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Home My WebLink Aboutcoa.lu.su.Tippler.A047-00 .~ ,,-. , / ~..\>o .-'-' r-- DEVELOPMENT ORDER of the City of Aspen Community Development Department This Development Order, hereinafter "Order", is hereby issued pursuant to Section 26.304.070, "Development Orders", and Section 26.308.010, "Vested Property Rights", of the City of Aspen Municipal Code. This Order allows development of a site specific development plan pursuant to the provisions of the land use approvals, described herein. The effective date of this Order shall also be the initiation date of a three-year vested property right. The vested property right shall expire On the day after the third anniversary of the effective date of this Order, unless a building permit is approved pursuant to Section 26.304.075, or unless an exemption, extension, reinstatement, or a revocation is issued by City Council pursuant to Section 26.308.010. After Expiration of vested property rights, this Order shall remain in full force and effect, excluding any growth management allotments granted pursuant to Section 26.470, but shall be subject to any amendments to the Land Use Code adopted since the effective date of this Order. This Development Order is associated with the property noted below for the site specific development plan as described below. Kettle Corporation C/o Sunny Vann. 230 E. Hopkins. Aspen, CO 81611 Property Owner's Name, Mailing Address and telephone number 535 E. Dean St. Legal Description and Street Address of Subject Property Extension of Vested Rights Written Description of the Site Specific Plan and/or Attachment Describing Plan Resolution 66-2000, 5/22/00 Land Use Approval(s) Received and Dates (Attach Final Ordinances or Resolutions) June 3. 2000 Effective Date of Development Order (Same as date of publication of notice of approval.) February 26, 2003 Expiration Date of Development Order (The extension, reinstatement, exemption from expiration and revocation may be pursued in accordance with Section 26.308.010 of the City of Aspen Municipal Code.) Issued this 3rd day of June, 2000, by the City of Aspen Community elopment Dir ctor. Ann Woods, Community Development Director J '",II' ""',"'- " .~ I~' PUBLIC NOTICE Of DEVELOPMENT APPROVAL Notice is hereby given to the general public ofthe approval of a site specific development plan, and the creation of a vested property right pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 535 E. Dean St., by Resolution of the City Council numbered 66, series of 2000. For further information contact Julie Aun Woods, at the AspenlPitkin Community Development Dept. 130 S. Galena St, Aspen, Colorado (970) 920-5090. s/City of Aspen Account Publish in The Aspen Times on June 3, 2000 / ,. . " () y::r.e. MEMORANDUM To: Mayor and City Council TlIRlT: Steve Barwick, City Manager -:5p{J Julie Ann Woods, COlrummity Development Director Joyce Ohlson, Deputy Director FRO;\f:.6' fred Jarman, Planner Rl;: Tippler Townhomes EUension of Vested Rights DAn:: May 22, 1000 ApPLICANT: Kettle Corporation, CA\,ner! SirousSaghatoleslami, Applicant Rt;PRF.SE:\TA,T1'iE: SwmyVann Vann Associates, LLC PARCELID: 2737-182-96-033 ADDR~;SS: 535 East Dean Street, Aspen,CoJorado81611 ZONING: LrrR (Looge !Tourist Residential) CUI.RENT L",,,,o USE: The Tippler NightcluhandaRestaurantUse Clll1'ently occupy the site. PROPOSED LAND list;: The Tippler TO"'l1homes development, approved on May 26, 1998, involves the demolition of existing structures and the subsequent development offour (4) fi:ee markelresidentiaJunilsandfour(4)deed restricted Wlits in a multi-family townhome strucnue. KnilEW PROCI:Pl'RE: l::xren.~ion of Vested Righ($. City Council maybyresolutionatapublieheanngapprove an extension of vested rights. -"'"llii,'---' ~ Back ofTipplu Nightclub facing west ; I I , I .'