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HomeMy WebLinkAboutminutes.council.20080225Regular Meeting Aspen City Council February 25, 2008 CITIZEN PARTICIPATION ............................................................................................. . 2 COUNCILMEMBER COMMENTS ................................................................................. . 2 CONSENT CALENDAR .................................................................................................. . 2 • Resolution #12, 2008 -Contract Castle Creek Hydropower Project .................... . 3 • Minutes -February 11, 2008 ................................................................................. . 3 ORDINANCE #4, SERIES OF 2008 -Code Amendment Service/Commercial/Industrial Zones .................................................................................................................................. . 3 RESOLUTION #13, SERIES OF 2008 -Lift One Neighborhood Master Plan COWOP Eligibility ........................................................................................................................... . 4 LIFT ONE LODGE ........................................................................................................... . 9 LIFT ONE MASTER PLAN COST SHARING AGREEMENT ...................................... . 9 LIFT ONE MASTER PLAN SUPPLEMENTAL BUDGET REQUEST ......................... . 9 RESOLUTION #15, SERIES OF 2008 -Appeal of Land Use Interpretation -Aspen Brewing Company ............................................................................................................. . 9 RESOLUTION #14, SERIES OF 2008 -Appeal of Administrative Decision -Chateau Roaring Fork #43 .............................................................................................................. 12 Regular Meeting Aspen City Council Februarv 25, 2008 Mayor Ireland called the meeting to order at 5:00 p.m. with Councilmembers Skadron, Romero, Johnson and DeVilbiss present. CITIZEN PARTICIPATION 1. Toni Kronberg congratulated Council on working toward solutions and their new vision for Aspen. COUNCILMEMBER COMMENTS 1. Councilman DeVilbiss reported he attended the RFTA board meeting and there have been discussions about engaging in fuel hedging. Councilman DeVilbiss said he will not vote for the hedging program until he can explain it to Council. Councilman DeVilbiss said one of his issues is what security will RFTA have that this instrument will pay off at the end of the period and what are the risks. 2. Councilman DeVilbiss noted March 17`h is a RFTA board retreat. All elected officials and the public is invited. There is also a stakeholders meeting March 4`h at 8:30 a.m. The public is also invited to that meeting. 3. Mayor Ireland commended the Aspen High School girls cross country team for finishing second. The Aspen High School basketball team won their game by two points. They are the conference champions and will be going to the state play offs. Saturday is a benefit race up Buttermilk, One for the Heart. 4. Mayor Ireland announced the next citizens budget task force is Wednesday February 27`h at 5:30 p.m. at the Pitkin County Library. 5. Mayor Ireland noted each Council person submitted 15 names for their choices for the Historic Task Force. 6. Mayor Ireland said he will be going to Denver to testify on H.B. 1122, transportation and land use planning. 7. Randy Ready, assistant city manager, told Council there have been a number of inquiries about what the streets department has been doing. The last 10 days, they removed 1100 loads of snow and spent 604 hours moving it to snow dump areas. The streets department has been focusing on the north and south sides of Main street and on opening streets that have become very narrow. CONSENT CALENDAR Councilman Romero moved to approve the consent calendar; seconded by Councilman Skadron. Councilman DeVilbiss requested a change in the minutes from "vents" to "events". Mayor Ireland asked if the Castle Creek Hydropower project is on budget. John Hines, water department, told Council the budget was $1.5 million and this came in 2 Regular Meeting Asaen City Council Februarv 25 2008 at $1.313,000. Mayor Ireland stated he is pleased that the plant will be less voluminous than was presented to the public as part of the ballot measure. Hines told Council there were 11 bids from 5 different countries and this is the best price and quietest turbine. The consent calendar is: • Resolution #12, 2008 -Contract Castle Creek Hydropower Project • Minutes -February 11, 2008 All in favor, motion carried. ORDINANCE #4, SERIES OF 2008 -Code Amendment Service/Commercial/Industrial Zones Ben Gagnon, community development department, told Council the public hearing on this ordinance will be March 24`6. Gagnon said P&Z reviewed, made suggestions and approved code changes to the S/C/I zone. These amendments follow Council's direction from a work session last fall to keep the zone district fairly strict in terms of the uses. Councilman Romero noted there are design studio allowed elsewhere and are the ones in SCI grandfathered. Gagnon