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agenda.council.regular.20110425
CITY COUNCIL AGENDA April 25, 2011 5:00 P.M. 1. Cali to Order II. Roll Call III. Scheduled Public Appearances a) Aspen Film b) Proclamation — Family Fun Day at the ARC IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Minutes — April 11, 2011 b) Resolution #30, 2011 — Release Funds from Community Designation Fund VII. First Reading of Ordinances a) Ordinance #14, 2011 — Code Amendment — Affordable Housing P.H. 5/23 b) Ordinance #15, 2011 — Stormwater Fee in Lieu of Detention P.H. 5/9 c) Ordinance #16, 2011 — Amendment to Urban Runoff Management Plan P.H.5 /9 VIII. Public Hearings a) Ordinance #13, 2011 — Code Amendment Water utility Fees Affordable Housing b) Ordinance #12, 2011 — 625 E Main (Stage III) Subdivision Amendment and PUD IX. Action Items a) Resolution #31, 2011 - Appeal of Code Interpretation — Floor Area b) Request for Waiver Development Fees — Theatre Aspen XI. Adjournment Next Regular Meeting May 9, 2011 COUNCIL'S ADOPTED GUIDELINES ✓ Stick to top priorities ✓ Foster a safe, supportive, innovative environment that encourages creativity and acceptable risk - taking ✓ Create structure and allow adequate time & resources for citizen processes. Demonstrate and invite active listening COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. Vi b MEMORANDUM TO: Mayor and City Council FROM: Don Pergande, Budget Officer THRU: Don Taylor, Finance Director DATE OF MEMO: April 8, 2011 MEETING DATE: April 25, 2011 RE: Requesting release of Community Enhancement funding from the reserved fund balance in the General Fund. REQUEST OF COUNCIL: Requesting Council release the Community Enhancement funding received from Holy Cross from the reserved fund balance in the General Fund. The City has completed projects in recent years that meet the qualification for use of these funds. PREVIOUS COUNCIL ACTION: Council approved ordinance #11 in 1998 granting a franchise to Holy Cross Energy. Council approved ordinance #44 in 2003, which was a revised version of ordinance #11. BACKGROUND: The approved ordinance states in addition to a 3% franchise fee, Holy Cross will pay a voluntary 1% of gross revenues to fund a Community Enhancement Fund. These funds are designated for specific programs that are designed to make a difference in people's lives and the community in which they reside. These programs are limited to: (1) beautification projects; (2) energy conservation projects; (3) equipment and technology upgrades for schools; (4) scholarship funds; (5) acquisition of open space and /or park land and development thereof; (6) sponsorship of special community events; and (7) undergrounding of overhead electric and other utility lines. This revenue is received in the General Fund. The City has maintained a reserved fund balance in the General Fund since the creation of the Community Enhancement Fund. The reserve balance has accumulated from receipts and interest earned. Payments from the Community Enhancement reserve require a resolution or ordinance by Council. DISCUSSION: The total amount of projects and events that qualify for Community Enhancement funding from 2007 to 2010 total $752,118, the entire amount of funding available. The energy conservation project at the Aspen Recreation Center (ARC) qualifies as a Community Enhancement. This Energy Efficiency project expense total $1.2 million for 2007 to 2010. Page 1 of 3 One special community event is identified in this memo for use of the Community Enhancement funds. These expenses total $192,154 for New Year's Eve from 2007 to 2010. Funding these projects starting in 2007 brings the Community Enhancement Fund balance to zero at the end of each year. Staff is requesting that Council recognizes these funds have been expensed in accordance with the limitations in ordinance #44 and release this funding from the reserve account in the General Fund in 2011. 2007 2008 2009 2010 Total Energy Conservation Energy Efficiency - ARC $994,902 5144,977 $41,213 $38,775 51,219,865 Special Community Events New Year's Eve $22,721 $58,071 $55,956 $55,406 $192,154 Projects $1,017,622 $203,048 $97,168 $94,181 $1,412,019 Community Enhancement Funds $529,469 $76,530 $71,713 $74,405 $752,118 Community Enhancement Ending Balance $0 $0 $0 $0 $0 FINANCIAL /BUDGET IMPACTS: By Council recognizing the ordinance requirements have been met and the Community Enhancement Funds have been expensed in full, the reserved fund balance will be reclassified. This action will not change the fund balance of the General Fund but increase the unreserved balance in the General Fund. The unreserved fund balance is available to fund general government operations. ENVIRONMENTAL IMPACTS: The energy conservation project improved energy efficiency at the ARC. The original energy savings estimates were a 20% reduction in electric consumption (kWh), 69% reduction in natural gas consumption (CCF) and 10% reduction in water consumption. This translates into a reduction of greenhouse gas emissions of 1,674 tons of carbon dioxide - equivalents (CO2e). The full benefit of this project is currently commissioned with an engineer to assess the level of savings the city is actually realizing. This analysis will be completed by May 2011. RECOMMENDED ACTION: Staff recommends Council release the Community Enhancement funding received from Holy Cross from the reserved fund balance in the General Fund. The City has completed projects that meet the qualification for use of these funds. ALTERNATIVES: If Council does not approve staff recommendation the available unreserved fund balance will not increase by $839,389. This amount is greater than the amount of projects funded because if the projects do not use these funds greater interest accrues to the reserved funds. Staff will identify programs that meet the requirements of section 11.1 of ordinance #44 and seek Council approval for spending the reserve balance in the beginning of each year. PROPOSED MOTION: I move to approve t aiimme# V 1 laa 4t Page 2 of 3 CITY MANAGER COMMENTS: orb.. Page 3 of 3 RESOLUTION # 30 (SERIES OF 2011) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE RELEASE OF THE RESTRICTION DESIGNATION OF FUNDS IN THE COMMUNITY ENHANCEMENT FUND. WHEREAS, the Aspen City Council approved Ordinance #11, 1998, granting a franchise to Holy Cross Energy, and approved Ordinance #44, 2003, a revision to the franchise; and, WHEREAS, said ordinances state that in addition to a 3% franchise fee, Holy Cross shall pay a voluntary 1% of gross revenues to fund a Community Enhancement Fund; and, WHEREAS, these funds are designated for specific programs that are designed to make a difference in people's lives and the community in which they reside including (1) beautification projects; (2) energy conservation projects; (3) equipment and technology upgrades for schools; (4) scholarship funds; (5) acquisition of open space and/or park land and development thereof; (6) sponsorship of special community events; and (7) undergrounding of overhead electric utility lines; and, WHEREAS, certain energy conservation projects at the Aspen Recreation Center (ARC) in recent years and one special community project, New Year's Eve, qualify as Community Enhancement projects; and, WHEREAS, said projects have totaled $752,118.00 and City Council desires to un- restrict the restrictive designation of such funds currently held in the City's General Fund as The City Council recognizes the ordinance requirements have been met and the Community Enhancement Funds have been expensed in full, and desires to authorize the release of said funds from the reserve account in the General Fund in 2011. NOW, THEREFOR, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN COLORADO, THAT: Section 1 The Finance Director of the City of Aspen is hereby directed to release the restrictive designation of the funds held in the reserve account entitled "Community Enhancement Funds" and make all other accounting steps necessary to release such funds as described below in the General Fund for 2011. 2007 2008 2009 2010 Total Energy Conservation Energy Efficiency - ARC 5994,902 5144,977 541,213 538,775 51,219,865 Special Community Events New Year's Eve $22,721 558,071 $55,956 555,406 5192,154 Projects $1,017,622 $203,048 $97,168 $94,181 $1,412,019 Community Enhancement Funds $529,469 $76,530 $71,713 $74,405 $752,118 Community Enhancement Ending Balance $0 $0 $0 $0 $0 Adopted this 25, day of April 2011 Michael C. Ireland, Mayor I, KATHRYN KOCH, duly appointed and acting City Clerk of the City of Aspen, Colorado, do hereby certify that the foregoing is a true and accurate copy of the Resolution adopted by the City Council at its meeting held on the 25 day of April, 2011. Kathryn Koch, City Clerk JPW-saved: 4/19/11 - communityenhancement.docx CTI'Y OF ASPEN ORDINANCE NO. q 9 (Series of 2003) AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, GRANTING A FRANCHISE TO HOLY CROSS ENERGY, ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, INSTALL, CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN AND OPERATE INTO, WITHIN AND THROUGH A PORTION OF THE CITY OF ASPEN ALL NECESSARY AND CONVENIENT FACILITIES FOR THE PURCHASE, GENERATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICAL ENERGY, AND TO FURNISH, SELL AND DISTRIBUTE SAID ELECTRICAL ENERGY TO THE RESIDENTS THEREOF FOR LIGHT, HEAT, POWER AND OTHER PURPOSES BY MEANS OF CONDUITS, CABLES, POLES AND WIRES STRUNG THEREON, OR OTHERWISE ON, OVER, UNDER, ALONG, ACROSS AND THROUGH ALL STREETS, ALLEYS, VIADUCTS, BRIDGES, ROADS, LANES AND OTHER PUBLIC WAYS AND PLACES THEREIN, ALL IN PITKIN COUNTY, COLORADO, AND FIXING THE TERMS AND CONDITIONS THEREOF. WHEREAS, the City staff and Holy Cross have negotiated an agreement providing for a grant of franchise subject to approval by the City Council of the City of Aspen and the electors of the City of Aspen; and WHEREAS, the City of Aspen and Holy Cross share similar values concerning energy efficiency and renewable energy and have pledged to work jointly towards attainment of their respective goals; and WHEREAS, the City Council has determined that the grant of franchise is in the best interests of the citizens of the City of Aspen. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. Subject to approval by a majority of the electors of the City of Aspen voting thereon in accordance with Section 11.4 of the Home Rule Charter of the City of Aspen, the following franchise agreement is hereby approved by the City Council: - -- t ARTICLE 1 SHORT TITLE 1.1 This Ordinance shall be known and may be cited as the "Holy Cross Energy Franchise Ordinance." ARTICLE 2 DEFINITIONS For the purposes of this Ordinance, the following terms shall have the meanings given herein: 2.1 "Municipal Service Area" refers to a specific tract of land within the municipal boundaries of the City of Aspen described as follows: Beginning at a point Lying easterly of Block 40 in the East Aspen Townsite, where the easterly extension of the center of Dean Street intersects the center of the Roaring Fork River; thence westerly along the center of Dean Street to the center of South Monarch Street; thence northerly along the center of South Monarch • Street to the center of Durant Avenue; thence westerly along the center of Durant Avenue to the center of South Garmisch Street; thence northerly along the center of South Garmisch Street to the center of Cooper Avenue; thence westerly along the center of Cooper Avenue to its intersection with the boundary of the Original Aspen Townsite; thence northwesterly along the boundary of the Original Aspen Townsite to the center of South Fifth Street; thence northerly along the center of South Fifth Street to the center of West Hopkins Avenue; thence westerly along the center of West Hopkins Avenue to the center of South Seventh Street; thence northerly along the center of South Seventh Street to the center of Main Street; thence westerly to the southeast comer of the Villa Annexation, filed August 18, 1972, in Plat Book 4 at Page 270, Pitkin County, Public Records; thence westerly along the southerly boundary of the Villa Annexation to the southwest comer thereof, thence northerly along the westerly boundary of the Villa Annexation to the northwest comer thereof, thence easterly along the northerly boundary of the Villa Annexation to its intersection with the boundary of the Original Aspen Townsite; thence northerly along the boundary of the Original Aspen Townsite to the center of West Smuggler Street; thence easterly along the center of West Smuggler Street to its intersection with the boundary of the Original Aspen Townsite; thence southeasterly along the boundary of the Original Aspen Townsite to its intersection with the boundary of the Trueman Neighborhood Commercial Project, filed April 8, 1977, in Plat Book 5, at Pages 70 through 75 inclusive, of the Pitkin County, Colorado, Public Records; thence northeasterly along the boundary of the Trueman Neighborhood Commercial Project to its intersection with the center of Puppy Smith Street; thence southeasterly along the center of Puppy Smith Street to the intersection of Puppy Smith Street projected with the easterly right -of -way of Mill Street; thence southerly along the easterly right -of -way of Mill Street a distance of 63 feet, more or less, to the intersection of the easterly right -of -way of Mill Street with the southwest corner of a tract of 2 land described in Book 193 at Page 278, Pitkin County, Colorado, Public Records; thence southeasterly along the boundary of the said Tract of land described in said Book 193 at Page 278 a distance of 120 feet, more or less; thence northeasterly along the southeasterly boundary line of said Tract of land described in Book 193 at Page 278 to the intersection of said southeasterly boundary line projected with the center of the Roaring Fork River; thence easterly and southerly along the center of the Roaring Fork River to the point of beginning. 2.2 "Aspen Franchise Area" refers to all land inside the municipal boundaries of the City of Aspen, except for the Municipal Service Area, as of the date of enactment of the Ordinance and all land annexed within such boundaries hereafter. An exception for specific customers listed in Section 3.3 shall apply to this definition, but only during the effective duration of this franchise. 2.3 "City" is the City of Aspen, Pitkin County, Colorado, the home rule municipal corporation which is the grantor of rights under this franchise, and its successors. 2.4 "Company" refers to Holy Cross Energy, a Colorado corporation, the grantee of rights under this franchise, its successors and assigns. 2.5 "Council" refers to the legislative body of the City, known as the City Council of the City of Aspen, Colorado. 2.6 "Facilities" refers to all overhead and underground electric facilities, buildings, and structures necessary to provide electricity into, within and through the Aspen Franchise Area including, but not limited to, such essential apparatus, appliances, plants, systems, substations, works, transmission and distribution lines and structures, anchors, cabinets, cables, conduits, guy posts and guy wires, meters, microwave and communication facilities, overhead and underground lines, pedestals, poles, regulators, sectionalizers, switchgears, transformers, various pad mounted and pole mounted equipment, vaults, wires, and all other related electrical equipment required for the distribution, generation, maintenance, operation, purchase, and transmission of electrical energy. 2.7 "Public Easements" refers to easements created and available for use by any public utility for its facilities. 2.8 "Private Easements" refers to easements created and available only for use by the Company for its Facilities, or by the Company and other selected users or utilities. 2.9 "Municipally Owned Customer" refers to any structure, plant, equipment, apparatus, or facility owned or operated by the City, for which the City is responsible for purchasing electrical service. • 3 2.10 "Residents" refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently maintaining a residence or location in, or to be hereinafter located within, in whole or in part, the municipal boundaries of the Aspen Franchise Area. 2.11 "Revenues" unless otherwise specified refers to and are the gross amounts of money that the Company receives from its customers within the Aspen Franchise Area from the sale of bundled electrical energy, or the transportation, distribution, or sales of electric energy if unbundled, for any particular period of time. 2.12 "Streets and Other Public Places" refers to streets, alleys, viaducts, bridges, roads, • lanes and other public ways and places in the Aspen Franchise Area, subject to limitations stated herein. ARTICLE 3 GRANT OF FRANCHISE 3.1 Grant of Right to Serve. Subject to the conditions, terms and provisions contained in this franchise, the City of Aspen hereby grants to the Company the exclusive right, privilege and authority to locate, build, install, construct, acquire, purchase, extend, maintain and operate into, within and through all of the Aspen Franchise Area all necessary and convenient Facilities for the purchase, generation, transmission, and distribution of electrical energy, together with the right and privilege for the period of this franchise, upon the terms and conditions herein specified to furnish, sell, and distribute said electrical energy to the Residents of the Aspen Franchise Area for light, heat and power or other purposes. Customers whose property straddles the Aspen Franchise Area and the Municipal Service Area shall continue to be served by the utility serving such customers at the time this Franchise Ordinance is enacted. In addition, the Company shall have the exclusive right, by agreement with the City, to locate Facilities within the Municipal Service Area which are necessary to serve customers within the Aspen Franchise Area. Consent is hereby reaffirmed for such Facilities already within the Municipal Service Area. 3.2 Scope of Grant. Such grant includes the right to furnish electrical energy either overhead, on poles and wires, or underground, or otherwise, on, over, under, along, across and through any and all Streets and Other Public Places, and on, over, under, along, across and through any extension, connection with, or continuation of, the same and/or on, over, .under, along, across and through any and all such new Streets and Other Public Places as may be hereafter laid out, . opened, located, or constructed within the munidpal boundaries now or hereafter described as the Aspen Franchise Area. The Company is further granted ' the right, privilege and authority to excavate in, occupy and use any and all Streets and Other Public Places described herein under the supervision of the properly constituted authority of the City for the purpose of bringing electrical energy into, 4 • • within and through the Aspen Franchise Area and supplying electrical energy to the Residents thereof; subject, however, to the City's usual and customary permitting process for said construction activity. 3.3 Service to City Facilities and Affordable Housing Units. The City hereby grants to the Company the exclusive right, privilege, and authority to provide street and security lighting to the Aspen Franchise Area, and to serve certain municipally owned or operated public works type structures, plants, equipment, or City apparatus or facilities, including the right, privilege, and authority to furnish, sell, and distribute electrical energy necessary for such. The list of Municipally Owned Customers and affordable housing units that may be served by the City, at its option, by wheeling energy over the Company's system to a point of delivery is attached hereto as Exhibit "A" and by this reference made a part hereof. Said affordable housing units provided for herein may only be located within (a) the lands described by that certain Pre- Annexation Agreement approved by the Aspen City Council by Resolution No. 118, Series of 2000, upon annexation of such lands; and (b) any lands annexed by the City, after the effective date hereof and currently within the City's Urban Growth Boundary. The affordable housing units specified herein shall not exceed 500 units in aggregate and shall be constructed with funds from the City's Affordable Housing Fund. In addition, the City shall • have the right and option to serve other Municipally Owned Customers if such facilities are of a "public works" type of facility. In the event the City exercises such option, terms and conditions concerning the following issues shall be set forth in a separate agreement between the Company and the City. 1. Delivery and metering of energy, 2. Scheduling procedures between Company and City's energy supplier, and • 3. Billing and accounting procedures. Such separate agreement shall include but not be limited to the following terms • and conditions as they relate to the City service to any and all Municipally Owned Customers: 1. The Company will grant permission for wheeling of electricity across the Company's system at reasonable and customary terms for such service to the City, 2. The Company will charge for losses upon reasonable and customary terms for such service to the City, and 3. The City will meet the Company's standards and requirements for metering and pay for all initial costs and ongoing expenses. • 4. The Company and the City must jointly agree upon the delivery points. 5 Unless and until such separate agreement is signed by both the Company and the City, the listed facilities shall not be served by the city. The option to serve those customer's specified in Exhibit "A" shall exist only for the effective duration of this Franchise, after which all such customers shall become customers of the Company. ARTICLE 4 SPECIFIC ELEMENTS OF GRANT 4.1 Recreational Areas. The Company shall not have the right to locate, build, or construct Facilities under, across, or through public parks or recreational areas located within the Aspen Franchise Area without prior written approval granted by the City Council. Said approval shall not be unreasonably withheld. 4.2 Trees and Shrubs. The Company shall have the right to control the growth of trees and shrubs as may be reasonably necessary to protect its Facilities. The Company may use machinery or other lawful methods to control such growth, but shall not use chemicals for such purpose. Annually, on a date mutually agreed to by both parties, representatives of each party shall meet and/or consult to discuss problems related to the means and methods of controlling such growth. Prior to cutting down or removing any tree, the Company shall consult with a representative of the City for the purpose of determining whether such cutting or • removal is the only reasonable and cost effective means of protecting the Company's Facilities. 4.3 Location of Company's Facilities. Wherever reasonable and practicable, the Company will endeavor to install its Facilities within Public Easements. The Company shall locate its Facilities within the Aspen Franchise Area so as to cause minimum interference with the City's water mains, sewer mains, 'storm drains, and the proper use of streets, alleys, and other public ways and places and so as to cause minimum interference with the rights or reasonable convenience of property owners whose property adjoins any of the said streets, alleys or public ways and places. 4.4 • Restoration of Public and Private Improvements. Should it become necessary for the Company, in exercising its rights and performing its duties hereunder, to interfere with any sidewalk, pavement, water main, sewer, storm drain, or any other public or private improvement, the Company shall at its own expense and in a workmanlike manner, repair or cause to be repaired and restored to its original condition such sidewalk, graveled or paved street, road, alley, water main, sewer, storm drain, or other public or private improvement after the installation of its Facilities, provided, however, that upon failure of the Company to do such 6 required repairs within a reasonable time and in a workmanlike manner, the City may perform the required work and charge the Company for all reasonable 'costs thereof. Nothing hereinabove shall be construed to obligate the Company to pay for the removal and relocation of its Facilities where such is at the request or demand of a person, or a public or private entity under circumstances which require the party requesting or demanding such to pay for the relocation under other provisions hereof, or under the provisions of the Company's Line Extension Policy or Underground Conversion Policy (See Article 12). 4.5 Use of Facilities. The Company shall have the right to make such use of its Facilities and other property, other than the uses contemplated in the Ordinance as it deems proper so long as such other use does not interfere with its ability to supply electrical energy. 4.6 Changed Conditions. If at any time it shall be necessary to change the position of any pole, conduit or service connection relating to overhead facilities of the Company to permit the City to lay, make or change street grades, pavements, sewers, water mains, or other City works, such changes shall be made by the Company at its own expense, after reasonable notice from the City. 4.7 Compliance with City Requirements. The Company shall comply with all City requirements regarding curb and pavement cuts, excavating, digging and related construction activities. If requested by the City, the Company shall submit copies of reports of annual and long -term planning for capital improvement projects with descriptions of required street cuts, excavation, digging and related construction activities within thirty (30) days after issuance or request. 4.8 City Review of Construction and Design. Prior to construction of any significant Facilities within the Aspen Franchise Area, if requested by the City, the Company shall famish to the City the plans for such proposed construction. In addition, the Company shall assess and report on the impact of such proposed construction on the City environment. Such plans and reports may be reviewed by the City to ascertain, inter alia, (1) that all applicable laws including building and zoning • codes and air and water pollution regulations are complied with, (2) that aesthetic and good planning principles have been given due consideration, and (3) that adverse impact on the environment has been minimized. 4.9 Capital Improvement Proiects. The Company and the City shall endeavor to inform one another of any capital improvement projects anticipated within the Aspen Franchise Area. The party proposing such capital improvements shall inform the other party of the nature of such improvements within a reasonable time after plans for such improvements have been substantially formulated. Each party shall cooperate in the timely exchange of all necessary information, design data, drawings, and reports to properly assess and evaluate the potential impacts of said improvements. 7 4.10 Maintenance of Facilities. The Company shall install, maintain, repair, replace, and upgrade its Facilities to ensure both the adequacy of, and quality of, electric service to the Aspen Franchise Area. All excavation and construction work done by or under the authority of the Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the Residents. 4.11 City Not Required to Advance Funds. Upon receipt from the City of an authorization to proceed, and a promise to pay for construction, the Company shall extend its Facilities to the Aspen Franchise Area for municipal uses therein or for any municipal facility outside the municipal boundaries of the Aspen • Franchise Area and within the Company's certificated service area, without requiring the City to advance funds prior to construction. 4.12 Scheduled Interruptions. The Company shall, when reasonable and practical, give notice, either oral or written, to the City and its affected Residents, of planned service interruptions of significant duration. ARTICLE 5 RATES, REGULATIONS, UNIFORMITY OF SERVICE, AND UPGRADES 5.1 Furnishing Electrical Energy. The Company shall furnish electrical energy within the Aspen Franchise Area to the Residents thereof at the applicable and effective rates and under the terms and conditions set forth in the Rate Schedules, Standards for Service, Rules and Regulations, and Service Connection and Extension Policies, adopted by and on file with the Company, subject only to regulation thereof as is provided by law. The Company shall not, as to rates, charges, service, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any resident, or subject any resident to any disadvantage or prejudice, provided that nothing in this grant shall be taken to prohibit the establishment from time to time of a graduated scale of charges and classified rate schedules to which any customer coming within an established classification would be entitled. 5.2 Facility Upgrades. The Company will, from time to time, during the term of this franchise make such improvements, enlargements and extensions .of its Facilities incorporating, when reasonable and practical, technological advances within the industry as the business of the Company and the growth of the Aspen Franchise Area justify, in accordance with its Standards for Service, Rules and Regulations, and Service Connection and Extension Policies for electric service concurrently in effect and on file with the Company, subject only to regulations thereof as is provided by law. 5.3 Reliable Supply of Electricity. The Company shall take all reasonable and necessary steps to provide an adequate supply of electricity to its customers at the 8 lowest reasonable cost consistent with long-term reliable supplies. If the supply of electricity to its customers should be interrupted, the Company shall take all necessary and reasonable actions to restore such supply within the shortest practicable time. 5.4 Changes in Rates and Service. The Company, from time to time, may promulgate such rules, regulations, terms and conditions governing the conduct of its business, including the use of electrical energy and payment therefor, and the interference with, or alteration of any of the Company's property . upon the premises of its customers, as shall be necessary to ensure a continuous and uninterrupted service to each and all of its customers and the proper measurement thereof and payment therefor. 5.5 Maps and Regulations. The Company shall submit copies of its Standards for Service, Service. Connection and Extension Policies, Rules and Regulations, and maps of its Facilities within the City boundaries to the City Clerk. All changes in • such maps, Standards for Service, Rules and Regulations, and policies, shall be submitted to the City as the same may from time to time occur. 5.6 Subdivision Review. The Company shall analyze any subdivision plats or planned unit development plans submitted to it by the City and respond to any request by the City for information regarding the adequacy of its Facilities . necessary to serve such proposed plat or plan and answer any other questions posed to the Company by the City regarding said plat or plan as are within the knowledge of the Company. The Company shall respond to said requests or questions within reasonable time limits set by the City's Subdivision Regulations. 5.7 Compliance with Laws. The Company agrees to abide by all ordinances of the City, unless and except to the extent that this Franchise Ordinance shall relieve the Company of the obligation to comply with terms and conditions of such other ordinances or any other provisions thereof. The Company shall also comply with all County, State or Federal laws, rules and regulations, ordinances or resolutions related to the subject matter hereof. ARTICLE 6 USE OF COMPANY FACILITIES 6.1 Use of Poles by City. The City shall have the right, without cost, to jointly use all . poles and suitable overhead structures within the Aspen Franchise Area for the purpose of stringing wires thereon for any reasonable City authorized use; which use shall not include the distribution or transmission of electricity; provided, however, that the Company shall assume no liability, nor shall it be put to any additional expense, in connection therewith, and said use shall not interfere in any unreasonable manner with the Company's use of same, or the use thereof by the Company's permittees, licensees, or other than existing users of such Facilities. Use of Facilities hereunder by the City shall not apply to the City's licensees and 9 assignees. The Company agrees to permit City licensees and franchisees, except those holding an electric utility franchise or license from the City, to use its Facilities upon reasonable terms and conditions to be contractually agreed upon with the Company, in writing. ARTICLE 7 INDEMNIFICATION AND POLICE POWER 7.1 City Held Harmless. The Company shall indemnify, defend and save the City, its officers and employees, harmless from and against all liability or damage and all claims or demands whatsoever in nature 'arising out of the operations of the Company within the Aspen Franchise Area pursuant to this franchise, and the securing of, and the exercise by the Company of, the franchise rights granted in this ordinance and shall pay all reasonable expenses arising therefrom. The City will provide prompt written notice to the Company of the pendency of any claim or action against the City arising out of the exercise by the Company of its franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. In the event a claim or claims for injury or damage is brought against the Company, and such shall include a claim of responsibility against the City, both parties shall defend the respective claim or claims brought against each, and each shall be responsible for its own attorney's fees during the pendency and continuation of any such action or proceeding. At . the conclusion of the litigation or proceeding, whether by settlement, dismissal, order of court or administrative agency, or otherwise, if a determination is made that the City is in no way responsible for the claim or claims, or that the Company is solely responsible, the Company shall promptly reimburse the City for its attorneys fees and costs incurred in defending such claim or claims. 7.2 Police Power Reserved. The right is hereby reserved to the City to adopt from time to time, in addition to the provisions herein contained, such Ordinances as may be deemed necessary in the exercise of its police power, provided that such regulations shall be reasonable and not destructive of the rights herein granted, and shall not be in conflict with the agreements herein made, and not in conflict with the laws of the State of Colorado, or with orders of other authorities having jurisdiction in the premises. ARTICLE 8 FRANCHISE FEE 8.1 Franchise Fee. As a further consideration for this franchise, and accepted by the City in lieu of all occupancy and- license taxes and all other special taxes, assessments, fees, or excises upon the Facilities or other property of the Company, or other levies that might be imposed, either as a franchise tax, occupation tax, occupancy tax, or license tax, permit charge or fee, or contractor's license fees for work contracted to be performed under contract with the Company, or for the 10 inspection of Facilities, or other property, and charges which would otherwise be chargeable to the Company, or otherwise, the Company shall pay to the City a sum equal to three percent (3 %) of its quarterly gross Revenues collected within the Aspen Franchise Area. Electric Revenues received from City facilities will not be assessed a 3% fee under this section nor will the City be paid the 3% fee from such Revenues collected from City facilities. 8.2 Payment. Payment shall be made on or before thirty (30) days after the end of each quarter of each calendar year for the three (3) month period next previous,. but shall be adjusted for the portions of the calendar quarters at the beginning and at the end of this franchise. All payments shall be made to the City Clerk. 8.3 Revenue Audit. For the purpose of ascertaining or auditing the correct amount to be paid under the provisions of this Article, the Company shall file with the' City Clerk, or such other official as shall be designated by the City from time to time, a statement, in such reasonable form as the City may require, showing the total gross receipts received by the Company within the municipal boundaries of the Aspen Franchise Area within the preceding three (3) month period. The City Clerk or any official appointed by the Board shall have access to the books of said Company for the purpose of confirming the quarterly gross Revenues received from operations within the Aspen Franchise Area. 8.4 Correction of Underpayment/Overpayment. Should either the Company or the City discover either an underpayment or overpayment of the quarterly franchise • fee, the party making such discovery shall inform the other party within a reasonable time. If the error is substantiated as an underpayment, the Company shall make payment of the deficiency within thirty (30) days of the date the error was substantiated. If the error is substantiated as an overpayment, a credit equal • to the overpayment will be applied to the next quarterly franchise payment due the City. 8.5 Occupancy Tax Alternative. In the event the said franchise fee levied herein - should be declared invalid and/or shall be set aside by a Court of competent jurisdiction, then, and in such event, and in lieu thereof, the City may thereafter levy an occupancy tax upon the Company, not to exceed in any one calendar year three percent (3 %) of the gross Revenues collected within the Aspen Franchise Area for that calendar year. In the event the one percent (1 %) community • enhancement fee shall also be declared invalid and/or shall be set aside by a court of competent jurisdiction, then the occupancy tax levied upon the Company by the City shall be four percent (4 %) instead of three percent (3 %). Such occupancy tax shall be adjusted for any franchise fees or enhancement fees previously paid to the City in such calendar year. In the event the City shall enact such an occupancy tax, in lieu of the franchise fee and/or enhancement fee levied hereunder, all of the remaining terms, conditions and provisions of this Ordinance shall remain in full force and effect for the period stated herein. 11 • 8.6 Franchise Fee Payment in Lieu of Other Fees. As indicated in Section 8.1, above, the franchise fee paid by the Company is accepted by the City in lieu of any occupancy tax, license tax, permit charge, inspection fee, or similar tax on the privilege of doing business or in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its property or any other tax not related to the franchise or the physical operation thereof and does not exempt the Company from payment of head taxes or other fees or taxes assessed generally upon business. 8.7 Payment of Expenses Incurred by City in Relation to Ordinance. At the City's option, the Company shall pay in advance or reimburse the City for expenses incurred in publication of notices and ordinances and for photocopying of documents arising out of the negotiations or process of obtaining this franchise and the proportional share of the cost of an election seeking the approval of a majority of the City electors voting thereon. ARTICLE 9 • REPORTING AND CHANGE IN FRANCHISE FEE 9.1 Reports. The Company shall submit reasonable and necessary reports containing, or based upon, information readily obtainable from the Company's books and records as the City may request with respect to the operations of the Company under this franchise, and shall, if requested, provide the City with a list of real property within the Aspen Franchise Area which is owned by the Company. 9.2 Change of Franchise Fee. The Company shall, upon request from the City, notify the Council of any changes in the franchise fee percentage made in other municipalities served by the Company under a franchise within the State of Colorado. If the Council decides the franchise fee percentage charges hereunder shall be changed, it shall provide for such change by Ordinance; provided, however, that any change in the franchise fee shall then be surcharged by the Company to the Residents of the Aspen Franchise Area. 9.3 Copies of Tariffs. Upon request, the Company shall furnish the City with copies of any tariffs currently in use. ARTICLE 10 ADMINISTRATION 10.1 Duration of Franchise. This Ordinance shall be in full force and effect from and after its passage as by law required and the terms, conditions and covenants hereof shall remain in full force and effect for a period of twenty (20) years from and after such enactment. 12 10.2 Amendments. At any time during the term of this franchise, the City through its Council, or the Company, may propose amendments to this franchise by giving thirty (30) days written notice to the other party of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, shall within a reasonable time: negotiate in good faith in an effort to agree upon a mutually satisfactory amendment(s). No amendment(s) to this franchise shall be effective until mutually agreed upon by the City and the Company and until all public notice requirements pursuant to Colorado statutes, and ordinance requirements of the City, have been met. This section shall not apply to franchise fee changes under Article 9. 10.3 Revocation of Privileges. This franchise Ordinance does not limit the eminent domain rights, powers, authority, or defenses of' either party under the laws and Constitution of the State of Colorado. 10.4 Compliance Impaired. Both the Company and the City recognize there may be circumstances whereby compliance with the provisions of this franchise is impossible or is delayed because of circumstances beyond the Company's or City's control. In those instances, the Company or City shall use its best efforts to comply in a timely manner and to the extent possible. 10.5 Company's Failure to Perform. It is agreed that in case of the failure of the Company to perform and carry out any of the stipulations, terms, conditions, and agreements herein set forth in any substantial particular, wherein such failure is within the Company's control and with respect to which redress is not otherwise herein provided, the City, acting through its Council, may, after hearing, determine such substantial failure; and, thereupon, after notice given the Company of such failure, the Company may have a reasonable time, not less than sixty (60) days and not to exceed six (6) months, in which to remedy the conditions respecting which such notice shall have been given. After the expiration of such time and the failure to correct such conditions, the Council shall determine whether any or all rights and privileges granted the Company under this ordinance _ shall be forfeited and may declare this franchise null and void. 10.6 Ownership of Facilities. All Facilities used or placed by the Company within the municipal boundaries of the Aspen Franchise Area shall be and remain the . property of the Company. 10.7 Transfer of Rights. The Company shall not transfer or assign any rights under this franchise to a third party, excepting only corporate reorganizations of the Company not including a third party, unless the City shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. 13 10.8 Removal of Facilities. Upon the expiration of this franchise, if thereafter the Company Facilities shall not be used for electric, telephone, or cable TV purposes for a period of twelve (12) successive months, and the City shall thereafter give written notice to the Company directing it to remove such Facilities, the Company shall forthwith remove the same no later than six (6) months after the date of such notice. Any Facilities, either underground or overhead, remaining after such time shall be deemed to have been abandoned. Any liability associated with Facilities abandoned by the Company and claimed by the City shall become the liability of • the City. 10.9 Non - renewal of Franchise: Alternative Electric Service. If this franchise is not renewed, or if it is declared null and void, or the Company terminates any service provided for herein for any reason, and the City has not provided for alternative electric service to the Residents of the Aspen Franchise Area, the Company shall not remove its Facilities and shall be obligated to continue electric service to the Residents until alternative electric service is provided. The Company will not withhold any temporary services necessary to protect the public. ARTICLE 11 COMMUNITY ENHANCEMENT FUND 11.1 Purpose. The Company is committed to programs designed to make a difference in people's lives and the communities in which they reside. The Company will voluntarily make monetary resources available to the City for such programs and/or activities. Programs for which such funds shall be spent shall be limited to: (1) Beautification projects; (2) Energy conservation projects; (3) Equipment • and technology upgrades for schools; (4) Scholarship funds; (5) Acquisition of open space and/or park land and development thereof; (6) Sponsorship of special community events; (7) Undergrounding of overhead electric and other utility lines. Funds made available under this Article may be spent for other purposes only with the express written consent of the Company. This program has been initiated solely by the Company; the City has not made the program a requirement for this franchise. Funding for this program is not a cost of doing business but is a voluntary contribution by the Company. 11.2 Payments to the Fund. Within thirty (30) days after enactment of this Ordinance, the Company will establish an initial fund amount of $2,000.00. Whenever a full calendar year has transpired after the inception date of this franchise, the Company shall then pay to the City for the fund an amount equal to one percent (1 %) of the gross Revenues collected within the Aspen Franchise Area for such calendar year plus any partial calendar year that transpired after the inception of the franchise ordinance. Thereafter, the Company shall make annual payments to the fund equal to one percent (1 %) of its prior year's gross Revenues, or . $2,000.00, whichever amount is greater. Said payments shall be made into the 14 fund no later than February 15 of the year subsequent to the calendar year in which the gross Revenues are received by the Company. 