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agenda.council.regular.20110627
CITY COUNCIL AGENDA June 27, 2011 5:00 P.M. I. Call to Order II. Roll Call III. Scheduled Public Appearances 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 — June 13, 2011 b) Contract Amendment Burlingame Program Manager c) Resolution #42, 2011 - Droste Conservation Easement VII. First Reading of Ordinances a) Ordinance #21, 2011 — 518 W. Main Subdivision P.H. VIII. Public Hearings a) Ordinance #11, 2011 — Amending Energy Conservation Code b) Ordinance #20, 2011 — Supplemental Appropriation — Castle Creek Energy Center IX. Action Items a) Resolution #43, 2011 — Appeal S /C /I Zone District (Yoga Studio) b) Si Johnson Ditch Access — continue to July 11th X. Adjournment Next Regular Meeting July 11, 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. THE CITY OF ASPEN MEMORANDUM TO: Mayor and City Council FROM: Chris Everson, Affordable Housing Project Manager THRU: Barry Crook, Assistant City Manager and Scott Miller, Capital Asset Director DATE OF MEMO: June 20, 2011 MEETING DATE: June 27, 2011 RE: Burlingame Phase II Integrated Project Delivery Process - Owner's Agent Contract Addendum REQUEST OF COUNCIL: Staff requests that Council approve an addendum to the Owner's Agent, Rider Levett Bucknall (RLB), contract in the amount of $145.,770 for Owner's Agent services to be provided on the Burlingame Phase II IPD process for the months of July through December, 2011. PREVIOUS COUNCIL ACTION: Below is the history for the existing contract with RLB: Original Contract, approved 2/8/10 $301,400 (approved by Council) Amendment No. 1, approved 9/27/10 $119,750 (approved by Council) Amendment No. 2, approved 5/27/11 $ 24,000 (approved by CMO) Current Contract Value $445,150 Proposed Amendment No. 3 $145,770 (approval is requested herein) Proposed New Contract Value $590,920 BACKGROUND: As part of the improvements suggested for the Burlingame Phase II design/development process by the Citizens Budget Task Force and the Construction Experts Group in 2008, the City of Aspen has included the Owner's Agent team component from the inception of the Integrated Project Delivery (IPD) process in 2010. DISCUSSION: The project has entered into the land use process, and public hearings are in the process of being scheduled for July and August of 2011. The Owner's Rep services will be necessary for the land use process as well as for the subsequent construction drawings effort that needs to be completed pending completion of the land use process. While most of the IPD team contracts are based on a fixed scope of services, the Owner's Agent contract is based on consulting effort and thus requires additional funds in order to continue given the extended timeline for IPD process. The original RLB contract expired at the end of 2010 per the original IPD timeline which Council subsequently asked to be slowed down, and in addition, Council added the presales effort to the process which was not anticipated when the contract was initiated in early 2010. Page 1 of 2 THE CITY OF ASPEN Approximately 30% of this contract amendment is for use on tasks that will not be necessary in 2011 if Council chooses not to put the bond funding question for the project on the November 2011 public election ballot. In that case, progress billing on the project for 2011 will occur only for services provided by RLB in 2011, and the remaining contract amount may be used in 2012 in the event that a funding question on the May 2012 ballot is pursued instead. Otherwise, the 30% optional services may not be utilized. This element of the amendment is intended to provide flexibility given the potential for changing conditions on the project. Staff is extremely pleased with the services provided to date by the RLB consulting staff (primarily Scott Sumners). As expected, RLB has added significant value to the process in oversight, organization and a general high level of overall due diligence throughout the process, and staff feels that the value that RLB has brought to the process is showing up as significant improvements to the project's process, designs and budget. FINANCIAL/BUDGET IMPACTS: During the spring 2011 supplemental budget process, City Council approved carry - forward from savings to the 2010 budget in the amount of $2,190,313. Of this amount, staff has allocated approximately $375,000 for potential additional services in 2011 due to the extended timeline, and this request is part of that expectation. While this is an additional expenditure, other additional costs on the project have been minimized and savings to the 2010 budget were significant. The significant savings against the 2010 budget provides further headroom to cover other potential additional costs for the balance of 2011 — which should be expected to some extent given the extended timeline. These contingencies have also been included in the IPD team's estimate for the Burlingame Phase II development and do not add subsidy to the project beyond the proformas that were presented to City Council on November 23, 2010, which are still available on the City of Aspen's website. In fact, RLB is to be credited to some degree for helping the City contain these costs and be able to hold the development estimate that the IPD team has committed to in the City Council work session on November 23, 2010. ENVIRONMENTAL IMPACTS: N/A RECOMMENDED ACTION: Staff recommends that Council approve the contract amendment. ALTERNATIVES: Staff does not recommend entering the land use process or the construction drawings phase of the project without the services of the Owner's Agent. PROPOSED MOTION: Staff proposes that a motion be made to approve the contract amendment. CITY MANAGER COMMENTS: ATTACHMENTS: Exhibit A: Contract amendment Exhibit B: Estimated hourly consulting effort to complete Page 2 of 2 agl>31T A DRAFT 15 June 2011 Amendment No. 3 To the AIA Document B801 CMa -1992 Agreement between Owner and Construction Manager for the Burlingame Ranch Phase II Project dated January 25, 2010 The Agreement between Owner and Construction Manager for the Project is amended effective June 27, 2011, as follows: 1. The Construction Manager shall continue to provide Basic Services as described the Agreement, AIA Document A801 and AIA Document A295, in an extended Implementation Documents phase through December 31, 2011. Major efforts during this period will include the following tasks: 1. IPD & Other Meetings: Participation in, and documentation of, twice- monthly meetings with the IPD team to address outstanding issues in the preparation of implementation documents. 2. Cost & Schedule Updates: Prepare monthly updates to total project cost estimate and project schedule. 3. Progress Reports: Prepare monthly reports summarizing all project - related activity and progress, including all meeting minutes, design decisions and remaining outstanding issues, construction and project cost updates, and schedule updates. 4. Phasing: Assist the Owner in evaluating various phasing options for the project, including construction and soft cost estimates, sales proceeds estimates, cashflow projections, construction sequencing strategies, assessing impact on existing residents, potential mitigation efforts, and preparing City Council presentations regarding these issues. 5. Pre - Sales: Participate in the management and implementation of the Burlingame Ranch Phase II pre -sales program, facilitating communication between the pre -sales program manager and the Integrated Project Delivery Team and communicating project details to prospective buyers. 6. PUD Application: Assist the Owner in responding to inquiries and input from the public, external agencies, City Council and other stakeholders as the Burlingame Ranch Phase II Planned Unit Development application is considered through the public review process and plat recording. 7. Construction Contracting: Assist the Owner in implementation of a competitive selection process to solicit, evaluate and procure services of a general contractor to provide construction -phase services for the project (if necessary). 8. Election Inquiries: Assist the Owner in providing project - related information to the Council and the public preceding an election to authorize the Burlingame Ranch Phase II project, and responding to public inquiries regarding the project (if necessary). 9. General Project Adminstration: Other tasks as directed by Owner. 2394675_1.doc 1 2. Section 13.2.1 of the Agreement is hereby amended to increase the Basic Compensation paid to the Construction Manager by $145,770, from $445,150 to $590,920, for this extended Implementation Documents phase, as follows: Original Contract, approved 2/8/10 $301,400 Amendment No. 1, approved 9/27/10 $119,750 Amendment No. 2, approved 5/27/11 $ 24,000 Current Contract Value $445,150 Amendment No. 3 (this amendment) $145,770 New Contract Value $590,920 3. All other terms and conditions outlined in the Agreement shall remain unchanged. OWNER Construction Manager City of Aspen Rider Levett Bucknall Michael C. Ireland, Mayor Peter Knowles, Executive Vice President 23946751.doc 2 CXNig, Tj RLB Fee Worksheet DRAFT City of Aspen, Burlingame Ranch Phase II Program Manager / Owner's Agent - Contract Amendment No. 3 rev. 20 Jun 2011 ESTIMATED HOURS PER MONTH Jul 2011 Aug 2011 Sep 2011 Oct 2011 Nov 2011 Dec 2011 IPD & Other Meetings: Participation in, and documentation of, twice - monthly meetings with the IPD team to address S 0 10 10 10 10 10 rai outstanding issues in the preparation of implementation documents. Cost & Schedule Updates: Prepare monthly updates to total 10 10 10 10 10 10 project cost estimate and project schedule. Progress Reports: Prepare monthly reports summarizing all project - related activity and progress, including all meeting 10 10 10 10 10 10 +; ?'1] minutes, design decisions and remaining outstanding issues, construction and project cost updates, and schedule updates. Phasing: Assist the Owner in evaluating various phasing options for the project, including construction and soft cost estimates, sales proceeds estimates, cashflow projections, construction 30 30 20 20 20 20 t' • sequencing strategies, assessing impact on existing residents, potential mitigation efforts, and preparing City Council presentations regarding these issues. • Pre - Sales: Participate in the management and implementation of the Burlingame Ranch Phase II pre -sales program, facilitating communication between the pre -sales program manager and 8 8 8 8 8 8 " t. 'Y'c'P7e� the Integrated Project Delivery Team and communicating project details to prospective buyers. PUD Process: Assist the Owner in responding to inquiries and input from the public, external agencies, City Council and other stakeholders as the Burlingame Ranch Phase II Planned Unit 20 20 20 10 10 10 i t o Development application is considered through the public review process and plat recording. Construction Contracting: Assist the Owner in implementation of a competitive selection process to solicit, evaluate and 0 20 30 30 40 30 a procure services of a general contractor to provide construction- I. � phase services for the project W necessary). • .... ........ ..�i._.......- .._.�.m'- Election Inquiries: Assist the Owner in providing project- related information to the Council and the public preceding an election i to authorize the Burlingame Ranch Phase II project, and 10 10 20 20 10 0 -0 "V responding to public inquiries regarding the project (if necessary).• 10 10 10 10 10 10 T:171 S1 ) I kj, k 1 ry .., I tgt a d u .....w�. vu:- ..�lN.uu.Ldv v- .on. =. m ss... L1vSY3S.w,✓�v.. �. _uJ4... -.v v.. �a ...�.�u.. .w. ..- .n�...,em.�i.. -.v.i .... . ....Yw.... . .....0 EXPENSES Travel (assuming 2 -3 trips / month) 54,000 $4,000 53,000 53,000 55,000 55,000 i • 6 .. v.drxwn- ......�...��,[ ..>..,.....1r,v;w.,,xea.,. .!�ivaa a ... ..........�.,�: �e- .....c usr.. .....�..a�,....- .....�- ...,.:.E • This 30% of the contract will be billed only if necessary. Hours /wk avg (base) 20 Flat fee /mo 514,245 Additional hours /wk avg (if necessary) 8 Addtiional fee /mo (if necessary) $6,050 Hours /wk avg (max total) 28 Fee /mo (max total) 520,295 Original Contract, approved 2/8/10 301,400 Amendment No. 1, approved 9/27/10 119,750 Amendment No. 2, approved 5/27/11 24,000 Current Contract Value 445,150 Amendment No. 3 (this amendment) 145.770 Proposed Total Contract Value 590,920 1 G MEMORANDUM TO: Mayor and City Council FROM: Jeff Woods, Manager of Parks and Recreation Stephen Ellsperman, Director of Aspen DATE OF MEMO: June 20, 2011 MEETING DATE: June 27, 2011 RE: Droste Mountain Park Conservation Easement REQUEST OF COUNCIL: The City of Aspen Parks and Recreation Department, Pitkin County Open Space and Trails, and the Town of Snowmass Village request that City Council consent to a deed of conservation easement in gross upon the Droste Mountain Park. The conservation easement on the Droste Mountain Park is a required action of the three local governments (Pitkin County, City of Aspen, Town of Snowmass Village) who worked to acquire the property in order to finalize the award of $2,500,000 from Great Outdoors of Colorado (GOCO) Land Acquisition Grant Program. The conservation easement will be held by the Aspen Valley Land Trust in perpetuity for the protection of the conservation, recreation, wildlife habitat, and scenic values of the property. PREVIOUS COUNCIL ACTION /BACKGROUND: On November 22, 2010, City Council appropriated $1,000,000 for the Droste Mountain Park from the Parks and Open Space fund. This contribution to the acquisition provided a 5.9% ownership of the $17,000,000 purchase of the 845 acre Droste property. Prior to the Council action the City of Aspen Open Space and Trails Board, the Pitkin County Open Space and Trails Board and the Town of Snowmass agreed to purchase the property jointly. In December 2010, the Pitkin County Open Space Program closed on the 845 acre property. The acquisition of the property was completed through a multi - jurisdictional partnership, as conceived. The acquisition of the property when combined with existing neighboring open space parcels created over 2,500 acres of open space available for wildlife, recreation and visual enjoyment. DISCUSSION: The attached resolution and conservation easement formalize the protection of the Droste Mountain Park Property in perpetuity. The City of Aspen, Pitkin County and the Town of Snowmass Village have agreed upon the language to be included in this conservation easement to be granted to the Aspen Valley Land Trust (AVLT). The AVLT has agreed to accept the grant of the conservation easement with the attendant responsibility to enforce its provisions. The City of Aspen, along with the BOCC and TOSV, will be a third party Page 1 of 2 beneficiary of the conservation easement with an ability to independently enforce its provisions. As part owner of the Droste Mountain Park, the City needs to consent to the conservation easement before it is conveyed to the AVLT. The attached resolution memorializes the City's consent to the grant of the conservation easement to AVLT along with a draft conservation easement. FINANCIAL /BUDGET IMPACTS: One of the key financial components to this acquisition was the partnership with Great Outdoors Colorado (GOCO) Land Acquisition Grant Program. GOCO awarded the acquisition project $2,500,000 from this grant program this year, which was a critical component of the acquisition. As a funding requirement, GOCO requires the conservation easement process described above to be completed in order to protect the property in perpetuity. PROPOSED MOTION: "Move to approve the consent of deed of conservation easement in gross upon the Droste Mountain Park Property" CITY MANAGER COMMENTS: ATTACHMENTS: A - Droste Mountain Park Property Conservation Easement Page 2 of 2 RESOLUTION NO. il SERIES OF 2011 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, CONSENTING TO A DEED OF CONSERVATION EASEMENT IN GROSS UPON THE DROSTE MOUNTAIN PARK PROPERTY • WHEREAS, the City of Aspen has established a Parks and Open Space program and is authorized to expend funds for the acquisition of open space lands; and • WHEREAS, Pitkin County, through the Pitkin County Open Space and Trails Program, secured a contract dated December 2, 2010, for the purchase of 845 -acres of land from the Droste Family, as further described in Exhibit A, for $17,000,000; and • WHEREAS, the Droste Property lies adjacent to or in close proximity of several other public open space lands, including Cozy Point Ranch, Cozy Point South, and Aspen Mass, which are owned by or otherwise protected by the City of Aspen; and • WHEREAS, the acquisition of the Droste property would complete an assemblage of open space properties and create a 2,500 acre "mountain park" between the City of Aspen and Town of Snowmass Village; and • WHEREAS, the Droste property possesses important trail connection opportunities which links Aspen's Trail System to Snowmass Village and Pitkin County trails, and provides much needed trail opportunities for equestrians at Cozy Point Ranch; and • WHEREAS, the Droste property provides significant wildlife values, including critical habitat and migration corridor for the Maroon Bells elk herd; and • WHEREAS, the ridgeline of the Droste property can be viewed from locations in Aspen and is an important component of the scenic landscape for the entrance to Aspen and Snowmass; and • WHEREAS, on July 6, 2010, the City of Aspen Open Space Advisory Board recommended the expenditure of $1,000,000 towards the purchase of the Droste property, to be matched by contributions from Pitkin County, the Town of Snowmass Village, the Great Outdoors Colorado program, and private citizens; and 1 • WHEREAS, at the regular meeting on November 22, 2010, the Aspen City Council accepted this recommendation and budgeted $1,000,000 for the Droste property acquisition constituting approximately 5.9% ownership of the property; and • WHEREAS, on December 30, 2010, Pitkin County closed on its purchase contract for the Droste property and took possession of the property on behalf of the people of Pitkin County; and • WHERAS, the Droste property possesses natural, scenic, open space (including agricultural), wildlife, historical, educational and recreational values of importance to the people of Pitkin County, the City of Aspen, and the State of Colorado that are worthy of preservation; and • WHEREAS, the Droste property can best be protected by placing a conservation easement upon it to ensure that it will be made widely available to the general public for non - motorized seasonal recreational use along designated trails and potentially for occasional educational programs for the benefit of the public; and • WHEREAS, the Board of County Commissioners of Pitkin Count and the Town of Snowmass Village have agreed to protect the Droste property by placing a conservation easement upon it and the City Council desires to consent to the terms of said conservation easement as set forth in that certain Amended and Restated Deed of Conservation Easement in Gross naming the Aspen Valley Land Trust as the Grantee of said consecration easement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that The Mayor of the City of Aspen City is hereby authorized to execute, on behalf of the City of Aspen, that certain Amended and Restated Deed of Conservation Easement in Gross appended hereto as Exhibit A. Dated: , 2011. Michael C. Ireland, Mayor 2 I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held , 2011. Kathryn S. Koch, City Clerk Amended and Restated Deed of Conservation Easement in Gross, appended herto as Exhibit A. 3 Attachment A Return to: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 970 - 963 -8440 AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS DROSTE MOUNTAIN PARK [NOTE: This property may be renamed] Pitkin County NOTICE: THIS PROPERTY HAS BEEN ACQUIRED IN PART WITH GRANT # ("GRANT") FROM THE STATE BOARD OF THE GREAT OUTDOORS COLORADO TRUST FUND ("BOARD'). THIS DEED OF CONSERVATION EASEMENT CONTAINS RESTRICTIONS ON THE USE AND DEVELOPMENT OF THE PROPERTY WHICH ARE INTENDED TO PROTECT ITS OPEN SPACE AND OTHER CONSERVATION VALUES. THE BOARD HAS FOUND THAT THIS DEED OF CONSERVATION EASEMENT PROVIDES BENEFITS THAT ARE IN THE PUBLIC INTEREST. THIS AMENDED AND RESTATED DEED OF CONSERVATION EASEMENT IN GROSS ( "Easement ") is granted this day of June, 2011, by the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ( "Grantor" or the "County ") to and for the benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the "Trust "). The Grantor and the Trust are collectively referred to as the "Parties "). The TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado Home Rule Municipality (the "Town ") has executed this Easement for the purpose of (1) consenting to the terms of this Easement; and (2) quitclaiming to the Trust its interest as a grantee under the 1999 Conservation Easement, described below, while retaining rights of enforcement as described in Section 22, herein. The following exhibits are attached hereto and incorporated by reference herein: Exhibit A: Legal Descriptions Exhibit B: Survey of Property, Exhibit C: Water Rights, Exhibit D: Baseline Documentation Acknowledgement. Exhibit E: Consents of 1999 Conservation Easement parties to this Easement RECITALS ...\3c 060611 1 I. The Property (County Tract, Tract A and South Tract). WHEREAS, Grantor is the sole owner in fee simple of approximately 868 acres, more or less, of real property in the Brush Creek area of Pitkin County, State of Colorado, known as "Wapiti Ridge" and more particularly described in Exhibit A, together with certain Water Rights described in Exhibit C (the "Property "). The Property includes the 465 acre, more or less, "County Tract" (previously encumbered by the 1999 Conservation Easement, described below), the 99 acre mil "Tract A" (previously encumbered by the 1996 -7 Conservation Easement described below) and the 304 -acre, more or less, remainder of the Property (the "South Tract ") (not previously encumbered by a conservation easement). The term "Property" shall hereinafter be defined as the land and water rights combined, and the term "Water Rights" shall refer to the water rights alone and include all of Grantor's water rights, title and interest described in Exhibit C. This Easement is an amended and restated conservation easement as to the County Tract and as to Tract A, and is a new conservation easement as to the remainder of the Property WHEREAS, the Grantor acquired the Property in part with funds contributed by the Town and the City of Aspen, Colorado, a Colorado municipal corporation (the "City"), for the purpose of protecting certain ecological, open space, agricultural and recreational values important to the residents and visitors of the Town, the City and Pitkin County; II. The County Tract and 1999 Conservation Easement. WHEREAS, the County and the Town were the co- grantees of a Deed of Conservation Easement encumbering 503 acres, more or less, of land and certain water rights, granted by Peter C. Droste et al., and recorded in the real property records of Pitkin County on December 1, 1999 as Reception No. 438191 ( "1999 Conservation Easement "); WHEREAS, approximately 465 acres encumbered by the 1999 Conservation Easement was conveyed to the County by Warranty Deed (the "County Deed ") recorded in the real property records of Pitkin County on December 30, 2010 as Reception No. 576407 (described in Exhibit A -1 as the "County Tract, ") which County Tract is part of the Property encumbered by this Easement; WHEREAS, as evidenced by the Consents attached hereto as Exhibit E, the parties to the 1999 Conservation Easement have agreed that upon the recording of this Amended and Restated Deed of Conservation Easement the County Tract is released from the 1999 Conservation Easement for the purpose of (1) allowing the County Tract to be joined together with the remainder of the Property in this Amended and Restated Conservation Easement having terms and provisions appropriate for protected land allowing public access for low impact recreational uses; (2) conveying to the Trust any interest of the County and the Town as co- grantees under the 1999 Conservation Easement; and (3) allowing the remainder of the property encumbered by the 1999 Conservation Easement (the "Droste Tract ", referred to in Exhibit E, which is in private ownership as of the date of recording this Easement) to continue to be subject to the 1999 Conservation Easement which does not require public access; V3c 060611 2 WHEREAS, by its execution of this Easement, the Town hereby quitclaims its interest as a co- grantee under the 1999 Conservation Easement to the Trust, while retaining certain rights of enforcement as described in Section 22, herein; WHEREAS, by its execution of this Easement, the County hereby quitclaims to the Trust any interest it may have as a co- grantee under the 1999 Conservation Easement while retaining its interest as Grantor hereunder; WHEREAS, by its execution of this Easement the Trust accepts (1) the quitclaim of any interest of the Town as co -grantee under the 1999 Conservation Easement; (2) the quitclaim of the County as to any interest it may have as co -grantee under the 1999 Conservation Easement; and (3) the terms, provisions and obligations of this Easement pursuant to which the Trust is the sole grantee; WHEREAS, the Parties and the Town wish to restate, merge, supersede and replace the 1999 Conservation Easement as it affects the County Tract (but not interrupt the perpetual duration of the 1999 Conservation Easement or the property right which vested in the grantees at the recording of the 1999 Conservation Easement) with this Easement. III. Tract A and the 1996 -7 Conservation Easement. WHEREAS, Peter C. Droste et al., granted a Deed of Conservation Easement to Pitkin County encumbering 99 acres, more or less, located in Pitkin County, Colorado (referred to as "Tract A "), which was recorded in the real property records of Pitkin County on March 22, 1996 at Reception No. 391098 and re- recorded on November 11, 1997 as Reception No. 410437 ( "1996 -7 Conservation Easement "). Tract A was conveyed to Pitkin County by the County Deed recorded on December 30, 2010, and upon recording of the County Deed Pitkin County became both the owner of the Tract A and the holder of the 1996 -7 Conservation Easement. Pitkin County intends to restate, merge, supersede and replace the 1996 -7 Conservation Easement with this Easement (but not interrupt the perpetual duration of the 1996 -7 Conservation Easement or the property right which vested in the grantee at the recording of the 1996 -7 Conservation Easement). IV. Additional Recitals Pertaining to the Entire Property. WHEREAS, the Property possesses natural, scenic, open space (including agricultural), wildlife, historical, educational and recreational values (collectively, "Conservation Values ") of importance to Grantor, the Trust, the people of Pitkin County, and the people of the State of Colorado that are worthy of preservation; WHEREAS, the Conservation Values of the Property are more particularly described in the Baseline Documentation, described in Section 4 herein, and include the following conservation purposes, the protection of which are recognized for qualified conservation contributions under Section 170(h)(4)(A) of the Internal Revenue Code of 1986, as amended ( "IRC "), and under Section 1.170A -14(d) of the Treasury Regulations: Vac 060611 3 • Relatively Natural Habitat [§ 1.170A- 14(d)(3)]. The Property contains wetlands, riparian areas, and that provide food, shelter, breeding ground, and migration corridors for several wildlife species. Creek and Lake serve as natural habitat for several bird species, including the .... The habitat on the Property is also "significant" as required by the Treasury Regulations, as it represents habitat for rare, endangered or threatened species such as .... [Insert Baseline info and info about CNHP and connectivity] • Open Space [§ 1.170A- 14(d)(4)]. The Property qualifies as open space because it will be preserved for the scenic enjoyment of the general public and is pursuant to a clearly delineated federal, state or local govemmental conservation policy and will yield a significant public benefit. o Scenic Enjoyment. The Property contains a prominent ridgeline as well as scenic pastures and meadows all visible from heavily traveled public roads that add to the scenic, natural and rural character of the landscape in which it lies. Specifically, the Property is visible from Colorado State Highway 82, Brush Creek Road, Owl Creek Road, Snowmass Ski Area and from various other high points on nearby public lands, all of which are open to and actively used by residents of Pitkin County and the State of Colorado. In addition, the Property will be seasonally accessible to the public and provides outstanding views of surrounding mountain ranges and valleys from its ridges. The terms of the Easement do not permit a degree of intrusion or future development that would interfere with the essential scenic quality of the land. o Agriculture. The Property has historically been used for agricultural production including livestock grazing, irrigation and hay production. These uses are representative of the historic uses of the area and are compatible with other land use in the vicinity. o Governmental Policies. Conservation of the Property is promoted by the following local, state, and federal governmental policies and the goals and policies of Pitkin County. The laws and regulations of the State of Colorado and the United States also support conservation of the Property relative to its scenic, wildlife habitat, agricultural heritage, natural area and recreational values: • Local Policies: Pitkin County Land Use Code includes policies that value and protect Rural Development, Recreation, Wildlife and Scenic Quality, and the adoption of the Ecological Bill of Rights. The Brush Creek Master Plan and Owl Creek Master Plan both encourage "conservation easements in the area to maintain and provide continuity between habitat in the wildlife corridors and critical winter habitat in the Brush Creek, Owl Creek, Wildcat Ranch and Williams Hill areas ". Vac 060611 4 The Snowmass Village Comprehensive Plans acknowledges that the "main entrance into Snowmass Village and is a critically important scenic resource to the Town. Lower Brush Creek provides the first significant view of the Village's ranching heritage... [t]he open character of undeveloped lands emphasizes Snowmass Village as a separate community, distinct from other communities in the Roaring Fork Valley. The Lower Brush Creek Valley is a picturesque, high - quality visual and wildlife resource. Preserving the area's open character is a priority in the Lower Brush Creek Valley". • Statewide Policies: The State of Colorado has recognized the importance of private efforts toward the preservation of land by the enactment of Colorado Revised Statutes ( "C.R.S. ") § §38- 30.5 -101 et seq. In addition, C.R.S. §33 -1 -101 provides in relevant part that "it is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors." C.R.S. §38- 30.5 -102 provides for the creation of conservation easements to maintain land "in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest or other use or condition consistent with the protection of open land ..." The State of Colorado also has provided incentive for Colorado landowners to protect their land with conservation easements created pursuant to C.R.S. § §38- 30.5 -101 et seq. and §170(h) of the IRC with the enactment of the Conservation Easement Credit Against Income Taxes, C.R.S. §39 -22 -522, which provides a transferable tax credit for qualifying grants of conservation easements in gross. The Colorado Department of Agriculture Statutes, C.R.S. § §35 -1 -101 et seq., provide in part that "it is the declared policy of the State of Colorado to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products." The Property contains significant sagebrush habitat and its conservation is therefore promoted by the Colorado Division of Wildlife, which lists sagebrush as a Key Habitat and Priority Action Area in its 2006 Comprehensive Wildlife Conservation Strategy and Wildlife Action Plans. The voters of the State of Colorado by adoption of Article XXVII to the Constitution of the State of Colorado, the legislature of the State of Colorado by adoption of enabling legislation, and the Board, by adopting and administering competitive grants application and rigorous due diligence review processes, have established that it is the policy of the State of Colorado V3c 060611 5 and its people to preserve, protect, enhance and manage the state's wildlife, park, river, trail and open space heritage, to protect critical wildlife habitats through the acquisition of lands, leases or easements, and to acquire and manage unique open space and natural areas of statewide significance o Significant Public Benefit. The Property is located in a rural, agricultural, mountainous area of Pitkin County, where there has been a trend of intense development in the vicinity of the Property. The Property provides a buffer between the City of Aspen, _ miles to the east, and the Town of Snowmass Village, immediately to the south, along Highway 82, the main, heavily travelled route to Aspen, and along Owl Creek Road, a scenic secondary route from Aspen to Snowmass Village. Given the Property's native habitat features and value as an elk migration corridor and critical open space, any development of the Property would contribute to fragmentation and loss of habitat and potentially to the degradation of the scenic and natural character of the area. This Easement will provide the general public an opportunity to enjoy recreational access to the Property, and to continue to enjoy its scenic views from major travel corridors. In addition, conservation of the Property will increase the amount of conserved land in the Brush Creek Area, an area currently identified by the Trust, the City of Aspen, the Town of Snowmass Village and Pitkin County as a high priority for protection. The Property is adjacent to over 1,660 acres of conserved land on the Seven Star Open Space properties, Cozy Point South, Cozy Point Ranch, Hidden Valley, and North Mesa conserved public lands and Seven Star and Brush Creek Ranch Lot 10 conservation easements. • Recreation or Education [§ 1.170A- 14(d)(2)]. The Property will be made widely available to the general public for non - motorized seasonal recreational use along designated trails and potentially for occasional educational programs for the benefit of the public. WHEREAS, Grantor intends to convey to the Trust the right to preserve and protect the Conservation Values in perpetuity and the Trust agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values; WHEREAS, the Trust is a charitable organization as described in IRC §501(c)(3), and is a publicly- supported organization as described in IRC §170(b)(1)(A) whose primary purpose is to permanently preserve and protect the natural, scenic, agricultural, historical, and open space resources of the greater Roaring Fork and Colorado River Valleys, and who is a "qualified organization" to do so within the meaning of IRC §170(h)(3), possessing the resources and commitment to protect and defend the conservation purposes of this grant; Vac 060611 6 WHEREAS, the Trust also meets requirements of Colorado law as a qualified recipient for a conservation easement under C.R.S. §38- 30.5 -104, and is certified to hold conservation easements for which a state tax credit is claimed by the State of Colorado's Division of Real Estate as outlined in C.R.S. § 12 -61 -720, and in Rule A -1 Qualifications for Certification to Hold Conservation Easements, for the current term extending from January 1, 2011 to December 31, 2011. Additionally, the Trust is accredited by the Land Trust Accreditation Commission at this time; and WHEREAS, the Board of Directors of the Trust has duly authorized the Trust's Executive Director or her designee to execute and accept conservation easements on behalf of the Trust. AGREEMENT NOW, THEREFORE, in consideration of the matters above, the mutual covenants, terms, conditions and restrictions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. GRANT Grantor hereby voluntarily and irrevocably grants and conveys to the Trust this perpetual Conservation Easement in gross ( "Easement ") over and across the Property pursuant to C.R.S. § §38- 30.5 -101 et seq., through the terms mutually agreed to in this Easement, and to hold said Easement unto the Trust and its successors and assigns forever. The Easement shall constitute a binding servitude upon the Property and shall be subject to prior reservations, easements, encumbrances and exceptions of record, except as otherwise set forth herein. 2. PURPOSES Pursuant to the terms of C.R.S. § §38- 30.5 -101 et seq., the purposes of the Easement are to assure that the Property will remain forever predominantly in its scenic, natural and open space condition, subject to the uses of the Property permitted hereunder, including agricultural and limited recreational use, to protect and preserve the Conservation Values in perpetuity, to prevent any use of the Property that is inconsistent with the preservation and protection of the Conservation Values and, in the event of their degradation or destruction, to require restoration of such Conservation Values (collectively, the "Purposes "). 3. INTENT Subject to the express prohibitions described herein, the Parties' intent is to permit all uses of the Property that are consistent with the Purposes of the Easement (defined above) as determined by the Trust in its reasonable discretion. Nothing in this Easement is intended to compel a specific use of the Property other than the preservation and protection of the Conservation Values. V3c 060611 7 4. BASELINE DOCUMENTATION The Parties acknowledge that a Baseline Documentation Report of the Conservation Values and relevant features of the Property has been prepared by Colorado Wildlife Science, LLC, a company familiar with conservation easements, the Property, and the environs, which documents the Property's condition as of the conveyance date of this easement ( "Baseline Report "). A copy of the Baseline Report shall be kept on file with both Parties and by this reference made a part hereof. The Parties acknowledge that the Baseline Report is intended to establish the condition of the Property as of the conveyance date of this Easement, and both Parties have acknowledged the same in a signed statement, a copy of which is attached hereto as Exhibit 11 The Parties further agree that the existence of the Baseline Report shall in no way limit the Parties' ability to use other pertinent information in resolving any controversy that may arise with respect to the condition of the Property as of the conveyance date of this Easement. 