Loading...
HomeMy WebLinkAboutcoa.lu.ca.8040 Greenline.1972-1974RECEIPT Date %-~g 19_7y 2330 Received From I ~rL, R~ r r I ~ For AI rx , ~r ,.-,>~ . 1?~~~~,2~ I ACCOUNT HOW Pq~p AMi. OF ACCOUNT CASH AMT. PAID CHECK l~ BALANCE MONEY l DUE ORDER__ B Dollars ~ -.- _. _. RECEIPT Date ~ - ~ y ~ q_~~__ 2 3 31 1 t (~ Received From ~r'h i)CirJP ~ Address Dollars $ ~~ F~ FOr lC 1 mm tj ~']~ /~kW n-nc ~ LC ~2 ` ' y _T ACC OUNT HO`N PAID AMi. OF ACCOUNT CASH AMi. PAID CHECK . ' `.. _._ 2ALANCE DUE MONEY ORDER r~ ( .j,,, By I I~[.._ (`j Yl /1S IiJ/L __ ^1(AM R~EHo IT _- ` RECEIPT Date I -~~ 19Z_ Received From N-Pr(1 fem.-poi For I/ r ~ C~Mm. IlPK. Lzl~~ --_ lars 2332 ACCOUNT MOW PAI-D )F CASH I N7 ~ RECttPT Date ,-:~~ ,9~_ 2333 Received From_ __~-~uh~'jnrle~ -- Address- ~ ___ _ I _- Dollars $_ __~ For-~__.,~ ~e~. /~x~/7~!- .~n~,,~-(ors /}mfhcl• ----- ACC OUNT HOW PAID AMT. OF CHSH ACCOUNT '-' AMT. PAID CHECK BALANCE DUE MONEY ORDER B V J awaw ~•=••ym RECEIPT Date Received From --~--~ f--~--~--19 ~~- u~~~n~, For_~~~f~ `1f'rxrTnc I~ tz Dollars ~k h h~ f"t ~ G(G y ~ ?K ACCOUNT HOW PAID T}~l~S(~/ AMi OF -- ~ ~ -L~ ACCOUNT CASH AMi, PAID CHECK - 8K800 R•e~T~•a RECEIPT Received From_ Address For. Date I - ~G ~ 9-.?c~___ ., 2335 -_ 2336 ors $___ au ~- s. - - --_~ 2337- j rs $_-__ Ch.hk; ~-pry AMi. OF ACCOUNT CASH AMT~PAID CHECK .~. K C U N T Y I T K N C U N T Y OFFICE OF BUILDING INSPECTOR ~~ P.af3. AOX.G24 ASPEIC,R99LORADO 81611 .,'J OFFICE OF BUILDINC~II~ISPECTOR [[~- P,O. BOX 694 ASPEN, COLORADO 81611 1 F. .. j To ,~ ~'.hrrEa C. A! lly 5300 erry Kans s City, Mo. ~d'~- } aET UPyG ~' V ) T ~ ~h S } ,,c a,;z.et3 I iviEti -- ~;.; Atltln-. burr =n; ~ - . No such Slrc.a~__nesnp~ 17o such orfi,v ,, 5ry.,~~ /~ IIW remad in lh.ic ~, Aspe , Sohnson M~ r C ~1 ~a NOti,~,y /©~ ~~ ~~ r/''" .~ ~N t 1' ~ r.~ ~.~, ~'~. ~.-~~{ ~~?BIG. _-. 1st Notice. _ _. r{ 1,-' r env t.;itt.;: __ Return 3 Colo. ~r ___~~P r1 ~~ f;. ,. __ 1 1st ;'.;Mice 2nd Notice - Return~- ~~ ~P 2 2 19't2 . H~~. :, OFFICE OF BUILDING INSPECTOR .. I K N Q N T Y P I T K I N N T Y P.6. 60X 694 y.,... ,.~ ,_ A~EN;!eOLORADO 8161 `\ ,~ e~ +: ,.. .,n, p,ET U F ~~,~ Ty -. y.. o ~ ~r ~~~ ~~ FoR'?~!~o~p OFFICE OF BUILDING INN~PECTOR ~./ P.O. BOX 694 ASPEN, COLORADO 81611 W /J Rio Box Asp i o" ,.,~"~ ~'ari~~ /d~C del i~ r ~,,r „• ~ (i 4.a Y U ' 1 /'Jf c.' 7'7:. r ilYl~, i~y~i.~'q~, G. H. Lawrence, Est. ,t~; 1 Marine Plaza Milwaukee, Wisc. Jaffee Jr. •~-~--.-__ j J\/ ~r ~9G J1V tG...~ ~ ...~ . f am SFP ~ 'c+~ ¢ . t a _ PM ~ ''" ' "~ )c .-r~~/~, ~u ,._ 1st ;;otice 2nd PJotice_.,,,,,_ Return --ter. NAME 1st roc{ice P 7 2nd ~c~iice -~,R~eturn-~P-2'2 ::°..= ,..._ _ PUBLIC HEARING AND RESOLUTION DATES ON GREENLINE REZONING PUBLIC HEARING DATES September 26, 1972 Joint hearing - City Council, City Planning & Zoning, County Commissioners and County Planning and Zoning February 26, 1973 Joint hearing - County Planning and Zoning and County Commissioners January 29, 1974 County Commissioners hearing-Greenline Rezoning including in downzoning January 14, 1974 City Council Greenline 1st reading February 11, 1974 City Council Greenline public hearing (tentative) 2nd reading RESOLUTIONS DATES PITKIN COUNTY PLANNING AND ZONING April 4, 1973 COT~fISSION RESOLUTION ASPEN-SHADOW MOUNTAIN GREEN LINE REZONING PITKIN COUNTY COMMISSIONERS March 19, 1973 8040 RESOLUTION ASPEN PLANNING AND ZONING COMMISSION January 9, 1973 RESOLUTION ASPEN-SHADOW MOUNTAIN GREEN LINE REZONING ASPEN PLANNING AND ZONING COMMISSION June 19, 1973 RESOLUTION RESTATING RECOMMENDATION FOR GREENLINE REZONING APdD ESTABLISHING PRIOR RECOr~1ENDATION WITHI2d THE PURVIEW OF ORDINANCE ~p9, Series of 1973 ' ~ ~ ' . _c ft't.t;lTi'et3 ~t' {'iS.'~i!:Q_~~tui~:: a. ORDINANCE N0~ (Series of 1974) I I'u' T_E;~.Y B:: ~ y~ ,~ ~4~ ~ ~~~ ayS~ '-i~ I AN ORDINANCF. AMENDING THE ASPEN ZONING DISTRICT MAP REZONING FROM AR-1 ACCOMMODATIONS PS.CREATIOT~-L'ci',>AN DISTRICT TO AF - AGRICULTURAL/FORESTP~Y DISTP.:I:CT ALL THAT LAND WTI'HIN THE SOUTH ANNEXAI'TON TO 'T'HE CITY OF ASPEN AND ABOVE 8040 FEET MEAN SEA LEVEL, SAID ELE- VATION TO BE ESTABLISHED I"ROA1 U.S.G.S. BENCH i~if~,Ri: IN THE WALL OF THE SOUTHI~EST CORNER OF TIIE PITKIN COUNTY COURT HOUSE, ELEVATION 7906.802 FEET. WI~REAS, the Aspen Planning and Zoning Connnission has, by its resolution dated January 9, 1973, recom- mended the rezoning of alllands in the South Annex- ation to the City of Aspen above 804G feet mean sea level be rezoned to AF - Agricultural/Forestry, and WHEREAS, it was the finding of the Planning; and Zoning Commission that such rezoning is necessax:y to (1) conform to the recommendations of the Aspen Area General Plan; (2) protect the clear a9_r drainage basin, main- tain the natural watershed, prevent acceler_ ated erosion, reduce x-unoff and consequent sedimentation and stream pollution; (3) maintain the natural scenic beauty of Aspen Mountain to sustain our tourist based econo- my; (4) aid in reducing excessive population concen- tration, transportation problems and service demands that cannot be satisfied; (5) prefect the Aspcn A?oun~~.in profile *tr th its historical - cultural significance; (6) enhance the open space investments made by RECOPDI OF: F'ROC~ECiIf1iGS 100 LE<,ves the City and complement its efforts to "preserve a physical setting necessary for a recreation community" and WHEREAS, the City Council is in accord with the recommendation and agrees that the area of the city above the 8040 elevation line should be designated for agricultural and forestry uses so as to establish a variety of land uses within the city, contain our urban sprawl, retain the mountain in a near natural state to protect the conunun.ity against geological and pollution hazards that may result from its dis_ turbance, protect the city against utility and access demands that are impossible to meet, and preserve our most important natural resource, a mountain whose beauty is a center of tourist activity which consti- tutes the economic base of this community. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That all that area of the South Annexation to the City of Aspen and above 8040 feet mean sea level, as established by the U.S.G.S. Bench Mark in the wall of the southwest corner of the Pitkin County Court House, elevation 7906.802 feet, be rezoned from its present designation of AR-1 Accomdations Recreation-Ui:ban District to AF - Agricultural/rorestry. Section 2. If an.y provision of this ordinance or the application (2) RECC}REi O~ FF;QCE:.I)!f'J~S thereof to any person or circumstance is held in- valid, such invalidity shall not affect other pro- visions or applications of the ordinance which can be given effect without the invalid provisions or applications and to this end the provisio~is or applications of tlu s ordinance are declared to be severable. Section 3. A public hearing on this ordinance shall be held pursuant to the requirements of Section 24- 11 (d) of the Municipal Code on 1I~0 t_ea~es 1974, at p.m. in the City Council Chambers, City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen, Colorado, on the day of 1974. Mayor ATTEST: City C er FINALLY ADOPTED, PASSED AND APPROVED this day of 1974. Mayor ATTEST: City Clerk June, 1973 ASPEN PLANNING AND ZONING COMMISSION RESOLUTION RESTATING RECOMMENDATION FOR GREENLINE REZONING AND ESTABLISHING PRIOR RECOMMENDATION WITHIN THE PURVIEW OF ORDINANCE ~~9, Series of 1973. WHEREAS, the Aspen Planning and Zoning Commission did, by resolution dated January 9, 1973, entitled "Aspen Planning and Zoning Commission Resolution - Aspen-Shadow Mountain Green Line Rezoning", recommend rezoning from AR-1 Accommodations Recreation - Urban District to AF- Agri- cultural/Forestry District for the lands contained within the South Annexation and which are above 8040 mean sea level, said 8040 elevation to be established from U.S.G.S. Bench Mark in the wall of the Southwest corner of the Pitkin County Court House, elevation 7906.802 feet; and WHEREAS, the Aspen City Council did adopt as an emergency ordinance, Ordinance ~~9, Series of 1973, which ordinance suspends, for a period of one year, the issuance of building permits which would be prohibited under a proposed amendment to Chapter 24 of the Municipal Code, or to the Zoning District Map, in cases where amendment proced- ures have been properly initiated by the City and the Plann- ing and Zoning Commission has adopted a recommendation to the City Council on such proposed amendment; and WHEREAS, the Planning and Zoning Commission wishes to establish that its resolution above described is a con- tinuing recommendation which provisions come within the scope and intent of Ordinance ~~9, Series of 1973; NOW THEREFORE BE IT RESOLVED, that the Aspen Planning and Zoning Commission does hereby restate its recommendation that all lands contained within the South Annexation and which are above 8040 mean sea level, said J 8040 elevation to be established from U.S.G.S. Bench Mark in the wall of the Southwest corner of the Pitkin County Court House, elevation 7906.802 feet, be rezoned from AR-Accommodations Recreation - Urban District to AF-Agricul- tural/Forestry District; BE IT FURTHER RESOLVED, that no building permit shall issue which would be prohibited by the recommended rezoning for a period of one year from the date of the recommendation (January 9, 1973) unless an ordinance adopt- ing the proposed amendment has not been passed on second read- ing by the city council within said one year period, in which case all permits applied for during such period which otherwise conform to the existing zoning regulations shall . issue. Chairman PLANNING AND ZONING COMMISSION Dated this ~~ day of ,-~, 1973. -2- r, , s . 8040 RESOLUTION WHEREAS, Pitkin County has adopted a Master Plan in accordance with C.R.S. 106-2-5 entitled the Aspen-Area General Plan, and WHEREAS, the zoning code for Pitkin County, adopted prior to said Master Plan, has never been amended to bring said zdithg code into conformance with said Master Plan, and WHEREAS, the County Commissioners of Pitkin County have directed the Pitkin County Planning Commission to approve, disapprove, or offer suggestions with respect to certain suggested changes in said zoning code and to suggest any other changes such planning commission deems necessary to bring said zoning code into conformance with such Master Plan, and WHEREAS, the Pitkin County Commissioners have directed the Planning and Zoning Commission to develop suggested zoning districts and regulations for the currently unzoned and unincorporated areas of Pitkin County, and WHEREAS, the beauty of the Aspen area for residents and visitors alike lies largely in the beauty of Aspen's mountains, and WHEREAS, Aspen's mountains are a significant and important busi- ness attribute of the Pitkin County area, and the economics of the area being in large part dependent upon tourism and tourism being largely de- pendent upon the attractiveness and beauty of the area, and WHEREAS, there is currently under consideration comprehensive zoning of a portion of the Aspen mountains above the elevation of 8,040 feet, and WHEREAS, it appears that certain business, industrial or commercial buildings or structures are proposed to be built which might have great effect upon the appearance and beauty of the Aspen mountains above the elevation of 8,040 feet, and hence upon a significant element of the economic well-being of the area, and WHEREAS, the question of the practical availability of utility services and fire protection above the elevation of 8,040 feet is of grave concern to the Pitkin County Commissioners and at this time unresolved by them, and ~, »+~~ Page Two WHEREAS, the County Commissioners hereby find that temporary regulations authorized by C.R.S. 106-2-20 are required under the cir- cumstances, NOW THEREFORE, it is hereby resolved by the County Commissioners of Pitkin County, 1. That it shall be unlawful to erect, construct, reconstruct, or alter any building, structure, or improvements to be .used for any business, industrial or commercial purposes to or upon any property which is within the unincorporated areas of Pitkin County being considered for rezoning under that public notice previously published, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. 2. All-building or use permit applications shall be reviewed by the Pitkin County Building Inspector under the criteria established by subsection 1 above and if the proposed building structure or improve- went fails to meet the criteria of sub-paragraph 1 above such application shall be rejected. 3. This resolution shall take effect immediately as to all buildings, structures and improvements for which no valid permit has been issued or for which, if not covered by permit, for which actual construction has not begun, and shall remain in effect for a period of six months from the date hereof unless earlier repealed in whole or in part. 4. If any portion of this Resolution shall be determined to be unlawful then that determination shall have no effect upon the remainder hereof. I ~, - ~ I ~.. / / ~ ' T Dwight K. Shellman, Jr. Chairman PITKIN COUNTY BOARD OF COMMISSIONERS Dated this 19, day of March, 1973. j...r EXHIBIT ^A" An~area being part of Section 18, 19, and 30, Townshipl0 South, Range 84 West and Section 12, 13, 24 and 25, Township. l0 South, Range 85 West of the 6th Principal Meridian, Said area is more fully described. as follows: Begixming at a point being the 1/4 corner common to said Bastion 18 and 19; thence Southerly along the North-South center line of said Sections 19 and 30 to the South 1/4 corner of said Section 30; thence Westerly along the South line of said Sections 30 and 25 to the South 1/4 corner of said Section 25; thence Northerly along the xorth-South center line of said Section 25 and 24 to the cossnon 1/4 corner of said Sections 13 and-24; thence Westerly along the South line of said Section 13 to' the centerline of Castle ,Creek; thence Northeasterly along the centerline of Castle Creek to the South line of Section 12; thence Easterly along the South line of said Section 12 to the intersection with a contour line at elevation of 8040 feet above mean sea level, (said line to be established fry U.S.G.S. Bench Mark in the wall of the Southwest corner of the Pitkin County Court House, elevation 7906.802 feet); thence Easterly along said contour line to the intersection with the Southerly line of said Section 18; thence Westerly along said Southerly line of said Section 18 to the point of beginning. Excepting from the above description all that portion lying within the South annexation to the City of Aspen, Colorado as shown on the plat of record in Plat Book 3, Page 132 in the office of the Pitkin County Clerk and Recorder. January 2, 1973 ASPEN PLANNING AND ZONING COMMISSION RESOLUTION ASPEN-SHADOW MOUNTAIN GREEN LINE REZONING WHEREAS, the City of Aspen and Pitkin County have jointly initiated a rezoning application for portions of Aspen-Shadow Mountain, and WHEREAS, a joint public hearing of the Aspen City Council, the Pitkin County Commissioners and the city and county planning commissions was scheduled for, adver- tised for and held on September 26, 1972, and WHEREAS, based on the evidence, testimony, letters and exhibits submitted, the Aspen Planning and Zoning Commission finds as follows: 1. That a reduction in population density that could be accommodated by the present zoned capa- city is necessary to encourage the most appropri- ate use of land, lessen congestion in the streets, improve safety from fire and natural hazards, to facilitate adequate provision for transportation, water, sewage, drainage, open space, public buil- dings and other public requirements, to avoid undue concentration of population and destruction of existing physical environment, prevent the over- crowding of land and promote the general welfare of the community. 2. An original error was made in the 1955 county zoning and an error repeated in 1967 when the city - 2 - zoning was applied with the South Annexation; land use forecast was inaccurate since the appli- cation area was not considered developable and investigation on the physical conditions of the area was restricted because of the limited infor- mation available at the time of the 1955 and 1967 zoning. 3. That change in conditions has occurred making the present zoning incorrect and it is necessary to change the existing zoning to prevent various harms from being created against the community. 4. The proposed change of zoning was preceded by careful study, is in compliance with a basic plan for land use and is made in accordance with an adopted plan which considered the needs of the community as a whole; the adopted Aspen Area General Plan is on file with the County Clerk and Recorder and has represented a meaningful advance notice of the intended land use policies and development pat- terns of the City of Aspen. 5. That the climatic and meteorological conditions of the application area justify a change in zoning to protect the clear air drainage basin for Aspen necessary to maintain quality air standards; that alteration of soil and vegetative cover to the ex- tent that will result from presently allowed land development activities would drastically upset the natural watershed, greatly accelerate erosion, - 3 - decrease quality of runoff because of increased sedimentation, increase quantity of runoff, and create excess costs of water filtering to avoid stream pollution, 6. Maintaining the natural scenic beauty of the mountain landscape has become an increasingly important zoning consideration for Aspen because of its dependence on tourism and the need to protect the city sales tax base generated largely by visitors to the Aspen area; maintaining the natural scenic beauty therefore is not a matter of luxury, individual preference or judgement but a necessity since a reliable recreation industry is essential for the economic, cultural and general welfare of the community. 7. That it is important to protect the profile of the historically significant Silver Queen to maintain Aspen's position as a historical-cultural center. 8. The City of Aspen is expending $7,680,023.95 in public funds for the acquisition of open space lands to preserve a physical setting necessary for a recreation community; this investment must be protected, and no other alternatives exist with the exception of complementary zoning to adequately protect the investment. 9. The City of Aspen is preparing to make a sub- stantial public expenditure on transportation, and - 4 - this expenditure should not be jeopardized by allowing land uses which will create a trans- portation demand that exceeds the system s planned capacity. 10. The present zoning has not successfully dealt with one of its principal aims, control- ling the demand for public facilities and the burden of future taxes by changing zoning on lands which have not yet been developed. 11. That the impairment to property values which would result from the zone change is accom- panied by benefits to the public and protection afforded to others. 12. That the physical conditions vary along the proposed zone boundary between the AR-1 Accommodation Recreation and AF-Agricultural/ Forestry zoned districts and a separate site re- view and consideration of the rights land owners have previously established will be necessary for action on each development proposal along above said proposed zone district boundary. NOW THEREFOR BE IT RESOLVED, that the Aspen Planning and Zoning Commission recommends rezoning from AR-1 Accommodations Recreation - Urban District to AF- Agri- cultural/Forestry District for the lands contained within the South Annexation and which are above 8040 mean sea level, said 8040 elevation to be established from U.S.G.S. Bench - 5 - Mark in the wall of the Southwest corner of the Pitkin County Court House, elevation 7906.802 feet, BE IT FURTHER RESOLVED, that the City of Aspen shall have established on the the ground the above said zone district boundary of 8040 elevation. ~_ Chai n Planning & Zoning Commission Dated this~~~tday of Qii'LC.(~G' 1973. ,__.®, r P. O. Box BB Aspen, Colorado 8161 I (303) 925-4066 PROOF OF PUBLICATION STATE OF COLORADO > Copy of Notice 1 ss. County of Pitkin ) r..,-.-r LI _ 1 i. __:?~~.,_._:-,_....-:.~~.`~..____....__-_.__.._-_ do solemnly swear that r of ASPEN TODAY; that the same ~ Sri" ~. ° 1 t7T a the . t i _ ., _ _ - .... am ! as Fw:ca. l'a ~ ~,~ maw ~/'.A f~ is a weekly nev spaper pturted in [thole oc part, and published in We f ~ivm v~r~$rar YS'~~ ,, .,,, ~,~ County of Yitkin, State of Colorado, and has a general circulation ruolice is herehv gwen roar a ionl %„mi: ublished continuously and un- s been h Near.,q Is schetlm=<+ m mz Dsr-i.r ' p a therein; that said newspaper a Courtroom, Caunry =ocrtM1ac;e, iiR interrup[edly in said Coanty of Yi[kin, for a period of more than fifty- caon~y, nsaen, co mrado or. seP+e~^~er 36. 19]3 3~Baq P.h1, rP wns~".°r cna~'9 .ru two consecutive weeks next Prior to the Hirst publication oY the a cordon of me Pln in 'ovn:y zan ~-! Dlsrricr Map foam AR-1, ACCO'6~ annexed legal notice or advertisement; that said newspaper has been Moonnors natl Rer.Re:tT ~blv ~'- TRICT antl T, lOUR15'' D6 iR ICT. :-o'n adlnitted CO the 1•~nlted ate [eS mali3 a9 SfCO~nd-~rla SS mattP,r Under the or which are hign tlmsBy res~tl enr~a~ d~s- rr ic!5, antl R~IS, RESI:`EN?IAL DNS1H- provisions of the Act of rlarch ~. 1Si`J, or any amendments thereof, li T. 2 IpW GFn Sin' r'S Cen!,al C~~S"iC t. :~i - s,e-a. xcRlcu LTURe antl FIRES rRv and that said newspaper is a weekly newspaper dolt qualified for DISTRICT, a low bensfN rest^_n ria~ ors- . lr lCi; also ie Con s: r!er cnany'cP a rorflc pLLbhehing legal ILO [ices and adV'ePClBemenlti Wlth the nlealling Of the of the City o1 Aspan Zon lag DG~nrr Nsu from AR-I. ACCON.;ACOM1 LCNS. REG FEATION-URBAN DIS T,C'CT, a n5n laws of the State of Colorado, aenslry resiben nay - acmmrnx a~~or a'a ' Lim lied CPmmPrc lal JIS4¢r ro AP, GRb CU LTURA LFGR ES TRY DIi-RICT, d - low density ra iaeP!ial 6~v: ic'. That the annexed legal notice or advertisement was published in ~ The Lana mr whim 1^,e abcve mn=_ the regular and entire issue of every number of said weekly news- ~n enrlnao lamrbteC~as ~r ro~h.i no ^in ~a flCUroerafM herein an.. 'n aCle 3 Ca'1 hereof. paper for [he period of ~..__. consecuttve insertions; and that - Tne PPm is N a nq s s d as a lc f hear) n or n Cirv r m the f1P9t pnblica ttOR Cyf 93l(1 nelleP vt'.15 In Lhe 159Ue Of sold Ile W&i1a PeP - r ono cP nq mis ~ ~ rl~~n- C FirR VI GO ~'3i. nS ,. C [Cnf..l ~ me 0oard K Cmnrr Gommsslon, artl Comm 95iJner S. -___,- _-__...__L - -.._._-_. dated •^ r' , .+ l~ a...._'.._ c.__ .iU., 19 qt sucM1 M1ea!ny all Per O ^. inl'rF6! ' f yov are maY appear mtl Ye hea. 1. ' unable to aDPear Pe¢ena',y 01 sv2n n nq Y]0 arf or.]c'G v 9Sc /:or V~fWS by IPf!c/ ' P~9y E. Mlk li.q Pilk^~t Ceoniy ' ~'. erk & R?carder r-ab es Gra•. Cirv C'arK, Ot, of a~'n In AsP'n Tcoar, >v etln esoav. ' \Adgusr 2l. 1913. Subscribed and sworn to befm~e me, x notary Dublic in and for the County of P;tkin, State of Colorado, this ___.______ _._._.- day of see attached _--- .. - A n.. Is....----- Notary Public ' my CORmliSSion ex Plt'CS ._......_-. __..... ___ _.__ F-. TRY Cltif RlCT cf ~R rouRl=r ~ ~ ~~ lER N Oi I A6 a0p F5'. t = ~ a C r«E I 14i1. El. l'NC '.EC ~9 I ZONE J I 4PPLILATION ~ ~, ~~ i - BOJNpA RT ` !~ \"~ 1 ~~./ 1~ h BOONDARY ' I ~ ~ I _ PRGPO$ED Af-2 ~ JLT JA,E B fCAE $,iRY DI$7RICT .- I r ~ ` ~ EK~ST ING A9-i 1 ACCSMOL aT ICVL _3 _n `C?EATCrv ..._L_......-c%IS NG 1. TOURS*--~_ oaoacSEO AF aGR:LaL raRE ~ i `~~ B FORESTRv a 4' ~n5 9 / RE< a cn 1 2GNE APhiCA nON BCUNiA9+ LE NTERLiNE OF CaSiLE CREEK Y n.a ~ i -t ~ ~V -1 ~ t t ~, sTxa cT. k .