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HomeMy WebLinkAboutminutes.council.20001218Regular Meeting Aspen City Council December 18, 2000 Mayor Richards called the meeting to order at 5:00 p.m. with Councilmembers Hershey, Paulson, Markalunas and McCabe present. CITIZEN COMMENTS 1. Georgeann Waggaman speaking on behalf of Les Holst, and Don Erdman, said they want to give Council support on the Isis to see what can be done to keep it a theatre. Council gave concessions to the developer of the Isis in the landuse process to keep this a theatre. The Isis is important to Filmfest and to the community. Ellen Hunt said she is asked a lot on what the community can do to save the Isis. Ms. Hunt urged Council to make decision about the Isis as quickly as possible. Laura Thielin, Filmfest Director, requested Council to do everything they can to save the Isis. Mayor Richards said Council expressed interest to the Isis LLC to see what can be done about the building and about the theatre uses. Mayor Richards said she would like the community to see is they can find multiple uses to save the Isis, like the Red Brick building was saved as a community arts and recreation center. 2. Bert Myron brought up a concern about the trail between Clark's Market and Hallam. Myron said there has been some discrepancies on who actually owns the trail and what could be negotiated with the city. Myron presented drawings of the trail and property lines to Council. Myron told Council he owns the land underneath the trail and requested that the code be followed for the adjoining property owner's fence, that its height not exceed what is allowed in the land use code. Mayor Richards referred this to staff. 3. Mike Maple encouraged Council to get involved in the traffic issue coming into town from down valley. Maple said the situation is very bad. Maple requested police to help smooth the entry to town. Mayor Richards referred this to Randy Ready, assistant city manager. 4. Dale Hower requested that Resolution #160, Series of 2000, Appeal of Code Interpretation Section 26.710.030(A) be continued until January as it involves her property and she cannot be represented by counsel. John Worcester, city attorney, told Council he would research and report later in the meeting. COUNCILMEMBER COMMENTS 1 Regular Meeting Aspen City Council December 18, 2000 1. Mayor Richards wished the racers in 24 Hours of Aspen good luck and good safety. 2. Councilman Markalunas noted the cross-town shuttle has started up again and people can be liberated from their cars. 3. Councilman Hershey reported than in 1876 the outcome of the presidential election was not known until March 1877. 4. Councilman Paulson wished everyone a happy holiday season. 5. Councilman Paulson moved to add a funding request for $2500 from Council contingency to Native American Voices to the consent calendar; seconded by Councilman Markalunas. All in favor, motion carried. 6. Steve Barwick, city manager, reminded Council of the work session th with the Board of County Commissioners December 19 at 4 p.m. with an executive session to follow. CONSENT CALENDAR Councilman Hershey moved to adopt the consent calendar as amended; seconded by Councilman Markalunas. The consent calendar is: · Resolution #158, Series of 2000 - Yellow Brick Management Agreement · Resolution #159, Series of 2000 - Water Rights Application - Kayak Course · Resolution #162, Series of 2000 - Renaming Bass Park "Whitaker Park" · Request for Funds - Native American Voices - $2500 Council contingency Councilman Markalunas read Resolution #162, Renaming Bass Park "Whitaker Park" into the record. Roll call vote; Councilmembers McCabe, yes; Markalunas, yes; Hershey, yes; Paulson, yes; Mayor Richards, yes. Motion carried. John Worcester, city attorney, told Council Ms. Hower's request regarding Resolution #160 should be accepted. Councilman Hershey moved to continue Resolution #160, Series of 2000, Appeal of Code Interpretation Section 26.710.030(A) to January 8, 2001; seconded by Councilman Paulson. All in favor, motion carried. 2 Regular Meeting Aspen City Council December 18, 2000 RESOLUTION #154, SERIES OF 2000 - Historic Preservation State Income Tax Credit Program Fred Jarman, community development department, told Council this resolution authorizes the city to act as the reviewing entity for historic properties to qualify for state rehabilitation projects. Jarman noted state income tax credit is one of the incentives for historic preservation. Councilman Hershey said he favors any incentives for preservation. Mayor Richards opened the public hearing. There were no comments. Mayor Richards closed the public hearing. Councilman Hershey moved to adopt Resolution #154, Series of 2000; seconded by Councilman McCabe. All in favor, motion carried. ORDINANCE #56, SERIES OF 2000 - Code Amendment Techniques to Control House Size Joshua Saslove entered two memoranda into the record, one from him and one from Lorrie Winnerman. Joyce Ohlson, community development department, said these code amendments started in January. There have been public hearings with P & Z and work sessions with Council. Ms. Ohlson told Council staff has been working on a special neighborhood planning process in Cemetery Lane. The most recent meeting was last week and many property owners have been involved in the project. Ms. Ohlson said these property owners are concerned about these code amendments, the vision for their neighborhood, the streetscape and other amenities. Ms. Ohlson reminded Council they were interested in honing the residential design standards by neighborhood. Ms. Ohlson said the Cemetery Lane property owners are displeased with the reduction in house size as relates to their neighborhood plan and asked that Council remember they are in a planning process. Councilman Hershey asked if the Cemetery Lane residents are in a planning process, why not let that process be completed before adopting any code amendments. Mayor Richards said the code amendment on house size control was started before the neighborhood planning work was started. Council may need to see how the two can be merged. Ms. Ohlson said Council also wanted to look at the bigger citywide picture on house sizes rather than neighborhood by neighborhood. 