TC Minutes 03-09-2010MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL
HELD MARCH 9, 2010
A regular meeting of the Town of Avon, Colorado was held at the Avon Municipal Building, One
Lake Street, Avon, Colorado in the Council Chambers.
Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council
members present were Rich Carroll, Dave Dantas, Kristi Ferraro, Amy Phillips, and Buz
Reynolds. Brian Sipes was absent. Also present were Town Attorney Eric Heil, Town Manager
Larry Brooks, Assistant Town Manager Management Services Patty McKenny, Town Engineer
Justin Hildreth, Assistant Town Manager Finance Scott Wright, Police Chief Brian Kozak,
Assistant Town Manager Community Development Sally Vecchio and Public Works and
Transportation Director Jenny Strehler as well as members of the public.
COMMUNITY/ CITIZEN INPUT
✓ Charles Wolf introduced himself as running for Eagle County Sheriff in November.
✓ An update was presented on the IronKids Event.
DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST
There were no changes to the agenda and no conflict of interest.
CONSENT AGENDA
Mayor Wolfe asked for a motion on the consent agenda. Councilor Dantas moved to approve
the consent agenda; Councilor Phillips seconded the motion and it passed unanimously.
a. Minutes from February 23, 2010
b. Western Enterprise, Inc. Contract for Salute to U.S.A Fireworks production with Western
Enterprises (Meryl Jacobs, Recreation Director)
RESOLUTIONS
Ross Graves, Vince Cook, GreenPort Sustainable Communities Corporation, presented
Resolution No. 10 -09, Series of 2010, Resolution in Support of GreenPort Initiative. He
reviewed the progress made on the Greenport Initiative and requested that the Town consider
supporting the Resolution in support of the "Transit Oriented Economic Development Corridor".
Vince Cook spoke about the program and conversations with CDOT and the possibility of
getting stimulus funding. It was noted that support would be first, and hopefully funding support
would be requested at a later date. Councilor Ferraro moved to approve Resolution No. 10 -09,
Series of 2010, Resolution in Support of GreenPort Initiative; Councilor Carroll seconded the
motion and it passed unanimously by those present (Sipes absent).
ORDINANCES
Willey Gary presented Ordinance No. 10 -02, Series of 2010, Second Reading, Ordinance
Adopting the 2009 International Building Code by Reference and Repealing and Amending Title
15 of the Avon Municipal Code in its Entirety Town Attorney. Some discussion ensued on the
automatic sprinkler system requirements, 15.10.115, Section R313, (page 24) and it was
suggested that this section be excluded. It was noted that the purpose of the systems is to save
property and not lives. It was noted that this topic would be raised again in 2012. Mayor Wolfe
opened the public hearing, no comments were made, and the hearing was closed. Councilor
Carroll moved to approve Ordinance No. 10 -02, Series of 2010, Second Reading, Ordinance
Adopting the 2009 International Building Code by Reference and Repealing and Amending Title
15 of the Avon Municipal Code in its Entirety with the condition that Section 15.10.115 be
repealed Councilor Dantas seconded the motion and it passed unanimously by those present.
(Sipes absent)
Matt Pielsticker, Planner II, presented Ordinance No. 10 -04, Series of 2010, First Reading,
Ordinance Approving an Amendment to the Brookside PUD, Lots 2 & 3, Eaglewood
Subdivision, to Allow Short Term Rental Use. He noted that the Brookside HOA submitted an
application to amend the Brookside PUD to permit Short Term Rentals as a use by right on Lots
2 and 3 of the development. It was also noted that the P &Z Commission unanimously approved
the application. Vicki Eastman representing the homeowners association and property
management company was present to answer questions. Councilor Carroll moved to approve
Ordinance No. 10 -04, Series of 2010, First Reading, Ordinance Approving an Amendment to
the Brookside PUD, Lots 2 & 3, Eaglewood Subdivision, to Allow Short Term Rental Use.
Councilor Ferraro seconded the motion and it passed unanimously by those present (Sipes
absent).