5. MANAGEMENT PLAN Grantor has prepared a Brush Creek Valley /Droste Mountain Park Interim Management Plan ( "Interim Plan ") for the Property which was adopted by the Pitkin County Open Space and Trails Board on or about May 5, 2011, which sets forth the management of the Property, including limited recreational development and use by the public until such time that a long range Management Plan ( "Management Plan ") is adopted, on or about December 1, 2011. A copy of the Interim Plan and Management Plan shall be on file at the offices of the Trust. The Management Plan shall set forth a comprehensive plan for long term recreational development for public recreational use, management of the natural area and agricultural operations. The Management Plan shall be reviewed and accepted by the Trust as being consistent with the provisions of this Easement. Grantor agrees to abide by the terms of the Management Plan and agrees to enforce the provisions of the Management Plan against third parties. The Management Plan may be revised or amended; provided, however, that any such revision or amendment shall first be submitted to the Trust for review and approval, and a copy of any approved revision or amendment shall be provided to the Trust, the Town, the City and the Board. The Trusts' approval shall be granted or withheld based solely upon whether or not the revision or amendment is consistent with the purposes and terms of this Easement and the terms of any grant agreements by which funds to purchase this Easement were secured. 6. RIGHTS OF THE TRUST To fulfill the Purposes of this Easement, Grantor hereby conveys to the Trust a partial ownership interest in the Property (as stipulated in Section 15.3 herein), consisting of the following affirmative rights: 6.1. All development rights deriving from the Property in any way ( "Trust's Development Rights "), except those expressly reserved by Grantor in Section 8 of this Easement. The Parties agree that Trust's Development Rights shall be held by the Trust V3c 060611 8 in perpetuity in order to fulfill the Purposes of this Easement, and to ensure that such rights are forever released and terminated as to Grantor; 6.2. The right to preserve and protect the Conservation Values in perpetuity; 6.3. The right to enter upon the Property at least annually at reasonable times agreed to mutually by Grantor and the Trust to inspect the Property thoroughly, to monitor Grantor's compliance with, and otherwise enforce the terms of this Easement; provided that such entry shall not unreasonably interfere with Grantor's use and quiet enjoyment of the Property, with the exception that no such notice shall be required in the event the Trust reasonably believes that immediate entry upon the Property is essential to prevent or mitigate a violation of the Easement; 6.4. The right to prevent or enjoin Grantor or third parties (whether or not invitees of Grantor) from engaging in any activity or use of the Property that is inconsistent with the Purposes of the Easement; and the right to require Grantor or third parties, as may be responsible, to restore such areas or features of the Property that are damaged by any inconsistent activity or use, subject to the qualifications of Section 14.5 herein; 6.5. The right to receive notification from and join Grantor as a party to any condemnation or eminent domain proceedings affecting the Property (as described in Section 15), or to any leases, surface use agreements, damage agreements or rights -of- way that may be proposed, granted or required hereafter as a result of mineral development affecting the Property (as described in Section 8.2.G); and 6.6. Any other rights that the Parties may approve consistent with the Purposes of the Easement, including adding additional purposes or defining additional Conservation Values. 7. RIGHTS OF GRANTOR Except as limited by this Easement, Grantor reserves to itself and to its personal representatives, heirs, successors, and assigns, all rights and obligations accruing from its ownership of the Property, including the right to engage in activities and uses of the Property not prohibited herein and that are consistent with the Purposes of the Easement, pursuant to IRC §170(h)(4) and C.R.S. §38- 30.5 -102. 8. PROHIBITED AND PERMITTED USES The following uses and practices by Grantor, though not an exhaustive recital, are either prohibited or permitted by this Easement. Certain of these uses, where indicated, require notice to or approval from the Trust, or both, according to Sections 11 and 12. Trust's prior notice and approval is required for uses not expressly described herein when there is a question as to consistency with the Purposes of this Easement. V3c060611 9 8.1. Buildings and Improvements. The construction or placement of any improvements (defined as permanent or temporary buildings, structures, mobile homes or other physical, human- introduced development of or on the Property, including landscaping, fences, roads, septic systems, utilities, etc.) is prohibited on the Property, except as follows: A. Agricultural Structures. Grantor retains the right to construct, replace, enlarge, relocate and maintain minor structures (as defined below) for agricultural purposes (such as hay sheds, loafing sheds or water tanks) of a size and location approved by the Trust. Minor structures are defined as being unenclosed (i.e., possessing three or fewer walls), and not having excavated, raised or slab foundations. Notwithstanding the foregoing, no agricultural improvements shall be constructed in the wetlands, riparian areas, or in the upland hills of the Property, the preservation of which is important to achieve the Purpose of this Easement; B. Recreational Structures. Low - impact (as defined in Section 23.1 herein) benches, picnic tables and interpretive signage for public enjoyment are permitted in a manner consistent with the Purposes of the Easement, and in accordance with the guidelines set forth in the Interim Plan and Management Plan; C. Fencing. Grantor may maintain, repair, and replace existing fences and erect new fences on the Property in locations identified in the Management Plan, provided such new or replaced fencing is consistent with then - current Colorado Division of Wildlife ( "CDOW ") guidelines for fencing in a wildlife migration area so as to permit the movement of wildlife across the Property, and is consistent with the Purposes of this Easement. Grantor reserves the right to construct, expand, repair, replace, and maintain temporary or permanent corrals, livestock holding pens and other enclosures for permitted agricultural uses that do not meet the above CDOW guidelines, provided all such enclosures do not exceed a total ground disturbance footprint of two (2) acres and are located in the existing pasture areas of the Property. Privacy fencing and the planting of trees or other vegetation along Property boundaries in a manner that detrimentally affects the general public's visual access to and across the Property is prohibited; D. Roads. Grantor may maintain, grade and gravel existing ranch and access roads and construct new access road as shown on Exhibit B, provided such roads are not widened or surfaced with impermeable materials without Trust's approval. The construction of an unpaved, dirt or gravel access road for property management or agricultural purposes is permitted in a location approved by the Trust, which road shall not be a through -road or open to the public for motorized recreation or transport. The construction of or granting of easements or rights -of -way for additional new roads is prohibited without approval of the Trust; Vac 060611 10 E. Trails. Grantor reserves the right to develop natural - surfaced recreational trails not to exceed feet in width for non - motorized public use in accordance with the Interim Plan and Management Plan. Use of these trails shall be seasonally restricted in accordance with the Management Plan to protect big game winter range and sensitive wildlife habitat. Grantor also reserves the right to replace, repair, maintain, improve, widen or relocate the existing paved Brush Creek Trail in accordance with the Management Plan; F. Utilities, Irrigation Structures, and Other Technology. The installation of, or granting of easements and rights -of -way for, utilities and related infrastructure requires prior approval from the Trust, except as permitted by easements or rights -of- way existing at the time of this grant, or as follows: a. Buried utility lines and pipelines may be located within existing pasture areas or along permitted roadways; b. The installation, maintenance and improvement of stock ponds and irrigation ditches, pipelines, structures and related equipment for agricultural purposes or the enhancement of wildlife habitat is permitted in compliance with all applicable regulations, and in accordance with Section 8.2.H, Water Resources, and 8.2.I, Water Rights. Construction of ponds or water features for other purposes requires prior approval of the Trust. Soil, sand, rock and gravel produced during the excavation or construction of permitted ditches or ponds may be used or relocated on the Property in a manner consistent with the Purposes of this Easement; c. Low- impact (as defined in Section 23.1) wind, solar and micro -hydro powered generators are permitted in connection with approved uses of the Property or as otherwise approved by the Trust. Grantor shall promptly reseed and restore any surface impacts that result from the installation or maintenance of any above - described improvements to as close to the Property's original condition as possible within three months, season permitting, or as otherwise approved by the Trust. 8.2. Resource Management. Grantor recognizes the importance of good resource management and stewardship to preserve and protect the Conservation Values. Accordingly, Grantor agrees not to alter the topography of the Property through placement or removal of soil, gravel, land fill, or other materials nor to impair the relatively natural habitat for native plants, wildlife, or ecosystems on the Property, except: (a) as necessary in emergencies; (b) as identified in the Management Plan; (c) as approved by the Trust and any required permitting agencies for habitat enhancement or restoration purposes; (d) as necessary for improvements described in Section 8.1 above; or (e) as necessary for the following uses: V3c 060611 1 1 A. Agriculture. Grantor retains the right to conduct agricultural operations on the Property, and to lease lands with appurtenant Water Rights for agriculture, in a manner consistent with sound farming and range management practices so as not to cause significant soil erosion or low soil quality as then - determined by the Natural Resources Conservation Service or its successor organization ( "NRCS ") or as identified in the Management Plan. Permitted agricultural operations include grazing and raising of horses and livestock, maintenance of existing pasturelands, cultivation and raising of crops, and all other agricultural activities not inconsistent with protection of the long -term ecological viability of the land. The following agricultural practices are considered inconsistent with the Purposes of this Easement, and are therefore prohibited on the Property: (1) commercial feed lots, defined as confined areas or facilities within which the Property is not grazed or cropped annually for purposes of extended feeding and finishing of large numbers of livestock for commercial reception and feeding of livestock, and other intensive growth livestock farms, such as dairy, swine, or poultry farms; (2) clearing or conversion of native rangeland or habitat to create new pastures or cropland without approval of the Trust; (3) Tree farms, sod farms, nurseries, fish hatcheries or aquaculture, unless approved by the Trust; (4) Commercial equestrian boarding. If agricultural operations on the Property cease in the future, Grantor agrees to reseed heavily disturbed areas and take other measures necessary to establish native or non - invasive ground cover to prevent the spread of noxious weeds. The Parties agree that agricultural operations may resume at any time thereafter; B. Vehicle Use. On and off -road use of motor vehicles is permitted as necessary for property maintenance, agriculture and range management in a manner that does not result in erosion, harassment of wildlife, or damage to the natural ecosystems or scenic values of the Property. Recreational or public use of motor vehicles is prohibited on the Property; C. Hunting and Fishing. Hunting, fishing and the leasing of hunting rights on the Property may be permitted or prohibited at Grantor's discretion and according to Colorado Division of Wildlife and other applicable regulations; D. Trash. Grantor shall not dump or permanently accumulate trash, garbage, or other refuse on the Property, except for agricultural by- products and compostable matter produced or used on the Property, and except for established trash receptacles as identified in the Management Plan for waste disposal associated with public recreational visits; E. Forest and Vegetation Management. Selective cutting, thinning (see definitions in Section 23.1) and burning of trees and vegetation on the Property is permitted to control fire danger, insects, disease and weeds; to prevent personal injury and property damage; for construction of permitted fences or structures; to maintain the Vac 060611 12 health of the wildlife habitat or ecosystem, or as otherwise identified in the Management Plan. The Trust's approval is required for clear cutting or any management activities performed for commercial purposes, or with the potential to damage riparian areas, contribute to erosion, or negatively impact the scenic of wildlife Conservation Values of the Property. F. Weed Control. Grantor agrees to control noxious weeds and invasive plant species on the Property in accordance with the Colorado Noxious Weed Act, C.R.S. §§ 35 -5.5 -101 et seq. as amended, and other applicable laws, and shall not intentionally introduce noxious weeds or invasive species to the Property; G. Minerals. In accordance with IRC §170(h) and §1.170A -14(g) of the Treasury Regulations, exploration for, extraction or removal of any mineral resource (which may include, but is not limited to, sand, gravel, rock, soil, peat, coal, uranium, oil, oil shale, natural gas or other hydrocarbons) by any surface mining method or any other method in a manner inconsistent with the Purposes of this Easement is prohibited. Because Grantor does not own the mineral rights associated with the Property, a mineral remoteness letter, on file with the Trust, was prepared by Rare Earth Science, LLC on January 26, 2011 finding that the likelihood of surface mining on the Property is so remote as to be negligible, in compliance with IRC § 170(h) and Treas. Reg. §1.170A- 14(g). In order to satisfy the intent of this paragraph, any future mineral development on the Property shall occur as follows: a. Trust's Participation in Future Mineral Agreements. Grantor shall notice the Trust prior to entering into any mineral leases, surface use agreements, non surface use agreements, damage agreements, rights -of -way or other easements (collectively "mineral agreements ") related to mineral development on the Property that may be required by a third party interest - holder in mineral rights underlying the Property. The Trust shall have the same legal rights as Grantor to review and participate in negotiations for proposed mineral agreements in order to direct the development of mineral resources to occur by those methods having no more than limited, localized, temporary and reclaimable impacts on the Property, which impacts must not be irremediably destructive of the Conservation Values (in accordance with IRC §170(h) and Treas. Reg. §1.170A-14(g)). The Trust's participation is not intended to deny any third party's ultimate right to develop minerals underlying the Property, and the Trust shall claim no rights to proceeds or royalties from such development. Grantor shall retain sole execution authority for all mineral agreements. Any mineral agreements entered into after this date shall, at a minimum, include the following: 1) Reference to this Easement and summary of the Conservation Values; 2) Acknowledgement that the agreement is subordinate and subject to the terms of this Easement to the degree legally possible; Vac 060611 13 3) Only the minimum structures, infrastructure, and other disturbance or impacts to the Property shall be permitted as reasonably necessary to mineral development; non - surface occupancy methods of mineral development are preferred; 4) All impacted sites associated with mineral development shall be recontoured and revegetated, and any damage to the Property or its Conservation Values restored, to as close to the Property's original state as possible upon completion of active drilling or mineral development operations; any structures required to remain upon the Property for more than one year shall be concealed from public view and constructed and maintained in a manner not damaging to the Conservation Values. b. Current Oil and Gas Leases. There are no oil and gas or other mineral leases on or affecting the Property at this time. H. Water Resources. Grantor shall not, divert, dam, pollute, drain, dredge, or otherwise alter Brush Creek or other naturally - occurring streams, springs, lakes, ponds, designated wetlands or other surface or subsurface water features on the Property in a manner that degrades or destabilizes their natural banks or shorelines. Grantor may expand or create wetlands along Brush Creek in accordance with all applicable regulations and the following paragraph, or construct and maintain ponds and irrigation infrastructure in accordance with Section 8.1.F(b). I. Water Rights. The following water rights are included with this grant and burdened by this encumbrance: a. Water Rights Included. Grantor agrees to include all water rights beneficially used on the Property in this Easement pursuant to C.R.S. §38- 30.5 -102 (the "Water Rights "). The Water Rights consist of all of Grantor's rights, title, and interests in and to the water and water rights described in Exhibit C, together with all associated canals, ditches, laterals, head gates, springs, wells, ponds, reservoirs, water shares and stock certificates, water allotments, contracts, units, permits, easements and rights of way, and irrigation equipment; b. Permitted Water Uses. Grantor shall have the right to continue recent historic use of the Water Rights on the Property for irrigation, agricultural purposes, and protection and preservation of the Conservation Values; c. Restrictions on Water Rights. The Water Rights may not: (1) be changed to or used for municipal, industrial, or commercial uses or any other new uses; (2) be changed for use other than on the Property; (3) be sold or legally separated from the Property; or (4) be changed via a change in point of diversion, quantity, or type or place of use, except upon receipt of the Trust's written determination that such changes are consistent with the Purposes of this Easement; V3c 060611 14 d. Protection of Water Rights. If Grantor fails to continue the recent historical use of the Water Rights on the Property in such a way that the Water Rights should become subject to a threat of abandonment, by action or inaction, Grantor shall provide the Trust a copy of any written notice received from any state water official concerning the use, or possible abandonment, of the Water Rights. If the Trust discovers that the Water Rights are subject to a threat of abandonment, the Trust shall give Grantor written notice of such threat. If, and only if, Grantor fails to cure the threat of abandonment within 90 days of receiving such notice from the Trust or state, the Trust shall, in addition to any other remedies available to the Trust under this Easement or law, have the right, but not the obligation, to: (1) enter upon the Property and undertake any and all actions reasonably necessary to continue the historical use of the Water Rights; (2) seek removal of the Water Rights from the decennial abandonment list; (3) seek to change the Water Rights to another use consistent with the Purposes of this Easement; and (4) sell, lease or otherwise convey all or part of such Water Rights to the Colorado Water Conservation Board or other then - qualified entity for the specific conservation purpose of protecting or enhancing instream flows or water levels in streams, rivers, lakes and/or reservoirs. Grantor agrees to cooperate in any manner necessary to accomplish the Trust's election, which may include authorizing the Trust to file for and obtain any administrative or judicial approvals; e. Effect of Loss. No loss of Water Rights through injury or abandonment, or conversion of the Water Rights as set forth above, shall be considered a severance of the title to the Water Rights from the Property or as basis for extinguishment of this Easement; f Temporary Instream Flow Use of Water Rights. The Parties recognize that certain environmental conditions, such as drought may pose a greater threat to the environmental quality and ecological diversity of streams, rivers, lakes and reservoirs than to the Conservation Values. The Parties therefore agree that Grantor may enter into water leases, contracts, emergency water loans, or similar agreements with the Colorado Water Conservation Board or other qualified entity for conservation purposes to temporarily increase instream flows and/or water levels in streams, rivers, lakes, and/or reservoirs, provided that: (1) the Trust has given its approval to such arrangements; and (2) the Water Rights shall not be used for such uses more than three out of every ten years without a written determination by the Trust that such use would not jeopardize the long -term protection of the Conservation Values. 8.3. Other Restricted Uses and Practices. A. Subdivision and Ownership. Grantor may not divide or subdivide (including de facto subdivision) the Property into more than one parcel of land without the approval of the Trust. At all times the Property shall be owned as a single parcel subject to this Easement. Ownership of the single parcel by joint tenancy or tenancy in common is V3c 060611 15 permitted; however, actions to partition or condominiumize the Property are prohibited; B. Commercial and Industrial Activities. Grantor shall not conduct industrial activity on the Property, and may only conduct commercial activity in a manner consistent with the terms and Purposes of this Easement, and in accordance with the Management Plan. C. Recreation. Non - motorized recreational uses for the public such as hiking, horseback riding, mountain biking, cross - country skiing, and hunting are permitted on the Property in a manner consistent with Sections 8.1.B and 8.1.E above. 9. ACCESS The general public shall have access to the Property in accordance with Section 8.1.E, Trails, and 7.3.C, Recreation, subject to any restrictions or regulations of the Grantor necessary and appropriate to protect public health and safety (including seasonal wildlife closures, and closures during construction, maintenance, or for emergency or administrative purposes), and to protect the Property's scenic and natural Conservation Values. Grantor must ensure that any public access is consistent with Colorado's recreational use statute C.R.S. § 33 -41 -101 et seq. and provides indemnity to the Trust for the public's access to and use of the Property. 10. REPRESENTATIONS AND WARRANTIES Grantor represents and warrants that, after reasonable investigation and to the best of its knowledge: 10.1. Except for fuels customarily used or transported in connection with agricultural and construction activities; no substance defined, listed, or otherwise classified pursuant to any federal, state, or local law or regulation as hazardous, toxic, polluting, or otherwise or threatening to human health or the environment exists or has been used or released on the Property; 10.2. There are not now any underground storage tanks located on the Property, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable laws and regulations; 10.3. Grantor and the Property are in compliance with all federal, state, and local laws and regulations applicable to the Property and there is no existing, pending or threatened litigation affecting or relating to the Property; 10.4. Grantor has good and sufficient title to the Property and has lawful authority to grant and convey the Easement, that any mortgages or liens on the Property are subordinate to the terms of this Easement, and that Grantor shall warrant and forever defend the title to the Easement against all and every person or persons lawfully claiming V3c 060611 16 by, through or under Grantor, the whole or any part thereof, except for rights -of -way, easements, restrictions, covenants and mineral reservations of record. 11. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED ACTIONS The purpose of requiring Grantor to notify the Trust before undertaking certain activities and uses of the Property, as identified in Section 8 or elsewhere, is to afford the Trust an opportunity to update its records and, if approval is required, to ensure that the activities in question are consistent with the terms and Purposes of this Easement. Grantor shall notice Trust and seek its approval, according to Section 12 below, for proposed activities or uses when there is a question as to consistency with the terms or Purposes of the Easement or protection of the Conservation Values. Whenever notice and the Trust's approval are required, Grantor shall notify the Trust in writing not less than 60 days prior to the date Grantor intends to undertake the activity in question, and describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit the Trust to make an informed judgment as to the activity's consistency with the terms and Purposes of this Easement. Whenever notice is required without the Trust's approval, Grantor shall notify the Trust in writing not less than 30 days in advance of the proposed activity, unless this Easement provides otherwise. 12. THE TRUST'S APPROVAL Whenever this Easement requires that Grantor obtain the Trust's approval for any activity or use of the Property, or if Grantor desires approval for any activity or use not clearly consistent with the terms or Purposes of the Easement, such approval shall be given in the Trust's reasonable discretion, according to whether the Trust determines that such activity will not damage the Conservation Values, which burden of proof lies with the Grantor. The Trust's approval may be withheld in its reasonable discretion if the Trust determines that the proposed activity would damage the Conservation Values or be otherwise inconsistent with the terms and Purposes of this Easement. The Trust shall set forth its determination, and the reason(s) for the determination, in writing to Grantor within 30 days of receipt of Grantor's written notice and request for approval (as described in Section 11, above). In the event the Trust should withhold its approval, it may also specify to Grantor any modifications to the request that might render the request consistent with the terms and Purposes of the Easement. 13. TRUST'S REMEDIES: ENFORCEMENT The Trust shall have the right to prevent and correct or require correction of violations of this Easement. The Trust accepts no responsibility to monitor for or enforce violations of local, state or federal laws, codes, or regulations, or third party contracts affecting the Property now or in the future, by third parties or the public, except to the degree that any such violations may damage the Conservation Values, or be otherwise inconsistent with the Purposes or terms of this Easement, in which case, the Trust may elect to enforce, pursuant to subsection 14.5. V3c 060611 17 If the Trust finds what it believes is a violation, or a threat of a violation of this Easement, the Trust shall notify Grantor, the Board, the Town and the City of the nature of the alleged violation. Upon receipt of this notice, Grantor shall immediately discontinue any activity that could increase or expand the alleged violation and shall either: (a) restore the Property within 60 days as is best possible to its condition prior to the violation, or if immediate restoration is not possible, Grantor shall submit a restoration plan to the Trust (with a copy to the Board, the Town and the City) within 60 days; or (b) provide a written explanation to the Trust (with a copy to the Board, the Town and the City) of the reason why the alleged violation should be permitted. If the Trust is not satisfied with Grantor's written explanation or restoration actions, the Parties agree to meet as soon as possible to resolve their difference. If a resolution cannot be achieved at the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 13.1, below. At any time, including if Grantor does not immediately discontinue any activity that could increase or expand the alleged violation, or if the Trust believes an ongoing, imminent, or threatened activity violates the Easement, the Trust may take immediate legal action to stop the activity without prior notice to Grantor, without waiting for the period provided for cure to expire, and without waiting for the 60 -day mediation period to expire. The Trust may bring an action at law or in equity, ex parte as necessary, in a court of jurisdiction to enforce the terms of this Easement and to enjoin a violation by temporary or permanent injunction, which may require restoration of the Property to the condition that existed prior to the violation. The Trust's remedies described here shall be in addition to all remedies now or hereafter existing at law or in equity, and shall include, without limitation, the right to recover damages for violation of the terms of this Easement or injury to the Conservation Values, including damages for the loss of scenic, aesthetic, or environmental values. The Trust, may apply any damages recovered to the cost of undertaking restorative, remedial or corrective action on the Property without limiting Grantor's liability for such damages or corrective action. Enforcement of the terms of this Easement shall be at the sole discretion of the Trust, and any forbearance by the Trust to exercise its rights under this Easement shall not be construed to be a waiver by the Trust of its rights, or of any term(s) of the Easement, including any subsequent breach of the same or other term(s) of this Easement. No delay or omission by the Trust in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. The failure of the Trust to discover a violation or to take immediate legal action shall not bar the Trust from doing so in the future. All reasonable costs incurred by the Trust in enforcing the terms of this Easement, including, without limitation, costs of pursuing legal action and reasonable attorney's fees, and costs of restoration necessitated by Grantor's violation of the terms of this Easement, shall be borne by Grantor, unless a court finds that the Trust acted in bad faith in seeking enforcement, in which case, the Trust shall pay Grantor's court- awarded costs and attorney fees. 13.1. Mediation. If a dispute arises between the Parties concerning the consistency of any proposed activity with the terms of this Easement, and Grantor agrees not to proceed with the activity pending resolution of the dispute, either Party may refer the dispute to mediation by written request to the other. Within 10 days of the receipt of such request, V3c 060611 18 the Parties shall select a trained and impartial mediator, preferably with experience in real property law and land conservation. If the Parties are unable to agree on a mediator, or no such experienced mediator is available, then the Parties shall each select a qualified mediator and those two mediators shall select a mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance with the following guidelines: A. Purpose. The purpose of the mediation is to: (a) promote discussion between the Parties; (b) help the Parties develop and exchange information concerning the issues in dispute; and (c) help the Parties develop proposals that will enable them to arrive at a mutually acceptable resolution. The mediation is not intended to result in or be interpreted as resulting in any modification or amendment of the terms, conditions, or restrictions of this Easement; B. Participation. The mediator may meet with the Parties and their counsel jointly or ex parte. The Parties agree that they will participate in the mediation process in good faith and expeditiously, except in cases where the Trust believes that there is ongoing damage to Conservation Values, in which case the Trust can suspend its involvement in the mediation to remedy this threat of ongoing violation. Representatives of the Parties with settlement authority will attend mediation sessions as required by the mediator; C. Confidentiality. All information presented to the mediator shall be confidential and may be disclosed by the mediator only with the consent of the Parties or their respective counsel. The mediator shall not be subject to subpoena by any Party in any subsequent litigation; D. Time Period. Neither Party shall be obligated to continue the mediation process beyond a period of 60 days from the date of the initial meeting with the mediator, or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution. The Parties shall each bear 50% of the mediator's fees. 14. COSTS, LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE 14.1. Costs, Legal Requirements and Liabilities. Grantor retains all responsibilities and obligations and shall bear all costs and liabilities related to the ownership, operation, and maintenance of the Property, including the payment of property and other taxes related to the Property, and maintenance of liability insurance coverage. Grantor shall make best efforts to keep the Property free of any liens arising out of any work performed for, materials famished to, or obligations incurred by Grantor. Nothing in this Easement shall be interpreted as prohibiting Grantor from obtaining loans secured by deeds of trust encumbering the Property, provided any such deeds of trust are subordinate to this Easement; V3c 060611 19 14.2. Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability of the Trust to exercise physical or managerial control over the day -to -day operations of the Property, or over any of Grantor's activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ( "CERCLA "), and any Colorado state law counterpart; 14.3. Hold Harmless. The Grantor agrees to use its best faith efforts to hold the Trust harmless from liability arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except to the extent due to the negligence of the Trust or any of its agents; (2) the obligations specified in Paragraph 14.1 herein; and (3) the presence or release of hazardous or toxic substances on, under or about the Property, subject to the current constraints or limitations of Colo. Const. Art. XI, Section 1, as amended from time to time, which constraints or limitations the County believes currently prohibit it from adopting a strict obligation to hold harmless the Trust. Nothing contained herein waives or is intended to waive any protections that may be applicable to the Grantor under the Governmental Immunity Act, Section 24 -10 -101 et seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. Grantor further agrees to add the Trust as an additional named insured on its comprehensive general liability insurance policy. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. Section 24 -10- 114(1), as it may be amended from time to time, and shall provide the Trust with thirty (30) days advance written notice prior to cancellation or termination. Grantor shall, upon written request therefore from the Trust or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. Without limiting the foregoing, nothing in this Deed shall be construed as giving rise to any right or ability in the Trust or the Board, nor shall the Trust or the Board have any right or ability, to exercise physical or managerial control over the day -to -day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. 14.4. Waiver of Certain Defenses. Grantor hereby waives any defense of laches, estoppel, or prescription, including the one year statute of limitations for commencing an action to enforce the terms of a building restriction or to compel the removal of any building or improvement because of the violation of the same under C.R.S. § 38 -41 -119, et seq. 14.5. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle the Trust to bring any action against Grantor for any injury to or V3c 060611 20 change in the Property resulting from causes beyond Grantor's control or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property. Notwithstanding the foregoing, Grantor shall be responsible for preventing, monitoring, and enforcing activities by third parties, including the public, on or affecting the Property that may violate the terms of this Easement. The Trust retains the right to enforce the terms of this Easement against third parties for violations of the Easement or damage to the Property. 15. EXTINGUISHMENT AND CONDEMNATION 15.1. Extinguishment. The Parties agree that any changes in the economic viability of the uses permitted or prohibited by this Easement, or changes to neighboring land and its use shall not be deemed circumstances or conditions justifying the termination or extinguishment of the Easement. In addition, the inability of Grantor, or Grantor's heirs, successors or assigns, to implement any or all of the uses permitted under this Easement shall not impair the validity of the Easement, or be considered grounds for termination or extinguishment of this Easement. If circumstances arise in the future that render the Purposes of this Easement impossible to accomplish, the Easement can only be terminated or extinguished, in whole or in part, by judicial proceedings after a court of competent jurisdiction has explored all options for importing other Purposes for the Easement pursuant to the cy pres doctrine. Each Party shall promptly notify the other when it first learns of such circumstances. The amount of the proceeds to which the Trust shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination, shall be determined, unless otherwise provided by Colorado law at the time, in accordance with the Proceeds paragraph below, and such proceeds shall be used by the Trust in a manner consistent with the conservation Purposes of the original Easement contribution, as required by §1.170A- 14(g)(6)(i) of Treasury Regulations; 15.2. Condemnation. If all or any part of the Property is taken by condemnation, or by purchase in lieu of condemnation by any public, corporate, or other authority so as to terminate the Easement in whole or in part, Grantor and the Trust shall act jointly to recover the full value of the interests in the Property subject to the taking or in -lieu purchase, and all damages resulting there from. All expenses reasonably incurred by Grantor and the Trust in connection with the taking or in -lieu purchase shall be paid out of the amount recovered. The Trust's share of the balance of the amount recovered shall be determined by the Easement Value Ratio set forth in Proceeds paragraph below; 15.3. Proceeds. This Easement constitutes a real property interest immediately vested in the Trust, the value of which has not been determined as of this date. Should the Easement be taken for public use or otherwise terminated according to the Extinguishment and Condemnation paragraphs above, The Trust and Third Party Beneficiaries as enumerated in Section 23.11 shall be entitled to compensation for their V3c 060611 21 proportionate interests, which shall reflect the proportionate monetary contribution of each toward the $17,000,000 purchase price of the Property by the County, which is as follows; the Board's is 14.71% ($2.5 million contributed), the Town is 11.76% ($2 million contributed), the City is 5.9% ($1 million contributed), the Trust is 2% (approximately $305 thousand contributed), and the balance of the interest (66 %) is held by the County based upon its contribution of the balance of $11,195,000. a. Reinvestment of Proceeds. In the event the Easement shall be wholly or partially extinguished, whether by condemnation or otherwise, reinvestment of the proceeds from such extinguishment shall be made in improvements to or stewardship of the subject Property or the adjacent open space parcels held by the Grantor, the Town or the City, or to other property or properties jointly agreed upon by the Parties, which, for the Easement, to the greatest extent possible, protect the same conservation values as the extinguished easement. If the Parties are unable to agree regarding the reinvestment of the proceeds from such extinguishment, the proceeds shall be divided according to the proportionate interests specified in Paragraph 15.3 above. 