- j'-p ~ ~ .y. M . ~ Rezoning - 73-4 Pitlzin County & City of Aspen Mountain Greenline Legal Notice Notice of Public Hearing Notice is hereby given that a joint Public Hearing of the Board of the Pitkin County Conunissioners and the Pitkin County Planning and Zoning Commission is scheduled in the County Commissioners' meeting room, Pitkin County Courthouse, Aspen, Colorado, on February '~, 1973 at 5:00 P.M. to consider an amendment to the Pitkin County Zoning District Map from AR-1, ACCOMMODATIONS and RECREP.TION DISTRICT and T, TOURIST DISTRICT, both of which are high density residential districts, to AF-2, AGRICULTURE and FORESTRY DISTRICT, a low density residential district. The land for which the above amend- ment to the Pitkin County Zoning llistrict Map is being con- sidered is described as follows: (see attachment) The Pitkin County Zoning Resolution and Zoning District Maps may be examined in the office of the Pitkin County Building Department, Pitkin County Courthouse, Aspect, Colorado during usual business hours. At such hearing all persons in interest may appear and be heard. If you are unable to appear person- ally at such hearing you. are urged to state your views by letter. A11 information previously submitted on this matter at the September 26, 1.972 hearing sha].1 be resubmitted for the record by the Planning Office. P~'ggy E. Mikli_ch Y:i.tk:i_n County Clerk & Recorder Peblisiied Rezoning - 72-14 Pitkin County & City of Aspen Mountain Greenline Legal Notice Notice of Public Hearing Notice is hereby given that a joint Public Hearing of the Board of the Pitkin County Commissioners and the Pitkin County Planning and Zoning Commission is scheduled in the County Commissioners' meeting room, Pitkin County Courthouse, Aspen, Colorado, on December 18, 1972 at 4:00 P.M. to consider an amendment to the Pitkin County Zoning District Map from AR-1, ACCOMMODATIONS and RECREATION DISTRICT and T, TOURIST DISTRICT, both of which are high density residential districts, and R-15, RESIDENTIAL DISTRICT, a low density residential district, to AF-2, AGRICULTURE and FORESTRY DISTRICT, a low density residential district. The land for which the above amendment to the Pitkin County Zoning District Map is being considered is described as follows: (see attachment) The Pitkin County Zoning Resolution and Zoning District Maps may be examined in the office of the Pitkin County Building Department, Pitkin County Courthouse, Aspen, Colorado during usual business hours. At such hearing all persons in interest may appear and be heard. If you are unable to appear personally at such hearing you are urged to state your views by letter. All information previously submitted on this matter at the September 26; hearing must be resubmitted for the record by the Planning Office. Peggy E. Miklich Pitkin County Clerk & Recorder Published Rezoning - 72-14 Pitkin County & City of Asnen Mountain Greenline LegaY'Notice - Notice of Public Hearing tar ,- . v.ra-. / _ w~~ ~"M ~.. W-' Notice is hereby given that a joint Public Hearing is scheduled in the District Courtroom, County Courthouse, Pitkin County, Aspen, Colorado on September 26, 1972 at 8:00 P.M. to consider changing a portion of the Pitkin County Zoning District Map from AR-1, ACCOMODATIONS and RECREATION DISTRICT and T, TOURIST DISTRICT, both of which are high density residential districts, and R-15, RESIDEivTIAL DISTRICT, a low density residential district, to AF-2, AGRICULTURE and FORESTRY DISTRICT, a low density residential district; also to consider changing a portion of the City of Aspen Zoning District Map from AR-1, ACCOMODATIONS, RECREATION-URBAN DISTRICT, a high density residential - accomodat.ion and limited commercial district to AF, AGRICULTURAL/FORESTRY DISTRICT, a low density residential district. The land for which the above zone change is being considered is shown on the map identified as exhibit no. 1 and incorporated herein and made a part hereof. The Public Hearing is scheduled as a joint hearing of the City of Aspen Planning and Zoning Commission, City Council, Pitkin County Planning and Zoning Commission, and the Board of County Commissioners. At such hearing all persons in interest may appear and be heard. If you are unable to appear personally at such hearing you are urged to state yot:r vie~ss by letter. Peggy E. t~tiklich Lorraine Craves Pitkin County Clerk & Recorder City Clexlc, City of ~~spen Published August: 23, 1972 ~i' :.~ November 5, 1973 MEMORANDUM T0: FROM: SUBJECT Herb: HERB BARTEL SANDY STULLER 8040 GREENLINE: BEYER V PALO ALTO ~° c~~'~ ~~ y~ \L ~ r. ,~ ~1~ ^'L~~~ Ste` G~4`~ (O~f In response to a request to the City of Palo Alto I received a copy of the full case file of Beyer v Palo Alto, the first case to unsucessfully challenge the Palo Alto greenline ordinance. Please advise if you would like to read it. The city had, in its comprehensive plan, designated 5912 acres of foothills "Open Space, Conservation and/or Park Use." The land included both privately and publically owned property. The "O-S" zoning required a 10 acre minimum lot size and permitted agricultural uses, wildlife sanctuaries and conservatorties, and single family dwellings. The planning and legal considerations used to support the zoning district were (1) earthquake hazards (San Andreas fault), (2) fire hazards,(3) earthslide and erosion problems, (4) ecological preservation, (5) watershed preservation, (6) flood control, and (7) retention of open space (prevent urban sprawl). As to the latter, California has a Constitutional amendment declaring a public interest in conserving open space. In addition, state law requires every California city, statutory or charter (Palo Alto is a charter city), to adopt open space zoning ordinances by June 30, 1973. Beyers contested the ordinance declaring it (1) unconstitu- tional per se and as applied to his property; (2) confiscatory; (3) and an illegal attempt to reduce the value of his land in preparation for condemnation by the city for park purposes. The city demurrered (moved to dismiss) and the complaint was dismissed. Unfortunately the court did not specify its reasons for granting the dismissal. It is my understanding that the ordinance is again under challenge. I have asked for a copy of the ordinance from the city attorney's office. It might prove interesting and useful. a ai \~ (f r' '~^~~ „~, ~ ~y~ CITY ~~ ~~PEN aspen,c®~~~~~~~, sss~ box v w~ ,~ Memo To: Steven Ware, Attorney From: Herb Bartel, City/County Planner Re: republication of notice of public hearing for Aspen Mountain rezoning Date: October 26, 1972 Please review the enclosed description of the application area and contact me regarding the republication of the notice of public hearing for the Aspen Mountain rezoning, kp-hand delivered ,~'g~ ` ~* . ~. ~xJr a, l~ C I'I'Y .~-~ S P E N aspen,co~o~•ado, s~s~ box v ,a;~, ~• Memo To: William Carney, Attorney From: Herb Bartel, City/County Planner Re: republication of notice of public hearing for Aspen Mountain rezoning Date: October 26, 1972 Please review the enclosed description of the application area and contact me regarding the republication of the notice of public hearing for the Aspen Mountain rezoning. kp-hand delivered ~. ~IiNSON-LONGFELLOW and ASSOCIAis SURVEYORS-ENGINEERS Aspen -Snow mass-at-Aspen P. O. Box 5547 - West Village Annex Aspen, Colorado 81611 (303) 943-3496 October 25, 1972 GREEN LINE ZONING An area being part of Section 18, 19, and 30, Township 10 South, Range 84 West and Section 12, 13, 24 and 25, Township 10 South, Range 85 West of the 6th Principal Meridian. Said area is mcre fully described as follows: Beginning at a point being the 1/4 corner common to said Section 18 and 19; thence Southerly along the North-South center line of said Sections 19 and 30 to the South 1/4 corner of said Section 30; thence Westerly along the South line of said Sections 30 and 25 to the South 1/4 corner of said Section 25; thence Northerly along the North-South center line of said Section 25 and 24 to the common 1/4 corner of said Sections 13 and 24; thence Westerly along the South line of said Section 13 to the centerline of Castle Creek; thence Northeasterly along the centerline of Castle Creek to the South line of Section 12; thence Easterly along the South line of said Section 12 to the intersection with a contour line at elevation of 8040 feet above mean sea level, (said line to be established from U.S.G.S. Bench Mark in the wall of the Southwest corner of the Pitkin County Court House, elevation 7906.802 feet); thence Easterly along said contour line to the intersection with the Southerly line of said Section 18; thence Westerly along said Southerly line of said Section 18 to the point of beginning. Excepting from the above description all that portion lying within the South annexation to the City of Aspen, Colorado as shown on the plat of record in Plat Book 3, Page 132 in the office of the Pitkin County Clerk and Recorder. Planning • Design • Surveying • Engineering • Construction and Management of Land September 17, 1973 Dave Ellis City of Aspen Box V Aspen, Colorado 81611 Re: 8040 Line Dear Dave: F~` j r Box 1730 Aspen Colorado 81611 303~926~2688 \~ ~~ This is in answer to your request for explanation of the basis and methods we used for establishing the 8040 line on Aspen Mountain. The basis of elevation used was a value of 7906.802 on "BM 7909", a brass cap set in the courthouse wall. This elevation of 7906.802 was established by the U.S.C.&G.S. and is generally accepted as correct. Differential elevations were run in closed loops from the bench mark to elevation 8040.0 and brass caps stamped "E1. 8040" were set in concrete at some 17 points along the 8040 line within the City limits of Aspen. I believe these brass caps are within 0.10 feet of the elevation noted. Sincerely yours, ^~.~"' dob i e ies fa ~,(/an~ d /~e,.~ A Subsidiary of Trico Corporation Offices thrdughout the U/est .- !, ,~ _ _ c'~~:; z ~ „ 1. ;~ 1 '- r+ ~1 ~ p f•[~ ~+ ~ n + F .w ~~ t ~y' Y{ l S•.rt ;;' J f C f n -f•, i°'4., t ~~ i ~ a~ W P r' +vtl ~ 9f• ~ ~ R• ~ `~ L ~S G ~ b./ v i~ ~~ ~ l 11 ~ ~~ b ~ 5 p ~n ~ ~ ~ `-35' O Pl ~nnir,~ f~esign Surve_~ing • Engineerir!g • ConsVuciion ar.d h.6anagemcnt of Land July 25, 1973 Dave Ellis City of Aspen Box V Aspen, Colorado 81611 Re: 8040 Line Dear Dave: My suggestion for monumenting the 8040 line on Aspen Mountain is to put monuments in at random which are intervisible but bear no particular relationship to property boundaries. My estimate of the cost to monument the line in this manner is as follows: - Run Levels - 3 days $1000.00 - set concrete monuments, 2 hours each @ $72.00, say 20 monuments $1440.00 TOTAL $2440,00 This is my best estimate of the costs, but please keep in mind that this does not represent a bid or a top figure. If you require further information please call. Sincerely yours, ~, /? ^. - + Jams F. Reser Box 1730 Aspen Colorado 81611 303.925.2688 doh f'~ WtLi.m~t J. C:v:~t>>° TIi Ii \VIIEL'LER OPA R:A 7i0 US E. F'. O. r30X 3186 ASPEN, COLO}~gDO 8LG1 I (308) f12 i,-1 f>28 MLDSOr;A:~ DU24 Tp: 7?itkin County Planning andl.oning Commission, Pit}:in County Comnu.ssioners, Pitkin County Attorney and Aspen City Attorney FRp.}: F7i].liam J. Carney DATE: February 7, 1973 P.P: Lega]_i.ty of proposed Rezoning of Aspen Mountain FACTS I represent Spar Consolidated Mining and Development Company, a Colorado limited partnership ("Spar"). Spar is the successor i_n interest to three groups - two corporations called "Spar Consolidated "lines Company" and "Percy LaSalle Mines Company", and the personal holdings of the Broom Family. The present members of the partnership have a cash investment of over $1,600,000, plus interests in the predecessor corporations. The cash contributions of the limited partners can be verified in the Certificate of Limited Partnership recorded in Book 260 at pane 835 in the records of the Pitkin County Clerk and Recorder A financing statement is on file with the Colorado Secretary of State evidencing the investment of Electro-Care-Industries, Inc. These investments o:ere paid largely to long-term Aspen residents. The properties purchased by Spar have been acquired within the pas several years. Spar's properties fall into two basic categories - lode claims on Aspen Mountain and placer claims on Castle Creek. r ~..w Memorandum Page 2 ~-•, ... Tt is estimated that approximately 253 acres of land owned by Spar are under lease to Aspen Skiing Corporation. That lease leases the surface to Aspen Skiing Corporation for skiing purposes, and if. Aspen ceases to use any ski run for two con- secutivc years, rights revert to Spar. In addition, the lease reserves to Spar the right to conduct surface mining operations on the entire property, except for a narrow strip along each lift line. Spar otms`approximately 335 acres on Castle Creek. Spar's property on Aspen '4ountai.n i.s located in both the City of Aspen and Pitkin County, while its Castle Cree}: properties are located in the County. Existing Toning Pattern: The land in the City of Aspen is zoned AR-1, Accomodations and necreati.on. The land in Pitkin County is currently zoned T, Tourist and AR-1, Accomodations and Recreation, on .Aspen fountain, and T, Tourist, and R-15, Residential, along L Castle Creek. F3ecause of the huge number of claims owned in whole or in party by Spar, it: is extremely difficult to calculate the maximum possible density available to Spar. The matter is-complicated somewhat, by the s}:i lease and the fact that some terrain is not suitable for building, tdevertheless, some observations are nossible. For example, approximately 135 acres are wholly owned by Spar under the ski lease, and approximately 11 acres are not subject to the ski lease. 146 acres contain over 6 million square feet. If we assume all of this acreage is available to be built on at the lowest density available noo: on Aspen mountain the County's AR-1 classification, one unlimited unit could be built for each 1,500 square feet of lot area, or 4,000 unlimited units. Similar figures can be applied to the land on Castle Creek nova zoned Tourist. The potential value of these holdings is considerable. For example, approximately 11 acres near the base of the mountain contain over 479,000 square feet. If a value of $6 per square foot is used for these sites alone, they are currently worth $2,II74,000. These values obviously justify high development costs for water, sewer transportation, landscaping, erosion control and beautification. t,. ,...~ Memorandum Page 3 ,~•~ 'I'he proposed rezoning would drastically reduce available develop- ment opportunities. For. example, the 479,000 square feet at the base of the mountain which ar.e excepted from the ski lease are presently zoned A};-1 in the Cit:y of Aspen and T in Pit}:in County. With the exception of part of the Chance Claim (above Ute Avenue), nearly all of this ~~;ould be rezoned AF in Aspen and AF-2 in Pitkin County. Perhaps 2.5 acres of the Chance would remain zoned AR-1 in Aspen. The loss of available density is roughly as follows: Present Toning Claims Excepted froth SY.i Lease: Aspen AP.-1 (90°s) 431.,000 sq.ft Pitkin County T (l00) 98,000 sq.ft Proposed toning Maximum Value (at No. Uni_ts* $5,000 per unit) 2II7 $1,435,000 32 160,000 319 $1,595,000 P4aximwn Value (at No. Units $5,000 per unit) Aspen AR-1 110,000 sq.ft. 73 $ 365,000* Aspen A & F 37.1,000 sq.ft. 4 170,000*''' Pitkin County AF-2 48,000 sq.ft. 0 -0-_ 77 ~ $ 535,000. Net Loss: 242 $1,060,000 *based on unlimited units, and assumption that applicable height .and set-back requirements can be complied with. **si_ngle family lots valued at $35,000 each for tv;o-acre sites. A survey of all of Spar's properties is now under way. Without complete site studies it is impossible to predict site development costs. Preliminary review of site development costs for the single- family home sites under the proposed zoning indicates costs will exceed the maximum selling price of the sites, leaving little or no value for the land. Most of the balance of Spar's land is subject to the ski lease. Recent reviews of these holdings (which include the 11 acres pre- viously discussed) show the following totals for the Aspen Mountain Area: Acreage leased for skiing 253.05 Acreage not under ski lease 359.25 Subtotal 612.30 Less acreage discussed above 11.00 Total 601.30 r-. ~, 24emorandum .~, Page 4 This acreage is noc•r zoned either T or AR-1 by Pitkin County, and is proposed. to be rezoned AP-2. Assuming for the moment that. only the land not under. the ski .lease can bey built upon, 348 acre-s (359 Less 11) are available for development. The values erhich can be realized by building at available densities only at the most suitable sites are obviously quite high. Such values obviously justify sophisticated solutions to the transportation problems presented by the terrain of Aspen 19ountain. The density can also be utilized where the terrain and access permit, and a return of investment seems probable. Planned Unit Development is availablea. On the other hand, i.f the property is zoned AF--?-, the nu_ni.mum lot size is taro zcres, and maximum density is one two--family duelling, for a total density of 348 units, or a reduction of 96%. Planned Unit Development is not available, so that rnany sites mould be rendered useless because of terrain or access problems. j^7orse, AF zoning encourages subdivision spr.acal, which maximizes the visual impact of development. The cost of site development for the sites which appear useful under_ AF-2 trill either equal or exceed the price which could be obtained for the sites, thus rendering the property itself valueless. AFGUPIENT The proposed zoning is illegal. It violates the purposes of the city and county zoning rules and it deprives the property of any beneficial use. It bears no reasonable relation to protection or promotion of the public health, safety, and morals recognized by the courts and it is arbitrary as applied to the property in question. While it is true that each zoning enactment must stand or fall after consideration of many factors, several general rul.ero osed applicable to the present si-tuation maY,e clear that the p p zoning could not withstand judicial scrutiny. "For a landowner to prove that a zoning ordinance is unconstitutional as applied to his property, he must show either that the zoning ordinance is not substan- tially related to the public health, safety, or welfare, or that the zoning ordinance precludes the use of his property for any purpose to which it can be reasonably adapted. Villa e of Euclid v. Ambler Realty Co., 272 Huneke v. U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Glaspy, 155 Colo. 593, 396 P.2d 453 (1964); Baum v. City and County of Denver, 147 Colo. 104, 363 P.2d 688 (1961); City of Englew_oo:1 v. Apostolic Christian Church, 146 Colo. 374, 362 P.2d 1.72 (1961)." (Board of County Com'rs of Jefferson Co. v. Simmons, Colo. , 494 P.2d 85 (1972) Erickson, dissenting opi.nion.) .._~ Memorandum Page 5 ~~ The first ground, the general challenge to the exercise of the police power, subsumes attacks on arbitrary zoning as cell as objections to zoning where the "public benefit" is negligible, subjective, speculative or disproportionate to the value taken from the individual lando~ner. The other inde~~endent ground precludes restrictions wi property which decrease its value past a certain point regardless of public benefit. THE _RE'I,ON_IN_G_P°.OPOSAI~ DEPRIVES SPAR OF ANY REASONABLE USE OF ITS LAtiD A?dll TIIUSi:CS COi~7FISCA'PORY AIvD^VOID Colorado follows the general rules various state and federal courts have formulated to balance the police power of zoning against individual property rights protected by the Fifth Amendment of the United States Constitution and similar pro- visions in state constitutions. The earliest case in the area antedates judicial approval L of.zoning laoas. In Quintini. v. Mayor of City of Bay St. Louis, 64 Miss. 483, 1 So. 675 (18137), the court invalidated an "ocean viec•r" or.di_nance which prohibited all building on the ocean side of a hi_ghsaay, noting that: the pw-pose of the ordinance was solely beautification, and holding'it confi.sca- - tory. Colorado authority is in accord: - "Under no circumstances could an ordinance amending the zoning map in a way that would deprive the owner_ of all economic use be upheld. Colo. Const. Art. II, §15; U.S. Const. Amend. V." (City of Fort Collins v. Dooney, Colo. 496 P.2d 316 (1972j) The basic test of confiscation was set out in a practical, if vague manner by the Supreme Court at an early date. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Sd. 322, 325, Justice Holmes said: "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values * * * must yield to the police power. But obviously the implied limitation must have its limits or. the contract and due process clauses are gone. One fact for consideration in deter- mining such limits is the extent of the diminution. P7}~en it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act." /^^\ / _'~ (V ~ ,+ Memorandwn Page 6 Lita].e Colorado law exists in this area, beyond City and Coui~_of Denver v. Denver Buick, Inc. 147. Colo 121, 347 P.2d 919 (1960) :where a requirement o~ off-street parking confiscatory and invalid. Thus it becomes necessary to look to other jurisdictions for guidance. In Harrintlton Glen, Inc. v. *4uni.ciT~a1 Bd. of Adjustment, 7.43 A.2d 233, (N.J. 1968) the coLlri spo}ce to the problem I~ir. Justice Holmes raised, collecting authority. Quite simply, a restraint on all practical use goes beyond the boundary between zoning and eminent domain; it cannot be sustained as zoning. "The only distinction between such zoning restriction and an actual taking by the mw~i.ci.pality is that the restriction leaves the owner crith the burden of paying taxes on the property, cahile the outright taY.ing relieves hi.m of that burden. Ordinarily restr.ai.nt upon all practical use, such as that which would follow from denial of a variance, is spoken of in terms of confis- cation. Dlorr.is Cnty. Land, etc. v. Parsippany-Troy Hills Trrp., 40 N.J. 539,_i54-557, 193 A.2d 232 (1963); Kozesnik v. D4oniccrnery Trrp_, 24 N.J. 154, hts2, 131 A.2d 1 (1957); Graves v. Bloomfield. Planning Bd., 97 N.J. Super. 306, 315, 235 A.2d 51 (liaw Div. 1967); P!~ischiara V. Board of Adjust. of Piscataway Tcap_, 77 N.J. Super. 288, 2'92, 186 A.2d 141 (i,a~e Div.'1962) ; Kryscnski_ v. Shenki.n, 53 N.J. Super. 590, 597, 148 A.2d 5II (hpp.Div.), ce'rtifi:cation denied, 29 N.J. 465, 149 A.2d 859 (1959); Burke v. Borough of Spring LakeBd. of P.djust., 52 N.J. Super. 498, 503, 145 A.2d "190 (App. Di.v.195II)'Robyns v_ City of Dearborn, 341 t4ich. 495, 67 N.4d.2d 718 (1954); Ritenour v. Dearborn Trap. , 326 Mich. 242, 40 N.[•7. 2d 137 1949); Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 592, 117 A.L.R. 1110 (193£3); Bexson v. Board of Zoning & Ap*~eals, To~;rn of Hempstead, 28 A.D."i.d 848, 281 N.Y.S.2d 569 (1967); Saravo Bros. Const. Co. v__ Zoning Bd. of Review, Town of Johnston, k.I., 231 A.:',;. 9 (1967); Kent Cnty. Land Co, v. Zoning Bd. of Review, City of Warwick, K.I., 216 A.2d 51~ (1966); Denton v. Zoning Bd. of. Review, City of [9arwick, 86 R.I. 219, 133 A.2d 718 (1957); Annotation 117 A.L.R. ].117, 11'19 (1938)." (243 A.2d 233, 237) Piemorandum Page 7 r . Denying all practical use does not mean denying all use. "...regulations orhi.ch so restrict the use of the particular land as to render it valueless, to leave the oemer crith the right to use file land for purposes tahi.ch are not economically feasible or to permit the oorner_ only uses which are highly imnro`~able or practi.cal]y i_mpossTble under the circumstances have no reasonable tendency to serve the health, safety, morals, or welfare of the community. This is a taking of pr.opc:rty withrut due process of lava and amounts to confiscat.i.on. See 58 Ohio Jurisprudence 2d, Zcning, Section 92_. (Dusi v. Wilhelm, 266 N.E.2d 280, 282 (Ct.C.P1.Ohio 1970), emphasis added) L Economic feasibility and thus the right to practical use depends upon the circumstances in each individual. situation. See, Francis v. City a_nd County of Denver, 1G0 Colo. 440, 418 P.2d ~~19GG~ "A property owner may also be unconstitutionally deprived of any beneficial use of his property due to the topography or other physical features of hi.s land tahich either_entir~ly precludes tl'ie~usc of the land for any permitted use or, by reason of the cost of site development or._ low yie]_d of lots for resic~.enti_al development_ makes it econornic~~..lly un easibl.e to use the land there?