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HomeMy WebLinkAboutagenda.council.regular.201905201 AGENDA CITY COUNCIL REGULAR MEETING May 20, 2019 5:00 PM, City Council Chambers 130 S Galena Street, Aspen I.CALL TO ORDER II.ROLL CALL III.SCHEDULED PUBLIC APPEARANCES IV.CITIZENS COMMENTS & PETITIONS (Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please limit your comments to 3 minutes) V.SPECIAL ORDERS OF THE DAY a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's Comments d) Board Reports VI.CONSENT CALENDAR (These matters may be adopted together by a single motion) VI.A.Resolution No. 62, Series of 2019, Water Shortage Stage II VI.B.Resolution #61, Series of 2019 - Terminating the Management Service Agreement between the Red Brick Center for the Arts and City VI.C.Resolution #63, series of 2019 Castle Creek Trail IGA VI.D.Resolution #64, Series of 2019 - 488 Castle Creek easement with Holy Cross VI.E.Resolution #65, Series of 2019 - Wheeler Chiller Replacement VI.F.Minutes - May 13, 2019 VII.NOTICE OF CALL-UP VIII.FIRST READING OF ORDINANCES 1 2 IX.PUBLIC HEARINGS IX.A.Ordinance #14, Series of 2019 - Flavored Tobacco Ban IX.B.Ordinance 12, Series 2019. Land Use Code Amendments for APCHA Referrals. 2nd Reading (Public Hearing) IX.C.Ordinance #10, Series of 2019 - 119 Neale Avenue, Transferable Development Rights IX.D.Ordinance 13, Series of 2019 - Transportation and Parking Land Use Code Amendments X.ACTION ITEMS XI.LONG RANGE COUNCIL SCHEDULE XI.A.Long Range Council Schedule XII.ADJOURNMENT 2 Page 1 of 3 MEMORANDUM TO:Mayor and City Council FROM:Margaret Medellin, Utilities Portfolio Manager THRU:Scott Miller, Director of Public Works; Tyler Christoff, Deputy Public Works Director; Dave Hornbacher, Director of Utilities; DATE OF MEMO:May 10, 2019 MEETING DATE:May 20, 2019 RE:Water Shortage Conditions REQUEST OF COUNCIL: Council is requested to consider staff’s recommendation to rescind the existing water use restrictions and surcharges by adopting Resolution #62, Series of 2019 (See Attachment A). BACKGROUND: Last year at this time, Aspen was experiencing a critically dry year. In order to protect our watersheds and ensure reliable water deliveries, Council enacted its water shortage ordinance to encourage the community to use less water than in a normal year. The City is currently in Stage II Water Shortage conditions. At Council’s March 26, 2019 work session, staff presented the current status of Aspen’s watersheds. Council provided the following direction to staff about the 2019 drought response: Council supports the City being cautiously optimistic in the approach to drought declaration for the 2019 irrigation season; Council supports staying in step with the State’s drought declaration and monitoring timeline; Council discussed that some of the restrictions stated under the current drought stage descriptions in the municipal code should be practices that are encouraged regardless of drought conditions. Staff provided an update at the April 22, 2019 Council meeting, and Council directed staff to continue to monitor watershed conditions and return in May with a recommendation for further actions. DISCUSSION: Conditions in our watersheds continue to look favorable. The cool, wet spring has helped to maintain snowpack and we anticipate above average runoff. 3 Page 2 of 3 Drought Conditions Snow Water Equivalents currently measure 146% of average at the Independence Pass SNOTEL Site (See Attachment B). It is anticipated that runoff will increase in the next week as temperatures rise. The U.S. Drought Monitor currently shows no drought conditions in Pitkin County. In addition, the entire State shows drastically improved conditions from this time last year, with only a band of ‘abnormally dry’ conditions in the south-central portion of the state (See Attachment C). The Colorado Basin River Forecast Center predicts that flow in the Roaring Fork this runoff season will be between 110-130% of average. Drought Response On May 6, 2019 the State Drought Task Force met to discuss the 2019 drought response. After reviewing snowpack and other watershed conditions, the Task Force recommended deactivation of the drought response for the entire state. This recommendation will be presented to the Governor in the next few days. In consideration of the favorable local watershed conditions and the findings of the State Drought Task Force, Aspen’s Drought Task Force (ADTF) recommends that Council remove all water use restrictions and surcharges. The ADTF will continue to meet throughout the summer to incorporate ‘Lessons Learned’ into Aspen’s drought response and provide recommendations for updating Aspen’s Water Shortage Ordinance. In addition, the ADTF will provide recommendations for incorporating additional responsible water use measures into the City’s existing Water Waste Ordinance. FINANCIAL/BUDGET IMPACTS: Impacts of rescinding the Stage II water surcharges are included within the current 2019 budget authority. ENVIRONMENTAL IMPACTS: The City’s efforts to monitor its watersheds and enact its water shortage ordinance is necessary to ensure the City’s resiliency. RECOMMENDED ACTION: Council is requested to adopt Resolution #62, Series of 2019, thereby rescinding the water shortage conditions and removing all water restrictions and surcharges. ALTERNATIVES:If Council chooses not to support this resolution, Stage II water restrictions and surcharges will remain in effect. PROPOSED MOTION:I move to approve Resolution #62, Series of 2019. 4 Page 3 of 3 CITY MANAGER COMMENTS: ATTACHMENTS: Attachment A – Resolution #62, Series of 2019 Attachment B – Independence Pass SNOTEL site 5-7-2019 Attachment C – US Drought Monitor Map of Colorado 5 RESOLUTION # 62 (Series of 2019) A RESOLUTION DECLARING THAT WATER SHORTAGE CONDITIONS ARE NO LONGER EVIDENT IN ASPEN, COLORADO, AND RESCINDING WATER USE CONTROLS PUT INTO EFFECT BY RESOLUTION NUMBER 117, SERIES OF 2018. WHEREAS, Pitkin County is no longer experiencing drought conditions as determined by the U.S. Drought Monitor; and WHEREAS, peak snowpack in the Colorado River Basin is 128% of average; and WHEREAS, the Colorado Basin River Forecast Center forecasts that water supply in the Roaring Fork Watershed this runoff season will be between 110- 130% of average; and WHEREAS, the City of Aspen has established procedures to guard against potential shortages in its water supplies pursuant to Municipal Code Section 25.28.020; and WHEREAS, the City of Aspen recognizes the actions of its citizens in both mandatory water use restrictions and increased water use rates during the recent water shortage; and WHEREAS, improved watershed conditions no longer meet the criteria for water shortage set forth in the City of Aspen’s Municipal Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby declares that water shortage conditions are no longer evident in the City of Aspen, Colorado. It is further resolved by the City Council that the temporary water rates contained in Section 25.28.40 of the Municipal Code and water restrictions are hereby rescinded. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 20th day of May 2019. 6 Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 20, 2019. Linda Manning, City Clerk 7 8 9 MEMORANDUM TO: Mayor and City Council FROM: Sarah Roy, Director of Red Brick Center for the Arts THROUGH: Jim Ture, City Attorney Jeff Woods, Manager of the Parks and Recreation Department MEETING DATE: May 20, 2019 RE: Resolution #61, Series 2019 REQUEST OF COUNCIL: To terminate the management service agreement between the operating entity known as Red Brick Center for the Arts (Red Brick Center) and the City of Aspen for management of the Red Brick Arts Center facility. PREVIOUS COUNCIL ACTION: On November 13th, 2017 through Resolution 155, the City of Aspen suspended management services for the Red Brick Arts building outlined in its agreement (Resolution 131-2015) with the Red Brick Center. In a work session on January 9th, 2018, Council approved ongoing budget authority to manage the facility and oversee the operations and long-term capital improvements for the Red Brick Arts Center. In a work session on August 20, 2018 Council approved to make Red Brick Arts Center a permanent department within the Parks and Recreation Department with ongoing budget funding. BACKGROUND: The Red Brick Arts Center provides reduced market pricing for many Aspen nonprofit organizations to house their office functions. Further the Center provides creative space for artists, arts programming, performing art space and meeting room space. The City is the owner of the building and hired the Red Brick Center to provide building management services for tenants in exchange for 15% of rent revenues. Following Resolution 155-2017, the City took over direct management of the facility and arts programming. City staff moved all financial operations into City systems and began a thorough assessment of the facility’s maintenance and capital needs. In addition, staff worked closely with Red Brick tenants and patrons to understand the role of the Red Brick within our community. The sentiments heard is the Red Brick Arts Center is a beloved community treasure that offers unique opportunities for engagement and learning. Upon creating the Red Brick Arts Center as a permanent department, Council upheld the intent to be a vibrant community center offering affordable rent to nonprofits and artists and creating venues and offerings for artistic engagement. 10 DISCUSSION: As Council approved to make the Red Brick Arts Center a department within Parks and Recreation, the Management Agreement and The Amended Agreement, which suspended parts of the management agreement with the Red Brick Center are no longer needed. As a department within the City, the Red Brick is on an exciting trajectory to continue to serve the needs and wants of the community and promote City values. FINANCIAL/BUDGET IMPACTS: The approved 2019 Budget includes a total operating budget of $529,320 with offsetting revenues totaling $448,260. This requires a $81,060 subsidy from the General Fund and result in an 85% recovery rate. PROPOSED MOTION: I move to approve Resolution #61 CITY MANAGER COMMENTS: ATTACHMENTS: A- Resolution #61, Series of 2019 11 RESOLUTION # 61 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A TERMINATION OF MANAGEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND RED BRICK COUNCIL FOR THE ARTS D/B/A RED BRICK CENTER FOR THE ARTS AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Termination of Management Agreement between the City of Aspen and Red Brick Council for the Arts d/b/a Red Brick Center for the Arts, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that a Termination of Management Agreement between the City of Aspen and Red Brick Council for the Arts d/b/a Red Brick Center for the Arts, a copy of which is annexed hereto and incorporated herein and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 20 th day of May 2019. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 20, 2019. Linda Manning, City Clerk 12 TERMINATIONOFMANAGEMENT AGREEMENT THIS TERMINATION OF THE MANAGEMENT AGREEMENT is made and entered into as of this ____ day of May 2019, between City of Aspen (hereinafter referred to as "City"), and the Red Brick Council for the Arts d/b/a Red Brick Center for the Arts (hereinafter referred to as "Red Brick Center"). W I T N E S S E T H: WHEREAS, on or about November 9, 2015, the parties entered into a Management Agreement for the property owned by the City known as the Red Brick Center for the Arts; and, WHEREAS, due events occurring in 2017, the parties entered into an Amended Agreement on or about November 17, 2017, which suspended certain aspects of the Management Agreement; and, WHEREAS, the City has recently completed a transition of operation of the facility as a department within Parks and Recreation; thus, the parties agree that neither the Management Agreement nor the interim changes entered in 2017 are needed for the future manager and operation of the property and that it is in the best interest of all parties to terminate the Manager Agreement. NOW, THERFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. The Management Agreement dated November 9, 2015, and the Amendment to Management Agreement dated November 17, 2017, are hereby terminated in their entirety. Both parties waive any claims or causes of action either may have against the other for any matter arising out of either agreement. 2. The City Council has approved the terms of this Agreement and it shall be effective immediately upon execution of the Agreement by the parties. 3. The signatory for the Red Brick Center below acknowledges that she has authority to execute this agreement. IN WITNESS WHEREOF, the City and Red Brick Center have executed this Agreement on the day and year first above written. City of Aspen Red Brick Council for the Arts d/b/a Red Brick Center for the Arts ____________________________ _____________________________ Sara Ott, City Manager Date Jackie Kasabach, President Date 13 1 MEMORANDUM TO:Mayor and City Council FROM:Brian Long, Trails Field Supervisor THRU:Jeff Woods, Parks and Recreation Manager Austin Weiss, Parks and Open Space Director DATE OF MEMO:May 13, 2019 MEETING DATE:May 20, 2019 RE:Castle Creek Trail CC: REQUEST OF COUNCIL: City of Aspen Parks Department and Pitkin County Open Space and Trails staff have been working on planning a trail connection and other safety improvements along the Castle Creek Road corridor from the Music/Aspen Country Day Schools to the Marolt Trail. Staff is seeking City Council approval of an intergovernmental agreement (IGA) ratifying the City’s financial commitment to the project. PREVIOUS COUNCIL ACTION: Staff met with City Council in a Work Session on February 6, 2018 to discuss the public scoping for the project and preliminary designs of the trail. City Council reviewed and approved the 2017 City of Aspen budget which included a request for $25,000 for planning, the 2018 budget which included a request for $100,000 for the design phase of the Castle Creek Trail and a request for $750,000 in 2019 for the construction of the City’s portion of the Castle Creek Trail. Staff met again with City Council at a work session on October 30, 2018 to review design considerations and Council confirmed support moving forward. BACKGROUND: At a joint meeting between the County and City Open Space Boards in September 2016, the Castle Creek Trail was prioritized for planning in 2017 due to numerous requests from the community. The Castle Creek Trail planning began on July 24, 2017. Staff held numerous outreach meetings with the public, neighbors, the Aspen Music Festival and School and Aspen Country Day School. All public comments were included in the Open Space Boards’ packet and are still available online. The consulting engineers took all the public feedback and analyzed the corridor for what is feasible. 14 2 At a joint open space and trails board meeting on February 1 st, 2018, a recommendation was made to design a modified east-side alignment to reduce widths and impacts where possible, but still provide a significantly safer trail with increased width on the climbing shoulder for road cyclists. The BOCC and City Council agreed with that direction and staff worked with our consultants to update the plans. A modified east-side alignment significantly reduces the original cost estimate of $3.8 million, limits the impacts to aesthetics and vegetation, and provides a much safer corridor for pedestrians and bicyclists. At the third joint meeting between the Pitkin County and City of Aspen Open Space and Trails Boards on August 2, 2018 the boards discussed the modified east side alignment and recommended the BOCC and City Council include this project into the 2019 budget. The BOCC reviewed this latest design at a September 25 th, 2018 work session and gave unanimous support for the project. City Council reviewed the project at an October 30th, 2018 work session and gave its consideration and support. DISCUSSION: The Castle Creek Trail project has progressed thus far with valuable public input and thorough consideration by the City and County Open Space Boards and elected bodies. Management of the project by Pitkin County has been careful to include all stakeholders in the process, presenting alternatives and making all aware of challenges along the way. A contract for the construction of the trail has been awarded to Gould Construction, whom staff recently worked with on the Castle Creek Bridge project. The IGA before Council commits the City to a contribution to the project reflective of the cost required to complete improvements in the portion that is within City limits, not to exceed $875,000. This cost will include design and construction elements yet to be quantified, but is estimated at $700,000. The latest project design of the corridor incorporates public and board feedback to reduce impacts throughout the length of the project, while maintaining significant safety improvements for all users. The project will construct a trail on the east side of Castle Creek Road, create a wider shoulder along the west side to create a safer corridor for road cyclists and provide safety improvements to Castle Creek Road by slowing motorized vehicular traffic. The design includes a 6-foot-wide, east-side trail that will be separated from the road with removable delineators and a 3 to 4 foot shoulder on the uphill vehicular travel lane to improve safety for road cyclists. Staff will work with the contractor to maximize the width of this shoulder yet maintain a consistent width through the corridor. Most of the required retaining walls will be located on the west side of the road, with the exception of that portion of the trail which runs in front of the proposed affordable housing at 488 Castle Creek Road. A wall will be required through this portion to both separate the trail from the proposed parking lot, and to allow enough space to plant trees and other vegetative screening between the housing and the trail. The project also incorporates speed tables before and after the school entrance with increased signage along the entire length of the trail in order to slow traffic through the corridor. 15 3 These modifications to the original design alternatives have reduced the estimated cost of the overall project from $3,800,000, to under $3,000,000. The City portion of the project is estimated at $700,000 and the County’s is $2,300,000. The modified East Side alternative will also significantly reduce impacts to the aesthetics and vegetation of the corridor while providing a much safer corridor for pedestrians, bicyclists and motor vehicles. FINANCIAL IMPLICATIONS: If City Council approves the IGA, the City will contribute to the Castle Creek Trail project in an amount that compensates for its share of design and for construction of the portion of the trail within City limits, total not to exceed $875,000. Staff will work with the County to ensure completion of the project. The Parks Department has previously contributed $125,000 toward planning and design and the 2019 budget has $750,000 for its share of the remaining design and build work. RECOMMENDED ACTION: Staff recommends that City Council approve the intergovernmental agreement with Pitkin County to formalize its commitment to the Castle Creek Trail project. ALTERNATIVES: City Council could choose not to approve the IGA with the County. Without this agreement in place Pitkin County may be forced to cancel contracts for the design and construction of the trail. This direction could delay any significant safety improvements for the corridor. ATTACHMENTS: A – Intergovernmental Agreement with Pitkin County B - Resolution 16 RESOLUTION #63 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ASPEN AND THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY REGARDING THE DESIGN AND CONSTRUCTION OF THE CASTLE CREEK TRAIL. WHEREAS, there has been submitted to the City Council an intergovernmental agreement for the design and construction of the Castle Creek Trail between the City of Aspen and the Board of County Commissioners of Pitkin County, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the intergovernmental agreement for the design and construction of the Castle Creek Trail between the City of Aspen and the Board of County Commissioners of Pitkin County, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 20 th day of May 2019. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held May 20, 2019. Linda Manning, City Clerk 17 INTERGOVERNMENTAL AGREEMENT CREEK TRAIL FINAL DESIGN AND CONSTRUCTION THIS INTERGOVERNMENTAL AGREEMENT (the "Agreement") is made this ______ day of ______________, 2019 by and between the Board of County Commissioners of Pitkin County, Colorado, whose address is 530 East Main Street, Suite 302, Aspen, Colorado 81611 ("County") and the City of Aspen ("City"), whose address is 130 South Galena Street, Aspen, Colorado 81611. The County and City are sometimes collectively referred to as the “Governments.” RECITALS 1.This Agreement is entered into pursuant to, inter alia, C.R.S. §29-1-201, et seq. and Article XIV, Section 18 of the Colorado Constitution. 2.The Governments are duly constituted governmental entities, governed by Boards or Councils elected by qualified electors of the County and City mentioned above, both of which are located in Colorado. 3.The purpose of this Agreement is to set forth the respective responsibilities and obligations of the Governments relating to the funding of the final design and construction of the Castle Creek Trail. 4.The County has duly authorized expenditures of $1,843,000 and the City has duly authorized expenditures of $875,000 from their respective parks and open space funds. 5.The Governments are authorized to enter into this Agreement, and have determined it is in the best interests of the citizens of Pitkin County and the City of Aspen to enter into this Agreement. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual promises and agreements of the parties and other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the parties agree as follows: 1.The County shall manage the project and the contracts for the design and construction of the Castle Creek Trail. The City shall reimburse the County for the cost of the portion of the trail within City limits, total not to exceed $875,000. 18 2 2.The Governments agree to work cooperatively together after project completion to develop a maintenance and snow removal plan for the trail and adjacent roadway. 3.Assignability. This agreement is not assignable by either party. 4.Modification. This Agreement may be changed or modified only in writing by an agreement approved by the respective Boards of the Governments and signed by authorized officers of each party. 5.Entire Agreement. This Agreement constitutes the entire Agreement between the parties and all other promises and agreements relating to the subject of this Agreement, whether oral or written, are merged herein. 6.Severability. Should any one or more sections or provisions of this Agreement be judicially adjudged invalid or unenforceable, such judgment shall not affect, impair, or invalidate the remaining provisions of this Agreement, the intention being that the various sections and provisions hereof are severable. 7.Termination Prior to Expiration of Term. Any party has the right to terminate or withdraw from this Agreement, with or without cause, by giving written notice to the other party of such termination and specifying the effective date thereof. Such notice shall be given at least ten (10) days before the effective date of such termination. Termination of the Agreement relieves the cancelling or withdrawing party of any further responsibility under this Agreement except for specifically identified obligations of a continuing nature based upon pass performance under the Agreement. 6. Notice. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2) registered or certified mail, postage pre-paid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. To: Pitkin County With copies to: Pitkin County Board of County Commissioners Pitkin County Attorney’s Office c/o Pitkin County Open Space and Trails Director 530 E. Main St. Suite 301 530 East Main Street, Suite 204 Aspen, CO 81611 Aspen, Colorado 81611 attorney@pitkincounty.com Gary.Tennenbaum@pitkincounty.com 19 3 TO: City of Aspen With copies to: City of Aspen City Attorney c/o Parks and Open Space Director 130 S. Galena St. 130 South Galena Street Aspen, CO 81611 Aspen, Colorado 81611 jim.true@cityofaspen.com austin.weiss@cityofaspen.com 7.Government Immunity. The parties agree and understand that both parties are relying on and do not waive, by any provisions of this Agreement, the monetary limitations or terms or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq., as from time to time amended or otherwise available to the parties or any of their officers, agents, or employees. 8.Current Year Obligations. The parties acknowledge and agree that any payments provided for hereunder or requirements for future appropriations shall constitute only currently budgeted expenditures of the parties. The parties’ obligations under this Agreement are subject to each individual party’s annual right to budget and appropriate the sums necessary to provide the services set forth herein. No provision of this Agreement shall be construed or interpreted as creating a multiple fiscal year direct or indirect debt or other financial obligation of either or both parties within the meaning of any constitutional or statutory debt limitation. This Agreement shall not be construed to pledge or create a lien on any class or source of either parties’ bonds or any obligations payable from any class or source of each individual party’s money. 9.Binding Rights and Obligations. The rights and obligations of the parties under this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 10.Agreement made in Colorado.This Agreement shall be construed according to the laws of the State of Colorado, and venue for any action shall be in the District Court in and for Pitkin County, Colorado. 11.Attorney Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the substantially prevailing party, whether by final judgment or out of court settlement, shall recover from the other party all costs and expenses of such action or suit including reasonable attorney fees. 12. No Waiver. The waiver by any party to this Agreement of any term or condition of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 13. Authority. Each person signing this Agreement represents and warrants that said person is fully authorized to enter into and execute this Agreement and to bind the party it represents to the terms and conditions hereof. 20 4 14.This Agreement may be executed in counterparts, the sum of which shall constitute the whole of this Agreement. BOARD OF COUNTY COMMISSIONERS,ATTEST: PITKIN COUNTY, COLORADO By:______________________________________________________________ Greg Poschman, Chair Jeanette Jones, Deputy Clerk ___________________________________ ______________________________ John Ely, County Attorney Jon Peacock, County Manager CITY OF ASPEN ATTEST: By:_____________________________________________________________ Steven Skadron, Mayor Linda Manning, City Clerk __________________________________ ______________________________ James R. True, City Attorney Sara Ott, City Manager 21 Page 1 of 1 MEMORANDUM TO:Mayor and City Council FROM:Chris Everson, Affordable Housing Project Manager THRU:Jim True, City Attorney DATE OF MEMO:May 16, 2019 MEETING DATE:May 20, 2019 RE:Resolution #64 (Series of 2019) Holy Cross Easement at Marolt REQUEST OF COUNCIL:Staff is requesting approval of the attached Holy Cross electrical easements and a Trench, Conduit, and Vault Agreement at or over the City property at Marolt and at 488 Castle Creek Road for the construction of the housing development at 488 Castle Creek Road. PREVIOUS COUNCIL ACTION:The City has approved the construction of a housing project at 488 Castle Creek Road and this action is in furtherance of that project. DISCUSSION:The City of Aspen’s housing development partner, Aspen Housing Partners –who are developing affordable housing at the City-owned property located at 488 Castle Creek Road, received a letter last year from Holy Cross electric which stated that the electric feed for the facilities to be built at the site was available from an existing transformer on the Marolt property. It turns out that the existing transformer does need to be modified by Holy Cross, and there is no existing Holy Cross easement on the ground under the existing transformer. These types of agreements are standard for projects such as this and it is unknown why previous agreements or easements have not been entered. The attached agreements would put appropriate easements and agreements in place for existing infrastructure and for new service to and for the affordable housing development and is necessary for the current work to move forward. In addition, Holy Cross Energy requires the signature of the Mayor of the City of Aspen in order to put the agreements in place, hence this requires Council direction and authorization for the Mayor to sign. FINANCIAL/BUDGET IMPACTS:n/a RECOMMENDED ACTION:Staff recommends that Council approve the attached resolution. ATTACHMENTS: 1.Resolution #64 (Series of 2019) 2.Holy Cross Easements 3.Trench, Conduit, and Vault Agreement 22 RESOLUTION #64 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A TRENCH, CONDUIT, AND VAULT AGREEMENT AND TWO SEPARATE EASEMENTS BETWEEN THE CITY OF ASPEN AND HOLY CROSS ENERGY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there have been submitted to the City Council a Trench, Conduit, and Vault Agreement, and two separate Easements across properties owned by the City between the City of Aspen and Holy Cross Energy, true and accurate copies of which are attached hereto as Exhibits “A”, “B” and “C”. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Trench, Conduit, and Vault Agreement, and two separate Easements across properties owned by the City between the City of Aspen and Holy Cross Energy, copies of which are annexed hereto and incorporated herein, and does hereby authorize the Mayor of the City of Aspen to execute said agreements on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 20 th day of May 2019. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, May 20, 2019. Linda Manning, City Clerk 23 HOLY CROSS ENERGY UNDERGROUND RIGHT-OF-WAY EASEMENT KNOW ALL MEN BY THESE PRESENTS, that the undersigned, CITY OF ASPEN, COLORADO (hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby grant unto Holy Cross Energy, a Colorado corporation whose post office address is P. O. Box 2150, Glenwood Springs, Colorado (hereinafter called "Grantee") and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in the County of Pitkin, State of Colorado, described as follows: A parcel of land situate in Sections 12 & 13, Township 10 South, Range 85 West of the 6th P.M., as more fully described at Plat Book 122, Pages 91-107 in the records of the Pitkin County Clerk and Recorder’s Office, Aspen, Colorado. And, to construct, reconstruct, repair, change, enlarge, re-phase, operate, and maintain an underground electric transmission or distribution line, or both, with the underground vaults, conduit, fixtures and equipment used or useable in connection therewith, together with associated equipment required above ground, within the above mentioned lands, upon an easement described as follows: An easement ten (10) feet in width, the centerline for said easement being an underground power line as constructed, the approximate location of which upon the above described property is shown on Exhibit A attached hereto and made a part hereof by reference. The rights herein granted specifically allow Grantee to install additional underground and/or pad-mounted facilities within the easement described herein. It shall be the Grantor’s responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on said real property are accessible by Grantee’s boom trucks and other necessary equipment and personnel at all times. The use of such access by Grantee shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-opening sides and backs of said transformers and switchgear. Grantor hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations which may occur as soon as notified by Grantee. Said corrections will be made at the sole cost and expense of Grantor. Together with the right to remove any and all trees, brush, vegetation and obstructions within said easement and the right to pile spoils outside said easement during construction and maintenance, when such is reasonably necessary for the implementation and use of the rights hereinabove granted. In areas where vegetation is disturbed by the above described use of the easement, the ground surface shall be seeded using a standard native mix by Grantee. Grantor agrees that landscaping or other surface improvements added on said easement after the date of execution hereof will be minimized and that Grantee will not be responsible for damage to said additional landscaping or surface improvements caused by exercise of its rights granted by this easement. Grantor agrees that all facilities installed by Grantee on the above described lands, shall remain the property of Grantee, and shall be removable at the option of Grantee. Grantor covenants that they are the owner of the above described lands and that the said lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: All those of Record. W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 1 of 2 Revised 12/18/15 24 TO HAVE AND TO HOLD, said right-of-way and easement, together with all and singular, the rights and privileges appertaining thereto, unto Grantee, its successors and assigns, forever. IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of , 20 . The individual signing this Holy Cross Energy Underground Right-of-Way Easement hereby represents that he has full power and authority to sign, execute, and deliver this instrument. CITY OF ASPEN, COLORADO By: Steven Skadron as Mayor STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by Steven Skadron as Mayor of CITY OF ASPEN, COLORADO . WITNESS my hand and official seal. My commission expires: Notary Public Address:   W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 2 of 2 Revised 12/18/15   25 26 HOLY CROSS ENERGY UNDERGROUND RIGHT-OF-WAY EASEMENT KNOW ALL MEN BY THESE PRESENTS, that the undersigned, CITY OF ASPEN, COLORADO (hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby grant unto Holy Cross Energy, a Colorado corporation whose post office address is P. O. Box 2150, Glenwood Springs, Colorado (hereinafter called "Grantee") and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in the County of Pitkin, State of Colorado, described as follows: Lot 3, Marolt Ranch Subdivision situate in Sections 12 & 13, Township 10 South, Range 85 West of the 6th P.M.,as more fully described at Plat Book 33, Pages 51-55 in the records of the Pitkin County Clerk and Recorder’s Office, Aspen, Colorado. And, to construct, reconstruct, repair, change, enlarge, re-phase, operate, and maintain an underground electric transmission or distribution line, or both, with the underground vaults, conduit, fixtures and equipment used or useable in connection therewith, together with associated equipment required above ground, within the above mentioned lands, upon an easement described as follows: An easement ten (10) feet in width, the centerline for said easement being an underground power line as constructed, the approximate location of which upon the above described property is shown on Exhibit A attached hereto and made a part hereof by reference. The rights herein granted specifically allow Grantee to install additional underground and/or pad-mounted facilities within the easement described herein. It shall be the Grantor’s responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on said real property are accessible by Grantee’s boom trucks and other necessary equipment and personnel at all times. The use of such access by Grantee shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-opening sides and backs of said transformers and switchgear. Grantor hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations which may occur as soon as notified by Grantee. Said corrections will be made at the sole cost and expense of Grantor. Together with the right to remove any and all trees, brush, vegetation and obstructions within said easement and the right to pile spoils outside said easement during construction and maintenance, when such is reasonably necessary for the implementation and use of the rights hereinabove granted. In areas where vegetation is disturbed by the above described use of the easement, the ground surface shall be seeded using a standard native mix by Grantee. Grantor agrees that landscaping or other surface improvements added on said easement after the date of execution hereof will be minimized and that Grantee will not be responsible for damage to said additional landscaping or surface improvements caused by exercise of its rights granted by this easement. Grantor agrees that all facilities installed by Grantee on the above described lands, shall remain the property of Grantee, and shall be removable at the option of Grantee. Grantor covenants that they are the owner of the above described lands and that the said lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: All those of Record. W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 1 of 2 Revised 12/18/15 27 TO HAVE AND TO HOLD, said right-of-way and easement, together with all and singular, the rights and privileges appertaining thereto, unto Grantee, its successors and assigns, forever. IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of , 20 . The individual signing this Holy Cross Energy Underground Right-of-Way Easement hereby represents that he has full power and authority to sign, execute, and deliver this instrument. CITY OF ASPEN, COLORADO By: Steven Skadron as Mayor STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by Steven Skadron as Mayor of CITY OF ASPEN, COLORADO . WITNESS my hand and official seal. My commission expires: Notary Public Address:   W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 2 of 2 Revised 12/18/15   28 29 TRENCH, CONDUIT, AND VAULT AGREEMENT This agreement is made and entered into this day of , 20 , between CITY OF ASPEN, COLORADO, whose mailing address is 130 S. Galena Street, Aspen, CO 81611, hereinafter called "Owner", and Holy Cross Energy, a Colorado corporation whose mailing address is P. O. Box 2150, Glenwood Springs, Colorado 81602, hereafter called "Holy Cross". WHEREAS, Holy Cross has been requested by Owner to provide underground electric facilities, hereinafter called “Facilities”, to serve a project known as Castle Creek Rd 488, hereinafter called “Project”; and, WHEREAS, Owner is required to provide all excavation, conduit and vault installation, backfill, compaction and cleanup needed to construct said requested Facilities; and, WHEREAS, Owner owns real property described as follows: A parcel of land situate in Sections 12 & 13, Township 10 South, Range 85 West of the 6th P.M., as more fully described at Plat Book 122, Pages 91-107 in the records of the Pitkin County Clerk and Recorder’s Office, Aspen, Colorado, hereinafter called “Property”, which Property is the real property where the Project is being developed; and, WHEREAS, installation of Facilities to serve the Project may require trenching or other excavation on certain real property adjacent to the Project described as follows: Lot 3, Marolt Ranch Subdivision situate in Sections 12 & 13, Township 10 South, Range 85 West of the 6th P.M., as more fully described at Plat Book 33, Pages 51-55 in the records of the Pitkin County Clerk and Recorder’s Office, Aspen, Colorado, hereinafter called “Adjacent Land”. NOW, THEREFORE, Owner and Holy Cross agree as follows: 1. Owner shall provide all excavation, conduit and vault installation, backfill, compaction and cleanup necessary for installation of Facilities to serve the Project. Such excavation shall be located as shown on the construction plans approved by Holy Cross, and performed in accordance with Holy Cross Vault Installation Specifications, Construction Specifications and inspector requirements. Any deviation from the approved construction plans will not be made unless approved by Holy Cross in advance. All Facilities installed hereunder shall be inspected during construction by Holy Cross and shall meet all Holy Cross requirements prior to acceptance of such Facilities by Holy Cross. a. Prior to commencement of any work hereunder, Holy Cross shall furnish to Owner its Vault Installation Specifications and Construction Specifications and such specifications are made a part hereof by reference. b. All Facilities installed within the Property and Adjacent Land shall be within dedicated or conveyed and recorded utility easements. c. The top of all conduits installed hereunder shall be located a minimum of 48” below the final grade of the ground surface. d. A twelve-inch (12”) minimum separation will be maintained between conduits installed for the Facilities and all other new or existing underground utilities. Wherever possible, this separation will be horizontal. The Facilities conduit separation from plastic gas lines shall be greater than this minimum wherever practicable. e. Holy Cross will supply the necessary conduit and vaults for installation by the Owner upon completion of contractual arrangements. Owner assumes responsibility for all material lost or damaged after such material has been issued to and signed for by Owner or by an agent of Owner. Alternatively, Owner may provide its own conduit and vaults meeting Holy Cross specifications for use on the Project and convey such provided material to Holy Cross with an acceptable Bill of Sale. After installation by the Owner and acceptance by Holy Cross, Holy Cross shall continue as the owner of the conduit, vaults and related structures and facilities. f. If conduit and/or vault installation provided by Owner for the Project are found to be unusable or improperly constructed, irrespective of whether such discovery is made during or after installation, Owner will be responsible for correcting said problems at its expense as specified by Holy Cross and Owner shall reimburse Holy Cross for all additional costs resulting from conduit and/or vault installation being unusable or improperly constructed. 2. Despite the fact that Holy Cross reserves the right to specify acceptable work performed hereunder, Owner shall perform work hereunder as an independent contractor, including, but not limited to, the hiring and firing of its own employees, providing its own tools and equipment, payment of all wages, taxes, insurance, employee withholdings, and fees connected with its work on the Project. 3. Owner shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder. Owner shall repair all damage caused during excavation promptly and at its expense. No excavation will be undertaken within five (5) feet of existing underground electric facilities except under the on site supervision of a Holy Cross employee. W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 1 of 3 Revised 12/18/15 30 4. Owner shall indemnify, save, and hold harmless Holy Cross, its employees and agents, against any and all loss, liability, claims, expense, suits, causes of action, or judgments for damages to property or injury or death to persons that may arise out of work performed hereunder, or because of a breach of any of the promises, covenants and agreements herein made by the Owner. Owner shall promptly defend Holy Cross whenever legal proceedings of any kind are brought against it arising out of work performed hereunder by the Owner and/or work performed at the direction of the Owner. In the event Owner shall fail to promptly defend Holy Cross, it shall be liable to Holy Cross, and shall reimburse it, for all costs, expenses and attorney fees incurred in defending any such legal proceeding. Owner agrees to satisfy, pay, and discharge any and all judgments and fines rendered against Holy Cross arising out of any such proceedings. Owner also agrees to promptly satisfy and pay any monetary settlements of disputes that arise hereunder, provided Owner has been given the opportunity to join in such settlement agreements. The above indemnification clause shall not apply to state and local governments or local service districts. In lieu thereof, whenever Owner is a government or district it shall procure and maintain in effect at least $1,000,000 of public liability insurance covering the acts, damages and expenses described in the above indemnification clause. Upon Holy Cross’ request, such an Owner shall furnish a Certificate of Insurance verifying the existence of such insurance coverage. 5. Owner shall repair, at its expense, any excavation settlement and damage to asphalt paving or other surface improvements caused by such settlement resulting from work performed hereunder within the Property and Adjacent Land for a period of two (2) years beginning on the date backfill and cleanup are completed. 6. Owner, at its expense, shall stop the growth of thistles and/or other noxious weeds in all areas disturbed by excavation performed hereunder for a period of two (2) years beginning on the date backfill and cleanup are completed. 7. In the event Owner shall not promptly complete all of the obligations hereinabove agreed to be performed by Owner, Holy Cross may give written notice by registered or certified mail demanding Owner to complete the work and obligations undertaken by Owner herein, and if such is not completed within 30 days after receipt of such notice by Owner, Holy Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, all costs of completion shall be chargeable to and collectible from Owner. 8. As set forth in paragraph 1 above, Owner covenants that the trench, and all Facilities within the trench installed hereunder shall be located within dedicated or conveyed and recorded utility easements and at the proper depth below finished grade. It shall be the obligation of Owner to properly locate and construct the Facilities within the easement. Should it ever be discovered that such Facilities have not been properly located within dedicated or conveyed and recorded utility easements, or at the proper depth, it shall be the obligation of Owner to provide new easements for the actual location of the Facilities, or to relocate the Facilities within the easement, all of which shall be at the sole cost and expense of Owner. 9. It shall be Owner’s responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non- opening sides and backs of said transformers and switchgear. Owner hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said corrections will be made at the sole cost and expense of Owner. 10. All Holy Cross meter locations must be approved in advance. Notwithstanding such advance approval, it shall be the Owner’s responsibility to maintain acceptable access, as determined solely by Holy Cross, to all Holy Cross meters at all times. At any time in the future, should access to any Holy Cross meters be determined by Holy Cross to be unacceptable, then it shall be the Owner’s responsibility, at the Owner’s sole cost, to correct the access and make it acceptable, as determined solely by Holy Cross. 