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HomeMy WebLinkAboutminutes.apz.20100518City Planning & ZOning Meeting -Minutes - May 18, 2010 Comments 2 Conflicts of Interest 2 69 Shady Lane -Stream Margin Review 2 Silver Linine Ranch 91490 Ute Ave -Change in Use 3 Code Amendments City Plannine & ZOnInE Meetine -Minutes - Mav 18, 2010 Stan Gibbs called the regular meeting of May 18, 2010 in Sister Cities Meeting Room to order at 4:30pm. Commissioners present were Bert Myrin, Jasmine Tygre, Cliff Weiss, Bert Myrin, Brian Speck and Stan Gibbs. Mike Wampler, Jim DeFrancia and LJ Erspamer were excused. Staff in attendance were Jim True, Special Counsel; Drew Alexander, Chris Bendon, Community Development; Jackie Lothian, Deputy City Clerk. Comments Bert Myrin thanked Jackie for posting everything on line. Chris Bendon introduced Sally Spaulding, the Community Relations Officer for the City of Aspen. Sally Spaulding said that she has heard from the public saying it was too difficult to give electronic input to the boards so she set up an electronic email to make City Hall a little more virtual. Spaulding said the email for P&Z is P&Z@ci.aspen.co.us and asked the P&Z members who it should go to. Spaulding said that it could go to the chair and staff; it could be added to your packet; Option B is that you get the comments in real time so that you can stay on top of them. Either way a deadline should be set up so that people don't think that their comments can be received up until meeting time and still be considered with a certain weight and suggested maybe Monday at Spm. Cliff Weiss asked once they come into your central P&Z are you going to turn around and distribute to P&Z members. Spaulding explained that she had the central P&Z set up so it would distribute to all the members on Monday by Spm. Minutes The Commission decided to postpone the approval of the minutes until June 1, 2010. Conflicts of Interest Jim True said that Jasmine will discuss her issues with the Silver Lining Ranch and he suggested to discuss this when it comes up. PUBLIC HEARING: 69 Shadv Lane -Stream Marvin Review Stan Gibbs opened the public hearing on 69 Shady Lane. Chris Bendon stated they were requesting to continue this item to June 15"'. MOTION: Cliff Weiss moved to continue the public hearing for 69 Shady Lane Stream Margin Review to June 1 S, 2010; seconded by Brian Speck. All in favor, Approved. 2 City Planning & Zoning Meeting -Minutes - May 18, 2010 CONTINUED PUBLIC HEARING (05/04/10): Silver Lining Ranch 91490 Ute Ave, Change in Use Stan Gibbs opened the continued public hearing for the Silver Lining Ranch - Change in Use. Chris Bendon noted for the record that the notice, publication and mailing posted from the planner Mitch Haas. Jim True explained at the last meeting Jasmine had brought up the fact that Jasmine had worked in the past with Ed Zasacky who was the listing broker for this property and he didn't know if he was just being overly cautious but we have given this thought and as he explored this outside of what Jasmine's past relationship with Mr. Zasacky is and the fact that there is no present relationship and certainly no direct or indirect financial potential gain on this project with Jasmine. True said with further evaluation I don't think that there would be a conflict to our code; it's something we tend to defer to a member if he or she feels that there is such a relationship that there may be an appearance of impropriety but I don't think there's a direct conflict here that would mandate recusal on Jasmine's part. True said what we felt after discussion and he did discuss it with the attorneys for the applicant and attorney for the current owner, that are the co- applicants to this project that we felt it was best to defer to Jasmine as to whether what was best for the code. Cliff Weiss said that Ed Zasacky was his campaign manager in 2001. Jasmine said that she wanted to bring up during Commissioner Comments some things that were important to P&Z at that time. Jennifer Hall stated no comments. Rick Neiley said that he represents Andrea Jaeger was the current owner of the Little Star foundation and had no objection and the original land use application is worth consideration by this board and saw no reason for a conflict. Chris Bendon stated this is a public hearing for the specially planned area (SPA) for Silver Lining Ranch regarding the conversion of a property into a single family residence. Bendon reviewed the history of the property located at the end of Ute Avenue, described as Lot 5 of the Stillwater Subdivision. The subdivision was approved in the county by the BOCC and consists of 6 residential parcels and 1 open space parcel. This is the only lot that is located in the city the other 5 lots are located in the county. Lot 1 of the Stillwater became the affordable housing project; lots 2, 3, 4 & 6 are free market residential lots. This Lot 5 was given from Fabi Benedict to Andrea Jaeger for Andrea to run anon-profit organization to assist children with cancer. This is the only parcel in this subdivision that is accessed from Ute Avenue and is south of the river. 