Matt Pielsticker, Planner II, presented Ordinance No. 10 -05, Series of 2010, First Reading,
Ordinance Approving an Amendment to the Nottingham Station PUD, Lot 4, Nottingham Station
Subdivision, to Allow Short Term Rental Use. He noted that the Canyon Run HOA submitted an
application to amend the Canyon Run PUD to permit short term rentals as a use by right on Lot
4 of the development. It was noted that the property is 70 residential units and approval was
received from the homeowners. Vicki Eastman representing the homeowners association and
property management company was present to answer questions. There was a question about
the enforcement of the short term rentals that are being approved with these ordinances. It was
noted that the declarations allowed for the short term rental use and a majority vote approved
the short term use. Councilor Ferraro moved to approve Ordinance No. 10 -05, Series of 2010,
First Reading, Ordinance Approving an Amendment to the Nottingham Station PUD, Lot 4,
Nottingham Station Subdivision, to Allow Short Term Rental Use. Councilor Dantas seconded
the motion and it passed unanimously by those present (Sipes absent). It was noted the public
hearing on the two ordinances would be held at the March 23, 2010 meeting.
APPEAL BY TRAER CREEK PLAZA, LLC
Mayor Wolfe presented the Appeal by Traer Creek Plaza, LLC concerning the Traer Creek
Plaza, LLC Condominium Plat application pursuant to Section 16.12.050 of the Avon Municipal
Code. Eric Heil, Town Attorney, introduced the appeal as the Town Clerk's decision not to
place the item on the council agenda for several reasons outlined by Sally Vecchio representing
Community Development himself. The matter was reviewed on February 23, 2010 with
representatives from Traer Creek, the Town Council and town staff. The record provided was
reviewed by the Town Council and closed. He noted that the deliberation at this meeting would
result in direction to staff to draft the final findings of fact.
The Town Council evaluated the Johnson & Repucci Proposed Findings of Fact, Conclusions,
and Order first (Attachment A to minutes) and the following conclusions were provided:
1. Include as finding
2. Include as finding
3. Include as finding
4. Include as finding; it was noted that the town clerk's letter was dated January 3, 2010 but
should have been dated February 3, 2010
5. Include as finding; Suggested that there should more specificity when using the name
" Traer" in all of the findings.
6. Include as finding; Suggested that there should be more specificity to "and various other
cited sections" of the Avon Municipal Code; agreed with the intent
7. Do not include as a finding
Regular Council Meeting Page 2 of 4
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8. Do not include as a finding
9. Do not include as a finding
10. Do not include as a finding
11. Do not include as a finding
12. Do not include as a finding
13. Do not include as a finding
14. Include as finding
15. Include as finding
16. Do not include as a finding
17. Do not include as a finding
18. Do not include as a finding
19. Do not include as a finding
20. Do not include as a finding
21. Do not include as a finding
22. Do not include as a finding
23. Do not include as a finding
24. Do not include as a finding
The Town Council evaluated the Proposed Findings of Fact and Final Decision (Attachment B)
as written by Town Attorney, Eric Heil and the following conclusions were provided:
1. Include as finding
2. Include as finding
3. Include as finding
4a. Include as finding
4b. Include as finding; review this section by comparing it to the code, with attention to
ownership and possession language. What is the intent of the code
4c. Include as finding
4d. Include as finding
It was noted to include the footnotes as part of the findings
4e. Include as findings
4f. Include as finding
5a. Include as finding
5b. Include as finding
5c. Include as finding
5d. Include as finding
5e. Include something about paragraph of the development agreement; include as finding
6. Include as finding
It was also suggested to include Repucci's finding about the narrowness of the topic; his
number 15. Mayor Wolfe asked if there were any other findings the council would like to
include; it was agreed that the record was complete. Mayor Wolfe noted that no decision was
made at this time, and the matter would be continued to the March 23, 2010 meeting at which
time Council would consider the consolidated draft of the "Findings of Fact" and a final decision
would be discussed. Mayor Wolfe would ask that the findings be adopted at this meeting.
Some discussion ensued about the timeline for the decision making; it was noted that the 35
day time requirement would end on March 29, 2010.
Regular Council Meeting Page 3 of 4
10.03.09. doc
There being no further business to come before the Council, the regular meeting adjourned at
8 PM.
APPROVED:
Rich Carroll
Dave Dantas
Kristi Ferrarc
Amy Phillips
Albert "Buz"
Brian Sipes
Ron Wolfe
TFULLY SUBMITTED:
y, Town
Regular Council Meeting
10.03.09.doc
— 4RFs eL)
Page 4 of 4
TOWN OF AVON, COLORADO
APPEAL BY TRAER CREEK PLAZA LLC CONCERNING THE TRAER CREEK
PLAZA LLC CONDOMINIUM PLAT APPLICATION PURSUANT TO SECTION
16.12.050 OF THE AVON MUNICIPAL CODE
TRAER CREEK PLAZA LLC, a Colorado limited liability company,
Applicant - Appellant,
vs.
