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HomeMy WebLinkAboutcoa.lu.ca.980 gibson 0054.2009m 90 GIBSON AVENUE 0054.2009.ASLU _ CODE INTERPRETATION APPFAI • s THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBER PROJECTS ADDRESS PLANNER CASE DESCRIPTION REPRESENTATIVE DATE OF FINAL ACTION 0054.2009.ASLU 273707410001 980 GIBSON AVE JENNIFER PHELAN CODE INTERPRETATION - APPEAL GARFIELD & HECHT 12/4/09 CLOSED BY ANGELA SCOREY ON: 03.30.11 RESOLUTION NO. 100 (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING LOT AREA AND DEVELOPMENT RIGHTS. WHEREAS, the Community Development Director received a request for an interpretation of the Land Use Code regarding Floor Area and development rights from the owner of an area of land gained through quiet title action (Pitkin County Case No. 06-CV-165) and described as the "northerly parcel" represented by Attorney David McConaughy; and, WHEREAS, pursuant to Chapter 26.306 — Interpretations of Title, the Director rendered a decision and the owner sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and oral argument from Attorney David McConaughy representing the appellant, and the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's Interpretation of the Land Use Code regarding Floor Area and development rights associated with the "northerly parcel." This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regular meeting on November 23, 2009. ATTEST: Kathryn S. K , Crty Clerk APPROVED AS TO FORM: John orcester, City Attorney Michael C. Ireland, M� or Resolution No.--, Series of 2009. Page 1 Regular Meeting Aspen City Council November 23, 2009 Mayor Ireland said it is pretty clear that conceptual does not mean final approval and his final vote will depend on overcoming the concern that this project not become a large empty space blocking the views of the mountain. Roll call vote; Councilmembers Torrc, no; Romero, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #100, SERIES OF 2009 — 980 Gibson Code Interpretation Appeal Jennifer Phelan, community development department, told Council this is an appeal of a code interpretation regarding development rights and floor area associated with an area of land gained through a quiet title action. Ms. Phelan told Council this is bounded by Matchless Drive and Gibson Avenue; it is the northerly parcel. Ms. Phelan noted the community development director is required to provide interpretations of the land use code. The applicant requested an interpretation about this parcel of land, which was acquired through quiet title action. In the interpretation, staff noted that this 5600 square foot parcel does not have any floor area nor any development right associated with it. Ms. Phelan pointed out the appeal asked 3 things; an answer to all of the 5 questions posed in initial request; reversal of the determination that the northerly parcel has no floor area; and that the property is considered to have a development right and to be reviewed through growth management administratively. Ms. Phelan said regarding not answering questions 1, 2, and 3, staff felt those were hypothetical and interrogatory question rather than providing clarity around the text in the code. Ms. Phelan said regarding the determination of no floor area for the northerly parcel, the land use code says that certain things are deducted from a lot area in calculating floor area. One of those is proposed dedicated rights -of -way. Ms. Phelan said this area of land gained through quiet title action was a proposed right-of-way and dedicated by the subdivider of the Alpine Acres subdivision, which was 5 lots and 2 streets. Ms. Phelan said staff determined this was a proposed right-of-way and could not be counted toward the definition of lot area and there is no associated floor area. Ms. Phelan said there was a request to go through administrative growth management. Ms Phelan reminded Council all lots within the city are required to go through growth management review. This has not and staff does not believe this lot meets the criteria to be reviewed administratively. This area of land was platted as a right of -way and expected to be a right-of-way. This is part of a 5 lot subdivision; there are other lots in this subdivision that have gone through additional subdivision review and this property has not. Ms. Phelan said this is no different than an adverse possession claim where the beneficiary cannot develop land gained through adverse possession. Ms. Phelan pointed out there are 3 criteria for overturning a code interpretation; lack of due process, excess of jurisdiction, or abuse of discretion. Ms. Phelan stated staff met the due process by notice requirements. The community development director is required by the land use code to issue interpretations of the title of the code so the jurisdiction was not abused. Ms. Phelan said in interpreting the land use code, some discretion has to be used; however, staff does not feel there was an abuse of discretion. 16 Regular Meeting Aspen City Council November 23, 2009 John Worcester, city attorney, noted this is an appeal on the record and Council has to limit their discussions to the record before them. Council can only reverse the decision of the community development director if they find a denial of due process, an abuse of discretion or excess of jurisdiction, that they misapplied the law. David McConaughy, representing the applicant, said the only stated reason he has found from community development department about why this parcel does not have floor area is that it was a proposed right-of-way, not because it was acquired through quiet title or adverse possession. Mayor Ireland said the land use code 26.575.020(c) that area within a vacated right-of-way or within an existing or proposed dedication right of way or surface easement does not control the issue. McConaughy said they can agree this is not a current right-of-way and agree it is not a vacated right-of-way because it was never dedicated and the question is, is it a proposed right-of-way. McConaughy stated the applicant's goal is to redevelop the property and they need to know what the starting point is. McConaughy said to that end, they asked staff what land use entitlements were associated with this parcel and were told there were none; it is sterile ground and not a separate parcel, McConaughy said the first 3 questions go to the issue of whether this is a separate parcel. McConaughy noted the parcel is shown on the map; the court created it as a parcel and it is not owned the same way the adjacent parcel is. Mayor Ireland asked if allowing quiet title creation of separate parcel in a separate entity opens the door to subdivision by court action and does the city have the right to stand up against that. McConaughy said the city does not because that parcel was created by an order of the court and it is what it is; the city was a party to that case. McConaughy said the question is whether there are development rights associated with that parcel. McConaughy said if the answer is yes, the applicant would like to come back with a plan and first they need to know what the floor area would be. McConaughy said the only stated reason is that this was a proposed right-of-way. McConaughy questioned what "proposed" means, ever proposed. It was proposed on a plat and approved by the county in 1964 and annexed into the city in 1976. This was never accepted as a right-of-way by the county and when it was annexed, it was known it had not been constructed so it is not currently proposed. McConaughy said this was proposed once; however, it does not mean the property is sterilized as a right-of-way forever. There has to be some connection to reality. McConaughy stated their position is if the discussion is a "proposed right-of-way", there needs to be an actual proposal. McConaughy stated nobody thinks this will ever be a right-of-way; the city disclaimed all interest in this parcel. McConaughy told Council the applicants agree they need a growth management quota to develop the lot. The issue is whether they are eligible for an administrative review. McConaughy pointed out the staff memorandum argues that the property has to be legally existing in the city prior to 1977. McConaughy reiterated this was annexed as a separate metes and bounds parcel in 1976. Ms. Phelan pointed out the plat shows Herron drive and Silverking drive, which were the original dedicated right-of-way in the Alpine Acres subdivision on the annexation plat. Mayor Ireland asked if the parcels were under common ownership, they were merged. McConaughy said those parcels were in no man's land until the court determination. 17 Regular Meeting Aspen City Council November 23, 2009 McConaughy said the reason this is ineligible for administrative review because it was not in the city until 1977 it not right; it was annexed in 1976. McConaughy said the real point is whether there is floor area associated with the parcel. Mayor Ireland said he would like to know if the parcels were merged because no matter what the court decrees, there is not a separate parcel and it cannot get a growth management quota. McConaughy showed the northerly parcel and the southerly parcel and when it was annexed, all was shown as one legal parcel and not part of the lot, not part of the common elements, so there was a parcel. Mayor Ireland asked if there was ownership of the parcel by the adjoining properties. McConaughy said not by his clients. McConaughy said the shaded area shown on the plat as a right-of-way was not owned by the city or the county. Mayor Ireland asked why the adjoining owners did not own this land and if the court was correct and the adjoining property owners owned it, and then the land was merged as adjoining parcels. Mayor Ireland said parcels do not have to be owned by the city to merge with the adjoining lots. Mayor Ireland noted there is not such a thing as a parcel that does not have ownership. Ms. Phelan said this property was platted as a right-of-way, not as a developable lot. It was annexed as Silverking Drive, not as a developable lot. Councilman Romero asked if Herron Drive had the same conditions. Ms. Phelan said it was platted as a right-of-way. McConaughy said that was accepted because it was built. Ms. Phelan said the Silverking Drive was proposed and dedicated as a right-of-way. McConaughy said the language on the 1964 plat says, "the foregoing plat is accepted for filing and conveyance of road thereon and temporarily and conditionally approved by the Board of County Commissioners and acceptance of said roads is subject to satisfactory construction hereof by subdivider", which never happened and the county never accepted the dedication, and that's why the city agreed that it acquired no ownership when it annexes and that's why the court found it could be adversely possessed. Mayor Ireland said if someone owns two adjacent parcel with a condominium on one and vacate land on the other and there was common ownership prior to 1970's, it becomes one parcel; it is merged. McConaughy said if they submit a re -subdivision application, the separate parcel issue is moot. The question is what the allowable floor area is. Councilman Torre asked if there are any utilities running through this parcel. David noted there is an underground sewer line. Councilman Torre stated he cannot find that the development director abused his discretion or went outside his jurisdiction. Councilman Skadron concurred and stated the community development director's interpretation was ethical and there was no abuse of authority. Councilman Johnson said with due process and discretion, he is comfortable with the decision of the community development director. Councilman Johnson asked if there is any room for negotiation on the size of the floor area. Worcester answered it is not an issue of whether the applicant is entitled to 100 square feet or 200 square feet; they are either entitled to FAR or not based upon the language in the code. Worcester said part of the issue is what does proposed right-of-way mean. Mayor Ireland said he does not understand how this would escape merger. Worcester said that was not part of the consideration. Worcester said • Regular Meeting Aspen City Council November 23, 2009 there is no doubt there was a proposed right-of-way in the past, it was never dedicated properly. It was not accepted by the county and when the land was annexed, it was not accepted by the city. It was a proposed right-of-way at one point. Worcester pointed out when rights -of -way arc vacated; the property can no longer by counted toward the FAR. McConaughy said they are requesting Council direct staff to answer the questions. Mayor Ireland stated there is no entitlement to have hypothetical questions answered. Councilman Romero stated the community development director exercised his discretion based on the language of proposed right-of-way and there was no over extension of reach based on the record in front of Council. Mayor Ireland said he feels this revolves around showing there is a separately owned parcel before one can get development rights. Mayor Ireland moved to adopt Resolution #100, Series of 2009, affirming the community development director's interpretation; seconded by Councilman Torre. All in favor, motion carried. Councilman Johnson moved to adjourn at 10:30 p.m.; seconded by Councilman Torre. All in favor, motion carried. Kathryn S. och, City Clerk 19 P211 MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney THROUGH: Chris Bendon, Community Development Director FROM: Jennifer Phelan, Deputy Planning Director RE: Appeal of Land Use Code Interpretation — Lot Area and Development Right DATE: November 23, 2009 APPLICANT /OWNER: MD I, LLC REPRESENTATIVE: David McConaughy, Garfield and Hecht, PC LOCATION: Alpine Acres Subdivision, specifically a former platted right-of-way within the subdivision that is described as the "northerly parcel" within this memo. SUMMARY: The Applicant is appealing an interpretation issued by the Community Development Director. The Applicant requests that Council direct staff to 1) respond to 3 out of 5 questions submitted in the initial interpretation request, 2) reverse staff s conclusion that the "northerly parcel" has no floor area, and 3) permit the "northerly parcel" be reviewed administratively with regard to growth management. STAFF RECOMMENDATION: Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation and not require staff to respond to the 3 questions posed by the Applicant in the original interpretation request. b i R+3 ZZ 'PUD Figure 1: Vicinity Map or "northerly parcel" P212 SUMMARY: One of the jobs assigned to the Community Development Director is to provide interpretations of the text of the City's Land Use Code. This is a formal process in which an applicant requests a written interpretation and, if they don't agree with the interpretation, affords the applicant the right to appeal the decision to the City Council. Section 26.316.030 of the Aspen Land Use Code sets forth the applicable standard of review that Council should follow in these matters and the actions available to Council following the hearings on the appeals. STANDARD OF REVIEW: Section 26.316.030(E) reads as follows: Standard of review. Unless otherwise specifically stated in this title, the decision - making body authorized to hear the appeal [City Council] shall decide the appeal based solely upon the record established by the body from which the appeal is taken [Community Development Director]. A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. The Land Use Code does not define the terms: "a denial of due process", "exceeded its jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms as follows and may be used by Council in its deliberation of the appeal: A denial of due process may be found if some procedural irregularity is determined to have occurred that affected a significant right of the appellant, or the administrative body otherwise acted in violation of the appellant's constitutional or statutory rights. Ad Hoc Executive Committee of Medical Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo. 1986.) A decision may be considered to be an abuse of discretion if the "decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Ross v Fire and Police Pension Ass'n., 713 P.2d 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959). A decision may be considered to be in excess of jurisdiction if the decision being appealed from "is grounded in a misconstruction or misapplication of the law," City of Colorado Springs v Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the authority of the administrative body to make. City of Colorado Springs v SecureCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). 