said yes, they are. Councilman Romero said medical offices are listed as permitted uses; however, the general term "office" has a governor of no greater than 10%. Councilman Romero asked for information at second reading as to how medical offices will be treated in that 10%. Councilman Romero said medical offices has an either/or condition of 15% of the building or .25:1 FAR. Councilman Romero said 15% of a building is not defined and is the .25:1 FAR whichever is less. Councilman Skadron asked why restaurant and bar uses are specifically prohibited in the SCI zone. Gagnon said these uses have been restricted since 1975; there is no history of these uses being located in the SCI zone. Gagnon said retail and restaurant uses tend to go with the commercial core and is an inappropriate use for the SCI zone which looks to provide space for small businesses. Councilman Skadron said for second reading he would like information regarding appropriateness of restaurant use in the SCI zone. Mayor Ireland noted the ordinance has a cap on the maximum size of an individual unit. Mayor Ireland said he does not think size creates affordability and it may create more activity to have two 2,000 square foot units rather than one 4,000 square foot unit. Mayor Ireland requested this be addressed for second reading. Councilman Romero asked if staff has a general rental rate for SCI and also the average rents for medical offices. Mayor Ireland noted the language regarding breweries limited to 16 ounces/person day should be amended if the appeal on this issue comes out with a different conclusion. Councilman DeVilbiss moved to read Ordinance #4, Series of 2008; seconded by Councilman Romero. All in favor, motion carried. ORDINANCE No. 4 3 Reeular Meeting Aspen City Council February 25 2008 (Series of 2008) AN ORDINANCE OF THE ASPEN CITY COUNCIL, ASPEN, COLORADO, DETERMINING THAT AMENDMENTS TO THE FOLLOWING CHAPTER AND SECTION OF THE CITY OF ASPEN LAND USE CODE OF THE CITY OF ASPEN MUNICIPAL CODE: 26.710.160 -SERVICE COMMERCIAL INDUSTRIAL (SCI) ZONE DISTRICT, MEET APPLICABLE STANDARDS OF REVIEW. Councilman DeVilbiss moved to adopt Ordinance #4, Series of 2008, on first reading; seconded by Councilman Romero. Roll call vote; Councilmembers Johnson, yes; DeVilbiss, yes; Skadron, yes; Romero, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #13, SERIES OF 2008 -Lift One Neighborhood Master Plan COWOP Eligibility Chris Bendon, community development department, told Council this is a request to initiate a master planning process for the Lift One neighborhood. Bendon reminded Council there have been separate applications proposed by sepazate property owners for this area, each of which requires detailed review. Staff and Council have questioned the vision for this neighborhood, what is the development, what is the expectation. Bendon said COWOP (Convenience or welfaze of the public) is process with its source in the state statutes. Staff researched processes that municipalities were using to review projects where there are public properties or significant public interest involved. Bendon said the COWOP is essentially a master planning process to figure out a vision for a neighborhood, an area, or issues. Bendon said the process is to talk about goals, aspirations for the area, the obstacles to achieving those, the obstacles that something can be done about or the obstacles over which there is no control. From that, a vision and a plan will be developed with concurrence of the members. Bendon outlined the proposed property which is Dean street south towards Aspen Mountain, South Aspen street goes through the middle. On the east side is a project going through review, Lifr One Lodge, which will be put on hold for the master planning process. The city owns Lift One Pazk, Willoughby Pazk and all the rights of way throughout the area. Bendon said for a master planning process to be successful, it should not start with a solution or what the result should be. A master planning process should develop the results from the ground up. Bendon reminded Council they have control over the project; it is still their jurisdiction. They will have review and approval of any final project. Bendon said the task force should have a broad range of perspectives and not be laden with any one particular perspective. Bendon suggested a task force team of 22 members including members from Council, P&Z, HPC, the 3 other landowners, neighbors, Aspen Valley Ski Club, ACRA, citizens at large. Bendon pointed out there are check ins with Council, with P&Z and with HPC throughout the process. Bendon said the task force should establish its goals and what it expects to achieve and check those goals with 4 Reeular Meetine Aspen City Council February 25 2008 Council before they go forwazd. Bendon said staff anticipates this as a 6 month process starting in April. Bendon said the economic analysis will be important. This is proposed to be done by a third party. Bendon said there should be discussion of the methodology upon which the economics of the project will be reviewed prior to the third party