HomeMy WebLinkAboutR16-079 Affirming Com Dev Dir Interpretation Lodge and Spa at Cordillera Commissioner moved
• adoption of the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 2016- 01
A RESOLUTION AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR'S
INTERPRETATION WITH MODIFICATION REGARDING THE LODGE AND SPA
AT CORDILLERA
WHEREAS, this matter comes before the Board of County Commissioners of Eagle
County ("Board") through the Cordillera Metropolitan District's and the Cordillera Property
Owner's Association, Inc's. ("Cordillera") appeal of Bob Narracci's Letter of Interpretation
dated July 11, 2016 ("Director's Interpretation"). The appeal was timely brought under Section
5-2400 of the Eagle County Land Use Regulations ("LURs").
WHEREAS, the Director's Interpretation determined that the proposed use of the Lodge
Parcel and Village Center Parcel (the "Property") for a clinic with multi-family residential uses
for addiction treatment would be a use-by-right under the Cordillera PUD Guide. The use
proposed was for a clinic including inpatient, non-critical care, for treatment of a variety of
• conditions including, but not limited to, eating disorders, alcoholism, chemical dependency, and
behavioral health conditions with a focus on health and fitness, including fitness facilities, yoga,
nutrition and recreation. The Director's Interpretation determined that such clinics are clearly an
allowable use for non-critical care; which may provide both inpatient and outpatient facilities as
a use-by-right.
WHEREAS, the Cordillera appeal generally claims the following errors: 1) The
Director's Interpretation is inconsistent with the purposes of the Cordillera PUD which is for a
resort residential community and must, therefore, serve the community of Cordillera; 2) The
Director's Interpretation failed to give effect to the legislative intent governing the use of the
Property requiring it to be used as a focal point and social gathering place for the residents and
guests of Cordillera; 3) The Director's Interpretation failed to apply the actual language of the
PUD which would preclude inpatient treatment and the proposed uses are something other than a
clinic; and 4) The Director's Interpretation represents a wrongful Major Modification of the PUD
requiring the approval of the Cordillera HOA and formal amendment to the PUD.
WHEREAS, the proposed buyer of the Property, Concerted Care Group, and the current
Property owner, Behringer Harvard Cordillera LLC, (collectively "CCG") generally claim the
Director's Interpretation is correct based on the following: 1) Clinics are allowed as a matter of
interpretation as the word clinic must mean something different than outpatient facilities or its
use in the PUD Guide would be redundant and superfluous; 2) The clinic will provide only non-
critical care; 3) The Director's Interpretation is consistent with other private, permitted uses in
the PUD such as residential multi-family housing, lodging accommodations, retail and service
• commercial uses, and food services facilities in addition to a clinic; 4) The use of the Property
for a clinic is consistent with the legislative intent of a resort residential community as the •
proposed use is a residential use as a matter of law and is being located in Cordillera to provide a
relaxing resort environment for persons recovering from addictions; 5)The focal point and social
gathering language applies to the Village Parcel and not the Lodge Parcel; 6) Cordillera
approved the adoption of the clinic use when the PUD was amended in 2009 (2009 PUD
Amendment"); 7) The Director's Interpretation is not a Major Modification to the PUD Guide as
exercising a use-by-right cannot be deemed a major modification; and 8) A reversal of the
Director's Interpretation would violate the FHA and ADA as the County has a duty through its
zoning decisions to treat the prospective residents of the clinic on an equal basis with other
multi-family residential uses.
WHEREAS, the Director originally issued a determination letter on June 1, 2016, but
reissued the same interpretation on July 11, 2016 to correct a potential procedural error.
Cordillera brought a timely appeal of this renewed Director's Interpretation under Section 5-
2400 of the Eagle County LURs. This matter was initially scheduled for hearing on August 30,
2016, and continued to September 20, 2016 at the request of Cordillera.
WHEREAS, the Board determined it necessary to receive and review the Director's
Interpretation letters dated June 1, 2016 and July 11, 2016, the Director's PowerPoint
presentation and oral presentation; Cordillera's Original Appeal and Exhibits, Cordillera's
Renewed Appeal, Cordillera's Position Statement, Cordillera's PowerPoint presentation and oral
presentation; CCG's Response to Original Appeal, CCG's Position Statement, CCG's
PowerPoint presentation and oral presentation; and various email correspondence and public
comment. The Board did not give weight to any correspondence or public comment that is either
a pretext for or is facially discriminatory towards recovering addicts. The Board also did not give •
weight to any correspondence or public comment that is unrelated to matters raised in the
submissions of the Director, Cordillera, and CCG.
