HomeMy WebLinkAboutArrabelle Valet Parking Appeal - Vail Town Council + r i PG� +.�pl�c�� by Ta�h Wl.�wA�(t/
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MEMOFtANDUM v�G ; (�- O- D
TO: Vail Town Council i
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FROM: Community Development Department
DATE: April 20, 2010 I
SUBJECT: An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Town of
Vail Planning and EnvironmentaM Commission's determination that Section 14-5-
2-K, Valet Parking, Vail Town �ode, does not require that at least 50% of the
required parking spaces provided on site must operate as self-parking, and
setting forth details in regard thereto.
Appellants: Donald Zelkind
Planner: Bill Gibson
I. SUBJECT OF THE APPEAL
The appellant, Donald Zelkind, filed an appeal of the Planning and Environmental
Commission determination that Section 14-5-2-K, Valet Parking, Vail Town Code, does
not require that at least 50% of the nequired parking spaces provided on site must
operate as self-parking, and setting fortt� details in regard thereto.
The appetlant is a residential owner in the Arrabelle building. According to the appellant,
the Arrabelle property manager, Vail Resorts, requires the Arrabelle residential home
owners to exclusively use the building's no-fee valet parking service instead of self-
parking their vehicles in the Arrabelle p�rking structure. The appellant is opposed to the
property manager's requirement that hle use the valet parking service. The appellant
contends that such a requirement is not!,permitted by Section 14-5-2-K, Vail Town Code,
which states: ',
K Valet Parking: Valet parking shall be allowed, but shall not exceed fifl`y percent
(50%) of the required parking o site. Valet parking shall be calculated ufilizing
an eight foot by eighteen foot (8'x 18) parking space for each car (parallel
spaces must be 9 feet x 20 feet). Cars may be parked up to four(4) cars deep in
a valet lot stacked in a mann r in which any vehicles thaf may have to be
temporarily moved by a vale to gain access to another vehicle can be
temporarily parlced in a location �hat does not block public drive/pedestrian aisles
or a designated parlcing space.
StafF has informed the appellant that mpst of his concerns about the parking situation at
the Arrabelle are legal matters betwee� himself, his homeowner's association, and the
property manager; and the Town of Vail has no jurisdiction over such civil matters.
Staff does believe the appellanYs app�al raises questions of interpretation about the
Town's parking regulations that have r�ot been explicitly addressed in the past. While
the appellant is primarily concerned ab ut the parking situation at the Arrabelle property,
Staff beli2ves the questions raised by�this appeal are not limited in scope to only one
specific property. fnstead, Staff believ�s the questions raised by this appeal affect the
parking of every property within the Town of Vail.
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Staff believes the underlying question associated with this appeal is whether the Town
Code requires that vehicles entering a development must be self-parked parked if that
vehicle is not being parked in a space explicitly designed and designated as a valet
parking space for the purposes of ineeting the Town's parking requirements?
Staff believes the Vail Town Code regulates parking to ensure that an adequate number
of vehicle parking spaces are provided to meet the needs of the associated land use.
This is accomplished through the requirement of a minimum number of parking spaces
and parking space design standards. The Town Code does not regulate the operation
or management of private parking spaces or parking lots.
The following items have been attached for reference: Staff memorandum to the
Planning and Environmental Commission (Attachment A), Appellant's presentation to the
Planning and Environmental Commission (Attachment B), Planning and Environmental
Commission hearing results (Attachment C), and the AppellanYs statement (Attachment
D).
II. BACKGROUND
The appellant, Donald Zelkind, filed an appeal of the administrative determination that
Section 14-5-2-K, Valet Parking, Vail Town Code, does not require that at least 50% of
the required parking spaces provided on site must operate as self-parking, and setting
forth details in regard thereto. On February 22, 2010, the Planning and Environmental
Commission voted 5-0-1 (Cartin recusec� to uphoki the administrative determination.
III. REQUIRED ACTION
The Town Council shall uphold, uphold with modifications, or overturn the Planning and
Environmental Commission's determination pursuant to Section 12-3-3, Appeals, Vail
Town Code.
IV. STAFF RECOMMENDATION
The Community Development Department recommends the Town Council upholds the
Planning and Environmental Commission's determination that Section 14-5-2-K, Valet
Parking, Vail Town Code, does not require that at least 50% of the required parking
spaces provided on site must operate as self-parking, and setting forth details in regard
thereto.
The Community Development Department recommends the Town Council makes the
following findings of fact:
"Based upon a review of the Staff's February 22, 2010, memorandum to the Planning
and Environmenta! Commission and the evidence and testimony presented, the Town
Coucil finds:
• The Town of Vail does not regulate, interpret, enforce, or resolve disputes
concerning privafe covenants, party wall agreements, home owner
association rules, or other simil� civil agreements. Any issues exclusively
related to these civil)n�tter5 are not g�rmane to this appeal.
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• The Vail Town Code regulate�parking to ensure that an adequafe number of
vehicle parking spaces are pr�vided to meet the needs of the associated land
use. This is accomplished through the requirement of a minimum number of
parking spaces and parking pace design standards_ The Town Code does
not regulate the operation �r management of private parking spaces or
parking lots. ',
• The Town Code assumes t I e number of spaces provided for a land use
addresses the collective park�ng needs of each user group of that land uses
(owners, employees, custom rs, guests, etc.). The Town Code does not
assign or designate which s ecific parking space in a private parking lot is
allocated to which user group or individual user. In the case of a multiple-use
building, the Town Code doe not assign or designate which specific parking
spaces in a private parking lo are allocated to the individual land uses of the
building. The operation of t e private parking lot is the responsibility of the
property owner or manager.
• Chapter 12-10, Off Streef Pa�king and Loading, Vail Town Code, prescribes
the parking requir�ments of�he Town's Zoning Regu/afions. Chapter 12-10,
Off Street Paricing and Loadirhg, Vail Town Code, does not address the valet
parking or self-parking of veh�C/es.
• Chapter 14-5, Parl�ing Lot a d Parking Structure Design Standards for All
Use, Vail Town Code, pre cribes the design standards of the Town's
Development Standards.
• Section 14-2-1, Definitions o� Words and Terms, the term "Valet Parking" is
defined as `A service provide�i with or without a fee where vehicle is dropped
at a designated location anc� an employee drives said vehicle to a parking
space.'
• Section 14-5-2-K, Valet Pa ing, Vail Town Code states that `Valet parking
shall be allowed, but shall ot exceed fifty percent (50%) of the required
parking on site. Valet parlci shall be calculated ufilizing an eight foot by
eighfeen foot(8'x 18) parkin space for each car(parallel spaces must be 9
feet x 20 feet). Cars may bel parlced up to four (4) cars deep in a valet lot
stacked in a manner in whic any vehicles fhaf may have to be temporarily
moved by a valet to gain acc ss to another vehicle can be temporarily parked
in a location thaf does not bl ck public drive/pedestrian ais/es or a designated
parking space.'
The Community Development Depart ent recommends the Town Council makes the
following conclusions:
"Based upon a review of the taff's February 22, 2010, memorandum to the
Planning and Environmental Commission, the evidence and testimony
presented, and the Commis ion's finding of facts, the Planning and
Environmenta!Commission conc udes:
The Vail Town Code does not �require that vehicles accessing a development
must be self-parked if that vehicle is nof being parked in a space explicitly
designed and designated as a v!alet parking space for the purposes of ineeting
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the Town's parking requirements.
Therefore, the Planning and Environmental Commission's determination that
Section 14-5-2-K, Valet Parking, Vai! Town Code, does not require that at least
50%of the required parking spaces provided on site must operate as self-parking
meets the standards and conditions imposed by the requirements of the Vail
Town Code."
The Community Development Department recommends the Town Council makes the
following motion:
"Based upon a review of the Staff's February 22, 2010, memorandum to the
Pianning and Environmental Commission, the evidence and testimony
presented, and the �nding of facts, the Town Council upholds fhe Planning and
Environmental Commission determination that Section 14-5-2-K, Valet Parking,
Vail Town Code, does not require that at least 50% of the required parking
spaces provided on site must operafe as self-parking, based upon the conclusion
that the Commission's determination meefs the standards and conditions
imposed by the requirements of fhe Vail Town Code."
V. ATTACHMENTS
A. February 22, 2010 Staff memorandum to the PEC
B. February 22, 2010 AppellanYs Presentation to the PEC
C. February 22, 2010 PEC results
D. Appellant's Statement
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' Vail Town Council Alttachment: A �
, �.,
MEMOR� NDUM �
TO: Planning and Environmental Com;`nission
FROM: Community Development Departrr�ent
DATE: February 22, 2010. I
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SUBJECT: An appeal, pursuant to Section 1�-3-3, Appeals, Vail Town Code, of the Town of
� Vail Administrator's�determinatioh that Section 14-5-2-K, Valet Parking, Vail
Town Code, does not require th�t at least 50% of the required parking spaces
provided on site must operate asl,self-parking, and setting forth details in regard
thereta
Appellant: Donald Zelkind �
Planner: Bill Gibson
I. SUBJECT OF THE APPEAL
The appellant, Donald Zelkind, has filed an appeal of the administrative determination
that Section 14-5-2-K, Valet Parking, Vail Town Code, does not require that at least 50%
of the required parking spaces provided �n site must operate as self-parking, and setting
fo�th details in regard thereto. 'i
The appellant is a residential owner in th�Arrabelle building. According to the appellant,
the Arrabelle property manager, Vail R sorts, requires the Arrabelle residential home
owners to exclusively use the building' no-fee valet parking service instead of self-
parking their vehicles in the Arrabelle pa ing structure. The appellant is opposed to the
property manager's requirement that he'�use the valet parking service. The appellant
contends that such a requirement is not �ermitted by Section 14-5-2-K, Vail Town Code,
which states: '
K. Valet Parking: Va/ef parking sh�ll be allowed, but shall not exceed fifty percenf
(50%) of the required parking on;site. Valef parking shall be cakulated utilizing
an eight foot by eighteen foot ('8'x 98) parking space for each car (parallel
spaces musf be 9 feet x 20 feet). jCars may be parked up to four(4) cars deep in
a valet lot sfacked in a manne� in which any vehicles that may have to be
temporarily moved by a valet ,to gain access to another vehicle can be
temporarily parked in a location tl�at does not block public drive/pedestrian ais/es
or a designated parking space_ '�, �
Staff has informed the appellant that most of his concerns about the parking situation at
the Ar�abel{e are legal matters between himself, his homeowners association, and the
property manager, t�hd the Town of Vail has no jurisdiction over such civil matters.
,
Staff does believe the appellant's appe�l raises questions of interpretation about the
. Town's parking regulations that have nok been explicitly addressed in the past. While
the appellant is primarily concemed abou�the parking situation at the Arrabelle property,
� Staff believes the questions raised by this appeal are not limited in scope to only one
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specific property. Instead, Staff believes the questions raised by this appeal affect the
parking of every property within the Town of Vail.
Staff believes the underlying question associated of this appeal is whether the Town
Code requires that vehicles entering a development must be self-parked parked if that
vehicle is not being parked in a space explicitly designed and designated as a valet
parking space for the purposes of ineeting the Town's parking requirements?
Staff believes the Vail Town Code regulates parking to ensure that an adequate number
of vehicle parking spaces are provided to meet tfie needs of the associated land use.
This is accomplished through the requirement of a minimum number of parking spaces
and parking space design standards. The Town Code does not regulate the operation
or management of private parking spaces or parking lots.
The appellant's statement has been attached for reference (Attachment A).
II. BACKGROUND
From the Town's adoption of its first zoning code in 1973 until 1999, the term "valet
parking was only used in Section 18.52.080 of the Vail Town Code. Valet parking was
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only identified in the Zoning Regulations as a means of waiving the design standards for
parking lot drive aisles:
"Aisles:Aisles�of adequate width for convenient and easy access to each parking
space shall be provided, atfording unobstructed vehicular passage between each
parking space and one or more accessways. This requirement may be waived
only during such times as va/et parking is operated in lieu of self-parking."
Note that the Town Code did not require property owners or managers to valet park
vehicles entering the development site, nor did it require those individuals entering the
development site to self-park their vehicles. The code simply states that at °such times
as valet parking is operated"the Town's requirements for clear parking lot aisles could
be waived.
Based upon these provisions of the previous edition of the Vail Town Code, throughout
tiie years, developers were allowed to meet the parking requirements for additions to
existing buildings by agreeing to valet park the additional vehicles in their existing
parking lots rather than physically expanding the parking lot.
In the early 1990's the Town of Vail hired a consultant to assess the Town's Zoning
Regulations and make recommendation to improve those regulations. .In October 1991,
a Development Code Revision Report was completed. On pages 150-151 of this report,
the consultant addressed the above listed parking lot drive aisle design standards as
follows: . �
Issue: The requirement for°clear unobstructed access"to each off-street parking
space may be waived at the times valet parking is ope�ated in lieu of self parking.
This provision allows for the very e�cient use of parking facilities. However, the
issue is whether there should be a maximum percenfage of required parking
spaces than can be valet spaces.
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Alternatives: Allowing valet parking spaces to satisfy parking requirements
means the Town must accept a derfain amount of risk— that the ownedoperator
does in fact provide valet serviCe to ensure all required parking is provided.
Establishing a maximum percen�age of valet spaces serves to minimize the
Town's risk. A maximum limit w1�1 a/so ensure that a certain number of spaces �
are directly accessible to the user. Limiting valet spaces to 25% of the total
parking requirement is a reasonaib/e percentage that will provide the Town with
' some assurance and a/so allow smme flexibility to the operator. .
Note that this report did not recommend 'requiring property owners or managers to valet
• park vehicles entering the developmen� site, nor did it recommend requiring those
individuals entering the development site to self-park their vehicles.
This report addressed valet parking in �he context of vehicles being allowed to block �
parking lot drive aisles. By placing a limit on the number of vehicles allowed to be valet
. parked in the parking lot drive aisles, th� Town would be assured some portion of the
required parking spaces would remain a�cessible to other users (whether their vehictes
were parked by a valet or by the vehicl� owner) and continue to meet the prescribed
parking requirement. ',
In 1999, the Town of Vail adopted the D�velopment Standards Handbook (Title 14, Vail
Town Code) through Ordinance 25, Series of 1999. The Development Standards
Handbook was the result of a process named the Development Review Improvement
Process�(DRIP) which was intended to clarify the Town's development standards and to
consolidate the development review proCess. According to a 1999 Staff memorandum
to the Planning and Environmental Comrrnission:
°!n most cases, the Develvpment Standards are clarification of existing
regulations and standards used,by the various Town of Vail departments in
development review. However, in some cases, the Development Standards are
actually/ess restrictive than curre�tt regulations and standards. The following are
sfandards that have been rel�xed and/or changed by the Development
Sfandards Handbook: '
4. Parking—the Development Sta�dards include a provision for valet parking."
Other than this one-sentence statemen�, there is no additional discussion in the staff
memorandums, Planning and Environmiental Commission hearings minutes, or Town �
Council hearings minutes concerning the 1999 adopted provisions for valet parking:
"Valet Parking: Valet parking shall be allowed, but shall not exceed 50% of the
required parking on-site. Valet ,parking shall be calculated utilizing a 8' x 18'
parking space for each car (parallel spaces must be 9' x 20'). Cars may be
parked tandem in a valet lot"
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This code amendment established desigr� standards for the construction of valet parking
spaces. '
In 2005, the Town of Vail adopted °cor`rections and clarifications to the Town Code"
through Ordinance 29, Series of 2005. This ordinance adopted the first Vail Town Code
definition of valet parking as .
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"A se►vice provided with or without fee where vehicle is dropped at a designated
location and an employee drives said vehicle to a parking space."
This ordinance did not adopt any regulatory or policy changes related to valet parking.
In 2007, the Town of Vail adopted another housekeeping ordinance to further clarify the
Town Code. Ordinance 28, Series of 2007, amended the valet parking requirements of
the Vail Town Code as follows:
"K Valet Parking: Yalet parking shall be allowed, but shall not exceed fifty percent
(50%) of fhe required parking on site. Valet parking shall be calculated utilizing an eight
foot by eighteen foot (8'x 18)parking space for each car (parallel spaces must be 9'x
20). Cars may be parked�r�up to 4 cars deep in a valet lot stacked in a manher in
wltic/: any vel:icles tltat may liave to be temporarily nzvved by a valet to gain access to
anot/:er velticle can be temporarily parked in a location tl:at does not block public
drive/pedestrian aisles or a designated pnrking space."
These provisions are the currently adopted code requirements addressing valet parking.
According to the 2007 Staff memorandums to the Planning and Environmental
Commission, the purpose of these amendments were to:
"In 94-5-2, Other Requirements, language was added fo fhe valet parking
subsecfion in order to clarify limitations on tandem parking."
This ordinance did not adopt any other regulatory or policy changes related to valet
parking.
I11. ADMINISTRATOR'S DETERMINATION
Throughout the history of the Vail Town Code, the Town's parking requirements have
addressed how many parking spaces must be provided o,n a development site for a
given land use and how those spaces must be designed and constructed. The Town
Code does not regulate the operation or management of private parking lots. The Town
Code assumes the number of parking spaces required by the code for a land use
address the collective parking needs of each user group of that land uses (owners,
employees, customers, guests, etc.).
The Town Code does not assign o� designate specific parking spaces in a private
parking lot to any user group or individual user. In the case of a multiple-use building,
the Town Code does not assign or designate specific parking spaces in a private parking
lot to any individual land use of the building. The operation and management of private
parking lots is the responsibility of the property owner or manager.
Staff betieves the current Town Code valet parking regulations were drafted in the
context of vehicles previously being allowed to block parking lot drive aisles. By placing
a limit on the numbe� of vehicles allowed to be valet parked in the parking lot drive
aisles, the Town would be assured some portion of the required parking would remain
accessible to other users, whether their vehicles were parked by a valet or by the vehicle
owner themselves.
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Staff believes the provisions of Sectio� 145-2-K, Valet Parking, Vail Town Code,
regulate the design and construction df valet parking spaces for the purposes of
calculating the number of parking spacies provided to meet the minimum number of
parking spaces required for a land use. Staff does not believe the provisions of 145-2-
K, Valet Parking, explicitly regulate the operation of individual parking spaces in a private
parking lot.
Staff does not believe Section14-5-2-K, Valet Parking, Vail Town Code, limits a property
owner or manager to only providing vale�t services to those users whose vehicle will be
parking in an 8' x 14'tandem parking space. Staff does not believe this section prevents
a property owner or manager from providing valet parking services to other users of the
building.
' Staff does not believe the intent of the Tpwn's parking regulations are to discourage the
optimized use of private parking lots or td discourage property owners or managers from
providing,enhanced customer services through the operation of valet parking.
Therefore, Staff has determined that Section 14-5-2-K, Valet Parking, Vail Town Code,
does not require that at least 50% of the',required parking spaces provided on site must
operate as self-parking.
Staff does not believe the appellant ha� demonstrated how Staff's determination does
not meet the intent of the Town's parkiing regulations (i.e. parking requirements and
design standards). � • �
Should the appellant prevail in this appeal and the Planning and Environmental
Commission determines that at least 50% of a development's private parking shall
operate as self-par{cing, Staff will begin code enforcement proceeding against all
residential, commercial, and multiple u$e properties providing valet services to more
than fifty percent (50%) of their required parking users.