1996 Andrea Jaeger, the Little Star Foundation, requested annexation into the city of Aspen and Council approved the annexation along with development of the Silver Lining Ranch; approvals _C_ ity Planning & Zoning Meeting -Minutes - Mav 18, 2010 allowed anon-profit kids camp for children with cancer run by Andrea Jaeger. The property is zoned a combination of Conservation along the lower bench of the property and the building is on the upper bench with an SPA overlay and this overlay prescribes the allowable dimensions and types of uses. Bendon said that an SPA is like a PUD except that you have the ability to tailor the uses and specific use to the property. The Little Star Foundation operated on the property from 1999 when the building was completed unti12006; since then the property has had little usage and they were trying to sell the property so the proceeds from the sale could be used to fund the charitable mission. The operation moved to Southern Colorado. In 2007 the Foundation applied to the City to de-annex or disconnect the property from the City; City Council denied that request considering the non- profit institutional use of the property as an important community resource. In 2008 the Chabad entered into a contract to purchase the property and use the property as a Jewish Community Center and there was an application to amend the JCC; the application was very controversial with the neighbors with traffic impacts and with owners in the Stillwater Subdivision. The application gained approval from City Council and the JCC encountered some legal obstacles with Stillwater Subdivision HOA and decided not to purchase the property. Bendon said the property is now under purchase contract with KAT Ranch LLC and the proposal is to convert the property to a single family residence with the Foundation's ability to continue to programming on the property for up to 5 years. Bendon described the property as having an upper bench and a lower bench; the upper bench is where the building is located and the lower bench is more riparian in nature probably within the 100 year flood plain and only used for outdoor programming and there weren't any structures of any substance on the lower bench. There was split zoning the upper bench was zoned academic and the lower bench was conservation with an SPA overlay. Bendon said that protective covenants were very common and were agreements that run with the property and enforceable only by the parties within the agreements. Bert Myrin asked if they approve tonight this would move forward to Council. Bendon replied there are 4 approvals requested and the SPA plan needs to be amended that is a recommendation to City Council. Bendon said the following conclude at P&Z the request to replace affordable housing on site; Special Review to allow an accessory dwelling unit to be attached to the main house and a Growth Management conversion for a Change in Use. Bendon said the proposal was to convert the structure into a single family and to remain the potential for the Foundation to continue to use the property for up to 5 years in the same manner as currently permitted. Bendon said the gross square footage of the 4 City Planning & ZOning Meeting -Minutes - May 18, 2010 existing structure was in the neighborhood of 18,000; roughly 14,000 is counted as floor area; there are certain exemptions to attributable floor area so there's an FAR of 14,000 and a gross square footage of 18,000. Bendon said there would be some interior reworking of the structure to accommodate a single family house use but the structure would remain as you see it today. Bendon said the SPA sets out the dimensions and accommodates this use within the zoning; that's the amendment that would happen. Multi-family replacement addresses the 3 affordable housing units on site that are requested to be removed from the property. The ADU is a Special Review; ADUs that meet all of the City design standards can be approved administratively; those that do not meet all of those standards can be approved by P&Z through this Special Review process; one of the design standards is that it is detached from the main residence so P&Z sees all ADUs that are attached. The last is a Change in Use Review in Growth Management for the allotments. Bendon stated that the standards of review were within multi-family replacement; the first standard sets out 2 options for compliance units being affected by affordable housing by demolition; this is not applicable. The second standard is specifically for the demolition of affordable housing and says that you can demolish affordable housing and the replacement housing can be in any form as long as you are housing the same number of employees. Bendon said the City didn't see the affordable housing as being categorically incompatible with the zoning or physical make up of this site; staff did not feel that this standard was met. The next standard deals with acash-in-lieu timeframe for affordable housing; there are no actual units proposed for replacement so we don't find the application meets the standard. The next standard asks the City and the applicant to enter into an agreement regarding the replacement units while there is no draft agreement regarding the replacement units and the City doesn't see any hesitation from the applicant providing such an agreement. The redevelopment credits standard is compliant and they are not requesting any exemptions from the program. Bendon said the next review is the amendment to the SPA. Standard #1 speaks to the proposal and the compatibility with surrounding land uses and this area is often characterized as a single type of land use. Bendon noted there were quite a variety of land uses in this area; single family, multi-family, free-market housing, affordable housing, commercial development, a recreation facility and a lodging property. Staff is not really of the position to say that a single family house is incompatible in the area; there are single family houses in the area. Standard #2 deals with the capacity of public facility; standards #3 and #4 deal with the develop 5 City Planning & Zoning Meeting -Minutes - Mav 18 2010 ability of the parcel and the suitability for proposed development and staff believes that these standards 3 & 4 are met. Standard #5 talks about the development and compatibility with the Aspen Area Community Plan and staff finds that the project is not in compliance with the AACP (attached as exhibit C). Bendon said the big concern with non-compliance with the AACP is that they are in a period where institutions, for profit businesses are doing the same thing; their assets need to be leveraged to pursue their mission and at peripheral perspective and it sounds like a great thing but staff is concerned about how that translates to institutions within Aspen. Staff was concerned about setting a precedent