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HomeMy WebLinkAboutminutes.council.20120312 Regular Meeting Aspen City Council March 12, 2012 Contents PROCLAMATION—Ramona Markalunas 2 CITIZEN COMMENTS 2 COUNCILMEMBER COMMENTS 2 CONSENT CALENDAR 3 • Resolution#18, 2012—Contract—Infrastructure Burlingame Phase II 4 • Resolution#19, 2012—Contract—Colorado Water Conservation District 4 • Resolution #21, 2012—IGA Adopting State Highway 82 Access Control 4 • Minutes—February 27, 28, 2012 4 Resolution#16, 2012—Contract- Purchase Cardio Equipment—ARC 4 Resolution#17, 2012—Contract— Mowing Equipment Purchase 4 Resolution #20, 2012—Contract—Golf Cart Fleet Purchase 4 Resolution #12, 2012 - Fluoride 5 ORDINANCE#6, SERIES OF 2012—Aspen Modern Designation 514 E. Hyman 5 RESOLUTION #22, SERIES OF 2012—Appeal of Slope Determination 219 S. Third 8 ORDINANCE#7, SERIES OF 2012—217/219 S.Third Street PUD 9 RESOLUTION #13, SERIES OF 2012—Action on Referendum Petition 14 1 Regular Meeting Aspen City Council March 12, 2012 Mayor Ireland called the meeting to order at 5:00 PM with Councilmembers Torre, Frisch, Johnson and Skadron present. PROCLAMATION —Ramona Markalunas Mayor Ireland and Council proclaimed March 12th as Ramona Markalunas Day in her memory and for all the things she did for this community. Council presented the plaque to the Markalunas family. CITIZEN COMMENTS 1. Elizabeth Milias brought up Section 2.02.110 of the Municipal Code under rules of ethical conduct, quasi-judicial proceedings. This section requires officials to remain impartial and to hear evidence presented at hearings and to avoid communications or taking a stance on matters. Ms. Milias said some officials seem to violate that law when they made statements in the paper about the referendum petition issue. Ms. Milias said the community expects more from their elected officials. Councilman Tone stated he had not pre-judged the matter. Mayor Ireland pointed out a referendum question to be posed to the voter is not a quasi-judicial issue; it is not an ordinance. Council was within its rights to express an opinion. 2. Jon Busch agreed he, too, is getting tired of the fluoridation issue and is not asking Council to take the issue off the consent calendar. Busch said there are some issues with the report. 3. Emzy Veazy suggested Council televise all Board and Commission meetings. Veazy said the city should be giving restaurants a grade so the public knows how safe each restaurant is. COUNCILMEMBER COMMENTS 1. Councilman Tone said Ramona Markalunas had a great influence on his becoming involved in local politics. Councilman Tone said Jim Markalunas also served on Council and Lisa Markalunas consistently reminded the community of what Aspen should be about. Councilman Torre noted Ramona was the first women to serve on City Council and encouraged women to get involved; volunteer for boards and commissions. 2. Councilman Torre noted it is fashion week in Aspen and extended kudos to the organizers, Lisa Johnson and Oliver Sharp. This event has grown from grassroots in Aspen. 3. Councilman Torre announced the high school girls tennis team is off to a 3 and 0 start. 4. Councilman Torre said the bag ban is coming and from now until it takes effect, one can get free bags. 5. Councilman Frisch extended his sympathies to the Markalunas family. 2 Regular Meeting Aspen City Council March 12, 2012 6. Councilman Frisch congratulated Aspen locals for winning the Power of Four race and thanked Katie Frisch for feeding a large contingent of competitors. 8. Mayor Ireland congratulated Adam Frisch for finishing the Power of Four in 7 hours. 9. Councilman Johnson, too, expressed his condolences to the Markalunas family. 10. Councilman Johnson said the boys' basketball team had a great season. 11. Councilman Johnson noted spring break is almost upon Aspen and asked that everyone put their best foot forward and provide the best customer service for which Aspen is known. 12. Councilman Johnson introduced Jamison Fuentes who is part of the middle school mentor program. Jamison has chosen Councilman Johnson as his mentor and will be shadowing him and learning about both local government and business. 13. Councilman Skadron thanked the Aspen Skiing Company for running the Bell Mountain chair. Councilman Skadron said on a sunny day in March, riding the Bell Mountain reminds one of old Aspen. 14. Mayor Ireland wished Lisa Johnson good luck with Aspen Fashion Week. 15. Mayor Ireland noted the proceeds from paper bags at local markets do not go into Wheeler funds or housing funds but will be used for educating people or for reducing the price of non-reusable bags. 16. Mayor Ireland congratulated Dr. Borchers for participating in the Power of Four race. 17. Mayor Ireland noted that C.J. Oliver, environmental health director, is qualified and a gifted person and the other competitors for the job would have been fine department heads. 18. Chris Bendon, community development department, requested that Resolution #22. Slope determination appeal, be heard before the public hearing of Ordinance #7. 19. Councilman Frisch thanked the Housing Frontiers group for putting together the great guide for affordable housing, which is available at the Aspen Pitkin County housing office. 