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HomeMy WebLinkAboutcoa.lu.ca.219 S Third St.0049.2009THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBER PROJECTS ADDRESS PLANNER CASE DESCRIPTION REPRESENTATIVE DATE OF FINAL ACTION 0049.2009.ASLU 273512465005 219 S THIRD ST CHRIS BENDON CODE INTERPRETATION JOSEPH EDWARDS 11/1/09 CLOSED BY ANGELA SCOREY ON 1/8/10 ,,.,, ~.~ ~ ~aU~teQ lD 2735,12"4 rlo~-o05 odc~.a • 2.~9• f15LU ; Elk F,dit gecord pNvigate FQrm ReporSa Fermat I~ flea €a~ a ~ ~u~~1-a+~1 :~~~I -® c~~~ €OO -°-~'~~a~€_`~l® - x ~~ hr jj pp I ~ ~Y+le.rbn ICuikanFjekls IAw~ I~ IP.«Vs IF..stmnerY Isuba~ II~rwsutuc I~q 4 - Perrrvt Typo aslu ~ Aspen Land Use Ppmit F 0049.2009.ASLU Address 219 S THIRD ST ~ AptJSUite CRy ASPEN State CO ~ 2ip 81611 ~ ~I~ Permit Information::. __ _. _. Master Permit ~- J Routuig Queue aslu07 Applied 08705J2009 J Project ~ Status Pending Approved Desuiptim CODE INTERPRETATION PURSUANT TO SECTION 26.306,010 C[TY CODE Issued ~- REGARDING 413 WEST HOPKINS Final ~J Submitted ]OSEPH EDWARD5925-8700 Clock Running Daysr z Expires 07J31r2010 _.. ___ _ Owner _:_ _.. __ _ ___ - _. , 413 W HOPKINS J F'vst Neme PAUL Last Name VOUNG III ASPEN CO 81611 ' j~ Phone (970) 925-8250 i~ r Owner k Applicant? ~ j _' _. _ - - . i .. - _ . ~ _ Applicant -: Last Name I4_EIN, COTE & EDWAROS, l J ~ First Name 201 N ML SUITE 203 Phone (970) 925-6700 Cust Y 26875 J ASPEN CO 81611 tender _.. __ _ _. _ ___- __ ____._.. Last Name ~ J First Name Phone _.. ___.. ____ - _ -__. __I Permit lenders Fug address -- AspenGold[b) ' Record 1 d 1 I, ~ ~~. Q~ Z~~~ ~~i~ c,~ ~~~~\~°~ ,~., ~~ ..~ CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTION: City of Aspen 26.104.100 -Definitions (various) 26.710.050 - R-15 Zone District EFFECTIVE DATE: August 28, 2009 WRITTEN BY: Chris Bendon, Community Development Director APPROVED BY: Chris Bendon, Community Development Director SUMMARY: This Land Use Code interpretation clarifies the setback requirements for the property located at 219 South Third Street. The Front Yazd Setback is measured from the eastern property line along South Third Street. The Rear Yazd Setback is measured from the western property line. The Side Yard Setbacks aze measured from the northern property line along the alley and the southern property line along the Midland Trail. (Also see Exhibits A and B.) BACKGROUND: This property has been the subject of an ongoing land use review for an historic lot split and other reviews. There has been discussion about the location of a front yazd for a newly created lot, accessed only from the alley. The owner of the property has asked staff to clarify the current, prior to a lot split or any other land use action, setbacks believing that the front yard should be measured from 3`d Street. DISCUSSION AND INTERPRETATION: Front Yard is defined in the City of Aspen Land Use Code as "Yard, front. The yard extending the full width of a lot or pazcel, the depth of which is measured by the narrowest horizontal distance between the front lot line and the nearest surface of the principal building at grade. Front Lot Line is described in the Code as: "Lot line, front. The line normally closest to and/or dividing a lot from a street or street right-of--way. .-. --~ ~s ty And, Street is defined as: "Street. Away or thoroughfare, other than an alley, containing a public access easement and used or intended for vehicular, bicycle or pedestrian traffic. The term street shall include the entire area within aright-of--way. South Third Street is the only right-of--way boazding this property that qualifies as a "Street." This dictates the location of the Front Lot Line as the eastern lot line. The Front Yard is therefore measured from South Third Street. A property's rear lot line is defines as follows: "Lot line, rear. The lot line opposite the front lot line. A property's rear yazd is defines as follows: "Yard, rear. A yard extending the full width of a lot or parcel, the depth of which is measured at the narrowest horizontal distance between the rear lot line and the nearest surface of the principal building at grade. This means that the western property boundary is the rear lot line and the reaz yard is measured from the western property line. A property's side yard is defined as: "Yard, side. A yazd extending from the front yard to the rear yard of a lot or pazcel, the width of which is measured at the narrowest horizontal distance between the side lot line and the nearest surface of the principal building at grade. And, a side lot line is defined as: "Lot line, side. The lot lines other than front or rear lot lines. This means that the two remaining sides, the northern property line and the southern property line, aze the side yazds. This property is located in the R-15 Zone District. The Front Yazd, Rear Yazd, and Side Yazd setbacks aze as follows: "Minimum front yard setback: a. Residential dwellings: twenty-five (25) feet. b. Accessory buildings and all other buildings: thirty (30) feet. Minimum side yazd setback: ten (10) feet. Minimum rear yazd setback: a. Principal buildings: ten (10) feet b. Accessory buildings: five (5) feet." r~ ~... . ,~ LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code and zoning regulations currently in effect, which aze subject to change. This interpretation shall be valid until such time as the Land Use Code or zoning regulations affecting this lot aze amended. This interpretation does not create a vested right and the property shall be subject to future changes to the City's Land Use Code and zoning regulations. This interpretation will be maintained in the official record of all interpretations as provided under Section 26.306.O10E. 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 -Site Survey of 219 So. 3`d Street B -Diagram of 219 So. 3`d indicating locations of Front, Sides, and Rear lot lines. C -August 24, 2009, letter from Suzanne Foster, property owner. ,.~ y i E ~§r 4 9 `t u E -~ ~ e f " qq' F~ {Ff F. i C ~ f@ As F2 g a i i d 3 ig ;f ! E 6 e~ z~ ~ i£ ~ ~ ~ f . ,... z F~ ~ .,~ ~ 1 ; 9 t :~g o .c sf ~~ Ef i ~ ° eej 1 . ~ l f - ~. F-`-e f.Ee ~ i l .f a .c~ " ~~ ~ ~ _ e i E 6 F d,7 'Fe ~ i"m2t pr_ ~~~. 1 ~ ~ ~ ! 3Ee-fl r.. o i'SSii! ~3a f~°teF lO~-,26°P1 F's~Elrfg• i P~4S~?' fEC5a6 8EE f?f4tfl°-iEe~3? 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J ~ ,. yl l ~:T~,. ~, r.2; ~ ~-e, ~~~~~ _ ; ,. _ ~~_~~,~ v 9r ~ . _ ~~i~if - ~ ~/~~,, ~~ ~ ~ECEIVEp AUG ~ =~ 1009 Cr --ftrr~.~ '~ n.t~l ' ~' - _ - - ~ - ,- ~ _-J~' ~ ~,~~, - ,- ~' ~-- ~. ~, w CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTION: EFFECTIVE DATE: WRITTEN BY: City of Aspen 26.575.020.0-Lot Area August 28, 2009 Chris Bendon, Community Development Director APPROVED BY: ~ Chris Bendon, Community Development Director SUMMARY: This Land Use Code interpretation clazifies 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 azeas 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 \./ J 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 similaz 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 pazcel 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 ~-. .~, ~.. ..~. 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. 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 owner, an owner could be motivated to terrace their parcel to achieve a higher Floor Area. There 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 unnecessazy 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-of--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 ~.~ 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 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 C -Permit Information for 1215 East Hopkins Development D -Email from Larry Doble. Gl','~'~a ~009~ ASL~Z COTE & EDWARDS, ATTORNEYS AT LAW HERBERT 5. ICLEIN hsk(u)Jccelaw.net LANCER. COTE, PC* Irc a(~:celaw.net JOSEPH E.EDWARDS, III, LLC jeeQkcelaw.net COREY T. ZURBUCH ctz tJ:celaw.net EBEN P. CLARK epc t©k'celaw net MADHU B. KRISI-INAMURTI mbk [~1+kcelaw.net DAVIDG UFII.IG dcu r~i kcelaw.net ' also adminetl in CdiFomie August 5, 2009 HAND DELIVERY Chris Bendon City of Aspen Community Development Department 130 S. Galena St., 3`d Floor Aspen, CO 81611 ~~ STREET. STE. 203 ELEPHONE: (970) 925-3700 FACSIIvIILE'. (970) 92i-3977 www.kcelaw.net 4//~ y ~~ (~cljr ~ "'h°`frYr ~~' ~ J~ ~~'~ Cry ti~ ~'c~~ ,;~ Re: Request for Interpretation Pursuant to Section 26.306.010, City Code; 219 South Third Street, Aspen, CO (the "Property") Deaz Chris: On behalf of our clients, Angela and Paul Young, I request Code interpretations pursuant to Section 26306.010, 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 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 ¢reater 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 azea 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 azea 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, C & EDWARDS, LLC Edwards III cc: Paul and Angela Young youngV Bendon interpretation requestdoc ~ % ~~~~-~ ®~r~~a®t~n~s®~u ROBINSON NEFF+RAGGNETTI~ 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 & Edwazds, LLC on behalf of Angela and Paul