HomeMy WebLinkAboutminutes.council.20131111Regular Meeting Aspen City Council November 11, 2013
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CITIZEN PARTICIPATION .......................................................................................................... 2
PROCLAMATION – Purple Star Families .................................................................................... 2
COUNCILMEMBER COMMENTS .............................................................................................. 3
CONSENT CALENDAR ............................................................................................................... 3
Resolution #100, 2013 - Burlingame Phase 2 Change Orders ............................................ 4
Minutes - October 28, 2013 ................................................................................................. 4
ESPN Winter Concerts Wagner Park .................................................................................. 4
ORDINANCE #49, SERIES OF 2013 – Mocklin Subdivision Amendment ................................. 4
ORDINANCE #46, SERIES OF 2013 – 549 Race Alley TDRs .................................................... 5
ORDINANCE 347, SERIES OF 2013 – Supplemental Appropriation 2013 Budget .................... 6
ORDINANCE #48, SERIES OF 2013 – Fees for 2014.................................................................. 8
RESOLUTION #101, SERIES OF 2013 – Adopting 2014 Budget ............................................... 8
ORDINANCE #45, SERIES OF 2013 – Amending APCHA Guidelines to Include “Retiring in
APCHA Rental and Ownership Housing” ...................................................................................... 9
ORDINANCE #23, SEREIS OF 2013 – South Aspen Street Subdivision/PUD Amendment ..... 10
ORDINANCE #28, SERIES OF 2013 – 360 Lake Avenue (Erdman Partnership Lot Split)
Subdivision Amendment ............................................................................................................... 15
Regular Meeting Aspen City Council November 11, 2013
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Mayor Skadron called the meeting to order at 5:00 p.m. with Councilmembers Daily, Frisch,
Romero and Mullins present.
CITIZEN PARTICIPATION
1. Jan Hamilton presented each Council person with a magnet containing an = sign. Ms.
Hamilton said it is a national organization representing equal human rights for all walks of life.
Ms. Hamilton read from Aspen’s Ordinance #60, Series of 1977, prohibiting discriminatory
practices relating to employment, housing, public services and accommodations and noted Aspen
is ahead of the game in anti-discrimination.
2. Heidi Zuckerman Jacobson, Aspen Junior Hockey board, introduced Sean Hathaway, the
new hockey coach. Hathaway thanked Council for their support financially and in-kind for the
hockey program. Hathaway said they just completed the fall face off with 84 teams competing.
Hathaway said they are looking to expand to a spring hockey tournament. The 84 teams bring in
a lot of revenue to Aspen’s lodges and restaurants.
3. Andy Israel told Council he is concerned about event overload at Wagner Park, which is
closed over 100 days/year for events. There should be an understanding of economics of any use
of Wagner Park. Israel said open space should stay open. Jeff Woods, parks department, said it
is a balancing act between community interest, open space and events. Woods told Council he
will meet with Israel.
4. Liz O’Connell, canary initiative, announced that Friday, November 15, is America
Recycles Day and the city is celebrating it 10 a.m. to 2 p.m. at the Recycling Center. There will
be demonstrations on how to turn old skis and snow boards into a bench.
5. Karinjo deVore, Aspen International Mountain Foundation, reported she attended the 4th
global Mountain summit and at this meeting AIMF and Aspen was elected to the steering
committee and is responsible for North America, Central America and the Caribbean. The city
of Aspen deserves credit for supporting AIMF and for being progressive and innovators in
sustainable mountain development.
PROCLAMATION – Purple Star Families
Adam McCabe asked what communities are doing to welcome veterans back home; people who
are out doing what other people do not want to do and who are willing to sacrifice their lives.
McCabe told Council Purple Star Families is petitioning the President of the United States for
development of a viable homecoming preparedness program to help reduce fatalities among
Regular Meeting Aspen City Council November 11, 2013
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veterans and active duty military personnel and hopes to raise 1 million signatures in support of
this.
Mayor Skadron proclaimed that Council and the citizens of Aspen support the efforts of Purple
Star Veterans and Families and encourages the community to sign the petition to support this
important effort.
COUNCILMEMBER COMMENTS
1. Councilman Frisch said he attended the Veteran’s Day ceremony this afternoon. Last
week he attended a fund raising effort for local Nordic skiers, Noah Hoffman, Simi Hamilton
and Michael Ward, hoping to go to the Winter Olympics. November 22nd at the Belly Up there
will be a fund raiser for Wiley Maple, also in support of an Olympic effort.
2. Councilman Daily thanked Adam McCabe for stepping up and sponsoring the Purple Star
Families efforts.
3. Councilman Romero said the 5th grade class from Aspen Middle School attended the
Veterans Day celebration and sang some songs. It is a great lesson for school kids of service
above self.
4. Councilman Romero noted the Aspen Education Foundation held their annual fund raiser,
flamingo a go-go and raised over $400,000 to be used as direct contributions to Aspen schools.
5. Councilman Romero said last week Council met with the Next Generation prospective
board. Councilman Romero said he would like to make sure that the Next Generation advisory
board includes people from all walks of life in Aspen.