3 Regular Meeting Aspen City Council December 18, 2000 Alan Richman reminded Council he was hired in 1999 to research techniques to control house size. Richman said in 1998 Council adopted residential design standards that address the way houses sit on city streets. Richman said at that time, Council concluded the city also needed to look at dimensional standards like height, setbacks, and floor area ratios. Richman said in 1999 Council adopted the Aspen Area Community Plan, which stated a goal of exploring significant decrease in the FAR allowed in both the city and the county, studying the appropriateness of FAR allowances in how FAR is measured, including the study of volume. This recommendation came from citizen committees in the AACP, and is recommendation #3 out of 99 recommendations. Richman said Council has indicated they continue to hear from citizens about the need to control house sizes throughout the city. Richman said his paper evaluated the way the city currently controls house sizes as well as identified options for changes for control of house size. This was presented to Council, HPC and P & Z in February 1999. At that time, a tour of the city was conducted to view houses that seem to be out of character with the neighborhoods. Richman said the tour pointed out the importance of adopting these controls citywide. Richman said the last time the city adopted house size controls was in 1987 to 1989. At that time, changes were made only to R-6 and R/MF. This time, the entire city was looked at. At the February work session, staff was given direction on specific concerns. These were brought back to P & Z in June, and they held public hearings in Jun, July and August. P & Z then unanimously adopted recommendations for house size control. In September, another work session was held with P & Z, Council and HPC to make sure these amendments were heading in the right direction. Richman said this has been a slow, thoughtful process with a lot of public input. Council originally promised they would not enact a moratorium during this process. The proposed ordinance will not become effect for 90 days to allow people who are in the process to have a chance to get their plans submitted. Richman outlined the basic contents of the code amendments. The first is changes to the sliding scales to establish floor area ratios, intended to reduce 4 Regular Meeting Aspen City Council December 18, 2000 the size of houses and to reduce the allowable floor areas. This is done in a progressive way; the smallest size lots of 6,000 square feet or less will have a reduction of less than 5%. A lot of 9,000 square feet will have a reduction between 5 and 10% and a lot of 15,000 square feet will have a 10% reduction and a lot of 30,000 square feet will have a reduction of 15 to 20%. A house size cap of 5,000 square feet is being recommended. Another recommendation is volume control to address the bulkiness of houses. This is based on plate height, which is the point in a room where the wall meets the ceilings. Plate height is not measured to the top of a vaulted ceiling. A 9 foot measure is used to establish volume. This does not mean the size of rooms in a house is limited to 9 feet. The 9 feet establishes a budget for volume. The third change is the way height is measured. Currently height is measured around the perimeter of the house and does not address greater heights in the interior of the house. If this recommendation is adopted, the city will measure height throughout the house. These changes will affect the size of houses; however, these changes are not radical and are a change to the current system. Richman said he feels this will make the houses more compatible with the neighborhoods. Richman pointed out the rest of the changes are technical corrections, and incentives to make it more attractive to build smaller houses on smaller lots. Richman reminded Council they directed some inclusions in the ordinance and it has been amended since first reading. Council also asked for a summary of the size of lots; there is a table in Council's packet. Council asked staff to meet with HPC to discuss the incentive of 250 foot bonus for a historic landmark lot split. Council suggested this bonus might not be applicable to all lots. HPC agreed and felt that lots in the R-6 zone district should be eligible for that bonus; lots in R-15A should not be eligible as lots are larger and the FAR is larger. Council also requested a list of incentives and bonuses available in the code that would remain in the code after these amendments. Richman noted subgrade spaces remain 100% exempt from floor area calculations if they are completely subgrade. If a portion of the wall is exposed, those areas count. These is not changed from the current calculations. Decks and balconies remain exempt; ADUs remain exempt; garage exemption remains unchanged for dwellings up to 3500 square feet. This 5 Regular Meeting Aspen City Council December 18, 2000 gets reduced for dwellings of a larger size. The exemptions are outlined for Council. Council also requested non-conformities be addressed. Anytime floor area ratios are changed, non-conformities may be created. Council wanted the code to be clear that non-conforming structures are legal and can continue. Richman noted the Code states, "non-conforming structures may be continued in accordance with the provisions of this chapter. Normal maintenance may be performed. Non-conforming structures that are destroyed can be restored". The intent of the code is to allow non- conforming structures to continue and to give special opportunities to landmarks. Council asked staff to take a position on which should be included volume versus change in sliding scale. Staff feels both concepts need to be adopted; however, if they had to chose, they would recommend the sliding scales be adopted. Staff added a few words to clarify the garage exemption. Councilman Hershey asked how much has been spent on consultants for this house size control. Staff said they would answer this at the end of the meeting. Mayor Richards opened the public hearing. Rally Dupps, HPC member and architect, requested Council consider the 90 day window until the ordinance becomes effective. Kiefer Mendenhall, Red Butte resident, told Council he only became aware of this ordinance within the past few days Mendenhall said he is concerned that the citizens do not know every home will be down zoned. Mendenhall said there is a consideration to let the citizens know what this will do to houses in Aspen and they should be better informed. Lorrie Winnerman told Council she attended all the P & Z meetings. Ms. Winnerman referred to her memorandum submitted earlier. Ms. Winnerman said they were told they could not communicate with the city's consultants. Ms. Winnerman said she is concerned about the volume restrictions and the statements that designers can get around them. Ms. Winnerman stated it would be nice if people could look out their windows and enjoy the beautiful town they live in. Ms. Winnerman requested Council to reconsider the volume issue; this is complicated and hard for people to understand. Ms. Winnerman said this will institute one measurement of height and is sensible. Ms Winnerman said this penalizes houses over 3500 square and may eliminate some garages, which will results in more cars on the street. 