20. Mayor Ireland reminded everyone the application for food tax rebate, which is $50 to each full year residents, is available in the finance department and is due by April 17`h. CONSENT CALENDAR Councilman Tone requested Resolution #12, 2012, Fluoride be removed. Councilman Frisch requested Resolutions #17 and#20, 2012, contracts for golf equipment, be removed. Resolution #16, 2012, Cardio Equipment at the ARC was removed. Mayor Ireland moved to approve the consent calendar as amended; seconded by Councilman Torre. The consent calendar is: 3 Regular Meeting Aspen City Council March 12,2012 • Resolution #18, 2012—Contract—Infrastructure Burlingame Phase II • Resolution#19, 2012—Contract—Colorado Water Conservation District • Resolution#21, 2012— IGA Adopting State Highway 82 Access Control • Minutes— February 27, 28, 2012 All in favor.motion carried. Resolution #16, 2012—Contract - Purchase Cardio Equipment—ARC Councilman Johnson noted this contract is for $60,000 and the city committed $60,000 last year. This equipment seems to have a short life span. Tim Anderson, recreation department, agreed the equipment breaks down a lot; it gets a lot of usage. The goal is to keep the equipment fresh and in good working order to meet the customer's expectations. Anderson said the cardio equipment is integral to keeping up the revenues and attendance at the ARC. Councilman Skadron asked if this purchase correlates with long term plans for expansion. Anderson said these are two separate issues; this purchase is to keep patrons happy and to upgrade the equipment. Resolution#17, 2012—Contract—Mowing Equipment Purchase Resolution #20, 2012—Contract—Golf Cart Fleet Purchase Councilman Frisch said his concern is with the funding of these purchases by a loan from the Wheeler Fund and this may not be what the voters wanted in approving the Wheeler tax. Councilman Frisch said he understands this is a way for the Wheeler to earn income but he would like to find another way to fund these purchases. Don Taylor, finance director, said this could be borrowed from the general fund, if Council prefers. Council will have to approve this in the next supplemental appropriation ordinance. Councilman Frisch asked if there is a general policy regarding interfund loans. In the past the city has used the Wheeler fund for interfund loans because it has the most reserves. Council agreed they should have a general discussion of using city funds for interfund loans. Councilman Torre asked what benefits flow to the city by doing these interfund loans as opposed to other financing options. Taylor said using private financing, interest rates are above 3% for a 5 year loan; investing city funds for 5 years is earning .75% yield. It makes financial sense to use city money to finance this equipment as opposed to outside borrowing. There are savings and interest accrual to the funds making the loans. Councilman Skadron asked if a market exists for the used golf equipment. Steve Aitken, golf department, said there is a market for used golf equipment. Aitken said a fairway mower can gamer $35,000 back; greens mowers have a short life expectancy; large rough mower units also are worth a lot. Councilman Skadron asked if dollars returned from the auction are deducted from this price. Taylor said the $232,000 is net of the auction. Councilman Skadron said there is no guarantee the city will receive money from an auction. Aitken told Council the first preference is an auction; however, there are other options in the industry to re-sell the equipment. Taylor said the debt is built into the long range financial structure for the golf course. Councilman Johnson asked if the money from the auction of this equipment will go into debt repayment or to the golf fund. Aitken said it will go back into the golf fund. 4 Regular Meeting Aspen City Council March 12,2012 Resolution#12, 2012 - Fluoride Councilman Torre noted Councilmembers have been inundated with information on both sides of the fluoride issue. Councilman Tone said Resolution #12 recommends lowering the fluoride additive from 1.0 ppm to .7 ppm, which is the federal recommendation. Councilman Tone stated he has been convinced to not add any fluoride to Aspen water. Aspen has naturally occurring fluoride levels of.2 to .5 ppm. Adding fluoride seems to be medicating 9 out of 10 people because 1 out of 10 people need the additive. Councilman Tone recommended the city cease adding fluoride. Councilman Skadron agreed this is a complicated issue and Council has had lots of information. Councilman Skadron said with the trade offs and benefits and risks, there are scientific conclusions that suggest the appropriate action is to decrease the amount of fluoride in the city's water, which action best addresses the public health concerns. Councilman Johnson concurred from all he has heard, it is appropriate to reduce the fluoride to .7 ppm. Charlie Bailey, water department, told Council there are no domestic sources of fluoride. Bailey said the fluoride should be thoroughly tested to make sure of what the bags contain. Mayor Ireland suggested the testing be more extensive and be ready if the standards change. Bailey said Aspen has the best water in the world and adding fluoride is polluting that water. Mayor Ireland moved to approve Resolution #12, Series of 2012, adding fluoride at .7 ppm, with the stipulation that the department create extensive testing protocol and review it annually; seconded by Councilman Johnson. All in favor, motion carried. Councilman Johnson moved to approve Resolutions #16, 17 and 20, Series of 2012; seconded by Councilman Skadron. All in favor, motion carried. ORDINANCE#6, SERIES OF 2012—Aspen Modern Designation 514 E. Hyman Amy Guthrie, community development department, reminded Council this is an Aspen Modern negotiation. This building was built in 1971, designed by Robin Molny, an important local architect, who trained with Frank Lloyd Wright for 5 years and is the architect of other landmarked buildings in Aspen. This building is in a two block stretch of Aspen Modern buildings, like the Benton building, Crandall building, Aspen Athletic club. It is highly visible to the community. This building was not included in the Ordinance #48 list of Aspen Modern; however, using the scoring system for historical importance, the building was scored well. The veneer installed in the 1980's can be removed and nothing else was done to change the original architecture. Staff and HPC find this building worth preserving. Ms. Guthrie said the applicant is asking for 3 negotiated incentives from Council; (1) to remove an agreement from 1980 relating to space in the basement, which may have been related to floor area restrictions, however, basement does not count in FAR; (2) approval of a free market unit for the upper floors, HPC granted approval for this modest space; (3) a 5 year vested rights. Mayor Ireland asked about affordable housing. Ms. Guthrie said the project