11.3 The Fund. The Fund established by the Company shall be maintained in a bank account in the name of the City, but shall be maintained separately from all other funds and accounts held by the City. 11.4 Payments from the Fund. All payments from the fund shall be for projects described in Section 11.1 hereof. Prior to any such expenditure, authorization to withdraw from the fund shall be given by resolution or ordinance duly enacted by the Council, and such resolution or ordinance shall clearly describe the nature and purpose of the project for which the expenditure is made. 11.5 Audits. The City may audit the Company's books related to gross Revenues collected within the Aspen Franchise Area at any reasonable time and with reasonable prior notice. The Company may audit the fund account, expenditures from the fund, and resolutions and ordinances authorizing such expenditures at any reasonable time and with reasonable prior notice. 11.6 Forfeiture of Enhancement Funds. The Company shall have the express right to temporarily suspend or terminate in full its annual contributions to the Enhancement Fund if it is determined that funds allocated and paid to the City are being, or have been, misappropriated, administered with bias or discrimination, or for other inappropriate actions. ARTICLE 12 UNDERGROUNDING 12.1 At Consumer's Request. If a customer or consumer within the Aspen Franchise Area should request that new Facilities be installed underground, or for the conversion of existing overhead Facilities to underground Facilities, or if City ordinances or resolutions require a customer or customers to install Facilities underground, the Company shall proceed in accordance with its Line Extension Policy, Advice Letter Number 8, dated July 30, 1976 (herein "Line Extension Policy") and in accordance with its Policy Statement, Conversion From Overhead to Underground Facilities, June 15, 1988 (herein "Underground Conversion Policy"), as each may from time to time be amended. 12.2 City Requested Undergrounding. Except for the Company's contributions to the Community Enhancement Fund, which may be used by the City to pay for the undergrounding of the Company's Facilities, any request, requirement imposed by resolution or ordinance, or other communication from the City to the Company, asking, or requiring the Company to underground new Facilities or existing overhead Facilities, or move or remove existing underground Facilities, shall be responded to in accordance with the provisions of the Company's Line Extension 15 Policy and Underground Conversion Policy. The City acknowledges receipt of a copy of both policies. No provision contained in this franchise Ordinance, or the Company's Line Extension Policy, or Underground Conversion Policy, shall relieve the Company of its obligations as prescribed by the laws of the State of Colorado relating to undergrounding of the Company's overhead Facilities. ARTICLE 13 MISCELLANEOUS 13.1 Changes in Utility Regulation. The parties hereto acknowledge that regulatory and legislative changes in the electric utility, gas utility and other energy industries are currently being discussed nationwide and statewide; that some changes in utility industry sectors have already been implemented; and that other changes may be made in the future, during the term of this franchise. One likely scenario is the implementation of' open access to electric customers, and other energy customers, making such customers available to all utilities, thus eliminating or limiting territorial protections. Under this scenario one utility may contract to sell a type of energy to a customer, while another utility transports the energy to the customer for a fee charged to the other utility or the customer. The parties agree, that insofar as future changes in the utility laws will allow, the company shall always retain the right to bill customers for utility transportation services and energy sales within the Aspen Franchise Area if it is the provider of either the energy product or the transportation of such product. The parties agree that this will provide the most efficient and convenient utility service to the Residents of the Aspen Franchise Area and provide assurance to the City of franchise fee collection for each component charged for the sale and delivery of energy products within the Aspen Franchise Area. 13.2 Successors and Assigns. The rights, privileges, franchises and obligations granted and contained in this Ordinance shall inure to the benefit of and be binding upon Holy Cross Energy, its successors and assigns. 13.3 Representatives. Both parties shall designate from time to time in writing representatives to act as franchise agents for the Company and the City. Such will be the persons to whom notices shall be sent regarding any action to be taken under this Ordinance. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the persons or addresses are changed at the written request of either party. Until any such change shall hereafter be made, notices shall be sent to the City's Mayor and to the Company's General Manager. Currently the addresses for each are as follows: For the City: . City Manager 130 S. Galena Street Aspen, CO 81611 • 16 Approved and accepted for Holy Cross Energy by: /a/ For the Company: Mr. Kent Benham Holy Cross Energy P. O. Drawer 2150 Glenwood Springs, CO 81602 13.4 Entire Agreement. This franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this franchise. ARTICLE 14 APPROVAL 14.1 City Approval. This grant of franchise shall not become effective until approved by the City in accordance with its ordinances and the statutes of the State of Colorado. 14.2 Company Approval. The Company shall file with the City Clerk its written acceptance of this franchise and of all its terms and provisions within fifteen (15) days after the final adoption of this franchise by the City. The acceptance shall be in the form and content approved by the City Attorney. If the Company shall fail to timely file its written acceptance as herein provided, this franchise shall become null and void. Section 2. That if any section, subsection, sentence, clause, phrase or portion of this ordinance 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. A pu. ' hearing o the ordinance shall be held on the 5 1114--- day of / , 2003, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. • 17 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City trocil of the City of Aspen on the cQ — day of 2003. Ie ele . r ; - ., Mayor ATTEST: .or Kathryn S. Ko 4 ity -rk FIN_ . • ppted, • assed and approved this qt.—day . f jet s' , 2003. ser elen Klanderud, ayor AF11 ST: Kathryn S. Koc r Ci ty rCl� k JPW- 09/29/2 003 - G:\ john\ word\ agr\hotycross- franchisc9- 8 -03.doc R R 18 • Exhibit A HOLY CROSS ENERGY ACCOUNTS /CITY OF ASPEN Account Number Location - Department • • 271017601. Chargers • Golf 281008001 Pro Shop Gott 281012800 Irrigation Golf • 281015300 Restrooms Golf - • 281018901 Tiehack/Buttermilk Water 281019600 Tiehack Water Water 283003400 - Course Pump W. Golf 283011600 Course Pump E. Golf 28301/800 Parks Office Parks 283016400 Thomas Valve Water � . 284007001 Iselin Ballparks . Recreation • 284007100 Iselin Park Lights Recreation • 284007100 Iselin Parklights Recreation 284009500 Iselin Tennis Recreation - 284009500 Iselin Tennis • - Recreation 285000300 Water Filter & Chlorinator Water 285000700 Meadwood Pump Water 285002900 Castle Headgate Water 285017501 Castle Creek Water Plant _ Water 299901500 Maroon Creek Hydro Water 387506600 - Herron Park Parks 388500400 Triangle Park • Parks . 388512100 North Street Valve Water ' ' 388521901 City Shop , Streets 389007400 • Lower.Red Pump • Water 389008500 Ridge of Red Mtn Water - • • 389014000 Red Mtn Tank Water - 389015700 Upper Red Mtn Water _ 389018800 Hunter Creek Plant Water 389024900 Ruby Pump Station Water 389025100 - Supply Signal Water • 389029100 Red Mtn Pump Water 400112500 Little Nell Tank Water _ 400120000 ' Highlands Pump Station Water • 400120000 Highland Water - Water _ 400120300 Little Nel1.Pump Water • - 400130101 • Eagle Pines Water ' 490008400 - Glory Hole Parks • . 491517800 Willoughby Park Parks 491521800 Sprinkler@ S. 7th Parks 492500102 1101 E. Cooper - Anderson Parks • 492504900 Lower Aspen Grove . Water - 492510400 Upper Aspen Grove Water • 493010400 • Mountain Valley Water 493019000 • Knowllwood Pump Water • 493019200 • - Aspen Grove 2nd Tank • Water . - • 500100300 - 38775 Hwy 82 Water 500263401 500 Doolittle - Water 500369702 Silveriode Parks 500480700 Parks & Gott Maint Parks 500480900 480 Doolittle • Water . 500489700 Rio Grande Parks . 500844101 Moore/Cinnamon Water • 500979500 - Thunderbowl Water 501099600 - • Pro Shop Trailer - Golf • 501111600 39551 Hwy 82 Clubhouse Golf • 501116011 39552 Hwy 82 Clubhouse Golf • • 501117001 Golf Cart Bam - Golf 501188300 Golf Can Bam Golf 501252500 - Arc Building Recreation • The list of Municipally Owned Customers and affordable housing units that may be served by the City, at its option, by wheeling energy over the Company's system to a point of delivery is attached hereto as Exhibit "A" and by this reference made a part hereof. Said affordable housing units provided for herein may only be located within (a) the lands described by that certain Pre - Annexation - Agreement approved -by the Aspen City Council by Resolution No. 118, Series of 2000, upon annexation of such (ands; and (b) any lands annexed by the City, after the ' effective date hereof and currently within the City's Urban Growth Boundary. The affordable housing units specified herein shall not exceed • 500 units in aggregate and shall be constructed with funds from the CIty's Affordable Housing Fund. CITY OF ASPEN ORDINANCE NO. i (Series of 1998) AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, GRANTING A FRANCHISE TO HOLY CROSS ELECTRIC ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, INSTALL, CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN AND OPERATE INTO, WITHIN AND THROUGH A PORTION OF THE CITY OF ASPEN ALL NECESSARY AND CONVENIENT ' FACILITIES FOR THE PURCHASE, GENERATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICAL ENERGY, ` AND TO . FURNISH, SELL AND DISTRIBUTE SAID ELECTRICAL ENERGY TO THE RESIDENTS THEREOF FOR LIGHT, HEAT, POWER AND OTHER PURPOSES BY MEANS OF CONDUITS, CABLES, POLES AND WIRES STRUNG THEREON, OR OTHERWISE ON, OVER, UNDER, ALONG, ACROSS AND THROUGH ALL STREETS, ALLEYS, VIADUCTS, BRIDGES, ROADS, LANES AND OTHER PUBLIC WAYS AND PLACES THEREIN, ALL IN PITKIN COUNTY, COLORADO, AND FIXING THE TERMS AND CONDITIONS THEREOF. WHEREAS, the City staff and Holy Cross have negotiated an agreement providing for a grant of franchise subject to approval by the City Council of the City of Aspen and the electors of the City of Aspen; and WHEREAS, the. City Council has determined that the grant of franchise is in the best interests of the citizens of the City of Aspen. 1 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY.OF•ASPEN, COLORADO, THAT: Section 1. Subject to approval by a majority of the electors of the City of Aspen voting thereon in accordance with Section 11.4 of the Home Rule Charter of the City of Aspen, the following franchise agreement is hereby approved by the City Council: ARTICLE 1 SHORT TITLE 1.1 This Ordinance shall be known and may be cited as the "Holy Cross Electric Association, Inc. Franchise Ordinance." /' ARTICLE 2 DEFINITIONS For the purposes of this Ordinance, the following terms shall have the meanings given herein: 2.1 "Municipal Service Area" refers to a specific tract of land within the municipal boundaries of the City of Aspen described as follows: Beginning at a point lying easterly of Block 40 in the East Aspen Townsite, where the easterly extension of the center of Dean Street intersects the center of the Roaring Fork River; thence westerly along the center of Dean Street to the center of South Monarch Street; thence northerly along the center of South Monarch Street to the center of Durant Avenue; thence westerly along the center of Durant Avenue to the center of South Garmisch Street; thence northerly along the center of South Garmisch Street to the center of Cooper Avenue; thence westerly along the center of Cooper Avenue to its intersection with the boundary of the Original Aspen Townsite; thence northwesterly along the boundary of the Original Aspen Townsite to the center of South Fifth Street; thence northerly along the center of South Fifth Street to the center of West Hopkins Avenue; thence westerly along the center of West Hopkins Avenue to the center of South Seventh Street; thence northerly along the center of South Seventh Street to the center of Main Street; thence westerly to the southeast comer of the Villa Annexation, filed August 18, 1972, in Plat Book 4 at Page 270, Pitkin 2 County, Public Records; thence westerly along the southerly boundary of the Villa Annexation to the southwest corner thereof, thence northerly along the westerly boundary of the Villa annexation to the northwest corner thereof, thence easterly along the northerly boundary of the Villa Annexation to its intersection with the boundary of the Original Aspen Townsite; thence northerly along the boundary of the Original Aspen Townsite to the center of West Smuggler Street; thence easterly along the center of West Smuggler Street to its intersection with the boundary of the Original Aspen Townsite; thence southeasterly along the boundary of the Original Aspen Townsite to its intersection with the boundary of the Trueman Neighborhood Commercial Project, filed April 8, 1977, in Plat Book 5, at Pages 70 through 75 inclusive, of the Pitkin County, Colorado, Public Records; thence northeasterly along the boundary of the Trueman Neighborhood Commercial Project to its intersection with the center of Puppy Smith Street; thence southeasterly along the center of Puppy Smith Street to the intersection of Puppy Smith Street projected with the easterly right -of -way of Mill Street; thence southerly along the easterly right -of -way of Mill Street a distance of 63 feet, more or less, to the intersection of the easterly right -of- wayof Mill Street with the southwest corner of a tract of land described in Book 193 at Page 278, Pitkin County, Colorado, Public Records; thence southeasterly along the boundary of the said Tract of land described in said Book 193 at Page 278 a distance of 120 feet, more or less; thence northeasterly along the southeasterly boundary line of said Tract of land described in Book 193 at Page 278 to the intersection of said southeasterly boundary line projected with the center of the Roaring Fork River; ,rte thence easterly and southerly along the center of the Roaring Fork River to the point of beginning. 2.2 "Aspen Franchise Area" refers to all land inside the municipal boundaries of the City of Aspen, except for the Municipal Service Area, as of the date of enactment of the Ordinance, and all land annexed within such boundaries hereafter. 2.3 "City" is the City of Aspen, Pitkin County, Colorado, the home rule municipal corporation which is the grantor of rights under this franchise, and its successors. 2.4 "Company" refers to Holy Cross Electric Association, Inc., a Colorado corporation, the grantee of rights under this franchise, its successors and assigns. 2.5 "Council" refers to the legislative body of the City, known as the City Council of the City of Aspen, Colorado. 2.6 "Facilities" refers to all overhead and underground electric facilities, buildings, and structures necessary to provide electricity into, within and through the Aspen Franchise Area including, but not limited to, such essential apparatus, appliances, plants, systems, substations, works, transmission and distribution lines and structures, anchors, cabinets, cables, conduits, guy posts and guy wires, meters, microwave and P+,, communication facilities, overhead and underground lines, pedestals, poles, regulators, sectionalizers, switchgears, transformers, various pad mounted and pole 3 � — � mounted equipment, vaults, wires, and all other related electrical equipment required for the distribution, generation, maintenance, operation, purchase, and transmission of electrical energy. 2.7 "Public Easements" refers to easements created and available for use by any public utility for its facilities. 2.8 "Private Easements" refers to easements created and available only for use by the Company for its Facilities, or by the Company and other selected users or utilities. 2.9 . "Residents" refers to and includes all persons, businesses, industry, governmental agencies, and any other entity whatsoever, presently maintaining a residence or location in, or to be hereinafter located within, in whole or in part, the municipal boundaries of the Aspen Franchise Area. 2.10 "Revenues" unless otherwise specified refers to and are the gross amounts of money that the Company receives from its customers within the Aspen Franchise Area from the sale of bundled electrical energy, or the transportation, distribution, or sales of electric energy if unbundled, for any particular period of time. • 2.11 "Streets and Other Public Places" refers to streets, alleys, viaducts, bridges, roads, lanes and other public ways and places in the Aspen Franchise Area, subject to r limitations stated herein. ARTICLE 3 GRANT OF FRANCHISE 3.1 Grant of Right to Serve. Subject to the conditions, terms and provisions contained in this franchise, the City of Aspen hereby grants to the Company the right, privilege and authority to locate, build, install, construct, acquire, purchase, extend, maintain and operate into, within and through all of the Aspen Franchise Area all necessary and convenient Facilities for the purchase, generation, transmission, and distribution of electrical energy, together with the right and privilege for the period of this franchise, upon the terms and conditions herein specified to furnish, sell, and distribute said electrical energy to the Residents of the Aspen Franchise Area for light, heat and power or other purposes. Customers whose property straddles the Aspen Franchise Area and the Municipal Service Area shall continue to be served by the utility serving such customers at the time this Franchise Ordinance is enacted. In addition, the Company shall have the non - exclusive right, by agreement with the City, to locate Facilities within the Municipal Service Area which are necessary to serve customers within the Aspen Franchise Area. Consent is hereby reaffirmed for such Facilities already within the Municipal Service Area. r .\ 3.2 Scope of Grant. Such grant includes the right to furnish electrical energy either overhead, on poles and wires, or underground, or otherwise, on, over, under, along 4 across and through any and all Streets and Other Public Places, and on, over, under, along, across and through any extension, connection with, or continuation of, the same and/or on, over, under, along, across and through any and all such new Streets and Other Public Places as may be hereafter laid out, opened, located, or constructed within the municipal boundaries now or hereafter described as the Aspen Franchise Area. The Company is further granted the right, privilege and authority to excavate in, occupy and use any and all Streets and Other Public Places described herein under the supervision of the properly constituted authority of the City for the purpose of bringing electrical energy into, within and through the Aspen Franchise Area and supplying electrical energy to the Residents thereof; subject, however, to the City's usual and customary permitting process for said construction activity. 3.3 Service to City Facilities. The City hereby grants to the Company the non - exclusive right, privilege, and authority to provide street and security lighting to the Aspen Franchise Area, and to serve all municipally owned or operated structures, plants, equipment, or City apparatus and facilities, including the right, privilege, and authority to furnish, sell, and distribute electrical energy necessary for such. Notwithstanding any provision to the contrary herein, the City reserves the right to provide electric service to the Castle Creek Water Plant from the proposed Castle Creek Hydro Plant, provided the Company shall not be required to wheel electricity from the Hydro Plant to the Water Plant. ARTICLE 4 SPECIFIC Rl FMENTS OF GRANT 4.1 Recreational Areas. The Company shall not have the right to locate, build, or construct Facilities under, across, or through public parks or recreational areas located within the Aspen Franchise Area without prior written approval granted by the City Council. Said approval shall not be unreasonably withheld. 4.2 Trees and Shrubs. The Company shall have the right to control the growth of trees and shrubs as may be reasonably necessary to protect its Facilities. The Company may use machinery or other lawful methods to control such growth, but shall not use chemicals for such purpose. Annually, on a date mutually agreed to by both parties, representatives of each party shall meet and/or consult to discuss problems related to the means and methods of controlling such growth. Prior to cutting down or removing any tree, the Company shall consult with a representative of the City for the purpose of determining whether such cutting or removal is the only reasonable and cost effective means of protecting the Company's Facilities. 4.3 Location of Company's Facilities. Wherever reasonable and practicable, the Company will endeavor to install its Facilities within Public Easements. The a Company shall locate its Facilities within the Aspen Franchise Area so as to cause minimum interference with the City's water mains, sewer mains, storm drains, and 5 the proper use of streets, alleys, and other public ways and places and so as to cause minimum interference with the rights or reasonable convenience of property owners whose property adjoins any of the said streets, alleys or public ways and places. 4.4 Restoration of Public and Private Improvements. Should it become necessary for the Company, in exercising its rights and performing its duties hereunder, to interfere with any sidewalk, pavement, water main, sewer, storm drain, or any other public or private improvement, the Company shall at its own expense and in a workmanlike manner, repair or cause to be repaired and restored to its original condition such sidewalk, graveled or paved street, road, alley, water main, sewer, storm drain or other public or private improvement after the installation of its Facilities, provided, however, that upon failure of the Company to do such required repairs within a reasonable time and in a workmanlike manner, the City may perform the required work and charge the Company for all reasonable costs thereof. Nothing hereinabove shall be construed to obligate the Company to pay for the removal and relocation of its Facilities where such is at the request or demand of a person, or a public or private entity under circumstances which require the party requesting or demanding such to pay for the relocation under other provisions hereof, or under the provisions of the Company's Line Extension Policy or Underground Conversion Policy (See Article 12). 4.5 Use of Facilities. The Company shall have the right to make such use of its F ,,.- - Facilities and other property, other than the uses contemplated in the .Ordinance as it deems proper so long as such other use does not interfere with its ability to supply electrical energy. 4.6 Changed Conditions . If at any time it shall be necessary to change the position of any pole, conduit or service connection of the Company to permit the City to lay, make or change street grades, pavements, sewers, water mains, or other City works, such changes shall be made by the Company at its own expense, after reasonable notice from the City. 4.7 Compliance with City Requirements. The Company shall . comply with all City requirements regarding curb and pavement cuts, excavating, digging and related construction activities. If requested by the City, the Company shall submit copies of reports of annual and long -term planning for capital improvement projects with descriptions of required street cuts, excavation, digging and related construction activities within thirty (30) days after issuance or request. 4.8 City Review of Construction and Design. Prior to construction of any significant Facilities within the Aspen Franchise Area, if requested by the City, the Company shall furnish to the City the plans for such proposed construction. In addition, the Company shall assess and report on the impact of such proposed construction on the /'k City environment. Such plans and reports may be reviewed by the City to ascertain, inter alia, (1) that all applicable laws including building and zoning codes and air and 6 ,/^" water pollution regulations are complied with, (2) that aesthetic and good planning principles have been given due consideration, and (3) that adverse impact on the environment has been minimized. 4.9 Capital Improvement Pmiects. The Company and the City shall endeavor to inform one another of any capital improvement projects anticipated within the Aspen Franchise Area. The party proposing such capital improvements shall inform the other party of the nature of such improvements within a reasonable time after plans for such improvements have been substantially formulated. Each party shall cooperate in the timely exchange of all necessary information, design data, drawings, and reports to properly assess and evaluate the potential impacts of said improvements. 4.10 Maintenance of Facilities. The Company shall install, maintain, repair, replace, and upgrade its Facilities to ensure both the adequacy of and quality of, electric service to the Aspen Franchise Area. All excavation and construction work done by or under the authority of the Company shall be done in a timely and expeditious manner which minimizes the inconvenience to the Residents. 4.11 City Not Required to Advance Funds. Upon receipt from the City of an authorization to proceed, and a promise to pay for construction, the Company shall extend its Facilities to the Aspen Franchise Area for municipal uses therein or for any ' municipal facility outside the municipal boundaries of the Aspen Franchise Area and within the Company's certificated service area, without requiring the City to advance funds prior to construction. 4.12 Scheduled Interruptions. The Company shall, when reasonable and practical, give notice, either oral or written, to the City and its affected Residents, of planned service interruptions of significant duration. ARTICLE 5 RATES, REGULATIONS, UNIFORMITY OF SERVICE. AND UPGRADES 5.1 Furnishing Electrical Energy. The Company shall furnish electrical energy within the Aspen Franchise Area to the Residents thereof at the applicable and effective rates and under the terms and conditions set forth in the Rate Schedules, Standards for Service, Rules and Regulations, and Service Connection and Extension Policies, adopted by and on file with the Company, subject only to regulation thereof as is provided by law. The Company shall not, as to rates, charges, service, facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any resident, or subject any resident to any disadvantage or prejudice, provided that nothing in this grant shall be taken to prohibit the establishment from time to time of a graduated scale of charges and classified rate schedules to which any customer t es coming within an established classification would be entitled. • 7 --� 5.2 Facility Upgrades. The Company will, from time to time, during the term of this franchise make such improvements, enlargements and extensions of its Facilities incorporating, when reasonable and practical, technological advances within the industry as the business of the Company and the growth of the Aspen Franchise Area justify, in accordance with its Standards for Service, Rules and Regulations, and Service Connection and Extension Policies for electric service concurrently in effect and on file with the Company, subject only to regulations thereof as is provided by law. 5.3 Reliable Supply of Electricity. The Company shall take all reasonable and necessary steps to provide an adequate supply of electricity to its customers at the lowest reasonable cost consistent with long -term reliable supplies. If the supply of electricity to its customers should be interrupted, the Company shall take all necessary and reasonable actions to restore such supply within the shortest practicable time. 5.4 Changes in Rates and Service. The Company, from time to time, may promulgate such rules, regulations, terms and conditions goveming the conduct of its business, including the use of electrical energy and payment therefor, and the interference with, or alteration of any of the Company's property upon the premises of its customers, as shall be necessary to ensure a continuous and uninterrupted service to each and all of its customers and the proper measurement thereof and payment therefor. 5.5 Maps and Regulations. The Company shall, submit copies of its Standards for Service, Service Connection and Extension Policies, Rules and Regulations, and maps of its Facilities within the City boundaries to the City Clerk. All changes in such maps, Standards for Service, Rules and Regulations, and policies, shall be submitted to the City as the same may from time to time occur. 5.6 Subdivision Review. The Company shall analyze any subdivision plats or planned unit development plans submitted to it by the City and respond to any request by the City for information regarding the adequacy of its Facilities necessary to serve such proposed plat or plan and answer any other questions posed to the Company by the City regarding said plat or plan as are within the knowledge of the Company. The Company shall respond to said requests or questions within reasonable time limits set by the City's Subdivision Regulations. 5.7 Compliance with Laws. The Company agrees to abide by all ordinances of the City, unless and except to the extent that this Franchise Ordinance shall relieve the Company of the obligation to comply with terms and conditions of such other ordinances or any other provisions thereof. The Company shall also comply with all County, State or Federal laws, rules and regulations, ordinances or resolutions related to the subject matter hereof. f 8 \ ARTICLE 6 USE OF COMPANY FACILITIES 6.1 Use of Poles by City. The City shall have the right, without cost, to jointly use all poles and suitable overhead structures within the Aspen Franchise Area for the purpose of stringing wires thereon for any reasonable City authorized use; which use shall not include the distribution or transmission of electricity; provided, however, that the Company shall assume no liability, nor shall it be put to any additional • expense, in connection therewith, and said use shall not interfere in any unreasonable manner with the Company's use of same, or the use thereof by the Company's permittees, licensees, or other then existing users of such Facilities. Use of Facilities hereunder by the City shall not apply to the City's licensees and assignees. The Company agrees to permit City licensees and franchisees, except those holding an electric utility franchise or license from the City, to use its Facilities upon reasonable terms and conditions to be contractually agreed upon with the Company, in writing. ARTICLE 7 INDEMNIFICATION AND POLICE POWER 7.1 City Held Harmless. The Company shall indemnify, defend and save the City, its officers and employees, harmless from and against all liability or damage and all feTh claims or demands whatsoever in nature arising out of the operations of the Company within the Aspen Franchise Area pursuant to this franchise, and the securing of, and the exercise by the Company of, the franchise rights granted in this ordinance and shall pay all reasonable expenses arising therefrom. The City will provide prompt written notice to the Company of the pendency of any claim or action against the City arising out of the exercise by the Company of its franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. In the event a claim or claims for injury or damage is brought against the Company, and such shall include a claim of responsibility against the City, both parties shall defend the respective claim or claims brought against each, and each shall be responsible for its own attorney's fees during the pendency and continuation of any such action or proceeding. At the conclusion of the litigation or proceeding, whether by settlement, dismissal, order of court or administrative agency, or otherwise, if a determination is made that the City is in no way responsible for the claim or claims, or that the Company is solely responsible, the Company shall promptly reimburse the City for its attorneys fees and costs incurred in defending such claim or claims. 7.2 Police Power Reserved. The right is hereby reserved to the City to adopt from time to time, in addition to the provisions herein contained, such Ordinances as may be deemed necessary in the exercise of its police power, provided that such regulations P shall be reasonable' and not destructive of the rights herein granted, and shall not be in conflict with the agreements herein made, and not in conflict with the laws of the 9 State of Colorado, or with orders of other authorities having jurisdiction in the premises. ARTICLE 8 FRANCHISE 1-ht. 8.1 Franchise Fee. As a further consideration for this franchise, and accepted by the City in lieu of all occupancy and license taxes and all other special taxes, assessments, fees, or excises upon the Facilities or other property of the Company, or other levies that might be imposed, either as a franchise tax, occupation tax, occupancy tax, or license tax, permit charge or fee, or contractor's license fees for work contracted to be performed under contract with the Company, or for the inspection of Facilities, or other property, and charges which would otherwise be chargeable to the Company, or otherwise, the Company shall pay to the City a sum equal to three percent (3 %) of its quarterly gross Revenues collected within the Aspen Franchise Area. Electric Revenues received from City facilities will not be assessed a 3% fee under this section nor will the City be paid the 3% fee from such Revenues collected from City facilities. 8.2 Payment. Payment shall be made on or before thirty (30) days after the end of each quarter of each calendar year for the three (3) month period next previous, but shall be adjusted for the portions of the calendar quarters at the beginning and at the end of this franchise. All payments shall be made to the City Clerk. 8.3 Revenue Audit. For the purpose of ascertaining or auditing the correct amount to be paid under the provisions of this Article, the Company shall file with the City Clerk, or such other official as shall be designated by the City from time to time, a statement, in such reasonable form as the City may require, showing the total gross receipts received by the Company within the municipal boundaries of the Aspen Franchise Area within the preceding three (3) month period. The City Clerk or any official appointed by the Board shall have access to the books of said Company for the purpose of confirming the quarterly gross Revenues received from operations within the Aspen Franchise Area. 8.4 Correction of Underpayment/Overpayment. Should either the Company or the City discover either an underpayment or overpayment of the quarterly franchise fee, the party making such discovery shall inform the other party within a reasonable time. If the error is substantiated as an underpayment, the Company shall make payment of the deficiency within thirty (30) days of the date the error was substantiated. If the error is substantiated as an overpayment, a credit equal to the overpayment will be applied to the next quarterly franchise payment due the City. 8.5 Occupancy Tax Alternative. In the event the said franchise fee levied herein should P be declared invalid and/or shall be set aside by a Court of competent jurisdiction, then, and in such event, and in Lieu thereof, the City may thereafter levy an occupancy 10 tax upon the Company, not to exceed in any one calendar year three percent (3%) of the gross Revenues collected within the Aspen Franchise Area for that calendar year. In the event the one percent (1 %) community enhancement fee shall also be declared invalid and/or shall be set aside by a court of competent jurisdiction, then the occupancy tax levied upon the Company by the City shall be four percent (4 %) instead of three percent (3 %). Such occupancy tax shall be adjusted for any franchise fees or enhancement fees previously paid to the City in such calendar year. In the event the City shall enact such an occupancy tax, in lieu of the franchise fee and/or enhancement fee levied hereunder, all of the remaining terms, conditions and provisions of this Ordinance shall remain in full force and effect for the period stated herein. 8.6 Franchise Fee Payment in Lieu of Other Fees. As indicated in Section 8.1, above, the franchise fee paid by the Company is accepted by the City in lieu of any occupancy tax, license tax, permit charge, inspection fee, or similar tax on the privilege of doing business or in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its property or any other tax not related to the franchise or the physical operation thereof and does not exempt the Company from payment of head taxes or other fees or taxes assessed generally upon business. 8.7 Payment of Expenses Incurred by City in Relation to Ordinance. At the City's te \ option, the Company shall pay in advance or reimburse the City for expenses incurred in publication of notices and ordinances and for photocopying of documents arising out of the negotiations or process of obtaining this franchise and the proportional share of the cost of an election seeking the approval of a majority of the City electors voting thereon. ARTICLE 9 REPORTING AND CHANGE IN FRANCHISE FEE 9.1 Reports. The Company shall submit reasonable and necessary reports containing, or based upon, information readily obtainable from the Company's books and records as the City may request with respect to the operations of the Company under this franchise, and shall, if requested, provide the City with a list of real property within the Aspen Franchise Area which is owned by the Company. 9.2 Change of Franchise Fee. The Company shall, upon request from the City, notify the Council of any changes in the franchise fee percentage made in other municipalities served by the Company under a franchise within the State of Colorado. If the Council decides the franchise fee percentage charges hereunder shall be changed, it shall provide for such change by Ordinance; provided, however, that any change in the franchise fee shall then be surcharged by the Company to the Residents ie"'\ of the Aspen Franchise Area 11 f 9.3 Conies of Tariffs. Upon request, the Company shall furnish the City with copies of any tariffs currently in use. ARTICLE 10 ADMINISTRATION 10.1 Duration of Franchise. This Ordinance shall be in full force and effect from and after its passage as by law required and the terms, conditions and covenants hereof shall remain in full force and effect for a period of one (1) year from and after such enactment. This Ordinance shall automatically be renewed, without notice, for four (4) additional one (1) year terms; provided, however, that the City may give notice of termination of the Ordinance to the Company, in writing, by certified mail, return receipt requested, delivered to the Company at Ieast six (6) months prior to any anniversary date of its commencement. 10.2 Amendments. At any time during the term of this franchise, the City through its Council, or the Company, may propose amendments to this franchise by giving thirty (30) days written notice to the other party of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, shall within a reasonable time, negotiate in good faith in an effort to agree upon a mutually satisfactory amendment(s). No amendment(s) to this franchise shall be effective until mutually agreed upon by the. City and the Company and until all public notice requirements pursuant to Colorado statutes, and ordinance requirements of the City, have been met. This section shall not apply to franchise fee changes under Article 9. 10.3 Revocation of Privileges. This franchise Ordinance does not limit the eminent domain rights, powers, authority, or defenses of either party under the laws and Constitution of the State of Colorado. 10.4 Compliance Impaired. Both the Company and the City recognize there may be circumstances whereby compliance with the provisions of this franchise is impossible or is delayed because of circumstances beyond the Company's or City's control. In those instances, the Company or City shall use its best efforts to comply in a timely manner and to the extent possible. 10.5 Company's Failure to Perform. It is agreed that in case of the failure of the Company to perform and carry out any of the stipulations, terms, conditions, and agreements herein set forth in any substantial particular, wherein such failure is within the Company's control and with respect to which redress is not otherwise herein provided, the City, acting through its Council, may, after hearing, determine such substantial failure; and, thereupon, after notice given the Company of such failure, the Company may have a reasonable time, not less than sixty (60) days and not to exceed six (6) months, in which to remedy the conditions respecting which such notice shall /"1 have been given. After the expiration of such time and the failure to correct such conditions, the Council shall determine whether any or all rights and privileges 12 granted the Company under this ordinance shall be forfeited and may declare this franchise null and void. 10.6 Ownership of Facilities. All Facilities used or placed by the Company within the municipal boundaries of the Aspen Franchise Area shall be and remain the property of the Company. 10.7 Transfer of Rights. The Company shall not transfer or assign any rights under this franchise to a third party, excepting only corporate reorganizations of the Company not including a third party, unless the City shall approve in writing such transfer or assignment. Approval of the transfer or assignment shall not be unreasonably withheld. 10.8 Removal of Facilities. Upon the expiration of this franchise, if thereafter the Company Facilities shall not be used for electric, telephone, or cable TV purposes for a period of twelve (12) successive months, and the City shall thereafter give written notice to the Company directing it to remove such Facilities, the Company shall forthwith remove the same no later than six (6) months after the date of such notice. Any Facilities, either underground or overhead, remaining after such time shall be deemed to have been abandoned. Any liability associated with Facilities abandoned by the Company and claimed by the City shall become the liability of the City. 10.9 Non - renewal of Franchise; Alternative Electric Service. If this franchise is not renewed, or if it is declared null and void, or the Company terminates any service provided for herein for any reason, and the City has not provided for alternative electric service to the Residents of the Aspen Franchise Area, the Company shall not remove its Facilities and shall be obligated to continue electric service to the Residents until alternative electric service is provided. The Company will not withhold any temporary services necessary to protect the public. ARTICLE 11 COMMUNITY ENHANCEMENT FUND 11.1 Purpose. The Company is committed to programs designed to make a difference in people's lives and the communities in which they reside. The Company will voluntarily make monetary resources available to the City for such programs and/or activities. Programs for which such funds shall be spent shall be limited to: (1) Beautification projects; (2) Energy conservation projects; (3) Equipment and technology upgrades for schools; (4) Scholarship funds; (5) Acquisition of open space and/or park land and development thereof; (6) Sponsorship: of special community events; (7) Undergrounding of overhead electric and other utility lines. Funds made available under this Article may be spent for other purposes only with the express written consent of the Company. This program has been initiated solely by the r / \ Company; the City has not made the program a requirement for this franchise. 13 Funding for this program is not a cost of doing business but is a voluntary contribution by the Company. 11.2 Payments to the Fund. Within thirty (30) days after enactment of this Ordinance, the Company will establish an initial fund amount of $2,000.00. Whenever a full calendar year has transpired after the inception date of this franchise, the Company shall then pay to the City for the fund an amount equal to one percent (1%) of the gross Revenues collected within the Aspen Franchise Area for such calendar year plus any partial calendar year that transpired after the inception of the franchise ordinance. Thereafter, the Company shall make annual payments to the fund equal to one percent (1%) of its prior year's gross Revenues, or $2,000.00, whichever amount is greater. Said payments shall be made into the fund no later than February 15 of the year subsequent to the calendar year in which the gross Revenues are received by the Company. 11.3 The Fund. The Fund established by the Company shall be maintained in a bank account in the name of the City, but shall be maintained separately from all other funds and accounts held by the City. 11.4 Payments from the Fund. All payments from the fund shall be for projects described in Section 11.1 hereof. Prior to any such expenditure, authorization to withdraw from the fund shall be given by resolution or ordinance duly enacted by the rTh Council, and such resolution or ordinance shall clearly describe the nature and purpose of the project for which the expenditure is made. 11.5 Audits. The City may audit the Company's books related to gross Revenues collected within the Aspen Franchise Area at any reasonable time and with reasonable prior notice. The Company may audit the fund account, expenditures from the fund, and resolutions and ordinances authorizing such expenditures at any reasonable time and with reasonable prior notice. 