6 Regular Meeting Aspen City Council December 18, 2000 Joshua Saslove said the city's code should encourage people to develop ADUs and to make them livable. Richman said the existing language on ADUs allows for 2 exemptions. One get half of the ADU exempted if it is detached from a primary residence. One can get half the ADU exempted if it is restricted to mandatory occupancy. Richman noted this language has not been changed at all. One additional exemption has been added; subgrade space is normally be exempt from FAR calculation unless there is air and light. If a subgrade space will be an ADU with light and air, it will be exempt from floor area bonus. Gideon Kaufman said Cemetery Lane residents were asked by the city to take part in a process. People have given time and participated in this and worked with the staff. In the middle of this process, residents are being told that a key element is being taken off the table and Council will decide on FAR at this meeting. An advantage of the Cemetery Lane meetings is to get residents to look at what is going on in the neighborhood, design guidelines and specifics. Kaufman urged Council to hear from Cemetery Lane residents when their process is done. Kaufman said if one compounds this reduction for duplexes with the ADU reduction, the size of each side of a duplex will be close to 2,000 square feet. The garage reduction will further reduce each side of a duplex. Dave Stapleton urged Council to wait until the Cemetery Lane residents are done with their planning process. The Cemetery Lane area consists of full- time, many long-time residents. The house size is part of the plan the residents are looking at. Peter Looran said he does not want to see this code amendment derailed. This house size reduction is something many residents want to see effected. Julie said the volumetrics of this is a concern. Julie agreed there should be controls on house sizes. Julie said if there are large lots that have been owned by a family long time, it should be allowed for a lot split for their family. More time should be given to address some of the citizens' concerns. Marty Shlumberger said the volume control will have an impact on houses and design. Ben Hall urged Council to table this ordinance and let people create homeowners association and design the type of neighborhoods they would like to live in. Fred Peirce, Cemetery Lane resident, said this area either should not be included in this code amendment or there should be a 7 Regular Meeting Aspen City Council December 18, 2000 statement from Council that FAR is on the table when Cemetery Lane group comes in with a plan. Gene Hyder said this is micro management; residents are being downsized continually against their will. Hyder said adopting these code amendments is like closing the door after the cows are gone. People with smaller lots are being penalized. Mike Maple, Cemetery Lane, encouraged Council to let Cemetery Lane neighborhood process as well as all other neighborhood process take their course. Maple said in October 1999, the work plan for character area assessments was introduced. All neighborhoods should be able to assess their neighborhoods. Maple suggested an incentive for community, the opportunity to take family lands and create a lot split for relatives. Maple suggested sometimes more density is what Council should be looking at. Everytime the city downzones, the values are increased. Sheree, Riverside drive, said she looks forward to more input from the various neighborhoods as to how they would prefer to see their neighborhood developed. John Callahan, Cemetery Lane, said the city should take more time and talk to the entire city. People should know what Council is talking about is downzoning. Callahan said it feels like staff is attacking Cemetery Lane residents. Cynthia Callahan told Council residents on Cemetery Lane did not feel the meetings were for downzoning. John Emrick, Mountain View Drive, asked Council to let the neighborhood process continue. Ian Long stated he is against this ordinance. Eric Phillips, Cemetery Lane, opposes this ordinance; it is close to a taking. Phillips said the city is harming people who do not have large properties. Helen Klanderud said the city could have used their regularly scheduled neighborhood meetings to give a summary of this code amendment. This would have been more broad Bob Myers, Snowbunny Lane, said this is a neighborhood issue, not a city planning issue. Myers said if Council is intent on passing a house control size, they should allow neighborhoods to modify it according to their neighborhood desires. Stewart Lusk said Ordinance 30 was an attempt to control house size and it is still not determined what that ordinance has done. Roger Hunt told Council he favors this ordinance. Hunt said he has been arguing for over 10 years that FAR alone does not address bulk and that volume had to be added. 8 Regular Meeting Aspen City Council December 18, 2000 David Brown said this ordinance will not necessarily reduce volume. Brown said Council needs to look at unintended consequences, like a reduction in transfer tax and permit fees, and an increase in staff for enforcement. Brown said as written, these amendments will be interpreted different ways through the years and as it will be interpreted, it will not reduce volume. Paul Rasmussen said there are ways to address the environmental impacts of construction. Rasmussen said he is concerned with tinkering of the rules and micromanagement by government. Rasmussen said Aspen has the most onerous and expensive rules in the country. Alice Bryan, Cemetery Lane, said she would like the Cemetery Lane planning process be finished before this ordinance is adopted. John Muir said the volume standard is a design issue more than reduction in floor areas. Muir said the true impact of volume standard is not known and the city should make sure the citizens know this before adopting this ordinance. Mayor Richards closed the public hearing. Ms. Ohlson told Council ceiling heights are not dictated by this ordinance; the ordinance does not state a ceiling can only be 9 feet high. The ceiling heights get factored into the maximum allowable volume for a house. This is determined by 9 times the allowable floor area. Councilman McCabe said there are misunderstandings with this ordinance and its impacts. Councilman McCabe said the neighborhood planning for Cemetery Lane seems to be in conflict with this amendment. Councilman McCabe said these amendments are not onerous; however, he would like more input from the community before adopting the ordinance. Ms. Woods told Council this information has been presented to the Cemetery lane residents. The plans for Cemetery Lane will not be presented to P & Z until spring. Councilman McCabe said the city has a duty to the rest of the community to make sure they understand these amendments. Ms. Woods said the time this would take depend on whether staff goes to every neighborhood and puts flyers up, runs meetings, has information papers. Councilman Markalunas said he feels volume controls is important to reduce the bulk and mass of houses. Councilman Markalunas said large homes impact the entire neighborhood. Councilman Markalunas said the city needs to find a balance between taking value away from property and protecting neighborhoods. One's right to develop their property should not infringe on 9 Regular Meeting Aspen City Council December 18, 2000 their neighbor's rights. Councilman Markalunas empathizes with people who own "tear downs" and their concern about what can be rebuilt. Mayor Richards encouraged Council to adopt this ordinance and to work with Cemetery Lane so that their neighborhood plans can go forward and they can come back to Council and request any changes that might be necessary. Mayor Richards said both the AACP and many citizens have brought up to Council to try and find a way to tackle the monster home issue. Ordinance #30, 1995, was the outgrowth of design charettes and work with the architect community. At that time, people said rather than institute a floor area reduction, to wait and see if the design review standards address monster houses. The FAR was left out of the discussion in 1998; however, it was a consensus of the committees working on the AACP was that this should be examined. Mayor Richards said Council hears continually from people whose views have been