HomeMy WebLinkAbout1993-05-18 Town Council MinutesMINUTES
VAIL TOWN COUNCIL MEETING
MAY 18, 1993
7:30 P.M.
A regular meeting of the Vail Town Council was held on Tuesday, May 18, 1993, in the
Council Chambers of the Vail Municipal Building. The meeting was called to order at 7:30
P.M.
MEMBERS PRESENT: Peggy Osterfoss, Mayor
Mery Lapin, Mayor Pro-Tem
Jim Gibson
Jim Shearer
Rob Levine
TOWN OFFICIAL ABSENT: Bob Buckley
Tom Steinberg
TOWN OFFICIALS PRESENT: Larry Grafel, Acting Town Manager
Pam Brandmeyer, Assistant to the Town Manager
Holly L. McCutcheon, Town Clerk
• The first item on the agenda was Citizen Participation. Hermann Staufer expressed concern
about possible flooding in the Valley, and inquired about the availability of sandbags and
other equipment to handle any flooding emergencies. Larry Grafel advised sandbags and
equipment for trenching were available, and directed the public to contact the Public Works
Department for further information.
Item No. 2 on the agenda was an update and discussion regarding the Vail Valley
Performance and Conference Center (VVP&CC). Before presenting the ideas compiled from
the many committees working on this project, Cliff Gardiner, VVP&CC Steering Committee
Chairman, stated the group was actively soliciting input and none of the ideas presented
were cast in stone. He began his presentation with a statement of the group's vision, "... a
performance center that will provide a year-round venue for the performing arts in the Vail
Valley that meets our high standards of excellence, and a conference center that will help
grow a year-round economy as well as improve occupancy and performance at all times." He
reviewed the goals and history; design plans "A", "B", and "C"; the 93,700 square foot detail
of plan "C"; local conference and theater space comparisons; plan "C"'s estimated construction
cost figures totaling $22,000,000; total estimated project cost figures totaling $25,400,000
including construction costs, bond issuance, and endowment funds; performance center
private funding figures and conference center revenue bond figures; review of the conference
center annual cost showing an annual operating shortfall of $2,078,000 and proposed methods
for raising those dollars annually including (in 1994 dollars) business license fees of $350,000,
a 7/10% tourism tax on attractions, lodging, restaurants, and rental cars for revenue of
$1,057,000, and an 8/10% lodging tax in Vail on all hotels and condominium visits for
revenue of $671,000; and current and proposed taxes and assessments for Vail, Beaver Creek,
and Avon. Mr. Gardiner emphasized that the funding for the VVP&CC was a completely
separate issue from the funding of valley wide marketing. He continued his presentation
with a chart showing regional and national lodging tax levels, and a July, 1992, straw poll
of Vail businesses indicating that 82% of those polled at that time were in favor of a
performance and conference center. He discussed the private funding goal of $16 million for
the performance center ($8 million by August 15, 1993 with assurance of meeting the goal).
He noted the process included continued community input, Town Council endorsement,
informed decision makers, community forums, and neighbor to neighbor contact, and that
August 31, 1993 was the date set for final evaluation of the feasibility of this project. The
decision to continue or to stop the project would be primarily based on whether private fund
raising efforts had raised adequate levels of funds and whether there was public support of
proposed tax amendments. Before discussion was opened for input and questions, project
architects, Gordon Pierce and David Zehren displayed rough draft, preliminary schematic
drawings of the performance and conference center site plan. Exterior design ideas were
discussed. Jim Gibson asked Mr. Gardiner if professional input on the tourism and lodging
tax had been considered. Mr. Gardiner advised there was an in depth demand use analysis
study presently under way and was due by the end of July, 1993. Mayor Osterfoss inquired
if that same study would include information on who would use the facility and in what
numbers. Mr. Gardiner said it would, and it would also include information about what
users would like to see incorporated. Additional discussion related primarily to the specifics
of funding and financial picture of this project as a whole. Mr. Gardiner advised the group's
Finance Committee had a detailed report addressing projected revenue for the performance
center which would be completed shortly. Rob LeVine pointed out the $1,000,000 shortfall
per year was from both the performance center side and conference center side. Although he
felt the economic merits of the conference center side could be weighed, he did not think
anyone was proposing that the performance center side was an economically viable engine.
