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HomeMy WebLinkAboutminutes.council.20091123Regular Meeting Aspen City Council November 23, 2009 COUNCIL MEETING ................................................................................................... ..... 2 CITIZEN COMMENTS ................................................................................................ ..... 2 COUNCILMEMBER COMMENTS ............................................................................. ..... 3 CONSENT CALENDAR .............................................................................................. ..... 3 • Appointment to Kids' First Board -Richard Nedlin ......................................... ..... 4 • Resolution #98, 2009 -Gymnastics Agreement ................................................ ..... 4 • Resolution #99, 2009 -Amendments to Burlingame Covenants ...................... ..... 4 • Minutes -November 9, 2009 ............................................................................. ..... 4 ORDINANCE #26, Series of 2009 - 630 E. Hyman Landmark Ordinance 48 Negotiation ........................................................................................................................................ ..... 4 ELECTION COMMISSION ......................................................................................... ..... 5 ORDINANCE #25, SERIES OF 2009 -Supplemental Appropriations ....................... ..... 6 RESOLUTION #94, SERIES OF 2009 -ADOPTION OF 2010 BUDGET ................ ..... 6 RESOLUTION #95, SERIES OF 2009 -Adoption of 2010 Mil Levy ......................... ..... 9 ORDINANCE #24, SERIES OF 2009 -Sales Tax Revenue Bonds ............................. ..... 9 RESOLUTON #52, SERIES OF 2009 -Lift One Lodge Conceptual PUD ................. ..... 9 RESOLUTION #100, SERIES OF 2009 - 980 Gibson Code Interpretation Appeal.... ... 16 1 Reeular Meetine Aspen City Council November 23, 2009 Mayor Ireland called the meeting to order at 4:05 p.m. with Councilmembers Torre, Romero, Skadron, and Johnson present. Councilman Skadron moved to go into executive session at 4:05 p.m. pursuant to C.R.S. 24-6-402(4)(a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest and (b) Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions; seconded by Councilman Torre. All in favor, motion carried. Also present were Kathryn Koch, John Worcester, Steve Barwick, Jim True, Barry Crook, Stephen Ellsperman, Brian Flynn, Jeff Woods, Fred Peirce, Boots Ferguson, Sarah Shaw, Dale Will, Phillip Jeffreys and Charlie Eckhart. At 4:45 p.m. Stephen Ellsperman, Brian Flynn, Jeff Woods, Fred Peirce, Boots Ferguson, Sarah Shaw, Dale Will, Phillip Jeffreys and Charlie Eckhart left the meeting. Councilman Skadron moved to come out of executive session at 5:10 p.m.; seconded by Councilman Johnson. All in favor, motion carried. COUNCIL MEETING Mayor Ireland called the regular meeting to order at 5:25 p.m. with Councilmembers Skadron, Romero, Johnson and Torre present. Mayor Ireland noted that the 3 minute limit on citizen comments has not been adhered to very well. Mayor Ireland said he would like to enforce the 3 minute limit and if the comment requires more, the topic could be added to the agenda or to a later agenda. Councilman Skadron supported standing firm on the 3 minute public comment. Councilman Romero stated he would defer to the Mayor's position of trying to keep to 3 minutes. Councilman Johnson said the 3 minute limit makes sense for a topic not on the agenda. Councilman Torre stated he respects the Chair's ability to make decisions about the length of citizen comment. Mayor Ireland asked the public to strive to limit their comments to 3 minutes or to get prior permission to go over 3 minutes. 1. Gram Slaton, director Wheeler Opera House, told Council the Wheeler put on an event last weekend for the benefit of Lift Up, featuring the Crystal Palace Players. Slaton said the entire ticket sales went to Lift Up and there was a silent auction. The benefit to Lift Up will be around $15,000 and it was a great community event. 2. Emzy V eazy agreed that citizens' comments should be kept to 3 minutes and if it needs to be longer, the comments should be submitted in writing to the city clerk. 3. Chip Cummins, director ARE Day, told Council several Aspenites have been invited to partner with the Norwegian delegation and go to Copenhagen to the Climate conference. Cummins asked if there is anything they can take from the City representing their leadership role in global warming to get a hold of him. Regular Meeting Aspen City Council November 23, 2009 4. Andrew Kole announced this week is the 120`h anniversary of the Hotel Jerome which is being celebrated with an old fashioned party and the proceeds to go the Aspen Historical Society. COUNCILMEMBER COMMENTS 1. Councilman Johnson thanked the community for coming out and supporting the Aspen Skiers' football game last weekend. Councilman Johnson said there were about 3500 people attending the game. Councilman Johnson noted the World Cup races are this week, an exciting event for Aspen. 2. Councilman Romero thanked the Wheeler and the community for the efforts in support of Lift Up. There are charitable organizations doing a good job to reach out to those in need in the Roaring Fork Valley. 3. Councilman Romero thanked Phyllis Bronson for sharing with the community and a wonderful service for her late husband, Jesse Boyce. It was an impactful event. 4. Councilman Romero thanked Dan Glidden and other veterans for putting together the Veteran's Day celebration which was attended by Representative John Salazar. 5. Councilman Torre said the high school football team represented Aspen wonderfully and the team was excellently coached. 6. Mayor Ireland thanked Phyllis Bronson for asking him to speak at Jesse Boyce's memorial service. Mayor Ireland said he was moved by the spirit of Aspen represented at that service. 7. Mayor Ireland said Representative John Salazar is a veteran. In the House, he voted for health care reform and helped to move that along. 8. Mayor Ireland noted ACRA is considering protesting the National Chamber of Commerce's resistance to climate change. 9. Mayor Ireland stated the football game was sweet sorrow as the seniors played their final game. They held their heads high. Many, many members of the community were there to lend their spirit and support. 