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HomeMy WebLinkAboutminutes.council.20110627 Regular Meeting Aspen City Council June 27, 2011 PRO CYCLING CHALLENGE UPDATE 2 CITIZEN COMMENTS 2 COUNCILMEMBER COMMENTS 2 CONSENT CALENDAR 3 • Minutes —June 13, 2011 3 • Contract Amendment Burlingame Program Manager 3 • Resolution #42, 2011 - Droste Conservation Easement 3 ORDINANCE #21, SERIES OF 2011 -518 W. Main Subdivision 3 ORDINANCE #11, SERIES OF 2011 — Amending Energy Conservation Code 5 ORDINANCE #20, SERIES OF 2011 — Supplemental Appropriation 5 RESOLUTION #43, SERIES OF 2011 — Appeal S /C /I Zone District — Yoga Studio 10 1 Regular Meeting Aspen Citv Council June 27. 2011 Mayor Pro Tem Johnson called the meeting to order at 5 PM with Councilmembers Torre, Frisch and Skadron present. PRO CYCLING CHALLENGE UPDATE Nancy Lesley, special events, told Council Medalist had a goal of reaching 30 million viewers and are committed to making that happen. Ms. Lesley showed a map of the streets to be closed said the closures will start at 6 AM. There will be a 2.5 block long patron tent for of Main street from Galena to Spring. There will be stages and jumbotrons around town. Team buses will be parked on Hyman. Staff showed slides of the race in California, both mountain and town segments and how they appeared. Ms. Lesley told Council there will be neighborhood meetings to inform people what to expect. Jeff Woods, parks department, said since the numbers of people attending is unknown, staff is preparing for the high end rather than be caught unprepared. Woods said the event team is working to get sponsors and Aspen Valley Ski Club is helping in this endeavor. Woods said staff is confident they will meet the financial goals. Ms. Lesley said Independence Pass will be closed at noon from both sides. Woods reminded Council Tuesday, June 28 at 3 PM is a grand opening for the Droste open space at the town of Snowmass Village. The purchase of 850 acres for Droste results in a 2500 acre mountain park. Woods said Thursday at 11:30 AM is the grand opening of the East of Aspen trail to be held at Anderson Park. CITIZEN COMMENTS There were none. COUNCILMEMBER COMMENTS 1. Councilman Frisch said his daughter's birthday was held outdoors at the Red Brick and it was great to be out of doors. 2. Mayor Pro Tem Johnson thanked the parks, streets and transportation for the improvements clone at the corners of Hallam and Bleeker and 7` It looks more attractive for people driving into town and it was done on time and under budget. 3. Randy Ready, assistant city manager, requested Council add an executive session to the end of the meeting. 4. Councilman Skadron said he attended Colorado Municipal League and Colorado Association of Ski Town meetings and VRBO and sales taxes was touched on; there was a lengthy presentation from the Department of Local Affairs. 2 Regular Meeting Aspen City Council June 27, 2011 CONSENT CALENDAR Councilman Torre requested the Burlingame contract amendment be taken off the consent calendar for discussion to explain the process on this extension of the contract, previous approvals, whether this amendment fits into the plan and an update on pre -sales sign up. Chris Everson, affordable housing project manager, told Council in 2008 the citizens' budget task force and construction expert's group recommended that the city include an owner's agent component in Burlingame Phase II design and development to provide additional oversight and to better track costs. Everson reminded Council when the integrated delivery process was developed for phase II, staff included the owner's rep component in the IDP model and Rider Levett Bucknall was selected through a competitive bid process. Their contract was up at the end of 2010 for the original schedule, public outreach, design of the project, land use process and completion of the construction drawings. Everson said the timeline has been extended and the land use process will be in front of Council later in the summer. Everson recommended the owner's agent be part of the team for the land use process and for the construction drawings. Everson reminded Council staff's goal is to complete the land use process and separately consider the pre -sales effort and the funding decisions, including a question on the November ballot. Everson told Council the Rider Levett Bucknall contract is an effort based consulting contract rather than a fixed scope of work. Everson said so there is no budget request attached to this as there is money in the budget carried over from the previous year. Everson told Council there is a work session scheduled July 18 to bring them up to date on pre- sales. To date there have been over 130 applications and the housing staff is trying to get those applicants APCHA qualified and about 35 of those applicants are APCHA qualified. Mayor Pro Tem Johnson said this process is to get the design and construction documents so Council can decide to put the project on hold or to go forward. Councilman Torre moved to approve the consent calendar; seconded by Councilman Frisch. The consent calendar is: • Minutes — June 13, 2011 • Contract Amendment Burlingame Program Manager • Resolution #42, 2011 - Droste Conservation Easement All in favor, motion carried. ORDINANCE #21, SERIES OF 2011— 518 W. Main Subdivision Councilman Torre moved to read Ordinance #21, Series of 2011; seconded by Councilman Frisch. All in favor, motion carried. ORDINANCE N0. 