HomeMy WebLinkAboutminutes.council.20111212 Regular Meeting Aspen City Council December 12, 2011
CITIZEN COMMENTS 2
COUNCILMEMBER COMMENTS 2
CONSENT CALENDAR 3
ORDINANCE #38, SERIES OF 2011 — Theatre Aspen SPA Amendment 3
ORDINANCE #37, SERIES OF 2011- Adopting International Fire Code 4
ORDINANCE #34, SERIES OF 2011 — Code Amendment Vacation Rentals 4
RESOLUTION #82, SERIES OF 2011 —Temporary Use Permit Nugget Gallery 6
ORDINANCE #30, SERIES OF 2011— Castle Creek Energy Center 7
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Regular Meeting Aspen City Council December 12, 2011
Mayor Ireland called the meeting to order at 5:10 PM with Councilmembers Skadron, Torre,
Frisch and Johnson present.
CITIZEN COMMENTS
There were no comments.
COUNCILMEMBER COMMENTS
1. Councilman Frisch said the remodeled Merry -go -round restaurant looks great.
2. Councilman Frisch said it is great that Aspen got the bicycle race for a start and a finish
next year. The top of the pass will be the place to be in 2012.
3. Councilman Frisch noted he participated in the Chris Klug "Summit for Life" which was
a wonderful event and raised a lot of money. Councilman Frisch said people from out of town
came to participate in the event.
4. Councilman Frisch noted if anyone has a back country beacon they should make sure and
have it tested.
5. Councilman Skadron noted on December 15 American Airlines starts service into
Aspen.
6. Councilman Johnson pointed out this is the last meeting before the holidays and we all
should put our best foot forward, welcome the guests and have a great holiday.
7. Councilman Torre said it is great to be back in Aspen, as always.
8. Councilman Torre requested an executive session conference with counsel at the end of
the meeting.
9. Mayor Ireland noted he, Councilmembers Skadron and Frisch all participated in the
Summit for Life uphill; Councilman Frisch having the best time of the 3.
10. Mayor Ireland said the Pro Cycling Challenge is coming back to Aspen and he hopes
there will be other races, like the women's race.
11. Mayor Ireland urged everyone to remember those who have less to celebrate and to
remember how sweet it is to live in Aspen. Councilman Torre noted Aspen Hope Center is
available for people who have challenges in life.
12. Councilman Frisch said the Nordic Council's current business is concentrating on things
outside of Aspen, like Ashcroft and Burnt mountain.
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Regular Meeting Aspen City Council December 12, 2011
CONSENT CALENDAR
Councilman Johnson moved to approve the consent calendar; seconded by Councilman Frisch.
The consent calendar is:
Minutes — October 24, 25, November 7, 28, 2011
Resolution #81, 2011 - ACRA Services Agreement
Board Appointments -
Wheeler Opera House Board of Directors Brian O'Neil
Open Space and Trails Board Karen Carner
Historic Preservation Commission Nora Berko; Jay Maytin
Planning and Zoning Commission Stan Gibbs; Cliff Weiss, Jim DeFrancia,
Keith Goode, Jennifer Olson (alternate)
Councilman Torre asked if the funding to ACRA for the Fourth of July is lower because of the
reallocation of the parade to the city's special events department. Randy Ready, assistant city
manager, said the funds have not been lowered because they parade was a small portion of
ACRA's Fourth of July activities. Councilman Torre pointed out Aspen is featured in American
Airline's in -flight magazine.
All in favor, motion carried.
ORDINANCE #38, SERIES OF 2011— Theatre Aspen SPA Amendment
Mayor Ireland moved to read ordinance #38, Series of 2011; seconded by Councilman Torre.
All in favor, motion carried.
ORDINANCE N0. 38
(SERIES OF 2011)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A SPECIALLY
PLANNED AREA (SPA) AMENDMENT, AND AN ESSENTIAL PUBLIC FACILITY
GROWTH MANAGEMENT REVIEW, FOR THEATRE ASPEN TO CONSTRUCT A
PERMANENT LOBBY STRUCTURE AND TO ALLOW THEATRE ASPEN TO MAINTAIN
THEIR TENT FRAME, STAGE, AND SEATING ON -SITE DURING THE WINTER AT RIO
GRANDE PARK, 505 RIO GRANDE PLACE, CITY OF ASPEN, COLORADO, LEGALLY
DESCRIBED AS: LOT 1 OF THE RIO GRANDE SUBDIVISION.
Councilman Skadron asked how this plan aligns with the original approval. Councilman Torre
said he would like to know how the applicant settled on a 1900 square foot permanent structure.
Councilman Torre said he would like neighborhood comments and would like the applicant or
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Regular Meeting Aspen City Council December 12, 2011
staff to solicit those comments for the public hearing. Councilman Johnson agreed he would like
public outreach and would like to know how the temporary use has been going to date.