NOW,THEREFORE,BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO:
THAT, the Director's Interpretation should be AFFIRMED WITH MODIFICATION for
the reasons set forth in the Director's and CCG's submissions, such reasons incorporated herein
by this reference. Specifically,the Board finds as follows:
THAT, the Director's Interpretation followed proper procedure pursuant to Section 5-
220 of the LURs and there was no inappropriate influence by CCG on the decision.
THAT, the proposed use is for addiction patients to stay in lodging rooms and receive
outpatient clinical treatment in addition to other therapeutic amenities such as yoga, classes, spa
treatments, etc. Critical care is not allowed under the applicable zoning. CCG presented
testimony and state license applications that satisfy this Board that critical care will not be an
offering at the proposed clinic. The Board does not find the proposed use to be a hospital, group
home, or Acute Treatment Unit as argued by Cordillera. The proposed use clearly meets the
various uses-by-right allowed on the Property, including but not limited to, medical offices and
facilities, lodging and accommodations, meetings rooms, conference facilities, service
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commercial, processional offices, residential single-family, townhome, multi-family,
• condominiums and/or fractional interest ownership, and educational facilities.
THAT, medical offices/facilities are not limited to medi-spa treatments as argued by
Cordillera. If such limiting language was desired by Cordillera it should have been included in
the PUD Guide during the 2009 PUD Amendment. Instead, medical offices/facilities were made
a stand-alone, use-by-right qualified only by the language "limited to clinic and outpatient
facilities for non-critical care, including, without limitation, for outpatient plastic surgery and
other cosmetic procedures." Such language is illustrative of the types of treatment that may occur
in the clinic, but does not preclude other types of clinical treatment. Absent further limiting
language, this Board cannot dictate the types of patients to be treated in the allowed clinic.
THAT, some level of community access is not a requirement of the Lodge Parcel or the
PUD Guide. Cordillera points to the general purpose statement of the entire Cordillera PUD
Guide that states Cordillera is to be developed as a resort residential community. This general
language does not trump the clear uses-by-right for the Lodge Parcel nor does it provide any
guidance or standards that could be used by this Board in enforcing such an amorphous
community access requirement. Here, the PUD Guide contains 34 specific uses-by-right for the
Lodge Parcel, many of which would preclude general community access. The Lodge can be used
for such privatized things as offices, commercial space, residential uses, employee housing,
educational facilities, day care facilities, and clinics. The PUD Guide further allows privatization
by stating that Lodge units may be used for residential purposes, including, without limitation, as
condominiums or fractional interest ownerships. The Board finds no requirement in the PUD
• Guide or elsewhere mandating community access at the exclusion of the other allowed, priv4te
uses on the Lodge Parcel. Absent such requirement, this Board cannot dictate the types of us,rs
who must be given access to the Lodge and its related amenities.
THAT, the intent of the 2009 PUD Amendment was not to limit the stand-alone, uses-
by-right of the Lodge Parcel to those uses ancillary and complimentary to the Lodge. Cordillera
claims the intent of the 2009 PUD Amendment was to add ancillary amenities to the Lodge
Parcel to enhance its operation, but the Lodge Parcel must still be run as a community amenity.
The materials submitted belie such claim. Prior to the 2009 PUD Amendment, the allowed uses
for the Lodge Parcel listed the "[c]lubhouse and Lodge building with related facilities, including
but not limited to (nine other allowed uses):" Arguably, identifying these additional uses in an
illustrative list of related facilities made them ancillary to Lodge purposes. Cordillera asserts that
the 2009 PUD Amendment did not add additional uses so any clinic currently allowed must,
therefore, still be ancillary to Lodge purposes. This Board disagrees.
THAT, there were, in fact, 24 additional uses added to the Lodge Parcel in the 2009 PI D
Amendment. Although no new densities or uses were added to the entire Cordillera PUD, several
were moved to the Lodge Parcel, including many privatized uses that would not be appurtenant
to a community amenity. Additionally, the qualifying phrase "including but not limited to the
following:" was purposefully deleted in the 2009 PUD Amendment. Cordillera concurred with
these proposed changes in 2009. Accordingly, the 34 current uses-by-right are now stand-alone
uses not dependent on continuation of the current Lodge operations. As such, the Board cannot
dictate which of the allowed uses must be performed at the exclusion of others. The role of
• zoning it to determine allowed uses,not mandate preferred ones.
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THAT, in addition to being at odds with the language of the PUD Guide, a community •
access component is inconsistent with the clear language of the applicable Cordillera covenants.
