TC Ord. No. 2009-02 CO Repealing Chapter 17.14 & Enacting A New Chaper 17.14 of the Avon Muni CodeTOWN OF AVON, COLORADO
ORDINANCE NO. 09-02
Series of 2009
AN ORDINANCE OF THE TOWN OF AVON, COLORADO,
REPEALING CHAPTER 17.14 AND ENACTING
A NEW CHAPTER 17.14 OF THE AVON MUNICIPAL CODE
WHEREAS, the Town of Avon, Colorado, ( "Town ") is a home rule municipality duly
organized and existing under Article XX of the Colorado Constitution and the Town of Avon
Home Rule Charter of 1978 ( "Charter "); and,
WHEREAS, Town Council initiated amendments to the Zoning Code of the Town of
Avon on January 13, 2009, in accordance with Section 17.28.020 of the Avon Municipal Code;
and,
WHEREAS, the Avon Planning and Zoning Commission conducted a public hearing on
February 3rd, 2009, after posting notice in accordance with Section 17.12.100 of the Avon
Municipal Code; and,
WHEREAS, the Avon Town Council conducted a public hearing on February 10th, 2009,
after posting notice in accordance with Section 17.12. 100 of the Avon Municipal Code; and,
WHEREAS, the Avon Town Council finds that the repeal and reenactment of Chapter
17.14 Vested Property Rights will improve the Town's administration, processing and review of
vested property rights; and,
WHEREAS, approval of this Ordinance on first reading does not constitute a
representation that the Town Council, or any member of the Town Council, supports, approves,
rejects, or denies the proposed vested rights regulations; and,
WHEREAS, the Town Council finds that the passage of this Ordinance will promote and
preserve the health, safety and welfare of the Avon community;
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, the following:
Section 1. Recitals Incorporated. The recitals contained above are incorporated herein by
reference and are adopted as findings and determinations of the Town Council.
Section 2. Chapter 17.14 Repealed and Reenacted.
Chapter 17.14 is hereby repealed in its entirety and reenacted to read as follows:
Ord. No. 09 -02 A Vested Regulations
Page 1 of 7
CHAPTER 17.14
Vested Property Rights
17.14.010 Purpose.
The purpose of this Section is to provide procedures necessary to implement the provisions of Article
68 of Title 24, C.R.S., as amended.
17.14.020 Definitions.
As used in this Section, unless the context otherwise requires:
Community planning document means the Town of Avon Comprehensive Plan, any other planning
documents adopted by the Town of Avon through a public hearing process, and any planning
document adopted by other governmental and quasi - governmental entities that provide public services
or facilities to the Town of Avon or which include the Town of Avon within their service or planning
boundaries.
Site specific development plan means a planned unit development plan, or any amendment thereto,
approved pursuant to Section 17.20.110 of this Code, together with a development agreement
approved pursuant to Section 17.14.060 hereof. A site specific development plan that creates vested
property rights may also include other development approvals if approved at the discretion of the
Town Council upon request by a property owner; however, such request shall not result in an
application for a development approval other than a planned unit development plan to be treated as a
site specific development plan for the purposes of C.R.S. §24 -68- 102.5(1).
Vested property right means the right to undertake and complete the development and use of
property under the express terms and conditions of a site specific development plan.
17.14.030 Vested property right created.
(a) A vested property right shall be deemed to have been created only upon the approval of a site
specific development plan in accordance with this Chapter.
(b) A vested property right shall only be created if approved by ordinance which may be combined
with an ordinance approving a site specific development plan and an accompanying development
agreement. Amendments to any site specific development plan shall be subject to this Chapter and shall
have a new vested property right as determined by the Town Council. Any approval of a site specific
development plan, or amendment to an existing site specific development plan, that creates vested
property rights shall be adopted by ordinance as a legislative act and shall be subject to referendum.
When creating a vested property right, Town Council may expressly exempt, in whole or in part,
administrative amendments to site specific development plans from additional review and approval by
Town Council under this Chapter.