He did not feel it was meant to make economic sense, rather it was a quality of life issue.
Mr. Gardiner noted there were many opinions as to what either of these components would
do for the Valley, but he felt, short term, more benefit to business would be seen from the
performance center than the conference center because he said there was a marketing cycle
that had to happen to build business into the conference center. He agreed with Rob, though,
that the primary motivation for the performance center was a quality of life issue that would
make the Valley a better year-round community. He felt it would enhance the reputation of
the Valley. Frank Johnson, VVP&CC Steering Committee member, spoke about the use of
the performance center. He stated his committee had spent a great deal of time talking with
local user groups and found a great deal of usage there; 120-130 days per year of local
activities which could be accommodated by the performance center. He said they did not
attempt to quantify the usage from the universe of performing arts opportunities that might
be attracted to this performance center. He added there had been no attempt to estimate the
amount of usage the performance center could get from convention groups, although he said
there was a great deal of interest in fixed seat, general session -type theater events. Mr.
Johnson said the seating capacity would not be sufficient for major productions, but was
viewed more as a more intimate theater. Additional discussion included comment about the
potential of future scheduling conflicts, how the size of the conference center was determined,
whether requests for conference space were being received from groups and how much space
was requested, and if there would be competition between the two facilities. Mr. Johnson
explained that the way the convention center side of the project was determined was by
contact with major hotel directors of sales and marketing with a scenario similar to the Jones
& Phillips study. Jim Feldhaus discussed his research including direct mail inquiry efforts
and responses. He noted his committee was waiting for the response from the demand
analysis study to see if his research was validated. Mr. Gardiner and Mr. Johnson indicated
a management plan, space release policies, and general philosophy for management of the
facilities had not yet been developed. Rob LeVine was uncertain that the $8 million could
be raised by the stated deadline. He suggested the ballot issue be worded such that the
facility would be built if and when the necessary funds were raised, but in the meantime the
tax requested would be in place. There was discussion about the taxing scenario, and Mr.
Gardiner noted many meetings had been scheduled for the immediate future to gather
further public input, feelings, and points of view about funding and whether it was feasible
to proceed or not. Initial reasons for starting this project, including great interest in
economically leveling out the seasons, were reviewed. Mr. Gardiner anticipated he would
return to Council in approximately three weeks with public feedback from the upcoming
scheduled meetings.
Item No. 3 was a Consent Agenda consisting of two items:
A. Ordinance No. 5, Series of 1993, second reading, an ordinance amending
Chapter 16.04, and Sections 16.12.010, 16.20.220, 16.22,160, 16.26.010,
16.20.015 and 16.22.016 of the Town of Vail Municipal Code to provide for the
prohibition of neon lighting and signs and exterior gas filled, illuminated and
fiber optic lighting and signs, and providing regulations regarding the review
of all other gas filled, illuminated and fiber optic lighting and signs, and
providing details in regard thereto.
B. Ordinance No. 9, Series of 1993, second reading, an ordinance amending
Chapter 18.04 of the Vail Municipal Code by the addition of Sections 18.04.137,
18.04.205, 18.04.251, 18.04.273 and 18.04.367, setting forth new definitions
relating to the Zoning Code; repealing Section 18.54.050(C)(11); amending
Section 18.54.040(C)(1) of the Vail Municipal Code by the addition of
Paragraph (m) providing for outdoor lighting plans to be submitted to the
Design Review Board of the Town of Vail; amending Section 18.54.050 of the
Municipal Code of the Town of Vail by the addition of Paragraph (J) providing
a new Section of the Design Review Board Guidelines relating to outdoor
lighting; and providing details in regard thereto.
Mery Lapin moved to remove both items from the Consent Agenda for individual review, with
41 a second from Jim Shearer. A vote was taken and the motion passed unanimously, 5-0.
