Vail Resorts has 49 days and counting to appeal Booth Heights condemnation ruling

On Friday, Oct. 20, Eagle County District Court Chief Judge Paul Dunkelman issued a final rule and order in the condemnation proceedings between the town of Vail and Vail Resorts.

The final order stipulates that once the town completes payment for the 23-acre parcel in East Vail known as Booth Heights, the title of the property will transfer from Vail Resorts to the town of Vail. The town intends to preserve the site as open space for the area’s bighorn sheep herd.

According to the order, the town owes $5,519,985 — which is in addition to the $12 million it has already deposited to the court — to reach the total compensation owed for the property, which was determined to be $17,519,985 by a three-panel commission in September. It also is required to pay “pre-judgment interest” on the difference between the commissioner value and the deposit. This amount, the final order notes is $39,344.09 as of Oct. 20 and will increase by $1,228.42 per day until the funds are deposited.

Thus, as of Friday, the total deposit required by the town to take the title is $5,643,984.64. Kris Widlak, the town’s director of communications, said the town was initiating payment on Friday.

There still may be additional claims for legal fees as well, but these are yet to be determined, Widlak added.

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At its Tuesday, Oct. 4 Town Council meeting, the council voted 5-2 to approve the purchase of the property. The additional funds required will come from the town’s general fund. However, in the long term, it hopes that donations — from private donors and potentially from Eagle County — will help fund the additional deposit.

“I just want to request that future council members really work hard with the county to get the $5 million,” said Mayor Kim Langmaid at the Oct. 17 Vail Town Council meeting, adding that hopefully, the town can “not only get the $5 million from the Open Space Advisory Committee from their recommendation but also the $1 million that’s been raised by the citizens — with that effort continuing on.”

Vail Resorts’ spokesperson John Plack indicated in a statement to the Vail Daily that the company would reinvest the condemnation money “in our resort communities into affordable housing projects where it will have the biggest and most timely impact.”

There was some disagreement between the two entities over what the final rule and order would do. During a status conference on Wednesday to discuss the order, the town’s legal counsel argued that the final order should transfer the title of the property, while Vail Resorts’ counsel argued it should grant possession and use, but not title.

The town’s counsel, Pat Wilson, expressed at the conference that the town had public and private entities willing to help pay for the property but that those partners wanted to see the town acquire the title.

Vail Resorts’ counsel, Jack Sperber, expressed concern that if the title were to be transferred, it would lose its right to appeal.

In an order summarizing the rationale behind the final rule and order, Dunkelman wrote that the court acknowledges this concern.

“The concern is noted by the Court, but is not supported by the Court’s statutory interpretation. This question was raised during the status conference and the Town took the position and accepted that a title transfer could and would have to be unwound if the appellate court reversed the condemnation determination,” Dunkelman wrote.

On Wednesday, Dunkelman noted that there are two potential appellate issues in the case. The first would be an appeal of the valuation — determined by a three-person commission following a five-day valuation hearing in September. The second would be an appeal of the town’s right to condemn — which was determined in a district court ruling issued in June 2023 following a three-day immediate possession hearing in May.

Vail Resorts will have 49 days from the issuance of the final rule and order to file an appeal with Colorado’s appellate court.

For the town, its next steps include continuing to pursue a conservation easement and donations from the Open Space Committee and others, Widlak said.

“However, the easement agreement wording would include a contingency regarding the completion of the appeals process,” Widlak added.

This refers to the fact that an easement would be walked back in the event that an appeal is filed and determined to have merit by an appellate court — thus reversing the condemnation determination, as indicated by the judge’s final order.

As of Friday, no appeals have been filed.

The Vail Daily reached out to Vail Resorts for comment on the order, but it declined to comment.