is exempt from affordable housing, as are all mixed use projects. Ms. Guthrie said if the building were not designated and they wanted to construct residential, affordable housing would have to be 5 Regular Meeting Aspen City Council March 12,2012 mitigated for. Ms. Guthrie said this is an existing exemption available for all landmarked buildings, which are not required to mitigate. Ms. Guthrie noted the free market unit meets the maximum net livable unit size of 2000 square feet but it goes over the allowable FAR. The FAR calculation for residential units requires they include common space, circulation, lobbies. The FAR for this unit is 2,640 square feet; the allowable FAR is 1500 square feet because of the size of the lot. Bob Starodoj, applicant, told Council Mason and Morris is a 50 year old business in Aspen. Starodoj said the applicants feel this building needs upgrading to meet the changing real estate business and to increase efficiency and access. Starodoj said they hope this design will benefit the applicants and the community. Mitch Haas, representing the applicant, noted this is a three story, one user building and is inefficiently laid out with empty spaces. The design does not lend itself to being divided for other tenants, making it inefficient and economically unsustainable. The building has no ADA accessibility, including getting entrance to the building. Haas said this building fits well in the voluntary designation Aspen Modern building. Haas noted that although this building was not on the original Ordinance #48 list, owners can still apply for Aspen Modern. The HPC unanimously voted in favor of landmark designation. The Aspen Modern goal is to reach a mutually acceptable agreement for the designation of the property and Council can grant entitlements or fee waivers. In this, Council is to seek compatibility with the neighborhood, weigh the benefits on whether the building is a good, better or best example of the 20th century history. HPC deemed this to be in the best category. Haas said the applicants have asked for as little additional building as necessary to make the project work. Haas noted the project contains significant community benefits; the project will be permanently historically designated; there will be reduced development on the property, a restored Robin Molny building, compatibility with the neighborhood. Haas said the property will be more flexible and more sustainable for commercial space, ADA access will be added, there will be alley access, there will be an enhanced south-facing public amenity tied into the public space of the Elk's building. Haas said if this building is historically designated and the proposed plan is approved, there is little likelihood of an applicant coming in, demolishing the building and building out to the sidewalk. The applicant is committing to substantial restoration efforts, providing ADA accessibility, to leaving 30% of the allowable FAR unused, committing to a large front yard setback with south-facing public amenity dwell space. Haas said in exchange for the applicant's commitment, they are requesting to extend vested rights to 5 years, to shift a portion of unused commercial FAR to residential use, and to agree the unsigned agreement regarding the basement is of no effect. Haas stated the city will receive immediate and permanent historic landmark designation and review authority over the property. Haas said the floor area request is another incentive. The CC zoning allows this property to be up to 8250 square feet of FAR of which up to 6,000 square feet could be commercial use and 1500 square feet would be residential use. This proposal is 5770 square feet of FAR, 30% less than allowed. The proposal includes 6140 total square feet of commercial; the existing 3000 square feet of basement does not count in the FAR. Haas pointed out the proposal is to shift under 40% of the unused commercial FAR to free market residential space. As required by code, the above grade commercial floor area will still exceed the net livable space in the free market residential unit. The total net livable of the free market residential unit is 1,917 square feet and 2000 square feet is allowed in the zone district; 6 Regular Meeting Aspen City Council March 12, 2012 however, including all space, percentages of the hallways, stairways and thicknesses of walls add up to 2633 square feet. Haas told Council he researched the existing agreement on the basement; the agreement does not seem to be in response to a Council or P&Z approval but to a building inspector concern regarding the then-effective FAR limits. The agreement is not signed by the city nor is it recorded. Haas pointed out under the existing code, the basement level does not count in FAR, and the document has no effect on housing mitigation calculations. John Cottle, architect for the project, showed the location of the property in context with the surrounding area. Cottle noted five important aspects of the project are (1) the request is not to maximize the allowable floor area; (2) it is the only Aspen Modern building in the middle of a block, (3) it proposes to lower the existing building by 5', (4) there is a significant setback of the existing building that will be preserved and (5) the open space will be preserved. Cottle noted this is a 30' traditional city lot resulting in a small building, the footprint is 2200 square feet. The building is setback 20' and the area in front will be preserved as public open space if the project is approved. Cottle showed the building from various angles in the city's sketch up computer model. Cottle pointed out the third floor is setback 33' from the property line, showed the increased visual impact. Councilman Skadron asked the height of the new addition. Cottle said it is 40'. Cottle showed the existing plaza, which is about 24" above the existing sidewalk. and the plaza is entirely on private space. This area will have seating, is south facing and will tie into the open space area to the west. This current plaza is designed to hinder people getting into the building. Cottle went over