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HomeMy WebLinkAboutNOTICE OF APPEAL AND PROTEST 246 Virginia DrGregg H.Coffman,P C.ATTORNEY AT LAW 501 SAINT VRAIN LANE,SUITE 200 ESTES PARK,COLORADO 80517 R E C E VE D GREGG@ESTESLAWYER.NET (970)586-5566 VOICE (970)586-5995 FAX June 16,2020 ]J4 1 7 U2O ADMINISTRATIVE SERVICES Town of Estes Park BY:TIME: Attn:Town Clerk Attn:Town Board Attn:Mayor Wendy Koenig Attn:Community Development Director,Randy Hunt Hand Delivered Estes Park,CO $0517 Re:246 Virginia Drive Vacation Rental Registration RIVER ROCK COTTAGES -GREEN GABLES (Hereinafter referred to as the “Property.” NOTICE OF APPEAL AND PROTEST COMES NOW the following Property Owner,Sun365,Inc.,by Gregg H.Coffman, attorney,and in Appeal of and Protest to the determination of the Town Clerk,states as follows: 1.The Property Owner wishes to appeal the determination of the Town Clerk,with respect to the matter described herein to the Mayor and Town Board,and/or the Community Development Department,as appropriate. 2.The Property Owners name and address is as follows: Sun365,Inc. 311 Virginia Drive Estes Park,CO 80517 3.The date of the letter transmitting the determination herein complained of are as follows: Dated:April 6,2020 RE:246 Virginia Drive Vacation Rental Registration (Copy of Letter attached as Exhibit A) Page 1f 6 4.The issue involved is the renewal of a Vacation Home Registration for the property located at 246 Virginia Drive,Estes Park,CO 80517.This Appeal is timely since the offices of the TownofEstesParkwereclosedto“in person access”from mid March to May 18,2020 due to a disaster declaration in regard to the Coronavirus Pandemic.This Appeal is submitted within thirty (30)days of the “limited”reopening of the Town of Estes Park.Appeals are to be filed in person with the Town Clerk and the Community Development Department.In person filing was not possible for so long as the Town of Estes Park was closed to the public. 5.The following is an itemized schedule of the determinations with which the Property Owner does not agree: a.The Property Owner takes exception to the reference to Section 5.1.B.1 .a.(5)of the EVDC (specifically the underlined portion contained in Exhibit A)because the underlined passage refers to transfer of a vacation home registration from one property to another property.This Appeal is in regard to one property located at 246 Virginia Drive, Estes Park,CO,which held Vacation Home Registration No.3016 during calendar year 2019,and involves the renewal of the same registration,for the same property,for 2020. b.The Property Owner takes exception to the reference to Section 5.1 .b.1.a.(13).The reasoning for this exception is set forth in Section 7,Law and Analysis,below. 6.Statement of facts. a.The Property held Vacation Home Registration No 3016 during calendar year 2019.In the 2019 Registration,the owners name was identified as Justin Dubois,and the Property Manager was identified as River Rock Cottages.River Rock Cottages is a d/b/a name for Sun365,Inc.The Property was transferred from Dubois to Sun365,Inc.on July 1,2019. Sun365,Inc.is owned entirely by Terry and Carolyn Bogener,and is a brother/sister organization to River Rock Cottages.In fact,River Rock Cottages and Sun365,Inc.are one in the same organization,both under the exclusive control of Bogener.In essence, prior to the transfer,the Property was owned by Dubois and managed by River Rock Cottages.After the transfer,the property was owned AND managed by River Rock Cottages. b.The stated purpose,repeated numerous times throughout the Vacation Home Regulations and licensing Ordinance,is to ensure that both the property owner and manager be aware of the Vacation Home Regulations and assume responsibility for compliance.In this case,the transfer from Debois to Sun365 did not alter the responsible manager and resulted in ownership and management being identical.Sun365 dba River Rock Cottages had signed the application for Vacation Home Registration No.3016 for2019andwasthereforeconsistentlyresponsibleforcompliancewiththeVacationHomeRegulations.The purpose of the Ordinance is therefore fully protected,and this issue does not impair the purpose or intent of the Ordinance. Page 2 of 6 c.The Town of Estes Park was undeniably aware of the transfer of ownership in two respects: 1)Town of Estes Park Utility Billing dated 8/16/2019 clearly identifies the property as 246 Virginia Drive,Estes Park,CO and clearly reflects Electric and Water service billed to Sun365,Inc.as of July 1,2019.See Exhibit B. ii)A Town of Estes Park Roofing Application/Permit was issued to “owner:Terry Bogener on July 22,2019 for the Job Address 246 Virginia Drive.See Exhibit C. d.Sections 5.1 .b.1.a.