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HomeMy WebLinkAboutminutes.council.20111102 Special Meeting Aspen City Council November 2, 2011 Mayor Ireland called the meeting to order at 4:05 PM with Councilmembers Frisch, Skadron, Johnson and Torre present. Mayor Ireland noted there are two issues on the agenda, appeal of passage of HPC resolutions regarding Little Annie's and the Benton building and whether HPC had jurisdiction. Mayor Ireland suggested the jurisdiction issue be deal with first. Council agreed. Chris Bendon, community development department, said this meeting is to review two decisions by the HPC - one a decision to not allow demolition of the Benton building and second - a decision to allow demolition of the Little Annie's building. Bendon noted both buildings are located in the commercial core historic district and neither building is individually designated as a historic landmark. The applicant is appealing HPC's decision to not allow demolition of the Benton building. Council requested review "call up" of HPC's decision to allow Little Annie's building to be demolished. Council's discussion is whether HPC had jurisdiction, abused its discretion or denied due process. Bendon pointed out this is not a public hearing but is Council examination of the record of the HPC meeting and the work the HPC did. It is not an opportunity for new testimony or new documents. Bendon said allowing new testimony or new information is not fair to the applicant or to the HPC and staff has not forwarded additional correspondence to Council on this issue. Bendon told Council the applicant argues the HPC does not have jurisdiction over non- landmarked building in the commercial core historic district. Bendon noted the issue of jurisdiction be completed first because it applies to both buildings. After that, staff suggests a discussion on the action not to allow demolition of the Benton building and whether HPC abused its discretion or denied the applicant due process. The last issue will be Council's call up of the decision regarding Little Annie's. Councilman Johnson stated the building in which he does business may be owned by a partner of this proposal; however, Councilman Johnson said he can be impartial in this discussion. City Attorney John Worcester said he is satisfied Councilman Johnson has brought up a potential problem and the applicants are waiving any objection. Mayor Ireland asked who owns Aspen Core Ventures LLC. Stan Clauson, representing the applicants, told Council Nikos Hecht is a principle but he does not know the rest of the ownership structure. Mayor Ireland said it is a problem not knowing the owners and Council cannot determine conflict of interest if they don't know who owns the property. Clauson stated the applicants agree public comment is not appropriate in this type of hearing. Clauson said the applicant's premise is that neither building is on the list of designated historic properties and because of that HPC did not have jurisdiction over a demolition review. Clauson concurred that both properties are within the commercial core historic district and that HPC does have purview over development review. Clauson said HPC jurisdiction over demolition is limited to structures listed on the inventory. Clauson showed Council the pre - application conference summary which states the properties are not designated as historic but are located in the commercial core historic district. This statement is repeated in the code sections. Clauson told Council at the pre - application conference, staff asked the applicant to consider saving the Benton building and indicated the city did not have the authority to require it. 1 Special Meeting Aspen City Council November 2, 2011 Clauson presented exhibit 3, which has a heading of "commercial core historic district" with lists of specific properties and the ordinance that established those properties historic; this property is not on that list. Clauson said the heading is simply a heading, nothing more. Clauson noted nothing in the Aspen inventory that suggests a property not on the Main street historic district is de facto a designated property and only those properties added by ordinance to the Main street historic district are landmarked historic properties. Clauson showed exhibit 4, the staff memorandum of September 20` which states neither of these buildings is designated landmarks. Exhibit 5 reiterates that these buildings are not designated. Clauson noted nowhere in staff memorandum suggests that any and every structure within the Main street historic district is a designated structure and is subject to demolition review. xhibit 10 is a chapter of the old code to show the definitions in 26.415 which contains a distinction between a designated property and a historic district and this has been the case throughout iterations of the land use code. Clauson said this goes back to 1988 when there were revisions to the land use code establishing a list of designated properties and a historic overlay district which is an area designated by city Council and historic landmark which is a structure designated by Council. Clauson said neither of these structures are on any List as a designated landmark. Clauson presented Ordinance #49, Series of 1974, which established lots