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HomeMy WebLinkAboutcoa.lu.ca.Aspen Grove Sub.0049-2005._,., City of Aspen Community Development Dept. CASE NUMBER 0049.2005.ASLU PARCEL ID NUMBER 2737-07-3-48-001 ~~ f PROJECT ADDRESS 214 E BLEEKER ST PLANNER CHRIS BENDON CASE DESCRIPTION REPRESENTATIVE APPEAL OF ADMINISTRATIVE DECISION -FRONT SETBACK O1` DATE OF FINAL ACTION 11/7/2005 CLOSED BY Denise Driscoll 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 /' ~ 2~ ~~ ~ C~~ ~ n_,/ ~ €dR Bettrd CCavigata ~ Reporss Fu6M[_Zab ye¢i ._.. _.. __ _. _. _ ~e~ . . _..... _. . _._ _._ .. ~m ~dtbnx ~ Sub eamils ~ yai,alwn ~ Pu¢6c Gambol ~ Altec77menta Ajain ~ floyxg Status ! t ArdUErtq 1 Paras)r ~ Custom Fidaa ~ Fmg ~ Foe Summary ~ $ouom ~ RaRnyJ;7rctaq Pemtit Type aslu ~~-: Aspen Lard Use 2004 PaintO 00462WS.ASLU ~'. Ad#esa 274 EBLEEKER ST J ApVSule City ASPEN ~ ~ State rCO ~~ Z4 61671 J Pemrf lrlorma6on _. ...,. ---- _... ..,.,_.. _... _.. __ _. Masts Pemd ~~ ~ RaAng Queue ~~ Appied 06/76/2005 Prajed ~ SIMus ~_- Approval Dercripion OFAllMIN15TAATNEDECtSLDM ;FRONI',6ET6ACIS Issued fnal~ 5ubndled OSEPNE EDWAflDS X2117 Cbdc flumig Dayc~25 Egwas 0 617 1 120 0 6 (° ~s~b on the web3 Pants ID: 34677 _.. Ovxrts __ ...... _.._.._ _..__ .. _____ ____. ..__. .__._. Last Name CROCKETT RUFUS '~ FislNmro~ PO 60X 3837 ~m._~~ PEN C081611 y... '. Eller dm RearA desaylian .... , 'k/xw .,.. Racal l d l ~i ~.,«~ ,. ~/~ ~~~, ~~-~ o~ ,~~~~~ ~st~ ~ Sites ~~!~( l j SJi~~ ~Pi71 `r PrcY) k~2~s . ~/ ~` /lrl~~~ Coi~ccrrl~ W~ ~~,~it~cP- /lr-~ ~~r. (,off ~f ~ d<c~ ~~i~ .~ f ~J L~.fL ~a~e~.-~j S~~s ~ r~ ~f ~ ~~ ~~ , F p~ .~,~„ - I ~. ~tw,rM ~~ ~~f~~ r((~ I~~InnNNyy M ~VIG~J ~~y~ 111. w+ 'flee' w a~'~lN4f ~~. ~~« ,, ~~ ~, MEMORANDUM TO: City of Aspen Board of Adjustment 1 ~ ~ ~ ~~ FROM: Chris Bendon, Community Development Director (J~ ~~ ~ t 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 pazcel. The Front Yard (setback) of a property is defined as "the yazd extending the full width of a lot or pazcel, the depth of which is measured by the narrowest horizontal distance between the front lot line and the nearest surface of the principal building at grade." A pazcel'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 yazd..." The code also dictates "the rear yard must coincide with the reaz alignment of neighboring lots regazdless of which yazd is considered the reaz 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 yazd must be measured from the lot line adjoining the neighboring property. This would ensure that the reaz yard would coincide with the reaz yazds 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 particulaz 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 Boazd of Adjustment. hi 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 Boazd 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 Codej 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 particulaz 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 particulaz 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 cleaz 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 prepazed 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. 2 fM 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. Edwazds 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 Gmve 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. ~~ RESOLUTION N0. 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 Rufus 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 I .~. ..., ~ . 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\Intetps\McSkimming appeal Reso-B.doc COA BOA Resolution No. 4, Series of 2005. Page 2 Jul 07 2005 3:47PM P`torney at Law °70-963-2111 p.4 LAW OFFICE /~•~~~'~ JOSEPH E. EDWARDS, P.C. 14 FENDER LANE CARBONDALE, COLORADO 81623 JOSEPH E. EDWARDS, JR. e-mail: jceedwards~sopris.net June 14, 2005 Chris Bendon Community Development Director Aspen Community Development 130 South Galena Aspen, CO 81611 Re: Lot 1, Block 3 Aspen Grove Subdivision Dear Mr. Bendon, TII.EPHONE (970}963.2111 FACSIMILE (970)963-2111 Rufus Crockett, as the owner ofLot 13, Block 3, AspenGrove Subdivision, as an affected neighbor, would like to appeal the administrative interpretation that the front yazd of Lotl, Block 3, Aspen Grove 5ubdi~ision, 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 arule ofinterpretation is one whichgoverns the ascertainment of the meaning of the maker of the instrument. (See Eahibit A ] Therefore the director has authority to explain the meaning ofthe text ofthe Land Use Code, but he does not have authority to construe the effect that such meaning may have in a particular case. Aninterpretationoftextbecornesnecessaryifthetextisambiguousorotherwiseuncleaz. However, if code language is clear and unambiguous there is no need or justification for any further interpretation.The code in Section 26.7 04.100 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 cleaz and unambiguous. In this Jul 07 2005 3:47PM P`-*_orney at Law ~?0-963-2111 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 McSkimming 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 defmvtion of the Front Lot Line. The 30 foot front Yazd setback requirement for the R-15H zone makes the narrow southerly finger extension of the lot into the area between the switch back of the toad 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 trne purpose of which is to avoid the application of the cleat code restriction against building in a front yazd as defimed 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 Fmnt Lot Line of the Lot as Side Yazd Liries. 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 particulaz 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 defmition of a Front Lot Line shall only apply to a very small part of "the line cl osest 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 yazd than is created by such text definition. Even if he had such authority, the tiny defined front yazd 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 defmition 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. Tn 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 tum 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. T'he Front Yazd is defined in Section 26.104. I00 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 aoound the curve and is not to be built upon. The very small front yard of only thirty feet back from just the southerly hairpin tum of the road is contrary to the text defmition of Front Yazd (it does not extend the full width of the Lot) and contrary to the text defmution 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 P`~torney at Law '"'0-963-2111 p.6 3. The applicant, in support of a pending variance request and the request for the code text "interpretafion", 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 ofthe 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 squaze feet of lot azea 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 uulityrights 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 E]. 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 tights" exist and is a constraint, there is still an area of approximately 1800 to 2000 squaze feet that could be used as a building site for a residence on the north end of the tot. 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 pazcel which the principals of applicant also own. Therefore the applicant sought a variance from the front yazd 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 oftheir adjacentresidence.That variance application was unanimously opposed by all neighbors, so the variance hearing was continued while the applicant sought an alterative 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 ofwhat is really the defined Front Yard Line. The applicant can make reasonable use of Lot 1 without the need for a vaziance 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 8]611. Jul 07 2005 3:49PM R.*torney at Law 9?.0-963-2111 p.7 L ~ w; C EST, I)T.1sES MAGiB VALEAT,..@U A PEREAT. The interpretation o1 deeds; >s to b ttberal, that the thing may rather have effect 1a11 ID•dom, Max, 543, INTIBRPBETATIO ~I'TEIYDA E3T IJT BF.S DSAG- ~ VALEAT~ @DAitI PEHEAT. Tenk: ~ Cent 298, Such~aninterpretatron 1s to tie adopted that the thing may rather stand than tall. 7NTEliPBETATIO TAL78- W AMBIGUIS SEM- PERPTEN'7DA EST VT EVITETUA INCONVEN- IENS ET AB9UltDUM. In cases 01ambiguity, such an Interpretatlonshould~always be made-that what 19 inconvenient andabsurd may be ayoldeti 4 ~Inst 325: :_ INTEBPEETATION_ The art or process 01 ttis• covering and-esipounding the meaningol a~atat- ute, will, contract, or other wrt€ten- tfocument. People v. Com'ra o1 Taxes, 95 N,Y. 559; Rome v. Knot, 14How. Prat„-N.Y., ~2T2: Ming v. Piat* 22: Mont. 262, 56.-P. 279; Tallman v. Tallman, 3 Mix. 465. 2$. N,Y,S: 734: Roberts v. Portland- Wa- ter Dlet.,.124 Me. 63, 126 A. 182, 163- Cohn-HaIl• Marx. Co..v. Vanorda7l, 25.Ohlo App. 360, 157N.E. 908. 909. - The discrovery and representatlon o2 the true meaning of any signs used to rnnvey Ideas, I,ieb. Heim. "ConetrLCtlpn" to a feral of wider scope thm•'Intarpre- tatlon;" tor,.7hlle the letter la concerned only Ntth aaeeF talning thn aeiue eafl mmning of the avDleM-matter,.. Ole torto~ poayeleo fro"directed to exDlalning the Ieaal eaeets and consequences of thalnetrument In quernen- Henee tmen~t~ tauon ~DSecedea conslrnctlon, Dyt aWpa at iho writ. No eoluta3 proceeds simply on the a 7e a'rpreta tarpretatioa fa 8 neral dplesoi 1n good 1a(th, natbound by anysPeciHc,orsuperlorprlnciple. Lieb. Herm. 59. Limited or res3ricted interpretation (intarpra ft[tio iimttata) 1s wheli the axe influenced by other 9 Interpretation end cenatracyon o2 wrltlen 2nserumenD~ era no[ the same. A rule of conatrucn`gn la one wh1cD eitDer Governs-the elect of en ascertatned lntmuon, qr point out what. the eourt should do N the. eDaence of espcta3ot implied intantlon, whlle n rule of lnterpretatlon [e. one which kovernti the aaeertalnment of the meanmaot t8e. maker or the Inatrulnent. 10 _r! UNOn '1'suat (a.; 151 N.Y.51, 2da, 249, EB ~tdlee sa ~. Cios! inierprrttat{on(lxtappretatio restrlcta)fa adopted t; )usrc reasons, connected with the for- mation and character o1 the text, Induce us to sake the woide fn their narrowest meaning- This. peeler o1 interpretation has generally been celled 'literal," but the term La madmisalble. Lleb. Herm. 54: Extensive itlterprstation (istterpretoti0 exten- sive, called, ayyo,. "liberal interpretation") adopts a more comprehensive s€gnlflcatlon 01 the word. Lteb. Herm'. 58.-: . Hxeravagant..itlterpratotiot[. (Intarprstdtio~ ax... cedsne) is that which-sutisdttites ameatdng ev!- dently beyond. the trt~- one. It IS therefore not genuine InterpretaMba L1eD. Herm. 39: Free or wtreahioted irttorpratation (i t ~'PR~'1'~O -- ~NTER~80tiATORIE3 - piiadples than .the strictly here A8I I,Ieb:.Heral. 6Q - e Predestined tntsr than daptit[ata) takes pratat4on tints under a atron ~~ [S the interp: servient to h1sb1~ ~~ mind, make: Th1s includes arttptAreconCelved visa vajer,) b interpretation, Y which the Interpreter se meaning to the text other than the to have been Intended, L1eb, Herm It !s sold td be efther'7egal;' whlc same authority as- the taw icaelt, d which rests upon its intrinsic reason Bal interpretation may be either °aut it Is-expressly provfded by the .legit ual; -when it is derived 4om unwrl of words aad~aentences, when~lt~lsn matical," or on the intention of tl when it is described es "logical." {V1 oho e~itslobvious~meening, it Is called when, on the other hand, Lt avoid: meaning to the words. m prder noti the lntentlon o1 the legislator, it 1s r t1ye." Holl. Jur: 34$_ As to strict aril Ziberal interpretat struction, In the civil law, authentic Interprets Is that given by the legislator hllasl obIlgatoty, on "the courts Cuatomgtl lion (also called "usual") !8 that...'6 from successive or concurrent dee{s trourt onthesame subjec4matter;'fia to the sp[rlt of the law, ]m'lapcud'et and equity; as dlstiagulshed from ~"ai terpretatlon, -which fe that given by.tfi himself: Houston v. Robertson, 211 1NTEHPBETATION CLAil3)~ p ae statute which defines the meaning; words occurring frequently is the. otli INTESPRETEE.. A '"''~ interpret the evlden person sworn.. of anddumb ~ oL a Sorelgne Person to the-court Amory`. 5 Mass. 226; People v. Lem Deo, 13Z i P. 266, INTERBEI}NVM. An Interval betty, The period which elapses between the sovereign and the election o1 another aancy which occurs when there is no g IN'J'E880GATOISE, In Fy'ench ~laa which contalaa the interrogatories to judge 1n the person accused, on~ the f ate the obJect of the accusation, and k of the accused. Poth. Proc, Crlm. c. 9, INTEB$OGATOIi1ES, queatrons drawn u h Polmded to e witness mh a set3es oZ t. Judtdal a taking evlden g 54 - A set or IT Jul 07 2005 3:49PM P.'Lorney at Law °~'7~-963-2111 p.e s c ,,,f'u '3z`..i1 ~,~?+~A~~~Y~':lFRcxnh'~'~hT& ~ x .. ~ ~ ,~e Y ?~ N.PM1 ~''x ..1% ~r 4 _ a r~ rd+ t ~i y.y,JjS~~. S: x H.i~ li: ~. li l {Y .~'`w i~S. G.. ~ ~' .'Y.~5i3 'y .rr~~ ~_ OV ~ E1o ~e;~e$ ~ ~ e 8~ ,;£ ~. ~i a 4p ~ Fr, (`, f ~~ h p ~~~~~! • y~. L ~g6a y. ~~i~"i .3e~ ~4i ~~03F S • ~ t{ ~ _I ~k?, ~h'~~ ~-~° , ~,, °~ z F~a , ~ ° , ~ iii . hO~Q7W`s ~°1€~ $!~Z E`E ~f,` ~r i~I+r ~r7,-v: ~~r O ~ v ~ ~A ~ y ~~ ~~1 $~3~Pq .C3~ ~ Ti~ ~~~ 1q t. O 3 a ,F Z 3`; ~ ~ J' 11 ~ ~ ~~°; a a~ ~ ~, ~ ~ ~ ~3fejd~ •~~ ~~ ~i ~~s~ ~ E , WO a~~bN~ ~~ c~e~ Y$C ~' dig ~ E~ 4 m s ~~-- ,~ ~- ,~ m i ..a:- .~ ._ _ e ah.` I. 4 pa ~: s {j y 1 ._ '' .~c~ -~ ., ~` ._ /~~ F ~ R +'~ x. `C ~~\ l '7 r ;~ •~'Z' °t I II _ h? ~ .. ~\ ` ~" ,` ~ 1 -~! 1 1 ' ~ ' ~t ` ~\ 4 \ ` X ~~ ~i ~C~~\ ~\ EXHIBIT '~ Jul 07 2005 3:49PM 1 ,~ I i'. ~„ ~. P'~torney at Law :: _ -, // i i i ~ ~.~; ~ f. ~ -~~ i ~ /! ~ ~ v ~ ~ ~/ ~ ~\ 1 ,,;:~, 1.T i 1/ ~ 1!, I ', i o- ,. ~ ,',, . ~, '.~ ~1 .1 I ~ ~':,~ ~ !' ' ! 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Jul. 06 2005 01:07PMO~P2 r7 • ~, ~ ~~ CITY OF ASPEN '~OO'~ •y.:,. ;.r' • eTT PAID WRETT PAID -r NEP NO. %~d~~~y (t.~(G ;~./~I'1 DATL REP NO. 9/~'.~Y ~W~ ~ iUi 9 SPECIAL WARRANTY DEED THIS DEEb, Made September 21, 2004 between THE .!ONES FAMILY PARTNERSHIP, LLLP of the County of ARAPAHOS and Slate of CO, of the first part, GRANTOR and NfARREN MAPLE LLC, A COLORADO LIMITED LIABILITY COMPANY AND DAVID MAPLE LLC, A COLORADO L!MlTED LIABILITY COMPANY whose legal address is: b65 So. Broadway, Suite 200, Denver, Co of the County of 80209 State of Ca, of the second part, GRANTEE W ITNESSETH, That the said parties o1 the firet paR, ror arM in consideration of the sum or Ten ddlars and other good and valuable oonslderetlona, to d,a Bald pontes or the firstpaR, in bend paid by the sold ponies of the second pan, the receipt wharsor is heroby confessed and acknovAedged, has granted, bargained, sold and conveyed and by These presents do grant,'.bargain, sell, convayand canfum unto Me said parties of the second part. its Successors and a4elgnt forever, sIF•Ihe follovring dssaibed lots or parcel Of land, sltuete, lying qnd being in th0 County of PITKIN and State of COIORADO,.IO wit ^. LOT 1, B,~OCK 3, •..: Pa Pe 9GROVE SUBDIVISION, acco , -' 8 ,.... riling to the Pht thereof recorded in !?itch, Book 2A at Together with all and singular the heredltaments end appurtenances Ihero-unb belonging, or In anywise appertaining, and the reverelon and revgrsans, reinainder.and remslnderc, rants, Issues and profits thereof• and all the estate, right, lNls, inlaraal, elaim;and dertreitA urh8litQ@vet; d the said parties of the flrsl part, elthsr in taw or equNy, of, in and tc, the above.: bargained premise's, Vvilh'tiie heredilamerrta and appurtenances; TO HAVE_AND TO HOLD th®"iriid'pr9riilses atimie~bargajiiad aril described, wllh the aPl>urtanances, uMo the said partiws Df N,e sedond peR, Ns successon qnd easigha~ forever. And the sold parties of dre Ilrs1 pert for themselves, their heirs and asalgni d0 covenant, grant, baryaln end agree to and vrNtF'tlie said paAhs of the seoontl pert, their successors end saslgns, the above bargained pramiftas In,the oluiet and peaceable poseeasion of said paRles o}' ' the second paA, Its successors end assigns, against all and every person or persons lawfully tdeiming or to dalm the whole or any part thereof, by througfi 'or under uta said parties of the first part to W ARRANT AND FOREVER DEFEND. The singular shall Indude the plural,lho plural the singular, and Meuse o/ gender shall Da applicable to ell genders. IN WITNESS WHEREOF, the sold parties of Me first part have harewto eel uteir hand(s) gntl Seal(s). SICiNATURE3 ON PAGE 2 IIEUI~II~LI~I~~NII~~ 5m~lzsi~ ez:ui N~VJO DAVE! PRICrN ceuNTr CO R 11.00 D N.67 .w.~n,n raI 307.1$0 i N<'Imll ~INIIY111tE INC - T~ISiER DECLARATION RECEIVED 09IT UTlEO t~ef a rrohaNe ~-ve,. EXHIBIT Jul 07 2005 3:SOPM P'~torney at Law FRpT1 Panasonic FRX SYSTEM ~: [~` PMONE NO. 4?0-963-2111 p.ll JuI. 06 ?005 01:07PM P3 IIq~101110111p WR101N If11ryI ~IN II~I~I a i'2 Z$~02•ni ftwtx anvls viiKtx Nwm' ca R ItAO D 86,87 PAGE 2 TO SPECIAL WARRANTY DEED SIGNATURE PAGE THE JONES FAMILY PARTNERSHIP, LLLP ~~ ~~'~ via Jones Je a art r Trustees of the Olivia Janes Revocable Trust ula/d Dece r 24, 003, General Partner STATE OF ~af.OAACaO ) COUNTY OF ~Na<!~C. )ss The ore Ding instrument.was acknowledged before me this. ~7~ day of , 200 By: THE JONES FAMILY PARTNERSHIP, LLLP, ay: Olivia Jones and Jeffrey Barker, Trustees of the Olivia Jones Revocable Trust ulald December 24, 2003, General Partner, WITNE5S my hand and official seal Notary Public ;: :... ., my eomrmsaion, expires: .7 ;L8 - 48 ; ; . ' Jul 07 2005 3:SOPM R.`-^:orney at Law °•'~d]-963-2111 p. 12 FROM Panasonic FWf SYSTEM PHONE NO. Jul. ~ 2005 01:BBPM P4 _ ~_ SCHED XCHPr oNSTTON 2 L ~~ j I ~~ ~ r~L~C,;~ The policy or policies to be Issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights ar claims of parties In possession not shown by the Iwbllc records. 2. Easements, or daims of easemeple, not shown by the public records. 