Should the appellant prevai� in this appeal and the Planning and Environmental
Commission determines that at least 50% of a development's private parking shall
operate as self-parfcing; this interpretation will not preclude the Arrabelle's property
management from continuing to limit Mr. Zelkind's access to onljr the valet service half of
the Arrabelle's parking garage. '
IV. PLANNING AND ENVIRONMENTAL CQMMISSION JURISDICTION
Pursuant to Sub-section 12-3-3B-1, Appeal of Administrative Actions; Authority, Vail
Town Code, the Planning and Environmental Commission has the authority to hear and
decide appeals from any decision, determination or interpretation by any Town of Vail
administrative official with respect to the provisions, standards, and procedures of the
Title 12, Zoning Regulations, Vail Town Code.
V. PROCEDURAL CRITERIA FOR APPEALS
Pursuant to Sub-sections 12-3-3B-2 and 12-3-3B-3, Appeal of Administrative Actions;
Initiation and Procedures, Vail Town Code, there are th�ee basic criteria for an appeal:
A) standing of the appellant; B) adequacy of the notice of appeal; and C}timeliness of
the notice of appeal.
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A) Standinq of the Appeilant
Staff has determined that the applicant has standing as an "aggrieved or
adversely affected person" to file an appeal of the subject administrative
determination.
B) Adequacy of the Notice of the Appeal
The application for this appeal has been determined to be complete by the
Community Development Department.
C) Timeliness of the Notice of Appeal
The applicant filed an appeal meeting the requirements of Sub-section 12-3-3B- •
3, Procedures, Vail Town Code.
VI. APPLICABLE REGULATIONS OF THE TOWN CODE
CHAPTER 12-10, OFF STREET PARKING AND LOADING (in part)
N/A(valet parking is not addressed by Chapter 12-10 of the Zoning Regulations)
CHAPTER 14-10. DESIGN REVIEW STANDARDS AND GUIDELINES (in part)
Chapter 14-1:Adminisfration
94-1-1: PURPOSEAND INTENT.� �
It is the purpose of these rules, regulations, and standards fo ensure fhe general
healfh, safety, and welfare of the community. These rules, regulations, and
standards are intended to ensure safe and effcient developmenf within fhe town
of Vail for pedestrians, vehicular traffic, emergency response traffic, and the
community at large. The developmenf standards will help protect property Values,
ensure the aesthetic quality of the community and ensure adequate development
of property within the town of VaiL
14-1-6:APPEALS:
Appeals from decisions made concerning the development standards shall be in
accordance with tifle 12, chapfer 3 of this code.
Chapter 14-2, Definitions
� 142-1: DEFINITIONS OF WORDS AND TERMS:
VALET PARKING: A service provided wifh or without a fee where vehicle is
dropped at a designated location and an emp/oyee drives said vehicle to a
parking space. �
Chapter 14-5: Parking Lot and Parking Structure Design Standards for All Uses (in pa►t)
14-5-9: MINIMUM STANDARDS: (in part)
This section (table 5) specifies the parking lot sfandards for all uses excluding
residential uses under three (3) units and including, buf not limited to,
commercial, retail, office, restaurant, institutional, hotel, accommodation, and
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multiple-family development. These standards are subjecf to all conditions and
exceptions described herein. These standards shall be considered the minimum
standards. When two (2) or more sfandards conflict the more restrictive standard
shal!apply.
94-5-2: OTHER REQUIREMENTS: {in part)
K. Valet Parking: Valet parking shall be allowed, but shaU not exceed fifty percent
(50%) of the required parking on site. Valet parking shall be calculated utilizing
an eight foof by eighteen foot (8'x 18) parking space for each car (parallel
spaces must be 9 feet x 20 feet). Cars ma}i be parked up to four(4) cars deep in
a valet lot stacked in a manner in which any vehicles that may have to be
temporarily moved by a va/et to gain access fo another vehicle can be
temporarily parked in a location that does not block public drive/pedestrian ais/es
or a designated parking space. .
VII. REQUIRED ACTION
The Planning and Environmental Commission shall uphold, overturn, or modify the
administrative defermination that Section 14-5-2-K, Valet Parking, Vail Town Code, does
not require that at least 50% of the required parking spaces provided on site must .
operate as self-parking, and setting forth details in regard thereto.
Sub-section 12-3-3B-5, Findings, Vail Town Code, details the requirements for action by
the Planning end Environmental Commission as follows:
'The Planning and Environmental Commission shall on all appea/s make specific �
findings of fact based directly on the particular evidence presented fo it. These
findings of facf musf support conclusions that the standards and conditions
imposed by fhe requirements of this Title have or have not been met."
VI1L STAFF RECOMMENDATION
The Community Development Department recommends the Planning and Environmental
� Commission upholds the administrative determination that Section 14-5-2-K; Valet
Parking, Vail Town Code, does not require that at least 50% of the required parking
spaces provided on site must operate as self-parking, and setting forth details in regard
thereto. .
The Community Development Department recommends the Planning and Environmental
Commission make the following findings of fact:
Based upon a review of ffie Staff's February 22, 2090, memorandum fo the Planning
and Environmenta! Commission and the evidence and testimony presented, the
Planning and Environmenfal Commission finds:
• The Town of Vail does not regulate, interpret, enforce, or resolve disputes
concerning private covenants, party wall agreements, home owner �,
association rules, or other similar civil agreements. Any issues exclusively
related to these civil matters are not germane to fhis appeaL
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• The Vail Town Code regulates parking to ensure thaf an adequate number of
vehicle parking spaces are provided to meef fhe needs of the associated land
use. This is accompiished through the requirement of a minimum num6er of
parking spaces and parking space design standards. The Town Code does
not regulate the operafion or management of private parking spaces or
parking lots.
• The Town Code assumes fhe number of spaces provided for a land use
addresses the collective parking needs of each user group of that land uses
(owners, employees, customers, guests, etc.). The Town Code does not
assign or designate which speci�c parking space in a private parking lot is
allocated fo which user group or individual user. .In the case of a multiple-use
building, the Town Code does not assign or designate which specifrc parking
spaces in a private parking lot are al/ocated to the individual land uses of tf►e
building. The operation of the private parking lot is the responsibility of the
property owner or manager. �.
• Chapfer 12-10, Otf Street Parking and Loading, Vail Town Code, prescribes
the parking requirements of the Town's Zoning Regulatioris. Chapter 12-10,
Off Sfreet Parking and Loading, .Vail Town Code, does not address the valet
parking or self parking of vef►icles.
• Chapter 14-5, Parking Lot and Parking S�ructure Design Standards for All
Use, Vail Town Code, prescribes the design standards of the Town's
Developmenf Standards.
• Section 14=2-1, Definitions of Words and Terms, the term rcValet Parking" is
defined as `A service provided with or without a fee where vehicle is dropped
at a designated location and an employee drives said vehicle to a parking
space.' �
• Section 94-5-2-K, Valet Parking, Vail Town Code states fhat 'Valet parking
shall be allowed, but shall not exceed fiffy percent (50%) of the required
parking on site. Valet parking shall be calculated utilizing an eight foot by
eighfeen foot (8'x 18�parking space for each car(parallel spaces must be 9
feet x 20 feet). Cars may be parked up fo four (4) cars deep in a va/ef /ot
stacked in a manner in which any vehicies fhaf may have to be temporarily
moved by a valef to gain access to another vehicle can be temporarily parked
in a location that does not block public drive/pedestrian aisles or a designated
parking space.'
The Community Development Department recommends the Planning and
Environmental Commission make the following conclusions:
"Based upon a review of the Staff's February 22, 2010, memorandum to the
Planning and Environmental Commission, the evidence and testimony
presented, and the Commission's finding of facts, the Planning and
Environmental Commission concludes:
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� �
The Vail Town Code does not require that vehicles accessing a development �
must be self-parked if fhat vehicle is not being parked in a space explicitly
designed and designated as a valef parking space for fhe purposes of ineeting
the Town's parking requirements_
Therefore, the Administrator's determination that Section 14-5-2-K, Valef
Parking, Vail Town Code, does not require fhat at /east 50% of the required
parking spaces provided on sife must operate as self-parking meets the
. standards and conditions imposed by the requirements of fhe Vail Town Code. �
�
The Community Development Department recommends the Planning and Environmental ';
Commission make the following motion:
"Based upon a review of the Staff's February 22, 2010, memorandum to the
Planning and Environmenta! Commission, tfie evidence and testimony
presented, and the Commission's frnding of facts, the Planning and
Environmental Commission upholds the Town of Vail Adminisfrator's
determination that Section 14-5-2-K, Valet Parking, .Vail Town Code, does not �
. require that at /easf 50% of the required parking spaces provided on site musf
operate as self-parking, based upon the conclusion that the Administrafor's
determination meets fhe standards and conditions imposed by the requirements
of the Vail Town Code_"
IX. ATTACHMENTS
A. AppellanYs statement
;
'
9
. _ . . ._�_......__ .� __ _ .- -- - ....� :_. .__ _. �
L(02/18/2010)George Ruther-Re:Arrabelle parking structure Page 1;
. ---- -__ _.. _ _ . _---.. _ . _........_. .._.
__ _.. .__._. .__.. .._... __.,. _. _
� Attachment A
From: George Ruther �
To: donald zelkind
Date: 1/6/2010 3:18 PM
Subject: Re: Arrabelle parking structure
Thanks Don. I will get a response back to you shortly. I will put a place holder for this appeal item on
� the 2//22 PEC agenda.
Again, we'll be in touch. . _ . ,
George Ruther, AICP
Director of Community Development
Town of Vail
75 South Frontage Road � .
Vail, Colorado 81658
(970)479-2145 (o)
� (970)479-2452(� ;:.:,` .;
(970) 376-2675(c) '�
»> cJonald zelkind <donzelkindl@gmail.com> 1/6/2010 1:41 PM »> - -
� George, ' �
Happy New Year to you again. I am anxious to meet with the individual who �
had a similar hip injury to plot my course over the next few months.
With regard to the parking issue at the Arrabelle,I am concerned about the �
fact that VR has forced the homeowners to employ the valet parking service
exclusively.This is contrary to the representations made in our promotional
materials, our sales packet, and the clarifications on the parking status
published to homeowners and realtors issued from the VR legal department. I
gather from previous conversations with you that VR made representations to
the Town of Vail during the approval process that indicated that we would
have designated self parking spaces as well.
In addition, our interpretation the Town ordinance § 14-5-2 K requires '
reading in context several other provisions as follows:
*§ 14-5-2 K**Valet Parking: *
*Valet parking shall be allowed, but sha11 not exceed fifty percent(50%)of
the** *
*required parking on site.Valet parking shall be calculated utilizing an
eight foot by eighteen foot** *
*(8'x 18') parking space for each car(parallel spaces must be 9 feet x 20
feet). Cars may be** *
*parked up to four(4) cars deep in a valet lot stacked in a manner in which
any vehicles that may** *
_ _ _
-� .
: (07J18/2010)George Ruther .Re Arrabelle parking sEructure �_ . _ ,_ _ Page 2
*have to be temporarily moved by a valet to gain access to another vehicle
can be femporarily** *
*parked in a location that does not block public drive/pedestrian aisles or
a designated parking** *
*space.* :
*
*
*145-1: MINIMUM STANDARDS:** *
*This section (table 5) specifies the parking lot standards for all uses.
excluding residential uses** *
*under three(3) units and including, but not limited to,commercial, -
retail,office, restaurant,** *
*institutional, hotel, accommodation, and multiple-family development.These
standards are.subject** *
*to all conditions and exceptions described herein. **These standards shall
be considered the** *
*minimum standards.When two(2).or more standards conflict the more .
restrictive standard shall** *
*aPP�Y*
� �
*
*14-1-1: PURPOSE AND INTENT:** *
*It is the purpose of these rules, regulations, and standards to ensure the
general health, safety,** *
*and welfare of the community.These rules, regulations, and standards are
intended to ensure safe** * �
*and efficient development within the town of Vail for pedestrians, **vehicular
traffic,** emergency** * �
*response traffic, and the community at large.The development standards
will help protect property** *
*values, ensure the aesthetic quality of the community and ensure adequate
development of** *
*property within the town of V��. (Ord. Z9(2005)§�6�`
*
*
* **14-2-1: DEFlNITIONS OF WORDS AND TERMS:** *
*
_ _ _
_ .. _ . ....---._ - ---_ _ .... __... .......... .____. ._..._ .._ _..
,
�'(02/18/2010)George Ruther Re:Arrabeile parking structure _ _ __ _____ .._ _ _, ._ _._._ .___., __ _ _.___. Page 3:
*
*VALET PARKING: A service** provided with or without a fee where vehicle is
dropped at a** *
*designated location and an employee drives said vehicle to a parking space.
** *
To the extent the language of§ 14-5-2 K Valet Parking lends itself to two
interpretations and two standards, § 14-5-1 requires the imposition of the
more restrictive standard. I believe controlling the valet service is more
restrictive that merely controlling valet physical parking configuration. g
14-1-1 states that the purpose and intent of the statute and specifically
recites vehicular tra�c, not just parking structure configurations. �
Lastly, and most importantly, if there is any dispute as to the definition
of the term 'valet parking' §.14-2-1 specifically defines'valet parking' as
a service*not*a physical configuration within a parking structure. When
the drafters of the ordinance provide a definition, I suggest that
definition should control the interpretation of the ordinance. � .�
The PEC meeting on February 22nd would be a particularly desirable date .
because my fellow Board Member, and Vice President,John Lichtenegger will
also be in Vail and able to participate at the hearing.
Thank you in advance for your cooperation.
Sincerely,
Don Zelkind
President,Arrabelle homeowner HOA ..
On Wed,Jan 6, 2010 at 6:00 AM, George Ruther <grutherCa�vailgov.com> wrote: �
> Good Morning Don-
>
> Happy New Year. Glad to hear that your doing better. Last time we spoke it
> appeared you had seen better days.
>
>The group we need to present this issue to is the Planning and
> Environmental Commission. The process in doing so is easy. Simply write me
> a letter outling y�ur concerns and issues in the way the parking is being � .
> handled at Arrabelle and your interpretation of the applicable zoning
> regulations. Upon receipt of your letter I will respond back to you in
>writing outlining the staffs interpretation and our respectful
> disagreement.With each of our positions stated we will have created and
. > established the basis for an appeal of a staff interpretation, as outlined
> in Chapter 12-3 of the Vail Town Code.
>
> With�his basis in place I am then able to schedule a hearing with the PEC.
> Due to public notice requirements we would likely be at the PEC meeting on
> February 22nd.
>
> Please do not hesitate to call or write with questions.
> . .
� 02/18/2010 Geor e R _ . . .. . . _ ._ _. . . . _.
_ .._ _ .
, ( , _ ) g. _uther_Re:Arrabelle parking structure _ ___ ^__ _ _ __ _ Page 4
>Thanks again. -
�
> Powered by Intellisync �
>
> From: donald zelkind <donzelkindl(a�qmaii.com>
> Date: 12/31/2009 1:27 PM
>To: George Ruther <GRutherC�vailqov.com>
> CC: Lenore Sherman <sherm335(a�aol.com>;Phil McCabe <mccabeCo�innonfifth.com>,John
> Lichtenegger<]ohnCa�semolawfirm.com>
> Subject: Arrabel�e parking structure
� .
> Hi George,
>
> Now that I can walk pretly wefl with one crutch,I would like to make a
> short presentation to you and whomever you think is a appropriate on our
> reading of the Town of Vail ordinance concerning valet parking.
>
> Please let me know what time next year would be most convenient. :,:._
> -
> Happy New Year to you and yours,
> �
> Don Zelkind
>
. . �
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Current status Arrabelle parking structure
• Two levels G l and G2
� Approximately 300 spaces
� 94 -_HOA, 100- Arrabelle Club, l 06-
remainder hotel , employees, and ,
retail
� HOA, Arrabelle Club, Hotel 100%
Valet
' BAC KG RO U N D
- -� The representations made to the public and
_ Ai�rabelle purchasers vs. Closing` '
_ Documents =�
- • Promotional literature_
:• Representations to the Town of Vail
� Initial sales`contract
_ • Clarification from VR�legal department `°°
:• Town of Vail Ordinance
•We have filed a lawsuit
in F ederal C ourt
�We would like the
- su ort of the Town of �_
pp
Vail
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HOTEL SERVICES & AMEI�IITIES AVAILABLE TO
RESIDENGE OWNERS 8e THEIR GUESTS
T�1C.111'dIX'A:Y HCiCI\YIL Ul�f'�f ti:,(�'tG^..5 All(7 ' �J:JS:NE55 CcNTER ' A FEE WILL APYLY TO THE FOLLOWIHG
"1F,:�I::�:S !C !'IC�IC! �Ui'4lS r'!1?: I('.S:(�C'iCC � A��AhYU SPP.:.YD FiTNC55 CE`1TEk SCRVICES:
���^lGl'c. GOrtr h71P,1 Y`..M1'lCPS 211d 3�'tGfliiiC> � RooROP PooL AKG HOT TU85
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"td�iCJf�:ti hour and a�•aiiab:li:y ancl may Cc HO'EL SEnVICES?L1:�5 OIFECT DInL � �A���MAIp SESV:CC P.NO hGJI'�ONAL
Pd�O(lillJ{}'.�^II:Sf�{�;;pi���j���g{p�jry;�_ ;N wNU O�T `i0U5EKEEPif.G SERVICES A':AILABLE
• HO1EL MESSAGE SEN�'ICE U?Of:qEOVEST
• G<.S�E TV f.CCc55 ' �JNDRY AfJO DRV CLEA.NING
EAYICES ANO AMENITIES 1!'�CLUOEO IN • PqCKAGE AND MAIl SEFVI�E
• WIFE!E55�HIGY-51'EEU IYTERNFT
OnoOMIf1�uM ASSOCIATION D�lES: p�CE55 • CC�ftU1NAT10N OF H�SYITA�ITY AVD
VALET PAFKING • ACCE55 TO 24-HOL'R MAiYTEni.NGE CAT=RE�EvENTS WITH11�!RESIUENCE
OR F:U7E_
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• FLCn15T AN�PLAN�CA2E
C�NCIER+E SE4VIGE5 AMENITIES PROVIDEO 6Y iHE HOTEI: • OOG Y:ALKING(FOR OWNEP.S CYLT)
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• L09BY pqp PER��.^,YA�Pp.OPEHTY W'fTi11N
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• AR'P.ES SKI CcCK NEaICENCE,E.G.,T.PI'I.IANCES
SPACES FOR 4-,5-AN�6-HEOROOM ' Z4-MOJR ROCM SEY.VIGE
4
•What did Vail Resorts
re resent to the Town
p
of Vail in the -
A roval Process`?
pp
_ t.�
� Initial contract language �:._� -- � �
: Valet Service. The Airspace Lot Owner,
acknowledges and agrees that the Project Owner,
in connection with the operation of the Project ,
` Improvements, mav, but is not obliqated to,'offer ,
. valet parking from time to time�
m ����� ��
� � ��
'. � - � ���� � �
� Y To the extent_such valet service is rovidec���������'��
_` . � p � ��
by the Project Owner, the Airspace Lot - ������£ ���
Owner its'tenants and their resnective_ � 4`� ��
e . F' �F�� ����
-� Permitees may, but are not required, to �; ��°�
��
- use the valet service. - �= -�� �
�����
� . . . - � - � _ . _ . . ' FxA `�'_:
... .-. � . .. ._ . . � .;:. A .x`:_
, •
� - • a ' • � - • � � - • . -
Ho�r manv�parkiu� spaces ���ill I hare? �e�id��ces and p�ni�:ous�s ���h h�a and tl�ree
bedraoms���ll h�v�use of one p�'�n�,sp�ce, Those li�i�h fou or more b�rooms K�ill ha��e a�
af h�'o p�.rkin;�pace�s arran��d in lan�em fas�?on, �
��'hcre��ill mY parkinQ s�ace�s�bQ?_I�'Che}�u71 b�locat�07�he upper��:�g l�vel,nea�r an
ele��ator c�r��e�i�nt to yo�r resid�nc����ing.
