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HomeMy WebLinkAboutminutes.council.20110110 Aspen City Council Regular Meeting January 10, 2011 ANNUAL MEETING ASPEN PUBLIC FACILITIES 2 COUNCIL MEETING 2 CITIZEN COMMENTS 2 COUNCILMEMBER COMMENTS 2 CONSENT CALENDAR 3 • Resolution #1, 2011— Posting of Public Meetings 4 • Resolution #3, 2011 — Contract Bobcat Toolcat Utility Vehicle 4 • Resolution #4, 2011— Memorandum of Understanding — Kid's First and Early Childhood Network 4 • Resolution #5, 2011- Extending Ordinance #48 Negotiation Given Institute 4 • Resolution #7, 2011 — Contract Core Switch for County Data Center 4 • Board Appointments Board of Adjustment — Mark Hesselschwerdt, Peter McClain, Jag Pagnucco; Liquor Authority — Bill Murphy, Peter Helburn; Wheeler Opera House student representative — Luke Seamens 4 • Minutes — December 6, 2010 4 RESOLUTION #2, 2011— Water Service Agreement — Buttermilk 4 ORDINANCE #1, SERIES OF 2011— Ordinance #48 Negotiations Given Institute 5 ORDINANCE #32, SERIES OF 2010 — Amending Smoking Ordinance 5 RESOLUTION #6, SERIES OF 2011— Rollover of Growth Management Allotments 6 ORDINANCE #25, SERIES OF 2010— Cortina Lodge Historic Designation 7 ORDINANCE #28, SERIES OF 2010 — Code Amendment Historic Modern 8 BOOMERANG 500 WEST HOPKINS APPEAL OF P &Z RESOLTUION 10 ORDINANCE #27, SERIES OF 2010 — Code Amendment — Calculations and Measurements 15 1 Aspen City Council Regular Meeting January 10, 2011 ANNUAL MEETING ASPEN PUBLIC FACILITIES Mick Ireland, president, called the annual meeting of the Aspen Public Facilities to order at 5:05 PM with member Johnson, Romero, Skadron, Torre, Koch and Taylor present. Don Taylor, treasurer, reminded the group that the Aspen Public Facilities was set up to facilitate financing of several projects, like the parking garage and purchasing the Isis. The entity is set up as separate from the city in order to accommodate lease purchase transactions. Taylor noted the revenues in 2010 were $594,000 from lease payments and the debt service payments were $597,000. The expenditures are annualized in equal amounts. Romero moved to approve the minutes of January 10, 2010; seconded by Torre. All in favor, motion carried. Romero moved to adjourn the public facilities authority at 5:10 PM; seconded by Johnson. All in favor, motion carried. COUNCIL MEETING CITIZEN COMMENTS 1. Emzy Veazy suggested Council consider accelerating debt payments. Veazy said there is snow on the ground and it should be taken care of. Veazy requested Council consider a sales tax holiday. COUNCILMEMBER COMMENTS 1. Mayor Ireland read a proclamation declaring January 10, 201101 to be an Epic Ski Day to honor 12" of snow and to acknowledge one of Aspen's core values, skiing. 2. Councilman Torre reminded everyone the newly elected county officials are being sworn in tomorrow at noon at the County Courthouse. 3. Councilman Romero noted he and his family had a good vacation in Aspen especially not having any city meetings. Councilman Romero said Governor Hickenlooper is being sworn in tomorrow in Denver and he will be attending. 4. Councilman Johnson reported he just returned from one of Aspen's sister cities, Chamonix, and met some elected official of Chamonix. 2 Aspen City Council Regular Meeting January 10, 2011 5. Councilman Johnson said December holiday seemed to be a strong season and hopes that the city's sales tax numbers bear that out. 6. Councilman Skadron extended get well wishes to Gabby Giffords, US representative from Tucson, who was shot over the weekend. 6. Mayor Ireland agreed Aspen seemed lively over the holiday season. 7. Mayor Ireland and Council had a minute of silence to reflect on the recent shooting in Tucson and to think about toning down rhetoric, and to think about Peter Greene and Ruthie Brown, who both gave so much to Aspen. 8. Virgil Simon thanked Council for the proclamation honoring him and his wife, which the Mayor read at the Aspen Choral Society donor dinner. Simon told Council it was an unexpected honor. Simon presented Council with CDs of the most recent Messiah performance. 9. Steve Barwick, city manager, pulled Resolution #2, 2011, agreement with Buttermilk Metro District, from the consent calendar for some updates. 10. Councilman Skadron reported last month he attended a meeting of the Climate Action Network, representatives of all Colorado communities and groups trying to address climate change and to share and circulate information. 11. Councilman Torre said the last Ruedi Water and power meeting he attended, the topic was Front Range water projections and the fact they are targeting west slope water. CONSENT CALENDAR Councilman Johnson moved to approve the consent calendar as amended; seconded by Councilman Romero. Councilman Skadron has some questions on Resolution #4, Memorandum of Understanding Kids First and Early Childhood Network. Councilman Skadron asked if monies were coming from city taxpayers. Shirley Ritter, Kids First, said no money is coming from city taxpayers; it is all outside grants and contributions. Mayor Ireland asked why there are two separate items on the Given Institute. Amy Guthrie, community development department, told Council the resolution on the consent calendar extends the time for the Ordinance #48 negotiations; the ordinance for first reading is to adopt those negotiations. The consent calendar is: 3 Aspen City Council Regular Meeting January 10, 2011 • Resolution #1, 2011 — Posting of Public Meetings • Resolution #3, 2011 — Contract Bobcat Toolcat Utility Vehicle • Resolution #4, 2011 — Memorandum of Understanding — Kid's First and Early Childhood Network • Resolution #5, 2011- Extending Ordinance #48 Negotiation Given Institute • Resolution #7, 