and blocks that constitute the historic district and there are no provisions within that district that there are any restrictions against demolition and in 1974 this structure was eight years old and the notion that this was de facto made historic by establishment of a district in 1974 does not make sense. Clauson presented a distinct development approval, which was part of the code in effect until 2002 and staff contends because one is in the district they are defacto a landmark and subject for demolition review. Clauson showed language in the code stating that inclusion of the structure within an H historic overlay district shall not be sufficient to satisfy the requirements of historic designation. Clauson reiterated being in a district does not make one a historic structure or on the list. Clauson showed another part of the old code discussing how development is handled, which was changed in 2002, and that no demolition of any structure included in the inventory of historic sites and structures shall be permitted unless approved by HPC, which clearly links approval for demolition and being on the list. Clauson stated neither property has ever been on that list. Clauson noted an older code, exhibit 24, in Ordinance #9, 1991, provides a list of exemptions for demolition of a structure within H, historic district and the first exemption is that the structure is not identified on the inventory of historic structures. Clauson told Council this was eliminated in 2002 and the code changed to eliminate the exemption and states only if it is on the list is it subject to review. Clauson showed a document on the state of Aspen Area 2008 relating to historic preservation with a sentence stating the city has 280 properties designated historic with a chart showing when properties were designated historic. The designations were all by ordinance and there is no ordinance that has designated either of these properties historic. Clauson said this property has not availed itself of any of the benefits of Aspen modem. Clauson presented the current code that historic properties are divided into two categories, Aspen Victorian and Aspen Modern, properties associated with Aspen's 20` century history. This property is not on either list. 2 Special Meeting Aspen City Council November 2, 2011 Clauson said in fairness some properties in the historic district are on the Aspen Modern list, like Mason & Morse. Clauson stated if being in the historic district means a property is protected, it would not need to be listed on the Aspen Modern list and being on this list confers significant benefits on properties, including a 90 day negotiations period. The Benton building and Little Annie's are not listed on Aspen Modern; they have no benefits under that ordinance. Clauson said because of the CC historic district, there is jurisdiction with respect to the redevelopment of the property and redevelopment should be consistent and compatible and supportive from historic resources in the district. Clauson stated the applicant does not believe the HPC does not have jurisdiction over demolition review. Amy Guthrie, community development department, noted the memorandum identified 5 examples of non - individually landmarked buildings where HPC exercised jurisdiction over demolition. Ms. Guthrie noted that the historic preservation program was established in 1972; • Council created a Historic Preservation Commission, gave them standards and guidelines and explained how properties and districts would be designated historic. The commercial core historic district was created in 1974. There was a letter sent to property owners in the proposed district explaining the public hearings and that in a historic district all land, vacant or otherwise, come under the supervision of the HPC and no permits for demolition of any structure within the district will be allowed without review. There is proof letters were sent to two of the owners of these properties that they would be included in a historic district. A notice of designation was recorded with the Pitkin County Clerk showing this property was in a historic district. Ms. Guthrie noted the current code in 26.415.030(a) describes the establishment of the historic district which formally recognizes properties including districts have special significance. Ms. Guthrie noted the inventory includes districts. Ms. Guthrie showed a map depicting properties within HPC purview, showing the commercial core district is included. Section 26.415.080 of the current code says, "demolition of designated historic properties" no demolition of properties designated on the Aspen Inventory of Historic Landmark Site and Structures will be allowed unless approved by the HPC, which is the jurisdiction for historic review. Another section of the current code, 26.415.060 Effect of designation, also notes that being located in a historic district requires review. Ms. Guthrie told Council in the pre - application process, staff identified that demolition review would be necessary. The applicant referred to a public handout which also identifies the historic district is on the inventory and under HPC purview. Councilman Johnson asked how the work on Ordinance 48 and Aspen modern, which is voluntary, apply to this situation. Ms. Guthrie said there has not been