16. ASSIGNMENT OF EASEMENT a. This Easement is transferable, but the Trust may assign its rights and obligations under this Easement only to an organization that: (1) is a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder; (2) is authorized to acquire and hold conservation easements under Colorado law; (3) agrees in writing to assume the responsibilities imposed on the Trust by this Easement; and (4) is approved in writing as a transferee by the Board, the Town and the City, each in their individual discretion. The Trust shall provide the Board, the Town and the City with a written request to assign the Easement at least 45 days prior to the date proposed for the assignment transaction. b. The Board shall have the right to require the Trust to assign its rights and obligations under this Easement to a different organization if the Trust ceases to exist; is unable, or unqualified to enforce the terms and provisions of this Easement; or is unable to effectively monitor the Property for compliance with this Easement at least once every calendar year. Prior to any assignment under this Section 16.2, the Board shall consult with the Trust and provide Trust an V3c 060611 22 opportunity to address the Board's concerns. If the Board's concerns are not addressed to its satisfaction, the Board may require that the Trust assign this Easement to an organization designated by the Board that complies with Section 16.a (1), (2), and (3) above. Any organization designated by the Board must be approved by the Town and the City, in compliance with Section 16.a (4) above; c. If the Trust desires to transfer this Easement to a qualified organization having similar purposes as the Trust, but Grantor or the Board, the Town or the City has refused to approve the transfer, a court with jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed on the Trust by this Easement, provided that Grantor and the Board, the Town or the City shall have adequate notice of and an opportunity to participate in the court proceeding leading to the court's decision on the matter. d. Upon compliance with the applicable portions of this Section 16, the Parties shall record an instrument completing the assignment in official records of Pitkin County. Assignment of the Easement shall not be construed as affecting the Easement's perpetual duration and shall not affect the Easement's priority against any intervening liens, mortgages, easements, or other encumbrances. After such transfer, the Trust shall have no further obligation or liability under this Easement. The Trust has no obligation or liability under the 1999 Easement, pursuant to subsection 23.9 hereafter. 17. SUBSEQUENT TRANSFERS OF PROPERTY Grantor shall incorporate by reference the terms and conditions of this Easement in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property. Grantor further agrees to give written notice to the Trust and the Board of the transfer of any interest at least forty -five (45) days prior to the date of such transfer and may be required to pay the Board an Additional Board Refund under Section 18 below. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. Grantor further agrees to give written notice to the Town and the City of the transfer of any interest at least forty -five (45) days prior to the date of such transfer. Grantor, the Town and the City agree that any net proceeds from such transfer shall be reinvested in the maintenance and improvement of the Property. 18. ADDITIONAL REFUND TO THE BOARD, THE TOWN AND THE CITY The Board's Grant and contributions made by the Town and the City have provided partial consideration for Grantor's acquisition of fee title to the Property, associated water rights, and partial real estate interest in the Property above and beyond this Easement; therefore, any voluntary sale, conveyance, transfer, or other disposal of all or any portion of Grantor's interest V3c 060611 23 in the Property or associated water rights ( "Sale "), excluding any lease of the Property or the Water Rights to a third party in the ordinary course of using the Property for permitted purposes, shall constitute a material change to the Grant that shall require prior written approval from the Board, the Town and the City, and may require a separate refund to each entity of an amount to compensate the them for use of the their respective Grant or contributions, plus administrative costs (the "Additional Refund "), in addition to any payment that they may be entitled to receive under Section 15 above. 18.1. Amount. The amount of the Additional Refund shall be based upon a percentage of Grantor's net proceeds from the Sale (which shall be defined as the fair market value of the property being sold in the Sale, minus direct transaction costs) ( "Net Proceeds "). The Additional Refund shall be determined by: a) first dividing the Board's Grant and the Town's and the City's contribution amounts by the original purchase price for fee title to the Property; b) then by multiplying the resulting ratio (14.71% for the Board, 11.76% for the Town, and 5.9% for the City) by the Net Proceeds; and c) adding interest figured from the Grant payment date at the Prime Rate listed by the Federal Reserve Bank of Kansas City, Missouri that is most current on the effective date of the Sale. The Board may, in its sole discretion, waive the requirement for payment of interest or reduce the amount of interest due at the time of the Sale. The Additional Board Refund shall be paid to the Board in cash or certified funds on or before the effective date of the Sale. The Additional Refund to the Town or the City shall be reinvested as set forth in Paragraph 14.4 above. 18.2. Possible Exception to Refund Requirement. If a Sale occurs to a third party which is eligible to receive open space funding from the Board, and the Board has provided written confirmation of the third party's eligibility, Grantor shall not be required to pay the Board an Additional Board Refund, unless the Board determines in its sole discretion that one or more aspects of the Grant have changed that reduce the Grant project's scope from that of the original Grant as approved by the Board. (For example, if the Grantor proposed that the Grant project would include public access to the Property, and the Sale will result in substantially the same amount and type of public access, the Board will deem that a material change in the Grant project's scope has not occurred, and Grantor shall not be required to pay the Board an Additional Board Refund, unless another aspect of the Grant project has changed that reduces the Grant project's scope from that of the original Grant as approved by the Board). 19. NOTICES Any communication that either Party is required to give to the other under the terms of this Easement shall be in writing and physically delivered or sent by first class mail, postage prepaid, to the following addresses, or to such other address as either Party may designate in the future by written notice to the other. Other communications not required by this Easement may be in the form of email or other electronic communication: To Grantor: Pitkin County Board of County Commissioners V3c 060611 24 c/o Pitkin County Open Space and Trails Director 530 E. Main Street, 3rd Floor Aspen, CO 81611 Phone: 970- 920 -5203 Fax: 970 920 -5198 To the Trust: Aspen Valley Land Trust 320 Main Street, Suite 204 Carbondale, CO 81623 Phone: 970 - 963 -844 Fax: 970-963-8441 To the Board: Executive Director State Board of the Great Outdoors Colorado Trust Fund 303 East 17th Avenue, Suite 1060 Denver, CO 80203 To the Town: Town of Snowmass Village c/o Town Manager Snowmass Village, CO 81615 To the City: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 20. RECORDATION The Trust shall record this Easement in the official records of Pitkin County, Colorado and may re- record it at any time as may be required to preserve its rights in this Easement. 21. AMENDMENT If circumstances arise under which an amendment to or modification of this Easement or any of its exhibits would be appropriate, Grantor and the Trust may jointly amend this Easement so long as the amendment (a) is consistent with the Conservation Values and Purpose of this Easement, (b) does not affect the perpetual duration of the restrictions contained in this Easement, (c) does not affect the qualifications of this Easement under any applicable laws, (d) complies with the Trust's policies and procedures and the Board's procedures and standards for amendments (as such procedures and standards may be amended from time to time) and (e) receives prior written approval of the Board, the Town and the City. Any amendment must be in writing, signed by both Parties, and recorded in the records of the Clerk and Recorder of the county in which the Property is located. For the purposes of the Board's approval under item (e) above, the term "amendment" means any instrument that purports to alter in any way any Vac 060611 25 provision of or exhibit to this Easement. Nothing in this paragraph shall be construed as requiring the Trust, the Board, the Town or the City to agree to any particular proposed amendment. 22. TOWN AND CITY RIGHTS OF ENFORCEMENT Under this Easement, the Town and the City each are granted the right to enforce the terms of this Easement in order to protect the public investment in this Easement. The Town and/or the City may exercise this right of enforcement only after giving thirty (30) days notice to the Grantor, the Trust, the Town, the City and the Board of the alleged violation and the steps that are necessary to correct the alleged violation. Any enforcing parties shall use good faith efforts to implement a course of action agreeable to all such enforcing parties, provided, however, in the event the enforcing parties are unable to reach agreement on such actions, either party may, acting individually undertake such enforcement action, without any right to contribution from the other. 23. GENERAL PROVISIONS 23.1. Definitions. A. Parties. The terms "Grantor" and "the Trust, ", and any pronouns used in place of those terms, refer to, respectively, Grantor and Grantor's heirs, personal representatives, executors, administrators, successors and assigns, and the Trust and its successors and assigns. The term "Parties" refers collectively to both Grantor and Trust; B. Easement. The terms "Easement," "Conservation Easement," "Deed of Conservation Easement," and "Deed of Conservation Easement in gross" refer to this legal document and to the immediately vested interest in real property defined by Colorado Revised Statutes § §38- 30.5 -101 etseq.; C. Low - Impact. The term `low- impact" refers to activities or improvements whose location, use and construction have no or negligible surface impact on the Property and do not damage the Conservation Values (i.e. have no scenic impact from public trails and rights -of -way; do not result in earthmoving, recontouring of land, construction of roads or connection to utility lines; and do not damage rivers, wetlands, riparian areas or other sensitive wildlife habitat); D. Forestry Terms. The term "clear cutting" refers to cutting or removal of a stand of trees in which essentially all or most of the trees have been removed in one operation. The term "selective cutting" refers to cutting that removes only a portion of trees in a stand, and "thinning" refers to a treatment made to reduce stand density of trees primarily to improve growth, enhance forest health, or recover potential mortality. 23.2. Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Colorado; V3c 060611 26 23.3. Liberal Construction. This Easement shall be liberally construed in favor of the grant to effect the Purposes of the Easement and the policy and purpose of C.R.S. §38- 30.5 -101 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with ensuring continuation of the Purposes of the Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. The common law rules of disfavoring restrictions on the use of real property and construing restrictions in favor of the free and unrestricted use of real property shall not apply to interpretations of this Easement or to disputes between the Parties concerning the meaning of particular provisions of this Easement; 23.4. Severability. If any provision or application of any provision of this Easement, is found to be invalid, the remainder of the provisions shall be deemed severable and remain in full force and effect; 23.5. Entire Agreement. This instrument sets forth the entire agreement between the Parties with respect to the Easement and supersedes all prior discussions or agreements relating to the Easement; 23.6. No Forfeiture. Nothing contained in this Easement will result in a forfeiture or reversion of Grantor's title in any respect; 23.7. Joint and Several Obligation. The obligations imposed by this Easement upon Grantor shall be joint and several. If the Property's ownership, now or in the future, is by a single entity consisting of multiple parties including shareholders, partners, or members, that entity is required to notify its shareholders, partners, or members of the entity's and its parties' individual rights and responsibilities, including monetary or other obligations set forth in this Easement; 23.8. Successors. The covenants, terms, conditions, and, restrictions of this Easement shall be binding upon, and inure to the benefit of, the Parties hereto and Grantor's respective personal representatives, heirs, successors, transferees, and assigns, and the Trust's successors, transferees, and assigns, and shall continue as a servitude running in perpetuity with the Property; 23.9. Termination of Rights and Obligations. A Party's rights and obligations under this Easement terminate upon transfer of the Party's interest in the Easement or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer, including the County's and the Town's liability for acts or omissions occurring under the 1999 Conservation Easement as it encumbered the County Tract; 23.10. Captions. The captions in this instrument have been inserted solely for convenience of reference and shall have no effect upon construction or interpretation; 23.11. No Third Party Beneficiaries. This Easement is entered into by and between Grantor and the Trust, and is solely for the benefit of Grantor, the Trust, the Board, the Town and Vac 060611 27 the City and their respective successors and assigns for the purposes set forth herein, and does not create rights or responsibilities in any third parties beyond Grantor, the Trust, the Board, the Town and the City; 23.12. Change of Conditions. A change in the potential economic value of any use that is prohibited by or inconsistent with this Easement, or a change in any current or future uses of neighboring properties, shall not constitute a change in conditions that makes it impossible for continued use of the Property for conservation purposes and shall not constitute grounds for terminating the Easement in whole or in part; 23.13. Termination of the Board. In the event that Article XXVII of the Colorado Constitution, which established the Board, is amended or repealed to terminate the Board or merge the Board into another entity, the rights and obligations of the Board hereunder shall be assigned to and assumed by such other entity as provided by law, but in the absence of such direction, by the Colorado Department of Natural Resources or its successor. 23.14. Counterparts. The Parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be deemed an original instrument as against any Party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling; 23.15. Merger. Unless the Parties expressly state that they intend a merger of estates or interests to occur, no merger shall be deemed to have occurred hereunder or under any document executed in the future affecting this Easement; 23.16. Authority to Execute. Each Party represents that such Party has full power and authority to execute and deliver this Deed of Conservation Easement; to perform its obligations under this Easement; that the individual executing this Easement on behalf of said Party is fully empowered and legally authorized to do so; and that this Easement constitutes a valid, enforceable, and legally binding obligation of said Party. IN WITNESS WHEREOF, Grantor and the Trust have executed this Deed of Conservation Easement as of the date first written above. vac 0606 a 28 GRANTOR: By execution of this Amended and Restated Deed of Conservation Easement the County consents to and agrees to be bound the terms of this Easement and quitclaims to the Trust any interest it may have as a co- grantee of the 1999 Conservation Easement, described herein. BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic By: Rachel E. Richards, Chairwoman STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing document was acknowledged before me on this day of June, 2011, by Rachel E. Richards, Chairwoman of the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, a body corporate and politic. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: V3c 060611 29 ACCEPTED by the TRUST: ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation, By: Martha Cochran, Executive Director STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of June, 2011, by Martha Cochran as Executive Director of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: V3c 060611 30 CONSENT TO CONSERVATION EASEMENT: City of Aspen, Colorado a Colorado home rule municipal corporation By: Michael C. Ireland, Mayor STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing document was acknowledged before me on this day of June, 2011, by Michael C. Ireland, Mayor of the City of Aspen, Colorado, a Colorado home rule municipal corporation. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: Vac 060611 31 CONSENT OF TOWN: By execution of this Amended and Restated Deed of Conservation Easement the Town consents to the terms of this Easement, retains a right of enforcement as described in Section 22, herein, and quitclaims to the Trust any interest it may have as a co- grantee of the 1999 Conservation Easement, described herein. TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado Home Rule Municipality By: , Mayor By: , Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2011, by as Mayor of the Town of Snowmass Village, Colorado, and by as Town Clerk of the Town of Snowmass Village, Colorado. WITNESS my hand and official seal. [SEAL] Notary Public My commission expires: vac 060611 33 EXHIBIT A Legal Description of Property vac 060611 34 EXHIBIT B Survey [Map] of Property V3c 060611 35 EXHIBIT C Water Rights The "Water Rights" consist of the following: 1. 0.264 cubic feet per second from the Lemond Ditch Priority No. 37 weater right, originally decreed for 0.8 cfs in Civil Action No. 132, on May 11, 1889, with an appropriation date of June 7, 1882. 2. 0.33 cubic feet per second from the Lemond Ditch Priority No. 187 water right, originally decreed for 0.7 cfs in Civil Action No. 132, on May 11, 1889, with an appropriation date of April 2, 1888. 3. 2.118 cubic feet per second from the Lemond Ditch Second Enlargment Priority No. 446 water right, originally decreed for 4.5 cfs in Civil Action No. 3723, on August 25, 1949, with an appropriation date of September 1, 1936. vac 060611 36 EXHIBIT D Baseline Documentation Acknowledgment [Can opt instead to include acknowledgement in Baseline Paragraph of Easement Document] Grantor and the Trust acknowledge that each has read the " Conservation Easement Baseline Documentation Report," prepared by on , 20_, and that the report accurately reflects the condition of the Property subject to the Easement as of the date of conveyance of the Easement. ASPEN VALLEY LAND TRUST, [ <Grantor >, a a Colorado non - profit corporation <corporation/partnership, etc> By: By: Its Its Date: Date: OR FOR INDIVIDUAL: [INDIVIDUAL NAME] V3c 060611 37 Vlla. MEMORANDUM TO: Mayor Ireland and Aspen City Council THRU: Chris Bendon, Community Development Director GIAM FROM: Sara Adams, Senior Planner Q— RE: 518 West Main Street: Subdivision Review, First Reading, Ordinance No.Q4, Series of 2011. Second Reading is scheduled for July 25, 2011. MEETING DATE: June 27, 2011 APPLICANT /OWNER: feet of floor area (or 0.9:1 FAR) is proposed. Fat City Holdings, LLC, 402 Midland Park Place, Aspen, CO. STAFF RECOMMENDATION: Staff recommends that the Aspen City Council REPRESENTATIVE: grant Subdivision approval with conditions. Peter Fornell. SUMMARY: LocATION: The Applicant requests of the City Council 518 West Main Street, Lots '/2 0, P, and Subdivision approval. Q, Block 30, City and Townsite of Aspen, Colorado CURRENT ZONING & USE: `- - Located in the Main Street Historic District within the Mixed Use zone `~ district. 518 West Main Street currently contains a 19` century residence that was gutted by an internal fire and a circa. 1950s detached garage. The lot is approximately 7,500 square feet in size. PROPOSED LAND USE: The Applicant requests approval to re- Image 1: 518 West Main Street, subject property habilitate the historic home, demolish the garage, and construct 2 new detached multifamily structures. The entire project is 100% affordable housing and the applicant requests approval to establish affordable housing credits for 24.0 full time equivalents. 11 deed restricted for sale affordable housing units are proposed. Approximately 7,100 square First Reading Staff Memo 518 West Main Street 06/27/2011 Page 1 of 7 LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals from City Council to develop 518 West Main Street: City Council Approvals: • Subdivision Review (Section 26.480) for the development of multi - family units. City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission. • Waiver of Fees (Section 26.610.100) for the development of affordable housing. City Council is the final review authority to waive or reduce impact fees (Parks and TDM /Air Quality). ** *Note: the project requires HPC Final Review after Subdivision Review which includes review of materials, architectural details, landscape, lighting, and the roof forms of the new buildings. PREVIOUS APPROVALS: Historic Preservation Commission 518 West Main Street is a designated historic property and is a contributing resource within the Main Street Historic District. Pursuant to the Land Use Code, the Historic Preservation Commission (HPC) reviewed and approved Conceptual Major Development related to site plan, mass, form, height and scale of the project; granted a reduction in the parking requirement from the required 11 spaces, or 1 space per unit, to 8 required onsite spaces; granted a reduction in the Trash/Utility requirement related to height and depth; and granted a side yard setback variance for light wells proposed adjacent to the Ullr Commons (west side yard). HPC included a condition of approval that the roof forms for the two new detached buildings be changed to a sloped roof and further developed for review and approval during Final Review (in addition to the typical Final Review items - materials, landscape, lighting, windows, architectural details, etc.). The HPC Resolution is attached as Exhibit D. ..I • " k.m.. re Pt- 1/4 —rye x t�d� In dffild a• s::. .' ii Image 2; Historic photograph of 518 West Main Street (at center) First Reading Staff Memo 518 West Main Street 06/27/2011 Page 2 of 7 Planning and Zoning Commission The Planning and Zoning Commission reviewed and approved Growth Management for the Development of Affordable Housing and the Establishment of Affordable Housing Credits for 24.0 full time equivalents for the proposed 11 deed restricted units. The applicant proposes a mix of affordable housing unit Categories ranging from 2 to 4. All of the units with the exception of units 8 and 9 exceed the minimum net livable area specified in the Aspen/Pitkin County Housing Authority (APCHA) Guidelines. The Housing Office recommends approval of the 2% reduction for units 8 and 9. The approved housing units are described in Table 1 below. The Commission discussed at length whether an appropriate balance was achieved between providing adequate parking for the affordable housing units and maintaining the proposed density on the site (8 spaces for 11 units). The Commission recommends that "future reviews of this project retain the current housing mix and require 1 parking space per unit." Table 1: Unit breakdown _ _ Proposed net Minimum Unit size # of FTEs Unit # Bedrooms Category livable area size difference generated required 1 2 4 1,013 950 63 2.25 2 2 2 912 850 62 2.25 3 2 2 926 850 76 2.25 4 2 3 980 950 30 2.25 5 2 3 980 950 30 2.25 6 1 2 647 600 47 1.75 7 studio 2 446 400 46 1.25 8 2 2 836 850 (14) 2.25 9 2 2 836 850 (14) 2.25 10 2 2 858 850 8 2.25 11 3 2 1,175 1,000 175 3.00 Totals 21 9,609 24 _ PROJECT SUMMARY: The Applicant proposes the following: • Relocate the historic home toward the southeast on the lot and construct two new detached buildings: one fronting Main Street and one behind the historic resource. • 100% affordable housing project with 11 affordable housing units the majority of which are 2- bedroom Category 2 units. • The historic home is proposed to be divided down the middle to create 2 units that each occupy the basement and first floor. A total of 2 units are proposed. First Reading Staff Memo 518 West Main Street 06/27/2011 Page 3 of 7 • The new Main Street building proposes 3 units that span the basement and first floors and 3 units that occupy the second and third floors, and a studio unit located on the first floor. A total of 7 units are proposed. • The new building located behind the historic home is proposed to have an accessible unit located entirely on the first floor; and a unit that spans the second and third floor. A total of 2 units are proposed. • 8 onsite parking spaces accessed off of the rear alley are proposed. As mentioned previously, HPC reduced the parking requirement from 11 spaces to 8 onsite spaces, with the condition that the applicant propose a parking alternative (possibly off -site or cash in lieu payment) to mitigate for the 3 spaces for discussion during Final HPC Review. • The applicant is interested in selecting qualified purchasers for 5 of the 11 affordable housing units. This applies to the initial sale only; subsequent sales would be processed through the housing lottery. Table 2: Mixed Use Zone District Requirements vs. Proposed Dimensions for 518 W. Main St. Underlying Mixed Use Zone Dimensional Requirement District Requirements Proposed Dimensions Minimum Gross Lot Area 3,000 sq. ft. 7,500 sq. ft. Minimum Net Lot Area Not applicable for Multi- n/a per dwelling unit family housing development. Minimum Lot Width 30 ft. 75 ft. Minimum Front Yard 10 ft. 10 ft. for both buildings. Setback Minimum Side Yard East side yard = 5 ft. Setback 5 ft. West side yard = 1.5 ft.' Minimum Rear Yard 5 fr. 5 fr. Setback 28 ft., may be increased to 32 Maximum Height ft. through Commercial Design Approximately 28 ft. Review. Minimum Distance 10 ft. Approximately 10 ft. between Buildings ' HPC granted a setback variance for three light wells in the west side yard, adjacent to the Ullr Commons. First Reading Staff Memo 518 West Main Street 06/27/2011 Page 4 of 7 Dimensional Requirement Underlying Mixed Use Zone Proposed Dimensions District Requirements Minimum 20 ft. wide x 10 ft. deep 0 ft. wide x 8 ft. deep x p x Utility/trash /recycle area, 10 ft. high 8.5 ft. high 2 , accessed off of (Pursuant to Section 26.575.060) the alley Pedestrian Amenity Space Not applicable to multi - family n/a housing development Maximum Floor Area Approx. 0.9:1 or 7,100 sq. ft. Ratio for Affordable 1:1 or 7,500 sq. ft. of floor area of floor area Housing STAFF COMMENTS: SUBDIVISION: Generally, there are two different types of subdivision: the actual division of land into two or more lots or parcels; and the creation of separate legal interests in one parcel. The development proposal before City Council is to create separate legal interests in one parcel. As mentioned previously, HPC had detailed discussions during Conceptual Review about the proposed mass of the new structures on the lot and appropriate building placement that preserves the integrity of the historic landmark and the Main Street Historic District. The new construction is detached from the landmark and adequate setbacks are proposed between the buildings to highlight the scale and importance of the 19 century home. Final HPC review addresses roof form, architectural details such as roof overhangs, window shapes and sizes, materials. Parking: The applicant has the ability to meet the parking requirement onsite by changing the proposal to 8 3- bedroom units which would require 8 onsite parking spaces (1 space per unit). The same number of full time equivalents would be generated for the purposes of the affordable housing credit program. While the parking requirement would be met by reducing density, affordable housing demand for 2- bedroom units would not be addressed. Staff finds that the meeting affordable housing demand for 2- bedroom units outweighs the importance of meeting the parking requirement onsite. As illustrated in Exhibit A, Staff finds that the Subdivision Review Criteria are met. The project is consistent with the goals of the Aspen Area Community Plan to develop affordable housing within the city limits and to promote historic preservation of Aspen's significant architecture. IMPACT FEE WAIVER OR REDUCTION: The Land Use Code authorizes City Council to exempt or to reduce by any amount the TDM /Air Quality Impact Fee and the Parks Development Impact Fee for affordable housing development. 2 HPC granted a reduction of the trash /utility/recycle area. First Reading Staff Memo 518 West Main Street 06/27/2011 Page 5 of 7 The historic home is exempt from impact fees as an incentive for historic preservation. The applicant requests a waiver of the impact fees. The impact fees for this project are as follows (note: impact fees are calculated at the time of building permit submittal; therefore the fees below reflect the regulations currently in effect): TDM /Air Quality Fee: 16 bedrooms x $498 = $7,968 1 studio x $398.40 = $398.40 Total TDM/Air Quality Impact Fee = $8,366.40 Parks Development Fee: 16 bedrooms x $4,429 = $70,864 1 studio x $3,543.20 = $3,543.20 Total Parks Development Fee = $74,407.20 Grand Total = $82,773.60 This is a policy discussion for City Council. Waiving or reducing impact fees encourages and supports affordable housing development; on the other hand, it displaces the impacts associated with Parks Development and Transportation Demand Management /Air Quality. REFERRAL AGENCY COMMENTS: The City Engineer, Fire Marshal, Utilities Department, Aspen Sanitation District, Housing Department, Environmental Health, Transportation, the Building Department and the Parks Department have all reviewed the proposed application and their requirements have been included as conditions of approval when appropriate. To address concerns about possible changes to the project that may result during building permit review, Staff included a condition of approval that any physical changes to the project that are required to comply with specific standards related to building permit review, for example site drainage standards, may require a land use review to amend the approvals. A detailed site plan including proposed drainage and storm water mitigation is required to be submitted to the Engineering Department for review prior to Final HPC approval. RECOMMENDATION: In reviewing the proposal, Staff believes that the project is consistent with the goals of the AACP and the applicable review standards in the City Land Use Code. Staff recommends approval of the project. 3 There are a total of 20 bedrooms and 1 studio proposed; however the Land Use Code exempts historic landmark structures from impact fees (20 — 4 = 16). First Reading Staff Memo 518 West Main Street 06/27/2011 Page 6 of 7 RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE): "I move to approve Ordinance No., Series of 2011, approving with conditions Subdivision on first reading." CITY MANAGER COMMENTS: ATTACHMENTS: EXHIBIT A — Subdivision Review Criteria. EXHIBIT B — Development Review Committee comments from April 20, 2011. EXHIBIT C — Housing Board Referral comments dated June 1, 2011. EXHIBIT D —HPC Resolution No. 4, Series of 2011. EXHIBIT E — HPC Minutes dated February 23, 2011 and March 23, 2011. EXHIBIT F — P &Z Resolution No. 11, Series of 2011 EXHIBIT G — P &Z Minutes dated May 17, 2011. EXHIBIT H - Application First Reading Staff Memo 518 West Main Street 06/27/2011 Page 7 of 7 ORDINANCE NO.,A, (SERIES OF 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING SUBDIVISION FOR THE DEVELOPMENT OF THREE MULTI - FAMILY BUILDINGS, INCLUDING ELEVEN AFFORDABLE HOUSING UNITS FOR THE PROPERTY LOCATED AT 518 WEST MAIN STREET, LEGALLY DESCRIBED AS LOTS P, Q, AND 'h OF LOT 0, BLOCK 30, CITY OF ASPEN, PITKIN COUNTY, COLORADO. PARCEL NO. 2735-124-43-006 WHEREAS, the Community Development Department received an application from Fat City Holdings manager Peter Fomell requesting approval of Subdivision to redevelop 518 West Main Street by rehabilitating the historic home and constructing two (2) new detached multi - family structures, for a total of 3 buildings on the site, with the entire project containing eleven (11) affordable housing units equivalent to twenty -four (24) full time equivalents; and, WHEREAS, the property is located within the Mixed Use (MU) Zone District and is included on the Aspen Inventory of Sites and Structures as a local historic landmark and a contributing resource within the Main Street Historic District; and, WHEREAS, at the March 23, 2011 meeting of the Historic Preservation Commission, continued from February 23, 2011, the Historic Preservation Commission approved Resolution No. 4, Series of 2011, by a four to two ( 4 — 2) vote approving Demolition, Relocation, Setback Variances, Conceptual Major Development review, a reduction of the parking requirement to 8 onsite parking spaces, and a reduction of the dimensions of the trash, utility and recycle area; and, WHEREAS, pursuant to Section 26.480, the City Council may approve a Subdivision, during a duly noticed public hearing after considering a recommendation from the Planning and Zoning Commission made at a duly noticed public hearing, comments from the general public, a recommendation from the Community Development Director, and recommendations from relevant referral agencies; and, WHEREAS, at the May 17, 2011 meeting of the Planning and Zoning Commission, the Planning and Zoning Commission approved Resolution No. 11, Series of 2011, by a five to zero (5 — 0) vote approving 11 Growth Management allotments for the development of affordable housing, approving the establishment of affordable housing credits equal to 24.0 full time equivalents, and recommending approval of Subdivision to City Council; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Transportation Department, Utilities Department, Fire Protection District, Ordinance No. , Series of 2011 Page 1 of 8 Environmental Health and Parks Department as a result of the Development Review Committee meeting; and, WHEREAS, upon review of the application and the applicable code standards, the Community Development Department recommended approval of Subdivision Review; 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: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves Subdivision subject to the following conditions. Section 2: Subdivision Agreement The Applicant shall record a Subdivision agreement (hereinafter "Agreement ") that meets the requirements of the Land Use Code within 180 days of approval. The 180 days shall commence upon the granting of a Certificate of Appropriateness by the Historic Preservation Commission. The Applicant shall condominiumize the units after substantial completion of the project. The condominium plat(s) shall be reviewed administratively. The Agreement shall require recordation of a condominium plat prior to issuance of a Certificate of Occupancy. Section 3: Dimensional Requirements The approved dimensional requirements are as follows: Table 1: Dimensions for 518 West Main Street Dimensional Requirement Proposed Dimensions Minimum Gross Lot Area 7,500 sq. ft. Minimum Net Lot Area n/a per dwelling unit Minimum Lot Width 75 ft. Minimum Front Yard 10 ft. for both buildings. Setback Minimum Side Yard East side yard = 5 ft. Setback West side yard = 1.5 ft. Ordinance No. , Series of 2011 Page 2 of 8 Minimum Rear Yard 5 ft Setback Maximum Height Approximately 28 ft. Minimum Distance Approximately 10 ft. between Buildings Minimum 20 ft. wide x 8 ft. deep x 8.5 Utility /trash /recycle area ft. high, accessed off of the (Pursuant to Section 26.575.060) alley Pedestrian Amenity Space n/a Maximum Floor Area Approximately 0.9:1 or 7,100 Ratio for Affordable sq. ft. of floor area Housing Section 4: Certificate of Appropriateness for Development of a Historic Landmark The Applicant is required to receive a Certificate of Appropriateness for the Development of a Historic Landmark prior to submission of a building permit. Section 5: Building Permit Application The building permit application shall include the following: a. A copy of the final Ordinance and recorded P &Z and HPC Resolutions. b. The conditions of approval printed on the cover page of the building permit set. c. A completed tap permit for service with the Aspen Consolidated Sanitation District. d. A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which meets adopted city standards. e. An excavation stabilization plan and drainage report pursuant to the Building Department's requirements and construction management plan (CMP). The CMP shall describe mitigation for: parking, staging /encroachments, truck traffic, noise, dust, and erosion/sediment pollution. f. A detailed excavation plan for review and approval by the City Engineer. g. Accessibility and ADA requirements shall be addressed to satisfactorily meet adopted building codes. h. A formal site plan indicating the location of the tree protection. i. A landscape plan proposing improvements for the Right of Way subject to landscaping in the ROW requirements, Chapter 21.20 as described below. Ordinance No. , Series of 2011 Page 3 of 8 Section 6: Engineering Final design and analysis shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. A site drainage design and storm water runoff mitigation measures shall be conceptually approved by the Engineering Department prior to Final HPC approval. If the drainage design cannot meet city standards, the design may need to be amended and may require review and approval by City Council and/or the Historic Preservation Commission. Due to the current condition of the sidewalk, curb and gutter abutting the property the sidewalk, curb and gutter shall be replaced prior to granting of a Certificate of Occupancy pursuant to city standards. Section 7: Environmental Health Prior to remodel or demolition, including removal of drywall, carpet, tile, etc., the state must be notified and a person licensed by the state to do asbestos inspections must do an inspection. If there is no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. Section 8: Parks Tree permit: The tree permit shall be submitted for approval prior to building permit submittal. Said permit shall outline protection of existing trees, drip line excavations and mitigation for any removals as referenced in Chapter 13.20 of the Aspen Municipal Code. A vegetation protection fence shall be erected at the drip line of each individual tree or groupings of trees remaining on site and their represented drip lines. No excavation, storage of materials, storage of construction backlit], storage of equipment, foot or vehicle traffic allowed within the drip line of any tree remaining on site pursuant to Aspen Municipal Code Section 13.20. Irrigation of trees is required throughout the entire length of the project. Any access across or through the area of protection is prohibited at all times. Protection for existing lilacs: Tree protection is required for the existing Lilacs located on the property. These protection measures shall meet the standards of the Parks Department and goals of the Historical Preservation Committee to be approved by the City Forester. ROW Improvements: Landscaping in the public right of way shall be subject to landscaping in the ROW requirements, Chapter 21.20. There shall be no plantings within the City ROW which are not approved first by the City Parks Department. Final plans shall show compliance with these requirements by way of new street trees, irrigation and sod, all of which is subject to approval by the City Forester. Concurrent with changes to the alignment of the Main Street sidewalk, the exposed area shall be re- vegetated and irrigated for a new parkway with sod. Coordination with the Parks Department shall be required to protect roots during installation of the irrigation system. An irrigation system shall be required the entire length of the ROW. Ordinance No. , Series of 2011 Page 4 of 8 Section 9: Affordable Housing 1. The units shall be deed - restricted as "for sale" units in accordance with the Aspen/Pitkin County Housing Authority Guidelines and transferred to qualified purchasers according to the Aspen/Pitkin County Housing Authority Guidelines. 