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coa.lu.ca.Aspen Grove Sub.0049-2005
5P� C3 vC*-r•.t. S, w ic+r Appeal of Admin DacsT,ML —273707348001/002 --raMe 0049.2005.ASLU — CI "MA Z O. N E ARCHITECTS L L C. P.O. BOX 2508 ASPEN CO 81612 Ph 970.544.3541 F 970.544.8211 July 9, 2007 Community Development Department Attn: Joyce Allgaier RE: Lot 1- Aspen Grove Joyce, RECEPTION#: 540087, 07/20/2007 at 09:50:44 AM, 1 OF 6, R $31.00 Doc Code ADMIN DECISION Janice K. Vos Caudill, Pitkin County, CO Thank you for taking the time to meet with Ken and I last week regarding the access condition at Lot 1 Aspen Grove. As we discussed, the field copy of the permit set has a note calling attention to the driveway and the maximum allowable height of the driveway above grade in the setbacks. It appeared to be more of a general note and the permit was issued. The contractor, upon reviewing the set, requested that we investigate the note and verify that the driveway was in compliance with the code. Upon further research into this matter, we discovered that one corner of the driveway is non -conforming, with the maximum non-conformance being approximately 12". Per the resolution reached in our meeting, this letter will serve to outline the issues at hand, the site specific constraints, identify an area of the driveway that is in minor non-conformance with the 30" rule for driveway height above grade in yards (setbacks), and shall be included in the project file so that it is understood that interpretation of the code and the non-conformance have been reviewed and accepted by the Community Development Department and will not require any further modification to the driveway, residence, or site plan from what has been already permitted. Lot 1 Aspen Grove is also referred to as the "Finger Lot", because of its long and skinny profile created by McSkimming Lane as it cuts across the hill, switchbacks, and continues running in the other direction. The width between east and west setbacks is approximately 40 feet and there is a roughly 10 feet of average grade drop running from east to west at the south end of the lot and is fairly constant along the 211 foot north/south axis. The side setbacks run parallel to the road and the house, with the front setback facing the switchback The only feasible access points are from the side setbacks, and because of the configuration of the lot, road, and slopes of the site- it is challenging to get a vehicle off the street to park. Many studies were done that explored various locations for driveway access. We quickly discovered that the west edge of the property (downhill slope side) was the least favorable point of entry, since, due to the restriction of grade modifications within setbacks, the slope of the driveway was extremely steep. Focus then shifted to finding the most favorable location on the eastern (uphill) side of the site that would allow the house to sit comfortably within the site grades and provide access that met the code requirements. The north and south ends of the site were ruled out because of the grade changes (north end) and safety concerns (south end). This left an area towards the middle of the site that we could explore. Once the best area for entry was located, the next step was to begin locating a driveway that would work within the parameters of the code. Per the code currently posted on the website, it is permissible to change the elevation of grade within setbacks by up to 30", it is also permissible to have a driveway be up to 30" above or below grade (does not specify existing or finished - interpretation by Comm Dev. that it can be either). Because the driveway had to be short and come directly off of the road, the pitch needed to be shallow so that during slippery conditions, cars would have a more manageable time entering and exiting the property. Combining this with the desire to situate the upper level floor in such a manner that would reduce the amount of excavation and stabilization that would occur below the east portion of McSkimming Road, we placed the house where it is currently shown and raised the grade within the east setback by 30" so that our driveway was within 30" of that grade elevation. During the design process, we cut a couple of sections through the driveway to make sure that it would conform with the code (Section A). However, we did not realize that a very small portion of the driveway on the southernmost edge was not in conformance with the 30" above grade rule (indicated as a shaded area on the attached plan). You will also see from the attached Section B that at its worst point the driveway is only approximately 12" above the 30" rule and quickly becomes conforming as you move to the north and east. As per our meeting, we can not change the configuration of the garage to resolve this issue since it only occurs within the setback. For the driveway to technically comply, we would have to remove a rectangular section that is about 4x2 feet on the southwest portion of the drive within the setback. It is our feeling that doing this does not reduce the size of the residence or appearance of the driveway, but serves to make a less than ideal entry condition even worse for the occupants. We also do not believe that the spirit of the code is being violated and that the current driveway configuration represents one of the least impactfiil ways of getting vehicles off of the road and onto private property. For these reasons, we would like to thank you for your understanding of this situation and allowing this matter to be resolved with an administrative action. g rone Architects Accepted by: �Joycegaier Deputy Director- Community Development Department Attachments: 1Ix17 Reproduction (Not to Scale) Improvement Survey Partial Upper Level & Site Plan Section A -A Section B-B WaQ.ST- LA�S''� S�cT�vt�l S�GTlvt�1 B �CS�1 � M1N LD��JF lop I + / Dv,1\1 W Av / �iN. 815'1'-1 L DT I - ASFV N GlzoV�. me ma -4 0093.Zoo6 Acelf- FAi-11A1. V?MV_ LF.%ft L 4 srM ft K4 Sc XLE : I/.} � _ u. _ 0.. 8154 .#S / No —IT_-: CoN•TWes sktuwNl YlkDE tAmn on / / / / / p¢O?e?,- N L IMF- {�1 hTGt4�D AC�P � doll- Gcn.l�o4.u9�rlc-E r W T - LU MCSKIMMING LANE I SETBACK i \ � I MG3KIN IMMG - P APPROX. 8155'- "SISH ` ` \ I I=96Y TD. SLAB- H.P. 6154'-5 1/4" 30" ABOVE ALLOWABLE FINISH GRADE MAX ALLOWABLE FINISH GRADE- BASED ON 30" ABOVE NATURAL GRADE 813S' - 5" I W' z Lu I I MGSKIMMING LANE SETSACIG I I I I i I I rlcs�clMM1r. .� \ FINISH DRIVEWAY MRAPE I I I I I I SECTION 5-5 TA. SLAB- 8154'-5 1!4" 30" ABOVE ALLOWABLE FINISH GRADE MAX ALLOWABLE FINISH GRADE- BASED ON 30" ABOVE NATURAL GRADE 8139'-9" 0 0 City of Aspen Community Development Dept. CASE NUMBER 0049.2005.ASLU PARCEL ID NUMBER 2737-07-3-48-001 PROJECT ADDRESS 214 E BLEEKER ST PLANNER CASE DESCRIPTION REPRESENTATIVE CHRIS BENDON DATE OF FINAL ACTION APPEAL OF ADMINISTRATIVE DECISION - FRONT SETBACK ON 11 /7/2005 CLOSED BY Denise Driscoll 11/6/2005 12:02 0 -.4TMGk EDICAL DENTAL NEW REA N PLAN 7- Day OPEN S/GNUP by Friday with NO HEALTH QUESTIONS MONTHLY PRICE COVERS INDIVIDUAL FOR -95 119 Family $109.95 Health Care includes: • Doctor Visits • Dental • Hospital Visits • Vision • Emergency Room • Hearing • Urgent Care Facilities • Chiropractic Care • Physical Therapy • 24 Hour Nurse Hotline : • 7.5K Medical Accident • Maternity : • 25K Accidental D&D • Many other benefits ' • .................................. Outpatient Testing ............... ...: $10, $20 and $40 MAX -PAY PRESCRIPTION CARD ...................................... ➢ All physical conditions : accepted! No age restrictions! Monthly pricing will never go up once you are in the program! ➢ No deductibles! No limitations on usage! Y You cannot be singled out for rate increases or cancellations! : ....................................... CALL TOLL -FREE TODAY! 1(800) 913=0755 Mon -Fri 7am - 6pm (CST) Se Habla Espanol (con o sin seguro social) If you have received this in error or wish to be removed from our database, please call toll free: 1(866)526-9320 0 • October 25, 2005 Susan Capiel/Collin PO Box 3057 Aspen, CO 81612 Re: Copy of Interpretation Dear Susan: Pursuant to your request, here's a copy of the Land Use Code interpretation affecting the setbacks for Lot 1, Block 3, Aspen Grove Subdivision. Please contact me if you have any additional questions about this. 429.2765. Sincerely, Chris Bendon, AICP Community Development Director City of Aspen Zf \, V\ 6" 0 4A File Edit Record Navigate Form Reports Format Tab Help P_todule Help yl1i. Conditions Sub Permits j Valuation Public Comment Attarhmeraa Main ( Roytinq Status Arch/Eng Parce}s I Custom Fjdds Fees 1 Fee Summaty I Actions I Routing Hisir,ry Permit Type laslu 7'Aspen Land Use 2004 PermR # 10049,2005.ASLU Address 1214 E BLEEKER ST J Apt/Suite COY ASPEN State CO Zip 81611 jPermit Information _.. ____ _..................__.......__ ..- ..`..:. I Master Permit Routvg Queue aslu Applied 06/lfil2�5 t `-- I Project Status pending _ Approved I �- Description APPEAL OF ADMINISTRATIVE DECISION - FRONT SETBACK Issued �_J I Final �r Submitted O5EPH E EDWARDS 963.2111 Clock Rumng Days 125 Expires �06/11/2006 r Visible on the web? Permit ID: w.._....... 34617 Owner r _ Last Name CROCKETT RUFUS First Name I PO BOX 3837 ASPEN CO 81611 Phone �� v Enter the permit description View Record: 1 of 1 Afffe,�� Nv\(e� DRAFT (1) There is sufficient existing and projected need within the County and Region to warrant and support the proposed activity; (2) All detrimental environmental impacts will be mitigated or compensated for; (3) The proposed activity will not conflict with surrounding land uses either as they exist currently, or as approved by County plans; (4) The activity will provide for transportation, waste and sewage disposal, water, schools, parks and recreation, and other services deemed necessary by the Board in sufficient quality and quantity to meet the needs created by the proposed activity and in a manner that will not overload the facilities that provide such services existing within the area of the activity; (5) The proposed activity will not make demands upon natural resources, including, but not limited to, energy resources, which demands are, in the opinion of the Board, excessive when compared with the value of the activity; and (6) The proposed activity is of general benefit to the residents of the County and Region. [Existing] 2-40-0110 Takings Determination (a) General Any applicant for a development permit who is adversely affected or aggrieved by a determination by the Hearing Officer, Planning and Zoning Commission or Board of County Commissioners, and where such applicant contends that the determination constitutes a taking of all economically beneficial use of private property without just compensation in violation of the United States or Colorado constitutions, the property owner shall, as a prerequisite to appeal or judicial review of the decision, request a hearing pursuant to this section before the Board. Refer to Sec. [5-220] for submission contents and Sec. [3-290] for standards. [Revised] (b) Time -frame for Appeal An application for a takings determination shall be submitted no later than fifteen (15) working days from the date of decision that the applicant believes constitutes a taking of all economically beneficial use of the property. Within fifteen (15) working days of the receipt of a written request for a hearing pursuant to this section, the Board shall conduct a hearing, and within fifteen (15) working days after such hearing shall render its decision. [Existing] (c) Applicability In the event that a petition is submitted under this section, the County's determination on the underlying application shall not be considered final Pitkin County, Colorado Chapter 2: Review and Approval Procedures 86 Clarion Associates — Alan Richman PUBLIC DRAFT July 2005 ,5kf 617L h« 7 Y "q ,--z S . vk�Mk Gas (rle►L- GZ<G��G �r/�t�i�+ � � 'J , as 4rj4A Ve, - 44dwi-1 4vrl� 1104- car `Alk cri � 0 A ,� MEMORANDUM TO: City of Aspen Board of Adjustment FROM: Chris Bendon, Community Development Director Aw RE: Appeal of Administrative Decision — Setbacks for Lot 1, Block 3, Aspen Grove Subdivision. Resolution No. 4, Series of 2005, Public Hearing Continued from 9.15.05 DATE: September 29, 2005 SUMMARY: The McSkimming lot (Lot 1, Block 3, Aspen Grove Subdivision) is a long rectangular property bounded on three sides by roadway and on the fourth side by an adjacent parcel. The Front Yard (setback) of a property is defined as "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." A parcel's Front Lot Line lot is defined as "the line normally closest to and/or dividing a lot from a street or street right-of-way." When a property is bounded by street on more than one side, "the owner shall have a choice as to which yard shall be considered as the front yard..." The code also dictates "the rear yard must coincide with the rear alignment of neighboring lots regardless of which yard is considered the rear yard by the owner." The code defines Rear Yard as "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. Rear Lot Line is defined as "the lot line opposite the front lot line." From this, staff concluded that the rear yard must be measured from the lot line adjoining the neighboring property. This would ensure that the rear yard would coincide with the rear yards of neighboring properties. Staff also concluded that the front lot line could be any of the remaining three lot lines — that the code did not dictate a particular outcome and clearly enabled the property owner to decide. The Director rendered this conclusion after the property owner asked for a formal Land Use Code Interpretation. The Director is enabled to make interpretations of the Land Use Code. The process for Interpretations allows the party who requested the interpretation to appeal the Director's decision to the City Council. The party requesting the interpretation, the owner of the McSkimming parcel, did not appeal the Director's Interpretation. The meaning of the definitions listed above was clarified through the interpretation and is not the subject of today's consideration. 1 Applying the Land Use Code to development proposals is the responsibility of the Director. This is an administrative function of the Director. Appeals of administrative decisions may be made by anyone and are heard by the Board of Adjustment. In this case, the Director's accepting of the property owner's decision as to which lot line to define as the Front Lot Line is the administrative decision. The Board of Adjustment is required to review appeals based on the following standards of review: "A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion." The appellant claims that the Director exceeded his jurisdiction. The appellant claims that the "Director has the authority to explain the meaning of the text of the Land Use Code but he does not have the authority to construe the effect that such meaning may have in a particular case." In fact, the Director is granted the jurisdiction to apply the Land Use Code to development applications — cases. Section 26.210 of the City's Land Use Code enables the Director, among other duties, "to render interpretations of this Title [the Land Use Code] or the official zone district map pursuant to Chapter 26.306." This Section also requires the Director "to enforce any provision of this Title [the Land Use Code] or any other provision of the Municipal Code of the City of Aspen." Staff believes, based on the language in the code that the Director, among other duties, is required to interpret the Land Use Code and apply it's meaning to particular cases. Furthermore, applying the Land Use Code to individual cases is the primary administrative duty of the Department — this is what the Community Development Department is required to do everyday. In this particular case, the decision as to which lot line to describe as the Front Lot Line was made by the property owner in accordance with the code. The Director accepted this decision, as it is clear in the code that the property owner has this right and there are no other controlling regulations. RECOMMENDATION: Staff believes the Director's administrative decision was rendered correctly and that the Director's jurisdiction was not exceeded. Staff recommends the Board of Adjustment uphold the Director's administrative decision by not adopting Resolution No. 4, Series of 2005. NOTE: Staff has prepared a Resolution finding in favor of the appellant and reversing the Director's decision. The motion should be made in the affirmative — to adopt the resolution. If the motion passes, the resolution is adopted and the Director's decision is overturned. If the motion fails, the resolution shall be considered not adopted, and the Director's decision is upheld. PA RECOMMENDED MOTION: "I move to approve Resolution No. 4, Series of 2005." ATTACHMENTS: Proposed Resolution No. 4, Series of 2005. Exhibit I — June 14 request for appeal letter from Joseph E. Edwards representing Rufuss Crocket, owner of Lot 13, Block 3, Aspen Grove Subdivision, with attachments lettered A through E and hand -noted code sections. Exhibit II — September 12 letter from Herb Klein representing Warren Maple, LLC, and David Maple, LLC, owners of Lot 1, Block 3, Aspen Grove Subdivision. Exhibit III — September 15, 2005, letter from Herb Klein representing Warren Maple, LLC, and David Maple, LLC, owners of Lot 1, Block 3, Aspen Grove Subdivision. 