6. Mayor Skadron thanked veterans for their service and their sacrifice.
7. Mayor Skadron agreed the AEF fund raiser was a great event. Mayor Skadron thanked
the Aspen Skiing Company for opening early this upcoming weekend.
CONSENT CALENDAR
Councilwoman Mullins asked if all three Burlingame change orders are to do with solar. Jack
Wheeler, capital assets, told Council only change order 123 for $302,000 is the solar. The other
two change orders have been included in recent budget updates.
Councilwoman Mullins moved to approve the consent calendar; seconded by Councilman Frisch.
The consent calendar is:
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• Resolution #100, 2013 - Burlingame Phase 2 Change Orders
• Minutes - October 28, 2013
• ESPN Winter Concerts Wagner Park
All in favor, motion carried.
Councilman Daily left Council Chambers.
ORDINANCE #49, SERIES OF 2013 – Mocklin Subdivision Amendment
Justin Barker, community development department, told Council this subdivision is located
along Lone Pine road and is 6 single family and 1 multi-family lot. The original 1995 plat
contains a note prohibiting development other than native vegetation outside the defined building
envelopes of the 6 free market lots to protect natural landscape. The note was amended several
years later to resolve a conflict with this note and the necessity to remove some contaminated
soils located in the Smuggler Superfund site. The applicant is requesting an amendment to add
additional language to allow for temporary shoring and site drainage improvements to occur
outside the building envelopes but only during the period of construction. Barker pointed out
this falls under “other amendments” in the land use code, requiring Council approval; however,
there are no criteria for “other amendments” and the only stipulation is that Council must
determine the amendment is consistent with the approved plat.
Councilman Mullins asked why if it was important to not compromise the native landscape
originally that has changed. Barker said the amendment allows for the property owners to
comply with city drainage regulations and to allow for different construction than originally
anticipated. The building envelopes stay the same and the landscape will be protected.
Councilman Romero moved to read Ordinance #49, Series of 2013; seconded by Councilman
Frisch. All in favor, motion carried.
ORDINANCE NO. 49
(Series of 2013)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING THE SUBDIVISION PLAT FOR THE PROPERTIES COMMONLY
KNOWN AS 115, 125, 145, 155 AND 165 MINERS TRAIL ROAD AND LEGALLY
DESCRIBED AS LOTS 1, 2, 3, 4, 5 AND 6, MOCKLIN SUBDIVISION, ACCORDING
TO THE PLAT THEREOF, RECORDED JUNE 14, 1996 IN PLAT BOOK 39 AT PAGE
92, AND FIRST AMENDMENT TO THE FINAL PLAT OF MOCKLIN SUBDIVISION
RECORDED AUGUST 4, 1998 IN PLAT BOOK 45 AT PAGE 59.
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Councilman Romero moved to adopt Ordinance #49, Series of 2013, on first reading; seconded
by Councilman Frisch. Roll call vote; Councilmembers Mullins, yes; Frisch, yes; Romero, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #46, SERIES OF 2013 – 549 Race Alley TDRs
Mayor Skadron recused himself.
Amy Simon, community development department, told Council this ordinance creates 3
transferable development rights. This is a historic landmark property in the center of Fox
Crossing subdivision and is one of the most unaltered miner’s cottages; it has not been lived in
for more than 50 years and is deteriorated. The new owner is going through HPC for a remodel
and addition and restoration. The owner would like to leave 750 square feet of allowed floor
area unused and turn it into 3 TDRs. Ms. Simon told Council the criteria are met.
Councilwoman Mullins asked if this has completed HPC. Ms. Simon said it was continued to a
HPC meeting this week and HPC has not made a final decision. This will need to be
accomplished before second reading of this ordinance. Councilwoman Mullins said the
applicants are asking for 3 TDRs for 750 square feet as well as a 500 square foot bonus.
Councilwoman Mullins said it appears that the 500 square foot bonus is being turned into a TDR
rather than just taking allowable square footage off the site.
Ms. Simon pointed out when the TDR program was created, staff wanted to make sure possible
benefits were not being taken away; it would not be a great incentives to create TDRs and then
be told they did not qualify for the floor area bonus. This applicant is using the bonus as part of
the developed project and selling floor area that is part of the base allowable and is diminishing
what could have been built on the site by 750 square feet. Any applicant has to earn the floor
area bonus with HPC. The maximum allowable FAR on this site is 2722 square feet and the
applicant is proposing to build 2522 square feet. Granting TDRs is solely Council discretion;
HPC looks at the proposal for development. Ms. Simon told Council there is an 800 square foot
building on site that is proposed to be 2522 square feet. Councilwoman Mullins requested the
maximum allowable and the square footage for second reading.
Councilman Romero asked about the sequencing and putting this first reading before HPC’s
decision. Ms. Simon told Council this will not come back for second reading until HPC has
approved the development plan. Karen Woods, representing the applicant, said this sequence
was not planned; the HPC meeting was continued. Mayor Pro Tem Frisch agreed Council does
not want to set a precedent for this sequencing. Jim True, city attorney, said this has happened
that first reading takes place before a board recommendation to Council; the applicant is at risk
in this situation.
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Councilman Romero moved to read Ordinance #46, Series of 2013; seconded by Councilwoman
Mullins. All in favor, motion carried.