2011 — Contract Core Switch for County Data Center • Board Appointments Board of Adjustment — Mark Hesselschwerdt, Peter McClain, Jag Pagnucco; Liquor Authority — Bill Murphy, Peter Helburn; Wheeler Opera House student representative — Luke Seamens • Minutes — December 6, 2010 All in favor, motion carried. RESOLUTION #2, 2011 Water Service Agreement — Buttermilk Dave Hornbacher, water department, reminded Council this agreement is the sale of water to the Buttermilk Metro District and is being driven by the airport expansion. Mayor Ireland asked if the proposed rates for water represent a fair cost recovery for the city. Mayor Ireland said this agreement is the last hurdle to FAA approval for the runway extension. Hilary Fletcher, Javiation, told Council there was one condition to the release of the grant funds, that a water solution would be provided. The city, county and Buttermilk Metro district signed a letter of intent in 2010 to seek a solution, which is this agreement. Ms. Fletcher said the airport fund will pay the water tap fees. The total runway project is $15.5 million. Gary Beach, Buttermilk Metro District, told Council they have been working on this since May and the Board is in favor of signing this agreement. Councilman Torre noted the city's goal is water conservation and would a bulk sale meet this goal. Mayor Ireland said the agreement preserves the city's ability to require a tiered rate structure in the event the district relinquished that requirement. Councilman Torre said he cannot support this mainly because he has questions about the necessity for the airport expansion; the utilization, the impact on the immediate area, safety concerns, and growth. Mayor Ireland said the county has taken steps to insure the airport will not serve large planes. The purpose of this runway expansion is to allow planes to take off in the summer when more runway is needed due to the heated air. This has been an issue for the airport for the last 20 years. 4 Aspen City Council Regular Meeting January 10, 2011 Councilman Romero moved to approve Resolution #2, Series of 2011; seconded by Councilman Skadron. All in favor with the exception of Councilman Torre, motion carried. ORDINANCE #1, SERIES OF 2011— Ordinance #48 Negotiations Given Institute Bart Johnson, representing the applicant, SC Acquisitions LLC, told Council they went to P &Z and HPC last week and are working and analyzing the plan to see if the applicants can address the concerns raised by those boards. Johnson said he hopes to have revised plans to the city in the next week. Councilman Romero moved to read Ordinance #1, Series of 2011; seconded by Councilman Johnson. All in favor, motion carried. Mayor Ireland said the principles under which Council will be reviewing this are to preserve the Given uses and structure, if possible; that a developer would respect the existing zoning and the environmentally sensitive area; and to preserve the heritage trees. ORDINANCE #1 Series of 2010 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING HISTORIC LANDMARK DESIGNATION, SUBDIVISION, AND ORDINANCE #48, SERIES OF 2007, NEGOTIATIONS FOR PRESERVATION OF POTENTILA HISTORIC RESOURCES FOR THE PROPERTY LOCATED AT 100 E. FRANCIS STREET, THE GIVEN INSTITUTE, CITY AND TOWNSITE OF ASPEN COLORADO Councilman Johnson moved to adopt Ordinance #1, Series of 2011, on first reading; seconded by Councilman Torre. Councilman Romero said he appreciates that the applicant is working with HPC and P &Z to try and find a balanced approach to this development and is only before Council due to timing issues. Councilman Romero said the idea of saving a building at the erosion of other community values sometimes does not make the balance. Roll call vote; Councilmembers Johnson, yes; Romero, yes; Torre, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. ORDINANCE #32, SERIES OF 2010 — Amending Smoking Ordinance 5 Aspen City Council Regular Meeting January 10, 2011 CJ Oliver, environmental health department, reminded Council this amendment of the smoking ordinance is to allow posting of city -owned outdoor property as non - smoking areas. Oliver said there are outdoor areas where smoking becomes a nuisance, like the bridge between the ARC and the school campus. Councilman Romero asked if there are other areas that may be affected by this. Oliver said right now is it only this one area and the designation will be done at the discretion of the city manager or his designee. Oliver noted the penalties are the standards ones for municipal offenses; $50 first offense; $250 second offense; up to $1000. Jim True, special counsel, requested a minor amendment so that the wording in 13.16.040(h) is consistent with (a) through (g). Mayor Ireland moved to adopt Ordinance #32, Series of 2010, on second reading as amended; seconded by Councilman Skadron. Councilman Romero said he would like a public discussion before the city designates other spaces. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Roll call vote; Councilmembers Torre, yes; Skadron, yes; Johnson, yes; Romero, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #6, SERIES OF 2011 Rollover of Growth Management Allotments Jessica Garrow, community development department, told Council if an application was made and approved, those allotments roll over. Staff recommends that none of the unused available allotments be rolled over. Ms. Garrow noted the allotments are based on a 2% /year growth rate and rolling allotment over would increase the annual growth rate. Council has not approved roll overs in the past several years. Councilman Romero moved to approve Resolution #6, Series of 2011, Roll over growth management allotments; seconded by Councilman Johnson. Councilman Skadron asked about the city's growth rate over the preceding 5 years. Ms. Garrow said over the past few years, commercial and free market residential allotments have not all been used; the Aspen Club application used up almost all the lodge allotments. Mayor Ireland noted during discussion on the AACP, it is apparent that neither the city nor the county are interested in rationing building permits; however, in a down economy, development approvals are accumulated and when the economy improves there is a rash of building. Mayor Ireland said he would prefer to see buildings in foreclosure purchased rather than building new buildings. Mayor Ireland said in the AACP, he has heard the desire for smaller, lower price lodge rooms and maybe that can be addressed by different allotments groups in the growth management. 6 Aspen City Council Regular Meeting January 10, 2011 Mayor Ireland said most of the bed base that has been lost has been in the moderate income sectors. Mayor Ireland suggested staff look at a preference for locally serving businesses in the growth management sector. Mayor Ireland said there should a limit or accountability for affordable housing to measure the growth impacts of affordable housing. Councilman Romero asked if the staff has ever considered breaking the lodge allotments into separate categories. Ms. Garrow noted the growth management code is written so that if you have smaller lodge rooms, you get a break on your housing mitigation. Mayor Ireland said it takes less staff to run lodges with smaller rooms, which makes that a natural consequence. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. All in favor, motion carried. ORDINANCE #25, SERIES OF 2010 — Cortina Lodge Historic Designation Amy Guthrie, community development department, told Council this is a voluntary landmark designation for the Cortina Lodge at 220/230 East Main street. Ms. Guthrie reminded Council when the PUD amendments were given to the Hotel Jerome, one of the conditions of approval was submittal for consideration a historic designation for the Cortina. Ms. Guthrie told Council this was built in 1950 as 2 one -story kit log cabins and added on to in the 1960's. Ms. Guthrie said staff finds this building very representative of construction common in the 1960's and of the chalet style. Ms. Guthrie said staff and HPC find that the criteria for designation have been met. The building is under renovation to upgrade. Julie Maple, representing the applicant, told Council the plastic should be off the project next week. Ms. Maple said there will be 20 pillows for Hotel Jerome employees Councilman Johnson noted this structure only scored 76 points and 75 is the minimum threshold and asked if there is anything left to preserve. Ms. Guthrie said the building has been deteriorating; the integrity is there and there have been little changes to the one -story building. Councilman Torre asked if there will be a plaque on the front of this building once the historic designation is complete. Ms. Guthrie said this is a prime place for a marker; however, there is no money for that in the community development budget. Councilman Romero suggested funding that out of the Council's contingency account. Mayor Ireland opened the public hearing. Bill Wiener said he supports designation. The criteria for this building is community character and proves that should be an element in the new historic ordinance, that buildings need to preserve that protect the character of this community. Mayor Ireland closed the public hearing. 7 Aspen City Council Regular Meeting January 10, 2011 Councilman Romero moved to adopt Ordinance #25, Series of 2010, on second reading; seconded by Councilman Skadron. Roll call vote; Councilmembers Skadron, yes; Torre, yes; Romero, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. ORDINANCE #28, SERIES OF 2010 — Code Amendment Historic Modern Amy Guthrie, community development department, pointed out the changes focus on 3 areas. The first is an Aspen Modern map. The second is a certificate drafted by the city attorney's office and to what extent the Council can be bound by this certificate. This certificate commits that Council wishes to leave the program unchanged for a certain period of time. The third relates to designation of city -owned property. The task force recommended the city set an example by designating properties owned by the city. The language has been amended to state that the city manager will initiate those designations after consulting with the tenants of the buildings. The city manager has requested that the pedestrian malls not be designated. Ms. Guthrie noted Mike Maple has raised questions about tracking TDRs and right now staff is only aware of when a TDR is created and when it is sold. Ms. Guthrie told Council some language has been added to the ordinance about tracking TDRs. Ms. Guthrie pointed out the city attorney's office provided a draft of the letter to the homeowners, which says the assurance will be in place for 10 years from the date of signing, which means this can be in place longer than 10 years. Ms. Guthrie said that was not the original intent, but it has been written that way. Mayor Ireland asked about having TDR sales recorded, which seems like a simple mechanism and has a chain of title showing ownership. Chris Bendon, community development department, told Council the TDR program was not set up that way; however, most property owners would want to record a transaction as a security. Mayor Ireland said it would be easy to amend the ordinance stating any person wanting to use a TDR must show their chain of title. Councilman Romero said there seems a fundamental benefit to a property owner who has a