The Cost of Condemnation
Inspired by the 2023 Budget Preview on August 16th: For context watch the video replay (and get to the nerds-only zone 30 minutes into the meeting) and listen to Vail’s town council member Barry Davis ask about the multi-million dollar gorilla not in the budget.
Do you have an opinion on this topic? Share it with the decision makers - The Vail Town Council:
Nobody knows…
Most of the official conversations on this topic have taken place in executive sessions behind closed doors since the Vail Town Council voted (4 to 3) to condemn East Vail Workforce Housing on May 3rd. A municipal government exercising their right of eminent domain to seize private property to prevent the construction of affordable housing, to protect state managed wildlife (bighorn sheep) which live on adjacent federal land (US Forest Service), is unprecedented in Colorado - and possibly anywhere else in the United States ever. The decision to condemn is made - now we will learn what it will cost us, and how we will pay for it..
The Price Vail Pays
Based on the Town of Vail's 2023 Budget preview discussion on August 16th - it appears as though the 4 Town Council members voting for condemnation are preparing to make an offer to Vail Resorts to purchase the property on September 6th. In the event Broomfield accepts the offer, the Town of Vail will need to cut a check for that amount. If the offer is rejected, a legal process will follow that will result in a settlement or a judgment for an amount that may, or may not, be substantially different than the offer.
How much will condemnation cost?
No one knows. The Town of Vail will get an appraisal and then make Broomfield an offer based on that appraisal. For legal and strategic reasons that number is a secret, and will be decided on in executive session behind closed doors. Once the offer letter is sent to VR, it should be made public within a day or so. If Broomfield takes that action, the Town of Vail has to pay up - the money must be on hand and ready to go.
Broomfield will get their own appraisal - or maybe already has one. It appears that the Town of Vail’s emergency ordinance issued on 8/2/22 to suspend all permits is not related to Broomfield trying to get soil tested for their appraisal, as they wouldn’t be able to evaluate the terms of an offer without an appraisal.
Whatever VR’s appraisal comes in at, it might not even matter how much the land is worth in dollars. Vail Mountain needs housing for staff in order to run a ski resort now and forever. Land zoned to build high density housing in Vail is non-existent - and therefore priceless. Rezoning is not something that anyone can trust the town will do within any predictable timeframe; changing zoning is a lengthy and contentious process even on our own town owned land, even to match the density that already exists.
If Broomfield does not accept the offer - then there will be a legal battle that may, or may not, result in a judge, a jury, or a combination of the two determining what price the Town of Vail must pay to seize the land. That price is suppose to be the ‘fair market value’.
What is ‘Fair Market Value’?
No one knows. The 23 acre parcel was likely originally intended for primary/secondary homes - like everything else outside of the original village. Buildable primary/secondary land in Vail can go for million(s) per acre. 5ish acres of the parcel was rezoned for high density housing, while the remaining 17 acres would be preserved - that was the deal struck to build Booth Heights. Now that the Town of Vail is condemning the land that was relatively recently rezoned - would the fair market value be the 23 acres of mansion land? Or 5 acres of high density, and 17 acres of natural preservation area? We will probably find out - at some point.
How will we pay for an $xx,xxx,xxx purchase?
No one knows. The Town of Vail didn’t plan on making this purchase - so we’ll have to pull that money out of our pockets - and away from the other projects on our to do list. That’s why the August 16th 2023 Budget Preview discussion was so interesting. Read the deck and you would find nothing that really stands out about this year or next - a casual reader would just breeze past page 13. However - watch the video replay and (30 minutes in) observe the temperature in the room rise as the $90 million dollar enterprise that is the Town of Vail tries to tactfully and transparently discuss how to account for the single largest purchase the Town has ever made - that does not appear in the budget - in the face of a current housing crisis and a looming possible recession.