ORDINANCE #46
(Series of 2013)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
APPROVING THREE TRANSFERABLE DEVELOPMENT RIGHTS FOR THE PROPERTY
LOCATED AT 549 RACE ALLEY, LOT 5, FOX CROSSING SUBDIVISION, CITY AND
TOWNSITE OF ASPEN, COLORADO
Councilman Romero moved to adopt Ordinance #46, Series of 2013, on first reading; seconded
by Councilwoman Mullins. Roll call vote; Councilmembers Romero, yes; Mullins, yes; Mayor
Pro Tem Frisch, yes. Motion carried.
Mayor Skadron returned to Council.
ORDINANCE 347, SERIES OF 2013 – Supplemental Appropriation 2013 Budget
Pete Strecker, finance department, told Council this ordinance contains $2.8 million in new
requests, most of which Council has seen. Councilman Frisch asked about the retirement
payouts in several departments. Strecker said when someone retires, they are paid for any
accrued vacation, sick or other time and that amount cannot be absorbed in department’s existing
budgets. Councilman Frisch asked about the appropriation of $50,000 for the change in scope of
the Rio Grande project. Stephen Ellsperman, parks department, told Council these changes are
opportunities and new technologies that came after the design was finished. These items were
looked at by staff who determined they would be beneficial to the project.
Councilman Frisch asked about the $800,000 in the electric utility fund increase. Dave
Hornbacher, utility department, reminded Council the city has a high renewable energy content
portfolio and items like hydropower generate electricity at a lesser rate than purchased through
fossil fuels. Two years of drought caused reservoir levels to drop resulting in a lesser production
from renewable sources and the city had to buy higher costs of fuels. Hornbacher noted the
city’s wholesale provider, MEAN, increased their rates and the city had to buy more energy at
that higher rate. Lee Ledesma, utility department, said the city relies on hydroelectric power at 2
cents/kWh and the city had to buy 6.4 million kWh of coal at 6.9/kWh totaling $450,000. Some
revenues will be returned because the customers are using more than average. The city is
somewhat insulated from these increased charges by the renewable energy mix. Hornbacher said
the contract with MEAN is a member-owned style, which means all members take the advantage
as well as the risk determined by the overall energy wholesale market.
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Councilman Frisch brought up the renewable energy fund request for $40,000 for a design study
on the costs to finish a piping component which would be used by the hydropower plant as well
as other aspects. Hornbacher told Council the $40,000 would be to complete the design and to
do some preliminary planning work necessary to get a bid to construct the remaining part of the
drain line from Thomas reservoir in order to get a detailed cost estimate to bring that project to
Council. Hornbacher said they hope to have a packet ready for bid in April 2014, which will
need Council approval. The earliest construction would be fall 2014. Hornbacher said staff is
looking at the condition of the bridge crossing Castle Creek at Power Plant road and if the bridge
needs to be replaced, those two projects would be coordinated. Ms. Ledesma said another piece
of this is the second feed on the electric system. The city is currently paying Holy Cross
transmission fees of $30,000. Once Burlingame and the water campus are part of the loop, the
city will be saving $50,000/year in transmission fees.
Councilman Romero asked if the drain line is essential for public safety. Hornbacher said it is a
necessary component for a safe evacuation route from the reservoir. Mayor Skadron asked if the
$40,000 could be categorized in a fund other than renewable energy fund. Hornbacher said it
could be in the water department fund. Mayor Skadron agreed this is a water issue, not a
hydropower issue, and it is a necessity for public safety and for the resiliency of the
infrastructure.
Councilman Romero said governmental accounting insures appropriations catch up and projects
get appropriately funded as well as technical adjustments to be made. Councilman Romero said
he would like to see a level of performance statistics or year over year performance. Councilman
Romero asked if management looks at supplemental appropriation for management performance
or organizational performance or for future improvements. Steve Barwick, city manager, told
Council staff will review this at second reading. Councilman Romero asked for an account of
litigation expenditures from 2007 to today, cases live or settled, put in the context of what the
community can expect from year to year.
Councilman Romero moved to read Ordinance #47, Series of 2013; seconded by Councilman
Frisch. All in favor, motion carried.
ORDINANCE NO.47
(Series of 2013)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET MANAGEMENT
PLAN FUND EXPENDITURES OF $322,030, AN INCREASE IN THE GENERAL FUND
OF $436,530 AN INCREASE IN THE PARKS AND OPEN SPACE FUND OF $164,240, AN
INCREASE IN THE TRANSPORTATION FUND OF $151,100, AN INCREASE IN THE
HOUSING DEVELOPMENT FUND OF $535,000, AN INCREASE IN THE KIDS FIRST
FUND OF $97,000, AN INCREASE IN THE WATER FUND OF $555,920, AN INCREASE
IN THE ELECTRIC FUND OF $820,000, AN INCREASE IN THE RENEWABLE ENERGY
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FUND OF $40,000, AN INCREASE IN THE PARKING FUND OF $42,920, AN INCREASE
IN THE SMUGGLER HOUSING FUND OF $2,000.
