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TC Minutes 04-12-1994MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL HELD APRIL 12, 1994 - 7:30 P.M. The regular meeting of the Avon Town Council of the Town of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Albert J. Reynolds at 7:30PM. A roll call was taken with Councilors Jack Fawcett, John Hazard, Tom Hines, Celeste C. Nottingham, Jim Roof and Judy Yoder present. Also present were Town Manager Bill James, Town Attorney John Dunn, Planner Mary Holden, Superintendent of Recreation Meryl Jacobs, Director of Municipal Services Larry Brooks, Fire Chief Charlie Moore, Transportation Director Harry Taylor, Police Chief Art Dalton, Assistance Police Chief Gary Thomas, Town Clerk Patty Neyhart, as well as members of the press and public. First item on the Agenda under Citizen Input was the selection.of the new Planning and Zoning Commissioners. Ballots were distributed to Councilmembe'rs and collected by Town Clerk Patty Neyhart. The Town Clerk tallied the votes and Assistant Police Chief Gary Thomas verified the tally. Mayor Reynolds announced that the newly appointed Planning and Zoning Commissioners were Suzanne Railton, Bill Sargis;'and Rhoda Schneiderman. Second item on the Agenda under Citizen Input was Jay Hawkins representing Eaglebend Phase III. Mr. Jeff Spanel updated Council on Eaglebend Phase III, affordable housing. Mr. Jay Hawkins has completed a preliminary site plan. Mr. Spanel reminded that on Phases I and II there was a waiver of fees for building permits and is requesting that waiver for Phase III. Mr. Hawkins stated this is an informal presentation of the site plan and offers general use of the property. This is across the river, along Highway 6 from the existing Eaglebend. This is a very narrow site and is across from the proposed Boulders development. The 30' set back has been maintained. Parking may be of a concern and parking lot set backs may be reviewed and a variance requested. The current sketch is for 59 units with the proper amount of parking spaces. Mr. Spanel stated this will be for one, two, and three bedroom units. One unit may be lost due to necessary social spaces, such as a laundry. The existing child care facility will be incorporated into this Phase III. Currently, the rents for these units will parallel what is across the River. Square footage is similar to Phase I and II. Play areas are between the buildings and along the river front. Parking may be a 'concern with the current parking lot infringing on the set back. Some units have parking under the building; at least 14-16 of the residents will have covered parking. Mr. Spanel again requested the fees to be waived. This project would be through the non-profit corporation. Council's consensus was, to discuss this further. Mr. Spanel asked if Council is still in support of doing a third phase Eaglebend. Mayor Reynolds felt it was great and commented that we could certainly use affordable housing. Third item on the Agenda under Citizen Input was Pat Casey requesting a contribution for Project Graduation- Battle Mountain High School. Ms. Casey was delayed and Mayor Reynolds stated he will postpone this until later in the meeting. Added to the Agenda under Citizen Input was Tom Britz of Vertical Marketing to discuss Bobfest. Mr. Tom Britz requested Council to lift the moratorium set on the tent restriction. Mr. Britz'ask the Council to set up the tent for Bobfest due to Bobfest being such a highly publicized media event. Mr. Larry Brooks informed it takes 48 labor hours to erect the tent and 2-3 to take it down. Mr. Britz reminded that last year the Town provided the-tent as in-kind services, in addition to the $10,000. Mr. Britz informed the overall budget for Bobfest is $16,000. In-kind services also included Police at approximately $600. Councilor Yoder motioned to give them the tent. Councilor Roof seconded the motion and the motion carried unanimously. Council's consensus was to consider each request for the tent on a case by case basis. Second Reading of Ordinance No. 94-11, Series of 1994, AN ORDINANCE PROVIDING FOR THE APPROVAL OF A REZONING 619.75 ACRES OF LAND CURRENTLY ZONED OPEN SPACE, LANDSCAPING AND DRAINAGE, TO PLANNED UNIT DEVELOPMENT AND AMEND THE MOUNTAIN STAR PLANNED UNIT DEVELOPMENT TO INCLUDE THIS PROPERTY Planner Mary Holden stated this is a second hearing with no changes since first reading. This will include six residential lots, a ,new location for ranch central, and 567.3 acres of open space. This PUD does comply with criteria that has been set forth in the staff report. Staff recommendation is for Council to approve the rezoning with the following findings and conditions; Findings: 1.) The rezoning is justified due to the changing character of the area. 2.) The rezoning is consistent with the Town of Avon Comprehensive Plan. 3.) The proposed use is compatible and complimentary to the surrounding area and uses. Conditions: 1.) The amendment to the Mountain Star PUD will be incorporated into the existing Mountain Star PUD. Subdivision of this land will be identified as Mountain Star Filing Number 2. 2.) The PUD Plan and PUD Guidelines and standards (including allowed uses, site access and development standards) and the planned unit development amendment and preliminary plat filing No. 2,-dated January 14, 1994 be incorporated into and binding upon the PUD zone district designation for this parcel of land. 3,.) The property be annexed into the Avon Metropolitan Water District. 4.) Access'to the proposed equestrian area must be shown on the PUD Plan. 5.) Public trails and related parking areas must be shown on the PUD plan. Ms. Holden clarified that Condition No. 2 was revised to include the underlined wording above. Councilor Fawcett motioned approval Ordinance No. 94-11, Series of 1994 on second reading. Councilor Hazard seconded the motion. The motion carried unanimously. 2 9 0 Town Attorney John Dunn interjected that this is a public hearing. Mayor Reynolds acknowledged the public hearing and hearing no one, Mayor Reynolds proceeded with the Agenda. First Reading of Ordinance No. 94-12, Series of 1994, AN ORDINANCE PROVIDING FOR THE RE-ESTABLISHMENT OF A PLANNED UNIT DEVELOPMENT PLAN AND DEVELOPMENT STANDARDS FOR LOT 3, NOTTINGHAM STATION SUBDIVISION, TOWN OF AVON, EAGLE COUNTY,, COLORADO Mr. Bill James stated this is first reading of Ordinance No. 94- 12. This has gone through the Planning & Zoning Commission (P & Z). And, P & Z has made a recommendation to'Council. Mr. James suggested, after receiving information tonight, to take a tour of the property. A public hearing will then be held at the next Council meeting of April 26th. After the public hearing, Council will have thirty days to make a decision and issue their findings and conditions. Mr. James noted the importance of this as this does carry some controversy with it. Attorney Dunn added that this is part of the judicial process. This is an ordinance which would rezone a,certain,property. The matter will be before Council, at the next meeting, for public hearing. Once the Council makes a decision, a person who is not happy with that decision may appeal it,to the district court. If an appeal should be taken.to district court, that is an appeal on the record. There is no more"testimony in court, all the judge does, in review of a decision like this, is to read the record, the transcript of the hearing before the Council, look at the documents presented, etc. This becomes very important; that the hearing in fact be limited to the second reading of the Ordinance, so that all of the information that is the basis of Council's decision is presented in the course of that public hearing, and should there be an appeal, then that could be delivered to the court. What is appropriate at first reading is presentation of the staff, so that staff explains what the issues are so that you prepare yourselves for the hearing in two weeks and also to look at the property in between,. Beyond that, unless there are special circumstances, it should be limited to the staff report. Ms. Holden stated this is a first reading for the reestablishment of the PUD development plan and standards. Ms. Holden informed the Boulders does have PUD zoning in place. This is an application to establish the development plan and the development standards. The development plan deals with committed uses, density, circulation, access, phasing, surfaces, and utilities. The standards are the,guidelines that get specific on maximum density, set backs, parking, maximum height, etc. This is for 150 residential units. There will be 3 1/2 acres dedicated to the Town, along the Eagle River, along, with the 50' Hurd right of way dedication to the Town. P & Z has reviewed this application four times; January,4, 1994 as conceptual, March 1, 1994 the first public hearing, March 8, 1994 was a worksession, and on March 15, 1994 the second public hearing. The main issues identified by P & Z were density, the Eagle River corridor and the riparian environment and wetlands, the Hurd Lane connection to the Eaglebend PUD, the traffic impacts, the views into the site and the