Everybody Knows that Nobody Knows
Town of Vail staff cannot have an opinion on this matter. Staff executes the decisions made by the Council, and they must remain objective. That’s how the system works. The budget setting process must be transparent and public. The Town needs to get feedback from council on budget priorities for 2023. To do that they have to provide information on how much money we have to spend. No one can publicly disclose what they think the cost of condemnation might be, and no one knows what the actual cost of condemnation will be.
This is our reality: A weird poker faced dance around all of the projects we want/need to accomplish - and which of those projects, and how many, might be the proverbial sacrificial sheep in service of the the actual sheep.
Timber Ridge Redevelopment
Civic Center/Dobson Redevelopment
Children’s Garden of Learning Long-term Permanent Location
Nature Center
Outcomes from the Ford Park Master Plan update
West Vail Master Plan Implementation
West Middle Creek Residential Housing
Development and purchase of East CDOT Parcel
Other Future Housing Opportunities
Four town council people will decide what we will sacrifice and how much. It only takes four to decide…
the price is too high
will we sacrifice more housing to stop the housing
we will sacrifice human kid care in favor of sheep nannies and sheep kids
we will sacrifice the non-sheep environment for the sheep environment
there is nothing we aren’t willing sacrifice
the people should choose - somehow?
Is there no other way?
Can’t we make a deal to build housing elsewhere? Theoretically yes; practically no.
Deals require a belief that the other side will deliver on their promise. Humans call this phenomenon trust. Lawyers might call it a binding agreement. In a biblical sense it would need to be a deal inked in the blood of both houses - even then it probably wouldn’t be enough.
Of the four council members in favor of condemnation, 3 are term limited and one will have run to keep their seat in November 2023. The composition of the council will change one way or another. There is both the threat, and the hope, on both sides that any deal made with this council might be subject to change by the next. Just as this council reversed the decision of the last. Continuity of government changes with councils.
A new Town Manager is also on the verge of being announced - yet another variable. A Destination Stewardship plan is in the process of creation - in which the term “collaboration with Vail Resorts” appears frequently without any specific definition of what that means. ‘Take action on housing development’ is another thing that may, or may not, be a guiding principal of that effort. We shall see how much weight the vision holds - when we see how the vision is executed.
Based on the council’s closing statements on 8/2/22, the Residences at Main Vail were built not so much to demonstrate our commitment to alleviating the housing crisis, but our commitment to protecting sheep. That project was nearly killed by the Design Review Board and only saved on appeal to the previous council which voted 5-2 to overturn it on 8/3/2021. If there was some sort of understanding with Vail Resorts that Booth Heights would not be built because Residences at Main Vail was, that doesn’t appear to have been publicly stated anywhere.
The thing about closed doors is that no one outside knows what is said in the room where it happens. Now no one can be trusted.
Telluride’s Path to Condemnation
After a 10 year legal battle that ended in the Colorado Supreme Court, the town of Telluride condemned the Valley Floor to prevent ‘market rate’ development - which would have been what most people would describe as luxury, including a golf course, gondola connection, and monster mansions. The Telluride situation has some parallels and many differences to Vail’s present situation.
Telluride’s voters approved a funding mechanism to pay for the condemnation in 1993 and had years to cache 20% of local revenue to position themselves to make the purchase if they needed to. In 2005 Telluride’s Town Council presented the community with a settlement which would have preserved 90% of the land as open space. In 2006 Telluride held a special election in which voters decided to move ahead with condemnation in order to protect 100% of the parcel.
Over the course of 14 years Telluride had amassed $25 million dollars with voter-authorization, and raised an additional $8 million in private donations to bank roll condemnation - for a total of $33 million dollars. The Town of Telluride had appraised the land at $26 million, the developer had an appraisal for $50 million. A jury decided the land was worth $50 million, and a judge ordered the town to pay up within 90 days or forfeit. The Town of Telluride couldn’t pay it, they didn’t have it. A remarkable grass roots community led effort raised the missing $17 million in three months. The Valley Floor is now permanently protected - and appears to be a source of community pride and cohesion that is celebrated today.
Town of Vail’s Path to Condemnation
The Town of Vail does not have any of the advantages that Telluride had in their condemnation process.