11.6 Forfeiture of Enhancement Funds. The Company shall have the express right to temporarily suspend or terminate in full its annual contributions to the Enhancement Fund if it is determined that funds allocated and paid to the City are being, or have been, misappropriated, administered with bias or discrimination, or for other - inappropriate actions. ARTICLE 12 UNDERGROUNDING 12.1 At Consumer's Request. If a customer or consumer within the Aspen Franchise Area should request that new Facilities be installed underground, or for the conversion of existing overhead Facilities to underground Facilities, or if City c`\, ordinances or resolutions require a customer or customers to install Facilities underground, the Company shall proceed in accordance with its Line Extension 14 i, Policy, Advice Letter Number 8, dated July 30, 1976 (herein "Line Extension Policy ") and in accordance with its Policy Statement, Conversion From Overhead to Underground Facilities, June 15, 1988 (herein "Underground Conversion Policy"), as each may from time to time be amended. 12.2 City Requested Undergrounding. Except for the Company's contributions to the Community Enhancement Fund, which may be used by the City to pay for the undergrounding of the Company's Facilities, any request, requirement imposed by resolution or ordinance, or other communication from the City to the Company, asking, or requiring the Company to underground new Facilities or existing overhead Facilities, or move or remove existing underground Facilities, shall be responded to in accordance with the provisions of the Company's Line Extension Policy and Underground Conversion Policy. The City acknowledges receipt of a copy of both policies. No provision contained in this franchise Ordinance, or the Company's Line Extension Policy, or Underground Conversion Policy, shall relieve the Company of its obligations as prescribed by the laws of the State of Colorado relating to undergrounding of the Company's overhead Facilities. ARTICLE 13 MISCELLANEOUS. 13.1 Changes in Utility Regulation. The parties hereto acknowledge that regulatory and f e--\ legislative changes in the electric utility, gas utility and other energy industries are currently being discussed nationwide and statewide; that some changes in utility industry sectors have already been implemented; and that other changes may be made in the future, during the term of this franchise. One likely scenario is the implementation of open access to electric customers, and other energy customers, making such customers available to all utilities, thus eliminating or limiting territorial protections. Under this scenario one utility may contract to sell a type of energy to a customer, while another utility transports the energy to the customer for a fee charged to the other utility or the customer. The parties agree, that insofar as future changes in the utility laws will allow, the company shall always retain the right to bill customers for utility transportation services and energy sales within the Aspen Franchise Area if it is the provider of either the energy product or the transportation of such product. The parties agree that this will provide the most efficient and convenient utility service to the Residents of the Aspen Franchise Area and provide assurance to the City of franchise fee collection for each component charged for the sale and delivery of energy products within the Aspen Franchise Area. 13.2 Successors and Assigns. The rights, privileges, franchises and obligations granted and contained in this Ordinance shall inure to the benefit of and be binding upon Holy Cross Electric Association, Inc., its successors and assigns. r aiN 15 r ", 13.3 Representatives. Both parties shall designate from time to time in writing representatives to act as franchise agents for the Company and the City. Such will be the persons to whom notices shall be sent regarding any action to be taken under this Ordinance. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the persons and addresses are changed at the written request of either party. Until any such change shall hereafter be made, notices shall be sent to the City's Mayor and to the Company's General Manager. Currently the addresses for each are as follows: For the City: City Manager 130 S. Galena St. Aspen, Colorado 81611 For the Company: Mr. Kent Benham Holy Cross Electric Association, Inc. • P O Drawer 2150 Glenwood Springs, CO 81602 13.4 Entire Agreement. This franchise constitutes the entire agreement of the parties. There have been no representations made other than those contained in this franchise. ARTICLE 14 APPROVAL 14.1 City Approval. This grant of franchise shall not become effective until approved by the City in accordance with its ordinances and the statutes of the State of Colorado. 14.2 Company Approval. The Company shall file with the City Clerk its written acceptance of this franchise and of all its terms and provisions within fifteen (15) days after the final adoption of this franchise by the City. The acceptance shall be in the form and content approved by the City Attorney. If the Company shall fail to timely file its written acceptance as herein provided, this franchise shall become null and void. Section 2. That if any section, subsection, sentence, clause, phrase or portion of this ordinance 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. 16 A public hearing on the ordinance shall be held on the /! day of a r; 1998, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. r INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the I day of c c2- , .. , 1998. John S. ennett, Mayor AIM ST._ 1 Kathryn S. K•,a , City Clerk FINALLY adopted, passed and approved this 1/ day of , 1998. John S.rBenn -1 t, Maq ATTEST: / • i o / ' _ Kathryn S. / , City erk JPW- 05ro8/98- G:yobn wordwrd$\ho-@an4 doc 17 MEMORANDUM "t( TO: Mayor Ireland and Aspen City Council THRU: Chris Hendon, Community Development Director WI FROM: Sara Adams, Senior Planner RE: Affordable Housing GMQS code amendment: First Reading, Ordinance No.tq , Series of 2011. Second Reading is scheduled for May 23, 2011. MEETING DATE: April 25, 2011 SUMMARY: Projects that are required to develop affordable housing, with the exception of single family and duplex residences, are reviewed by the Planning and Zoning Commission for Growth Management approval pursuant to Section 26.470.070.4. This Section requires affordable housing to meet specific criteria related to compliance with the Aspen/Pitkin County Housing Authority (APCHA) Guidelines including: mitigation requirements; ownership requirements; affordable housing credit eligibility; and the requirement that 50% or more of the unit's net livable area is at or above finished or natural grade, whichever is higher. Similar to design variances for Accessory Dwelling Units, Staff proposes a code amendment that permits the percentage of the unit's net livable area that is at or above finished or natural grade to be varied at the discretion of the Planning and Zoning Commission through the Special Review process. Staff recommends adoption of this code amendment. BACKGROUND: During the Conceptual PUD review process for the Aspen Walk project (404 and 414 Park), the intent of the review criterion that requires half of a unit's net livable area to be developed above natural or finished grade was discussed. Aspen Walk proposes "garden level" affordable housing units that are 2 or 3 feet below grade, and more than 50% of the units' volumes are above grade, however, the units do not meet the current criterion noted in italics above. City Council (during Conceptual Review), the Applicant and Staff both agreed that a code amendment to allow specific sub -grade affordable housing units was appropriate to bring forward. It is Staff's opinion that the intent of this criterion is to prevent sub -grade affordable housing units that are unlivable (i.e dungeon spaces); however the standard does not differentiate between livable and unlivable units that may be partially sub - grade. There is no flexibility for the Planning and Zoning Commission to vary this standard considering site constraints, the overall project and most important, the design and livability of the units. It can be argued that not all sub -grade spaces are unlivable — well designed sub -grade spaces with, for example, large windows and a sunken private patio can be a very livable and private residential space. Staff proposes the following code amendment to permit the Planning and Zoning Commission, with a recommendation from the Housing Board, to vary the Affordable Housing GMQS Code Amendment City Council First Reading Memo, April 25, 2011 Page 1 of 3 requirement that 50% of an affordable housing unit's net livable is located above natural or finished grade through the Special Review process. PROPOSED CODE AMENDMENTS: (see attached Ordinance for reference) 26.430.030 Applicability. The proposed change adds the ability to vary the affordable housing unit criteria for net livable space through Special Review. The Code currently permits ADU and Carriage House design standards to be varied through the Special Review process. This amendment would allow Affordable Housing Units to be varied through the same review process but subject to different review standards. 26.430.040 Review standards for special review. Staff proposes that, based on a recommendation from the Housing Board, the Planning and Zoning Commission has the authority to grant a variation of the percent net livable above grade for affordable housing units subject to the following criteria: I. Affordable housing unit standards. Whenever a special review is conducted to reduce the required percentage that the finished floor level of the unit's net livable area is at or above natural or finished grade, whichever is higher, a recommendation from the Housing Board shall be obtained and all of the following criteria shall be met: 1. The proposed affordable housing units are designed in a manner which exceeds the expectations of the Aspen Pitkin County Housing Authority Guidelines, and promotes the unit's general livability by demonstrating compliance with as many of the following conditions as possible: a. Significant storage, such as additional storage outside the unit. b. Above average natural light, such as adding more window area than the Building Code requires. c. Net livable unit sizes exceed minimum requirement. d. Unit amenities, such as access to outdoor space or private patios. 2. The proposed affordable housing units are designed in a manner that meets the following criteria: a. Compatibility with the character of the neighborhood. b. Design is an appropriate response to unique site constraints, such as topography. The review criteria listed in Part I.1 are similar to the standards that the Housing Board apply to projects that request a variation of the minimum net livable unit size. The goal is to ensure that the housing units provide a positive livable experience by providing extra amenities: excess storage, large window area (the adopted Building Code requires glazing equivalent to 10% of the area of the room), exceeds minimum unit size, and/or private patios or private outdoors space. The Planning and Zoning Commission struggled with identifying specific elements that may balance the livability of a subgrade unit. It is important that the quality trade -off of varying the amount of sub -grade net livable space in a housing unit is balanced in other areas of the unit or housing portion of the project. The proposed review is discretionary by the Planning and Zoning Affordable Housing GMQS Code Amendment City Council First Reading Memo, April 25, 2011 Page -2 -of3 Commission and asks the Commission to weigh the proposed amenities provided for the subgrade units to determine whether the proposal is acceptable and provides livable units. The Housing Chapter of the AACP states that "housing policy should emphasize the development of neighborhoods and community, not just units." Part I.1 of the criteria addresses the individual unit design, while Part 1.2 of the criteria steps back and assesses the proposed project from a comprehensive perspective by considering the impacts of sub -grade units on neighborhood character and site constraints to encourage the project to positively respond to the natural and built landscapes. HOUSING BOARD RECOMMENDATION: The Housing Board recommended in favor of the proposed code amendment language at their regular meeting on February 2, 2011 with a 4 -0 vote. P & Z RECOMMENDATION: During their regular meeting on March 1, 2011, the Planning and Zoning Commission voted 5 -1 in favor of the proposed code amendment. Minutes from the meeting are attached as Exhibit C. In summary, the Commission discussed the types of amenities that would benefit and increase the livability of the individual units in the long term. For example P &Z viewed requiring energy efficient appliances and outdoor amenity space for the entire building as elements that could be changed in the future and were indirect amenities for the residents of the subgrade units. The Commission decided to recommend criteria that are direct amenities for the subgrade unit resident and enhance livability such as: larger windows, private patios and larger unit sizes. STAFF RECOMMENDATION: Staff recommends adoption of the proposed code amendment on First Reading. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Ordinance No.I4, Series of 2011, approving with conditions the proposed code amendment regarding Growth Management Review for Affordable Housing on first reading." CITY MANAGER COMMENTS: ATTACHMENTS: Ordinance # f ' , Series of 2011 EXHIBIT A — Section 26.310.040 Standards of Review. EXHIBIT B — Planning and Zoning Commission Resolution Number 05 (Series of 2011). EXHIBIT C — Meeting minutes from the Planning and Zoning Commission meeting dated March 1, 2011. EXHIBIT D - Housing Board Recommendation. Affordable Housing GMQS Code Amendment City Council First Reading Memo, April 25, 2011 Page - 3 - of 3 Ordinance No. 1 ` (SERIES OF 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AMENDMENTS TO THE FOLLOWING CHAPTERS AND SECTIONS OF THE CITY OF ASPEN LAND USE CODE OF THE CITY OF ASPEN MUNICIPAL CODE: 26.430 SPECIAL REVIEW AND 26.470.070.4 GROWTH MANAGEMENT QUOTA SYSTEM - AFFORDABLE HOUSING. WHEREAS, in accordance with Sections 26.210 and 26.310 of the City of Aspen Land Use Code, the Director of the Community Development Department initiated amendments to the Land Use Code related to the review standards for Affordable Housing Growth Management Review; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Community Development Director and then by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Sections 26.430.030 Special Review Applicability, 26.430.040 Review standards for Special Review, 26.470.070.4 GMQS - Minor Planning and Zoning Commission applications for Affordable Housing, as described herein; and, WHEREAS, the Planning and Zoning Commission held a duly noticed public hearing to consider the proposed amendments described herein on February 15, 2011 continued to March 1, 2011, took and considered public testimony and the recommendation of the Director and recommended, by a 5 - 1 vote, City Council adopt the proposed amendments. WHEREAS, during a duly noticed public hearing on May 23, 201a, the City Council took public testimony, considered pertinent recommendations from the Community Development Director, referral agencies, Planning and Zoning Commission, and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Aspen City Council finds that the development proposal meets or exceeds all the applicable development standards and that the approval of the development City of Aspen City Council Ordinance No. , Series of 2011 Page 1 of 3 proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1: Pursuant to Section 26.310 of the Municipal Code, the City of Aspen City Council hereby approves the amendments to Section 26.430.040 Special Review, which section defines review criteria for projects subject to special review, with the addition of Section I, to read as follows: I. Affordable housing unit standards. Whenever a special review is conducted to reduce the required percentage that the finished floor level of the unit's net livable area is at or above natural or finished grade, whichever is higher, a recommendation from the Housing Board shall be obtained and all of the following criteria shall be met: 1. The proposed affordable housing units are designed in a manner which exceeds the expectations of the Aspen Pitkin County Housing Authority Guidelines, and promotes the unit's general livability by demonstrating compliance with as many of the following conditions as possible: a. Significant storage, such as additional storage outside the unit. b. Above average natural light, such as adding more window area than the Building Code requires. c. Net livable unit sizes exceed minimum requirement. d. Unit amenities, such as access to outdoor space or private patios. 2. The proposed affordable housing units are designed in a manner that meets the following criteria: a. Compatibility with the character of the neighborhood. b. Design is an appropriate response to unique site constraints, such as topography. Section 2: Pursuant to Section 26.310 of the Municipal Code, the City of Aspen City Council hereby approves the amendments to Section 26.470.070.4.0 Growth Management Review for Affordable Housing, which section describes dimensional conditions for the amount that an affordable housing unit's net livable area is at or above grade, shall be amended as follows: City of Aspen City Council Ordinance No. , Series of 2011 Page 2 of 3 c. Each unit provided shall be designed such that the finished floor level of fifty percent (50 %) or more of the unit's net livable area is at or above natural or finished grade, whichever is higher. This dimensional requirement may be varied through Special Review, pursuant to Section 26.430. Section 3: A public hearing on the Ordinance was held on the 23 day of May, 2011, at 5:00 p.m. in Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. Section 4: This ordinance 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. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this ordinance 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. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25 day of April, 2011. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this day of , 2011. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: City Attorney City of Aspen City Council Ordinance No. , Series of 2011 Page 3 of 3 Exhibit A Sec. 26.310.040. Standards of review. In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Response: The proposed amendment is not in conflict with any applicable portions of the Municipal Code. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. Staff Response: Staff finds that the proposed amendment is consistent with the AACP, specifically the following statements from the Housing and Design Quality Chapters: "Create an affordable housing environment that is appropriately scaled and distributed throughout existing and new neighborhoods..." (Intent, pg 25) Response: The proposed amendment creates a situation where the Planning and Zoning Commission, based on a recommendation from the Housing Board, has the authority to vary the amount that an affordable housing unit is below grade in exchange for the unit exceeding the minimum standards in other areas of design. Allowing a partially subgrade unit may result in a lower height of the building or a more appropriate response to topography or other site constraints. "Housing should be compatible with the scale and character of the community and should emphasize quality construction and design even though that emphasis necessarily increases costs and lessens production." (Philosophy, pg 25) Response: The proposed amendment takes into account both the specific design of the individual units and amenities, and it weighs the compatibility of the subgrade units within the neighborhood. "Consideration should be given to minimize the development footprint of all affordable housing projects without compromising the appropriate density or the livability of the project." (Policies, pg 26) Response: Staff finds that providing the Planning and Zoning Commission with the discretion to allow partially subgrade units offers some design flexibility that may result in minimizing the development footprint of the overall project. Affordable Housing GMQS Code Amendment Exhibit A April 25, 2011 Page 2 of 3 "We wish to encourage creativity that results in design solutions that are fresh and innovative, yet are net additions to the built environment by being contextually appropriate and harmonious without being copies of that which already exists." (Philosophy, pg 43) Response: The flexibility to vary the affordable housing standard encourages creative solutions that support livability and innovative thinking for affordable housing units. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. Staff Response: n/a D. The effect of the proposed amendment on traffic generation and road safety. Staff Response: n/a.. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools and emergency medical facilities. Staff Response: n/a. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Staff Response: n/a. G. Whether the proposed amendment is consistent and compatible with the community character in the City. Staff Response: The proposed amendment incorporates neighborhood compatibility into the review criteria for granting a variation from the dimensional requirement. Staff finds that the proposed amendment is consistent with the community character in the City. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Response: n/a. Affordable Housing GMQS Code Amendment Exhibit A April 25, 2011 Page 2 of 3 I. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Staff Response: Staff recognizes that unique situations exist throughout town and finds that providing some flexibility in the Code for the Planning and Zoning Commission to use its discretion to vary the percentage that an affordable housing unit is below grade is appropriate and in harmony with the purpose and intent of this Title. Affordable Housing GMQS Code Amendment Exhibit A April 25, 2011 Page 2 of 3 _ 13 RESOLUTION No. 05 (Series of 2011) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, ASPEN, COLORADO, DETERMINING THAT AMENDMENTS TO THE FOLLOWING CHAPTERS AND SECTIONS OF THE CITY OF ASPEN LAND USE CODE OF THE CITY OF ASPEN MUNICIPAL CODE MEET APPLICABLE STANDARDS OF REVIEW: 26.430.030 SPECIAL REVIEW — APPLICABILITY, 26.430.040 REVIEW STANDARDS FOR SPECIAL REVIEW, AND 26.470.070.4 GROWTH MANAGEMENT QUOTA SYSTEM - AFFORDABLE HOUSING. WHEREAS, in accordance with Sections 26.210 and 26.310 of the City of Aspen Land Use Code, the Director of the Community Development Department initiated amendments to the Land Use Code related to the review standards for Affordable Housing Growth Management Review; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Community Development Director and then by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Sections 26.430.030 Special Review Applicability, 26.430.040 Review standards for Special Review, 26.470.070.4 GMQS - Minor Planning and Zoning Commission applications for Affordable Housing, as described herein; and, WHEREAS, the amendments proposed herein are consistent with the Aspen Area Community Plan which states the following: "new affordable housing projects should reinforce and enhance a healthy social balance for our community and enhance the character and charm of Aspen; "consideration should be given to minimize the development footprint of all affordable housing projects without compromising the appropriate density or the livability of the project"; and "create an affordable housing environment that is appropriately scaled and distributed throughout existing and new neighborhoods..."; and, WHEREAS, during a duly noticed public hearing on February 15, 2011, continued to March 1, 2011, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Sections 26.430.030 Special Review Applicability, 26.430.040 Review standards for Special Review, 26.470.070.4 GMQS - Minor Planning and Zoning Commission applications for Affordable Housing, as described herein, by a five — one (5 — 1) vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310 and that the Planning & Zoning Commission Reso # 05 of 2011 GMQS — Affordable Housing Code Amendment Page 1 of 6 approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen Planning and Zoning Commission finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. WHEREAS, the amendments to the Land Use Code are delineated as follows: Text unaffected is black and in standard print and looks like this. Text being added to the code is blue with underline and looks like this. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION as follows: Section 1: Section 26.430.030 – Special Review Applicability shall be amended as follows: Sec. 26.430.030. Applicability. Special review shall apply to all development in the City designated for special review by the following chapters or sections of' this Title: • Dimensional requirements (Chapter 26.710 — Zone Districts) • Replacement of nonconforming structures (Chapter 26.312) • Reduction of open space requirements in CC Zone District (Subsection 26.575.03013) • Off - street parking requirements (Section 26.515.040) • Reductions in the dimensions of utility /trash service areas (Section 26.575.060) • Subdivision standards (Section 26.480.050) • Accessory Dwelling Unit Design Standards (Chapter 26.520) • Wireless telecommunications facilities and/or equipment (Section 26.575.130) • Affordable housing unit criteria regarding percentage of unit's net livable required above grade (Section 26.470.070.4.c) Section 2: Section 26.430.040 Review standards for special review shall be amended as follows: Sec. 26.430.040. Review standards for special review. No development subject to special review shall be permitted unless the Planning and Zoning Commission makes a determination that the proposed development complies with all standards and requirements set forth below. A. Dimensional requirements. Whenever the dimensional requirements of a proposed development are subject to special review, the development application shall only be approved if the following conditions are met. Planning & Zoning Commission Reso # 05 of 2011 GMQS – Affordable Housing Code Amendment Page 2 of 6 1. The mass, height, density, configuration, amount of open space, landscaping and setbacks of the proposed development are designed in a manner which is compatible with or enhances the character of surrounding land uses and is consistent with the purposes of the underlying zone district. 2. The applicant demonstrates that the proposed development will not have adverse impacts on surrounding uses or will mitigate those impacts, including but not limited to the effects of shading, excess traffic, availability of' parking in the neighborhood or blocking of a designated view plane. B. Replacement of nonconforming structures. Whenever a structure or portion thereof, which does not conform to the dimensional requirements of the zone district in which the property is located is proposed to be replaced after demolition, the following criteria shall be met: 1. The proposed development shall comply with the conditions of Subsection 26.430.040.A above; 2. There exist special characteristics unique to the property which differentiate the property from other properties 'located in the same zone district; 3. No dimensional variations are increased, and the replacement structure represents the minimum variance that will make possible the reasonable use of the property; and 4. Literal enforcement of the dimensional provisions of the zone district would cause unnecessary hardship upon the owner by prohibiting reasonable use of the property. C. Reduction of public amenity. Whenever a special review is conducted to determine whether a reduction of the public amenity requirement is to be granted, it shall be reviewed in accordance with the standards set forth at Section 26.575.030. 11 Off - street parking requirements. Whenever a special review is conducted to determine a change in the off - street parking requirements, it shall be considered in accordance with the standards set forth at Chapter 26.515. E. Utility /trash service area. Whenever a special review is conducted to determine a change in any utility /trash service area requirements, it shall be considered in accordance with the standards set forth at Section 26.575.060. F. Subdivision design standards. Whenever a special review is for development which does not meet the subdivision design standards of Section 26.480.050, the development shall be approved only when the conditions set forth at Section 26.480.050 have been met. Planning & Zoning Commission Reso # 05 of 2011 GMQS — Affordable Housing Code Amendment Page 3of6 G. Accessory dwelling unit design standards. Whenever a special review is conducted to determine a change in the design standards required for accessory dwelling units, it shall be considered in accordance with the standards set forth at Subsection 26.520.080.D. H. Wireless telecommunications facilities and/or equipment. Whenever a special review is conducted to appeal the decision of the Community Development Director regarding a proposed wireless telecommunications service facility or equipment or to determine a proposed increase in the allowed height of a wireless telecommunications facility and/or equipment, it shall be considered in accordance, with the standards set forth in Paragraph 26.575.130.C.6, Wireless telecommunication services facilities and equipment. (Ord. No. 44 -1999, §4; Ord. No. 5 -2000, §4; Ord. No. 1 -2002, §9; Ord. No. 52 -2003, §12; Ord. No. 12, 2007, § §20, 21) I. Affordable housing unit standards. Whenever a special review is conducted to reduce the required percentage that the finished floor level of the unit's net livable area is at or above natural or finished grade, whichever is higher, a recommendation from the Housing Board and all of the following criteria shall be met: 1. The proposed affordable housing units are designed in a manner which exceeds the expectations of the Aspen Pitkin County Housing Authority Guidelines, and promotes the unit's general livability by demonstrating compliance with as many of the following conditions as possible: a. Significant storage, such as additional storage outside the unit. b. Above average natural light, such as adding more window area than the Building Code requires. c. Net livable unit sizes exceed minimum requirement. d. Unit amenities, such as access to outdoor space or private patios. 2. The proposed affordable housing units are designed in a manner that meets the following criteria: a. Compatibility with the character of the neighborhood. b. Design is an appropriate response to unique site constraints, such as topography. Section 3: Section 26.470.070.4, Minor Planning and Zoning Commission applications — Affordable Housing shall be amended as follows: Sec. 26.470.070.Minor Planning and Zoning Commission applications. The following types of development shall be approved, approved with conditions or denied by the Planning and Zoning Commission, pursuant to Section 26.470.110, Procedures for review, and the criteria for each type of development described below. Except as noted, all growth management applications shall comply with the general requirements of Section 26.470.050. Except as noted, the following types of growth management approvals shall be deducted from the respective development ceiling levels Planning & Zoning Commission Reso # 05 of 2011 GMQS — Affordable Housing Code Amendment Page 4 of 6 but shall not be deducted from the annual development allotments. Approvals apply cumulatively. 4. Affordable housing. The development of affordable housing deed - restricted in accordance with the Aspen/Pitkin County Housing Authority Guidelines shall be approved, approved with conditions or denied by the Planning and Zoning Commission based on the following criteria: a. The proposed units comply with the Guidelines of the Aspen/Pitkin County Housing Authority. A recommendation from the Aspen/Pitkin County Housing Authority shall be required for this standard. The Aspen/Pitkin County Housing Authority may choose to hold a public hearing with the Board of Directors. b. Affordable housing required for mitigation purposes shall be in the form of actual newly built units or buy -down units. Off -site units shall be provided within the City limits. Units outside the City limits may be accepted as mitigation by the City Council, pursuant to Paragraph 26.470.090.2. If the mitigation requirement is less than one (1) full unit, a cash -in -lieu payment may be accepted by the Planning and Zoning Commission upon a recommendation from the Aspen/Pitkin County Housing Authority. If the mitigation requirement is one (1) or more units, a cash -in -lieu payment shall require City Council approval, pursuant to Paragraph 26.470.090.3. A Certificate of Affordable Housing Credit may be used to satisfy mitigation requirements by approval of the Community Development Department Director, pursuant to Section 26.540.080 Extinguishment of the Certificate. Required affordable housing may be provided through a mix of these methods. (Ord. No. 6 — 2010, §4) s c. Each unit provided shall be designed such that the finished floor level of fifty percent (50 %) or more of the unit's net livable area is at or above natural or finished grade, whichever is higher. This dimensional requirement may be varied through Special Review, pursuant to Section 26.430. d. The proposed units shall be deed - restricted as "for sale" units and transferred to qualified purchasers according to the Aspen/Pitkin County Housing Authority Guidelines. The owner may be entitled to select the first purchasers, subject to the aforementioned qualifications, with approval from the Aspen/Pitkin County Housing Authority. The deed restriction shall authorize the Aspen/Pitkin County Housing Authority or the City to own the unit and rent it to qualified renters as defined in the Affordable Housing Guidelines established by the Aspen/Pitkin County Housing Authority, as amended. The proposed units may be rental units, including but not limited to rental units owned by an employer or nonprofit organization, if a legal instrument in a form acceptable to the City Attorney ensures permanent affordability of the units. The City encourages affordable housing units required for lodge development to be Planning & Zoning Commission Reso # 05 of 2011 GMQS — Affordable Housing Code Amendment Page 5 of 6 rental units associated with the lodge operation and contributing to the long -term viability of the lodge. Units owned by the Aspen/Pitkin County Housing Authority, the City of Aspen, Pitkin County or other similar governmental or quasi - municipal agency shall not be subject to this mandatory "for sale" provision. e. Non - Mitigation Affordable Housing. Affordable housing units that are not required for mitigation, but meet the requirements of Section 26.470.070.4(a -d). The owner of such non - mitigation affordable housing is eligible to receive a Certificate of Affordable Housing Credit pursuant to Chapter 26.540. (Ord. No. 6 —2010, §4) FINALLY, adopted and approved this I day of March, 2011. _COntZtac Stan Gibbs, Chairman Attest: ckie, Lothian, City Clerk Approved as to form: amen R. ruT e, Special Counsel Planning & Zoning Commission Reso # 05 of 2011 GMQS — Affordable Housing Code Amendment Page 6 of 6 - � C • City Planning & Zoning Meeting — Minutes — March 01, 2011 DeF . , cia said staff said that some setback of the garage some distance. Phelan replied •rrect; not necessarily the full 10 feet but P &Z would n- + to create an appropriat:: mount. DeFrancia asked looking at this design .t would make the first story ac .table. Phelan replied if they didn't have !iv' g space above the entry; they wou ' meet the porch. Gibbs said what we presented with is a design '.t is clearly not what the code intended to produce; th= , rchitects need to read a code and end up with a design that does meet the code. h: bbs said making - garage go back is not going to be a productive exercise; what is .>e distance, depth, between the front door and the garage. Lindenau replied the e s is 1 eet wide by 6 feet deep. Gibbs said if you could get 6 feet you would sti flush with the front door, that doesn't accomplish anything. Gibbs sai s . a: e thinks that it is important and agrees with Cliff in this regard that there .. other ces where we have applied this code and we just looked at Aspen W. # and asked them to come back because he couldn't tell where the d . r was because it V • n't meet that same criterion; we were talking major de- gn but there were elem. q is of that entryway that could be improved. Gibbs d to put an eve to break up t mass would be a potential way of going about i MOTION: Bert Myrin moved to support the staff direc " •n to request that the applica of 131 Midland Ave return with changes in line the input from this meeti/ : and continue to March 8` seconded by Jim DeFranc All in favor, AP' 'OVED. PUBLIC HEARING: Code Amendment for Affordable Housing percentage of livable area above grade Stan Gibbs opened the continued Public Hearing on the Affordable Housing percentage of livable space above grade. Public notice was provided. Sara Adams said she was here to discuss proposed language for the growth management section of the code that deals with the development of affordable housing. Adams said projects that are required to develop affordable housing are reviewed by the Planning & Zoning Commission for Growth Management. They will discuss the criterion that 50% or more of the unit's net livable area is at or above finished grade; so that is the focus of the discussion. The Planning & Zoning Commission is asked to make a recommendation to City Council. 8 City Planning & Zoning Meeting — Minutes — March 01, 2011 Adams said that when Aspen Walk first came to P &Z for conceptual there were units 2 or 3 feet below grade and she did not bring it up for this particular project but remind you of the intent of this criterion; this 50% net livable area is above or at grade. Staff wanted to prevent sub -grade dungeons; putting all the affordable housing in the basement level. And staff was looking for a little more flexibility to varying that requirement; they have had a lot of discussions about the creative application of design and how partially sub -grade units could be livable so they are proposing language to allow through Special Review the Planning & Zoning Commission to vary the dimensional requirement that 50% of the net livable space has to be above grade. Adams said page 2 of her memo had a list of criteria for P &Z to apply to the specific application and all would be based on the housing board's recommendation. Part 1 looked at specific units which have to meet at least 2 of the standards a through e; and these standards are what the housing board already uses to vary the minimum unit size for each category; they don't want to sacrifice the livability of the unit and there can be creative project where this is appropriate. Part 2 was more of a macro -view and really steps back from the usual unit and looks at the neighborhood, the topography and do we think what is proposed is positively impacting the neighborhood and neighborhood character. Is it responding to the natural and built landscapes and the livability of the units. Aspen Walk applicants proposed language that staff is not providing in this memo (to change to a volumetric measurement); staff felt that Special Review by P &Z with a recommendation from the housing board seemed more appropriate. Adams said they wish to encourage creativity that results in design solutions that are fresh and innovative and contextually harmoniously with what already exists. Staff recommends P,&Z recommend approval to City Council. Cliff Weiss asked why this code amendment was going through GMQS and how will affect general land use code; what he was concerned about was a number of applications that were drilling their way into mountain sides and having 10,000 square foot houses buried into the sides of hills. Weiss asked if that was why this was going through GMQS. Adams replied the reason that is referred to Growth Management under the Growth Management umbrella. When a multi - family project is required to mitigate on site for affordable housing the project has to come before the Planning & Zoning Commission for approval for the development of affordable housing; we don't have any limit on the amount of affordable housing that is developed in any given year however there are specific criteria that a project is required to meet in the code. Jennifer Phelan said that no matter what 9 City Planning & Zoning Meeting — Minutes — March 01, 2011 you do it goes through Growth Management; an example would be when you develop a single family home on a new site that is an administrative growth management approval and it says there are certain forms of affordable housing mitigation that you can do; you can build an accessory dwelling unit on site; you can do a cash in lieu; there are a couple of options through the building permit process administratively. Erspamer said on page 2 "lb" to encourage more windows for light; are you discouraging windows on the north side of the building because of heat loss. Adams replied that was not what this was addressing. Adams said energy efficient units increase the livability of the units and decrease the cost and impacts on the environment. Erspamer asked how do you determine above average light. Adams answered adding more windows and get a referral based upon the building code. Weiss asked if someone wanted to put in a unit that was more than 50% underground but came in with more of the requirements like putting in more windows and storage does it still come back to P &Z. Adams replied yes, it was still up to the Planning & Zoning Commission to agree with that. Public Comments: 1. Patrick Berley with Stan Clauson said that the sub -grade at Aspen Walk Affordable was identical to the sub -grade as the Free - market units. 2. Tom McCabe, APCHA director, said that he was on City Council and fought hard for this change not to have dungeons for affordable housing. McCabe said that he was happy with what staff came up with. Commissioner Comments: Weiss said one key requirement was the car share and letter "e" and he wasn't willing to trade for the bunker therefore he wanted the developer to make this not look like a bunker. Erspamer said if free - market can live in these units why can't employees live in them. Weiss commented that we are dealing with something that will be applied to all employee housing units in the future; we are dealing with a general code amendment. Erspamer asked what kind of verbiage can we use to protect that street and that block. Weiss said this is germane to what developers can do to affordable housing that have some sub -grade component. Bert Myrin changed his mind about Section 1 and he did not like changing permanent below grade for temporary things like a dishwasher or a car so he 10 City Plannin¢ & Zonine Meetine — Minutes — March 01, 2011 suggested exceeding the net livable space. Myrin said above average light needed to be permanent. Adams said it is important to step away from the neighborhood to look at the site and what formula makes a livable unit for that specific site; it is a good idea to have specific criteria so people know what is expected of them but she said she worried about the unintended consequences. Weiss reiterated it has to not be a bunker and "b" and "d" were the only 2 guidelines. Gibbs said he understood where Cliff was coming from on the bunker issue but the real issue was livability; anything that increases the livability of the unit. Gibbs said that car share memberships are not part of that and do not have a relationship to livability. Gibbs said windows should say window area not number of windows. Gibbs said it should say unit amenities and the list of amenities should be focused on what would improve the livability of the unit. Gibbs said how do you get a balcony in that equation. Adams answered you can have a garden level terrace that are sometimes nice areas. Weiss asked if Stan included storage. Gibbs replied that storage was significant because getting stuff out of your unit will make it more livable otherwise you will get the syndrome that everybody puts stuff on their balcony and fill up half their unit with all their recreational equipment. Gibbs said that size does make a difference and if a developer is willing to put money into it; they are doing something to make the affordable housing more attractive. Gibbs said that a permanent feature should be required for mitigation. Erspamer said the storage was number 2 on the affordable housing survey; number 1 was quality construction. Weiss reiterated he was changing the dungeon with more flexibility. Adams said you could have the discussion at the time of the project coming before P &Z. Gibbs said what if we just said promotes general livability by including as many of the following aspects as possible. MOTION: LJErspamer moved to continue the meeting by 15 minutes; seconded by Bert Myrin. All in favor, APPROVED. Weiss said to roll in the parameters a bit if you make something dark give me something light; nothing else can be traded. Phelan stated there was a general standard that the applicant can meet or they can go through a special review; it is not a determined outcome; it is a permissive request that may be approved or not be approved. Adams said it was discretionary with the Special Review. Tom McCabe said that if you had a unit that was partially sub - grade, requiring the developer to think carefully about how he plans that unit; put the laundry room, 11 City Planning & Zoning Meeting— Minutes — March 01, 2011 some closets because you don't live in those spaces you visit those space from time to time; to make those spaces (the living room, the dining room and the kitchen as nice as you can) that you live in and put the utility stuff back in the closet. Weiss asked Tom where would he place them. McCabe said that was a lifestyle question and employees always come back with storage being important. Erspamer said he never intended to trade off light for storage. Gibbs asked if there was consensus on page 13 of the Resolution a, b, c, d, e on and Section 1 Affordable Housing. Phelan replied that on a, b, c, d and e keep the significant storage such as additional storage outside the unit, above natural Tight such as above window area then the building code requires, net livable units sizes exceed the minimal requirement and delete "e" energy efficient unit amenities and car share memberships. Adams stated that they wanted extra insulation in the units for livability with better construction standards. Gibbs stated that they can forward onto Council and say that Section "1 a" was not a consensus. Gibbs said to implement the following to the maximum. Weiss withdrew his objections because everything comes to P &Z discretion. MOTION: LJ Erspamer moved to recommend P &Z adopt Resolution #005 -11 to recommend City Council approve the proposed code amendment to 26.430.030, 26.430.040 and 26.470.070.4; seconded by Cliff Weiss. Roll call: Wampler, yes; Myrin, no; DeFrancia, yes; Weiss, yes; Erspamer, yes; Gibbs, yes. APPROVED 5 -1. Adjourned at 7:15 pm. r ckiehi,City Clerk 12 Ru ki po MEMORANDUM TO: Sara Adams, Community Development Department FROM: Cindy Christensen, Housing Department DATE: February 3, 2011 RE: APPROVAL OF AFFORDABLE HOUSING CODE AMENDMENT ISSUE: The subgrade units proposed in the AspenWalk development do not conform to the land use code. An affordable housing GMQS code amendment is being proposed to remedy the situation. BACKGROUND: Due to the terrain of the property and the proposal of the garage, some of the units being proposed in the development or subgrade and do not meet the City of Aspen Land Use Code conditions. The attached code amendment will remedy this nonconforming issue. RECOMMENDATION: The Housing Board reviewed the Code amendment at their regular meeting held February 2, 2011 and are recommending approval of the following changes: Under Section 26.430.030. Applicability, add a bullet point as follows: • Affordable housing unit criteria regarding percentage of unit's net livable required above grade (Section 26.470.70.4.c). Under Section 26.430.040, Section 2, paragraph I, Affordable housing unit standards, the following will be added: Whenever a special review is conducted to reduce the required percentage that the finished floor level of the unit's net livable area is at or above natural or finished grade, whichever is higher, a recommendation from the Housing Board and all of the following criteria shall be met: 1. The proposed affordable housing units are designed in a manner which exceeds the expectations of the Aspen/Pitkin County Housing Authority Guidelines, and promotes the unit's general livability by exceeding minimum requirements of two or more of the following conditions: a. Significant storage, such as additional storage outside the unit. b. Above average natural light, such as adding more windows than the Building Code requires. c. Net livable unit sizes exceed minimum requirement. Code Amendment Approval Page 1 d. Site amenities, such as access to outdoor space, private patios, or balconies, car share memberships. e. Energy efficient units, such as solar panels, energy star rated appliances, or insulation. 