the floor plans. showing the stairways required for egress as well as the elevator, which take up a lot of space. The second floor will have both residential and office space use; the third floor will be residential net leasable of 1248 square feet. The building is set back 20' from the property line and the roof plan is setback 33' from the property line. The elevator has a required 5' overrun will be 45' and will be 62' from the property line. Cottle showed sections of the building and illustrated what part of the property will not be developed. Mayor Ireland opened the public hearing. Bob Leatherman, trustee Elk's Lodge, told Council they have just become aware of this project and would like a chance to learn more about the project and the impact on the Elk's building. Starodoj noted this project was publicly and legally noticed; however the did not have a dialog with the Elk's. Leatherman said he would like to be able to explain the project to the Elk's members. Mayor Ireland said the presentation of what the request is and what the applicant is offering is clear; however, he suggested this be continued so that the Elk's can meet with the applicant. Ms. Guthrie read into the record a letter from Bill Stirling supporting the project. Mayor Ireland closed the public hearing. Councilman Skadron asked what the alternative development plan might be, if the building could be demolished and rebuilt. Ms. Guthrie answered if demolished and rebuilt, applicants would receive a 6,000 square foot credit that would not require affordable housing mitigation, above that, they would go through growth management, HPC commercial design review. The building could be 8250 square feet. Mayor Ireland said he does not like the code exemption for mixed 7 Regular Meeting Aspen City Council March 12,2012 use buildings and this should be changed in the land use code. Cottle said his slides with the red box around the building show what could be built on the site. Cottle said this project is not pushing out commercial uses for residential uses but is helping retain a long time local business. Haas said this is an adaptive reuse of an existing building and will be a flexible structure. Councilman Skadron asked for the next meeting that the applicant comment on adaptive reuse and possibilities of ground level commercial and if there is a possibility of conditioning a ground level space for a locally serving retail to garner broader community benefit. Starodoj said this plan will enhance their space and the Elk's space to make it a better pedestrian experience. Starodoj said the basement is currently not being used or is used as storage. This space will be re-activated as commercial. The space is 2550 square feet. Councilman Tore moved to continue Ordinance#6, Series of 2012, to March 26; seconded by Councilman Johnson. All in favor, motion carried. RESOLUTION #22, SERIES OF 2012—Appeal of Slope Determination 219 S. Third Chris Bendon, community development department, told Council this appeal of an administrative decision; the appellants are Paul and Angela Foster and STAspen LLC, represented by Jody Edwards. Bendon stated this is a hearing based on the record. The decision was to accept an estimation of pre-development topography for 219 S. Third, which has an effect on the calculation of floor area based on the slope of the site. Bendon noted the standards for appeal are denial of due process, the body exceeded its jurisdiction or abused its discretion. The appellant is making a claim on the fact that the administrative body abused its discretion. Bendon told Council in making his decision, he reviewed a survey of a registered engineer and checked this work with the city engineer, who is also a registered engineer. Bendon stated discretion is necessary in making any decision. Bendon said the code allows the community development director to accept an estimate of pre—development topography prepared by a land surveyor or registered engineer. The director may require other documentation. Bendon stated he had a clear report from a registered engineer and felt additional information would be redundant and that he had enough information to make a decision. Bendon said that was not an abuse of discretion. Bendon noted the code states pre-development topography is where sites have been changed by prior development and there is 130 years of prior development around Aspen. This allows for a professional examination of the property and a determination of what was the prior topography. Bendon reiterated he had two professional analyses and the clarity of their responses indicate it is a cut and dried case. Jody Edwards stated his clients have no objections on due process or jurisdiction; the basis of the appeal is abuse of discretion which is failure to consider the entire record and all circumstances. Edwards pointed out the minutes of the prior hearing on this issue are not part of the record. Edwards stated minutes are always part of a record in making determination on a development or specific property; staff should be looking at its own files when making a decision. Edwards ignored the history of discussions on this property. Edwards stated a superficial examination is not enough on this topic and what is needed is soil borings to determine the true nature of the slope. 