HomeMy WebLinkAboutcoa.lu.ca.Non Conforming.0061.2007m
0061.2007.ASLU-I -Y-)
CODEAMENDMENT
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THE 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 DeVault
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Main Routing Status Fee Summary Actions Routing History
Permit Type Permit # 0061.200TASLU
y Address 1215 S MONARCH Apt/Suite 104
City ASPEN State CO Zip 81611
Permit Information
s Master Permit J Routing Queue as1u07
o I Project Status pending
Description ICODE AMENDMENT
Submitted ,ALICE DAVIS 925-8166 Clock Running Days F0
Owner
J
Applied 1012312007 J
Approved J
Issued J
Final
Expires 1Oj17J2008
Last Name DAVIS J First Name ALICE 215 S MONARCH
-- 104
Phone ASPEN CO 81611
r Owner Is Applicant?
Applicant
Last Name DAMS I First Nine ALICE
Phone I Cust # 127969
Lender —
Last Name First Name
Phone
Enter the permit type code AspenGold(b) Record: 2 of 2
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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
REPRESENTATIVE: Alice Davis
OWNER & ADDRESS: Gary Lauder, 88 Mercedes Ln. Atherton, CA.
TYPE OF APPLICATION: Enlargement of a non -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 I I" 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+5; 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 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, 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 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 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.
(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 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 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
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.*
*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)
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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 24t' day of March, 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:
City Attorney
Michael C. Ireland, Mayor
ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: /y/1 , Aspen, CO
SCHEDULED PUBLIC HEARING DATE: /—[o a- 54m,200
Q�
STATE OF COLORADO )
) SS.
County of Pitkin )
SG0(name, please print)
being or Kepresenting 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:
bl 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 (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)
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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
The foregoing "Affidavit of Notice" was acknowledged before me thisZB day
of 7�,�� , 200 9-.5 by
WITNESS MY HAND AND OFFICIAL SEAL
My commissio expires:
Notary Public U
O�PRY PUe�i
LAURA
't MEYER
ATTACHMENTS: �jF .coti
OF
COPY OF THE PUBLTCA TION MY Commission Fxeires 0811012010
PHOTOGRAPH OF THE POSTED NOTICE (SIGN
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BYMAIL
PUBLIC NOTICE
RE: CITY INITIATED AMENDMENTTIESS TO CHAP -
OF THE MUNICIPAL CODE (LAND USE COE)26
NOTICE IS HEREBY GIVEN that a public
hearing will be held on Monday, May 12, 2008, at
a meeting to be In at 5:00 p.m. before the As-
pen City Council, Rio Grande Room, 455 Rio
Grande Place, Aspen, to consider a City initiated
ordinance that amends regulations to nonconform-
ing structures in Chapter 26.312 "Nonconfonnities".
The intent if the amendments are to create an ex-
emption for Accessory Dwelling Units (ADU) and
Carna a Houses to allow the extinguishment of
amusoor area for the deed
Section 26.312 030 C restricted and to
For further information, contact Jason Lasser at the
City of Aspen Community Development Depart-
ment, 13o S. Galena St., Aspen, CO. (970)
429.2763, lasonloci.aspen.co.us.
sy Michael C. Ireland, Mayor
Aspen City Council
Published in the Aspen Times Weekly on April 27,
2006.(1453456)
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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
RE: Code Amendments to Section 26.312.030 (C) - Nonconforming
Structures — Ordinance No. 7, Series 2008 — 2°d Readinlz
SUMMARY:
Alice Davis, on behalf of the Lauder family, has submitted a number of text amendments with
regard to the Non -conformities 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.
1ST READING SUMMARY:
City Council requested the following from Staff:
Is the Lauder Accessory dwelling Unit (AU) the only Mandatory Occupancy unit?
It is unclear from the APCHA records and history how many were created and how many L4
units are still in existence today. After reviewing the list with Cindy Christensen from a 1
APCHA,Athree other units (101 Dale Ave and (2) unitslearin
2 Williams Way).
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CAVVfA
Include the relevant packet information from the 2004�, including the minutes.
The packet information from the 2004 and 2008 Planning and Zoning and City Council
public hearings are included as "Exhibits B, C, and D."
LAND USE REQUESTS AND REVIEW PROCEDURES:
The City Council is requested to take the following actions:
Determination if application to amend code text meets Standards of Review pursuant to
Land Use Code Chapter 26.310.040 Standards of Review.
On February 19t', 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
Gary and Laura Lauder, property owners and Chris and Lynn Seeman, ADU residents.
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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 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 the maximum allowable) to add up to 500 square feet of floor area 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 area 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 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 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 requirements were subsequently 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 established 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
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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, amending the text of the
Land Use Code to permit additional development on properties containing and accessory
dwelling unit (ADU) and which are non -conforming with respect to floor area.
(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. 435, 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 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 t 'liet �eughs in
red for removed text and underlined blue shadin, 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
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" 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 -
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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), clarifies 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
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:
ExHmIT A — Review Criteria and Staff findings
ExHIBIT B — 2004 P+Z packet information (memoranda, Staff findings, Resolution, Minutes)
ExHIBIT C — 2004 City Council Packet information (memoranda, Staff findings, Ordinance,
Minutes)
ExHIBIT D — 2008 P+Z packet information (memorandum, Staff findings, Resolution, minutes)
ExHIBIT E — Ordinance 35, Series of 2004
Page 4 of 4
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•
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 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. Text being r-e ...eved leeks like this. Text
being added is underlined and blue. Text being, added looks like this. Text which is not
highlighted is not affected; and,
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E
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. lr-Qener-al. 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 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 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.
3- 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses.
The e* second ethef exception to this requirement shall be for a property with a
detached Accessory Dwelling Unit (AP9) or Carriage House ("ADU") having a
mandatory occupancy requirement. Such a detached ADU er earfiage -here
stniciur-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
Of Caffia-e house and also provided that the ADU of eafriage 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 herein. 26.520, Aeeessery
Dwelling rzar�-vziitsand- carriage Houses and i� al Re appr-aval pursuant to
Chapter- �
The + >, d a (500) squafe feet Pear area expansion may be allowed ;f tko
.:t , plies with the r er-iteria and standards of Chapter 26.520, ifieluding,
but not limited to a finding that the -expansion shall be -compatible with the
zone district. The e4,panded use shall t have aa,_ ;,. paets an the , ,.,a:.,,,
�anvu�����,
uses vrthese impaE"s will be mitigated. Only the z vOOf afea Wiii^eh Wilrll ifieTeaSe the
ADU of b t..�,•,,house n the lo,.b.,lly er-e,te fafi:i fl inn, ear a ., (the •
Fl ar- afea is fed to be mitigated.
b
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._
■
WINNI..
MANY M''I
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 annlication. The development annlication
shall be processed under Chapter 26.430, Special Review.
b) Review Standards. An application for increasing the maximum floor area
of a property for the purpose of increasing the size of an ADU shall meet
the criteria standards in Section
26.520.050. Design Standards, unless otherwise approved pursuant to
Section 26.520.080, Special Review, yea from ^ TDR may be
approved pursue as well as the following additional review er-iter-ie
• 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)Extinpuishment 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.
(42) 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) (3) The additional floor area creates a unit which is more suitable for
40
caretaker families.
P174 • •
(4) (4j The increased impacts from the larger size are outweighed by the •
benefits of having a larger, more desirable ADU.
floor- area appfeved though this Seetion of the Code-.
((6) (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.
transferable development rights.
(S-) (7) For the transfer of allowable floor area o1quiffe up to five
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.*
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• *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 OVDWD PD as provided by law, by the City
Council of the City of Aspen on th day 172008.
Attest:
Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor
FI\ALLY, adopted, passed and approved this day of , 2008.