11. Owner covenants that it is the owner of the above described Property and that said Property is free and clear of encumbrances and liens of any character, except those held by the following: All those of Record. The promises, agreements and representations made by Owner herein shall be covenants that run with the Property and shall be binding upon the successors in interest, and assigns, of the Property. W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 2 of 3 Revised 12/18/15 31 The individual signing this Trench, Conduit and Vault Agreement hereby represents that he/she has full power and authority to sign, execute, and deliver this instrument. Holy Cross Energy, a Colorado corporation CITY OF ASPEN, COLORADO By: By: David Bleakley – Vice President, Engineering Steven Skadron as Mayor STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by Steven Skadron as Mayor of CITY OF ASPEN, COLORADO. WITNESS my hand and official seal. My commission expires: Notary Public Address: STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by David Bleakley – Vice President, Engineering, Holy Cross Energy, a Colorado corporation. WITNESS my hand and official seal. My commission expires: Notary Public Address: W/O#19-23481: 90-75: Castle Creek Rd 488 5/6/19 19-23481KH Page 3 of 3 Revised 12/18/15 Trench, Conduit and Vault Agreement Holy Cross Energy 32 Page 1 of 1 MEMORANDUM TO:Mayor and City Council FROM:Robert Schober, Project Manager THROUGH:Gena Buhler, Executive Director Wheeler Opera House DATE OF MEMO:May 16, 2019 MEETING DATE:May 20, 2019 RE:Wheeler Chiller Replacement REQUEST OF COUNCIL:Staff is requesting funding in the amount of $100,000 for the replacement of the mechanical chiller unit at the Wheeler Opera House. DISCUSSION: The Wheeler Opera House mechanical systems are scheduled to be recommissioned as a part of the larger project in spring of 2020.It was discovered that the existing chiller which is a piece of the HVAC system,will require extensive repairs this spring it was determined that a replacement at this time is appropriate and responsible when looking at the larger mechanical system and past performance history. With a full event schedule starting June 1, it is imperative that the chiller be in working condition for the Wheeler to host summer events. Due to Wheeler’s performance and event schedule the window to install this component of the mechanical system and make the necessary repairs was extremely limited. An emergency procurement process was initiated to get equipment ordered and contractors on site to perform the repair. FINANCIAL IMPACTS:Falcon Plumbing & Heating of Colorado Inc. has a contract in place in the amount of $94,465.00 (Exhibit A) to install a new Chiller unit along with the ancillary pumps and valving. We are carrying an additional allowance of $5,535 for electrical, controls and any required testing and balancing. The total repair cost of $100,000 is to be funded from the 2019 approved budget authority for Project #51041 -Wheeler Building and Site Improvements. A portion of this would have been scope required for the original project. A portion is capital maintenance and repair. RECOMMENDED ACTION:Staff recommends that council approve Resolution No. 65 Series of 2019. CITY MANAGER COMMENTS: Exhibit A –Falcon Plumbing & Heating Contract 33 RESOLUTION #65 (Series of 2019) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND FALCON PLUMBING & HEATING OF COLORADO INC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for HVAC System Repairs at the Wheeler Opera House between the City of Aspen and Falcon Plumbing & Heating of Colorado Inc a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for HVAC System Repairs at the Wheeler Opera House between the City of Aspen and Falcon Plumbing & Heating of Colorado Inc a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 20 th day of May, 2019. Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held May 20, 2019. Linda Manning, City Clerk 34 Exhibit A: Falcon Plumbing & Heating Contract 35 36 37 38 39 40 41 42 43 44 45 Regular Meeting Aspen City Council May 13, 2019 1 SPECIAL PUBLIC APPEARANCES..........................................................................................................2 CITIZEN COMMENTS...............................................................................................................................2 CITY COUNCIL COMMENTS...................................................................................................................3 CITY MANAGER COMMENTS................................................................................................................4 AGENDA AMENDMENTS ........................................................................................................................4 BOARD REPORTS......................................................................................................................................4 CONSENT CALENDAR.............................................................................................................................4 Resolution #57, Series of 2019 – Boiler Maintenance Work at Red Brick ..........................................7 Resolution #58, Series of 2019 – New City Offices Building – Shaw Construction GMP Contract and Resolution #59, Series of 2019 425/455 Rio Budget Update and Budget Authority............................7 Resolution #56, Series of 2019 – Building Permit Software System....................................................7 Resolution #48, Series of 2019 – Wagner Park Turf Restoration Contract..........................................7 Resolution #55, Series of 2019 – As Needed Excavation Contract......................................................7 Resolution #60, Series of 2019 – Revised Intergovernmental Agreement for Governance of the Aspen Pitkin County Housing Authority......................................................................................................7 Minutes – April 22 and 24, 2019..........................................................................................................7 NOTICE OF CALL UP – Notice of HPC approval for Conceptual Major Development Review, Relocation and Setback Variation at 105 E. Hallam Street ..........................................................................8 RESOLUTION #52, SERIES OF 2019 & ORDINANCE #12, SERIES OF 2019 – Land use Code Amendment and APCHA Referrals..............................................................................................................8 ORDINANCE #13, SERIES OF 2019 – Transportation and Parking Management....................................9 ORDINANCE #14, SERIES OF 2019 – Flavored Tobacco Ban...............................................................10 RESOLUTION #54, SERIES OF 2019 – 411 E. Hyman Avenue Extension of Vested Rights.................13 ORDINANCE #10, SERIES OF 2019 – 119 Neale Avenue, Transferable Development Rights..............13 ORDINANCE #8, SERIES OF 2019 – Spring Supplemental Budget........................................................14 ORDINANCE #6, SERIES OF 2019 – Historic Preservation Benefits Code Amendments......................15 46 Regular Meeting Aspen City Council May 13, 2019 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Frisch, Myrin, Hauenstein and Mullins present. SPECIAL PUBLIC APPEARANCES Proclamation – month of the young child. Mayor Skadron read the proclamation proclaiming May as month of the young child. Megan Monahan, Kids First, said thanks to council for your support and making May month of the young child. The 29th annual children’s parade is next Tuesday at 10am. Mayor Skadron said next in line to kids are trees. Mayor Skadron read the proclamation proclaiming Arbor Day as May 18th. Ben Carlson, parks, introduced the new city forester David Coon. This is the 27th year we have been a tree city USA. This Saturday at Paepcke park will be a tree raffle, bucket truck rides, hot dogs and kids activities, 10 to 12 at the park CITIZEN COMMENTS 1. Peter Grenney asked questions on the GMP contract for city offices. He said it includes the remainder of the building scope. Is that correct. Administrative oversite of change orders, how often will that be shared with the public since they are not coming to council. There is an additional 6,000 square feet of community space per council direction, when was it added. The 10% contingency by my math is less then 10 %. Who is ultimately accountable for the project. Mayor Skadron replied city council. Mr. Grenney said the exhibits show a bid plan dated 3-28 the program changes were not part of ordinance 4, why are they not on the website. Since February 11 about 3.4 million dollars in Shaw change orders. The overall contingency is 2.9 million. Do we feel 2.9 million is enough contingency based on all the changes to date. What happens. We are $850,000 away from the voter approved budget. On the armory, last summer the city manager quoted it at 15 million now it is 13. The armory budget is going down while the city offices one is going up. Will this building be remodeled or will costs be shifted to the offices. Are there allowances for cost escalation or will they be additional change orders. Is the waste all going to the landfill. 2. Chris Counsel, member of APCHA. I’ve sent council an email and want to follow up. Commenting on Reso 60. Everyone agrees the current system needs changes. The current call up process makes changes take too long. The proposed changes eliminate the board as a citizens board. It is reverting to a structure we had before that was determined to be ineffective. I don’t understand why we are going back to something we had 20 years ago. Independent counsel suggested the board be independent. There are a lot of good options out there including an elected citizens board. The county and city can still control the budget. I’m disappointed in the entire process. It has not been transparent. The board has not been engaged on the process. We appreciate the meetings from the county. Council and commissioners have failed to listen to the boards concerns. We asked that this wait until the new council is seated. I feel it has been disrespectful to the citizen boards. It is scheduled to be implemented on August 1st and the details of the citizen appointees have not been finalized. There has been no discussion regarding board members who have remaining time in their terms. He asked that this be postponed until it can be looked at holistically. 3. Peter Fornell spoke about APCHA governance, for a very long time we have been proud of our citizen boards that have been voluntary in nature. It gives an open minded opinion to you what an outside opinion is regarding the housing authority. I’m fearful what will go on with a board consisting of elected officials and a minority of citizens who might be fearful of saying what they think. He would like to see the board remain an advisory group of citizens. There are potential unintended consequence where land use applications could be decided on by the board. Take a step back in what you are doing with the APCHA governance. We wanted to have citizen advisory groups giving recommendations to the elected boards. 47 Regular Meeting Aspen City Council May 13, 2019 3 4. George Newman, Pitkin county commissioner. The sky is not falling down. We started a process with a subcommittee 2 years ago. The idea was to look at ways to address the capital reserve issues. Thorough those discussions we came up with 2 different alternatives. We could not come to an agreement. We gave it to the APCHA board to make a recommendation. That never occurred. The subcommittee reconvened and those discussions turned to governance. We even looked at breaking up the IGA. We felt that 90% of APCHA was working well. We decided what was needed to make it more effective was a new governance structure. After another year of discussion, we had a joint meeting and what was decided was since certain policies were not moving forward, including capital reserves, what was missing was the board making ultimate decisions and be accountable. Where is the accountability with a voluntary board. We felt it was appropriate to have elected officials back on the board. The majority is still citizens. In the long run if we want APCHA to make policy decisions and not deal with call ups, this new model is the way to go. There are still outstanding issues including accountability and who the director will report to. That will happen with the new council. The model is to create a more effective accountable board. BOCC approved the IGA unanimously last week. I urge you to approve it as well. 5. Toni Kronberg said the airport advisory group is moving along well. I want to give credit to the county. When I was in Glenwood one of the gas station attendants said all the kids here are driving there to get their tobacco. On city offices, when Harry and Bill came here it was reported that the city was reopening design. Mayor Skadron said that was regarding the plaza. Ms. Kronberg said on consent tonight is approval for the Shaw contract. I don’t understand why it is not a public hearing. I can’t understand why Rio Grande street is narrower. Hoping we would have a safer street with this project. Where will parents drop their kids off. She asked if there will be more check ins with the public regarding offices. Councilman Hauenstein said both Bill and Harry stated they did not want to open ordinance 4. 6. Bob Morris said Ruth Harrison wrote a letter to the editor the other day regarding the study about the arts. She said without the arts and institute we are just another ski town. We are so busy during the music festival. Without it we would be empty. Is the goal to try to quantify dollars spent for the arts. What’s the return. I don’t know if you will get the information you want and the expense will result in the correct product. Sara Ott, city manager, said this study is organized by ACRA. Our commitment is $10,000 as participants. The core team was assembled by ACRA to represent the arts. The last time a study was done was 16 years ago. I wanted to understand the employment component. The non profits want a better understanding of sales tax dollars generated from events. We have nothing to track the collected impact of the arts on our community. Many partners have come together for funding. Councilman Hauenstein said Alan, Heidi and Jim were all here asking for funds from the city. Originally, I said we know it is important, why do we need to do a study. They argued it has been so long since one was done and we need to actually quantify the impact of arts on the community. CITY COUNCIL COMMENTS Councilman Hauenstein said I’m wearing a Colorado Avalanche jersey. It came in late. I’m celebrating the Avs. They made it to the 7th game of the 2nd round. On work force housing, I look forward to building more. We have a revenue stream to pay for financing so I would like to move forward sooner rather than later in providing work force housing. Councilman Myrin said one more meeting than this council is over. Sara mentioned wanting to understand the non-profit employee generation. We removed the affordable housing exemption for historic properties. There is another exemption for non profits. If it is discovered there is employment in that sector and the non profits are relying on the housing that exemption should be phased out. This council has done some things on housing including raising the mitigation by 5%. If each council does the same the gap between what we have now and 100% will eventually be closed. 48 Regular Meeting Aspen City Council May 13, 2019 4 Councilwoman Mullins said on continuing to celebrate the kids. Colorado state passed legislation that now funds full day kindergarten. That is something to celebrate. On the city manager recruitment process we are having meetings with the recruiter. Thank you Ward and Bert for recognizing what this council has done for housing. People have recognized that arts and culture are economic drivers. It is important because currently the non profits use to get 80% of donations from 20% of donors. Now it is 95% form 5%. They are becoming dependent on a very small pool of donors. It is a great study and I’m glad ACRA is doing it. It will be worth wile for the city. In terms of APCHA and city office comments, I assume they will be pulled from consent. Councilman Frisch said thanks for the comments. Everyone agrees subjectively how important arts and culture are. I’m fully supportive of using community dollars for it. Happy spring. Mayor Skadron said the ride for the pass is on Saturday. It benefits the independence pass foundation. Also on Saturday from 10 to 12 is the arbor day celebration at Paepcke park. Tuesday 10am is the kids parade downtown. This is also police week. Thank you to our law enforcement at all levels. On funding full day kindergarten, what we hope to accomplish is free up funds for families to pay for other programs. We hope we close the achievement gap that falls within racial and geographic lines. We believe Aspen was the only municipality to pass an endorsement for the legislation that was signed. CITY MANAGER COMMENTS Ms. Ott said we reported that we anticipated to do the pavement repair on the bridge. It will be postponed. We don’t not know the date of the permanent fix. We are still working through some things with CDOT. We are going to recommend delaying the 2019 asphalt overlay program. Staff is recommending that for 2020. Regarding emergency procurement for the Wheeler, it will come back on Monday. AGENDA AMENDMENTS Jim True, city attorney, said 2 of the last 3 public hearings staff will request be continued. Resolution 54 had a noticing error by the applicant. Ordinance 10, 119 Neale Ave, we are going to request a continuance until next Monday. There is a gentleman who cannot be here next week to comment. BOARD REPORTS RFTA – Mayor Skadron said we talked about CO and encroachment matters. The supplemental budget including bus replacement and Glenwood maintenance facility. We talked about battery electric busses this fall. The plan is to have 30% of fleet electric, 30% compressed natural gas and 30% other things. That was my final RFTA meeting after 12 years. I’m really proud of the work we did there. CONSENT CALENDAR Councilwoman Mullins said on 58 there were good questions brought up. One of the things I emailed about was where is the 6900 square feet was added on. What use is it for. Jeff Pendarvis, asset, said that was over the course of design as it flushed out from one roof to two roofs. There were discussions about Tasters, ACRA and replacing sister cities and the rio grand meeting rooms. They were all included as part of ordinance 4. Councilwoman Mullins asked how would Tasters add to it. Mr. Pendarvis replied we would need to replace the space. Councilman Frisch said despite the looks, Tasters is open for business. Mr. Pendarvis asked how staff should respond to Peter’s questions. Councilwoman Mullins said some are things that can’t be determined until we are in to construction. Mr. Pendarvis said Jack is here today to talk about the GMP. Jack Wheeler, owner’s rep, said the exhibits included what the number is for as well as a scope. I’m happy to meet with Peter and address his questions. The GMP is a guaranteed maximum price. There is a scope that goes with it. Shaw has been in business over 50 years and been involved in complex projects. Councilwoman Mullins asked does the GMP accommodate any changes. Mr. Wheeler said 49 Regular Meeting Aspen City Council May 13, 2019 5 currently the design accounts for LEED gold. That has always been the criteria and continues to be. The design far exceeds that. We are working with climate action to see what is important for the city. 85% of the recommendations had already been taken in to account. We will be back in front of you if there is a cost impact related to energy. Councilwoman Mullins asked for a comment about the voter approved budget. Ms. Ott stated the ballot question was regarding location not budget. The estimate from the fact sheet is 46 to 49 million. The GMP is within that. The 15 million was a number that was part of the negotiations for the Hopkins property. Councilwoman Mullins said we are still working on finalizing the interior. Ms. Ott replied correct. We will come back once a month to address the final issues including net zero, plaza and a review of programming. Those are the three major decision packages. Some of them have no price tag as they are included in the GMP. Net zero will have an increased cost. Councilman Hauenstein said LEED gold, we have to pay for. It may be we get close to net zero for cheaper than LEED gold. Mr. Pendarvis replied we are still weighing that. Councilman Hauenstein said we still need natural gas as a back up. Mr. Pendarvis replied correct. Councilman Hauenstein said Peter brought up a few things including the three million in change orders. Mr. Wheeler said the Shaw contract was initially executed 4 years ago. The first piece was pre construction services, the APD, then the housing, then the utility project. They were all change orders but were all anticipated in the overall project. Councilman Hauenstein asked about the city manager executing change orders to keep the project moving. As I understand it will be transparent and open to the public. You will be reporting back and council will be approving after the fact. Ms. Ott stated the resolution tonight authorizes me to administer the contingency. My expectation is to report to you and post to the project website at least monthly. One of the things that came up is fluctuation and pricing of goods. It is absolutely a timing reason. We will administer it to the detail you will like. There is not the need for council action on every change order. Councilman Hauenstein said Peter asked if we will be taking from the armory for the office project. I think the GMP covers everything. Mr. Wheeler stated the budget for the armory has moved up and down over the last 5 years. It is back up to 13.9 million from what we know. The actual construction cost has remained the same. It has never been higher than 15.8 or lower than 13.8. It is based on the current market and what we plan to do for this building. We feel it is an adequate budget. Councilman Hauenstein said the Shaw contract for tonight is for 24 million but that is not the total cost for the project. It may be misleading to some that 24.8 for Shaw is to cover all the construction. That is not the case. Mr. Wheeler said that is just to construct the building. Mr. Pendarvis said regarding waste, we successfully diverted waste from the deconstruction. Councilman Frisch said I assume there will be this conversation after the building is constructed. I suggest questions should be presented in writing. I don’t think verbalizing 27 questions every week is the best way to get answers. If the real goal is to get the answers my suggestion would be to email staff. Mr. Greeney said getting a packet on Friday and answers by Monday is not realistic. Councilman Frisch said not every question that council asks is able to be answered by staff on Monday either. I think staff will do a good job getting back in a reasonable manner. It is better to submit everything. Scott Miller, assistant city manager, said we have been meeting with Peter since February. Every time he asked we have met with him. We have also met with other members of the public. Mayor Skadron said Toni, all you care about is stopping this project. I don’t know what more we can do. Ms. Ott said from a procurement standpoint, council has always done it by resolution not ordinance. That is why it qualifies to be on the consent. If council wants to handle the consent differently we can. Councilman Frisch said we should vote on everything so far and pull 60. Councilman Myrin said I will vote no on 48 as I have for the past several years. Reso 60 – APCHA IGA Councilman Frisch said from a technical standpoint there are items about the land use. If resolution 60 goes forward then we need to bring in the amendment to discuss the land use code review. Mr. True said that is consistent with how other referrals happen. I think staff would still recommend ordinance 12 moves forward. If you adopt Reso 60 the IGA goes to the county for second reading. Councilman Frisch said there has been a lot of home health issues at home for me since December so I have not been able to respond as quickly as I like. I’m not sure at any point any APCHA member that has 50 Regular Meeting Aspen City Council May 13, 2019 6 reached out wanting to talk has been turned down. There is no doubt that a bunch of great work has been done. As George said, I think we all agree there are some governance stumbling blocks at the board level that has kept them from being as effective as they can be. There are times when out reach has not been what it could be. There has been some push bask we are talking these governance issues at the end of a term. I’m pretty sure if we were up here backing what the folks on APCHA wanted we would be cheered. Instead you don’t like our decision and want to kick it down the road. I think that is unfair and unbecoming of the APCHA board. Not including the board has been discussed often. The board chair of APCHA has been involved in every step of the process. At the December 11th meeting we dove in to the governance issue. Your chair Ron Erickson was sitting there at the table for the entire part of the conversation. A few months ago we had a conversation of fine structure and Mr. Erickson was at the table. I don’t buy that all of a sudden we are springing this on to the community