TOWN OF AVON, a Colorado home rule municipality, and
PATTI McKENNY, in her capacity as TOWN CLERK
of TOWN OF AVON,
Respondent - Appellee
ATTORNEYS FOR APPLICANT - APPELLANT:
Michael J. Repucci, #16163
JOHNSON & REPUCCI LLP
2521 Broadway, Suite A
Boulder, Colorado 80304
Telephone: (303) 442 -1900
Facsimile: (303) 442 -0191
PROPOSED FINDINGS OF FACT, CONCLUSIONS, AND ORDER
THE TOWN OF AVON TOWN COUNCIL (the "Avon Town Council "), having
reviewed the public record of this appeal as detailed on Exhibit 1 attached hereto, and the oral
arguments of the parties made at the February 23, 2010 appeal hearing of Applicant - Appellant
Traer Creek Plaza LLC ( "Traer "), hereby delivers its findings of fact, conclusions, and order
with respect to Traer's appeal of the January 3, 2010 decision of Avon Town Clerk Patty
McKenny (the "Town Clerk ") to decline to place Traer's Condominium Plat Application on the
Avon Town Council meeting agenda for February 9, 2010, or on a later Avon Town Council
meeting agenda (the "Town Clerk's Decision ").
I. FINDINGS OF FACT
1. Traer's appeal of the Town Clerk's Decision was timely submitted in accordance
with Avon Municipal Code Section 16.12.050(d).
(00113877 %k 2)
2. The February 23, 2010 hearing concerning Traer's appeal of the Town Clerk's
Decision was properly noticed as required by the Avon Municipal Code.
3. The Avon Town Council, acting in its capacity as a quasi-judicial tribunal,
properly has jurisdiction over the matters described in Traer's appeal and has full legal power
and authority to render its decision with respect to Traer's appeal.
4. The Town Clerk's Decision was premised on the two grounds set forth in the
Town Clerk's January 3, 2010 correspondence to Helaine R. Smith of Johnson & Repucci LLP,
to wit (a) the Town Clerk's determination that Traer's application "is not in compliance with the
standards of the applicable regulations as identified by Sally Vecchio, Community Development
Director," and (b) the Town Clerk's determination that " Traer Creek Metropolitan District is
effectively a co- applicant of the Application and is currently in default under the Village at Avon
Annexation and Development Agreement with the Town based on the memorandum from Eric
Heil, Town Attorney."
5. At the February 23, 2010 appeal hearing, Community Development Director Sally
Vecchio and Town Attorney Eric Heil presented oral arguments on the record in support of the
Town Clerk's Decision, and Michael Repucci of Johnson & Repucci LLP, appearing on behalf
of Traer, presented oral arguments on the record in support of Traer's position that the Avon
Town Council should overrule the Town Clerk's Decision and direct the Town Clerk to place
Traer's application on the next available Town Council agenda for public hearing.
6. With respect to the first ground asserted by the Town Clerk in support of the
Town Clerk's Decision, Community Development Director Sally Vecchio stated that neither the
preliminary plan nor the final plat for Village (at Avon) Filing No. 1 included approval of a
parking garage to be a separately owned public improvement which would provide the required
parking for the development of Lot 2, and that the proposed Condominium Plat is inconsistent
with the Off - Street Parking Regulations of the Village at Avon PUD and various other cited
sections of the Avon Municipal Code with respect to the proposed ownership of the Lot 2
underground parking areas.
7. Community Development Director Sally Vecchio stated that pursuant to the
Parking Table contained in Exhibit C to the Village at Avon PUD Guide, the total parking
requirements for the approved uses of Lot 2 is 215 parking spaces, but that Traer's proposed
Condominium Plat Application provided for a total of 263 on -site parking spaces on Lot 2
(consisting of 168 parking spaces in the parking garage and 95 surface parking spaces), thereby
resulting in 48 surplus parking spaces located on Lot 2.
8. Community Development Director Sally Vecchio further stated that if the 168
underground parking spaces are owned other than in co- tenancy as a general common element of
the proposed condominium, then only 95 parking spaces are available for Lot 2 as compared to
the 215 required parking spaces.
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9. Finally, Community Development Director Vecchio stated that Traer's proposed
Condominium Plat Note 19 restricting use of the 168 underground parking spaces to public
parking is inadequate because the restriction would continue for only so long as those parking
spaces are owned by Traer Creek Metropolitan District, rather than in perpetuity.