2. The applicant shall be entitled to select first purchasers for five of the affordable housing units, subject to the Aspen/Pitkin County Housing Authority Guidelines. After initial sale, the units shall be sold through the Aspen/Pitkin County Housing Authority lottery system. 3. The deed - restriction shall be recorded prior to or at the time of recordation of the Condominium Plat and prior to transfer. 4. The following is approved: Table 2: Affordable Housing Unit details Unit # Bedrooms Category Proposed net # of FTEs livable area generated 1 2 4 1,013 2.25 2 2 2 912 2.25 3 2 2 926 2.25 4 2 3 980 2.25 5 2 3 980 2.25 6 1 2 647 1.75 7 studio 2 446 1.25 8 2 2 836 2.25 9 2 2 836 2.25 10 2 2 858 2.25 11 3 2 1,175 3.00 Totals 21 9,609 24 Section 10: Certificates of Affordable Housing Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Planning and Zoning Commission approved the issuance of Certificates of Affordable Housing Credits, such certificates to be granted subsequent to issuance of a Certificate of Occupancy for the project. Table 3: Certificates of Affordable Housing Unit Type Employee Housed Number of Units Certificates of Affordable Housing studio 1.25 1 1.25 One bedroom 1.75 1 1.75 Two bedroom 2.25 8 18 Three bedroom 3.00 1 3 Total 24 Section 11: Aspen Consolidated Sanitation District Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Soil Nails are not allowed in the Ordinance No. , Series of 2011 Page 5 of 8 public ROW above ACSD main sewer lines and within 3 feet vertically below an ACSD main sewer line. The old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements, before any and all soil stabilization measures are attempted and prior to ACSD releasing any and all permits. A separate ACSD permit is required. Section 12: Fire Department All structures, regardless of size, shall have installed approved life safety systems (i.e. fire sprinklers and fire alarms), and meet adopted city standards. Section 13: Utilities Department Requirements The Applicant shall comply with the City of Aspen Water System Standards and with Title 25 of the Aspen Municipal Code, as required by the City of Aspen Water Department. Section 14: School Lands Dedication Fee Pursuant to Land Use Code Section 26.620, School Lands Dedication, the Applicant shall pay a fee -in -lieu of land dedication prior to Building Permit issuance for the excavation/stabilization permit. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in effect at the time of Building Permit submittal. Section 15: Impact Fees Pursuant to Land Use Code Section 26.610, Impact Fees, the Applicant shall pay a Parks Development impact fee and Transportation Demand Management (TDM) /Air Quality impact fee assessed at the time of Building Permit application submittal and paid at Building Permit issuance for the excavation/stabilization permit. The amount shall be calculated using the methodology and fee schedule in effect at the time of Building Permit submittal. Section 16: 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 17: Financial Assurances - Performance Bond (a) The Applicant commits and agrees that before a Building Permit is issued for excavation/stabilization the 518 West Main Street development approved by this Ordinance, the Applicant shall provide to the City Building Department and the City Attorney for review and approval satisfactory evidence that the Applicant has in place sufficient financing to accomplish and complete the construction of the development, including all public improvements. Such financing may include, without limitation, a construction loan from an institutional lender or lenders and equity capital investments from the Applicant and /or third party investors. (b) Supporting cost estimates for all improvements covered by the requested Building Permit shall be prepared by the Applicant's General Contractor and shall be delivered to the City Building Department for review and approval before the Building Permit is issued. Ordinance No. , Series of 2011 Page 6 of 8 (c) The Applicant further commits and agrees that before a Building Permit is issued for the 518 West Main Street development approved by this Ordinance, the Applicant shall provide to the City Building Department and the City Attorney for review and approval a copy of a Performance Bond issued or committed to be issued to the Applicant's General Contractor by an institutional surety company pursuant to which the surety agrees to provide the funds necessary to complete the construction of the improvements covered by the Building Permit, and all public improvements required under the Subdivision Agreement. The Performance Bond shall name the Applicant and the City of Aspen as additional beneficiaries or insureds thereunder to grant to either or both of them a direct right of action under the Performance Bond in order to construct or finish public improvements, and to complete the construction of the improvements covered by the Building Permit. Section 18: Site Protection Fund The Applicant hereby commits and agrees that before a Building Permit is issued for the development approved by this Ordinance (the `Project'), the Applicant shall deposit with an "Escrow Agent" the sum of $100,000 in the form of cash or wired funds (the "Escrow Funds ") and will execute an Escrow Agreement and Instructions with the Escrow Agent which recites and agrees as follows: In the event construction work on the Project shall cease for sixty (60) days or longer (`work stoppage') prior to a final inspection by the City of the work authorized by the Foundation/Structural Frame Permit on the Project, then the City in its discretion may draw upon the Escrow Funds from time to time as needed for purposes of protecting and securing the Project site and improvements from damage by the elements and/or from trespass by unauthorized persons, and for purposes of improving the Project site to a safe condition such that it does not become an attractive nuisance or otherwise pose a threat to neighbors or other persons. The Escrow Funds or any remaining balance thereof shall be returned to Applicant upon completion by the City of a final inspection of the work authorized by the Foundation/Structural Frame Permit on the Project. The City shall be named a third party beneficiary of the Escrow Agreement with the express right and authority to enforce the same from time to time. Section 19: 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 Historic Preservation Commission, 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 20: 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 Ordinance No. , Series of 2011 Page 7 of 8 amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 21: 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. Section 22: A public hearing on this ordinance shall be held on the 25` day of July, 2011, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 27th day of June, 2011. Michael Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk 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 No. , Series of 2011 Page 8 of 8 Exhibit A Subdivision Review Sec. 26.480.050.Review standards. A development application for subdivision review shall comply with the following standards and requirements: A. General requirements. 1. The proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan. Staff Response: Staff finds that the proposed project is consistent with the Aspen Area Comprehensive Plan as described below: Managing Growth: • "Contain development with the creation of the Aspen Community Growth Boundary...to ensure development is contained and sprawl is minimized." (Goal D, pg 18) • "Foster a well - balanced community through integrated design that promotes economic diversity, transit and pedestrian friendly lifestyles, and the mixing of people from different backgrounds." (Goal E, pg 19) The project is located on Main Street within the Aspen Community Growth Boundary which encourages transit and pedestrian friendly lifestyles and contributes to diversity along Main Street. The Main Street Historic District historically represented a mix of residential properties along with commercial uses. The proposed residential multi - family project contributes to the residential aspects of the historic district. Transportation: • "The community seeks to provide a balanced, integrated transportation system for residents, visitors, and commuters that reduced congestion and air pollution. Walking, Bicycling and transit use is promoted to help us reach that goal." (Intent, pg 21) • "Structure new growth in the community on compact, mixed -use patterns that enable and support travel by foot, bicycle, and public transportation for all types of trips." (Policies, pg 22) The location of the project on Main Street fully supports community goals to promote alternative methods of transportation: a RFTA bus stop is already located in front of the project; sidewalks are located along Main Street, and bicycling routes are abundant. Housing: • "Create an affordable housing environment that is appropriately scaled and distributed throughout existing and new neighborhoods..." (Intent, pg 25) 518 West Main Street, 05/17/2011 Exhibit A- Subdivision Review Page 1 of 4 • "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) • "Development of affordable housing within the traditional town site should be encouraged so as to protect our open and rural lands." (Philosophy, pg 25 -26) • "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) • "Encourage greater participation by the private sector in developing affordable housing." (Goal E, pg 27) Historic Preservation: • "Do not approve `copytecture' solutions. Encourage sensitive additions and talk about compatibility in terms of `sympathetic, subservient, and contextual'." (Goal C, pg 40) • "Protect all buildings and sites of historic significance." (Goal F, pg 40) Design Quality: • "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) The 100% affordable housing project meets the goals of the Housing Chapter of the AACP by developing housing that is within the traditional townsite. The Historic Preservation, Housing and Design Quality goals are met through the balance of density, sensitive development and rehabilitation of a historic 19 century Miner's residence. The proposed development combines these goals into one project that promotes the Housing program and contributes to town's history by resurrecting a historic resource. The Historic Preservation Commission (HPC) approved the conceptual design of the project (massing, scale, proportion) with specific conditions related to the architecture to be addressed during Final HPC Review. 2. The proposed subdivision shall be consistent with the character of existing land uses in the area. Staff Response: The proposed project is consistent with the requirements and uses of the Mixed Use Zone District and existing land uses in the area. Staff finds this criterion is met. 3. The proposed subdivision shall not adversely affect the future development of surrounding areas. Staff Response: The proposed subdivision is technical in nature and as such shall not adversely affect future development. Staff finds this criterion is met. 4. The proposed subdivision shall be in compliance with all applicable requirements of this Title. 518 West Main Street, 05/17/2011 Exhibit A- Subdivision Review Page 2 of 4 Staff Response: The applicant represents that the project is in compliance with all applicable requirements of the Municipal Code. Any conflicts with the project meeting the requirement of this Title may result in the project requiring an amendment pursuant to the requirement in the Land Use Code, as described in the draft conditions of approval. Staff finds that this criterion is met. B. Suitability of land for subdivision. 1. Land suitability. The proposed subdivision shall not be located on land unsuitable for development because of flooding, 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 Response: The subject property is a generally flat site located on Main Street that is currently developed with a 19 century Miner' s cottage. Staff finds that this criterion is met. 2. 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 Response: Not applicable. 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. Staff Response: The applicant represents that the relevant improvements described at Chapter 26.580 are met in the proposed project. As mentioned previously, any changes that result from the project meeting the required standards listed in Chapter 26.580 may require an amendment to the project and associated land use reviews. 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. 518 West Main Street, 05/17/2011 Exhibit A- Subdivision Review Page 3 of 4 Staff Response: The applicant proposes a 100% affordable housing project. Growth Management allotments for the development of affordable housing were granted by the Planning and Zoning Commission. Staff finds this criterion to be met. E. School land dedication. Compliance with the School land dedication standards set forth at Chapter 26.620. Staff Response: The applicant agrees to comply with the applicable school land dedication standards. 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; Ord. No. 12, 2007, § §29, 30) Staff Response: Growth Management review for the development of affordable housing was granted by the Planning and Zoning Commission via Resolution No. 11 (Series 2011). Staff finds this criterion to be met. 518 West Main Street, 05/17/2011 Exhibit A- Subdivision Review Page 4 of 4 DRC Comments for 518 West Main Street Exhibit B Meeting Date: April 20, 2011 1 it 1>mmartmcnt Contact: Ed Van Walraven, 970/925 -5532 Comments: All structures, regardless of size, shall have installed approved life safety systems (i.e. fire sprinklers and fire alarms). I'.nAlrtnn1Cltal 1 ICalth Contact: Lee Cassin, 970/920 -5075 Comments: The City of Aspen's Environmental Health Department has reviewed the referenced land use submittal under authority of the Municipal Code of the City of Aspen, and has the following comments. Findings: • This project increases the volume of traffic on streets in and into Aspen by 80 additional trips /day, using standard Institute of Traffic Engineers Trip Generation Rates. These trips are not just trips made by residents, but include all trips generated by the project: residents, visitors, deliveries, maintenance personnel, and so on. This creates an additional 402 vehicle miles travelled (using Colorado Department of Public Health and Environment standards) which emits 11 pounds of PM -10 emissions into Aspen's air per day. Those figures are calculated after taking a reduction in trip generation rates for proximity to mass transit. • The project encourages alternative transportation use by the reduction in parking spaces and location close to bus service. • The project is in a location that allows residents to walk to nearby places of employment and shops and restaurants. Residents' trips represent a small proportion of the trips generated by the project, but the location of the project allows that portion of the trips to be made on foot or by bus. RECYCLING: The proposed reduction in size of the trash/recycling area is a concem and may be in conflict with the city's recycling ordinance. That is due to the fact that the ordinance requires all trash haulers to provide (and include in the basic trash service and rate) pickup of the following recyclables: comingled containers (glass, plastic, cans), office paper, newspaper and magazines, and cardboard. In addition, the ordinance prohibits putting grass clippings and leaves in trash, so associations generally make accommodation for those items as well. ASBESTOS Prior to remodel or demolition, including removal of drywall, carpet, tile, etc., the state must be notified and a person licensed by the state to do asbestos inspections must do an inspection. If there is no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. 518 West Main Street Exhibit B - DRC Comments Page 1 of 6 Utilities Dcpartmcnt Contact: Andy Rossello, 970/429 -1999 Comments: This is within our service area and we have capacity in our system to supply this project with water and electric. As there are no site plans yet it is very difficult to determine how this would be accomplished. We will comment and direct at Building permit review. We require all standards for water and electric distribution systems be met. .Aspcn ( onsolidatal',mutation Disv Contact: Tom Bracewell, tom @aspensan.com 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 are required with approval by ACSD before the District can commit to serving this application. The old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements, before any and all soil stabilization measures are attempted and prior to ACSD releasing any and all permits. A separate ACSD permit is required. 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. Where additional development would produce flows that would exceed the planned reserve capacity of the existing system (collection system and or treatment system) an additional proportionate fee will be assessed to eliminate the downstream collection system or treatment capacity constraint. Additional proportionate fees would be collected over time from all development in the area of concern in order to fund the improvements needed. The Applicant will have to pay 40% of the estimated tap fees for the anticipated building stub - outs prior to 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. 518 West Main Street Exhibit B - DRC Comments Page 2 of 6 Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. I rwinccrinr Dei nrtment Contact: Tricia Aragon, 970/429 -2785 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: General note: The design for the site must meet the Urban Runoff Management Plan Requirements. Below is a partial list: (a full review will be completed when there is enough information to review) Of particular concern is how the site will drain. For example if the Alley drains onto the property how will the property protect itself from this drainage. Additionally the site may need to protect itself from the 100 yr storm on Main Street. Not sure how this will be accomplished. Lastly the property will not be allowed to drain (greater than historical drainage) onto the neighboring properties there by negatively affecting them. Not sure how this will be accomplished. Sidewalk and Curb and Gutter: General note: All sidewalk, curb and gutter must meet the Engineering Standards as outlined in Title 21. Below is a partial list: (a full review will be completed when there is enough information to review) • Construction and Excavation Standards III F(3): Requires that the sidewalk is placed along the property line to provide adequate snow storage. As a result the sidewalk will need to be relocated. The sidewalk must be a minimum of 5 feet in width. • 21.16.090: Due to the current condition of the curb and gutter abutting the property the engineering dept will require that the curb and gutter be replaced prior to CO. Site: Curbing or curb stops along parking space 5, 6, and 7 will be required to protect the walkway areas from the parking. Note if curbing is used keep in mind that Parking space 5, 6, and 7 will reduce the 3.8 foot walkway in front of the spaces down to 2.3 feet by the trash service area. As a result this area will not be accessible. 518 West Main Street Exhibit B - DRC Comments Page 3 of 6 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 main street corridor, the encroachments that will be allowed will be limited to the off season. Excavation Stabilization — Due to the proximity of the neighboring property and the excavation of the building the City will require an excavation stabilization plan prior to building permit submittal. System Development Fee or Fee in Lieu —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. However, the Fee in lieu is currently before Council and may be in affect when this project submits for building permit. 13uildinui Dep,n uncut Contact: Denis Murray, 970/429 -2761 Comments: The project at 518 West Main Street, plan set date 2/28/11. We have done a preliminary review for compliance on this project to the policies and codes as currently adopted and amended per Title 8 of the Aspen Municipal Code. http:// www.aspenpitkin.com/Departments/ Community- Development/Buildina/ http: / /www.aspenpitkin.com/ Portals /0 /does/ City /clerk/municode /coaspent08.pdf The comments are intended to provide the applicant with corrections or concerns that may require further development or be re drawn to show compliance. We are available to schedule a meeting to discuss these items at your earliest convenience. Please either email me at denism @ci.aspen.co.us or call at 970 - 429 -2761. 1) The project will be reviewed to the 2009 International Codes. 2) The reviews of the current plans do not comply with the exiting requirements of the IBC from the upper levels. a. We have met with the Design team and have discussed a couple options to show compliance. We will review those options when submitted. Parks 1)0a1 uncut Contact: Brian Flynn, 970/429 -2035 Comments: A) Site plan: 1) The current plan does not represent accurate or up to date site conditions, specifically vegetation. The applicant will need an up to date plan for tree permits and final approval. 518 West Main Street Exhibit B - DRC Comments Page 4 of 6 2) The City will need a site plan that shows or identifies the areas of impact — where will excavation take place, how deep, type of machinery, storage of materials, etc..... 3) Parks is concerned with the significant potential of impacts and conflicts with the installation of new utilities. Water lines from main street will be required to be bored under the sidewalk are to prevent excavation under the drip line of trees and root damage. B) Tree Permit: Parks is requiring that the tree permit be approved prior to submission of any permit, building, demo, access or land permit. Please contact the City Forester at 429 -2026. The tree permit should outline protection of existing trees, drip line excavations and mitigation for any removals. As referenced in Chapter 13.20 of the City Municipal Code. C) Tree Protection: 1) A vegetation protection fence shall be erected at the drip line of each individual tree or groupings of trees remaining on site and their represented drip lines. A formal plan indicating the location of the tree protection will be required for the bldg permit set. No excavation, storage of materials, storage of construction backfill, storage of equipment, foot or vehicle traffic allowed within the drip line of any tree remaining on site. This fence must be inspected by the city forester or his/her designee (920 -5120) before any construction activities are to commence. As referenced in Chapter 13.20 2) Tree protection is required for the historical Lilacs located on the property. These protection measures shall meet the standards of the Parks Department and goals of the Historical Preservation Committee. 3) Irrigation of trees is required throughout the entire length of the project. The Contractor will supply water to the trees at a rate which is appropriate for proper health. Additional watering will take place along the edge of the roots cutting. The contractor will be required to place a burlap protection cover over the cut roots. The contractor will irrigate the burlap with an appropriate amount of water in order to keep the burlap moist. 4) Any access across or through the area of protection is prohibited at all times. D) Right of Way improvements: Landscaping in the public right of way will be subject to landscaping in the ROW requirements, Chapter 21.20. There shall be no plantings within the City ROW which are not approved first by the City Parks Department. Final plans shall show compliance with these requirements by wav of new street trees, irrigation and sod. Designs will be subject to approval from the City Forester, 920 -5120. A plan is required for review and approval. Main Street sidewalk should be removed and repaired to city standards and moved 2 feet closer to the property line, the exposed area will need to be re- vegetated and irrigated for a new parkway with sod. Coordination with the Parks Department will be required to protect roots during installation of the irrigation system. An irrigation system is required the entire length of the ROW. 518 West Main Street Exhibit B - DRC Comments Page 5 of 6 1 unsportation Department Contact: John Krueger Comments: We like the project as it is in town, on a transit route on Main St, and shouldn't add much to the traffic congestion and number of vehicles on Main Street. The applicant should be given credit for this. We would suggest that the applicant calculate and provide a brief analysis of the number of trips projected to be generated by the project (or not), how many might use transit, and the net impact (if any) to traffic. While this is a smaller project, every trip counts in the bigger picture. We would also suggest that they obtain and provide the basic information on transit and other alternative forms of transportation to the purchasers of the units. 518 West Main Street Exhibit B - DRC Comments Page 6 of 6 EXHIBIT C MEMORANDUM TO: Sara Adams FROM: Cindy Christensen, Housing Department THRU: Tom McCabe DATE: June 2, 2011 RE: REDEVELOPMENT OF 518 WEST MAIN STREET ISSUE: The Historic Preservation Committee reviewed the application to redevelop 518 West Main Street into 100% affordable housing, utilizing the FTE credits for future mitigation. BACKGROUND: The Board reviewed a preliminary project at the February 16, 2011 Regular Meeting. The applicant Peter Fornell with Fat City Holdings, LLC, is interested in relocating the historic home forward on the lot and constructing two new detached buildings. The structures will contain 11 affordable housing units, mainly Category 2 and 3, with eight on -site parking spaces. The common storage and utility area has been removed from the development. HPC reviewed the project and recommended one less unit due to parking constraints. The HPC granted a waiver of three on -site parking spaces. The P &Z and City Council will review the application whereby the HPC has final approval status due to the historic nature of the existing structure. Attached are the proposed floor plans and elevations. The property is located between Ullr Commons and the Mesa Store. The units are broken down as follows: Unit # Category Sq. Ft. # Of Bedrooms Layout 1 4 1,013 2 1 in basement and 1 on ground floor 2 2 912 2 1 in basement and 1 on ground floor 3 2 926 2 2 in basement 4 3 980 2 2 in basement 5 3 980 2 2 in basement 6 2 647 1 1 on ground level 7 2 446 Studio On ground level 8 2 836 2 2 on 1 level, kitchen/living area 2 " level 9 2 836 2 2 on l level, kitchen/living area 2 " level 10 2 858 2 2 on 1" level, kitchen/living area 2" level 11 2 1,175 3 1 on l" level, 2 on 2 " level with kitchen/living area 518 West Main Street Redevelopment Page 1 Exhibit C EXHIBIT C The project will house at least 21 individuals with 8 proposed parking spaces on site. The requirement under the Land Use Code is one space per unit. The minimum square footages as stated in the Guidelines are listed below: Categories 1& 2 Categories 3& 4 Categories 5& 6 Category 7 Unit Type Square Feet Square Feet Square Feet Square Feet Studio 400 500 600 700 1 Bedroom 600 700 800 900 2 Bedroom 850 950 1,000 1,100 3 Bedroom 1,000 1,200 1,300 1,400 Single - Family Detached 1,100 1,400 1,700 1,900 Based on the proposed square footages, most of the units are to be Category 2; the Guidelines allow for a 20% reduction under the following conditions: • Significant storage — additional storage outside the unit; • Above average natural light — more windows than the Code requires; • Efficient and flexible layout — limit to space used for halls and staircases; • Site amenities — pool, near to park or open space, etc.; • Location within the project — above ground versus ground level or below ground; • If the applicant can achieve higher density of deed restricted units with this variance. Unit 8 and Unit 9 are 14 square feet below the minimum requirements. Unit 11, if changed to a Category 3, would be 25 square feet below the minimum requirements. However, Units 8, 9 and 11 would fit into the 20% reduction criteria stated above. If the project was approved as is, the number of FTE's the project would mitigate would be as follows: 1 Studio X 1.25 = 1.25 1 One - bedroom X 1.75 = 1.75 8 Two- bedrooms X 2.25 = 18.00 1 Three- bedroom X 3.00 = 3.00 TOTAL 24.0 FTE's Attached are reduced copies of the floor plans and elevations. RECOMMENDATION: The Housing Board reviewed the application at their regular meeting held June 1, 2011. Although the Housing Board preferred the previous application that was reviewed by the Board in February, which included an additional unit along with additional storage for each of the units located in a basement, the Board does recommend approval with the following conditions: 1. Although the three- bedroom is 25 feet below the minimum for a Category 3 designation, staff would recommend, under the 20% reduction allowable, for the three- bedroom to be 518 West Main Street Redevelopment Page 2 Exhibit C EXHIBIT C designated as Category 3. All of the other units either meet the minimum square footage for the category requested or the square footage is well within the 20% reduction allowable. 2. The units shall be ownership units and sold through the Aspen/Pitkin County Housing Authority lottery system upon certificate of occupancy. 3. The developer may exercise the option to pick the owners for 30% of the units, as stated in the Guidelines, as long as the potential owners are fully qualified employees (i.e., at least a four -year work history, minimum occupancy requirement, category requirement). 4. The applicant, upon Certificate of Occupancy, shall receive the use of 24 mitigation credits, as specified above, in the form of a Certificate of Affordable Housing Credit (CAHC), although the Housing Board recommends a code amendment that would specify, retroactively, what category unit was constructed with that CAHC. The Housing Board would like these 24 mitigation credits to be specified as to the category that the unit would be sold. 5. The units shall be classified as specified above with the three- bedroom designation changed to Category 3. 6. That the language allowing for the use of the 100% privately constructed affordable housing development be able to use a Certificate of Affordable Housing Credits to sell to future developers to be approved. 7. The Certificate of Affordable Housing Credits shall be required to describe the dimensions of the affordable housing units (size, number of bedrooms) as well as the category, and shall be recorded with APCHA and with the Pitkin County Clerk and Recorder. Currently, the Code does not state category. The Housing Office and Housing Board are recommending an amendment to the Code which states the category that was associated with the Certificate of Affordable Housing Credit. 518 West Main Street Redevelopment Page 3 Exhibit C Exhibit D A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) GRANTING MAJOR DEVELOPMENT (CONCEPTUAL), DEMOLITION, RELOCATION, A SETBACK VARIANCE, PARKING REDUCTION, AND REDUCTION OF TRASH/UTILITY/RECYCLE SERVICE AREA DIMENSIONS THE PROPERTY LOCATED AT 518 WEST MAIN STREET LOTS P, Q AND1/2 OF LOT 0, BLOCK 30, CITY AND TOWNSITE OF ASPEN, COLORADO RESOLUTION # 4, SERIES OF 2011 PARCEL ID: 2735 -12- 443 -006 WHEREAS, the applicant, Fat City Holdings manager Peter Fomell, has requested Major Development (Conceptual) for a Historic Landmark Property, Demolition, Relocation, a Setback Variances, a Parking Reduction and Waiver, and a Reduction of the Trash/Utility/Recycle service Area Dimension for the property located at 518 West Main Street, Lots P, Q and '/2 of 0, Block 30, City and Townsite of Aspen, Colorado; and WHEREAS, 518 West Main Street is listed on the Aspen Inventory of Historic Landmark Sites and Structures; and ■ WHEREAS, 518 West Main Street is located within the Main Street Historic District and is a considered a contributing building to the integrity of the Historic District; and WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a designated historic property or district until plans or sufficient information have been submitted to the Community Development Director and approved in accordance with the procedures established for their review;" and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project's conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, in order to authorize a Demolition, according to Section 26.415.080, Demolition of designated historic properties, it must be demonstrated that the application meets any one of the following criteria: a. The property has been determined by the city to be an imminent hazard to public safety and the owner /applicant is unable to make the needed repairs in a timely manner, b. The structure is not structurally sound despite evidence of the owner's efforts to 518 West Main Street RECEPTION#: 578767, 03/30/2011 at 10:11:00 O HPC Resolution #4, Series of 2011 1 O 6, 6, R $3 $3 P a g e 1 of 5 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO Exhibit D properly maintain the structure, c. The structure cannot practically be moved to another appropriate location in Aspen, or d. No documentation exists to support or demonstrate that the property has historic, architectural, archaeological, engineering or cultural significance, and Additionally, for approval to demolish, all of the following criteria must be met: a. The structure does not contribute to the significance of the parcel or historic district in which it is located, and b. The loss of the building, structure or object would not adversely affect the integrity of the historic district or its historic, architectural or aesthetic relationship to adjacent designated properties and c. Demolition of the structure will be inconsequential to the historic preservation needs of the area; and WHEREAS, for approval of relocation, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine, per Section 26.415.090.0 of the Municipal Code, it must be demonstrated that the application meets any one of the following criteria: 1. It is considered a non - contributing element of a historic district and its relocation will not affect the character of the historic district; or 2. It does not contribute to the overall character of the historic district or parcel on which it is located and its relocation will not have an adverse impact on the historic district or property; or 3. The owner has obtained a Certificate of Economic Hardship; or 4. The relocation activity is demonstrated to be an acceptable preservation method given the character and integrity of the building, structure or object and its move will not adversely affect the integrity of the historic district in which it was originally located or diminish the historic, architectural or aesthetic relationships of adjacent designated properties; and Additionally, for approval to relocate all of the following criteria must be met: 1. It has been determined that the building, structure or object is capable of withstanding the physical impacts of relocation; and 2. An appropriate receiving site has been identified; and 3. An acceptable plan has been submitted providing for the safe relocation, repair and preservation of the building, structure or object including the provision of the necessary financial security. WHEREAS, for approval of parking reductions, HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine, per Section 26.415.110.0 of the Municipal Code, that: 518 West Main Street HPC Resolution #4, Series of 2011 Page 2 of 5 Exhibit D 1. The parking reduction and waiver of payment -in -lieu fees may be approved upon a finding by the HPC that it will enhance or mitigate an adverse impact on the historic significance or architectural character of a designated historic property, an adjoining designated property or a historic district; and 2. Pursuant to Section 26.515.040 Special Review Standards: A Special Review for establishing, varying, or waiving off - street parking requirements may be approved, approved with conditions, or denied based on conformance with the following criteria: 1. The parking needs of the residents, customers, guests, and employees of the project have been met, taking into account the potential uses of the parcel, the projected traffic generation of the project, any shared parking opportunities, expected schedule of parking demands, the projected impacts on to the on- street parking of the neighborhood, the proximity to mass transit routes and the downtown area, and any special services, such as vans, provided for residents, guests and employees. 