=or. (Voel.c'rer v. City of Glen Cove, 212 N.Y.S.2d 835; .TcConnell, et, al. v. Incorporated Vill.aae of Tuckahoe, ?5 App.Div.2d 411, 266 Di.Y.S.2d 87.1; Tarrant v. Incorporated Village of l:oslyn, ].87 td.Y.S.2d 821, 19 i•1isc.2d '138, aff'd 10 App.Div.2d 37, 197 N.Y.S.2d 317, aff'ci 8 N.Y.2d 783, 201 N.Y.S.2d 796; Hyde v. Incorporated Village of Baxter Estates, 140 N.Y.S.2d 890, aff'd 2 App.Div.2d 889, 156 N.Y.S.2d 37II, aff'd 3 N.Y.2d 873, 166 N.Y.S.2d 314; Spanich v. City of Livonia (Mich.), 94 N.P7.2d 62; Lorris County Land Co, v. Parsippany-Troy IIi].ls Township, 40 N.J. 539;9; [~drldlife Preserves, Ir.c. v. Poole (N.J. Super. App.Div. 1964), 201 A. 2'd 377.)" Rathkopf, Tire Law of Zoning and Planning, Vol. 1, 1971 Cum.Supp., p. 65, emphasis added) McConnell, et al, v. Incorporated Vi.ll.age of Tuckahoe, 266 N.Y.S.2d 821 (App.Div. ) involved a fact situation strikingly similar. to the situation at hand. The court struck down the zoning change. "The main thrust of plaintiffs' claim is that they were unconstitutionally deprived of any beneficial use of the property by this zoning change due to the unusual topography of the site. f.,} ~..~ D1e.norandwn Page 8 "Plaintiffs paid $10,000 t.o acquire the rights of the buyer at the auction sale; the bid price was $?_5,000. The eruerts who testified for plaintiffs agreed that the property could not be feasibly developed for any uses included in P.e:>idence }3. One expert, with the aid of topographical surveys and other exhibits, described the slope of this parcel cahich ascended in its slightly more than 100 foot depth fro;n level 155 feet at one point on the str.cet to level _l9II feet at one point in the rear. This erper.t then analyzed that the cost of sate development alone to build four houses there a•:ould range from a loan of $16,800 per plot to a high of $35,500 per plot, these high costs being due to the deep excavation t•;or}: and to construction of_ extensive concrete retaining walls that would be necessary. "Trio-family de?ellings on this site a.nd in this neighbor- hood would not sell for more than $25,000 to $33,000 and, since the site development without a constructed L house toould in many instances exceed the sales price, lacl: of feasihili.ty_ is demonstrated..." (2fG P}.Y.S.2d 811, 82.3, emohasis~added) r_-.~__ In the present situation the topography of the area under consideration for rezoning is such that the cost of development, particularly the construction of access roads and the instal- lation of adequate mater a.nd sewage facilities, makes the cost of two--acre plots family homesites exceed their sale value. This in effect reduces the value of the land to zero. Further, it must be obvious that the land in question is virtually useless for agricultural purposes. This "zero value" situation arose in Curtiss-6~}right Core. v. Incorporated Village of Garden City, 57 N.Y.S.2d 377, 385, where the court held the zoning invalid as confiscatory, saying: "The court finds that the entire value of would be destroyed and that the value of be more than offset by the cost of deraoli buildings and of making the improvements fit if for residential use, for which it will not in tY:e now foreseeable future be (emphasis added) the buildings the land would skiing the t.o the land to is not no~.r and adapted." Memorandum Page 9 ..,. In Barney S Casey Co, v. Town of Milton, 324 Mass. 440, 87 id.E. 2d w ("1.94) marsh land alone a river front c-rhich had formerly been used as a coal storage yard 'and a lumber yard was zoned residential. The court noted that industrial and commercial uses would give the wrong impression at the entrance to the town, and would impair the vi et-~ of the river for some residences on nearby height:,. The court noted that placing footings and found- a{:ions for residences eaould be extremely difficult and costly, and strucY, dorm the zoning. The court dealt directly with the problem of aesthetics: "Aesthetic considerations may not be disregarded in determining the va_lidi_ty of a zoning by-law but they do not. alone justify restr.i.ctions upon private property merely for the purpose of preserving the beauty of a neighborhood or. town. The decision itself_ plainly demonstrates that the judge in reaching his conclusion relied principally upon the fact that the elimination of these residential restrictions upon the petiti-oner's land taould be likely to give one entering the town from Boston alot;g Granite Avenue a wrong impression of the attractiveness of the town as a residential community and also that the removal of the restrictions might result in interfering wi-th the panorama of river and marsh nova enjoyed by those living on elevated ].and some distance away. Apiece of marsh land which was formerly occupied by a lumber company and which was useless for residence purposes could not properly be zoned for such purposes taher.e it appeared that one ofsthe primary reasons for the enactment of the zoning by-lac~i teas that, i_f the premises were used for the drilling of oil, the masts and cleric}a would be visible from residences loca'~ea upon a nearby bluff. North Muskegon v. Miller, 299 2~Iich:. 52., 227 N.ta. 743. A by-law adopted For the purpose of providing for a beautiful and dignified village frontage along a public way in order that those passing along the way would be impressed with its desirability as a residenti.a]. community was not a sufficient basis for the existence of the by-la~;r. Dowse}> v. Village of Kensington, 257 N.Y. 221, 230, 177 Pd.E. 427, 86 ALR G42. Undue weight must not be given to aesthetic considerations oahi_ch can only play a.n incidental or insulary role and some real, substantial and sufficient basis for the imposition of zoning restrictions. Regard for the preservation of natural beauty of a neighborhood makes the enactment of a zoning regulation desirable but does not itself give vitality to the regulation (citations omitted)." 87 11.E.2d at 14-15 An almost identical factual situation arose in Cooper Lumber Co. v. Dammers, 2 N.J. Misc. 289, 125 A. 325 (1924) where lumber Memorandum Page 10 yard property along a river was rezoned residential. In striking down tlic ordin~:nce, the court stated: "The purpose of t}ie placing of this property in a residential. section is, as ~•?e infer from the testimony and briefs, for. the purpose of k;cautifyirZg in time this porii.on of the hank of the Plassaic River. 1:n other words, the purpose of p.r_ohibiti_ng this particular piece of property from being used for the purpose for which it i.s best fitted is aesthetic. As was stated by Mr. Justice Se?ayze i_n tyre case of Passaic v. Patterson Bi.11 Posting Co. 62 A. 267 'aesthetic considerations are a matter of luxury and indulgence rather than of necessity, and ii. is necessity alone which justifies the e~:ercise of the police poo?er to take pri_va.te property without compensation'." 125 A. at 327 L Topography and feasabili.ty of use Caere the crucial considera- tions i.n Tarrant v.Incornor.a.ted Vi_11_age of };oslyn, 187 N.Y.S. 2ct 133, 19 Pdsc.2e 2381 affirmed l_0 App. Div. 2.d 37, 197 N.Y.S,2d 317; affirmed 8 iQ.Y.2d 782, 168 Id.}~.2d 134, 201. N.Y.S. 2d 796. There the court struck doom single family residential zoning of a parcel of .land topographically unsuited for homes, where an access road could not be built to serve homes and the property surrounding it on three sides contained apartments. On Aspen Dlountain, apar.t.ments are only on one side but nropert}> toward Independence Pass i.s zoned AR--l, as well. Zoning out all uses except uses regarded as beautiful and desirable by the contmunit}> did not originate o;ith the current "gr.eenline" proposal. The judicial response has been that these uses ar.e commendable, but must be achieved by the eminent domain power, no L- the police pocaer.. In Dao_]_ey v. Tocan_ Plan an_d. Zoning Co~nmission of Fairfield, J_97 A. 2d 770 (Conn. , '19G4e ,, the tot~n of E'airfie_i.d rezoned property which had been previously zoned residential to a zone called flood plain dist.ri.ct. The area etas along Long Island Sound, and contained a tidal. stream where the sea ran inland durinr, high tides. Permitted uses in the flood plain district included parks, playgrounds, marinas, boathouses, Landings and docks, clubhouses, taildlife sanctuaries, farming, truck and nursery gardening and motor vehicle parY.ing. The court noted that the effect of the rezoning was to freeze the area into a practica]ly unusable state. It noted that most of the uses were of a town or governmental nature, and that farming and marinas were impos- sible. The court stated: "There can be no doubt of that, from the standpoint of private ownership, the change of a zone to flood plain district froze the area into a practically unusable state. c Memorandum Page 11 The uses orhich are pre::ently pernu.tted in the n~aw zone place such limitations on the area that the enforcement of the regulation amounts, in effect, to a practical confiscation o` the land, (cites omitted) Fur.Lhcr, al.thourh the object:i.ve of the Fairfield Flood and lrosi_cn Contr_o.l Poard is a le,.udable one and although tae have no reason to doui~t the high purpose of their_ action, these factors cannot. overcome Constitut.ione,l principles, The plair.tif.is have been deprived by the change of zone of any worthwhile rights or benefits in their land, Y~here most of the value of a persons property has to be sacrificed so that cornmuni_ty t~relfare- may be served, and where the owner does not directly benef.i.t from the evil avoided (see, eg, the Old Smoke Nuisance cases such as Sta-t.c: v. Hillman, 1)_0 Conn. 92, 14'1 A. 294), the occa.si.on is wpproprwat for the exercise of eminent domain." 197 A. 2d at 773--774 In finding this zoning unconstitutional and confiscatory, the court cited Denver v. Denvcs I3u.i_ck, Inc „ 141 Colo. 17.1. In. Hager v. _houis_ville_, 261 S.1~7.2d 619 (Ky. Ct. App. ]_953) a desgwation of land on a master plan as a "pondi.ng area" for_ flood coni:rol was held confiscatory and invalid. ~ In hforri.s County_La_nc] Improvement Co. v. To~•,~n:;nip of Parsippany-- Troy hills,_n0 -N,J. 539, 1.93 A.2ci 23? (1963) , reron.ing of -~.~--~~- • wetland was declared invalid. The plaintiff owned 6G acres i.n a s~;ampy area called Troy hieado~:,s. The s~,~ampy area was largly owned-by a non-profit corporation which was holding it as a wild- life sanctuary and nature study refuge. The swamp also served as a holding basin for runoff into the Passiac Fiver, which reduced the effect of floods in the remainder of the totmship. Plaintiff's land lay along a public road, and the plaintiff owned land on the other side of the road in another township which was zoned indust.r_i_al. The meadow a;ould have required substantial land filling operations before it could be used. The area in question was rezoned in a 'meadows development zone" which alloared only agricultural uses, raising of aquatic plants, fish and fish food, outdoor recreational uses operated by government agencies, conservation uses including drainage control, wildlife sanctuaries, hunting and fishing preserves, and various other facility uses such as transmission lines, towers, etc. The zoning ordinance also prohibited land fill operations e}:cept by special permit which would establish that no impairment of present use of adjacent properties would occur. The plaintiff applied for a permit for land fill, and this was denied, and suit was brought to challenge the zoning ordinance. The court, in holding the ordinance invalid, noted that the primary object of the zoning regulation was to retain the land substantia]_ly in its natural state, and that this was done in part by prohibiting land fill, which, due to the unstable nature • of the land prohibited effectively any building upon it. The court then noted that many of the permitted uses were quasi-public Memorandum Page 12 or pul:~lic in nature, and that the only practical use which could be made of the property i.^. as a hunting or fishing preserve or t~.~i.1d].ife sanctuary, which the court did not consider productive. The tour:t noted that the main purpose of enacting the regulations tans for a public benefit - use of the area as a water detention basin in aid of f:looc7 control, and preservation of the land as open space for the benefits taould accrue to the local public f: r.om an undeveloped area such as this. ,The-Court qu deed from the opinion o Mr.. Justice 13olmes iti Pc:nrisylvani:a -Cole Company v. Mahon, 2.60 U.S. 393, 415, 43 S.C. 158, 1'60, 67 L. Fd. 322-, 326 (1922) supra: "The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far i.t will be recognised as a taking. ***we are in danger. of forgetting that a strong, public desire to improve the public condition is not enough to erarrant achieving the desire by a shorter cut than the Con- st:ltuti.opal way of paying for the change." 193 A.2d at 241. The court's opinion went on: "[while the issue of regulation as against taking is L aJ_taays a matter of. degree, there can be no question but: that the line has been crossed caith the purpose and practical effect of the regulation is to appropriate private property for a flood water detention basin or _ open space. These are laudable public purposes and t~~e do not doubt the high-mindedness of their motivation. But such factors cannot cure basic unconsti.tuti.onality. Nor is the situation saved because the o~.m er of most of the land i.n the zone, justifiably desirous of preserv- ing an apl~ropriatc area in its natural state as .a wetland tai ].d life sanctuary, supports the regulations. Both public uses are necessarily so all-encompassing as practically to prevent the ererci_se by a private owner oz any worthcahile rights or benefits in the land. So public acquisition rather than regulation is required." 1S3 A. 2d at 241-242 To the same effect, see State of Maine v. Johnson,265 A.2d "111 (Me. 1970)(State T^7etlands Act prohibiting practical use held invalid). It is significant that many of the goals of the rezoning in the last two cases are quite similar to those expressed by the planning office at the September, 1972 public hearing - preservation of areas of natural beauty, wildlife, flood control, etc. And, like here, the permitted uses were either public in nature or not feasible. Surely no one would argue that forestry or agriculture are economically viable uses for the Aspen Mountain and Castle Creek areas. There are no agricultural operations in the area, and. no timber operations. The only other use allowed. in the City of Aspen under the AF zone is nurseries and green- houses. Surely no one suggests that all of the acreage within ~--, Memorandwn Page ].3 r the City limits proposed to be rezoned can support such a use in this small. community. Aspen is not the first conununi.ty to attempt to zone property as reside-ntial in an attempt to keep the property open. The result generally in such cases has been invalidation of the zoning as con,`.iscation, o~here the residential use is not f_easihle . In lsaton v. Sereeney, 257 N,Y. 176, 177 N.E. 412 (1.331) property in the Sit'y of Saratoga Springs was zoned residential anti hotel, but was sw_rcunded.by commercial uses rendering resi.dentia.l and hotel rise unsuitable. Note that building residences t•~as net impossible; it toou].ci merely have been economically foolish to develop for residentia]. use. The Court of Appeals discerned the real reason for the zoning classification, and struck it doom, saying: "Eaton cannot be deprived of his property for the benefit of the city park or_ to advance the State's interest in the development of Saratoga. These, of course, are worthy and magni.fi_cent causes which do not seek to progress by denri-wing private citizens of their. property without compensation. If the City of: Saratoga Springs desires to beautify the property adjoining its park and its entrances thereto, it cannot do so b_y the mere zoning process, if this results in rencier_ing private property valueless." 177 N.E. at 414 The New York Court of Appeals grappled with another problem of aesthetics at the same time in Docasev v. Vi.llaoe of Kensington, 257 N.Y. 221, .177 N.E. 427, 86 ALR 64?_ (1.331) There a small quiet too,~n was zoned entirely residential, including land on a sf.reet used for commercial purposes on the edge of the totan. In a thoughtful opinion by Mr_. Justice lie}unan, the court in- validated the residential zoning with respect to this property, even though a variance procedure was available in hardship. cases, saying: "The inference is reasonable that the property front.i.ng on Middle Neck Road has been included in the residence district primarily for the purpose of providing a beaut_~ful and dignified village frontage on the public throughfare. Aesthetic considerations are, fortunately, not wholly without weight within a practical world. Perhaps such considerations need not be disregarded i.n the formulation of regulations to promote the public welfare. (citation omitted) 'Public welfare' is a concept which in recent years has been widened to include many matters which ,~-, •,.~ Memorandum Page 19 ~,, .. in other times were regar.-ded as otrLsi_de the limits of governmental concern. Tts yet, at least, no judicial definition has been formulated t•~hich =i_s wide enough to inc].uc1e purely aesthetic considerations. Certainly an ordinance is unreasonable e;hi_ch restricts property upon the boundary o:E the Village 'Lo a use for which the property is not adapted, and t7tereby destroys the greater part of its value in order that the beauty of the Village as a whole may be enhanced. In such case the owner of the propcr.ty ca.~;not be required to aslc as a special privilea,e for a va.riat_i_on of the r_estri.ction. '1'he restriction itself const.i.i:utcs an invasion of his property rights." 1"/7 N.E. at 430. And see Chusud R_calty Corp v. Y.ensington, 40 Misc.Ld 259, 243TN.Y.S. 2dl~`=9 (1963). The rejection of the variance procedure is particularly r.e.levant to i:he current proposal, oahere vague references have been made to "special review" to ameliorate the confiscation tahich is apparentl}> obvious wen to the Planning Office. A1r. Justice Lehman rejected a variance procedure as saving the ordinance, because it required an app]icati.on to develop the property, while the oc•mer nti.ght wish i:o sell rather than to build, in which case he teould be penalized since a buyer would assume that it could not be used for any pw'pose except residential. L In testing whether a zoning ordinance is confiscatory the Ho]mesian approac}: t:o measuri_ng the value of the property before and after is, often used. The magnitude of-the restriction tahich is permissible under the police po~,;er i_s not clear in Colorado. There i.s some language tahich indicated that an ordinance becomes confiscatory taken there is no reasonable use to tahich an otaner can put his property. In City and County of Denver v, Denver Buick, Inc., 141 Colo, 121, 347 P. 2d 91'9 (1960),~ra, that point taas apparently reached when parking tans required of landowners in a business di.st:rict, even though parking lot=s are obviously a common use in such areas. The Colorado court has not yet used the IIolntesi.an approach of measuring the dollar value of the loss, but many other jurisdictions have done so. The New Yor}: courts have repeatedly used such a test, as have other states, and a brief summary of the magnitude of value reductions considered may provide some rough guidelines in this area. In Isenbarth v. Bartnett, 206 App. Div. 546, 201 N.Y.S. 383, affirmed ?31 I3.Y. 017, 143 N.E. 765 (1923) residential zoning was held confiscatory tahcre the property was worth $15,000 for residential use and $55,0',0 for business use, a relationship of approximately the same m~r..::u.tude as Spar anticipates for its , property. ,.~., ti Memorandum Page 15 In Flestwood Forest 23 I'd.Y.2d ~i2~F, ?y7 frorn auariment use w}zere the value of between $10,000 an depending on which ,~ ~~ L'states, Inc, v. Village of South Nyack, N.Y.5.2d 7.'19,. 244 N,E.2d 100 (1969), rezoning to single farni:Ly residential was invalidated land was $125,000 for apartment use and l $42,500 for single-fa.mi.ly resi_dcncc use, e~itness o,~as believed. In Ilelms v. C_i_ty of Char].ot.te, ]2.2 S.P. 2.d 817 (Pd.C. 1961) , the court struck down residential zoning y?hcre it u;as shown that "upon completion of a residence upon "the lot, the market value of the house and lot wou'Ld be less than the cost of constructs_ng the residence." 122 S.E.2d at 82.4 In National Land & In~,~est.r<<cnt Co. v. Kohn, 419 Pa. 504, 2.7.5 A.2d 597 (1965), suhuz:~ban zoning into Lour-acre residential zoning t•?as held invalid where if used as one-acre home sites the land o:as worth $260,000, and its vaJ_ue as rezoned Baas only $175,000. In McConnell v. Village of Tuckahoe, 25 App. Div.2d 447_, 266 N.Y.S. 2_d 821, ~:~here site development costs for_ four lots t•?ould range from $16,800 to $35,500 per plot, and two-family dwellings in the neighbor=hood could rot be sold for more than $2.5,000 to $33,000, the court held the zoning confiscatory. L In Dusi v. Wilhelm, 25 Ohio I~1isc. 111, 266 N.E.2d 280- (19'10) , the court found resdentia]. zoning confiscatory ~•;hcre property could he sold for $3,500 %or sing ].e fami]_y residence sites and _for a. net profit of $68,400 if so]_d as mopile home sites. But see Norbeck Village Joint Venture v. Montgomery-County Council, 254 A. "l_d 700 (i~id. ].9 G9) , where re~onic:gchich reduced values f-rwn a range of $3,500 to $8,00 an acre to a range of $2,000 to $3,500 an acre was sustained. The general rule of. these cases is stated in Rathkopf, "The Law of Zoning and Planning" 6-6: "The ordinance, therefore, is not to be held unconstitution~.zl merely because property may not be put to its most profit-- able use. The mere diminution of profits or the increased costs of operating a business caused by the restrictions of the ordinance are not sufficient to render an ordinance void. But where property values are extensively reduced by restrictions and the corresponding gain to the public is slight, the ordinance will be held invalid as confis- catory. Also, if the incursion into private property rights is sufficiently great the ordinance will be held confiscatory irrespective of any corresponding gain to the public. This result occurs when the ordinance restricts property to uses for which it is not reasonably adapted. 'Phe reason for this is that doubtlessly that in such cases the owner's'shar.e in the common :onsideratior. to compensate him for the great loss suffered. ~, necessity for monetary compensation ,f or loss suffered 4 -~, ldemorandum `' Page 16 ^~ ~s arises taken restrictions are placed on property in order to c.rcate a public benefit rather than to prevent a public harm." That the police poerer can be exer_c:iced through zoning only to protect- the public we]_fare, rather than to advance it, is apparently the rationale of many of the leading cases. In Isenba.rt.h v. 13artnett, 206 App. Di.v. 546, 201 N.Y.S. 3£33 (197.3), affirmed 23'/ N.Y. 61?, 143 N.E. 765, the' court stated: "Ther.e can be no doubt that tlii.s action was a yielding to the idea of preserving the vista of this private park by resi:ricting petitioners' property to a use which the development. of t=he rest of_ the street and neighborhood had rendered obsolete. The Court of Appeals i.n People Fxrel Sheldon v. Board of Appeals, 234 N.Y. 484, 138 N.F. 41.6, has lately dealt with the factors which would justify zani.ng a neighborhood as '}3usiness'. These factors have been sacrificed to the purely aesthetic purpose of preserving a vista to private property, which is a matter to be secured so far as it may by private covenant, without the bac}:ing of the police power. In People Exrel Lankton v_. Roberts, Misc. 439, 490, ].53 N.Y.S. ].43, affirmed 1'/l. Apl:~.