Loading...
HomeMy WebLinkAboutminutes.council.20190311Regular Meeting Aspen City Council March 11, 2019 1 CITIZEN COMMENTS ............................................................................................................................... 2 CITY COUNCIL COMMENTS ................................................................................................................... 2 CITY MANAGER COMMENTS ................................................................................................................ 3 BOARD REPORTS ...................................................................................................................................... 3 CONSENT CALENDAR ............................................................................................................................. 3 Resolution #29, Series of 2019 – Contract for Replacement of electric Zamboni ................................ 4 Resolution #33, Series of 2019 – Contract with Publicis Sapient for Support of Salesforce/BasicGov 4 Resolution #32, Series of 2019 – Landis + Gyr Technology Inc contract for AMI project ................. 4 Resolution #35, Series of 2019 –Music Associates of Aspen (MAA) Marolt Lease ............................ 4 NOTICE OF CALL UP – Notice of HPC approval of Conceptual Major Development for 931 Gibson Avenue, HPC Resolution #2, Series of 2019 ................................................................................................ 4 ORDINANCE #7, SERIES OF 2019 – Debt Issuance Approval for Funding Construction for New Administrative Offices .................................................................................................................................. 5 ORDINANCE #6, SERIES OF 2019 – Historic Preservation Benefits Code Amendments ........................ 6 ORDINANCE #5, SERIES OF 2019 – Wireless Regulation Amendments ................................................. 7 RESOLUTION #25, SERIES OF 2019 – Removal of the Statement of Exemption from the Definition of Subdivision for 729 W. Francis St. ............................................................................................................... 9 RESOLUTION #31, SERIES OF 2019 – Appeal of variance granted by Resolution #4, Series of 2018 by the Board of Adjustment ............................................................................................................................. 10 Regular Meeting Aspen City Council March 11, 2019 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Mullins, Myrin, Frisch and Hauenstein present. CITIZEN COMMENTS 1. Mike Maple said thanks for getting Lift One on the ballot. Sorry to see the division on it. On the call up of 931 Gibson, it is next to my parents home. I was here last summer to encourage you to not do certain things regarding the lot split and bonuses. The application they came back with was not two houses with two garages. I was really excited to see that. There are no variances. It has all my support. One of the most important things about a city are the simple things like streets. I’m not 100% satisfied with the conditions of our streets year in and year out. That starts with the round a bout. I understand that is the purview of CDOT. I think you can encourage them to do a better job. It should be concrete. Cemetery Lane has drainage problems and should be improved. 2. Neil Siegel said he assumed the affordable housing system was tracking assets. It is a decade old problem. Council has twice funded for the development of a management system but no bidders fell within the requirements. It seems like the housing program is falling into the definition of insanity. Why not pause and take a look at the scope of the RFP. Perhaps the project is too ambitious. 3. Toni Kronberg said the streets department did a great job removing the ice this weekend. Voters approved Lift One and she is asking should we snowmelt South Aspen street before the project is complete. Something needs to be done with the pot holes in the round a bout. She asked to have the COPs for city offices be put to a vote. CITY COUNCIL COMMENTS Councilman Hauenstein gave a shout out to Tyler and the water department for their diligence over the weekend. There is a question about our water supply with avalanches. You can thank the water department for their diligence. This just points out the danger of our water supply. Streets deserves a big shout out in snow removal. They did a great job. I welcome Skippy on his election and Rachel in her coming home. Concrete for the round a bout has become a consensus. As far as the APCHA database scope, Neil you bring up valid points. We want to get it done and have control over the information. On snowmelt of S Aspen, the consensus was to see how gravel and salt works then snowmelt in the future if needed. Councilwoman Mullins gave congratulations to Skippy and Rachel. Thanks to all the voters for showing up. There was great discussion on the issues and good candidates. Thanks to the snowplowing and staff who has worked so hard to keep the streets clean. Neil, your comment about the tracking, it is time to look at the RFP. We need to get something done. On the census, Philip Supino is working on this. The 2020 census is 13 months away. Partners are organizing a valley wide campaign to get the info out there. Councilman Myrin said thanks to everyone who supported me in the most recent election and who voted no on the lift one proposal. I don’t see a path to solving our housing or traffic congestion problems when direction from the voters is to add hundreds of thousands of job generating square feet to Aspen with less than 100 % affordable housing mitigation. With no clear path to solve that problem I’m relieved and couldn’t be happier to retire from volunteering on these local campaigns. It’s time to let a new council and new volunteers resolve the impacts of adding this square footage to Aspen. If you know anyone looking for housing they need to double down now. The Sky hotel will open this year with only two affordable housing units and likely hundreds of hospitality workers needed. Eventually the Aspen Club, Lift One timeshare and Gorsuch will do the same under mitigating. Regular Meeting Aspen City Council March 11, 2019 3 Councilman Frisch said hats off to Torre and Ann and Rachel and Skippy. Some of us have been working on the housing administrative structure. APCHA was never set up for census but now it needs to get done. Hats off the Jerry and his crew. Mayor Skadron said thank you to all the candidates, it is really hard to sit at the council table. One thing harder than sitting at this table is running a campaign. Big thank you to Jerry and the streets department for keeping the streets clear. Thanks to Tyler and Dave and the water department for keeping the water flowing. Thanks to Sara Ott for being on top of the details. The City is working with CDOT to patch the pot holes until a permanent fix can be made. City crews are out 2 to 4 times a day repairing them. Trish Aragon, engineering, said we had a conversation today with CDOT and they are trying. While the weather is in these wet conditions we are limited as to what we can do. Until then we have to wait for the asphalt plants to open up. Most likely that won’t happen until April. Tyler Christoff, utilities, said we have crews out there 3 to 4 times a day doing temporary patching. The subgrade and weather conditions are not conducive to those lasting more than a few hours. We are looking at alternative materials to see if something might hold up better than what we are using CITY MANAGER COMMENTS Ms. Ott said tomorrow the work session schedule listed King Street drainage. It will be March 18th. Every 3 years we do a large pavement program. That will be this summer. There is $875,000 in the budget for repaving this year based on conditions. Linda Manning, city clerk, said the runoff election is April 2nd. The printer is currently printing the ballots. We hope to have them in the mail on Friday. In person voting will begin in the Clerk’s office on Monday. For any questions stop by the clerk’s office. BOARD REPORTS Mayor Skadron attended the CAST meeting in Denver. There was a keynote from the Governor. They heard a legislative update from Kevin Bommer with CML and an economic update from Brian Landowsky. There was a panel discussion on over crowing on trails and trail heads. CONSENT CALENDAR Reso #32 – AMI Mr. Christoff made council aware the total cost does not represent the total cost of the project. There will be an additional request in October to complete the radio network for the AMI. Councilwoman Mullins said this is the replacement of electric meters and AMI technology for water meters. Lee Ledesma, utilities replied correct. Councilwoman Mullins said there will be no gap in service. Ms. Ledesma replied correct. Councilwoman Mullins asked how will you contact the customers. Mr. Christoff replied individually. PR studio is on board to help with that. Ms. Ledesma stated we have a fact sheet and a website already. Councilwoman Mullins said the 1.6 includes the $200,000 grant from CORE. Ms. Ledesma replied yes. Councilman Frisch said this is a really big upgrade to our system. Mr. Christoff said it will create customer awareness about resource use both on water and electric. It will help them to make informed decisions. Reso #35 – MAA lease Councilwoman Mullins said this is to house music students in the summer. Who in the winter. Pete Strecker, finance replied Aspen Ski Co mostly. Councilwoman Mullins asked is it the same lease at Burlingame. What is the length of that lease. Mr. Strecker replied he is not sure on that lease. It is structured similarly in working with MAA in the summer and other employers in winter months. Councilwoman Mullins asked if it is a similar useful life of the property. Mr. Strecker replied that Burlingame should have a longer life. They are doing work out there now. Councilwoman Mullins asked how come we haven’t seen that lease. Mr. Strecker replied he is not sure the term of that lease. Regular Meeting Aspen City Council March 11, 2019 4 Reso #29 – Zamboni purchase Councilwoman Mullins said this is great. The Frank Zamboni company still manufactures these in California. Cory Vander Veen, recreation, said the same family still manufactures them. We have three machines and they are incredible. • Resolution #29, Series of 2019 – Contract for Replacement of electric Zamboni • Resolution #33, Series of 2019 – Contract with Publicis Sapient for Support of Salesforce/BasicGov • Resolution #32, Series of 2019 – Landis + Gyr Technology Inc contract for AMI project • Resolution #35, Series of 2019 –Music Associates of Aspen (MAA) Marolt Lease Councilman Frisch moved to adopt the consent calendar; seconded by Councilwoman Mullins. All in favor, motion carried. NOTICE OF CALL UP – Notice of HPC approval of Conceptual Major Development for 931 Gibson Avenue, HPC Resolution #2, Series of 2019 Sarah Yoon, community development, said this was approved September 17 thru ordinance 22 for relocation of two historic buildings. They were required to submit HP major development review. On February 27 HPC approved a proposal for major development with a 3 to 0 vote. The meeting was opened with 4 members, but one member had to recuse. There is an extensive restoration plan and reconfiguration of the historic buildings and a 30 foot connector. There are no dimensional variations. Four letters of support were submitted. All HPC members voiced strong support for the project. Staff recommends council uphold the HPC approval. Councilman Myrin asked if the sidewalks are detached or attached. Jessica Garrow, community development, replied they will be approved as part of the final design. The ordinance requires a sidewalk. Sara Adams, representing the owner, said it will comply with the master plan. Ms. Garrow said typically they are detached but it will be part of the final review. Conceptual focuses on massing. The ordinance approving the relocation specified a sidewalk. Councilman Myrin said watching the snow this past week it ends up on an attached sidewalk. It is a lot easier to walk on a detached sidewalk. Councilman Frisch said he will not ask for call up. The 30 foot connector, is it something we could see a lot of. Ms. Adams said the function of the connector is the kitchen. We are maintaining the original interior stair and second floor. Ms. Garrow said this is a unique lot in a lot of ways. We don’t expect to see 30 foot connectors much. Councilman Hauenstein asked is the original structure demolished or on site. Ms. Garrow said demolished. Councilman Hauenstein said he is concerned with the quorum. Jim True, city attorney, said we made a determination some years ago if a recusal requires someone to step out it does not defeat the quorum. In this case there were 4 people who initiated the meeting and were present. She could not participate in the meeting and had to step out of the room. We considered this as maintaining the quorum. There is still a requirement that 3 people vote in favor. Councilman Hauenstein said my concern is 3 individuals made a decision on this. I don’t want to call it up for that. Councilwoman Mullins moved to uphold HPC Resolution #2, Series of 2019; seconded by Councilman Frisch. All in favor, Motion carried. Regular Meeting Aspen City Council March 11, 2019 5 ORDINANCE #7, SERIES OF 2019 – Debt Issuance Approval for Funding Construction for New Administrative Offices Mr. Strecker said this will finance the new city offices with COPs. The existing Rio Grande and the renovation of the armory, neither are included in this financing. We don’t have cash for all three projects. There is some concern about delaying and going to a GO vote. Rates are about 3.78% for this type of package. It is a very good rate. COPs are a very common vehicles for issuing this type of dept. The City has done COPs for past debt, most recently for the police building. This ordinance has a set of parameters outlining allowance for the current market. The schedule on page 2 will need to be extended out further. We need a guaranteed max price first. It will be more like late May. Councilman Myrin asked is it a line of credit. Mr. Strecker replied we do a site lease and lease out the ground. We get paid up front for that. We take those dollars and pay back in annual instalments. We get the proceeds all up front in this case. Councilman Hauenstein said it is a lease to buy with a no buy out in the end. Mr. Strecker said we do take ownership of the building at the end of the payments. Councilman Hauenstein said he would like to explore further the possibility of financing a portion of this through the Wheeler fund. It would benefit the Wheeler fund paying a higher interest than they are receiving. Mayor Skadron said this has come up a number of times. Mr. Strecker said currently our policy restricts us from longer than a 10 year intra fund loan. It would make the pay back a lot higher on the general, stormwater, APCH and IT funds. It stresses the other funds that would have to make those payments. Councilman Hauenstein said you are saying there is a downside to borrowing from the Wheeler. Councilman Myrin said we are the ones who set the 10 year limit. We could change it to 30. I wouldn’t let the obstacle of the 10 year restriction get in the way. Councilman Hauenstein said if we did a 20 or 30 year payback and there was a benefit to the Wheeler and the city and COPs for the remainder. Mr. Strecker said I would need to talk to bond council to see if there is a limit where that deal becomes less attractive. Councilman Hauenstein said if there is support on council I would like that explored. Councilman Frisch said the Wheeler has 30 some million dollars that is earning some amount of money. We are about to obtain 30 million dollars. Is there a way where it is not an all or nothing situation where we can lower the cost to the community. Ward is asking and I’m asking. Ms. Ott said we will pull back out the memo from May and the minutes from October where you talked about COPs. Councilman Myrin said the timing for this and being able to draw on the Wheeler may make more sense. Ms. Ott said we are asking you is the market good today or is the market good when we need to do the armory. We feel it is good now. We will pull the info back out and get it to you as quickly as we can. The premise for the funding for this is all based on COPs. We’ve modeled it off of 30 years. Councilman Myrin said on the demolition and design work for 3.8 million, is that included in the construction renovation. Mr. Strecker replied the 30.6 million includes that as well. Mayor Skadron said we are at first reading now because council did our homework and this is our best option. It is a matter of prudent financing on behalf of the city. Councilwoman Mullins moved to read Ordinance #7, Series of 2019; seconded by Councilman Hauenstein. All in favor, Motion carried. ORDINANCE NO. 7 (SERIES OF 2019) AN ORDINANCE AUTHORIZING THE FINANCING OF CERTAIN PUBLIC IMPROVEMENTS OF THE CITY, AND IN CONNECTION THEREWITH AUTHORIZING THE LEASING OF CERTAIN CITY PROPERTY AND THE EXECUTION AND DELIVERY OF DOCUMENTS RELATED THERETO; SETTING FORTH CERTAIN PARAMETERS AND RESTRICTIONS WITH RESPECT TO THE FINANCING; AND PROVIDING OTHER MATTERS RELATED THERETO. Councilman Hauenstein moved to adopt Ordinance #7, Series of 2019 on first reading; seconded by Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Hauenstein, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. Regular Meeting Aspen City Council March 11, 2019 6 ORDINANCE #6, SERIES OF 2019 – Historic Preservation Benefits Code Amendments Amy Simon, community development, said we have been talking with council, HPC, public and steak holders for over a year. The city has 300 designated landmarks. We have had HP benefits since 1987. There have been very few changes in the last 32 years. We are very proud of our benefits but recognize updates are needed. HPC supports the amendments. Through outreach, survey and response was very positive. Historic properties are in cases allowed more units than other properties. Floor area is the most valuable benefit. We made it so smaller lots are eligible for less footage. We are suggesting amendments to GMQS, related to single family and duplex. No changes to commercial properties. Currently if someone were to add on to a home they get a break on affordable housing fees. $400,000 a year is being waived. One idea is accept that it is an important fee waiver. Another alternative is to remove it or cut the benefit in half. Another alternative is to replace it with a reduction in other permit fees. A different option is to replace this with expedited permitting. The ordinance is currently written that the affordable housing waiver stays in place for ASpenModern properties. We are also suggesting amendment to TDRs where council is given more discretion. Council has the chance with HPC recommendation to decide if it is a good idea or not. We are also suggesting the City no longer be a review body for state historic preservation income tax benefit. The reviews are becoming more and more complicated. The state ought to make these calls themselves. There are some new ideas in the ordinance. First is to do with TDRs. In MU, new single family homes would take a 20 % hit. A citizen suggested they could get it back in TDRs. There are a few projects with a sizable light well, like a donut hole, and we are suggesting that the floor area could be waived. Councilwoman Mullins asked about the $400,000 in affordable housing fees. Ms. Simon replied it is a 4 year average. Councilman Hauenstein asked does council want to continue waiving parking. His concern is with workhouse housing being waived. Ms. Simon said HPC has the authority to waive on site parking on residential properties. There is no fee waiver involved. It means someone will probably park on the street. For commercial they can waive the parking if there is a physical restriction. They can also waive the fee. Councilman Hauenstein said I applaud you on scaling the floor area bonuses. Is there a matrix that you can apply so it becomes less subjective. Ms. Simon said we tried to list specific examples. Councilman Hauenstein asked with a lot split, can they be condomonimized. Does the historic asset have to be attached. Ms. Simon said with a lot split one lot might have a single family house and one might have a duplex. They can be condomonimized. Councilman Frisch said he wanted to make sure we were not over stimulating the HP program. There are three things on the table; the size benefit, waiver benefit and time to process. I appreciate the outreach to developers. Affordable housing is the first thing we chuck out. I need some more certainty about the affordable housing waiver. It needs to be off the table or the last thing to go. What other pure monetary things can we do if we take affordable housing 100 percent off the table. Ms. Garrow said we’ve outlined some alternatives. One is do nothing. Two is do a 50% reduction. Third is off set it with a reduction in permit review fees. Fourth is remove the fee waiver and don’t replace it with a monetary waiver but replace it with expedited review. Councilman Frisch said I’m not looking to keep the monetary package what it is. I think the first question is are you trying to protect the same benefit package and rearrange it or lower it. Ms. Simon said we are interested in replacing the affordable housing fee waiver with another type of waiver. We’ve gotten feedback that suggests while the benefits are generous there is so much review time it is needed. Councilman Frisch said a year ago I talked about taking the affordable housing waiver away completely. I think we can give away less and have really high quality projects. Ms. Garrow said perhaps we can provide more detail as to what these waiver are. It is important to note that the changes we are making to the duplex incentive and the floor area bonus is really tightening up the program. I would characterize it as pulling back overall. Councilman Frisch said if we take the average sale price and the amt of effort we are putting in I want to make sure it is a meaningful thing. I’m not sure in a 10 million dollar expense $75,000 is going to change one iota of the quality of the project that is done. Regular Meeting Aspen City Council March 11, 2019 7 Councilman Hauenstein said option 4 is most attractive, nix the waivers and have a time bonus instead of a dollar bonus. It seems like the HPC bonuses are used as a development tool. How many projects are lived in by the current owners. Is it possible to have a time element to vest the benefits. If a party receives the benefits there is a timeframe on it. If they flip it the bonuses are due. Councilwoman Mullins said it should be a partnership between the city and developers to be stewards. We want to make sure each party is getting equal benefit out of it. At a minimum I think the affordable housing waiver should be gone. If we need that financial incentive it should be transferred some place else. I’m not sure the expedited permitting is appropriate. Councilman Myrin said it would be helpful to understand what was waived for the Lundy house. It is on the market for 29 Million. Right now we tell the sellers it doesn’t come out of their pockets. I support removing it from AspenModern as well. Mayor Skadron said he concurs with the general comments. The focus is Adam’s comment around understanding what the average incentive package is. It is too aggressive and generous now. Councilwoman Mullins moved to read Ordinance #6, Series of 2019; seconded by Councilman Frisch. All in favor, motion carried. ORDINANCE NO. 6 (SERIES OF 2019) AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING THE CITY OF ASPEN LAND USE CODE RELATED TO HISTORIC PRESERVATION BENEFITS Councilman Hauenstein moved to adopt Ordinance #6, Series of 2109 on first reading; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Hauenstein, yes; Frisch, yes; Myrin, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #5, SERIES OF 2019 – Wireless Regulation Amendments Ms. Garrow said the core team has been working on updating the wireless code. This is the third time in front of council. Why amend the code. There have been recent changes to state and federal rules. They go in to effect on April 14. This code will create the best service with the least negative impact to the community. Key aspects include compliance with state and federal rules, design requirements, height requirements, spacing and setbacks requirements and timeline. State and federal laws follow FCC guidelines. There are a number of new definitions. Defining wireless communication facilities. Example – requirements related to radio frequencies. Design requirements related to camouflaging and concealment. Colocation when possible. Architectural compatibility requirements as well as with natural environment and screening. It is treated very similar to mechanical equipment. There is language that limits the height of free standing facilities to 25 feet. It is below what other communities have adopted. The City is very unique. We have Ref 1 requirements. There are reductions in height in the CC. We have viewplane and 8040 greenline requirements. This may be something that we need to address once applications come in. There are some higher heights allowed via special review only if they can be effectively camouflaged. Most of our light poles are less than 20 feet, 17 to 18. Signal poles are 22 feet tall. Main and Galena has a signal pole at 30 feet. Spacing requirements are 100 foot for private property and 600 feet when in the right of way. Exempt when property is screened or for technical requirement. Setback requirements for private property are 50 foot from the property line and not permitted in a front yard. There are review timelines we have to comply with. Depending on the application they are 60 and 90 days. We have 10 days to determine if an application is complete. Regular construction rules that apply to the right of way. Andrea Bryan, assistant city attorney, said the new FCC rules are in effect now but we have until April 14 to adopt design guidelines. Regular Meeting Aspen City Council March 11, 2019 8 Councilwoman Mullins asked is anything we are proposing in contradiction with legislation that is in place now. Ms. Bryan stated we don’t believe so. Verizon is giving their opinion on that in a letter in the packet. Councilwoman Mullins said the other concern is the health issues. I would like it if we can continue to follow any type of research on that. Ms. Bryan said that is one area federal law is clear on we cannot prohibit based on. Brandon Dittman, wireless attorney, said the extent to which municipalities are permitted to regulate is that the applicant is compliant with all federal requirements. Mayor opened public comment. 1. Mellissa Regan, Sherman and Howard, council to Verizon wireless. Andrew Cole, Verizon, said they are thankful and grateful to Andrea and Jessica for working with us. They adopted a lot of the comments we proposed. There are two areas we want to address. Height limitation of 25 feet. Second is if there are variances for the height they will have to come before council as a special review. Council has limited discretion. We want to make sure you are aware on those limitations. Mr. Cole said small cells are lower power smaller facilities that tend to fill in gaps in capacity. Small cells add lanes for data driven tasks. On height, we realize you are balancing public policy, while it may be possible to deploy at 25 feet we don’t know how technically feasible it would be to deploy an entire city at 25 feet. It could deprioritize Aspen from a technical feasibility standpoint. Ms. Regan said lower height could mean more poles. For variance the code reads it would have to come to council as a special review. Under state law they are a permitted use by right. The review is narrowly prescribed. The shot clocks would put pressure on staff and council as well. Councilman Myrin said is the process under Ref 1 if something is above 25 feet it would go to voters. Mr. True said I don’t think it would be the case. We are talking about the right of way. We bring up Ref 1 about how sensitive the city is to heights. Councilman Hauenstein said they are low power, high band width and short range. Mr. Cole said either 4G or 5G. Low power in both. Shorter range in both. Higher band width only apply to 5G. Wireless is changing extremely rapidly. Councilman Hauenstein said are we going to be seeing a huge volume of applications. Ms. Garrow replied we have heard from all 4 major carriers. Right now, we already process applications, maybe 1 a month. Not sure it will dramatically increase. Mr. Dittman said applicants can submit applications in batches. Typically, you will see more come in at one time. Ms. Regan said often we will batch them together. Councilman Hauenstein asked how does Verizon feel about collocating. Mr. Cole said with another carrier at 25 feet it would be nearly impossible under the technology we use. It is not an interference on channels but on total height and how the equipment would need to be stacked. Councilman Hauenstein asked how tall a pole would you need to co locate. Mr. Cole said it depends on the sum total of the network, the neighborhood, where on the block and the topography. As we roll out 5G it will live with 4G for an extended period of time. Devices will connect to one or the other for an extended period of time. We would like to deploy multiple technologies on the same pole. Ms. Garrow said we tried to balance community character with federal and state requirements. We added language that says policy resolution is maintained. As we see the applications we can update the code if needed. We feel the code has an appropriate balance at this point. Brandon – you see different heights across the country. It is difficult to collocate. If you want to achieve more colocation more height is needed. Paul Schultz, IT, asked Mr. Cole about mobile versus fixed and what is proposed. Mr. Cole said he can’t speak to that right now. Ms. Regan said that is part of the ongoing discussion about what the plan for Aspen looks like. Mr. True aid we’ve talked a lot in Ref 1 about right of way issues. People could put things on top of buildings. Given federal shot clocks that can’t be addressed. I don’t know where it leads you if Ref 1 is kicked in. Most of the time it is right of way. You have federal preemption. The vote potentially comes mute. We were focusing on Ref 1 to point out the height sensitivity in this community. Regular Meeting Aspen City Council March 11, 2019 9 Councilman Hauenstein asked what have you done in other communities. Mr. Cole replied 5 communities deployed fixed wireless. Councilman Frisch said my reading is the lobbyists worked their way in DC and you can do what ever you want. I appreciate you are sincerely trying to work on this but your break in point is 25 feet and then some. I think we try to craft something simple and with enough pushback that gets them to try to think about it a little bit. Ms. Garrow said we tried to craft language that does that and has some special review and shows they need some higher height. We have money to do more detail design guidelines for the right of ways. This is the first step in a multi step process. Mayor Skadron closed the public comment. Mr. Dittman said there are many federal lawsuits over these regulations suing the FCC over these. That process is still ongoing. There will be updates to address these. The lawsuits don’t affect the shot clocks. Councilman Myrin asked are there things we could tighten up that we haven’t. Mr. Dittman said this is one of the more restrictive codes in Colorado. After this process there is a licensing process where you will create a licensing agreement where additional requirements will be flushed out. This is Aspen customized. There is a lot of language from the federal laws. Ms. Bryan said a lot of the language is from our prior code which was quite restrictive and comphrensive. Ms. Ott said we’ve been in close contact with our peers in the valley as well as Senator Bennet’s office talking about controls. Councilman Hauenstein moved to adopt Ordinance #5, Series of 2019; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Hauenstein, yes; Frisch, yes; Myrin, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. RESOLUTION #25, SERIES OF 2019 – Removal of the Statement of Exemption from the Definition of Subdivision for 729 W. Francis St. Phillip Supino, community development, said this will remove certain restrictions placed on the property from the definition of subdivision around 1978. It addressed housing issues related to subdivision. Council saw fit to place restrictions on the property related to affordable housing, including a 6 month minimum lease requirement and notice to sell to the tenant and first right of refusal. There is an administrative process to remove some of restrictions. It does not address the notice of intent to sell and right of first refusal requirements. Those requires council review and approval by resolution. The current standards in the code no longer valid. Between growth management and other code there is a more robust and enforceable system. Removing those requirements would not change future use of the property. This would clear title. Staff recommends approval. Joe Krabacher, representing the applicant, said the codes in effect in the 70s impose these requirements. At that time there was a big wave of condominumizations. It was common at the time for right of first refusal. The code was amended and these two provisions were in the old code. Minimal rental restrictions and first refusal. When the code was amended it talks about the rental restriction but not the first refusal. We are asking it be released. A lot that I see only have the rental restriction. Councilwoman Mullins moved to adopt Resolution #25, Series of 2019; seconded by Councilman Hauenstein. All in favor, motion carried. Regular Meeting Aspen City Council March 11, 2019 10 RESOLUTION #31, SERIES OF 2019 – Appeal of variance granted by Resolution #4, Series of 2018 by the Board of Adjustment Kevin Rayes, community development, said this was a front yard setback variance appeal for 431/433 W Hallam. The property is located in the R6 zone and currently contains a duplex. The owner is planning to redeveloped with a single family dwelling. The proposed design would require removal of several large spruce trees to meet the setbacks. Parks determined the trees cannot be removed. The applicant is requesting a variance from Comdev to move the house 5 feet forward to accommodate the trees. On August 23rd we received an application for a 5 foot front yard variance. On December 13th the Board of Adjustment, BOA, reviewed the application and approved it as Resolution 4, 2018. On December 27th we received an application from a neighbor appealing the decision. The appeal stated the BOA abused their discretion. For an appeal, there are three criteria for council to consider. The decision or determination shall not be reversed or modified unless denial of due process, exceeded its jurisdiction or abused discretion. Regarding due process, certain timeframes when appeals must be submitted and hearings submitted. The appellant submitted noticed via certified mail and everyone else via newspaper. We believe this was met. Relating to jurisdiction, the BOAs jurisdiction is defined in the land use code. It is to hear, review and approve variances. The BOA shall approve, approve with conditions or disapprove a development for variances the terms of this title. This is not in question. The appellant is questioning discretion. While the board needed to use its discretion, the question is whether they abused it. In approving the variance the board relied on several facts. The memo and exhibits as well as the application from the applicant. They also relied on the facts presented at the hearing by staff and applicant. They also considered public testimony heard during the hearing. The criteria for the board to consider was referenced as part of the presentations. Following the presentations, the board asked follow up questions regarding a design modification and constraints to the lot. The board ultimately approved the variance. While staff recommended denial, we believe the decision was made ethically. We recommend council uphold the Boards decision. Mr. True said emphasize under the standard of review the decision of council is based solely on the record of the body. In regard to the record there was a transcript that was attached. That is proposed to be withdrawn and replaced with an audio version of the proceeding. We would request you disregard anything from the transcript and reply on the remainder of the record. There are a great deal of people in the audience. This is not a public hearing but a public meeting. The record cannot be supplemented by testimony tonight. The attorneys for the owner prepared the transcript. I should have recognized it and questioned it. It was not prepared by us. The official transcript would have had to be done by the clerk. Pete Thomas, represent the appellant, said there has been a lot of talk about let’s keep Aspen Aspen. Let’s keep the west end the west end. How do we do that by holding people to the letter to the code. A variance should not be used as an escape valve for people to maximize their development. That is exactly why it was used in front of the BOA. Variances are considered by the courts to be granted sparingly. Variances erode the very fabric of the code. There needs to be a mighty reason to allow them. When is a variance proper. A dimensional variance is only permissible if 3 criteria are met. 1 – consistent with the code. 2- minimum variance necessary to make possible the reasonable use of the property. 3 – enforcement of the code would cause unnecessary hardship. An alternative design is available that does allow for a reasonable home and reasonable use of the property. BOA is free to disagree. We are not challenging the discretion of the board but the complete absence of the findings in the record. They didn’t do that. They didn’t even mention the code criteria. That puts you in an impossible situation. With respect to the second criteria where is the discussion in the minutes. They asked the applicant if they considered alternative designs and they said it doesn’t work. The shortcoming relates to the absence in the record and the inadequacies in findings. Chris Bendon, representing the owner, showed image of the home with the trees. We assumed the trees could be removed. They are very similar to other trees in the area. The City forester changed during this time and it became apparent that a removal permit would not be issued. We looked at design options and all had a hardship level of impact. He showed an image with the house footprint and trees to be removed and ones that needed to be preserved and ones not permitted to be removed. I’ve reviewed the minutes Regular Meeting Aspen City Council March 11, 2019 11 and feel they are an accurate representation. Due process is very clear. The BOA handled the process part in an admirable way. I think you should be proud of them. Regarding abuse of discretion, we think the BOA made a rational decision. They were presented with information and they made findings. The application, written summary, narrative and describing how the criteria is met. We provided a summary with mapping and pictures. Staff did the same thing. Losing 20 to 30 percent of floor area is catastrophic. The BOA questioned staff and the applicant on specifics related to the property and trees. We told them the neighbors to the east received a handful of variances including pushing the house closer to the street. They took written and verbal testimony. They heard responses to the testimony and asked us questions. The total deliberation was just under an hour. The record is very clear, They read, heard, listened and were told about the criteria. They discussed the criteria. All parties had ample opportunity to understand the application. The BOA facilitated a reasonable and rational discussion. They were inundated with how the application met up with the criteria. The resolution is referring to the criteria and body of evidence and the finding they made. At one point the BOA asked the city attorney, Andrea Bryan, if they were ready to advance to decision making. They were clear on 2 points, the effects of not receiving a variance would be catastrophic. Secondly, they were inundated on the criteria. It is clear in our mind the BOA did their job correctly. The process was spic and span. Calling their decision arbitrary is untrue. We ask that the council uphold the decision and make clear the BOA treated everyone with respect. Since the approval, we’ve had conversations with the neighbors. Independent of the approval we are working on how to make the mass and scale more appealing to the neighbors. Nancy would rather have neighbors that are happy. Nancy wants to build a house with the same floor area everyone else in the neighborhood has. Mr. Thomas said we are not saying they disrespected anyone. The applicant bombarded them with their information and staff presented them with information. The BOA never synthesized that information and articulated on the record how they meet these three facts. Mr. True said if Pete is questioning the validity of what Chis said I think you need to disregard that. I don’t think it is appropriate to open that. Mr. Thomas said we did respond to Chris and we offered to give them a variance and we were met with it’s all or nothing. Mr. True said those arguments have been made and I would direct council to what is in the packet. Ms. Garrow said the BOA is tasked with hearing variances along with variations. Variances relate to hardships where variations relate to design. They hear all variances related to setbacks. Mayor Skadron said Chris gave a list of elements that were presented to the board, is the BOA equipped to deal with this type of application. Ms. Garrow replied absolutely. They see applications like this throughout the year. Sometimes they vote against and sometimes for. Councilman Hauenstein said Pioneer Park owns a sliver along 4th Street. Mr. Bendon replied they have a carport and some other surface parking. As you turn down 4th it truncates our parcel. Councilman Hauenstein said what the BOA approved was to move the setback 5 feet closer to Hallam. Mr. Bendon replied correct, normally it is 10 feet. They changed it from 10 feet to five. The curb line extends quite a bit. What you see of the front yard is public right of way. Ms. Garrow said the discussion of setback on page 557, within the meeting minutes there is discussion of this question as to what is the setback. The BOA said it seems like the house is 30 feet back. Councilman Hauenstein said the perception is the house is farther back. The house to the east is closer than what the setback would bring this property. Mr. Bendon replied correct. Councilman Myrin said I’ve never been a fan of variances. Councilman Frisch said you are asking us to remand it back to the board rather than over turn. Mr. Thomas said we are saying there is no basis for you to make a decision one way or the other. Councilman Frisch said the 10 concerns about the lot, 9 seems to be well known. The FAR numbers are maximums not minimums. I’m confused by the thought process of the BOA and I’m supportive of what staff was Regular Meeting Aspen City Council March 11, 2019 12 trying to make in their original concerns. I think minimally there is some value in it going back to the BOA to try to flush that out a little bit. Councilwoman Mullins said I agree with staff’s original recommendation with some type of modified design. As I understand it we are to be looking at due process, jurisdiction or abuse of discretion. As I read the minutes we are ok on due process, jurisdiction is not an issue. Though the members of the BOA don’t cite title 26 verbatim they do discuss them. To me, though I don’t agree with what has been approved, I support the process. They performed their review the way they should and within the criteria. Councilman Hauenstein said I agree with Ann on this. I don’t like the idea of a variance. If we are supposed to rule on procedure only I’m not convinced the property doesn’t have the potential for a nice home without the setback. I’m torn on overturning BOA findings when the procedure has been met. Mr. True said this is not a hearing de novo that allows you to make your own decision. Mr. Thomas has suggested there is not sufficient evidence to support the decision. Mr. Bendon is suggesting there is. You have to determine there is sufficient evidence. The minutes are accurate and all of the exhibits are part of the record. Mayor Skadron said when I read the minutes, I see no evidence that the BOA applied the criteria of any kind to this decision. One of the comments discusses the balance between government and people. I’m concluding based particularly on the minutes they insufficiently applied the criteria. Mr. True said that is within your authority. You can remand it back to the BOA and ask them to have further proceedings. You can give them direction but don’t need to. You can reverse the decision and the variance will not be granted. These things are close calls. Councilman Myrin made a motion suggesting reversing the BOA Resolution #4. Councilman Frisch seconded. Mayor Skadron said do you think it should be remanded back. Councilman Hauenstein said I could support it being remanded back. Councilwoman Mullins said I think they did address the various issues. Mr. Bendon said often there are decisions where the boards are not reciting sections of the code. If that is what is necessary we are happy to go back to the BOA. Mayor Skadron said I don’t expect the BOA to become experts on land use code but I need something in the minutes. Councilman Frisch said it is not a black and white issue. I think there is a minimum sufficiency. I’m not sure how they came up with the decision they did. I would prefer to withdraw the motion and remand it back. Councilman Myrin said he is ok with that. Councilman Hauenstein moved to remand back to the BOA. Mr. True said we need that as a resolution. He suggested modifying one of the 31s to change to remand to BOA for further consideration of all the criteria set forth under the code. Councilman Frisch said he would like the BOA to focus on the staff recommendation and why they feel they did not meet those. Mr. True said I understand that, but I think you need to be able to allow new evidence. Councilman Frisch seconded the motion. Mr. true said the proposed motion is to accept new evidence. All in favor except Councilwoman Mullins. Motion carried. Linda Manning City Clerk