2. An on -site parking solution meeting the requirement is practically difficult or results in an undesirable development scenario. 3. Existing or planned on -site or off -site parking facilities adequately serve the needs of the development, including the availability of street parking; and, WHEREAS, for approval of setback variances, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine, per Section 26.415.110.0 of the Municipal Code, that the setback variance: a. Is similar to the pattern, features and character of the historic property or district; and/or b. Enhances or mitigates an adverse impact to the historic significance or architectural character of the historic property, an adjoining designated historic property or historic district; and WHEREAS, for approval of reduction of trash/utility/service area dimensions, a staff analysis report and the evidence presented at a hearing to determine, per Section 26.575.060.B and Section 26.430 of the Municipal Code, that the reduction: 1. There is a demonstration that, given the nature of the potential uses of the building and its total square footage, the utility /trash/recycle service area proposed to be provided will be adequate. 2. Access to the utility / trash/recycle service area is adequate. 3. Measures are provided for enclosing trash bins and making them easily movable by trash personnel. 4. When appropriate, provisions for trash compaction are provided by the proposed development and measures are taken to encourage trash compaction by other development in the block. 518 West Main Street HPC Resolution #4, Series of 2011 Page 3 of 5 Exhibit D 5. The area for public utility placement and maintenance is adequate and safe for the placement of utilities. 6. Adequate provisions are incorporated to ensure the construction of the access area. WHEREAS, Sara Adams, in her staff report to HPC dated March 23, 2011 performed an analysis of the application based on the standards, found that the review standards had been met, and recommended approval with conditions; and WHEREAS, at their regular meeting on February 23, 2011 continued to March 9, 2011 and continued again to March 23, 2011, the Historic Preservation Commission considered the application during a duly noticed public hearing, the staff memo and public comments, and found the proposal consistent with the review standards and recommended approval with conditions by a vote of four to three (4 — 3). NOW, THEREFORE, BE IT RESOLVED: That HPC hereby grants HPC Major Development (Conceptual), Demolition, Relocation, Setback Variance, Parking Waiver, and a Reduction of Trash, Utility and Recycle Area Dimensions for the property located at 518 West Main Street, Lots P, Q and %z of 0, Block 30, City and Townsite of Aspen, Colorado with the following conditions: 1. Conceptual Maior Development approval is granted with the following to be submitted in the Final Major Development application, in addition to the Land Use Code requirements: a. A sloped roof is approved for both new buildings with further refinement and approval during HPC Final Review. b. A flat roof with deck access will replace the shed roof on the second story of the new building located behind the historic resource for review during Final Review. c. Provide circulation diagram and hardscape materials in addition to specific plantings proposed for the landscape. d. Provide details on front porch rehabilitation (the Aspen Historical Society may have a photograph to aid in the rehabilitation). e. Provide actual material samples for the all proposed materials (i.e. roof, siding dimensions, foundation, window components etc). f. Provide a detail for all of the front doors, specifically for the historic resource to match a typical 19 century front door on a modest miner's cottage. 2. Demolition of the 1968 garage and 2 non - historic additions to the historic landmark are approved as proposed. 3. Relocation of the historic home is approved with the following to be submitted with the initial building permit application: a. A structural report demonstrating that the building can be moved and/or information about how the house will be stabilized from the house mover must be submitted with the building permit application. The applicant must provide information as to whether or not the existing floor structure will be maintained and the advantages and disadvantages s of the decision for review and approval by staff and monitor. 518 West Main Street HPC Resolution #4, Series of 2011 Page 4 of 5 Exhibit D b. A bond or letter of credit in the amount of $30,000 to insure the safe relocation of the structure must be submitted with the building permit application. c. A relocation plan detailing how and where the building will be stored and protected during construction must be submitted with the building permit application. 4. Parking is reduced to 8 parking spaces provided on site, as shown in Exhibit A to the Resolution. 3 dedicated offsite spaces or other alternatives, one of which may be cash in lieu payment for the 3 spaces, are to be reviewed and approved during Final HPC Review. 5. Utility/Trash/Recycle Service Area is reduced to 20' wide by 8' deep by 8.5' high. 6. Setback Variance is granted pursuant to the attached site plan, Exhibit A to the Resolution, for the following: a. 3.5' west side yard setback for lightwells where 5' is required and 1.5' is provided. 7. A development application for a Final Development Plan shall be submitted within one (1) year of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one -time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. APPROVED BY THE COMMISSION at its regular meeting on the 23 day of March, 2011. 4 rah Broughton, air Approved as to Form: , ' im True, Special Counsel ATTEST: /14 . Kathy Stric and, Chief Deputy Clerk Exhibit A: Approved Conceptual site plan 518 West Main Street HPC Resolution #4, Series of 2011 Page 5 of 5 .._..._ -..... kao )(F11 4T A , • .SL 3NI1 101 EXhitatiglol4 4 2 44 i 1 3s l I ! m I I m I i ; I I • I a I I o N j ° t° I �h rail I I I 1 C, li j I I I ∎ „� i I 1 I i i I j i 1 • i1:?M�� `iy d ON II III Ill ., �.l kit ❑ 1 f -- � �ai — ., r I ss��- .. �I I r °I = II � °oi 7r_. "MIMI , r j ^ ml 1 �nr` I i , per I rod to . $i 1D i o From Nil _ T. . J - .r lim „..n 1 ii 1 1 i ° I ETE .... _ 5=21)=.74.=:r is _ °j 1 ....= . . ,:lts $- . 6 ri . a __ _ i E ,. , 41.. _ a [ . .11 ilir I I1 ,SL 3NI1 101 Ul CI _ ;��'f - f'l�I o e CID DCp . -_ Z 17 C +4£ d Mail 977E1 t V) xj . z r ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Vice - chair, Ann Mullins called the meeting to order at 5:00 p.m. Commissioners in attendance: Nora Berko, Jason Lasser, Jamie McLeod, Jay Maytin, Brian McNellis and Willis Pember. Excused was Sarah Broughton. Staff present: Jim True, Special Counsel Amy Guthrie, Historic Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk MOTION: Jay moved to approve the minutes of February 9` 2011; second by Ann. All in favor, motion carried. MOTION: Ann moved to approve the minutes of February 26`" second by Jamie. All in favor, motion carried. 610 E. Hyman — Landmark Designation, Major development and Commercial Design Review, Ord. #48 negotiation MOTION: Jay moved to continue the public hearing on 610 E. Hyman to March 2f', second by Nora. All in favor, motion carried. Disclosure.. Brian disclosed that Peter Fomell was a client of his when he worked for Blue Green but he feels this in no way will influence his decision. Peter agreed. 518 W. Main — Conceptual Historic Review for Major Development, Demolition, Relocation, Residential Design Standard Review, Parking Reduction and Setback Variances — Public Hearing Exhibit I — proof of publication Exhibit II — Sanborn maps Site visit at NOON Sara said the building is a modest 1880's miner's building located on Main Street. About ten years ago there was an internal fire; however, the exterior form did remain intact. The owner is interested in doing a total rehabilitation of the historic home. Two non - historic additions would be removed on the rear and the front porch would be opened back up. There is 1 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 a late 1960's garage on the property that will be demolished. The historic home would be picked up and moved toward the east and Mesa building. A basement would be built underneath it and they would build two detached multi - family dwelling units, one behind the historic house and the other adjacent to it on Main Street. The project is 100% affordable housing; 12 deed restricted units and 8 on -site parking spaces. The project is just under the maximum FAR. There was a work session last fall on the project. There are six reviews before HPC tonight: 1.Major Development Conceptual review. 2. Demolition of the shed and rear addition to the historic home. 3. Relocation of the historic home. 4. Residential Design Standard variances for multi - family buildings. 5. Parking Reduction/Waiver for 4 parking spaces cash- in- lieu(8 are provided and 12 are required). 6. Setback variances for the front yard of the relocated historic home. Site design and building alignment Sara said all three units will be detached and there is no addition proposed to the historic resource. The lot is 7,500 square feet. In terms of setbacks the historic home is proposed to be moved five feet off the front lot line and ten is required. The new building will have a ten foot setback. Staggering the front yard setbacks does meet the design guidelines and in a good way pushes the development to the rear of the lot. The walkways should be addressed at final and should be straight to the front doors. Building form, height mass and scale Sara explained that the applicant is proposing a mix of gable, flat and shed forms for the new construction and we feel they do relate to the context and what is going on in the district. The exterior stairway helps break up the mass and helps fit in the context of the block. Height Sara said all three of the buildings are below the maximum height limit which is 28 feet. They are about 27.11 feet. The historic home is one story and the building beside it is two story and steps up to three. Staff feels the open space between the buildings is appropriate instead of having a linking element. All the buildings have sub -grade spaces. Overall we feel the height is appropriate and there is an appropriate trade -off having detached construction. The integrity of the historic district is preserved. The roof 2 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23. 2011 forms and mass work well in the district. Staff recommended 5 conditions for final. They are proposing to rehabilitate the front porch and bring the front doors back to normal. Demolition Sara said the 1960's constructed concrete garage is requested for demolition and the two rear additions. Relocation Sara said the historic resource is in its original location. We feel the criteria are met for relocation. The historic building is in a central location which makes it hard for any development which if not relocated would envelope the house. It is an important trade off for preservation to move the historic home forward on the lot so there is much more prominence and you can see it more and it helps move the development toward the rear. We find that the criteria for relocation are met. Setback variances Sara said there is a side yard variance requested closest to the Ullr that needs to be discussed at final for light wells. The front yard setback is requested for the historic resource. It is supposed to be ten and they are proposing five. Parking waivers Sara explained that HPC can reduce the required parking for a landmark site and also waive the cash -in -lieu. They are required to have one space per unit and they can only fit 8 spaces. The spaces are head in spaces at the rear of the lot. Finding four more spots on this site will have an adverse impact on the historic resource into the context of the site design. We feel it is appropriate for HPC to reduce the parking requirement and to grant the waiver since the applicant is doing so much rehabilitation to the home. Design standards Street oriented entrances Sara said you are supposed to provide one street oriented entrance per four units. They are proposing 12 units so you need three street entrances and they have two. Staff feels it is appropriate to grant a variance. The other variance has to do with a one -story element. There is no one -story element proposed for the building directly behind the historic resource. Staff finds this is an appropriate trade off because it maximumizes the unobstructed 3 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 distance between the historic resource and new construction and it keeps the site as open as it can be by not having a porch or something like that. Next steps Growth management for affordable housing before Planning & Zoning, Council review for subdivision and then back to HPC for final review. Peter Fornell said he is the applicant representing his brother -in -law for the project. We were instrumental in creating the affordable housing credit program where new development will be mitigated through the housing that we create now. There were three structures on the property at one time and we are almost bringing the project back to what it was. We are moving the cabin to the east and when I go down Main Street I would like to see the historic asset. The Mesa Store building is on the lot line. Peter said all 12 of the affordable housing units will have decks, on property storage and are quite a bit larger than what is required by the code. The units meet category 5 and 6 of the affordable housing guidelines and I am stipulating that the units be sold at the category 3 and 4 level because I am concerned about the future users as anyone is. 15 years ago I was the recipient of the housing lottery with my two daughters when they were young. If that product was not out there in the market I might not have had the opportunity to raise two kids here. I hold that close to me to make sure we make the units nice. We could have made the units smaller instead we are making sure the category drops so that it is a more affordable price. Inside the units are things like closets, washer /dryer/ dish washer. I am making these units extremely livable for the people coming in and once they get in making it affordable. There have been so many projects in the valley that have not considered the cost of ownership and those numbers have gotten blown out of proportion. The people who win them can hardly own them. I am keeping that directly in mind as we go forward. With regard to the parking we are underneath our allowable floor area ratio. We are allowed to have 7,500 square feet above grade and we have 7,125. We aren't looking to pack this lot up. I could change the mix of units and make them all three bedrooms. I could get the same number of FTE credits and the same number of sales dollars from the recipients but there would be less units and less of a parking requirement. I am trying to respond from a community standpoint to what is missing in inventory for affordable housing. Traditionally affordable housing has been built in the higher category and the larger bedroom types. We are loaded with three bedrooms and four bedrooms, categories six and seven. The Boomerang is predominantly one bedroom and studios. We reviewed our 4 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 proposal with Housing and they liked the idea of two bedrooms. Twelve units is better than 8 for our overall community. Willis mentioned that he thinks storage units are a requirement of the housing authority. Willis asked about the construction material. Frank Reynolds, general contractor said the material has not yet been determined. Sara said P &Z will review the configuration of the units as part of the growth management review. Vice -chair Ann Mullins opened the public hearing. Doug Allen said he has lived in Aspen for 38 years and is an attorney and has property on the other side of Main Street. His client Sistie Fischer has one of the most historically important houses in Aspen in the 400 Block of West Bleeker. I am troubled by the fact that everyone thinks the West End can absorb the parking that is not being provided by this project. People don't give up their cars and it is a problem at 7 and Main. The West End can't keep absorbing all the cars for projects that don't provide enough parking. There has to be an innovative way to solve the parking on this project and the applicant is putting the historic resource where it should be and separating it from the new building is great. Molly McGuire, neighbor that lives at the Ullr Lodge. There are 27 units there and there are not 27 cars. At the Gant there are four units there and there are four cars for each unit. Not everyone who lives in employee housing has a car. I don't see this area as having a parking problem. It is a great project and I am supportive of it and there isn't enough affordable housing for people to apply that just move here. We need to keep having new projects. Most seasonal workers don't even bring a car. The Ullr has 8 spaces on 5' and in the back there are four parking spots. Elizabeth Ferguson asked if the city has any plans to do with street parking? Anyone who had a unit could have a guaranteed place nearby. The city does rent parking spaces on Bleeker. The traffic and noise on Main Street is bad. The City needs to address and have a planned thought for parking and not just think that they can find a spot. 5 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Jay mentioned that this project has come so far from the work session. There is a lot less mass than the previous proposal. Jay suggested that each place have their own window well. The five foot setback on the historic house accomplishes its prominence and splitting the buildings up is an excellent idea and you can see through. Restoring the building is truly what preservation is about. You should be commended taking on a project of restoring the house after there was a fire and for that reason I feel the parking waivers should be granted. Parking offers residential stickers and possibly the other four units that are deed restricted aren't supposed to have cars and they wouldn't be allowed to get a residential permit. Maybe their place becomes a little cheaper not having a car. Jamie said she disagrees about the individual window wells because bedroom A &B are the same units. I wouldn't recommend splitting them apart. Jay agreed. Brian also said that would mean less cutting of the landscape in which he is in favor of. Jason said the changes are in the right direction but he is still struggling to find the design guidelines that address the issues. I want more design and more creativity and a better looking building. We are asked to designate buildings and sacrifice open space and aesthetics of neighborhoods and to me the project needs to be exemplary. We are giving away millions of dollars every time we do a lot split and every time we do something like this. I get frustrated we only have a certain amount of standards to go by and design is a subjective thing. You are on the right track but you have a ways to go. Guideline 7.12 step down in scale. The building behind the historic resource needs to have that and be sensitive to the mass. Guideline 7.13 range in variation and guideline 7.14 similar in scale. The new building on Main Street could step down in scale and could have a one -story front porch to meet guideline 7.15. Jason commended the applicant for doing an affordable housing project. This is Aspen and if we are giving this stuff away we need to have great looking buildings and we might not have any standards for that. Ann went over the conditions for final: A) Relocation of the kitchen counters B) Provide circulation diagram and hardscape materials. C) Provide front porch rehabilitation. 6 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 D) Provide material samples. E) Provide details of the front doors. Ann added for final to have a Landscape plan for the existing plant material, what is being removed and what is being retained specifically the lilacs. The plant materials are important to the historic site. Nora said at one point HPC among themselves needs to discuss parking in general in Aspen. Nora said her concern are the lilacs on the east side next to Mesa store. Peter said those bushes are just about on the lot line. Jay said those decisions for final are good but they should not affect conceptual. Ann asked if everyone is in agreement of condition #1 for final. All agreed. Nora said condition #3 for final should respect the lilacs. Brian said the historic house should be brought up to a more prominence on the street. Ann agreed and having the buildings staggered across on Main Street is successful. Jason mentioned 7.5 settlement patterns. I would rather see the reduction in the size of the units and have it pulled back and not ask for a variance. Peter said he can do that and not affect the other elements of the project but the movement of the historic building forward was to benefit the building. Brian said bringing it forward is a gesture to have more prominence on the historic building. Jason said he prefers that everything else recede behind the historic house. Jason said historically he is not sure staggering patterns occurred. Ann said the question is, is it OK to relocate the house on -site and allow sympathetic development. 7 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Brian said if we are lifting up the building and going to the effort to restore the historic resource let's bring it forward to give it prominence and attention. Jason said there are not many places left in town with a lawn. I would keep it at 18 feet and keep everything else around it. Willis said in general he agrees with Jason. Amy pointed out that on the Sanborn map setbacks are different all over the city. Ann asked for comments on the setback five foot vs. ten feet. Jamie agreed on the 10 foot to give the yard more prominence. Jay disagreed and prefers the five foot setback. Jay said he would prefer to see the historic building coming up to the lot line. Jay pointed out that the house on the west is very large. With the five feet you get a little yard. Jason said he prefers the 10 foot setback. You could put a porch on the new building to the west so the entire facade can be pulled back six feet so that the mass is perceived to be pulled back. We then get a little streetscape to add to our Main Street character. We have the opportunity to ask for a great design. Brian said he is OK with the five foot setback. Ann said she would prefer the ten foot because it would be difficult to do landscaping with five feet. Nora and Willis preferred the ten foot setback. Sara tallied — 5 for a ten foot setback and 2 for a five foot setback. Parking: Jay said the amount of bedrooms has nothing to do with the amount of cars that are parked there. He could reconfigure this and make 8 units with the same amount of density. Would should consider giving the waiver and that the deed restrictions for the four units are not allowed to have cars and they are not permitted residential permits. 8 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Sara also mentioned car share memberships. Jay mentioned the electric car that they are using at Aspen Walk. The only issue is that you lose a spot because the car is in it. Possibly the applicant and housing authority can alleviate individuals from owning a car. Jay said it is one car per unit in this area. There is a deficiency in two bedroom units. Peter said he can build a larger building and get more FTE credits and have less units and therefore satisfy the parking requirement but that is not the best community benefit for us. The best community benefit is to put inventory into the two bedroom category. It is not in the interest of the community to change this project. I am concerned about the livability for people. I am trying to be sensitive to the people coming into these units. All of the different remarks on mass make sense but we have to keep in context the scope of what we are doing. Jason said he is keeping the community in context and we have heard from neighbors that parking is an issue and I am trying to be sensitive. Nora said we need a discussion about the parking culture in town. Pushing parking in to the West End also changes the character of Bleeker street. Nora asked the applicant if he could go underground for parking. Peter said not without great expense to the project. I have been in contact with the parking department, APCHA and discussed this notion of a discounted rate in our underutilized city parking garage for somebody who is willing to put their car there for a month and not move it. If I could put my car in the parking garage for $75. a month I would do that. This would take interdepartmental discussion. Brian asked how much a parking space is worth? Sara said $30,000 each. The money is used for transportation. Jamie said she is in favor of the parking waivers but have the four units tied somehow to the garage or the parking permit system that you can't get one if you live in one of the four units. The issue is how do you enforce people not having cars and parking is always going to be an issue. I am not in favor of waiving the cash -in -lieu. We need to start thinking about project and parking and possibly have a meeting with the parking department. What happens if the next project a block over wants to waive six spaces. We need to be careful as a board and think about how we address these concerns. 9 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Peter said if you pull in a parking space and it is full then you get a permit and park on the street. You can go to a lot of employee housing projects that had parking requirements placed on them and what you find is that they are not full. Brian said the reality is that these are two bedrooms and possibly we will have two cars per unit. 1 also don't want to make the parking worse by having the overflow into the West End. I am in favor of the parking waiver and the cash -in -lieu request for $120,000 could sink the project. Nora said the cash -in -lieu goes to help solve the problem. Willis asked if the applicant tried to get 12 spots on the site and if you do you don't have 12 units. Peter said the only way to get 12 cars is to park underground. To do underground we would have to add a half million to the project. The only easy answer is to increase the size of the units to three bedrooms and reduce the number of units to 8. You would have four less owners but the number of people living there will be about the same. The size and massing will be about the same and the number of credits I get will be about the same. All we are doing is satisfying a concern that is a real unknow at the expense of the best product based on the current inventory. Ann said this is a new type of housing development, these bankable employee units such as the Boomerang and now this one. We need to stick to what is required one to one. Maybe the unit number gets reduced. I think the idea about the parking garage is great. I cannot support the reduced parking and it is setting a precedent and this will snowball. Peter said Benedict Commons is in the core downtown and they a parking garage and it is more than half empty. The City of Aspen owns 15 or 18 parking spaces and they are trying to rent them out for $150 a month and can't get them rented. The parking issue is a false problem created by opponents of development. Amy pointed out that surrounding home owner have no limitations on the amount of cars they can have. 10 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Willis asked about guest parking. Peter said there is no guest requirement. Jay said the bottom line is that you are trying to control the amount of cars and by making him be within code you are increasing the density and with the three bedrooms you are probably going to have four people living there. The code fails us because it shouldn't be based on units it should be based on how many bedrooms there are. I feel that the parking spots should be deeded to the eight units. Ann said the discussion is are we waiving four parking spots. Nora, Jason, Ann and Willis are not in favor of waiving the parking spots. Brian and Jamie are in favor of waiving the parking spots . Jamie is in favor of the cashe -in -lieu and Brian feels that some mitigation should occur but not the total, $130,000. Jay said he is in favor of waiving the parking spots and the cash -in -lieu. Peter said he feels he has a great project for the community of Aspen and a great benefit for those who end up in the affordable housing. It would be a shame to see the project get changed over the type of inventory over a parking issue. I also feel it is too much to ask of an applicant to try to make everyone happy from a design standpoint. I don't necessarily like the employee housing on West Hopkins but other people seem to like it. When I did the project at 301 E. Hyman we drew it up, went to P &Z and they said change it, we looked at it again and they said change it, we looked at it again and I laid out three versions and there were six members on the board two liked the first design, two liked the second design and two liked the third. I believe there are too many available opinions about the architecture. We need to look at the historical asset. I am building within the setbacks and height limits and under the FAR . You need to think about the requirements that are imposed on me and judge those and not take me any further than that. MOTION: Jason moved to continue the meeting until 7:30 p.m. second by Nora. All in favor, motion carried. Ann pointed out that the board needs to give direction to the applicant. 11 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 Jamie said we need to break down the issues and discuss them and give input. Design comments: Jamie addressed mass and scale. Jamie said her concern is the height of the three story building behind the historic building. Another concern is the deck next to the historic resource on Main Street. It seems like you are adding a deck just so everyone can have a deck. Another concern is the alley side with the three story exposed element; how does that building feel in the context of the alley. At final physical materials should be submitted and explain how they relate to the historic house. Another concern is the access to the site. Possibly there could be a little more room around the designated property. Willis said the gable entry on the western front door element is smaller than anything on the historic resource. On the roof plans they are smaller than the historic resource and the piece behind the historic resource looks fussier than it needs to be. There are too many roof types on this architecture. A thought would be that the new construction come up to the face of the Ullr building in exchange for pushing back the historic resource. You could also entertain a flat or shed roof. Peter said at the work session this summer it was recommended that the flat roof be removed. Willis said the roof elements are fussier than the historic resource and somewhat distracting. They should be simple. The split down the middle and breezeway are great. Nora said making the historic resource prominent is important. Keeping the lilacs is important and keeping the entry to the new building to the west and a little less prominent is important. Parking in the west end is important. Jay said he listens to his fellow commissioners and I can't imagine how confused you are. I'm impressed with the mass and scale and the comments that were taken from the work session. Splitting the buildings into multiple buildings is good and bringing the historic building forward is a good idea. The sidewalk to the historic building should enter from the front. I like the fact that the FAR is below the allowable and you aren't asking for a 500 square foot bonus. I also like the fact that this is a private /public partnership 12 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23, 2011 with APCHA and the fact that the historic house is being renovated back to its original condition. I also support the parking and front yard variance and the cash -in -lieu and I hope the project stays 12 units. Ann said she feels there are too many roof lines. The roof lines and the entire project needs simplified. There is also too much hard surface for circulation, i.e. paving. I am concerned about storm runoff. The height also works well. Jason addressed guideline 7.12 step down in scale. The building behind the historic resource should be treated differently. On the west building there are two staircases and maybe there is a way to only have one. On the front facade of the west building it needs to be a product of its own time. I would be comfortable with pulling it forward to match the Ullr and the historic building pulled back. The overall perceived height can be reduced with slightly pitched roofs. Guideline 7.15 talks about breaking up the modules. There are a lot of inefficient staircases. Brian said he is OK with mass and scale. The way it is drawn you won't see the roof lines from Main Street. On the new building on Main Street I would recommend looking at extending a front porch at street level. Peter said he is going to make the changes but I don't know that each change is going to satisfy each of you to the same extent. I have been in the property management for over ten years and every property that had a flat roof leaked and had problems. I am thinking about the people that will have ownership. Ann said she would like to see one parking space per unit. Jay said we had a meeting about flat roofs and you clearly took our direction and made them gable and now we are here telling you to make them flat again. I am getting frustrated sitting on this commission. Brian said we are not saying to go a flat roof we are saying simplify the roof. Peter said he thinks he can come up with a hybrid of the two. I am going to have the hardest time with the parking spaces. I will have ideas and new thoughts. The plans do look a little cookie cutter. The building behind the historic asset should not look the same as the building on the west side. 13 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES FEBRUARY 23. 2011 MOTION: Jason moved to continue 518 W. Main until March 9` second by Brian. All in favor, motion carried 6 -1. Jay opposed. Meeting adjourned at 8:00 p.m. athleen J. Strickland, Chief Deputy Clerk 14 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Chairperson, Sarah Broughton called the meeting to order at 5:00 p.m. Commissioners in attendance: Ann Mullins, Nora Berko, Jason Lasser, Jamie McLeod, Jay Maytin and Brian McNellis. Excused was Willis Pember. Staff present: Jim True, Special Counsel Amy Guthrie, Historic Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk MOTION: Jay moved to approve the minutes of Feb. 23` second by Ann. All in favor, motion carried. MOTION: Jason moved to continue 610 E. Hyman Avenue, Conceptual, public hearing until May 25, 2011, second by Jay. All in favor, motion carried. 518 W. Main — Conceptual Major Development and Residential Design Standard Review, Demolition, Relocation, Parking Reduction and Setback Variances, Public Hearing Exhibit I proof of publication Exhibit II exhibits from work session in July Exhibit III photo of 7"' and Main Exhibit IV parking photos Sara Adams said in addition to conceptual etc. as listed above the applicant is requesting a reduction in the size of the trash recycling area. This hearing was continued from Feb. 23rd and the applicant re- noticed the hearing to tonight to capture a side yard setback variance and the trash/utility recycle service area that was requested. Peter has eliminated one unit, 12 to 11 which also reduces the number of parking spaces that need waived. You are required to have one parking space per unit so 11 on -site parking spaces are required. The applicant is providing 8 spaces and requesting a waiver of 3 spaces. The roof forms of the detached building on Main Street and the building behind the historic resource have been changed and there are two different options proposed. The applicant has also worked on the front porch of the new building that fronts Main Street to make it more substantial. The historic home will sit on the ten foot front yard setback and 1 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 previously it was io be five feet. The existing lilacs and cottonwoods will be maintained on- site.. Overall staff is supportive of the project and it meets the guidelines for conceptual review. In terms of mass there are two roof options. Staff feels the flat roof is more simpler and relates to the false front of the 02 building next door. Staff is also recommending that the stepped roof behind the historic resource be changed to a flat roof with decks. The three story building at the rear is appropriate and the plate heights are eight feet and the project is within the height limit. Staff feels the scale is appropriate for the property and the proposed modules are proportionate to what you find in the district. Parking: HPC has the purview to reduce the parking requirement and possibly waive the fee of the parking spaces. It is $30,000 per parking space and they are asking for three which would amount to $90,000. The parking reduction and waiver of payment -in -lieu fees may be approved upon a finding by the HPC that it will enhance or mitigate an adverse impact on the historic significance of architectural character of a designated historic property, an adjoining designated property or a historic district. After reviewing parking with the parking department etc. there seems to be enough parking in the area to support the reduction of 3 spaces. The lot is 7,500 square feet and the parking is proposed all the way across. Jay asked if we can restrict residents at 518 W. Main from getting a residential parking permit. Jim True, special council said he doesn't feel that would be appropriate and how it would be enforced. You are asking that the deed restriction for any resident in this project not be allowed to apply for something that other residents in the city are allowed to apply for. I do not feel this is appropriate or under HPC's authority. Utility trash recycling area: Sara said the requirement is that the area be 20 feet long, ten feet deep and ten feet high. The applicant is proposing 20 feet long, 8 feet deep and 8 1/2 feet high. The Env. Health Dept. feels confident that the proposed dimensions were adequate for the project and they will work with the applicant to determine what composting/recycling will work on the property. Setback variances: 2 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Sara said there is a side yard variance closest to the Ullr and it is for two light wells. They will stick 2 feet in to the side yard where five feet is required. You will not see them from the street. If you required them to meet the setback it would bring all the buildings closer together and we don't feel that would be a positive outcome on the preservation of the historic resource. Residential design variances: The requirement is for a 50 square foot entrance porch for the new building. The front porch is measuring 39 square feet and it needs to be 50 square feet. They need direction as to how to meet that requirement. Peter Fornell, applicant thanked Sara for doing a thorough job. Last July was our first work session and we came up with an idea that was over the height and it was one large attached building. It really didn't have any consideration to the historic asset. We then came back in February which posed the new structure which incorporated the concerns of HPC and the design was three separate buildings. The roof forms were a single slope and we reduced the size of the units so that we are under the allowable FAR. The new design is around 7,200 square feet. Regarding the affordable housing there is a need for category two housing. Peter said with the third set of plans we changed the walkways to coincide with the cabin and we are down to 7,050 square feet. We have expanded the variety of roof forms. At the last meeting everyone liked the idea of a flat roof. We also have a second choice. We have reduced the units from 12 to 11. Some of the roof forms have flat roofs with patio decks. The historic asset is moved back to the ten foot lot line. Regarding the height we wanted to make sure we had a product that matched the goals of having varying heights. We have one story, two story and three stories on the property. The three story is 50% of the overall building. The two story is 25% of the building element and the one story is 25 to 30% of the overall building envelope. We have a good mix of varying building heights. I would like to compare myself to the work that was done on 7th and Main affordable housing project. Chapter 7 in the guidelines 7.2 talks about alleys and uses 7` and Main as an example. Ann asked how many square feet are on the historic front porch. Amos Underwood said it is 60 square feet but has an overhang. 