3.,. Disorepancies, conflicts in boundary Ilnes, shortage in area, encroachments, any facts which a correct survey and Inspection of the premises woultl gfsclose end which are not shown by the public records. 4. ,Any lien, or right t0 a Ilan, for aervioes, labor, or mat®nal heretofore or hereaNer fumkhed, 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 efteclive dgte hereof` but pear to the dale the proposed insured acquires of rewrd for value the estate or interest or mortgage thereon covered by this Commitment 6. Taxes due and payable; and any tax, apeciai assessment, charge or lien imposetl for water or sewer service or for any other spec(el taxing district. 7. Reservatlons and exceptions as contained in United States Patent recorded January 17, 1849 in Book 175 at Page 243. B. Those terms, condkions, provisions, obligations, easements, restrictions. assessments and alt matters as ' set forts b Protective Covenants dor Agpen.Grove'Subdi~lslon recorded August 14, 1968 In $aak 784 at. ,Page 479 (Block 1) and November 12, 1469 in Book 204 bt:?sge 68H {Block 3) end Notice of Declaration ' rarnrdad November 29, 1988 in Book 806 at Page 6d8,, tleletlng therefrom any restrctions indkagng any .. ,pretbh3DCO, Iknitallon or discrimination based pn~igoe, color,'religion, sex, handicap, familial status,.or ..• _ .. ,' . ; ;liatiorial gilgln,. , 9 Easements, rights of viay and a~l'`matter`a as dlsclpsed on Piafs,'pf subject propetty:recorded m DdcMBOOk 2A at Page 248 and Ditch Book 2A at Page 291. '- ' ' 10, Tenns, conditions, provisions, obligations and ail.magers as set forth to Ordinance No. 26, Serbs of 1987 by City of Aspen reeerded Juy 22, 1987 fn Bock $4Y: al Page 979 and Ordinance No. 28, Series of 1987 ;recorded October 1, 1987 In Book 947 at Page 19'1. Jun 14 2005 9:02PM Rttorney et Law Chapter 26.316 APPEALS SCCt10115: 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26.316.030 Appeal procedures. 97C-9t;3-2111 p.5 26.316.010 Appeals, purpose statement. The punnose of this Chapter is to establish the autborit~ of the Board of Adjustment, Grv^rvth b'lanagemetrz Commission, the Planning and Zoning Commission, andCity Council to hear and decide c_rtain appeals and to set forth the proceduzes fvr said appeals. (Ord. No. 17-2002 § 2 (part), 2002) 26316.020 Authority. A. Board of Adjustment. Toe Board of Adjustment shall have the aulhoricy to hoar 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 vazisnce pursuantto Chzpter 26.314 by the Planning and Zoning Commission or Historic Preservation Commission. i B. City Council. The L"ity Council shall have the authority to hear and dec ide the fallowing appeals: 1. An interpretation to the text of this title or the boundaries of the zone district map by the Cantmunity Development Director in accordance with Chapter 26.30ti. An appeal of this nat:are sha Il be apablic meeting. 2, Any action by the Histerie Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H,", Historic Ca+erlay District pursuant to Chapter 26.415. M appeal of this natxlre 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 othcrappcal for which specific authority is net granted to another boazd orcommission as t~yti~ established by this title. An appeal of this nattne shall be a public meeting. i` C'. Planningand Zoning Commission. The Planning and Zoning Commission shall have the authority to hear and decide an appeal from an adverse determination by the Community llevelopmentDirector on an application far exemption pursuant to the , owth management quota system in accordanez with Section 26.470.060(D). (Ord. Ivo. 17-2002 § 2 (part). 2002; Ord. No. 27-2002 § 23.2002) 31 Jun 14 2005 3: G3Pt1 flttorney at Law 970-963-2111 26316.034 Appeal procedures A. initiation. Any person with a right to appeal an adverse decision or determination shall initiate ar. appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Commmtity Development Director and with the cirv office or deparur;ent rendering Cie decision or determination within fourteen (14) days of the date ofthe decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any ri¢}rts under this title to appeal any decision or determination. H. Effect of filing an appeal. Tire filing of a notice ofappea! shall stay any proccedin~s in furtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson ofthedecision-making body authorized to hear the appeal that a stay poses an imminent peril to life or property, in which caso the appeal shall not stay further proceedings. The chairperson of the deci lion making body with attthority to hear the appeal may review such certification and grantor deny a stay of the proceedings. C. Timing of sppeal, The decision-making body authorized [o hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notix of the appea! shall be provided by mailing to the appellam and by publicazion to all other affected parties. (See section 26.304.06U(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 softy upon the record established by the body from which the appeal is token. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its,jurisdiction or abused its discretion. ' F. Action by the decision-making body hewing the appeal. The dccisiom-making body hearing the appeal may reverse, affirm, or modify the decision or dcterminazion appealed from, and, if the decision is modified, shalt be deemed to have all the powers ofthe officer, hoard 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 sppeals shall be public meetings. ('Ord. No. 55-2006, S§ ~, 5; Ord. No. 27-2002 § 24, 2002) 32 Jun 14 2005 9: OSPt1 ti tlrprney at Law 970-9E3-2111 p.? Chapter,2b.306 INTERPRETATIONS OF TITLE Sections: w' ~'~~,1~ 26.306.O10Intetpretation. f7" 26,3b6.010 Interpretation. (~~~~ A. Authority. The Communibj Development Director shalt have the authority to make all interpretations of the teat oft is Title ~~the boundaries of the Zone district map, B. Initiation. An interpretation may be requested by any affected person, any resident oc rest propem owner in the City of Aspen, or any person having a contractual interest in real property in the City of Aspen. C. Procedures. 1. Submission of request fur interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interareta_t_ion shall be submitted to the Community Development Director. 2. Determination ofcompleteness. Within fifteen (I Sj days aficr a request for interpretation has been received, the Community Development Director sha!1 determine whether the request is complete. If the Community Development Director determines the request is not complete, he shall serve a written noeice on the applicant specifying the deficiencies, TIu Community Development Director shall take no further action on the request for interpretation until ttte deficiencies are remedied. 3. Rendering of interpretation. Afterthe request fur i nterpretationhas been determined canplete, the Community Development Director shall ren ' r QusaS~ta within 5fteen (15) days. The Conununity Development Director ma}%consult with the City Atromey and review this Title and the Zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretaiion shall be in writing and shall be sent to the applicant by certified mail. E. Ofticial record. The Community Development Director shall maintain an ot}icial record of all interpretations in the Community Development Deparh-tent, which shall be available for public inspection duria~ normal business hours. A al. Any person Who has ma r Plx _„ ,_ _de a request foCr„p~etatign may ap~real the interpretation ofthe .,ommunity Development Director to fiie City Counci I in accordance with the appeal procedures set forth at Chapter 26.316. 16 .tun 14 2005 9: 06PH Attorney at Law 970-963-2111 p.8 K. written or in u7itin¢. T1te term "written" or "in wrirnv' shat] be construed to include any in- scribed troprt;sentation of words, letters or figuros, whether by printing or otherwise. L. Year. 1'he word "year" shad mean a calendar year lvl. Boundaries. tote rotations reA.ardipg zone ~istrictbo mdaries shall be made in accordance with the follcwine: 1. Boundaries shown as perpendicular to or following, or approximazely following, any street, alley, right-o2-way or water worse shall be construed as pezpendicularto ar fallowing the centerline of the street, alley, right-of--way or water course. 2. Boundaries shover. as following, or approximately following, any platted lot line or otherprop- erty line shal(be construed as following such line. 3. Boundaries shaven as following, or approximately following, section lines, half-section lines, or quarter-section lines shall be construed as following such lines. d. Boundaries shown as separated from and parallel, or approximately parallel, to any ofthe fi:e- tures 1rsted in the paragraphs above shall be construed to be parallel to such features and at such dis- tance rherefrorn as are shown on the zone district map. 26.104.090 Reserved. 2b.104.100 DeBniHons. As use m is code, unless the context othern~ise requires, the following terms shall be defined as fellows: .t n Academic Uses: Fhe use of land or buildings far educational activities with attendant rescarch, ~~ housing, administration; and public venues. Academic Uses may include public or private school, uni- tiv versiry, teaching hospital, research facility, testing laboratory, library, auditorium, administrative of- ,r `^y~ floes, faculty housing, student housing, or similar uses. ~.. Accessory Dwelling Unit (ADU). A decd restricted dwelling tutu attached to or detached from a principa! residence situated on the same lot or parcel, and which meets the occupancy, dimensional and ether requirements se[ forth in Section 26.520 of this Title, and requirenxnts set forth in the As- pemPitltin County Housing Guidelines. Accessory structare or building. A building or other structure that is supportive, secottdary and subordinate in use and; or size to the principal building or structure on dte same parcel or lot. (See, Chapter 26.575. ]4U, Supplementary Regulations --Accessory uses and accessory structures}. I] Jun 14 2005 9: 06PM Rtr.crney at LaW 970-963-2111 p.9 Linked pavilion. An enclosed walkway connecting aprimary structure to an accessoq~ structure. (See Supplementary Regulations--section 26.575.020(A)(8), Linked Pavilion). Lodge. Same as hotel. Loggia. A deck, or porch attached to a living space and open on at least one side developed under a rnof as ar, integral part of tfie building's mass rather than as an appended clement. Lugo. An artistic portrayal or decorative pattern printed or otiterwise placed on an exterior wall, window sign or other exterior surface which maybe viewed from outside the premises upon which it has been placed and which is used or displayed W identify, advertise or promote the premises, a persrnr, business, servicr, organization or product. Long term. The occupancy of a dwelling unit for residential purposes fot a time period not less than six (ti) consecutive manths and shall include rental occupancies, except that two (2) shartertental occupancies n•.ay be allowed per dwelling unit per year. Lot. A defined individusl area or unit of land resulrin¢ from subdivision and reflected on a re- cordedplat approved by the city: or if created and recorded priorto the adop[ion by the city of subdivi- sion regulations, orprior to iu anne?cation into the city, a unit or area of land designated by a separate and distinct ntunber or letter which is illustrated on a plat recorded in the otf'ice of the Clerk and Re- corder for Pitkin ~~ounty. Lot area. The total horizontal area cotrtained 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 shortest horizontal distance between the front and rear lot Tines. Loot line, front. The line normally closest to and,'or diridine a lot from a street or street right-of- way. Lot line, msr. The lot line opposite the front lot line, ~~~ >~ g (};~ nor % c5 '°~y F~Ti Lot line, side. The lot lines other than front or rear lot tines. ) Y~IS`c~ ~N~(L~ ~ r>~ us Lot width. The horizontal distance between the side lot lines as measured along the fro .t yard ~~1 ~ ~~~~ setback tine. 1~Ianufaetured home. A singlefamily dwelling unitwhich is partially or enprelymanufacturcd in a factory or at some location other than the site oT final construction and ins*.a]lation. A ranufactured home is installed on an engineered, pertnanent foundation and has brick, wood, or cosmetically equiva- lentsiding 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 9:09Pt1 Rttorney at Law 970-9E3-2111 p. 10 . (Ord. No. 55-2000, § 15; Ord. No. 1-2002 § 16, 2002: Ord. No. 23-2004, §3; Ord. No. 5, 2005, §21 26.575.040 Yards. The following supplemental regulations shall apply to all yards. A. Projections Into Required Yards. Yards shall be unobstructed from the ground to the sky ex- cept for the following allowed projections: I. Building eaves-Eighteen (18) inches; 2. Architectural pmjcclions--Eighteen (18) inches; 3 Balconies not utilized as an exteror passageway; may extend the lesser of one-third of the way helween the required setback and the property line or four (4) feet. 4. Fire escapes required by the Uniform Building Code-Four (4) feet; 5. Cncovered porches, slabs, patios, walks, retaining walls, steps and similar structures, which do no: exceed tftirty (30j inches above or below natural grade, shall be permitted w project into the yarti without restriction. Projections may exceed thirty (30j inches below grade if deter- mined w be required by the chief building official for tivindow 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 access shall not exceed a depth or height greater than twenty-four (241 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 (3G) inches about or below grade. Parking is only petmitted within required setbacks if it is in an approved driveway or other area approved for parking. 8. Exterior merchandizing. Exterior merchandizing in non-residential zone districts shall be prohibited in all required yard set backs. B. Required Yards Adjacent to Private Roads. All requved yard setbacks under zone district regulations are based on distance measured from the right-of--way lint of a dedicated public way. Where there is no public dedication and the lot fine extends to the centerline of the rightrof--way, the requirod 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 2005 9: 11Pti Rtt,orney at Lew 97C-9E3-2111 p.ll C. Corner Lots. On a lot bordered on hvo (2) sides by intersecting streets, the owner shall have a choice as to which yard shat be considered as the front yard, such yard to meet minimum setbacks for a front yard in that zone district. The remaining yard borderine a street may be reduced by one- chird (1/3) of the required front Yazd setback distance fee the zone district. The rear yazd 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 nvo (2) lots K•hich shaze a cotnmon side lot line are in different zone districts, the lot in rho more intensive zone district shall observe the required yard setoaek dis- tanec as established for the less intensive use mne district E. Non-Aligned Lets. For any Iat in the R-6 zone district in excess of nine thousand (9,000) square Feet which is oat aligned along die traditional Asper: 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 tw1~ (2j longest sides of the lot which are opposite from each ether 26.5^5.045 Junk Yard and Service k'ards. Junl: yards (see definition, Section 25.104.100) shall be screened frem the view of other lots, structures, uses and rights-of--way. Service yards (See definition, Section 26.104.100) shat] be fenced so as not to be visible from the streat, and such fences shall be a minimum six (6) feet high from grade. Ail fends shall be of sound construction and shall have not more than ten (10) percent open area. 26.5?5.050 Fences. Fences shall he 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 public right-of-way shall be constructed of wood, stone, wrought ircm nr ntasotuy. On corner lots, no fence, reuining wall, or similar object shall be erected or main- tained which obstructs the traffic vision; nor on comer lots shall any fence; retaining wall. or simi- lar obstruction be erected or maintained which exceeds a height of folly-two (42) int:hes, measured from street grade, within thirty (30j feet from the paved or unpaved roadway. Plans showing pro- posed wnstructien, material, location and height shall be presented to the building inspector before a building permit fee a fence is issued. Additionally, foliage shall be placed and maintained so That it will not obsQUCt vehicular visibility at in?ersections. ;Ord. No. 55-2000, § l6) 26.5'75,060 Litility/i-raslv'Recycle Service Areas. A. General. The following precisions shall apply to allutility-/trash service areas 1. If the property adjoins alt alle}^Nay, the uiility;uash/recycie service area shall be along and accessed from the alleyway. Unless entirely located on alt alleyway, all utility/trash service areas shell be fenced seas not to be visible from the streat, and such fences shall be six f 5) feet high from grade. A11 fends shall be of sound construction and shall be no less than 90% opaque. 68 Jun 14 2005 9: 12PM Rttorne~ at Law 970.-9E3-2111 p. 12 Chapter 26.314 VARIANCES Sections: 26.314.UIU Purposes. 26.314.U2G .4uthority. 26.3i4.03U Authorized variances. 26.3I4.U4U Standards applicable to variances. 26.3I4.U50 Procedure for variance approval. 26.314.060 Conditions. 26.314.070 Expiration. 26.31.1.080 Appeals. 26.314.010 Purposes. Variances are deviations from ffie terms of this Title which would not be contrary to the public interest when, owing to speciat circumstances or conditions, the literal enforcement ofthe provisions of this Title would result in undue and unnecessary hardship. Vaziances shall only he granted in accordance with the tams ofthis Chapter. 