doing any analysis. Bendon proposed a moderator being hired for the process. This is a significant area for redevelopment; it is the second portal to the ski mountain; and is an important azea. Bendon reminded Council there is an entitled townhouse project on the west side of South Aspen. Staff feels that is not the most exciting use for this location. Councilman Skadron asked in the cost sharing, "each party paying for independent services" if that means each party has its own group of professionals. Bendon said that means each representative will be paid for by their entity, like Bendon will be paid by the city; Sarpa will be paid by Centurion. The planner's work will not be billed back to the applicant. When outside professionals are hired, the costs will be split by the 4 parties. Councilman Skadron asked if the economic analysis is unique to this resolution and to what extent are the financial constraints discussed in the COWOP. Bendon noted in the Obermeyer and Visitor Center COWOPs, the financial review was done in house. Bendon said for this project, outside expertise should be brought in to do that analysis. Bendon noted when the COWOP gets to constraints, technical assistance will be brought in to see if there are things that can be done about those constraints. Councilman Johnson asked if it possible for Council to sign an agreement that even though economic information will be provided, that it can be kept from the public. John Worcester, city attorney, told Council financial information can be kept from the public if it is not provided to Council. All Council will be receiving is a conclusion or an opinion, which will be made public. Council will not be allowed to see the underlying financial data. Councilman Johnson said when Council sets out its pazameters, would that be perceived as shutting down certain solutions or discussions. Bendon said everyone has to be realistic about what constraints exist; they are either constraints that something can be done about, or nothing can be done about. Bendon said the task force will have to determine if it is worth going around obstacles. Mayor Ireland asked if Council will have access to the assumptions used by the financial adviser. Steve Barwick, city manager, said Council would and it is important to establish up front, like land costs and can the developer put in the current land value or do they use the original costs. Worcester said he is concerned about the task force getting into too much economic, financial data. Mayor Ireland said there are comparable industry standards. Councilman Romero asked how realistic the proposed timeline is compared to the other COWOPs. Bendon said some COWOPs have had no schedule. Obermeyer took about a yeaz with no timeline expectation. Bendon agreed this is a compressed schedule. Bendon told Council he expects the COWOP meetings to be weekly at first and then twice a month throughout the process. 5 Regular Meetine Aspen Citv Council February 25 2008 Councilman Johnson asked about including the Dolinsek property. Bendon said the outline of the proposed area is general. Bendon said the Dolinseks will be contacted. Councilman Johnson asked if ACRA has served as a voting member in prior task forces. Bendon said they did on the Visitor's Center. Councilman Johnson asked if HPC and P&Z reviews of the project are a new step. Bendon said COWOP does not exclude HPC review; if they have jurisdiction, the project is subject to full HPC review. Bendon said i1 has been helpful to have HPC members on the COWOP task force to keep their Boazd up to date. Councilman Johnson asked what other development possibilities exist south of parcel H that aze not being discussed. Bendon said that land is owned by the Ski Company, mostly in 10-acre mining claims. Councilman Johnson said he would like the conservation zoning district uses outlined. Mayor Ireland asked if Council wants P&Z review as part of this process, what would be the standard of review for that. Bendon said that could be determined during the COWOP process. The standards of review are set out in the resolution to give guidance on project review. Mayor Ireland said the emphasis should be on design and community benefits of the proposal not whether it is profitable. Mayor Ireland said the Shadow Mountain homeowners should be the designee for south of the project and there should be an opening for the Dolinseks on the COWOP. John Sarpa, Centurion Partners, owners of the property on the west side of South Aspen street below the Shadow mountain condominiums, said they have been working with the other major landowners in this area. Sarpa noted after their land use denial, the Mayor suggested a master planning process. Sarpa said their questions were if there was a process with some parameters with a timeline. Sarpa said the COWOP process is well suited for this area with different owners. Council previously expressed concern about looking at the Lodge at Aspen Mountain project as a stand alone project without knowing what else would happen in this area. Sarpa said they believe in and encourage this process. David