blocked, the neighborhoods being changed, and how individual property owners have been affected. Mayor Richards said when a community loses its character, everyone's property values suffer. Mayor Richards noted the city's land use code has resulted in the highest property values in the country. Mayor Richards said for Council to review floor area ratios is appropriate; the last house size review was in 1987 to 1989. These are minor amendments and received a unanimous recommendation from P & Z. Councilman Hershey supports delaying adoption of this ordinance for 4 or 5 months in order to finish the process with Cemetery Lane neighborhood and to get input from other neighborhoods. Councilman Markalunas said he feels the town has lost a lot because of the unrestrained development. This has not happened as much in the Cemetery Lane area. Ms. Ohlson told Council they have authorized up to $27,150 for this project. Ms. Ohlson told Council it is not unusual to request the public work through city staff rather than directly with consultants. This makes it easier to keep track of the contract. It is the role of staff to answers citizen's questions. Councilman Hershey said it is not his job to dictate how people live and what their house should be like. This is not the role of government. Councilman Paulson said he feels the environmental concerns are the most important to be addressed and if they are not, there will not be a world to 10 Regular Meeting Aspen City Council December 18, 2000 live in. Councilman Paulson pointed out the average size of houses has doubled since 1950 while the average number of people in the home has dropped from 3.6 to 2.6. Larger houses consume more resources both to construct and to operate; a 5,000 square foot house consumes 3 times as much material to construct as a 2100 square foot house. There are limited resources on this finite planet. Councilman Hershey moved to delay this ordinance for 4 months to give the Cemetery Lane neighborhood and other neighborhoods the opportunity through staff to complete the process that has already begun; seconded by Councilman McCabe. Mayor Richards said there is a 90 day window in the ordinance to allow people adequate time to submit plans before this ordinance takes effect. Mayor Richards said this is a reasonable ordinance and a minor reduction in floor area ratio. Mayor Richards suggested Cemetery Lane complete their planning process and return to Council for amendments if necessary. Mayor Richards said another 5 month delay could make this an issue in the spring campaign, and then the ordinance would not take effect for another 90 days. These amendments might not go into affect until September or October 2001. This would give time for more over-large houses to be built. Mayor Richards said it is important to move these amendments to conclusion. Mayor Richards said a 5 to 10% reduction in floor area and removing the ability to build an 8,000 square foot house in the city does not seem objectionable. Roll call vote; Councilmembers Markalunas, no; McCabe, yes; Paulson, no; Hershey, yes; Mayor Richards, no. Motion NOT carried. Councilman Markalunas moved to adopt Ordinance #56, Series of 2000, on second reading, amending Section 19 that the effective date of the ordinance be 120 days or April 18, 2001, and in the event there is something that does not work or unintended consequences to review the ordinance with suggestions from Cemetery Lane neighborhood; seconded by Councilman Paulson. Councilman Markalunas said he has seen too many properties be impacted by overdevelopment. 11 Regular Meeting Aspen City Council December 18, 2000 Richman noted that "per unit" should be added to make sure it is clear that the garage exemption is per unit. Councilman Markalunas amended his motion to make that change to Ordinance #56; seconded by Councilman Paulson. Kaufman requested Council make sure the Cemetery Lane planning process is giving enough staff time to be complete in this 120 day period. Kaufman said when the Cemetery Lane residents come back to Council, they should be talking about the original FAR, not have to use the FAR instituted in this ordinance for any possible changes. Mayor Richards said this process should be fresh to both Council and staff. Mayor Richards said staff should report back on any additional staff needs for this process with Cemetery Lane. Ms. Woods asked Council if they were receptive to Cemetery Lane neighborhood going forward with their process and bring to Council different recommendations than are contained in these code amendments. Mayor Richards said that is the intention of Council. Councilman McCabe agreed with the environmental impacts of large houses will take hold in Pitkin County. Councilman McCabe said people cannot continue to ignore the effects accumulating from growth; number of trees cut down, coal, gas and effect on environment. Councilman McCabe said he would prefer that neighborhoods have more time to give Council their input on these amendments. Mayor Richards said the city has had limits on house size since 1989. This ordinance is a minor amendment to those limits. These amendments have been under review for over a year. Mayor Richards noted the city did not review house sizes under a moratorium but allowed people to submit plans and continue with development. Roll call vote; Councilmembers Markalunas, yes; Paulson, yes; Hershey, no; McCabe, no; Mayor Richards, yes. Motion carried. RESOLUTION #155, SERIES OF 2000 - 303 S. Cleveland - Appeal of HPC Decision Fred Jarman, community development department, said this is an appeal of an HPC decision denying a request for 303, 305, 307 S. Cleveland to be removed from the historic inventory. Jarman reminded Council they have the authority to consider an appeal of HPC. Council considers this appeal on the record established by HPC and shall affirm HPC's decision unless 12 Regular Meeting Aspen City Council December 18, 2000 Council determines there was an abuse of discretion or denial of due process by HPC. Jarman noted this property was first listed to the historic inventory in 1992 at which time the city followed all notice requirements and rated the property with the same standards used today. Jarman told Council in 1996, the applicant met with the city to discuss development potential for his property. At that time, he found out this property was listed on the inventory and subject to HPC review. The applicant, Charles Tower, then worked with the city on landmark designation for his property, which was reviewed and approved by HPC. The applicant requested his property be removed from the historic inventory and was told the time to do this was at the 5-year interval updates of the inventory. Jarman said this should have occurred in 1997; however, that process was delayed 2 years because of staff challenges. Jarman said the property was reviewed and remains on the inventory. This update was properly noticed. Jarman said there was a public hearing before HPC November 15, 2000, on the delisting of this property. HPC voted unanimously to leave the property on the inventory by rating the property as "contributing". This is defined in the city's land use code as "all those historic, architecturally significant resources that do not meet the criteria for significant but that these resources have maintained their historic integrity or represent unique architecture design". Jarman maintained that staff and HPC followed the correct process in listing 303 S. Cleveland. The community development department provided proper notice and met all code requirements. HPC reviewed this request for removal of this property from the inventory with correct and applicable criteria within its authority. HPC denied approval for removal of this structure. Jarman noted the standards used when listing the property in 1992 are the same standards used when considering leaving it on the inventory. Jarman reiterated the process was followed, public notices was provided, public hearings were held, and recommended that this property remain on the inventory. Mike Hoffman, representing Charles Tower, said his client has not been treated fairly. Hoffman said Aspen's process for historic inventory does not have adequate standards and guidelines to insure lawful decisions. Hoffman suggested Council listen to the facts, review the HPC records, consult with staff and make a final decision at a continued hearing. 