~Div. 890, i55 N.Y.S. 1133, the Couri: quoted with approval Judge Dilon':s treatise on Piunici.pal L Corporations (5th Ed. Section 695), giving that jurists opinion that. the police report cannot., for aesthetic pur- poses, be used to de.privc the o,aner o property of its full beneficial use, and that, in short, zoning or similar legislation is not to be e>:ercised for purposes other. than the hea.ith, safety,- convience, and public welfare of the people at ]_arge. "It might add to the genera]. attractiveness of the City to preserve its private vista, but, if_ so, such would seem to be a matter to be governed by the eminent domain princip].c, with compensation to the owner, rather than the zoning practice, with loss to him. At conunon lae~, a fine vista was not a property right, either publically or privately, Coke says that an easement of prospect t•ras 'a matter of delight only', and not of necessity, and therefore no action would li_e for its im1~airment 19 Corp. Jur_. 902." 201 N.Y.S. at 386 It is because improving the beauty of an area is not protecting the welfare of the people that it is generally not held to be a permissible exercise of the police pocaer. The courts do not disapprove of municipa]_ities taking action to beautify their areas; it is rather that in such activities they are no longer protecting one property owner from another but are benefiting all in a positive way. Professor Allison Dunham puts it thus: f g Memorandwn Page 17 "S~ut to compel a pal-Licul.:.r otaner to undertake an activity to benefit t.hc public, even if in the form of a restriction, i_s to compel cne person to assume the cost of a benefit conferred on others without hope for recoun- mei7t of the cost. An oomer is compelled to furnish a public benefit- just as much when leis land is taken for the runway of an airport as t•nc~n lie is prevented from building upon his land so that airplanes may approar_h the rumvay. In the former the landot•,ner is paid tai.thout question; in the latter there is an attempt frwn time to ti_rne to compel i.he landowner to furnish the easement of flight 4~i.thout compensation by restricting buiJ.di.ng. The evil of the :i_attcr system is that there is no approxima- tion of equal sharing of cost or of shari_nq accordi.ny to capacity to pay as there is where a public benefit is obtained by subsidy o.r. e}:penditurc of public funds. The accident of ownerslii_p of a particular location determines the persons in the conmm nity beering the cost of i.ncr_easing the general welfare. 7~ f_urther consequence of an attempt to obtain a benefit by means of a rest:rict_ion is that the full cost of the public benefit is thereby concealed fro;n those in our democratic society who are given the po-;~er of deciding whether or not they t•:ant to obtain a benefit." Dunham, "A Legal. and lconomic Basis for City Planni_rg," SII COLUi1. U. 1:EV. 650, 665. The rule, as stated by 1?rofessor Dw~ham, i.s that the state ca.n impose restrictions on land or;ners to keep them from imposing costs on others but must compensate the landoom er in order to obtain a public beriefit. Many of the cases, as this rnerto e:ill demonstrate, take the rule one step further and hold that. the restrictions must be reasonably related to the costs imposed - that the zoning must not be arbitrary. "Thus it has been held unconstitutional to compel an owner, without coinpensat.ion, to leave his land vacant in order to obtain the advantages of open land for_ the public or in order to save the land for future park purchase, but it is ~•,~ithin the consti_tuti.onal poorer to compel an owner to J.eave a portion of his land vacant where building would be harmful to the use and enjoyment of other land (e.g., set-back lines). It is unconstitutional to compel an owner to commit his land to park use in order to meet the public desire for a park, but an owner ntay be compelled to furnish a portion of his land for a park where the need for a part, results primarily from activity on other land of the owner. It i.s unconstitutional to compe]. him to use his land as a parking lot in order to obtain a parking lot for the community but it is within constitutional power to compel an owner to provide P .,• r._i Memorandum Page 18 A ~ ~' a par}:ing ]_ot for the parking needs of activities on his oam land. (Part see I)envex: L'ui_cY., suX~ra) It is improper to compel a railroad to install grade-crossings for highelays in order to promote the convenience of hi_cJhway users, but it is permissible to compel the rail- road to install grade-crossings so as to eliminate danger and hazards from the .railroad's use of its o~:rn property. It i.s not p~rmissib].e to compel an ocmer to hold .Land in reserve for industrial purposes by restri_ct- i.ng his use to industrial purposes only, but it is pcrnu.ssi.b]_e to exclude industrial development from districts where such de'velo~~ment will harm other uses in the district. It is beyond state power to compel an o~•mer without comnensati_on to set aside or give land to t:he public for a street or higho.~ay, but it is within that power to ca~~~pel him to do so where the need for the street:, is related to the traffic generated by the oerner's use of hi.s other land. Likeorise the state may compel an owner to furnish other cornmw~ity facilities such as vaatcr_ and sewer lines at his own expense orhere the need for such facilities results in part at lease from activities on hi_s other ].and." Ibi_d at 666. [, While aupraisals have. not yet been made to determine the exact magnitude of the loss to Spar from the proposed rezoning there can be no`doubt that it tai_11 be ]ar_ge, where some of the land now has a fair market value of over $250,000 per acre, ~xs currently zoned. There can be little doubt that if rezoned Ta-P, it wily. not sell for $500,000 poi two-acre homesite; or even a fr. action of that amount. It is clear from. its very title, as well as from the Planning Office's presentation at the September public hearing, that the purpose of_ thi_s rezoning nronosal is to prevent development by making it economically unfeasible, not_ tto control it in a fashion compatible with neighboring land. This is confiscation. The power to zone is not the poe~er to conf.i.scate, directly or indi- rectly. This the court. said in Te~•?s v. C;oolhiser, 185 N.E. 827 (I1.1. 1933) forthrightly: "Zoning t•;hich acimitted.ly limits property to a use which cannot reasonably be made of it cannot be said to set aside such property to a use but constitutes the taY.i_ng of such property orithout just_cornpensation. Use of property is an element of ownership therein. Regardless of the opinion of zealots that property may properly, by zoning, be utterly destroyed without compensation, such principle ti_nds no support in the genius of our govern- ment nor in the principles of justice as zae Y.now them. Such a doctrine shocks the sense of justice. If it be of public benefit that property remain open and unused, then certainly the public, and not private individuals, should bear the cost of reasonable compensation for such property under the rules of lava governing the condem- nation of private property for public use." Memorand.wn f ~ w J Page '.19 Sec, City and County of_Do_n_ver v._De_nver Bui.cY„ Inc,_, 141 Colo. 121, 47 P.2d 919, 923-?~i (1960) . ~ ~-~--- - --- T_H1; RIs'_ZOPdING IS NOT SUBS'.''.'-.NTiAI,L}' RELA2'rll TO ITS STA`P~TD PUP.FOSES A1~D IS THUS PRL'I~!:AR]' In ac.a~tion t.o being confiscatory, the piopo~c~c -zoning cha;,g~ goes~boyond the limits of the police power on several counia.L•onirg is arbitrary and invalid if it does not effectuai.e the purposes of the zoning rules u;~dcr o:hich it is enacted. Isoard of Cou?7ty Co__nmisso_ners of Jefferson County v. Sin;mon~, sui~ra, ~49~e P.'2d CS, and cases cited. The P~uni_cipal Code of the Cit}> of Aspen and the PitY.in County 7,oning Resolution both provide that the purpose of zoning enacted pursuant to them is, inter alia, to encourage the most appro- priate use of land. (Code Sec. 24-1, Pesolution Subsec. 1.2) Proponents of the zoning change wil]_ be hard pressed to argue convincingly that houses on i.wo--acre plots on the subject property (or any of the other uses permitted) are better- land use than multiple unit de;c~7.linas nn any objective grounds. Determining an appropriate use i.nvol-ves consi_derati-on of private as well as public rights. "Pde said i.n Huff v. Board of Zoning Anneals, ?. 1.4 }^id. 48, L 58, 59, 133 A.2d 83, th~it a coa;prehen:v~ plan should se el: to accomplish, as far as possible, the most appro- priate uses of lend, consistent not on 1.y with the public interest but a1::o faith safeguarding of the interesia of the individual property oeaner." (Board of County Com'r_s. v. Oak Hill Far-ms, Inc., 192 A.?_d 761 C.A. T4d.~ 1963)-) - A. The 7.oning is Inconsistent. [^7ith Surroundi.nq Us__es. The area in cuesti.cn takes its character from the area'surroun- ding it to the north, all of t,~hich is currently develcped with hotels, lodges, and multiple wzit d~eellings. To suggest that land immediately adjacent to it is best sui-fed for farming or ranching uses, or the rural r.esidentia7. use allowed in the A-F zone is obviously wrong. Tourist traffic, summer and winter taould interfere with these uses, and the timber stands are insufficient for lumber operations. Indeed, such uses within city limits seem highly incongruous.' In addition, if the County failed to adopt such zoning and the City adopted it, the result would be a small pasture surrounded by condominiums, in short, spot zoning. "Svhere property is so zoned at variance with existing conditions. in the surrounding area that the objects of the enabling act are not and cannot be advanced by such restrictions, the imposition of such restrictions is" arbitrary oaith respect to the particular property involved." (Ruthkopf, The Lat•a of Zoning and Planning, Vol. 1, p. 5-1, citing Gordon v._City of P~he;at-on, 1? Ill. 2d. 284, 146 Memorandum Page 20 [+lhile no ttao cases involving zoning to a use inconsistent with exist.i.ng uses in the area are ic]cnLical, some i_11ustrati.ons of the rttle Drill dentonstrat~a that a radical. shift from high-density tourist lodging to a pastoral use is arbitrary and void. It. should be noted that the prroposed rezon_uig could cree,te several non-r.onfonning uses ~- Shadot:~b7ountain Condominiums, the upper unit of the Aspen Alas, and the city trat.ci: tank, all of tahich at>pcar to be at least partially above the 8040 line. Pezoning which creates substantial non-con;:orrni.ng uses is always suspect as void. See Fogc_rt v, C?ashington Tarp ._, 25 N.J. 57; and Colvin v. Vi]._lage of_6?col:i_e, 20'3 N.F.?d 457 (1TL. Ct. App. 1964) . These cases hold:i.ng zon_nq arbitrary where uses in the area are inconsis- tent faith the perr;~itted uses wider the. rezoning e.re really a gradation of the confiscation cases because the court is con- c].udir:g t}rat the permitted uses are not reasonable i_n view of surrounding uses. In Paton v. Staeeney, 257 N.Y. 176, 177 N.r. 412 (1931), property zoned for residences anti hotels t-aas surrounded by com,~ercial uses, and the zoning teas declared inval.i.d. In Is_enbarth v. Ba.r.t- nett, 206 App. Di.v. 546, 201. N.Y.S. 383, (19?.3), affirmed 237 N.Y.- 61'1, ].43 Id.E. 765, the property in question o:as near a private par. k,, and teas zoned residential for. four blocks along a busy street erher°e all recent improvements had been conuner.cial. Similarly, in Dotasey v. Village of 3:ensington, 257, N,Y. 2.21, 177 N.P. 427, 8G AT 1 6y12 (1~3].), all of a v:i.llage teas zoned resi.cientia]., i.ncludinq~land along a border of the village on a busy street tahere all neighboring property was zoned for commercial and apartment uses. The court. held the ordinance invalid. In Tarrant v. Incorporated Village of Roslyn, 187 N.Y.S.2.d 133, 19 Misc. 2d 238, af,':_i.rincd, 10 App. Div. 2d 37, 197 N.Y.5.2d 31.7, affirmed 8 N. Y. 2d 782, 168 N.E.2d 139, 201 id. Y.S. 2d, the court invalidated single-fanny zoning for property surrounded on three sides by apartments, and the topography was uirsuitable for residences. In Stevens v_ Tot•~n of IIuntingt~n, 2.0 N. Y. 2d 352, 2.83 N. Y.S. 2d 16, property on a busy street- tras zoned residential to protect the char.actei- of a side street- on t•;hich the property also abutted and the zoning was invalidated. Other cases holding zoning arbitrary and void because of nearby land uses i_nclude.; Hedgcock v. People ex rel. Arden Realty and Investment Co., 98 --- Colo. 522, 57 P.2d 891 (1936) - property on block used most y for commercial uses was zoned residential. Grand Trunk [+7ester.n R. Co. v. City of Detroit, 40 N.W.2d 195 (Mich. 1949)-- property along railroad right of way in a blighted area zoned residential. i Memorandum Page 7.1 f 0A ~ .li{ Schiffer v. Vi.7lage of i4i-].mote, 24`5 h.l].2d 143 (Ill. 1969) -- pr'opcrty coned re:;ideiit:i.alianer~ a.ll. of=her uses on busy street were commercial, except for one reside;ice. Dust. v. Wi_:Ll~elrn, 25 Ohio I9isc. 111, 2.6G IvT.B.2_d 280 (].970) - residential, zoning allo~•red only one mobile home per lot, where there wet:e several trailer courts within a few bloc}a, including an e>:i-sting ono (a non--conformity use) on the rear of the lot in questions. In the prescnL case, Aspen Mountain serves over 2,500 skiers per day on pea}; days, all of whom are transported to the i>ase of the mountain. In addition, a transport-anon proposes]. calls for uti].izati.on of the o].d railroad right of way along the base of t)~e mountain for a narrow gauage railroad as part of a mass transpor_ta- ti_on system, which tri].]. create more traffic at the base of tl;e mountain. These facts, i.n addition to the laryc nwnber of condo- miniums bordering on the land to be rezoned, cast grave doubts on the va]_.di_ty of the zoning. ,B. The 7oninq Fa.1s to Achieve Pcrmi_ssible Purposes An examination of the stated purposes of the rezoning trill demonstrate that the rezoning accomplishes none of them. L Population };eduction. whether_ o,overnment can outaaca population, rat_lier than serve it, as an exercise of the police potrer, is a debatable concept. Nevertheless, assuming population reduction is a pennissi.b].e goal, this r_ezoni_ng is hardly the appropriate way i:o accomplish it. Both in the city and the county there are tremendous amounts of undeveloped land in a variety of zoning classifications.. Fezoning the land in question cannot stop groc•rth, or even slow it sir.nificantly. Kezoning the entire city and county, or. reducing a1]owable densities in all zoning classes, might accomplish these purposes, but rezoning one parcel tai.ll not. Reduce Street Congestion. Cormnents about population reduction also apply here. In fact, if there is to be any development in Pitkin County or Aspen, the least street congestion will be caused by development at the base of. Aspen Mountain, cahere cars are least required by visitors. In winter season peaks, the primary activity centers are the ski slopes and the shops and restaurants in downtown Aspen. In the case of Aspen Mountain, they are only a feor blocks apart, and walking between them is easier than attempting to park in downtown Aspen. Improvement. of safety from L•'ire and Natural Hazards. While this is a laudable goal, no showing has been made that this rezoning will accomplish. it. There is no evidence that water pressure stops at the 8040' elevation. In fact, Chief Clapper has told another landowner with plans for development above 8040' that water pressure is adequate for fire protection. Aspen has a water tank above 8150' elevation. Furthermore, there are large ~ _• 2demorandum Page 77 ground erxtcr resources avai.lab].e under Aspen ?vlountai.n, as ev:i.de.r?ced by the flooding of soma, of the :ni_nc tunnc].s in the past. I4i~h respect to na.tura]. hazards, U.S.G.S. maps show areas o.f: avalanche hazard, steep slopes, a variety of rock and soil co,iditicns en Aspen Fountain. The same showings could be made on amj mountain i_n Ptkin County, including_ some currently under development. The avalanche danger is at least. s]_:ightly exaggerated, since it is shotnr on large parts of Aspen fountain which are uses] by the pub].i.c for sl:i_.i.ng. D?ost importantly, the proposed rezoning does nol-hing to solve any problems that may exist: from natural hazard;. Here the zon.inc; is on tl.e horns of a dilcruna; if it prevents all. deve]_o}ment above 8040' it is confiscatory; if it does not, there i.s nothi_ng to prevent: heroes from being built on the most dangerous parts of two-acre sites. Other methods are obvi.ous.ly more appropriate to protect from natural hazards, Stich as defining standards fo?' mountain building, including permissible. soils, slopes, and special reviet•; f:or ava]anche conditions. Faci]_itate Ader,,uate Proc=ision for. Transportation, i9ater, Setaage, Drainage, Open Space and Public Buildings. General coi:unents about population reduction also apply here. So do continents about street congestion. P:o evidenc:e has been presented to show hors this rezoning trill solve the general gro~sth-related problems of transportation, water and sewage. `t'he reference t=o public L buildings is incomprehensible. No evidence has bec>.n presented that the rezoning will have a significant effect on drainage probl.cros. As mentioned before, the rezoning will not. legally prevent. all development if it does so as a practical matter it is void as confiscatory.. But if develountent: is possible, it Drill. be in ttao-acre homesites which o:ill require many miles of roads and utility cuts, which will aggravate drainage problems far mere than well.-planned development concentrated at the base of the mountain, or on other appropriate sites on Castle Creek. PIe11- planned development, with proper grading and planting, can actually improve drainage situe.tions. Again, drainage is a county-wide problem, to he so ].ved by standards which apply uniformly throughout the city and county. Provision of Open Space. .This is the real reason for the rezoning. If the zoning accomplishes this, it is confiscatory and void. If it does not, it is arbitrary. For example, if building upon two- acr.e home sites is possible, development may be scattered over the mountain, rather than limited to concentrated development on the most desirable sites. Avoidi-ng Undue Concentration of Population. Withouting reducing the densities allowable in the Tourist and A-R zones throughout the City and County, it is obvious that this rezoning merely shifts and co,rcentrates population density, rather than reducing it. What is meant by destruction of physical environment in _ this context is not the least bit clear. If it. means that build- ing destroys open space, that much is obvious, but it is difficult to stop such destruction short of stopping all building - am impermissible goal. w. 1`iel:iOr<lndum Pane ?_3 Prevent the Overcrowding of Land and General V,e]_fare of t.lae Co-n- muni.ty. That this rezoning only prevents crowding of some lard, and do~~~: not solve the "problem" with respect to many other parcels zoned for. high density use must by noon bo obvious. Further, by reducincr.densities caithi_n and at the border of Aspen, a land scarcity is created vahich may d.r.ive deve]_opmer,t to tyro-acre sites scattered all over the county, c.rcati.ng one ;nassi.ve subdivision, tahi.ch would ]eavc no natural open space. Thus the ultimate of feet of tli is rezon.i_ng may be the opposite of ~•;ha t is desired. Error in Ear].cr Planning. Tlicre was no error. It makes plan- ni_nq sense to place tourist housing near the activity centers, reducing traffic and transportation problems, and the reliance on automobiles. Furtliermo.r.c, this zoning has been in effect for over ]7 years. The 1966 Laster Plan designated this area a.s "Public a~;d :[nstitutional", and included among the permitted uses "pub].i.c and private schools, ckitu-ches anal related residential uses, lodges, cJ_ubs, etc." (emphasis added.) "Aspen Area General Plan, Final P.eport ].9G6", p. G. Thus property ozancrs and purchasers have had a reasonable right: to rely on the zoning, and govern-- - menta]_ officials ar.e estopned from changing their. rninds, absent a change of c:ircu:nstances on the property. In fact, development has proceeded as exnccted, intensifying as it proceeds to~;rard L the mou~;tain. Prevention of Air and [cater Pollution e.nd Soil ]?rosion. To suggest that. development of this area ~•rould cause air pollution is ridiculous. The primary causes of air pollution i_n Aspen are wood-burning fireplaces and the automobile.- It is a simp]_e matter to outlaw wood-burning fireplaces. As pointed out previous- ly, deve]_ohment of Aspen Diow~tain would cause less increase in automobile traffic than any area in the County or City. Finally, the zoning assumes that alteration of Aspen Mountain would adversely affect erosion and water: quality. It should be pointed out that Aspen Mountain is constantly being cut faith new roads by four- wheel drive vehicles tahich ar.e free to drive anywhere they eaant, and that the 1.lountain is a mass of scars and tailings from mining days. Proper development can provide terracing and other devices to precept erosion, and new planting to >*nprove ground cover. Proper safeguards against unreasonable scarring can he imposed as part of the building code, if the Planning Office wished to protect the, watershed throughout the valley. As long as no safeguards exist elsecahere in the area, it is absurd to think that singling out this one area will have a material affect on either wafer_ or air pollution. Maintaining Natural Scenic Beauty. If Pitkin County and Aspen want a park, Spar is willing to sell. But zoning cannot be used for this purpose. Furthermore, as long as S:nuggl.er and Red Mountains are being developed, this zoning will not achieve the goal of maintaining a natural valley surrounding Aspen. Protecting the Profile of the Silver_ Queen. This is in the same category as maintaining natural scenic beauty - a park use. ~. .,.,. Me;norandwn Page 24 .. Complementing and Proi~:aing Aspen's Purchased Open Space, for: Cv'hich ro Alternative i:::ists. This means Aspen has run, out of green space acquisition, funds, and now wishes to acguir.c more space by zoning. Restraining Gr_oe?th Not to hxceed the Capacity of the Transporta- tion System t?hick :is Planned. This relates to population reduci~ien previously discussed. Furthe7-, tourists housed i.n this area orould create the least demand for public tra];snortation, being within taalki.ng distance of major activity centers. Controlling Demand for. Future Public I'aci_).ities-and the Y.urden of_ Future 't'axes. This relates again to popu]_ai.i.on reduction, previously co7runented on. The i.mpai..rment. of property values is accompanied. by benefits to the public and protection afforded to others. This is a self-serving legal conclusion not borne out by the foregoing analysis. In short, all of the proper zoning goals have been recited, but no attempt has been made to relate thorn to specific problems arising iro7n the land soughi- to be rezoned. The real reason for the proposal i.s found in its title - a green line, or. open space, and a].1 the rest is merely wi.ndo;-r dressing i.n an attempt to add some legal justification to the proposal. Idumer.ous cases; mostly in eastern si_ates facing population growth pressures, have dealt with attempts of ar.cas to shut off gro~,ath i_n an attempt, to preserve a rural atmosphere, the "character" of a community, to avoid increasing public faci].i_ties, or, in some cases, to zone out economic groups thought "undesirable". The latter 15 Often dG'SCrlbed as °Srlob" Or °eXClllSlOllary" 'LOIling, and is the subject of a substantial literature. A recent such case is peal of (;irsh, 437 Pa. 237, 263 A. 2d 395 (1970), which cila)_lenged a township zzoning ordinance which made no previsions for apartment use, though the town had a population of 13,000. In invalidating the ordinance, the Pennsylvania Supreme Court stated: "In refusing to allow apartment development as part of its zoning scheme, appellee has in effect decided to zone out the people who orould be able to live in the township if apartments were available." 263 A. 2d at 397. A similar New York case grappled with the same problem, where L-he community justified a prohil~i.tion of all new construction of multiple family dwellings c the basis of an inadequate sewage plant which was allegedly 1. _luting the Hudson River. The court noted that this was a probl~_;a which could not be shifted to property oorners orho had not yet developed their property, noting a heavy di.minut:ion in value, saying: c Niemor. andum Page 75 "A municipality has, of course, t1_ie po;.er to take appropriate steps to dea7.