-'" c,-... '-:;-c STAFF COMMENTS: .,,") ted by The applicant, SirouS Saghatoleslami (and Kettle Corpora~lOn, owne~ ' repres~ S Vann of V ann Associates, LLC, re uests an extenslOn ofth~ TIler To omes D'::io ment's vested ro ert ri ts status. lnitially, City .Counc~l granted approval of the . t . May 26 1998 subsequent to this approval, a neIghborIng property owner filed a pro)ec on ,. . . til d th 1 . t all ged Rule 106(a)(4) complaint for judicial review. The nelghbo~, who. 1 e e co~p am, e the approved project 1) violated the City's open spac~ requI~e.me~ts and 2) faIled to addre~s 1. ble merger and 8040 greenlinereview regulatIonS. LItIgatIon ensued for the followmg app Ica . . . C rt h th 21 months beginning by appealing City Council's approval to the D~str~ct ou ,w er~ . e . court upheld City Council's decision. An attempt to over turn the DIStrlCt Court s deCISIon m the Court of Appeals failed and an unpublished decision was handed down on March 23, 2000. The project's original vested rights period will expire on May 26, 2001. The applicant wishes to add twenty-one (21) months, which were lost to litigation, to the original vested rights period thereby establishing a new date of expiration of vested rights of February 26, 2003. As a result of the 21 month legal process endured by the applicant that began one month after the project's approval, no development occurred. The applicant argues that the litigation was beyond their control, and the City was also named as a defendant. The current land use code does not specifically address the Kettle Corporation's situation. However, as a result ofthe timing ofthe project's approval and subsequent issue ofthe development order relative to the complaint filed just one month later, no development or action regarding the Tippler Townhomes Development occurred. Further, in accordance with Section 26.308.010 (C)(2), the city attorney advised that in order for the applicant to extend their vested property rights status for the Tippler Townhomes Development, they should comply with any additional amendments made to the Aspen Land Use Code since the original development order was approved on May 26, 1998 pursuantto Ordinance No.6, Series of 1998. (Exhibit C) !' RECOMMENDATION: Staff recommends approval of the extension of vested property rights to expire on February 26, 2003 for the Tippler Townhomes Development located at 535 East Dean Street with the following conditions: 1. That the Tippler Townhome development's vested rights status, as originally established on May 26,1998, will expire on May 26, 2001. As a result of the 21 months lost to litigation beyond the applicant's control, a new expiration date of vested rights for the Tippler Townhomes development shall be established as February 26, 2003. .2. That this newly established expiration date of vested rights of February 26, 2003 shall i be granted provided the applicant complies with Section 26.575.150: Outdoor 1 Lighting _ pursuant to Ordinance 99-47 made to the Aspen Land Use Code on < 11/23/99 subsequent to the Tippler Townhomes development's original development! order on May 26,1998 pursuant to Ordinance No.6, Series of 1998. . 2 '- r-, .~ 3. That any failure to abide by the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Failure to properly record all documents, plats, and agreements required to be recorded by the Municipal Code shall also result in forfeiture of said vested property rights. 4. That nothing in the approvals provided in Ordinance No.6, Series of 1998 shall exempt the site specific development plan from subsequent reviews and or approvals required by Ordinance No.6, Series of 1998 or the general rules, regulations or ordinances of the City provided that such reviews or approvals are not inconsistent with the approvals granted and vested herein. 5. That the establishment herein of a vested property right shall not preclude the applications or regulations which are general in nature and are applicable to all property subject to land use regulation by the City of Aspen including, but not limited to, building, fire, plumbing, electrical and mechanical codes. The developer shall abide by any and all such building, fire, plumbing, electrical and mechanical codes, unless an exemption therefrom is granted in writing. RECOMMENDED MOTION: "I move to approve Resolution No. 66, Series of2000, the extension of vested property rights for the Tippler Townhomes Developmentlocated at 535 East Dean Street as originally approved by Ordinance