10. Councilman Romero reported the RFTA Board ratified the 2010 budget; it is a balanced budget including small fare increases, pass increases, and some route cutbacks. There is a small capital reserve fund for repairs to the trails throughout the valley. CONSENT CALENDAR Councilman Johnson pulled Resolution #98, Series of 2009, to clarify the intent is change the agreement to allow fees increase by 5% or cpi whichever is greater. This is an annual Regular Meeting Asaen City Council November 23, 2009 adjustment. John Worcester, city attorney, stated that language will be added before the agreement is signed. Mayor Ireland moved to approve the consent calendar indicating that in Resolution #98, to specify 5% is an annual limitation; seconded by Councilman Romero. The consent calendaz is: • Appointment to Kids' First Board -Richard Nedlin • Resolution #98, 2009 -Gymnastics Agreement • Resolution #99, 2009 -Amendments to Burlingame Covenants • Minutes -November 9, 2009 All in favor, motion carried. Councilman Torre asked about the board openings listed in a memorandum. City Clerk Kathryn Koch told Council these openings have been advertised for and the deadline is closed. Council scheduled interviews with these applicants November 30`". Mayor Ireland asked if any boards have only one application. Ms. Koch said P&Z has only one applicant, Jasmine Tygre. Mayor Ireland asked if Council wanted to interview Ms. Tygre. Councilman Skadron moved to appoint Jasmine Tygre to P&Z; seconded by Councilman Tone. All in favor, motion carried. Councilman Johnson left the room due to conflict of interest. Councilman Romero moved to reconsider Resolution #96, Series of 2009, extension of vested rights; seconded by Councilman Torre. All in favor, motion carried. Mayor Ireland moved to continue Resolution #96, Series of 2009, to December 7`"; seconded by Councilman Romero. All in favor, motion carried. ORDINANCE #26, Series of 2009 - 630 E. Hyman Landmark Ordinance 48 Negotiation Amy Guthrie, community development department, told Council this is a commercial building built in 1969 by Jack Crandall. The building was designed by Tom Benton, a local artist. The new owners are interested in refurbishing the building. The new owners have plans to sell units to existing tenants and to add a residential unit. The owners are offering an Ordinance #48 negotiation on the size of a residential unit and some city fees. Councilman Skadron asked if this is being brought forward as a historic designation in order to secure benefits. Ms. Guthrie said there are standard benefits for historic designation for which the applicants will be eligible. They are also aware of benefits that 4 Regular Meeting Aspea City Couucil November 23, 2009 may be negotiated through Ordinance #48. Greg Hills, applicant, told Council he does not like to teaz buildings down but to rehabilitate them and bring life to the buildings. Hills said this is an important structure for the community. Councilman Skadron asked to what degree the rooftop addition diminishes the building's historic integrity. Ms. Guthrie said there will be an azchitectural presentation at second reading. There were 3 meetings with HPC, who discussed the rooftop addition and how to design it in a way that is appropriate to the building. Ms. Guthrie told Council there is a scoring system to evaluate the integrity of the building and this building has scored 99 out of 100 because it is unaltered. Staff has thought about the impact of an addition because they do not want to destroy the integrity of a building. Ms. Guthrie said the building does need to be rehabilitated. Hills said they have worked to minimize the addition to the building but it will have an impact. Councilman Skadron asked how the building might be altered if historic designation is not received. Hills said there will have to be significant alternation in order to continue this is a commercial and office building. Councilman Romero moved to read Ordinance #26, Series of 2009; seconded by Councilman Johnson. All in favor, motion carried. ORDINANCE #26 (Series of 2009) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING LANDMARK DESIGNATION AND A 500 SQUARE FOOT INCREASE IN THE CAP FOR RESIDENTIAL UNIT SIZE FOR THE SITE SPECIFIC DEVELOPMENT PLAN OF THE PROPERTY LOCATED AT 630 E. HYMAN AVENUE, LOTS R AND S, BLOCK 99, CITY AND TOWNSITE OF ASPEN, COLORADO Councilman Romero moved to adopt Ordinance #26, Series of 2009, on first reading; seconded by Councilman Skadron. Roll call vote; Councilmembers Torre, yes; Romero, yes; Skadron, yes; Johnson, yes; Mayor Ireland, yes. Motion carved. ELECTION COMMISSION Mayor Ireland said he would like Council to add to the agenda consideration to solicit members for the election commission whose terms expired under the Charter. Councilman Skadron moved to add election commission members to the agenda; seconded by Councilman Romero. All in favor, motion carried. Mayor Ireland moved to put out advertisement for persons interested in serving on the election commission through July 2011; seconded by Councilman Torre. Mayor Ireland said this is necessary because according to the Charter the terms of the Election Commission expired in July 2009. Regular Meeting Aspen City Council November 23, 2009 All in favor, motion carved. Mayor Ireland asked about the newspaper headline stating the city was violating their rules by considering appropriating additional money to ACRA although this will not be done unti12010 and the city will not know whether they need additional appropriations or not. Don Taylor, finance director, agreed that refers to the 2010 budget and the request to amend the budget to include an additional $500,000 for destination marketing. This is included in the 2010 proposal. Taylor said the financial policies require staff to come back with a plan to show how the reserve will be replenished to the minimum level. Taylor noted when the carry over appropriation is presented in February 2010 that will be addressed. ORDINANCE #25, SERIES OF 2009 -Supplemental Appropriations Councilman Romero moved to adopt Ordinance #25, Series of 2009, on second reading; seconded by Councilman Johnson. Mayor Ireland opened the public hearing. Councilman Johnson asked about the 12 Days of Aspen and whether that was part of the $200,000 stimulus money. Councilman Romero said that event is a 2009 event not covered by the stimulus money. Mayor Ireland agreed Council has not decided whether to spend the entire $200,000. Mayor Ireland closed the public hearing. Councilman Torre asked about the expenditure for McKinstry energy project. Councilman Romero said this was agreed upon in a work session several weeks ago. Roll call vote; Councilmembers Skadron, yes; Tone, yes; Johnson, yes; Romero, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #94, SERIES OF 2009 -ADOPTION OF 2010 BUDGET Don Taylor, finance director, told Council this budget is short the target of $624,000 for the advance the city agreed to make to ACRA for destination marketing. The financial policies require a plan to refill the reserves within a 3-year period. Taylor noted within the 3 years, the budget will be $287,000 short of the target and this shortfall can be met by working on some alternatives. Councilman Johnson asked what the alternatives might be. Taylor said staff has discussed deferring capital improvements beyond 2012; the employee housing transfer