for that being the way you leverage your assets to pursue your mission. Bendon said that eventually eroding some of the foundation of the Aspen Idea. Bendon said the Change in Use review Standard # 1 deals with allotments, more of an accounting procedural and there wasn't an issue there. Standard #2 talks about the AACP and did not find the proposal in compliance with the AACP. Standard #3 asks that application conform to the zoning limitations that would be cured by the amendment to the SPA so staff finds if the SPA is approved then standard would be met. Standard #4 deals with the HPC approval and is not applicable. Standard #5 deals with housing mitigation and there is no additional housing or employees generated or housing that is necessary by this change in use. Standard #6 is the physical design on affordable housing and is not applicable. Standard #7 deals with public infrastructure and that is met. Bendon stated there is a requested approval for affordable housing because no affordable housing is being proposed either on site or off site and we don't feel that this review applies to this application. Bendon said the last review Special Review is for an accessory dwelling unit to be attached to the main unit. There are 3 criteria for this review; the 1 S` asks if the ADU promotes the overall purpose of the ADU program, the purposes of this zone district and general livability of the ADU itself; we don't have plans of the ADU itself so it's kind of tough to review its livability. Bendon said that staff doesn't categorically conflict with the purposes of the ADU program, it's a matter of design but an attached ADU can be very much in line with the purposes of the ADU program. Bendon said that the purpose of the Academic Zone District is to bolster education and academic activities in Aspen and permit housing; ADU doesn't necessarily fit within that purpose statement directly. Bendon said since the main residence was rather sizeable the ADU would be met fairly easily. Bendon noted the ADU be 6 City Planning & Zoning Meeting -Minutes - May 18, 2010 compatible with the neighborhood and staff believed it would be compatible with the neighborhood. Bendon said there were a number of reviews that the proposal was not in compliance with and emailed an amendment to the Commission. Bendon summarized the amendment asks P&Z to accept a credit for affordable housing based on the program that ryas most recently adopted that allows for a developer to build affordable housing unrelated to this application to receive a certificate from the City that is a transferrable credit and a developer who is required to provide affordable housing mitigation can use that credit to satisfy their housing mitigation. Cliff Weiss asked if that was Peter Fornell's . Bendon replied that he thought that the applicant was under contract to purchase those credits but he would let Mitch speak to that potential mitigation. Bendon said from the amendment the employee housing will be replaced with cash-in-lieu or with actual units through this housing credit program. Bendon said that he would imagine that the applicant is in a position where because Peter Fornell's project was just approved that in order for Peter to receive the certificate from the City he needs to build the project and have it fully Certificate of Occupancy and then someone could exchange the certificate to satisfy their housing mitigation; there was a timing question at a minimum. Bendon was concerned with the amendment because it doesn't necessarily provide for offsite housing; it provides either submission of a certificate or cash-in-lieu. Bendon said the housing replacement is provided with cash-in-lieu and not with actual housing so if the standards require actual housing then it's not satisfied with actual housing. Cliff Weiss asked about the calculation of cash-in-lieu on page 11 of the packet and so if there was acash-in-lieu payment it would be $1,160,813.75, correct. Bendon replied mostly, the discussion with housing happened before the application came in for planning review so housing was looking at 6'/4 FTEs and in a more generic format how would they treat someone who needs to mitigate 6.25 FTEs what would the cash-in-lieu be and would they accept cash-in-lieu on exchange for these units. Bendon said unfortunately they did not consider the standards of review that P&Z has. The housing standards of review are different than P&Z's but they weren't aware of that standard that it had to be with actual units. Mitch Haas said that $1,160,813.75 was a minimum; it wasn't going down. Weiss asked if there was a detached unit on this property. Bendon replied that Chabad had proposed a detached unit on this property. Haas said there was a 300 square foot pool house. 7 City Planning & Zoning Meeting -Minutes - Mav 18, 2010 Jasmine Tygre asked about the Stillwater private covenants prohibits affordable housing and Lot 1 Stillwater is all affordable housing; is that considered a separate homeowners association. Rick Neiley explained that at the time Stillwater PUD there were 21ots that were taken out of the strictly single family use category and those were Lot 1 and Lot 5. Neiley said Lot 5 was being considered tonight and Lot 1 was intended as affordable housing and approved in the county with subsequent litigation by some of the homeowners and to solve that they entered into an agreement which removed Lot 1 from the subdivision. Stan Gibbs asked the zoning before annexation. Bendon replied that it was zoned in the county. Haas said all of the other single family lots are built. Gibbs asked the zoning when Lot 5 wanted to de-annex. Bendon answered that it would have been a request that be forwarded to the county and he didn't know if they got that far; the City's role in the disconnection was to decide whether or not the property should be disconnected; they don't decide how the county should zone it. Weiss said that staff is not opposed to the ADU that it is no longer bolstering education