10. Mr. Repucci responded to Community Development Director Vecchio's
presentation by pointing out that pursuant to Mr. Repucci's November 23, 2009 correspondence
to Town Attorney Heil, Traer previously agreed to revise proposed Condominium Plat Note 19
to restrict use of the 168 underground parking spaces to public parking purposes in perpetuity
and without regard to ownership, and to grant the Town of Avon rights with respect to
enforcement of that restriction, thereby allowing Traer to meet, and exceed, the public parking
requirement.
11. Mr. Repucci stated that the sole parking regulations governing development
within the Village at Avon PUD are contained within Exhibit C to the Village at Avon PUD
Guide (the "Village Parking Regulations "), and that the parking regulations contained in the
Town of Avon Municipal Code do not apply to development within the Village at Avon.
12. Mr. Repucci further stated that the proposed parking plan described in Traer's
Condominium Plat Application is in compliance with the Village Parking Regulations and is
therefore fully permissible. Specifically, the Village Parking Regulations do not contain any
requirements regarding ownership of parking areas, and that ownership of parking spaces or
areas is not a relevant factor in calculating whether sufficient parking spaces are provided under
the requirements of the Village Parking Regulations.
13. With respect to the second ground asserted by the Town Clerk in support of the
Town Clerk's Decision, Town Attorney Eric Heil stated that Avon Municipal Code Section
16.12.010 requires all owners of land sought to be subdivided to be applicants for subdivision
approval, and that the interests of Traer Creek Metropolitan District in Lot 2 essentially make
Traer Creek Metropolitan District an "owner" and "co- applicant" for the purpose of applying
Town of Avon Municipal Code Section 16.12.050(c) (which, in Mr. Heil's opinion, purportedly
would allow the Town of Avon to decline to consider Traer's application until the alleged
defaults of Traer Creek Metropolitan District under the Village at Avon Annexation and
Development Agreement are cured).
14. Mr. Repucci stated that only Traer is listed as the owner of Lot 2 in the Eagle
County public records and on the Eagle County real property tax rolls. Mr. Repucci stated that
Traer Creek Metropolitan District does not have an ownership interest in the land within Lot 2,
that it owns only the improvements comprising the parking structure, and those improvements
are located within Lot 2 pursuant to the District's easement interest in Lot 2. Mr. Repucci
further stated that Section 16.12.010 expressly states "No person but the owner of land may
subdivide or make application to subdivide," and that the Town's regulations therefore prohibit
any parry other than the owner of the land from being an applicant. Mr. Repucci further
observed that if the Town of Avon takes the position that an easement interest owner is to be
treated as an "owner" and a "co- applicant" for purposes of applying Town of Avon Municipal
{00113877 \ 2}
Code Section 16.12.010, then all easement interest owners, including all utility providers, are
required to be similarly treated with respect to all past and future Town of Avon subdivision
applications, and there is no evidence that the Town has ever taken this position on any prior
subdivision application.
II. CONCLUSIONS
15. With respect to considering Traer's appeal of the Town Clerk's Decision, the
Avon Town Council is mindful that it cannot consider the relative merits of Traer's
Condominium Plat Application at this time. Rather, Avon Town Council is solely required to
determine if adequate grounds exist to support the Town Clerk's Decision to refuse to place
Traer's Condominium Plat Application on the Avon Town Council meeting agenda for February
9, 2010, or on any later Avon Town Council meeting agenda.
The Proposed Lot 2 Parking Plan is Not Inconsistent with the Village at Avon PUD Guide.
16. The sole parking regulations governing development within the Village at Avon
PUD are contained in the Village Parking Regulations.
17. There are no restrictions contained in the Village Parking Regulations which
would lead the Avon Town Council to determine that the proposed parking plan described in
Traer's Condominium Plat Application is inconsistent with the Village at Avon PUD Guide, and
therefore the Avon Town Council hereby concludes that the proposed parking plan described in
Traer's Condominium Plat Application is not inconsistent with the Village at Avon PUD Guide.
18. Notwithstanding the foregoing finding, however, following public hearing on
Traer's Condominium Plat Application the Avon Town Council reserves the right to consider
further whether other conditions or restrictions are required to be imposed on Lot 2 underground
parking spaces in order to ensure that an adequate number of parking spaces remain available on
Lot 2 to provide parking spaces for Lot 2 permitted uses in accordance with the requirements set
forth in the Village Parking Regulations.
Traer Creek Metropolitan District is not an "Owner of Land" within the Meaning of Town of
Avon Municipal Code Section 16.12.010, and therefore is not a "Co Applicant "for Purposes
of Applying Town of Avon Municipal Code Section 16.12.050(c).