could be adjusted; departmental savings could be adjusted. Steve Barwick, city manager, told Council the expenditures will probably be under budget and this maybe take care of the shortfall. Taylor reminded Council they held 8 public meetings on the 2010 budget. The total appropriations are $91,732,000 on $85,660,000 in revenues for 2010. There will be a $6 Reeular Meeting Aspen City Couucil November 23, 2009 million reduction in fund balance in 2010, which is not an alarming number with $56 million in reserves which is about 60% of the total appropriations. The city reserves are very strong. The net appropriations is down 25% over the 2009 original budget. Adjustments were made in the budget in order to get the city in line with available revenues. The operating component of the budget is $46,681,000 mostly in the general fund. Mayor Ireland said he would like to know how much money the city spends on health care. Councilman Torre moved to adopt Resolution #94, Series of 2009, adopting the 2010 budget; seconded by Councilman Skadron. Mayor Ireland opened the public hearing. Mike Maple thanked the city for the leadership in suggesting to other taxing district to keep their revenues at 2009 levels by lowering their mill levies. Maple reported the Aspen Valley Hospital and Historic District will be the same as 2009; the fire district will also be the same. The School District creates a fixed amount to collect rather that go up and down with the mill levies. Maple stated he is disappointed that CMC will likely take full advantage of the increased valuations to produce increased revenues. Maple presented a chart showing that the Pitkin County open space tax has increased 200% and it is not clear whether the mill levy will be reduced in this azea or not. Maple said he would like to see a comparison of the 2009 budget as adjusted to the 2010 budget rather than the origina12009 budget. Maple noted the revenues aze down 14%; however, the operating expenditures are proposed to be reduced only 7%. Maple said that does not seem like a sustainable operation. Maple thanked Council for approving $762,000 in grants for 2010; these organizations do an extraordinary job of spending their money well. Maple requested Council consider a modification to grants to try and include all support to organizations outside grants, like transportation, reduced rent, parks maintenance. Maple noted that the Aspen Music Festival takes over the Wheeler for 10 weeks and asked if this is shown anywhere as a contribution. Maple questioned what support from the city organizations like Sister cities and world cup receive. Maple told Council he is not opposed to the expansion of the Wheeler nor is he critically concemed about the azchitecture. Maple noted the expansion of the historic Jerome was very successful. Maple said he is concerned about how the planning for the Wheeler expansion has been going. Maple told Council he has reseazched this topic and one issue is why the city is doing this. Maple said the only thing he found in writing is "the arts community has been waiting for 30 years", which is a place to start and to move forward from. Maple said the city a vision of the existing theatre and the new facility and a corresponding operating plan for both the current facility and for the proposed facility. Maple recommended a third party feasibility and utilization study based on a solid vision of what the community wants to see done with the existing and proposed facility. 7 Reeular Meetine Aspen City Council November 23, 2009 Maple said he is concerned about a $3 million place holder and that spending that money before there is a solid plan and before there is a public vote is ill considered. That expenditure could turn out to be wasted. Maple said estimation can be done without full blown construction documents and without spending $3 million. Maple pointed out the art museum was just turned down by 62% to 38%. A vote to purchase the parcel to the west of the Wheeler was turned down 56% to 44% in 2004. Maple noted for the 2010 budget, the revenue for the Wheeler is $4.4 million and the expenditures are $6.3 million and there is $1.9 million being spent out of the Wheeler endowment. Maple noted the 1979 ballot question for the RETT states the tax will be used only for the purpose of renovation, reconstruction and maintenance of the Wheeler opera house and to support the visual and performing arts. Maple said the Municipal Code section 23.48.060 contains the same language. Maple said expansion is not renovation, reconstruction or maintenance. Maple said staff states the 1979 references the master plan. Maple stated this budget includes a misappropriation of funds. The master plan contemplates an expansion and states development should be approached in a measured way to make certain its capital costs can be properly developed. These should come from non-city sources, primarily business, industry, foundations, individuals, with some funding from governments. Maple said the 1979 RETT was not intended to fund the creation of a new theatre. Maple said in 2002 an endowment was created and the language is clear that the funds are to be used to support the existing operations as well as the arts. Maple said a new ordinance has been proposed to overcome the limitation on the use of these funds in the endowment. This budget appropriates funds that require a change in existing ordinances to allow for this appropriation. Maple said there is no sound plan for the expansion and the appropriation of $3 million is contrary to the 1979 ballot and ordinance, the Charter and the existing code. Councilman Skadron asked if the allegation of misappropriate of funds has only to do with expenditures for the Wheeler. Maple said the expenditure of funds for expansion of the Wheeler should not come out of either the RETT or the endowment. Councilman Romero stated in order to gain public knowledge and support of city prof ects, staff needs sufficient knowledge of the plan and the city needs to spend money. Councilman Romero said the city is spending money for Aspenites, with different points of view and perspectives, and for the public good, which is a different set of intention than is done in the private sector. The city will need a more robust plan and needs to spend some money to get to that point. Maple agreed money needs to be spent to get to a greater plan before the voters are asked whether they want to spend this source of taxpayer money on the Wheeler. Councilman Romero said this money is being spent, only what is necessary, to get more information and more public input to be comfortable that the project is on the right path. All in favor. motion carried. 