For the week of February 12-18, 2003

Bid to stop Elkhorn Hotel demolition
fails in court

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By GREGORY FOLEY
Express Staff Writer

An eleventh-hour effort by three Elkhorn property owners to obtain a court-issued injunction to stop the demolition of the Elkhorn Hotel failed last week.

Fifth District Court Judge James May last Wednesday denied "in all respects" the plaintiffs’ demand for an injunction, setting the stage for demolition operations to begin as scheduled Thursday morning.

Judge May’s ruling to deny the injunction came after approximately seven hours of argument and testimony presented during a two-day span.

"The plaintiffs have not demonstrated irreparable injury," May said.

Elkhorn property owners Michael Simmonds, Dana Kehr and Marty Huebner on Jan. 23 filed a complaint against hotel owner CG-Elkhorn seeking a preliminary injunction to halt the demolition project. The suit was filed with the intention of gaining a permanent injunction against the removal of the hotel.

The suit also named the Sun Valley Elkhorn Association homeowners’ group as a defendant in the case, claiming that the group’s board of directors and Architectural Design Committee did not have the authority to approve an application to demolish the hotel.

In order to raze the 132-unit hotel, CG-Elkhorn had to gain approval from the SVEA and the city of Sun Valley. The city Planning and Zoning Commission conditionally approved the demolition plan on Jan. 7.

Judge May ruled last Wednesday that the committee did have the authority to grant approval of the demolition project.

Barry Marcus, attorney for the plaintiffs, argued that the hotel is an essential element of the planned community at Elkhorn Village, and Elkhorn’s "Master Declaration of Covenants, Conditions and Restrictions" mandates that the hotel be maintained and operated as a commercial venture.

"(The plaintiffs) bought their properties based on the continuation of the commercial center," he said.

The argument was based in part on references to the fact that CG-Elkhorn has not yet submitted any formal building plan or application to the city, and was thus technically seeking to create "open space" in the village core.

"The demolition of the hotel converts the use to open space, which is not a permitted use," Marcus said.

SVEA board president John O’Connor testified that SVEA directors in their review of the plan generally agreed that CG-Elkhorn would eventually redevelop the site, despite not having an absolute assurance that a building project would be executed.

"I can’t believe they spent $7.33 million to leave it as open space," O’Connor said, referring to the developer’s 2001 deal to purchase the hotel property.

Doug Clemens, a Ketchum-based land planner who managed the construction of the Elkhorn Hotel and sits on the SVEA Architectural Design Committee, testified that committee members placed conditions on the project because they "didn’t want (the site) looking like Ground Zero."

Ned Williamson, attorney for CG-Elkhorn, argued that the demolition project would be tightly monitored and would not impose "irreparable damages" on the property owners.

He noted that if the judge opted to grant the injunction, the plaintiffs would be forced to post a bond to cover any potential losses to CG-Elkhorn if the project was delayed. He estimated that the group would have to post $18,000 per month if the project was held up, plus the $181,000 that CG-Elkhorn is paying a Twin Falls-based contractor to conduct the demolition.

Williamson also argued against claims by the plaintiffs that all of the SVEA members should have voted on the demolition proposal, not just the ADC.

"To suggest that the entire membership should look at this would create absolute chaos," he said.

Williamson said the approximately 1600 members of the SVEA effectively delegated authority to the ADC to make decisions on building-related projects.

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