visibility of the site, and landscaping both existing and what was being proposed. Staff concludes this meets the criteria for the PUD zoning and the development plan and recommends approval" with the following findings and conditions; Findings are: 1.) The PUD is consistent with the development patterns and locations set forth in the Town of Avon Comprehensive Plan, 2.) The PUD is consistent with the Comprehensive Plan goals and objectives related to land use and proximity to the town core, 3.) The PUD is consistent with the Comprehensive Plan goals and objectives related to the environment, 3 4.) The PUD is consistent with the Comprehensive Plan goals and objectives related'to'access-to the Eagle River corridor and open space dedication-along the Eagle River corridor, 5.) The PUD is consistent with the Comprehensive Plan goals and objectives related to sensitivity to the natural riparian environment along the Eagle River corridor, 6:) The PUD is" consistent with the Comprehensive Plan goals and objectives related to the construction of Hurd Lane as access serving the north bank of the River, 7.) The PUD is consistent with the Comprehensive Plan goals and objectives related to the Riverfront District (Subarea 10) related to visibility from Highway 6/24, public access to the River, buildings capitalizing on the River, setback from the River to preserve its natural character, limit building heights to three or four stories, and where possible, locate buildings and parking to preserve and promote the health of existing quality trees, 8.) The PUD is consistent with the Transportation Plan traffic generation forecast for this property, 9.) The PUD is consistent with the Transportation Plan goals and objectives related to providing a continuous two-lane connection along the Hurd Lane corridor, 10.) The PUD is consistent with the Transportation Plan goals and objectives related to pedestrian and transit improvements, 11.) The PUD is consistent with the Recreation.Plan goals and objectives related to location of off- street bike/pedestrian paths. Conditions are: 1.) The PUD Guidelines and Standards described in the report (including allowed uses, density, site access, and development standards) be incorporated into and binding upon the PUD zone district designation for the parcel, 2.) The Hurd Lane connection be completed.to public road standards through to Eaglebend Drive, by the applicants prior to the construction of Phase I, 3.) No site disturbance, including grading or structures be allowed within the 30' mean high water setback, 4.) A protective and erosion control fence be installed along the 30' setback from the mean annual high water/100 year flood mark prior to and during all phases of construction, 5.) A soft surface pedestrian trail/pathway, consistent with the Town's Recreation Plan, be shown on the PUD Plan along the Eagle River. This trail shall also connect to Hurd Lane west of Building I. The developer shall construct this pathway during Phase I, 6.) The front yard setback along Hurd Lane be in compliance with the Town's normal standards of 25 feet, 7.) The distance between the buildings be a minimum of 20 feet, consistent with Town standards, 8.) The setback from the river preserve and respect the riparian character and vegetation. As final comment to these conditions, Staff has suggested changes to conditions 5, 7, and 8. Suggested changes are as follows; Condition 5 would read that a hard surface trail/pathway be required consistent with the Town of Avon's Recreation Plan; Condition 7 would read the distance between the buildings be a minimum of 15 feet, consistent with town side yard setback standards; and Condition 8 should be deleted due to the inconsistency with the Town's river setback requirement of 30' from the mean annual high water mark. And, further, .there is no definitive definition of a riparian character and vegetation. Councilor Fawcett confirmed the property already has a PUD; what we are asking for is a reestablishment of the PUD. Mr. James stated we approved the initial PUD, but that time has lapsed. So now the applicants are asking for that PUD to be reestablished with new development criteria. Each time a'PUD is approved it has a time frame of three years. And, if the property is not developed in the period of time, that approval lapses and council has to authorize reestablishment. Mr. James clarified it's not really lapsed; we are reestablishing the criteria for the new development. Councilor Yoder asked why staff changed the recommendation from 20' to 15' between the buildings. Ms. Holden stated side yard setbacks are 7 1/2 and 7 1/2; totalling 15' is consistent with what is found in the area and the Town's minimum standards. 4 Mr.'Norm Wood confirmed Ms. Holden's statement. Mr. Wood mentioned Wildridge, but this is difficult to transcribe as he was away from the microphone. Councilor Yoder commented P & Z is really not comfortable with the 151; they want 20'. Mr. James confirmed Councilor Yoder's comment. Councilor Hazard asked what P & Z's reasoning was to request 201. Ms. Holden believed it was partly due to,Wildridge having setbacks of 10' on each side, totalling 201. Ms. Rhoda Schneiderman, member of P & Z, stated P & Z felt, because of the overall density on the river corridor', as viewed from Highway 6,•it was basically one line.of buildings, with no real breaks. The buildings weren't staggered a lot. And, we felt that 15' between buildings was.just not adequate to give any feeling of space and to lessen the density. Referencing the 25' front yard setbacks from Hurd Lane, 'P & Z felt there were so many things that they were asking for a deviation in the norm, and that Road is going to be extremely busy, we felt that with pedestrians and bus traffic and car traffic, that the buildings being so close to the road were not going to give adequate snow storage as well as just room to move for all the pedestrians that were going to be there. In the winter time,,where are they going to put the snow; it is going to decrease that space. We are basically talking about a very narrow space to accommodate a lot of functions. Councilor Hines commented so the two issues behind that 25' setback were pedestrian traffic and snow storage. Ms. Schneiderman agreed and added just traffic in general; the fact that I think. this project is going to_have a lot of children in it, being family oriented. We felt there is no reason why they shouldn't be held to Town standards. With regard to the 10' side setback, Ms. Schneiderman stated P & Z received a lot of public input asking why they are allowed 10' setback and P & Z felt that because of the density on the river corridor we really should have more space between buildings; not only visually but to create some sort of corridor; it is supposed to be public access to the river. With the decks being that close together they were just going to end up being a couple feet apart; the actual overhangs on the decks. We just felt it was much too congested. I didn't have any problem with the density, as far as the number of units per acre, its just that I think because they chose to do it in a'low rise situation, every phase of it, it created very little open space. And, they have to maximize their building potential by putting the buildings very close together and lessening the setbacks. If they had put a fourth story on the rear buildings we could have alleviated all that. So, they chose the path and we felt it was just inappropriate for this particular development. Councilor Yoder- asked how many buildings in the development. Ms. Schneiderman stated 15. Councilor Yoder commented that P & Z is recommending they do a replat of this and have the 201. So, P & Z is not recommending this plat be accepted. Ms. Schneiderman stated the recommendation that P & Z made is that the PUD be accepted, with the conditions. Mr. Mark Donaldson, representing Southwest Partner's, introduced Bill Sargis, one of.the principals in the group. Mr. Donaldson asked for clarification on procedure. Mayor Reynolds stated the actual public hearing will be at the next meeting and will be the second reading of the Ordinance. Mr. Donaldson stated the PUD designation has survived as a zoning designation. We are here tonight to present a specific development plan that has the 'information that Ms. Holden presented regarding the items she has listed under the development plan as well as the PUD guidelines. We are being very specific with those proposals and we are here to discuss each and everyone of them for you tonight. 