Young Dear Chris: This firm represents T. Foster and Company ("Foster"). By letter dated August 5, 2009, Klein, Cote & Edwazds, 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. Slone Ar ug ment. The arguments in the Request concerning the meaning and application of Section 26.575.020.0 should be rejected. Yow 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 clearly 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 cleazly 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 1 By way of comparison, consider the Aspen Land Use Code's treatment of "grade." It clealy 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 O1TE N10H NSON.COM DENVER ASPEN STEAMBOAT SPRINGS .~ ~,.~ Chris Bendon, Director August 28, 2009 Page 2 ~~, .... been recognized for some time and your departrnent has been confronted with this issue before. As the person chazged 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 aze 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 Ar ug ment. 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. Tn 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 aze 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 Joht! for the Firm Enclosure 91]1651 cc: Suzanne Foster Jody Edwards ~~ \r J~ O Request for staff interpretation -Interpolated Site Contours F~~ 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 Lindt and Todd Grange, Ciry of Aspen Community Development Depamneat Planners, for apre-application conference at 10:00 am November 6, 2006. We discussed the new-constmction development project of asingle-family home at the property located at 1215 East Hopkins Avenue (I.ot 4, Promentory Subdivision). As a result of issues discussed at that meeting, we respectfully submit this request for staff interpretation regarding existing wntour grades a[ the subject property. The following is an excerpt from 26.I04.I00 - Calculations and Measuremetus - Crry ojAspen Land Uae Code: C. Lot Area. Except in the RI S-B zone district, when calculating floor area ratio, loe areas shall include only areas with a slope ojless than 20Ya In addition, halj(.50) oflot areas with a slope oj20-30% may be counted towards floor area ratio; areas with slopes ojgreater than 30'/ shall be excluded. The total reduction in FAR attributable to slope reduction jot a given site shall rwt exceed 25%. Also esclvded from total !ot area jot tlm purpose ojjloor area calculations in all zone districts is that area beneath the high water line ofa body of water and that area within a vacated rightof--way, or within an existing or proposed dedicoted right-of-way or surface easement. Lot area shall include any lands dedreoted to the City of Aspen or Pitkin County for the public tmtl system, any open irrigation ditch, or arty hinds subject to an above ground or below ground surface easemem such as utilities that do not coincide with road easements. When rnlculating densiry, lot area sha!! have the same ezclustons and inclusions as for calculatingJloor area ratio except jot esclusion ofareas ofgreater rhax 20%slope. Rationale for erantip¢ contour interpolation: The comer lot is small and actually nonconforming in Minimum Lot Width in R-6 Zoning. The contours have been scraped in an un-nahuel 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 aze very steep as they climb back up to meet the natural garde of the street along Midland Avenue. This creates an unnatural bowl effect in the lot which is made worse by the use of a steep and tall non-coafomung 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 rue for F.A.R calculations. This is causing what we determine m be an unfair reduction of FA.R based on arbitrary grade lines which do not reflect the actual gentle slopes that would Lave been present on this lot prior to the previous development. We feel that if we could have the grades interpolated ro 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 oa this street and the neighborhood in general. The architect has provided two existing site plans as reference for this azgumwt. 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 areas of hatching representing grades over 20'/0, but there is not nearly as much allowing us to increase, in a equitable way, the F.AR 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 azbihary grading of the previous development on this particulaz site, be granted Sincerely, ~/Iv6..~ John G. Martin ~~~ t; $ 20uo .-•. .. ~+PM~ ~ i +e HM95ILl Y! q ~, J a.a•w i®w saw ~71'~RW'w~'~uwt +q~g . ~aY ~w.e C G C t~ yg~ ; €} EF~i Q ~ ~ €~ ~~ a p gt i ~ ~ ~ ~~ ~ g _ ~Se 8 ~ ~ $ } d F~-i ~§' ~ € €.