Councilman Frisch asked if there will be any staff added and will this require employee
mitigation. Councilman Skadron asked if it is Theatre Aspen's goal to have a year round facility.
Paige, Theatre Aspen, answered it is not.
Mayor Ireland moved to adopt Ordinance #38, Series of 2011, on first reading; seconded by
Councilman Johnson. Roll call vote; Frisch, yes; Skadron, yes; Torre, yew; Johnson, yes; Mayor
Ireland, yes. Motion carried.
ORDINANCE #37, SERIES OF 2011 - Adopting International Fire Code
Ed VanWalraven, fire marshal, told Council this fire code is a sister code to the building code,
which was recently amended. The fire code and building code have been adopted in unison over
the past decade.
Councilman Johnson moved to adopt Ordinance #37, Series of 2011, on second reading;
seconded by Councilman Frisch.
Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the
public hearing.
Roll call vote; Johnson, yes; Skadron, yes; Frisch, yes; Torre, yes; Mayor Ireland, yes. Motion
carried.
ORDINANCE #34, SERIES OF 2011— Code Amendment Vacation Rentals
Sara Adams, community development department, reminded Council there were questions at
first reading; staff has providing background on how they have gotten to this point. Staff is
requesting feedback on 3 issues and also requests to continue this to February 13` Ms. Adams
said this issue was raised at the Colorado Association of Ski Towns and the question there was if
there was lost revenue because of these types of rentals. CAST formed a task force and has been
working on this with the emphasis on tax remittance. The city finance department looked into
business licenses for vacation rentals, in 2009 there were 14 business licenses. Finance has
followed up on rentals on line and has asked for business licenses. The current zoning only
allows two rentals /year in districts other than the lodging zone district.
Ms. Adams told Council community development department has received 5 complaints since
2008, which is low. Staff is focused on zoning compliance. Ms. Adams said she has surveyed
other communities that have rental issues and concluded that every community does it
differently. Council has had two work sessions on this topic. Ms. Adams said the first issue is
whether to amend the code or to enforce the code, which allows two rentals /year of less than six
months in all zone districts other than the lodging zone district. If Council thinks the code
should be amended, should these rentals be restricted to specific zone districts and should the
number of rentals per year be limited.
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Regular Meeting Aspen City Council December 12, 2011
Councilman Skadron asked if there is information from this research on the changing
marketplace and the way people looking for vacation rentals are shopping. Ms. Adams said the
popularity of online sites is becoming more popular.
Mayor Ireland opened the public hearing.
Tricia McIntyre, Aspen Luxury Rentals, told Council this is a high end private home rental
company. Ms. McIntyre said many of their rentals are not zoned for short term rentals and could
only be rented twice a year. If the city were to enforce the code, it would wipe out this rental
market and take away the inventory. Ms. McIntyre said they have been paying sales taxes and
there are many people renting online that are not paying sales taxes, which is an economic
advantage to them. Ms. McIntyre said her company oversees rentals and makes sure the renters
are compliant with the city rules. Ms. McIntyre said the best solution is unlimited vacation
rentals and the sales tax should be collected. Ms. McIntyre said 5 complaints over 5 years is not
very many.
Councilman Johnson asked the rental frequencies of these properties. Ms. McIntyre said her
properties rental around 4 times /year, some not as many and some properties only rent during
Christmas. Councilman Johnson said one concern is if there were unlimited rentals, there would
be a larger volume of rentals. These rentals generate business for local companies, like maids
and chefs. Councilman Torre stated his priority is the integrity of the residential zones.
Councilman Torre agreed the code should be amended and there is a middle ground that can be
struck.
Tracy Sutton, Aspen Signature Properties, said she also has a high end rental company. Ms.
Sutton pointed out there are not a lot of 5 and 6 bedroom homes in the core area that are rental
properties and expanding the rental areas is important. Ms. Sutton noted some property owners
rent their houses to help pay for them and eliminating rentals could affect the real estate
community. Councilman Johnson asked what a reasonable number of rentals /year would be.
Ms. Sutton said 8 rentals would cover how most properties work.
Councilman Torre said allowing rentals in residential zones may help them from becoming dark.
Councilman Torre said rather than a number of rentals /year he would favor cumulative
time /year. Councilman Torre said he does not want to take away the ability of people to be able
to rent their homes but would also like residents to be able to keep their neighborhood a
neighborhood. Councilman Skadron said from the nature of the complaints, it does not seem
people are concerned about the rentals but how people are conducting themselves when renting.
Steve Fallender said going from two rentals allowed to unlimited is a huge jump. Fallender said
he was aware of the code not allowing short term rentals when he was buying his first property.
Fallender said the Board of Realtors can remind buyers about rental restrictions regardless of
what the city decides. Fallender said he is not opposed to rentals but he is opposed to unlimited
rentals. Fallender said the west end should be respected as a place people live. Fallender said
changing the code will not make enforcement easier and unlimited rentals will not change renters
who do not pay attention to the city's regulations.