26314.020 Authority. The Board of Adjustment, in accordance with the procedures, standards and limitations of this Clutpter steal l approve, approve with conditions, or disapprove a development application for variantxs to the terms of this Title. If the application for a variance is part of a consolidated application prrx;ess authorized by the Community Development Director pursuant to Section 26304.060(H)(1), the Planning and Zoning Commission, or the Historic Preservation Commission may review the .application far a variance usutg the standards and procedures set forth in Lhis Chapter. 26.314.030 Autrioriud variances. Variances tray only be ¢ranicd from the following requirements of this Title 26: A. Dimensional rcquiranents. B. Permitted uses, but nr.1y to allow for the temporary o8-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 makhrg body shall make a finding that the following throe (3 j circumstances exist: ]. The grant of variance will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Community Plan az~d this Title; 2S Jun 14 2005 9:13PH attorney at Law 970-963-2111 p. 13 2. The grant of vaziance is the minimum variance coat will make possible the reasonable use of the parcel, buildin> or structure; and 3. Literalinte~retationandenforcementofthetermsandprovisionsofthisTitlewoulddeprive the applicant of rights comrnonly enjoyed by other parcels in the same zone district, and would cause the applicant unnecessary ha: dship or practical diffculty. In determining whether an applicant's ri ehts would be deprived, the board sha71 consider whether either of the following conditions apply: a. There are special conditions and circumstances which art unique to the parcel, building or structure, which aze not applicable to other parcel, 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 zny special privile¢e denied by the Aspen Ama Community Plan and the terms of this Title to other parcels, buildings, or structures, in the same zone district_ B. In order to authorize z variance from the permitted uses of Title 26, the appropriate decision making body shall make a finding that all of the following circumstances exist: I . 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 x variance would cause the applicant unnecessary hardship orpracticat difficulty. 3. The temporary off-site storage er construction 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 drt or"f-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 prirvision is made to restore the subject parcel to its original conditior, upon expiration of the variance, including the posting of such financial security as deemed appropriate and necessary by the appropria~e decision making body to insure such restoration. (Ord. No. 27-2002 § 7, 2002) 2ti.31A.050 Procedure for variance approval. .4. Initiation. A development application fur a variance may be 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 development application to the Community f)evelopmentDirector in a fo rmestablished for such pulses. The Community Development D hector 29 Jun 14 2D05 9:15PM flttorney at Law 970-9E3-2111 p. 14 shsil 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 applicativn for a variancc: A public heazing before the appropriate decision making body. Koticc requirements: Publication, mailing and posting (See sectivn 25.304.060(F.)(3}(a)--(c}}. D. Decision-making body action. At the conclusion cf the public hearing, the appropriate decision msking body shall determine if the application meets the standards of this chapter, and sha!1 issue a resolution to approve, approve with conditions, ordisapprove the application for a variance. (Ord. No. 27-2002 § 8, 2002) 26.314.066 Conditions. The Director of the Community Development Deoartment may recornmend and the appropriate decision making body may impose, such conditions on variances as are necessary' to acc:ompl ish 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 storage of materials, stntcttues or equipment putsuant to building construction or construction staving shall commence and terminate vn dates certain as established by the appropriate decision making body and shall not relieve an applicant from obtaining all necessary building permits. 26.314.070 Expiration. A. Rxpiration. Unless vested as part of a development elan pursuant to section 26.308.010, and e u:eptas otherwise established by theappropriate decision makingbody, a variance granted underthis chapter shall automatically expire after twelve (12) months from the date of approval unless development has been cotmncnccd as illustrated by the issuance of a building permit. B. Extension. The appropriate decision making body may grant a one time extension of a variancc for ttp to twelve (12) months. AI] requests'or an extension must be submitted prior to the expiration ofthe existinc development order, must demonstrate good cause showing that ctrl extension is necessary, and must demonstrate that the circumstances as set forth in this chapter are still applicable. ?6.314.080 Appeals. An applicant may appeal an adverse detemtination by the Planning and Zoning Commission or Historic Preservation Commission an ui application for a variance that is consolidated with other development applicativns to the Board of Adjustment. Such appeals shall follow the general appeal procedures set forth in Chapter 25.316. 30 9^p-.963 -2111 ' _,~y 8G LEW ~„~ la coos 9: aoPn ae...., ~C 2131 ~ i coin,.;,,,;?'v r~rliv'n_u~ Vested proPeTh' rigkt• The rightto uedoatahe aad complex the dovolopmant end uec oiproperty unfit the ternte and conditions of a eito apeciilo dereloPttteat plot. Veicrtneryc}lnk:Afaci?itymait~ Proms ~~wPtwheinnaoeesar/formodinlP't=Po~ ueetaiatt of animate wherein ovemig Wabeooures. A rirec, stream or water ittigatioa ditch. Wblp mteana: A flsxihle rod antenna supported oa ebaee insulator, Witmit'eroildantdumpsterortraeheaetosura.Adevi~coor~~ ~of~alpalCodeCiup• 21ue aad3imit taoow bynon-domaatiomammatt n:eetiagdtereq ter 12.oB .• Wildlife proteotioa. Wireleataieconmunlcarlonaervlceafacitllleasnd+aragidpaoad. Ce2lular~eo;elmo• onttenoed speeial[eed eeabtteradio (551~,Peneaal ~~~aervieea tPC3), bile radio ssrvioe (CMRB)~ end o6ur wiraloea commercial teleeoetmtmiaatlost devise end tR neoc't• and envoturea and equipment including traaemittere, eatateae, monapoke, towers, masts end mtcro- dteh antennses caradi~o ud taler~isi~ uaasmiuen and anuw+roaclden~tallm l~dendo~ilmu eeisl aab~ A. "Cellular" meaae as aaeloe m digital wtrelaea eenfmaoioatioa tectu-ology that ie lweod on a syc• :Del Of iatescoaaeotod RasghbvnRY call eltw, tech of wbieh a0adlRa eRtCrIW. H. "Papancad9Ps~l~~h'l°t+ikAadio"(BSMR)mosmadioltalwiraleaconununiatlostteahnol- ogY that apecialima In providing dispatrking services. C. "Penorut Commuoioation Servteaa" (PCSj means a digital wireteu coatotuvicetion tecbaology chat !ue the capacity for multiple comtatmicetiom eervieae and will provlds s eyetmm in which calls wlll be rooted to iodividuda ether than places, rsgetd:®e of Wcagoa. Wor]clag resident. A parson ae defined in the Affordable Housing t3uidalinoa. Yard. Tlu grounds surroundfag a banding on the etme la! or pereel which ttre vaooeupied end uaobsbueted above adbelow graved, nteept fortreesaard vegetation, ar as otherwiwpemtittedinthia trom - •eaoflon 26.d'75,040 Y Titb (See Su lemeatary llegula ~'Yerd, boat. T)se Yard extending the fvtl width of a lot ar varoel, rho depth afwhich is rneeeured by the nanoweet horizoatat distance between the 1lont lot tine cad the aeueet aurfiee ofthe priaeipel buil8lag as grade. ar roar. A yar3 exteadiag the firU width of a be or parcel, the depth of whleh to meaured at the natmtceet horimrttel dishRCO betwcaathe »er lot Una cad the nearest aarRce of the prim lpaf lesild• !rag et grade. :~ g~G-OG3-2111' Jun 14 2005 9:41PH flt^~rrey at Lew '•~` ti0 i3o7 P. 8 ,_:. ,JUN 13.X6` 1'.~.~tE.kW1 CGM~"swi?Y 6EUE'_6PM:NT (Ord. No. 55.2000, ~ lS; Ord. Ho. 1.2002 ¢ 36, 2008; Ord, No. 23.2004, $3; Ord. Ho. S, 2005, ~2) t6.67l.L140 Yards. The following suppkurmntal ragulativns shall apply to all yards. ~. ProJectioaa Into Required Yardt, Yartb shall be nnobetnxted from the gratsad to the eftp ex- caps for the tollowiog silovrod projectiorss, 1. Building ewew•Slghteen {I g) inches: 2. Architeotvrdptojaotionw F.igLtwa (18) ioahoa; 3 Balooniee not util'sud u m extalor pysageway, vay satend the loseor vt oae•third of tho orgy belwe~ rho inquired setback sad the property lllu or four (4) feet, a. Firo cscapoa tcgttirod by the Uniform Building Code-Four (4) feat; S. lIMOYered porches, sialu, patios,.Watita, retaining svalle, steps sad Kailas sevU+aes, which do not esceed Oristy (30) inches above or below natural grade, ebsll be pastottted t0 project into the yard vritbout ma>rlction. Projwtivns auy exraed thietY (30) lncha below grade if detec- miaed w be required by eho clue!' building offkiai for wiadew egress. • 6. Faaeas, badger, berme and walla keathan six (ti) feet is height, v taeasurcd from natural grade, aze patmitsed iA all regvixd Yard aMbacka. (See, 9upptealaatary Ragnlstions 'Section 25.tl75.030, Fences.}, r than twen Sour ('` 7. Driveways lhtveway access shell not cxceod a depth or Leight groats ty- (24} iactta show or below grade within rho required float yard eetbaolr. Within all ether requltad setbacla, driveway aoocu shall oat sensed a depth or h+[gh! greater rhea dtirtY (30) inches above t or below grade Packing is only psmtiWd wilbia squired astbacka If it is in an approved driveway or other area approved for parking. b. Baterior aecehrndisiug. Exgriot oremhandiriag is rasa-reeidoatial tints dietsich ehaU bo prohibited is all required yard set baoka. B. Required Yards Ar>jacxnt tc Prlrste Roads. Alt ~~Vrd a ef~ ~ ed onblie~weY• ebgulatloru are basod oa d-stana rneaeura~ d fto~ m the ri Whex Ours b ao pablio dedication and the tot fine eztnda to the aentealrsw of the right•o&way, rho raquiind yard setback shall egnsl the distanoo epeciHed under tom dirtriae regulatiow, plus an additional diatanee equal to oa~•hal^ f (112) of the r[BhtaL-war min+~ M tt au.~+ n.~.~. way wen dadieetad !br pahlio uao, e.n .~ 67 ~i :e N N ~ A i S . y • m P 2_ ~Q tl '^ a ~ N x O; ~ ~Y I n ~ ~I A N ~ ~, o -~ W 's o Iq. F i~ W EIN, COTE & EDWARDS, LLC HERBERT 5. KLEIN hsk(r~kcelaw.net LANCE R. COTE, PC• 4c(r~kcdawmet SOSEPH E. EDWARDS, IIl, PC jee(a~kcelaw.net EBEN P. CLARK epc©kcelaw.net MADfl[) B. KRLSHNAMUR77 mbk(a)kcelaw.aet ATTORNEYS AT LAW • abo admitted m 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 Boazd: ~c ~i bi~ ~. 20I NORTH MII1, STREET, 517;. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSAIB,E: (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 Boazd of Adjustment (the "Board"), initiated by the owner of a pazcel 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 Bandon (the "Director"). The purpose of this letter is to assist the Boazd in its review of the issues to be presented and to supply the Board with the Colorado law that governs the Board's decision. Back round 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 pazcel. 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 Boazd decide to reverse the decision of the Director, Applicants will ask that the Board reconsider and grant the previously requested vaziances to allow the construction of asingle-family home on the Property. Boazd of Adjustment City of Aspen September 12, 2005 Page 2 The Current Aupeal 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 Boazd'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 cazefully 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 aze 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 cazeful consideration of this matter. Sincerely, KLEIN, COTE & ED.W S, LLC By. Herbert S. Klein giditz\boa Itr appeal 09-08-revhk.doc M*, .~. KLEIN, COTE & EDWARDS, LL~ ATTORNEYS AT LAW ~ N' b'~ HERBERT S. KLEIN hsk rJ celaw.net iii2~01~~~NORTH~~~•M IIII~ STREET, STE. 203 LANCE R COTE, PC• Irc n(J1 ccelaw.net ASPEN, COLORADO 81611 JOSEPH E. EDWARDS, ill, PC jeeQkcelaw.net TELEPHONE: (970) 925-8700 EBEN P. CLARK epc©kcelaw.vet FACSIMa,E: (970) 925-3977 MADHU B. KRISHNAMDRTI mbk ~il ccelaw.net • a6o admired in Cild'omu September 15, 2005 Boazd 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 Boazd: This matter is before the Boazd of Adjustment (the "Boazd"), 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 Boazd 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 Boazd 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). ~ .-~. ,~,, ,. 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 Boazd has no jurisdiction to do so. It is our understanding that the Director may be submitting the appeal to the Boazd 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 Boazd'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 aze 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 Boazd immediately dismiss this matter. f s 9 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-Itr.wpd C~ O ~~ `S~ w ~ f l~ / ~~~a ~Cr :~~~ _~ i Page 3 of 6 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 1ta~~s I.af~c~ I'lani.~i€~~;, T..I..C:: Z{)1 i~~cx-ti7 '4~1i11 ~+h~e~i°t, ~ttitf° ]t1~3 .•'1,~pen, CC) X16 f 1 Pltcrrtc>: (~)i0} c;~j-7~i9 ~'.4i2dSi: CTlhi'ldti~.Y>SD'~"~CIS.11t`~ -----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 M ° Y \ V C bA ") O a c o a c o N O w c ~ ~ d ~ .~' ~ O U "'z G~ ONZ C ~4 w` W m0~ ~4~ O ~ ~ ~ z ~ ~ / ^ ~ V w W uO YI L.LI a U H Q W 2 U N \\~ ~ \\ ~~J ~~ ~\ `~ ~ % ~1 i i \\ \ ~~~ / / 1 ~o O Z a1 ~ I ~I I i a ~ i a~ i ~~ 1\` `\ ~\ ~ z z J m U Q N ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: ~~ ~ ~ 1.~1~~spen, CO SCHEDULED PUBLIC HEARING DATE: a ?pp STATE OF COLORADO ) ss. County of Pitkin ) i, ~---J ~-( ~~~~~ ~ '1r'jJ (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 ]e~~al notice section of an otlicial paper or a paper of general circulation in the City of Aspen at ].east fifteen (15) days prior to the public hearing. A copy of t1~e publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide; and twenty-six (26) inches high. anal 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 healing and was continuously visible from the day of 200_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in,Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen {15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to any federal agency, state, county, municipal government, school, service district or other governmental or quasi-governt~aental 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 goi~ernmental agencies so noticed is attached hereto. (continued on next page) ~~ Rc~oning o~~ 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 teat 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- ~ gnature The oregoing "Affidavit of Notice" vtias~knowledge before me 1 day of ~ ~1- , 20~ , byJo•~~S ~ 11Y ~~7ITNESS MY HAND AND OFFICIAL SEAL My commission expires: ~1~~-3~ ~ ~' PUBLIC NOTICE RE: APPEAL, OF;~N ADMINISTRAT TAA y~ IVE DECISION REGARDING TH'j SETBACK O ~ ••~• ••••~ DETERMINATION ••• .•' FOR LOT I, BL K 3. ASPEN GROVE: SLI6DIVI- sloN II Notary Public NOTICE 13~HEREBY GIVEN that a public hearing will be held on Thursday. August 1R G9 :' S,[,~~ t , -'r7 . Lf106. at a meeting to begin at 4:00 p,m. before the Aspen ESuard f Ad ~ Oq7 ~ q ' CS o justment, Council Chambers, - - ~ •_ Basement of Aspen City Hall. 130 5. Galena St., As- ;t~ '• pen. to consider an appeal of administrative deci- ^ ~'• .••• ~ sion submitted by Rufus Crockett. P.O. Box 3!337, _ \ - ~ '••' „.•~ ~~ Aspen, CO 81611. The appeal relates to an inter- r pretation of determination of setback for Lot L Block 3. Aspen Grove snbdtvision. For further Informatlon;:kontad Chris Bendon at ATTACHMENTS: _ the City of Aspen Corr ~;(f~~unity Development De- ~ partment, 13b S. Calenal5t.. Aspen, CO, (970) 429- 27ss. cnrisb~r?c;.aspen.Gp.us. Y COPY OF THE PUBLICATION s/Rich Head, Chair Aspen tArard of Adjustmeni the Aspen Tunes weekly ,~,~ Jnly 31 zo sh ~z ao ; s 7GRAPH OF THE POSTED NOTICE (SIGN) LIST OF THE OWNERS AND GOVF,RNMENTAL AGENCIES NOTICED BY MAIL Track Instant Page 1 of 1 Delivery Status ~ ~^~rrF~'~~°r~s ~sr~c s€r~vr~ Here is the detailed status of the shipment you are tracking. Check all of the information carefully. If 't ~ ~ ~~ +.~ ~~ ~~; these appears to be a problem with your shipment, contact the carrier directly. Account C~~frrt:x;r: 11{:5f}5ti1 ~~~~~~ ~ ~ ~~~~ Carrier: USPS Trackin Number: 9171082133393167825665 ,~ o ~ ~J~rtE~ g , ~9,tfl_f ill~'!~ ~~fPARTMFNT Status: Electronic Shipping Info Received Prit. it.... f i:lose Q u http://www.pb.con~/cgi-bin/pb.dll/jsp/Tracklnstant.do?packageIndex= l &page=TrackInsta... 7/26/2005 ~ v' r ., ~ ~~~ U Z ~= ~_ ~~ a a !~J Z OO ~ ~, --3 .-~ A ,._, n ~C "~ V ~~ Y_ m n J ^'1 z ...0 ~~~ ~- ~~~ ~~ -~ ~.1~ -~ ...~ l.lJ ~~ Q~ -~ ~~ -~ Ul ~~ n o o uNrrfio r ° s 9 ~ ~'' ~' ~ D rn ~ d ~ ~i ~ ~ ~ ~a ~ N `~ ~ ~ ~ ro O ~ s m ~• ~ ~ ~ N~ ~ ~ H ~ 0 CJ1 ~~ ?iv' ~RR l` ado 7 Track Instant Page 1 of 1 Delivery Status ,~ ~~° p~ Here is the detailed status of the shipment you are tracking Check all of the information carefully. If yip ~~~~~~~ these appears to be a problem with your shipment, contact the carrier directly '~1 FF Account Number: 11650561 JUL 2 6 2005 Carrier: USPS Tracking Number: 91710821333931678256517 H~f'CN Status: Electronic Shipping Info Received BUILCHNG 11FPARTho",ENT ?r,.... lnt ~ closep. http://www.pb.corn/cgi-bin/pb.dll/j sp/TrackInstant.do?packageIndex=0&page=TrackInsta... 7/26/2005 =w z m ~~ n o= ~ ~~ 8~ o z m m a !D P ~ ~n a 'm o =~ Z N n~ ~' Q ~ r ~~ a w N ' E- W ~~ ,,~~~iii \ ^ ~J ~/, W W jv~ `° W ~ ~~ ~' V ~ ~ ~~ fL ~~ Ln 0-. U'i ~ (~.~ r ~ ~ N D °o o UWTp~ r _ r m0 ~" D 9m m \`pNp A ~ ~` 1 4l ~ ~-0Y ~ ~ ~ ~ N ~a ~rQ ~ m NA N A~ m o N '" o ~ cn ~~? J {~~~° 7 ^ Complete items 1, 2, and 3. Also complete m 4 if Restricted Delivery is desired. ~ .nt 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 pennits. 1. Article Adtlressetl to: 5~~s ~ ~-.~-.- l-.>•. _ ~ 1 ba-3 A. ^ Agent B.~e~ived by TPrintea O, Date of Delivery -~~ D. Is delivery address different from item 1? ^ Yes If YES, enter delivery atldress below: ^ No 3. Service Type ~.