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HomeMy WebLinkAboutminutes.council.20111024 Regular Meeting Aspen Cite Council October 24, 2011 PLAYFUL CITY USA SIGN 2 CITIZEN COMMENTS 2 COUNCILMEMBER COMMENTS 3 CONSENT CALENDAR 4 • Resolution #70, 2011 -910 W. Hallam — Sales Contract 5 • Resolution #71, 2011— Waste Removal & Recycling Contract with MRI 5 • Resolution #72, 2011— Contract - ISC Inc. Cisco Network Equipment 5 WINTER SNOW POLO APPEAL OF SPECIAL EVENTS COMMITTEE DECISION 5 ORDINANCE #31, SERIES OF 2011 — Adoption of 2009 Building Code 7 ORDINANCE #30, SERIES OF 2011 — Castle Creek Energy Center 8 RESOLUTION #73, SERIES OF 2011 - FERC Application Minor Water Power Project — Castle Creek Energy Center 9 RESOLUTION #74, SERIES OF 2011— MOU Colorado Division of Wildlife - Castle Creek Energy Center 9 ORDINANCE #19, SERIES OF 2011 — Aspen Walk (404 Park Avenue) 12 ORDINANCE #28, SERIES OF 2011— Lift One Lodge Final PUD 17 1 Regular Meeting Aspen City Council October 24, 2011 Mayor Ireland called the meeting to order at 5:06 PM with Councilmembers Torre, Skadron, Frisch, and Johnson present. PLAYFUL CITY USA SIGN Tim Anderson, recreation department, told Council this program is part of Michele Obama's fight against childhood obesity. Aspen is one of five cities in Colorado selected to be a playful city. The things that lead to that designation were the community picnic, family fun day at the ARC, partnerships with the school district and other community organizations. CITIZEN COMMENTS 1. Peter Fornell brought up the lack of updating the cash -in -lieu payments for affordable housing, which has not been reviewed in 9 years. Fornell said the lack of updating is irresponsible and a cost to the community. Fornell said no one has taken responsibility for studying and re- calculating these fees. Fomell encouraged Council to have a study done and to increase the cash -in -lieu fees. 2. Scott Writer said he would be willing to talk to Snowmass and Pitkin County as well as private entities to divide the $5,000 four ways to get the initial inventory and feasibility study about a four mountain gondola done. Councilman Skadron said the initial presentation has been very general and he would like to know the return on investment for the city. Councilman Frisch said he supports checking in with the other governments; however, he would like to make sure it does not tum into a $100,000 study. Writer said another study would be done. This initial study would inventory the existing information, summarize that, and show a preliminary alignment. Councilman Skadron noted studies have been done on this project and the findings return more negatives than positives. Writer said this is a recreational not transportational system and it will take car trips off the highways. Councilman Johnson said the study should be done first and then the project brought to the local boards about what the project will accomplish. Writer said Council has the chance to start some momentum and to indicate they are open minded about this project. Councilman Torre said he has seen some of the original work and would like the scope of the study made smaller. Councilman Torre said it appears there is little interest on the part of Snowmass to fund this and he would rather spend time with a smaller geographic area. 3. Gram Slaton, Wheeler Opera house, introduced Amy Kaiser his new assistance from the Yale choir. 4. Elizabeth Milias brought up the recently adopted bag legislation and said this is bad legislation. Ms. Milias said big black trash bag for leaves are all right, kitchen bags are all right, there are retail stores with plastic bags, hardware stores, pharmacies, liquor stores and only those plastic bags from grocery stores are not allowed and it makes this legislation seem well intended but silly. Ms. Milias said one can buy bags in the grocery store to get around this ordinance. Ms. Milias said Council should listen to what city staff is not telling them when making decisions. 2 Regular Meeting Aspen City Council October 24, 2011 5. Tom Isaac, 975 King street, requested Council reconsider their votes of two weeks ago approving drilling a geothermal well on Neal street. Isaac said he has issues to bring up, like the unintended ramifications, like pollutions issues, that the well is within 100 feet of the Roaring Fork river, what happens to the well after the test is made, pollution of heavy metal in the river, air borne pollution. Isaac said he would like information on what permits the city has obtained. Isaac said there was no notification of this approval two weeks ago. Mayor Ireland moved to reconsider; seconded by Councilman Skadron. All in favor, with the exception of Councilman Johnson; motion carried. Randy Ready, assistant city manager, noted if Council puts off this reconsideration until November 7` it will jeopardize the contract for 2011. Mayor Ireland asked if staff is prepared to discuss reconsideration at this meeting. Ready said they are. 6. Bill Lipsey, King street, told Council he is a supporter of geothermal and he also supports the concerns about the environmental issues associated with this test well. Lipsey said he looked at the feasibility study and the city recommended a 12" diameter test well 2500 to 3500 feet deep and what is being done is a 6" test well 1000 feet deep. Lipsey said the proposal was to occupy 350 square feet and now the proposal is to occupy 3500 square feet. There were no local bids. Lipsey asked if the well is not 12" at 3500, will the data be adequate to make decisions. Lipsey said a task force of citizens was formed in. Glenwood to study the same issue. 7. Doug Allen told Council a geothermal well in the west end has been recently drilled and asked if the city is aware of the results and why can't they use that data. 8. Marilyn Marks brought up the Marks versus Koch case and if Council has acted to authorize the attorneys to file an appeal to the Supreme court on that case. John Worcester, city attorney, answered he received the direction he needed. Ms. Marks said she heard there was a vote. Mayor Ireland stated there was no vote. Ms. Marks said Council should comply with the Charter which requires the opportunity for the public to have a reasonable opportunity to comment. Ms. Marks requested time for a public policy debate on this case. Ms. Marks said the election commission has scheduled a meeting for November 1 in order to have that policy discussion on the 2011 ballots. COUNCILMEMBER COMMENTS 1. Councilman Skadron said City Council tries and make good decisions in this room; the rest of the time they are out in the community and talking with and being community members. 2. Councilman Skadron recognized the Aspen Art Museum and the Roaring Fork Open show which was a fun event. Councilman Skadron noted the abundance of artistic talent in this valley. 