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HomeMy WebLinkAboutcoa.lu.ca.219 S Third St.0049.2009m 2-19 S THIRD ST 0049.2009.ASLU _ BODE INTERPRETATION 273512465005 SC°ANAlEJ-� /N M in THE 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 0 &*aj tU 2-735-12 - 4 "lay -005 5f �':jr11IJS.� IR oo4c(- 20(n9 - AS L U File Fdit Record Navigate Form Reports Format Tab Help J ►X► ►J �E '_l�� �1 -�E i, I i Jump 1 0 1 G Main Haluatiorr I Custom Fields Actions Fee£ Parcels Fee Summary Sub permits � Attachments I Rotting Status l Routing I ► Permit Type aslu J Aspen Land Use Permit * 10049.2009.ASLU Address J219 5 THIRD 5T Aptf Suite City ,ASPEN State KO y zip 81611 J Permit Information Master Permit J Routing Queue 'aslu07 Applied 10810512009 1 Project F—Status pending Approved Description CODE INTERPRETATION PURSUANT TO SECTION 26,306.010 CITY CODE Issued REGARDING 413 WEST HOPKINS Final �— J Submitted JOSEPH EDWARDS 925-8700 Clock Running Days 2 Expires 07/31j2010 Owner Last Name YOUNG III First Name PAUL 413 W HOPKINS Phone (970)925-8250 ASPEN CO 81611 Owner Is Ap*ant? Applicant Last Name JKLEIN, COTE & EDWARDS, t Fast Name 201 N ML SUITE 203 Phone (970) 925-8700 Cust 2CO875 ASPEN C81611 Lender Last Name J First Name Phone Permit lenders full address c,� AspenGo4b) Record: 1 of 1 i CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTION: EFFECTIVE DATE: City of Aspen 26.104.100 — Definitions (various) 26.710.050 — R-15 Zone District August 28, 2009 WRITTEN BY: Chris Bendon, Community Development Director T 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 Yard Setback is measured from the eastern property line along South Third Street. The Rear Yard Setback is measured from the western property line. The Side Yard Setbacks are 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 yard 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 P 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 parcel, 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. And, Street is defined as: "Street. A way 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 a right-of-way. South Third Street is the only right-of-way boarding 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 yard 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 rear yard is measured from the western property line. A property's side yard is defined as: "Yard, side. A yard extending from the front yard to the rear yard of a lot or parcel, 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, are the side yards. This property is located in the R-15 Zone District. The Front Yard, Rear Yard, and Side Yard setbacks are 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 yard setback: ten (10) feet. Minimum rear yard setback: a. Principal buildings: ten (10) feet b. Accessory buildings: five (5) feet." LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code and zoning regulations currently in effect, which are subject to change. This interpretation shall be valid until such time as the Land Use Code or zoning regulations affecting this lot are 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 26.306.010E. 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. 3rd Street B — Diagram of 219 So. 3Td indicating locations of Front, Sides, and Rear lot lines. C — August 24, 2009, letter from Suzanne Foster, property owner. SM Pot 15. a-l ' a .1.1 c e4l l%V v v r ry I I I • Iz 0 �U7Q�,f_0 �; r RECEWED AUG Ci J t . KOHEN 1Y D n 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.C- Lot Area August 28, 2009 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. 