Councilwoman Mullins moved to adopt Ordinance #47, Series of 2013, on first reading;
seconded by Councilman Frisch. Roll call vote; Councilmembers Frisch, yes; Mullins, yes;
Romero, yes; Mayor Skadron, yes. Motion carried.
ORDINANCE #48, SERIES OF 2013 – Fees for 2014
Councilman Frisch noted plan check fees are a percentage of the value of the project and asked
why these are not just straight hourly fees. Chris Bendon, community development department,
said the complexity of a review is tied to the cost of a project and staff has found hourly billing
can be a headache, staff tends not to fully account for their time. Councilman Frisch suggested
one system for all community development department billing. Bendon said for applicants
knowing what the planning fee will be is helpful in projecting their budgets. The building and
planning fees are flat carried forward from 2013. Councilwoman Mullins said the fact many fees
stayed the same or had moderate increases is a credit to the city and management of costs of
programs. Councilwoman Mullins requested for second reading a summary of the trends of fees,
increases, percentage, so the public can be aware of how the city is managing costs.
Councilman Romero moved to read Ordinance #48, Series of 2013; seconded by Councilwoman
Mullins. All in favor, motion carried.
ORDINANCE NO. 48
Series of 2013
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING THE MUNICIPAL CODE OF THE CITY OF ASPEN TO ADJUST CERTAIN
MUNICIPAL FEES
Councilman Romero moved to adopt Ordinance #48, Series of 2013, on first reading; seconded
by Councilwoman Mullins. Roll call vote; Councilmembers Romero, yes; Frisch, yes; Mullins,
yes; Mayor Skadron, yes. Motion carried.
RESOLUTION #101, SERIES OF 2013 – Adopting 2014 Budget
Pete Strecker, finance department, told Council this resolution adopts a $85.8 million budget for
2014 of net appropriations which is a 4.6% decrease compared to the originally adopted 2013
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budget. Strecker said this budget is a balance between meeting increased customer demands and
being cautious with sales tax and other revenues.
Mayor Skadron opened the public hearing. There were no comments. Mayor Skadron closed
the public hearing.
Councilman Romero moved to approve Resolution #101, Series of 2013, adopting the 2014
budget; seconded by Councilman Frisch. All in favor, motion carried.
ORDINANCE #45, SERIES OF 2013 – Amending APCHA Guidelines to Include “Retiring in
APCHA Rental and Ownership Housing”
Tom McCabe, housing department, told Council this adds two sections to the housing guidelines,
one to cover rental housing and one to cover ownership housing as well as expanding the
definition section of the guidelines. McCabe noted there is no section in the guidelines spelling
out the rules around retirement. McCabe said people are required to live in their unit 9
months/year, work 1500 hours and not own any other developed property and based on the social
security’s definition of 100% retirement benefits, one can retire in affordable housing at age 65
to 67 depending on when one was born. McCabe pointed out this is not tied to the social security
retirement scale. McCabe pointed out anyone in transition who would have qualified before this
ordinance goes into effect will be grandfathered.
Jim True, city attorney, noted the definition of qualified retiree is one who has reached the age of
67, yet this is adopting a sliding scale. McCabe said the guidelines will read a person who has
reached the age as defined in the guidelines and has worked the prerequisite amount of hours,
this will be corrected. Councilman Frisch said he would prefer a retiree to have worked 10 years
rather than 4.
McCabe said staff hopes with these changes to make it clear the retirement age be up to 67 if in
APCHA housing. McCabe said the definition of APCHA senior includes that one is allowed to
have up to 150% of the net assets allowed at the top of their normal category that one is not
reclassified for saving money and having higher assets. Mayor Skadron questioned the use of
“normal” to describe one’s category, which seems to be a vague term. True said applicable
income/asset category would be clearer.
Mayor Skadron opened the public hearing.
Marcia Goshorn said these changes standardize the retirement age. Ms. Goshorn noted there are
deed restrictions the address at what age a unit owner can retire. These guidelines changes will
not affect the master deed restrictions.
Mayor Skadron closed the public hearing.
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Councilwoman Mullins noted the definition for APCHA senior refers to one who is 65 or older
and the definition of retiree refers to 67, and the full retirement age chart which makes this
unclear. Councilwoman Mullins said she would like it all tied to together and suggested the
ordinance be continued for these re-writes.
Councilman Romero moved to continue Ordinance #45, Series of 2013, to November 18;
seconded by Daily. All in favor, motion carried.
ORDINANCE #23, SEREIS OF 2013 – South Aspen Street Subdivision/PUD Amendment
Jennifer Phelan, community development department, told Council this property is 2.3 acres on 3
lots at the base of Aspen mountain, south of town. This property received an approval in 2003
for 14 free market townhomes and 17 affordable housing units housing 46 employees in 4
buildings. Ms. Phelan said this amendment was submitted in 2011 and there have been several
iterations since then. The current proposal contains 31 multifamily units, 14 free market units
and 17 affordable housing on site. The density is the same, the difference is the number of
employees housed on site because of different unit configuration. The proposal houses 34.25
employees with the ability to add another unit to increase FTEs on the site. There will be 11.75
FTEs housed off site with either actual units east of the S-curves or affordable housing credits.