13 Regular Meeting Aspen City Council December 18, 2000 Hoffman said there are two issues in this case; what happened initially to the subject property and the current process. Hoffman said his client was ill- treated both times. Hoffman told Council in 1992, the structures at 303, 305 and 307 S. Cleveland were 44, 42 and 40 years old and were subject to the standards in the Municipal Code. Because these structures were less than 50 years old, HPC had to find them as being "outstanding examples of more modern architecture" in order to place them on this historic inventory. Hoffman pointed out this finding did not occur in 1992. HPC set a public hearing, the owner of the property never received anything informing him of this meeting. The city records do not show Tower received any notice; the property was not posted. Hoffman said the applicant was not aware of anything about these structures that might suggest they would be listed on the historic inventory. Each building was younger than 50 years old and none of the buildings had any architectural importance. Hoffman noted when HPC included these structures in 1992, there was no finding that these structures were "outstanding examples of more modern architecture". Hoffman pointed out Tab A, page 7, HPC minutes, comments by Roger Moyer, HPC, noting these structures were not historic and HPC had not discussed that era yet. Holst noted that as long as a building maintains historic scale, it still has historic value and should be maintained on the inventory. Hoffman stated any standard used in making a decision was exceedingly vague. Hoffman told Council the applicant did not learn until 1996 that his property was on the inventory. In discussing redevelopment with staff, Tower was told the likelihood of being able to demolish his structures was extremely low. Hoffman pointed out Tabs B, C and D, letters from Amy Guthrie, historic preservation officer, regarding potential development of the subject property. Hoffman said the applicant was caught in regulatory gridlock so he requested to be removed from the inventory in 1997, at which time he was told removal from the inventory could not be considered until next regular review of the inventory scheduled for 1999. Hoffman pointed out the inventory was reviewed in 1992 and the land use code requires it be reviewed every 5 years. The federal certified local government program, in which Aspen participates, requires 5 year review to keep this process accessible. The review of historic inventory did not occur until 2000, and if applicants had not pushed for that review it still would not have been done. 14 Regular Meeting Aspen City Council December 18, 2000 Hoffman told Council the applicant asked HPC to review the 1992 inventory based on these facts. The assistant city attorney refused to allow HPC to consider this request responding it was beyond their jurisdiction. Hoffman pointed about Tab F, page 11, lines 25 through 29, comments about the subject's property not fitting within the "rustic" category. Hoffman told Council Tower has cooperated with HPC and staff for 4 years and does not want to take this issue to court. Council can right these wrongs John D. Feinberg, HPC expert witness, principal of the Collaborative, a historic preservation firm in Boulder, noted that the city's ordinance references the Secretary of Interior's standards and National Register process. Feinberg quoted, "It is not the intention of the historic preservation commission to include insignificant structures for sites on the inventory". Feinberg said the definition for significant is that of the National Register. The city's code also states than structures less than 50 years of age have to be outstanding modern architecture. Feinberg stated the record is clear that decision was not made in 1992 or 2000. Feinberg told Council all 3 of these structures were younger than 50 years in 1992. Feinberg reiterated no place in the record does it state these structures are exceptional or excellent. Feinberg said he cannot figure out how any property that is not significant can be put on the historic register. Feinberg said if the city feels there is an architectural style that is critical to be protected, they must be able to show that there is a link between the history and the building. Feinberg said there is no connectivity between rustic architecture and the development of Aspen as a ski area. Councilman Hershey moved to suspend the rules and extend the meeting to 9:45 p.m.; seconded by Councilman McCabe. All in favor, motion carried. Feinberg pointed out that architecture described in 1992 for the properties at 303, 305, 307 S. Cleveland was "panabode", which is described as a common building. Later testimony states these buildings were unique. Feinberg said these buildings are not outstanding if they are described as common. Feinberg said "rustic", as a style does not exist at the national level. It is recognized by the state of Colorado, which definition the applicant sent to HPC, which is Tab I. Feinberg said these structures fail to meet the definition of rustic. Feinberg said the contributing category is not significant but by the criteria of the National Register one could determine 15 Regular Meeting Aspen City Council December 18, 2000 that those resources have maintained their historic integrity or that they represent unique architectural design. Feinberg said these structures cannot be unique if the are common, which is what the HPC found in 1992. So the structures must maintain their historic integrity and there has be no discussion of integrity. Feinberg said these structures have been changed. Feinberg said there can be no conclusion that this was done right; historic context does not match up with the findings of the history; the rustic architecture style is defined loosely and it only meets 2 or 3 of the 7 characteristics. Feinberg said the city's ordinance is in conflict and does have some misreferences. Feinberg said there must be a finding of significance; there must be a finding of integrity and for structures less than 50 years, the HPC did not find these. Councilman Hershey asked if Jim Markalunas should recuse himself because he will considering a finding on action of Lisa Markalunas, his daughter. Hoffman