8 Regular Meeting Aspen City Council March 12, 2012 Edwards read from the prior hearing minutes discussing the slope of this piece of property and that the owners of the property would submit evidence on what is natural and what is manmade, which might include borings. Edwards read "the Mayor suggested it be the burden of the applicant to show what the natural slope was and in the absence of that, it should be what is visible". Edwards pointed out an e-mail from the engineering department stating,"without doing test borings, there is no way to tell". Edwards said the letter from John Howoth said he made a superficial examination of the property; he made no borings and made a best guess based on a visual examination of the property. A lot of time was spent on this issue and that part of the record should not be ignored and it is an abuse of discretion not to require borings to determine what part of the property is manmade. Jim True, city attorney, said Council has to make a determination and find the decision maker acted in an arbitrary and capricious manner which is determined by a review of the record and whether there is any evidence to support the decision. There is evidence in the record, the letter from Howoth, and Council would have to determine that Bendon's reliance on that is arbitrary and capricious. True said the code is clear on the community development director making the determination and there is evidence in the record. Mayor Ireland said he does not see anything in the record that contradicts the finding of the community development director. Mayor Ireland moved to adopt Resolution#22, Series of 2012, to uphold staffs position as it is not abuse of discretion to find fact without doing borings; seconded by Councilman Johnson. All in favor, motion carried. ORDINANCE #7, SERIES OF 2012— 217/219 S. Third Street PUD Chris Bendon, community development department, said this application is for approval to build two single family houses where a duplex currently exists. Bendon said this property consists of the lower lot, where the duplex exists, and the upper lot, which is bisected by the Midland trail. The upper lot is subject of a law suit regarding ownership of the upper lot in which the applicant has presented title to the property as part of this application process. The staff assumed ownership by the applicant in reviewing the development application. The lower lot is 9,942 square feet, is zoned R-15, residential; the upper lot is 3,496 square feet and is zoned P,park. The application is to split the lower lot by a lot split and to add a deed restriction to the upper lot. The lower parcels will be less than what is allowed in the R-15 zone so there is a request for PUD approval to establish the allowable floor area and the setbacks. A standard lot in R-15 zone is 15,000 square feet. Bendon said the zoning of the upper parcel to park may have been done under the assumption that the parcel was owned by the city. If not, the parcel may have been rezoned without the property owner's consent. If the upper parcel were zoned R-15. it would allow a floor area of 1903 to 2538 square feet, depending on the slope reduction calculation. The lower parcel would allow a FAR of 4145 square feet, which could be divided into a duplex and could be split into 2072 square feet per side for a duplex. The total FAR for the two parcels is 6048 to 6683 square feet. The applicant proposes not to build on the upper lot and to build 5902 square feet divided into two on the lower lot which would be 2951 square feet per unit. Staff recommends a floor area on 9 Regular Meeting Aspen City Council March 12, 2012 the lower lot of 5414 split evenly between the two parcels of 2707 square feet. These are both less than the current approval. Bendon said there are four issues for Council to discuss; floor area; a request for deck square footage above that allowed by right and not have that count against the FAR allowed; the issue of the manner of the open space transfer and the deed for landscape maintenance; the affordable housing requirements. Bendon recommended approval of this application with staffs changes. Bendon said there could be development on the upper parcel where the Midland trail crosses,which would not be a desirable outcome. The PUD proposes preserving the parcel and distributing the floor area into two structures. P&Z recommended denial; they wanted to see the court case resolved first prior to reviewing the PUD. Bendon said the affordable housing mitigation will be cash-in-lieu of $238,000. The applicants request 390 square feet of deck space in addition to the allowable 15% exempt from floor area calculation. Bendon showed photographs of the neighborhood illustrating what is there, the look and feel of the neighborhood, a current front yard setback, the alley and encroaching building. Suzanne Foster, applicant, reminded Council there have been several applications on the property over the past few years, including Ordinance #48 review, not approved by Council, and a rezoning to R-6, which P&Z did not approve. This PUD application has solutions to the applicant and to neighborhood goals, preserving the trail and open space, resolving the ownership issue, decrease in density and clustering development on the lower lot. Ms. Foster said the principles of the proposed PUD are to dedicate the upper lot to open space, to split the lower lot into two parcels, to allow for two single family houses on the lower lot. Ms. Foster noted a 1200 square foot carriage house is allowed and if that is part of the plan, the applicants will get a 600 square foot FAR bonus. The carriage house would mitigate for affordable housing; it would satisfy the 10% detached mass requirement and provides a 600 square foot bonus. Ms. Foster said under this scenario, there would be 8483 square feet above grade heated living space with 5 units of density and 8 to 10 cars. The PUD proposal would be two single family lots with 2951 square feet of FAR each or a total of 5900 square feet, decrease in density to 2 units and decreasing on site cars to 4. Ms. Foster said adopting a PUD will permanently preserve a large parcel of land as open space and provide continued use of the hiking trail and resolve litigation. This will eliminate construction on the upper lot, reduce above grade buildable mass by 2581 square feet, reduce the overall density, reduce bedrooms from 16 to 8 and reduce the number of cars on property. This will improve the alley access by creating an easement over lot 1 to make a 17' wide driveway. Bendon noted if Council adopts staffs recommendation, the affordable housing mitigation would be slightly lower because less square feet of FAR would be allowed. Ms. Foster said the original mediation document allowed more FAR than this PUD proposes, about 6682 square feet. Ms. Foster said the applicant decided to reduce the amount of square feet to what would