EDWARDS — The path up from the interstate is steep and muddy. In the winter, it’s closed to all visitors so elk and deer can hunker unbothered. At the end of the path lies an oasis where Florida investors Petr Lukes and Jana Sobotova want to build a luxury community.
The developers have spent the past decade fighting to connect their 680-acre island of aspens in a sea of federal land to the valley floor. Their proposed community of 19 luxury homes needs a road.
The investors, who bought the property in 2008 for $9.5 million, won approval for an access road a couple months ago. But as they say in a Nov. 9 objection, it’s the wrong road.
Scott Fitzwilliams, the supervisor of the 2.2 million-acre White River National Forest, in September begrudgingly granted the developers approval for year-round, paved access to the proposed Berlaimont Estates community. Fitzwilliams’ approval cited vehement opposition and myriad ecological and wildlife concerns. But allowing a paved connector followed the 1980 Alaska National Interest Conservation Act, or ANILCA, which directs federal land managers to provide “adequate access” to allow owners of private parcels surrounded by public land “reasonable use and enjoyment” of their property.
Lukes and Sobotova are arguing the road alignment Fitzwilliams approved will have greater impacts to wildlife and increase wildfire hazards. They also don’t like that the approved road enters the community on the eastern end instead of the middle of the horseshoe-shaped parcel. Or that it requires as many as seven switchbacks as it climbs 2,000 vertical feet to the plateau where homes are planned. They are asking his boss — the forester for the Forest Service’s Rocky Mountain Region — to overturn the decision, warning that “a federal court will not uphold” Fitzwilliams’ choice of road alignments.
“We are just kind of scratching our heads at the final decision,” said Andy Hensler, the former assistant general counsel for Vail Resorts whose Huperetes Advisors is consulting on the project. “The rationale for the decision is not supported by the analysis.”
Hensler and the Berlaimont team never refer to Lukes and Sobotova by name, saying that their clients are “very private” and would not want to be interviewed.
Across the state’s mountain communities, the number of unrealized luxury real estate projects that have failed far exceeds the few that are healthy. But that could be changing during the pandemic as resort destinations and luxury communities across the West post record sales.
Still, like many undeveloped mountain luxury projects, especially those proposed inside public lands, the Berlaimont plan has drawn impassioned resistance.
Berlaimont is one of the few new luxury housing projects currently proposed in Colorado’s resort communities, where focus in recent years has been on developing higher-density, workforce-friendly communities closer to downtowns and transportation hubs. In the Vail Valley, Florida developer Bobby Ginn’s plans for a high-end golf community up Battle Mountain Pass foundered after a decade. St. Louis developer Fred Kummer spent more than 40 years trying to build a golf and ski community up Brush Creek Valley before selling his Adam’s Rib project for pennies on the dollar. The Lodge & Spa at Cordillera, the opulent anchor of the Cordillera golf community, has been converted to a high-end drug rehabilitation facility.
Farther south, Texas nonagenarian billionaire Red McCombs — who once owned the Denver Nuggets — has spent more than 30 years trying to develop a high-end ski village with as many as 10,000 homes atop Wolf Creek Pass, using the same ANILCA law in an ongoing fight for a road into his property.
In the past four years, the chorus of criticism of the proposed Berlaimont development and its access road has grown to include Democratic state leaders like Rep. Dylan Roberts and Sen. Kerry Donovan, Eagle County’s commissioners, conservation groups and local residents.
Colorado Gov. Jared Polis, Colorado’s U.S. Sen. Michael Bennet and U.S. Rep. Joe Neguse in June 2019 sent Fitzwilliams a letter echoing local concerns about how an access road would impact wildlife.
“It is imperative that the Forest Service fully consider this local input and valid concerns,” reads the letter from the three Democrats, “which suggest that the proposal may not be reasonable.”
Planning since 2008
Lukes and Sobotova are Czech real-estate magnates whose Cimex Invest and Cimex Group develop and manage commercial and hotel real estate in Europe and the U.S. They are the third owners since the early 2000s who have tried to develop the property above Edwards, which is zoned “resource,” which is meant to “maintain the open, rural character” of Eagle County by limiting development to only one home per 35 acres.
The two developers live part time in Vail. Town of Vail planning documents show Cimex Invest company last year built an 8,800 square-foot ultra-modern home on Vail’s slopeside Forest Road; it hit the market this summer for $45 million. (The Czech investors bought the dormant Ski Rio ski area in 2007 for $6.5 million, which was last operated by Texas investor John Lau, who closed the ski area in 2000 along with Cuchara ski area in southern Colorado. Lukes and Sobotova rebranded the resort in Amalia, New Mexico, as Endless Blue, a 3,000-acre private snowcat ski area offering group retreats with cabin rentals and potential for a 90-home subdivision.)
In 2008, Lukes and Sobotova began working with the Forest Service on an access road that would climb 2,000 feet above Interstate 70 to 19 homesites. The investors delayed the Forest Service process in 2009 while they sought county approval for variances allowing technical road improvements and certain alignments, which the county approved in 2014 after environmental review. Since the project divided homesites into 35 acres, it was exempt from county review of larger impacts that are required for more dense subdivisions. (If the developers seek county approval to run water and sewer infrastructure along a newly constructed road, the county could have another chance to consider the project as part of a 1041 permitting process.)