21, (SERIES OF 2011) 3 Regular Meeting Aspen City Council June 27, 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 %Y OF LOT 0, BLOCK 30, CITY OF ASPEN, PITKIN COUNTY, COLORADO. Sara Adams, community development department, told Council this project at 518 W. Main street is a landmark and located within the Main Street historic district. Ms. Adams said the proposal is for 100% affordable housing project of 11 units and the plans include moving the historic house forward on the lot, rehabilitation of the historic house, demolition of non - historic additions and construction of 2 new buildings, one behind the historic landmark and one next to the historic landmark fronting Main street. Ms. Adams said this project meets the requirements of the mixed use zone and is under the allowable floor area, and meets the height requirement. Ms. Adams told Council HPC granted conceptual review with some conditions and reduced the parking requirement from 11 to 8 spaces on site and setback variances and trash area reduction. P &Z has reviewed and approved growth management approval for the development of affordable housing and for affordable housing credits for 24 full time equivalents. P &Z stated concerns about the parking reductions. The applicant is requesting fees wavier for the transportation demand management fee, air quality fee and parks fees. Council may waive or reduce the fees for affordable housing projects. Ms. Adams noted historic landmarks are exempt from those fees and that reduction has been reflected in the fee chart. Ms. Adams stated staff finds the criteria for subdivision have been met and recommends approval on first reading. Councilman Skadron asked if the owner can petition for conversion of this property to free market units in the future. Councilman Skadron asked the degree of significance that this structure contributes to the parcel. Ms. Adams said this is a 19 century miner's residence on Main street which had commercial and residential buildings and this is indicative of a structure that a typical miner's family would have lived in. Councilman Skadron asked if this proposal diminishes the integrity of this structure in the Main street historic district. Councilman Skadron asked why the property owner, and not APCHA, is asking to chose the qualified purchasers of units. Councilman Frisch asked if the applicant has to honor the category schedule or could they change it later on. Councilman Frisch asked what happens if the affordable tax credit program does not come out financially as planned by the applicant. Ms. Adams said this project cannot convert to all free market units. Mayor Pro Tem Johnson said he would like background on fee waivers so that Council can be consistent. Mayor Pro Tem Johnson said he has concerns about parking reduction. Mayor Pro Tem Johnson said he would like livability issues with storage and any outdoor living areas addressed at second reading. Mayor Pro Tem Johnson said he would like more information about the applicant choosing the purchasers of the units. Mayor Pro Tem Johnson moved to adopt Ordinance #21, Series of 2011, on first reading; seconded by Councilman Skadron. Roll call vote; Councilmembers Frisch, yes; Torre, yes; Skadron, yes; Mayor Pro Tem Skadron, yes. Motion carried. 4 Regular Meeting Aspen City Council June 27. 2011 ORDINANCE #11, SERIES OF 2011 — Amending Energy Conservation Code Denis Murray, building department, reminded Council the first reading of this ordinance was held April 11. Mayor Pro Tem Johnson noted this amendment still allows for flexibility in the REMP funding; CORE has the option to distribute the funds where they see fit. Mayor Pro Tem Johnson said he would encourage CORE to look at radiant solar farms around the valley. Councilman Skadron said it is morally corrupt to offload Aspen's development impacts to communities down valley and not supporting this amendment would do that. Mayor Pro Tem Johnson opened the public hearing. There were no comments. Mayor Pro Tem Johnson closed the public hearing. Councilman Torre moved to adopt Ordinance #11, Series of 2011, on second reading; seconded by Councilman Skadron. Roll call vote; Councilmembers Frisch, yes; Torre, yes; Skadron, yes; Mayor