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 E 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 0 • 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 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 -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 26.306.010.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. r,C �� 2GG,9, A SLbt KLEIN, COTE & EDWARDS, rLC .� ATTORNEYS AT LAW HERBERT S. KLEIN hsk@krelaw.net LANCE R. COT$, PC' lrc@kcelaw.net JOSEPH E. EDWARDS, III, LLC jee@kcelaw.net COREY T. ZURBUCH ctz@kcelaw.net EBEN P. CLARK epc@kcelaw.net MADHU B. KRISHNAMURTI mbk@kcelaw.net DAVID C. UHLIG dcu@kcelaw.net r also admitted in California August 5, 2009 HAND DELIVERY Chris Bendon City of Aspen Community Development Department 130 S. Galena St., 3fa Floor Aspen, CO 81611 .TH MILL STREET, STE. 203 TELEPHONE: (970) 925-3700 FACSMIL.E: (970) 925-3977 www.keelaw.net 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 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.C., 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-1513 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.C., 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\1Bendon interpretation request.doc 0TTENJ07U_1 S 0 H ROBINSON NEFF+RAGONETTIP-- August 28, 2009 J BART JOHNSON 970 544 4638 BART@OTTENJOHNSON 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. Slope 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 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.' This ambiguity has ' 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 970 544 4637 F 970 544 4632 W OTTENIOHNSON.COM DENVER ASPEN STEAMBOAT SPRINGS 0 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 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. for the Firm Enclosure 917165 1 cc: Suzanne Foster Jody Edwards John Ah -- L C Box 4701 Phone. M32W92 'CO21631 %W "tL172_Ag92 Request for staff interpretation - Interpolated Site Contours 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, City of Aspen Community Development Department Planners, for a pre -application conference at 10:00 am November 6, 2006. We discussed the new -construction development project of a single-family home at the property located at 1215 East Hopkins Avenue (Lot 4, Promentory 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 26.104.100 — Calculations and Measurements — City of Aspen Land Use Code: C. Lot Area. Except in the R15-B zone district, when calculating floor area ratio, lot areas shall include only areas with a slope of less than 20%. In addition, half (50) of lot areas with a slope of 20-30% may be counted towards floor area ratio; areas with slopes ofgreater than 30'0 shall be excluded. The total reduction in FAR attributable to slope reduction for a given site shall not exceed 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 of Aspen or Pitkin 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. "en calculating density, lot area shall have the same exclusions and inclusions as for calculatingfloor loor area ratio except for exclusion of areas of greater than 20%slope. Rationale for granting contour interpolation: The comer lot is small and actually non-confornvng 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 an unnatural bowl effect in the