19. The Avon Town Council concludes that the reference to "the owner of land"
contained in Avon Municipal Code Section 16.12.010 refers to the fee title owner of the land to
be subdivided, and not to any holders of other interests in that land.
20. Traer is the sole fee title owner of Lot 2 and therefore is considered the sole
"applicant" for purposes of applying Town of Avon Municipal Code Section 16.12.050(c).
21. A court of competent jurisdiction has not found Traer or any of its affiliates in
default of any agreement or obligation with the Town of Avon.
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22. Alternatively, even if Traer Creek Metropolitan District is deemed to be a "co-
applicant" for purposes of applying Town of Avon Municipal Code Section 16.12.050(c), a court
of competent jurisdiction has not found Traer Creek Metropolitan District or any of its affiliates
in default of any agreement or obligation with the Town of Avon.
Traer is Entitled to Placement of Traer's Condominium Plat Application on the First
Available Town ofAvon Town Council Agenda.
23. Since the Avon Town Council concludes that neither of the two grounds cited by
Avon Town Clerk Patty McKenny is applicable, Traer is entitled to placement of Traer's
Condominium Plat Application on the first available Avon Town Council agenda.
III. ORDER
24. Based on the foregoing, the Town Clerk's Decision is hereby reversed and
overruled.
25. Traer's Condominium Plat Application is hereby ordered to be placed on the first
available Avon Town Council agenda for public hearing and consideration by the Avon Town
Council.
DATED this _ day of 2010.
BY THE TOWN OF AVON:
Brian Sipes, Mayor Pro -Tem
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EXHIBIT 1
PUBLIC WRITTEN RECORD OF APPEAL
{00113877 \ 2}
Findings of Fact and Final Decision [town staff draft for Town Council consideration]
Town of Avon Town Council
RE: Traer Creek Plaza, LLC Condominium Subdivision Application
[March 3, 2010]
FINDINGS OF FACT AND FINAL DECISION
OF THE
TOWN COUNCIL OF THE TOWN OF AVON, COLORADO
REGARDING:
TRAER CREEK PLAZA, LLC APPEAL
ADOPTED 12010
The following findings of fact are adopted by the Town of Avon Town Council as the basis and
rationale for the final decision of the Town Council with regard to an appeal by Traer Creek
Plaza, LLC of a decision by the Town Clerk.
1. Application Background: Traer Creek Plaza, LLC submitted a condominium
subdivision application ( "Application ") to the Town of Avon on August 28, 2008, to subdivide
the building ( "Traer Creek Plaza") located on Lot 2, The Village (at Avon) Filing 1, Avon,
Colorado, to create 13 commercial units ( "Commercial Units "), one parking unit ( "Unit 1 "), and
16 limited common element storage units. Exhibit C of the Village at Avon PUD Guide ( "VAA
PUD Guide ") defines the quantity of required off -street parking for the proposed uses at Traer
Creek Plaza as a total of 215 required off -street parking spaces. The Application depicts a
surface parking area with a total of 95 spaces and a two level below grade parking garage with a
total of 168 parking spaces for a total of 263 off - street parking spaces. The Application proposes
to establish the surface parking area with 95 parking spaces as a common element (that would be
owned by an owner's association comprised of the Commercial Unit owners) and establish Unit
I as a separately defined condominium unit (which is not a common element or limited common
element of the proposed owner's association.) The Application and related materials clearly
indicate that the intent of the Application and the right of Traer Creek Metropolitan District
( "District ") is that Unit 1 will be conveyed to the District if the Application is approved by the
Town Council.
2. Decision of the Town Clerk: The Town Clerk provided a letter on February 3, 2010 to
the representative of Traer Creek Plaza, LLC informing Traer Creek Plaza, LLC that the
Application would not be placed on a Town Council agenda in accordance with Section
16.12.050 of the Avon Municipal Code ( "Municipal Code ") because (a) the Application is not in
compliance with the Town's regulations concerning subdivision and ownership of required
parking and (b) Traer Creek Metropolitan District is considered to be an applicant for the
purposes of the Application and that Traer Creek Metropolitan District is currently in default of
agreements with the Town of Avon. Traer Creek Plaza, LLC, represented by Michael Repucci,
provided a letter dated February 4, 2010 requesting an appeal of the Town Clerk's decision to the
Town Council in accordance with Section 16.12.050(d) of the Municipal Code.