3 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Chair - person Sarah Broughton opened the public hearing. Doug Allen Doug said he has been an Aspen resident for 30 years and a property owner in the neighborhood. Your job is historic preservation. Historic preservation consists of more than just saving the small house. This project is totally changing the context of the house and impacts the neighborhood. This is not a charity project, it is a for profit venture with the potential of making millions of dollars and it should be allowed only in the context of maintaining the historic context of the house. When you pile all these buildings onto the lot and then in addition don't provide adequate parking the project is not appropriate. Staff said the neighborhood can absorb all the parking but it can't. The Jewish Center has yet to be built. People don't give up their car and cars need to be stored and these things are being ignored way too much. Steve Goldenberg I live across Main Street on Hopkins Ave. and we are also going through parking problems with the Boomerang. Everyone gets two parking permits plus a guest permit if you want it. It is 50% more than the number you come up with. If the statutory requirement is one space per unit there are a number of two bedrooms and they will generate more than one space per unit. It is at least 1.5 spaces per unit. Applying that to 11 units you need 16 spaces and we are only going to have 8 spaces. We looked at the parking study for the Jewish Center and half of their requirements are met from the north side of Main Street. Paul Taddune, attorney I am here on behalf of the Christiania and I own 523 W. Main. I agree with the comments that parking is an issue for both sides of Main Street. The reduction in parking is symptomatic and there is a problem with the development as a whole. The aesthetics of the project I am impressed with. What we are not focusing on is the density. Historically you should concern yourself with the use. We are going from the use of one unit to 11. There should be a proportion between the size of the unit and the use of it. As an observation I'm not a big fan of flat roofs. The sloping roof is a much better treatment. This is not a perpetuation of an historic use, it is actually working against it when you have so many units vs. the one unit that was there before. 4 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Cheryl Goldenberg, 430 W. Hopkins I'm concerned about the parking. The Christiania when it was developed got away with very little parking because we were worried about the historic lodges. The Christiania doesn't have enough space to park. These people will be my neighbors and I just want them to have a nice place but they will need places to park their cars. I walk everywhere but we still need a car to pick up groceries etc. The people that have two bedroom places will have two cars. These people need a place to park. Little Ajax has 14 units and 24 parking spaces. Chairperson, Sarah Broughton closed the public hearing. Jamie addressed the flat roof. I am not a huge advocate of flat roofs. I like how you have broken up a lot of the forms from the last time to this time. On the front building the previous option looked to be more in scale. I am also in favor of deck space and Ok with demolition and relocation. I'm not in favor of the parking waivers. I am concerned about the access to the utility and trash area and can support the height and depth reduction. I can support the west side yard setback variance for the light wells. Brian said the flat roofs are not the most functional design but from a mass and scale it fits better. Possibly some kind of pitch could be incorporated that would be lower than what was presented at the last meeting. I am also concemed with the utility and trash accessibility. I am concerned about the parking. I live in a building that has 11 units and 8 parking spaces and we have space on the street to park. Given the area I am not sure 8 spaces will work and I am in favor of the cash -in -lieu. Ann said she appreciates the public comment and it helps to hear what people have to say. In terms of the flat it works with all the gables. The ten foot setback is appreciated on the historic house. I cannot support the parking waivers and the parking should be the code at least one to one. The west setback and trash recommendation are appropriate. Jason said the flat roofs seem to increase the mass as one big volume. The decks help to relate to the historic mass. The proposal is to move the historic building to add development and is that appropriate. The bigger question is this the right amount of development on this property. Having the affordable housing on Main Street is commendable. Hopefully 11 parking spaces can fit on the property. I am concerned about the livability 5 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 and the floor plan and I couldn't live in these units. Is it our purview to be talking about floor plans and livability and the parking is somewhat tied in. Sarah said the land use code is one space per unit. Jim said basing parking to the livability of the units might not be appropriate. It needs to be tied to the criteria. Jason referenced criteria 26.515.040 (A) 1,2,3 — for a special review for waiving parking. The criteria has not been met. Jason said he has no problem with the dimensional changes of the trash area as long as it is approved by the Environmental Health Dept. The front porch is workable. Jay commented that he feels the parking code is incorrect, it falls short of the need but none the less that is what we have to work with. The parking code should talk about bedrooms. You want one space per unit and that doesn't change the amount of drivers in the building, one to one doesn't solve the problem. The argument is that we have the ability to make changes to a bad rule. I would give the waiver in order for 11 families to live in affordable housing rather than 8 families. We can sabotage our community by only allowing 8 units or help the community by giving the waiver and having 11 units. The commission needs to grant the waiver to get more units. Nora said the guideline is the integrity of the historic district and when you have this amount of parking the integrity of the historic district is being eroded. It is a bad rule and the code needs to be changed. Every time we grant a waiver we are turning our backs to the root problem which is the code. I cannot support the cash -in -lieu because that money goes to help solve transportation problems. The flat roofs look out of scale with all the gables. The public comments were good as you are going from a one family lot to 11 units. The question is how much housing. The front porch should be 60 feet. Sarah thanked the applicant for the model because it helps the HPC to understand what is going on. Regarding the roofs and mass there still needs to be more study. The width of the addition to the west should be restudied to bring in the full size of the deck. It is nice to have people on Main Street sitting out on the porches. As a direction I am in support of the flat roof and the density on this lot can work. On a dense lot you need to look at snow, ice and where it can go and how you deal with it to make it safe. I am in 6 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 agreement about the parking waiver. I live in an 8 unit building and we have 8 spaces. All of us only have one car. I feel the code is appropriate and I am in favor of one car per unit. I would be interested in some creative solution for this project. Someone brought up paid off-site parking which could be an interesting solution. I am ok with the utility trash area and the variance. Sara mentioned that she met with parking and transportation for options for this project. Finding off -site parking spaces, such as those at the Rio Grande Parking Garage, doesn't work. Sarah said we all need to work together to get a parking solution so that a project like this can move forward and that we are all comfortable with. Jason mentioned the car share program. Sara said parking and transportation see that as taking up a parking space on the lot and are generally opposed to it for this type of project. Peter said if we are going to promote affordable housing and promote people living inside the S curves instead of people going through the S curves twice a day we need to decide what is more important 23 people or 3 parking spaces. This project is a need in this community. I am under the FAR and so many people come in here and sit down in front of everyone and they start 2 -1 hoping you will twiddle them down to 1.2 and what they should have done is come with the project that the community is needing in the first place. I could just build three bedrooms but we have enough of those in the inventory. It serves the community better to have 11 units rather than 8. The work force needs the most help in housing. Why wouldn't we offer to a home owner to use the parking garage at a better price and then we are incentivizing that person to put their car away. Jay said a three bedroom inventory is not what is needed in affordable housing right now. Peter said he took photos at 4 Street and Bleeker and there is plenty of parking. 1102 Waters Ave. which was a free market product that isn't doing anybody any good except the person building it and his requirement was three parking spaces and he got a waiver for all three of them. Waters Ave. is where day skiers park and it is a dead end street. 7 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Sarah said we need to focus on what needs to get solved and give recommendations. Ann also agreed that we need to give the applicant direction. Peter said the useful life of a flat roof is Tess than a sloped roof'. What is the ongoing cost for these people. I don't want them to have to pay four or five hundred dollars in association fees. Vote - sloped roof vs. flat 5 sloped — 2 flat Brian said we aren't necessarily accepting the design presented tonight. Sarah said it could be a sloped roof with further refinement. The board agreed that the sloped roof needs refinement. Sarah said she is comfortable with looking at the roof at final because Council and P &Z will look at the project and know that the roofs and massing are still being refined and that includes the porch. HPC will review everything at final. Sara asked if P &Z should be looking at the re- design. Sarah said HPC should see the design not P &Z otherwise it will be confusing. Jamie said she is in favor of 11 units and we just need to develop the parking. Jason said he understands the time constraint but every time a project comes back it gets massaged and improved. I feel we need one more meeting. MOTION: Ann moved to approve resolution #4 as written with the following changes. Roof to be restudied after the project goes to P &Z and Council for approval at final. Parking: The applicant will continue to work with the city to find a solution to provide the 3 additional required parking spaces. Sara said the parking requirement needs to be nailed down on this property due to growth management etc. 8 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Sarah said it sounds like we are approving 8 onsite - parking spots and three off -site. Jason said you aren't going to put them in the parking garage and we are avoiding the decision and we need another meeting to make sure all our recommendation are clear for P &Z and Council. Peter said there are places in town that parking is an issue and places in town where it is not an issue. Ann said her motion regarding the parking is per the code, if you have 11 units you have 11 spaces and if you have 8 units you have 8 spaces. That is the motion. Brian and Ann said the requirement for parking says on or off -site. Sara clarified to meet the requirement you have to have one space per unit on -site and it has to be the dimensional standard. Nora said if we pass this, it's muddy and we should have a resolution with total approval. Peter said by building this affordable housing we are reducing the number of trips in and out the S curves. Motion died for lack of a second. MOTION: Sarah moved to approve resolution #4 for 518 W. Main as stated in staff's memo with the following changes: 1. (a) A sloped roof is approved for the new development with further refinement and approval at final. (both buildings) 4. Parking Waiver — The three additional required on -site parking spaces be provided off-site in a dedicated parking spot or other alternatives, one of which may be cash -in -lieu payment for the 3 spaces. The parking for the total project will meet code either on -site or off -site, one per unit and to be reviewed and approved at final. Clarification: Brian said we need 11 spaces mitigated for. Sara said the mitigation in the code is $30,000 for each space. 9 ASPEN HISTORIC PRESERVATION COMMISSION Exhibit E MINUTES MARCH 23, 2011 Sarah said she would rather have people have the ability to park their car instead of the cash -in -lieu. Sara said the code does recognize these situations and it says it is $30,000 per space of mitigation and it goes toward the big bucket that the City, RFTA and other groups decide to disperse. Peter said he is not opposed to paying the cash -in -lieu and we will hope that the best thing happens with those dollars and Council can make that decision. Peter said if it comes up with a solution can it be amended at final? Jim said you are approving 8 spots on -site and waiving any additional requirement but recommending that the applicant explore other alternatives to the three off -site. At final you could accept the alternative. Sarah said he can come back and say he exhausted the solutions and can pay the cash -in -lieu or he can say he found three spots or he could say he found an alternative solution. Jay said we have the authority to waive it or accept the cash -in -lieu but we can't force him to come in with a solution. If there is no alternative he can pay the cash -in -lieu. Sarah said we want the door open for an altemate solution for the three spots and if he can't do that then there needs to be the cash -in -lieu. MOTION second by Jamie. Vote: Jamie, yes; Brian, yes; Sarah, yes; Jay, yes; Ann, no; Nora, no; Jason, no. Motion carried 4 -3. MOTION: Jay moved to adjourn; second by Sarah. All in favor, motion carried. Meeti adjourned at 7:45 p.m. 10 Exhibit F RESOLUTION NO. 11, SERIES OF 2011 A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION APPROVING WITH CONDITIONS GROWTH MANAGEMENT REVIEW FOR THE DEVELOPMENT OF AFFORDABLE HOUSING, CERTIFICATE OF AFFORDABLE HOUSING CREDITS, AND A RECOMMENDATION OF A SUBDIVISION APPROVAL FOR THE PROPERTY COMMONLY DESCRIBED AS 518 WEST MAIN STREET, LEGALLY DESCRIBED AS LOTS P, Q, AND 34 OF LOT 0, ORIGINAL TOWNSITE, CITY OF ASPEN, PITKIN COUNTY, COLORADO PARCEL NO. 2735 -12- 443 -006 WHEREAS, the Community Development Department received an application from Fat City Holdings manager Peter Fomell requesting the Planning and Zoning Commission approve Growth Management review for the development of affordable housing, Establishment of Certificates of Affordable Housing Credits, and a recommendation of approval of Subdivision to the Aspen City Council to redeveloped 518 West Main Street by rehabilitating the historic home and constructing two (2) new detached multi - family structures with the entire project containing eleven (11) affordable housing units equivalent to twenty -four (24) full time equivalents; and, WHEREAS, the property is located is within the Mixed Use (MU) Zone District and is included on the Aspen Inventory of Sites and Structures as a local historic landmark and a contributing resource within the Main Street Historic District; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Transportation Department, Utilities Department, Fire Protection District, Environmental Health and Parks Department as a result of the Development Review Committee meeting; and, WHEREAS, upon review of the application and the applicable code standards, the Community Development Department recommended approval of the Growth Management Allotments for the Development of Affordable Housing, Establishment of Affordable Housing Credits and recommendation of approval for Subdivision Review; and, WHEREAS, during a regular meeting on May 17, 2011, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project; 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 Aspen Planning and Zoning Commission finds that the development proposal meets all applicable development standards and that the approval of RECEPTION#: 580044, 05/20/2011 at p @Z Resolution till, Series of 2011 11:45:50 AM, 518 West Main Street 1 OF 7, R 541.00 Doc Code RESOLUTION Page 1 a7 Janice K. Vos Caudill, Pitkin County, CO Exhibit F the development proposal, with conditions, 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. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION AS FOLLOWS: The Planning and Zoning Commission recommends that future reviews of this project retain the current housing mix and require 1 parking space per unit. Section 1: Affordable Housing a. Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Planning and Zoning Commission hereby approves eleven (11) Affordable Housing Growth Management Allotments from the 2011 Growth Management Year, conditioned upon the Aspen Pitkin County Housing Authority reducing the minimum net livable unit sizes of Units 8 and 9, both two bedroom Category 2 units, to 836 square feet each. The units, described in Table 1 below, shall be deed restricted for -sale ownership units pursuant to the Aspen Pitkin County Housing Authority's Guidelines. Table 1: Affordable Housing Unit Breakdown Unit # Bedrooms Category #'of FTEs generated 1 2 4 2.25 2 2 2 2.25 3 2 2 2.25 4 2 3 2.25 5 2 3 2.25 6 1 2 1.75 7 studio 2 1.25 8 2 2 2.25 9 2 2 225 10 2 2 2.25 11 3 2 3.00 Totals 21 24 b. Affordable Housing Credits: The Planning and Zoning Commission hereby approves the establishment of affordable housing credits for 24.0 Full Time Equivalents upon receipt of a Certificate of Occupancy for the affordable housing units pursuant to Aspen Municipal Code Section 26.540 Affordable Housing Credits. Prior to establishment of Affordable Housing Credits the units shall be deed restricted pursuant to the Aspen Pitkin County Housing Authority's Guidelines. P &Z Resolution #11, Series of 2011 518 West Main Street Page 2 of 7 Exhibit F Section 2: Subdivision The Planning and Zoning Commission recommends City Council grant Subdivision approval as described in Table 2: Table 2: Proposed Dimensions for 518 West Main Street Redevelopment Dimensional Requirement Underlying Mixed Use Zone Proposed Dimensions District Requirements Minimum Gross Lot Area 3,000 sq. ft. 7,500 sq. ft. Minimum Net Lot Area Not applicable for Multi- n/a per dwelling unit family housing development. Minimum Lot Width 30 ft. 75 ft. Minimum Front Yard 10 ft. 10 ft. for both buildings. Setback Minimum Side Yard 5 ft East side yard = 5 ft. t Setback West side yard = 1.5 ft. Minimum Rear Yard 5 ft 5 ft. Setback 28 ft., may be increased to 32 Maximum Height ft. through Commercial Design Approximately 28 ft. Review. Minimum Distance 10 ft. Approximately 10 ft. between Buildings Minimum 20 ft. wide x 8 ft. deep x 8.5 20 ft. wide x 10 ft. deep x 10 ft. hi 2 , accessed off of the Utility /trash/recycle area 11. high (Pursuant to Section 26.575.060) alley Pedestrian Amenity Space Not applicable to multi - family n/a housing development Maximum Floor Area Approximately 0.9:1 or 7,100 Ratio for Affordable 1:1 or 7,500 sq. ft. of floor area sq. ft. of floor area Housing Section 3: Building Permit Application The building permit application shall include the following: a. A copy of the final Ordinance and recorded P &Z and HPC Resolutions. b. The conditions of approval printed on the cover page of the building permit set. HPC granted a setback variance for three lightwells in the west side yard, via HPC Resolution number 4 Series of 2011. 2 HPC granted a reduction of the trash/utility/recycle area via HPC Resolution number 4, Series of 2011. P &Z Resolution 1111, Series of 2011 518 West Main Street Page 3 of 7 Exhibit F c. A completed tap permit for service with the Aspen Consolidated Sanitation District. d. A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which meets adopted city standards. e. An excavation stabilization plan and drainage report pursuant to the Building Department's requirements and construction management plan (CMP). The CMP shall describe mitigation for: parking, staging/encroachments, truck traffic, noise, dust, and erosion/sediment pollution. f. A detailed excavation plan for review and approval by the City Engineer. g. Accessibility and ADA requirements shall be addressed to satisfactorily meet adopted building codes. h. A formal site plan indicating the location of the tree protection. i. A landscape plan proposing improvements for the Right of Way subject to landscaping in the ROW requirements, Chapter 21.20 as described in Section 7 below. Section 4: Engineering Final design and analysis shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. A site drainage design and storm water runoff mitigation measures shall be conceptually approved by the Engineering Department prior to Final HPC approval. If the drainage design cannot meet city standards, the design will need to be amended and may require review and approval by City Council and/or the Historic Preservation Commission. Due to the current condition of the curb and gutter abutting the property the curb and gutter shall be replaced prior to granting of a Certificate of Occupancy pursuant to city standards. Additional detailed comments are included in the Referral Agency Comments dated April 20, 2011 and attached to the Planning and Zoning Commission staff memo dated May 17, 2011 as Exhibit D. Section 5: Environmental Health Prior to remodel or demolition, including removal of drywall, carpet, tile, etc., the state must be notified and a person licensed by the state to do asbestos inspections must do an inspection. If there is no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. The project shall meet Aspen Municipal Code Section 12.06 Waste Reduction. If the project cannot meet city standards, the design will need to be amended and may require review and approval by City Council and/or the Historic Preservation Commission. P &Z Resolution #11, Series of 2011 518 West Main Street Page 4 of 7 Exhibit F Section 6: Parks Tree permit: The tree permit shall be submitted for approval prior to building permit submittal. Said permit shall outline protection of existing trees, drip line excavations and mitigation for any removals as referenced in Chapter 13.20 of the City Municipal Code. A vegetation protection fence shall be erected at the drip line of each individual tree or groupings of trees remaining on site and their represented drip lines. No excavation, storage of materials, storage of construction backfill, storage of equipment, foot or vehicle traffic allowed within the drip line of any tree remaining on site pursuant to Aspen Municipal Code Section 13.20. Irrigation of trees is required throughout the entire length of the project. Any access across or through the area of protection is prohibited at all times. Additional detailed comments are included in the Referral Agency Comments dated April 20, 2011 and attached to the Planning and Zoning Commission staff memo dated May 17, 2011 as Exhibit D. Protection for existing lilacs: Tree protection is required for the existing Lilacs located on the property. These protection measures shall meet the standards of the Parks Department and goals of the Historical Preservation Committee to be approved by the City Forester. ROW Improvements: Landscaping in the public right of way will be subject to landscaping in the ROW requirements, Chapter 21.20. There shall be no plantings within the City ROW which are not approved first by the City Parks Department. Final plans shall show compliance with these requirements by way of new street trees, irrigation and sod, all of which is subject to approval by the City Forester. Concurrent with changes to the alignment of the Main Street sidewalk, as specified in Section 4: Engineering, the exposed area will need to be re- vegetated and irrigated for a new parkway with sod. Coordination with the Parks Department will be required to protect roots during installation of the irrigation system. An irrigation system is required the entire length of the ROW. Section 7: Aspen Consolidated Sanitation District Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. The old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements, before any and all soil stabilization measures are attempted and prior to ACSD releasing any and all permits. A separate ACSD permit is required. Additional detailed comments are included in the Referral Agency Comments dated April 20, 2011 and attached to the Planning and Zoning Commission staff memo dated May 17, 2011 as Exhibit D. Section 8: Fire Department All structures, regardless of size, shall have installed approved life safety systems (i.e. fire sprinklers and fire alarms), and meet adopted city standards. P&Z Resolution #11, Series of 2011 518 West Main Street Page 5 of 7 Exhibit F Section 9: Utilities Department Requirements The Applicant shall comply with the City of Aspen Water System Standards and with Title 25 of the Aspen Municipal Code, as required by the City of Aspen Water Department. Section 10: School Lands Dedication Fee Pursuant to Land Use Code Section 26.620, School Lands Dedication, the Applicant shall pay a fee -in -lieu of land dedication prior to building permit issuance for the excavation /stabilization permit. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in effect at the time of building permit submittal. Section 11: Impact Fees Pursuant to Land Use Code Section 26.610, Impact Fees, the Applicant shall pay a Parks Development impact fee and Transportation Demand Management (TDM) /Air Quality impact fee assessed at the time of building permit application submittal and paid at building permit issuance for the excavation /stabilization permit. The amount shall be calculated using the methodology and fee schedule in effect at the time of building permit submittal. Section 12: Any changes to the proposal adopted by the Aspen City Council that are in conflict with the approved growth management allotments specified herein shall supersede the Planning and Zoning Commission's adopted resolution. Section 13: 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 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 14: 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 15: 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. (signatures on following page) P &Z Resolution 1 11, Series of 2011 518 West Main Street Page 6 of 7 Exhibit F APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 17 day of May, 2011. 7 Stan Gibbs, Chairman APPROVED AS TO FORM: James R. True, Spe a Counsel ATTEST: Jackie tbian, Deputy City Clerk P &Z Resolution #11, Series of 2011 518 West Main Street Page 7 of 7 Exhibit G City Planning & Zoning Meeting — Minutes — May 17, 2011 Comments 2 Minutes 2 Conflicts of Interest 2 217 /219 South Third Street — Map amendment (rezoning) 2 518 West Main Street — Subdivision and related land use reviews 8 1 City Planning & Zoning Meeting — Minutes — May 17, 2011 Exhibit G Stan Gibbs called the regular meeting, Tuesday, May 17, 2011 to order at 4:30 in Sister Cities meeting Room. P &Z Commissioners in attendance were Michael Wampler, Cliff Weiss, Bert Myrin, LJ Erspamer and Stan Gibbs. Commissioners excused were Jasmine Tygre and Jim DeFrancia. Staff in attendance Jim True, Special Counsel; Sara Adams, Community Development; Jennifer Phelan, Deputy Planning Director for the City; Reed Patterson, Municipal City Clerk. COMMENTS Jenifer Phelan asked who was attending the Special Meeting this Thursday, May 19 on the AACP. MINUTES LJ Erspamer asked on page 8 if the minutes could reflect the one free - market elevator was left on the deck. Bert Myrin said on page 11 there was a B component. MOTION: Bert Myrin moved to approve the minutes of April 05, 2011 seconded by LJ Erspamer. All in favor, APPROVED. Declarations of Conflicts of Interest None stated. PUBLIC HEARING: 217/219 South Third Street Stan Gibbs opened the hearing on 217/219 South Third Street. Jennifer Phelan explained that the reason that we were here again was at the March 15 hearing there was public comment that someone did not receive notice within the 300 foot requirement. Phelan said that upon review of the notice it was determined that the notice was defective because they were using an old List of residents within 300 feet so the only way to correct this defect was a re- hearing so notice was resent so anyone who has an interest in commenting has the ability to comment on this application. Phelan said also there was a tie vote at the last hearing which is considered a failed motion although this is a recommendation to City Council for rezoning they would still like to see an action whether it is the form of an approval or denial rather than a tie with no action being taken. Phelan kid that the memo had a summary which included the exhibits that were included during the public hearing at the last hearing and all of the prior exhibits that were associated with the March 15 memo and the minutes from the March 15 meeting. Jim True said that this was a new hearing because notice was defective and the commission has heard this at the previous meeting that resulted 2 City Planning & Zoning Meeting — Minutes — May 17, 2011 Exhibit G and 219 South Third Street; seconded by Michael Wampler. Roll call: Wampler, yes; Weiss, yes; Myrin, yes; Erspamer, yes; Gibbs, no. Approved 4 -1 PUBLIC HEARING: 518 West Main Street — Subdivision and related land use reviews Stan Gibbs opened the public hearing on 518 West Main. Sara Adams said the following reviews were requested: growth management review for the development of affordable housing; the establishment of affordable housing credit for 24 FTEs and a recommendation of subdivision to City Council. Sara Adams noted 518 West Main Street includes a historic landmark because it is in the Main Street Historic District. Adams said it was a 7500 square foot lot and there was a proposal to pick up the historic home and move it forward on the lot towards the Mesa Store and construct 2 new detached buildings, 1 behind the historic resource and 1 fronting Main Street next to the historic resource for a total of 3 buildings on the lot. Adams said it is proposed to be 100% affordable housing so we are talking about 11 units; category sizes were 2 and 3 included on page 160 of the packet. Adams said the development was within the requirements of the zone district and this project was heard by the Historic Preservation Commission because it is in the historic district and a contributing historic resource. HPC granted conceptual approval and the minutes and resolution were included in the packet. HPC also had purview over the parking requirement and reduced the parking requirement from 11 spaces to 8 spaces on site all accessed off of the alley. HPC also granted a side yard setback variance for 3 light wells that were on the Ullr side of the property and reduced the size of the trash/utility service area on the rear of the property and HPC reduced the height and the depth to keep the development an appropriate distance from the historic resource. Adams said Exhibit A of the memo talked about compliance with the AACP as part of your subdivision review recommendation. Staff finds that overall the project is compliant with the regulations in the land use code and staff is recommending approval. The next review is with City Council for Subdivision Review and then back to the Historic Preservation Commission where HPC will talk about materials, landscaping, finesse the roof forms, window size and placement happen at final review after City Council has granted a subdivision approval. Adams supplied public notice to James R. True and the applicant, Peter Fomell will speak next. LJ Erspamer asked if P &Z had any review of the parking or it has been taken care of by HPC. Sara Adams replied HPC reviewed it and wanted the applicant to review parking with transportation. 8 City Planning & Zoning Meeting — Minutes — May 17, 2011 Exhibit G Cliff Weiss said that the parking has to be reversed and he did not like the HPC making land use decisions. Sara Adams said that HPC has specific criteria for a waiver or reduction of parking requested for historic landmarks that weigh over community goals and preserving the historic resource. Bert Myrin asked if the review criteria for the credits could be explained a little more. Sara Adams said the review criteria was on page 178 of the packet and it was "C" and the review criteria were pretty objective to establish affordable housing credits and P &Z was looking at whether or not the units are for the purpose of mitigating some sort of affordable housing and looking for the number of full time employees from APCHA; it was 24.0 FTEs and the draft resolution includes the Housing Board approval. Adams stated the Certificates won't be issued until the Certificates of Occupancy have been issued and there is a deed restricted certificate. Myrin asked for a quick overview of the growth management for affordable housing criteria. Adams responded that growth management review for the development of affordable housing is a little less objective; you are looking at compliance with the Aspen Area Community Plan, the requirements of the mixed use zone district, which the development meets the height regulations, it is under the allowable floor area and is consistent with the conceptual HPC approval. Adams said that was the overall plan for growth management. Peter Fornell, applicant, hoped that they were on the way to a successful project for affordable housing and are filling the category mix that has some absence in it; that was the reason they were building this mix of housing. Fornell said the recommendation for subdivision of those 11 units. Fornell said the Historic parcel photograph on page 2 (158) of the memo shows there is more on the lot historically than they are proposing today. Fornell said that they were going to no small expense on keeping this historic piece. Fornell said that he was part of affordable housing from living in it with his 2 daughters and the proposals he has done. Bert Myrin asked if there was anything with density, mass, height that P &Z is supposed to consider in the criteria. Sam Adams replied no it was not a PUD and the project meets all the requirements of the zone district. Peter Fornell responded that he was inside his height, inside the setbacks and density. Myrin asked what they were supposed to glean off the model. Adams replied the compliance with the Aspen Area Community Plan and design quality. 9 City Planning & Zoning Meeting — Minutes — May 17, 2011 Exhibit G Stan Gibbs asked if GMQS was the final decision at P &Z. Sara Adams replied Growth management was P &Z's final decision; the approval to establish affordable housing credits and Subdivision were recommendations to Council. Stan Gibbs opened the public comments section to the hearing. Public Comments: 1. Paul Taddune stated he was present for the Christinia Lodge and his own property at 323 West Main. Taddune said the HPC was concerned about parking as was this commission. Taddune said there should be balance between the density of the project and the parking required. 2. Amos Underwood said that he has lived on Bleeker just behind this property for 5 years and he has never had a parking issue living there and parks his truck, snowmobiles on a trailer and a bus. 3. Cheryl Goldenberg said this was a few blocks from her neighborhood but she was concerned about the parking and didn't know if there was a need for all of this employee housing and maybe there should be a completion bond for this project. 