TC Res. No. 1984-05,boo
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FOR CORRECTION PURPOSES ONLY
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275231
RESOLUTION # 84-5 JOHNNETTE PHILLIPS
EAGLE CTY. RECORDER
SERIES OF 1984
'cg 11 2 56 PH '84
WHEREAS, the original developer of the Benchmark at Beaver Creek
Subdivision ("Benchmark Subdivision") was granted approval as a Planned _ N
Unit Development (P.U.D.) in 1974 by the County of Eagle, Colorado; and
V.
WHEREAS, said original developer, in order to insure that said V
Benchmark Subdivision would be developed in accordance with its Master Plan _
and to insure the quality and character of said Subdivision, did by way of
deed impose certain private use restrictions on certain commercial lots t N
within said Benchmark Subdivision; and
WHEREAS, the above mentioned private use restrictions were
imposed by the original developer to provide for the sound planning and
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development of said Benchmark Subdivision; and
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WHEREAS, at the time the Town of Avon was incorporated, in August
of 1978, the Benchmark at Beaver Creek Subdivision was included in said
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incorporation and thereafter became subject to said Town's zoning
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regulations; and
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WHEREAS, due to the growth and the changing needs of the Town of
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Avon said private use restrictions no longer serve a useful purpose and
are, in fact, counterproductive and prohibit the viable economic growth and
progress of said Town; and
WHEREAS, many commercial landowners affected by said restrictions
(including the original developer) are desirous of eliminating said private
use restrictions by agreeing among themselves not to enforce said private
use restrictions against each other; thereby eliminating any legal impact
of said private use restrictions; and
WHEREAS, said affected commercial landowners are aware that the
Town of Avon has no legal authority or jurisdiction with respect to
eliminating said private use restrictions, but said affected commercial
landowners believe that strong support from the Town for the elmination of
said use restrictions, and an agreement among all affected landowners not
to invoke the private use restrictions, would be a positive and beneficial
step in advancing the orderly progress and growth of the Town; and
WHEREAS, after close review and discussion of the above-described
matter and because the Town has expended a great deal of time and money in
developing its Master Plan, the elimination of the private use restrictions
would be in the best interests of the community as said private use
restrictions are no longer relevant and land uses can be controlled by the
Town's Zoning Code through the Planning and Zoning Commission and the Town
Council;
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of
Avon, Colorado, as follows:
1. That without assuming any liability and recognizing that the
Town has no legal authority or jurisdiction, the Town recommends, supports
and urges that all affected commercial landowners enter into an agreement
not to invoke or enforce those certain private use restrictions as more
fully described on Exhibit A attached hereto and incorporated herein by
this reference; and further, that such an agreement among all affected
commercial landowners would appear to be a positive and beneficial step in
advancing the orderly progress and growth of the Town in accordance with
and in furtherance of its Master Plan.
2. That the elimination of said private use restrictions would
appear to provide the Town with more flexibility to implement its Master
Plan and to achieve the goals and benefits to the Town of its Master Plan.
3. That this resolution supporting the elimination of those
certain use restrictions, as described in the attached Exhibit A, is not
intended to in any way effect the RESTATEMENT OF AND FIFTH AMENDMENT TO
DECLARATION OF PROTECTIVE COVENANTS FOR BENCHMARK AT BEAVER CREEK
SUBDIVISION as recorded in Book 337 at Page 366 in the County of Eagle,
State of Colorado.
4. That the Town has expended a great deal of time and money in
developing its Master Plan and would, therefore, rather see the matters
contemplated by the subject private use restrictions be determined through
the Town's master planning and zoning process.
1,984-.
ADOPTED at a regular meeting the 14th day of February
eADavii, Mayor Pro Tem
-2-
EXHIBIT A
PRIVATE USE RESTRICTIONS IMPOSED ON CERTAIN COMMERCIAL LOTS WITHIN THE
BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, COLORADO.-
a. A grocery store,- whether 'independen't or chain operated, but
not including other stores which may offer on an ancillary basis certain'
selected items for sale which may also-be sold by'an independent or-chain
operated grocery store.
b. A gasoline sales•or service station.
c. Medical/dental clinic offices, but'--not -including individual
medical or dental offices which•may be established within structures not
established. primarily for the purposes of containing medical/dental
offices.
d. A bank:
e. A savings and loan institution.-
f.. Any automotive industry related sales or.-service business',
such as a new'or used car dealership, a junk yard, an auto' repair shop, a
new or used auto parts sales store or warehouse, or car wash'.
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02/ 2 1i84
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February 8, 1984
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The Honorable Town Council
Town of Avon
P. 0. Bog 975
Avon, Colorado 81620
Re: Private Land Use Restrictions on Certain Commercial Lots within the
Town of Avon.
Dear Council Members:
When the Benchmark at Beaver Creek Subdivision obtained its original
approval as a Planned Unit Development (P.U.D.) from Eagle County in 1974,
(including certain amendments to the Planned Unit Development prior to this
subdivision being included in the incorporation of the Town of Avon in
1978) we believed that certain private land use restrictions were necessary
in order to insure that development of our Master Plan would be generally
carried out. In other words, we did not want to see automotive related
type businesses being developed in the heart of our subdivision, except for
full-service gasoline sales and service stations on certain lots. Also, at
that time Vail had only one bank and we assumed Avon would have only one
bank. Therefore, we decided that private use restrictions would be one way
to insure that a banking facility would be developed on Lot 70, as per our
Master Plan, which placed the bank in the best location for parking,
traffic and customer convenience. These private use restrictions were
intended to allow the development of appropriate businesses on the
. commercial lots within the Subdivision and were not intended to be
protective of those businesses. In other words, we had no intention of
creating business monopolies.
