HomeMy WebLinkAboutminutes.apz.20091215Reeular Meetine Asnen Plannine and Zoning Commission December 15, 2009
Comments 2
Minutes 2
Declarations of Conflicts of Interest 2
Design Call Up Amendment 2
Proposed Code Amendments 9
Temporary Outdoor Food Vending; Banners & Flags on Main St 10
Regular Meeting Asaen Planning and Zoning Commission December 15 2009
Stan Gibbs opened the regular Planning and Zoning Commission meeting in Sister Cities
Meeting Room at 4:30 pm. Commissioners Bert Myrin, Cliff Weiss, Jim DeFrancia and
Stan Gibbs were present. Michael Wampler, Brian Speck, Jasmine Tygre and LJ
Erspamer were excused. Staff in attendance were Jim True, Special Counsel; Sara
Adams, Drew Alexander and Chris Bendon, Community Development; and Jackie
Lothian, Deputy City Clerk.
COMMENTS
Jackie Lothian stated that Jasmine Tygre was appointed as the alternate member of P&Z.
MINUTES
Stan requested that on page 9 "lower" be added to the windows.
MOTION: Cliff Weiss moved to approve the minutes with Stan's changes of November
03, 2009, seconded by Jim DeFrancia. All in favor, APPROVED.
DECLARATIONS OF CONFLICT OF INTEREST
None stated.
CONTINUED PUBLIC HEARING:
DESIGN CALL UP CODE AMEDMENT
Stan Gibbs opened the continued public hearing on the Design Call up. Notice was
previously provided.
Sara Adams stated the application before P&Z was asking for a recommendation to City
Council about a de novo code amendment. Currently City Council has the authority to
call up HPC and P&Z decisions that are really commercial design approvals and also
historic properties certificate of appropriateness. Adams said that right now these were
called procedural, which means it is based on the record; they are looking for an abuse in
discretion or was there a denial of due process or did the board exceed their jurisdiction.
This is the way that the code is written right now; so sometimes projects get called up to
City Council for design related reasons but Council is restricted in their review to adjust
these procedural issues that were just talked about. Adams said an example is that
Council looks at a project and decides that HPC made the wrong decision but the board
didn't exceed their jurisdiction; so Council would really have to say that HPC did their
job incorrectly in order to change the decision and that's a really difficult position for
Council to be in so staff was directed to look at changing the call up language so staff
drafted 2 resolutions in the packet; one was a draft resolution that Council directed staff
to compose and one was the HPC (Exhibit E) approval.
Adams said the Council directed the resolution that starts on page 4 of the packet and the
key language was on page 6, which were the numbers 1 through 5. Adams used the
2
Re¢ular Meetine Asuen Plannine and Zoning Commission December 15, 2009
example of an application approved by HPC and the call up information goes to City
Council and they have 30 days to call up this decision and it's not just one Council
Member but at least 3 the Council members vote on it. Page 6 had the actions that
Council has after they review the application using the same criteria that HPC reviewed
on the project that they were looking at to grant approval. Adams said so the options that
Council has are they can (1) accept the decision that HPC made, (2) reverse or amend the
decision, (3) can alter the conditions of approval, (4) remand it back to HPC for a
rehearing or (5) Continue to get more information. Jim DeFrancia asked if right now the
Council ability to call up is restricted to 2 or 3 circumstances. Adams replied it was
based on the record. DeFrancia asked if the intent of this was to allow Council to call up
for any reason they want. Adams answered to call up was based on the contents of the
application. DeFrancia said that even if they acted within the scope of their authority,
even if it complied, if P&Z approved it and Council just doesn't like it, Council can call it
up for review at Council or the applicant doesn't like it and appeal it to Council. Chris
Bendon stated that an applicant can always appeal a board's decision and appeals are on
the record; if an applicant doesn't like the decision or if the decision was something that
stops at P&Z they can appeal it on procedural grounds; if it's something that goes onto
City Council anyway like a PUD review that P&Z is only a recommending body there is
already a path. DeFrancia said so the first part of consideration is that this amendment
gives Council broader authority to call up any of these applications that they see reason
they see fit. Adams said that they were just proposing to amend the sections of the code
that already have the call up provision in them, which are commercial design standard
review, which is Planning & Zoning and the HPC certificate of appropriateness; so the
design related decisions stop at HPC and stop at P&Z.