3 RESOLUTION NO.4, (SERIES OF 2005) A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT APPROVING AN APPEAL OF AN ADMINISTRATIVE DECISION REGARDING LOT 1, BLOCK 3, ASPEN GROVE SUBDIVISION. WHEREAS, the Community Development Director received a request for an appeal of Administrative Decision regarding the manner in which setbacks are to be measured on a parcel of land known as Lot 1, Block 3, Aspen Grove Subdivision, from Rufuss Crocket of Aspen (appellant), represented by Joseph E. Edwards; and, WHEREAS, the Appellant believes the Director exceeded his jurisdiction in making an administrative decision; and, WHEREAS, the Board of Adjustment, pursuant to Chapter 26.216, is authorized to hear appeals of administrative decisions and may reverse or modify upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the decision; and, WHEREAS, the Board of Adjustment has taken and considered public comments at a duly noticed public hearing and has found that the Director exceeded his jurisdiction in rendering the decision. NOW, THEREFORE BE IT RESOLVED that the City of Aspen Board of Adjustment approves the appeal of the Community Development Director's administrative decision regarding the manner in which setbacks shall be measured on Lot 1, Block 3, Aspen Grove Subdivision and reverses the decision as follows: Section 1 The required Front Yard setback of Lot 1, Block 3, Aspen Grove Subdivision, shall be measured from all portions of the McSkimming Road right-of-way. Section 2• This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3• If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. COA BOA Resolution No. 4, Series of 2005. Page 1 • • INTRODUCED, READ, AND APPROVED by the Aspen Board of Adjustment at its regular meeting on , 2005. Chairperson ATTEST: I, the undersigned duly appointed and acting Deputy City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the Board of Adjustment of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Deputy City Clerk APPROVED AS TO FORM: Assistant City Attorney C:\home\Current Planning\Interps\McSkimming appeal Reso-B.doc COA BOA Resolution No. 4, Series of 2005. Page 2 Jul 07 2005 3:47PM 0orney at Law V0-963-2111 p.4 JOSEPH E. EDWARDS, JR. e-mail: joeedwardsasopris.net June 14, 2005 Chris Bendon LAW OFFICE JOSEPH E. EDWA"S, P.C. 14 FENDER LANE CARBONDALE, COLORADO 81623 TELEPHONE (970) 963-21 11 FACSIMILE (970) 963-211 1 Community Development Director Aspen Community Development 130 South Galena Aspen, CO 81611 Re: Lot 1, Block 3 Aspen Grove Subdivision Dear Mr. Bendon, Rufus Crockett, as the owner of Lot 13, Block 3, Aspen Grove Subdivision, as an affected neighbor, would like to appeal the administrative interpretation that the front yard of Lotl, Block 3, Aspen Grove Subdivision, is only the narrow tip of land on such lot at the apex of the switchback of the public road. The grounds for the appeal are : 1. The Community Development Director has exceeded his jurisdiction. Section 26.306.010 A, grants the director " the authority to make all interpretations of the text of this Title.." The dictionary definition of "interpretation" is "to explain the meaning of ; to make clear", Webster's New World Dictionary. The Blacks Law Dictionary, after defining "interpretation" as the process of discovering the meaning of a written document, goes on to distinguish the difference between interpretation and construing written documents as follows: Interpretation and construction of written instruments are not the same. A rule of construction is one which either governs the effect ofan ascertained intention,..., while a rule ofinterpretation is one which governs the ascertainment of the meaning of the maker of the instrument. (See Exhibit A Therefore the director has authority to explain the meaning of the text of the Land Use Code, but he does not have authority to construe the effect that such meaning may have in a particular case. An interpretation of text becomes necessary if the text is ambiguous or otherwise unclear. However, if code language is clear and unambiguous there is no need or justification for any further interpretation. The code in Section 26.104,100 defines a Front Lot Line as "the line closest to and/or dividing a lot from a street or street right -of way." That definition is clear and unambiguous. In this Jul 07 2005 3:47PM V orney at Law W-963-2111 P.5 instance the Front Lot Line is the curved line of Lot 1 adjacent to and dividing Lot 1 from a switchback curve of McSkimining Road. Many lots have curved front lot lines that follow curved streets. The curves in this instance are more extensive than usual as the Lot is adjacent a road switchback on a steep hill, but that does not justify ignoring or changing the clear definition of the Front Lot Line. The 30 foot front yard setback requirement for the R-15B cone makes the narrow southerly finger extension of the lot into the area between the switch back of the road unbuild able, which was obviously the intent in the original design of the subdivision, as it is a narrow and inappropriate place to build a house. What the applicant requested in the present case was that only the extreme southerly portion of the lot adjacent the hairpin turn be designated as the front yard and a Front Lot Line and that the balance of the lot line "closest to and dividing the lot from a street" be designated as side yards. In this instance a supposed "interpretation" is sought, the true purpose of which is to avoid the application of the clear code restriction against building in a front yard as defined by the code text. The director granted applicant's request to designate only a portion of the Front Lot Line as such, and designated the remainder of the Front Lot Line of the Lot as Side Yard Lines. However, that action by the Community Development Director exceeded his authority. Such determination was not an interpretation explaining the meaning of the text of the code. Such determination exceeded the director's authority and was construing the effect or application of the text as applied to this particular lot and in effect ignoring or avoiding the clear and unambiguous meaning of the text. There is no authority in the code for the community development director to determine that the clear and unambiguous definition of a Front Lot Line shall only apply to a very small part of "the line closest to and dividing a lot from a street." That is not an interpretation or explanation of the meaning of the "text" of the code, that is an evasion or modification of the text of the code. 2. As noted above there is no authority in the code for the Community Development Director to modify the effect of the text definitions on an individual lot, or to construe the effect of the definition of a Front Lot Line on a Lot to define a different front yard than is created by such text definition. Even if he had such authority, the tiny defined front yard created in this instance ( ie the first 30 feet from the hairpin turn) is an abuse of any such discretion, and directly contrary to the code text definition of Front Lot Line and Front Yard. As noted above a Front Lot Line as defined in the code text is the line closest to and dividing a lot from a street. The obvious intent of a front yard setback is to move a residence back away from the street for the safety of future occupants and to separate traffic noise, pollution and disturbances from the residence. In this case the Front Lot Line which divides the Lot from the street begins at the extreme east side of the Lot and wraps around the hairpin turn at the south end and continues to the extreme west side of the Lot. All of that line divides the Lot from the street and is by text definition the Front Lot Line. The Front Yard is defined in Section 26.104.100 as "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." Therefore the front yard is an area from the west side of the Lot to the east side extending thirty feet back from the curved Front Lot Line around the curve and is not to be built upon. The very small front yard of only thirty feet back from just the southerly hairpin turn of the road is contrary to the text definition of Front Yard (it does not extend the full width of the lot) and contrary to the text definition of Front Lot Line ( it is only a small part of the line dividing a lot from a street) and is an abuse of discretion, even if the director had such discretion, which, as noted above, he does not. Jul 07 2005 3:48PM 0orney at Law I-963-2111 p.6 3. The applicant, in support of a pending variance request and the request for the code text "interpretation", has asserted that the northerly portion of the property is constrained by two easements and that applicant cannot build a residence on the north end of the lot away from the street where it was obviously intended to be built at the time of subdivision.. There is an underground easement for a city pump station shown on the plat recorded at ditch Book 2A Page 291, Reception No. 116127, but there is approximately 3500 square feet of lot area north of such easement upon which a residence could be constructed. [See Exhibit B]. Applicant also asserts, and included on his map [See Exhibit C] an easement for "future utility rights reserved to the adjacent property" that would further constrain a building envelope in the north portion of the lot, but no evidence of such future utility rights was provided. The deed to the applicant makes no mention of any easement for future utility rights [See Exhibit D] and a current review of the title shows there is no document of record reflecting any easement for future utility rights. [See Exhibit El. Further the adjacent property in question is also owned by the principals of applicant and any such future utility rights, if they exist, could be vacated or relocated by applicants themselves. It is also unclear why there is any need for future utilities for the adjacent parcel, as it has been fully served by all utilities for years. However even assuming the"future utility rights" exist and is a constraint, there is still an area of approximately 1800 to 2000 square feet that could be used as a building site for a residence on the north end of the lot. It appears that the applicants do not want to build on the north end of Lot 1 as it may affect the privacy of the residence on the adjacent parcel which the principals of applicant also own. Therefore the applicant sought a variance from the front yard setback so that they could construct a residence on the narrow strip of land between the switchback of the road and displace the development impacts on the other neighbors instead of -their adjacent residence. That variance application was unanimously opposed by all neighbors, so the variance hearing was continued while the applicant sought an alternative way to accomplish their goal and avoid the neighborhood opposition. That alternative was to request the community development director "interpret" that the definition of Front Lot Line" should only apply to a very small portion of what is really the defined Front Yard Line. The applicant can make reasonable use of Lot 1 without the need for a variance from or interpretation of the code. Very truly yours, Joseph E. Edwards P.C. By: Jos ph wards Jr. Attom or appellant Rufus Crockett, Owner of Lot 13, Block 3, Aspen Grove P.O. Box 3837, Aspen, CO 81611. Jul 07 2005 3:48PM orney at Law 6- SG3-2111 p.7 Extensive interpretation (interpretatio exten- siva, called, also, "liberal interpretation") adopts a more comprehensive signification of th Lieb. Herm. 58. e word. Extravagant interpretation (irlterpt eta#{o. cederh s) is that which substitutes a meaning evi. dently beyond the true one. It is therefore not genuine interpretation. Lieb. Herm_ 59. Free or unrestr{oted interpretation Unterpreta- tio soluta) proceeds simply on the general prin- INTERROGATORIES. clples of Inter pretat(o❑ good faith, not bound questions drawn u fc by any specific or superior principle. Lieb. Herm. pounded to a 59, witness who Limited or restricted interpretation ({+tterpre a series of f ratio limitata) is when we are influenced by other judicial ex > eviden under a strong bias of mind, make, servient to his preconceived vie,0 This includes artful interpretation, wafer,) by which the Interpreter se meaning to the text other than the to have been intended. Ldeb, Heim It is sald to be either "legal," whit same authority as the law itself, c which rests upon its intrinsic reason gal interpretation may be either "aut it is -expressly provided by the legi,4 ual," when it is derived from unwrj Doctrinal interpretation may turn on of words and sentences, when it is matical," or on the intention of t when It is described as "logical." Wi terpretation stretches the words of cover its obvious meaning, it Is tailed When, on the other hand, it avoid; meaning to the words, in order not.1 the intention of the legislator, it is ca tive." HOU. Jur. 344. As to strict afld Ziberal interpretat struction. In the civil lauthentic is that given by thelegislator hilnsc obligatorA. on 'the courts. Custontart tion (also called "usual") is that v from successive or concurrent deeis 'court on the same subject -matter, ha to the spirit of the law, jurisprudei and equity; as distinguished from "at terpretation, which is that given by tl' himself. Houston v. Robertson, 2 T INTERPRETATION CLAUSE_ A st statute which defines the meaning, words occurring frequently in the oth INTERPRETER.. A person sworn at interpret the evidence of. a foreigner and dumb person to the court. Amory 5 Mass. 226; People v. Lem Deo, 132 P. 266. 954 2 -- "NTMPRETATIO — INT]MROGATORIES INTERPRETATIO CHARTARUM BENIGNE FA- CIENDA EST, UT RES MAGIS VALEAT UAM pri CI I rJ than the strictly herr. PEREAT. The interpretation of deeds Is to be Lieb. HerA1. 60. 2tberal, that the thing may rather have effect than edesttned interpretation (inte fall Broom, Max 543. destinata) takes place if th INTERPRETATIO FIENDA EST UT RFS IS VALEAT QUAM PEREAT. Jenk. Cent 198. Such an interpretation is to be adopted that the tag may rather stand than fail. INTERPRETATIO TALIS IN AAIErGUIS SUM_ PER 1E'IENDA EST UT EVITi, TUR UgCONVEN- IENS ET AUSURDUM. In cases of ambiguity, such an interpretation should always be made that -what is inconvenient and absurd may be avoided. 4Inst. 328. INTERPRETATION. The art or process of dis- covering and expounding the meaning of a stat- ute, will, contract, or other written document. People v. Com'rs of Taxes, 95 N.Y. 559; Rome v. Knox, 14 How. Prac., N.Y., 272; Ming v, Pratt 22 Mont. 262, 56 P. 279; Tallman V. Tallman, 3 Misc. 465, 23 N,Y.S. 734; Roberts v. Portland Wa- ter Dist., 124 Me. 63. 126 A. 162, 163; Cohn -Hall - Marx Co. v. Vanosdan, 25 Ohio App. 360, 157 N.E. 908, 909. The discovery and representation of the true meaning of any signs used to convey ideas. Lieb. Herm. "Construction" Is a term of wider scope than "Interpre- tation;" for, -I le the latter Is concerned only with ascer- taining the sense and meaning of the subject -matter, Me may ay also he directed to explaining the legal effects and consequences of the Instrument In question_ Hence interpretation precedes construction, but stops at the writ. ten text Interpretation and construction of written instruments are not the same. A rule of constructl'pn is one w rich either governs the effect of an ascertalned Intention, or Pointe out what the court should do in the absence of express or Implied Intention, while a rule of interpretation In. one which governs the ascertainment of the meaning of the maker of the Instrument. In re Union Trust co., 151 N.Y.S. 246, 249, 89 Mlso. 69, Close interpretation (interpretatio restricta) is adopted U just reasons, connected with the for- mation and character of the text, Induce us to take the words in their narrowest meaning. This species of interpretation has generally been called "literal" but the term Is inadlasible. Lleb. Herm. 54. INTERREGNUw. An interval betw, The period which elapses between the suvereign and the election of another cancy wh_tch occurs when there is no.:g INTE-RHOGATOME- In French 1 Which contains the interrogatories In Judge to the person accused, on the f are the object of the accusation, and t of the accused. Poth. Proc. Crim. c. 4. A set or series EXHIBIT A. Jul 07 2005 3:49PM orney at Law-963-2111 P.8 ! no 5S: l � ai Q zi'k x 7-1 o ! ti ;tf ti`''� �,•' "t rr ,�:!' �"�i rc�r��a� �`q�'!w h �' � t i � i tv eye Z s• � A ye tO a � 0 Otj La 4 F °�i � � • � � "E z ' 6 EXHIBIT Jul 07 2005 3:50PM *orne�j at Law W-9G3-2111 P. 10 FROM Panasonic FAX SYSTEM OPEN ,.,,.:., ;..�' • t-T1' PAID NO. PHONE 110 Jul. 06 2005 01:07PM P2 �:ITY OF ASPEN 418�1� WRE1T PAID DATE REP NO. SPECIAL WARRANTY DEED THIS DEED, Made September 21, 2004 between THE JONES FAMILY PARTNERSHIP, LLLP of the County of ARAPAHOE and Slate of CC, of the first part, GRANTOR and WARREN MAPLE LL,C, A COLORADO LIMITED LIABILITY COMPANY AND DAVID MAPLE LLC, A COLORADO UMITED LIABILITY COMPANY whose legal address is: 565 So. Broadway, Suite 200, Denver, Co of the County of 80209 State of Go, of the second part, GRANTEE W ITNESSETH, That the said parties of the first part, for ar-4 in consideration of the sum of Ten dollars and other good and valuable oonslderatlons, to the said parties of the first part, in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed and by these presents do grant,. bargain, sell, convey and confirm unto the said parties of the second part, its successors and assigns forever, alf•the following described lots or parcel of land, situate, lying and being in the County of QITKIN and State of COLORADO, to wit:, LOT 1, BLOCK 3, ASPEN GROVE SUBDIVISION, accordin 9 to thO. Plat thereof recorded in Ditch. Book ZA at Page 291, Together with all and singular the heredttaments and appurtenances there -unto belonging, or In anywise appertaining, and the reversion and reversions, rerriainder.and remainders, rents, Issues and profits thereof: and all the estate, right, title, interest, claim and demand whatsoever; of the said parties of the first part, either in law or equity, of, in and to. the above bargained premises, with'the hereditaments and appurtenances; TO HAVE AND TO HOIb the said pre�irmises' above bargained and described; with the appurtenances, unto the said parties of iris second pert, its successors and absigne forever. And the Bald parties of the first pert for theinvehees, their heirs and assigns do covenant, grant, bargaln and agree to and with the said parties of the second parl, their successors and assigns, the above bargained premises In.the quiet and peaceable possession of said parties of the second part, Its successors and essigns, against all and every person or persons (awfully cir3lming or to claim the whole or any part thereof, by through or under the said parties of tho first part to WARRANT AND FOREVER DEFEND. The singular shall include the plural, the plural the singular, and tha use of gender shall be applicable to all genders. IN WITNESS WHEREOF, the said parties of the first part have hereunto sat their hands) and seal(s). 