said they considered this and do not think it is necessary. Hoffman said the HPC has not used a definable process in establishing this subject property on the historic inventory. Hoffman said the HPC did not establish any link between these structures and an important part of Aspen's history. Hoffman said HPC's outcome was arbitrary and capricious and when combined with the lack of due process their findings must be overturned. Julie Ann Woods, community development department, reminded Council they are looking at lack of due process or abuse of discretion of a public hearing held November 15, 2000, before the HPC. The minutes of th September 13 was the opening hearing for all properties on the inventory. The actions from this meeting were rescinded at the following meeting so those minutes are moot for this particular consideration. Ms. Woods noted th on November 15 , a hearing specifically for this property was held and that is where Council should focus the issues of lack of due process and abuse of discretion. Ms. Woods noted the applicants stated they disagree with the HPC decision. That is not what Council is considering; Council is considering lack of due process or abuse of discretion; not the merits of the decision but how the HPC got to that decision. Properties have to be fit into certain categories, according to the state guidelines. Ms. Woods said as part of the process HPC can categorize properties as significant, contributing, 16 Regular Meeting Aspen City Council December 18, 2000 th supporting or non-contributing. At the hearing November 15 , HPC said they believe this property at 303, 305, 307 S. Cleveland was contributing. The HPC never said this property was significant nor was there a representation made that HPC said this property was significant. Ms. Woods noted "outstanding" comes up as it relates to establishing the inventory, "the inventory of historic sites and structures shall include all structures in the City of Aspen which are at least 50 years old and which continue to have historic value and such other structures identified by the HPC as being outstanding examples of more modern architecture". Hoffman said there is no connection between the categories listed by Ms. th Woods and the direction quoted above. Hoffman said the September 13 meeting is important because HPC members admitted they made their decision about subject property at this meeting. Hoffman said the essence of due process and abuse of discretion is a reasonable decision by the HPC and the applicants suggest the HPC did not act in a proper manner because they did not act pursuant to guidelines. Hoffman said there is no contest as to th whether the property fits the "rustic" category. In the November 15 meeting, the HPC members agreed these structures do not meet the majority of the characteristics of the rustic style. Hoffman stated HPC has to work under guidelines that are understandable by the public. Worcester asked about the application filed for landmark designation by the applicant and asked if an expert was used for that. Hoffman said Glenn Rappaport filed the application. Jarman pointed out the application is exhibit B. There are 5 criteria for landmark designation and one has to meet two of these. Jarman told Council the applicant went through the HPC and P & Z process and then withdrew prior to Council action. In that application, historical importance was answered that the cabins built during 1948 - 1952 were intended to acknowledge the beginnings of the tourist industry created by the establishment of skiing in Aspen in 1946. The second criteria addressed, architectural importance, the applicant's finding was "that although not magnificent examples of more glorious architectural styles, these cabins do clearly represent architectural style that was both practical and easy to construct". The last criteria was neighborhood importance and the finding was, "the small scale of these cabins was very much like other small miner's cabins that once dotted Aspen's east end. This character has changed dramatically over the past years as lodges, condominiums and large homes have been built. Even though these smaller 17 Regular Meeting Aspen City Council December 18, 2000 structures are no longer part of a larger context, they help to retain the sense of the past and point our differences . .” Chuck Tower, applicant, told Council he was not aware his property was listed on the historic inventory. Tower said when he talked to staff, he was advised the property could not come off the inventory and he should apply for landmark designation in order to do something with his property. Tower said as he worked through the process, there was some question whether these would be landmarked and whether he would be able to do anything with his property. Hoffman asked Council whether it is fair to assume the application for landmark designation is an admission by the applicant that his properties are important historically, when the land use process forces one into make these choices. Mayor Richards opened the public hearing. Ron Kanan said he feels there is a pattern in how staff and HPC handle applicants. Kanan said things that are offered as "carrots" are not brought up in meetings before HPC. Kanan said he and the applicant felt they were treated unfairly and expected an appeal period. There is an appeal period; however, it is only 30 days. Kanan suggested the city extend that appeal period and also make sure applicants are aware of the appeals process, the length of it, and that when it is over, there is no other recourse. Jack Simmons, Holland Ski Lodge, told Council this property was designated in 1995 as a historic building. Simmons said he read the criteria, assumed this building would not meet the criteria and would not be designated. Simmons said when he wanted to make a minor adjustment to the building, he found out the building was designated. Simmons stated it is unacceptable to put property owners on the historic register without them being represented at the meeting. Simmons said Council and the citizens should look at the city processes, how they work, and how they treat residents. Simmons said residents have to hire lawyers everytime they deal with the city and its processes. Yasmine dePagter said HPC has a lot controversy recently. Ms. DePagter recommended Council and HPC try and solve some of these dilemmas. Ms. DePagter suggested these cabins be moved somewhere, saved and turned th into housing or an arts facility. Ms. DePagter said the September 13 meeting at HPC was horrendous. Ms. DePagter pointed out applicants, like 18 Regular Meeting Aspen City Council December 18, 2000 Chuck Tower, have had to go through this for 8 years and have to suffer hearings, which are scary. Ms. Depagter suggested trying to find a way to make these things work for everyone. Neil Hirst defended citizens who serve on the HPC. Council has said they did not give HPC the guidelines and direction they needed. Hirst pointed out HPC does not have any power to abuse; Council has the power. Hirst said if there is anything wrong with the process, it should be addressed by Council, not HPC. Hirst noted Council has directed HPC to preserve a broad representation of Aspen's architecture. Councilman McCabe moved to suspend the rules and extend the meeting to 10:45 p.m.; seconded