8 Re¢ular Meetiue Aspen Citv Council November 23, 2009 RESOLUTION #95, SERIES OF 2009 -Adoption of 2010 Mil Levy Ashley Ernemann, finance department, noted this is the last year of collecting funds for TABOR project so the temporazy credit to the mil levy will be reduced. The storm water fund can collect their entire mil. The general fund mil levy is 3.533 and the storm water mill is .492 for a total of 4.025 to collect $6.8 million. Council agreed this is what they directed staff to do. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Mayor Ireland moved to adopt Resolution #95, Series of 2009, a mil levy of 4.025; seconded by Councilman Skadron. All in favor, motion carried. ORDINANCE #24, SERIES OF 2009 -Sales Tax Revenue Bonds Don Taylor, finance director, noted the bond counsel sent some amendments to this proposed sales tax refunding bond ordinance. Mayor Ireland noted this will save the city up to $500,000. The amendments provide wording to allow the city to execute the intent to refinance existing bonds at a lower rate. Section 37 and 38 are also being amended. Mayor Ireland moved to adopt Ordinance #24, Series of 2009, as amended to include the above language and sections 37 and 38; seconded by Councilman Romero. Roll call vote; Councilmembers Johnson, yes; Torre, yes; Skadron, yes; Romero, yes; Mayor Ireland, yes. Motion carried. RESOLUTON #52, SERIES OF 2009 -Lift One Lodge Conceptual PUD Jennifer Phelan, community development department, noted this is a proposed time shaze lodge development, free market and affordable housing and commercial component. The resolution addresses issues that came up at the last public hearing. One of those issues is financial assurances and that the plan will provide a mechanism to guazantee the city's ability to secure the land owner's performance of obligations. Council brought up a concern abut the conversion of time share units and the resolution states the plan is required to go through a substantial amendment review upon conversion of units to whole ownership. Ms. Phelan pointed out that the Skier's Chalet Lodge and Skier's Chalet steakhouse may be used as worker housing during the PUD process rather than having them empty. Bob Daniel, representing the Lift One Lodge, said using the Skier's Chalet for temporary affordable housing has been going on since the process started and this was included in the resolution so that the units would not be subject to replacement credit. Jim Light, partner in Lift One Lodge, said the applicants feel like they have shared values and commitments with residents of the area of the proposed lodge. Light told Council their developments have community livability, environmental sustainability and a healthy economy as common interests. Light told Council in their projects when things go Regular Meeting Aspen Citv Council November 23, 2009 wrong, it is their commitment to try and clean things up. Light said when they developed the Roaring Fork Club in Basalt, they set up a real estate transfer assessment on initial and resales to support the Roaring Fork Conservancy. Light said they also have volunteer work for the nonprofit and aze helping on a capital campaign; they also raise money for other non-profits. Light said the company has been involved in Anderson Ranch at Snowmass and human services in the mid-valley. Light said the partners submitted a project complaint with the city code. This project went through the P&Z and HPC process for conceptual approval. The applicants were asked to put that project on hold in order to be part of a COWOP process. That process redesigned the project around a ski corridor. When the COWOP was not approved by Council, the previous application was reactivated. The applicants met with adjacent neighbors and with the Council and heard that the earlier project should be revised to be more like that from the COWOP, to maintain the community benefits. The applicants have redesigned the lodge to be lighter and more contemporary with accented public access. Light said the shared ownership suite product is designed with high occupancy and azound the needs of the community. The applicants have tried to balance the community objectives ahd their market. Light said the applicants do not feel that the room size can be reduced significantly. Light said the applicants want to create spaces that are inviting to the owners, to guests and to the community. Light said he does not feel second homes are necessarily efficient and this project is designed for 8 owners sharing a space, which has the benefits of a second home with lower costs and lower environmental impacts. Light said the project proposes a range of unit sizes, not just one size fits all. Mayor Ireland opened the public hearing. Toni Kronberg noted the resolution states approval of the conceptual development plan authorizes the applicant to submit an application for a final PUD in accordance with the resolution granting conceptual approval. Ms. Kronberg said the public has not been involved in this land use application except in public hearings in front of Council. Ms. Kronberg stated none of her comments have been taken into consideration. Ms. Kronberg said she is concerned about shifting development over into South Aspen street. Ms. Kronberg said the poma lift is not an adequate community benefit. Ms. Kronberg pointed out the Ski Company will create snow at the beginning of the year but at their discretion, they can shut that down. Ms. Kronberg said the applicant should not spend two years on this project only to have to go to referendum. Junee Kirk said she feels Council should give the applicant direction on where to go. Ms. Kirk said she does not support vacating South Aspen street. There are avenues that have not been explored; a 75' right-of--way so that there is a view corridor of the mountain. The applicants should be encouraged to move the mass to the east. Ms. Kirk said the historic Lift One should be used in the development. 10 Regular MeetinE Aspen City Council November 23, 2009 Georgia Hansen, Aspen Historical Society, said this is a great opportunity to honor the connection between town and the mountain and the opportunity to bring this side of the mountain alive again. Ms. Hansen said if not here for lodge development, then where in the community would be more appropriate. Mayor Ireland closed the public hearing. Councilman Torre said after the last meeting, he listed details of his objections which were passed on to the developer. Councilman Torre said those concerns both written and verbal have not been addressed. Councilman Torre noted that the Aspen Ski Company is not an applicant in this and the applicant is representing the Ski Company and moving the lift up the hi11200 feet, which necessitates some lower lift. Councilman Torre said he does not see that upper lift integrated at all. Councilman Torre said he feels there is a better solution for this side of the mountain and he cannot support the project. Councilman Torre stated he cannot support the vacation ofright-of--way and allowing construction in the right-of--way. Councilman Torre said he