Council will need to amend the growth management for affordable housing and multi-family
replacement, amend the subdivision approval, approve merging lots 2 and 3 into one lot, vacate
an easement on that lot, and amend the PUD. Ms. Phelan said staff has been working with the
applicants to balance the livability of the affordable housing units with density on site. Ms.
Phelan showed the 2003 approval site plan, pointing out the affordable housing buildings and the
free market residences; showed the 2011 proposal to amend the approval 2003 proposal and
showed the 2013 proposal. Ms. Phelan showed the affordable housing on the two parcels and
one building on the upper parcel was removed.
Ms. Phelan noted parcel 1 has 15 units, building 1 with 12 units and building 2 has 3 affordable
housing units and there will be a duplex on the upper parcel with 2 three-bedroom units. Ms.
Phelan said the conversation with the applicants has been how to make the affordable housing
units more livable. All 17 affordable housing units are larger than the required minimum. Both
buildings in the lower parcel will be accessible by elevator; each unit has one off street parking
space; all units have additional storage in excess of what is in the individual units. Ms. Phelan
showed an elevation of the affordable housing buildings which previously contained a subgrade
floor of housing. The applicants have put the mechanical and storage subgrade and provided
better experience for the affordable housing units. The applicants looked at roof top access for
the building; however, that would require a stairwell and an elevator overrun which added a story
of height to that building. Most of the units have private decks or patios adding some outdoor
Regular Meeting Aspen City Council November 11, 2013
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living space to the units. Ms. Phelan noted two of the affordable housing buildings will need
height variance, one for 2’ and the other a 10’ height variance.
Ms. Phelan showed the 2011 proposal and outlined the easement that will be removed, a drive
that will be removed, removed curb cuts, and where some buildings are rotated to have better
orientation with the street. There are 47 parking spaces underground. Ms. Phelan noted all free
market buildings will be within the height limit of 28’. The free market units will remain within
the floor area from 2003. Ms. Phelan showed the triplexes with 3 units each going up South
Aspen street; the architecture is more modern. There are street facing doorways with porch
elements that are within the design guidelines. This proposal exceeds the number of bedrooms
and square feet required by the demolition of the Mine Dumps apartments; the affordable
housing units were reviewed by the housing staff and recommended for approval and the rental
units will be category 2 to 4. Ms. Phelan said the growth management standards for the
amendment are met.
Ms. Phelan pointed out this application proposes merging the two upper lots. In the 2003
approval there was access through a vacated alley. Staff is okay with the vacation of the
easement and recommends the lots be permitted to merge. The ordinance requires the
application meet infrastructure improvements required by city staff.
Ms. Phelan told Council the PUD standards require the development promote the community
plan and insures a more desirable development plan is achieved. Staff supports the latest
iteration as the density is not reduced, the site plan is more reflective of the traditional street grid,
the affordable housing units are more livable for a better balance of density and livability, and it
is an improvement to the previous application. Ms. Phelan pointed out there is an approved
vested project for this site, vested until 2015. The issue is whether the 2013 site plan better than
the previous site plan. Staff believes this site plan is better with more livable employee units
with the same number of employees housing as proposed in 2003, some off site or by affordable
housing credits. Ms. Phelan told Council staff and the applicant looked at an additional floor of
housing on one of the building; after looking at it, staff agreed they do not support the additional
floor because of the elevator required. The removal of subgrade level of housing softened the
grade to that building. Ms. Phelan said the street is 50’ and the neighborhood is concerned about
the loss of on-street parking if this is kept as a two-way street. Engineering staff has looked at
making this a one-way street which would retain some on-street parking. Staff recommends
approval of this site plan with conditions.
Chris Bendon, community development department, reminded Council at the last hearing on this
issue, Council requested staff and the applicant come back on the same page and in this proposal,
they are. Bendon noted the applicant has been responsive to staff’s requests. Bendon said staff
feels this is an improved project and is better than the vested project.
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Councilman Romero asked about comparing the projects and how they fit into the
PUD/subdivision criteria. Ms. Phelan said looking at the removal of the 4th building, it was
pushed up against Shadow mountain and had no street presence and staff felt it was density for
density sake and would not be a great living environment. The neighbors indicated a preference
for more family oriented units. Bendon said that 4th building required a curb cut on Juan street
which disconnected the residents from the street. Bendon said this is a good site for affordable
housing and that use should be optimized while providing high quality units, which necessitated
some reduction in density. Bendon said the remaining density to be provided should be east of
the roundabout, which is a benefit when removing some density from this site.
Councilman Romero asked if, in trying to improve livability, staff looked at the effects of this
project on adjacent property owners. Bendon noted during Council review, staff heard both
“push density” and that quality – open space and breathability - is the biggest issue. Bendon said
Council has to look at staff’s recommendation and also take into account public comments. Ms.
Phelan said with this design, there is a 16’ separation between Juan street affordable housing and
the proposed units. The Juan street units have a bay window that goes into that 16’.
Councilwoman Mullins asked about public comment on the impacts on Juan street residents.
Ms. Phelan said the discussion was about maintaining on street parking, which could be
impactful to the residents. Two-way traffic eliminates all on street parking; one-way traffic
would retain some on street parking.