3. Statement of Incorporation of List of Documents: The Town Council received a list of
documents and records related to the Application which is identified as, "Traer Creek Plaza, LLC
Subdivision Application, List of Documents, prepared February 25, 2010," ( "List of
Documents "). The Town Council finds that it has considered all documents cited in the List of
Documents, as well as has considered the Municipal Code and relevant state statutes, and
Page 1
Findings of Fact and Final Decision [town staff draft for Town Council consideration]
Town of Avon Town Council
RE: Traer Creek Plaza, LLC Condominium Subdivision Application
[March 3, 20101
incorporates all such documents into the findings of the Town Council. References to
documents and correspondence in this Findings of Fact and Final Decision cite the List of
Documents.
4. Findings Concerning Separation of Ownership of Required Parking:
a. VAA Agreement and PUD Guide: The VAA Agreement provides that the PUD Guide
is part of the "Development Plan" approved by the Town of Avon and the PUD Guide
is defined as, "The document approved by the Town that establishes land use and
development regulations for all of the Property and each of the Planning Areas within
the Property.s' The PUD Guide, I.3. states, "Parking Requirements. Parking shall be
in conformance with The Village (at Avon) Parking Regulations set forth in Exhibit C
to this PUD Guide." The PUD Guide, Exhibit C. sets forth a parking table in sub -part
A, includes a statement that "Shared Facilities" for parking is permitted in sub -part B,
establishes standards and formulas for reduction of parking requirements in mixed use
projects in sub -part C, and allows for reduction of parking dimensions for compact
cards in sub -part D. No regulation or standard in PUD Guide, Exhibit C expressly
addresses the issue of ownership of required parking or the separation of ownership of
required parking from the use or building which that parking serves.
The VAA Agreement provides that vested rights to develop within the Projec? includes
"The right to develop and complete the development of the Project (including, without
limitation, the right to receive all Town approvals necessary for development of the
Project) with conditions, standards and dedications which are no more onerous than
those imposed by the Town upon other developers in Town on a uniform, non-
discriminatory and consistent basis. ... "3 The PUD Guide also states, "Where the
Development Plan does not address a specific subject, the applicable provisions of the
Municipal Code shall, to the extent such Municipal Code provisions are not
inconsistent with any provision of the Development Plan or the Annexation and
Development Agreement, control the development of The Village (at Avon). "4
The PUD Guide does not expressly state that the parking regulations contained in
Exhibit C are the sole and exclusive regulations which can be applied to development
within The Village (at Avon) and the PUD Guide expressly states that the Municipal
Code shall control the development of The Village (at Avon) where the Development
Plan does not address a specific subject. The Development Plan does not address the
specific subject of establishing, permitting or allowing the parking required to serve a
use or building to be legally separated from the use or building which it is serving.
Item 29, VAA Agreement, Sections 1.1.9 "Development Plan" defined, 1.1.35 "PUD Guide" defined, and
Section 3.1 "PUD Zoning."
2 Item 29, VAA Agreement, Section 1. 1.28 "Project' defined.
3 Item 29, VAA Agreement, Section 3.4(d), similar statements are made in Item 25, VAA Agreement
Section 3.6 and PUD Guide, Section A.4.
° Item 29, PUD Guide, Section A.S.
Page 2
Findings of Fact and Final Decision [town staff draft for Town Council consideration]
Town of Avon Town Council
RE: Traer Creek Plaza, LLC Condominium Subdivision Application
[March 3, 2010]
b. Parking Regulations, Avon Municipal Code. The Municipal Code requires
condominium subdivision applications to be reviewed and approved by the Town
Council but does not expressly state the review process for condominium applications.
The Application was submitted, received and processed as a minor subdivision,
condominium final plat.5 Section 16.24.010 of the Municipal Code states that the final
plat must conform to the preliminary plan. Section 16.20.040 of the Municipal Code
states that the Town Council shall review the preliminary plan to determine whether the
proposed subdivision conforms to applicable zoning and subdivision regulations.
Section 17.24.010(a)(1) of the Municipal Code states the Town's Off - Street Parking
and Loading regulations shall apply, "For all buildings and structures erected, and all
uses of land established after the effective date of the ordinance codified in this
Chapter, accessory parking and loading facilities shall be provided in accordance with
the provisions of this Section and subject to any restrictions contained elsewhere in this
Chapter for the district in which such facilities are located." Section 17.08.040 defines
"accessory building or use" to mean, "a subordinate building or use which is located on
the same lot on which the main building or use is situated and which is reasonably
necessary and incidental to the conduct of the primary use of such building or main use,
Section 17.24.020(a)(1)a. of the Municipal Code states, "All parking spaces required to
serve buildings or uses erected, established, altered or enlarged after the effective date
of the ordinance codified in this Chapter shall be located on the same lot as the building
or use served, ..." Section 17.24.020(a)(2)a. of the Municipal Code states, "In cases
where parking facilities are permitted on land other than the lot on which the building
or use served is located, such facilities shall be in the same possession as the lot
occupied by the building or use to which the parking facilities are accessory. Such
possession shall be by deed or lease, and such deed or lease shall be filed with the
recorder of deeds of Eagle County." Section 17.24.020(a)(2)b. states that the
termination of lease for off -site parking shall classify the use as an illegal non-
conforming use and shall be subject to zoning enforcement action.