Cliff Weiss said that he was stuck on the concept of all of this; we are recommending
bodies. Weiss asked if it was only when P&Z or HPC was the final review that Council
could have a call up to send it back to P&Z. Bendon explained that both P&Z and HPC
have the circumstance where 'h of the reviews stop at P&Z; so applications that you are a
recommending body there is no reason for a call up or appeal because it was already a
recommendation that goes onto Council.
Adams said essentially what Council can do is reverse or amend the decision that the
Planning & Zoning Commission makes for a commercial design standard review and
staff has concerns authorizing Council to conduct the de novo review with the ability to
amend the approval. Adams said staff was concerned about the predictability of the land
use process, it may be jeopardized by changing approvals after the applicant works with
the Planning & Zoning Commission for example to get a commercial design review
approval and concerned that there is a level of uncertainty for the applicant regarding the
validity of an approval that they would get for commercial design review from the
Planning & Zoning Commission for the next 30 days they could be uncertain as to what
3
Regular Meeting Aspen Planning and Zonin¢ Commission December 15 2009
kind of approval they could end up with if City Council does call it up based on the
proposed language here. There was also concern that Council takes on a HPC or P&Z
role in addition to the normal City Council responsibilities. Adams said another
perspective is that the amendment adds another level of checks and balances to the
system; it could ultimately result in a more balanced application at the end of the process;
Boulder and Telluride both used the de novo call up system.
Stan Gibbs asked if HPC has a role in a code amendment. Adams said that they don't but
since it involved them staff felt it was appropriate to ask for a recommendation from HPC
but typically is was a recommendation from P&Z to City Council.
Adams said the HPC approved (6-0) the resolution on page 13 of the packet that
eliminates the ability of Council to remand or reverse the decision that HPC or P&Z
makes and proposes 3 options. (1) Accepting the decision. (2) Remand the application
back to HPC or P&Z for a rehearing. (3) Continue the meeting to request additional
information to conclude the call up review.
Adams said that HPC decided that eliminating Council's ability to amend or reverse the
decision in remanding it back to the applicable board with some clear direction as to what
they didn't agree with was probably the fairest way to go and the most consistent way to
go and probably meets the Aspen Area Community Plan a lot closer than allowing
Council to change the decision. Adams said that staff was recommending that P&Z
approve the language in the HPC resolution with the same language. Bendon said staff
was concerned about a de novo review at Council not to turn the Council into an HPC or
P&Z because the nature of these kinds of call ups can be a fairly political environment
and staff does not think that the best design decisions are made in highly intense political
environment; we do think that it is appropriate for Council to hear that feedback so when
they are in a procedural review they don't get to take new information, they don't get to
take new testimony, they don't get to take hear new information from an applicant about
how something is addressed; it's purely procedural review so it really leaves them short
on hearing from the public from more of a management philosophy. Bendon said instead
of Council taking over P&Z's job; instead staff though it would be better for them to say
that they didn't like the decision that you made; maybe you didn't hear from the same
public; it reinforced P&Z and HPC's role as opposed to taking away from your role and
maintains the integrity of the process; it should be part of the P&Z process as someone
who wants to speak to the project. Bendon said it does raise a potential for a disconnect
between P&Z and Council.
Bert Myrin asked if the applicant was not certain for 30 days; isn't that decision on hold
for 30 days because someone could do a referendum to overturn. Adams replied sure; it
was a little more probable to have City Council call up a decision based on content like
4
Regular Meeting Aspen Planning and Zoning Commission December 15, 2009
Chris was saying. Adams said that the public doesn't always come to HPC, they wait to
go to Council when the decisions regarding design are already set in stone; there is
always that concern. Bendon said that you might see applicant's in a close decision
almost sound like they are speaking to Council when they are in this room. Myrin asked
from Telluride and Boulder were the decisions or approvals that were overturned or
reviewed or were they denials that were reviewed or overturned. Adams stated that she
was looking at the language but her understanding for Boulder was that it was typically
approvals that are called up by Council. Myrin asked if there was something in Aspen
that changed. Bendon replied there was a call up on Bidwell; so what happened under
the current language now, if Council wants to reverse the decision or alter the conditions
that have been approved themselves; if Council wants to take over the first half to declare
that P&Z or HPC that the procedure was not followed; there was a conflict of interest,
you didn't hear from the public, something was done procedurally wrong, which was a
tough thing for Council to declare unless there was something very clear on the record
along those lines. Bendon said Council said that they were not happy with the decision;
they want to have an opportunity to correct it. Bendon said that it could lead to a ping
pong and that would probably prompt a meeting between the 2 boards and this has
nothing to do with an appeal.