No.6, Series of 1998. The new expiration date will be February 26,2003." CITY MANAGER'S COMMENTS: ATTACHMENTS: Exhibit A -- Review Criteria, Staff Findings, and Resolution No. 66, Series of2000 Exhibit B -- Photo ofParcel-2737-182-96-033 Exhibit C -- Ordinance No.6, Series of 1998 Exhibit D -- Application Letter 3 ..... I""'" 1"""'. EXHIBIT A REvIEW CRITERIA, STAFF FINDINGS & RESOLUTION No. 66, SERIES OF 2000 SECTION 26.308.010 VESTED PROPERTY RIGHTS Extension or Reinstatement of Vested Rights In reviewing a request for the extension or reinstatement of a development order and associated vested rights, the City Council shall consider, but not be limited to, the followin2 criteria: a. The applicant's compliance with any conditions requmng performance prior to the date' of application for extension or reinstatement; STAFF FINDING: As a result of the timing, only one month lapsed between the project's approval by City Council for development and the subsequent filing ofthe complaint by the concerned neighbor. Once the neighbor filed the complaint, the applicant's involvement in the ensuing litigation since June 24, 1998 until present prohibited any development whatsoever to take place with regard to the project. During this time, the applicant could not comply with any conditions possible requiring performance prior to the date of application for an extension. The original conditions of approval will still stand as part of the development approval. b. The progress made in pursuing the project to date including the effort to. obtain any other permits, including a building permit, and the expenditures made by the applicant in pursuing the project; STAFF FINDING: As a result of the 2 I-month period of litigation, no progress has been made in pursuing the project to date including the effort to obtain any other permits, including a building permit, and the expenditures made by the applicant in pursuing the project. c. The nature and extent of any benefits already received by the City as a result of project approval such as impact fees or land dedications; STAFF FINDING: Outside of the application processing costs incurred by the applicant with respect to City Land Use Application Fees and Referral Fees, there have been no benefits already received by the City as a result of project approval such as impact fees or land dedication. Impact fees are collected at the time of building permit issuance. d. The needs of the City and the applicant that would be served by approval ofthe extensiou or reinstatement request. 4 -, ,-., /-.. STAFF FINDING: The Aspen Area Community Plan (AACP) specifies that the development of affordable housing within the traditional town site should be encouraged. Infill projects, such as the Tippler Townhomes Development, can preserve and enhance a sense of community. The City's policy towards affordable housing specified in the AACP includes the provision of 800 to 1,300 additional affordable housing units within the Aspen Community Growth Boundary. Therefore, the City stands to benefit from the creation of the four (4) additional deed restricted units served by approval ofthis extension request as proposed in the Tippler Townhomes Development. C:\My Documents\Fred's Work\Current Cases\Vested Rights\Tippler Vested Rights Extention Memo.doc 5 MAY-17-00 WED 2:17 P~John H Case FAX ~. 970 920 3395 p, 1 John H. Case Attorney at Law Post Office Box IJ203 Aspen, Colorado 81612 Telephone (970) 925-8394 Fax 920-3395 May 17,2000 Fred Jarman City of Aspen Planner . VIA FACSIMILE: 920-5439 Re: Tippler Townhomes Extension of Vested Rights Dear Fred: This is to confirm what I relayed to you in our discussion. Pursuant to the provisions oC the Colorado Business Corporation Act the Kettle Corporation was merged into a new Colorado ,'orporation caUed Malayer Inc. effective last Monday, May 15,2000. Accordingly, the Kettle Corporation no longer exists, and its assets and liabilities now belong to Malayer Inc. The applicant for the extension ofvcstcd rights is still Sirous Saghatoleslami. Howevcr, hc now owns the property through Malayer hlc. instead of the Kettle Corporation, Sirous is th" sole owner of 100% of the stock of Malayer. JHC:ss cc: Sirous Saghatoleslami RECEiVED 1""'"'. r"'\ At'K i U LIJUU ASPEN/PITKIN COMMUNITY DEVELOPMENT HAND DELIVERED ~~.