Mayor Ireland closed the public hearing.
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Regular Meeting Aspen City Council December 12, 2011
Councilman Johnson said the code should be changed and rentals should be allowed in all zone
districts and he likes either limiting the rentals or setting a maximum number of days.
Councilman Johnson said he would like to know what the market is like now. Councilman
Johnson suggested researching the rentals laws in Maui. Councilman Johnson agreed these
rentals are supplying jobs to locals as part of the resort community.
Councilman Frisch noted this is a growing sector of rentals in the community. Councilman
Frisch agreed 5 complaints in 5 years is not a problem; however, this could be a problem if
unlimited. Councilman Frisch said the city is committed to doing a lodging study and changes to
the land use code, both of these will be affected by these proposed code changes. Councilman
Frisch said he would like to address the entire picture rather than passing small code changes and
would like the lodging study done as soon as possible.
Councilman Skadron asked if this code amendment is related to the larger lodging issues.
Bendon said it is in what is offered in terms of tourists stays, which should be looked at across
the board. Bendon said this piece is not critical and this can be fixed before the lodging study is
done. Councilman Skadron concurred the code should be changed and rentals should be allowed
in more zone districts than just lodging district. Councilman Skadron said number of days rather
than number of stays is worth consideration. Mayor Ireland agreed a regulatory scheme for
doing this is needed; small businesses should be paying taxes and everyone should be
contributing to the community. Mayor Ireland noted there more vacant properties in the
community; this may allow properties to be occupied parts of the year without pricing residents
out of owning a house in Aspen. Mayor Ireland said people should lose their license if they do
not control their properties from a nuisance standpoint. Mayor Ireland said there are at least 3
votes to amend the code with limits on how often or how many days these rentals can occur.
Councilman Johnson moved to continue Ordinance #34, Series of 2011, to February 13, 2012;
seconded by Councilman Torre. All in favor, motion carried.
RESOLUTION #82, SERIES OF 2011— Temporary Use Permit Nugget Gallery
Chris Bendon, community development department, reminded Council there was a temporary
use approved for this space on the Hyman mall last year and this is a request to continue
operating in that space. The space is a lobby and hallway in a commercial building which the
applicant turned into a gallery. Bendon said in the original approval, Council thought this was a
way to look at spaces like this and see if the code should be amended. Bendon told Council the
applicant has done a good job operating the space and staff recommends in favor. Bendon
pointed out the outstanding issue is the use of signs boards; staff provided three options, no
sandwich board, sandwich board all the time, sandwich board for 8 one week periods. Bendon
said sandwich boards are allowed for business that are not right on the street level and this
business qualifies for that.
Ross Kribbs, applicant, said his concept works for this space and the majority of the art has been
local and he would like to see a code change to allow this type of use permanently. Kribbs said
this space is common area and there are security issues. Kribbs said the tenants in the building
have enjoyed the changing art displays. The social events have been held at night.
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Regular Meeting Aspen City Council December 12, 2011
Councilman Skadron said he supports this application, it creates something from nothing.
Bendon reiterated there is a provision in the sign code that allows sandwich boards for spaces
that have barrier to retail and this business complies with business through a common entryway
not exclusive to that business and that has a store front that is obscured by another building.
Councilman Frisch stated he supports the sandwich board all the time. Councilman Frisch asked
if this decision would be contrary to the work session about sign codes in January. Bendon said
this section will override any changes Council might make. Councilman Skadron said he
supports the sign option that best serves the application. Kribbs said the best option is the one
that allows the most exposure.
Councilman Torre recused himself as he lives within 300 feet of the application.
Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the
public hearing.
Councilman Johnson moved to approve Resolution #82, Series of 2011, allowing the sign board
option that allows the most exposure; seconded by Councilman Skadron. All in favor, motion
carried.
ORDINANCE #30, SERIES OF 2011— Castle Creek Energy Center
Sara Adams, community development department, said this ordinance approves 5 different
reviews including subdivision, rezoning to Public, consolidated PUD review to determine
dimensional requirements for the site, growth management review for an essential public facility
and 5 year vesting. Ms. Adams said this project is for a 1761 square foot building. The original
application contained a visitor's center, which has been eliminated and which reduces the size of
the building. Solar panels have been eliminated. An existing storage shed is included in the site
plan; covered parking has been removed and parking spaces on site remain located on CDOT
right -of -way; there will be a lease with CDOT.
Ms. Adams reminded Council there was a question at first reading about exemption from stream
margin review. The code recognizes that essential public facilities and some other types of
development do not need to go through stream margin review and are required to meet the
standards to the best extent practicable. The stream margin review criteria was presented to P &Z
during a meeting in order to address those criteria and to take public comment. Ms. Adams
stated staff finds the criteria met to the best extent possible; however, the project does not meet
all the criteria but meets them to the best extent possible. There are 11 criteria and 3 are met to
the best extent possible. One criterion is that no soil disturbance or grade changes will occur.