502180 TRAlISIER DECLARATION RECEIVED 09121/2N4 SIGNATURES ON PAGE 2 111i� 111111jJ111 fill 5��,e01211�l 1111111122 :1 t i 6lLVIO nAVIS PrTKIM COUNTY Co R 11.06 D 56.67 INIMTO F � E�l1JNIbWU INr— WNWAW04 Co �� EXHIBIT ma j P Jul 07 2005 3:50PM 4orne�j at Law it- 963-2111 P.11 FROM Panasonic FAX SYSTEM PHONE IJO. : Jul. 06 2005 01:07PM P3 e9/21/ze94 e2:111 SILVIA ORVIS PITK1N COUNTY CO R II.as D 86.67 PAGE 2 TO SPECIAL WARRANTY DEED SIGNATURE PAGE THE JONES FAMILY PARTNERSHIP, LLLP Olivia Jones Jeet Ok r r Trustees of the Olivia Janes Revocable Trust u/a(d Dece r 24, 2003, General Partner STATE OF tOQOS�O ) ss COUNTY OF The -foregoing instrument was acknowledged before me this 17z;ft day of d 200Y By: THE JONES FAMILY PARTNERSHIP, LLLP, By: Olivia Jones and Jeffrey Badw, Trustees of the Olivia Jones Revocable Trust u/ald December 24, 2003, General Partner, WITNESS my hand and official seal Notary Public my commission. expires: PCT1885 PAItAEU► 8. ; DuFAilLT :o . Jul 07 2005 3:50PM orne�j at Law-963-2111 p.12 FPOM Panasonic FAX SYSTEM PHONE hD. Jul. (fib 2 O5 01:68PM P4 -ET SCHEDULE B SECTION 2 L ()r- + �� EXCEMONS 1 > co a The policy or policies to be issued will contain exceptions to the following unless the some are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the dale the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. Reservations and exceptions as contained in United States Patent recorded January 17, 1949 in Book 175 at Page 243. 8. Those terms, conditions, provisions, obligations, easements, restrictions, assessments and all matters as set forth in Protective Covenants for Aspen 9rove'SubdMsion recorded August 14, 1958 In Book 184 at. Page 479 (Block 1) and November 12, 1963 in.Book 204 at Page 568 (Block 3) and NotJce of Declaration recorded November 29, 1989 in Book $08 at Page 646, deleting therefrom any restrictions indicating any prefehance, limitation or discrimination based pn reoe, color, religion, sex, handicap, familial status,.or National origin. 9. Easements, disclosed on Plats„of subject property.recorded in Dhch.':kb 3kc;;, :' ' ' 2A at Page 246 and Ditch Book 2A at Page 291. 10. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 26, Series of 1987 by City of Aspen recorded July 22, 1987 in Back 541: at,Page 979 and Ordinance No. 28, Series of 1987 recorded Octoher 1, 1987 In Book 547 at Page 191. EXHIBIT Jun 14 2005 9:02PN At�rney at Law 97C-9E3-2111 p.5 • Chapter 26.316 APPEALS sections; 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26,316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Board of Adjustment, Growth Management Commission, the Planning and Zoning Commission, and City Council to hear and decide certain appeals and to set forth the pmxedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002) 26.316.020 Authority. A. Board of Adjustment. The Board of Ad;;ustment shall have the authority to hear and decide the following appeals: 1. Any decision or determination made by an administrative official unless otherwise specifically stated in this title. 2. The denial of a variance pursuantto Chapter 26.314 by the Planning, and Zoning Commission or Historic Preservation Commission. B. City Council. The City Council shall have the authority to hear and decide the following appeals: 1. An interpretation to the text of this title or the boundaries of the zone district map by the Community Development Director in accordance with Chapter 26.306. An appeal of this nature shall be a public meeting. 2. Any action by the Historic Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H,", Historic Overlay District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting. 3. The scoring determination or allocations of the Growth Management Commission pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 4. Any other appeal for which specific authority is not granted to another board or commission as established by this title. An appeal of this nature shall be a public meeting. <l ; C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the authority to hear and decide an appeal from an adverse determination by the Community UevelopmentDirector on an application for exemption pursuant to the groNNIh menagernent quota system in accordance with Section 26.470.060(D). (Ord. No. 17-2002 § 2 (part). 2002; Ord. No. 27-2002 § 23, 2002) 31 Jun 14 2005 3:03PN n 6rne�j at Law 970-963-2111 p.6 26.316.030 Appeal procedures. A. initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Di rector. The notice of appeal shall be filed with the Corrunmiity Development Director and with the cir., office or department rendering the decision or determination within fourteen (14) days of the date oftlie decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this title to appeal any decision or determination. B. Effect of filing an appeai. The filing of notice of appeal shall stay any proceedings in furtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision -making body authorized to hear the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision making body with authority to hear the appeal may review such certification and grant or deny a stay of the proceedings. C. Tirning of appeal. The decision -making body authorized to hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as scion thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.060(E)). E. Standard of review. Unless otherwise specifically stated in this title, the decision -making body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall he not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. F. Action by the decision -making body hearing the appeal. The decision -making body hearing the appeal may reverse, affirm, or modify the decision ordetcrmination appealed from, and, if the decision is modified, shall be deerned to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by written resolution. All appeals shall be public meetings. (Ord. No. 55-2000, §§ 41 5; Ord. No. 27-2002 § 24, 2002) 32 Jun 14 2005 9:05PN ntrney at Law 970J;3-2111 p.7 Chapter,26.306 INTERPRETATIONS OF TITLE Sections: 26.306.010interpretation. �Sv 26306.010 Interpretation. Lj A. Authority. The Communit, Deg elopment Director shall have the authority to make all interpretations of the text oftbi ,Title �n 'tithe boundaries of the zone istrc _map. p. B. Initiation, An interpretation maybe requested by any affected person, any resident or real property owner in the City of Aspen, or any person having a contractual interest in real property in the City - Aspen. C. Procedures. 1. Submission of request for interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interpretation shall be submitted to the Community Development Director. 2. Determination of completeness, Within fifteen (15) days after a request for interpretation has been received, the Community Development Director shall determine whether the request is complete. If the Community Development DL-ector determines the request is not complete, he shall serve a written notice on the applicant Specifying the deficiencies. T1te Community Development Director shall take no further action on the request for interpretation until the deficiencies are remedied_ 3. Rendering of interpretation. After the request for interpretation has been determined complete, the Community Development Director shall render an in g �;Q� within fifteen (,15; days. The Communit} Development Director may consult with the City Aaorney and review this Title and the zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretation shall be in writing and shall be sent to the applicant by certi6cd mail. E. Official record. The Community Development Director shall maintain an official record of all interpretations in the Community De%;elopment Department, which shall be available for public inspection during normal business hours. F. Appeal. Any person who has made a request fjrr„g7etatipn may appeal the interpretation ofthe Community Development birector to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. 16 Jun 14 2005 9:06PM nt-.orney at Law 970-903-2111 p.B K. Written or in tivritina. Tine term "written" or "in wriGnlL" shall be construed to include any in- scribed representation of words, letters or figures, whether by printing or otherwise. L. Year. The word "year" shall mean a calendar vear. M. Boundaries. Inte retatio .s r�ardi�_�gr��iistricrho�d�ries shall be made in accordance with the follcvvine: 1. Boundaries shown as perpendicular to or following, or approximateLy following, any street, alley, right-of-way or water course shall be construed as perpendicular to or following the centerline of the street., a?ley, right-of-way or water course. 2. Bcundaries shown as following, or approximately ;:allowing, any platted lot line or other prop- erty line shall he construed as following such line. 3. Boundaries shown as followhig, or approximately following, section limes, half -section lines, or quarter -section lines shall be construed as following such lines. 4. Boundaries shown as separated from and parallel, or approximately parallel, to any of the tea- tures listed in the paragraphs above shall be construed to be parallel to such features and at such dis- tanue therefrom as are shown on the zone district map. 26.104.090 Reserved. 7 26.104.100 Definitions. As use to rs code, unless the context otherwise requires, the following terms shall be defined as follows: c � Academic Uses: The use of land or buildings for educational activities with attendant research, r housing, administration, and public venues. Academic Uses may include public or private school, uni-versity, teaching hospital, research facility, testing laboratory, library, auditorium, administrative of- fices, faculty housing, student housing, or similar uses. 6,1 Accessory Dwelling Unit (ADU). A deed restricted dlveiline unit attached to or detached frum a principal. residence situated on the same lot or parcel, and which meets the occupancy, dimensional and other requirements set forth in Section 26.51-0 of this Title, and requirenents set forth in the As- penll'itkIn Count}, Housing Guidelines. Accessory structure or building. A building or other structure that is supportive, secondary and subordinate in use and.!or size to the principal building or structure on the same parcel or lot. (See, Chapter 26,575.140, Supplrmertary Regulations -- Accessory uses and accessory structures). 11 Jun 14 2005 9:08PN Ajorney at Law 970 3-2111 p.9 Linked pavilion. An enclosed walk -,way connecting aprimary structure to an accessory structure. (See Supplementary Regulations --section. 26.575.020(A)(8), Linked Pavilion). Lodge. Sarre as hotel. Loggia. A deck, or porch attached Loa living space and open on at least one side developed under a roof as an integral part of the building's mass rather than as an appended clement. Leo. An artistic portrayal or decorative pattern printed or otherwise placed on an exterior wall, window sign or other exterior surface which may be viewed from outside the premises upon which it has been placed and which is used ur displaved to identify, advertise or promote the premises, a person, business, service, organization or product. Long term. The occupancy of a dwelling unit for residential purposes for a time period not less than six (6) consecutive months and shall inchide rental occupancies, except that two (2) shorter rental occupancies may be allowed per dwelling unit per year. Lot. A defined individual area or unit of land resultinu from subdivision and reflected on a re- corded plat approved by the city: or if created and recorded prior to the adoption by the city of subdivi- sion regulations, orprior to its annexation into the city, a unit or area of land designated by a separate and distinct number or letter which is illustrated on a plat recorded in the office of the Clerk and Re- corder for Pitkin County, Lot area. The total horizontal area contained within the lot lines of a lot, or other parcel of land. (See, Supplementary Regulations - Section 26.575.020, Calculations and Measurements). Lot depth. The short_st horizontal distance between the front and rear lot iines. Lott line, front. The line normally closest to and/or dividing a lot from a street or street right-of- way. Lot tine, rear. The lot line opposite the front lot line. S J ' S Or& c, or i cs ,o Ry"'T Lot line, side. The lot lines other than front or rear lot lines. ) 1 �`c N 95 �s c J� Lot width. The horizontal distance between the side lot lines as measured along the ftOTt yard �L1 setback line. Manufactured home. A single family dwelling unit which is partially or entirely manufactured in a factory, or at some location other than the site of final construction and ins-allation. A manufactured home is installed on an engineered, permanent foundation and has brick wood, or cosmetically equiva- lent siding and a pitched roof. A manufactured home is certified to the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5401, et seq., as amended. 21 Jun 14 2005 9:09PM Rt"orney at Law 970963-2111 p.10 .(Ord. No. 55-2000, § 5; Ord. No. 1 2002 § 16, 2002; Ord. No. 23-2004, §3; Ord. No. 5, 2005, §2) 26.575.040 Yards. The following supplemental. regulations shall apply to all yards. A. Projections Tnto Required Yards. Yards shall be unobstructed from the ground to the sky ex- cept for the following allowed projections: 1. Building eaves —Eighteen (18) inches; 2. Architectural projections-- Eighteen (18) inches; 3 Balconies not utilized as an exterior passageway; may extend the lesser of one-third of the way between the required setback and the property line or four (4) feet. 4. Fire escapes required by the Uniform Building Code —Four (4) feet; 5. Uncovered porches, slabs, patios, walks, retaining walls, steps and similar structures, which da no, exceed thirty (30) inches above or below natural grade, shall be permitted to project into the yarmi without restriction. Projections may exceed thirty (30) inches below grade if deter- mined to be required by the chief building official for window egress. 6. Fences, hedges, berms and walls less than six (6) feet in height, as measured from natural grade, are permitted in all required yard setbacks. (See, Supplementary Regulations - Section 26.575.050, Fences.). 7. Driveways Driveway axes shall not exceed a depth or height greater than twenty-four (24) inches above or below grade within the required front yard setback. Within all other required setbacks, driveway access shall not exceed a depth or height greater than thirty (30) inches above or below grade. Parking is only permitted within required setbacks if it is in an approved driveway or other area approved for parking. 8. Exterior merchandizing. Exterior merchandizine in non-residential zone districts shall be prohibited in all required yard set backs. B. Required Yards Adjacent to Private Roads. All required yard setbacks under zone district regulations are based on distance measured from the right-of-way line of a dedicated public way. Where there is no public dedication and the lot iine extends to the centerline of the right-of-way, the required yard setback shall equal -the distance specified under zone district regulations, plus an additional distance equal to one-half (.1/2) of the right-of-way width as if such private way were dedicated for public use. 67 Jun 14 1-005 9:11PH R�rney at Law 97G�3-2111 p.11 C. Corner Lots. On a lot bordered on t o (2) sides by intersecting streets, the owner shall have a choice as to which yard shall be considered as the frout yard, such yard to meet minimum setbacks for a trout yard in that zone district. The remaining yard bordering a street may be reduced by one- third (1/3) of the required front yard setback distance for the zone d.istricL. The rear yard must coin- cide with the rear alignment of neighboring lots regardless of which yard is considered the front yard by the owner. D, Transitional Yards. Where two (2) lots which share a common side lot line are in different zone districts, the lot in the more intensive zone district shall observe the required yard setback dis- tance as established for the less intensive use 7nne district. E. Non -Aligned Lets. For any lot in the R-6 zone district in excess of nine thousand (9,000) square feet which is not aligned along the traditional Aspen Townsite lot lines. the building inspec- tor shall measure the side yards from the two (2) shortest sides of the lot which are opposite from each other and the front and rear yards from the two (2) longest sides of the lot which are opposite from each other. 26.575.045 Junto Yard and Service Yards. Junk yards (sec definition, Section 25.104.100) shall be screened from the view of other lots, structures, uses and rights -of -way. Sen ice yards (See definition, Section 26.104.100) shall be fenced so as not to oe visible frunr the street, and such fences shall be a minimum six (b) feet high from grade. Ail fences shall be of Sound construction and shall have not more than ten 00) percent open area 26.575.050 Fences. Fences shall be permitted in every zone district provided that no fence shall exceed six (6) feet above natural grade or as otherwise regulated by the Residential Design Standards (see Chapter 26.410). Fences visible from the publicright-of-way shall be constructed of wood, stone, wrought iron or masonry. On turner lots, no fence, retaining wall, or similar object shall be erected or main- tained which ubstructs the tragic vision, nor on corner lots shall any fence, retaining wall. or simi- lar obstruction be erected or maintained which exceeds a height of forty-two (42) inches, measured from street grade, within thirty (30) feet from the paved or unpaved roadway. Plans showing pro- posed construction, material, location and height shall be presented to the building inspector before a building permit for a fence is issued. Additionally, foliage shall be placed and maintained so that it will not obstruct vehicular -� isibility at intersections. 