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HomeMy WebLinkAboutcoa.lu.ca.Non Conforming.0061.2007THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0061.2007.ASLU PARCEL ID NUMBER N/A PROJECT ADDRESS N/A PLANNER Jason Lasser CASE DESCRIPTION Code Amendment REPRESENTATIVE Alice Davis DATE OF FINAL ACTION 5/16/08 CLOSED BY Amy DeVauk ,-~,, -~, ~, , Fib Edit Record Navigate Form Reports Format Tab Help .J . /x / / J ~~ ~ fi ~J ~ ~ _h• Y7 4 ~ ~ Oo ]ump 1 ~~,~ A Irk ii j __ - c Mam(Roulln98latus Fee Summary 1LAceons RPUbng History of '.'. PamA Type Permit# 061.2007.ASLU - - Il Address 2155 MONARCH ~ Aq/Su4e 104 i o I °a '. ~.. 0 Cdy ASPEN Slate CO ~ ZIP 816 11 J '~ Pelmil lnformalion ~ '. ~ ' Martel Permil~J Routing Queue aslu07 Appfed 1023/2007 J I ~ '~~ ' Prolecl J Slatus Pend'n9 APPloved ~-J , ~ ~ Descrigion CODE AMENDMENT Issued ~J Final ~-J 5u6mitled ALICE DAMS 9258166 Cbck Running Days r ~ Expies 10)1712008 J Owner Last Name DAMS ~ First Name ALICE 2155 MONARCH phone ~- 104 ASPEN CO 81611 fJ Owner is Applicant? Applicant Last Name DAMS J Firsl Name ALICE Phone) Cust# 27969 J ~', Lender Last Name ~-J First Name Phone AspenGdd~b) Record:2d2 the permit type code CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Jason Lasser, 429-2763 DATE: 5.16.08 PROJECT: 850 Roaring Fork Rd. -Lauder ADU / Ord.35, 2004/Ord. 7, 2008 REPRESENTATNE: Alice Davis OWNER & ADDRESS: Gary Lauder, 88 Mercedes Ln. Atherton, CA. TYPE OF APPLICATION: Enlargement of anon-conforming structure ADU or Carriage House DESCRIPTION: The Applicant would like to expand their ADU, which is governed by Ordinance No 7, Series of 2008. Note that Ordinance No. 7, 2008 will not go into effect until thirty (30) days after the approval of the ordinance. Land Use Code Section(s) Ordinance No 7, Series of 2008 26.304 Common Development Review Procedures 26.430.050 Special Review Standards 26.430.050 - 26.430.070 26.520.050 Design Standards -Accessory Dwelling Units 26.520.080 D Special Review -Accessory Dwelling Units (if necessary) Review by: Staff for review of completeness and recommendation on special review request, Planning and Zoning Commission for final determination on special review. Public Hearing: Yes. Referral Agencies: Housing. Planning Fees: $1470 Deposit ($1470 for 6 hrs of staff time. Any Planner time spent over the 6 hours will be billed at $235.00 per hour.) Referral Agency Fees: $212 (Housing) Total Deposit: $1,682.00 To apply, submit the following information: 1. Deposit for Review. 2. Completed Land Use Application. 3. Proof of ownership 4. Signed fee agreement 5. Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 6. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 7. An 8 1/2" by 11"vicinity map locating the parcel within the City of Aspen. 8. Site Improvement Survey. 9. Proposed Floor Plans. 10. Proposed Elevation Drawings. 11. A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. 12. Additional materials as required by the specific review. Please refer to the application packet for specific submittal requirements or to the code sections noted above. 13. 11 Copies of the complete application packet and maps. HPC = 12; PZ = 10; GMC = PZ+S; CC = 7; Referral Agencies = 1/ea.; Planning Staff= 1 Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. ORDINANCE No. 7 (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: 26.312.030 -NONCONFORMING STRUCTURES - MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous aznendments to Section 26.312.030 submitted by Gary and Laura Lauder, 850 Roaring Fork Road, Aspen, CO were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clazify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor azea on properties with a mandatory occupancy accessory dwelling unit and which are legally established nonconformities with respect to floor azea; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public hearing on Februazy 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a vote of six to zero (6-0); and, WHEREAS, the Aspen City Council finds that the proposed text amendments to the meet or exceed all applicable standards pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfaze. WHEREAS, during a duly noticed public hearing on May 12, 2008, the Aspen City Council approved amendments to the text of Nonconforming Structures, as described herein, by a vote of five to zero (5-0); and, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030. Non-conforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. 1. Historic structures. The first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yard and rear yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlargement does not exceed the allowable floor area of the existing structure by more than five hundred (500) square feet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.415. 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The second exception to this requirement shall be for a property with a detached Accessory Dwelling Unit or Carriage House ("ADU") having a mandatory occupancy requirement. Such a detached ADU may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU and also provided that the ADU does not exceed the maximum size allowed for an ADU or carriage house. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. a) Procedure. The procedure for increasing the maximum floor area of a property for the purpose of increasing the size of an ADU requires the submission of a development application. The development application shall be processed under Chapter 26.430, Special Review. b) Review Standards. An application for increasing the floor area of a property for the purpose of increasing the size of an ADU shall meet the standards in Section 26.520.050, Design Standards, unless otherwise approved pursuant to Section 26.520.080 Special Review, as well as the following additional review standards: (1) Newly established floor azea may increase the ADU up to a cumulative maximum of 500 sq. ft. of floor area and is required to be mitigated by either ~-~ Z S~ ~ \ of the following two options. I,~~V~t %~~ (a) Extinguishment of Historic Transferable Development Right Certificates ("certificate" or "certificates"). A property owner may increase the ADU by extinguishment of a maximum of two certificates with a transfer ratio of 250 sq. ft. of floor area per each certificate. Refer to Chapter 26.535 for the procedures for extinguishing certificates. (b) Extinguishment of unused floor area from another property. A property owner may increase the maximum floor area of a property for the purpose of increasing the size of an ADU by extinguishment of a maximum of 500 square feet of available un-built floor area from one property to the ADU. .-. W (2) The additional floor area is a conversion of existing square footage which was not previously counted in floor area. (Example: storage space made habitable. or the additional floor azea creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. (3) The additional floor area creates a unit which is more suitable for caretaker families. (4) The increased impacts from the larger size are outweighed by the benefits of having a larger, more desirable ADU. (5) The area and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor area through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. (7) For the transfer of allowable floor area from anon-historically designated property to an ADU deed-restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declazed unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore 1. Non-purposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Density on a substandard parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single-family floor area requirements. (Ord. No. 1-2002, § 6 [part]; Ord. No. 9-2002, § 5; Ord. No. 35-2004, § 1) ,-, Section 2• This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. Section 3• If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 4• A public hearing on this ordinance shall be held on the 12th day of May, 2008, at a meeting of the City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 24~' day of Mazch, 2008. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this 12th day of May, 2008. Attest: Kathryn S. Koch, City Clerk Approved as to form: Michael C. Ireland, Mayor City Attorney ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: N /~ ,Aspen, CO SCHEDULED PUBLIC HEARING DATE: M°n G ' / /mil G ~~ S 200~~ STATE OF COLORADO ) ) SS. County of Pitkin ) l ~~ SGO>'~ (name, please print) being or epresenting an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of/the Aspen Land Use Code in the following manner: y Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public heazing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the _ day of 200_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient Legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. ,~-~ ~- ~~ .. Signa e I d The foregoing "Affidavit of Notice" was acknowle ged ~ re m~ 8 day bf ~~ , 200 ~ by WITNESS MY HAND AND OFFICIAL SEAL PUBLIC NOTICE RE' CITY INITIATED AMENDMENTS TO CHAP- TER 26.312 - NONCONFORMITIES OF TITLE 26 OF THE MUNICIPAL CODE (LAND USE CODE) D s. calana sl., Aapen, co, lasonl ®ci.aspen. co. us. sl Michael C. IrelanU, Mayor Aspen Ciry Council PuElisM1etl In the Aspen Tlmes Weekly on Apnl2), 2008.(10.53056) My commissi expires: ~ ~ 0 ~~~ Notary Public ATTACHMENTS: LAURA MEYER COPYOFTHEPUBLIG9TION ~, ~OpltpiSSWI! Expires 08!1012010 PHOTOGRAPH OF THE POSTED NOTICE (SIGN LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BYMAIL t"' -- ~'~ ~ ~ P167 ~~~ MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Jason Lasser, Special Projects Planner THRU: Chris Bendon, Community Development Director MEMO DATE: April 24, 2008 MEETING DATE: May 12, 2008 ~: Code Amendments to Section 26.312.030 (C) -Nonconforming Structures -Ordinance No. 7, Series 2008 - 2"d Reading SUMMARY: Alice Davis, on behalf of the Lauder family, has submitted a number of text amendments wtt regard to the Non-conformities chapter of the Land Use Code as it relates to a code amendment submitted on behalf of the Landers in 2004 (Ord. No. 35). The City sponsorship allows the Amendment to be submitted by a private entity. Staff has worked with the applicant to clarify the language of the original ordinance. Staff recom Extensionsoval of this application for various code text amendments to Section 26.312.030 (C), 1sT READING SUMMARY: City Council requested the following from StaffA is the Lauaer tiwc5w+ u•~~••°• ----- It is uncleaz from the APCHA records and history how many were created and ow many units aze still in existence today. After reviewing the list with Cindy Christensen from ail`` APCHA three other units (101 Dale Ave and (2) units t 2 Williams Way). - ~ (a~ (J~ ''"~1 Include the relevant acket information from the 2004 eazin includin the minutes. The packet information from the 2004 and 2008 Planning and Zoning and City Counci] public hearings are included as "Exhibits B, C, and D" LAND USE RE UESTS AND REVIEW PROCEDURES: The City Council is requested to take the following actions: Determination if a lication to amend code text meets Standazds of Review pursuant to Land Use Code Chapter 26.310.040 Standazds of Review. On February 19`x, a noticed public hearing on a text amendment was held before the Planning and Zoning Commission and a recommendation of approval has been presented by the Commission to the City Council. APPLICANT: Alice Davis, Davis Hom Inc. and Gideon Kaufman, Kaufman Peterson Attorneys, representtng Gary and Laura Lauder, property owners and Chris and Lynn Seeman, ADU residents. Page 1 of 4 P168 .~-. PREVIOUS ACTION On February 19 , a noticed public hearing on a text amendment was held before the Planning and Zoning Commission and the commission voted 5-0 in favor of a recommendation of approval for an amendment to the non-conformities chapter. Previously in 2004, The Planning and Zoning Commission reviewed an amendment to the Non- conformities chapter of the Land Use Code and recommended denial at a public hearing on October 5, 2004. The City Counci] approved Ordinance #35, Series of 2004, on November 22, 2004, allowing for amendments to the Non-conformities chapter of the Land Use Code. -The amendment allowed a property that was legally established and non-conforming with regazd to floor azea (over the maximum allowable) to add up to 500 squaze feet of floor azea to an ADU. BACKGROUND: (FROM THE 2004 STAFF MEMO) The Lauder residence and ADU were built in compliance with the City's Floor Area code, which has since been amended. The former code granted two floor azea bonuses for Accessory Dwelling Units. Fifty percent of an ADU's floor azea was exempt if the ADU s+sucture was detached from the primazy residence and another 50% was exempt if the ADU was deed restricted to mandatory occupancy. Together, a 100% exemption was available for an ADU that was both detached and provided mandatory occupancy. The Lauder ADU qualified for this 100 exemption and the primary house was developed to the maximum size considering the bonus. During the period of this mandatory occupancy floor azea bonus, three ADU's were developed with a mandatory occupancy restriction. The City experienced significant difficulty in administering the mandatory occupancy and, in 2001, decided to remove this option from the code altogether. The ADU code requirements were subsequently amended to require ADUs be detached to gain a growth management exemption for the primary residence and the floor azea exemption was retooled to provide a 100% exemption only if the ADU was condominiumized and sold to a local working resident through the Housing Authority's Guidelines. The program allows the property owner to choose the first purchaser, as long as that person qualifies through the Housing Guidelines. At the same time as eliminating the mandatory occupancy bonus, the City amended the code to provide a process of removing the mandatory occupancy restriction from an existing ADU through a landowner provision of either anoff--site deed restricted unit or a cash-in-lieu payment equal to the mazket value of the bonus area. This was done in response to a landowner with a mandatory occupancy ADU. The City's code amendment in 2001 made the Lauder property a "legally established non- conformity." Specifically, the Lauder ADU no longer qualified for a floor azea exemption and the property contained too much floor azea. The City's non-conforming regulations allow legally created non-confomuties to exist in perpetuity, but prohibit expansions of the non-conformity. (i.e. a house that is over it's floor azea cannot be added on to). The Lauder ADU is a one-floor unit developed over a storage basement that was also exempt from the calculation of floor azea. The storage azea was purposely developed as non-inhabitable space (no wiridow wells) to maintain its being exempt from floor area. Basement levels count towards floor area proportionately to the extent they aze exposed. Window wells increase the Page 2 of 4 `~'' P169 exposure and require more of the basement level to count towards the property's total Floor Area allowance. Prior to the initial Code Amendment request in 2004, a building permit to install window wells in the ADU structure was submitted to the Building Department and denied due to a lack of floor azea. The improvements were built without a permit and the construction was "red tagged" by the Building Department. The improvements were then removed and the property returned to its previous condition. An application to amend the Non-conformities chapter of the Land Use Code was submitted in 2004 requesting modifications to the nonconforming structures section with regazd to extensions and ADUs and Carriage Houses. Public hearings followed at both Planning and Zoning and City Council. As a result, Ordinance No. 35 (Series of 2004) was passed, amending the text of the Land Use Code to permit additional development on properties containing and accessory dwelling unit (ADU) and which aze non-conforming with respect to floor azea. (2008 Background) In March 2007, the City was approached by Alice Davis and Gideon Kaufman to discuss the possibility of acting upon the approved language of Ord. #35, Series of 2004. Staff and the applicant representatives have worked to clarify the language which is applicable to only one mandatory occupancy unit (Lauder ADU). See summary of the proposed ordinance below for clarification on the text changes to the Land Use Code. On Febnzazy 19, 2008, the Aspen Planning and Zoning Commission found that the application for the code amendments met the applicable standazds of review and recommended approval (by a 6-0 vote). STAFF COMMENTS: Staff has enclosed an Ordinance that demonstrates code text amendments using stFil~s in red for removed text and underlined blue shadine to denote new text. Each change, or set of related changes, is accompanied by a numbered red box in the left column. To understand the vazious code text amendments, it may be easiest to look through the Ordinance to see the exact code language changes -- while consulting the explanatory text below, which offers a rationale for each code text amendment, using the red boxes. SUMMARY OF THE PROPOSED ORDINANCE: The general allowances for non-conforming structures is now rolled in Section C, the exceptions to "C" aze now formatted as a subsection of "C". Clarifies the current text by following a more logical format -that the increase in floor azea is only available for ADUs with mandatory occupancy and then breaks the procedure and review standazds into subsections. To increase floor azea on a property, the application is reviewed as a special review application (requiring notice and hearing before the Planning and Zoning Commission). Additionally, the application must meet the design review standazds for an ADU or carriage house and meet additional review standazds in the non- Page 3 of 4 P170 conforming section. Most important is mitigating for the additional floor azea via extinguishment of a TDR or un-built floor azea from another property. Combines standazds 1 and 2, eliminates standazd 5 (no variance from setbacks can be required), clarifies the standazd for TDR extinguishment, and the fmal standazd language has been modified to omit a squaze footage number from transfer from non-historic properties. RECOMMENDATION: Staff recommends approval of this application for various code text amendments to Section 26.312.030 (C), Extensions. CITY MANAGER COMMENTS: RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Ordinance No. 7, Series of 2008, upon second reading". ATTACHMENTS: E7cI-IISIT A -Review Criteria and Staff fmdings EXHIBIT B - 2004 P+Z packet information (memoranda, Staff findings, Resolution, Minutes) ExI-IIBIT C - 2004 City Council Packet information (memoranda, Staff findings, Ordinance, Minutes) EXHIBIT D - 2008 P+Z packet information (memorandum, Staff findings, Resolution, minutes) ExI-IIS~T E -Ordinance 35, Series of 2004 Page 4 of 4 `"~ P17~ /~ va t. `~ ~. ORDINANCE No. 7 (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: 26.312.030 -NONCONFORMING STRUCTURES - MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous amendments to Section 26.312.030 submitted by Gary and Laura Lauder, 850 Roaring Fork Road, Aspen, CO were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clarify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor azea on properties with a mandatory occupancy accessory dwelling unit and which are legally established nonconformities with respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public hearing on February 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a vote of six to zero (6-0); and, WHEREAS, the Aspen City Council finds that the proposed text amendments to the meet or exceed all applicable standards pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfaze. WHEREAS, the amendments to the Land Use Code are delineated as follows: Text being removed is strikethrough and red. T°°• '-°~°^ -°--~^°°a '^^L° '~''° ''''~ Text being added is underlined and blue. Text being added looks like this. Text which is not highlighted is not affected; and, }~..- C '~ P172 `~ NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030. Nonconforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. '~~'. A nonconforming structure shall not be extended by an enlazgement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. 1. Historic structures. The el~y first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yard and reaz yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlazgement does not exceed the allowable floor area of the existing structure by more than five hundred (500) square feet, complies with all other requirements of this Title and receives "rj development review approval as required by Chapter 26.415. 3: 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The exly second ether exception to this requirement shall be for a property with a detached Accessory Dwelling Unit (A$I3) or Carnage House ("ADU"1 having a mandatory occupancy requirement. Such a detached ADU efage-l~exse may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU om- =as~e and also provided that the ADU o~so does not exceed the maximum size allowed for an ADU or carriage house. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. 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T« ~F «.,l,lo D' 1. a' ,.a .,1.., + AT1TT avea ..««:,.«ea «a..«,. .+:« a !1 1 A Tl T T «:« «1...« :.. a,...a ...,..««:..«va ., .,a.,«,.--.., ..:« ..1...17 F ~. r 1.' 11 a,,..:,..,,.«ea «« _,..w., «1. ,. ~ « 1..... ....F~,.;o„r ......:l../.le Fl..,.« + m r r + a) Procedure The procedure for increasing the maximum floor area of a property for the purpose of increasing the size of an ADU requires the submission of a development application The development application shall be processed under Chapter 26.430, Special Review. b) Review Standards An application for increasing the maximum floor area of a propertv for the puroose of increasing the size of an ADU shall meet the ;n ,.aa:.?c~ _z `_'-' -°-'.-'- .-..--- sriteFia standazds in Section "x_"- 26.520.050 Design Standards unless otherwise approved pursuant to Section 26.520.080, Special Review, a ~~ ~'~"' ~ TT1D ""." 1. agprevet> pal~Ee as well as the following additional review srfte~ia standazds: (1)Newly established floor azea may increase the ADU up Yo a cumulative maximum of 500 sq ft of floor area and is required to be mitigated by either of the following two options. alExtinguishment of Historic Tran_s_ferable Development Right Certificates ("certificate" or "certificates"). A propertv owner may increase the ADU by extinguishment of a maximum of two certificates with a transfer ratio of 250 sq fr of floor area per each certificate. Refer to Chapter 26 535 for the procedures for extin ug fishing certificates. fb Extinguishment of unused floor area from another propertv. A propertv owner may increase the maximum floor area of a propertv for the pumose of increasing the size of an ADU by extinguishment of a maximum of 500 squaze feet of available unbuilt floor area from one propertv to the ADU. (~(2) The additional floor area is a conversion of existing squaze footage which was not previously counted in floor azea. (Example: storage space made habitable). (~)--"F or the additional floor area creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. {3~ ~ The additional floor azea creates a unit which is more suitable for cazetaker families. ~.,.., P174 (-0~ (~ The increased impacts from the larger size are outweighed by the benefits of having a larger, more desirable ADU. ^~ flnnr yr» »»_ ~ •u ,. 1. th:^ c,,,..: ,. P 1, !~ a ••» 42.2•• o'dc° .:b.. ..~ ..~..zvir-va -cxic-c~v~ ((~(~The area and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor area through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. i~~ u:^tFlria Tr~n^far~ht^ n^..^ t,..,».e«« n:,.t..^ • t. t, r e Awax-azPa-PYtaancsa•• ^ ,,..•ti3g~l3iS~1l P~-pk3rSl3&ikt t9 n133ptPr ~~ ~J~~J (-8) (For the transfer of allowable floor area s:~u4rc ~~~ k,,,,d_va icnm ^,....,«e c ,,. from a nonhistorically designated property to an ADU deed-restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor azea from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore. 1. Non-purposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* `°"~ P 17 5 ~- *A duplex or two single-family residences on a substandazd pazcel in a zone district ~.,,,. permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Density on a substandazd parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single-family floor azea requirements. Section 2• This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. Section 3• If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 4• A public hearing on this ordinance shall be held on the 12th day of May, 2008, at a meeting of the City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND O)2ED PD as provided by law, by the City Council of the City of Aspen on th~~v\)day o 2008. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this _ day of , 2008. Attest: ;~ Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor P177 E3~TT A Chapter 26.310 AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP Sec. 26.310.040. Standards of review. In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Findings: The proposed code amendments clarify the language, procedure and standards of the' nonconforming structures section of the Land Use Code. The proposed changes eliminate confusing language disallowing variances for properties with bonus floor area, which created an inconsistency with the Variance Chapter of the Land Use Code. Staff finds this criterion to be met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. Staff Findings: Allowing for additional area in an Accessory Dwelling Unit to accommodate a family currently residing in the ADU is consistent with the AACP's goal to provide affordable housing. Stafffnds this criterion to be met. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. Staff Findings: There were originally only three approved ADU's/Carriage Houses as mandatory occupancy units in the short period of time the legislation was in effect. One of these three ADU's has had its restriction removed and the Seeman's live in a remaining mandatory occupancy unit. The applicability of the legislation is guite narrow, therefore, Staff finds this criterion to be met. D. The effect of the proposed amendment on traffic generation and road safety. Staff Findings: The amendment will affect one unit and family. Staff does not find this criterion to be applicable. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities mcarks,gdratna eotschoolsand transportation facilities, sewage facilities, water supply, p g , emergency medical facilities. P178 ~/ StaffFindings: The amendment will affect one unit and family. Staff does not find this criterion to be applicable. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Staff Findings: The amendment will affect one unit and family. Staff'does not find this criterion to be applicable. G. Whether the proposed amendment is consistent and compatible with the community character in the City. Staff Findings: The expansion of an existing ADU is consistent with the communiry character. Mass and scale can be reviewed through the development application process. Staff finds this criterion to be met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Findings: The expansion of the caretaker family (by one) has affected the subject parcel, requiring additional square footage for the changed condition. Staff finds this criterion to be met. I. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Sta Findings.• Because of the narrow scope of applicability for this amendment, and that the intent is to allow an existing family to remain in Aspen, Staff finds that the proposed amendment is in harmony with the purpose and intent of the Land Use Code. Staff finds this criterion to be met. ~~ ~~ P i i s EXHIBIT B. MEMORANDUM TO: Aspen Planning and Zoning Commission THRUi Joyce Allgaier, Deputy Duector FROM: Chris Bendon, Senior Planner gE; Code Amendment -Section 26.312.030 -Non-Conforming Structures DATE: September 7, 2004 SUMMARY: Gideon Kaufrnan, on behalf of the Lauder family, has submitted an amendment to the City's Land Use Code. The amendment would permit the development of additional floor azea on a property that currently exceeds its maximum allowable floor azea. The additional floor azea would be transferred from another property through a new TDR program. The specific case involves an Accessory Dwelling Unit that was built, along with the primary residence, with certain floor azea bonuses that have since been amended. The Background section of this memo goes into greater detail. Staff is not supporting the code amendment as proposed and is recommending denial. Staff strongly prefers any transfer of floor azea use the fledgling Historic TDR program. Otherwise, a new TDR program may dilute the potential of the Historic TDRs. The proposed text is uncleaz as to whether the transferred floor azea must accommodate the extent of the nonconformity plus the expansion or only just the expansion floor azea. And, staff prefers a system whereby a P&Z review of the specific case is required - not a "by-right" system. However, there may be some value in further discussing the ability ofnon-conforming structures to expand or the use of more than one Historic TDR per residence through an additional review. If the Planning and Zoning Commission is interested in such a system, staff suggests P&Z provide guidance to staff for fiu'ther analysis. It should be noted that, associated with asoon-to-be submitted land use application, staff is expecting a request to amend the TDR program to permit more than one TDR be landed per residence. Staff recommends denial of the proposed amendment and that P&Z provide guidance to staff on any desired alternatives to be further explored. Plao ~. APPLICANT: Gideon Kaufman, Kaufman Peterson Dishier Attorneys, representing Leonazd Lauder, property owner. PREVIOUS ACTION: The Commission has not previously considered this application. REVIEW PROCEDURE: Text Amendment. At a duly noticed public hearing, the Commission shall recommend by Resolution the City Council approve, approve with conditions, or deny the application. BACKGROUND: The Lauder residence and ADU were built in compliance with the City's Floor Area code, which has since been amended. The former code granted two floor azea bonuses for Accessory Dwelling Units. Fifty percent of an ADU's floor azea was exempt if the ADU structure was detached from the primary residence and another 50% was exempt if the ADU was deed restricted to mandatory occupancy. Together, a 100% exemption was available for an ADU that was both detached and mandatory occupancy. The Lauder ADU qualified for this 100 % exemption and the primary house was developed to the maximum size considering the bonus. During the period of this mandatory occupancy floor azea bonus, three ADU's were developed with a mandatory occupancy restriction. The City experienced significant difficulty in administering the mandatory occupancy and, in 2001, decided to remove this option from the code altogether. The ADU code was amended to require ADUs be detached to gain a growth management exemption for the primary residence and the. floor azea exemption was retooled to provide a 100% exemption only if the ADU was condominiumized and sold to a local working resident through the Housing Authority's Guidelines.. The program allows the property owner to choose the first purchaser, as long as that person qualifies through the Housing Guidelines. At the same time as eliminating the mandatory occupancy bonus, the City amended the code to provide a process of removing the mandatory occupancy restriction from an existing ADU trough a landowner provision of either anoff--site deed restricted unit or a cash-in-lieu payment equal to the mazket value of the bonus azea. This was done in response to a landowner with a mandatory occupancy ADU. The City's code amendment in 2001 made the Lauder property a "legally created non- confomuty." Specifically, the Lauder ADU no longer qualified for a floor azea exemption and the property contained too much floor azea. The City's non- conforming regulations allow legally created non-conformities to exist in perpetuity, but prohibit expansions of the non-conformity. (i.e. a house that is over it's floor area cannot be added on to.) 2 `'`'' ~ P 181 The Lauder ADU is a one-floor unit developed over a storage basement that was also exempt from the calculation of floor azea. The storage area was purposely developed as non-inhabitable space (no window wells) to maintain it being exempt from floor azea. Basement levels count towazds floor azea proportionately to the extent they aze exposed. Window wells increase the exposure and require more of that basement level to count towazds the property's total Floor Area allowance. The Lauder family now wants to convert the basement to habitable space to accommodate the cazetaker's expanded family. To do so requires the installation of window wells to serve as emergency egress, requiring floor azea. The non- conforming status of the property prevents any additional floor azea to be developed although two development options exist. A no-net-gain plan, whereby the increase in floor azea on the ADU would be balanced with an equal floor azea reduction to the primary house, and deed restricting the ADU and selling it to the cazetaker. Neither of these options have been sought. A building permit to install window wells in the ADU structure was submitted to the Building Department and denied due to a lack of floor azea. The improvements were built without a permit and the construction was "red tagged" by the Building Department. The improvements were then removed and the property returned to its previous condition. Code amendments can be initiated by the Planning Director, the P&Z, or the City Council. Amendments can be initiated by a private parry if one of the three bodies allows the application. The applicant requested staff initiate a code amendment to alleviate this circumstance and staff declined to initiate the action. The applicant approached City Council and requested they allow the application to be submitted. In allowing the application to be submitted, City Council did not endorse or otherwise address the merits of such an amendment. STAFF COMMENTS: Staff does not support this code amendment, as written, for the following reasons: Introducing a new transferable development rights program is not recommended. The City recently created a Historic TDR program in to transfer floor azea from historic landmazk properties to non-historic properties. The Historic TDR program is in its infancy and no transactions have yet occurred, although interest has been expressed. At a minimum, this proposed amendment should rely on and bolster the existing Historic TDR program and not dilute it through creation of a new system. It is uncleaz with this proposed language whether or not the proposal is to transfer only enough floor azea to accommodate the expansion or if the intent is to first accommodate the floor azea overage and then the expansion. Staff recommends that a system of permitting oversized houses to expand should require a transfer of floor azea equal to the overage plus the expansion, not just the expansion. Q P182 Staff also believes a review process with P&Z should be included for such an action as opposed to a by-right system as proposed. A P&Z review could weigh the merits of a specific case, the benefits to the community, impacts on the neighborhood, the resulting house size, etc. The idea of permitting more than one Historic TDR to be landed per residence may be worth pursuing. The intent of the one-per-residence allowance was to reduce potential impacts on surrounding properties and not create significantly over-scaled houses. Allowing more than one TDR to be landed per residence could be administered through a Planning and Zoning Commission review to address issues of neighborhood compatibility. The P&Z should consider the application, as submitted, and render a decision on it's merits. If the P&Z does not recommend approval of the application, staff recommends a more general discussion take place regazding the merits of permitting non-conforming structures to expand through some process and the concept of permitting more than one Historic TDR per residence. RECOMMENDATION: Staff recommends the Planning and Zoning Commission recommend denial of the proposed amendment as described in Resolution No. ~ Series of 2004. If the proposal is not endorsed, Staff recommends P&Z conduct a general discussion and direct staff accordingly. RECOMMENDED MOTION: "I move to approve Resolution No._, Series of 2004, recommending approval of a code amendment to permit expansion of non-conforming structures Note: Motions should always be made in the positive and then voted upon. This eliminates the possible confusion of a failed negative motion. ATTACHMENTS: Exhibit A -Review Criteria and Staff Comments Exhibit B -Application .~, ~..e RESOLUTION N0. (SERIES OF 2004) ' P183 A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF ASPEN,. COLORADO, RECOMMENDING AMENDMENTS TO SECTION 26.312.030.0.3 OF THE CITY LAND USE CODE -NON- CONFORMING STRUCTURES TO PERMIT ADDITIONAL DEVELOPMENT ON PROPERTIES WITH AN ACCESSORY DWELLING UNIT AND WHICH ARE NON-CONFORMING WITH RESPECT TO FLOOR AREA. WHEREAS, the City Council of the City of Aspen directed the applicant to submit an amendment to the Land Use Code, pursuant to sections 26.208; and, WHEREAS, the applicant is Gideon Kaufman, Kaufrnan Peterson Dishler Attorneys, representing Leonard Lauder, property owner; and, WHEREAS, the requested amendment is to Section 26.312.030.0.3 of the Land Use Code and would permit additional development on properties with an Accessory Dwelling Unit and which are non-conforming with respect to floor azea; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Planning Director and then by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Planning Director recommended denial of amendments to the Land Use Code as described herein; and, WHEREAS, the Planning and Zoning Commission opened the public hearing to consider the proposed amendments, as described herein, on September 7, 2004, took and considered public testimony and ~vote,cCity Coun ~l adopththe prop sedDamen~'and recommended, by a - to _L-~ to the Land Use Code, as described herein. NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING AND ZONING COMMISSION OF THE CTTY OF ASPEN, COLORADO, THAT: Section 1: Pursuant to Section 26.310 of the Municipal Code, the Aspen Planning and Zoning Commission hereby recommends City Council amend Section 26.312.030.0.3 to include the following text: 26.312.030 Non-conforming structures. P184 ~ ~ (C) (3) Accessorv Dwelline Units and Camaee Houses. The only other exception to this requirement shall be for a property with a detached accessory dwelling unit (ADU) or Carriage House. Such a detached ADU or Carnage House structure may be enlazged or expanded by up to five hundred (500) squaze feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU or Carriage House and also provided that the ADU or Carriage House does not exceed the maximum size allowed for an ADU or Carriage House. The enlazgement or expansion must comply with all other requirements of this Title, and shall receive development review approval as required by 26.520, Accessory Dwelling Units, and Special Review approval pursuant to Section 26.430. The 500 squaze foot floor azea expansion maybe allowed if the unit complies with the review criteria and standazds of the Aspen Land Use Regulations Sections 26.520 including, but not limited to, a fording that the expansion shall be compatible with the chazacter of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated. Only the floor area which will increase the ADU or Carriage House beyond the legally created non-conforming floor azea (the expansion floor azea) is required to be mitigated. If the impacts of the expanded use cannot be sufficiently mitigated otherwise, an additional method for mitigating those impacts and other impacts considered in the land use review, is to transfer the 500 squaze feet of floor azea, or any amount up to 500 squaze feet, from a property with excess or unused floor area (the sending property) to the site containing the detached Accessory Dwelling Unit or Carriage House (receiving ADU/Carriage House property). The amount of the floor azea expansion bonus up to 500 squaze feet, will be subtracted from the maximum floor azea allowed on the sending property. Only available floor azea not developed or utilized on the sending site can be transferred. A deed restriction encumbering the sending site shall be recorded to reflect the extinguished floor azea which has been transferred and is no longer available for use on the sending property. In addition to the special review criteria in Section 26.520.080, floor area from a TDR may be approved pursuant to the following additional review criteria: (1) The additional floor azea is a conversion of existing squaze footage which was not previously counted in floor azea. (Example: storage space made habitable.) (2) The additional floor azea creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. (3) The additional floor azea creates a unit which is more suitable for cazetaker families. (4) The increased impacts from the lazger size aze outweighed by the benefits of ~ r.. ~.,.