Attest:
Kathryn S. Koch, City Clerk Michael C. Ireland, :Mayor
• 0 P177
i 410uall
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 AD 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 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 quite 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 including, but not limited to,
transportation facilities, sewage facilities, water supply, parks, drainage, schools and
emergency medical facilities.
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Staff Findings:
The amendment will affect one unit and family. Staff does not f nd 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 Findin&L
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.
Sta 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 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
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EXHIBIT B.
MEMORANDUM
TO: Aspen Planning and Zoning Commission
THRU: Joyce Allgaier, Deputy Director
FROM: Chris Bendon, Senior Planner
RE: Code Amendment — Section 26.312.030 — Non -Conforming Structures
DATE: September 7, 2004
SUMMARY:
Gideon Kaufman, 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 area on a property that currently exceeds its maximum allowable floor area. 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 area 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 area use the fledgling Historic TDR
program. Otherwise, a new TDR program may dilute the potential of the Historic
TDRs. The proposed text is unclear as to whether the transferred floor area must
accommodate the extent of the nonconformity plus the expansion or only just the
expansion floor area. 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 of non -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 further analysis. It should be
noted that, associated with a soon -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.
Pi80 •
u
APPLICANT:
Gideon Kaufimn, Kaufman Peterson Dishier Attorneys, representing Leonard 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 area
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 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.)
2
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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 it 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 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 area 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 caretaker. 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 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 area 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.
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 unclear with this proposed language whether or not the proposal is to transfer
only enough floor area to accommodate the expansion or if the intent is to first
accommodate the floor area overage and then the expansion. Staff recommends that a
system of permitting oversized houses to expand should require a transfer of floor
area equal to the overage plus the expansion, not just the expansion.
3
P182 9
•
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 regarding 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
0
• P183
RESOLUTION NO. —
(SERIES OF 2004)
A RESOLUTION OF THE PLANNING AND ZONING COMIVIISSION OF THE
CITY OF ASPEN, COLORADO, RECOMMENDING AMENDMENTS TO
SECTION 26.312.030.C.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, Kaufman Peterson Dishler
Attorneys, representing Leonard Lauder, property owner; and,
WHEREAS, the requested amendment is to Section 26.312.030.C.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 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 the recommendation of the Planning Director and
recommended, by a _ to _L-� vote, City Council adopt the proposed amendments
to the Land Use Code, as described herein.
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING AND ZONING
COMMISSION OF THE CITY 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.C.3 to include
the following text:
26.312.030 Non -conforming structures.
P184 •
0
(C)
(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
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 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 transfer the 500 square feet of floor area, or any amount up to 500 square
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 area expansion bonus up to 500
square feet, will be subtracted from the maximum floor area allowed on the sending
property. Only available floor area 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 area 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 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.
(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
P185
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, after the addition of the bonus floor area,
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
square feet 6f floor area. 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 square feet of excess, unused
floor area remaining. Five hundred (500) square feet of this unused floor area can be
transferred to an ADU or Carriage House which is non -conforming with regard to floor
area. A deed restriction limiting the allowed floor area on the sending site to 4,000
square feet (4,500 square feet allowed minus the 500 square foot bonus transferred) must
be recorded. To utilize this floor area bonus, the receiving property's ADU or Carriage
House after the expansion must not be larger than the maximum size allowed
APPROVED by the Commission during a public hearing on
APPROVED AS TO FORM:
City Attorney
ATTEST:
Jackie Lothian, Deputy City Clerk
PLANNING AND ZONING
COMNUSSION:
Jasmine Tygre, Chair
2004.
P186 •
MEMORANDUM
TO: 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 Kaufman, 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 property with nonconforming FAR. The P&Z reviewed
the amendment on September 7 h 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 are
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 nonconformities. These additional criteria may be useful in
P&Z's discussion and are attached as Exhibit B.
Lastly P&Z requested a definition Carriage Houses. Carriage Houses are essential
larger 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 Aspen/Pitkin County Housing Guidelines.
• P187
The design standards of the ADU/Carriage House section of the code states:
An AD must contain between 300 and 800 net livable square feet, 10% 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 Kaufinan, 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 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 — Proposed Resolution
Exhibit B — Additional Criteria adapted from Historic TDR Program
2
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Exhibit B
Criteria adapted from Historic TDR Program
1. The development of a single-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 a single-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 nonconformity 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 a single-family or duplex residence, and shall not
include the potential of the Sending Site to gain Floor Area bonuses, exemptions,
or similar 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 a single-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 a single-family or duplex residence
(whichever is permitted) minus the amount of Floor Area transferred.
7. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a
square footage reduction from the allowable Floor Area for a single-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
confirmation of built Floor Area.
C
0
9 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 permit on the
Receiver Site, pursuant to Section 26.304.075, Building Permit, and the additional
development can be accommodated on the Receiver Site in conformance with all
other relevant requirements of the Land Use Code. The transfer of Floor Area
shall not permit the creation of a non -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 square 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.
CI
Pi90 Is
RESOLUTION NO. —
(SERIES OF 2004)
A RESOLUTION OF THE PLANNING AND ZONING COMIVIISSION OF THE
CITY OF ASPEN, COLORADO, RECOMMENDING DENIAL OF
AMENDMENTS TO SECTION 26.312.030.C.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, Kaufman Peterson Dishler
Attorneys, representing Leonard Lauder, property owner; and,
WHEREAS, the requested amendment is to Section 26.312.030.C.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 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, and
continued to October 5, 2004, took and considered public testimony and the
recommendation of the Planning Director and voted against, threes m favor to four
0 O-M 4 recommending adoption of the proposed amendments to the Land Use
PP � �. )' g
Code, as described in the land use application submitted by Gideon Kaufman.
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
0 0 P1 91
APPROVED AS TO FORM:
City Attorney
ATTEST:
Jackie Lothian, Deputy City Clerk
Planning and Zoning Commission
Resolution No. _, Series of 2004
PLANNING AND ZONING
COI\'MSSION:
Ruth Kruger, Vice Chair
Page 2
P192 •
ASPEN PLANNIl�iGLONIlGOSSYO1�..1Vlinutes
September b7, 201� ��-
COMMENTS►7 ........................................ ...rn... x.•.'.ri:.,rm"Tint r. �:�Y�t:f : ............... :::...... 2
1Y111V V 1T+S.......... ..............v r.i.. n.vw Yc:..... ..7....-. hF.4ifi': a:[T:'1:ri•:: :`:a::'S_:'::):::`.v"'i� .. '`:Y'. .::::.:':. ..... 2
DECLARATIONS OF CONFLICTS .OF INtER'EgT..................... ••y... ,. 2 .
INNSBR`[JCK INiV 1VIIN'O�R p ! TIMESHARE k9vw V"......................2
CODE AMENDMENT' ' TRANSFERAl3LE I)EvttOl1INT RIGHTS .............. 9
.
1
P1 93
pose roo"v*,tch Applicant shall join any future
oil and grease interceptor in the multi -pur
All exterior. improvement districts that. are formed to complete future Citye 06 approvedmprovements to. the adjoining/
surrounding right-of-ways. 24i
or lighting shall meet the -ofAspeii Lighting code pursuant
. to Land Use Code Section 26 5 . 75, 150,'Outdoor Lighting, as maybe amended .frOmtome totome 25..All_
design, installation, and maintenance of the pool and spa must Comply with the State of Colorado's
Pool ygqLshall be drained directly into the sanitary
"Swimming Pool and. Mineral Bath Regulations.
„The Applicant have vq the. Aspen Consolidated
b drained into the storm
sewer and e rai ed _ .!- _ ..:(a�d 1 before
spa before"installingihem.