5 Mr. Donaldson continued, I have to take exception with one of Ms. Schneiderman's statements. She made the statement that there has been so many deviations from the norm in our proposal. And, to the contrary, we are offering many exceptional advantages to the Town of Avon in terms of a development plan; this density, this type of development'. When the 30' stream setback was established in the Comprehensive Plan it was done with full knowledge. At the time of development of those standards, the Avon Station and the Nottingham Stations parcels were very clearly understood in terms of their development or capabilities and most importantly, the limitations thereof. They are both long and narrow sites. They are both going to have major circulation patterns through them to be able to serve their sites, as well as adjacent lots. They both have very significant impacts by the river, flood plain, vegetation, so forth. And, they have to be compatible with the rest of the community. With all of those things in mind, we believe that the 30' setback from the river is a very adequate setback. Even so, we are proposing that our minimum setback from this river is nearly 40' for about 5016 of our length, which is about 1,500' along the Eagle River corridor. The other 50% ranges from 40' to 85' of setback. And, so one of the goals that we have, in our proposal before you, is to eliminate the obstacles to our being able to develop this amount of density in a reasonable and logical fashion. We intentionally selected low rise buildings, residential in nature, and character of the architecture materials, the style, the roof form, the massing, the roofing, the variations of the buildings, so forth. When we go to a fourth story, we go to steel and concrete construction. And, when we do that, we go up in the market place, we go up in all kinds of cost, we7become more high rise on the river and we sincerely feel that that is not appropriate. We have developed a plan, that we feel, the entire staff is very supportive of. We have a very simple road configuration from the east to the west end. We have two intersections on our own site that are cross intersections, that allows you to access each of our building areas. On the north side, in what we are calling a replatting of Lot 3, that is our affordable housing component of this type of housing. We are offering a very wide variety and mix of housing types from studios, ones, two, and threes with a variety of square footage ranging from 400+ to about 2,100 square feet. The idea of proposing affordable housing on the north side of the extension of Hurd Lane is two fold. One is to create a type of density that will allow proper housing that has access to the community core; and we are concealing the parking. Secondly, and most importantly for the balance of our development, this is part of our noise and visual mitigation between the railroad track and our long and narrow site. As I mentioned, we have a railroad on the north, the river on the south, we have a long and narrow site, and we are going to dedicate a 50' wide continuous right of way through the middle of our site. After we dedicate the 3 1/2 acres along the river frontage, our open space on the plan is still 47t. The deviations, if you will, that we are requesting from the norm are simply the Hurd Lane setbacks. And, we are requesting 10' from the property line to our nearest building area. And, that is not out of the norm in terms of other existing development in this Town. There are many buildings through out Town; Benchmark Plaza Building, Christie Lodge, The Seasons that range from any where from 0 to 10' setback off of city streets. In many cases, we know that the asphalt was not built in the center of the right of way, and it even impacts it in a greater way. We have good support from the Town staff, from public works to engineering, etc, that has agreed that our proposal for this 50' right of way of dedicating the right of way, building the road to Town standards, all the street furniture, the"sidewalks, the lighting, benches, trash receptacles, including a bus stop, the bus shelter, the pull off lane, and everything at our developers expense. 6 0 • We have left room in the proposal'for•snow storage, pedestrian ways, green space in between the back up'curve and the sidewalk and green space between the sidewalk which is common to our property line, and then our own building. That is the one issue we are asking for leniency of. And, of our developable property, after the dedication of 3 1/2 acres along the river frontage, we average just under 17 units per acre. For reference, residential median zone district allows 15 units per acre, high density is 20 units per acre, so we'are right in the middle, we-aren't pushing anything. We have lowered the density if you segregate the sites by development sites. Our river side sites are just under 12 units per acre for all of our townhomes. We do not desire to build high rises or steel and concrete structures; we desire to build more mountain oriented and river frontage architecture. This is a plan that is very well developed and is very much like what we would like to take to construction. So, ordinarily, you probably wouldn't see a plan this well developed graphically and architecturally for a simple zone district designation. But, we feel this strongly and we have committed this much effort to developing this plan to show more about what we want to do; we believe in the plan and would like to eliminate a couple of.the obstacles we have, as we perceive them, in the P & Z recommendations. Mr. Donaldson believed his letter of April 8th outlined proposed changes to those that would allow development in a responsible way. We are offering, as mentioned, the 3 1/2 acre dedication of the river front property for control and exclusive management by the Town of Avon. We are proposing the continuance of the Hurd Lane improvements, including all the street standards; curb and gutter, asphalt, street furniture, etc. On the Hurd Lane issue, I would like to comment, later on in your hearings you will likely hear from the gentleman from Eaglebend Partnership. We have had on-going discussions with them. There is an issue about the 10' access to the east of our property. We are here tonight to tell you we will work with them, we will pay our fair share, and we will contribute the amount of impact that our development proposes in relation or in a pro-rata format to the other properties that will be beneficiaries to the completion of Hurd Lane. There has been much discussion about whether or not Hurd Lane should go through as a public street. In some of our hearings with P & Z, they struggled with, well, should it be a private street, should it be a complete city street thoroughfare. There were concerns about the traffic going either way. We are here to commit to completion of your Transportation Plan, as it is put forth, which includes issues set forth in your Comprehensive Plan, which allows for the bus service to be more continuous, more efficient and more logical in its circulation patterns around Town and will eventually loop correctly. We think that is an important feature. As far as deviations from the norm, I don't know of any. We have extremely high percentages of open space. A normal open space in a commercial or high density district is 20t-25% of open space. We are proposing 35% open space; without asphalt, without buildings. We are not Mountain Star, we do not have a section of land to deal with. But in a development, like this, near the Town core, which from everything we can glean from all of your documents; the Comprehensive Plan, the Design Guidelines, Title 17 Zoning, and the Transportation Plan, this site deserves this amount of density. And, while a lot of comments have been made about the density is OK, there are certain restrictions that we feel are being requested of us that prevent us from building the quality and nature of the density that we feel is appropriate for this site. About 40% of our parking is covered. As you can tell, on the north side of the condominiums, all of the parking is either underneath the buildings or behind the buildings. . We have behind that part,of the site the railroad tracks, the back of the Christie Sports Building, Wal-Mart,'and City'Market. We are obviously focusing the other way; we feel that is a reasonable mitigation pattern of our structure. 