TDR. Councilman Romero said he is most interested in strengthening the assurance certificate to the allowable legal limits. Councilman Romero asked the difference between a certificate of assurance and a TDR. Bendon said eliminating the TDRs would be seen as a takings as one owns a specific piece of property. Mayor Ireland noted the biggest danger to TDRs is if the Council deregulates them and lets people build whatever they want. Councilman Johnson said he supports having TDRs recorded. Bendon said he does not want to get into "who owns what" issue. Bendon said he could amend the TDR section of the code to add that they shall be recorded in Pitkin County and reported to the City of Aspen. Mayor Ireland said he does not think property owners should be required to report these to the City. If the city wants to know, they can look in the records of the county clerk. 8 Aspen City Council Regular Meeting January 10, 2011 Mayor Ireland opened the public hearing. Bill Wiener asked if there are tax consequences when transferring TDRs; one owner pays less property tax and one pays more. Wiener said if properties are devalued where that money goes as far as the tax base. Yasmine dePagter reminded Council the historic preservation task force strongly recommended TDRs be tracked so that the community knows where they are going and to look at the incentives for post WWII designation. Mayor Ireland agreed if TDRs are recorded, they will be trackable. Ms. dePagter said as much assurance as possible is desirable. Ms. dePagter told Council her family's property, the Holland House, was historically designated involuntarily, which was a contentious issue for them. Ms. dePagter said she feels this ordinance is a much better process. Ms. dePagter said there were very few incentives available when the Holland House was designated. Councilman Torre asked if Ms. dePagter believes in the value of historic designation. Ms dePagter said she does but property owners should be able to come forward and there should be greater incentives to match that. The10 year assurance will give property owners comfort. Wiener asked the dates of historic preservation. Ms. Guthrie said there are no specific dates; a structure has to be addressed in one of the adopted context papers, which are about buildings built from the 1940's to the 1970's. Councilman Romero asked if there will be updates to the context papers. Ms. Guthrie said the initial idea was that staff and Council would review this every 10 years. Mayor Ireland closed the public hearing. Bendon entered an-email from Mike Maple into the record. Councilman Skadron moved to adopt Ordinance #28, Series of 2010, as amended on second reading; seconded by Councilman Romero. Councilman Torre stated he will support this as a step forward but the city is still far from having a workable program. Equitable incentives need to be devised. Councilman Torre said he feels trust will be fostered with the fact this is a voluntary program. Councilman Torre said there is work to get to an Aspen Modern Historic program and it should be a source of pride, enhancement and enrichment. Councilman Romero said he feels there is value and benefit in having a certificate of assurance. Councilman Romero said the original emergency ordinance which was involuntary designation undermined trust and the relationship between the community and its government. Councilman Romero said the voluntary program is organized in a more comprehensive and productive manner. Councilman Romero said through the task force, there was education and greater awareness. To try and gain lost trust and to accentuate that, not only is this a voluntary program 9 Aspen City Council Regular Meeting January 10, 2011 but it has a certificate of assurance. Councilman Romero agreed this will be a valuable program for the city when people feel it is distinguished to be part of the program. Councilman Skadron said he is comfortable with the voluntary program. Councilman Skadron said it is unlikely he would have supported an emergency ordinance had he understood its impact. Councilman Skadron said it will take time to see if there is enough heft in place to insure preservation of Aspen's historic aspects while respecting private property rights. Councilman Johnson said he feels this ordinance is positive for the community and is a fresh start in the area of historic preservation. Mayor Ireland agreed the city has not finished filling the tool box with all the incentives to bring people into the program. However, there is now a tool box. Mayor Ireland said this has been a learning process for the city. Mayor Ireland noted it does not cost a property owner anything to have their house listed, they can avail themselves of benefits and they can change their mind. Roll call vote; Torre, yes; Johnston, yes; Romero, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. BOOMERANG 500 WEST HOPKINS APPEAL OF P &Z RESOLTUION Chris Bendon, community development department, told Council this is an appeal of a P &Z resolution on the Boomerang. This is a proposal for development of affordable housing at 500 West Hopkins. Bendon told Council this case is scheduled in front of Council next month. This complaint is about parking. The city code allows parking to be set, waived or lowered through special review, which is a review where P &Z is the final authority. Bendon told Council parking can also be set, waived or lowered through a planned unit development review, which is a recommendation from P &Z to Council for final review. Bendon said P &Z could approve a parking plan, which Council may change. The code recognizes that issue and allows the community development director to combine reviews. Bendon quoted from 