Bellack, Aspen Ski Company, told Council their staff has done a great job putting clarity into complicated concepts. The Ski Company is looking forward to be part of this, to improve the experience at the base of lA. The Ski Company does not proposed any real estate development but optimize and enhance the ski experience and lifts and other related items. Bob Daniel, Lift One Lodge, said they are two years into a process and are suspending their application for this COWOP. Daniel said they went through a master plan process for the properties on the east side of South Aspen street and received approvals from HPC and P&Z on their conceptual application. Daniel said they hope this process will foster creativity and collaboration not existing in the current land use process. Mayor Ireland opened the public hearing. Alex Biel, vice-president Shadow Mountain Homeowners, stated they would like to be part of the process. They are physically close to the property and it is an exciting Regular Meeting Aspen City Council February 25 2008 opportunity. Cazl Levy, President Southpoint Condominium Association, said they aze delighted with this proposal and would like to participate in the COWOP. Doug Allen, representing Lift One Condominiums, stated they encourage the process and would like to participate in it. Derrick Johnson, Juan Street homeowners, stated they, too, would like to be involved as they are surrounded by the proposed project. Jerry Elder, Silver Shadow condominiums, said they are looking forward to participating with the neighbors and the developers. Tom Smith, representing the Caribou homeowners, said they would like to be involved in the process as affected adjacent landowners. Bob, Mountain Queen, said the owners are pleased the process is taking place and would also like to participate. Mayor Ireland noted there aze limited members to be appointed to the COWOP; however, that will not prohibit people from participating through public comment. Toni Kronberg said the resolution states people not on the task force can be e-mailed or noticed when there are COWOP meetings. Ms. Kronberg asked if public comment will be taken when a topic is being address rather than at the end. Mayor Ireland said that will be done as appropriate. Ms. Kronberg said she will bring forward to having lift served access being part of a transportation system and a 4-mountain gondola. Ms. Kronberg said this proposed area should be brought down to Durant street. Mayor Ireland closed the public hearing. Councilman Skadron said he has had reservations about the COWOP process in the past. Councilman Skadron said COWOP process can be lead by persons with the most knowledge and the result is a project that did not go through HPC and/or P&Z review. Councilman Skadron said this is a good azea for the COWOP process. Councilman Skadron stated he favors the review of stopping the townhomes without any associated penalties, allowing the Lift One application to be shelved without penalties, and the temporary use of the Holland House without being considered a change in use. Councilman Johnson asked if the Holland House is habitable. Daniel said it is not because of asbestos abatement and is striped to the studs. Daniel said they intend to move forward with demolition of the Holland House. Councilman Johnson said during the Lodge at Aspen Mountain discussions, representations were made to the inhabitants of the Mine Dumps relative to their place in line for replacement housing. Councilman Johnson asked if those representations would carry forward into this process. Sarpa said this is a clean slate; however, the task force may be willing to honor that priority and it would be Sarpa's intention to propose that. Councilman Romero stated he supports this process as the best tool for master planning the area. This is an area with Beat importance to the community and planning it will be a challenging task. Councilman Romero said he would like to participate in the COWOP process. Councilman Romero said the participation from neighbors is probably the best participation component. Councilman Romero said if everyone believes this area will be special into the future, everyone needs to put their energy and effort into this process. 7 Regular Meeting Aspen City Council February 25, 2008 Councilman DeVilbiss questioned the composition of the task force and noted many neighbors were supporters of the Lodge at Aspen Mountain or detractors. Councilman DeVilbiss suggested two neighbors from each direction if separate points of view could be found. This will increase the size of the task force but will also help balance the task force. Councilman DeVilbiss asked why the ACRA needs to be part of the task force team. Councilman DeVilbiss said the number of citizens at large should match the number of neighbors on the task force. Councilman Johnson agreed to put on hold, without penalty, the Centurion project and the Lift One Lodge project. Councilman Johnson stated he is concerned about demolition of the Holland House. Councilman Johnson said he understood one of the tenets of this is not to shut down any