~ having a lazger, more desirable ADU. (5) No variance from setbacks can be required to accommodate the bonus floor area approved through this section of the Code. (6) The azea and bulk of the ADU structure, after the addition of the bonus floor azea, must be compatible with surrounding uses and the surrounding neighborhood. By way of example, a 15,000 square foot lot in the R-15 zone district is allowed 4,500 squaze feet of floor azea. If 3,500 square feet of floor area in an existing home has been developed on the property, the sending site, there is 1,000 squaze feet of excess, unused floor azea remaining. Five hundred (500) squaze feet of this unused floor area can be transferred to an ADU or Carriage House which is non-conforming with regazd to floor azea. A deed restriction limiting the allowed floor area on the sending site to 4,000 squaze feet (4,500 squaze feet allowed minus the 500 squazg pooPb~us transferred) mugst be recorded. To utilize this floor azea bonus, the receivin roe 's ADU or Carria e House after the expansion must not be lazger than the maximum size allowed APPROVED by the Commission during a public hearing on APPROVED AS TO FORM: City Attorney ATTEST: PLANNING AND ZONING COMNIISSION: Jasmine Tygre, Chair 2004. P185 Jackie Lothian, Deputy City Clerk P186 Q MEMORANDUM T0: Aspen Planning and Zoning Commission THRU: Joyce Allgaier, Deputy Director FROM: Chris Bendon, Senior Planner ,~ RE: Code Amendment -Public Hearing continued from September 7, 2004 Section 26.312.030 -Non-Conforming Structures DATE: September 21, 2004 SUMMARY: Gideon Kaufinan, on behalf of the Lauder family, has submitted an amendment to the City's Land Use Code to allow the transfer of Floor Area to accommodate the expansion of an ADU on a properly with nonconforming FAR. The P&Z reviewed the amendment on September 7~' and continued the hearing with several requests for additional information. P&Z requested an understanding of the number of properties which might be eligible for this new provision. Without an extensive FAR review of the residential inventory, it is not possible to know precisely how many properties containing ADUs aze nonconforming. Staff estimates this number is very low. If the City lowers the FAR schedule in the future, more nonconformities would be created and additional properties may be eligible for this provision. P&Z should not expect this provision to apply to a significant number of properties. Mr. Kaufman provided criteria for which a Special Review would be judged. These have been incorporated into the proposed resolution. These criteria should adequately address the circumstances of each case and staff supports these criteria. Staff has also provided criteria from the City's Historic TDR code for creating and extinguishing Historic TDRs. These have been modified to address this Floor Area transfer provision and cover such issues as analyzing a property for unbuilt FAR, deed restricting the sending site, acknowledging additional rights on the receiver site, and not creating or increasing nonconfornuties. These additional criteria maybe useful in P&Z's discussion and aze attached as Exhibit B. Lastly P&Z requested a definition Carnage Houses. Carriage Houses are essential lazger ADUs. This term was recently defined as follows: Carriage House. A deed restricted dwelling unit attached to or detached from a principal residence situated on the same lot or parcel, and which meets the occupancy, dimensional and other requirements set forth in Section 26.520 of this Title, and requirements set forth in the AspenlPitkin County Housing Guidelines. ..e The design standazds of the ADU/Carriage House section of the code states: An ADU must contain between 300 and 800 net livable square feet, 1 D% of which must. be a closet or storage area. A Carriage House must contain between 800 and 1,200 net livable square feet, 10% of which must be closet or storage area Staff recommended denial of this application due to the uncertainty of the text, a desire for these cases to be reviewed by P&Z, and a desire for the transferred floor area to rely on the City's newly-created Historic TDR program. The first two issues are addressed with the revised text. Again> P&Z may want to consider some or all of the Historic TDR criteria of Exhibit B. Staff continues to believe the floor area should be achieved through the City's Historic TDR program is recommending denial for that reason. APPLICANT: Gideon Kaufman, Kaufman Peterson Dishler Attorneys, representing Leonard Lauder, property owner. PREVIOUS ACTION: The Commission considered this application on September 7, 2004, and continued it to this date. REVIEW PROCEDURE: Text Amendment. At a duly noticed public hearing, the Commission shall recommend by Resolution the City Council approve, approve with conditions, or deny the application. RECOMMENDATION: Staff recommends the Planning and Zoning Commission recommend denial of the proposed amendment as described in Resolution No. _, Series of 2004. RECOMMENDED MOTION: "I move to approve Resolution No._> Series of 2004, recommending approval of a code amendment to permit expansion ofnon-conforming structures Note: Motions should always be made in the positive and then voted upon. This eliminates the possible confiusion of a failed negative motion. ATTACHMENTS: Exhibit A -Proposed Resolution Exhibit B -Additional Criteria adapted from Historic TDR Program P187 2 P188 ~ ~i Exhibit B Criteria adapted from Historic TDR Program 1. The development of asingle-family or duplex residence is a permitted use on the sending site, pursuant to Chapter 26.710 -Zone Districts. Properties on which. such development is a conditional use shall not be eligible. 2. It is demonstrated that the Sending Site has permitted unbuilt Floor Area, for either asingle-family or duplex home equaling or exceeding the requested Floor Area to be transferred and that the transfer will not create a nonconformity. In cases where nonconfomrity already exists, the action shall not increase the specific nonconformity. 3. The analysis of unbuilt development right shall only include the actual built development, any approved development order, and the allowable development right prescribed by zoning for asingle-family or duplex residence, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similaz potential development incentives. 4. If the sending site has a Development Order to develop a site-specific development plan-which can no longer be developed due to Floor Area being transferred from the property, then that Development Order shall be considered null and void. If the sending site has a Development Order which is unaffected by the transfer of Floor Area, then that Development Order shall remain valid. 5. The proposed deed restriction permanently restricts the maximum development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for asingle-family or duplex residence (whichever is established as the property's use) minus the amount of Floor Area transferred. 6. For properties with multiple or unlimited Floor Areas for certain types of allowed uses, the maximum development of the property, independent of the established property use, shall be the Floor Area of asingle-family or duplex residence (whichever is permitted) minus the amount of Floor Area transfen•ed. 7. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a squaze footage reduction from the allowable Floor Area for asingle-family or duplex residence, as may be amended from time to time. The Sending Site shall remain eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. 8. It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required for the confumation of built Floor Area. 3 r°' . ,• P189 9. The Receiving Site is not restricted by a prescribed Floor Area limitation or the restricting document permits the extinguishment of Historic TDR Certificates for additional development rights. 10. All other necessary approvals for the proposed development on the Receiver Site, as established by this Title, have been obtained. 11. The applicant has submitted the necessary materials for a building pemut on the Receiver Site, pursuant to Section 26.304.075, Building Permit, and the additional development can be accommodated on the Receiver Site ni conformance with all other relevant requirements of the Land Use Code. The transfer of Floor Area shall not permit the creation of anon-conforming use or structure. 12. Prior to, and as a condition of, issuance of a building permit on the Receiver Site for a development requiring the transferred Floor Area extinguishment of a Historic TDR Certificate(s), the Sending Site property owner shall execute and deliver a deed restriction lessening the. available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. 13. The Community Development Director shall issue a letter confirming the transfer of Floor Area and increasing the available development rights of the Receiver Site. The applicant may wish to record this document with the Piktin County Clerk and Recorder. The confirmation letter shall not stipulate an absolute total Floor Area, but shall stipulate a squaze footage increase from the allowable Floor Area, according to the zone district and land use of the Receiver Site at the time of building permit submission. The Receiver Site shall remain subject to amendments to the allowable Floor Area and eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The form of the confirmation letter shall be acceptable to the City Attorney. 4 P190 RESOLUTION N0. _ (SERIES OF 2004) '"i A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF ASPEN, COLORADO, RECOMMENDING DENIAL OF AMENDMENTS TO SECTION 26.312.030.0.3 OF THE CTTY LAND USE CODE -NON-CONFORMING STRUCTURES TO PERMIT ADDITIONAL DEVELOPMENT ON PROPERTIES WITH AN ACCESSORY DWELLING UNIT AND WHICH ARE NON-CONFORMING WITH RESPECT TO FLOOR AREA. WHEREAS, the City Council of the City of Aspen directed the applicant to submit an amendment to the Land Use Code, pursuant to sections 26.208; and, WHEREAS, the applicant is Gideon Kaufrnan, Kaufman Peterson Dishier Attorneys, representing Leonard Lauder, property owner; and, WHEREAS, the requested amendment is to Section 26.312.030.0.3 of the Land Use Code and would permit additional development on properties with an Accessory Dwelling Unit and which aze non-conforming with respect to floor azea; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Planning Duector and then by the Planning and Zoning Commission at a public hearing. Final action shall. be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Planning Director recommended denial of amendments to the Land Use Code as described herein; and, WHEREAS, the Planning and Zoning Commission opened the public hearing to consider the proposed amendments, as described herein, on September 7, 2004, and continued to October 5, 2004, took and considered public testimony and the ,~~ ~,~ recommendation of the Planning Director and voted against, thr~~favof}#ofour n pti.~;„ ~q`.~; recommending adoption of the proposed amendments to the Land Use Code, as described in the land use application submitted by Gideon Kauflnan. WHEREAS, the failed motion to recommend approval is considered a recommendation to not approve the project. NOW, THEREFORE BE IT RESOLVED by the Commission that City Council should not approve the proposed amendments to the Land Use Code, as described in the land use application submitted by Gideon Kaufman. APPROVED by the Commission during a public hearing on October 5, 2004. Planning and Zoning Commission Resolution No. ~ Series of 2004 Page 1 r APPROVED AS TO FORM: City Attorney ATTEST: Jackie Lothian, Deputy City Clerk planning and Zoning Commission Resolution No. _> Series of 2004 Page 2 PLANNING AND ZONING COMA'IISSION: Ruth Kruger, Vice Chair P191 Pis2 C '~ 7COMMENTS ........ ......... .. -,. ..,...N.an ...r nr....r.ft:... `~_:!z........ :?;° .....2 1Y111V V 1T.S ......... .............v p'. "a Y... ....a LJ ..ida4:zs.. ..'` s'W. j... .... Z DECLARATIONS OE CONFLICTS OF' II~`TERIST .,.. .. . z INNSBRT7CK'T~VT~71i~1II~70I~~~~TIlISIARE~REPfBW ..... .................2 CODEAMENDMENT - TRANSFRRA$LE I)E~VEI;C~PNT RIGHTS .............. 9 i .w ,_ oil and grease interceptor in the multi piapose room/latcl?en._„23.,.:Tl?@.Applicant shall join any futar'e improvement districts th91 are formed tP complete future C+tY aPPro?'~ ~prO1'~nts to tlFe adjoining/ surrounding right-of-ways. 14, All exterior lighting shall meet t1~e Gth' o.~"AsRen Lighting code pursuant to Land Use Code Section 26,575.150, Outdoor Lighting, as may be ame h t~ ~~e o Colorado's • All design, installation, and maintenance of the pool and spa must h mph drained d" ectl into the sanitary "Swimming Pool and Mineral Bath Re~ulatwns Po.P e A licaaE musth4Y Pen Consolidated . sewer and shall not ¢e drained into,the sform. Se~Yer ,T13,,,2 pP,,, ,_., ..: _ . .- - Sanitarion Drstriet approve the drain size for-the swimmingpooT and spa before instalTsig them 26. Each owner of an estate shall have an undivided interest. i>& the 4pmmon recreatiotutl.amas within the facility. 17. The Applicant shall pay the applicable school land dedicatgn fees as determined by the City` ofrLspen Zoning OJ}icer prior to building permit issuimce 28 fill, unsold times .hare u>~{~,at are nyPt used.by the Applicant for exchange, marketing or promotional purposes shall be made available for short-term rent until purchased. This condrign shall be included"~.n,th, e PUD/SubdG„vrsion Agreement to be recorded in the Pitkin County Clerk and Recorder's Once. 29. Nothing n the timeshare doauineiits shall prohibit short-term rentals or occupancy. It is the a tenses wwhen rso~iPCCUpt~d by the purchaser or restricted units shall be,avatlable for short-term. rental p rp , its guests or utilized for exchange programs. The Applicant shall submit timeshare documents to the City Attorney for review and approval prior to recording th'ein at the of jtce of the Pitkin County Clerk and Recorder. 30 The Applicant shall maintain the option of signing up to two (2) onstreet par ' g spaces adjacent to llle lnnrbruFk inn as short,;e~rm dropo•~'parlang for guests checking in aril. checlaag out. If the Applicant chooses to sign up 1o two (2) on-street,parlang sg4ces as short-term e~i'oP-o.$~Parldn& they may sign the spaces either on Main Street qr South.Seg.Pnd Street _ SeCbn; ~y ~y Ott Johns. Roll -call YQte _ Skadron, yes; Rowland, yes; Johns, yes, Kruger, no; Tygre yes. APPRQYED 4.-1. ., , . PUBLIC HEARING:... -•- - _ - CODE AMENDME - .,~_.. - -- Jasmine Tygre opened the public hearing for the' DK Code. Amendment, notice was.provided. Joyce Allgaier explained that Gideon Kaufman presented this code amendment on behalf of the Lauder. fam_„ily. City Council requested per Gideon Kaufman this code. amendmenLand afler,th,,e,P&Z review: it will go to Council. Allgaier stated the former code granted floor area bonuses for 50% s for detached ADIJs and another 50% for deed-restricted A,,,,,,~DUs so in this situationth~esADU was ,.: . 100% exempt from the floor area. charge. The Laiider's built the mom residence to . the maximiirii~loor area. Allgaier said. after this was built. there was a code change that required ADUs to be detached and,the floor area exemption was revoked. _. . unless it were condnminiumizedand sold to a worlang resident, That was what . made this property non-conforming; the Lauder property was a legally created non- conforming ADU. The applicant's wanted to co~Yert the basement uito.livable _ ,,. space. Staff identified 2_ options that could exist where the Landers decreased the' size of their house in order to add to the, floor area of the ADfJ or. deed restrict, and, .,, , , , , _ sell the ADU and neither option was being sought by the applicant at this time. 9 P194 ~ ~ ~ ~ ~~ Staff did not recommend approval because it was unclear if the proposal was to allow only enough floor area to accommodate the expansion or that the TDR purchase would make up for the deficit. The proposal was for a by right system and staff felt it should be a special review to weigh in on each case-by-case scenario. Allgaier said there was the possibility of a number of applications but were not sure how many and would like to see the fledgling HPC TDRs get under way before adopting another TDR program. Gideon Kaufman, represents the proponent of this code amendment, said that a detached and deed-restricted ADU created floor'area exemptions for the residence; the code changes created the non-conformity. Kaufman said when the ADU was built there was a kitchen, bath, bedroom and living azea and below grade there was an existing office, storage, mechanical and a full bathroom. $ecause it didn't have the required ventilation and light it didn't count iri FAR. Kaufman said it was probably the best ADU built in Aspen but they have tried to figure out how to accommodate the growing needs of a family. If 2 window wells were added for the required light and ventilation then the FAR counts and you cannot add FAR because it was non-conforming. Kaufman said that was why they came forwazd with the proposed code amendment to help these detached and mandatory rented ADU units; he distributed an amendment to the code amendment adding special review. These TDRs from free-market housing can only be transferred to an ADU and would only count for the amount of square footage added. Kaufman illustrated through photos. and drawings the placement of the window wells. Kaufinan restated the floor azea would be utilized from free-market to enhance Affordable Housing Program; it would be positive for the community. Jasmine Tygre inquired about the number of ADUs .that would be affected by the code amendment. Kaufman said the size of the ADU has also increased and at special review P&Z would make the decision. Johns asked why the TDR part of this speak to the free-market and not tie into the Historic TDR program. Kaufinan replied the Historic TDR program means that a TDR can only come from a Historic structure; those TDRs are. worth $100,000.00 to $150,000.00 per TDR, which makes sense because it is free-market value but if you increase an employee unit they don't want to pay those TDR prices. Tygre asked where these TDRs would come from that would be so much cheaper. Kaufman replied that there were a few properties and the. TDR would include deed-restrictions but Historic TDRs could not be used for this program. io P195 ,.. ,., ~~ , _ .-.,...: Steve Skadron asked how the TDR receiving:property would be able to accept the TDR if it was built to what was at the time the maximum and now why would it be acceptable. Allgaier replied that was one of issues. Kaufman responded it was only for the affordable housing program and would not exceed what the code allowed for the ADU to be expanded up to. Tygre asked what the criteria would be cited. Kaufinan replied the code for special review, compatibility with the neighborhood, impacts on water and sewer. Tygre stated that everything was in pieces and it was not clear what P&Z was to vote on; those criteria were not included. Kaufman answered it was referenced in the code. Tygre said she wanted all the pieces in front at the same time and how many properties were involved in this type of situation. Skadron asked the size of an ?,DU. Johns replied the size ranged from 300 to 900 square feet net livable. The commissioners voiced concern for the incomplete information on the number of units that could be affected; the specific criteria for the special review; specific and detailed restrictions on the sending party, site specificity; the addition of dimensional requirements regarding the detached ADU and enforcement. The commissioners'were concerned about the TDR program. MOTION: Steve Skadron moved to continue the public hearing for the TDR Code Amendment to September 21, 2004; seconded by Ruth Kruger. APPROVED S-0. Meeting adjourned at 7:00 p.m. J ckie Lothi ,Deputy City Clerk 11 P196 ~'. ASPEN PLANNING.& ZONING COMi~TISSION-Minutes -October 05.2004 COMMENTS ....................... .......:...... ......:.k:.:........ ....,;.. ...:;,......,......,~~,~: 2 MINV I~ES ...................................L..........................:...:n.......w.....r...pr:;w::..;.c ru:;rc.~ixti<arr.::.msw~r,:u:: 2 DECLARATIONS. QF CONFLICTS OF INTEREST ::..............:...:.:.............................. 2 CODE AMENDMENT-TDI,t.' S ........:................ LOT 1, ODEN LOT SPLIT STREAIvI MARGIN REVIEW'.: ..........::.......:............:...:;. 4 707 E. HYIVIAN CONDITIONAL USE FOR COMMERCIAL PARING LOT•... 5 ~'' `"'' P 19 7 Ruth Kruger opened the regular meeting of the Aspen Planning & Zoning Commission in Sister Cities Meeting Room. Commissioners Brandon Marion, Ruth Kruger, Jack Johnson, Jolm Rowland and Steve Skadron were present. Staff in attendance:- David Hoe€er, Assistant City Attorney, Chris Bendon, Chris Lee, James Lindt, Community Development; Jackie Lothian, Deputy City Clerk. CO_ MMENTS Ruth Kruger hoped this meeting would adjourn by 6:45 p.m. Kruger inquired about the new windows in the Elli's building and asked if they were historic or went through a historic review process. James Lindt will follow up on Ellis. , MINUTES MOTION.• Jack Johnson moved to approve the minutes from July 27, August 03'x, 11`k and 17`x, September 7`h and 21r' 2004; seconded by Steve Skadron. Rowland, Johnson -and Skadron approved the minutes, Motion Carried. None stated. CONTINUED PUBLIC HEARING (09/21/04): CODE AMENDMENT-TDR'S Ruth Kruger opened the continued public hearing on the Code Amendment; Chris Bendon noted this was a continued hearing from 9/215L. There were 5 members present for this hearing. Gideon Kaufman addressed the 2 items that concerned P&Z and placed suitable review by Planning & Zoning and staff: Kaufrnan raised questions regarding staff's interpretation that the only way.to accomplish this was through the Historic TDR Program. Chris Bendon stated there was concern that this would take away from the Historic TDR Program, which has not yet been proven. Kaufman said this code amendment was for this ~so the cannot aaa i window changes, which has made this anon-conforming Y wells to make the downstairs legally 2 bedrooms. Kaufman said their TDR code amendment was only used for employee housing; their TDR program enhances only affordable housing and doesn't have the same mark-up as the Historic TDR Program so they are not taking from that existing Historic TDR Program but th for are creating a market from the surplus offree-market housing and convening the community. Kaufrnan said that each special review would go through P&Z for approval for each particular situation, which accomplishes a valuable community goal. Kaufrnan provided the criteria for P&Z to follow. Z Ruth Kruger asked where-the TDIZ was coming from. Kaufman replied that it was from afree-market house that did not want to.use all of the FAR allowed. Kruger reiterated that Kaufman was creating a new program (code amendment) .that would create sending sites that were not historic and opeiunp the market_for a larger opportunity taking FAR from afree-market house to an ADU.` Bendon re- stated concern for the demand and the Historic Program could leverage the TDRs. Jack Johnson asked if the cone had never been changed would there have been sufficient FAR on this property to amend this ADU. Bendon answered no, Johnson asked if the transferred floor area must accommodate the extent ofthe non-conformity plus the expansion or if only just the floor area has been resolved. Bendon replied that Joyce covered the first meeting on this and P&Z addressed that question by saying that you'should only cover the amount that is necessary to accommodate the actual expansion and should have to first cover the overage. Johnson asked the overage. Bendon answered it was 750 square feet. Johnson stated thaf was only created because the bonuses were taken away, correct. .Bendon explained that between 1999 and 2602 where there were 2 bonuses for ADUs; one for detached ADUs that provided 50% bonus and the other was for mandatory occupancy. Bendon said there were 3 mandatory occupancy ADUs created and this was the only: one occupied. Bendon said in 2002 the bonuses were. taken away and the only way to ensure the 100% bonus was if the ADU was sold - through the housing lottery system. Johnson asked by simply selling this ADU to the family that was living there was insufficient without a TDR.~ Bendon repliecT that.was correct. , _. . ..:. Public Comments: . Lynn and daughter, who live m this ADU, were present:. Kaufinan stated that when this unit was legally built it was mandatory rental. Kaufman stated that this code change would allow this ADU to expand and continue to house this family. Bob Staradoj, public, asked if there had ever been a case where an ADU on site has been sold. Bendon replied no; the community was looking.for the first one io be sold. Bendon added if the ADU were sold the property owner would gain a 100% of the FAR, which was exempt and the property owner gains an additional 50% FAR bonus. David Hoefer reiterated that the commission was not dealing with'a specific case for this code amendment. Bert Myrin, public, stated that the code that Jack and Chris spoke about gave an incentive to the employee side and what was presented tonight was from the _ ,. employee side not the owner 'side. Myrin reiterated what Cliris slated for the ~ ~~ . bonuses. 3 `"~ P199 John Rowland stated that he was in favor of this code change and the only negative aspect was administrative for,staff; he said that staff could handle. the. challenge. Steve Skadron shared John's thoughts considering the restrictions placed on the economics on the property and there was a viable argument for this but Skadron also shared Jack's concern of getting this done under the.current code. rather than. actually. changing the code: , Jack Johnson stated 3 issues: there were. ways that this could be done for this family under the existing code; this code change was in the best interest for this applicant. but not for the city and voiced concerned about the TDR sending and receiving sites. Brandon Marion mirrored Jack's no vote because of the far- reaching effect on the entire city. Ruth Kruger asked how long the historic TDR program has been in existence and the number of applications to date. Bendon replied it has been iri place for about 7 months and there was one application pending. Kruger said that the vote on this. code change wouldn't diminish a program that wasn't being utilized. Kruger did , not see a problem with this application and P&Z would look at each application for these types of situations. MOTION: Brandon Marion moved. to approve Resolution #30, 2004 recommending approval of a code amendment io permit expansion of non- conforming structures; seconded by Steve Skadron. Roll call vote: Rowland, yes; Skadron, no; Johnson, no; Marion, no; Kruger, yes. DENIED 3-2. Bendon asked the commission if there was a particular element of this code amendment that if it were different then you would support it. Marion replied he liked the concept of giving FAR to affordable housing but wanted a more comprehensive plan than the one presented. Johnson said it would have to be a last resort .otherwise more big houses were. being created and Johnson wanted the Historic TDR Program to prove itself prior to creating another TDR program. Chris Bendon introduced Chris Lee the new planner. PUBLIC HEARING: LOT 1 ODEN LOT SPLIT STREAM MARGIN REVIEW Ruth Kruger opened the public hearing for the Stream Margin Review for Lot of the Oden Lot Split. David Hoefer said that the notice was received and the requirements have been'met; the commission had jurisdiction to proceed. James Lindt stated that the Stream Margin Review was to determine the top of slope; Lot 4 ~ P201 EXHIBIT C MEMORANDUM TO: Mayor Klanderud and Aspen City Council THRU: John Worcester, City Attorney Joyce Allgaier, Deputy Director FROM: Chris Bendon, Senior Planner gE; Code Amendment -Section 26.312.030 -Non-Conforming Structures Second Reading of Ordinance No. 35, Series of 2004 DATE: November 22, 2004 SUMMARY: Gideon Kaufrnan, on behalf of the Lauder family, has submitted an amendment to the City's Land Use Code. The amendment would permit the development of additional floor azea on a property that currently exceeds its maximum allowable floor azea. The additional floor area would be transferred from another property through a new TDR program. The specific case involves an Accessory Dwelling Unit that was built, along with the primary residence, with certain floor azea bonuses that have since been removed from the Land Use Code. The Background section of this memo goes into greater detail. Staff is not supporting the code amendment as proposed and is recommending denial. Staff strongly prefers any transfer of floor azea use the fledgling Historic TDR program. Anew TDR program may dilute the potential of the Historic TDRs. During the Planning and Zoning Commission review, 'two other aspects of the proposed code amendment were addressed. Clarification was provided on whether the transferred floor azea must accommodate the extent of the nonconformity plus the expansion or only just the expansion floor azea. The proposed text was revised to clarify that TDRs would only be needed to cover the expansion, not the current overage. The second issue dealt with staff and P&Z's preference for a system whereby a P&Z review of the specific case is required - not a "by-right" system. The proposed text was amended by the applicant to this effect. . The Planning and Zoning Commission recommended denial by a three to two (3 against, 2 for) vote. Staff is also recommending denial of this proposed code amendment. Staff would support this amendment if it relied on the Historic TDR Program. Minutes of the P&Z hearing aze being prepazed and will be provided for second reading. 1 P2o2 ~ . ,. APPLICANT: Gideon Kaufman, Kaufrnan Peterson Dishier Attorneys, representing Leonazd Lauder, property owner. PREVIOUSAcTIOx: The Commission recommended denial of this code amendment by a three to two (3-2) vote. REVIEW PROCEDURE: Text Amendment. At a duly noticed public hearing, the City Council shall approve, approve with conditions, or deny the application. BACKGROUND: The Lauder residence and ADU were built in compliance with the City's Floor Area code, which has since been amended. The former code granted two floor azea bonuses for Accessory Dwelling Units. Fifty percent of an ADU's floor azea was exempt if the ADU structure was detached from the primary residence and another 50% was exempt if the ADU was deed restricted to mandatory occupancy. Together, a 100% exemption was available for an ADU that was both detached and mandatory occupancy. The. Lauder ADU qualified for this 100 % exemption and the primary house was developed to the maximum size considering the bonus. During the period of this mandatory occupancy floor azea bonus, three ADU's were developed with a mandatory occupancy restriction. The City experienced significant difficulty in administering the mandatory occupancy and, in 2001, decided to remove this option from the code altogether. The ADU code was amended to require ADUs be detached to gain a growth management exemption for the primary residence and the floor azea exemption was retooled to provide a 100% exemption only if the ADU was condominiumized and sold to a local working resident through the Housing Authority's Guidelines. The program allows the property owner to choose the first purchaser, as long as that person qualifies through the. Housing Guidelines. At the same time as eliminating the mandatory occupancy bonus, the City amended the code to provide a process of removing the mandatory occupancy restriction from an existing ADU through a landowner provision of either anoff--site deed restricted unit or a cash-in-lieu payment equal to the market value of the bonus azea. This was done in response to a landowner with a mandatory occupancy ADU. The City's code amendment in 2001 made the Lauder property a "legally created non- conformity." Specifically, the Lauder ADU no longer qualified for a floor area exemption and the property contained too much floor area. The City's non- conforming regulations allow legally created non-conformities to exist in perpetuity, but prohibit expansions of the non-conformity. (i.e. a house that is over it's floor azea cannot be added onto.) 2 P203 The Lauder ADU is a one-floor unit developed over a storage basement that was also exempt from the calculation of floor azea. The storage area was purposely developed as non-inhabitable space (no window wells) to maintain it being exempt from floor azea. Basement levels count towards floor azea proportionately to the extent they aze exposed. Window wells increase the exposure and require more of that basement level to count towards the property's total Floor Area allowance. The Lauder family now wants to convert the basement to habitable space to accommodate the caretaker's expanded family. To do so requires the installation of window wells to serve as emergency egress, requiring floor area. The non- conforming status of the property prevents any additional floor area to be developed although two development options exist. A no-net-gain plan, whereby the increase in floor azea on the ADU would be balanced with an equal floor area reduction to the primary house, and deed restricting the ADU and selling it to the cazetaker. Neither of these options have been sought. A building permit to install window wells in the ADU structure was submitted to the Building Department and denied due to a lack of floor area. The improvements were built without a permit and the construction was "red tagged" by the Building Department. The improvements were then removed and the property returned to its previous condition. Code amendments can be initiated by the Planning Director, the P&Z, or the City Council. Amendments can be initiated by a private party if one of the three bodies allows the application. The applicant requested staff initiate a code amendment to alleviate this circumstance and staff declined to initiate the action. The applicant approached City Council and requested they allow the application to be submitted. In allowing the application to be submitted, City Council did not endorse or otherwise address the merits of such an amendment. STAFF COMMENTS: Staff does not support this code amendment. Introducing anew transferable development rights program is not recommended. The City recently created a Historic TDR program to transfer floor azea from historic landmark properties to non- historic properties. The Historic TDR program is in its infancy and no transactions have yet occurred, although interest has been expressed. A potential applicant has pre-app'd with staff and a potential 16 Historic TDRs could be created. At a minimum, this proposed amendment should rely on and bolster the existing Historic TDR program and not dilute it through creation of a new system. oa e Historic TDR Program was established to facilitate an important community g the preservation of historic resources - and a demand for Historic TDRs is critical for the program's viability. 3 P204 ..i The applicant has clarified the proposed text addressing whether or not the proposal is to transfer only enough floor azea to accommodate the expansion or if the intent is to first accommodate the floor azea overage and then the expansion. The text was also amended to require a P&Z review to weigh the merits of each specific case, the benefits to the community, impacts on the neighborhood, the resulting house size, etc. RECOMMENDATION: Staff recommends City Council not adopt this ordinance. Staff does support a similaz code amendment which relies on the Historic TDR Program for transferring squaze footage. CITY MANAGER'S COMMENTS: RECOMMENDED MOTION: "I move to approve Ordinance No.35, Series of 2004." ALTERNATE MOTION: "I move to approve Ordinance No.35, Series of 2004, with the amendments described in Exhibit D." ATTACHMENTS: Exhibit A -Review Criteria and Staff Comments Exhibit B -Application (provided with I5` reading packet) Exhibit C - P&Z minutes. Exhibit D -Proposed amendments to Ordinance to use Historic TDR Program. 4 ,-, `' P205 Exhibit A Non-Conforming Structure Amendment STAFF COMMENTS: Text Amendment Section 26.310.040, Standards Applicable to a Land Use Code Text Amendment In reviewing an amendment to the text of this Title, the City Council and the Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this title. Staff Finding: The proposed code amendment intends to create a process to allow a properly owner to expand anon-conforming structure by transferring floor azea from another property. The proposed text does not cleazly indicate whether the floor azea by which the structure is non-conforming (the overage) is to be part of the required floor azea transferred. This ambiguity needs to be corrected. Otherwise, the text will need to be interpreted prior to its use. Staff does not believe this standazd is met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Comprehensive Plan. Staff Finding: The AACP speaks to both limiting the size of houses, for community chazacter reasons, and promoting affordable housing opportunities, especially by the private sector. This code amendment could address both issues by transferring floor azea from one lot to another and by increasing opportunity for affordable housing. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. Staff Finding: This amendment is proposed for all residential zone districts and is not specific to one pazcel. D. The effect of the proposed amendment on traffic generation and road safety. E. Whether and the extent to which the proposed amendment would result in demands on public facilities, and whether and the extent to which the proposed amendment would exceed the capacity of such facilities, including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools, and emergericy medical facilities. staff comments page 1 Pzos ~ ~ F. Whether and the extent to which the proposed amendment would result in significant adverse impacts on the natural environment. Staff Finding: The proposed amendment does not allow for any density changes and no impacts on infrastructure aze expected as a result of the amendment. G. Whether the proposed amendment is consistent and compatible with the community character in the City of Aspen. Staff Finding: The amendment would make it easier to make an addition to existing ADUs located on lots where more than the allowable floor azea has been developed. The flexibility for ADUs is compatible with community chazacter. The increase in allowable square footage for a particulaz lot could be out of scale with surrounding properties and could be considered out of chazacter. Without a review process to determine the neighborhood compatibility of each use of this code amendment, staff does not believe this standazd is met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Finding: The amendment is not specific to one pazcel. I. Whether the proposed amendment would be in conflict with the public interest, and is in harmony with the purpose and intent of this title. Staff Finding: This proposed amendment could dilute the potential of the recently adopted Historic Transferable Development Rights Program. This would occur if any property could become a sending site for floor azea. Staff believes this represents a conflict with the public interest -namely the public interest of preservation of historic resources through the Historic TDR program. staff comments page 2 P207 Ordinance No. 35 (SERIES OF 2004) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE TEXT OF THE LAND U5E CODE TO PERMIT ADDITIONAL DEVELOPMENT ON PROPERTIES CONTAINING AN ACCESSORY DWELLING iJNIT AND WHICH ARE NON-CONFORMING ~ OF ASPEN LAND USE COD NON CONFO 6RMING STR CF'TURES.ITY WHEREAS, the City Council of the City of Aspen directed the applicant to submit an amendment to the Land Use Code, pursuant to sections 26.208; and, WHEREAS, the applicant is Gideon Kaufman, Kaufrnan Peterson Dishler Attorneys, representing Leonazd Lauder, property owner; and, WHEREAS, the requested amendment is to Section 26.312.030.0.3 of the Land . Use Code and would permit additional development on properties with an Accessory Dwelling Unit and which are non-conforming with respect to floor azea; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Planning Director and then by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Planning Duector recommended denial of amendments to the Land Use Code as described herein; and, WHEREAS, the Planning and Zoning Commission opened the public hearing to consider the proposed amendments, as described herein, on September 7, 2004, and continued October 5, 2004, took and considered public testimony and the recommendation of the Planning Director and recommended, by a three to two (3-2) vote, City Council not adopt the proposed amendments to the Land Use Code, as described herein. WHEREAS, the Aspen City Council has reviewed and considered the application according to the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, the planning and Zoning Commission, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council fords that the application meeting or exceeding all applicable standazds of the land use code of the City of Aspen Municipal Code and that the approval of the proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. Ordinance No. 35, Series of 2004 Page 1 ~ .