3. Councilman Frisch announced he received an e -mail about an election commission meeting scheduled for next week, November 1 4 PM to discuss ballots. Councilman Frisch noted the city has until November 14 to file a petition with the Supreme Court on the election case. 3 Regular Meeting Aspen City Council October 24, 2011 4. Councilman Johnson said Council gave the city attorney's office direction on the ballot case. 5. Councilman Johnson announced Aspen high school football team beat Cedaredge and lost to Coal Ridge; this week is the last regular home game and the Skier's are battling for a playoff spot. 6. Councilman Torre said the bag initiative started with Council is to get rid of most plastic bags in the community. Councilman Torre said this is one step at a time and he was surprised this is an issue with passion. Councilman Torre said his ambition for this issue is to help the bag industry change; there are biodegradable bags but not in this country. 7. Mayor Ireland concurred the Roaring Fork Open at the Art Museum was great. 8. Mayor Ireland said lots of time and energy is going into creating a way to have the 2009 ballots recounted. Mayor Ireland said the procedures for counting ballots are set by state statutes. Mayor Ireland said the Supreme Court should decide if people can looks at ballots. 9. Mayor Ireland pointed out there is an election November 1 there are school board candidates, a question for funding on Health and Human services. Aspen and Pitkin County are a wealthy community and a beautiful place to be. Mayor Ireland reminded people if they have not received a ballot in the mail, contact the Pitkin County Clerk's office. Mayor Ireland announced that the action items of Appeal of Special Events Snow Polo, Castle Creek energy Center have been moved to before the public hearings. Mayor Ireland said Council should not make decisions after 10 PM on major issues; they can hear the project or testimony but not make decisions. 10. Councilman Skadron reported RFTA met last week and had an organizational assessment done studying the staffing and organizational needs in order to transition to BRT; BRT is on time for fall of 2013 and the 2012 budget process is moving forward. 11. Councilman Johnson said he will be attending the NWCOG meeting next week and will report back on that. 12. Mayor Ireland said he attended the State of the Valley conference and was told that the population is aging; young people are moving away. There was a presentation on the efficacy of narrow streets on vitality and Council should give thought on that idea. CONSENT CALENDAR Councilman Skadron moved to approve the consent calendar; seconded by Councilman Torre. The consent calendar is: 4 Regular Meeting Aspen City Council October 24, 2011 • Resolution #70, 2011 — 910 W. Hallam — Sales Contract • Resolution #71, 2011 — Waste Removal & Recycling Contract with MRI • Resolution #72, 2011 — Contract - ISC Inc. Cisco Network Equipment All in favor, motion carried. WINTER SNOW POLO APPEAL OF SPECIAL EVENTS COMMITTEE DECISION Jeanne Cash, representing the World Snow Polo championships, and a member of the Roaring Fork Polo club, said World Snow Polo in Aspen is an outstanding event; people come from all over to see winter polo. Ms. Cash said over the past ten years, this event has grown in sponsorship, media coverage and local participation. Ms. Cash pointed out there is free admission to all spectators and this event is sanctioned by the U.S. Polo Association. The event promotes both polo and Aspen. With the event located in Wagner Park, donations to the non- profit partner Sister Cities has increased to $20,000. Ms. Cash told Council the parks department has called for no special events in Wagner Park as detrimental to the park. Ms. Cash noted the week before Christmas is historically a soft time for Aspen and this event fills up hotel rooms with polo players, spectators and vendors. Last year, polo booked over 600 room nights. Ms. Cash said the parks department has confirmed that the horses did not damage Wagner park. This is the only snow polo event in North America and Aspen's only equestrian event. Stephen Ellsperman, parks department, told Council the special event committee denied the application of Snow Polo's use of Wagner Park in December. There is an appeal process in the municipal code and the first step is appeal to the City Manager. The City Manager upheld the decision of the special event committee. Ellsperman pointed out than in September 2009, staff and Council worked on a special event matrix identifying when and where to hold special events. It was agreed at that time there would not be special events allowed in Wagner or Rio Grande parks during December. Ellsperman reminded Council the condition of Wagner Park was again discussed with Council in May 2011 and staff recommended no winter events in Wagner or Rio Grande parks. Council agreed with that direction. Ellsperman said after that Council direction staff notified World Snow Polo of that direction. Ellsperman told Council staff has worked with World Snow Polo and has tried to find other locations and times the event may take place. Ellsperman said the parks staff has spent the entire summer putting Wagner Park back together and has worked hard to have a quality park. There are a lot of special events in this one area. Ellsperman said staff's aim is to not have to close Wagner park to the public in the spring. Mayor Ireland said Sister Cities in a beneficiary of this event and to maintain impartiality, Mayor Ireland said he has decided to not accept financial support for his trip to Europe. Barry Stout, Winter Polo, told Council the organizers have received letters from the parks department stating they do not want the event in the park and will not support it. Stout said they did get a letter 5 Regular Meeting Aspen City Council October 24, 2011 advising them of this direction but the event organizers chose to go ahead with the application so Council would hear the appeal. Councilman Johnson said he has heard every year from staff that this event is an issue. Tom Rubel, parks department, told Council the horses do cause some damage; the critical issue is the compaction. Rubel showed a photo showing horse hooves in the park; horse litter and urine also cause damage. Compaction due to grooming over and over and crowds on the thin edge area cause the most damage to the park. The snow cat grooming is to provide a smooth surface for the horses. Councilman Johnson asked if this can be done without compacting the snow. Rubel said without compacting, there would be less damage. Ellsperman said the photos show actual contact between hooves and the dirt. Ellsperman said an important factor is the weather and the last two years there has been little snow covering Wagner Park. Experience over the past ten years of having the event, trying to manage