possibilities and demolition of the Holland House would shut down discussion of that area. Councilman Johnson said he would like to see the ballot language on Willoughby Park and the ski museum. Councilman Johnson noted the COWOP process is part of the land use code and Council should discuss potential P&Z and HPC review in this process. Councilman Johnson said he disagrees with only 4 citizens at large on the task force. Councilman Johnson stated the success of this task force is not dependent on agreement between the property owners, Council, and the neighbors but is mainly dependent upon broad community acceptance. Sarpa said one issue is that the task force members need to attend all the meetings, which does limit the field. Sarpa said another issue is how many task force members can be managed. Sarpa said the number 20 seemed a manageable size. Mayor Ireland suggested adopting the resolution giving Council the discretion to add some at-large members depending on the make up of the adjacent property owner members. Councilman Johnson said the parks representative and the housing board representative do not need to be voting members. Councilman Johnson questioned the ACRA being a voting member. Mayor Ireland suggested since this will go to P&Z and HPC for review, they do not have to be voting members of the COWOP. Bendon said having a P&Z and HPC representative as voting members gives them ownership of the project and ownership of the process. Mayor Ireland said he would like the discretion to add public members and/or neighbor members. Council agreed there should be 5 to 7 at-large and the same number of neighbor members and once Council sees the applications to the COWOP, they can decide the exact numbers. Bendon suggested Council provide a range for number of neighbors, staff will meet with the neighbors and allow them to figure out how they want to be represented on the COWOP. Mayor Ireland agreed each homeowner cannot have a voting member representative. Councilman Johnson moved to adopt Resolution #13, Series of 2008, provided Council will finalize the make up of the committee at a later date; seconded by Councilman Skadron. All in favor, motion carved. Regular Meeting Aspen City Council February 25, 2008 LIFT ONE LODGE Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Chris Bendon, community development department, told Council no action is required since Council adopted Resolution #13, which puts this project in a holding pattern. Bob Daniel, representing the applicant, pointed out the stated period they are taking no action is throughout the COWOP process. LIFT ONE MASTER PLAN COST SHARING AGREEMENT Chris Bendon, community development department, noted the 4 parties expect certain costs to be shared at 25% each. The community development department is also requesting $10,000 for community development department staff. Councilman Johnson noted the idea to go through a master plan was the city's. Two of the applicants have already spent money on their applications. Councilman Johnson said he does not think two of the applicants would have chosen to incur planning costs again. Councilman Johnson said he feels the city should pay more than 25% of the costs. John Sarpa, representing Centurion, told Council they see this process as a partnership and feel they should share appropriately. Councilman Romero moved to approve the Life One master plan cost sharing agreement; seconded by Councilman Skadron. All in favor, motion carried. LIFT ONE MASTER PLAN SUPPLEMENTAL BUDGET REQUEST Chris Bendon, community development department, pointed out this is a request to pay for the $35,000 shared costs and the $10,000 for staff support for a total of $45,000. Councilman Romero moved to approve the supplement appropriation budget request of $45,000 for Lift One master plan; seconded by Councilman Skadron. All in favor, motion carved. Councilman Johnson requested the last two agenda items be switched around as he has to recuse himself on the Chateau Roaring Fork Appeal because he lives within 300 feet of the application. Council agreed to the agenda change RESOLUTION #15, SERIES OF 2008 -Appeal of Land Use Interpretation -Aspen Brewing Company Chris Bendon, community development department, told Council one of the responsibilities of the director is to interpret the land use code when staff is asked what the code says and what it means. There is an appeal process to City Council. This is a review of the record, not a de novo review where new information maybe submitted. Bendon said this review is not "what should the code say". Bendon noted there are code Reeular Meeting Aspen City Council February 25, 2008 amendments to the S/C/I zone pending. Brewery is part of the S/C/I zone and Council can address at second reading what the code should say about breweries. Bendon said the service/commercial/industrial zones are located north of Main street and are about 6% of the city's commercial zoning. There is still a moratorium affecting the S/C/I zone. Bendon noted the criteria for the appeal aze whether or not due process was provided; whether or not the