~~~~ ~ S € i sF {{ yyyy ¢ g f ~~Rt~gn X ~~ i 3 i E~N3AV ~ yA'0f SN~Mdol1 ySY3 r~--, ~_ __. ~1.. ~ I I ~~ 1 ~y I I I-, . 6E gjgg II i I I I (~~• ' ~ -tl-, ~ ~. I~ / ~ . i . i ~. I ~, ~ Y I {I ~ I . f~ I' n I' t ~ I' I ~ ~~ ~I~I . . ~ ' ' ,`ID I -~. _~_ -~. '1 " ~~_ C ~a a ~I R R tom.` ~.d -~__.. ~' 2 t e ~ C ppp8 a R ~ ' ~~ 0 ~yyg ~ ~ t ~C ~ 6 ~~~ § 4: Z9 6iiE z¢ v .4 >s~ r .~. ~ "~ >~( .®.r~~sal Z~ ~. mow. a~ggaQpueaealS d~ ~-! ~ ~ anew . ~~ •n~ -~~ .~,~ C C C C b k ~` h ~. Yp e§F ya^ A a r~ -''~---._T_ ,, r ~! . i ;~ ~~~~~ ,I i s ~. ' ~~ p~~ ~~~~~ i, . ~s~~@ ~Y s I ~.i ~§~~ y <g ~~~~~~~ 5 l ~ T e~ ~ f, I ~ I n I' f ~ I' 1 ° ~4 II I, 1 ~~ '~. '~. '~~ ~"~. s~~gj'~ ! ~.€~~, ~~ p S~ @ 3l°• iiii . a F d ~Pj+;i ~PSib $S~f~~~~~ ~t~ c t C $ ~ $ ~~ ~ e. ~~~ ~ i ~~ ~ Q § ~k ~ § ~~ <§ o~ z v9 a Hl1N3M1Y N1NdOH ASY3 ~~. r • -- ~ ~' ~ ~~ z ~ '' m< • J Q 0 zc <~ a G~ *e% j 5L7~WL d1 SOIa17HPB0UND _ s-~ ,.-. EAS "'°J T $pp~rNs 50• R.O.W. sr.._ AYBNUW ~_. .~. ATTACHMENT3 DIMENSIONAL REQUIREMENTS FORM Project: Applicant: Location; Zone District: Lot Sizc: Lot Area: within the high water mark, easements, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing:__ r7`4 _Proposed• .___ Number of residcnual units: Exlsting:.__1 _ _,_Proposrd: k _. Number of bedrooms: Existing:~.~_Proposed.•_ 5 ___ Proposed % of demolition (Historic properties only):~1 A DIMENSIONS: ['Ioor Area: Eristing: `- I io~Allnwahle: '~~at] !'roposed.• ' q°D ~~ ~ ~CrICUStft P% Principal bldg. height: Ezisting: _>A',~~d!lowable: r 25 - , -Proposed: ZSi_ Access. bldg. height: F,zlrring: ~1A _Alloti~uble: Proposed:. _ __ _ On-Site par4.ing: Existing: I ~!M 2 Requirerl.~ 2 ~ ~-v. S Proposed.•~t' :o Site co~~erage: ~tisting.• I ~;b Required: SD °~ Pr•oposed.• ?G °%u Open Space: Ezis7ing: ~C> > Required: ~iJ ~ Proposed: 7fJ .w Pront Setback: Existing: _ . - N.C • Reyuired:_ 10 ~ _ __ -Proposed: ~G l Rear Setback: L•x!sting: tJ.C Requlred: _(Gt• Propnsed• iD~ CambinedFlR: F,xirting: a;.t Required• ~'!>• Proposed: ~!%~ Side Setback: F~ris[ing: _ __M_t___Reyulred.• fF .' Prupored: (r . i Side Setback: Existing: }.i • C• C__Itequired: 5 ' -Proposed: i ~ - Combined Sides: Existing: N,•G Rrquirrd: i ~ i .7 ~ Prnposed.•~ ~ 7 •_ DistanceBctween L•xisring _ IJA. Requirrd:~ _Proposed:_ Buildings Gxistingnon-conformities or encroachments: -Tir ;~.! IS a!(tJ-(patTc~kMt~L, Fog L,'rCt'N ~ THs !Y-.Sr Ir, NCJ~~F•~a)T•o5:c•t.ei~ f~i;.E St""rt~.AlilS_ Variations requested: . `Jd.7;~ ~ ~. 12t, IvOV U S Zu06 r,~YT ~i~7Tt.;~2 ~F51GF1.1GE ~..~ ..r ~ ASPEN * PITION COMMUNITY DEVELOPMENT DEPARTMENT PERMIT APPLICATION - PITKIN COUNTY ^ CITY OF ASPEN ^ ~ ,0 South Galena 970 / 920-5526 970 / 920-5090 ~y~ 2M7 AIPB~ aspen, CO 81611 970 / 920-5532 Inspection Line 970 / 920-5448 Inspection Line PERMIT NO. eneral IiOant ro corn to numbered won . Permit JOB gODRE55 1. I Z.l ~ C lGl nJ S ~ ~ Cm g ~ ~ l I UB9eL DEBCIUPIK)N 2 (;~ • Sty. 2artolaTO2• Lt.~ : I L-0`7- _ DE 3. `~ s ~ Pl,unlS U-c~L24-6'~ _ (~ovEnIGE ~ (Z• t,.s~a'TOrI h'H- FD OWNERSAUINORCZEflAGENT MNLA~DRESS PRONE UCEN NO FN 4. MH CONTRACTOR MAAADDRESa z,~ ~ ~ofi`i ~ b©4 ,~ ~ (~I I ., q 5• S ~,ca~.-. ea~sr D~z~. ~nn~c+r~ t~ ~~ MS , RF ARCWTECTOR ENGINffROF RECORD MAIL AODREBS s. 1 a LRZ O~NONES'j~~ GtjQZ{L CENSE NO SN ~01~• G. rt{t~t nJ h~ Q. o. i3o X 4?o E~.-~ i I 7 wERGY CODE FEE usETAx cwsus coDE G.IS PEE Z • lid NEW O DITION ^ALTERATION ^REPAIR ^ l$2 5S oo • usE OreunnwG SINGLE FAMILY MUL71-FAMILY PLAN CNECx P $ ERMR FEE zDNwc FEE / • ^ COMME ESI ^ COMMERCVLL. ^ OTHER 71 ~1 .,~ { 'G (~ A ` TJ Q/~ V ~ ~ G O AWAl10N OF WORT( s. l 954 8~•~0 F%IBTWG SO. FOOTAGE 1o. l2 pp SOUAFiE FOOTAGE 3o lypa at COnmctiyi V!3 OccuPer~r Gloms ~~ T Is there food service in this building ^ vES Rio 11 ~ l sv~°p~ "° a s~ ~ La,e _ . u a O 12. Is LPG used? ^ vES CCa't!io !~ r7 I w/~~ r m 13. Parcel ID# call920-5160 2~ 3 I NO.OF BEgOC EXE:IINe OMS ADD Y Use / l Fe SP'vNers ReeelNm Ws ^No om- T_ AWn 9/slen PpuM} ^ YN o1b 14. Descri tion O Of No. n(Dreeng UNb OFFSTREET PARKING SPACES / GNentl Unceeree PRESUBNITT.LL APft1CARp1 ACCEPTED APWOT4D FOP 54WNCE 7-` e. --!M BT 9Y ~~ Q DATE DOTE -22 r' .. WTE 'I r0$I NOTICE SEPARATE PERMRS ARE REQUWED FOR ELECTRICAL, PLUMBING, NEATNG, VENRLATING OA AIR CONDITIONING. THIS PERMR BECOMES NULL AND VDID IF WORK OR CONSTRUCTION AUIFiOR® LS NOT C.OMMQJCED WITHIN 72 MONTHS. OR IX CONSTRUCITON OR WORK LS SUSPENDED OR ABANDONED FOR A PB210D OF 780 DAY3 ATANY TIME AFTER WORK IB COMMENCED. I HEREBY CERnFY THPT i NAVE READ AND E%AMINF~ THIS APPLICATION AND KNOW THE SAME TO BE TRUE MID CORRECT. ALL