Vail Whitewater Park lawsuit dismissed |

Vail Whitewater Park lawsuit dismissed

Geraldine Haldner

Senior District Court Judge William DeMoulin ruled May 3 that the Village Center Association, a group of homeowners in a condominium building just north of the whitewater park, failed to come up with sufficient arguments to challenge the construction of the whitewater park in October of 2000.

The homeowners initially believed the approval of the whitewater park application was not authorized under the town’s zoning laws.

Later, the case centered on the town’s placement of boulders in the streambed and if the resulting adjustment of the creek’s flows constituted illegal “recreational structures” in a 100-year floodplain, said Vail Town Attorney Matt Mire.

“The court basically agreed with the town that the whitewater park is a permitted use within the zone district and that the improvements did not constitute recreational structures,” Mire said, adding that the town argued the placement of boulders and the excavation of pools in the streambed represented “landscaping features, which are allowed under the land use plan.”

The U.S. Army Corps Of Engineers and the Colorado Division of Wildlife approved a permit sought by the town to build the whitewater park in the 100-year floodplain in April 2000. Both agencies refused a request by the homeowners to review the permit during the course of the appeal.

The homeowners first appealed the approval of the whitewater park by the Vail Planning and Environmental Commission to the Vail Town Council in June 2000. When the council chose to uphold the PEC’s approval of the whitewater park in September, the homeowners filed a lawsuit against the town in Eagle County District Court.

Tom Carpenter, president of the Village Center Association’s board of directors, said Friday the homeowners likely will not pursue further legal actions against the town in connection with the whitewater park.

The association has until June 3 to take its case to the Colorado Court of Appeals.

“We have had conversations about it,” said Denver attorney Gilbert McNeish, who represents the homeowners. “But I don’t want to speak on the board’s behalf.”

The homeowners initially sought to block the construction of the whitewater park in October 2000, but later rescinded their request for an injunction, when the town agreed to remove the boulders and restore the streambed to its previous state if the court found in the homeowners’ favor.

Council members who were part of the decision to spend $138,000 in Real Estate Transfer Tax, or RETT, money on the whitewater park said they were pleased the future of the amenity – which is popular with kayakers from near and far – appears secure.

Vail Town Councilwoman Diana Donovan said the judge’s ruling proves that private property owners can’t block every project on public land just because it might infringe on their privacy.

“If you want to be downtown in the middle of stuff, then you are downtown in the middle of stuff,” she said, adding that the whitewater park’s positive effects on the town and the business community clearly outweigh the homeowners’ need for peace and quiet.

Councilman Greg Moffet said he welcomed the judge’s decision, though he never feared the whitewater park was in jeopardy.

“I’m delighted and not the least bit surprised that they lost their appeal,” he said. “Their case looked petty and weak.”

Geraldine Haldner covers Vail, Minturn and Red Cliff. She can be reached at (970) 949-0555, ext. 602 or at

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