Installing the tail race will disturb some vegetation. There is a proposal to revegetate the area.
Ms Adams noted all criteria for the other reviews have been included in Council's memorandum.
Ms. Adams said the project meets the goals of the AACP in the parks and open space section,
economic sustainability and design quality. Ms. Adams said staff feels this project meets the
criteria for PUD and subdivision. The dimensional requirements are appropriate for this location
and for this type of facility. Rezoning from R -30 residential to Public/PUD is compatible with
the area. This parcel is adjacent to the city shop, which is zoned public. P &Z found there will
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Regular Meeting Aspen City Council December 12, 2011
be no employees generated by this development based on the description of how the plant will
operate. The ordinance states that an audit will be conducted by APCHA two years after the
plant has been operational to confirm no employees have been added. If employees have been
added, the applicants must come before Council to figure out mitigation. Staff is recommending
approval with conditions as outlined in the ordinance.
Randy Ready, assistant city manager, told Council this ordinance is not about FERC permitting,
the economics, the stream flow monitoring. Council is the owner of this project and is the land
use reviewer. Ready said as land use reviewer, Council is making this decision based on the
criteria in the land use code. This land use decision does not bind Council in other future
decisions. Ready noted this building is less than 2,000 square feet and less than 20' in height.
The building is designed to house equipment necessary to generate electricity. This is located on
Power Plant road adjacent to the city shop that was a hyrdoelectric plant until 1958. This site is
used for storage and parking of streets equipment. This ordinance will allow the project to be
built when the FERC license in granted and when Council gives the okay to proceed.
Ready told Council there are four rooms in the buildings, a turbine room, a shop and staging
room and a small control room. There is no parking required and none is being proposed. The
applicant is seeking to lease some space from CDOT to organize the parking and storage. Ready
said staff has listened to neighbors and to Council to try and make the building fit into the site, to
discuss noise and vibration and the creation of energy. Ready pointed out the list of staff on the
project team to review and to value engineer the project.
Dave Hornbacher, utilities department, told Council this project has evolved through community
input, project team input and value engineering. The visitors' room and the bathroom have been
removed. The changes were made with the goal of simplifying the project. Hornbacher showed
a rendering of the building noting that it complements the city shop. The HPC wanted the
building to be distinct and contemporary. The building will shield the city shop and will have a
landscaping plan. Hornbacher said a staff person will visit the plant once a day to make sure it is
operating smoothly; other than that it is an unmanned facility. Hornbacher told Council the size
and location of the road will be the same; the pitch of the road is changing to move the drainage
from the roadway away from the stream and into a storm water retention and treatment on site.
Hornbacher pointed out the property to the north is zoned Public and is the former hydroelectric
plant, the Marolt open space is to the south, there is residential to the west and to the east.
Hornbacher told Council in 2007 the voters approved an open space exchange and the proposal
is a 3 to 1 exchange in overall land, and additional trail access around the water plant property
will be deeded. Hornbacher showed the land that will be part of this exchange. Hornbacher said
one of the complaints had to do with noise. Staff hired a sound engineer who did studies of
similar types of hydroelectric facilities in Colorado; these studies were used in engineering the
design of the building. Hornbacher pointed out the ordinance requires at the property line no
greater than 55 dbls in the day and 50 dbls at night. Hornbacher said this is about the level of
normal conversation. Hornbacher said there will be thicker walls, dampening panels, and the
duct work will be lined. The commitment to sound abatement has added some cost to the
construction but it is a good investment.
Councilman Johnson asked if this will be a similar design to the Maroon Creek hydro project.
Hornbacher said it is similar in that the exterior of the building contains the sound. This facility
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Regular Meeting Aspen City Council December 12, 2011
will have double doors and entering one will go in a small door into the storage room before
going into the equipment room. Hornbacher said the outside lighting fixtures are down lights;
there is no parking lot lighting. Hornbacher pointed out this facility is separated from the stream
by Power Plant road. Hornbacher told Council staff studied the storm water and there will be
storm water improvements on site as part of a storm water mitigation plan.
Hornbacher said this is an essential public facility and no additional employees are required.
Hornbacher reminded Council the city has experience with two other hydrofaciltiies and the
manpower required to manage the operations. Hornbacher stated he is confident this does not
require additional employees. Hornbacher said this ordinance has conditions of approval and
one of the items from the community mediation was to include these conditions in the ordinance.
The ordinance contains guiding principles, the details will be documented in an IGA with the
county.
Hornbacher noted there is a memorandum of understanding with the Colorado Division of
Wildlife; the ordinance contains the slow start suggested by the citizen group. The commitment
is to maintain and protect the environment, providing clean renewable energy to help prevent
climate change, and by protecting the streams. Ready requested Council adopt the ordinance
approving the land use so that the project can move forward and proceed with a FERC review in
2012 and 2013, construction in 2013 and energy production in 2014. Ready noted because of the
uncertainly with FERC process, staff is requesting approval of 5 year vested rights.