'Ord. No. 55-2000, § 16) 26.575.060 Utility(Frash/Recycle Service Areas. A. General. The foilowing pro%isions shall apply to all utility/trash service areas: 1. If the property adjoins an allerNay, the utilityitrash/recycle service area shall be along and accessed from rite allelr+vay. Unless entsely located on an alleyway, all utility/trash service areas shall be fenced so as not to be visible front the street, and such fences shall be six (6) feet high from grade. All fences shall be of sound construction and shall be no less than 90',o opaque. 68 Jun 14 2005 9:12PM nttorney at Law 97Q-9E3-2111 p.12 • Chapter 26.314 VARIANCES Sections: 26,314.01 U Purposes. 26.314.020 Authority. 26.314.030 Authorized variances. 26.314,040 Standards applicable to variances. 26.314.050 Procedure for variance approval. 26.314.060 Conditions. 26.314.070 Expiration. 26.314,080 Appeals. 26.314.010 Purposes. Variances are deviations from the terms of this Title which would not be contrary to the public interest when, owing to special circumstances or conditions, the literal enforcement of the provisions of this Title would result in undue and unnecessary hardship. Variances shall only be granted in accordance with the terms of this Chapter. 26314.020 Authority. The Board of Adjustment, ir, accordance with the procedures, standards and limitations of this Chapter shall approve, approve with conditions, or disapprove a development application for variancxs to the terms of this Title. If the application for a variance is part of a consolidated application process authorized by the Community Development Director pursuant to Section 26.304.060(13)(1), the Planning and Zoning Commission, or the Historic Preservation Commission may review the application for a variance usit,g the standards and procedures set forth in this Chapter. 26.314.030 Authorized variances. Variances may only be granted from the following requirements of this Title 26: A. Dimensional requirements. B. Permitted uses, but only to allow for the temporary ot3=site location or storage of materials, structures or equipment pursuant to building construction or construction staging. 26314.040 Standards applicable to variances. A. In order to authorize a variance from the dimensional requirements of Title 26, the appropriate decision making body shall make a finding that the fcUowing throe (3) circumstances exist: 1. The grant of variance will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Community Plan and this Title; 28 Jun 14 2005 9:13PM n*rned at Law S70-93-2111 p.13 2. The grant of variance is the minimum variance that will make possible the reasonable use of the parcel, building or structure; and 3. Literal interpretation and enforcement of the terms and provisions of this Title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district, and would cause the applicant unnecessary hardship or practical difficulty. In determining whether an applicant's rights would be depriS`Cd, the board shall consider whether either of the following conditions apply; a. The-e are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures or buildings in the same zone district and which do not result from the actions of the applicant., or h. Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Community Plan and the terms of this Title to other parcels, buildings, or structures, in the sa.m� 7.011e district. B. In order to authorize a variance from the permitted uses of Title 26, the appropriate decision making body shall make a finding that all of the following circumstances exist: 1. Notice by publication, mailing and posting of the proposed variance has been provided to surrounding property owners in accordance with section 26.304.060(E)(3)(a)--(c). 2. A variance is the only reasonable method by which to afford the applicant relief and to deny a variance would cause the applicant unnecessary hardship or practical difficulty. 3. The temporary off -site storage or constriction staging can be undertaken in such a manner so as to minimize disruption, if any, of normal neighborhood activities surrounding the subject parcel. 4. If ownership of die off -site parcel subject to the proposed variance is not vested in the applicant, then verified written authorization of the parcel's owner must be provided. 5. Adequate prevision is made to restore the subject parcel to its original condition, upon expiration of the variance, including the posting of such financial security as deemed appropriate and necessary by the appropriate decision making body to insure such restoration. (Ord. No. 27-2002 § 7, 2002) 26.314.050 Procedure for variance approval. A. Initiation. A development application for a variance maybe initiated by over fifty (50) percent of the owners of the real property for which the variance is proposed, B. Determination of completeness and review by the planning director. A development application for a variance shall be initiated by the submission of a cevelopment application to the Community DevelopmentDirector in a form established for such purposes. The Community Development D irector 29 Jun 14 2005 9: 15Pt1 n4rne�j at Law 970-963-2111 p.14 shaft review the application and determine its completeness and shall refer written comments to the appropriate decision making body, C. Steps Required. One step is required to review an application for a variance: A public hearing before the appropriate decision making body. 'Notice requirements: Publication, mailing and posting (See section 26.304.060(F)(3)(a)--(c)). D. Decision -making body action. At the conclusion of public hearing, the appropriate decision making body shnil determine if the application meets the standards of this chapter, and shall issue a resolution to approve, approve with conditions, or disapprove the application fur a variance. (Ord. No, 27-2002 § 3, 2002) 26.314.060 Conditions. The Director of the Community Development Denarunent may recommend and the appropriate decision making body may impose, such conditions on variances as are necessary to ac.c;omplish the goals, objectives and policies of the [Aspen Area Community Plan and the terms of this title. All variances granted so as to permit the temporary off -site stora.-e of materials, structures or equipment pursuant to building construction or construction staging shall commence and terminate on elates certain as established by the appropriate decision making body and shall not relieve an applicant from obtaining all necessary building permits. 26.314.0?0 Expiration. A. Rxpiration. Unless vested as part of a development plan pursuant to section 26.308.010, and except as otherwise established by the appropriate decision making body, a variance granted under this chapter shall automatically expire after twelve (12) months from the date of approval unless development has been commenced as illustrated by the issuance of a building permit. B. Extension. The appropriate decision making body may grant a onetime extension of a variance for up to nA,-elve (12) months. A I requests for an extension must be submitted prior to the expiration of the existing development order, must demonstrate good cause showing that an extension is necessary, and must demonstrate that the circumstances as set forth in this chapter are still applicable. 26.314.080 Appeals. An applicant may appeal an adverse determination by the Planning and Zoning Commission or Historic Preservation Commission on an application for a variance that is consolidated with other development applications to the Board of Adjustment. Such appca;s shall follow the general appeal procedures set forth in Chapter 26.316. 30 Jun 14 ^t]O� 3: 40P1t ry LaW - -'� I.. 07 4 f V wigs property right. The right to undeKaka Bad o=Vlcx the dcveloprr.W.. and cse of property undre the terms and conditions of a vita apecii 0 devoiop:nont plan. Verinary clinic; A facilitty aiaiutainvd by or for tethe use ofs iicented veterinarian in the cue and 4catmt nt of w1imals w'hcrcin ovcmight care is prohibited cxcapt when neeessa: i for modic al purposes. Wstereouras• A river, etsearn or water irtigatiou ditch. Whip antenna: A tlex.ib:e tod antenna supported on abase insulator. Wildlife resistant durnpster or trash enciwure. A device or 9trncture interided to store dernestic -eilrae andLmit anaose by r an -domestic snRriurials resting the requirements of Municipal Code Chap- �er 12.09 -Wildlife Protoctioa. Wireless telecommunication services faciliIles ondlor equIprJaent. Cellular ielephor►e, paging, oahanoed peeialized mobile radio (BSMR),personal comm�inication service: (PCS), conitmencitil tna- ':)ile radio oarvtce (CMRS), and other wireless oorncureiai telecommurlicatian devices and 0 associ- ated structures and eq%;ipment tnciudir4 transmitters, LutoAA49, monopoles, towers, manta and micro- wave dishes, cabinets and equiprnU" roorrs. This do Inition does not tspply to non-commercial sateilite dish ante.-mm, radio and televiaicn transrnitten and antennae incldental to residential use. A. "Ceilolar" moans an analog or digital wireless cornmunioatioa techwiogy that is based on a sys- �= of intarcoaniccvA neighboring sell slue, tech of which contains antenna. B,^t4jincedSpecializedMohleR,dio"(BSMR)rae4usadigitalwirelesscornrnunlcatJon"chnol- ogy that specislirea to providing dispatching services. C "Perstnzal Comnttiflieetioa 5ervicas" (PCS) tte»esna a digital wireless corrunuaicationiechnology -hat has the capacity for multiple cotfcmunications sotvicas and will provide a system in which calls will be routed to individuals rather than plao", ragard:eas d lacatim Working reaidene. A person as defined in too Affordable Housing Guidclinos. Yard. The Brounis gturouading a building on the aatrie lot or parcel which are unoccupied end uaobstructod above and below ground, except for trees and vcgc:ationi or Me Ottv"wisc perM1*d in this Title (See Sttpp�lemantary Regulations --aeotion 26.3'M040 Yu Yard, front, The yard extending the 1 wider lot or srool, thodcpth ofwbich is measured by the narrowest horizontal distance between the front lot live and the nearest aurface efthe principal ' 'ot:iidln$ 31 grads. ar rear. A yard extending the full width of a tot or parcel, the depth of which is measured at the narrowest horizontal distance bet rvconthe rear lot ;Ina and the nearest surtice of the print ipal b3ild- ins at grade. 23 Jun 14 2005 9:41PN fits rre"I at t_sw ...' • tiD i?�) �. )EAtit rVitr,v �'! GEvE.OFMET (Ord. No. 55.2000, 0 li; Ord. No. 1.2002 6 16, 2002; Ord. No. 23.2004, 03; Ord, No. 5, 2005, §2) 26.975.040 Yards. The following uuppkrr_errtal re. latiuru alra;l apply to all yards. A. Projections Into Required Yards. Yard$ shall be unobettvcted from the ground to the sky ex- cept for the following allowed projections: I. Building eaves••Bighteen (1$) inches'. 2. Architecturai prejcetiens-- Eighteen (1 B) in&w. 3 BAlconiee not utilized as an exterior passageway, nrray extend the lesser of ono -third of the way betwesn the required +setack and the property line or four (4) feet, 4. Fire cecapes required by the ilniforrn Bur ldurg erode --Four (4) feet; S. Uncovered porches, slabs, patios, walks, retaining walls, steps and similar strtrciures, which do not exceed thing (30) inches above or below natural grads, shall be parnmtted to project into the )�ard wittmt reatriction. projections may exceed thirty (3C) inches below grade if deter- mmod to be required by the chief building orneial for window egress. 6. Fences, hedged, berms and wally imtYan six (6) feet in height, m rmeburcd from natural grade, are permitted in all roquircd yard setbacks, (See, Supplemantary ltagulaticns - Section 26.575.050, Fences.). f,`. 7. Driveways Driveway access shall not t:xccod a depth or height greater that twenty-four ' (24) inches above or below grade ).itch the required front yard aetbaok. Within all other required setbacks, driveway acoeas shall not exceed a depth or height greater than thirty (30) inchm above or below gm". Parking is only permitted within required setbacks if it is in an approved driveway or other area approved for parking. 8. Exterior merchandizing. Exterior mcrohand'tzj" in non-residential zone districts shall bo prAiblted is all required yard set basks. B. Required Yards Macent to Private Mads. All required yard setbacks under zone district regulations arc based on distance ateaaund ham the ri too, -waY ).�� of asindi�ir�pkblic wey;_ Where there is no public dedlcatioh�the tot line eXt:nds to the centerliac of the right-of-way, the required yard setback shall equal the distance specified under zom tistrict regulations, plus an additional distance equal to oruG>�lL-W_gx wii¢,am If-6rmhpdUals way were dedicated for pubiiouse. 67 %% i s� Aspen Grove Lot 1, Block 3 SCHEMATIC Y 5DiE.S�0.IGN Site Plan l ©2005 w rCtYac'Xanriic, pA,_5 1 ROSSARCHITECTURE-PLANNING V n..n.n .•n nn�.0n� YY{iR KLEIN, COTE & EDWARDS, LLC ATTORNEYS AT LAW HERBERT S. KLEIN hsk@kcclaw.net LANCE R. COTE, PC- Irc@kcelaw.net kcelaw.net JOSEPH E. EDWARDS, III, PC jee@kcelaw.net EBEN P. CLARK epc kcelaw.net MADHU B. KRISHNAMURTI mbk@kcelaw.net ' also admitted in California September 12, 2005 Board of Adjustment City of Aspen Community Development Department 130 South Galena Aspen, CO 81611 Re: Lot 1, Block 3 Aspen Grove Subdivision To the Honorable Members of the Board: r::K �i be, � am 201 NORTH MILL STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSU IILE: (970) 925-3977 As you may know, our firm represents Warren Maple, LLC and David Maple, LLC, ("Applicants") as owners of the above referenced property located on McSkimming Road within the City of Aspen (the "Property"). This matter is an appeal to the Board of Adjustment (the "Board"), initiated by the owner of a parcel that is not adjacent to the Property, Mr. Rufus Crockett ("Appellant"). Mr. Crockett seeks to overturn an interpretation of the City of Aspen Municipal Code (the "Code") by the Director of Community Development, Mr. Chris Bendon (the "Director"). The purpose of this letter is to assist the Board in its review of the issues to be presented and to supply the Board with the Colorado law that governs the Board's decision. Background The Property is a long narrow lot located within a switchback turn on McSkimming Road. The southern lot line of the Property is within the elbow of the switchback and the northern end abuts another parcel. The broader, northern end of the Property is encumbered by two utility easements that prevent construction of the home on that end of the lot. Applicant initially believed the eastern, uphill lot line to be the "front" of the property. Were this true, a literal enforcement of the setbacks in the Code would result in a building envelope that is only ten (10) feet in width. After their initial application for a variance was continued, Applicants reexamined the definition of the Minimum Front, Side and Rear Yard Setback Requirements set forth in Section 26.710.070(D)(4), (5), and (6) of the Code, and requested an interpretation of these Sections by the Director, pursuant to Section 26.306.010 of the Code. After reviewing the Code and the Property, the Director determined that the southern lot line of the Property, within the switchback, was more properly considered the "front" of the lot. This decision is reflected in the Director's Zoning Interpretation dated effective June 10, 2005. Appellant now asks the Board to overturn this finding by the Director. Should the Board decide to reverse the decision of the Director, Applicants will ask that the Board reconsider and grant the previously requested variances to allow the construction of a single-family home on the Property. Board of Adjustment 0 • City of Aspen September 12, 2005 Page 2 The Current Appeal Applicants ask the Board to reverse a decision by the Director. Section 26.316.030(E) of the Code sets out the standard of review controlling the Board's decision. Section 26.316.030(E) states "A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion." This abuse of discretion review is similar to the review of any agency action by a Colorado court. Under Colorado law, the reviewing body is limited to a determination whether the officer has exceeded his jurisdiction or abused its discretion, based on the evidence before the officer. City of Aspen v. Marshall, 912 P.2d 56 (Colo. 1996). This means the officer's finding is binding on the reviewing body if supported by any competent evidence. The Fire House v. Bd. ofAdjustment, 30 P.3d 762 (Colo.App. 2001). Therefore, the reviewing body must uphold the decision unless there is no evidence to support it. See City of Aspen, supra. Furthermore, under Colorado law, the interpretation of a zoning ordinance by a zoning administrator is entitled to great deference. See The Fire House, supra. The reviewing body cannot substitute its judgment for that of the administrator. Board of Equalization v. Craddock, 850 P.2d 702 (Colo. 1993). Again, this means the Board does not reconsider the basic issue decided by the Director, and instead must limit itself to reviewing whether the Director carefully considered his own decision. Here, the Director thoroughly analyzed the issue as is reflected in his June 10, 2005 Zoning Interpretation. The Director recognized that the Code does not have specific guidelines regarding the determination of the front and side of lots. The Code defines the front of a