~ 7~ tv.J ~ pA-p ~~ v:~- c:::Pd VANN ASSOCIATES, LLC Planning Consultants April 10, 2000 Re: Tippler Townhomes Vested Rights John Worcester, Esq. City Attorney 130 South Galena Street Aspen, CO 81611 Dear John: Please consider this letter a request for an extension of the Tippler Townhomes vested rights status. As I discussed in my November 15, 1998 letter to you (copy attached), a neighboring property owner filed a Rule 106(a)(4) complaint for judicial review following the City's approval of the project. Final approval was granted by the City Council on May 26, 1998 pursuant to Ordinance No.6, Series of 1998. The complaint was filed on June 24, 1998. Both the Kettle Corporation (the owner of the property) and the City were named as defendants. The District Court dismissed the complaint on March 26, 1999, finding in favor of the City and the Kettle Corpora- tion. The plaintiff, however, appealed the District Court's decision. The decision affirmed by the Court of Appeals on March 23, 2000 (see attached decision). In all, the judicial review process encompassed approximately twenty-one months from beginniIig to end. As the Kettle Corporation was reluctant, if not unable, to undertake the project until the complaint was resolved, I believe that an extension of the original vested rights period is warranted. Section 26.308.01O.C. of the revised Aspen Land Use Regula- tions now provides a procedure for the approval of such extensions. Basically, the City Council can grant an extension at a public hearing following certain findings of fact. While the code criteria do not specifically address the Kettle Corporation's situation, sufficient flexibility would appear to exist to grant the requested extension. The project's original vested rights period will expire on May 26, 2001. Given that approximately twenty-one months were lost due to judicial review, I believe that an extension of the vested rights expiration date until February 26, 2003 would be reasonable. The litigation was obviously beyond the Kettle Corporation's control, and 230 East Hopkins Ave. . Aspen. Colorado 81611 . 970/925.6958 . Fax 970/920-9310 ,-., ~ John Worcester, Esq. April 10, 2000 Page 2 the City was also named as a defendant. The project was well received by the City and its development will be an asset to the neighborhood. In discussing the matter with David Hoefer and the Kettle Corporation's attorney, John Case, both indicated that it is unlikely that the Colorado Supreme Court will hear the complaint on appeal. Hopefully the issue has been resolved, and the Kettle Corporation will now be free to pursue development of the project. However, should further litigation ensue, an additional extension(s) may be required. While David also indicated that the requested extension should be addressed to you, I would be happy to formally pre-app the request with the Community Development Department should you feel it necessary. Should you have any questions, or if I can be of any further assistance, please do not hesitate to call. Yours truly, V ANN ASSOq,t\TES, LLC cc: Sirous Saghatoleslami John H. Case, Esq. c:lbuslcity .ltrlltr35797 _jw2 MAR-25-00 SAT 3: 17 PM ~hn H Case FAX NO. ~O 920 3395 , ., ... ..' COLORADO COURT OF APPEALS No. 99CA0885 March 23, 2000 NOT SELECTED FOR PUBLICATION ~,'ipple Inn #12, LLC, a Colorado limited liability company, Plaintiff-Appellant, 'I. ','he City of Aspen, Colorado, a home rule municipality; the City ,>~uncil of the City of Aspen, Colorado, acting in its official (:apacitYi and the Kettle Corporation; a Colorado corporation, Defendants-Appellees. Appeal from the District Court of Pitkin County Honorable T. Peter Craven, Judge No. 98CV145 01vision II JUDGMENT AFFIRMED Opinion by JUDGE DAILEY ?lank and Erickson*,JJ., concur Whitsitt & Gross, P.C., Timothy E. Whitsitt, Eric J. Gross, carbondale, Colorado, for Plaintiff-Appellant John Worchester, City Attorney, David Hoefer, Assistant City Attorney, Aspen, Colorado, for Defendants-Appellees, City of Aspen and the City Council of the City of Aspen, Colorado John H. Case, Aspen, Colorado, for Defendant-Appellee, Kettle ':orpora tion -l< Si tting by assignment. of the Chief Justice under provisions of che Colo. Canst. art. VI, Sec. 5(3), and ~24-51-l105, C.R.S. I999. P 1 MAR-25-00 SAT 3: 17 PM ~hn H Case FAX r[Q. .