and academic activities. Bendon responded one of the responsibilities is to have is to review the ADU for its livability and we are not able to do that at this time. Weiss asked if the ADU was by right, they can actually add this FAR. Bendon answered in residential zones where you are able to build single family house you can build an ADU by right as long as it meets the design standards one of which is detaching it from the main house. Weiss said there was an 18,000 square foot structure with FAR of 14,000 square feet sp where is the right to add to that. Bendon replied that it wouldn't necessarily be a right to add it and still has to comply with the zoning and the dimensions are set through the SPA; the ADU would have to be incorporated into the structure and not additional FAR. Gibbs said it was included in the structure. Haas said that it was included in the structure with no additional square footage. Myrin asked about the amendment to the SPA the first was that staff was not in a position to say that a single family house was incompatible and he guessed he understood that as neighborhood but as far as size is the size of this one compatible with the other single family homes in the neighborhood. Bendon replied no it was larger than the other single family homes in the neighborhood. Bendon said that in the city staff is used to house sizes much smaller than in the county and this property is accessed off of Ute Avenue. Myrin asked if P&Z was supposed to look at what the neighborhood is toward the city on the Ute Avenue approach or the physical boundary. Bendon answered as a P&Z member you have to set that balance point yourself; the way staff looked at it was not in terms of city/county 8 City Planning & ZOnInE Meeting -Minutes - Mav 18, 2010 boundary as much as the logistics of the land but look at what is the neighborhood and how it is comprised. Mitch Haas, Haas Land Planning, representing the contract purchasers of the property as well as the current owners, Kids Stuff Foundation; he introduced Jennifer Hall, Rick Neiley and Andrea Jaeger. Haas said that they have asked to amend the SPA in order to permit the single family structure while having the ability to conduct non-profit programs; they will add the single family residential through a Change in Use approval; proposing off site replacement of the specialized multifamily housing units and discussing allowing an internal Accessory Dwelling Unit through Special Review. Haas said the operational cost associated with running the Silver Lining Ranch on this property have exceeded exceptional means for the Foundation; the Foundation is under a contract to sell the property upon sale of the property the Foundation contemplates being able to afford to run scaled back camps and use the property for less expensive ancillary functions such as fund raisers and special events. Haas said the contract allows for 14 weeks of camps each year for the next 5 years without any payment of rent required. The Foundation is proposing that the property will be used as a single family residence in order for this to occur the SPA needs to be amended to allow for the additional single family use. Haas said they were not requesting a rezoning nor are they asking for the SPA to be replaced by a PUD; upon converting this property to a single family use the property will become a voting member of the HOA subject to all of the applicable covenants and that HOA is fully supportive of this request. Haas said the history of the property is that it was originally approved as a single family residential lot in Pitkin County; the originally owner Fabi Benedict gifted this property to Andrea Jaeger's Kids Stuff Foundation in order for the Foundation to further its mission to assist children with cancer. A lot of time and effort went into working with the City of Aspen to enable the use of Lot 5 as something other than a single family lot, namely a retreat for educational and cultural activities, housing and dormitory uses, healthcare facilities, dining hall and recreational uses. The extraordinary operating costs in Aspen and the altitude was not ideal for children undergoing various medical treatments. There were no deals or assurances made to the City of Aspen that the property would continue in perpetuity as the Silver Lining Ranch furthermore the zoning of the property was not negotiated for the public's benefit; according the public is not being asked to relinquish benefits for which they bargained instead all involved parties, the City, the County, Andrea Jaeger and the Kids Stuff Foundation worked toward a mutual goal in a good faith effort to make Andrea's and Fabi's shared dream a reality. 9 City Plannine & Zonine Meetine -Minutes - Mav 18 2010 Haas said the City did its part by granting the SPA approval and annexing the property; the Kids Stuff Foundation raised a lot of money and constructed the facility on the property. Haas said from 1999 to 2006 the Kids Stuff Foundation, now known as Little Star Foundation, ran weeklong camp sessions for 14 weeks at the Ranch and conducted conferences, meetings, retreats and special events. In 2006 it was determined that it was no longer economically feasible to operate in Aspen and moved their operation to a Ranch in Southern Colorado. Haas said that they tried to sell this property to another non-profit but it always failed; it is necessary that the property be allowed to be used in the original purpose for single family use. Haas said the surrounding lots contain large structures and the intense use of the Aspen Club, the Gant, offices, multi-family housing and heavily used recreational areas such as the Ute Trail. Haas said they feel that this parcel is consistent with the Aspen Area Community Plan with a single family lot; one of the goals for the AACP was to limit traffic and safety goals for cyclists and automobiles as well. Haas said the applicant is willing to put a conservation easement on the conservation zoned portion of the property. Haas