Stan Gibbs asked the language that was also in the current code "but not limited to:" was
that Council could do anything they wanted to do. Gibbs asked if that language should
be in the resolution. Bendon responded that if a115 points were being included then the
language should be in there but if we were limiting to the 3 points then it should be
stricken.
Gibbs said that on page 2 "recognize the qualifications of the review boards" pertained to
HPC but not P&Z. Adams answered that the point was the decisions rendered by HPC
and P&Z and there is a certain level of expertise on the boards and it is important to
recognize that and to trust in the process and maintain the integrity of the process. Gibbs
asked Sara to expand on "B." on page 11. Adams replied that in the original draft there
was definitely concern around having Council take on P&Z and HPC's role; adding
another level of review; the same review that P&Z or HPC already went through gets a
little redundant; where the changes in Exhibit B were a better communication between
City Council and the boards that they call up a decision with more integrity giving in this
process where Council will give feed back to the Planning & Zoning Commission.
Bendon noted that last 2 statements speak to this "The excessive body of regulations must
not keep expanding and many should be reconsidered". Bendon said that you could read
a lot into that but one of the pathways and "rather than creating new rules was to
creatively solve problems".
5
Re¢ular Meetine Aspen Plannine and Zoning Commission December 15 2009
Cliff Weiss said that this was like the tip of an iceberg; how many things end here that
Council may want to call up. Weiss said that his big concern is when P&Z works
through a big application and it then goes through a whole new set gauntlets with Council
and he wanted P&Z to do more negotiation, more solutions and more compromises with
developer here on PUDs and other applications before it goes to Council. Weiss said this
was the exact reverse of where he sees P&Z should be moving and in subsequent years
beyond today. Weiss asked how they could make improvements and the big projects
(Bidwell, Aspen Club, Wheeler) get major subsequent changes beyond P&Z and he felt
like there's where there was a lack of communication in working together with Council
and in some situations Council improves on the work P&Z does and in some situations he
feels that P&Z does not do enough; he feels frustrated with various applicants that P&Z
just doesn't make difficult decisions that he felt should be made. Weiss asked staff how
they could make some improvements to that. Weiss said that he wanted to do more of the
land use for Council. Bendon responded that he did not have an answer and he did not
think that the answer was in the room tonight; often times it is a particular case but it
might be something that you could bring up with Council. Bendon said that in the past
staff has been better about making sure that there is an annual meeting with P&Z and
Council and HPC and Council.
Jim DeFrancia said that the land use that goes to Council is starting over from the
beginning; P&Z that has already done it and when Council gets a recommendation from
P&Z (whether it's for or against) Council should be predisposed to follow that
recommendation unless somebody can show up with a prevailing argument to counter it
and it should be relatively routine.
Bert Myrin spoke of page 6 in the memo that City Council's action "shall be limited to";
# 1 he would leave accepting the decision; #2 he would change if reversing and adding
approved by P&Z, it would be a check and balance; he would delete #3 because it was
open ended; #4 he liked the remanding and #5 he thought was reasonable.
Jim DeFrancia said there was the resolution that begins on page 4 and there's a resolution
on page 13 and staff recommended approval of the resolution on page 13. DeFrancia
suggested dealing with the resolution that begins on page 13 as opposed to going through
both of them. Stan Gibbs said that was going to be his question to the commissioners,
whether it's de novo or not. Gibbs said whether Council can call up this decision for any
reason or it has to be specifically as written. Myrin said that he would allow a de novo
review or encourage it if there was a limit of what Council could do with it. Gibbs said
Council has the right to review those things at some point because if they feel that
something is wrong, they should have that right in his mind because they are the only
ones that accountable to the voters. Gibbs said that HPC did a good job as did staff.
Weiss said he tends more towards the HPC approval with only being able to be remanded
6
Reeular Meeting Asuen Plannine and Zonin¢ Commission December 15.2009
back to them once in order to prevent a ping pong situation. DeFrancia agreed with the
HPC resolution approval.