(c) The establishment of a vested property right shall not preclude the application of ordinances or
regulations which are general in nature and which are applicable to all properties or a similarly situated
class of properties subject to land use regulation by the Town, including but not limited to the regulations
contained in Title 15 of this Code, regulations concerning subdivision improvements and right -of -way
dedications, and regulations establishing requirements and specifications for any public infrastructure or
Ord. No. 09 -02 v3 Vested Regulations
Page 2 of 7
public facility improvements. Ordinances or regulations which are general in nature and which are
applicable to all properties or a similarly situated class of properties subject to land use regulation by the
Town shall not be deemed to alter, impair, prevent, diminish, impose a moratorium on development, or
otherwise delay the development or use of a property with vested property rights regardless of the
financial impact of such ordinance or regulation.
(d) The establishment of a vested property right shall not preclude the application of any legislatively
adopted fees which are general in nature, uniform in character and applicable to all properties or a
similarly situated class of properties.
17.14.040 Notice and hearing.
No site specific development plan shall be approved until after providing notice and conducting public
hearings in compliance with Chapter 17.12. 100 of this Code.
17.14.050 Notice of approval.
(a) Each map, plat, site plan or other document constituting a site specific development plan shall
contain the following language:
Approval of this plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as
amended, and Chapter 17 of the Avon Municipal Code as amended.
(b) The failure of the document constituting a site specific development plan to contain the language
specified in sub - section (a) above shall invalidate and void the creation of the vested property right. A
notice stating that a vested property right has been created shall be published once by the Town in a
newspaper of general circulation in the Town not more than fourteen (14) days after final adoption of the
ordinance approving the site specific development plan. The notice shall include the following
information:
(1) A statement advising the public of the site specific development plan approval, including the
name of the project, the type and intensity of the use approved, and the specific property or
development parcels affected;
(2) A statement that a vested property right has been created in accordance with Article 68 of Title
24, Colorado Revised Statutes, and Chapter 17 of the Avon Municipal Code, including the
duration of the vested property right; and,
(3) A statement that the citizen's rights of referendum shall run from the date of publication.
17.14.060 Duration of vested right.
(a) A property right vested pursuant to this Chapter after June 1, 2006, shall remain vested for a
period of three years. Town Council may approve a period of vested property rights exceeding three
years by approval of a development agreement, which shall be part of the site specific development plan.
(b) The guidelines in this section 17.14.060 (b) shall be considered when determining whether to
grant vested property rights for a period greater than three years, provided that site specific development
plans that are granted vested property rights for a period greater than three years because of the size,
phasing, or absorption rate of such site specific development plan should have separate vesting created for
Ord. No. 09 -02 v3 Vested Regulations
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the various phases of the development, as set forth in 17.14.060(d). It shall be the burden of the applicant
to propose appropriate reasons for granting a vested property right that is greater than three years.
(1) The size and phasing of the development, and specifically but not limited to whether the
development can be reasonably completed within the vested rights period;
(2) Economic cycles, and specifically but not limited to resort community economic cycles,
regional and state economic cycles, and national economic cycles;
(3) Market conditions, and specifically but not limited to absorption rates for leasing and sales of
similar development projects;
(4) Compliance with the Town of Avon Comprehensive Plan and other community planning
documents;
(5) Proposed public amenities and benefits that enhance the project and the overall attractiveness
of the Avon community, including the degree to which such public amenities and benefits are
defined in terms of design, timeframe, and phasing with development;
(6) Projected public financial benefits or costs estimated to be caused by the development
project, including the timeframe for realization by the Town or other public entities and
potential costs for operation and maintenance of any new public amenities or infrastructure
dedicated to the Town or other public entities;
(7) The breadth and scope of the requested vested property right, including but not limited to the
extent to which such vested property right restricts the Town's ability to apply future
legislatively adopted fees and regulations for the purpose of providing public infrastructure,
public services and public facilities and for the purpose of meeting evolving community
needs;
(8) The terms of any existing site specific development plans with development agreements for
the applicant's property that specify the duration of vested property rights;
(9) Any proposed modifications to previously approved vested property rights to address
changed conditions within the Avon community, compliance with the comprehensive plan
and other community planning documents, or performance of previously approved site
specific development plans; and,
(10) Any other factors deemed relevant by Council when determining to grant a vested property
right for a period greater than three years.
(c) The Town may approve a site specific development plan subject to such terms and conditions as
may reasonably be necessary to protect the public health, safety and welfare of the Avon community.
