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HomeMy WebLinkAboutminutes.council.20110509 Regular Meeting Aspen City Council May 9, 2011 PROCLAMATION — Month of the Young Child 2 PROCLAMATION — Arbor Day 2 PROCLAMATION — Aspen Police Week 2 OUTSTANDING EMPLOYEE BONUS AWARD 2 CITIZEN COMMENTS 2 COUNCILMEMBER COMMENTS 3 CONSENT CALENDAR 3 • Minutes — April 25, 2011 4 • Resolution #32, 2011- Phase I Construction Contract Wheeler Remodel 4 ORDINANCE #17, SERIES OF 2011— Code Amendment Solid Waste 4 ORDINANCE #18, SERIES OF 2011 — Supplemental Appropriation 5 ORDINANCE #15, SERIES OF 2011— Stormwater Fee in Lieu of Detention 6 ORDINANCE #16, SERIES OF 2011 — Amendment to Urban Runoff Management Plan 6 RESOLUTION #31, SERIES OF 2011 — Appeal of Code Interpretation Floor Area 7 1 Regular Meeting Aspen City Council May 9, 2011 Mayor Ireland called the meeting to order at 5:20 PM with Councilmember's Johnson and Kruger present. PROCLAMATION — Month of the Young Child Councilman Johnson read the proclamation, proclaiming May 2011 the Month of the Young Child and thanking all those who work with and care for the youngest citizens of Aspen and recognize and support the needs of young children. Eva Jankovsky, Kids First, told Council she has just completed her master's in early childhood. Ms. Jankovsky said most of the community does not know what early childhood teachers do and how important what they do is to childhood development. Ms. Jankovsky invited the community to participate in the Children's Parade, May 17 at 10 AM starting at Boogies. There is also a parent night May 26 at 5:30 PM at the yellow brick school gymnasium. PROCLAMATION — Arbor Day Councilwoman Kruger read the proclamation, proclaiming May 14 as Arbor Day and urged all citizens to support efforts and to care for the trees and woodlands and to support Aspen's forestry program. Chris Foreman, city forester, invited everyone to the Arbor Day celebration May 14 at Paepcke Park for food and free trees to city residents. PROCLAMATION — Aspen Police Week Mayor Ireland read the proclamation, proclaiming May 15 to 21 as Aspen Police appreciation week, recognizing the dedication and service of the Aspen Police Officers. OUTSTANDING EMPLOYEE BONUS AWARD Steve Barwick, city manager, told Council this first quarter outstanding employee bonus award goes to a team that created the city's intranet site. The team is Sheila Babbie, Ada Christensen, Rebecca Hodgson, Jennifer Outwater, Karen Harrington and Ruth Kinney. Mayor Ireland and Council presented team members with checks and plaques for their achievement. Mayor Ireland said the site is creative and informative. CITIZEN COMMENTS 1. Rachel Richards, Pitkin County Commissioner, invited the community to an open house and celebration of the Droste property June 28 at 3 PM. The celebration will start at the Snowmass town center. Ms. Richards said the county open space is working on an interim 2 Regular Meeting Aspen City Council May 9, 2011 management plan for the Droste property. Ms. Richards said this was a joint effort of Snowmass, Aspen and Pitkin County with thanks to Aspen Valley Land Trust, GOCO and private donors. 2. Marilyn Marks requested an optional recount of the Mayor's race of last week's election. Ms. Marks stated she believes Aspen had the highest quality municipal election in the state of Colorado. The regulations Council adopted brought Aspen's standards to the highest in the state and created some new regulations including the threshold for a recount. Ms. Marks noted in the Mayor's race, there is a 2 or 3 vote difference that might require a mandatory recount. Ms. Marks said the threshold for a recount should not be confused with a runoff; there would have to be an 11 vote change to require a runoff. Ms. Marks said the election was conducted in a quality way and a recount would finish the process and assure the public that every single ballot was counted in a way the voters intended. Ms. Marks said she does not expect the results to change; however, it is important to have verification. Kathryn Koch, city clerk, said the recount will cost about $1000 for staff and judges time and is scheduled for Thursday May 12` Ms. Marks pointed out there were 19 ballots that the machine counted as having no vote in the Mayor's race and these should be checked to make sure there are no marks the machines did not count. This is advocacy for the voters. 3. Steve Aitken, golf department, introduced David DeMay with the Rubito golf school. DeMay has moved here to start work on the golf school. Aitken told Council the Aspen Golf Club was ranked the number one municipal golf course in the state of Colorado. COUNCILMEMBER COMMENTS 1. Councilman Johnson thanked the candidates who ran in last week's municipal election; it was an interesting process. Councilman Johnson congratulated Steve Skadron, Mick Ireland and Adam Frisch for winning. Councilman Johnson thanked the election commission and all the volunteers who made it a great election and all the citizens who came out and voted. 2. Councilwoman Kruger thanked the Election Commission and the other candidates for the election. Councilwoman Kruger said it was an amazing and rewarding experience. Councilwoman Kruger said she is proud to be a member of this community. 