~, P208 '~ NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF A5PEN, COLORADO as follows: Section 1: Section 26.312.030.0 of the City of Aspen Land Use shall include a new subsection 3 to read as follows: 3. Accessorv Dwelline Units and Carriaee Houses. The only other exception to this requirement shall be for a property with a detached accessory dwelling unit {ADU) or Carnage House. Such a detached ADU or Carriage House structure may be enlazged or expanded by up to five hundred (500) squaze feet of floor area, provided that this bonus floor azea shall go entirely to the detached ADU or Carriage House and also provided that the ADU or Carriage House does not exceed the maximum size allowed for an ADU or Carriage House. The enlazgement or expansion must comply with all other requirements of this Title, and shall receive development review approval as required by 26.520, Accessory Dwelling Units, and Special Review approval pursuant to Section 26.430. The 500 squaze foot floor azea expansion may be allowed if the unit complies with the review criteria and standazds of the Aspen Land Use Regulations Sections 26.520 including, but not limited to, a fording that the expansion shall be compatible with the chazacter of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated. Only the floor azea which will increase the ADU or Carriage House beyond the legally created non-conforming floor area (the expansion floor azea) is required to be mitigated. If the impacts of the expanded use cannot be sufficiently mitigated otherwise, an additional method for mitigating those impacts and other impacts considered in the land use review, is to extinguish Historic Transferable Development Rights, pursuant to Chapter 26.535, up to a maximum of 500 squaze feet. In addition to the ability to extinguish a Historic Transferable Development Right, as discussed above, an ADU deed-restricted as a Mandatory Occupancy unit, and only an ADU unit that is deed-restricted as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of 500 squaze feet from anon-historically designated property that has sufficient available floor azea pursuant to the special review procedures detailed in this section. In addition to the special review criteria in Section 26.520.080, floor azea from a TDR may be approved pursuant to the following additional review criteria: (1) The additional floor area is a conversion of existing squaze footage which was not previously counted in floor area. (Example: storage space made habitable.) Ordinance No. 35, Series of 2004 Page 2 P209 (2) The additional floor azea creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. (3) The additional floor azea creates a unit which is more suitable for cazetaker families. (4) The increased impacts from the lazger size are outweighed by the benefits of having a larger, more desirable ADU. (5) No variance from setbacks can be required to accommodate the bonus floor azea approved through this section of the Code. (6) The area and bulls of the ADU structure, after the addition of the bonus floor azea, must be compatible with surrounding uses and the surrounding neighborhood. (7) Historic Transferable Development Rights, commensurate with the floor azea expansion, aze extinguished pursuant to Chapter 26.535 -Historic Transferable Development Rights. (8) For the transfer of allowable squaze footage up to 500 squaze feet from anon- historically designated property to an ADU deed-restricted as a Mandatory Occupancy unit, the Applicant shall record an instrument in a form acceptable to the City Attorney removing floor azea from the sending property to the Mandatory Occupancy ADU. Section 2: All material representations and commitments made by the developer pursuant to the development proposal approvals as herein awazded, whether in public hearing or documentation presented before the Community Development Department, or the Aspen City Council, aze hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by other specific conditions. Section 3: This Ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Ordinance No. 35, Series of 2004 Page 3 a2i o ~ --• Section 5: A public hearing on the Ordinance was held on the 22"d day of November, 2004, at 5:00 in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 6• This ordinance shall become effective thirty (30) days following fmal adoption. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the _day of _, 2004. Attest: Kathryn S. Koch, City Clerk Helen Kalin Klanderud, Mayor FINALLY, adopted, passed and approved this _ day of Attest: Kathryn S. Koch, City Clerk Helen Kalin HIanderud, Mayor Approved as to form: John Worcester, City Attorney Ordinance No. 35, Series of 2004 Page 4 MEMORANDUM TO: Mayor Klanderud and Aspen City Council THRU: Steve Barwick, City Manager John Worcester, City Attorney FROM: Chris Bendon, Community Development Director .~, `'' P211 RE; Reconsideration of Ordinance No. 35, Series of 2004 Code Amendment for Non-Conforming Accessory Dwelling Units DATE: January 10, 2005 SUMMARY: On November 22, 2004, City Council considered Ordinance No. 35, Series of 2004, and voted to adopt it by a 3 to 2 vote. At the next regulaz City Council meeting, December 13, 2004, City Council voted to reconsider the Ordinance with specific questions regarding the number of Historic TDRs the Ordinance allows to be transferred to a property. The Ordinance was amended during the motion ando ec~scon ttaining anant Accessory squaze feet to be transferred to anon-conforming p p rty Dwelling Unit through the City's Historic TDR Program. This equates to two (2) TDRs of 250 squaze feet each. The amended Ordinance also permits up to 500 square feet to be transferred from anon-historic property to anon-conforming property contain an ADU which is restricted to Mandatory Occupancy. There is no TDR equivalency for this second option, only a squaze footage limit. The specific question relates to the number of TDRs which Council intended to be transferred to any one property through Ordinance 35. City Planner James Lindt, who presented the amendment, recalls the discussion leading up to the motion as involving a total limit of 500 squaze feet, equivalent to two TDRs of 250 squaze feet each. The code amendment application, submitted by Gideon Kaufman, requests the ability to transfer 500 squaze feet and the Applicant's recollection of the hearing is that the ability to transfer 500 squaze feet was approved. City Clerk Kathryn Koch listened to the tape of the hearing. The motion included reference to a maximum of 500 square feet and the discussion included a clarifying question from Planner Lindt. Verbatim minutes are attached. Staff believes Council's intent was to permit up to two Historic TDRs (500 squaze feet) to be transferred to anon-conforming property containing and Accessory 1 Pzi2 ~ -~, .~ Dwelling Unit and up to 500 squaze feet to be transferred from anon-historic property to anon-conforming properly containing an ADU restricted to Mandatory Occupancy. Based on this review of the record, staff recommends City Council approve Ordinance No. 35, Series of 2004, as amended. STAFF COMMENTS Planning staff is satisfied with the result of the code amendment discussion of November 22nd. Staff originally objected to the creation of another TDR program as staff believed it could detract from the Historic TDR Program. The result of Council's discussion on November 22"d is satisfactory in that it relies on the Historic TDR Program in all cases accept when the Accessory Dwelling Unit is restricted to Mandatory Occupancy. There aze three properties containing ADUs restricted to Mandatory Occupancy and staff does not believe this represents a significant threat to the Historic TDR Program. Staff believes Ordinance 35, as amended, represents a reasonable solution. Staff amended Ordinance 35 according to the motion of November 22"d. These amendments aze reflected in the attached version of Ordinance 35, Series of 2004. CITY MANAGER'S COMMENTS: RECOMMENDED MOTION: "I move to approve Ordinance No. 35, Series of 2004, as amended." ATTACIiMENTS: A -Proposed Ordinance 35, Series of 2004. B -City Council verbatim minutes of 11.22.04 motion and discussion. 2 _____.~--P 21~3 ................................................ 2 CITIZEN PARTICIPATION ...................................... .................................... 2 COUNCILMEMBER COMMENTS .................................... ........................................................................ 3 CONSENT CALENDAR .................... ........3 • Resolution #122, 2004 -State Rehabilitation Tax Credits ............................. • Resolution #117, 2004 - Contract Pazking Gazage Equipment ...................... • Minutes -November 8, 2004 .......................................................................... .............................. 3 FIRST READING OF ORDINANCES ..................................... ....... 3 Ordinance #38, 2004 -Fees ............................................................................. Ordinance #41, 2004 -Utility Rates ....................................................................... 3 .......................... 3 Ordinance #42, 2004 -Supplemental Appropriation ................... • Ordinance #43, 2004 -Code Amendment -Historic Benefits .............................. 3 • Ordinance #44, 2004 - De-listing From Historic Inventory 308 and 719 E. 3 Hopkins ................................................................................................................. ....... 3 Ordinance #45, 2004 -Aspen Meadows SPA Amendments .......................... RESOLUTION #114, SERIES OF 2004 -Highlands Villas Annexation 5 Compliance With State Statute ................................................................................ RESOLUTION #115, SERIES OF 2004 - Bar/X Annexation .......................... 6 RESOLUTION #116, SERIES OF 2004 - AMCORD/AVLT Annexation ... 8 RESOLUTION #120, SERIES OF 2004 -Burlingame Affordable Housing Conceptual PUD ............................................................................................................. 9 ORDINANCE #35, SERIES OF 2004 -Code Amendment Non-Conforming ............................. 14 ............................ ...... . Structures ........................ .... ............................ ORDINANCE #36, SERIES OF 2004 -Chart House GMQS Allocation.... 16 ORDINANCE #37, SERIES OF 2004 -Aspen Consolidated Sanitation .... .......................... 17 District PUD/Master Plan .......................... ................................ . RESOLUTION #118, SERIES OF 2004 - Adoption of 2005 Budget......::::: 22 RESOLUTION #119, SERIES OF 2004-2005 Mil] Levy ........................ ORDINANCE #39, SERIES OF 2004 -Bar/X Annexation ............................ 22 ORDINANCE #40, SERIES OF 2004 - AMCORD/AVLT Annexation...... 22 P214 ~_.,.~____..__ . Reeular Meetine Aspen City Council November 22, 2004 Council agreed to continue the list of design options to December 14`h ORDINANCE #35, SERIES OF 2004_ -Code Amendment Non- Conforming Structures. James Lindt, community development department, told Council this code amendment proposes a new TDR system to allow for transfer of allowable FAR in 500 square foot increments from properties that have excess FAR available to properties that have exceeded their allowable FAR but the TDRs would only be allowed for the expansion of ADUs or carriage houses. Lindt told Council staff does not support this code amendment. Staff feels this will take away from the demand side of the historic TDR system recently adopted by Council. Lindt noted this could be accomplished through the historic TDR system with some language changes, which language is presented in the staff memorandum. Council's options are to approve the ordinance as written with the creation ofnon-historic TDRs, or approve staff s recommended language using historic TDRs, or deny the code amendment. P&Z recommended denial of this code amendment. Gideon Kaufman, representing the applicant, told Council this code amendment would allow for a positive result for employee housing. Kaufman told Council this is about a caretaker unit approved and built. After the caretaker unit was built, there was a code amendment, which made the cazetaker unit non-conforming as to FAR and eliminated any flexibility. The caretakers of this particular unit are a couple with two children. Kaufman showed pictures of the freestanding caretaker unit. Kaufman told Council in order to accommodate two bedrooms in the lower level, window wells aze required. Installation of window wells changes the FAR. Kaufman said the TDR in this code amendment can only be used in an ADU; it cannot be used to expand a free market house. The staff's recommendation will not work as the existing historic TDR program is not allowed to expand ADUs. Historic TDRs are to be used to increase the size of free market units so the cost of historic TDRs will be higher. The proposed code amendment will help affordable housing in Aspen at no cost to the city. Kaufman told Council there were people here to testify in favor of this code amendment who had to leave before this public hearing. Mayor Klanderud opened the public hearing. 14 `' '' P 215 Resular Meeting Ashen Citv Council November 22, 2004 Dwayne Romero urged Council to support this TDR program. Romero said the sales price for historic TDRs would overwhelm this type of program; the historic TDRs are not economically viable for increasing the size of ADUs. Toni Kronberg said this is a creative way to keep families in town. Lynn, asked for the opportunity to make Aspen their home. Mayor Klanderud closed the public hearing. Councilman Semrau asked about selling the ADU to the occupants. Kaufinan said then the owner of the property would lose control of their caretaker unit. Kaufman told Council this code amendment will apply to mandatory occupancy ADUs only. Mayor Klanderud said the free market house with the ADU got the full benefit of the code in place at the time. Mayor Klanderud said she feels the historic TDR would solve the problem. Kaufman said it is an economic issue. Mayor Klanderud stated she supports the goal the applicant is trying to achieve. Kaufman reiterated this TDR program is only going to ADUs, not free market houses. Councilwoman Richards the goal of making the basement livable and keeping a family in town is laudable. This is one of the only mandatory ADUs where the owner has not tried to get rid of that condition. Councilwoman Richards said she feels the free market house sizes in Aspen are too large and she would favor ways to use up FAR for free market structures. Councilwoman Richards said she has no problem with this code amendment as long as it is to the benefit of families staying in town. Lindt noted if this is mandatory occupancy only, it would apply to 2 units in the city. Councilman Torre asked if there will be value added to this property by converting a two bedroom ADU to a three bedroom house. Kaufman said this mandatory ADU is right next to the main house and the benefit is having employees close and allowing that family to grow. This would allow community housing. Councilman Tone said the owners of the property will see an increase in the value of their structures. Mayor Klanderud said she supports the goal in this code amendment; however, she is concerned that this is an exception for 2 or 3 properties. Also this code amendment could have broad implications unknown at this time. Mayor Klanderud stated she could support staff's recommendation incorporating the historic TDRs. This would dilute the benefit of historic properties. 15 P216 ~--• -___.__~_....... Reeular Meetine Aspen Ciri Council November 22, 2004 Councilwoman Richards moved to adopt Ordinance #35, Series of 2004, amending it allow mandatory occupancy only ADUs to take advantage of either a historic TDR or a transfer of FAR from a free market lot; seconded by Councilman Paulson. Councilwoman Richards said this is a very limited in scope and a subset type of growth in the city's code. This may make more ADUs used and livable in the future. Councilwoman Richards noted the city eliminated mandatory occupancy of ADUs in the code because no one was building these units. Developers prefen ed payment-in-lieu. Councilwoman Richards stated it is worth rewarding someone who is not asking to get out from their mandatory occupancy ADU. Councilwoman Richards amended her motion to include to the maximum allowable FAR for an ADU or a maximum of 500 fee for a TDR; seconded by Councilman Paulson. Roll call vote; Councilmembers Torre, yes; Paulson, yes; Richards, yes; Semrau, no; Mayor Klanderud, no. Motion carried. ORDINANCE #36. SERIES OF 2004 -Chart House GMQS Allocation James Lindt, community development department, told Council this ordinance grants a growth management allocation to the Chart. House for 11 tourist accommodations.. The applicants originally took the project to P&Z for growth management scoring before conceptual PUD. P&Z did not give it a passing score because it did not have conceptual PUD approval. After that review, P&Z rescored the application and granted a passing score. Council may accept the score, amend the score or remand it back to P&Z. Lindt noted P&Z acted appropriately and scored this under the land use code. Staff reports there are enough tourist accommodation available. Staff recommends allocating 11 growth management quota contingent upon receiving final PUD approval. Stan Clauson, representing the applicant, reminded Council they granted conceptual approval October 23'x. When P&Z reviewed this, they gave above threshold scores in all categories. Clauson stated this project will go back to P&Z and to Council for final review. 16 __._.._... ~ P217 Regular Meetine Aspen Citv Council January 10, 2005 ASPEN PUBLIC FACILITIES MEETING ....................................................................... 2 COUNCIL MEETING ............................. .............................................................. 2 ............. OUTSTANDING EMPLOYEE BONUS AWARD ........................................................... 2 GLS PRESENTATION ....................................................................................................... 2 CITIZEN PARTICIPATION .............................................................................................. 2 COUNCILMEMBER COMMENTS ............:.....................................:............................... 3 CONSENT CALENDAR ......:..........................................:.................................................4 • Resolution #1, 2005 -Posting of Public Notices ................................................... 4 • Board Appointments ...............................................................................................4 o Wheeler Opera House Jim.Berdahl -Music Representative ................................. 4 o CCLC Terry Butler ................................................................................................4 Shae Singer ..................................................................................................................... 4 Don Sheeley .................................................................................................................... 4 Stan Ha en ................................................................................ 4 g ~ .................................. o P&Z Brian Speck, alternate ...................................................................................4 o HPC Michae] Hoffman ..:....................................................................................... 4 o LLA Jeff Wertz .............:...... ................................... 4 • Minutes -November 30, December 13, 2004 ........................................................ 4 SKI COMPANY SPECIAL EVENT SIGN VARIANCE REQUEST ............................... 5 FIItST READING OF ORDINANCES ..............:.......................................:....................... 5 Ordinance #1, 2005 -Little Ajax PUD .................................................................. 5 Ordinance #2, 2005 -Code Amendment -Seasonal Outdoor Food Vending....... 5' • Ordinance #3, 2005 - 1201 Riverside Drive Rezoning .......................................... 5 Ordinance #4, 2005 - 701 West Main Street Historic Lot Split ............................. 5 • Ordinance #5, 2005 -Code Amendment -Commercial Design/Pedestrian Amenities ............................................................................:........................................... 5 ORDINANCE #49, SERIES OF 2004 - Highland V illas Annexation .............................. 6 ORDINANCE #37, SERIES OF 2004 -Aspen Consolidated Sanitation District Master Plan/SPA ................... .................................................. 7 ........................................................ ORDINANCE #39, SERIES OF 2004 - Bar/X Annexation .............................................. 8 ORDINANCE #40, SERIES OF 2004 - AMCORD/AVLT Annexation ........................... 8 CLARIFICATION ON ADOPTION OF ORDINANCE #35, 2004 -Code Amendment TDRs for ADUs .................................................................................................................. 9 X GAMES WINTER CONCERTS NOISE VAR.LANCE .................................................. 9 ---,..~ Regular Meeting Asaen City Council January 10.2045 CLARIFICATION ON ADOPTION OF ORDINANCE #35.2004 -Code Amendment TDRs foi ADUs Chris Bendon, community development duector, reminded Council there was some confusion with the intent of Council and the minutes. Bendon said he met with staff and listened to the tape of the Council meeting. The intent of Council was that 500' square feet could be transferred to the property that has anon-conforming ADU. The change Council made at the meeting November 22 was to allow [hat square footage to come firm any property if the ADU is mandatory occupancy. Bendon said this 500 squaze feet can be 2 historic TDRS or 500 square feet from anon-historic property. Bendon said the amendment made at the November 22nd meeting is an improvement to the ordinance. There aze only 3 ADUs restricted to mandatory occupancy. Bendon noted Ordinance #35 has been updated to included the amendments made in November. Councilman Semrau asked what mechanism will be used to freeze the squaze footage on the property finm which the square footage is being transferred. Bendon said there will be a deed restriction on the sending property. Bendon said they will have to keep files of property that have sent squaze feet. Council agreed with the amended Ordinance #35, Series of 2004. X GAMES WINTER CONCERTS NOISE VARIANCE John Rigney, Aspen Skiing Company, told Council this request is for atwo-day event in conjunction with the X games and they thought Wagner Pazkwould be a fun and new venue. David Laughren, Avalanche Productions, told Council he met with the Crystal Palace and they have reached an agreement that their show will start eazlier and the X games concert will start slightly later. Laughren said these are free concerts for the participants; they are not free to put on In order to put on these types of events, there are sponsors and the concert venue will have a sponsor tent. This tent is not in front of the stage; there are no roped off azeas and the tent will not block any views. The sponsor tent is to the west side of the park. Tom Rubel, pazks department, noted there is concern about winter events in Wagner park that are not floored. Most of the events that have been approved for this winter will be floored, which is expensive. Rubel said there is a possibility that Wagner Park would have to be resodded as a result of the wmpaction if there is a wet, heavy snow and a lot of people in the pazk. Laughren said they are working with the pazks department to alleviate these issues. There will be no wheeled vehicles in the pazk; they will use a snowcat to bring in all equipment. They plan on grooming the pazk before the event, which should set up and provide a hazd snow surface. Councilwoman Richards said it is appropriate that staffbring these issues to Council to make decisions. Councilwoman Richards asked the cost to resod the park. Rubel said it wuld be up to $60,000. Councilwoman Richards said she would like to support this to find out how the pazk will stand up. Councilwoman Richards said she does not want to 9 'fir MEMORANDUM EXHIBIT D TO: FROM: •THRU: MEETING DATE: RE: Aspen Planning and Zoning Commission Jason Lasser, Special Projects Planner Jennifer Phelan, Community Development Deputy Director February 19, 2008 ~ P219 Code Amendments to Section 26.312.030 (C) -Nonconforming Structures -Resolution No. ~ Series 2008 -Public Hearing SUMMARY: Alice Davis, on behalf of the Lauder family, has submitted a number of text amendments with regazd to the nonconfomuties chapter of the Land Use Code as it relates to a code amendment submitted on behalf of the Lauders in 2004 (Ord. No. 35). The City sponsorship allows the Amendment to be processed outside of the biannual dates typically required. Staff has worked with the applicant to clarify the language of the original Ordinance. LAND USE REQUESTS AND REVIEW PROCEDURES: The City is requesting the following from the Planning and Zoning Commission: Determination if a lication to amend code text meets Standazds of Review pursuant to Land Use Code Chapter 26.310.040 Standazds of Review. A noticed. public hearing on a text amendment is held before the Planning and Zoning Commission so that a recommendation can be provided by the Commission to the City Council. Final decision is by the City Council. APPLICANT: Alice Davis, Davis Hom Inc. and Gideon Kaufrnan, Kau&nan Peterson Attorneys, representing Leonazd Lauder, property owner and Chris and Lynn Seeman, ADU occupants. PREVIOUS ACTION: The Planning and Zoning Commission reviewed an amendment to the non-confomuties chapter of the Land Use Code in 2004 and recommended denial at a public hearing on October 5, 2004. The City Council approved Ordinance #35, Series of 2004, on November 22, 2004, allowing for amendments to the Non-confomvties chapter of the Land Use Code. The amendment allowed a property that was legally establiched and non-conforming with regard to floor area (over maximum allowable0 to add up to 500 squaze feet of floor area to an ADU. .-" P220 .-., ~../ BACKGROUND' The Lauder residence and ADU were built in compliance with the City's Floor Area code, which has since been amended. The former code granted two floor azea bonuses for Accessory Dwelling Units. Fifty percent of an ADU's floor azea was exempt if the ADU structure was _ detached from the primary residence and another 50% was exempt if the ADU was deed restricted to mandatory occupancy. Together, a 100% exemption was available for an ADU that was both detached and mandatory occupancy. The Lauder ADU qualified for this 100 exemption and the primary house was developed to the maximum size considering the bonus. During the period of this mandatory occupancy floor azea bonus, three ADU's were developed with a mandatory occupancy restriction. The City experienced significant difficulty in administering the mandatory occupancy and, in 2001, decided to remove this option from the code altogether. The ADU code was amended to require ADUs be detached to gain a growth management exemption for the primary residence and the floor azea exemption was retooled to provide a 100% exemption only if the ADU was condominiumized and sold to a local working resident through the Housing Authority's Guidelines. The program allows the property owner to choose the first purchaser, as long as that person qualifies through the Housing Guidelines. At the same time as eliminating the mandatory occupancy bonus, the City amended the code to provide a process of removing the mandatory occupancy restriction from an existing ADU through a landowner provision of either anoff--site deed restricted unit or a cash-in-lieu payment equal to the market value of the bonus azea. This was done in response to a landowner with a mandatory occupancy ADU. The City's code amendment in 2001 made the Lauder property a "legally created non- conformity." Specifically, the Lauder ADU no longer qualified for a floor area exemption and the property contained too much floor area. The City's non-conforming regulations allow legally created non-conformities to exist in perpetuity, but prohibit expansions of the non-conformity. (i.e. a house that is over it's floor azea cannot be added on to.) . The Lauder ADU is a one-floor unit developed over a storage basement that was also exempt from the calculation of floor area. The storage azea was purposely developed asnon-inhabitable space (no window wells) to maintain its being exempt from floor area. Basement levels count towazds floor azea proportionately to the extent they aze exposed. Window wells increase the exposure and require more of the basement level to count towazds the property's total Floor Area allowance. Prior to the initial Code Amendment request in 2004, a building pemut to install window wells in the ADU structure was submitted to the Building Department and denied due to a lack of floor azea. The improvements were built without a permit and the construction was "red tagged" by the Building Department. The improvements were then removed and the property returned to its previous condition. An application to amend the Non-conformities chapter of the Land Use Code was submitted in 2004 requesting modifications to the nonconforming structures section with regazd to extensions and ADUs and Carriage Houses. Public hearings followed at both Planning and Zoning and City Council. As a result, Ordinance No. 35 (Series of 2004) was passed. Page 2 of 3 ~ P221 In March 2007, the City was approache possibility of acting upon the approved applicant representatives have worked to mandatory occupancy unit (Lauder ADU). d by Alice Davis and Gideon Kaufman to discuss the language of Ord. #35, Series of 2004. Staff and the clarify the language which is applicable to only one STAFF COMMENTS: Staff has enclosed a Resolution that demonstrates code text amendments using stril"°s in red for removed text and underlined blue shadine to denote new text. Each change, or set of related changes, is accompanied by a numbered red box in the left column. To understand the vazious code text amendments, it may be easiest to look through the Resolution identified as Exhibit B to see the exact code language changes -- while consulting the explanatory text below, which offers a rationale for each code text amendment, using the red boxes. SUMMARY OF THE PROPOSED RESOLUTION: The general allowances for non-conforming structures is now rolled in Section C, ^ the exceptions to "C" aze now formatted as a subsection of ~.C„ Clazifies the current text by following a more logical format -that the increase in ^ floor azea is only available for ADUs with mandatory occupancy and then breaks the procedure and review standazds into subsections. To increase floor azea on a property, the application is reviewed as a special review application (requiring notice and hearing before the Planning and Zoning Commission). Additionally, the application must meet the design review standazds for an ADU or carriage house and meet additional review standazds in the non- confomvng section. Most important is mitigating for the additional floor azea via extinguishment of a TDR or un-built floor area from another property. Combines standards 1 and 2, eliminates standard 5 (no variance from setbacks can be required), clarifies the standazd for TDR extinguishment, and the final standazd language has been modified to omit a squaze footage number from transfer from non-historic properties. RECOMMENDATION: Staff recommends approval of this application for various code text amendments to Section 26.312.030 (C), Extensions RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMTTIVE): "I move to approve Resolution No. ~ Series of 2008, finding that the application for code text amendments meets the applicable Standazds of Review." ATTACHMENTS: EXHIBIT A -Review Criteria and Staff findings ExI-iisiT C -Color coded Resolution with proposed text amendments EXHIBIT B - 2004 Minutes - P+Z (Sept. 7, Oct 5), City Council (Nov. 22) Page 3 of 3 P222 `.. r.~ E7~TT A Chapter 26.310 AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP Sec. 26.310.040. Standards of review. In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Findings: The proposed code amendments clarify the language, procedure and standards of the nonconforming structures section of the Land Use Code. The proposed changes eliminate confusing language disallowing variances for properties with bonus floor area, which created an inconsistency with the Variance Chapter of the Land Use Code. Staff finds this criterion to be met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. StaffFinding_s: Allowing for additional area in an Accessory Dwelling Unit to accommodate a family currently residing in the ADU is consistent with the AACP's goal to provide affordable housing. Stafff:nds this criterion to be met. C. Whether the proposed amendment is compatible with surrounding wne districts and land uses, considering existing land use and neighborhood characteristics. Staff Findings: There were originally only two approved ADU's/Carriage Houses approved as a mandatory occupancy unit in the short period of time the legislation was in effect. One of these two ADU's has had it's restriction removed and the Seeman's live in the one mandatory occupancy unit remaining. The applicability of the legislation is quite narrow, therefore Stafffinds this criterion to be met. D. The effect of the proposed amendment on traffic generation and road safety. StaffFindings: The amendment will only affect one unit and family. Staff does not find this criterion to be applicable. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools and emergency medical facilities. StaffFindin -, `'-'~ P223 The amendment will only affect one unit and family. Staff does not find this criterion to be applicable. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Staff Findings.• The amendment will only affect one unit and family. Staff does not find this criterion to be applicable. G. Whether the proposed amendment is consistent and compatible with the community character in the City. Staff Findings: The expansion of an existing ADU is consistent with the community character. Mass and scale can be reviewed through the development application process. Staff finds this criterion to be met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Findings: The expansion of the caretaker family (by one) has affected the subject parcel, requiring additional sguare footage for the changed condition. Staff finds this criterion to be met. I. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. StaffFindin~sr Because of the narrow scope of applicability for this amendment, and that the intent is to allow an existing family to remain in Aspen, Staff fords tha~.ihe proposed amendment is in harmony with the purpose and intent of the Land Use Code. Stajfftnds this criterion to be met. 2 ~ ~~ ~' `~ ~, P225 E~~IT B RESOLUTION No. _ (Series of 2008) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, ASPEN,- COLORADO, DETERNIINING THAT AMENDMENTS TO THE FOLLOWING CHAPTER AND SECTION OF THE CITY OF ASPEN LAND USE CODE OF THE CITY OF ASPEN MUNICIPAL CODE: 26.312.030 - NONCONFORMING STRUCTURES -MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous amendments to Section 26.312.030 submitted by the Lauders were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clarify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor azea on properties with a mandatory occupancy accessory dwelling unit and which aze legally established nonconformitieswlth respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. .Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public hearing on February 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standazds pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen Planning and Zoning Commission finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. WHEREAS, the amendments to the Land Use Code aze delineated as follows: Text being removed is strikethrough and red. T ` ' " "°'"""°'' '""v° "'"° '''`" Text being added is underlined and blue. Text beine added looks like this. Text which is not highlighted is not affected; and, ,.~. P226 ~ ~° r'+ NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030.Nonconforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. ` B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. '-r-w;ror~ A nonconforming structure shall not be extended by an enlazgement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not, change or that decreases the nonconformity. 1. Historic shvctures. The exly first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmazk Sites and Structures. Such structures may be extended into front yazd, side yazd and reaz yard setbacks, may be extended into the minimum distance between buildings on, a lot and may be enlazged, provided, however, such enlazgement does not exceed the allowable floor azea of the existing structure by more than five hundred (500) square feet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.415. 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The ertly second etl~ exception to this requirement shall be for a property with a detached Accessory Dwelling Unit (~ or Carnage House ("ADU") having. a mandatory occuoancv reouirement. Such a detached ADU ^- °^ '•-••-- ••'-••-'••-° may be enlarged or expanded by up to five hundred (500) squaze feet of floor area, provided that this bonus floor azea shall go entirely to the detached ADU eF-ea~iage-hexse and also provided that the ADU efe~iage-Meuse does not exceed the maximum size allowed for an ADU or carnage house. The enlazgement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. , tee `"~ ,~ P227 :"y, T F 1,1 Tl 1 ..«w D:..4 " «t •.. !`t."«t.... rc ..~.. ... .., _.__~_o___- Y T ... ~ L•t• "1, ., TS:"t««:.. T F 1..I Tl 1 - D' k ATCICTT .7 .1 ..,i..s., ..['~ «,i n.. t. e A IITT 1. a '~^~^^` 5 ~' b" • C C J r a) Procedure The procedure for increasing the maximum floor area of a property for the puroose of increasing the size of an ADU requires the submtsston of a development application The development apphcahon shall be processed under Chapter 26 430 Special Review. b) Review Standards An appucatron ror mcreasme me ataxtmwu rtu~r ~~a ~. a property for the puroose of increasing the size of an ADU shall meet the pn aa• • «,." "_„":"t ,a,=:~ ~r~ standazds m Sectron 26.520.050 Desi Standards unless otherwise approved pursuant to Section 26 520.080, Snecia] Review, n F-' Tnn "'"° `.. "....".."°a ~'~ as well as the following additional review sFiteae standards: (1)Newly established floor area may increase the ADU up to a cumulative maximum of 500 so fr of floor area and is required to be mitieated by erther of the followin¢ two options. (a)Extinguishment of Historic Transferable Development Rieht Certificates ("certificate" or "certificates") A property owner may increase the ADU by extinwishment of a maximum of two certificates with a transfer ratio of 250 sa. ft of floor area per each certificate Refer to Chapter 26 535 for the procedures for extinquishin~ certificates. the size of an ADU by extineuishment of a maximum of 500 square feet of available unbuilt floor area from one property to the ADU.. (}j(2) The additional floor area is a conversion of existing squaze footage which was not previously counted in floor azea. (Example: storage space made habitable.) F2~ or the additional floor azea creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. E3) (~ The additional floor azea creates a unit which is more suitable for cazetaker families. f4j ~ The increased impacts from the larger size aze outweighed by the benefits of having a larger, more desirable ADU. ,^~ --~ P 2,2 8 _ :..,~ ~ .. ~ ((6) (~ The azea and bulk of the ADU structure, after the addition of the bonus floor azea, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor azea through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. /^/\ i• T C ...1-le T. .. a,I,....«e..t 4:..kt..-........-...,...,.......~.. ...:A. •Le A...... c Q°°°10~~ (Sj (~ For the transfer of allowable floor area ' /~^^~-~--feet from a nonhistorically designated properly to an ADU deed- restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor azea from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standazds and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore. 1. Nonpurposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regazds to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* *A duplex or two single-family residences on a substandazd parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Density on a substandazd parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single- family floor area requirements. (Ord. No. 1-2002, § 6 [part]; Ord. No. 9-2002, § 5; Ord. No. 35-2004, § 1) ' Section 2• A public hearing on the Resolution shall be held on the 19th day of February, 2008, at 4:30 p.m. in the Sister Cities Room, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. ~'~' `'~ P229 '~ Section 3: This Resolution shall not effect/affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this day of , 2008. APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: JimTrue, Assistant City Attorney ATTEST: Dylan Johns, Chair Jackie Lothian, Deputy City Clerk C ~"''~ P 2 31 Ashen Plannine & Zonins Commission Meeting Minutes -February 19, 2008 .................................................................... ES 2 .............................................. MINUT ........................................................... . 2 . COMNIENTS ................................................ DISCLOSURE OF CONFLICTS OF INTEREST .................................................... 2 CODE AMENDMENT PUBLIC NOTICE ............................................................... 2 E AMENDMENT REGARDING NON-CONFORMITIES ............................ 5 COD ASPEN CLUB CONCEPTUAL SPECIFICALLY PLANNED AREA ................... 6 1 P232 Aspen Plannine & Zonin¢ Commission Meeting Minutes -February 19, 2008 LJ Erspamer, vice-chair, opened the regular meeting of the Aspen Planning & Zoning Commission Meeting in Sister Cities meeting room at 4:30 pm. Commissioners present were Michael Wampler, Cliff Weiss, Stan Gibbs, Dina Bloom, Brian Speck and LJ Erspamer. Jim DeFrancia and Dylan Johns were excused. Staff in attendance: Jim True, Special Counsel; Chris Bendon, Jason Lasser, Jessica Garrow, Community Development; Jackie Lothian, Deputy City Clerk. MINUTES MOTION: Dina Bloom moved to approve the minutes from January 29"` and February 5`h; seconded by Michael Wampler. All in favor, approved. COMMENTS Stan Gibbs requested that staff memos be embedded in the documents for one point of reference to follow the resolutions. DISCLOSURE OF CONFLICTS OF INTEREST LJ Erspamer wanted to disclose that he was the main organizer for the 3 committees for the ARC but at the time there were not any weight rooms or aerobic rooms; so this was a disclosure. CONTINUED PUBLIC HEARING: CODE AMENDMENT PUBLIC NOTICE LJ Erspamer opened the continued public hearing. Jim True stated this was a public hearing and it was duly noticed; published once, all that was required. True said the two questions that remained after last week's discussion were 1. the content of the notice and if there should be a mailing address and additional information provided by an applicant; there would be a statement that a hearing maybe continued from time to time and 2. whether the posted notice shall remain on the property throughout the process or some other aspect of that, shall the dates be changed rather than the from time to time language. True reiterated the two issues 1. is the content of the notice as faz as the name and additional information of the applicant and 2. whether posted notices shall remain up after the initial hearing if there is a continuance and how it should remain up. True said this was totally discretionary at P&Z and will go to Council with either a recommendation of approval or denial. Michael Wampler said he read the minutes and memo and he agreed that the notice should stay up through the hearing and if the hearing is continued the date should be posted on the notice because things were changing. True said that there would 2 i^ ..