said that there were areas in the building that were affordable housing units intended for occupancy by permanent and temporary staff of the Silver Lining Ranch and were not designed for rental not associated with the operation and were laid out with the intent for employees because you can only get to those units by walking through the building. Haas said the 3 existing units were deed restricted and will be eliminated as part of the conversion to single family use. These units were meant to house 6.25 employees therefore these 6.25 need to be mitigated under the multi-family housing replacement requirements. Haas said with the HOA covenants the AH units will not be allowed on site and therefore can't be implemented. The HOA made it clear that the maximum density permitted on this property once converted to single family residential use is the house itself and one affordable housing unit. Haas said that currently his client is under contact for the purchase 6'/4 FTEs to be delivered from a project at 301 W Hyman Ave; the developer of 301 Hyman is in the process of putting together his building permit application; he hopes to have the project built by February 2011. Haas said if that certification will be acceptable and the preferred mitigation or the applicant proposes paying the appropriate entity the $1,160,815.75 cash-in-lieu immediately. Jennifer Hall, attorney for KAT Ranch, stated they were the purchaser for the property. Hall noted that Mitch was the staff person in 1999 that took on the original review. Hall said the timing of the interior of the building will not be for the 5 years that they have agreed to allow the Foundation to continue its work there 10 City Planning & Zoning Meeting -Minutes - May 18, 2010 in part; they can use those units for the 5 years. Hall said there were many large homes in the Stillwater HOA. Rick Neiley stated from the 1997 approvals several of the employees will be housed on site; the mitigation was specifically addressed to employees of the Foundation. Neiley said the employee mitigation wasn't required but you have to offer replacement to the community and the buyer is willing to ensure that the full amount of the units that were a part of the impacts of this specific use are being made available on a full time permanent basis to the community. Neiley shared the concern for the loss of cultural facility and educational facility in Aspen and they don't view this as a precedent setting property. Neiley said to make this land work in the context of a single family residence with this ancillary use by the Foundation is the only solution and encourage your approval. Andrea Jaeger said that when she started the Foundation in 1998 and they do not charge the families or the hospitals for these programs; the Foundation doesn't charge anything and fund raisers. Jaeger said the goal is still being reached for kids with cancer and their families that are in this community and the community at large. Jaeger said when they built the Ranch they built it to look like a home because they wanted these kids to not see a building that was like a hospital so the whole feel of this building was a home. Jaeger said they have to be there 24/7 with these kids and that was provided for. Weiss said that he was trying to understand the 5 years where you'll have use of the property, so you are potentially running your camp here at the property for kids of the valley or the state or the region. Weiss asked if Andrea would still run the Durango and Aspen Operations. Jaeger replied originally when they set up the Foundation it was to run programs here for kids that have cancer, with kids in the community and help kids who can't possibly get on a plane and they have scholarship programs for long term care. Jaeger said that they would continue on the exact basis of what we they have been approved for and they do not have the financial ability to do that here to maintain the building. Weiss said that they want to maintain some program here. Jaeger replied yes and what's happening is they will be able to use the facility but won't have those costs; they will be able to limit their expenses. Jaeger said they were asking to give these families a chance to go back to the initial goal was in the first place and they were asking to go back to single family. PUBLIC COMMENTS: 11 City Plannine & Zonine Meetine -Minutes - Mav 18 2010 1. Cheryl Malcolm Velasquez stated that she was the counsel for the Stillwater Open Space Homeowners Association and was in 100% support of this application and believes it will be a good fit for the neighborhood and fits within the parameters of the covenants. 2. Bill Crimmel said that he was here for the Chabad and worked with the local kids and Denver. Crimmel said some friendly advice is bringing these kids around Aspen is great and good for Aspen. Stan Gibbs closed the public comments portion of the public hearing. Commissioner Comments: Jasmine Tygre agreed with a lot of the points that Mitch and Rick have made in their presentation. Tygre said that she wanted to give her point of view of somebody who was on the commission at the time and particularly the ogress because she didn't think it was appropriate for the neighborhood and voiced concern about what she considered spot zoning. Tygre listened to all of the people who said wonderful things about this application and how much it would be controlled. Tygre said it was never really meant to be a community facility that members of the community would go there and if you look back to the original discussions a lot of them were centering on limiting the amount of public activity; only so many events; only so many sessions; to minimize the impacts to the residents on Ute Avenue. Tygre said that this was a good deed that they were doing; everybody that was involved in it was doing it for the best possible motive and no good deed goes unpunished and that's what P&Z is doing right now. Tygre said that if it wasn't for this particular use this property