community development director acted within his jurisdiction; whether or not the director abused his discretion. Bendon told Council the process of asking for a code interpretation is relatively simple. Bendon stated he feels all due process issues were observed. Bendon pointed out the land use code has a section outlining the authority of the community development director. Bendon said he did use discretion in answering this appeal. Bendon said during building permit review, it appeared a portion of this space was designed to function as a bar and staff initiated discussions with the owners of the brewery on what was going on in their space. Bendon said staff reviewed the definition of brewery "a facility for the production and packaging of alcoholic malt beverages for distribution which does not generally receive the public or engage in retail sales". Staff felt that definition does not permit on site consumption contrary to "receiving the public" and "engaging in retail sales". Bendon said the brewery owners explained the intent of on site sales was for exposure of the product and it was for tastings, not to be a bar. Bendon noted all zone districts allow "accessory use which is a use that is supportive or secondary and subordinate to the principle use of the lot or parcel". The code also states "accessory use shall not be construed to authorize the use of not otherwise permitted in the zone district in which the principle use or structure to which it is accessory". Bendon pointed out a baz is not allowed because it is a use that is not permitted in the S/C/I zone district. Bendon said staff felt tasting as an accessory use would be all right as long as it is not a bar. Bendon said staff looked at components that make a business feel like a bar. The brewery agreed to limit their hours of operation to 9 p.m. Another issue was attracting the public with TVs and sporting events. The brewery owners agreed they did not want to create a bar atmosphere. The last element was how much alcohol would be allowed. Bendon told Council the owners of the brewery plan on having up to 6 different beers brewing on site at one time. Staff stated the tastings should be limited to 16 ounces of beer which could be a]located in any way. John Worcester, city attorney, reminded Council Aspen is a home rule municipality and zoning and planning are strictly local matters, which the courts have upheld. Worcester noted bars and taverns are not allowed in residential areas as a zoning issue. Chris Bryan, Garfield & Hecht representing the Brewery, told Council the applicants have appealed because they feel the code sets forth what can and cannot happen in S/C/I and a brewery, as they contemplate, would be permitted. Bryan said the community development director abused his discretion. Bryan stated the code in places does not say what the community development director says it says. Bryan noted the director states 10 Reeular Meetine Asaen City Council February 25, 2008 his interpretation of the code allows him to limit the consumption per day per person to 16 ounces. Bryan stated the code does not say that; there is no basis in the code for restricting consumption by adults to 16 ounces. Bryan stated the alcohol to be served at the brewery will only be beer brewed on premises; there will be no other alcohol, beer or wine. Bryan said a nightclub or bar is defined in the city code as the sale or dispensing of liquor by the drink for on site consumption where music, dancing and other entertainment may be provided or conducted. Bryan said entertainment will not be present in the brewery. Bryan said there will be no food at the brewery. Mayor Ireland asked how this would be different from a sports bar. Bryan said the brewery will be closed at 9 p.m.; there is only 400 square feet on premises. The point of tastings is to have brewers talk to prospective patrons about the beer being brewed on premises. There is nothing else being served except the hand crafted beer brewed on premises. Bryan said it is not in the best interest of the brewery to have people hanging all day. Bryan reiterated within the code as currently written, there is no basis for the 16 ounce limitation that the community development director arbitrarily chose. The state beer code requires the brewery to abide by the applicable liquor laws. Bryan reiterated the code says nothing about limitation of personal consumption as long as a person is of age and that the brewery complies with state liquor laws. The code is silent on the number of ounces an individual should be allowed to drink. Bryan said the S/C/I zone was created for businesses like this. Bryan said this limitation will implicate the sustainability of this small business. A vendor may not be able to taste all the beers that are being brewed. Bryan said the brewery owners have no interest in becoming a rowdy establishment and have agreed to limited hours of operation. Councilman Romero asked what percentage of the projected gross revenues the tastings will be. One of the owners stated a small portion of the business will come out of the tasting room, less than 