-„ ~' `"~ P233 be a change to the code that says there need not be any new notice or second notice and there would have to be an additional affidavit before every continued hearing that was re-posted; again there wasn't that significant a problem and it was a legitimate request on this commission's part. Stan Gibbs asked what was the point of "the best of the applicant's ability". True replied that was a comment that Jennifer made at the meeting saying that we would not require a new affidavit saying it had been up that would be their best efforts to keep it up throughout the process; she did not want notices to disappear and applicants not necessarily know that the notice was gone and have somebody come in a say the process is defective because it was not up. Gibbs said that they understand that there is some room but it was like saying you have to stop at a stop sign to the best of your ability; laws were not written that way. True stated that you were just trying not to create a situation where somebody says the process was defective or you make a requirement then there needs to be affidavits. Dina Bloom said that Jennifer made it clear that in other communities there have been problems of signs that did not stay throughout and then the process would stop and she did not want that to happen here so "the best of the applicant's ability" makes sense. LJ Erspamer asked the consequences if the sign does fall down and the applicant does an affidavit that it was up. True said there was a risk that somebody says that you have to re-notice and start over or get a continued hearing. Chris Bendon said that they prefer "to the best of the applicant's ability" because often times Council will continue a public hearing to the next night. Bendon noted that in the winter, especially this winter, signs get piled up with snow piles. Gibbs said that "the best of the applicant's ability" made sense after the discussions; more affidavits make it difficult. Gibbs stated the posting should be continue throughout the process with "continuing from time to time" and the best of the applicant's ability" to keep it visible to the public was good enough. Erspamer asked if an affidavit was needed to change or add the dates of the meetings. True responded that the situation of continuation to the next day or continuation for a week had to be addressed. Erspamer asked if this commission put something together where they recommend some ideas or some thoughts on this issue to think about and address. True said that Council will make this determination; this was a recommendation, it was a resolution recommending something to Council. 3 P234 Aspen Planning & Zonine Commission Meeting Minutes - February 19.2008 Bendon noted there was no place in the code that said after so many continuances the public hearing had to be re-noticed. Gibbs asked if P&Z should recommend something like that to Council. Bendon replied that would be easier to administer then deciding on an arbitrary basis when you need to re-notice. True said an applicant has the ability to request a continuance and after that it was more discretionary with Council; it is just discretionary to re-notice. True said that it can be written that if the hearing is continued more than "x" period of time it will be re-noticed. Erspamer asked if on the other part of the noticing it was name, address or email. True stated that he re-wrote based on what the group was most interested in was name and either a mailing address of the applicant or a phone number or email address of applicant or the representative. Erspamer said that this was a public notice and people should have the right to know and comment to a contact on the project and he thought email should not be the only contact; there should be a phone number of a representative somewhere. Cliff Weiss requested the mailing address be required and the other two were optional (phone number or email). Michael Wampler said that in 5 years people would not be mailing anything; this was a band aid; email was the future not snail mail. Brain Speck noted that sometimes email goes through Spam filtering and you don't get it. Erspamer asked either/or; and/or; or just require a113. Gibbs agreed with what Dylan had to say that some people just don't want their phone number out there; it was a reasonable compromise to the have mailing address as a requirement but the phone or email should be the applicant's choice, which one they want to provide. Gibbs said that snail mail will actually only go away when you can actually verify the receipt of an email; until certified mail can be replaced reliably. True reiterated that the mailing address was required and the mailing address and either the phone number or email for the applicant or the applicant's representative. PUBLIC COMMENTS: 1. Toni Kronberg thanked John Worcester and Jim True for taking on this issue; the content was important because as a member of the public we don't care about the mailing address we care about the address of the development application. Kronberg said that the person to contact was in Community Development and included on the notice; email was not legally recognized by the state statute as a form of communication because there was no way of knowing if someone has received that notice that was the purpose for mailing certified. Kronberg said the Council notice and said that the public notice has to stay through the public hearing; she suggested a 7 day time frame be changed for continued hearings. Kronberg said that she has never seen a notice intentionally taken down. 4 `'~ P235 Aspen Planning & Zonine Commission MeetinE Minutes -February 19.2008 2. Gideon Kaufinan said that the number one way somebody opposes a project is on notice because that was the most strictly construed way to oppose a project; he has had signs disappear when people want to fmd a way to challenge a project. Kaufinan said that if you don't have language "to the best of someone's ability" you are opening them up to have a situation that someone takes the sign. Kaufinan said neighbors don't like the signs because they don't think they are very attractive also when you constantly continue a hearing that means you have to change the sign every 2 weeks, every month, that becomes a real burden and it is not that simple. Kaufrnan said the bottom line was that you are going to follow up on it. MOTION: Stan Gibbs moved to approve Resolution #007-OS as amended in the discussion to include the mailing address and either the phone number or email of the applicant or its representative and the applicant shall maintain this notice on the property throughout the hearing and continuances to the best of the applicant's ability; seconded by Michael Wampler. Roll call: Bloom, yes; Speck, yes; Weiss, yes; Wampler, yes; Gibbs, yes; Erspamer, yes. All in favor approved 6-0. The commission requested Council consider placing a date deadline for continued meetings and re-noticing. PUBLIC HEARING: CODE AMENDMENT REGARDING NON-CONFORMITIES LJ Erspamer opened the public hearing for non-conformities. Jason Lasser said that Alice Davis represented Gary and Laura Lauder. Lasser provided the history of these mandatory occupancy units which was before the Telluride decision that tallced about privately owned rental housing that can't be required to be deed- restricted because it was considered rent control and that was a decision that made the City of Aspen change the way that they do things. APCHA now controls that an ADU or Carriage House has to be deed-restricted for sale and run through APCHA, which clears up the rental issue decided in the Telluride case. Lasser stated that what they were talking about today were mandatory occupancy units to clear up the language in the code. Lasser read the definition of non- conforming structure: a structure which was originally constructed in conformity with the zoning and building codes or ordinances in effect at the time of this development which no longer conforms to dimensional or other requirements by the title to the zone in which it is located. Lasser said because of code changes the property could have more FAR than it was allowed with the new code so technically it's non-conforming. Lasser said the code amendment in 2004 was that the Lauder's wanted to expand and propose changes to the code and staff did not 5 P236 Q recommend approval and P&Z voted no for those code changes but Council approved that through Ordinance 35 and it was codified and in the code now. Staff was going to eliminate a general section making historic structures the first exception and mandatory occupancy for accessory dwelling units and carriage houses the second extension in the non-conforming structures and extensions section of the code; that cleans up the language so it is easier to read going through "A" (procedure) and "B" (review standards) and "B1" (maximum cumulative 500 square foot of floor azea from historic transferable development rights or extinguishing unused floor azea from other properties). Staff recommended approval. Gideon Kaufrnan introduced Alice Davis from Davis Horn Planning. Kaufrnan said they were just cleaning up the language with no substantive issues or changes. Michael Wampler. asked for clazification on the 500 feet coming from the house, Kaufinan replied there were 2 options (1) purchase a historic TDR or (2) go to another free-market property in the City of Aspen and take the square footage off of that property and put it into a mandatory occupied ADU. No public comments. MOTION: Michael Wampler moved to approve Resolution #10-OS finding that the application for the code text amendments meets the applicable standards of review; seconded by Stan Gibbs. Roll call vote: Speck, yes; Bloom, yes; Wampler, yes; Gibbs, yes; Weiss, yes; Erspamer, yes. All in favor APPROVED 6-0. Discussion: Stan Gibbs asked what the difference was with an ADU and Carriage House. Kaufinan replied that they are now referenced the same way (page 35 defines it the same way). Lasser stated it was basically a squaze footage issue; the carriage house was 800 to 1200 squaze foot and ADU was 300 to 800 squaze foot. CONTIN[JED PUBLIC HEARING: ASPEN CLUB CONCEPTUAL SPECIFICALLY PLANNED AREA LJ Erspamer opened the continued public hearing on the Aspen Club. Chris Bendon recused himself from the public hearing. LJ Erspamer stated that he organized the 3 groups that built the ARC; it didn't have the weight room or the aerobics room. Jessica Garrow mentioned 3 letters from neighbors in the packet and another letter from Peter C Meining added. Garrow noted there was a site visit at noon. Garrow 6 ._ __,,.. P237 said that on March 4a' the issues of transportation, parking, factional unit components, the lock off scenarios, affordable housing as well as more depth in the architecture; tonight would be a conversation of the area and proposed site plan. Garrow provided a brief history beginning with appendix b exhibit 1, an overview of the original subdivision approved in 1976 with 161ots; lot 15 was where the club currently sits; lot 14A was designated a parking facility, across the river from lot 15, the club was access from that parking azea via a walkway that goes over the river; lot 14 was intended to be a club facility. The club was built in 1977 and throughout the 70s and 80s there were some changes to the PUD that allowed an increase to the size of the club and also changed lot 14 into a single family lot; in the 1980s and 90s the owner, Dick Buetera, amended the PUD a number of times again and split lot 14 into 2 single family homes. Also at this time parking was added to lot 15 and the primary access to the club was moved to Ute Avenue instead of from Highway 82. Garrow said that lot 15 was zoned rural residential with a PUD overlay; lot 16 (the Benedict Building) was zoned rural residential with a PUD overlay and SPA overlay to allow commercial uses on the property; the rest of the subdivision is zoned R-15 PUD and includes single family homes and multi-family homes (Aspen Club Townhomes no relation to the club). The club currently includes 35 parking spaces on lot 14A, 56 spaces on lot 15, 5 outdoor tennis courts (1 under the bubble for winter use), the Aspen Club and Spa and an outdoor deck. There is an Aspen Club trail that traverses the property near the river and the 100 yeaz flood plane is located immediately below the trail. Staff talked about benches; the upper bench contains the Aspen Club and the lower bench is essentially where the 4 tennis courts are located, which is proposed to be new fractional units. Garrow stated that the proposal retained the Aspen Club trail, it adds 12 affordable housing units, 19 timeshaze units (13 of these timeshaze units are stand alone townhouse units in 4 different structures and 6 are flats added on top of the existing building), a total of 42 parking spaces aze proposed to be added to the current parking (133 spaces total with 35 spaces remaining on lot 14A and 98 spaces would be on lot 15). Garrow stated the reviews before the Planning Commission were all conceptual. Conceptual PUD, which allows changes to the dimensional requirements to the existing PUD, variances in 2 setbacks for the proposed affordable housing units, front yard setback requirement is 30 feet and this request is to amend that setback to 7 1/2 feet and the east side yard the setback should be 20 feet and they are requesting to amend it to 3 feet. Conceptual Specially Planned Area (SPA) to permit the construction of affordable housing and timeshare units; an SPA enables a parcel to have different uses then are permitted in the underlying zoning. The third is Conceptual Timeshare review which is required when a timeshare 7 P238 ~ ..s Aspen Planning & Zoning Commission Meetine Minutes -February 19, 2008 development is proposed. Conceptual Commercial Design Review is required at conceptual and final level at anytime a commercial or lodge project is proposed; this has a lodge component so therefore a commercial design review is required. Staff determined that this project should go through the small lodges area review because this is in a residential area. Staff is supportive of this general concept of healthy living facility and was a different exciting use and would be a good amenity for the community. There were some concerns regazding the architecture, transportation and parking elements, which will be discussed at the next meeting in more detail. Cliff Weiss asked for the terms of the Butera agreement. Sunny Vann replied the agreement was in the appendix. Garrow explained some of the exhibits in the application; the 1980 approvals permit the use of the Ute Avenue entrance. Sunny Vann introduced Chris Wright and Richard DeCampo from Poss Architects. Chris Wright identified the context of the neighborhood with a handout of drawings that shaped the project; he said that the neighborhood was pretty eclectic. Erspamer asked the lot size of the adjacent parcels. Garrow responded that she would get them for the next meeting. Richard DeCampo utilized the boazd drawings and the handout of drawings to show the different parts of the 5 acre site with the existing building and the access from Ute Avenue. DeCampo utilized sheet 2 from the packet to show the property line and setbacks, some setbacks were determined by the stream margin review criteria and the 100 year flood plane which was below the trail. DeCampo said that the proposed buildings were setback and there was a sewer easement through the property. DeCampo noted there had to be emergency access and the biggest were the fire department trucks. DeCampo said there were just a couple of places that could be developed because of site constraints. Erspamer asked if the hammerhead tumazound was big enough for emergency vehicles. DeCampo replied that if you don't go too faz into the site that you were allowed to pull something in and back out to a turning radius.. Vann showed more pavement for the access. Erspamer asked about the setbacks. DeCampo replied that the front yard setback was 30 feet and they were asking for 7 1/2 feet.and a side yard was 20 feet and they were asking for 3 feet; if you look at the site for the surrounding area you aze quite faz back from the public areas. Stan Gibbs asked if they were cutting the comer of the building. DeCampo replied that was correct. 8 ~~ P239 Aspen Planning & Zoning Commission Meeting Minutes - February 19, 2008 Vann said the only setback variance requests were those 2 setback points for the affordable housing and could be done within the setbacks themselves but it would significantly reduce the amount of housing that could be placed on the site. Vann said that backing up to the Silver Lining Ranch had no adverse impacts. Cliff Weiss asked how many parking spaces were there for the affordable housing. Vann replied the affordable housing parking spaces were based on the code at 1 per unit and they are providing those 12 spaces in the sub-grade garage to discourage the use of the vehicles, which would be a place to store the vehicles; there were 5 spaces in front of the affordable housing units which will be signed for temporary drop off or a fimed period. Michael Wampler asked with the exception of those spaces if all the rest of the new parking would be underground. Erspamer asked about parking design. Vann replied the site design was why the parking was where it was. Vann reiterated what Jessica had said about the parking and added that Butera made a pitch that the parking was insufficient for the operation of a facility like that yet Council restricted and reduced the amount of parking as an attempt to limit vehicular traffic in the neighborhood. Vann said what was there today in parking spaces were 56 in the surface parking lot and 35 across the river; the new proposal the fractional ownership units require 1/z space for each unit, all of these units have lock-outs with a total of 38 keys so the code requires 19 spaces that will be located in the sub-grade garage. Vann said the surface lot would be reduced to 40 parking spaces and changing the way it is laid out to improve circulation; the sub-grade garage includes 22 spaces for the club. Vann stated there were a total of 133 spaces with 53 spaces in the garage. Erspamer asked for the location of the hydrants. Vann replied that they were in the application on the improvement survey. Chris Wright said that Michael Fox was trying to create a project that addresses spending time together as a family and extended family; creating spaces from a building program by which an extended family can vacation together and spend time and take advantage of the opportunities that the Aspen Club has to offer. Wright said that our society was changing with people living longer and finding the opportunities to travel together; that was a big component to create a building program that allows this kind of activity to take place. Wright said there were a lot of different activities that this property has to accommodate. Wright said that they were approaching this on sustainability on a lot of different levels; sustainability in terms of energy usage to upgrade the existing building; the use of ground source geothermal, solar voltaic and a mixture of things to get the most efficient system that they can. Wright said the other aspect of sustainability was the constnzction of these units, the units themselves being energy efficient, the type of materials, the 9 P240 ~ ~/ Aspen Plannine & Zonine Commission Meeting Minutes -February 19, 2008 quality of life, the quality of daylight and use of the site. Wright said there were constraints to this site and the next phase was to work with the topography of the site with the two benches on the site. Wright noted that they were sensitive to the area and applied for LEEDS development and they are in the pilot program because they are taking a site that is. developed and they are recycling the site. Weiss asked how many apartments (flats) there were. Vann replied there were 6; 4 on the upper level. Erspamer asked if the growth management was on a point system. Garrow replied this would potentially play into the point system when they get to the growth management application; they will need growth management allotments for the affordable housing units after conceptual; the earliest would be August or this time next year. Erspamer asked if LEEDS was a requirement. Garrow responded that it was a way to get points in the competition for growth management allotments. Garrow presented the "sketch up" model of the project; the immediate context was used; the model was generated from wire frames taken from the 2004 fly over for the GIS Department. The wire frames are accurate with respect to height and grade that used 2 foot contours. MOTION: C1~Weiss moved to continue the Aspen Club Conceptual SPA, PUD, Timeshare and Commercial Design Review to March 4`~; seconded by Brian Speck. All in favor APPROVED. Jackie Lothian, Deputy City Clerk 10 ... ,~..-- .. ExHt81~~ 1 111111 uIIIIIIIIIII~I.lllii~I-I~IN IIIIh~IIIlII~ 01©620© 01:401 SILVIP DFVIS PlTKIN COUNTY W R 21.08 D 0,00 Ordinance No. 35 (SERIES OF 2004) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE TEXT OF THE LAND USE CODE TO PERMIT ADDITIONAL DEVELOPMENT ON PROPERTIES CONTAINING AN ACCESSORY DWELLING UNIT AND WHICH ARE NON-CONFORMING WITH RESPECT TO FLOOR AREA -SECTION 26.312.030.0.3 OF THE CITY OF ASPEN LAND USE CODE -NON-CONFORMING STRUCTURES. WHEREAS, the City Council of the City of Aspen duected the applicant to submit an amendment to the Land Use Code, pursuant to sections 26.208; and, WHEREAS, the applicant is Gideon Kaufman, Kaufman Peterson Dishler Attorneys, representing Leonard Lauder, property owner; and, WHEREAS, the requested amendment is to Section 26.312.030.0.3 of the Land Use Code and would permit additional development on properties with an Accessory Dwelling Unit and which aze non-conforming with respect to floor azea; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewe~and recommended for approval, approval with conditions, or denial by the Planning D ector and then by the Planning and Zoning Commission at a public hearing. Final actions all be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Planning Director recommended denial of amendments to the Land Use Code as described herein; and, WHEREAS, the Planning and Zoning Commission opened the public hearing to consider the proposed amendments, as described herein, on September 7, 2004, and continued October 5, 2004, took and considered public- testimony and the recommendation of the Planning Director and recommended, by a three to two (3-2) vote, City Council not adopt the proposed amendments to the Land Use Code, as described herein. WHEREAS, the Aspen City Council has reviewed and considered the application according to the' applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Developmerlt Director, the Planning and Zoning Commission, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the application meeting or exceeding all applicable standards of the land use code of the City of Aspen Municipal Code and that the approval of the proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council fmds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. Ordinance No. 35, Series of 2004 Page 1 P242 ~~ II~~IIIII~NIIIIII~~~nI~~II~IIIIII~IIIIIIII 5©62ee© el aei 6[LVIR ORVIS PITKIN COUNTY CO R 21.00 D 0.00 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO as follows: Section 1• Section 26.312.030.0 of.the City of Aspen Land Use shall include a new subsection 3 to read as follows: 3. Accessory Dwelling Units and Carriage Houses. The only other exception to this requirement shall be for a property with a detached accessory dwelling unit (ADU) or Carnage House. Such a detached ADU of Carriage House structure may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided.that this bonus floor area shall go entirely to the detached ADU or Carriage House and also provided that the ADU or Carriage House does not exceed the maximum size allowed for an ADU or Carriage House. The enlazgement or expansion must comply with al] other requirements of this Title, and shall receive development review approval as required by 26.520, Accessory Dwelling Units, and Special Review approval pursuant to Section 26.430. The 500 squaze foot floor area expansion may be allowed if the unit complies with the review criteria and standazds of the Aspen Land Use Regulations Sections 26.520 including, but not limited to, a finding that the expansion shall be compatible with the character of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated.. Only the floor azea which will increase the ADU or Carriage House beyond the legally created non-conforming floor area .(the expansion floor azea) is required to be mitigated. if the impacts of the expanded use cannot be sufficiently mitigated otherwise, , an additional method for mitigating those impacts and other impacts considered in the land use review, is to extinguish Historic Transferable Development Rights, pursuant to Chapter 26.535, up to a maximum of 500 square feet. In addition to the ability to extinguish a Historic Transferable Development Right, as discussed above, an ADU deed-restricted as a Mandatory Occupancy unit, and only an ADU unit that is deed-restricted as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of 500 square feet from anon-historically designated property that has sufficient available floor area pursuant to the special review procedures detailed in this section. [n addition to the special review criteria in Section 26.520.080; flooi area from a TDR may be approved pursuant to the following additional review criteria: (1) The additional floor area is a conversion of existing square footage which was not previously counted in floor azea. (Example: storage space made habitable.) Ordinance No. 35, Series of 2004 Page 2 -. J P243 IIIIIIIUIII~IIWINiN~11~NII~INII~1111N11 5©62eO el aei 57LVIA DPVIS P:TKIN COUNTY CO R 23.00 D 0.00 (2) The additional floor azea creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. (3) The additional floor azea creates a unit which is more suitable for cazetaker families. (4) The increased impacts from the larger size aze outweighed by the benefits of having a lazger, more desirable ADU. (5} No variance from setbacks can be required to accommodate the bonus floor area approved through this section of the Code. (6) The azea and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (7} Historic Transferable Development Rights, commensurate with the floor area expansion, -are extinguished pursuant to Chapter 26.535 -Historic Transferable Development Rights. (8) For the transfer of allowable squaze footage up to 500 square feet from a non- historically designated property to an ADU deed-restricted as a Mandatory Occupancy unit, the Applicant shall record an instrument in a form acceptable to the City Attorney removing floor azea from the sending property to the Mandatory Occupancy ADU. Section 2: All material representations and commitments made by the developer pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Community Development Department, or the Aspen City Council, are hereby incorporated in such,plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by other specific conditions. Section 3: This Ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4• If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity ofthe remaining portions thereof. Ordinance No. 35, Series of 2004 Page 3 P244 ~ _ ..i IIIIIIII~ININII~VIIIHIIIII~IIIIIIMIIII~II 5fl62e~ el.,e~ 57LYIR DRVIS PITK[N COUNTY CO R 21.00 0 0.00 Section 5: A public hearing on the Ordinance was held on the 22"d day of November, 2004, at 5:00 in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (l5) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 6: This ordinance shall become effective thirty (30) days following final adoption. INTRODUCED, READ AND ORDERED PUBLIS pr 'ded bylaw, llyEha~City Council of the City of Aspen on the a5 day `` ``;,1 Of A S~f .y ,` ~,( '~$t I h, City Clerk v~ eleo Kahn anderud, Mayor 'G YM1n' FINALLY, adopted, passed and approved this,~day of ~t CJ~.l.~ o a o ester, City Attorney Helen Kahn Klan erud, Mayor Ordinance No. 35, Series of 2004 Page 4 MEMORANDUM ~l TO: Mayor Ireland and Aspen City Council FROM: Jason Lasser, Special Projects Planner ~~ THRU: Chris Bendon, Community Development Directod 'IA.~ MEMO DATE: March 17, 2008 l.J" ~ MEETING DATE: March 24, 2008 Z RF,: Code Amendments to Section 26.312.030 (C) -Nonconforming Structures -Ordinance No.~, Series 2008 - lg` Readine SUMMARY: Alice Davis, on behalf of the Lauder family, has submitted a number of text amendments with regard to the nonconformities chapter of the Land Use Code as it relates to a code amendment submitted on behalf of the Lauders in 2004 (Ord. No. 35). The City sponsorship allows the Amendment to be submitted by a private entity. Staff has worked with the applicant to clarify the language of the original Ordinance. Staff recommends approval of this application for various code text amendments to Section 26.312.030 (C), Extensions LAND USE REQUESTS AND REVIEW PROCEDURES: The City is requesting the following from the City Council: • Determination if application to amend code text meets Standazds of Review pursuant to Land Use Code Chapter 26.310.040 Standards of Review. On February 19`h, a noticed public hearing on a text amendment was held before the Planning and Zoning Commission and a recommendation of approval has been presented by the Commission to the City Council. APPLICANT: Alice Davis, Davis Horn Inc. and Gideon Kaufman, Kaufman Peterson Attorneys, representing Leonard Lauder, property owner and Chris and Lynn Seeman, ADU occupants. PREVIOUS ACTION: On February 19` , a noticed public hearing on a text amendment was held before the Planning and Zoning Commission and voted 5-0 in favor of a recommendation of approval for an amendment to the non-conformities chapter. Previously in 2004, The Planning and Zoning Commission reviewed an amendment to the non- conformities chapter of the Land Use Code in 2004 and recommended denial at a public hearing on October 5, 2004. The City Council approved Ordinance #35, Series of 2004, on November 22, 2004, allowing for amendments to the Non-conformities chapter of the Land Use Code. The amendment allowed a property that was legally established and non-conforming with regard to floor area (over maximum allowable) to add up to 500 square feet of floor area to an ADU. Page 1 of 4 r^ '", BACKGROUND' (From the 2004 Staff Memo) The Lauder residence and ADU were built in compliance with the City's Floor Area code, which has since been amended. The former code granted two floor area bonuses for Accessory Dwelling Units. Fifry percent of an ADU's floor area was exempt if the ADU structure was detached from the primary residence and another 50% was exempt if the ADU was deed restricted to mandatory occupancy. Together, a 100% exemption was available for an ADU that was both detached and mandatory occupancy. The Lauder ADU qualified for this 100 exemption and the primary house was developed to the maximum size considering the bonus. During the period of this mandatory occupancy floor area bonus, three ADU's were developed with a mandatory occupancy restriction. The City experienced significant difficulty in administering the mandatory occupancy and, in 2001, decided to remove this option from the code altogether. The ADU code was amended to require ADUs be detached to gain a growth management exemption for the primary residence and the floor area exemption was retooled to provide a 100% exemption only if the ADU was condominiumized and sold to a local working resident through the Housing Authority's Guidelines. The program allows the property owner to choose the first purchaser, as long as that person qualifies through the Housing Guidelines. At the same time as eliminating the mandatory occupancy bonus, the City amended the code to provide a process of removing the mandatory occupancy restriction from an existing ADU through a landowner provision of either an off-site deed restricted unit or a cash-in-lieu payment equal to the market value of the bonus area. This was done in response to a landowner with a mandatory occupancy ADU. The City's code amendment in 2001 made the Lauder property a "legally created non- conformity." Specifically, the Lauder ADU no longer qualified for a floor area exemption and the property contained too much floor area. The City's non-conforming regulations allow legally created non-conformities to exist in perpetuity, but prohibit expansions of the non-conformity. (i.e. a house that is over it's floor area cannot be added on to.) The Lauder ADU is a one-floor unit developed over a storage basement that was also exempt from the calculation of floor area. The storage area was purposely developed as non-inhabitable space (no window wells) to maintain its being exempt from floor area. Basement levels count towards floor area proportionately to the extent they are exposed. Window wells increase the exposure and require more of the basement level to count towards the property's total Floor Area allowance. Prior to the initial Code Amendment request in 2004, a building permit to install window wells in the ADU structure was submitted to the Building Department and denied due to a lack of floor area. The improvements were built without a permit and the construction was "red tagged" by the Building Department. The improvements were then removed and the property returned to its previous condition. An application to amend the Non-conformities chapter of the Land Use Code was submitted in 2004 requesting modifications to the nonconforming structures section with regard to extensions and ADUs and Carriage Houses. Public hearings followed at both Planning and Zoning and City Council. As a result, Ordinance No. 35 (Series of 2004) was passed. Page 2 of 4 ,° -., ~ .. ~.J (2008 Background) In Mazch 2007, the City was approached by Alice Davis and Gideon Kaufman to discuss the possibility of acting upon the approved language of Ord. #35, Series of 2004. Staff and the applicant representatives have worked to clarify the language which is applicable to only one mandatory occupancy unit (Lauder ADU). On February 19, 2008, the Aspen Planning and Zoning Commission found that the application for the code amendments met the applicable standards of review and recommended approval (by a 6-0 vote). STAFF COMMENTS: Staff has enclosed an Ordinance that demonstrates code text amendments using °'~~' °~hs in red for removed text and iindcrlmrd blue ~htdii~ to denote new text. Each change, or set of related changes, is accompanied by a numbered red box in the left column. To understand the various code text amendments, it may be easiest to look through the Resolution identified as Exhibit B to see the exact code language changes -- while consulting the explanatory text below, which offers a rationale for each code text amendment, using the red boxes. SUMMARY OF THE PROPOSED ORDINANCE: The general allowances for non-conforming structures is now rolled in Section C, the exceptions to "C" are now formatted as a subsection of "C". Clarifies the current text by following a more logical format -that the increase in floor area is only available for ADUs with mandatory occupancy and then breaks the procedure and review standards into subsections. To increase floor area on a property, the application is reviewed as a special review application (requiring notice and hearing before the Planning and Zoning Commission). Additionally, the application must meet the design review standards for an ADU or carriage house and meet additional review standards in the non- conforming section. Most important is mitigating for the additional floor area via extinguishment of a TDR or un-built floor area from another property. Combines standards 1 and 2, eliminates standard 5 (no variance from setbacks can be required), clazifies the standard for TDR extinguishment, and the final standard language has been modified to omit a square footage number from transfer from non-historic properties. RECOMMENDATION: Staff recommends approval of this application for vazious code text amendments to Section 26312.030 (C), Extensions RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFiRMITIVE~: "I move to approve Ordinance No.'~', Series of 2008, upon first reading". ATTACHMENTS: Page 3 of 4 •R- .. `ter EXHIBIT A -Review Criteria and Staff findings EXHIBIT B - 2004 Minutes - P+Z (Sept. 7, Oct 5), City Council (Nov. 22) EXHIBIT C - 2008 P+Z Minutes, Feb. 19 Page 4 of 4 p o ORDINANCE No. (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: 26.312.030 -NONCONFORMING STRUCTURES - MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous amendments to Section 26.312.030 submitted by Gary and Laura Lauder, 850 Roaring Fork Road, Aspen, CO were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clarify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor area on properties with a mandatory occupancy accessory dwelling unit and which are legally established nonconformities with respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public hearing on February 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a vote of six to zero (6-0); and, WHEREAS, the Aspen City Council finds that the proposed text amendments to the meet or exceed all applicable standards pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. WHEREAS, the amendments to the Land Use Code are delineated as follows: Text being removed is strikethrough and red. T ~* ''°~ •,~, r _.,,"~ ~~' ' ~"'' ° ' ~' ~° *''' ~. Text being added is underlined and blue. "heat bein;~ added looks like this. Text which is not highlighted is not affected; and, ~J O NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030. Nonconforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. '~--~~~r-r,T A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. 1. Historic structures. The first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yard and rear yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlargement does not exceed the allowable floor area of the existing structure by more than five hundred (500) square feet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.415. 2. Mandator~~ ocrLiha_nc~ Accessory Dwelling Units and Carriage Houses. _ The c~-ly second esker exception to this requirement shall be for a property with a detached Accessory Dwelling Unit ` ^~-; or Carriage House ("ADU") having a mandatory occupancy requirement. Such a detached ADU ~'mu?e may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU e~^.,..,.;^b•' ~"..,~° and also provided that the ADU or ~ ',~~~~° does not exceed the maximum size allowed for an ADU or carriage house. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. '~~~y--~agt~?6~~2n ^ ""°°°"r" rya, e-lli-nn r r ~' ' ~=a~ta~-" r i a c~ ., i n o ,.~~~., i . ,,, TF+t, + f'+t, ,,,To,T o „+ t,v „~~ ,. o..+l, ; i "te'a ;rl'~ ° + ~ --- ----r-=-- -- ---- --r~ - a..a~ , . u .. aaa ,,, 1,...,7 +„ ,.r;.,.,,,;~4, ~ - St z i ^L.la Tlo„ol.,....+o.++ I?;nl~+~ = i axrs vrrc T .l,T'r' + ~S~1- r T: ict~ F1 c ii l c t ~~~~ Tlo„ol.,,...~,o,,+ 6~~S~E'r - cr s g c~-u vri~r 9 c - ~ a > > ' l ll ; + +l, + rl o.l ~+,...+va ., .a !l 1 A TlT T + r ,n ~n,,rTnr~, .,,,++.,,,~, ,,,+ uaiuaa~ r~ u ~ + F l,' + 11 .-l + a a.-+ +L, + 1, f'~,,:o.,+ n n;1nl.lo ~I,,,,.. J b Y Y J a) Procedure. The procedure for increasing the maximum floor area of a property for the purpose of increasing- the size of an ADU requires the submission of a development application. The development application shall be processed under Chapter 26.430, Special Review. b) Review Standards. An application for increasing the maximum floor area of a pro~erty for the purpose of increasing the size of an ADU shall meet the m-~c~rt~e~~spec-~arzei4ew ~a standards in Section 26.520.050 Design Standards unless otherwise approved pursuant to eyed ~t-~~ as well as the following additional review ~r'~rTa standards: (1)Newly established floor area mawincrease the ADU up to a cumulative maximum of 500 sq. ft. of floor area and is required to be miti>;ated by either of the following two options. alExtinauishment of Historic Transferable Development Rit;ht Certificates ("certificate" or "certificates"). A property owner may increase the ADU by extinguishment of a maximum of two certificates with a transfer ratio of 250 sq. ft. of floor area per each certificate. Refer to Chapter ~6 535 for the procedures for extin uig shing certificates. (b Extinguishment of unused floor area from another property. A property owner may increase the maximum floor area of a property for the purpose of increasing the size of an ADU by extinguishment of a maximum of 500 square feet of available unbuilt floor area from one property to the ADU. {~}(2) The additional floor area is a conversion of existing square footage 4 which was not previously counted in floor area. (Example: storage space made habitable). '?~ or the additional floor area creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. (~1 ~ The additional floor area creates a unit which is more suitable for caretaker families. (41 ~ The increased impacts from the larger size are outweighed by the benefits of having a larger, more desirable ADU. ~r + .~„ .i- ~,. ,~ +^ „a~r~ rho ~.,,~,,,~ ((~~The area and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor area through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. « <.. ~..~ {$~ For the transfer of allowable floor area ^ r° +^^'~"° "" +^ r'"° ~9&~qe-feet from a nonhistorically designated property to an ADU deed-restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore. 1. Non-purposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* P.. /1 \ 4.e~ *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Density on a substandard parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single-family floor area requirements. Section 2• This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 4• A public hearing on this ordinance shall be held on the 12th day of May, 2008, at a meeting of the City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the day of , 2008. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this _ day of , 2008. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor ~.ei \ ' EXHIBIT A Chapter 26.310 AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP Sec. 26.310.040. Standards of review. In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Sta Findings: The proposed code amendments clarify the language, procedure and standards of the nonconforming structures section of the Land Use Code. The proposed changes eliminate confusing language disallowing variances for properties with bonus floor area, which created an inconsistency with the Variance Chapter of the Land Use Code. Stafffinds this criterion to be met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. Staff Findings: Allowing for additional area in an Accessory Dwelling Unit to accommodate a family currently residing in the ADU is consistent with the AACP's goal to provide affordable housing. Stafffinds this criterion to be met. C. Whether the proposed amendment is compatible with surcounding zone districts and land uses, considering existing land use and neighborhood characteristics. Staff Findings: There were originally only two approved ADU's/Carriage Houses approved as a mandatory occupancy unit in the short period of time the legislation was in effect. One of these two ADU's has had it's restriction removed and the Seeman's live in the one mandatory occupancy unit remaining. The applicability of the legislation is quite narrow, therefore Stafffinds this criterion to be met. D. The effect of the proposed amendment on traffic generation and road safety. StatfFindings The amendment will only affect one unit and family. Staff does not fand this criterion to be applicable. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools and emergency medical facilities. .-~. Sta Findings: The amendment will only affect one unit and family. Staff does not find this criterion to be applicable. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Staff Findings The amendment will only affect one unit and family. Staff does not find this criterion to be applicable. G. Whether the proposed amendment is consistent and compatible with the community character in the City. Staff Findings The expansion of an existing ADU is consistent with the community character. Mass and scale can be reviewed through the development application process. Staff ftnds this criterion to be met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Sta Findings_ The expansion of the caretaker family (by one) has affected the subject parcel, requiring additional square footage for the changed condition. Staff finds this criterion to be met. I. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Staff Findings. Because of the narrow scope of applicability for this amendment, and that the intent is to allow an existing family to remain in Aspen, Staff finds that the proposed amendment is in harmony with the purpose and intent of the Land Use Code. Staff finds this criterion to be met. 2 LA1~i1VTNG`&~~O1VI1~G COf1-INIISSn~v _ i~ra.,.,+a~ COMMENTS ..................................... ....... ~.-..:..:. 2 MINUTES ........................... . .:...::: ..:...,. .... s.: ...,:,. .. F..:::: ..:.:::...:.::... 2 DECLARATIONS OF CONFLICTS OF INTEREST ........ INNSBRUCK INN MINOR p(7l5 AI~D~TINIESHARE REVIEW ;...,, ~~~~~~~~~~~~'~ 2 CODE AMENDMENT -TRANSFERABLE DEVELOPMENT RIGHTS .............. 9 ,~^ ,-., ASPEN PLANNING & ZONING COMMISSION =Minutes September 07, 2004 Jasmine Tygre opened the regular City of Aspen Planning and Zoning Commission at 4:30 in the Sister Cities Meeting Room. Commissioners present were Steve Skadron, John Rowland, Dylan Johns, Ruth Kruger and Jasmine Tygre. Jack Johnson and Brandon Marion were excused. Staff in attendance: David Hdefer, Assistant City Attorney; Joyce Allgaier, Community Development Deputy Director; Jackie Lothian, Deputy City Clerk. COMMENTS Roger Haneman submitted his letter of resignation. Jasmine Tygre requested a proclamation for Roger and some sort get together: Tygre asked if there has been an ad for boards and commission members. Joyce Allgaier distributed a survey to the commissioners on the Residences at Little Nell. Allgaier noted that over the weekend of the 17`h and 18`h our community would host Park City visitors and the commission is invited to dinner at Shlomo's on Saturday September 18`h from 6-9pm. MINUTES Jasmine Tygre asked if the commission was prepared to approve the minutes from July 27th, August 3ra, August 10`h and August 17"'. The commission elected to hold the approval of the minutes until the next meeting. DECLARATIONS OF CONFLICTS OF INTEREST None. PUBLIC HEARING: INNSBRUCK INN MINOR PUD AND TIMESHARE REVIEW Jasmine Tygre opened the public hearing for the Innsbruck Inn minor PUD and timeshare review. David Hoefer stated two affidavits of notice were provided and the jurisdictional requirements have been met. Joyce Allgaier stated the Innsbruck Inn was located at 233 West Main; the application included approval for a minor PUD to expand and convert into a timeshare lodge from a traditional lodge. The applicants wanted to add a wing onto the western part of the building towards Main Street; the proposal included cosmetic and physical changes to the interior and reorganization of the room layout. The 33-unit lodge would be converted into l Otwo-bedroom suite and 2 one-bedroom suites for a total of 221ock-off units and one voluntary affordable housing unit on site. Allgaier said the applicant wanted to reconfigure the parking 2 ,.:,. ~, ASPEN PLANNING & ~bN1NG"~~1H141>CS~Itl1~T-=minutes Seutember 07,2004 situation; currently there was a curb cut on Main Street that would be eliminated and utilize parking on South Second Street. Allgaier noted the Historic Preservation Commission supported the elimination of parking from the front on Main Street and the head-in parking on South Second conflicted with Historic Preservation Goals of leaving the streetscapes in tact and not cut into the green-strip but rather utilize the 12 parking spaces in the back in the alley. Allgaier explained one parking option was coming in off Main Street with 4 parking spaces orientated so they could back out on-site and head out onto Main Street and using Second Street. Staff and HPC did not favor the South Second Street option; there were many spaces on the street, which could accommodate the lodge use. Allgaier stated the dimensional requirements met with the underlying Office (O) zone district and they were not asking for an increase in height; the lodge character was maintained with the cosmetic enhancements and landscaping. There was no net increase of employees. Staff recommended approval of the proposed resolution with conditions and the recommended parking option to utilize the 12 spaces in the alley and on street parking in the neighborhood. Mitch Haas, applicant's planner, explained that the architecture on the front fagade would add a couple of dormers but the main ridgeline did not change. The new wing would be built to match the other side to give symmetry to the building with the lobby on the ground floor and a common room above it. The remainder of the building would be the reconfigured lodge rooms combining 4 front and back rooms making 10 2-bedroom suites with the bedrooms on the back half with a living/kitchen area in the front and lock-offs and 2 1-bedroom suites, which is a total of 22 keys. There will be new basement space under the new addition for storage, laundry and house needs. The affordable housing unit will be below grade under the office, which wasn't necessary for the approval and the lodge manager would be housed in that unit. Haas noted the affordable unit exceeds the housing standards with regards to natural light and amenities. Haas stated the parking plan included public head-in spaces on Second Streetright- of-way but did not go over well with HPC or staff so the idea was abandoned unless P&Z and Council approved of that parking. Haas said the number of bedrooms decreased in the lodge so the parking demand, in theory, decreases substantially as well. The LP program allows a deficit in parking; the city counts the alley spaces as 6 parallel and not 12 pull-in spaces because of the encroachment into the alley. Allgaier said the city counted 10 spaces. Haas stated ~' W A.. ~.~ they counted 12 from the last approval and provided a few alternate parking plans. One plan included retaining the Main Street curb cut with 4 spaces in front with a hammerhead option of 2 spaces facing east and 2 facing west. The other option, which no one seemed to like, was to simply provide 3 spaces off the front but hasn't gone far. Haas said that they could eliminate the parking spaces in front and curb cut making the area a courtyard with landscaping, which would add maybe 2 parallel parking spaces on Main Street that don't exist today. Haas requested the option of maintaining 2guest-loading spaces for check-in and checkout either on Main Street or one on Main and one on Second. Allgaier stated that 16 spaces were required by the land use code and the application included 12 across the alley. Haas noted the deficit now with the 33 units and 12 spaces as opposed to the proposed 22 bedrooms with 6 spaces. Haas said the dimensional requirements were established through the PUD with. setbacks as drafted in the resolution and those conditions were acceptable with the addition of 2 guest check-in/checkout spaces. Other amenities were providing a better bus stop. Haas stated from studies the traditional timeshare projects, which were considered affordable for fractional projects, had an average occupancy rate of about 80% and this lodge has been running at a 43% occupancy rate. They felt by increasing the occupancy rate it offset the decrease in the number of bedrooms.. This plan keeps it running as a lodge. Steve Skadron asked why the occupancy was at 43%. Haas responded it was partly location and the decor of the rooms was fairly antiquated. Skadron inquired what was meant by affordable. Haas replied they had to disclose average sale prices, which were $74,000.00 to 157,000.00 per share. Gwen Dickenson provided the price points for the fractional sales. Allgaier commented the other. fractional , projects ranged from $300,000.00 and upper share. Haas said these properties would act as a second home. Dylan Johns asked how long the current owners operated the Inn. Haas replied the current owners just bought this last year; the history provided went back 5 years with the previous owners. Dickenson said the Haisfields owned the Inn for 7 years prior. Johns asked the general dimensions for the 2-bedrooms. Dickenson replied the smallest was 1,040 square feet and 1,338 square feet was the largest with 4 units; the average was 1200 square feet. Johns asked the origin of Exhibit 8. Haas replied it was the Performa required by the timeshare ordinance with a proposed 4 owners budget. Johns asked when the last capital improvements were made on this property. "Dickenson replied last year and the occupancy remained the same. Jasmine Tygre asked if there was any indication from the city to change the 12 parking spaces in the alley to 6. Haas answered no; the 6 was a technical numbers calculation for code compliance and after the last approvals an encroachment license was issued to leave the parking the way it was. Tygre asked if there were any problems in the past for the parking of hotel guests. Haas replied no and this neighborhood doesn't have a parking problem. Allgaier said there was no objection from parking or engineering for on street parking in the neighborhood. Tygre asked if the setbacks were a minor deviation form the code. Allgaier cited the table on page 3 of the staff memo the underlying zoning required 5 feet on the. side yard and the proposed was 4 feet; 15 required and 13.5 feet proposed for the rear yard setbacks. Haas stated the architecture would be reminiscent of the chalet style with gables and exposed joists providing the horizontal breakup pattern. Public Comments: Scott Martin, public, said he was moving immediately across the alley and approved of the proposal. Martin said there were no concerns about the parking on the street. Haas requested the addition of a condition adding the check-inlcheckout guest spaces. Johns said the parking wasn't an issue but another lodge going timeshare was an issue. Allgaier stated that the criteria for judging the project were from the PUD; the. goals of the fractional ownership regulations were to make fractional ownership as much like a lodge as possible. Allgaier said when the units were not used by owners the units were placed into the rental pool. Johns stated that there was no operable timeshares to come out of the regulations at this time. Ruth Kruger agreed with Dylan about. loosing the small lodges and questioned the ability of this small lodge being operated as fractional ownership. Allgaier said there were mandatory operational characteristics. Haas stated that the timeshare was a way to provide hotbeds and keep the lodges working as opposed to a lodge running at a loss. Haas explained there were 12 estates in each unit with the rights to 4 weeks over a year, which adds up to 48 weeks a year leaving 4 weeks per unit set aside not being used by the owners to go into a central reservations pool. Haas stated there was a front desk and they planned on a local and national reservation system; this was a different market than the Hyatt, Dancing Bear or Nell. ~. ~..~ ASPEN PLANNING & ZONING COMMISSION -Minutes Seatember 07, 2004 Tygre said that the commission and planning staff had concern for the number of timeshare applications that have been proposed. Tygre said that this was the first lower price-point timeshare proposal and maybe the "wish list for the commission" should include re-visiting lodge revitalization because it has become lodge conversion to timeshare. Tygre said Ruth's point about the Hyatt having an established reservation system in place as opposed to a small lodge without that dependency. Commissioners Tygre, Kruger, Skadron and Johns all shared concern for the timeshare use in general. Kruger remarked that 33 rooms were being converted into 12 suites and asked where the lower end guests would stay; this could eliminate an entire population of guests from the pool. Allgaier said that she will request a joint work session with council and P&Z on the timeshare concerns. John Rowland did not feel this project was a problem for timeshare but agreed with the commissioners on the need for a work session on timeshare. Kruger said if the on-site parking were taken off Main Street and placed on South Second Street it would improve the traffic flow removing the curb cut; she was always opposed to under-parking any project. All commissioners agreed with the removal of the Main Street curb cut. MOTION: Ruth Kruger moved to recommend that City Council approve Minor Planned Unit Development, Subdivision, Timeshare, and Lodge Preservation and Affordable Housing GMQS Exemptions for the Innsbruck Inn, a property located at 233 West Main Street to expand and convert to a timeshare lodge consisting of twenty-two (22) lodging bedrooms and aone-bedroom affordable housing unit, with the following COndltions: 1. A final Subdivision/PUD agreement shall be recorded at the Pitkin County Clerk and Recorder's ice within 180 days of the final approval by the Historic Preservation Commission (the HPC). 2. A final Subdivision/PUD Plan shall be recorded in the Pitkin County Clerk and Recorder's t~ce within 180 days of the final approval granted by the HPC and shall include the following.• a.) A final plat meeting the requirements of the City Engineer and showing: easements, encroachment agreements and licenses (with the reception numbers) jor physical improvements, and location of utility pedestals. b.) An illustrative site plan of the project showing the proposed improvements, landscaping, parking, and the dimensional requirements as approved. c.) A drawing representing the project's architectural character. 3. The following dimensional requirements of the PUD are approved and shall be printed on the Final Illustrative Plan: ... ASPEN PLANNING & ZONING Cbh'IlVI~S~~Ur1'-'Minutes Seutember 07.2f~04 4.The building permit application shall include: a.) A copy of the final Ordinance and recorded P&Z Resolution, as well as the Final HPC Resolution. b.) The conditions of approval printed on the cover page of the building permit set. c.) A completed tap permit for service with the Aspen Consolidated Sanitation District. d,) A tree removal permit as required by the City Parks Department and any approval from the Parks Department Director for olj=site replacement ar mitigation of any removed trees. The tree removal permit application shall be accompanied by a detailed landscape plan indicating which trees are to be removed and new plantings proposed on the site. e.) A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civtl Engineer, which maintains sediment and debris on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 2 year storm frequency should be used in designing any drainage improvements. f.) A construction management plan pursuant to the requirements specified in Condition No. 21 included herein. g.) A fugitive dust control plan to be reviewed and approved by the Environmental Health Department, as detailed in Condition No. IS included herein. 5. Throughout-the structure, the Applicant shall install a fre alarm system meeting the requirements ofthe Fire Marshal. The Applicant shall also install a fire sprinkler system that meets the requirements ofthe Fire Marshal. 6. Prior to issuance of a building permit: a.) The primary contractor shall submit a letter to the Community Development Director stating that all conditions of approval have been read and understood. b.) All tap fees, impacts fees, and building permit fees shall be paid. If an alternative agreement to delay payment of the Water Tap and/or Parks Impact fee is finalized, those fees shall be payable according to the agreement. 7. The Applicant shall convey an undivided fractional interest (one-tenth of one percent (0.1 %)) in the ownership of the deed-restricted employee housing to the Aspen/Pitkin Counfy Housing Authority for the purposes of complying with rent control legislation and common law. To satisfy rent control issues, the Applicant may submit an alternative option acceptable to the City Attorney. Conveyance of the undivided fractional interest in the affordable housing unit steal! occur prior to issuance ofa cent fcate of occupancy on the reconfgured and expanded lodge. 8. Ifthe Applicant 7 r'~. ~-,. ~, ~. ASPEN PLANNING & ZONING COMMISSION -Minutes Seatember 07, 2004 conveys an interest in the affordable housing unit to the Housing Authority as described in Condition No. 7 above (rather than an alternative acceptable to the City Attorney), the Applicant shall indemnify and hold harmless the Aspen/Pitkin County Housing Authority and City of Aspen from any claims, liability, fees or similar charges related to the Housing Authority's ownership in the deed restricted employee- housing unit. 9. Prior to issuance ofa building permit, the Applicant shall record a deed restriction jor the employee-housing unit. The employee-housing unit shall be deed restricted at the Category 2 rental rate, but since the unit is included in the lodge itself and intended to house employees of the lodge, income and asset restrictions shall be waived. Further, the Applicant shall meet with the Housing Office Stafj'prior to the completion of construction to establish mutually acceptable lease ter»u for employees whose units are attached to the business. 10. The Applicant shall complete (prior to any of the remodel work, including removal ofdrywall, carpet, tile, etc.,) the Building Department's asbestos checklist, and if necessary, a person licensed by the State to do asbestos inspections must conduct an inspection. The Building Department cannot sign any building permits until they get this report. If there is no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. 11. The Applicant shall repair any cracked or uneven sections of sidewalk adjacent to the property and improve the sidewalk, curb, and gutter in the adjacent public right-of--way along Main Street and along South Second Street to meet the City Engineering Department's Standards, which includes replacing the Main Street gutter system adjacent to the Innsbruck property to provide a gutter with a slope that meets the City Engineer's specifications. The curb along Main Street adjacent to the subject property shall be improved to a six (6) inch vertical curb. 12...The Applicant shall extend the sidewalk that exists adjacent to South Second Street across the alleyway with six (ti) inch thick reinforced concrete. The Applicant shall also instal! a concrete driveway ramp meeting the City Engineer's standards from South Second Street to the sidewalk that is to cross the alleyway.l3. The Applicant shall pay the appropriate Street Impact Fees to the City ofAspen for excessive wear to the streets caused by construction traffic as determined by the Engineering Department. 14 The Applicant shall be required to show plans for all improvements, snow storage areas, utility pedestals, districts, curb and gutter, and sidewalk improvements prior to building permit issuance. /5. The Applicant shall submit to the Environmental . Health Department a fugitive dust control plan which includes, but is not limited to fencing; watering of disturbed areas, continual cleaning of adjacent paved roads to remove mud that has been carried out, or other measures necessary to prevent windblown dust from crossing the property line or causing a nuisance. This shall be required with the submittal for building permits. 16. The Applicant shall instal! tree saving construction fences around the drip line of any trees to be saved subject to the following provisions: a.) The City Forester orhis/her designee must inspect this fence before any construction activities commence. b.) No excavation, storage of materials, storage of construction equipment, construction backfill, foot or vehicular traffic shall be allowed within the drip line. 17... The Applicant shall instal! a tree root barrier on the trees that are to be planted within ten (10) feet the sidewalk, curb, and gutter to prevent future root damage and sidewalk upheaval. 18. The Applicant shall comply with the City ofAspen Water System Standards, with Title 25, and with applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) ojthe Aspen Municipal Code, as required by the City of Aspen Water Department. 19. The Applicant shall comply with the Aspen Sanitation District's rules and regulations. If new sewer lines are required, then the existing service must be excavated in the alley and disconnected at the main sewer line. No clear water connections (roof, foundation, perimeter drains) to sanitary sewer lines shall be allowed. All improvements below grade shall require the use of a pumping station. 20... The Applicant shall abide by all noise ordinances. Construction 6ctivity is limited to the hours between 7 a.m. and 7 p.m on Monday tlrru Saturday. 21... There will be no construction material or dumpsters stared on the public rights-of--way unless a temporary encroachment license is granted by the City Engineer. In addition, the Applicant shall submit a full set of construction management plans that are consistent with the City Construction Management Plan Guidelines at the time of building permit submittal. 22. The Applicant shall submit a food service plan for review by the Environmental Health Department and obtain a food service license if required, prior to serving food in the multi purpose roam. If determined to be necessary by the Aspen Consolidated Sanitation District, the Applicant shall install an ~. _~ . ,,. oil and grease interceptor in the multi purpose room/kitchen. 23..,The Applicant shall join any future improvement districts that are formed to complete future City approved improvements to the adjoining/ surrounding right-of--ways. 24. All exterior lighting shall meet the City of Aspen Lighting code pursuant to Land Use Code Section 16.575.150, Outdoor Lighting, as maybe amended from time?o time. 2'S. All design, installation, and maintenance ojthe pool and spa must comply with the State of Colorado's "Swimming Pool and Mineral Bath Regulations. " Pool water_shall be,drain~d directly into the sanitary sewer and shall not be drained into the storm sewer. The Applicant must have the Aspen Consolidated Sanitation District approve the drain size for the swimming pool and spa before installing them. 26. Each owner of an estate shall have an undivided interest iti the common recreational Areas within the facility. 27. The Applicant shall pay the applicable school land dedication fees as determined by the City of Aspen Zoning Officer prior to building permit issuance. 28. All. unsold timeshare_unitsthot are,not , r used by the Applicant for exchange, marketing or promotional purposes shall be made available for shord-term rent until purchased. This condition. shall be included in the PUD/Subdivision Agreement to be recorded in the Pitkin County Clerk and Recorder's Office. 29. Nothing in the timeshare documents shall prohibit short-term rentals or occupancy. It is the intent of this condition that the non-deed restricted units shall 6e available jorshort-term rental purposes when not occupied by the purchaser or its guests or utilized for exchange programs. The Applicant shall submit timeshare documents to the City Attorney for review and approval prior to recording them at the office of the Pitkin County Clerk and Recorder. 30. The Applicant shall maintain the option ofsigning up to two (2) on-street parking spaces adjacent to the Innsbruck Inn as short,(erm,drop-offparking for guests checking in and checking out. If the Applicant chooses to sign up to two (2) on-street parking spaces as short-term drop-offparking, they may sign the spaces either on Main Street or South Second Street. S2COn(121~,by Dylan Johns. Roll call vote: Skadron, yes; Rowland, yes; Johns, yes; Kruger, no; Tygre yes. APPROVED 4-1 PUBLIC HEARING: (l U1JIi A1V1y1 \L1V1L~ 1~ 1 ~ I nHl~ l7r L~JI~C~LLL LL ~ LLVl i - i. i ~ ... Jasmine Tygre opened the public hearing for the TDR Code Amendment, notice was provided. Joyce Allgaier explained that Gideon Kaufman presented this code amendment on behalf of the Lauder family. City Council requested per Gideon Kaufrnan this code amendment and after.the, P&Z review it_ will go to Council. Allgaier stated the former code granted floor area bonuses for 50% for detached ADUs and another 50% for deed-restricted ADUs„so m this situarion the ADU was 100% exempt from the floor area charge. The Lauder's built the main residence to the maximum floor area. Allgaier said after this. was built there was_a code. change that required ADUs to be detached and the. Moor area exemption was revoked unless it were condominiumized and sold to a working resident. That was what made this property non-conforming; the Lauder property was a legally created non- conforming ADU. The applicant's wanted to convert the basement, into livable space. Staff identified 2 options that could exist where the Landers decreased the size of their house in order to add to the floor area of the ADU or deed-restrict and sell the ADU and neither option was being sought by the applicant at this time. ,-.. !I ASPEN PLANNING & ZONING COMMISSION -Minutes September 07, 2004 Staff did not recommend approval because it was unclear if the proposal was to allow only enough floor area to accommodate the expansion or that the TDR purchase would make up for the deficit. The proposal was for a by right system and staff felt it should be a special review to weigh in on each case-by-case scenario. Allgaier said there was the possibility of a number of applications but were not sure how many and would like to see the fledgling HPC TDRs get under way before adopting another TDR program. Gideon Kaufman, represents the proponent of this code amendment, said that a detached and deed-restricted ADU created floor area exemptions for the residence; the code changes created the non-conformity. Kaufman said when the ADU was built there was a kitchen, bath, bedroom and living area and below grade there was an existing office, storage, mechanical and a full bathroom. Because it didn't have the required ventilation and light it didn't count in FAR. Kaufinan said it was probably the best ADU built in Aspen but they have tried to figure out how to accommodate the growing needs of a family. If 2 window wells were added for the required light and ventilation then the FAR counts and you cannot add FAR because it was non-conforming. Kaufrnan said that was why they came forward with the proposed code amendment to help these detached and mandatory rented ADU units; he distributed an amendment to the code amendment adding special review. These TDRs from free-market housing can only be transferred to an ADU and would only count for the amount of square footage added. Kaufman illustrated through photos and drawings the placement of the window wells. Kaufman restated the floor area would be utilized from free-market to enhance Affordable Housing Program; it would be positive for the community. Jasmine Tygre inquired about the number of ADUs that would be affected by the code amendment. Kaufman said the size of the ADU has also increased arid at special review P&Z would make the decision. Johns asked why the TDR part of this speak to the free-market and not tie into the Historic TDR program. Kaufman replied the Historic TDR program means that a TDR can only come from a Historic structure; those TDRs are worth $100,000.00 to $150,000.00 per TDR, which makes sense because it is free-market value but if you increase an employee unit they don't want to pay those TDR prices. Tygre asked where these TDRs would come from that would be so much cheaper. Kaufrnan replied that there were a few properties and the. TDR would include deed-restrictions but Historic TDRs could not be used for this program. to !/ ... .. f ASPEN PLANNING & ZONING COMMISSION -Minutes September 07.2004 Steve Skadron asked how the TDR receiving property would be able to accept the TDR if it was built to what was at the time the maximum and now why would it be acceptable. Allgaier replied that was one of issues. Kaufinan responded it was only for the affordable housing program and would not exceed what the code allowed for the ADU to be expanded up to. Tygre asked what the criteria would be cited. Kaufman replied the code for special review, compatibility with the neighborhood, impacts on water and sewer. Tygre stated that everything was in pieces and it was not clear what P&Z was to vote on; those criteria were not included. Kaufman answered it was referenced in the code. Tygre said she wanted all the pieces in front at the same time and how many properties were involved in this type of situation. Skadron asked the size of an ADU. Johns replied the size ranged from 300 to 900 square feet net livable. The commissioners voiced concern for the incomplete information on the number of units that could be affected; the specific criteria for the special review; specific and detailed restrictions on the sending party, site specificity; the addition of dimensional requirements regarding the detached ADU and enforcement. The commissioners were concerned about the TDR program. MOTION: Steve Skadron moved to continue the public hearing for the TDR Code Amendment to September 21, 2004; seconded by Ruth Kruger. APPROVED S-0. Meeting adjourned at 7:00 p.m. < , ckie Lothi ,Deputy City Clerk I1 ~ton,r.~ ASPEN PLANNING & ZONING COMMISSION-Minutes -October OS 2004 COMMENTS ..............:.........................................:..........:............:....:.....:............::::.......:>::.::,:.: 2 ...... MINUTES ..............................:............... ..................................:............:....::::a;;..,.;:,: ~,:::::. 2 DECLARATIQNS OF CONFLICTS OF INTEREST ......................:.............................. 2 CODE AMENDMENT-TDR'S ............................:.:.............:..:......:......:..:..:.~.........:.............2 LOT 1, ODEN LOT SPLIT STREAM MARGIN REVIEW ........:................................ a 707 E. HYMAN CONDITIONAL USE FOR COMMERCIAL PARKING LOT... 5 r^ ~. ~~ ASPEN PLANNING & ZONING COMMISSION-Minutes -October O5, 2004 Ruth Kruger opened the regular meeting of the Aspen Planning & Zoning Commission in Sister Cities Meeting Room. Commissioners Brandon Marion, Ruth Kruger, Jack Johnson, John Rowland and Steve Skadron were present. Staff in attendance: David Hoefer, Assistant City Attorney; Chris Bendon, Chris Lee, James Lindt, Community Development; Jackie Lothian, Deputy City Clerk. COMMENTS Ruth Kruger hoped this meeting would adjourn by 6:45 p.m. Kruger inquired about the new windows in the Elli's building and asked if they were historic or went through a historic review process. James Lindt will follow up on Ellis. MINUTES MOTION.• Jack Johnson moved to approve the minutes from July 27, August 03'd, 11 `~' and 17`ti, September 7"' and 21 s` 2004; seconded by Steve Skadron. Rowland, Johnson and Skadron approved the minutes, Motion Carried. DECLARATIONS OF CONFLICTS OF INTEREST None stated. CONTINUED PUBLIC HEARING (09/21/04): CODE AMENDMENT-TDR'S Ruth Kruger opened the continued public hearing on the Code Amendment; Chris Bendori noted this was a continued hearing from 9/21 S`. There were 5 members present for this hearing. Gideon Kaufrnan addressed the 2 items that concerned P&Z and placed suitable review by Planning & Zoning and staff. Kaufman raised questions regarding staff's interpretation that the only way to accomplish this was through the Historic TDR Program. Chris Bendon stated there was concern that this would take away from the Historic TDR Program, which has not yet been proven. Kaufman said this code amendment was for this particular unit because of code changes, which leas made this anon-conforming unit so they cannot add 2 window wells to make the downstairs legally 2 bedrooms. Kaufman said their TDR code amendment was only used for employee housing; their TDR program enhances only affordable housing and doesn't have the same mark-up as the Historic TDR Program so they are not taking from that existing Historic TDR Program but they are creating a market from the surplus of free-market housing and converting it for the community. Kaufman said that each special review would go through P&Z for approval for each particular situation, which accomplishes a valuable community goal. Kaufinan provided the criteria for P&Z to follow. „ .,.n .: ASPEN PLANNING & Z NTNG COIVIM)"SSYCSI~`=lifiiriutes - bcfober U~ ~bU4 Ruth Kruger asked where the TDR was coming from. Kaufman replied that it was from afree-market house that did not want to.use all of the FAR allowed. Kruger reiterated that Kaufman was creating a new program (code amendment) that would create sending sites that were not historic and opening the market for a larger opportunity taking FAR from afree-market house to an ADU.' Bendon re- stated concern for the demand and the Historic Program could leverage the TDRs. Jack Johnson asked if the code had never been changed would there have been sufficient FAR on this property to amend this ADU. Bendon answered no. Johnson asked if the transferred floor area must accommodate the extent of the non-conformity plus the expansion or if only just the floor area has been resolved. Bendon replied that Joyce covered the first meeting on this and P&Z addressed that question by saying that you should only cover the amount that is necessary to accommodate the actual expansion and should have to first cover the overage. Johnson asked the overage. Bendon answered it was 750 square feet. Johnson stated that was only created because the bonuses were taken away, correct. Bendon explained that between 1999 and 2002 where there were 2 bonuses for ADUs; one for detached ADLJs that provided 50% bonus and the other was for mandatory occupancy. Bendon said there were 3 mandatory occupancy ADUs created and this was the only one occupied. Bendon said in 2002 the bonuses were taken away and the only way to ensure the 100% bonus was if the ADU was sold through the housing lottery system. Johnson asked by simply selling this ADU to the family that was living there was insufficient without a TDR. Bendon replied that was correct. Public Comments: Lynn and daughter, who live in this ADU, were present. Kaufman stated that when this unit was legally built it was mandatory rental. Kaufrnan stated that this code change would allow this ADU to expand and continue to house this family. Bob Staradoj, public, asked if there had ever been a case where an ADU on site has been sold. Bendon replied no; the community was looking,for the first one to be sold. Bendon added if the ADU were sold the property owner would gain a 100% of the FAR, which was exempt and the property owner gains an additional 50% FAR bonus. David Hoefer reiterated that the commission was not dealing with'a specific case for this code amendment. Bert Myrin, public, stated that the code that Jack and Chris spoke about gave an incentive to the employee side and what was presented tonight was from the employee side not the owner side. Myrin reiterated what Chris stated for the bonuses. C ~ ASPEN PLANNING & ZONING COMMISSION-Minutes -October O5, 2004 John Rowland stated that he was in favor of this code change and the only negative aspect was administrative for. staff; he said that staff could handle the, challenge. Steve Skadron shared John's thoughts considering the restrictions placed on the economics on the property and there was a viable argument for this but Skadron also shared Jack's concem of getting this done under the,current code. rather than. actually changing the code: Jack Johnson stated 3 issues: there were ways that this could be done for this family under the existing code; this code change was in the best interest for this applicant but not for the city and voiced concerned about the TDR sending and receiving sites. Brandon Marion mirrored Jack's no vote because of the far- reaching effect on the entire city. Ruth Kruger asked how long the historic TDR program has been in existence and the number of applications to date. Bendon replied it has been in place for about 7 months and there was one application pending. Kruger said that the vote on this code change wouldn't diminish a program that wasn't being utilized. Kruger did not see a problem with this application and P&Z would look at each application for these types of situations. MOTION: Brandon Marion moved to approve Resalutibn #30, 2004 recommending approval of a code amendment to permit expansion of non- conformingstructures; seconded by Steve Skadron. Roll call vote: Rowland, yes; Skadron, no; Johnson, no; Marion, no; Kruger,. yes. DENIED 3-2. Bendon asked the commission if there was a particular element of this code amendment that if it were different then you would support it. Marion replied he liked the concept of giving FAR to affordable housing but wanted a more comprehensive plan than the one presented. Johnson said it would have to be a last resort otherwise more big houses were being created and Johnson wanted the Historic TDR Program to prove itself prior to creating another TDR program. Chris Bendon introduced Chris Lee the new planner. PUBLIC HEARING: LOT 1.ODEN LOT SPLIT STREAM MARGIN REVIEW Ruth Kruger opened the public hearing for the Stream Margin Review for Lot of the Oden Lot Split. David Hoefer said that the notice was received and the requirements have been'met; the commission had jurisdiction to proceed. James Lindt stated that the Stream Margin Review was to determine the top of slope; Lot 4 ASPEN PLANNING & ZONING COMIVIIS~ION-Minutes -October OS 2004 1 was adjacent to Red Mountain Road with Hunter Creek along the north side of the property. A survey showed the top of slope at the elevation of 7870. Lindt utilized a drawing to illustrate the top of slope. Staff agreed with the top of slope from the survey. Lindt said that a stream margin review-would be sought after the house was designed. Bob Staradoj, applicant, stated that walking on the site made it easy to determine the top of slope. Lindt said that there were several photos of the property. Jack Johnson asked about the fisherman's easement. Lindt replied that the fisherman's easement couldn't be required any longer; the. code was changed to encourage a fisherman's easement. No public comments. MOTION.• Brandon Marion moved to approve Recsolution #31 for a stream margin review request to establish Hunter Creek's top of slope at the elevation of 7,870 feet above sea level on Lot 1, of the Oden Lot Split, with the following Conditions: 1. The Applicant shall applyjor another stream margin review to construct a residence on the subject site since this stream margin review approval simply establishes Hunter Creek's top of slope as it relates to the development of the subject site. 2. The Applicant shall record an amended plat at the Pitkin County Clerk and Recorder's ice that reconfigures the building envelope on the subject parcel in a manner that would make the north and west sides of the building envelope joflow Hunter Creek's top ojslope as established herein. 3. As a cpndition of any future stream margin review application on this site, the Applicant shall be required to erect silt fence and construction fencing at the top ofslope determined herein. Seconded by Jack,7ohnson. Roll call vote: Skadron, yes; Rowland, yes; Johnson, yes; Marion, yes; Kruger, yes. APPROVED S-0. PUBLIC HEARING: 707 E. HYMAN CONDITIONAL USE FOR COMMERCIAL PARHING LOT , Ruth Kruger opened the public hearing for a commercial parking lot at 707 East Hyman. David Hoefer stated that 2 affidavits of notice were provided and the commission had jurisdiction to proceed. James Lindt noted this was located in the office zone district located between the Hannah Dustin building and Benedict Commons Affordable Housing, the site was formerly known as Park Place. Lindt stated the applicant proposed a commercial 19 space surface level parking lot accessed off East Hyman and closed the alleyway access. The conditional use was for the 5 spaces in addition to the off-street parking requirements for the site (Hannah Dustin). The applicant proposed landscape screening for the Benedict Commons building and to remove the gate. There would be a wrought iron fence ~, ,.