be allowed under R-15 zoning on this size lot. The land use code allows 2951 square feet on a lot size of 4971 square feet; this total 5902 square feet of buildable mass, less than the buildable mass allowed under current zoning,which allows 5945 square feet of above grade buildable mass. The PUD guarantees less build out on the lower lot. Ms. Foster noted staff s recommendation of 2707 square feet/lot does not work for the applicant. With the FAR allowed by code, these lots will have more open space than surrounding lots. This request is what other land owners could get under the R-15 zone. 10 Regular Meeting Aspen City Council March 12, 2012 Ms. Foster said the applicants are asking for 380 square feet above grade deck and patio FAR in additional to the 15% allowed. Ms. Foster pointed out these lots are well suited to additional deck space; they are mountain side with few privacy issues; the upper lot has 2598 square feet of FAR and the applicants request 780 square feet be transferred to the lower lots to obtain the balance of the development lots. Ms. Foster said the applicant's third request is a privacy landscape easement, to install and maintain the landscape. Staff does not support this as they feel the parks department can do this. Ms. Foster said the current landscape easement for the railroad was put there to create a buffer between the hiking trail and the development on the lower lot. On the steep area. there is no screening and property owners can see and hear the trail users. They would like to take the area of the upper lot and use it to create adequate screening for the lower lot and forestall installation of park benches or improvements that would overlook the lower lot. The applicants feel this request is reasonable and necessary. Ms. Foster requested relief from the affordable housing cash-in-lieu of$238,000. The applicants could build a carriage house to provide mitigation for both halves of the duplex. Relief from affordable housing cash-in-lieu is part of the incentives in Ordinance 48, although this is not an Ordinance 48 negotiation, the applicant's request Council accept the preservation of the hiking trail as an appropriate exchange for mitigation. Mayor Ireland opened the public hearing. Jody Edwards, representing Paul and Angela Young and STAspen LLC, stated this is a lot split, which is a specific form of exemption from subdivision and which has different application requirements, different notice and process requirements than a subdivision. Edwards said because a lot split is easier to process, there are extra criteria to meet outlined in 26.480.030(a)(2). There are 7 criteria listed in that subsection, one of which is that no more than two lots are created by the lot split and that both lots conform to the requirements of the underlying zone district. Edwards said the underlying zone district is R-15, which requires a 15,000 square foot lot size. This application is for a pre-existing non-conforming lot and a lot split will make that even more non-conforming. Edwards said the PUD overlay section, one is allowed to vary the lots sizes and other dimensional requirements. Edwards said courts have interpreted this to give meaning to every word and in this case giving meaning to underlying zoning requires the lot split conform with R- 15. Edwards noted the code says the more restrictive of the two sections should be applied and that requires conformity with the underlying zone district. Edwards said it would be a violation of the code to grant a lot split. Edwards said P&Z member stated that PUDs are designed to help foster innovate and flexible development and this is not innovative or flexible. Edwards said in the city's motion for dismissing the lawsuit is a good argument that the city owns this property. Edwards said when the city believes it owns property, how can Council be discussing giving a transfer of that property to give the city a quit claim deed to its own land. David Bentley, 40 year resident of the neighborhood, stated the lowest common denominator is that the applicants paid for a certain zoning and they want more than what they paid for. The neighbors do not want any more development. 11 Regular Meeting Aspen City Council March 12 2012 Paul Young, 413 West Hopkins, pointed out the property across the street is R-6 zoning, which is different than R-15. Young noted that for the past 3 years, there has been no neighborhood support for this or any other project on this lot. Young said the applicant is asking for more development and a 60% reduced front yard setback. John Statten, 431 West Hopkins, reminded Council in 2009, the applicant requested Council classify the duplex a classic Chalet building, which Council did not approve. In February 2010, there was a request to change the zoning to R-6. which was denied by P&Z. Statten pointed out all applicant's attempts have been to get as much building as possible on the lots; this is overbuilding; this is impacting the trail and impacting the neighborhood. This should be an R-15 duplex, which is what the applicants purchased. Statten said in granting FARs based on the slope determination, Council has to make a decision on how much land is manmade. Steve Goldenberg stated there is not a reason to say yes to this project. Goldenberg said there was no outreach to him on this project. Michael Behrendt, St. Moritz, said Council should find there is 4125 square feet of FAR allowed. Angela Young, 413 West Hopkins, told Council when they built their house, they abided by the R-15 zoning. Ms. Young said they believed that this zoning provided assurance in terms of future development and resulting impacts. Ms. Young pointed out to qualify for a lot split in the R-15 zone, one would have to have a minimum lot area of 30,000 square feet. The applicant has no more than 9942 square feet. Ms. Young stated the applicant is overburdening the lot and the end result will be detrimental to the Midland trail and to the neighborhood. Ms. Young said there has been no outreach to them as adjacent property owners. Ms. Young said the applicant should build what she is entitled to build under the current R-15 zoning. Scott Stuart, 400 West Hopkins, agreed with previous comments and asked Council to deny the project. Dan McCarty. 