(d) Any site specific development plan for a multiple -phase development approved after June 1,
2006, may have separate vesting created for each phase. The vesting for any subsequent phase may be
contingent upon completion of the preceding phase and review by the Town Council. Such review shall
include but not be limited to whether the landowner, developer, successors or assigns are in compliance
with its obligations to the Town, including but not limited to the terms and conditions of a site specific
development plan, a development agreement and any other agreements between the landowner,
Ord. No. 09 -02 v3 Vested Regulations
Page 4 of 7
developer, successor and assigns and the Town, as they may have been amended from time to time.
17.14.070 Extension of Vested Property Rights.
A landowner may request an extension of vested property rights by submitting an application for
extension of vested property rights at least six (6) months prior to the expiration of the vested property
rights. No application for extension of a vested property right shall be approved until after providing
notice and conducting public hearings in compliance with Chapter 17.12.100 of this Code. The
guidelines in 17.14.060(b) shall be considered when determining whether to grant an extension to a
vested property right. An extension of a vested property right shall be approved by ordinance. The notice
of approval provisions in 17.14.050 above shall apply to any approval for extension of vested property
rights.
17.14.080 Forfeiture of Vested Property Rights
(a) Failure to abide by the terms and conditions of a vested property right will result in a forfeiture of
the vested property rights in accordance with the procedures set forth herein.
(b) The process to consider forfeiture of vested property rights shall be initiated by passage of a
resolution by the Town Council stating the grounds therefore.
(c) No vested property right shall be deemed forfeited until after providing notice and conducting a
public hearing. Notice shall be provided by publishing notice in a newspaper of general circulation,
posting notice in the designated official places of posting, and mailing notice to the property owner sent to
the address of record according to the County Assessor's records via first class United States mail at least
thirty (30) days prior to the date of a hearing. A copy of the resolution initiating the process to consider
forfeiture of the vested property right shall be included with the mailed notice to the property owner.
(d) At the hearing, the Town Council shall consider all evidence and testimony presented concerning
any failure to abide by the terms and conditions of a vested property right. The Town Council may
continue the public hearing to allow additional evidence to be gathered and presented.
(e) If Town Council finds a failure to abide by the terms and conditions of the vested property right,
the Town Council may take action by ordinance to declare the vested property rights forfeited. The
forfeiture of a vested property right shall have no effect upon public streets, alleys, rights -of -way, or other
lands or easements previously dedicated or conveyed to the Town or other public entities pursuant to the
terms of a site specific development plan. Upon forfeiture of vested property rights, the site specific
development plan shall be subject to all zoning, land use, and general regulations in effect at the time of
forfeiture and as such may be amended from time to time thereafter.
Section 3. Codification. The codifier of the Town's Municipal Code, Colorado Code
Publishing, is hereby authorized to make such numerical and formatting changes as may be
necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code.
Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
Ord. No. 09 -02 v3 Vested Regulations
Page 5 of 7
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term "provision" means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term "application" means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect seven days after public notice
following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Ord. No. 09 -02 v3 Vested Regulations
Page 6 of 7
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED on
the 27th day of January, 2009, AND REFERRED TO PUBLIC HEARING and setting such
public hearing for 5:30 p.m. on the 10th day of February, 2009, at the Council Chambers of the
Avon Municipal Building, located at 400 hmark Road, Avon, Colorado.
Ronald C. Wolfe, Mayor
Published by posting in at least three public places in Town and posting at the office of the Town
Clerk at least seven days prior to f ction by the Town Council.
ATTEST: �0`NN OFq�o�
c
Patty McKenn o Clerk•'• .
INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND
ORDERED PUBLISHED BY POSTING on the 10th day of February, 2009.
4 2i cf�,
Ronald C. Wolfe, Mayor
Published by posting by title in at least three public places in Town and posting by title at the
office of the Town Clerk.
�pW N OFq�o�
ATTEST:
P'n
l .s�
Patty McKenh y, Cler
Ord. No. 09 -02 v3 Vested Regulations
Page 7 of 7
WIDNER MICHOW & COX.,.
