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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 Chapter 17.14 Repealed and Reenacted. Chapter 17.14 is hereby repealed in its entirety and reenacted to read as follows: Ord.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 Page 3 of 7 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