-.~ ASPEN PLANNING & ZONING COMMISSION-Minutes -October O5, 2004 with a chain between the posts around the perimeter of the property. Staff felt the site plan should be flipped so that access was from the alley rather than East Hyman; environmental health wanted PM-10 mitigation. Staff suggested dust suppressant on the gravel once a year. Lindt said that chain was not an acceptable fence material and was a condition of approval to meet the land use code recommended fence materials. Staff did not recommend approval. Stan Clauson, representative for the applicant, utilized maps and drawings to illustrate the location and stated the site has been used for parking for over 20 years with the entrance off of Hyman. Clauson noted that Peter Fomell removed the A- Frame building and graded the parking lot. Mr. Fomell worked with the Parks Department to install street trees on Hyman. Clauson did not agree with staff on the materials and what the code provides or doesn't provide on parking. Clauson said Mr. Fomell wanted to establish the conditional use as a commercial parking lot accessory to the Hannah Dustin Building. Clauson stated that this was presented as parking to the general public with monthly leased tenants. Clauson stated this was not a PUD application but a conditional use application. Clauson noted the resolution provided 7 conditions and this was not achain-link fence. Lindt clarified that the conditional use was for the spaces (3-4) above what was required for the Hannah Dustin Building. Brandon Marion asked if the fence that was currently on site was what the proposed fence would look like. Peter Fomell replied that was the fence other than what will be used for the last few units of the Benedict Commons. Steve Skadron asked the applicant if this was laying the groundwork for something grandeur at a later time. Fornell disputed that; this was an alternative use to the application. Clauson stated this application represented a full utilization of the site. Fomell noted there was litigation pending on the last application. Jack Johnson stated that since 15 or 16 spaces were needed for the Hannah Dustin Building parking mitigation the applicant could just plan for that many spaces and never come before P&Z for a conditional use. Lindt replied that was correct: Johnson asked how many cars utilized the lot when the A-Frame was still there. Fornell answered it wasn't very organized but anywhere from 20 to 24 cazs; sometimes 3-4 cars would have to move to get a car out. Kruger asked Stan what PM-10 was. Clauson answered it was particulate matter ten microns or less, which is a fine dust. ,,,~ ASPEN PLANNING & ZONING COMMISSION-Minutes -October 05, 2004 Public Comments: 1. Mike Hoffman, public, stated that he was a local attorney representing the Bell Mountain Residences Condominium Association. Hoffman distributed a letter. Hoffman stated Bell Mountain residents opposed the Park Place project because of the rear yard setback and height variances; they also felt it was the wrong use in that location. Hoffrnan asked if it was fair to impose a disproportionate amount of parking on this site and neighborhood when there has been no master planning for this area. Hoffman reminded the commission of the 15-foot setback in the Office Zone District. 2. Herb Klein, public, attorney for the 700 East Hyman Condominiums noted the code section that he cited in his letter 26.710.180 CS a commercial parking lot is a conditional use that is independent of required off-street parking. Klein said there were problems with gravel, headlights, lighting, hours of operation and employee generation to check the lot. 2. Hanna Pevny, public, stated that she was the.president of the Aspen Chamber Resort Association and supported this project including the entrance on Hyman. Pevny said that parking was a huge issue in this community and a lot depends on tourism; about 75% of the non-winter visitors come by car from the 2000 study. 3. Fred Martell, public, stated that there was no question that Aspen needs parking but this was not the answer. Martell said the sound of gravel when there is no other noise is very disturbing; if this is approved it must be paved and the plan should be flipped so the entrance is in the alley. Martell said that during the day this street was busy but at night it was very quiet; he voiced concern about someone finding the manager of the parking lot in the evening to get out of the lot. . Martel] said this was not the proper area for this parking facility. MOTION.• Jack Johnson moved to continue the public hearing for 707 East Hyman Conditional Use for a Commercial Parking Lot and the As~en Consolidated Sanitation District PUD Master Plan to October 12' ;seconded by John Rowland. ALL INFAYOR, MOTIONAPPROVED. Meeting adjourned at 7:05 p.m. ckie Lothian, D puty City Clerk 7 ~cH~eir c Pc - FPhrnarv 19. 2nnR MINUTES ..................................................................................................................2 COMMENTS .............................................................................................................2 DISCLOSURE OF CONFLICTS OF INTEREST ....................................................2 CODE AMENDMENT PUBLIC NOTICE ...............................................................2 CODE AMENDMENT REGARDING NON-CONFORMITIES ............................5 ASPEN CLUB CONCEPTUAL SPECIFICALLY PLANNED AREA ...................6 I ~_ LJ Erspamer, vice-chair, opened the regular meeting of the Aspen Planning & Zoning Commission Meeting in Sister Cities meeting room at 4:30 pm. Commissioners present were Michael Wampler, Cliff Weiss, Stan Gibbs, Dina Bloom, Brian Speck and LJ Erspamer. Jim DeFrancia and Dylan Johns were excused. Staff in attendance: Jim True, Special Counsel; Chris Bendon, Jason Lasser, Jessica Garrow, Community Development; Jackie Lothian, Deputy City Clerk. MINUTES MOTION: Dina Bloom moved to approve the minutes from January 29`" and February 5`"; seconded by Michael Wampler. All in favor, approved. COMMENTS Stan Gibbs requested that staff memos be embedded in the documents for one point of reference to follow the resolutions. DISCLOSURE OF CONFLICTS OF INTEREST LJ Erspamer wanted to disclose that he was the main organizer for the 3 committees for the ARC but at the time there were not any weight rooms or aerobic rooms; so this was a disclosure. CONTINUED PUBLIC HEARING: CODE AMENDMENT PUBLIC NOTICE LJ Erspamer opened the continued public hearing. Jim True stated this was a public hearing and it was duly noticed; published once, all that was required. True said the two questions that remained after last week's discussion were 1. the content of the notice and if there should be a mailing address and additional information provided by an applicant; there would be a statement that a hearing may be continued from time to time and 2. whether the posted notice shall remain on the property throughout the process or some other aspect of that, shall the dates be changed rather than the from time to time language. True reiterated the two issues 1. is the content of the notice as far as the name and additional information of the applicant and 2. whether posted notices shall remain up after the initial hearing if there is a continuance and how it should remain up. True said this was totally discretionary at P&Z and will go to Council with either a recommendation of approval or denial. Michael Wampler said he read the minutes and memo and he agreed that the notice should stay up through the hearing and if the hearing is continued the date should be posted on the notice because things were changing. True said that there would 2 PC - be a change to the code that says there need not be any new notice or second notice and there would have to be an additional affidavit before every continued hearing that was re-posted; again there wasn't that significant a problem and it was a legitimate request on this commission's part. Stan Gibbs asked what was the point of "the best of the applicant's ability". True replied that was a comment that Jennifer made at the meeting saying that we would not require a new affidavit saying it had been up that would be their best efforts to keep it up throughout the process; she did not want notices to disappear and applicants not necessarily know that the notice was gone and have somebody come in a say the process is defective because it was not up. Gibbs said that they understand that there is some room but it was like saying you have to stop at a stop sign to the best of your ability; laws were not written that way. True stated that you were just trying not to create a situation where somebody says the process was defective or you make a requirement then there needs to be affidavits. Dina Bloom said that Jennifer made it clear that in other communities there have been problems of signs that did not stay throughout and then the process would stop and she did not want that to happen here so "the best of the applicant's ability" makes sense. LJ Erspamer asked the consequences if the sign does fall down and the applicant does an affidavit that it was up. True said there was a risk that somebody says that you have to re-notice and start over or get a continued hearing. Chris Bendon said that they prefer "to the best of the applicant's ability" because often times Council will continue a public hearing to the next night. Bendon noted that in the winter, especially this winter, signs get piled up with snow piles. Gibbs said that "the best of the applicant's ability" made sense after the discussions; more affidavits make it difficult. Gibbs stated the posting should be continue throughout the process with "continuing from time to time" and the best of the applicant's ability" to keep it visible to the public was good enough. Erspamer asked if an affidavit was needed to change or add the dates of the meetings. True responded that the situation of continuation to the next day or continuation for a week had to be addressed. Erspamer asked if this commission put something together where they recommend some ideas or some thoughts on this issue to think about and address. True said that Council will make this determination; this was a recommendation, it was a resolution recommending something to Council. 3 ~-. J PC - Bendon noted there was no place in the code that said after so many continuances the public hearing had to be re-noticed. Gibbs asked if P&Z should recommend something like that to Council. Bendon replied that would be easier to administer then deciding on an arbitrary basis when you need to re-notice. True said an applicant has the ability to request a continuance and after that it was more discretionary with Council; it is just discretionary to re-notice. True said that it can be written that if the hearing is continued more than "x" period of time it will be re-noticed. Erspamer asked if on the other part of the noticing it was name, address or email. True stated that he re-wrote based on what the group was most interested in was name and either a mailing address of the applicant or a phone number or email address of applicant or the representative. Erspamer said that this was a public notice and people should have the right to know and comment to a contact on the project and he thought email should not be the only contact; there should be a phone number of a representative somewhere. Cliff Weiss requested the mailing address be required and the other two were optional (phone number or email). Michael Wampler said that in 5 years people would not be mailing anything; this was a band aid; email was the future not snail mail. Brain Speck noted that sometimes email goes through spam filtering and you don't get it. Erspamer asked either/or; and/or; or just require all 3. Gibbs agreed with what Dylan had to say that some people just don't want their phone number out there; it was a reasonable compromise to the have mailing address as a requirement but the phone or email should be the applicant's choice, which one they want to provide. Gibbs said that snail mail will actually only go away when you can actually verify the receipt of an email; until certified mail can be replaced reliably. True reiterated that the mailing address was required and the mailing address and either the phone number or email for the applicant or the applicant's representative. PUBLIC COMMENTS: 1. Toni Kronberg thanked John Worcester and Jim True for taking on this issue; the content was important because as a member of the public we don't care about the mailing address we care about the address of the development application. Kronberg said that the person to contact was in Community Development and included on the notice; email was not legally recognized by the state statute as a form of communication because there was no way of knowing if someone has received that notice that was the purpose for mailing certified. Kronberg said the Council notice and said that the public notice has to stay through the public hearing; she suggested a 7 day time frame be changed for continued hearings. Kronberg said that she has never seen a notice intentionally taken down. 4 .~ es -February 19. 2008 2. Gideon Kaufman said that the number one way somebody opposes a project is on notice because that was the most strictly construed way to oppose a project; he has had signs disappear when people want to find a way to challenge a project. Kaufman said that if you don't have language "to the best of someone's ability" you are opening them up to have a situation that someone takes the sign. Kaufman said neighbors don't like the signs because they don't think they are very attractive also when you constantly continue a hearing that means you have to change the sign every 2 weeks, every month, that becomes a real burden and it is not that simple. Kaufman said the bottom line was that you are going to follow up on it. MOTION: Stan Gibbs moved to approve Resolution #007-08 as amended in the discussion to include the mailing address and either the phone number or email of the applicant or its representative and the applicant shall maintain this notice on the property throughout the hearing and continuances to the best of the applicant's ability; seconded by Michael Wampler. Roll call: Bloom, yes; Speck, yes; Weiss, yes; Wampler, yes; Gibbs, yes; Erspamer, yes. All in favor approved 6-0. The commission requested Council consider placing a date deadline for continued meetings and re-noticing. PUBLIC HEARING: CODE AMENDMENT REGARDING NON-CONFORMITIES LJ Erspamer opened the public hearing for non-conformities. Jason Lasser said that Alice Davis represented Gary and Laura Lauder. Lasser provided the history of these mandatory occupancy units which was before the Telluride decision that talked about privately owned rental housing that can't be required to be deed- restricted because it was considered rent control and that was a decision that made the City of Aspen change the way that they do things. APCHA now controls that an ADU or Carriage House has to be deed-restricted for sale and run through APCHA, which clears up the rental issue decided in the Telluride case. Lasser stated that what they were talking about today were mandatory occupancy units to clear up the language in the code. Lasser read the definition of non- conforming structure: a structure which was originally constructed in conformity with the zoning and building codes or ordinances in effect at the time of this development which no longer conforms to dimensional or other requirements by the title to the zone in which it is located. Lasser said because of code changes the property could have more FAR than it was allowed with the new code so technically it's non-conforming. Lasser said the code amendment in 2004 was that the Lauder's wanted to expand and propose changes to the code and staff did not 5 ~J .~ Planning & ZOning Commission Meeting Minutes - recommend approval and P&Z voted no for those code changes but Council approved that through Ordinance 35 and it was codified and in the code now. Staff was going to eliminate a general section making historic structures the first exception and mandatory occupancy for accessory dwelling units and carriage houses the second extension in the non-conforming structures and extensions section of the code; that cleans up the language so it is easier to read going through "A" (procedure) and "B" (review standards) and "B1" (maximum cumulative 500 square foot of floor area from historic transferable development rights or extinguishing unused floor area from other properties). Staff recommended approval. Gideon Kaufman introduced Alice Davis from Davis Horn Planning. Kaufinan said they were just cleaning up the language with no substantive issues or changes. Michael Wampler asked for clarification on the 500 feet coming from the house, Kaufman replied there were 2 options (1) purchase a historic TDR or (2) go to another free-market property in the City of Aspen and take the square footage off of that property and put it into a mandatory occupied ADU. No public comments. MOTION: Michael Wampler moved to approve Resolution #10-OS finding that the application for the code text amendments meets the applicable standards of review; seconded by Stan Gibbs. Roll call vote: Speck, yes; Bloom, yes; Wampler, yes; Gibbs, yes; Weiss, yes; Erspamer, yes. All in favor APPROVED 6-0. Discussion: Stan Gibbs asked what the difference was with an ADU and Carriage House. Kaufman replied that they are now referenced the same way (page 35 defines it the same way). Lasser stated it was basically a square footage issue; the carriage house was 800 to 1200 square foot and ADU was 300 to 800 square foot. CONTINUED PUBLIC HEARING: ASPEN CLUB CONCEPTUAL SPECIFICALLY PLANNED AREA LJ Erspamer opened the continued public hearing on the Aspen Club. Chris Bendon recused himself from the public hearing. LJ Erspamer stated that he organized the 3 groups that built the ARC; it didn't have the weight room or the aerobics room. Jessica Garrow mentioned 3 letters from neighbors in the packet and another letter from Peter C Meining added. Garrow noted there was a site visit at noon. Garrow 6 ~s -February 1 said that on March 4`h the issues of transportation, parking, factional unit components, the lock off scenarios, affordable housing as well as more depth in the architecture; tonight would be a conversation of the area and proposed site plan. Garrow provided a brief history beginning with appendix b exhibit 1, an overview of the original subdivision approved in 1976 with 161ots; lot 15 was where the club currently sits; lot 14A was designated a parking facility, across the river from lot 15, the club was access from that parking area via a walkway that goes over the river; lot 14 was intended to be a club facility. The club was built in 1977 and throughout the 70s and 80s there were some changes to the PUD that allowed an increase to the size of the club and also changed lot 14 into a single family lot; in the 1980s and 90s the owner, Dick Buetera, amended the PUD a number of times again and split lot 14 into 2 single family homes. Also at this time parking was added to lot 15 and the primary access to the club was moved to Ute Avenue instead of from Highway 82. Garrow said that lot 15 was zoned rural residential with a PUD overlay; lot 16 (the Benedict Building) was zoned rural residential with a PUD overlay and SPA overlay to allow commercial uses on the property; the rest of the subdivision is zoned R-15 PUD and includes single family homes and multi-family homes (Aspen Club Townhomes no relation to the club). The club currently includes 35 parking spaces on lot 14A, 56 spaces on lot 15, 5 outdoor tennis courts (1 under the bubble for winter use), the Aspen Club and Spa and an outdoor deck. There is an Aspen Club trail that traverses the property near the river and the 100 year flood plane is located immediately below the trail. Staff talked about benches; the upper bench contains the Aspen Club and the lower bench is essentially where the 4 tennis courts are located, which is proposed to be new fractional units. Garrow stated that the proposal retained the Aspen Club trail, it adds 12 affordable housing units, 19 timeshare units (13 of these timeshare units are stand alone townhouse units in 4 different structures and 6 are flats added on top of the existing building), a total of 42 parking spaces are proposed to be added to the current parking (133 spaces total with 35 spaces remaining on lot 14A and 98 spaces would be on lot 15). Garrow stated the reviews before the Planning Commission were all conceptual. Conceptual PUD, which allows changes to the dimensional requirements to the existing PUD, variances in 2 setbacks for the proposed affordable housing units, front yard setback requirement is 30 feet and this request is to amend that setback to 7 '/z feet and the east side yard the setback should be 20 feet and they are requesting to amend it to 3 feet. Conceptual Specially Planned Area (SPA) to permit the construction of affordable housing and timeshare units; an SPA enables a parcel to have different uses then are permitted in the underlying zoning. The third is Conceptual Timeshare review which is required when a timeshare 7 ~/ Aspen Planning & Zonine Commission MeetinE Minutes -February 19, 2008 development is proposed. Conceptual Commercial Design Review is required at conceptual and final level at anytime a commercial or lodge project is proposed; this has a lodge component so therefore a commercial design review is required. Staff determined that this project should go through the small lodges area review because this is in a residential area. Staff is supportive of this general concept of healthy living facility and was a different exciting use and would be a good amenity for the community. There were some concerns regarding the architecture, transportation and parking elements, which will be discussed at the next meeting in more detail. Cliff Weiss asked for the terms of the Butera agreement. Sunny Vann replied the agreement was in the appendix. Garrow explained some of the exhibits in the application; the 1980 approvals permit the use of the Ute Avenue entrance. Sunny Vann introduced Chris Wright and Richard DeCampo from Poss Architects. Chris Wright identified the context of the neighborhood with a handout of drawings that shaped the project; he said that the neighborhood was pretty eclectic. Erspamer asked the lot size of the adjacent parcels. Garrow responded that she would get them for the next meeting. Richard DeCampo utilized the board drawings and the handout of drawings to show the different parts of the 5 acre site with the existing building and the access from Ute Avenue. DeCampo utilized sheet 2 from the packet to show the property line and setbacks, some setbacks were determined by the stream margin review criteria and the 100 year flood plane which was below the trail. DeCampo said that the proposed buildings were setback and there was a sewer easement through the property. DeCampo noted there had to be emergency access and the biggest were the fire department trucks. DeCampo said there were just a couple of places that could be developed because of site constraints. Erspamer asked if the hammerhead turnaround was big enough for emergency vehicles. DeCampo replied that if you don't go too far into the site that you were allowed to pull something in and back out to a turning radius. Vann showed more pavement for the access. Erspamer asked about the setbacks. DeCampo replied that the front yard setback was 30 feet and they were asking for 7 1/2 feet and a side yard was 20 feet and they were asking for 3 feet; if you look at the site for the surrounding area you are quite far back from the public areas. Stan Gibbs asked if they were cutting the corner of the building. DeCampo replied that was correct. 8 ,~-, ~- Aspen Planning & ZOning Commission Meeting Minutes -February 19, 2008 Vann said the only setback variance requests were those 2 setback points for the affordable housing and could be done within the setbacks themselves but it would significantly reduce the amount of housing that could be placed on the site. Vann said that backing up to the Silver Lining Ranch had no adverse impacts. Cliff Weiss asked how many parking spaces were there for the affordable housing. Vann replied the affordable housing parking spaces were based on the code at 1 per unit and they are providing those 12 spaces in the sub-grade garage to discourage the use of the vehicles, which would be a place to store the vehicles; there were 5 spaces in front of the affordable housing units which will be signed for temporary drop off or a timed period. Michael Wampler asked with the exception of those spaces if all the rest of the new parking would be underground. Erspamer asked about parking design. Vann replied the site design was why the parking was where it was. Vann reiterated what Jessica had said about the parking and added that Butera made a pitch that the parking was insufficient for the operation of a facility like that yet Council restricted and reduced the amount of parking as an attempt to limit vehicular traffic in the neighborhood. Vann said what was there today in parking spaces were 56 in the surface parking lot and 35 across the river; the new proposal the fractional ownership units require % space for each unit, all of these units have lock-outs with a total of 38 keys so the code requires 19 spaces that will be located in the sub-grade garage. Vann said the surface lot would be reduced to 40 parking spaces and changing the way it is laid out to improve circulation; the sub-grade garage includes 22 spaces for the club. Vann stated there were a total of 133 spaces with 53 spaces in the garage. Erspamer asked for the location of the hydrants. Vann replied that they were in the application on the improvement survey. Chris Wright said that Michael Fox was trying to create a project that addresses spending time together as a family and extended family; creating spaces from a building program by which an extended family can vacation together and spend time and take advantage of the opportunities that the Aspen Club has to offer. Wright said that our society was changing with people living longer and finding the opportunities to travel together; that was a big component to create a building program that allows this kind of activity to take place. Wright said there were a lot of different activities that this property has to accommodate. Wright said that they were approaching this on sustainability on a lot of different levels; sustainability in terms of energy usage to upgrade the existing building; the use of ground source geothermal, solar voltaic and a mixture of things to get the most efficient system that they can. Wright said the other aspect of sustainability was the construction of these units, the units themselves being energy efficient, the type of materials, the 9 ~_ quality of life, the quality of daylight and use of the site. Wright said there were constraints to this site and the next phase was to work with the topography of the site with the two benches on the site. Wright noted that they were sensitive to the area and applied for LEEDS development and they are in the pilot program because they are taking a site that is developed and they are recycling the site. Weiss asked how many apartments (flats) there were. Vann replied there were 6; 4 on the upper level. Erspamer asked if the growth management was on a point system. Garrow replied this would potentially play into the point system when they get to the growth management application; they will need growth management allotments for the affordable housing units after conceptual; the earliest would be August or this time next year. Erspamer asked if LEEDS was a requirement. Garrow responded that it was a way to get points in the competition for growth management allotments. Garrow presented the "sketch up" model of the project; the immediate context was used; the model was generated from wire frames taken from the 2004 fly over for the GIS Department. The wire frames are accurate with respect to height and grade that used 2 foot contours. MOTION: Cliff Weiss moved to continue the Aspen Club Conceptual SPA, PUD, Timeshare and Commercial Design Review to March 4`"; seconded by Brian Speck. All in favor APPROVED. Jackie Lothian, Deputy City Clerk 10 RESOLUTION No. 010 (Series of 2008) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, 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: 26.312.030 - NONCONFORMING STRUCTURES -MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous amendments to Section 26.312.030 submitted by the Lauders were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clarify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor area on properties with a mandatory occupancy accessory dwelling unit and which are legally established nonconformities with respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public hearing on February 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a six to zero vote; and, WHEREAS, the Aspen Planning and Zoning Commission fords that the amendments meet or exceed all applicable standazds pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen Planning and Zoning Comrission finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030.Nonconforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. r ~..:. ,-. C. Extensions. A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconfomrity. 1. Historic structures. The first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yazd and rear yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlargement does not exceed the allowable floor azea of the existing structure by more than five hundred (500) squaze feet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.415. 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The second exception to this requirement shall be for a property with a detached Accessory Dwelling Unit or Carriage House ("ADU") having a mandatory occupancy requirement. Such a detached ADU may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU and also provided that the ADU does not exceed the maximum size allowed for an ADU or carriage house. The enlazgement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. a) Procedure. The procedure for increasing the maximum floor azea of a property for the purpose of increasing the size of an ADU requires the submission of a development application. The development application shall be processed under Chapter 26.430, Special Review. b) Review Standards. An application for increasing the floor area of a property for the purpose of increasing the size of an ADU shall meet the standards in Section 26.520.050, Design Standards, unless otherwise approved pursuant to Section 26.520.080Special Review, as well as the following additiona] review standards: (1) Newly established floor area may increase the ADU up to a cumulative maximum of 500 sq. ft. of floor area and is required to be mitigated by either of the following two options. (a) Extinguishment of Historic Transferable Development Right Certificates ("certificate" or "certificates"). A property owner may increase the ADU by extinguishment of a maximum of two certificates with a transfer ratio of 250 sq. ft. of floor area per each certificate. Refer to Chapter 26.535 for the procedures for extinguishing certificates. (b) Extinguishment of unused floor area from another property. A property owner may increase the maximum floor azea of a property for the purpose of increasing the size of an ADU by extinguishment of a maximum of 500 squaze feet of available unbuilt floor area from one property to the ADU. (2) The additional floor azea is a conversion of existing square footage which was not previously counted in floor area. (Examp]e: storage space made habitable. or the additional floor area creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. ,r- '~`~ s, J (3) The additional floor area creates a unit which is more suitable for caretaker families. (4) The increased impacts from the lazger size are outweighed by the benefits of having a larger, more desirable ADU. (5) The area and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor area through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. (7) For the transfer of allowable floor area from a nonhistorically designated property to an ADU deed-restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declazed unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore. 1. Nonpurposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regazds to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Densit}i'oi~ a substandazd parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single-family floor azea requirements. (Ord. No. 1-2002, § 6 [part]; Ord. No. 9-2002, § 5; Ord. No. 35-2004, § 1) Section 2: A public hearing on the Resolution shall be held on the 19th day of February, 2008, at 4:30 p.m. in the Sister Cities Room, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a \.4 ~ --~, r public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 3: This Resolution shall not effect/affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 19~' day of February, 2008. APPROVED AS TO FORM: ~----- JimTrue, Special Counsel LJ ATTEST: CLlJ ckie Lothian, Deputy City Clerk ZONING COMMISSION: r~l- ATTACHMENT? AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: ~~E!~ r~j' /~~ l,LaQ' , Asyen, CO SCHEDULED PUBLIC HEARING DATE: ~ {'SPA r9 , 200 STATE OF COLORADO ) ss. County of Pitkin ) I, lC,~t/6~~jC.(i. ~GO~G `/ (name, please print) being or represe~ing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner. ~/ Publication of notice: By the publication in the legal notice section of an official ~ paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the day of 200_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (I S) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public heazing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (IS) days prior to the public hearing on such amendments. Signatw~ The f •egoing "Affidavit of NotirceJ" was acknowledged before me this '1 ~ day bf _, 200~> by ~~^P ~C~ /--e...~/ i ~' • Pueuc NorlcE WITNESS MY HAND AND OFFICIAL SEAL RE: GTy 1 ITIATED AMENDMENTS TO CHAPTER 26.312 OF THE LAND USE CODE Thal Mons 10 nonl 26.312 "Nar amentlmenis expires: - l~'~~U Marv Publie Jason Lasser al the velopment Depart Ispen, CO, (970) y Dylan Johna, chair Aspen Planning antl Zoning Commission Publishetl in the Aspen Times Weekly on February 9, 20he. 11116292) ATTACHMENTS: COPYOF THE PUBLICATION PHOTOGRAPH OF THE POSTED NOTICE (SIGN) YO\ y C ,~ ~~t i-t S f M1 ~ 1 1 ~xr. r ~`J'1 r4 _J1 ~ LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BYMAIL ,-, - ~.. ,~ ~ MEMORANDUM TO: Aspen Planning and Zoning Commissiou FROM: Jason Lasser, Special Projects Planner ~' THRU: Jennifer Phelan, Community Development Deputy Director;`/~ MEETING DATE: February 19, 2008 RE: Code Amendments to Section 26.312.030 (C) -Nonconforming Structures -Resolution No. ~Q Series 2008 -Public Hearine SUMMARY: Alice Davis, on behalf of the Lauder family, has submitted a number of text amendments with regard to the nonconformities chapter of the Land Use Code as it relates to a code amendment submitted on behalf of the Lauders in 2004 (Ord. No. 35). The City sponsorship allows the Amendment to be processed outside of the biannual dates typically required. Staff has worked with the applicant to clarify the language of the original Ordinance. LAND USE REQUESTS AND REVIEW PROCEDURES: The City is requesting the following from the Planning and Zoning Commission: • Determination if application to amend code text meets Standards of Review, pursuant to Land Use Code Chapter 26.310.040 Standards of Review. A noticed public hearing on a text amendment is held before the Planning and Zoning Commission so that a recommendation can be provided by the Commission to the City Council. Final decision is by the City Council. APPLICANT' Alice Davis, Davis Horn Inc. and Gideon Kaufman, Kaufman Peterson Attorneys, representing beonard-Lauder, property owner and Chris and Lynn Seeman, ADU occupants. GAr a-(raven )~REVIOUS ACTION: The Planning and Zoning Commission reviewed an amendment to the non-conformities chapter of the Land Use Code in 2004 and recommended denial at a public hearing on October 5, 2004. The City Council approved Ordinance #35, Series of 2004, on November 22, 2004, allowing for amendments to the Non-conformities chapter of the Land Use Code. The amendment allowed a property that was legally establiched and non-conforming with regard to floor area (over maximum allowable~l to add up to 500 square feet of floor azea to an ADU. Page 1 of 3 ~' ~i BACKGROUND' The Lauder residence and ADU were built in compliance with the City's Floor Area code, which has since been amended. The former code granted two floor azea bonuses for Accessory Dwelling Units. Fifty percent of an ADU's floor area was exempt if the ADU structure was detached from the primary residence and another 50% was exempt if the ADU was deed restricted to mandatory occupancy. Together, a 100% exemption was available for an ADU that was both detached and mandatory occupancy. The Lauder ADU qualified for this 100 exemption and the primary house was developed to the maximum size considering the bonus. During the period of this mandatory occupancy floor area bonus, three ADU's were developed with a mandatory occupancy restriction. The City experienced significant difficulty in administering the mandatory occupancy and, in 2001, decided to remove this option from the code altogether. The ADU code was amended to require ADUs be detached to gain a growth management exemption for the primary residence and the floor area exemption was retooled to provide a 100% exemption only if the ADU was condominiumized and sold to a local working resident through the Housing Authority's Guidelines. The program allows the property owner to choose the first purchaser, as long as that person qualifies through the Housing Guidelines. At the same time as eliminating the mandatory occupancy bonus, the City amended the code to provide a process of removing the mandatory occupancy restriction from an existing ADU through a landowner provision of either anoff-site deed restricted unit or a cash-in-lieu payment equal to the mazket value of the bonus area. This was done in response to a landowner with a mandatory occupancy ADU. The City's code amendment in 2001 made the Lauder property a "legally created non- conformity." Specifically, the Lauder ADU no longer qualified for a floor azea exemption and the property contained too much floor area. The City's non-conforming regulations allow legally created non-conformities to exist in perpetuity, but prohibit expansions of the non-conformity. (i.e. a house that is over it's floor area cannot be added on to.) The Lauder ADU is a one-floor unit developed. over a storage basement that was also exempt from the calculation of floor azea. The storage area was purposely developed as non-inhabitable space (no window wells) to maintain its being exempt from floor area. Basement levels count towazds floor area proportionately to the extent they aze exposed. Window wells increase the exposure and require more of the basement level to count towazds the property's total Floor Area allowance. Prior to the initial Code Amendment request in 2004, a building permit to install window wells in the ADU structure was submitted to the Building Department and denied due to a lack of floor area. The improvements were built without a permit and the construction was "red tagged" by the Building Department. The improvements were then removed and the property returned to its previous condition. An application to amend the Non-conformities chapter of the Land Use Code was submitted in 2004 requesting modifications to the nonconforming structures section with regard to extensions and ADUs and Carriage Houses. Public hearings followed at both Planning and Zoning and City Council. As a result, Ordinance No. 35 (Series of 2004) was passed. Page2of3 (~ ~ .,~ In March 2007, the City was approached by Alice Davis and Gideon Kaufman to discuss the possibility of acting upon the approved language of Ord. #35, Series of 2004. Staff and the applicant representatives have worked to clarify the language which is applicable to only one mandatory occupancy unit (Lauder ADU). STAFF COMMENTS: Staff has enclosed a Resolution that demonstrates code text amendments using .'