would have never changed, it would have remained a residential lot. And now after all these years the request is to basically have it revert to what it was originally zoned with the continuing use for 5 years. Tygre said that if P&Z had known they would have made the provision that Mitch brought out that the SPA was created for a very specific purpose and basically the only other than residential that is going to work on this property; why didn't we think ahead and say if anything that happens this reverts back to residential use. Tygre said that sometimes doing things according to the code is right; the reason she brought this up is because if P&Z approves something that is other than land use it will probably cause problems down the road. Tygre said all of these things that we do with good intentions can turn around and bite the P&Z eventually; here is a particularly good example of a project with the best possible motive that has turned out to be a nightmare for the current owner and this is something that nobody intended. Tygre said that what kind of uses can go on the property are contradicting ourselves by wanting this to be a community facility; it was made that for this particular use and now that this use cannot continue in its 12 City Plannine & ZOnInE MeetinE -Minutes - May 18, 2010 current form she felt that there was a moral obligation to return it to its underlying zoning. Brian Speck stated that he had the same feeling; this looks like it had great intentions and it has a different outcome. Speck said that he was inclined to approve with conditions some kind of change. Bert Myrin said that this was one of the decisions that he regrets on P&Z from the March 5, 2002 when he asked on the Little Red Ski Haus where he asked about any guarantees to reverting back to single family and Jasmine said that sometimes you have to take a leap of faith and approve things may eventually become single family homes. Myrin voiced concern for this as a process for non-profits or hotels or whatever the business is to transition to single family homes. Myrin requested a process to address staff's concerns and his as well that creates some certainty to facilitate non-profits to make this transition so that there is not a multiple catch 22 that seems to be going on. Myrin said he did not know what that certainty of expectations is; whether it is returning it to the raw land and that was what he saw different with this application; we are not only asking the land to change but we are asking a building to continue and that is where he has the most difficulty. Myrin said that he supports staff concerns on a lot of issues but wants to see a process by which this can be done and not a dead end. Jennifer Hall asked a code process. Myrin said that there was not a clear process and as a community we need a process to create some certainty. Weiss stated that he was completely in support of this approval and add a recommendation that the city accept the cash-in-lieu rather than the complexity of the Fornell, 301 Hyman. Weiss said the $1,160815.75 for Housing was a windfall and he bought their argument that this was never to be part of APCHAs housing stock. Weiss said that applications come to P&Z where code doesn't quite cut it and the commissioners have to adjudicate these things; code certainly has trapped the applicant and the buyer; they tried everything they could with Chabad and he voted against it and a lot of the reasons had to do with traffic. Weiss said that he was in support of this. Stan Gibbs said that he had some concerns with this and he understands there is a lot of benefit for a lot of areas of the community and the Foundation to go forward with this. Gibbs agreed with the concept that there really wasn't any affordable housing per se committed to the community; the housing was done for staff so he agreed that it wasn't relevant to this issue. Gibbs said the difficulty was the SPA and the process bothers him and he would like to see the property revert to a single 13 City Planning & Zoning Meeting -Minutes - May 18, 2010 family house and zoned properly for single family housing. Gibbs said this was an academic zoning and there were no uses for single family houses in academic so he was having a hard time approving a house in an academic zone and he wished the application came forward to zone this residential and somehow make the house conform or ask for a variance so there were issues for him that were unpalatable. Gibbs said he wasn't sure that he could dismiss this in this one instance and treat this in such a special way. Gibbs said he knows this is a Specially Planned Area but he now believes the SPA doesn't exist anymore; after 5 years essentially will be just a house and he is struggling with this issue. Gibbs said that maybe down the road we get another application that really addresses this issue head on so that`s where he is coming from. Weiss said that they could make a recommendation that the SPA goes back to Council so his question to Stan was what zone do you believe this should be; what is the rest of Stillwater. Gibbs replied that Stillwater was County and it has to be City and the most generous from the perspective FAR, a rural character so Rural/Residential; if we were to go forward and make a recommendation that he would like to see that the zoning changed to make this conform. Gibbs said that he did not like creating non-conforming that have no rational basis in the code. Myrin supported what Stan said on the zoning and would like to know from staff if that's a viable option that would carry forward and succeed at Council. Bendon replied that he didn't know if he could answer all of that; there is a benefit of cleaning this property head to toe if the use is being expunged then the SPA should be expunged. Bendon said that was from a different perspective than the landowner might have; a lot of times we look at these as blank slates and the last 50 years of stuff is wiped away; there is certainly an upside