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HomeMy WebLinkAboutMinutes 10/16/06 PUBLIC HEARING October 16,2006 resent: Peter Runyon Tom Stone Am Menconi Bru:ce Baumgartner Bryan Treu Robert Morris Teak Simonton Kathy Scriver Chairman Commissioner Commissioner County Administrator County Attorney Assistant County Attorney Clerk to the Board Deputy Clerk to the Board This being a scheduled Public Hearing, the following items were presented to the Board of County Commissioners for their consideration: Executive Session It was moved, seconded and unanimously agreed to go into Executive Session for the purpose of receiving legal adVice and discussion of the Alpine Slide appeal and Pier 13 Liquor license suspension which are appropriate topics for discussion pursuant to c.R.S. 24-6-402(4)(b), Colorado ReVised Statutes. At the close of the discussion, it was moved, seconded and unanimously agreed to adjourn from Executive Session. Consent Agenda Chairman Runyon stated the first itern before the Board was the Consent Agenda as follows: Ai Approval of bill paying for the week of October 16, 2006 (subject to review by the Finance Director) Mike Roeper, Finance B. Approval ofthe minutes of the Eagle County Board of Commissioners meeting for August 29,2006 Teak Simonton, Clerk & Recorder C. Final SettleIl)ent of Agreement between Eagle County and Adarand Constructors, Inc. for the 2006 Guardrail Project Attorney's Office/Road & Bridge Department Representative D. Encroachment Easernent Agreement between Eagle County and Lake Creek Meadows Homeowners Association Engineering Department Representative Eo Software Maintenance Agreement between Eagle County and Gatekeeper Systems, Inc. for Audio Video Interleave system Chris Anderson, Airport F. Easement agreement between the Town of Eagle and Eagle County for the Eagle to Gypsum Trail Ellie Caryl, ECO Trails G. License Agreement between Eagle County and the Colorado Department of Transportation for a portion of the Eagle to Gypsum Trail to occupy the Highway 6 right-of-way Ellie Caryl, ECO Trails 1 10/16/06 I-- I H. Agreement between Eagle County and RRC Associates for consultation services for assessment of housing needs KT Gazunis, Housing Chairman Runyon asked the Attorney's Office ifthere were any changes to the Consent Agenda. Bryan Treu, County Attorney stated that there were no changes. He stated that the notice for final settlernent had been published for Item C and the Attorney's Office had not received a verified statement of claim from any sub-contractors. Commissioner Menconi moved to approve the Consent Agenda, Items A~H. Commissioner Runyon seconded the motion. The vote was declared unanimous. Introduction, first reading and setting of public hearing for an ordinance for the regulations of traffic by the County of Eagle, State of Colorado, adopting by reference the 2003 edition of the "Model Traffic Code" as amended by this ordinance and repealing all resolutions or ordinances in conflict therewith and providing penalties fot violation thereof County Attorney's Office Representative Mr. Treu stated that there were some clean up items revised. The only significant change was the change on county roads from seat belts from a secondary to primary offence. COfn1l1issioner Menconi moved to accept on first reading and set for public hearing on November 14th the ordinance for the regulation of traffic by the County of Eagle, State of Colorado, adopting by reference the 2003 edition of the "Model Traffic Code" as amended by this ordinance and repealing all resolutions or ordinances in conflict therewith and providing penalties for violation thereof. Chairman Runyon seconded the motion. Of the two voting commissioners, the vote was declared unammous. Citizen Input There was none Planning Files There was none Beaver Creek Alpine Slide Appeal Hearing Community Development Representative Issue for Hearing: Whether the Board of County Commissioners should affirm the Comrnunity Development Director's Interpretation of 1994 Amended and Restated Beaver Creek Pun Guide provision on uses of right in Open Space Recreational area as permitting alpine slides Commissioner Runyon stated the purpose of the hearing, procedure and ground rules. Keith Montag, Community Development Director spoke. He stated the purpose of the hearing was to hear evidence whether the Board of County Commissioners should affirm his interpretation of the 1994 Beaver Creek PUD Guide thatan Alpine Slide- is considered a "use by right" in the Open Space Recreation (OSR) area. The 2 10/16/06 appeal was sll"!?mitted by the BeaVer Creek Property Owners Association in addition to the Highlands Resort Association and its constituent members as well as the Greystone and Wiltshire Court Association. He explained the history and chronology of various events leading up to the hearing. Presel1tationoC appeal rea.sons and supporting testimol1Y and documel1ts by representa.tives of appella.l1t :ea.ver Creek Property Owners Association Rick Johnson, Attorney representing the Beaver Creek Property Owners Association spoke. He presented a PowerPoint presentation. He stated that it is their belief that the Director contradicted the legislative intent behind the 1994 PuD and read into the Pun a use that the BoCC had specifically eliminated when: they adopted the PUD in 1994. This legislative intent and the 1994 PUD provisions were the direct result of the BCPOA's negotiations and agreement with Vail. lIe doesn't