Pro Tem Johnson, yes. Motion carried. ORDINANCE #20, SERIES OF 2011— Supplemental Appropriation Dave Hornbacher, utilities department, told Council there are two requests; a transfer of $2.8 million from the water fund into the renewable energy fund to fund the emergency drain line for the Thomas reservoir, and a supplemental budget authority of $1,022,160. Hornbacher noted there are 6 components that make up the Castle Creek Energy Center: a portion of the electric distribution system to support the energy center, the Castle Creek raw water pipeline, the Thomas reservoir drain line, penstock and tailrace, the Castle Creek energy center facility, the energy center project support services, like environmental studies, planning and legal support and the general engineering. Hornbacher said the work on electric distribution system is complete as is the work on the Castle Creek raw water pipeline. The Thomas reservoir drain line is under construction, anticipated completion fall of 2011. The Castle Creek energy facility generator is complete and ready for shipping; there is budget for the site improvement and construction of the energy center. The support services work is ongoing. Hornbacher reminded Council the Castle Creek energy center was approved by the electorate in 2007 and in 2008 a $5.5 million bond was issued to construct the energy center. The Castle Creek hydraulic improvements were complete in 2008. The turbine and generator were manufactured in 2009. The electric distribution supporting components were complete in 2010. The Thomas reservoir emergency drain line is scheduled to be complete fall 2011. The tail race is proposed for completion summer 2012; there is a design for that which is presently being value engineered. The building for the energy center is proposed to be constructed in 2013/2014 and depending on the length of the FERC process approval, it would start operation in 2014. Hornbacher noted no budget is being requested for the electric distribution as it is complete. The raw water pipeline is complete; the expenses are $795,000 and budget is $600,000 and the budget request is $190,000. The Thomas reservoir drain line has a budget of $2.391 million, which is the budget for the contract bid; the additional budget request is $619,000 for change 5 Regular Meeting Aspen City Council June 27, 2011 orders due to construction difficulties and the remaining work at the reservoir. The Castle Creek energy center facilities expense has a budget of $3 million with a remaining balance of $1.375 million. The monies spent were for the manufacture of the generator. No additional money is being requested for that. The support services request is for architectural, environmental and FERC; expenses are $825,000 and additional planned expenses of $128,000. Staff is requesting an additional $207,000. In general engineering, expenses to date are $247,000 and the budget is $247,000 and no additional budget is requested. Hornbacher said the original budget from the engineering studies was $6.2 million and Council has approved appropriations of $7.3 million to cover general engineering for the feasibility, the drain line to account for the contract of $2.4 million, the generator required an additional $98,000 for cost of metals, site preparation of $146,000 and $110,000 of contract contingency which has not been spent. Hornbacher reiterated this budget request is for an additional $1,022,160 bringing the total budget to $8.3 million. The monies remaining for the construction and site work of the energy center is $1.3 million. Councilman Skadron asked if it is premature or proper to approve transfer of these funds without answers to the environmental questions regarding the hydro plant. Hornbacher said the transfer of these funds recognizes work on the drain line from Thomas reservoir which is necessary and an appropriate capital improvement to the water system. This facility will be used for emergency evacuation of Thomas reservoir not currently in existence. Hornbacher stated irrespective of the outcome of the hydro plant process, this project should be completed. Mayor Pro Tem Johnson asked if this request is what the water department needs to complete the drain line project. Hornbacher said yes and staff will return for budget appropriation for the tailrace. Councilman Frisch asked if the request for $207,650 is an overrun or a timing issue. Hornbacher said most of it is timing as well as additional environmental and legal work being done. Hornbacher said staff plans to return to Council with a budget for an alternative licensing process with an estimate of $250,000 to $750,000. Councilman Frisch asked if someone from the state came to the city about the emergency drain line. Hornbacher said early in the process for the Castle Creek Energy Center, staff