�'here will mv�u�ts park?Cuests�711 use wal��par�ing,
�
�� 14-5=2: OTHER REQU_IREMENTS: .
• K.'Valet Parking:`:Valet parking shall be
��� �� � =allowed, but shail not exceed fifty percent � � �
' (50%) of the required parking on site. Valet
_ parking shall be-calculated utilizing an eigh�
foot by eighteen foot (8' x 18') parking space ;
for each car (parallel spaces must be 9 feet °
x 20 feet . Cars ma be arked u to four 4 h�
_) , Y p P _ � ) -:
cars deep in a valet lot stacked in a manner �'
in which any vehicles that may have to.be -���E ��
temporarily moved by a valet to gain access � �3
��
to ano t her ve hic le can be temporari ly par ke d��g ��;��
in a Jocation that does not block public 5 ���y��:
drive/pedestrian aisles or:a designated ` � `�
parking space.
TWO VERSI`U�1S OF THE TRUTH:
TWO fNTERPRETATI4NS-SAME
INFORMATION -
An examp le_ from the
World otlNevada Politics
. _.: ,. .. . �. ,
��HARRY: RE�ID'S�GREAT �UNCLE � � ���� �����
�� �'Judy Wallman, a professional
genealogy researcher in
southern California was doing some ,�
personal work.on her own family tree.
- She discovered that Senator Harry'
Reid's great-great uncle, Remus Reid,
was hanged for horse stealing and
train robbery in Montana in 1889. -
Both Judy and Harry Reid share this �
common ancestor.
�
The only kno�vn photograph of Remus shows him standing on the gallon�s
in A4ontana territory:
�
,
�
��� : ' �'�
- .nr.m ;�! :: .: �NG �
_ ;�
� �
�:�. �.�"�' a �_. 4�:
�� � R �;�.. .,�e
�4` �� nf;;_� .
� �.�
a
�.
s'� a
,7 .' x!_
On the back of the picture Judy obtained during her research is- �:
this inscription: 'Remus Reid, horse thief, sent to Montana ".
3�'..w ,��..
Territorial Prison 1885, escaped 1887, robbed the Montana Flye�����
six times. Caught by Pinkerton detectives; convicted and hangecl
in 1889.'
�- - � REID'S VERSION -
�..�. _
-� So Judy recently e-mailed ASenator -
� Harry Reid for information abaut their
gre�.t-great uncle: : �N r
��� _ �
� �� �
��
- '• Believe it or not, Harry Reid's staff�� �� y�� ��
sent back the following biographical��� ;� ��
sketch for her genealogy research:
� - � � � s
� _ ��__ _ �.
��. ���
� 7� .�� �+ �� '
��
Q4 �"?. ��.1� �°.;
� s.
' {�e ��'� ^,�-
� 2 .
� �
;� �"
'S3
�I I�I
��t IV I
;,�; .�, �'� �.
,,�.
,�.
��r ,:
13
� �`-"Remus Reid wc�s-a fcrmous.cowboy in __
�` '`tlze Montrrna Territory. His business empiYe. , ,
. g�ew to include acquisitio�Z of vctluable ` -
equestrian crssets and intimate deulin�s w�th _
tlie Montnna ��ail�oad. Beginning in 1883, lie
devoted seve�•al years of Izis life to goverszment _
se�•vice,fincrlly taking leave to t•esume liis
dealings witlz tlre r�ri[road. �n 1887, lze was a
key plcrye�in_a vital investigation ��un by tlre
>�;
� � renow�zed Pi�zkef�ton Detective Agency. In 1889�, �
Remus passed away during an �mportc�nt civic ��� -
function held in Iris honou�� when the platform x�F
upon wliicli !te wns standing collapsed. "
Statutory lnterpretation
_ s Plain meaning of the language
•Read in context
• Take direction
•Use definitions provided in statute
•Align the interpretation with
purpose
� — ' � • ' 0 • •
ear�1r. 7_e ::;nd.
T�ank you for l�our iztter oi:Febri�Gi� l�;200t),espre�sin��se�eral ar�as�+f i;oncern r�iih
rer�ar,s to L�e:�rrabelle at�,�ail Sc�u.jre prc�jec[in Li�nShead. �l he purpa�e oi'm� le;ter i�
to prb��iile rou i�itl�ti»�ritter.re;}�o�lae t��our��uesti�ns and cs?ncerns.
Parl:inQ
Ti,:e}�arl:i�le requiren�ents Ioc E?ri�ate detelopment in the 1�c��+n c�i't'ai?are e�iabli�;��d b��
Chapter lG,�ff Str�et P�irki�?�and Lc�ad��:g;aud Cl�apter��l�+.DL����lopm�:nt S_and�:ds.��
l'ail"l�c�ti���Co�z. according to Seeti��n 1-� ��(K1,1�alet P�rkin�,in�art,
� �'u�i'l j)PY�,'t2�S'19C1i�1?e CI'Olt'i',[1'; 1?l(1 S�iQii 31GI i??'i'eC'�fl,1`(}'('C'Yi'L'?il;+���%1(?1 i�iC?
�ec7ii!PC'Cr;)Ctr;kirlg tJi2 sifr.�' :
T�:e l�ail`1�0���;C��e�o��not reauirz thz as�ignment or c�e�i�uati�in of pri��te parking
spaceti. I��il�be ccintactin��represcntati�es from tiail Re�on�Der�lopm�nt Com��:m-io
�etter unde?-stand the currellt parl�in4�peiati�ns at thz:�,rra�elle at 1'ail Su:.ire p:�;��i
and cammit lo fc�llo�ti7ng up����th��Lu_o��ihis�matter: �� � �
16
14-5-2: -OTHER REQUIREMENTS: _ : '
s K. Valet Parking: Valet parking shall be ailowed, but
shall not exceed fifty percent (50%) of`the required
parking on site. Valet parking shalt be calculated
: utilizing an eight foot by eighteen foot (8' x 18') :
parking space for each car (parallel spaces must be
9 feet x 20 feet). Cars may be parked up to four (4)
cars deep in a valet lot stacked in a manner in -.
which any vehicles that may have to be temporarily
moved by a valet to gain access to another vehicle
can be temporarily parked in a location that does '
not block public drive/pedestrian aisles or a
designated parking space. _
�hapter:5 PARKING LOT AND PARKING,STRUCTURE � :
DESIGN STANDARDS FOR A�L;USES �
,'- : =. 14-5-1: MINIMUM STANDARDS: This.section � -
�' . (table 5) specifies the parking lot standards for all ,
' � ` uses excluding residential uses under three(3) units
and ir�cluding, but not limited to, commercial; retail,
office, restaurant, institutional, hotel, - :� ���
accommodation, and multiple-family development �°��.
� These standards are subject to all conditions an�� ,�:'� ��.�
- exceptions described herein. These standards s��� x
be considered the minimum standards. When tV�[� �� �z
�21 or more standards conflict the more `���� ���
restrictive standaed shall applv. - _�� �
_ - ��
._
14-2-1: DEFINtTIONS OF WORDS AND TERMS:
' • VALET PARKING: A service
provided with or without a fee
where vehicle is dropped at a
designated location and an
employee drives said vehicle to a
parking space.
, _ . : - :: . ,
. ,
14-1 -1 : PURPOSE AND INTENT:
x ' �' ' �
���� �4 f � �
.• it,is the'purpose ofitkiese 'rules,:reg�� ons, and. . . �
- - standards to ensure the general healt , safety, and
welfare of the commun,ity. These rules, re" , ions, i
. and standards are intended to ensure safe
e�cient development within the town of Vail . �- '�� �
pedestrians, vehicular traffic, emerg ency re +�nse �: �a
traffic, and the community at large. The - x� �
development standards will help rotect ro er k � �S ' ��-
values, ensure the aesthetic quality o the - � �k�
communit y and ensure adeq uate development of ���
property within the_town of Vail. (Ord. 29(2005) � § �. ���F
78)- _ _
S �:��,*� �.
�._� ��
��
�
�
Sumrnary
• Lawsuits are slow
- • Our interpretation of Statue
promotes settlement, most
consistent with context, direction,
definitions, and purpose of the
Town of Vail ordinance.
Vail Town Council Attachment: C
MEETING RESULTS (IN PART)
PLANNING AND ENVIRONMENTAL COMMISSION
February 22, 2010
•'
1:OOpm
TOWN OF VAJI,''
TOWN COUNCIL CHAMBERS / PUBLIC WELCOME
75 S. Frontage Road - Vail, Colorado, 81657
Commission members present (item #2) commission members absent (item #2)
Rollie Kjesbo Luke Cartin - recused
Micheal Kurz David Viele
Sarah Paladino
Bill Pierce
Tyler Schneidman
2. An appeal, pursuant to Section 12-3-3, Appeals, Vail Town Code, of the Town of Vail
Administrator's determination that Section 14-5-2-K, Valet Parking, Vail Town Code,
does not require that at least 50°/a of the required parking spaces provided on site must
operate as self-parking, and setting forth details in regard thereto.
Appellant: Donald Zelkind
Planner: Bill Gibson
ACTION: Uphold Administrator's determination
MOTION: Kjesbo SECOND: Kurz VOTE: 5-0-1 (Cartin recused)
Bill Gibson gave a presentation per the staff memorandum.
Commissioner Cartin recused himself due to a conflict of interest as Vail Resorts was
the owner/operator of the Arrabelle project and left the hearing.
Donald Zelkind, gave a power point presentation discussing how the parking has been
allocated and is being marketed at the Arrabelle.
Dominic Mauriello, speaking as a local planner/member of the public, stated that he was
not representing any client, but was involved with the creation of the language which
was adopted with regard to valet parking design and obligation. He highlighted several
projects which would be impacted if the interpretation made by staff was overturned. He
suggested that if a different interpretation was desired by the Commission he asked that
an application be filed to amend the Code and proper notification be given to affected
propetties.
Caroline White, land use counsel for Vail Resorts, stated that the company agreed with
the interpretation made by staff and encouraged the Commission to uphold the Staff's
interpretation.
Donald Zelkind, stated that he felt the statute was quite clear and should be interpreted
as he is suggesting.
� � Vail Town Council Attachment: D
I along with all the owners within the residential homeowners association at the Arrabelle
at Vail Square are all adversely affected by the Planning Commission's Administrators
r�ling,on tl�e�nter}�retation of§ �9�5=2 I�. § �4-5-2 K states that"Valet parking shall be
allowed, but shall not exceed fifty percent(50%)of the required parking on site."
Cunent status of parking at the Arrabelle
Total of spaces in the parking structure is approximately three hundred.
a) One hundred are attributed to the Arrabelle Club. The Town of Vail allowed Vail
Resorts to sell two Arrabelle Parking Club memberships for each of these spaces.
(As a separate issue we were denied access to political process when this was
presented to the Town because VR was our condo association manager and did
not not�any homeowner or board member of the hearing.)Furthermore Vail
Resorts offers daily parking for these one hundred spaces. For the one hundred
spaces designated for the Arrabelle Club,Vail Resorts is selling the same
space up to three times. These are 100% Valet Parking.
b) Ninety-one of the spaces are attributed to the residential owners. The promotional
literature,the initial sales contract, and even a clarification from the VR's legal
department all indicate that homeowners would have assigned, self designated
parking spaces on Gl (see e�chibits 1,2,3). Instead 100% of the owners are
required to employ Valet Parking.The entire Gl parking area is currently
leased to the Marriot. These spaces were sold once to the homeowners and
are being leased now to the Marriot.
c) The remainder of the spaces within the parking structure(approximately 110)
services the hotel and retail spaces. All the hotel retail clients must use the Valet
service.A small handful of employees and retail tenants appear to have self-
parking. Approximately 90%of these spaces must use Valet Parking.
In summary,the parking structure is over 95%Valet parking,with no assigned self-
parking privileges for homeowners or handicapped persons.
The first time I broached this issue with the Town of Vail, I received a letter from
George Ruther,that encouraged me to believe that VR was in violation that the § 14-
5-2 K of the town code, and furthermore Mr. Ruther indicated to me orally that VR
had represented to the Town of Vail during the approval process that homeowners
would have assigned self designated spaces. See attached correspondence e�ibit 4
my letter to the Town of Vail, and exhibit 5 Mr. Ruther's reply.
I was surprised when I leamed that the Planning and Environment Commission(PEC)
administrator had intezpreted the ordinance in such a way that exonerated VR's operation
of the Arrabelle Parking structure. Specifically,the PEC had determined that the
ordinance referred to Valet parking spaces and not the service of valet parking. The PEC
claims to be interested only in the number of blocked in spaces and not regulating or
ensuring the operation of valet parking services.
1
. ,
I am here to Appeal the ruling of the PEC, and suggest the following arguments to adopt
our interpretatton of the ordinance.
I. The PEC interpretation and process are tainted and would result in an absurd
result;
II. The plain meaning of the statute is clear and unambiguous; and,
III. If there is any ambiguity, looking at the statue for direction in the interpretation
and definition of the words should control, not an unverified narrative of what a
consultant whose advice was not followed may have thought.
I The PEC interpretation and process are tainted and would result in an absurd
result
A.Tainted process
I was asked to provide our basis for interpreting the statute, weeks in advance,while I
was given a copy of the basis for the administrators ruling roughly two hours before the
hearing. This is not exactly procedurally even handed.
The administrator's(this unidentified person) reasoning is based primarily on the
unverified, unrecorded narrative of what a previous consultant envisioned. The
unidentified consultant was not identified nor were his recommendations followed. He
recommended no more that 25%blocked in parking spaces would be acceptable.
Although looking to the legislative record is a method of determining the meaning of the
statute in the eyes of the legislature that adopted the language, reciting the unverified
narrative of a consultant whose recommendations were not followed has little value in
resolving any ambiguity.
Lastly, when Dominic Mauriello spoke against our interpretation of the ordinance he
identified himself only as a member of the community, and past participant in the PEC,
and did not identify himself an advocate for VR, nor did he disclose his wife's previous
position as in house counsel for VR. The only reason I am aware of this misidentification
is that I lingered for a moment after PEC's ruling and heard Mr.Mauriello identify
himself on the next agenda item as Dominic Mauriello appearing on the behalf of Vail
Resorts. The members of the PEC knew better,but did not correct the record.The lack of
procedural due process, adopting the supposed reasoning of an unidentified consultant
whose advise was not followed, and the misidentification of advocates for Vail resorts
masquerading as merely concerned members of the public, I believe taints the PEC's
process and f ndings.
B.Absurd result
In addition to permitting VR to force the condominium owners to valet park all their cars,
and exonerate VR's operation of the Arrabelle parking structure,the cunent ruling would
also permit 150 of the 300 parking spaces within the Arrabelle parking garage to be
2
, .
blocked in spaces. Hence, under the PEC's reading of the statute, despite having 50%of
the spaces blocked in spaces, failure to provide valet services would be permitted,
acceptable, and in compliance with the ordinance_ Can you imagine the pandemonium of
150 cars blocked in, and the owners of those cars would have to identify which cars had
to moved and anange for moving them themselves before the vehicle owner could exit
the parking structure? Does it really make sense to say that the ordinance does not
regulate valet parking services?This would be a very serious problem in any of the large
parking structures in the Town of Vail. This absurd result should be sufficient reason
alone not to accept the administrators interpretation of§ 14-5-2 K("Valet parking shall
be allowed, but shall not exceed fifty percent (50%) of the required parking on site- see
exhibit 4 page 4)."
II.The plain meaning of the statute is clear and unambiguous
If the purpose of the ordinance was to regulate only parking spaces and not the operation
of valet parking-services, it is our position that the statute should have used the term
"blocked in spaces"and not the term Valet Parking. In that way"blocked in spaces"
would unambiguously refer to the type of spaces in a parking structure, while"valet
pazking"retains the ordinary use of the term. See attached exhibit 6 the standard
dictionary definitions.
III.To resolve ambiguity,one must look frst to the statute for direction in the
interpretation and definition of the words,and not,to an unverified narrative of
what an unideatified consultant whose advice was not followed may have thought.
If there really remains any ambiguity after consulting the Standard English dictionaries as
to the plain meaning of the term"valet parking", the entire statute should be examined to
determine which of the two meanings should control. Reading the entire statute in
context,the statutes gives specific guidance on how to deal with ambiguities, provides a
definition of the term"valet parking", and also recites the purposes of the statute. The
guidance of the statute, the definition provided in the statute, and matching the purpose of
statute against the two possible meanings, all lead to the conclusion that"valet parking"
applies to the"service" and not only to the configuration of"spaces"within a parking
structure. Only after e�austing the plain meaning and examining the use of the term
"valet parking" in context, should one look at the legislative record. Even then, the
presumed, unverified insight into a consultants reasoning whose recommendations were
not followed hardly rises to the level of a recorded legislative record. The purpose of
examining the legislative record is to give us insight into what the legislators not
consultants were thinking when the statute was adopted.
A. Statutory guidance-When two (2) or more standards conflict,the more
restrictive standard shall apply.
§ 14-5-1 states unambiguously:
3
. n
when two standards could apply then the more restrictive standard shall apply.
Please see attached exhibit 7, page 1, the code guidance on two standards. The
question before the council is how to interpret the language of§ 14-5-2 K that states:
Valet Parking: Valet parking shall be allowed, but shall not exceed fifty percent
(SO%) of the required parking on site. See Exhibit 7 page 4.
The more restrictive interpretation would require that no more that 50%of the
spaces in the parking structure could be"blocked in spaces" and that no more than
50%of the cars that are parked could be parked using a"valet service."The PEC
would encourage you to use the least restrictive standard when the statute itself
guides us to employ the more restrictive standard.
B. Statutory definition
If the guidance alone were not sufficient to resolve any perceived ambiguity,the drafters
of the statute provided a clear and unambiguous definition of"valet parking."
§ 14-2-1: Definitions of Words and Terms: states:
VALET PARKING:A service provided with or without a fee where vehicle is dropped at
a designated location and an employee drives said vehicle to a parking space. See
E�chibit 8.
There is no way of escaping the conclusion that"valet parking"refers to the service itself
under the definition provided within the statute.
C.Fitting the statute to the purpose
Lastly,but perhaps most importantly the statute itself provides the scope and purpose of
the legislation. The section dealing with the intent and purpose should be examined in its
entirety.
�14-1-1: Purpose and Intent:It is the purpose of these rules, regulations, and standards
to ensure the general health, safety, and welfare of the community. These rules,
regulations, and standards are intended to ensure safe and efficient development within
the town of Vail for pedestrians, vehicular traffic, emergency response traffic, and the
community at large. The development standards will help protect property values, ensure
the aesthetic quality of the community and ensure adequate development of property
within the town of Vail. (Ord. 29(2005) � 78) Exhibit 9.
The purpose of the statute is not confined to the number of"blocked in spaces"but
specifically states that the scope of the legislation is to include"vehicular traffic"that is
the movement of cars not just where cars may be permitted to be parked. Since the Town
4
� .
of Vail has an easement through the circular driveway of the Arrabelle,the Town of Vail
has an interest in the"vehicular traffic." Specifically, 95 %valet parking service
produces a significant impediment to traffic in the circular driveway of the Arrabelle.
