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Benchmark Covenants

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.

BACKGROUND
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.

LANDOWNERS COMMITTEE
Any property owner (including an authorized representative of a property owned by a legal entity) may serve on the five member Landowners Committee. If you are interested in serving on the Landowners Committee, you are encouraged to submit a letter of interest to the Avon Town Council by 5:00 p.m. on February 21, 2017. The letter should describe your interest in Avon, your views on the Benchmark Covenants, and any experience you have with private protective covenants and local government process. Letters of interest may be mailed to:

Town of Avon
P.O. Box 975
Avon, CO, 81620
Attn: Avon Town Clerk


Letters of interest may also be e-mailed to or hand-delivered during normal business hours to the Office of the Town Clerk, at the Avon Town Hall, One Lake Street, Avon, CO, 81620, or faxed to (970) 949-9139.

TOWN COUNCIL REVIEW PROCESS
February 28, 2017 – Avon Town Council will conduct a public hearing regarding the Benchmark Covenants, will interview property owners who are interested in serving on the Landowners Committee and may take action to appoint five persons to the Landowners Committee. 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.

March 14, 2017 – Avon Town Council will consider the following actions: (1) voting as a property owner in the Benchmark Subdivision to terminate the Benchmark Covenants; (2) voting to appoint five members to the Landowners Committee if such action is not taken on February 28, 2017; and (3) 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.

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