7 0 0 Mr. Donaldson continued that the site coverage is another enormous planning tool; a yard stick by which to judge development standards. In most of your zone districts in Title 17 you allow up to 50k coverage on a site by buildings. We are cutting that in half. We are restricting ourselves to 25% of building coverage on site. I think at this time I would like to turn it back over to Council and be available for questions. Mayor Reynolds asked if Mr. Donaldson has any provisions for public access to the river. Mr. Donaldson stated yes sir. We have intentionally configured our riverfront dedication so that it abuts the existing Tracts A & B, which are open space parcels presently owned by the Town of Avon. So, we have intentionally brought our dedication line around, carefully retaining a small area for project identification signage in a landscape setting. Everything else there, in working with your staff, what we have come up with is that on the south side of Hurd Lane between our property and Avon Road there is room for along the street parking; we are going to build the access way down to the river frontage. The type of foot path being proposed along the river frontage; we are willing to build that. We think it is wrong and are open to suggestions. The P & Z, after negotiating and discussing with us at great length; we all come to the conclusion that a soft scape type path would be the appropriate method there. But, because of the terrain change, the change in water elevation seasonally and so forth, and most particularly the difficult terrain as you get to the eastern end as far as accessing back up to Hurd Lane and making a continuous link, it is very very difficult. If you walk that site you will see the mature cottonwoods on the east end, you'll see the steep terrain that we are staying out of and so forth. It is really difficult to imagine how a continuous path would be built. Councilor Hazard-asked it there was any space for a playground. Mr. Donaldson stated there are a couple of small areas; three areas. Like I said, we have 47!s open space. Councilor Hines stated it is in the recreation master plan and it is specked out as a hard trail system, conceptually. I remember when we went through all that, we did understand the impacts of either end of that property. But, the concept behind that was at some point in time we would have a hard trail system that would connect all the way through Avon. I still think that is the intent of the recreation plan. I haven't seen movement.'from Council saying 'we wish to deviate from that at this stage of the game. Both P & Z and Staff recommend putting in that trail system; one says soft and one says hard. Mr. Donaldson stated we are simple making's statement that we don't see how it can be done. We are willing to pay for it, once. But, when the river takes it away, ,I don't know. I think a site visit is a very good idea. The terrain is just very difficult. I-don't know how the machinery would get in'there to construct it. One of the very key issues that we have all agreed to is that we are going to build a continuous erosion control and construction control fence, which I envision as being a continuous roll of hay bales for sedimentation collection, construction fencing, etc. so that there is no disturbance. And, that is very clear in P & Z's recommendations. No disturbance beyond this particular line. And, that line runs along in front of all of our townhome buildings. That is the first thing that will be built on the site, is the line across there. What contradicts that is then now go down in there and tear it up and build a trail. We are a little bit at odds with that requirement. We will build a soft scape, a hard scape. We originally started with the idea of the continuous linkage along Hurd Lane. That is why we are proposing sidewalks on both sides. We think the most logical solution for that particular segment is to keep them up on Hurd Lane. 8 We think that the park like setting along the river front, that can be developed eventually by the Town for,any type of recreation, open space usage, would better be served with a-more limited access along there. I just don't see where it is going to go. Councilor Hines stated this is all information for us and I do not want to make judgement. Initially hearing that there is already some concern over the Hurd Lane connection and in terms of traffic that may be generated, not only by your project but by Lots 1, 2, Eaglebend, you know once that is a thorough fare, then you have the same sort of issues that you already have existing with Route 6 as it stands and what a hazard that is to ride a bike down. That's just devil's advocate. Mr. Donaldson felt they are offering a higher quality solution than what exists on Highway 6, because we have a separate walking and bike path from the vehicular route. Councilor Hines stated but that is also your major pedestrian movement for your project and you would certainly be cramping yourself if you tried to accommodate both. You know, I think the hope behind doing the bike path was that we would have something in place that interconnected with Vail, eventually all the way down to the Canyon. By the way, they did build a path along side the river down there in some tight areas. The thing is that hopefully we are looking at generating an awful lot of two wheel traffic on that path. Mr. Donaldson stated that I think you want to build that path through there; you are going to be faced with the same issues that we have been faced with in our proposal and that is the destruction of trees along the river front. To summarize our position, we will build it. That is not a problem. Mr. Donaldson continued, the two deal killers in this are the set backs from Hurd Lane and the undefined setback from the Eagle River. We want a really clear definition of the Eagle River setback. And, to read from my letter of April 8th, to revised the language of condition No. 8; the developer shall be allowed to build within the proximity to the Eagle River as depicted in the PUD development plan dated March 15, 1994 with no further set backs required. The language from the P & Z's Resolution to you was very vague; it just said protect the Eagle River corridor. We had probably 15 hours of discussions with the P & Z and we thought we were well defined there and then after an executive session a few minutes before the vote there were some things that came out of that meeting that we had'not even discussed that night. And, so we just, I guess what I opened up with is that we have a very well thought out plan that we would like to pursue and in order to pursue that plan we need to know that we can build within these limits. Mr. Donaldson stated I do want to take another minute and define for you how this river side townhome alignment was finally arrived at. The first most restrictive condition is the 30' set back from the mean annual high water mark. Now, in the Town of Vail and in Eagle County and different areas area here, there are set backs from the center line of the river. This is from the edge of the water and it is the annual bath tub ring. Councilor Hines asked if you were to do it 50' from center of'-the river . . Mr. Donaldson stated it would be less. Councilor Hines commented it would have been an awful lot less and you would have to talk to the Corps of Engineers. Mr. Donaldson concurred. We have wetlands and flood plain studies performed by specialists in their fields. The first, as I said, was,the 301-from the mean from the annual high water mark. The second is the flood plain set back, which is a determination that has been made by our engineers in terms of doing cross sections of the river at different points, analyzing the flow rates, and how the water disburses itself along our topography. And,, the third was our response to a lot of significant public input and that is a significant stand of cottonwood trees on the east end of,our property. We previously had two townhome buildings on the.far east end. ' 9 9 i We have eliminated a nine or ten unit building to pull that river side building back to get out of probably 80 or so percent of those trees. There is still some loss of the trees on the north side of that stand, but very minimal. But, the proposal that we are requesting is a combination of the most restrictive of those three. There are areas where the flood plain and the 30' annual intertwine; one becomes more restrictive than the other then the other becomes more restrictive. That is what sets up the syncopation there for about half the length. Then as you get up towards the steeper topography and the more cottonwood trees we just set ourselves back more and more and more. So, we would like to define that line in a surveyors dimension or a meets and bounds or something. But, we would like to be able to build our balcony edges to that line. And, that would also be our no disturbance line. We would put up a protective fence and protect that area. But, everything we have done here is to design buildings, to integrate them into this river side corridor. If we had to set our buildings back completely up on the tabletop 'of this site, I would think that it would be about a 40 unit development and financially unfeasible. But, we are proposing to keep the scale and architecture and the density and open space in such a manner that is acceptable and is really compatible with the surrounding residential uses. Councilor Hines stated he wanted to ask a question on the one statement regarding Mr. Donaldson's letter of April 8th. Condition 7, the distance between exterior building walls shall be 201; does that mean there is encroachment by something else. Mr. Donaldson stated the roof overhangs and balcony overhangs, I believe the Staff reports said something about 2' from each side encroaching; what we are trying to do is stick to the language that is in your codes as far as set backs from building to building. We would like to stay at the 151, but we didn't want to take issue with too many conditions. We can deal with the 201, we would like to have the 151, but 20' is do-able. And, the walls in most of the areas are splayed somewhat, apart from one another, so the closest point would be 20' and they would splay about. Councilor Hines asked, then the encroachment of 2' with roof overhangs and your balconies . . . Mr. Donaldson said yes. Councilor Yoder requested staff's response to Mr. Donaldson's response to staff's conditions; did'you get a chance to.look at Mr. Donaldson's