ATTORNEYS AT LAW
MEMORANDUM
TO: Honorable Mayor Wolfe and Town Council members
CC: Larry Brooks, Town Manager; Eric Heidemann, Community
Development Director
FROM: Eric Heil, Town Attorney
DATE: February 4, 2009
SUBJECT: Vested Rights Regulations
Summary: Ordinance No. 2009 -2 proposes revisions to the Vested Rights Regulations in
Chapter 17.14 of the Zoning Code of the Town of Avon. The proposed revisions would be
implemented by repeal and reenactment of Chapter 17.14 in its entirety. Town Council initiated
the amendments on January 13, 2009. A public hearing was held by the Avon Planning and
Zoning Commission on February 3, 2009. A public hearing is scheduled by the Avon Town
Council on February 10, 2009. The Vested Property Rights regulations implement the Vested
Property Rights ( "VPR ") statutes set forth in Colorado Revised Statutes §24 -68 -101 et.seq.
A copy of the January 28, 2009 memorandum is also included with this memorandum for
convenience along with a clean version of Ordinance No. 2009 -2 and a legal comparison
version of Ordinance No. 2009 -2 that shows all revisions from Town Council comments at first
reading as well as a request for clarification from the Avon Planning and Zoning Commission.
As of the time of preparing this memorandum, one comment was received from Mikaela Rivera,
presenting the Village at Avon, which comment letter is attached to this memorandum.
Overview of Vested Rights Regulation Revisions: The revisions to the Vested Rights
regulations present three major changes, including (1) elimination of the current five year
maximum duration for vested rights, (2) establishment of guidelines for consideration of vested
rights in excess of three years, and (3) establishment of specific procedures for declaring
forfeiture of vested rights. Other revisions include fine tuning the regulations to implement and
comply with the VPR statutes and coordinate with existing processes in the Avon Municipal
Code.
Planning Commission Recommendation: The Avon Planning and Zoning Commission
recommended adoption of the revised vested property rights regulations but recommended,
1. The Council and staff shall incorporate language to Section 17.14.030(c) clarifying
the intent or meaning with regard to ordinances of general applicability." An additional sentence
has been included to clarify that vested property rights shall not preclude ordinances of general
Widner Michow & Cox LLP Eric Heil, Esq., A.I.C.P.
13133 East Arapahoe Road, Suite 100 Direct Tel 303.754.3392
Centennial, CO 80112 eheil @wmcattorneys.com
applicability regardless of the financial impact of such ordinance or regulation, which revision
reads as follows:
17.14.030 Vested property right created.
(c) The establishment of a vested property right shall not preclude the application of
ordinances or regulations which are general in nature and which are applicable to all
properties or a similarly situated class of properties subject to land use regulation by the
Town, including but not limited to the regulations contained in Title 15 of this Code,
regulations concerning subdivision improvements and right -of -way dedications, and
regulations establishing requirements and specifications for any public infrastructure or
public facility improvements. Ordinances or regulations which are general in nature and
which are applicable to all properties or a similarly situated class of properties subject to
land use regulation by the Town shall not be deemed to alter, impair, prevent, diminish,
impose a moratorium on development, or otherwise delay the development or use of a
property with vested property rights regardless of the financial impact of such ordinance
or regulation.
Ordinances and regulations that are general in nature include all ordinances and regulations
that are legislatively adopted. Ordinances or regulations that impose a site specific requirement
that are applicable only to an individual property are exactions and the imposition of such
ordinances or regulations would likely be prohibited by previously approved vested property
rights.
Requested Action: Town Council consideration of Ordinance No. 2009 -2 on second and final
reading is requested.
Widner Michow & Cox LLP Eric Heil, Esq., A.I.C.P.
13133 East Arapahoe Road, Suite 100 Direct Tel 303.754.3392
Centennial, CO 80112 eheil @wmcattorneys.com
OTTENJOHNSON
ROBINSON NEFF +RAGONETTI,.
February 4, 2009
BY E -MAIL RYOULE @SHERMANHOWARD.COM
Robert Youle
Sherman and Howard
633 Seventeenth Street
Suite 3000
Denver, CO 80202
Re: Proposed Revised Ordinance for Vested Rights
Dear Robert:
MIKAELA V. RIVERA
303 575 7577
MRIVERA @OTTENJOHNSON.COM
This letter responds to your emails of January 26 and 27, 2009 (attached) relating to the proposed ordinance
regarding vested property rights. We disagree with your assertion that Town Council for the Town of Avon's
( "Town ") repeal of its existing vested property rights regulations and adoption of the proposed amendments to
Chapter 17 of the Avon Municipal Code (the "Code ") would render Traer Creek -RP LLC's ( "Traer Creek ")
claims moot. Traer Creek's current claims go beyond the Town's application of the current vested rights
ordinance and include a request for declaratory judgment the Town's application of any vested rights term to
Traer Creek that is inconsistent with the remaining 35 -year vested rights term constitutes a default and breach of
the Annexation and Development Agreement by the Town. Thus, Traer Creek's claim relating to any conduct
of the Town that seeks to limit the remaining 35 -year vested rights term is still viable.