lot as "the line normally closest to and/or dividing a lot from a street or street right-of-way," and the Director correctly concluded that this definition could apply to any of the three sides of the Property that are bounded by McSkimming Road. The Director also noted that all of the lots on the north side of McSkimming Road have their front yard setbacks on the roadway and their rear setbacks on the furthest north lot line, away from the roadway. Therefore, the Director's interpretation is consistent with other lots in the neighborhood, and is in keeping with the character of the neighborhood. Based on these facts, there is clear evidence supporting the Director's decision in the circumstances constraining the Property and the Code. Therefore, Applicants request that the Board uphold the Director's decision and not substitute its judgment for that of the Director. Applicants, and our firm, thank the Board for their careful consideration of this matter. Sincerely, KLEIN, COTE & ED.W S, LLC By. / Herbert S. Klein gitlitz\boa ltr appeal 09-08-revlik.doc KLEIN, COTE & EDWARDS, LLC ATTORNEYS AT LAW t b, HERBERT S. KLEIN hsk@kcelaw.net 201 NORTH MILL STREET, STE. 203 LANCE R. COTE, PC" Irc@kcelaw.net ASPEN, COLORADO 81611 JOSEPH E. EDWARDS, III, PC jee@kcelaw.net TELEPHONE: (970) 925-8700 EBEN P. CLARK epc@kcelaw.net FACSUAILE: (970) 925-3977 MADHU B. KRISHNAMURTI mbk@kcelaw.net ' also admitted in California September 15, 2005 Board of Adjustment City of Aspen Community Development Department 130 South Galena Aspen, CO 81611 Re: Lot 1, Block 3 Aspen Grove Subdivision To the Honorable Members of the Board: This matter is before the Board of Adjustment (the "Board"), on an appeal initiated by the owner of a parcel that is not adjacent to the subject property, Mr. Rufus Crockett ("Appellant"). Mr. Crockett seeks to overturn an interpretation of the City of Aspen Municipal Code (the "Code") by the Director of Community Development, Mr. Chris Bendon (the "Director"). The owners of the property referenced above (the "Property"), Warren Maple, LLC and David Maple, LLC, ("Applicants") submit this letter to raise the issue of the jurisdiction of the Board to hear this appeal, before today's hearing begins. In short, it appears from the plain text of the Code that Appellant does not have the right to appeal the Director's decision, and therefore the Board is without jurisdiction to hear the appeal or reverse the Director's decision in this context. The Applicable Code Sections Limt the Right to Appeal Only to Certain Persons. The Director's Zoning Interpretation, dated effective June 10, 2005, was rendered pursuant to Section 26.306.010 of the Code and following this decision, Appellant attempted to file an appeal of the interpretation with the Board citing this Section. Subsection F of this Section limits those who have a right to appeal the interpretation. It states in pertinent part: "Any person who has made a request for interpretation may appeal the interpretation of the [ ... ] Director to the City Council in accordance with the appeal procedures set forth in Chapter 26.316." (Emphasis Added). • 0 Board of Adjustment City of Aspen Community Development Department September 15, 2005 Page 2 Consistent with the limitation set forth above, Section 26.316 of the Code which deals with appeals generally, at its subsection .030 A. states, in pertinent part: "Any person with a right to appeal an adverse decision or determination shall initiate an appeal...." (Emphasis added). It is beyond dispute that the Appellant did not request the interpretation. Since Appellant did not request the interpretation, under Section 26.306.010 F, he does not have the right to an appeal. Since Appellant does not have a right to this appeal, he is barred by Section 26.316. 030 A. from having the Board hear the appeal and the Board has no jurisdiction to do so. It is our understanding that the Director may be submitting the appeal to the Board under Section 26.316.020 A which states, in pertinent part: "The Board of Adjustment shall have the authority to hear and decide the following appeals: 1. Any decision or determination made by an administrative official unless otherwise specifically stated in this title." (Emphasis added). Clearly, the language in bold text above limits the Board's jurisdiction only to those decisions or determinations which are appealable. The appeal brought before you by the Appellant is not within the class of appeals that are allowed by the code because the Appellant does not have the right to bring the appeal. We also believe that the Appellant does not have standing to bring this appeal under any other provision of the Code. He is not an adjacent landowner. Although he lives in the neighborhood and drives by the subject property, he is no more affected by the development on the subject property than is any other person driving along the public road. As such, he is not an aggrieved person nor does he have an injury to a legally protected right and thus does not have standing to maintain the appeal. Therefore, Applicants request that the Board immediately dismiss this matter. Board of Adjustment City of Aspen Community Development Department September 15, 2005 Page 3 Applicants, and our firm, thank the Board for their careful consideration of this matter. Sincerely, KLEIN, COTE & EDWARDS, LLC By: Herbert . Klein appeal jd-ltr.wpd ��- I#4e N�` • / 14 Page 3 of 6 'zo� I - While this situation is somewhat different from ours, as a "corner lot" determination was made, it has many similarities to ours. First, how can it truly be a corner if it's the same street on the two sides of the "corner"? So, an administrative determination was made to treat it as a corner lot. Next, one setback requirement ends and another starts at a point that is not self-evident but is simply the end of a curve along the same street frontage. These were administrative determinations made by the City Zoning Officer. I believe the making of such determinations to be consistent with what we had done, only ours was done more formally (i.e., in writing). Under the absurd Joe Edwards reading of the Code, the above example was done in contravention of so-called clear language in the Code and the entire McSkimming frontage should have been called the "front" yard. So, our determination is consistent with what was done at 189 McSkimming (precedent), certainly a whole lot more so than with the Joe Edwards interpretation that holds no precedent with which I am familiar. Now, I'd be interested to hear all your thoughts. Also, see my comments made below in David's email - Mitch flitch Haas, A1C.P Haas Land Planning, LLC 201 :North Mill Street, Suite 108 Aspen, CO 81611 Phone: (970) 925-7819 17ax: (970) 925-7395 Email.: mhaas(0sopris.net -----Original Message ----- From: David Gitlitz[mailto:david@communityholdings.com] Sent: Wednesday, August 17, 2005 10:21 AM To: Mitch Haas; BWP9765@aol.com; hsk@kcelaw.net; WPCohen@aol.com Subject: RE: aspen grove block 3, lotl Update 9/15/2005 Split Rail FQnc� �Siairs ___ Qb-at-Aveff ept. Pump Station Stru 1 �- pOSS ARCH URE+PLANNI'I, O 0 15' 30' 60' in 990i 9as 4755 ni 990/920 2950 NORTH �— Block 3 - Lot 1 i - --- EAR YARD Ln' \'2 --- Ea mwt ---- / Eleut0ff� �1 Aspen Grove Lot 1, Block 3 Aspen. Colorado SCHEMATIC DESIGN : Site Plan w/ Current Zoning BILL POSS AND ASSOCIATES Q 2005 ARCHITECTURE AND PLANNING. P.C. 04/11/0�j 0 ATTACHMENT AFFIDAVIT OF PUBLIC REQUIRED BY SECTION 26.304.060 (E), NOTICE ASPEN LAND USE CODE ADDRESS OF PROPERTY: l� (�i�spen, CO SCHEDULED PUBLIC HEARING DATE: , 200 STATE OF COLORADO ) ) SS. County of Pitkin ) L "--J � V 4,6_S 1 6L7J7_ (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches widt and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the day of , 200, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing'of notice. By the mailing of a notice obtained from the Commtity Development Department, which contains the information described in�ection 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing; notice was hand delivered or mailed by first class postage prepaid U.S. mail to any federal agency, state, county, municipal government, school, service district or other governmental or quasi -governmental agency that owns property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map has been available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. ignature The.foregoing "Affidavit of Notice" v as a,�knowledge before me ) day of �►- , 20S , by 3o�,s 1 PUBLIC NOTICE RE: APPEAL OF AN ADMINISTRATIVE DECISION REGARDING THE SETBACK DETERMINATION FOR LOT 1, BLOCK 3, ASPEN GROVE SUBDIVI- SION NOTICE IS HEREBY GIVEN that a public hearing will be held on Thursday, August 18, 2005, at a meeting to begin at 4:00 p.m. before the Aspen Board of Adjustment, Council Chambers, Basement of Aspen City Hall, 130 S. Galena St., As- pen, to consider an appeal of administrative deci- sion submitted by Rufus Crockett, P.O. Box 3837, Aspen, CO 81611. The appeal relates to an inter- pretation of determination of setback for Lot 1, Block 3, Aspen Grove Subdivision. For further Information: contact Chris Bendon at the City of Aspen Community Development De- partment, 130 S. Galena St., Aspen, CO, (970) 429- 2765, chrisb®cLaspen.co.us. s/Rich Head, Chair Aspen Board of Adjustment Published in the Aspen Times Weekly on July 31 2005.(2940) WITNESS MY HAND AND 00%FFICIAL SEAL My commission expires:)-3i Notary Public ATTACHMENTS: COPY OF THE P UBLICA TION �O?AA Y G A. �� '•, .O PHOTOGRAPH OF THE POSTED NOTICE (SIGA9 LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BY MAIL Track Instant • Page 1 of 1 .alp WES Delivery Status OSrALS RWIC ���S���E RE(:FIVFC Here is the detailed status of the shipment you are tracking. Check all of the information carefully. If these appears to be a problem with your shipment, contact the carrier directly. JUL 2 6 2005 Account Number: 11650561 Carrier: USPS Tracking Number: 9171082133393167825665 i��f't Status: Electronic Shipping Info Received BUILDING r1fPAR�lt�NT 9 • Print � Close ; r11 L I http://www.pb.comlcgi-binlpb.dll/j spITrackInstant.do?packagelndex= l &page=TrackInsta... 7/26/2005 o 'n 0 � NO 03 V N W z ODo Ftf}-'a N o 002 0 a M tL �"I 0 J �S�al,r,n o o jyk� WIN -- -� ru CO m m m m ru CO o a Q-• 1 M F, o� r, a 40 W Q L66.1 y� • • • Track Instant Page 1 of 1 • • ..j Delivery Status UNITEDSTeTES PUT POSTAL SERME Here is the detailed status of the shipment you are tracking. Check all of the information carefully. If ������� these appears to be a problem with your shipment, contact the carrier directly. Account Number: 11650561 JUL 2 6 2005 Carrier: USPS Tracking Number: 9171082133393167825658 AW dlV Status: Electronic Shipping Info Received BUILDING ITPARTMENT http://www.pb.comlcgi-binlpb.dll/j spITracklnstant. do?packageIndex=0&page=TrackInsta... 7/26/2005 O to O .- CN O co N 00 LPG 00 v a: CL d � Cl) LL fO O ` Qm N O Q /Nn O O m Ln ru CO m m m m M, ru o Ir tQ <co o Zg � U o � V r� RAF 0 'milk 1921k KLEIN, COTE & EDWARDS.) LLC HERBERT S. KLEIN hsk@kcelaw.net LANCE R. COTE, PC* lrc@kcelaw.net IOSEPH E. EDWARDS, III, PC jee tJ celaw.net EBEN P. CLARK epc « celaw.net MADHU B. KRISHNA RJRTI mbk@ccelaw.net ' also admitted in Califomia Board of Adjustment City of Aspen Community Development Department 130 South Galena Aspen, CO 81611 ATTORNEYS AT LAW September 12, 2005 201 NORTH MILL. STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSRvM-E: (970) 925-3977 Re: Variance Application for Lot 1, Block 3 Aspen Grove Subdivision To the Honorable Members of the Board: This firm represents Warren Maple, LLC and David Maple, LLC, ("Applicants") as owners of the above referenced property located on McSkimming Road within the City of Aspen (the "Property"). This matter is an application for setback variances to allow the construction of a home and driveway within the 30-foot front setback of the above referenced lot. Staff has recommended approval of this variance, and the Board of Adjustment (the "Board") first heard the application on May 19, 2004. At that hearing, the Board continued the matter. The purpose of this letter is to assist the Board in its review of the issues to be presented. Background The Property is a long narrow lot located within a switchback turn on McSkimming Road. The southern lot line of the Property is within the elbow of the switchback and the northern end abuts another parcel. The broader, northern end of the Property is encumbered by two utility easements that prevent construction of the home on that end of the lot. Applicant initially believed the eastern, uphill lot line to be the "front" of the property. Were this true, a literal enforcement of the setbacks in the Code would result in a building envelope that is only ten feet in width. The Board considered this application on May 19, 2005, but the application was continued at that time. After the continuance, Applicants reexamined the definition of the Minimum Front, Side and Rear Yard Setback Requirements set forth in Section 26.710.070(D)(4), (5), and (6) of the Code, and requested an interpretation of these Sections by the Director, pursuant to Section 26.306.010 of the Code. After reviewing the Code and the Property, the Director determined that the southern lot line of the Property, within the switchback, was more properly considered the "front" of the lot. An adjoining neighbor appealed that determination and the appeal hearing is scheduled immediately prior to your hearing on this variance application. In the event the Board of Adjustment • • City of Aspen September 12, 2005 Page 2 appeal is granted and the Director's decision overturned, then you will be hearing this variance request. If the appeal is denied, then this letter is not necessary as there will be no need for the variance. In the event the appeal of the Director's determination is overturned, Applicants ask that the Board reconsider and grant the requested variances, to allow the construction of a single- family home on the Property. The Requested Variance In the present case, the Community Development Department has recognized that the Property meets all of the requirements for a variance and has recommended that the Board grant the application. See Memorandum of Sarah Oates dated May 19, 2005. Under the Code, in order to authorize a variance from the dimensional requirements of Title 26, the Board must make a finding that three circumstances exist. The Board is very familiar with these circumstances, and they are, in short, that the grant: (1) will be generally consistent with the purposes, goals, objectives, and policies of the Community Plan and Code; (2) is the minimum variance that will make possible the reasonable use of the parcel; and (3) that a literal interpretation and enforcement of the Code would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district, and would cause the applicant unnecessary hardship or practical difficulty. Section 26.314.040. In determining whether an applicant's rights would be deprived, the Board is required to consider whether: (a) There are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures or buildings in the same zone district and which do not result from the actions of the applicant; or (b) granting the variance will not confer upon the applicant any special privilege denied by the Community Plan and the Code to other parcels, buildings, or structures, in the same zone district. Section 26.314.040. It is well recognized that the irregular shape or other peculiar physical characteristics of a particular parcel constitute a classic hardship, unique to an individual owner, which justifies, and in some cases, requires the granting of a variance. See City of Coral Gables v. Geary, 383 So.2d 1127 (Fla.App. 3 dist. 1980) and cases cited therein; 3 Anderson, American Law of Zoning sec. 18.34 (2d. ed. 1977). Staff has already concluded that Applicants meet all of the above requirements, and recommended granting the requested variance on May 19, 2005. To bolster the recommendations of Staff, Applicants ask that the Board consider several addition facts relevant to this application. First, McSkimming Road is in the Mountain Valley area. This neighborhood is comprised of medium sized luxury homes of between 3,000 and 5,000 square feet. The proposed variance would allow the construction of a home with floor area within this range and Board of Adjustment • • City of Aspen September 12, 2005 Page 3 therefore the requested variance is the minimum necessary and would allow only a use that is consistent with the uses on the surrounding lots and within the zone district. Second, the conditions on the Property are certainly unique. The shape of the lot is only the first aspect of the problem. The Property is also located on a steep slope that drops across the narrow axis of the lot, use of the Property is restricted by utility easements on its northern end, and finally, the Property is confined on three sides by the roadway. Because of these restrictions, the literal application of the Code would result in a building envelope only ten feet in width. This envelope would allow only the construction of a "railroad car" type structure with only an eight and one-half foot interior space. Such a home could not have closets or hallways. Ironically, such a structure would still require us to seek a variance in order to raise the grade across the slope to allow access for vehicles as well as steps and a walkway to enter the house. Such a structure would have trouble meeting the building code and would not even the satisfy livability standards for affordable housing! Therefore, the constraints on this lot would cause Applicants unnecessary hardship and practical difficulty. Finally, such a home would be very small and awkward, and unlike the medium sized luxury homes in the neighborhood. Therefore, denial of the requested variances would deny the Applicants the use enjoyed by the neighboring parcels. Each of the points above is further addressed in the Memorandum of Staff. Applicants believe Staff has correctly analyzed the issues and ask the Board to accept Staff s recommendation and grant of the requested variances. Applicants, and our firm, thank the Board for their careful consideration of this matter. Sincerely, KLEIN, COTE & EDWARDS,,,LLC By:_� j. Herbert S. Klein gitlitz\boa la -variance 09-11 revec-fdoc 130 S. Galena St. Aspen CO 81611 (970) 920-5090 (970) 920-5439 FAX www.aspenpitkin.com Fax To: From: Fax: Pages:4- Phone., Date: Re: CC: ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle • Comments: �JC� ■0 i-J 1 07 2005 3: 47PM At0rne5 at Law 9�963-2111 P.1 JOSEPH E. EDWARDS, P.C. e-mail Joceduvrdsl�lsoprie.net LAW OFFIM JOSEPH E. EDWARDS, P.C. 14 FENDER LANE CARBONDALE, COLORADO 81623 (970) 963-2111 FACSIMILE COVER SHEET TELEPHONE (970) 963-2111 FACSIMILE IMPORTANT.