reviewed all the components of the system and during that process, the city's engineering firm noted that the Thomas reservoir does not have the ability to evacuate the reservoir required under today's standards. Councilman Frisch asked how the dam is holding up with the current runoff. Hornbacher said the dam is operating all right; however, debris is collecting and if it limits the ability to operate, water could flow into the reservoir at two times the amount the structure could handle and a breach may occur. Mayor Pro Tem Johnson opened the public hearing. Andrew Kole said this was voted on as a $5.5 million project and is now an $8.4 million. Kole said giving another $1 million seems unwise. Kole said Council should stop this project until they get definite facts and find out if the drain is necessary. Dick Butera told Council the last report by the Colorado inspector of dams said this dam is so safe, it does not need to be inspected 6 Regular Meeting Aspen City Council June 27. 2011 again. Butera suggested the valve can be turned off if there is too much water going into the reservoir. Butera said this pipeline has been labeled emergency to get money out of the water fund and to skirt the FERC issues. Butera said in filing for the small exemption, FERC will get involved in the pipelines and other residual issues. Butera asked Council to look at the cash flows and the monetary history of this project. Butera noted originally the proposal was there would be a $300,000 cash savings to the city with the $6.2 hydropower project and this has been adjusted down to $41,000. The revenues shows $460,000 revenue per year into the future and expenses of $234,000 and a profit of $234,000 before debt with a debt service of $365,000 into the future which means the project will lose $134,000 /year as a result of spending $8.2 million. Butera said debt service is being paid with no revenues which totals over $2 million. Butera said the bond underwriters should be asked if they are aware this project has not yet opened and will not open until after 2014 and the costs have gone up. Butera said this project will end up costing more than $10 million. Butera said there is no zoning for this project; there is no Colorado permit, there is no federal permit and the city does not have water rights for a hydro plant on Castle Creek. Butera said he has not filed a lawsuit on the water rights because of the spirit of mediation and cooperation. Yasmine dePagter pointed out transfers into the renewable energy fund and the Castle Creek project and they won't make any money until 2014. Ms. dePagter said the community was told this hydropower plant was going to make money and be self - sustaining; however, it appears by adding up the debt service and the operating costs this does not end up in the positive without transferring money from the water fund. Ms. dePagter said it also appears the project includes a 5% rate increase, which has not been discussed with the community. This project is environmental damage and will cost more. Ms. dePagter questioned putting water through an emergency drain line, which should be sitting empty. Tom Starodoj told Council the original program had a 5.5 kwh production which has been lowered to 1.10 megawatts, which seems to be a reduction in productivity. The original operation was 12 months and now it will be in high water period from May to September which will lower revenues of the plant. The budget has gone from $6.19 million to $8.32 million which is a 34% increase in costs. Starodoj said this seems to be a financial black hole into which city money keeps going and staff will return for more appropriations. Paul Noto, representing several landowners on Castle Creek, said this budget seems to be piecemealed and Council has not gotten the sticker shock of the entire project. Noto said now is the time to do a financial check in, where is the project in reality and where will it be at the end when all the numbers are added up. Noto said the turbine cost $1.5 million has already been purchased, without a federal permit. Noto suggested getting an independent review of the cost projections and revenue projects of the energy center. Maureen Hirsch reminded Council the city only has a preliminary permit from FERC in order to do due diligence. This does not grant permission to building anything and confers no authority to undertake construction of the proposed project. Ms. Hirsch said the city has already spent $5.5 million which was ear marked for the construction of the Castle Creek hydropower plant. Ms. Hirsch said a small hydro project license gives FERC jurisdiction over the intake, reservoir, penstock, tailrace and power plant. Ms. Hirsch said in March staff requested $2.4 million to construct the drain line and penstock. These monies came from the bond fund, which was to pay for the infrastructure. The penstock is not connected to the reservoir nor does it have an outlet. 