letter of April 8th where he has about five different ways of phrasing things. Mr. Wood stated that on item No. 6 on the 20' setback,,staff does not have an issue with that one. That is up to the applicant to convince"you that the site development plan deserves that; that is part of the purpose of the Pub and the variance-from that. Mr. Wood was away from the microphone making transcription unavailable regarding something about the 10' set back. There were too many people speaking and unable to transcribe. Mr. Wood stated No. 5, we believe that condition should stand as staff recommended; the bike path be installed with a hard surface. Mr. James stated we will take a look during our tour. We did not want to deviate from what our master plan called for. P & Z has had the opportunity to view the site and Council should have that opportunity to do the same. You may reach the same conclusion. Mr. Wood stated with item No. 2, we believe the condition, as recommended in-the P & Z actions, that Hurd Lane be complete thru. It would be consistent with our transportation plan. Again, this section is unavailable for transcription due to Mr. Wood away from the microphone and a train passing in the background. Mr. Donaldson stated we are trying to create a workable team that will make this access continuous. My client's position is that Eaglebend and Southwest Partners are not the only beneficiaries of this extension. It appears that what we need to work out is that we match their contribution. 10 • But, we need your assistance; in view of the formation of a taxing district or some special subdivision improvements agreement that allows us to share those costs with future developers as they come along to develop their properties. It is the only fair way that we can see. I don't know how those percentages would work out; if it is a matter of square footage of residential areas, square footage of commercial uses, impacts or anything like that. I think there has got to be a fair and equitable way for that to happen. We will pay our prorata share. Eaglebend has stepped up to bat and they paid $800,000 to build that bridge. Our project will benefit from that, but not 50t. And, if we can come to some kind of arrangement that our zoning is contingent upon making this contribution, letting the lane get opened up, let the thorough fare happen, our only request is that we be able to continue to assess people as they come along. There is a strong potential that Eaglebend lane will eventually go through yet to the other bridge to the east that will be more development sites picked up that will benefit that long continuous lane. There are two lots on the west end of our property, Lots 1 and 2, there are other small parcels; it is that simple; we are willing to pay our share. Mr. Wood continued, item No. 7 the distance between the exterior walls shall be 20' as they have agreed to. I believe that is probably from the 2' overhang; it is pretty consistent with staff recommendation of the 15' setback when you allow the overhang on the 201, or whether you have the 15' with no overhang. Sounds like it is very consistent. Ms. Holden stated Staff's recommendation is to delete item No. 8 and have them respect the 30' setback along the Eagle River or the 30' setback the annual mean high water mark. Mr. Wood stated No. 8 agrees with more than what staff has recommended. Too many speaking and too many away from microphones. Mr. Donaldson was explaining high water set backs. Mayor Reynolds asked how much wetlands are in there. Mr: Donaldson stated the wetlands and the 30' annual mark intertwine with one another. Mr. Donaldson stepped away from the microphone to discussed a displayed map. Mayor Reynolds stated there is a concern about saving some of those big trees. Mr. Donaldson understood that. Councilor Fawcett stated he still wanted further clarification on the discussions you have been having with the party that originally built the bridge and your fair share and how you intend to approach the Council if you do so in the future requesting obviously some form of forming a special district or whatever. Mr. Donaldson stated we are willing to pay our fair share. In rough numbers we think that between Eaglebend and our development, maybe that is a total of 8096 of the beneficiaries. Maybe I'm off 5% one way or the other. But, we are probably trying to shake out maybe $100,000 of costs that should be born by other people in the future. We don't have an issue as far as should this prorata share be paid to Mr. Klinestein; he made the investment, he was in a difficult position when he needed to develop; he paid the entire price himself and he is looking to us as the second generation developer that needs'the benefit from this bridge. We're here to pay our share. To write a check for $400,000 and to ignore the other beneficiaries doesn't seem equitable. We can put that in written form.or meet-with Council to come to some sort of an agreement as to how that would work. That was done in the past with Eaglebend and there is certain restrictions that were placed on the deed at that time that I think carry forward to what we are proposing now.-'I''think something along those lines would be workable. Councilor Fawcett stated I guess that is what I am getting at; exactly what you intend to approach Council with or the Town of Avon with, in terms of your joint recommendation; agreement that you and Eaglebend may have come to; what are you going to come forward to us with. Mr. Bill Sargis stated we can't really answer that yet. We understand that there is a $400,000 issue. 11 0 • We also recognize and fully understand that the Town, through an agreement, has lost the right of condemnation and imminent domain and what have you. So we are truly talking about a purchase scenario here. What I believe we are looking for is to be able to come out of Town Council, that we have our zoning subject to resolution of this issue since the Town wants the right of way through Eaglebend. There is a $400,000 issue. Discussions have been taking place for about three months now with Eaglebend. And, there are payment schedules to work out, what have you. Again, just to reiterate, I believe what Mr. Donaldson was saying that it is unfair we believe, as it would have been for Eaglebend to force them to pay for the entire bridge, so they look to us. We simply want the sort of right. The gentlemen that own Lots 1 and 2 will certainly benefit in the future. And, from what the Town did for Eaglebend,,to preserve those documents, to prevent the Town from any kind of legal procedure to annex or take that ground, we are simply asking for the same thing. But, we fully lntena to come to an agreement in wnatever norm the -1-own attorney would require or need and execute it. We are just looking for the right to be able to disburse the cost to future developers, no different than what Eaglebend has done to us. Councilor Fawcett stated than basically you folks have to come to some type of agreement which then the Town has to either ratify or amend or agree to, prior to any final action being taken on the PUD. Mr. Sargis stated what we would really like to have is approval of zoning, subject to such agreement, as opposed to deferring any kind of approval process. We fully intend to go ahead. We have known about this from day one. We have spent an enormous amount of time. We've had lots of conversations with the Eaglebend partnership group. We are prepared for an agreement and they are prepared. We just simply want to be able to structure an agreement that we assume would be fair for future developers. Councilor Hines commented he didn't realize we had lost imminent domain over there. Councilor Hines commented, where you're at, is that they are requesting you to pay $400,000 for that portion of land. Mr. Sargis stated correct. Councilor Hines questioned, you stated that you want to do it on a prorata basis and attach it back to Lots 1 and 2. Or, are we talking a combination of . Eaglebend, yourselves, Lots 1 and 2. Mr. Sargis stated in that entire subdivision area, Eaglebend benefits from that right-a-way and we would benefit, Southwest Partners. We proposed that there is still land available for future development. And, under- the same situation where Eaglebend has an agreement, I believe with the Town, and I don't mean to speak out of turn here, that protected their investment in the $800,000 bridge, which was realization that whoever else came in to develop that property would have to pay prorata share; in our case it was half. If we were the only developers there, then half would be fair and reasonable. We are simply saying, and I am not picking out any particular developer, any other land for sale or any other potential development that goes on, I believe should have the same sort of restrictions or requirements of fairness attached to it. Mr. James thought our Town Council should review. Mr. Bruce Stocks, an attorney representing the Eaglebend Partnership, stated Eaglebend supports the project, but we are concerned about working out this access issue and are committed to doing our best to do that with the developers of the Boulders. With respect to the agreement that has been eluded to; in 1987 when Eaglebend annexed it's land into the Town and dedicated the roadways and bridge, it kept a piece of land private and retained ownership to that on the western end of the Eaglebend property, between the road and the property line. And, the effect of that agreement and the intention of it and the understanding was that it would remain private and could not become a public roadway, except on terms that were acceptable to Eaglebend. It was intended to give Eaglebend the ability to recoup part of the very considerable investment it made in the bridge when it was required to have two means of access, when they initially developed the property back in 1987. 