2 0 P213 ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING: Section 26.316.030(F) reads as follows: Action by the decision -making body hearing the appeal. The decision -making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by resolution. All appeals shall be public meetings. BACKGROUND: In this case, the interpretation rendered by the Director essentially discusses whether there is. floor area or a development right associated with a specific area of land that was gained through a quiet title action (described as the "northerly parcel" within this memo) and shown in Figure 2, below. The interpretation request arose after the Applicant met with Community Development staff and was provided a pre -application conference summary primarily stating that no floor area or development rights are associated with the subject area of land gained through the quiet title action. The Applicant disagreed with those two points in the summary and requested an interpretation, by posing a number of questions, to gain better understanding of staff s conclusion in the pre -application conference summary. 0 S .B•SPD' C WIJ M K-1- \ .�N G Ci'ry r / 1 283/ 2 vcouarui.—mar<.— '—hao.w J J � �IBSONq Figure 2: "Northerly parcel" gained through quiet title action As noted in the Appeal request (Exhibit B), the Applicant is requesting Council to address three issues in this Appeal. These issues are listed below and are addressed individually in the memo: 1) The interpretation did not answer three questions submitted in the interpretation request — and the Director should be directed to do so; and, 3 P214 0 2) The interpretation finds that the land area gained through quiet title is a proposed right -of way and therefore is excluded from the calculation of Lot Area (resulting in the "northerly parcel" having no floor area associated with it) — and the Director's finding should be reversed, and, 3) The "northerly parcel" is not eligible for development because it has never received a Growth Management Review under Chapter 26.470 of the Land Use Code — and the Council should amend the interpretation to allow the land area to apply for administrative growth management review. ` Issue 1) The Interpretation issued did not answer questions 1, 2 and 3. The purpose of an interpretation is to provide an explanation of the meaning of the text of the Land Use Code and boundaries of the zone district map. As noted previously, the request for an interpretation was a result of staffs determination in a pre -application conference summary that the subject area of land has no associated floor area or a development right. Although five questions were posed, a number of the questions were essentially interrogatory questions, seeking legal opinions and posing inappropriate hypotheticals. Staff s role in a code interpretation is to interpret the actual text of the code, not to respond to hypothetical questions. As such staff answered the ultimate questions posed in the interpretation request: whether the "northerly parcel" has a development right or floor area associated with it. Issue 2) The Interpretation finds that the land area gained through quiet title is a proposed dedicated right -of way. The calculation of Allowable Floor Area is based upon the size of the Lot Area. Lot Area can be a net number rather than gross number due to adopted exclusions from Lot Area within the Land Use Code. Section 26.575.020(C), Lot Area, of the Land Use Code states, "excluded from total lot area...is that area within a vacated right-of-way, or within an existing or proposed dedicated right-of-way (emphasis added) or surface easement." The "northerly parcel" is part of an unimproved proposed right-of-way originally known as Silver King Drive (now known as Matchless Drive) that is part of Alpine Acres Subdivision (Figure 3). The right-of-way was proposed as a public right-of-way by the dedication certificate on the Alpine Acres subdivision plat. A portion of the dedication reads, "and does hereby convey to Pitkin County, for public use, Silver King Drive and Herron Drive, as platted for roadway easements." 11 P215 Figure 3 Alpine Acres Subdivision plat - -• _...._ ..... Qv- �r�r ._..... The City's Land Use Code defines "public right-of-way" as, "a dedicated strip or other area of land on or over which the city and/or public may travel or use for passage and within which public utilities and/or streets, alleys, trails, sidewalks and other ways may be installed." Although not improved to standard street improvement requirements and consequently not accepted by Pitkin County due to the lack of improvement, the subject area of Silver King Drive was proposed for dedication as a public right-of-way by the original subdivider of Alpine Acres by the plat's dedication language. The City's Land Use Code does not define the term "proposed." This requires the Director use some discretion. Further, the code does not define the timeframe in which the proposal must occur, whether the proposal needs to be formally accepted, or in whose jurisdiction the proposal is made. Quite simply, the Alpine Acres Subdivision plat was approved by Pitkin County with Silver King Drive and Herron Drive proposed as a public -right-of-way. The County consented, with the signing of the plat, to the creation of both streets. Clearly, the developer "proposed" or offered both drives as dedicated rights -of -way to the County. Subsequently, when the entire subdivision was annexed into the City, the annexation plat accepted by the City shows both Herron Drive and Silver King Drive. 3) The land area is not eligible for development because it has never received a Growth Management Review under Chapter 26.470 of the Land Use Code. In the interpretation rendered by the Director, it is noted that the land associated with the quiet title action has not received a growth management allotment or exemption in order to have a development right. All development within the City is subject to Chapter 26.470, Growth Management Quota System, and commonly described as growth management review. The Applicant states that the "northerly parcel" should be eligible for an administrative growth management review under Section 26.470.060 (B), Single -Family and 5 P216 • Duplex Dwelling Units; however, the "northerly parcel" does not meet any of the necessary conditions to be reviewed under this subsection. To be reviewed under this subsection, a vacant lot must meet one of the following conditions: it was created by a lot split, it was created by a historic lot split, or it was subdivided or legally described prior to November 14, 1977. This vacant area of land does not meet any of these criteria and cannot be reviewed administratively. Alpine Acres Subdivision was originally approved by the County with five (5) lots and two roads. If the composition of the subdivision is to change, it requires subdivision review to ensure orderly development such as providing adequate access or public utilities. For example, Lot 5 has been subdivided through City Council review and approval and is now two lots instead of one. A subdivision review by the City has not occurred and the quiet title action was not reviewed under the expectation of development rights being created. STANDARDS OF REVIEW: 1. Due Process — The applicant has met with staff on a number of occasions to discuss his rights associated with the subject land area. After the pre -application summary was provided to him, his representative requested an Interpretation based on clarifying the basis of staff's conclusions in the pre -application summary (no floor area or a development right is associated with the subject area of land). An Interpretation provides the opportunity for a party to appeal the findings. Certain timeframes affect when interpretations must be provided after a request and when appeals need to be scheduled. Those timeframes have been met. As required by the Land Use Code, the appellant was provided notice of tonight's meeting via registered mail and all other affected parties were noticed by publication in the newspaper, as required. (Please see Exhibit D). Assuming tonight's meeting does not contain any procedural flaws, staff believes that proper procedural due process has been provided. In providing an interpretation, the Director relied on the facts presented and the language within the Land Use Code. Definitions within the code such as "right-of-way" and "Lot Area" were used in evaluating the original plat creating Alpine Acres and any rights associated with the land area gained through quiet title action. Although "proposed" is not defined in the Land Use Code, staff applied the common definition of the word in evaluating the code language and rendering an interpretation. Staff's interpretation was not arbitrary and provided substantive due process. 2. Jurisdiction — The Director's jurisdiction to interpret the Land Use Code is established in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction, authority, and duties allocated to the Community Development Director. One of the Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306. " Staff believes this language is clear and it does not appear that the applicant is questioning this provision of the code. 2 i 0 P217 3. Discretion — With respect to abuse of the Director's discretion, the Director did need to use his discretion in rendering the interpretation. The question is whether the Director abused that discretion. With regard to issue 1, the Director is required to interpret specific text of the code to provide explanation and clarity. Staff does not believe hypothetical questions addressing a very specific application of the code to a property are proper matters for code interpretations. This style of questioning is not typically used to clarify the meaning of the text of the Land Use Code.. These are interrogatory questions, possibly containing limited facts, aimed at sequentially establishing a property right in a "gotcha" fashion. With regard to issue 2, there is no definition of "proposed" outlined in the code and staff used a literal interpretation, as Silver King Drive was proposed by the subdivider as a public right-of-way. In looking at issue 3, staff simply noted that all development is required to go through growth management review and such review has not occurred for the "northerly parcel." created through quiet title action. Staff tends to approach these sorts of tasks with a very pragmatic and realistic administration of development limitations. The Land Use Code does not predict every type of circumstance. Staff considers the text of the code as well as the effects that would be expected with different interpretations. The Director believes that his discretion was applied appropriately and the Interpretation was rendered ethically. CODE INTERPRETATION AND CODE AMENDMENT: The question in a code interpretation is what does the code say? On occasion, applicants seek a code interpretation because they believe the code should say something else. The code amendment process is the proper venue for the question what should the code say? TWO RESOLUTIONS: Attached are two Resolutions. One finds that the Director acted correctly and affirms the interpretation. The second finds that the Director exceeded his jurisdiction, abused his authority, or failed to provide due process and reverses the interpretation. RECOMMENDATION: Staff believes the Director's interpretation was rendered ethically and that no abuse of authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. CITY MANAGER COMMENTS: 7 P218 is is RECOMMENDED MOTION: (all motions must be made in the positive) "I move to approve Resolution No. 10 , Series of 2009, [affirming or reversing] the Community Development Director's interpretation of the Land Use Code regarding Lot Area and development rights. ATTACHMENTS: Exhibit A — Interpretation dated August 19, 2009 and Interpretation request Exhibit B — Appeal letter from David McConaughy dated September 1, 2009, with exhibits Exhibit C — Land Use Code Section Regarding Appeals Exhibit D — Affidavit of notice Exhibit E — Additional correspondence from David McConaughy dated October 9, 2009, with exhibits RESOLUTION NO. • P219 (SERIES OF 206 A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING LOT AREA AND DEVELOPMENT RIGHTS. WHEREAS, the Community Development Director received a request for an interpretation of the Land Use Code regarding Floor Area and development rights from the owner of an area of land gained through quiet title action (Pitkin County Case No. 06-CV-165) and described as the "northerly parcel" represented by Attorney David McConaughy; and, WHEREAS, pursuant to Chapter 26.306 — Interpretations of Title, the Director rendered a decision and the owner sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and oral argument from Attorney David McConaughy representing the appellant, and the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's Interpretation of the Land Use Code regarding Floor Area and development rights associated with the "northerly parcel." This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regular meeting on , 2009. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney Resolution No.--, Series of 2009. Page 1 P220 • RESOLUTION NO. _ (SERIES OF 2009) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING LOT AREA AND DEVELOPMENT RIGHTS. WHEREAS, the Community Development Director received a request for an interpretation of the Land Use Code regarding Floor Area and development rights from the owner of an area of land gained through quiet title action (Pitkin County Case No. 06-CV-165) and described as the "northerly parcel" represented by Attorney David McConaughy; and, WHEREAS, pursuant to Chapter 26.306 — Interpretations of Title, the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and verbal testimony from Attorney David McConaughy representing the appellant, the Community Development Director, and has found that the Director did not provide due process or either exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community Development Director's Interpretation of the Land Use Code regarding Lot Area and development rights associated with the "northerly parcel." 1) The "northerly parcel" cannot be considered a proposed dedicated right-of-way and therefore should not be excluded from Lot Area. 2) The "northerly parcel" is available for administrative growth management review under section 26.470.060 (B), Single-family and Duplex Dwelling units of the land use code. 3) Staff is directed to answer questions 1, 2, and 3 of Attorney David McConaughy's correspondence dated July 20, 2009. This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regular meeting on , 2009. Resolution No. , Series of 2009. Page 1 P221 ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John Worcester, City Attorney Michael C. Ireland, Mayor Resolution No. , Series of 2009. Page 2 P222 `�-- CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTIONS: EFFECTIVE DATE: WRITTEN BY: APPROVED BY: COPIES TO: City Attorney City Planning staff City of Aspen 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 August 19, 2009 Jennifer Phelan, Community Development Deputy Director Jessica Garrow, Long Range Planner Chris Bendon, Community Development Director SUMMARY: This Land Use Code interpretation is being issued in response to an inquiry with regard to the `parcel' created as a result of MD 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-165. 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. �'P223 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 righF of way 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 QU o Aspenin the QU o 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. ASPEN OFFICE -')1 East Hyman Avenue spen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3008 GLENWOOD SPRINGS OFFICE The Denver Centre 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 Chris Bendon "T!:ty Developmep-t Director City of Aspen Aspen, CO 81611 Re: 980 Gibson Avenue Dear MT. Bendon: www.gwfieldhecht.com RECEIVE® July 20, 2009 JUL 21 2009 CITY OF ASPEN CNO MUNITY DMLOPW F�*E,�J-A�5 AVON OFFICE 0070 Benchmark Road Post Office Box 5450 Avon, Colorado 81620 Telephone (970) 949-0707 Facsimile (970) 949-1810 BASALT OFFICE River View Plaza 100 Elk Run Drive, Suite 220 Basalt, Colorado 81621 Telephone (970) 927-1936 Facsimile (970) 927-1939 David K McConaughv dmcconaukhtn a)oarfeldhecht. coin 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-16$-.: 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 Ciil) was a named defendant, and not throvgh any C.'i>`y subdivision process, does the parcel satisfy the dimensional requirements for a detached single family home in the R- 6 zone district under Section 26 710. 0409 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 ® Printed on recycled oaner City of Aspen1. - rr J July 20, 2009 GAUIELD & HECHT, P.C. Page 2 of 3 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 identfying 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 0227 City of Aspen GARFIELD & HECHT, R C, July 20, 2009 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, DHM:lp Enclosure(s) Cc: MD 1, LLC 450346-1 ,cam .. • - - P228 ASPEN OFFICE 601 East Hyman Avenue Aspen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3008 GLENWOOD SPRINGS OFFICE The Denver Centre 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 Chris Bendon Community Development Director City of Aspen Aspen, CO 81611 Re: 980 Gibson Avenue Dear Mr. Bendon: www.garfieldhechtcom September 1, 2009 AVON OFFICE 0070 Benchmark Road Post Office Box 5450 Avon, Colorado 81620 Telephone (970) 949-0707 Facsimile (970) 949-1810 BASALT OFFICE River View Plaza 100 Elk Run Drive, Suite 220 Basalt, Colorado 81621 Telephone (970) 927-1936 Facsimile (970) 927-1939 David H. McConaughy dmcconauFhy anzarfreldhecht. coin Please accept this letter as an appeal of the City's decision dated August 19, 2009, regarding this firm's application for a code interpretation dated July 20, 2009, on behalf of MD 1, LLC. For ease of reference, we enclose copies of the November 5, 2008 pre -application conference summary, this firm's letter of July 20, 2009, and the City's decision dated August 19, 2009. We have also included additional documents identified below that were already in the City's possession and, based on the decision, appear to have been relied upon by the Community Development Department. This appeal is submitted pursuant to Section 26.316.030(A) of the Aspen City Code. Issues for Appeal 1. The Community Development Department did not answer Questions 1, 2 or 3. The application presented four questions regarding specific provisions of the City Code and a fifth, general question regarding the land use entitlements for certain property described in the application. The response was silent regarding the first three questions. 2. The City Council should reverse the decision of the Community Development Department regarding Question 4 because Matchless .Drive is not a dedicated, vacated, or proposed right-of-way. 3. The City Council should clarify the response to Question 5 by confirming that the property is eligible for administrative review under the Growth Management Quota System described in Chapter 26.470 of the City Code. . 390542-1 Printed on recycled paper City of Aspen GARFIELD &HECHT, P.C. September 1, 2o09 .f4 Page 2 of 4 Law and Argument Issue No. 1 City Code Section 26.306.010 provides that any real property owner in the City may apply for an interpretation of any provision of Title 26 of the City Code. Question 1 of the application included a specific request to interpret Code Section 26.710.040. Question 2 requested an interpretation of Title 26 regarding the absence of any provision to dissolve a lot line between contiguous parcels without formal action or notice. Question 3 presented a specific question regarding Code Section 26.312.050. The decision of the Community Development Department was silent as to all three questions. Accordingly, we request that the City Council either answer the questions or direct the Community Development Department to provide an interpretation as required by Section 26.306.010. Issue No. 2 In response to Question No. 4, the Community Development Department cited three code sections in support of its contention that the "Northerly Parcel" has no floor area because the subject parcel is a "vacated right-of-way" or an "existing or proposed dedicated right-of-way." As' recognized by the City, the subject parcel was created by virtue of the enclosed Amended Decree Quieting Title dated July 10, 2008. The legal description attached to the decree as Exhibit A confirms that the parcel was once a portion of Silver King Drive alkla Matchless Drive as shown on the plat approved by Pitkin County before the land was annexed to the City of Aspen. An excerpt from the recorded plat is also enclosed. It is undisputed that the portion of Matchless Drive that became the Northerly Parcel was never actually dedicated to, nor accepted by, either Pitkin County or the City of Aspen. Neither the City nor the County ever took any formal action to vacate the right-of-way, because it was never dedicated in the first place. As such, the City cannot rely on the portions of Code Section 26.757.020 referring to a "vacated right-of-way" or a "dedicated right-of-way." The question, therefore, is whether the portion of Matchless Drive shown on the plat can be considered a "proposed right-of-way" for purposes of Section 26.757.020. Such an interpretation defies both law and common sense for a number of reasons. First, the word "proposed" must be interpreted to apply to the time of the application. Land use applications typically go through a number of iterations before reaching the stage of final plat. The location and dimensions of lots and streets will change from sketch plan through final approval, and lots shown on a final plat may overlap areas that were considered or proposed as roads early in the process. As a practical matter, a "proposed right-of-way" cannot possibly include every square foot of land that was ever considered as a road in any context, especially 465447-1 P230 City of Aspen September 1, 2009 GARFIELD & HECHT, P.C. Page 3 'of 4 where the City has explicitly rejected such a proposal. Instead, this section must be interpreted to apply to lands that are currently proposed as future rights -of -way so that the public's future right of access will not be impaired by development. Second, any proposal for the dedication of Matchless Drive was made prior to the date the plat was approved by Pitkin County in 1964 and was subject to conditions that were never fulfilled. The County never accepted any dedication, and any contractual duties of the original developer to fulfill any such conditions would have become unenforceable due to the statute of limitations more than 40 years ago. There is no current proposal. Third, even if there were a "proposal" for dedication, such a proposal would have been made to Pitkin County, not the City of Aspen. Any such proposal to Pitkin County is not relevant under the City Code. Finally, and most importantly, the City affirmatively disclaimed any interest in the subject parcel by filing the enclosed unconditional Disclaimer in Case No. 06-CV-165 on July 31, 2006. Even if there had been a lingering "proposal" for future dedication, it was extinguished as of that date. Under the doctrines of res judicata and collateral estoppel, the City cannot now take a position contrary to what was litigated, or what could have been litigated, in the quiet title case. As of the date of the application, the Northerly Parcel is not a vacated right -of --way, a dedicated right-of-way, or a proposed right-of-way. Accordingly, the conclusion that the parcel has no floor area on this basis must be reversed. Issue No. 3 The Community Development Department determined that the parcel is not eligible for development because it has never received a Growth Management review under Chapter 26.470 of the City Code. Pursuant to Section 26.470.060, assuming that the applicant desires to apply for a single-family home or a duplex, -the parcel should be eligible for administrative review subject only to the construction of an ADU in order to meet affordable housing requirements. We request confirmation of this interpretation. Conclusion The City Council should direct the Community Development Department to respond to Questions 1, 2 and 3 as presented in the application. The applicant reserves the right to file a future appeal depending on the outcome of that response. The City Council should reverse the Community Development Department's conclusion that the Northerly Parcel has no associated floor area. 465447-1 ® Printed on recycled paper • P 2 31 GARFIELD & HECHT, P.C. City of Aspen September 1, 2009 Page 4 of 4 The City Council should clarify that an application for Growth Management approval for a single family home or duplex may be processed on an administrative basis subject only to affordable housing requirements. We look forward to presenting this appeal to the City Council. Thank you for your time and attention. Very truly yours, Garfield & Hecht, P.C. bid �/t � David H. McConaughy DHM:lp Enclosure(s) cc: MD 1, LLC 465447-1 6) Printed on recycled paper P232 •4` `g �� S GARFIELD &HECHT, P.C. City of Aspen July 20,2009 Page 2 of 3 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 4,50D 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 Parcel C is a common element owned in equal undivided interests by both Party I 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 ofproperty? 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 an recycled paper ��C-C� P233 to City of Aspen 20, GA UIELD & HECHT, P.C. lair Page Zoos 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, EMS Enclosure(s) Cc: MD 1, LLC 450346-1 ® Printed on recycled paper P234 • CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Jessica Garrow, 429-2780 PROJECT: 9130 Gibson REPRESENTATIVE: Stan Clawson, 925.2323 DATE: November 5, 2008 DESCRIPTION: The Applicant is interested in better understanding what can be done on the property located at 980 Gibson. 980 Gibson is a comer 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.CDm/deptsl4 1 /main planning.cfm. Relevant Land Use Code Section(s): 26.104,100 Definitlons, 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:Ilwww.aspenpitkin.com/depts/3Bfcitycode.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 B 1/2" by 11" vicinity map locating the parcel within the City of Aspen. ❑ Site improvement surrey 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. P 2 3 6 •�� CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION.- City of Aspen APPLICABLE CODE SECTIONS: EFFECTIVE DATE: WRITTEN BY: &&LAPPROVED BY: COPIES TO: City Attorney City Planning staff 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 August 19, 2009 Jennifer Phelan, Community Development Deputy Director Jessica Garrow, Long Range Planner Chris Bendon, Community Development Director SUMMARY: eing issued in response to an inquiry with regard to the This Land Use Code interpretation is b `parcel' created as a result of MD1 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-165. The requester shall have the right to appeal this code interpretation, as outlined below. BACKGROUND: terpretation is t The purpose of this ino 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. 