Ready said there has been a lot of discussion of the costs of this project and making decision on
this building could stop that moving piece. Ready noted a Council priority is to pursue
actionable environmental goals, things that can be implemented at the local level. Ready said
staff listened to a lot of public input from the neighbors, ways to make the building more
acceptable and ways to mitigate the impacts. This approval would lock in the commitments
made by the city. Ready reminded Council commitments to the environment were made as part
of the community mediation and the ordinance keeps those commitments and sets environmental
policy, lets Council set the slow start protocol and operation measures for the project. Ready
said approval of this ordinance will let the city and the community focus on the FERC approval
process. Ready said by approving this ordinance, Council does not cede any of its power as
owners to stop or to revise the project. The project can proceed only with FERC approval.
Carl Krumley told Council he filed a notice of intent to file a license application of FERC and
this notice indicates Castle Creek Energy Center will be the location of a hydro facility. The
environmental analysis, financial modeling, hydrology are based on that location. Krumley
noted it is not absolutely required to have the land use approval but it is an important indication
of support of the project. Krumley said if Council does not approve the land use, it could be
argued that the city does not have its own approval.
Councilman Torre asked if design budget and will any work be triggered by approving this
ordinance. Ready stated the design is mostly complete; there is no further architecture that has to
be done. Ms. Adams suggested Council change the date for recordation of the plat and
subdivision rather than 180 days from approval of the ordinance to 180 days from receiving a
FERC license. Councilman Torre said he is concerned about triggering more expenditures.
Ready said final construction documents will be required at some point, at Council's discretion.
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Regular Meeting Aspen City Council December 12, 2011
Mayor Ireland noted the suggestion is to wait to finalize this to 180 days of FERC approval so if
there is not FERC approval, no money is spent on construction drawings.
Councilman Frisch asked if the zoning is changed and the hydroplant does not go through, what
happens to the zoning. Ms. Adams pointed out the change in zoning is contingent upon the
recordation of the plat, if the ordinance is amended for the date the agreement and plat are
recorded. Councilman Frisch asked if a FERC license has a statute of limitations. Krumley said
typically the license gives two years to start construction and five years for completion of the
project. Councilman Frisch asked about the requirement for five parking spaces and are they for
the hydroplant. Ready said the 5 parking spaces will help the street department organize their
remaining parking. Councilman Frisch asked about the 120 days and the requirement to have an
IGA with Pitkin County and where did this condition come from. Hornbacher said the IGA
came from the community mediation discussions and the IGA was a method to memorialize the
conditions from that meeting. Councilman Frisch asked if staff is comfortable that 120 days is
enough time to come to agreement on an IGA. Hornbacher said the city and county have been
working on the IGA.
Councilman Johnson asked about plans if the noise levels are higher than allowed. Hornbacher
said the 50 and 55 dbls are not negotiable and when the energy center is operational and those
dbls are not met, there will be additional work to make sure there is compliance, like additional
insulation, or covering the generator. Councilman Johnson asked about the vibration issue.
Hornbacher said the design of the structure has addressed vibration; there is excavation to
provide stabilization. There were vibration studies on this project and the findings were
incorporated into the design. Councilman Johnson said if the building is not built, how is the
emergency drain line connected. Hornbacher said an energy dissipating structure would be built
where the water comes down the hillside and the concrete box will dissipate the energy and
move it out through the tail race into the stream.
Mayor Ireland opened the public hearing.
Connie Harvey said her concern is she does not know whether the entire project will make sense
and that won't be answered without more detail. Ms. Harvey suggested this decision be deferred
until the community hears from all the experts. This will be important if there is to be
community agreement on the project; it should not be rushed. Ms. Harvey said the community
meetings and input are not the end of the story. Ms. Harvey said she would like to see this
project done right and the city should not get locked in without being able to change parts of the
project. Ms. Harvey said things like the climate issue have been left out; there is more work to
do and it will not hurt to postpone this decision. Ms. Harvey said there is much more that needs
to be investigated.
Kirk Gregory asked if the permit does not go through would this land would not be designated
public. Councilman Frisch said it would stay zoned as what it is currently zoned. Ms. Adams
noted it is a site specific approval. Gregory asked why the turbine was purchased before the
FERC permit but the building is not going to get built until the FERC permit is approved.
Gregory said the drawing should include any heavy equipment that may be parked on site, which
will change the way the property looks, and the heavy equipment is a new element to this
proposal. Gregory suggested narrowing the road in front of the city shop, which was widened
the last time it was paved which narrowed the riparian area. Gregory said this should be as
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Regular Meeting Aspen City Council December 12, 2011
environmentally positive as possible. Councilman Skadron agreed the goal should be to
minimize the impervious surface.