Bendon said that an approval would create this drumbeat in the community that Council
feels the need to respond to because the approval was inappropriate but it could be that a
denial get a drumbeat around and that Council feels the need to respond to it. DeFrancia
said that whether it was an approval or denial and he follows Stan's logic, Council is the
elected body and are entitled to a different perspective with different considerations then
they should be able to do it either way. Gibbs said that he agreed with Jim DeFrancia but
asked Jim True the difference between reversing the decision and remanding it back.
True replied that he had a problem with just remanding without discussing what that
means; in a litigation context the court of appeals can remand things back for further
hearing and it can always go back up for further review if the further hearing doesn't
work; most of the time you remand it back with direction. True said Cliff brought up that
you can only remand it one time and what happens if it goes back to P&Z and P&Z does
the same thing and doesn't change anything then what happens. Weiss stated that at that
point they lose #2 in red; they can only accept it or continue it. Gibbs said that the whole
principal of remanding in his mind it has to essentially be a reversal; it's the opposite of
accepting it so #1 is accepting it and #2 is not accepting it; because basically Council is
remanding it back saying this is not an acceptable decision. Bendon says it would be
helpful to be codified that it is remanded back with direction.
DeFrancia asked why staff favored version B. Adams responded that the understanding
was that it would be remanded with clear direction; they were in favor of it for a couple
of reasons: the checks and balances; a better product would come out with better
communication between City Council and the boards because City Council does attract
more public to their meetings than perhaps more than P&Z or HPC. Adams said that one
of the reasons that staff didn't think that it was appropriate for Council to reverse or alter
the decision has to do with the integrity of the process and keeping the design related
issues for the appropriately assigned boards to make those decisions and to try and keep it
out of the political realm as much as possible. Bendon said that if there was a disconnect
between the P&Z decision and the community expressed by Council, it is a learning
opportunity where you can converge your thought process and it might result in a better
understanding of what Council expects of P&Z; it may result in realizing that the code
needs to be changed with the design guidelines changed with a learning and convergence
of thought. Bendon said that when Council has to step in and do the process for P&Z; he
thought there was a divergence of P&Z and Council's relationship.
DeFrancia said that if he was following the logic that staff considered looking at was a
version; P&Z takes action and goes to the Council; first of all they can accept it; rather
than denying it and overriding our acceptance Council can remand it back to P&Z with
7
Reeular Meetine Asoen Plannine and Zonin¢ Commission December 15 2009
some direction. Gibbs said for Council's remanding to have any real authority it has to
be able to go back to them again and P&Z changes whatever point and comes back with
some change that they just wanted to see. Gibbs said that if we are really going to give
de novo that was really the crux in his mind and Council has the ability to call anything
up they want. Weiss said the key was he didn't mind that Council has the opportunity to
call it up, to review it and make recommendations back to P&Z; what worries him was if
it was unlimited Council can keep sending it back to P&Z until they get what they want.
Weiss said that he was looking for a morph between the two and Council may have
something important to put into the process. Bendon said that after any commercial
design review that P&Z approves Council gets a memo with drawings saying this was
approved last night and you have 30 days to call it up and Council needs 3 people to call
it up.
Adams distributed copies of P&Z Resolution # 17, 2009.
MOTION: Jim DeFrancia moved to approve P&Z Resolution #17-09 concerning the
form as represented by staff (Exhibit B) and adding remanding with direction and that
the call up can only be once; seconded by Bert Myrin. Roll call vote: Weiss, yes; Myrin,
no; DeFrancia, yes; Gibbs, yes. APPROVED 3-1.