12 But, Eaglebend is committed to working with the developers and trying to get this down on acceptable terms. It is our belief that it is essentially a private matter between the two developers. And, going forward, we would also be amenable to working out some basis for everyone that is in to the cost of the bridge at that point; recouping part of their investment if others are in a position of using it down the road. Councilor Hines commented so the whole basis behind this.thing,is they retain that 10' section of land in order to recoup the cost on construction, capital cost for construction of the bridge. Mr. Stocks stated yes. Councilor Hines commented so therefore the inflated figure of $400,000, for a 10' section of land. Mr. Stocks stated I wouldn't say it is inflated. Mr. Stocks stated it was $800,000 total cost in 1980 dollars. That is without any cost of inflation or interest at that point. And, that is what we are looking at now or what has been discussed at this point. Mayor Reynolds stated I am glad you guys are working it out and not us. An unidentified man added one thing in light of what Mr. S,argis said that he is correct, we can work it out and if we request the Council, the question is if there is a methodology legally to add further developers to come in and show the cost and that is what he'is eluding to and that is what we are working with him on as well. That is when we look to the Council for help, if the Council can. Other than that, we think it is a private matter to be discussed on our own. But we do support his project. Councilor Fawcett commented with respect to the bridge, I would hope to see some agreement reached between the parties and with the help of Council if necessary, at the same time that we approve, should we approve, the PUD. Because, to make it subject to'in other words; OK, we approve the zoning subject to you folks getting together on bridge ingress, egress, on the bridge; and construction starts and six months later there is no agreement because you can't agree for whatever reason, that could present some problems for everyone. So, to me if you could solve this issue simultaneously with the PUD . . . Mr. Sargis interjected, in the staff report it mentions the approval of the PUD and going through design review and obtaining a permit that this has to be put to bed, sort of speak, prior to any issuance of a building permit. I believe that is a guarantee; that this agreement has to be in place. In essence, what the agreement-is, is we'are guaranteeing the Town, prior to any receipt of any building permit, that we will provide that right of way. Councilor Fawcett stated I would think you would want this agreement sooner than later. Mr. Sargis stated sooner than later. Mr. Donaldson asked if there were any questions regarding the Hurd Lane setbacks- Hearing no questions, Mayor Reynolds open the meeting to public input. Ms. Chris Ekrem, resident at 4130 Eaglebend Drive, stated I too have attended the P & Z sessions in regard to this issue. One question that I would like to ask the developers is-_the last: meeting in March which you presented your revised information in it, I thought that I heard that you were going to bring the density down again to 140 units and this evening I've heard no mention of this. I wonder if this could be discussed, please. Mr. Donaldson responded we have never made such a statement. Mr. Tony Siebert stated he is wearing two hats this evening; first of all I am a developer here in Avon and secondly I am also a private citizen and homeowner on Eaglebend Drive. Mr. Siebert stated let me give you two cents worth of background as a developer. I have been developing in Colorado since 1969 and have developed almost 1/2 billion dollars worth of property. Lost most of it in the 1985 crash and came to Avon in 1988 in semi-retirement and have been building duplexes and some condos in Avon since that time. 13 Mr. Siebert continued, we looked, as developers, at this property and submitted a contract on it and met with Town of Avon planning staff. We were informed at that time that we would have to, at our cost, complete Hurd Lane,and that brought up the $400,000 issue. Based on the timing, this was several years ago, and the timing was such that the real estate values hadn't appreciated to what they are today, so we backed off the property. We did not consummate a sale; did not follow through. Never the less, as a developer, I was prepared to incur the full cost of putting in Hurd Lane. And, let me state, in every other project that I have done in Denver, Colorado Springs, Boulder, and Westminster, wherein I am developing a significant parcel of land and wherein I have to put, or there are additional roads required, utilities required, what have you to develop my piece of ground, I have always ended up having to pay for all of those utility extensions, road expansions, etc. myself. In every case, the municipality, or the county, or the state, that was governing the issue permitted me to put in a recovery agreement, wherein as other property owners, along that same road that I developed, installed apartment buildings or commercial properties or what have you; developed their property, they would pay me back a fair share portion of that road, or utility, or street light or what have you. It's the norm in the industry. The developer typically goes.in with that expectation. The developer always goes to the governing body and asks for relief. And, I would expect nothing else from these developers: Now -let me put my private citizen hat on. As a private citizen, I will fight tooth and'nail to preclude the Town of Avon paying out a nickel of their money to extend Hurd Road. I expect the developer to pay for that road and'I think it is very fair that he recover a share of his costs, as time goes on and as other people develop properties that are in fact accessed by that road and improved by that road. But, I_don't think it is reasonable,to expect the Town of Avon to put out anything for access, to paying for that access road. Mayor Reynolds stated I don't think anybody has asked us for that, have they. No one has asked us. Mr. Seibert stated it was his understanding there was such an action that had been taken or might. Councilor Fawcett stated we haven't heard of it. Mr. Seibert stated good. Councilor Fawcett thought we would tend to agree with you. Councilor Nottingham stated as our Town Attorney stated earlier, all of you who have come here to say something tonight that you thought was important, whatever, to of course realize that as he stated earlier, the next meeting, that this was an informational meeting, and that the next meeting is the actual public hearing, in case for any reason it would have to be taken further. So, you might want to consider that as far as putting it mentally on schedule if you want to make sure if any problems were to come up that your interest would be covered. I just wasn't to sure that people realized that this wasn't exactly the public, public hearing. Am I correct, John. If it has to be carried farther; in to dispute I am saying. So, you know, to make sure that you be heard'by the people that you want to be heard by; this was informational. Mayor Reynolds asked if Council wanted to take any action on this ordinance. Councilor Hines stated there are three different sets of recommendations; one from the developers, one from P & Z, and one from Staff. I don't know if you want to do a combination of the three or you want; just follow the recommendations of one or the other. Mr. Donaldson stated that because of the discussions tonight and some of the coming together on some of the issues, we are probably more in agreement with the Staff report and maybe we could touch on those. I guess No. 2, we are paying for the right of way and improvements through out our property as well as our participatory part on the 10' strip of land or the bridge, how ever you want to phrase it. 14 Mr. Donaldson continued, so, I think we could probably accept staff's condition No. 2, provided we look to the Town.for some assistance in facilitating; this recovery agreement that Mr. Seibert mentioned. Attorney Dunn interjected and stated may I make a suggestion. Attorney Dunn thought we are really getting ahead of ourselves. Obviously staff needs to address particular issues with respect to recovery that has been discussed. I think all you need to do at this point