7 Regular Meeting Aspen City Council June 27. 2011 Mayor Pro Tem Johnson closed the public hearing. Mayor Pro Tem Johnson said he would like a definition of the emergency drain line. Hornbacher stated the city is not in a state of emergency but the drain line would be used in an emergency at the reservoir; it could be called an overflow drain line. Hornbacher said the dam inspection of 1989, the state said they would not further inspect the dam, the only property damage would be to city property, and that the safety of the dam would continue with the city. Since 1989, there has been development downhill from Thomas reservoir. Hornbacher noted there was a comment about the drain line not being obstructed as a FERC regulation. Hornbacher told Council he has a letter from FERC affirming that the drain line will be built irrespective of the energy center, that it was a necessary component for the Thomas reservoir and FERC stated they had no further comment or direction to change, cease or desist. Hornbacher responded that staff identified in information presented to Council that in the early years of the energy center, that costs would exceed revenue and over time those shifted, the bonds are paid off and energy costs go up, and the system will make money. Hornbacher said additional work has been proposed to protect the environment; however, the project still shows a positive rate of return. Hornbacher told Council staff sent information to the city's energy supplier, MEAN, who reviewed it for accuracy and completeness. MEAN stated the information described the project accurately. Hornbacher reminded Council there was additional review by the Healthy Streams and Rivers consultant and one of the recommendations of their consultant was that the costs should be shared between water and energy center. Hornbacher told Council the city's water counsel believes the city has the water rights and the need to use those water rights. Hombacher said there were comments about reduced production; the majority of the energy is produced during peak water flows between May and October. Hornbacher said the city has worked with the community to find a balance with a healthy stream and energy production. Hornbacher said some of the potential revenues will be invested in healthy streams, in stream studies, in operating only when flows are the highest. Mayor Pro Tem Johnson said the city did not make a decision to abandon the small conduit exemption but gave direction to staff to explore the small hydropower exemption. Ready agreed the direction was not to enter into an agreement about that but to explore that option and no decision has been made. Mayor Pro Tem Johnson suggested a definition of cheap energy versus clean energy. Mayor Pro Tem Johnson said he has separated the appropriations and moving money to the water fund to finish the drain line. Mayor Pro Tem Johnson said he does have concerns about the increases in the budget. Mayor Pro Tem Johnson said the city needs to understand the cash flow projections, the return on investments, the life of the project, potential pitfalls in order to determine if the project makes sense and that the city is headed in the right direction. Mayor Pro Tem Johnson said he is willing to approve finishing the drain line and to continue investigating the licensing process. Mayor Pro Tem Johnson asked about the raceway part of the project. Hombacher said the 3` request before Council was the raw water pipe. Councilman Frisch said he does not want more money spent unless a contract will be breached. The drain line is 90% complete and this request is to complete it to the reservoir. Councilman Frisch said he feels the city is in over their head and there is no confidence that this project will not go over $10 million. Councilman Frisch said the hydro project was pitched as a financially viable project and the community needs to weigh in on at what cost hydropower. Councilman Frisch said the city has a great water program; however, this is stepping into the unknown and 8 Regular Meeting Aspen City Council June 27, 2011 the city may not have the expertise to build a hydro plant. However, the city does need to address a project that is 90% done and under contract. Councilman Skadron stated he takes offense to any suggestion of credibility of staff's intention; it is not staffs intention to attempt to deceive Council by piecemealing together a budget to avoid sticker shock. Councilman Skadron said without answers to the environmental questions raised about the hydro plant, should Council approve the transfer of funds. Hornbacher said the answer is yes; the drain line serves a direct purpose for the Thomas reservoir and provides a safety component to evacuate