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HomeMy WebLinkAboutcoa.lu.ca.980 gibson 0048.2009 THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0048.2009.ASLU PARCEL ID NUMBER 273707410001 PROJECTS ADDRESS 980 GIBSON AVE PLANNER JESSICA GARROW CASE DESCRIPTION CODE INTERPRETATION REPRESENTATIVE GARFIELD & HECHT DATE OF FINAL ACTION 8/20/09 CLOSED BY ANGELA SCOREY ON: 03.30.11 R_FFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070, ASPEN LAND USE CODE ADDRESS OF PROPERTY: N Aspen, CO STATE OF COLORADO ) ) ss. County of Pitkin ) I O' Q,1O\ SCO (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) or Section 26.306.010 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen no later than fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen no later than fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. '7 Sign e The foregoing "Affidavit of Notice" was acknowledged before me this3/ day of 200 `� by S C WITNESS MY HAND AND OFFICIAL SEAL RE: J NOTI CE INTERP / 0 5 THE LAND USE CODE - DALCUION OF OF FLOOR AREA AND My commission expires: DEVELOPMENT NOTICE IS HY GIVEN that a code in terpretation rg the calculation offloor area, Section 220.0 of the City 01 Aspen Land Use Oode, evelopment rights, SecLOn of Aspe I- nd requestedlby the Garfield and Hecht on behalf of MD1 LLG, was rendered on 8/19/2009 and is available Notary Public for public inspection in the Community Development Department For further information contact Jessica Garrow at the City of Aspen Community Development Department. 130 S _ ��� Galena St, Aspen, CO, (970)429-2780, �T�L A-F� �� Published in the Aspen Times weekly on August ATTACHMENTS• `O�PRY P�Q ;,`tl % 30, 2009. )3934120) : � ' •v` • s in 1 COPY OF THE PUBLICATION ; i LAURA 3 / • MEYER • 4 ` ,, My Commission Expires 08110/2010 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTIONS: Section 26.104.100, Definitions — Right of Way Section 26.470, Growth Management Section 26.575.020.0 - Calculations and Measurements, Lot Area Section 26.710.040, Medium Density Residential (R-6) Zone District EFFECTIVE DATE: August 19, 2009 WRITTEN BY: Jennifer Phelan, Community Development Deputy Director Jessica Garrow, Long Range Planner APPROVED BY: i Chris Bendon, Community Development Director COPIES TO: City Attorney City Planning staff SUMMARY: This Land Use Code interpretation is being issued in response to an inquiry with regard to the `parcel' created as a result of MDI LLC, et al. v. The City of Aspen, et al. Pitkin County Case No. 06 CV 165. The request was filed by David McConaughy of Garfield and Hecht LLC on behalf of MD 1 LLC and asks that the Community Development Director indicate if there is a development right to the "Northerly Parcel" referenced in Pitkin County Case No. 06 -CV -I 65. The requester shall have the right to appeal this code interpretation, as outlined below. BACKGROUND: The purpose of this interpretation is to explain the development rights, if any, associated with the "Northerly Parcel" described in the Amended Quiet Title Decree issued by the Pitkin County District Court in Case No. 06 -CV -165. The "Northerly Parcel" was originally platted as right -of -way called Silverking Drive in the Alpine Acres Subdivision. Silverking Drive was dedicated to Pitkin County for public use when it was originally approved in 1964. The subdivision was annexed by the City in 1976. The right -of -way, although dedicated, was never improved upon and MD1 LLC recently received possession of the right -of -way through Quiet Title Decree. The area is in the R -6 Zone District. The legal case began as an adverse possession claim. The City agreed to disclaim any interest in the subject property upon certain conditions agreed to by the parties to the lawsuit to ensure that adequate utilities are available and adequate right -of -way was preserved for access to other surrounding lots. When the City disclaimed interest in the right -of -way, there was no discussion or reference by the plaintiffs regarding the creation of separate parcels, floor area, or development rights. The final Decree did not mention floor area or new development rights. DISCUSSION Staff has relied on four (4) sections of the Land Use Code, to render this interpretation. Following are the sections, with emphasis added: A. Section 26.710.040, Medium Density Residential (R -6) Zone District. Allowable Floor Area in the R -6 Zone District is based on Lot Area. B. Section 26.575.020.C, Calculations and Measurements — Lot Area. ... Also excluded from total lot area for the purpose of floor area calculations in all zone districts is that area beneath the high water line of a body of water and that area within a vacated right -of -wax or within an existing or proposed dedicated right -of -way or surface easement. ... C. Section 26.104.100, Definitions — Right -of -Way. A strip or other area of land specifically designated or reserved for travel, passage, and/or the installation of utilities or other similar uses by persons