Section 17.08.440 of the Municipal Code states, "Lot means a parcel of real property as
shown with a separate and distinct number or letter on a plat recorded with the County
Clerk and Recorder, ..." and Section 16.08.110 of the Municipal Code states, "Lot
means the individual parcels or separate interests into which a tract of real property is to
be divided for purposes of occupancy or transfer of ownership."
C. Finding of intent and purpose. The Town Council finds that the intent and purpose of
Section 17.24.020 Off -Street Parking of the Municipal Code is to require the parking
which is accessory to the use or building that it serves to be in the same ownership as
the building or use that it serves in order to allow the Town to enforce such parking
requirement through its zoning enforcement authority. The Town Council further finds
e Item 21
Page 3
Findings of Fact and Final Decision [town staff draft for Town Council consideration]
Town of Avon Town Council
RE: Traer Creek Plaza, LLC Condominium Subdivision Application
[March 3, 2010]
that the requirement that accessory parking should remain in the same ownership as the
building or use it serves promotes the intent of the Municipal Code, stated in Section
17.04.030(2) "To lessen congestion on the roads and enhance pedestrian and vehicle
movement with the least detriment to environmental quality;" by maintaining the
Town's zoning enforcement authority to enforce an adequate amount of required off -
street parking.
d. Definition of Lot as Applied. The Town Council finds that the Application proposes to
establish Unit 1 as a separate "Lot" because Unit 1 would have a separate and distinct
number or letter on the Traer Creek Plaza condominium map to be recorded in the
Eagle County Clerk and Recorder's Office and that Unit 1 would be a separate interest
of real property divided for the purpose of transfer of ownership. The Town Council
further finds that the Application does not propose that Unit 1 would be in the same
possession by deed or lease as the building or use for which Unit 1 is necessary to meet
the off -street parking requirements. Correspondence from Ms. Sisneros, legal counsel
for Traer Creek Metropolitan District, confirms the intent of the Application is to create
a legal, separate ownership interest in Unit 1 that is separate from the ownership of the
remainder of the Commercial Units in the Application.
e. Subdivision Variance Application Process. Town Council finds that Section 16.12.020
Variances of the Municipal Code permits an applicant to apply for a variance from the
strict or literal application of the subdivision regulations where such application would
result in undue hardship or where the regulations are not materially important, in a
planning sense, to the orderly controlled development of the tract in question. Town
Council finds that the Subdivision Variance application process would be the
appropriate subdivision application process to consider a subdivision application where
the applicant proposes the separation of ownership of the accessory parking from the
building or use that it serves.
L Final Decision. Based on the findings stated above, the Town Council finds that the
Application does not provide the required amount of accessory parking to serve the
building or use within the same ownership as the building or use that such accessory
parking serves, and therefore, the Application is not in compliance with the applicable
standards of the Municipal Code. Pursuant to Section 16.12.050 of the Municipal Code
the Application as submitted is not entitled to be placed on a meeting agenda of the
Avon Town Council for consideration by the Avon Town Council.
5. Findings Concerning Traer Creek Metropolitan District as an Applicant:
a. Municipal Code. Section 16.12.010 of the Municipal Code states, "No person but the
owner of land may subdivide or make application to subdivide such land without first
having obtained a properly acknowledged power of attorney to subdivide such land
from the owner or owners thereof of from the authorized agents of said owners."