Councilman Frisch said moving some affordable housing off site makes for a more livable
project as long as the offsite housing is in town. Ms. Phelan showed Council the approved 2003
site plan and the vacated alleyway and a condition of approval was that the utility department
would have the easement for any future utilities. The new site plan is not conducive to have that
easement in that location; the easement is smaller and there is no access. The land on the west is
conservation so there is no concern about future development and the utility department is okay
with removing the easement. Mayor Skadron noted vacating an easement translates to filling in
open space. Ms. Phelan said the alley could be filled in. The only easement was for utilities.
Mayor Skadron opened the public hearing.
Derek Johnson, Juan Street affordable housing, reminded Council the adjacent homeowners have
been working on this project for the last 12 years to try and preserve their quality of life and for
the new residents. Johnson said this proposal is not the best; in previous proposals, consideration
to preserving the side yard between the two properties has been part of the application for
livability of both Juan street and the new affordable housing units. Johnson noted there is 27 to
30’ between the two properties; this proposal has 8’ between the two properties. Johnson said
moving building 3 affordable housing units off site would be good for both properties. Johnson
reminded Council this is a mine dump area and every precaution should be made when the dirt is
being removed.
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Kirsten Morgan, Juan Street affordable housing, said the way this proposal looks, Juan Street
will lose most or all of their yards. Ms. Morgan said these yards are used every day of the year
with sandbox and vegetable garden and play areas for the children. Ms. Morgan said they will
lose their view, sunshine, privacy and some safety and they will like to keep this open space.
Denis Murray, Trainor’s Landing, said the objection seems to be the proximity to Juan Street
housing and if that one building were removed, it would alleviate that objection. Murray said
this is the least presentation on a design option since this originated. Murray noted Council’s
decision is which of the proposals is the better one. Murray agreed eliminating one building next
to Juan street would be a good start. Murray said the one-way street may work but whichever
direction it is going, every car will go by Trainor’s Landing. Murray said this is an important
decision to the entire community, not just the adjacent residents. Murray said the proposed
project, after 10 years, should be much better than the original project. The new proposal
includes a 47 car parking lot with unknown amount of traffic and unknown how the traffic will
flow. Murray said the latest proposal needs to be better than what is proposed.
Ziska Childs noted this corner of Aspen is still a neighborhood and it would be a loss to not have
this little bit of community.
Mayor Skadron closed the public hearing.
Councilman Frisch said he feels Juan street affordable housing units will be better off if the
building #3 could be moved offsite as long as it is within the roundabout. Councilman Frisch
said he feels this is better than that approved in 2003. Councilwoman Mullins said density is
both people on site and square footage on site and she favors more square footage on site similar
to other developments in the area. Councilwoman Mullins asked the developer why this
proposal is better than the one approved in 2003. David Parker, representing the applicants, said
the previous approval has a solid wall of townhomes; this proposal has separations for views
through. The street has been opened up. Previously, a large excavation was planned for the
most toxic part of this site and that excavation has been moved to a better location. The retaining
wall was right up against another building. The proposed building on the west of the site was
sandwiched between open space and asphalt parking lot.
Stephen Holly, representing the applicants, said between the two proposals, there are many bad
planning aspects about the original proposal, especially the inability to address Juan street; the
retaining walls were benched off on the upper lots resulting in no street presence, just a wall.
The building on the west is an island with no front, side or back yard. The parking in the
previous proposal goes all the way through the project. In the earlier proposal, not all units are
accessible and in this proposal, all units but one are accessible. Holly pointed out the
townhouses in this proposal address the street in a better way.
Councilwoman Mullins said she feels the 2003 plan is more fitting with the area, bringing the
facades to Aspen street and respecting the alley, the grid of the city and across the street,
Regular Meeting Aspen City Council November 11, 2013
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circulation across the back of the units. Councilwoman Mullins said the proximity of affordable
housing to Juan street in both plans is a problem. Councilwoman Mullins said she does not feel
the new proposed plan solved a lot of the problems. Mayor Skadron concurred about the
livability aspects on the Juan street residents.
Bendon noted building 3 could be amended to provide additional setback or to remove one unit
and make the building a single family building. Bendon said this is an appropriate location for
affordable housing so the building should not be removed altogether. Bendon reiterated
affordable housing brings life to the streets. Bendon said the neighborhood contains Juan street,
Trainor’s Landing and these proposed buildings. Staff supports more family-oriented units and
would support reducing the size of the building.
Councilman Romero noted the subdivision and PUD criteria state optimizing density and
livability should not be at the direct expense of some other neighborhood and he will support this
project only if building 3 is removed and relocated east of the S-curves or using some affordable
housing credits or reducing it to a single family building. Councilman Romero stated this project
is better than that approved in 2003. The negative is adding density just to have density and
impacting neighbors. Councilwoman Mullins stated she would prefer a design that is driven by
the urban fabric around the site. Councilwoman Mullins said on the 2013 proposal, circulation
is driving the design. Holly noted the amount of surface dedicated to driveways in the 2013
design is less than the 2003 project. Councilwoman Mullins said this is an important site and
whatever is built there should be extraordinary.