3. Mayor Ireland said we are living in a great place and one should not lose sight of that. Mayor Ireland thanked Ruth Kruger and Andrew Kole who ran for Mayor and who contributed some great ideas. Mayor Ireland said it is difficult to put oneself out there and be subjected to negativity. Mayor Ireland thanked Scott Writer, LJ Erspamer, Marcia Goshorn and Cliff Weiss for putting themselves out as Council candidates and to Adam Frisch and Steve Skadron for their campaigns. Mayor Ireland thanked his campaign committee and team for refraining from negativity. CONSENT CALENDAR Councilman Skadron came into the meeting. 3 Regular Meeting Aspen City Council May 9, 2011 Councilman Johnson moved to approve the consent calendar; seconded by Mayor Ireland. The consent calendar is: • Minutes — April 25, 2011 • Resolution #32, 2011 - Phase I Construction Contract Wheeler Remodel Mayor Ireland noted the contract for the Wheeler is to determine what shape the building is in and how much work will be needed for phase II and costs $278,000. All in favor, motion carried. ORDINANCE #17, SERIES OF 2011— Code Amendment Solid Waste Councilman Johnson moved to read Ordinance #17, Series of 2011; seconded by Councilman Skadron. All in favor, motion carried. ORDINANCE N0. 17 (Series of 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 12.06 OF THE ASPEN MUNICIPAL CODE, SOLID WASTE, WASTE REDUCTION Mayor Ireland asked if the results of the compost can be sold. Ashley Cantrell, environmental health department, said that is a county decision and they are going to look at creating some different products, one row of food waste, one row of food and paper waste, and a row of everything available for purchase by landscapers and gardeners. Ms. Cantrell said this code amendment will allow private businesses to start a compost hauling business and to allow for existing trash haulers to haul compost. This should promote small businesses starting and allows compost to be hauled from residents and businesses. Ms. Cantrell said single family or multi- family complexes can work with waste haulers to have a compost collection bin. Ms. Cantrell told Council the city will provide compost bins for peoples' kitchens which can be put out for collection. Ms. Cantrell said this compost will include vegetable waste, meat waste and paperboard. Councilwoman Kruger asked if this will be mandated so that people have to use it. Ms. Cantrell said this is a voluntary program. Councilwoman Kruger asked if there is additional cost to the consumer. Ms. Cantrell said this amendment allows waste haulers to pick up compost and they can charge whatever they want. Councilwoman Kruger moved to adopt Ordinance #17, Series of 2011, on first reading; seconded by Councilman Johnson. Roll call vote; Councilmembers Johnson, yes; Skadron, yes; Kruger, yes. Mayor Ireland, yes. Motion carried. 4 Regular Meeting Aspen City Council May 9, 2011 ORDINANCE #18, SERIES OF 2011— Supplemental Appropriation ORDINANCE NO. 18 (Series of 2011) AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET MANAGEMENT PLAN FUND EXPENDITURES OF $2,917,400, AN INCREASE IN THE GENERAL FUND OF $2,878,040 AN INCREASE IN THE PARKS AND OPEN SPACE FUND OF $285,580, AN INCREASE IN THE WHEELER OPERA HOUSE FUND OF $614,590, AN INCREASE IN THE CITY TOURISM PROMOTION FUND OF $115,360, AN INCREASE IN THE TRANSPORTATION FUND OF $456,770, AN INCREASE IN THE HOUSING DEVELOPMENT FUND OF $2,745,670, AN INCREASE IN THE KIDS FIRST FUND OF $558,560, AN INCREASE IN THE STORMWATER FUND OF $541,680, AN INCREASE IN THE PARKS AND OPEN SPACE CAPITAL FUND OF $785,890, AN INCREASE IN THE WATER FUND OF $2,359,410, AN INCREASE IN THE ELECTRIC FUND OF $302,360, AN INCREASE IN THE RENEWABLE ENERGY FUND OF $2,350,860, AN INCREASE IN THE PARKING FUND OF $503,180, AN INCREASE IN THE GOLF COURSE FUND OF $37,820, AN INCREASE IN THE TRUSCOTT FUND OF $273,510, A INCREASE IN THE MAROLT FUND OF $5,150, AN INCREASE IN THE EMPLOYEE HOUSING FUND OF $322,329, AN INCREASE IN THE INFORMATION TECHNOLOGY FUND OF $440,410, A INCREASE IN THE HOUSING ADMINASTRITION FUND OF $103,300 AND AN INCREASE IN THE SMUGGLER FUND OF $70,000. Don Taylor, finance director, told Council of the $18 million of budget requests, only $2,468,000 are new requests. Taylor listed all the new requests, most of which have been reviewed by Council. The ordinance also contains carry forwards and departmental savings. Councilman Johnson said he would like to know more about the water utility fund before second reading. Councilman Johnson asked about the compressors for the Ice Garden and the current compressors are 40 years old and parts are difficult to get. Councilman Johnson said he would like to know the useful life of the new compressor, any lost revenue from shutting down the Ice Garden. Councilwoman Kruger said she spent time with staff getting some of her questions answered and she appreciates staff time. Councilwoman Kruger asked about the costs for the Entrance to Aspen. John Krueger, transportation department, said Council requested a survey regarding different alternatives on the alignment to Aspen, the survey has been sent out and returned to the consultants who are doing the tabulation. There should be a final report to Council in June. Councilwoman Kruger asked why the city is spending money on the acquisition of the Droste property outside the city limits. Mayor Ireland said Aspen citizens will be using those trails and open space. Mayor Ireland said Council determined that by helping to acquire the property and that by sharing in the costs, the city would have some say in how the property will be used. Councilman Johnson agreed he was skeptical about this and rode up to Droste with the parks department and was amazed by the property and what the city and county were getting. 