~Certified Mail ^ Express Mail ^ Registered ^ Return Receipt for Merchandise ^ Insured Mail ^ C.O.D. 4. Restricted Delivery? (Extra Feel ^ yes 2. Article Number (transfer/romservicelabel~ 91 7108 2133 3931 6782 5665 PB '"'rm $811, February 2004 Domestic Return Receipt mzrss-0z-nn-t sao ~, CERTIFIED MAIL THE CITY OF E~SPFN 130 SOUTH GALENA $iRFFT ASPEN, COLORADO $1611-1975 SPS~ POgT 9 QC 91 7108 2133 3931 6782 5658 MAILED FROR471PCOC Hpj~f~~ ~~ ~~~ `~ AJ~~ti~~ ~~k a JUL 2 S 2005 riir'C:v'i! (3~JIL~,, . :, $~ -it~-~3 ~? ii::I::1:il:ist:::EI::I:1::li:I=.~:::,~i:i::tl::ii:l:;:i~i::;l -., II'' o ~ ., ~oF~ck:' ~s~. ~ -•-n,e . ~~~ Caw, --., _ J_ul_ 07 2005 2:27PM R'^~.orney at Law 97C-~63-2111 .'U'~. 7.200 2:i3PM i,OB9mUN;TY OEVE!OPMEA~T ~V0.2?u9 P. 5 CITY bF ASPE~t COMMUNITY DEVELOPMENT,DEPARTMENT CITY OF ASPEN (herekta8er CITY) and (heroinaRm' APPLICANT) AGREE AS FOLLO4rS: APPLICANT has subminad to CITY an app:icwlon for /~/~~~~ C ,_ TI[£ 2. APPLICANT tntderstaMs ostd agrees that City of Aspen Ordinance No, 57 (Series of SOW) establishes a fee 9rocmr¢ for Land Use appl(cntiotss and the payment of all processing fees is a condition pzecadert to a datermi[tatloo of app licuion wmpteteness. 3. APPLICANT and CTTY agree shat because of the sim. ttatwe or scope oflhe propoted project, it is not possible at this lima to ascottain the flrll csttaat of the costs involvod in processing the applicatimt. APPLICANT and CTIY further a><tee Utat it is in dto intarost ofihe parties that APPLICANT make prtyment of an fnititJ deposit and to thoreaRer permit addNonel msls ro be billed to APPLICANT an a stiotdhty Iresis. APPLICANT agrees additional costa may accrue Sallawing tbeir hearings andror approva6. MPidCANT agroca he wit! be banetind 6y retainins greater eeah t;quidity asul KIII make addk:oeal payments won notificstion by the CITY wren tbey ero neaestm~y es coos are toctvrod. CITY agt706 it will be bonefred uvottgtt the yrc~teer cataitny of recevaia~ iu Poll coats to process APPLICANT'S npplicasion. 4. CTfY and APPLICANT further agra thta it is irupracticahle for CITY staff le complete processing tx present stttYicien[ hrformasion to the Plotming Ctimmissioa ~dior City Counclt to rnabte tlse Planning Catnmission tud~or City Council to makc 3eL'aliy trogttatd findings far project ctmstderadoq unless autsttt billings aro paid ut th11 prior W decision. S. Tltwefore, APPLICANT agrees that in coks!deration of the CiTY's ssiver of its right to collect full bees prior o a detamiantion of apaliorttien coa~kttmess, APPLICANT shat; pay an initial deposit in the amatwt ot'S which is far~„ttotas of Corm[tatlty Development staff Gtne, and if attual rcemded coats exec the mitiil deposit, APPLICANT sirll pay addieottal monthly billings to C['fY to nknburse the C1TY for the prOcesaing al t)3a application mentioned above, includiat; post approval review eta role nfS220.00 ?tx plauuwt hour over the initial deposit. Such periodic paymfnta sisal? be ,Wads wiWw 3D drys of the 6illing date. APPLICANT further t[groes that fat Itue to pay sorb ttcaved costs shall be grounds for suapemioa of processing, end vs m case will building permits be issued until all coats associated with oese procaaotg have been paid. CITY OF ASPEN ~a sy: I'`^+ Chrla Benuon Commtulty Devdopmeat Direc[or ~~~rrr ~a ~/h g:\supportUa rmalagrpayaa,do c I/10101 p.5 R~tA-N FOR PERMANENT RECORD blamng wtWreas: Jul 07 2005 2:26Pt1 Rttorney at Law 970-963-2111 p.6 'h t JU-. 7 2D05 2~.'~3?M C~, ,VIIY DEbEIDPMEN? ~ kG.27Gy P, E At•Pi,lcnNr: ATTACHMENT 2 -LAND USE APPLICATION Address: OF ^ Contlitirnial LJse ^ ConcepNal PUD ^ Conceptual Histcxie Devt. ^ Special Review ^ Finu! pVD (& PL1D Rnxadment) ^ Find Historic Devetoptnont ^ Desiga REView~ Appeal ~ Cancsptual SPA ^ Minor Historic Den ^ GMQS Allotment ^ Final SPA (~ SPA Ame:dment) ^ . Historic Demolition ^ GMQS Exanption ^ Subdivision ^ Historic Designation ^ ESA - 8040 Creenliae, Shrum ^ S>sbdiviaion Fxemptan (inah+dq ^ Small [,odge Couversion/ Margin, Hnllam LakoBlutF cnrdotniniumizaoion) Expansion Mountain View Plane ^ Let Split ^ Temporary Llae [<~Otlter; Lot Liac A 'ustmcnt Tcxt/141 Amendmw8 PROFOS,sL: descri 'an of sed bail - s, uses, modtficmions, etc. Have you attached the foUatvin=? FF.tia DUB: Sam/ Pro-Application Co~ercnce Summary ~ ^M Attachatestt kt, SiyhsW Fee AgremnEm ^ Response m Anmhtaem #3, Ditrtensiooel Requitemants Formes Nl4 ^ Response to Atlachsnem#[, Submittal RequirdncNa• btcludiag Written Responses to Review Simdardaaa4 ~~ All plena fbxt are larger dtan g.5"s il" moat be fdded and a ibplsydleh vriM an dectronic rnpy Mall writtap text (MierpeofE Word Format) matt 6e submitted m pars of the applicatloo. R~TA1N FOR PERIAANENT RECORD N am E' ~~~ ~~. ,~~ F [ SEP 2 1 2005 September 2l, 2005 Community Development Department City of Aspen 130 South Galena Street Aspen, CO 81611 Susan Capiel/Collin ~~~`=~' ~~~~ i 400 McSkimming Road Aspen, CO 81611 Re: Lot 1, Block 3, Aspen Grove Subdivision Dear Community Development, I am an owner of Lot 7, Block 2, Aspen Glove 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 i.nt 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 fiont yard or front lot line on such Lot 1, which would make the requested variance unnecessary and would allay the develtrpment desired by the lot owner to proceed. One ony tray to drive up McSkimming Road to notice that all our neighboriwod lames 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 Int in question demands a better mitklation effat so that one will not have the impression ~'nrnntng into a wall' as you drive around the tune traveling up the hi11. i have attended both heairgs of the Board of Adjustments, and others which have been postponed, to bring your attention to this matter, akxg with my neighbor, Rufus Crockett, and other concerned citizens of err subdivision. Rufus offered to file an appeal of the "interpretation" and since we do rat have assessments or an executive board # our homeowners association, 1 agreed he should proceed with an appeal. t wand lace to jan with the appeal filed by Rufus Crockett as i am a directly aikcted homeowner, msiding right across the street from the proposed building. 'Sincerely, Susan CapieUCollin Q Catherine Garland 318 McSkimming Road Aspen, CO 81611 Community Development Department City of Aspen 130 South Gnlena Street Aspen, CO 81611 Re• Lot 1 Block 3 Aspen Grove Subdivision 4 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 nm 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, ~,~ ~ ~1~,,~1 ~~~ ~~ Catherine Garland Vincent K. Paztyka 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 Grove Subdivision Deaz Community Development, ~~a ; ~~ SEP 2 ~ 2005 A,~i=~ iV BUILDlr1r D-`-PARTpdENi' I am an owner of Lot 11, Block 2, Aspen Grove Subdivision which is located directly across the street from Lot I, Block 3 Aspen Grove Subdivision. I will be affected by the granting of the variance requested by the owner of Lot I. 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 boazd 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 boazd 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 ` ' 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 C~~ j~ ~~~/S ~~,8 n~~ III. DECLARATION OF CONFLICTS OF INTEREST IV. CONTINUED PUBLIC HEARING (05/19/05 & 06/09/05) A. Case #OS-04. Appeal of an administrative decision regarding the setback for Lot 1, Block 3, Aspen Grove Subdivision. B. Case #OS-02. Request for a twenty (20) foot front yard setback ~ ~y~ , variance for the construction of asingle-family residential dwelling umt 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 .~ Case #OS-02 Request for athirty-foot (30') front yard setback variance for the construction of a residence on Lot 1, Block 3, Aspen Grove Subdivision ............... 2 Case #OS-03 Request for atwenty-six (26) foot front yard setback variance for 102 Eastwood Drive, Kyle Boyd Residence .................................................................... 2 MINUTES ................................................................................................................. 5 ~; Rick Head opened the Board of Adjustment meeting in Council Chambers with Charles Paterson, Peter McClain, Howazd 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 #OS-02 Reauest for a thirty-foot (30') front vard 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 fora 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 #OS-02 to July 14`ti; seconded by Peter McClain. All in favor, motion carried. PUBLIC HEARING: Case #OS-03 Reauest for atwenty-six (261 foot front vard setback variance for 102 Eastwood Drive, Kvle Boyd Residence. Rick Head opened the public hearing fora 26 foot front yazd 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 vaziance 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 pazcel, 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 gazage is considered an amenity and not a necessity. 2 i 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 '/z 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 minimum 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 ~. ,.., _. it was not impacting the community at lazge 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 anon-conforming road, which impacts the setback. DeLuca explained that buying anon-conforming property was not a hardship; you can not create your own hazdship. 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 aone-car garage rather than atwo-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 atwenty-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. 4 i ~ ASPEN BOARD OF ~JUSTMENT MEETING - MIN TTES 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. U,v J ie Lothian, Deputy City Clerk 5 ASPEN BOARD OF A`iSJUSTMENT MEETING - MINi~JTE5 July 14, 2005 Charles Paterson, Vice-Chairman, opened the special Board ofAdjustment meeting for Case #OS-02 the request fora 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. ckie Lothian, Deputy City Clerk The applicant requested this meeting be continued to September 1 S, 2005. ckie Lothian, Deputy City Clerk .~ MEMORANDUM 1~~ TO: City of Aspen Boazd of Adjustment nn 99~~ FROM: Cluis Bendon, Community Development Director W'V~ RE: Appeal of Administrative Decision -Setbacks for Lot 1, Block 3, Aspen Grove Subdivision. Resolution No.~; Series of 2005. DATE: September I5, 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 Yazd (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 pazcel'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 yazd 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 yazd is considered the rear yard by the owner." The code defines Rear Yard as "a yazd extending the full width of a lot or pazcel, 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 reaz 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 particulaz 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 pazcel, 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 primazy 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 col7ectly and that the Director's jurisdiction was not exceeded. Staff recommends the Board of Adjustment uphold the Director's administrative decision by adopting Resolution No. = Version A, Series of 2005. NOTE: Staff has prepared two Resolutions - Version A and version B. Version A upholds the Director's decision. Version B finds in favor of the appellant and reverses the Director's decision. 2 ,-~-. w~ RECOMMENDED MOTION: "I move to approve Resolution No. _, Version A, Series of 2005." ALTERNATE MOTION: "I move to approve Resolution No. _, Version B, Series of 2005." ATTACHMENTS: Resolution No. , Series of 2005, Version A -Upholding Director's Decision Resolution No. _, Series of 2005, Version B -Reversing D'irector's Decision 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. 3 ~, Version A -Upholding Director's Decision RESOLUTION N0. _, (SERIES OF 2005) A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT UPHOLDING AN ADMINISTRATIVE DECISION REGARDING LOT I, BLOCK 3, ASPEN GROVE SUBDIVISION. WHEREAS, the Community Development Director received a request for an appeal of Administrative Decision regazding the manner in which setbacks are to be measured on a parcel of land known as Lot 1, Block 3, Aspen Grove Subdivision, from Rufus Crocket of Aspen (appellant), represented by Joseph E. Edwazds; and, WHEREAS, the Appellant believes the Director exceeded his jurisdiction in making an administrative decision; and, WHEREAS, the Boazd 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 Boazd of Adjustment has taken and considered public comments at a duly noticed public hearing and has found that the Director did not exceed his jurisdiction, abuse his discretion, or violate due process in rendering the decision. NOW, THEREFORE BE IT RESOLVED that the City of Aspen Board of Adjustment upholds the Community Development Director's administrative decision regarding the manner in which setbacks shall be measured on Lot 1, Block 3, Aspen Grove Subdivision. Section 1: The required Rear Yard setback of Lot 1, Block 3, Aspen Grove Subdivision, shall be treasured from the western property line and the property owner shall have the choice as to which of the remaining three lot lines to define as the Front Lot Line from which the Front Yard setback shall be measured. 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 Resolution No. _, Series of 2005 -Version A. Page 1 ,~, ~. portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. INTRODUCED, READ, AND APPROVED by the Aspen Boazd of Adjustment at its regulaz 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 Adjusttent 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-A.doc Resolution No. ,Series of 2005 -Version A. Page 2 .. Version B -Reversing Director's Decision RESOLUTION N0. _, (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 Rufus Crocket of Aspen (appellant), represented by Joseph E. Edwazds; 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 Yazd 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 auy 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. Resolution No. _, Series of 2005 -Version B. Page 1 .. ,..., INTRODUCED, READ, AND APPROVED by the Aspen Boazd 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 Resolution No. _, Series of 2005 -Version B. Page 2 Jul 07 2005 3:47PM Attq„~ney at Law 970„963-2111 LAW OFFICE ~~~~'~ - JOSEPH E. EDWAR.DS, P.C. 14 FENDER LANE CARBONDALE, COLORADO 8 ] 623 IOSEPH E. EDWARDS, IR, e-mail: joeedwazds(a3sopris.net June 14, 2005 Chris Bendon Community Development Director Aspen Community Development 130 South Galena Aspen, CO 81611 Re: Lot 1, Block 3 Aspen Grove Subdivision Deaz Mr. Bendon, TELEPHONE (970)963.2111 FACSIMILE (970)963-2111 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 yazd 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 dear", 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 irutruments 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 t{te ascertainment of the meaning of the maker of the instrument. (See Exhibit A Therefore the director has authority to explain the meaning ofthe 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 ifthetext is ambiguous or otherwise uncleaz. 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 andlor dividing a lot from a street or street right -of way." That definition is clear and unambiguous. In this p.4 Jul 07 2005 3:47PM Rttorney at Law 970-963-2111 p.5 t~ instance the Front Lot Line is the curved line of Lot 1 adjacent to and dividing Lot 1 from a switchback curve of McSkimming 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-I SB zone 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 ill 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 adj acent the hairpin turn be designated as the Stunt 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" issought, the true purpose of which is to avoid the application of the cleaz code restriction against building in a front yazd as defined by the code text. The drector granted applicant's request to designate only a portion ofthe Front Lot Line as such, and designated the remainder of the Front Lot Line of the Lot as Side Yazd Lines. However, that action by the Community Development Director exceeded his authority. Such determination was not an interpretaton 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 particulaz 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 cl osest 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 authorit}~ 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 yazd than is created by such text definition. Even if he had such authority, the tiny defined front yazd 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 Yazd. 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. 111 this case the Front Lot Line which divides the Lot from the street begins at the extreme east side of the Lot and wraps azound the hairpin fain 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 teat definition the Front Lot Line. The Front Yazd 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 !oi line and the nearest surface of the principal building at grade." Therefore the front yard is an area from the west side of the Lotto the east side extending thirty feet bank from the curved Front Lot Line azound the curve and is not to be built upon. The very small front yard of only thirty feet back from just the southerly hairpin fain of the road is contrary to the text definition of Front Yazd (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 pari 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 Rttorney at Law 970-963-2111 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 the7ot 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 cunent review of the title shows there is no document of record reflecting any easement for future utility rights. [see Exhibit E]. 