Ordinance No. 5, Series of 1993, second reading, was discussed first. Mayor Osterfoss read
the title in full. Attorney Kevin Lindahl was present in TOV Attorney Larry Eskwith's
absence. Shelly Mello stated the outstanding issue regarding this ordinance was
amortization and how many signs and businesses this regulation would impact. She stated
she had reviewed signs in the Village, Lionshead, Cascade Village, West Vail Mall, and the
East Vail area. She said her research showed that approximately 15-20 signs would have to
be removed, either because they were in excess of size or quantity allowances or they were
neon. Shelly discussed several specific signs that would be impacted and why. Shelly
clarified the question was should these signs become legal non -conforming in the future and
the legal non -conforming section of the code apply, with the amortization indicating the signs
had to be removed within five years. There was discussion about techniques regarding how
non -conforming signs could be made legal non -conforming. Mayor Osterfoss pointed out that
there could be more than 10 square feet of neon signs as long as each one was only 4 square
feet. Shelly confirmed that. A proposed change to Section 7 of this ordinance to incorporate
restrictions on cumulative number or size of signs was discussed. Art Abplanalp felt this
ordinance was addressing more than signs. He noted accent lighting and lighting located on
the exterior of any building or structure were also addressed, and felt that that was
• inappropriate within this ordinance. He felt the ordinance reached further than intended and
reference and required fairly significant changes; specifically that any reference to accent
lighting located on the exterior of any building or structure should be deleted from the
ordinance. Mr. Abplanalp felt the information contained in this ordinance would logically be
found in the Zoning Code, rather than in the Sign Code. After brief discussion, Kristan Pritz
suggested the ordinance be tabled in order that Mr. Abplanalp could meet with Shelly and
Larry Eskwith to refine the ordinance. Rob LeVine moved to table Ordinance No. 9, Series
of 1993, for one month until June 15, 1993, with a second from Jim Shearer. A vote was
taken and the motion passed, 4-0-1, Jim Gibson temporarily away from Council Chambers.
Ordinance No. 9, Series of 1993, second reading was discussed next. Mayor Osterfoss read
the title in full. Attorney Kevin Lindahl was present in TOV Attorney Larry Eskwith's
absence. Andy Knudtsen noted that the one change to this ordinance since its passage on
first reading was the addition of new Sections 4 and 5 detailing the status of lighting not
conforming to this ordinance and penalties for violating the regulations of the ordinance.
Attorney Art Abplanalp, representing Tyrol Corporation and Renato Ibarra, owners of a
landscape lighting system on Beaver Dam Road, noted this ordinance had been in the process
of development for over one year since TOV s design guideline, Section 18.54.050(c)(11), was
declared unconstitutional by the Eagle County District Court. He felt the ordinance now
under consideration did not follow the advice of the court. He felt there were two critical
aspects of this ordinance: (1) the strength of any light, and (2) the impact of that light on
somebody else. He questioned the validity of a lighting ordinance intruding on to private
property. In a lengthy commentary, Mr. Abplanalp suggested if there was to be some control
of lighting it should be based on measured impact off of the property of the owner. He noted
the Court specifically stated the problem with the previous ordinance was, in part, the
ordinance was not adequately specific and there were no guidelines or standards to apply.
He said Ordinance No. 9, Series of 1993, had standards, but they did not follow the court's
logic, because the court, in an analogy, said lighting needed a measuring device like decibels
in measuring noise. The TOV and the State of Colorado both have noise ordinances, and Mr.
Abplanalp likened those to this lighting ordinance and quoted the measuring techniques from
a noise ordinance. Mr. Abplanalp suggested a technician might be a better source of
regulation for this ordinance. Mr. Abplanalp did not know whether any litigation would
result from this ordinance. He was curious as to what TOV expected to do with non-
conforming lighting. In his opinion, the provision relating to that within this ordinance
would affectively condemn the landscape lighting in place at his client's property. He
inquired who was going to enforce this. He felt this ordinance should not be adopted because
it did not follow the direction given by the Eagle County District Court, it was an imposition
of aesthetic values, and it was inappropriately timed with reference to the question of
whether the people who would be impacted had any knowledge of it.