Allowing homeowners to park there own cars would reduce the congestion within the
circular driveway and facilitate safe and eff cient vehicular tra�c.
One could also argue that the general health safety and welfare would be promoted when
individual owners are responsible for parking their own vehicles.
With regard to avowed purpose to help protect property values, there is no question that
self-parking with the option of"valet service" enhances property values more than forced
100%valet parking service. If forcing homeowners to use 100%valet service did not
result in a diminution in the property values there would not be a class action lawsuit
pertaining to this issue at the Arrabelle. See attached complaint E�chibit 10.
In summary, we encourage the Town Council to interpret the statute that states:
Valet Parking: Valet parking shall be allowed, but shall not ezceed fifry percent
(50%) of the required parking on site. See Exhibit 7 page 4.
To mean that a facility that requires almost 95%of the vehicles to employ valet parking
services is in violation of the ordinance. To restrict the ordinance to merely categorizing
the configuration of spaces within the parking structure between"blocked in" and free
access spaces would produce the absurd result. If a large parking structure, for example
500 spaces, and 250 of those spaces were"blocked in" and there were no valet"service",
this would be in compliance with the ordinance. It would be chaos to impose upon 50%
of vehicle owners the responsibility of tracking down and/or moving cars just to exit the
parking structure. This would not be effective town planning and regulation. The plain
meaning of the term valet parking as defined in several English dictionaries refers to the
service of valet parking, not the configuration of spaces within a parking structure. An
examination of the statute provides guidance to impose the more restrictive standard, and
that would be to regulate the service of valet parking.The statute itself defines valet
parking as a service. Interpreting the statute to regulate the percent of allowed valet
service rather than merely regulating the number of blocked in spaces is most consistent
with the stated purposes of the statute to promote safety, vehicular traffic, and promote
property values.
Resp�ct�ully SdDi��tted,
Dated: March 15, 2010
Donald Ray Zelkind MD, JD
HOA president,Arrabelle Condominium Association
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DateofAttionJDec�sian: ._ r..,_�_y.:_:� :
Soard or Staff person renderiRg actionJdecision: �..--�«- ,----� . : .::—___^:: ' ,; .
Daes this appeal invotve a sp�cifi�parcel of tand? {yes) {no);wa �-
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'Tfi yes, are you ��adjac�nt�rop2rty owner? (}es) {no} ::==
Name af Appeii�nt(s}. �� `
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Mailing Address: -- - - _ fi� - _ —
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Lega) �escription of APPeliant s) Prope�n Vail. 'ct:� .cc�:� Su�ci�rrs,��;n:_ °
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Submittal Ret�uirernents: -
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� D�.AI�'T
A,Y.RTL S,2005
� �
; � reasonably necessary to gain vehicular and pedestrian access between the Project
{ Improvements, the Allocated Parking and the public roads and rights-c�f-way
� adjoining the Project Impxovements;and
� (2} An easement for the benefit of the Airspace Lat Owner, its tenants
� and t�eir respective Pernvttees as may be reasonably ne�essary for access to and
� from the Airspace Lot generally and between the Airspace Lot and the Alloeated
Pazking (a) through, on or in the common corridors, hallways, entrances and
Iobbies iocated within the Project Improvements; �b)via the elevators and
escalators within the Project Impravements except an�: eleva#ors specifically
designated as eleva#ors for Project employees or operations and not ger�erally
open for public use; and {c)via ali stairs and stair�vells throughou# the Project
Improvements. -
�u) Parkin� Easement. A parking easement for the benefit of the A.irspace
Lc�t Ownsr, its tenants and their respective Permittees to use an� occupy for vehicular
parking purposes a#otal of[94J parking spaces l�cated in the Project Improvements, the
initial location af whic�is identified on the attached Exhibi#C {the"Ailocated Parking"),
The Project Owner may reloca#e the Allocated Parking frflm tazrse to time so long as the
Allocated Parking continues fo be located in the Project Improvemen#s; prc�vided,
� however t}�at the Project Qwner may not relocate those �_,J parking spac$s wi#hin the
� Allocated P�rking labeled as"Permanent Allocated Parking."'Tha Allocated Parking znay
,�-`�; be used by the Airspace Lot Owner, its tenants and their respec�ive Permittees only at
thase times when the Airspace Lot Ov�rner, its tenants and their respective Permittees are
in residence within t�e Airspace I.,�� To the extent the Airspace Lot Owner, its tenants
� and their respective Permittees are not in residence wiihin the Airspace Lc�t, the Project
Owner may use ar occupy the AIlocated Parking. Natwithstanding the faregoing, the
Airspace La# �wner may s#ore one vehicle in each vf the parking spaces located in the
Permanent Allo+cated Parkang, regazdless of whether in residence within the.Airspace Lot
so long as the Airspace Lat dwner leaves k+eys for such vehicle(s) with the valet for the
Project Tzxipravements.
(1) Use of the Parking Easement. N� �ommercial vehicles, baatS,
mator homes, trailers or other recreational vehicles may be parked in the
� Allocated Parking. Nt� abandoned, inoperable or unlicensed vehicle may be
� parked iza the Aliocated Parlang. Except in the event of an emergency,na vehicle
maintenance ar repairs may be performed within any portion of the Allocated
Parking. None�f the Allocated Pazking may be used for storag� c�f any personal
� prop€rty or o#her items. E�cessive noise, including but not limited to automobile
� stereo systems, racing of engines and use of hoins is prahibited within the
; Allocated Parking. If a vehicle is equipped with an alarna system that continues to
souryd in excess of thirty minutes, the Proj�ct Owner may have the vehicle tawed
� from the Allocated Parking at the vehicle owner's expense. The owner of any
� vehicle �eaking ail or other automotive £luid �onto any portion of the Aliacated
��_ Parking is responsible for any expenditure to restore same to a clean coz�dition,
� Under no circumstance$ will the Projeet Owner be t;eld responsible for any
,
,
� 6xsatis,a n�au��rasz.t�rPht � •
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; , ,
DR�iFT
APRIL 8,200�
` ��, damage to or theft of �ny �ehicte p�rked �Lri#hin the Allocated Parking c�r any
items within any such vehicle.
(2) Valet Service. The Airspace Lot���rner acknowledges and agrees
� tha# the Project Owner, in connection with the operation of #he Project
Improvcments,may,but is not obligated to, offer valet parking from time to fime.
' To the extent such valet service is provided by the I'roject Owner, the Airspace
` Lat t}�i�ner, its tenanis and their respective Permittees may, but are not xequirecl,
i to use#he��alet service. fihe Airspace Lot Owner acknowledges and agrees ihat if
the Project C)vvner offers valet parking the cost of providing valet service to the
; Airspace Lot Oti3mer wi11 be iucluded in tl�e "Operating Costs" {as d�fined belaw
� in�ection 6(b))regardless of tvhether the Airsp�ce Lat Ch�vner utilizes sueh valet
' service.
t (ui) Amenities Easement. An easement for the benefit of the .Airspace Lot
j ��vrZer, its tenants and iheir xespective P�rrnit#ees a��er t3�e Project 7niprovernents as
reasonably necessary for access io and from and use of the'Amenitaes. By taking title to
the t't:irspace T.ot, the Airspace Lot {7w�ner acknowledg�.s and agrees thaf the Pz'aject
j Owner may alter� aba»don, ar relocate any or all of the Amenities fram time to time, in
� its sole and absolute discretion, and lhat this easement will continue only�'or so long as
� the Axnenities exis� Except for those facilities expressly included in the definitioz� of
; "Amenities," n� other Project Irnprovements or facilities are iucluded and no f�cilities
� ,--�, ad�ed to the Proje�t by the Project{h�vner ir�the future shall be included in�he definition
� of"1�menities" u.niess expressly provided fox in writt�n amendment ta th.is Agreemen�
Th�A.irspace Lat Qwn�r wili abide by all Rutes regartling nse of the Axneni�ies impas�d
; by fih� Project thvner .from time to iim$, including paying any charge for services
; pro�ui�ed in t1�e Spa and Great Rflom, so Iong as such charges aze the same as Hatel
� guests aze charged. 1£the A.irspace Lot Qwner fails to abide by such Rules, the Project
� Or?vner may, in addition to and without wai.ving any nther remedies avail�ble to it,restrict
� the Airspace Lc�� Owner's ac�ess to any ox all af fhe Amenities, %n accordance with its
nozmal procedures under such circumstan�es. In the �vent that the.Airspace Lot Owner
is 60 or more days delinqnent in the payment of any Expense Payznent ox Capital
Payment, the Pm,�ect Owner, in additivn t� and wi#hout waiving any other remedies
; available to it,may resf�ict the Airspace Z.ot Uwn+et''s access to any or all Ame�uties.
�
; {iv) LTtilitv Easeme�tt. An easement for the b�nefit of fhe .Airspace Lot
� ()wn�r, its lenants and their respectiv�Pe�nmittees flver anci across any Project �en�ice
; Eleznents as may be reasonabIy nec�ssary far th� continuance of utiliiy services,
� ptumbing services, sanitary and storm se�e�r services, water supply, felecomm�ucations
1 �nd other services ta the Airspace Imprdvements.
�
� {v} Struc��ral Ease�»ents.
''; (1) An easement for the benefik of the Airspace Lo# Qvvner over and
� across the Froj ect Structure, including withaut limit�ttiou, the e�cterior enclosure
;
�''`� system and roof of the Project Improvements, as may be reasonably necessary for
� � adequate enclosure against the elements and stivctural suppozt of the Airspace
�
stA�s.e nucrru wri�ros z:a�ru+ �
�
I'
Sep 02 08 11:15a DAVE COLE 4042552677 p.1
To:Bart Peaslee ..Fax._888-839-4113
From: David A.Cole
Sept 2,200$, 4 pages including cover
Sep 02 08 11:15a DAVE COLE 4D42552677 p.2
ARRABELLE AT VAIL SQUARE CLOSIVG PROCESS
AND GENER4L QUESTIONS r�YD ANS�'4'ERS
A.PRIL 2005
S_AI..ES PROCESS
E_4RNEST h�ONEY
As you may recall,you were required ta submit$100,000 along with vour init3al Reservation. In
accordance with the terms of that Reservation, you must submit certain Additional Funds when
you deliver an executed Purchasz Agreement to Slifer Smith & Frampton�'�TARE. The amount
of Additional Funds equals 10 %of the Purchase Price less the previously deposited amount of
$100,000. The Additional Funds can be submitted��ia vvire transfer OR as a check {made out to
ARR_ABELLE AT VAIL SQUARE, LLC) attached to your Purchase A�eement. Your Earnest
M�ney deposit will draw inte�est until Seller commences construction. Seller will deliver
v��ritten notice to Purchaser aEnd the Title Cornpany at the time of Constr�ction Commencement.
An addiuonal deposit will be due at that time, in accordance with the Purchase Agreement.
LOAN
Although you may acquire a new loan in connection with your pay�nent of the Purchase Price,
there is no Purchase Ag-eement contingency for any new loan. Accordingly,we recommend that
you apply for your loan at least 60 days before closing.
CLflSING COSTS
Closing costs aze those costs normally paid by a purchaser of rea� property_ For present
purposes, the closing costs include, without limitation, recording fees, transfer assessment,
charges for delivery of closing documents if outszde of Eagle County, one-half of closing fees,
not to exceed$500. These costs are further defned in Sectian 9.3 of the Purchase Agreement.
T_4KIlyG TITLE
The Land Titte closer will consult with you prior to closing to confiim how you plan to take title.
You may elect to talie title in joint tenancy or as tenants-in-common, if applicable. Please
consult your legal counsel and tax advisor as title may have legal and t�ramificarions.
RESERVATION ASSIGNMEnT
Arrabelle Reservations are NOT assignable. Purchaser may, nevertheless, be allowed to assign
Purchaser's reservation to a member of Purchaser's immediate family, a trust created for the
benefit of Purchaser or Purchaser's immediate family, or a corporation or other entity �r•hich
controls, is control[ed by, or is under common control with Purchaser (each a "Permitted
Assignment"), in accordance with ihe Purchase Agreement. Prior to Purchaser making any
Permitted Assignment, Purchaser must provide Seller a�ith comprehensive documentation
evidencing to Seller's reasonable satisfaction that the proposed assignment is in fact a Permitted
Assignment. Selier reserves the right to refuse any assigiment that is not adequately supported.
Such an assignment, if permirted, �ti�ll take place in connection with Closing, and the form will
0�'15I05
Sep 02 08 11:15a DAVE COLE 4042552677 p.3 .
� _ �
be available from Land Title no earlier than September l, 200�_ This is further defined in the
Purchase Agreement, Section 18.1.
SIGNATURE PARTIES
Both Purchaser and Seller must sign the Puzchase A�eement and reJated documents.
GENERAL QUESTIO�IS&ANS'�'VERS
TIhiING
WLat steps should I take if I cannot be reached betvFeen now and AZav 2°d?Notif}�our office
at VaiPs Ne«+Dawn Preview Center at 86b-NE��v-VAIL of the dates you will be out of town and
provide instructians on how best to communicate with you during that time.
RESIDENCE PRODUCT
Horv can I see the floorplan of mv residence? The floor plans are available at
w-ww.thearrabelle.com.
Can I chanEe the floor plan? The Change Order process is included as an exhibit to the
�urchase Agreement and addresses the procedure for making any changes to the Unit.
Are all iloor corerin�s included in the Purchase Price? Hardwoad floors are included in t�e
living room, dining room,l:itchen and entry. Stone tile is included in the bathrooms. Carpet is
included in the bedrooms.
Z'Vhere can I select my finishes? You can r•ie��� the finishes at VaiPs New Da1��n Pre��iew
Center.The Seller v��ll mail you a"Finish Book"t�review after contract,
�'Vho do I contact to make finish selections, upgrades andlar chanQes ta mv resfdence?
When is t6e deadline? Between approximately Ju3y 200� and September 200�, we will
scbedule an appointment with each purchaser to facilitate the selection of our "Standard
Finishes." Please refer to the Change Order procedures as outlined in the Purchase Agreement
for all other changes. We «Zll not be prepared to discuss the feasibiliiy of or costs associated
t��ith Purchaser,Directed Changes until approximately July 2005_
Can I do a "walk-thron2h" prior to closin�? Yes. there is a walk-througk► pro�ision in the
Pwchase Aereement, and you will conduct your walk-through (scheduled with a compan}�
representative)prior to closing.
Do I ha��e to purchase li�ht fixtures? The only (fixed) light fixt�re you will need to
purchase is the dining room fixture. Al] other(fixed) fixtures are provided.
What appliauces are inel�#ded' The range/oven, refrigerator/freezer, micro«�ave oven,
dishwasher,disposal, and a�t�asher and dryer are included in the Purchase Price.
04;15;OS 2
Sep 02 08 11:15a DAVE COLE 4042552677 p.4
I3ow manv parkin� spaces w�ill I b�ave? Residences and penthouses with two and fl�ree
bedrooms w�il}have use of one parking space Those with four or more bedrooms wiIl have use
offi;ro parkinQ spaces arranged in tandem fasl�ion.
Where will my parkin�s�ace{s) be? It/they will be located on the upper parking level, near an
elevator convenient to your residence wing.
Where will mY �uests park?Guests will use valet parking.
Who provides the television, telephone, and Internet service? Television,phone and Internet
sen�ces will be available throu�h the Hotel. �
A11��NITIES
Will I have access to tbe spa? Yes,the purchase of your residence includes access to the Spa.
Will there be a Ski/Board/Boot Valet? Yes, it v��ill be located in the southeast quadrant of the
property on the g�ound level just opposite the Gondola and Chair 8. �. `
Do I�et special skiin�privileQes? No.
Will tbere be anY restaurants in the Arrabelle? Yes,there will be one hotel restaurant serving
breakfast,lunch and dinner and a pub!deli for lighter fare.
Can I use the Hotel Concier�e? Yes, ail Hotel services will be available to residence owners.
Will the hotel provide a Business Center? If so, can I use it? Yes the Hotel will have a
business center adj acent to the meeting rooirvbalfrooms. VVe will pro�ride standard business
center equiprnent with keycard access.
What are mv HOA dues/fees? Homeowner fees are approximately $1.00 per square foot of
residential space per month. {Example: 2,000 sq. ft 3 bedroom=$2,OOQ per month). :
OTHER QUESTIONS
Please direct any other legal questions (BY EM:�.IL O1�ZY) to rweily(a�vailresorts.com, v0
PHONE CALLS PLEASE.
l:'�.4rrabcllc�Closing Processl.4rrabelle Q�.A-FINAL_dx
04/151'US 3
February 12, 2009
There are three areas of concern that I believe warrant the Town Councils attention and
would appreciate the town's cooperation in providing the information requested below:
A.Parking
Many of the homeowners purchased their property after having won a lottery for some
fifty units.Before and after the lottery,written literature was circulated to prospective
homeowners to induce them to enter the lottery and sign a purchase contract.
Homeowners were told they would have designated parking space/s near to the elevator
closest to their unit, and self-parking.
What we all were given after closing was a right to use the valet with no designated
space.
VRDC was well aware of the friction created by this apparent bait and switch scheme.
In October of 2008, long after VRDC was well on notice of the"parking problem"with
the Arrabelle condominium owners, VRDC apparently applied to triple the number of
parking memberships for sale at the Arrabelle Club from 100 to 300.
NO HOMEOWNER WAS EVER NOTIFIED THAT VRDC WAS APPLYlNG FOR
THIS ENLARGEMENT IN THE PARKING LOAD ON OUR SHARED PARKING
GARAGE. Is there a notice requirement to adjacent landowners, or those with parking
rights that may be affected by this change in the number of parking memberships? In all
fairness, shouldn't the homeowners or the homeowners association be notified?
I would like to see the statute that controls the notice requirement and any paperwork
filed by VRDC to reflect compliance with the statute. We would also like to have an
opportunity to express our concerns about the impact that this has upon our parking
rights, and request some sort of enforcement mechanism to ensure that the additional two
pazking memberships do not infringe upon our allotment of parking spaces within the
shared garage.
This is a matter for the Town Council to address.If VRDC skirted the notice
requirements imposed by the town in its application to sell additional parking
memberships and the Arrabelle Club. I believe that VRDC should not be rewarded
by the town of Vail for violating the notice requirements contained in the zoning
and/or land use process.
B.Building
There are three large issues related to the construction of the Arrabelle. VRDC frequently
responds to building issues by stating that the Town of Vail conducted an inspection so
there cannot be design defect issue, or warranty issue.
Access panels to whirlpool motors
There are no access panels to the whirlpool motors for the tubs in the master bathrooms.
Rock resorts has been providing complementary bubble bath salt cubes that will gum up
the motors. During our annual homeowners meeting VRDC has the temerity to claim that
tearing through grout joints, and removing marble tiles was the same as having an access
panel to the whirlpool motor_ When the engineer/maintenance staff tried to repair a
whirlpool motor obtaining access to the motor required two days of digging around.
Does the Town of Vail building code require access panels for whirlpool tub
motors? Did this scheme really pass inspection?Is tearing through grout joints,and
removing marble tiles fall within the Town of Vail's definition of an access panel?
Fallin� roof tiles
The Arrabelle has a large walking mall and public area that attracts considerably more
pedestrians than the 66 condominium owners.The concrete roofing tiles have been
falling off the roof at an alarming rate. Beginning during the summer and increasing in
frequency this winter, chards of roofing tiles can be found underneath the circular parking
drive,the square itself, and Arrabelle balconies. One person has already been hit on the
head and fortunately he was wearing a ski helmet.This a design flaw in the roof that is
just over a year old and represents a hazard to the general public.