- THIS COMMUNICATION IS INTENDED SOLELY FOR THE USE OF THE PERSON NAMED HEREINOROTHERSAUTIIORIZEDTORECEIVEIT. THIS COMMUNICATIONMAYINCLUDEPRIVILEGEDAND CONFIDENTIAL INFORMATION AND ANY USE, DISSEMINATION OR REPRODUCTION BY UNAUTHORIZED PERSON'SISABSOLUTE• LYPROIIIBITED. IF YOUHAVERECEIVED THISCOMMUNICATIONINERROR, PLEASE NOTIFY THE SENDER IMMEDIA TEL V TO: C1`fzls g€it/.� COm/Y!iwl yr FAX NUMBER: _ 92,--) -6 f- 9-�P FROM: Joseph E. Edwards DATE: 7-1 %lam RE: Afr&fi-e-- 6;-- TEXT /N r�21�iQ�T G7�vV Total number of pages: LL(including this cover sheet). If you do not receive all of the pages, please call (970) 963-2111. DOCUMENTS TRANSMITTED: (Z0 s 0-RICO-"'rT to (C L swcxp 'Irs Y T-4(5 00rV 62 e- Y10 U c tf ECG FO f2 It (G &0 1%- S Ate- (T" Fd 2 A'Iy PPS 9t 6 nJ '3�f_E F�+� S l�i�lT F( C Gtl� v heea\1 faxfrm • • Susan Capiel/Collin P.O. BOX 3057, ASPEN, CO 81612 400 McSkimming Rd., Aspen, CO 81611 970-379-2011; 925-9011 Fax; email: cellsue@cs.com October 15, 2005 Aspen Community Development Attn: Chris Bendon City Hall, 130 S. Galena Aspen, CO 81611 Dear Chris, PFC-lu OCT 17 2005 ASPEN BUILDING DEPARTMENT am an owner at 400 McSkimming Rd. (Lot 7, Blk 2), which is adjacent to Lot 1, Blk 3 in Aspen Grove. I would like to request an interpretation of the setback definitions that were made by your office regarding Lot 1, Block 3. I look forward to your response. Sincerely, Susan Capiel/Collin 13C S. Galena St. Aspen CO 81611 (970) 920-5090 (970) 920-5439 FAX www.aspenpitkin.com �J ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle • Comments: Page 1 of l X-Sender: saraho@sam X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.0.58 Date: Thu, 28 Jul 2005 15:17:42 -0600 To: jackiel@ci.aspen.co.us From: Sarah Oates <saraho@ci.aspen.co.us> Subject: BOA hearing Cc: chrisb@ci.aspen.co.us The BOA hearing for both the appeal and the case on McSkimming are going to be continued to Sept. 15. Both cases should happen on that date as all involved parties are available. Thanks. LAW OFFICE R1P-1 - �^P/ JOSEPH E. EDWARDS, P.C. J'J VFD 14 FENDER LANE N 1 5 2n05 CARBONDALE, COLORADO 81623 BUj(OlN� pE N JOSEPH E. EDWARDS, JR. TELEP� e-mail: joeedwards@sopris.net (970) 963-2111 FACSIMILE (970)963-2111 June 10, 2005 Aspen Building Department 130 South Galena Aspen, CO 81611 Re: Lot 14, Block 3 Aspen Grove Subdivision Dear Building Department, I represent Rufus Crockett, the owner of Lot 13, Block 3, Aspen Grove Subdivision, which is adjacent to Lot 14, Block 3. While we are aware that the Building Department and Community Development do not generally enforce restrictive covenants, the original plat and design of that subdivision and the Restrictive Covenants for Block 3, in paragraph 19 thereof, provide a view plane and other visual protections for the other owners in the subdivision, and for all members of the community by prohibiting any structure on that portion of Lot 14 lying north of the platted road easement over such Lot. That northerly portion of Lot 14 is a steep bare hillside well above the 8040 elevation and any structure on that portion of the Lot would be highly visible from the entire town. Although that land was part of the property owned by Fritz Benedict and therefore was included in the subdivision, it was never intended to be built on. We urge the city to reject any proposed application for construction on the northerly portion of Lot 14, Block 3, as the restriction was part of the fundamental design of the subdivision, as approved by the County. Mr. Crockett has requested that he be advised (925-8462) should the owner of Lot 14, Block 4 present any future development plans that include any structure on the northerly portion of Lot 14, Block 3. Very truly yours, Joseph E. Edwards P.C. By. J s E wards cc. Rufus Crockett Aspen Community Development LAW OFFICE JOSEPH E. EDWARDS, P.C. 14 FENDER LANE CARBONDALE, COLORADO 81623 JOSEPH E. EDWARDS, JR. e-mail: joeedwards@sopris.net June 10, 2005 Fir Warren LLC Fir David LLC 595 S. Broadway #200 Denver, CO 80209 Re: Lot 14, Block 3 Aspen Grove Subdivision Gentlemen, RFcF1VL:0 JUN I ' 2005 'EIVT TELEPHONE (970)963-2111 FACSIMILE (970)963-2111 I represent Rufus Crockett, the owner of Lot 13, Block 3, Aspen Grove Subdivision, which is adjacent to your Lot 14, Block 3. As you are likely aware, the Restrictive Covenants for Block 3, in paragraph 19 thereof, provide a view plane and other visual protections for the owner of Lot 13 and other owners in the subdivision, by prohibiting any structure on that portion of Lot 14 lying north of the platted road easement over such Lot. Mr. Crockett has requested that any future development plans you may have for Lot 14 be strictly in compliance with the Restrictive Covenants, and that he will vigorously pursue enforcement of the Restrictive Covenants by injunction or otherwise, should that become necessary. Very truly yours, Joseph E. Edwards P.C. Joseph E. Edwards cc. Rufus Crockett Aspen Community Development Aspen Building Department Jun 14 2005 6:59PH nttorney at Law 970-903-2111 40 p.3 Flistory: «'hen Fritz Benedict created this subdivision, an adjacent homeowner, Olivia Dunaway, purchased at least six of the lots, which were adjacent to or which otherwise might have impacted views from her residence, in order to assure her privacy. One Lot so purchase was this Lot 1, block 3 that is immediately adjacent her former residence. Ms. Dunaway recently sold her residence and all the surrounding lots in her ownership to the principals of the applicant, and those new owners are attempting to maximize development potential on all those properties. Although there is an obvious intended building site on Lot 1 at the north end of the Lot away from the street, the size of building is constrained somewhat by an underground easement for a city pump station. Applicant also asserts there is a easement for "future utility, rights reserved to the adjacent property" that further constrains a 'building envelope in the north portion of the lot, but no evidence of such future utility rights has been provided. Further the adjacent property in question is the former residence of Ms. Dunaway which is also owned by the principals of applicant and such future utility rights could be rclocatcd by applicants themschvcs. It is also unclear there is any need for future utilities for the former Ms. Dunaway parcel, as it has been fully served by all utilities for years. However even assuming both such eas:ments were constraints there is still an area of approximately 2000 square feet that could be a building site for a residence on the north end of the lot. It appears that the applicants do not want to build there for the same reason that Ms. Dunaway acquired Lot 1, ie it gwoulkd impact the privacy of the residence on the adjacent parcel. Therefore the applicant sought a variance from the front yard setback so drat they could construct a residence on the narrow strip of land bemeen the switchback of the road and construct a Great Wall of China -type house and place the impacts on the other neighbors instead of their adjacent residence former ly owned by Ms. Dunaway. That varanec application was unanimously opposed by all neighbors which a large turnout of 30 or more neighbors voicing opposition, so the variance hearing was continued while the applicant thought up anorher way they might accomplish their goal without having to encounter the neighborhood opponents. That alternative turned out to be a request to the community development department by the applicants planner (Nvho until recently was a key official in the community devclopmcnt department with many) that the community development director "interpret" that the deftnition of Front Lot Line" and thus tl�e front yard setback should only apply to u very small portion of what is really the Front Yard Line. By such administrative "interpretation", applicant seeks to avoid the need for any variance to build on the narrow south part of lot 1 and thus avoid the neighbors opposition to applicant's plans. Jun 14 2005 9:01PN A nttorney at Law 0 970-963-2111 0 p.4 Argument: As noted the only authority of the community development director is to make an interpretation of the `text" of the land use regulations. An interpretation of tent becomes necessary if it is ambiguous or otherwise unclear. However, if code language is clear and unambiguous there is no reason or justification for any further "interpretation." In this instance a supposed "interpretation" is sought the true purpose of which is to avoid the application of the clear code restriction against building in a front yard. The code in Section 26.104.100 defines a Front Lot Line as "the line closest to and dividing a lot from a street." That definition is clear and unambiauous. In this instance the Front Lot Line is the curved lines of the Lot as it is adjacent to a switchback of McSkimming Road. Many lots have curved front lot lines that follow cured strew. The curves in this instance are more extensive as the lot is adjacent a switchback on a steep hill, but that does not justify ignoring the clear definition of a front lot line. The 30 foot front yard setback requirement for the R-15B zone makes the narrow southerly extension of the lot into the area between the switch back of the road unbuiid able, which was obviously the intent in the original design of the subdivision, There is no authority in the code for the community development director to assert that the clear definition of a front lot line shall only apply to a very small part of "the line closest to and dividing a lot from a street." That is not an interpretation of the "text" of the code, that is an evasion of the text of the code. The code in Section 26.316.020 B 4 provides that this appeal shall be a public hearing before the city counsel. Please advise us when this hearing will be scheduled.. Very truly ) ours Joseph E. Edwards P.C. N By: l J se Ervar s Jr. • June 30, 2005 Joseph Edwards 14 Fender Lane Carbondale, CO 81623 Re: Lot 1, Block 3 Aspen Grove Subdivisions Dear Mr. Edwards: ^ ASPEN/PITIQN COMMUNITY DEVELOPMENT DEPARTMENT I am in receipt of your appeal request letter, regarding Lot 1, Block 3, Aspen Grove Subdivision. The Section of the City's Land Use Code that you have cited does not apply in this case. Section 26.316.020.B.4 enables the City Council to hear and decide appeals for which specific authority is not granted to another board or commission. In this case, specific . authority has been granted to the Board of Adjustment. Section 26.316.020.A.I enables the Board of Adjustment to hear and decide appeals of decisions made by an administrative official. In the alternative, you and your client could request an interpretation of the City's Land Use Code regarding this front yard issue and appeal an adverse determination to the City Council pursuant to Section 26.316:020.B.1. Your appeal request letter is insufficient, as it seeks an appeal directly to City Council, and the City is unable to process it. Please let us know how it is you 'intend the City to address this request. I've not been able to reach you by phone and you've not returned my message. I've not been able to contact Rufus Crockett, as he does not appear to have a listed phone number or a file with the -County Assessor. Should you decide to seek an appeal we will also need a completed application form and review fees; which we can go over at the appropriate time. Sincerely, �Am - Chris Bendon, AICP . Community Development Director City of Aspen Copy: John Worcester, City Attorney 130 SOUTH GALENA STREET ASPEN, CbLoRAoo 81611-1975 • PHONE 970.920.5090 FAx 970.920.5439 Printed on Recycled Paper Jun 14 2005 0:59PM nttorney at Law 970-963-2111 p.2 0 RECEIVED LAW OFFICE JUN 1 6 2005 JOSEPH E. EDWARDS, P.C. HJrcly id FENDER LANE gUi{.pING DEPARTMENT CAItI30ND.ALE, COLORADO 81623 TE'..F.PHONE JOSEPH E. PDWARDS, JR. (970) 963-2,11 l email; joccdwards@sopris.net FACSIMILE (97D)965.2111 June 14,2Uh--1 Sarah Oates Aspen Community Development 130 South Galena Aspen, CO 81611 Re: Lot 1, Block 3 Aspen Grove Subdivision ncnr f;n.rnh, �Vl )411 Rufus Crockett as an affected neighbor would like to file an appeal pursuant to 26.316.020 B 4, from the administrative determination that the front yard of Lotl, Block 3, Aspen Grove Subdivision, is oniv the narrow tip of land on such lot at the apex of the switchback of the public road. The grounds for the appeal are : 1. The communin• development director under 26.306.010 A. has no authority to make this type of "i-uttrpr4-1aGuu" wid dvf1au unly a lirnil.ed front yard for a particular lot, but only has the authority to interpret the "text of this Title [ie Title 26 of the Land Use Regulations,] and the boundaries of the zone district map." 2. That even if the director had authority to define a front yard, the limited defined front yard in this instance is clearly erroneous and contrary to the code definition of front yard. :. That the "interpretation" in this instance is being used as a means to avoid public opposition to a pending application for a variance to a front yard setback requirement that has been opposed by virtually the enure affected neighborhood, and appears to be unusual deference being given to the applicant's planner who until recently was a principal employee of the comet, unity development department. 4. That applicant can build a residence on the north end of the lot where it was obviously intended to be built upon as applicant is in control of the adjacent property and can relocate a future easement for the benefit of such adjacent property. KLEIN, COTE & EDWARDS, LLC HERBERT S. KLEIN hsk@kcelaw.net LANCE R. COTE, PC* Irc@kcelaw.net JOSEPH E. EDWARDS, III, PC jee@,kcelaw.net EBEN P. CLARK epc@kcelaw.net MADHU B. KRISHNAMURTI mbk@,kcelaw.net • also admitted in California Board of Adjustment City of Aspen Community Development Department 130 South Galena Aspen, CO 81611 ATTORNEYS AT LAW September 12, 2005 Re: Lot 1, Block 3 Aspen Grove Subdivision To the Honorable Members of the Board: 201 NORTH MILL STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSRv=: (970) 925-3977 As you may know, our firm represents Warren Maple, LLC and David Maple, LLC, ("Applicants") as owners of the above referenced property located on McSkimming Road within the City of Aspen (the "Property"). This matter is an appeal to the Board of Adjustment (the "Board"), initiated by the owner of a parcel that is not adjacent to the Property, Mr. Rufus Crockett ("Appellant"). Mr. Crockett seeks to overturn an interpretation of the City of Aspen Municipal Code (the "Code") by the Director of Community Development, Mr. Chris Bendon (the "Director"). The purpose of this letter is to assist the Board in its review of the issues to be presented and to supply the Board with the Colorado law that governs the Board's decision. Background The Property is a long narrow lot located within a switchback turn on McSkimming Road. The southern lot line of the Property is within the elbow of the switchback and the northern end abuts another parcel. The broader, northern end of the Property is encumbered by two utility easements that prevent construction of the home on that end of the lot. Applicant initially believed the eastern, uphill lot line to be the "front" of the property. Were this true, a literal enforcement of the setbacks in the Code would result in a building envelope that is only ten (10) feet in width. After their initial application for a variance was continued, Applicants reexamined the definition of the Minimum Front, Side and Rear Yard Setback Requirements set forth in Section 26.710.070(D)(4), (5), and (6) of the Code, and requested an interpretation of these Sections by the Director, pursuant to Section 26.306.010 of the Code. After reviewing the Code and the Property, the Director determined that the southern lot line of the Property, within the switchback, was more properly considered the "front" of the lot. This decision is reflected in the Director's Zoning Interpretation dated effective June 10, 2005. Appellant now asks the Board to overturn this finding by the Director. Should the Board decide to reverse the decision of the Director, Applicants will ask that the Board reconsider and grant the previously requested variances to allow the construction of a single-family home on the Property. Board of Adjustment City of Aspen September 12, 2005 Page 2 The Current Appeal Applicants ask the Board to reverse a decision by the Director. Section 26.316.030(E) of the Code sets out the standard of review controlling the Board's decision. Section 26.316.030(E) states "A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion." This abuse of discretion review is similar to the review of any agency action by a Colorado court. Under Colorado law, the reviewing body is limited to a determination whether the officer has exceeded his jurisdiction or abused its discretion, based on the evidence before the officer. City of Aspen v. Marshall, 912 P.2d 56 (Colo. 1996). This means the officer's finding is binding on the reviewing body if supported