lot which is made worse by the use of a steep and tall non -conforming boulder wall along a good portion of lot edge near the corner 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 areas of hatching representing grades over 20%, but there is not nearly as much allowing us to increase, 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 arbitrary grading of the previous development on this particular site, be granted. Sincerely, John G. Martin V e S 20uo W FA I I I 1 I I I I I LOT s I %I I ASC• An I SIDE SETDAL- — — Duna ix�.na�71?M' �• __/(/_ lE— / MIDLAND AVENUE ..O.N .DIN YMIATTEO 41 ti 4 p Y X C re SLOPES Ill-JOK 15c p. 11. 2 SIOPEi > ]O1[ � 1.014 .p. ll. ® AREA OF ACCESS EASEWkT - 49 .O. It, 2"75,029 COIC.MCOn. ono --mil, C. LOT Moe. Nlta <Olc.alin�llOpr area rOlo, al .r1a. anon PI.i3OO Only a .;tN o d.RO .1 1.. IN.n 201E. In odO;on, hall (.60) 0' at Or.O. o0N a Glop. Ol 20-501E .,y IN =tad W-4. I,—.— .V M.m V .lap.. el q.ofu trap 301C .hell M ...I.d.d. Tn. Iola ra0l+ctiorl to rAR .tNIOwObI. 1. .4 p. n0Oc0on for a 9L'. M..nan not ..0 d 251L. AUe ..d.d.d Irani laid al e _ I. Ilat On. ...OnIn On a.i.lip a prepa..0 Mill r;ght-d-.Oy er -d— ea.emoal. LOT AREA - 6.170 S0. FT, ARFAC- ���OT AREAS OEMEN 209 ANO 30R SLOPES - 3 50 So. FT. (5" COUWED) - 178 So. rl. AREAS EECEED04G "K SLOPES - 1.014 SO. rf, �r�c o =g FASr�����A. LOT AREA TOTAL (FOR FAR) 4,929 S0. FT, EXISTING CONDITIONS -SITE PLAN • / r I N07E . � TH( 1 5 P I�OPp}E0 THE INTERPOLATION 0( GRADE UTAS TO SMON *KkT THE CONTOURS WOULD r / PAVE LOOKED LIKE HAD THE SrTE NOT BEEN SCRAPED / / RAT FOR THE DEVELOPUM Or THE [X,STING HOUSE. THE INTERMATEO LOT LINES CONNECT TO THE :i EXISTING GRAM LINES AT THE PROPERTY LINES. BUT -LLVC A EIORE NATURAL AND GENTLE SLOPE 11T+ICP1 I / LOT CLOSELY tAATCHES THE SLAP[ OF THE STREET. , Asn roe HO IfOaa H — a —r.1 a...' C/aC11ll\a I11a11 MLS W aURsla=. - / S„ C. SETBACK a A n 1EXISTIN40 GWRADEECONTOUR LINES. �y r '1 1 INTUtPOOOLLATEO / GRADE LINES. 1 I \ / TYP. Iv b LO E' 4\ I ALT. MW 5CTDl CK 1 _ IlumbeRS— — — — ilk I — 7416 MIDLAND AVENUE —A. wl. {IyPurl(0 n SLOPES 20-3oR - 25D .p H. to SLAPS > ]OB . 1>4 .p 14 25.575-020 Cakablkn. one mw.ar.m.nl.. C, Lot Ana. cakubunp Haar ana rock, lot Grp. anal, d+M .r.o. Rim • .bv. N k.. Than 20X. In oaaluan. Alt (SO) of bl ai.o. Rath o M.P. OI 20-309 r^a7 M covntae lo.w.. two, area rota. Haw aA 1, .kM. el Braa1M Ina. 301E ahaa 0. aclya.a. N,. IaIM r..uclbn to FAR "I"-loOla To a.op. naualian for o qi— .11..hall rut ..,.d 25C Alan ..cba.e from total bl — __ i- flat a— ....ltNn an .:RlinE w prapawd Oarkel.e Ayhl-W-.p7 a aAoca .oHrtRM. LOT AREA - 9.170 50. FT. suBTRAcr AREAS- (SHALE OT EYCE(D 2SX - I.Sf2.5 50. FT.! AREAS "EEN 20X AND 30X SLOPES 2ED so. FT. (SOX COUNTED) - 145 SO. rT. AREAS EXCEEDING !OX SLOPES - 135 SO. /l, AafAf OF ArL[cc FLVHPNf . Aa m A. LOT AREA TOTAL (FOR FAR) aM1 So. rl. EXISTING SITE PLAN WITH INTERPOLATED GRADES • 4e • T RoPtINS 50 a.o.w. sr.,_ Av�NUR 8 z✓ 15.5 YELLOW BELOW P AVEKEI ONSOUTHBOU D, t ATTACHMENT 3 DIMENSIONAL REQUIREMENTS FORM Project: __r'L7Ty 2 1;'F SI Gam) AGE Applicant: Location: 1ZlS !%.1�r?�4C�t.\� i4�li i LLi u�Ir:C�ic�sT[e( �icl�:Jt51crJ� Zone District: � . _�•.:JF�I /� I t:t � `•(' 1�1'St lE ►=Tri�.L, f ��(c � Lot Size: Co.I"tf? -n • {, _ _ Lot Area: { 'Let 'c-? , (for the purposes of calculating Floor Area, Lot Area may be reduced for areas 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:__ 1'4.4, _Proposed: Number of residential units: Existing:.