a proposal to include this in Aspen Modern; that would be the applicant's decision to participate in Aspen Modern. HPC merely discussed the demolition proposal and found it did not meet the standards. Councilman Johnson said the point of Aspen Modern was not to force people into involuntary designation and what makes this different. Ms. Guthrie said this property is located in a historic district and did not mandate this be brought into Aspen modern but that demolition criterion was not met. Bendon said Ordinance 448 was not to extend the historic designation to properties unless that was the property owner's desire. Councilman Frisch asked if one buys a building in the historic district, they should assume it has to go through HPC. Ms. Guthrie said yes. The process for land marking individual sites 3 Special Meeting Aspen City Council November 2, 2011 happened before the inventory was created. Councilman Johnson said if someone received a c/o today for a building in the district and wanted to tear it down tomorrow, would it be under HPC's review. Ms. Guthrie said if a site is in a historic district, it would have to be reviewed by HPC before a demolition permit would be issued. HPC has to make a determination based on criteria; they have jurisdiction over a new building by virtue of being in the district. Part of the criteria is whether a building makes a contribution to the overall historic district. Mayor Ireland said one argument is when the city adopted the list of buildings, the adoption of that list freed up building in the historic district unless they were specifically on that list. Clauson noted the code currently states only those buildings currently designated historic are subject to demolition review. Mayor Ireland said the argument is the effect of adopting Ordinance 48 is to change the existing historic districts. Clauson said Ordinance #48 reinforces his notion by identifying on a list those significant post WWII buildings; prior to Ordinance #48, the code states demolition review is subject to buildings on the inventory or on the list. Clauson said the basic issue is that this is not a historic structure and is not subject to HPC review before demolition. Mayor Ireland moved to go into executive session at 5:05 PM 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; seconded by Councilman Torre. Dave Lenyo, Garfield & Hecht, asked who will be representing the city in the executive session. Worcester said he and Jim True, special counsel, will be representing the Council. Bendon reiterated the question, does HPC have jurisdiction over buildings in the historic district that are not individually designated and staff's opinion is that HPC does have jurisdiction. Clauson said they agree HPC has jurisdiction over development in this historic district; they do not agree HPC has jurisdiction within the district regarding demolition. Ms. Guthrie said the purpose of the district is to maintain the overall character; when the district was created there was notice and the city has proof of that notice; the current code is clear that it includes both individual properties and historic districts. Councilmembers Johnson, Torre, Mayor Ireland in favor; Councilmembers Skadron and Frisch opposed. Motion carried. In the executive session are all Council, Kathryn Koch, John Worcester, Jim True, Chris Bendon and Amy Guthrie. Councilman Frisch moved to come out of executive session at 5:35 PM; seconded by Mayor Ireland. All in favor, motion carried. Mayor Ireland said taking public comments would be detrimental to the city's position should there be a lawsuit. Mayor Ireland moved to uphold the jurisdiction of the HPC on the ground that the district itself is listed on the historic list of Aspen inventory of historic structures, properties and district and therefore, the actions in 2002 and later did not disinclude or change the status of properties within historic districts; seconded by Councilman Skadron. 4 Special Meeting Aspen City Council November 2, 2011 Councilman Frisch said he would like to add clarity so this is not an issue again in the future. Mayor Ireland said to find that there was not jurisdiction would be to say 2002 had the effect of de- designating the historic district, which was not the intent or the language. Councilman Skadron agreed with staff that the purpose of the district was to maintain overall character. Councilman Skadron said clear notice of the effect of the historic designation was given and that 415.080 is the current law and that HPC has authority to review demolition. Councilman Johnson said he feels that 415.080 states properties designated on the inventory, which are specific lists of properties. Councilman Johnson said he does not see the list includes these properties. Councilman Johnson noted 415.030 mentions that the district are part of the historic area, however, the location of properties Listed on the inventory is included. Clauson reiterated the reference to the inventory is very clear with respect to demolition. Clauson said it does not make any sense if everything in the historic district comes under the full purview of the HPC for purposes of demolition and to specifically name Aspen Modern properties within the district since everything within the district should come under that