Sanitation District approve rove the drain size for the swimming poo
Each owner of an estate shall have an undivided interest iqj recreational areas within the
.,
-facility, 27. The Applicant shall pay the applicable s . chool land dedication fees as determined by the City
ofAspen Zoning Officerprior to building" ermit issuance.. 28_31� that are not
p available for
y4ting- or promotional purposes shall be made avail.
used.by the Applicant for exc ange, ma
Qn. shall be included in the'PUDISub Agreement to
division
short-term rent until purchased. This conditi _?I -
b in the Pirkin County Clerk and
nd . Recorder's office. 29. Nothing in the timeshare documents
e recorded
shall prohibit short-term rentals or. occup tancy. it is the innt. of this condition that the non-deedW
rental purposes when not occupied by the purchaser or
restricted units shall bg..qy available for short-term. renY.
I : qz�l - - � u es documents to the City
its guests or uiij, h programs. The Applicant shall's'bmit timeshare documq
izedfor exchange
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 of signing up. to two (2) on -street, parking spaces
adjacent ng
drop-offparki for guests checking in and checking out. If
,
the Applicant chooses to sign up to two (2) on-street,parking spaces as short MIrop-0 arkingthey
d
J,
may sign the spaces either on Main Street or So yth.&pp�ikd p�iL�djby Dylan Johns.
Roll call vote: Ska4ron, yes; Rowland, yes; Johns, yes; Killi&r, no; Tygre yes..
APPROVED 44
PUBLIC HEA1?JNG:
7 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. I City Council i
ouncil.requested per Gideon
Kaufman this code,,-
the P&Z review; view t 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 in thi situation.the ADU was
100% exempt from the floor area. charge. The Lauder's built the main residence to
I R-aier said. after this was was a code change
the maximum.AQOT..4�4!. A! - Vdtthat required ADUS to bq dPtp�chqdpRd.ft0gqrgM�IgNemption was revQ'�unless it were c6ndprniniumized I toaworkinR resident. That was ha,. .
created non-
Lauder'pro�erty was a legally cre
made this property non -conforming; the d to convert the basement into livable
conforming ADU.'Thd applicant's wanted as 11 ed 1. th I e
exist where the Laude:ns
space. Staff identified 2 options that could e
_9p _0
size of their house in order to add to'the. floor WA.Mtthe AD or deed restrict and. U
sell the ADU and neither option was being sought by the applicant at this time.
9
P194 0
ASPEN PLANNING & ZONING COMIVIISSION - 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. Kaufman 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
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. 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.
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.
10
• - -- • P 19 5
ASPEN PLANNING & ZONING COMMSSION - 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 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 5-0.
Meeting adjourned at 7:00 p.m.
J
ckie Lothi , Deputy City Clerk
11
P19f .
ASPEN PLANNING.& ZONING COMIVIISSION-Minutes - October 05, 2004
COMMENTS........................... ..:.......................... ...... ...... n..................,......r::=s�:: 2
MINUTES.................. ....... ................. .
DECLARATIONS OF CONFLICTS OF INTEREST ..........................
CODE AMENDMENT-TDR'S................................................................ 2
LOT 1, ODEN LOT SPLIT STREAM MARGIN REVIEW .......................................... 4
707 E. HYMAN CONDITIONAL USE FOR COMMERCIAL PARKING LOT-... 5
• P197
& ZONING COMMISSION -Minutes —October O5, 2
Ruth Kruger opened the regular meeting of the Aspen Planning & Zoning
rdonCommission in Sister. Cities Meeting Room. Commissioners
were present ario Staff
Ruth Kruger, Jack Johnson, John Rowland and St
eve in attendance: David Hoe€er, Assistant City Attorney; Chris Bendon, Chris Lee,
James Lindt, Community Development; Jackie Lothian, Deputy City Clerk.
COMMENTS er in uired
Ruth Kruger hoped this meeting would adjourn by 6:45 p.m. Krug q
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 onBlli's.
MINUTES
MOTION: Jack Johnson moved to approve the minutes from July 27, August
03rd, I 1 th and 17`h, September ;1 and 21 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 9/21 . 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. 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 becausechanges, which has made this a non -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. Kaufman provided the criteria for P&Z to follow. 2
P198 •
ASPEN PLANNING & ZONING COTVIlGMSYO PNGutes _ MRober OS, bU
Ruth Kruger asked where the TDR was coming from. Kaufman replied that it was
from a free-market house that did not want to.use all of the'FAR allowed.
Kruger reiterated that Kaufinan 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 a free-market house to anADU.' 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 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 whaf(hris stated'for the
bonuses.
3
� ..... �..a'....— _— - - �•Y:=r..s...:ea'.�Y�'>�XJ:�...:+i+}:�dYY.1.^. rti.a..4:v+:-i..a. ..d. ..w. v...... .
• • Pi99
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 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
P200 0 •
• • 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
RE: Code Amendment — Section 26.312.030 — Non -Conforming Structures
Second Reading of Ordinance No. 35, Series of 2004
DATE: November 22, 2004
SUMMARY:
Gideon Kaufman, 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 area on a property that currently exceeds its maximum allowable floor area. 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 area 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 area use the fledgling Historic TDR
program. A new 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 area must accommodate the extent of the nonconformity plus the
expansion or only just the expansion floor area. 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 are being prepared and will be provided for
second reading.
1
P202
•
APPLICANT:
Gideon Kaufman, Kaufman Peterson Dishler Attorneys, representing Leonard Lauder,
property owner.
PREVIOUS ACTION:
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 area
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 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.)
2
• P203
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
it being
as non -inhabitable space (no wards floor ow wells)
rea propoto rtionately to the extent from they are
area. Basement levels count tow
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 area 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 caretaker. 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 were
ce construction n removed and the property rred tagged" by eturnedltol its
Department. The improvements
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
trThe 1Cityanew recently created la
development rights program is o
Historic TDR program to transfer floor area 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. a e
Historic TDR Program was established to facilitate an important community go
the preservation of historic resources — and a demand for Historic TDRs is critical for
the program's viability.
9
P204 •
The applicant has clarified the proposed text addressing whether or not the proposal is
to transfer only enough floor area to accommodate the expansion or if the intent is to
first accommodate the floor area 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 similar
code amendment which relies on the Historic TDR Program for transferring square
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 15` 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 property owner to
expand a non -conforming structure by transferring floor area from another property. The
proposed text does not clearly indicate whether the floor area by which the structure is
non -conforming (the overage) is to be part of the required floor area transferred. This
ambiguity needs to be corrected. Otherwise, the text will need to be interpreted prior to
its use. Staff does not believe this standard 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 character reasons,
and promoting affordable housing opportunities, especially by the private sector. This
code amendment could address both issues by transferring floor area 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
parcel.
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
emergency medical facilities.
staff comments page 1
P206 •
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 are 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 area has been developed. The flexibility for
ADUs is compatible with community character. The increase in allowable square footage
for a particular lot could be out of scale with surrounding properties and could be
considered out of character. Without a review process to determine the neighborhood
compatibility of each use of this code amendment, staff does not believe this standard 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 parcel.
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:
dilute the potential of the recently adopted Historic
This proposed amendment could
Transferable Development Rights Program. This would occur if any property could
become a sending site for floor area. 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 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.C.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.C.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 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, 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 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 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 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
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 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 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 a non -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.)
Ordinance No. 35, Series of 2004
Page 2
• P209
(2) 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) 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, 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 area from the sending property to the Mandatory
Occupancy ADU.
Section 2:
All material representations and commitments made by the developer pursuant n 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 of the remaining portions thereof.