of cleaning the property and probably have the applicant speak to the logistics of what it means to them currently here today going forward. Haas stated he wanted to explain what they didn't go that way; they looked at this property and the overall goal; how do we get there. Haas said that they looked at the zoning, academic underlying zoning in this case is real zoning is a dimensional standard set by the SPA and the uses allowed by the SPA. Haas said the proposal included keeping the non-profit for a while. Jennifer Hall said that she and her client spoke extensively on this issue and one of the things about the not continued use and they have the 5 years in there and that agreement has been entered into with her client and Andrea. Hall said that decision was important to him that there be the ability to have some non- profit use on this property so he has never proposed extinguishing it entirely. Hall said her client does recognize that he has a problem with the HOA next door as far as them saying the only use allowed is Andrea Jaeger and is hopeful in the future that he would be able to work that out and he thinks that he is in a position to do it. 14 City Planning & Zoning Meeting -Minutes -May 18, 2010 Haas said that they are trying to amend the SPA to allow both uses; they are not getting rid of the approved uses. Hall stated that her client knows that he has to come back in for anything changed outside the 14 weeks or anything like that and realizes that he would have to come back and get P&Z approval and realizes that he would have to negotiate an agreement with the neighbors; there is a philanthropic element that is extremely important and one of the reasons that this was proposed with an extremely unique relationship and a decision between 2 parties and there was a lot more than just the technical rules. Haas said the structure was built to look residential, hide itself into a hillside and berm. Haas asked if it was really a good idea to tear it down to build something smaller or use what was already there by remodeling it on the inside. Hall said that when the structure becomes unusable her client would agree to a lesser square footage; the use is an important issue. Hall said that her client felt a need for a philanthropic element and he is comfortable with 5 years with Andrea and was something that he would like to explore. Jaeger stated that they don't charge for their programs, they have to fund raise for it. Jaeger said they went through Council with a signed contract in 2006 for anon-profit but what this is a single family with the ability for the non-profit to exist. Jaeger said the reason they built the Silver Lining Ranch was because they were staying in hotels with all of the kids and in the event of snowstorms by the time they got back to the hotels from the closed airport because of snow the rooms were already booked to someone else; so they were stranded and putting kids in private homes. Jaeger said that they didn't foresee that kids with cancer that are too sick to go to college they go off of their parent's insurance and they have no more insurance and now the Foundation provides a college scholarship program. Jaeger said the person that is in this application has helped these kids and is very community orientated. Gibbs said that they were looking at all the angles. MOTION.• Cliff Weiss moved to extend the meeting to 7:15 pm, seconded by Jasmine Tygre. All in favor, Approved. Weiss asked if this was going to be a single family home or is this going to be 5 years or maybe beyond anon-profit. Hall responded that it will be a single family home in 5 years; the owner intends to remodel so that it can be occupied as a single family home. Weiss said his fellow commissioners were concerned with the underlying zoning and they could convert the underlying zoning in 5 years and make this recommendation to Council. Weiss said that Lot 5 should become RR Zoning. 15 City Plannine & Zonine Meetine -Minutes - Mav 18, 2010 Myrin said what was bothering him was the exit strategy and there should be a process for anon-profit to close using ACES as an example. Weiss said that right now he wanted to deal with this application. Speck agreed to deal with this application; in the future we can take steps to change the process in the future. Gibbs asked if they could make a recommendation to City Council that this go forward with a zoning change. Bendon replied that P&Z has the jurisdiction to say that but if that recommendation is made it must be noticed for the potential rezone; it could be something that could be cured at Council since there is another step at Council. Bendon said it could be rezoned with a delayed effective date; rezone the property in 2015. Jaeger said that they were not interested after 5 years. Gibbs said that he keeps hearing both sides; we can't afford to operate in Aspen but we want to maintain an operation and he wanted to see clarity on this; the clarity is that they offered to extend for 5 years and he didn't have a problem with that but when it becomes a single family home it should be zoned accordingly so that in the future any decisions that come down are based on the zoning of single family house and not some SPA that doesn't exist anymore because that function is completely gone. Gibbs said that he would not vote for this if there was not some route to take this into a zoning change and he didn't know what that was and he was willing to defer it to Council if the Commission feels that is the right thing to do. Cliff Weiss said he understands the underlying, keeping things clean in terms of zoning and understands the applicant's interest in having the potential of running their program for 5 more years and once it is over it dissolves the SPA and converts to an RR Zone and that is our recommendation to Council. Bert Myrin asked Chris if this were brought back to P&Z with the direction that Stan was heading down as an unwinding process would there be more staff support but he wanted to send