There is a well- recognized exception to the mootness doctrine for just this circumstance —where an issue is
capable of repetition yet evades review. The Town appears to be taking the position that it can periodically
repeal and adopt vested property rights regulations to avoid review of any particular legislation, while at the
same time claiming that such regulations can be applied to Traer Creek in contravention of Traer Creek's vested
property rights. The mootness doctrine does not protect such conduct, and we feel confident the Court would
agree.
Furthermore, we are disappointed not only that the proposed revised Chapter 17 of the Code does not contain an
acknowledgement of vested rights terns that have been established in preexisting agreements, but blatantly
disregards Traer Creek's agreement, in which amendments are also within the scope of the vested rights for the
duration of the original vesting term. We hoped that the Town would have used the time the litigation has been
stayed more productively and as an opportunity to adequately acknowledge the Town's previous vested rights
950 SEVENTEENTH STREET SUITE 1600 DENVER COLORADO 80202 P 303 825 8400 F 303 825 6525 OTTENJOHNSON.COM
DENVER ASPEN VAIL VALLEY STEAMBOAT SPRINGS
Robert Youle
February 4, 2009
Page 2
agreements with Traer Creek. Notwithstanding the Town's apparent refusal to honor its existing agreements,
we propose the following revisions to the proposed Chapter 17.14:
Add to 17.14.030(b) after second sentence:
, unless such amendments are subject to preexisting vested rights terms as
provided in a site specific development plan or other applicable agreement.
Add new 17.14.090
Nothing in this Chapter 17.14 shall be construed or applied to alter or
impair the terms of any vested rights established by agreement.
Specifically, the vested property rights established in the Village (at Avon)
PUD Guide, dated October 13, 1998 and the Annexation and Development
Agreement entered into on or about October 13, 1998 by and between
EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II,
LLC, and PVRT NOTT III LLC and the Town, as amended from time to
time, are entitled to the remaining duration of the vested rights term as set
forth therein and continue to be subject to the provisions of the Avon
Municipal Code in effect in 1998.
Traer Creek will dismiss its current claims against the Town if the Town incorporates the foregoing language, or
other substantially similar language that unequivocally acknowledges that the Code amendment does not modify
the vested rights established in the Town's and Traer Creek's prior agreements, including any amendments to
Traer Creek's !IUD; agrees to pay Traer Creek's legal fees and costs incurred in the current lawsuit; and
acknowledges that its attempt to apply the prior vested rights ordinance to amendments to the PUD was contrary
to the existing vested rights agreements. Given that litigation could have been avoided altogether if the Town
had been responsive to Traer Creek's repeated requests for the Town's written acknowledgement that its
commitments under the existing agreements and the scope of vested rights granted therein preclude application
of the subsequent regulations that have the affect of impairing Traer Creek's rights, we fail to see how the Town
cannot take seriously Traer Creek's claim for attorneys' fees and costs. We sincerely hope that the Town will
take this opportunity to honor its contractual obligation to Traer Creek and not adopt yet another ordinance that
fails to acknowledge the Town's existing contractual obligations.
Sincerely,
Mikaela V. Rivera
for the Firm
MVR
Robert Youle
February 4, 2409
Page 3
884409.1
cc: Larry Brooks
Eric Heil
Munsey Ayers
Magnus Lindholm
Michael Lindholm
Marcus Lindholm
Rivera, Mikaela V.
From: Youle, Robert E. [RYOULE @shermanhoward.com]
Sent: Tuesday, January 27, 2009 5:42 PM
To: Rivera, Mikaela V.
Subject: RE: Town of Avon / Proposed Revisions to Municipal Code Chapter 17
Mikaela:
Thanks for your note. Second reading of the ordinance will take place at the Council's February 10th meeting, and the
Town's staff and the Council will be more than happy to consider any comments you have. Obviously, the sooner you
can provide comments, the more time the staff and Council will have to consider them.
