Vail Resorts appeals district court’s condemnation decision for contested Booth Heights parcel

Vail Resorts on Monday filed an appeal in the Colorado Court of Appeals calling into question the Booth Heights condemnation decision that granted the town possession of the highly contested 23-acre parcel in East Vail.

“We are filing this appeal because our goal has always been to create incremental affordable workforce housing in our community,” said John Plack, a senior communications manager for Vail Resorts. “We are hopeful a mutually beneficial resolution can still be reached.”

The filing on the afternoon of Nov. 6 — just a day before Tuesday’s election for four Town Council seats in Vail — comes just over two weeks after the Eagle County District Court issued its final rule and order, which set forth the final process for the town to purchase and acquire the East Vail parcel.

Following the issuance of the final rule and order on Oct. 20, the town deposited the remaining $5,643,984.64 owed to Vail Resorts that same day. That amount, combined with the $12 million deposited by the town in June, equals the just compensation for the parcel, which was determined by a three-panel commission in September. The town may also owe additional legal fees.

While the appeal moves forward, the money will stay with the court registry. However, Vail Resorts can elect to withdraw the deposit at any time, a move that would also dismiss the appeal, said Kris Widlak, the town’s director of communications.

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Vail Resorts is appealing three separate rulings from the condemnation proceedings, which began on Oct. 13, 2023, when the town filed a motion for immediate possession and petition in condemnation of the Vail Resorts’ property. The appeal lists seven specific issues on which the resort company is basing its appeal.

Throughout the condemnation proceedings, the town of Vail has maintained that its rationale for acquiring the site was for one reason: to preserve the site as open space for the area’s bighorn sheep herd.

“The Booth Heights parcel and surrounding area are uniquely suited to support bighorn sheep and have for hundreds of years,” reads a Vail Town Council memo from its Oct. 3 meeting. “The Gore Range herd is endemic to Colorado and is one of the only remaining native herds in the state, but are threatened by development, ever-increasing recreation, and usable winter range of only about 150-200 acres.”

Throughout the proceedings, Vail Resorts has argued that the town condemned the property not to meet this stated purpose, but rather to “thwart the project,” as it puts it in the appeal.

“When Vail Resorts remained steadfast in its commitment to construct desperately needed workforce housing on the Property, the town pressed forward with condemnation to eliminate a project viewed as undesirable and distasteful by a group of Town citizens,” the appeal reads.

Widlak said on Wednesday that “the town feels confident the district court got it right, that we proceeded appropriately and we expect to prevail on appeal.”

What Vail Resorts is appealing

The first ruling being appealed was one issued in a May 3, 2023 order ahead of a three-day immediate possession hearing. This District Court order denied a request from Vail Resorts to exclude relitigation evidence that was filed by the town. In its appeal, the corporation is seeking a determination on whether the court erred in denying this request.

It adds that if the motion had been approved it would’ve “prevented the town from presenting evidence and making arguments contrary to the positions the town successfully litigated in the 2020 project appeal,” referring to the citizen group appeal of the Town Council and PEC approval of the workforce housing project. The town’s process was affirmed by the District Court in Oct. 2020.

Further, in Vail Resorts’ October 2023 appeal, it is seeking the appellate court to determine whether the District Court erred in allowing the town of Vail to present evidence and its final ruling on “the Town’s new position that the Mitigation Plan (part of the PEC approval of the workforce housing) for the Property was insufficient to protect the bighorn sheep.”

The second ruling being appealed is the court’s June 30, 2023, order, which granted the town immediate possession of the property. In this order, the court ruled that the town of Vail had the right, public purpose and need to acquire the site via condemnation. In its appeal, Vail Resorts asks the appellate court to review whether the town “met its burden of providing public use and necessity.”

Further appellate issues on this order include the court’s denial that the company was owed additional compensation based on the town’s emergency ordinance. Vail’s Town Council passed this ordinance on Aug. 2, 2022, and imposed a moratorium on new permits for the site.

In the appeal, Vail Resorts asks the court to determine whether the final “just compensation” owed should have included additional compensation based on the emergency ordinance and “town’s prohibition on use of the Property for a period of 11 months before the date of value.”

The appeal also asks the court to look at whether the town’s stated public use for condemning the property was a proper use of eminent domain, and “not a pretext for an improper use of eminent domain, such as to prevent an unwanted or unpopular development or retaliate against Vail Resorts.”

It also questions the order’s determination that the town acted in good faith to acquire the property from Vail Resorts.

The third ruling appealed is the District Court’s Final Rule and Order, which was issued by the District Court on Oct. 20, 2023. The appeal asks the appellate court to determine whether it was the correct final judgment entered.

What’s next

With the appeal filed, the district court has until Jan. 8, 2024, to assemble the case records and send them to the Colorado Court of Appeals. From there, the parties will then prepare briefs on the issue and continue through the appellate process.   

“Our hope was that this matter would’ve been settled with the district court decision, and we are very disappointed the appeal will extend this conflict into another year,” Widlak said.