5 Regular Meeting Aspen City Council May 9, 2011 Councilwoman Kruger stated she would like a more recent dam report on Thompson reservoir than 1989 showing this work is an emergency. Dave Hornbacher said he will contact the state and see what he can get. Councilman Skadron said he would like information on the loan versus the grant made to ACRA for the tourism promotion fund for second reading. Councilman Skadron moved to adopt Ordinance #18, Series of 2011, on first reading; seconded by Councilman Johnson. Roll call vote; Councilmembers Kruger, yes; Skadron, yes; Johnson, yes Mayor Ireland, yes. Motion carried ORDINANCE #15, SERIES OF 2011 — Stormwater Fee in Lieu of Detention ORDINANCE #16, SERIES OF 2011— Amendment to Urban Runoff Management Plan April Long, engineering department , told Council Ordinance #15 eliminates the existing stormwater development fee and establishes an option for a fee in lieu of on -site detention. Ms. Long said because the fee will be eliminated, the city can no longer perform improvements or repairs to the stormwater infrastructure as planned. Ordinance #16 changes the urban runoff management plan, the city's drainage design guidelines, to require more on -site detention to help alleviate the increased demand on the stormwater systems. Developers, at their discretion, will have the option to pay the fee instead of meeting the on -site detention requirements. The new standard will be to retain to historic rates; the city currently requires projects to retain to pre - project rates. The fee of $70 /cubic foot of detention required has been set. The fee is based on quotes received from contractors for a hypothetical site. Ms. Long told Council the fee can be appealed through the city's appeal process. The elimination of the fee will result in less revenue for the storm water fund and those revenues collected will be used to provide improvements to the storm water infrastructure and stormwater management throughout the city. Ms. Long said staff feels this change addresses the equity problems by creating an optional fee and by changing the trigger on how this affects different sites. Mayor Ireland asked how likely it will be that the city will be unable to fund capital projects and update the capacity of stormwater infrastructure. Ms. Long said since the fee is optional, it has made forecasting revenue difficult; however, mitigating on -site results in zero impact to the stormwater runoff. Ms. Long said staff will report back to Council on how the fee is contributing to the stormwater fund. Councilman Johnson noted he appreciates staff realizing the guarantee budget will not be there and working on options, like Rio Grande park to address the storm water issue. Mayor Ireland opened the public hearing. Peter Fornell said he supports this and said there will be developers who will pay cash -in -lieu over retention on site. Fornell said this is a great idea. Fornell told Council at his affordable housing project, 301 Hyman, his goal is for the on -going cost of ownership to be as low as possible to the homeowners and there may be on -going maintenance costs with on -site stormwater. Frank Goldsmith, on behalf of Aspen Valley Hospital, said this is good for the rivers and benefits AVH; projects with a lot of land can mitigate on site. Yancey Nichols, Sopris 6 Regular Meeting Aspen City Council May 9, 2011 Engineers, told Council working with staff, he applied this code amendment to existing projects. Nichols said he feels these ordinances are a benefit for both sides. Nichols said in the core, it makes more sense to pay the fee -in -lieu and would be a better use of the land. hi other parts of the city, doing retention on site may garner benefits to the river more quickly. This is a positive direction for the city and for landowners. Mayor Ireland closed the public hearing. Councilman Johnson moved to adopt Ordinance #15, Series of 2011, on second reading; seconded by Councilwoman Kruger. Roll Call vote; Councilmembers Kruger, yes; Skadron, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. Councilwoman Kruger moved to adopt Ordinance #16, Series of 2011, on second reading; seconded by Councilman Johnson, Roll call vote; Councilmembers Skadron, yes; Johnson, yes; Kruger, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #31, SERIES OF 2011— Appeal of Code Interpretation Floor Area Chris Bendon, community development department, showed Council a map of this property along Gibson Avenue; it is 3 parcels, lots 1 and 2 Hill House condominium, which