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 squaze 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 yazd 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 oftheir 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. Thataltemative 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 vaziance 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 8]611. Jul 07 2005 3:48PM Rttorney at Law 970-963-2111 p.7 Emtenaive intcmpretation (interpretotio ealten- siva, called, also, "liberal lnterpretatlon") adopts- a more comprehensive siglli8cation of the word. Lieb. Hetrn: 5t3.".. Emtratxigant. %nter'Pratution ({ntarpr~tio' ex- cedens) is thatwhich sutiaUtufes a'meaning evi- dently beyond. the trtle~ oils It is therefore not genuine interpretatloa Lieb. Herm. 59.- Ho eoluta}~rg~~~ad irltet'Pretation ({ntof•Preta- p oceeds simply on the genera] prin- clples:ollntel'pnetatton Sn good faith, not:haund 5b6yanyspeciBc~orauperiorprinclple: Lieb.FTet'm. Limited or reatr'icteif {ttterpretat{on 4{n~rpre- ttctio E{m{tata) fs when we-are influenced by other 7NTESPB~E"F97.T0 -~9TORIE,q INTEgPSETATIO CHARTASUM tsENIGNE FA CILrNDA EST; UT;13ES MAGIS VALEAT, QU PEREAT. The interpreTatfon o1deeds.; is to,b tlberal,-that the thing may rather have effect th fail ffi'oom, Ma7c. 543, INTERPI[Z.ETAT[O I+'ZEtyDA EST UT 8ES MA LS VALEAT QUAM- PEIIEAT. -Jenk, Cent. 198. Such'aninterpretation !s to be adopted that the thing ~Y rather stand than fall.... rn1TE8PBETATiO TAUS IN A7IIBIGUIS S1rJ11I- PER PTENDA EST UT EZ'ITETUIt INCONVEN- IENS_ ET. A$SURDUM. - In .cases of ambfguity, such an lnterpretatlon should always lx made'that -what Is inconvenient and-absurd may be avoided. 4Inst 328: . _. INTEBPEETATION_ The art or process' of dls• covering and expounding the meaning of .a~staR ate. -will, contract, or other written document. People v. Com'ra of Taxes, 95 N.Y. 559; Rome v. Knox, 14 How, Prac„-N:Y., 272; ,D4ing v, Pratt, 22 Mont. 262, 56 ~P. 279• Tallman v. Tallman, 3 Misc. 465. 23. Ny.$: 734: ~ Roberts v. Portland Wa- ter Diat.,.124 Me, 63, 726. A, 162, 163; Cohn•Ha.ll- Marx. Co.. v. Vanosdall, 25 Ohto ARP• 360, 157 N.E. 908. 909. - The discovery and representation of the true ~~ gof any signs used to convey ideas. Lieb. "(JonaWcaon" !s a term of wider scope than "interpir tetlon;" tor, .yhne the latter is Concerned only with ascea telning the aenne and naaaning of the svbfectrmatter,.. O,e former taayafao De ~dlrerted to explaining the legal el(eutg and ooneequences of tDd Instrument In quesnea Hence mterpretatlrn'lneredes cons[tuctlaa, byt stops at the wrlo- ten teJit'- Interpretatlon and ronstrurUOn of written tnatruments argnot the same. A race of conatructl'pn fe one which eltser gov'erns'Ne.edeet or an accertalned lntenuoa, or Points out what.[he'. court should da~tn the. absence o[ aaORes or .implied Intenllon, while a cafe of Interpretation la one which governs tAe asartalament o1 the meaningot [he. wafter ot'ttu Instrument In-re UNOn Trust Co.; 151 N.Y.9. 296, 249. 82Dile~ea Close {nteripretat{an ({Rterpretat{o rastr(cta) is uiopted if dust reasotls, connected with the for- nation and character o2 the text, lnduceus to nice the molds to their narrowest meaning. This. ~pectes olinterpre}aUon has generally beencailed literal," but the term Is lnadmiasible. 7.Ieb. Term. 54: 9 prindp]es then .the strictly hen A8! Lieb:, Herm. 60. - e Predest{tted irrt an erpt'etatlott (inlr deati~nata) takes place [f the interp under a strong bias .of mind, make ~ esculent to his preconceived vies This includes artful interpretation, vaJer,) by which the interpreter se meaning to the text other than the to have been intended. Lfeb. Herm It is said to be either 'legal; • whi( same authority as' the taw itself, whtch rests upon its intrinsic reasoti gal interpretation may be either "au1 if is,-expressly provided by the leg ual,' -when 'it 1s derived from unwr: Doctrinal interpretation may turn on of words and sentences, when It ls' matical;' or on the intention of t when ft fs described as 'Hogical." Vl7 terpretation stretches the words of cover its obvious meaning, it fs called when, on the other hand, !t avofdl meanNg to the words, 1n order Dot:: the intention of the legislator, ft 19 r. t1ye." Holl. Jtu•: 344;__. As to strict and Zeberml interpretet struction, In the civil laax•, authentic lnterpretz is that given by the Iegislator hltnsf otiligatoljG, on 'the courts. Cuatomox) tion (also Called "usual") is that-.t -from successive or concurrent decia Court on~the-same subjecbtnntter; tin to the spirit of the -law, jurlsprud~; and equity; es distinguished front "al terpretatlon, which is that given by. tl himself: Houston v, Robertson, 2 T INTERPEETATION CLAUSE. A st statute which defines the meaning; words occurring frequently fn the. octi' INTESPEETES., A. person sworn'a1 interpret the evidence oL a forelgpep and dumb person to the court Amory: 5 Mass- 226; People v: Lem Deo, 132 i P. 266. /NTER&EGNUM. An Interval Uetwf The period which elapses between the. svverelgn and the election of anothei cancy which occurs when there is na:g INTEEAOGATOIE.E. In FS~ench laP which contains the interrogatories m: judge to the person accused, on~tbe"f ace the object of the accusation, and k of the accused, Poth. Proc. GYlm. ¢, 4. -""°°'"~a+vulES. A set or serle8 questions drawn u for the -- pounded to a ur ose f witness who a EXHIBIT . seiles of t d c ju t isl elea taking evkien ° a 4 5 ~~ , Jul 07 20058 3:49PM Rtt net at Law 970- 63-2111 p.8 a ~ €alt~ m~~ ~6~ 3t3 ~~ O a ~ ~~~5~~ ~ ~` ~ ~ ~ af~ a,l {~ i Q ~ C y o ~,~~€L~ ~ ~~; a !~ ~ t~ . ~~~~~._ y~ ~ p t .~- ~ ~'i ± • Q ~ o ~ d ~ ~ % +Yae7.. 4i 4rw,v,Z^N+ ~ r s s ~ p 3 ~ ~ ~ ° b W V $ ~G~€ ~ $ l~" {{;, n iR'mr.~~'k. ~°yv~~~G~~p~ iiJ k~~E y ~- V Q ~ b e.a.~ S q ~ : ai Q ' ~, `Er t ~}j h Yi `l V y a~n~~? 'D'~~ y 51~ 0 a$~ UO ~ ~ 3 a0~~~~ ~~~~ ~~,~ . r }$i ~~ ~ ~ d 8 '~ ~ ~ ~ i ~ Fii i y~ lefts f r y Q {p ,. S' iii dE ~ tyO i~~R Ms(~ t~.V v a S3 tl ~• V a~ ~ gV tlW L~ RC i} ~it ( ~~ t ~~p ~ - y V i,` `E i ~ '-~ j ch ppdd r r i J~ ~ 3 e 'i ~' ~ . -'::: n~ ,} ~~ '? ^~ ~ -_ ~, ._, ~L \ ~`I I X at ~~}~~~ - ..fir ;a ~ ~ ~ ~; ~. ~ ~ 1Y ~ . 1- ~\\ ~; \ . ~ ~ ~Y ~ ~C ~\~\\ ~~, EXHIBIT ~~'-._ \ ~ ,' `~ 'I Jul 07 2005 3:49PM Rttorney at Law _~ r s i5i1 ~ / ~~~ ~_ Y / /i ~ ~f 'll _ i ~ i r (\~\ ~, ; ,+ .~ ~ 4~ri ~ ~ ~ S '~N~. ~. Y -~ ~~:Y.: rY .1: ~ ~ I 1- - ~ '~ ~ -- ~ , , o , , -- , ~ L1C ~ ~~;~ ! ~ 1 ~ 1~ ~ l t h ~ r t a3 ~1~ ~ \' i I• ~ ' ~ l 1 ~ ' , t 1 1 ' , .~ 1 ~ ,~~ ' ~ ~;~ `\ 3 ~ ~ ' 's • ~ is , ,,lc--~ t , tt j ~ I ~ 7 '~ ~ j € ~,a~ , , ~ ~ 970-963-2111 p.9 4 Y.v~.7~Y~1~ 6°P<,~+ ~fi4F-+R +1?u e cox "'uS i •1 O ~ n:.?- ~%~ ~ ~ ~~ ~ 1 i" \ ~ / .' / i;'. ~ j / / r ? 1 / ~ l /~ ~-, 1 '~ \=; f .~ i. Ilil~ ~ ~ J lr~~/''f/ril ~~ ~ l i i~ ~ t \ J•~ r ~ ~ ~ ` f , I ~ \~ \ 1 . i 1 l ~s,l ~ ._~ \. 1 ~ i I ~ ~_."' r ~ / + _ / /+ ~_ fj ~ ~ ,. :~ ' •1•`~ / ,~~ ~ __ /^~~ _~ //_ ~ , ._ . - "- 1 / F ~t~~•/. _~ / ~• ~-- ~xu ---~ ~j Jul 07 2005 3:SOPM r ROM Panasonic FRX S`fSTEM .t;;PEN +y.:,;..~'~~ -~tT7' PAID ^. ~ : NEP NO. ;'~a~uy ~.~N ~NI'~ 970=963-2111 p. 10 ~'",' J~ Jul, 06 2005 01:07PM P2 C,!TY OF ASPEN ~OV•IY l WRETT PAtD DATE FtEP NO. 9/~~iGy %W-F :~ioi'7 SPECIAL WARRANTY DEED THIS DEED, Made September 21, 2004 between THE ,!ONES FAMILY PgRTNBRSHIP, LLLP of the County of ARAPAHOS and State of CO, of the first part, GRANTOR end WARREN MAPLE LLC, A COLORADO LIMITED LIABILITY COMPANY AND DAVID MAPLE LLC, A COLORADO LIMITED LIABILITY COMPANY whose tags! address is: 666 So. Broadway, SuQte 200, Denver, Co of the County of 80209 State of Ca, of the second part, GRANTEE W ITNESSETH, That the said parflas o) the feel part, for and in CDnsidaretlon of the sum of Ten dollars and other good and vatuaWe oonsiderotlons, to the said parties of Ute first part, in hand paid by the said parties of the 8eoond part, the receipt whereat is hereby eonfpssed and acknowledged, has granted, bargained, sold and conveyed and by Ihase presents do grant,'.bargaln, t:e11, convey end confirm unto the said parties of the second part, its successors antl aaclgns forever; slhthe following deaaibed lots or paroel of lend, situate, tying and being in the Gounty of Q17KIN and 51ate of COLORADO,. to wik • . LOT 1, BLOCK 3, :.. ,_ ,.._. ., 9 EN GROVE SUBDIVIS,,. , erect recorded in Dilch.eook 2A at ;accordin Wthe.Platth ::. ,,.;,.._., ......::.::... Pa a 291. , .. `>,' g ... .... , , , Together with all and singular the haredttaments end appurtenances Ihere.unto belonging, or In anywise appertaining, and ttte reverclon and reveroions, reinaindai.and remainders, rents, Issues and profits thereof; and all Itra estal9, right, tab, interest, claim end tleMahd whalsQt3vef of the said partiec of fie Nrst part, either in law or equity, of, in and. to, the atwye._ tiprgeined.premiseia,w'ith'16e heretlitamerNS and appuAenances; TO HAVE AND TD HOLD the"stud'{SYpfTiitesatlbve=trargaiiied and dascribedr wun the appurtenances, unto the said partres e- the second port, i!s euccesaon anal saaigrie'farever. And the said parties of the nrsl pen ror themsehres, their heirs end asslgn6 do txvananl, grant, bergaln end agree to and with ttie said parties of the secontl part, their successors and assigns, the above bergalnetl premises In,ihe quiet and peaceable possession of said parties of ' the second paA, Its successors end eseigns, against aA, and every person tx persons lawfully datming or to Balm the whole or any part Ihereaf, by through or under Ihb said parties of the lust pars Io WARRANT AND FOREVER DEFEND. Tha singuler shall Include the plural, the plural the singular, end the use of gender shall be applicable to ell genders. IN WITNESS WHEREOF, the said parties of the f'rsl part have hereunto sat their hand(s) and seal(s). SIGNATURES ON PAGE 2 I~I~II~~~.IINI~I~I~UIIIi~I 5tb21so8e0 ez:111 cilVla DpV16 P[TCta COUNr1' 00 q 11.08 D 80,87 502180 TIEp DECLARATfON RECEIVED 09/1112/04 Rtto~rney at Law ~r PHONE No. ~ww ®exrnrmLE INC. yet E fitjMduA wc.. EXHIBIT J~1 07 2005 3:SOPM Attorney at Law 970-963-2111 p.ll ~ ~ FROP1 Panasonic FRX SYSTEM ~ PMONE IJO. : Jul. 06 2005 01:07PM P3 ~„~ I~1~11UlR~R~~~~~I~I~! 0 ~2 Z8{a el:tfl 6fLV 1A ORVIS v7TRIN COYryTt FO R 11.00 p g~,g) PAGE 2 TO SPECIAL WARRANTY DEED SIGNATURE PAGE THE JONES FAMILY PARTNERSHIP, LLLP ~- 1 ~~ O ivia Jones Je a art r Trustees of the Olivia Janes Revocable Trust u/a/d Dece r 24, 003, General Partner STATE OF ~-a.OAMD ) ss COUNTY OF . ) Th reg~ing instrument. was acknowledged before me this. ~7~ day of lAof . , 2001Yr 6y: THE JONES FAMILY PARTNERSHIP, LLLP, 6y: Olivia Jones and Jeffrey Barker, Trustees of the Olivia Jones Revocable Trust u/a/d December 24, 2003, General Partner, WITNESS my hand and official seal Notary Public >. .. .. m eomrnisaion ex ices; 7-.a$ - O$ Y .p .. ~~' ,..~~ PCT1685 PAMEIA S. DuFAIJLT~'f~, . Jul 07 2005 3:SOPM Att~ney at Law 970963- 2111 p. 12 =ROM Panasonic FPX SYSTEM PHONE N0. Jul. B6 2605 61:6H)'M P4 ~_.. _ SCHEDULE H SECTION 2 L (, j I~ F EXCEPTIONS 1 ~ LO C{-- ~j The policy or policies to be lasuad will contain exceptions to the following unless the same ere disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not showh by the public records. 2. Easements, or claims of easements, not shown by the public rewrds. 3.,. pisorepancfes, conflicts In boundary Imes, shortage in area, encroachments, any facts which a correct survey antl inspection of the premises Would gisclose and which are not shown by the public records. 4. Any lien, or right to a lien, for servioos, labor, of rrlaterial heretofore. or hereafter fumkhed, 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 dote hereof but prier to the date the proposed insured acquires of record for value the estate or interest or risortgega,thereon covered by this Commltmedt. 6. Taxes due and payable; and. any tax, special assessment, charge or lien imposetl 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 dor Aspen.prove'SubdiVlsloh recorded August 14, 1958 In Seok 184 at, . Page 479 (81ock 1) and November 12, 1863;n Book 2187 st.Pegt: 588 (Block 3) and Notlce of Declaration '~ ' recorded November 29, 1989 in Book 1;08 at Page 646,, deleting therofrom any restrkaions indicating any ;prei~hbDCe, Ilmltalien or discrimination based proiaoe, cohr,'teligion, sex, handicap, familial status,.or ~.;''' , ;~atiorial origin,. , .., '.~:t .. , 9. Easements,rghts~~ofviayenC~a)Im'attar's'as~dlselosed.onPla!$,,of~smbjectproperty:recotdedin~Drtclr6otsk`:~ - 2A at Page 248 and D'Rch Book 2A at Page 291. "°' ' . - 1D. Terms, conditohs, provisions, obligations end all matters as set forth in Ordinance No. 26, Series of '1987 by City of Aspen recorded July 22, 1987 irr Soak 541: at Page 979 and Ordinance No. 28, Series of 1987 srecorded October 1, 1987 In Book 947 St Page 19'1. ~ EX~ 1T _~ _ JVII 11 L'JVJ J. VL111 f11. 'v V!'llC~ C1. LGW J!V-JV,:1-L 111 ~..'.J fY~ `ti Chapter 26.316 APPEALS Sections: 26.316.414 Appeals, pttrposc statement. 26.3 ] 6 +)24 Authority. 26.316.034 Appealprnccdutcs. 26.316.OtD Appeals,purpnsestatement. The purilvse of Eels Chapter is to establish the authorih~ of the Board of Adjustment, Circtivth blanagemem Commission, the Planning and Zoning Commission, andCity Council tv hear and decide certain appeals and to set forth the prcxedures for said appeals. (Ord. Nn. 17-2002 § 2 (part), 2002) 26.316.020 Authority. A. Board of Adjustment. Tee Beard of Adjustment shall have the authority to heaz and decide the following appeals: 1. Any decision or detentrinztion made by an administrative official unless otherwise speciitcally stated in this title.. 2. The der_ial of a varisnce pursuantto Chapter 26.314 by the Planning and Zvning Commission or Historic Presenlativn Commissivn. i B. City Council The Ciro Cow~cil shall have the authority io hearand 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 26306. An appeal of this natue shall be apublic meeting. 2, Any action by the 13isteric Preservation Commission in approving, approving with conditions, or disapproving a develvpment 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 orallocativusofthe(irowdr~4anagementCommissionpursuantto Chapter 26.470. An appeal of this nature shall he a public meeting. 4. Ary other appeal for which speciiis authority is net granted to another boazd orcommission as ~i1~ ` establisl-,ed by :his title. An appeal of this nature shall be a public meeting. C. Plamting and Zoning Cormission. The Planning and Zoning Cvmmission shall have the authority to hoar and decide an appeal from an adverse determination by the Community llevelopmentDirector on an application for exemption pursuantto the growth management quota system in accordance with Section 26.470.060(D). {Ord. No. 17-2002 § 2 (part). 2002; Ord. No. 27-2002 § 23, 2002) 37 J llfl 1T GUUJ J. UJf II tIMMVf-11!•-J E1. LOW J/l1 JVJ L11L r.'.O ~~ -~ 26316.034 Appeal procedures. A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Comtntmity Development Director and with the city office or department mndering flte decision or determination within fouxeen (14) days of the date ofthe decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this title io appeal any decision or determination. B. E}1'ect offiling an appeal. The filing of a notice afappeal shall stay any proceedings in furtherance of 11te action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision-making body authorized to hear Ute appeal that a stay poses an imminent pert t to life or property, i n whic h case the appeal shall not stay further proceedings. The chairperson of the decision making body Fvith authority io hearthe appeal may review such certification and grantor 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 o£ filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notix of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.06U(E)). E. Standard ofreview. Unless odterwise specifically stated in this title, t}te decision-making body authorized to hear the appeal shall decide the appeal Eased solely upon the reoerd established by the body from which the appeal is taken. A decision of 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,jurisdietion of abused its discretion. F. Action by [he dceision-making body hesring the appeal. The decisiommaking body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modifi ed, shalI be deemed to have all the powers ofthe officer, board or commission from whom the appeal is taiien, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by written resolution. All appeals shaIl be public meetings. ('Ord. No. 55-2000, S§ 4, 5; Ord. No. 27-2002 § 24, 20D2) 33 ._ _ gun r4 cu~o-a3-aarn nctorne~ an maw oiu-ao~-ciai p.i r^~ a ,J Chapter 25.306 II~'TERI'RETATIONS OF TITLE Sections: ~~~-!~ 26.3U6.Ql0Interpretation. ^ 26.306.OtU Interpretation. U m +'~„ijl A. Authority. 'Ihe Community Development Director shall have the authority to make all interpretations of the teart of this Title ~he boundaries of the zone district map. B. Initiation. An interpretation maybe requested by any affected person, any resident or rea! property owner in the City of Aspen, or any person having a conicactual interest in real property in flee City of Aspen. C. Procedures. 1. Submission of request for interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interpretation shaft be submitted to the Community Development Director. 2. Detem~inationofcompleteness.Withinfifteen(1Sjdaysafterarequestforinterpretationbas been received, the Community Development Director sha!I determine whether the request is complete. if the Community Development Director determines the request is not complete, he shall sense a written notice on the applicant specifyine the def ciencies. Tttc Community Development Dircdor shall take no futther action on the request for interpretation until the deficiencies are remedied. 