4. Ariana Fratto said that she was currently living in employee housing and was born here. Ariana Fratto voiced concern about emissions. Stan Gibbs closed the public comments portion of the hearing. Bert Myrin asked if there was a way to put the concern to review parking into the resolution tonight. Jim True said that you could add comments. True said that HPC did struggle with the parking issue. Cliff Weiss said that he didn't have a problem discussing parking for this project and for everything that might go along with it. Weiss said he was frustrated with HPC and P &Z should have the purview to parking because they could hold this project accountable for parking like they did Aspen Walk. LJ Erspamer said that he was a parking nut and he would hold their feet to the fire like Cliff wants to but it was HPC purview and they struggled with it. Bert Myrin inquired if the Resolution could include "P &Z require one parking space per unit ". Stan Gibbs asked staff what are the next steps for this and what decisions need to be made after this point; more specifically does parking ever come up again. Sara Adams responded parking will come up again at final 11PC where they are looking at how the applicant is proposing to mitigate the 3 parking 10 City Planning & Zoning Meeting — Minutes — May 17, 2011 Exhibit G spaces that are not required to be on site; so there are 3 spaces that need to be mitigated for through cash -in -lieu, some other off site mitigation method. Sara Adams said that HPC would appreciate the feedback on those 3 parking spaces. Cliff Weiss asked how much the cash -in -lieu was for the spaces. Sara Adams replied $30,000.00 per space so $90,000.00; there were two issues a parking reduction with the number of spaces on site or request a waiver of the cash -in -lieu fees for the historic landmark as an incentive to do rehabilitation of the historic resource. Peter Fomell said that he toyed with the parking issue and wants the best thing to happen and they are limiting in the area that people cannot get a second parking sticker for a second vehicle; so we are making these people second class citizens to every neighbor in the zone district; any other person that lives in the mixed use zone district can get 6 area parking stickers if they so desire and the 3 units that don't get a parking spaces get area stickers so that there will be 3 vehicles added to the side street parking. Stan Gibbs asked if they were doing it through the covenants or HOA. Peter Fornell replied it was through the covenants and final resolution and they are providing for 3 more spots but they will not be onsite; they could be in the parking garage, they could be at Benedict Commons but they will have a solution for 3 vehicles when he goes back to HPC for the final review. Jim True said that you can't restrict homeowners or tenants with vehicles from parking. Bert Myrin said that they could not restrict parking. Jim True said that as the owner he could put covenants on his property and make some requirements there but the City and APCHA can't make it a condition to restrict parking. MOTION: Bert Myrin moved to approve Resolution #11, 2011 with conditions, Growth Management Review for the Development of Affordable Housing, the Establishment of Certificates of Affordable Housing Credits for 24 full time equivalents and recommending that the City Council approve with conditions, Subdivision Review for the redevelopment of 518 West Main Street and amending the clerical error in the chart, Table 1, Unit#4 Category 3; Michael Wampler. Roll call: Wampler, yes; Weiss, yes; Myrin, yes; Erspamer, yes; Gibbs, yes. APPROVED 5 -0. MOTION: Bert Myrin moved to add a condition that the Planning & Zoning Commission recommends future review of this project to retain the current housing mix and require one onsite parking space per unit; seconded by LJ Erspamer. The amendment passed 3 -2. 11 City Planning & Zoning Meeting — Minutes — May 17, 2011 Exhibit G Discussion prior to vote: LJ asked if the categories were what housing put on the project. Peter Fornell replied yes. Bert Myrin said the key to his condition/motion was it was just a recommendation so the conversation in the HPC minutes was not lost; he believed that many things drop out and all you see is the approval. Cliff Weiss said a compromise or a solution to this are the words "on site" because he got from Peter that he had good intentions. Adjourned at 7:00 pm. %.4.;„ create., pan scribed by Jackie Lothian, Deputy City Clerk 12 To: Mayor Ireland and esteemed Council members From: Peter Fornell Date: June 15, 2011 Re: Updated application for 518 Main Dear Sirs, As part of my application package I wanted to provide some additional information to you as there are many aspects of the proposed affordable housing project I would like to point out since the original application. One important thing I want to review is the matter of the historic cabin. As you may know, the cabin burned to a total loss some 6 years ago and before my partnership's ownership. It has been stripped of its certificate of occupancy_ That is coupled with the fact that it is covered in metal siding and other materials that compromise it's historic integrity. It can be assumed that many developers who make application on such a parcel would ask for its demolition. We have never done so even considering the additional effort and expense of retaining it. We are sensitive to the historic character of the community and are proud to be part of a preservation of historic assets. It has often been the attitude of applicants in the city to ask for all or more than all of what is available to to the developer from a standpoint of FAR massing, etc. Our application meets all of the aspects of the zone district, we are inside the setback, height, FAR and did not ask for an exemption above the 1:1 ratio in the MU district where additional FAR up to 1.25:1 could have been requested. Our application is less than 1:1. Historical maps and photos of the parcel indicate that at least 3 structures existed on the lot and the contemplated project does not intensify its use but restores it to it's original use. As a miner's cabin it was local housing and our effort will restore the lot to local housing again. Another aspect that we as a development group are proud of We have listened to the recommendations of all of the previous boards and paid close attention to their desires. The plan has been reduced from 12 units to 11 in response to concerns from HPC, as well as the retention of certain sensitive plantings on the lot. We have reacted to the need for the categorized units in response to Housing concerns. The P &Z board approved us unanimously. (the first unanimous recommendation on that board since our project at 301 Hyman) In all, I want to stress two things. We are responding to the AACP and local concerns directly in the creation of affordable housing in an appropriate size and scope within the downtown, while not asking to exceed the permitted use in the zone district. This project will certainly further the hopes and dreams of 11 households locally and needs your considered approval. Sincer , / Or 1 er Fornell, applicant To: Sara Adams From: Peter Fornell Date: June 15, 2011 Re: Permitting fees Dear Sara, Thank you for your assistance thus far, I appreciate your excellent work. I have been reviewing the Aspen Land Use Code and some further information has come to my attention. Chapter 26 section 610 of the Code allows an applicant to request waiver of certain fees associated with construction for projects which are of affordable housing or an essential public facility. Based on this, I would like to formally request a waiver of the fees for Park Dedication and TDM/air quality. My application is for 100% affordable housing which is in the definition as available for such waiver in the Park Dedication section. The impact fees section also determines that a waiver can be made available to historic development and their associated buildings on a parcel where a landmark building and its accessory structures are improved or constructed. Thank you for your attention to this and I look forward to our presentation in July. Sincer 4 i/ NIS Peter Fornell MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Stephen Kanipe, Chief Building Official THROUGH: Chris Bendon, Community Development Director bin MEETING DATE: June 27, 2011 w• og-17 1 tit Art GE ( l 1 RE: Second Reading ofwAmendments to Ordinance No. 8, Series of 2011 adopting the 2009 International Energy Conservation Code. Continued from April 11, 2011 COUNCIL ACTION: At the April 11, 2011 public hearing Steve Barwick gave the staff presentation explaining the basics of the Renewable Energy Mitigation Program (REMP) and the City and County's relationship with the Community Office of Resource Efficiency (CORE). Public comment in support of allowing offsite mitigation was focused on photovoltaic solar farms sited as far away as Rifle and the advantages of increased potential electrical production and system maintenance contracts. This argument somewhat ignored the specific ordinance language included in the original proposal for "offsite located within the Aspen city limits ". That detail was not addressed during the staff and Council discussion. The public comments supporting the present requirements for mitigating energy use onsite or choosing the fee payment option was addressed in the staff presentation. These points included the advantages of leverage projects approved by Council and demonstrated in public comment to be as high as 3:1. The CORE programs also embrace education, rebates and partnering with local jurisdictions, all of which would be lost if the revenue stream was diverted to a private enterprise solar farm. Council voted to continue the decision until a meeting with the County Commissioners could be arranged. Since then the Commissioners met and on April 19, 2011 voted 5 -0 to support the staff recommendation to not allow offsite mitigation credit for exterior use in lieu of the REMP payment option. The reasons cited in the minutes are "they wanted homeowners to reduce energy consumption and build greener homes, and that offsite solar farms moved the impacts of energy consumption down valley ". REQUEST OF COUNCIL: Staff requests action from Council regarding amendments to Title 8, Chapter 8.46 Appendix A & B, the 2009 International Energy Conservation Code to delete the "offsite mitigation within the City limits" language regarding exterior energy use mitigation. SUMMARY: At first reading on March 28 Council supported the staff recommendation and the original concept of REMP in that if onsite mitigation is not chosen then the payment option is required. This does not deprive a permit applicant of choices. Every building site in the City has access to the onsite option in the ordinance as written; photovoltaic, solar thermal and Ground Source Heat Pumps as single systems or in any combination. The installation in all or part is 1 credited toward onsite mitigation. Another choice the applicant has is to decrease the amount of exterior energy installed. The REMP payment option that has been in place since January 2000. The REMP funds are dispersed through grants screened by the CORE board with final approval by both the BOCC and City Council. This is a well established and respected process. BACKGROUND: A memo to Council from Randy Udall dated November 12, 1999 for the first reading of the adoption of the Renewable Energy Mitigation Program provides the foundation for the operation of the program but more importantly, very clear direction. Some details of the program have changed specifically in the City adoption such as the standard for large homes and the energy cap. Important highlights in this are the goals and objectives, criteria for spending and expenditure administration, review and approval. There is also this sentence: "If homeowners want to use renewable energy, but don't want to produce it on -site, they can pay a mitigation fee to the Community Development Department when they receive their building permit ". The REMP program is more than just the Renewable Energy Mitigation part. That is only one slice of the pie in the original concept of this idea that created a relationship between the City Council, County Commissioners and the Core board. The P part of remP is about programs. The vision includes education, opportunities to assist in efficient project design, providing seed money for innovation and leveraging opportunities. This is the multiplication effect that makes REMP an awarding winning and successful concept and functional program. RECOMMENDATION: Staff recommends approving of Ordinance No. 1 t , Series 2011 on second reading. CITY MANAGER COMMENTS: 2 ORDINANCE NO.11 (SERIES 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 8.46 OF THE ASPEN MUNICIPAL CODE TO ADOPT THE 2009 INTERNATIONAL ENERGY CONSERVATION CODE. WHEREAS, the City of Aspen is nationally recognized as a leader in developing, adopting and administrating progressive energy codes; and WHEREAS, in 1995 the City of Aspen was the first jurisdiction in the country to regulate exterior energy use; and WHEREAS, in 2000 the City of Aspen was the first jurisdiction in the country to adopt a mandatory Renewable Energy Mitigation Program; and WHEREAS, it is in the best interest of the citizens of and visitors to our community to continue and maintain a leadership role in energy code adoption and administration. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. Title 8 Chapter 8.46 of the Aspen Municipal Code is hereby amended and shall read as follows: Chapter 8.46 International Energy Conservation Code Sec. 8.46.010. Adoption of the 2009 Edition of the International Energy Conservation Code. Pursuant to the powers and authority conferred by the laws of the State and the Charter of the City, there is hereby adopted and incorporated herein by reference as if fully set forth those regulations contained in the International Energy Conservation Code, 2009 Edition, as published by the International Code Council except as otherwise provided by amendment or deletion as contained in Section 8.46.020 of this Chapter. At least one (1) copy of the International Energy Conservation Code shall be available for inspection during regular business hours in the City Clerk's Office, second floor of City Hall. Sec. 8.46.020. Amendments. The International Energy Conservation Code, 2009 Edition, the addition of Appendix A "Residential Renewable Energy Mitigation Program" and Appendix B "Commercial Renewable Energy Mitigation Program" as adopted by the City at Section 8.46.010, is hereby amended to provide and read as follows: Ordinance No. 8, Series 2011. Page 1 (a) Section 101.1 Insert: "City of Aspen" for [NAME OF JURISDICTION]. (b) Section 104.3 "Final Inspection" is hereby amended and to read as follows: Section 104.3 Required energy efficiency inspections. The building official, upon notification, shall make the inspections set forth in Sections 104.3.1 through 104.4.5. Section 104.3.1 Building thermal envelope. Specific items referenced in Section 402.4.1 and Section 502.4.3 shall be inspected and approved. Section 104.3.2 Fenestration. All fenestration as defined in Section 202 shall be labeled, inspected and approved before the gypsum board inspection. Section 104.3.3 Insulation. All above and below grade wall and ceiling cavity insulation shall be labeled, inspected and approved before the gypsum board inspection. Section 104.3.4 Other inspections. In addition to the inspections specified above other inspection shall include, but not be limited to, inspections for: duct system R- value, HVAC and water - heating equipment efficiency and lighting compliance. Section 104.3.5 Final inspection. The building shall have a final energy efficiency inspection and not be occupied until approved. (c) Section 107.2 "Schedule of permit fees" is hereby amended and to read as follows: "A permit shall not be valid until the fees prescribed by Section 2.12.100 of this Code are paid in full." (d) Section 109 "Means of appeal" is deleted in its entirety and shall read as follows: "Section 109.1 Appeals shall be in accordance with Chapter 8.08 of this Code." (e) Add Section 110 "Liability" to read as follows: "The Building Official or his or her authorized representative charged with the enforcement of this code, acting in good faith and without malice in the discharge of his or her duties, shall not thereby render himself or herself personally liable for any damage that may accrue to persons or property as a result of any act or omission in the discharge of his or her duties. "This Code shall not be construed to relieve or lessen the responsibility of any person owning, operating or controlling any building or structure for any damage to persons or property caused by defects on or in such premises, nor shall the code enforcement agency, any employee thereof or City be held as assuming any such responsibility or liability by reason of the adoption of this code or by the exercise of Ordinance No. 8, Series 2011 Page 2 inspections authorized and carried out hereunder or by the issuance of any permits or certificates issued pursuant to this code." (f) Section 301 "Climate zones" is deleted in its entirety and shall read as follows: "The City of Aspen, Colorado shall use Climate Zone 7 in determining the applicable requirements from Chapters 4 and 5 ". (g) Section 402.4.2 Shall be amended as follows: Air sealing and insulation. Building envelope air tightness and insulation installation shall be demonstrated to comply with Section 402.4.2.1 . (h) 402.4.2.2 is deleted in its entirety. (i) Section 403.8 Snow Melt System Controls (Mandatory).shall be amended as follows: (Add) 403.8.1 "Snow Melt Slab Insulation. "R 10 insulation shall be installed under the area to be snow melted or R -5 insulation shall be installed under and at the slab edges of the area to be snow melted. (Add) 403.8.2 "Roof and gutter deicing ". Electric roof and gutter deicing systems shall be self regulating type cable and include automatic controls which limit the use of the system to daylight hours by means of a programmable timer. When installation exceeds manufacturers' design requirements electric roof and gutter deicing systems shall have automatic controls capable of turning off the system with when the outdoor temperature is above 50 degrees F and monitor moisture. Hydronic roof and gutter deicing systems shall have an automatic or manual control that will allow shutoff when the outdoor temperature is above 40 degrees F. (j) Section 503.2.4.5 Snow Melt System Controls. Shall be amended as follows: (Add) 503.2.4.5.1 "Snow Melt Slab Insulation. "R 10 insulation shall be installed under the area to be snow melted or R -5 insulation shall be installed under and at the slab edges of the area to be snow melted. (Add) 403.8.2 "Roof and gutter deicing ". Electric roof and gutter deicing systems shall be self regulating type cable and include automatic controls which limit the use of the system to daylight hours by means of a programmable timer. When installation exceeds manufacturers' design requirements electric roof and gutter deicing systems shall have automatic controls capable of turning off the system with when the outdoor temperature is above 50 degrees F and monitor moisture. Hydronic roof and gutter deicing systems shall have an automatic or manual control that will allow shutoff when the outdoor temperature is above 40 degrees F. Section 2. The International Energy Conservation Code is hereby amended by the addition of an Exhibit A Ordinance No. 8, Series 2011. Page 3 which shall read as follows: Appendix A "Residential Renewable Energy Mitigation Program" SECTION 101 SCOPE AND ADMINISTRATION Section 101.1 Scope. Residential snowmelt, outside pool, or outside spa systems and equipment may be installed only if the supplemental energy meets the requirements of the Residential Renewable Energy Mitigation Program (RREMP) Appendix A. This applies to all installations for which an application for a permit or renewal of an existing permit is filed or is by law required to be filed with or without an associated Building Permit that include systems described in section 101.1. Residential Building is defined in IECC section 202. Section 101.2 Residential Renewable Energy Mitigation Program (RREMP) Option — Exterior energy use for residential snowmelt systems, outdoor spas, and outdoor pools are calculated as directed by Section 201. Section 101.3 On -site Renewable Credits Option — Renewable credit options are calculated as directed by Section 301. Section 102 Payment option. The RREMP payment option is the difference in energy use calculated in section 202 and on -site renewable credits calculated in section 302 and shall be paid at the time of issuance of the building permit. The payment, if any, is based on the amount of energy required, expressed as dollars per square foot, to operate the exterior energy use systems. No payment shall be made to an applicant that exceeds the energy use with on -site renewable credits. All monies collected pursuant to this section shall be recorded in a separate fund by the City Finance Director and shall be spent in accordance with ajoint resolution by the Aspen City Council and Pitkin County Board of County Commissioners. Section 103 Credits for on -site renewable energy. This RREMP payment option is voluntary. Applicants interested in exterior energy use systems can alternatively choose to produce on -site renewable energy (Section 301) with solar photovoltaics and/or solar hot water. Also the energy efficient technology of ground source heat pump systems (GSHP) is permitted for supplemental on -site energy. Micro -hydro and wind generation systems will be credited according to industry standard site specific production reports. Section 104 Pre - existing systems. Pre - existing snowmelt, pools or spas which are being overhauled or renovated qualify for exterior energy credit. This credit can only be applied towards an installation of exterior energy on the same parcel by inspection before demolition. The calculation of the credit shall be based on section 301. Section 105 - Residential Repairs. Repairs to building components, systems, or equipment which do not increase their pre - existing energy consumption need not comply with RREMP. All replacement mechanical equipment shall be Energy Star© rated. SECTION 201 EXTERIOR ENERGY USE CALCULATIONS Section 201.1 Snow melt energy consumption shall be calculated as a RREMP payment option at $34.00 Ordinance No. 8, Series 2011. Page 4 per square foot divided by the boiler efficiency (AFUE). Electric snow melt energy consumption shall be calculated as a RREMP payment option at $34.00 per square foot. Exception: Areas critical to pedestrian ingress, egress or life safety may be snow melted with the approval of the building official. Section 201.2 Outdoor pool energy use shall be calculated as a RREMP payment option at $136.00 per square foot divided by the boiler efficiency (AFUE). Section 201.3 Spa energy use shall be calculated as a RREMP payment option at $176.00 per square foot divided by the boiler efficiency (AFUE). Package portable self contained spas not more than 64 square feet are exempt. Section 201.4 The area of electric or hydronic roof and gutter deicing systems extending from the roof eave edge beyond six feet inside the exterior wall line measured beyond the sloped roof surface shall be considered a snow melt system and subject to mitigation calculated in section 201.1. Section 202 The total RREMP payment option is the total sum of exterior energy use of sections 201.1, 201.2 and 201.3. SECTION 301 ON - SITE RENEWABLE CREDITS Section 301.1 Photovoltaic Systems — On -site renewable credit shall be calculated as $6,250.00 per 1 KiloWatt of the system design. Solar electric (photovoltaic) systems tied to the electric grid, are eligible for on -site renewable credit. Systems must be sited, oriented and installed for solar electric panels to supply at least 90% of rated capacity of the installed KW. System designer /installer must be certified by COSEIA (Colorado Solar Energy Industries Association) , NABCEP (National Association of Board Certified Energy Professionals) or a licensed electrical contractor registered with the City of Aspen. The code official is authorized to accept other certification agencies that satisfy equivalent requirement and qualifications. Section 301.2 Solar Hot Water - On -site renewable credit shall be calculated as $125.00 per 1 square foot of the system design. System designer /installer must be certified by COSEIA (Colorado Solar Energy Industries Association) , NABCEP (National Association of Board Certified Energy Professionals) or a licensed plumbing contractor registered with the City of Aspen.. The code official is authorized to accept other certification agencies that satisfy equivalent requirement and qualifications. Section 301.3 Ground Source Heat Pump - On -site renewable credit shall be calculated as $1,400 per 10,000 BTU per hour of the system capacity. In order to use a GSHP for on -site renewable credit the GSHP system must supply at least 40% of the peak load for heating and cooling the building (Manual J or approved equivalent). A minimum COP of 3 at entering source water temperature maximum of 30 degrees and leaving load water temperature minimum of 110 degrees shall be the design criteria. Section 302 The total RREMP on -site renewable credit is the total sum of sections 301.1, 301.2 and 301.3. PUBLIC DOMAIN SOFTWARE Section 401 A free calculation program known as RREMP 2009 shall be made available to the public. Ordinance No. 8, Series 2011. Page 5 EXAMPLE CALCULATION FOR RESIDENTIAL RENEWABLE ENERGY MITIGATION PROGRAM Snowmelt Example (Snowmelt requested 800 sq. ft.) $34.00 *800/ .91 (efficiency rating of boiler) = $29,890.11 RREMP payment option for exterior energy use will be $29,890.11 ON -SITE RENEWABLE CREDITS 96 square feet of solar hot water panels *$125.00 per square foot = $12,000.00 RREMP payment option will be $17,890.11 OR 4.8 KW photovoltaic system *$6,250.00 per kilowatt = $30.000.00 RREMP payment option will be $0 Section 3. The International Energy Conservation Code is hereby amended by the addition of an Exhibit B which shall read as follows: Appendix B "Commercial Renewable Energy Mitigation Program" SECTION 101 SCOPE AND ADMINISTRATION. Section 101.1 Scope. Commercial snowmelt, outside pool, or outside spa systems and equipment may be installed only if the supplemental energy meets the requirements of the Commercial Renewable Energy Mitigation Program (CREMP) Appendix B. This applies to all installations for which an application for a permit or renewal of an existing permit is filed or is by law required to be filed with or without an associated Building Permit that include systems described in section 101.1. Commercial Building is defined in IECC section 202. Section 101.2 Commercial Renewable Energy Mitigation Program ( CREMP) Option — Exterior energy use for commercial snowmelt systems, outdoor spas, and outdoor pools are calculated as directed by Section 201. Section 101.3 On - site Renewable Credits Option — Renewable credit options are calculated as directed by Section 301. Section 102 Payment option. The CREMP payment option is the difference in energy use calculated in section 202 and on -site renewable credits calculated in section 302 and shall be paid at the time of issuance of the building permit. The payment, if any, is based on the amount of energy required, expressed as dollars per square foot, to operate the exterior energy use systems. No payment shall be made to an applicant that exceeds the energy use with on -site renewable credits. All monies collected pursuant to this section shall be recorded in a separate fund by the City Finance Director and shall be spent in accordance with a joint resolution by the Aspen City Council and Pitkin County Board of County Ordinance No. 8, Series 2011. Page 6 Commissioners. Section 103 Credits for on -site renewable energy. This CREMP payment option is voluntary. Applicants interested in exterior energy use systems can altematively choose to produce on -site renewable energy (Section 301) with solar photovoltaics and/or solar hot water. Also the energy efficient technology of ground source heat pump systems (GSHP) is permitted for supplemental on -site energy. Micro -hydro and wind generation systems will be credited according to industry standard site specific production reports. Section 104 Pre - existing systems. Pre - existing snowmelt, pools or spas which are being overhauled or renovated qualify for exterior energy credit. This credit can only be applied towards an installation of exterior energy on the same parcel by inspection before demolition. The calculation of the credit shall be based on section 301. Section 105 - Commercial Repairs. Repairs to building components, systems, or equipment which do not increase their pre- existing energy consumption need not comply with CREMP. Section 201 EXTERIOR ENERGY USE CALCULATIONS Section 201.1 Snow melt energy consumption shall be calculated as a CREMP payment option at $60.00 per square foot divided by the boiler efficiency (AFUE). Electric snow melt energy consumption shall be calculated as a CREMP payment option at $60.00 per square foot. Exception: Areas critical to pedestrian ingress, egress or life safety may be snow melted with the approval of the building official. Section 201.2 Outdoor pool energy use shall be calculated as a CREMP payment option at $170.00 per square foot divided by the boiler efficiency (AFUE). Section 201.3 Spa energy use shall be calculated as a CREMP payment option at $176.00 per square foot divided by the boiler efficiency (AFUE). Package portable self contained spas not more than 64 square feet are exempt. Section 201.4 The area of electric or hydronic roof and gutter deicing systems extending from the roof eave edge beyond six feet inside the exterior wall line measured beyond the sloped roof surface shall be considered a snow melt system and subject to mitigation calculated in section 201.1. Section 202 The total CREMP payment option is the total sum of exterior energy use of sections 201.1, 201.2 and 201.3. Section 301 ON -SITE RENEWABLE CREDITS Section 301.1 Photovoltaic Systems — On -site renewable credit shall be calculated as $6,250.00 per 1 KiloWatt of the system design. Solar electric (photovoltaic) systems tied to the electric grid, are eligible for on -site renewable credit. Systems must be sited, oriented and installed for solar electric panels to supply at least 90% of rated capacity of the installed KW. System designer /installer must be certified by COSEIA (Colorado Solar Energy Industries Association), NABCEP (National Association of Board Certified Energy Professionals) or) or a licensed electrical contractor registered with the City of Aspen.. The code official is authorized to accept other certification agencies that satisfy equivalent requirement and qualifications. Ordinance No. 8, Series 2011. Page 7 Section 301.2 Solar Hot Water - On -site renewable credit shall be calculated as $224.65 per 1 square foot of the system design. System designer /installer must be certified by COSEIA (Colorado Solar Energy Industries Association), NABCEP (National Association of Board Certified Energy Professionals) or a licensed plumbing contractor registered with the City of Aspen.. The code official is authorized to accept other certification agencies that satisfy equivalent requirement and qualifications. Section 301.3 Ground Source Heat Pump - On -site renewable credit shall be calculated as $1,400 per 10,000 BTU per hour of the system capacity. In order to use a GSI-IP for on -site renewable credit the GSHP system must supply at least 40% of the peak load for heating the building (Manual J or equivalent). A minimum COP of 3 at entering source water temperature maximum of 30 degrees and leaving load water temperature minimum of 110 degrees shall be the design criteria. Section 302 The total CREMP on -site renewable credit is the total sum of sections 301.1, 301.2 and 301.3. PUBLIC DOMAIN SOFTWARE Section 401 A free calculation program known as CREMP 2009 shall be made available to the public. EXAMPLE CALCULATION FOR COMMERCIAL RENEWABLE ENERGY MITIGATION PROGRAM Snowmelt area 1200 sq. ft. $60.00* 1,200/.92 (efficiency rating of boiler) = $78,260.87 Pool area 700 sq. ft. $170.00 *700 /.92(efficiency rating of boiler)= $119000.00 Spa area 80 sq. ft. $176.00 *80 /.92(efficiency rating of boiler)= $15,304.35 RREMP payment option for exterior energy use will be $222,913.04 ON -SITE RENEWABLE CREDITS 448 square feet of solar hot water panels *$125.00 per square foot = $56,000 20 KW photovoltaic system 96,241.20 per kilowatt = $124,824.00 RREMP payment option will be $0 Ordinance No. 8, Series 2011. Page 8 Section 2: 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 3: 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 4: Public Hearing A public hearing on this Ordinance was held on the day of , 2011, in the City Council Chambers; 130 South Galena Street; Aspen, Colorado. 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 S. Koch, City Clerk FINALLY, adopted, passed and approved this day of , 2011. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk Approved as to form: John Worcester, City Attorney Ordinance No. 8, Series 2011. Page 9 MEMORANDUM TO: Mayor and City Council FROM: David Hornbacher, Director of Utilities and Environmental Initiatives THRU: Randy Ready, Assistant City Manager Don Taylor, Finance /Administrative Services Director DATE OF MEMO: June 20, 2011 MEETING DATE: June 27, 2011 RE: Appropriation for Thomas Reservoir Emergency Drainline and Castle Creek Energy Per City Council request at 1s` reading, June 13, 2011, Staff has revised the June 13 memorandum to include further information and attachments. REQUEST OF COUNCIL: Staff has two requests. First, transfer of $2,802,030 from the Water Fund to the Renewable Energy Fund. City Council directed staff to fund the Thomas Reservoir Emergency Drainline from the Water Fund. The Castle Creek Energy Center will lease the emergency drainline for use as a penstock when it begins hydroelectric production. This transfer includes costs for the emergency drainline and the raw water pipeline. Second, staff is requesting additional authority of $1,022,160 for components of the Castle Creek Energy Center. DISCUSSION: The Castle Creek Energy Center is the proposed 1.175 mw hydroelectric facility which would provide over 8% (bringing the total of renewable energy to 83 %, further towards the goal of 100% renewable by 2015) of the City's electric energy production through a local, renewable source. Project completion is anticipated in 2013. The combined budget for the emergency drainline and the Castle Creek Energy Center (CCEC) is $7.3MM. Staff is requesting additional authority of $1,022,160 resulting in total budget of $8.3MM. The project is comprised of six capital programs. The supplemental appropriation is for three of the capital programs as follows: 1. Castle Creek Raw Water Pipeline — Hydraulic improvements to ensure full designed capacity of this existing raw water delivery system to Thomas Reservoir located at the Water Plant. This project is complete. Original budget authority was $600,000. Dollars spent equal $795,218. Staff is requesting an increase in budget authority of $195,220 and a transfer from the Water Fund of $291,080 to pay that fund's expenses. The funding increase is needed because additional construction work including vault, concrete, and relocation of a concrete water line by the same contractor necessary to provide room for the emergency drainline at the proposed hydroelectric facility Expenses Planned Total Budget Additional Budget Balance YTD Expenses Authority Request $795,218 $0 $795,218 $600,000 $ 195,220 $ 2 Page 1 of 3 2. Thomas Reservoir Emergency Drainline — Installation of the pipeline from Thomas Reservoir to the proposed location of the CCEC will serve as the emergency drainline providing a means of safe reservoir evacuation. The remaining work for the emergency drainline will be completed in 2012. Total expenses to date equal $2.0MM with planned expenses totaling $979,480. Additional budget authority of $619,290 is being requested bringing the total budget to $3.0MM. The additional funding is needed due to construction challenges weaving the 42" line among other utilities including adjustments /relocation in the vicinity of the Castle Creek Road crossing for storm water, electric, gas, and sanitary sewer facilities, work modifications required for the State of Colorado Permit, and adjustments for the 2011 construction season for mobilization, material and construction management. The remaining $40,004 budget represents the original $65,000 tailrace budget minus dollars spent. Please note that future planned expenditures for this portion of the project are addressed under Financial Impacts. Expenses Planned Total Budget Additional Budget Balance YTD Expenses Authority Request $2,031,533 $939,476 $ 3,011,013 $ 2,391,723 $619,290 $40,004 3. Castle Creek Energy Center Support Services - This project includes environmental studies, architectural expenses, land planning and legal support services relating to the Federal Energy Regulation Commission (FERC) process. Current expenses are $825,164 with planned expenses totaling $128,451. Additional budget authority of $207,650 is being requested bringing the total budget to $953,615. The extended community review process and ongoing FERC licensing process requirements increased the budget. Expenses Planned Total Budget Additional Budget Balance YTD Expenses Authority Request $825,164 128,451 $953,615 $ 745,965 $ 207,650 $0 FINANCIAL/BUDGET IMPACTS: Sufficient fund balances exist in the Water Fund for the transfer to support the requested 2011 supplemental. The requested appropriations are to cover known expenses; however, depending on timing connected with the completion of this project, additional expenses could be associated with this project. These expenses include: 1) Tailrace Construction — Presently design is in review for possible value engineering changes. Current estimate approximately $750,000. 2) Permitting Process and Required Environmental Studies —These expenses will be determined by the final review process and environmental studies required by FERC for application and license approval. Current estimate ranging from $250,000 to $750,000, depending on the revised scope of work and time required for completion to meet FERC's requirements. Staff will return to City Council later in the year with information regarding FERC process, the design and construction estimate for the energy center building and tailrace once they have been completed. Page 2 of 3 RECOMMENDED ACTION: Staff recommends approval of a transfer of $2,802,030 from the Water Fund to the Renewable Fund and an overall increase in budget authority of $1,022,160. ALTERNATIVES: Staff could request additional Renewable Fund funding from other sources such as the Electric Fund. ATTACHMENTS: Attachment A — Water Fund Long Range Plan Attachment B — Renewable Energy Fund Long Range Plan Page 3 of 3 ti Le O y N ^ N O C O to O '^ O K - to 71 M _ O ^ A n A 0 . (� O N 6 D P r to Cr- C A P C 2 C 7 P T A 4 ° W C E Q ga g C T A g P T 00 . A Q m = a m c o "' ' o ^ - o - o^ o o ^ - u o o 1-1 0 _ m - o v 5. 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WHEREAS, by virtue of Section 9.12 of the Home Rule Charter, the City Council may make supplemental appropriations; and WHEREAS, the City Manager has certified that the City has unappropriated current year revenues and /or unappropriated prior year fund balance available for appropriations in the following funds: WATER UTILITY FUND AND RENEWABLE ENERGY FUND. WHEREAS, the City Council is advised that certain expenditures, revenue and transfers must be approved. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 Upon the City Manager's certification that there are current year revenues and /or prior year fund balances available for appropriation in the: WATER UTILITY FUND AND RENEWABLE ENERGY FUND: the City Council hereby makes supplemental appropriations as itemized in the Attachment A. Section 2 If any section, subdivision, sentence, clause, phrase, or portion of this ordinance is for any reason invalid or unconstitutional by any court or competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion thereof. INTRODUCED, READ, APPROVED AND ORDERED PUBLISHED AND /OR POSTED ON FIRST READING on the 13th day of June, 2011. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY ADOPTED AFTER PUBLIC HEARING on the 27th day of June, 2011. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to Form: John Worcester, City Attorney y in M x 1 to to 1 G1 v z m_ m M v N cI o o in M x x . (? r -0 v c m c - Zm i N ^ c c °c c ° o a v m Q o' N ° x m m A 1.