feels the poma lift in the middle of the project is driving problems he has with the project. Councilman Tone said he does not feel the time share and lock off capability is enough for community trade off or any concessions in mass and scale. Councilman Tone said he would prefer something like the gondola plaza on this side of the mountain and something that brings the community back in touch with its ski heritage. Councilman Torre said the idea of a ski museum on this site connected to ski runs and lifts was exciting. Councilman Torre asked the plan for the museum, is it local or partnered with other ski organizations. Ms. Hansen said there is preliminary programming which has a ski aspect, but the museum will be the story of modern Aspen. Councilman Skadron said conceptually he agrees this is the right place for a project like this. Councilman Skadron said to support this project at final, he would need modifications along the lines of those concerns listed by Councilman Torre. Councilman Skadron noted the applicants alluded to designing a code compliant project. Councilman Skadron said several weeks ago, he asked about the variations requested, one of which the building encroaching into the city's right-of--way. Councilman Skadron asked if the project can be compliant with the city's code and also achieve a ski corridor. Bob Daniel reminded Council, the applicants asked Council whether they should move forward with the COWOP concept which included the ski corridor. Daniel said in order to have a project that meets the community goals, the project has to go into the right-of- way, which the COWOP members supported. Daniel said if the city abandons the right- of-way and the right-of--way is included in the project area, the project is code compliant. Daniel noted the U-shape project, the original application, is the code compliant project. Daniel said taking into consideration the opening of the ski corridor, which was in response to the 27-member COWOP and pushed the building into the city's right-of--way. Daniel said there are some setback variances requested and some height variances requested. The project is compliant with the lodge zone district FAR. 11 Regular Meeting Aspen City Council November 23, 2009 Councilman Skadron asked what is meant by "the lift is wrong". The previous COWOP reviewed this project, met with the Colorado Tramway Board on what would be allowed. Councilman Torre said one issue is snow coverage in the corridor will be difficult and this is being maintained by the Ski Company. This is a surface lift which requires snow coverage. Councilman Torre said his big concern is who will use this lift and how much of the community it will serve. Councilman Torre said he like the return skiing aspect of the plan. Councilman Torre said he feels the poma lift will be a duplication in transportation. People will be driving up to the circle to be dropped off. Councilman Tone asked about bringing the lift down the west side of the project and taking the project out of the right-of--way. Councilman Skadron asked about the impact of this development on the character of the lower ski mountain. Councilman Skadron reiterated that he feels the lift is more of a marketing vehicle for the project than a community benefit. Stephen Holly, architect, said the ski way down honors the original lift alignment. This is to ski back, not for repeat skiing. Holly said in the past, there was less building in the area. The project is honoring the past with the museum with the existing structure remaining and by using the corridor to honor skiing. Closing that comdor off does not honor skiing. Holly said there is no effect on the historical aspect from moving the upper lift. Holly pointed out that lift lA is a different lift from the historical lift 1. Daniel told Council the Ski Company has been involved in every aspect of the planning for this project. The Ski Company has given consent as part of this application. Daniel said one of the tenets from the Ski Company on this redesign was maintenance of Norway, not to impact the skiable terrain and not to take the lift up so far as to diminish the ski terrain. Daniel noted the poma lift is about a one minute ride. Daniel said Section 7 of the resolution indicates the Ski Company has committed to provide a specific operating plan on the land in Lift One park and Willoughby Park. Daniel said the Ski Company has no plans to put snow making guns in this corridor because of the community impact but has said once the ski race course is taken care of, they will push snow into the corridor. Councilman Skadron said he struggles with community objectives versus market needs. Councihnan Skadron said he feels like community objectives are being leveraged in order to gain mass and scale. Councilman Skadron asked what objectives the community would have to give up in order to get a smaller project. Daniel agreed the difficult thing for a city is to balance the benefits versus the end product. Daniel said the applicants grapple with the term mass and scale and what specifically is objected to. Daniel said the overall density on this project is less than that mandated by the code; what is less density 40% or 5%. Daniel said because of the community benefits the project is proposing, there is not a lot of wiggle room. Daniel said creating the lift corridor in order to get a tramway variance pushed the project out to the west, necessitating an increase in height in the middle part of the project. Daniel stated they originally presented a code compliant that worked for the developer. Daniel pointed out all the program, except for the restaurant and the rooms, are below grade. 12 Regular Meeting Aspen City Council November 23, 2009 Councilman Romero said using the Aspen Area Community Plan as a guide, areas that are important are lodging and the reinvestment in lodging in this azea; historic resources and the reutilization of historic resources; the effort towards affordable housing; the effort towards environmental stewardship; managing transportation; and architectural character and design, which touches on mass and scale, height, density, and contextual fit within the neighborhood. Councilman Romero said scoring on these 6 areas, the application achieves high marks. The affordable housing at 100% with 60% on site scores high for housing. Councilman Romero noted lodging is a vital vision and value statement in the AACP. Councilman Romero pointed out there has been an over-reliance on one industry, development and real estate, and a failure to focus on the resort. Councilman Romero said some not so successful projects serve as a good lesson and point a way to join forces to makes a better neighborhood. Councilman Romero reminded Council two years ago they denied the Lodge at Aspen Mountain and the community sentiment was, take the time and look at a broader master plan approach to apply the