Maureen Hirsch said she feels this is the cart before the horse and the city is far away from its
process happening. The city is converting open space and rezoning and establishing a use that is
not compatible with the neighborhood and will have a significant impact on this area. The most
significant impact will be the noise from the turbines and the dewatering of the creeks. Ms.
Hirsch said just focusing on a decibel level is not enough information; the noise impacts could be
significant. There are different types of noises, high pitch noises have their own characteristics.
Ms. Hirsch noted this is located at the bottom of a narrow ravine which will create an
amphitheatre effect. Ms. Hirsch said this plant should be designed for 50 to 55 decibels at the
building not at the property line, which may help mitigate the noise issue. Ms. Hirsch said a
hydroplant does not belong in a residential neighborhood. The noise from the tail race has been
underestimated; the noise from the turbine will be 24/7 and the quality of life for the
neighborhood will be impacted. Ms. Hirsch said this is not an essential public facility for the
well -being of the community; because it was deemed essential, it was exempt from a stream
margin review. Ms. Hirsch asked if the issue over the property line has been resolved. Ms.
Hirsch said the drawings do not show where the tail race comes out.
Betsy Starodoj, Sneaky Lane, stated she has been following this project since 2007. Ms.
Starodoj stated she shares the worldwide responsibility for reducing carbon footprint and
respects the canary initiative. Ms. Starodoj said there are unresolved aspects of this project and it
seems inappropriate to be rezoning the property. Ms. Starodoj pointed when the hydropower
plant was built in this location in 1892, this was not a residential neighborhood. After the plant
was dismantled in 1958, this area became a residential neighborhood. Ms. Starodoj noted at a
neighborhood meeting in 2009, then project director John Hines commented that the city as the
developer did not need to provide on -site housing as the plant would run on its own and that it is
not desirable to live near a turbine. Ms. Starodoj asked where else there is a hydropower plant in
a neighborhood setting and how is it working out. Ms. Starodoj said she has been told that city
staff is still working on this answer. The city shop is a different operation and has fewer impacts
than the proposed Castle Creek Energy Center. Ms. Starodoj stated she is opposed to the
rezoning of this property from residential to a zone with industrial development possibilities.
Ms. Starodoj said she likes the city's rigorous development review process and wants the same
process applied to this development.
Yasmine dePagter pointed out the area is currently not being well -taken care of consisting of
trucks and tires, debris running off into the creek which adds to concerns about a future project
on this spot. Ms. dePagter said there are too many questions to approve the rezoning. Ms.
dePagter said the city should go through a full stream margin review like other applicants. Ms.
dePagter said the current city shop has been historically designated and will be impacted by this
development. Ms. dePagter said this project has not had HPC review.
Tom Hirsch said this is a complex subject, it should be a continual learning process. Hirsch said
in the demonstration it was stated it is not about cfs but about the relationships between the
riparian areas, the wetlands, the stream, life within the stream, life around the stream. Hirsch
said Council was presented with an emergency drain line, which was not an emergency and
which jump started this project. Hirsch said it seems due diligence is done after the money is
spent on this project. Hirsch said this industrial use in a residential zone will cause unknown
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Regular Meeting Aspen City Council December 12, 2011
impacts. Hirsch said this should be rezoned when enough about the project is known to make it
industrial, and he has heard no reasons to do the rezoning now. Councilman Skadron asked at
what point will this project "be there ", when does perfect become the enemy of good. Hirsch
said this is sited where a hydropower project was previously without looking at alternatives, or
alternatives for in stream hydro that would not dewater, or other modalities to create agreements
for sustainable and renewable like local solar and local wind power. This hydropower project
should not trade off other values; people agree with the goals but not do agree there is only one
way to achieve them. Hirsch said there are ways of doing hydropower that do not dewater the
streams. Hirsch said the neighbors agree with the goal but there should be more due diligence
before committing funds.
Tim McFlynn thanked the city for moving from a conduit exemption process to a FERC license
process and for scheduling most of today as meetings on the hydropower project and for
participating in the mediation. McFlynn acknowledged that the city is developing the best
stream margin protection protocol there is. McFlynn said this ordinance states if there is no IGA
within 120 days, the city no longer needs to commit to that. McFlynn said there will be no
commitment with the county in 120 days and there will be no enforceable protocol. McFlynn
requested Council delete that section of the ordinance. McFlynn stated the city does not need
this rezoning in order to process the FERC application; it will be needed to accept the license.
McFlynn noted there is a water rights litigation pending, and the city filed an application with
FERC based on water rights under this litigation. McFlynn urged Council to retain an agreement
with Pitkin County or a provision in water court; a condition of the FERC license; and a
provision in this ordinance. McFlynn said this ordinance does not track the mediation report and
he would like to stick to the agreements made by 22 people last March. McFlynn said the
adoption of the ordinance should be deferred until the IGA is completed.