~O 920 3395 Tipple Inn #12, LLC (plaintiff) appeals the district .".Jurt's denial of C.R.C.P. 106(a) (4) relief in favor of the City "f Aspen, Colorado; the City Council of the City of Aspen; and :.he Kettle Corporation (collectively defendants), concerning a land use matter. We affirm. The Kettle Corporation applied to the City of Aspen for ~PFroval of a new subdivision to construct Tippler Townhomes, a ,:'cli.lding with eight multifamily dwelling units, including four ctfordable housing units. The proposed subdivision encompassed CAe adjacent lots of land which Kettle owned but which were i0cated in contiguous subdivisions. Kettle proposed to place ,ts townhomes building across the boundary line between the two J.ot.s. Previously the site had been devoted to a one-story restaurant and nightclub on one lot and its parking lot on the ,.t.her. After the Planning Commission recommended approval of the epplication, the City Council of the City of Aspen (Council) held two public hearings. At the hearings, Gary Jacobs, a ~eighbor whose view would be blocked by Tippler Townhomes, .:,bjected to Kettle Corporation's application. The Council ~pproved the application, and Jacobs sought district court ceview of the Council's decision under C.R.C.P. 106(a) (4). The plaintiff entered the case in the district court, .~bstituting in for Jacobs after it purchased his property_ The 1 P 2 >.":,,,,""._,".._~..., ''''~'' MAR-25-00 SAT 3: 18 PM ~hn RGase FAX NO..~O 920 3395 dist~ict court upheld the Council's approval of Kettle Corporation's application. 1. Initially, the plaintiff argues the City failed to apply mandatory subdivision regulations of the Land Use Regulations of tile City of Aspen (Code) to Kettle Corporation's application_ tcore specifically, the plaintiff argues that the Council did not, as required by Code 126.88.060, either find that the pcoposed change was consistent with the existing subdivision plat or amend the existing plat. Significantly, thls was not the argument the plaintiff made before the Councilor 'the district court. The plaintiff neither cited 126.88.060 nor otherwise alerted the Councilor the district court to any alleged need to amend an existing 3ubdivision plat or to find that the proposed use was consistent ~ith the existing subdivision, and for that reason we decline to :consider this issue on appeal. Dove v. Delgado, BOB P.2d 1270 iColo. 1991). II. The plaintiff contends that a single parcel of land cannot ':"'~0nsist of two lots in two sepa.J;::ate subdivisions, or, ..:lernatively, that a building cannot be located in two lots in two separate subdivisions. The City Planner, the Council, and ttle dist~ict court all rejected these claims, concluding that 2 P. 3 ~AR-25-00 SAT 3: 19 PM John H Case ("""" FAX NO. ,.....az0 920 3395 ~here was no requirement for review of vacation of a lot line ,'lhen that line was under common ownership. On appeal in a C.R,C.P. 106{a) (4) matter, we are not bound '~y t.he trial court' 5 determinations. Denargo Market Neiqhbors ':0alition v. Visser Real Estate Investments, 956 P.2d 630 (Colo. ::=... ....\.pp. 1997). We do, however, review the same record - Krupp v. ~!eckenridge Sanitation District, P.2d (Colo_ App. No_ nCA1996, Apr. 1, 1999) (1999 WL 179013). We also apply the ~~me standard of review, Denarqo Market Neighbors Coalition v. ;lsser Real Estate Investments, supra, as the trial court did. ;onsequently, we consider only the record before the Council, ~fUPP v. Breckenridqe Sanitation District, supra, and must u?hold the Council's decision unless it is grounded in a ~isconstruction or misapplication of law, City of Colorado ~_eEings v. Givan, 897 P.2d 753 (Colo. 1995), or is unsupported ~y competent evidence. Board of County Commissioners v. O'Del~, 020 P.2d 48 (Colo. 1996). The plaintiff claims that the City Council and trial court rr,isapplied or overlooked Code S26.88.040(A) (4), which provides: Prohibited development. All structures shall be located on a subdivision lot. The lot lines established in a subdivision shall not be altered by conveyance of a part of a lot, nor shall any part of a lot be joined with a part of any other lot for conveyance or construction, unless the application has been made pursuant to the terms of this chapter_ 3 P. 4 .,~;-,~:~".