is to get the ordinance adopted on first reading so that it can proceed to second reading in two weeks. I think that the decisions, that you are thinking about, ate appropriately made at that time. Councilor Hazard asked if Attorney Dunn was suggesting to approve this first reading. Attorney Dunn stated that was a suggestion. Councilor Fawcett wanted to clarify Attorney Dunn's comments. In other words, procedurally we'll go ahead and pass this ordinance on first reading. But, in terms of amendments, changes that we, staff, or whatever, that will come up in two weeks time. Attorney Dunn stated that is correct. Attorney Dunn stated after; you need the benefit of receiving comments. Councilor Fawcett added, we would like to see the property and many other things to really get involved. Councilor Hines motioned approval of Ordinance No. 94'-'12, Series of 1994, on first reading. Councilor Fawcett seconded the motion-. Motion carried unanimously. Mr. Donaldson thanked Council for their time and invited Council to a site tour at their convenience, before the„ next meeting. Mayor Reynolds stated we are going next Tuesday at 4s00pm,, subject to change. Mayor Reynolds informed Ms. Pat Casey is present; she was unavoidably delayed this evening and that she would like to address the Council at this time. Ms. Casey requested a contribution of $200 for Project Graduation for Battle Mountain High School. Project Graduation is an alcohol and drug free celebration on the night of graduation. Councilor Hazard motioned to grant a contribution of $200 for project graduation - Battle Mountain High School. Councilor Nottingham seconded the motion and the motion carried unanimously. Councilor Hines stated from here on out, no more money guys. Mr. James stated he will take the $200 out of the special events account. Councilor Roof suggested to contact all organizations that receive contributions, as well as those that don't. Town Clerk Neyhart agreed that in the future all will receive letters. Resolution No. 94-15, Series of 1994, A RESOLUTION APPROVING THE PRELIMINARY PLAN FOR FILING NO. 2, MOUNTAIN STAR SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO Mayor Reynolds noted this is a public hearing. Ms. Holden stated this is a preliminary plan for Filing No. 2, Mountain Star. It contains 619.75 acres. There will be six residential lots, new ranch central location, and 567.34 acres of open space dedicated, with Tract Y being dedicated to the Town. 15 • • It is in general conformance with our preliminary plan requirements. Recommendation is before Council to approve Resolution No. 94=15 and the proposed preliminary plan for filing No. 2, Mountain Star with the following conditions; 1.) that Tracts V and W be defined as public access and maintenance easements for slope maintenance along Mountain Star Road, 2.) that the Final Plat include Tract Y, with dedication to the Town of Avon, 3.) that a Subdivision Improvements Agreement for Filing No. 2 be approved by the Town Council at Final Plat. Mr. Rick Pylman, representing Mountain Star, gave overview of the preliminary plan. Councilor Roof motioned to adopt Resolution No. 94-15, Series of 1994. Councilor Hazard seconded the motion and the motion carried unanimously. Resolution No. 94-11, Series of 1994, A RESOLUTION DESIGNATED PROVIDING FOR THE AWARD OF THE TOWN OF AVON, COLORADO, SALES TAX REVENUE BONDS, SERIES 1994 TO COUGHLIN & CO., INC.; PROVIDING FOR THE INTEREST RATES FOR EACH MATURITY OF THE BONDS; APPROVING THE PURCHASE AGREEMENT AND PRELIMINARY OFFICIAL STATEMENT IN CONNECTION THEREWITH; AND PROVIDING THE EFFECTIVE DATE HEREOF. Mr. James recommended this matter be tabled to the next meeting.. Councilor Fawcett motioned to table Resolution No. 94-11, Series of 1,994 till the next meeting. Councilor Hines seconded the motion and the motion carried unanimously. Next on the Agenda under Unfinished Business was'the Grant of Easement /-Anointed-Christian Church. Mayor Reynolds-stated he understood the two parties were unable to get together." Pastor Richard VanDusen wrote a letter to Council addressing the issues that were brought up at last time..-I;did try to meet with the Chambertin folks.- We-had numerous phone calls and none were returned. We have not been contacted one time. We finally did have a meeting, with reluctance on the Chambertin Homeowners'. President, with the stipulation that they have already given their opinions. So, the lawyer wasn't present, and nothing was accomplished. Councilor Fawcett asked if Pastor VanDusen was of the opinion that the matter was left on the basis that both parties would get together and discuss this matter. Pastor VanDusen said yes. Mayor Reynolds stated he was under the impression that Mr. Shapiro and the Chambertin attorney would get together. Mr. Shapiro stated that when he walked out of the last meeting he said to Mr. Eskwith we need to get together. Mr. Eskwith said well you need to get together through ban because that is who I represent; I can't make any decisions for them that they don't want me to make. But, I believe that if we get together, we can make it work out. Then what happened was 'I called Dan the day after the meeting., He said he was not able to meet in the immediate future as he was going out of town. Then, unfortunately my wife had to have hand surgery, so I was out of town for a week. But, starting the day he got back, Pastor VanDusen tried to set up a meeting with him. 16 0 • Mr. Shapiro continued, Dan did express to me, but he is here and can speak for himself, in the brief conservation I had with him, that he saw a meeting as not being real productive because he couldn't do anything-without his owners telling him to do something different. I inferred that therefore if he can't tell Mr.. Eskwith anything different, that nothing can happen. And, then Pastor did have the meeting and as Pastor said it was Pastor's impression that they really didn't want to make any concessions in their position, not withstanding the fact that Council hoped we could appear today, instead of being adversaries, with some kind of joint agreement. And, we had hoped that too. But, to put this in perspective, I just want it to be of record that I think we applied for a building permit close to twelve weeks ago and we have had our building permit ready to be issued for now I think seven weeks, counting this three week delay. And, so that is a really long time to wait to resolve something that, I want to remind you, we,only did this because the Town Staff and the P & Z didn't suggest it, they basically said we want you to redesign your access,through the joint property that the'Town owns. We are not at a conceptual problem. We have finished working drawings, a permit ready to be issued, they are ready to break ground, we have been ready to break ground for now seven weeks and we really would like the Council to take some action so our building permit can be issued. That is pretty much repeating what I said last meeting, but now its three weeks later. "'And, we did invite someone from Alpine Engineering to be here tonight, because there were a lot of questions about the engineering, the drainage, and things like that which as Pastor pointed out in his letter, has been approved by the Staff and P & Z. But not withstanding, if you want to ask Alpine Engineering again, they have the representative here that can answer any questions about the design of the access. Also the attorney for the church is here, Kevin Lindahl. Councilor Roof stated that according to Pastor VanDusen's letter, the entrance that now exists is 56' wide and in Steve Amsbaugh's memo it says it is 22' wide. Which is it. Pastor VanDusen stated the road that goes into the Chambertin property is 211-22' wide. Where it fans out to meet the road it is 56+1. Councilor Roof stated so the narrowest part is 22' and the pavement as it meets Nottingham Road is 56' wide. Pastor VanDusen stated right. Pastor VanDusen added that Nottingham Road is 22' wide. Mr. Eskwith did think he was going to get called by his client and that he, his client and Mr. Shapiro would sit down and discuss some of the issues that are involved with the granting of a second easement to this easement area. I think that the homeowners are still very concerned about the easement. I would like to restate that I think there are some legal questions here that haven't been fully addressed. Most of the cases in Colorado discuss the relationship between the grantor, the property owner, and the grantee. One thing is clear if indeed an owner has the right to give more than one easement to the same easement area, the second easement is junior to the first easement. We are the senior easement and we have primary rights. I guess the question is; is what is happening here an unreasonable interference with the rights of Chambertin. They certainly feel it is and are very concerned about it. They feel property values will be affected. They feel there is,a safety issue. The feel that given the grade, the mutual use of this easement by both parties is unsafe. And, they feel there will'be interference with their ability to use the easement as freely as they did previously. I understand that the Council is in a position where they have an approval of a development and that approval shows this particular access. That is a.difficult situation for us; I don't think we were involved in that approval process. 