and board. Any time 10 elected officials don’t go to an APCHA meeting you are being slighted. I don’t know of a time where a board member raised their hand and said I want to speak and they were turned down. A lot of things I’ve read about is elected officials causing problems. I don’t see that happening up here. Currently there are 10 elected officials in the model. We are trying to narrow it down to 2 and get them involved sooner. The new board will be made up of 3 community members and 2 elected officials. One of the things that has been written about is some APCHA folks want 100% elected officials. To me it is not elected or not but you don’t like some version of the 5 of us and 10 county making decisions. The other thing that came up is don’t make the decision now while we have to tackle the staff issue. Nothing on the administration staff level should affect how the board is composed. The whole frustration comes down to that the members of the board and staff are looking at a traditional housing authority. APCHA was set up for a different reason and revenue source. I think it would be a derelict of duty to hand over the money to an independent board. The vast majority of money comes from RETT money. I think a lot of the angst is coming form APCHA and why can’t we be like a traditional housing authority. To this point, I think it is a huge upgrade from a lot of common frustrations we have shared. When an issue can’t be agreed on like capital reserves one side can walk away which is not helpful. I think this is a brilliant compromise. If I am a board person or staff member I would be thrilled we will have a more nimble board. As far as reporting structure, it is up for discussion but I don’t think there is agreement as to what the problem is. There is a pot of money and we all need to realize where it comes from. The most important thing is the current residents of the program, future ones and housing stock. I’m supportive of the resolution and will show up at the meetings and happy to continue the conversation. I’m glad the board will be jointly appointed. There has been a lot of good work but sad the frustration has spun out of control. Councilman Myrin said 3 of the council members here tonight received a vote of no confidence at the last election. This council needs to give the next one accountability for the IGA. It is difficult for the community to communicate and maybe that is why 3 of us who ran received a vote of no confidence. Mayor Skadron replied that is not true, you are the only one who ran and was not elected. I think the next council should have accountability for this. Councilman Hauenstein said I think it is totally appropriate for the sitting council to make this decision. It was this council that for over a year have been involved in the conversation how to fix something that is broken. This resolution will streamline and give the board authority to make decisions. I believe in the last few months the animosity that has serviced, I don’t feel it is a contentious relationships from the elected bodies. I’m at a bit of a loss to understand where it is coming from. There has been numerous work sessions where these issues have been discussed. The people sitting at the table now should be the ones making the decision. Council didn’t ignore a resolution, there was no resolution. It failed for a lack of a second. When a resolution fails it is not ignored. I take exception to the characterization that council ignored a resolution that never passed. It is honestly not in the boards responsibility to advise on the construct of the board. I advocated for an elected board but there was no traction for it. It has been presented when elected are at a meeting it intimidates people from making honest open comments. If that was the case how would an all elected body be less intimidating. If the board is dissatisfied with the irregularity of elected showing up at the meetings yet say it is intimidating when they do, that is flawed logic. 51 Regular Meeting Aspen City Council May 13, 2019 7 Councilwoman Mullins said the question of if this council should make the decision or pass it off. We have been working really hard on this for years. As a group we participated in the BOCC meetings. A lot of effort has been put in to this. I don’t think it is at all inappropriate for this council to start the first of these changes. Elected officials didn’t work 20 years ago but things are different now. We have a model for a strategic plan. 20 years ago the new board may have worked better. We need to make a change. If it doesn’t work we revisit it. I think we have put together a really good IGA to move forward. As far as APCHA participation I think Adam outlined it well. Last, the appointment process, we still don’t have it ironed out exactly what will happen. I think everyone is hoping the current board members will reapply. Mr. Counsel said clearly there is a lot of emotion in the room. I don’t live in affordable housing and don’t have a dog in this fight. I’ve been involved in housing issues for the past 20 years. I believe in housing and our community. During the election cycle Ron wrote a letter that was inappropriate. I called him on it at the next meeting. I contacted Adam that that letter was not reflective of the entire board. I sat through all the work sessions. We were never given the opportunity to speak or were asked to speak. We have not had the opportunity to speak publicly. It is a process point but we feel we have not been engaged with in a public setting. I am not calling the process flawed as a function of not getting what we want. All of us have the best interest of our community at heart. We have a disagreement of how to get there. You seem to believe we have been involved. The APCHA board was not made aware of this until August. There is animosity because we have been berated, cursed at and belittled. This will probably pass and that is fine. I don’t know what the right answer is, but I think the context is important to understand where the frustration is coming from. The entire board has not been involved in the process. From the time we found out we repeatedly brought our issues to the floor and have not been responded to in a public forum. Mr. Fornell said I’m concerned about the width of the new boards decision making abilities. I don’t want the county making decisions on city property. Councilman Frisch replied the board will not be making final decisions on land use. Mr. Fornell said that is a misunderstanding of mine. Resolution #57, Series of 2019 – Boiler Maintenance Work at Red Brick Resolution #58, Series of 2019 – New City Offices Building – Shaw Construction GMP Contract and Resolution #59, Series of 2019 425/455 Rio Budget Update and Budget Authority Resolution #56, Series of 2019 – Building Permit Software System Resolution #48, Series of 2019 – Wagner Park Turf Restoration Contract Resolution #55, Series of 2019 – As Needed Excavation Contract Resolution #60, Series of 2019 – Revised Intergovernmental Agreement for Governance of the Aspen Pitkin County Housing Authority Minutes – April 22 and 24, 2019 Councilman Frisch moved to adopt all but Resolutions #60 and 48; seconded by Councilwoman Mullins. All in favor except Councilman Myrin. Motion carried. Councilman Frisch moved to adopt Resolution #48; seconded by Councilwoman Mullins. All in favor except Councilman Myrin. Motion carried. Councilman Hauenstein moved to adopt Resolution #60; seconded by Councilwoman Mullins. All in favor except Councilman Myrin. Motion carried. 52 Regular Meeting Aspen City Council May 13, 2019 8 NOTICE OF CALL UP – Notice of HPC approval for Conceptual Major Development Review, Relocation and Setback Variation at 105 E. Hallam Street Amy Simon, community development, said April 10th was the HPC decision. This is a 3,000 square foot lot with an unusual brick miners cottage on it. The application is to demo a small non historic addition, lift the historic structure and move it forward and construct a new addition. There was no floor area bonus request. It is also under the maximum floor area. The set back variations only had to do with the historic house is wider than the setback in inches. It was a 4 to 2 vote. 2 had strong opinions about the relocation and roof form. Councilwoman Mullins asked what are the conditions. Ms. Simon replied HPC has been trying to reach out to referral depts earlier. Some conditions deal with building code compliance. We want to make sure parks is satisfied with the excavation. The basement will be a bit larger than the footprint with a green roof. There are also details of the foundation treatment. Councilman Myrin said the question about the relocation forward, what was the issues. Ms. Simon said this block is all historic buildings. Relocation needs to be considered carefully. Would this place the building differently than its neighbors. The historic buildings are not in perfect alignment. Moving this forward would maintain the condition. Councilman Hauenstein said this house is back from its neighbors. Why is it raised. Historically it doesn’t have a step up. Staff was recommending a step up. Ms. Simon said we are trying to make sure there is no change. The front porch is settling and almost flush. It is important the house stays the same relationship to grade. We don’t want to change the existing design. Councilman Hauenstein asked if there was a sidewalk it would be another one to no where. What is the health of the cottonwoods. Ms. Simon said engineering had requested a sidewalk. After they met with parks they decided it would affect the trees. Parks is trying to preserve the trees. Mayor Skadron said this will not be called up. RESOLUTION #52, SERIES OF 2019 & ORDINANCE #12, SERIES OF 2019 – Land use Code Amendment and APCHA Referrals Mr. True said you can discuss this in coordination with ordinance 12. The resolution is a public hearing. Mike Kraemer, community development, said the policy conversation dictates how the land use conversation goes. This is the 2nd step in a 3 step land use code amendment. The first is public outreach. That has been done through the various work sessions. With the IGA change, staff has picked up on code amendments that need to happen with a council member on that board. The code states APCHA review. The text is not that complicated but there are 15 different sections that need amended to remove the APCHA referral. It is being replaced to be compliant with APCHA guidelines. The executive director will now be providing land use referrals. We are recommending 2nd reading for May 20th. Jessica Garrow, community development, said Peter Fornell made some comments during the IGA discussion. I want to make it clear that these amendments will address the issue he raised. This will also make all the land use referrals consistent across the board. This amendment has needed to happen and would have regardless of the IGA. Councilman Hauenstein asked is there precedent that a policy resolution are held back to back. Ms. Garrow replied yes it has happened a few times before on the more technical amendments. Councilman Hauenstein said this makes sure an appointed board does not have authority over land use cases. Mr. Kraemer said the make up of the board includes elected officials. We are trying to eliminate the referral in the code. All referrals will be from staff. Ms. Garrow said a parallel example of this is parks. Trees go to parks staff not the open space and trails board. It is not taking away the APCHA review. It is handled more administratively. Mr. True said this is why I said earlier in the meeting we would recommend this anyway to make it consistent with other recommending bodies. 53 Regular Meeting Aspen City Council May 13, 2019 9 Councilman Frisch said I’m supportive of this. In the past APCHA has been reviewing land use applications. I think on their own volition and made some recommendations. Don’t be surprised if there is pushback that the board is losing power by reviewing this. Open space has never looked at them. APCHA has for many years. It has been done more on an informal basis. Ms. Ott said the board discussed this 2 meetings ago and were inquiring as to what the council is looking for from them. They questioned if this was the best use of their time as a board since council questioned their recommendations. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Myrin said during the application for Lift One the board wrote an extensive memo. How will that content be conveyed to council. MS. Garrow said Gorsuch and Lift One were unique in timeframe and review process. In the IGA if there is a request from council for the board to weigh in, it is there. This amendment does not address the one off more complex cases. Councilman Myrin said I don’t recall if the letter was signed by the board or the director. Mr. Kraemer replied I don’t know either. The final reviews for those projects are with P&Z and HPC. Councilman Myrin said the content of the letter was specific to housing. I think it was valuable for that content to be pushed on to council. Ms. Ott said the executive director is to provide comment on proposals, if requested. It does not prevent them from commenting but obligates it when asked. Councilman Frisch said if the board wants to get involved or is asked, what do the elected officials do. Mr. True said there is a recent case as long as the elected official is disclosing and can represent they are reviewing the land use hearing that comes before them they do not need to recuse. I do believe those issues may arise and the simple solution is the elected official recuses from the APCHA board or later from the council or commission decision. It is something you have to weigh as it plays out. The recent case would indicate it is not necessary. Councilwoman Mullins moved to adopt Resolution #52, Series of 2019; seconded by Councilman Hauenstein. All in favor, motion carried. Councilman Frisch moved to read Ordinance #12, Series of 2019; seconded by Councilman Hauenstein. All in favor, motion carried. ORDINANCE NO. 12 (SERIES OF 2019) AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING CITY OF ASPEN LAND USE CODE RELATED APCHA BOARD REFERRALS AND LAND USE APPLICATIONS Councilman Hauenstein moved to adopt Ordinance #12, Series of 2019 on first reading; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Hauenstein, yes; Mullins, yes; Frisch, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #13, SERIES OF 2019 –Transportation and Parking Management Ms. Garrow stated this is minor clean up to transportation and parking management requirements. For background, we had extensive meetings during the moratorium in 2015 and 2016. Parking amendments were adopted and integrated parking and mobility requirements. We expected at that time there would be cleanup. The ordinance maintains current development rights and regulations but provide clarification. This is the first of what will be 2 or 3 ordinances over the next year. More substantive ordinances will come in late 2019 and early 2020. We have been working with a focus group of architects and planners as well as check ins with P&Z and HPC. This is improving formatting and eliminating confusing technology. There is no change to development requirements, just adding and clarifying some terms. She 54 Regular Meeting Aspen City Council May 13, 2019 10 gave the example of accessory spaces. Typically, they are associated with a larger commercial business or lodge where guests not there for a full day can load or unload. The moratorium changes described parking requirements with metrics that will be updated. With shared parking we wanted it to coordinate with the off street standards. It allows off site parking to be located off site. It is included in the mobility plan process. We want to ensure the code delivers the council goals of the moratorium. Originally, this included removing or reconfiguring parking where there is no clear process. We are going to take it out. That seems like it is more policy change than code clean up. Councilman Frisch said I’m fully supportive of the true clean up. The bigger stuff can be tackled at a later date. Councilman Hauenstein said anything that makes the regulations less confusing I’m for. Mayor Skadron said on the shared parking, what are we hoping to see as far as change. What will parking look like. Ms. Garrow said when we created the model if there was a larger redevelopment that provided more parking than required it could be public parking or shared parking. Mayor Skadron said is this built on the principle that a restaurant and office tower where the office needs the parking from 8-5 and the restaurant from 5 on, one parking lot could satisfy both. Ms. Garrow replied yes, you may see that in a lot of communities. There are enough parcels particularly in the lodging sector where you may see this. A real world example is the benedict commons parking. Councilman Frisch moved to read Ordinance #13, Series of 2019; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE NO 13 (SERIES OF 2019) AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING CODE AMENDMENTS TO LAND USE CODE CHAPTER 26.515, TRANSPORTATION AND PARKING MANAGEMENT Councilman Frisch moved to adopt Ordinance #13, Series of 2019 on first reading; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Frisch, yes; Mullins, yes; Myrin, yes; Hauenstein, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #14, SERIES OF 2019 –Flavored Tobacco Ban CJ Oliver, environmental health, said if passed this ordinance would ban the sale of flavored tobacco products in the city. It bans the flavor of all tobacco and nicotine products. The ordinance includes menthol cigarettes, chewing tobacco and vaping liquids. Council heard from a number of health and school officials requesting a full ban. There were also questions about what impact a full ban would have on local retailers. Councilman Hauenstein said we received one or two emails saying there is no credible evidence that vaping is safer or less harmful than smoking. I would like to have a comment on that. Councilman Frisch said to Wards follow up, whether it is Dr. Levin or the health department it would be helpful to have that. We received 5 or 6 emails from someone saying they own a retail store in Aspen and their sales would be affected 35%. One person responded back that they own a store in Portland Oregon and the trade association asked them to reach out. We should not be surprised to see similar conversations. We are definitely on the radar across the country. Councilwoman Mullins said thank you for putting this together in a week. 55 Regular Meeting Aspen City Council May 13, 2019 11 Councilman Hauenstein said I still have concerns and trepidation telling someone over 21 what they can do with their life. I understand it is our charge to look after the public health of the community. It is something I’m struggling with. I will approve this on first reading. I also struggle with people who can vote or die for their country, but we say can’t smoke menthol cigarettes. I don’t know where overstepping the bounds is. I’m sensitive to the loss of revenue that consenting adults have for something that is legal across the country. I do want to bring it forward for a public hearing. Councilman Myrin said over 21 people should be able to decide what they want to do as long as it doesn’t affect others. Councilman Frisch said there is the do nothing, ban vaping or all menthol products. Do you not want to get into the vaping discussion. We have been talking about youth and that is where the focus has been. I argued last time if we want to switch from a youth discussion to a health discussion, we have 7 or 8 marijuana shops Aspen and multiple liquor stores. Councilman Myrin said the over 21 should be able to do what they want as long as they are not impacting others. Mike Haisfield, owner of the Aspen Store, said I feel like the issue we are talking about is once 21 make your own decision. I’ve been the owner of the Aspen store since 1996. I have 20 full time and part time employees. I have talked to council and the general public and feel this was started to protect our youth. Based on my first hand experience, vaping and E cigs are the issue with young adults not the other tobacco products. The ban is imposing restrictions on grown adults who are, despite assumptions to the contrary, the primary users of flavored tobacco products and should be allowed to make their own decisions. In December of 2018 we voluntarily eliminated all vape and e cigarettes products from all our stores. We took the initiative and were hoping to set an example. I believe we must educate our youth. As of now there has not ever been a class or seminar to Aspen students on the effects of tobacco. The city has raised over $300,000 on tobacco sales but has not taken any steps on trying to curb a young adult through informative classes or seminars from even wanting to try it. A ban won’t stop a young adult for wanting to try it, but education will. I ask that this ban is reconsidered and for the attention to be redirected to other forms of support, not personal taste. Flavored tobacco and chew are options that a 21 year old adult has. There are seven dispensaries within walking distance that offer all type of flavors, candy or other packages. If this is about youth lets focus on them. Mike introduced his sons John and Brady, both who attend the high school. They are some what where I get my information from a school level. Education would be more supportive than a ban. If it is not county and city wide, education is more important. John said from a student perspective as far as tobacco products go is students using e cigarettes or vape products. You never see them dipping. It is only e cigarettes. Brady said I’ve seen people use the vape products but never a cigarette or tobacco. Mike said even if it was starting with the vape and e cigarettes, get education involved so kids don’t even start would be much more effective. I’m in the school system for quite some time. If we see kids using the other products I will pull them off my shelves. Mayor Skadron asked what is the financial impact. Mike said from 2018 we were down 35% in tobacco sales. This proposal would be another 25 %. Because of the age change and the tax. The tax has been a major deterrent. Mayor Skadron said we talked about this at the work session and I referred to the AACP and health of the community. The compelling argument you are making is the availability of the product at nearby retailers. What we haven’t done is work in conjunction with the county, Basalt and Glenwood making it unavailable. We are working on a plan to apply the 300K toward education. Mr. Oliver replied that is the plan. A lot of it is the peer to peer piece that matters not a person my age saying don’t do that. We’ve had a lot of conversations from kids at the high school addicted to vaping products. That will be one of our focal points. Mayor Skadron asked what is the tine frame. Mr. Oliver said I will be presenting recommendations later this summer. It will be incorporated in the 2020 budget. By all accounts these programs work. The conversation aligning more closely with the county. The county is about to embark on the same steps we have with licensing, tax and age restriction. 