As a general public hazard this warrants the attention of the Town Council.VRDC
should be required to remedy this public hazard at their expense and give a
timetable for the repair process, and a plan to avoid casualties until the defect is
fixed!!!
Waterproofin�of the steam shower units
VRDC and the subcontractors have given us contradictory information as to whether
green board or cement rock was used in the construction of the showers. Green board
according to the manufacturer is not designed for steam showers. At first we were told by
both the plumbers and VRDC that only green board was used,VRDC claimed that that
was all the town of Vail required. Later on VRDC claims that cement rock was use and
not green board. �
To ensure that we do not have showers leaking into the units below,we would like
the assistance of the building inspector for the Town of Vail to determine what was
used,and what should have been used to waterproof the steam showers.
C. VRDC's attempt to avoid the Colorado Common Interest Act
The Colorado Common Interest Act was enacted to control common interest
communities created after July l, 1992. Under the Colorado Common Interest
Ownership Act(the "Act") utility expenses can only be a�pportioned according to
. y
use. One second before filing the Condominium Declarations with Eagle County, VRDC
filed another document entitled Reciprocal Easement and Covenant Agreement.
Self-dealing contract to bind homeowners in perpetuity
This RECA was a contract between the Arrabelle at Vail Square LLC (as project owner)
and the Arrabelle at Vail Square(as air space owner). Keith Fernandez president of
VRDC signed the contract with himself as the managing member for the Anabelle at Vail
Square LLC. This RECA recites that the airspace owner(that was subsequently
subdivided in 66 condominiums) must pay 59%of the utilities of the entire project
including the hotel and retail spaces without regard to actual utility use as required by the
Colorado Common Interest Act.
In addition if the hotel wants to make a capital improvement to the lobby of the hotel then
the homeowners again must pay for 59%of the improvement to the hotel lobby. The 59%
apportionment of all costs and expenses associated with the hotel and retail project to the
homeowners without regard to use, benefit, and control is not fair and reasonable and
contrary to the"Act."
VRDC in the RECA document states that Arrabelle project falls outside the protections
offered to condominium owners and within the small development exemption provided
for in the"Act."The small development exception refers to projects with fewer than
twenty units or the average common expense per unit is less than four hundred dollars per
year.
VRDC claims the separation between the project lot and the airspace lot is a two-lot
development and hence under the 20 unit minimum. The fact is the Arrabelle is a 66-unit
condominium development and the average annual per unit expense is over twenty five
thousand dollars. The"ACT" defines units, but VRDC in the RECA refers to lots.
The"Act"prohibits declarants such as VRDC from creating schemes to defeat the"Act"
and prohibits attempts to sign contracts to exempt a project from the"Act."The RECA
document is a scheme to skirt the"Act."The RECA document is an attempt to skirt the"
Act"by Mr. Fernandez signing a contract with himself.
The"Act"also requires the declarant to pay all expenses in connection with real estate
within the common interest community subject to development rights. The hotel and
retail space are development rights retained by VRDC, and under the `Act", VRDC
should bear all the expenses. The RECA is an attempt to pawn off 59%of the cost the
common interest community subject to development right onto the residential
condominium homeowners.
The"AcY' also imposes a covenant of good,faith and fair dealing. It is hard to envision
that all these systematic attempts to skirt the"Act"and shifts costs to homeowners could
be characterized as good faith dealings_
, .
The reast�tt 1#a�°�;:�pwn Gouncil should be concerned at�out the RECA vs. "Act" is that
most of the Arrabelle homeowners are out of state purchasers and all are tourists that
came to Vail to purchase recreational property. If VRDC is generating schemes to defeat
the rights afforded condominium owners within the State of Colorado, VRDC is cheating
the Vail tourists.The town of Vail should be concerned how tourists are treated by
VRDC in these real estate transactions. To a large degree the well being of the town of
Vail is dependant upon satisfied tourists who are treated fairly and in good faith.
, ,
� ' �
�
��'/il V����. .j .. . . .. ... �
Dzp.,z;�r.vreni t�fC`ornrr.�rsi>y Develo�m_ens
.'S Sssrtl�f=r-ontn�r r?oacl
+'.�ii, Cr��vra,,i'<�816��
9i C1 �.'9-"1138
t�`u �i�1--i/�-l'472
�v�r,�au v;ai ioov.i orn
' rzbnian- 16, %009
I��tr. Donald 7_elkind, Presidellt
Arrabelle at 1'ail Square�tomeowners associatiosi
E��O �Vest L'ionshead Circle
�;'ail. Col�rado 81b�&
Re: ,�rrabzlle at Vail Squ3rc
Dear 1��1r. Icll�ind;
Tl�ank you for��our letier of I�ebru�u�v 1?,?009, expressino. �everal areas c?f conc:en� ���ith g
' :.: : rz�ards to tl�e =�rraL�eile at Vail Square'pro:ject in Lionshead: "l�he purpose of my letter is `" '
to provide �-ou ti�iih a��°ritten responsc to ��our qi�estions and cencerns:
Parkii��
The paikin�requirenlents fur�ri�.ate de�elopment i�1 tlie To1��n c�f Vail are established l�y
�hapter l0, �ffStreet 1'arkin� aild Loadi���, and Chapter l�; De�F�topment Standards.
Vail I�o1�7� Code. According to S�,ction 14-�-2(K), Valet Parkin�, in pari,
"t�irle7�?c��-kit��r,s•h�rll he allo���ecl, htrt s11t111 not ecreei�fif't���ercent f�fJ%i of tlre
��equired parkira,orr site.'' ,
The tiail To���n Code does rlot require the assignmcnt or tiesi��naticitl of pri�°atL }�arl�in�
s��accs. 1 ��ill be contactin�representati�•es from �'ail R�corts De.�elop;nent Coinpany to
bzlter,understand tlle c,urrent parkirlu operati�ns af the .�rrabelle at ��ail Squar� �roiect
and cof�imit to folloti��ing up t�it}1 �•c�u on this matter. -`��
I'ublic No#ice Reqtiirernen#
I'ublic nc�tice rec�uirements fc�r all de�el�pment �pplic�ti�ns reauiring a public hetiring.
hei:or�the Toc�-n of�'ail Plannin�c� E�zvirorrmental Commission are prescrit�ed in ` ;
�;: Section 12-3-6 fC'); \e�tice,Vail To��-n Cotie. t�ccordin�to Szction 12-�-b.
� ' ; .,I.::,�'ot r'�ss tl�crn fiflee,t (1�� c�trys pri<�r lo ih�'dc7te set�jor 1he hearin�T.heJ�re ilte
pltii�nin;und enviromrter�tnl cvnt�nission, the adnri��zstr-cztor slzcall carrse rt coDy of
_ ,
: � ���he��notice��10 he��,rl�lisl?ec�a�ce in r�netil°st�aper c�f�ger�erul crr-cz�la[ion in tlre ���1��z. � �� ��
. �� Rf.CV7'I ED�P.IFER:�.
.��` .. ♦ . . _: . . ... ... ...:.. _. .
�. In c�ddrtic�v��lv ihe publis�zed notice; tfie administraior•shall crrus��a r�op�r�v,�he
- nuiice !o b� mailed by fir•st class�r�ail,postu��e��repuid tv the o�vner-or ol�ners of
recorcl r�rhe�roper�ry ii�hielz rs si�bject nf tlie Ilerarislg and the �ticner'or nlcnet•s of'
�-ecord o��tiie��roperly acljac•er�i�o�Ite subject properry�(if_the adjace��t pr�pc�rty i.s
i�cvr�dominium pr•ojecr, r�oticc� n�ay be mailecl ro tlre �rlcmc��ing rigeni, re�;isterec�- ��
cr�ent or•trjry)nember o1 tlze bour�d nf drrectrrt-s the��evf,for-u��y'umen�l�i7er�t,
Cj7LlJY�E! Ol"LIt'7�7�ICGtIZL1YI J"BIC71777�JO:
a. Ch�m,�es itr znninr t�istrict houradcrries:
� b. Cunc�itiortal us�es:
C. T:GYIGlYICt?S;
d Developrnent pluns.�or s�ecial develUpn�ef�r rlistricts; an�
e. CJiu�rges in the dens�itl�c�ntr�ol secliczns in a»1�c�f�he.-or�e �listr�icts.
:3. 7'he ivirhin rc�quirer���atices shall siate the time and place of tJre hearing, nume
��f 1lie crpplicUnl. cr gey�erizl c�esc��iptinn�f Ihc� ,rubjer�t r�r'nperly in•�icat�r��?ts
locali�n {iti�lzich jrtay be sh�itm by map), a briefswfzn�arv o�f t�re sirb�j��c�maiter of�
��Ihe hearing, c�ncl��u�state»rc-�zt�thut Ihe u�pliccrtivn vr ir�tfo�-rnatiorr r�elatirz�ir� tlle� �
x�rot��:se�t chun�e o�-umenctrrre»t is cr�•crilcrhla in tl�e ucl�ninis•trator's� v�fic�.� ��irrif�;
" re�zrlar business hc�i.�rs�`�r��eriei�� or inspectio�r ���tlac���ublic•. '.'
�,=
. ♦
parking cli►b,'there is iro net reduction in the total nuinbzr of parking spaces atiailable for
residential uses. �ccordin�to'the To���n's records, approximately ninety-c�ne (91) spaces
are required #�or the're�idential uses.
:�ccess Panels
�l�he To���n of t�ai1 I3uilding C�de requires acceSs to the moters ut:titi�hiripoo] nih units.
Acct�rding to the?00� I�?ational El�ctrical Code (`�1EC"), in part,_
"Strfficret�t cicc•ess artd�s�or•king sptrce shc�ll bc�proi•iz�ec�at�c�rrlair�tai���r�ahoul nll'
�IectricaLcyui�ment J���erty�itreac�j%cmd�zrJe oper�ativn u�id�n�ctintenar�ce o��s�z�ch��
Ef�t�1�27?1C'171` ��
` '�
On hellalf of the Toti�n of��'ail; I tii�ill rzvie���the list of required i�lspecticns and
,� coi�ecti�ns completzd by the`1�o«m t�t���ail Comnlw�it}° Dev�lo�ment l���pal�tment 10 � � ;
determine thz�tat�.is of cr.mr�liance ��-itl� the appJicable L�uildinQ c�des. 1n r�t�_irn, I ����ula
also rLql��st that the residential c�«�ners association pleas� pro��ide,the Con�nlunitti
Develo�?ulent Dcpai�tment �-vith a list of'«hich resid�;ntial units it belie�esmat not
cpmpiy titi-ith the a�plicable buildin� c�des.
Fallina Roaf Tiles
t�n behalf of the`l�u��n of Vail, I have been in direct contact�i-ith Ivlr. Keith Fernandez,
;' 1'resiaent; and �1r. Th�mas Miiler;Uirector of Development;'bath of Vail Resorts ':
;: Detiel���ment Company, regardin� the issues of�tl�e failina rooftilc; system and falling
snotiv and ice fruin the�`�.rrabelle at Vail Square project. ln response to these tti}� issues;
�� � �� the To«�n ci�f�`ai3 has granted revised�d�si�n��approvals ��d ele�trical pennits enat�lin�� � ��' �
::: ` V:RDC to immediately address ihe issues. F<�r example; the To���n t�f Vail e�pedited the "
revie���of a c�esi�n re�-iz�� api�licaiion titihich facilitate� e��entual mociilications to the
sa1o•���uard s��stem a t�p the roof': .�, sec:ond example inclu�iis the issu3nc� of am�nded
electrical ��ernzits �ranting VRDL permission to add additi�nal heat t�pe to critical areas
on_�he buildi���. Kest �ssured th�Totivn of�Vail izas in�pressed u�fln VRDC t,h�
importance ol�i'ull��adc�ressing tl�is iss�iz ii3 a most tinazl� manner.
, .,.
\�'aterproofina�#'the Steam Sho��er Llnits
"I'he`I't�ti�n of1�`ai1 Building �odes regi�lates the constn�ction �f stean� sh�ti�,er units. ` `
Accoriling t� the �OD3 Iniernati�nal Building Cc�de, in part;
.:yt<1�ej��;)�bsu�r��bnczrd is usecl ds u base far tile �r- tir•�xll punel�s fc3,r rubs, sl�c�a+�er ��' �
ii�tllet�c�lt�sei e��tlz��crr�merit�,�trlls, �vizt�r-resistanr��si�n� 1i�zc•kit�� .hr�to-c�shrrl?be- �
used as crsiabstrute: " anc3 ..��uter resisliziz���}�sun� hackinh hncrrd shqll rzot be
ruecl rr�a�lae follai�-irr4 7ocation' 1�'7�ere �here �i ill be cJir�c!exposure t� ��t°ater or�����in
crrecrs_rrrhjec! lrz c'��t2tim:rr�t�., l�i�h)ru�7�idity. " Section ?�09:3 1f3C.. `
, <:�
� I=urther, accordin� to the mamriacturer's sp�citicatic�ns; � � � � � �� �
�
``Glpsunt ���ullboarc�linciirdin��reert 1�ot�rd� is:\"(�T i-ecc�rrtntert�ed f'or u;se i�-here
� � rhert> ia�itl�be �lirec( exposzrr-e ro ���uter or c•c�r�linr.rv�+.c'I�i�h7�z�midily c��r�clitians
;$
;
. .
suci� cls:foa�nd in sat�nas, stecrnt rooms, �cm�=sh��iti•er rot�ms or s�r,�irnrnr'n�pvol
c�nclvsures. �'cementutic�zrs tile backer, s•rrc•h as Per»rcrBcr�e:?:, or-the irse o.f u
Po�-tlarnz cenrenl hasecl plasle3•syslem sh��uld be consiu'erccl. "
In reference to your re��uest of the 1'o�i-n;plca5e be min�ful that neither`'oree�i board''
nor"czment rock"are waterproof ng mat�rials, and as such should not be relied tipon as a -
`. means for providing a water,�roof inei»brane betti��een 7-ecidential units. '
� � �'�gain, on behalf of the Tow-n, I ��ill re�•ie��� the list o#'required inspections anci �
correctic�i�s coinpleted by the Toti�•n of��%ail Cominunit�� Dev�lflpm�xlt Department to
' determi►�z the status �f campliance 1+�ith tlze applicable building ct�des'. �`
�, , _
Colorado Common'lnterest:�ct
; : 1'he `I'q��-n of�%ail is always interested as to h�w its resic�ents, �t�zsts; visitocsand
pr�pe�ty ot�-ners arz treated in r�al estate transactions that�-�cceir���ithin the to«n. I have
noted your concerns and com��iii tc� spcaking with both tl�z To��n ��.ttomcy and °
representatives Trom�'ail Kcsort� I:}evelopmznt C�mpany to better understand ti�l�at rolc:';
if anv, the To��,-n can pla_y in ensurin, �•t�ur concerns are addressed. fllso pl�ase
understan� it is not the "I�o�in's role to determine if any ��rong doings ma5:'l�ai•e oc�uneci!
in the creat.i�n�f�the .lrrabelle at 1'ail Square Condominium r•�ssociation dc�cume7it�:
��'hile nc�t directly involved in the creation ofthe documents. the`l�own ren���ii1s interesied
in ensurin� ttiat all property o��mers are fairly treated and in n� ��•a�cc�ndones; unintencle�i
or othen�-ise, thz abuse of t)�e anti of the Colorado's state statuies.
^q'. .�� � .. ,
� �l�ain, lhank��ou for ti our letter e.�}�ressing several areas oi concern with re�ards to the �
�" ' � 1�nabelle at �'ail Square project in Lionshead. It���as truh°apleasure mcetin��;7th }.ou
�id�evei-al other o�i�ncrs at the ��-raL�ell�at Vail Square project. Sl�c�uld you ha�°e any
aciditic�nal �tiestions or concerns. plzase do not htsitate to call or���rite.
Sincerzlti�,
� !�(c.�e,.,'Lt�-'�u`.t..�i�j
<:.� :
� � George�RuCller, tIICP� � �
Director of Community Development
_I'o���l i��:<<ail
h Cc: l�latt :�1ire,To���n t�ttorne�-
�'ail Tc�«�n Cotincil
4
, .
1. Merriam-Webster online dictionary Main Entry: valet parking
Function: noun : a service that provides parking of motor vehicles by an attendant.
2.Definition of valet parking noun from the Cambridge Advanced Learner's Dictionary
valet parking noun [U] the service offered by a restaurant, hotel, etc. of putting your car
in a parking space
3. Longman Dictionary Contemporary English
valet parking also valet service [uncountable]American English the service of having
someone else park your car for you at a restaurant, hotel etc
nggr
+n+
n++++
-F++++++� � � ��-r�-r-rTT-T-r�-++
-I-�--I-�-�--f-�--I-
nbb
Sterling Codifiers,Inc. 11/18/09 3:07 PM
Chapter 5
PARKING LOT AN�} PARKING STRUCTURE DESIGN
STANDARDS FOR ALL USES
14-5-1 : MINIMUM STANDARDS:
This section (table 5) specifies the parking lot standards for all uses excluding residential uses
under three (3) units and including, but not limited to, commercial, retail, office, restaurant,
institutional, hotel, accommodation, and multiple-family development. These standards are subject
to all conditions and exceptions described herein. These standards shall be considered the
minimum standards. When two (2) or more standards conflict the more restrictive standard shall
aPP�Y-
TABLE 5
PARKING LOT DESIGN STANDARDS
Minimum Minimum
Angle Of One-Way Two-Way Minimum Parking Statl
Parking Space Drive Aisle Drive Aisle Size And Clearance
0° (parallel) 12' 22' 9' x 24'
45° 14' 22' 9' x 19' surface
� 9' x 18' enclosed
8' x 16' compact (up to 25% of required parking
in lots with more than 15 parking spaces and
clearly marked as such)
�— ( —�� 7' height clearance for enclosed parking
�60° 16' 24' 9' x 19' surface
�_ 9'x 18' enclosed
8' x 16' compact (up to 25% of required parking
in lots with more than 15 parking spaces and
clearly rnarked as such)
7' height clearance for enclosed parking
75° 19' 24' 9' x 19' surface
9' x 18`enclosed
8' x 16' compac# (up to 25% of required parking
in lots with more than 15 parking spaces and
clearly marked as such)
http://www.sterlingcodifiers.com/codebook/index.php?book_id=560 Page 1 of 4
. ,
Sterling Codifiers,Inc. 11/18/09 3:07 PM
� � �7' height clearance for enclosed parking [
90° 24' 24' 9' x 19' surface �
9' x 18' enclosed �
8' x 16' compact (up to 25% of required parking �
in lots with more than 15 parking spaces and
clearly marked as such)
7' height clearance for enclosed parking
Crossover drive 17' 30' n/a
aisle
Drive aisle with 12' 22' n/a
no parking
Minimum 12' 20' n/a
opening for a
parking
structure
entrance
(Ord. 28(2007) § 15: Ord., 9-21-1999)
14-5-2: OTHER REQUIREMENTS:
A. Surfacing: All parking areas shall be an improved paved surface.
B. On Street Parking: On street parking is not permitted for private developments. All public on
street parking provided in the right of way shall meet the standards included in this chapter
(table 5).
C. Location: Parking spaces, aisles and turning areas shall be entirely within lot lines and shall not
encroach on any public right of way. No parked vehicle shall overhang any public right of way.
