HomeMy WebLinkAboutcoa.lu.ca.219 S Third St.0055.2009THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER
PARCEL ID NUMBER
PROJECTS ADDRESS
PLANNER
CASE DESCRIPTION
REPRESENTATIVE
DATE OF FINAL ACTION
0055.2009.ASLU
273512465005
219 S THIRD ST
CHRIS BENDON
APPEAL OF CODE INTERPRETATION
JOSEPH EDWARDS
11 /2/09
CLOSED BY ANGELA SCOREY ON 1/8/10
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~.. RESOLUTION N0. 89
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING MAN-MADE TOPOGRAPHY AND THE
CALCULATION OF FLOOR AREA.
WHEREAS, the Community Development Director received a request for a
interpretation of the Land Use Code regarding man-made topography and the calculation of
Floor Area from the owners of 413 West Hopkins Avenue represented by Attorney Jody
Edwards and the owners of 219 South Third Street represented by Attorney Bart Johnson; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered
a decision and the owners of 413 West Hopkins Avenue sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation
of the Director or modify or reverse the Interpretation upon a finding that there was a denial of
due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and oral argument from
Attorney Jody Edwards representing the appellant, Attorney Bart Johnson representing the
affected property owner, and the Community Development Director, and has found that the
Director provided due process and neither exceeded his jurisdiction or abused his authority in
rendering the Interpretation; and,
WHEREAS, the City of Aspen City Council fmds that this Resolution furthers and is
necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community
Development Director's Interpretation of the Land Use Code regarding man-made slope and the
calculation of Floor Area.
This Resolution 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any action or proceeding now pending under or by virtue of the ordinances repealed or amended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 provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution 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.
APPROVED by the Aspen City Council at its regular meeting on , 2009.
ATTEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
Michael C. Ireland, Mayor
W~ l~/W' '
Resolution No. 89, Series of 2009. Page 1
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MEMORANDUM
TO: Mayor Ireland and Aspen City Council
COPY: .lohn Worcester, City Attorney
FROM: Chris Bendon, Community Development Director
RE: Appeal of Land Use Code Interpretation -Lot Area and Man-Made
Landforms
DATE: October 26, 2009
SUA~iMARY:
One of the jobs assigned to the Community Development Director is to provide
interpretations of the text of the City's Land Use Code. This is a formal process in which an
applicant requests a written interpretation and, if they don't agree with the interpretation,
affords the applicant the right to appeal the decision to the City Council.
There are three criteria upon which the City Council has to decide an appeal of a code
interpretation. Based solely upon the record established by the original decision, the City
Council shall consider whether:
1) There was a denial of due process;
2) The administrative body exceeded its jurisdiction; or,
3) The administrative body abused its discretion.
These standards ask whether the Director's actions were ethical. The City's code states that
the decision or determination made by the administrative officer shall not be reversed or
modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for
the entire code section.)
In this case, the interpretation rendered by the Director addresses how man-made landforms
contribute to a property's development rights. (The City reduces the Floor Area of a property
when steep slopes exist.) The interpretation arose during the review of 219 South Third
Street and the neighbor's concern about the extent of potential development on the site.
The City has not allowed property owners to modify the topography of their parcel to increase
development rights. For example, one cannot level-out a sloped site and increase the
property's Floor Area. One the other hand, the City has allowed property owners to use a
pre-development topography in examples where the site has clearly been modified in the past.
Properties do have long histories of development activities and some discretion is necessary
in analysing the reliability of the information provided and the conditions of the site.
a o
The City's Land Use Code does not define the term "slope." This requires the Director use
some discretion. The City's Land Use Code does define '`berm" as a type of "structure" that
is constructed and not part of the natural pre-development condition of a site.
Lastly, if the City did not look at natural pre-development conditions and only considered the
topography of a site just prior to development, property owners could modify their land to
increase their development rights. Roughly 1,000 parcels in the City fall into this category
and would be able to modify their properties and increase their Floor Area.
STANDARDS OF REVIEW:
1. Due Process -The review of 219 South Third Street was very contentious. The neighbor
raised concerns over the potential development that could occur on the site. The property
owner and the neighbor disagreed about how an old railroad bed should be counted
towards development rights and the way staff had traditionally treated such modified
topography. Staff asked both parties to request the interpretation, allowing either party to
appeal the findings.
Certain timeframes affect when interpretations must be provided after a request and when
appeals need to be scheduled. Those timeframes have been met. As required by the Land
Use Code, the appellant was provided notice of tonight's meeting via registered mail and
all other affected parties were noticed by publication in the newspaper, as required.
(Please see Exhibit D.) Assuming tonight's meeting does not contain any procedural
flaws, staff believes that proper due process has been provided.
2. Jurisdiction -The Director's jurisdiction to interpret the Land Use Code is established in
Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the
jurisdiction, authority, and duties allocated to the Community Development Director.
One of the Director's duties outlined in the Chapter reads: "To render interpretations of
this Title or the boundaries of the Official Zor-e District Map pursuant to Chapter
26.30b. " Staff believes this language is clear and it does not appear that the applicant is
questioning this provision of the code.
3. Discretion -With respect to abuse of the Director's discretion, the Director did need to
use his discretion in rendering the interpretation. The question is whether the Director
abused that discretion or acted unethically. In analyzing the code, it was clear to the
Director that the term ``slope" is not a defined term. However, "berm" is used in the
definition of a "structure" as something that is constructed on a site. This implies a
difference between natural conditions and man-made conditions.
Staff tends to approach these sorts of tasks with a very pragmatic and realistic
administration of development limitations. The Land Use Code does not predict every
type of circumstance. Staff considers the text of the code as well as the effects that would
be expected with different interpretations. In this particular example, allowing man-made
topography to affect a property's development rights would apply to many properties in
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town and represent a significant policy change to the traditional administration of Floor
Area. The Director believes that his discretion was applied appropriately and that the
interpretation was rendered ethically.
CODE INTERPRETATION AND CODE AMENDMENT:
The question in a code interpretation is ia~hat does the code say? On occasion, applicants
seek a code interpretation because they believe the code should say something else. The code
amendment process is the proper venue for the question what should the code say?
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
interpretation. The second finds that the Director exceeded his jurisdiction, abused his
authority, or failed to provide due process and reverses the interpretation.
RECOMMENDATION:
Staff believes the Director" s interpretation was rendered ethically and that no abuse of
authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold
the Director's interpretation by adopting the proposed Resolution affirming the
interpretation.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: (all motions must be made in the positive)
'`I move to approve Resolution No. ~, Series of 200'x, [affirming or reversing] the
Community Development Director's interpretation of the Land Use Code regarding Man-
made topography and Floor Area."
ATTACHMENTS:
Exhibit A -Interpretation dated August 28, 2009, with attachments
Exhibit B -Appeal letter from Jody Edwards
Exhibit C -Land tlse Code Section Regarding Appeals
Exhibit D -Affidavit of notice
RESOLUTION N0.
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING MAN-MADE TOPOGRAPHY AND THE
CALCULATION OF FLOOR AREA.
WHEREAS, the Community Development Director received a request for a
interpretation of the Land Use Code regarding man-made topography and the calculation of
Floor Area from the owners of 413 West Hopkins represented by Jody Edwards, attorney; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered
a decision and the applicant sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation
of the Director or modify or reverse the Interpretation upon a finding that there was a denial of
due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and verbal testimony
from the appellant, the Community Development Director, and has found that the Director
provided due process and neither exceeded his jurisdiction or abused his authority in rendering
the Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is
necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community
Development Director's Interpretation of the Land Use Code regarding man-made slope and the
calculation of Floor Area.
This Resolution 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 provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution 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.
APPROVED by the Aspen City Council at its regular meeting on , 2009.
ATTEST:
Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor
APPROVED AS TO FORM:
John Worcester, City Attorney
Resolution No. ,Series of 2009. Page 1
RESOLUTION N0.
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING MAN-MAllE TOPOGRAPHY AND THE
CALCULATION OF FLOOR AREA.
WHEREAS, the Community Development Director received a request for a
interpretation of the Land Use Code regarding man-made topography and the calculation of
Floor Area from the owners of 413 West Hopkins represented by Jody Edwards, attorney; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered
a decision and the applicant sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation
of the Director or modify or reverse the Interpretation upon a finding that there was a denial of
due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and verbal testimony
from the appellant, the Community Development Director, and has found that the Director did
not provide due process or either exceeded his jurisdiction or abused his authority in rendering
the Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is
necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community
Development Director's Interpretation of the Land Use Code regarding man-made slope and the
calculation of Floor Area. A property's development rights shall be derived Jrom the
topographic conditions of the site, as may be modified from time to time.
This Resolution 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 provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution 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.
APPROVED by the Aspen City Council at its regular meeting on , 2009.
ATTEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
Michael C. Ireland, Mayor
Resolution No. ,Series of 2009. Page 1
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION:
APPLICABLE CODE SECTION:
EFFECTIVE DATE:
WRITTEN BY:
APPROVED BY:
City of Aspen
26.575.020.0- Lot Area
August 28, 2009
Wf /1~4 IH~
Chris Bendon,
Community Development Director
Chris Bendon,
Community Development Director
SUMMARY:
This Land Use Code interpretation clarifies how man-made grades are considered in
determining Lot Area and Floor Area for development parcels. Staff interprets the Land
Use Code to not prohibit the consideration and acceptance of an estimated natural, pre-
development topography in the calculation of Lot Area.
BACKGROUND:
The property at 219 South Third Street has been the subject of an ongoing land use review
for an historic lot split and other reviews. There has been discussion about the grading of
the lot and whether there should be a reduction in Lot Area (and a consequent reduction in
allowable Floor Area) due to the current grading of the property.
The interpretation request has been submitted by Paul and Angela Young, the owners of
413 West Hopkins Avenue, represented by Attorney Jody Edwards; and, Suzanne Foster,
owner of 219 South Third Street, represented by Attorney Bart Johnson.
DISCUSSION AND INTERPRETATION:
The calculation of Floor Area relies on the calculation of Lot Area. The City's Land Use
Code includes a section titled "Calculations and Measurements." This section describes
how the City measures building heights, floor area, etc, and includes a section on
measuring Lot Area, which reads as follows:
Lot area. Except in the R-15B Zone District, when calculating floor area ratio, lot
areas shall include only areas with a slope of less than twenty percent (20%). In
addition, half (.50) of lot areas with a slope of twenty to thirty percent (20-30%)
may be counted towards floor area ratio; areas with slopes of greater than thirty
percent (30%) shall be excluded. The total reduction in FAR attributable to slope
reduction for a given site shall not exceed twenty-five percent (25%).
Also excluded from total lot area for the purpose of floor area calculations in all
zone districts is that area beneath the high water line of a body of water and that
area within a vacated right-of--way or within an existing or proposed dedicated
right-of--way or surface easement. Lot area shall include any lands dedicated to the
City or County for the public trail system, any open irrigation ditch or any lands
subject to an above ground or below ground surface easement such as utilities that
do not coincide with road easements. When calculating density, lot area shall have
the same exclusions and inclusions as for calculating floor area ratio except for
exclusion of areas of greater than twenty percent (20%) slope.
The Land Use Code does not define "slope." However, there is a definition of ``Structure,"
which reads as follows:
Structure. Anything constructed, installed or erected which requires location on
the ground or is attached/supported by something on the ground, inclusive of
buildings, signs, roads, walkways, berms, fences and/or walls greater than six feet
(6') in height, tennis courts, swimming pools and the like, but excluding poles,
lines, cables or similar devices used in the transmission or distribution of public
utilities.
The Land Use Code does not define "berm.'' Given the context of how the term is used in
the above definition, staff believes a berm is a man-made landform that can be constructed
on a property. Webster's dictionary defines berm as a narrow shelf, path, or ledge. It is
reasonable to consider the rail bed a berm that was built on the land.
The City's planning office has accepted an applicant's interpolation of natural topography
in cases where evidence of unnatural topography exists. A project under construction in
the east end neighborhood is the most-recent example. This parcel is located at the corner
of East Hopkins Avenue and Midland Avenue. Midland Avenue is a former railroad right-
of-way. The parcel (prior to construction) had evidence of re-grading to create a flat area.
