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Posted on: February 16, 2017

Pending Sale of the Lodge & Spa

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Update - September 15

Update to Judicial Appeal

Today, the Eagle County District Court entered the Order Affirming the Eagle County Board of County Commissioners' Interpretation of the Cordillera PUD Pursuant to C.R.C.P. 106.  The Boards of the CPOA/CMD will review the Order with legal counsel.  

Order Affirming County's Interpretation


Articles related to the latest ruling.

Vail Daily

Denver Post


Update - August 14

Update to Judicial Appeal

On Friday, the CPOA and CMD filed a Motion for Leave to File Amended Complaint in the litigation currently pending in Eagle County District Court.   This motion arose as a result of recent quotes and representations recently made by CCG in its attempt to redevelop The Lodge.  

This recent evidence from CCG arose only after both the Board of County Commissioners' determination and the close of briefing to the District Court challenging the Commissioners' determination.

In stark contrast to representations and arguments made by Behringer and the County to the Court that CCG intends to provide outpatient treatment, the new evidence from CCG makes clear that CCG intends to actually provide in-patient treatment.  

Behringer and CCG never provided this evidence to either the Commissioners or the Court.  However, this evidence is significant and material to whether or not CCG's proposed use complies with the Cordillera PUD.  Accordingly, the CPOA and CMD filed the Motion seeking leave to file an Amended Complaint to assert a claim for declaratory relief in light of this new evidence.  

Update - July 7

The CPOA/CMD filed its Reply Brief late on Friday in the Eagle County District Court case involving the judicial appeal of the County Commissioners’ determination that CCG’s proposed use of The Lodge is a use-by-right pursuant to the Cordillera PUD.

The judicial appeal pursuant to Rule 106 is now fully briefed and ready for determination by the Court.  There will not be any hearings or oral arguments to the Court.  Rather, the judicial appeal will be determined strictly on the Briefs and the Record previously filed with the Court.  

Here are copies of the Briefs that each party filed with the Court:

1. CPOA/CMD Opening Brief.
2. Bensons Opening Brief.
3. County Amended Answer Brief.
4. Behringer Amended Answer Brief.
5. CPOA/CMD Reply Brief.
6. Bensons Amended Reply Brief.

It is uncertain when the Court will enter an Order deciding the judicial appeal.  However, we anticipate the Order will be issued by the end of the summer.  

Update - June 9

Eagle County and Behringer Harvard recently filed their Answer Briefs in response to the Opening Briefs filed by the CPOA/CMD and the Bensons in the judicial appeal pending in Eagle County District Court.
 
The County Answer Brief (28 pages) and the Behringer Answer Brief (27 pages) both exceed the page limitations set forth in the Colorado Rules of Civil Procedure.  Accordingly, the County and Behringer each filed motions with the Court requesting authorization to exceed the page limitations imposed by the Rules. In contrast, the CPOA/CMD Opening Brief was only 16 pages long and complied with the Rules.  
 
In addition, both the County Answer Brief and the Behringer Answer Brief cite heavily to a federal court action to which the CPOA/CMD were not parties, had no opportunity to participate in, and thus should not be prejudiced by any decisions reached in that case.
 
Accordingly, the CPOA/CMD intend to oppose the County and Behringer’s respective motions for authorization to exceed the page limitations and the CPOA/CMD will request that the Court order the County and Behringer to submit new Answer Briefs in compliance with the Rules.    


Update - April 28

The CPOA and CMD recently submitted their Opening Brief in support of the judicial appeal of the Eagle County Board of County Commissioners’ determination that the operation of an addiction treatment center and residential rehabilitation facility represents a use-by-right on the Lodge and Village Center parcels in Cordillera. The Bensons also filed their Opening Brief in support of a similar judicial appeal.

The County and Behringer Harvard have until June 2 to file Answer Briefs responding to the arguments asserted by the CPOA/CMD and Bensons. The CPOA/CMD and Bensons will then have until June 16 to file Reply Briefs. After that date, the judicial appeal will be fully briefed and ready for determination by the Court. The judicial appeals are pending before Judge Paul R. Dunkelman in Eagle County District Court. It is anticipated that Judge Dunkelman will issue his rulings on the appeals later in the summer.


Update on Pending Sale of Lodge and Spa at Cordillera - March 3
State Court Action (CMD and CPOA): The Eagle County attorneys recently submitted the Record from the County proceedings/hearings to the Eagle County District Court for use in the Rule 106 appeal filed by both the CPOA/CMD and the Bensons. In light of the filing of the Record, the Court set forth the following briefing schedule by stipulation of the parties: (1) Opening Briefs must be filed by the CPOA/CMD and the Bensons by April 21, 2017; (2) Response Briefs are due by June 2, 2017; and (3) the CPOA/CMD and Bensons will then have until June 16, 2017 to file Reply Briefs. We will, of course, provide copies of all briefs once they are filed with the Eagle County District Court.
 

Federal Class Action (Property Owner Group): Following a lengthy hearing on February 16, the District Judge in Federal Court in Denver denied the property owner group’s motion for a preliminary injunction to stop Behringer Harvard from closing on its contract to sell the Lodge and Spa at Cordillera to the Concerted Care Group. The judge found that the passing of title from Behringer Harvard to the Concerted Care Group does not by itself cause an irreparable injury that would justify the entry of a preliminary injunction. The property owner group nonetheless intends to continue to pursue their challenges aggressively and remains confident of ultimately prevailing on the merits of their claims in Federal Court.


Update on Pending Sale of Lodge and Spa at Cordillera- January 19, 2017
As you are likely aware, there are currently three court cases pending with regards to Behringer Harvard and Concerted Care Group’s proposed uses of the Lodge and Village Center parcels.  Here is an update on the status of each of the three cases:
 
1. The CPOA/CMD Judicial Appeal to the Eagle County District Court: The CPOA/CMD exercised their rights under Rule 106  to pursue a judicial appeal by filing a  Complaint in Eagle County District Court appealing the County Commissioners decision to affirm the Director’s interpretation that Behringer Harvard and Concerted Care Group’s proposed uses of the Lodge and Village Center parcels represented a permitted use under the Cordillera PUD.  The County filed its  Answer to the CPOA/CMD Complaint earlier this week.
2. The Benson Judicial Appeal to the Eagle County District Court: In addition, Barbara and Jack Benson, Cordillera homeowners, filed a separate and distinct Complaint from the CPO/CMD complaint in Eagle County District Court asserting similar claims against the County challenging the County Commissioners’ affirmation of the Director’s interpretation.  The County filed its   Answer to the Benson Complaint earlier this week.
3. The Class Action Lawsuit in Federal District Court: Certain Cordillera owners filed a class action lawsuit against Behringer Harvard and Concerted Care Group in the United States District Court in Denver.  The plaintiffs in the class action lawsuit filed a Motion for Preliminary Injunction earlier this week. The CPOA and CMD are not parties to this class action lawsuit.  We nonetheless wanted to make Cordillera owners aware of its status.
 
In addition, both CPOA/CMD and Benson Judicial Appeals are pending in Eagle County District Court.  Therefore, a Motion to consolidate the two cases was filed this week; the court Ordered the two cases consolidated yesterday, January 18.  The CPOA/CMD will still assert its appeal and arguments independent of the Bensons.  However, through consolidation, the Eagle County District Court will be able to hear and determine all of the related claims in one single case.
 
We will continue to provide copies of significant pleadings/filings in all of the court cases.

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We commit to timely and open communications.  Below is communication sent on this topic prior to January 2017. 


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