D. Grades: All driveway and parking lot grades shall meet the requirements for "multiple-family
developments of more than 11 units" per table 1, "Driveway/Feeder Road Standards", section
14-3-1 of this title.
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E. Fire Lane: A fire lane shall be required and must be located within one hundred fifty feet (150') of
all areas of the parking lot.
F. Drainage: Proper drainage and storm water management shall be provided in all parking areas.
G. Snow Storage: All required parking and access areas shall be designed to accommodate on site
snow storage (i.e., within boundaries of lot and not within the right of way). A minimum
functional area equaling thirty percent (30%) of the paved area shall be provided contiguous to
the paved area and designed to accommodate snow storage. Turf areas and other areas
without trees may be utilized for this purpose. If driveways are heated, then the minimum snow
storage area may be reduced to ten percent (10%) of the required parking and access areas.
H. Landscaping: Not less than ten percent (10%) of the interior surface area of unenclosed off
street parking areas containing fifteen (15) or more parking spaces shall be devoted to
landscaping. In addition, landscape borders not less than ten feet (10') in depth shall be
provided at all edges of parking lots containing thirty (30) or more parking spaces. A landscape
berm, wall, or fence of not less than four feet (4') in height, of the same architectural style as
the building, in combination with landscaping may be substituted for the landscape border. In
developments with cross access or shared parking facilities, the landscape border between the
developments shall not be required.
I. Backing Into The Street/Right Of Way: All parking for commercial and multiple-family
developments shall be designed to allow a vehicle forward access to any street or right of way.
J. Trailhead Parking: Trailhead parking lots accommodating up to fifteen (15) parking spaces may
be improved with gravel, but shall adhere to all other requirements contained in this chapter.
K. Valet Parking: Valet parking shall be allowed, but shall not exceed fifty percent (50%) of the
required parking on site. Valet parking shall be calculated utilizing an eight foot by eighteen foot
(8' x 18') parking space for e�ch car (parallel spaces must be 9 feet x 20 feet). Cars may be
parked up to four (4) cars deep in a valet lot stacked in a manner in which any vehicles that may
have to be temporarily moved by a valet to gain access to another vehicle can be temporarily
parked in a location that does not block public drive/pedestrian aisles or a designated parking
space.
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L. Tandem Parking: Tandem parking is not permitted for commercial uses unless approved as valet
parking.
M. Parking Structure Ramp Grades: Table 6 (below) outlines requirements for cross slope, ramp
grade, and centerline grade break in parking structures.
TABLE 6
PARKING STRUCTURE RAMP GRADES
Parking Structure Maximum Maximum Maximum
Ramp Type Parking Ramp Centerline
Space Cross Grades Grade Break
Slope
Passenger vehicle only and internal to 6% 14% 8%
structure
Passenger vehicle only and external (exposed 6% Unheated 8%
to weather) 9%
Heated �
12%
Commercial/loading and delivery 6% Unheated 6%
9%
Heated
12%
(Ord. 28(2007) § 16: Ord., 9-21-1999)
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14-2-1 : DEFINITIONS OF WORDS AND TERMS:
Definitions not provided herein shall be as defined in title 12, "Zoning Regulations", and title 13,
"Subdivision Regulations", of this code.
AASHTO: American Association of State Highway and Transportation Officials.
ACCESS GRADE: The slope of a road, street, driveway, or other means of access, as measured
from the back side of pan along the centertine of the means of access. Grade shall be measured in
increments of twenty (20) horizontal feet.
ACCESS GRADE CHANGE: The algebraic sum of the difference of two (2) separate grades.
ARCHITECTURAL PROJECTION INTO SETBACK: Distance which an architectural projection
(i.e., roof eave) may encroach into setback.
BMPs: Best management practices, which are accepted industry standards.
BACKOUT/TURNAROUND AREA: An area appropriately designed for a vehicle to back out and
turn around in a driveway or feeder road so that the vehicle can enter the public street facing
forward.
BATTER: The slope of the face of a retaining wall measured in units horizontal to units vertical.
BOULDER RETAINING WALLS: Retaining walls that use boulders as the means to structurally
retain the earth.
BUILDIN� CODE: The uniform building code, as published by the International Conference of
Building Officials, 5360 Workman Mill Road, Whittier, CA 90601-2298.
BUILDING HEIGHT: The distance measured vertically from any point on a proposed or existing
roof or eave to the existing (natural) or finished grade (whichever is more restrictive) located
directly below said point of the roof or eave. Within any building footprint, height shall be measured
vertically from any point on a proposed or existing roof to the existing grade directly below said
point on a proposed or existing roof.
BUILDING SETBACKS: A line or location within a lot or site which establishes the permitted
location of uses, structures, or buildings on a lot.
CPESC: Certified professional in erosion and sediment contt'o1.
COLORADO DISCHARGE PERMIT SYSTEM (CDPS): State of Colorado regulation (5 CCR 1002-
61) and as amended which covers discharges from specific types of industries including
construction sites, and storm sewer systems for municipalities as part of the water quality control
division (division) under the Colorado department of public health and environment (CDPHE).
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COMBINATION RETAINING WALL: A series of multiple retaining walls acting as one wall
structurally.
CONSTRUCTION ACTIVITY: Includes clearing, grading and excavation activities. Construction
does not include routine maintenance performed by public agencies, or their agents to maintain
original line and grade, historical hydraulic capacity, or original purpose of the facility.
CRITICAL ROOT ZONE: Area critical to existing vegetation to ensure its existence.
CROSSOVER (SWITCHBACK OR 90 DEGREE TURN): The area on a driveway where the turning
angle of the centerline of the driveway curvature is ninety degrees (90°) or greater.
CROSSOVER AISLE: The drive aisle where a ninety degree (90°) or greater turn is required by a
vehicle to change drive aisles.
CURB CUT: The location where a driveway, parking area, or feeder road connects to a public
street or feeder road.
DECK SETBACK (Ground Level): A line or location within a lot or site which establishes the
permitted location of an at grade (within 5 feet of grade) deck or patio on a lot.
DECK SETBACK (Not Ground Level): A line or location within a lot or site which establishes the
permitted location of an above grade (greater than 5 feet above grade) deck or balcony on a lot.
DEFENSIBLE SPACE: An area around structures where nonfire wise plant material capable of
causing a fire to spread have been modified, cleared, or reduced to act as a barrier between an
advancing fire and resources or lives at risk.
DEMO/REBUILD: The destruction, demolition, or removal of fifty percent (50%) or more of the
gross residential floor area of an existing dwelling unit or structure. The determination of the fifty
percent (50%) shall be calculated upon "gross residential floor area" as defined in title 12, "Zoning
Regulations", of this code.
DENSITY: The number of dwelling units allowed per lot or the number of dwelling units allowed per
acre.
DESIGN REVIEW BOARD (DRB): The body responsible for reviewing development proposals in
the town of Vail. The DRB focuses on evaluating projects based on this code, master plans, and
the design standards as set forth in this code, including architectural design, site planning,
landscaping, site disturbance, etc., and as established pursuant to title 3, chapter 4 of this code.
DEVELOPMENT: All activities involving earth disturbance and requiring a building or grading
permit, including, but not limited to, commercial or industrial developments, single- or multi-family
housing, construction of structures, roads and driveways, and installation of utilities.
DISTURBED AREA: That area of the land's surface disturbed by any work or activity upon the
property by means including, but not limited to, grading; excavating; stockpiling soil, fill, or other
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materials; clearing; vegetation removal; removal or deposit of any rock, soil, or other materials; or
other activities which expose soil. Disturbed area does not include the tillage of land that is zoned
for agricultural use. It also does not include performance of emergency work necessary to prevent
or ameliorate an immediate threat to life, property, or the environment. Any person performing such
emergency work shall immediately notify the town engineer of the situation and the actions taken.
The town engineer may, however, require such person to obtain a storm water quality permit to
implement remedial measures to minimize erosion resulting from the emergency.
DRAINAGE: Surface water runoff or the removal of surface water or ground water from land by
drains, grading or other means, which include runoff controls to minimize erosion and
sedimentation during and after construction or development.
DRAINAGEWAY: Any natural or artificial stream, swale, creek, river, ditch, channel, canal or other
open intermittent watercourse.
DRIVEWAY: A paved all weather driving surface on private property which provides access to
three (3) or fewer dwelling units (including EHUs). Driveways generally provide access to individual
dwelling units.
DRIVEWAY PAN: A concrete drainage structure which conveys water; located where a driveway or
feeder road connects with the public street.
DWELLING, MULTIPLE-FAMILY: A building containing three (3) or more dwelling units, including
townhouses, row houses, apartments, and condominium units; designed for or used by three (3) or
more families, each living as an independent housekeeping unit.
DWELLING, SINGLE-FAMILY: A detached building designed for or used as a dwelling exclusively
by one family as an independent housekeeping unit.
DWELLING, TWO-FAMILY: A detached building containing two (2) dwelling units, designed for or
used as a dwelling exclusively by two (2) families, each living as an independent housekeeping
unit.
DWELLING UNIT: Any room or group of rooms in a single-family, two-family or multiple-family
building with kitchen facilities; designed for or used by one family as an independent housekeeping
unit. A dwelling unit in a multiple-family building may include one attached accommodation unit no
larger than one-third (1/3) of the total floor area of the dwelling.
EHU: An employee housing unit as defined in title 12, "Zoning Regulations", of this code. For the
purpose of driveway, parking, and access standards, an EHU shall be considered a dwelling unit.
ENTRY ANGLE: The angle created at the intersection of the centerline of the public roadway and
the centerline of the first thirty feet (30') of feeder road or driveway.
EROSION: The process by which the ground surface is worn away by action of wind, water,
gravity, or a combination thereof.
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EROSION AND SEDIMENT CONTROL PLAN: A plan to minimize erosion and on site
sedimentation resulting from construction activities. The plan should include detailed information
about the site; planned construction activities and best management practices (BMPs) to
implement that can minimize on site erosion and transport of sediment off site during construction.
EXPOSED FACE: The area of a wall exposed from the finished grade line to the top of the wal{.
The cumulative exposed bench face of combination walls.
FEEDER ROAD: A paved all weather road or driveway on private property which accesses four (4)
or more dwelling units (including EHUs). Driveways to individual dwelling units generally connect to
the feeder road.
FENESTRATION: The design and placement of windows in a building.
FINAL STABILIZATION: When all soil disturbing activities at the site have been completed, and
uniform vegetative cover has been established with a density of at least seventy percent (70%) of
predisturbance levels, or equivalent permanent, physical erosion reduction methods have been
employed. For purposes of this section, establishment of a vegetative cover capable of providing
erosion control equivalent to preexisting conditions at the site is considered final stabilization.
FIRE CODE: The uniform fire code, as published by the International Fire Code Institute, 5360
Workman Mill Road, Whittier, CA 90601-2298.
FIRE WISE PLANT MATERIALS: As outlined in the latest version of Colorado state forest service
publication #6.305, "FireWise Plant Materials".
FRONTAGE: The portion of a lot which fronts on a public or private street.
GUARDRAILS: A rail placed on the edge of a roadway, on bridges, driveways, etc., as a safeguard
against vehicular egress of said roadway.
HEATED DRIVES: Driveways which have subterranean heat producing mechanisms to aid in
melting snow and ice.
LAND DISTURBING ACTIVITIES: Any mechanical activity which alters the surface of the earth and
exposes the same to the elements of wind, water, or gravity. Land disturbing activities include
grading, filling, excavating, and soil storage. Agricultural activities are exempt from this definition.
LANDSCAPE AREA: The area of a site not covered by buildings, driveways, and covered
walkways. Core development (hardscape) such as walks, decks, patios, terraces, water features,
and like features shall also be considered landscape area as long as they do not exceed twenty
percent (20%) of the landscape area.
LANDSCAPING: Planted areas and plant materials, including trees, shrubs, lawns, flowerbeds and
ground cover, together with core development such as walks, decks, patios, terraces, water
features, and like features not occupying more than twenty percent (20%) of the landscaped area.
For the purposes of this title, natural or significant rock outcroppings, trees or native vegetation
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shall be deemed landscaping in hillside residential, single-family residential, primary/secondary
residential, two-family residential, residential cluster, and low density multi-family zone districts.
LOT OR SITE: A parcel of land occupied or intended to be occupied by a use, building, or structure
under the provisions of title 12, "Zoning Regulations", of this code, and meeting the minimum
requirements of title 12 of this code. A lot or site may consist of a single lot of record, a portion of a
lot of record, a combination of lots of record or portions thereof, or a parcel of land described by
metes and bounds.
LOT SIZE: The required size of a buildable lot or site.
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4): A system of conveyances owned and
operated by the town of Vail used in the collection, treatment or disposition of storm, flood or
surface drainage waters, including manmade structures and natural watercourses and/or
floodplains for the conveyance of runoff, such as detention or retention areas, berms, swales,
improved watercourses, channels, bridges, gulches, streams, rivers, gullies, flumes, culverts,
gutters, pumping stations, pipes, ditches, siphons, catch basins, inlets, pumping plants and other
equipment and appurtenances and all extensions, improvements, remodeling, additions and
alternations thereof; and any and all rights or interests in such stormwater facilities, and which is
not used for collecting or conveying sewage.
OSHA: Occupational safety and health administration. A regulatory office of the U.S. department of
labor.
100-YEAR FLOODPLAIN: The area adjoining a river, stream, or watercourse covered by water in
the event of a flood, having a one percent (1%) chance of being equaled or exceeded in magnitude
in any given year.
OPERATOR: The individual who has day to day supervision and control of activities occurring at
the construction site. This can be the owner, the developer, the general contractor or the agent of
one of these parties, in some circumstances. It is anticipated that at different phases of a
construction project, different types of parties will satisfy the definition of an "operator" and the
pertinent portions of any applicable state of Colorado permit will be transferred as the roles change.
ORDINARY HIGH WATER MARK: The line between upland and bottomland which persists through
successive changes in water levels, below which the presence and action of the water is so
common or recurrent that the character of the land is marked distinctly from the upland and is
apparent in the soil itself, the configuration of the surface of the soil and the vegetation. On an
inland lake which has a level established by law, it means the high established level. Where water
returns to its natural levels as the result of the permanent removal or abandonment of a dam, it
means the natural ordinary high water mark.
PE STAMPED DESIGN: A design that is stamped, signed, and dated by a professional engineer.
PERMANENT SLOPE PROTECTION MEASURES: Used on slopes to permanently stabilize the
slope and prevent erosion.
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PERMANENT SOIL EROSION CONTROL MEASURES: Those control measures which are
installed or constructed to control soil erosion and which are maintained after completion of all
grading and earth disturbance activities.
PLANNING AND ENVIRONMENTAL COMMISSION (PEC): The body responsible for reviewing
development proposals or any matters pertaining to the commission as provided by law, resolution,
or ordinance, and to act in an advisory capacity to the town council. The planning and
environmental commission focuses on evaluating projects based on the zoning ordinance, master
plans, subdivision regulations, environmental concerns, etc., and as established pursuant to title 3,
chapter 2 of this code.
POINT SOURCE: Any discernible, confined and discrete conveyance from which pollutants are or
may be discharged. Point source discharges of stormwater result from structures (e.g., roofs,
roads, sidewalks, parking lots, etc.) which increase imperviousness of the ground which acts to
collect runoff, with runoff being conveyed along the resulting drainage or grading pattern.
PROFESSIONAL ENGINEER (PE): A current state of Colorado registered professional engineer,
practicing in their known expertise.
PROPERTY OWNER: The record owner of the property or properties, who is the responsible party
for the town of Vail stormwater quality permits.
PUBLIC WAY: Any public street, easement, right of way, highway, alley, way, place, road or bike
path, and any nonexclusive utility easement.
RECEIVING WATER: Any water of the state of Colorado into which stormwater related to
construction activities discharges.
RETAINING WALL: Any slope greater than one to one (1 :1).
RIDGE: The uppermost, horizontal external angle formed by the intersection of two (2) sloping roof
planes.
RIPARIAN ZONE: The area located between the water's edge of aquatic ecosystems (rivers,
streams, lakes, ponds, springs and seeps) and upland areas, whose soils allow for or tolerate a
high water tablE, and provide sufficient moisture in excess of that otherwise available locally so as
to provide a more moist habitat than that of contiguous floodplains and uplands. Riparian areas are
composed of interacting assemblages of plants, animals and aquatic communities whose presence
is either directly or indirectly attributed to water influenced or water related factors. Riparian areas
produce a diversity of vegetative forms, sizes and species and a density of vegetation that makes
them among the most productive habitats for wildlife. Areas exempt from this definition are
manmade agricultural structures and devices such as irrigation ditches, sprinklers, and artificial
ponds, except when mitigation requires creation or replacement of wetlands and/or riparian areas.
ROOF ASSEMBLY: A system designed to provide weather protection and resistance to design
loads. The system consists of a roof covering and roof deck or a single component serving as both
the roof covering and roof deck. A roof assembly includes the roof deck, vapor retarder, substrate
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or thermal barrier, insulation, vapor retarder and roof covering.
ROOF COVERING: The covering applied to the roof deck for weather resistance, fire classification,
or appearance.
SATELLITE DISH ANTENNA: A parabolic or dish shaped antenna designed to receive radio
waves.
SETBACK: The distance from a lot or site line, creek or stream measured horizontally to a line or
location within the lot or site, which establishes the permitted location of uses, structures, or
buildings on the site.
SETBACK AREA: The area within a lot or site between a lot or site line and the corresponding
setback line within the lot or site.
SETBACK LINE: A line or location within a lot or site which establishes the permitted location of
uses, structures, or buildings on the site.
SETBACK LINE, FRONT: The setback line extending the full width of the site parallel to and
measured from the front lot or site line.
SETBACK LINE, REAR: The setback line extending the full width of the site parallel to and
measured from the rear lot or site line.
SETBACK LINE, SIDE: The setback line extending from the front setback line to the rear setback
line parallel to and measured from the side lot or site line.
SIGHT DISTANCE TRIANGLE: The line of sight to the right and left of a driver sitting in a car three
feet (3') above the driveway or access road preparing to enter the public road. The driver must be
able to see two hundred fifty feet (250') in either direction to an object three feet (3') above the
asphalt of the public road in the oncoming lane.
SITE COVERAGE: The ratio of the total building area on a site to the total area of a site,
expressed as a percentage. For the purpose of calculating site coverage, "building area" shall
mean the total horizontal area of any building, carport, porte-cochere, arcade, and covered or
roofed walkway as measured from the exterior face of perimeter walls or supporting columns above
grade or at ground level, whichever is the greater area. For the purposes of this definition, a
balcony or deck projecting from a higher elevation may extend over a lower balcony, deck or
walkway, and in such case the higher balcony or deck shall not be deemed a roof or covering for
the lower balcony, deck or walkway. In addition to the above, building area shall also include any
portion of a roof overhang, eave, or covered stair, covered deck, covered porch, covered terrace or
covered patio that extends more than four feet (4') from the exterior face of the perimeter building
walls or supporting columns.
SLOPE: Shall be established by measuring the maximum number of feet in elevation gained or lost
over each ten feet (10') or fraction thereof ineasured horizontally in any direction between opposing
lot lines; the relationship of elevation or vertical measure as divided by the horizontal measurement
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shall be expressed as a percentile as a means of quantifying the term "slope". In determination of
"slope" as defined herein, for use in establishing buildable area requirements and maximum floor
area ratio limitations on existing and proposed lots, a grid system based on ten foot (10') modules
shall be superimposed on a topographic map of the subject property and the lot slope
determination established by the defined method for each one hundred (100) square foot grid
portion of the tract, lot or portion thereof.