designation. Clauson asked if any of the 5 properties specified has having review had been denied demolition. Clauson said this property is not on the list although it is clearly Aspen Modern; it did not qualify for the list nor did it receive any benefits. All in favor with the exception of Councilman Johnson, motion carried. Clauson said the Benton building has been heavily altered over the years. Clauson noted the HPC has agreed with those alterations as they felt the building lacked historical significance. This building was not recommended for the Aspen Modern list, which also indicates the lack of importance of the building. Ms. Guthrie noted there is discussion in the HPC minutes of the significance of the building and how it did not meet the criteria for demolition. The staff memo discusses the history of the building; contains photographs and building documents records to support the findings of the HPC. Clauson reiterated changes were allowed to the building. Mayor Ireland asked if there is weight given to historic characters owning or using the building. Ms. Guthrie said that is a designation criteria. Mayor Ireland moved to uphold the HPC's decision on the Benton property; seconded by Councilman Torre. Councilman Frisch said he feels there are other ways to honor Tom Benton than by historic designation. Councilman Frisch noted this building has not made any historic lists and it seems the community has decided the building is not worthy of historic designation. Ms. Guthrie noted staff did the research and created the list for Ordinance #48, Aspen Modern. Bendon said this list was not generated by the HPC and when HPC saw this project for demolition review, the HPC was asked to apply the criteria from the land use code for demolition of a non - historic building in a historic district; HPC found that criteria could not be met and did not approve demolition. Bendon noted this is a procedural question and staff is trying to provide advice on whether HPC had jurisdiction, whether they used their discretion within reason or did they abuse their discretion, did they provide due process. Bendon told Council staff feels those three standards were met not whether the decision was a good one or not. 5 Special Meeting Aspen City Council November 2, 2011 Councilman Johnson said the Aspen Modern program has a way for the community to come together and determine what is appropriate to preserve. Councilman Johnson noted the community has paid tribute to Tom Benton by preserving the Crandall building. It is a struggle to preserve a heavily altered building. Councilman Johnson said he does not feel due process was followed, this property was never designated as an historic structure. Mayor Ireland said the due process issue is whether the applicants received a fair hearing and were allowed to present what they wanted to present. Councilman Skadron said the Benton architecture is rooted in this place and is not imported from somewhere else and imposed on the landscape; this is defined in the geometric shapes that mimic the natural surroundings. Councilman Skadron said he feels this building is important in defining Aspen's character, which relates to community values and to Aspen's past. Councilman Skadron said he will uphold the HPC decision on this property. Councilman Torre said he does not find abuse of discretion or lack of due process and will also uphold HPC's decision. All in favor, motion carried. Bendon reminded Council this is not an appeal but is a call up of HPC's decision and the issues would be jurisdiction, due process, and abuse of discretion. Amy Guthrie, community development department, said there are some actions HPC makes where they are the final authority and staff has to notify Council of a decision so that Council can "call up" that decision. In September, HPC passed a resolution approving the demolition of the Little Annie building. Council was informed and at the next meeting Council voted in favor of calling up this action. Ms. Guthrie said Council's role is to evaluate HPC's decision making and whether they acted with jurisdiction and in due process. Ms. Guthrie said the demolition criteria talks about the structure and whether its demolition would affect the historic district. HPC does not have purview over local businesses. HPC discussed that the building of Little Annie's does not contribute to the historic district, the faux Western facade is not consistent with Aspen's downtown. Staff recommends Council uphold HPC's action. Stan Clauson, representing the applicant, agrees with staff that HPC acted properly. During the discussion at HPC they separated the feeling of the business from the criteria as to whether demolition was appropriate. Mayor Ireland noted the city does not have a code that protects businesses that the community wants; the code protects structures. Councilman Torre said under abuse of discretion, the HPC did not adequately follow the guidelines to approve demolition, the staff memo notes that all of following criteria must be met; the first being the structure does not contribute to the historic district. Councilman Torre said the character in Aspen relies on the variation in the streetscape. Criteria b states the loss of the building would not adversely affect the integrity of the historic district and the loss of the building would adversely affect the integrity of the district. Councilman Torre said he understands that Council cannot preserve uses; however, the variation and uniqueness and the economic success of Aspen does rely on maintaining character on this street. Replacement of this building will adversely affect the downtown. Councilman Torre said in the business Aspen is in, people are attracted to Aspen because of character and charm and this building is part of that character and charm. Councilman Torre said buildings like this strengthen the viability and future of Aspen. 