to me this date, 03/11/2022 R�0-0-� Notary Public, Eagle County, Colorado My commission expires: August 19, 2024 Lori A WCole NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20204031017 MY COMMISSION EXPIRES September 91h. 2024 See Proof on Next Page PEC Agenda 3/14/2022 - Page 1 of 2 PLANNING AND ENVIRONMENTAL COMMISSION March 14.2422, 1:00 PM Town Council Chambers and Virtual on Zoom 75 S. Frontage Road - Val i, Colorado, 81657 1. Call to Order 1.1. Reggister in advance for thiswebinar: httpsll us02webzoom.us WebanarlfegfsteFWfJ tXLOeRs9 ieoSkwg686.1w After registering, you wall receive a eonfiimat@on email containing information about joining the webinar. 1.2. Attendance 2. Main Agenda 2.1. A request for a final recommendation to the Mail Town Council on a major amendment to Special Development District No. 36, Four Seasons, pursuant to Section 12-9A-10, Amendment Procedures Val Town Cade, to allow far reconfiguration of Existing accommodation units, fractional fee units and dwelling units, andto amend the Employee Housing Plan toocate a portion of the existing onsite emtoyee housing loffsd2e ed at 1 Vail RoadlLots A VVaail VillageFi nnqq setting forth details in regard thereto. (PEC21-0059) 45 ruin. Ap llcant: Four Seasons Resort, represented by AnI ew Sellnau Planner: Jonathan Spence 2.2. A request for a recommendation to the Vail Town Council fora Prescilbed Regulation Amendment pursuant to Section 12 7 Amendrinerit, Vail Town Code to amend Section 12-1417 Setback From Watercourse and add a new Section 12-21-17 Filparaan Protection and Waterbody Setback Re ulations, Vail Town Code, to change the waterbo�y setbacks, and setting forth details in regard thereto. (PEC21-0043) 60 min. Applicant: Town of Vail, represented by Pete Wadden Planner: Greg Roy 2.3. A request for a recommendation to the Will Town Council, pursuant to Section 1237 Amendment, Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code, to amend the regulations on landscaping to clarify how landscaping beneath decks should be considered and setting forth details in re and thereto. (PEC22- 0001) 45 min. Applicant• Town of +Pall Planner: Greg Roy 2.4. A request for a recommendation to the Vail Town Counel, pursuant to Section 1237, Amendment Vail Town Code, for prescribed regulations amendments to Title 14, Development Standards, Vail Town Code Title 12 Zoning Re4ulations, Vail Town Code, and Title 11, Sirgqn Regulations, Vail Town Cade to correct out of date references and setting forth details in regard thereto. (PEC22-0003) 2 min. The ap�acard requests this item be tabled to the March 8,2022meeting. Applicant- Town of Vail Planner: Jonathan Spence 3. Approval of Minutes 3.1. February 28, 2022 PEC Results 4. Adjournment The applications and information about the proposals are available for public inspection dunrig regular office hours at the Town of Vail Cammunrry Dev0opment Department, 75 South Frontage Road. The public is invited to attend the project orientation and the site visits that precede the public hearing in the Town of Vail Community Development Department. Times and order of items are aypioximate, subject to change, and cannot be relie upon to determine at what Lime the Planning and Environmental Commission will consider an item. Please call (970) 479-2138 for additional nfUrnation. Please tail 711 for sign language nterpretation 48 hour prior io sign e-tinngq time- Comrrunily Development Department Published in the Vail Daily March 11,2022 PUBLISHED IN THE VAIL DAILY DN FRIDAY, MARCH 11, 2022. PEC Agenda 3/14/2022 - Page 2 of 2 Ad #: OfJnSpFHEIgalXHmJHSz Customer: Shelley Bellm PEC Notice 031422 PROOF OF PUBLICATION VAIL DAILY STATE OF COLORADO) SS COUNTY OF EAGLE) I, Mark Wurzer, do solemnly swear that I am Publisher of, says: The Vail Daily, that the same weekly newspaper printed, in whole or in part and published in the County of Eagle, State of Colorado, and has a general circulation therein; that said newspaper has been published continuously and uninterruptedly in said County of Eagle for a period of more than fifty- two consecutive weeks next prior to the first publication of the annexed legal notice or advertisement; that said newspaper has been admitted to the United States mails as a periodical under the provisions of the Act of March 3, 1879, or any amendments thereof, and that said newspaper is a weekly newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. That the annexed legal notice or advertisement was published in the regular and entire issue of every number of said weekly newspaper for the period of 1 insertion; and that the first publication of said notice was in the issue of said newspaper dated 25 Feb 2022 in the issue of said newspaper. Total cost for publication: $51.43 That said newspaper was regularly issued and circulated on those dates. Publi her Subscribed to and sworn to me this date, 02/25/2022 R�0-0-� Notary Public, Eagle County, Colorado My commission expires: August 19, 2024 Lori A WCole NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20204031017 MY COMMISSION EXPIRES September 91h. 2024 See Proof on Next Page PEC Notice 031422 - Page 1 of 2 THIS ITEM MAY AFFECT YOUR PROPERTY PUBLIG NOTICE NOTICE IS HEREBY GIVEN that the Plannin4 and Environmental Commission of the Town of Vail will hold a public hearing in accordance with section 1236 Vail Town Code, on March 14 2022 at 1:00 pm in the Town of Vail Municipal Building. Register in advance for this webinar- httpsJAus02web. zoom.uslwebinarlregislerM+IJ_ tXL0e Rs9QKieoSkwg8&1w After registering, you will receive a confirmation email containing information aboutjoining the webinar. A request for a final recommendation to the Vail Town Council on a major amendment to Special Development District No. 36, Four Seasons, Rursuantto Section 12-9A-14 Amendment Procetlures, Vail Town Cade, la allm for reconfiguration of existin accommodation units, fractional fee units and dwellingp units, and to amend the Employee Housing Plan to ocate a GGoartion of the existing onsite em �yee housing oftsrre, located at 1 Vail Roadli-ots M Vail villageFilinqq and settingforth details in regard thereto. [PE&1-0D59] Applicant. Four Seasons Resort, represented by Andrew Sellnau Planner: Jonathan Spence A request for a recomrnendaiion to the Vail Town Council, pursuant to Section 1237, Amendment, Vail Town Code, for prescribed regulations amendments to Trice 14, Development Standards, Val Town Code Title 12 Zoning Regulations, Vail Town Cade, an Title 11, Sign Regulations, Vail Town Cade to correct out of date references and setting forth details in regard thereto. (PEG22-OD03) Applicant. Town of Vail Planner: Jonathan Spence The applications and information about the proposals are available for public inspection (Junin qq office hours at the Town of Vail Community DeveTopmerd_Deppadrtment 75 South Frontage Road. The pub 'c n Irn Iled to attend site visits.1`4ase Gall 970-479 2136 or visb www.vailgovcorN planning for additional information- SL nformation. Sign language interpretation available upon request WIT 24-hour notification, dial 711. Published February 25, 2022 in the Vail Daily PUBLISHED IN THE VAIL DAILY ON FRIDAY, FEBRUARY 25, 2022. PEC Notice 031422 - Page 2 of 2