believe an alpine slide is compatible with the environment. The 1994 POD waS silent on the issue. He believes that even the Director acknowledged the ambiguity in making his decision and his opinion should not have entered into the matter. In the 1988 PUD, alpine slide was identified as a use-by-right. In the 1994 PuD it was specifically deleted from the list of permitted uses. The 1994 PUD was intended to restrict OSR uses and limit future lises on OSR parcels to preserve views and protect the natural environment. The deletion was to make clear that an alpine slide was not compatible. Section 10 of the 1994 PUD mandates that no substantial modifications ofthePUD shall he permitted except upon a finding by the BoCC after a public hearing. This rnodification has a substantial effect on the adjoining landowners. lIe believes that the Director exceeded his jurisdiction. He asked the Board to give careful consideration to the Colorado law on interpretation of legislative acts. He believes that an alpine slide is an amusement ride and not a true recreational activity. It's not an activit)' that requires physical excursion or athletic prowess. Vail Resorts definition of an alpine slide indicated that it's a ride and nOt an activity. The alpine slide uses a combination of mechanized deVices and carries passengerS along a fixed course, therefore rneets the definition of an amusement park ride under Colorado law. He presented a Video clip of an actual alpine slide ride and suggested that the Board consider the dangers of an alpine slide due to the record nurnber of injuries. U ses-by-right in the OSR only include actiVities that are compatible with the valleys environment. He believes that on examination of the valley's enVironment, an alpine slide is not compatible on ultiple levels. Beaver Creek was developed to provide quiet, peaceful and prestigious rnountain liVing. He oesn'tbelieve there is anything special or prestigious about an alpine slide and one is not compatible with the premiere luxUry enVironment represented by Vail. The hay meadow is a pristine area and the proposed slide will visually scar the mountain. An alpine slide will divide the elk calving and migration area. The alpine slide will degrade the natural environment with noise pollution and hurnan activity. IneVitably, wildlife will be forced out ()f the area. lIe stilted that the Beaver Creek Pun is home to hundreds of housing units and according to the resolUtion approving the PUD, the open space is meant to proVide maximum use to the residents for the purpose of recreation, scenery and produce a feeling of openness. There is no mention of day users or maximizing Vail's profits. The alpine slide is not intended for the usefulness of the residents, it is intended to be a special benefit on Vail and its cornrnercial interests. Breckenridge currently has a slide in an isolated area and it is not nea.r residential development. Unless the alpine slide is subject to a special use permit, conditions could not be imposed by the County. He stated that over 200 letters and emails had been submitted in opposition of the alpine slide. The resident's believe that the slide is not compatible with the valley's environment. He concluded that the Director's deCision must be reversed. The hay meadow is the centerpiece of the Beaver Creek Valley and warrants protection. The BoCC rnust find that an alpine slide is not a use-hy-right hut instead let Vail Resorts pursue a special use perrnit were conditions can be imposed and enforced. ... Presentation of appeal reasons and supporting testimony and documents by representative of appellant Highlands Resort Association, The Highlands Lodge Owners' Association, Highlands Slopeside Condominium Association, Highlands Townhomes Association, Highlands Westview Association and McCoy Peak Association, Inc., Greystone Condominium Association and Wiltshire Court Association, Inc. 10hn Dunn spoke. He represented the Highlands Resort Association, The Highlands Lodge Owners' ssociation, Highlands Slopeside Condominium Association, Highlands Townhomes Association, Highlands 'estview Association and McCoy Peak Association, Inc., Greystone Condominium Association and Wiltshire Court Association, Inc. Since the appeal was filed, they've had additional associations join with them. He presented a couple items for the record-exhibits 26 and 27. He referenced the grading permit application..;exhibit 3 10/16/06 24. He stated that the layout of the tract was different from what was contained in the layout of the tract in the application to the Director for interpretation. He stated that if the alpine slide is treated as a use-by-right, Vail Resorts could put the slide anywhere with no restrictions whatsoever. This appeal turns on the County's regulation. When a regulation is adopted it should not be misinterpreted by future Boards. He believes that the Director had only one representation of an alpine slide and one side of the story when making his decision. He believes that the flaw of the Director's determination was his oversight. An exhibit to the 1994 regulation was presented. He explained the changes in the language and the intent. All of the open space within Beaver Creek was defined as open space recreation. Vail Associates made several promises to the Beaver Creek property owners in 1993. They made a promise to create the OSR green belt that would rigidly restrict the areaS to less public and made changes to the uses in the other