6 Special Meeting Aspen City Council November 2, 2011 Councilman Skadron agreed a competitive advantage strengthens Aspen's viability and this grows out of intimacy in Aspen which is a function of scale and mass which is a function of preservation. Councilman Skadron said this building is part of the historic downtown district and demolishing would alter the character of this block and of the district. Councilman Skadron said there is a stewardship opportunity and the real value of this building is defined by the citizens of Aspen and that is "our place" and signifies Aspen's own special culture. Councilman Skadron agreed with the criteria mentioned by Councilman Torre and he does not find significant evidence that the criteria were met. Councilman Johnson said HPC voted 5 to 1 and took into account the guidelines and the criteria. Councilman Johnson stated he does not feel that because Little Annie's was not listed that HPC exceeded their jurisdiction; however, abuse of discretion and denial of due process did not occur. Councilman Frisch said he is sympathetic to the fact that all new buildings could affect the economic well being of Aspen. Councilman Frisch said visitors want to walk around and see different architecture whether they want to go into businesses or not. Maximizing the build out would result in an Aspen no one wants. Councilman Frisch asked why issues like this, historic preservation and loss of buildings the community wants, keep occurring. Councilman Torre noted the city is not getting a lot of voluntary preservation from Ordinance 48. Councilman Torre said criteria (a) and (b) are in order to protect the character and the viability of what Aspen has been. Councilman Torre said some new modern contemporary buildings do not protect the character of Aspen. Councilman Frisch said the community needs to be more effective in identifying what they are trying to protect and he would like to work on protecting what the character of Aspen is. Mayor Ireland reiterated Council cannot preserve uses. Mayor Ireland said the HPC minutes of September 24, 2011, focus on the Tom Benton building and did not focus on the demolition criteria for the demolition of Little Annie's. Mayor Ireland said without evidence of HPC discussing those criteria, he cannot vote to uphold their decision. Councilman Frisch agreed he did not find that HPC talked about this in the macro level and protecting the historic district and the town as a whole, not just this building. Clauson said the applicants believe the criteria was considered and suggested a full record be transcribed so that Council can review it themselves. Worcester noted one issue before Council is abuse of discretion and one facet of that is that the record is devoid of evidence that the decision appeared arbitrary and capricious. If Council feels they do not have the entire record, they may continue this and have a verbatim to see if HPC fully considered all the criteria. Mayor Ireland agreed the minutes do not indicate that needs of the historic area were discussed. Mayor Ireland moved to continue this to November 28; seconded by Councilman Torre. All in favor, motion carried. Councilman Frisch said brought up a recent executive session to discuss Marks v. Koch, the sunshine law state no action may be taken in executive sessions. Councilman Frisch moved to direct the city attorney to proceed as discussed in executive session in the Marks v Koch appeal; seconded by Mayor Ireland. 7 Special Meeting Aspen City Council November 2, 2011 City Attorney Worcester said no action was taken in the executive session although he did receive direction. Mayor Ireland asked if this would set the precedent every time there is an executive session, Council has to come into public proceeding and make a motion. Worcester said Council would be putting on the record that Council is giving the city attorney direction to proceed. Councilman Frisch said there is a way to inch toward transparency while protecting the ability to discuss private matters with the attorney. Councilman Johnson noted this is a special meeting to discuss one agenda item and this issue was not advertised. Councilman Skadron said a formal action is defined as a motion, resolution or ordinance; none of which happened at that executive session. What ever happened at that executive session was attorney - client privilege. Mayor Ireland moved to table this issue; seconded by Councilman Torre. Councilmembers Torre, Johnson and Mayor Ireland in favor; Councilmembers Frisch and Skadron opposed. Motion carried. Councilman Johnson moved to adjourn at 7:40 PM; seconded by Mayor Ireland. All in favor, motion carried. /✓O Kat • n S. Koch, City Clerk 8