A. Existing, natural: The gradient or configuration of the undisturbed land surface prior to site
improvement of a lot, site, or parcel.
B. Graded, finished: The gradient or configuration of the land surface following improvement of
a lot, site, or parcel.
SPILL: An unintentional release of solid or liquid material which may cause pollution of the MS4 or
waters of the state.
SQUARE AREA: The area required to be accommodated completely within a lot's boundaries in
order for the lot to be buildable; expressed as a square.
STAGING AREA: A dedicated or designated space that is intended for use by the fire department,
sufficiently large enough to provide for adequate operation.
STORMWATER: Any surface flow, runoff, and drainage consisting entirely of water from any form
of natural precipitation, and resulting from such precipitation.
STORMWATER MANAGEMENT PLAN (SWMP): A written plan to minimize pollutants in
stormwater discharged from construction sites as required under the Colorado discharge permit
system (CDPS) general permit for stormwater discharges associated with construction activity.
This plan includes a site description and map, identifies best management practices for
implementation at the site and identifies maintenance and inspection requirements for these best
management practices.
STORMWATER QUALITY CONTROL PLAN: A plan to control pollutants transported in stormwater
prior to pollutants entering waterbodies. Stormwater quality control plans in the context of these
regulations refer to postdevelopment stormwater flows, rather than stormwater flows under
construction conditions. Stormwater quality control plans should be based on best management
practices (BMPs) such as avoiding direct discharge into waterbodies, minimizing directly connected
impervious area, use of detention ponds, and other BMPs.
STREET, PRIVATE: Any street not dedicated to the public for purposes of vehicular or pedestrian
use.
STREET, PUBLIC:
A. The entire width between the boundary lines of every way publicly maintained when any part
thereof is open to the use of the public for purposes of vehicular or pedestrian travel;
B. The entire width of every way declared to be a public highway by any law of this state; and
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further classified and defined as foilows:
1. Arterial Streets: Those which permit the relatively rapid and unimpeded movement of large
volumes of traffic from one part of the community to another.
2. Collector Streets: Those which collect traffic from minor streets and carry it to arterial
streets or to local traffic generators. Collector streets include the principal entrance streets
to a residential development, those linking such adjacent developments, and those streets
providing circulation within such developments.
3. Minor Streets: Those used primarily for direct access to properties abutting the right of
way. Minor streets carry traffic having an origin or destination within the development and
do not carry through traffic.
TEMPORARY GRADING: Grading performed to accommodate construction.
TEMPORARY SLOPE PROTECTION MEASURES: Used on slopes to reduce erosion and assist in
reestablishing vegetation.
TEMPORARY SOIL EROSION CONTROL MEASURES: Interim control measures which are
installed or constructed and maintained whenever grading or other earth disturbance is to occur for
the purpose of soil erosion control until permanent soil erosion control is effected.
THREE POINT TURN: The ability to completely turn a vehicle using a maximum of four (4)
movements which creates the three (3) points when the total turning movement is laid out.
TOPOGRAPHIC SURVEY: A study conducted that produces a map of a lot or lots showing
elevation from some fixed reference point.
VALET PARKING: A service provided with or without a fee where vehicle is dropped at a
designated location and an employee drives said vehicle to a parking space.
VALLEY: The internal angle formed by the intersection of two (2) sloping roof planes.
WETLANDS: As determined by the army corps of engineers or qualified environmental consultant,
those areas that are inundated or saturated by surface or ground water at a frequency and duration
sufficient to support and that under normal circumstances do support, a prevalence of vegetation
adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs
and similar areas. For purposes of these regulations wetlands do not include areas that are
saturated solely by the application of agricultural irrigation water. Manmade lakes and ponds built
for the purpose of detaining runoff are not considered wetlands in the context of these regulations.
(Ord. 3(2008) § 2: Ord. 28(2007) § 11 : Ord. 27(2007) § 2: Ord. 3(2007) § 2: Ord_ 29(2005) § 79:
Ord., 9-21-1999)
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14-1-1 : PURPOSE AND INTENT:
It is the purpose of these rules, regulations, and standards to ensure the general health, safety,
and welfare of the community. These rules, regulations, and standards are intended to ensure safe
and efficient development within the town of Vail for pedestrians, vehicular traffic, emergency
response traffic, and the community at large. The development standards will help protect property
values, ensure the aesthetic quality of the community and ensure adequate development of
property within the town of Vail. (Ord. 29(2005) § 78)
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Case 1:09-cv-02081-JLK Document 1 Fited D8/31/20�9 USDC Colorado Page 1 of 22, ^
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.
NELSON STONE, M.D., and
STONE FAMILY LLC, a New York Limited Liability Company,
individually and on behalf of all others similarly situated,
Plaintiffs,
vs.
VAIL RESORTS DEVELOPMENT COMPANY, a Colorado corporation, and
�1RRABELLE AT VAIL SQUARE, LLC, a Colorado Limited Liability Company,
Defendants.
CLASS ACTION COMPLAINT AND JURY DEMAND
As part of the purchase of his condominium, Plaintiff Nelson Stone, M.D., sole
shareholder of Stone Family LLC (collectively "Plaintiff'), was promised assigned parking that
would be located near the entry point of his condominium in a development known as Arrabelle
At Vail Square ("Arrabelle"). This promise was made in writing by Vail Resorts Development
Company ("VRDC") in sales literature and in the contract negotiated with VRDC. Instead of
honoring those representations and promises, however, VRDC secretly eliminated the assigned
parking rights and substituted instead, without notice or permission and in contravention of the
contract, a document providing for valet parking of much lesser value.
, Case 1:09-cv-02081-JLK Document 1 Filed 08/31/2009 USDC Colorado Page 2 of 22
NATURE OF THE ACTION
1. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23 on behalf of all initial
purchasers of condominium units in Arrabelle (as outlined in the class definition), the project
developed by VRDC. During its sales efforts, VRDC represented to all prospective purchasers
that certain "services and amenities" would be provided or conveyed to any purchaser of each
condominium unit contemplated within the development. Ex. 1 (Arrabelle At Vail Square Hotel
Services And Amenities Available To Residence Owners And Their Guests). Among the
included"services and amenities" described in writing was "assigned underground parking" that
would "be located...near an elevator convenient to your residence wing." Ex. 2 (Arrabelle at
Vail Square Closing Process and General Questions and Answers). Despite expressly promising
during the sales process "assigned" parking "located . . .near" a purchaser's wing, VRDC,
intentionally and without notice, altered the final, recorded documents related to the purchasers'
Arrabelle units, and switched assigned parking to a "license" to use a "valet service" provided
exclusively by VRDC. The valet parking "license" actually conveyed to class members by
VRDC is materially different from and less valuable than the promised "assigned underground
parking"that VRDC had promised and contracted to provide, and for which class members paid.
Class members have therefore been damaged by VRDC's fraudulent, deceptive and misleading
bait-and-switch tactics and breach of its contractual obligations.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1332 and
1441, since this is a civil action involving citizens of different states and the amount in
controversy exceeds $75,000.
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3. Venue is proper in this district pursuant to 28 U.S.C. § 1391, as Defendant VRDC
is a Colorado Corporation, and Defendant Arrabelle at Vail Square, LLC, is a Colorado Limited
Liability Company, and the matters complained of herein occurred in Colorado, including
without limitation the preparation of the marketing materials provided to Association members,
the Purchase Agreement forms, and the altered documents recorded prior to the actual sale of the
condominium units.
PARTIES
4. Plaintiff Nelson Stone is and was at all relevant times a resident of the State of
New York, is the person who received the representations from Defendants described in this
Complaint and made the decisions described herein, and is, through his ownership of Stone
Family LLC, the purchaser of an Arrabelle unit and a member of Arrabelle At Vail Square
Homeowners Association, Inc. (the "Association"), which consists of approximately 66
members, all of whom are owners of condominium units within Arrabelle.
5. Plaintiff Stone Family LLC is a closely held New York Limited Liability
Company of which Nelson Stone is the sole shareholder.
6. VRDC is and was at all relevant times a Colorado corporation, with its principal
place of business located at 390 Interlocken Crescent in Broomfield, Colorado. VRDC is in the
business of developing resort properties,with one of its recent projects being the Arrabelle.
7. Arrabelle At Vail Square, LLC is and was at all relevant times a Colorado
Limited Liability Company, with its principal place of business located at 450 E. Lionshead
Circle, Vail, CO 81657. Arrabelle At Vail Square, LLC is a wholly owned subsidiary of VRDC
and controlled by VRDC.
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FACTUAL ALLEGATIONS
8. In approximately 2002, VRDC began planning a project known as "Vail's New
Dawn," for the purpose of redeveloping the resort properties in an area in the Town of Vail
formerly known as Lionshead.
9. As part of the Vail's New Dawn redevelopment effort, VRDC initiated a building
project it named "Arrabelle At Vail Square" located in the Town of Vail, Colorado, which was
contemplated from the outset to contain both luxury hotel and condominium elements.
10. During its sales efforts of the planned condominium units, VRDC represented to
prospective purchasers, including Plaintiff and class members, that certain "services and
amenities" would be provided, including, as described in writing, "assigned underground
parking." Ex. 1 ("Arrabelle At Vail Square Hotel Services And Amenities Available To
Residence Owners And Their Guests").
11. Permanent assigned parking is a valuable commodity in VaiL For example, a
parking space in the Vail Founders Parking Garage, located in Vail Village, retails for $380,000.
See http://blog.vailpropertysearch.com/vail-parking-founders-garage-vail-mountain-club-valet/
(last visited August 31,2009).
12. At the time VRDC represented that Plaintiff and class members would receive a
parking easement including permanent allocated parking, under the Town of Vail municipal
code, the Arrabelle project could not have its valet parking use exceed 50% of the required on-
site parking. Vail Town Code, section 14-5-2(K). Upon information and belief, VRDC
represented to the Town of Vail that the class members would be provided with assigned
parking.
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13. During the years 2004-2008, Plaintiff and all of the class members were provided
with written solicitations and marketing materials about the Arrabelle project, which were
identical, or substantially identical, in all material respects. Based on the representations
contained in those materials, Plaintiff and class members agreed to purchase Arrabelle
condominium units by executing a "Reservation" agreement and providing a $100,000 non-
assignable (and partially non-refundable) "Reservation" payment. Ex. 3 (Reservation
Agreement).
14. Beginning on or about April 15, 2005, after making the Reservation payment, but
prior to the commencement of construction of the Anabelle condominium units, Plaintiff and
class members were required to execute a "Purchase Agreement" and concurrently provide an
additional payment of"Earnest Money." Ex. 2 (Arrabelle at Vail Square Closing Process and
General Questions and Answers).
15. In soliciting payment of the "Eamest Money" and execution of the "Purchase
Agreement," VRDC provided Plaintiff and all class members with the following description of
the parking anangement included with the purchase of an Arrabelle condominium unit:
How many parkin� spaces will I have? Residences and Penthouses with two
and three bedrooms will have use of one parking space. Those with four or more
bedrooms will have use of two parking spaces arranged in a tandem fashion.
Where will mv parkin� space(s) be? IUthey will be located on the upper
parking level, near an elevator convenient to your residence wing.
Where will mv �uests park? Guests will use valet parking.
Id.
16. Defendant VRDC made its representations to hundreds of other persons who
previewed Defendant VRDC's Arrabelle development.
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17. In the Purchase Agreement provided to all class members, VRDC described a
Reciprocal Easements and Covenants Agreement ("RECA") that the "Condominium Project"
would "be subject to and governed by." VRDC provided all class members with a draft of the
RECA.
18. The Purchase Agreement entered into by the parties promised that "the final
version of the RECA will be substantially similar" to the draft provided to all class members. It
also promised that VRDC "will fumish to Purchaser a copy of the final RECA prior to closing."
Ex. 4 (Purchase And Sale Agreement For Arrabelle At Vail Square Residential Condominiums,¶
42). Although another provision purported to reserve the right to revise easements in the RECA,
such a provision did not and could not authorize VRDC to make material revisions which
deprived class members of their rights under the contract or deprived them of the benefit of the
bargain with regard to particular easements; rather, that provision was still subject to the promise
that the final document would be "substantially similar" to the draft RECA provided with the
Purchase Agreement.
19. The draft RECA provided to all class members with their Purchase Agreements
provided that VRDC as Project Owner granted to all class members the following easement:
(ii) Parkin� Easement. A parking easement for the benefit of the
Airspace Lot Owner, its tenants and their respective Permittees to use and occupy
for vehicular parking purposes a total of�94�parking spaces located in the Project
Improvements, the initial location of which is identified on the attached E�ibit C
(the "Allocated Parking"). The Project Owner may relocate the Allocated Parking
from time to time so long as the Allocated Parking continues to be located in the
Project Improvements; provided, however, that the Project Owner may not
relocate those [� parking spaces within the Allocated Parking labeled as
"Permanent Allocated Parking." The Allocated Parking may be used by the
Airspace Lot Owner, its tenants and their respective Pernuttees only at those
times when the Airspace Lot Owner, its tenants and their respective Pernuttees
are in residence within the Airspace Lot. To the extent the Airspace Lot Owner,
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its tenants and their respective Permittees are not in residence within the Airspace
Lot, the Project Owner may use or occupy the Allocated Parking.
Notwithstanding the foregoing, the Airspace Lot Owner may store one vehicle in
each of the parking spaces located in the Permanent Allocated Parking, regardless
of whether in residence within the Airspace Lot so long as the Airspace Lot
Owner leaves keys for such vehicle(s) with the valet for the Project
Improvements.
Ex. 5 (Draft RECA dated April 8, 2005) at p. 5.
20. VRDC solicited and obtained signed Purchase Agreements and received
additional "Earnest Money" funds from 66 class members based on these representations and
assurances, including that the parking easement would be "substantially similar"to the easement
in the draft RECA.
21. However, during or in conjunction with the transfer of the properiy to its wholly
owned subsidiary, Arrabelle at Vail Square, LLC, VRDC secretly altered the parking rights by
unilaterally revising the RECA to eliminate the parking easement and assigned allocated parking.
(Ex. 6,RECA recorded December 31, 2007.)
22. Instead of the assigned parking promised to class members as "a parking
easement for the benefit of [class members]" and further described as "Permanent Allocated
Parking" for all class members as including "the right to store one vehicle in each Permanent
Allocated Parking spot regardless of whether [the Homeowner is] in residence," the revised
RECA allowed only for a "license" to use "valet parking" controlled exclusively by VRDC. Id.
at p. 6.
23. The altered RECA was recorded by VRDC in Eagle County on December 31,
2007, shortly before class members were permitted to begin closing on their Arrabelle units.
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24. Despite the assurance in the Purchase Agreement that VRDC "will furnish to
Purchaser a copy of the final RECA prior to Closing," VRDC did not provide class members
with a copy of the altered, recorded RECA prior to closing. Nor did VRDC advise or inform
class members that the parking rights were materially and dramatically attered.
25. The revised version of parking rights contained in the final RECA were not
substantially similar to the initial RECA, nor consistent with the representations made in the
sales literature and by the sales staff of Defendant VRDC.
26. Plaintiff and class members were not otherwise notified of the elimination of the
"Parking Easement" before or at closings on the Arrabelle units; instead there was only a non-
specific reference to the final RECA at closing, with no indication that the final RECA was not
"substantially similar" to the draft RECA provided to all class members with the Purchase
Agreement, as promised by VRDC in the signed Purchase Agreement.
27. Despite the express promise of"assigned underground parking . . .convenient to
your residence wing" in the marketing and other materials provided to all class members before
their agreement to purchase the condominium units, VRDC instead, intentionally and without
notice to class members, altered the final, recorded documents related to all class members'
condominiums to eliminate the Parking Easement and assigned parking promised to the class
members, leaving them with only a "license" to use a "valet service" provided exclusively by
VRDC. Ex. 6 at p. 6.
28. VRDC also caused the additional cost of valet parking for all class members and
their guests to be charged to class members in the operating expenses covered by Arrabelle
condominium association dues, so that class members are now being forced to pay for valet
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parking services needed only because VRDC breached its agreement to provide class members
with a"Parking Easement"providing them with"Permanent Allocated Parking."
29. VRDC misled all class members by promising "assigned parking" and failed to
adequately disclose or explain material information regarding the change from assigned to valet
parking. VRDC engaged in a course of conduct of soliciting substantial, partially non-
refundable funds for "Reservations" and "Earnest Money" based on these representations, and
then completed the sale of the Arrabelle units to class members without disclosing to class
members that VRDC had materially altered and diminished the parking rights promised by
VRDC in the course of soliciting the purchase of the units.
30. The valet parking "license" described in the recorded RECA is materially
different from and less valuable than the promised"assigned underground parking" and"Parking
Easement" included with the purchase of an Arrabelle condominium that VRDC had promised
and for which class members paid, and class members have therefore been damaged because the
homes they now own are less valuable than represented because they do not include the
promised parking rights; they paid more for these homes than they would have paid had the true
facts been disclosed by VRDC; they are now paying, though their condominium dues, for the
increased labor and associated expense of valet parking related to their own parking needs even
though they were promised assigned parking that did not require valet services; and they have
been and continue to be inconvenienced by not having the promised assigned parking that is
"convenient to [their] residence." Class members have sustained non-pecuniary damages for
mental distress due to VRDC's willful and wanton conduct described herein.
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31. Class members have paid, as part of their Association assessments,monies over to
Arrabelle At Vail Square, LLC, which in part compensate Arrabelle At Vail Square, LLC for
valet parking services. Even under Defendant VRDC's secret RECA language, parking services
were paid for when the properties were purchased by class members. In addition, upon
information and belief, VRDC has received revenues from the use of the spaces allocable to the
class members.
32. Class members cannot be fully compensated at law because of the nature of the
promised Parking Easement. No other real property would be able to provide the same service
and utility, the assigned parking rights VRDC promised to provide were unique and irreplaceable
property rights that enhanced and supported class members' properties, and no alternative
property exists that could provide the same benefit to the class members. Thus, no adequate
remedy at law exists, and specific performance may be directed.
CLASS ACTION ALLEGATIONS
33. This action is brought and may properly be maintained as a class action, as it
satisfies the numerosity,typicality, adequacy,predominance and superiority requirements of Fed.
R. Civ. P. 23. Plaintiff brings all claims herein individually and as representative of a class,
pursuant to Rule 23 of the Federal Rules of Civil Procedure. The requirements of subparts 23(a),
(b)(2) and(b)(3)are met with respect to the class defined below:
All legal entities or persons who purchased directly from Vail Resorts
Development Company a condominium unit in Arrabelle at Vail Square or who
purchased such a condominium based on an assignment from the initial purchaser
that occurred prior to or on the date the initial purchaser was obligated to close
escrow with VRDC. Excluded from the class are Defendants, their respective
parent companies, employees, subsidiaries and affiliates, and the judge presiding
over this case and his or her court staff.
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34. Numerosity. The class includes at least 66 purchasers, and the individual joinder
of each class member would be impracticable because class members reside in a number of
different states as well as outside of the United States.
35. Commonality. This matter presents common questions of law and fact arising out
of VRDC's uniform conduct and written representations made during the sale of the
condominium units and the purchase contracts used by Defendant VRDC and class members.