I don't agree that additional language is needed to resolve the existing litigation between Traer Creek =RP, LLC and the
Town of Avon. The existing lawsuit asserts violations of your client's contract rights based upon: (i) the Town's
enactment in May of 2005 of Chapter 17.14 of the Municipal Code; (ii) your client's submission on July 12, 2007 of an
application to amend the Village at Avon PUD; (iii) the Town Planning and Zoning Commission's October 16, 2007
recommendation that your client's application be approved on the condition that the amendment be subject to a five year
vesting period; and (iv) the Town Council's approval on first reading of an ordinance that, if adopted, would have
approved your client's application subject to a five year vesting period.
Your client has already withdrawn the application which forms the basis of its complaint. If Council approves the
proposed. amendments to Chapter 17, the ordinance upon which the lawsuit is based will have also been repealed. Your
client's claims would clearly be moot and subject to dismissal. Filing an amended complaint would not save the lawsuit
frorn dismissal, unless your client submitted a new application. and the Council denied it. Indeed, an amended complaint
filed now would be subject to dismissal as premature, because (1) section 17.14.060 of the new ordinance authorizes the
Council to approve a period of vested property rights greater than three years, and (2) a factor to be considered by the
Council in reviewing any application for a vested right greater than three years is "[t]he terms of any existing site specific
development plans with development agreements for the applicant's property that specify the duration of vested property
rights."
I also cannot take seriously your suggestion that the Town pay your client's attorneys fees and costs as a condition of
dismissing a lawsuit which itself is subject to dismissal as moot. Indeed, if Council does approve the proposed Chapter 17
amendments, the Town will expect your client promptly to dismiss its complaint without prejudice. if it does not, the
Town will move for summary judgment on grounds of mootness, and it will be the Town who seeks an order requiring
Traer Creek RP, LLC to pay attorneys fees and costs.
From: Rivera, Mikaela V. [ mailto :mrivera @ottenjohnson.com]
Sent: Tuesday, January 27, 2009 11:56 AM
To: Youle, Robert E.
Subject: RE: Town of Avon / Proposed Revisions to Municipal Code Chapter 17
Rob,
We just learned that there will be a first reading of the amended vested rights ordinance tonight. We will not have our
comments to the revised version by then, but please let me know when the second reading will be so we can be sure to
provide our comments before then.
Generally speaking, in order for the ordinance to be sufficient to resolve this case, there needs to be a clear statement
that the vested rights ordinance does not apply to, impair or adversely affect the terms of vested rights established in any
preexisting agreements. The language also should acknowledge that that the ordinance will not impact amendments to
existing agreements to the extent those amendments are also subject to a previously established vested rights term. We
will provide such language prior to the second reading, unless we hear that the Town will add it on its own.
in addition to adequate and clear language protecting vested rights terms in prior agreements, Traer Creek will not
dismiss its claims unless the Town also compensates Traer Creek for its attorneys' fees and costs associated with
bringing a case to protect rights that the PUD and annexation agreement plainly protect and the Town acknowledges
2/4/2009
that its attempt to apply the prior vested rights ordinance to amendments to the PUD was contrary to the existing vested
rights agreements.
Apart from the issues raised in this case, we also have concerns about the language of the vested rights ordinance
generally, which we are willing to discuss if the Town is interested.
Feel free to contact me to discuss any of this further.
Mikaela
From: Youle, Robert E. [ mailto :RYOULE @shermanhoward.com]
Sent: Monday, January 26, 2009 10:30 AM
To: Rivera, Mikaela V.
Cc: Eric Heil
Subject: RE: Town of Avon / Proposed Revisions to Municipal Code Chapter 17
Attached is the final version of the vested rights ordinance that will be presented to the Avon Town Council for first
reading. Also attached is a redline showing changes from the version I sent you on January 14th
As you will see, Code section 1.7.14.030 was amended to clarify that amendments to site specific development plans are
subject to Chapter 17, and that Council may exempt administrative amendments from review under Chapter 17. There
were also a couple non- substantive amendments.
From: Youle, Robert E.
Sent: Wednesday, January 14, 2009 1:01 PM
To: 'Rivera, Mikaela V.'