~?i_th sanit.a.ti_on problems, including those create~d_ by inadequate biological treatment of sewage. The instant sani.tati.on problem is, ho~•?ever, genertil to the coy mttznity and not caus;cd by the nature of the plai_ntiSf's land (citati_on omitted). It is, therefore, impermissible to single put this plaintiff to hear_a heavy financi.a]_ bw-den because of a genera]. ccrrlition in the co:ranuni.ty (citation omi.tted)." ?.44 N.E.2d ai. 70?. A rezoning of 1'airfax County, Virginia, a part of the P7ashi.nc;ton, D. C., metropolitan area, bears a strong resemblance to the proposed zoning not: only because of. the attempt t:o dea_l with all of the problems related to growth, but also because the rezoning concentrated on a part: of the county, rather than a]l of it. Board of County Supcr_vi_so.r.s of Fairfax County v. Carper, 200 Va. 53, 107 S.E."Ld 390 (1959). I~'airfax County doubled its population between 1950 and 1957, and was the fastest: growing county in the L}ni.ted States. The eastern one-third of the county contained 90o of the population, tahi_le the western tcso-thirds consisted of a f.ee: established toe?ns and wooded and agricultural ]..and, land divided into three acre tracts and over, and land sub-divided into one-half acre lots. Tl~e population gror;th created problems of obtaining adequate sewer., we.t.er, fire protection and schools. Wlu.lc the eastern one-third of th:~ county o?as served caith publ.i_c water and a county sewer system, this was not true i.n the ~•?estern ttao-thirds. Under the rezoning, the eastern one-third of the county was zoned for lots running from one-fifth of an acre to one acre. The e?ester.n t~•:o-thirds of the county was zoned for agriculture, with develop;nent on minimum lots of t.o:o acres, and around the settled com;nuni.ties the. minimum l.ot size was one acre in the western porti_cn of the county. In invalidating the zoning, the Virginia Supreme Court first noted the justification for it: "Evidence was stated on behalf of the appellant to shoe. that the purpose and effect of the amendment Caere to prevent an exhaustion of ground water supplies by subdivision of less than tcao-acre lots in the western two-thirds of the county; that it. abolished the threat. to public health b~ prohibi.ting the develop- ment of subdivisions of less than two-acre lots, using septic fields or private sewer systems; that it continued in effect existing and predicted land uses in both the eastern nne-third and western two-thirds of the county; that property values in the caesi:ern two-thirds had increased to some extent since its adoption; that it bolstered the precarious economic condition of the county and reduced the waste of physical and economic resources; that schools could be built in the eastern portion at much less cost than in the western area; that it would not prevent use of the land for agriculture; that it had achieved r4emorandur;x Page 26 .~~ . ~, ~•s a reasonable plan of orderly coramtxn_i.ty development.; that in sorie areas the t~-ro-acre requ .rerncnt for lots a:as necessary to protect the character of the neighborhood; and that it had prevented extensive commercial develop.r~ent in the o:este*:n tvro-thirds of the county and charm Bled it bacY into the eastern portion, Lahore water and sewaq~ iaere available, a17. in the interest of the genera].~,~elfarc." 107 S.L. 2d at 394. Having noi:cd the pr:oblenis, the court then noted that i,here were other solutions for many of them, as they are here: "'t'he evidence offered on behalf of the appellees shoc,~s that suffi.ci.ent ground ~aatcr supplies ar_e available in the ~•:estern area for lots of less than two acres; that public servi.cc companies could supply grater if the demand justif:ie:; it; .that proper se~acr facilit.i.es could be provided by the use of septic tan}cs or small sewage disposal systems without endangering the health of the inhabitants; that the health and :safety of the county Caere and are protected by the sanitation ordinance, the subdivision ordinance, the subdivision c wltrol. ordinance, and set-back requirements of the 1941 loninq Ordinance as amended; that there ~- was a demand for houses to he built on land of less than two acres in the western area; that the effect of the 'Yreehill i~rner,drurrt' has been to prevent use of the land for subdivision develppment in the western area...." 307 S.E. 2d at 394. In holding the ordinance invalid, the court stated: "The practical effect of the amendment i.s to prevent people in the low income bracket from living in the western area and forcing them into the eastern area, thereby reserving the western area for those who could afford to build houses on two acres or more. This would serve private rather than public interest. Such an intentional and excl.usionar_y purpose would bear no relation to the health, safety, morals, prosperity and general welfare." The court held that zoning could not be used to set up a barrier against respectable citizens wishing to build homes for the purpose of. protecting large estates. Perhaps the same comment could be made of zoning in Aspen which, ,in an area of high land costs, zones out multiple family dwellings.' In Aronson v. Town of Sharon, 195 N.F. 2d 341 (].964) a Poston suburb attempted to ease its growth pangs by zoning one district for minimum lot sizes of 1000,000 square feet. The court, in holding the zoning invalid, stated: i ..,. Memorandum Pace 27 ~1 ~/ "'Phe respond<;nt argues: 'The physical characteristics of the district, considered :u~i conj unction with those of the 'totem, a town of residences, large camps, a retreat house, fish and. game clubs, a wildlife sanctuary, anda large recreation and conserva tion area, indicate that all that has r.:ade Sharon beaut. i_ful~~*'''~-gill best be maintained bV the lot size recuire;n ~.-.~ of its zoning by--].ar?. The zen .ng i.n question ~;ot~ encourage leaving ].and in the natural state, ~-ihich ~~~ '' provide the inhabitania, and those who come to Sharon, o~iL1, community which has the li_vi.ng and recreational arneni'. that are fundar;iental to mental and physical health.' resembled the fi.ndinq as to the second basis of plan, namely, 'to initiate a positi_vc program, o' ci acquisition for the foam itself:' and the fine]: hat the separation of the rural resident area helped : . create an opportunity to cause lane] in it to be }:ept. and used for conservation purposes. Sae cannot resist the con clusion that, ho:~rever t-±ortl~y the objectives, the by-law a tte;nnts to achieve a result which properly should be t he subject of eminent dwnain. "In Simon v. Heedhan, 37.1 1/ass. 560, 563, 47_ N. E. 7_d 516, [, quoted supra, are enu^,xerate<i ccrtai.n possible advantages of li.vi.ng upon an acre lot as conu>ared tai.th one of ten thousand square feet. 47hile ini_i:ially an increase ir, ].ot si_ze m:ignt have the effects'there noted, the ].ate of dimini.shi_ng_returns will set in at some point. As applied to the petitioners' property, the attainment of such advantages does not r.easonabl.y require lots of one hundred thousand sq_uar.e feet. Nor t~~ou]_d they be attained by keeping the nrra]. district undeveloped, even though this might contribute to i:he welfare: of each inhabitant. Granting value on recreational areas to the community as a whole, the burden of providing them should not be borne by the indi_vidua.l property oorner carless he is compensated." 195 N.L. 2d at 345. National Land and Investment Compr.ny v._F:ohn, 419 Pa. 504, 215 A. 2d 5°7 (165), involved an~atte.^:tpt by a Philadelphia suburb to restrict groo:th by zoning the township into one, two and four acre home sites. Because the case, which invalidat- ed the zoning with respect to a parcel in the 4-acre zone, involved so many of the issues present in the greenline proposal- roads, traffic, open space, preservation of historic sites, and ureservation of rural character, the opinion will be quoted at length. In dealing with ,the problem of po]_].ution as a justification, the court noted the statutory power of townships to establish sanitary regulations, and that percolation tests could determine if lots were .large enough to handle sewage, e F`.,~ i ti "`/ a idemorandum Page 2S and held that a blanket four acre rep or necessary solution to pollutioi:. some of its roads were already being that the present net.i•~orh ~::ould be at t•7ould make pl:ovi_d.i_ng fi.i-e nroteccion rnl.ai:ion was not a reason?.blc ' }1L' tot~rnsh ip noLcci that used at peak capacity, and ful]_ capacity by 1.972, tahich d~i_f.ficul.t: "It can be soon, t.lzcrcfore, that the restrict:.ion to four acre lots, so far as traffic is concerned, is based upon possible ftiture cor:d.itions. 7,oni.ng is a too]. in the hands of govern-nc-~n:al bodies tahich enables thorn to more cf~:ect.ively meet the ~:emands of evolvi.nq and gro~•ri.ng communities. It mint not and cannot be used by those officials as an insi:rwaent by which they may shirk their responsibilities. Zoning is a means by which a yovcrlimental body can plan for the future - it may nit be used as a means to deny the future. The evidence on record indicates that for the present and the immediate future the road system of East 'i'otan Toy^rnshi.p is adequate to handle the traffic load. It is also quite convincing that the roads drill become increasingly inadequate as time goes by and. that improvements and acidi_ti_ons tai_11 eventual.l.y have .to }:~e made. Zoning provisions may not be used, however, to avoid the increased responsibilities and economic burden which tulle and natural growth i_nvarihly ~ bring." 21`i F.. 2d at G09-G1.0. 'The. court then dealt with 41?e justification that the zoning wt?s I?CC CS Saty t0 pYE'.SP_rV L' t11 C: °Cha1"aC tCir° Of t}1E area, FI}11 Ch 47aS an area of great beauty containing old homes sur_r.ounded by beautiful pasture, farms and woodlalid: "Involved in preservil;g East: Totan's 'character' are four aspects of concern tahich the township gives for desiring four acre mi.r,mum zoning, Firs C, they cite the preserva- tion of open space and the creation of a 'green belt' tahich, as moss: present day coln;nentatorsi,~ cress upon us, are taorthy goals. [4hile in full. agreement with these goals, we are convinced that four acre minimum zoning does not achieve the creation of a green belt in its technical sense, and, i:o the limited extent that open space is so preserved, such zoning as is here involved is not a pcrmi.ssibie means to that end. By suggesting that the creation of a green belt is a purpose behind this zoning, appellants betray their arguments that there is a ready market for four acre plots. Only if there is no market for four acre lots will the land continue to be open and undeveloped and a green belt created, This, however would amount to confiscation of the pr_oparty of East Town landocaners for which they must be compensated. If the preservation of open spaces is the township objective, there are means by which this can be acc.ornplished which include authorization for "cluster zoning' or coi?demnati.on of development rights with .. r L.r+ PQernoraI]Clllln P~cle_ 7.9 compcnsatio,I paid for tl:<!t minimwn acreage requirement by which the stated end can at. 6I0-611. rat r~ which is taken. A four acre is not a reasonable method be ach:i_evecz. " 215 A.ld The court then went on to reject. the argument that.thi.s zoning was needed to prescxvc hi.stor_c sites in their prop^r_ setting. It noted that the sites .n question erere s]?.?`rounded by land to protect i.hem, and conclu.dc,d: "In any event, beauti.ficati.on of several structures of rni.nor historical si_gnifi.cance either calls for no.r Iegit- imati.zes the imposition of lot~~I density zoning of the magnitude here contemplated upon 30°~ of the townshi.p." 7.15 A.2.d at 6]. 1.. Ceri:ain].y that characterization su:i_ts the "Silve profile, orhich cannot even be seer] from the City is virtually un}cno~an to visitors. It might also that during t:~Ie silve].- boons a whole torm existed in Tow-telotte Park. r Queen" of Aspen and be remembered oi] tl]e mountain., The courts opinion then went on to treat the issue of preserving the. "setting" of handsome old homes in the area: ~- "Closely related to i:he goal of protecting historic monuments is the expressed desire to protect the 'setting' for a nur.Ii]er of: o]_d homes in East 7bt:~n, some dati_ncr back to the early days of our_ common taealth. Appellants denominate this goal. as falling, within the ambit of promoting the 'general tvelfa.re.' Llnfor_tunately, the concept of the general welfare defies meaningful capsuled description and constitutes an exceedingly difficult standard aga.i.nst which to test the validity of legislation. Ilor~ever, it must always be ascertained. that the otitset t:hether., in fact, it i_s the xxil~lic welfare t~~hi.ch is being benefited or whether; d~_sgui.sed as legislation f.or the public welfare, a zoning ordinance actually serves purely private interests. "There is no doubt that many of the ]:csi.dents of this area are highly desirous o.`. Y,eeping it the wa_y it is, preferring quite naturally,. to look oui upon land in its natur_a1 state, rather than on other homes. These desires, however, do not rise to the level of public welfare. This is purely a matter of private desire which zoning regulations may not be employed to effectuate:" 215 A. 2d at 611. The court went oI] to note that if home oc,~ners desired to protect their settings, that they were free to acquire such land as was n -.:essary for that purpose. ` ~ f W !~ Memorandum Pac}e 30 'The fo w-th argwnent adt>aneed by eppcllants, and one closely anal~~,r.ou; to ti;e preceding one, is that the rura]_ chax.-actor of the area must be preserved. if the totansl~xip e~~erc developed on the basis of. this zoning, ho,~evei:, i.t could net be seriously contended that the ].and.taould retain its rural character - it t~~ould siml?ly he dotted erith larger. homes on larger lots." 216 A. 2d at 611-G12. "The toe:nship's brief raises (Liu% unfortunately, does not attempt to anse:er) the interesting i.ssuc of the toamship's responsibiliti~ to those t•rho do not yet live i.n the totanship, but who ar.e part, or may become part, of the population expansion of the suburbs. four acre zoning repr_eaents bast '1'ov?n's position that it does not desire to acco.nodate those who are pressing for admittance to tl.e to~;rnship un]_ess such admittance will not create any addi.ti.onal l,urdens upon governmental functions and .,ervi.ces. 'Phe que;sti.on nosed is whc.the;- the tocanslu.p can stand in the way of the natural forces which send our growing population into hi.ther.to wulevel.oned areas in search of a comfortable place to live. ive Ixave concluded. not. A zoning ordinance whose pri-mary purpose is to prevent the L entrance of new corners i.n order to avoid future burdens, econorni.c and otherw.i.se, upon the adr*mini.stration of public services and f.aailities, cannot be held valid." 215 A. 2.d at 612. Several other Pennsylvania cases dea.l.taith problems of_ land uses tahich place pressures on coruuunity facilities. In re O'Hara's Ar_nea1, 389 Pa. 35, 131. A. 2d 587 (1957) teas an appeal from a denial of an anulication by the Archbishop of the Diocese of Pliiladelphi.a`_or a "special. exception" to build a high school within a.n "A?t" resi.denti_al district. This distract provided for eclucational uses only with the consent of the Board of Adjustment. That consent taas denied and the lower court sustained the Board's decision. The evidence shotacd that the neighborhood in question was one of fine suburban homes, with rel.at.ively narrota streets not equi.pued to handle heavy traffic, and that building a school there would hate a slight effect. on property values, and would burden the community with. increased costs of improving streets etc. In dealing with the problem of increased costs for the community the court stated: "The court found that the proposed use would increase traffic, which under the circumstances, would create dangers and hazards a.nd would be adverse to public safety. Any traffic-increase with its attendant noises, dirt, danger and. hazards is unpleasant, yet, such increase is one of the 'inevitable accompaniments of suburban progress fiemorandu;u Pace 31 r~ `> and of our constantly expanding popul stalyding alone, does not. cons4=i.tnte. a reasoli to rei'use a property ot:ncvr i.he of h.i.s land: (ctaii.on onlit.ted). It ant:icipatcd inc_~-ease in traffic tihich refusal of a 'special exception' in a noon' trhich, suf.ficieni legitimate use is not any tai.11 jusi:f:y the 'LOlling Ca.;e. . such The ar.ticipaten z.ncrea.sc i.n traffic must be o.f- a character that ii: bears a substani:ia7. relation to the health and safety of the colmalxni_ty. A prediction of the effect o.f: such an increase in traffic must: indicate tl~,at not only is there a likelihood but a high degree of probability that it tv.il7. e,fic.ct the safety and hoali.h of the co,~~nuniiy, and such prediction must 1>~~ based on evidence suffi_ci_ent for the purpose. Until such strong degree of probability is evidenced by legally sufficient testimony no court should aca i.n such a way as to dcpr.ivc a lando~•mer of the othertaise legi.ti.mate use of hi-s land. An eram.ination of the instant record fails to reveal evidence suf:fici.ent to justify e. finding that the anticipated increase i.n t:raf,`_ic bears any substantial relation to the health and safety of this community or. the requisite high degree of probabi_].i_ty that such an increase w.i-11 affect, adversely the health and safety of the community. 7'he record mere7_y L i.ndi_cates an anticipated mi.ni.mal increase of iraff.ic. "7'hc (].ot,:cr) court fur.thc-'r found that the contemplated _ use toill 'change the quiet residential. character of the neighborhood and tai.l]_ have a s].icrht damaging effect on ' real estate values and-the e~itre neighborhood' (emphasis ours). Pdhat t~~e said in A4edinger's Abnea]_, sur~ra, 377 Pa. at p. 2C>G, 104 A. 2d at u. 172, is particularly opposite: 'we therefore hold that: neither. aesthetic reasons or conservation of proper.i.y values or the stabilization of economic values on a tot~lnship are, singly or combined, sufficient to promote the health or the morals or the- safet_y or the general t:~el..f.are of the totanship or its inhabitants or property ot,-Hers, taithi.n the meaning of the enabling Act of 1931, as amended, or under the Con- stitution of Pennsylvania'. 131 A. 2d at 596-597. The court then dealt,with the cost of commwli.ty facilities: "The court finds also that the expense which would be occasioned to the townshi-p by reason of the consequent widening of streets, placement of si_det,=al.ks and street: whiting, is a factor to be consi_d.ered. iahat relationship this factor bears to the standards set forth for granting or refusing a special exception - the health, morals and safety of the community - is beyond comprehension. Anv use of this site would affect consequentially i:he tot:enship in that i.t would require the widening of streets, etc. As a matter of fact, appellant has offered of record to i Memorandum Page 32. <~ a.+' assume part of any attendant. e>:pense by or:Ldening at least a portion of Royal. Avenue at its own cxuonse, plrovidinq for off-highway parking and placingsi.dewal};s along the main a.rt.cr:v of traffic. `ibis reason bears no relationsl;i;; to the on]_y standards which must gu.i_de the Boa.r_d of t]ie court in their cxer_c:Lse of discretion." ].31 A.2d at 597. `i'hc court them summarized the justifications for denial of the application: "An analysis of the reasons advanced by t_he (lower) court for. denying this application indi-cafes tlrrt the court erred in re{usinq to al.lo~o the proposed use. Three reasons assigned by the court - the cost to the township, tl~rc availability of anotller_ site, the i.nac]equacy of the prose nt sate - bear no relationship to the only standar_c]s c;hich must guide t.ne court in the exercise of its discretion and therefore the court clearly exceeded i.ts powers and abused its discretion. in this respect. The fourth reason - the effect on the character of the neighborhood - has already been ruled by this court insufficient: I=Sedinuer'~ Tppcal_, su*;~ra. The fifth reason - the anticipated incr.case in traffic -- fai.].s by reason of the fact t11at the evidence. is insufficient to show a hiah degree of probabi]_ity at the anticipated increase int.raffic will adversely affect ti7e health or safety of the commwiity." L 131 A.2d at 598. "The language of Mr. Justice Bell in D"edi.nc~er's A~neal_, suura., 377 Pa. at p. 2?_5, 104 A.2d at p. 122, is particular- ly a~plicab].e: 'the natura]_ ox zealous desire of many zoning hoards to protect, i.raprovc and develop their conmxunit.y, to plan a city or a toranship or a community that is both practical and beautiful, and to conserve the property values as t•:e].1 as the 'tone' of that community is comrnendable. But they most remember that property owners have ccrt_ain rights t~~hi.ch are ordained, protected and preserved in our. Constitution in ~,-hich neither zeal nor worthwhile objectives can impinge upon or abolish'." 131 A.2d at 598-99. The court held that tine application to build a school should have been granted. And in Appeal of P4anns, 3 Pa. Commom•~ealth 242., 281 A.2d 355 (1971.), a Pennsylvania Court had to deal with an application for a stone quarry in a rural. residential area. Again the court. kept the permissible goals of zoning and the police power in mind, and subjected the rejection of the quarry application to tests of reasonableness, finding the denia]. of a special exception arbitrary, since the legitimate concerns. of the community could be met through other means, as they can in the present situation. i D7emorandum ~""~ Payc 33 ~~ ~. ":Cn denying the application for special excentiort the Zoning L'earing P,oa.rd found that. the proposed use trou]_d be det.ri~r:entaJ_ tc the pnhlic interest for five generaJ_ reason T}iese reasons Caere, (].) the effect of the quarry o?i land value and on the future development: of the township; (2) the effect of the cuarry on the need for future public -`services; (3) ti.e effect of the quar_y with regard to water, air and noise z;olJ.ut:i~,n; (4) the effect o.[ the quarry on the taater tab:Le as that affects both wells and septic systems; and (5) the effect of the quarry operation t•?ith relation to the present traffic pattern in the area. Although there is support in the record for these findings tae are of the opinion that t.a.ken eitJier collectively or individually they are insufficient i.n law to sustain the denial of t:hi.s application f.or a special except ion." 21 P,. 2d at 359--3G0. "'Phe Poard found that the quarry in existence wou]_d tend to depress resir',ential land value within the inu~tedi.ate area, finding of fact no. 37, and that: the introduction of the quarry, in find.incJ no. 43, would retard future residential deve].op;ne~it within that surroundi.nq area where the quarry orou].d be L seen, smelled, heard, felt or where dust taould scta].e. Lit.tlc elabor.ati.on i:: necessary upon the basic pr.emi.se that a change in the character of the residential area or a slights damaging effect on real estrite values cannot justify a denial of a sueci_al exception (citation omitted) neither aesthetic reaso~;s, nor. the conservat.i_on of property values or. the stabi.].i_zation of economic values in a township are, singly or combined, suffi.cicnt to promote the health, morals or safety o{ the community (ci.tations omitted)." 781 A. 2d at 360. The court noted that the Board also found that t:he proposed use taould be economically dise.dvantageous to the township, since it taould require more services than it would produce i.n revenue. The court noted that there was little evidence in the record ato support this and said: "Be that as it may, hotaever, and even accepting this finding ere do not believe that this con- sideration is a justification for a denial to its property owner of the lataful use of his land. It is now clear that zoning me._y not be used to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring. (cita.tions omitted). Admittedly, the use of this land for the proposed purpose will !'». ~,, .,~ ~' Memorandwn page 34 require increased police protection, will impose a somet~rhat heavier burden on the road netcaork, and tail.]