other than, or in addition to, the landowner. D. Section 26.470, Growth Management. Section 26.470.020, Applicability — General: This Chapter shall apply to all development in the City of Aspen — Residential, Lodging, Commercial, and Community Facilities. Citation A states that Floor Area calculations in the R -6 Zone District are based on Lot Area. Citation B states that any area within a proposed right -of -way is excluded from total Lot Area for floor area purposes and therefore does not contribute to floor area calculations. Citation C defines a "right -of- way." Citation D states that any and all development, regardless of the use type, must undergo a growth management review and either receive a growth management allotment or an exemption. If a growth management allotment or exemption is not received development cannot occur. INTERPRETATION It is Staff's interpretation that the land area that MD1 LLC received through the Quiet Title Decree has no associated floor area and does not have a development right. First, because the land area in question was a proposed right -of way, it is deducted from the calculation of Lot Area and therefore it has no associated floor area. Second, all development in the City of Aspen must receive a growth management allotment or exemption in order to have a development right. The land associated with the Quiet Title has never received such a review. This interpretation was provided on August 19, 2009, and shall become effective on August 19, 2009. This interpretation of the land use code shall be valid until such time as the code sections specified are amended to implement this clarification or for other purposes. APPEAL OF DECISION As with any interpretation of the land use code by the Community Development Director, an applicant has the ability to appeal this decision to the Aspen City Council. This can be done in conjunction with a land use request before City Council or as a separate agenda item. 26.316.030(A) APPEAL PROCEDURES Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination. .,, . r. u . n 2 n * i y a a o O i hi C^ Co y 9 ti r a ttl Z I .n r ......... 0 m 4 4 22 ‘..< Y+ r �.� T zs Il �— i (--)._c--- w DI SIIIII s W - ISM 45 4. NIf D o O UNITF I t N A w Id -a 03o I/ t it N 0 c ; i 0.0 A RI tO Vn ° W 13 01 N m Q� O - 0 Ip S ENDER : COMPETE THIS SECT /ON Complete kerns kerns 1 Print our am Del r vets a COMPLETE THIS SECT /ON ON DEL /VERY �O • Attach m t e his we can card t the you. X�1 Signature or on front It k of / �� - � 1. Anwe 1eftea to oats permits. the manpiece, B. Reaped by �ABent UI Printed ❑ Addr ess D. la delivery addiese I Y L fly ' a " 1 � lr� n e nter v different item's? . �N r" 7Aj .00 Sllpll a Service Woe Xcertilled 4.10 1:3 express X Man 2. whom service/86g 91 7 108 4. ❑ insured r ❑ c• OD Recei Pt for Merchandise RS For 38 11, (Etlra Feat ❑rae 2133 3934 3813 Ooma'tic Return Rec 4 915 • O 0 ASPEN OFFICE GARFIELD & HECHT, P C AVON OFFICE 601 East Hyman 0070 Avenue . . Benchmark Road Aspen, Colorado 81611 Post Office Box 5450 Telephone (970) 925 -1936 ATTORNEYS AT LAW Avon, Colorado 81620 Facsimile (970) 925 -3008 Telephone (970) 949 -0707 Since 1975 GLENWOOD SPRINGS OFFICE Facsimile (970) 949 -1810 The Denver Centre www.garfieldhecht.com RECEIVED BASALT OFFICE 420 Seventh Street, Suite 100 River View Plaza Glenwood Springs, Colorado 81601 100 Elk Run Drive, Suite 220 Telephone (970) 947 -1936 lf1 Basalt, Colorado 81621 2 i OO Facsimile (970) 947 -1937 JUL 1 L J Telephone (970) 927 -1936 L11 Y OF ASPEN Facsimile (970) 927 -1939 COMMUNITY OEUELOPMENT July 20, 2009 David H. McConaughv dmcconaugh I; aigarreldh eeh t. com Chris Bendon CortIn De "elopment Director City of Aspen Aspen, CO 81611 Re: 980 Gibson Avenue Dear Mr. Bendon: We represent MD 1, LLC, which is the owner of a condominium unit located at 980 Gibson Avenue known as Unit 1, Lot 1, Block 1, Alpine Acres Subdivision. MD 1, LLC is also the owner of the "Northerly Parcel" described in the Amended Quiet Title Decree issued by the Pitkin County District Court on July 10, 2008, in Case No. 06 -CV -165. The purpose of this letter is to request an interpretation of the Aspen Land Use Code pursuant to Chapter 26.306 of the City Code. The subject property was the topic of a pre - application conference between the owner's representative, Stan Clauson, and Planner Jessica Garrow in November 2008. A copy of the pre - application conference summary is enclosed for reference. The applicant respectfully disagrees with several points in the summary and presents this application for the purpose of obtaining a better understanding of the City Code and the purported basis for Ms. Garrow's conclusions. Questions Presented Our general request is to provide an explanation and basis under the City Code for the conclusions set forth in the pre - application conference summary. Additionally, we request specific answers to the following questions. 