(1-14)of the EVDC contain the “rules”or “regulations”for Vacation Homes.Section 5.1 .b.1.a.(15)specifically addresses “violations”of any of the rules or regulations for Vacation Homes and directs that enforcement actions be governed by Section 12.4.A.1.This provision allows the suspension or withholding of registration “until the violation is resolved.”This section further requires (Section 12.7 Enforcement) written notice be given in person or by Certified U.S.Mail identifying the violation and allowing not less than 15 days to cure the violation.In addition,Section 15 only allows the decision-making authority to deny or withhold the renewal until a violation is corrected in accordance with Section 12.4.A.1.Enforcement provisions under Section 12 are found in Section 12.7,and none of these provisions are referenced;nor is there even an appearance of compliance. e.To this date,none of the parties involved (Dubois,Sun365,River Rock Cottages or Bogener)have received ANY notice alleging ANY violation of the Vacation Regulations. f.The Town Vacation Home Registration clearly states in a red block warning,that failing to submit application for renewal in a timely fashion results in Forfeiture of registration.This is consistent with Section 5.1 .b.1.11.However,the Registration form itself states “Pkease make any necessary changes on this form and return with your payment.”See Exhibit D. g.With the exception of failure to apply for renewal of a registration by March 31,there is no authority given the Decision Making Authority to impose Revocation or forfeiture of a Vacation Home Registration,without following the appropriate enforcement provisions of Section 12.4,which also implicates the provisions of Section 12.7. h.The issue at hand is the transfer of ownership (not management)of an existing registered vacation home.Section 5.1 .B.1.5 specifically states that “An active registration for a specific vacation home shall be transferable to a different owner in accordance with the procedures in this Code and as established by the Town Clerk’s Office.” 7.Law and Analyses. Page 3 of 6 A.The Town Clerk’s reference to Section 5.1.3.1 .a.(5),specifically the underlined language,is simply not applicable to this matter.There is no attempt to transfer a Registration from one property to another.This matter involves the single property located at 246 Virginia Drive,which did in fact hold a valid Registration during 2019,and the matter at hand relates only to the ownership of this Property. B.Pursuant to Section 5.1 .3.a.an annual operation registration is required for all vacation homes.Sections 1-14 set forth specific rules and requirements for a vacation home registration.Section 15 specifically deals with Violations.Given the clear language and contextofSection5.1 .B.a.,if there were a violation of any of the requirements set forth in Sections 1-14, the Town Clerk would then be obligated to proceed under Section 12.4.A.1.Section 12.4.A.1 must be read in conjunction with Section 12.7 dealing with Enforcement.Neither Sun365 nor River Rock Cottages have been provided a Notice of Violation or opportunity to correct a violation.Rather,the Town Clerk treated the Property as having forfeited its registration,which is equivalent to revocation.Section 12.4.A.1 allows a registration to be withheld until the violation is corrected.However,this section does not allow a registration to be revoked. Revocations are addressed in Section 12.4.A.2,wherein the authority to revoke does exist,but only after notice and hearing.To this date,there has been no opportunity to “cure”the violation;rather,the action taken was “final.”Operating either under Section 12.4.A.1,12.4.A.2 or 12.7,$un365 andlor River Rock Cottages would be entitled to notice,the opportunity to cure the violation,or a hearing;none of these Ordinance provided protections have occurred.The Town is obligated to follow the Ordinance as written,and the actions of the Town Clerk are not consistent with Section 5.1.B.1.a.