The community of Telluride had organizers eyeing protecting the The Valley Floor as early as the 1970’s. The Valley Floor is a large swath of publicly accessible open space which provides the town with opportunities to connect with the natural world and each other. Vail’s Booth Heights land will soon be permanently fenced off from the 8 lanes of traffic it borders. Telluride went to their voters to ask for a mandate (once) and funding (3 times). Telluride had a measurable majority of community support and well over a decade to prepare. Vail does not have that.
No Vail Voter Mandate for Condemnation
The community will never know if Vail voters would have chosen to condemn the property - the question was never explicitly asked.
As is the case with any attainable housing development ever proposed in Vail, there was a faction of the community that was opposed. Even with some opposition, the project was approved by all of the requisite boards, appeals to the boards decisions were upheld by (the previous) Town Council (by a slim majority 4-3), and Vail Resorts and the Town of Vail together defended those decisions in court - and won.
Looking back on the 2021 Town Council election that set the table for condemnation - you wouldn’t really know East Vail housing or bighorn sheep were a central issue unless you had been following Vail politics in the years preceding it. The most accessible public information on the candidates is from the Vail Daily’s In Their Own Words series - only two candidates actually used the words “Booth Heights” and they handily lost. No one mentioned the word ‘sheep’.
The 2021 election turned out 41% of Vail voters - likely many of which were first timers since that’s the the highest turn out since we started keeping track of that in 1985 and the first time mail in ballots were used - making it easier for people to cast their vote. No one bothers to do exit polling on small town elections with less than 2,000 people turning out, so there is no way to know why people voted the way they did. Of the four council members that did win - their profile lead lines might provide some indication of voter priorities at the time…but that’s not science that’s just conjecture.
1st - Seibert: Longtime resident focused on housing, quality of life
2nd - Coggin: Incumbent wants to continue to create more housing opportunities for residents
3rd - Davis: Longtime resident says council needs to “pull together” after a decision’s made
4th - Staufer: Lifelong resident wants Vail to reclaim leadership on environment
We now know that election did reverse the decision on housing in East Vail. Four members of the Vail Town Council - a slim majority on a 7 member council - voted to condemn East Vail Workforce Housing on May 3rd. Public comment was taken in person and via letters. The overwhelming majority urged the council not to condemn the property. The minority with the overwhelming seniority urged the council to condemn. The council voted 4-3 to condemn.
No Vail Voter Approved Funding for Condemnation
Those 4 council members will now decide how much Town of Vail money they will spend on condemnation. Unlike Telluride which had more than a decade to squirrel away a nut to cover the costs - Vail will have to conjure the money on hand; and roll the dice on if it will be enough. Most importantly, this council will have to decide what to pawn off to pay for the gamble.
On May 3rd, Vail's Town Council took exhaustive public comment prior to making their decision to condemn the property in East Vail. Some of the most impactful comments were from wildlife biologists (on both sides) with extensive experience in managing sheep and habitat for healthy populations. Upon consideration of these comments and others, 4 council members voted for condemnation, 3 did not. There will be no such opportunity for the public to hear input from experts with a background in conservation funding on how much to spend on which actions to protect sheep.
The first time the public will hear the number the Vail Town Council comes up with will likely be the same day that Vail Resorts hears it. Potentially the single largest check the Town of Vail has ever written will already be on the table before the taxpayers know the dollar amount, or what will be cut out of our future to fund it. The public will have to trust that the 4 council members have sought and received input from conservation funding experts behind closed doors in executive session, or on their own time.
There are very few organizations and individuals that make decisions about how to allocate multiple millions of dollars of funding for wild sheep conservation. It would be interesting to find some and pose the question:
"In light of all of the information provided on development in East Vail - if you had $xx,xxx,xxx of taxpayer money to ensure the survival of bighorn sheep in perpetuity - how would your organization spend it? Would it be on condemnation? Would it be only on condemnation?"