lessons learned. Councilman Romero said although the outcome was not positive, it was a learning experience. Councilman Romero noted when this applicant came back to Council, they asked if they should incorporate portions from the citizens' COWOP, to which Council agreed. Councilman Romero stated he would like to move this application forward, recognizing the lessons learned and recognizing that it will improve between conceptual and final. Conceptual approval does not give permission to build anything. Councilman Romero said he feels this conceptual application adheres to and achieves many of the core principles in the AACP. Councilman Romero said the financial assurances have to come back at final and the policies at this point are sufficiently broad in order to give the city latitude and the applicant has to run the financial gauntlet to gain Council approval. Councilman Romero said there will be recourses and mechanisms that the city can pick up the pieces should the project get stymied. Councilman Skadron noted at the last meeting the applicant stated they did not want the project approved at conceptual just to be denied at final and Councilman Romero just stated the applicant had "miles to go". Daniel said he understands the vagazies around the financial assurances and will work with staff to get a road map. Daniel said he would like more definitive direction on things like mass and scale. Daniel said he would like Council to express what the goal is. Mayor Ireland said he wants to avoid half built buildings and under financed projects. Mayor Ireland said there are some flaws in this project and these can be fixed. Mayor Ireland stated he is appreciative of what the applicant has tried to do on this project. Mayor Ireland said he appreciates the architectural previews and there is beauty in the structures as presented. Mayor Ireland said 75' wide streets are not the epitome of community character; many towns have streets that are too wide and promote the automobile and to minimize pedestrian activity. Mayor Ireland said the project benefits from the fact it is not built across the mountain making a wall between town and the mountain. 13 Regular Meeting Aspen City Council November 23, 2009 Mayor Ireland said this project is not visionary. From the beginning, undergrounding the street has been discussed rather than having an automobile entrance above grade, which drives a lot of the design and scale issues. Mayor Ireland said his specific concerns are there is no assurance that the rooms will actually be rented out. Mayor Ireland said when fractional units are approved, the city loses sales tax, which is the city's lifeblood. Mayor Ireland said tourists have to pay for the services that make Aspen a place where people want to visit. Mayor Ireland said the financial assurances are not final; however, the city needs to be able to restore the site if things go bad. There is a disruptive effect of abandoned buildings in neighborhoods. Mayor Ireland said he feels the lack of snow in the ski corridor could be addressed by trucking snow in. Mayor Ireland said the previous COWOP did have the opportunity to put their project on the ballot and chose not to. Mayor Ireland said Council needs to make sure that the approved mass and scale is something appropriate for this site into the future. Mayor Ireland said Council should not vote in favor of this project if they feel it will not work. Mayor Ireland said he feels the project can be redeemed that answers the issues he has brought up. Mayor Ireland said he has to protect the community from developers trying to renege on their commitments. Daniel pointed out Section 3 financial assurances and is the resolution for conceptual approval okay as a structure to address this at final. Mayor Ireland said this language is a start. Daniel noted section (f) talks about a detailed plan for time share operation plan where the applicant includes representations about optimum occupancy and reporting occupancy rates, including a limitation agreement that the rooms will not be priced in such a manner to prevent rental to the general public. Mayor Ireland said he is concerned about owners that do not want renters in their units. Daniel said the language states "the final application shall include an implementation agreement that assures the city that lodge rooms will not be priced in a manner to prevent rental to the general public". Mayor Ireland said he would like a solution included about owners not wanting to rent their units. Aspen has only a small amount of ground for rental units. Councilman Romero said these will be shared ownership units and owners will participate in a portion of the rental income. Daniel said that is how they plan to structure the project. Councilman Romero stated it seems there would be a community benefit by occupancy of these units as well as a benefit to the owner of cost offsets by renting the units. Daniel agreed owners of fractional units do generally not have fear of renting their units because they already share it with 7 other owners. Councilman Torre asked the average size of the fractional units. Daniel said the bedroom size is 525 to 540 squaze feet, and variety of size is important to the program. The units vary in size and the average size of a suite is 2400 squaze feet. Councilman Tone said he does not agree with the statement that owners will be willing to rent out their units because the units aze owned by 7 other people. Councilman Torre noted the section discussing the lift corridor says ASC shall make, move, spread, groom and prepare a base of artificial snow in the surface lift corridor in the beginning of each ski season in accord with its annual snowmaking and terrain 14 Regular Meeting Aspen Citv Council November 23, 2009 opening plan. Mayor Ireland agreed there should be some snow coverage guarantee as part of this. Councilman Torre said he would like that included in section 7. Councilman Torre asked about moving the porte cochere closer to the entrance to the garage; these might be co joined some where in the project for better management. Councilman Torre asked about walk out from units, which would add vitality and enlivens the street. Daniel noted there is walkout access. Daniel told Council they have tried to design in drop down corridors so people do not have to go through the lobby to access one's unit for more liveliness. Daniel said the cul-de-sac design is driven by emergency access and the need for tum around and to serve other properties at the top of the mountain. Daniel noted there is a requirement for the Ski Company to.do what they do at all their base facilities, make early season snow, pack it and it remains throughout the year. Daniel said the Ski Company does have some water rights restrictions on when they can make snow. Daniel said the applicants believe the market is moving towards shared ownership concept rather