open space recreation areas including the deletion of alpine slide. By virtue of the conservation easement, the promise was made that the 1994 regulation would never change. Vail Resorts is doing by indirection what they could not do by direction. They could not request that the regulation be amended so they are asking the county to.interpret it to be different from what the 1994 Board intended. The Beaver Creek property owners would not have supported the 1994 amendment without the agreement they had reached with the promises contained in the agreement. The Beaver Creek Property Owners have made an investment in Eagle County and pay rnillions of dollars in property taxes, without them Beaver Creek as a world-class resort would not exist. They object to an alpine slide on the hay meadow ski run because they believe it is an amusement ride and not appropriate to the charm of the resort. They believe that the slide will affect their property values. An alpine slide is differentfrom the other u.ses enurnerated in the OSR designation. It is not a recreational actiVity compatible with the Beaver Creek environrnent. Chairman Runyon Swore in Bernie Sharp. -- ------------Bemie-~flt-ef-the-MeGe-y--Peak-asseGiatH>R-speke.-I1e-presenooG-a-vid~e-Glip-fFotn the Breckenridge alpine slide. The video illustrated the impact, sound and affect of the alpine slide on adjacent property owners. Chairman Ru.nyon swore in Stewart McGregger. Stewart McGreggor, Noise and Vibration Engineer from Engineering Dynamics in Englewood Colorado Spoke. He recently visited the site and concluded that the actiVities related to the slide would exceed the state noise ordinance. - Presentation of testimony and documents by representative of Vail Resorts Diane Mauriello, Assistant General Council for Vail Resorts spoke. She responded to earlier comments. The applicant is requesting the Board to uphold and approve the decision of the Director. Vail Resorts wishes to build an alpine slide at the base of Beaver Creek Mountain in the hay meadow area. In June of2006, in an effort to comply with the PUD guideline, Jeri Arnold wrote to the Director asking for his interpretation, that an alpine slide is a permitted use within the OSR designation in the Beaver Creek PUD. The 1994 PUD language WaS presented. It specifically states that all recreational activities be compatible with the valley's environment and consistent with the needs of a year-rou.nd mountain resort (including but limited to etc.) Nowhere is an alpine slide excluded. The language is clear and speaks for itself. She stated that the Director's opinion is sound, well founded, and he had reached the proper conclusion. She believes that there is no reason for the Board to consider the legislative history. The 1994 arnended PUD was a carefully crafted document, the Beaver Creek residents intended to prohibit something they did so expressly. She believes that Vail Resorts followed through on the commitments that it made. An alpine slide clearly meets the definition of a recreational activity. She explained how ski lifts assist in skiing activities and alone are not a stand-alone recreational activity. She believes that the alpine slide is a fit and consistent with the needs of a year around mountain resort. The alpine slide is not prohibited, it's permitted and it's recreation. The valley's environment has expanded to encompass actiVities that are intended for all ages and all abilities on a year around basis and is clearly compatible with the valleys environment. The PUD language doesn't exclude an alpine slide. Alpine slides have been added to other resorts to compliment year around recreation. She asked the Board to review a brochure provided to give them a better understanding of the great care and sensitivity Vail Resorts had taken concerning noise and views. She assured the Board that Vail Resorts is concerned with the values and future development ofthe resort. She doesn't believe that the video clip presented by Mr. Johnson earlier should be given any weight and should not instruct the Board's determination. Vail Resorts believes this is a use-by-right and something they should be allowed to do, they don't think a special use permit is a proper procedure. She stated that the conservation easement language mirrors the PUD language. The slide that they are 4 10/16/06 proposing will be different from the one shown earlier at Breckenridge. An alpine slide is a summer activity and enhances what is already there. Commissioner Stone wondered why a carefully crafted document would be crafted not to include the words alpine slide and why all recreational activities was used instead. He asked for an example of an actiVity that would ot be allowed. Ms. Mauriello stated that the document was crafted to include all permitted activities because it is not possible to predict future uses. Examples of uses that would not be allowed might be Moto-cross, racecats etc. CommiSsioner Stone likes to see flexibility for future uses but within boundaries. He would like examples of what would or wouldn't be allowed under the description of all. Ms. Mauriello stated that she would address the question in a follow-up document. The intent is to be farsighted and flexible to contemplated future uses that are compatible. Chairmall RUllyon swore in Tom Ragonetti. Tom Ragonetti spoke. He stated that in 1993 and 1994 he was the lead Attorney for Vail Resorts on the Beaver Creek PUD amendment. There were tWo central themes