The Avon Town Council is evaluating the benefit of terminating the “Benchmark Covenants” (i.e. the Declaration of Protective Covenants for Benchmark at Beaver Creek, originally recorded on February 27, 1974, as amended and restated). This webpage provides information concerning the Benchmark Covenants, the process to amend or terminate the Benchmark Covenants, and the proposed process for the Avon Town Council to receive input and consider taking action as the Town.
The Benchmark Covenants were adopted in 1974 before the incorporation of the Town of Avon in 1978 as part of the original Benchmark development. The Benchmark Covenants encumber a substantial portion of the Town’s municipal boundaries. The Benchmark Covenants allow the owners of a majority of the Benchmark at Beaver Creek Subdivision property to appoint a five person “Landowners Committee.” The Landowners Committee has various powers, including appointment of a five-member Planning and Architectural Control Committee (“PACC”). The PACC has broad approval authority over many aspects of development. The original Benchmark Covenants were typical of comprehensive development covenants for a large mixed-use planned development whereby the developer sought to retain control and oversight of development in the early stages of the project.
Since Avon’s incorporation, the Town of Avon has adopted a Home Rule Charter and Avon Municipal Code (the “Town Code”). Title 7 of the Town Code sets forth the Avon’s Development Code which includes a comprehensive and cohesive set of modern land use, zoning, design and landscaping regulations applicable to all of Avon, including the Benchmark at Beaver Creek Subdivision. The Benchmark Covenants were amended and restated over time to acknowledge the Town of Avon’s land use regulations and the establishment of an Avon Planning and Zoning Commission with redundant architectural review duties. The last amendment to the Benchmark Covenants in 1990 defers to the Avon Planning and Zoning Commission by stating that any plans submitted to and approved by the Avon Planning and Zoning Commission do not need to be submitted to the PACC. The 1990 Amendment to the Benchmark Covenants further states that approval by the Avon Planning and Zoning Commission shall be deemed to be approval of the PACC within 10 days unless the PACC provides notice that the property owner must submit plans to the PACC for its review and approval.
Since adoption of the 1990 Amendment to the Benchmark Covenants, there is no record of any activity by the PACC or the Landowners Committee and all approvals for development have occurred under the review authority and regulations of the Town of Avon. The Benchmark Covenants include provisions which are both redundant and inconsistent with the regulations in the Avon Development Code and Avon building codes. A comprehensive comparison of the Benchmark Covenants to the Avon Development Code and other regulations can be found below.
After review of the Benchmark Covenants and consideration of comments received, the Avon Town Council believes that consideration of terminating the Benchmark Covenants is warranted because the Benchmark Covenants are inactive, outdated, redundant to Avon’s land use regulations and Avon’s Planning and Zoning Commission, and create an unnecessary cloud and encumbrance on property title for property owners in the Benchmark at Beaver Creek Subdivision. However, the Avon Town Council will not make a final decision until conducting a public hearing as described below.
PROCESS TO AMEND BENCHMARK COVENANTS
The Benchmark Covenants may be terminated by either (i) the written consent of the owners of at least 51% of the land within the Benchmark Subdivision, and/or (ii) the written approval of a 4/5ths majority vote of a Landowners Committee. The Landowners Committee is appointed by the owners of 51% of the land in the Benchmark at Beaver Creek Subdivision. The Town of Avon owns approximately 55% of the land in the Benchmark at Beaver Creek Subdivision; therefore, the Town of Avon, through the Avon Town Council, effectively controls the decision to terminate the Benchmark Covenants and the decision to select and appoint five persons to the Landowners Committee. However, it is very important to the Avon Town Council to conduct an open public process to receive and consider all input from interested property owners prior to taking any action on the Benchmark Covenants.
At its regular meeting on February 28, 2017, the Town Council appointed five property owners in the Benchmark at Beaver Creek Subdivision to the Landowner's Committee. The five members are Gil Avellar, Megan Burch, Jennie Fancher, Doug Jimenez and Ruthie Stanley. Mayor Jennie Fancher was appointed to represent the Town of Avon as a property owner on the Landowners Committee.
REMAINING TOWN COUNCIL REVIEW PROCESS
Date TBD– Avon Town Council will consider the following actions: (1) voting as a property owner in the Benchmark Subdivision to terminate the Benchmark Covenants; and (2) providing direction to any representatives of the Town of Avon on the Landowners Committee with regard to voting as a member of the Landowners Committee to terminate the Benchmark Covenants. The meeting will be held at 5:00 p.m., or as soon thereafter as possible, at the Avon Town Hall, located at One Lake Street, Avon, Colorado.
UPDATE: On March 14, 2017, the Town Council was asked to (1) take action to vote to terminate the Benchmark at Beaver Creek Protective Covenants and (2) provide direction to Mayor Jennie Fancher, the Town’s representative on the Landowner’s Committee, with regard to voting as a member of the Landowner’s Committee to terminate the Benchmark Covenants.
The Town Council elected to table this item because several residents have notified the Town that they have not received the notice and ballot that provide property owners with information concerning the Benchmark Covenants, the process to amend or terminate the Benchmark Covenants, and the proposed process for the Town Council to receive input and consider taking action as the Town. Town staff was directed to look into why some property owners did not receive the notice and ballot, to correct the oversight and to bring the matter back to Council for action once resolved.
DEADLINE TO SUBMIT BALLOTS: 5:00 p.m. March 15, 2017
MEETING OF LANDOWNERS COMMITTEE: Time, date and place to be determined once the Landowners Committee is appointed.
ADDITIONAL INFORMATION: The original Benchmark Covenants, including all amendments and restatements, Town staff review materials and other information may be obtained below or from the Town Clerk, at the Avon Town Hall, located at One Lake Street, Avon, Colorado, during normal business hours.
To view the Benchmark Covenants, please click HERE.
Benchmark Protective Covenants – Comparison with Avon Regulations