17 i • Mr. Eskwith continued, we would still like and hope and wish that there was something that could satisfy both the Church and Chambertin that would be mutually beneficial without giving Chambertin the kind of problems that they are frightened of during both construction process and during the use by the church.- I was just curious as to why easement / access couldn't be created that was in the same area that is owned by the Town, but along side the access to Chambertin; is there any reason why that can't be done or why that hasn't been considered; so that Chambertin has their entrance and the Church has it's entrance. Mr. Glen Palmer from Alpine Engineering stated I would assume on a road like that you probably try and minimize the access points to matters that balance between mobility and whatever. Like I- 70, there are no driveways in it. And, on a road like that, that serves Wildridge an.d~,Mountain Star and other roads, you just don't want to have access points or you want to minimize those. And, I would assume you wouldn't want to have anything especially that close to one another. Mr. Wood added that in order to put a second access in,and maintain grades and so forth, that probably it would be immediately adjacent to the same drive, but on the other side-of it. So, in essence it would cross it instead of having, where it leaves the Nottingham Road, you may have instead of ,56'; you may have 100' of driveway. So, you have a totally uncontrolled situation which is even worse than separate driveways. Just from the layout of the two sites, the Church site has thesame.problem that the Chambertin site had in access; in getting enough.grade and change where you can get a reasonable grade coming up,into the project. By utilizing the same driveway, what you are doing is being able to come.up on the grade that goes up into Chambertin and come around,, kind of like a switchback type situation. Where in order'to maintain the same grade, you would move to the east of Chambert-in driveway and actually have to cross it to get in there, creating an even worse situation. Councilor Roof asked that if it is 56' wide, why couldn't there be enough room for two separate cars. Mr. Wood stated the 56' is kind of a misnomer, in that the 56' would be at the end of the radius. If you have a 15' radius coming out where that actually ties in, your adding 30' to your 22' driveway; so that is roughly how you're getting to the 56' width across there. That is a very, very short section that is 561. That is basically your flares to get into the site and to tie into the driveway. 56' is not a useable number. Councilor Hines voiced curiosity because he brought up the question of exclusivity and seniority on this thing. As I read it,.is this our standard grant of easement form that they; Chambertin; would have had. Because, in it, it states a non- exclusive easement. Attorney Dunn stated we don't really have a standard form. Mr. Lindahl originally prepared it and it maybe that I suggested the language with respect to non-exclusive. Councilor Hines stated he is curious as to what's on paper with Chambertin. Mr. Eskwith stated the paper with Chambertin does not state that it is a non-exclusive easement. Mr. Eskwith stepped away from the microphone and am unable to transcribe his next few comments. There were too many people speaking at one time to transcribe. ,Attorney Dunn stated Chambertin's easement is silent. And, the law is that if it is silent, it is non- exclusive. Councilor Hines also questioned first and second / junior and senior. Attorney Dunn stated the law is when a non- exclusive easement is granted the grantor-of the easement may make use of the easement in common with the grantee. The proviso being that the use of the grantor may-not, unreasonably interfere with the use by the grantee. I am not aware of what is being proposed here would unreasonably interfere. I analyze it to being a road easement, which is really what it is, where you have more than one lot owner making use of a common road. That is certainly not unusual where an easement is granted that benefits several lots and all of those lot owners use the road. 18 It is not a matter of who gets to use the road first thing in the morning. It is a question of whether or not the use by one lot. owner is going to unreasonably interfere. One lot owner goes out and blocks it, they can't do that because that is interfering with the easement. Certainly if the Church makes some use of the easement that unreasonably interfered with Chambertin's use of it, then Chambertin would have rights to stop that. That does not prevent the Town from granting the easement. The Town may grant' the easement giving non-exclusive rights to the Church to make use of it. Mr: Eskwith stated that if the use was from the outset clearly a use that was going to interfere with the initial grantee's use of that easement, I would think that the Town could be prohibited from the issuance of the easement. I would agree with Attorney Dunn,.that it's a question of fact as to whether or not this second use unreasonably interferes with the first use. And, it is of course the people of Chambertin's position that there is a reasonable interference. But, it is a question of fact. Attorney Dunn stated he makes the same recommendation he made to Council at the last meeting; Council grant the easement and direct him to redraft it so as to protect the rights and interests of Chambertin. Mr. Eskwith requested to list some of the things Chambertin does request. Mr. Eskwith mentioned a capitol improvement made to that easement by Chambertin and that they would like some contribution for that. Councilor Hines thought all these requests were to be worked out after last meeting and before this meeting. Councilor Hines commented so your party has been remiss; or the information that we are lacking to make a decision is information lacking from your party; that information to set forth conditions straight forward enough where we can find out whether they will abide by the conditions that you are going to put forth. Too many people speaking at once, regarding issues to be worked out. Councilor Fawcett excused himself for interrupting and found this discussion hard to believe. These were all the issues you were going to get together on in the past two weeks; now you are coming back to us and saying you want to get together on them and put these folks back another two weeks before they get the easement;'if they are going to get it. Councilor Fawcett questioned if this is quite fair. Councilor Yoder motioned to approve the request by Anointed Christian Fellowship Church for an access easement on Tract B, Block 1, Benchmark at Beaver Creek subject to Attorney Dunn's approval. Councilor Fawcett seconded the motion and the motion carried unanimously. Next on the Agenda under New Business was the.Eagle County Animal Control Contract Discussion. Councilor Hines motioned to table the Eagle County Animal Control Contract until the next Council Worksession. Councilor Yoder seconded the motion and the motion carried unanimously. Next on the Agenda under New Business was the Change Order #1 to A & P Agreement Mr. James stated that basically this is when we added the weight and-aerobic-rooms there were additional design fees that need to be added to the part one agreement. Mr. Brooks stated this does not change the project cost, it simply takes $500,000 that was allocated for the weight and aerobic area and takes $19,500 and allocates that to the part 1 services. This is just a transfer of money and does not change the total. 19 Councilor Nottingham motioned to approve Change Order Part One - Number 1 - in the, amount of $19,500. Councilor Yoder seconded the motion and the motion carried unanimously. Next on the Agenda was the Mayor's Report. Mayor Reynolds stated he received a phone call from Mr. Bob McGill of the Post Office. Mr. McGill informed that within the next month, they will be up here before the P & Z regarding a new Post Office. Apparently there were four approved in the Country and Avon was one of them. Next on the Agenda was the Consent Agenda: A.) Resolution No. 94-16, Series of 1994, A RESOLUTION APPROVING THE FINAL PLAT FOR THE RESUBDIVISION OF LOT 98, BLOCK 1, WILDRIDGE, TOWN OF AVON, EAGLE COUNTY, COLORADO b.) 1994 Summer Air Service Contribution Commitment Agreement c.) Elam Construction / Street Overlay Program d.) Financial Matters e.) Approval of the March 22, 1994 Council Meeting Minutes. Councilor Yoder motioned to approve the Consent Agenda. Councilor Nottingham seconded the motion and the motion carried unanimously.- There being no further business to come before Council, Mayor Reynolds called for a motion to adjourn. Councilor Nottingham moved to adjourn. The motion was seconded by Councilor Yoder. The meeting was adjourned by Mayor Reynolds at 10:22PM RESPECTFULLY SUBMITTED: Patty Ne art, Town Clerk