the event and to protect Wagner park is why staff is recommending not allowing the event in Wagner Park. Stout told Council the photos show a lot of the dead area in the parks was not area used by Polo. Stout said Polo only compacted the park twice last winter. Stout said Wagner Park is compacted by people walking on the park every day. Rubel said turf cannot take weather fluctuations with little snow cover. Mayor Ireland asked how much extra snow cover on the park would have helped the health of the park. Rubel said 36" and a slow compaction process would protect the park. Councilman Skadron said he will support parks department recommendation not to use Wagner park for the reasons listed. Councilman Skadron said he would support this event at a different location. Councilman Frisch asked if it is common practice to tell applicants the outcome of special event meetings before the meeting. Ellsperman said he told Stout what the position of the parks department was, not the decision of the special events committee; however, with a venue and without support of the parks department, the results would be denial of the application. Ellsperman said in June Tom Rubel wrote a letter to the applicant informing him of Council's direction and parks recommendation regarding Wagner Park. Councilman Frisch asked if staff could quantify how many days this event causes the park to be closed in the spring. Councilman Frisch said he would like to see the event this year and work on ways to manage the event. Councilman Frisch said he would like to know how to maximize the use of Wagner park for the revenues and interest it generates. Ellsperman showed the matrix that was developed by staff and presented to Council in 2009; the purpose of the matrix was to do planning to accommodate as much use as possible and to have the park open as much as possible. Ellsperman said if Council wants to revisit the matrix and talk about community values that is their role. Ellsperman reiterated Council was clear in May 2011 about the use of Wagner park and the denial to use the park was based on that discussion. Ellsperman stated staff feels strongly the best way to keep the park open the longest and to have the best quality turf is by not having special events in the park in December. Councilman Torre asked about turf replacement for Wagner park. Jeff Woods, parks department, said the plan is to study that proposal in 2012 and implementation in 2013. Councilman Torre said he is aware of problems from the past. Councilman Torre said he would like to see Snow Polo stay in Aspen and suggested Rio Grande park as a better venue for 2011. Councilman Torre said there needs to be some accountability and someone to deal with the parks 6 Regular Meeting Aspen City Council October 24, 2011 staff to make sure the city requests are heeded. Councilman Johnson noted one of Council's goals is to get more Life out of Wagner and will turf replacement in 2012 help this issue. Ellsperman said if that is a goal and staff goes into planning with that goal, it may be accomplished. Ellsperman said turf and the weather are an issue. Councilman Johnson said he would like to see the event go forward; if there were enough snow, the event could happen on Wagner, if staff feels the park is in danger, then the event would take place on Rio Grande. Ms. Cash said the polo group would prefer Wagner with Aspen mountain as a backdrop; however, they could do the event at Rio Grande. Stout said one of the host hotels is the Limelight and it makes sense to have the event at Wagner. Stout said there is the same amount of snow at Wagner as at Rio Grande so the compaction issue is the same at each park. Ellsperman stated staff's recommendation is not to hold the event in either Wagner or Rio Grande park. Rubel told Council there are fewer events at Rio Grande park so there is more time to reestablish the turf. Ellsperman noted with snow levels as a trigger to a location makes it difficult for both staff and the event organizers. The decision becomes a little bit subjective. Ellsperman pointed out other city locations, like Cozy Point Ranch or the Marolt property, have been suggested to the event organizers. Mayor Ireland summarized Council thinks Rio Grande is a better location; Council does not want to cancel the event given the beneficiary. Mayor Ireland said there is a balance between casual use and special events and the balance for December means this event is best suited at Rio Grande park. Mayor Ireland suggested snowmaking at Rio Grande park; there is water available down there. Mayor Ireland said every event wants to have Wagner park for their event. Mayor Ireland noted staff has Council's authority to take whatever measures are appropriate to protect Rio Grande not limited to snow making and compaction. Wagner park needs to breathe. Councilman Skadron agreed Cozy Point would be a more ideal location for polo. Councilman Johnson added Council should go look at Rio Grande when the snow melts in May to see if there is an issue and that some other venue be used in the future and that the applicant will know that in May. ORDINANCE #31, SERIES OF 2011— Adoption of 2009 Building Code Councilman Johnson moved to read Ordinance #31, Series of 2011; seconded by Councilman Torre. All in favor, motion carried. ORDINANCE NO. 31 (SERIES 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING TITLE 8 OF THE ASPEN MUNICIPAL CODE BY ADOPTING 2009 EDITIONS OF CERTAIN INTERNATIONAL BUILDING CODES. Mike Metheny, building department, told Council this Ordinance adopts the 2009 building code; the 2003 building code is currently being used. This helps keep up with changing technology in the building industry and will also put the city in step with Pitkin County. Metheny said this has 7 Regular Meeting Aspen City Council October 24, 2011 been taken to the Board of Appeals, who supports adopting of this code. Denis Murray, building department, said this is also attempt to clean up the language and make it more concise. Councilman Skadron said his goal in adopting these ordinances is that they are clear and understandable by the people using them. Murray said this code has been adopted by all other governmental entities in the valley. Councilman Torre moved to adopt Ordinance #31, Series of 2011, on first reading; seconded by Councilman Skadron. Roll call vote; Torre, yes; Skadron, yes; Johnson, yes; Frisch, yes; Mayor Ireland, yes. Motion carried. ORDINANCE #30, SERIES OF 2011— Castle Creek Energy Center Councilman Torre moved to read Ordinance #30, Series of 2011; seconded by Councilman Johnson. All in favor, motion carried. Ordinance No. 30 (SERIES OF 2011) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING WITH CONDITIONS SUBDIVISION, REZONING TO PUBLIC ZONE DISTRICT, CONSOLIDATED PLANNED UNIT DEVELOPMENT, AND GROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR LOT 3 AND OPEN SPACE 2A OF THE MAROLT RANCH OPEN SPACE SUBDIVISION, AKA THE CASTLE CREEK ENERGY CENTER AND HYDROELECTRIC PLANT, CITY OF ASPEN, PITKIN COUNTY, COLORADO Jennifer Phelan, community development department, told Council this request is approval to construct a hydroelectric plant on Power Plant road, subdivision approval is required to create a new lot for this plat; rezoning to Public, PUD and PUD approval for a site specific development plan and a growth management review for an essential public facility. Ms. Phelan reminded Council the prior ordinance was continued a number of times, so this is a new ordinance and first reading. Ms. Phelan noted changes since the last time are elimination of the visitor room and a smaller building of the same architectural character. There will be a storage shed on the property; there will be on site parking; however, the parking structure has been removed. Dave Hornbacher, water department, noted the ordinance refers to an operational guide which will be completed and which will include information that came out of the community mediation session held in March 2011. Hornbacher told Council staff will present updated information on budget, the economic analysis, the draft of the operating guide and a discussion of other potential renewable energy sources at second reading. Councilman Johnson requested more discussion on second reading about the elimination of the visitor's center. Councilman Torre asked if the city is contracted with a company to review things like noise mitigation, vibration from the bridge, and other technical issues. Hornbacher said he will submit a list of people involved and their expertise. 8 Regular Meeting Aspen City Council October 24, 2011 Councilman Frisch asked about the exemption from stream margin review. Ms. Phelan told Council stream margin review is in front of P &Z; this project did go to P &Z; however as an essential utility that review was not required. Councilman Frisch asked if a FERC license is a simple yes or no or yes with conditions. Hornbacher said if it is a yes, there will be operating constraints. Hornbacher told Council the economic analysis will consider these operating constraints. FERC has some interest in how the economics of the plant will work. Councilman Frisch said he got a "start to finish" chart from the finance department, how this got from $6.2 million to $9.5 million, the revenue assumptions and how have these changed. Councilman Frisch said the memo notes the program could be revised and can the city change this monitoring program. Hornbacher said one suggestion is to have a stream health board consisting of 3 members. Councilman Frisch said no new employees are contemplated and how self - sufficient is this, does staff have the capacity to take on this project without adding employees. Hornbacher said much of this is automated; staff does make rounds to all the facilities and this will be included for a daily visit to make sure it is running properly. Councilman Frisch asked if this is still proposed to supply 8.5% of Aspen's energy needs. Hornbacher said when running at capacity, the plant will supply 8% of Aspen's energy needs and when running less, it will supply less. Mayor Ireland noted changes cannot be made to the plan regarding the length of monitoring — ten years or reduction of monitoring devices. Hornbacher said this is correct. Mayor Ireland asked about the price of coal since 2007. Hornbacher said price of coal has increased over the past 4 years. Mayor Ireland asked if the city agreed to submit a small hydro application. Hornbacher said through the community mediation process, that was agreed to and that will be addressed under Resolution #73. Ms. Phelan entered into the record exhibit 12, updated information from the city on the hydroelectric plant; exhibit 13 public comments on the draft FERC applications from January 25, 2011; exhibit 14 letters to the editor from Mayor Ireland. Councilman Johnson moved to adopt Ordinance #30, Series of 2011, on first reading; seconded by Councilman Frisch. Roll call vote; Torre, yes; Skadron, yes; Frisch, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #73, SERIES OF 2011 - FERC Application Minor Water Power Project — Castle Creek Energy Center RESOLUTION #74, SERIES OF 2011— MOU Colorado Division of Wildlife - Castle Creek Energy Center Dave Hornbacher, water department, said Resolution #73 directs staff to apply for a minor water power project under FERC guidelines for the Castle Creek Energy Center. Hornbacher said the city, after consulting with FERC and other referral agencies, started a process for a small conduit exemption. Hornbacher said there were 7 meetings starting in 2007. The city also published an environmental report by Dr. Miller. In September 2010, the city was asked to delay this project for a community mediation session which was held in March 2011 and the results were 9 Regular Meeting Aspen City Council October 24, 2011 published in May 2011. In April 2011, Council directed staff to move toward a minor water power project permit. Hombacher reminded Council one of the outcomes of the mediation session was a recommendation that the city pursue a minor water power project; this also continues public participation. This step builds on and furthers the environmental work that has been done. This process brings differing opinions together to achieve a resolution and ultimately a license for how the Castle Creek Energy Center would operate. Councilman Frisch asked how good FERC is about laying out the steps to go through and what those steps will cost. Hornbacher said some of the work that has already been done can be used for the FERC license. Once in the process, FERC will define more specifically the requirements. Councilman Frisch said he would like a higher degree of confidence about the amount of money needed. Councilman Frisch asked if staff checked with other communities about how much this process cost. Hornbacher told Council staff got estimates of cost of filing FERC permits from the city's water counsel. Mayor Ireland noted Resolution #74 adopts a memorandum of understanding with the Division of Wildlife and that MOU states Aspen will continue to operate its Maroon Creek hydroelectric diversions on Maroon Creek in a manner that will allow maintenance of an in stream water flow of 14 cfs down stream of the point of diversion. Stream flows on Castle Creek at the point of hydroelectric diversion are insufficient to permit Aspen to maintain the foregoing minimum flow, Aspen shall reduce its hydro diversion as needed to allow the in stream flows to be maintained. Mayor Ireland asked if there are other water diversions from Castle Creek. Hornbacher said there are other diversions, more than a dozen. No other diverter voluntarily agrees to stop taking water from the stream when the stream flows