26.304.060, review of a development application by decision making bodies and a subsection which allows for combined reviews that the community development director may determine, in consultation with the applicant, that combination would eliminate or reduce duplication and insure economy of time and expense providing that all public notice is maintained and a thorough and full review of the application is achieved. Bendon pointed out exhibit B is the pre - application conference summary, which summarizes what a particular application will need to go through, what the process looks like, fees, etc. Bendon said this identifies that there may be overlapping review, that parking review by P &Z be combined with an amendment to the PUD review; that the amount of off street parking will not be subject to P &Z but will be a recommendation to Council for final action. The application for parking was combined and the memo outlined that and it was also stated in the hearing. The 10 Aspen City Council Regular Meeting January 10, 2011 staff review addressed both the special review and the PUD standards. Bendon said the public hearing standards were met. Bendon said the standards of review for the appeal are denial of due process, abuse of discretion, or exceeding jurisdiction. Council must find one of those to overturn P &Z's decision. Bendon reminded Council this is a review of the record. Bendon said staff believes P &Z did their job; the review was within their jurisdiction and they used their discretion appropriately. Staff recommends Council uphold the P &Z decision. Mayor Ireland asked if Council grants this appeal, does it give P &Z final authority on parking. Bendon said that depends on how the complaint is resolved; remanding it back to P &Z to have them handle the special review, in which case the decisions would be equal. Another choice would be to grant the appeal and resolve this issue and take the authority away from P &Z. Mayor Ireland said he would like the most expeditious way to get more input on parking before making a decision, more information like what is the typical consumptive pattern for parking for an affordable housing project; also what do free market projects in this area provide for off street parking. Mayor Ireland said he would also like to know what the neighborhood capacity for parking is and if this project is allowed, what is the impact on the neighborhood. Mayor Ireland noted exhibit 1, provided by Jody Edwards, outlines use of car- to -go, which may be cheaper for the applicant to provide. Jody Edwards presented documents that were part of the record in front of P &Z and some municipal code sections, which are appropriate for Council's consideration. Edwards said he thinks Council has final authority over this issue. Edwards cited from the land use code "applicant must meet criteria for special review for partial parking waiver as well as parking criteria for PUD ". Edwards noted in his exhibit 1 in the Boomerang application, the applicant addressed special review for parking waiver and the 3 standards one has to meet. The memorandum to P &Z of November 2, 2010, stated both the standards for PUD and for special review for parking are applicable; the memo addresses both sets of standards. Edwards said parking is a concern of the neighborhood and there was a lot of discussion about it at the November 2' P &Z meeting. That P &Z meeting was continued to December 14 Edwards noted exhibit 2 is a letter from him to P &Z for the December 14 meeting where he points out because the property is 27,000 square feet and flat, it is impossible for the project to meet one of the standards in special review waiver for parking, which is that one cannot meet the parking requirement on site because it is practically difficult or results in an undesirable development. Edwards said that is for properties with steep slopes, wetlands, avalanche hazards. Edwards said if the applicant eliminates 3 ground floor units on site, they could get on parking on site rather than on streets. Bendon said that standard allows P &Z latitude to define what they see as "undesirable result" of not providing the parking waiver. Edwards said what happened next is outlined in Mike Hoffinan's letter, "at some time between November 2 " and December 14 meeting, staff reconsidered its position and correctly decided that compliance with special review provisions of the code was not necessary". Edwards noted 11 Aspen City Council Regular Meeting January 10, 2011 in staff's memorandum for the December 14 meeting, special review criteria for off street parking was addressed. Edwards told Council at the December l4` meeting, staff told P &Z that special review for parking was not necessary because it would be reviewed under the PUD standards. Edwards noted the resolution for P &Z's December 14 meeting was drafted to address special review for parking and staff recommended the reference to special review for parking be deleted. Edwards said the issue is whether staff was correct at the beginning of the process to require special review for parking standards be considered together with the PUD standards. Edwards opined this was correct and it was a mistake for staff to change the rules in the middle of the process, which does not leave the public with a lot of confidence. Edwards told Council there was no notice prior to the hearing that a different standard would be used. Edwards stated the code requires that both standards are applied. Mayor Ireland asked if it matters that the P &Z did not apply that standard if the final decision makers, City Council, apply that standard. Edwards said it matters because the code requires P &Z to provide a recommendation to Council on