Expert Opinions to Seek
Conservation on the public stage should not be controversial or covert. It is simply too important. Vail can make more transparent and informed decisions about how to spend conservation dollars on sheep by seeking expert advice - and sharing it with the public. Feeling our agency in the decision making process is what will be required to recruit community buy-in. We need to believe this action is very well thought out.
Colorado Parks and Wildlife
Colorado Parks and Wildlife is one of those multi million dollar organizations. Of the total $237 million spent by Colorado Parks and Wildlife in the 2020-21 fiscal year, on all of the parks, and all of the wildlife, in all of Colorado, 13% was on habitat management or approximately $30 million. It is unclear if CPW can/will/should make a recommendation to council on how much taxpayer money should be spent on seizing the land, and how much more the Town of Vail should contribute to ongoing habitat maintenance, disease monitoring and testing to safeguard our investment in sheep in perpetuity…which is a very very long time.
CPW are exceptional stewards of the public trust, with a long proven track record of managing healthy populations and also cultivating public buy-in. CPW is also a neutral party and their impartiality is critical to their effectiveness. It may not be in the greater public or conservation interest for them to provide a recommendation in the funding realm. CPW is also prohibited from exercising eminent domain actions by the State of Colorado - which further complicates an already complicated situation on providing input on an eminent domain action.
"CPW is a referral agency that functions as a resource to municipal governments among many other entities. As such, we do not take sides, we present facts and provide information to decision makers as it relates to the wildlife resource, so that decision makers might be able to operate with the best available information". - Devin Duval, District Wildlife Manager – Vail District Excerpt from Public Comment Letter to the Vail Town Council Dated May 3rd, 2022
Wild Sheep Foundation
The total programming budget of the Wild Sheep Foundation for 2021-2022 was $6 million. They raise private funding for wild sheep conservation, and provide grants to projects to protect them throughout North America.
The Rocky Mountain Bighorn Society
The Rocky Mountain Bighorn Society is the most local organization and may be the most intimately connected to our S02 herd in East Vail. They have raised money and provided funding for wild sheep conservation between $300,000 to $500,000 according to their website.
Alternate Funding Sources
Finding money for sheep is hard; the organizations listed above have been doing it for decades - only one of them is moving tens of millions. None are investing multiple millions in 5 acres.
There are websites like The Bighorn Sheep Initiative popping up that appear to be laying the groundwork for private donations to help pay for the land purchase and management of our S02 sheep through the Vail (or Gore Range) Bighorn Sheep Conservation Fund. On the same page there are letter writing campaigns to leverage public voices in opposition to Vail for being evil. It’s awkward to see these worlds collide - knowing that both sides are still going to need each other when this is all over.
Hunters, anglers, and shooters provide the overwhelming majority of funding for the North American Model of Conservation; the most successful system of protecting, restoring, and maintaining land, water, and wildlife in the modern world. Hunters are a reliable and action oriented demographic that will put pen to checkbook, and finger to keyboard for conservation - but the well is not bottomless. The success of one small donation conservation funding effort often comes at the expense of another.
Large corporate donations make a large impact in charitable funding for social and environmental projects on a scale that is difficult to match; and likely impossible to do without. Epic millions enable communities to reduce carbon emissions, waste reduction, water recapture, scholarships, and even conservation and habitat improvement. Yes - even right here in Eagle County.
The non-Monetary Cost of Condemnation
The Town of Vail funded an absolutely beautiful and factual film about the Big Horn Sheep called Home for the Wild. Comments are turned off on YouTube - but some of the response to the film was that it was sheep propaganda funded by NIMBY’s. From a conservation perspective, there could be no more terrifying a response. It would be a mistake to discount those voices - those voices are the ones most in need of convincing that sheep conservation is worthwhile.
Let us not forget Blackfish - the 2013 documentary about orcas being mistreated at Seaworld. Seaworld took a hit following the release of the film; today they’re doing better than ever. Why? Because people have an instinctual and irrepressible desire to be closer to wildlife - and the vast majority don’t have the knowledge or the resources to do it any other way than getting in a car, parking in a parking lot, and paying a corporation for the experience. Lack of access, diversity, and inclusion in the public sector creates the demand that fuels the private sector. D.E.I. has the added value of being morally correct.