are low. Ken Neubecker, western rivers institute, told Council he appreciates the city moving to a FERC license process as a step in the right direction. Neubecker said he is not convinced the hydro plant is the best way to go; there are other alternative energy methods that would meet the same needs. Neubecker said adaptive management could be better defined in the MOU. Neubecker applauded the city for committing to meet the minimum stream flow; however, the minimum stream flow will not maintain a healthy stream for the long term. Neubecker noted Aspen is the most senior and largest diverter on the stream; if others could be engaged to help that would be a good thing. Tim McFlynn thanked the city for taking a time out from this process for the last year. McFlynn suggested tabling further action on this issue. A year ago Healthy Rivers starting raising money to hire independent counsel; the goal of that work is how to insure healthy functioning stream eco- systems are perpetuated notwithstanding diversions or operating protocols. Mc Flynn said that work will be finished soon and it would be helpful to table this until that report is available. McFlynn said there have been questions about whether the economic analysis was thorough enough or could be enhanced. If there are modifications to the project, what will the revenue implications be. McFlynn said in the ordinance and the resolution under environmental assessments, there is a summary that purports to be recommendations from the community mediation. McFlynn said what is in the packet is a shell of recommendations of from the mediation committee. McFlynn said if the city wants to build on collaborations of the past year, it is important to track what came out of these processes. McFlynn noted that small start was recommended at these forums. 10 Regular Meeting Aspen City Council October 24, 2011 McFlynn noted what was not picked up is that the board of experts have to be experts in the field; have to have the power to specify and to modify from time to time as needed the details of a rigorous monitoring plan included the impacts; that they will hold open meetings. McFlynn pointed out an important omission is that this board of experts will be empowered to impose limitations on the operations and diversions as may be required forever. McFlynn said the city is doing more than they have to but there are other things that can be done. McFlynn said the operational guide of how diversions will be conducted by the water department and the budget will not be available until the third week in November and these resolutions should be continued in order to go with that information. McFlynn said there are alternatives, like retrofitting Ruedi which could produce 10 to 20% with no additional water. McFlynn urged Council to get this project as right as it can be and minimum stream flow should not be the bench mark for the best that can be done. McFlynn said there is no return flow to Maroon Creek, which is what drew him into this process. McFlynn thanked Council for changing from a conduit exemption to a FERC review and for agreeing to a NEPA review. Hornbacher said the operating agreement is intended to embrace the principles put forth at the community mediation and to provide the basis from which further dialog can be had over the specific elements through the FERC process. Mayor Ireland said this is difficult because there is on- going litigation against the city. Mayor Ireland noted the report from the mediation committee is included in the packet materials. Mayor Ireland stated he cannot hand veto power over the city to another jurisdiction. Mayor Ireland said Council is committed to having an enforceable stream monitoring protocol that focuses on health of the stream. Maureen Hirsch pointed out something to be corrected in the MOU in #12 still refers to the small conduit hydroelectric facility. Ms. Hirsch said most licenses list for 50 to 75 years before they have to be renewed and the MOU ends in 10 years, which may be limited and what happens after ten years to the monitoring. Ms. Hirsch encouraged Council to put permanent stream gauges on both creeks. It is important for the community to be able to look at the readings and have them on line. Mayor Ireland agreed an extended period of time for stream monitoring is reasonable; Council agrees the health of the stream is not measured just by the amount of water in it. Mayor Ireland said the litigation filed against the city makes it difficult to have discussions. Councilman Frisch asked if there is a way to have measurement of the quality of water to make sure the rivers are not just cfs. Jasmine dePagter requested Council look at the letter. Ms. DePagter stated they do not believe the city has the water rights for hydro to move forward; their intent is to keep the water in the stream and the city's intent is to take the water out of the stream. Mayor Ireland said the city has a plan for measuring both qualitative and quantitatively. Mayor Ireland said he would like staff to see if some of the public's suggestions can be incorporated. Hornbacher said the plan is written at not less than ten years so the monitoring could be extended. Mayor Ireland said it is not just the amount of water but the quality of the riparian area adjoining the stream and when the water is present. Mayor Ireland said he would like staff to see if they can strengthen the plan and provide further assurances to the public on that issue. Hornbacher told Council the MOU is a strong base from which staff can work off and continue to build on and to add recommendations to the MOU. Mayor Ireland said Council would also like staff to look at auxiliary things that can be done to increase alternate power or to decrease use of electricity. 11 Regular Meeting Aspen City Council October 24, 2011 Councilman Frisch asked when the city will be committed to the project and go forward. Hornbacher said this is incremental and if Council reconsiders, they are not totally committed to the project. Mayor Ireland stated the city will not commit money to construction with FERC approval. Councilman Frisch said one concern is that this project is already 50% more than the anticipated cost when this went to the voters. Councilman Frisch said he would like to make sure, at this higher cost, that this is still the way to get alternative energy per kWh of cost. Mayor Ireland said for him the issue is whether this will pay for itself. Mayor Ireland agreed that the city will not proceed with this project until Council is assured it makes economic sense and that cannot be answered until this goes through the FERC process. Councilman Frisch supports the FERC process as proposed. Councilman Frisch said he would like to see some of the suggestions from the public added to the MOU and how is it guaranteed those suggestions get into the MOU. Hornbacher