McFlynn asked if this ordinance is not adopted at this meeting, what can the city not do
tomorrow. The FERC application will take years. McFlynn stated this community wants to
know that this project will be based on healthy, functioning stream eco- systems as understood
today and in the future. McFlynn said climate change is a factor in the amount of snow and
snow melt in the rivers. McFlynn requested Council to delete the 120 days self - destruct
mechanism. John Worcester pointed out the ordinance addresses what happens if the city and
county cannot enter into an IGA and the commitment to continuing a slow start process.
Worcester said without this clause, the city is giving the county the right to hold this ordinance
hostage until the IGA is agreed to under their terms. Worcester noted staff has been working
with the county on this IGA for several months and 120 days is sufficient time for the city and
county to agree on terms. McFlynn said without that clause the city will be lacking what they
agreed to last spring, a board of experts including a DOW member, which will dictate the
monitoring program, the slow start and when to increase or decrease based on science. McFlynn
said if this clause is eliminated, the city is stating they will police this themselves. This was a
unanimous recommendation from the meetings last spring. McFlynn said the city is in litigation
on water rights so why process this ordinance.
Jim Markalunas reminded Council in the 60's there was giardia in the city's water system. The
city hired a water engineer to investigate renovation of the hydro electric power house and water
works and to construct a water filtration plant to filter out the giardia. Markalunas said it was
short sighted to shut the hydropower plant down. Markalunas pointed out the electricity is
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Regular Meeting Aspen City Council December 12, 2011
connected by the grid and these could be disrupted or shut down and related a Labor Day storm
that cut off the electricity to the city for days. Markalunas said Council should think about what
might happen in terms of reliability of the existing electric system and if the power lines feeding
into Aspen were out of service. Markalunas noted that besides being renewable, hydroelectric
can provide the city with an alternate source of power. Markalunas read from a memorandum of
his dated July 1990 when he was director of the water department and the potential of
hydroelectric power. Markalunas pointed out Aspen was energy independent and had an
abundant water supply. Markalunas said in the 50' and 60's the hydroelectric facilities were
neglected and then scrapped. Markalunas noted efforts by the city to install wells failed to
achieve a reliable and safe water supply and energy independence was lost when the turbines and
generators were scrapped. Markalunas told Council he attached recommendations to that 1990
memorandum including work to maintain and improve the water and power supply.
Michael Lipkin said he appreciates the more thorough FERC review process. Lipkin questioned
moving forward with this ordinance at this time, there does not seem to be any urgencies.
Nathan Ratledge, CORE, said there is an innovative approach to the slow start environmental
monitoring for this project, which was supported by the Department of Wildlife and the National
Hydropower Association. Ratledge noted there is opposition to this project, which created the
community mediation process. Ratledge said at CORE they work with thousands of people to
make their houses more energy efficient and how to install renewable energies. Ratledge said
this project illustrates environmental leadership, local investment and control of Aspen's energy
future, for which there is support in the community.
Mayor Ireland closed the public hearing.
Councilman Torre noted there is a city streets department shop located adjacent to this proposed
project. The amount of time from the closure of the hydro facilities has allowed the area to
become residential. Councilman Torre said he could not locate the findings of the noise studies
to look at the methodology and he would like those studies. Councilman Torre noted it was
stated that the tail race will be underground next to some gas pumps and would like to know
more about that. Councilman Torre asked about the assertion that the FERC process would be
looking only at property ownership. Councilman Torre asked if the land use issues are part of
the FERC review; does FERC look at the placement of a building. Krumley answered that
FERC looks at a wide variety of environmental considerations including noise, visual aspects,
finish of the building, surrounding landscape. Krumley noted the city filed a notice of intention
to develop and file a license application with FERC. If one were to become a licensee, they
could even condemn the property that is needed. FERC will take into account what has to be
done to get to a licensed project. At the time of filing a license, one does not have to have
zoning approval or real estate ownership; these are part of a demonstration to FERC that one is
considering all aspects of the development of the property.
Councilman Johnson asked about the HPC reviewing this project. Ms. Adams said this property
is adjacent to a landmark property and the code does not require HPC review. Councilman
Frisch asked why an IGA is needed to form a board of experts, can the city just commit to that.
Worcester said Council can do that; the County wants an IGA in order not to oppose the project.
Steve Barwick said there are some interests in common with the county; the IGA would be a
model for the county to use for other water projects and is worthwhile in protecting the stream
resources in all of Colorado.