The Forest Service began studying the requested access road again in 2016. The proposed road crosses an area that is closed from Dec. 1 through May every year to protect elk and deer. The Forest Service prohibits motorized use in the winter on the lands around the Berlaimont property except for Forest Service Road 774, which stretches from Wolcott to Vail.
The Forest Service’s 301-page Draft Environmental Impact Statement, issued in January 2018, outlined four alternatives for accessing the property, including an option that would leave the Berlaimont developers using existing dirt roads to access the property.
- The no-action alternative was ultimately dismissed, partly because motorized traffic on existing roads leading to the property is prohibited in winter to protect deer and elk herds.
- The second alternative for a road maximizes use of existing Forest Service roads and minimizes the distance traveled on forest land but requires seven switchbacks up a steep hillside on the private property. Alternative 2 calls for 2.5 miles of new road on federal land and impacts about 33 acres of federal land, with 3.1 miles of new road on 37 acres of private land.
- Alternative 3 reduces visibility of the road from the valley by tucking it into a drainage and cuts the need for switchbacks while limiting potential drainage and erosion issues. The Alternative 3 road requires 4.2 miles of new road impacting 54 acres of Forest Service land, while 1.1 miles of new road is on 11 acres of private land.
- A fourth alternative puts 4.3 miles of new road on federal lands, impacting 50 acres with 1.5 miles of new road impacting 18 acres of private land. Wildlife biologists suggest the Alternative 4 route would have less impact on deer and elk.
The Forest Service’s Draft Environmental Impact Statement identified Alternative 3 as the agency’s preferred route to access the private inholding. The agency’s Final Environmental Impact Statement was issued in September 2020, along with Fitzwilliams’ Draft Record of Decision that selected Alternative 2.
“All but a few” of 1,000 comments were in “strong opposition.”
Fitzwilliams, in his decision, said the agency had received about 1,000 comment letters on the project and “all but a few” were in “strong opposition to the project.” In the draft final decision, he said he chose Alternative 2 “because it has the least amount of impact and disturbance” to national forest lands and avoids winter habitat for elk.
“One of the major concerns of the public and in our analysis was how this access road will adversely impact wildlife in the area,” Fitzwilliams wrote. “Avoiding these winter concentration areas provides for additional protections for wildlife that are adversely impacted by this project. My goal in choosing this alternative is to create fewer impacts to NFS lands, resources, and wildlife. In comparison to the other action alternatives, this route does that.”
Fitzwilliams described “reasonable use and enjoyment” and “adequate access” as “nebulous” definitions, but he concluded the proposed use at Berlaimont is reasonable, citing its consistency with local zoning and state regulations. (The objection filed by the developers refers to ANILCA’s “reasonable use” and “adequate access” as “unambiguous text.”)
Fitzwilliams concluded that 2.4 miles of paved road across national forest land is adequate to meet the needs of the proposed community.
Fitzwilliams acknowledged the route he supported would have a larger visual impact and would be more expensive for the landowner to build. Even with the paved road, access in the winter will be limited to only homeowners and guests to limit effects on wildlife.
He pointed to the 640-acre Lichen Ranch, an inholding in the Routt National Forest that was subdivided into 18 homesites, all 35 acres or larger, and granted an easement for a road on public land access by the Forest Service. The Forest Service in the 1980s did not use ANILCA to grant that easement to access private property around the ranch’s Lake Agnes, which had been used for decades as a corporate retreat for an energy company. Today, most of the parcels at Lichen Ranch, which surround the 110-acre Lake Agnes, are valued at more than $1 million with homes selling for much more.
“It is practically an identical land use to the Berlaimont proposal, thereby demonstrating that the Berlaimont proposal is not unprecedented,” Fitzwilliams wrote. “I cannot ignore this case. Laws and regulations require me to take a much more in-depth look at this project.”
He said the agency tried to pursue a land exchange with Lukes and Sobotova, but they declined.
“The Forest Service cannot force such a process on a private entity, so a land exchange was not a viable possibility,” Fitzwilliams wrote.
“Our clients ultimately are business people but the huge drive for them in this is they intend to build a home here. This is where they want their home to be and they said ‘We have friends we think would want to live here, too,’” Hensler said.
Wildlife “on the ropes”
Dominic Mauriello, a former town planner for Vail whose Mauriello Planning Group has worked on dozens of public and private projects and communities in the Vail Valley, said the owners of Berlaimont own other properties in Eagle County and are big mountain bikers. He said the investors want to help develop mountain bike trails on the Berlaimont property to offset any loss of hiking trails that might come with the development of homes above Edwards.
Both Hensler and Mauriello said Lukes and Sobotova never really planned for such fierce opposition to their plan. They studied the ANICLA process and didn’t think access would be a big issue, said Mauriello, who is helping plan the project.
“I don’t think when they bought it they thought they would be where they are today. Whether it was being naive or simply relying on what they thought was the law, they have tried to do something that is light on the land and tried to work collaboratively so it would all go smoothly,” Mauriello said.