3. Rendering of interpretation. After the request fur i nterpretationhas baen determined complete, the Communit}• Development Director shall render vt itttgtpt~~yp~within fifreen IIS) days. The Community Development Director may consult with the City Atromey and review this Title and the zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail. E. Official record. The Community Development Director shall maintain an ot}icial record of all interpretations in the Community Development Departrnem, which shall be available for public inspection during normal business hours. F. Appeal. Anv person who has made a request foXtgretaU~' n my appeal the interypretation ofthe Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. ]6 Jun lY CUUO O: uorn nLLOrna"y an L.aW oru-auo-aaii ~+.o ~~ ~ ~, K. Written. or in writing. T!u Berm "written" or "in writing" shall be construed to include any in- scribed trpresentation of words, letters or figures, whether by printing or otherwise. L. Year. The word "year" shad mean a calendar year hi. Boundaries. Inte retatinns regarding-~qne •iistrj~~o~daries shall be made in accordance teeth the followine: 1. Boundaries shown as perpendicular [o or following, or approximately following, any street, alley, right-of-way or water course shall be wnstrued as perpendicularto or fallowing the centerline of the street, aJey, right-of--way or water course. 2. Boutdaries shover. as following, or approximately"allowing, any platted lot line or otherprop- erty line shalt be construed as following such line. 3. Boundaries shutvn as following, or approximauly following, section lines, half-section lines, or quarter-section lines shall be construed as following such lines. 4. Boundazies shown as separated from and parallel, or approximately parallel, to any ofthe fi:a- tures lured in the paragraphs above shall be construed to be parallel to such features and ai such dis- ism:c therefrom as are shown on the zone district map. 26.104.090 Resen~ed. --- 2b.104.100 Definitions. -'-'~-As use m [ rs code, unless the context othern~ise requires, the following terms shall be defined as fellows: Academic Uses: The use of land ar buildings for educational activities with attendant research, ~~~ ,~ housing, administratian. and public venues..Academic Uses may include public or private school, uni- ~/1 `. ~tiv versity, teaching hospital; research facility, testing laboratory, libran•, auditorium, adminisirativc nf- ~1, L ~^i'~ feces, facuhy housing, studont housing, or similaz uses. ~. AceessoryDwellingGnit(ADU). Adccdrestricteddwellinguttitattachedtoordetachedfroma principal residence situated on the same lot or parcel, and which meets the occupancy, dimensional and ether requirements set forth in Section 26.5^_0 of this Title, and requirements set forth in the As- pen/Pitkin County 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 pazcel or Sot. (See, Chapter 26.575.]40, SuppleTnertary Regulations -Accessory uses and accessary structures}. I1 ._.__......... -uun 14 cuu^ a:uurn rfcccrney ati LaW n-JU-ycy-Gtii p.a ~, Linked pavilion. An enclosed walictvay corutecting aprimary structut~e to an axessory structure. (See Supplementary Regulations--section 2G.57i.020(A)(8), Linked Pavilion). Lodge. Same as hotel. I,nggia A deck, or porch attached to a living space and open on at least one side developed mtdtt a roof as ar, integral part of the huitding's macs rather than as an appended element. Lugo..4n artistic portrayal or decorative pariem printed or otherwise placed nn an exterior wall, window sib or other exterior surface whiuh maybe viewed from outside the premises upon which it has been placed and which is used or displayed to identify, advertise or promote the premises, a persrnt, business, servicr, organization or product. Long term. The occupancy of a dwelling unit for residential purposes for a time period not less than six (6) consecutive manths and shall include rental occupancies, except that iwo (2) charter rental occupancies may be allowed per dwelling unit per year. Lot. A defined individusl area or unit of ]and resultine from subdivision and reflected on a re- cordedplat approved by the city: or if created and recorded prior to the adoption by the city of subdivi- sion regulations, or prior to iu annexation into the city, a unit or area of ]and designated by a separate and distinct number yr letter which is illustrated en a plat recorded in the otfice of the Clerk and Re- corder for Pitkin County. Lat area. The total horizontal area contained within the lot lines of a lot, or other parcel of land. (See, Supplementary Regulations -Section 2ti.575.020, Calculations and Measurements). Lot depth. The shortest horizontal distance between the front and rear lotaines. Lrot line, front. The line normally closest to and;or dividing a lot from a street or_ street right-of- way. Lot tine, mar. The lot line opposite the ftront lot line, ~~ J~ S (~ , Lot Sine, side. The lot lines other than front or rear lot lines. ) ~1 SGp~ ~~ ~~~~~ ~ t s~ ~~~~ Lot width. The horizontal distance between the side lot lines as measured along the fro x yard ~U setback line. ;Manufactured home. A single family dwcUing unit which is partially or entirety manufacntred in s factory or at some location other than the site of final construction and insallation. A manufactured home is installed on an engineered, permanent fotmdation and has brick, wood, or cosmetically equiva- lentsiding and a pitched roof. A manufac[ured home is certified to the National A4anufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5401, et seq., as amended. 21 Jun 14 i'UUb 9: U9Yrl Httorney at Law y7U-at;y-0111 p. lU ~~ ~ . (Ord. No. SS-2000, § ;5; Ord. No. 1-2002 § 16, 2002; Ord. No. 23-2004, §3; Ord. No. 5, 2005, §2) 26.595.640 Yards. Tltc following supplemental regulations shall apply to alt yards. A. Projections Tnto Required Yards. Yards shall be unobstructed from the ground to the sky ex- cept fot ttte following allowed pmjcc4ons: 1. Building caves-Eighteen (18) itu;hes; 2. Architecturalprojections--Eiehteen(18)inches; 3 Balconies not utilized as an exteror passageway; may ex*.end 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. [:nwvrred porches, slabs, patios, walks, retaining walls, steps and similar structures, which do not exceed thirty {30) inches above or below natural grade, shall be permitted to project into the yani without restriction. Projections may exceed thirty (30i inches below grade if deter- mined w be required by the chief bui-ding official for window egress. 6. Fences, hedges, berms and walls Iess 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. Driveway+s Driveway access shall not exceed a depth or height greaser than twenty-four (241 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 about or below grade. Parking is only permitted within required setbacks if it is in an approved driveway or other area approved r"or parkin. 8. Exterior merchandizing. Exterior merehandizing in non-residential zone districts shall be prohibited in sll required yard set backs. B. Required Yazds P.djacent to Private Roads. All requued 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 line extends to the centerline of the right-of--way, the required }•ard 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 i4 ;'iJUb y: 111't7 Httorney at Lew y-IU-uoa-cLLr p•ii ,• •~ C. Corner Lots. On a lot bordered on hvo (2) sides by intersecting streets, the owner shall have a choice as to which yard shat be considered as the front yard, such yard to mee( minimum setbacks for a tiont yard in that zone district. The remaining yard bordering a svcd may be reduced by one- third (1!3) of the required front yazd setback distance for the zone district. The reaz yard must coin- cide with the rear alignment of neighboring lots regardtcss of which yard is considered the front yard by the owner. D. Transitional Wards. Where hvo (2) loin which share a common side lot tine are in different zone districts, the lot in the more intensive zone. district shall observe tltc required yard settrack dis- tanec as established for the less intensive use. ~.nne disvici E. Non-Aligned Lets. For any let in dte R-6 zone district in excess of nine thousand (9,000) square feet which is not aligned along the treditional Aspen Townsite lot lines, the building inspec- tor shall measure the side yards from the hvo {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 aze opposite from each ether. 26.5^,5.045 Junk Yard and Sen~ice k'ards. Junk yards (see definition, Section 25.104.100) shalt be sczeened frem the view of other lots, strueture"s, uses and righi5-of--way. Service yards (See deFittition, Section 26.104.100) shall be fenced so as noY to be visible from the street, and such fences shall be a minimum six (6) feet high from grade. Ail fences shall be of sound construction and shall have not more than trn (10) percent open area. 26.575.050 Fances- Fences shall be permitted in every zone district provided that no fence shall exceed six (6) feet above natural grade or as otherwise regulated b}' the Residential Design Standards (see Chapter 26.410). Fences visible from the public right-of--way shall be constructed of wood. stone, wrought irert nr ntasmuq. Un corner lots, no fence, teuining wall, or similar object shall be erected or main- tained which obstructs the traffic vision; nor on corner lots shall an}~ fence; retaining welt. or simi- la< obsvuction be erected or mainrained which exceeds a height of forty-two (42) inches, measured from sweet grade, within thirty (30) feet from the paved or unpaved roadway. Plans showing pro- poscd cunstntctien, material, location and height shall be presented to the building inspector before a building permit fer a fence is issued. Additionally, foliage shall be placed and maintained so that it will not obsQUCt vehicular visibility at intersections. ;Ord. itio. 55-2000, § 16) 26.575.060 Utility/i'rash/RecycleSen~ice.4reas, A. General. The following provisions shall apply to all ut.lit}=/trash service areas 1. If the property adjoins art slley^Nay, the uiiliq.wash/recycle service area shall be along and accessed from dte alleyway. Unless entrely Iocatal on an alleyway, all utility/trash service xeas shall be fenced se as not to bt visible from the sweet, and such fences shall be six (6) feet high from grade. A11 fences shall be of sound construction and shall be no less than 90'%0 opaque. 68 Jun 14 ~'UUS y: 1[rn Y1LLOrney at Law 1""~ Chapter 26.314 VARIANCES Sections: 26.314.0 t U 26.314.020 26.3 t 4.430 26.314.040 26.314.050 26.314.060 26.314.070 26.3 i ~t.080 Purposes. Authority. Authorized variances. Standards applicable to variances Procedure for variance approval. Conditions. Expiration. .Appeals. ~/U-~bJ -Gill '' "•. 26.314.010 Purposes. Variances are deviations from the terms of this Title which would not be cuntrary fo tl-,c public interest w•1ten, owing to special circumstances or conditions, the literal enforcement of the provisions of this Title would result in undue and unnecessary hardslup. Variances shall only he granted in accordance with the terms ofthis Chapter. 26314.D20 Authority. The Board of Adjustment, in accordance with the procedures, standards aztd limitations uC this Cltapter shal l approve, approve with conditions, or disapprove a development application for variances to the terms of this Title. If the application for a variance is part of a consolidated application prcx;ess authorized by the Community Development Director pursuant to Section 26.304.060(H)(I), the Planning and Zoning Commission, or the !-Cistoric Preser~retion Commission may review the application fnr a variance using the standards and procedures set forth in ti'tis Chapter. 26.314.030 Authorized variances. Variances may only be eranied from the following requirements of this Title 26t A. Dimensional requirements. B. Permitted uses, but only to allow for the temporary oli-site location or storage of materials, structures or equipment pursuant to building construction ar construction staging. 26314.040 Standards applicable to variances. A. In order [o authorize a variance from the dimensional requirements of Title 26, the appropriate decision making body shall make a finding that the following three (3) circumstances exist: ]. The grant of variance will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Community Plan utd this Title; p. iC 2S _..___...... __ uun i> cuua n: torn ncuarne~ ac t.aw oru-moo-ctrl p. to ~.~, ~ ,. 2. The grant of variance is ehe minimum variance that will make possible the reasonable use of the parcel, building or structure; snd 3. Literal interpretation and enforcementoftheterms and previsions ofthis Title would deprive the applicant of rights comrnanly egjoyed by odter parcels in the same zone district, and would cause the applicant unnecessary ha: dsltip or practical di~cuhy. In determinin g whether an applicant s rights would be deprived, the board shall consider whether either of the following conditions apply: a. Tltce are special conditions and circumstances which arc unique to the parcel, building or structure, w•hiclt are not applicable to other parcel, svuctures or buildings in the same zone cGstrict and which do not result from the actions of the applicant; or h. Granting the variance will not confer upon the applicant zny special privile¢e denied by the Aspen Area Community Pian and the terms of this Title to other parcels, buildings, or structures, in the same zone district_ B. In order to authorize a vaziance 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 puhiication, mailing and posting of the proposed variance has bean provided to surrounding property otmersin accordance with section 26304.060(E)(D)(e)--(c). 2. A variance is the only reasonable method by which to afford the applicant relief and to decoy a variance would cause the applicant unnecessary hardship or practical difficulty. 3. The temporary off-site storage er construction staging can be undertaken in such a manner so as to minimize disruption, '.f any, of normal neighborhood activities surrounding the subject parcel. 4. If ownership of dre o*f-site paroel 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 provision is made to restore the subject parcel to its original condition. upon e~.+iration of the variance, including the posting of such financial security as deemed appropriate and necessary by the appropriate decision making body to insure such resWration. (Ord. No. 27-20D2 § 7, 2002) 2ti314.O5U Procedure for variance approval. .4. Initiation. A development application fur a variance may be 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 development application to the Community DevelopmentDirector in aform established for such purposes. The Community Development D irector 29 Jun 14 ZOOh 9:1SYn Httorney at Law 970-9E3-111 p. 14 shall review the application and determine its completeness and shell refer written comments to the approprate decision making body, C. Steps Required. Chte step is required to review an application for a variance: A public heazing before the appropriate decision making body. 1TOticc requirements: Publication, mailing and posting (See section 26.304.060(c)(3)(a)--(cjl. D. Dceision-making body action. At the conclusion of the public hearing, the appropriate decision making body shell determine if the application meets the standards of this chapter, and stall issue a resolution to approve, approve with conditions, or disapprove the application for a variances (Ord. No, 27-2002 § 8, 2002) 26.314.060 Conditions. The Director of the Community Development Devartment may recommend and the appropriate decision making body may unpose, such conditions on variances as are necessary' to accomplish 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 ofmaterials, stntctures or equipment pursuant to building construction of construction stag ng shall commence and terminate on dates certain as established by the appropriate decision making body and shall no[ relieve an applicant from obtaining all necessary building permits, 26.314.070 Expiration. A. fixpiratirn~. Unless vested as part of a development plan pursuant to section 26.308A10, and except as otherwise established by theappropriate decision makingbody, a variance granted under this chapter shall automatically expire after twelve (12) months from the date of approval unless development has lion commenced as illustrated by the issuance of a building permit. B. Extension. The appropriate decision making body may grant a one time extension of a variance for up to twelve (12) months. All requests for an extension must be submitted prior to the expiration ofthe 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 detemimaGon by Lhe Planning and Zoning Commission or Historic Preservation Commission on az~ application for a variance that is consolidated with other development applications w the Board of Adjustment. Such appcas shall follow the general appeal procedures set forth in Chapter 26.316. 30 _._._ J'~~-JOJ ~.-- Jun 14 2005 9:4~Ptt gtoor nay 80 L.eW .•"'s ,JUN. '3. 2005 1 ~ ~)5~m COi~"+.`, ,+ CiUEI~~ u_~T ~G.2:a7 r i V asi-d property right. The ri~htty undoatalca aodaoatpla+r fire dovelopmatt and uw ofproparly undcc the tame and ooaditians of a alto apoci5o developntatt plan. Vetertaary clinic: A faci!ityauiutainad by or fm dtoueo ofwl~ieeose~ad ~ ~ n~~P°24° ~a trcatmerttof animalawhcrcinovcmightoaroiaprahibitedcxcopt Watareouras. A r{vec, stream or wetezirtigatioa ditch . W61p antenna: A flexible rod antaent supptated oa abase instalatoz. •W4ldlite rafetent dumpster or truh eaetoaure, Adeviaoor etruaturo antetdedto aforodotnostic -e5tae andlimit tooow by non-domoatia rnaamtaeis rreedngrhe requlrrmenta oflvhuaieipal Code Ciup• ter 12.08 •• Wildlifo pzoioctiota. Yi'ireleu telecoaamuNcattan asrv[cea fadNliea andlor equlpseaQ Cellular tefsphona, pagltag, ontte:toed:pecieltaed ttaobfletadio (ESHR?cPasonal oommwdcadonaeniees (PC3), cortamencidaao- bile radio:arviee (CHAS), and other winleea oomaureiai teh+eommtmicatian devices end eR auoct• ated snuatttraa and egtilpment including tntumittera, aatemms, otonopoke, towon, ~a and mlcro- wavo diahea, cabfneta mdequipmaottootns, Tltia dofSnidoadoa aotapplYronan•otunmacial aateillte dfah antennae, radio and taleviaitxt uwunittets and aatstuaae ineldetual m ratdandal use. A. "Cellular" manna as analo` or digital whalesa eommunioatioa technology that is based on a tya• rem of iatcroonaeotrd neighboriaY all aka, eneh of which ooatsina anktttw. 