than owning a second home. Daniel said concerns about mass and scale are the crux of the applicant's goal. Daniel said he would like a good sense what Council's target for mass and scale is. Daniel said in order to make any changes, he needs to know where Council's goal if is there is a target goal; if it is not 116,797 square feet on lot 1, what is it. Councilman Torre said he would like to see less mass and scale. Councilman Romero moved to approve Resolution #52, Series of 2009; seconded by Councilman Skadron. Councilman Skadron said he has heard good arguments pro and con; however, there is enough to move towards a project that can satisfy all of Council's concerns. Councilman Skadron said he will support this at conceptual. Councilman Tone said he feels if this is approved at conceptual, Council is giving up its ability to negotiate the project into something that is a community benefit. Councilman Torre said he feels the protracted process has damaged Council's ability to get the community what they would like in this area. Councilman Tone said he does have great hopes for this side of the mountain and he would like the developer to be prosperous in this area. Councilman Tone said this is an appropriate area for lodge development but there are parts of the project that can be made better. Councilman Romero said this is about lodging, which is a strong piece of the vision for the base of the mountain. Councilman Romero noted citizens have talked to him about the need for revitalization and reinvestment in this side of the mountain and to fortify Aspen's lodging base. Councilman Romero suggested the applicant look at the commercial square footage, the free market square footage and the affordable housing to see if any of these could be reduced or tweaked. Councilman Romero said there has been progress on this application and he will approve it and hope to see more improvements by final. 15 Re¢ular Meetinz? Asaen City Council November 23, 2009 Mayor Ireland said it is pretty clear that conceptual does not mean final approval and his final vote will depend on overcoming the concern that this project not become a large empty space blocking the views of the mountain. Roll call vote; Councilmembers Torre, no; Romero, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #100, SERIES OF 2009 - 980 Gibson Code Interpretation Appeal Jennifer Phelan, community development department, told Council this is an appeal of a code interpretation regarding development rights and floor area associated with an area of land gained through a quiet title action. Ms. Phelan told Council this is bounded by Matchless Drive and Gibson Avenue; it is the northerly parcel. Ms. Phelan noted the community development director is required to provide interpretations of the land use code. The applicant requested an interpretation about this parcel of land, which was acquired through quiet title action. In the interpretation, staff noted that this 5600 square foot pazcel does not have any floor area nor any development right associated with it. Ms. Phelan pointed out the appeal asked 3 things; an answer to all of the 5 questions posed in initial request; reversal of the determination that the northerly parcel has no floor area; and that the property is considered to have a development right and to be reviewed through growth management administratively. Ms. Phelan said regarding not answering questions 1, 2, and 3, staff felt those were hypothetical and interrogatory question rather than providing clarity around the text in the code. Ms. Phelan said regarding the determination of no floor area for the northerly parcel, the land use code says that certain things are deducted from a lot azea in calculating floor area. One of those is proposed dedicated rights-of--way. Ms. Phelan said this area of land gained through quiet title action was a proposed right-of--way and dedicated by the subdivider of the Alpine Acres subdivision, which was 5 lots and 2 streets. Ms. Phelan said staff determined this was a proposed right-of--way and could not be counted towazd the definition of lot azea and there is no associated floor azea. Ms. Phelan said there was a request to go through administrative growth management. Ms Phelan reminded Council all lots within the city are required to go through growth management review. This has not and staff does not believe this lot meets the criteria to be reviewed administratively. This area of land was platted as a right of-way and expected to be aright-of--way. This is part of a 5 lot subdivision; there are other lots in this subdivision that have gone through additional subdivision review and this property has not. Ms. Phelan said this is no different than an adverse possession claim where the beneficiary cannot develop land gained through adverse possession. Ms. Phelan pointed out there are 3 criteria for overturning a code interpretation; lack of due process, excess of jurisdiction, or abuse of discretion. Ms. Phelan stated staff met the due process by notice requirements. The community development director is required by the land use code to issue interpretations of the title of the code so the jurisdiction was not abused. Ms. Phelan said in interpreting the land use code, some discretion has to be used; however, staff does not feel there was an abuse of discretion. 16 Regular Meeting Aspen City Couucil November 23, 2009 John Worcester, city attorney, noted this is an appeal on the record and Council has to limit their discussions to the record before them. Council can only reverse the decision of the community development director if they find a denial of due process, an abuse of discretion or excess of jurisdiction, that they misapplied the law. David McConaughy, representing the applicant, said the only stated reason he has found from community development department about why this parcel does not have floor azea is that it was a proposed right-of--way, not because it was acquired through quiet title or adverse possession. Mayor Ireland said the land use code 26.575.020(c) that area within a vacated right-of--way or within an existing or proposed dedication right of way or surface easement does not control the issue. McConaughy said they can agree this is not a current right-of--way and agree it is not a vacated right-of--way because it was never dedicated and the question is, is it a proposed right-of--way. McConaughy stated the applicant's goal is to redevelop the property and they need to know what the starting point is. McConaughy said to that end, they asked staff what land use entitlements were associated with this parcel and were told there were none; it is sterile ground and not a separate pazcel. McConaughy said the first 3 questions go to the issue of whether this is a separate parcel. McConaughy noted the parcel is shown on the map; the court created it as a pazcel and it is not owned the same way the