by Mayor Richards. All in favor, motion carried. Neil Ross said he feels there is evidence of lack of due process and abuse of discretion. Ross noted the process for this applicant has gone on for 8 years. There has been no appeal time. Ross said for over 25 years the applicant has provided affordable housing for this community. Mayor Richards closed the public hearing Mayor Richards asked if the applicant if they have more to add to their case. Hoffman said during deliberation, the applicant is allowed to respond to Council statements. Hoffman said he is willing to rest their case if he can reserve the right to respond. Worcester said Council can ask applicants to speak and to have staff respond to questions; Council does not need to reopen the public hearing. Mayor Richards noted Council has directed staff to review HPC process, the additions to the inventory and the standards and is hiring an expert to begin this work in January. Mayor Richards said Council will look at these standards decide whether rustic is important to this community; whether early ski area development is important or not. Mayor Richards said finding an abuse of discretion or lack of due process of one of the city's boards is difficult. Council does not have the ability to disagree with a particular decision but only to consider abuse of power. Mayor Richards said she would prefer to wait to the overall review of historic standards. The applicants requested time to confer on whether to discuss a settlement or alternative and to come back before the last agenda item. 19 Regular Meeting Aspen City Council December 18, 2000 ORDINANCE #58, SERIES OF 2000 - Code Amendment Security Signs Councilman Hershey said this is a constitutional issue and Council should adopt this ordinance. Councilman Hershey moved to read Ordinance #58, Series of 2000; seconded by Councilman Markalunas. All in favor, motion carried. ORDINANCE NO. 58 Series of 2000 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING SECTION 26.510.030(B) TO CHANGE THE REGULATIONS RELATING TO RESIDENTIAL SECURITY SIGNS AND RESIDENTIAL NAME AND ADDRESS SIGNS. Councilman Hershey moved to adopt Ordinance #58, Series of 2000, on first reading; seconded by Councilman McCabe. Mayor Richards asked if staff could add "neutral color" of the sign back into the ordinance and to have a finding that the white and blue signs meet that definition. John Worcester, city attorney, said he will ask the security company if they would object to "neutral color". Worcester said that is a vague term. Council agreed to direct staff to investigate whether the security company will agree to "neutral color" and to amend the ordinance by second reading. Councilman Hershey said he supports this only if the security company agrees. Councilman Paulson asked staff to look into lighting of these security signs. Roll call vote; Councilmembers Paulson, yes; McCabe, yes; Hershey, yes; Markalunas, yes; Mayor Richards, yes. Motion carried. RESOLUTION #160, SERIES OF 2000 - 303 S. Cleveland - Appeal of HPC Decision Chuck Tower said it could be a win/win situation if his cabins are moved. Tower said he will pay for the moving if the city finds a location to move these cabins. John Worcester, city attorney, suggested staff and the applicant have time to work out the details. If the cabins are moved, the city would take title to them. Mayor Richards said the city finding sites not controlled 20 Regular Meeting Aspen City Council December 18, 2000 by open space money will be difficult. Mayor Richards said she is willing to have the staff explore this. Councilman Hershey moved to continue Resolution #160, Series of 2000, to January 22, 2001; seconded by Councilman Markalunas. All in favor, motion carried. LIGHT POLE BANNER POLICY John Worcester, city attorney, told Council there has been a request to allow a non-profit group to post banner and/or flags on light posts owned by the city on Main street. The municipal code prohibits the erection of any signs on public rights-of-way unless Council gives permission. Worcester noted the city has disallowed these requests except for special circumstances; the th 50 anniversaries of the MAA, the Aspen Institute, the Skiing Company, the super bowl win of the Broncos. Staff has turned down requests by Theatre in the Park, HBO Comedyfest, and Vogue Comes to Aspen. Worcester stated governmental entities may not unduly regulate First Amendment rights. Worcester said when a Council adopts a policy allowing use of public rights-of-way to be used for First Amendment activities, they have opened this up to the public in general and Council cannot discriminate between groups based on content. Worcester said his concern is that Council ought to decide whether to allow banners and flags to be displayed on city-owned light posts. Worcester recommended Council allow staff to complete their 2001 work plan, which includes a policy on banners in public rights-of-way. Worcester reminded Council they directed staff to add this to their work plan after World Cup requested flags on Main Street. At that time, Council agreed this was an exceptional circumstance as Aspen was granted World Cup races after 4 years. Worcester noted the city's policy has been to not allow annual events to celebrate their events. Councilman Hershey said the issues of banners on public rights-of-way and the request from the Aspen Gay and Lesbian Community ought to be two separate issues. Councilman Hershey suggested allowing the Gay and Lesbian Community to use the light poles as the city policy is not complete and then establish a policy. Worcester pointed out the Municipal Code prohibits any signs on any public right-of-way, including light posts, without permission of City Council. Worcester said Council has granted this permission in very limited situations. Worcester said the Aspen Gay and 21 Regular Meeting Aspen City Council December 18, 2000 Lesbian Community's request is to commemorate an annual event, which does not fit the criteria as previous approvals. Worcester said if Council allows this request, they will be put in the position of having to decide case by case whether flags should be allowed on light poles. Worcester said he does not want Council having to decide on content of flags on light poles. Worcester said Council should decide whether or not to allow flags on Main street. Michael Younger, Aspen Gay and Lesbian Community, told Council Food and Wine has been allowed to have flags as has Winterskol. Mayor Richards said Winterskol is a city-sponsored event. Younger pointed out the city's fee schedule includes a rate for installing these flags. Younger said Gay Ski Week has been occurring in Aspen for 24 years, and a lot of people come to town for this event. Councilman Hershey said without a policy, the city would be allowing flags on public rights-of-way every week. Worcester reiterated his recommendation that the city come up with a content neutral, non-discriminatory policy for the use of city light poles for annual events. Mayor Richards said she has dealt with this issue over the past 10 years, and many times the city has just denied the request. The Special Events Committee has turned this type of request down without even bringing the request to Council. Mayor Richards said the issue is the commercialization of Aspen, does the public want flags