PRWSIONS OF LAWS AND ORDINANCES GOV- ERNINGTHIS TYPE OF WORK WILL BE COMPLIED WfTH WHETHER SPECIFlED HEREIN OR NOT. THE GRAN7WG OF A PERMR DDES NOT PRESUMETO GNE AUTHORIIYTO VIOUITE OR CANCEL THE PROVISIONS OF ANY OTHER STATE OR LOCAL LAW REGUTATNG CON- STRUCfpN OR THE PERFORMANCE OF CONSTRUCTION. R G MY RESPONSIBILffY TO • ENEW THE APPROVED PLANS AND ANY COMMENTS THAT ARE CONTAINED THEREON ND SEE THAT THE STRUCTURE ANDfJ,/OR~jRQIECT LS BULT IN COMPLUWCE WRN ALL KiW1R 'iUM 1YJA[ ZONWG t4P.C. PNeCDEDICA710N ENVIRO. HEALTI wGtNE~wNc RWKS NATURAL R60URCES FIRE MARBHAL WA11]i lAP ASPEN CON~L SAN. D16f. OTHER 4 TAW n d PAYMENT OP PITKIN COUNTY USE TAX MONTHLY OR QUARTERLY RETURNS WILL BE SUBMITTED. ^ DEPOSIT METHODS%OF 25%OF THE PERMRVALUATION PAID AT ISSUANCE. A FlNAL REPORT ON TOTAL ACRIAL COST MUST BE FLL.ED WITH IN 90 DAYS OF SllBSTANTW. COMPLETION OF WORK AND / OR ISSUANCE OF THE CERTIFICATE OF OCCUPANCY. ^ EXEMPT: EXEMPT ORGANVATiON ^ RESALE: STATE 8 PffKW COUNTRY RESALE N0. THE DEPOSR METHOD WXL REASSUMED UNLESS OTHEA~MSE NOTED. ANYONE WHO USES AND/OR CONSUMES RUXDWG MATERWS AND FIXTURES W PIRON COUNTY G SUBJECTTOTHE S% USE TAX PROPERTY LIENS MAY BE PLACED ON THE OWNER'S AND /OR THE CONTRACTOR'S PROPERTY WHEN USE TAX IS NOT PAID L THIS FORM IB A PERMR ONLY WHEN VALIDATED WORK STARTED WffHOUT PERMIT WILL BE DOUBLE FEE Energy Code Fee Plan Chock Fes Zoning Fse GIB Fee PoFmk Fee Use Tu Deposit Fee Otl7sr Fees 1t82•s'6 7686. Sy ' ~YYY-9o S~"°o t plq,giS,yo - OS7 6 ?':7TJ'~ wHn ~.r ZONING CHECKLIST Owner's Name 21 S l:,+sr NoPI~It~S L ~ c Contact Person_ ~^t~12. W art Z ¢=cJ Legal Zone PLANNING APPROVALS: ~. Date: _ Permit # Phone # HPC Conditional Use Design Review 8040 Greenline Stream Mazgin View Plane GMQS Special Review Bd of Adjust PUD TYPE OF WORK ew Construction RemodellAddition Demolition/Relocation Sin e-Family Duplex Accessory Structure Commercial Multi-Family - # of units Employee House - # of units LOT SIZE: ~p~ ~ 7 ° LOT AREA: ~~, SETBACKS Allowed rinci aUAcc Pro sed rinci aUAcc) Front > b Reaz b - O Combined Froat/Reaz / ' " Side ~it1. ~ ~ Combined Side ,~ Distance btw buildin s Comer Lot HEIGHT (PrincipaUAccessory): Allowed: ~> Proposed:- ~ FLOOR AREA: Allowed: .3.? Proposed:~~~~ Exempt Space (s.f.) ~ - - Gazage ~"~5~ ~U~ Subgnde / ~ ~ 7iDecks~Zl rJ~ 73S ~ 4 ~ Cs_Y.v. S o NET LEASEABLE SF Existing: Proposed: -' OPEN SPACE % Required: Proposed: - BEDROOMS Existing: Proposed: S SITE COVERAGE Allowed: 9' Proposed: g~_ ON-SITE PARKING Required: 7i Proposed:'- 2 FEES: School: Zi ~~azk Dedication: ~ ~ Cash-in-lieu:_ q~~~9 S~ ~C~ 1 Planning ees paid: "['gym !! `~~-na {~,h~, i ~~ o cs /) 2w 7. /k,2a~Z - ~ - ~ 3 a y .~ ~~ ~~ R/ CQlh.~t (~- RESIDENTIAL DESIGN STANDARDS SITE DESIGN Building Orientation: ~ ~ Build-to-Lines: Fence: /,~' PARHING, GARAGES & ARPORTS Access (i.e. alley): // /~' Gazage width: Gazage location: ~ D Driveway cut: ~_ Entrance width: h (• D Single stall doors? CONTEXT Materials: _ Inflection: ~dSDITIONALNQ/ ~5~3 - b~~ ,~_~ d~.~~A-12. ~ ~uv~~ - ~'N cv~1n e c~ Go2.~~ BUII.DING FORM Secondary Mass: /r~/-~' BUII.DING ELE11 V/indows: Door: Porch: Principal window: One story element: Lightwells: n!C L-, aK U,f }~ ~ ti':: 4 ~1~a.a~~-Q x,11 a r;s wti "~~ ``~ s~.~ cep` ~/~ P 5- ~~~e.- W r }~/ ~.oW ~t~'3l ~~ t~vr.-c~.t ~ F~'' ~~n-~ m,~~,.U -~ tt ~~ ¢~as- 30~ t•BL. ~e,88 X28_ 3d~-,L~ r t2~-o0... ---_- IN l yv~u~1 ~QQ - 3. ~,~*-,~. ~ ~/ s~,0`j' ~o Ne c 1 ~ ~' Gx (G...~~J~t -Z~¢ C2c~sf „~,,, ,,,,~ Page 1 of 1 ~..> ./ Chris Bendon ~~~~ From: Larry Doble Sent: Thursday, August 27, 2009 7:57 AM To: Chris Bendon Subject: RE: 219 So. 3rd Street Good morning, 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, AICP Community Development Director City of Aspen ~ 970.429.2765 www.aspen gitki n. coml an>znnn4 ~^, .-. ~~ CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTION: 26.104.100 -Deck EFFECTIVE DATE: August 28, 2009 WRITTEN BY: 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 azea 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, neazly 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 azeas 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 aze 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 KLEIN, COTE & EDWARDS, LLC ATTORNEYS AT LAW HERBERT S. KLEW hsk@J:celaw.net LANCE R. COTE, PC' Irc@kcelaw.net JOSEPH E.EDWARDS, III, LLC jee@kcelaw.net COREY T. ZURBUCH ctz@kcelaw.net EBEN P. CLARK epc@k'celaw.net MADHU B. ICRISHNAMIJRTI mbk@kcelaw.net DAVID C. UHI.IG dcu@kcelaw.net ' also admiuW in California August 5, 2009 HAND DELIVERY Chris Bendon City of Aspen Community Development Depaztment 130 S. Galena St., 3`d Floor Aspen, CO 81611 r,C't~. ~2009~ Fl SL~ti ~ ~/ MILL STREET, STE. 203 TELEPHONE' FACSIIdILE: 4!