Peter Hart, a staff attorney for Carbondale’s Wilderness Workshop, wrote his first opposition argument against Berlaimont in 2009. He’s recruited a team of former wildlife managers to defend the elk and deer that winter in habitat bisected by all the road proposals.
And those herds of elk and deer need that habitat, Hart said, as their populations dwindle under pressure from development and backcountry recreation. The herds are down by as much as 50% in the past 20 years, according to Colorado Parks and Wildlife aerial surveys and research by wildlife group Rocky Mountain Wild.
Hart bristles at the objection that one road is better for wildlife than another.
“All of these alternatives are going to be detrimental to the wildlife population, which, frankly, is on the ropes,” said Hart, pointing to Forest Service estimates of 160 to 215 car trips a day in an area that now prohibits all winter travel. “And when the Forest Service noted that there are so many communities in critical winter habitat in the Vail Valley, they used that as a reason to consider yet another.
‘We have made a lot of crappy decisions that put our wildlife on the ropes and those crappy decisions mean we should make more? That does not make any sense,” he said.
Hart’s list of issues is long. When Lukes and Sobotova offer to increase the number of bike trails, he points to impacts from backcountry travel already stressing wildlife in the Eagle River Valley. When the developers outline very aggressive wildfire mitigation plans — which include fire-resistant construction and ponds capable of supporting helicopter drops — he questions the wisdom of building deeper into the wilderness-urban interface. Sixty miles north, the East Troublesome fire destroyed more than 300 homes — including many multimillion-dollar mansions — built deep in the forest.
“Is this a decision we should be making right now given all that we know about climate change and wildfire?” Hart said.
Hart’s argument, which is shared by a large contingent of conservation groups, is that the Forest Service never should have concluded that Berlaimont is a “reasonable use” of the land. He would like to have seen an alternative between “no action” and a 26-foot wide paved road.
Hart wonders if owners of other inholdings will see Fitzwilliams’ decision and decide they want a paved road. What if other owners in, say, Fulford or Piney, two communities inside the White River National Forest that are only accessible by snow machines in the winter, decide they want year-round access, too? Hart wondered.
“We have an opportunity here,” Hart said. “The Forest Service has discretion to determine if this is a reasonable use or not. The Forest Service could set a precedent here not just in the White River but all over the country.”
Lukes and Sobotova also did not anticipate the reaction from conservation and environmental groups, Hensler said. They want to protect open space and wildlife on the property, he said, describing a long-standing playbook where developers come in with huge plans and then appear to make concessions as they adjust downward to accommodate locals and land managers.
“Our clients’ approach has been to be to plan something reasonable and find something doable and something that will work and then ask for that,” said Hensler, describing how the project leaves 95% of the parcel undeveloped.
They are asking the Forest Service for access, which the agency is required to provide to owners of inholdings of private land per the 1980 Alaska National Interest Conservation Act, or ANILCA. That law directs federal land managers to provide “adequate access” to allow a landowner “reasonable use and enjoyment” of their property.
The owners’ 74-page objection to the road alignment argues Alternative 2 does not connect to the developable portion of the Berlaimont property, requires “substantial blasting and earthwork,” forces seven switchbacks with retaining walls and guardrail that could be barriers for wildlife. The objection also raises concerns that the approved route could hinder emergency services and evacuation in the event of fire.
“The aggregate deficiencies of the access in Alternative 2 will functionally prevent Berlaimont from making any use of the property,” reads the objection, which was filed with Fitzwilliams’ boss, Tricia O’Connor, the Rocky Mountain Region acting regional forester.
The objection asks O’Connor to direct Fitzwilliams to select Alternative 3. It includes a Nov. 6 memo from the Eagle River Fire Protection District expressing concern for added travel time to reach homes on the Alternative 2 alignments. The Alternative 3 alignment takes into consideration the FireWise Community concepts designed to enhance resiliency to wildfire, reads the memo from Fire Chief Karl Bauer.
Bauer also noted the steepness, switchbacks and fewer pullouts of the Alternative 2 road alignments increased chances of accidents on the road.
Colorado State Sen. Kerry Donovan disagreed with Fitzwilliams’ decision to give them a road at all. She said access should not be created to accommodate a luxury development when the area is more suitable for seasonal cabins.
Donovan points to Eagle County’s Fulford community as an example. The former mining camp is surrounded by public land in Eagle County and has a couple dozen homes that are accessed by four-wheel drive on a Forest Service road in the summer and snow machine in the winter.
As Colorado resort communities grapple with affordable housing, wildfire mitigation and the impacts of growth and recreation on wildlife, Donovan said, “this kind of limited occupancy, resource-intensive development just seems incredibly out of touch.
“There is a very strong agreement that this type of development is kind of the last straw in the valley and doesn’t provide any real clear benefit to the community and seems to only take away from the community,” said Donovan, who submitted a letter with Rep. Dylan Roberts to the Forest Service opposing the project. “The developer seems to not want to listen to that community voice and appears to feel very entitled to building homes on that mountain.”