each issue. Mayor Ireland asked the reason to send this back to P &Z when Council makes the final decision. Edwards said P &Z has final review authority on special review of parking and P &Z did not consider the 3 standards in special review. Mayor Ireland asked if the solution is to agree on the additional information that should be provided, have Council review it under the special review standards. Edwards told Council staff has said the special review standards for a parking review waiver are non - applicable. Councilman Romero said Edwards is making a due process argument, that there were defects procedurally. John Worcester, city attorney, said the issue is whether or not P &Z had a requirement to review the application under both criteria, PUD and special review. Councilman Romero noted that Edwards is stating there were defects in how that was handled. Worcester said one issue is that if this goes back to P &Z whether they have final authority or not. Edwards agrees that P &Z does not but that they should review it based on the special review criteria. Bendon reread the section on combined review section and told Council his interpretation is this was to avoid the prospect of duplication of approval. The section also states that all public notice is maintained and that there is a thorough and full review of the application, which was done. Mayor Ireland said Edwards is arguing that he came prepared to argue the special review standards and was deprived of an argument he could have made to P &Z. Edwards said the section states that a "thorough and full review of the application of the proposed development as otherwise required by this title is achieved ". Edwards said applications can be processed in a way to avoid a waste of time but standards of review cannot be eliminated. Edwards stated all the standards have to be applied in order to have a full review of an application. Mayor Ireland asked what someone reading the public notices would have thought. Bendon said when the general public gets a notice about development in their neighborhood they consider 12 Aspen City Council Regular Meeting January 10, 2011 whether they will like it or not and what are the impacts on them. Mayor Ireland asked if counsel for the neighbors was mislead to think he would be able to argue special review to find out that was not on the table. Edwards pointed out Hoffman argues in his letter that whenever a project includes a PUD variance, only the PUD standards apply and the special review standards do not apply. Edwards stated that section in the land use code does not state that the special review standards are not applied. Edwards requested the matter be sent back to P &Z solely for consideration for standards of review for a special review approval of a parking waiver. Bendon cited 26.515.030 in the parking chapter of the land use code, "Off street parking spaces shall be provided for each use according to the schedule below. Whenever the off street parking is subject to establishment by the adoption of a planned unit development final development plan, that review shall be pursuant to Section 26.445 ", which sends one to the PUD section, "whenever the parking requirement shall be established through a special review, the standards and procedures as set forth in section 515.440 below shall apply ". Bendon said that is a fork in the road directing an applicant to the PUD section if they are subject to a PUD. Bendon said addressing special review standards in the initial application was unnecessary. Councilman Romero said there may be a deficiency in the public notice when people got to the P &Z meeting and it was PUD review, not both. Bendon stated the notice was fair and sufficient and at most advertised for a special review that was not necessary. Bendon noted this application was already in a PUD review, which addresses parking. Councilman Romero said Council could direct this back to P &Z which would cause a time delay and aggravation. Mayor Ireland asked if staff would have been mistaken if it had told neighbors this would have special review criteria when there was no requirement. Mayor Ireland asked if there is the right to rely on the misinformed requirement. Worcester said the issue is whether or not due process was granted, which is Council's decision. Worcester said the argument can be made if someone goes into a meeting thinking they can argue A and B and have prepared for one over the other and is told at the hearing you can only argue A, it may be unfair. Worcester said 26.515.030 answers the question as to what to do when one goes to P &Z with both PUD and special review requirement; if there is a PUD involved, it is reviewed under PUD standards. Worcester said if Council refers this issue back to P &Z, this section decides how it should be reviewed. Edwards said P &Z has already done that. Mike Hoffman, representing the Boomerang, told Council due process is two things; notice and opportunity to be heard. Hoffman said the public notice listed both special review for parking and PUD review. Hoffman said the opponents had an opportunity to make their PUD arguments at the P &Z meeting. Hoffman said according to the code, special review for parking does not apply and staff made that decision prior to the December 14 P &Z meeting. Hoffman said he feels staff has the right to change their mind as long as the proper standard was noticed and there 13 Aspen City Council Regular Meeting January 10, 2011 was an opportunity to be heard on the correct standards. Mayor Ireland said the issue is whether Edwards wants to go back and argue the PUD standards in front of P &Z. Bendon reiterated that due process was served. The application was noticed as required