by any competent evidence. The Fire House v. Bd. ofAdjustment, 30 P.3d 762 (Colo.App. 2001). Therefore, the reviewing body must uphold the decision unless there is no evidence to support it. See City of Aspen, supra. Furthermore, under Colorado law, the interpretation of a zoning ordinance by a zoning administrator is entitled to great deference. See The Fire House, supra. The reviewing body cannot substitute its judgment for that of the administrator. Board of Equalization v. Craddock, 850 P.2d 702 (Colo. 1993). Again, this means the Board does not reconsider the basic issue decided by the Director, and instead must limit itself to reviewing whether the Director carefully considered his own decision. Here, the Director thoroughly analyzed the issue as is reflected in his June 10, 2005 Zoning Interpretation. The Director recognized that the Code does not have specific guidelines regarding the determination of the front and side of lots. The Code defines the front of a lot as "the line normally closest to and/or dividing a lot from a street or street right-of-way," and the Director correctly concluded that this definition could apply to any of the three sides of the Property that are bounded by McSkimming Road. The Director also noted that all of the lots on the north side of McSkimming Road have their front yard setbacks on the roadway and their rear setbacks on the furthest north lot line, away from the roadway. Therefore, the Director's interpretation is consistent with other lots in the neighborhood, and is in keeping with the character of the neighborhood. Based on these facts, there is clear evidence supporting the Director's decision in the circumstances constraining the Property and the Code. Therefore, Applicants request that the Board uphold the Director's decision and not substitute its judgment for that of the Director. Applicants, and our firm, thank the Board for their careful consideration of this matter. Sincerely, KLEIN, COTE & EDWAS, LLC By: Herbert S. Klein gitlitz\boa Itr appeal 09-08-revhk.doc 130 S. Galena St. Aspen CO 81611 (970) 920-5090 (970) 920-5439 FAX www.aspenpitkin.com FaX ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle 0 Comments: CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT GENERAL LAND USE APPLICATION PACKET THE CITY of ASPEN Attached is an Application for review of Development that requires Land Use Review pursuant to the City of Aspen Land Use Code. Included in this package are the following attachments: Development Application Fee Policy, Fee Schedule and Agreement for Payment Form 2. Land Use Application Form 3. Dimensional Requirements Form. --N4N 4. Matrix of Land Use Application Requirements/Submittal Requirements Key 5. General Summary of Your Application Process 6. Public Hearing Notice Requirements 7. Affidavit of Notice All applications are reviewed based on the criteria established in Title 26 of the Aspen Municipal Code. Title 26 of the Aspen Municipal Code is available at the City Clerk's Office on the second floor of City Hall and on the internet at www.aspenpitkin.com , City Departments, City Clerk, Municipal Code, and search Title 26. We strongly encourage all applicants to hold a pre -application conference with a Planner in the Community Development Department so that the requirements for submitting a complete application can be fully described. Also, depending upon the complexity of the development proposed, submitting one copy of the development application to the Case Planner to determine accuracy, insufficiencies, or redundancies can reduce the overall cost of materials and Staff time. Please recognize that review of these materials does not substitute for a complete review of the Aspen Land Use Regulations. While this application package attempts to summarize the key provisions of the Code as they apply to your type of development, it cannot possibly replicate the detail or the scope of the Code. If you have questions which are not answered by the materials in this package, we suggest that you contact the staff member assigned to your case or consult the applicable sections of the Aspen Land Use Regulations. ATTACHMENT 1 CITY OF ASPEN DEVELOPMENT APPLICATION FEE POLICY The City of Aspen, pursuant to Ordinance 57 (Series of 2000), has established a fee structure for the processing of land use applications. A flat fee or deposit is collected for land use applications based on the type of application submitted. Referral fees for other City departments reviewing the application will also be collected when necessary. One check including the deposit for Planning and referral agency fees must be submitted with each land use application, made payable to the Aspen/Pitkin Community Development Department. Applications will not be accepted for processing without the required application fee. A flat fee is collected by Community Development for Administrative Approvals which normally take a minimal and predictable amount of staff time to process. The fee is not refundable. A deposit is collected by Community Development when more extensive staff review is required, as hours are likely to vary substantially from one application to another. Actual staff time spent will be charged against the deposit. Several different staff members may charge their time spent on the case in addition to the case planner. Staff time is logged to the case and staff can provide a summary report of hours spent at the applicant's request. After the deposit has been expended, the applicant will be billed monthly based on actual staff hours. Applicants may accrue and be billed additional expenses for a planner's time spent on the case following any hearing or approvals, up until the applicant applies for a building permit. Current billings must be paid within 30 days or processing of the application will be suspended. If an applicant has previously failed to pay application fees as required, no new or additional applications will be accepted for processing until the outstanding fees are paid. In no case will Building Permits be issued until all costs associated with case processing have been paid. When the case planner determines that the case is completed (whether approved or not approved), the case is considered closed and any remaining balance from the deposit will be refunded to the applicant. Applications which require a deposit must include an Agreement for Payment of Development Application Fees. The Agreement establishes the applicant as being responsible for payment of all costs associated with processing the application. The Agreement must be signed by the party responsible for payment and submitted with the application and fee in order for a land use case to be opened. The current complete fee schedule for land use applications is listed on the next page. • ASPEN COMMUNITY DEVELOPMENT 2005 LAND USE APPLICATION FEES CATEGORY HOURS Major 12 Minor 6 Staff Approvals 3 Flat Fee Board of Adjustment Exempt HP Certificate of No Negative Effect Minor HPC 3 Significant HPC <1000 sq. ft. 6 Significant HPC >1000 sq. ft. 12 Demolition, Partial Demolition, Relocation 12 Substantial Amendment to Approved Certificate of Appropriateness .�� Appeals — Base Fee Referral Fees - Environmental Health Major Referral Fees - Housing Major Minor Referral Fees - City Engineer Major Minor DEPOSIT FLAT FEE 2,640.00 1,320.00 660.00 660.00 1,320.00 2,640.00 2,640.00 660.00 660.00 00' 546.00 250.00 00.00 220.00 365.00 365.00 190.00 365.00 190.00 Hourly Rate 220.00 • E CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and (hereinafter APPLICANT) AGREE AS FOLLOWS: APPLICANT has submitted to CITY an application for (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ &W^ which is for a Hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $220.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN By: Pif 11A ANIV Chris Bendon Community Development Director g:\support\forms\agrpayas.doc 1 / 10/01 APPLICANT By: Date: Mailing Address: C� 0 ATTACHMENT 2 —LAND USE APPLICATION APPLICANT: Name: Location: (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) REPRESENTATIVE: Name: Address: Phone #: PROJECT: Name: Address: Phone #: TYPE OF APPLICATION: (please check all that apply): ❑ Conditional Use ❑ Conceptual PUD ❑ Conceptual Historic Devt. ❑ Special Review ❑ Final PUD (& PUD Amendment) ❑ Final Historic Development ❑ Design Review Appeal ❑ Conceptual SPA ❑ Minor Historic Devt. ❑ GMQS Allotment ❑ Final SPA (& SPA Amendment) ❑ Historic Demolition ❑ GMQS Exemption ❑ Subdivision ❑ Historic Designation ❑ ESA — 8040 Green Iine, Stream ❑ Subdivision Exemption (includes ❑ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion ❑ Mountain View Plane Lot Split ❑ Temporary Use ( r Other: �o�� ❑ Lot Line Adjustment ❑ Text/Ma Amendment A44� n EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) PROPOSAL: (description of proposed buildings, uses, modifications, etc.) 00, Have you attached the following? FEES DUE: $� ❑ Pre -Application Conference Summary ❑ Attachment #1, Signed Fee Agreement ❑ Response to Attachment #3, Dimensional Requirements Formow V*W ❑ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standardmn.!? k*.r All plans that are larger than 8.5" x I I" must be folded and a floppy disk with an electronic copy of all vv'ritten text (Microsoft Word Format) must be submitted as part of the application. 0 ATTACHMENT 5 DEVELOPMENT REVIEW PROCEDURE 1. Attend pre -application conference. During this one-on-one meeting, staff will determine the review process which applies to your development proposal and will identify the materials necessary to review your application. 2. Submit Development Application. Based on your pre -application meeting, you should respond to the application package and submit the requested number of copies of the complete application and the appropriate processing fee to the Community Development Department. 3. Determination of Completeness. Within five working days of the date of your submission, staff will review the application, and will notify you in writing whether the application is complete or if additional materials are required. Please be aware that the purpose of the completeness review is to determine whether or not the information you have submitted is adequate to review the request, and not whether the information is sufficient to obtain approval. 4. Staff Review of Development Application. Once your application is determined to be complete, it will be reviewed by the staff for compliance with the applicable standards of the Code. During the staff review stage, the application will be referred to other agencies for comments. The Planner assigned to your case or the agency may contact you if additional information is needed or if problems are identified. A memo will be written by the staff member for signature by the Community Development Director. The memo will explain whether your application complies with the Code and will list any conditions which should apply if the application is to be approved. Final approval of any Development Application which amends a recorded document, such as a plat, agreement or deed restriction, will require the applicant to prepare an amended version of that document for review and approval by staff. Staff will provide the applicant with the applicable contents for the revised plat, while the City Attorney is normally in charge of the form for recorded agreements and deed restrictions. We suggest that you not go to the trouble or expense of preparing these documents until the staff has determined that your application is eligible for the requested amendment or exemption. 5. Board Review of Application. if a public hearing is required for the land use action that you are requesting, then the Planning Staff will schedule a hearing date for the application upon determination that the Application is complete. The hearing(s) will be scheduled before the appropriate reviewing board(s). The Applicant will be required to - mail notice (one copy provided by the Community Development Department) to property owners within 300 feet of the subject property and post notice (sign available at the Community Development Department) of the public hearing on the site at least fifteen (15) days prior to the hearing date (please see Attachment 6 for instructions). The • 0 Planning Staff will publish notice of the hearing in the paper for land use requests that require publication. The Planning Staff will then formulate a recommendation on the land use request and draft a memo to the reviewing board(s). Staff will supply the Applicant with a copy of the Planning Staff s memo approximately 5 days prior to the hearing. The public hearing(s) will take place before the appropriate review boards. Public Hearings include a presentation by the Planning Staff, a presentation by the Applicant (optional), consideration of public comment, and the reviewing board's questions and decision. 6. Issuance of Development Order. If the land use review is approved, then the Planning Staff will issue a Development Order which allows the Applicant to proceed into Building Permit Application. 7. Receipt of Building Permit. Once you have received a copy of the signed staff approval, you may proceed to building permit review. During this time, your project will be examined for its compliance with the Uniform Building Code. It will also be checked for compliance with applicable provisions of the Land Use Regulations which were not reviewed in detail during the one step review (this might include a check of floor area ratios, setbacks, parking, open space and the like). Fees for water, sewer, parks and employee housing will be collected if due. Any document required to be recorded, such as a plat, deed restriction or agreement, will need to be reviewed and recorded before a Building Permit is submitted. 0 ATTACHMENT 6 PUBLIC HEARING NOTICING REQUIREMENTS Three forms of notice are required by the Aspen Land Use Regulations: publication in the newspaper, posting of the property, and mailing to surrounding landowners. Following is a summary of the notice requirements, including identification of who is responsible for completing the notice. 1. Publication - Publication of notice in a paper of general circulation in the City of Aspen is to be done at least fifteen (15) days prior to the hearing. The legal notice will be written by the Community Development Department and we will place the notice in the paper within the appropriate deadline. Posting - Posting of a sign in a conspicuous place on the property is to be done fifteen (15) days prior to the hearing. It is the applicant's responsibility to obtain a copy of the sign from the Community Development Department, to fill it in correctly and to bring proof to the hearing that posting took place (use attached affidavit). Mailing - Mailing of notice is to be made to all owners of property within 300 feet f t subject development parcel by the applicant. It is the applicant's responsibility to obtain a copy of the notice from the Community Development Department, to mail it according to the following standards, and to bring proof to the hearing that the mailing took place (use attached affidavit). Notice to mineral Estate Owner. An Applicant for surface Development shall notify affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application for development. The applicant shall certify that the notice has been provided to the mineral estate owners. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of public hearing. THE, Cm OF ASPEN 130 SOUTH GALENA STREET ASPEN, COLORADO 81611-1975 I I I lill 11111111111 3931 6782 5658 UN��t A40R fs�a��F �4'es Pos" o 02 1A 0004363408 JUL MAILED FROM ZIP CODE 816 RECF-I'VED JUL 2 8 2005 A�etN BUILDING DEPARTNAIENT ........... 3 PUBLIC NOTICE RE: APPEAL OF AN ADMINISTRATIVE DECISION REGARDING THE SETBACK DETERMINATION FOR LOT 1, BLOCK 3, ASPEN GROVE SUBDIVISION NOTICE IS HEREBY GIVEN that a public hearing will be held on Thursday, August 18, 2005, at a meeting to begin at 4:00 p.m. before the Aspen Board of Adjustment, Council Chambers, Basement of Aspen City Hall, 130 S. Galena St., Aspen, to consider an appeal of administrative decision submitted by Rufus Crockett, P.O. Box 3837, Aspen, CO 81611. The appeal relates to an interpretation of determination of setback for Lot 1, Block 3, Aspen Grove Subdivision. For further information, contact Chris Bendon at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO, (970) 429-2765, chrisb@ci.aspen.co.us. s/Rich Head, Chair Aspen Board of Adjustment Published in the Aspen Times on July 31, 2005 City of Aspen Account 4 ■ 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. Received by ( Printed Name) I C. ❑ Agent D. Is delivery address different from item 1? ❑ Ye If YES, enter delivery address below: ❑ No 3AService Type ertified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number 91 7108 2133 3931 6782 5658 (Transfer from service 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 • 1 ■ Complete items 1, 2, and 3. Also complete 1 4 if Restricted Delivery is desired. t your name and address on the reverse so that we can return the card to you. IN Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Ste, �s A. X t / ❑ Agent Al ❑ Addressee B. a iveclby n to / C. Date of Delivery D. Is delivery address different from item 1? ❑ Yes If YES, enter delivery address below: ❑ No 3. Service Type I—P Certified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number (Transfer from service fabe� 91 7108 2133 3931 6 7 8 2 5665 P�ftm 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE First -Class Mail Postage & Fees Paid LISPS Permit No. G-10 °Sender: Please print your name, address, and 2]P+4inthis box ° �\ C_� �~� �____- Ah Jul 07 2005 2:27PH F orre!j at Law 97CW3-2111 Y vEbE_'jPMENT 11G. 27G9 `, CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT aarcernent for Pb-,;gtebt of C`tv of Amen Deyelontnent Aunlicatioo Fees CIT4'OF ASPEN (nereuttitter CITY) and . Zirt�� (hereinafter APPLICANT) AGREL- .qS FOLLOWS: 1. APPLICANThis submittedto CITY anapp'irnaion for {11�'reina8er, TILE PROJECT) 2. APPLICANT uudersi:.rrds tend zgrees drat City of A_pom Ordnaz^e No 5? (Series of 2000) establishes e. fro strucrurc for Land Use appilimtiorts and the payment of all processing fees is a condr.ion Precedent tp a determination ofappitcation oortipleteness. 