Chapter 16.08 of the Municipal Code does not define "owner," "agent" or "land" The
6 Item 14, Exhibit 13, Pages 1 and 2.
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Findings of Fact and Final Decision [town staff draft for Town Council consideration]
Town of Avon Town Council
RE: Traer Creek Plaza, LLC Condominium Subdivision Application
[March 3, 2010]
Town has previously and consistently interpreted "owner of land" to include the owner
of buildings for the purposes of condominium subdivision applications. Section
16.08.080 of the Municipal Code states, "Easement means a conveyance or reservation
of an incident of ownership in real property for one (1) or more specific purposes."
b. Development Agreement and related documents. The Town of Avon issued a building
permit for Traer Creek Plaza in April of 2004. Subsequent to the issuance of the
building permit by the Town of Avon, Traer Creek -L2, LLC (the predecessor to Traer
Creek Plaza, LLC and referred to as "Developer ") and Traer Creek Metropolitan
District ( "District') entered into a Development Agreement, dated December 1, 2004,
a Common Easement Agreement dated December 1, 20048, and a Parking Facility
Easement Agreement, dated December 10, 20049. The Development Agreement sets
forth provisions in Section 4 Submission to Condominium Regime regarding
cooperation in the submission of an application to the Town of Avon to establish a
condominium regime ( "Condominium Regime "). Section 4(b) of the Development
Agreement states that the District covenants to pay the Developer twenty percent (20 %)
of all costs and expenses related to the formation of the Condominium Regime. Section
4(b) of the Development Agreement states, "The Developer acknowledges and agrees
that the District shall be entitled to review the proposed declarations, maps, bylaws, and
other documents or instruments to be entered into or produced in connection with the
establishment of the Condominium Regime." Section 4(b) of the Development
Agreement also states that the Developer shall immediately convey Unit 1 to the
District by special warranty deed upon approval of the condominium application. Traer
Creek -L2, LLC granted and conveyed an easement to the District to construct and
maintain a parking structure and all appurtenances by the Parking Facility Easement
Agreement.
C. Statements of Ownership. Ms. Sisneros states that Traer Creek Metropolitan District
presently owns the parking garage which the Application proposes to establish as Unit
1 of the condominium.10 Mr. Ayers confirms that Traer Creek Metropolitan District
presently owns the parking garage which the Application proposes to establish as Unit
1 of the condominium.] 1 Mr. Repucci also stated and confirmed at the February 23,
2010 hearing that Traer Creek Metropolitan District presently owns the parking garage
which the Application proposes to establish as Unit 1 of the condominium.
d. Default. The Town Council finds that Traer Creek Metropolitan District is in default of
the VAA Agreement with the Town of Avon based upon notices of default 12 and claims
asserted in the District Court case of Town of Avon versus Traer Creek Metropolitan
Item 24
s Item 25
9 Item 23
10 Item 7, page 3
" Item 6, page 1
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Findings of Fact and Final Decision [town staff draft for Town Council consideration]
Town of Avon Town Council
RE: Traer Creek Plaza, LLC Condominium Subdivision Application
[March 3, 2010]
District, 2008 CV 385 filed in Eagle County, which pleadings are incorporated into the
record by this reference.
e. Final Decision. Based on the findings stated above, the Town Council finds that the
Development Agreement, Parking Facility Agreement and Common Easement establish
a beneficial ownership interest in real estate for the benefit of Traer Creek Metropolitan
District; the obligation of Traer Creek Metropolitan District to cooperate and participate
in a condominium subdivision application for the Traer Creek Plaza building; the right
of Traer Creek Metropolitan District to review, participate and approve a condominium
subdivision application; the obligation of Traer Creek Metropolitan District to pay a
portion of the condominium subdivision application fees and costs; and the right of
Traer Creek Metropolitan District to receive fee ownership to a separate ownership
interest described as Unit 1 of the Application; and that representatives of the
Application and Traer Creek Metropolitan District have stated and confirmed that Traer
Creek Metropolitan District is presently the owner of the parking garage area.
Therefore, the Town Council finds that Traer Creek Metropolitan District is the owner
of a real property interest in Lot 2, The Village at Avon Filing No. 1, Avon, Colorado;
that Traer Creek Metropolitan District has authorized Traer Creek Plaza, LLC to submit
a condominium application on behalf of Traer Creek Metropolitan District's ownership
interest; and that Traer Creek Metropolitan District is an applicant for the purposes of
Section 16.12.050 of the Municipal Code. Town Council also finds that Traer Creek
Metropolitan District is in default of the VAA Agreement with the Town of Avon.
Pursuant to Avon Municipal Code Section 16.12.050, the Application as submitted is
not entitled to be placed on a meeting agenda of the Avon Town Council for
consideration by the Avon Town Council until such time as Traer Creek Metropolitan
District is not in default with the Town of Avon or Traer Creek Metropolitan District is
divested of any beneficial real property ownership interest in Lot 2, The Village at
Avon, Filing NO. 1, Town of Avon, Colorado.
6. Limitation of Findings of Fact and Final Decision: The Findings of Fact and Final
Decision contained herein are limited to consideration of the Town Clerk's decision to not place
the Application on an agenda of the Town Council.
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