Discussion of the previous motion prior to the vote: Weiss said that remanding with
direction was preferred by the commissioners. Gibbs asked if they want to put some kind
of limitation on the number of remands. DeFrancia said if you do that he thought that
P&Z effectively takes away the authority of the Council to override. Weiss stated that
right now Council doesn't have that and Stan suggested that because they were elected
officials Council should have the final say; they don't have that presently. Weiss said he
was saying he is willing to have a little bit more of a gauntlet that Council participates in
and if they are not comfortable with something Council can send it back to P&Z and P&Z
can look at it what it is Council is not comfortable with; what worries him is no he
doesn't want to give up this board's authority over land use applications especially ones
that weren't going through conceptual and final and Council would see anyway. Weiss
said he does respect what Stan said about Council being elected officials and perhaps
having more comment from the public and he is willing to open that up so there is more
of a process for the Council and public to participate in. Gibbs said that this certainly
reduces the uncertainty because it really can't just go on forever. DeFrancia stated that
he was persuaded. Myrin said that Cliff is attempting to eliminate the ping pong and he
said that he can see both sides of it. Bendon said that they will combine all the
recommendations for Council. Bendon stated that the resolution will include the
amendments adding remanded with direction. Bendon said that on page 3 of the new
resolution "the City Council shall conduct its review of the application on the same
process and requirements applicable to the reviewing body" with the conditions listed
8
Regular Meetin¢ Aspen Planning and Zoning Commission December 15, 2009
below and may hear additional information from the applicant and public should be
replaced with "City Council shall conduct its review of the application under the same
criteria of the applicable reviewing body". The commissioners agreed with this change
with the exception of Myrin.
PUBLIC HEARING:
PROPOSED MISCELLANEOUS CODE AMENDMENTS
Stan Gibbs opened the Land Use Code Amendments. Chris Bendon said that they
wanted to talk about development orders first and then Drew has a presentation on public
amenity space. Bendon said that outdoor vending signage code and Main Street banners
but the overall sign code was not ready and they would like some thoughts on it.
Bendon said the development order code amendment had the same code language as in
Exhibit A.1 and Exhibit A.2 has the cut/paste language; in the resolution there was
basically a clean version of the proposed language. Bendon said there were 2 sections
that were being affected: the a development order does not expire but is subject to
changes in the code, the allotments expire, a development order is good for 3 years, that's
the vested rights. Bendon said unless a building permit is approved because from time to
time it could take a long time to approve a building permit and with a lot of larger
building permits the building department will issue phased permits; an access
infrastructure permit while staff is still reviewing the main body of the process. Bendon
said on page 8 Exhibit A.2; unless a complete building permit application submittal is
accepted by the chief building official; the acceptance was accepting it and registering it
as a building permit, it is logged into the computer system and you can look up the date
that it occurred. Jim DeFrancia asked in that case the applicant would be protected
against the imposition of code modifications. Bendon said that theoretically this could
extend the vested rights period but the relative unpredictability of how long it's going to
take through the process of review your building permit and the confusion around what
happens if staff issues a phase of the permit. DeFrancia asked how long the building
permit was good for. Bendon replied 6 months and you have to have taken some action;
you have to have an inspection so that it has to be continuously moving along. DeFrancia
asked about the Stage III stopping of building and what happens to the process. Bendon
answered it goes to the attorneys and they start taking about common law vesting.
Bendon said that his intent was to make sure the responsibility for pursuing the
application is completely on the applicant and that it is submitted in a timely fashion;
there was a definition of what the applicant is expected to do and it is to submit a
completed application. Gibbs said that the applicant knows that there is a 3 year limit if
they don't get the application into the City.
Bendon said this building permit section was added to so that building recordation and
fees were paid. Bendon said that the building permit must meet the standards of the City
9
Regular Meetine Asaen Plannin¢ and Zonine Commission December 15 2009
Engineer; he added a section on completion of review, a section on compliance review
and aclean- up of the process.
MOTION: Jim DeFrancia moved to approve Resolution #18, series 2009; seconded by
Cliff Weiss. Roll call vote: Myrin, no; Weiss, yes; DeFrancia, yes; Gibbs, yes;
APPROVED 3-1.
PUBLIC HEARING:
TEMPORARY OUTDOOR FOOD VENDING AND BANNERS and FLAGS on
MAIN STREET LIGHT POSTS
Stan Gibbs opened the public hearing. Jim True said that the language in the resolution
was not compatible. Jim DeFrancia said that maybe we should come back to this with
language Jim True has scrutinized.
MOTION: Jim DeFrancia moved to continue the public hearing for the Temporary
Outdoor Food Vending and Banners and Flags on Main Street to January S, 2010;
seconded by Bert Myrin. All in Favor, APPROVED.
The commission adjourned the regular meeting at 7:15 pm and went into a work session.
Drew Alexander and Chris Bendon provided a slide presentation.
~C~tJ
ckie Lothian, Deputy City Clerk
10