Vail to begin annual enforcement of deed restriction violations
Of town's 1,033 deed restrictions, 47 were non-compliant in 2023
Ben Roof/For the Vail Daily
As the volume of employee housing units increases in Vail, the town continues to crack down on violators through its annual compliance process.
In 2023, the town had a total of 1,033 deed-restricted properties. Of these, 47 properties — 4.5% — were found non-compliant, either with the terms of their recorded deed restrictions or in completing the process. Now, the town is preparing to begin the process of enforcement, which includes issuing summons to appear in the Vail Municipal Court.
“EHU (employee housing unit) compliance is one of the if not the most important of the housing team’s initiatives … We are constantly trying to find ways to be most efficient on the compliance process as well as do whatever we can to keep the integrity of the use of homes and use by the terms of the deed restrictions,” said Missy Johnson, the town of Vail’s housing coordinator, at the Tuesday, April 6, Vail Town Council meeting.
The town’s compliance process begins in November each year when the owners of deed-restricted properties receive a letter and email from the town reminding them to submit the required documentation for compliance verification. In January, a second reminder is sent. All owners are given until Feb. 1 to submit what is required. Property owners who did not submit by the deadline were given until Feb. 29 to pay a $250 fine and submit documentation.
This year, 99.4% of the property owners — representing 1,027 deed-restricted properties —submitted documentation by the Feb. 1 deadline. This submission rate was 4% higher than the 2022 process.
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“It wasn’t very long ago that of the 600, 700 deed-restricted properties we had in the town of Vail, less than 40% even responded to the annual affidavit process,” said Vail Housing Director George Ruther, adding that the department has put in a lot of work to make the process not only efficient but also “very thorough.”
This year, of the 47 non-compliant properties, four never submitted any documentation, 19 submitted some but not all of the required documentation and 24 submitted all that was required but were found to be non-compliant with the terms of their deed restrictions.
Martha Anderson, Vail’s senior housing coordinator, said total noncompliance was up 1.5% from 2022.
“The previous year we had 3%,” Anderson said. “However, from year to year, we actually grew 85 deed-restrictions or 9% growth.”
While deed restrictions may vary slightly in specific terms, the most prevalent is that the units must be occupied by someone working a minimum of 30 hours per week, on an annualized basis, at a business located within Eagle County.
On Tuesday, the housing department reported it was ready to move forward with enforcement action against the 47 non-compliant units.
“We do quite a lot of outreach; we have a lot of phone calls, emails, there’s a lot of communication going on with all of these non-compliant residents. At this point, we are ready to transition our compliance efforts to more of an enforcement process with the police department. That is our next step,” Anderson said.
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It was through this process for 2022 that the town took action against the owners of Altus Vail when 15 of its units were found non-compliant. Ultimately, the town filed an action in the Eagle County District Court, but the two parties were able to reach an agreement out of court. In November 2023, the town and Altus owners reached a $1 million settlement over the deed restriction violations claimed in its court filing.
At the time of the settlement, all of the Altus units were reported to be back in compliance with their deed restrictions. On the non-compliance list for 2023, 13 Altus Vail units were on the town’s non-compliant list this year, which was questioned on Tuesday.
“Anyone on this list, we are taking a look backward for all of 2023,” Johnson said. “So, in some cases, especially for that one (Altus), there are a number of them that they currently have the correct renters in.”
Johnson noted that of the 13 non-compliant units at Altus, it was a combination of residents not working enough or violations that occurred early in 2023.
This year, 38% of the owners were repeat offenders. On Tuesday, the Town Council discussed whether it could “ratchet up the enforcement” for this group, as Council member Reid Phillips put it.
“That’s a significant amount of housing stock that is not being used within the rules of the EHU. That’s where my concern is,” Phillips added.
The council skimmed over a few potential options ranging from revisiting the fee schedule to some form of “public shaming” as other municipalities like Aspen have in the past.
Currently, the penalties for these violations are up to the discretion of the municipal court.
“It’s up to the court in terms of penalties assessed,” said Town Manager Russ Forrest. “I think we’ve worked through a process with the court and the prosecutor to be clear about repeat offenders and to aggressively pursue penalties.”
Town Attorney Matt Mire said the municipal court has a range of penalties, which is “up to around $2,300 per day that the violation is present” or up to 180 days in jail — both of which are “up to the court to impose.”
In the future, Mire suggested that the council could revisit its penalties but that it might be on a case-by-case basis.
Council member Dave Chapin suggested that “maybe it’s time for some public shaming” for the “most egregious” of violations.
He added that the outreach from the housing department is “above and beyond.”
As such, he suggested that it could be time for a policy change — where legally applicable — toward “stricter enforcement.”
There was also some debate among council members about how the compliance and enforcement could shift and change as deed-restricted properties sell throughout the year. However, the housing department reiterated the importance of taking a hard stance when it comes to the annual process.
“The integrity of the enforcement process requires us to take that 100% zero-tolerance policy and ensure the integrity of these deed restrictions remains,” Ruther said.