said if the city determines what would bring value and this is a minimum of what the city proposes to do, not the maximum. Councilman Skadron moved to approve Resolution #73, Series of 2011; seconded by Councilman Torre. All in favor, motion carried. Councilman Johnson moved to approve Resolution #74, Series of 2011; seconded by Councilman Skadron. Councilman Torre said some suggestions he heard he would like incorporated and how will that happen sooner rather than later. Hornbacher said the 10 -month reporting period he will include in a letter to the Division of Wildlife and request that change. Hornbacher explained there is a period of time from when the sample is taken and when the analysis is done and the reporting. Hornbacher said going behind ten years and the sequence of that, staff can work with the Division of Wildlife to determine a reasonable cycle; the MOU is written that this will not do anything less than ten years; however, the city can do more and can determine what is sensible and reasonable. Hornbacher said this MOU will also be part of the application to FERC and can demonstrate the tangible pieces in place and the commitments made to the community. All in favor, with the exception of Councilman Frisch. Motion carried. ORDINANCE #19, SERIES OF 2011— Aspen Walk (404 Park Avenue) Jennifer Phelan, community development department, reminded Council there have been a number of public hearings and the application has been modified. The current proposal is for a new multi - family development of 26 units, 14 affordable housing and 12 free market units. Ms. Phelan pointed out since September, the applicants have further differentiated the mass of the project. Some issues from previous hearings were that the mass be broken up to a greater extent. Exhibit Z2 are the revised condominium declarations with summary and Z3 the HOA draft, which will create two separate districts between the affordable housing and the free market in order to protect the affordable housing units. There are fewer affordable housing units than in the original proposal; however, the units have more bedrooms and greater net livability. All the units meet the minimum APCHA standards for size. The category mix is units 3 and 4. 12 Regular Meeting Aspen City Council October 24, 2011 Balconies and deck have been added to the units; there is more storage in the garage. The applicant will also purchase 17.5 affordable housing credits off -site to mitigate for the project. Ms. Phelan said the status of the existing residents in APCHA housing has been discussed and APCHA is offering a rental or purchase option to the residents at the category for which they qualify. The bankruptcy status was addressed by the city attorney in his memorandum and he opined it was all right to proceed. Ms. Phelan said the architecture has evolved though this process and the free market portion has been divided into two buildings; the roof top deck has been removed; the palette of materials has been modified to individualize the buildings. Tom McCabe, APCHA, told Council staff looked at the protected renters on the property. They have been re- qualified to categories 1, 2, and 3; five out of six of these renters have indicated they would like to purchase units and the housing office is working on a way to do that; the exact locations of those possible units is not known. Mayor Ireland said he would like these residents to have an agreement in writing about relocation. McCabe said there are a lot of variables including the time line to write a document. Stan Clauson, representing the applicants, said the applicants would accept a condition of approval that the tenants be given a written firm guarantee regarding relocation, which is their understanding. Clauson pointed out the 2000 AACP addresses the need for infill in existing neighborhoods. Clauson said this project meets the code in every respect; this is a form of infill development. Clauson noted these buildings are in deteriorated conditions. There is 100% housing replacement. There is no increase in density, the number of units is 26; currently there are 25. Clauson said this meets AACP community goals without impact on open space; this is a public private partnership which has been endorsed by the AACP. Clauson reminded Council there has been a reduction in project size. The first iteration was an ambitious project; in October 2008, the project was reduced to an FAR of 1.28:1 at which time they were granted conceptual PUD with a suggestion from Councilman Skadron he would like to see the FAR at 1.25:1. This final submittal has a 1.23:1 floor area ratio. The number of units has decreased in order to provide a different disposition of the buildings and larger affordable housing units. Clauson noted issues from the previous meeting were HOA declaration of covenants, refinements to the parking garage, exterior color and variation, and neighborhood dynamics. Clauson said the applicants believe these questions have been addressed and the neighborhood dynamics are ephemeral; however, this project should enhance the livability and the viability of the neighborhood. Clauson showed a 2007 drawing illustrating the footprint of the building, which was one solid mass. In July 2011, the buildings were divided with a center walkway and in October 2011 the buildings were further divided. Clauson said Aspen Walk has a 32' height; the adjacent Tailings measures at 29' at the peak; Midland Park has a variety of peaks of 33' to 24'. In general, this is consistent with the neighborhood in terms of height. Clauson said this project would take cars off the street and out of the city right -of -way. There is a driveway to the subgrade parking which requires a technical height variance to 41'; however, visually it is 32' from grade. The interior gate in the garage has been removed. There are 21 dedicated parking spaces for affordable housing, 24 free market spaces, 2 handicap /visitor spaces. Additional storage for affordable housing in the garage has been provided. A total of 47 parking spaces are planned, which is more than the code requires. 