1. Where a separate legal parcel of 5,603 square feet was established by Court Decree in a case where the City was a named defendant, and not through any City subdivision process, does the parcel satisfy the dimensional requirements for a detached single family home in the R- 6 zone district under Section 26710.040? We believe the answer is "yes." City Code § 26.710.040 provides that the "minimum lot area per dwelling unit" in the R -6 zone is 4,500 square feet for a detached residential dwelling, 390542 -1 0 Printed on recycled paper City of Aspen GARFIELD & HECHT, P.C. July 20, 2009 Page of but the "minimum lot size" is 6,000 square feet. We believe the latter provision applies only during the subdivision process to create a new lot, but an existing parcel in the R -6 zone would be eligible for construction of a detached dwelling unit if it meets or exceeds 4,500 square feet and complies with other requirements of the City Code. 2. Is there any process under the City Code by which a lot line between contiguous parcels can be dissolved without formal action by the City and notice to the affected property owners? We are not aware of any such process and believe the answer is "no." 3. In the case of a condominium plat identifying three adjacent parcels where Parcel A is owned solely by Party 1, Parcel B is owned solely by Party 2, and Parcei C is a common element owned in equal undivided interests by both Party 1 and Party 2, are each of the three parcels "in separate ownership" or are any two or more parcels in the "same ownership" for purposes of City Code Section 26.312.050? We believe that each of the three parcels would be in separate ownership because title is vested differently for each parcel and that none of them would be in the same ownership. 4. Is there any provision in the City Code providing that a legal parcel established by Court Decree has no associated floor area for any purpose of the City Code if such parcel was ever proposed as a potential right of way but was never actually dedicated to the City as a street or right of way? We are not aware of any such provision and therefore believe the answer is "no." 5. Under Chapter 26.306 of the City Code, will the City respond to an applicant's request to interpret the Code by describing or confirming the land use entitlements for a specific piece of property? We have been informally advised by the planning department that the Community Development Director would not provide an opinion regarding entitlements for a specific property under this Chapter. Therefore, we merely seek to confirm that such a request would be rejected and /or summarily denied. However, if the Community Development Director would respond to such a request, then we request a summary of the entitlements for the parcels owned by our client as described at the beginning of this letter. * * * 450346 -1 ® Printed on recycled paper 0 City of Aspen GARFIELD & HECHT, P.C. 3u Page 3 of 3 If you require any additional information, please let me know. We look forward to your response. Thank you very much for your time and attention. Very truly yours, Garfie : : ' = r t, P.C. a id H. ) cConaug DHM:lp Enclosure(s) Cc: MD 1, LLC 450346 -1 ® Printed on recycled paper CITY OF ASPEN PRE - APPLICATION CONFERENCE SUMMARY PLANNER: Jessica Garrow, 429 -2780 DATE: November 5, 2008 PROJECT: 980 Gibson REPRESENTATIVE: Stan Clauson, 925.2323 DESCRIPTION: The Applicant is interested in better understanding what can be done on the property located at 980 Gibson. 980 Gibson is a corner lot, adjacent to Gibson Ave and Matchless Drive. The property is designated Historic. The property was engaged in a Quiet Title action for a platted right of way that was adjacent to the historic property and, known commonly as Silverking Drive. This is recorded at reception number 550852. The Community Development Department and the City Attorney's office have examined the quiet title, and believe the following with respect to 980 Gibson: • The quiet title did not create new developable parcels of land. Rather, the quiet title enlarged 2 existing properties, one is 980 Gibson. • Because the area of land was originally platted for a ROW (though never accepted by the City) it cannot be used for purposes of Floor Area. It can, however, be used for purposes of setbacks. • The City of Aspen requires adequate ROW for Matchless Drive, which is adjacent to 980 Gibson. This may mean that a portion of the property that was subject of the quiet title may need to be dedicated to the City. The City advises the applicant to get a survey completed based on the language in the Quiet Title and agreements with the City to confirm this understanding. Land use applications can be found on the Community Development website at: http : / /www.aspenpitkin.com /depts /41 /main planninq.cfm. Relevant Land Use Code Section(s): 26.104.100 Definitions, Parcel 26.304 Common Development Review Procedures 26.415 Development Involving a Landmark 26.575.020 Calculations and Measurements 26.710.040 R -6 Zone District http://www.aspenpitkin.comidepts/38/citycode.cfm