~~~•°m,ghs in red for removed text and underlined blue shading to denote new text. Each change, or set of related changes, is accompanied by a numbered red box in the left column. To understand the various code text amendments, it may be easiest to look through the Resolution identified as Exhibit B to see the exact code language changes -- while consulting the explanatory text below, which offers a rationale for each code text amendment, using the red boxes. SUMMARY OF THE PROPOSED RESOLUTION: The general allowances for non-conforming structures is now rolled in Section C, the exceptions to "C" are now formatted as a subsection of "C". Clarifies the current text by following a more logical format -that the increase in floor area is only available for ADUs with mandatory occupancy and then breaks the procedure and review standards into subsections. To increase floor area on a property, the application is reviewed as a special review application (requiring notice and hearing before the Planning and Zoning Commission). Additionally, the application must meet the design review standards for an ADU or carriage house and meet additional review standards in the non- conforming section. Most important is mitigating for the additional floor area via extinguishment of a TDR or un-built floor area from another property. Combines standards 1 and 2, eliminates standazd 5 (no variance from setbacks can be required), clazifies the standard for TDR extinguishment, and the final standard language has been modified to omit a square footage number from transfer from non-historic properties. RECOMMENDATION: Staff recommends approval of this application for various code text amendments to Section 26312.030 (C), Extensions RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Resolution No. _, Series of 2008, finding that the application for code text amendments meets the applicable Standards of Review." ATTACHMENTS: ExIIISIT A -Review Criteria and Staff findings EXHIBIT C -Color coded Resolution with proposed text amendments EXHIBIT B - 2004 Minutes - P+Z (Sept. 7, Oct 5), City Council (Nov. 22) Page 3 of 3 J RESOLUTION No. (Series of 2008) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, 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: 26.312.030 - NONCONFORMING STRUCTURES -MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous amendments to Section 26.312.030 submitted by the Lauders were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clarify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor area on properties with a mandatory occupancy accessory dwelling unit and which aze legally established nonconformities with respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public heazing on February 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standazds pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen Planning and Zoning Commission finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030.Nonconforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. a C. Extensions. A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. 1. Historic structures. The first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yard and rear yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlazgement does not exceed the allowable floor area of the existing structure by more than five hundred (500) square feet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.415. 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The second exception to this requirement shall be for a property with a detached Accessory Dwelling Unit or Carriage House ("ADU") having a mandatory occupancy requirement. Such a detached ADU may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU and also provided that the ADU does not exceed the maximum size allowed for an ADU or carriage house. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. a) Procedure. The procedure for increasing the maximum floor area of a property for the purpose of increasing the size of an ADU requires the submission of a development application. The development application shall be processed under Chapter 26.430, Special Review. b) Review Standards. An application for increasing the floor area of a property for the purpose of increasing the size of an ADU shall meet the standazds in Section 26.520.050, Design Standards, unless otherwise approved pursuant to Section 26.520.080Special Review, as well as the following additional review standards: (]) Newly established floor area may increase the ADU up to a cumulative maximum of 500 sq. fr. of floor area and is required to be mitigated by either of the following two options. (a) Extinguishment of Historic Transferable Development Right Certificates ("certificate" or "certificates"). A property owner may increase the ADU by extinguishment of a maximum of two certificates with a transfer ratio of 250 sq. ft. of floor area per each certificate. Refer to Chapter 26.535 for the procedures for extinguishing certificates. (b) Extinguishment of unused floor area from another property. A property owner may increase the maximum floor area of a property for the purpose of increasing the size of an ADU by extinguishment of a maximum of 500 square feet of available unbuilt floor area from one property to the ADU. (2) The additional floor area is a conversion of existing square footage which was not previously counted in floor area. (Example: storage space made habitable. or the additional floor area creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. ~~ (3) The additional floor area creates a unit which is more suitable for caretaker families. (4) The increased impacts from the larger size are outweighed by the benefits of having a larger, more desirable ADU. (5) The azea and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor area through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. (7) For the transfer of allowable floor area from a nonhistorically designated property to an ADU deed-restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore. 1. Nonpurposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Density on a substandard parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single-family floor area requirements. (Ord. No. 1-2002, § 6 [part]; Ord. No. 9-2002, § 5; Ord. No. 35-2004, § 1) Section 2: A public hearing on the Resolution shall be held on the 19th day of February, 2008, at 4:30 p.m. in the Sister Cities Room, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a .i public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 3: This Resolution shall not effect/affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this _ day of 2008. APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: JimTrue, Assistant City Attorney Dylan Johns, Chair ATTEST: Jackie Lothian, Deputy City Clerk ~. ..- EXHIBIT A Chapter 26.310 AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP Sec. 26.310.040. Standards of review. In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Findings: The proposed code amendments clarify the language, procedure and standards of the nonconforming structures section of the Land Use Code. The proposed changes eliminate confusing language disallowing variances for properties with bonus floor area, which created an inconsistency with the Variance Chapter of the Land Use Code. Staff finds this criterion to be met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. Staff Findings: Allowing for additional area in an Accessory Dwelling Unit to accommodate a family currently residing in the ADU is consistent with the AACP's goal to provide affordable housing. Staff finds this criterion to be met. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. Staff Findings: There were originally only two approved ADU's/Carriage Houses approved as a mandatory occupancy unit in the short period of time the legislation was in effect. One of these two ADU's has had it's restriction removed and the Seeman's live in the one mandatory occupancy unit remaining. The applicability of the legislation is quite narrow, therefore Staffftnds this criterion to be met. D. The effect of the proposed amendment on traffic generation and road safety. Staff Findings: The amendment will only affect one unit and family. Staff does not fmd this criterion to be applicable. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools and emergency medical facilities. 1wN'I Staff Findings i The amendment will only affect one unit and family. Staff does not End this criterion to be applicable. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Staff Findings: The amendment will only affect one unit and family. Staff does not find this criterion to be applicable. G. Whether the proposed amendment is consistent and compatible with the community character in the City. Staff Findings: The expansion of an existing ADU is consistent with the community character. Mass and scale can be reviewed through the development application process. Staff finds this criterion to be met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Findings: The expansion of the caretaker family (by one) has affected the subject parcel, requiring additional square footage for the changed condition. Staff Ends this criterion to be met. I. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Staff Findings: Because of the narrow scope of applicability for this amendment, and that the intent is to allow an existing family to remain in Aspen, Staff fords that the proposed amendment is in harmony with the purpose and intent of the Land Use Code. Staff finds this criterion to be met. ,-- ~. , ..., .a EXHIBIT B RESOLUTION No. _ (Series of 2008) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, 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: 26.312.030 - NONCONFORMING STRUCTURES -MEET APPLICABLE STANDARDS OF REVIEW. WHEREAS, previous amendments to Section 26.312.030 submitted by the Lauders were adopted in Ordinance 35, Series of 2004, but were not codified; and, WHEREAS, after meeting with the Lauder representatives, the Community Development Director requested that the representatives submit an amendment to the Land Use Code, pursuant to Chapter 26.208, to clarify the adopted language; and, WHEREAS, the requested amendment is to Section 26.312.030 C., Extensions, of the Land Use Code and would permit additional floor area on properties with a mandatory occupancy accessory dwelling unit and which are legally established nonconformities with respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed for approval, approval with conditions, or denial by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, during a duly noticed public hearing on February 19, 2008, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Nonconforming Structures, as described herein, by a vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen Planning and Zoning Commission finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. WHEREAS, the amendments to the Land Use Code are delineated as follows: Text being removed is strikethrough and red. T°-`''°~°° -°--~°-•°'''°°''° "''° ""°. Text being added is underlined and blue. Text being added looks like this. Text which is not highlighted is not affected; and, Page 1 of 5 `.. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION as follows: Section 1: Section 26.312.030 -Nonconforming Structures, shall read as follows: Sec. 26.312.030.Nonconformiug structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. ',--~;,~ar. A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. 1. Historic structures. The e~ly first exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yard and rear yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlazgement does not exceed the allowable floor azea of the existing structure by more than five hundred (500) square fcet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.415. 3 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The ertly second ether exception to this requirement shall be for a property with a detached Accessory Dwelling Unit (~j or Carriage House ("ADU") having a mandatory occupanc~guirement. Such a detached ADU ^- °° "^°°° °'^'^''•^° may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU-heese and also provided that the ADU er-saeeiage-Neese does not exceed the maximum size allowed for an ADU or carriage house. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required herein. ". r"..«.°.. ~c can n..,...,,,._, n..,°n:«,. 11«:... °..a r°....:°,.° LI^.,~°~ .,,,a c_,..,:..1 Page 2 of 5 r-, -~, ~.,, , T .J.1' A.....1.:1:~. a e.,F:«....:..6 .. LI:..~,...:,. T«.. «.. F.,«..l.le Tlo..el,.«. «e«t D:..6~ a) Procedure. The procedure for increasing the maximum floor area of a property for the purpose of increasint; the size of an ADU requires the submission of a development application. The development application shall be processed under Chapter 26.430, Special Review. h) Review Standards. An application for increasing the maximum floor area of a property for the moose of increasine the size of an ADU shall meet the f+t sFiteria standards in Section 26.520.050, Desi¢n Standards unless otherwise approved pursuant to Section 26.520.080, Special Review, ~~~- °-°° ~««- ° 'rnD --'°~ ''~ °° "°°'' pursxaaE~e as well as the following additional review sFiteFia standards: (1)Newly established floor area may increase the ADU up to a cumulative maximum of 500 sq. ft. of floor area and is required to be mitigated by either of the followine two options a)Extineuishment of Historic Transferable Development Rieht Certificates ("certificate" or "certificates"). A property owner may increase the ADU by extinguishment of a maximum of two certificates with a transfer ratio of 250 sg. ft. of floor area per each certificate. Refer to Chapter 26.535 for the procedures for extin ui~ shing certificates {b)Extinguishment of unused floor area from another property. A property owner may increase the maximwn floor area of a property for the purpose of increasine the size of an ADU by extinguishment of a maximum of 500 square feet of available unbuilt floor area from one property to the ADU. (-k~(2) The additional floor azea is a conversion of existing square footage which was not previously counted in floor area. (Example: storage space made habitable.) '''~ or the additional floor area creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU structure. (3~ S~ The additional floor area creates a unit which is more suitable for caretaker families. (-0j {~ The increased impacts from the larger size are outweighed by the benefits of having a lazger, more desirable ADU. (~ Page 3 of 5 ,--~ --~ .~ ((~ ~ The area and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (6) For the transfer of allowable floor area through the use of Historic Transferable Development Right Certificates, the certificates shall be extinguished pursuant to Chapter 26.535, Transferable Development Rights. /^/\ rl:..a.._:,. T......,.C ....l.l,. Tl....,1....«.....a D:..1. a.. :al. al... F1,.,..- 3E81~°{cP°txSl6kfi~-civ-vrzsi$g}HSI3dd--parSH@••a artr-co-vna~cOr~.~.~~~ LI:..a..~:,, v<......F ~.,l.le E8j ~ For the transfer of allowable floor area (399j-sc~ar~e-€eet from a nonhistorically designated property to an ADU deed- restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the mandatory occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafrer conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. Ability to restore. 1. Nonpurposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming structure replacement provisions. Density on a substandard parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single- family floor area requirements. (Ord. No. 1-2002, § 6 [part]; Ord. No. 9-2002, § 5; Ord. No. 35-2004, § 1) Section 2• A public hearing on the Resolution shall be held on the 19th day of February, 2008, at 4:30 p.m. in the Sister Cities Room, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Page 4 of 5 Section 3: ~.,. This Resolution shall not effect/affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein recommended, and the same shall be conducted and concluded under such prior ordinances. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this day of , 2008. APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: JimTrue, Assistant City Attorney Dylan Johns, Chair ATTEST: Jackie Lothian, Deputy City Clerk Page 5 of 5 G .~. _ _ exxt'si~r c oil and grease interceptor in the multi purpose room/kitchen..23,..The Applicant shall join any future improvement districts that are formed to completefuture Ciry approved improvements to the adjoining/ surrounding right-of--ways. 24. All exterior lighting shall meet the Ciry of Aspen Lighting code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting, as may be amended from time?o time: `2'3. ATl design, installation, and maintenance of the pool and spa must comply with the State of Colorado's "Swimming Pool and Mineral Bath Regulations. " Pool water shall be,draingd directly into the sanitary sewer and shallnot be drained into the storm sewer. 77te Applicant must have the Aspen Consolidated Sanitation District approve the drain size for the swimming pool and spa before installing them. 26. Each owner of an estate shall have an undivided interest in the common recreational areas. within the facility. 27. The Applicant shall pay the applicable school land dedication fees as determined by the Ciry afAspen Zoning Officer prior to building permit issuance. 28. AI(unsold timeshare unfits that are not M used by the Applicant for exchange, marketing or promotional purposes skald be made avatlable for short-term rent until purchased. This condition.shall be included in the PUD/Subdivision Agreement to be recorded in the Pitkin County Clerk and Recorder's Office. 29. Nothing in the timeshare documents shall prohibit short-term rentals or occupancy. It is the intent. of this condition that the non-deed restricted units shall be available for short-term. rental purposes when not occupied by the purchaser or- its guests or utilized for exchange programs. The Applicant shall submit timeshare docamenu to the City Attorney for review and approval prior to recording them at the ofjice of the Pitkin County Clerk and Recorder. 30. The Applicant shall maintain the option of signing up to two (2) on-street parking spaces adjacent to the Innsbruck Inn as short term. drop-offparking for guests checking in and checking out. If the Applicant chooses to sign up to two (2) on-street parking spaces as shorFterm drop-offparking, they may sign the spaces either on Main Street or South Second Street, S'eC071(~C(~, by Dylatt JOhnS. Roll call vote: Skadron, yes; Rowland, yes; Johns, yes; Kruger, no; Tygre yes. APPROVED 4-1 PUBLIC HEARING: L.Vlll: A1V1LPl L1VLL'1\1 ~ litt~~~vi~a~.a~a-aa~a~u ..i. ~- - -- Jasmine Tygre opened the public hearing for the TDR Code. Amendment; notice was provided. Joyce Allgaier explained that Gideon Kaufman presented this code amendment on behalf of the Lauder family. City Council requested per Gideon Kaufrnan this code amendment and after,the P&Z_review it, will go to Council. Allgaier stated the former code granted floor area bonuses for 50% for detached ADUs and another 50% for deed-restricted ADUs so m this situation{the ADU was 100% exempt from the floor area charge. The Lauder's built the main residence to the maximum floor area, Allgaier said after this. was built there was.a code, change that required ADUs to be detached and the..floor area exemption was revoked unless it were condominiumized and sold to a worktng resident. That was what made this property non-conforming; the Lauder property was a legally created non- conforming ADU. The applicant's wanted to convert the basement into livable. space. Staff identified 2 options that could exist where the Landers decreased the size of their house in order to add to the floor area of the ADU or deed-restrict and sell the ADU and neither option was being sought by the applicant at this time. .., ASPEN PLANNING & ZONING COMMISSION -Minutes Seutember 07, 2004 Staff did not recommend approval because it was unclear if the proposal was to allow only enough floor area to accommodate the expansion or that the TDR purchase would make up for the deficit. The proposal was for a by right system and staff felt it should be a special review to weigh in on each case-by-case scenario. Allgaier said there was the possibility of a number of applications but were not sure how many and would like to see the fledgling HPC TDRs get under way before adopting another TDR program. Gideon Kaufman, represents the proponent of this code amendment, said that a detached and deed-restricted ADU created floor area exemptions for the residence; the code changes created the non-conformity. Kaufinan said when the ADU was built there was a kitchen, bath, bedroom and living area and below grade there was an existing office, storage, mechanical and a full bathroom. Because it didn't have the required ventilation and light it didn't count in FAR. Kaufinan said it was probably the best ADU built in Aspen but they have tried to figure out how to accommodate the growing needs of a family. If 2 window wells were added for the required light and ventilation then the FAR counts and you cannot add FAR because it was non-conforming. Kaufman said that was why they came forward with the proposed code amendment to help these detached and mandatory rented ADU units; he disMbuted an amendment to the code amendment adding special review. These TDRs from free-market housing can only be transferred to an ADU and would only count for the amount of square footage added. Kaufman illustrated through photos and drawings the placement of the window wells. Kaufinan restated the floor area would be utilized from free-market to enhance Affordable Housing Program; it would be positive for the community. Jasmine Tygre inquired about the number of ADUs that would be affected by the code amendment. Kaufman said the size of the ADU has also increased and at special review P&Z would make the decision. Johns asked why the TDR part of this speak to the free-market and not tie into the Historic TDR program. Kaufinan replied the Historic TDR program means that a TDR can only come from a Historic structure; those TDRs are worth $100,000.00 to $150,000.00 per TDR, which makes sense because it is free-market value but if you increase an employee unit they don't want to pay those TDR prices. Tygre asked where these TDRs would come from that would be so much cheaper. Kaufman replied that there were a few properties and the. TDR would include deed-restrictions but Historic TDRs could not be used for this program. to ... __ ~,.e ASPEN PLANNING & ZONING COMMISSION -Minutes September 07, 2004 Steve Skadron asked how the TDR receiving property would be able to accept the TDR if it was built to what was at the time the maximum and now why would it be acceptable. Allgaier replied that was one of issues. Kaufman responded it was only for the affordable housing program and would not exceed what the code allowed for the ADU to be expanded up to. Tygre asked what the criteria would be cited. Kaufman replied the code for special review, compatibility with the neighborhood, impacts on water and sewer. Tygre stated that everything was in pieces and it was not clear what P&Z was to vote on; those criteria were not included. Kaufman answered it was referenced in the code. Tygre said she wanted all the pieces in front at the same time and how many properties were involved in this type of situation. Skadron asked the size of an ADU. Johns replied the size ranged from 300 to 900 square feet net livable. 'The commissioners voiced concern for the incomplete information bn the number of units that could be affected; the specific criteria for the special review; specific and detailed restrictions on the sending party, site specificity; the addition of dimensional requirements regarding the detached ADU and enforcement. The commissioners were concerned about the TDR program. MOTION: Steve Skadron moved to continue the public hearing for the 7DR Code Amendment to September 21, 2004; seconded by Ruth Kruger. APPROVED S-0. Meeting adjourned at 7:00 p.m. ckie Lothi ,Deputy City Clerk It ,,... •-, ~., ASPEN PLANNING & ZONING COMMISSION-Minutes -October O5, 2004 Ruth Kruger opened the regular meeting of the Aspen Planning & Zoning Commission in Sister Cities Meeting Room. Commissioners Brandon Marion, Ruth Kruger, Jack Johnson, John Rowland and Steve Skadron were present. Staff in attendance: David Hoefer, Assistant City Attorney; Chris Bendon, Chris Lee, James Lindt, Community Development; Jackie Lothian, Deputy City. Clerk. COMMENTS Ruth Kruger hoped this meeting would adjourn by 6:45 p.m. Kruger inquired about the new windows in the Elli's building and asked if they were historic or went through a historic review process. James Lindt will follow up on Ellis. MINUTES MOTION: Jack Johnson moved to approve the minutes from July 27, August 03rd, I1 `h and 17`x, September 7`h and 21s' 2004; seconded by Steve Skadron. Rowland, Johnson and Skadron approved the minutes, Motion Carried. DECLARATIONS OF CONFLICTS OF INTEREST None stated. CONTINUED PUBLIC HEARING (09/21/04): CODE AMENDMENT-TDR'S _ Ruth Kruger opened the continued public hearing on the Code Amendment; Chris Bendon noted this was a continued hearing from 9/2151. There were 5 members present for this hearing. Gideon Kaufrnan addressed the 2 items that concerned P&Z and placed suitable review by Planning & Zoning and staff. Kaufman raised questions regarding staff's interpretation that the only way to accomplish this was through the Historic TDR Program. Chris Bendon stated there was concern that this would take away from the Historic TDR Program, which has not yet been proven. Kaufman said this code amendment was for this particular unit because of code changes, which has made this anon-conforming unit so they cannot add 2 window wells to make the downstairs legally 2 bedrooms. Kaufman said their TDR code amendment was only used for employee housing; their TDR program enhances only affordable housing and doesn't have the same mark-up as the Historic TDR Program so they are not taking from that existing Historic TDR Program but they are creating a market from the surplus of free-market housing and converting it for the community. Kaufman said that each special review would go through P&Z for approval for each particular situation, which accomplishes a valuable community goal. Kaufrnan provided the criteria for P&Z to follow. 2 ~, ~...:.. ASPEN PLANNING & ZONING COIVIMY~SSYOIV=1V~inutes - bctober 0~ ~~bU4 Ruth Kruger asked where the TDR was coming from. Kaufinan replied that it was from afree-market house that did not want to.use all of the FAR allowed. Kruger reiterated that Kaufman was creating a new program (code amendment) .that would create sending sites that were not historic and opening the market for a larger opportunity taking FAR from afree-market house to an ADU.' Bendon re- stated concern for the demand and the Historic Program could leverage the TDRs. Jack Johnson asked if the code had never been changed would there have been sufficient FAR on this property to amend this ADU. Bendon answered no. Johnson asked if the transferred floor area must accommodate the extent of the non-conformity plus the expansion or if only just the floor area has been resolved. Bendon replied that Joyce covered the first meeting on this and P&Z addressed that question by saying that you should only cover the amount that is necessary to accommodate the actual expansion and should have to first cover the overage. Johnson asked the overage. Bendon answered it was 750 square feet. Johnson stated that was only created because the bonuses were taken away, correct. Bendon explained that between 1999 and 2002 where there were 2 bonuses for ADUs; one for detached ADUs that provided 50% bonus and the other was for mandatory occupancy. Bendon said there were 3 mandatory occupancy ADUs created and this was the only one occupied. Bendon said in 2002 the bonuses were taken away and the only way to ensure the 100% bonus was if the ADU was sold through the housing lottery system. Johnson asked by simply selling this ADU to the family that was living there was insufficient without a TDR. Bendon replied that was correct. Public Comments: Lynn and daughter, who live in this ADU, were present. Kaufman stated that when this unit was legally built it was mandatory rental. Kaufman stated that this code change would allow this ADU to expand and continue to house this fainity. Bob Staradoj, public, asked if there had ever been a case where an ADU on site has been sold. Bendon replied no; the community was looking,for the first one to be sold. Bendon added if the ADU were sold the property owner would gain a 100% of the FAR, which was exempt and the property owner gains an additional 50% FAR bonus. David Hoefer reiterated that the commission was not dealing with'a specific case for this code amendment. Bert Myrin, public, stated that the code that Jack acid Chris spoke about gave an incentive to the employee side and what was presented tonight was from the employee side not the owner side. Myrin reiterated what Chris stated for the bonuses. ,r ASPEN PLANNING & ZONING COMMISSION-Minutes -October 05.2004 John Rowland stated that he was in favor of this code change and the only negative aspect was administrative for staff; he said that staff could handle the. challenge. Steve Skadron shared John's thoughts considering the restrictions placed on the economics on the property and there was a viable argument for this but Skadron also shared Jack's concern of getting this done under the.current code rather than actually changing the code: Jack Johnson stated 3 issues: there were ways that this could be done for this family under the existing code; this code change was in the best interest for this applicant but not for the city and' voiced concerned about the TDR sending and receiving sites. Brandon Marion mirrored Jack's no vote because of the far- reaching effect on the entire city. Ruth Kruger asked how long the historic TDR program has been in existence and the number of applications to date. Bendon replied it has been in place for about 7 months and there was one application pending. Kruger said that the vote on this code change wouldn't diminish a program that wasn't being utilized. Kruger did not see a problem with this application and P&Z would look at each application for these types of situations. MOTION: Brandon Marion moved to approve Resolution #30, 2004 recommending approval of a code amendment to permit expansion of rion- conformingstructures; seconded by Steve Skadron. Roll call vote. Rowland, yes; Skadron, no; Johnson, no; Marion, no; Kruger,. yes. DENIED 3-2. Bendon asked the commission if there was a particular element of this code amendment that if it were different then you would support it. Marion replied he liked the concept of giving FAR to affordable housing but wanted a more comprehensive plan than the one presented. Johnson said it would have to be a last resort otherwise more big houses were being created and Johnson wanted the Historic TDR Program to prove itself prior to creating another TDR program. Chris Bendon introduced Chris Lee the new planner. PUBLIC HEARING: LOT 1 ODEN LOT SPLIT STREAM MARGIN REVIEW Ruth Kruger opened the public hearing for the Stream Margin Review for Lot of the Oden Lot Split. David Hoefer said that the notice was received and the requirements have been'met; the commission had jurisdiction to proceed. James Lindt stated that the Stream Margin Review was to determine the top of slope; Lot 4 ,-. ~-.. ~, ~ , Reeular Meeting Aspen City Council November 22, 2004 Council agreed to continue the list of design options to December 14`h. ORDINANCE #35, SERIES OF 2004 -Code Amendment Non- conforming Structures James Lindt, community development department, told Council this code amendment proposes a new TDR system to allow for transfer of allowable FAR in 500 square foot increments from properties that have excess FAR available to properties that have exceeded their allowable FAR but the TDRs would only be allowed for the expansion of ADUs or carriage houses. Lindt told Council staff does not support this code amendment. Staff feels this will take away from the demand side of the historic TDR system recently adopted by Council. Lindt noted this could be accomplished through the historic TDR system with some language changes, which language is presented in the staff memorandum. Council's options are to approve the ordinance as written with the creation ofnon-historic TDRs, or approve staff's recommended language using historic TDRs, or deny the code amendment. P&Z recommended denial of this code amendment. Gideon Kaufman, representing the applicant, told Council this code amendment would allow for a positive result for employee housing. Kaufman told Council this is about a caretaker unit approved and built. After the caretaker unit was built, there was a code amendment, which made the caretaker unit non-conforming as to FAR and eliminated any flexibility. The caretakers of this particular unit are a couple with two children. Kaufman showed pictures of the freestanding caretaker unit. Kaufrnan told Council in order to accommodate two bedrooms in the lower level, window wells are required. Installation of window wells changes the FAR. Kaufman said the TDR in this code amendment can only be used in an ADU; it cannot be used to expand a free market house. The staff's recommendation will not work as the existing historic TDR program is not allowed to expand ADUs. Historic TDRs are to be used to increase the size of free market units so the cost of historic TDRs will be higher. The proposed code amendment will help affordable housing in Aspen at no cost to the city. Kaufman told Council there were people here to testify in favor of this code amendment who had to leave before this public hearing. Mayor Klanderud opened the public hearing. 14 .~. _._.~~.._....._..4__ ._.__.__.... 4 ;' Regular Meeting Aspen Citv Council November 22, 2004 Dwayne Romero urged Council to support this TDR program. Romero said the sales price for historic TDRs would overwhelm this type of program; the historic TDRs are not economically viable for increasing the size of ADUs. Toni Kronberg said this is a creative way to keep families in town. Lynn, asked for the opportunity to make Aspen their home. Mayor Klanderud closed the public hearing. Councilman Semrau asked about selling the ADU to the occupants. Kaufman said then the owner of the property would lose control of their caretaker unit. Kaufrnan told Council this code amendment will apply to mandatory occupancy ADUs only. Mayor Klanderud said the free market house with the ADU got the full benefit of the code in place at the time. Mayor Klanderud said she feels the historic TDR would solve the problem. Kaufman said it is an economic issue. Mayor Klanderud stated she supports the goal the applicant is trying to achieve. Kaufman reiterated this TDR program is only going to ADUs, not free market houses. Councilwoman Richards the goal of making the basement livable and keeping a family in town is laudable. This is one of the only mandatory ADUs where the owner has not tried to get rid of that condition. Councilwoman Richards said she feels the free market house sizes in Aspen are too large and she would favor ways to use up FAR for free market structures. Councilwoman Richards said she has no problem with this code amendment as long as it is to the benefit of families staying in town. Lindt noted if this is mandatory occupancy only, it would apply to 2 units in the city. Councilman Torre asked if there will be value added to this property by converting a two bedroom ADU to a three bedroom house. Kaufman said this mandatory ADU is right next to the main house and the benefit is having employees close and allowing that family to grow. This would allow community housing. Councilman Torre said the owners of the property will see an increase in the value of their structures. Mayor Klanderud said she supports the goal in this code amendment; however, she is concerned that this is an exception for 2 or 3 properties. Also this code amendment could have broad implications unknown at this time. Mayor Klanderud stated she could support staff's recommendation incorporating the historic TDRs. This would dilute the benefit of historic properties. 15 t~..,i Regular Meeting Asnen City Council November 22, 2004 Councilwoman Richards moved to adopt Ordinance #35, Series of 2004, amending it allow mandatory occupancy only ADUs to take advantage of either a historic TDR or a transfer of FAR from a free market lot; seconded by Councilman Paulson. Councilwoman Richards said this is a very limited in scope and a subset type of growth in the city's code. This may make more ADUs used and livable in the future. Councilwoman Richards noted the city eliminated mandatory occupancy of ADUs in the code because no one was building these units. Developers preferred payment-in-lieu. Councilwoman Richards stated it is worth rewarding someone who is not asking to get out from their mandatory occupancy ADU. Councilwoman Richards amended her motion to include to the maximum allowable FAR for an ADU or a maximum of 500 fee for a TDR; seconded by Councilman Paulson. Roll call vote; Councilmembers Torre, yes; Paulson, yes; Richards, yes; Semrau, no; Mayor Klanderud, no. Motion carried. ORDINANCE #36. SERIES OF 2004 -Chart House GMQS Allocation James Lindt, community development department, told Council this ordinance grants a growth management allocation to the Chart House for 11 tourist accommodations. The applicants originally took the project to P&Z for growth management scoring before conceptual PUD. P&Z did not give it a passing score because it did not have conceptual PUD approval. After that review, P&Z rescored the application and granted a passing score. Council may accept the score, amend the score or remand it back to P&Z. Lindt noted P&Z acted appropriately and scored this under the land use code. Staff reports there are enough tourist accommodation available. S[aff recommends allocating 11 growth management quota contingent upon receiving final PUD approval. Stan Clauson, representing the applicant, reminded Council they granted conceptual approval October 23'x. When P&Z reviewed this, they gave above threshold scores in all categories. Clauson stated this project will go back to P&Z and to Council for final review. 16 i ~ ~ ~~ v ~, , ~ ~~ ~ . , _; ~ :C ~.l~x r ~ . ~ 1;'~ -'-.~i "lii P ~o N ~ ~ y 4 ~ ^ 7i V ~ ~ ? p G Q O i•' ~I~ l ` i ~ I V ~I p Q W ~ 1' V ~ O o O ~~ ~i ry ~ y/ ~ a, p§V( .np ^ U n -- O O JpppCppT~~~ ((N. P ~ ~ ~ '/ +i ~ ~ ~~ . ft m Q V P m 6' 6' ~O d5 I~ ~ P I > r a ~ ~+ V1 a N ~ N • ~~~ ~ ~ ~ Cp J ~ ~ ~ ~£~~~ goZ~a ~ ~ ~~~w~~~ uu~~ ~~~JJJl,J www~ o^ W $ VQ Q y W 9 j~ r1 W~ V~ 2 2~ ~~ r~ w w W W ^~ p O y f~ V U1 r 4 °~ ~ 4~ r~Cy~1~ aV' ~F zQ V ff7LL ~ ~~...4 KK KKC p22~ W g ¢ U ~~ ILL LL OS Q n 2 IL m 'L W 1 C VI 0 Q V Vl N V1 U1 V1 Vl V1 6 Q~ d' .. > Q Q l7 • n 5. ~ ~ ..._ .. _._._._._....__.__ w _ ;: ~ r ~ 4 U 4~:a E .s.. ~ 4 _ i a ~ ~ '~~,~~.~ 9. _ n .9 ri o . a ' A~~~ ~ M.X, F ~ J' _ ; , ~ A v t ~~ r s ~/ r~' ti. 1 %- .. t ?'..~' 3% I~ f -. . ~ . ~ o Davis Horn~- PLANNING & REAL ESTATE CONSULTING October 1. 2007 Jason Lasser Chris I3cndon City of Aspen Community Development Department 130 S. Galena Street Aspen, CO. 8161 1 RE: City Sponsored Code Amendment for Section 26.312.030 (C) Dear Jason and Chris: Attached is a copy of the proposed language for the Code Amendment you have reviewed and changed for the Non-Conforming Structures section of the Code. Thank you for agreeing to the City sponsoring the Code amendment so that we can avoid the bi-annual dates for privately sponsored Code amendment submission. Also attached is a memorandum for you to use in your preparation of the memo for the Planning and Zoning Commission and City Council. Please call if you have any other questions or concerns or if we can help in any way. As we mentioned last week, to prevent spending time and money unnecessarily, we will wait to submit the Seeman (Lauder's caretakers) application pertaining to this Code amendment until we see if the amendment is approved or when it is close to approval. Thank }~ou again for sponsoring this Code amendment. We are hoping the process can be expedited as you have suggested may be a possibility. We are requesting that the Code Amendment be on the P&Z agenda for November 6, 2007 and if possible, scheduled for the City Council meeting on November 26`h along with another Code Amendment scheduled for that night. Thant: you for your assistance with this matter. Sincerely, DAMS HORN IIttCORPORATED ~~ ~,~ RECEIVED [ i l ~ 1.1 ~~ L~~ 1 AL[CE DAV[S AICP CITY OF ASPEN COMMUNfTY DEVELOPMENT ALICE DAVIS AICP S GLENN HORN AICP 21 5 SOUTH MONARCH ST. • SUITE 104 • ASPEN, COLORADO 8161 1 •970, 925-6587 • FAX: 970 925-5180 adavisfu~rof.net ghorn(~crof.net Chapter 26.312 NONCONFORMITIES Sections: 26.312.010 Purpose. 26.312.020 Nonconforming uses. 26.312.030 Nonconforming structures. 26.312.040 Nonconforming accessory uses and accessory structures. 26.312.050 Nonconforming lots of record. 26.312.060 Lot reduction. LJ 26.312.010 Purpose. Within the zone districts established by this Title, there exist uses of land, buildings and structures that were lawfully established before this Title was adopted or amended which would be in violation ofthe terms and requirements of this Title. The purpose of this Chapter is to regulate and limit the continued existence of those uses, buildings, and structures that do not conform to the provisions of this Title as amended. It is the intent of this Chapter to permit nonconformities to continue, but not to allow nonconformities to be enlarged or expanded. The provisions of this Chapter are designed to curtail substantial investment in nonconformities in order to preserve the integrity of the zone districts and the other provisions of this Title but should not be construed as an abatement provision. 26.312.020 Nonconforming uses. A. Authority to continue. Nonconforming uses of land or structures may continue in accordance with the provisions of this Chapter and this section. B. Normal maintenance. Normal maintenance may be performed upon non-conforming uses of land and structures, provided that the maintenance performed within any twelve (12) consecutive month period does not exceed ten percent (10%) of the current replacement cost of the structure. C. Extensions/Expansions. Nonconforming uses shall not be extended or expanded. This prohibition shall be construed so as to prevent: 1. Enlargement of nonconforming use by increasing the area within a structure in which such nonconforming uses are located; or 2. Occupancy of additional lands; or, 3. Increasing the size, considering all dimensions, of a structure in which a nonconforming use is located. City of Aspen Land Use Code. June, 2005 Part 300, Page 24 • D. Relocation. A structure housing a nonconforming use may not be moved to another location on or off the parcel of land on which it is located, unless the use thereafter shall conform to the limitations of the zone district into which it is moved. E. Change in use. A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the zone district in which it is located. F. Abandonment or discontinuance. The intent of the owner notwithstanding, where a nonconforming use of land or nonconforming use of structure is discontinued or abandoned for twelve (12) consecutive months, then such use may not be reestablished or resumed, and any subsequent use must conform to the provisions of this Title. G. Demolition or destruction Ability to restore. Any nonconforming use not associated with a structure may not be restored after discontinuance period of more than thirty (30) days. Any nonconforming use located in a structure which is purposefully demolished, pursuant to the definition of Demolition, may not be continued or restored. Any nonconforming use located in a structure which is purposefully partially demolished, pursuant to the definition of Partial Demolition, may be restored as of right within twelve (12) months of the date of partial demolition. 