3. APPILICAN I and CITY agree rhit because, of tits. Sim, nature or scope of the preposed proaact, it is not poss.ble at this time to awtitaw the Pall extent of the costs :evolved in processing the app!icatiort. APPLICANT and CITE' further agree liar it is in to interest of the panics thac APPLICANT Make payment of an Ln;tia! deposit acd to thert0er permit additional costs to be billed to APPLICANT an a monthly basis. APPLICANT agrees additional costs may accrue fallowing their hearirzs and'or approvals. APP11CANf agrees he will be 'oanef Ltd by retmnin; [;renter cosh ;iquidky and will make additonzi Fayinents upon notification by the CITY when they nro neoessn-y ea costs are iocurrad. CITY aj;Lves it will oo hcner•:cd t'irou4tt the yrcattsr, certainty of recoveria; its full costs to pracoss .APFUCAINT'S application. 4. CITY and APPLICANT further agree that lit is impracticable for CITY staff to complete prow -.sing or presect sufficient information tz- the Plimning Commission zndror Citp Cou:icil to enable the planning Commission andior City Courcil to make, legally required fireings fat ;mc;ctt consideration, unless. eurrent billings axe I;aid is full priar to decision. 3. Theiefore, APPLICANT agrees that in cotrsAeration of die CITY's waiver of its right to colieet full tees prior to a determination of epplieetiOn completeness, APPLICANT shay. pay an initial deposit in the amouait of g&4V!5 which is for _*6,9A:hours of ;'ornrrunity Development staff title, wd if actual rccaided costs exceed the initial deposit, APPLICANT shall pay additional monthly billings in CITY to reltnbarse the CITY for tb,- processing of Ike application mentioned above, including post approval review ate rate of 5220.00 ?er planner hour over the initial deposit. Sach periodic paymfmas steal' be ,lade widtin 30 days of the bill,ng date. APPLICANT fiuther agrees that fa; lute to pay st►ch accrued costs shall be grounds for suspenvon of processing, end in no case will! bu',Iding permit; be issued until all costs associated with case arocessnrg have been paid CITY OF ASPFN 11 his By: -ou I I WL Chris Sendon Community Development Director g:�s uppnrtltorms'�afirpaytos,doc 1�10l02 APPLICAN 01 byr Mstitng Address: p.5 EFTA POR PERMANENT RECORD • 0 C>(4v-1 - KCW 4,, aw, Jul 07 2005 2:20PN •I JL 7.2(05 2:'�3PV, nttorney at Law C��y1;Y !1c'dEL�PNEIV? 070-963-2111 0 Q.2149 P, E p.6 0 APPLICANT. Name: Location: '�iy (� Parcel ID # REPRESENTA N atne- Address: Pl)one of. ATTACHMENT 2 —LAND USE APPLICATION & ble 7Cr n where h�t►m e: Add: ess: Phone A. TYrt OF APPLICATION.- (PIMSC check all that apply) ❑ Conditional Ilse ❑ Special ❑ Conceptual PUD Conceptual Mii$tcxtc Dent. Review Q Design Review ❑ Fina; PUD (& PUD ",werdment) ❑ Final Historic Developrncnt A.ppenl ❑ G1v1QS ❑ Conceptual SPA ❑ Minor Historic Dcvt. Allotment ❑ Final SPA (A SPA Anxadmew ) ❑ i-Ciatoric I)ernalition ❑ GMQS Exemption ❑ SumYISiorl ❑ Historic Designation ❑ ESA - 9040 Crcenliae, Stream Margin, Anllam Lake Bluff, ❑ Subdivision Excmptii l (i►►elt1des ❑ Small Uodge Conversions Mountain View Plane cordominklmization) cxl;a.nsion ❑ Lot Split Lot Lino A;jjustme;,t Q ❑ 'Temporary Use TGxG'%1an.4mencimwr,r [ Otlier. CONDITIONS: (dCScriptioli of &xi PROPOSAL; (description of nrosed bmi etc. et c. Have you attached the foiEowjng? FEES DUE; S HPre -Application Conference St mmuy w #� Attacment#l, Signed Fee Agreement ❑ Response to Attachment #3, Dimensional Regtsiranents Form►Wok ❑ Response to Fttachment 4, Submittal Regttiroincffis-IncludingWrit=Responses to Review Standard r All plans that Are larger thAn 8.5" x 11" must he folded and a flloppydish with an electronic copy of211 wtttteu text (Mierosoff Wald Format) matt bt submitted as part of the application. RETAIN FOR PERMANENT RECORD Susan Capiel/Collin 400 McSkimming Road Aspen, CO 81611 September 21, 2005 Community Development Department City of Aspen 130 South Galena Street Aspen, CO 81611 Re: Lot 1, Block 3, Aspen Grove Subdivision Dear Community Development, I am an owner of Lot 7, Block 2, Aspen Grove Subdivision which is located directly across the street from Lot 1, Block 3 Aspen Grove Subdivision. I will be affected by the granting of the variance requested by the owner of Lot 1, Block 3. 1 will also be affected by the "interpretation of text" of the land use code recently granted by the community development director concerning the definition of front yard or front lot line on such Lot 1, which would make the requested variance unnecessary and would allow the development desired by the lot owner to proceed. One only has to drive up McSkimming Road to notice that all our neighborhood homes are situated behind the 30 foot setback and mostly with trees shielding each from the roadway, which minimizes the visual impact of each structure. The unusual shape of the lot in question demands a better mitigation effort so that one will not have the impression of 'running into a wall' as you drive around the curve traveling up the hill. 1 have attended both hearings of the Board of Adjustments, and others which have been postponed, to bring your attention to this matter, along with my neighbor, Rufus Crockett, and other concerned citizens of our subdivision. Rufus offered to file an appeal of the "interpretation" and since we do not have assessments or an executive board of our homeowners association, I agreed he should proceed with an appeal. I would like to join with the appeal filed by Rufus Crockett as I am a directly affected homeowner, residing right across the street from the proposed building. tincerely, , Susan Capiel/Collin • • Catherine Garland 318 McSkimming Road Aspen, CO 81611 Community Development Department City of Aspen 130 South Galena Street Aspen, CO 81611 Re: Lot 1, Block 3, Aspen Grove Subdivision September 24, 2005 Dear Members of the Department of Community Development, I am the owner of Lot 10, Block 2, Aspen Grove Subdivision located across the street from Lot 1, Block 3 Aspen Grove Subdivision. I will therefore be affected by the granting of the variance requested by the owner of Lot 1. I am also affected by the "interpretation of text" of the land use code recently granted by the community development director concerning the definition of front yard or front lot line on such Lot 1, which would make the requested variance unnecessary and would allow for the development desired by the lot owner to proceed. I have attended both hearings of the board of adjustment on these matters along with Rufus Crockett, my neighbor, and approximately twenty-five other concerned citizens of our Aspen Grove subdivision. Rufus offered to file an appeal of the "interpretation" and since we do not have assessments or an executive board of our Homeowners Association, I agreed he should proceed with such an appeal. I would like to join with this appeal as filed by Rufus Crockett since I am a directly affected homeowner, residing across the street from the proposed building. Sincerely, J 1✓���� V t/ " v L Catherine Garland 0 0 Vincent K. Partyka 334 McSkimming Road Aspen, CO 81611 September 26, 2005 Community Development Department City of Aspen 130 South Galena Street Aspen, CO 81611 Re: Lot 1, Block 3, Aspen Grovc Subdivision Dear Community Development, RECEIVED SEP272005 BUILDING ASP I am an owner of Lot 11, Block 2, .Aspen Grove Subdivision which is located directly across the street from Lot 1, Block 3 Aspen Grove Subdivision. I will be affected by the granting of the variance requested by the owner of Lot 1. I will also be affected by the "interpretation of text" of the land use code recently granted by the community development director concerning the definition of front yard or front lot line on such Lot 1, which would make the requested variance unnecessary and would allow the development desired by the lot owner to proceed. I have attended both hearings of the board of adjustment on these matters along with Rufus Crockett my neighbor and other concerned citizens of our subdivision. Rufus offered to file an appeal of the "interpretation" and since we do not have assessments or an executive board of our homeowners association, I agreed he should proceed with an appeal. I would like to join with the appeal filed by Rufus Crockett as I am a directly affected homeowner, residing right across the street from the proposed building. Sincerely, Vincent K. Partyka 0 AGENDA • ASPEN BOARD OF ADJUSTMENT THURSDAY, SEPTEMBER 15, 2005 Special Meeting 4:00 PM CITY COUNCIL MEETING ROOM I. COMMENTS A. Commissioners B. Planning Staff C. Public IL MINUTES III. DECLARATION OF CONFLICTS OF INTEREST IV. CONTINUED PUBLIC HEARING (05/19/05 & 06/09/05) `lk A. Case #05-04. Appeal of an administrative decision regarding the setback for Lot 1, Block 3, Aspen Grove Subdivision. B. Case #05-02. Request for a twenty (20) foot front yard setback variance for the construction of a single-family residential dwelling unfit and a thirty (30) foot front yard setback variance for the proposed driveway and associated retaining walls for Lot 1, Block 3, Aspen Grove Subdivision, Warren Maple, LLC and David Maple, LLC. V. ADJOURN V une 09.2005 Case #05-02 Request for a thirty-foot (30') front yard setback variance for the construction of a residence on Lot 1, Block 3, Aspen Grove Subdivision ............... 2 Case #05-03 Request for a twenty-six (26) foot front yard setback variance for 102 Eastwood Drive, Kyle Boyd Residence.................................................................... 2 MINUTES................................................................................................................. 5 • ASPEN BOARD OF ADJUSTMENT MEETING - MINUTES June 09, 2005 Rick Head opened the Board of Adjustment meeting in Council Chambers with Charles Paterson, Peter McClain, Howard DeLuca and Jag Pagnucco. Mark Hesselschwerdt and Elizabeth Atkins were excused. Staff present: Jennifer Phelan, Community Development; Sarah Oates, Zoning Officer; Jackie Lothian, Deputy City Clerk. CONTINUED PUBLIC HEARING: Case #05-02 Request for a thirty-foot (30') front yard setback variance for the construction of a residence on Lot 1, Block 3, Aspen Grove Subdivision. Rick Head opened the continued hearing on Lot 1, Block 3, Aspen Grove Subdivision for a 30-foot front yard setback variance for a residence and proposed driveway. Sarah Oates said this hearing has been postponed until July 14th. Motion: Charles Paterson moved to continue Case #05-02 to July 14"; seconded by Peter McClain. All in favor, motion carried. PUBLIC HEARING: Case #05-03 Request for a twenty-six (26) foot front yard setback variance for 102 Eastwood Drive, Kyle Boyd Residence. Rick Head opened the public hearing for a 26 foot front yard setback variance for a home at 102 Eastwood Drive. Dylan Johns representative for the applicant provided the notice and mailing. Jennifer Phelan distributed an email supporting the variance application and an amended resolution with the corrected date and name. Phelan stated the zoning was R15b and the applicant requested a variance from the required 30 feet to 26 feet for the front yard setback. Phelan said there were 3 standards the applicant should meet for a new single family residence were (1) consistent with the purposes, goals, objectives, and policies of the Aspen Area Community Plan and this title; (2) minimum variance that will make possible the reasonable use of the parcel, building, or structure and (3) Literal interpretation and enforcement of the terms and provisions of this title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district, and would cause the applicant unnecessary hardship or practical difficulty for the applicant. Staff recommended denial because the variance request met only standard #1 and a garage is considered an amenity and not a necessity. 2 ASPEN BOARD OF AJUSTMENT MEETING - MATES June 09, 2005 Dylan Johns provided a brief history of the zone district, which was annexed into the city in 1987. Johns said the intent was not to create non -conforming structures; the property line was on the other side of Eastwood Drive. Johns utilized drawings to illustrate the existing house and carport placement on the site; a good portion of the house was in the 30 foot setback. Eastwood Drive was only 16 feet wide, which could cause some safety issues compounded in the winter with snow removal on a steep slope. Johns said the proposed design places the garage in the setback with the doors perpendicular to the street. Johns said the proposed driveway entry would allow the vehicle into the driveway and exiting backing the vehicle out into a hammerhead turn around then out onto Eastwood Drive. Johns said if they put the garage back they would create a 30 foot driveway, which would not be adequate for a turn around. Johns stated the entire living space was behind the setback, which brought the mass back away from the street. Johns provided 3 dimensional images from Eastwood Drive; the floor of the garage was about 2 %2 feet below Eastwood Drive, which would be lower than the existing carport a built up structure. Johns said highway 82 was below this lot; he said that they wanted to be respectful to the corridor of highway 82 to keep the house from overhanging that part of the road. Johns said they interpret reasonable use as also safe use and believe that the design proposes the nunimum variance, which would create a safe driveway condition. Johns said that they did not think by granting this variance it would grant any special privileges. Rick Head stated this was brand new construction and was different than trying to squeeze something on an existing house; this was a clean pallet. Head noted the whole design could move down the hill a little. Johns said if they moved the house and garage back it would create the 30 foot driveway significantly below traffic to back out into on Eastwood Drive. Johns said the area is also a nice Aspen Grove. Howard DeLuca said that he agreed with Rick that there are ways of moving the house down; the grade goes from 80 to 86. Head noted the new design was not anymore invasive as the old house was now. DeLuca said the minimum variance was looked at normally; the garage sits 6 feet lower in elevation than the road and the survey shows another 4 feet to the dwelling so it was between 10 and 12 feet lower in elevation. DeLuca said if the entire house was moved 8 to 10 feet down the hill there would not be any situations created and the variance requested would be less than what was requested now. DeLuca said that would be a reasonable request versus the ultimate request of the garage in the setback. Johns said they wanted to keep the house as far away from the crest of the berm as possible so that 3 USTMENT MEETING - MINUTES June 09, 2005 it was not impacting the community at large and reducing the non -conformity on site. Public Comments: Eric Musselman said that he was an attorney for a homeowner across Highway 82. Musselman asked if the berm was inside of the orange building envelope. Johns replied that it was. Musselman asked if they would build up to the berm or over the berm. Bill Pollock, Zone 4 Architects, utilized a photo to show the proximity of Highway 82 with screening. Johns said that if they moved the house 10 feet they would be close to the berm. DeLuca asked the setback from Highway 82. Johns replied that it was a typical rear yard setback. Jag Pagnucco said that Eastwood Drive was a non -conforming road, which impacts the setback. DeLuca explained that buying a non -conforming property was not a hardship; you can not create your own hardship. Charlie Paterson said that there was a practical difficulty in trying to design this house. Paterson said moving the house towards Highway 82 was a disservice to the view plane and to the building because you are closer to the highway noises. Paterson said there was a safety issue with the backing into Eastwood Drive. Paterson suggested a one -car garage rather than a two -car garage then it would not be as great in the setback. DeLuca agreed with Charlie about the safety issue and the one -car garage to lower the impact. DeLuca said this was a brand new house and did not think that the variance should be as extreme as requested. Jag Pagnucco stated the variance requests were always case by case and he said that he would approve this variance. Peter McClain stated that he liked the design of the house and did not think because of the safety issue and the narrowness of the street he would vote for this variance. Motion: Charles Paterson moved to approve the request for a twenty-six foot front yard setback variance for the construction of a garage and residence at 102 Eastwood drive finding that the review standards have been met. Jag Pagnucco seconded. All in favor, approved. El ASPEN BOARD OF AM, ETING - MINUTES June 09, 2005 MINUTES Motion: Charles Paterson moved to approve the minutes from May 19, 2005; seconded by Peter McClain. All in favor, approved. Howard DeLuca resigned from the Board of Adjustment because he is moving to Basalt. J ie Lothian, Deputy City Clerk 5 ASPEN BOARD OF 20JUSTMENT MEETING - MINES July 14, 2005 Charles Paterson, Vice -Chairman, opened the special Board ofAdjustment meeting for Case #05-02 the request for a 20 foot front yard setback to construct a dwelling and driveway on Lot 1, Block 3 Aspen Grove Subdivision. The applicant requested this meeting be continued to August 18, 2005. Tckie Lothian, Deputy City Clerk 1 ASPEN BOARD OF *JUSTMENT MEETING MINES A The applicant requested this meeting be continued to September 15, 2005. ckie Lothia , Deputy City Clerk