The result was a portion of the lot being very steep and retained with a constructed
embankment (a boulder wall). There was also some evidence of the rail bed itself being a
man-made elevated form along and partially within this site.
The owner of the east end property asked staff to consider an interpolated natural pre-
development grade and submitted a grading plan estimating a natural, prior to development
condition. The City's Community Development Engineer evaluated the site and
determined that the landscape had been altered from it original condition. He also
considered the interpolated grading plan a reasonable estimate of the site's pre-
development condition. This grading plan was accepted as the basis for determining Lot
Area and Floor Area and a permit was issued.
The request letter from Attorney Edwards questions whether the rail bed through the 219
South Third Street property is in-fact man-made. A site visit performed by the City's
V
Development Engineer confirmed that the rail bed is not likely a natural landform. (see
attached email.) The Community Development Director also walked the site and agrees
that the landscape has been altered at some point in it history and is not likely a natural
condition.
If the Lot Area of a parcel only assumes the current grades of a site just prior to
development and as may be altered over time, a property owner could re-grade the steep
portions of the parcel to increase their development rights. For example, the steep portions
of a parcel could be "benched" or "terraced" to create a series of flat areas with retaining
walls. This would reduce the total area of steep slope and increase the property's
development rights. ~ ,~ ~, 4L , -- _N r
The picture at right helps demonstrate this
possibility. The area in the foreground and right
side of the picture has been terraced and would
give a property more Floor Area than the area in
the upper left side of the picture.
While this could take a lot of work for a property ,, ,~~: r ;-,~ '~ :sr ~~ sjk~y~.„~ ""*
owner, an owner could be motivated to terrace r r ~ ,~; - , " ,:a ~r`. '~,+
their parcel to achieve a higher Floor Area. There x."~~~~~
are roughly 2,436 parcels within the City of Aspen. 1,028 of these parcels include slopes
of 20% or more, the threshold above which reductions in development rights are effective.
Staff does not believe that motivating property owners to terrace their properties could
have been the intention of the code drafters. City Council meeting minutes from the code
amendment hearings when this provision was added to the code do not reference slope.
Staff believes that by "slope," the drafters meant the natural terrain prior to being affected
by development. Otherwise, the "slope" could be altered to enhance the development
rights and circumvent the purpose of the reduction. Staff does not believe the drafters
intentionally created a loophole. Furthermore, staff believes that a community interest
exists in recognizing legitimate pre-development conditions rather than encouraging
unnecessary and disruptful re-grading of properties to augment development rights. Staff
interprets the Land Use Code to not prohibit the consideration and acceptance of an
estimated natural, pre-development topography in the calculation of Lot Area.
Similar approaches can be found in the Land Use Code. The Code does not allow for an
increase in development rights for other similar actions a property owner could do to their
property. For example, the City prohibits one from artificially elevating their site in order
to build a taller structure. Otherwise, a property owner would be awarded with increased
heights by mounding-up their site. The City does not allow vacated rights-ol=ways to add
to a property's development rights. Otherwise, property owners would be encouraged to
vacate alleyways or other rights-of--way in town to achieve larger buildings. In a similar
vein, the City does not discourage a property owner from dedicating a trail or pedestrian
easement. These sorts of public easements do not reduce a property's development rights.
These examples seem to point to a concerted effort by the City to promote good land
~ 4
stewardship in light of high property values and strong desire to increase development
rights.
LIMITATIONS OF DECISION:
This interpretation relies on the City"s Land Use Code and zoning regulations currently in
effect, which are subject to change. The interpretation is subject to being reversed or
altered by City Council upon appeal. This interpretation shall be valid until such time as
the Land Use Code or zoning regulations are amended. This interpretation does not create
a vested right. This interpretation will be maintained in the official record of all
interpretations as provided under Section 26.306.O10.E.
APPEAL OF DECISION:
Any person who has requested an interpretation inay initiate an appeal by filing a notice of
appeal on a form prescribed by the Community Development Director. The notice of
appeal shall be filed with the Com_ munity Development Director within fourteen (14) days
of the date of the decision being appealed. Failure to file such notice of appeal within the
prescribed time shall constitute a waiver of any rights to appeal the decision.
EXHIBITS:
A -Edwards letter
B -Johnson letter
C -Permit Information for 1215 East Hopkins Development
D -Email from Larry Doble.
HERBERT 5. KLEQJ
LANCE R. COTE, PC*
JOSEPH E EDWARDS, III, LLC
COREY'C.ZURBUCH
EBEN P. CLARK
IvIADHU B. KRISHNAMURT[
DAVID C. UHL[G
also admitted in Californi9
HAND DELIVERY
KLEIN, COTE &EDWARDS, LLC
hsk n(~~ ccelaw.net
trc@kcelaw.net
jee@kcelaw.net
etz cCilkcelaw.net
epc@kcelaw.net
mbk@kcelaw.net
dcu@kcelaw.ne[
Chris Bendon
City of Aspen
Community Development Department
130 S. Galena St., 3`d Floor
Aspen, CO 81611
ATTORNEYS AT LAW
August 5, 2009
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2EET, STE. Z03
'ELEPHONE: (970) 925-3700
FACSlM1LE: {970) 925-3977
www.kcelaw.net
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Re: Request for Interpretation Pursuant to Section 26.306.010, City Code;
219 South Third Street, Aspen, CO (the "Property")
Dear Chris:
On behalf of our clients, Angela and Paul Young, I request Code interpretations pursuant
to Section 26.306.010, City Code. As you are aware the Youngs are the owners of property
known as 413 West Hopkins, Aspen, CO which is across the alley from the Property. The
Owner of the Property has filed a development application with the City under Ordinance 48 for
Historic Landmark Designation and negotiation of certain benefits. One of those benefits relates
to the developable Floor Area for the Property. There are two separate interpretations we need
from you concerning Floor Area, the first relates to steep slopes and the second relates to a deck.
Steep Slopes.
The Property contains significant steep slopes. Based on the development application for
the Property, approximately 25% of the Property is steep slopes in excess of thirty percent.
Originally the applicant and staff agreed that the slopes needed to be deducted from the Lot Area
for purposes of calculating allowable Floor Area. On July 22, 2009, we received an email from
Amy Guthrie which indicated that staff had determined, contrary to prior representations to both
the Historic Preservation Commission and the City Council, that the steep slopes on the Property
would not be deducted from the Lot Area for purposes of calculating allowable Floor Area
because such steep slopes appeared to be man-made, not natural grade. That issue was discussed
with HPC that evening. This is contrary to the clear language of the Code Section
26.575.020.0, which states as follows (emphasis added):
Chris Bendon
City of Aspen
Community Development Department
August 5, 2009
Page 2
I~ot area. Except in the R-15B Zone District, when calculating floor area ratio, lot
areas shall include only areas with a slope of less than twenty percent (20%). In
addition, half (.50) of lot areas with a slope of twenty to thirty percent (20-30%)
may be counted towards floor area ratio; areas with slopes of greater than thirty
percent (30%) shall be excluded. The total reduction in FAR attributable to slope
reduction for a given site shall not exceed twenty-five percent (25%).
There is nothing in the Code language above which provides an exception for man-made
grades. The steep slopes, if they are man-made, date back to 1887 when the railroad arrived in
Aspen. Consequently, assuming the steep slopes in question are man-made, they were in
existence many decades before the Land Use Code was adopted with the above language. The
drafters of the Code were aware of the slopes existing in the City when the Code was adopted.
While the Code does not provide a rationale for deducting steep slopes from Lot Area, it seems
likely that slope stability is the likely reason. And if slope stability is the justification for
exempting steep slopes from Lot Area then man-made slopes which are generally less stable
should provide more (not less) justification for reduction of Lot Area.
I understand the rationale for using historical grade for measuring height. And there may
be some justification for waiving the deduction from Lot Area for very small man-made
anomalies such as landscaping berms which will not be affected by or which will be entirely
removed by development. But that is not the case here. In this case there is a significant land
form which has existed for many decades and passes through numerous properties in the City. In
the event that the City makes a determination that the steep slopes associated with the railroad
right of way are not to be deducted from Lot Area, I suspect many land owners will seek to
increase the floor area developed on their property.
The Code is plain and clear that slopes in excess of 30% are to be deducted from Lot
Area for purposes of calculating Floor Area. As the United States Supreme Court has held, the
fundamental rule of statutory interpretation is that if the law is clear as written, then no
interpretation is necessary. "[I]n interpreting a statute a court should always turn to one cardinal
canon before all others. We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says there." Connecticut
National Bank v. Germain, 503 U.S. 249, 253-254 (1992). Indeed, "[w]hen the words of a
statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete."' Id at
254. Since this Code section is clear and unambiguous, no interpretation is necessary and all
slopes in excess of 30% are excluded from Lot Area for purposes of calculation of Floor Area.
Chris Bendon
City of Aspen
Community Development Department
August 5, 2009
Page 3
Deck Area.
We also received an email from Amy Guthrie dated July 28, 2009, in which Amy states
that staff has reviewed the area underneath the wooden deck on the south side of the Property
and determined that it is not a "loggia." Consequently, staff concluded that such area below the
wooden deck is not subject to inclusion in the calculation of whether the deck area exceeds 15%
and must be counted as Floor Area to the extent it exceeds 15% of the maximum allowable Floor
Area for the building pursuant to ~26.575.020.A.2, City Code. This misses the point. That area
is a concrete, sunken area attached to (appended to) the structure and covered by the upstairs
deck. While maybe not a loggia, the area below the wooden deck is also a deck, as defined by
the Code. Section 26.104.100 defines a deck as: "Deck. An outdoor, unheated area appended to
a living space but not intended for living." This exactly describes the space below the wooden
deck. As a deck this area below the wooden deck must be included in the deck area for purposes
of Section 26.575.020.A.2.
Consequently, we request your interpretation of (1) the above-quoted portion of Section
26.575.020.0., City Code, as it applies to properties with a significant portion of the lot
consisting of steep slopes and which steep slopes (whether man-made or natural) pre-date the
enactment of the Code, and (2) Section 26.575.020.A.2 as it relates to the area below the wooden
deck on the Property.
Enclosed is our Code Interpretation fee in the amount $50.00. If there is anything in
addition to this letter and fee that is required in order to pursue this interpretation or if you need
additional information from me, please contact me.
Sincerely,
KLEIN, CO~& EDWARDS, LLC
Edwards III
ce: Paul and Angela Young
youngll Bendon interpretation request.doc
~~;~;f-~
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4TTENJOHNSON
ROBINSON NEFF+RAGONETTI~
August 28, 2009
Chris Bendon, Director
Aspen Community Development Departrr-ent
130 South Galena Street
Aspen, CO 81611
J BART JOHNSON
870 544 4638
BART®OTTENJOHNSON COM
Re: Request for Interpretation Submitted by Klein, Cote 8c Edwards, LLC on behalf of Angela and Pau)
Young
Dear Chris:
This firm represents T. Foster and Company ("Foster"). By letter dated August 5, 2009, Klein, Cote &
Edwards, LLC submitted to your office a request for interpretation pursuant to Section 26.306.010 of the Aspen
Land Use Code (the "Request"). Foster owns the property implicated by the Request and therefore has standing
to oppose the Request. By this letter, I am requesting that Foster be recognized as a party to the Request and
that the interpretations of the Aspen Land Use Code advocated in the Request be rejected and denied.
dope Argument.
The arguments in the Request concerning the meaning and application of Section 26.575.020.0 should be
rejected. Your department has already considered this issue with respect to other land use applications and has
determined that man-made slopes should not be excluded from the Lot Area calculation for the purposes of
determining the permitted Floor Area for a Lot. This treatment of man-made slopes has been the policy of your
department for years. I am enclosing with this letter application and building permit materials for the project
located at 1215 East Hopkins Avenue, which is currently under construction. These materials cleazly
demonstrate your department's position in response to a prior request for interpretation on this precise issue. It
would be both unfair and improper to treat T. Foster and Company's property any differently.
Contrary to the contention in the Request, the language of Section 26.575.020.0 is not plain and clear. The term
"slope" is not defined in the Aspen Land Use Code. There is clearly a question about whether it is intended to
apply to natural slopes, man-made slopes, combinations of the two or all types of slopes.' This ambiguity has
I By way of comparison, consider the Aspen Land Use Code's treatment of "grade." It clearly states in the provisions
governing building heights that they are to be measwed from "natural or finished grade, whichever is lower." The
specification of both natural and finished grade eliminates ambiguity. The slope language in the Lot Area provisions does
not include clarifying language of this type.
420 EAST MAIN S7REET SUITE 210 ASPEN COLORADO 81611 P 970 544 4637 F 970 544 4632 W OiTEN10HNSON.COM
OENVER ASPEN STEAMBOAT SPRINGS
Chris Bendon, Director
August 28, 2009
Page 2
been recognized for some time and your department has been confronted with this issue before. As the person
charged by the City with administering the Aspen Land Use Code, you have well-established authority under
Colorado law to interpret the Code, and the interpretations you provide are to be given deference. Given that
you have already established a policy of interpreting the Lot Area exclusion language as not applying to man-
made slopes, we believe you are bound to remain consistent.
Deck Area Argument.
The deck area argument in the Request is not really a request for an interpretation at all. It is actually a question
about how the Aspen Land Use Code should be applied to given facts. Given that no final decision has been
reached on Foster's pending application, it is premature for the Youngs to be mounting challenges about how
the Code is being applied. But, in any event, the position advocated in the Request pushes the notion of a
"deck" to the extreme and is essentially an aggument for the idea that every second story deck should be double
counted because it has outdoor space under it that is appended to a home but is not intended for living. For that
matter, under the broad definition of deck espoused by the Request, the entire yard of a home could be
considered a deck. In this regard, it is important to point out that under Section 26.575.020.A.2, landscaped
terraces are not treated as Floor Area for any purpose. The term "landscaped terrace" is not defined. But we
submit that the area in question, with the addition of some planters, could just as easily be considered a
landscaped terrace. By necessity, your department is required to make judgment calls about how definitions and
language are applied. We contend that it is clearly within your sound judgment to determine that the area in
question is not a deck for the purposes of Section 26.575.020.A.2.
Sincerely,
J. Bart John
for the Firm
Enclosure
917165 1
cc: Suzanne Foster
Jody Edwards
To Whom It May Concern:
Adam Rothberg (Project Manager and Owner Representative} and John G. Martin (Architect of
project) representing the owner Stephen Rattner, met with James Linde and Todd Grange, City of
Aspen Community Development Department Planners, for apre-application conference at 10:00 am
November 6, 2006. We discussed the new-construction development project of asingle-family home
at the property located at 1215 East Hopkins Avenue (I.ot 4, Promeatory Subdivision). As a result of
issues discussed at that meeting, we respectfully submit this request for staff interpretation regarding
existing contour grades at the subject property.
The following is an excerpt from 26x104.100 -Calculations and'Measwenants - Clay of Aspen
Land Use Cods:
C. Lot Area. Except in the RI S-B zone district, when calculating jloor area ratio, lot areas shall include
only areas with a slope of less than 20%. In addition, half (.SD) of lot areas with a slope oj20-30'/ may be
counted towards floor area ratio; areas with slopes of greater than 30'~ shall be excluded. The total
reduction in FAR attributable to slope reduction for a given site shall not exceed 2S%a
Also excluded from total lot area jor the purpose ojjloor area calculations in all zone districts is that
area beneath the high water line of a body ojwater and that area within a vacated right-of-way, or
within an existing or proposed dedicated right-of-way or surface easement. Lot area shall include any
lands dedicated to the City of Aspen or Pitldn County for the public tmfl system, arty open irrigation
ditch, or any lands subject to an above ground or below ground surface easement such as utilities that
do not coincide with mad easements. When calculating density, lot area shall have the same
exclusions and inclusions as for calculating floor area ratio except jor exclusion of areas of greater
than 10% slope.
Ratfonaie for erantiing contour interpolation:
The comer lot is small and actually non-conforming in Minimum Lot Width in R-6 Zoning. The
contours have been scraped in an un-natural way to create a flat area for the existing house on the lot.
Since the lot has been flattened on the northern side, the contours are very steep as they climb back up
to meet the natural grade of the street along Midland Avenue. This creates as unnatural bowl effect in
the lot which is made worse by the use of a steep and tall noo-conforming boulder wall along a good
portion of lot edge near the comer of Midland and Hopkins Avenues.
The unnatural man-made grading is causing a large reduction in the amount of lot area that we can use
for F.A.R calculations. This is causing what we determine to be an unfair reduction of F.A.R. based on
arbitrary grade lines which do not reflect the actual gentle slopes that would have been present on this
lot prior to the previous development. We feel that if we could have the grades interpolated to match
what would have been a more natural and gradual grading of the site, we would have F.A.R. available
to us that would more closely match the other lots on this street and the neighborhood in general.
The architect has provided two existing site plans as reference for this argument. The existing site plan
shows the existing contours and hatching representing a large area of grades over 20%. The existing
site plan with interpolated grades still shows some azeas of hatching representing grades over 20%, but
there is not neazly as much allowing us to incttase, in a equitable way, the F.A.R. that should be
associated with this lot. The grades are shown as more natural and sloping gently, matching the slopes
of the street.
Therefore, we respectfully request that an approval regarding contour interpolation as it applies to the
unnatural and azbitr~ry grading of the previous development on this particular site, be granted.
Sincerely,
John G. Martin ;~ ^~
A~:v c ~~ Zoo
Request for staff interpretation -Interpolated Site Contours
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ATTACHMENT 3
DIMENSIONAL REQUIREMENTS FORM
Project: ~~7T-`:~ fZ f~',~' ~f 1/ir y.4L.E
Applicant: Armor.. •Rv-t'}}~r ~_
Location: IZtS 'lr• t4~~uan~5 ,4,Jt' . ;~ ur `!~ ~f~ci ic~rve~ s~~T~~+J+SIc~)
Zone District: .~t4~1.~•.~Fd ri~it:t ~~1Ct-rr~~,,Yl~s~ { ;~~lc?
Lot Sizc: Cv, t'!f? '^~~ ~{. _ _
Lot Area: y •~~ I-4. c?~S'~?~cv~cEC~ BY Stc>:wG~'a.ns~~ ~-~~r~.Srtttsf-t 1
(for the purposes of calculating }~larn• Area, Lot Area may be reduced f"or areas
~r•ithin the high water mark, easements, and steep s{opes. Pease refer to the
definition of Lot Area in the Municipal Code.)
Commercial net leasabl e: Lizisting:__ /`l~~ ^Proposed: •__,•__
1\'utnber of residcntiai units: Existing:.____~ _•_•~f'roposed: ~ _
Number of bedrooms: Eristing:_~____Proposed:_ S __
Proposed °io of demolition (Historic propeRies only): A
Dutl~ntsioras:
Cloor Area: Existing:~Allnx7ahle: 2~!~t~ 1roposed.• r: `~"o ~~ ~~ ~.C~IGi,+Sf+t r
Principal bldg. height: Existing: _LD' . ~~.311owable: 25 - ~ _Proposed.•_yS ~ _
Access. bldg. height: Existing:~A Al1oH~uble: Proposed:• • _
On-Site parking: Existing: I -lP tz. Required.-., 2 ~ i-v. S Proposed.• G`~5
°;° Site co~~eraoe: Existing: f ~'~ Required: SO `d Proposed.• ?U ~_
°~u Open Space: Existing: _ ~•C? `~•._ Required: Cp / Proposed: 7~ .o
hront Setback: lxisling: ,U•C • Reyuired:_ .O 4 _ __ _Proposetl.•~G r
Clear Setback: Existing: tJ _C Regur-•ed.•_(G t• P-•opnsetl.• i ~'
Combined F~'}Z:
1•.xie•ting: t;.t Required.•_ ~'!-• 1
Proposed: ~ '~
Side Setback: F.xisting:__N t ._ Reyuired.• !F . ~ ~ Proposed: ~r • i
Side Setback: Existing: r{• • C_ _lequired.• S ~ _Proposed: r _
Combined Sides: Existing: NAG Reyuired: J) .7 _Prnposed:1f • 7•_
Distance Bctwccn Lxisrrng _ Al A .Reyuired: __ Proposed.•__
Buildings
I:xistinb non-conformitiess or encroachments: T`+t- ~: i f `' ~!~ ~ 'fir-`1,~~r)Y'.MrNL,
TC~u t :'rti ~-H ~ ~+•ii Flr~:•~r 1 i ~~~~(<< • `IR)~'t7SCi•41CIQt r~(;.~ 'S 4. •~; t't./~.~11 ~2_
Variations requested:
i
C~
IvOV U b ~u06
--
ASPEN + PITKIN COMMUNITY DEVELOPMENT DEPARTMENT PERMIT APPLICATION .~
PITKlN COUNTY ^ CITY OF ASPEN ^
.0 South Galena 970 / 920-5526 970 / 920-5090 ~y~ Z~? ~~~eneral
Aspen, CO 81611 970 / 920-5532 Inspection Line 970 / 920-5448 Inspection Line PERMIT NO. permit
scant to c fe twmbered s es on .
JOB AD!)FiESS
1 • (Zl ~ C I.G, rJ 5 ~ Go g I ~O [ 1 CO ~
2. LEGAL DESCRIPTION
Sty. r1 a r`J~ Q F3 v l•c..: ( i'roT : D E
OWE MAIL ADDRESS aP PHONE
3. 121 ~ ~ Pbcc~S LrrG- 24-6' (1~~GE C~ P• (,..1~a'TOrJ t~L- FN
OWNER'S AUTHORIZED AGENT MAII AOOAESS PHONE LICE NO
4. ~ MH
CONTRACTOR MFULADDRESS
5. ,~;-~,r~s,~..~ ca~,sS. Cl1!r. ~rr~.war~ ~~,2 q ~t l ~I t ~', qZ~, .~o~ ~ ~~. MS
4 RF
ARCHITECT OR ENGINEER OF RECORD NWL AppRESS `~~ 6~NE s'Zr~' ~TJO~j C~ pp ~N
6. p~ fir. ~'t~71 ~ ~ c~. 1'~7~ ~~O ~~-~ 7
~OF WOiOC ENERGY CODE FEE USE TA% CENSUS CODE G.I.S. FEE f7
7• plNEW O ADDITION ^ ALTERATION ^ REPAIR ^ /~ ~
~ 2. 55',DU z
D
USE OF BUILDING SINGLE FAMILY ^MULtI-FAMILY PLAN CHECK PEAMrT FEE ZONING FEE./
8• ~ COMMERCiAVRESIDENTIA~^ COMMERCIAL ^ OTHER 'tT !1~ 1 n CI~ tl ~9r" t t r i ! V 1 J I . C7 t'1 '~
9. ~7 Lr'~ g~ . DO 10. ~ ~ T}i1S Ir O
11. Is there food service in this building ^ YES l4'~Q
12. Is LPG used? ^ YES [~io
13. Parcel ID# call 920-5160 ~'3 f
14. Description of Work
lC.f~P!/LLCil~ /.// NNW t l w] /.///~
PRESUBMIITAL
APPUG110N ACCEPTED
APPRWED FOR 1.43UANGE envuti. ro
r'~A /~
lJ 1 ppy ENGINEER„
~, ~ By ~
BY ~C :L! L
- R4RKs
~~ DATE ~f
DOTE ^?~+'L d
-~ `Qp NATURAL RI
DATE FlRE AAARSI
NOTICE
SEPARATE PERMfTS ARE REQUIRED FOR ELECTRICAL. PLUMBING. HEATING, VENTILATING
OR AIR CONDITIONING. wATEA rAP
ASPEN CON
O~cupricy Group
r~-3 :Z~cs TRc
No, d Ship
Firo SprFYdns aeQufradt ~IYp ^No
Alarm 9ysWn RaquleC7 ^tros ^No
AIrTFtORREO BY
THIS PERMIT BECOMES NULL AND VOID IF WORK OR CONSTRUCTION AUTHORIZED IS OTHER E h D
NOT COMMENCED WITHIN 12 MONTHS, OR IF CONSTRUCTION OR WORK LS SUSPENDED ~ ~
OR ABANDONED FOR A PERIOD OF 180 DAYS AT ANY TIME AFTER WORK IS COMMENCED. ~ pAYM ENT OF PITKI N COUNTY USE TAX
CERTIFY THAT i HAVE
I rvu atc I I1P11 IMt y7HUC,:~UHE/AND/OFi HrJ.IECi IS BUILT IN COMPLIIWCE WRH ALL
IanAn v ~y ~ -
MiINT NAMt
L
MONTHLY OR QUARTERLY RETURNS WILL BE SUBMITTED.
D DEPOSIT METHOD .5% OF 2596 OF THE PERMfi VALUATION PAID
AT ISSUANCE. A FlNAL REPORT ON TOTAL ACTUAL COST MUST
BE FILED WITH IN 90 DAYS OF SUBSTANTIAL COMPLETION OF
WORK ANO / OR ISSUANCE OF THE CERTIFICATE OF OCCUPANCY.
^ EXEMPT: EXEMPT ORGANIZATION
^ RESALE: STATE 8 PITKIN COUN1TiY RESALE N0.
THE DEPOSR MEIN WILL BE ASSUMED UNLESS OTHERWI~ NOTED.
ANYONE WHO USES AND / OR CONSUMES BUILDING MATERUILS AND FD(TURES N
PrnQN CW NTY IS SUB.IECT TO THE S% USE TAX.
PROPERTY LIENS MAY BE PLACED ON THE OWNER'S AND /OR THE
CONTRACTOR'S PROPERTY WHEN USE TAX IS NOT PAID
THIS FORM IS A PERMIT ONLV WHEN VALIDATED WORK STARTED WITHOUT PERMIT WILL BE DOUBLE FEE
Energy Code Fee Plan Check Fee Zoning Fes GlS Foe Pernik Fee Use Tax Deposit Fee Other Fees
ll$Z•S~6 -7G$~'. S'y - lYYypo S%"~o ~Igq}~.y0
os7 6
~~ _;7T~ wHn
Owner's Name rL( ~
Contact Person 5 ~
Leal
Zone
PLANNING APPROVALS:
ZONING CHECKLIST
D a#a
NS L L C Pemut
~` ~ e~.k Phone
HPC Conditional Use
Design Review 8040 Greenline
Stream Margin View Plane
GMQS Special Review
Bd of Adjust PUD
TYPE OF WORK
O
ew Construction RemodeUAddition Demolition/Relocation
Sin a-Fanul - Duplex Accessory Structure Commercial
Multi-Family - # of units Employee House - # of units
LOT SIZE: ~p , (~ ~ LOT AREA: 1
~~
SETBACKS Allowed rinci aUAcc Pro sed (Princi allAcc)
Front ~ / b .
Rear b - O
Combined Front/Rear /
Side ~ ~~ - ~ ~
Combined Side ~
Distance btw buildin s
Comer Lot
HEIGHT (PrincipaVAccessory): Allowed: iZ-~ Proposed: ~ ~
/ -
FLOORAREA: Allowed: .3.? Proposed: r
Exempt Space (s.f.)
Garage -~~ U~ Subgrade / ~ ~ 7iDecks~~ ~f 735
~ S ~ c.~ ~.TS o
NET LEASEABLE SF Existing: Proposed:
OPEN SPACE % Required: Proposed:
BEDROOMS Existing: Proposed: S
SITE COVERAGE Allowed: Proposed: ?'
ON-SITE PARKING Required: ?i Proposed:-" 2
FEES: School: ~~ ~~ark Dedication: ~ Cash-in-lieu:_ Q~/~~ ~ ~L~
Planning ees paid: ~'~m ~ r
c~ ~i~'!'~ WIC { ~~ O (S . ~1w 7. /~' ~251~ - ~ -- L 3 a. ~! t~7
.~ _ . _ ~. 1 . ~ ,~ . n . ice, ~.,,
Crn~ [~- v
RESIDENTLAL DESIGN STANDARDS
SITE DESIGN
Building Orientation: ~
Build-to-Lines: r
Fence: ~ /,~'
PARHING, GAR
Access (i.e. alley):
Garage width:
Garage location:
Driveway cut:
Entrance width:
Single stall doors?
~iGES~~ARPORTS
. OGL
D
D1L
CONTEXT
Materials
Inflection:
BUILDING FORM
Secondary Mass: /r~/-~-
BUILDING ELEI
Windows:
Door:
Porch:
Principal window:
One story element:
Lightwells:
NTH ~ 3 , f 2 c~ ~~~k~+/! ~f
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(N t 1'v~. GcrC~ -- 7?. ,~-~- , ~s/ 5~.f'"~ r,~CO Ne ~ d ~ /Lc
~5 ~'~ ~~ ~ ~ ~~ tie ~~k„(i~
Chris Bendon
From: Larry Doble
Sent: Thursday, August 27, 2009 7:57 AM
To: Chris Bendon
Subject: RE: 219 So. 3rd Street
Good morning,
Page 1 of 1
~~~~ ~
~roa ~~tw~:
It is very unlikely that the RR would have laid their tracks on natural ground. Some form of fill or excavation and
then fill would be the norm. In my opinion it is man-made; but, the only way to be sure is do borings or some
other invasive soils analysis.
Larry
From: Chris Bendon
Sent: Wednesday, August 26, 2009 6:01 PM
To: Larry Doble
Subject: 219 So. 3rd Street
Larry: We spoke briefly the other day about this property. I assume you've had a chance to visit the trail along
the south side of the 219 property that is roughly along the former midland railroad alignment. In your opinion as
a civil engineer and the City's Development Engineer, do you think that area is a natural landform or one that is
man-made? Thanks.
Cheers,
Chris Bendon, AlCP
Community Development Director
City of Aspen ~ 970.429.2765
www.aspenpitkin.com/
8/28/2009
i
KLEIN, COTE & EDWARDS, LLC '
ATTORNEYS AT LAW ~ / A~ ~/`~
^1rr,~
HERBERT S. KT.FIN ltsk r(fJ'ccelaw.net
LANCE R. COTE, PC* Irc(~kcelaw.ne[
JOSEPH E. EDWARDS, III, LLC jeeQkcelaw.net
COREY T. ZURBUCH ctz cdkcelaw.net
EBEN P. CLARK epc n kcelaw.net
MADHU B. KRISHNAMURTI mhk~akcelaw.net
DAVID C. UHLIG dcu@kcelaw.net
201 NORTH MILL STREET, STE. 203
ASPEN, COLORADO 51611
TELEPHONE: (470) 925-3700
FACSIMILE: (970) 925-3977
Hu~w.kcelaw.net
* also admitted in California
September 9, 2009
RECEIVED
Chris Bendon
City of Aspen ~~~ u ~ ~uQ9
Community Development Department C:I ~ Y Ul- HSNEN
130 S. Galena St., 3fd Floor ';OM~ltI~ITY DEV.ELOR~lENT
Aspen, CO 81611
Re: Notice of Appeal concerning Land Use Code Interpretations of "Lot Area"
and "Decks"; 219 South Third Street, Aspen, CO (the "Property")
Dear Chris:
This letter constitutes a Notice of Appeal pursuant to Section 26.316.030 of the Aspen
Municipal Code. This office represents Angela and Paul Young, the owners of property known
as 413 West Hopkins, Aspen, CO which is within 300 feet of the Property.
On August 30, 2009, Code interpretations concerning the definitions of Lot Area and
Decks (the "Interpretation" or "Interpretations") were issued in response to my letter of August
5, 2009. The purpose of this letter is to appeal those Interpretations to the City Council pursuant
to Code Chapter 26.316. The basis for the appeal is that the Interpretation were issued based on
an abuse of discretion.
A copy of my letter of August 5, 2009 is attached hereto and the arguments presented
therein are incorporated herein by this reference. Additionally, please consider the following.
Lot Area.
In the Interpretation concerning Lot Area, staff expresses concern that a property owner
could re-grade steep slopes in a "benched" or "terraced" fashion and thereby increase the
allowable floor area on the site. Re-grading is defined as development in the Code and therefore
requires a development permit (or exemption) under the Code. Any such permit could very
easily be granted with a notation which requires an acknowledgement by the lot owner that the
granting of such grading permit will not create additional allowable floor area on the lot by virtue
of the elimination of steep slopes.
n
RECEIVED
Chris Bendon
City of Aspen
Community Development Department
September 9, 2009
Page 2
SEP ~~ ~ 2009
CITY ~f- A5PEN
~ON~fiUNfTY D~LOPIVIENT
The Interpretation states: "Staff believes that by "slope," the drafters meant the natural
terrain prior to being affected by development." As stated in the August 5, 2009 letter (and as
has been reiterated by both the Colorado Courts and the U.S. Supreme Court), there is no
"interpretation'' to be made when the language as written is clear and unambiguous. There is
nothing ambiguous about the definition of Lot Area as written; it is only that "staff believes" the
drafters of the code meant something other than what was written. Nowhere in the definition of
Lot Area do the words "natural terrain prior to being affected by development" appear. This
phrase is something staff has added to the definition. Instead, the Code clearly states: "areas
with slopes of greater than thirty percent (30%) shall be excluded." This is a clear, declarative
statement which leaves no room for making a distinction based on natural or man-made terrain.
If this language results in hardships, land owners can appeal to the Board of Adjustment or the
Council can amend the Code. But it is an abuse of discretion for staff to "interpret" the Code
different from the clear language of the Code.
Both staff and Mr. Bart Johnson (on behalf of the owner of the Property) assert that staff
has previously interpreted the term steep slopes to not include man-made slopes. While this
provides a course of conduct and demonstrates that staff is not showing the applicant for this
Property any favoritism, it does not justify the Interpretation. Two wrongs do not make a right.
The fact that there have been prior un-appealed staff determinations that man-made steep slopes
are to be excluded from the deductions from Lot Area does not justify further errors in the
application of clear language.
At the bottom of page three of the Interpretation, staff points out that other provisions of
the Code do not allow a property owner to artificially elevate the land to increase heights or to
add a vacated right of way to lot area in order to increase floor area; and the Code does not
penalize a land owner by reducing lot area for dedicated public trials. Each of these assertions is
correct. And, snore importantly, each of these provisions is specifically and clearly provided in
the existing language of the Code. None of these provisions are based on an interpretation of the
Code by staff. For example, the Code specifically provides that height is to be measured ``from
natural or finished grade (whichever is lower) at any point around the perimeter of the building."
The definition of Lot Area specifically excludes areas which are vacated rights of way and
specifically includes dedicated public trails. This is very different from the instant case where
there is clear and unambiguous language that states steep slopes are to be excluded from Lot
Area, and staff believes that this language should mean "natural terrain prior to being affected by
development.'' The drafters of the Code clearly had the ability (as demonstrated with regard to
the definition of height) to limit the slopes to be deducted from Lot Area to "natural" slopes, not
man-made slopes. The fact the drafters of the Code provided that the measurement of height
should be made from the lower of natural or finished grade but did not limit the steep slope
deduction to naturally occurring steep slopes, in fact, indicates an intent that all steep slopes
(man-made or natural} should be excluded from Lot Area.
Chris Bendon
City of Aspen
Community Development Department
September 9, 2009
Page 3
Deck.
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In the Interpretation of Decks, staff ignores the word "appended" in the definition of a
deck. Staff asserts that under our interpretation of decks all decks would be double counted
because all areas under a deck (and even yards along the sides of buildings). In this case the area
below the wooden deck is a concrete deck which is "appended" to the house by a concrete slab
and by block walls. This is not to be counted because it is area beneath a wooden deck, but
because it is area "appended" to the house and is therefore a deck under the Code definition of a
deck. If it is not a deck, then it is a "loggia" as defined by the code, because it would be a parch
"attached" to a living space under a roof as an integral part of the building.
Enclosed are our (1) Land Use Application Form, (2) Agreement to Pay Fees and (3) the
fee in the amount $735.00. If there is anything additional required in order to pursue this Appeal
of these interpretations or if you need additional information from me, please contact me. It is
my understanding that the City will be responsible for publishing Notice of the Appeal hearing
date.
Sincerely,
KLEIN, COTS & EDWARDS, LLC
Edwards
ec: Paul and Angela Young
youngll Bendon appeal code interpe[ations.doc
G
Chapter 26.306
INTERPRETATIONS OF TITLE
Sections:
26.3 06.010 Interpretation.
26.306.010 Interpretation.
~+~a i~
A. Authority. The Community Development Director shall have the authority to make all
interpretations of the text of this Title and the boundaries of the zone district map.
B. Initiation. An interpretation maybe requested by any affected person, any resident or real property
owner in the City of Aspen, or any person having a contractual interest in real property in the City of
Aspen. The Community Development Director shall have the authority to initiate interpretations of
Title 26.
C. Procedures.
1. Submission of request for interpretation. Before an interpretation shall be provided by the
Community Development Director, a request for interpretation shall be submitted to the
Community Development Director.
2. Determination of completeness. Within fifteen (15) days after a request for interpretation has
been received, the Community Development Director shall determine whether the request is
complete. If the Community Development Director determines the request is not complete, he
shall serve a written notice on the applicant specifying the deficiencies. The Community
Development Director shall take no further action on the request for interpretation until the
deficiencies are remedied.
3. Rendering of interpretation. After the request for interpretation has been determined
complete, the Community Development Director shall render an interpretation within fifteen
(15) days. The Community Development Director may consult with the City Attorney and
review this Title and the zone district map, v~~hichever is applicable, before rendering an
interpretation.
D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail.
E. Official record. The Community Development Director shall maintain an official record of all
interpretations in the Community Development Department, which shall be available for public
inspection during normal business hours. Once an interpretation is rendered, public notice describing
the interpretation shall be published in the legal notice section of an official paper or a paper of general
circulation in the City of Aspen. Such notice shall be provided within fifteen (15) days of the
interpretation being rendered, and shall be substantially in the following form: "A code interpretation to
City of Aspen Land Use Code. August, 2007.
Part 300, Page 17
Section 26.xx.xx of the City of Aspen Land Use Code , requested by xx, was rendered on xx/xxlxx and
is available for public inspection in the Community Development Department."
F. Appeal. Any person who has made a request for interpretation may appeal the interpretation o£the
Community Development Director to the City Council in accordance with the appeal procedures set
forth at Chapter 26.316.
(Ord. No..12-2007)
City of Aspen Land Use Code. August, 2007
Part 300, Page 18
Chapter 26.316
APPEALS
Sections:
26.316.010 Appeals, purpose statement.
26.316.020 Authority.
26.316.030 Appeal procedures.
26.316.010 Appeals, purpose statement.
The purpose of this Chapter is to establish the authority of the Board of Adjustment, Growth
Management Commission, the Planning and Zoning Commission, and City Council to hear and decide
certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002)
26.316.020 Authority.
A. Board ofAdjustment. The Board of Adjustment shall have the authority to hear and decide the
following appeals:
1. The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission
or Historic Preservation Commission.
B. City Council. The City Council shall have the authority to hear and decide the following appeals:
1. An interpretation to the text of this title or the boundaries of the zone district map by the
Community Development Director in accordance with Chapter 26.306. An appeal of this nature
shall be a public meeting.
2. Any action by the Historic Preservation Commission in approving, approving with conditions,
or disapproving a development application for development in an "H,", Historic Overlay
District pursuant to Chapter 26.41 ~. An appeal of this nature shall be a public meeting.
3. The scoring determination of the Community Development Director pursuant to Chapter
26.470. An appeal of this nature shall be a public meeting.
4. The allocation of Growth Management Allotments by the Planning and Zoning Commission
pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting.
5. Any other appeal for which specific authority is not granted to another board or commission as
established by this title. An appeal of this nature shall be a public meeting.
C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the
authority to hear and decide an appeal from an adverse determination by the Community Development
Director on an application for exemption pursuant to the growth management quota system in
accordance with Section 26.470.060(D).
City of Aspen Land Use Code. August, 2007.
Part 300, Page 35
~ Q
D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority
to hear an appeal from any decision or determination made by an administrative official unless
otherwise specifically stated in this title.
(Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002)
26.316.030 Appeal procedures.
A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the city office or
department rendering the decision or determination within fourteen (14) days of the date ofthe decision
or determination being appealed. Failure to file such notice of appeal within the prescribed time shall
constitute a waiver of any rights under this title to appeal any decision or determination.
B. Effect of filing an appeal. The filing of a notice of appeal shall stay any proceedings in
furtherance of the action appealed from unless the Community Development Director certifies in
v~~riting to the chairperson of the decision-making body authorized to hear the appeal that a stay poses
an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The
chairperson of the decision making body with authority to hear the appeal may review such
certification and grant or deny a stay of the proceedings.
C. Timing of appeal. The decision-making body authorized to hear the appeal shall consider the
appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is
practical under the circumstances.
D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by
publication to all other affected parties. (See section 26.304.060(E)).
E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body
authorized to hear the appeal shall decide the appeal based solely upon the record established by the
body from which the appeal is taken. A decision or determination shall be not be reversed or modified
unless there is a finding that there was a denial of due process, or the administrative body has exceeded
its jurisdiction or abused its discretion.
F. Action by tl~e decision-making body Bearing the appeak The decision-making body hearing the
appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision
is modified, shall be deemed to have all the powers of the officer, board or commission from whom the
appeal is taken, including the power to impose reasonable conditions to be complied with by the
appellant. The decision-making body may also elect to remand an appeal to the body that originally
heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if
any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals
shall be public meetings.
(Ord. No. 55-2000, §~ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002)
City of Aspen Land Use Code. August, 2007
Part 300, Page 36
~ J
u
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: ~ ~~'`~ ~ ~~~
' ,Aspen, CO
SCHEDULED ~UBLIC HEARING DATE:
ct,vt Q L ~ (o °~' 5 : ~ d D y~ , 200 ~
STATE OF COLORADO )
ss.
County of Pitkin )
I~ ~~..~ ~ ~ G ~ -~~} (name, please print)
being or representing 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 Lode m the tot~owmg manner:
~zrblication 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 (b0) 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)
Mineral Estate Owner Notice. By the certified mailing of notice, return receipt
requested, to affected mineral estate owners by at least thirty (30) days prior to
the date scheduled for the.initial public hearing on the application of
development. The names and addresses of mineral estate owners shall be those
on the current tax'r`ecords of Pitkin County. At a minimum, Subdivisions that
create more than one lot, Planned Unit Developments, Specially Planned Areas,
and COWAPs are subject to this notice requirement.
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.
S
Signature
The foregoing "Affidavit of Notice" was acknowledged before me this ~ day
of ~~~ , 200, by .~~, ~ ~ S c
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires: (~ ~c 0 ~~ t ~
Notary Public
LAURA
ATTACHMENTS AS APPLICABLE: ~: McYER
• COPY OF THE PUBLICA TION
• PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
~~ciros 081i0i2010
• LIST OF THE OWNERSAND GOVERNMENTAL AGENCIES'' ~~'D
BY MAIL
• APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE
AS REQUIRED BY C.R.S. §'24-65.5-103.3
q~Zppge[4092223 seen Times Weekly on Vctaoer
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
COPY: John Worcester, City Attorney
FROM: Chris Bendon, Community Development Director
RE: Appeal of Land Use Code Interpretation -Decks and Floor Area ~ ~,v
DATE: October 26, 2009 ~ ~ ~ ~[,~
SUMMARY:
One of the jobs assigned to the Community Development Director is to provide
interpretations of the text of the City's Land Use Code. This is a formal process in which an
applicant requests a written interpretation and, if they don't agree with the interpretation,
affords the applicant the right to appeal the decision to the City Council.
There are three criteria upon which the City Council has to decide an appeal of a code
interpretation. Based solely upon the record established by the original decision, the City
Council shall consider whether:
1) There was a denial of due process;
2) The administrative body exceeded its jurisdiction; or,
3) The administrative body abused its discretion.
These standards ask whether the Director's actions were ethical. The City's code states that
the decision or determination made by the administrative officer shall not be reversed or
modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for
the entire code section.)
In this case, the interpretation rendered by the Director addresses how areas underneath decks
are assessed against a property's development rights. The interpretation arose during the
review of 219 South Third Street and a neighbor's concern about the extent of potential
development on the site.
The City counts deck space towards a property's Floor Area after a certain amount of "free"
deck space. The City has never counted space underneath decks as additional "deck" space.
The definition of a deck is somewhat all-encompassing. "An outdoor, unheated area
appended to a living space but not intended for living." The City's code uses the same
language to describe a "balcony.'' The definition does not state the extent to which this space
is appended, functional, covered, accessible, etc. The code does not define the term
"landscape terrace," but these features are not counted towards Floor Area meaning they are
different somehow. In rendering the interpretation, staff had to determine the difference
1
between adeck/balcony and a landscaped terrace. Staff decided the difference centered
around the feature's elevation above grade -decks and balconies being elevated and terraces
being at grade level.
STANDARDS OF REVIEW:
1. Due Process -The review of 219 South Third Street was very contentious. The neighbor
raised concerns over the potential development that could occur on the site. The property
owner and the neighbor disagreed about the calculation of space underneath the deck
along the southern facade. Staff asked both parties to request the interpretation, allowing
either party to appeal the findings.
Certain timeframes affect when interpretations must be provided after a request and when
appeals need to be scheduled. Those timeframes have been met. As required by the Land
Use Code, the appellant was provided notice of tonight's meeting via registered mail and
all other affected parties were noticed by publication in the newspaper, as required.
(Please see Exhibit D.) Assuming tonight's meeting does not contain any procedural
flaws, staff believes that proper due process has been provided.
2. Jurisdiction -The Director's jurisdiction to interpret the Land Use Code is established in
Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the
jurisdiction, authority, and duties allocated to the Community Development Director.
One of the Director's duties outlined in the Chapter reads: "To render interpretations of
this Title or the boundaries of the Official Zone District Map pursuant to Chapter
26.306. " Staff believes this language is clear and it does not appear that the applicant is
questioning this provision of the code.
3. Discretion -With respect to abuse of the Director's discretion, the Director did need to
use his discretion in rendering the interpretation. The question is whether the Director
abused that discretion or acted unethically. In analyzing the code, it was clear that the
Code differentiated how decks and balconies were to be treated separate and apart from
landscaped terraces. Neither of these terms are defined in the Code, requiring the
Director use some discretion. The Director did look to the building code for some
direction as well as common understandings of these terms. The Director believes that
his discretion was applied appropriately and that the interpretation was rendered ethically.
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
interpretation. The second finds that the Director exceeded his jurisdiction, abused his
authority, or failed to provide due process and reverses the interpretation.
RECOMMENDATION:
Staff believes the Director's interpretation was rendered ethically and that no abuse of
authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold
the Director's interpretation by adopting the proposed Resolution affirming the
interpretation.
n
CITY MANAGER COMMENTS:
C
RECOMMENDED MOTION: (all motions must be made in the positive)
"I move to approve Resolution No. ~, Series of 200, [affirming or reversing] the
Community Development Director's interpretation of the Land Use Code regarding decks."
ATTACHMENTS:
Exhibit A -Interpretation dated August 28, 2009, with attachments
Exhibit B -Appeal letter from Jody Edwards
Exhibit C -Land Use Code Section Regarding Appeals
Exhibit D -Affidavit of notice
RESOLUTION N0. ~IU
(SERIES OF 2009)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING DECKS AND THE CALCULATION OF
FLOOR AREA.
WHEREAS, the Community Development Director received a request for a
interpretation of the Land Use Code regarding Decks and the calculation of Floor Area from the
owners of 413 West Hopkins represented by Jody Edwards, attorney; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered
a decision and the applicant sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation
of the Director or modify or reverse the Interpretation upon a finding that there was a denial of
due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and verbal testimony
from the appellant, the Community Development Director, and has found that the Director
provided due process and neither exceeded his jurisdiction or abused his authority in rendering
the Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is
necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community
Development Director's Interpretation of the Land Use Code regarding Decks and the
calculation of Floor Area. Spaces underneath decks that are similar in function to a deck shall be
considered deck space and counted towards Floor Area accordingly.
This Resolution 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 provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution 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.
APPROVED by the Aspen City Council at its regular meeting on , 2009.
ATTEST:
Kathryn S. Koch, City Clerk
APPROVED AS TO FORM:
.Iohn Worcester, City Attorney
Michael C. Ireland, Mayor
Resolution No. ,Series of 2009. Page 1
A
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION:
APPLICABLE CODE SECTION:
EFFECTIVE DATE:
WRITTEN BY:
City of Aspen
26.104.100 -Deck
August 28, 2009
~ ~~~
Chris Bendon,
Community Development Director
APPROVED B Chris Bendon,
Community Development Director
SUMMARY:
This Land Use Code interpretation clarifies the application of the term deck to a property
at 219 South Third Street. Staff believes this area underneath the existing deck is not an
additional deck.
BACKGROUND:
The property at 219 South Third
Street has been the subject of an
ongoing land use review for an
historic lot split and other
reviews. There has been
discussion about an at-grade area
on the south side of the existing
building and whether that area is
a ``deck" and should be counted
towards allowable Floor Area.
The interpretation request has
been submitted by Paul and
Angela Young, the owners of
413 West Hopkins Avenue,
represented by Attorney Jody
Edwards, and Suzanne Foster,
owner of 219 South Third Street,
represented by Attorney Bart
Johnson.
DISCUSSION AND INTERPRETATION:
The City exempts decks from the calculation of Floor Area up to a certain amount of total
deck space. Decks in excess of this amount are then attributed to a property's total Floor
Area. Below is an expert from the calculation section of the Land Use Code for Floor
Area.
Decks, balconies, porches, loggias and stairways. The calculation of the floor area
of a building or a portion thereof shall not include decks, balconies, exterior
stairways, gazebos and similar features, unless the area of these features is greater
than fifteen percent (15%) of the maximum allowable floor area of the building (the
excess of the fifteen percent [ 15%] shall be included). Porches and landscaped
terraces shall not be counted towards FAR.
The term '`deck" is defined in the Land Use Code as follows:
Deck. An outdoor, unheated area appended to a living space but not intended for
living.
Given this definition, nearly anything could be considered a "deck." In fact the area along
the sides of this building could potentially be considered ``decks." The definition of
"balcony" refers to the same definition -deck is synonymous with balcony. The
International Residential Code defines a deck as "an exterior floor system supported on at
least two opposing sides by an adjoining structure and/or posts, piers, or other independent
supports."
Staff does not believe that areas underneath decks must automatically be called decks.
This would require all decks to be counted twice -once for the actual deck and once for
the area under the deck. The deck definition does not limit or require the space to be
accessible or have any specific function.
If the second story deck were not a part of this building, staff would consider this area to
be a patio or a landscaped terrace, not a deck. There is no effect on the perceived size of
the structure and no meaningful reason the attribute this space to the allowable Floor Area
for the parcel. Staff considers the area underneath the second floor deck to be area
underneath the deck and not a second deck.
LIMITATIONS OF DECISION:
This interpretation relies on the City's Land Use Code and zoning regulations currently in
effect, which are subject to change. The interpretation is subject to being reversed or
altered by City Council upon appeal. This interpretation shall be valid until such time as
the Land Use Code or zoning regulations are amended. This interpretation does not create
a vested right. This interpretation will be maintained in the official record of all
interpretations as provided under Section 26.306.O10.E.
APPEAL OF DECISION:
Any person who has requested an interpretation may initiate an appeal by filing a notice of
appeal on a form prescribed by the Community Development Director. The notice of
appeal shall be filed with the Community Development Director within fourteen (14) days
of the date of the decision being appealed. Failure to file such notice of appeal within the
prescribed time shall constitute a waiver of any rights to appeal the decision.
EXHIBITS:
A -Edwards letter
B -Johnson letter
a^'t~e ~e~~~~ f~ SL~~~
i-IERBERT S. YLEIN
LANCE R. COTE, PC*
JOSEPH E. EDWARDS, III, LLC
COREY T. ZURBUCH
EBEN P. CLARK
MADHU B. KRISHNAMURTI
DAVID C. UHLIG
' also admitted in California
HAND DELIVERY
KLEIN, COTE &EDWARDS, LLC
bsk~:celaw.net
1rcLkcelaw.net
jee@kcelaw.net
ctz t7i l:celaw.net
epc rukcelaw.net
mbk~kcelaw.net
dcu cr kcelaw.net
Chris Bendon
City of Aspen
Community Development Department
130 S. Galena St., 3`d Floor
Aspen, CO 81611
ATTORNEYS AT LAW
~'~
TE. 203
FACSIMILE: (970) 92~-3977
vvwwkcelaw,net
August 5, 2009
4/fir
C~ ~~
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Re: Request for Interpretation Pursuant to Section 26.306.010, City Code;
219 South Third Street, Aspen, CO (the "Property")
Dear Chris:
On behalf of our clients, Angela and Paul Young, I request Code interpretations pursuant
to Section 26.306.010, City Code. As you are aware the Youngs are the owners of property
lalown as 413 West Hopkins, Aspen, CO which is across the alley from the Property. The
Owner of the Property has filed a development application with the City under Ordinance 48 for
Historic Landmark Designation and negotiation of certain benefits. One of those benefits relates
to the developable Floor Area for the Property. There are two separate interpretations we need
from you concerning Floor Area, the first relates to steep slopes and the second relates to a deck.
Steep Slopes.
The Property contains significant steep slopes. Based on the development application for
the Property, approximately 25% of the Property is steep slopes in excess of thirty percent.
Originally the applicant and staff agreed that the slopes needed to be deducted from the Lot Area
for purposes of calculating allowable Floor Area. On July 22, 2009, we received an email from
Amy Guthrie which indicated that staff had determined, contrary to prior representations to both
the Historic Preservation Commission and the City Council, that the steep slopes on the Property
would not be deducted from the Lot Area for purposes of calculating allowable Floor Area
because such steep slopes appeared to be man-made, not natural grade. That issue was discussed
with HPC that evening. This is contrary to the clear language of the Code Section
26.575.020.0., which states as follows (emphasis added):
Chris Bendon
City of Aspen
Community Development Department
August 5, 2009
Page 2
Lot area. Except in the R-15B Zone District, when calculating floor area ratio, lot
areas shall include only areas with a slope of less than twenty percent (20%). In
addition, half (.50) of lot areas with a slope of twenty to thii-ry percent (20-30%)
may be counted towards floor area ratio; areas with slopes of greater than thirty
percent (30%) shall be excluded. The total reduction in FAR attributable to slope
reduction for a given site shall not exceed twenty-five percent (25%).
There is nothing in the Code language above which provides an exception for man-made
grades. The steep slopes, if they are man-made, date back to 1887 when the railroad arrived in
Aspen. Consequently, assuming the steep slopes in question are man-made, they were in
existence many decades before the Land Use Code was adopted with the above language. The
drafters of the Code were aware of the slopes existing in the City when the Code was adopted.
While the Code does not provide a rationale for deducting steep slopes from Lot Area, it seems
likely that slope stability is the likely reason. And if slope stability is the justification for
exempting steep slopes from Lot Area then man-made slopes which are generally less stable
should provide more (not less) justification for reduction of Lot Area.
I understand the rationale for using historical grade for measuring height. And there may
be some justification for waiving the deduction from Lot Area for very small man-made
anomalies such as landscaping berms which will not be affected by or which will be entirely
removed by development. But that is not the case here. In this case there is a significant land
fornl which has existed for many decades and passes through numerous properties in the City. In
the event that the City snakes a determination that the steep slopes associated with the railroad
right of way are not to be deducted from Lot Area, I suspect many land owners will seek to
increase the floor area developed on their property.
The Code is plain and clear that slopes in excess of 30% are to be deducted from Lot
Area for purposes of calculating Floor Area. As the United States Supreme Court has held, the
fundamental rule of statutory interpretation is that if the law is clear as written, then no
interpretation is necessary. "[I]n interpreting a statute a court should always turn to one cardinal
canon before all others. We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says there." Connecticut
National Bank v. Germain, 503 U.S. 249, 253-254 (1992). Indeed, "[w]hen the words of a
statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete."' Id at
254. Since this Code section is clear and unambiguous, no interpretation is necessary and all
slopes in excess of 30% are excluded from Lot Area for purposes of calculation of Floor Area.
Chris Bendon
City of Aspen
Community Development Department
August 5, 2009
Page 3
Deck Area.
We also received an email from Amy Guthrie dated July 28, 2009, in which Amy states
that staff has reviewed the area underneath the wooden deck on the south side of the Property
and determined that it is not a "loggia.'' Consequently, staff concluded that such area below the
wooden deck is not subject to inclusion in the calculation of whether the deck area exceeds 1 ~%
and must be counted as Floor Area to the extent it exceeds 15% of the maximum allowable Floor
Area for the building pursuant to §26.575.020.A.2, City Code. This misses the point. That area
is a concrete, sunken area attached to (appended to) the structure and covered by the upstairs
deck. While maybe not a loggia, the area below the wooden deck is also a deck, as defined by
the Code. Section 2b.104.100 defines a deck as: "Deck. An outdoor, unheated area appended to
a living space but not intended for living." This exactly describes the space below the wooden
deck. As a deck this area below the wooden deck must be included in the deck area for purposes
of Section 26.575.020.A.2.
Consequently, we request your interpretation of (1) the above-quoted portion of Section
26.575.020.0., City Code, as it applies to properties with a significant portion of the lot
consisting of steep slopes and which steep slopes (whether man-made or natural) pre-date the
enactment of the Code, and (2) Section 26.575.020.A.2 as it relates to the area below the wooden
deck on the Property.
Enclosed is our Code Interpretation fee in the amount $50.00. if there is anything in
addition to this letter and fee that is required in order to pursue this interpretation or if you need
additional information from me, please contact me.
Sincerely, /'
KLE1N, COVE & EDWARDS, LLC
Edwards III
ec: Paul and Angela Young
youngUBendon interpretation requestdoc
-k I~kpwr~;-
ROBINSON NEFF+RAGONETTlP~
August 28, 2009
Chris Bendon, Director
Aspen Community Development Department
130 South Galena Street
Aspen, CO 81611
J BART JOHNSON
970 544 4638
BART~OTTENJOHNSON COM
Re: Request for Interpretation Submitted by Klein, Cote & Edwards, LLC on behalf of Angela and Faul
Young
Dear Chris:
This firm represents T. Foster and Company ("Foster"). By letter dated August 5, 2009, Klein, Cote &
Edwards, LLC submitted to your office a request for interpretation pursuant to Section 26.306.010 of the Aspen
Land Use Code (the "Request"). Foster owns the property implicated by the Request and therefore has standing
to oppose the Request. By this letter, l am requesting that Foster be recognized as a party to the Request and
that the interpretations of the Aspen Land Use Code advocated in the Request be rejected and denied.
Sloe Argument.
The arguments in the Request concerning the meaning and application of Section 26.575.020.0 should be
rejected. Your department has already considered this issue with respect to other land use applications and has
determined that man-made slopes should not be excluded from the Lot Area calculation for the purposes of
determining the permitted Floor Area for a Lot. This treatment of man-made slopes has been the policy of your
department for years. I am enclosing with this letter application and building permit materials for the project
located at 1215 East Hopkins Avenue, which is currently under construction. These materials cleazly
demonstrate your department's position in response to a prior request for interpretation on this precise issue. It
would be both unfair and improper to treat T. Foster and Company's property any differently.
Contrary to the contention in the Request, the language of Section 26.575.020.0 is not plain and clear. The term
"slope" is not defined in the Aspen Land Use Code. There is clearly a question about whether it is intended to
apply to natural slopes, man-made slopes, combinations of the two or all types of slopes.l This ambiguity has
' By way of comparison, consider the Aspen Land Use Code's treatment of "grade." It cleazly states in the provisions
governing building heights that they are to be measured from "natural or finished grade, whichever is lower." The
specification of both natwal and finished grade eliminates ambiguity. The slope language in the Lot Area provisions does
not include clarifying language of this type.
420 EAST MAIN STREET SUITE 210 ASPEN COLORADO 81611 P 970 544 4637 F 970 544 4632 W OTiEN10HNSON.COM
DENVER ASPEN STEAMBOAT SPRINGS
C
Chris Bendon, Director
August 28, 2009
Page 2
been recognized for some time and your department has been confronted with this issue before. As the person
charged by the City with administering the Aspen Land Use Code, you have well-established authority under
Colorado law to interpret the Code, and the interpretations you provide are to be given deference. Given that
you have already established a policy of interpreting the Lot Area exclusion language as not applying to man-
made slopes, we believe you are bound to remain consistent.
Deck Area Argument.
The deck area argument in the Request is not really a request for an interpretation at all. It is actually a question
about how the Aspen Land Use Code should be applied to given facts. Given that no final decision has been
reached on Foster's pending application, it is premature for the Youngs to be mounting challenges about how
the Code is being applied. But, in any event, the position advocated in the Request pushes the notion of a
"deck" to the extreme and is essentially an argument for the idea that every second story deck should be double
counted because it has outdoor space under it that is appended to a home but is not intended for living. For that
matter, under the broad definition of deck espoused by the Request, the entire yard of a home could be
considered a deck. In this regard, it is important to point out that under Section 26.575.020.A.2, landscaped
terraces are not treated as Floor Area for any purpose. The term "landscaped terrace" is not defined. But we
submit that the area in question, with the addition of some planters, could just as easily be considered a
landscaped terrace. By necessity, your department is required to make judgment calls about how definitions and
language are applied. We contend that it is clearly within your sound judgment to determine that the area in
question is not a deck for the purposes of Section 26.575.020.A.2.
Sincerely,
J. Bart Joh#~;
for the Firm
Enclosure
917165 I
cc: Suzanne Foster
Jody Edwards
r
KLEIN, COTE & EDWARDS, LLC
~~ l ~1
ATTORNEYS AT LAW
HERBERT S. KJ.EIN hsk n~ccelaw.net 201 NORTH MILL STREET, STE. 203
LANCE R. COTE, PC* lrc@kcelaw.net ASPEN, COLORADO 8 ] 611
JOSEPH E. EDWARDS, III, LLC jee@kcelaw.net TELEPHOIQE: (970) 925-3700
COREY T. ZURBUCH ctz@kcelaw.net FACSI?vIILE: (970) 925-3977
EBEN P. CLARK epc@kcelaw.net wwnv.kcelaw.net
MADHU B. KRISHNAMURTI mbk@kcelaw.oet
DAVID C. UHLIG dcu@kcelaw.net
also admitted in California
September 9, 2009
RECEIVED
Chris Bendon
City of Aspen ~k~ U ~ ~uQg
Community Development Department (:I I Y Ui- HSPEN
130 S. Galena St., 3`d Floor ~;OMMEINi~Y D~tOPR+~Et~'r
Aspen, CO 81611
Re: Notice of Appeal concerning Land Use Code Interpretations of "Lot Area"
and "Decks"; 219 South Third Street, Aspen, CO (the "Property")
Dear Chris:
This letter constitutes a Notice of Appeal pursuant to Section 26.316.030 of the Aspen
Municipal Code. This office represents Angela and Paul Young, the owners of property known
as 413 West Hopkins, Aspen, CO which is within 300 feet of the Property.
On August 30, 2009, Code interpretations concerning the definitions of Lot Area and
Decks (the "Interpretation" or "Interpretations") were issued in response to my letter of August
5, 2009. The purpose of this letter is to appeal those Interpretations to the City Council pursuant
to Code Chapter 26.316. The basis for the appeal is that the Interpretation were issued based on
an abuse of discretion.
A copy of my letter of August 5, 2009 is attached hereto and the arguments presented
therein are incorporated herein by this reference. Additionally, please consider the following.
Lot Area.
In the Interpretation concerning Lot Area, staff expresses concern that a property owner
could re-grade steep slopes in a "benched" or "terraced" fashion and thereby increase the
allowable floor area on the site. Re-grading is defined as development in the Code and therefore
requires a development permit (or exemption) under the Code. Any such permit could very
easily be granted wish a notation which requires an acknowledgement by the lot owner that the
granting of such grading permit will not create additional allowable floor area on the lot by virtue
of the elimination of steep slopes.
RECEIVED
Chris Bendon SEP U ~ 209
City of Aspen
Community Development Department CITY OF HSPEN
September 9, 2009 ~~~~ DftAEt4PMENT
Page 2
The Interpretation states: "Staff believes that by "slope," the drafters meant the natural
terrain prior to being affected by development." As stated in the August 5, 20091etter (and as
has been reiterated by both the Colorado Courts and the U.S. Supreme Court), there is no
"interpretation" to be made when the language as written is clear and unambiguous. There is
nothing ambiguous about the definition of Lot Area as written; it is only that "staff believes" the
drafters of the code meant something other than what was written. Nowhere in the definition of
Lot Area do the words "natural terrain prior to being affected by development" appear. This
phrase is something staff has added to the definition. Instead, the Code clearly states: "areas
with slopes of greater than thirty percent (30%) shall be excluded." This is a clear, declarative
statement which leaves no room for making a distinction based on natural or roan-made terrain.
If this language results in hardships, land owners can appeal to the Board of Adjustment or the
Council can amend the Code. But it is an abuse of discretion for staff to "interpret" the Code
different from the clear language of the Code.
Both staff and Mr. Bart Johnson (on behalf of the owner of the Property) assert that staff
has previously interpreted the term steep slopes to not include man-made slopes. While this
provides a course of conduct and demonstrates that staff is not showing the applicant for this
Property any favoritism, it does not justify the Interpretation. Two wrongs do not make a right.
The fact that there have been prior un-appealed staff determinations that man-made steep slopes
are to be excluded from the deductions from Lot Area does not justify further errors in the
application of clear language.
At the bottom of page three of the Interpretation, staff points out that other provisions of
the Code do not allow a property owner to artificially elevate the land to increase heights or to
add a vacated right of way to lot area in order to increase floor area; and the Code does not
penalize a land owner by reducing lot area for dedicated public trials. Each of these assertions is
correct. And, more importantly, each of these provisions is specifically and clearly provided in
the existing language of the Code. None of these provisions are based on an interpretation of the
Code by staff. For example, the Code specifically provides that height is to be measured "from
natural or finished grade (whichever is lower) at any point around the perimeter of the building."
The definition of Lot Area specifically excludes areas which are vacated rights of way and
specifically includes dedicated public trails. This is very different from the instant case where
there is clear and unambiguous language that states steep slopes are to be excluded from Lot
Area, and staff believes that this language should mean "natural terrain prior to being affected by
development." The drafters of the Code clearly had the ability (as demonstrated with regard to
the definition of height) to limit the slopes to be deducted from Lot Area to "natural'' slopes, not
man-made slopes. The fact the drafters of the Code provided that the measurement of height
should be made from the lower of natural or finished grade but did not limit the steep slope
deduction to naturally occurring steep slopes, in fact, indicates an intent that all steep slopes
(man-made or natural) should be excluded from Lot Area.
n
Chris Bendon
City of Aspen
Community Development Department
September 9, ?009
Page 3
Deck.
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In the Interpretation of Decks, staff ignores the word "appended" in the definition of a
deck. Staff asserts that under our interpretation of decks all decks would be double counted
because all areas under a deck (and even yards along the sides of buildings). In this case the area
below the wooden deck is a concrete deck which is "appended" to the house by a concrete slab
and by block walls. This is not to be counted because it is area beneath a wooden deck, but
because it is area "appended" to the house and is therefore a deck under the Code definition of a
deck. If it is not a deck, then it is a "loggia" as defined by the code, because it would be a porch
"attached" to a living space under a roof as an integral part of the building.
Enclosed are our (1) Land Use Application Form, (2) Agreement to Pay Fees and (3) the
fee in the amount $735.00. If there is anything additional required in order to pursue this Appeal
of these interpretations or if you need additional information from me, please contact me. It is
my understanding that the City will be responsible for publishing Notice of the Appeal hearing
date.
Sincerely,
KLEIN, COTS & EDWARDS, LLC
Edwards
cc: Paul and Angela Young
young\l Bendon appeal code interpetaiions.doc
G
Chapter 26.3Q6 ~ `~
INTERPRETATIONS OF TITLE
Sections:
26.3 06.010 Interpretation.
26.306.010 Interpretation.
A. Autlroriry. The Community Development Director shall have the authority to make all
interpretations of the text of this Title and the boundaries of the zone district map.
B. Initiation. An interpretation may be requested by any affected person, any resident or real property
owner in the City of Aspen, or any person having a contractual interest in real property in the City of
Aspen. The Community Development Director shall have the authority to initiate interpretations of
Title 26.
C. Procedures.
1. Submission of request for interpretation. Before an interpretation shall be provided by the
Community Development Director, a request for interpretation shall be submitted to the
Community Development Director.
2. Determination of completeness. Within fifteen (1 ~) days after a request for interpretation has
been received, the Community Development Director shall determine whether the request is
complete. If the Community Development Director determines the request is not complete, he
shall serve a written notice on the applicant specifying the deficiencies. The Community
Development Director shall take no further action on the request for interpretation until the
deficiencies are remedied.
3. Rendering of interpretation. After the request for interpretation has been determined
complete, the Community Development Director shall render an interpretation within fifteen
(15) days. The Community Development Director may consult with the City Attorney and
review this Title and the zone district map, whichever is applicable, before rendering an
interpretation.
D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail.
E. Official record. The Community Development Director shall maintain an official record of all
interpretations in the Community Development Department, which shall be available for public
inspection during normal business hours. Once an interpretation is rendered, public notice describing
the interpretation shall be published in the legal notice section of an official paper or a paper of general
circulation in the City of Aspen. Such notice shall be provided within fifteen (15) days of the
interpretation being rendered, and shall be substantially in the following form: "A code interpretation to
City of Aspen Land Use Code. August, 2007.
Part 300, Page 17
L~
Section 26.xx.xx of the City of Aspen Land Use Code , requested by xx, was rendered on xx/xx/xx and
is available for public inspection in the Community Development Department."
F. Appeal. Any person who has made a request for interpretation may appeal the interpretation of the
Community Development Director to the City Council in accordance with the appeal procedures set
forth at Chapter 26.316.
(Ord. No. 12-2007)
City of Aspen Land Use Code. August, 2007
Part 300, Page 18
~ ~
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: u~l~._ ~U;,~~• ~' `r
Aspen, CO
SCHEDULED PUBLIC HEARING DATE:
/Yo+t~~ 26~,5~ ovY~ , 200 9
STATE OF COLORADO }
ss.
County of Pitkin )
I, h ~Co~ (name, please print}
being or represen ing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E} of the Aspen Land Use Code in the following manner:
Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable, waterproof
materials, which was not less than twenty-two (22) inches wide and twenty-six
(26) inches high, and which was composed of letters not less than one inch in
height. Said notice was posted at least fifteen (15) days prior to the public hearing
and was continuously visible from the day of , 200_, to
and including the date and time of the public hearing. A photograph of the posted
notice (sign) is attached hereto.
Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by ti~rsl.,~lass 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 snore than sixty (60) days prior to the date of the public hearing. A
copy of the owners and governmental agencies so noticed is attached dzereto.
(continued on next page)
~ j
Mineral Estate Owner Notice. By the certified mailing of notice, return receipt
requested, to affected mineral estate owners by at least thirty (30) days prior to
the date scheduled for the initial public hearing on the application of
development. The names and addresses of mineral estate owners shall be those
on the current tax records of$itkin Co,'unty: At~aminimum, Subdivisions that
create more than one lot, Planned Unit Developments, Specially Planned Areas,
and COWAPs are subject to this notice requirement.
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.
Signature
The foregoing "Affidavit of Notice" was acknowledged before me this ~ day
of p~'.~-(' , 2005, by y`F-,~(.r~t ~C yJ'~.,~.~
4, 2009 • Aspen Times Weekly
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires: U~~ ~,O ~ a(} ( a
Notary Public
F
PUBLIC NOTICE
RE: APPEAL OF AN INTERPRETATION OF
DECK AND CALCULATION OF DECIK AREA.F A
B Y MAIL
ATTACHMENTS AS APPLICABLE:
HE PUBLICA TION
APH OF THE POSTED NOTICE (SIGN)
YE OWNERS AND GOVERNMENTAL AGENC~
LAURA
MEYER
APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE
AS REQUIRED BY C.R.S. §24-65.5-103.3
Published in the Aspen Times Weekly an October
4, 20D9, 14092233]
~ ~
Mineral Estate Owner Notice. By the certified mailing of notice, return receipt
requested, to affected mineral estate owners by at least thirty (30) days prior to
the date scheduled for the initial public hearing on the application of
development. The names and addresses of mineral estate owners shall be those
on the current tax records of Pitkin County. At a minimum, Subdivisions that
create more than one lot, Planned Unit Developments, Specially Planned Areas,
and COWAPs are subject to this notice requirement.
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.
S
Signature
The foregoing "Affidavit of Notice" was acknowledged before me this ~ day
of (~~~ , 200, by ~G, -e~ ~-. S c cN't--~-~1
i
WITNESS MY HAND AND OFFICIAL SEAL
My com fission expires: (~ f t 0 ~~ t ~
Notary Public
• t.f1U RI1
ATTACHMENTS AS APPLICABLE: ~°„ Zvi: MEYER
• COPY OF THE PUBLICA TION '~~~ CO~-~v
• PHOTOGRAPH OF THE POSTED NOTICE (SIGN) `~
• LIST OF THE OWNERSAND GOVERNMENTAL AGENCIES~~~1~'~CitP' 081012010
BY MAIL
• APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE
AS REQUIRED BY C.R.S. X24-65.5-103.3
Published in the Aspen limes wee~~r ~~• ---
4,2009.(4092223)
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: ~ `~`~ r ~~~
Aspen, CO
SCHEDULED ~UBLIC HEARING DATE:
h~riv~~cc.~- 0 L ~ (0 5 : 0 0 0 w~ , 200 c'1
STATE OF COLORADO )
ss.
County of Pitkin )
1, ~~~ ~ ~ G ~ -Q~ (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto.
Posting of notice: By posting of notice, which form was obtained from the ,,
Community Development Department, which was made of suitable, waterproof
materials, which was not less than twenty-two (22) inches wide and twenty-six
(26) inches high, and which was composed of letters not less than one inch in
height. Said notice was posted at least fifteen (15) days prior to the public hearing
and was continuously visible from the _ day of , 200_, to
and including the date and time of the public hearing. A photograph of the posted
notice (sign) is attached hereto.
Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (] 5) days prior to
the public hearing, notice was hand delivered or mailed by=ftfst 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)
\J
ATTACHMENT 2 -LAND USE APPLICATION
Name: '~o~ I~1'
Location: 21 ~ S • ~,•-a~ ~, /~~ ~-~-~ ~ 8 ~ (o !.1
ID # (REQUIRED) Z7 35- J 2 ~ - /cam-
~~
~Fi
~F
APPI.1('ANT:
Name: A ~,~. ( ~ /rQ'K ~ ~e, 1. b+,~K
Address: ~~ W. ~ S erg o gICJ~
Phone #1 ~ `~ 7 ~ ~ `~ 2 5~- ~ ZSCa
KF:PRESEN'I"A I IVL:
Name: ~ ~ . ~ ~ J~ rcQS ~ ~~ Q ~-. ~~e' ~ L-`Gf'~...1 a ~S 1-~-C_
Address: ~ j /J. ~ r r!~ # ~ e.- C~ 8 ll'o ~ (
Phone #: ~ 70, 5 Z~r- g'f Ud
TYPE OF APPI.ICA`I"ION: (please check all that apply):
^ GMQS Exemption ^ Conceptual PUD ^ Temporary Use
^ GMQS Allotment ^ Final PUD (& PUD Amendment) ^ Text/Map Amendment
^ Special Review ^ Subdivision ^ Conceptual SPA
^ ESA - 8040 Greenline, Stream ^ Subdivision Exemption (includes ^ Final SPA (& SPA
Margin, Hallam Lake Bluff, condominiumization) Amendment)
Mountain View Plane
^ Commercial Design Review ^ Lot Split ^ Small Lodge Conversion/
Expansion
^ Residential Design Variance ^ Lot Line Adjustment ~ Other: ~P/~~`~ ~ ~-a~e
^ Conditional Use ~~'t~r,~n~``~~v'~
of
Have you attached the following? FEES DUE: ~ 73 5 ~ u"
^ Pre-Application Conference Summary
^ Attachment #l, Signed Fee Agreement
^ Response to Attachment #3, Dimensional Requirements Form
^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards
^ i-D Model for large project
All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text
(Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an
electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model.
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
Agreement for Payment of City of Aspen Development Application Fees
CITY OF ASPEN (hereinafter CITY) and J"Qµr
(hereinafter APPLICANT) AGREE AS FOLLOWS:
THE PROJECT').
an application for
2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure
for Land Use applications and the payment of all processing fees is a condition precedent to a
determination of application completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed
project, it is not possible at this time to ascertain the full extent of the costs involved in processing the
application. APPLICANT' and CITY further agree that it is in the interest of the parties that APPLICANT
make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on
a monthly basis. APPLICANT agrees additional costs may accrue following their hearings 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 costs are incurred. CITY
agrees it will be benefited through the greater certainty of recovering its full costs to process
APPLICANT'S application.
4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete
processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning
Commission and!or City Council to enable the Historic Preservation Commission, Planning and Zoning
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 C1TY's waiver of its right to
collect null fees prior to a.~et~nination of ap c tio~n c"o"mpleteness, APPLICANT shall pay an initial
deposit in the amount of $ ~JS, -which is for -Twwc- hours of Community Development staff
time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly
billings to CITY to reimburse the Cl"fY for the processing of the application mentioned above, including
post approval review at a rate of $245.00 per planner hour over the initial deposit. Such periodic payments
shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such
accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued
until all costs associated with case processing have been paid.
CITY OF ASPEN
By:
s Bendo
Community Development Director
APPLIC T
" u~
y~ ~ ~
Billing Adidress and Telephone Number:
Z Of Oi`~ ~r ~(r ~? d3
r
KLEIN, COTE & EDWARDS, LLC
ATTORNEYS AT LAR'
HERBERT S. KLEBd hsl•!fa kcelaw.net 201 1^IORTH .'vtIl.L S77tEEi, STE. 203
COLORADO 81GI1
ASPEN
LANCG R. COT$, PC' !rc(dsl.'celaw.nei ,
TELEPr10NE: (970) 925-8700
JUSEPH E. EDWARDS, llT, LLC
ZURBUCy
COREY'C jee~}:celaw.net
ctztgkcelaw.net FACSIMILE: (970) 925-3977
.
EBEN P. CLARK epera~ykcelaw.ret www.kcelaw.net
R4ADHU B. KRISHNAMURTt mbk r^,lt kcelax•.net
llAVIllC.UHLIG dcu~akcalaw.net
• alw edmitted is Cxlifarsua
August 5, 2009
HAND DELIVERY
Chris Bendon
City of Aspen
Comlrnrnity Development Department
130 S. Galena St., 3`d Floor
Aspen, CO 81611
RE~~~~
E!~
S~tr' ; ~ y 2008
~i ~ r ~~.
,~MUN-TY p~L NEN
ANT
Ire: Request for Interpretation Pursuant to Section 26.306.010, City Code;
219 South Third Street, Aspen, CO (the "Property")
Dear Chris:
On behalf of our clients, Angela and Paul Young, I request Code interpretations pursuant
to Section 26.306.010, City Code. As you are aware the Youngs are the owners of property
known as 413 West Hopkins, Aspen, CO which is across the alley from the Property. The
Owner of the Property has filed a development application with the City under Ordinance 48 for
Historic Landmark Designation and negotiation of certain benefits. One of those benefits relates
to the developable Floor Area for fhe Property. There are two separate interpretations we need
fiom you concerning Floor Area, the first relates to steep slopes and the second relates to a deck.
Steep Slopes.
The Property contains significant steep slopes. Based on the development application for
the Property, approximately 25% of the Properly is steep slopes in excess of thirty percent.
Originally the applicant and staff agreed that the slopes needed to be deducted from the Lot Area
for parposes of calculating allowable Floor Area. On July 22, 2009, we received an email fivm
Amy Guthrie which indicated that staff had determined, contrary to prior representations to both
the Historic Preservation Commission and the City Council, that the steep slopes on the Property
would not be deducted from the Lot Area for purposes of calculating allowable Floot• Area
because such steep slopes appeared to be man-made, not natural grade. That issue was discussed
with HPC that evening. This is contrary to the clear language of the Code Section
26.575,020.0., which states as follows (emphasis added}:
SEC
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Chris I3endon ~ ~ y
City of tlspcn ?~ ~` ~ !' V ZU09
Community Development Department ~~~~N~~~ 'yS'/D~N
August 5, 2009 ~(~py~
Page 2 ~ "ANT
Loi area. Except in the R-15B Zone District, when calculating floor area ratio, lot
areas shall include only areas with a slope of less than twenty percent (20%). In
addition, half (.50) of lot areas with a slope of twenty to thirty percent (20-30%)
may be counted towards floor area ratio; areas with slopes of greater than thirty
percent (30%) shall be excluded. The total reduction ui FAR attributable to slope
reduction for a given site shall not exceed twenty-five percent (25%).
'T'here is nothing in the Code language above which provides an exception far man-made
grades. The steep slopes, if they are man-made, date back to 1887 when the railroad arrived in
Aspen. Consequently, assuming the steep slopes in question are man-made, they were in
existence many decades before the Land Ilse Code was adopted with the above language. The
drafters of the Code were aware of the slopes existing in the City when the Code was adopted.
While the Code does not provide a rationale for deducting steep slopes from Lot Area, it seems
likely that slope stability is the likely reason. And if slope stability is the justification for
exempting steep slopes from Lot Area then man-made slopes which are generally less stable
should provide more (not less) justification for reduction of Lot Area.
I understand the rationale for using historical grade for measuring height. And there may
be some justification for waiving the deduction fi•om Lot Area for very small man-made
anomalies such as landscaping berms which will not be affected by or which will be entirely
removed by development. But that is not the case here. In this case there is a significant land
form which has existed for many decades and passes through numerous prope~•ties in the City. In
the event that the City makes a determination that the steep slopes associated with the ~•ailroad
right of way are not to be deducted from Lot Area, I suspect many land owners will seek to
increase the floor area developed on their property.
The Code is plain and clear that slopes in excess of 30% are to be deducted from Lot
Area for purposes of calculating Floor Area. As the United States Supreme Court has held, the
fundamental rule of statutory interpretation is that if the law is clear as written, then no
interpretation is necessary. "[I]n interpreting a statute a court should always turn to one cardinal
canon before all others. We have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a statute what it says there." Connectict~l
Nutiorrul Barak u. Germain, 503 U.S. 249, 253-254 (1992). Indeed, "[w]hen the words of a
statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete."' Id at
254. Since this Code section is clear and unambiguous, no interpretation is necessary and all
slopes in excess of 30% are excluded from Lot Area for purposes of calculation of Floor Area.
Chris Bendon
City of Aspen
Community Development DeparEment
August 5, 2009
Page 3
Deck Area.
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We also received an email fiom Amy Guthrie dated July 28, 2009, in which Amy states
that staff has reviewed the area underneath the wooden deck on the south side of the Property
and determined that it is not a "loggia." Consequently, staff concluded that such area below the
wooden deck is not subject to inclusion in the calculation of whether the deck area exceeds 15%
and must be counted as Floor Area to the extent it exceeds 1 S% of the maximum allowable Floor
Area for the building pursuant to ~26.575.020.A.2, City Code. This misses the point. That area
is a concrete, sunken area attached to (appended to) the structw•e and covered by the upstairs
deck. Wlule maybe not a loggia, the area below the wooden deck is also a deck, as defined by
the Code. Section 26.104.100 defines a deck as: "Deck. An outdoor, unheated area appended to
a living space but not intended for living." This exactly describes the space below the wooden
deck. As a deck this area below the wooden deck must be included in the deck area for purposes
of Section 26.575.020.A.2.
Consequently, we request your interpretation of (1) the above-quoted portion of Section
26.575.020.0., City Codc, as it applies to properties with a significant pa•tion of the lot
consisting of steep slopes and which steep slopes (whether man-made or natural} pre-date the
enactment of the Code, and (2} Section 26.575.020.A.2 as it relates to the area below the wooden
deck on the Property.
Enclosed is our Code Interpretation fee in the amount $50.00. If there is anything in
addition to this letter and fee that is required in order to pursue this interpretation or if you need
additional information from me, please contact me.
Sincerely,
KLETN, CO~& EDWARDS, LLC
Edwards
ec: Paul and Angela Young
poungV Bendon uiterpretntion requesLdoc