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III. ARGUMENT <br />The Town Council of the Town of Vail abused its discretion and /or exceeded its jurisdiction <br />in denying Petitioner's appeal of the Town's Planning and Enviromnental Commission's <br />approval of the Town's own application to construct a whitewater park in Gore Creek as the <br />record is devoid of evidence to support such action and the contemplated park is prohibited <br />by the Town's Code, its Master Plan, and protective covenants on the subject property. <br />A. The Vail Town Code prohibits the contemplated construction. <br />The improvements contemplated by the Town are prohibited by the Vail Town Code in <br />several respects. <br />The improvements approved by the PEC and the Town Council constitute <br />"structures" as defined by the Vail Town Code and structures are specifically <br />prohibited in flood hazard areas such as Gore Creek. <br />The Vail Town Code, § 12 -2 -2, defines "structure" as: <br />Anything constructed or erected with a fixed location on the ground, but not <br />including poles, lines, cables, or other transmission or distribution facilities or public <br />utilities, or mailboxes or light fixtures. At the discretion of the Design Review <br />Board, swimming pools and tennis courts may be exempted from this definition. <br />Section 12- 21 -10(A) of the Vail Town Code contains an outright prohibition on the placement of <br />structures in a flood hazard zone, stating that "no structure shall be built in any flood hazard zone." <br />The subject property is located within a known and designated flood hazard zone (Record, Tab 4, <br />No. 2, p. 2), and therefore structures cannot be built on the subject property. <br />The drop structure improvements at issue clearly fit within the Code definition of structure <br />as they are to be constructed or erected with a fixed location on the ground, and they do not fall <br />within any of the blanket exceptions to the definition. The record is replete with evidence that the <br />whitewater park improvements consist of structures, including numerous instances where the Town <br />itself and the Town's consultants call the improvements "structures." The Town's application and <br />7 <br />