These common questions predominate over any individual questions applicable to members of
the proposed class. Questions of law and fact common to the proposed class include:
a. whether the uniform marketing materials and written documents prepared
and disseminated by VRDC to class members obligate Defendants to provide
assigned parking to the class instead of a"license"to use"valet parking";
b. whether Defendant VRDC's failure to honor its multiple written
representations that assigned parking spots would be provided to Arrabelle
purchasers violated the Colorado Consumer Protection Act;
c. whether Defendant VRDC purposely and intentionally changed the terms
of the RECA and goveming documents such that the promised assigned parking
easement was materially altered and diminished in value; and
d. whether Defendant VRDC's conduct of changing the terms of the RECA
and other governing documents and referencing the secretly revised documents at
closing, without notice or permission, constitutes fraud and/or violates the
covenant of good faith and fair dealing.
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36. Typicality. Plaintiff has the same interests in this matter as all other members of
the class, and his claims are typical of all members of the class. Plaintiff's claims are coincident
with and not antagonistic to those of other class members he seeks to represent. Plaintiff and all
class members have sustained damages arising out of VRDC's common course of conduct as
outlined herein. The damages of each class member were caused by VRDC's wrongful conduct
37. Adequacy of Representation. Plaintiff is committed to pursuing this action and
has retained competent counsel experienced in class action litigation. Plaintiff will fairly and
adequately represent the interests of the class members. VRDC's actions are generally applicable
to the class as a whole, and Plaintiff seeks, inter alia, equitable remedies with respect to the class
as a whole
38. Common Questions Predominate, and the Class Action Device Is Superior.
The common questions of law and fact enumerated above predominate over questions affecting
only individual members of the class, and a class action is the superior method for fair and
efficient adjudication of the controversy. The likelihood that individual members of the class
will prosecute separate actions is remote due to the time and expense necessary to conduct such
litigation. To Plaintiff's knowledge, no similar litigation is currently pending by other members
of the class. Plaintiff's counsel, highly experienced in class action litigation, foresees little
difficulty in the management of this case as a class action.
39. There are no unusual legal or factual issues which would cause management
problems not normally and routinely handled in class actions. Damages may be calculated from
expert evidence and presented through aggregate proof. Prosecution as a class action will
Class Action Complaint and Jury Demand Page 12 of 22
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eliminate the possibility of repetitious litigation, while also providing redress of claims too small
to support the expense of individual claims.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
Breach of Contract
40. Plaintiff realleges and incorporates the preceding paragraphs as if fully set forth
herein.
41. In response to written solicitations by VRDC, class members entered into
identical or substantially identical (identical in all material respects) written Purchase
Agreements, executed by VRDC and all class members. An example of the Purchase Agreement
is attached to this Complaint as Exhibit 4 and incorporated herein by reference.
42. As part of the negotiation for the Purchase Agreement, Defendant VRDC
negotiated for and received a substantial and partially non-refundable "Reservation" deposit in
the amount of$100,000, as well as a later "Earnest Money"payment equal to ten percent of the
purchase price of the condominium unit.
43. In exchange for these pre-closing payments toward the purchase of the Arrabelle
Unit by class members and the execution by class members of the Purchase Agreement and
payment of the purchase price for each Arrabelle unit, Defendant VRDC agreed, among other
things, to ensure that the final RECA was, at the very least, substantially similar to the draft
RECA and to provide "assigned parking" to every class member in conformance with the RECA
required by the Purchase Agreement.
44. Plaintiff and the class fully performed each and every one of their obligations
under the Purchase Agreements.
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45. VRDC intentionally, materially, and willfully and wantonly breached its Purchase
Agreement with class members by eliminating the parking easement providing assigned parking
in the RECA and instead substituting a "license" to use "valet parking," without notice or
disclosure to class members.
46. The "license" to use "valet parking" varied from the promised parking easement
in material respects, and thus was not "substantially similar" to the rights provided in the draft
RECA, as promised in the Purchase Agreement; and the undisclosed change was a breach of the
agreement.
47. Every contract contains an implied duty of good faith and fair dealing, which
exists "to effectuate the intentions of the parties or to honor theu reasonable expectations." City
of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006).
48. VRDC was required to treat class members fairly and in good faith in executing
and performing under its contracts, including the Purchase Agreement.
49. By expressly representing to class members that the purchase of an Arrabelle unit
would include "assigned underground parking" and "pennanent allocated parking," and then
surreptitiously altering and reducing the promised assigned parking arrangement to a mere
"license" to use "valet parking" even while continuing to describe the parking arrangement as
assigned parking "convenient to your residence," VRDC purposely and unfairly breached its
contractual duty to deal fairly and in good faith with the class members and willfully and
wantonly breached the implied duty of good faith and fair dealing by violating and dishonoring
the class members' reasonable expectations based on VRDC's representations and promises.
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VRDC's actions served to deprive class members of the benefit of the bargain with regard to a
valuable portion of the Purchase Agreement.
50. In addition, by invoicing for and receiving monies from the Association that it
was not entitled to under the contracts between the class and Defendants for valet parking,
Arrabelle At Vail Square, LLC, the successor to VRDC's rights, breached the agreement with
the Class.
51. As a result of the breach of the Purchase Agreement and the breach of the implied
duty of good faith and fair dealing by Defendants, Plaintiff and the class have incurred damages
in an amount to be proven at trial.
SECOND CLAIM FOR RELIEF
Fraud
52. Plaintiff realleges and incorporates the preceding paragraphs as if fully set forth
herein.
53. In the course of offering to sell and completing the sale of the Arrabelle
condominium units to class members, VRDC concealed or failed to disclose material existing
facts. Among other things, VRDC failed to effectively disclose or explain to class members,
despite its deliberate and material alteration and diminishment of the parking arrangement from
"assigned underground parking" to the "license" to use "valet parking," that it had altered the
RECA before recording it to eliminate the "assigned underground parking" that class members
had bargained and paid for.
54. Upon materially modifying the RECA to eliminate the "assigned underground
parking" promised to the class members and before closing, VRDC knew that disclosures
concerning the elimination of the "assigned underground parking" should be made to class
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members and that not disclosing those material facts would create in class members a false
impression.
55. VRDC concealed or failed to disclose these materials facts with the intent of
creating a false impression of the actual facts in the minds of class members.
56. VRDC concealed or failed to disclose these material facts with the intent that
class members would rely and act upon the concealment or failure to disclose by taking a course
of action that class members might not have taken knowing the actual facts.
57. Class members justifiably relied to their detriment on VRDC's concealment or
failure to disclose these material facts. From the date they signed their Purchase Agreements
through the date they closed on their Arrabelle units, the class members believed that they had
agreed to purchase "assigned underground parking" along with their condominium unit, and had
in fact agreed to pay more for their unit based on VRDC's concealment of or failure to disclose
the material facts that the parking rights had been eliminated. Had VRDC disclosed the material
facts to class members before they closed on the purchase of their Arrabelle units,class members
would either have repudiated the Purchase Agreement based on VRDC's breach, or have sought
an appropriate reduction in the purchase price concomitant with the greatly diminished and less
valuable"license"to use"valet parking."
58. VRDC intended that class members act upon the concealment of or failure to
disclose the material facts, and class members did act upon the concealment of the material facts.
59. As a result of VRDC's concealment of or failure to disclose these material facts,
class members have been damaged in an amount to be proved at trial.
THIRD CLAIM FOR RELIEF
Deceptive Trade Practices-Violation of C.R.S. �6-1-105
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60. Plaintiff realleges and incorporates the preceding paragraphs as if fully set forth
herein.
61. The Colorado Consumer Protection Act, C.R.S. § 6-1-101 et seq. ("CCPA"),
prohibits deceptive trade practices in the course of any person's business, vocation, or
occupation.
62. VRDC's actions complained of herein are deceptive trade practices that have the
capacity to and do deceive consumers in that:
a. VRDC knowingly made false representations as to the characteristics,
uses, or benefits of the services and amenities included in the Arrabelle condominium
association dues in violation of the CCPA, specifically C.R.S. § 6-1-105(1)(e), by
representing prior to the execution of the Purchase Agreement that class members would
be provided "assigned underground parking" that was "convenient to your residence";
and
b. VRDC represented, in violation of the CCPA, specifically C.R.S. § 6-1-
105(1)(g), that the parking rights conveyed with the purchase of an Arrabelle
condominium unit were of a particular standard, quality, or grade (i.e., "assigned
underground parking" that was "convenient to your residence"), when VRDC knew or
should have known that the parking rights conveyed were instead of a much lower quality
or value (i.e.,a mere "license"to use"valet parking").
63. VRDC advertised, in violation of the CCPA, specifically C.R.S. § 6-1-105(1)(i),
the Arrabelle condominium units as including "assigned underground parking" that was
"convenient to your residence,"with the intent to sell them not as advertised.
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64. VRDC failed to disclose, in violation of the CCPA, specifically C.R.S. § 6-1-
105(1)(u), material information concerning the Arrabelle condominium units parking rights,
which information was known at the time it completed the final sale of the Arrabelle units, and
such failure to disclose the information (i.e., that the promised "assigned underground parking"
that was "convenient to your residence" had been converted into a mere "license" to use "valet
parking") was intended to induce the class members to enter into the Arrabelle condominium
unit purchase transaction.
65. More generally, VRDC engaged in deceptive trade practices that have the
capacity to and do deceive consumers in violation of the CCPA. In particular, after promising in
the Purchase Agreement that the final RECA would be "substantially similar" to draft provided
to class members, it instead eliminated the "assigned underground parking" promised to class
members in the draft RECA, substituted a "license" of much lesser value in the final RECA, and
caused the final RECA to be recorded without infornung class members that it had changed the
parking arrangement previously represented to them. VRDC implied that the parking
arrangement previously described to class members remained unchanged, because it remained
silent about the altered terms in spite of the promise in the Purchase Agreement that the terms
would be substantially similar. VRDC did not effectively explain this situation and continued to
mislead class members by omitting all information about the change until after the class
members had closed on their purchases of the Arrabelle condominium units.
66. VRDC's aforementioned conduct occurred in the course of VRDC's business and
is part of a generalized course of conduct repeated on hundreds of occasions, and thus has a
significant impact on the public as actual or potential consumers of VRDC's products, services
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or properties. VRDC is a highly sophisticated developer of condominium and other resort
property projects whereas class members are not developers and are not sophisticated in these
practices. In addition, VRDC is a large, multimillion-dollar corporation whereas class members
are individuals or entities merely seeking to purchase resort properties. The actions complained
of herein also have a significant potential to harm consumers in the future because concealing or
failing to disclose material facts incident to the sale of resort properties clearly causes harm to
consumers like the harm caused to class members here.
67. As a result of VRDC's actions, the Class has suffered injury in fact to a legally
protected interest and has been damaged in an amount to be proved at trial, plus any award
provided for by the CCPA.
FOURTH CLAIM FOR RELIEF
Fraudulent Concealment
Plaintiff realleges and incorporates the preceding paragraphs as if fully set forth herein.
68. In the course of offering to sell and completing the sale of the Arrabelle
condominium units to class members, VRDC knowingly concealed or failed to disclose material
existing facts.
69. After class members had received initial representations from and entered into
Purchase Agreements with VRDC but before the closing on the Arrabelle units, VRDC
knowingly concealed or failed to disclose material existing facts by, among other things, failing
to effectively disclose or explain to class members, despite its deliberate and material alteration
and diminishment of the parking arrangement from "assigned underground parking" to the
"license" to use "valet parking" that it had used the altered and recorded RECA to eliminate the
"assigned underground parking"that class members had bargained and paid for.
Class Action Complaint and Jury Demand Page 19 of 22
� C�.se 1:09-cv-02081-JLK Document 1 Filed 08/31/2009 USDC Colorado Page 20 of 22
70. VRDC was aware that these material existing facts regarding the alteration to the
parking agreement were being concealed or not disclosed, and that the class members were
ignorant of the existence of these facts.
71. Upon eliminating the "assigned underground parking" promised to the class
members and before closing, VRDC knew that disclosures concerning the elimination of the
"assigned underground parking" should be made to class members.
72. Class members were ignorant of VRDC's concealment or failure to disclose these
material facts. From the date they made their Reservations and then signed their Purchase
Agreements through the date they closed on their Arrabelle units, the class members believed
that they had agreed to purchase "assigned underground parking" along with their condominium
unit, and had in fact agreed to pay more for their unit based on VRDC's concealment of or
failure to disclose these material facts. Had VRDC disclosed the material facts to class members
before they closed on the purchase of their Arrabelle units, class members would either have
repudiated the Purchase Agreement based on VRDC's breach, or have sought an appropriate
reduction in the purchase price concomitant with the greatly diminished and less valuable
"license"to use"valet parking."
73. VRDC intended that class members act upon the concealment of or failure to
disclose the material facts, and class members did act upon the concealment of the material facts.
74. By viriue of VRDC's concealment of or failure to disclose these material facts,
VRDC afforded itself the means by which to take undue advantage of class members.
75. As a result of VRDC's concealment of or failure to disclose these material facts,
class members have been damaged in an amount to be proved at trial_
Class AcNon Complaint and Jury Demand Page 20 of 22
Case 1:09-cv-02081-JLK Document 1 Filed 08/31/2009 USDC Colorado Page 21 of 22,, ,
PRAYER FOR RELIEF
WHEREFORE,Plaintiff and the class pray for the following judgment:
A. An order certifying this action as a class action pursuant to Fed. R. Civ. P. 23;
appointing Plaintiff Nelson Stone as class representative; and appointing
undersigned counsel as class counsel;
B. At Plaintiff's election, which shall be made before trial commences, either an
order requiring VRDC specifically to perform its agreement to convey and
provide certain parking rights, as outlined in contracts between Defendant VRDC
and class members, or an award to the class of all compensatory damages proven
at trial to be sustained by its members;
C. An order requiring disgorgement of monies collected from class members by
Arrabelle At Vail Square, LLC for valet parking services provided to class
members, and of all profits earned by Defendants from valet services involving
the parking spaces properly belonging to class members;
D. An award of noneconomic damages for frustration and inconvenience resulting
from VRDC's willful and wanton breach;
E. An award of statutory damages and remedies, including attorney's fees, provided
for by the Colorado Consumer Protection Act;
F. An award of compensatory damages for VRDC's breach of the implied covenant
of good faith and fair dealing;
G. An award of interest, attorney's fees, and costs,as may be provided by law, equity
or contract; and
Class Ac6on Complaint and Jury Demand Page 21 of 22
• C�se 1:09-cv-02081-JLK Document 1 Filed 08/31/2009 USDC Colorado Page 22 of 22
H. Such other and further relief as this Court may deem just, equitable or proper.
DATED this 31 st day of August, 2009.
Respectfully submitted,
THE CAREY LAW FIRM
By: s/Lei Garrison
Leif Garrison, #14394
2301 East Pikes Peak Avenue
Colorado Springs, CO 80909
(719) 635-0377—Telephone
(719) 635-2920—Telecopier
Email: lgarrison(a�careylaw.com
Attorney for Plaintiffs Nelson Stone,M.D., and
Stone Family LLC
PLAINTIFF DEMANDS A TRIAL BY A JURY
FOR HIS ACTIONS AT LAW
Plaintiff's Address:
Nelson Stone,M.D.
c/o Carey Law Firm
2301 E. Pikes Peak
Colorado Springs, CO 80909
Class Action Complaint and Jury Demand Page 22 of 22
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Carolynne C.White
Attorney at Law
303.223.1197 tel
303.223.0997 fax
April 20, 2010 cwhite@bhfs.com
Town Council
Town of Vail
75 S. Frontage Road
Vail, Colorado 81657
Ladies and Gentlemen:
On behalf of Arabelle at Vaii Square, LLC ("AVS")this letter is to express support for and urge the Town
Council ("Council")to uphold both the administrative decision of the Community Development
Department for the Town of Vail (the"CDD") set forth in the February 22, 2010 memorandum ("Valet
Parkinq Memorandum") and the decision of the Planning and Environmental Commission for the Town
of Vail (the"PEC")on February 22, 2010 to uphold CDD's interpretation of Section 14-5-2-K of the Town
of Vail Code("Code") in the Valet Parking Memorandum in deciding the March 15, 2010 appeal
("A eal")filed by Mr. Donald Zelkind ("Appellant").
The Valet Parking Memorandum concludes, after substantial review and analysis by the CDD, that
Section 14-5-2-K of the Code does not require that 50% of the required parking spaces in a parking
structure must operate as self-parking. The decisions of the CDD and the PEC are consistent with the
plain meaning of Section 14-5-2-K of the Code, the administrative and legislative history for regulation of
valet parking by the Town of Vail and the longstanding public policy discouraging unnecessary regulation
by public entities over private matters.
The Valet Parking Memorandum correctly interprets Section 14-5-2-K of the Code. The intent of Section
14-5-2-K is not to regulate the number of vehicles which are required to be self-parked or valet parked
within a parking structure. Rather, the intent of Section 14-5-2-K of the Code is to regulate the design
and construction of parking spaces to insure that parking structures adhere to Code requirements
requiring a minimum number of parking spaces for specified land uses. The Code's only reference to
valet parking is in the instance when a builder or developer of a parking structure wishes to construct
parking spaces which are smaller, or arranged in a different configuration than the standard otherwise
required by the Code; in this case, the Code allows up to 50% of the parking spaces to be so modified,
where valet parking is provided.
The Code does not require that parking structures allow users to self park. Nor does the Code require
assignment or designation of specific parking spaces in parking structures to individual users.
Appropriately, neither the Code nor the CDD discourages optimal use of private parking lots by the
owners of those private parking lots.
Properly, the Town of Vail does not regulate the operation or management of private parking lots. The
Town of Vail's code ensures that development sites include sufficient parking spaces to serve their
designated tand use, and ensures that the design and construction of parking spaces serves the general
health, safety and welfare of the general population.
410 Seventeenth Street,Swte 2200� Denver,CO 80202-4432 303.223.1100 tel
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Had either the CDD or the PEC interpreted Section 14-5-2-K as the Appellant suggests it should be
interpreted, the property rights—not to mention day-to-day business operations—of many property
owners in the Town of Vail would be immediately impaired and injured. The CDD recognized this impact
in the Valet Parking Memorandum, stating that"Should appellant prevail in this appeal and the[PEC]
determines that at least 50% of a developmenYs private parking shall operate as self-parking, Staff will
begin enforcement proceedings against all residential, commercial, and multiple use properties providing
valet services to more than fifty percent(50%) of their required parking spaces." Property owners rely on
development and land use regulations—and their consistent interpretation and enforcement by local
government—for predictability and preservation of property values. The Town of Vail, the PEC and the
CDD have consistently interpreted regulation of valet parking to clarify limitations on tandem parking, to
enforce maintenance of unobstructed parking lot drive aisles and to establish design standards for the
construction of valet parking spaces, but past interpretations of the Code have not imposed any
requirement for self-parking in parking structures.
As the Town is aware, based on the Complaint attached to Appeal, a class action lawsuit related to this
issue, among others, is currently pending in federal court. With this appeal, Appellant is improperly
attempting to use the regulatory powers of the Town of Vail to settle a private dispute between certain
owners of residential condominiums at the Arrabelle at Vail Square and AVS.
The CDD's interpretation of Section 14-5-2-K, stating that the intent of the provision is to regulate the
design and construction of valet parking spaces to meet minimum parking space requirements and not to
regulate the operation and management of private parking facilities by requiring that 50% of the required
parking spaces operate as self-parking, is consistent with a plain reading of the Code, the legislative and
administrative history of the Code and sound public policy.
For these reasons, we urge that the Town Council to uphold the prior interpretation of Section 14-5-2-K
by both the CDD and the PEC.
Thank you in advance for your consideration.
Si rely,
Carolynn C. hite