the reservoir not currently existing and irrespective of the Castle Creek energy center, there is a known risk identified to the city and that risk needs to be addressed. Councilman Skadron said the objections seem to be more about building the hydro plant. Councilman Frisch asked about the emergency drain line being used on a regular basis. Hornbacher said by constructing the drain line, it will be available for safe evacuation of Thomas reservoir. If the city proceeds with the hydroelectric operation, that operation may use that pipeline and it is proposed that the hydroelectric operation would pay for the beneficial use of that pipeline. That pipeline will always be there for evacuation of the reservoir and its first purpose. If the energy center is not built, the pipeline will still be available for evacuation purposes. Councilman Skadron said Council would not have gone forward if it had not had 100% confidence that the city has water rights to build a hydro facility. Councilman Skadron asked about the comment regarding the bond sales and purchasers. Councilman Skadron asked if infrastructure development prior to FERC approval is proper. Hornbacher said the proposed infrastructure is an integral part of the Thomas reservoir and the ability to drain that reservoir; this is a proper municipal project. Hornbacher told Council this question was posed to FERC and the city has a written answer from FERC. Councilman Skadron asked the consequences of not voting on this. Hornbacher said at risk would be the existing contract and any costs to date. Mayor Pro Tem Johnson asked about the costs associated with the request for $207,650. Hornbacher said these are costs associated with investigating the FERC process. Mayor Pro Tem Johnson noted the request for $619,290 is continued work on the drain line and delaying this decision could cost the city more money. Councilman Frisch said he is willing to appropriate the minimum amount of money to complete what is necessary. Mayor Pro Tem Johnson said he is comfortable that this expenditure is appropriate from the water fund. Councilmembers Frisch and Skadron agreed. Councilman Torre said there has never been an intention of malfeasance or doing an end around. Councilman Torre asked if typical reservoirs have an emergency drain system. Hornbacher said as reservoirs increase in size or proximity to living areas, there is an increase in drain lines or spillways. Hornbacher pointed out the Thomas reservoir is not on a stream and does not have the capability to flow back into a river. Councilman Torre asked if any reservoirs in this area have been breached. Hornbacher noted there was a reservoir above Hunter Creek, which reservoir breached and left a scar on Smugger mountain. This was a smaller reservoir than Thomas. Councilman Torre noted he has seen the opinion of the city's engineer and with the potential need for this safety outlet, he cannot overlook the safety of the citizens of Aspen. Councilman 9 Regular Meeting Aspen City Council June 27, 2011 Torre said for safety sake, he can support finishing the drain line. Councilman Torre stated he does not support the other requests with unknown budget impacts and without an up -to -date pro forma for the project. Councilman Frisch said he would like to get to a minimum appropriation and not stop the drain line work and not spend any money on the hydro plant part of the project. Mayor Pro Tem Johnson said the sense of Council is to limit the downside and to preserve the opportunity for the city and the community to become more informed on the hydroelectric plant. Councilman Frisch asked if the $207,650 is entirely hydropower plant. Hornbacher said about $125,000 of that amount is working on the FERC licensing application and on a more detailed look on going forward so the $207,650 could be reduced. Councilman Skadron said he supports the hydropower project and hope is gets built when the environmental protections are in place. Councilman Frisch asked about overruns and asking for more money after the digging starts. Hornbacher said the remaining work has moved away from other utility corridors and is on the final leg to Thomas reservoirs. Council agreed they would approve an appropriation that will move the drain line project forward and not appropriate any money that would go toward the hydropower project. Mayor Pro Tem Johnson said that would be $619,290 for the drain line and $125,000 for further FERC licensing for a total of $744,290. Mayor Pro Tem Johnson moved to adopt Ordinance #20, Series of 2011, on second reading amending the appropriation to $744,290, and approving the water fund increase of $2,802,030; seconded by Councilman Frisch. Roll call vote; Torre, yes; Frisch, yes; Skadron, yes; Mayor Pro Tem Johnson, yes. Motion carried. RESOLUTION #43, SERIES OF 2011— Appeal S /C /I Zone