5% of the volume. Owner stated they do not want to compete with bars; they want to sell their product to the bars. Owner stated the revenues from the tasting room will help. Councilman Romero asked if other breweries have a limitation on tastings. The owners said they called all the craft breweries in the state and no other breweries have restrictions on volume that is sold. Councilman Romero asked the projected revenues from sales to local bars. The owners said they will distribute throughout the valley and will be personally dropping off the cases and kegs. Bryan noted there are some internal inconsistencies the way the land use code is currently written. Bryan said in the definition of brewery it states "which does not generally receive the public or engage in retail sales" which is does fit with the listing of brewery in the S/C/I zone district definitions 26.710.160. That section states "uses which may use in combination up to 25% of the floor area for accessory retail sales, offices, showroom or customer reception". Councilman DeVilbiss asked if the owners found out in what zone districts other breweries were located when doing their research. Rory said he did not find out; he did 11 Reeular Meetine Asaen City Council Februarv 25 2008 ask. Councilman DeVilbiss noted there maybe some internal inconsistencies in what is allowed as a brewery; however, nothing addresses tastings. Councilman DeVilbiss stated he does not find there has been an abuse of discretion. Bryan said this issue can impinge on the revenues from the tastings as well as selling to vendors. Councilman Skadron asked if a benefit of an operation in the S/C/I is lower rents. Bendon agreed ]ow rent is a benefit in the S/C/I zone. Councilman Skadron said he has to consider the perspective of the entire community and he will be supporting the director's interpretation. Councilman Johnson said most of the testimony has more to do with the code amendments that will be heard in March. Councilman Johnson moved to approve Resolution #15(b) affirming the decision of the community development director; seconded by Councilman DeVilbiss. Councilman Romero agreed the community development director did not abuse his discretion; however, the code can be amended to support the brewery business and that is consistent with the spirit of the S/C/I zone; creating something on site that can be brought to the community. Mayor Ireland agreed the code is contradictory and should be addressed in the S/C/I code amendment. All in favor, motion carried. RESOLUTION #14, SERIES OF 2008 -Appeal of Administrative Decision -Chateau Roaring Fork #43 Councilman Johnson is recused because he lives within 300 feet of the application. Chris Bendon, community development department, said one of the responsibilities of the community development director is to administer the land use code and enforce land use approvals. There are appeals of administrative decisions, which go to the hearing officer. The hearing office is appointed by Council; this position is vacant and has been for some time. The appeal is a review of the record; not a review de novo. Bendon said the authority of the hearing office is delegated by Council and because that position is vacant, the responsibility reverted back to Council. Bendon told Council there was a building permit review in the Chateau Dumont building and staff found the unit was originally designated as a laundry and manager's office. Bendon said the use changed but no building permit or supporting documentation could be found. Bendon told Council the unit was converted to an affordable housing unit in order to resolve the issue. The owner of that unit brought this unit, Chateau Roaring Fork #43, to the attention of the community development department and described as the same situation. Bendon pointed out the Chateau Roaring Fork on Highway 82 and the Roaring Fork river. There are two buildings, A, along the river, and B, smaller building. This unit is in the basement of building B. Bendon presented a print out from the condominium plat 12 Regular Meeting Asoen City Council February 25 2008 and pointed out the basement with unit 43, 43A, 43B and 43C all described as separate condominium interests. Unit 43 is labeled general office, housekeeper and office for manager. Bendon told Council staff contacted the property owner; researched the city files; found the original building permit and the condominium plat. Bendon told Council there is a reference to a 2000 remodel and there is no evidence in the building permit files of that remodel. Bendon told Council staff met with the property owner to try and find evidence the unit was converted to a residence at some point; nothing was found. Bendon said affidavits were submitted to community development department. Bendon told Council he found inconsistencies with some of the affidavits submitted, and his confidence in those affidavits waned. Bendon reminded Council criteria for review are whether due process was afforded the applicant; whether the community development director had jurisdiction and whether that was exceeded and whether