something to Council that looks like they have done their homework and we have a plan together. Bendon said there would be more staff support because it is cleaner and the Commission should only worry about your position as a Commission; don't forecast your position as someone else's; don't worry about where staff's coming from or Council might go. Discussion of the motion prior to voting: Myrin voiced concern for the existing structure that doesn't conform with the zoning. Bendon responded there were 3 routes to go there: in 5 years you can require that the structure be amended to fit within the zoning, so they would be taking off so many square feet or that it becomes legally established non-conforming use so that if it is redeveloped it has to conform with the then current zoning or that you grant a variance. Gibbs stated that the 2"d was probably the most reasonable. Jim True said that if you do a 16 City PlanninE & Zoning MeetinE -Minutes - May 18, 2010 variance theory if it is redeveloped it can stay at that size; if you do the legally established non-conforming version if it is redeveloped it has to go back and conform. Bendon stated that the applicant had mentioned a conservation easement on the lower bench. Jasmine Tygre said that she would not discourage the applicant from pursuing the Fornell option and the way it is written now is the cash-in-lieu only. MOTION.' Cl~Weiss moved to continue the meeting until 7:30pm seconded by Brain Speck, All in Favor, Approved. Return to discussion of the motion prior to the vote. Weiss said the only reason that he wanted to separate this out was to clean this up and make it as simple for Council and he feels if they buy into the Fornell deal it precludes someone else from buying it later. Weiss said what he was getting at was that Housing will not get an opportunity for a windfall of cash the way they have right here as easily in the future whereas getting a buyer for Fornell's property they are going to be much more likely than someone dropping $1,1 million plus in housing. Tygre said that she thought that was an option for the applicant, not for P&Z; there is a certain advantage in timeliness for getting a time that's closer to whatever impacts maybe. Tygre said that it would also help Peter Fornell out; she didn't see that it was a bad provision and it was pretty straightforward. True asked Cliff if his motion was the cash-in-lieu. Weiss replied yes. True suggested taking a vote. Discussion continued prior to the vote: Myrin shared a concern that was raised earlier that this being a precedent for other non-profits to leave town and we are providing a path to follow for other non- profits and he questioned whether this is the right path that we want to send everyone on. True said from a legal precedential value it is such a discretionary action; from a political or a personal precedential value that may exist to the extent that people can certainly raise the issue that you did it for them. True said it does exist but from a legal precedential value. Weiss said even if it did set a precedent any other non-profit trying to take this path would be here in front of P&Z and Council in order to take this route. Myrin said and asking the same thing. Weiss said that he did not want to make an example of this application in order to stop. Myrin stated P&Z was doing the opposite they were using this to encourage others. Gibbs asked if it was a matter of making changes to the code that we would like staff to consider that would help us deal with this in the future that would actually put such a process in place. Myrin replied yes. Speck said there's no cookie cutter and that's why we are here; we want a cookie cutter too. Gibbs said to Bert he heard where he was coming from but this situation maybe we are trying to do the very best we can to unwind 17 City PlanninE & Zonine MeetinE -Minutes -May 18, 2010 this rationally because this is a situation that we already have dealt with; the city has been dealing with this for 5 years or more. Gibbs said if we look at the future and say that how we will deal with the situations that come up in front of us and try to do it rationally and make some sense out of it; if we have changes to the code maybe we can do it that way. Myrin said there is nothing to rely on but trust and it is the institutional memory that he would like to have Council put on notice to have them give P&Z direction on and he didn't know if we can ask for that in this application or not. Bendon said by the virtue of the topic coming up; another appropriate venue is the AACP and speak to it fairly directly in fact there are provisions that talk about the sustainability of these institutions that we have and insuring their sustainability. Bendon said that this sub-discussion in the minutes. Myrin asked if the rezoning would take effect now. Bendon replied that it would be effective when they passed the ordinance but the rezoning would take effect in 5 years. MOTION: Cliff Weiss moved to approve Resolution #I1 with conditions and approve the SPA for S years, dissolve the SPA at the end of 5 years and convert Lot S to a Rural Residential Zone; this is a recommendation to Council that accepts the cash-in-lieu, the applicant can develop an ADU as part of the structure, and there will be a conservation easement on the lower bench; seconded by Brian Speck. AMENDMENT TO MOTION.' Jasmine Tygre moved to amend the motion to restore the option of the Fornell Property Affordable Housing Credits Process (as written in the proposal with June 1, 2011 date); seconded by Stan Gibbs. Approved 4-1 (Weiss, no). Roll call of Motion and Amendment: Tygre, yes; Weiss, yes; Speck, yes; Myrin, yes; Gibbs, yes. Approved 5-0. CONTINUED PUBLIC HEARING (05/04/10): Code Amendment Stan Gibbs opened the public hearing on the Code Amendment. MOTION: Jasmine Tygre moved to continue the Code Amendment to June 1 sr seconded by Brian Speck. All in favor, Approved. Adjou ed t 45 m - ckie Lothian, Deputy City Clerk 18