It is official: PCMR threatened to dismantle the lifts if they lose.
PCMR intends to dismantle, remove most lifts if it loses lawsuit Talisker claims the lifts must remain, says the 'threats are disturbing'
by Jay Hamburger, THE PARK RECORD
Posted: 04/08/2014 11:01:34 AM MDT2 Comments Talisker attorney John Lund (left) and Park City Mountain Resort attorney Alan Sullivan present opposing arguments in Summit County’s Third District Talisker attorney John Lund (left) and Park City Mountain Resort attorney Alan Sullivan present opposing arguments in Summit County's Third District Court during a September 2013 hearing. (Christopher Reeves/The Park Record)
The president and general manager of Park City Mountain Resort last week indicated the resort intends to dismantle and remove most of the ski lifts if it is forced off the land involved in a lawsuit between PCMR and its landlord, Talisker Land Holdings, LLC.
It was another in a series of dramatic statements made by both sides in the case. The intention was outlined in a declaration filed in 3rd District Court by Jenni Smith, the president and general manager of PCMR. It was also included in a PCMR memorandum in opposition to a Talisker Land Holdings, LLC request that the resort be found to be unlawfully occupying the land.
According to the Smith declaration, filed on April 2, the PCMR side would remove all of the lifts except Jupiter, Thaynes and Motherlode. The lifts that would be removed "are constructed so that the ski lift towers are bolted to concrete footings but are not otherwise affixed to the land," the filing says. The Jupiter, Thaynes and Motherlode lifts are located in more remote areas of the resort and do not have the uphill capacity of most of the other lifts.
The distinction highlighting the concrete footings is important to the PCMR side based on the leases in dispute in the case and the detailed language of the de facto eviction notice Talisker Land Holdings, LLC served on the resort in August. The eviction notice maintains that structures and improvements "that are affixed" to the property, including the ski lifts, will belong to Talisker Land Holdings, LLC if it is successful in the case. The leases in dispute in the lawsuit required that PCMR leave behind the infrastructure affixed to the land.
The Smith declaration details the components of the lifts that would be dismantled and removed if it must leave the acreage. They include the towers, chairs, cables, the grips attached to the chairs, the bullwheels that move the cables and counterweights.
"If we are forced to vacate the property, we will take our property with us," Alan Sullivan, PCMR's lead attorney, said in an interview.
He acknowledged that scenario is a "really remote possibility" that would occur if Talisker Land Holdings, LLC successfully evicts PCMR and obtains a restitution order against the resort. Sullivan said the filing was made at this point in the legal proceedings to illustrate the complexities of the case to Judge Ryan Harris. The filing argues that a restitution order should not be made until the various points in the case are decided.
The resort's memorandum points to past cases outside of Utah addressing airplane hangars and silos as precedents in defining what is affixed to a property. Hangars and silos were not found to be fixtures in those cases, the PCMR side says. It says previous cases, also outside of Utah, are "split on whether ski lifts are fixtures" and the outcomes depended on the details of those cases.
The PCMR side's memorandum, meanwhile, argues that it will require more than the few days outlined in the de facto eviction notice to remove the infrastructure if it must leave. The "magnitude of the task" is "immense" and must be done when there is not snow on the ground, the filing says. It also says the Talisker Land Holdings, LLC side will not suffer if PCMR is delayed since the firm's countersuit already seeks damages. The PCMR side indicates it would post some sort of security deposit if required by the judge.
The case centers on PCMR's leases of Talisker Land Holdings, LLC acreage underlying most of the resort's terrain and whether the leases were renewed. The PCMR side also claims it was denied a right of first refusal when Talisker Land Holdings, LLC reached an agreement with Colorado-based Vail Resorts to operate Canyons Resort. The deal with Vail Resorts can be expanded to the disputed terrain at PCMR depending on the outcome of the lawsuit.
John Lund, the lead attorney for Talisker Land Holdings, LLC, rejected the idea that the resort is allowed to take the chairlifts. He said in a prepared statement PCMR is inflaming the situation.
"PCMR does not have the legal right to remove all the chairlifts from the mountain, but their threats are disturbing and not constructive and designed only to further delay a realistic resolution of this matter," Lund said. "Talisker's chosen new operator, Vail Resorts, clearly has the wherewithal and expertise to ultimately replace these lifts with state of the art equipment. PCMR's inflammatory talk is risking community disruption and the resort's guest experience, and is not focusing on realistic solutions."
Edited by quant2325 - 4/8/14 at 4:45pm