Booth Heights plan passes Vail Planning and Environmental Commission by one vote

VAIL — In a 4-3 vote, a controversial plan to build 61 residential units on bighorn sheep habitat in East Vail passed the town’s Planning and Environmental Commission on Monday.

Commissioners Brian Gillette, Karen Marie Perez, John Ryan Lockman and Ludwig Kurz voted in favor of the development plan, which was presented by Triumph Development Chief Operating Officer Michael O’Connor.

Perez said while the plan wasn’t perfect, Triumph had gone above and beyond the efforts required of a developer.

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“This is about whether or not the applicant has met the criteria,” she said.

The commission heard from wildlife experts including current and former members of Colorado Parks and Wildlife who said while the impacts on the dwindling herd of bighorn sheep in the area can’t be predicted, the newest version of the development plan’s wildlife mitigation effort addresses the primary concern — improving off-site habitat enhancements in areas outside of the 5.4-acre parcel that’s zoned for housing.

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Gillette said that the bighorn sheep population is in decline, and this development is not going to change that.

“The only thing that’s going to change that is doing off-site enhancement like they’ve been talking about since 1998,” Gillette said. “Love it or hate it, now we have a properly vetted development plan for the town council to consider.”

‘Prioritization of habitat improvement’

Gillette was referencing the U.S. Forest Service’s 1998 habitat plan for the area, which proposes that migration corridors are cut and maintained nearby and says prescribed burns should be used on Forest Service lands outside of wilderness areas to fertilize the bighorn sheep habitat.

Aaron Mayville, of the U.S. Forest Service, said after reviewing old notes that it appears that concern about smoke impacts prohibited the prescribed burns from taking place.

“It’s been a budget, staffing, prioritization conversation from there,” he said. “If there is some good that’s coming out of this, it’s that there’s now some prioritization around some habitat improvement up there.”

In revising its wildlife mitigation plan for Monday’s meeting, Triumph pledged to offer $100,000 in seed money for habitat enhancement for the bighorn sheep.

“It’s $100,000 that we did not have, previously, to do habitat improvements,” Mayville said.

However, “the funding doesn’t tend to be the hurdle,” in prescribed burns on Forest Service land, Mayville said.

The major hurdle, as outlined by Mayville, lies in the wilderness boundary. The bighorn sheep habitat above the developable parcel — the off-site habitat biologists say is in critical need of enhancements if the bighorn sheep herd is to survive — is mostly wilderness.

“We have policy direction that we, the Forest Service, are not to do prescribed fire within wilderness,” Mayville said. “The 1998 habitat improvement work was outside of wilderness boundary for this very reason.”

Without passing judgment on such measures, Mayville said wilderness advocacy groups often oppose prescribed burns in wilderness areas in an effort to maintain the value and natural characteristics of wilderness.

In this case, however, since wildlife habitat improvement and wilderness values are at odds, Mayville expressed some optimism at the possibility of a prescribed burn in the Eagle’s Nest Wilderness areas, which are bighorn sheep habitat, in an effort to increase the chances of the herd’s survival.

“There is precedent nationally that the Forest Service is challenged on things like this,” Mayville said. “That doesn’t mean it can’t happen, that we can’t get in a room and really talk through this, but what it does mean is it’s a longer solution, a year or two planning process.”

In voting against the development plan, Commissioner Rollie Kjesbo said if the parcel is developed prior to the mitigation efforts occurring, the sheep will have no where to go. 

“The off-site mitigation has to happen before this project starts,” Kjesbo said. “The only ones who get mitigated on in this thing are the sheep.”

Native herd

The bighorn sheep herd, as described by Gene Byrne, who was a wildlife biologist in Vail and the surrounding areas from 1985 to 2002, is a native herd to Colorado and has been using the Booth Heights area as a winter range for “a long time, could be thousands of years,” Byrne said.

The most recent count of the herd has it at 41 sheep, down from 125 in the 1990s. Infested aspen stands dying and leaving downed timber in the sheep habitat, which restricts movement to winter foraging areas and escape terrain, has been cited as a cause of the herd’s decline. A controlled burn would solve that issue, biologists agree.

“This is on the edge of the really prime sheep winter range … the only really mapped winter range that we know,” Byrne said.

In studying the herd in the 1990s through tracking collars, “I knew that some of those sheep would spend the early part of the winter in Black Creek and Brush Creek and Slate Creek, and then they would make this absolutely incredible migration right across the spine of the Gore and come down Booth Creek, and they’d hang around there a lot,” Byrne said. “Why would those sheep pick up, in the middle of the winter, at significant risk of avalanches and everything, and move all the way down here to spend a couple months in the wintertime before they go back early in the spring, when there’s still a lot of snow in the Gore Range, and go back to these landing areas, clear up in Slate, Black and Brush Creek? There’s something about this area that really makes it important.”

Original zoning origin story

In October 2017, after the property had been re-established as being owned by Vail Resorts (ownership had become unclear for a couple decades), the Vail Town Council voted to rezone the property from two-family residential on the 23.3-acre parcel to housing zoning on 5.4 acres and natural area preservation zoning on the remaining 17.9 acres. That rezone passed the council by a vote of 5-2.

At that time, in voting in favor of the rezoning, council member Jenn Bruno noted that the land is private property and had already been zoned for residential development since the ’70s. 

Speaking to the town’s Planning and Environmental Commission on Monday, Vail Homeowners Association Executive Director Jim Lamont said he was part of the group that helped see to the property zoned for residential development all those years ago.

“We could not come to an agreement with Vail Resorts as to the acquisition of the property; we agreed to disagree, and the town imposed … its lowest zone district in those days, which was duplex zoning,” Lamont said. “We zoned this as a duplex, knowing full well that the most you could get on this site, under that condition, was eight units.”

The Town Council now has the opportunity to examine the ramifications of its zoning decision, should it decide to examine the Planning and Environmental Commission’s Monday decision. Council members would need a motion, a second and a majority vote to do so.

Regardless of that decision, Gillette said following Monday’s meeting that Town Council members need to take a hard look at the bighorn sheep herd and what they can do to help facilitate the enhancements necessary to save the herd — in a separate action from the Booth Heights development.

“The real shame would be for the council to do nothing,” Gillette said. “To not throw money in to save this herd would be a shame.”