Cc: 'Eric Heil'; 'Larry Brooks'
Subject: Town of Avon / Proposed Revisions to Municipal Code Chapter 17
Mikaela:
Attached is a proposed revision to Chapter 17.14 of the Avon Municipal Code. This is the form that I expect will be
presented to the Town Council for its consideration, and your client is welcome to provide comments.
2/4/2009
Rivera, Mikaela V.
From: Youle, Robert E. [RYOULE @shermanhoward.com]
Sent: Monday, January 26, 2009 10:30 AM
To: Rivera, Mikaela V.
Cc: Eric Heil
Subject: RE: Town of Avon / Proposed Revisions to Municipal Code Chapter 17
Follow Up Flag: Follow up
Flag Status: Red
Attachments: Ord No 09 -02 Vested Rights Regulations.pdf; CHAPTER 17 v3 comp v2.pdf
Attached is the final version of the vested rights ordinance that will. be presented to the Avon Town Council for first
reading. Also attached is a redline showing changes from the version l: sent you on January 14th.
As you will see, Code section 17.14.030 was amended to clarify that amendments to site specific development plans are
subject to Chapter 17, and that Council may exempt administrative amendments from review under Chapter 17. There
were also a couple non- substantive amendments.
From: Youle, Robert E.
Sent: Wednesday, January 14, 2009 1:01 PM
To: 'Rivera, Mikaela V.'
Cc: 'Eric Heil'; 'Larry Brooks'
Subject: Town of Avon / Proposed Revisions to Municipal Code Chapter 17
Mikaela:
Attached is a proposed revision to Chapter 17.14 of the Avon Municipal Code. "],his is the form that T expect will be
presented to the Town Council for its consideration, and your client is welcome to provide comments.
2/4/2009
wm &e
WIDNER MICHOW & COX-
ATTORNEYS AT LAW
MEMORANDUM
TO: Honorable Mayor Wolfe and Town Council members
CC: Larry Brooks, Town Manager; Eric Heidemann, Community
Development Director
FROM: Eric Heil, Town Attorney
DATE: January 23, 2009
SUBJECT: Vested Rights Regulations
Summary: Ordinance No. 2009 -2 proposes revisions to the Vested Rights Regulations in
Chapter 17.14 of the Zoning Code of the Town of Avon. The proposed revisions would be
implemented by repeal and reenactment of Chapter 17.14 in its entirety. Town Council initiated
the amendments on January 13, 2009. A public hearing is scheduled to be conducted by the
Avon Planning and Zoning Commission for February 3, 2009. A public hearing is scheduled to
be conducted by the Avon Town Council on February 10, 2009. The Vested Property Rights
regulations implement the Vested Property Rights ( "VPR ") statutes set forth in Colorado
Revised Statutes §24 -68 -101 et.seq.
Overview of Vested Rights Regulation Revisions: The revisions to the Vested Rights
regulations present three major changes, including (1) elimination of the current five year
maximum duration for vested rights, (2) establishment of guidelines for consideration of vested
rights in excess of three years, and (3) establishment of specific procedures for declaring
forfeiture of vested rights. Other revisions include fine tuning the regulations to implement and
comply with the VPR statutes and coordinate with existing processes in the Avon Municipal
Code.
Proposed Language Changes:
Definition of Site Specific Development Plan: The VPR statutes require a local government to
provide a minimum vested property right for three years upon approval of a "site specific
development plan ". The VPR statutes specifically authorize a local government to determine
what constitutes a "site specific development plan ". The Town currently defines "site specific
development plan" to mean only a Planned Unit Development application. This definition is
proposed to be revised slightly to include any other development approval in which the Town
Council desires to provide a vested right, but clarifies that any other development approval
requesting a vested right is not subject to C.R.S. §24 -68- 102.5(1). C.R.S. §24 -68- 102.5(1)
states that a development application must be reviewed according to the regulations in place at
the time of submitting the application. The proposed language would include only planned unit
development applications under this rule.
Widner Michow & Cox LLP Eric Heil, Esq., A.I.C.P.
13133 East Arapahoe Road, Suite 100 Direct Tel 303.754.3392
Centennial, CO 80112 eheil @wmcattorneys.com
Ability to Adopt General Regulations: Sections 17.14.030(b) and (c) further specifies the
definition of rules and regulations of a general nature that are exempt from vested rights to
include subdivision improvements, right -of -way dedications, specifications for public
infrastructure and public facilities, and fees that are general in character.