8. "Lnbanced8peeialisedMobikRadio"(BSMR)maaaatdigltaiwirelaaootnmunlaationtaelwol- ogy that epecialtraa la pmvtding ditpatohing services, C. "Pecaonal Commuoicatioa Servitae" (PCSj mane a digital wirekN commut»catian technology that hen the capaeicy for multiple eoramttnicatiom acrvicaa and will provide a eYetem in which calls wlll be routed to individuals mtber than plaoea, regudlaa of lxatton. Warkia; reaWenc, A peraoa ee defined in tlao Affordable }lousing t3uidoliaoa. Yard. The grounds stusounding a building onthe same lat or parcel whicrt ere uaoewpied cad ucwbshuetod above cad below ground, except fortreos end vegetation, ar u othorwiee petmitled in this Tills (See Sri lementary Aegtalatioas - •aaatitm 26.575•oao Yar ~... --_ Yarrf,~aat.Tluyardeusrtdingth~widthofaltrtort+a:oal,thodepthofwhichiantseaured by the mrrowroethoriaoatal distanco btatveea the float lot lice a~ the aea:at aurfaee ofthe principal building at grado. ar rear A yard extending the full width of a lot m parcel, the depth of whleh la maaaured m the narrovroat horiawatel distance betwcanthe mar lot Ilse e~ the nearoet cnr[lea of fha principal bnild• ing at grade. :3 Jun i4 2005 0: 41 Pr1 ftttorney at Lew ,.a~-,~JtlN 13.X0; 1'~.~.u6~~1 CGMn!U~' IEVE'.OFMiIJT J I \: - .+.v .+ a... . '"'CD i3~7 ?. & (Ord. Na. SS•2000, $ li; Ord, Ho, 1.2002 ¢ 16, 2004; Ord. No. 23.2004, $3; Ord. No. S, 2065, §2) xs.s7s.oea Ynrd.. The fo3lowing aupplwnerrtal rePulatiuaa shall apply io all yards. .. .+t. l~ojectiona Ingo Rsgaleed Yards Yards shall be tutobetructod from the g[ound to the sky at- ceptforthe following allowed projections, 1. Building esvee•-Elghken (18) inches; 2. Axohiteatural projwtione•• Ei~istcca (18) Ltahea; 3 Balooniee not utitiud ae m exterlaa pusegeway, may extend the hear of onerhitd of rho way belwaon the required setback cad the p:openy llae or four (4) feet. 4. Firc oecapea tcgttirod by the Uniform Huildiag Code-Four (4) foes; S. Uneova~ed porches, tlaba, patiw, walks, reSaining walla, steps and aimilu atructttrea, which do not exceed thirty (30) inches above or Mlow natural grade, ehtll be prmtttad to project into the yard witha,t roatrietion. projeativas may exceed thirty (30) inches below geode if deter- mined to berequired by the chief building official for window sgreu. • 6. Feacaa, hsdgee, berms and walls leeathen six (tS) feet in height, ae rneaetuod from eutunt grade, aze peemltkd in all required yard setbacks. (Sae, Supplemeruuy Regulations -Section 26.575.056, Feacee.), {"' 7. Driveways Dtivxaay accuse shall not oxcbod a depth o: hcight greater than twenty-Soto i r24) inches above or below grade within rho roquirod front yard eatbaok. Within all atlxr nquirod adbacka, drhroway aaveae shall not ezaeed a depth or he[gitt groater than thirty (30) lneh® above or belt><v grads Puking is only permitted within nquirad setbacks if it Is in m approved driveway I or other area approvcd for parking. ('~= B. Exutior merchrrtdiaing. Exteriar atcmitawdiriag is nos-toaidantiel was dietricro shall bo prohibited is afl required yard set baolu. 8. Required Yards lUljaneni to Pdrate Reads. A8 roquired yard setbacks under zone dlssriot reguletionr ere baeod on dlstmtx meseurod Brom the ri hg~,_t%~~.IiIIS:.s?f a rt"~~ea n brie wa . Whatt these 38 ao pnbtie dedication an the tot floe elttsdds t0 t!u aeaterliae of the rigAt-o -way, rho required yard setback shall egad fire duteaae specified under zoos district regulation, plus an edditioant diatmco equal to one-~1/2) of tits rlahtatewav a,a~~t• •_,Q,,~ way wen dadieated forpublicuso, 67 ~~!~ ~~ ~Q G 6 I i ~~ N 2 OBI m g~ 7 °~~ ~ $~I C O ~m ~ '" r ~~, o ~g_~ ,r $I eW a ~o ~I ~s iFw KL ,COTE & EDWARDS, LLC HERBERT S. KLEAI hsk(rJccelaw.na LANCE R. COTE, PC• trc©kcelaw.net JOSEPH E.IDWARDS, III,PC jeeQukcelaw.net EBEN P. CLARK epc r()kcelaw.net MADHU H. KRISHNAMLIRTI mbkQkcelawnet ATTORNEYS AT LAW ako admittd m Glifomu 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: ~c lni bi~ 201 NORTH bID.L STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSAffi.E: (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 "Properly"). This matter is an appeal to the Boazd 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 overium 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. Backeround 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 pazcel. 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. Wece this true, a literal enforcement ofthe 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 asingle-family home on the Property. Board of Adjustment ~'~. ~~ City of Aspen '~"~ r+ September 12, 2005 Page 2 The Current Aapeal Applicants ask the Board to reverse a decision by the Director. Section 26.316.030(E) of the Code sets out the standazd 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 Duector 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 chazacter 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 Boazd for their careful consideration of this matter. Sincerely, KLE1N, COTE & ED.W , S, LLC By: Herbert S. Klein gitlitz\boa Iv appeal 09-08-revbk.doc ~~ KLEIN, COTE & EDWARDS, LLC1 HERBERT S. KLEIN hakQkcelaw.net LANCER. COTE, PC' 4cQa kcelaw.net JOSEPH E. EDWARDS, Q<, PC jeeQkcelaw.net EBEN P. CLARK epcQkcelaw.net MADHU B. KRISHNAMIJRTI mbk@kcelaw.net ' atw admitted N California Board of Adjustment City of Aspen Community Development Department 130 South Galena Aspen, CO 81611 ATTORNEYS AT LAW September 12, 2005 201 NOAT'H MILL STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSAIH.E: (970) 925-3977 Re: Vaziance 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 Reaz 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 vaziance application. In the event the rs 1 Boazd of Adjustment r,,,,. ,; City of Aspen September 12, 2005 Page 2 appeal is granted and the Director's decision overturned, then you will be hearing this vaziance request. If the appeal is denied, then this letter is not necessazy 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 Boazd 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 Sazah Oates dated May 19, 2005. Under the Code, in order to authorize a variance from the dimensional requirements of Title 26, the Boazd must make a finding that three circumstances exist. The Board is very familiaz 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 pazcel; and (3) that a literal interpretation and enforcement of the Code would deprive the applicant of rights commonly enjoyed by other pazcels in the same zone district, and would cause the applicant unnecessazy 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 irregulaz shape or other peculiar physical characteristics of a particular parcel constitute a classic hazdship, 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 (F1a.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 Boazd consider several addition facts relevant to this application. First, McSkimming Road is in the Mountain Valley azea. 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 azea within this range and ,~+. '"', Boazd 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 standazds 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 Boazd 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, KLE1N, COTE & EDW. S. Klein gitliu\boa Itr-variance 09-I1 revec-fdoc .> AGENDA y~~~ r ~~~ 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 II. MINUTES ~~ z~~ III. DECLARATION OF CONFLICTS OF INTEREST IV. CONTINUED PUBLIC HEARING (05/19/05 & 06/09/05) A. Case #05-04. Appeal of an administrative interpretation 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 asingle-family residential dwelling unit 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 ra v~ MEMORANDUM TO: City of Aspen Board of Adjustment n ~~ FROM: Chris Bendon, Community Development Director I fl I!V~~} RE: Appeal of Administrative Decision -Setbacks for Lot 10, Block 3, Aspen Grove Subdivision. Resolution No. _, Series of 2005. DATE: September 15, 2005 SUMMARY: The McSkimming lot (Lot I, Block 3, Aspen Grove Subdivision) is a long rectangulaz 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 yazd 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 neazest surface of the principal building at grade." A pazcel'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 yazd shall be considered as the front yazd..." The code also dictates "the reaz yazd must coincide with the rear alignment of neighboring lots regazdless of which yazd is considered the rear yard by the owner." The code defines Reaz Yazd as "a yazd 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 neazest 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 yazd must be measured from the lot line adjoining the neighboring property. This would ensure that the rear yazd 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 particulaz outcome and cleazly 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. Applying the Land Use Code to development proposals is the responsibility of the Director. This is an administrative fixnction of the Director. Appeals of administrative decisions may be made by anyone and aze 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 Boazd of Adjustment is required to review appeals based on the following standazds 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 aze 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 adopting Resolution No. _- Version A, Series of 2005. NOTE: Staff has prepazed two Resolutions - Version A and version B. Version A upholds the Director's decision. Version B finds in favor of the appellant and reverses the Director's decision. 2 ..~,' RECOMMENDED MOTION: "I move to approve Resolution No. _, Version A, Series of 2005." ALTERNATE MOTION: "I move to approve Resolution No. _, Version B, Series of 2005." ATTACHMENTS: Resolution No. ,Series of 2005, Version A -Upholding Director's Decision Resolution No. ,Series of 2005, Version B -Reversing Director's Decision Exhibit I -June 14 request for appeal letter from Joseph E. Edwazds 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. 3 ,~> ~.r Version. A -Upholding Director's Decision RESOLUTION N0. _, (SERIES OF 2005) A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT UPHOLDING 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 regazding the manner in which setbacks aze to be measured on a pazcel of land known as Lot 1, Block 3, Aspen Grove Subdivision, from Rufus Crocket of Aspen (appellant), represented by Joseph E. Edwazds; and, WHEREAS, the Appellant believes the Director exceeded his jurisdiction in making an administrative decision; and, WHEREAS, the Boazd of Adjustment, pursuant to Chapter 26.216, is authorized to heaz 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 Boazd of Adjustment has taken and considered public comments at a duly noticed public hearing and has found that the Director did not exceed his jurisdiction, abuse his discretion, or violate due process in rendering the decision. NOW, THEREFORE BE IT RESOLVED that the City of Aspen Boazd of Adjustment upholds the Community Development Director's administrative decision regarding the manner in which setbacks shall be measured on Lot 1, Block 3, Aspen Grove Subdivision. Section L• The required Rear Yard setback of Lot 1, Block 3, Aspen Grove Subdivision, shall be measured from the western property line and the property owner shall have the choice as to which of the remaining three lot lines to define as the Front Lot Line from which the Front Yard setback shall be measured. 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 Resolution No. ,Series of 2005 -Version A. Page I ~. ~' 1 f portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. 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 Boazd 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-A.doc Resolution No. ,Series of 2005 -Version A. Page 2 f^` i \r/ Version B -Reversing Director's Decision RESOLUTION N0. _, (SERIES OF 2005) A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT APPROVING AN APPEAL OF AN ADMINISTRATIVE DECISION REGARDING LOT I, 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 aze to be measured on a parcel of land known as Lot 1, Block 3, Aspen Grove Subdivision, from Rufus 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 Boazd 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 heazing and has found that the Director exceeded his jurisdiction in rendering the decision. NOW, THEREFORE BE IT RESOLVED that the City of Aspen Boazd of Adjustment approves the appeal of the Community Development Director's administrative decision regazding the manner in which setbacks shall be measured on Lot 1, Block 3, Aspen Grove Subdivision and reverses the decision as follows: Section I• 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. Resolution No. ,Series of 2005 -Version B. Page I r~ 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 PlanningUnterps\McSkimming appeal Reso-B.doc Resolution No. ,Series of 2005 -Version B. Page 2 KLEIN, COTE & EDWARDS, LLC HERBERT S. KLEIN hsk(~Jccelaw.net LANCE R. C07$, PC• IrcQkcelew.net JOSEPH E. EDWARDS; lQ, PC jceQa kcelawnet EBEN P. CLARK ep~celaw.nel MADFJU H. KRISHNAMURTI mbk r(Jkcelaw.net dw admitted m Glifomia Board of Adjustment City of Aspen Community Development Department 130 South Galena Aspen, CO 81611 ATTORNEYS AT LAW September 12, 2005 ~,w Re: Variance Application for Lot 1, Block 3 Aspen Grove Subdivision To the Honorable Members of the Boazd: This firm represents Warren Maple, LLC and David Maple, LLC, ("Applicants") as owners of the above referenced property located on McSkimrning 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 Boazd of Adjustment (the "Boazd") first heard the application on May 19, 2004. At that hearing, the Boazd 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 pazcel. 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 Boazd 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 Reaz 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 201 NORTH MB.1, STREET, STE. 203 ASPEN, COIARADO 81611 TELEPHONE: (970) 925-8700 FACSIIvIH.E: l97019R-von Boazd 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 necessazy 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 Boazd reconsider and grant the requested variances, to allow the construction of a single- familyhome 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 Sazah Oates dated May 19, 2005. Under the Code, in order to authorize a variance from the dimensional requirements of Title 26, the Boazd must make a finding that three circumstances exist. The Boazd is very familiaz with these circumstances, and they aze, 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 pazcel; and (3) that a literal interpretation and enforcement of the Code would deprive the applicant of rights commonly enjoyed by other pazcels in the same zone district, and would cause the applicant unnecessazy hazdship or practical difficulty. Section 26.314.040. In determining whether an applicant's rights would be deprived, the Boazd is required to consider whether: (a) There aze special conditions and circumstances which aze unique to the pazcel, building or structure, which are not applicable to other pazcels, 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 pazcels, buildings, or structures, in the same zone district. Section 26.314.040. It is well recognized that the irregular shape or other peculiar physical chazacteristics of a particulaz pazcel consfitute 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 (F1a.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 squaze feet. The proposed variance would allow the construction of a home with floor azea within this range and Boazd of Adjustment © J City of Aspen September 12, 2005 Page 3 therefore the requested vaziance is the minimum necessazy 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 aze 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 caz" 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 standazds 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 awkwazd, 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 pazcels. Each of the points above is further addressed in the Memorandum of Staff. Applicants believe Staff has correctly analyzed the issues and ask the Boazd to accept Staff's recommendation and grant of the requested vaziances. Applicants, and our firm, thank the Board for their cazeful consideration of this matter. Sincerely, KLEIN, COTE & EDWARDS,,,LLC ~ ~ By: Her ert S. Klein gitli~\boa Itr-variance 09-11 revec-f.doc 1 :130 S. Galena St. Aspen CO 8161 i (970) 920-5090 - (970) 920-5439 FAX www.aspenpitkin.com Fa~c To: From: , Fax: ~ Pages• v Phone: Date: Re: CC: ^ Urgent ^ For Review • Comments; /4~` l ~~1i~/l~v~C~ ~U ~- ~'2JCJ ~j ^ Please Comment ^ Please Reply ^ Please Recycle ~ 1 07 2005 3:47PM RtRw^^orney at Law 970-963-2111 R uw oPFlces JOSEPH E. EDWARDS, P.C. 11 FENDHR LANE CAABONDALE, NIAHADO 61623 JOSEPH E. EDWARDS, P.C. e-msiljoeedward[Qwga.net (970j 963-2111 FACSIII4ILE COVER SHEET 'TELEPHONE (970) 963-2] 1I PACSINm.E p.l IAfPORTANT: THIS COMMUNICATION IS INTENDED SOLELY FOR THE USE OF THE PERSON NAMED HEREINOROTHERSAUTHOR/ZEDTORECEIVEIT. TBISCOMMUMCATIONMAYINCLUDEPR)VILEGEDAND CONFIDENTIAL INFORMATION AND ANY USE, DISSEMINATION OR REPRODUCTION R Y UNAUTHORIZED PERSONSISABSOLUTELYPROHIBITED. IFYOUHAVERECEIVEDTHISCOMMUNICATIONINERROR,PLEASE NOTIFYTHESENDER IMMEDIATELY. •ro: chK/s ~€i~/.A~iV, Co~'/fnViVcYy p~EVEGOp rnb-7y'T b/~c~YZ~'~ FAX NUMBER: ~n -6¢ 3~ FROM: Joseph E. Edwards DATE: 7/~~OS RE: ApP~c-- of ~xT iMrdz~~-V7a~/ Total number of pages: Lam(including this cover sheet). If you do not receive all of the pages, please call (970) 963-2111. DOCUMENTS TRANSNIITTED: I..