/r y ti~ Chi r /~ 9~ O'~yr~ r ~ C ' Rh vN 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 2'2, 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 appeazed to be man-made, not natural grade. That issue was discussed with HPC that evening. This is contrary to the cleaz language of the Code Section 26.575.020.0., which states as follows (emphasis added): r~~ .-,. ~,~ W Chris Bendon City of Aspen Community Development Department August 5, 2009 Page 2 Lot azea. Except in the R-ISB 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; azeas 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 aze man-made, date back to 1887 when the railroad amved 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 awaze 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 cleaz 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%aze excluded from Lot Area for purposes of calculation of Floor Area. ,~, ..s 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 I S% 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 azea 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, C & EDWARDS, LLC Edwards III cc: Paul and Angela Young young\I Bendon interpretation requestdoc „~ "~~~~~ ®~~ENJ®HIV~®~V ROBINSON NEFF+RAGONETTI~ August 28, 2009 J BART JOHNSON 970 644 4638 BART~OTTENJONNSON COM Chris Bendon, Director Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 Re: Request for Interpretation Submitted by Klein, Cote & Edwards, LLC on behalf of Angela and Paul 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 Ar ment. 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 yeazs. 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 clearly 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 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 measured 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 STREET SUITE 210 ASPEN COLORADO 61611 P 970 644 4637 F 970 644 4632 W OTTENJOHNSON.COM DENVER 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 Ar ug ment. 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 aze 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 aze 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 91'!165 I cc: Suzanne Foster Jody Edwards AF'FFDA~/7T OF' PUBLIC 1Q'OTFCE F~~LJJIIRED B`a' SECTI®N 26.304.07©, ASPEN LANE) ~JSI/ CQDE AD13R~SS ~~ P~~P~>zT~: xlll~ ~r 2~~ S. Aspect, c® sTAT~ ~~ c~x.~FaAFr®. } ~s. County of Patkin ) I ~{ ~GCJf~J (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) or Section 2,6.3/06.010 (E) of the Aspen Land Use Code in the following manner: I/ 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 no later than fourteen (14) days after final approval of a site specific development plan. A copy of tlxe publication is attached hereto. 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 no later than fifteen (15) days after an Interpretation has been rendered. A copy of the publicatiorx is attacled hereto. ,~- / Signature The foregoing "Affidavit of Notice" was acknowledged before me this ~ day of Sirx , 200° by ~or~ `mot- Gof~N WITNESS MY HAND AND OFFICIAL SEAL My commission expires: I =' .. qE: INTEgPRETpTIpry pp THE LAND USE CODE .DEFINITION OF A PECK pND CILLCUlAT10N OF DECK AgEA. NOTICE IS HEREBY GIVEN that ecode interpretation reggaNing the meaning of the tleflnetl term, Deck, antl calculatiornmpof tlecks antl apace subm ttetl by Peul antl Angela YoulnB rt Q¢ ownears of 413 West Nappkins Avenue, reprasentetl by Attorney Jody Etlwartls, antl Suzanne Foster, owner of 219 South IDirtl Street, reprasentetl by Attorney earl Johnson. The interpretation antl is available for public inspection in the Community Development Oepatlmant. For further information Cpntect Chns Hentlon at the City of Aspen Commu Nty Developpment Department, 130 S Galena Sq Aspen, CO, (9]0) 920.5098. Pub9shetl in the Aspen Times Weekly on Beptem- ber6,2009. ~39)22]4j Notary Public ATTACHMENTS: COPY OF THE P UBLICATION CORY J. GARSKE ~y Cemmissan E'Iµres g6ipillplt AF'FIDA~IT €}?+ ~'UBI,IC I@TOT)!CE Id~f~ULP~I) BT1' Sl/CTI®N 26.364.07©, ASPEN LAN- ~TSE C(~f31 AEbIII~SS CF PJ~f~PE12T'~': Aspen, CO STATE Q~F CCLaRAII~® ) } ss. Coannty of Patlcnn ) I ~G(T( (name, please print) being or represen ing an Applicant to ze City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26304.060 (E) or Section ,26.3/06.010 (E) of the Aspen Lazid Use Code in the following mariner: 1/ Publicatioxx 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 no later than fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached )xer•eto. 