13 Regular Meeting Aspen City Council October 24, 2011 Clauson said neighborhood comments have been addressed; to address concerns from the Tailings the building was moved away from them. There were also concerns from Midland Park resulting in additional screening, removal of the roof decks. There is a pedestrian element through the building, there is a courtyard between the buildings and one can see through the buildings. Clauson said at the prior meeting there was a request to differentiate the buildings with different color schemes. The applicants worked with staff and presented the preferred color scheme, which is consistent with the range of architectural styles found in the neighborhood. This partnership will provide affordable housing to the city at no cost to the city. There is a net gain of affordable housing units on site; 17.5 FTEs will be provided off site. This meets all the mitigation requirements and meets the affordable housing guidelines. The units will be category 3 and 4. Clauson said there is one three- bedroom category 4 unit and 4 studios, category 3. The other 9 are a mix of categories 3 and 4. The increase in affordable housing bedrooms is from 13 existing to 25 bedrooms on site. Clauson told Council the condominiums documents establish autonomy with two different districts and are to insure long term affordability. These are also to address concerns on APCHA oversight, which is to be limited to those issues representing a change to the declarations. These have been reviewed by the housing and city attorneys. Clauson reiterated the key points are that this meets the AACP goals and the code requirements. Clauson said the applicants feel this will provide a livable and vibrant neighborhood. Clauson said the applicants have worked with the city engineer on infrastructure issues. Molly. Foley Healy told Council there were negotiations about the best way to structure the homeowner's documents. Ms. Healy said in order to make the project marketable for the free market units, it would be necessary to have a three member free market board and a two member housing board. Ms. Healy said she feels the two district system gives adequate protection. This five member board would have jurisdiction over only the garage. Ms. Healy said she built into the common element improvements for garage that any common element improvements must be made uniformly and the free market units must cover 85% of the costs of the improvements. Ms. Healy noted there are two places where APCHA has authority and Council expressed concern about the big brother approach. There are mortgagee consent provisions where lenders have consent to make sure loans can be sold on the secondary market. APCHA has consent with regard to the general comment elements, improvement to the garage, and district common elements if 67% of the owners agree to assume a portion of improvement costs. Ms. Healy said she built in a requirement that the affordable housing owners create a reserve study plan, contribute a percent of the budget every year to the reserves. Councilman Johnson asked if it is unusual for APCHA to be involved in the process like this. Ms. Healy said APCHA is working on a proactive approach with homeowners. Tom Smith, APCHA attorney, noted this agreement is more aggressive in protecting the affordable residents from special assessments that might be desired by the free market owners by creating two different districts. Ms. Healy said it is a delicate balance between the capital spent by free market owners and protecting and enhancing the affordable housing units. Councilman Skadron said he would like to prevent gentrification of this neighborhood like happened in the west end, the exchange of vibrancy for exclusivity. Councilman Skadron said neighborhood character can be expressed in two ways, built environment and a social dynamic, 14 Regular Meeting Aspen City Council October 24, 2011 which is apparent in this neighborhood currently. The residents provide a flavor and attitude. Councilman Skadron said he would like to adopt a strategy in this development that protects the social character, flavor and attitude. Councilman Skadron asked to what degree does a development like this increase property values that force out other homeowners. Clauson said he does not believe this development will drive people out and will decrease the vibrancy. Clauson said there is a deteriorating series of building, which will go away and the property values may increase. Clauson noted sidewalks, underground parking, and high quality housing will be an addition to the neighborhood. The affordable housing built into this neighborhood precludes the west end affect. The purchasers of the free market units will be people who are willing to live in a mixed neighborhood. Councilman Frisch said if this is not approved, some other development that does not look like the rest of the neighborhood will eventually occur there. Mayor Ireland opened the public hearing. Marcia Goshorn told Council she has been on the housing board for nine years. APCHA looked at redeveloping the portion of this property owned by them and it would have cost $3.5 to $4 million. APCHA wanted to find a way to get affordable housing built without taxpayer money. Ms. Goshorn said the agreement worked out with the tenants will give them certainty now so they don't have to wait until construction starts. Peter Fornell, Midland Park, told Council most of the residents of Midland Park said they would prefer something else than what exists. Fornell said he supports the project and the land use code should do its job for this development. Judy Kohlberg, Midland Park, said she has been following this development for the past ten months. Ms. Kohlberg applauded the applicant for refining the project; they have made changes neighbors asked for by removing the roof top deck, breaking up the free market into two buildings, increased the size of the affordable housing units. Ms. Kohlberg stated redevelopment of this parcel is not the issue; the issue is what it was being redeveloped with , which is not compatible with the existing neighborhood. Ms. Kohlberg said she does not think the purchasers of the free market units will contribute to the neighborhood. Ms. Kohlberg said the development is too dense and with too much mass. Ms. Kohlberg said an all affordable housing project would have been a better solution rather than hiding the affordable housing on the back of the site. Tom Griffiths, Midland Park, asked if the requirement for 100% pre -sale for the free market units is still there. Tom Salmon said that was a requirement from their lender; the city's requirement is financing the city finds acceptable to complete the project. Griffiths suggested the Council consider high level pre - sales, but not 100 %, as part of the financial requirements for the project. Griffiths acknowledged the applicant for working with Midland Park homeowners on eliminating the roof top deck, the lighting, the stairwells. Griffiths noted the lighting schedule calls for recess step lights and are these recessed into the stairs. Somebody said these are on the sides of exterior stairs. Councilman Skadron asked if there is consensus from the Midland Park HOA on this project. Griffiths said in general Midland Park homeowners are glad the deteriorating building will be torn down; there will never be consensus about the mass and scale, the architectural style or the configuration. Griffith said the proposal is better than what is there now. Cindy Houben, Midland Park, told Council she has reviewed the ordinance and suggested some changes to make it