0 P237 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 r1.2ht of way or within an existing or proposed dedicated rig ht-ofwav or surface easement. ... C. Section 26.104.100, Definitions — Right -of -Way. and/or A strip or other area of land specifically designated or reserved for travel, passage, g > 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 and thereforen a does not proposed on nbute to floor excluded eaecalculations. Citation C floor area purposes 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 and area that MDl LLC received through the Quiet Title It is Staffs interpretation that the L 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 P238 • �Ky�,g��t1 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 Or 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. • RECEPTION#: 550853, 07/09/2008 at 02:10:07 PM, 1 OF 5, Janice K. Vos Caudill, Pitkin County, CO Court 506 East b1ain Street Aspen, CO 81611 MD1 LLC a Colorado limited liability company, and, VAN METER FAMILY LIVING TRUST, a California Trust V. Defendant(s): The CITY OF ASPEN, LUKE W. ANTHONY, or his heirs, successors, or assigns; and all unknown persons who claim any interest in the subject matter of this action. The Honorable Denise K. Lynch On Plaintiffs' Motion for SurrunaryJud„grnent P239 I R $26.00 V2 COURT USE ONLY Case Number. 06 CV 165 Division: AMENDED DECREE QUIETING TITLE IN PLAINTIFFS and CORRECTING CLE RI CAL ERRORS The matter was before this Court on Plaintiffs' Motion for Summary Judgment. Based upon the pleadings that have been filed and the affidavits and exhibits admitted into evidence, THIS COURT FII�IDS: THAT service under Rule 4 of the Colorado Rules of Civil Procedure is proper upon all of the Defendants in this action; THAT the legal description in the first decree contained clerical errors, which are fixed in Revised Exhibit A and Revised Exhibit B, attached hereto, pursuant to the Croup's authority under GRC.P. Rule 60(a); THAT MD 1 LLC and its predecessors in interest have adversely possessed the property described in Revised Exhibit A (the "Northerly Parcel"), attached hereto, for a tune in excess of the periods of the statutes of limitation, as provided in C.R.S. §§ 38-41-101, etseq.; THAT the Van Meter Family Living Trust and its predecessors in interest have adversely possessed the property described in Revised Exhibit B (the "Southerly Parcel"), attached hereto, for a time in excess of the periods of the statutes of limitation, as provided in C R S.wmx CQMl31NE0 AZOIELD COUNTY say ni r=uwttoD 99ptt�OLOMOO Alternate finding for Plaintiffs' title derived through re Cer� 6 original Inmy Cued a1anlId correct Copy of the 7 i�li0� P240 • • �� RECEPTION#: 550853, 07/09/200B at 02:10 : 07 PM, 2 OF 5 f Janice K. Vos Caudill, Pitkin County, CO MDL et aL v. Aspen, et aL Pitlan County District Court, Case No. 06 CV 165 Decree Quicdag Title in Plaintiffs Page 2 of 5 THAT MD1 LLC is the owner of the Northerly Parcel by reason of that certain bargain and sale deed from Luke W. Anthony, dated September 14, 2007, and recorded in the real property records of Piddn County, Colorado on November 9, 2007, at Reception No. 543962; THAT the Van Meter Family Living Trust is the owner of the Southerly Parcel by reason of that certain bargain and sale deed from Luke W. Anthony, dated September 14, 2007, and recorded in the real property records of Pitkin County, Colorado on November 9, 2007, at Reception No. 543963; THAT none of the Defendants has responded to the Complaint or entered an appearance in this action and all the Defendants are therefore in default, with the exception of the City of Aspen and Luke W. Anthony, both of whom disclaimed all interest in the Northerly Parcel and Southerly Parcel; THAT Daniel D. LeMoine, Esq., has been appointed and appeared for any and all Defendants who are in, or who may be in, or who may have been ordered to report for induction into, the military service, as defined by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended; thereof; THAT this is an action in nvnaffecting specific real property, THAT the Court has jurisdiction over all parties to this action and of the subject matter THAT the allegations in the Complaint are true; and THAT no Defendant herein has any right, title, or interest in or to the Northerly Parcel or Southerly Parcel. THEREFORE IT IS ADJUDGED AND DECREED THAT: MD1 LLC was, at the time of the filing of the Motion for Summary Judgment, and is now, the owner in fee simple absolute with right to possession of the Northerly Parcel; - The Van Meter Family Living Trust was, at the time of the filing of the Motion for Summary Judgment, and is now, the owner in fee simple absolute with right to possession of the SOuthen Parcel; and s RECEPTION#: 550853, 07/09/2008 at 02:10:07 PM, 3 OF 5, Janice K. Vos Caudill, Pitkin County, CO MD et A v. Aspen, et A Piddn Count3rDistrict Court, Case No. 06 CV 165 Decree Quieting Tide in Plaintiffs Page 3 of 5 Fee simplytide in and to the Northerly Parcel and Southerly Pagel be and the same hereby quieted in MD1 LLC and the Van Meter Family Livi 'Trust, respectively, and that each of the Defendants has no right, title, or interest in or to the Northerly Parcel or Somherly Parcel, or any part thereof, and that Defendants are forever enjoined from asserting any claim, right, tide, or interest in or to the Northerly Parcel or Southerly Parcel or any part thereof. Signed this �D day of July, 2008. By the Court: Denise K. Lynch, District Ju P241 • P242 RECEPTION#: 550853, 07/09/200B at 02:10:07 PM, 4 OF 5, Janice K. Vos Caudill, Pitkin County, CO MD1, et A v. Aspen, et 21. Pir_lan CounryDistrict Covet, Case No. 06 CV 165 Decree Quieting Title in Plaintiffs Page 4 of 5 EXHIBIT A PROPERTY DESCRIPTION OF NORTHERLY PARCEL A parcel of being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado, as shown on the plat thereof recorded at Reception No. 118173 in the offices of the Clerk and Recorder of Pitkin County, said drive more commonly known as Matchless Drive in the City of Aspen, said parcel being more particularly described as follows: Beginning at the westerl),most comer of Lot 3 of said Alpine Acres Subdivision, a No. 5 Rebar found in place; thence S. 48150'17" E., along the southwesterly Line of Lot 3 a distance of 63.02 feet thence S. 65'55'41" W. a distance of 66.07 feet to the northeasterly line of Lot 1 of said Alpine Acres Subdivision; thence N. 48°50'17" W. a distance of 123.75 feet to a No. 5 Rebar, thence S82059'52" E. a distance of 106.85 feet to the point of beginning, said parcel containing 5,603 square feet, more or less. RECEPTION#: 550853, 07/09/20DB at 02:10:07 PM, 5 OF 5, Janice K. Vos Caudill, Pitkin County, CO MD L ct aL v. Aspen, et aL Pitldn County District Court, Case No. O6 CV 165 Decree Quieting T"rrle in Plaintiffs Page 5 of 5 EXHIBIT B 4F,4 �BF5IP211 , PROPERTY DESCRIMON OF SOUTHERLY PARCEL A parcel of being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado, as shown on the plat thereof recorded at Reception No. 118173 in the offices of the Clerk and Recorder of Pitkin County, said drive more commonly known as Matchless Drive in the City of Aspen, said parcel being more particularly described as follows: Beginning at the southwesterly line of Lot 3 of said Alpine Acres Subdivision, from which the westerly most comer of said Lot 3 bears N. 48°50'17" W. a distance of 63.02 feet; thence S. 48°50'17" E., along the southwesterly lines of Lot 3 and Lot 2 of said Alpine Acres Subdivision a distance of 102.04 feet to the centerline of an existing drainage; thence S. 56°3627" W along said drainage a distance of 22.65 feet; thence S. 53034'06" W. along said drainage a distance of 26.11 feet; thence S. 17052'03" W. along said drainage a distance of 13.79 feet to the northeasterly line of Lot 1 of said Alpine Acres Subdivision; thence N. 48°50'17" W. along said northeasterly line distance of 12353 feet; thence N. 65055'41" E. a distance of 66.07 feet to the point of beginning, said parcel containing 6,548 square feet, more or less. 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P/rC/o c.rr/ tAvt rsc<r✓st .//:u r^I��dsr /D - ---- -- --------------------------- -- - -- - P246 Pitldn County District Court 506 East Main Street Aspen, CO 81611 Plaintiffs: NEDI LLC, a Colorado limited liability company; and, VAN METER FAMILY LIVING TRUST, a California Trust V. Defendants): The CITY OF ASPEN; LUKE W. I. COURT USE ONLY I► ANTHONY or his heirs, successors, or assigns; and all unknown persons who claim any Case Number: 06 CV 165 interest in the subject matter of this action Attorney for City of Aspen: John P. Worcester 130 S. Galena Street 2"d Floor Aspen, Colorado 81611 Tel: 970.920.5055 Fax: 970.920.5119 1peck@brai)dt-law.com Arty. Reg. # 20610 Division: DISCLAIMER UNDER RULE 105 COMES NOW, John Worcester, on behalf of defendant City of Aspen, disclaiming any and all interest in the property at issue in this matter and thereby relieving the City of Aspen of any liability for the costs of this action. C.R-C.P. 105(c). Dated: 14 ? 1, Z60 gY Worcester, dty attorney • P 2 4 7 Sections: Chapter 26.316 APPEALS 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26.316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Board _ of Adjustment, Growth Management Commission, the Planning and Zoning Commission, and City Council to hear and decide certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002) 26.316.020 Authority. A. Board ofAdjustment. The Board of Adjustment shall have the authority to hear and decide the following appeals: 1. The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission or Historic Preservation Commission. B. City Council. The City Council shall have the authority to hear and decide the following appeals: 1. An interpretation to the text of this title or the boundaries of the zone district map by the Community Development Director in accordance with Chapter 26.306. An appeal of this nature shall be a public meeting. .2. Any action by the Historic Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H,", Historic Overlay District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting. 3. The scoring determination of the Community Development Director pursuant to Chapter 26.470.. An appeal of this nature shall be a public meeting. 4. The allocation of Growth Management Allotments by the Planning and Zoning Commission pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 5. Any other appeal for which specific authority is not granted to another board or commission as established by this title. An appeal of this nature shall be a public meeting. C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the authority to hear and decide an appeal from an adverse determination by the Community Development Director on an application for exemption pursuant to the growth management quota system in accordance with Section 26.470.060(D). City of Aspen Land Use Code. August, 2007. Part 300, Page 35 P 2 4 8 • t- �� D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority to hear an appeal from any decision or determination made by an administrative official unless otherwise specifically stated in this title. (Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002) 26.316.030 Appeal procedures. A. Initiation. 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. B. Effect of filing an appeab The filing of a notice of appeal shall stay any proceedings in furtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision -making body authorized to hear the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision making body with authority to hear the appeal may review • such certification and grant or deny a stay of the proceedings. C. Timing of appeal The decision -making body authorized to hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.060(E)). E. Standard of review. Unless otherwise specifically stated in this title, the decision -making body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. F. Action by the decision -making body hearing the appeal The decision -making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision=making body may also elect to remand an appeal to the body that originally heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals shall be public meetings. (Ord. No'. 55-2000, §§ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002) City of Aspen Land Use Code. August, 2007 Part 300, Page 36 • P249 t=���Z October 5, 2009 Mr. David McConaughy Garfield and Hecht, P.C. THE CITY OF ASPEN 601 E. Nyman Ave. Aspen, CO 81611 RE: APPEAL OF AN INTERPRETATION (980 Gibson) Dear David, As required per Section 26.316.020 D., Notice Requirements, of the land use code notice is hereby given that a public hearing will be held on Monday, October 26, 2009, to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen. The purpose of the hearing is to consider an appeal of an Interpretation submitted by you on behalf of MDl,LLC. The Interpretation provided information on the development rights associated with land that was acquired by quiet title, specifically, that the land has no associated floor area. The request of the applicant is to reverse the Community Development Director's interpretation on floor area and respond to certain additional questions. The subject land under.review is adjacent to 980/990 Gibson and 1040 Matchless Drive and is generally described as a parcel being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado as shown on the plat thereof recorded at Reception No. 118173, said drive more commonly known as Matchless Drive. For further information, please feel free to contact me at 970.429.2759 or by email Jennifer.PhelanQci.aspen.co.us. A memo will be emailed to you in the near future. Regards, Jenifer Phelan Deputy Director 130 SOUTH GALENA STREET ASPEN, COLORADO 81611-1975 • PHONE 970.920.5000 • FAx 970.920.5197 www.aspen-ov.com Printed on Recycled Papa MM J f= O 0 3 y � n C C3 m c � CD 11..E cD w Ll J7 LU Q, J7 ru f1J 03 -0 J7 rij N I n � C� • > Z� h V (n 1:3ni ®_ d � w ' w �t w Ir FU n, -- w -0 • Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas, and COWAPs are subject to this notice requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. G Signat e 4 The foregoin "Affidavit of Notice" was ac owledged before this Y day of 2' -O , 200_�2, by PUB Ir NOTICE APP AL OF AN INTERPRETATION WITNESS MY HAND AND OFFICIAL SEAL RE: NOTICE IS HER Y GIVEN that a public hearing will be held on onday, October 26, 2009. to begin at 5:00 P. . before the Aspen % City Council Ch bets, City Hell, SS Galena St., Aspen, I consider an appeal of an Community My commission expires: O�5 lU Interpretetio issued by the Development Director, submitted by David behalf of MD1, LLC., 109 AS - Mcconaughy on Aspen, CO 81611. The Ie rpretatlon provided development rights associated information on the with land that was acquired by quiet title, specifically, that