HomeMy WebLinkAboutcoa.lu.ca.Code Interpretation.0038.2011 THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0038.2011.ASLU
PARCEL ID NUMBER NO PARCEL
PROJECTS ADDRESS 130 S. GALENA ST
PLANNER JEN PHELAN
CASE DESCRIPTION CODE INTERPRETATION
REPRESENTATIVE SFP - ABR, LLC
DATE OF FINAL ACTION 8.1.11.
CLOSED BY ANGELA SCOREY ON: 8.10.11
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CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE INTERPRETATION
JURISDICTION: City of Aspen
APPLICABLE CODE SECTIONS: 26.304.030 (F), No Multiple Applications
APPROVED 26.445.070 recording a Final PUD
Development Plan
EFFECTIVE DATE: 2u11 June 13, 2011
COMMUNITY DEVELOPMENT DIRECTOR
WRITTEN BY: CITY CF ASPEN Jennifer Phelan, Deputy Planning Director
01 I
APPROVED BY: / Chris Bendon,
Community Development Director
SUMMARY:
The Applicant, Aspen FSP -ABR, LLC currently is approved to build a lodge development as
outlined in Ordinance No. 26 (Series of 2006). The lodge project is fully entitled, having
received land use approvals and perfected those approvals by recording the necessary plats and
development agreements. Currently, the Applicant is land use review process for a proposed
residential project on the same site. k^
The City does not permit two projects to be entitled simultaneously on any one property.
However, the City does not require an applicant vacate their existing entitlement in order to
pursue a land use application for an alternate project on the same site. The Applicant's question
is at what point, or under what conditions, does land use approval for a second project override
an existing entitled project on the same site; can both land use approvals remain valid for a
period of time; and, at what point does a new approval supersede a former approval.
DISCUSSION AND INTERPRETATION:
Section 26.304.030 (F), No Multiple Applications, of the land use code states that, "the City of
Aspen shall not accept or review more than one development application concurrently on any
one property or portion of a property. To submit a new application on a property, any active
development application must be vacated."
This language prohibits two active land use applications on one property. The requirement to
vacate a development application in order to submit a new application only pertains to
applications for land use approvals. The requirement does not force an applicant to nullify an
entitled project in order to submit a land use application for the same property.
In this case, the Applicant has received a site specific approval that is fully entitled project — the
lodge project. The Applicant was and is not required to vacate that entitlement in order for the
City to accept and review a new planning application — the residential project.
Section 26.470.110 of the Land Use Code provides a limitation on the number of entitled
projects for a property. "No more than one (1) project shall be entitled to growth management
allotments on any one (1) parcel concurrently. In order to entitle a different project on the same
parcel, existing growth allotments must be vacated."
Many projects require filing of development agreements, subdivision plats, or PUD plans within
a certain timeframe after approval for the project to be considered entitled. For example, Land
Use Code Section 26.445.070, Recording a Final Development Plan, requires that all necessary
documents associated with final approval of a PUD by City Council be recorded within 180
days of ordinance approval. As noted in the section, "failure to file these documents within this
time period shall render null and void the approval of a final development plan."
Once these documents are recorded, the project is considered entitled and may proceed to
building permit review and ultimately construction. If an applicant receives approval and then
fails to record these documents, the approval is not perfected and the project is not entitled and
the approval is considered void. An applicant may choose to not record these documents
because they changed their mind, they prefer the existing entitled project, or they simply cannot
meet a requirement of the approval such as obtaining a construction performance bond. In any
case, the recording of the plats and agreements is the moment an approved project is considered
entitled. And, there necessarily is a period of time between the City granting land use approval
and a project being fully entitled.
If the Applicant receives ordinance approval for a second site specific development plan, both
plans are valid site specific development plans. Only one project may be entitled at any one
time which necessitates the recordation of the plats and agreements for a second project to
supersede and replace the former plats and agreements. It is at this point the former approval
becomes void. The timeframe for recording plats and agreements is typically 180 days from the
date of approval unless otherwise stated in the approval Ordinance. Certain extensions may be
granted for good cause.