Ordinance No. 35, Series of 2004
Page 3
P210 • •
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 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
Approved as to form:
John Worcester, City Attorney
Helen Kalin Klanderud, Mayor
Ordinance No. 35, Series of 2004
Page 4
• P211
MEMORANDUM
TO: Mayor Klanderud and Aspen City Council
THRU: Steve Barwick, City Manager
John Worcester, City Attorney
FROM: Chris Bendon, Community Development Director
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 regular 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 and discussion to permit up to 500
square feet to be transferred to a non -conforming property containing an Accessory
Dwelling Unit through the City's Historic TDR Program. This equates to two (2)
TDRs of 250 square feet each. The amended Ordinance also permits up to 500 square
feet to be transferred from a non -historic property to a non -conforming property
contain an ADU which is restricted to Mandatory Occupancy. There is no TDR
equivalency for this second option, only a square 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 square feet, equivalent to two TDRs of 250 square feet each. The
code amendment application, submitted by Gideon Kaufman, requests the ability to
transfer 500 square feet and the Applicant's recollection of the hearing is that the
ability to transfer 500 square 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 square
feet) to be transferred to a non -conforming property containing and Accessory
1
P212 0
Dwelling Unit and up to 500 square feet to be transferred from a non -historic property
to a non -conforming property 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 22' . 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 are 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 are 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."
ATTACHMENTS:
A — Proposed Ordinance 35, Series of 2004.
B — City Council verbatim minutes of 11.22.04 motion and discussion.
2
Regular Meeting Aspen City Council _ November 22, 2004
CITIZEN PARTICIPATION ..................................... 2
...............................................
COUNCILMEMBER COMMENTS •.••.••.• 2
................................
CONSENT CALENDAR..............................I.............. 3
• Resolution #122, 2004 — State Rehabilitation Tax Credits ..................................... 3
• Resolution #117, 2004 — Contract Parking Garage Equipment ...................... I....... 3
Minutes— November 8, 2004.................................................................................. 3
FIRST READING OF ORDINANCES ..................... .............................................. 3
• Ordinance #38, 2004 —Fees................................................................................... 3
• Ordinance #41, 2004 — Utility Rates....................................................................... 3
Ordinance #42, 2004 — Supplemental Appropriation ............................................. 3
• Ordinance 443, 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
Compliance With State Statute................................................................................... 5
RESOLUTION #115, SERIES OF 2004 — Bar/X Annexation.,... I .................... 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
Structures......................................... ............................................................................. 14
ORDINANCE #36, SERIES OF 2004 — Chart House GMQS Allocation .... 16
ORDINANCE #37, SERIES OF 2004 — Aspen Consolidated Sanitation
District PUD/Master Plan .....................................................................................17
RESOLUTION #118, SERIES OF 2004 — Adoption of 2005 Budget........... 20
RESOLUTION # 119, SERIES OF 2004 — 2005 Mill Levy ............................. 22
ORDINANCE #39, SERIES OF 2004 — Bar/X Annexation ............................ 22
ORDINANCE #40, SERIES OF 2004 — AMCORD/AVLT Annexation...... 22
1
P 214 �� _... ____�_ _...___ ._ .. _ _ 0
Regular 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 of non -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. Kaufman told
Council in order to acconunodate 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
• __ __.___._.a • P215
Regular Meeting Aspen City 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. 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. Kaufinan 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
P 216 0.... - 0
Regular Meeting Aspen 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 restored 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 23d. 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 Meeting Aspen City Council January 10, 2005
ASPEN PUBLIC FACILITIES MEETING....................................................................... 2
COUNCILMEETING........................................................................................................ 2
OUTSTANDING EMPLOYEE BONUS AWARD........................................................... 2
GIS PRESENTATION.................................................... 2
...
CITIZEN PARTICIPATION......................................................... ........................... I ... ... 2
COUNCILMEMBERCOMMENTS............:.......................................................I............. 3
CONSENTCALENDAR................................................................................................... 4
• Resolution #1, 2005 — Posting of Public Notices ................................................... 4
• Board Appointments............................................................................................... 4
o Wheeler Opera House Jim. Berdahl — Music Representative ................................. 4
oCCLC Terry Butler .................... ............................................................................ 4
.........................................
Shae Singer............................................................................ 4
DonSheele..................................................... 4
StanHagenga.................................................................................................................. 4
o P&Z Brian Speck, alternate................................................................................... 4
oHPC Michael Hoffman.......................................................................................... 4
............................... ...
o LLA Jeff Wertz .................................................................... 4
• Minutes — November 30, December 13, 2004........................................................ 4
SKI COMPANY SPECIAL EVENT SIGN VARIANCE REQUEST ............................... 5
FIRST 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.....................................................................................................I...I.............. 5
ORDINANCE #49, SERIES OF 2004 — Highland Villas 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
TDRsfor ADUs............................................................................................. 9
X GAMES WINTER CONCERTS NOISE VARIANCE ..................... I............................ 9
1
b rum __ - ONE
Regular Meeting Aspen CIWCoundl January 10, 2005
CLARIFICATION ON ADOPTION OF ORDINANCE #35, 2004 — Code
Amendment TDRs for ADUs
Chris Bendon, community development director, 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 a non -conforming ADU. The change
Council made at the meeting November 22 was to allow that square footage to come
from any property if the ADU is mandatory occupancy. Bendon said this 500 square feet
can be 2 historic TDRS or 500 square feet from a non -historic property. Bendon said the
amendment made at the November 22nd meeting is an improvement to the ordinance.
There are 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 square footage on
the property from 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 square 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 a two-day event in
conjunction with the X games and they thought Wagner Park would 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 earlier 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 areas and the tent will not block any views. The sponsor tent
is to the west side of the park.
Tom Rubel, parks 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 compaction if there is a wet, heavy snow and a lot
of people in the park. Laughren said they are working with the parks department to
alleviate these issues. There will be no wheeled vehicles in the park; they will use a
snowcat to bring in all equipment. They plan on grooming the park before the event,
which should set up and provide a hard snow surface.
Councilwoman Richards said it is appropriate that staff bring these issues to Council to
make decisions. Councilwoman Richards asked the cost to resod the park. Rubel said it
could be up to $60,000. Councilwoman Richards said she would like to support this to
find out how the park will stand up. Councilwoman Richards said she does not want to
6
0
k, P219
EXHIBIT D
MEMORANDUM
TO: Aspen Planning and Zoning Commission
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. _, Series 2008 — Public Hearing
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
Leonard Lauder, property owner and Chris and Lynn Seeman, ADU occupants.
PREVIOUS 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 allowable0 to add up to 500 square feet of floor area to an ADU.
P220
• f
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 area 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 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 3
• • ¢t P221
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 t •'' tlueughs- 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 standard 5 (no variance from setbacks can
be required), clarifies 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
26.312.030 (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:
EXHIBIT 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
P222 0
Chapter 26.310
4:11:
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 FindinM
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 AD 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 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 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.
• P223
StaffFindin
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.
Sta Finding
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 AD 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.
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 Finding
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 f nds 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
P224 0
• P225
41 I 1 0.3 1 IF. -
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
fiuthers 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 * being removedleelB like this. Text
being added is underlined and blue. Text being added looks like this. Text which is not
highlighted is not affected; and,
P226 •
40 0
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. 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. Historic structures. The enly 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
en}y second ethff 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 or- -c-afriage-house 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 saniage 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
herein. , b
Review a .,1 p „t to Chapter- 26n 3 n
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diti 1 t .1 f iti ♦' she a eta n ether- eta id e.7 n the land e
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a'
Development Rights, pursuant te QaPte
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TTa additiei -+& the t
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unit, as
apply + +. F Y +fnwi�umf fi e hundred
designated
pr-aeeder-es detailed in this Seetion.
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
property for the purpose of increasing the size of an ADU shall meet the IR
additien to the pe al r-eView er-iter-ia standards in Section 26.520.050. Design
Standards unless otherwise approved pursuant to Section 26.520.080. Special
Review, TDR inay he "rr"" pie as well as the
following additional review ef4efia 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.
ftof 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.
(4-)(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.)
(22)� 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) fA� The increased impacts from the larger size are outweighed by the
benefits of having a larger, more desirable ADU.
z
P 202 8 _ 0 0 0-
((6) (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.