333 West Hopkins, said he does not think this project should have gotten this far. McCarty said there is a court case going on and the city is letting this application come before them. Council should deny the project. Tammie Stuart, 400 West Hopkins, said their building has considerable green space around it contributing to the open feeling in the neighborhood. Ms. Stuart said this is trying to fit 10 pounds in a 5 pound bag. Mayor Ireland closed the public hearing. A letter from Mita Barton, opposed to the project, was read into the record. Ms. Foster told Council they have a survey provided by Aspen Survey and title insurance from Pitkin Title insuring ownership of the land, and the applicants, based on these documents, think they own the land. There is an active lawsuit with the city; however, one of the requirements of the on-going litigation was for both parties to enter into mediation. Ms. Foster shared some development ideas with the mediators and was asked to present these as a PUD. Ms. Foster said this proposal will be less dense; she could build more than this presentation under the current zoning conditions. Bendon said there was a question regarding the use of lot split. Bendon said planned unit development is a land use review allowing Council to approve variations in underlying zoning and it is a circular argument to say one can do that and then have to comply with the underlying zoning. Bendon stated his position is that these lots comply with the underlying zoning as varied 12 Regular Meeting Aspen City Council March 12, 2012 through the PUD. Bendon said there was a comment made about the PUD and whether this was innovative and creative development. Bendon said through PUDs Council looks at balancing community goals and the preservation of open space is a community goal and an appropriate use of planned unit development. Bendon told Council staff looked at the base case of this property, part of which is the parcel containing the trail would be developed with two houses on the upper and lower lots. The PUD application will preserve the upper parcel that contains the trail; there will be two houses with less floor area total on the lower lot. Councilman Torre stated it is difficult to believe the upper lot has any development rights associated with it. Councilman Torre said he would be interested to go into executive session to hear from the city attorney about the law suit. Jim True, city attorney, told Council each party believes they have an ownership interest; the case is pending and has been briefed. The city's official position is that the city has an ownership interest in the property; however, the applicant has filed a claim for quiet title asserting their ownership of the property. True noted if the applicants are successful in the litigation, they will get quiet title to the property; there will be further questions about the park zoning as well as the location of the trail. Councilman Frisch asked what would make the neighbors satisfied. Paul Young said no more variances, no special considerations, that the applicant can develop what they may under R-15, meet the setback requirements. Councilman Frisch asked the by right development. Bendon said it is 2072.5 square feet for each side of the duplex. Richman noted two single family dwellings rather than a duplex would be more consistent with the neighborhood. Bendon noted part of this request is variations to the setbacks; staff did not have an issue with that request as the resulting development would be more consistent with the neighborhood. The setback off the alley for lot 2 would be the same as could be developed today. Mayor Ireland said it is hard to fathom that there is no middle ground; the neighbors are afraid that the applicant is reserving the right to cover every square inch of their property with building. Mayor Ireland said that would not be good or practical for the applicant. Mayor Ireland said the applicant should state they want two single family houses and is willing to agree to a smaller footprint so there will not be 100% coverage of the site. Ms. Foster said their negotiations with the neighbors have not resulted in any agreement. Mayor Ireland stated paying mitigation for affordable housing is not a negotiating point for him. The applicant stated paying the mitigation is part of the agreement. Mayor Ireland suggested the applicant get the FAR for the two buildings, the deck space on the back side, the open space transfer and the city agree to work with the applicant on suitable screening; the footprint will not go lot line to lot line. It is reasonable to specify footprints that leave open space. Ms. Foster said the concern for the neighbors is the area right behind their house and suggested 2700 square feet on the house closer to the Youngs and the house closer to Third street have a larger footprint. Mayor Ireland moved to go into executive session at 10:10 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. All in favor, motion carried. Council and staff adjourned to the city attorney's office for the session. 