adjacent parcel is. Mayor Ireland asked if allowing quiet title creation of separate parcel in a separate entity opens the door to subdivision by court action and does the city have the right to stand up against that. McConaughy said the city does not because that parcel was created by an order of the court and it is what it is; the city was a party to that case. McConaughy said the question is whether there are development rights associated with that pazcel. McConaughy said if the answer is yes, the applicant would like to come back with a plan and first they need to know what the floor area would be. McConaughy said the only stated reason is that this was a proposed right-of--way. McConaughy questioned what "proposed" means, ever proposed. It was proposed on a plat and approved by the county in 1964 and annexed into the city in 1976. This was never accepted as aright-of--way by the county and when it was annexed, it was known it had not been constructed so it is not currently proposed. McConaughy said this was proposed once; however, it does not mean the property is sterilized as aright-of--way forever. There has to be some connection to reality. McConaughy stated their position is if the discussion is a "proposed right-of-way", there needs to bean actual proposal. McConaughy stated nobody thinks this will ever be aright-of--way; the city disclaimed all interest in this pazcel. McConaughy told Council the applicants agree they need a growth management quota to develop the lot. The issue is whether they are eligible for an administrative review. McConaughy pointed out the staff memorandum argues that the property has to be legally existing in the city prior to 1977. McConaughy reiterated this was annexed as a sepazate metes and bounds pazcel in 1976. Ms. Phelan pointed out the plat shows Herron drive and Silverking drive, which were the original dedicated right-of--way in the Alpine Acres subdivision on the annexation plat. Mayor Ireland asked if the parcels were under common ownership, they were merged. McConaughy said those parcels were in no man's land until the court determination. 17 Regular Meetine Aspen City Council November 23, 2009 McConaughy said the reason this is ineligible for administrative review because it was not in the city until 1977 it not right; it was annexed in 1976. McConaughy said the real point is whether there is floor area associated with the parcel. Mayor Ireland said he would like to know if the parcels were merged because no matter what the court decrees, there is not a separate parcel and it cannot get a growth management quota. McConaughy showed the northerly parcel and the southerly parcel and when it was annexed, all was shown as one legal parcel and not part of the lot, not part of the common elements, so there was a parcel. Mayor Ireland asked if there was ownership of the parcel by the adjoining properties. McConaughy said not by his clients. McConaughy said the shaded area shown on the plat as aright-of--way was not owned by the city or the county. Mayor Ireland asked why the adjoining owners did not own this land and if the court was correct and the adjoining property owners owned it, and then the land was merged as adjoining parcels. Mayor Ireland said parcels do not have to be owned by the city to merge with the adjoining lots. Mayor Ireland noted there is not such a thing as a parcel that does not have ownership. Ms. Phelan said this property was platted as aright-of--way, not as a developable lot. It was annexed as Silverking Drive, not as a developable lot. Councilman Romero asked if Herron Drive had the same conditions. Ms. Phelan said it was platted as aright-of--way. McConaughy said that was accepted because it was built. Ms. Phelan said the Silverking Drive was proposed and dedicated as aright-of--way. McConaughy said the language on the 1964 plat says, "the foregoing plat is accepted for filing and conveyance of roads thereon and temporarily and conditionally approved by the Board of County Commissioners and acceptance of said roads is subject to satisfactory construction hereof by subdivider", which never happened and the county never accepted the dedication, and that's why the city agreed that it acquired no ownership when it annexes and that's why the court found it could be adversely possessed. Mayor Ireland said if someone owns two adjacent parcel with a condominium on one and vacate land on the other and there was common ownership prior to 1970's, it becomes one parcel; it is merged. McConaughy said if they submit a re-subdivision application, the separate parcel issue is moot. The question is what the allowable floor area is. Councilman Tone asked if there are any utilities running through this parcel. David noted there is an underground sewer line. Councilman Torre stated he cannot find that the development director abused his discretion or went outside his jurisdiction. Councilman Skadron concurred and stated the community development director's interpretation was ethical and there was no abuse of authority. Councilman Johnson said with due process and discretion, he is comfortable with the decision of the community development director. Councilman Johnson asked if there is any room for negotiation on the size of the floor area. Worcester answered it is not an issue of whether the applicant is entitled to 100 square feet or 200 square feet; they are either entitled to FAR or not based upon the language in the code. Worcester said part of the issue is what does proposed right-of--way mean. Mayor Ireland said he does not understand how this would escape merger. Worcester said that was not part of the consideration. Worcester said 18 Reeular Meetine Aspen City Council November 23, 2009 there is no doubt there was a proposed right-of--way in the past, it was never dedicated properly. It was not accepted by the county and when the land was annexed, it was not accepted by the city. It was a proposed right-of--way at one point. Worcester pointed out when rights-of--way are vacated; the property can no longer by counted toward the FAR. McConaughy said they are requesting Council direct staff to answer the questions. Mayor Ireland stated there is no entitlement to have hypothetical questions answered. Councilman Romero stated the community development director exercised his discretion based on the language of proposed right-of--way and there was no over extension of reach based on the record in front of Council. Mayor Ireland said he feels this revolves azound showing there is a sepazately owned parcel before one can get development rights. Mayor Ireland moved to adopt Resolution #100, Series of 2009, affirming the community development director's interpretation; seconded by Councilman Torre. All in favor, motion carried. Councilman Johnson moved to adjourn at 10:30 p.m.; seconded by Councilman Torre. All in favor, motion carried. :' ~ Kathryn S. och, City Clerk r 19