Cordillera argues that the covenants are not relevant to the issues before this Board. This Board
disagrees. Cordillera made the covenants relevant when they raised the intent behind the 2009
PUD Amendment as a factor for our consideration. The Board finds the language of the PUD
Guide and the applicable covenants more persuasive of intent than the various recollections of
parties to meetings in 2009. The covenants clearly make the Lodge a private amenity. No person
gains any right to use that private amenity by virtue of owning a lot or home in Cordillera.
Additionally, owners of private amenities may, in their sole and absolute discretion and without
notice, amend or waive the terms and conditions of use and terminate use rights altogether.
Accordingly, this Board finds there was no clear intent to mandate a community-accessed Lodge
in the PUD Guide. This finding is further evidenced by the applicable covenants directly
contrary to Cordillera's position.
THAT, the Lodge is not required to be operated as a social gathering place or focal point
for the Cordillera community. Cordillera further argues that the intent of community access is
evidenced by Section 3.01.1 of the PUD Guide which states the intent of the Village Center
Parcel is "to provide a focal point to the community both within a physical design context and as
a social gathering place." As the Lodge Parcel and Village Center Parcel were intended to be
treated as a single planning parcel following the 2009 PUD Amendment, Cordillera argues this
language mandates some level of community access to the Lodge. This Board disagrees for the
reasons already stated and for the following: The social gathering language applies to the Village
Center Parcel and not the Lodge Parcel. Treating these adjacent areas as a single planning parcel •
allowed approved densities to be transferred between the two parcels and permitted the same
uses on both. However, the parcels were not merged into one single parcel in the PUD Guide.
They are treated as separate parcels with separate applicable sections. There are provisions that
remain different between the two parcels including allowable square footage, density,
development standards, and allowed employee units. Noticeably different is that the PUD Guide
only references the Village Center Parcel as the "focal point" and "social gathering place" in the
intent language. If Cordillera desired this language to apply to both parcels it could have easily
added the same to the Lodge Parcel section. Further, even if a"focal point"and"social gathering
place" requirement existed on a combined Lodge Parcel and Village Center Parcel, such
requirement could be met by allowing community access to amenities other than the Lodge.
THAT, the proposed use does not alter the character or land use of a portion of the PUD
and therefore does not constitute a"Major Modification"of the Cordillera PUD. Examples in the
PUD Guide of items requiring major modification are: any changes from residential to
commercial, changes in designation of open space or wildlife areas to a non-recreational or non-
conservation related use, and additions of land to be governed by the PUD Guide other than
recreational, open space or access land. Here, there is no such change. Rather, a previously
approved use-by-right is being exercised. These uses-by-right are not conditional. Both clinic
and residential uses have previously been approved on the Lodge Parcel. Accordingly, operating
as such cannot alter the character or land use of Cordillera. To hold otherwise would essentially
be saying that exercising any previously approved use-by-right, but for the current use, triggers a
process where the HOA has veto power. Such a finding would render the listed uses-by-right
meaningless.
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• THAT, the Board hereby AFFIRMS the Director's Interpretation based on the evidenlCe
presented at the hearing and finds the proposed uses are allowed as uses-by-right in the
Cordillera PUD Guide with the MODIFICATION that the clinic component be operated as an
outpatient facility.
THAT, this Board thanks the parties for their professionalism and encourages the parties
to work cooperatively to ensure the continued success of the Cordillera community.
THAT, this Resolution shall serve as the final agency action with regard to this appeal
for purposes of review pursuant to C.R.C.P 106(a)(4).
MOVED,READ AND ADOPTED by the Board of County Commissioners of the
County of Eagle, State of Colorado, at its regular meeting held the`30th day of August, 2016.
(r t4 0A 4( U th wY}— , Zo 1 b
COUNTY OF EAGLE, STATE OF
COLORADO,by and Through Its
ATTEST: ct a% BOARD OF COUNTY COMMISSIONERS
1 V4 4L �tu..o 4...,► . Q :y:
Clerk to th,:oard of pV d/14(0,u-60-d
ne McQueeney
County Commissionersr
,,„,
Jill'. H. Ryan
ommissioner
Kathy Chandler-Henry
Commissioner
Commissioner • �0...4 V Lv-..-•(.. seconded adoption of the foregoing resolution. The roll
having been called,the vote was as follows:
Commissioner McQueeney A-Lt 14
Commissioner Ryan 14 h "
Commissioner Chandler-Henry A..7$ i
This Resolution passed by 7■1 0 vote of the Board of County
Commissioners of the County of Eagle, State of Colorado
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