___[ _ _. _Proposed.• 1 _ Number of bedrooms: Existing:_ Proposed % of demolition (Historic properties only): A DIMENSIONS: Floor Area: Existing: o Allowable: 2�r;-40, Proposed.- 0 >;C )-( I,!e, c t % Principal bldg. height: Existing: _'Allowable: 25 Proposed:_?S� Access. bldg. height: Proposed:. On -Site parking: Existing:—) -0- Required- 2 CAS- 5 Proposed: 6,4- o Site coverage: Existing: I p ro Required: 50 X Proposed: ?L % Open Space: Existing: �jt.� �� Required: rU v Proposed.• Front Setback: Existing: N-C • Required:__rO _ __ Proposed.- t Rear Setback: Existing: h1-C Required._!C-1 Proposed: it" Combined 1=/R: ErWing: A;. [ Required-_ ;'E= Proposed: Side Setback: Existing.__N C . Required. <a . -; Proposed: Side Setback: Existing: K, • C_ _Required. `� _Proposed: I Combined Sides: Existing: N,.G Required: 11 •7 Proposed jt • 7 Distance Between Existing __AL ._Required:_^ Proposed: Buildings Existing non -conformities or encroachments: T`i =� i 1` M1!r J "ft`!��c�kMtti►L, Foe !,'rt;ro I "F�­ f1--L•tr ,s 't*'r r!/$ Variations requested: 1, Lo2k&tf V5 • dboi,E hyi Jib i AN; •- -e Aiwc !. A[ (, <rTkA v— Z. 57etvl fACrIJ4 kod1;7GW5 IC 5E-t tJ f3C*sacuiJ_!I --f 121, Nov 9 8 a06 I B ASPEN 4 PITKIN COMMUNITY DEVELOPMENT DEPARTMENT PERMIT APPLICATION PITKIN COUNTY ❑ CITY OF ASPEN ❑ 0 South Galena 970 / 920-5526 970 / 920-5090 DOy�! Zi�3 .gIC Beneral Aspen, CO 81611 970 / 920-5532 Inspection Line 970 / 920-5448 Inspection Line PERMIT NO. Ao licant to complete numbered spaces only, Permit JOBADDRESS 1. 12157 C I.GI S A ✓F As er-J CeD g I t I BD z c LEGAL DESCRIPTION 2. CO DE % OWNER MAIL ADDRESS ZIP PHONE 3. 21 S Eh-s1 �i-a P NS tic y46 `7 (26v F?jC ('�. t-�Tnri 1='L FD OWNER'S AUTHORIZED AGENT ;l,:dL ADDRESS PHONE UCEN NO 4. FN MH CONTRACTOR MAIL ADDRESS 5. S%p�81ks� c'�,fv�, 01z�.•;-or?8�:>c�6+t'� ,'ZD�4 �(�Il '.' �Z;�'.�0�.� 7g�4 ARCHITECT OR ENGINEER OF RECORD MAIL ADDRESS `�ZG�HONE S Q�C�' LICENSEJNO 6. -3oA-rJ G. �tA r J V--C4,bl ' � �. �oX 4?o �C Go I I 11 A G� �Y�S RF SN CLAKOF WORKENERGY 7• R NEW ADDITION ❑ ALTERATION ❑ REPAIR ❑ CODE FEE IFEE Q, �b2. USE TAX CENSUS CODE G.I.S. 5S-off Z D USE OF BUILDING FerSeINGLE FAMILY ❑ MULTI -FAMILY 8• ❑ COMMERCIAU ESIDENTIAL ❑ COMMERCIAL ❑ OTHER PLAN CHECK FE PERMIT FEE 111 j �u f I /� ZONING FEE ./ �I\ lJ M ti = O Z m � J Ur ALUAnON OF WORK �DOSTINGSQ. 9. l q 5� g� . 00 FOOTAGE 1 �. 0 SQUARE FOOTAGE THIS P IT--// 30 Type of Construction y a Occupancy Group Lot 9-3 Ze<sIR- Area 11. Is there food service in this building ❑ YES 2<0 e of Bu��, I Square / No• of stones GCC. I 1 w/1TS1.1 r Load �(Tot 12. is LPG used? ❑ YES 5�<o 13. Parcel ID# call 920-5160 1-7 3' + O 1 NO. OF BEDROOMS Use Fre Sprwders Regw ed'! Yes ON. TAlain System Requ'veC1 ❑Yes ❑No EXISTING AD D 14. Description of Work No. of Dwelling Units / OFFSTREET PARKING SPACES ��:d Covered Uncovered SPEC/IAL APPROVAL$ REQUIRED AUTHORZED BY DATE ZONING H.P.C. ly PARK DEDICATION g� PRESUBMITTAL APPLICATION ACCEPTED PLAN6`tHEZM APPROVED FOR ISSUANCE ENVIRO. HEALTH ENGINEERING Q L BY /.f L�` DATE BY BY il� PARKS 0 DATE DATE! ^ -Q1 DATE NATURAL RESOURCES FIRE MARSHAL z '1, / L� • Qt6 WATER TAP Z NOTICE SEPARATE PERMITS ARE REQUIRED FOR ELECTRICAL, PLUMBING, HEATING, VENTILATING OR AIR CONDITIONING, ASPEN CCNSOL SAN. DIST. OTHER Rlgttt P . D c THIS PERMIT BECOMES NULL AND VOID IF WORK OR CONSTRUCTION AUTHORIZED IS NOT COMMENCED WITHIN i2 MONTHS OR