Vail Daily column: Use by right
Personally, I don’t like this whole rehab center on the summit thing. Yes, yes, I get it; it will bring high-end employment opportunities to Happy Valley and I mean no disrespect at all for those earnestly trying to piece their lives back together. I just know that I wouldn’t like it if a rehab center — however noble the intent might be — were to pitch camp in my backyard.
Perhaps it’s visceral. But visceral counts, too.
And there are a whole bunch of issues revolving around the effect on property values, particularly in a community just nosing out of the last community disaster. There are reasonable arguments too about how this 600 pound gorilla might possibly affect purchase and sale agreements; was the potential new use properly disclosed? Did it have to be? Was discovery incumbent upon the purchaser instead of the buyer? Might a property under contract not appraise for what was offered in purchase? Might lenders back away?
Presumably, these are all things that will be sorted out in court or otherwise. But here’s the thing; the commissioners got it right. Like it or not — and clearly lots of folks do not like it even one little bit — that’s the simple truth.
Conversion of The Lodge & Spa at Cordillera to an in-patient addiction treatment center is a use by right. That’s right; “by right.” As you might intuit, a “by right” use is a step up from a “permissive right.” But more on that in a second.
There is, to be sure, a certain tension here. Since time immemorial, the law has recognized the near sanctity of rights in real property. Those with a sharp eye among you might have noted the operative word here — “near.” While all real property is considered at law to be unique and a man or woman’s home is still his or her castle, rights in property are not, in fact, absolute. Say, for example, you thought it might be a keen idea to open a pig farm on the south forty of your Wildridge home lot. While artisanal foods may be all the rage, I’m guessing that the town of Avon — to say nothing about the Wildridge Homeowners Association — may have a thing or two to say about your plans. Property rights are, in fact, not inviolate. Although I want to resist going off on an unnecessary tangent, think, if you will about eminent domain — a not-so-extreme example — where government may take your property against your will if for a public purpose.
Sometimes what is in opposition to private property rights are the rights of business owners. And included among those rights is the right to, well … operate one’s business. If, say, a restaurant is permitted to operate in Vail Village and one buys a condo downwind from the restaurant, presuming the business is complying with all laws and ordinances, if the condo owner objects to catching a whiff now and then of lobster thermidor sizzling beneath the broiler, more likely than not, the condo owner will be out of luck. While we can all be sympathetic of suffering the scent of lobster thermidor when slurping ramen, the business owner’s right will likely prevail.
In Cordillera, these two rights have rubbed up against one another. And, understandably, how they chafe.
Constitution of Sorts
What settles it is the PUD, or Planned Unit Development.
What a PUD is a constitution of sorts that, among other things, spells out what uses will be permitted (or not permitted) exactly where within a new development. What’s more, a PUD often spells out what uses may be permissive and which are “by right.” Permissive uses, you might have guessed, require permission. “By right” are — you guessed it — automatic; no consent required. As long as the use falls within the guidelines, one can do what the rules say that one can do.
In Cordillera, there were, apparently, a list of 34 uses that were “by right” associated with The Lodge. The current proposed use, to the chagrin, anger and discomfiture of many, is simply (or, perhaps, not so simply) one of them.
At least one gentleman objected, holding that it was the job of the commissioners to effect the will of the people and the people were clearly opposed the sale and the proposed new use. He is, however, wrong. In this instance, it is the role of the commissioners to apply the rules that were adopted with the PUD. In point of fact, they had no real discretion. While I cannot say so with utter certainty, the betting money would be on the commissioners if this were taken up on litigation and against them had they imposed their will in derogation of the PUD even if the public backed them.
Despite the historic use by the community of The Lodge as a social center, when push comes to shove, a use by right prevails. Simply, residents of Cordillera do not have a fundamental right to make use of property that is not theirs and the owner of that property has every right to use it as he or she or it sees fit. So long as that right is organic to it in the PUD.
Is Concerted Care Group greedy and insensitive to the community? You could argue that it is.
Look, I get it and I don’t like it. But the commissioners are right.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.