District — Yoga Studio Jennifer Phelan, community development department, told Council this is an appeal of a decision made by the zoning officer that a yoga studio is not an allowed use in the service /commercial /industrial zone district. Ms. Phelan said a yoga studio is considered a health and fitness facility and is not listed as a permitted or conditional use in S /C/I. Yoga studios are permitted in other zone districts. Ms. Phelan reminded Council appeals are on the record and there are 3 standards; denial of due process, abuse of discretion arbitrary or capricious exercise of authority, or misapplication of the law or excess jurisdiction. Ms. Phelan said proper notice of this hearing was given. Ms. Phelan said staff used reasonable discretion in determining a yoga studio use is not permitted in the S /C /I using typical land use definitions. Ms. Phelan said it is the job of the zoning officer to enforce zoning. Ms. Phelan stated this is a case of what the applicant would like the code to say versus what the code actually says. Staff recommends affirming staff's determination that a yoga studio is not permitted in this zone district. Mike Kubasiewicz, applicant, said he is appealing this decision. His business Dwell Pro Inc. is a surface cleaning company and emergency flood restoration company, and he is trying to invent a better cleaning machine. Dwell Pro is integrating adults with disabilities into the work force. There are 4 different machines being manufactured in Aspen that are efficient and powerful cleaning machines and on which Dwell Pro holds the patents. Kubasiewicz said since January 10 Regular Meeting Aspen City Council June 27, 2011 2011, young adults from the Roaring Fork Valley with disabilities work at Dwell Pro on Tuesday and Thursdays. Kubasiewicz told Council his space at 465 North Mill was a Pilate's and yoga studio. Kubasiewicz said young adults with disabilities often need a calming place, and yoga is a refocusing tool. Dwell Pro's workshop surrounds the yoga floor and these transitional adults understand the difference between the shop space and the yoga studio. Kubasiewicz told Council yoga instructors have been donating time to this transition program. Yoga instructors have been allowed to teach their own practices in this space outside the Dwell Pro's hours. These classes are donation based and the space is called the yoga coop. Kubasiewicz said in May these donations equaled 20% of the rent. Yoga is a vital part of Dwell Pro's work environment and Dwell Pro Inc needs the supplemental income from the yoga coop. Kubasiewicz said zoning abused their discretion in decision making. The 2008 ordinance regarding S /C /I states "that the S /C /I zone district is to preserve and enhance locally serving primarily non - retail, small business areas to insure a more balanced permanent community ". Kubasiewicz said the yoga coop is an integral part of Dwell Pro. Kubasiewicz said there is not a better way to insure a more balanced community than hiring local transitional young adults and offering donation yoga to the community. Kubasiewicz said the zoning officer clarified that the above statement should be looked at as secondary to the entire 2008 ordinance. Kubasiewicz noted that the yoga coop is secondary to Dwell Pro Inc. Kubasiewicz requested Council allow the yoga coop to continue to exist in the S /C/1 zone district. Councilman Torre asked about other appeals in the S /C /I zone. Chris Bendon, community development department, told Council this is a difficult zone to administer because the uses are so specific. There was an appeal from someone who wanted to grow marijuana; agriculture is not listed as a use so that was not upheld. Bendon said in the past, the uses have been different in the S /C/I zone and it did allow for a yoga or Pilates studio; rehearsal studio. Othello appealed for his skate board shop use and Council found in his favor. There was an appeal for an architect's studio. There was an appeal for the brewery which resulted in code changes Councilman Torre asked if there are any non - conforming uses currently in the S /C/I zone. Ms. Phelan said when Obermeyer Place was redeveloped, there were uses that were legally established and were allowed back in after the site was redeveloped. Ms. Phelan said if a use is in a zone after the uses change and it continues to operate, it is a legally established non- conforming use with the intent to allow them to operate. Councilman Torre asked what changes were made in 2008. Ms. Phelan said medical office spaces at a certain size were allowed. The yoga, Pilates and rehearsal studio uses were eliminated; artist studio was allowed only in the McFadden subdivision. Councilman Torre said he does not think there was abuse of discretion, jurisdiction or due process and this would be better served