13 Regular Meeting Aspen City Council March 12, 2012 Councilman Johnson moved to come out of executive session at 10:25 PM; seconded by Councilman Tone. All in favor, motion carried. Ms. Foster stated if the applicants are allowed the FAR requested and the above grade deck space on the rear of the property, they are willing to pay cash-in-lieu for affordable housing and to work with the parks department for them to install appropriate screening. Ms. Foster proposed changing the building envelop to make a 25' rear yard setback for lot 2, and to maintain the 10' front yard setback and to setback the second floor 15'. Ms. Foster proposed reducing the FAR allotted to lot two 3200 square feet and lot one 2700 square feet. Paul Young said the FAR by right is 4145 square feet with a 25' front yard setback and a 10' setback and construction at the same time. Mayor Ireland noted Young's proposal is 4145 square feet and the applicant's proposal is 5900 square feet. Mayor Ireland said Council is considering in the area of 5400 square feet. Councilman Skadron outlined Council's agreement of two 2707 square foot buildings; cash-in-lieu affordable housing paid; a footprint is established; the decks as requested are allowed; city will landscape the berm area with input from the applicant and a 25' setback on the side yard. Bendon stated the setbacks for lot 2, the western lot, will be 25' from the western lot, and 10' from the alley lot line on the first floor 15' from the alley lot line on the second floor; the deck floor area as requested by the applicant, additional 390 square feet, is allowed. Ms. Foster said she was willing to divide the 5900 square feet between the two lots. Mayor Ireland said Council does not support 5900 square feet. Richman said the most important value in this is that the upper lot is not developed; the applicants want to give the city the lot free and clear and should be able to get some development rights from that transaction. This addresses a community wide interest. Lawyer for applicant pointed out the applicants have the right to build a 1200 square foot carriage house, earning a 600 square foot bonus, totaling 1800 feet plus 5900 square feet. Mayor Ireland moved to adopt Ordinance#7, Series of 2012, on second reading with the amendments lot 1, the right hand lot, shall have a maximum floor area of 2800 square feet; left hand lot, lot 2, will have a maximum floor area of 2300 square feet, will be set back from the alley no less than 20'; the southern side of the building envelop may be an additional 5' to the south; the applicant will pay the affordable housing fee; the parks department will work on landscaping in cooperation with the applicant; that property will not be developed as an active park; there will be total decks of 390' on the mountain side, in additional to the 15% allowed, not deducted from the allowable FAR; all other terms of the ordinance are as presented; seconded by Councilman Johnson. Roll call vote; Frisch, yes; Johnson, yes; Torre, no; Skadron, yes; Mayor Ireland, yes. Motion carried. Councilman Torre stated he did not support the application as the applicant has taken 3 years to try and put as much development on as possible and to develop on property owned by the city. RESOLUTION #13, SERIES OF 2012 —Action on Referendum Petition 14 Regular Meeting Aspen City Council March 12, 2012 Mayor Ireland said Council can either repeal the ordinance that was subject of the referendum petition or can call a special election for May 2012. Connie Harvey said over 900 signers were in favor of having an election and she hopes that will happen. Ms. Harvey said the city seems to be proceeding without permits. Ms. Harvey said this project will destroy the stream. Ward Hauenstein stated there were over 594 certified signatures, indicating concern with the project, either financial or environmental. Hauenstein said it is Council's option to repeal Ordinance #30. Hauenstein said he likes scheduling a binding election in November in clear, understandable language. Hauenstein stated if there is a question on the November ballot, in understandable language, he will direct his energies towards fair public discussions of the environmental and financial issues of the project. Maurice Emmer agreed Council has the option to repeal the ordinance or to schedule a special election. Emmer stated the petition called for an election and it would be disrespectful to deny those people who signed the petition the election the expected. Emmer said a good binding up or down vote in November would help settle issues for the voters and for Council. Emmer said he would like Council to draft language as soon as possible so it can be evaluated. Emmer said if the language is not clear, he would mount an initiative that would meet those standards. Mayor Ireland moved to adopt Resolution #13, Series of 2012, repealing Ordinance #30, Series of 2011; seconded by Councilman Johnson. Councilman Torre said Ordinance#30 is a land use approval, which is not the large issue for people involved in this question. Councilman Torre agreed the community has the right to decide the fate of this project. Councilman Tone said although he has concerns about special elections in off season and the cost to the city, he would have supported that outcome. Councilman Tone stated a November election suits getting the most information out to the voters. Councilman Skadron said he feels the hydropower project is the right thing for the community; it is a well conceived project and a financially sustainable model. Councilman Skadron said if the public is to decide, thousands and thousands of dollars spent anonymously for a petition drive makes one skeptical about the possibility of an open public dialogue. Councilman Johnson agreed he would like to have a public vote in November and between now and then there will be time to gather information and to look at the financial aspects. Councilman Johnson said the hydropower project makes sense financially and environmentally. Councilman Frisch said no one wins with an off season special election and not a large number votes one way or the other. Councilman Frisch said Council is doing both actions suggested by the petition, rescinding the ordinance and scheduling an election. Mayor Ireland shared the concerns about anonymous donors and a campaign where money is given unanimously. Mayor Ireland said he would like Council to adopt a resolution joining other groups asking for a constitutional amendment about campaign donations. Mayor Ireland said the public is entitled to know who is funding campaigns. Councilman Skadron said losing the hydropower project is not a huge threat to the community; allowing anonymous campaigns is in direct opposition to small town values. All in favor, motion carried. 15 Regular Meeting Aspen City Council March 12,2012 Councilman Johnson moved to adjourn at 11:40 PM: seconded by Councilman Skadron. All in favor, motion carried. ithry Koch City Clerk 16