County Council sides with developer in building dispute at The Canyons
The Summit County Council has sided with a developer in a high-stakes building dispute at The Canyons. Councilpersons ruled July 14 that county officials erred in revoking a temporary certificate of occupancy for Morinda Properties Escala Lodges, LC.
In February, the county’s Community Development Department revoked the permit claiming it was issued improperly in September 2008.
But the permit for the condominium hotel should not have been yanked, Summit County Council Chairwoman Claudia McMullin told Community Development Director Don Sargent.
"We know you were trying to do a good job and the right thing," McMullin said in a hearing in Coalville. "It just did not work out that way."
The County Council voted to grant the developer’s appeal of the revocation after hearing conflicting reports from county staffers.
"There was confusion between departments and within departments, and inconsistent messages being sent by different departments," McMullin said. "This applicant had every reason on Earth to rely on the temporary certificate of occupancy."
Tony Kaye, an attorney at Ballard Spahr LLP, representing Escala Lodges, said councilpersons made the right decision.
"We never quite understood what the motivation was," Kaye said. "They put us in the position of having to appeal the revocation of a [temporary certificate of occupancy] that we knew had been properly issued in the first place."
But county officials claimed the temporary certificate of occupancy in question had not been properly issued. Only a building inspection was completed at Escala in September 2008, they said.
"The developer considered this inspection report as a temporary certificate of occupancy," a county staff report from Sargent states. "It was determined by the Building Department and Community Development Department that the inspection was not a [temporary certificate of occupancy] and reference to such was in error."
In October 2008, Jami Brackin, a deputy county attorney, notified Escala in an e-mail that temporary certificates of occupancy were not permitted at The Canyons. Sargent sent Escala a letter in February 2010 revoking the temporary certificate of occupancy.
But the developer appealed the decision, claiming Escala was issued a valid permit, which had never been revoked.
County officials had only 10 days to revoke the temporary certificate of occupancy after the permit was issued.
Brackin’s 2008 e-mail was about 12 days too late, according to Melanie Vartabedian, a Ballard Spahr attorney representing Escala.
"The [temporary certificate of occupancy] is valid and it always has been," Vartabedian told the Summit County Council.
But Sargent also claimed the temporary certificate of occupancy was invalid because other departments, including fire, water and sewer, had not signed off on the permit.
Vartabedian countered that the Snyderville Basin Development Code does not require those departments to OK temporary certificates of occupancy.
"Morinda relied on the [temporary certificate of occupancy.] There were no timely appeals of the [temporary certificate of occupancy,]" Vartabedian said.
Summit County Councilman Chris Robinson said he agreed. He voted to uphold the developer’s appeal.
Attempts by Summit County to revoke the temporary certificate of occupancy were "a day late and a dollar short," Robinson said.
The issuance of the temporary certificate of occupancy set into motion "a multi-million dollar process," said Adam Loser, project manager at Escala.
Loser explained that based on the temporary certificate of occupancy, the developer advised buyers of their obligations to close on their units.
Soon after there were several closings at Escala, he said.
"At the time we received the [temporary certificate of occupancy] we had no reason to believe that it would be revoked," Loser said.
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