& Cr N :° 5. 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DuneapAq 8u!pun j T 0098'bLS£b•b6•titib pu A2.194 a ennaua . q Ie�C ;o ;qns lunowd uo! ;dlnsaa ;sanbaa nnaN pun j / luawyedaa aslnnaaq o ssa!un awR -auo aae sisanbab !!`d slsanbab Su!punj nnaN la2png IeluawaiddnS TTOZ 9 ;uewyae;iy uadsy �o AID tX4a MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney THROUGH: Chris Bendon, Community Development Director FROM: Jennifer Phelan, Deputy Planning Director I RE: Appeal of Land Use Code Interpretation — Permitted Uses in the Service/ Commercial/Industrial zone district DATE: June 27, 2011 APPLICANT: Mike Kubasiewicz MIE 11.-15 r l' ' , \ t■r r Lakeview Atltlillat - 4 a f • .. '� r LOCATION: ------,, t prsM�rr� T r , y - The o �. t °'' 4 � s fi ' : 1 c Service /Commercial/ Industrial (S /C/I) soi ` . S' tk zone district. -1 as i . _ C I / ' / - f ._ Park River ~ , SUMMARY: f ' 't `� _ �a s ' ; N C • �� The Applicant is appealing an , kt t -- ' ' - administrative r �� c , ; R 3 0 t ; • i r _.:_ PUB :10 1 y 5 • •) x r F decision by the C &� 0 22 z , vc" Zoning Enforcement �----T ., it ,;, �, � r x r - _s Officer. 7 - -yY`` k ; ,. • — �"�~` z:. STAFF ''' ST t �� RECOMMENDATION: • • • g' Staff recommends j:' . • • _ ti F -.�- � . "t' �� r 95kT City Council uphold � - � the Zoning : - . `� ''' � — e Enforcement Figure 1: Vicinity Map of "S /C /I zone district" Officer's decision by adopting the proposed resolution affirming the determination. 1 SUMMARY: One of the jobs assigned to the Zoning Enforcement Officer is to ensure that only permitted uses as outlined in land use code operate within a zone district. A "use ", as defined under the land use code, is "the purpose or activity for which a lot, other area of land, or a building is designated, arranged, intended, occupied or maintained." Every zone district within the city outlines what uses are permitted within the zone district and if not listed, are prohibited. As a result of a complaint, the Community Development Department became aware of a business that was operating at 465 Mill Street in the Service /Commercial/Industrial (S /C/I) zone district, providing a number of services that may not be permitted uses within the zone district. Staff contacted the business owner, Mr. Kubasiewicz, and requested that he provide a prospectus of operations occurring at the site. A number of uses were determined by the zoning officer to not be a permitted use and were ended by the business owner, however; Mr. Kubasiewicz is interested in maintaining his yoga operation on -site. Staff has determined that yoga is not a permitted use in the zone district, and Mr. Kubasiewicz is appealing staff's determination. Section 26.316, Appeals of the Aspen Land Use Code sets forth the applicable standard of review that Council should follow in these matters and the actions available to Council following the hearing on the appeal. BACKGROUND: In this case, the decision rendered by the Zoning Enforcement Officer is whether a yoga studio is allowed in the Service /Commercial /Industrial (S /C/I) zone district as a permitted or conditional use. As a result of a complaint, staff advised the business owner that a yoga studio is not a permitted or conditional use within the S /C /I zone district. A yoga studio is considered a health and fitness facility under the larger category of Service Uses. The permitted and conditional uses (Exhibit A) for the zone district are explicit such as a post office branch or laundromat rather than generalized (for example service use) as in other commercial zone districts. The specificity of the uses permitted in the S /C /I zone district is intended to limit uses and implement the purpose of the zone district. The intent of the S /C/I zone district "is to preserve and enhance locally- serving, primarily non - retail small business areas to ensure a more balanced permanent community; to protect the few remaining such small business parks historically used primarily for light industrial uses, manufacturing, repair, storage and servicing of consumer goods, with limited retail, showroom or customer reception areas." As noted in a whereas clause of an ordinance adopted in 2008 that amended the zone district, this zone district is recognized as an area that provides "support for service commercial businesses that without the SCI Zone District would likely relocate out of town and increase vehicle trip generation by locals seeking needed services.." 2 Neither a yoga studio, health and fitness facility, nor service uses are listed as permitted or conditional uses within the zone district and therefore are not permitted to operate in the subject district. STANDARD OF REVIEW: Section 26.316.030(E) reads as follows: Standard of review. Unless otherwise specifically stated in this title, the decision - making body authorized to hear the appeal [City Council] shall decide the appeal based solely upon the record established by the body from which the appeal is taken [Zoning Enforcement Officer]. A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. The Land Use Code does not define the terms: "a denial of due process ", "exceeded its jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms as follows and may be used by Council in its deliberation of the appeal: A denial of due process may be found if some procedural irregularity is determined to have occurred that affected a significant right of the appellant, or the administrative body otherwise acted in violation of the appellant's constitutional or statutory rights. Ad Hoc Executive Committee of Medical Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo. 1986.) A decision may be considered to be an abuse of discretion if the "decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Ross v Fire and Police Pension Ass 'n., 713 P.2d 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959). A decision may be considered to be in excess of jurisdiction if the decision being appealed from "is grounded in a misconstruction or misapplication of the law," City of Colorado Springs v Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the authority of the administrative body to make. City of Colorado Springs v SecureCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). STAFF COMMENT: 1. Due Process — The applicant has met with staff to discuss what uses are permitted within the S /C/I zone district. Correspondence to the Applicant outlining that a yoga studio is not permitted and noting the ability to appeal the administrative decision was provided. Certain timeframes affect when appeals need to be scheduled. Those timeframes have been met. As required by the Land Use Code, the appellant was provided notice of tonight's meeting via registered mail and all other affected parties were noticed by publication in the newspaper, as required. (Please see Exhibit F). Assuming tonight's 3 meeting does not contain any procedural flaws, staff believes that proper procedural due process has been provided. In providing an administrative decision, the Zoning Enforcement Officer relied on the facts presented and the language within the Land Use Code. Definitions within the code such as "Service Use" and the purpose of the zone district were used in evaluating whether a yoga studio could be considered a permitted or conditional use in the zone district. Staff's decision was not arbitrary and provided substantive due process. 2. Discretion — With respect to abuse of staffs discretion, the Zoning Enforcement Officer did need to use her discretion in rendering the decision. The question is whether she abused that discretion. The Zoning Enforcement Officer is required to interpret specific text of the code to provide explanation and clarity with regard to permitted and conditional uses within a zone district. In rendering her decision, the Zoning Enforcement Officer considered adopted definitions in the land use code and the purpose clause of the S /C/I zone district to structure the decision. Staff tends to approach these sorts of tasks with a very pragmatic and realistic administration of zoning limitations. The Land Use Code does not predict every type of circumstance. Staff considers the text of the code as well as the purpose of the zone district. The Zoning Enforcement Officer believes that her discretion was applied appropriately and the decision was rendered ethically. 3. Jurisdiction — The Zoning Enforcement Officer's jurisdiction to interpret and administer 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 (and his designees). One of the Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306." and To enforce any provision of this Title or any other provision of the Municipal Code of the City of Aspen." Staff believes this language is clear and it does not appear that the applicant is questioning this provision of the code. CODE INTERPRETATION AND CODE AMENDMENT: The question in a code interpretation is what does the code say? On occasion, applicants seek a code interpretation because they believe the code should say something else. The code amendment process is the proper venue for the question what should the code say? ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING: Section 26.316.030(F) reads as follows: Action by the decision - making body hearing the appeal. The decision - making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including 4 the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by resolution. All appeals shall be public meetings. Two RESOLUTIONS: Attached are two Resolutions. One finds that the Zoning Enforcement Officer acted correctly and affirms the administrative decision. The second finds that the Zoning Enforcement Officer exceeded her jurisdiction, abused her authority, or failed to provide due process and reverses the interpretation. RECOMMENDATION: Staff believes the Zoning Enforcement Officer's interpretation was rendered ethically and that no abuse of authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold the Zoning Enforcement Officer's administrative decision by adopting the proposed Resolution affirming the decision. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions must be made in the positive) "I move to approve Resolution No. le, Series of 2011, [affirming or reversing] theZoning Enforcement Officer's administrative decision regarding permitted uses is the S /C /I zone district. ATTACHMENTS: Exhibit A — Service /Commercial /Industrial zone district standards Exhibit B — Prospectus of Dwell Pro dated February 15, 2011 Exhibit C — Zoning Officer correspondence dated April 22, 2011 Exhibit D — Appeal application Exhibit E — Land Use Code Section Regarding Appeals Exhibit F — Affidavit of notice 5 RESOLUTION NO. J �IV \� �!u (SERIES OF 2011) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN ADMINISTRATIVE DECISION REGARDING PERMITTED USES IN THE SERVICE /COMMERCIAL/INDUSTRIAL ZONE DISTRICT MADE BY THE ZONING ENFORCEMENT OFFICER WHEREAS, the Community Development Department received a complaint with regard to a yoga studio operating in the Service /Commercial /Industrial (S /C /I) zone district; and, WHEREAS, pursuant to Chapter 26.710 —Zone Districts, the Zoning Enforcement Officer rendered a decision that the use is not permitted in the S /C /I zone district; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the administrative decision of the Zoning Enforcement Officer or modify or reverse the decision upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and oral argument from Mike Kubasiewicz, the appellant, and the Community Development Director, and has found that the Zoning Enforcement Officer provided due process and neither exceeded her jurisdiction or abused her authority in rendering the administrative decision; and, WIIEREAS, 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 Zoning Enforcement Officer's administrative determination of the Land Use Code that a yoga studio is not a permitted use within the S /C /I zone district and is therefore prohibited. 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 RESOLUTION NO. 1- 0 ' ` � V (SERIES OF 2011) A RESOLUTION OF THE CITY OF ASPEN CI'T'Y COUNCIL AFFIRMING AN ADMINISTRATIVE DECISION REGARDING PERMITTED USES IN THE SERVICE /COMMERCIAL/INDUSTRIAL ZONE DISTRICT MADE BY THE ZONING ENFORCEMENT OFFICER WHEREAS, the Community Development Department received a complaint with regard to a yoga studio operating in the Service /Commercial /Industrial (S /C /I) zone district; and, WHEREAS, pursuant to Chapter 26.710 —Zone Districts, the Zoning Enforcement Officer rendered a decision that the use is not permitted in the S /C /I zone district; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the administrative decision of the Zoning Enforcement Officer or modify or reverse the decision upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and oral argument from Mike Kubasiewicz, the appellant, and the Community Development Director, and has found that the Zoning Enforcement Officer did not provide due process or exceeded her jurisdiction or abused her authority in rendering the administrative decision; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Zoning Enforcement Officer's administrative determination of the Land Use Code that a yoga studio is not a permitted use within the S /C /I zone district and determines that a yoga studio is a permitted use. 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 26.710.160. Service / Commercial/Industrial (S /C/I). A. Purpose. The purpose of the Service /Commercial/Industrial (SCI) zone district is to preserve and enhance locally- serving, primarily non - retail small business areas to ensure a more balanced permanent community; to protect the few remaining such small business parks historically used primarily for light industrial uses, manufacturing, repair, storage and servicing of consumer goods, with limited retail, showroom, or customer reception areas. The SCI zone district contains uses that may not be appropriate in other zone districts or do not require or generate high customer traffic volumes, and permits customary accessory uses. B. Permitted Uses. The following uses are permitted as of right in the Service / Commercial/Industrial (SCI) zone district. Each of the permitted uses may have, in combination, a limited percent of the floor area, as noted below, devoted to retail sales, showroom, or customer reception, and such uses shall be ancillary to the primary commercial use. This floor area percentage may be increased through Special Review by the Planning and Zoning Commission, pursuant to Section 26.430.050, and according to the standards of Section 26.710.160(E)1. 1) SCI Uses which may use up to 100% of the floor area for retail sales, showroom, or customer reception include the manufacturing, repair, customizing, servicing, detailing, sales, and rental of consumer goods such as: a) Building materials, components, hardware, fixtures, interior fmishes and equipment. b) Household appliances such as ranges, refrigerators, dishwashers, etc. c) Automobiles and motorcycles, Motor - driven cycles, and Motorized bicycles, including parts. d) Non - motorized vehicles such as bicycles and river- related recreational items, for rental or in combination with a service use related to guiding or touring. e) Fabric and sewing supply. 2) SCI Uses which may use, in combination, up to 25% of the floor area for accessory retail sales, showroom, or customer reception including the manufacturing, repair, alteration, tailoring, and servicing of consumer goods such as, electronic equipment; floral arrangements; furniture; clothing; or sporting goods: a) Typesetting and printing, including copy center. b) Photo processing laboratory. c) Locksmith. d) Post Office branch. e) Shipping and receiving services. Internet auction consignment outlet g) Laundromat. h) Commercial dry cleaning. i) Recycling center. j) Artist studio. k) Veterinary clinic. 1) Animal boarding facility. m) Animal grooming establishment. City of Aspen Land Use Code Part 700, Page 45 n) Brewery and brewing supply, with on -site alcoholic beverage consumption limited to the hours of noon to 9 pm Mondays through Saturdays and noon through 6 pm on Sundays and limited to six samples of six ounces, or four samples of six ounces and one sample of 16 ounces, per person, per day; this consumption limitation to be suspended for wholesale buyers. o) Coffee roasting and supply p) Commercial Kitchen or Bakery. q) Design Studio, limited to the Andrews - McFarlin Subdivision. 3) SCI Uses which; may use, in combination, up to 10% of the floor area for accessory retail sales, showroom, or customer reception: \ a) Building /landscape maintenance facility. b) Automobile washing facility. c) Warehousing and storage. 4) Primary Care Physician's Office Uses permitted: a) On Upper Floors, pursuant to Section 26.710.160 (D)11(b). b) Limited to a cap of 3,500 square feet at the Obermeyer Place PUD, upon execution of an Insubstantial PUD Amendment. 5) Permitted Accessory Uses: a) Service yard accessory to a permitted use. b) Sales and rental accessory and incidental to a permitted use. c) Accessory buildings and uses. d) Home occupations. e) Offices, accessory to a permitted or conditional use, not to exceed 10% of a commercial unit. C. Conditional uses. The following uses are permitted as conditional uses in the Service /Commercial/ Industrial (SCI) zone district, subject to the procedures established in Chapter 26.425.050 Procedures for Review, and the standards established in Section 26.710.160(F). Under Section 26.710.160(C)1 -3, the Commission shall establish the appropriate amount of floor area to be devoted to retail sales, showroom, or customer reception for each conditional use during the review, pursuant to the review standards of Section 26.710.160 (F)1. Under Section 26.710.160(C)4 -5, the Commission shall review the site plan to determine compliance pursuant to the review standards of Section 26.710.160(F)2 -3, and establish conditions of approval as needed. 1. Consignment retail establishment. 2. Commercial Parking Facility, pursuant to Section 26.515. 3. Gasoline service station. 4. Affordable Multi - Family Housing on Upper Floors. 5. Free Market Multi - Family Housing on Upper Floors City of Aspen Land Use Code Part, Page 46 D. Dimensional requirements. The following dimensional requirements shall apply to all permitted and conditional uses in the Service /Commercial/ Industrial (SCI) zone district: % 1. Minimum Gross Lot Area (square feet): 3,000 2. Minimum Net Lot Area per dwelling unit (square feet): No requirement. 3. Minimum lot width (feet): No requirement. 4. Minimum front vard setback (feet): No requirement. 5. Minimum side yard setback (feet): No requirement. 6. Minimum sear yard setback (feet): No requirement. 7. Minimum Utility /Trash/Recycle area: Pursuant to Section 26.575.060. 8. Maximum height: 35 feet. 9. Minimum distance between buildings on the lot (feet): No Requirement. 10. Pedestrian Amenity Space: Pursuant to Section 26.575.030. 11. Floor Area Ratio (FAR): The following FAR schedule applies to uses cumulatively up to a total maximum FAR of 2.25:1. Achieving the maximum floor area ratio is subject to compliance with applicable design standards, view plane requirements, public amenity requirements and other dimensional standards. Accordingly, the maximum FAR is not an entitlement and is not achievable in all situations. a. Commercial Uses: 1.5:1. b. Primary Care Physician's Office uses: .25:1 FAR, only if a minimum of .75:1 FAR of Commercial uses, listed in Section 26.710.160(B)1 -3, exist on the same parcel. • c. Affordable Multi - Family Housing: .5:1. d. Free - Market Multi - Family Housing: .25:1, only if a minimum of .75:1 FAR of Commercial Uses listed in Section 26.710.160(B)1 -3 exist on the same parcel. e. Free - Market Multi- Family Housing: .5:1, only if a minimum of .75:1 FAR of Commercial Uses listed in Section 26.710.160(B)1 -3 exist on the same parcel, and a minimum of .25:1 FAR of Primary Care Physician's Office Uses exist on the same parcel. 12. Maximum multi - family residential dwelling unit size (square feet): 2,000 sq. ft. of net livable area. a. The property owner may increase individual multi - family unit size by extinguishing Historic Transferable Development Right Certificates ( "certificate" or "certificates "), subject to the following: 1) The transfer ratio is 500 sq. ft. of net livable area for each certificate that is extinguished. City of Aspen Land Use Code Part 700, Page 47 2) The additional square footage accrued may be applied to multiple units. However, the maximum individual unit size attainable by transferring development rights is 2,500 sq. ft. of net livable area (i.e., no more than 500 additional square feet may be applied per unit). 3) This incentive applies only to individual unit size. Transferring development rights does not allow an increase in the Floor Area Ratio (FAR) of the lot. • Commentary: Refer to Chapter 26.535 for the procedures for extinguishing certificates. E. Special Review Standards. Whenever the dimensional standards of a proposed development within the SCI Zone District are subject to Special Review, the development application shall be processed as a Special Review, pursuant to Section 26.430.050, and shall be approved, approved with conditions, or denied based on conformance with the following criteria: 1. To increase the allowable percentage of interior space assigned to retail, showroom, or customer reception area, the applicant shall demonstrate the need and appropriateness for such additional space and shall demonstrate consistency with the purpose of the SCI Zone District. The additional approved percentage for a specific use shall be limited to that use and not applicable to subsequent uses in the same space. F. Conditional Use Review Standards. 1. To establish the allowable percentage of interior space assigned to retail, showroom, or customer reception area, the applicant shall demonstrate the need and appropriateness for the space and shall demonstrate consistency with the purpose of the SCI Zone District. The approved percentage for a specific use shall be limited to that use and not applicable to subsequent uses in the same space. 2. Applicant must demonstrate that the affordable housing and/or free market housing is substantially removed and physically separated from Commercial Uses on the same parcel, to the extent practicable, so as to isolate residential uses from commercial impacts and to adequately provide for on- loading, off - loading, circulation and parking for commercial uses. 3. Applicant must implement a prohibition on the cross - ownership of free market residential units and commercial space, to be reviewed and accepted by the City Attorney. (Ord. No. 2 -1999, §1; Ord. No. 22 -2005, §1; Ord. No. 4 -2008; Ord. No. 27- 2010, §4) City of Aspen Land Use Code Part, Page 48 DWELLP p Mike Kubasiewicz RECEAI 465 North Mills St 9 -B As pen License # 07104 r Aspen, CO 811611 Fe d Tax id. 26- 3880422 " : - Tel: 970.925.1061 s Tax 35- 25782 -000 - CITY OF "ASPEN mike c�dwell.pro COMMUNITY ORE OP's N ELQ9 2 4/ 7 Emergency Flood Response Company. Dwell Pro Inc was established in Aspen, CO in 2000. Dwell Pro is the only "Aspen based" flood response company. Down -valley flood response companies charge up to $500 / hoUr in order to offset the cost(s) of travel. Dwell Pro's 465 North Mill St. location enables a response time of 30 minutes or less, making Dwell Pro's pricing extrem competitive. et & 4tnn Cl aping Service: Dwell Pro Inc. uses environmentally friendly equipment powered by electricity. The co mpetition uses truck -mount systems powered by gas & propane which contributes to the M -8 Pollution. Dwell Pro Inc's clientele include The Little Nell, The St.Regis, M Creek Club, Cache -Cache and multiple property management companies & re sidences throughout Aspen. The services are offered 7 days per week.. Dw ell Pro Inc. offers a surface cleaning machine (LJ1000) for rental or lease by c ompanies or individuals for cleaning & emergencies. Leasing is available Monday thru $atardaY 9am -5pm. Current clients include hotels, construction companies and public schools. Dwell P�d signed and manufactures it's own surface cleaning machines and has patents pending with the US Patent Office. The machines deep clean carpet, stone, hard wo od floors, walls, office partitions, mattresses, drapery and upholstered furniture. manufacturing facilities are located at 465 North Mills St 9 -B in Aspen. The four models are availab le for viewing in the show room. Manufacturing takes place Monday thru Friday 1 0 am to 5 pm and 11 pm to 6 am Trayati Studio Trayati means "liberation of energy" in Sanskrit. The Studio is a place where young adults, 17 -21 years old with diagnosed disabilities develop skills to maximize self - reliance, independence and problem solving skills. These young adults are from the Roaring Fork and Aspen school districts. The Trayati Studio is currently, working with the "Ready for the World Program ". These young adults visit the studio and help with stocking inventory, recycling, machine manufacturing, and daily chores throughout the space of the Trayati Studio. High functioning special needs young adults will assist with basic video editing as well. In addition, the studio brings outside products from local business for assembly, shipping, and packaging. Yoga will also be a part of the daily routine for the young adults with disabilities. These transitional young adults with special needs visit Tuesday thru Thursday, loam to 3pm. Retail sales of clothing, teas, videos, etc,., help fund the Trayati Studio program. The Studio can be rented by certified yoga instructors Friday thru Monday for private instruction & workshops. The revenues generated from rentals will benefit the transition program. Kuba Films Kuba Films produces and edits personal instructional yoga videos, and other post - production work to our community. Kuba Films founded in 2000 in Aspen has since produced several short films, yoga videos, business videos, Internet commercials, and stock footages. Training in the art of Audio/Visual will be taught to young adults with special needs. The hours of operation are Monday thru Sunday, 9am to 5pm. Aspen Yoga Coop Studio The Aspen Yoga -Coop is operated by area yoga instructors. Yoga instructors teach yoga on a donation bases. The defense to an economic downturn is usually ones mental health. Donation yoga for our community provides an essential tool for this defense. Instructors hold certifications through the nationally recognized Yoga Alliance. All certified instructors are welcome. Kids' yoga is offered as an alternative to expensive child -care. Instructors will volunteer their time to young adults with special needs as well. Instructors will donate to the studio on an "able to bases ". The hours of operations for the studio are seven days a week, 7am- 9:50am and 5pm till close. April 22, 2011 Mr. Mike Kubasiewicz Dwell Pro vi 465 S Mill Street, 9 -B Aspen, CO 81611 AsrEN /Prrnr Re: Land Use Code Violation Notice COMMUNITY DEVELOPMENT DEPARTMENT Dear Mr. Kubasiewicz, Thank you for the office visit of Friday April 07, 2011 to discuss your business and the attempts you have made to adjust your business to conform to the Service /Commercial/Industrial (SCI) zone district use requirements. Per our discussion (and illustrated by your email dated Sunday April 17, 2011) Dwell Pro no longer has the Trayati Studio, or the Kabu Filrns aspect and these activities are not longer advertised on the web site ( http : / /www.dwellpro.com/home.html). However, as we discussed Aspen Yoga Coop Studio (a yoga studio) is not a permitted use in the zone district under section 26.710.160 Service /Commercial/Industrial (SCI) (exhibit A). Whether the classes are donation only has no bearing on the fact that a yoga studio is not permitted in the zone district. This letter shall serve as a correction notice and requires action from the business owner to address the above referenced violation. It is the responsibility of the business owner to comply with permitted uses in the S /C/I Zone District. You need to cease operation of the yoga business. Alternatively, you may appeal my administrative determination that a yoga studio is not permitted in the S /C/I zone district as outlined in Chapter 26.316 Appeals (exhibit B), section 26.316.030 Appeals Procedures.. Please note that an appeal needs 'to be filed within 14 days of the date of this letter and requires a deposit of $735.00. If an appeal is not filed, all operation of the yoga studio must cease within 30 days of the date of this letter. Failure to comply within 30 days of the date of this correspondence will result in a summons to Municipal Court and/or fines. Please contact Claude Salter, 429 -2752 Zoning Officer for the City of Aspen. , Regards, Claude Salter City of Aspen I Zoning Enforcement Officer Community Development Department 970- 429 -2752 (Office) claude.salter@ci.aspen.co.us Attachments: Exhibit A Chapter 26.710 Zone Districts Exhibit B Chapter 26.316 Appeals 130 Sovni GALENA STREET • ASPEN, COLORA00 81611 -1975 • PHONE 970.920.5090 • FAX 970.920.5439 - PdnkdonRecycledPapv - • - T z ATTACHMENT 2 —LAND USE APPUCATION PROJECT: Name: A e'rEAI- a F Cor,.wv.•ni rod r) 6U • 0 EU4.e.;k Location: (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) APPLICANT: - • Name: Dwell Pro Inc. MiKe i(ubgs Address: W /IS N. M; I l St. P.o. Box 10416 Phone #: 9 - tio61 REPRESENTATIVE: /1 N • ame: 5RMc AS fl Plpr -ICANr Address: l Phone #: TYPE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD (& PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Final SPA (& SPA Margin, Hallam Lake Blu$ condomininmization) Amendment) Mountain View Plane . ❑ Commercial Design Review , ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance [TV Lot Line Adjustment Other. 4 PPea I jj Conditional Use . 26.316. 030 ExwnNc CONDITI NS: (description of existing buildings, uses, previous approvals, etc.) , S.C. h4s b yo S4uACo, Pi lq{.es s +iaja k &n 4e s s kate sho w /In door reurp pkyric:11 -tka.rckpist,are PROPOSAL: (description of proposed buildings, uses, modifications, etc.) \ Allow ay094 s+orlie to exist in +ke. .C.Z zoned Spies 6 -9 B dt '•I65 N. Mill St. fto ensure q balaace4 perit coma-tut :I Have you attached the following? - FEES DUE: $ 135- ❑ Application Conference Summary M Attachment #1, Signed Fee Agreement . ❑ Response to Attachment #3, Dimensional Requirements Form ❑ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards 3 -D Model for large project ❑ erg Pmj x All plans that are larger than 8S" X 11" must be folded. A disk with an electric copy of all written text -, (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an .b electronic 3-1) modeL Your pre - application conference summary will indicate if you must submit a 3-1) model CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Apreement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and N1 • l K e K b a Stew i c Z (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for Appeal (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land. Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ 774 5' °° which is for _ hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $245.00 per planner hour over the initial deposit. Such periodic payment( shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid CITY OF ASPEN - APPLICAA _ I�' t By: By: • Chris Bendon c •-• • I Community Development Director Date: J - , Billing Address and Telephone Number: P.O. Box 10 Aspen co 916L1- 970-925- Jodi • w r. DVVELL PRO r 925 -1061 ' � P.O. Box 10416 Aspen, CO 81612 Zoning Board & Staff, Thank you for accepting DweII Pro Inc as a legitimate business in this Community. The location at 465 North Mill St. 9B. is perfect for our operations. Dwell Pro Inc. formally 24 -7 Services has been located in Aspen for 10 years. It has been a difficult and rewarding Journey! The security & insecurity of shop locations throughout town over that period has been excelling. Dwell Pro Inc.'s is focused on replacing the mop. Our Patent Pending machines are the strongest defender of viruses such as SARS. These series of machines are the rnoet powerful & efficient surface cleaning machines on the market. Productivity & Efficiency lead our charge. The location & floor plan at 465 North Mill St. is perfect. The manufacturing facility, carpeted showroom and rental storage in front as well as storage facility as a whole make it ideal for business. Machine manufacturing is our major. goal. Building a better Mouse Trap in the Industry of surface cleaning is now coming to fruition. Dwell Pro Inc. believes in retuming while growing. We want to give back to the Community now. The location at 465 N Mill St. enables DweII Pro Inc. to successfully function as a business and allow a yoga co -op to operate on its storage /showroom floor. This yoga co -op helps continuing efforts to enable our community. It also helps to supplement Dwell Pro Inc., a local business. Dwell Pro Inc. would like you to accept this business proposal. We at DweII Pro. Inc. and the Aspen yoga co -op would be grateful for the opportunity to present our many positive thoughts on this proposal. Sincerely, Mike Kubasiewicz President Dwell Pro Inc. EtiST Chapter 26.316 APPEALS Sec. 26.316.010 Appeals, purpose statement Sec. 26.316.020 Authority Sec. 26.316.030 Appeal procedures Sec. 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]) Sec. 26.316.020. Autho city. 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 Subsection 26.470.060.D. of this Title. City of Aspen Land Use Code Part 300, Page 35 i D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority to hear an appeal from any decision or determination made by an administrative official unless otherwise / specifically stated in this Title. (Ord. No. 17 -2002, §2 [part]; Ord. No. 27 -2002, §23; Ord. No. 12, 2007, §18) Sec. 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 Subsection 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, §19) City of Aspen Land Use Code Part 300, Page 36 ‘ AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: • 4 & L' G. f"(-t S7 re , Aspen, CO SCHEDULED PUBLIC HEARING DATE: to ' S_• on e r n , 20 1 1 STATE OF COLORADO ) ) ss. County of Pitkin ) ___54-144- e- it SCO ✓ C 1 (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that 1 have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an ofcial paper or a paper of general circulation in the City of Aspen at least fifteen (11 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 r appeared no more than sixty (60) days prior to the date of the public hearing. A copy of 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 �fo "Affidavit of Notice" was acknowledged before me this �. day of rt i A/VAS , 20 (I , by rai a S WITNESS MY HAND AND OFFICIAL SEAL P LIC TI • RE: ADMINISTRATIVE TERMINATION APPEAL (SERVICHCOMME IAl/INDUSTRI- ALZONEbISTRIan My commission expires: alkat ID_ NOTICE 15 HEREBY GIVEN at a public hearing will 0 0ehmld eorenthe Aspen City • Council, City I J Coun cil c m. Ember thespen Chy . Galee Cty Aspnl comberr, City pall, 1 to an a Galena twe Aspen, term determination, submitted 16 by Mkf T an bd a a l e w lc ra6ve Box 1016, n A, , CO 12. e ar, PO Notary Public Box a inati concluded de that studio is not a administrative determination in meSn ca erNrciaUl fro a iot (SICpermitted I) zone district use in the Sd cannot operate lcate commonly and nnt 465 5. from m Nt, location -B For comhe In known on 4o contact J n r nnitey P Phe la a a at the City 01 iAs, C Community at t D City of Aspen Domm it., develop mono Deppar tment, n B300, S. G alea il Aspen CO @Ciasoenno u (or b emSaail JennMer.Phalan ®ci aspen no us). etMiehael V e Char Aspen Dian Counci l r ATTACHMENTS AS APPLICABLE: Published in the Aspen Times Weekly on May 29, UBLICATION 2011 . (65e2579j THE POSTED NOTICE (SIGN) VNERS AND GOVERNMENT AGENGIES NOTIED t5 Y IVIA1L * APPLICANT CERTICICATION OF MINERAL ESTATE OWNERS NOTICE AS REQUIRED BY C.R.S. §24- 65.5 -103.3 F 4>' [� a May 27, 2011 Mr. Mike Kubasiewicz PO Box 10416 Aspen, CO 81612 RE: ADMINISTRATIVE DETERMINATION APPEAL (Permitted Uses in the S /C/I zone district) Dear Mike, As required per Section 26.316.020 D., Notice Requirements, of the land use code notice is hereby given that a public hearing is scheduled on Monday, June 13, 2011, to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen. The purpose of the hearing is to consider an appeal of an administrative determination, submitted by you; however, as we discussed earlier this week you requested a continuance to June 27 To accommodate your request the hearing will be continued to that subsequent date. • The administrative determination concluded that a yoga studio is not a permitted use in the Service /Commercial/Industrial (S /C/I) zone district and cannot operate from the location commonly known as 465 S. Mill Street, 9 -B. For further information, please feel free to contact me at 970.429.2759 or by email Jennifer.Phelan@ci.aspen.co.us. A memo will be emailed to you in the near future. Regards, Tenifer Phelan Deputy Planning Director SENDER: COMPLETE THIS SECTIO COMPLETE THIS SECTION ON DELIVERY • Complete items 1, 2, and 3. Also complete A. Signature Item 4 if Restricted Delivery is desired. YY / y � J ❑ Agent • Pdnt your name and address on the reverse ❑ Addresser ■- that we can return the card to you. B. Received by ( Printed Name) C. Date of Deliver) A o ttach this card to the back of the mailpiece, mat eC �Lub�It 4 ,�� G or on the front if space permits. D. Is delivery address different from item 1? Y Yes 1. Article Addressed to: If YES, enter delivery address below: ID No Ilirleirrilill 11.1.1,,1111 Mr. Mike Kubasiewicz PO Box 10416 a e Aspen CO 81612 ❑ ,Ma? ❑ Registered ❑ Ream Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Deliveyt (Eara Fee) t7 Yes Article Number Transfer from service 18680 91 7199 9991 7030 0719 1565 corm 3811, February 2004 Domestic Return Receipt 102595- 02-W1544 SPECIAL MEETING CALLED FOR EXECUTIVE SESSIOON Date June 27, 2011 Call to order at: U m. I. Councilmembers present: Co cilmembers not present: ❑ Mick Ireland [Mick Ireland [I Steve Skadron ❑ Steve Skadron [► Adam Frisch ❑ Adam Frisch fir, Torre ❑ Torre Derek Johnson ❑ Derek Johnson `� II. Motion to go into executive session by v� ; seconded by t Other persons present: AGAINST: FOR: Eck Ireland ❑ Mick Ireland [ ,Steve Skadron ❑ Steve Skadron e dam Frisch ❑ Adam Frisch �/ D orre ❑ Torre erek Johnson ❑ Derek Johnson III. MOTION TO CONVENE EXECUTIVE SESSION FOR THE PURPOSE OF DISCUSSION OF: ci C.R.S. 24- 6- 402(4) _ �; / j?_4 t A ,(,( (a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest O Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal ques ions. (c) Matters required to be kept confidential by federal or state law or rules and regulations. (d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; (e) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; (f) (I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. IV. ATTESTATION: The undersigned attorney, representing the Council and being present at the executive session, attests that the subject of the unrecorded portions of the session constituted confidential attorney -clie - • • cation: / _ The undersigned chair of the executive session attests that the discus-'ons in in hi ive session were limited to the topic(s) described in Section III, above. ) i f Adjourned at: