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HomeMy WebLinkAboutminutes.council.20120514 Regular Meeting Aspen City Council May 14, 2012 PROCLAMATION—Month of the Young Child 2 PROCLAMATION—Law Enforcement Appreciation Week 2 RESOLUTION #44, 2012—Maroon Creek Bridge marker 2 CITIZEN COMMENTS 2 COUNCILMEMBER COMMENTS 2 CONSENT CALENDAR 3 • Resolution#45, 2012 -Contract- Installation of Aspen Tap Filling Stations 4 • 2012 Burlingame Phase IIA Access Infrastructure Contracts: 4 • Resolution#48, 2012 -Aspen Consolidated Sanitation District 4 • Resolution#49, 2012 - Holy Cross Energy 4 • Resolution#50, 2012 - H-P Geotech 4 • Minutes—April 23, 2012 4 ORDINANCE#16, SERIES OF 2012—Code Amendment—Composting Toilets 4 RESOLUTION#51, SERIES OF 2012—861 Ute Height Variance 4 ORDINANCE#10, SERIES OF 2012—GMQS Review 700 E. Bleeker(Eagle's Club) 7 ORDINANCE#14, SERIES OF 2012—Historic Landmark Lot Split 202/208 E. Main 9 ORDINANCE#15, SERIES OF 2012—Code Amendment—Water Shortages 9 • 1 Regular Meeting Aspen City Council May 14, 2012 Mayor Ireland called the meeting to order at 5:04 PM with Councilmembers Torre, Johnson, Frisch and Skadron present. PROCLAMATION—Month of the Young Child Mayor.Ireland and Council proclaimed May 2012 Month of the Young Child and extended heartfelt thanks and appreciation to all those who work so hard to care for our youngest citizens, and commend these efforts and encourage community involvement of all citizens to recognize and support the needs of young children. Shirley Ritter, Kid's First reminded everyone about the 22nd annual kids' parade Thursday, May 17th at 10 AM starting at Boogies. PROCLAMATION—Law Enforcement Appreciation Week Mayor Ireland and City Council proclaimed May 15 —21, 2011 as Aspen Police Appreciation Week to recognize the dedication and service of Aspen Police officers and to honor the service and sacrifice of those law enforcement officers killed in the line of duty while protecting and safeguarding our communities and democracy. Mayor Ireland said the police department does a great job in Aspen and Council is proud of the department. RESOLUTION #44,2012 —Maroon Creek Bridge marker Mayor Ireland said this marker outlines the history of the original Midland bridge, which was first used as a railroad trestle bridge and then as an automobile bridge. Mayor Ireland noted this bridge served as a primary vehicular access into Aspen for 90 years. There is a request to dedicate a historic marker honoring D.R.C. Brown Sr. who purchased the bridge and contributed it to Pitkin County. Jim Markalunas said Aspen has a unique heritage and if the remnants of the past are not preserved, where will future generations learn of Aspen's trials and triumphs. Mayor Ireland moved to approve Resolution#44, Series of 2012; seconded by Councilman Johnson. All in favor, motion carried. • • CITIZEN COMMENTS There were no comments. COUNCILMEMBER COMMENTS 2 Regular Meeting Aspen City Council May 14, 2012 1. Councilman Johnson thanked staff for the Arbor Day festivities last weekend in Paepcke Park with bucket rides and tree give aways. It was a good event. 2. Councilman Johnson announced this coming weekend is the Aspen Lacrosse tournament. 3. Councilman Torre presented a video "Choose reusable" and said no one in Aspen should be without reusable bags. Councilman Torre thanked the bag ambassadors who worked the week the bag ban went into effect. 4. Councilman Frisch commended Ashley Cantrell for her work on getting the bag ban off with few hitches. 5. Councilman Frisch commended the Aspen Board of Realtors for trying to get rid of the "for sale" signs around town. 6. Mayor Ireland noted Saturday is the Independence Pass Foundation ride up Independence Pass to raise money for restoration of erosion on the pass. 7. Steve Barwick, city manager, requested VI(b) Resolution#47, 2012, Truscott Affordable Housing Building 100 Master Plan be taken off the agenda. It will come back at a later date. 8. Councilman Skadron reported on the RFTA Board meeting and that BRT is progressing as planned. Work on the first two BRT stops is underway. The Hunter Creek bus has the digital read out for reporting information that is part of the new software system. A $12 million order has been placed for 22 new CNG buses. 9. Councilman Johnson announced NW Colorado Council of Governments has a new executive director, Liz Mullen, who has been the acting director. 