clearer, for instance there be satisfactory evidence the application has 15 Regular Meeting Aspen City Council October 24, 2011 sufficient financing before any submittal for building permits. The suggestions were related to financing and performance bonds issues and money to complete the public improvements. Ms. Houben said any changes to the approved categories should be reviewed and approved by Council. Ms. Houben said the issues are how this is followed through, how the assurances are followed up on. Ms. Houben noted paragraph c on page 7 does not state that the offsite housing replacement should be category 1 and 2. Ms. Phelan said categories 1 and 2 are not required. Clauson said it was discussed with the housing board that these could be category 2; the bonding will occur under category 1 level to provide an additional level of support. Ms. Houben said she would like to see the bedroom mix of the replacement units clarified. Ms. Phelan said the replacement requirement is for 17.5 FTEs, no bedroom mix is specified. Ms. Goshorn said these issues are covered in the joint development agreement. Ms. Houben said the joint development agreement could be referred to in the ordinance. Ms. Houben said any changes to the joint development agreement should be approved by City Council. Ms. Houben pointed out there are stipulation regarding the superfund site and it should be noted in the ordinance that appropriate measures per the city /county superfund stipulations will be required to manage the project. Ms. Houben said section 18 about the site protection fund is unclear, why $100,000 is the amount and what is the difference between the site protection fund and the in lieu assurances. Ms. Phelan said the elevations, site plan, approved height, section, approved lighting and landscaping plans will be recorded with ordinance. The intent of the site protection fund is if the project stalls, there is an amount the city can withdraw on and remediate the site, if necessary. Mayor Ireland said the applicants stated they were doing these things so the changes suggested by Ms. Houben can be incorporated into the ordinance, subject to the city attorney's review. Ms. Houben suggested "eyesore" be added to the section about site protection Mayor Ireland closed the public hearing. Clauson said most of Ms. Houben's comments are an amplification of what is already in the ordinance. Clauson noted some of the comments requested things be completed before building permit submittal; in the ordinance requires these things be completed before a building permit is issued. Clauson said the latter is more correct and can be addressed during the changes required in building permit approval process. Clauson said the applicants did understand that public improvements included landscaping. Clauson said this applicant would like to be able to move forward and is prepared to incorporate changes that make sense. Councilman Johnson said he likes the changes to the livability of affordable housing, the increased size, and the decks. Councilman Johnson said he likes the public /private partnership and the gate between the parking areas has been removed. Councilman Johnson said his issue is with the condominium documents and the term "community work force housing ", which may be an industry term but in Aspen people use the term "affordable housing" and he would like that term removed from the condominium documents. Staff agreed that could be done. Councilman Johnson stated he can support the project with the minor revisions listed above. Councilman Torre stated his concerns have not changed; mass and appropriateness for the neighborhood. Councilman Torre said the renderings do not show the buildings as being broken up, just a brief sliver; there is no sight line between two buildings. Councilman Torre stated he does not support the layout of the buildings; the middle building sits on top of a lot line, which adds to the massing. Councilman Torre said a massive underground garage with interior access 16 Regular Meeting Aspen City Council October 24, 2011 to units does not give liveliness to the neighborhood. Councilman Torre said the internal courtyard is surrounded by walls. Councilman Torre said this neighborhood and the community deserves better. Councilman Torre agreed the existing buildings have seen better days but he does not want to sacrifice the true feel of a large parcel. Councilman Torre said the changes do not go far enough for him. One of the biggest issues is how this fits into the neighborhood. Councilman Torre said Council needs to revisit the codes that allow this type of demolition and replacement. Councilman Torre said he feels this project could have been better and some of Council's requests were ignored. Councilman Frisch said this project has come a long way. Councilman Frisch said he would have liked the project to look like it was built at different times. Councilman Frisch agreed that more work should be done to make the project fit into the neighborhood. Councilman Frisch said before he votes in favor, he would like to see a smaller project. Councilman Skadron concurred with comments of Councilmembers Torre and Frisch. Councilman Skadron said his comments have to do with neighborhood character and social dynamic. Councilman Skadron said he does not feel the free market buyers will be invested in the community and this fails to meet the first criteria of subdivision review and he will not support the project as is. Clauson pointed out a tremendous amount of work has gone into this project and there have been many meetings and numerous iterations of the project. Clauson noted other boards have stated they do not want projects looking as if they were built at different times. Clauson said the neighbors, in general, support the project. Clauson noted the land use code allows for a free market component. Councilman Torre stated the design of the building and the layout do not offer any relief from the massing and there could be small changes to affect that for the neighbors. Mayor Ireland said the issues he heard from Council are that the buildings are too close together, that there is no perception of separation, some concern about the materials. Bendon said staff feels this is a good project and they would like to salvage some of it Mayor Ireland moved to continue Ordinance #19, Series of 2011, to November 28, 2011; seconded by Councilman Skadron. All in favor, motion carried. ORDINANCE #28, SERIES OF 2011— Lift One Lodge Final PUD Councilman Johnson recused himself as he lives within 300 feet of the project. Chris Bendon, community development department, suggested this be continued to a meeting tomorrow at 4 PM. Mayor Ireland moved to continue Ordinance #28, Series of 2011, to 3 PM, October 25, 2011; seconded by Councilman Torre. All in favor, motion carried. Council left Chambers at 11:20 PM % ! 17