IF CONSTRUCTION OR WORK IS SUSPENDS b OR ABANDONED FOR A PERIOD OF 180 DAYS AT ANY TIME AFTER WORK IS COMMENCED. PAYMENT OF PITKIN COUNTY USE TAXI 1 HEREBY CERTIFY THAT I HAVE READ AND EXAMINED THIS APPLICATION AND KNOW THE MONTHLY SAME TO BE TRUE AND CORRECT ALL PROVISIONS OF LAWS AND ORDINANCES GOV- OR QUARTERLY RETURNS WILL BE SUBMITTED. ERNING THIS TYPE OF WORK WILL BE COMPLIED WITH WHETHER SPECIFIED HEREIN OR ❑ DEPOSIT METHOD .5% OF 25% OF THE PERMIT VALUATION PAID NOT. THE GRANTING OF A PERMIT DOES NOT PRESUME TO GIVE AUTHORITY TO VIOLATE AT ISSUANCE. A FINAL REPORT ON TOTAL ACTUAL COST MUST OR CANCEL THE PROVISIONS OF ANY OTHER STATE OR LOCAL LAW REGULATING CON- BE FILED WITH IN 90 DAYS OF SUBSTANTIAL COMPLETION OF STRUCTION OR THE PERFORMANCE OF CONSTRUCTION. IT IS MY RESPONSIBILITY TO WORK AND / OR ISSUANCE OF THE CERTIFICATE OF OCCUPANCY. EVIEW THE APPROVED PLANS AND ANY COMMENTS THAT ARE CONTAINED THEREON ND SEE THAT THE STRUCTURE AND/OR PR(5JECT IS BUILT IN COMPLIANCE WITH ALL PI ❑ EXEMPT: EXEMPT ORGANIZATION ❑ RESALE: STATE & PITKIN COUNTRY RESALE NO. IGNAn THE DEPOSIT METHOD WILL BE ASSUMED UNLESS OTHERWISE NOTED. ANYONE WHO USES AND / OR CONSUMES BUILDING MATERIALS AND FIXTURES IN ,RINT NAMe - PITKIN COUNTY IS SUBJECT TO THE .5% USE TAX- I SIGNATURE OF OWNER (IF OWNER BUILDER) (DATE) 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 ONLY WHEN VALIDATED WORK STARTED WITHOUT PERMIT WILL BE DOUBLE FEE Energy Code Fee Plan Check Fee Zoning Fee GIS Fee Permit Fee Use Tax Deposit Fee Other Fees 11$2•5-6 -7659. Sy = tYYyTO 53^00 f fgol6m - Os7 G WHII 'OPY CANARY -APPLICANT V ZONING CHECKLIST Date: _ 6 + 01 Owner's Name 21 S �w' HowwI L L C Permit g.A � Contact Person_ Address _(215 EAST NoEY-1 � 5 AYE. ,4 S p� Co 8 IrP( 1 Legal Description P o o V l oN Zone District _ Certified Survey o 6 PLANNING APPROVALS: HP C Design Review, Stream Margin_ GMQS Bd of Adjust TYPE OF WORK Conditional Use 9040 Greenline View Plane Special Review PUD New ConsiructionD RemodeVAddition Demolition/Relocation Sin le -Family Duplex Accessory Structure Commercial Multi -Family - 4 of units Employee House - 4 of units LOT SIZE: (G , I :7 ° LOT AREA: SETBACKS Allowed (Princi al/Acc) Proposed (Princi al/Acc) Front d Rear b O Combined Front/Rear / Side Combined Side Distance btw buildings Comer Lot HEIGHT (Principal/Accessory): Allowed: %-� Proposed: 6 FLOOR AREA: Allowed:.2 V.2 Proposed: ^ Exempt Space (s.f.) Garage U Subgrade / l i 7iDecks u% 35- NET LEASEABLE SF Existing: - Proposed: OPEN SPACE % Required: Proposed: BEDROOMS Existing: Proposed ,S SITE COVERAGE Allowed: Proposed: t, ON -SITE PARKING Required:Proposed:'- 2- FEES: School: %2� �>ark Dedication: � Cash -in -lieu:_ s� �i� Planning tees paid: ` Drn 0 0 (�AA 46�7 03 RESIDENTIAL DESIGN STANDARDS SITE DESIGN Building Orientation: O Build -to -Lines: f. Fence: BUILDING FORM Secondary Mass: PARKING, GARAGES & CARPORTS BUILDING ELEMENTS f 2 y rXjhr,tr! 1; Access (i.e. alley): 4//143 Windows: — Garage width: _ 6 (L Door: Garage Iocation: O GL Porch: v Driveway cut: AFL- Principad window: till Entrance width: p IL One story element: 0 Single stall doors? OIL Lightwells: n lG CONTEXT Materials: Inflection: DITIONAL NQTES: L, „ye 4J x - . ccyl0 e 64,&4 s �2foD... �- CT� 166,tL( v p I' �A 906 �j I W low- &us — n)e e, d-a /Z4 0 0 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 1970.429.2765 www.aspenpitkin.com/ 8/28/2009 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. 