The market rate value of the last two new luxury housing constructions in Booth Falls might be on par with the cost of condemnation. Their money is obviously tied up in real estate, and it seems unlikely that a neighbor or two would give up their houses for the sheep. That is the non-monetary cost of condemnation - the loss of faith in the idea that conservation requires an equitable sacrifice from all of us, for all of us. We can always make more money, but recouping a loss of faith is a much more difficult recovery. There is no funding effort to date to Restore the Faith.
No Mercy for the Condemned - or the Condemners
Vail Resorts will be hated by a portion of the population no matter what they do. This council will be hated by portion of the population no matter what they do. The next council will be hated by portion of the population no matter what they do - if they do anything at all.
Vail locals are still getting squeezed harder than ever - not just by a critical housing and staffing shortage, but also inflation, and subsequently a mental health crisis. No new attainable housing developments have made progress since condemnation began. West Middle Creek which the council stated on May 13th “The rezoning process is to begin immediately and will be completed by September 1, 2022.” The next Town Council Meeting is September 6th. Rezoning has once again been tabled in PEC - this time to September 12th at the request of the applicant - which is the Town of Vail.
The customer experience is still going to continue to suffer. This winter doesn’t appear to be shaping up to be a situation where locals will be making more turns, turning more tables, or teaching more people how to ski. Lodging bookings are soft so it appears that rather than attract and retain more talent to provide our world class experience, we’ll be attracting less tourists to fuel our tourism based economy. The lack of support will trickle down and put pressure on those with the least capacity to handle it.
No Salvation for the Sheep
Will the herd die? Maybe.
Maybe the presence of affordable housing residents does kill them. Maybe disease from interaction with domestic sheep on nearby grazing allotments will kill them all without any affordable housing development. Maybe a hard winter combined with existing development puts them over the edge. Maybe a wildfire takes us all out together.
Maybe our endemic bighorns are alive today because a group of out of towners kicked the local sheep ranchers out of their habitat to build a ski town 60 years ago. Maybe the sheep die in the next 60 years because the ski town kicked the local ski bums out of their habitat for some out of towners.
Maybe they will be just fine, they’ve made it this far.
If the sheep do die, it will be because of us. All of us. It will be our fault for not building enough housing for locals. For building too much housing for people with two houses. For our convenient highways to get to and from the houses. For feeding any of the people in the houses domestic sheep grazed on public land. For being skiers, trying to live that ski life out of conveniently located ski houses. For being unwilling to share the landscape equitably.
None of us would be blameless. None of us would be exonerated.
However condemnation shakes out, someone is going to think they won, but we’re all losing something. A price will be paid, one way or another. More Vail people should be talking about what the cost of condemnation is. It’s going to be expensive, and it’s not all about the money.
Disclaimer: Condemnation is very complicated case….lotta ins, lotta outs, lotta what-have-yous. The VailSticky is not a news organization. A self imposed Sticky expectation is to ‘make bold claims, provide reliable references’ to avoid contributing to the spread of misinformation. Information on this page may change - or be pulled entirely at any time. That said, there is a palpable lack of reliable public information surrounding this topic. Somebody might as well to take a crack at explaining what we think we know. You will find no special insider information or knowledge beyond what is available to any average citizen watching the process unfold, listening in on local chatter, and asking questions around town. Hoping to inspire thought, conversation, and engagement from local stakeholders…and also inspire a more reputable organization (with people that get paid to do this kind of thing) to provide insight and fact checking.
References:
2023 Budget Preview (Video Recording Link to FB)
5/3/2022 Town Council Meeting: Condemnation Vote & Public Comment (Video Recording on Facebook)
Stickies on Vail Town Council Agenda Breakdowns (which contain links to official agendas, memos, reference documents, etc.)