Review by: - Staff for compliance with quiet title Referral Agencies: None. Planning Fees: none at this time Referral Agency Fees: None Total Deposit: none at this time To apply, submit the following information: ❑ Proof of ownership with payment. ❑ Signed fee agreement. ❑ Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attomey licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Total deposit for review of the application. ❑ 3 Copies of the complete application packet and maps. HPC = 12; PZ = 10; CC = 7; Referral Agencies = 1 /ea.; Planning Staff = 1 ❑ An 8112" by 11" vicinity map locating the parcel within the City of Aspen. ❑ Site improvement survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not to warrant a survey document.) ❑ A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. List of adjacent property owners within 300' for public hearing ❑ Copies of prior approvals. ❑ Applications shall be provided in paper format (number of copies noted above) as well as the text only on either of the following digital formats. Compact Disk (CD)- preferred, Zip Disk or Floppy Disk. Microsoft Word format is preferred. Text format easily convertible to Word is acceptable. ❑ Applicants are advised that building plans will be required to meet the International Building Code as adopted by the City of Aspen, the Federal Fair Housing Act, and CRS 9.5.112. Please make sure that your application submittal addresses these building - related and accessibility regulations. You may contact the Building Department at 920 -5090 for additional information. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. II'II " "t "II 000t sEGG$t 1.69I.8 03 'uadsy uadsy !o kin JopeJia tuawdolanaa tqunwwoa uopua8 suya c 0918 wo"d Pa,iew — Ic co so oz� D � J'; .q • t.pe r 'hdtL1�'lf' 10918 OCR 001 all �1 V • THE CITY OF ASPEN Land Use Application Determination of Completeness Date: August 4, 2009 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this property is 0048.2009.aslu, 980 Gibson Code Interpretation. The planner assigned to this case is Jessica Garrow. Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. ✓ Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. Pursuant to section 26.306.010.C, Interpretations of Title Procedures, an interpretation shall be rendered within fifteen days, or by August 19, 2009. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429 -2759 if you have any questions. Than You, ennifer P 'ela , Deputy Director City of Aspen, Community Development Department C: \Documents and Settings \jennifep \Local Settings \Temporary Internet Files \Content.Outlook \M7XGNHMS \980 Gibson Completeness Letter FINAL.doc Jennifer Phelan From: Jennifer Phelan Sent: Tuesday, August 04, 2009 8:47 AM To: 'dmcconaughy @garfieldhecht.com' Subject: 980 Gibson - interpretation Attachments: 980 Gibson_Complete.pdf Hi David: Your application has been deemed complete and the attached pdf is for your records. Regards, jennifer J envu fer Phela.w, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com 1 \ THE CITY OF ASPEN Land Use Application Determination of Completeness Date: July 22, 2009 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. A case number and name have not been assigned to this property because your application is incomplete. The planner assigned to this case is Jessica Garrow. Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: • $50 Land Use Fee for an Interpretation of the Land Use Code Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review will be done until all of the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. ❑ Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429 -2759 if you have any questions. Tha • ou, %itilti `,s . enniferPhelie.uty rector City of Aspe •ommunity Development Department G: \NEW G DRIVE FOLDERS CITY \PLANNING \Land Use Cases \Current \Current LU CasesUessica \980 Gibson interpretation \Completeness Letter Land Use.doc 7 . . File Edit Record Navigate Farm Reports Format Iab help Q ©k "M `41 l3 ai ' UJ A D W0A ilk 4 A10 ®!j f A S 9 ,ra M ®t O 'v. 431 ,Main lkaluetion ICustom Fields IActions IFeef (Parcels IFeesunmary 'Sub permits IAttedenents IRating Status Rout 1 1 Permit Type lasiu J. Aspen Land Use Permit it 10048.2009.ASLU Address 1980 GIBSON AYE J Apt/Suite 1 City 'ASPEN Rate 'CO J Zip 161611 J Permit Information - _- Master Permit' J � Routing Queue Iaslu07 Applied 107/22/2009 J J Project Status 'pending Approved 1 Description Code Interpretation Issued' J Final' J Submitted 'David McConaughy 925 -1936 Clock unning Days 1 Expires 7/17/2010 J Owner Last Name IGARFIELD &HECHT J First Name l 601 E HYMAN UNIT 2 Phone ((970) 925 -1936 ASPEN CO B1611 17 Owner Is Applicant? Applicant Last Name 'GARFIELD & HECHT J First Name1 601 E HYMAN UNIT 2 Phone 1(970) 925 -1936 Cust *125185 _i ASPEN CO 81611 Lender Last Name I J First Name l Phone I Permit lenders ful address . _ -. _ -- AspenGold@) -f - Record: 1 of 1 GV / Yvt c. v ` , V b 0(1) 51 e,,,_. e -A-A- 2 4.-,c, _..' - Y 0 `)