is one parcel and a condominiumized lot and 707 Associates, which is separate ownership. Bendon told Council in 1998 there was a lot line adjustment between Lot 2 and 707 Associates to swap land. The application was submitted on behalf of the owner of lot 2, was accepted and the lot line was adjusted; Bendon pointed out the land swap and lot line. After the lot line adjustment, lot 2 expanded his house into the new area. Bendon told Council the owner of lot 1 Hill House condominiums sued and the Court determined that because both owners of the Hill House condominiums were not party to the application that the lot line adjustment should be reversed and effectively vacated that adjustment. This made the recent expansion straddling the lot line into physical trespass. Bendon said he received a code interpretation request asking to whom the FAR belongs now that the house straddles the lot line — the land on which it is encroaching or the parcel on which it rests. Bendon highlighted the relevant code section which describes how floor area is measured, "floor area shall be attributed to the lot or parcel upon which it is developed" and describes how that is done. Bendon told Council staff's interpretation is that the FAR belongs to the parcel upon which it rests. The appeal asks Council to find that the FAR belongs to the parcel where it was originally developed. Bendon explained to Council the difference between a code interpretation request and a request for a code amendment. The code interpretation asks "what does the code say" not what should it say. The code amendment asks what the code should say. Bendon noted there are 3 standards of review by Council, lack of due process or procedural irregularities and there is no claim for due process issues; second, the lack of jurisdiction or whether the director had the jurisdiction to interpret the land use code; and or whether there was an abuse of discretion in rendering this interpretation, which is what this appeal is based on. Bendon noted there is a discussion of "where it is developed" and what that means. Bendon said in the code language, staff determined that to mean where the floor area physically rests, using 7 Regular Meeting Aspen City Council May 9, 2011 the language "where is rests" as a way to describe where it is developed. Bendon recommended upholding staff's interpretation. Bendon recognized this is an unfortunate situation; sympathy for the parties involved, the court reversing the lot line adjustment plat caused a situation that is difficult to deal with. Bendon said the fix is not rendering a code interpretation just to fix the problem. Mitch Haas, representing the applicant Dennis Young of 707 Associates, told Council the correct standards for this review are outlined in a memorandum from the city attorney. Haas agreed there is no claim for lack of due process. Haas said this request for code interpretation was submitted February 1 seeking clarification on the codified definitions of floor area and floor area ratio in order to determine which lot is assessed the floor area of a house that encroaches onto a neighboring lot. The applicant owns 707 Gibson and Bill Wiener owns Hill House condominium unit C, contiguous to 707 Gibson. Haas told Council the applicant and Wiener have been trying to figure out a way to resolve this issue so that Young will know his allowable floor area. Haas told Council the applicant purchased his property in 1998 intending to expand. The applicant met with the community development department who recommended a lot line adjustment with Wiener and an even amount of lot area was traded, which was approved by the city and recorded. Wiener completed an expansion on his house in conformance with all city regulations; the expansion was legally established. A suit was filed by the owner of the Hill House condominium unit to the west and the court voided the city's approved lot line adjustment. Because of this decision, about 200 square feet of Wiener's house on multiple levels, encroaches onto 707's lot. The expansion was done with a duly issued building permit and in conformance with city approvals with floor area considered to be Wiener's. Haas told Council Wiener cannot rectify the encroachment issue by seeking a new lot line adjustment. Haas said the code interpretation process does not exist for the code to be read back to an applicant. Haas said interpret means to explain or to bring out the meaning of, to make understandable; the question is how the language of the code is to be construed. Haas said staff's interpretation is based on the statement that "floor area shall be attributed to the lot or parcel upon which it is developed." Haas told Council staff's reliance on that language is in excess of jurisdiction, inadvertently, but that language became effective February 9 and the applicant's interpretation request was submitted February 1 and was not applicable. Haas said the language he requested be interpreted said nothing about where floor area should be attributed, leaving open to interpretation how the language ought to be construed. Haas said technically relying on code language not yet in effect may be either abuse of discretion or lack of jurisdiction. Haas said the next step is how to resolve the problem. Haas pointed out the encroachment and that it uses up 200 square feet of FAR. Haas said if you accept the interpretation, the applicant's lot is burdened by having someone's building on their property, not being able to use that property and by having 200 less square feet of floor area for them to build. Haas said Wiener could still apply for that floor area and use it where there is only one floor or where there are vaulted spaces in the house. Haas pointed out staff states this is an issue of trespass and an issue for the neighbors to resolve. Haas stated this position does not recognize the city's role in this issue; the city approved the lot line adjustment and the building permit. 