the land has no associated floor the Notary Public area. The request of the applicant is to reverse Community Development Directoris Interpretation floor area and respond to certain additional fs �Rl' p( f h on questions. The sub) act land under re view Gibson and 1 Matchless Qe• • •• t adjacent to 980/990 a Acrearcel s Drive and is generally described as a AI �' • •% C) of silver King Drive, Block 1, P ine Subdivision, City of Aspen, County of Pltkin. Slate Subdivision, the thereof C'^ UF of Colorado as shown on plat at Reception No. 118173, fvecmoed known as Matchless Drive. For further p vc 1 C. ; i�C I G>� commonly information, contact Jennifer Phelan at the City of Aspen Community Development Department, 130 by ATTACHMENTS AS APPLICABLE••., e° S. Galena St., Aspen, CO 970.429.2759. (or Ph nn co us1. �•r1,_ „ email Jennifer tE PUBLICATION _m;;;..hYef r, Ireland. Chair Aspen Clty Councfi on October PH OF THE POSTED NOTICE (SIGA9 P' b2ssh0eed inn1t273Aspen Times Weekly EOWNERSAND GOVERNMENTAL AGENCIES1�i10'?Qi0 1 B Y MAIL CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE • APPLICANT AS REQUIRED BY C.R.S. §24-65.5-103.3 P252 • 0 F_*5T-E_t_ ASPEN OFFICE 601 East Hyman Avenue Aspen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3009 GLENWOOD SPRINGS OFFICE The Denver Centre 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD &,HECHT, P.C. ATTORNEYS AT LAW Since 1975 www. garfieldhecht.com October 9, 2009 ttni_fer Phelan, Deputy Director of Community Development Jim. True, Esq., Assistant City Attorney oi'Aspe AsDen, CO 81611 Re: 980 Gibson Avenue Dear. Ms. Phelan and Mr. True: AVON OFFICE 0070 Benchmark Road Post Office Box 5450 Avon, Colorado 81620 Telephone (970) 949-0707 Facsimile (970) 949-1810 BASALT OFFICE River View Plaza 100 Elk Run Drive, Suite 220 Basalt, Colorado 81621 Telephone (970) 927-1936 Facsimile (970) 927-1939 David H. McConaugh), Glenwood Springs Office dnicconauehl)Ca'zarf.eldh echL com 'thank you for the recent meeting regarding the pending appeal of the City's band Use Code Interpretation regarding property owned by our client, MD 1, LLC., As we discussed, our client's goal is to determine the. development rights and floor area associated - w-ith the "Northerly Parcel" in, - MD which title was quieted in D .1's name. - That determination will provide guidance to MD 1 prior to submitting any future development application. Our client is considering an application to amend the final plat for Lot 1, Block 1 of Alpine Acres and create a new plat that would encompass all of Lot 1 (which includes two condominium units in addition to common elements), plus the Northerly Parcel. The owner of the adjacent "Southerly Parcel" may or may not seek to include that land as well, but we do not represent that owner and make no representations concerning the Southerly Parcel. This proposal is only conceptual, and no application is submitted at the current time. Our original application for a Land Use Code Interpretation presented five separate questions. The first three questions all related to whether the Northerly Parcel is a separate buildable lot today in its current state. The City declined to answer those questions and instead focused on the last tuio questions, which related to floor area and development rights for the Northerly Parcel. During our meeting, you agreed that the Northerly Parcel would, in fact, have associated floor area unless it is determined to be a "proposed right-of-way." You further suggested that the City might be open to reconsidering this issue following research to detemiine whether there would be any risk of creating precedent for other undeveloped rights -of -way elsewhere in the ® Printed on recycled paper • GARFIELD & HECHT, P.C. 'ZP-.253 City of Aspen October 9. 2009 Page 2 of 3 City. Given the unique litigation history of the Northerly Parcel, we hope you now agree that creating precedent for other parcels should not be a concern. We continue to maintain that the Northerly Parcel is a separate, developable lot. However, we acknowledge that the City Staff disagrees with this position and believes that the Northerly Parcel should somehow be merged into the adjacent Lot 1 as an extension of the back yard and not be considered as a distinct lot. We, in turn, have asserted arguments as to why merger cannot have occurred. Regardless, if our client were to proceed with a subdivision application that redrew the lot lines for Lot 1 and the Northerly Parcel, this issue would be hoot, and the boundaries and dimensions of any new lots would be defined by a new plat to be approved by the City. In th, interest of avoiding controversy over a scenario that may never come to pass. MD I requests that the City Council consider its appeal of Questions 4 and 5 f rst. On these issues, 1 have enclosed a draft "Amended Interpretation" for your consideration. As you will see, the Amended Interpretation provides that some floor area would be associated with the Northerly Parcel, but it acknowledges that the first three questions would be moot if MD 1 pursues an application for an amended plat. If the City Council were to make a decision on Questions 4 and 5 that is acceptable to MD 1, MD 1 would request that the Council hold its appeal in abeyance on Questions 1, 2, and 3 until such time as the property owner processes an application for an amended plat. In order to preserve the rights of both the City and the Applicant on the first three questions, I propose that we enter into a simple tolling agreement with respect to any appeal deadlines (covering the appeal deadlines applicable to appeals that would be heard by the City Council and the District Court). MD 1 could then process an application for an amended plat with knowledge of its rights, and the new final plat could be a benefit for both the City and the Applicant while simultaneously resolving any ambiguities about future development. To this end, I enclose the above -referenced draft "Amended Interpretation" for your consideration. if ibis document (or something similar) could be approved on a stair level, thell we could avoid an appeal altogether. If that is not an option, then -our -goal -would be to have the staff s support at the City Council hearing on October 26, 2009 for both the issuance of the Amended Interpretation and a tolling agreement for the other 3 questions. I welcome your comments and any suggested revisions in furtherance of that goal. Otherwise, please submit the enclosed draft to City Council for its consideration. Either way, unless we can resolve this issue on a staff level and avoid the appeal hearing, I request that Council consider the appeal of Questions 4 and 5 before considering Questions 1, 2, or 3. 479395-1 ® Printed on recycled paper P254 • City of Aspen October 9, 2009 GARFIELD & HECHT, P.C. Page 3 of 3 Thank you. I look forward to hearing from you soon. Very truly yours, DHM:lp Enclosure(s) cc: MD 1, LLC 478395-1 ® Printed on recycled paper CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT AMENDED LAND USE CODE INTERPRETATION October 9, 2009 SUMMARY: This Amended Land Use Code Interpretation is being issued in response to an inquiry with respect to certain real property described in the Amended Quiet Title Decree entered in Pitkin County District Court Case No. 06-CV-165. The request was filed by David McConaughy of Garfield & Hecht, P.C., on behalf of the owner of the "Northerly Parcel" described in such decree, which is MD 1, LLC. This Amended Interpretation supersedes and replaces the Land Use Code Interpretation issued on August 19, 2009. BACKGROUND: The purpose of this interpretation is to explain the development rights 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 identified on the plat of Alpine Acres Subdivision as a right-of-way called Silverking Drive. Silverking Drive was conditionally proposed for dedication to Pitkin County for public use when the Alpine Acres plat was approved in 1964. The Alpine Acres Subdivision was annexed by the City in 1976. The right-of-way was never constructed, and the conditions of dedication were never fulfilled. Neither the County nor the City ever accepted any dedication of the right-of-way. MD 1, LLC also owns Unit 1, Lot 1, Block 1 of Alpine Acres, which is a condominium unit. The property outside the building footprint of the condominium unit is a limited common element owned jointly by MD 1, LLC and the owner of Unit 2. The Northerly Parcel is adjacent to the portion of Lot 1 designated as a limited common element on the condominium plat. Case No. 06-CV-165 was an adverse possession case in which MD1, LLC and its predecessor owners of Unit 1 asserted they had used, occupied and possessed the area of the Northerly Parcel for more than 18 years. On July 31, 2006, the City filed a "Disclaimer" of any interest in the subject parcel in Case No. 06-CV-165. Subsequently, the Pitkin County District Court issued its Decree vesting title in the subject parcel in MD 1, LLC. The subject property is zoned R-6. The Amended Quiet Title Decree is silent as to any development rights that may be associated with the Northerly Parcel. By letter from Garfield & Hecht, P.C. dated July 20, 2009, the Applicant presented five requests for interpretation of the Land Use Code regarding development rights associated with the Northerly Parcel. The first three questions all related to whether the Northerly Parcel is a distinct lot or legal parcel that may be sold or developed separately from the adjacent property that is currently platted as condominium units and common elements. The fourth and fifth questions related to floor area and development rights associated with the Northerly Parcel. 478386-2 P256 • `j • Since the original Interpretation was issued on August 19, 2009, the Applicant has stated its desire to amend a portion of the plat for Alpine Acres such that the lot lines between the condominium units, the common elements, and the Northerly Parcel would all be merged and reestablished so as to reconfigure the lots and, potentially, to seek City approval of a new plat depicting three or more new, separate lots. If the Applicant chooses to pursue this approach, then the first three questions would become moot, and the remaining issue would be what development rights are associated with the land currently described as the Northerly Parcel. Accordingly, this interpretation will address Questions 4 and 5 of the application. DISCUSSION: The following sections of the Land Use Code have been considered. 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 according to the chart set forth at Section 26.710.040(D)(11). 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-way, or within an existing or proposed dedicated right-of-way.... C. Section 26.470.060 — Administrative Applications for Growth Management Review Citation A provides a table to calculate floor area based on lot size. The Northerly Parcel is 5,603 square feet. Pursuant to the table, this equates to 3,240 square feet of floor area. Citation B states that any area within a proposed right-of-way is excluded from total Lot Area for floor area purposes. Chapter 26.470 of the City Code requires a Growth Management allotment or exemption for all new development. Citation C provides several options for administrative approval of a Growth Management allotment for single-family or duplex residences. INTERPRETATION: If the Applicant applies for subdivision approval to amend the plat of Alpine Acres for Lot 1 and the Northerly Parcel, the inclusion of the Northerly Parcel would create development rights for up to 3,240 square feet of additional floor area. The precise amount of floor area would depend, in part, on the dimensions of any new lots approved through the subdivision process under the City Code. Such an application would be subject to all applicable procedures and restrictions set forth in the City Code. While the Northerly Parcel may have been identified on the Alpine Acres Subdivision Plat as a "proposed right-of-way" when the plat was recorded in 1964, there is no current proposal for right-of-way dedication, and both the City and the District Court have confirmed that title is now vested in the Applicant as private property. Accordingly, Citation B does not apply. 478386-2 As part of any subdivision or development application, the Applicant would need to comply with Chapter 26.470 of the City Code. However, the property would be eligible for administrative review under Citation C. 478386-2 P258 9 10 MEMORANDUM TO: Mayor Ireland and City Council I THRU: Chris Bendon, Community Development Director FROM: Jennifer Phelan, Community Development Deputy Director RE: MD1, LLC Appeal (980 Gibson) MEETING DATE: October 26, 2009 (continue to 11/23/09) GENERAL BACKGROUND: On August 19`h of 2009, the Community Development Director issued and administrative Interpretation (Exhibit 1) with regard to land that was gained by MDI, LLC through a Quiet Title decree (MDI LLC, et al. v. the City of Aspen). The Applicant is appealing staffs Interpretation; however, the Applicant has agreed to continue the Appeal to November 23`d in light of October 26`h's large agenda. RECOMMENDATION: Staff recommends continuing the appeal to November 23rd. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions must be made in the positive) "I move to continue the Appeal submitted by MD 1, LLC, to November 23, 2009" ASPEN OFFICE 601 East Hyman Avenue Aspen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3008 GLENWOOD SPRINGS OFFICE The Denver Centre 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 • • Bn°OFFICE GAR&,P.C. 0070 hkRoad Post Office Box 5450 ATTORNEYS AT LAW Avon, Colorado 81620 Since 1975 Telephone (970) 949-0707 Facsimile (970) 949-1810 www.garfieldhecht.com BASALT OFFICE River View Plaza 100 Elk Run Drive, Suite 220 Basalt, Colorado 81621 Telephone (970) 927-1936 Facsimile (970) 927-1939 October 9, 2009 David H. Mc•Conaughy Glenwood Springs Office dmc eo n auph Kd)eu~ ech t. com Jenifer Phelan, Deputy Director of Community Development Jim True, Esq., Assistant City Attorney City cf' A Sper, Aspen, CO it 1611 Re: 980 Gibson Avenue Dear Ms. Phelan and Mr. True: "Thank you for the recent meeting regarding the pending appeal of the City's Land Use Code Interpretation regarding property owned by our client, MD 1, LLC. As we discussed, our client's goal is to determine the development rights and floor area associated with the "Northerly Parcel" for which title was quieted in, MD 1's name. That determination will provide guidance to MD 1 prior to submitting any future development application. Our client is considering an application to amend the final plat for Lot 1, Block 1 of Alpine Acres and create a new plat that would encompass all of Lot l (which includes two condominium units in addition to common elements), plus the Northerly Parcel. The owner of the adjacent "Southerly Parcel" may or may not seek to include that land as well, but we do not represent that owner and make no representations concerning the Southerly Parcel. This proposal is only conceptual, and no application is submitted at the current time. Our original application for a Land Use Code Interpretation presented five separate questions. The first three questions all related to whether the Northerly Parcel is a separate buildable lot today in its current state. The City declined to answer those questions and instead focused on the last two questions, which related to floor area and development rights for the Northerly Parcel. During our meeting,, you agreed that the Northerly Parcel would, in fact, have associated floor area unless it is determined to be a "proposed right-of-way." You further suggested that the City might be open to reconsidering this issue following research to determine whether there would be any risk of creating precedent for other undeveloped rights -of -way elsewhere in the ® Printed on recycled paper City of Aspen GARFIELD & HECHT, P.C. ° °page z of3 City. Given the unique litigation history of the Northerly Parcel, we hope you now agree that creating precedent for other parcels should not be a concern. We continue to maintain that the Northerly Parcel is a separate, developable lot. However, we acknowledge that the City Staff disagrees with this position and believes that the Northerly Parcel should somehow be merged into the adjacent Lot 1 as an extension of the back yard and not be considered as a distinct lot. We, in turn, have asserted arguments as to why merger cannot have occurred. Regardless, if our client were to proceed with a subdivision application that redrew the lot lines for Lot 1 and the Northerly Parcel, this issue would be moot, and the boundaries and dimensions of any new lots would be defined by a new plat to be approved by the City. In the interest of avoiding controversy over a scenario that may never come to pass, MD 1 requests that the City Council consider its appeal of Questions 4 and 5 first. On these issues, 1 have enclosed a draft "Amended Interpretation" for your consideration. As you will see, the Amended Interpretation provides that some floor area would be associated with the Northerly Parcel, but it acknowledges that the first three questions would be moot if MD 1 pursues an application for an amended plat. If the City Council were to make a decision on Questions 4 and 5 that is acceptable to MD 1, MD 1 would request that the Council hold its appeal in abeyance on Questions 1, 2, and 3 until such time as the property owner processes an application for an amended plat. In order to preserve the rights of both the City and the Applicant on the first three questions, I propose that we enter into a simple tolling agreement with respect to any appeal deadlines (covering the appeal deadlines applicable to appeals that would be heard by the City Council and the District Court). MD 1 could then process an application for an amended plat with knowledge of its rights, and the new final plat could be a benefit for both the City and the Applicant while simultaneously resolving any ambiguities about future development. To this end, I enclose the above -referenced draft "Amended Interpretation" for your consideraiion. if this document (or something similar) could lac approved oil a staff level, then we could avoid an appeal altogether. If that is not an option, then our goal would be to have the staff's support at the City Council hearing on October 26, 2009 for both the issuance of the Amended Interpretation and a tolling agreement for the other 3 questions. I welcome your comments and any suggested revisions in furtherance of that goal. Otherwise, please submit the enclosed draft to City Council for its consideration. Either way, unless we can resolve this issue on a staff level and avoid the appeal hearing, I request that Council consider the appeal of Questions 4 and 5 before considering Questions 1, 2, or 3. 478395-1 ® Printed on recycled paper • GARFIELD & HECHT, P.C. Thank you. I look forward to hearing from you soon. Very truly yours, DHM:lp Enclosure(s) cc: MD 1, LI,C City of Aspen October 9, 2009 Page 3 of 3 478395-1 ® Printed on recycled paper CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT AMENDED LAND USE CODE INTERPRETATION October 9, 2009 SUMMARY: This Amended Land Use Code Interpretation is being issued in response to an inquiry with respect to certain real property described in the Amended Quiet Title Decree entered in Pitkin County District Court Case No. 06-CV-165. The request was filed by David McConaughy of Garfield & Hecht, P.C., on behalf of the owner of the "Northerly Parcel" described in such decree, which is MD 1, LLC. This Amended Interpretation supersedes and replaces the Land Use Code Interpretation issued on August 19, 2009. BACKGROUND: The purpose of this interpretation is to explain the development rights 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 identified on the plat of Alpine Acres Subdivision as a right-of-way called Silverking Drive. Silverking Drive was conditionally proposed for dedication to Pitkin County for public use when the Alpine Acres plat was approved in 1964. The Alpine Acres Subdivision was annexed by the City in 1976. The right-of-way was never constructed, and the conditions of dedication were never fulfilled. Neither the County nor the City ever accepted any dedication of the right-of-way. MD 1, LLC also owns Unit 1, Lot 1, Block 1 of Alpine Acres, which is a condominium unit. The property outside the building footprint of the condominium unit is a limited common element owned jointly by MD 1, LLC and the owner of Unit 2. The Northerly Parcel is adjacent to the portion of Lot 1 designated as a limited common element on the condominium plat. Case No. 06-CV-165 was an adverse possession case in which MD1, LLC and its predecessor owners of Unit 1 asserted they had used, occupied and possessed the area of the Northerly Parcel for more than 18 years. On July 31, 2006, the City filed a "Disclaimer" of any interest in the subject parcel in Case No. 06-CV-165. Subsequently, the Pitkin County District Court issued its Decree vesting title in the subject parcel in MD 1, LLC. The subject property is zoned R-6. The Amended Quiet Title Decree is silent as to any development rights that may be associated with the Northerly Parcel. By letter from Garfield & Hecht, P.C. dated July 20, 2009, the Applicant presented five requests for interpretation of the Land Use Code regarding development rights associated with the Northerly Parcel. The first three questions all related to whether the Northerly Parcel is a distinct lot or legal parcel that may be sold or developed separately from the adjacent property that is currently platted as condominium units and common elements. The fourth and fifth questions related to floor area and development rights associated with the Northerly Parcel. 478386-2 Since the original Interpretation was issued on August 19, 2009, the Applicant has stated its desire to amend a portion of the plat for Alpine Acres such that the lot lines between the condominium units, the common elements, and the Northerly Parcel would all be merged and reestablished so as to reconfigure the lots and, potentially, to seek City approval of a new plat depicting three or more new, separate lots. If the Applicant chooses to pursue this approach, then the first three questions would become moot, and the remaining issue would be what development rights are associated with the land currently described as the Northerly Parcel. Accordingly, this interpretation will address Questions 4 and 5 of the application. DISCUSSION: The following sections of the Land Use Code have been considered. 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 according to the chart set forth at Section 26.710.040(D)(11). 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-way, or within an existing or proposed dedicated right-of-way.... C. Section 26.470.060 — Administrative Applications for Growth Management Review Citation A provides a table to calculate floor area based on lot size. The Northerly Parcel is 5,603 square feet. Pursuant to the table, this equates to 3,240 square feet of floor area. Citation B states that any area within a proposed right-of-way is excluded from total Lot Area for floor area purposes. Chapter 26.470 of the City Code requires a Growth Management allotment or exemption for all new development. Citation C provides several options for administrative approval of a Growth Management allotment for single-family or duplex residences. INTERPRETATION: If the Applicant applies for subdivision approval to amend the plat of Alpine Acres for Lot 1 and the Northerly Parcel, the inclusion of the Northerly Parcel would create development rights for up to 3,240 square feet of additional floor area. The precise amount of floor area would depend, in part, on the dimensions of any new lots approved through the subdivision process under the City Code. Such an application would be subject to all applicable procedures and restrictions set forth in the City Code. While the Northerly Parcel may have been identified on the Alpine Acres Subdivision Plat as a "proposed right-of-way" when the plat was recorded in 1964, there is no current proposal for right-of-way dedication, and both the City and the District Court have confirmed that title is now vested in the Applicant as private property. Accordingly, Citation B does not apply. 478386-2 • • As part of any subdivision or development application, the Applicant would need to comply with Chapter 26.470 of the City Code. However, the property would be eligible for administrative review under Citation C. 478386-2 • AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: Q ` 1 ,Aspen, CO SCHEDULED P BLIC HEARING DATE: 2009 STATE OF COLORADO ) ss. County of Pitkin ) I, �1'►�oi J 0L �G6'4 " "i (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) 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 at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six ` (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing, and was continuously visible from the _ day of , 200_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records .of Pitkin County. At a minimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas, and COWAPs are subject to this notice requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. -9� Signatu e The foregoing "Affidavit of Notice" was ac owledged beforethis 0 day of 6 L , 2004�'3, by WITNESS MY HAND AND OFFICIAL SEAL My commission expires: d ,�6 11 UIa01 c) 4a�u" Notary Public (1k RY'p� %I AURA EYERATTACHMENTS AS APPLICABLE:COPY OF THE PUBLICATION�� • PHOTOGRAPH OF THE POSTED NOTICE (SIGN) '� • LIST OF THE OWNERS AND GOVERNMENTAL AGENd BY MAIL • APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BY C.R.S. §24-65.5-103.3 10 • EVA IC NOTICE RE: APP&AL OF AN INTERPRETATION NOTICE IS HEREBY GIVEN that a public hearing will be held on Monday. October 26. 2009, to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen, tq consider an appeal of an Inter rotation Issued by the Community Dee'Popment Director, submitted by David McConaughy on behalf of MD1, LLC.. 109 AABC, Aspen. CO 81611. The Interpretation provided information on the development rights associated with land that was acquired by quiet title, specifically, that the land has no associated floor area. The request of the applicant is to reverse the Community Development Directoris interpretation on floor area and respond to certain additional questions. The subject land under review is adjacent to 9801990 Gibson and 1040 Matchless Drive and is generally described as a parcel being a portion of Silver King Drive. Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado as shown on the plat thereof recorded at Reception No. 118173, said drive more commonly known as Matchless Drive. For further information, contact Jennifer Phelan at the City of Aspen Community Development Department, 130 S. Galena St.. Aspen. CO 970.429.2759, (or by email Jennifer. Phelan®ciasoen..o.i ). -tiwaliat C Ireland Chair Aspen City Council Published in the Aspen Times Weekly on October 11, 2009. (41273351 ■ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpieq� or on the front if space permits. 1. Articie Addressed to: bx�,d N166on" hv�- Gar fi eA d ILI ate(V)t , 601 r IN ii r . Asf2n,(O�IbII 2. Article Number (Transfer from service label) PS Form 3811, February 2004 A. Sigaat6re X B. Received by( Is delivery aodfess different If YES-ee ter delidn ❑ Addre C. Dat Jqof D li iv/�� below: �B No 3. Service Type %Certified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Mercha idise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 91 7108 2133 3936 9228 9192 Domestic Return Receipt 102595-02-M-1540 UNITED STATES POSTAL SERVICE First -Class Mail Postage & Fees Paid LISPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • ,lennlfo- k? 4,Ln G of Avon 1 5 . C a Aden, Co c m .-- qtr 0 opy Vi � ■ a �� 0 z 0 O 8 N VC N O a t,� (D LL Q� 0 1Nf1 0 0 7�Ell ru tr 0" c0 ru r ru n- �� .0 m Er _ m m ru ...�� cc .� O �� rl Ir z in W� w O U gv tz7 c" Z o � � s • v �v • October 5, 2009 Mr. David McConaughy Garfield and Hecht, P.C. 601 E. 'Hyman Ave. Aspen, CO 81611 RE: APPEAL OF AN INTERPRETATION (980 Gibson) Dear David, i THE CITY OF ASPEN As required per Section 26.316.020 D., Notice Requirements, of the land use code notice is hereby given that a public hearing will be held on Monday, October 26, 2009, to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen. The purpose of the hearing is to consider an appeal of an Interpretation submitted by you on behalf of MDI,LLC. The Interpretation provided information on the development rights associated with land that was acquired by quiet title, specifically, that the land has no associated floor area. The request of the applicant is to reverse the Community Development Director's interpretation on floor area and respond to certain additional questions. The subject land under review is adjacent to 980/990 Gibson and 1040 Matchless Drive and is generally described as a parcel being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado as shown on the plat thereof recorded at Reception No. 118173, said drive more commonly known as Matchless Drive. For further information, please feel free to contact me at 970.429.2759 or by email Jennifer. Phelan(a)ci.aspen.co.us. A memo will be emailed to you in the near future. Regards, Jenifer Phelan Deputy Director 130 SOUTH GALENA STREET • ASPEN, COLORADO 81611-1975 • PHONE 970.920.5000 • FAx 970.920.3197 www. aspengov.com Printed on Recycled Paper • • RECEIVED SEP 0 2 2009 CITY OF ASPEN ATTACHMENT 2 —LAND USE APPLICATION COMIVI ICY DEI LOP*V ROJECT: came: No r+e rII'I� Pare I " �e�— Co ur4 Oec reQ, P,+'m1 A D rs+. C4. 