Next, John Spillane, representing Mr. and Mrs. Henry Kravis, owners of property on Forest
Road, reviewed the comments he had made during first reading of this ordinance, and
requested Council return the ordinance to the way it was written for first reading without
the non -conforming and penalty sections. He stated he agreed with Mr. Abplanalp's
comments with respect to the enforceability of the new ordinance, and believed it was true
there were certain standards set forth in this ordinance that would probably be subject to
challenge. Mr. Spillane discussed the Kravis case and noted they had done a study of
lighting at the time the old ordinance was under consideration, and that they had shared that
information with TOV with the idea of testing the luminescence and the illuminance coming
from lights, and how it compared with any new study because they assumed that any new
ordinance would be prospective only. Mr. Spillane said they had worked with TOV and had
voluntarily decreased the luminance of the lights originally installed at the Kravis residence
by 75%, but felt they were now getting drawn back into the controversy. In the absence of
the provisions TOV had added to Ordinance No. 9, Series of 1993, since first reading, he felt
the Kravises would not object to the ordinance. He suggested a quick review of the law. He
noted that Larry Eskwith had advised Council about some of the potential litigation involved
with this, and hoped Council understood the difference between the ordinance passed on first
reading and how it read now on second reading with the additional provisions related to non-
conforming uses. He felt he understood TOV's desire to have uniformity in application of this
ordinance, but felt TOV had to consider the legal implications of attempting to terminate
legal pre-existing uses. He said that taking away legal uses of property required due process
and just compensation, with the exception, in limited circumstances, which allowed for
amortization of legal non -conforming uses in cases where, in furtherance of a municipality's
police power to advance the public health, safety, and welfare, there was a phasing -out power
that allowed owners to recoup their investments. He noted the only time that had ever been
applied in Colorado was in the context of billboards, and that was the case he had discussed
• with Larry Eskwith in terms of whether Colorado allowed amortization of legal non-
conforming uses. That case in Colorado which allowed for amortization of legal non-
conforming use applied only to commercial context or to context in which the legal non-
conforming use was generating revenue. This was a critical element because it could be
determined how long revenue would be generated. As long as the revenue received back was
reasonable, the legal non -conforming use could be required to be phased -out over that period
of time. He stated he was unable to find any case in which a legal non -conforming use could
be amortized in a residential context where no money was being generated by the use. He
believed Colorado courts would not approve an amortization program in a residential context,
especially where there was no compelling public health or safety consideration involved. He
again asked Council to reconsider returning to the ordinance as passed on first reading.
After further discussion, Mr. Abplanalp added he felt this ordinance should be a prohibition
of unreasonable light off of a property and suggested thee issue should be dealt with in
Chapter 8.24 of the Municipal Code of the Town of Vail.
There was discussion about light measurement techniques, and Andy Knudtsen emphasized
that the consultants hired by TOV recommended very specific standards for measuring light.
The benefit with the standards as proposed compared to a method recommended by Mr.
Abplanalp was that staff could determine prior to installation if proposed lighting would
conform to the ordinance. Additional discussion proceeded regarding attempts to meet
direction given by the Eagle County District Court and the issue of enforcing this ordinance
on private property. Andy indicated staff had spoken with the consultants hired by Mr.
Kravis as well as another consultant. In comparing opinions of the these consultants, staff
felt they had made the most appropriate choice. Andy also pointed out the specificity of this
ordinance with regard to lumens and height. Mayor Osterfoss said she agreed with the
original staff position regarding legal non -conforming uses and suggested the ordinance
changed back accordingly.
Attorney Kevin Lindahl stated he was not aware of any cases which recognized economic
obsolescence or amortization of a residential type use of property when something on the
private property became a non -conforming use. The cases in Colorado were related to
billboards, and it would be difficult to come up with a measurement for amortizing lighting
related to residential use because, unlike commercial use, there was no real measurable
economic value.