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Regular Meeting Aspen City Council December 12, 2011
Councilman Frisch said there have been suggestions that some of this infrastructure went in
under the guise of the water plant and will FERC weigh in on that issue. Krumley told Council
FERC addressed that issue in a letter order saying the city had jurisdiction as a water provider to
construct the drain line in order to effect the safe evacuation of Thomas reservoir. Councilman
Frisch said the city holds the community to high standards and he would like to make sure the
city is also held to those standards. The stream margin review has 11 criteria; this project has
met 8 of those and what is the cost or timing of meeting the other 3 criteria. Ms. Adams said it is
not possible to meet the other 3 because of the requirements for a hydropower facility, the pipes,
the need to go through the ground. Exemptions are written into the code for situations like this.
Councilman Frisch asked if the lot line issue has been cleared up. Ms. Adams said there was an
area in question; there is confirmation from CDOT that that is in the city's ownership.
Councilman Frisch asked about FERC's ability to change the final design. Krumley said this is
usually on the applicant's initiative but there are instances when the project is changed to adapt
to the environment, more cooperatively between the license applicant and FERC. Councilman
Frisch noted a frustration in the development review from the applicants is what exactly is
Council looking for in the project. Councilman Frisch said if opponents do not want this to be
built at all, they should say that. If there are hurdles to the approval process, let the Council
know so they can work on those rather than moving the hurdle every time this subject is brought
up. Hornbacher said the tail race location moves from the center outwardly; it does not go
underneath the gas pumps; it goes out to the roadway and extends to where it will empty into the
creek.
Councilman Skadron noted it was visionary work by the city and county that secured Cozy Point
and the Droste property and should secure the hydroplant. Councilman Skadron noted the water
at this location belongs to everybody in the community. Councilman Skadron said he feels that
if every suggestion were followed, this project would be in the same place. Councilman Skadron
said he would like to take action on the ordinance and to have an impact on the future and not
just a dream that goes by.
Councilman Johnson said the opponents have described this having the best stream protection
plan ever. Councilman Johnson said a benefit of approving this ordinance will be to further
refine the costs; approving the ordinance locks in the commitments; allows staff to focus on the
FERC process. Councilman Johnson noted the city's FERC attorney recommends proceeding
with this ordinance. The rezoning does not go into effect until after the FERC approval.
Councilman Johnson said the spirit of the IGA is that the city is committed to following through
and to assuring the best stream protection plan. Councilman Johnson said this ordinance
approves a land use application and preserves the off ramps needed, if it is not financially
feasible or if FERC says no.
Mayor Ireland said there is litigation associated with this project and the litigation is to strip
away some city water rights. Mayor Ireland noted it makes collaboration difficult in a situation
with litigation and delaying this is a veto by litigation. Mayor Ireland said this ordinance does
not take effect until a FERC license is granted. Mayor Ireland stated he supported this issue
when it was on the ballot in 2007. Mayor Ireland pointed out in 1995, the community had
federal money to build light rail into Aspen and the opposition said they would come back with a
better plan and the project was not done and light rail died. Mayor Ireland said in 2000 the
Burlingame housing project was on the ballot. At that time the cost was $175 /square foot. The
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Regular Meeting Aspen City Council December 12, 2011
project was delayed and it was voted on again and the cost had gone up and opponents said it
was too expensive. Mayor Ireland stated he does not support the inclusion of this not going
forward without an IGA. Mayor Ireland said he will work with the county on these
commitments. Council is elected to take responsibility for land use decisions, not to delegate
them to someone else. Mayor Ireland said people living along the streams have impact on the
areas. The city has to balance the needs of the community for some development and energy use
against the value of the environment.
Mayor Ireland moved to adopt Ordinance #30, Series of 2011, amending it that the deadline for
filing the plats is 180 days after granting of FERC license; seconded by Councilman Skadron.
Ms. Adams noted two errors to be corrected, the newly created lots size is 27,005 square feet and
Section 6, last sentence referring to control over the ordinance should state "over Section 6 of the
ordinance" to eliminate confusion. Mayor Ireland accepted the amendment; Councilman
Skadron accepted the amendment.
Krumley noted there is a time frame set out for licensing which is included in the document filed
earlier today. Krumley said in the request for FERC licensing, there is a 30 day comment period
beginning now; FERC will determine whether to allow the city to use the traditional licensing
process within 60 days. Krumley said Council strengthens its case and shows greater
commitment to the project if they adopt Ordinance #30.
Roll call vote; Councilmembers Johnston, yes; Torre, yes; Skadron, yes; Frisch, yes; Mayor
Ireland, yes. Motion carried.
Mayor Ireland moved to go into executive session at 10:30 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 on the MDI litigation and (e) Determining positions
relative to matters that may be subject to negotiations; developing strategy for negotiations; and
instructing negotiators on negotiating with ESPN over the X- games; seconded by Councilman
Johnson. All in favor, motion carried.
Councilman Johnson moved to come out of executive session at 11:14 PM; seconded by
Councilman Torre. All in favor, motion carried.
Councilman Torre moved to adjourn at 11:15 PM; seconded by Councilman Johnson. All in
favor, motion carried.
1011 is/
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Kathryn S. Koch, City Clerk
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