Bendon said the staff realizes this property will be developed; the community and applicant
pursued a lodge on site, and tried several times to get a lodge development there. Bendon said
the purpose of the original application was to garner an entitled project for this site, which was
approvable and buildable. Bendon said that original project was probably not proposed as the
project that would be built and may not have had a lot of thought put into it. Bendon told
Council they could approve the 2013 iteration, amending building 3 to be a single family unit
with a smaller footprint, or to remove building 3 from the site. Bendon stated staff prefers
building 3 with two units; if not that, building 3 as a single family. Mayor Skadron if building 3
a were single family, asked how much space would be between that on Juan street. Parker said
probably an additional 8’ would be gained. Councilman Romero said he would prefer building 3
be eliminated; however, as a compromise a single family building would give some architectural
and site planning flexibility and honor the community. Councilman Frisch concurred.
Councilwoman Mullins said the design and site planning does not rise to excellence for this
important site. Councilwoman Mullins said the site design seems to be a disconnect from the
adjacent projects. Mayor Skadron said this proposal is better than that of 2003. Ms. Phelan told
Council if adopted, the ordinance will be changed to require a single family unit for building 3,
three or four bedrooms, the number of offsite units will need to be adjusted, the ordinance will
clarify that guest parking spaces can be used by any affordable units, clarification on if the
Regular Meeting Aspen City Council November 11, 2013
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applicant builds units and they are over the required mitigation, that they can use those units as
affordable housing credits, there will be no fence between Juan street and building 3.
Councilman Romero moved to adopt Ordinance #23, Series of 2013, with the amendments
above; seconded by Councilman Frisch. Roll call vote; Frisch, yes; Mullins, no; Romero, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #28, SERIES OF 2013 – 360 Lake Avenue (Erdman Partnership Lot Split)
Subdivision Amendment
Sara Adams, community development department, told Council this is a request to amend the
360 Lake Avenue subdivision. This application was continued from July; the applicants request
to amend the original ordinance to allow TDR’s to land on the two lots of the Erdman
Partnership. When the subdivision was approved in 1990, specific floor area for both lots was
prescribed in the ordinance so the ordinance needs to be amended to increase that floor area and
landing TDRs. Ms. Adams told Council the applicant has been reviewing their options and
during this time, some conversations with community development staff have been discovered.
Ms. Adams noted there have been no changes to the request since last appearance.
Ms. Adams stated staff opposes the request; allowing a TDR in additional to the floor area
allowed in the 1990 ordinance results in a house that is too big for the neighborhood and 700
square feet bigger than would be permitted today and is outside the context of the R-6 zone
district. Ms. Adams told Council staff tries not to combine land use codes to create a new code
and believes allowing a TDR in addition to the prescribed floor area creates a new code and is a
way to add more floor area than is allowed in this residential area. Ms. Adams said Council can
approve the request by adopting the ordinance in the packet; Council can amend the 1990
ordinance to omit the prescribed floor area and site coverage so that the parcel is subject to the
land use code in effect at the time of application. This would have the current code apply and
which would allow landing of TDRs; however, the code would lower the allowable floor area.
Council can deny the request.
Chris LaCroix, representing the applicant, told Council at the earlier meeting, the representative
was not aware of the communications between LaCroix and community development staff
before purchasing the TDR. La Croix said this information is relevant. LaCroix told Council he
worked with staff when his client had the TDR under contract and asked that staff say it was
allowable and that the floor area for this property was the floor area proscribed by ordinance in
1990 plus 250 square feet. The client bought the TDR in reliance on that information and has
spent a year working to design a house using that TDR. LaCroix noted staff found a conflict
with the code that no one knew about at the time. LaCroix asked that Council find the applicant
Regular Meeting Aspen City Council November 11, 2013
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did everything right and relied on advice from staff. LaCroix said the floor area prescribed in the
1990 ordinance would have allowed this house without TDRs for several years after the
ordinance was adopted.
Chris Bendon, community development department, pointed out there is criteria for landing
TDRs; the first of which is that the property is not restricted by prescribed floor area, which this
property is. Bendon noted the question asked by the applicant is not clear. Bendon told Council
the applicants presented a letter for staff to sign, which staff declined to do and the applicant
should have been put on notice at that point. LaCroix said this was discussion between himself
and staff. LaCroix said the correspondence speaks for itself. Steve Wilson, representing the
applicant, said e-mail made it clear 360 Lake Avenue is a TDR receiving site and said it is not
staff’s practice to sign letters.
Jim True, city attorney, said the concept in which the applicant is asking for Council’s approval
is the doctrine of equitable estoppel, which requires a reasonable reliance on the action of the
City. True noted LaCroix was working with staff and trying to understand what could or could
not be done. The practice outlined by staff is designed to avoid the concept of equitable
estoppel. True stated when staff said it was not their practice, the applicant should have been
alerted to further investigation. Staff does not have authority to waive a code requirement; this
code requirement states a TDR cannot be landed on a site that has a prescribed floor area unless
allowed by ordinance. This 1990 ordinance does not allow it and would require an amendment
to allow a TDR; amending the ordinance is the correct procedure. True stated it is not reasonable
for the applicant to have relied on the string of e-mails, the proposed letter and the circumstances
to conclude what they asked could be accomplished. True noted Council has the discretion to
amend the ordinance; they are not required to amend the ordinance based on an equitable
estoppel claim. True stated there has been no reasonable reliance on an action of the city that
would bind Council to allow the landing of a TDR.