Rob LeVine then moved to approve Ordinance No. 9, Series of 1993, on second reading with
the deletion in Section 4 of the verbiage, "Such non -conforming lighting shall be legal and
may be continued and maintained for five (5) years after the effective date of this ordinance,
but thereafter shall conform to every requirement of this ordinance. The five (5) year period
• after the effective date of this ordinance shall be called "the transition period," and with the
change of "non -conforming lighting" to "legal non -conforming lighting." Jim Shear seconded
the motion.
Before a vote was taken, Mr. Spillane suggested tabling this ordinance until Larry Eskwith
could be further consulted about whether the additions and changes made since passage of
this ordinance on first reading were subject to challenge. Mery Lapin agreed with this
suggestions. Kristan Pritz had no objection to tabling the ordinance for further legal
consultation. After brief discussion about the specific guidance given in the ordinance about
measuring non -conforming lighting, a vote was taken and the motion passed 4-1, Mery Lapin
opposed.
Item No. 4 was Ordinance No. 13, Series of 1993, first reading, an ordinance amending
paragraphs 16.32.030(F) and 16.32.040(A) of the Municipal Code of the Town of Vail, to
provide for the termination of any non -conforming sign five years after the effective date of
any amendment to the Sign Code ordinance, and setting forth details in regard thereto.
Mayor Osterfoss read the title in full. Jim Shearer moved to table Ordinance No. 13, Series
of 1993, to June 15, 1993, with a second from Mery Lapin. A vote was taken and the motion
passed unanimously, 5-0.
Item No. 5 was Ordinance No. 7, Series of 1993, first reading, an ordinance repealing and
reenacting Ordinance No. 1, Series of 1993, to provide changes to Area A requirements for
SDD No.4 that concern the development plans for the Millrace III Development Building site;
and setting forth details in regard thereto. The applicant was Michael Lauterbach. Mayor
Osterfoss read the title in full. Jim Curnutte noted that in 1980 the development plan
approved for this property, the Millrace III site, called for a tri-plex to be built on the
property. Ordinance No. 7, Series of 1993, was requesting a major amendment to the SDD
to allow Mr. Lauterbach to amend the 1980 plan so he could construct a duplex and a single-
family residence on the property. Jim indicated that on February 8, 1993, the Planning and
Environmental Commission (PEC) had reviewed and recommended approval of Mr.
Lauterbach's application with seven conditions as detailed in the Community Development
Department's (CDD) memo to Council dated May 18,1993. Jim advised that six of the seven
conditions had been met by Mr. Lauterbach; the exception being the condition to provide
necessary improvements to the portion of Westhaven Drive directly in front of his property
to bring the road up to TOV standards. Jim noted that as part of Ordinance No. 7, Series
of 1993, Mr. Lauterbach agreed to grant to TOV a ten foot pedestrian fisherman's easement
along his property ten feet in from the shore of Gore Creek along the entire length of his
property and a public access easement over the bike path which runs through his property.
With regard to the unmet condition, Mr. Lauterbach had agreed to be bound by the same
conditions agreed to by the developers of the Waterford and Cornerstone projects, with the
exception that Mr. Lauterbach wanted to have a clause added to the conditions which would
release him from the obligations contained therein when and if the developers of the
Cornerstone and Waterford project applied for a building permit before he did. If the
developers of Cornerstone or Waterford applied for a building permit prior to Mr. Lauterbach,
they would provide the $97,500 necessary to upgrade the road and, therefore, it would not
be necessary to bind Mr. Lauterbach to the conditions contained in Ordinance No. 7.
Ordinance No. 7 would repeal and reenact Ordinance No. 1, Series of 1993. After discussion
and brief comment from Mr. Lauterbach as to his understanding of Ordinance No. 7, Mery
Lapin moved to approve Ordinance No. 7, Series of 1993, on first reading with minor verbiage
change in Section 18.46.210(CX5)(a) to state, "... at the time a building permit is obtained
for Millrace III..." Jim Gibson seconded the motion. A vote was taken and the motion passed
unanimously, 5-0.