Since the Benchmark at Beaver Creek Subdivision is a part of the
Town of Avon and since the appropriate land uses can be controlled by the
Town's Zoning Code through the Town's related governing bodies (i.e. the
Planning and Zoning Commission and the Town Council) we believe there is no
longer any need for these private use restrictions and, in fact, that they
are negative in terms of the Town's future growth.
We understand the Town is being approached by certain business people
seeking the Town's support and assistance in their effort to eliminate
these private use restrictions. In this regard, please be advised that
Benchmark has no objection and will consent to the elimination of said
private use restrictions to the extent that it has authority to do so.
Please understand, however, that we cannot speak for the other land owners
within the Benchmark at Beaver Creek Subdivision; therefore, to be
absolutely certain of the elimination of said private use restrictions, all
of the commercial lot owners in the core area should agree to the
elimination and/or agree that they will not attempt to'enforce said private
use restrictions. BENChMARk
Box 5070. Avon, Colorado 81620 Phone C3031949-5743
0 0
Honorable Town Council
Town of Avon
Page Two
For illustrative purposes, I am enclosing herewith several copies of a
10 map of the commercial area which reflects lots that are purportedly
restricted against use as a bank or savings and loan. This map also shows
those lots which are not restricted against use for a bank or savings and
loan and should help demonstrate that there is no longer any need for these
private use restrictions and, in fact, that they are counterproductive in
that there is really no good reason why a bank or savings and loan
institution should not be able to locate on any of the lots that are
restricted against said use. Again, although we understand that the Town
does not have the legal authority to eliminate said private use
restrictions, we urge the Town to support the efforts of the various
business people in the Town who are attempting to eliminate said private
use restrictions.
Very truly yours,
AJW/sjd
Benchmark at Beaver Creek, a limited
partnership by Benchmark Company, a
partnership and sole general partner
By: ( X~k% j \'4
A. J. Wells, At orney-in-Fact
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Enclosures
cc: Planning and Zoning Commission
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February 8, 1984
The Honorable Town Council
10 Town of Avon
P. 0. Box 975
Avon, Colorado 81620
Re: Private Land Use Restrictions on Commercial Lots in the Town of Avon.
Dear Council Members:
I am part owner of Lot 56, Block 2, a commercial lot in the Benchmark
at Beaver Creek Subdivision in the Town of Avon. In this regard, it has
recently come to my attention that there is an attempt to eliminate the
private use restrictions placed on another commercial lot in the-Town of
Avon. In this regard, I support eliminating all private land use
restrictions since they are counterproductive in today's economy and no-
longer serve any useful purpose.
I have been a land owner in Avon for several years and have found over
that period of time that the private use restrictions placed on commercial
lots within the Town of Avon have basically created problems for the
orderly and logical development and progress of the Town. Over the years I
have had the occasion to discuss the problem with the original developer
and fellow landowners in the Town. As we all know, Avon as a planned
community dates back to 1974 but our community needs have changed
considerably since the original developer conceived and planned the .
Benchmark at Beaver Creek Subdivision. It appears to me, and virtually
everyone I talk to, that the private use restrictions, in one form or
another, that were placed on commercial lots in the Benchmark at Beaver
Creek Subdivision are no longer relevant and do not serve any positive
purpose and in fact are counter productive.
A few of the landowners in the Town, including the original developer,
have joined together with the idea of seeking an expedious and inexpensive
way to eliminate the private use restrictions or at least the effect of
these private use restrictions. In order to avoid costly and
time-consumming legal mechanics, we believe all of the commercial lot
owners in the Benchmark at Beaver Creek Subdivision should agree amongst
themselves not to enforce the private use restrictions against each other
and this will effectively eliminate any legal impact of these private
restrictions. In this regard and on behalf of similarly interested and
affected landowners in the Benchmark at Beaver Creek Subdivision, I would
like to appear before the Town Council at its work session and public
meeting scheduled for Tuesday,,February 14,-1984 to request that the Town
approve a resolution urging and support'ing'-the elimination of the use
restrictions. We realize the Town does not.have any legal authority,or
jurisdiction with respect-to these.use_restrictiotis-since they are private
covenants; however, we'believe strong support from the Town for the
elimination of the'use restrictions"and an agreement among all affected
landowners not to invoke the private use restrictions would be a very
positive and beneficial step in advancing the orderly progress and growth
of the Town.
0-
The Honorable Town' Coun 'il .
Town of Avon
Page Two }
We are not requesting the elimination of the general protective
covenants for the Benchmark at Beaver Creek Subdivision. The use
restrictions we are referring to are those that deal with the use or
non-use of certain commercial lots for a grocery store, whether independent
or chain operated . . . ; a gasoline sales or service station;
medical/ dental clinic offices . . . ; a bank; a savings and loan
institution; any automotive industry related sales or service business,
such as a new or used car dealership, a junk yard, an auto repair shop, a
new or used auto parts sales store or warehouse, or car wash.
Almost all of these private use restrictions were imposed by the
original developer on deeds to certain lots for the purpose of adding more
control over land use for planning purposes, as per -the original. Planned
Unit Development (P.U.D.) originally approved by Eagle County and
susequently adopted in substantially the same form by the Town of Avon. In
other words, lots in the Town core should not be used for new or used car
dealerships, as one example, but the final authority relating to such a
'use, or any other use, can now be placed totally in the hands of the Town
Planning and Zoning Commission and Council.
We all realize that Avon needs additional sound commercial development
if it is to thrive and grow for the benefit of all of its residents,
business people and visitors. At the risk of stating the obvious, such
growth is also essential to the survival and betterment of the Town.
Thank you for your consideration of this request and we look forward
to meeting with you in the very near future.
Sincerely,
avid L. Cole
cc: Benchmark at Beaver Creek
Planning and Zoning Commission
of the Town of Avon