56 Regular Meeting Aspen City Council May 13, 2019 12 Karen Kenneman, Pitkin county health director, said we have been following your lead on this. We are waiting for HB 1033 to pass which will allow counties to do the same thing. We have the board of health recommendation to do retail licensing, tobacco 21 and the tax. We totally feel your pain Mike and have a consistent policy across the county. We commend you for taking vape products off your shelves voluntarily. If you pass this ordinance you will be the biggest leader across Colorado. Whether you go for a full or partial ban we are here to support you. Mayor Skadron said the issue around proximity and availability will be addressed in the near future. Karen replied exactly. Mike said my thinking was to get more people in line down the valley. Councilman Hauenstein said thank you John and Brady for coming in tonight. After our meeting I went to city market and John was on vacation. I would like to include him. I’m curious about the peer group and if we can start a peer group advisory group to come up with ideas of what would be effective. Although it is contrary to my personal belief, during prohibition it spanned organized crime. If adults want to do something they will do it. I’m struggling with telling someone 21 they can’t do something. Tobacco is a nicotine delivery system. Vaping is a gateway drug to tobacco addiction. Councilwoman Mullins said for second reading it would be good to talk about the valley wide efforts. Ward you make a good point. If there is some way to summarize the dangers of flavors tobacco. What is the risk of keeping it on the shelf and the middle road of leaving menthol untouched to unrestricted. Mayor Skadron said what is the effectiveness of us banning it when our neighbors don’t. Mike said for me banning everything is getting away from what you want to do. If it is the youth you are concerned with it is just vaping. The other ban is just talking to adults. Councilman Frisch said the reason I’ll be voting no on first reading is the same as what I’ve been talking about. Focusing on youth is a long term reduction of tobacco use. 95% of the people who smoke started at 16 or 17. As Mike said a lot of the reason the community go behind T21 and the tax was because we had a discussion about youth. I think we have a lot of great discussion on youth not what legal product might not be healthy for everyone. I think we should focus on vaping. Snowmass has put in some type of plan. It would be nice if we could square up the municipalities and the county. Tobacco is one aspect to being healthy but not the end of it. Mayor Skadron said the reason I support it is the community plan talks about community health. They are hopes and dreams of the community. One of the chapters talks about health and well being and encouraging healthy lifestyles. I’m not looking to burden your small business but to honor the aspirations for the community. What is a compelling argument is the proximity. It is encouraging to hear our fellow political bodies are getting behind this. I’m open to the discussion on a partial ban. My preference would to be aggressive. Councilman Myrin said the other issue on this is the tax has a fixed dollar amt for tobacco and a % for the other products. The % will increase with inflation the fixed dollar will not. The incentive over time will be to switch from vaping to tobacco. Councilman Frisch said for a couple years we are ok then it is fixed. Mayor Skadron said there is potentially 3 council members desirous of an option that was not presented. Will there be 2 ordinances coming back. Mr. True said I would suggest you do pass something tonight. Whether this as written with direction to bring back language for a partial ban. You could vote to amend it right now. I believe that would be harder to back up to a full ban if you chose. Councilman Frisch said as much as I would like to get to the partial ban right away I don’t want to rewrite it now at the table. I think I’ve voted no a few times on first reading. I will vote yes but be clear I want the partial ban. Mr. True said I want to make certain there is direction to prepare a partial ban ordinance. Councilman Myrin and Frisch replied yes. 57 Regular Meeting Aspen City Council May 13, 2019 13 Councilwoman Mullins moved to read Ordinance #14, Series of 2019; seconded by Councilman Hauenstein. All in favor, motion carried. ORDINANCE NO. 14 (SERIES OF 2019) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN – HEALTH AND QUALITY OF ENVIRONMENT – TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF FLAVORED TOBACCO PRODUCTS, INCLUDING MENTHOL, IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS Councilman Frisch moved to adopt Ordinance #14, Series of 2019 on first reading; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Mullins, yes; Hauenstein, yes; Myrin, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. RESOLUTION #54, SERIES OF 2019 – 411 E. Hyman Avenue Extension of Vested Rights Councilman Myrin moved to continue to June 24, 2019; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #10, SERIES OF 2019 – 119 Neale Avenue, Transferable Development Rights George Bnninghoff said I live at the corner of Neale and Gibson in Urban Blight in unit 2. My co owner is Darleen Vehr. His has been before council several times. At the last conversation there was a title report commissioned by David Fluente. I’m trying to build evidence as to why you should not act tonight. He entered negotiations to buy the property. It fell apart on fraudulent negotiations by Shoaf. The title report concluded the urban blight condo association owns this small strip of property. I had my attorney go over the same title work. He concludes the title is vested in urban blight. David Harris purchased the benedict cabin subdivision. He needed an easement to park his vehicle. Shoaf drafted it on our property. I couldn’t give it to Harris. He entered negotiations with Shoaf that are not privy to me. I concluded that the result is he accomplished moving the easement. Darleen Vehr signed a quick claim. I spoke with her and she feels deceived by Mr. Shoaf. I went back to Ann Marshall, former owner of my unit, and said did anyone approach you. I am asking you to not take action to underwrite the transfer of TDRs. They will be an encumbrance of a property I clearly own. I ask that Mr. Shoaf clean his hands and go back and acquire proof he owns this property. The survey he has is inclusive of my property. He acknowledged he was deceiving the city for many years. I believe he built a cabin on the riparian rights. I don’t think it was built for anything than to antagonize the residents of urban blight. I ask you to have Mr. Shoaf prove that he owns the property. I would like to come back in late July or August. Mr. True said I believe there are some points and he did present to me a letter from Lenny Oats. I understand his points but do believe there may be other ways to resolve this. I do not think it is appropriate to continue this to July. I think it is appropriate to continue this to next week and try to resolve this. I think there is another way to resolve it. What his question is, is the encumbrance of the disputed property. To act in good faith of the settlement agreement I would try to resolve this next week. Councilman Hauenstein asked does the settlement agreement have a timeline. Mr. True replied it does not but I think we should move prudently to avoid abandoning the agreement. Mr. Benninghoff said it does have a timeframe for Mr. Shoaf in regards to the demolition of the shed. I ask the timeline be extended to have Lenny go through all the paperwork. Maybe Mr. Shoaf and I can find a way to resolve it. Councilman Myrin said on the demo permit, is there a way to extend issuing the TDRs until the demo has occurred. Mr. True said I’m trying to address that with Mr. Shoaf and his attorney. Councilman Myrin 58 Regular Meeting Aspen City Council May 13, 2019 14 said I would support that. I don’t understand us giving someone something until they do what they promise. Councilman Frisch said we are under settlement agreement discussions. Is someone saying there is a settlement agreement with inaccurate information that the city has been provided. Mr. True said we are aware of the disputed property. I do believe the disputed property does not need to affect our ability to close this. We are asking this be continued. You may end up not passing it next week. We need to have the opportunity to follow up on some of the issues that have been raised. Councilman Myrin asked can I ask for a continuance until the shed has been demolished. Councilman Frisch said I had the exact discussion with Jim this week. I think it is important for us the community gets our side of the bargain. Councilman Myrin said why don’t we continue it until the shed is demolished. Mr. True said I think there is a better way to handle it. We advised the attorney for Shoaf we were going to request a continuance. You have options, but I think we need some more time. Councilman Myrin asked is having too much time a problem. Mr. True replied it could be considered a breach. Ms. Garrow said Mr. Shoaf has applied for a demo permit and it is ready for pick up today. He made the application he was required to do and paid the outstanding fees. Mr. True said under the agreement he has a period of time to take the shed down. Mayor Skadron said we are sensitive to your comments. We have no desire to have this move forward until the shed has come down. Mr. True said we will address the shed and the issue of the disputed property. I can’t promise we won’t continue it again. I would like to negotiate in good faith to see if we can resolve all of the issues. I do not think we will resolve the underlying property but how the TDRs affect the property. Councilman Frisch moved to continue Ordinance #10, series of 2019 to May 20, 2019; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #8, SERIES OF 2019 – Spring Supplemental Budget Councilman Hauenstein left the meeting. Ben Sachdeva, finance, said the numbers have changed a bit since first reading, going down. Capital carry forward decreased by 3.5 million. Councilman Myrin said page 479 mentions the space rented at obermeyer. What is the square footage. Ms. Ott replied it is the same footprint the police department was utilizing. Councilman Myrin asked is it smaller than what county com dev moved out of. Ms. Ott stated the 3rd floor is not empty but very full. There is not a way to put the entire team without dividing them. Councilman Myrin said the 7,000 square foot old art museum or the mill building. Ms. Ott replied I don’t believe so but am happy to take you on a tour. I put them through a lot to try to avoid it. We are not in a place to provide reasonable office space. Councilman Myrin asked about Mail Trail. It is in desperate need of landscaping. I know it took longer. Trish Aragon, engineering, said the landscaping is part of the project. It will happen soon. Councilman Myrin said thanks for the continuation of the scanning project. Ms. Garrow said we have a lot of paper and it has taken longer than we expected. Councilman Myrin said I think it is worth the investment. Councilwoman Mullins asked where is the reduction. Mr. Sachdeva replied in carry forward related to the AHP projects. Some of the costs were moved in to 2018. Mayor opened the public comment. 1. Toni Kronberg said I don’t see where the fitness center and outside pool have been included in these numbers. The spark group has been working on it for a few years. Mayor Skadron said it has not been part of our discussion and either has a rocket ship to the moon. Ms. Kronberg said the decrease in transportation, is that because of the cancellation of the Lift contract. The increases for electric, water, stormwater and parks and open spaces. Are they for a specific projects. With the city offices the interest that will be incurred for the borrowing is 30 million. 59 Regular Meeting Aspen City Council May 13, 2019 15 Where will that come from. Where are the funds for parking and housing mitigation. Mr. Sachdeva said the details on the funds is all outlined in the packet and available on the website. The interest will be serviced by the debt service fund. Mr. True asked did she ask any questions you want answered by staff. Councilman Frisch said I would continue to reach out to staff. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Ordinance #8, series of 2019; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #6, SERIES OF 2019 – Historic Preservation Benefits Code Amendments Ms. Simon said this is follow up on some revisions from April 8. It will amend benefits available to historic properties. The concern with potential gutting of homes and enlarging something already oversized. We had a citizen ask if instead of prohibiting it to sterilize the floor area. We were interested in the idea, but it would require filing a deed restriction. It would involve tracking and we are not as excited about it than the original proposal. The second item is how to handle the floor area bonus. We are trying to reduce the bonus so smaller lots have a smaller bonus. A suggestion was made to do a sliding scale. Staffs recommendation is based on lot size. We wanted it to be more straight forward. In the proposed scenario a 4500 sq ft lot would receive a 250 bonus the sliding scale would be 75 feet more. We would like to stick with the staff recommendation. Third is growth management amendments. The direction was no special treatment for historic properties. We have removed all of that from the code. Councilman Frisch said I think the problem on the demo is people were tearing out a 2nd floor then increasing the mass of the property. That was the concern not the technical aspects. Someone is trying to say I want to take away the 2nd floor but not earn back the space. We said it seems fine to us. You can’t figure out a simple way to do it. Ms. Simon said we can do it but it is complex with deed restrictions and tracking. Councilwoman Mullins asked which is most effective in lesser mass. Ms. Simon replied option 1. People will be less likely to underutilize a historic building. Either would be a disincentive of a total gut. Councilman Frisch said option one doesn’t allow it to be taken out. Councilwoman Mullins said the simpler ones are more effective and enforceable. Councilman Frisch asked does staff have a problem with option 2 if it could be executed in a reasonable way. Ms. Garrow replied we do not regulate interiors thought the HP process. We were excited by this idea. We have found any time you introduce another set of paperwork there can be more likelihood of error. The simpler path tends to make the most sense. If council is interested in the deed restriction we can add it. If it is too complicated we can come back for amendments in the future. Councilman Myrin said it makes sense. Executing it does not seem like too much of a challenge. I don t think the quantity of these will be too many. Ms. Garrow replied we can set up a process. If you are interested in this flexibility it is fine, but our recommendation is option 1. Councilwoman Mullins said I support the simpler solution. The other is what is the applicant anticipating. The revisions are partly to make it clearer to the applicant what they can and can’t do. Councilman Myrin asked does one say you can’t take out the 2nd floor. Ms. Simon said it is related to floor area. You can’t remove more than half. Councilman Myrin said then they can move the floor area. While it is harder to manage, option 2 results in a smaller project. 2 will result is a smaller bubble if you aren’t able to use any of the FAR. Ms. Garrow said both result in less. One is a prohibition, 2 is a deed restriction. Councilman Frisch said only option 1 can be larger than the physical structure. My original conversation was the bubble doesn’t get any larger. That is what I want to support. Neither options gets us there. Ms. Garrow said right now you can make interior changes and magically find floor area and add it anywhere on the property. We are adding a restriction that is more strict for historic resources than a non historic. If you are removing more than half the floor area you can’t do it. Option 2 is if you are removing more than half you can but it will permanently deed restrict it. We are trying to be more strict. We are adding something that is stricter for historic than non. Councilman Myrin asked why is it too complicated to make option two more simple. 60 Regular Meeting Aspen City Council May 13, 2019 16 Whatever you remove you don’t get credit for. If you take out 10, 49 or 60 it doesn’t credit. Ms. Simon said we said you can go up to 49% and it is ok. I don’t think Bill was looking to make it more restrictive. Councilman Frisch said that is a whole different discussion that Bert and I thought we were having. Ms. Garrow said based off of all the feedback we are making it a lot better than it is today. Ms. Simon said there use to be a volume calculation but we got rid of it. This is a step forward while trying to limit relocation of floor area. Councilwoman Mullins said I think we made some significant changes. We can always look at them again. I support the more incremental approach. There is a danger putting everything in at once. Ms. Simon said we have design guidelines that don’t let you more than double the mass. Councilman Frisch said what is the reason we should think about doing 2. It allows someone to still get 50% larger. Ms. Simon said option 2 lets you go past the 50% demo but only recoup 50%. Councilman Myrin said I’m leaning towards option 2. Ms. Simon said they would be better off selling a TDR than sterilizing the floor area. Councilman Frisch said option 1 is simpler but we lose some creativity for an owner as to how they want to configure their house. Mayor Skadron said I have to stay with staff recommendation on this. Councilman Myrin said I’m leaning towards option 2. Councilman Frisch said this was recommended for creativity. Mayor Skadron said I’m not opposed to option 2 but sensitive to how we manage the program. Ms. Simon said I am concerned with tightening this up too much. Councilman Frisch said that is where option 2 allows for more flexibility. Ms. Simon said option 1 is able to accomplish much more than we are now while allowing us to manage it. Councilman Myrin said in Bill’s email it said allow removable on an interior floor as long as the floor area is not available. Ms. Simon said that is how we go to the deed restriction. Councilwoman Mullins said one of the challenges is these properties are not redeveloped once. What I’m hearing is it could get really messy trying to track these deed restrictions. Councilman Myrin said we have a program where we take away square footage with the TDR program and manage that. We must have some tracking program. Why can we track that and not this. Councilwoman Mullins said with TDRs you are talking 250 sq ft increments and it is a fairly simple program. Ms. Garrow said the tracking is in our office. We track TDRs, AH credits, demolition by parcel and building. We are creating something else that is very complicated to track. Councilman Frisch said I’m fine with option one for now. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilwoman Mullins moved to adopt Ordinance #6, Series of 2019; seconded by Councilman Frisch. Roll call vote. Councilmembers Mullins, yes; Myrin, no; Frisch, yes; Mayor Skadron, yes. Motion carried. Councilwoman Mullins moved to adjourn at 9:50 pm; seconded by Councilman Frisch. All in favor, motion carried. Linda Manning City Clerk 61 Page 1 of 3 MEMORANDUM TO:Mayor and City Council FROM:CJ Oliver, Environmental Health and Sustainability Director THROUGH:Jessica Garrow, Community Development Director MEETING DATE:May 20, 2019, 5PM RE:Ordinance #14 Series of 2019- Banning the Sale of Flavored Tobacco and Nicotine Productsin Aspen UPDATES FROM FIRST READING: Ordinance #14, Series 2019 passed on First Reading at the regular City Council meeting on May 13th. Staff were directed to bring two versions of the ordinance back for consideration at the Public Hearing on May 20th, the existing version and a second which would ban only vaping liquids which contain a characterizing flavor. Staff will also present information related to the safety comparison between vaping and smoking along with information on what other jurisdictions in the valley are currently doing related to restrictions on tobacco and nicotine products during the May 20th meeting. SUMMARY: Youth tobacco and e-cigarette users are particularly attracted to flavored nicotine products. From the packaging and marketing of the products to the flavors themselves, they are geared towards youth and adolescents and they are the preferred product among younger users. Candy and fruit flavored cigarettes were banned by the Family Smoking Prevention and Tobacco Control Act in 2009 but menthol cigarettes, flavored chewing tobacco and e-cigarette cartridges/pods were not included in the ban and are available for purchase today. Restricting the sale of flavored nicotine products in Aspen would create an additional barrier for all users trying to obtain these products and couldplay a preventative role in youth picking up a tobacco or vaping habit. Aspen’s existing regulations, particularly raising the age to purchase tobacco/nicotine products to 21, along with a significant tax on tobacco and nicotine are also significant measures to decrease local accessibility to these items to our youth. STAFF RECOMMENDATION: Staff recommends approval of the proposed Ordinance, at the Public Hearing. BACKGROUND: During the March 12th, 2019 work session with Aspen City Council, direction was providedto craft an ordinance that banned the sale of all flavored nicotine products in Aspen including vaping liquids, flavored cigarettes and cigars as well as flavored chewing tobacco. 62 Page 2 of 3 Additionally, Council directed staff to reach out to flavored tobacco retailers to let them know about the proposed ban on flavored products. Staff returned to Aspen City Council on May 6 th to update City Council on the results of the outreach efforts and request direction on how to move ahead based on the additional information. Several public health officials from state and local governments, local physicians, and school administrators spoke at the meeting in favor of a ban on the sale of flavored tobacco and nicotine products. Tobacco retailers in Aspen were resistant to the notion of a full flavored tobacco product ban due to the impact that it would have on their sales. The retailers did indicate that that they would support a vaping liquid ban. One of the retailers has proactively pulled vaping products from their shelves as a measure to protect youth health and another indicated that since the passing of Tobacco 21 in Aspen their sales of vaping products are low. DISCUSSION:Public health officials at the county and state levels encourage implementing a ban on all flavored nicotine products as it would provide the greatest level of public health protection. Officials from both Pitkin County and CDPHE have indicated that they support moving forward with a fullban because it also offers a stronger model for other communities to implement and it more thoroughly considers broader equity issues. Written comments from various interested parties who support a full ban on flavored nicotine products are provided as attachments to this memo. In brief, the information available on youth usage rates for e-cigarettes and tobacco use in the Aspen area show a concerning trend, and public health professionals want to take steps to get in front of this trend as soon as possible. Anecdotally, the change to Tobacco 21 has resulted in far fewer youths purchasing tobacco products in Aspen stores. This was a change that will have lasting positive results for the community, particularly youth. An additional action that could also make a difference is to restrict the sale of the items that are most desirable to youth consumers, the products that a significant majority of youth and young adult tobacco users report was their first tobacco or e-cigarette product -flavored tobacco and nicotine. There are still significant challenges related to restricting youth access to these products as they can be easily purchased online as well as being available in unincorporated areas of Pitkin County outside of the Aspen city limits. Pitkin County has indicated that they will begin to pursue similar restrictions to what Aspen currently has in place including Tobacco 21, retail tobacco licenses as well as potentially looking into a tobacco tax. A flavor ban in not currently on Pitkin County’s list for future actions. FINANCIAL/BUDGET IMPACTS: A full ban on all flavored tobacco will likely have a significant impact on tobacco sales at the retail level as described by the retailers that staff spoke with. That would also have a likely impact on tobacco sales tax dollars collected in Aspen, which will be used to help fund efforts for substance use and cessation programs along with mental health systems. 63 Page 3 of 3 NEXT STEPS: If Ordinance #14, Series 2019 enacting a ban on some or all flavored tobacco products, the ban will go into effect on 1/1/2020. Staff will work to ensure the community and businesses understands the ban and its implementation. Additionally, staff will return to council in the Summer of 2019 to present recommendations for the best uses for the tobacco tax dollars that have been collected through the City tax on tobacco and nicotine products. The recommendations will fit into the buckets that Aspen City Council identified as targets for these dollars when the local tax was passed. Those buckets include substance use prevention and cessation,as well as mental health. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to adoptOrdinance #14,Series of 2019, adopting a ban on flavored tobacco and nicotine products in the City of Aspen.” ATTACHMENTS: Attachment A- Ordinance#14Series 2019 Attachment B- Flavor Danger (Provided by Pitkin County Public Health) Attachment C-Written comments from Dr. Kim Scheuer Attachment D- Resolution on Flavored Tobacco Ban, Aspen Valley Hospital District Attachment E- Colorado School of Public Health Letter Attachment F- Public Health Partners Letter Attachment G- Letter from Aspen High School Attachment H- Letter from School District Nurse Attachment I- Letter From Mike Haisfield 64 1 ORDINANCE NO. 14 (Series 2019) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH AND QUALITY OF ENVIRONMENT - TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF ELECTRONIC SMOKING DEVICE FLAVORING IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS WHEREAS, Aspen area students report vaping rates among the highest in the nation. WHEREAS, 81% of youth who have ever used a tobacco product report that the first tobacco product was flavored. WHEREAS, flavored nicotine products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco and nicotine products. WHEREAS, the full risk of vaping products is still largely unknown at this time. WHEREAS, the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011and 2015. WHEREAS, nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in thousands of youth-appealing flavors, such as cotton candy and bubble gum. WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of the public health, safety, and welfare to reduce the appeal of tobacco to youth and to reduce the likelihood that youth will become tobacco users by prohibiting Tobacco Product Retailers from selling, offering for sale, or possessing with the intent to sell, flavored nicotine products. NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH AND QUALITY OF ENVIRONMENT – IS HEREBY AMENDED TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF ELECTRONIC SMOKING DEVICE FLAVORING IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS, WHICH CHAPTER SHALL READ AS FOLLOWS: 65 2 Chapter 13.26 RESTRICTIONS ON THE SALE OF ELECTRONIC SMOKING DEVICE FLAVORING IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS Section 13.26.020 DEFINITIONS A. "Characterizing Flavor"means a Distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, spice; provided, however, that a Tobacco Product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a Distinguishable taste or aroma or both, as described in the first sentence of this definition that constitutes a characterizing flavor. B. “Cigar” means any roll of tobacco other than a Cigarette wrapped entirely or in part in tobacco or any other substance containing tobacco. For purposes of this Chapter, cigar includes, but is not limited to tobacco products known or labeled as “cigar,” “cigarillo,” or “little cigar.” C. “Cigarette”means any product that contains tobacco or nicotine that is intended to be burned or heated under ordinary conditions of use, and consists of or contains: 1)any roll of tobacco wrapped in paper or in any substance not containing tobacco; 2)tobacco in any form that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling, is likely to be offered to, or purchased by Consumers as a cigarette; or 3)any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, Consumers as a cigarette described above. 4)the term includes all “roll-your-own,” i.e., any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by Consumers as tobacco for making cigarettes. D. "Constituent"means any ingredient, substance, chemical, or compound other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product, including an Electronic Smoking Device, during the processing, manufacture, or 66 3 packaging of the Tobacco Product, including an Electronic Smoking Device, that imparts a Characterizing Flavor. E. “Consumer”means an individual who purchases a Tobacco Product or Tobacco Paraphernalia for consumption and not for Sale to another. F. "Distinguishable"means perceivable by either the sense of smell or taste. G. “Electronic Smoking Device”means any product used by an individual to simulate smoking in the delivery of nicotine or any other substance, even if marketed as nicotine-free, through inhalation from the product. Electronic smoking device includes any refill, cartridge or component part of a product, whether or not marketed or sold separately. Electronic smoking device does not include any product that has been approved or certified by the United States Food and Drug Administration for sale as a tobacco cessation product or for other medically approved or certified purposes. H. “Establishment"means any store, stand, booth, concession or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration, Tobacco Products or Tobacco Paraphernalia including, but not limited to any retail location, stand, outlet, vehicle, cart, vending machine, structure or any grounds where Tobacco Products and/or Tobacco Paraphernalia are sold or offered for exchange. I. "Flavored Tobacco Product"means any Tobacco Product, including Electronic Smoking Device flavoring, that contains a Constituent or that imparts a Characterizing Flavor. J. “Ingredient” means any substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture or packing of the Tobacco Product. K. "Labeling"means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its Packaging. L. “License”means a Tobacco Product Retail License. M. “Manufacturer” means a Person, including any repacker or relabeler, who manufacturers, fabricates, assembles, processes, or labels a Tobacco Product; or imports a finished Tobacco Product for Sale or distribution into the United States. N. "Packaging"means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a Tobacco Product(s) is sold or offered for Sale to a consumer. O. “Person”in this Chapter means any natural person, partnership, cooperative association, corporation, limited liability company, personal representative, receiver, trustee, assignee or other legal entity. P. “Sale or Sell”means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner, for any form of consideration or by any means whatsoever. 67 4 Q. “Tobacco Paraphernalia”means any item designed for the consumption, use, or preparation of Tobacco Products. R. “Tobacco Product”means: 1. any product which contains, is made or derived from tobacco or used to deliver nicotine, synthetic nicotine or other substances intended for human consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to Cigarettes, Cigars, little Cigars, chewing tobacco, pipe tobacco, snuff, bidis, snus, mints, hand gels; and 2. an Electronic Smoking Device; 3. notwithstanding any provision of subsections 1. and 2., above to the contrary, “Tobacco Product” includes any component, part, accessory or associated Tobacco Paraphernalia of a Tobacco Product whether or not sold separately. 4. The term “Tobacco Product” does not include: (i)any product that contains marijuana; and (ii)any product made from or derived from tobacco and approved by the Food and Drug Administration (FDA) for use in connection with cessation of smoking. S. “Tobacco Product Retailer”means any person who engages in the Sale of Tobacco Products and or Flavored Tobacco Products directly to the public from any store, stand, booth, concession, outlet, vehicle, cart, vending machine, structure or any grounds or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration. T. “Tobacco Product Retailing” means the act of selling, offering for sale or exchanging or offering to exchange for any form of consideration, Tobacco Products and or Flavored Tobacco Products. Section 13.26.030 SALE OR DISTRIBUTION OF ELECTRONIC SMOKING DEVICE OR CONSTITUENT THEREOF THAT IMPARTS OR CONTAINS A CHARACTERIZING FLAVOR PROHIBITED A.The Sale or distribution by a Tobacco Product Retailer of an Electronic Smoking Device that contains a Constituent or that imparts or contains a Characterizing Flavor, including any refill, cartridge or component part of a product, whether or not marketed or sold separately, is prohibited. B. A Tobacco Product Retailer, or any of the Tobacco Product Retailer’s agents, or employees shall not sell, offer for sale or possess with the intent to sell an Electronic Smoking Device that contains a Constituent or that imparts or contains a Characterizing Flavor, including any refill, cartridge or component part of a product, whether or not marketed or sold separately. 68 5 C.There shall be a rebuttable presumption that an Electronic Smoking Device or a Constituent thereof imparts or contains a Characterizing Flavor if a Manufacturer or any of the Manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to Consumers or to the public that the Electronic Smoking Device or a Constituent thereof has or produces a Characterizing Flavor, including, but not limited to, text, color; and/or images on the product's Labeling or Packaging that are used to explicitly or implicitly communicate that the Electronic Smoking Device or a Constituent thereof has a Characterizing Flavor. D.There shall be a rebuttable presumption that a Tobacco Product Retailer in possession of four or more Electronic Smoking Devices or Constituents thereof that imparts or contains a Characterizing Flavor, including any refill, cartridge or component part of a product, whether or not marketed or sold separately, including but not limited to individual products, packages of products, or any combination thereof, possesses such Electronic Smoking Devices or Constituents thereof with the intent to Sell or offer said products for Sale. Section 13.26.040 COMPLIANCE MONITORING A. Enforcement of this Chapter shall be monitored by the local police department and the City of Aspen Environmental Health Department. B.All Tobacco Product Retailers shall be subject to a compliance check for adherence to the provisions of this Chapter at least twice a year with violators being checked more frequently until two (2) consecutive checks are completed without a violation. Section 13.26.050 VIOLATIONS, PENALTIES AND FINES. A. Licensee Penalties and Fines. In addition to any other penalty authorized by law, if the City of Aspen Municipal Court determines, based on the evidence, that a Tobacco Product Retail Licensee, or any of the Licensee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this Chapter, or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law related to the Sale of Electronic Smoking Devices or Constituent thereof as set forth herein the following penalties shall be imposed on the Licensee: 1.Upon the first violation, a penalty of five hundred dollars ($500) 2.Upon the second violation within thirty-six (36)months, a penalty of one thousand five hundred dollars ($1500). 3.Upon the third violation within thirty-six (36)months, court appearance shall be mandatory, and the Court may issue a penalty of up to the maximum amount allow by law or imprisonment for a period of up to one (1) year or both such fine and imprisonment at the discretion of the court. 4. Each day of violation constitutes a separate offense. 69 6 B. Suspension or Revocation of Tobacco Product Retail License. In addition to the penalties set forth about, the City of Aspen may suspend or revoke a Tobacco Product Retailer license issued pursuant to Chapter 13.25, pursuant to the terms set forth in such Chapter 13.25. A Tobacco Product Retailer whose License has been suspended or revoked pursuant to Chapter 13.25: 1.Shall not display Tobacco Products in public view during the time when the License is suspended or revoked; and 2.Advertisements related to Tobacco Products that promote the sale or distribution of said products from the location that could lead a reasonable person to believe that such products can be obtained from the location shall not be displayed. C. Remedies Cumulative. Remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. In addition to the remedies provided by this Chapter or by any other law, any violation of this Chapter may be remedied by a civil action, brought by the City Attorney including, but not limited to injunctive relief. D. Causing, permitting, aiding, abetting or concealing a violation of any provision of this Chapter shall cause the offender to be subject to the penalties set forth herein or in the Aspen Municipal Code. Section 13.26.070 NO CONFLICT WITH FEDERAL OR STATE LAW. Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. Section 2: Litigation This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3: Severability If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. 70 7 Section 4: Effective Date. This Ordinance shall become effective as of January 1, 2020 and in full force and effect on and after that date. Section 5: Public Hearing A public hearing on the ordinance shall be held on the 20th day of May 2019 in the City Council Chambers, Aspen City Hall, Aspen, Colorado, seven (7) days prior to which hearing a public notice of the same was published pursuant to the Aspen Municipal Charter. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 13th day of May 2019. _______________________ Steven Skadron, Mayor ATTEST: _____________________________ Linda Manning, City Clerk FINALLY,adopted, passed and approved this 20th day of May 2019. _______________________ Steven Skadron, Mayor ATTEST: _______________________ Linda Manning, City Clerk APPROVED AS TO FORM: __________________________ James R. True, City Attorney 71 1 ORDINANCE NO. 14 (Series 2019) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH AND QUALITY OF ENVIRONMENT - TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF FLAVORED TOBACCO PRODUCTS, INCLUDING MENTHOL, IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS WHEREAS, each day, about 2,500 children in the United States try their first cigarette; and another 8,400 children under 18 years of age become new regular, daily smokers. WHEREAS, 81% of youth who have ever used a tobacco product report that the first tobacco product was flavored. WHEREAS, flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products. WHEREAS, menthol cools and numbs the throat to reduce throat irritation and make the smoke feel smoother, making menthol cigarettes an appealing option for youth who are initiating tobacco use. WHEREAS,flavorings such as mint and wintergreen in smokeless tobacco products encourage new users to start with milder flavors and progress to more full-bodied, less flavored products. WHEREAS, young people are much more likely than adults to use menthol-, candy- and fruit-flavored tobacco products, including not just cigarettes but also cigars, cigarillos, and hookah tobacco. WHEREAS, the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011and 2015. WHEREAS, nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in thousands of youth-appealing flavors, such as cotton candy and bubble gum. WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of the public health, safety, and welfare to reduce the appeal of tobacco to youth and to reduce the likelihood that youth will become tobacco users by prohibiting Tobacco Product Retailers from selling, offering for sale, or possessing with the intent to sell, flavored tobacco products. 72 2 NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. TITLE 13 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN - HEALTH AND QUALITY OF ENVIRONMENT – IS HEREBY AMENDED TO ADD A NEW CHAPTER 13.26 ENTITLED: RESTRICTIONS ON THE SALE OF FLAVORED TOBACCO PRODUCTS, INCLUDING MENTHOL, IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS, WHICH CHAPTER SHALL READ AS FOLLOWS: Chapter 13.26 RESTRICTIONS ON THE SALE OF FLAVORED TOBACCO PRODUCTS, INCLUDING MENTHOL, IN TOBACCO PRODUCT RETAIL ESTABLISHMENTS Section 13.26.020 DEFINITIONS A. "Characterizing Flavor"means a Distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing flavors include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, spice; provided, however, that a Tobacco Product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a Distinguishable taste or aroma or both, as described in the first sentence of this definition that constitutes a characterizing flavor. B. “Cigar” means any roll of tobacco other than a Cigarette wrapped entirely or in part in tobacco or any other substance containing tobacco. For purposes of this Chapter, cigar includes, but is not limited to tobacco products known or labeled as “cigar,” “cigarillo,” or “little cigar.” C. “Cigarette”means any product that contains tobacco or nicotine that is intended to be burned or heated under ordinary conditions of use, and consists of or contains: 1)any roll of tobacco wrapped in paper or in any substance not containing tobacco; 2)tobacco in any form that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling, is likely to be offered to, or purchased by Consumers as a cigarette; or 73 3 3)any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, Consumers as a cigarette described above. 4)the term includes all “roll-your-own,” i.e., any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by Consumers as tobacco for making cigarettes. D. "Constituent"means any ingredient, substance, chemical, or compound other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a Tobacco Product during the processing, manufacture, or packing of a Tobacco Product. E. “Consumer”means an individual who purchases a Tobacco Product or Tobacco Paraphernalia for consumption and not for Sale to another. F. "Distinguishable"means perceivable by either the sense of smell or taste. G. “Electronic Smoking Device”means any product containing or delivering nicotine intended for human consumption that can be used by an individual to simulate smoking in the delivery of nicotine or any other substance, even if marketed as nicotine-free, through inhalation from the product. Electronic smoking device includes any refill, cartridge or component part of a product, whether or not marketed or sold separately. Electronic smoking device does not include any product that has been approved or certified by the United States Food and Drug Administration for sale as a tobacco cessation product or for other medically approved or certified purposes. H. “Establishment"means any store, stand, booth, concession or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration, Tobacco Products or Tobacco Paraphernalia including, but not limited to any retail location, stand, outlet, vehicle, cart, vending machine, structure or any grounds where Tobacco Products and/or Tobacco Paraphernalia are sold or offered for exchange. I. "Flavored Tobacco Product"means any Tobacco Product, including Cigarettes, that contains a Constituent or that imparts a Characterizing Flavor. J. “Ingredient” means any substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture or packing of the Tobacco Product. K. "Labeling"means written, printed, pictorial, or graphic matter upon any Tobacco Product or any of its Packaging. L. “License”means a Tobacco Product Retail License. M. “Manufacturer” means a Person, including any repacker or relabeler, who manufacturers, fabricates, assembles, processes, or labels a Tobacco Product; or imports a finished Tobacco Product for Sale or distribution into the United States. 74 4 N. "Packaging"means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a Tobacco Product(s) is sold or offered for Sale to a consumer. O. “Person”in this Chapter means any natural person, partnership, cooperative association, corporation, limited liability company, personal representative, receiver, trustee, assignee or other legal entity. P. “Sale or Sell”means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner, for any form of consideration or by any means whatsoever. Q. “Tobacco Paraphernalia”means any item designed for the consumption, use, or preparation of Tobacco Products. R. “Tobacco Product”means: 1. any product which contains, is made or derived from tobacco or used to deliver nicotine, synthetic nicotine or other substances intended for human consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to Cigarettes, Cigars, little Cigars, chewing tobacco, pipe tobacco, snuff, bidis, snus, mints, hand gels; and 2. an Electronic Smoking Device; 3. notwithstanding any provision of subsections (1) and 2) above to the contrary, “Tobacco Product” includes any component, part, accessory or associated Tobacco Paraphernalia of a Tobacco Product whether or not sold separately. 4. The term “Tobacco Product” does not include: (i)any product that contains marijuana; and (ii)any product made from or derived from tobacco and approved by the Food and Drug Administration (FDA) for use in connection with cessation of smoking. S. “Tobacco Product Retailer”means any person who engages in the Sale of Tobacco Products and or Flavored Tobacco Products directly to the public from any store, stand, booth, concession, outlet, vehicle, cart, vending machine, structure or any grounds or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration. T. “Tobacco Product Retailing” means the act of selling, offering for sale or exchanging or offering to exchange for any form of consideration, Tobacco Products and or Flavored Tobacco Products. Section 13.26.030 SALE OR DISTRIBUTION OF FLAVORED TOBACCO PRODUCTS PROHIBITED. 75 5 A.The Sale or distribution by a Tobacco Product Retailer of a Flavored Tobacco Product(s) is prohibited. B. A Tobacco Product Retailer, or any of the Tobacco Product Retailer’s agents, or employees shall not sell, offer for sale or possess with the intent to sell a Flavored Tobacco Product(s). C.There shall be a rebuttable presumption that a Tobacco Product is presumed to be a Flavored Tobacco Product if a Manufacturer or any of the Manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to Consumers or to the public that the Tobacco Product has or produces a Characterizing Flavor, including, but not limited to, text, color; and/or images on the product's Labeling or Packaging that are used to explicitly or implicitly communicate that the Tobacco Product has a Characterizing Flavor. D.There shall be a rebuttable presumption that a Tobacco Product Retailer in possession of four or more Flavored Tobacco Products, including but not limited to individual Flavored Tobacco Products, packages of Flavored Tobacco Products, or any combination thereof, possesses such Flavored Tobacco Products with the intent to Sell or offer said products for Sale. Section 13.26.040 COMPLIANCE MONITORING A. Enforcement of this Chapter shall be monitored by the local police department and the City of Aspen Environmental Health Department. B.All Tobacco Product Retailers shall be subject to a compliance check for adherence to the provisions of this Chapter at least twice a year with violators being checked more frequently until two (2) consecutive checks are completed without a violation. Section 13.26.050 VIOLATIONS, PENALTIES AND FINES. A. Licensee Penalties and Fines. In addition to any other penalty authorized by law, if the City of Aspen Municipal Court determines based on the evidence, that a Tobacco Product Retail Licensee, or any of the Licensee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this Chapter, or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any law related to the Sale of Flavored Tobacco Products the following penalties shall be imposed on the Licensee: 1.Upon the first violation, a penalty of five hundred dollars ($500) 2.Upon the second violation within thirty-six (36)months, a penalty of one thousand five hundred dollars ($1500). 3.Upon the third violation within thirty-six (36)months, court appearance shall be mandatory, and the Court may issue a penalty of up to the maximum amount allow by 76 6 law or imprisonment for a period of up to one (1) year or both such fine and imprisonment at the discretion of the court. 