that dominated the discussions and Pun applicatiol1. The Pun amendment was meant to be a reduction and redistribution of density in the Beaver Creek PUD, which would lead to the final build out of Beaver Creek. There was never to be any additional real estate development in Beaver Creek. He stated that there were two major processes carried on side by side. They processed the pun amendment through the county with detailed submission and staff review. There waS much discussion betWeen the Beaver Creek Property Owners Association and indiVidual condominium associations and individuals. The discusSions resulted in two major documents. The first was the Beaver Creek pun amendment and the second was an agreement with the BCPOA, the BCPOA agreement was self-operating in some respects. The document didn't require any additional documentation to carry it out. It was carried out by a special declaration of covenants that were exhibits to the agreement and intended to place specific restrictions on specific parcels of property. The second document was the conservation easernent. The people responsible for much of the negotiations and all of the docurnentation was himself, Peter Jamar and Mike Shomo. The OSR language appears in identical form in three places, the amended pun guide, the BCPOA agreement and the conservation easement. They believed that the lead in language of OSR fully anticipated and permitted the broadest range of year round ecreational uses including an alpine slide. There was no one that recalled remoVing alpine slide from OSR ehtirely or was any instruction given to remOve it. The conservation easement was not intended to limit OSR uses; it was intended to be a docurnent, which restricted the non-real estate development areas to uses other than real estate development. There were sophisticated people on both sides. The agreement was highly detailed and specific. It took many months to negotiate and prepare. The chair 14 site was not an issue but the BCPOA agreement includes the uses ofthe site and does exclude alpine slides. He agrees with the Director's decision. Vertical real estate development was what was intended to be prohibited. CommisSioner Menconi wondered what benefits were derived by the BCPOA from the negotiations. Mr. Raggeneti stated that there were a number of resort enhancements promised. These benefits were listed in the Beaver Creek resort agreement. Commissioner Stone read from the conservation easement agreement and asked both parties to give ex.amples of what the confinement of uses would not be allowed. Chairman Runyon wondered why the chair 14 site was singled out. Mr. Raggeneti stated that the site waS very close to Strawberry Park. Mr. Johnson cross-examined Mr. Raggeneti. Mr. Raggeneti stated that he was present as a witness and not being paid by Vail Resorts to appear. The deletion of alpine slide was not a clerical error. Alpine slide was removed from the list of uses because they believed it was too specific a use and was covered under "all but not limited to". Chariman Runyon swore in TOI1l Alander Tom Allender, Director of resort planning for Vail Resorts spoke. He stated that currently the hay meadow is no longer pristine. A base line assessment was preformed and it was determined that there would be no wildlife impacted. Typically elk don't use the hay meadow for calving. All activities are restricted during calVing times. The intent is not to build a slide like the one in Breckenridge, which was built in the 70's. The older slides were built differently and the intent is to build a slide that is newer, quieter and with increased safety. The closest residence would be 150 ft. He believes that the noise readings presented earlier were unrealistic. They have msidered the safety issues and would be installing governors to control the speed of the slide. Mr. Raggeneti cross-examined Mr. Allender. 5 10/16/06 Mr. Allender stated that the Walsh report indicated that there was evidence of mule deer, elk and red tail hawks in the hay meadow. He stated that an alpine slide would make the hay meadow less pristine. He stated that the slide would be 300 ft from the McCoy Lodge. The slide could not be built without a grading permit and to this day, a grading permit had not been issued. The PUD guide was intended to allow anything that would be appropriate from a recreation standpoint. Chairman Runyon swore in John Garnsey. Mr. Garnsey responded to Mr. Dunn's comments about Bob Broghttnan. Commissioner Stone stated that he is surprised that Vail Resorts has not taken the good neighbor approach. In the past Vail Resorts has always dotted the I's and crossed the T's and worked towards a compromise. Mr. Garnsey stated that they have tried to address many of the concerns of the BCPOA and he believes that they have been sensitive to the property owners. He believes that the armageddon that the property owners have turned the slide into is unfounded on many bases. Commissioner Stone stated that this decision could restrict all recreational uses and may not be in the best interest of Vail Resorts. He encouraged Vail Resorts to resolve the matter outside ofthe courts. Mr. Morris wondered if there would be any objections to the introduction of affidavits. Mr. Johnson stated that he would object to submission of additional affidaVits. Mr. Morris stated that it would be at the Board's discretion to accept the additional affidavits. Chaifrnan Runyon opened public comment Tom Harned