8 Regular Meeting Aspen City Council May 9, 2011 Haas said given the history and the ambiguous language in the code at the time of the application, the city should help to resolve this issue through an interpretation holding the meaning of the code language in this instance is the floor area of Mr. Wiener's house as long as it exists in its current form and location, irrespective of the current lot line, is counted against what is allowed on Wiener's property and not against what is allowed on the applicant's property. Mayor Ireland asked if the issue can be solved by 707 giving Wiener the land under which the improvement rests and not be burdened by the floor area. 707 does not need permission from the other condominium owners to give Wiener the property. Bendon said an easement could be given to recognize the physical encroachment and then have a monetary exchange to recognize that encroachment. Bendon suggested if the 3 property owners agree, this could be resolved. Mayor Ireland said 707 can give the property to Wiener not the condominium association and the 707 owner would get most of his floor area back. Haas said the owner of 707 is willing to give an easement or the land; however, the problem is that it does not restore 707 to his original floor area. Haas noted staff was relying on code language not in effect when the interpretation request was submitted. Bendon stated he did not realize the difference in dates. Bendon reminded Council they went through amending the calculations and measurement section of the code. Haas said the old code was silent on this issue, was ambiguous and open to interpretation. Haas said as the old language would apply in this instance, Council could say Wiener built his addition legally, it was developed on his lot, the floor area is in his house, and he uses it. Haas noted his request for an interpretation contains the old code language. Mayor Ireland asked if Bendon's interpretation of the new language is the same as his interpretation of the old language. Bendon answered it is, the stuff that falls on your property is the stuff that is on your property. Wiener told Council in trying to resolve this, he offered the owners of Lot 1 24,000 square feet in exchange for 2500 square feet, which was not accepted. Wiener said there is no homeowner's association for Hill House; there is no limited area, it is all common area. Bendon said he is concerned about making decisions based on one person in front of Council without knowing the unintended consequences and how this affects other property owners. Bendon said there are ways to fix this, if the parties agree. Haas stated the city had a role in creating this problem, accepting and approving the application and the building permit. Haas said he does not think a code amendment is necessary. The code in effect when this happened did not address the floor area but left it unaddressed. This could be treated as a non - conforming structure. John Worcester, city attorney, stated the court undid the lot line adjustment not because of anything the city did. The court threw this back because the property owners did not follow their own rules. Mayor Ireland noted Wiener followed the rules and did what he needed to do. Mayor Ireland moved to approve Resolution #31, Series of 2011; seconded by Councilman Skadron. Councilman Johnson asked if something could be accomplished by getting all the parties together. Haas said they could try again. Wiener told Council they tried going through 9 Regular Meeting Aspen City Council May 9, 2011 mediation and got nowhere. Haas said if this cannot be resolved, his client has the loss of 200 to 250 square feet of floor area. Mayor Ireland said he does not see grounds for finding abuse of discretion. Councilman Skadron agreed he is not prepared to say staff abused their discretion. Councilman Skadron said he would hope there is a common sense outcome to this issue. Council is being asked to do something that they should not be participating in. Councilman Johnson stated he supports staff recommendation if the 3 parties cannot get together and agree on a solution. Mayor Ireland withdrew his motion. Mayor Ireland moved to continue Resolution #31, Series of 2011, to May 23; seconded by Councilwoman Kruger. All in favor, motion carried. Mayor Ireland moved to adjourn at 8:00 PM; seconded by Councilman Johnson. All in favor, motion carried. r at p // r Ka yn Koch City Clerk 10