as a code amendment. Councilman Torre said in 2008, the city council went after this specific use in a code amendment. Councilman Torre asked how much space in the S /C /I zone is vacant and is the use of the district not benefitting the community. Councilman Torre said there could be some uses that would be appropriate in the zone that have not been considered. Councilman Torre said some of the applicant's business falls within the uses of the S /C/I zone. 11 Regular Meeting Aspen City Council June 27, 2011 Bendon said the challenge for staff is to apply the existing code and a yoga studio is not allowed in the S /C /I. Bendon pointed out the entire business must be an allowed use in order to keep operating in the S /C /I zone, not mostly in compliance. Bendon said Council will be looking at the AACP and how the city wants to use the S /C /I zone to further community goals. Council should also think about how to optimize properties in this particular building and whether it could be rezoned for certain uses to further different community goals. Bendon said the rental rates in the S /C /I are very attractive to businesses and many businesses try to relocate in this zone whether or not their business plan fits. Kubasiewicz told Council he could be a taxidermist or a storage facility; he is allowing local yoga teachers to use this space and to instruct, which is giving them income. Mayor Pro Tem Johnson said he would like to find a way to make this work, although this may not be the correct avenue. Ms. Phelan told Council the community development department get requests from businesses who want to move into the S /C /I zone on a weekly basis. Councilman Skadron stated he is protective of the S /C /I zone having sat through a number of appeal hearings. Councilman Skadron said he considers the broader market place and cannot provide an unfair advantage to one business over another. Councilman Skadron noted there are several yoga businesses located throughout town and he has to affirm the zoning officer's action on this use in the S /C /I zone. Councilman Frisch said there is unused space in the S /C /I zone and this business uses local instructors to teach locals and he would like to figure out a way to make this work. Bendon said running the local government in a first come first served basis will have everyone, locals with good ideas, who is aggrieved come before Council. Bendon said staff tries to approach these things with an overall goal and vision, what the community wants to accomplish. Bendon said there is a liberal policy of allowing non - conforming uses to continue. Kubasiewicz said there are restrictions in his area; he cannot park a car overnight, the noise decibel decreases at 7 PM so manufacturing would be difficult and if it were true S /C /I his business would be able to operate 24 hours /day. Mayor Pro Tem Johnson agreed he would affirm staffs decision and is interested in making this use work. Councilman Frisch said he would be interested in a code amendment. Bendon said the difficulty in doing a code amendment while in the middle of a community plan is that you get ahead of yourself. Councilman Frisch asked if there have been discussions about the S /C /I zone in the AACP discussions. Bendon said it has not been discussed at the P &Z level and it probably will be at Council. A code amendment would take staff hours and costs between $3000 and $10,000. Bendon noted in the past Council has been specific about the allowed and not allowed uses in the S /C /I zone. Bendon pointed out other zones have more general categories. Mayor Pro Tem Johnson reiterated he would entertain a code amendment for this use in the S /C /I zone. John Worcester, city attorney, reminded Council of the emergency ordinance adoption procedure if they believe public property health, peace or safety is in peril. Councilman Torre said the applicant is using the space as intended; the ancillary use is only 20% of the business. Councilman Torre said the Council often discusses having incubator space and having it available for a certain time period. Councilman Torre said he will support staff's decision. Councilman Torre moved to approve Resolution #43, Series of 2011, affirming the administrative decision; seconded by Councilman Skadron. All in favor, motion carried. 12 Regular Meeting Aspen City Council June 27, 2011 Mayor Pro Tem Johnson moved to go into executive session pursuant to C.R.S. 24- 6- 402(4)(b) Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions at 8:45 PM; seconded by Councilman Torre. All in favor, motion carried. Councilman Torre moved to come out of executive session at 9 PM; seconded by Councilman Frisch. All in favor, motion carried. Councilman Torre moved to adjourn at 9 PM; seconded by Mayor Pro Tem Johnson. All in favor, motion carried. Kathryn ch, City Clerk 13