66Cv16s- .ocation: ��ei �t bSo� A-ve /45pevN Alpi'he A re-s Sub• Indicate street address, lot & block number, legal description A ere appropriate) 'arcel ID # RE UDZED C tAA Parcel CLS qJ_-e da4e herFo�, APPLICANT: dame: 1 L L ,kddress: 0 9 A 4�3 C A s h Co � 16 I' phone #: REPRESENTATIVE: \1ame: Pay A MC N V1 CL u G Ar! ' Address: Gat•eW R, tAec�t , 6014 R. [Jr44 ma.n Ave,_��\�, C U 976 f 1 Phone 4: q:'O q,� I Q 3 6j TYPE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD (& PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment [;J' Other: A PpeA I o� I Ahd ❑ Conditional Use tASe Code EXISTING CONDITIONS: (description of existing buildings, uses, previous PROPOSAL: (description of proposed buildi etc. Have you attached the following? FEES DUE: S ] Pre -Application Conference Summary ] Attachment #l, Signed Fee Agreement ] Response to Attachment #3, Dimensional Requirements Form ] Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards ] 3-D Model for large project All plans that are larger than 8.51' X 11" must be folded. A disk with an electric copy of all written text 'Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an -lectronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. 0 • RECEIVED SEP 0.1 2099 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT CITY OF ASPEN COMMUNITY DEVELOP Aereement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and M Q L L (hereinafter APPLICANT) AGREE AS FOLLOWS: ICANT has submitted to CITY an application for i I _ - - - / _ . 1 _ _ _ . . (hereinaR6r, THE PROJECT). 2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to make legally required findings for project consideration, Unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ 4 3 S which is for -�- hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reirnburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $245.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN By: Chris Bendon Community Development Director APPLICANT MD 11J LLL By: P-"I A ei_ t Au t b hArrk v -S Q Z o Date: Billing Address and Telephone Number: 109 AA 9C- op� Cd C 1 \ RECEIVED SEP 01 2009 CITY OF ASPEN ATTACHMENT 2 —LAND USE APPLICATION 10MMUNITY DMLOP*r ROJECT: dame: Par�ne " Per- Court �eCV,eP, t�;{1C�,� D;s�. C�.DGcL/rds ocation: _C}�d C} t bSOV� /��%e •, /7 Sperm AA(re-s Su�. Indicate street address, lot & block number, leg desc— .ram w ere a ro riate 'arcel ID # (REQUIRED) tV — T1-�c COt,,n 4 , Uv IDS i 4-e OJ (t e S no P are 21 J # QS o-, qA q da4e here-6K kPPLICANT: _ dame: address: C C n Y- 16 1 phone #: V REPRESENTATIVE: 'lame: 1/o") t o �p. MC C 6VAC1 t-t-G �" _ Address: Garf �,e�� (�i �AEC�t , 60l �rna✓\ Auso 45eq:n CCU Phone#: quo 5- 1�3/p TYPE Or APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ . Final PUD (& PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ F,SA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Bluff, condom i niu m ization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment 0' Other: A p peA l O� I A' ❑ Conditional Use USe code �"N i Pr +2tu {i EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) PROPOSAL: (description of proposed buildings, uses, modifications, Kave you attached the following? FEES DUE: S ] Pre -Application Conference Summary ] Attachment #l, Signed Fee Agreement ] Response to Attachment #3, Dimensional Requirements Form ] Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards ] 3-D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text "Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. E • ASPEN OFFICE 601 East Hyman Avenue Aspen, Colorado 81611 Telephone (970) 925-1936 Facsimile (970) 925-3008 GLENWOOD SPRINGS OFFICE The Denver Centre 420 Seventh Street, Suite 100 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 Chris Bendon Community Development Director City of Aspen Aspen, CO 81611 Re: 980 Gibson Avenue Dear Mr. Bendon: www.garfieldhecht.com September 1, 2009 AVON OFFICE 0070 Benchmark Road Post Office Box 5450 Avon, Colorado 81620 Telephone (970) 949-0707 Facsimile (970) 949-1810 BASALT OFFICE River View Plaza 100 Elk Run Drive, Suite 220 Basalt, Colorado 81621 Telephone (970) 927-1936 Facsimile (970) 927-1939 David H. McConaughy dmcconaueh vCw2arfreldhecht. corn RECEIVED SEP 01 2009 CITY OF ASPEN CWNITI' DMOPAW Please accept this letter as an appeal of the City's decision dated August 19, 2009, regarding this firm's application for a code interpretation dated July 20, 2009, on behalf of MD 1, LLC. For ease of reference, we enclose copies of the November 5, 2008 pre -application conference summary, this firm's letter of July 20, 2009, and the City's decision dated August 19, 2009. We have also included additional documents identified below that were already in the City's possession and, based on the decision, appear to have been relied upon by the Community Development Department. This appeal is submitted pursuant to Section 26.316.030(A) of the Aspen City Code. Issues for Appeal The Community Development Department did not answer Questions 1, 2 or 3. The application presented four questions regarding specific provisions of the City Code and a fifth, general question regarding the land use entitlements for certain property described in the application. The response was silent regarding the first three questions. 2. The City Council should reverse the decision of the Community Development Department regarding Question 4 because Matchless Drive is not a dedicated, vacated, or proposed right-of-way. 3. The City Council should clarify the response to Question 5 by confirming that the property is eligible for administrative review under the Growth Management Quota System described in Chapter 26.470 of the City Code. 390542-1 ® Printed on recycled paper GARFIELD & HECHT, P.C. Law and Arp_ument Issue No. 1 City of Aspen September 1, 2009 Page 2 of 4 City Code Section 26.306.010 provides that any real property owner in the City may apply for an interpretation of any provision of Title 26 of the City Code. Question 1 of the application included a specific request to interpret Code Section 26.710.040. Question 2 requested an interpretation of Title 26 regarding the absence of any provision to dissolve a lot line between contiguous parcels without formal action or notice. Question 3 presented a specific question regarding Code Section 26.312.050. The decision of the Community Development Department was silent as to all three questions. Accordingly, we request that the City Council either answer the questions or direct the Community Development Department to provide an interpretation as required by Section 26.306.010. Issue No. 2 In response to Question No. 4, the Community Development Department cited three code sections in support of its contention that the "Northerly Parcel" has no floor area because the subject parcel is a "vacated right-of-way" or an "existing or proposed dedicated right-of-way." As recognized by the City, the subject parcel was created by virtue of the enclosed Amended Decree Quieting Title dated July 10, 2008. The legal description attached to the decree as Exhibit A confirms that the parcel was once a portion of Silver King Drive a/k/a Matchless Drive as shown on the plat approved by Pitkin County before the land was annexed to the City of Aspen. An excerpt from the recorded plat is also enclosed. It is undisputed that the portion of Matchless Drive that became the Northerly Parcel was never actually dedicated to, nor accepted by, either Pitkin County or the City of Aspen. Neither the City nor the County ever took any formal action to vacate the right-of-way, because it was never dedicated in the first place. As such, the City cannot rely on the portions of Code Section 26.757.020 referring to a "vacated right-of-way" or a "dedicated right-of-way." The question, therefore, is whether the portion of Matchless Drive shown on the plat can be considered a "proposed right-of-way" for purposes of Section 26.757.020. Such an interpretation defies both law and common sense for a number of reasons. First, the word "proposed" must be interpreted to apply to the time of the application. Land use applications typically go through a number of iterations before reaching the stage of final plat. The location and dimensions of lots and streets will change from sketch plan through final approval, and lots shown on a final plat may overlap areas that were considered or proposed as roads early in the process. As a practical matter, a "proposed right-of-way" cannot possibly include every square foot of land that was ever considered as a road in any context, especially 465447-1 ® Printed on recycled paper • GARFIELD & HECHT, P.C. City of Aspen September 1, 2009 Page 3 of 4 where the City has explicitly rejected such a proposal. Instead, this section must be interpreted to apply to lands that are currently proposed as future rights -of -way so that the public's future right of access will not be impaired by development. Second, any proposal for the dedication of Matchless Drive was made prior to the date the plat was approved by Pitkin County in 1964 and was subject to conditions that were never fulfilled. The County never accepted any dedication, and any contractual duties of the original developer to fulfill any such conditions would have become unenforceable due to the statute of limitations more than 40 years ago. There is no current proposal. Third, even if there were a "proposal" for dedication, such a proposal would have been made to Pitkin County, not the City of Aspen. Any such proposal to Pitkin County is not relevant under the City Code. Finally, and most importantly, the City affirmatively disclaimed any interest in the subject parcel by filing the enclosed unconditional Disclaimer in Case No. 06-CV-165 on July 31, 2006. Even if there had been a lingering "proposal" for future dedication, it was extinguished as of that date. Under the doctrines of res judicata and collateral estoppel, the City cannot now take a position contrary to what was litigated, or what could have been litigated, in the quiet title case. As of the date of the application, the Northerly Parcel is not a vacated right-of-way, a dedicated right-of-way, or a proposed right-of-way. Accordingly, the conclusion that the parcel has no floor area on this basis must be reversed. Issue No. 3 The Community Development Department determined that the parcel is not eligible for development because it has never received a Growth Management review under Chapter 26.470 of the City Code. Pursuant to Section 26.470.060, assuming that the applicant desires to apply for a single-family home or a duplex, the parcel should be eligible for administrative review subject only to the construction of an ADU in order to meet affordable housing requirements. We request confirmation of this interpretation. Conclusion The City Council should direct the Community Development Department to respond to Questions 1, 2 and 3 as presented in the application. The applicant reserves the right to file a future appeal depending on the outcome of that response. The City Council should reverse the Community Development Department's conclusion that the Northerly Parcel has no associated floor area. 465447-1 ® Printed on recycled paper City of Aspen GARFIELD & HECHT, P.C. SeptemPage 4 of 4 The City CouiiclI should clarify that an application for Growth Management approval for a single family Dome or duplex may be processed on an administrative basis subject only to affordable housing requirements. We look forward to presenting this appeal to the City Council. Thank you for your time and attention. Very truly yours, Garfield & Hecht, P.C. 1)okcd �/t David H. McConaughy DHM:lp Enclosure(s) cc: MD 1, LLC 465447-1 (� Printed on recycled paper • 0 GARFIELD &HECHT, P.C. City of Aspen July 20,2009 Page 2 of 3 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 Parcel 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." S. 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 recycicd paper • • GARFIELD & HECHT, P.C. City of Aspen July 20, 2009 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, 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 PROJECT: 980 Gibson REPRESENTATIVE: Stan Clauson, 925.2323 DESCRIPTION: 0 RECEIVED 5EP 01 2009 CA 1-Y OF ASPEN 'OMMUNITY DEVELOPMENT DATE: November 5, 2008 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.com/depts/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 attorney 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 81/2" 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. 0 • CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTIONS: EFFECTIVE DATE: WRITTEN BY: &&, APPROVED BY: COPIES TO: City Attorney City Planning staff City of Aspen 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 August 19, 2009 Jennifer Phelan, Community Development Deputy Director Jessica Garrow, Long Range Planner Chris Bendon, Community Development Director SUMMARY: This Land Use Code interpretation is being issued in response to an inquiry with regard to the `parcel' created as a result of MD1 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-165. 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 way 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 Staffs interpretation that the land area that MD] 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. RECEPTION#: 550853, 07/0008 at 02:10:07 PM, 1 OF 5, R 06. 00 Janice K. vos Caudill, Pitkin County, CO Pitlan County District Court 506 East Main Street Aspen, CO 81611 MD1 LLC, a Colorado limited liability company, and, VAN METER FAMILY LIVING TRUST, a California Trust V. Defendant(s): The CITY OF ASPEN; LUKE W. COURT USE ONLY ANTHONY, or his heirs, successors, or assigns; and all unknown persons who claim Case Number. 