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 no later thazl fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. Signature The foregoing "Affidavit of Notice" was acknowledged before me this ~ day of SE'~Of , 200, by ~~~.. `~O~/~n WITNESS MY HAND AND OFFICIAL SEAL / u n E BE: INTEBV TATION OF THE LAND USE SETBACKS FOB 21950UTN TNI DSTBEEfHD NOTICE IS HEREBY GIVENthat a cotle interpretation regertling Me setbacks for a property locatetl at 219 South Thirtl Street. The interpretation request was aubmitled by Suzanne Foster, owner of 219 30gth Thirtl Sheet. nspection oalihe Community Deve~opmeint Depadment. For further information contact Chris Bentlon at the City of Aspen Community Development Department, 130 S Galena St Aspen, p0. 19]0)920.5090. Published in the Aspen Times Weekty on Septem- ber6,2909. [3W2359r My corrinission expires: Notary Public ATTACHDZENTS: COPY OF THE P UBLICATION CORY J. GARSKE 5~ ~~J\ ~1y Commleskn Eapiree o6K~2012 AF'F)I-AFJIT OF' PUBLIC NOTECE It~f~>iJII~17 B~' SECTI.ON 26.364.070, ASPI/Pd LAND ~TS1J CO1~E Af3IIR~SS QF Pl€(~PERTi': Asgren, CO STATE O7r COLORAII~O } ) ss. Commnty of P%tlrsn ) I, J Cdy '~`~ (name, please print) being or repre eating an Applicazlt to the Ctty of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) or Section 26.306.010 (E) of the Aspen Land Use Code in the following mamier: 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 no later than fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. 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 no later thazi fifteen (15) days after an Interpretation has been rendered. A copy of the publicatio~z is attached he~~eto. J~ ~ 5~~~ Signature The foregoing "Affidavit of Notice" was acknowledged before me this ~ day of ~r , 200, by .Pa~- ~cc1J~ p / I N TIC RE: INTENP ATION OF THE LAND USE CODE - LALCU ATION OF LOT ANEA AND MAN-MADE TOPOGRAPHY. NOTICE IS HEREBY GIVEN that acode 'nterpretatlon rel)wtling the calculation of Lot Area, Section 26.5]5 020.C of the City of Aspen Lantl Use Cotle in stances where the natural pre- tlevelopmenf terrain has been motlifietl. The interpretation regqhhuest was submittetl by Paul antl gvenue,y epresenletl by Attornely tly tEtlwaktls, Street,, reprasemetl by Attorney Berl Jo~nuson TM1irtl The Interpretation antl Is available for public Inspection In the Community Development Depeemant For futtharppintormation wntact Chripis eentlon at the City ~ 30 3 Ga1C ne 3t"A pen BCO, meat Oepartmenl, (9]0)92p.5090. Publishetl in the Aspen limes Weekly on Septem- ber 6, 2009 ~39]2313~ WITNESS MY HAND AND OFFICIAL SEAL My commission expires: ~` I Notary Public ATTACHMENTS: COPY OF THE P UBLICATION CORY J. GARSKE My Cemimeawn Exp~rrn ~Oi1~012 COMPLETE THIS SECTION ON DELIVERY ~ complete items t, z, and -s. wso wmplete w ~~g am Rem 4 if Restricted Delivery is desired. 4 Agent X ~~ ^ Print your name and address on the reverse / ^ Addressee so that we can return the card to you. R eiv by (Pri d Nance) C. ate of Delive ^ Attach this card to the back of the mailpiece, or on the front if space permits. 1 Article Addressed to: D. IS delivery ad differem horn item l? ^Yes . ~ If YES, enter delivery address below: ^ No ZD~ aim ~ A~ _\ ~`'~n C~ '~ E h 'So~. v..so r~ r 6iJJZ \ i q ~ ~ S`t ' ~ E ~ . . n A • l{2v 11 p s`S b ~M Oa typo ,~"~e " ^ Aspf/1n, ~ ~ ~~O l ~ ~ S ai' `J~ a ~ i' ~ M ~ ^ ^ R I Ia d 1ol archandise ^ Insured Mail ^ C.O.. 4. Restrktetl Delivery'!(Extra Fee) p yes 2. Artlcle Number (Iiansferfrom seMce la 91 7128 2133 3936 9382 9984 PS Form $811, February 2004 Domestic Return Recelpt tozsesoz-M-tsao ; ~ • ~ ~ . • . ^ Complete Rems 1, 2, and 3. Also complete A S4 ture 'kem 4 if Restricted Delivery is desired. ^ Agent ^ Print your name and address on the reverse ^ Addressee so that we ran return [he card to you. ed by ( doted Name) C. Date of Delivery ^ Attach this card to the back of the mailpiece, q or on the front if space permits. t . Artkle Addressed to: ~ D. Is del differem from Item 17 ^ Yes If YES, elNery address below: ^ No ^ ~ T4ti~ ` ~~ ~ .. ea.o N ro~ y `~ ~ O 4~3 w. N~PKnS { ~,1 `O a'ro (~ 3. Service lype ~' Certlfled Mail ^ Express Mell ^ Registered ^ Return Recelpt for Merchandbe ^ Insured Mall ^ C.O.D. 4. ResMcted Delivery/! (Extra Fee) p yes 2. Article Number 91 718 . (fiamsler hum servke label) 2133 3934 3813 5004 PS Form $811, February 2004 Domestic Return Receipt to2ssso2-N-tsao ; s • • • • • . ^ Complete items 1, 2, and 3. Also complete A ~ ~ re kem 4 if Restricted Delivery Is desired. ^ Agent ^ Print your name and address on the reverse ^ Addressee so that we can return the card to you. ed by n~Qrf tad Name) C. Dot o Delivery ^ Attach this card to the back of the mailpiece, ~~~~, ~ 6 or on the front if space permits. 