2. The proposed affordable housing units are designed in a manner that meets the following criteria: a. Compatibility with the character of the neighborhood. b. Design is an appropriate response to unique site constraints, such as topography. Code Amendment Approval Page 2 VII b.c MEMORANDUM TO: Mayor and City Council FROM: April Long, Stormwater Manager, Engineering Department THRU: Scott Miller, Capital Asset Director Trish Aragon, P.E., City Engineer DATE OF MEMO: April 18, 2011 MEETING DATE: April 25, 2011 RE: Stormwater Fee -In -Lieu of Detention REQUEST OF COUNCIL: Adoption of Ordinance , Attachment A, which repeals the existing stormwater system development fee and establishes a fee -in -lieu of detention; and adoption of Ordinance /10 , Attachment B, which modifies the Urban Runoff Management Plan to include changes to the detention standards that support a fee -in -lieu of detention approach. PREVIOUS COUNCIL ACTION: Council was last updated of this new fee approach on February 22, 2011. BACKGROUND: In May 2007, Council passed an ordinance that implemented a $2.88 fee to be charged to each square foot of a site's entire impervious area, at the time of development or redevelopment exceeding 500 square feet of impervious area. In the fall of 2009, Council directed staff to examine the equity of the fee as it applies to development and redevelopment, particularly how it applies to existing development at the time of additions to or redevelopment of any portion of the site, and to analyze other applications of the fee to improve equity. Council also directed staff to evaluate how changes to the amount and application of the fee would change revenues for the stormwater fund. The needs of the stormwater program were analyzed by staff, consultants, and Citizens' Review Committee (CRC) in 2006, resulting in a Stormwater Utility Business Plan and Supplement. This Plan was presented to Council and recommended program improvements and capital improvement projects totaling $31 million. The group also reviewed and recommended funding mechanisms to generate revenue for the improved stormwater program. In May 2007, Council approved a system development fee, estimated to generate $19 million over 15 years (or $1.27 million annually), to be assessed against development and redevelopment. In November 2007, voters approved a mil levy of 0.65 mills that would generate $12 million over 15 years (or $860,000 on average annually). Page I of 3 The approved mil rate of the tax is 0.65. However, due to recent high property valuations, Council has limited the mil to 0.527. The mil was applied to property tax bills beginning in 2008 and has generated approximately $860,000 annually. The stormwater system development fee (SDF) is defined and codified in the City of Aspen Municipal Code Chapter 25.18. A fee of $2.88 per square foot of total impervious area is assessed against all properties that develop or redevelop more than 500 square feet of impervious area. The purpose of the fee was to provide funding necessary to construct, maintain and improve the City's stormwater facilities. The fee has been assessed to development and redevelopment projects since November 2007. Revenues from the fee that have been collected from November 2007 to August 2010 equal approximately $1.8 million or $600,000 annually. Council has discussed the equity in applying the fee to existing and undisturbed impervious areas at the time of an addition to the property. For example, if an existing 1000 sq ft home (footprint) added a 500 sq ft impervious driveway, the system development fee assessed for the property would be $2.88 x 1500 sq ft = $4,320.00. The question of concern was the appropriateness of applying the fee to the existing impervious area (in the example above, the 1000 sq ft). In November 2010, staff presented several different fee applications that could resolve the equity problem of the system development fee while still meeting the stormwater management needs of the City. Council favored dropping the system development fee and adopting a new detention requirement that had the option of a voluntary fee -in -lieu of detention. Council directed staff to return with more details of the fee -in -lieu of detention approach (FIL). It should be noted that, while the FIL will be viewed as more equitable than our current system development fee approach, implementation of the FIL is not expected generate the revenue needed to implement the stormwater program as it was planned in 2006. It might be necessary to investigate replacement or supplementary forms of funding for the capital program in the future. DISCUSSION: Staff has developed a fee -in -lieu of detention program that allows development and redevelopment projects to either provide detention to historic rates or pay a fee, based on the cost of providing that detention, to the City's stormwater fund. More information about the development, basis, and application of fee are explained in Attachment C — Frequently Asked Questions and Attachment D — Fee -In -Lieu of Detention Analysis Report. A spreadsheet comparing the current system development fee to the option fee -in -lieu of detention for several example development and redevelopment projects has been included as Attachment E. FINANCIALBUDGET IMPACTS: Implementation of a FIL is expected to generate approximately $500,000 per year in revenue for the stormwater fund. In 2010, the current system development fee is generated approximately $512,000. In order to fully fund the stormwater program as intended in 2006, $1.2 million is needed annually in fees in addition to $860,000 in tax revenue. Page 2 of 3 ENVIRONMENTAL IMPACTS: If the stormwater program cannot fund capital projects planned to upgrade the capacity of the stormwater system, development and redevelopment projects will be required to detain stormwater runoff on their sites, releasing it at a rate that the current stormwater system can handle without flooding downstream properties. If the stormwater program cannot fund capital projects planned to improve the quality of runoff discharged into the Roaring Fork River sediment loads from the City will be about 2,480 tons per year. This is about 16.5 times the natural load of about 150 tons of sediment per year. At this rate the Roaring Fork River will likely remain categorized as "severely degraded" and will likely continue to experience changes in river bed, river flow, and river temperature; decreases in riparian habitat and species; and decreases in trout populations. RECOMMENDED ACTION: Staff recommends that Council adopt Ordinance 1 and Ordinance / 4' ALTERNATIVES: Council has the option to not adopt Ordinances and Ordinance PROPOSED MOTION: I motion to adopt Ordinance V'S` which repeals the existing stormwater system development fee and establishes the option for a fee -in -lieu of detention. I motion to adopt Ordinance / L, which modifies the Urban Runoff Management Plan to include changes to the detention standards that support a fee -in -lieu of detention approach. CITY MANAGER COMMENTS: Attachments: Attachment A — Ordinance I `j Attachment B — Ordinance It, Attachment C — FIL Frequently Asked Questions Attachment D — FIL Detention Analysis Report Attachment E — Cost Comparison Page 3 of 3 ORDINANCE NO. I /— (Series of 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE MUNICIPAL CODE OF THE CITY OF ASPEN FOR THE DELETION OF THE STORMWATER SYSTEM DEVELOPMENT FEE AND ADDITION OF A STORMWATER FEE -IN -LIEU OF DETENTION WHEREAS the City's Surface Drainage Master Plan identifies deficiencies in the condition and capacity of its existing drainage system, and WHEREAS it is in the City's interest to protect its infrastructure, the environment, and the ecology of the Roaring Fork River from the effects of stormwater runoff, and WHEREAS a combination of enhanced stormwater detention standards and implementation of a voluntary fee -in -lieu of the improved detention requirement will both reduce flooding and generate funds for improving the City's drainage system related to development and redevelopment of property within the boundaries of the City of Aspen. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO; Section 1. That Chapter 25.18 of Title 25 of the Municipal Code of the City of Aspen is hereby repealed in its entirety. Section 2. That a new Section 2.12.140 of the Municipal Code of the City of Aspen, Colorado, is hereby added to read as follows: Sec. 2.12.140. Stormwater fees. This Section of the Code sets forth certain fees related to stormwater management as follows: Fee -in -Lieu of Detention: Fee = $70.00 per cubic foot of detention required (a) The fee is based on 100 percent of the estimated cost of constructing a detention facility on -site. The City Engineer at his/her sole discretion may require a certified cost estimate for construction of detention meeting the standards contained in the Urban Runoff Management Plan (Manual) established in Sec 28.02.010 and may accept at his/her sole discretion this amount to be paid in- lieu -of detention. (b) Required detention storage shall be calculated at the rate of 6.20 cubic feet per 100 square feet of impervious area. The City Engineer at his/her sole discretion may require a certified storage volume estimate for construction of detention meeting the standards contained in the Urban Runoff Management Plan (Manual) established in Sec Ailaciity,a4 4 28.02.010 and may accept at his/her sole discretion this amount to be used for detention volume storage requirements. Section 3. That the following new Chapter 28.03 of Title 28 of the Municipal Code of the City of Aspen, Colorado, is hereby adopted: Chapter 28.03 Stormwater Fees Sec. 28.03.010. Definitions. For the purposes of this Chapter, certain words or phrases are defined as follows: (a) Development. The proposed development creates at least one - thousand (1000) square feet of new impervious area. (b) Redevelopment. The proposed development disturbs at least one - thousand (1000) square feet of the existing impervious area. Sec. 28.03.020. Fee -in -Lieu of Detention. (a) A stormwater fee -in -lieu of detention shall be established which shall be applied and available as an alternative to the construction of on -site detention as required by Sec. 28.02.010 to all properties within the boundaries of the City of Aspen at the time of development or redevelopment of the property. The basis of this fee is set forth in Section 2.12.140. (b) A developer will not have the option to pay a fee -in -lieu of constructing a stormwater detention facility if, in the opinion of the City Engineer, undetained runoff from the development may materially adversely exacerbate an existing problem or may adversely impact a downstream property. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the day of 2011. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this day of 2011. Michael C. Ireland, Mayor ATTEST: APPROVED AS TO FORM: Kathryn Koch, City Clerk John Worcester, City Attorney ORDINANCE NO. 1(0 (Series of 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE URBAN RUNOFF MANAGEMENT PLAN WHEREAS the City's Surface Drainage Master Plan identifies deficiencies in the condition and capacity of its existing drainage system, and WHEREAS it is in the City's interest to protect its infrastructure, the environment, and the ecology of the Roaring Fork River from the effects of stormwater runoff, and WHEREAS the city of Aspen has adopted the Urban Runoff Management Plan (Manual) under Chapter 28.02 Title 28 of the Aspen Municipal Code which states, in part, that the aforementioned Manual may be amended from time to time by the City Engineer and/or City Council, and WHEREAS amendment of the Manual to change and enhance the stormwater detention standards will increase the requirements upon certain properties for the detention of rainfall runoff, and WHEREAS a combination of enhanced stormwater detention standards and implementation of a voluntary fee -in -lieu of the improved detention requirement will both reduce flooding and generate funds for improving the City's existing drainage system related to development and redevelopment of property within the boundaries of the City of Aspen. WHEREAS the amendments to the Manual are delineated as follows: • Text being removed is delineated with strikethrough. Text being removed look,' like this. • Text being added is bold and underline. Text being added looks like this. • Text which is not mentioned in this Ordinance is not affected; and NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO; Section 1. That Chapter 1 of Urban Runoff Management Plan of the City of Aspen is hereby amended as follows: Table 1.1 General Requirements for Minor and Major Projects Impervious area added OR Project Case - General Requirements disturbed Classification 1 < 200 square feet No tifffiteh a 200 - 1000 square feet ** Water quality improvements for the 2 Drains to Green Minor (green) disturbed /added area Infrastructure Does not require a Professional Engineer 3 200 — 1000 s feet WQCV for the disturbed or added area Drains To Hard Infrastructure Minor (urban) Does not require a Professional Engineer WQCV for the disturbed or added area > 1000 square feet and Detention to the pre dcv2,eiaea historic 4 < -50 % of site Major undeveloped rate or FIL for the entire site < 25% of the site disturbed or added area Requires Professional Engineer > 1000 square feet. and WQCV for the entire site S0 % of site Detention to the pre de clopmc ^t 5 > 25% of the site or Major historic undeveloped rate or FIL for the > 50% of existing structure or entire site more Requires Professional Engineer Section 2. That Chapter 5 of Urban Runoff Management Plan of the City of Aspen is hereby amended as follows: The City of Aspen's stormwater management goal is to mimic Aspen's natural hydrology to the maximum extent practicable. By requiring treatment of the water quality capture volume, discussed in Chapter 8— Water Quality, it, in effect, provides infiltration or detention for many very small events (on the order of a 6 -month to 1 -yr event), approximately 80% of the storms in Aspen. For the remaining 20% of storms, the larger events, a small portion of the runoff will be detained in the water quality treatment areas. The remaining runoff must be conveyed to the river safely and in a manner that doesn't increase the flooding potential of downstream properties. • . • _ • - _ . - _ • - conditions. Given these observations, the City's detention policy is as follows, by area: 1. Commercial Core /Downtown and Sub -urban Areas Draining to the Sewer System These drainage areas are highly impervious and are served by the City of Aspen stormwater infrastructure. In general, the minor, 10 -year, event in this area is handled by storm sewers and the major, 100 -year, event is accommodated by a combination of storm sewers and street flow. Currently, there are portions of the commercial core where storm sewer capacity is less than the 10 -year event and areas where the storm sewer plus streets do not have adequate capacity for the 100 -year event; • : - - - : • • - •• ' - ' , - - _ - to 10 year capacity. Detention(above the WQCV)) to the historic peak flow rates for the 10- and 100 -year events is Fiat-required for development or redevelopment activities that de-not y or events is required disturb or add more than 1,000 square feet of impervious area. If the disturbed or added impervious area is less than 25% of the total impervious area on the site then only the new area must be so treated. If the disturbed or added impervious area is more than 25% of the total developed area on the site then the site shall be treated as a new development and the total site shall meet detention requirements to the historic peak flow rates. A proiect has the option to pav a fee -in -lieu of providing the required detention (see Ordinance 2.12.140 of the Municipal Code). detention to thc pre development pc'ak flow rates for thc 10 and 100 ycor events is required. 3. Sub -urban Areas not Served by Public Storm Sewer - - - - , - - - •• - - -, Detention (above the WQCV) to the historic peak flow rates for the 5- and 100 -year events is required for new development and redevelopment. : - - •• : - • - • •.. - ' - • - ' '• p ak flow rates to historic conditions rates for thc entire 5,000 square feet of impervious arca. activities that disturb or add more than 1.000 square feet of impervious area. If the disturbed or added impervious area is Tess than 25% of the total impervious area on the site then only the new area must be so treated. If the disturbed or added impervious area is more than 25% of the total developed area on the site then the site shall be treated as a new development and the total site shall meet detention requirements to the historic peak flow rates. A project has the option to pav a fee -in -lieu of providing the required detention (see Ordinance 2.12.140 of the Municipal Code). INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the day of 2011. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this day of 2011. Michael C. Ireland, Mayor ATTEST: APPROVED AS TO FORM: 1 Kathryn Koch, City Clerk John Worcester, City Attorney A -1 --- it,d1h 4 c/f/q- t Frequently Asked Questions: Aspen's Stormwater Fee -In -Lieu What is the problem we are solving? Aspen's stormwater infrastructure is aging and significantly undersized. Many of the downtown pipe systems cannot carry even a moderate storm's runoff. Therefore, during most intense rain events, water runs dangerously in streets which can cause damage to buildings and threaten the safety of the public. Additionally, the Roaring Fork River is impacted by these damaging flows. Stormwater runoff from urban areas increases pollutant load, causes erosion, damages stream habitat and increases flooding risks along the river. How are we solving the problem? Aspen is addressing the problem in two ways. First, a capital 91F. construction plan has been developed and is being updated. :, ' , The capital plan estimates that over $15 million must be spent ; on repairing or enlarging pipes and drains, and in protecting �z"� the Roaring Fork from the pollution that stormwater runoff carries. Second, Aspen has upgraded its design requirements for new development and redevelopment from one of allowing . developments to increase flooding and pollution downstream to a more modern standard of reducing those flows to something that more closely mimics the natural flow and reduces the impact of development. What are the particulars of the new standard? Impervious area increases the volume and timing of stormwater runoff (i.e. rain runs off of hard surfaces harder and faster than it runs off of grassy fields). The new standard requires development and redevelopment to manage and control stormwater so that it leaves the site at the same rate it would leave the site if it were covered with grasses. This management of stormwater is typically referred to as detention — capturing runoff, holding it for some period of time, and then releasing it at a controlled rate. The goal is to mimic nature and trick the river into thinking Aspen is a natural area rather than an urban area. _ ,, ,ti 71 r7 I . What projects will this new standard apply to `,R :: , ,` > - - , e i The new standard will be applied to all new developments and ' '. / redevelopments that add or disturb and replace 1,000 square -;.._ _;,, I 1 -I : ,,, / feet of impervious area or more. If the disturbed or added .. '` � ' 1 impervious area is less than 25% of the total area of the site, + .,. . t , then only the new area must be so treated. If the disturbed or �--„, added impervious area is more than 25% of the total area of the site, then the site shall be treated as a new development and the total site shall meet the new detention requirements. This 25% trigger is based on studies that show that once an area is 25% developed, the receiving stream becomes significantly impaired. If the site disturbs more than 1000 square feet and more than 50% of the structure, then the itOri-- — ' entire site will be treated as a new development and the total site shall meet the new detention requirements. What if a site cannot meet these standards? Is there an alternative? The City recognizes that this requirement may be difficult or costly to meet on any particular site. So the City has provided the option of payment of a voluntary fee -in -lieu of detention. The amount of the fee is based of an estimate of the cost of providing detention in Aspen. However, if a developer can show that their own cost of detention is less than the City estimate, the City has the option of accepting this lesser amount or asking tre developer to go ahead and build detention on -site. ill_ Tnr: Crri or ASPEN 1 How much is the fee and how was the fee calculated? The Urban Runoff Management Plan approach for detention sizing was used to determine storage requirements for a range of typical site sizes in Aspen. The average calculation showed that the volume of detention needed is approximately 6.20 cubic feet of rainwater runoff per 100 square feet of impervious area for the maximum design storm. The City requested cost estimates from local design engineers and contractors which determined that it costs approximately $70.00 per cubic foot of detention in Aspen. The fee -in -lieu then works out to be $434 per 100 square feet of impervious area added or redeveloped. For a 6000 square foot lot- line -to -lot- ` > .,t '` line development, approximately 372 cubic feet of detention is required OR the site can pay a $26,040 fee -in -lieu of •,r ^ detention to the City. • Do I still have to pay the Stormwater System Development Fee? No. The stormwater system development fee will no longer k nt- be collected by the City. There is no mandatory stormwater 1 ,y - fee now, only the optional fee -in -lieu of detention that will only be paid in cases where the project does not want to provide detention on -site. How will the revenue from the Fee -In -Lieu be used by the City? The fees collected through the fee -in -lieu program will be used to improve conveyance and detention throughout the City and reduce the impacts of urban runoff on the river. The concept behind the optional fee is that detention must be provided somehow, someway. Sites can provide the required detention themselves, or the City can improve conveyance and detention downstream so that individual sites don't have to worry about it. In most cases regional (City - provided) detention is ideal, because the City can maintain it and it provides economies of scale. However, in Aspen, where land value is expensive and the funding is short, the City is not able to provide all of the detention needed to support the urban landscape. Therefore, some detention will be handled site by site and some will be handled regionally. Will my project still be required to detain the water quality capture volume? Yes. The quality of stormwater is improved every time it is treated. Therefore, the City is working toward a "treatment train" approach. This is similar to primary, secondary, and tertiary treatment at wastewater treatment plants. Each development and redevelopment in Aspen is required to provide primary treatment. The City's Clean River Initiative builds regional water quality treatment facilities that function as secondary treatment facilities. So, yes, each project will still be required to detain and treat the water quality capture volume calculated for the site. The calculation of the fee took into account that some detention would be provided in the treatment of the water quality capture volume. Are there any exceptions? Can I apply for a variance? Yes. Some lots in town are part of a larger development, such as Burlingame, and the detention for the entire development was provided in the master plan and has already been built. Additionally any development can apply for a variance by following the variance procedures outlined in the Urban Runoff Management Plan. I can think of a lot more questions — are there answers? This voluntary fee is a new idea developed to assist developers in meeting detention requirements. There will be many site specific questions, and answers will be developed, vetted, and placed in a policy document. Every attempt will be made to provide fair and impartial policies. However, in the end, developments must meet applicable modern standards in all aspects of development: electrical, plumbing, concrete mix... and stormwater runoff. These standards are there to protect all City residents and visitors, and to promote safety and preserve and enhance the quality of the City that makes Aspen an attractive place to live and recreate. 2 1 pat/Imo/14- t , , .: , - t e'` ~ Fee -in -Lieu of Detention Analysis Report Overview The purpose of this memorandum is to lay out background and application of a Fee - in -Lieu of Detention (FIL) approach for the City of Aspen, CO. AMEC was asked to look into the feasibility and advisability of instituting such a fee. During the course of �• the study AMEC solicited the input of prominent Colorado water attorney Ed Krisor. Previously AMEC had looked at four other approaches for the generation of revenue to support a planned capital improvement program to increase the conveyance of downtown pipe systems, and the protection of streams from runoff pollution. These other approaches were rejected for various reasons and focus turned to a FIL approach. The four are summarized below. Current Dedicated Tax The dedicated property tax approach was discussed and the following 11 decisions or points of information developed ✓ The approved mil rate maximum is 0.65. The currently applied mil rate is 0.527. The intent is to keep the revenue constant by changing the applied mil rate to reflect changing property valuations. ✓ There is no desire to increase taxes at this time. ✓ This tax was initially targeted to help support both capital improvements and operations. Over time due to it's stability, it will shift to support only operations which are best matched to a stable revenue source. System Development Fee (SDF) The system development fee approach has been used in Aspen to support capital needs. However several concerns have been expressed about the fee. The following summary points describe its makeup and current concerns: • The purpose of the existing System Development Fee was to fund the CIP portions of the Aspen program of an estimated $19.2M over 15 years, or $1,279,533/year. The current impervious area of the City was estimated to be 11,100,000 sq ft based on sampling and extrapolation. It was then assumed that parcels containing an average of four percent of this impervious area would develop /redevelop per year based on historic rates of 3% to 5% per year. Then: $1,279,533/(4% x 11,100,000 sq ft) = $2.88 /sq ft ✓ The SDF has faced perception of equity issues in that it charges parcels for their total impervious area rather than only the additional amount in the redevelopment at a very low trigger point. This approach is unusual among SDF type fees and could face a challenge, though Aspens home i M rule charter may give it flexibility not afforded other municipal entities in Colorado. . ✓ In discussions with AMEC staff after the meeting the suggestion was made that a higher trigger point could be used with the SDF. ✓ However, the drawback for the SDF is that the capital plan is a moving }° target, and some of the construction for one sub -basin (e.g. Jenny Adair Page 1 of 10 • • • . . . ,„ a e treatment Area) has already taken place and was funded from general revenues rather than from SDF fees. Stormwater User Fee Many Colorado communities charge a stormwater user fee based on the existing impervious area on a parcel. This has the advantage of generating revenue from all parcels that use the current drainage system and is well tested in the courts. However, there was little interest in pursuing another generally applicable fee at this time, and the discussion was not further pursued. Special Improvement District Within Colorado there is special authority to establish a district for the purpose of funding local improvements called Special Improvement Districts (SIDs) in municipalities and Local Improvement Districts (LIDS) in counties. These districts exist only as geographic areas within which improvements are constructed and as administrative subdivisions of the county or municipality. Having no board of directors, they do not operate in any capacity as an independent governmental entity. The Aspen city council would make all ' decisions on behalf of this administrative entity. Both assessment entity types may have their boundaries overlap the land of other jurisdictions with approval from those jurisdictions. The SID is formed to assess the costs of public improvements to those who are specially "benefited" by the improvements. "Benefit" includes, but is not limited to, any increase in property value, alleviations of health and sanitation hazards, adaptability of the property to a superior or more profitable use, etc. The costs are payable from assessments. Costs are assessed on an equitable and rational basis of determining benefit (e.g., impervious area or gross area). The benefit must be at least equal to the cost imposed. Assessments can be paid in one full payment or in installment payments over a specified period of time, for example, ten years. Assessment payments are not deductible from individual income taxes. 9 Similar to the Stormwater User Fee there was little interest at this time in the concept and further investigation was suspended. 411111 New Detention Standard The Need to Change Detention Criteria Aspen is facing significant flooding problems in its downtown core area. Many of the downtown pipe systems cannot carry even a moderate storm's runoff, meaning water ;; runs in streets during intense rain events causing damage to buildings and potentially threatening safety. AtAto Aspen is addressing the problem in two ways — keeping water from the overwhelmed system and improving the system. A stormwater master plan was developed in 2001 e , that analyzed the capacity of the City's system as well as the costs for upgrading the system to several different levels of service. Council at that time decided to develop -- Page 2of10 1 d C plan for improvements that would upgrade the stormwater pipe system capital p p pg stem in P p Y town to handle the 10 year event. Larger events would be passes through City streets. At that time it was estimated that over $15 million must be spent on enlarging, repairing, replacing, and constructing pipes and drains, and in protecting the Roaring Fork from the pollution that this runoff carries. This plan will increase the ability of the drainage system to convey flood waters safely. The cost estimate will change in light of new studies and information and inflation's effects on cost estimates. Secondly, Aspen is upgrading its design requirements for new development and ,. redevelopment from one of allowing developments to send more water than historic levels of flooding downstream (i.e. continue flooding downstream) to a more modern ' standard of keeping floodwaters from increasing over historic levels. That is, reduction of flood levels the system has to carry. These new design requirements, although typical of industry standards and reflective of a "no adverse impact" approach to flood control, will impose more stringent demands on properties that develop or redevelop in downtown Aspen. To accommodate those properties for which the new standard may impose prohibitive design and feasibility hurdles the City will institute a voluntary fee -in -lieu of detention option wherein a developer or redeveloper may avoid building detention and pay a typical or customized detention cost fee which can then be sued to make downstream improvements intended to accommodate the increased runoff from the site instead. In the end, the City must balance the need to address this flooding, to which all b:o-< . upstream and urban core properties contribute, and which specifically benefits downstream properties and to properly recognize and apportion the costs of so doing. Drainage design standards are part of a set of development standards that new developments or redevelopments must meet. These include fire codes, electric codes, parking lot design standards, etc. Each of these codes has been upgraded from time to time in recognition of the inadequacies of the old standard. Building or rebuilding to an inferior or outdated code or standard known to cause or exacerbate damages to others or to perpetuate a safety hazard is neither in the City of Aspen s nor it its citizens' and visitors' best interests. New Detention Standard Particulars The revised detention standard targets reducing peak flow discharges throughout Aspen to historic levels. It should be noted that this "new" standard is the current requirement in all parts of Aspen that require detention and do not drain to the downtown piped drainage system. The new standard will require that rainfall runoff peak flows are reduced to the a -: equivalent of an undeveloped condition (that is, the natural background runoff rate) w for all new developments and redevelopments that add or disturb and replace 1,000 square feet of impervious area or more (the equivalent of a 15' wide driveway 67' u;.'''-, or a 30' by 30' pad). If the disturbed or added impervious area is less than 25% of the total parcel area then only the new area must be so treated. If the disturbed or added impervious area : is equal to or more than 25% of the total parcel area then the site shall be treated as a new development and the total site shall meet detention requirements to the historic peak flow rates. The 25% trigger point was chosen based on extensive ' Page 3of10 I ,, , , amec national data demonstrating that this total site imperviousness serves as a y "threshold" beyond which development permanently impacts streams. If an existing structure is remodeled or altered in such a way that more than 50% of • the structure is considered "new" then the entire structure must be brought "up to code ", and this includes current stormwater regulations. Fee -In -Lieu (FIL) of Detention hookt,,,,, FIL Overview An in -lieu of construction fee allows developers to participate in the cost of regional stormwater facilities rather than requiring that each development include on -site stormwater detention systems. FIL Specifics The FIL was divided for consideration into two different components: peak flow control to solve flooding and erosion problems, and water quality control to help clean the Roaring Fork River. They are to be handled differently. Details on development of fee and storage amounts are contained in Appendix A. ✓ Peak flow control is an option for a property. They can either provide detention on -site or pay a fee to the City equal to the estimated per unit cost times estimated storage. ✓ Water quality control is a requirement of each property and takes place in two stages (similar to a wastewater pre- treatment program). Every site must provide water quality control on site and the City of Aspen stormwater program plans to construct regional treatment facilities throughout the City. ,: The table below shows this policy. Case Impervious area added Project OR disturbed Classification General Requirements 1 < 200 square feet No requirements 200 1000 square feet Water quality improvements for the • 2 Drains to Green Minor (green) disturbed /added area Infrastructure Does not require a Professional Engineer 200 — 1000 square feet WQCV for the disturbed or added area 3 Drains To Hard Minor (urban) Does not require a Professional Infrastructure Engineer WQCV for the disturbed or added area > 1000 square feet and Detention to the historic undeveloped 4 < 25% of the site Major rate or FIL for the disturbed or added >.. area Requires Professional Engineer > 1000 square feet and WQCV for the entire site o Detention to the historic undeveloped 5 > 25% of the site or Major P >50% of existing structure rate or FIL for the entire site Requires Professional Engineer " ' Page 4of10 The Peak Flow requirements and discussion are summarized below n . , ✓ For peak flow control individual sites that disturb or develop more than 1,000 square feet in aggregate will be given the option to put in on -site detention or to pay a fee. ✓ The Aspen design manual approach for detention pond design was used to size detention ponds and determine storage requirements for a range of site sizes. Based on an analysis of the historical development project parcel size a representative sized parcel was chosen. The calculation shows that the volume of needed detention storage is 7.35± cubic feet of rainwater per 100 square feet of impervious area for the maximum design storm. ✓ Cost estimates suggested by design engineers and verified by City staff assigned a cost of $70.00 per cubic foot of required storage. ✓ The fee then is calculated to be 7.35 * $70 = $515 per 100 square feet of impervious area added or redeveloped. ✓ If a developer can show that their own cost of detention is less than the City estimate, the City has the option of accepting this lesser amount or asking the developer to go ahead and build detention on -site based on the needs of the downstream drainage system. The Water Quality requirements and discussion are summarized below: ✓ Each site must provide water quality controls based on the guidance in the City of Aspen design criteria manual as shown in the modified table above. ✓ In addition the City of Aspen will undertake projects to protect the Roaring Fork at a higher standard than is considered achievable on -site. ro Page 5 of 10 Appendix A - Technical Background on Fee-in-Lieu g ee ><n -Lieu Calculation Applicable Design Criteria The Aspen Urban Runoff Management Plan provides the necessary technical and policy background to construct a FIL framework. Table 1.1 provides the basis for application of the FIL and is shown below. Table Al. Table 1.1 From the Aspen Urban Runoff Management Plan Table 1.1 General Requirements for Minor and Major Projects Impervious area added OR P-oject General Requirements disturbed Classification • X200 square feet No requirements 200 1000 square feet " Water quality improvements for the dcturbedladded area Drains to green infrastructure Minor (green) Does not require Professional Engineer 200 — 1000 square feet '" WQCV for the disturbed or added area Drains to hard infrastructure Minor (urban) Does not require Professional Engineer > 1000 square feet and WOCV for the disturbed or added area, <50% of she Major nP.tentlnn in the pre - dPv I(pmenf rate for flip. entire site Requires Professional Engineer 50°.5 of site, or 50% of existing WOCV for entire site, structure, or more Major Detention to the pre - development rate for the entire site Requires Professional Engineer Exception: Minor projects located In Environmentally Sensitive Areas. geologic hazard areas. or In Jjrisdictiona or non - judsdictional lloodpiains may to required lo do a more detailed drainae analysis and desigr. `- The de minims threshold for minor prefects applies only :o a single additior on a given niece of property If cuaulative additions 01 a property over tine increase the inpervioas area by core than 1000 square feel, "major project requirements and evaluations veil apply to all impervious areas that are in addition to the ". aseline` imperviousness deternlned from the 2008 aerial phobgraphy It states that all developments that disturb more than 1,000 SF of impervious area in redevelopment or development are considered major projects and must provide up to 100 -year stormwater detention for the total site and water quality control volume for the disturbed area. Sites that disturb between 200 and 1,000 SF of impervious area are considered minor projects and only have to provide water quality control volume facilities. The water quality control volume (WQCV) for a 100% impervious site is 0.26 inches of depth over the impervious area. This volume is considered to be part of the detention volume should detention be required and thus either one or the other would be counted. The estimation of detention volume follows the approach described in chapter 5, Section 5.6 of the Plan: Initial Design Detention Volumes. This approach uses the Rational Volume Method to estimate inflow volume, outflow volume, and the required storage volume. It is considered appropriate for small highly developed sites. The allowable pre - development release rate discharge is the 100 -year pre - development discharge peak flow. ° n Page 6 of 10 Alb Alb " Fee Estimation Protocol The following assumptions have been made in application of this method: Table A2. Protocol Assumptions Parameter Parameter Value Predevelopment (0% imperviousness) 0.35 Discharge Coefficient — B Soil (Figure 3.2 *) 100 -yr Post Development (100% imperviousness) 0.96 Discharge Coefficient - B Soil (Figure 3.2) 100 -yr Predevelopment (0% imperviousness) 0.15 Discharge Coefficient — B Soil (Figure 3.2) 10 -yr Post Development (60% imperviousness) 0.46 Discharge Coefficient - B Soil (Figure 3.2) 10 -yr Rainfall Equation P1 in/hr — Equation 2 -1, 100 -year 1.69 storm Sinuosity of channel flow on site 1.1 Pre- development maximum overland flow length — ft 300 Post development maximum overland flow length 25 100% impervious — ft Site slope feet per ft 0.005 *Referenced figures a located in the Urban Runoff Management Plan One important aspect of this approach is that the intensity of discharge per unit of area varies considerable from small sites to larger sites. Larger sites are more efficient in delivering discharge to the outlet. Using these assumptions, a spreadsheet was developed to calculate a general rule for detention volume required. The input for this spreadsheet is explained below. A screenshot of the spreadsheet is shown in Table A3. Column Explanation 1 Impervious area acres /square feet 2 Pre - development flow length sheet and channel (300 foot maximum) 3 Post - development flow length sheet and channel (25 foot • maximum sheet flow) a�. Pre- and Post - development times of concentration (min) based 4 on equation 3-4 and 3 -5 and associated rainfall rates (in /hr) • 5 Duration of rainfall (trial and error) to maximize volume Zti:, 4 6 Rainfall rate (in /hr) based on equation 5 -1 7 Inflow volume (cf) based on equation 5 -2 Water Quality Control Volume (WQCV) based on 0.26 inches — 8 assumed it is contained within the detention pond where both are required and is subtracted from the detention volume Page 7of10 ..