the director abused his discretion. Bendon told Council there has been delay because staff was waiting for a hearing officer to be appointed. Staff decided this appeal had to be scheduled with Council. Bendon stated it is the responsibility of the planning director to enforce the code and to enforce land use approvals within the city. Bendon said the last issue is the abuse of discretion. Bendon said Council can uphold the director's decision; Council can reverse the director's decision; Council can also remand this back to the planning director. Bendon requested if Council remands this back to the planning director, they give direction about the new information, additional affidavits from residents of the Chateau Roaring Fork. Bendon said affidavits were presented after he made his decision, which makes them technically not part of the record. Mayor Ireland asked the tax classification of this unit. Bendon said his research at the assessor's office indicates it has been taxed as a residence but he does not know how long. Councilman Romero asked about the term "business unit". Bendon said business use generally is not allowed in this zone and was not allowed when the building was built. Bendon said the expectation was not to have a business on site but to use it in coordination with the condominium's doings. Tom Smith, representing the appellants the Greene family, said there is a due process issue if Council sticks with the record they have. Smith told Council this is the first time he has heard the reference to the Chateau Dumont and the report the Chateau Roaring Fork was similar. Smith said when he received Bendon's determination that this unit did not qualify as residential, reference was made to a conversation with Mr. Barisch. Smith said reports of his client's conversation with Barisch were an explanation that was different than what was related to Bendon. Smith noted there are 4 units in the basement all with the unit #43, three are 43A, 43B and 43C. Smith stated it is their position in the affidavits received by Bendon, there was confusion with the units and unit numbers. Smith said there have been misunderstandings and the applicants have not been able to address these because it would be new information. Smith said full airing of this information might solve this. 13 Regular Meetine Asoen City Council February 25, 2008 Smith said issues are what was the unit allowed to be in 1969 and what does the history of the use tell about that unit. Smith noted that in 1969, one only had to conform to zoning to get a building permit; there was no entitlement process. Smith said they feel this unit was allowed to be residential in 1969, not the other 3 units in the basement. Smith told Council the other 3 units are true, below grade basement units. This unit has air space and an outside entrance and has always been used for residential use. Smith told Council under the city codes this project had more than enough land area for the density of 45 units. Smith said the covenants address business units. The covenants list I 1 business units and there were not I 1 business units; however, the developers were keeping their options open if the zoning changed. Smith said he feels the evidence will show that the unit got built and used as a residence from the beginning. The accessory uses have been in A, B, and C. Smith said the building permit in the record refers to 12 residential units and unfinished basement in the building. There is a note on the permit about a letter from an architect amending the permit; there is no copy of that letter. The 12 residential units got built; this permit does not address the other 4 units in the building. Smith told Council this unit has always been used as a residence; the applicants bought this unit as a residence and paid on that basis. Smith said the applicants would like Council to remand this to the community development director to explore more of the information. Mayor Ireland asked about the entitlement process and the land use approval was for 12 residential units, how were more units gotten. John Worcester, city attorney, said he would have to research that. Mayor Ireland said Council needs a basis for making a decision, whether it was intent or use. Mayor Ireland said he would like to know whether there was an entitlement process, if there was not, what would be the basis for decision, what do the property tax records show, is there a chain of title and are people paying residential or commercial taxes. Councilman DeVilbiss stated he is in favor of remand so that outstanding issues can be researched. Council agreed to remand this with the instruction to the community development director to consider the affidavits, look at the tax record and anything else pertinent. Councilman DeVilbiss moved to remand the matter to the community development department for further action not inconsistent with these proceedings; seconded by Councilman Romero. All in favor, motion carried. Councilman Romero moved to adjourn at 9:30 p.m.; seconded by Councilman Skadron. All in favor, motion carried. Kathr S. Koch, City Clerk 14