on Main Street 80% of the year, and the staff will become the arbitrator of who gets what week if there are any disputes. Mayor Richards said Council has in the past recognized significant events in local organization's development. Mayor Richards said the city's policy should be to allow the use of public rights-of-way for significant landmark anniversaries of local organization or for community city-sponsored events, like Winterskol. Councilman Markalunas agreed he would like to avoid commercialization. Councilman Markalunas stated he wants to wait for staff's recommendation on flags, banners and signs on flagpoles. Councilman Markalunas said there are already too many signs on the lightpoles. Andrew Kole suggested when the policy is set, staff consider limiting the number of lightpoles available for banners/flags. Kole said the policy could also state there be no verbiage on the banners or flags. Councilman Paulson suggested designating a park to display flags of groups that are holding events in Aspen. The city's policy could limit Main street displays to major 22 Regular Meeting Aspen City Council December 18, 2000 anniversaries and still have a place to put one to two flags of groups convening in Aspen. Someone stated Aspen has the only Gay Ski week in the United States and allowing banners or flags would be celebrating Aspen's accepting of diversity. Steve Barwick, city manager, noted there have been several suggestions and that Council should let their staff write this policy, which is in the 2001 work plan, and come back having reviewed all suggestions. Councilman McCabe supports a moratorium on banners or flags on lightpoles of public rights-of-way for any group. Councilman McCabe said he would allow the US flag, Colorado flag and Aspen flag in the rights-of- way only on National holidays. Councilman McCabe said if the policy is to allow usage of public rights-of-way, there will be more demand than supply and staff and/or Council will have to chose who gets to use the right-of-way. Councilman Hershey said the city's policy has not been clear and suggested letting the Aspen Gay and Lesbian group be able to use the rights-of-way until there is a policy. Bert Myrin suggested approving any request until the city has an adopted policy. This way, the city can see why type of request comes up and what problems there may be. Mayor Richards stated she feels flags in the public rights-of-way should only be for significant anniversaries of a group's history. Mayor Richards said she does not support every group's annual event becoming a flag exchange on Main street. Mayor Richards said approval of any particular request before Council adopts a policy may be setting a precedent before the policy is adopted. Councilman Hershey said the two issues should be separated. The policy should be brought to Council; however, in the meantime the Aspen Gay and Lesbian Community has a legitimate argument that the city has allowed flags. Councilman Hershey agreed with a limited solution just for this year. Councilman McCabe moved to ban all flags on Main street except US Flags, Colorado flags, Aspen and Pitkin county flags; seconded by Councilman Markalunas. Mayor Richards said it is a good thing to be able to use the city's public rights-of-way to celebrate significant events of locally based organizations and to adopt a policy that would allow that. Mayor Richards said she does 23 Regular Meeting Aspen City Council December 18, 2000 not support a policy made at this late hour banning all flags on public rights- of-way which would eliminate those significant anniversaries of community events. Councilman Hershey supports a compromise of one flag somewhere on city property like Paepcke park, welcoming groups. Councilman McCabe withdrew his motion; Councilman Markalunas withdrew his second. Councilman McCabe moved to put a moratorium on banners/flags on city rights-of-way except for at least 25 year anniversaries of significant community organizations, which will allow Council to review the policy at a later date, and to allow traditional US Flags on holidays until refinement of policy; seconded by Councilman Markalunas. Worcester pointed out that is the current city policy and Council should allow staff to come forward with a written policy. Roll call vote; Councilmembers Paulson, no; Markalunas, yes; Hershey, no; McCabe, yes; Mayor Richards, yes. Motion carried. Councilman Paulson said he prefers having one place to display flags. Councilman Hershey said this group deserves the right to put up their flags. Councilman Paulson moved to have Paepcke Park be the chosen location for whatever flags with one pole with recommendation from the parks department for location of the pole for this season, first come, first served, until community development department comes up with a policy; seconded by Councilman Hershey. Mayor Richards noted for the last decade the banners over Main street have been enough for local groups. Mayor Richards said Council may have made a mistake in allowing a more commercial use of the flagpoles for World Cup and now is the time to correct that mistake. Roll call vote; Councilmembers Markalunas, yes; McCabe, no; Hershey, yes; Paulson, yes; Mayor Richards, no. Motion carried. Councilman Hershey moved to adjourn at 11:45 p.m.; seconded by Councilman McCabe. All in favor, motion carried. 24 Regular Meeting Aspen City Council December 18, 2000 Kathryn S. Koch, City Clerk 25 Regular Meeting Aspen City Council December 18, 2000 CITIZEN COMMENTS ................................ ................................ .............. 1 COUNCILMEMBER COMMENTS ................................ ........................... 1 CONSENT CALENDAR ................................ ................................ ............. 2 · Resolution #158, Series of 2000 - Yellow Brick Management Agreement ................................ ................................ ............................... 2 · Resolution #159, Series of 2000 - Water Rights Application - Kayak Course ................................ ................................ ................................ ...... 2 · Resolution #162, Series of 2000 - Renaming Bass Park "Whitaker Park" ................................ ................................ ................................ ........ 2 · Request for Funds - Native American Voices - $2500 Council contingency ................................ ................................ .............................. 2 RESOLUTION #154, SERIES OF 2000 - Historic Preservation State Income Tax Credit Program ................................ ................................ ......... 3 ORDINANCE #56, SERIES OF 2000 - Code Amendment Techniques to Control House Size ................................ ................................ ...................... 3 RESOLUTION #155, SERIES OF 2000 - 303 S. Cleveland - Appeal of HPC Decision ................................ ................................ ................................ ...... 12 ORDINANCE #58, SERIES OF 2000 - Code Amendment Security Signs . 20 RESOLUTION #160, SERIES OF 2000 - 303 S. Cleveland - Appeal of HPC Decision ................................ ................................ ................................ ...... 20 LIGHT POLE BANNER POLICY ................................ ............................. 21 26