9 T 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 26.306.010.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 CC'0 ,20090 A SLUG KLEIN, COTE & EDWARDS, LLC - ATTORNEYS AT LAW HERBERT S. KLEIN 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 hsk@kcelaw.net lrc@kcelaw.net jee@kcelaw.net ctz@kr,elaw.net kcelaw.net epc@kcelaw.net mbk@kcelaw.net dcu@kcelaw.net August 5, 2009 HAND DELIVERY Chris Bendon City of Aspen Community Development Department 130 S. Galena St., 3ra Floor Aspen, CO 81611 TH MILL STREET, STE. 203 TELEPHONE: (970) 925-8700 FACSIMILE: (970) 925-3977 www.keelaw.net 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 f2, 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.C., 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 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.C., 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 cc: Paul and Angela Young young\l Bendon interpretation request.doc ®TTENJ®HNS®N ROBINSON NEFF+RAGONETTI,, August 28, 2009 J BART JOHNSON 970 544 4638 BART@OTTENJOHNSON 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. Slope 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 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.' This ambiguity has ' 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 81611 P 970 544 4637 F 970 544 4632 W OTTENJOHNSON.COM DENVER ASPEN STEAMBOAT SPRINGS i E 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. for the Firm Enclosure 917165 1 cc: Suzanne Foster Jody Edwards • 0 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070, ASPEN LAND USE CODE, ADDRESS OF PROPERTY - Aspen, CO STATE OF COLORADO ) } ss. County of Pitkin ) 5,, 21.1 S. `7(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 26.306.010 (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 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 than fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. Signature The foregoing "Affidavit of Notice" was acknow edged before me this 257 day of 200_1 by�of�1 J,1 WITNESS MY HAND AND OFFICIAL SEAL My commission expires Notary Public ATTACEUgENTS: COPY OF THE P UBLICATION CORY J. GARSKE: Xio My Commission Ezpneb o6otz012 0 is PUBLIC NOTICE RE: INTERPRETATION OF THE LAND USE CODE - DEFINITION OF A DECK AND CALCULATION OF DECK AREA. NOTICE IS HEREBY GIVEN that a code interpretation regarding the meaning of the defined term, Deck, and calculation of decks and space underneath decks. The interpretation request was 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. The interpretation and is available for public inspection in the Community Development Department. For further information contact Chris Bandon at the City of Aspen Community Development Department, 130 S Galena St, Aspen, CO, (970) 920.5090. Published in the Aspen Times Weekly on Septem- ber 6, 2009. [39722741 rk 0 • -F IDAYIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070, ASPEN LAND USE CODE ADDRESS OF PROPERTY: J%l it Aspen, CO STATE OF COLORADO ) } ss. County of Pitkin ) I, Aii ofA (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 26.304.060 (E) or Section 26.306.010 (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 no later than fourteen (14) days after final approval of a site specific development plan. A copy of thepublication 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 publication is attached hereto. Signature The foregoing "Affidavit of Notice" was acknowledged before me this g day of , 200_2, by s�-ric,:ej o "SCCz4�� _� 4 WITNESS MY HAND AND OFFICIAL SEAL My commission expires: C1 /Aon Notary Public ATTACHMENTS: COPY OF THE P UBLICATION ��tY PVC CORY J. GARSKE My Commission Ezpiren 090912012 PUBLIC NOTICE RE: INTERPRETATION OF THE LAND USE CODE - FRO."T, SIDE, AND REAR YARD SETBACKS FOR 219 SOUTH THIRD STREET. NOTICE IS HEREBY GIVEN that a code interpretation regarding the setbacks for a property located at 219 South Third Street. The interpretation request was submitted by Suzanne Foster, owner of 219 South Third Street. The interpretation and is available for public inspection in the Community Development Department. For further information contact Chris Bandon at the City of Aspen Community Development Department, 130 S Galena St, Aspen, CO, (970) 920.5090. Published in the Aspen Times Weekly on Septem- ber 6, 2009. [3972359] A-FFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070, ASPEN LAND USE CODE ADDRESS OF PROPERTY: Aspen, CO STATE OF COL:ORADO ) } ss. County of Pitkin } 1, 's c a--/, (name, please print) being or repro enting an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26304.060 (E) or Section 26.306.010 (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 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 than 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 200_1, by —Ajn4,0112 r WITNESS MY HAND AND OFFICIAL SEAL My commission expires: I Notary Public ATTACHMENTS: COPY OF THE P UBLICATION 0.. Pv CORY J. GARSKE i My caf mesion Ezpi as ohl qoQ • 1 J PUBLIC NOTICE RE: INTERPRETATION OF THE LAND USE CODE - CALCULATION OF LOT AREA AND MAN-MADE TOPOGRAPHY. NOTICE IS HEREBY GIVEN that a code interpretation regarding the calculation of Lot Area, Section 26.575.020.0 of the City of Aspen Land Use Code in stances where the natural pre - development terrain has been modified. The interpretation request was 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. The interpretation and is available for public inspection in the Community Development Department. For further information contact Chris Bandon at the City of Aspen Community Develop- ment Department, 130 S Galena St, Aspen, CO, (970) 920.5090. Published in the Aspen Times Weekly on Septem- ber 6,2009.(3972313] r ■ 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.nnsL �si-e.✓' Article Number (Transfer from service label) 91 7108 If YES, enter delivery address below: 3. Service Type Certified Mail ❑ Express Mail Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes L33 3936 9382 9571 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE First-MJft M PostageA, Fe s-P&a USPS -10 Permit No. G 0 Sender: Please print your name, address, and ZIP+4 in this box 0 Community Development Departmertt 130 S. Galena Street Aspen, Colorado 81611 H, k. I I I i. H , , 11 H I I I H I Mll.i. 11 ... 1,11 � "I "id ■ Complete items 1, 2, and 3. Also complete A. item 4 if Restricted Delivery is desired. X ■ Print your name and address on the reverse so that we can return the card to you. B. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: ►�- �F2� E rf`IA�nS-t. `fit o Sig atu ❑Agent ❑ Addressee �Jtby(Pfi tNarne) C. ate of Delive R Is delivery ad different from Rem 1? ❑ Yes If YES, enter delivery address below: ❑ No / 600ti 3i,Spcvlce Typied ` ZI �rtified Mail [� Expl+ess ❑ Registered ❑ Re handise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) 13 Yes 2. Article Number (Transfer from service /a 91 7108 2133 3936 9382 9984 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE • First -Class Mail Postage & Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • 4\0..S _a 0_v. Community Development Depert►lteet 130 S. Galena Street Aspen, Colorado 81611 ■ 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: C CO 413 W. A Si n lure El Agent ❑ Addressee B.-Ax@ived by ( Tinted Name) C. Date of Delivery A� D. Is deli�ry, addlress different from item 17 ❑ Yes If YES, enter Oelivery address below: ❑ No 0 3. Service Type Certified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number 91 710 8 213 3 3934 3 813 5004 (Transfer from service /abed PS Form 3811, February 2004 Domestic Return Receipt 1 02-Md540 UNITED STATES POSTAL SERVICE 10111111 First -Class Mail Postage & Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • Community Development Department 130 S. Galena Street Aspen, Colorado 31611 ■ 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: 11 cohl 20I N. NW SV*Wa'3 ca $ t Io ( 1 A ❑ Agent ❑ Addressee ecgJ'ved by rioted Name) C. D t, � orDeery D. Is deliv address different from item 1? LJ Yes If YES, nter delivery address below: �j No ice Type rtified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number (rransfer from service laben 91 710 8 2133 3936 9382 9991 PS Form 3811, February 2004 Domestic Return Receipt 102695-02-M-1540 UNITED STATES POSTAL SERVICE . First -Class Mail Postage & Fees Paid LISPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • C �vi� 13tr-, Jaye Ccrr,Tt;^,y Dcveic M "" ^ ' "^e rt 130 S. Galena Street Aspen, Colorado 81611 ■ 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. Article Addressed to: cc, gk(. I SqVe V R �O ❑ Agent ❑ Addressee B.JIL jv�,y (fiidILIC�eb C. D to of Delivery j. C11��111'll:l� U a D. Is delivery address d1? Yes If YES, enter delivery address below: ❑ No 3 Service Type Zrtified Mail ❑ Express Mail ❑ Registered ❑ Retum Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Deliver)? (Edm Fee) ❑ Yes ' 12. Article Number (transfer from service iabeo 91 710 213 3 3936 9383 0003 PS Form 3811. February 2004 Domestic Return Receipt 102595-02-WlW UNITED STATES POSTAL SERVICE First -Class Mail Postage & Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • Community Development Department 130 S. Galena Street Aspen, Colorado 81611 It„I..,,II.II,,..,II... Il,.fll.l,Ill,,­l11..111ll.I.IIIIII • a �?4 � 0�, a v h, �;: � ,- / llne"swo -- ev Jdc'7 co�e- 20 /U-,. A `/ fl- k GQ v66 t/ g- 6"�07 c'� A4 1-61sT ool Fil CO m Er -0 m Ir m m m ru ro o Ir EC ca 5 c Ce) E E C, Q U) LL0 U) CIO cts V) N oo Z5 -- U) CV El 0 LLI 7r Q�itNO 7- ro Ir Ir ru m Er _n m Ir m m m n-i ro El r-q Ir co a) w 0 0 0 O 0 C') cl— CZ — En E E 0 0 CC) uj < Wel,. 0 6 �tf�t� r vN W 0 cr y 4 uj Y4 = r R J O v � I rq Cc � � r- Er Y (p } a, m -�� m 0 00 m a) = 0 ru co ED 06 �'� Q '� ca Q s rq ;T AY 0 IL I Ir Ir ru ro m a- m cr m m m nu ED El Ir 11 IOU '0 ou) U 0 (D Ln Ln tr ru co m m m m rq ru co Ez) Ir 44 to " 0a 0 7 6g0 a F oD a iC LL LL N /NO a U-1 Ir ru ro m Er m o- �_ m �- m m a ru ro 0 .- a Ir • C."s r ck-i, ��. 21�- 353- t�o'I THE GrY 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 You, ennifer Phel eputy Director City of Aspen, ommunity Development Department CADocuments and Settings\jennifep\My Doc uments\planning\Templates\Template s' Land Use Cases\Completeness Letter Land Use.doc