spoke. He has been in the area for over 30 years and worked for the Ski Corporation several years ago. He wondered if the current management tearn of Vail Resorts had made the right decision. He doesn't believe that an alpine slide is appropriate for Beaver Creek area. Nancy Smith, full time BC resident. She stated that she stands behind their attorney, Mr. Johnson. Frank Smith stated that believes that an alpine slide is not appropriate for the area. Candace Palmer, full time BC resident and property owner for 20 years spoke. She strongly believes that the slide should not happen. Jim Kaylor, BC resident spoke. He requested that the Board overturn the Director's decision. John Forstman, BC resident spoke. He serves on two boards in Beaver Creek. As a professional, he believes enVironmentally, it is a disaster. He believes that Mr. Johnson has stated his position well. He asked the Board to consider all of the elements carefully. John GalVin, Be property owner since 1981. He had been involved with the development of Beaver Creek over that time. He doesn't believe the slide fits with the resident's Vision of Beaver Creek. Bernie Sharp, BC property owner for over 18 years and resident of McCoy Peak Lodge. He's been active in the management of Be properties for several years. He stated that 10 % of the views from McCoy Peak is how the property is valued. The slide will negatively influence the home values in the area of the slide. A majority of residents wouldn't have purchased their homes ifthere was a slide or if they knew one was proposed. Tom Schouten, full time BC resident spoke. He currently serves on the Vilar Center advisory committee. He believes that 93% of the residents are opposed to the slide. He believes that they have tried to work with Vail Resorts and will continue to work with them. He would like the Board to focus two key words, enVironment and compatibility . Pamela Schouten spoke. She stated her support for their attorney. Ginny Forstman, full time BC resident spoke. She has a direct view of the hay meadow and doesn't believe her view would remain pristine with an alpine slide. She wonders what it would look like if Vail Resorts decides to build more than two slides. She asked that the Board overturn the Director's decision. Ian Sacks, full time BC resident spoke. He and his wife concur with their attorneys and fellow BC residents. Lou Kreig, BC resident spoke. He believes the project should not be permitted in Beaver Creek. He believes it's a bad business decision for Vail Resorts and a bad decision for Beaver Creek and the community. Vaughn Morgan, BC resident spoke. He wouldn't have bought his home ifhe would have known about the alpine slide. He asked that the Board consider the people. Suzanne Hoffman spoke. She stated that her and her husband purchased their home in BC because they loved the area. She believes that as good corporate citizens, Vail Resorts should be working with the property owners. They don't believe an alpine slide is an alpine activity. She asked that the Board preserve their backyard a reverse the Director's interpretation of the 1994 PUD. 6 10/16/06 Davvn Friedman, full time BC resident spoke. She spoke in opposition of the slide. William Stone spoke. He stated that he currently has two residences, one in Chicago and one in Beaver Creek. He doesn't believe that an alpine slide is appropriate for the Beaver Creek hay meadow. At the time he "-urehased D-ome he didn't recall any documents related to an alpine slides. He read the conservation easement :reement and doesn't believe the use is compatible with the environment. Ken Willis; house manager for Elk Tract property. He spoke on behalf ofthe property owner and stated that the owner, Mr. Kutayba Alghanim supports the comments of their attorney and fellow BC residents. Bob West, full time BC resident spoke. Although he's followed many arguments pertaining to the slide, He still doesn't believe an alpine slide is compatible with the Beaver Creak hay meadow open space area. He believes there maybe an alternative location. Janice Hunt, president of Greystone Condominium Association spoke. She presented a brochure that she issued to Greystone Condominium owners that spoke of quietness and access guaranteed to them. She believes Vail Resorts has betrayed them. She believes that if a slide were built, several residents would move out of the Beaver Creek area. Chairman Runyon closed public comment. Chairman Runyon suggested that the attorneys agree to a schedule. Mr. Johnson requested that the Board close the record of the hearing and submittal of further eVidence. Commissioner Stone stated that agreed with Mr. Johnson and believes that there had been enough eVidence and testimony provided. He stated that summary briefs would be sufficient. Mr. Morris stated that the only way the Board would have flexibility is by keeping the record open for further testimony. Commissioner Menconi stated that he would like to have further discussion on November 14th. Commissioner Menconi rnoved that the Board table the Beaver Creek slide appeal hearing until November lS\ 2006, closing the hearing and eVidence that has been presented for further deliberation, and decision by the oatd. Commissioner Stone seconded the motion. The vote was declared unanimous. There being no further business before th~'BQa:oQ:;"the meeting was adjourned until October 24,2006. p. ':,,~\ ~~~ 1 ':.' ~:t tr, . ~ -d " ~ - L /~'v~~" 0~)~ /" Chairman Attest: 7 10/16/06