~~T~z o~ T~r/vsm rr~~ n~~a~1 s6Xr>m Jul 07 2005 3:47PM Rty^*~rney at Law 97,Q-963-2111 p.2 LAW OFFICE JOSEPH E. EDWARDS, P.C. 14 FENDER LANE CARBONDALE, COLORADO 81623 JOSEPH E. EDWARDS, JR. e-mail: j oeedwsads@sopris.cet July 7, 2005 John Worcester City Attorney 130 South Galena Street Aspen, CO 81611 Chris Bendon Community Development Director 130 South Galena Street Aspen, CO 81611 Re: Appeal of Community Development Interpretation Gentlemen, TELEPiiONE (970)963-2111 FACSIMn.E (970) 9634111 Mr. Bendon has advised me by his letter of lone 30, 2005 that the appeal by Rufus Crockett, as an affected neazbypropetTy owner, of an interpretation by the Community Development Director ofthe text of Title 26, should be heard by the Board of Adjustment instead of the City Council. In our notice of appeal letter of June 14, 2005 to Sazah Oates, we referenced Section 26.316.020 B.4 as the authority for city council to hear such an appeal. Our reasoning was based on the language of several sections of Chapter 26.316 as follows. Section 26.306.020 A., provided that "The Boazd of Adjustment shall have the Authority to heaz and decide the following appeals: 1. Any decision or determination made by an administrative official unless otherwise specifically stated in this title." This is the section Mr. Bendon referred to as the proper avenue of appeal. However, I had read Section 26.316.020 B.1. and B.4., to be different appeal authority "otherwise specifically stated in this title," and therefore within the exception to the Boazd of Adjustment authority. The different appeal authority of Section 26.316.020 B, provided that "The City Council shall have the authority to hear and decide the following appeals: 1. An interpretation of 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." Section 26.306 F., provides that "Any person who has made a request for interpretation may appeal the interpretation of the Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316." That Jul 07 2005 3:47PM Rr"'brney at Law 97~-963-2111 p.3 section specifically authorizes an appeal by the person requesting the interpretation and is silent as to an appeal by other affected parties. However, Section 26.316.020 B.4., provided that the city council has authority to heaz "Any other appeal for which specific authority is not granted to another boazd." In sununary since the code says the City Council is to hear appeals of interpretations ofthe text by the Community Development Director, and since what is being interpreted is the intent of the City Council in adopting such text, and since it would be unique (and likely to lead to conflicting rulings by the separate appeal boards) to have ffie City Council hear an appeal ifan applicant filed an appeal and to board of adjustment to heaz an appeal if an opposing party filed an appeal, it seemed logical that the city counci! is the proper body to heaz the appeal. Nevertheless, in light of Mr. Bendon's letter indicating our appeal by an affected nearby property owner should be duetted to the Board of Adjustment, I have revised our notice of appeal letter to delete any reference to the body which will heaz the appeal and request that you forward our appeal to whichever body the city determines is appropriate to hear this appeal under the circumstances. Please advise if any appeal fees are required or if we need to take any other steps to perfect this appeal, and then let us know of the time and place of the public heazing on the appeal. V ery truly yours Joseph E. Edwards P.C. Bv: Jo epl dwards Jr. .~ 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, ~r ~ OCT 1 7 2005 I 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, ~~~C ~~~~ Susan Capiel/Collin ,.., ., :130 S. Galena St. Aspen CO 8161 ~ '(970) 920-5090 (970) 920-5439 FAX www.aspenpitkin.com ,~ 1,~ ~i U~ ~~~~~~^`~ ~~~ ~'~~ ~ ~~u~ ^ Urgent ^ For Review ~ :Reply ^ Please Recycle • Comments: v 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 Page 1 of 1 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. i wr LAW OFFICE JOSEPH E. EDWARDS, P.C 14 FENDER LANE CARBONDALE, COLORADO 81623 JOSEPH E. EDWARDS, 1R. e-mail: joeedwards@sopris.net June 10, 2005 Aspen Building Department 130 South Galena Aspen, CG 81611 Re: Lot 14, Block 3 Aspen Grove Subdivision Dear Building Department, N 1 5 2005 BU/LDIN~ p PN/~~,~C.~, TEL~P~ TiYYt7E / (970)963-2111 FACSIMILE (970)963-2111 I represent Rufirs Crockett, the owner of Lot 13, Block 3, Aspen Grove Subdivision, which is adjacent to Lot 14, Block 3. While we aze 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. ~l By: ~~ , J s~h . E wards ~i 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, ~~~~~~~ JIJf~) 5 ~~~5 C~u ~F~r 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 pazagraph 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. By: Joseph E. Edwards cc. Rufus Crockett Aspen Community Development Aspen Building Department Jun 14 2005 ©:53PM Rttorney at LaW 970-9E3-2111 p.3 ', "` f-Iistory: ~~4''nen Fritz Benedict created this subdivision, an adjacent homeowner, Olivia Dunaway, purchased at least six of the lots, which were adjacent to or which othetutise might hsve impacted views from her residence, in order to assure her privacy. One Lot so purchase was this Lot 1, block 3 that is itnmadiately adjacent her former residence. Ms. Dunaway recently sold her residence and alI the surrowlding lots in her ownership to the principals of the applicant, and thoca new ovvnem are attempting to m~imize 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 ttnderground easement for a city ptarrlp 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 beers provrided. Farther 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 relocated by applicants themselves. It is also unclear there is any need for future utilities for the former Ms. Dunaway pazcel, as it has been fully served by all utilities for years. However even assuming both such easements 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. ]t appears that the applicants do not want to build there for the same reason that Ms. Dunaway acquired Lot 1, ie it gvvouikd impact the privacy of the residence on the adjacent parcel. Therefore the applicant sought a variance from the front yard setback so that they could wnstruct a residence on the nanbw scrip of land between the switchback of the road and consavct a Great Wall of China-type house and place the impacts on the other neighbors instaad of their adjacent residence former ly owned by Ms. Dunaway. That variance application was unaninously 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 another 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 (who un~l recently was a key official in the community development cicpartment with many) that the community development director "intetpreP' that the definition of Front Lot Line" and thus d.e from yard setback should only apply to a ven~ small portion of what is ready 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:OlF't1 Argument: Rttorney at Law P'^1 Au/ 970-963-2111 p.4 ... ,, Wy ~^ As noted the only authority of the community development director is to make an interpretation of the `Ytxt" of the laud use regulations. An interpretation of text 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 t"mm a streeC" That definition is cleaz and ttttambi~uous. In this instance the Front Lot Line is the curved lines of the Lot as it is adjacent to a switchback of McSkinvning Road. Many lots have curved front lot lines that follow curved streets. The cttrves in this instance are more extensive as the ]ot is adjacent. a switchback on a steep hill, but that does not justify ignoring the cleaz definition of a front lot line. The 30 foot front yatrd setback requirement for the R-15B zone makes the narrow southerly extension of the lot into the azea between the switch back of the road unbuild able, which was obviously the intent in the original design of the subdivision. There is no authority in the code for the cornmuniTy 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 dir7ding a lot fmm a meet." That is not an interpretation of the "text" of the code, that is an evasion of the Text of the code. The code in Seetion 26.316.020 B 4 provides that this appeal shall be a public hearing before the city counsel. Please advise us when this hearinz will be scheduled.. Very truiy yours Jnseph E. Edwards P.C. BY~ / J sep E. dwaz s ~~~ June 30, 2005 Joseph Edwards 14 Fender Lane Carbondale, CO 81623 Re: Lot 1, Block 3 Aspen Grove Subdivis~on~ Dear Mr. Edwards: P ASPEN~PITKIN COMMUNRY 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.1 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: Sninc~e~re~lyn, ~ Q VvV`Y' t'v_ Chris Bendon, AICP Community Development Director City of Aspen ' Copy: John Worcester, City Attorney S3O SOUTH GALENA STREET ~ ASPEN, COLORADO Sten-I97$ ~ PHONE 970.92O.SO9O ~ PAX 97O.9ZO.S439 PMred on Reryded Paper Jun 14 200E E:59Pt1 Rttorney at Lam 97C-9E3-2111 p.2 '_~ ,,,~ ~~ RECEIVED LAwoFFICE JUN 1 6 2005 30SEPH E. EDWAItDS, P.C. HSfuv ;a FENDII! LA~f6 BUH•DING DEPARTMENT C.4AJ3O?~D.4L.E, COLORADO 8:623 JOSEPH E. F,DR'AfiDS, ]A. oriail: joeedwurdsL svpris.net June 14, 2005 Sarah Oates Aspen Community Development 130 South Galena aspen, CO 8 itil i Re: Lot 1, Block 3 Aspen Grove Subdivision Tear f:m•nh, ~,P~~ 2 ~~~ TE'..EPHONE (970j 963-21if FACSIMILE (97U) 963.271 1 ~, ~~;,~ (~, ~N~s Rufus Crockett as an affected neighbor would like to file an appeal pursuant to 26.316.020 $ 4, from the administrative determination that the front yard of Lott, Block 3, Aspen Grove Subdivision, is only the narrow tip of land on such lot at the apex of t'te switchback of the public troad. The Bounds for the appeal are I . The community development director under 26.306.010 4, has no authority to makc this type ,-~i " ltktttprt4ilivu" wtd Jeliue only a limited front yard for a partieulaz lot, but only has the authority tc 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 directar had authorih~ to define a front yard, the limited defined front yard in this instance is cleazly erroneous and contrary to the code definition of tiont yazd. =. That the "interpretation" in this instance is being used as a means to avoid public opposition to a pendine application for a variance to a ftt;nt yard setback requirement that has been opposed h}• virnsaUy the entire affected neighborhood, and appears to be unusual deference being given to the applicant's planner who until mcentiy was a principal ectployee of the community development department. 4, That applicant can build a residence on Ste 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. IN, COTE & EDWARDS, LL~ ATTORNEYS AT LAW HERBERT S. KLEAI hsk erkcelaw.net LANCE R. COTE, PC' Im(Ja kcelaw.net IOSEPH E. EDWARDS, W, PC jee@kcelaw.net EBEN P. CLARK epc r~i ccelaw.net MADHU B. KRISHNAMURTI mbk n ccelaw.net also admrcsel in Celifomia Board of Adjustment City of Aspen Community Development Department 130 South Ga-ena Aspen, CO 81611 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 87611 TELEPHONE: (970) 925-8700 FACSIMII.E: (970) 925-3977 As you may know, our firm represents Wan•en 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. Back round 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 asingle-family home on the Property. ~.ee ~ .\ 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 ofAspen, 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 & EDW S, LLC By: Herbert S. Klein gitlitz\boa Itr appeal 09-08-revhk.doc :130 S. Galena St. Aspen CO 8161 ~ '(970)920-5090 (970) 9205439 FAX wwnN. aspen pitkin.com x- Fax To: From: Fax: Pages: ~ 8 Phone: Date: Re: j CC: ^ Urgent ^ For Review ^ Please Comment ^ Please Reply ^ Please Recycle • 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 aze the following attachments: 1. Development Application Fee Policy, Fee Schedule and Agreement for Payment Form Land Use Application Form Dimensional Requirements Form. ~~ 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 apre-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 Nme. 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 aze 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 ~!' 546.00 250.00 00.00 220.00 365.00 365.00 190.00 365.00 190.00 Hourly Rate 220.00 CITY OF ASPEN COMMUNITY DEVELOPMENT. DEPARTMENT A¢reement 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 C[TY'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 $~60~ which is for ~ 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 Ey: Chris Bendon Community Development Director APPLICANT Date: Mailing Address: g:\su ppo rt\fo r ms\agrpayas. doc 1110/Ol 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 oP 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 Greenline, Stream ^ Subdivision Exemption (includes ^ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion ^ Mountain View Plane Lot Split ^ Temporary Use ~ Other: 1 ~~ L. ~~~ , ~ ^ Lot Line Ad~sttnent ^ Text/Ma Amendment ' ~ EXISTiNIi CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) PROPOSAL: (description of proposed buildings, uses, modifications, etc.) Have you attached the following? FEES DUE: $ ^ Pre-Application Conference Summary ~ ^ Attachment #l, Signed Fee Agreement ^ Response to Attachment #3, Dimensional Requirements Formes N/~ ~N ^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards All plans that are larger than 8.5" x 11" must be Folded and a floppy disk with an electronic copy of all written text (Microsoft Word Format) must be submitted as part of the application. ~., ATTACHMENT5 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 refereed 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 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. ATTACHMENT6 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 con-ectly 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. Z O N E I I RECEPTION#: 540087, 0712012007 at 09:50:44 AM, ARC H I'T E C T S 1 OF 6, R $31.00 Doc Code ADMIN L L C. P.O. BOX 2508 DECISION ASPEN c O 81 s 1 2 Janice K. Vos Caudill, Pitkin County, CO Ph 970.544 .3541 F 970.544 .8211 July 9, 2007 Community Development Department Attn: Joyce Allgaier RE: Lot 1-Aspen Grove Joyce, 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 McSkimtning 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 impactf d 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. Sine o , Dyla P - - al, one 4 Architects Accepted by: Joyce A Igaier Deputy Director-Community Development Department Attachments: 11x17 Reproduction (Not to Scale)Improvement Survey Partial Upper Level&Site Plan Section A-A Section B-B `l SITE BENCHMARK ! ` \ ELEV. = 8186.33" Fnd. Rebar w/Cap L.S. #201 " Lot 1, Block 3 as shown on the Boundary Survey flap of The Cohere Capital Corporation Property County of Pza2-n, ,State of Colorado ,r Parcel 2 9 - Vent Pipe AdS Water Valve ° OeQ tJ \ 3 DO \ o PeQ o $ wv X Wor Valve ve Hydrant Ce 4V0Iv G7fi � l � Wate Val a \ \ e 1 Ne'w Fire Hydrant Water Vo{ve Valy 1 ; A v lit it F*nce\ e ` 1 CO n C. Stai '\ 1 I a er Valve 1 ew r Manh v1� \ T4 GRAPHIC SCALE i S YE2 I�V ]inch h-EO ft �i \\ �r Legend and Notes: - o Indicates found monument as descried. - ® lndkntes 0 rebor with plastic cap LS. OUJ638 ewer Ma/nhol - Bearings ore based upon monuments/ound along the northerly boundary/foe Aspen or4 ,X uskrg o beming of 58IV400`E. of A en Croro SubdlKsi B/oek - This survey does not nprment o title search by this surwswr to detamine o"amblp w to d&—w 1 1� easements or other encumbrances of record 1 c �• m 1\ ��� And no title canmftmsnt was pm~at the tkns of this aurroy. This survey Is based upon the obo.w-mentioned Boundary Mop ' \� '\ n prepared by Sops£ngfneering-LLG o Ir J rn °111 O os noted tyshom h he retards of th401-Mkfn County d k and Rre 1 Surveyor's certificate: 1 t, Jeffrey Allen Tuttle, being a Registered Land Surveyor in ( 1 od`IUne� ��� CUIIlJ�' T.Igl�' the State of Colorado, do hereby certify that this improvement surrey was made under my supervision and is true V_i 30- �'� CURVE LENGTH RADNS DISTANCE BEARING DELTA and correct to the best of my belief and know/edge. I C11 64.091 67.601 61.72 1 513'4W45"W 54'19"30" f further certify that the improvements on the above described \ C2 78.54 25.00 SO.DO N76'40'00"E 180'00'00° parcel on this dote, April 10, 2006, except utility connections C3 94.15 125.00 91.94 N34'S4'42"W 43'09'25" are entirely within the boundaries of the parcel, except as C;41 78.851 125.00 77.55 N88'S8'13"W 36'08'39" shown, that there are no encroachments upon the described I \" I C51 31.431 12b.UU1 31.35 I N63'41'39"W 14'24'29" prises by improvements on any oohing promises except as indicated, and that there is no apparent once or sign of G2 any easement crossing or burdening oB l said parcel, except as noted. �P,..-....,..SrF 9.� ( .Manhole \� Je .PLtfle 3ise 3638 ate e•..vm. �•�„b aw,r:m�,,,„„,.,,,,,,,,„,,,,,, TlITTl�'SIlIIY�'YING S�RYIC�.S Springs, �lsperz Grove Sub—d2v2siort; 1 226 Heotner Lone Ewa br ✓T r'r r°-"'°"'-.«es rya „e.•.��r 0/en) .92 7 Colorado 816x1 Impro vem erL t Survey Pla t Dote: Ar JT 06 (970) 928-9708 (FAX 947-9007) aspen, Colorado 816'11 <0 1 cjh4ftYeOrlafnei Wa2ST-LA�Sti -TI?%(,,'A' t- S�GT�or�l Swrlot�l B l �11co, MiN Uwr- A g.+ 8155.� / / Tw. -#- ls4.2 / PEOPEe"M LIMB- / �hTGt4�D A,C�A � / �--f e?¢ &-eN-k�s A��A of Q NoN- Co�lf�o¢,►JAcnlcE r , T i I IN• 815'F.iS / TiN• 8154•' NoT�: CO%'TWa 9 uwN ykDE LOT I ' ASp jJ GQpV'�' P�Q,M�T . 0083 Zoob J4z8K ?AltTIAL uPPEe MVEt, srm h.W �. SCM.E: �/.4h: �•-per LuI �I Mz I I MG3KIMMINCx LANE SETBACK ro = I \ I MG3KIMMING - � I ,4PPROX 8158'-67 Y I T.O. SLAS- H.Q.1, 30" ABOVE ALLOWABLE FINISH GRADE MAX ALLOWABLE FINISH GRADE- BASED ON 30" ABOVE NATURAL GRADE I I I SECTION A- A I I 8 R T0. eL 6139'-9" z' �F � I �I �I MGace imm NG LANE S'~TBacK 1 I I I I MGBKIMMI1�s .P \ APPROX.Bt34'_ " T.O. SLAB- +__�_ _ 8154'-5 1/4"Y FiNie44 DRI WAY &RAQE 30" ABOVE ALLOWABLE 1=1NISN GRADE MAX ALLOWABLE FINISH GRADE- BASED ON 30° ABOYE NA'T'URAL GRADE I '` _ 1 � i I /— I r �ooR SECTION 5 - 5 � TA. si Bi39'-9"