(���terie�r-a�€e�le De—lepment fights, een�easur-Ae � he floor
4 �,
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(8) (7) For the transfer of allowable floor area • p `e five huridre-'
(500) square � 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 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:
AmTrue, Assistant City Attorney
ATTEST:
Jackie Lothian, Deputy City Clerk
Dylan Johns, Chair
r- -
P230 • •
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Aspen Planning & Zoning Commission Meeting Minutes — February 19, 2008
COMNIENTS..................................
DISCLOSURE OF CONFLICTS OF INTEREST....................................................2
CODE AMENDMENT PUBLIC NOTICE...............................................................2
CODE AMENDMENT REGARDING NON -CONFORMITIES ............................5
ASPEN CLUB CONCEPTUAL SPECIFICALLY PLANNED AREA ...................6
P232 •
• in Commission Meetin Minutes Februa 19 2008
Aspen Planning lz Zon�
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`h and
February S`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
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
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Asaen Planning & Zoning Commission Meeting Minutes — February 19, 2008
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.
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Aspen Planning & Zoning 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 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.
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Aspen Planning & Zoning Commission Meeting 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 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
E
P236
Aspen Planning& ZoningCommission MeetingMinuteFebrua 19 2008
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 `B 1" (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. Kaufman
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 410-08 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 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
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Aspen Planning & Zoning Commission Meeting Minutes — February 19, 2008
said that on March 0' 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 16 lots; 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 V2 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
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Aspen Planning & Zoning Commission Meeting 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.
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Aspen Planning & Zonin2 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 1/2 space
for each unit, all of these units have lock -outs with a total of 39 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
2
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Aspen Planning & Zoning Commission Meeting Minutes February 19,
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 41h; seconded by Brian
Speck. All in favor APPROVED.
Jackie Lothian, Deputy City Clerk
10
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SILVIA DAVIS 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.C.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.C.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 revieweo 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 action s 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 Development 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 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
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SILVIA DAVIS PITKIN COUNTY CO R 21.00 0 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
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 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 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 a non -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.)
Ordinance No. 35, Series of 2004
Page 2
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(2) 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) 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, 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 area 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 of the remaining portions thereof.
Ordinance No. 35, Series of 2004
Page 3
Aft 'lank,
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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 PUBLIS pro ided by law,
l�.y4he-City Council of the City of Aspen on the y day �'
`'.� Of 4 J�fy
S. I h. City Clerk Helen Kalin anderud, Mayor
IVC ORS"
FINALLY, adopted, passed and approved this vA�day of 6xk,
W f�
•
Helen Kalin an erud, Mayor
�v
A}iprol as to form:
ohn o cester, City Attorney
Ordinance No. 35, Series of 2004
Page 4
TO:
FROM:
THRU:
MEMO DATE:
MEETING DATE:
RE:
0 0
MEMORANDUM
Mayor Ireland and Aspen City Council
Jason Lasser, Special Projects Planner JL
Chris Bendon, Community Development Directo W1
March 17, 2008
March 24, 2008
Code Amendments to Section 26.312.030 (C) - Nonconforming
Structures — Ordinance No.1:11
Series 2008 — Is' Reading
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 Standards 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
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. 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 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
(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).
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 stri e+t,,.ouge"c 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 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), clarifies 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
26.312.030 (C), Extensions
RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE):
"I move to approve Ordinance No. -�7, Series of 2008, upon first reading".
ATTACHMENTS:
Page 3 of 4
•
U
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
• 0
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 fords 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. Text being mmeved looks like this Text
being added is underlined and blue. Text being added looks like this. Text which is not
highlighted is not affected; 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. 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. 'mar 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 ems} 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 e* second edwf exception to this requirement shall be for a property with a
detached Accessory Dwelling Unit (ADU) or Carriage House ("ADU") having a
mandatory occupancy requirement. Such a detached ADU
stnietufe-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 er eaFFiage 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 herein. by Chapter- 26.520, Accessory
Dwelling Units and CaFfiage Houses and Speeial Review .,l pursuant
Chapter- 26.434,
•
al
IN
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 property for the purpose of increasing the size of an ADU shall meet
the In addition to the speraial review srite;ie standards in Section
26.520.050, Design Standards, unless otherwise approved pursuant to
Section 26.520.080, Special Review, floor- -area frem- a-mmay be
appmved pufsumt te as well as the following additional review
standards:
M 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)Extinauishment of Historic Transferable Development Rip-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 26.535 for the procedures for extinguishing certificates.
NExtinguishment 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.
(4}(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).
(24 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) (3) The additional floor area creates a unit which is more suitable for
caretaker families.
(44 (4) The increased impacts from the larger size are outweighed by the
benefits of having a larger, more desirable ADU.
((6) (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.
(-i tei}e�Y-nis€eratile- Development Rights, eew.'nensur-ate with the
#leer area e p . , are -extinguished -purse to Chapter- 26.535 Histerie
tfansfer-able development rights.
(8) (7) For the transfer of allowable floor area f-etage up to five
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.*
•
*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
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. Stafffinds 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 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 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.
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Staff 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 �N ith the
community character in the City.
StaffFindings:
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 finds this
criterion to be met.
1. 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.
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ASPEN PLANNING-&ZONINC-CommissioN - Minutes
September 07, 2004
COMMENTS .................. 2
MINUTES
DECLARATIONS OF CONFLICTS OF INTEREST 2
INNSBRUCK INN MINOR PUD AND TIMESHARE REVIEW..... .......................... 2
CODE AMENDMENT - TRANSFERABLE DEVELOPMENT RIGHTS .............. 9
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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 Hoefer,
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 17th and 18th our
community .would host Park City visitors and the commission is invited to dinner
at Shlomo's on Saturday September 18th from 6-9pm.
MINUTES
Jasmine Tygre asked if the commission was prepared to approve the minutes from
July 271h, August 3rd, August IOth and August 17th. 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 10 two -bedroom suite and 2
one -bedroom suites for a total of 22 lock -off units and one voluntary affordable
housing unit on site. Allgaier said the applicant wanted to reconfigure the parking
ASPEN PLANNING & ZONING-COMVIIS510Y__Minutes
September 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 (0)
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 Street right-
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
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ASPEN PLANNING & ZONING COMMISSION - Minutes
September 07, 2004
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 2 guest -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 up per 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
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ASPEN PLANNING & ZONING COMMSSION - Minutes
September 07, 2004
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-in/checkout 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.
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September 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 a one -bedroom affordable housing unit,
with the following conditions: 1. A final SubdivisionIPUD 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 ice within 180 days of the final approval granted by the HPC and shall
include thefollowing: a) A final plat meeting the requirements of the City Engineer and showing:
easements, encroachment agreements and licenses (with the reception numbers) for 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:
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ASPEN PLANNING & ZONING COMMISSION-:1Vlinuies
September 07, 2004
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 off -site replacement or 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 Civil 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. 11 included herein. g.) A fugitive dust control plan to be reviewed and
approved by the Environmental Health Department, as detailed in Condition No. 15 included herein. S.
Throughout the structure, the Applicant shall install afire alarm system meeting the requirements of the
Fire Marshal. The Applicant shall also install afire sprinkler system that meets the requirements of the
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 andlor 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 County 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 shall occur prior to
issuance of a certificate of occupancy on the reconfigured and expanded lodge. 8. If the Applicant
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September 01, 2064
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 of a building permit, the Applicant shall record a deed restriction for
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
Staff prior to the completion of construction to establish mutually acceptable lease terms for employees
whose units are attached to the business. 10. The Applicant shall complete (prior to any of the remodel
work, including removal of drywall, 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 (6) inch thick reinforced concrete. The Applicant
shall also install a concrete driveway ramp meeting the City Engineer's standards from South Second
Street to the sidewalk that is to cross the alleyway.13. The Applicant shall pay the appropriate Street
Impact Fees to the City of Aspen 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. 15. 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 install
tree saving construction fences around the drip line of any trees to be saved subject to the following
provisions, a.) The City Forester or his/her designee must inspect this fence before any construction
activities commence. b.) No excavation, storage of materials, storage of construction equipment,
construction backf ll, foot or vehicular traffic shall be allowed within the drip line. 17... The Applicant
shall install 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 of Aspen Water System Standards, with Title 25, and with applicable standards of Title 8 (Water
Conservation and Plumbing Advisory Code) of the 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 activity is limited to the
hours between 7 a.m. and 7 p.m on Monday thru Saturday. 21... There will be no construction material or
dumpsters stored 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 room.