Councilman Romero stated he cannot find anywhere in the correspondence where the staff said
there is a problem and inconsistency with the 1990 land use approvals. Councilman Romeo said
this seems to be a set of mistakes. True said there is a difference between honest mistakes by the
city and having that mistake bind the Council to a certain outcome. Councilman Romero said
based on the evidence, it seems that the city is in the business of trying to identify mistakes made
and try to make repair. True said the issue for him is whether the city is equitably estopped
which says applicants have relied on the position of someone with appropriate authority, the
reliance was reasonable, and Council cannot change that position. True stated the statements
may have been honestly made, they may have been in error, but when the specific document that
would have given authority to reasonably rely on a position of the city was rejected, for whatever
reason, that makes it difficult for an applicant to assert they reasonably relied on positions set
forth in the e-mail string. True reiterated Council is not bound by this because reliance on the e-
mail string is not reasonable.
Regular Meeting Aspen City Council November 11, 2013
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True reminded Council the applicants are asking for 1990 Ordinance #66 specific floor area,
measured under the current code, plus 250 square feet TDR. Councilman Romero pointed out
the correspondence was with knowledgeable staff and it seems the repair would be to accept the
request. The evidence in this case would be hard to replicate in the future so this is not
precedence setting. Councilman Romero stated the city is in the business of service. True said
Council has the discretion to allow the landing of the TDR; the basis of discretion is up to
Council.
Mayor Skadron said the outcome would be a house bigger than that allowed under the 1990
ordinance and the house would be out of place with the neighborhood. Councilman Frisch said
he supports backing up staff’s comments and what they tell applicants; however, reading the last
e-mail, one can see why one would say they are ready to go. Councilman Frisch asked who was
to tell an applicant they cannot put a TDR on this parcel. Bendon noted staff has many
conversations with applicants; however, Bendon said this was not a mistake but may have been
confusion on all sides. There was not a thorough examination of the property and all its legal
restrictions by staff; this was an e-mail correspondence and there is a process for examination of
property. Bendon told Council there is a responsibility on the applicant and their team to pursue
all those things. Bendon stated applicants should ask for an official determination or for more
investigation. TDRs do not have a lot of criteria, but the first one is one cannot be landed on a
site with a prescribed floor area. Bendon said there was not enough information to make an
assumption on this issue. Bendon reiterated due diligence should be done by the applicant.
LaCroix said he offered to do that and staff said it was not necessary. LaCroix said this was a
TDR under contract and he would have done the research if so indicated.
Councilwoman Mullins stated she accepts the conclusion of the city attorney that Council is not
bound by the series of misunderstanding. Councilwoman Mullins noted there is service to an
individual and there is service to the community. Councilwoman Mullins said the land use code
creates floor areas that are appropriate for the neighborhoods. Councilwoman Mullins said the
codes cannot be mixed. Mayor Skadron stated he is not a proponent of further allowing mass in
already dense areas and allowing the TDR as well as specified maximum floor area provides too
much floor area on site. Mayor Skadron said he will support staff’s recommendation.
Councilman Romero moved to adopt Ordinance #28, Series of 2013; seconded by Councilman
Frisch.
Councilman Frisch said this is a difficult topic. Council agreed they would like to have all 5
members present. Councilman Romero withdrew his motion.
Councilman Romero moved to continue Ordinance #28, Series of 2013 to November 18;
seconded by Councilman Frisch. Councilman Romero and Frisch in favor; Councilwoman
Mullins and Mayor Skadron opposed. Motion NOT carried.
Regular Meeting Aspen City Council November 11, 2013
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Councilman Romero moved to continue Ordinance #28, Series of 2013 to November 18;
seconded by Councilman Frisch.
Councilman Frisch said he would like the full Council to vote on this and supports continuation.
Mayor Skadron said his vote is further allowing mass in a dense area is not something he favors
and the staff recommendation is the appropriate direction. Councilman Romero said owning an
honest mistake by the city is Council’s best path. Councilwoman Mullins said she feels it was
clear a TDR cannot be landed on a site that has a specified FAR. Councilman Romero pointed
out the 1990 ordinance did not come up in the correspondence with staff and the applicant. True
stated the restriction about landing a TDR is clear if the proper analysis is done. True said he
was asked whether the slope reduction would eliminate the landing of a TDR, which it would
not. Bendon agreed there is basic due diligence one can do and there are only 5 or 6 criteria for
landing a TDR on a property. Staff does not do due diligence for an applicant. Bendon said the
issue is the 250 square feet and its appropriateness on the property. Councilman Frisch said he
likes the smaller building but would be trading that for credibility of the city because of the e-
mail correspondence. Councilwoman Mullins said approving this could be setting a harmful
precedence. Mayor Skadron said Council would increase credibility by standing on principle by
not allowing mass in already dense areas.
All in favor with the exception of Mayor Skadron. Motion carried.
Councilwoman Mullins moved to adjourn at 10:20 p.m.; seconded by Councilman Romero. All
in favor, motion carried.
Kathryn Koch, City Clerk