10. Councilman Johnson said RWAPA has received a grant and the inspection program for boats at Ruedi will go on 7 days a week. Councilman Johnson said the RWAPA Board is looking at a proposal to loan Ruedi water. Mayor Ireland said that is a good gesture where it can work. CONSENT CALENDAR Mayor Ireland moved to approve the consent calendar; seconded by Councilman Tone. The consent calendar is: • • 3 Regular Meeting Aspen City Council May 14, 2012 • Resolution#45, 2012 - Contract - Installation of Aspen Tap Filling Stations • 2012 Burlingame Phase IIA Access Infrastructure Contracts: • Resolution#48, 2012 - Aspen Consolidated Sanitation District • Resolution#49, 2012 - Holy Cross Energy • Resolution#50, 2012 - H-P Geotech • Minutes—April 23, 2012 Councilman Skadron asked about the budget for the Filling Stations. Ashley Cantrell, environmental health, reminded Council this project is funded by the water department savings and there is money to pay for these stations. All in favor, motion carried. ORDINANCE #16, SERIES OF 2012—Code Amendment—Composting Toilets Councilman Torre moved to read Ordinance #16, Series of 2012; seconded by Councilman Johnson. All in favor, motion carried. ORDINANCE NO. 16 Series of 2012 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 13.04 OF THE ASPEN MUNICIPAL CODE REGARDING WATER QUALTIY Councilman Frisch asked if this is just for Rio Grande park or can it apply other places. CJ Oliver, environmental health department, said it is not site specific. Councilman Johnson asked if there are negative consequences. Oliver said only if the tank was to leak and the ordinance requires a secondary containment unit. Oliver said he does not see drawbacks. Councilman Johnson requested for second reading comments from the building department on construction. Mayor Ireland moved to adopt Ordinance #16, Series of 2012, on first reading; seconded by Councilman Tone. Roll call vote; Johnson, yes; Frisch, yes; Skadron, yes; Torre, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #51, SERIES OF 2012— 861 Ute Height Variance Chris Bendon, community development department, told Council this is a new single family house under construction at the corner of Ute and South Aspen Alps road. This application is for a height variance at the rear of the property. Bendon noted the city measures height to the lowest 4 Regular Meeting Aspen City Council May 14, 2012 point around a building and the sunken patio areas are lower than permitted, causing a height problem. Bendon said as department director, he accounts for what anyone in the department does and he agrees with staff's action in this instance. Bendon stated the city's variance criteria are strict, especially for height, and this application does not meet the criteria for a height variance. Bendon said in order to grant a variance, it needs to be a situation where there is no other option for the applicant. Bendon pointed out the permit application demonstrates how to comply. Bendon said another criterion is that this cannot be a self-created situation. Staff is recommending denial of the variance request. Bendon pointed out this is not a highly impactful variance, much of the house is below the height limit and the increase is for a patio to be lower not for a roof to be higher. Bendon entered into the record a letter from the Aspen Alps, opposed to the variance. Councilman Frisch asked if staff made mistakes in this process and how does the city rectify those. Bendon said he does not think staff made a mistake; the record is clear there was uncertainty on the plans, with which height was the applicant intending to comply with, the plans were changed to show a height of 24'9", which complies with the 25' height limit. Bendon told Council staff and the applicants went through this twice. Bendon said the project needs to comply with all the regulations and when something like this comes to light, staff has an obligation to make the applicant aware of it and that the project conforms. Bendon told Council when the applicant responded to questions about the height, they responded • with new drawings that demonstrated compliance with the height. Councilman Johnson asked if staff feels there is life, safety or water mudflow issues. Bendon said the mudflow issues are peripheral to this issue and the engineering department should address those. Bendon stated he is not aware of any life, safety issues. Councilman Skadron asked about the statement that property owner must show that reasonable use of the property was withheld by the city. Bendon said that it is a requirement the applicant show that reasonable use of the property has been withheld. Bendon read Section 26.314.040 standards applicable to variances; that the variance will be generally consistent with the purposes, goals and objective of the municipal code; that the grant of variance is the minimum variance that will make possible the reasonable use and literal interpretation and enforcement of the terms and provisions would deprive the applicant of the rights commonly enjoyed by other owners in the same zone district. Bendon told Council plans submitted to the city demonstrate a height of 24'11.5", which is not the current condition. John Olson, applicant, told Council he did not build a house taller than allowed; this house could have been a few feet taller. The decision was to shrink the house closer to the ground; there is no point in the house above what original grade height limit would have allowed. Olson said this is an exposed area of the building variance and reiterated the building is below what could have been built. Olson showed the original set of plans he gave the building department in order to receive a building permit. Olson said during the course of construction, the building department came by the site for many different inspections and measured many dimensions, all of which were within 1/8 inch. Olson said this situation was not self-inflected. Olson noted within the set of blue prints there are thousands of dimensions and there is only one dimension that refers to the 24'11.5" and all other structurals and dimensions are what exist on the site. 5 Regular Meeting Aspen City Council May 14, 2012 Olson said this is in an area of the building that no one can see; it is not a height variance; the city would not be setting a precedent by granting this. Olson told Council there was no contract administrator on this job and he did not receive e-mails about this. Olson said the issue is that a patio was lowered. Councilman Johnson asked what the options are at this point. Councilman Torre said he feels the options are (1) approve the variance; (2) make changes to the building changing the doors or windows; (3) fill in the patio; and (4) fine the applicant. Bendon said there is not an option to fine the applicant but the other 3 are options. Olson told Council the architectural contract is one between the architect and the owner and he is not privy to the details except that this included no construction administration. Bendon said the most recent drawings are very clear on how to comply. Stephen Kanipe, building department, brought up the March 16th change order which was a result of conversation with staff and showed a situation that would be code compliant. Mayor Ireland asked if the applicant was originally permitted to do what is currently built on site. Olson answered yes. Kanipe said staff told him there appeared to be compliance on the architectural plans on the original submittal and there appeared to be a discrepancy when the structurals were overlaid on the architectural. Kanipe said contractors build to the structurals and staff believes that may be a possibility of the discrepancy in the height. Bendon showed drawings from the most recent architecture set with final grade from which the height of 24'11" on sheet 4/2 and on sheet 3/2 it shows the patio is filled in measuring from the earth results in a different height. Olson noted that is only one page and one dimension. Bendon told Council that is one dimension staff asked for clarity on and got that clarity. Bendon agreed the building could have been built higher; however, according to the design it does not meet the height limitations. Bendon told Council there were discussions with the applicant about pursuing a variance versus demonstrating the height. The applicant said they would demonstrate height; they had been pre-apped for a variance. The applicants submitted a change order; staff did a site visit and realized the height difference. The variance application was received after the change order. Bendon said the change order demonstrates that the applicant realized what was actually happening on site. Denis Murray, building department, told Council staff asked for measurements from the architect of record to show the developed grade, the existing grade and how the height is defined. Murray noted measuring plate heights cannot give the relation to constructed grade or natural grade. Bendon said the plans would not have been approved unless they showed a height of 25' or below. Olson said the zoning enforcement officer looks at the architectural drawings, not all the structurals. The builder looks at the architectural for finishes, trim but build off the structurals. This leads to a disconnect. Olson said there is only a 14" discrepancy that could be taken care of with steps or with a planter. Councilman Johnson asked if there is a compromise possible. Mayor Ireland pointed out there are 3 criteria for granting a variance and there have been no facts alleged that this would meet those criteria in order for Council to grant a variance. Mayor Ireland noted there is a dispute about how this happened but no allegation that staff misled the applicant or that staff did not act properly to evaluate what was submitted nor is there a basis for finding that the city is depriving the owner of economic use of his property. Mayor Ireland moved to deny the request for the variance; seconded by Councilman Skadron. 6 Regular Meeting Aspen City Council May 14, 2012 Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. All in favor, motion carried. Council's direction is to work with the applicant on a solution that complies with the code, not seeking any fines or retributions. The findings were that there were no grounds for a variance. ORDINANCE #10, SERIES OF 2012—GMQS Review 700 E. Bleeker (Eagle's Club) Jessica Garrow, community development department, told Council the Eagle's Club has applied to memorialize the existing catering use for which P&Z approved a conditional use amendment. This request regards affordable housing mitigation under the essential public facilities section of the growth management code. Ms. Garrow said this subdivision was approved in 1977 and in several property exchanges; this parcel was given to the Eagle's Club. Ms. Garrow said the Eagle's Club received a conditional use approval in 1978; the property is now zoned R-6 PUD and a fraternal club is an arts, civic or cultural use. The Eagle's Club has requested permission for a commercial catering business to operate in the basement, which has been approved. Ms. Garrow reported the space has been used for the past 14 years by a commercial catering operation and for the past 12 years it has been Conundrum Catering who has 3 FTEs. Both P&Z and APCHA recommended Council waive the affordable housing mitigation for 3 employees. Ms. Garrow told Council the Eagle's Club is considered an essential public facility, which is defined as a facility that serves an essential public purpose, is available for use by or benefit of the general public and serves the needs of the community. The main purpose of the Eagle's Club is to provide to the public and work with area non-profits and contribute to these causes. Ms. Garrow noted the main point is whether the catering business is considered an essential public facility use or a commercial use, which is defined as land and structure intended to support offices, retail, warehousing, manufacturing, commercial, recreation, restaurant bar, service oriented business. Ms. Garrow told Council staff is concerned about allowing the catering business in this location without employee mitigation because it might create a precedent for other commercial operations to go into other essential public facilities like a church in an R-6 zone. New commercial spaces would require housing for the 3 FTEs. Ms. Garrow noted it is up to Council to decide whether or not to require mitigation for the 3 FTEs. Ms. Garrow said P&Z was clear they were approving a conditional use for one commercial catering operating and if there is a change beyond 3 FTEs, this will have to go through a land use process. Ms. Garrow entered into the record a letter from the neighbor, which is more directed to the Eagle's Club operation and not the catering. Ms. Garrow said if Council is interested, staff can draft a code amendment to make sure an operation like this will not happen in an essential public facility. The code has some safeguards but language to further clarify this can be written. Ms. Garrow told Council staff does not think there is any other location in town where this could happen. Councilman Skadron asked why APCHA is a referral agency. Ms. Garrow said any issues related to affordable housing or 7 Regular Meeting Aspen City Council May 14, 2012 affordable housing mitigation is referred to APCHA. Councilman Frisch asked the amount of possible mitigation. Sunny Vann, representing the applicant, said it would be over $400,000. Mayor Ireland asked if Conundrum Catering has had a sale tax license for every year operating out of the Eagle's Club. Ms. Garrow said they have and represented they were doing business at 700 E. Bleeker; they have been operating under all city rules and regulations, except for the zoning issue. Vann told Council Conundrum Catering is the food provider for the Eagle's Club and has a seasonal catering business. There are 3 full time employees and contract labor is hired when needed. They operate about 8 months/year, generally on the weekends. Vann said the kitchen has recently been remodeled and upgraded; they obtained building permits; they are inspected by the health department. Vann said the Eagle's Club is a non-profit entity; operating income is derived from social events, from membership dues, and the lease payment from Conundrum. The income supports the building and their charities. Vann noted that Conundrum Catering has made the kitchen available for businesses in the Saturday market, which is how this issue arose. Vann said the Eagle's Club has agreed to allow only one entity to use the facility and to continue to comply with all other regulations. Chet McIntyre, Eagle's Club, told Council the rent charged to Conundrum Catering is lowered during the off seasons, depending on the business and circumstances. McIntyre noted every cent from this lease goes back into the community. Conundrum caters to all fund raisers put on by the Eagle's. Councilman Frisch asked how to differentiate this request between other possible requests. McIntyre said one difference is that Conundrum is catering for the Eagle's Club as well as doing his own business; however, that is not a full time occupation. McIntyre said anyone else interested in something like this could be asked if they are willing to donate half of their time to the landlords. Vann said there are enough factors with this application that it would be difficult to argue precedent. Vann reiterated the city has issued building permits, business licenses for 14 years, the business paid sales taxes, the majority of the proceeds go into charitable efforts, and there are no adverse impacts on the community. Conundrum Catering takes advantage of a commercial kitchen, provides a service to the Eagle's Club and also has a side business where they cook at the Eagle's and serve it somewhere else. Ms. Garrow said the property owner would have been notified to pay the 60% mitigation. Councilman Johnson said it seems this is almost market rate rent due to the location and other obligations. Councilman Skadron said he objects to the general premise that an essential public facility should morph into a commercial operation. Mayor Ireland suggested his solution that the business has operated in good faith, trying to comply with the city rules and was never told to the contrary. Mayor Ireland said he would like staff to draft a code amendment so this circumstance does not happen again. Mayor Ireland said he does not want people to start non-profits so they can rent space from essential public facilities.' Councilman Frisch asked what happens if Conundrum is no longer in business at the Eagle's Club. Ms. Garrow said the ordinance as drafted would allow the Eagle's Club to rent the basement space to a catering business with no more than 3 FTEs. Councilman Skadron pointed out the memorandum states that staff cannot support the use of an essential public facility by a commercial operation. Jim True, city attorney, noted there is not a lot of precedential value in approving this ordinance; it is unlikely there will be other situations 8 Regular Meeting Aspen City Council May 14, 2012 with the facts in this case. Councilman Johnson asked the Eagle's to address the complaint about disturbances and late night noise. Mayor Ireland moved to adopt Ordinance #10, Series of 2012, on second reading; seconded by Councilman Johnson. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Roll call vote; Frisch, yes; Skadron, yes; Torre, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. ORDINANCE#14, SERIES OF 2012 —Historic Landmark Lot Split 202/208 E. Main Mayor Ireland opened the public hearing. Chris Bendon, community development department, told Council this is an application for a lot split for two Victorians on Main street to replace a condominium boundary with lot line. It does not grant any additional floor area. There is no development associated with this application. Each property will qualify for historic preservation incentives as each property is a landmark with two landmark structures. There can be two free market residences developed with no mitigation; however there is no increase in the development right. Councilman Tone said he prefers not to see the historic structures moved on the site. Bendon said this is an HPC review and they do not generally favor moving structures around on site. Mayor Ireland closed the public hearing. Mayor Ireland moved to adopt Ordinance #14, Series of 2012, on second reading; seconded by Councilman Johnson. Roll call vote; Councilmembers Tone, yes; Frisch, yes; Johnson, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. ORDINANCE #15, SERIES OF 2012—Code Amendment—Water Shortages Mayor Ireland opened the public hearing. Mayor Ireland asked about the public outreach program. Lee Ledesma, water department, told Council about 35 staff members have been working on voluntary reduction of 10% of water use in city facilities. Ms. Ledesma presented a brochure that will go out with the city's water bills. Ms. Ledesma said the water department has targeted the 100 largest users and will be reaching out to them letting them know ways to reduce water usage. Mayor Ireland closed the public hearing. Mayor Ireland moved to adopt Ordinance #15, Series of 2012, on second reading; seconded by Councilman Frisch. Roll call vote; Frisch, yes; Skadron, yes; Torre, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. 9 Regular Meeting Aspen City Council May 14, 2012 Councilman Johnson moved to adjourn at 8:35 PM; seconded by Councilman Tone. All in favor, motion carried. // Kathr,;► Koch S Clerk 10