(15)and must be overturned. C.Section 5.1 .B.1.a.(5)clearly allows for transfer of registration from one property owner to another,so long as the property does not change.This is the exact nature of the matter at hand.This language refers to transfer procedures contained in the Code,and as established by the Town Clerk.The only language in the Code on transfers is Section 5.1 .B.1 .a.(13)which is vague,at best.The specific language is that it is the responsibility of the new owner to “record the transfer.”There is no definite mechanism specified to record the transfer.This leads to two respects that the implementation of this provision is defective: i.If specific procedures have been defined by the Town Clerk,there has been no notice of the required action.While the public may be presumed to know the contents of a published ordinance,unpublished regulations are not acceptable for purposes of enforcement.There is no language on the Registration indicating a process for transfer.Indeed,the language that appears most applicable is: “Also notif’the Clerk’s Office if your business has changed ownership, name,address or phone number.Your current information is listed below. Please make any changes on this form and return with your payment.:” An ordinary person would interpret the Renewal Application as the appropriate vehicle to notify of a change in ownership.If that is not the case,the language set forth on the Town’s own Renewal Application is misleading and defective,since it clearly invites the notation of any changes. Page 4 of 6 ii.If specific procedures have not been defined by the Town Clerk,the language of Section 13 is fatally defective as it does not identify who or what constitutes notice of transfer.In this matter,I submit the Town was absolutely aware of thetransferofownershipduetothechangewiththeutilitybillingandtheissuance of a building permit.This is particularly relevant with the building permit,which isissuedbytheCommunityDevelopmentDepartment,and this entire matter isundertheumbrellaoftheCommunityDevelopmentDepartment.Knowledge to any one department of the Town is imputed to the Town in its entirety.Therefore, the Town knew of the transfer,but yet did not consider it to be worthy of invoking the enforcement provisions.Had the enforcement provisions been invoked,Notice would have been given,and the matter could have been rectifiedduringthecourseof2019.Instead,the Town ignored its knowledge of the change in ownership;allowed an extremely “technical”issue to sit unresolved,and thenimposedaharshpenalty.This is not acceptable behavior for a supposedly benignpublicgoverningentity. D.With the exception of the “Forfeiture”clause for failing to renew,there is nowhere intheVacationRentalCodeallowingtheTownClerktheunilateralauthoritytodeclareaforfeiture(which essentially constitutes a revocation)of a rental registration.Section 5.1 .B.1.a.(1 1)statesthatanactiveregistrationonDecember31shallhavepriorityforrenewal.Since the Town wasawareofthetransferofownership(utilities and building permit),and did not invokeenforcementprovisions,I argue that the Registration for this Property was deemed active onDecember31,and therefore entitled to priority for renewal. E.This vacation home is a critical piece of River Rock Cottages rental business.Revoking or denying a Registration for this property constitutes a deprivation of a substantialbusinessrevenueforRiverRockCottages.Hence,the actions of the Town Clerk constitute anunlawfultakingofproperty.The Constitution of the United States provides that no person shallbedeprivedoflife,liberty or property without due process of law.In this matter,there is aprocessdefinedtoprovide“due process”which was not invoked or utilized prior to denyingRegistration.I therefore submit the denial of renewal constitutes an unconstitutional taking ofpropertyfromSun365andRiverRockCottages. 8.Conclusion. For the foregoing reasons,and each of them,the Property Owner (Sun365,Inc.)andManager(River Rock Cottages)submit that the Application for renewal (Exhibit D)should beapproved,and that the actions of the Town Clerk should be overturned. F Page 5 of 6 Respectfully submitted, Gregg H.Coffman,attorney for Property Owner Sun365,Inc.And River Rock Cottages -,-// L_- GreggH.Cffj,Reg.#196O5 ‘ 501 St Vram Ln No 200 Estes Park,CO 80517 Page 6 of 6