If determined to be necessary by the Aspen Consolidated Sanitation District, the Applicant shall install an
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ASPEN PLANNING & ZONING COMMISSION - minutes
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 26.575,150, Outdoor Lighting, as may be amended from time to time. 25. All
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 drained 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 in 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 units that are _not
used by the Applicant for exchange, marketing or promotional purposes shall be made available 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 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 of signing up to two (2) on -street parking spaces
adjacent to the Innsbruck Inn as short-term drop-off parking 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-off parking, they
may sign the spaces either on Main Street or South Second Street. SeCOi -ded, by Dylan Johns.
Roll call vote: Skadron, yes; Rowland, yes; Johns, yes; Kruger, no; Tygre yes.
APPROVED 4-1
PUBLIC HEARING:
CODE AMENDMENT — TRANSFERABLE DEvELUrNIEIN 1 Klt7n13
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
Kaufman 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 in 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 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 Lauders 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.
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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. Kaufman 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. Kaufinan 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 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. 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.
Kaufinan replied that there were a few properties and the. TDR would include
deed -restrictions but Historic TDRs could not be used for this program.
10
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. Kauffman 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 5-0.
Meeting adjourned at 7:00 p.m.
rckie Lothia , Deputy City Clerk
11
ASPEN PLANNING & ZONING COMMISSION -Minutes — October 05 2004
COMMENTS....................................................................................................................:.:....... 2
MINUTES.............................. :..............
.. y:...... 2
DECLARATIONS OF CONFLICTS OF INTEREST ......................... I.......I.................... 2
CODEAMENDMENT-TDR'S............................................................................................. 2
LOT 1 ODEN LOT SPLIT STREAM MARGIN REVIEW
707 E. HYMAN CONDITIONAL USE FOR COMMERCIAL PARKING LOT... 5
ASPEN PLANNING & ZONING COMMISSION -Minutes — October 05, 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 Elli's.
MINUTES
MOTION: Jack Johnson moved to approve the minutes from July 27, August
03rd I `h and 17`h, September 71h and 21" 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 9/21't. 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. 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 a non -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. Kaufman provided the criteria for P&Z to follow.
2
ASPEN PLANNING & ZONING COMMISSION -Minutes - October 05 2004
Ruth Kruger asked where the TDR was coming from. Kaufinan replied that it was
from a free-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 a free-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 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.
Q
9 •
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 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
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ASPEN PLANNING & ZONING COMMISSION -Minutes — October 05 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 apply for 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 Office that reconfigures the building envelope on the subject
parcel in a manner that would make the north and west sides of the building envelope follow Hunter
Creek's top of slope as established herein. 3. As a condition 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 Johnson. Roll call vote: Skadron, yes;
Rowland, yes; Johnson, yes; Marion, yes; Kruger, yes. APPROVED 5-0.
PUBLIC HEARING:
707 E. HYMAN CONDITIONAL USE FOR COMMERCIAL PARKCNG
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
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ASPEN PLANNING & ZONING COMMISSION -Minutes — October 05, 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 Fornell removed the A -
Frame building and graded the parking lot. Mr. Forriell 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. Fornell 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 a chain -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 Fornell 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 cars;
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.
R
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. Hoffman 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 C5 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.
Martell 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 121 ; seconded by
John Rowland. ALL INFAVOR, MOTIONAPPROVED.
Meeting adjourned at 7:05 p.m.
?cklie Lothian, D puty City Clerk
7
Aspen Planning & Zoning Commission Meeting Minutes — February 19, 2008
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
Aspen Planning & 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`h and
February S`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
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
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Aspen Planning& Zonin Commission MeetingMinut• February 19 2008
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.
U 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.
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Aspen Planning & Zonin2 Commission Meeting Minut• 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 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.
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Aspen Plannin & Zo•e Commission Meeting Minut• 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 9007-08 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
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Aspen Planninp_ & Zoninp_ Commission Meeting Minutes — February 19, 2008
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 "B 1" (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. Kaufman
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 #10-08 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
Aspen Plannin & Zonine Meeting Minutes — February 19 2008
said that on March 4t' 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 16 lots; 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 & Zoning Commission Meeting 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.
3
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 '/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 construction of
these units, the units themselves being energy efficient, the type of materials, the
Aspen Planning & Zoning Commission Meeting Minute•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: Cliff Weiss moved to continue the Aspen Club Conceptual SPA, PUD,
Timeshare and Commercial Design Review to March 41h; seconded by Brian
Speck. All in favor APPROVED.
Jackie Lothian, Deputy City Clerk
10
9
RESOLUTION No. 010
(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 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 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.
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.
�J
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
26.520.080Special Review, as well as the following additional 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 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.
0 •
(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 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 nonco orming structure and subject to nonconforming structure
replacement provisions. Densit fon 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
0
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 19th day of
February, 2008.
APPROVED AS TO FORM:
/51m�True, Special Counsel LJLJ E
ATTEST:
?ckie4L6othiaini, Deputy City Clerk
of
L�
ZONING COMMISSION:
ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: �W 4
,Aspen, CO
SCHEDULED PUBLIC HEARING DATE: 200 0'
STATE OF COLORADO )
) SS.
County of Pitkin )
I, eA_ Ge--� " (name, please print)
being or represe ting 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:
V 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 (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.
The f egoing "Affidavit of Notice" was acknowledged before me this I day
of , 200C, byr elp
WITNESS MY HAND AND OFFICIAL SEAL
7M ommission gxpires:
AlV' , A A i
otary Public
ATTACHMENTS:
COPY OF THE PUBLICATION
PHOTOGRAPH OF THE POSTED NOTICE (SIGN
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BYMAIL
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.mbefore the Aspen
Planning and Zoning Commission, Sisters City
Room, City Hall, 130 S. Galena St., Aspen, to con
sider a City initiated ordinance that amends regula
tions to nonconforming structures in Chapter
26.312 "Nonconformities'. The intent if the
amendments are to create an exemption for Ac
cessory Dwelling Units (ADU) and Carriage Hous
es 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
in�0 en Commument nart
ity
113S. Galena St., CO, (70)
429.2763, lasonl®ci.aspen.00.us.
st Dylan Johns, Chair
Aspen Planning and Zoning Commission
Published in the Aspen Times Weekly on February
3, 2008. (1116292)
MEMORANDUM
•
Ye•
TO: Aspen Planning and Zoning Commission
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. i0 Series 2008 — Public HearinIZ
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
1eenar+Lauder, property owner and Chris and Lynn Seeman, ADU occupants.
�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 to add up to 500 square feet of floor area to an ADU.
Page 1 of 3
• 0
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 area 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 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 3
0 •
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 str-i ethf ,ug in
red for removed text and underlined blue shadjRg 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 standard 5 (no variance from setbacks can
be required), clarifies 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
26.312.030 (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:
EXHIBIT 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
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.
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. 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
26.520.080Special Review, as well as the following additional 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 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.
• 0
(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 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
0 0
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
52008.
APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION:
JimTrue, Assistant City Attorney Dylan Johns, Chair
ATTEST:
Jackie Lothian, Deputy City Clerk
0
Chapter 26.310
EXHIBIT A
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 Stafffinds 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 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.
Staff 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.
Etaff 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 AD 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 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.
Etaff 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.
•
•
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. Text being removed leeks like this-. 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
• 0
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. 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.