. require an increase i.n all. of the municipa]. services over e>hat i.s r,o~a necessary for the supr~o~-t. of what is primarily vacant and unused ground. llovrevcr, any use~o.f: this ground would impose some increased btu:den upon the municipality but to deny the lav;ful. use of the land on this basis would k~e a palpable invasion o,`: the rights of the p;:one~-ty holder and a cloarl~~ arbitrary use of discretion. The power to regula.t.e tlie: use of property does not. e}wend to an.arbitra.ry, unnecessa~:y or unreasonable intenneddling with private ow nersl,ip of property even t=hough such act. may be labeled f_or the preservation of health, safety ar,d general welfare. The e>:erci.se must have some substantial relation to the public good taithin the spheres held nrope.r.. It. must not be from an arbitrary desire to resist the natu~.-al operation of economic laws or fo.r. pure]_y aesthetic considerations (citati.on omitted) . " 7.£37. A. 2d at 360-361. The Board also found that the quarry oner_ation wou]d pollute a stream in the area. There a;as some evidence that. occasionally some of the machinery rniglrt: lea;: oil and that perhaps some of L this might find its taay into the stream. The court noted that this would be an infinitesimal amount, and noted that: there eras very little evidence that the quarry's dust suppression system would place polluted t~~ater in the stream. 't'he court also commented: "In any event, even if there were some possible danger of pollution this could be controled by conditions imposed upon the grant. of the app7.ication and i_f not complied t•rith control]_ed Lhrough the remedial provisions of the zoning ordinance or in a court of equity of actual. pollution occurred." 2£}1 A. 2d at 361. The Board also found that the quarry operation would produce dust and air pollution. ^the court noted that the zoning ordinance provided for the amount of dust allowable in a quarry operation, arnl that the Board could insist upon comp]_iance with those standards. The Board also found an adverse puhli.c effect by virtue of the traffic to he generated by the quarry. Trucks to be used by the quarry were qui.t=e large, although within permissible . standards allowed by Pennsylvania .law. It was undisputed that some of the roads in the area are presently inadequate to handle such trues, and that changes would be required at intersections, widening of some roads etc. In rejecting this problem as a reason for denying the exception the court si.ated: •~ i r }.2emorandum Page 35 ~~ "S9here the use applied for is a1. ]_o^;reblc by spccia] eYCeption, it Host be c.ontempJ.aterl that the use would cause some increase in tr_affi_c. however, in orde:c to find that an inc..rease in traffic can justify denial of a special e;ccepL-i_on, it must_ be sl~,o;an that the increase is of such character ~_. as to 1~>ear a subs tanc~.al re la~ion to the healtz and safety of the oo?nm'un:ity, or a high degree of probabi_].i.ty that such an increase would adverseJ_Y effect. the health and safety of the commu~}ity (citation omitted). Recognizing ti~at the appli.cati.on will result. in some increased t?-affi-c, noise, dust and other similar inconviences, that. Factor alone cannot deny the use cor,templatec] because many of the allotaable and contemulai,ed uses w:i.ia,i.n the zoning district obviously contemplate increased traffic and these other noted inconvience:; (citati-on o.nitted). Of course there are situations tahere an increase in traffic cai-].l justify the refusal. of a special. c};centa.on. However, such increase must be of such a character as to bear. substantia]_ rel.ata.on to the health and safety of the community. It must be recognized that many o` the permitted. uses not .r_ecruirinq special e~:cei,,tion would have the effect L of increase in traffi-c as t•;eJ.l (citati.on or::itacd) . Although there may be an nncrease i.n traffic, there must be a 1,igli degree o£ pro`xAbili_ty c:f causing a serious detriment to the community. In contemporary society development a~;d proctress are likely to bring wi_Lh them increased traffic, but this, standing alone, is not suffici-ent to justify the refusal of an othercaise lae~ful use of property (ci.taton omitted)." 281 A. 2d at 3G3. The court held that the special exceot:i_on should be granted. In the present instance the rezoning is a change o,`. an isolated parcel and as such may be i.nvalidatcd as arbitrary where a more gerieral rezoning might si.a.nd. In Schif:~:er v. Village of t^7il,nette, 245 N.}s.2d 143, ].47 (App.Ct.I11.1969) the court quoted from another case with approval: "'...And although a zoning ordinance may be valid in its generaJ_ aspects, yet in some circumstances involving a - particular piece of property i.t may be so clearly arbi- trary and unreasonable as to resuJ.t in confiscation in violation of the constitutional rights of the owner. (Petr.opoul.os v. City of Chicago, 5 I11.2d 270, 125 N. T. 2d 52.2). In determining whether or not a zoning ordinance is arbitrary, unreasonable or capricious in its application to a given parcel. of land, among the factors to be taken into consideration are the character of the neighborhood, e~;isting uses and zoning of nearby property, the amount by which property values are de- creased, the e>;tent to which the diminution in value pro.notes the public health, safety, morals or welfare, the relative gain to the public as compared with the r ~, Memorandum Page 36 ,~ ..+ hard E;hl_p 1.72pos eCi LipO1 t]i F: In CZ 7.V 1dU:_1 1~TOpCf ty 01'?I1Cr, the suitabiJ.ity of the :;abject property for t)~lc purpose for. which it is zoned, arid, the. tengi.h of tune the property hat-s .rcanai;"~ecz unimproved, cpnsidered- In tie context; of the land d_evelop_aent ;_n the area. (D`yers v. C:i_ty of }8Jm)rLtrsi:, :I-2 IJ. 1.2~i 537, 147 PI. E. 7_d 300) ... "' T11e pr:CpJSeC] Ct}12 n:; E' IIli15"i= fall lll"[!: e~~ ~aC}i 01 t=11e Crl terla; a COnS LCi E',r8.t1O:"i. O al.l l:5 Cl'.:'.l ;llatJ-`d C. llistinquisaule from the pure confiscat..on discussed above, i.s the "baa_ancing" standard. In the present circurnsta.nce the re- zon-nq depr.ivcs the property of any beneficial use; but, even if P'lr. Justice Ilolmes' boundal:y i.n dimuni_t:ion of value were not reached, the zonincr L~rould still he invalid-under the "balancing" standard. No substantial decrease can be upheld where: tl'ua classifi.cai.ion bears no :;ubstani.:ial relationship to the publ:Lc t~rel_fare. ?re s_;=mood t4eat t^~ar};et v. I4cLucas, 146 Co]_o. 453, 361 P. 2d 776 (1.961). Exchanuc, 'i:at'1 1;ar.Y ~of C_hicauo v. Village of Skolcic>_, 229 iv,L.2c55? (1app.Ct-.I11..196'1) anti Stevens v. '.t'a+an of )I~.urE.ngton, 229 I^I.P.2d 5°]_ (Ct,1~pp.IvT.Y.1967),-' Th~._, most obvious zoning crhich beers no relation to the public wc1- fare i_s ae:>thetic zoning. Scenery alone i_s not justification for zoning. L "It rne:y he conceded that, i.n i:eplemcntina the plan apparently contemplated by the framers of this ordinance, aesthetics may be a valid consideration; but- sitcl1 cnnsi- der_ati-on must be merely an incident and not the moving . factor. P:olverin~.. Sign T+?or.k~: v. Ci_iy of }3loonr=i.eld }}i.:Lls (1937), 219 "~Iicii. 205, 2"/l iV.lI,f32.3; _]3itc!~r,an v. Townsh_it? of Oal:].and (1951) , 329 A"ich. 331, 45 N.i"7.2d 30G, t^Ih'Le ~ae_ are not. ir,sensiti_ve to the disruptive and un- sigiztly effect whicl"1 the proposed towers and lines may have upon the scenic beauty of the Fli;~om area, me caYinot sustain the ordinance for nu?:cly acsthe_t_ic re~.sons or unsupported fears o,`_ .t]?eCity planne~:s. '1'he ordinance to the extera that it is predicated anon an e}:cl.usive aesthetic basis is held to be invalid." (1~et:r_oi.t >'dison Company v. City of [+]ixom, 1.72 N.Y8.2d. 382 (]ich,1965?). (emphasis added) -'_T__ See also Kenvon Peck, Inc. v. Kennedy, 168 S.F.2d 117 Va. 1969) and De 1+4ari.aTv. F'nfield Zoning & Planning Comm'n., 271 A. 2d 105, 108 (Conn. 1970). Here the cost of beauty and open space, previously borne by bond. issues has been shifted to a fet^r landoeaner_s. t~?>:~re considerations other than aesthetic are advanced, the gain to the public must be balanced against the cost. to the landocaner. t9here property values are extensively reduced by the zoning and the gain to the public is slight, the zonir:g is invalid. Bathkopf, The Lata of Plannina_ and Zoning, p, 6-6 suh,plemented in footnote 8 to the text, ].971 Cum. Sapp. pp, 70-71; Nectow v. City of Cambridge, 277 U.S. 183, Memorandum Pave 37 "1 72 L.Ed.842; Brehmer v. City of I<e~rvvi_lle~(Ct.Civ.App.`L~ex.1959), . - _ - - - ---' -- r ----- - 320 S.td.2ci 1S'3; Co?.nty of La ~. :'c~.l. (Sup.Ct.:[1.1.1_;62), 1.81 RT.E. 2d 85, 90. And ec TdecL~~ .o ~ ~c~.: c5 of au Page (Sup.Ct.l]1.1951), 186 D].E.7_d 2.91, _i.n e;hich the: coRr_t saicc ---- 'The rule i-s t•aell c.:,.tab]ished that if the gain t.o the public i.s :;mall. v~hen compared r~ii.h the hard- ship imposed upon individua]. property ot~mers, no valid bas:i.s for an e::ercise of the police poi-,er_ exists (County of Lake v. PicNeal, 24 I1]_.2d 253, 181 N.E. 2d ESj. Ct is not the owner's loess of value alone that is si.gni.ficant but tl:<,~ fact that the public erelfare does not require tl.e restrict-i.on and the result.i.nq loss. T+'71~:ere, as here, it is sho~•m that no reasonable basis of public welfare requires the restriction and. resulting 'loss, the ordinance must fall and in deter_minirg whether a sufficient hardshi-_;~ on the individual. has been shov;n the law does not require that his property he totally unsuitable f.or the purpose classified. It i.s suffi.cicnt th:~_t a substa;iti.al decrease in value results from a c]assi_fi-cation bc-ari-ng no substantial relati.oi: to the public welfare.' To the sane effect, see Gr.anq_er v. Board of_hdjustment of City of llcP4oi.ncs (Io~•:~a) , 44 N.hI.ld 299; Forbes v Hui bard, 34f3 .Ill. --------- ------ ----- 166, 180 N. E. 2d 67; Li_rst National Bank & `.Pr_us'~ Co, n. City of }•;vanston (App.Ct. Ill. ] 964) , X03 N:I lei c,, S", .and cases citca; Colvin v. Village of SY.okie.(I11.),.-2II3 N.E.?_d 457, i-n whi-ch the .court stated that t}:e eva.uence must show-that t:he re:;trictions bear a real and substa~itial relationship to the, public hes]_th, safety, morals or general e~e11'are; Bright v. City of I~;vanst.o:_~, 20G I4.E.2d 765.; hle}:rn•.cister v._du Paq_ e Count_v_, ]_4l id.}L.ld 2_G; Hebser v. 'I,oni.ng Yc~~.rd of l?~?peals of Peoria County; 193 N.E. 2d 3?S; Sc}^ii.di v. 3o.~rd oz ~u ja,t,rent of-City of _k, 9 N.3. ----,_-- --.-__- .- --: --,----= r<:v]-cwof City of: 405,88 P.. 2d 60"/; Goldstein. v. Loring Loard of Warwick '(Sup. R.I 1967),--227 A.?_d195 19'1. --------------- "Ar:d see- Shepard v. Village of Skaneateles, 300 N.Y. 115, 89 N. E. 2d 619; Harbison v. Cite of Buffalo, 4 N. Y. 2.d 553,-176 N: Y. S.2c7. 598,602, 152 N. F. 2d 4l.; Chtaud ?:ealty Corp. v. Village of I:e±tsinc= ton, 40 Misc. 2d 259,243 N. Y. S. 2d ]~9, aff'd 255 N.Y.S.411,22 A. v. 2d II95; Ne~,a YorY. Trap 12ock Corn. v. To~•rn of Clarkstc~.:n,149 i~?.Y.S. 2d 290 and by implication, Dcx•rsey v. Village or`. Kensington, 257 . N.Y. 221; Eaton v. Sweeny, 2.57 21. Y. 176, 1"/7 IQ.B. 412, and Vernon Park }realty Corp. v. City of A4ount Vernon, 307 N.Y. 493, 121 N.E.2d 5'17, i.n all of o~hich the uses of property surrounding the subject parcel Caere such that, as a practical matter, the imposition of the restrictions on the subject parcel did not serve the purposes evidenced by the zoning plan..." Memorandum Pacte 38 The Michigan Supreme present situation in N.E.2d 289, 292. (roich <~ Court might have been sr?caking to the Lincolnl-i_ol_ v. Vi]_lago o£ Shoreham, 11II 1?iG2) c , "A zoning ordinance wi~ich r_es!..ri_cts property to a use for which it is not adapted anti thei-eby destroys the g):cate.r part of its value in order that the beauty p` the municipality say be enhzu~ceci :Ls unreasonable. Grand `Ih-un}:_?~?estccrn Rai_]_ro<d Co. v. City oS Petsoit, 3~6 rich, 38`I, 4ii e.??. 2d 195. ,;ce, also, City of Pleasant Ridge v. Cooper, 26'7 A1ich. 603, 255 N.?^7. 371, tahcrei.n this Court. ruled an ordinance is unreasonable which restricts p,-r_operty upon a boundary line of a vi_11agc to a use for ~~:hici~~ the property i_s not ade.ptcd. T~].so, see _S_},anici~ v. C9 ty of J,ivo,iia, 355 P9ich 257_, 99 N.T~~.2d 62. I,TO debaiabac quest.cn as io r.ea.sonableness of the ordinance as appl.i.ed to p]_ainti.ifs' property is presented bore..." In addition to the cases citcc': above which deal ~•?ith p):ob].e,^„s of gr.oL?i.h and beauty much like those present in the 1lspen area, many oti~e): rases have held that aesthetics a]_one are not a sufficient bas i_ , for. zo:l.r:q. These cases arc collected i.n an annotai:i_on at 21 ?iL1z3d ]222, ~-)hi.ch tei].:L not he dealt with here in detail. It is t•~orth noting that the issue first arose in a series of billboard ca~:es, where the courts uJ.ti?n«tely found a vari.et:y of justifications under tl,e police power for. zoning billboards out of residential areas. It is North noi.ing hot•rever, that the u.ltimat.e soJ.ut.ion to the billboard problem has not been throuc;h zoning but through acoui.si.t:i.on under the federal high~~;ay beauti.f.ication program, Ii appropriate local oifici_als are interested in such acquisitions, at least Spar is interested in tvorki_ng out a feasible program. L -- C, `1'1)c CiTty and County A)_e Est~oY~ped f.) om Re~~~i~sinq the Zoni_~;s I1ere. That the proposed rezoning is not even related vali.d]_y t.o its stated objectives other than aesthetics ca,, he documented from the analysis of Mr_. Dal.e tloberg, preseni.ecl by Spar. and Smuggler- Durant t~;ininq Co;npany. Nor can the proposal. be related to the ].966 A}aster Plan. The toaster Plan has been honored over the past seven years by a total_ failure of either city or county to take. any affirmative action t:o rezone in compliance faith tl~e plan with the single exception of this current attempt. Thus property owners who have purchased ].and over the past five years or more have had every right to asswne that the Master Plan was a dead letter, and that government officials would take no acti_an to implement it. llur.ing that period, Spar's owners bought their existing holdings at prices reflecting existing zoning. City and County Officials had several years prior to that within which to imple- ment the Master Plan, and did nothing. I.3emorandum ~„% ., Pace 39 ~~ Colorado courts have long recognized that .. goven~raent may 1?eco.=,e equitably cstopped frori cl~~.arginq i.te, zoni?ig where lando:aners have ta_Yen actions in reliance on t}ie existing zoning to ihe;i.r detriment. For example, in Cra~•?tord v. ~4cLaughlin, 177_ Colo. =366, 473 P.2d 72..5 (1970), ?prior to enactment of an ord:i.nance resiric~.i;,-1 the height o:E apartment buildings, tale lanc]o~~mer had acd.uired land at a p.ri_ce twice what it eroulci }:ave be-en o~orth had the height restrictions: been in efeci and },ad employed architects to des:i.gn a building, n)1 of these' factors were s:i_crnif.i_cant~in leading the Colorado Suprc_ne Court to hold that the City of Denver could not later .restrict the height or a building through ~::-hat b'dS dGllominat CC] a ~~7!loL'nta l_n V1ew° Ord].71anCe. Ind See Denv@r V. Stoc}:house, 135 Co]_o~. 289, 310 P.2d25'6 (]_957) , where, tahui a lando~ar!e?° re]..i.ed upon a building pernlit, the city was held cstopped to later co;n:nlain that the hu:ild:i.ng was in the o;:rorq zoning classification, and the permit issued by nu.stakc, where i.he lando~zner had spe,~t $l.&,000 in reliance on the issuance of i.he permit. ]Iere the landov:ners have spent nearly ]_00 times that sum in reliance on the existing zoni.nq classifications. Next, it is now too late to begin re I,iaster Plan. T.s Trafton Bean s{sated hcar.ing, co?id.itions i.p Pit)d.n Cow~ty i.n just the past five years, sc that now obsolete, and needs replacement. at this da{:c are the same e.s relying zoning to implement a 1966 at tl?e September pub]_ic have change-~d ccr.sidcrab]_y the 1966 3lastcr Plan is 1lttempts to r.el.y on it on no plan at a].i. Finally, several of the zones proposed cio not allo;.> mi.ni.nq as a permitted use, excepi by specia]_ review, where no legal standards have been set. To the extent that these ordinances ir,terfcre t-pith fc-decal grants of mineral rights, the}> are: invalid. Blac)c v. E1};horn Alining Co._, 52. Fed. E59, affinnec] 163 U. S. 445, 16 S.Ci:. 1101, 41 L.'d.2ll (1892) and Butte City Ida{-cr Co. v. Baker, 19G U.S. 125, 2~i S.Ct. 212, 49 L.}.;d. ~i09, 412 (19.04) CONCLUS:COtd Spar's land tail]. be rendered essentially useless by the proposed rezoning. In addition, it should be obvious roe? that t}?e proposed rezoning i_s arbitrar_y, since i_t does not solve the purported. evils of g-ro~oth for the area, and imposes a tremendous cost on one land area which should properly be borne by the community at large, either through purchase or a reduction of densities in all zoninq_ classifications, which would equally burden all lands which cause problems related to growth. i PURCHASE ORDER NO CITY C~F,]n.ASPLEN 01090 ' aspen,coloT$liO,Bfsn hOX V THIS NUMBER MUST APPEAR ON ALL SHIPMENTS, INVOICES 8 ' "" CORRESPONDENCE. TO: Consultation SHIP TO City of Aspen Planning ~ Zoning Box V Aspen, Colo. 81611 i #tAL~ '' ~ ~tgi5f`fibft'SkY. ~ " q~,~Rt'ta~~tT qR ~Ui~tP PER~'C1UR 4tTQTit~TtON ~ ctxwrtum++nvrr 12/29/72 O1 191 623 VES ~ NO ~ PHONE QUfiN7tTV - UNtT DESCRiPTaOtJ UtdiT PRICE 'TOTAL Trafton Bean's Green Line Consultation Fee (City's Share) 400.00 OVER E1,000.00 ADVISE PRICE. DO NOT SHIP UNTIL CONFIRMED. VENDOR COPY CITY QF ..ASPEN aspen,colatad~~,easn box v TO: Consultation SHIP TO: PURCHASE ORDER NO. 01090 THIS NUMBER MUST APPEAR ON ALL SHIPMENTS, INVOICES 8 CORRESPONDENCE. City of Aspen Planning ~ Zoning Box V Aspen, Colo. 81611 ~", £1A#~ ' ~` ~' ~'. ~.1~ .. iS~f4N ~t0. EiE+'+~i'ttMfC~T fNf ~UNt? PER-YOkiR QtJf'~7A1'ION . =~ CoN6iW~7+YlON 12/2972 Ol 191 623 VES ~ NO ~ PHONE ~ ', t Qi{~ry'{r(y . {}' _DESCPoPiioN UNtr PKiCf 4iOTAt ~. i Trafton Bean's Green Line Consultation Fee city's Share) 400.00 I - :T ~~ ~ 'iN1S e ,Tr7- 4L-_-Da spy t.'IUS; EE RETURIMED 1, TQ THE FiN S ORDERED. r IF OVER E1,000.00 ADVISE PRICE. DO NOT SHIP UNTIL CONFIRMED. ikl$. ~i#X,t'xf, A$PEN lS E%fMF"i fR4M PAYA4ENi Of fEDERAi, E%g5E iA%E9, PREPAY A{{ $IfPMENi N SS 41ti iSE INDICATED:" RECEIVED ~ DATE RECEIVED PURCHASING AGENT ~ I i i 1..i~ KtUU1JIIlUNINCi UtYI. CITY QF ASPEN aspen,colo;+d#,+n box v TO: Consultation SHIP TO: PURCHASE ORDER NO. 01090 THIS NUMBER MUST APPEAR ON ALL SHIPMENTS, INVOICES 8 CORRESPONDENCE. City of Aspen Planning t; Zoning Box V Aspen, Colo. 81u11 `- f}ATE ~ ~~ .R[QUISI'ITflN t10. TtEFARTtriENT oR:fUNI7 FERYCYUR QU6TATR3N ~ CQNEIRMATION ,. 12/29/72 O1 191 623 vES ^ No ~ PHONE I QUANTitY UNIT DESCR4FTIC3N. UNI T PRICE ;T£3TAl Trafton Bean's Green Line Consultation Fee (City's Share) 400•~0j t i I i IF OVER 51,00000 ADVISE PRICE DO NOT SHIP UNTIL CONFIRMED TP1fi #TY. $IT ASPEN T5,6%6 MFT f&OAI PAI4AENI Of fEGkRAt EXKl56 iJy[E5. - PREPAY AlS SHiPM6N VI+I E55 OTM iSE IN6ICATED. RECEIVED ~ DATE RECEIVED i PURCHASING AGENT ~I LI. ~, L- REQUISITIONING DEPT. September 26, 1972 Mr. R.S. Whaley, Assoc. Dean College of Forestry & Natural Resources Colorado State University Fort Collins, Colorado 80522 Dear Mr. tJk-aley: I would like to extend my appreciation for your assistance with the Aspen and Shadow Mountain rezoning application. Your comments regarding the zone change will prove valuable in the forthcoming hearing and evaluation of the community's need to protect the natural appearance and character of Aspen. I have enjoyed working with you. Again, many thanks. Cotdially, Herb Bartel City/County Planner HB/kp T0: City of Aspen & Pitkin County Planning & Zoning Commission FROM: Herb Bartel, City/County Planner SUBJECT: Rezoning Application: Mountain Greenline DATE: September 26, 1972 LOCATION: Aspen Mountain and Shadow Mountain APPROXIMATE ACREAGE: 2080 acres PRESENT USE: Aspen Music School, Condominiums & Lodges, Skiing, Scenic Area, Clear Air Drainage, Water Shed Protection, Wildlife Habitat PRESENT ZONING: Pitkin County Zoning District: AR-1, Accommodations and Recreation District; T, Tourist District; and R-15, Residential District. City of Aspen Zoning District: AR-1, Accommodations and Recreation-Urban District. ZONING HISTORY: The area was originally zoned T, Tourist and A/F Agricultural/Forestry in June of 1955 by Pitkin County initiated action. Present county AR-1 zoning was applied by Pitkin County action and present city AR-1 zoning was applied in conjunction with the south side annexation by the City of Aspen in 1967. COMMENTS I. Conclusions A comprehensive analysis indicates that a justification for rezoning of the application area exists for the following reasons: 1) Mr. Trafton Bean, Planning Consultant for Pitkin County at the time that the existing zoning was applied to the application area, has substantiated by letter that an original error was made in approving the existing zoning and that conditions have changed justifying rezoning. 2) The 1966 Aspen Area General Plan recommendation of Agricultural/ Forestry is correct for the application area based on the following considerations: a) Goals and objectives concerning, in part, uncontrolled growth, a reliable recreation industry and stable economy, rate of tax increases, preservation of natural resources and the community's historical-cultural heritage. b) Population level and a rate of growth which protects against overcrowding and congestion that can be served without over- loading of public facilities and resulting serious burden on the tax base. Research on the perception of overcrowding in the tourist industry is still in its infancy but must be considered for highly popular areas such as Aspen. c) The level of public services, particularly fire protection, which can be reasonably provided. -2- d) That the size of Aspen is important to maintain its atmosphere and character as a special place which is essential to avoid sheer busyness, noise, confusion, and impersonality that can destroy a recreation economy. e) Permitted land uses which can best avoid potential geologic hazards and physical dangers of the area including but not limited to mud flow, rock fall, avalanche and unstable slopes. f) The capability of the land, water and air to absorb the impacts resulting from the land uses allowed by the Agricultural/ Forestry District. g) The Agricultural/Forestry land uses produce the lowest potential for air and water pollution and result in the lowest potential disturbance because of the requirements for site excavation and grading, and vegetation removal. h) A low potential for increasing surface runoff results because of the limited amount of impervious surfaces created. i) Physical characteristics of the application area, particularly soil, slope and climatic conditions, which produce a high vulnerability for resource damage and an inability to restore and maintain a balance of natural processes after disturbance. j) Examination of the adjacent private lands now zoned Agricultural/Forestry indicates similar physical conditions to those of the lands within the application area. k) Provides the greatest compatibility with adjacent public lands. 