~ MAR-25-00 SAT 3:19 PM ,~hn H Case FAX NO. 1""'\(0 920 3395 P. 5 , , . According to the plaintiff, this provision requires either trle vacating of lots lines or at least a variance granted by the Board of Adjustment, before Kettle could do as it proposes to do. In our view, the plaintiff reads too much into this 7rovision. The provision does not consist, as the plaintiff contends, of two unrelated sentences. The sentences are related to one another, and the prohibition on the use of, or building on, different lots in different subdivisions is qualified by an important exception. That exception is contained in the last clause of the second sentence, i.e., "unless the application has been made pursuant to' the terms of this chapter." Here, Kettle appropriately requested permission to use, and build upon, the two lots at issue pursuant to the subdivision "terms of this chapter." Accordingly, we conclude that the council did not exceed its jurisdiction or abuse its discretion on approving Kettle Corporation's application. The judgment is affirmed. JUDG~ PLANK and JUSTICE ERICKSON concur. 4 '!-' ~ '.".. ,1'""'1 ~. J A , . VANN ASSOCIATES, LLC Planning Corsultants November 15, 1998 HAND DELIVERED John Worcester, Esq. City Attorney 130 South Galena Street Aspen, CO 81611 Re: Tippler Townhomes Vested Rights Dear John: The Tippler Townhorqes project received [mal approval from the City Council on May 26, 1998 pursuant to Ordinance 6, Series of 1998. A final subdivision plat and agreement has been submitted to the City and is presently being reviewed by the Planning Office and Engineering Department. The plat and agreement must be recorded on or before November 26 of this year. The project's vested rights status will expire on May 26, 2001. As you know, Gary Jacobs, a neighbor of the project, filed a complaint for judicial review pursuant to Rule 106(a)(4), C.R.c.P. on June 24, 1998. In his complaint, Mr. Jacobs alleges that the approved project violates the City's open space requirements and failed to address applicable merger and 8040 greenline review regulations. The record of the City Council proceedings in the matter was certified to the Court by the City Clerk on October 19, 1998. In discussing the complaint with the project applicant, Sirous Saghatoleslami, and his attorney John Case, it became obvious that the matter may not be resolved until sometime next summer. This estimate is based on the time allowed for the plaintiff to now brief the complaint, the applicant to respond, and Judge Craven to ultimately dispose of the matter. Inasmuch as Sirous is reluctant toproceed with the project until the complaint is resolved, he has asked that I inquire as to the feasibility of obtaining an extension of his vested rights period for the duration of the civil proceeding. In other words, the three year vested rights period would commence upon the disposition of the com- plaint by the Court. While Sirous fully expects to prevail in the matter, the disposi- tion of the complaint is clearly outside of his control. 230 East Hopkins Ave. . Aspen. Colorado 81611 . 970/925-6958 . Fax 970/920-9310 ,-,. ., < ... .. ~. ~) .~ I John Worcester, Esq. November 15, 1998 Page 2 While the current Land Use Regulations do not appear to address this issue, I noted that your proposed rewrite provides a mechanism for requesting and receiving a vested rights extension. Given the circumstances, and the criteria which you have proposed, an extension would appear to be warranted in this case. Accordingly, I would appreciate it if you would consider the matter and let me know how to proceed. Should you' have any questions, or if I can be of any further assistance, please do not hesitate to call. Yours truly, cc: Sirous Saghatoleslami John H. Case, Esq. c:\bus\city.1tr\ltr35797_iw1