06 CV 165 any interest in the subject matter of this action. The Honorable Denise K Lynch On Plaintiffs' Motion for SummaryJudgment Division: AMENDED DECREE QUIETING TITLE IN PLAINTIFFS and CORRECI'ING CLERICAL ERRORS The matter was before this Court on Plaintiffs' Motion for Summary Judgment. Based upon the pleadings that have been filed and the affidavits and exhibits admitted into evidence, THIS COURT FINDS: THAT service under Rule 4 of the Colorado Rules of Civil Procedure is proper upon all of the Defendants in this action; THAT the legal description in the first decree contained clerical errors, which are fixed in Revised Exhibit A and Revised Exhibit B, attached hereto, pursuant to the Court's authority under C.R.GP. Rule 60(a); THAT MD 1 LLC and its predecessors in interest have adversely possessed the property described in Revised Exhibit A (the "Northerly Parcel"), attached hereto, for a time in excess of the periods of the statutes of limitation, as provided in GRS. §§ 38-41-101, etseq.; THAT the Van Meter Family Living Trust and its predecessors in interest have adversely possessed the property described in Revised Exhibit B (the "Southerly Parcel"), attached hereto, for a time in excess of the periods of the statutes of limitation, as provided in C.R. y Seq. FXdOZ D Cam..., F GARFIELD COUNTY W600. ft�GS, COLORADO Alternate finding for Plaintiffs' title derived through rec ,d correct copal of the cAginai irtmy 4 ICY' vFj Crated . RECEPTION#: 550853, 07/0008 at 02:10:07 PM, 2 OF 5, Janice K. Vos Caudill, Pitkin County, CO MD1, et al. v. Aspen, et al. Pitkin County District Court, Cast No. 06 CV 165 Decree Quieting Title in Plaintiffs Page 2 of 5 THAT MD1 LLC is the owner of the Northerly Parcel by reason of that certain bargain and sale deed from Luke W. Anthony, dated September 14, 2007, and recorded in the real property records of Pitkin County, Colorado on November 9, 2007, at Reception No. 543962; THAT the Van Meter Family Living Trust is the owner of the Southerly Parcel by reason of that certain bargain and sale deed from Luke W. Anthony, dated September 14, 2007, and recorded in the real property records of Pitkin County, Colorado on November 9, 2007, at Reception No. 543963; THAT none of the Defendants has responded to the Complaint or entered an appearance in this action and all the Defendants are therefore in default, with the exception of the City of Aspen and Luke W. Anthony, both of whom disclaimed all interest in the Northerly Parcel and Southerly Parcel; THAT Daniel D. LeMoine, Esq., has been appointed and appeared for any and all Defendants who are in, or who may be in, or who may have been ordered to report for induction into, the military service, as defined by the Soldiers' and Sailors' Gvil Relief Act of 1940, as amended; thereof; THAT this is an action in rem affecting specific real property; THAT the Court has jurisdiction over all parties to this action and of the subject matter THAT the allegations in the Complaint are true; and THAT no Defendant herein has any right, title, or interest in or to the Northerly Parcel or Southerly Parcel. THEREFORE IT IS ADJUDGED AND DECREED THAT - MD 1 LLC was, at the time of the filing of the Motion for Summary Judgment, and is now, the owner in fee simple absolute with right to possession of the Northerly Parcel; The Van Meter Family Living Trust was, at the time of the filing of the Motion for Summary Judgment, and is now, the owner in fee simple absolute with right to possession of the Southerly Parcel; and RECEPTION#: 550853, 07/0008 at 02:10:07 PM, 3 OF 5, Janice K. Vos Caudill, Pitkin County, CO MD1, et al. v. Aspen, et al. Pitlan County District Court, Case No. 06 CV 165 Decree Quieting Tide in Plaintiffs Page 3 of 5 Fee simply title in and to the Northerly Parcel and Southerly Parcel be and the same hereby quieted m MD1 LLC and the Van Meter Family Living Trust, respectively, and that each of the Defendants has no right, title, or interest in or to the Northerly Parcel or Southerly Parcel, or any part thereof, and that Defendants are forever enjoined from asserting any claim, right, title, or interest in or to the Northerly Parcel or Southerly Parcel or any pan thereof. Signed this jQ day of July, 2008. By the Coup: 'L� '1� . I � Denise K. Lynch, District Ju e RECEPTION#: 550853, 07/0008 at 02:10:07 PM, 4 OF 5, • Janice K. Vos Caudill, Pitkin County, CO ? DI, et al. v. Aspen, et al. Pitlan County District Court, Case No. 06 CV 165 Decree Quieting Title in Plaintiffs Page 4 of 5 EXHIBIT A PROPERTY DESCRIPTION OF NORTHERLY PARCEL A parcel of being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado, as shown on the plat thereof recorded at Reception No. 118173 in the offices of the Cleric and Recorder of Pitkin County, said drive more commonly known as Matchless Drive in the City of Aspen, said parcel being more particularly described as follows: Beginning at the westerly -most comer of Lot 3 of said Alpine Acres Subdivision, a No. 5 Rebar found in place; thence S. 48150'17" E., along the southwesterly Line of Lot 3 a distance of 63.02 feet; thence S. 65°55'41" W. a distance of 66.07 feet to the northeasterly line of Lot 1 of said Alpine Acres Subdivision; thence N. 48°50'17" W. a distance of 123.75 feet to a No. 5 Rebar, thence S82059'52" E. a distance of 106.85 feet to the point of beginning, said parcel containing 5,603 square feet, more or less. RECEPTION#: 550853, 07/0*08 at 02:10:07 PM, 5 OF 5, Janice K. Vos Caudill, Pitkin County, CO MDL et al. v. Aspen, et al. Pitkin County District Court, Case No. 06 CV 165 Decree Quieting aitle in Plaintiffs Page 5 of 5 EXHIBIT B PROPERTY DESCRIPTION OF SOUTHERLY PARCEL A parcel of being a portion of Silver King Drive, Block 1, Alpine Acres Subdivision, City of Aspen, County of Pitkin, State of Colorado, as shown on the plat thereof recorded at Reception No. 118173 in the offices of the Clerk and Recorder of Pitkin County, said drive more commonly known as Matchless Drive in the City of Aspen, said parcel being more particularly described as follows: Beginning at the southwesterly line of Lot 3 of said Alpine Acres Subdivision, from which the westerly -most corner of said Lot 3 bears N. 48°50'17" W. a distance of 63.02 feet; thence S. 48050'17" E., along the southwesterly lines of Lot 3 and Lot 2 of said Alpine Acres Subdivision a distance of 102.04 feet to the centerline of an existing drainage; thence S. 56°36'27" W. along said drainage a distance of 22.65 feet; thence S. 53°34'06" W. along said drainage a distance of 26.11 feet; thence S. 17°52'03" W. along said drainage a distance of 13.79 feet to the northeasterly line of Lot 1 of said Alpine Acres Subdivision; thence N. 48°50'17" W. along said northeasterly line distance of 123.53 feet; thence N. 65°55'41" E. a distance of 66.07 feet to the point of beginning, said parcel containing 6,548 square feet, more or less. -'�737 - 07'� - DoN,u ,S ` +-B 4-A Akove Cola \ CO n� I _ 4 • ;?LP/NE "ACR£� SUBD/lam/S/ON f , PL 1lw.. pE0/CATiJU •^ /IC .../�/I. d. a �, /As s...++r IJ • --' , n/ Mr S,ri -WA rsG 7 ,t MO/l ALL MEN or TMC5' -//•i' i 1 n.N., nH /s./ •✓/,' r/I/hide! s.Nr /N/h/ /hr Ilrss ,Yh /./. rrrr /I /.,t.n C+.^+/r• /I/ r ,/ r,/,r ./ /LOLL' /, /G./I4/J' /CllJ r✓/O/✓/S/oN •..r /Iu nsrelY ell ;riri n/' oewoo�I! wfir I/ /'.AtKin .r.r o,rn...,. //.rlsd sI/+•r •• a/ end /'s,ri'u/.ay .J /�c.0 /..•>//ul 4c4/s suCo/r/saw n.J �?M, /I nJ'i•% /�� .y L e w .L.r//ie..r r Ir...r —"r /��1 L,7 f 9 � • / i-a/.r../ wf cs,.Iwi .- . L(fa//• R•Ihe J✓�✓IYOC J Aff/O/✓i7 H •I<r+H a✓/i/y Ml' /M I... % /<d /h/ .! /Yh/ M. E4•+ A, /.iarsl hAr+e `^� »+ Mr J'/.✓s er �irefr HK is!/ ./ Cn/.Ia ale JG•CCK / Av/✓! '/"fJ' Su/o/Y/lroL/ L .r//e ey 'nI I /'� e� �e ever s/e rn/ Jencr /.wlOrrGr M M/r.JLI► Perlld � /Ae I�/t..f t►w/y Zssiwy Crwiru ^ �L.� y/.re/ I/ /pe 0 id I/ //ties G /y Crrwr/i.JiMe/J MiJ—�� • AGL///LO Ar //n%.' /n MI Piddn County District Court 506 East Main Street Aspen, CO 81611 Plaintiffs: MD1 LLC, a Colorado limited liability company; and, VAN METER FAMILY LIVING TRUST, a California Trust V. Defendant(s): The CITY OF ASPEN; LUKE W. Ak COURT USE ONLY A ANTHONY or his heirs, successors, or assigns; and all unknown persons who claim any Case Number: 06 CV 165 interest in the subject matter of this action Attorney for City of Aspen: John P. Worcester 130 S. Galena Street 2"d Floor Aspen, Colorado 81611 Tel: 970.920.5055 Fax: 970.920.5119 1peck@brandt-law.com Atty. Reg. # 20610 Division: DISCLAIMER UNDER RULE 105 COMES NOW, John Worcester, on behalf of defendant City of Aspen, disclaiming any and all interest in the property at issue in this matter and thereby relieving the City of Aspen of any liability for the costs of this action. C.R.C.P. 105(c). Dated: 14 ? ] i ZbQLi By: Worcester, city attorney Ptu� tl�- 1�0 ?,,,k P 00S�-ZWq• A-15W d P f 11 j J � ., ,_J -J,Ll File Edit Record Navigate Form Reports Format Tab Help ■ �i E ►X ► ►--, ' � '... __ `l �j Iv Jump 1 ` A Main yak�ation Custom Fields Actions Fees Parcels Fee Summary Sub Permits Attachmw is Routing Status Routing 1 ► Permit Type aslu Aspen Land Use Permit # 0054.2009.ASLU Address 880 GIBSON AVE AptJSuite ti City ASPEN State CO Zip 81611 Permit Information Master Permit Routing Queue aslu07 Applied 6910312009 Project Status pending Approved Description r OF LAND USE CODE INTERPRETATION Issued F Final 1- submitted DAVID MCCONAUGHY 925 1936 Clock JRunning Days F Expires 08J29J2010 i Owner Last Name MDI, LLC I First Name �— 980 GIBSON AVE Phone (970) 948-0007 i ASPEN COB 1611 Owner Is Applicant? Applicant Last Name 6ARFIELD & HECHT I First Name 601E HYMAN UNIT 2 Phone (970) 925-1936 Cust # 125185 ASPEN CO 81611 j Lender Last Name First Name Phone Permit lenders full address C�- 2-6�35 AspenGold(b) Record: 1 of 1 IMPROVEMENT SURVEY PLAT 1LPINE ACRES CONDOMINIUMS ti & So LOT 5, BLOCK 1 / 41 s LOT 4, BLOCK 1 h ti ti SILVER KING DRIVE °o- BOOK 3, PAGE 2 / . / LOT 3, BLOCK 1 LESS pFt1 / 4V 16� � S66g11 FI \ DEDICATED TO AND�— VICINITY MAP Lake rick The Aspen AYt # en or . . USBU St P St ,Office ' Q.� ` T' Or Ita ire iinCouety "t 3 j \�iQl R 1i r ' n Pitklr��nt��� � H ao�.tno : } f r all j Z 2. OWNED BY CITY O PEN V� ;s \ I ,z O � rs \ ' Ntre '3\ UNIT1 �> 6NO A Ok(lZ o. S-O GARAGE R%F / 2 N i SITE i Z *4 O ✓� N THIS IMPROVEMENT SURVEY PLAT WAS ACCEPTED FOR FILING IN THE OFFICE OF THE CLERK AND RECORDER OF THE COUNTY OF PITKIN, STATE OF COLORADO, AT O'CLOCK,—M. THIS DAY OF IN PLAT BOOK AT PAGE AS RECEPTION NUMBER NOTICE: According to Colorado law you must commence any legal action based upon any defect in this survey within three years after you first discover such defect. In no event may any action based upon any defect in this survey be commenced more than ten years from the date of the certification shown hereon. UNIT2 OS ELECTRIC 0°tip re\\\ -4-G Aqc� LOT 1, BLOCK 1 ALPINE ACRES SUBDIVISION e�, 18,635 SQ.FT.+/- `L C°,NG \ ry` (SFFNo�S � Op S �No 66.9 o 0 �ATB 16040 f 6P qG a V� ,y0 �^ 1 / / LOT 2, BLOCK 1 / / / to Legend S 0 INDICATES FOUND MONUMENT AS DESCRIBED El INDICATES SET MONUMENT LS 33645 8. 0 CABLE RISER �s� 9 ELECTRIC TRANSFORMER ` vm� , a axc EM C M ELECTRIC MUM SILVER KING DRIVE BOOK 3, PAGE 2 Notes A THROUGH REVIEW OF THE CONDITIONS OF THE CONDOMINIUM RECORDED IN BOOK 6 AT PAGE 11 WILL BE NECESSARY TO DEFINE THE BUILDING AREAS OF THIS PLAT. INFORMATION FURNISHED BY PITKIN COUNTY TITLE, INC., ORDER NO. PCT20207F, DATED NOVEMBER 18, 2005, 2005 WAS USED IN THE PREPARATION OF THIS SURVEY. - UNLESS OTHERWISE SPECIFIED, ALL UTILITY EASEMENTS, AS WELL AS ALL PUBLIC AND PRIVATE RIGHTS OF WAY ARE DEDICATED TO THE PERPETUAL USE OF ALL UTILITY COMPANIES FOR THE PURPOSE OF INSTALLING, CONSTRUCTING, REPLACING, REPAIRING AND MAINTAINING UNDERGROUND UTILITIES AND DRAINAGE FACILITIES, INCLUDING BUT NOT LIMITED TO WATER, ELECTRIC, GAS, TELEPHONE AND TELEVISION LINES, TOGETHER WITH THE RIGHT OF INGRESS AND EGRESS FOR SUCH INSTALLATION, CONSTRUCTION, REPLACEMENT, REPAIR AND MAINTENANCE AS WELL AS THE RIGHT TO TRIM INTERFERING TREES AND BRUSH. IN NO EVENT SHALL THE UTILITY COMPANIES EXERCISE THE RIGHTS HEREIN GRANTED AS SO TO INTERFERE WITH THE USE OF THE RIGHT OF WAY FOR ROADWAY PURPOSES EXCEPT TO THE EXTENT REASONABLY NECESSARY TO ENJOY THE GRANT HEREBY MADE. THIS PROPERTY LIES IN ZONE C AS PER FEMA FIRM MAP FOR THE CITY OF ASPEN. CO. PITKIN COUNTY COMMUNITY PANEL NO. 080143 B. EFFECTIVE DATE DECEMBER 4TH 1985. HIRED GUN SURVEYING LTD. P.O. BOX 9 SNOWMASS, COLORADO 81654 (970)923-2794 0 R T H 0 10 20 40 1" = 20' BASIS OF BEARING = A BEARING OF S48150'17"E BETWEEN A FOUND REBAR AT THE NORTHERLY PROPERTY CORNER OF THE NORHTERLY PARCEL AND A FOUND REBAR AND RED PLASTIC CAP LS#38638 FOUND AT THE N.E. PROPERTY CORNER OF THE SOUTHERLY PARCEL AND SHOWN HEREON. LEGAL DESCRIPTIONS BLOCK 1, ALPINE ACRES SUBDIVISION MAP THEREOF RECORDED JULY 6TH, 1964 IN BOOK 3 AT PAGE 2. CONDOMINIUM UNIT 1, ALPINE ACRES CONDOMINIUMS #1, ACCORDING TO CONDOMINIUM MAP APPEARING IN PLAT BOOK 6 AT PAGE 11, AND AS DEFINED IN THE CONDOMINIUM DECLARATION THEREOF RECORDED AUGUST 2, 1977 IN BOOK 332 AT PAGE 722. "NORTHERLY PARCEL" - A PARCEL OF BEING A PORTION OF SILVER KING DRIVE, BLOCK 1, ALPINE ACRES SUBDIVISION, CITY OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO, AS SHOWN ON THE PLAT THEREOF RECORDED AT RECPTION NO. 118173 IN THE OFFICES OF THE CLERK AND RECORDER OF PITKIN COUNTY SAID DRIVE MORE COMMONLY KNOWN AS MATCHLESS DRIVE IN THE CITY OF ASPEN, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE WESTERN -MOST CORNER OF LOT 3 OF SAID ALPINE ACRES SUBDIVISION, A NO, 5 REBAR FOUND IN PLACE; THENCE S48150'17"E., ALONG THE SOUTHWESTERLW LINE OF LOT 3 A DISTANCE OF 63.02 FEET; THENCE S65055'41"W. A DISTIANCE OF 66.07 FEET TO THE NORTHEASTERLY LINE OF LOT 1 OF SAID ALPINE ACREES SUBDIVISION; THENCE N48050'17"W. A DISTANCE OF 123.75 FEET TO A NO). 5 REBAR; THENCE S82159'52"E. A DISTANCE OF 106.85 FEET TO THE POINT O)F BEGINNING, SAID PARCEL CONTAINING 5,603 SQUARE FEET, MORE OR LESS. "SOUTHERLY PARCEL" - A PARCEL OF BEING A PORTION OF SILVER KING DRIVE, BLOCK 1, ALPINE ACRES SUBDIVISION, CITY OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO, AS SHOWN ON THE PLAT THEREOF RECORDED AT RECPTION NO. 118173 IN THE OFFICES OF THE CLERK AND RECORDER OF PITKIN COUNTY SAID DRIVE MORE COMMONLY KNOWN AS MATCHLESS DRIVE IN THE CITY OF ASPEN, SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY LINE OF LOT 3 OF SAID ALPINE ACRES SUBDIVISION, FROM WHICH THE WESTERLY -MOST CORNER OF SAID LOT 3 BEARS N48050'17"W. A DISTANCE OF 63.02 FEET; THENCE S48050'17"E., ALONG THE SOUTHWESTERLY LINES OF LOT3 AND LOT 2 OF SAID ALPINE ACRES SUBDIVISIONA DISTANCE OF 102.04 FEET TOT HE CENTERLINE OF AN EXISTING DRAINAGE; THENCE S56136'27"W. ALONG SAID DRAINAGE A DISTANCE OF 22.65 FEET; THENCE S53°34'06"W. ALONG SAID DRAINAGE A DISTANCE OF 26.11 FEET; THENCE S17052'03"W. ALONG SAID DRAINAGE A DISTANCE OF 13.79 FEET TO THE NORTHEASTERLY LINE OF LOT 1 OF SAID ALPINE ACRES SUBDIVISION; THENCE N48050'17A"W. ALONG SAID NORTHEASTERLY LINE A DISTANCE OF 123.53 FEET; THENCE N�SeSS14111 �. A DISTANCE OF 66.07 FEET TO THE POINT OF BEGINNING, SAID PARCELCONTAINING 6,548 SQUARE FEET, MORE OR LESS. SURVEYOR'S CERTIFICATE I, STEVEN A. YELTON, HEREBY CERTIFY THAT THIS MAP ACCURATELY DEPICTS AN IMPROVEMENT SURVEY PLAT WITH TOPOGRAPHIC INFORMATION PERFORMED UNDER MY SUPERVISION ON DECEMBER, 2008 OF THE ABOVE DESCRIBED PARCEL OF LAND. THE LOCATION AND DIMENSIONS OF ALL IMPROVEMENTS, EASEMENTS, RIGHTS -OF -WAY IN EVIDENCE OR KNOWN TO ME AND ENCROACHMENTS BY OR ON THESE PREMISES ARE ACCURATELY SHOWN. STEVEN A. YELTON PLS. # 33645 DATE: DATE SURVEYED: 7-22-07 DATE DRAFTED: 7-07 REVISED: 12-04-08 r�DpLA%y *. 1- e, o 0- O; 33645 Z;c �Qt �LAN� DATA FILE NAME: 0707145 DRAWN BY: TY