2. Non-willful destruction. Any nonconforming use which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner maybe restored as of right, regardless of the extent of demolition or destruction, if a building permit for reconstruction is issued within twelve (12) months of the date of demolition or destruction. (Ord. No. 55-2000, §§ 2, 3) 26.312.030 Nonconforming structures. A. Autl:oriry to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may be performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. General. A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. -i-~ r~ ~;f Historic structures. The only exception to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures maybe extended into front yard, side yard and rear yard setbacks, may be extended into the minimum distance City of Aspen Land Use Code. June, 2005. Part 300, Page 25 • between buildings on a lot and may be enlarged, provided, however, such enlargement does not exceed the allowable floor area of the existing structure by more than five hundred (500) square feet, complies with all other requirements of this Title, and receives development review approval as required by Chapter 26.415. ~ ran t„( 5 e ~ ~~~~~~~~ 3. Accesso~ Dwelling Units and Carriage Houses. The only other exception to this regrf irement shall be for a property with a detached accessory dwelling unit ''j or Carriage Houser Such a detached ADU or Carriage House structure may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU or Carriage House and also provided that the ADU or Carriage House does not exceed the maximum size allowed for an ADU or Carriage House. The enlargement or expansion must comply with all other requirements of this Title, and shall receive development review approval as required by 26.520, Accessory Dwelling Units, and Special Review approval pursuant to Section 26.430. The 500 square foot floor area expansion may be allowed if the unit complies with the review criteria and standards of the Aspen Land Use Regulations Sections 26.520 including, but not limited to, a finding that the expansion shall be compatible with the character of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated. Only the floor area which will increase the ADU or Carriage House beyond the legally created non-conforming floor area (the expansion floor area) is required to be mitigated. If the impacts of the expanded use cannot be sufficiently mitigated otherwise, an additional method for mitigating those impacts and other impacts considered in the land use review, is to extinguish H~istr~rie t-Rights,-p~rs~ant-te-El~apter-26.535, up to a maximum of SDO square feet. -{-l va (' a no-~t~~ ~ p -!a 0. an~B~i ~ ~ n---`r~~ted-asa-lVl~ndater~DcEUpaney~zni~, and~r-ly an ADU unit that is deed-restricted mCtXi mvm u~~.u i~.acriv _ as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of 500 ~ ~~ square feet from anon-historically designated property that has sufficient available floor area pursuant ~ ~ UQ ~~ to the special review procedures detailed in this section. -~ °t~~ i ~ In addition to the special review eri~ia in Section 26.520.080,nfloor area frorrr-~~ may be ~a approve~ursuant to the following additional review criteria: y { `, ~". _} 1. ~'~ (1 i { [ 1 ~ L C~ 1"~ ~ (~ 1, ' (1) The additional floor area is a conversion of existing square footage which was not previously ~~ ~vt5hfd counted in floor area (Example: storage space made habitablex) c~ ~ (' --___ ~ Ltx~~ Q D~~t t~ ~ ~~e additional floor area creates a more desirable, livable unit with minimal additional impacts to ~{~ ~ _f the bulk and mass of the ADU structure. "- d~e,cd i~ ~ t a-i c~E ed~ ~Z~ ~ The additional floor area creates a unit which is more suitable for caretaker families. ~ Q5 ~~ ~ The increased impacts from the larger size are outweighed by the benefits of having a larger, more ~~d~r~ desirable ADU. lUCtufXi~C'y Una City of Aspen Land Use Code. June, 2005 Part 300, Page 26 • (~-~-) (~ No variance from setbacks can be required to accommodate the bonus floor area approved (~(Yl'({ (~ iZ ~ ___- T_°-- ~ '-, f?e~}ont-Rights, commensurate with the floor area expansien; are ~'`~ extinguished pursuant to Chapter 26.535 -1-Iistoric Transferable Development Rights: through this section of the Code. The area and bulk of the ADU structure, after the addition of the bonus floor area, must be =~ (~ compatible with surrounding uses and the surrounding neighborhood. ~(~,~ (~ For the transfer of allowable square footage up to 500 square feet from anon-historically designated property to an ADU deed-restricted as a Mandatory Occupancy unit, the Applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the Mandatory Occupancy ADU. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. U~rsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance, and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore, repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this title. F. Ability to Restore. Non-purposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature, or through any manner not purposefully accomplished by the owner, maybe restored as of right if a building permit for reconstruction is issued within twenty four (24) months of the date of demolition or destruction. 2. Purposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this Title, or unless replacement of the nonconformity is approved pursuant to the provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve (12) months of the date of demolition or destruction.* *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is anon-conforming structure and subject to non-conforming structure replacement provisions. Density on a substandard parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the code including single-family floor area requirements. (Ord. No. 1- 2002 § 6 (part), 2002; Ord. No. 9-2002 § 5; Ord. No. 35 - 2004 , 2002) City of Aspen Land Use Code. June, 2005. Part 300, Page 27 4.__I TO: Aspen Planning and Zoning Commission FROM: Jason Lasser THRU: Chris Bendon, Community Development Director and Jennifer Phelan, Community Development Deputy Director DATE OF MEMO: MEETING DATE: November 6, 2007 RE: Code Amendment to Section 26-312.030 (C)Non-Conforming Structures -Extensions Applicant/Owner The City is sponsoring the Code Amendment as a courtesy to Chris and Lynn Seeman who are interested in pursuing an application if the Code Amendment is passed. The City sponsorship allows the Amendment to be processed outside the biannual dates typically required. Representative Alice Davis of Davis Horn Incorporated and Gideon Kaufman of Kaufman Peterson who worked with Chris Bendon in passing Ordinance 35 of 2004 which created this legislation in 2004. Application The Code Amendment would apply to the extension ofNon-conforming structures as discussed in Section 26-312.030 (C) of the Code. The extension of anon-conforming structure is only allowed for Historic Structures and for ADUs/Carriage Houses deed restricted as a mandatory occupancy unit. There were originally only two approved ADUs/Carriage Houses approved as a mandatory occupancy unit in the short period of time the legislation was in effect. One of these two ADUs has had its restriction removed and the Seemans live in the one mandatory occupancy unit remaining. The applicability of the legislation is quite narrow. Summary of the Proposed Code Amendment: The Code Amendment will change a few words in the existing Code language, combine two existing review standards into one, and eliminate one existing review standard. These minor amendments will eliminate confusion and clarify the original intent of Section 26.312.030( C)(1) of the Code which was adopted in 2004 through Ordinance 35. Land Use Request and Procedure The Code Amendment will go to Planning and Zoning Commission once and to City Council twice for the two required readings of the proposed Ordinance. The Seemans hope to submit an application as soon as practical after the Code Amendment is passed or prior to final approval if the amendment is well received and approval is eminent. Summary of the Proposed Ordinance. "I'hc specific Codc language proposed is attached. `I~he Codc section being modified is Section 2G-312-1130 (C) titled Nonconforming structures: Extensions. The Cxtcnsion section, item (1) General states that nonconforming structures cannot be extended by an enlargement or expansion that increases the nonconformity. Item (2) Historic Structures and Item (3) ADUs and Carriage Houses address the two exceptions to this general regulation in item (1) as the only non-conforming structures that can increase a nonconformity must comply with the specified circumstances given under item (2) Historic Structures and item (3) Accessory Dwelling Units or Carriage Houses (ADUs) deed restricted as a mandatory occupancy unit. The proposed Code amendment intends to clarify the circumstances of when an extension of ADUs or Carriage Houses deed restricted as a mandatory occupancy unit is appropriate. As the Code currently reads, the total floor area on a lot containing an ADU deed restricted as a mandatory occupancy unit is allowed to be expanded beyond the allowed floor area for the lot, up to 500 total bonus square foot, if all of the bonus floor area goes in to the ADU; if the ADU does not exceed the maximum size allowed for an ADU or Carriage House (1,200 square feet at this time); and if approved through the Special Review and ADU reveiw standards and the criteria in this Nonconforming structures section of the Code. When first created, the language was confused with the language for the Historic Structure floor area bonus in item 2 and TDR language is mentioned. TDRs are not technically used for the ADU exemption and the Historic Structure and TDR language is confusing. The ADU exemption allows the impacts of the bonus floor area (up to 500 total square feet) to be mitigated by extinguishing the floor area on another property and transferring the extinguished floor area to the ADU. This is accomplished through a legal instrument defined in the Code section. The proposed Code amendment eliminates the mention of TDRs and Historic Structures under the ADU exception as this language is inappropriate and unnecessary. There are eight (8) criteria listed in Section 26-312-030( C) (3) for review of the nonconforming structure exception for ADUs. The proposed Code amendment cleans up these criteria so that references to Historical Structures and TDRs are eliminated. This eliminates criteria #7. Also, criteria # 1 and #2 have been combined as # 1 and #2 were not originally intended to be separate requirements. These criteria are intended to be guidelines for when the impacts of the 500 square foot bonus need to be further mitigated beyond what is required through the Special Review and ADU review standards and approval process. Last, the word "criteria" is amended to be called "review standards'' to be more consistent with the Code's Special Review and ADU review standards. The entire Chapter 26-312 of the Code (only four pages) is given to explain the context of the Code amendment, though only items B and C of Section 26.312.030 are proposed for amendment. 0 0 Sec. 26.312.030. Nonconforming structures. A. Authority to continue. A nonconforming structure devoted to a use permitted in the zone district in which it is located may be continued in accordance with the provisions of this Chapter. B. Normal maintenance. Normal maintenance to nonconforming structures may he performed without affecting the authorization to continue as a nonconforming structure. C. Extensions. 1. General. A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity. 2. 1 listoric structures. "I~hc 1 irrl,exccption to this requirement shall be for a structure listed on the Aspen Inventory of Historic Landmark Sites and Structures. Such structures may be extended into front yard, side yard and rear yard setbacks, may be extended into the minimum distance between buildings on a lot and may be enlarged, provided, however, such enlargement does not exceed the allowable floor area of the existing structure by more than five hundred (~00) square feet, complies with all other requirements of this Title and receives development review approval as required by Chapter 26.41 ~. 3. Accessory dwelling units and carriage houses. The ~~~~ ~t7~~xception to this _ requirement shall be for a property with a detached accessory dwelling unit pr carriage house ; `~ I )~ ~'; . Such a detached ADU or carriage house structure may be enlarged or expanded by up to five hundred S00) square feet of door area, provide that this bonus door area shall go entirely to the detached ADU of carriage house and also provided that the ADU or carriage house does not exceed the maximum size allowed for an ADU of carriage house. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required by Chapter 26.20, Accessory Dwelling Units and Carriage Houses and Special Review approval pursuant to Chapter 26.430. The five hundred (500) square foot floor area expansion may be allowed if the unit complies with the review criteria and standards of Chapter 26520, including but not limited to a finding that the expansion shall be compatible with the character of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated. Only the floor area which will increase the ADU or carriage house beyond the legally created nonconforming door area (the expansion floor area) is required to be mitigated. Deleted: only Deleted: only other --_- Deleted: (:~DC1 __ If the impacts of the expanded use cannot be sufficiently mitigated otherwise, an additional method of mitigating those impacts and other impacts considered in the land use review is to extinguisl4]luut 1ma on anothe~ropel-t~ up to a maximum of 500 square I~et .n i~rtlct tr u~~.n~ "i~wi ~~t_i_n_~uisMed fluor area to thc_ADU deed rratrleted as a mandatory occu~ncv unit. ;_~Ily an ADU unit that is deed restricted as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of five hundred (~00) square feet from a Deleted: Historic Transferable Development Rights. pursuant to Chapter 2G.53~. up to a maximum of tive hundred (500) square feet Deleted: In addition to the ability to estin~ntish a Historic Transferable Development Right as discussed above, nn :1DL! deed-restricted as a mandatory occupancy unit and -- Deleted: n o nonhistorically designated property that has sufficient available floor area pursuant to the special review procedures detailed in this Section. -- In addition to the special review ~l:ui~l;.~:,;< jn Section 26.20.080. ~~~~n.~u.ii~~~.l door area Deleted: criteria _...... nay be approved I.~,~~ a in~_i.;~.i t ~ ui.\I)I pursuant to the lollowing addlUonal reVlew Deleted: eon,aTDR S_tan~lat'cl~: ~' - - Deleted: criteria (1) "fhe additional floor area is a conversion of existing square footage which was not previously counted in floor are~(Examplc: storage space made habitable.)_ur ,{he additional door area creates a more desirable, livable unit with minimal additional impacts to the bulk and mass of the ADU stlvcture. (~ The additional floor area creates a unit which is more suitable for caretaker families. (~ The increased impacts ti•om the larger size are outweighed by the benefits of having a larger, more desirable ADl1. (-!~ No variance from setbacks can be required to accommodate the bonus floor area approved though this Section of the Code. (~J The area and bulk of the ADU structure, after the addition of the bonus door area, must be compatible with surrounding uses and the surrounding neighborhood. ~(~ For the transfer of allowable square footage up to tive hundred (~00) square feet from anon-historically designated property to an ADU deed-restricted as a mandatory occupancy unit, the applicant shall record an instrument in a form acceptable to the City Attorney removing door area from the sending property to the mandatory occupancy AD11. D. Relocation. A nonconforming structure shall not be moved unless it thereafter conforms to the standards and requirements of the zone district in which it is located. E. Unsafe structure. Any portion of a nonconforming structure which becomes physically unsafe or unlawful due to lack of repairs and maintenance and which is declared unsafe or unlawful by a duly authorized city official, but which an owner wishes to restore. repair or rebuild shall only be restored, repaired or rebuilt in conformity with the provisions of this Title. F. Ability to restore. 1. Non-purposeful destruction. Any nonconforming structure which is demolished or destroyed by an act of nature or through any manner not purposefully accomplished by the owner, may be restored as of right if a building permit for reconstruction is issued within twenty-four (24) months of the date of demolition or destruction. Deleted:. Deleted: ~i 9 ~2> _t_ Deleted: ; - Deleted: t Deleted: 5 Deleted: G Deleted: (7) }{istoric Transferable Development Rights, commensurate with die Floor azca expansion, are extinguished pursuant to Chapter 26.535 -Historic transferable development righ[s.!~ I Deleted: s f 2. Nurposeful destruction. Any nonconforming structure which is purposefully demolished or destroyed may be replaced with a different structure only if the replacement structure is in conformance with the current provisions of this'I'itle f or unless replacement of the nonconformity is approved pursuant to [he provisions of Chapter 26.430, Special Review. Any structure which is nonconforming in regards to the permitted density of the underlying zone district may maintain that specific nonconformity only if a building permit for the replacement structure is issued within twelve Q2) months of the date of demolition or destruc[ion.* *A duplex or two single-family residences on a substandard parcel in a zone district permitting such use is a nonconforming structure and subject to nonconforming strucmre replacement provisions. Density on a substandard parcel is permitted to be maintained but the structure must comply with the dimensional requirements of the Code including single-family floor area requirements. (Ord. No. 1-2002, § 6 [part]; Ord. No. 9-2002, § 5; Ord. No. 35-2004, § 1) PUBLIC NOTICE RE: CITY INITIATED AMENDMENTS TO CHAPTER 26.312 OF THE LAND USE CODE NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, February 19, 2008, at a meeting to begin at 4:30 p.m. before the Aspen Planning and Zoning Commission, Sisters City Room, City Hall, 130 S. Galena St., Aspen, to consider a City initiated ordinance that amends regulations to nonconforming structures in Chapter 26.312 "Nonconf°'n,,n,~,i~{ 'es". The intent if the amendments are to create an exemption for Accessory Dwelling Units~id~arriage Houses to allow the extinguishment of bonus floor area for the deed restricted ADU and to amend Section 26.312.030 C. Extensions. For further information, contact Jason Lasser at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO, (970) 429.2763, jasonl@ci.aspen.co.us. s/ Dylan Johns. Chair Aspen Planning and Zoning Commission Published in the Aspen Times on February 3, 2008 City of Aspen Account }~. -.. \«+/ PUBLIC NOTICE RE: CITY INITIATED AMENDMENTS TO CHAPTER 26.312 OF THE LAND USE CODE NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, February 19, 2008, at a meeting to begin at 4:30 p.m. before the Aspen Planning and Zoning Commission, Sisters Ci 5 Room, City Hall, 130 S. Galena St., Aspen, to consider a City initiated ordinance that a od~" regulations to nonconforming structures ge hnn `* ----` -- --° ty~ *+++ Chapter 26.312 "Nonconformities". For further information, contact Jason Lasser at the City of Aspen Community Development D partment, 130 S. Galena St., Aspen, CO, (970) 429.2763, jasonl@ci.aspen.co.us. ~~ + , s/ Dylan Johns, Chair '(~ ~ ~~ "~ "~,~ Aspen Planning and Zoning Commission ~, ,1^^ ~ ~YY~ Published in the Aspen Times on February 3, 2008 City of Aspen Account _~~~_ 1 /' __ _. _. _~.w_______,.~ ~IIIIIIIlIIIIIIIIIIIIIIIIIIIIIIIIIIII~IIIIIIII~II4III 5062 e@ el:aei SILVIii DRVIS PITKIN COUNTY CO R 21.00 D 0.00 Ordinance No. 35 (SERIES OF 2004) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE TEXT OF THE LAND USE CODE TO PERMIT ADDITIONAL DEVELOPMENT ON PROPERTIES CONTAINING AN ACCESSORY DWELLING UNIT AND WHICH ARE NON-CONFORMING WITH RESPECT TO FLOOR AREA -SECTION 26.312.030.0.3 OF THE CITY OF ASPEN LAND USE CODE -NON-CONFORMING STRUCTURES. WHEREAS, the City Council of the City of Aspen directed the applicant to submit an amendment to the Land Use Code, pursuant to sections 26.208; and, WHEREAS, the applicant is Gideon Kaufman, Kaufman Peterson Dishler Attorneys, representing Leonard Lauder, property owner; and, WHEREAS, the requested amendment is to Section 26.312.030.0.3 of the Land Use Code and would permit additional development on properties with an Accessory Dwelling Unit and which are non-conforming with respect to floor area; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewe~and recommended for approval, approval with conditions, or denial by the Planning D ector and then by the Planning and Zoning Commission at a public heazing. Final actions all be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Planning Duector recommended denial of amendments to the Land Use Code as described herein; and, WHEREAS, the Planning and Zoning Commission opened the public heazing to consider the proposed amendments, as described herein, on September 7, 2004, and continued October 5, 2004, took and considered public testimony and the recommendation of the Planning Director and recommended, by a three to two (3-2) vote, City Council not adopt the proposed amendments to the Land Use Code, as described herein. WHEREAS, the Aspen City Couhcil has reviewed and considered the application according to the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Developmem Director, the Planning and Zoning Commission, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the application meeting or exceeding alI applicable standards of the land use code of the City of Aspen Municipal Code and that the approval of the proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council fords that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. Ordinance No. 35, Series of 2004 Page 1 ~'` ~1 IIIIIIIVIIII~III(IIIIVIIIIIIIIIIIII~IIIUBiIIII~III 50620©eI aDi SILVIH DL1VI5 PITKIN COUNTY CO R 2,1.00 D 0.00 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO as follows: Section I• Section 26.312.030.0 of the City of Aspen Land Use shall include a new subsection 3 to read as follows: 3. Accessory Dwelline Units and Carriage Houses The only other exception to this requirement shall be for a property with a detached accessory dwelling unit (ADU) or Carriage House. Such a detached ADU or Carriage House structure may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU or Carriage House and also provided that the ADU or Carriage House does not exceed the maximum size allowed for an ADU or Carriage House. The enlargement or expansion must comply with all other requirements of this Title, and shall receive development review approval as required by 26.520, Accessory Dwelling Units, and Special Review approval pursuant to Section 26.430. The 500 square foot floor azea expansion may be allowed if the unit complies with the review criteria and standards of the Aspen Land Use Regulations Sections 26.520 including, but not limited to, a finding that the expansion shall be compatible with the character of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated.. Only the floor area which will increase the ADU or Carriage House beyond the legally created non-conforming floor azea (the expansion floor azea) is required to be mitigated. If the impacts of the expanded use cannot be sufficiently mitigated otherwise, , an additional method for mitigating those impacts and other impacts considered in the land use review, is to extinguish Historic Transferable Development Rights, pursuant to Chapter 26.535, up to a maximum of 500 square feet. In addition to the ability to extinguish a Historic Transferable Development Right, as discussed above, an ADU deed-restricted as a Mandatory Occupancy unit, and only an ADU unit that is deed-restricted as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of 500 squaze feet from anon-historically designated property that has sufficient available floor azea pursuant to the special review procedures detailed in this section. In addition to the special review criteria in Section 26.520.080, floor area from a TDR may be approved pursuant to the following additional review criteria: (1) The additional floor area is a conversion of existing squaze footage which was not previously counted in floor area. (Example: storage space made habitable.) Ordinance No. 35, Series of 2004 Page 2 _._ .., _. _ . ._.__,._,_,s._.._ .~_____ ___,,,,~ ~, IINIIII~II~hINIIIIIII~INIIIII~N111111111111111105O6~2®O0er <ei (2) The additional floor area creates a more desirable, livable unit with minimal additional jmpacts to the bulk and mass of the ADU structure. (3) The additional floor area creates a unit which is mote suitable for cazetaker families. (4} The increased impacts from the lazger size aze outweighed by the benefits of having a larger, more desirable ADU. (5) No variance from setbacks can be required to accommodate the bonus floor area approved through this section of the Code. (6) The azea and bulk of the ADU structure, after the addition of the bonus floor area, must be compatible with surrounding uses and the surrounding neighborhood. (7) Historic Transferable Development Rights, commensurate with the floor area expansion, are extinguished pursuant to Chapter 26.535 -Historic Transferable Development Rights. (8) For the transfer of allowable square footage up to 500 square feet from a non- historically designated property to an ADU deed-restricted as a Mandatory Occupancy unit, the Applicant shall record an instrument in a form acceptable to the City Attorney removing floor azea from the sending property to the Mandatory Occupancy ADU. Section 2• All material representations and commitments made by the developer pursuant to the development proposal approvals as herein awazded, whether in public hearing or documentation presented before the Community Development Department, or the Aspen City Council, aze hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by other specific conditions. Section 3: This Ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4• If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Ordinance No. 35, Series of 2004 Page 3 111111 IIIN 111111 IIII IIIII III IIIIiII 111 IIII IIII ill a °620 ° 03 4s~ SILVIR CPVIS PITKIN CWNTY CO R 23.00 0 0.00 Section 5: A public hearing on the Ordinance was held on the 22"d day of November, 2004, at 5:00 in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 6• This ordinance shall become effective thirty (30) days following final adoption. INTRODUCED, READ AND ORDERED PUBLISH pr vided bylaw, 1?y.the,City Council of the City of Aspen on the ~5 day ~~ .~ OF A3,. ;4~ .,fy. I-. ;nj:$: IS h, City Clerk elen Kahn anderud, Mayor '~ VOn FINALLY, adopted, passed and approved this v~day of ~ Q/i / ,,L\~t~~~'I~fy'~. ch, City Clerk Helen Kalin Klan erud, Mayor as to form: /~- ohn o cester, City Attorney Ordinance No. 35, Series of 2004 Page 4 ,-. t, --~ ~. / 3 explanatory text below, which offers a rationale for each code text amendment, using the red boxes. RECOMMENDATION: Staff recommends approval of this application for various code text amendments to Section 26312.030 RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE~: "I move to approve Resolution No. _, Series of 2008, finding that the application for code text amendments meets the applicable Standards of Review." ATTACHMENTS: EXHIBIT A -Review Criteria and Staff findings Page 3 of 3 ,~. ATTACHMENT 2-LAND USE APPLICATION APPLICANT: t~061.,2oa~, AsLt~ Name: Ghrl s ~- ],inn 5p.>°man ~ Crtu ClE F~So-~n Location: Cl'~'ll O-F f}5QQ-1 ~Qn (~5~~_~ ~~ !7~ (Indicate street a dress lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) /V /~ REPRESENTATIVE: Name ~ ~ ~ ~_ CLU ~ S t~ { l~L°On ~~QIJ{I'YlQY1 Address: o~ ~. 5 S' / mQC~J7I L(1 f'(rl' \ ~ rJ (J l^~L l n ~ ~o~en. (~ Sl (Ol 1 Phone #: goZ.J (¢ S$ 1 4 Z,~ 8 `~ ~i PROJF,CT: Name: "EOl"-111 V Ur Address: /SpG~IOh ~. - 31 ~ ,03C~ Phone #: TYPE oP APPLICATION: (please check all that apply): ^ Conditional Use ^ Conceptual PUD ^ Conceptual Historic Devt. ^ Special Review ^ Final PUD (& PUD Amendment) ^ Final Historic Development ^ Design Review Appeal ^ Conceptual SPA ^ Minor Historic Devt. ^ GMQS Allotment ^ Final SPA (& SPA Amendment) ^ Historic Demolition ^ GMQS Exemption ^ Subdivision ^ Historic Designation ^ ESA - 8040 Greenline, Stream ^ Subdivision Exemption (includes ^ Small Lodge Conversion/ Mazgin, Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane ~ ^ Lot Split ^ Temporary Use ~] C0 Other: ^ Lot Line Ad'ustment ^ .Tex Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) 'ROPOSAL: (description of proposed buildings, uses, modifications, etc.) Have you attached the following? FEES DUE: $__~(~ ^ Pre-Application Conference Summary ^ Attachment #1, Signed Fee Agreement ^ Response to Attachment #3, Dimensional Requirements Form ^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standazcj~3WdOhfi~~~ AlINf1WW0~ All plans that are larger than S.5" x 11" must be folded and a Floppy disk with an electronic copy of al~nb ~0 X110 text (Microsoft Word Format) must be submitted as part of the application. a3ni3~3~ ~ ~r Jason Lasser From: adavis@rof.net Sent: Monday, April 09, 2007 11:10 PM To: Jason Lasser Cc: adavis@rof. net Subject: Lauder > Hi Jason: I am back in Aspen on Wednesday and have briefly looked over the pre-app you sent. Thanks. Did you determine if mitigation by transferring the floor area (Section 26.312.0300 (3) under paragraphs 2 and 4) from another lot will be necessary or required? We would like to know if we have to pursue this floor area to transfer for the bonus. Since the space will be underground (with window wells), have very limited negative visual impacts and will be used in the detached carriage house, we were hoping the mitigation would not be necessary. Let me know what you think. I have only glanced over the pre-app. so if I missed this, I apoligize. Thank you. Alice Davis Alice- > Here are the Lauder ADU pre-apps- > 1.Ordinance No. 35 > 2. Special review for ADU addition > Let me know ii these are what you had inmind- >J >JasonLasser > City of Aspen ~ Planner > Community Development Department > 130 S. Galena St. ~ Aspen, CO 81611 > 970.429.2763 ~ www.aspenpitkin.com <http:/lvnvw.aspenpitkin.com> 1 CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Jason Lasser, 429-2763 DATE: 3.27.07 PROJECT: 850 Roaring Fork Rd. -Lauder ADU / Ord.35, 2004 REPRESENTATIVE: Alice Davis OWNER & ADDRESS: Gary Lauder, 88 Mercedes Ln. Atherton, CA. TYPE OF APPLICATION: Special Review to Vary ADU a inn Stan DESCRIPTION: The Applicant would like toa basement inltheir ADU which requires review approval L Land Use Code Section(s) 26.304 Common Development Review Procedures 26.520 Accessory Dwelling Units tic •4i~ S~ Nl. ~ic~lltw Review by: Staff for review of completeness and recommendation on special review request, Planning and Zoning Commission for final determination on special review. Public Hearing: Yes. Referral Agencies: Housing. Planning Fees: $1320 Deposit ($1340 for 6 hrs of staff time. Any Planner time spent over the 6 hours will be billed at $220.00 per hour.) Referral Agency Fees: $190 (Housing) ~V~S~ ~' ~~at ~, Total Deposit: $1,510.00 ~W~1L ` To apply, submit the following information: ~p ~p ,~ 1. Deposit for Review. 2. Completed Land Use Application. ~~~ 2 S PPPI 3. Proof of ownership J 4. Signed fee agreement 5. Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 6. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 7. An 8 1/2" by 11"vicinity map locating the parcel within the City of Aspen. 8. Site Improvement Survey. 9. Proposed Floor Plans. 10. Proposed Elevation Drawings. 11. A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. 12. Additional materials as required by the specific review. Please refer to the application packet for specific ubmittal requirements or to the code sections noted above. 13.~ Copies of the complete application packet and maps. HPC = 12; PZ = 10; GMC = PZ+S; CC = 7; Referral Agencies = 1/ea.; Planning Staff= 1 Disc'!mer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. PLANNER: PROJECT: REPRESENTATNE: OWNER & ADDRESS: TYPE OF APPLICATION: DESCRIPTION: CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY Jason Lasser, 429-2763 DATE: 3.27.07 850 Roazing Fork Rd. -Lauder ADU / Ord.35, 2004 Alice Davis Gary Lauder, 88 Mercedes Ln. Atherton, CA. Missing language in LUC from Ord. 35, 2004 (section 26.312.030.0.3) The Applicant's representative, Alice Davis presented Ordinance No. 35, Series of 2004 which amends the text of the Land Use Code to permit additional development on properties containing an accessory dwelling unit and which are non-conforming with respect to floor area- Section 26.312.030.0.3 of the Aspen Land Use Code- Nonconforming Structures. Missing language from Section 26.312.030.0: 3. Accessory Dwelline Units and Carriaee Houses. The only other exception to this requirement shall be for a property with a detached accessory dwelling unit (ADU) or Cazriage House. Such a detached ADU or Carriage House structure may be enlarged or expanded by up to five hundred (500) square feet of floor area, provided that this bonus floor area shall go entirely to the detached ADU or Carriage House and also provided that the ADU or Carriage House does not exceed the maximum size allowed for an ADU or Carriage House. The enlargement or expansion must comply with all other requirements of this Title and shall receive development review approval as required by 26.520, Accessory Dwelling Units, and Special Review approval pursuant to Section 26.430. The 500 square foot floor area expansion may be allowed if the unit complies with the review criteria and standards of the Aspen Land Use Regulations Sections 26.520 including, but not limited to, a finding that the expansion shall be compatible with the character of surrounding uses and is consistent with the purposes of the underlying zone district. The expanded use shall not have adverse impacts on the surrounding uses or those impacts will be mitigated. Only the floor area which will increase the ADU or Carriage House beyond the legally created nonconforming floor area (the expansion floor area) is required to be mitigated. If the impacts of the expanded use cannot be sufficiently mitigated otherwise, an additional method for mitigating those impacts and other impacts considered in the land use review, is to extinguish Historic Transferable Development Rights pursuant to Chapter 26.535, up to a maximum of 500 square feet. In addition to the ability to extinguish a Historic Transferable Development Right as discussed above, an ADU deed-restricted as a Mandatory Occupancy unit, and only an ADU unit that is deed restricted as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of 500 square feet from anon-historically designated property that has sufficient available floor area pursuant to the special review procedures detailed in this section. In addition to the special review criteria in Section 26.520.080 floor area from a TDR may be approved pursuant to the following additional review criteria: (1) The additional floor area is a conversion of existing square footage which was not previously counted in floor area. (Example: storage space made habitable.) (2) The additional floor area creates a more desirable livable unit with minimal additional impacts to the bulk and mass of the ADU structure. r^ r~, 'ti. ~... (3) The additional floor area creates a unit which is more suitable for caretaker families (4) The increased impacts from the larger size aze outweighed by the benefits of having a larger more desirable ADU. (5) No variance from setbacks can be required to accommodate the bonus floor area approved through this section of the Code. (6) The area and bulk of the ADU structure afrer the addition of the bonus floor area must be compatible with surrounding uses and the surrounding neighborhood. (7) Historic Transferable Development Rights commensurate with the floor area expansion are extinguished pursuant to Chapter 52365 Historic Transferable Development Rights. (8) For the transfer of allowable square footage up to 500 square feet from anon-historically designated property to an ADU deed restricted as a Mandatory Occupancy unit, the Applicant shall record an instrument in a form acceptable to the City Attorney removing floor area from the sending property to the Mandatory Occupancy ADU. Land Use Code Section(s) 26.312.030 (C) Nonconforming Structures Review by: -n/a Public Hearing*: -n/a Referral Agencies: -n/a Planning Fees: -n/a Referral Agency Fees: -n/a Total Deposit: -n/a To apply, submit the following information: ^ Proof of ownership with payment. ^ Signed Fee agreement. ^ Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ^ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ^ Total deposit for review of the application. ^ ~llCopies of the complete application packet and maps. HPC = 12; PZ = ] 0; CC = 7; Referral Agencies = 1 /ea.; Planning Staff = 1 ^ An 8 1 /2" by 11"vicinity map locating the parcel within the City of Aspen. ^ Site improvement survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not to warrant a survey document.) ^ A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. List of adjacent property owners within 300' for public hearing ^ Copies of prior approvals. - .-.. ,_ ~, ~.~ ^ Applications shall be provided in paper format (number of copies noted above) as well as the text only on either of the following digital formats. Compact Disk (CD)-preferred, Zip Disk or Floppy Disk. Microsoft Word format is preferred. Text format easily convertible to Word is acceptable. ^ Applicants are advised that building plans will be required to meet the International Building Code as adopted by the City of Aspen, the Federal Fair Housing Act, and CRS 9.5.112. Please make sure that your application submittal addresses these building-related and accessibility regulations. You may contact the Building Department at 920-5090 for additional information. *For all public hearings, the Community Development Department is responsible for publishing the legal notice in the newspaper and having the Clerk put the 2"d Reading ordinance in the newspaper. The Applicant is responsible for posting the property and for the mailing of legal notices, at least 15 days prior to the hearing, to property owners within 300 feet of the subject property. The GIS department can provide this list on mailing labels for a fee. The applicants are responsible for filing an affidavit of mailing and posting with the Community Development Department prior to the public hearing. (Applicants-make a copy of your mailing labels before using to submit with your affidavit) Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. 10/15/07 MON 12:04 FAR CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT et Anaatnmt pQ[Fayme r Cie efAmen DeysppmentAodkamn Rm GITYOPASPEN(horoinaAcCITY).nd Lhris 't' Lynn $121PJnCir1 • (haebeRu APPLiCATTI') AGRBB AS FOLLOW APPLICANT has mbmided to C17Y a4 application for fool zr.•3-~ ,034 2. APPLICANT uodartandt and agree dot City Of Aspon Otdinaeoe No. S7 (Sena of 2000) atblbbee a fa setucmro for Lapel Uu applbuions and the WY~^t of all preareiog face is a condition precedent b a demtmitutlon o! applicatieb eompkemge. 3. APPLICANT and C]TY agrtx the became of dte size, Delete or scope of the proposed projat, it is not possible a this time to aetumin the fldl extent of Ne lost involved lb procrosing the eppliation. APPLICANT and CITY fudher ag[ee that it is le the imcrrat of the patties that APPLICAM make payment of an initid dt:pecit and m eheteaRer permit additional Doses to be bitlsd to APPLICANT ee ^ montllly finis. APPLICANT sgrors additional eosa tray ascots following their heatingt and/or appmvala. APPLICANT agrees he will be beneficed by rotaitting greaser cash liquidity end will mdse additional payment open nadfiesnon by the CITY wbm they ate neeepary u cost ue imwrod CITY agree it wilt be btmfitetd through the gtreer certejnty of retoveting iti full seat to proeear APPLICANT'S applieaeion. 4. CITY and APPCICAM flcdher agree chat ie k impeaeticable (or CITY Wff b eodlpkte proesuing er present suffidetu ittfermaeion to the P1aneYlg Commisrion and/or City Council m enabk the Pknning Conemtasion and/or City Council to nuke legally regdred findings for project eoreideranoq emlaf currant billitrga sro paid io full prior to dexisicd. 5. Therefore, APPLICANT agree the in t:onsideratwn of the CITY'a waiver of it ripe to tolhiet Nll fan prior m a detenrdnation of application sompktanees, APPLICANT ohall pay an initial deposit fn the unount of SJ.1 V'1 D which is fa haws of Cotumunity Devebpment staff tune, std if actual iaoorded cost exceed the initial deposit, APPLICANT stall pey Wditional monthly bfllidgs b C1TY to reimburx die C17Y fee ffia processing otthe applicwon rncneioned abon, including peat approval rwiew ae a rate otf235.00 per planner hoot over the initial depWit. Seth pariodlt paymaita shall ba rriede wilhiq 30 days o[ Ne bgllrra date. APPLICANT fiutlter agroa that failtue to pey such xettted care shall be grounds ibr auspiuialott of yrnoaaidgi Ind in no ease will building permit be issued well ell Dogs assoeiamd with sex ptooualeg 0en paid. CITY qF ASPEN sy: s,~: Chris Renaen G' ~i~ Commenlly Developmeet Dlrteter Dak: O( ~Di~ r (Q a .Z.~177 Billr'c Mailing Addrea ud'tdephoee Numtwc Sao ~ ~,~ ~fl ~• ~u, Ca F/Gil . ~"~~-`TLS ~sa3 RECEIVED ~~~r_ n 2001 '.s rv nr ASPEN CO?~1~'t!iia. Y : EVELOPMENT