Item No. 6 was Ordinance No. 14, Series of 1993, first reading, an ordinance amending
Section 16.24.010(G) of the Vail Municipal Code, setting forth provisions relating to signs
displayed on balloons which are associated with a special event within the Town of Vail. The
applicant was the Town of Vail. Mayor Osterfoss read the title in full. Tim Devlin reviewed
ordinance item numbers 1-9. Jim Gibson moved to approve Ordinance No.14, Series of 1993,
on first reading, with a second from Jim Shearer. A vote was taken and the motion passed
unanimously, 5-0.
Item No. 7 was Resolution No. 4, Series of 1993, a resolution approving of the purchase by
the Town of Vail from the United States Forest Service two parcels of land commonly known
as the Spraddle Creek Parcel and the Golf Course Maintenance Parcel, and setting forth
details in regard thereto. Mayor Osterfoss read the title in full. Mery Lapin moved to
approve Resolution No. 4, Series of 1993, with a second from Jim Gibson. A vote was taken
5
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and the motion passed unanimously, 5-0.
Item No. 8 was Resolution No. 5, Series of 1993, a resolution recognizing "June Recycling
Month". Mayor Osterfoss briefly discussed the resolution. Mery Lapin moved to approve
Resolution No. 5, Series of 1993, with a second from Jim Gibson. A vote was taken and the
motion passed unanimously, 5-0.
Item No. 9 was a request for approval of utility encroachment agreement for 2983 Bellflower,
Intermountain Subdivision. The applicants were David A. and Leslie A. Danielson. Mike
Brake explained the new owners wanted to receive permission for existing deck and stairway
encroachments on utility easements. It was noted no other neighbors would be affected.
Mery Lapin moved to approve the request for this utility encroachment agreement, with a
second from Jim Gibson. A vote was taken and the motion passed unanimously, 5-0.
Before adjournment, Pam Brandmeyer asked Council for donation of a blue parking pass to
be used as a raffle item for the upcoming Ride the Rockies event. Consensus was reached
to approve this donation from TOV.
Pam also advised Council of TOV's upcoming Speak Up Meeting dates: July 21, July 28, and
August 4, 1993.
Pam noted a letter had been received from Cissy Dobson indicating the bells at the Interfaith
Chapel had to be replaced at a cost of approximately $15,000, and the Vail Religious
Foundation was asking for a contribution from TOV. Pam asked Council is she should advise
that this request be resubmitted during the summer when requests for contributions from
TOV were usually hear. Mery Lapin felt the area of contributions was one which
Amendment 1 would force drastic cutbacks. He also felt, in the case of this specific
contribution request, that state and church needed to be separated. Rob LeVine did not feel
this was a religious issue. He felt the chapel was a landmark in Vail. Jim Gibson agreed.
Consensus was reach to contribute $500 from Council Contingency Funds toward the
replacement of the bells at the Interfaith Chapel.
Larry Grafel:
* Advised Clean -Up Day had been successful. There had been 422 participants.
* Advised Pete Burnett had announced he would retire from TOV on July 1, 1993.
* Asked Council if the Ski Museum Contract was to be continued as established.
Council said it was, and Larry stated he would communicate this information to Bill
Johnson.
* Suggested that the all day Council Goal Setting Session scheduled for May 26 be
postponed until after the Citizen Survey has been reviewed. Council agreed.
* Updated Council on changes planned in NWCCOG's bylaws targeting communities not
paying their dues.
There being no further business, Jim Gibson moved to adjourn the meeting to Executive
Session to discuss Personnel Matters. Jim Shearer seconded the motion. A vote was taken
and the motion passed unanimously. The meeting was adjourned to Executive Session at
10:45 P.M.
ATTEST:
MO `7779 1_111h7k .®x_
Holly L. McCutcheon, Town Clerk
Minutes taken by Wanne S. Deto
G.WINMAY18.93
Respectfully submitted,
A4,_'// i aY
Margafkt A. Osterfoss, Mayor