Wilner: Vail ruling on notification rights for property owners gets it right (column)
August 25, 2017
Editor's note: Find a cited version of this column at http://www.vaildaily.com.
The Cordillera community's opposition to the proposed conversion of the Lodge has been characterized as a typical example of "not-in-my-back-yard" obstructionism. That may make for good copy, but it is simply not true.
It has been more than a year since the Lodge's owner, Behringer Harvard, announced that it had entered into a contract to sell the property to a Baltimore-based group headed by Noah Nordheimer that planned to convert the Lodge into a high-end drug and alcohol treatment center. Nordheimer quickly announced that, in order to protect the anonymity of his high-paying clients, he would close the property off completely from the Cordillera community, barring any Cordillera resident from setting foot on the property.
Nordheimer has now acquired the Lodge, but his ability to develop it as he wishes is being challenged in court. That challenge has nothing at all to do with trying to prevent drug and alcohol addiction treatment at Cordillera. The Cordillera community has made clear to Nordheimer time and again that it does not object to persons with addiction problems receiving treatment at the Lodge or anywhere else at Cordillera.
What we object to, plain and simple, is the elimination of the Lodge from the Cordillera community. And we object to Nordheimer's claim that he has the absolute right to make this dramatic change to our community on the basis of a purported change to our zoning regulations, our Planned Unit Development, which was never disclosed to the Cordillera community.
A critical principle is at stake here, and it should be important to all homeowners in this valley. As this paper reported last week, the town of Vail recently placed a hold on a proposed development because neighboring property owners had not been "properly notified about" the proposal. The lawyer for the neighbors complimented Vail for recognizing the right of neighboring property owners "to be (notified) and involved in the public process related to a major zoning change that will significantly impact and change their residential community." That is an important right for all homeowners, and it is exactly what is at stake in Cordillera.
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The Lodge is central to the Cordillera community, and its existence was protected in the Cordillera PUD since the community's founding more than 25 years ago. Nordheimer claims that a 2009 PUD amendment changed that and authorized the Lodge to be eliminated and replaced by any of 34 other uses, ranging from his proposed rehabilitation center to an office building, a retail center or a parking garage.
If that were the purpose of the 2009 Amendment, however, then the Cordillera community was certainly never informed of it. Rather, the community was expressly assured that the 2009 amendment would "not substantively change the existing PUD" and would "not affect" adjacent property owners because it would "not" involve a change in uses.
In applying for the amendment in 2009, Behringer Harvard expressly stated that the "amendment is intended to address certain 'cleanup' items in the existing PUD" and that the "amendment does not introduce new or additional density or uses to the existing PUD, or otherwise substantively change the existing PUD." It stated further that "this treatment reflects existing development and the contemplated completion of the Lodge at Cordillera," and that the "amendment will not have any effect on adjacent properties because it does not change the overall uses or densities currently contemplated in the existing PUD."
There is no way anyone reading that application would suspect that the amendment was changing the Cordillera PUD to authorize the Lodge to be eliminated and replaced by 34 unrelated uses. To the contrary, they would think the opposite — that the proposed amendment would "not substantively change" the PUD and, indeed, that it was intended to facilitate "the contemplated completion of the Lodge at Cordillera," not to eliminate it. There is no way that Behringer Harvard or its buyer can square their claims now with the representations and promises they made in 2009.
Under Colorado law, homeowners are entitled to rely on the zoning rules governing the use of property within their communities. They have the legal right to comment on any proposed change to those rules, and in order to do so, the law requires that they be notified beforehand in plain and unambiguous language of the full impact of any proposed zoning change. The town of Vail recently upheld that important principle; Nordheimer is trying to avoid it.
Allowing Nordheimer to carry out his development based on his "new" and "changed" interpretation of what the 2009 Amendment means would set a dangerous precedent — not only for Cordillera but for all of Eagle County. It would encourage developers to manipulate the process, allowing them to gain approval for their development plans through practices that are neither open nor honest. That cannot be allowed.
Thomas Wilner is a Cordillera homeowner and a lawyer who has been involved in the efforts to preserve the Lodge.
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