1) Preservation of the historic, cultural and urban design significant of Aspen and Shadow Mountains. m) Land uses which can occur without creating aesthetic nuisances and damage to the scenic resources of the area including its natural and open appearance. It is important to emphasize that this recommended zoning change from T, Tourist and AR, Accommodations Recreation to Agricultural/ Forestry is a first phase of the steps now necessary for protection of Aspen`s general welfare. The second phase is to apply mandatory review requirements for all development at the base of Aspen Mountain and in the application area because of its unique characteristics such as steep slopes, potential soil and vegetation damage, existing geologic hazards and the need to provide for urban design considerations in the application area. ~. -3- II. Overcrowding of Public and Private Facilities Existing public facilities are being overcrowded as the result of the rapid growth which has occurred in the Aspen area. The costs for expanding these facilities will be the responsibility of the public and will place a burden on the tax base of the community. This demonstrates that present zoning has not successfully dealt with one of its principal aims, that of controlling the demand for public facilities and the burden on taxes that this demand creates. The following list, prepared by the City/County Planning Office, represents only a portion of the costs that have been incurred to the public as a result of the rapid growth in the Aspen area. Not included, for example, are state costs for reconstruction of Highway 82, local costs for insuring the preservation of open space, and the necessity to provide tertiary sewer. treatment facilities to insure that the quality of the Roaring Fork River and its tributaries is maintained. EXISTING DEFICIENCIES IN PUBLIC FACILITIES Public Facility Surface water runoff, sedimentation ponds, and storm drainage systems Sewage treatment works Hospital expansion Aspen Central Area Transportation Plan Airport Transportation Center, transit system linking Aspen, the airport and Snowmass Airport terminal total Capital Cost $ 350,000 *1 $ 358,000 *2 $3,000,000 *3 $6,000,000 *4 $4,000,000 *5 $ 650,000 *6 $14,358,000 *1 Capital Improvements Program presented in conjunction with 1972 Annual Budget for the City of Aspen *2 Expansion of Aspen Metropolitan Sanitation Treatment Plant increasing the capacity from .72 million to 2 million gallons per day. Cost estimates are not available at this time for tertiary treatment but are being prepared by the District because of concern for maintenance of the quality of the Roaring Fork River. -4- *3 Aspen Valley Hospital Master Plan and narrative, June 1972-- Medical Planning Associates *4 Aspen Central Area Transportation Plan- Alan M. Voorhees & Assoc. *5 Regional Transit Feasibility Study- Aspen/Pitkin County-- Alan M. Voorhees & Assoc. *6 Preliminary Cost Estimates- Terminal only Population projections used in the planning for these facilities were taken primarily from the 1966 Aspen Area General Plan which does not recommend the existing high density zoning in the subject application area. Therefore, without consideration of the zoning recommendation by the 1966 Plan serious overcrowding of public facilities will result and people demands will be incurred that result in serious damage to the character of Aspen which makes it a special place. Conservation of the area's natural resource heritage and the man- made environment was considered in developing a plan for the area transportation system. The transportation plan envisions an implementation sequence beginning with the Aspen central area. The plan recommends solutions for parking, establishment of malls, a mall shuttle and a central area bus system. This portion of the plan is not by itself a final solution to central area transportation problems. After 1976, the number of cars entering Aspen will be higher than can be reasonably and economically accommodated. A transportation center outside of Aspen will be needed to intercept air, bus, and auto passengers, and a transit system provided to substitute for the auto. Should the application area be developed according to the existing zoning serious overloading of the trans- portation system, if implemented with its planned capacity, would result jeopardizing the public investment in that system, and the public welfare, including increasing air pollution. Also it is not economical to simply design a transit system with a higher peak hour capacity capable of moving additional skiers from Aspen to outlying ski areas, because of the difficulty in funding the system -5- as presently planned. It is obvious even to the layman that the present parking and street system in the central area cannot support additional demands which would be created by development of high density in the application area. The transportation plan for the central area cannot merely be expanded to accommodate a higher capacity because of limited financial capabilities of Aspen and because of damage to the resource base, particularly that resulting from air pollution and congestion that would result from transpor- tation planning designed to accommodate more cars in Aspen. Another public facility which must be provided, is a sedimentation pond to avoid pollution of the Roaring Fork River and insure protection of the river and fishing as a resource essential to the recreation economy of Aspen. The major private facility which must be considered is skiing and the quality of the skiing capacity on Aspen Mountain. Because the lodging capacity in Aspen has already exceeded the skiing capacity of Aspen Mountain, a serious problem will arise in the future with continued high density development as a result of the inability of the transportation system to move skiers to the outlying ski areas. III. Natural resources of the application area which provide a basis, in part, for reconsideration of existing zoning. The intensity of development which the existing zoning allows would damage soil, vegetation, wildlife and resources of the area, and would produce harmful air and water pollution because of the unique physical characteristics of said application area. Natural scenic beauty is important to the recreation economy of Aspen and to maintenance of Aspen's competitive position as a quality mountain resort. Although Aspen Mountain did undergo substantial physical alteration during the mining era, the nad.ural beauty of the mountain has been restored and major visual qualities must now be protected to preserve the unique physical environment upon which -ti- the economic well-being of the community depends. Obviously if the scenic beauty is to be preserved we must avoid long term visible scars from road construction and utility extension that are occurring on the other mountains in the vicinity. We also must conserve those natural elements that make up the scenic beauty such as the natural vegetation, dominance of the natural setting and the open character of the mountain which would be extensively changed and disturbed by the bulk and scale of buildings now allowed by the existing zoning. In the case of the subject application, aesthetics most certainly does relate to the economic, general and cultural welfare of Aspen since a major portion of the revenue used to provide governmental services is derived from sales tax paid in large by tourism. The existing zoning, because of the range of uses permitted and density allowed, would not protect the profile of the historically significant Silver Queen on Shadow Mountain, since a hotel or restaurant could be built on the ridge line. The natural character of Aspen Mountain and Shadow Mountain play an important part in establishing the unique setting which is essential for Aspen`s position as a cultural center. A slope, soils and vegetation report has been prepared by the Soil Conservation Service which indicates that generally, soils in the application area have severe limitations for development and excavation, are shallow, have a low water holding capacity, a high erosion potential yielding a great amount of sediment and, when disturbed, are difficult to revegetate. The stability of the soil, the consequences of soil disturbance and the predominance of slopes 30-45 per cent and over 45 per cent in the area indicate an incapability of the soils to support the density allowed by the existing zoning. The natural vegetation of the application area plays an important role in establishing the scenic beauty of the mountain landscape, provides critical wildlife habitat and forage, and reduces surface .. -7- water runoffs which would produce soil displacement and erosion resulting in stream pollution from sedimentation. The natural vegetation also performs a vital function in preventing landslides, mud flow, rock fall and avalanches because of the steep slopes. One has only to observe the bulk and scale of buildings now constructed in the areas along the top of Monarch, Mill and Galena Streets to establish the extent of disturbance of the natural vegetation that would result from development of the existing zoning. Opportunity to observe elk is limited and their preservation must have a high priority because of this, and the fact that they add variety to the visual quality of the recreation experience. As was indicated above allowable densities and related man activities would damage the natural vegetation which is essential for wildlife habitat and forage. Land use must therefore consider wildlife movements, and needs, and not conflict with them because of the importance of wildlife resource. The most reasonable way to control urban air pollution and maintain quality air standards is by curbing air pollution at the source. It must be recognized that to accomp;_ish this, limitations on growth may be required in certain areas, and that growth may be directed to other areas where physical conditions are not likely to produce air pollution. The Aspen Townsite is especially susceptible to the development of air pollution problems because of the following climatic and meteorological conditions: 1) Mountain air drainage patterns in which the colder, heavier air slides down the mountain carrying with it the pollution of development. 2) Common occurrance of temperature inversions during winter months when pollution emissions are high because of population increases and extensive use of fireplaces. 3) High altitude conditions which affect increases in pollution levels. 4) High. per capita number of cars not tuned for Aspen altitude and high per capita use of fireplaces and dining out. JOHN A. LOVE Governor M6 N M COLORADO GEOLOGICAL SURVEY DEPARTMENT OF NATURAL RESOURCES 254 COLUMBINE BUILDING - 1845 SH ERMAN STREET DENVER, COLORADO 80203 PHONE 892-2611 Mr. Herb Bartle City-County Plaener Pitkin County Aspen, Colorado Dear Mr. Bartle: Sept. 19, 1972 JOHN W. ROLD Director With reference to our telephone oonversation of yesterday about the new series of interpretive geologic maps of the Aspen quadrangle by Bruce Bryant of the USGS--upon inquiry I discovered that these have not yet been distributed to the various outlets for sale. Since your need for such information is urgent we are mailing the six that you. requested from our own preprint folio. Please consider these as a loan and when the single prints become available we will let you know. There is a brief text and explanation with each map which should be carefully read before evaluating the information in any particular context. Geologic in- formation of this scale is best used in general planning and feasibility studies, and for any specific development more detailed geologic and engineering site investigations should be made. We will still plan on dropping by your office when we are in that area. If we can be of further assistance, please call or write to us. Your very truly, William P. Rogers Engineering Geologist Colorado Geological Survey Memo To: Trafton Bean From: Herb Bartel, City/County Planner Date: September 18, 1972 Re: Aspen Mountain Rezoning Application I have enclosed information regarding Aspen Mountain skier population, and ski lift and tourist accommodations for your review. I will have the city and county coning codes available to you when we meet next, as we have no extra copies in the office at present. Memo Date: September 12, 1972 To: Trafton Bean Frow: Herb Bartel, Planning Office Re: Rezoning: Aspen Mountain and Shadow pountain Enclosed is the outline of the written material intended to be the written file for the rezoning application. Please check it over and let me know if you feel some of the information is unnecessary or that additional information is needed in some areas. I could use some help in an outline of additional law cases to be submitted to demonstrate to the officials that down zoning has been done in other places. Also I aw sending the letters that have already been submitted as examples of the type of information intended to build the file. At the Public Hearing itself, it is the intention to merely submit the information and not read the material. Will have a slide presentation hawever, hopefully to make the application more familiar to the public. ~, L~ P.ugust 30, 1972 Mr. John W. Marr, Ecologist Professor of Biology University of Colorado Boulder, Colorado 80302 Dear Mr. Marr: I would like to extend my appreciation for your assistance with information on Aspen Mountain vegetation. I am sure it will be helpful evidence for the September rezoning hearing. I will keep in touch with you as to progress on the Mountain Greenline hearing and the River Plan adoption. I have enjoyed working with you Again, many thanks. Cordially, Herb Bartel City/County Planner HB1kp J .,,-~-_ ~--- `-.~ ., /~ r a ~ ~~, c-, `\ ~~~~-C. _J~--Q_ ,_ ~.h..- II ~~~ sc~- ~~~~~~- ~;,~-~-~-~s ~ -;-~ -r ~~ ~~. 1.To~.S ~ ~sPe~ K i ~J S~1 Lr~T ADD~TIU~JS -Ru D cC~S: yc~cz ~9s~+ - uo. 3 ~.~~; was .Ns=/r~~EO - ~~ Add,~,a, -Fo up1~,U T2*~uspcr~`~q~,o~J s~ucc ~ti;I,al o@c-a~~uG ~~ i9~lb-4~, yt~(Z 1^1S(o - No• '~V- ~Iti Ca,,~ruE ,vE~~ 1>Z~ iNS~AuLEO - c~ T-aflR ~~1u owT SgnE SNhktR~ \ yG~c;_ IgS1 - uo. 5 LIST C3EU FttiJ, L~~TJ ~NSTa1.l~~ ~, YEAR 1959 - No, 6 I~lT u~sT~u.E.6 'SIEflR \9b1 - NO. 1 LIB RCF~.Aa.C°0 wR~i Nc`U H\GNbR CA~AC~\~( ~rt7 ~R li b3 - Wo.g ~I~T CuYti1CS> iusT,~uLCA yf~tR Igl,9 - 1ao.?~ ~I~T REP4ACE.D w,rtl tiK:UJ 1t161tF,R c~9r~c.'31 U~i'- ~Eie~:l~'11 ND ~ 1 ~.itT RC P W CE4 Wl'H ShORTEJ2 t9E.i~t ~1(~tlEt2 . CRi Rc.T~ ~,~T. I.owE1t iC,'-Mi~vAL }(a~EJ uP~i~~~ N6TES OIJ TttE< ~ ~G-t p{~Er„J i OT TOcu21 sT ~CCA1'10AJ~ i ~l'~f S ~ l \i~G Cif, ~'~:~ ~-J ~h \aSS c~ttzs,,~ ~q`I2, ~e.'~K~J aRIC:~1~P~tr. S;. q- C}P~ttl<~:~~ SS dip flSp6J t~1.AS - b 3ulGS - 10(o uwSS A°~uJl~ucK - 3 "~3~D(,S - 3c u1J~Ti M+a~JOR e1c,a~E i 3L0(, - ~ ~ uV~tS Au,'2Aa7t AE~s ~ LIDC`s - ax- ua 1'S T~PP~c~ ,a,J - ~ 3~DGS ~ as uu,~S S-'"q~;E fl+'rs ~ b1D65- a~ ~xN,TS l'.DNT~gE IS~~~ Wa - ~ BuX'a - ~c ~~~; "n1~Xt1uJ~- ttcuif ' 3 B~4,S - 3o vu,Ys i cPP~f ~ oD6K: - ~ 3~ 0 ~ - a u+J,rS g1~.E Si~ucc- ~ . 1 DuDC~ - 4 uN~r<. DOl-WHITE V~LLHS^ e~ Q4GL°:, 3(o U~~*i!, Kcui~Qr-b1 i~PTS R. b~: zc +~,.1~~`. 'S+I~~C-fie GFtti-;(`t' •. 1• ~~~bG~.° IQ uNii: kct.G»k.-,aP ~ou~E: l (~~.D(, - 3u ua,t~ aMa,~U~ ~-irtJ~RQt`S• ~ ?~G~,`. - a© ua~rS Page 2-A The Aspen Times August 10, l y r t The ASPEN TIMES oars, ~ `°`°""°° ~RESS ASSOCIATION GENERAL EXCELLENCE - - ` i ~wA William R. Dunaway...... .....Editor and Publisher R~ P.oc George W. Madsen, Jr. .Associate Editor coro vP¢ss Su Lum ................. ......Advertising Manager TYPOGRAPHY SaIIY Barlow .............. ............... Reporter 8 PRESS WORN 19]1 Nick Pabst ............... ............... Reporter /N NFL Bryant Ricker ........... .. ..Production Manager Vivian Crum Ewing ....... ....... Business Manager iacss V Second Clau postage paid at Aspen, Colorado. HOTO Subscriptions $7.00 a year in Pitkin County, $12.00 RNALiSM outside. Send orders for subscriptions, change of address, 19]1 Q NNE or undeliverable copies to THE ASPEN TIMES, BOX E, ASPEN, COLORADO 81611. editorial keep the mountain green Although zoning has been in effect in Aspen and the neighboring county area for 17 years, the dangers of large- scale tourist development on Aspen Mountain were not recognized until last month when a special city-council committee began studying measures. to up date the 1966 master plan. Of course, when the original zoning was adopted in 1955, relegating much of Aspen Mountain to tourist classification, neither the local economy nor technology was conducive to construction on the steep slopes of Ajax. Since then conditions have changed. The pressure of demand has driven up the price of land to the point where any tract, no matter how steep, arid or inaccessible, faces development. And technology has advanced enough to permit construction on sites which would have discouraged builders when Aspen was first formed. So it is inevitable, unless the zoning is changed, the blight of condominiums, now lapping at the lower slopes, will soon sprawl up the hillside. This prospect frightened the committee. It felt one of Aspen's major assets was its remaining green, uncluttered mountain sides, slashed here and there by a ski lift or old mine, but as yet uncut by the urban cancer of roads and buildings. What could happen to Aspen Mountain was apparent by turning to gaze northward at Red Mountain and replacing each house with a multi unit condominium. Once the committee reported its fears both city and county planning and zoning commissions were quick to react. They agreed a joint city-county public hearing should be scheduled on September 26 to consider rezoning the 2300 acres on Aspen Mountain, some of which is in the city, but most of which is in the county. The recom- mendation was to rezone a strip from 8000 to 8200 feet in ~~(~~VE2M0(ZLOV~SAyS tT'. elevation from AR, Accomodations and Recreal PUD, Planned Unit Development, and the ren above 8200 fe~f to AF-1, Agriculture and Forestr; As with any zoning, the proposal would not st struction on Aspen Mountain, but it would lit number and type of buildings in the AF-1 distr permit control in the PUD district by necessital approval of all development plans. Although the F County Commissioners has yet to zone the rema: Pitkin County, as recommended by the Master F hope it can recognize the dangers tourist develops Aspen Mountain poses and will join the City of rezone the slopes as suggested by their committ Arts, craft fair to benefit Touchstone ~ -piles *l~nes-t--{iz ~4 ~. , ~p ~ y 7 ~4~ iT S 6_ S ^ ~ 7 O p H r^n ry c L~ y vmi H B. N y~ A (SD O y p ~ OG lSD ~o~^~f'm ~n ~a^o'oc ro o~ o y. _. F o: r^~DD o y S m~ C p£ o p ri m P. o£mm'o~ m,?omoo m n c `~ °' n ~ x ri^ ^ is c°c ~'m rpo afDw romyE,c ~'~acyr^o_f y~ y^ y ro m p y y~ m ££ a.°:~- ~ pO m= y m n m S p y' cro nro ~ N C C~ zm o ~ m - n Z •~/~//) O /~ 0 U x ~> N ~r m 7 u ~-' - - 7 ~_ _ m x R a a .r C m A ~4 T O c _»_ C J O u L ~i 3' d .'< 1 S '. ~ << O rt 0 b ~'mm~33~om°mc~o. A ~ Q a~ ox.y-m ~~w~ °'9 G N O w~ni9F°o~.o3..~. ~~ ~ 0'n awm~m'e a$~o°' ~Y p m m ro p m n 7 0 ro .n+m y r. ^. ~.p _Si ~.O ~. ~ F ~ d A w apa `~ 3~ w R~ y m 0 . ~ O .. O ~ ~ 7 s C M ^ T m 3 ~ 7 p ~' N• S •~ 'n O ~D n c m is N C .~ ~' O r'- ~< N ~~, , ,~ ~ am m -+ v F O m Q ° ~ O =.y d r O ' ~ O y ~ ~ :~ ~ ,w ~ V c m v 60 ,V ~ n ~ o • o Om ~ ro _a O ~ p p ^ ~ IQ y ~ S I~. ~Y o x F Z ro° O M ~ :~ N p n ~ o . a y ~'7H9m 'T1 io~~~=Y oc N z N G p C 0 t^9 ro E A ro ro d y O '~ ~ X04 ~ ^~ N £ "~ r~ m ~ n ~ y ~!.O ~<~~Sn~w ~aa~myarom 3. dal? m .^r7m wgn ~< n n c - c ~ n p _ E fDy m~ca$''nm co B o m~.'.pm~£~ mNod~s~a `<' ~? ~ c'C 5.~. p O m~ y a m >' Q-' m a~ oc•- ?w?~no ~ ~ ~n-oAa~ ~? p? 5~'°°$ N m H s; o o a ~' ; 3 p t^o f0 rm.. ~ lC ~< S ^f fE fD n ~ (D m ~ G N C < n Gi (C ~ ~ ~ ~ ~ ~ m ^ ~ ~ ro 'V ~ A ~ c o 0 3 '" 'l7 p O s n O' t y c v;y "C ~7~ n x~ n' ro n c S Si ... d y p y y. '.. C J N L ro ~ n ~£ ~ N ^ n S m O, p ado 2.~c. ~.o o, mo~UC ~°; T o . n p ^~^ .a m n y 9 u o a H Y '^ y 6 s ~ °_'.o romc x^,o 'nom-`D,~ ~ ~ ~ m C n ~ 'p C ~. ~. ~ JC '/I T ..~n s. ~ n 8 0 ~~ ~ m O ~ y S ~ ~ '~ .p rD O n S ,~ o^ o n m S o^ o OG S ~ 3 G '~ ~~ t d>> O w o n aao. _ a~ c S n N Q ',~ " +~ L ~ 7 O~ m 0 Q~ O H_ - m m V •~ .. ^ ip ~ `o o ~,ix Sa6'~oor. c c ~ o "~ c w s n o v '~ aq a -~ c_ rc~ c m n- ro >• ~ $ _ -^^d_m o3V ~~ ~' n •G ro'.. C Tn pq S y i y p (4 .~. ~D C ~ o c w a_ ~ ~ c ~ n s . n ~ .p 'f ~ A d ^ o v. F ro .' o a ~ ~. ~ ~°, ~ = ~° tea-^~ °'< c H °'• 'y rn y `~ y' w n n N ~~ fib 3 e: ~ a~ r~ v Y ~' ~ -, i ~'~`~"~ 4 rn (:°~~ 4, i Page 16-D The Aspen Times July 27, 1972 Aspen mountain rezoning considered Tourist zoned land on Aspen Mountain above a certain line may become the subject of a public heazing in September to consider rezoning to agriculture and forestry use. This was the tentative decision made by the Pitkin County Planning and Zoning Commission Wednesday morning after a joint study session with the Board of County Commissioners. $185,000 Hotel and Motel with Dining, Lounge with Game Room. On Main Street in Basalt. Minutes to Aspen and Lake Ruedi. Income records available to qual- 'rfied buyer. Expansion possible. $50,000 down. DAN TSCHAPPAT CEO. REAL ESTATE Aspen -Box 7022 - 526 East Hyman -925-7880 A recommendation for rezoning approximately 2300 acres of T and AR-1 land on Aspen Mountain to AF-1 was received by the PZ from the Master Plan Study Group. According to the recom- mendation, the rezoning was one of the suggestions made by the 1966 Master Plan and should be carried out before roads are cut or development occurs. City-County Planner Herb Bartel explained that he would like the hearing and rezoning action to be taken join0y by the county and city to ensure cooperation. ` Line above which the land- on Aspen Mountain should be rezoned would be the one above which city water can not be provided by gravity without additional pum- ping, he said. + In other business the two groups discussed the PZ Com- mission's recommendation to deny rezoning at the present time on the 226-acre Top of Aspen project for the McCulloch Properties, Inc. An application for the rezoning to permit 4o0-plus units of con- dominiums was subject of a public hearing last February and discussed at several PZ and county commissioners meeting then. No action was to Wednesday's study session Also discussed was the need for a regional treatment plant and suggested that the count missioners budget funds I acquisition or a new stud} ~ryitryer the ~eatq THURSDAY MORN[NG,J -We're now in a period of probability for aftergo~ evening showers, but the is for a return to normalcy weekend, according tothe1 Weather Service. That me. Aspen is due for its ce summer amougt of sun a there will be usual chi scattered afternoon and precipitation. In short, really nothing new in tt weather picture, except the had a few more light showe. past week than was the earlier days of July, and i daytime temperatures slightly lower than the n. this time of year. Accordin West Aspen Weather R~ Station, Aspen received a inch of rain in the past sev (.03 last night); the low ni temperature has ranged fr. 54 degrees (Sunday night's hottest of the summer); daytime high temperaturv been from 77 to 83 degree ~ ,„s Page 2 R°zor:in~ 72-4 McCullough A11 portions of the following described mining claims lying northerly and easterl of the Della S. - Smuggler compromise line as the same is described in Book 97, Page 77 of the Records of Pitkin County, to wit; Smuggler USMS 1656 General Jackson USMS 3941 Glendale USMS 6859 Arkansas USMS 8394 Chatfield USMS 1462 Part of Chatfield USMS 1462 J. C. Johnson USMS 1436 Excluding that tract described in Book 177, Page 378 of the Records of Pitkin County. Parcel 1 contains 199.4 acres more or less. Parcel II- That part of the Brown Placer, M.S. No. 15047 containing 10.041 acres, more or less, described as follows: Beginning at corner No. 9, M.S. NoJ. 15047, Thence running N 0°28' W 1215 feet to a point; thence N 89°59' W 120 feet to a point; Thence S 21°09' W 1302.6 feet to a point; Thence S 89°59' E 600 feet to said corner No. 9, the place of beginning. Parcel III-That part of the Emma Lode, M.S. 2120, The Mollie Gibson Lode, M.S. 4281 and the Lone Pine Lode, M.S. 1910 described in Book 234 at Page 48; that parcel. described in Book 219 at Page 271; and that part of the IQ.TS. 1/4 of the S.W,.4 described in Book 218 at Yage 471 that lies northerly and easterly of the centerline of the Salvation Ditch, all in Pitkin County, Colorado, containing 16.88 acres, more or less. All of the above described parcel III is situated in the south ''z of Sec*_ion 7, T.lOS., R.84 W. of the 6th P.M. from R-15 Residential and R-30 Residential to AR-L Accomodati_ons '~ and Recreation as indicated on a mai> on file in the office. of the Pitkin County Building Departrnent. The Map may be examined during regular business hom:s. The Hearing is scheduled as a joint hearing of the. Pitkin County Planning and 'Coning Coimnission axed Board of County Cononissioners of Pitkin County, Colorado. At such Public Hearfnct, ali pc~sons ir, interest may appear and be heard ex grossing their eb~ectinr.s or o,r,inions -- ~~y ~ _ ---- ------- G~ ~`~ - - K.7 _ ~3.