• an)e - .:: 9 Detention release rate equal to pre - development peak runoff flow rate (cfs) using the Rational Method i 10 Outflow volume (cf) based on equation 5 -3 £ Required total storage volume = inflow volume - outflow volume 11 (cf) 12 Storage volume per acre of impervious area (storage intensity) 01 11 1 11006,_ 13 Detention volume above the WQCV = Storage volume - WQCV 14 Storage volume per acre above WQCV (storage intensity) (cf /acre) Table A3 shows the calculations for various sized parcels. While a variable rate was considered, in the end it was felt it was too complex given the level of unknowns in detention cost and that use of a representative size would suffice. An analysis of 63 development sites showed a 1.85 acre average size and a 0.36 median size. After removing the anomalies, those sites over 1.5 acres in size, an analysis of 55 sites showed a 0.35 acres average size and a median of 0.26 acre median size. The median impervious area was 6200 square feet. This is the highlighted row in Table A3 " '" and shows a required storage volume of 2697 cf per acre. A value for ease in calculation. The green blocks in the t ble show the a tual callcu ated chosen detention volume for the square footage shown in column one (note that the very last column shows the volume required per acre after the WQCV is accounted for). Table A3. Fee Development Calculations pre -dev flow time of conc (min) duration at length post-dev flow length rain at Td inflow r wired ABOVE rain (in /hr) max Vd p l WQCV release rate outflow wl storage vol A= Oland Chanl Oland Chanl Tcpre Tcpost Td I WQCV A acres/SF a ft ft Vi Qa Vo Vd Vol /AC ft min min min in/hr cf cf cfs cf 0.02 32 0 25 ' 7 12.1 5.0 45 ' 2.08 125 22 0.03 51 73 3189 V WQC 2 Vol/AC 2246 1000 4.26 5.79 011 71 0 25 46 18.1 5 55 1.82 667 108 0.14 255 412 3592 304 2648 5000 352 579 I 0.14 79 0 25 54 19.1 5 . 0 60 1.72 851 134 0.17 6200 343 5.79 333 518 3641 384 2697 0 23 100 0 25 75 21.6 5.0 60 1.72 1373 217 0 26 504 869 3784 10000 3 5.79 652 2840 0.26 106 0 25 81 22.2 5.0 60 1 72 1548 244 0 29 559 989 3820 745 2876 11280 3. 5.79 0.5 148 0 25 123 26 2 5.0 65 1 63 3067 472 0 51 1061 2006 4012 1534 3069 21780 2.89 5.79 1 209 21 25 205 31 9 5.0 75 1.47 6413 944 0 90 2163 4250 4250 3306 3306 43560 2.57 5.79 2 300 -25 25 300 38.2 57 80 1.41 13078 1888 1.61 4146 8931 4466 7044 3522 87120 2.30 5 58 10 300 426 25 701 51.7 104 98 1.22 69369 9438 6.64 21583 47787 4779 38349 3835 435600 1.90 4.54 25 300 848 25 1123 65.9 15.4 117 1 07 182195 23595 14 C9 559 1089000 1.61 3.82 48 126247 5050 102652 4106 w 1 Paae 8 of 111 1 '- • inec 25% Trigger Point The trigger point requirements and discussion are summarized below: It is permissible to charge a site for the total imperviousness on the site but with a trigger point. The following discussion describes the logic behind the trigger points for the FIL determination: • All redevelopment within Aspen must use the currently applicable codes. This is true for electric, plumbing, fire codes, water supply, wastewater, etc. This is also true for stormwater. ✓ These codes generally have a trigger point for partial redevelopment wherein the whole of the development must be brought up to current codes as if the development were starting from scratch. ✓ A large number of studies have all indicated that there is a strong positive correlation between the intensity of impervious cover within a watershed and the degree of impact of the stream. These studies have covered nearly every conceivable measure of negative stream impact including: stream stability, fish, benthic macro invertebrates, habitat, and chemical water quality. Sensillve Impacted Non-Supporting Lt an Drailage 1 Excel ent � \, 11 4 +�1 + �\ 1 1 IN •� Good — + : ,\ Fair - L 1 \� \$ 11 Poor — v 1 + A + +'\ + :\\\i 'I + 1 \ + 5 %, 1C'% 23% 25% 4C% 60% ;3% 10C% Watershed Impervious Cover ✓ The figure below shows a summary diagram based on an aggregate of the findings. From this figure it can be seen that a generally accepted threshold for impervious area beyond which streams are generally non - supporting of their designated function is 25% total site imperviousness.' Figure Al The Impervious Cover Model It was decided to use disturbance of 25% of the total site area as the trigger point for x application of the detention and water quality criteria to the whole site Below that and down to the 1,000 square foot major project trigger only the newly disturbed area must be treated for peak flow reduction and water quality. itiiiiiimow Detention Cost Estimates Several developers' engineers were polled to determine typical cost estimates for detention. There was a wide range of estimates, especially for commercial situations. r iii 1 From Schueler, T. et al, "Is Impervious Cover Still Important? Review of Recent Research" ASCE J of Hydrologic Engineering, Vol. 14 No. 4, April, 1, 2009, pp. 309 -316. Page 9 of 10 46, amec The cost estimate for dry wells for residential application was fairly well established but considerably higher than commercial unit costs per cubic foot of storage (perhaps because of the smaller size generally). In the end, given the fact that a developer can bring in their own professional estimate it was felt that choosing a value on the low end of the range would be most acceptable. A value of $70.00 per cubic foot was chosen. 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MEMORANDUM TO: Mayor and City Council FROM: David Hornbacher, Interim Director of Utilities and Environmental Initiatives THRU: Randy Ready, Assistant City Manager John Worcester, City Attorney DATE OF MEMO: April 18, 2011 MEETING DATE: April 25, 2011 RE: Water Utility Connection Fees for Affordable Housing — Supplemental Information REQUEST OF COUNCIL: Staff requests City Council approval of a Municipal Code revision that would codify the policy establishing a water utility connection fee (tap fee) policy for a new category of affordable housing and to clarify administrative practices used for other categories of affordable housing projects. SUPPLEMENTAL INFORMATION: At the April 11, 2011 meeting, Council requested additional information as follows: 1) Financial History - Staff researched past submittals to City Council and other information sources regarding the amount of water connection fee waivers for qualified Affordable Housing projects. Research is ongoing. A summary of the information identified to date is attached as Exhibit One. 2) Ordinance Revisions — The existing ordinance was rewritten for improved readability and clarity, as well as to document a consistent policy that addresses new and other housing categories. For comparison purposes, attached is the existing Ordinance and a highlighted version of the revised Ordinance. In the highlighted version, new language is color coded yellow. Existing ordinance language is coded in other colors with a reference to the pertinent section of the ordinance. ATTACHMENTS: A - Exhibit One — Financial History B - Exhibit Two — Existing Ordinance Section 25.12.160 C - Exhibit Three — Proposed Ordinance with Highlights Page 1 of 1 Exhibit One— Financial History Year Category # of Units $ Amount Prior to Category 1 2 $356,399.90 1989 Category 2 33 Category 3 66 (sum of connection fees waived RO Studio 53 during this period) No Category Specified 21 1990 - None Specified $1,300,000.00 1994 (reference Council Memo dated Nov. 14, 1994 from Phil Overeynder, Water Director thru Amy Margerum, City Manager) 1995 Category 2 14 $314,097.10 Category 3 4 2005 Category 3 14 (sum of connection fees waived 2011 Category 1 2 during this period) Category 2 6 Category 4 2 Exhibit Two — Existing Ordinance Section 25.12.160 Sec. 25.12.160. Qualified employee housing exempt from utility investment charges. (a) Qualified employee housing shall be exempt from any utility investment charges when connection is made onto the City water system. (b) Qualified employee housing shall be defined as publicly or privately constructed and owned projects which are one hundred percent (100 %) employee housing as approved by the City Council and administered by the Aspen/Pitkin County Housing Authority. (c) To maintain the designation as qualified employee housing, all employee- housing units shall be deed restricted as such and shall have installed properly maintained and continuously operable water conservation devices and practices as designated from time to time by the City Council by ordinance or resolution or the City Manager by plumbing advisory codes. (d) Should the qualified employee housing deed restrictions be eliminated or the water conservation devices and practices not be installed, properly maintained or continuously operable, the developer of such units or the owners thereof shall reimburse the City for the cost of the utility investment charges exempted by this Section. The City Manager shall establish a method of accomplishing this payment so as not to be unduly burdensome on the developer or owners. (e) The following schedule of water utility fee waivers shall be applied to approved developments in the All Zone District, which consist of a mix of deed - restricted affordable housing units and unrestricted (free market) units. The unit category classifications refer to the classifications of the Aspen - Pitkin Housing Authority as now in effect and as may hereafter be amended. Housing Category Fee Waiver Level Category 1 100% Fee Wavier Category 2 70% Fee Waiver Category 3 40% Fee Waiver Category 4 0% Fee Waiver Resident Occupied 0% Fee Waiver Free Market Units 0% Fee Waiver ORDINANCE NO. 13 (Series of 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING SECTION 25.12.160 OF THE CITY OF ASPEN MUNICIPAL CODE RELATING TO THE WAIVER AND EXEMPTION OF UTILITY INVESTMENT CHARGES FOR CERTAIN AFFORDABLE HOUSING PROJECTS. WHEREAS, the City Council desires to clarify the types of affordable housing projects eligible for exemption from and waivers of the utility investment charges when connecting to the City of Aspen's water system. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That Section 25.12.160 of the City of Aspen Municipal Code is hereby amended to read as follows: Sec. 25.12.160. Waivers and exemptions from utility investment charges for certain employee housing projects. (a) Purpose. The purpose of this section is to identify those affordable housing projects that may be eligible for exemption from and waivers of the utility investment charges when connecting to the City of Aspen's water system. There are three types of affordable housing projects that are eligible for exemptions or waivers: (i) projects that are determined to be Qualified Employee Housing as defined herein; (ii) affordable housing projects that are eligible to receive Affordable housing Credits pursuant to Chapter 26.540 of the Municipal Code; and (iii) projects that consist of a mix of affordable housing units subject to the Aspen/Pitkin County Housing Authority Guidelines, as may be amended from time to time; and, unrestricted (free market) units. To be eligible for an exemption or waiver pursuant to this section of the Municipal Code a project shall have installed in all units properly maintained and continuously operable water conservation devices and practices as designated from time to time by the City Council by ordinance, resolution, or by regulations issued by the City Manager. (b) Definitions. As used in this Code, unless the context requires otherwise, the following terms shall be defined as follows: (i) Qualified Employee Housing shall be defined as publicly or privately constructed and owned projects which: * are not constructed for mitigation purposes or which receive any form of Affordable Housing Credits such as those set forth at Chapter 26.540 of the Municipal Code; and * are composed of one hundred percent (100 %) employee housing units; and, * are deed restricted to ensure that all units are subject to, and administered by, Aspen/Pitkin County Housing Authority Guidelines, as may be amended from time to time; and, * are maintained as qualified employee housing; and (ii) The Fee Waiver Schedule refers to the following schedule of the percent of the utility investment charges that may be waived based upon the category of the units within the affordable housing project. Housing Categories as referenced in the Aspen/Pitkin Fee Waiver County Housing Authority Guidelines, as may be Level amended from time to time. Category 1 100% Fee Wavier Category 2 70% Fee Waiver Category 3 40% Fee Waiver Category 4 0% Fee Waiver Category 5 0% Fee Waiver Category 6 0% Fee Waiver Resident Occupied 0% Fee Waiver Free Market Units 0% Fee Waiver (iii) Affordable and Free Market Mix shall be defined as a project that: * consist of a mix of both deed restricted housing to ensure that all units are subject to the Aspen/Pitkin County Housing Authority Guidelines, as may be amended from time to time and unrestricted housing (free market) units; and, * were not constructed for mitigation purposes; and * consists of units approved by the City Council in the AH Zone District. (c) Qualified Employee Housing. Qualified Employee housing shall be exempt from any utility investment charges when connection is made to the City of Aspen' s water system. (d) Projects Receiving Affordable Housing Credits. Projects that receive Affordable Housing Credits pursuant to Chapter 26.540 of the Municipal Code are eligible for a waiver of the percentage of the total utility investment charge as set forth in the Fee Waiver Schedule. (e) Affordable and Free Market Mix. Projects that are determined to be Affordable and Free Market Mix of units, and where no mitigation is required for these units or there is no 2 association with free market development, are eligible for a waiver of the percentage of the total utility investment charge as set forth in the Fee Waiver Schedule. (f) Revocation of Exemptions and Waivers. In the event that Qualified Employee Housing units, projects receiving Affordable Housing Credits, or projects that are considered Affordable and Free Market Mix projects, receive an exemption or a waiver in accordance with this section, and thereafter fail to continue being affordable housing units as contemplated herein; or, the water conservation devices and practices are not be installed as required, are not properly maintained or continuously operable, the developer of such units and the owners thereof shall be jointly and severally liable to reimburse the City for the cost of the utility investment charges exempted by this Section. The City Manager shall establish a method of accomplishing this payment so as not to be unduly burdensome on the developer or owners. (g) Tap Fee Waiver Single Occurrence. Tap Fee waivers for employee housing exemptions are a one -time occurrence at the time of project completion. Additions, remodels, and, or changes that occur after original project completion will not receive a tap fee waiver, however a credit for the ECU's assigned to the specific employee housing unit will be allowed against additional fees due to these improvements. Section 2. That if any section, subsection, sentence, clause, phrase or portion of this ordinance 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. Section 3. That this ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. A public hearing on the ordinance shall be held on the 25 day April, 2011, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. 3 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the 11 day April, 2011. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk FINALLY adopted, passed and approved this day of , 2011. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk JPW- saved: 4/18/11- water- ah waivers.doc 4 V111 MEMORANDUM TO: Aspen Planning and Zoning Commission THRU: Chris Bendon, Community Development DirectorQ I$ FROM: Jessica Garrow, Long Range Planner 6 RE: Stage III Building Redevelopment (625 E. Main St) Amendment of Subdivision Development Order, Planned Unit Development, and Rezoning Ordinance No. 12, Series 2011 (Parcel 2737-073-32-002) DATE OF MEMO: April 4, 2011 MEETING DATE: April 11, 2011 APPLICANT /OWNER: STAFF RECOMMENDATION: 625 Main Aspen LLC, Jeff Cardot Staff recommends City Council approve the project, with conditions. REPRESENTATIVE: Adam Roy, David Johnston Architects P &Z RECOMMENDATION: P &Z recommends City Council approve the project, LOCATION: with conditions. Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO, commonly known SUMMARY: as 625 E. Main St. The Applicant requests City Council approve an amendment to a subdivision development order, a CURRENT ZONING & USE PUD to increase the net livable space in the free - Commercial (C -1) zone district with approvals for a market units, and a rezoning. three -story mixed -use building consisting of twenty - six (26) stacked sub -grade parking spaces, three (3) exterior surface parking spaces, two (2) commercial spaces, one (1) office space, five (5) affordable ., housing units, five (5) free - market housing units, and a common roof deck PROPOSED LAND USE: The Applicant is requesting to develop a three story mixed -use building containing thirteen (13) sub - grade parking spaces, three (3) exterior surface parking spaces, three (3) commercial spaces, one (1) office space, two (2) affordable housing units, and three (3) free - market housing units. Page 1 of 12 SPECIAL NOTE: Because the project was originally approved under the 2006 Municipal Code (pre- moratorium), and the applicant requests amending those approvals that remain vested, this application is being reviewed under the 2006 Land Use Code. LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals from City Council to redevelop the site: • Amendment of a Subdivision Development Order pursuant to Land Use Code Section 26.480 (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). • Planned Unit Development to exceed the net livable unit size cap of the free - market units pursuant to Land Use Code Section 26.445. (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). • Rezoning to place a PUD designation on the property pursuant to Land Use Code Section 26.310. (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). The Applicant has received the following Growth Management approvals from the Planning and Zoning Commission: • Amendment to a Growth Management Development Order pursuant to Land Use Code Section 26.470.090.B. • Growth Management Review for Expansion/New Commercial, Lodge, or Mixed -Use Development for the development of a new mixed -use building pursuant to Land Use Code Section 26.470.040 C.2. • Growth Management Review for Affordable Housing for the development of affordable housing pursuant to Land Use Code Section 26.470.040 C.7. PROJECT SUMMARY: The Applicant has requested approvals necessary to amend the approved development at 625 E Main Street, located on the south side of E. Main St. between S. Hunter St. and S. Spring St. The subject site is a 10,000 square foot lot that is approved to be redeveloped with a new mixed - use building containing commercial, office, affordable housing, and free market residential uses. The property is located in the Commercial (C -1) zone district. The site is slightly sloped from Main St. up to the alley. The previously approved (Ordinance 41, Series of 2006) and vested project is for: • A completely sub -grade parking garage with access provided by an internal automobile lift. Twenty -three (23) parking spaces were approved, with thirteen (13) on the basement floor and ten (10) of those spaces outfitted with a vertical lift. In Page 2 of 12 addition the basement is approved to have resident and tenant storage units, mechanical areas, and stair and elevator access to the rest of the building. • A street level containing two (2) commercial spaces totaling 5,861 sf of net leasable space, common circulation areas /facilities, and the top end of the automobile lift. Three (3) head -on parking spaces are provided in the alley, as is an exterior trash/service /delivery area. • A second level containing one (1) office space totaling 2,029 sf of net leasable space, one (1) free market residence with 1,570 sf of net livable space, five (4) one - bedroom affordable housing units totaling 3,534 sf of net livable space, and common circulation areas. Four (4) of the affordable housing units face the north, or Main Street side of the building. One (1) of the affordable housing units has a 51 sf deck on the west side of the building, but no other windows. • A third floor containing four (4) free - market residential units totaling 6,799 sf of net livable space. • A roof with a common deck, two access stairs, an access elevator, and a green roof. This Applicant proposes to amend the approval as follows: • A completely sub -grade parking garage with access provided by an internal automobile lift. The garage will provide thirteen (13) parking spaces, one (1) commercial space totaling 2,118 sf of net leasable area, and stair and elevator access to the rest of the building. • A street level containing two (2) commercial spaces totaling 5,973 sf of net leasable space, common circulation areas /facilities, and the top end of the automobile lift. Three (3) head -on parking spaces are provided in the alley, as is an exterior trash/service /delivery area. • A second level containing one (1) office space totaling 1,896 sf of net leasable space, one (1) free market residence totaling 2,527 sf of net leasable space, two (2) three - bedroom affordable housing units totaling 2,786 sf of net livable area, and common circulation areas. The affordable housing units face the north, or Main Street side of the building. • A third level containing two (2) free - market units totaling 5,495 sf of net livable space, and common circulation space. The Applicant has increased the size of the deck areas dedicated to the free - market units, and decreased the size of the third floor by approximately 19 %. • The Applicant proposed eliminating the roof -top deck as well as the Green Roof. These changes mean that the full- height access stairs and elevator can be removed from the roof. Page 3 of 12 Table 1: Comparison of Approved vs. Proposed vs. Required Dimensional Requirements (Changes are highlighted in Yellow) t i ..v - y } w f,p" �,r9, 2 p a ¢ d , '�E x fiY 3 ei f /. 1 d m t > 1 1 x { ¢ 4 . Y y rt Y �� M �.� r +J +�r�!. 4 k.vx N x y ^.2'P CS ' Minimum Lot 3,000 sq. ft. 10,000 sq. ft. 10,000 sq. ft. Size Minimum Lot Not applicable to mixed 100 Feet 100 Feet Width use development Minimum Lot Not applicable to a mixed N/A N/A Area/Dwelling use development Minimum Front Not applicable to a mixed 0 Feet 0 Feet Yard Setback use development Minimum Side Not applicable to a mixed 0 Feet 0 Feet Yard Setback use development Minimum Rear No requirement for mixed 0 Feet 0 Feet Yard Setback use development; but trash/utility service area must abut alley Maximum 42 Feet for flat roofs. Building: 42 Feet Building: 38 Feet 6 Inches Height Elevator Shaft extends 5 Mechanical Equipment Feet above to 47 Feet (including elevator): 43 Feet Minimum Not applicable to a mixed N/A N/A Distance use development between Buildings Pedestrian Pursuant to Section Cash -in -Lieu fee of $50 Cash -in -Lieu fee of $50 Amenity Space 26.575.030, Pedestrian per 1000 square feet = per 1000 square feet = Amenity $50,000 for this lot $50,000 for this lot Page 4 of 12 y . j M1 S " • ° ' r Approved A '*-4;„ � - ' ' nal ' t ; s d t ,i i' Requir 'fi t '£ n t R. "a t 33 G as � y p +rvli �,, b " } k G- pTLR n a � �K .�Jt. Floor Area Cumulative Commercial: Cumulative 11,144 sq. Cumulative 9,947 sq. ft. Ratio (FAR) Maximum: 1.5:1 up to Maximum: ft. or Maximum: or 0.99:1 3:1 2:1 (with 25,427 sq. 1.11:1 23,606 sq. affordable ft. or ft. or housing 2.54:1 2.36:1 increase) _ Lodging, N/A N/A Arts, Cultural and Civic, Public, Recreational, Academic uses: 3:1 Affordable 4,425 sq. 3,660 sq. ft. Housing: No ft. or or 0.37:1 limitation 0.44:1 Free - Market: 9,858 sq. 9,999 sq. ft. 1:1 ft. or or l:1 0.98:1 Duplex, N/A N/A detached residential, bed and Breakfast: 80% pg allowable floor area of same -sized lot in R6 zone district Page 5 of 12 � '^*"k.4 b St t. n . 4 CI Q fi Y k "i Maximum Maximum 2,000 sq. ft. for Free- Affordable Free- Affordable Residential Unit both free - market Market Units: Market Units: Size (Sq. Ft.) residential units and Units: A. 753 sf Units: affordable housing A. 1,964 sf B. 700 sf A. 2,658 sf A. 1,435 sf residential units. The free- B. 1,927 sf C. 700 sf B. 2,837 sf B. 1,351 sf market component must be C. 1,777 sf D. 681 sf C. 2,527 sf no more than the same D. 1,131 sf E. 709 sf (Total size: (Total size: percentage as the E. 1,570 sf (Total 8,022 sf) 2,786 sf) commercial component (Total size: size: 8,369 sf) 3,543sf) Free - Market The total free - market net Free Market Net Livable Free Market Net Livable Net Livable to livable space shall be no Area (NLA): 8,369 sf Area (NLA): 8,022 sf Commercial Net greater than the total Leasable Ratio above grade space Above -Grade Above -Grade Commercial associated with Commercial Net Net Leasable Area (NLA): (commercial net leasable Leasable Area (NLA): 7,869 sf space). 7,890 sf The ratio is not met by The ratio is not met by 153 sf (There is 153 sf 479 sf (There is 497 sf more Free - Market NLA more Free - Market NLA than Commercial NLA) than Commercial NLA) The discrepancy is being This discrepancy can be decreased. carried forward. SUMMARY OF P&Z REVIEW The Applicant received three (3) separate growth management approvals from the Planning and Zoning Commission to change the internal division of space — an Amendment to a Growth Management Development Order, a review for new commercial space, and affordable housing (required because of the request for new commercial space). It should be noted that when affordable housing units are provided on -site, the individual mitigation requirements are not added together for a combined sum. As long as the largest amount of required mitigation of any one growth management request is met, the on -site affordable housing satisfies both requirements. For this application, the largest requirement is generated by the free - market residential development. The changes to internal division of space are outlined below in Table 2: Page 6 of 12 Table 2: Changes to Internal Division of Space Approved Project Proposed Project Net Change Affordable Housing 5 1- bedroom units 2 3- bedroom units Decrease of 3 units AH net livable 3,543 sf NLA 2,786 sf NLA Decrease of 757 sf NLA Number of FTEs housed 8.75 FTEs 6 FTEs Decrease of 2.75 FTEs housed Free - Market Housing 5 units 3 units Decrease of 2 units FM net livable 8,369 sf NLA 8,022 sf NLA Decrease of 347 sf NLA Commercial Space 7,890 sf NLA 9,988 sf NLA Increase of 2,098 sf NLA Above Grade 7,890 sf NLA 7,869 sf NLA Decrease of 21 sf NLA Below Grade 0 sf NLA 2,118 sf NLA Increase of 2,118 sf NLA Affordable Housing Mitigation: The Code allows housing provided on -site to simultaneously satisfy both the commercial and free- market FTE housing requirements. The applicant is exceeding the affordable housing requirement by approximately 16 %. Commercial FTE requirements: 5.18 FTE Free Market FTE requirements: 2,406 sf AH net livable FTE housing provided: 2,786 square feet housing 6 FTEs Mechanical Equipment: The Planning and Zoning Commission recommended that the Applicant investigate ways to consolidate the mechanical equipment on the center of the roof, and that, to the greatest extent reasonably possible, the height of the mechanical equipment be limited to five (5) feet above the building height, or to 43 feet. The Applicant has made some changes to the roof design to accommodate these proposed changes. These plans are attached as Exhibit I. Staff has examined these plans and believes they meet the requirements of the land use code. These changes are also incorporated into the dimensional table above. COUNCIL QUESTIONS FROM FIRST READING: 1. Please explain why staff believes additional commercial space is consistent with the neighborhood. a. 625 E Main Street is located in the Commercial (C -1) zone district, which is intended to provide a mix of commercial and residential development. Nearly every building on the block, and within the C -1 zone district, includes commercial space. There is a duplex located to the east of the building and a single - family home located across the alley. These buildings are an anomaly in the zone district. Commercial spaces are located across the street in Concept 600, immediately to the west in the Hunter Square building, and across the alley in multiple buildings. The applicant proposes (and has growth management approvals for) 9,988sf of net leasable space, when the zone district allows up to 15,000sf of net leasable. Staff finds that the additional commercial space is consistent with the neighborhood and the zone district. Page 7 of 12 2. Please outline the pedestrian amenity requirement. a. The 2006 Land Use Code allows a cash -in -lieu payment by right when the site being redeveloped has an existing condition of less than 10% of pedestrian amenity space (as defined in the Land Use Code). When the original redevelopment of the Stage III Theater was proposed, the site had less than 10% pedestrian amenity space, so a cash - in -lieu payment was allowed by right and approved by the Planning and Zoning Commission as part of the Commercial Design Review. The calculation in the 2006 code is that a payment of $50 per square foot of space is required. For this property, that resulted in a payment requirement of $50,000. 3. How does the proposal compare to the zone district dimensional requirements? a. The application is vested under the 2006 Land Use Code. The proposal meets all the underlying zone district requirements, with the exception of the free - market unit size. Under the 2006 Land Use Code, residential units are limited to 2,000 sf. The applicant proposes three units that exceed the requirement by 527 sf to 837 sf. The proposed height of the building is 3 '/� feet lower than allowed (38 feet 6 inches when 42 feet is allowed), and the proposed height of the mechanical equipment is 4 feet lower than allowed (43 feet when 47 is allowed). The overall FAR of the building is below code and is lower than the previous approval (proposed at 2.36:1 when 3:1 is allowed and 2.54:1 was approved). The free - market and affordable housing net livable square footage is decreasing (FM goes from 8,369sf to 8,022sf and AH goes from 3,543sf to 2,786sf). The amount of commercial net leasable square footage is increasing, but remains lower than that allowed under the code (9,988 sf is proposed when 15,000 is allowed). The project exceeds the affordable housing requirement by about 16 %, and is exceeding the parking requirement by 10 spaces. (See also Table 1 and Table 2 for side -by -side comparison of the dimensional changes) 4. Please explain staff's unit size recommendation. a. Staff is recommending that the free - market unit sizes be limited to 2,500 sf through the use of Historic TDRs. Staff believes it is important to maintain the viability of the TDR program, and that allowing a project to exceed unit size caps without TDRs could negatively impact the program. In addition, the 2,500 sf cap is currently in the land use code, and while it may be worthwhile to have a policy discussion about the merits of the unit size cap, staff recommends that the discussion occur at the policy level rather than at a project level. This will ensure that all the aspects of the cap are discussed, including impacts to neighborhoods, impacts to the Historic TDR program, and if the original reasons for creating the unit size cap remain valid (see also discussion below in Staff Comments on Free - Market Unit Size). Note: the pedestrian amenity section of the 2006 code was amended in 2007. The current Land Use Code does not allow a by -right cash -in -lieu payment. The City Council may approve a cash -in -lieu payment of pedestrian amenity space after considering a recommendation from P &Z or HPC. 2 The lot is 10,000 sf, so 10% pedestrian amenity requirement is 1,000 sf. The original development included approximately 845 sf (or 8.45 %) of pedestrian amenity space. Page 8 of 12 STAFF COMMENTS: PLANNED UNIT DEVELOPMENT: The Applicant is requesting a PUD in order to increase the size of the free - market units beyond 2,000 sf net livable to 2,527 sf, 2,658sf, and 2,837sf. The applicant has requested the unit size increase be allowed without the use of TDRs. Staff believes increasing the units beyond 2,000 sq NLA to 2,500 sf NLA with the use of TDRs is acceptable and is consistent with city policies and the current code. However, staff does not believe increasing the unit size beyond 2,500 sf is appropriate because this could negatively impact the TDR Program. While it may be worthwhile to explore changes to the TDR Program, staff believes that this should occur at a policy level, not at a project level. Free - Market Unit Size: As noted in the dimensional table, the request to exceed the unit size cap is the only dimensional requirement that is inconsistent with the 2006 Land Use Code. At the time, residential units were not permitted to exceed 2,000 sq ft. of net livable space. This requirement was established in 2006 for two reasons I. To encourage density in the downtown and the potential to have more lights on in the city core. Part of the Philosophy under the Economic Sustainability Chapter of the AACP outlines this desire: "Essential to long -term viability is the unique, varied, high quality, and welcoming experience Aspen offers to both residents and a diverse visitor population. They demand a lively, small -scale downtown with diverse and unique shops and varied choices of accommodations, including small lodges." 2. To encourage multiple ownership of buildings in the downtown and maximize multiple uses of a property. At the time there was a concern that people could purchase a downtown building and convert the entire building to one very large residence, which would decrease the vitality of downtown. As part of the 2006 — 2007 moratorium, the ability to increase unit sizes from 2,000 sf to 2,500 sf by landing one TDR was added to many zone districts, including the C -1 zone district. This was added to the Land Use Code to help bolster the City's Historic TDR Program. Because this ability was not in the 2006 Land Use Code, a PUD is needed to amend enable the landing of TDRs to increase unit sizes to 2,500 sf. The Applicant is requesting approval of units that are larger than 2,500 sf. Under the 2006 Land Use Code, three free - market units could total 6,000 sf. A PUD could be approved to allow the three units to be 2,500 sf each, for a total of 7,500 sf (this would be consistent with the Code in effect today). The applicant is requesting the three (3) free - market units be increased in size to a total of 8,022 sf (the second floor unit would be 2,527 sf, the third floor units would be 2,658 sf and 2,837 sf). A PUD could be approved to allow the request increase in net livable space — with or without the landing of TDRs. The Applicant is requesting the larger unit size without the landing of TDRs. 3 The 2006 Land Use Code limited residential units to 2,000 square feet. " Note: that the affordability of free - market units was not one of the reasons cited for creating the unit size cap. 5 Since TDRs are worth 500 sf of net livable space, if TDRs were used to acheieve a total of 8,022 sf, 5 TDRs would be needed. Page 9 of 12 Commercial: Free - Market Ratio: The 2006 Code includes a requirement that "The total free- market net livable space shall be no greater than the total above grade space associated with (commercial net leasable space)." Through the 2007 Council review process, the application was approved with 479 sf more free - market net livable space than commercial net leasable space. This discrepancy can be carried forward, but staff recommends memorializing this in the approval. The Applicant is decreasing the discrepancy to 153 sf. In reviewing the PUD portion of the application, Staff believes that the proposal as requested does not meet the applicable standards established in Land Use Code. Staff recommends that a PUD be used to enable each free- market unit to increase in size from 2,000 sf to 2,500 sf through the use of a TDR. In addition, staff recommends that the overall dimensional requirements of the project be consistent with the C -1 zone district in effect in 2006, including the requirement that free- market net livable space be less than the amount of commercial net leasable space. The Planning and Zoning Commission found that the application, as proposed, meets the applicable review criteria and recommends City Council approve the project as proposed. P &Z did not recommend the use of TDRs. REZONING: The Applicant is required to request a Rezoning because of the PUD request. The Rezoning will enable the PUD designation to be added to the Zoning Map. Staff believes increasing the units beyond 2,000 sq NLA to 2,500 sf NLA with the use of TDRs is acceptable and is consistent with city policies and the current code. However, staff does not believe increasing the unit size beyond this is appropriate. Staff believes this could negatively impact the TDR Program. While it may be worthwhile to explore changes to the TDR Program, staff believes that this should occur at a policy level, not at a project level. In reviewing the Rezoning portion of the application, Staff believes that the proposal as requested does not meet the applicable standards established in Land Use Code. The Planning and Zoning Commission found that the application, as proposed, meets the applicable review criteria and recommends City Council approve the project as proposed. SUBDIVISION: The Applicant is requesting an amendment to an approved subdivision development order because of the changes to the internal division of space. The units will need to be condominiumized in order to demarcate ownership. Once construction is completed, the developer must file a condominium plat and documents approvable by the Community Development Director. 6 The approved Free - Market Net Livable space was 8,369 sf, and the approved Commercial Net Leasable space was 7,890 sf. (8,369 — 7,890 = 479 sf over) The proposed above -grade net leasable space is 7,869 sf. 8,022 sf net livable — 7,869 sf net leasable = 153 sf of discrepancy. Approved discrepancy is 479 sf. Page 10 of 12 The Applicant has proposed changes to the parking configuration. The proposal provides sixteen (16) spaces, ten (10) more spaces than are required by code. These spaces are located both sub - grade in a garage and at grade off the alley. The mitigation numbers are found below. The Applicant is able to retain a deficit of parking if the existing building provides less parking than is required by the code (26.515.010B). On the existing Stage 3 property, there is a deficit of four (4) spaces. Total Parking Provided in New Development: 13 subgrade /garage spaces + 3 surfaces spaces = 16 spaces 16 spaces provided, only 6 required. Provided parking = 10 more than required The Applicant has committed to providing one parking space for each affordable housing unit, which is not a requirement of the Land Use Code. The Parking Department has recommended that more of the off - street parking be designated to the residences than to commercial, but this is not required by the Land Use Code. In reviewing the subdivision portion of the application, Staff believes that the proposal does not meet the applicable subdivision review standards established in Land Use Code because of the requested increase in the amount of net livable space in the free- market residential units. Staff believes the remaining aspects of the application (reducing parking, additional commercial space, elimination of roof deck, etc) meets the requirements of Subdivision. The Planning and Zoning Commission found that the application, as proposed, meets the applicable review criteria and recommends City Council approve the project as proposed. REFERRAL AGENCY COMMENTS: The City Engineer, Fire Marshal, Water Department, Aspen Sanitation District, Housing Department, and the Parks Department have all reviewed the proposed application and their requirements have been included as conditions of approval when appropriate. STAFF RECOMMENDATION In reviewing the proposal, Staff believes that the request for additional commercial space is consistent with the neighborhood and the land use code. However, staff does not believe the request to exceed the unit size cap for residential units is consistent with the neighborhood or the land use code. Staff recommends that the project be approved with the ability to achieve unit sizes of 2,500 sf of net livable space through the use of three (3) TDRs. While the 2006 code limits unit sizes to 2,000 sf of net livable space, a size of 2,500 sf through the use of TDRs is consistent with the code in effect today. 8 The approved project included 10 vertically stacked parking spaces. While the vertical stacked parking spaces do not count under the code, this would have created a total of 26 spaces. The proposed project eliminates the vertical stacking of cars. Page 11 of 12 In addition, staff recommends that the requirements that the free - market residential net livable ratio be memorialized through this application. P &Z RECOMMENDATION The Planning and Zoning Commission recommended that the application be approved, as submitted by the applicant (ie: approving with conditions, the ability to construct three (3) free - market units totaling 8,022 sf without the use of TDRs, and associated reviews.). The P &Z also requested that the height of the mechanical equipment be limited to 43 feet and that it be located in the center of the building. The applicant has incorporated these changes in Exhibit I. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units of 2,500 sf each though the use of three (3) TDRs, on the property located at 625 East Main St." ALTERNATIVE MOTIONS: "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units of 2,000 sf each, on the property located at 625 East Main St." "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units totaling 8,022 sf through the use of five (5) TDRs, on the property located at 625 East Main St." "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units totaling 8,022 sf without the use of TDRs on the property located at 625 East Main St." (Staff Note This is the Applicant's request and the P &Z recommendation) ATTACHMENTS: (note: Attachments included in this packet are in Bold) EXHIBIT A — Review Criteria EXHIBIT B — Development Review Committee Comments EXHIBIT C - Application dated December 30, 2010 (provided in first reading packet) EXHIBIT D — Supplemental Material dated March 1, 2011 (provided in first reading packet) EXHIBIT E — Previously Approved Floor Plans (Dated February 12, 2007) (provided in first reading packet) Exhibit F — Supplemental Renderings (inserted in Application) (provided in first reading packet) Exhibit G — Planning and Zoning Commission Reso 7, Series of 2011 Exhibit H — Minutes from Planning & Zoning Commission March 8, 2011 meeting Exhibit I — Supplemental Material dated April 1, 2011 Page 12 of 12 In addition, staff recommends that the requirements that the free - market residential net livable ratio be memorialized through this application. P &Z RECOMMENDATION The Planning and Zoning Commission recommended that the application be approved, as submitted by the applicant (ie: approving with conditions, the ability to construct three (3) free - market units totaling 8,022 sf without the use of TDRs, and associated reviews.). The P &Z also requested that the height of the mechanical equipment be limited to 43 feet and that it be located in the center of the building. The applicant has incorporated these changes in Exhibit I. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units of 2,500 sf each though the use of three (3) TDRs, on the property located at 625 East Main St." ALTERNATIVE MOTIONS: "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units of 2,000 sf each, on the property located at 625 East Main St." "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units totaling 8,022 sf through the use of five (5) TDRs, on the property located at 625 East Main St." "I move to approve Ordinance No. 12, Series of 2011, approving with conditions, the Amendment to a Subdivision Development Order, a PUD, and a rezoning to allow three (3) free - market units totaling 8,022 sf without the use of TDRs on the property located at 625 East Main St." (Staff Note: This is the Applicant's request and the P&Z recommendation) ATTACHMENTS: (note: Attachments included in this packet are in Bold) ExHIBIT A — Review Criteria ExHIBIT B — Development Review Committee Comments EXHIBIT C - Application dated December 30, 2010 (provided in first reading packet) EXHIBIT D — Supplemental Material dated March 1, 2011 (provided in first reading packet) EXHIBIT E — Previously Approved Floor Plans (Dated February 12, 2007) (provided in first reading packet) Exhibit F — Supplemental Renderings (inserted in Application) (provided in first reading packet) Exhibit G — Planning and Zoning Commission Reso 7, Series of 2011 Exhibit H — Minutes from Planning & Zoning Commission March 8, 2011 meeting Exhibit I — Supplemental Material dated April 1, 2011 Exhibit J — Supplemental Material dated April 4, 2011 Page 12 of 12 ORDINANCE NO. 12 (SERIES OF 2011) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS AN AMENDMENT TO A SUBDIVISION DEVELOPMENT ORDER, PLANNED UNIT DEVELOPMENT, AND REZONING FOR 625 E. MAIN STREET, LOTS E, F, G, EASTERLY 10 FEET OF LOT D, BLOCK 98, CITY AND TOWNSITE OF ASPEN, CO, PITKIN COUNTY, COLORADO PARCEL NO. 2737-182-02204 WHEREAS, the Community Development Department received an application from Aspen Main Street Properties LP, represented by David Johnston Architects, requesting approval of an amendment to a growth management development order, two Growth Management Reviews, an amendment to a subdivision development order, Planned Unit Development, and rezoning to construct a mixed -use building consisting of 9,988 sf of net leasable space, two affordable housing residential units, and three free - market residential units; and, WHEREAS, the subject property is zoned C -1 (Commercial); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during a duly noticed public hearing on March 8, 2011, the Planning and Zoning Commission approved Resolution No. 7, Series of 2011, by a four to zero (4 — 0) vote, approving an amendment to a growth management development order, two Growth Management Reviews for the development of a mixed -use building that includes commercial space, office space, free - market housing, and affordable housing, and recommending that City Council approve with conditions an amendment to a subdivision development order, Planned Unit Development, and rezoning for the property located at 625 E. Main Street, Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO; and, WHEREAS, on April 11, 2011 the Aspen City Council approved Ordinance No. 12, Series 2011, on First Reading by a five to zero (5 -0) vote, approving with conditions an amendment to a subdivision development order, Planned Unit Development, and rezoning of 625 E. Main Street, Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO; and, WHEREAS, during a public hearing on April 25, 2011, the Aspen City Council approved Ordinance No. 12, Series 2011, by a to L -D vote, approving with conditions an amendment to a subdivision development order, Planned Unit Development, and rezoning of 625 E. Main Street, Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO; and, Ordinance 12, Series 2011 Page 1 of 8 WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Approval Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Aspen City Council hereby approves with conditions an amendment to a subdivision development order, Planned Unit Development, and rezoning to construct a mixed -use building consisting of two (3) commercial units, one (1) office unit, three (3) free - market residential units, and two (2) deed - restricted affordable housing units on the property located at 625 E. Main Street, Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO. Section 2: Plat and Agreement Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Applicant shall record a Subdivision/PUD agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, and Land Use Code Section 26.445, Planned Unit Development, within 180 days of this approval. requirements of Land Use Code Section 26.480, Subdivision, within 180 days of such approval. The Subdivision Agreement shall also include a commitment to satisfy all conditions of Planning and Zoning Commission Resolution Number 7, Series of 2011 as well as all conditions of this Ordinance. A final Condominium Plat may be approved and signed by the Community Development Director upon substantial completion of construction. Section 3: Dimensional Requirements The project shall be subject to Aspen Municipal Code Chapter 26.575, Miscellaneous Supplemental Regulations and with the Commercial (C -1) zone district, in place at the time of land use application submittal in April 2006. Changes subsequent to issuance of a Certificate of Occupancy shall be subject to the Land Use Code in place at the time of proposed changes, with the exception of the size of the Free - Market units, and Free - Market Net Livable to Commercial Net Leasable Ratio as outlined in the table below. Ordinance 12, Series 2011 Page 2 of 8 Dimensional Requirement Proposed Dimensional Requirements Free Market Net Livable Area (NLA): 8,022 sf Above -Grade Commercial Net Leasable Area Free - Market Net Livable to (NLA): 7,869 sf Commercial Net Leasable Ratio The ratio is not met by 153 sf (There is 153 sf more Free - Market NLA than Commercial NLA). Unit A. 2,658 sf Maximum Residential Unit Size (Sq. Unit B. 2,837 sf Ft.) Unit C. 2,527 sf (Total size: 8,022 sf) The height of the mechanical equipment shall be limited to five (5) feet above the building height, or to a total of 43 feet, and the roof - mounted equipment shall be centered in the building. Section 4: Building Permit Application The building permit application shall include the following: a. A copy of the final Ordinance and P &Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. An excavation - stabilization plan, construction management plan (CMP), and drainage and spoils report pursuant to the Building Department's requirements. The CMP shall include an identification of construction hauling routes, construction phasing, and a construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. The construction management plan shall also identify that the adjacent sidewalks will be kept open and maintained throughout construction, that landscapings, plantings and amenities on adjacent property will be protected, and that construction parking will not encroach on private property. e. Accessibility and ADA requirements shall meet adopted building code requirements. f An approved Landscape and Grading Plan satisfying the requirements of the Parks, Engineering, and Building Departments, and consistent with Exhibit A to this Ordinance. g. A stormwater plan satisfying the requirements of the Engineering Department. Section 5: Trash/Utility Service Area The trash containers shall be wildlife proof and meet the regulations pertaining to size and security. Section 6: Sidewalks, Curb, and Gutter The finished floor of the building is approximately 1.3 feet above the top back of curb, it proposes challenges in meeting the department's standards for accessibility and door swing clearance along Main Street. Additionally structural soils will be required for the sidewalk to Ordinance 12, Series 2011 Page 3 of 8 improve the growth area for the planting strip. Due to the condition of the curb and gutter that fronts the building, it will need to be replaced prior to CO of the building. Plans must be consistent with Exhibit A to this Ordinance. All improvements shall be made prior to a Certificate of Occupancy on any of the units within the development. Section 7: Affordable Housing 1. The mitigation with the two three - bedroom units has been satisfied. The owner shall convey an undivided 1 /10 of 1% ownership interest in the lot on which the units are situated to APCHA. The APCHA ownership interest shall be in perpetuity or until such time as the units are converted to ownership units, or the statutory restriction on rent control units is eliminated. The units are to be ownership units sold through the lottery system after the initial sale, subject to the following conditions: a. The developer shall have the right to sell to a fully qualified household of its choice for the initial sale only. The units shall be specified in the deed restriction at a Category 4 but sold for $305,000 ($15,000 under the maximum Category 4 sales price stated in the Guidelines). The qualified household must meet the minimum occupancy requirement for the unit (a household of three with at least one dependent as defined in the Guidelines), no higher than a Category 4 as specified in the Guidelines, and a minimum work history in Pitkin County of four years prior to application. All other conditions for a qualified employee must be adhered to as well. b. Since the project is a mixed commercial/free - market/deed- restricted project, the assessments shall be determined based on the differential between the price values of the free - market component compared to the deed - restricted component and approved by APCHA. This language shall be required in the approval and in the Covenants associated with the project. No changes to this restriction would be allowed without APCHA's approval. Voting rights shall be based on one vote per unit. 2. The units shall be completed with a Certificate of Occupancy and be listed for sale at the initial price given above prior to the closing of any sale of a free - market unit. 3. The deed - restriction shall be recorded at the time of recordation of the Condominium Plat and prior to Certificate of Occupancy. 4. Each Affordable Housing Unit shall be assigned as least one (1) parking space in the sub -grade garage. Section 8: Water Department Requirements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. Ordinance 12, Series 2011 Page 4 of 8 Section 9: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. On -site utility plans require approval by ACSD. Oil and Grease interceptors (NOT traps) are required for all food processing establishment. Locations of food processing shall be identified prior to building permit. Even though the commercial space is tenet finish, interceptors will be required at this time if food processing establishments are anticipated for this project. Oil and Sand separators are required for parking garages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shafts drains must flow thru o/s interceptor Old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. Permanent improvements are prohibited in sewer easements or right of ways. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. All ACSD fees must be paid prior to the issuance of a building permit. The glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines. Section 10: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 11: Landscaping Planting in the Public Right of way will be subject to Landscaping in the ROW requirements. Improvements to the ROW should include new grass, irrigation and the applicant shall work with the Parks Department in order to design an appropriate trench box for the new tree plantings. The trench box or infrastructure for the sidewalk may require the use of new technologies which allow for structural support of a sidewalk and contribute to the growth and health of the tree roots. Tree plantings boxes are not approved for the landscaping in the right of way. Final Ordinance 12, Series 2011 Page 5 of 8 layout and numbers of trees will be approved by the Parks and Engineering Departments prior to issuance of building permit. The walkway located on the western property line, and approved in Ordinance 41, Series of 2006, remains a requirement. Section 12: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee prior to building permit issuance. The fee shall be calculated according to the fee schedule in Land Use Code Section 26.610.030, Fee Schedule. Section 13: Pedestrian Amenity Cash - in - Lieu Fee Pursuant to Land Use Code Section 26.575.030, Pedestrian Amenity, the Applicant shall pay a cash -in -lieu fee for pedestrian amenity in the amount equal to ten percent of the lot area prior to building permit issuance. The fee is assessed based on the following calculation: Lot area = 10,000 square feet 10% of Lot Area = 1,000 square feet Payment = $50 x 1000 square feet Pedestrian Amenity Cash -in -Lieu = $50,000, Section 14: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay a fee -in -lieu of land dedication prior to building permit issuance. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. Section 15: Parking The Applicant shall provide a minimum of thirteen (13) sub -grade parking spaces to be accessed from the alleyway via a car lift, and three (3) exterior parking spaces to be access from the alleyway. The Applicant shall assign at least one (1) sub -grade parking space for each Affordable Housing unit. Storage areas may be added to the parking stalls and the stalls may be enclosed in the future, as long as the parking spaces meet the minimum dimensions as outlined in the Municipal Code. Section 16: Financial Assurances The Owner commits and agrees that before a Building Permit is issued for any phase associated with the continuation of construction for the project at 625 East Main Street by Ordinance, the Owner shall provide to the City Building Department and the City Attorney for review and approval satisfactory evidence that the Owner has in place sufficient financing to accomplish and complete the construction related to the Building Permit being sought, including all private and Ordinance 12, Series 2011 Page 6 of 8 public improvements covered by the Building Permit, and all public improvements required under the Subdivision/PUD Agreement. Supporting cost estimates for all improvements covered by the requested Building Permit shall be prepared by the Owner's General Contractor and shall be delivered to the City Building Department for review and approval before the Building Permit is issued. A Certificate of Occupancy (CO) or a Conditional Certificate of Occupancy (CCO) shall not be issued for the project until the public improvements associated with the sidewalk area to the north of the property and any other additional public improvements that are required under the new Building Permit have been completed. Section 17: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 18: 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. Section 19: 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. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 1 l th day of April, 2011. Michael Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk Ordinance 12, Series 2011 Page 7 of 8 FINALLY, adopted, passed and approved this day of , 2011. Michael Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John P. Worcester, City Attorney Ordinance 12, Series 2011 Page 8 of 8 ' 7 e . 7 „... •-• em • 4 e 1 - 4 a I - _ ..."" * Li ] A 1 I - t - .-1 i BIZ: . a•- o-osm.r.trancpcnoemracOts 1 .; —> 2 E Ri 1 E g 03 g oi- 1 1 .• i _ , I -tt i IN \ .J , 1 ,, .i I I ; r. 1 . 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A development application for conceptual, final, consolidated, conceptual and final or minor PUD shall comply with the following standards and requirements. Due to the limited issues associated with conceptual reviews and properties eligible for minor PUD review, certain standards shall not be applied as noted. The burden shall rest upon an applicant to show the reasonableness of the development application and its conformity to the standards and procedures of this Chapter and this Title. Staff note: A PUD is being requested to allow for an increase in the size of the free- market units beyond what is allowed under the code. All other dimensional requirements comply with the underlying zoning and are not reviewed through the PUD process. A. General requirements. 1. The proposed development shall be consistent with the Aspen Area Community Plan. Staff Finding: The AACP addresses how development should look and feel, but does not address individual unit sizes. The AACP talks about "fosterling) a well - balanced community through integrated design that promotes economic diversity, transit and pedestrian friendly life - styles, and the mixing of people from different backgrounds." (Managing Growth Goal E, page 19) The Design Quality chapter states, "We wish to encourage creativity that results in design solutions that are fresh and innovative, yet are net additions to the build environment by being contextually appropriate and harmonious without being copies of that which already exists." (Page 43) Stafffinds that the AACP does not directly address unit size. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. Staff Finding_ Multi family units are consistent in this area. Across the street is the Concept 600 building, which is a multi family building. Residential units are also located directly to the east of the building and across the alley. The residential units at 631 E Main (directly to the east) are approximately 1,200 sq. ff in size. A single family home across the alley is approximately 4,000 sq. ft., and the recently approved redevelopment at 632 East Hopkins (across the street) includes a free- market unit of 1,999 sf. The units in Concept 600 are approximately 950 sf to 1,200 sf. While multi family residential units are typical in the immediate vicinity and in the neighborhood, units of this size are not typical. Stafffinds that this criterion is not met. 3. The proposed development shall not adversely affect the future development of the surrounding area. Exhibit A, Stage 3 Review Criteria Page 1 of 14 Exhibit A Staff Finding: The development of additional multi family units in this area is consistent with existing zoning. However, the size of the units proposed (the second floor unit would be 2,527 sf, the third floor units would be 2,658 sf and Z837 sf) is inconsistent with the code in effect at the time of original approval as well as the code in effect today. The area includes multi family units, but none are larger than 2,000 sf Staff believes that the free- market units should be allowed to be 2,000 sf with the option of increasing to 2,500 sf through the landing of TDRs. Stafffinds this criterion is not met by the Applicant's proposal. 4. The proposed development has either been granted GMQS allotments, is exempt from GMQS, or GMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final PUD development plan review. Staff Finding.: The proposed development has received GMQS allotments for 5 free- market residential units. This proposal is to reduce the number of free- market residential units to 3, and includes a request to amend the GMQS Development Order accordingly. Staff finds this criterion to be met. B. Establishment of Dimensional Requirements: The final PUD development plans shall establish the dimensional requirements for all properties within the PUD as described in General Provisions, Section 26.445.040, above. The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During review of the proposed dimensional requirements, compatibility with surrounding land uses and existing development patterns shall be emphasized. 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the property: a. The character of, and compatibility with, existing and expected future land uses in the surrounding area. b. Natural or man-made hazards. c. Existing natural characteristics of the property and surrounding area such as steep slopes, waterways, shade, and significant vegetation and landforms. d. Existing and proposed man-made characteristics of the property and the surrounding area such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. Exhibit A, Stage 3 Review Criteria Page 2 of 14 Exhibit A Staff Finding: All the dimensional standards, with the exception of the requested size of the 3 free- market residential units, are consistent with the land use code in effect at the time of original approval. The above referenced influences do not impact the proposal. Staff finds this standard not applicable. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding area. Staff Finding The PUD request affects the internal division of space and does not affect open space and site coverage. Staff finds this standard not applicable. 3. The appropriate number of off - street parking spaces shall be established based on the following considerations: a. The probable number of cars used by those using the proposed development including any non - residential land uses. b. The varying time periods of use, whenever joint use of common parking is proposed. c. The availability of public transit and other transportation facilities, including those for pedestrian access and/or the commitment to utilize automobile disincentive techniques in the proposed development. d. The proximity of the proposed development to the commercial core and general activity centers in the city. Staff Finding: The PUD request is only to vary the allowable size of the free - market residential units and is not requested to vary the parking requirements. The proposed amount of parking is consistent with the underlying zoning requirements. Staff finds this standard not applicable. 4. The maximum allowable density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced if: a. There is not sufficient water pressure, drainage capabilities or other utilities to service the proposed development. b. There are not adequate roads to ensure fire protection, snow removal and road maintenance to the proposed development. Staff Finding Sufficient infrastructure exists to service the development with its approved density of 5 free - market units and five affordable units. Staff finds that this standard is not applicable. Exhibit A, Stage 3 Review Criteria Page 3 of 14 Exhibit A 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density of a PUD may be reduced if: a. The land is not suitable for the proposed development because of ground instability or the possibility of mudflow, rock falls or avalanche dangers. b. The effects of the proposed development are detrimental to the natural watershed, due to runoff, drainage, soil erosion and consequent water pollution. c. The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d. The design and location of any proposed structure, road, driveway or trail in the proposed development is not compatible with the terrain or causes harmful disturbance to critical natural features of the site. Staff Finding': Natural hazards are not present that would provide a basis for a reduction in the approved density. Stafffnds that this standard is not applicable. 6. The maximum allowable density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with its surrounding development patterns and with the site's physical constraints. a. The increase in density serves one or more goals of the community as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b. The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identified in Subparagraphs 4 and 5, above, those areas can be avoided or those characteristics mitigated. c. The increase in maximum density results in a development pattern compatible with and complimentary to, the surrounding existing and expected development pattern, land uses and characteristics. Notes: a. Lot sizes for individual lots within a PUD may be established at a higher or lower rate than specified in the underlying Zone District as long as, on average, the entire PUD conforms to the maximum density provisions of the respective Zone District or as otherwise established as the maximum allowable density pursuant to a final PUD Development Plan. b. The approved dimensional requirements for all lots within the PUD are required to be reflected in the final PUD development plans. Staff Finding': The applicant is proposing reduce the approved density on the site. Staff finds this standard not applicable. Exhibit A, Stage 3 Review Criteria Page 4 of 14 Exhibit A C. Site Design. The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man-made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man -made features of the site which are unique, provide visual interest or a specific reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. 2. Structures have been clustered to appropriately preserve significant open spaces and vistas. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. 5. Adequate pedestrian and handicapped access is provided. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. 7. For non - residential land uses, spaces between buildings are appropriately designed to accommodate any programmatic functions associated with the use. Staff Finding: As noted earlier, the application request interior changes to a building and does not affect public spaces, manmade and natural features, etc. Staff finds this standard not applicable. D. Landscape Plan. The purpose of this standard is to ensure compatibility of the proposed landscape with the visual character of the city, with surrounding parcels, and with existing and proposed features of the subject property. The proposed development shall comply with the following: 1. The landscape plan exhibits a well designated treatment of exterior spaces, preserves existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. 2. Significant existing natural and man-made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. Exhibit A, Stage 3 Review Criteria Page 5 of 14 Exhibit A Staff Finding: This standard is not applicable as landscaping is not affected by this request. E. Architectural Character. 1. Be compatible with or enhance the visual character of the City, appropriately relate to existing and proposed architecture of the property, represent a character suitable for and indicative of the intended use and respect the scale and massing of nearby historical and cultural resources. 2. Incorporate, to the extent practical, natural heating and cooling by taking advantage of the property's solar access, shade and vegetation and by use of non- or less- intensive mechanical systems. 3. Accommodate the storage and shedding of snow, ice and water in a safe and appropriate manner that does not require significant maintenance. Staff Finding: This standard is not applicable as the existing architectural character is not affected by this application. F. Lighting. 1. The purpose of this standard to ensure the exterior of the development will be lighted in an appropriate manner considering both public safety and general aesthetic concerns. 2. All exterior lighting shall in compliance with the outdoor lighting standards unless otherwise approved and noted in the final PUD documents. Up- lighting of site features, buildings, landscape elements and lighting to call inordinate attention to the property is prohibited for residential development. Staff Finding: This standard is not applicable as the proposed lighting is not affected by this application. G. Common Park, Open Space, or Recreation Area. If the proposed development includes a common park, open space, or recreation area for the mutual benefit of all development in the proposed PUD, the following criteria shall be met: 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. 2. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. Exhibit A, Stage 3 Review Criteria Page 6 of 14 Exhibit A 3. There is proposed an adequate assurance through a legal instrument for the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. Staff Finding: This standard is not applicable as the existing undeveloped land is not affected by this application. H. Utilities and Public facilities. The purpose of this standard is to ensure the development does not impose an undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following: 1. Adequate public infrastructure facilities exist to accommodate the development. 2. Adverse impacts on public infrastructure by the development will be mitigated by the necessary improvements at the sole cost of the developer. 3. Oversized utilities, public facilities, or site improvements are provided appropriately and where the developer is reimbursed proportionately for the additional improvement. Staff Finding.: The Applicant is proposing to enlarge the approved 5 units by reducing the number of units to 3. Utilities are available to service the approved 5 units or the requested 3 units. Staff finds this criterion to be met. I. Access and Circulation. (Only standards 1&2 apply to Minor PUD applications) The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network, provides adequate pedestrian and recreational trail facilities and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through an approved private road, a pedestrian way, or other area dedicated to public or private use. 2. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. 3. Areas of historic pedestrian or recreational trail use, improvements of, or connections to, the bicycle and pedestrian trail system, and adequate access to significant public lands and the rivers are provided through dedicated public trail easements and are proposed for appropriate improvements and maintenance. Exhibit A, Stage 3 Review Criteria Page 7 of 14 Exhibit A 4. The recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths, and transportation are proposed to be implemented in an appropriate manner. 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public and emergency access. 6. Security gates, guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical. Staff Finding: As a proposal to merge the approved units, circulation and access are not affected. J. Phasing of Development Plan. (does not apply to Conceptual PUD applications) The purpose of this criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be defined in the adopted final PUD development plan. Staff Finding: This standard is not applicable to the review of the request. Exhibit A, Stage 3 Review Criteria Page 8 of 14 Exhibit A CHAPTER 26.310, AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP Sec. 26.310.040.Standards of review. In reviewing an amendment to the text of this Title or an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Finding The proposed development is in compliance with all the C -1 zone district requirements, with the exception of the size of the free - market residential units. The units exceed the individual unit size cap, and there is more free - market residential net livable than there is commercial net leasable, which is inconsistent with the C -1 zone district. The proposal meets all other land use regulations. Staff finds this criterion is not met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Community Plan. Staff Finding The project provides affordable housing within the city limits which meets one of the AACP's housing goals. It also contains new development within the Urban Growth Boundary which is a goal of the managing growth section of the AACP. The project promotes the AACP's goals with regards to transportation by developing a building that supports the opportunity for choice in travel modes - transit, walking, and bicycling — and that will help create a more friendly pedestrian experience by providing interest at the street level and improved sidewalk and streetscape amenities. The project is consistent with the Economic Sustainability goals of the AACP by providing needed office space which will provide opportunities for Aspen's professional community. The project is consistent with the Parks and Open Space section of the AACP as it will include improvements along sidewalks on East Main and will pay a Park Development Impact Fee. Staff finds that the overall project is consistent with the AACP, but that the AACP is silent with regard to unit size. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. Staff Finding: Multi - family units are consistent in this area. Across the street is the Concept 600 building, which is a multi - family building. Residential units are also located directly to the east of the building and across the alley. The residential units at 631 E Main (directly to the east) are approximately 1,200 sq. ft. in size. A single family home across the alley is approximately 4,000 sq. ft., and the recently approved redevelopment at 632 East Hopkins (across the street) includes a free - market unit of 1,999 sf. The units in Concept 600 are approximately 950 sf. to 1,200 sf. While multi- family residential units are typical in the immediate vicinity and in the neighborhood, units of this size are not typical. Staff finds that this criterion is not met. Exhibit A, Stage 3 Review Criteria Page 9 of 14 Exhibit A D. The effect of the proposed amendment on traffic generation and road safety. Staff Finding: The proposal is to decrease the number of units in the building, which is likely to reduce traffic generation. Staff finds this criterion is met. E. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools and emergency medical facilities. Staff Finding: There are sufficient public facilities to serve the development. Staff finds this criterion is met. F. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. Staff Finding: The application is for a previously developed parcel in the downtown. There are no environmental constraints on the property that would prohibit development or be exacerbated by development. Staff finds this criterion is met. G. Whether the proposed amendment is consistent and compatible with the community character in the City. Staff Finding: While multi- family residential units are typical in the immediate vicinity and in the neighborhood, units of this size are not typical. In addition, if TDRs are used to achieve the requested unit size staff believes it could undermine the viability of the TDR Program. (Staff is in favor of allowing TDRs to increase the size of the units to 2,500 sf, as it is consistent with the City's TDR policy). Staff finds that this criterion is not met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Finding: There have been no changes in the neighborhood since the original approval. While the project itself has stalled, and it would be a benefit to have it started again, staff does not believe this warrants the request to exceed the unit size caps. Staff finds this criterion is not met. 1. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Staff Finding: Staff believes it would be a conflict of public interest to enable the increase of unit sizes beyond 2,000 sf (or 2,500 sf with a TDR). The units exceed the individual unit size cap, and there is Exhibit A, Stage 3 Review Criteria Page 10 of 14 Exhibit A more free - market residential net livable than there is commercial net leasable, which is inconsistent with the C -1 zone district. Staff finds this criterion is not met. Exhibit A, Stage 3 Review Criteria Page 11 of 14 Exhibit A CHAPTER 26.480. SUBDIVISION REVIEW Section 26.480.050 of the City Land Use Code provides that development applications for Subdivision must comply with the following standards and requirements. A. General Requirements. a. The proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan. Staff Finding The project provides affordable housing within the city limits which meets one of the AACP's housing goals. It also contains new development within the Urban Growth Boundary which is a goal of the managing growth section of the AACP. The project promotes the AACP's goals with regards to transportation by developing a building that supports the opportunity for choice in travel modes - transit, walking, and bicycling — and that will help create a more friendly pedestrian experience by providing interest at the street level and improved sidewalk and streetscape amenities. The project is consistent with the Economic Sustainability goals of the AACP by providing needed office space which will provide opportunities for Aspen's professional community. The project is consistent with the Parks and Open Space section of the AACP as it will include improvements along sidewalks on East Main and will pay a Park Development Impact Fee. Staff finds that the overall project is consistent with the AACP, but that the AACP is silent with regard to unit size. b. The proposed subdivision shall be consistent with the character of existing land uses in the area. Staff Finding Multi - family units are consistent in this area. Across the street is the Concept 600 building, which is a multi - family building. Residential units are also located directly to the east of the building and across the alley. The residential units at 631 E Main (directly to the east) are approximately 1,200 sq. ft. in size. A single family home across the alley is approximately 4,000 sq. ft., and the recently approved redevelopment at 632 East Hopkins (across the street) includes a free - market unit of 1,999 sf. The units in Concept 600 are approximately 950 sf. to 1,200 sf. While multi - family residential units are typical in the immediate vicinity and in the neighborhood, units of this size are not typical. Staff finds that this criterion is not met. c. The proposed subdivision shall not adversely affect the future development of surrounding areas. Staff Finding The surrounding properties are close to fully developed. Additionally, the development meets all the requirements of the C -1 zone district with the exception of the unit size. Staff believes increasing the unit sizes beyond 2,500 sf (with the use of a TDR) could negatively impact the City's TDR program and could set a precedent that any time a development claims they need larger units it will be granted. While changes to the TDR program may be warranted, those should be discussed at a policy level, not based on an individual project. Staff finds this criterion is not met. Exhibit A, Stage 3 Review Criteria Page 12 of 14 Exhibit A d. The proposed subdivision shall be in compliance with all applicable requirements of this Title. Staff Finding The proposed development is in compliance with all the C -1 zone district requirements, with the exception of the size of the free - market residential units. The units exceed the individual unit size cap, and there is more free - market residential net livable than there is commercial net leasable, which is inconsistent with the C -1 zone district. The proposal meets all other land use regulations. Staff finds this criterion in not met. 13. Suitability of land for subdivision. a. Land suitability. The proposed subdivision shall not be located on land unsuitable for development because offlooding, drainage, rock or soil creep, mudflow, rockslide, avalanche or snowslide, steep topography or any other natural hazard or other condition that will be harmful to the health, safety, or welfare of the residents in the proposed subdivision. Staff Finding Staff finds that the property is suitable for subdivision. The site has an approved development and is partially developed. The site contains no overly steep topography and no known geologic hazards that may harm the health of any of the inhabitants of the proposed development. Therefore, Staff finds this criterion to be met. b. Spatial pattern efficient. The proposed subdivision shall not be designed to create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities and unnecessary public costs. Staff Finding Staff finds that the property is suitable for subdivision. Staff believes that there will not be a duplication or premature extension of public facilities because the property to be subdivided is already served by adequate public facilities. Therefore, Staff finds this criterion to be met. C. Improvements. The improvements set forth at Chapter 26.580 shall be provided for the proposed subdivision. These standards may be varied by special review (See, Chapter 26.430) if the following conditions have been met: 1. A unique situation exists for the development where strict adherence to the subdivision design standards would result in incompatibility with the Aspen Area Comprehensive Plan, the existing, neighboring development areas, and/or the goals of the community. 2. The applicant shall specify each design standard variation requested and provide justification for each variation request, providing design recommendations by professional engineers as necessary. Exhibit A, Stage 3 Review Criteria Page 13 of 14 Exhibit A Staff Finding The Applicant has consented in the application to meet the applicable improvements pursuant to Section 26.580. Staff finds this criterion to be met. D. Affordable housing. A subdivision which is comprised of replacement dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.520, Replacement Housing Program. A subdivision which is comprised of new dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.470, Growth Management Quota System. Staff Finding The Applicant is providing affordable housing units as required by the Land Use Code and meets the affordable housing review standards of the GMQS system. Staff finds this criterion to be met. E. School Land Dedication. Compliance with the School Land Dedication Standards set forth at Chapter 26.630. Staff Finding The proposed subdivision is required to meet the School Land Dedication Standards pursuant to Land Use Code Section 26.630. The Applicant has proposed to pay cash -in -lieu of providing land, which will be paid prior to building permit issuance. Thus, staff finds this criterion to be met. F. Growth Management Approval. Subdivision approval may only be granted to applications for which all growth management development allotments have been granted or growth management exemptions have been obtained, pursuant to Chapter 26.470. Subdivision approval may be granted to create a parcel(s) zoned Affordable Housing Planned Unit Development (AH -PUD) without first obtaining growth management approvals if the newly created parcel(s) is required to obtain such growth management approvals prior to development through a legal instrument acceptable to the City Attorney. (Ord. No. 44 -2001, § 2) Staff Finding: The proposed development has received GMQS allotments for 5 free - market residential units. This proposal is to reduce the number of free - market residential units to 3, and includes a request to amend the GMQS Development Order accordingly. The proposed development has been granted 7,890 sf of commercial allotments, and is requesting an additional 2,097 sf. The allotments are available from the 2006 growth management year. Staff finds this criterion to be met. Exhibit A, Stage 3 Review Criteria Page 14 sea ll° DRC Comments 625 E Main Street (Stage 3) redevelopment Engineering Department Comments These comments are not intended to be exclusive, but an initial response to the project packet submitted for purpose of the DRC meeting. Drainage: The original approvals for Stage 3 included a green roof. The current proposal removes the green roof from the plan. The removal of this roof affects the not only the quality of the stormwater leaving the site but the quantity. To mitigate these impacts, the applicant must complete a drainage plan and report in accordance with the City's Urban Runoff Management Plan. The Engineering Dept, recommends that the Drainage Plan that meet the above requirements be approved prior to final plat or building permit submittal whichever comes first. Sidewalk and Curb and Gutter: Since the finished floor of the building is approximately 1.3 feet above the top back of curb, it proposes challenges in meeting the department's standards for accessibility and door swing clearance along Main Street. Plans that meet the dept standards must be submitted prior to council approval. Additionally structural soils will be required for the sidewalk to improve the growth area for the planting strip. Due to the condition of the curb and gutter that fronts the building, it will need to be replaced prior to CO of the building. Miscellaneous Construction Management — A construction management plan must be submitted in conjunction with the building permit application. The plan must include a planned sequence of construction that minimizes construction impacts to the public. The plan shall describe mitigation for: parking, staging /encroachments, truck traffic, noise, dust, and erosion/sediment pollution. Because this building is located in the commercial core, the encroachments that will be allowed will be limited to the off season, the dept recommends that the site use a tower crane to minimize the amount of encroachments. System Development Fee —The system development fee is $2.88 per square foot of impervious area. The fee is assessed against the total impervious area of the development, not simply the increased impervious area. Page 1 of 4 Fire Department Comments 1. The building will be required to have an NFPA 13 sprinkler system designed for the occupancy as well as a monitored fire alarm system meeting NFPA 72 requirements and our local amendments. We will be applying the 2009 edition of both of those codes to this project. 2. Further information regarding the parking structure is required. We would ask to meet with the developer to discuss access, ventilation, storage, sprinkler requirements, carbon monoxide detection/mitigation, etc. on that part of the project. Parks Department Comments 1. Planting in the Public Right of way will be subject to Landscaping in the ROW requirements. Improvements to the ROW should include new grass, irrigation and the applicant shall work with the Parks Department in order to design an appropriate trench box for the new tree plantings. Plans for the tree plantings should be completed and conceptually approved prior to City Council approval. The trench box or infrastructure for the sidewalk may require the use of new technologies which allow for structural support of a sidewalk and contribute to the growth and health of the tree roots. Tree plantings boxes are not approved for the landscaping in the right of way. Final layout and numbers of trees will be approved by the Parks and Engineering Departments. Parking Department Comments We would recommend that more of the off - street parking be designated to the residences than to commercial. Currently the residences have only half of available off - street parking spaces. No units in this development qualify for residential parking permits. Housing Comments The Housing Board reviewed the application at their regular meeting held February 16, 2011 and recommended approval of the application with the following conditions: 1. The mitigation with the two three - bedroom units has been satisfied. The units are to be ownership units sold through the lottery system after the initial sale. The additional conditions stated below shall apply: a. The developer shall have the right to sell to a fully qualified household of its choice for the initial sale only. The units shall be specified in the deed restriction at a Category 4 but sold for $305,000 ($15,000 under the maximum Category 4 sales price stated in the Guidelines). The qualified household must meet the minimum occupancy requirement Page 2 of 4 for the unit (a household of three with at least one dependent as defined in the Guidelines), no higher than a Category 4 as specified in the Guidelines, and a minimum work history in Pitkin County of four years prior to application. All other conditions for a qualified employee must be adhered to as well. b. Since the project is a mixed commercial /free - market/deed- restricted project, the assessments shall be determined as stated in #2 below and approved by APCHA. This language shall be required in the approval and in the Covenants associated with the project. No changes to this restriction would be allowed without APCHA's approval. 2. Research shall be done with lending institutions as to how the homeowners' association should be established such that the association documents do not prevent buyers of the deed - restricted units from qualifying for conventional financing, though APCHA acknowledges that Fannie Mae and Freddie Mac eligibility requirements may make conventional financing unavailable for reasons beyond the developer's control. The HOA shall be established based on lending practices and/or the governing documents will reflect the project as a mixed commercial/free- market/deed- restricted project. The assessments shall be based on the differential between the price values of the free - market component compared to the deed - restricted component. This language shall be required in the approval and in the Covenants associated with the project. No changes to this restriction would be allowed without APCHA's approval. Voting rights shall be based on one vote per unit. 3. A capital reserve study shall be completed by the developer. 4. The units shall be completed with a Certificate of Occupancy and be listed for sale at the initial price given above prior to the closing of any sale of a free -market unit. 5. The deed - restriction shall be recorded at the time of recordation of the Condo Plat and prior to Certificate of Occupancy. Aspen Consolidated Sanitation District (ACSD) Comments Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. On -site utility plans require approval by ACSD. Oil and Grease interceptors (NOT traps) are required for all food processing establishment. Locations of food processing shall be identified prior to building permit. Even though the commercial space is tenet finish, interceptors will be required at this time if food processing establishments are anticipated for this project. Oil and Sand separators are required for parking garages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shafts drains must flow thru o/s interceptor Page 3 of 4 Old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. Permanent improvements are prohibited in sewer easements or right of ways. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. All ACSD fees must be paid prior to the issuance of a building permit. Peg in our office can develop an estimate for this project once detailed plans have been made available to the district. The glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines. Page 4 of 4 Resolution #7 - 11 RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION APPROVING WITH CONDITIONS AN AMENDMENT TO A GROWTH MANAGEMENT DEVELOPMENT ORDER, TWO GROWTH MANAGEMENT REVIEWS, AND RECOMMENDING CITY COUNCIL APPROVE WITH CONDITIONS AN AMENDMENT TO A SUBDIVISION DEVELOPMENT ORDER, PLANNED UNIT DEVELOPMENT, AND REZONING FOR 625 E. MAIN STREET, LOTS E, F, G, EASTERLY 10 FEET OF LOT D, BLOCK 98, CITY AND TOWNSITE OF ASPEN, CO, PITIQN COUNTY, COLORADO PARCEL NO. 2737-182-02204 WHEREAS, the Community Development Department received an application from Aspen Main Street Properties LP, represented by David Johnston Architects, requesting approval of an amendment to a growth management development order, two Growth Management Reviews, an amendment to a subdivision development order, Planned Unit Development, and rezoning to construct a mixed -use building consisting of 9,988 sf of net leasable space, two affordable housing residential units, and three free -market residential units; and, WHEREAS, the subject property is zoned C -1 (Commercial); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during a duly noticed public hearing on March 8, 2011, the Planning and Zoning Commission approved Resolution No. 7, Series of 2011, by a four to zero (4 — 0) vote, approving an amendment to a growth management development order, two Growth Management Reviews for the development of a mixed -use building that includes commercial space, office space, free -market housing, and affordable housing, and recommending that City Council approve with conditions an amendment to a subdivision development order, Planned Unit Development, and rezoning for the property located at 625 E. Main Street, Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO; and, • WHEREAS, the Aspen Planning and Zoning Commission has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Planning and Zoning Commission finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Planning and Zoning Commission finds that this resolution furthers and is necessary for the promotion of public health, safety, and welfare. RECEPTION #: 578389, 03/16/2011 at Reso 7, Series 2011 03:41:03 PM, Page 1 of 7 1 OF 7, R $41.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION AS FOLLOWS: Section 1: Approval Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission hereby approves with conditions an Amendment of a Growth Management Development Order; a Commercial Growth Management Review; and a Growth Management Review for the development of affordable housing to construct a mixed - use building consisting of two (3) commercial units, one (1) office unit, three (3) free - market residential units, and two (2) deed - restricted affordable housing units on the property located at 625 E. Main Street, Lots E, F, G, easterly 10 feet of Lot D, Block 98, City and Townsite of Aspen, CO. Section 2: Plat and Agreement Pursuant to the procedures and standards set forth in Section 26 of the City of' Aspen Municipal Code, the Planning and Zoning Commission hereby recommends that City Council grant an Amendment to a Subdivision Development Order, a PUD, and a rezoning and that, should City Council grant said approvals approval, the Applicant shall record a Subdivision/PUD agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of such approval. A final Condominium Plat may be approved and signed by the Community Development Director upon substantial completion of construction. Section 3: Dimensional Requirements The project shall be subject to Aspen Municipal Code Chapter 26.575, Miscellaneous Supplemental Regulations and with the Commercial (C -1) zone district, in place at the time of land use application submittal in April 2006. Changes subsequent to issuance of a Certificate of Occupancy shall be subject to the Code in place at the time of proposed changes, with the exception of the size of the Free - Market units, and Free - Market Net Livable to Commercial Net Leasable Ratio as outlined in the table below. The Planning and Zoning Commission recommends that the three free - market residential units total 8,022 sf of net livable area. Dimensional Requirement Proposed Dimensional Requirements Free Market Net Livable Area (NLA): 8,022 sf Above -Grade Commercial Net Leasable Area Free- Market Net Livable to (NLA): 7,869 sf Commercial Net Leasable Ratio The ratio is not met by 153 sf (There is 153 sf more Free - Market NLA than Commercial NLA). Unit A. 2,658 sf Maximum Residential Unit Size (Sq. Unit B. 2,837 sf Ft.) Unit C. 2,527 sf (Total size: 8,022 sf) Reso 7, Series 2011 Page 2 of 7 In addition, the Planning and Zoning Commission recommends that the Applicant present a roof- top mechanical equipment plan to City Council as part of their PUD, Re- zoning, and Subdivision Amendment Review. The Planning and Zoning Commission recommends that, to the greatest extent reasonably possible, the height of the mechanical equipment be limited to five (5) feet above the building height, or to a total of 43 feet, and that the roof - mounted equipment be centered in the building. Section 3: Plat and Agreement Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission hereby recommends that City Council grant an Amendment to a Subdivision Development Order, a PUD, and a rezoning and that, should City Council grant said approvals approval, the Applicant shall record a Subdivision/PUD agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of such approval. A final Condominium Plat may be approved and signed by the Community Development Director upon substantial completion of construction. Section 4: Building Permit Application The building permit application shall include the following: a. A copy of the final Ordinance and P &Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. An excavation - stabilization plan, construction management plan (CMP), and drainage and spoils report pursuant to the Building Department's requirements. The CMP shall include an identification of construction hauling routes, construction phasing, and a construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. The construction management plan shall also identify that the adjacent sidewalks will be kept open and maintained throughout construction, that landscapings, plantings and amenities on adjacent property will be protected, and that construction parking will not encroach on private property. e. Accessibility and ADA requirements shall meet adopted building code requirements. f. An approved Landscape Plan Section 5: Trash/Utility Service Area The trash containers shall be wildlife proof and meet the regulations pertaining to size and security. Section 6: Sidewalks, Curb, and Gutter The finished floor of the building is approximately 1.3 feet above the top back of curb, it proposes challenges in meeting the department's standards for accessibility and door swing clearance along Main Street. Plans that meet the Engineering Department's standards regarding accessibility must be submitted prior to council approval. Additionally structural soils will be required for the sidewalk to improve the growth area for the planting strip. Due to the condition of the curb and gutter that fronts the building, it will need to be replaced prior to CO of the building. Reso 7, Series 2011 Page 3 of 7 All improvements shall be made prior to a Certificate of Occupancy on any of the units within the development. Section 7: Affordable Housing 1. The mitigation with the two three - bedroom units has been satisfied. The owner shall convey an undivided 1 /10 of 1% ownership interest in the lot on which the units are situated to APCHA. The APCHA ownership interest shall be in perpetuity or until such time as the units are converted to ownership units, or the statutory restriction on rent control units is eliminated. The units are to be ownership units sold through the lottery system after the initial sale, subject to the following conditions: a. The developer shall have the right to sell to a fully qualified household of its choice for the initial sale only. The units shall be specified in the deed restriction at a Category 4 but sold for $305,000 ($15,000 under the maximum Category 4 sales price stated in the Guidelines). The qualified household must meet the minimum occupancy requirement for the unit (a household of three with at least one dependent as defined in the Guidelines), no higher than a Category 4 as specified in the Guidelines, and a minimum work history in Pitkin County of four years prior to application. All other conditions for a qualified employee must be adhered to as well. b. Since the project is a mixed commercial/free - market/deed- restricted project, the assessments shall be determined as stated in #2 below and approved by APCHA. This language shall be required in the approval and in the Covenants associated with the project. No changes to this restriction would be allowed without APCHA's approval. 2. The units shall be completed with a Certificate of Occupancy and be listed for sale at the initial price given above prior to the closing of any sale of a free - market unit. 3. The deed - restriction shall be recorded at the time of recordation of the Condominium Plat and prior to Certificate of Occupancy. 4. Each Affordable Housing Unit shall be assigned as least one (1) parking space in the sub -grade garage. Section 8: Water Department Requirements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. Section 9: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. Reso 7, Series 2011 Page 4 of 7 On -site utility plans require approval by ACSD. Oil and Grease interceptors (NOT traps) are required for all food processing establishment. Locations of food processing shall be identified prior to building permit. Even though the commercial space is tenet finish, interceptors will be required at this time if food processing establishments are anticipated for this project. Oil and Sand separators are required for parking garages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shafts drains must flow thru o/s interceptor • Old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. Permanent improvements are prohibited in sewer easements or right of ways. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. All ACSD fees must be paid prior to the issuance of a building permit. The glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines. Section 10: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 11: Landscaping Planting in the Public Right of way will be subject to Landscaping in the ROW requirements. Improvements to the ROW should include new grass, irrigation and the applicant shall work with the Parks Department in order to design an appropriate trench box for the new tree plantings. Plans for the tree plantings should be completed and conceptually approved prior to City Council approval. The trench box or infrastructure for the sidewalk may require the use of new technologies which allow for structural support of a sidewalk and contribute to the growth and health of the tree roots. Tree plantings boxes are not approved for the landscaping in the right of way. Final layout and numbers of trees will be approved by the Parks and Engineering Departments prior to issuance of building permit. The walkway located on the western property line, and approved in Ordinance 41, Series of 2006, remains a requirement. Reso 7, Series 2011 Page 5 of 7 Section 12: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee prior to building permit issuance. The fee shall be calculated according to the fee schedule in Land Use Code Section 26.610.030, Fee Schedule. Section 13: Pedestrian Amenity Cash -in -Lieu Fee Pursuant to Land Use Code Section 26.575.030, Pedestrian Amenity, the Applicant shall pay a cash -in -lieu fee for pedestrian amenity in the amount equal to ten percent of the lot area prior to building permit issuance. The fee is assessed based on the following calculation: Lot area = 10,000 square feet 10% of Lot Area = 1,000 square feet Payment = $50 x 1000 square feet Pedestrian Amenity Cash -in -Lieu = $50,000, Section 14: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay a fee -in -lieu of land dedication prior to building permit issuance. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the market value of the land including site improvements, but excluding the value of structures on the site. Section 15: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 16: 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. Section 17: 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 Planning and Zoning Commission of the City of Aspen on this 8th day of March, 2010. Reso 7, Series 2011 Page 6 of 7 APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: ity Attorney Stan Gibbs, Chair ATTEST: ackie Lothian, Deputy City Clerk Reso 7, Series 2011 Page 7 of 7 5 om\or.„---t- • a City Planning & Zoning Meeting — Minutes — March 08, 2011 Comments 2 Minutes 2 Conflicts of Interest 2 131 Midland Ave — Residential Design Standard Variance 2 625 E Main St —(Stage 3) PUD 6 1 City Planning & Zoning Meeting— Minutes — March 08, 2011 sense the code was overly biased against modern desigp* it'doesn't mean that you c o a modern design and meet the code; therts ere other statements made that there we 'te specific constraints. Gibbs sattwe have heard enough given this design; we cou a them change it but what we see here and the effort they have made to comply; is"this were " sitting with a bunch of Victorians that would be different than the eclectic giborbood. Gibbs said he would approve both variances. Myrin sai his too much building for the site that is here; if the building was h e size or without a garage a let could be accomplished. Myrin said there nothing that talks about the building milst =fill the entire site or max out t AR or must have a garage; it would be appropriate off it iffier lot. Myrin said from what the code said he didn't see what staff recommended wa denial on the front door. PUBLIC HEARING: 625 E Main St — (Stage 3) PUD Stan Gibbs opened the public hearing for 625 East Main Street, Planned Unit Development. Jessica °arrow said the building was commonly known as the Stage 3 Building and Jeff Cardot, the new owner and Adam Roy with David Johnston Architects were present. There are 6 reviews in front Planning & Zoning Commission and they are to amend the Growth Management new review for the Free - market, Affordable Housing and Mixed Use Development; recommendations to City Council on the Amendment of Subdivision, Planned Unit Development and Rezoning. Garrow said this project was approved in 2007 and is vested and being reviewed under the 2006 code. The proposal is to amend the internal make up of the building and decreased in size by about 19% and rooftop deck and green roof have been eliminated. Garrow said by eliminating the rooftop deck the full height access stairs and elevator can be removed from the roof. The garage will have 13 parking spots in the basement and 3 on the outside of the building; the storage space in the basement is being converted to the Commercial Use of 2,118 square feet. There changes on the first floor have slightly more space; the second floor has a slight increase of office space. Instead of having 5 free - market units there are 3 two bedroom units; the density of the project is increasing. Staff is recommending approval of the Growth Management requests for the net increase in commercial square footage and the amendment for the Growth Management in order to decrease the density of the project and the use mix proposed. Garrow said the applicant has requested a PUD in order to enable the net livable space in those free - market units. So in 2006 there was an emergency ordinance 6 City Planning & Zoning Meeting — Minutes — March 08, 2011 passed that limited all commercial zone districts to 2,000 square feet net livable for each free - market unit; that was passed for 2 reasons. Garrow said the first was density and lights on community in the downtown and the second reason was to encourage multiple ownership of buildings and maximize multiple uses in the building; there was a concern at the time that someone would be able to just buy a building and convert it to one very large residence. There is still a 2,000 square foot cap but now you can exceed that and go up to 2500 square feet with the landing of a TDR; that was done partially to bolster the TDR program and to help incentivize the use of TDRs. Garrow said the applicant is requesting the 3 free - market units and the unit sizes they are requesting are 2,527, 2,658 and 2,837 net livable square feet; they all exceed the 2500 that is allowed under today's code. Staff is recommending approval of the project with units capped at 2,000 square feet with the ability to reach 2500 with a TDR. The projects in the vicinity of this all have around 2,000 square feet of net leasable space. Garrow said there is this commercial to free - market ratio that was in the code in 2006 but at the Council table a lot of changes were happening so there is a discrepancy between net leasable and commercial. Garrow said the new proposal has 153 square feet more net livable than there is in commercial space and staff recommends that be memorialized in the PUD. There were 4 motions on page 10 and 11 of the memo and the final motion is what the applicant was requesting, which is the approval to build the 3 free - market units totaling 8,022 square feet without the use of TDRs and they are requesting to do that through the PUD process. Garrow entered into the record some letters that all were in favor of the project from Junee Kirk, Philip Rothblum and Jurine Biers. Bert Myrin said that this was opening a PUD process. Jessica Garrow said there are PUD criteria in the packet page 18. Cliff Weiss asked about cash -in -lieu for the public amenity space was for 1,000.00 square foot and they have completely eliminated all of the public amenity space. Garrow replied that the public amenity space has changed so they are required to pay the fee. Stan Gibbs asked where the current application was exceeding the original approval in a negative sense relative to the code. Jessica Garrow replied the size of 7 City Planning & Zoning Meeting — Minutes — March 08, 2011 the overall building has gone down; the only difference is the size of the free - market units. Gibbs said that was all internal. Garrow stated the overall project went from accumulative floor area 2.54:1 and it is now 2.36:1. Gibbs asked what the original free - market space was; he came up with 8,369 from the table on page 5. Garrow said the original approved free - market space was 8,369 square feet and today the net livable space has decreased. Weiss asked where did the decrease come from. Garrow replied the applicant would address that. Adam Roy introduced JeffCardot, the owner of the project. Roy thanked Jessica and Community Development for getting the project back but the new project is definitely an improvement and better solution that the original one approved. Roy displayed a vicinity map which is on Main Street across from the Concept 600 building. Roy explained the former project which was a concierge type and qualities for second homeowners with valet parking and a high density, high impact use but not fractional ownership but that style of ownership. There was also a contentious roof top party deck for the free - market owners. Roy showed a drawing showing it was a zero lot line project; all cars were loaded through an auto elevator in the back of the building; 10 of the parking stalls were parked via hydrolytic lift; there would be cars stacked up in the alley and the second floor had smaller units; the third floor had small decks. Roy said the site plan will remain the same and they are currently working with Engineering and Parks to reconfigure this planning strip out front at their request and those adjustments will be figured out prior to any hearing in front of Council. The garage has 13 parking spots and all of the hydrolytic lifts and the previous storage area be converted into commercial use space. Roy said on the second level the primary goal was to clean up the floor plan and reduce the density; they also included some decks off the back and to answer the question of how we reduced density was through decks and circulation space in the core of the building. They have converted the affordable housing units into 2 very generous three bedrooms, three bath units accessed by elevator and stairs and have a rear access through a mud /laundry room. These affordable housing units are 1,425 and 1,350 square feet of net livable square feet, which exceeds the mitigation purposes. The third level has been set into the building with a net decrease of 1,619 square feet. The elevator bulkheads will be eliminated from the rooftop and the overrun will be well within the 42 foot height restriction; the mechanical will be recessed in the middle of the building. 8 City Planning & Zoning Meeting — Minutes — March 08, 2011 Roy showed the height reduction of the building showing the top of Stewart Title and the majority of the Little Nell Ski run, which is shown from the Concept 600 building third floor. Roy said they feel this is an improvement to the building as a whole as it relates to the general public at large, the public well being and protect public welfare. Roy said the building height was reduced by 5 feet or more, the building setbacks off the alley are about 20 feet, this reduces the mass and scale of the building, the total FAR will be reduced by approximately 2200 square feet, the density is dropping from 10 total units to 5, reducing onsite parking from 26 to 16, eliminating the hydrolytic parking in the underground garage. The total free - market net livable area is decreasing by nearly 350 square feet. Jeff Cardot discussed his process buying the project in an auction format in September 2010 and really wasn't sure what he was going to do with the property. Cardot said to try and utilize the current entitlements; it doesn't make any sense to make a concierge type of building because it would have no vitality. Cardot reached out to the neighbors that fought it the most and said this is what I am thinking about doing; working on the height, scale and density. Cardot said he wanted to make this a better project for the community and neighbors. Cardot said he hoped that the TDRs and the 2,000 square foot cap wasn't as important as building a better building for Aspen. Jim DeFrancia asked with the reduction of spaces in the garage will it be a drive in and park yourself. Cardot replied that due to the fact that the foundation was done and 18 feet deep and to do a conventional ramp would basically take the whole thing up so they are using the auto elevator. There was reduced storage and it will be replaced with Commercial and the storage will go above the parked cars. DeFrancia asked if the cars required an attendant. Cardot replied it would be individually operated. Weiss asked what categories were the affordable housing units. Garrow replied category 4. Stan Gibbs asked why 16 parking spaces. Roy responded that it was specific to the commercial space; the more we can provide commercial space for the commercial tenants. Gibbs asked what kind of commercial do you do in a basement. Roy said there were a variety of options from a conference center, presentation room or a space that was commercial but not retail. Cadot said or simply cheaper commercial space. 9 City Planning & Zoning Meeting — Minutes — March 08, 2011 Weiss asked Jeffrey what he meant by the TDRs not making sense; financial sense or development sense. Cadot replied financial sense. DeFrancia asked if the TDRs could be waived. Garrow replied yes that was one of the alternative motions that you have. Public Comments: 1. Paul Taddune said he represents the Hunter Square Building immediately adjacent on the east and it is not typical for a client to come and support a project so this is a little unique. Taddune said that his client was Jurine Biers and read the letter that she submitted in favor of the project. 2. Pat Alhouse said she lived in Concept 407 and was in favor of the project; it minimizes the hugeness of a badly designed building. #2 the fact that Aspen's core has lost population for the prices of huge homes and also the employee housing is usually very small and not designed with families in mind. This man wants to bring up his family in our city; this makes vitality in the community. #3 when has a person come to P &Z to decrease in size a project, especially a project that everyone was originally dissatisfied with; we have a great opportunity to correct a huge problem. #4 I have personally met Jeff and my first statement to him was if you do what you are going to do I will support you. He has come back with various meetings. #5 please approve this new project so it can go to City Council. 3. Dick Copet 407 Concept 600 said this was a huge opportunity to correct something that really misfired a few years back. He really appreciated that this meeting was moved up to accommodate them. 4. Bob Borchers said he was Unit 208 Concept 600 and most of the pictures you saw were from the fourth floor; from the second floor it looks a little different. Any help in the reduction we welcome and he said this was a great addition for the town of Aspen and be able to get through this project as soon as possible will be a great enhancement for the city. 5. Lindsey Smith said that Jeff Cardot was a breath of fresh air not only for the 600 block of East Main Street but just for the community for what he is trying to do. He has gone out of his way to bring this building into what the neighborhood wanted and that was never the case before. He has met with us every time we have asked him; he brings the drawings and she did not want P &Z to miss this opportunity to get a neighborhood approved building and looked forward to approval tonight. 6. Patsy Hicks said that she lived in Honolulu and she would love to have more developments like this that favor family; we are really in favor of all that Jeff is doing and hope that you will move it through very quickly. 10 City Planning & Zoning Meeting — Minutes — March 08, 2011 7. Jim Smith said that he lived in Concept 600 as well and the entire city is impacted by this building; the original building that was approved was bad for the neighborhood and bad for the city as well. Smith said when Jeff bought the building he realized as he has told you he could build a better building and Jeff talked to the neighbors and looked for the input and asked for changes that we would support. Like we have said this building adds true vitality to the city giving families an opportunity to live in town. Smith said that asking Jeff to pay more money by asking for TDRs to make a much better building and he suggested that P &Z send this project forward to Council. We should not let the perfect be the enemy of the good and we ought to go forth with this project. Stan Gibbs closed the public comment section of the meeting. Commissioner Comments: Jim DeFrancia stated that they have done a great job; it is clear from listening to the neighbors that you have addressed their concerns and the building seems appropriate for the neighborhood. DeFrancia said the quicker we can move the better and asked Jeff if his intent was to start building as soon as you get through City Council. Jeff Cadot replied absolutely. DeFrancia said for the improvements that have been made and the reduction in the character of the building and other adjustments; it was appropriate for P &Z to waive the TDRs. Bert Myrin asked if the final approval will eliminate the prior approvals. Jessica Garrow replied when there is final Council action that will vacate the prior approvals; the vested rights are until June. Myrin asked about the memo mentioning the owners select the first affordable housing residents, is that typical. Garrow replied that happens sometimes; in the Aspen Club project the applicant requested that as well at that time; the condition that the housing board requested was that if it was purchased by a second person then it goes through the regular options. Myrin asked the height of the building as was presented tonight of the actual structure and mechanical. Garrow replied that it was varying in height along Main Street 36 '/ to 37 '/z feet with the plans that we have. Myrin asked if it was 38 feet. Roy replied that or lower. Myrin asked if a 5 foot limit above 38 feet for mechanical make sense; it seems like the same for the rules and the only thing that has changed is your starting point because it is the rooftop. Roy said he just didn't know. Garrow said that part was a dimensional requirement and they were varied through the PUD process; that can be included in a recommendation. Myrin asked about parking spaces for the affordable housing units. Roy replied that they were 11 City Planning & Zoning Meeting — Minutes — March 08, 2011 giving indoor parking spots to the two affordable housing units as well as the storage unit above. Cliff Weiss said that TDRs are for the whole community from his perspective; to move development from out of the back country and into urban areas. Weiss said they were not designed to make your project more profitable. Weiss said that fixing this project which was an eyesore from the get go affects the whole community and how you have Leaned over backwards to appease your neighbors and the fact that you are going to live there is good. Weiss asked how many kids did he have. Cadot replied 2 right now. Susan from Hunter Square showed photos of Jeff's children to the commission. Weiss said that Jeff gave him the thing that he hated most, Jeff took away those elevators. Weiss said that he could support this with the fact that you are going to be part of the community. Stan Gibbs said the reason that the rooftop mechanical is something of an issue with most of the commissioners is because they had another experience with another building in town; by the time the project got built there was this lump of development right at the edge of the building on the roof and is very ugly. Gibbs said there was no other place to put the mechanical for that project so you can understand the sensitivity the commissioners have to such a situation. Gibbs said as part of the resolution to Council is that they take a very hard look at the mechanicals on the roof, if there is not a significant attempt to the height and location at least it will be somewhat reduced to the neighbors. Gibbs said he would be in favor of seeing something in a resolution that addresses that particular point; it was a negative thing to have to go through before and that we don't get a chance to look at before. The free- market units slightly larger without TDRs are interior to the building. MOTION.: Jim DeFrancia moved to continue 5 minutes, Stan Gibbs seconded. All in favor, APPROVED. MOTION: Jim DeFrancia moved to approve Resolution #7, series 2011, approving with conditions the amendment of growth management development order, commercial and affordable housing growth management review that the City Council approve with conditions the amendment to a Subdivision Development order, a PUD to allow 3 free- market units greater than 2500 square feet without the use of TDRs for the property located at 625 East Main Street; with the additional conditions of one assigned indoor parking space for each affordable ordable housing unit, rooftop mechanical is at a maximum of 5 feet above the presentation tonight and as located as close to the interior of the building as possible. Bert 12 City Planning & Zoning Meeting — Minutes — March 08, 2011 Myrin seconded. Roll call vote: Weiss, yes; Myrin, yes; DeFrancia, yes; Gibbs, yes; APPROVED 4 -0. Discussion prior to the vote: Bert Myrin amended the motion to include one assigned parking space for each affordable housing unit; Jim DeFrancia accepted that amendment. Myrin said the second amendment was the rooftop mechanical is at a maximum of' 5 feet regarding the presentation that we have seen tonight. Stan Gibbs said and located as close to the interior of the building as possible. DeFrancia accepted those amendments. Adjourned at 7:15 pm. kie Lothian, Deputy City Clerk 13 MAI 01 A PLANNING + DEVELOPMENT NO. 02 DATE April 1, 2011 BY Adam Roy TO Jessica Garrow, City of Aspen Community Development CC Jeff Cardot PROJECT 625 East Main Street SUBJECT Updated design material for Council review and hearing Dear Jessica: The purpose of this memorandum is to respond to the various conditions recommended through the Planning and Zoning Commission's Resolution ( #7 -11) approving the PUD designation and the associated amendments of this application. Specifically, Section 3: Dimensional Requirements, Section 6: Sidewalks, Curb, and Gutter, Section 11: Landscaping, and Section 13: Pedestrian Amenity Cash -in -Lieu Fee of the Resolution will be further elaborated upon as well as new design material presented and discussed. It is acknowledged through this memorandum that the applicant is in agreement with each of the requirements and conditions described in the remaining sections of the Resolution. All standards and methods are based on the 2006 City of Aspen Land Use Code (the "2006 Code "). Section 3: Dimensional Requirements: In accordance with the Commission's recommendation, a roof plan of the building is attached to this memorandum as Exhibit 1. The roof plan identifies the location of all mechanical equipment as well as a screening parapet wall that is located internal to the face of the primary facades of the building. All mechanical equipment is located to the center of the building relative to the north and south facade lines. No mechanical equipment will extend above the recommended forty-three (43) foot height limit as measured per Section 26.575 of the 2006 Code. The parapet wall required by Code for mechanical screening purposes is recessed from the primary north and south facade lines of the building and will not extend above the forty -three (43) foot height limit recommended by the Commission. In 2006 the C -1 base zone district allowed for a maximum building height of forty -two (42) feet. Exhibit 2 attached to this memorandum represents the primary north and south building elevations that are in compliance with the approved and currently active building permit for the property. The maximum height of the building, as indicated on the elevations, has been determined to be thirty -eight (38) feet six (6) inches as measured per Section 26.575 of the 2006 Code. The height of the primary roof structure of the building has been determined to be thirty -seven (37) feet two (2) inches as measured per Section 26.575 of the 2006 Code. DJA PLANNING + DEVELOPMENT NO 02 PROJECT 625 East Main St SUBJECT Updated design material Section 6: Sidewalks, Curb and Gutter: In accordance with Design Review Committee comments from the Engineering and Parks Departments, a new sidewalk improvement plan has been created through a coordinated design effort with the Engineering and Parks Departments. Exhibits 3 -8 attached to this memorandum illustrate the final solution for the sidewalk and tree planting strip plan. Engineering and Parks have received and reviewed the updated design will be submitting comments to Community Development. Section 11: Landscaping: In accordance with Design Review Committee comments from the Engineering and Parks Departments, a new landscape and tree planting plan has been created through a coordinated design effort with the Engineering and Parks Departments. Exhibits 3 -8 attached to this memorandum illustrate the final solution for the landscaping and tree planting strip plan. Engineering and Parks have received and reviewed the updated design will be submitting comments to Community Development. Section 13: Pedestrian Amenity Cash -in -Lieu Fee: Per the requirement for the issuance of any building permit, the pedestrian amenity cash -in -lieu fee in the amount of $50,000.00 was paid for this project at the point of issuance of the building permit currently active for this property. Please let me know if you have any questions or need any clarifications. Sincerely, Ada-- C, Adam C. 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C1111 /1 2 b 0 2 NI co l ib w p tg 4 i 2 4,0 8.1ai DIA PLANNING + DEVELOPMENT NO. 03 DATE April 4, 2011 BY Adam Roy TO Jessica Garrow, City of Aspen Community Development CC Jeff Cardot PROJECT 625 East Main Street SUBJECT Financial assurance agreement Dear Jessica: The intention of this memorandum is to address the financial assurances the new Owner of the property at 625 East Main Street (the "Property "), 625 Main Aspen LLC (the "Owner "), is offering to put forth in order to assure to the City that the 625 Main Street redevelopment (the "Project ") will be fully completed as proposed and in a timely manner. The assurances offered are intended to convey the financial capability of the Owner to deliver upon the proposed scope and schedule of the project. The current Owner has acted in good faith in acquiring the property in an effort to complete this partially built project that has been sitting idle for more than two years. The Owner has worked closely with the Community Development Department in finding an effective and satisfactory solution for recommencing construction on the stalled building. Because the project stopped as a result of the challenging economic conditions that affected not only Aspen but the entire country, many changes to the general scope and especially the funding of the construction have been required to be implemented. Institutional lending practices for all commercial and speculative real estate development have effectively disappeared, and therefore a major consideration in moving this project forward is that it must be completed without the typical practice of leveraging private equity with debt from an institutional lender. The result of this situation is that the Owner will be solely responsible for financing the project through completion, a condition that in itself serves as an assurance, in that the Owner is directly disincentivized to leave the project uncompleted. All public infrastructure associated with the property including all utilities have been completed or installed, and all major foundation work is in place and structurally sound. As a result, no major physical impacts will be placed upon the public right -of -way or public property in general. Construction of the sidewalk area within the public right -of -way to the north of the property has yet to be completed. In effect, all construction aside from the sidewalk area will take place within the boundaries of the private property. The Owner acknowledges that the City of Aspen's current practice of requiring financial assurances, bonding and escrowed moneys for the purposes of seeing projects through to their completion is the result of very DMA PLANNING + DEVELOPMENT N0. 03 PROJECT 625 Fast Main. St SUBJECT Financial assurance large and publicly impactful projects that have been proposed over the past few years. It is further acknowledged that the scope and financial requirement to see through the remaining construction associated with this proposed project are relatively minor in comparison to other much larger projects that have been reviewed and/or approved before City Council. Finn nciial Assurances: For the reasons stated above — specifically that the project will be executed with unleveraged funds, the remaining scope and financial requirement of the project are relatively small, and that no major impact or disturbance of public property is required —the following financial assurances are being offered by the Owner to the City of Aspen: 1. The Owner commits and agrees that before a Building Permit is issued for any phase associated with the continuation of construction for the project at 625 East Main Street by Ordinance, the Owner shall provide to the City Building Department and the City Attorney for review and approval satisfactory evidence that the Owner has in place sufficient financing to accomplish and complete the construction related to the Building Permit being sought, including all private and public improvements covered by the Building Permit, and all public improvements required under the Subdivision /PUD Agreement. 2. Supporting cost estimates for all improvements covered by the requested Building Permit shall be prepared by the Owner's General Contractor and shall be delivered to the City Building Department for review and approval before the Building Permit is issued. 3. A Certificate of Occupancy (CO) or a Conditional Certificate of Occupancy (CCO) shall not be issued for the project until the public improvements associated with the sidewalk area to the north of the property and any other additional public improvements that are required under the new Building Permit have been completed. The Owner and I would be happy to discuss these terms further with you. Please let me know if you have any questions or need any clarifications. Sincerely, Ad� C Adam C. Roy Page 2 t%a. MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney FROM: Chris Bendon, Community Development Director RE: Appeal of Land Use Code Interpretation — Floor Area DATE: April 25, 2011 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 the Director provide a written interpretation and affords an applicant the right to appeal the decision to the City Council. There are three criteria upon which the City Council has to decide an appeal of a code interpretation. Based solely upon the record established by the original decision, the City Council shall consider whether: 1) There was a denial of due process; 2) The administrative body exceeded its jurisdiction; or, 3) The administrative body abused its discretion. These standards ask whether the Director's actions were ethical. The City's code states that the decision or determination made by the administrative officer shall not be reversed or modified unless there is a positive finding on one of these criteria. (Please see Exhibit D for the entire code section.) Staff believes the Director's interpretation was rendered ethically and that an abuse of discretion did not occur. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. If the Council finds the Director abused his discretion in rending this interpretation, the Council may remand the interpretation back to the Director for reconsideration (with or without direction) or may reverse the interpretation in a manner that cures the abuse. CODE INTERPRETATION VS. 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? 1 BACKGROUND: Some background on the properties is helpful in understanding the code interpretation. Lots 1 and 2 of the Hill House condominiums appear on a condo plat as two distinct separate fee simple parcels. These parcels in fact are owned in a condominium form of ownership possibly requiring the condominium association be the applicant for any land use application. The 707 Associates property is a fee simple property separate from the Hill House Condominiums. Several years ago a lot line adjustment plat was submitted by the owner of Hill House Lot 2 and the owner of 707. This is an administrative process allowing staff to approve minor changes to lot boundaries. The application was accepted and eventually approved by the City Community Development Department. This moved the lot boundary between these two properties. The owner of Lot 2 then tLro expanded his house by using land recently acquired \�- N from the 707 parcel. The owner of Hill House Lot 1 � C jBS later sued the owner of Lot 2 over the lot line it adjustment and prevailed in _ l $ court. , The Court determined that r A «' FE the City should not have \ accepted the lot line y a, application as it did not 16�:[ include the owner of Hill °""` House Lot 1 and approval or consent from the Hill r � House home owners — — association was not / Figure 1: Hill House Condominiums represented. OCLALWA FLATS ADD !(W The District Court vacated the lot line adjustment plat returning the lot boundaries to where they were previously. The recently expanded house on Lot 2 now straddles the lot line and is partially on the 707 property. This obviously presents some ownership and physical trespass issues between the owners of Lot 2 and 707. This also presents a floor area question as a portion of the Lot 2 house falls on the 707 parcel. 2 INTERPRETATION: This interpretation addresses how Floor Area is attributed when a structure spans a lot boundary. The language of the code under discussion is as follows: D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building or portion thereof. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior- mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) [emphasis added] Staff's interpretation of the language finds that the floor area of a structure is attributed to the parcel upon which it physically exists. In this case, the portion of the Lot 2 house that physically exists on the 707 parcel is counted as floor area for the 707 parcel. The interpretation provided by staff is attached as Exhibit A. The appellant would like the above language to result in the City assessing the floor area of the encroachment to the parcel upon which the majority of the encroaching house exists, not where it physically rests. Alternatively, the appellant requested some administrative swap of development rights. A more detailed explanation from the appellant is in Exhibits B & C. STANDARDS OF REVIEW: 1. Due Process — With respect to due process, staff of the Community Development Department responded to the interpretation request in accordance with the procedure outlined in the Land Use Code. There were some preliminary conversations, as typical with any discussion of the meaning of the Land Use Code. A written interpretation was provided after staff received a formal written request in a compete application. Some delay in issuing the interpretation occurred to accommodate the applicant's request to discuss the matter with staff. 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. Staff believes that proper due process has been provided to the appellant. The appellant is not claiming a procedural defect with the interpretation. 3 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 26306." Staff believes this language is clear and it does not appear that the applicant is questioning this provision of the code or the Director's jurisdiction. 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. The appellant is claiming the Director abused his discretion. [Note: it's helpful to read the staff interpretation, the letter requesting the interpretation, and the appeal letter to provide context to the following discussion — Exhibits A, B, & C.] A decision may be considered 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. In other words, when a decision is so baseless that it can only be described as random or made -up. The staff interpretation highlights the first sentence of the Floor Area section of the code — Floor area shall be attributed to the lot or parcel upon which it is developed. The appellant's argument pivots on the word `developed,' implying that this term is in the past tense and floor area should be attributed to the parcel upon which it was developed. Staff's interpretation explains that floor area depends on where a structure is developed — in the present tense. The appellant highlights this point on page three of the appeal letter: Mr. Haas states, "The code actually says that the floor area shall be attributed to the lot or parcel upon which it is developed. When Mr. Weiner built that addition to his home, all of the floor area was developed on what was then considered his lot/parcel. Due to a Court decision, a portion of Mr. Wiener's house now `rests' on the adjacent property, but it was not developed on that property." [emphasis added by staff] Staff believes the calculation of floor area is a matter of what is and not about what was. The amount of floor area built on these parcels used to be something other than what it is today. The court returning the lot line to its previous location changed the situation. And, the floor area of the parcels today is what it is today, not what it was in the past. The appellant takes issue with staff using the word "rests," stating that using this word was an abuse of discretion. "Rests" was used to help clarify the meaning of the provision in question. Staff used "where it rests" as an equivalent to "where it is developed." 4 The Director considered the meaning of the phrase "where it is developed" within the context of the City's Land Use Code and more specifically within the context of the section of the code that explains how floor area is measured. This section includes the phrase "the building or portion thereof" indicating that a fraction of a building can be measured as floor area. These phrases are cited in the interpretation as foundation. Staff believes "Where it rests" is a suitable approximation of "where it is developed" that addresses any ambiguity of tense. Staff could have also used where it exists, where it sits, where it lies, or where it is situated to illustrate "where it is developed" as a physical position in the present tense. Staff believes this provides a basis in reason. The appeal letter speaks to adversity these neighbors have experienced, the history of the lot line, etc. Again while staff is sympathetic to the situation, staff does not believe the meaning of the Land Use Code is affected or should be changed through interpretation to accommodate a specific situation. If anything, basing a decision on sympathy for this situation could be considered an abuse of discretion. Likewise, the appeal letter goes on about other odd situations that could occur with buildings partially in alleyways, etc. This is fundamentally an argument about how the code should say something different than it does today. While staff may agree, an interpretation of the code is about what the code actually says, not what it should say. There can be simultaneous agreement on what a code says and that it should be changed. But basing an interpretation on a desire to change the code is tantamount to amending the code through interpretation — something staff believes would be improper and potentially in excess of the Director's jurisdiction. Lastly, the appeal letter raises a new issue — that the interpretation effects a change in the development rights of these two properties. It does not. This is a strange argument in that the applicant originally requested the Director decree a transfer of development rights between the properties by virtue of a structure spanning the lot line. The Director's interpretation provided that an intervening structure does not change the development rights of the properties. The interpretation that the development rights are not affected by a building encroachment generated the appeal. As this is a new issue, staff does not believe the interpretation represents an abuse of discretion on this point. RECOMMENDATION: The background of this situation is unfortunate and staff sympathizes with the parties. Fundamentally, staff sees this as an issue of trespass between two neighbors. This is relatively common in Aspen and a matter for the neighbors to resolve. There are existing systems to resolve the financial impact of the trespass such as the City's TDR program or a simple monetary exchange. As one of the properties is owned as a condominium, the resolution may require the consent of the condominium association. 5 To the extent the property owners cannot agree on a resolution it could become a civil matter for the Courts to resolve. To the extent that a resolution requires a land use application be submitted to the City, the City will require all affected parties be active applicants — namely the owners of Hill House Lot 1, Hill House Lot 2, and 707 Associates. Furthermore, staff does not support a code amendment to resolve trespass issues. Staff believes private agreements are more effective at resolving these issues than government could ever be. But, to the extent that the code is amended in the future to permit an exchange of development rights between adjacent properties, staff strongly believes the City should require all affected parties be active applicants to ensure rights are observed and due process is provided to the parties affected by such an application. Staff believes the Director's interpretation was rendered ethically and that an abuse of discretion did not occur. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. If the Council finds the Director abused his discretion in rending this interpretation, the Council may remand the interpretation back to the Director for reconsideration (with or without direction) or may reverse the interpretation in a manner that cures the abuse. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions should be made in the positive) "I move to approve Resolution No. , Series of 2011, affirming the Community Development Director's interpretation of the Land Use Code regarding floor area." ATTACHMENTS: Exhibit A — Interpretation dated March 9, 2011 Exhibit B — Request for Code interpretation from Mitch Haas dated February 1, 2011 Exhibit C — Appeal letter from Mitch Haas dated March 28, 2011 Exhibit D — Land Use Code Section Regarding Appeals Exhibit E — Affidavit of notice 6 RESOLUTION NO. 31 (SERIES OF 2011) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING FLOOR AREA OF A STRUCTURE SPANNING A PROPERTY BOUNDARY. WHEREAS, the Community Development Director received a request for a interpretation of the Land Use Code regarding the calculation of floor area for a structure spanning a property boundary from the owner of 707 Gibson Avenue represented by Mitch Haas; and, WHEREAS, pursuant to Chapter 26.306 — Interpretations of Title, the Director rendered a decision on March 9, 2011, 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 the appellant, 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 of a structure spanning a property boundary issued March 9, 2011. 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 , 2011. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: John Worcester, City Attorney Resolution No. , Series of 2011. Page 1 CITY OF ASPEN kph COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTION: 26.575.020.D — Floor Area for a building spanning two lots. EFFECTIVE DATE: March 9, 2011 WRITTEN BY: Chris Bendon, Community Development Director APPROVED BY: Chris Bendon, Community Development Director Section 26.575.020 of the City's Land Use Code describes the methodology for measuring various aspects of development within the City. You have requested an interpretation regarding a house that is built partially onto an adjoining lot and the way the City calculates Floor Area in such a situation. Subsection D describes the way floor area is measured and reads as follows: D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building or portion thereof. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior- mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) (emphasis added] There are several additional subsections (2 -15) under "measuring floor area," but none of them speak to a building spanning a lot boundary. According to the cited language, the floor area of a structure is attributed to the parcel on which it rests. If only a portion of a structure rests on a property, then that portion is attributed to that lot. This does present some logistical issues for measuring the improvements. I suggest you use the property boundary as an "exterior wall" to determine the portion of the building lying on each lot. In your letter, you cite various historical issues with the properties owned by Young and Weiner. I understand the ramifications the court decision to vacate the lot line adjustment had on the properties. While I'm sympathetic to the situation, it doesn't effect a change in the meaning of the Land Use Code. Your core request seems to be for the City to permit a swap of development rights between these two properties. While I understand the request, there is no code provision or process that permits such a swap. You also cite various theoretical situations that could occur regarding buildings built partially within rights -of- way. Again, while I understand your points, I don't see how these potential situations change the meaning of the Land Use Code. My approach to the boundary issue is to encourage all owners (including the other condominium owner of the Hill House Condominiums property) to resolve the lot boundary and/or encroachment issue in a manner that all owners can agree to. This may or may not result in a boundary adjustment application to the City or other land use requests. I realize this may be overly simplistic and that all parties seeing eye -to -eye on this issue is a challenge. LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code currently in effect, which is subject to change. This interpretation shall be valid until such time as the Land Use Code is amended. This interpretation does not create a vested right. This interpretation will be maintained in the official record of all interpretations as provided under Section 26.306.O10.E. APPEAL OF DECISION: Any person who has requested an interpretation may 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 within fourteen (14) days of the date of the decision being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights to appeal the decision. Note: The issuance of this interpretation was delayed beyond the normal 15 -day response at the request of the applicant to allow additional time for discussion between the applicant, the Community Development Director, and the City Attorney. EXHIBITS: A — Request for Code Interpretation from Mitch Haas. HAAS LAND PLANNING, LLC ti RF • ;EVE February 1, 2011 b 0(2011 Mr. Chris Bendon, Director r. Aspen Community Development Department C RSRc(t 130 South Galena Street EVE Or�','c "l�° Aspen, CO 81611 RE: Request for an Interpretation of Title Regarding the Floor Area of a Home Encroaching onto a Neighboring Lot Dear Chris: This letter is a request for a formal Interpretation of Title, pursuant to Section 26.306.010 of the Land Use Code, clarifying the definitions of Floor Area and Floor Area Ratio (FAR). The clarification is sought as a means of determining which lot is assessed the floor area of a home that encroaches onto a neighboring lot. The applicant, Dennis Young, owns a home at 707 Gibson Avenue in the City of Aspen. William B. Wiener owns the property known as Hill House, Unit C, which is contiguous to Mr. Young's home. Approximately 250 square feet of Floor Area from within Mr. Wiener's home encroaches onto Mr. Young's property. The applicant would like to either remodel or tear down and rebuild his existing home at some time in the future, and needs to know the allowable floor area effective for his lot. Mr. Young can calculate his lot area pursuant to the Code and determine the resulting allowable floor area, but remains unclear as to the effect of his neighbor's encroaching structure. While spawned by a specific instance, this request for interpretation is meant to be general in nature and not limited to the case of Mr. Wiener's house and Mr. Young's lot. In 1998, Mr. Wiener bought his property with the notion of expanding the then existing home. Mr. Wiener conferred with the Aspen Community Development Department about the expansion, and it was suggested that he consider a lot line adjustment with his neighbor. The previous owner of Mr. Young's lot and Mr. Wiener subsequently agreed to a lot line adjustment, and said adjustment was approved by the City. The house expansion was then completed within Mr. Wiener's adjusted lot boundaries. A suit was later filed by Mr. Wiener's neighbor who owns the other Hill House condominium unit. The Court sided with the plaintiff and voided the City - approved lot line adjustment. Because of this court judgment, a portion of Mr. Wiener's home now encroaches onto Mr. Young's lot, although at the time of the expansion that land area was considered to be Mr. Wiener's property. As such, the encroachment was developed pursuant to a duly issued building permit and in conformance with City approvals and zoning requirements. Further, due to the court's decision, Mr. Weiner cannot rectify the current encroachment issue by adjusting the lot line. • 201 N. MILL STREET, SUITE 108 • ASPEN, COLORADO • 81611 • • PHONE: (970) 925-7819 • FAX: (970) 925-7395 • RECEWED c 0 ?u CITY OF ASPEN COMMUNITY DEVELOPMENT With the background having been provided above, the code sections requiring interpretation can now be explained. Floor area is defined in the City of Aspen Municipal Code (the "Code ") in Section 26.104.100 and further outlined in Section 26.575.020(A). Per Section 26.104.100, Floor Area is defined as, "the sum total of the gross horizontal areas of each story of the building measured from the exterior walls from the center line of the party walls." Similarly, Floor Area Ratio (FAR) is defined as, "the total floor area of all structures on a lot divided by the lot area." Section 26.575.020(A)(1), Calculations and Measurements further explains that, "in measuring floor area for the purposes of calculating floor area ratio and allowable floor area, there shall be included that floor area within the surrounding exterior walls (measured from their exterior surface) of a building or a portion thereof. When measuring from exterior walls, the veneer and all exterior treatments shall be included..." However, the. Code does not contain any specific text that addresses the floor area of a home that encroaches onto a neighboring lot, especially when the encroachment is not enclosed within exterior walls on all sides. Does the portion of the floor area that encroaches, count against the lot on which it sits or against the encroaching homeowner's lot? If it is to count against the lot on which it sits, which we feel would be an erroneous interpretation, how /to what wall is it measured? It seems illogical and patently unfair to the property owner who already has been burdened - -- by his/her neighbor's home encroaching onto his/her property - -- to have that encroaching floor area count against what he /she is allowed to build. And how would one actually calculate the amount of floor area that is encroaching onto the neighboring property when the floor area is measured to the outside walls? In order to determine the amount of floor area that encroaches onto Mr. Young's lot, we would need to draw an imaginary wall along the property line and calculate the floor area on either side of this imaginary wall. It would be more logical and appropriate to assess the FAR of the encroaching building to the owner of the building (the encroacher), and not the property owner whose lot is being encroached upon, through no fault of his own. Penalizing the person whose lot is being encroached upon by taking away some of that person's allowable floor area, in turn, serves to reward the encroacher by allowing more floor area on the encroacher's lot. That is, if some portion of an encroacher's home does not count against his/her allowable floor area, then the encroacher would, by default, be rewarded for his/her error by now being allowed that much (i.e., amount of encroaching floor area) more floor area for additional development elsewhere within his/her lot. To allow such a result makes no sense, and has the potential to create unnecessary litigation amongst neighbors, with the possibility of the City being dragged into such litigation. By the same token, what if a house encroaches into City Right -of -Way? Does the owner of that house not have to count the encroaching space against his/her allowable FAR? And since it is in the City right -of -way, does that portion of the structure's floor area not count against anyone's limit? Under such a scenario, the encroaching homeowner would then get to again build that amount of floor area encroaching into the City ROW within his/her lot for a "conforming" house that actually contains more floor area than allowed. That does not sound like something the City of Aspen would look favorably upon, and it would actually serve to encourage the "Oops, well it's already there now" approach to construction. 2 While usually the result of an error, encroaching structures are relatively common throughout the City of Aspen, particularly with historic buildings and outbuildings. The applicant can point to several other encroaching structures without even giving it much thought, or actually reviewing the City parcel maps. With an interpretation holding that an owner of a non - historic property loses allowable /otherwise available FAR due to the next door neighbor's encroaching structure, the owner of such non - historic property - -- who is neither under designation nor Historic Preservation Commission (HPC) purview - -- would be encouraged to simply demolish the encroaching portion of the structure in order to "get his/her floor area back." After all, it is more often than not the property itself that is historically designated and not necessarily the individual structures, leaving at risk that portion of a structure encroaching onto a non - historic lot. Surely, such partial demolitions are not something the City would want to encourage or see happen. Instead, the owner and user of the floor area should have the floor area/space they rightfully own count against what they are entitled to build, and not against their neighbor's allowable FAR. The wrongdoer, even when inadvertent, should not be rewarded. Although in some situations where a home encroaches onto a neighboring lot the parties involved could consider a lot line adjustment to solve the problem, that is not so in this or many other instances. In fact, the lot line adjustment that was approved by the City and later undone by the Court's order actually caused the encroachment. In closing, given the ambiguous and open -to- interpretation language of the Code as it might apply to the situations described above coupled with the likelihood of issues that could arise from a different interpretation, it is respectfully requested that a formal interpretation be provided confirming that the floor area from that portion of a structure encroaching onto a neighboring property counts against the lot of the encroacher and not against the property that it encroaches on. To hold differently is to unnecessarily open a proverbial can of worms, issues and disputes. If you should have any questions or require any additional information, please do not hesitate to contact me. Yours truly, Haas Land Planning, LLC Mit 1Haas Owner /Manager cc: John Worcester and Jim True, City Attorneys c:/My Documents/City Applications/Bill Wiener - Dennis Young/Code interpretation Request 3 HAAS LAND PLANNING, LLC talc i March 28, 2011 VEC Mayor Mick Ireland and Aspen City Council r�a nil c/o Mr. Chris Bendon, Director c: ASP EN Aspen Community Development Department Ofj;,; =,., eVE10Pli ?; 130 South Galena Street Aspen, CO 81611 RE: Appeal from an Interpretation of Title Regarding the Floor Area Allocation of a Home Encroaching onto a Neighboring Property Dear Council: The applicant is hereby appealing the Interpretation of Title made by the Community Development Director, pursuant to Section 26.306.010(F) of the Land Use Code. Section 26.316.020(B)(1) of the Code gives City Council the authority to hear and decide an appeal to an interpretation of title at a public meeting. The appeal was filed within fourteen (14) days of the date of the Interpretation, as required by Section 26.316.030(A) of the Code. The Community Development Director rendered his decision on March 9, 2011, and the notice of appeal was filed on March 23, 2011. This is a follow up to the notice of appeal in order to provide the necessary background information for Council to make an informed decision on this matter. The Interpretation of Title involved clarifying the definitions of "Floor Area" and "Floor Area Ratio (FAR)." The clarification was sought as a means to determine which lot is assessed the Floor Area of a home (or portion thereof) that encroaches onto a neighboring lot. The applicant, Young Family Trust 50% Int., owns a home at 707 Gibson Avenue in the City of Aspen. William B. Wiener owns the next -door property to the west, which is known as Hill House, Unit C, and is contiguous to Mr. Young's home. As a result of a lawsuit that nullified a previously approved lot line adjustment, somewhere in the neighborhood of 200 square feet of Floor Area from within Mr. Wiener's home now encroaches onto Mr. Young's property. The Community Development Director (CDD) found that this floor area "is attributed to the parcel on which it now rests." We believe the CDD has made an error and in doing so has, pursuant to Code Section 26.316.030(E), "abused his discretion." The applicant would like to either remodel or tear down and rebuild his existing home at some time in the future, and needs to know the allowable Floor Area effective for his lot. Mr. Young can calculate his lot area pursuant to the Code and determine the resulting allowable Floor Area, but needs to know the effect of his neighbor's encroaching structure. • 201 N. MILL STREET, SUITE 108 • ASPEN, COLORADO • 81611 • • PHONE: (970) 925 -7819 • FAX: (970) 925 -7395 • The following timeline of the events provide necessary background for understanding the current situation: • Mr. Wiener bought his property in 1998 with the notion of expanding the existing home. • Mr. Wiener conferred with the Community Development Department about the expansion, and it was suggested by City staff that he consider a lot line adjustment with his neighbor. • The previous owner of the Young Family Trust lot and Mr. Wiener subsequently agreed to a lot line adjustment, swapping an even amount of lot area. This adjustment was duly approved by the City • The house expansion was then completed within Mr. Weiner's adjusted lot boundaries and in conformance with all applicable City regulations. • The Young Family Trust purchased their "adjusted" lot. • A suit was later filed by another neighbor of Mr. Wiener's, namely the owner of the other Hill House condominium unit to the West. • The Court sided with the plaintiff and voided the City- approved lot line adjustment. Because of this subsequent court decision voiding the lot line adjustment, a portion of Mr. Wiener's home (somewhere around 200 square feet of FAR) now encroaches onto Mr. Young's lot, although at the time of the expansion that land area was considered to be Mr. Wiener's property. As such, the expansion was developed pursuant to a duly issued building permit, in conformance with City approvals and zoning requirements, and the floor area was developed on what was considered, at the time of the development, Mr. Wiener's lot. As a result of the court's decision, Mr. Wiener cannot rectify the current encroachment issue by seeking a new lot line adjustment, and some of the Floor Area he developed on his parcel now resides on his neighbor's lot. Mr. Wiener developed the Floor Area in question on his own parcel. Section 26.575.020 of the Code describes how the City measures various aspects of development. Subsection D describes the way floor area is measured and reads as follows: D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building or portion thereof When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior 2 face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior - mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) [emphasis added] This Code Section is relevant to the question posed in the applicant's request for an interpretation. In his Interpretation, the CDD says the following: "According to the cited language, the floor area of a structure is attributed to the parcel on which it rests. "[emphasis added] The Code does not, in fact, say that. The Code actually says that the floor area shall be attributed to the lot or parcel upon which it is "developed." When Mr. Wiener built the addition to his home, all of the Floor Area was developed on what was then considered his lot/parcel. Due to a Court decision, a portion of Mr. Wiener's house now "rests" on the adjacent property, but it was not "developed" on that property. Since the approximately 200 square feet of Floor Area that now rests on the applicant's lot was not developed on the applicant's lot, said floor area should be attributed to Mr. Wiener's lot (and not the applicant's). There is another fundamental problem with the Interpretation as it relates to this particular set of circumstances: it is contrary to the City's codified land use regulations governing lot line adjustments. Code Section 26.480.030(A)(1)(d) provides that lot line adjustments are exempt from the subdivision requirements of the Code if "it is demonstrated that the lot line adjustment will not affect development rights, including any increase in FAR..." When Mr. Wiener received approval from the City for his lot line adjustment, neither of the lots' development rights were affected. As an effect of the Court's decision, another lot line adjustment occurred. The above -cited Code section makes it clear that a lot line adjustment cannot affect development rights, including any increase in FAR. The CDD's Interpretation holding that the portion of Mr. Wiener's home that now rests on the applicant's lot counts against the applicant's allowable FAR affects the development rights of both parcels: it effectively increases Mr. Wiener's development rights and proportionately decreases the applicant's development rights. Therefore, the Interpretation is contrary to the regulations applicable to a lot line adjustment, and a lot line adjustment is exactly the effect of the Court decision. Although it is the applicant's position that, in this particular situation, the wording of the Code supports applying the now encroaching Floor Area to Mr. Wiener's lot, there is an underlying problem with this Code section in general. It seems illogical and patently unfair to a property owner who already has been burdened - -- by his/her neighbor's home encroaching onto his/her property - -- to have that encroaching Floor Area count against what he /she is allowed to build. It would be more logical and appropriate to assess the FAR of the encroaching building to the owner of the building (the encroacher), and not to the property owner whose lot is being encroached upon, through no fault of his/her own. Penalizing the person whose lot is being encroached 3 upon by taking away some of that persott'! allowable Floor Area, in turn, serves to reward the encroacher by allowing more Floor Area on the encroacher's lot. That is, if some portion of an encroacher's home does not count against his/her allowable Floor Area, then the encroacher would, by default, be rewarded for his/her error by now being allowed that much (i.e., amount of encroaching Floor Area) more Floor Area for additional development elsewhere within his/her lot. To allow such a result makes no sense, and has the potential to create unnecessary litigation amongst neighbors, with the possibility of the City being dragged into such litigation. By the same token, what if a house encroaches into City Right -of -Way? Does the owner of that house not have to count the encroaching space against his/her allowable FAR? Under such a scenario, the encroaching homeowner would then get to again build that amount of Floor Area encroaching into the City ROW within his/her lot for a "conforming" house that actually contains more Floor Area than allowed. That does not sound like something the City of Aspen would look favorably upon, and it would actually serve to encourage the "Oops, well it's already there now" approach to construction. While usually the result of an error, encroaching structures are relatively common throughout the City of Aspen, particularly with historic buildings and outbuildings. The applicant can point to at least four other encroaching structures without even giving it much thought, or actually reviewing the City parcel maps. With an interpretation holding that an owner of a non - historic property loses allowable /otherwise available FAR due to the next door neighbor's encroaching structure, the owner of such non - historic property -- - who is neither under designation nor Historic Preservation Commission (HPC) purview - -- would be encouraged to simply demolish the encroaching portion of the structure in order to "get his/her floor area back." After all, it is more often than not the property itself that is historically designated and not necessarily the individual structures, leaving the portion of the structure encroaching onto a non - historic lot at risk. Surely, such partial demolitions are not something the City would want to encourage or see happen. Instead, the owner and user of the Floor Area should have the Floor Area/space they rightfully own count against what they are entitled to build, and not against their neighbor's allowable FAR. The wrongdoer, even when inadvertent, should not be rewarded, nor should an innocent bystander be penalized. In the Interpretation, the CDD suggests that all of the owners (including the other Hill House Condominium owner) resolve the lot boundary and/or encroachment issue in a manner that all can agree to. Although in some situations where a home encroaches onto a neighboring lot the parties involved could consider a lot line adjustment to solve the problem, that is not so in this instance. Mr. Wiener has already received a lot line adjustment from the City which was reversed by the Court's decision on the lawsuit filed by the other owner. In fact, the lot line adjustment that was approved by the City and later undone /re- adjusted by the Court's order actually caused the encroachment. 4 In closing, given that the language of the Code specifically states that "Floor Area shall be attributed to the lot or parcel upon which it is developed," and not upon which it "rests," the applicant's property should not be assessed that portion of Mr. Wiener's home that now rests on his lot. When said floor area was developed it was on Mr. Wiener's lot. Furthermore, the Interpretation runs contrary to the lot line adjustment regulations of the Code by affecting the development rights of both of these lots. The applicant respectfully requests that the City Council reverse the CDD's Interpretation and attribute all of the Floor Area of Mr. Wiener's home to the lot that it was developed on (Mr. Wiener's). Furthermore, Council may wish to go even further and make the finding that the Floor Area from any encroaching structure be attributed to the encroacher, and not against the property that it encroaches upon. To hold differently may open a proverbial "can of worms ", and create more issues and disputes among property owners. However, this finding is not necessary in order to reverse the Interpretation as it applies to this specific instance. If you should have any questions or require any additional information, please do not hesitate to contact me. Yours truly, Haas Land Planning, LLC M411/ aas Owner/Manager cc: John Worcester and Jim True, City Attorneys 5 • Chapter 26.306 Wiblisk JOIEMINP INTERPRETATIONS OF TITLE Sections: 26.306.010 Interpretation. 26.306.010 Interpretation. A. Authority. The Community Development Director shall have the authority to make all interpretations of the text of this Title and the boundaries of the zone district map. B. Initiation. An interpretation may be requested by any affected person, any resident or real property owner in the City of Aspen, or any person having a contractual interest in real property in the City of Aspen. The Community Development Director shall have the authority to initiate interpretations of Title 26. C. Procedures. 1. Submission of request for interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interpretation shall be submitted to the Community Development Director. 2. Determination of completeness. Within fifteen (15) days after a request for interpretation has been received, the Community Development Director shall determine whether the request is complete. If the Community Development Director determines the request is not complete, he shall serve a written notice on the applicant specifying the deficiencies. The Community Development Director shall take no further action on the request for interpretation until the deficiencies are remedied. 3. Rendering of interpretation. After the request for interpretation has been determined complete, the Community Development Director shall render an interpretation within fifteen (15) days. The Community Development Director may consult with the City Attorney and review this Title and the zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail. E. Official record. The Community Development Director shall maintain an official record of all interpretations in the Community Development Department, which shall be available for public inspection during normal business hours. Once an interpretation is rendered, public notice describing the interpretation shall be published in the legal notice section of an official paper or a paper of general circulation in the City of Aspen. Such notice shall be provided within fifteen (15) days of the interpretation being rendered, and shall be substantially in the following form: "A code interpretation to City of Aspen Land Use Code. August, 2007. Part 300, Page 17 i ' A 1 Section 26.xx.xx of the City of Aspen Land Use Code , requested by xx, was rendered on xx/xx/xx and is available for public inspection in the Community Development Department." F. Appeal. Any person who has made a request for interpretation may appeal the interpretation oCthe Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. (Ord. No. 12 -2007) City of Aspen Land Use Code. August, 2007 Part 300, Page 18 Chapter 26.316 APPEALS Sections: 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 of Adjustment. 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 11 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 appeal. 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 S AFFIDAVIT OF PUBLIC NOTICE II P ak% hi 4 .... REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306 • ASPEN LAND USE CODE a ADDRESS OF PROPERTY: / U(R Aspen, CO STATE OF COLORADO ) ) ss. County of Pitkin ) I i.e'.0 S C (name, please print) being or representing an Applicant tote City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) or Section 26.306.010 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. Publication of notice: By the publication in the legal notice section of an official Paper or a paper of general circulation in the City of Aspen no later than fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. A _ Cc c 1 Signature The foregorn "Affidavit of Notice" was acknowledged before me this at day of , 20 1.1, by orC� . PUBLIC N J RE: CI Y OF ASPEN LANO USE CODE INTER non WITNESS MY HAND AND OFFICIAL SEAL of th CE 16 the of HEREBY spe La Use Code w issued on March 9, 2011, regarding Section 26.575.020. Miclh tch Haas o Haas Land Planning ing ng on requested al by The Mitch My mmission expires: 3 -29 - 2cil c( i Hers Area. Haas antl Planni on behalf of Dennis Youn of TOT Gbson Avenue. Aspen, CO 1 p ar a structure, p The or ods clarieiesf,isf to the of a l u wr ich 1 p y s i caf, to e re e ce interpretation upon whib if physically rests. The 91 the City of Aspen Community Galena n, 8 City Hall; 130 So. Galena Slreeta otary Public Aspen, W 81fi11. r‘‘'`‘ Cotyutlpen Community Chris Se oof _ Y P Ve `I City or f Aspen or at I Department, 920-5- 5090 or a1 p•' ° °••. a I r Ehns.bendonaci,as0A ne^ rO. ro.us. foe CO 1 /eerie xendon, ATTACHMENTS: S Community Development Director city of ASPen COPY OF THE PUBLICATION e ''"' M. , Published in the Aspen Times Weekly on March rl 1 t,li'�i.tIN`': 1 20,2011. [6293874) /tl r(a * .r 1. My Commission Expires 0312912014 , -1 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: 707 Ci% 125vra , Aspen, CO SCHEDUL D P BLIC HEARING DATE: Kay) Apri 2$ P 5:6o/4i , 201L STATE OF COLORADO ) ) ss. County of Pi :kin ) . /I Pre/mt Q Cv-re—c l (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: l�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 20_, 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) 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. Signature The e ���� The fo egoing "Affidavit of Notice" was . cknowledged before me this << day of IIPIA , 20 (, by A 2(r Sr—C-4--4"—C—t . P 'BUON AN WITNESS MY HAND AND OFFICIAL SEAL RE: APPS L OF LANG USE CODE INTERPRETATIOI -FLOOR AREA NOTICE IS HER dY GIVEN that an Area. appeal The y / w brelcoen d theCby thespee o P of ^l C e an Y My Commission expires: 04 4- ( /a0 /-5 ' Col be coon 25, 0b11 y The meeting begins at 5 ! // Council on City April a5, 130 So. / p in Clly Hall Council Chambers, 1 The Galena Street', p 2011. and / i nrpreat issuetl on March 9, I J I - `_ regteards t Section ion wa 26 5T5 020 0 - Pica O -, appeal Is submitted by Mitch Haas o' HeT G bson n N g Public '`' f U Q / `�� Planning on behalfDennis C0 8 81611. The lnterp F/ Avenue. Aspen, orti an clarified �. + ° - -- .� 1 thereof, Is attributed that the floor area of a sfeltuponw ic N Q- ' to the pa �; ! . -.y �, hy E / psica rests. The i and the appeal , "V 's availab le for D D ev l a nl0 at the City oy �.,'! S" el ' I �HSpe1 130 So. Galena a Streepmept D CO 8 1 1 61 L C'ly ( P \P' i Q Hall; 130 So. Galena Street: Aspen, ` 4 For further in fo r mation, contact Chris Bendon at the 1 1 \.Q : C 1 1 Ci ty of Aspe Oommunily Develop t� 9Tm '5090 92 m at D w i or 1. ePart menl. a en cQ_1s nhl IdM�r ATTACHMENTS AS APPLICABLE. � rE of �o; C ICih,ofAs THE PUBLICATION ar Published in the Aspen Times Weely on0A'751�01 tAPH OF THE POSTED NOTICE (SIGN) 2011. HE OWNERS AND GOVERNMENT AGENGIES NOTIED .__ ...n.ni T CERTICICATION OF MINERAL ESTATE OWNERS NOTICE AS REQUIRED BY C.R.S. §24- 65.5 -103.3 l e 41 : 0 6 • Ma x O` ya x •.? c ea . ( ea i '0 n * i ° C x ott 0 o m 0 Z y �a y T 0 V] P CA (A . m 'C y It z z N ~ ~ 0 t-' Sr -- 0 H So Rl 1■1•1111■111■11 ref i - . 1 . • w '� w fla w - N w r T i j u' w ______ in ..... . Ln a. 3 to m x Tu is 5 • nj �■ o \v w W. 4 illi till; l qM " 14,1 “. � : at Fi.. titi rt +Z: Fl itrq 4 7 ` . 0o F O y o UWTf o a , U�WT m ,SI. o p� S j. r a 9 7 m a p� 9 m rn ➢ . p N T O 1 B O OON 7 a 3m Se _ A9 N n -a 0730” O A Q T O a °CA ; ma9 ill' • a, o 132 ° � � rn oA" N 0 • SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1, 2, and 3. Also complete A. Signature � item 4 if Restricted Delivery is desired. _ 0 Agent • Print your name and address on the reverse X,1* « V' - 0 Addressee so that we can retum the card to you. R. Received by ( - .Intel Name) C. . • •te�elivery • Attach this card to the back of the mailpiece, - .�- or on the front if space permits. l - D. Is delivery address different from item 1? 0 Yes 1. Article Addressed to: If YES, enter delivery address below: 0 No 40 ktt I 5 • Octal I- �� pp „ a. R t 1 EL4l011 t �S 2 I �� i V� ` *� � # IO2 3dCertified Mail 0 Fps Mail 0 Registered 0 Return Receipt for Merchandise As( (In ' ^ c $ 1 , I' 0 Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number 91 7108 2133 3934 3805 8273 (Transfer from service labs° PS Form 3811, February 2004 Domestic Return Receipt 102595-02- M-1540 • • MEMORANDUM 1 x TO: Mayor Ireland and Aspen City Council FROM: Chris Bendon, Community Development Director 141 RE: Theater Aspen — Request for Waiver of Development Fees DATE: April 25, 2011 SUMMARY: Theater Aspen is requesting waiver of planning and building permit fees for their new tent structure. The organization applied for and was granted staff approval to replace the old seasonal tent with a new seasonal structure. Theater Aspen will be seeking approvals for a year -round structure. These reviews require payment of planning fees as well as building permitting fees. Current fees dues are $4,580. With additional planning review expected for the expected application this number could be $10- 15,000. In addition, there will likely need to be an additional amendment application for the current proposal. The plans submitted for building permit do not correlate with the plans submitted for planning review. The City Council should be aware of creating precedent. A policy that can be applied equally to all non - profits is preferable to a one -by -one policy that could appear as a judgment on the mission of each non - profit. The City has waived or lowered fees for small projects where the extent of the staff work does not correlate to the required fee. The last fee waiver request of significance was for the Jewish Community Center (the Ute Avenue application). That request was denied and the JCC was encouraged to apply for a grant through the City's annual grant program. Staff recommends City Council not approve this waiver and encourage Theater Aspen to apply for a City grant. Action by City Council motion is sufficient. CITY MA GER COMMENTS: .411 R �.Yr — ( f IFS. ' d' /x'1211 ZGi ATTACHMENTS: j/ Exhibit A — Letter from Emily Zeck, Managing Director, Theater Aspen. 1 F -, t • Fee Waiver Request Form ` . City of Aspen THE CITY OP ASPEN Community Development Department This form should be completed and submitted to the Community Development Director for review. You will be notified when a decision has been made to waive or not to waive the fees regarded in this request 1orm. For what fees are you requesting waiver? . 0 BUILDING )FI, PLANNING Applicant Name: f � L+( (L`f $fix Contact Phil( 4170 - 129'1313 i Mailing address: In E. 1414 wtef° -( . suite' 10 3 E -mail address: i..11.417. 1' e "1 a- a'1'1zr . c 1 Project name &address: E. - !fe.- ■..- -ai •E - ... • ,ILi 1.i 1 , 5∎,. it:. Se Fee Breakdown; °`,4 :. �� ire r' . _ , `''HUILOING &iPLANN6ntffr -§ `i c i '71::-- _ ) F _'° Original Tao Requested '� e Original Fee Requested Fee Desalpdon Fee Description . Amount Waiver Amount Waiver �ll= REMP Fee Excavation Foundation Fee ` - �T e- / _ . -- Plannln A. Ilcatlon Fee 1Vlrregli 7111 Permit Fee HPC A. • hcatlon Fee MEM �� Plan Check Other. •ur r /I TOTAL OF FEE WAIVER REQUEST $ t.SRf Reason for Waiver: , ❑ General Fund Department 0 Waived or decreased by City Council (specify ordinance or other decision document) Other- Please explain:� ¶.tom1•-V^I glue 9 /IV /I 1 1 Applicant Signature Date For office use only: Type of fees waived: Total fees waived: $ 0 APPROVE DISAPPROVED 1 �s, 1 C F I y 4 ` Community Development Director Dates[[ t CfAv lot taw ivethictuatk • THE ARE 3P April 12, 2011 City of Aspen Community Development Department 130 S Galena St, 3r Floor Aspen, CO 81611 To whom it may concern: Since its founding in 1983, Theatre Aspen's mission has been to entertain, enlighten, enrich, educate and challenge the residents and visitors of the Roaring Fork Valley through professional quality theatrical productions, new play development initiatives and a broad spectrum of education programs. The next few years will witness continued and significant growth as we solidify our place among Aspen's cultural institutions and become a destination for those who seek professional and exciting theatre. As a local 501c3 non - profit organization, Theatre Aspen operates on a very restrictive budget where every dollar spent outside of our organization's mission has a direct correlation to the quality of our theatrical productions. As an Essential Public Facility, we would like to request that the City of Aspen consider waiving the planning fees for our upcoming Theatre Aspen Major SPA Amendment. We would like to request that the base Planning Fee as well as any additional fees for planning hours be waived; we would also like to have the referral Engineering, Environmental Health, Parks and Housing fees be waived. The Major SPA Amendment submittal which we are currently preparing is to request that the theatre lobby be permitted to remain standing year round. This follows our recently approved Insubstantial SPA Amendment dated Feb. 28, 2011. We are currently working with the City of Aspen Parks & Engineering Departments in redeveloping the Theatre Aspen site and surrounding area, as such substantial review has already been performed with regard to this project. Since the Theatre Aspen tent and lobby structure is a replacement of a previously existing structure of the same size, no additional employees will be required with this development. Thank you for your consideration, and please let us know what additional information we can provide. Sincerely, Emily Zeck Managing Director, Theatre Aspen TheatreAspen.org A: 110 East Hallam Street Suite 103 Aspen, Colorado 81611 P: 970.925.9313 E: info @TheatreAspen.org