a PUD review and a special review. Staff made a mistake and this did not require special review and still required a PUD review. At P &Z, the PUD standards were reviewed and P &Z made a decision on those. P &Z did their job according to the notice and within their jurisdiction. Edwards stated he was given a short time and focused on special review standards, which he thought were applicable. Mayor Ireland said if this is remanded to P &Z only on the issue of PUD parking standards, this should not be an imposition. Mayor Ireland suggested Council direct staff to take this back to P &Z as a 30 minute item solely on this issue as soon as possible and then it will come to Council in a regular course. Edwards disagreed that 515.030 is a fork in the road and P &Z does not have the obligation to look at the special review standards for parking waiver. Hoffman said they do not object to sending this back to P &Z with the caveat there is no additional public comment except on parking. Worcester said the basis for referring this back to P &Z is that Council believes there is a violation of due process in that people did not comment on the correct criteria. Hoffman told Council the public had the opportunity to address anything within the purview of what noticed, including PUD. Councilman Romero asked why Edwards does not agree that 26.525.030 is a fork in the road. Edwards said section 304.060(b)(1) requires a full and thorough review not that staff gets to pick which standards get eliminated. Bendon said PUD is a broader review where the city is looking as many different aspects of a development proposal, height, density, site plan as well as parking. A special review for parking focuses solely on parking. Councilman Skadron asked if a member of the public was prepared to make arguments under the PUD standards, were they not also prepared for special review because of the broad standards of the PUD. Steve Goldenberg said he attended both meetings and the things that surprised everyone, including P &Z, was that the change came at the last minute. Mayor Ireland asked if this could be scheduled in front of P &Z for an hour and have public comment limited only to parking, not other aspects of the project, and keep the project on schedule in front of Council. Mayor Ireland moved to direct that P &Z to consider the parking issue solely on the PUD standards and only the parking issue, within 30 days, both parties to submit their arguments in writing to the P &Z at least 10 days prior to the meeting and each parties be given 10 minutes to present their arguments and P &Z take public comments solely on the issue of parking on PUD standards ; seconded by Councilman Romero. Councilman Torre suggested the city granting a fee waiver to cover costs of the applicant for this additional meeting. Councilman Skadron asked if counsel for the city was at the meeting. 14 Aspen City Council Regular Meeting January 10, 2011 Bendon said yes. Councilman Skadron stated he does not support the motion, agrees with staff and that proper standards were noticed and that due process was afforded the public. All in favor, with the exception of Councilman Skadron. Motion carried. Councilman Romero said he appreciates the staff efforts to stay on schedule with this development ORDINANCE #27, SERIES OF 2010 — Code Amendment — Calculations and Measurements Chris Bendon, community development department, told Council this chapter defines methods for measuring buildings for compliance with the zoning regulations, floor area, heights, and setback and how these are defined. Bendon said this section of the code has not been amended and needed more clarity for staff and for applicants. Since first reading, there have been some changes. One is the amount of slope reduction; a property's development rights will be reduced by steep slopes and that reduction has been capped at 25 %. P &Z recommended removing that cap and that floor area could be reduced to 1,000 square feet. Council questioned that at first reading and staff amended the ordinance to stay with the 25% cap. Bendon noted another issue is the use of space above a linking element. Under residential design standards, a development is required to split the massing of a structure into two pieces — a house and a garage. Those pieces can be connected through a limited connecting piece, a linking element, which is restricted to one -story in height. Bendon said the code does not allow any use of the linking element without receiving a variance. Bendon told Council staff does not have a concern about how the space is used except when it starts to look like a second story, which negates the requirements for separation of mass. This code amendment will allow use of that space as a deck without any walls and as long as the railing is 50% transparent to maintain the look of a one -story element with a limited use. Bendon reminded Council there was a question about the director's latitude on exemptions from this code relating to energy efficiency or code compliance. Bendon added language that allows the community development director to provide exceptions from the dimensional restrictions of the code for energy efficiency or production systems and secondly for building code compliance. Bendon said these would be minimal exceptions where the code may get in the way of a well reasoned decision. This requires the director to provide notice to neighbors and that the director find the visual impact of the exemption is minimal and there is no other way to achieve the energy efficiency. Bendon noted lot area is what is used to define a property's development rights and one works with staff to come to a property's net area. The existing code reduces lot