~n1~?~Kn ' .c 1- ,--'`-may- -""~^'--r~~1'--- ------ 4 L,--- -_ -`~~ ~ - CYSB_~~-[~O~s ~, o.mr4.~11'l.~nv~~_ ~ ~' ~I~~'--`1~~~-- ~C, ~~ _ - _-. ---- - - --_-~.11G'rJ1~i lJVTC~r-//03~~..-4E"""c"m'--"t]~~ _s'~tv`F'~'-+~-1.-.~/~---- ,- .~_ ,. ~~.,0, ne~Q, --320, _. ~_ 0 - `~~ ~'~~-= c~ _ ~/.~,a?°~ ~~, ~~ fizz _~~.~~~ ~, - _~T_. %~~ -~~~p~ --- -- --- ---- ---- ,. /V -+ - --------- -- --- --~ __ -----~~~~`~~-~,--s~{~~..un-ate - - '-" -- -- __ L--~.~. - _ - - __ ~'~'~ _~~.-t~cs.eJi1 _ _ __ _ __ - ---_ --- --~~ ~ ~ _ ,-_. ... -, _---. - - ----------- ----- --- X. __ _ __ - ~ .~ , (a copy of the) OFFICIAL RECORDS OF THE _ - ASPEN REGIONAL PLANNING EOMMISSION FOR 1954 AND 1955 c ~ Aspen, Colorado Jnly 27,1954 The Board of County Commissioners Pitkin County Aspen, Colorado Attention: Tdr. Orest Gerbaz, Chairman. Dear Orests On Friday afternoon, July 23rd, the following members of the recent>,p appointed Regional Planning Cotmai.ssion met here at 749 homes Fred Glidden Fritz Benedict Sam Caudill Henry Stein Fie studied the proposed county resolution, copy of v~ich I shall. include with this letter. Ae further discussed the application of this resolution to our immediate progra,. and reached conclusions ~rhieh I veil]. attempt to out- line in this letter in the foxr,: of recommendations vrhich vre nom present to the county commissioners for immediate legal action: -1- Ffe urgently s'.aagest that all of Pitld.n County be zoned by adoption of this resolution form and the overlapping districts classified as Residential and Agricultural. This clearly indicates that the resolution intact, as it appears, should be adopted through Section 5. The sections dealing vrith commercial and industrial zoning we feel do not need consideration at this time nor do we need a forest and mineral classification. (hir idea is that by classifying the entire county areas as combined residential and agricultural auy develop- went outside of these two vrould then become an excevtion. As exception it mould automatically require official approval before being allo;ved. Thus the noraal develo~.ents which vrovld come under the classifications of Residential or Agricultural tivould require no scrutiny or official action and only sneK ~2 C development of a commercial or industrial, and so forth nature ~rould need attention. Thus, if a rancher sold a small piece of his land to a man who ex- petted to build a filling station, or garage, before the nerr filling station, or garage, could be built approval by the planning commission would be necessary. :~rther on in this letter I will suggest hour we thought this should work. _2.. The recorJnendation of our group is for the immediate adoption, by the county commissioners, of a resolutions or law, making all roadside advertising signs within Pitkin County illegal. Ho~sever, since we are focusing upon Aspen at ' the present tine rre Suggest the resolution that roadside signs along Highacay 82 between Basalt and Indep~.,ndence Pass be bsnned, and also signs along county roads connecting with Highcray 82. The immediate exceptions are of course traffic warnings and directional signs and of course the actual signs of pro•- prietors'nip at the location of a place of business. Mere again the sane principle of exception should apply. Any individual who might find the ban on signs would result in great hardship could make written application for spedial per~ni.ssion and be granted by our group permission to install some acceptable type of sign. Our group mould not care ~w take the ini.tative in suggesting a form of roadside directory but believes. that any persons whose signs will be removed may wish to combine their roadside advertising into some attractive uniform presentation tYiat could be displayed in some designated location outside of each entrance to the town. If there is interest in this directory developaent our group suggests that those wishing to participate combine their ideas and money for the purpose through the Aspen Chamber of Commerce Office and effort can be made to obtain location, and suitable design for a highrray advertising directory. As this project develops our pla-wing com*aission crould then cooperate by granting #3 ~ ~ exception for the paz-ticular combined directory structure and could probably be helpful in obtaining correct roadside location for such an installation. -3- ??e recommend the follor::ing rechanism for adni+v.ster~_.ng the resolution in gaestion. Any individual, or business planrLi.rk; construction, or development which does not come :rithin the definitions of the Presidential and Agricultural description outlined by Sections 1 through 5, should make a mitten application for a hearing before the Planning Commission, the Planning Commission i.n turn will advise the County Commissioners to grant, or not to grant, the necessary permission. A small standard fee should be charged for this service. In case the planning commission refuses permission the county commissioners should constitute the.~nselves as a board of appeal, if this is legal. Thos every development outside of the rZesidential or Agricultural classification would be subject to scrutiny by both the planning cornai.ssion znd. the county convni.ssioners and the decisi6n of these two bodies to grant, or not to grant, the exception tirould be final. -1+ We recommend that the legal adoption of the resolutions be made knovan to the Aspen City Council so that they in turn may also adopt the principles to apply to their presexrt zoning structure, anct their future development of ili.~ther zoning restrictions. -5- ?fie strongly recommend, as part of the county resolution, the adopting intact of the recent City of Aspen Ordinance relative to m;n;,mm floor space per per- son, and plumbing facilities, etc. By county sling the benefits of this city regulation would control standards of lodgings both in and out of Aspen. -6- Ode wish to further study the matter of a building code re~ilation to apply to county and city, hrn~:ever, vre realize that a regulation imrolvinP a comprehensive ~, ~-~, :.r bu:i.lding code Trill require the e*cployment of a building inspector to administer the code. ~`fe do not believe we are at this time ready for this additional public office, tut hope to have the mechanism prepared when the tame is iz~ dicated. We also will wish to recommend at that time a legal means by which unsafe and unsightly suructures may be condemned for rasing, both within the city of Aspen and Pitkin County. It is not completely clear to our group hour the enclosed resolution becomes legal. If there are public notices or if hearings tri71 be needed, our BAP will be glad to do the work necessary. Fde hope that it will be possible for the county commissioners to announce the adoption of this resolution including the ban on roadside signs at an early date. Re suggest notice in the paper to this effect and a standard written notice to the owner of every sign affected giving some reasonable time a]lozvance for its removal. Our group will be glad to undertake this operation if we have proper legal sanction. Vexg tr¢ly yours i1.,. ~.""'X hls/s ~^: v Establishment of an Aspen Regional Planning Commission In an effort to coordinate the City and County zoning and planning programs, an Aspen Regional Planning Commission was created Friday, July 16, 1954, at a joint meeting of the Board of County Commissioners of Pitkin County and the Aspen City Council. Mem- bers already named to the Pitkin County Planning Commission were to constitute the reg- ional planning commission. The group was empowered to recommend zoning regulations for the area in Pitkin County surrounding Aspen and to submit master plan information as a guide for development of this area. Adoption of a regional plan wos suggested for long needed direction and control of areas where ill-planned building and development is threatening the existing property values. The proposed plan would not be a threat to existing structures. The future other regional studies might be made for the Fryingpan and Crystal River regions. Countywide zoning was suggested to prevent unsightly roadside buildings. Members of the Regional Planning Commission, as originally appointed, were: Orest Gerbez, Chairman; Fritz Benedict, Harry Stein, Sam Caudill, Fred Glidden, aid Herbert Bayer. ~j V Minutes of the Aspen Regional Planning Commission Meeting.on August 11, 1954 Members Fred Glidden, Herbert Bayer and Fritz Benedict met for o regular meeting -~ of the Aspen Regional Planning Commission at 1:00p.m. on Thursday, August 11, 1954: Subjects discussed at this meeting included the need for a street and highway plan to provide improved traffic flow through the region, parking as a major problem within the city, the need to combine school and recreational areas, and various land use conflicts involving skiing, commercial areas, industrial areas, and the location of the Court House. -" - Secretary Minutes of the Aspen Regiona Planning Commission on January 131955 Members Harry Stein, Fred Glidden, Herbert Bayer, Sam Caudill and Fritz Benedict, and planning consultant Trafton Bean met for a regular meeting of the Aspen Regional Planning Commission at 4 p.m. on Thursday, January 13, 1955 at the Chamber of Commerce office, Aspen, Colorado. The consultant described background information which he had obtained from a review of the past four years of the local newspaper. He discussed the advantages of planning for better Iona=- tion of State Highway routes in the region, for park and street improvement programs, and to en- courage sound business development. Organizational matters, such as regular meeting times, the release of publicity, and the keeping of records and minutes were discussed. Consultant Bean was requested to keep the records of the regional planning commission meetings. Display maps and the keeping of planning records in looseleaf booklet form were discussed. Importance of following State Statutes with regard to the adoption of zoning in the. unincorporated . areas of Pitkin County was emphasized. In particular, sending a copy of zoning recommendations to the State Planning Commission, providing at least 30 days notice before a public hearing, and the need for relating zoning to a comprehensive plan were mentioned. Members of the regional ,planning commission were requested to obtain certain local basic data which might be available to them. Also, a copy of the Aspen city zoning law was to be obtained from the City Clerk. The need for an industrial zone in Pitkin County was considered. Jim Perry of the Glory Hole Motel discussed the matter of motel signs. .~' Secretary ~' ~~ ... Minutes of the Aspen Regional Planning Commission on January 27, 1955 Members Harry Stein, Fritz Benedict, Fred Glidden and Herbert Bayer, and planning consultant Trafton Bean and his associate, .Lloyd Hyden, met for a regular meeting of the Aspen Regional Planning Commission at 4p.m. on Thursday, January 27, 1955 at the Chamber of Commerce office, Aspen, Colorado. Discussion took place concerning base maps, the existing land use survey, and State Highway routing. The proposed first draft of the text for a zoning resolution for use in Pitkin County was presented to the members for their study. Following a brief introduction of the terms of this resolution, members were asked to review the content of the proposol in detail so that revisions could be made at the next regular meeting. - Discussion took place concerning a city directory sign for location on the State Highway A82 approach to Aspen in order to indicate available points of interest and accommodations within the region. ~' S cretary '~ Minutes of the Aspen Regional Planning Commission on February 10, 1955 Members Fred Glidden, Fritz Benedict, Herbert Bayer and Sam Caudill, met for a regular meeting of the Aspen Regional Planning Commission at 4 p.m. on Thursday, February 10, 1955 in the County Commissioner's room, Pitkin County Court House, Aspen, Colorado. Others present::included County Commissioners Tom Sardi and Clarence G2uam; County As- sessor Warren Conner; County Surveyor "Buch" Buchanan; and, planning consultants Trafton Bean and Lloyd Hyden. Principal discussion of this meeting involved the proposed Riverside Subdivision, the proposed Castle Creek Subdivision, and the Bealmear Subdivision. Persons present agreed that subdivision regulations were needed and}hat subdivisions now pending in the region should be cca'efully re- viewed. ~" ecretary Q `~ Minutes of the Aspen Regional Planning Commission on February 11, 1955 Members Fred Glidden, Fritz Benedict and Sam Caudill, and planning consultants Trafton Beon and Lloyd Hyden met for a regular meeting of the Aspen Regional- Planning Commission at 3p.m. on Friday, February 11, 1955 in the County Commissioner's room, Pitkin County Court House, Aspen, Colorado. The consultant described the completion of a new County base mop and presented a preliminary draft of the proposed County zoning map for the Aspen region. He mentioned that aerials of the Aspen region hod been ordered and explained that USGS maps of the area were quite old A large scale base map of the City of Aspen and its immediate environs was to be started. Also, an existing land use survey of the entire area was described as being undertaken. Major sections of the proposed zoning text were discussed in detail. Persons present also considered the need for a City ordinance regulating trailer camps. Further discussion also took place concerning the Castle Creek subdivision, the Riverside subdivision, the Bealmear subdivision and a proposed subdivision in the Mills ores west of the City. ~ ~~„_- Secretary Minutes of the Aspen Regional Planning Commission on February 18955 Members Fred Glidden, Herbert Bayer, Orest Gerbez and Sam Caudill met for a regular meeting of. the Aspen Regional Planning Commission on Friday, February 18, 1955 i'n the County Commis- sioners room, Pitkin County Court House, Aspen, Colorado. Others present included County Commissioners Tom Sardy and Clarence Quam; planning consultant Trafton Bean; Clint Stewart, attorney; and, Mrs. Mills. The consultant described the completion of the base map and the existing land use survey for the region. He described his work on the basic data and preliminary plans and explained that pro- . posed subdivision regulations would be presented for further study. Members present discussed . the 3rd draft of the proposed zoning text with minor adjustments made. A suggested ordinance for regulating trailers within the city was also considered and recommended to the City Council for further processing. Members of the Board and others present discussed the proposed Mills Subdivision to be located north of State Highway No. 82 in the area between Maroon Creek and Castle Creek. After consideration of how this subdivision would be related to other community interests, the the Board approved the preliminary plat as presented showing a combination golf course and residential lot development with lots approximately 20,000 square feet in area; and, in addi- tion, the Board recommended that the subdivision be zoned as an R15 District in accordance with the 3rd Draft of the proposed Pitkin County Zoning Resolution. (motion by Glidden, second by Coudill, Vote: unanimous) In voting to approve the preliminary plat for the Mills Subdivision the Board emphasized the following: a: ~ _ 1. A sound development of this area would benefit the entire Aspen region and should be encquraged. 2. Although the general plan is approved in preliminary form and should give the developer assur- once in going ahead with more detailed studies, if subdivision design standards are later adopted by Pitkin County such standards should apply wherever possible to all subsequent final plats. In this instance, the Board believes thahsuch requirements would not conflict with overall utility and road plans now being formulated. 3. After part of the Mills area has been recorded in a final plat, the Board assumes that actual development of such area will justify additional final plats for adjoining lands prior to their presentation. / ~.ti,.~ Secretary Minutes of the Aspen Region~lanning Commission on March 10 `~5 Members Orest Gerbez, Harry Stein, Fred Glidden and Sam Caudill and planning consultant Trafton Bean met for a regular meeting of the Aspen Regional Planning Commission on Thursday, i March 10, 1955 in the County Commissioners room, Pitkin County Court House, Aspen, Colo- rado. Discussion involved details of the proposed third draft of the Pitkin County zoning text and the recommended zoning maps for the Aspen region. After further discussion, the amended third draft and proposed zoning maps for the Aspen area were approved, certified, and recommended to the Board of County Commissioners for their adoption. Members discussed having ten copies of the proposed zoning text and maps available in the office of the Pitkin County Clerk. Ten copies of the proposed zoniriq Xext and maps were also to be left in the office of the Aspen Chamber of Commerce for distribution to members of the regional planning commission who • ~ '~ were not present at the meeting and for general public use. !. • ~ ~;, LR+-_. • Secretary • PUBLIC H::AP,IPIG on ~, Proposed : itl.in County, Colorac'.o, Zoning I'.esolution Hotel Jerome Aspen, Colorado April lE, 1955 At a special meeting held at 10:00 G, li., lionday, t?pril lE, 1955, the Board of County Commissioners of Pitkin County Colorado, met for the purpose of having a public hearing on the proposed Pitl:in County Zoning Resolution as certified by the Pitkia County ?lanning Commission on March 10, 1955. AS,~etinP. Place Due to conflict with a session of the District Courts the meeting was transferred to the Hotel Jerome after giving proper notice at the Court House. e :-tendance County Cors:.iissioners: Tom Sardy, Orest Gerbaz, Clarence A . Quam Planning Commission members: Fred Glidden, Sam Candill~ Fritz Benedict, llerbert Boyer County Officials: ;?amen Conner (Assessor), ililliam Stapleton (Clerlc~ T_:obert Delaney (Gttorney) Interested P,esidents: Gpproximately seventy other persona Introduction 6f ter official opening of the ,meeting, Traftoa Sean, planning. advisor, described the proposed zoning resolution in detail, and invited as much comment as possible. Discussion The hearing continued from 10:00 A. ZI. to 12:30 P. r,, in the first session, with a spacial adjourned session held between 1130 P. i:. and 4s30 P. 1-i. During the discussion, many comments trere made and questions asked with the principal items as follows: d .~~ pls. l.illerr .-:ant of Lspen) CeneraT rucstion on oferation cf Board of ^djustaent and its nrocednre ou abate~::ent of nuisances. (iwner of ',iillside Lode) ~,uestion of trailer carp in tot:rist district. Stated lie felt that- trailer shartZ be excluded because of damaging property values on surrounding property. (John Dererseu~^.ealtor) General question on effectiveness of penalties anstrered by Delaney on procedure used. Latter questioned lighting of rtotelr cabins, and resort identification suns in A~ I' t. T districts. Stated he felt lighting si~ould be allotred these usesr but should not include other signs, {Tits. Phillipst P.anch 10 miles N. FJ. of Aspen) 3esires to build cabins on 3 acre site in A-F District. Opposed to zoning in general hnd particularly in regard to her own property. (ir. Lotrenr owns 3.tJ acres) States he owns 3.9 acres in A-F 7istrict. 1Ie is opposed to zoning on grounds he would be tenable to sell lots under regulatiena. (lit. Swans Snowraass) Considerable discussion trith ar. Shan, First stated he~felt Snorrmass area shottlcl be excluded fron zoning. Latter discussion said that II :)istrict fro*t County Line to goody Creel: cutoff would be-satin= factory. -utter said that T ::istrict night be acceptable. F.t conclusionr it eras decided that I:r. Stran would act as spokesman and contact people in his area as to their desires and would then make recorutendations to County Planning Contaission. Flso ste~gested more objectionable 'uses be added in U District. (~3taw) General question on city limits and would zoning apply to city. (Iirs. Poindexter) She supported zoning and stated she would like to see all of hightray zoned. (Sam Howells D 30 District) '_uestinn on building fees and what he could build without obtaining a pernit. IIe was informed of $100 minimum. (i:r. ~Moom) Asked of possibility of obtaining B district in Castle Creeit.Subdivision. He eras asked to define exact aregr but stated plans trere in beginning 'stager and the exact area had not been decided on. :Ins asl-ed to write letter to commission when plans were determined. (idr. ~iomi) Stated he eras opnosed to any zoninP trithin 5 Hiles of Snotrrtass. -~_ (.ran:: Sparovic~ resort and Trailer Canp mast o: Aspen) Stated he believed that his property teas in r~ron~ district (.^.-30). First'uanted ciian~e to T District- or exclusion front regulations. :.a't-ter indicated that change to P. 15 District trould be satisfactory to hint (~llie Ilellr:tund) Stated she trould like area' along Castle Creel: r~e'st of Gth Street and fron Ili~haay E2 south 15001 changed fron T istrict to P,-15. --------------- General uiscussion indicated possible exclusion of cabins and resorts front area requireaents. (::r. :lillou~hby) Gslced for inclusion of raining as a permitted use in T,District on Aspen liountaih. (Tirs. BradshatrJ P,-30 -uisfrict) She asked for change from -30 to P.-15•for all of Iliiliams Addition and Grounds. north of hospital. General Discussion indicated that 5 acre area requirement in t•he A-F' District ryas too high and should be lomered. I!d jourul:~eut - The neeting adjourned at 4:~0 P. 1•i. -v- Minutes of the Aspen Regional Planning Commission on September 9 1955 Members Fred Glidden, Sam Caudill, Orest Gerbez, Harry Stein, Herbert Bayer and Fritz Benedict met for a regular meeting of the Aspen. Regional Planning Commission on September 29, 1955 in the County Commissioners room at the Pitkin County Court House, Aspen, Colo- rado. County Commissioner Clarence Quam, County Clerk William Stapleton, County Attor- ney Robert Delaney, County Building Inspector John Doremus, and planning consultant Trafton Bean were also present. Various amendments in the adopted Pitkin County zoning resolution,' in particular, the side and rear yard requirements, were discussed. The need for Caunty building standards was also considered. Minutes of the Aspen Regional Planning Commission on Navember 30, 1955 Members Harry Stein, Fred GI idden, Fritz Benedict and Sam Caudill met for a regular meeting of the Aspen Regional Planning Commission on November 30, 1955 in the County Commissioners room, County Court House, Aspen, Colorado. Others present included City Planning Commis- sion members Mrs. Willoughby and Mr. Ringle, City Attorney Stewart, and planning consultant Trafton Bean. Members present agreed unanimously to recommend a policy of not requiring alleys in new sub- divisions and that where alleys are to be vacated in existing areas, all abutting property owners approve of such vacation and that utility easements be provided where alleys are vacated. . ~~ Secretary Minutes of the Aspen Regional Planning Commission on December 12, 1955 Members Fred Glidden, Harry Stein, Sam Caudill and Fritz Benedict met for a regular meeting of the Aspen Regional Planning Commission on December 12, 1955 in the County Commissioners room, Pitkin County Court House, Aspen, Colorado. Mayor Robinson, City Planning Commission member Mis. Willoughby, and planning consultant Trafton Bean were also present. Members discussed City planning needs, particularly requirements for parks, the location of a State highway through Aspen, and the need for additional off-street parking area. ~~ •~ .,-_Li __~~tary