1. Historic structures. The eta 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.
3 2. Mandatory occupancy Accessory Dwelling Units and Carriage Houses. The
e* second ether exception to this requirement shall be for a property with a detached
Accessory Dwelling Unit (ADU) or Carriage House ("ADU") having a mandatorx
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 of earFiage helise 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. ; Cwaptof 26.520, n eeessef:y Dwelling Units and C..... iage Reuse. and Spe
Page 2 of 5
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 maxi►num floor area of a
property for the purpose of increasing the size of an ADU shall meet the 1*
sr-itefia standards in Section 26.520.050, Design
Standards, unless otherwise approved pursuant to Section 26.520.080. Special
Rex ieN\ . PHFSHalit to as well as the
following additional review cfiteFia 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 rniti atg ed 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.
(4-)(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.)
R�—T 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) (3) The additional floor area creates a unit which is more suitable for
caretaker families.
(4) (4) The increased impacts from the larger size are outweighed by the
benefits of having a larger, more desirable ADU.
area appFON'ed though this Seetion ef the Code.
Page 3 of 5
•
((6) (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.
(S) Q For the transfer of allowable floor area square footage up to flive hundfed
(500) square 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. 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:
JimTrue, Assistant City Attorney
ATTEST:
Jackie Lothian, Deputy City Clerk
PLANNING AND ZONING COMMISSION:
Page 5 of 5
Dylan Johns, Chair
i & ZONING COMMISSION - Minutes
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 26.575.150, Outdoor Lighting, as may be amended from time to time.' 25. All
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 drained 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 in 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 units that are not
used by the Applicant for exchange, marketing or promotional purposes shall be made available 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 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 of signing up to two (2) on -street parking spaces
adjacent to the Innsbruck Inn as short-term drop-off parking 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-ojfparking, they
may sign the spaces either on Main Street or South Second Street. Seconded. by Dylan Johns.
Roll call vote: Skadron, yes; Rowland, yes; Johns, yes; Kruger, no; Tygre yes.
APPROVED 4-1
PUBLIC HEARING:
CODE AMENDMENT — TRANSFERABLE DEVELOPMENT RIGHTS
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
Kaufman 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 in this situationythe 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 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 Lauders 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
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. Kaufman 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. Kaufinan 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. 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.
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.
10
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 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 5-0.
Meeting adjourned at 7:00 p.m.
#ckie Lothia , Deputy City Clerk
11
ASPEN PLANNJNG & ZONING COMMISSION -Minutes — October 05,200
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 Elli's.
MINUTES
MOTION: Jack Johnson moved to approve the minutes from July 27, August
03rd 11 `h and 17`h, September 7`h and 21" 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 A_VIENDMENT-TDR'S
Ruth Kruger opened the continued public hearing on the Code Amendment; Chris
Bendon noted this was a continued hearing from 9/21 st. 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. 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 a non -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. Kaufman provided the criteria for P&Z to follow.
2
•
ASPEN PLANNING & ZONING COMMISSION -Minutes — Uctober 0� 2004
Ruth Kruger asked where the TDR was coming from. Kaufman replied that it was
from a free-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 a free-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 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.
•
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 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
Reizular Meeting Aspen City Council November 22, 2004
Council agreed to continue the list of design options to December 141h
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 of non -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. Kaufman 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
Regular Meeting Aspen City 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. 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 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 staffs recommendation
incorporating the historic TDRs. This would dilute the benefit of historic
properties.
15
.._..---...---.— - - —..-. •
Regular Meeting Aspen 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 restored 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,d. 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
lid .. ♦ �I
•
•
Davis Horn Mc, -
PLANNING & REAL ESTATE CONSULTING
October 1. 2007
Jason Lasser
Chris Bendon
City of Aspen Community Development Department
130 S. Galena Street
Aspen, CO. 81611
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 you 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. Thank you for your assistance with this matter.
Sincerely,
DAVIS HORN INCORPORATED
n 4— 4,t Vw;
ALICE DAVIS AICP
RFCFIVED
KJ n ; t 2007
CITY OF ASPEN
COMMUNITY DEVELOPMENT
ALICE DAVIS AICP S GLENN HORN AICP
215 SOUTH MONARCH ST. SUITE 104 • ASPEN, COLORADO 8161 1 •970, 925-6587 - FAX: 970 925-5180
adavis(carof.net ghorna- rof.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.
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 of the
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 maybe 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.
C. 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 may be 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. 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.
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.
-4-i r gf
2. 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 may be 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. seWrd CA-0 U
3. Accessory Dwelling Units and Carriage Houses. The only other exception to this reqjrement
shall be for a property with a detached accessory dwelling unit >j or Carriage HouseSuch 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.
-Flbo f
If the impacts of the expanded use cannot be sufficiently mitigated otherwise, an additional method for a feCL
mitigating those impacts and other impacts considered in the land use review, is to extinguish Histoft a f)afher
Ti ainftr able , P rofe_F4 y
up - o a_
max; m txn
an ABIH deed -re ly an ADU unit that is deed -restricted 01-' 50D
as a mandatory occupancy unit, shall have the option to apply to transfer up to a maximum of 500
square feet from a non -historically designated property that has sufficient available floor area pursuant 5q Va r oe
to the special review procedures detailed in this section. -Epp i I^
�tnd
anda5 2x-I-i r19 v► s hid
Drdvr lU
In addition to the special review e4writt in Section 26.520.080, floor area frmn-a�Dl� may be
approvec�ursuant to the following additional review criteria: A +ran S'fu
-Etar {ran sfe r +v an ADU 15- 4mard 5 +Fof
(1) The additional floor area is a conversion of existing square footage which was not previously '_�rr5hM
counted in floor area (Example: storage space made habitable) or -'(twr ate'
to -{file
�e additional floor area creates a more desirable, livable unit with minimal additional impacts to A7D U
the bulk and mass of the ADU structure. depA
ri
(2-) CO. The c�ed� The additional floor area creates a unit which is more suitable for caretaker families. Q S
The increased impacts from the larger size are outweighed by the benefits of having a larger, more %n�dQ�ry
desirable ADU. O cto p oe 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
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.
C)M Awith-the floor area expans re-
7 Transferable-Deve}opmrnfRigrts-
()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 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.*
*A duplex or two single-family residences on a substandard parcel in a zone district permitting such
use is a non -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
0 0
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 of Non -conforming structures as discussed
in Section 26-312.030 ( C) of the Code. The extension of a non -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.
The specific Code language proposed is attached. The Code section being modified is Section
26-312-030 ( C) titled Nonconforming structures: Extensions. The Extension 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
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.
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. Historic structures. The firsiexception to this requirement shall be for a structure
uc 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.
3. Accessory dwelling units and carriage houses. The second exception to this
requirement shall be for a property with a detached accessory dwelling unitpr_carriage -
house "A( DU") . Such a detached ADU or carriage house structure may be enlarged or
expanded by up to five hundred 500) square feet of floor area, provide that this bonus
floor 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
26.520, 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 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 of mitigating those impacts and other impacts considered in the land
use review is to extinguish. floor area on another property up to a maximum of 500 square—.,'
feet in order to transferthat extinguished floor area to the ADU deed restricted as a
mandatory occupancy unit.
,Qnly_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 (500) square feet from a
Deleted: only
Deleted: only other
Deleted: (ADU)
I Deleted: Historic Transferable
Development Rights, pursuant to Chapter
26.535, up to a maximum of five hundred
(500) square feet
Deleted: 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
Deleted: 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 standardsin Section 26.520.080, extinguished floor area_
be Deleted: eritena
jnay approved for transfer to an ADU pursuant to the following, additional review Deleted: Boni a TAR
standards
- - -- — — '--------- — — — Deleted: tntcria
(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.) or_ Deleted:
4he additional floor area creates a more desirable, livable unit with minimal Deleted:
additional impacts to the bulk and mass of th e ADU structure.
(?) The additional floor area creates a unit which is more suitable for caretaker Deleted: 3
--------------------------------------------------------------------------------------------
families.
(3) The increased impacts from the larger size are outweighed by the benefits of
Deleted: 4 —�
having a larger, more desirable ADU.
(4) No variance from setbacks can be required to accommodate the bonus floor ----
--- Deleted: 5
area approved though this Section of the Code.
(�)The area and bulk of the ADU structure, after the addition of the bonus floor
- -- -- ------------------------
- Deleted: 6
area, must be compatible with surrounding uses and the surrounding
J
neighborhood.
J(ti) For the transfer_ of allowable square footage up to five hundred (500) square
Deleted: (7) Historic Transferable
feet from a non -historically designated property to an ADU deed -restricted as a
Development Rights, commensurate With
mandatory occupancy unit, the applicant shall record an instrument in a form
the floor area expansion, are extinguished
pursuant to Chapter 26.535 - Historic
acceptable to the City Attorney removing floor area from the sending property to
transferable development rights.¶
the mandatory occupancy ADU.
4
Deleted: s
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.*
*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)
0 0
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 "Nonconformit'es". The intent if the
amendments are to create an exemption for Accessory Dwelling Units a i tarriage 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 CityS
Room, City Hall, 130 S. Galena St., Aspen, to consider a City initiated ordinance that a ad i ; ,
regulations to nonconforming structures ge'
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
Published in the Aspen Times on February 3, 2008
City of Aspen Account
506210
Page: I of 4
01//20/2005 01:401
SILVIA DAVIS 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.C.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.C.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 reviewe4 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 Development 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 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
I 506210
Page: 2 of 4
I 1
0 If(Ill 1 M2 005 P 1.
SILVIA DPVIS PITKIN COUNTY CO R 21.00 0 0.00 401
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
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 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 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 a non -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.)
Ordinance No. 35, Series of 2004
Page 2
5062?0
Pag*: 3 of 4
SILVIA DAVIS PITKIN COUNTY CO R 21.00 1/20005 D20.00 1.401
(2) 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) 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, 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 area 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 of the remaining portions thereof.
Ordinance No. 35, Series of 2004
Page 3
506210
Page: 4 of 4
01/20/2005 01:401
SILVIA DAVIS PITKIN COUNTY CO R 21.00 D 0.00
Section 5:
A public hearing on the Ordinance was held on the 22nd 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 provided by law,
IZy the -City Council of the City of Aspen on the y day -
100,900
Helen Kalin Kranderud, Mayor
-1L unI%-
6k,&, J'W
FINALLY, adopted, passed and approved this Aday of
`\`.ttOft: �.S'0fi
W-RF"W7."
ch, City Clerk
Appro'; as to form:
/i
ohn Word City Attorney,
Ordinance No. 35, Series of 2004
Page 4
Helen Kalin Klan erud, Mayor
0
0 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
26.312.030 (
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:
Name: Ehri5 *- 4—vino 5 ►'1
Location: LOn n A "
Indicate street a dress, lot & block number, legal description where appropriate)
Parcel ID # REQUIRED)
;PRESENTATIVE:
Name: (J 15 (Videon KOLL14man
Address: a % 5 (A .911
Phone #: j - s$ - G
OJECT:
Name: -(or ill na fftructure
Address: Lo C4 i Q r\ j 2 — 3 0-)
Phone #:
YPE OF 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/
Margin, Hallam Lake Bluff,
condominiumization)
Expansion
Mountain View Plane
Cod
❑
Lot Split
ElTemporary
Use
Other: C
❑
Lot Line Adjustment
ElText/Map
Amendment
A m�0 lit
XISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.)
DPOSAL: (description of proposed buildings, uses, modifications, etc.)
rnC1V_ a ngAd m RL -fry cldr- ffi l Qh a 0 i Q 1Q
Have you attached the following? FEES DUE: $1,�to
❑ 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 Standard lNdO ditdt .111NfiWIN00
All plans that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of adQdS1V _-J0 Am
text (Microsoft Word Format) must be submitted as part of the application.
C13AI3338
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 26.312.030C (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 if these are what you had in mind-
>J
>JasonLasser
> City of Aspen I Planner
> Community Development Department
> 130 S. Galena St. I Aspen, CO 81611
> 970.429.2763 1 www.aspenpitkin.com <http://www.aspenpitkin.com>
1
•
C�
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 ADUD An Stan
ND
DESCRIPTION: The Applicant would like toa basement in�t� he ADU which requires special
review approval se Co(Te
C) _S*DUs.
Land Use Code Section(s)
26.304 Common Development Review Procedures
26.520 Accessory Dwelling Units
1,6.4,30 - �t AL, #lty"
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)
Total Deposit: $1,510.00
To apply, submit the following information:
l . 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 I I" vicinity map locating the parcel within the City of Aspen.
8. Site Improvement Survey.
9. Proposed Floor Plans.
10. Proposed Elevation Drawings.
I l . 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,� XCopies of the complete application packet and maps. 14PC = 12; PZ = 10; GMC = PZ+5; CC = 7; Referral
1 Agencies = 1/ea.; Planning Staff= 1
Disci imer:
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.
�VkSt ^ CA Fil►-
t�tAl�
� D • �p U P�
E
E
PLANNER:
PROJECT:
REPRESENTATIVE:
OWNER & ADDRESS:
TYPE OF APPLICATION:
DESCRIPTION:
CITY OF ASPEN
PRE -APPLICATION CONFERENCE SUMMARY
Jason Lasser, 429-2763 DATE: 3.27.07
850 Roaring 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.C.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.C.3 of the Aspen
Land Use Code- Nonconforming Structures.
Missing language from Section 26.312.030.C:
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 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 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 a non -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.
(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) 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 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 52365 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 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.
❑ ALOCopies of the complete application packet and maps.
HPC = 12; PZ = 10; 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.
1+ • 0
❑ 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 MOM' 12:04 FAX 0 0 Z001
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
AertelgSnt�ayme t of City gLAAspen Development Aoalieation Feri
CiTY OF ASPEN (heroinaftcr CITY) and rhri 5 w Lynn .50- mctn
(hereinafter APPLICANi7 AGREE AS FOLLOWS,
APPLICANT has submitted to CiTY an application for
(hereinafter, THE PROJECT)
SAdnsn c1
-to 5eclion 2-1.• 31.2.030
2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000)
establishes a fee structure for Land Use applications and the payment of all processing fees is a condition preoedcnt
to a determination of application completeness,
3. APPLICANT and CITY agree that because of the site, nature or scope of the proposed project, it
is not possible at this time to ascertain the Ail) extent of the costs involved In processing the applioation.
APPLICANT and CiTY further agree that it is in the interest of the pafies that APPLICANT make payment of at
initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis.
APPLICANT agrees additional costa may accrue following their heanngs and/or approvals APPLICANT agrees he
will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the
CITY when they are necessary as coats are incurred. CITY agrees it will be benefited througb the greater certainty
of recovering its full costs to process APPLICANT'S application.
4. CITY and APPLICANT hirther agree that it is impracticable for CITY staff to complete
processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning
Commission and/or City Council to make legally required findings for project consideration, unless current billings
are paid in full prior to decision.
5 Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect
full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit In the
ainount of s_!, k1_Q — which is for hours of Community Development staff time, and if actual
rococded costa exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse
the CITY foe the processing of the application ntentioned above, including post approval rtzview at a rate of $235.00
per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billlnt date.
APPLICANT further agrees that failure to pay such accrued costs shall be grounds fbr suspension of processing, and
in no case will building permits be issued until all oosts associated with case processing have been paid
CITY OF ASPEN APPLICA
Chris Hendon
Community Development Direeter pale, 1�0r--fobe r
Bi0 To Mailing Address and Telephones Number:
RECEIVED
OrT .,- b 7007
GI rY OF ASPEN
COMM01: , Y JFVELOPMENT