The Applicant's Lodge project is entitled, having been approved and with all plats and
agreements recorded. The Applicant is seeking approval for a Residential project. If the
Residential project is approved, the Applicant will have 180 days (unless otherwise stated in the
approving Ordinance) to record plats and agreements for the Residential project. The Lodge
project will continue to be the one entitled project for the site until plats and agreements for the
Residential project are recorded, at which point the Residential project will be the one entitled
project for the property.
LIMITATIONS OF DECISION:
This interpretation relies on the City's Land Use Code currently in effect, which is subject to
change. This interpretation shall be valid until such time as the provision in Land Use Code
.wse
addressed by the interpretation is amended. This interpretation does not create legal or vested
right. This interpretation will be maintained in the official record of all interpretations as
provided under Section 26.306.O10.E.
APPEAL OF DECISION
As with any interpretation of the land use code by the Community Development Director, an
applicant has the ability to appeal this decision to the Aspen City Council. This can be done in
conjunction with a land use request before City Council or as a separate agenda item.
26.316.030(A) APPEAL PROCEDURES
Any person with a right to appeal an adverse decision or determination shall initiate an appeal
by filing a notice of appeal on a form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the City
office or department rendering the decision or determination within fourteen (14) days of the
date of the decision or determination being appealed. Failure to file such notice of appeal within
the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision
or determination.
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AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306
ASPEN LAND USE CODE
ADDRESS OF PROPERTY: 1 /1/R R .
Aspen, CO
STATE OF COLORADO )
) ss.
County of Pitkin )
I, �.ei.(' (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) or Section 26.306.010 (E) of the Aspen Land Use Code in the following manner:
(Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fourteen (14)
days after final approval of a site specific development plan. A copy of the
publication is attached hereto.
Publication of notice: By the publication in the legal notice section of an official
Paper or a paper of general circulation in the City of Aspen no later than fifteen
(15) days after an Interpretation has been rendered. A copy of the publication is
attached hereto.
s'
Signature
The foregoing "Affidavit of Notice" was acknowledged before me this 20 day
of _ , 20k, by .,4„ Sr c asc-c i
b� Fl ;o , WITNESS MY HAND AND OFFICIAL SEAL
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ASPEN OFFICE GARFIELD & HECHT, P.0 tau ; oft ;
601 East Hyman Avenue .
C Ir
Aspen, Colorado 81611 D C l/ = "
Telephone (970) 925 -1936 ATTORNEYS AT LAW
Facsimile (970) 925 -3008 since 1975
www.garfieldhecht.com
May 20, 2011
Mr. Chris Bendon, Community Development Director
Mrs. Jennifer Phelan, Deputy Community Development Director
City of Aspen
130 S. Galena Street
Aspen, Colorado 81611
Re: Request for Code Interpretation
By Aspen FSP -ABR, LLC (the "Developer "), the applicant in the Boomerang Affordable
Housing Project (the "AH Project "),
Dear Chris and Jennifer:
The two of you met with me, John Worcester and Jim True yesterday to discuss if, under the City
of Aspen Land Use Code (the "Code "), the Developer will retain the right to build a
condominiumized hotel pursuant to a 2006 land use approval after the Aspen City Council
approves the AH Project on the same site.
Your response, as I understood it, was that the Code does, in fact, allow a developer to retain a
pre- existing land use approval and a second approval if the property owner has not fulfilled all of
the conditions set forth in the ordinance memorializing the second approval and the time for
meeting those conditions has not expired.
Your conclusion required you to interpret Code Section 26.304.030 F., and other provisions of
the Code.
This letter represents the formal application of this Developer for a Code Interpretation from the
City of Aspen Community Development Department, pursuant to Chapter 26.306 of the Code.
The Interpretation requested is one which fully supports the conclusions you reached during
yesterday's meeting. We will appreciate an interpretation which deals broadly with the Code as
a whole, and not just the Growth Management portion of the regulations. Assuming that your
interpretation is consistent with the conclusions discussed at yesterday's meeting, the Developer
will rely on your work product if it is given the opportunity to accept an approval for the AH
Project from City Council.
Thank you for your assistance.
Mr. Bendon and Mrs. Phel*
May 20, 2011
Page 2
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Sincerely,
Rertr:i
2 fe
City ce
E. Michael Hoffman C OMPNIY
0EvEL
cc: Steve Stunda
John Worcester
Jim True
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