Notice of Approval: The requirements for notice of approval in Section 17.14.050 have been
revised to track the VPR statutory requirements more closely as well as add a specific
requirement to provide notice that the ordinance granting a vested right is subject to
referendum. The notice requirement also states that the Town shall provide the notice rather
than the applicant to avoid ambiguities over the legal status if the notice is provided later than
fourteen days.
Duration of Vested Rights: 17.14.060(b) sets forth guidelines for approval of a vested right
greater than three years which would apply to all new vested rights and amendments to existing
development approvals with vested rights. The term "guideline" is used because granting a
vested property right for greater than three years is a legislative act and strict compliance with
the guidelines is not a requirement. The first three guidelines in 17.14.060(b) track
considerations in the VPR statutes. Guidelines (4) through (9) set forth considerations that the
Council has expressed are important. Note that guideline (8) refers to consideration of vested
rights in existing agreements. Guideline (10) clarifies that the Council's discretion may include
consideration of any factor deemed relevant.
Extension of Vested Rights: 17.14.070 sets forth procedures specifically for consideration of
extension of vested rights.
Forfeiture of Vested Rights: 17.14.080 does not change the reasons for determining the
forfeiture of a vested right (failure to abide by terms and conditions), but adds procedures to
insure that property rights are not denied without due process of law. The VPR Statutes are
silent on the process for declaring vested rights forfeited. Vested property rights create a
"property right ". Property rights cannot be taken away without due process; therefore, notice
and a hearing must be provided.
Process for Adoption: The repeal and reenact of the Vested Property Rights regulations
occurs through a formal application for text amendment to the Zoning Code of the Town of Avon
which can be initiated by the Town Council, Avon Municipal Code sec. 17.28.020. First reading
by the Town Council of an ordinance adopting the revised vested rights regulations is scheduled
for January 27, 2009. A public hearing is scheduled for the Avon Planning and Zoning
Commission on February 3, 2009. A public hearing and second and final reading of an
ordinance adopting the revised vested rights statutes is scheduled for the Town Council on
February 10.
Requested Action: Town Council approval of Ordinance No. 2009 -2 on first reading is
requested.
Widner Michow & Cox LLP Eric Heil, Esq., A.I.C.P.
13133 East Arapahoe Road, Suite 100 Direct Tel 303.754.3392
Centennial, CO 80112 eheil @wmcattorneys.com
TOWN OF A, VON'
COMRMSMON
RIESOLUJLIOH NO. 9-03 C 0 L 0 R A D 0
A RESOLUTION RECOMMENDING APPROVAL OF ORDINANCE NO. 09 -02 —
VESTED PROPERTY RIGHTS, REPEALING CHAPTER 17.14 AND ENACTING A
NEW CHAPTER 17.14 OF THE AVON MUNICIPAL CODE
WHEREAS, the Avon Planning and Zoning Commission conducted a public hearing on
February 3`d, 2009, after posting notice in accordance with Section 17.12.100 of the
Avon Municipal Code; and,
WHEREAS, the Avon Planning and Zoning Commission finds that the repeal and
reenactment of Chapter 17.14 Vested Property Rights will improve the Town's
administration, processing and review of vested property rights; and,
WHEREAS, the Avon Planning and Zoning Commission finds that the passage of
Ordinance 09 -02, as attached hereto as Exhibit A, will promote and preserve the health,
safety and welfare of the Avon Community;
NOW, THEREFORE, BE IT RESOLVED, that the Planning and Zoning Commission of
the Town of Avon hereby recommends approval to the Avon Town Council of Ordinance
09 -02 — Vested Property Rights subject to the following Condition:
1. The Council and Town Staff shall incorporate language to Section
17.14.030(c) clarifying the intent and adding specificity with regard
to ordinances of general applicability.
ADOPTED THIS 3rd DAY OF FEBRUARY, 2009
Signed:
Date:
Chris Evans, Chairperson
Attest:
F:\Planning & Zoning Commission\Resolutlons\20MRes 09 -03 Vested Rights.doc
Date:
Phil Struve, Secretary
FAPlanning & Zoning Commissionaesolutions120091Res 09 -03 Vested RiOts.doc