area for certain 15 Aspen City Council Regular Meeting January 10, 2011 physical attributes of a property to get to net area. A property's lot area is reduced for "that area within a vacated right -of -way or within an existing or proposed dedicated right -of -way or surface easement ". Bendon said lot area is not reduced for land that is dedicated to the City of Aspen for the public trail system, irrigation ditch, and land subject to above ground surface easements that do not coincide with the road easement. Bendon said when there is a road, both floor area and density are reduced. Bendon said this amendment contains a table which identifies things that count in lot area for the purposes of floor area and for the purposes of density, this still deducts areas reserved for dedicated right -of -way, proposed for dedication, or vacated public or private rights -of -way. Bendon said this language was added "areas within a private vehicular right -of- way or easement when all affected parcels have established alternate physical and legal means of access in a public way that area will count back into the net lot area ". Bendon said if one plats a road to access a parcel because the parcel has no other access and you find other legal means to get to that parcel, you get the other right -of -way back. Bendon said the amended provision is more generous because a property owner could unwind if they find another access. Mayor Ireland opened the public hearing. Coleen Collins told Council she owns property on Spruce street which includes a mining claim to the southeast and a duplex on the front part of the property. The back parcel has development rights. They have been trying to provide access to the back parcel through the front parcel. Ms. Collins said with the right -of -way provision in this ordinance will take away the square footage on the front that they will not be able to have a duplex on the front parcel. Ms. Collins said she feels like the rules are changing and they would not have been aware of this ordinance except they were trying to plat the easement to a drive. Mayor Ireland suggested amending the code to state that such loss shall not reduce the density in order to preserve the duplex on the front lot. Bendon cautioned the Council that changing this could result in unintended consequences to other lots in the community. Bendon said this provision is currently in this land use code; Ordinance 27 proposes a way to gain the FAR back if the easement is given up. That is the only change. Mayor Ireland suggested criteria to allow exemptions from this provision when one has a small lot. Mayor Ireland said Council cannot amend this globally because there may be tens and tens of cases like this. Councilman Torre said he does not favor changing the code except to address this one circumstance. Councilman Romero said the amendments in Ordinance #27 seem to favor a shared driveway which has less impacts, less curb cut, less asphalt, better utilization of land for properties that are stacked. Councilman Romero agreed he is not interested in more exemptions for people to use. Mayor Ireland suggested this could be defined for small lots, lots less than 9,000 square feet, for connecting lots and this shall be considered as a shared driveway and the square feet would not be deducted from lot area. Mayor Ireland said the size of access is a small proportion to their property so they could be exempted and encouraged to share access to the back lot. 16 Aspen City Council Regular Meeting January 10, 2011 Councilman Johnson asked what the public outreach has been. Bendon said he has e- mailed this to architects and planners in the valley and has corrected some small issues brought up from citizens. Councilman Johnson asked about historic sheds. Bendon said this is new. Councilman Johnson said if a shed is being used and is historic, does this amendment mean it can no longer be used. Bendon said his concern is that a shed be a minimal feature of the property. If someone has a historic outbuilding on their property and they are concerned it will affect their FAR if not torn down, there is room for discussion to preserve the structure. Councilman Johnson asked why 30" is capped for storm water. Bendon said one can dig deeper as long as the finished grade is not more than 30 ". Councilman Johnson asked about airlocks and if they are seasonal, one has to pay employee housing mitigation and if they are permanent, one does not. Bendon said the code does not address seasonal airlocks. There is a requirement that new buildings develop an integrated airlock to the entrance to their building. Internal airlocks have been identified as potential retail space, the doors disappear and tables are placed there. When it gets cold, applicants come in for permission to place a plastic heat shield which detracts from the appearance of buildings in the commercial core. This amendment exempts the internal airlock space from net leasable and net leasable is charged for the airlocks. Bendon pointed out the code does not currently differentiate between net lot area and gross lot area and the minimum lot size is the gross lot area and the developable area is net lot area. Mayor Ireland moved to adopt Ordinance #27, Series of 2010, on second reading amended that small lots of 9,000 square feet or less be exempt from reductions where the access is through one lot to another via a shared driveway; seconded by Councilman Romero. Roll call vote; Councilmembers Skadron, yes; Johnson, yes; Torre, yes; Romero, yes; Mayor Ireland, yes. Motion carried. Councilman Romero moved to adjourn at 10:30 PM; seconded by Councilman Torre. All in favor, motion carried. / / t l / Kathryn �' +ch, City Clerk 17