1. Article Adtlresse d to : D. Is del address different horn ffem t? Yes N o If VES, nter delivery address bebw: c t ~~t~tn -F ~dt 'l C - ~ t o ~ i , n 2 0 l N ~~ S~' '~`'~ 3 T''pe ~ . iged Mail ^ E~resa Mail Oa t~ ~p $ (b ~ 1 ^ ~ O Registered ^ Return Recelpt for MetChantllea ^ Insured Mail ^ C.O.D. ~ a. Restrc[ed DelNery7 (Exaa Fee) ^ Yea 2.. Artlcle Number M (ransfe.frvnaerrrcalaee~ 91 7108 2133 3936 9382 9991 "1~ PS Forth 3811, February 2004 Danesdc Rewm Receipt tr>zsswzat•trao I ^ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. ^ Print your name and address on the reverse so that we can return the card to you. ^ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: '~, ~~~ , ~A I x'067 A Sign3rtu~ Xrr ~ ^ Agent D. Is delivery address difrerem from Rem 17 ^ Yes If YES, enter delivery address below: ^ No SeMCe Type Certified Mall ^ F~ress Mall Registered ^ Retum Receipt for Merchandise ^ Insured Mall ^ C.O.D. 4. ResMCted Dellver7/1 (Extra Fee) ^ Yes ?. ANde Number (riansferhomsemcefebel)- 91 7108' _133 3936 9382 9571 I PS Form 3811, February 2004 Domestk Return Receipt ^ Complete items 1, 2, and 3. Also complete kem 4 if ResMcted Delivery is desired. ^ Print your name and address on the reverse so that we can retum the card to you. l ^ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: I ?~~ ~ Cm s~c~ii tozeasoz-Maud A S n J ^ Agent ~`~ ~ ^ Addressee B.~te~elvedhy (ltfrt~/fer~gL C to of Delivery e J.A11111Y11:~i1U D. Is delNery address dHferent fiom aem 17 Yes M YES, enter delivery address below: ^ No 3 Type Mail ^ E~resa Mail ^ Registered ~ Retum Receipt for Merchandise ^ Insured Mail ^ C.O.D. 4. Restdcted DelNety't (Extra Fee) ^ yea 2.. Artlda Number II (lrens/ertromservlcelabel) 91 7100 2133 3936 9383 ~003~ ~PS Form 3811, February 2004 Domesgc Retum Receipt ldzsesce-M-tsao f "r} i ~~~ ~ ~°~°y ~~ ,~ ~- • E-- d ~~~~ ~ ~ r~"v ~~3 ~l~f~ ~n~ ~ c~ 6~~~ ~ ~~h~ ~kr ~~ ~,,.-a,,,...,1r 3,SZ o`~ ~~ D ~~~ ~~~ 20l ~•..f/li</ J^~ # X03 ~~. 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't} . ~~ _. o_ N C ~ ~ G O ~ (O fA C C ~ ~ LLO (n O ~ ~ C U C l9 C (0 w~ O. m 0 ~ Q O N V .° !W I -. ~~„i C _i~ ~~ p 'U =~,; ,~a r- 4 i, ~,; ~ i) a " 4 W ~ !1 .i 6 ~~ (~i g~.~~'1{1p1~VC #~~,~ r~~ CEO "~ ts'~fi ~,~~ .r ~ ~- s :a a a O -- ~ ~ ~~ u7 ~i m ~~ a m ~~ m 1 m m m ~~ m ru O ~~~ M1 ~~ ~ ~- d N '~I V ~am N o c3 ~ ~~U C] V) c .~ ~ 7 E E 0 U rn C N ~ ~ _ } Y (p a~ m o ~ a~ = o mNU c Q~ c ~ ~ - M ~- 3 ~ ~ (Q ~ Q a ~~ ,~.. c~av ; ,~ ~," ~~ &, ~n' ti r. ^R~, r!' d. ~ ,r. ~., %~ ,~, ,: ~s ~~~~~ ~. ;~:.ji,P ~..l.;a: ~4: r~°. `~ ~:~. ~t~. o- u- ~ °' ~ ~ ~~ m ~~ m ~~ o- .n m n- m m m a fL ~~ ~` rl o- m r ~~ ~ O ~ ~ a m ~~C3 N c ~^ T C~ G Q V I N M ~ N r N3~~ v~ ~m mw a~w ~otS~ o w a~_ V .. -_ 'a U ~ o o a ~ cZQ '~ Y ~ N S m m~~~p,,, m /I1 p W i `YO// W J a ~(Aa ~ N 6,~ ~ ~ ~ LL N ~ V W S ~f ~31Mh No °o ~ ~, i 7 _ _Y. ,~' ``C~ r~f~3Y~: F Ij~~ ~~, ~~ M1 ul Q' ti ~ m ~~ o- m n- m m ~~ m ti m 0 ~~ ~ a v- m ~~ ~yw ~ o ~~ m ~ o ~ U fn ~ ~" M n G ~ N ~ Q O U ~~. M:: y ~ ~ ~ ~~PL ~ 'l N VJ S ~~ o°~ oN ~~ W EEF,~a ~ =°W° GF, N tiP ~ g a~ ¢ `~ ~ ~ N Ny ~ ~ W Yas ~ O J ~3irtan o o ~ .' ~~ -~ ~, ~- N ~~ m _~ - .~ m o- m m ~~~ m a N O a ~~ ~ E r ~d~ ~ N Q . o ~~ ~ o ~ ~ U U) ~ o c ~~ a ~~ .~ ~~~~ 9 c~ ~ ~' ~ w C ''^^+ V+ V? N $S}' 3 + K'~ ~ ~ ~ + p r- ~ O ._ r M ~ ~ ~_ +~ N ~ ~- 49 •W~ ~ o, .~ N iz z z c~ VV DT ~ r w Ns •tn a ~c m io A N N O 49 4~,4? ,b = ~V O b ` ` ~ F y o° .:~ \ /ART ~i~ OV N 0 o° 0 c r ~Q. v r ~ O 4 h ~~ V G~ OC N r , ~ cv • 7I T` SCUT S~~ ~ Tyr ~D r~5,3g, S TR 8 T R.o w ~ 8 w ®:, e m •o T ~ 1 \ `. h ~ o Rt o ~ i ~ ~ f i ~ `` b c i• ` ` /,• (/00 ~N ~s THE CITY OF ASPEN Land Use Application Determination of Completeness Date: August 21, 2009 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this interpretation is 0049.2009.ASLU. ^ Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. ~~Your Land Use Application is complete: //// ~~~_If there are not missing items listed above, to begin the land use review process. then your application has been deemed complete Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. Tha Jc You, ennifer Phel eputy Director City of Aspen, ommunity Development Department C:\Documents and Settings\jennifep\My Documents\planning\Templates\Templates\Land Use Cases\Completeness Letter Land Use.doc