Vail, Vail Resorts wrap up court hearing over condemnation dispute in East Vail

After three days of presenting evidence and hearing testimony in the immediate possession hearing between the town of Vail against Vail Resorts, the fate of the East Vail site known as Booth Heights now rests with Eagle County District Court Chief Judge Paul Dunkelman.

The two parties wrapped up their final day in court on Wednesday, leaving Dunkelman to determine whether the town has the right to condemn the 22.3-acre parcel that is part of the habitat for a local herd of bighorn sheep. Dunkelman indicated on Tuesday that the decision would likely be made by the end of June.

Should the court rule in favor of the town, a valuation hearing would go forward in September over four previously scheduled dates.

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The three-day immediate possession hearing covered the history of the much-contested piece of land. Dunkleman heard how the parcel was included in the town’s Open Space Plan dating back to 1994 before its rezoning in 2017 split the property into 17.9 acres for Natural Area Preservation and 5.4 acres for housing. That rezoning led to the approval of a workforce housing development on the 5.4 acres zoned for housing by Vail’s Planning and Environmental Commission in 2019, which was appealed and ultimately upheld by the Vail Town Council. A newly-seated council then voted to condemn the parcel in May 2022, which led to failed negotiations between the two sides to reach an agreement outside of court throughout much of the past year.

During the three-day hearing, the town of Vail sought to prove its authority to condemn the land. It argued that it is taking the land to serve a public purpose, that the site is necessary for the area’s bighorn sheep herd as “critical” habitat, and that it acted in good faith to acquire the property but failed.

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Vail Resorts argued that the town acted in bad faith, that it treated this site differently than other developments in the area, that the site is “poor habitat” for the sheep, and that it did not seek to acquire the site for the sheep, but rather, had ulterior motives to attempt to acquire the land.

During the trial’s final day, Vail Resorts called its remaining witnesses to the stand. This included continued examination of Timothy Nelson, a land use specialist contracted by Vail Resorts, as well as an examination of Marianne Batchelder, a wildlife ecologist and biologist hired by the company. Bill Rock, the president of the company’s mountain division, also testified.

After Vail Resorts rested its case, the town in its rebuttal called Matt Gennett and Melanie Woolever to the stand. Gennett is the town’s community development director, and Woolever is a former United States Forest Service employee who was one of three wildlife biologists contracted by the town in 2019 during the commission’s review of the project.

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Wednesday’s testimony and evidence touched on many aspects of the case, including whether the subject parcel is “necessary” for the bighorn sheep herd, whether the town acted in good (or bad) faith to negotiate with Vail Resorts, and whether the town acted consistently with regard to the subject parcel and other development sites in the East Vail area.

In closing

Rounding out the hearing’s third day, both parties punctuated their arguments in their closing arguments.

Representing the town of Vail, Patrick Wilson spoke first and argued that the town had met its burdens in the case and that the corporation had not shown sufficient evidence that the town acted in bad faith. Wilson argued that the town showed “no other plans for the subject property,” no indications it would not be used as open space and rather for some private benefit, and no evidence that the town was trying to block the specific development on the site.

Citing prior case law, Wilson argued that “preservation of wildlife and all the other benefits that stem from that, “have been “clearly acknowledged” as a “legitimate municipal public use and purpose.”

Wilson stated that there was “no evidence that the town was trying to block a specific development,” adding that the town wants to “preserve this land but also are inviting workforce housing” up and down the valley.

Wilson further argued that the town’s intent “is to protect that open space,” and not to “thwart” a particular development or developer or to keep a “certain type of person out” of the town. He added that the town acknowledges the need for workforce housing and has made it a “huge, top priority.”

He also argued that the case presented showed that the town had a “consistent, long-term interest in acquiring this property” and preserving it for open space.

In representing that the town operated in “good faith,” Wilson pointed to evidence that the town made offers to trade or buy the parcel in question before resorting to condemnation. At this, he said he didn’t feel there was a “sufficient showing of bad faith” or “ulterior motives” in the “town’s intent to acquire it for open space.”

Wilson argued that Vail Resorts’ attempt to show bad faith had “a lot of innuendo and mudslinging” rather than “evidence of the town doing anything illegal” or of it acting with an ulterior motive, which he argued was needed to meet that determination.

Representing Vail Resorts in its closing remarks, Jack Sperber started by stating the town was using its powers of eminent domain not for public purpose but to “get something out of condemnation that it couldn’t get through its code or its standard land use processes.”

He argued the town was using these powers to “stop a project that it doesn’t like today,” calling it a “case where the town decided it wanted to condemn” and then went looking for a reason to do so.    

Part of the Vail Resorts’ argument was that between the project’s approval by the town’s Planning and Environmental Commission in 2019 — which was upheld by Town Council the same year — and the condemnation hearing, there was no new evidence or policy to suggest that the previous wildlife mitigation plan approved in that process wasn’t enough. Sperber, in his closing remarks, commented that the “property had already gone through entitlement based on the same set of facts.”

With this argument, the landowner’s defense also sought to demonstrate through its case that the town treated this parcel differently from other development in the East Vail area.

Sperber argued that the condemnation was not to “save the bighorn sheep,” but rather referred to it as a “reactive condemnation,” at a later point saying it was in reaction to “public demands.”

In the case, he argued that there was “very little evidence” that open space and wildlife preservation were “the motivations associated with acquiring this until very late in the game.”  

He argued that “government authorities can’t use condemnation in reaction to a specific development plan,” as it is not a “proper public purpose.”

Interpreting case law, Sperber stated that it “doesn’t matter” if the town preserves the land for open space and that it was “not enough” that it would benefit sheep.

He commented that the town’s “real central purpose is to prevent a specific development, control a site or to unwind land use entitlements that had already been granted.”

This, Sperber said was “bad faith.”

At the end of the three-day hearing, Dunkelman concluded with remarks mirroring those he gave at the hearing’s start. He commented that while it’s now his job to rule on the case, it was — and still is — a decision that the town and Vail Resorts could make.

While acknowledging that both parties have different stakeholders to please, Dunkelman stated his belief that both parties have a “vested interest in this community” as well as in open space and in workforce housing.

“Right now, you have people questioning that about both of you,” he added.

“You still have the ability to take control of this situation and find a resolution,” Dunkelman said. “I would encourage you to do that.”

Ultimately, Dunkelman acknowledged that at the current moment, it’s him that now has the “tough decision to make.”