Resolution No. 22, Series of 2022, a resolution of intent to condemn a 23.3-acre property owned by Vail Resorts was approved by the Vail Town Council at its regular business meeting on May 3, 2022. Approval of Resolution No. 22 followed a vote taken by the Vail Town Council at its April 18, 2022 meeting to direct the town attorney to prepare a resolution of intent to condemn the property, legally described as East Vail Workforce Housing, Subdivision, Lot 1, and generally referred to as the Booth Heights land site.

Approval of the resolution has set into motion a series of legal steps for the town to acquire the property pursuant to its powers of eminent domain.

History of Booth Heights Parcel

The 23 acres of vacant land known as the Booth Heights parcel is located in East Vail on the north side of Interstate 70, between the Booth Creek and Pitkin Creek drainages. There is no human development in the immediate vicinity of the parcel. The closest development includes the Pitkin Creek Townhomes to the east, developed and built in the 1990s.  

The town has for many years identified the Booth Heights parcel as a priority to acquire for open space and environmental protection. These purposes for the parcel were identified in the town's 1994 Open Lands Plan and were reiterated in the town’s 2018 update to the Open Lands Plan. 

The Booth Heights parcel is located in critical winter range for bighorn sheep (see page 30), providing south facing slopes which keep snow depths lower and access to forage earlier in the spring and later into the fall and winter. The site is also below the Booth Cliffs, providing an essential escape route that is a specific requirement of bighorn sheep habitat. The sheep frequent the site year around, with ewes and young lambs often seen on the parcel.  

In 2016, the town discovered that the 23-acre Booth Heights parcel, which for decades had been thought to have been owned by the Colorado Department of Transportation (CDOT), was actually owned by Vail Resorts. The town notified Vail Resorts of the discovery and upon confirmation, Vail Resorts paid two years of back taxes to Eagle County totaling approximately $35,000. Vail Resorts then proceeded to seek re-zoning and subdivision of the tract. In 2017, the town approved the subdivision of the 23 acres into an approximately 5-acre parcel which was rezoned to Housing and an approximately 18-acre parcel that was rezoned as Natural Area Preservation.  

In 2018, Vail Resorts entered into an agreement to sell the property to Triumph Development. Triumph would be responsible for getting the development approvals and building all units. In 2019, the town’s Planning and Environment Commission (PEC) approved Triumph’s development application for the 5-acre portion of the Booth Heights parcel. The approval was for 61 residential units, including 49 deed-restricted employee housing units and 12 market rate townhomes. As part of the development application, a robust wildlife mitigation plan was developed. The PEC’s approval of this development application was controversial with the public due to the sheep habitat, and the development approval was challenged by town residents. The PEC approval was upheld by the town council by a 4-3 vote. The town residents then sought judicial review of the development’s approval process. The town and Vail Resorts successfully defended that challenge, with the Eagle County District Court upholding the town’s approval process of the development in October of 2020. 

Although the town approved the development application for the site on the grounds that the proper process had been followed, immediately following this action town staff was directed by the council by a 6-1 vote to see if there were more suitable locations for housing development. Many in the community, including several town council members, had concerns about the housing development’s effect on the local bighorn sheep herd.  

The Booth Heights Alternative Housing Site Initiative, underway in 2020 and 2021, originally launched with participation from the Town of Vail, Vail Resorts and Triumph Development. However, the year-long effort did not achieve its goal due to Vail Resorts’ stated need to dedicate its time and resources to addressing the operational needs and safety concerns of opening Vail Mountain resulting from the global pandemic. 

In early 2022, the town had the Booth Heights parcel appraised and offered Vail Resorts $7.8 million for the property. Vail Resorts did not accept this offer, so in May of 2022 the town council adopted Resolution 22 of 2022 authorizing the use of eminent domain to condemn the Booth Heights land to protect it as open space and preserve it for wildlife habitat.   

The town continued its repeated and concerted efforts to work with Vail Resorts to develop its workforce housing in locations other than Booth Heights, providing equal if not more units with closer access to services and jobs. The town and Vail Resorts exchanged a number of communications in May and June of 2022 (see below) in which the town expressed its desire to acquire the parcel and offered Vail Resorts other sites for its workforce housing project. Opportunities at West Middle Creek, Timber Ridge Village Apartments and the Residences at Main Vail (slated to open in September 2023 with 72 two-bedroom units) were all offered as options. Vail Resorts expressed interest in these other projects, but has insisted on also developing the Booth Heights site. 

In the summer of 2022, Vail Resorts sought a permit from the town to perform preliminary site preparation work. At this point, the town council had already determined that acquisition of the site was necessary for open space and habitat preservation for the bighorn sheep herd. Since invasive work on the property would degrade the habitat, in August 2022, the town council adopted Ordinance 16 of 2022 imposing a temporary moratorium on the issuance of any permits for the site for 90 days. In response, Vail Resorts filed an action against the town. At the expiration of the moratorium in November 2022, Vail Resorts withdrew its permit application. However, in the ensuing condemnation action, Vail Resorts asserted a cross-petition claiming that the stay resulted in the taking of a temporary easement and asked for compensation. 

During the same period, the town obtained a new appraisal on the property and in September 2022 extended an offer above the new appraised value to acquire the Booth Heights property for $12 million. This offer was also rejected by Vail Resorts, and upon that rejection the town filed a petition in condemnation and motion for immediate possession in October 2022. 

On June 30, 2023, the Eagle County District Court granted the town’s motion for immediate possession, ruling that the town had established it was acquiring the property for a public use and purpose and that the town had not acted in bad faith as argued by Vail Resorts. This order also denied Vail Resorts’ cross-petition claims of a temporary taking. 

Concurrent to the condemnation action, ongoing negotiations occurred. In January 2023, the town and Vail Resorts were ordered by the court not to discuss the matter while mediation was ongoing. The parties are now set to go to trial starting on Sept. 5, 2023, and will have the amount of compensation for the Booth Heights property determined by a commission appointed by the court. 

All public documents associated with this action will be available here.

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