4. Each day of violation constitutes a separate offense. B. Suspension or Revocation of Tobacco Product Retail License. In addition to the penalties set forth about, the City of Aspen may suspend or revoke a Tobacco Product Retailer license issued pursuant to Chapter 13.25, pursuant to the terms set forth in such Chapter 13.25. A Tobacco Product Retailer whose License has been suspended or revoked pursuant to Chapter 13.25: 1.Shall not display Flavored Tobacco Products in public view during the time when the License is suspended or revoked; and 2.Advertisements related to Flavored Tobacco Products that promote the sale or distribution of said products from the location that could lead a reasonable person to believe that such products can be obtained from the location shall not be displayed. C. Remedies Cumulative. Remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. In addition to the remedies provided by this Chapter or by any other law, any violation of this Chapter may be remedied by a civil action, brought by the City Attorney including, but not limited to injunctive relief. D. Causing, permitting, aiding, abetting or concealing a violation of any provision of this Chapter shall cause the offender to be subject to the penalties set forth herein or in the Aspen Municipal Code. Section 13.26.070 NO CONFLICT WITH FEDERAL OR STATE LAW. Nothing in this Chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. Section 2: Litigation This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3: Severability If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. 77 7 The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 4: Effective Date. This Ordinance shall become effective as of January 1, 2020 and in full force and effect on and after that date. Section 5: Public Hearing A public hearing on the ordinance shall be held on the 20th day of May 2019 in the City Council Chambers, Aspen City Hall, Aspen, Colorado, seven (7) days prior to which hearing a public notice of the same was published pursuant to the Aspen Municipal Charter. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 13th day of May 2019. _______________________ Steven Skadron, Mayor ATTEST: _____________________________ Linda Manning, City Clerk FINALLY,adopted, passed and approved this ___ day of ____, 2019. _______________________ Steven Skadron, Mayor ATTEST: _______________________ Linda Manning, City Clerk APPROVED AS TO FORM: __________________________ James R. True, City Attorney 78 FLAVOR DANGER Today, tobacco products come in hundreds of fruit flavors such as little cigars, chewing tobacco, hookah tobacco, or liquids for e-cigarettes. Flavors do not reduce the harm of tobacco products. In fact, flavors can mask the harsh taste of tobacco, making it easier to get hooked on nicotine. Once-Secret Tobacco Industry Documents Reveal Youth Are Targeted With Flavors · “It's a well known fact that teenagers like sweet products…”1 · “New users of smokeless tobacco ... are most likely to begin with products that are milder tasting, more flavored…”2 · “Menthol brands have been said to be good starter products because new smokers appear to know that menthol covers up some of the tobacco taste and they already know what menthol tastes like, vis-à-vis candy”3 Flavored Tobacco Products Attracting (and Addicting) Youth and Young Adults · At least two-thirds of youth tobacco users report using tobacco products “because they come in flavors I like .” 4 · Of teens and young adults who ever used tobacco, 81% of teens and 86% of young adults reported that their first product was flavored.4 Local E-Cigarette Use · Regular use of e-cigarettes among high school students has more than doubled from 21% to 45%.6 · More than 2/3 of high school seniors and 1/5 of 8th graders have tried e-cigarettes.6 · Colorado has the highest rates of e-cigarette use among youth in the nation, and the Roaring Fork Valley has some of the highest rates in in the state. 6 7 · Youth who use e-cigarettes are 4x more likely to pick up cigarettes. Aspen HAS seen an increase in cigarette use among high school students from 2015 to 2017.6 8 Current Youth Use of Flavored Tobacco · More than two-thirds of high school e-cigarette users are using flavored e-cigarettes.5 · 51% of youth e-cigarette use is mint or menthol.5 · 81% of youth who ever tried tobac- co chose flavored tobacco as their first tobacco product.5 79 Citations and References 1: SWAT (Students Working Against Tobacco) Florida Tobacco Industry Quotes and Facts Related to Flavor Tobacco http://swatflorida.com/uploads/fightresource/Flavored%20Tobacco%20Industry%20Quotes%20and%20Facts.pdf 2: SWAT (Students Working Against Tobacco) Florida Tobacco Industry Quotes and Facts Related to Flavor Tobacco http://swatflorida.com/uploads/fightresource/Flavored%20Tobacco%20Industry%20Quotes%20and%20Facts.pdf 3: Tobacco Control, January 2011, Menthol cigarettes and smoking initiation: a tobacco industry perspective https://tobaccocontrol.bmj.com/content/tobaccocontrol/20/Suppl_2/ii12.full.pdf 4: Ambrose, BK, et al., “Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014,” JAMA. 2015;314(17):1871-1873. 5: National Youth Tobacco Survey, 2018. 6: Healthy Kids Colorado Survey, 2017. 7: U.S. Food and Drug Administration (FDA) 2018 NYTS Data: A Startling Rise in Youth E-cigarette Use https://www.fda.gov/TobaccoProducts/PublicHealthEducation/ProtectingKidsfromTobacco/ucm625887.htm 8: Healthy Kids Colorado Survey, 2015. 9: Flavored Tobacco Products, Counter Tobacco https://countertobacco.org/resources-tools/evidence-summaries/flavored- tobacco-products/ 10: Farley SM, Johns M. New York City flavoured tobacco product sales ban evaluation. Tobacco Control 2017;26:78-84. 11: States and Localities with Flavored Tobacco Restrictions, Campaign for Tobacco-Free Kids, 2019. Flavor Danger Fact Sheet, Updated January 2019 Federal Law on Flavored Tobacco Candy and fruit-flavored cigarettes were banned under the Family Smoking Prevention and Tobacco Control Act in 2009. However, all of the products shown below, including menthol cigarettes, non -cigarette smoked tobacco products and smokeless products, were not included in the ban. Impact of Flavored Tobacco Restrictions · The 2009 Family Smoking Prevention and Tobacco Control Act ban on flavored cigarettes was associat- ed with a 17% reduction in the probability of middle and high school youth becoming smokers and a 58% reduction in cigarettes smoked by current youth smokers.9 · In 2009, New York City passed a law restricting the sale of most flavored tobacco. By 2013, product sales decreased by 87%.10 Communities with Flavored Tobacco Restrictions Two states and over 180 communities have passed restrictions on the sale of flavored tobacco products (laws differ according to product and store type).11 What the City of Aspen Can Do Pass a comprehensive policy restricting the sale of all flavored tobacco products. · Restrict all flavors, including mint and menthol, for all types of tobacco products, including e-cigarettes · Restrict at all access points, including general stores and adult-only retailers. For more information contact Risa Turetsky Pitkin County Public Health (970) 618-1781 80 April 30, 2019 To: CJ Oliver City Council cjoliver@cityofaspen.com Regarding: Banning Flavored Tobacco Products Dear CJ Oliver and the Members of the City Council, I was asked to write you about any comments I may have on the proposal to ban flavored tobacco products in the City Of Aspen. As you may be aware, flavored tobacco products are marketed towards children to get them addicted at a young age. Unfortunately, children are particularly susceptible to the damages of tobacco; cancers including lung, tongue, mouth, throat, esophagus, pancreas, in addition to hypertension, strokes, heart disease, emphysema, chronic bronchitis, frequent colds, cavities etc. Children are also more vulnerable to the current marketing strategies used to sell products. Flavors do not mask the harms of tobacco but rather make the products less harsh so they can become easier to use more frequently. In fact, research shows, many children would not use nicotine products if it weren’t for the availability of tobacco in flavors they liked. Unfortunately, the children of The Roaring Fork Valley and Aspen are not immune to this and we have seen a significant increase in tobacco users over the last several years. This includes tobacco in the forms of vaping and of cigarette use. This is a health issue that is influenced by greed and disregard of public health. And it targets our most vulnerable citizens. Other cities have successfully banned flavored tobacco products resulting in a decrease in use among youth. Aspen should too. Sincerely yours, Kim Scheuer, MD Board Certified Family Practice, Board Certified Lifestyle Medicine, www.dokslifestylemedicine.com 970 309 8528 81 82 May 1, 2019 Dear Aspen City Council: Thank you for considering legislation that will provide further protections for Aspen youth from the harms of tobacco use and for, once again, providing a model policy for the rest of Colorado. The vaping epidemic seen across our state has drawn attention to the issue of flavored tobacco products and how flavors are used to hook kids on nicotine and create lifetime nicotine addicts and customers. Below we have provided information that we believe is compelling enough for the Aspen City Council to accept nothing less than a full ban on all flavored tobacco products. There is simply no other way to protect all youth from this dangerous and deadly addiction. Vaping • More than two-thirds (67.8 percent) of high school e-cigarette users are using flavored e- cigarettes. 1 • JUUL says it is committed to preventing youth use of its products but the company’s 80-plus lobbyists in 50 states are fighting proposals to ban flavored e-cigarette pods, which are big draws for teenagers; pushing legislation that includes provisions denying local governments the right to adopt strict vaping controls; and working to make sure that bills to discourage youth vaping do not have stringent enforcement measures.2 • Colorado has the highest e-cigarette use in the country and Health Region 12 (which includes Aspen) is among the top in the state.3,4 Menthol Cigarettes • Cigarette smoking causes more than 480,000 deaths each year in the United States. This is nearly one in five deaths.5 • It is estimated that 91,000 kids now under 18 and alive in Colorado will ultimately die prematurely from smoking.6 • Federal law prohibits the use of characterizing flavorings in cigarettes, except for menthol. 1 FDA 2018 2 NYTimes.com: In Washington, Juul Vows to Curb Youth Vaping. Its Lobbying in States Runs Counter to That Pledge.https://nyti.ms/2V27I26 3U.S. Food and Drug Administration (FDA) 2018 NYTS Data: A Startling Rise in Youth E-cigarette Use https://www.fda.gov/TobaccoProducts/PublicHealthEducation/ProtectingKidsfromTobacco/ucm625887.htm 4 Healthy Kids Colorado Survey, 2015 5 https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/effects_cig_smoking/index.htm 6 The Health Consequences of Smoking: 50 Years of Progress. A Report of the Surgeon General, 2014 83 • Menthol cigarette smoking is more prevalent among smokers who are young7, female 8, part of a sexual minority 9, or part of a racial or ethnic minority 10. There is also significant menthol use among smokers with mental illness.11 • African-American smokers predominantly use menthol cigarettes. Nearly 9 in 10 African- American smokers (88.5 percent) aged 12 and older use menthol.6 • Tobacco companies have long known of menthol’s ability to mask the harshness associated with cigarette smoke, increase the ease of smoking, and provide a cooling sensation that appeals to many smokers, particularly new smokers.12 • Older industry marketing documents openly discuss the use of flavoring agents in cigarettes to attract the interest of young smokers.12 7 Giovino GA, Villanti AC, Mowery PD, et al. Differential trends in cigarette smoking in the USA: is menthol slowing progress? Tobacco control. 2015;24(1):28-37. 8 Caraballo RS, Asman K. Epidemiology of menthol cigarette use in the United States. Tobacco induced diseases. 2011;9 Suppl 1:S1. 9 Fallin A, Goodin AJ, King BA. Menthol cigarette smoking among lesbian, gay, bisexual, and transgender adults. American journal of preventive medicine. 2015;48(1):93-97 10 Rock VJ, Davis SP, Thorne SL, Asman KJ, Caraballo RS. Menthol cigarette use among racial and ethnic groups in the United States, 2004-2008. Nicotine & tobacco research : official journal of the Society for Research on Nicotine and Tobacco. 2010;12 Suppl 2:S117-124. 11 Hickman NJ, 3rd, Delucchi KL, Prochaska JJ. Menthol use among smokers with psychological distress: findings from the 2008 and 2009 National Survey on Drug Use and Health. Tobacco control. 2014;23(1):7-13. 12 US Surgeon General’s Report, March 8, 2012 84 Other Flavored Tobacco Products • Nearly 81 percent of youth ages 12 to 17 who had ever used a tobacco product reported that the first product they used was flavored.13 • Four of out five youth who were current tobacco product users reported they used a flavored tobacco product.12 • Youth use of flavored hookah products is even higher than youth use of flavored e-cigarettes.14 Older industry marketing documents openly discuss the use of flavoring agents in cigarettes to attract the interest of young smokers • FDA has proposed some restrictions on flavored tobacco products but they are not comprehensive (e.g. exclude menthol) and will likely take years to implement. Therefore local policy is critical for protecting youth. Based on the information above, only a comprehensive flavor ban (that includes all tobacco products) would protect all youth from the predatory practices of big tobacco and e-cigarette manufacturers and their youth-friendly products. 13 https://truthinitiative.org/news/hookah-most-popular-flavored-tobacco-product-among-youth 14 Source: Ambrose BK, Day HR, Rostron B, et al. Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014. Jama. 2015;314(17):1871-1873. 85 Thank you again for taking this important step to protect Colorado’s youth. For more information, please contact the Colorado School of Public Health’s Tobacco Program at 303-724-4236. Sincerely, Jonathan M. Samet, MD, MS Dean and Professor Colorado School of Public Health Cerise Hunt, PhD, MSW Director Center for Public Health Practice Colorado School of Public Health Tracy Doyle, MPH Technical Assistance Coordinator Center for Public Health Practice Colorado School of Public Health 86 WWW.TOBACCOFREEKIDS.ORG April 29, 2019 Mayor Skadron & Aspen Councilmembers, Thank you for leading the way in protecting Colorado’s kids by considering legislation to ban the sale of flavored tobacco in Aspen. Prohibiting the sale of flavored tobacco, including menthol cigarettes, is an important step in protecting Aspen’s children from the unrelenting efforts of the tobacco industry to hook them to a deadly addiction. As you are aware, Aspen is the first community in Colorado to consider such legislation. The policy you adopt has the potential to be modeled across the state and therefore carries a great deal of weight. I ask that you consider the policy implications for all of Colorado as you debate the provisions of a flavor ban in Aspen. Nationally, more than two states and 180 communities have passed restrictions on the sale of flavored tobacco. San Francisco banned the sale of all flavored tobacco products with no retailer exemptions, in 2018. Sacramento is on the verge of doing the same. This is the policy that we support and recommend Aspen adopts for the following reasons: In recent years, there has been an explosion of sweet-flavored tobacco products, especially e-cigarettes and cigars.These products are available in a wide assortment of flavors that seem like they belong in a candy store or ice cream parlor –like gummy bear, cotton candy, wild berry and lemonade. The tobacco industry has a long history of using menthol cigarettes and other flavored products as “starter” product to attract new users, almost all of whom are under 18. Flavors improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners. A government study found that 81 percent of kids who have ever used tobacco products started with a flavored product. In Colorado, more than a quarter of high school students use e-cigarettes, one of the highest rates in the country. According to national data, 97 percent of high school e-cigarette users have used a flavored e-cigarette in the past month.87 WWW.TOBACCOFREEKIDS.ORG Among youth who smoke, more than half are smoking menthol cigarettes. Tobacco industry marketing, advertising, and promotional strategies for menthol cigarettes are often directed at low-income and minority communities, in addition to youth. The tobacco industry spends $140 million annually in Colorado to market its products. We must stay vigilant in protecting Colorado’s kids from the tobacco industry’s outreach and efforts to addict them. This policy will have a positive impact on public health and will save lives. Our organization works within the United States and around the world to advocate for public policies proven to prevent kids from using tobacco, help tobacco users quit and protect everyone from secondhand smoke. A ban on flavored tobacco products is just such a policy that will protect kids and save lives. For more information about our policy priorities, please visit our website, www.tobaccofreekids.org. If you have any questions, please feel free to contact me directly. Thank you again for your leadership and partnership to protect Aspen’s kids. Respectfully, Jodi L. Radke Regional Director Campaign for Tobacco-Free Kids 970-214-4808 jradke@tobaccofreekids.org Rebecca Dubroff State Government Relations Director American Heart Association 1777 S. Harrison St. | Denver | CO | 80210 M 303.880.7788 88 ASPEN HIGH SCHOOL 0235 HIGH SCHOOL ROAD ASPEN, COLORADO 81611 970-429-3539 May 3, 2019 Dear Aspen City Council, Vaping has rapidly become a national problem for teens, and our valley is seeing the impacts of vaping as more young people become addicted. Big tobacco has targeted youth through the allure of flavors; kids do not have to suffer the awful taste of regular cigarettes. Instead, they can ingest the equivalent of one pack of cigarettes per Juul pod in enticing flavors like cotton candy. Parents, students, and educators are worried about the effects of vaping on our community’s youth. We are so grateful that in Aspen you must be 21 to purchase tobacco, but we need to go a step further. Our kids are getting addicted quickly, and realizing, too late, how harmful vaping is, and how difficult it is to stop. A flavor ban, already instituted at Local’s Corner and the AABC Conoco, would help to combat the allure of vaping. AHS has participated in conversations with community and school partners, including our students, from here to Rifle. Our valley has one of the highest tobacco use rates in the state, and vaping is the number one reported substance used at AHS. Our students are clear about what needs to happen: all stores need to be 21 and over for tobacco products, and all stores need to implement a flavor ban. The best way to stop vaping is to never start. Sincerely, Tharyn Mulberry, Principal AHS Sarah Strassburger, Assistant Principal AHS Sarah Strassburger Aspen High School sstrassburger@aspenk12.net 970-925-3760 x1132 89 May 2, 2019 To: CJ Oliver cjoliver@cityofaspen.com Regarding: Flavored Tobacco Products Dear Aspen City Council Members, As the School Nurse of the Aspen School District, I am writing to express my very strong support of the proposal to ban the sale of flavored tobacco products in the City of Aspen. In the school environment, we are teaching, encouraging and practicing healthy behavior choices on a daily basis. We do this with the hope of preventing unhealthy habits and substance addictions in our youth. It is most concerning that products are created and marketed specifically toward adolescents and young adults that have the ability to cause lifelong addiction challenges and the potential for major negative health consequences. A review of current data and literature clearly shows that flavored products increase the sale and usage of tobacco at a younger age. I believe that it is the responsibility of our school and community leaders to create barriers, provide education and make appropriate policy decisions around creating a healthful community at large. Respectfully, Elise Dreher, BSN RN Aspen School District School Nurse 90 To City Council members, My name is Michael Haisfield, and I have been the owner and operator of the Aspen Store convenience store in town since 1996? The Aspen Store employs 20 full and part time employees, and we are one of only two businesses in town that sells tobacco products. I would like to speak about the City Council’s proposal to ban all flavored, mint and menthol tobacco products. I have talked to members of council and the general public and my impression is this has all started in order to protect our youth. In my opinion, vaping and e-cigs are the issue with young adults not the other tobacco products. This ban is imposing restrictions on grown adults, who are, despite assumptions to the contrary, the primary users of flavored tobacco products and should be allowed to make their own decisions. In December 2018 we decided to voluntarily eliminate all Vape and E-cigarette products from our stores here and in our two other down valley convenience stores because we saw a problem with these products in our youth up and down the valley. We took the initiative and were hoping to set the example for others to follow…including the city and county. Let’s try and work together with other communities in the valley as well and really make a difference with teen vaping and e-cig/juul usage. I believe we must educate our youth! As of now there has not ever been a class or seminar to Aspen students on the effects of tobacco. The city has raised over $300,000 from sales tax from tobacco product sales but has not taken any steps on trying to curb a young adult, through informative classes and seminars, from even wanting to try it. A ban won’t stop a young adult for wanting to try a product, especially when it is a car ride (3.6 miles) away, but education on the effects of tobacco most certainly will. Finally, I ask that this ban is reconsidered and for the attention to be directed to other forms of support, not personal taste. We live in a town where there are 7 dispensaries within walking distance that sell all flavors, sizes and packaging of cannabis. Flavored tobacco and chew are just options that a 21 year or over adult has. If this is about youth, than lets focus on those under 18 and what we can do to support and educate them to make smart choices. Sincerely, Mike Haisfield 91 Page 1 of 2 MEMORANDUM TO:Mayor Skadron and City Council FROM:Mike Kraemer, Senior Planner THRU:Jessica Garrow, Community Development Director RE:APCHA Referral Land Use Code Amendment Ordinance 12, Series of 2019. 2nd Reading (public hearing) DATE:May 20th, 2019 SUMMARY: The attached Ordinance amends the City of Aspen Land Use Code to eliminate the references and requirements for Aspen/Pitkin County Housing Authority (APCHA) referrals for land use applications. This amendment is being processed in response to the adoption of amendments to the City of Aspen and Pitkin County APCHA Intergovernmental Agreement (IGA) which will place City Council members on the APCHA Board, potentially creating a conflict of interest during the land use process. First reading of the Text Amendment Ordinance was heard and passed on May 13th, 2019. STAFF RECOMMENDATION: Staff recommends approval of the proposed Ordinance on 2nd Reading (public hearing). LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the City’s Land Use Code. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three-step process. This is the second step in the process: 1.Public Outreach 2.Policy Resolution by City Council indicating if an amendment should be pursued 3.Public Hearings on Ordinance outlining specific code amendments. DISCUSSION: Currently, the Land Use Code states that when employee housing is provided as mitigation, an APCHA Board recommendation is required. Other APCHA Board references also exist throughout the Land Use Code. City Council member participation on the APCHA Board has the potential to create a conflict of interest during the land use application review process when APCHA referral comments are provided to the City Council in consideration of a final decision, or an appeal. To eliminate any potential conflict of interest, the Land Use Code will need to be amended to remove the APCHA Board review and recommendation requirements, replacing them with an APCHA Staff referral. Removing these 92 Page 2 of 2 requirements will then establish the City’s standard process which refers a land use application to the Department Staff. The City Council approved Policy Resolution No. 52, Series 2019 on May 13 th, 2019 which established direction for a Land Use Code Amendment and is the 2nd step in the 3-step process. City Council also passed Ordinance 12, Series 2019 amending the text of the Land Use Code on 1 st Reading and set 2 nd Reading (public hearing) for tonight. If the draft ordinance is passed on 2nd Reading, the proposed Land Use Code amendments will become effective in 30 days (June 19th, 2019). STAFF RECOMMENDATION: Staff recommends adoption of the Ordinance No. 12, Series 2019, on 2 nd Reading (public hearing). RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Ordinance No. 12 Series of 2019, amending the City of Aspen Land Use Code to eliminate APCHA referral and recommendation requirements, on 2nd Reading (public hearing).” ATTACHMENTS: Exhibit A –Staff Findings Exhibit B -Redline version of the proposed Land Use Code Amendments 93 Ordinance 12, Series 2019 Page 1 of 9 ORDINANCE NO. 12 SERIES OF 2019 AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING CITY OF ASPEN LAND USE CODE RELATED APCHA BOARD REFERRALS AND LAND USE APPLICATIONS WHEREAS,in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City Council of the City of Aspen directed the Community Development Department to draft a code amendment to eliminate language regarding Aspen/Pitkin County Housing Authority (APCHA) review and recommendation requirements for land use applications, in order to respond to recent amendments to the City of Aspen and Pitkin County Intergovernmental Agreement (IGA) that changes the makeup of the APCHA Board; and, WHEREAS,pursuant to Chapter 26.310, applications to amend the text of Title 26 of the Municipal Code shall begin with Public Outreach, a Policy Resolution reviewed and acted on by City Council, and then final action by City Council after reviewing and considering the recommendation from the Community Development; and, WHEREAS,pursuant to Section 26.310.020(B)(1), the Community Development Department conducted Public Outreach through the Community Development Newsletter regarding the code amendment and City Council conducted work sessions; and, WHEREAS,pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on May 13th, 2019, the City Council approved Policy Resolution No. 52, Series of 2019, by a fiveto zero (5 - 0) vote requesting a Land Use Code amendment to eliminate APCHA Board review and recommendation requirements and delete other references relating to APCHA review, and replacing with references requiring compliance with the APCHA Guidelines; and, WHEREAS,the Aspen City Council has reviewed the proposed Land Use Codeamendment at1st Reading on May 13th, 2019 and at2nd Reading (public hearing) on May 20th, 2019 and finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310; and, WHEREAS, the proposed Land Use Code amendments to eliminate APHCA Board referrals in the land use process will further the integrity of the process and foster better governance. WHEREAS, the proposed amendments are consistent and compatible with the goals and objectives of the City of Aspen and the Aspen Area Community Plan (AACP); and, WHEREAS,the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare; and NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: 94 Ordinance 12, Series 2019 Page 2 of 9 Section 1: Code Amendment Objective The objective of the proposed Land Use Code amendment is to eliminate potential conflicts of interests between the City Council and APCHA in the review of land use applications. Section 2: City of Aspen Land Use Code Section 26.470.080.D.7.a is hereby deleted and replaced in its entirety with the following: a. The proposed units comply with the Guidelines of the Aspen/Pitkin County Housing Authority, as amended. Section 3: City of Aspen Land Use Code Section 26.470.080.D.7.b is hereby deleted and replaced in its entirety with the following: b. Required affordable housing may be provided through a mix of methods outlined in this chapter, including newly built units, buy down units, certificates of affordable housing credit, or cash-in-lieu. Section 4: City of Aspen Land Use Code Section 26.470.090.B.3.b is hereby deleted and replaced in its entirety with the following: b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit. The mitigation unit must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. Section 5: City of Aspen Land Use Code Section 26.470.090.B.3.d is hereby deleted and replaced in its entirety with the following: d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. 95 Ordinance 12, Series 2019 Page 3 of 9 Section 6: City of Aspen Land Use Code Section 26.470.090.C.2.b is hereby deleted and replaced in its entirety with the following: b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit(s). The mitigation unit(s) must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. Section 7: City of Aspen Land Use Code Section 26.470.090.C.2.d is hereby deleted and replaced in its entirety with the following: d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. Section 8: City of Aspen Land Use Code Section 26.470.100.D.1 is hereby deleted and replaced in its entirety with the following: 1) The proposed units shall be deed-restricted as "for sale" units and transferred to qualified purchasers according to the Aspen/Pitkin County Housing Authority Guidelines. The owner may be entitled to select the first purchasers, subject to the aforementioned qualifications, pursuant to the Aspen/Pitkin County Housing Authority Guidelines. The deed restriction shall authorize the Aspen/Pitkin County Housing Authority or the City to own the unit and rent it to qualified renters as defined in the Affordable Housing Guidelines established by the Aspen/Pitkin County Housing Authority, as amended. Section 9: City of Aspen Land Use Code Section 26.470.100.E.2 is hereby deleted and replaced in its entirety 96 Ordinance 12, Series 2019 Page 4 of 9 with the following: 2. Requirements for demolishing affordable multi-family housing units: In the event a project proposes to demolish or replace existing deed-restricted affordable housing units, the redevelopment may increase or decrease the number of units, bedrooms or net livable area such that there is no decrease in the total number of employees housed by the existing units. The overall number of replacement units, unit sizes, bedrooms and category of the units shall comply with the Aspen/Pitkin County Housing Authority Guidelines. Section 10: City of Aspen Land Use Code Section 26.470.100.E.4 is hereby deleted and replaced in its entirety with the following: 4. Location requirement. Multi-family replacement units, both free- market and affordable, shall be developed on the same site on which demolition has occurred, unless the owner shall demonstrate and the Planning and Zoning Commission determines that replacement of the units on site would be in conflict with the parcel's zoning or would be an inappropriate solution due to the site's physical constraints. When either of the above circumstances result, the owner shall replace the maximum number of units on site which the Planning and Zoning Commission determines that the site can accommodate and may replace the remaining units off site, at a location determined acceptable to the Planning and Zoning Commission, or may replace the units by extinguishing the requisite number of affordable housing credits, pursuant to Sec. 26.540, Certificates of Affordable Housing Credit. When calculating the number of credits that must be extinguished, the most restrictive replacement measure shall apply. For example, for an applicant proposing to replace one 1,000 square foot three- bedroom unit at the 50% rate using credits, the following calculations shall be used: 50% of 1,000 square feet = 500 square feet to be replaced. At the Code mandated rate of 1 FTE per 400 square feet of net livable area, this requires 1.25 credits to be extinguished; or A three-bedroom unit = 3.0 FTE’s. 50% of 3.0 FTE’s = 1.50 credits to be extinguished. 97 Ordinance 12, Series 2019 Page 5 of 9 Therefore, the applicant must extinguish 1.50 credits to replace a three-bedroom unit at the 50% rate. The credits to be extinguished would be Category 4 credits. Section 11: City of Aspen Land Use Code Section 26.470.110.A.1.c is hereby deleted and replaced in its entirety with the following: c. The proposal furthers affordable housing goals by providing units established as priority through the current Aspen/Pitkin County Housing Authority Guidelines and provides a desirable mix of affordable unit types, economic levels and lifestyles (e.g., singles, seniors, families, etc.). Section 12: City of Aspen Land Use Code Section 26.470.110.B.2 is hereby deleted and replaced in its entirety with the following: 2. The proposal furthers affordable housing goals by providing units established as priority through the current Aspen/Pitkin County Housing Authority Guidelines and provides a desirable mix of affordable unit types, economic levels and lifestyles (e.g., singles, seniors and families). Section 13: City of Aspen Land Use Code Section 26.470.150.A.2 is hereby deleted and replaced in its entirety with the following: 2) The change does not alter the number, size, type or deed restriction of the proposed affordable housing units, subject to compliance with the Aspen/Pitkin County Housing Authority Guidelines. Section 14: City of Aspen Land Use Code Section 26.520.020 hereby deleted and replaced in its entirety with the following: General: Accessory dwelling units and carriage houses are separate dwelling units incidental and subordinate in size and character to the primary residence, located on the same parcel, and which may be rented or sold to a local working resident as defined by the Aspen/Pitkin County Housing Authority Guidelines and as limited by this Chapter. A primary residence may have no more than one (1) ADU or carriage house. An ADU or carriage house may not be accessory to another ADU or carriage house. A detached ADU or carriage house may only be conveyed separate from the primary 98 Ordinance 12, Series 2019 Page 6 of 9 residence as a "for sale" affordable housing unit to a qualified purchaser pursuant to the Aspen/Pitkin County Housing Authority Guidelines, as amended. ADUs and carriage houses shall not be considered units of density with regard to zoning requirements. ADUs and carriage houses shall not be used to satisfy employee housing requirements of the Growth Management Quota System (GMQS), except that a detached ADU or carriage house which is deed restricted and conveyed separate from the primary residence as a "for sale" affordable housing unit to a qualified purchaser pursuant to the Aspen/Pitkin County Housing Authority Guidelines, as amended, shall qualify for issuance of a Certificate of Affordable Housing Credit, pursuant to Chapter 26.540. All ADUs and carriage houses shall be developed in conformance with this Chapter. Section 15: Aspen Land Use Code Chapter 26.520.070.A is hereby deleted and replaced in its entirety with the following: Deed restrictions and enforcement A. Deed restrictions. At a minimum, all properties containing an ADU or a carriage house shall be deed restricted in the following manner: The ADU or carriage house shall be registered with the Aspen/Pitkin County Housing Authority. Any occupant of an ADU or carriage house shall be qualified as a local working resident according to the current Aspen/Pitkin County Housing Authority Guidelines, as amended. The ADU or carriage house shall be restricted to lease periods of no less then six (6) months in duration or as otherwise required by the current Aspen/Pitkin County Housing Authority Guidelines. Leases must be recorded with the Aspen/Pitkin Housing Authority. A detached and permanently affordable Accessory Dwelling Unit or Carriage House qualifying a property for a floor area exemption, pursuant to Section 26.575.020 – Calculations and Measurements, shall be deed restricted as a "for sale" affordable housing unit and conveyed to a qualified purchaser, according to the Aspen/Pitkin County Housing Authority Guidelines, as amended and according to the following sales price limitations: Accessory dwelling units from 300 to 500 net livable square feet – Category 3 or lower. Accessory dwelling units from 501 to 800 net livable square feet – Category 4 or lower. 99 Ordinance 12, Series 2019 Page 7 of 9 Carriage houses from800 to 1,000 net livable square feet –Category 5 or lower. Carriage houses from 1,001 to 1,200 net livable square feet – Category 6 or lower. Category sales prices shall be those specified in the Aspen/Pitkin County Housing Authority Guidelines, as amended. The initial developer may select the first qualified purchaser of the unit. Subsequent conveyances shall be according to the lottery sales procedures specified in the Aspen/Pitkin County Housing Authority Guidelines, as amended. A detached and permanently affordable Accessory Dwelling Unit or Carriage House deed restricted as a “for-sale” affordable housing unit, as described above, and which is not required for mitigation purposes, shall be eligible to receive a Certificate of Affordable Housing Credit pursuant to Chapter 26.540. Accessory dwelling units deed restricted to mandatory occupancy in exchange for a floor area bonus, prior to the adoption of Ordinance No. 46, Series of 2001, shall be continuously occupied by a local working resident, as defined by the Aspen/Pitkin County Housing Authority Guidelines, for lease periods of six (6) months or greater, unless the owner is granted approval to remove that restriction pursuant to Subsection 26.520.090.B, Removal of Mandatory Occupancy Deed Restriction. The Aspen/Pitkin County Housing Authority shall provide a standard form for recording accessory dwelling unit or carriage house deed restrictions. The deed restriction shall be recorded with the County Clerk and Recorder prior to a Certificate of Occupancy being issued. The reception number associated with the recordation shall be noted in the building permit file. Section 16: Aspen Land Use Code Chapter 26.520.090.A.2 is hereby deleted and replaced in its entirety with the following: 2. The change does not alter the deed restriction for the ADU or carriage house or the alteration to the deed restriction consistent with the Aspen/Pitkin County Housing Authority Guidelines. Section 17: Aspen Land Use Code Chapter 26.520.090.B.2.a is hereby deleted and replaced in its entirety with 100 Ordinance 12, Series 2019 Page 8 of 9 the following: a) Develop a deed restricted affordable housing unit on a site that is not otherwise required to contain such a unit or convert an existing free-market unit to affordable housing status. The replacement affordable housing unit shall be within the Aspen infill area, shall be a one-bedroom or larger sized unit, shall meet the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements), shall be deed restricted as a Category 2, or lower, for-sale unit according to the Aspen/Pitkin County Housing Guidelines, as amended, and shall be transferred to a qualified purchaser through the Aspen/Pitkin County Housing Authority sales process; or, Section 18: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 19: Effect Upon Existing Litigation. This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 20: Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 21: Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty(30) days following final passage. Section 22: A public hearing on this ordinance shall be held on the 20th day of May, 2019, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. 101 Ordinance 12, Series 2019 Page 9 of 9 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 13th day of May, 2019. Attest: ______________________________________________________ Linda Manning, City Clerk Steven Skadron, Mayor FINALLY, adopted, passed and approved on _______________, 2019. Attest: _____________________________________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to form: ___________________________ James R. True, City Attorney 102 Page 1 of 1 EXHIBIT A STAFF FINDINGS 26.310.050 Amendments to the Land Use Code Standards of review - Adoption. In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), Step Three – Public Hearing before City Council, the City Council shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Findings: There are no known conflicts with any other portions of Title 26. Staff finds this criterion to be met. B. Whether the proposed amendment achieves the policy, community goal, or objective cited as reasons for the code amendment or achieves other public policy objectives. Staff Findings: The proposed Land Use Code amendment to eliminate APHCA Board referrals in the land use process will further the integrity of the process and foster better governance. The proposed amendment is in line with the goals and objectives of the City. Staff finds this criterion to be met. C. Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The objective of the proposed amendment is to eliminate the potential for a conflict of interest for the City Council and APCHA referrals. Eliminating this conflict is clearly compatible with community character and in harmony with the intent of this Land Use Code. Staff finds this criterion to be met. 103 Exhibit B104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 Page 1 of 2 MEMORANDUM TO:Mayor Skadron and City Council FROM:Amy Simon, Historic Preservation Officer THRU:Jessica Garrow, Community Development Director RE:119 Neale Avenue, Transferable Development Rights Ordinance #10,Series of 2019, Public Hearing continued from May 13, 2019 DATE:May 20, 2019 SUMMARY: The attached Ordinance creates Transferable Development Rights (TDRs) to be removed from 119 Neale Avenue, Lot 1, Benedict Cabin Subdivision, City and Townsite of Aspen, Colorado. This is a landmarked property owned by 119 Neale Avenue, LLC. The property was created through a Historic Landmark Lot Split, but does not contain a historic structure. The historic resource that qualified the site for a lot split sits to the south, on Lot 2. Council previously reviewed an application for three TDRs at 119 Neale Avenue and denied the request in 2017. A subsequent lawsuit and settlement agreement has resulted in a commitment by Council to allow two TDRs.This Ordinance is necessary to formalize the removal of development rights from the property. STAFF RECOMMENDATION: Staff recommends approval of the proposed Ordinance. Since May 13th, the Ordinance has been amended to address a neighbor concern over a portion of the subject property where ownership is disputed. The Ordinance also now requires the applicant to complete the removal of an unpermitted shed before the TDR certificates will be issued. LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approval from City Council: Transferable Development Rights–(Chapter 26.535.070) for the creation of two TDRs. Council is the final decision-making authority. STAFF RECOMMENDATION: Criteria for the establishment of TDRs, and the staff evaluation are provided as Exhibit A. 119 Neale Avenue is eligible for the creation of TDRs to the extent that the existing development is smaller than the maximum allowable floor area. The maximum allowable floor area is 4,200 square feet and the existing development is 3,265 square feet, leaving 935 square feet of unused floor area to create TDRs. 120 Page 2 of 2 The recent settlement between the property owner and the City states that two TDRs will be allowed. Each TDR equates to 250 square feet of floor area, which the property owner will be able to sell so that the floor area may be constructed on a non-historic property elsewhere in Aspen. The settlement includes a provision that this property will not be eligible for additional TDRs in the future. Staff has included a condition in the Ordinance which restricts current and future owners of 119 Neale Avenue from submitting applications for additional TDRs. Staff recommends adoption of the attached Ordinance. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to adopt Ordinance #10, Series of 2019, creating two TDRs at 119 Neale Avenue.” ATTACHMENTS: Ordinance #10, Series of 2019 Exhibit A -Transferable Development Rights Criteria/Staff Findings 121 Ordinance 10, Series 2019 119 Neale Ave TDRs Page 1 of 4 ORDINANCE #10 (Series of 2019) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO CREATING TWO TRANSFERABLE DEVELOPMENT RIGHTS AT THE PROPERTY LOCATED AT 119 NEALE AVENUE, LOT 1, BENEDICT CABIN SUBDIVISION, CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID:2737-073-53-003 WHEREAS,119 Neale Avenue, LLC, Jeffrey Shoaf, registered agent, requests approval to create and sever two Transferable Development Rights (TDRs) at 119 Neale Avenue (the “Property”); and WHEREAS,creation of these TDRs is an obligation agreed to by City Council through their approval, via Resolution #41, Series of 2019, of a Settlement Agreement in the case of 119 Neale Avenue, LLC V. The City of Aspen, Pitkin County District Court, Case #2017CV30131; and WHEREAS,Section 26.535.070 of the Aspen Municipal Code establishes the process for creation for Transferable Development Rights, which shall be approved if City Council determines sufficient evidence exists that the property meets the established review criteria; and WHEREAS,Amy Simon, Historic Preservation Officer, in her staff report to City Council, performed an analysis of the application, found that the review standards were met, and recommended approval; and WHEREAS,the City Council finds that the proposal meets or exceeds all applicable development standards and that the approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS,the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section1: Transferable Development Rights Pursuant to thefindings set forth above, the City Council does hereby authorize the grant of two (2) Transferable Development Rights from119 Neale Avenue, Lot 1, Benedict Cabin Subdivision, City and Townsite of Aspen, Coloradowhich TDRs shall be deducted from the 4,200 square feet of total allowable floor area for the Property, with the following conditions: 122 Ordinance 10, Series 2019 119 Neale Ave TDRs Page 2 of 4 1. Upon satisfaction of all requirements, the city and the applicant shall establish a date on which the respective Historic TDR Certificates shall be validated and issued by the City and a deed restriction on the property shall be accepted by the City and filed with the Pitkin County Clerk and Recorder. The property owner may decide when and if, as warranted by the TDR market, the development rights will be converted into certificates and sold. 2. On the mutually agreed upon date, the Mayor of the City of Aspen shall execute and deliver the applicable number of Historic TDR Certificates to the property owner and the property owner shall execute and deliver a deed restriction lessening the available development right of the Sending Site, 119 Neale Avenue, Lot 1, Benedict Cabin Subdivision, City and Townsite of Aspen, Colorado, by 250 square feet per TDR together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder’s Office. No TDR certificate shall be issued by the City prior to the demolition of the shed pursuant to the terms of the Settlement Agreement entered in District Court Case #2017CV30131. 3. Per the Settlement Agreement in the case of 119 Neale Avenue, LLC V. The City of Aspen, Pitkin County District Court, Case #2017CV30131, current and future owners of 119 Neale Avenue are prohibited from submitting applications for additional TDRs for the Property. 4. This Ordinance shall be recorded with the Pitkin County Clerk and Recorder, shall run with the land, and shall be binding upon 119 Neal Avenue LLC and Jeffrey Shoaf as registered agent, their successors and assigns. 5. Nothing within this ordinance, the deed restriction entered pursuant to the ordinance, or the calculation of allowable floor area on the subject site, shall be deemed to encumber an approximately 785 square foot area along the northern boundary of the site described in a Quit Claim Deed recorded with the Pitkin County Clerk and Recorder at Book 799, Page 660, Reception Number 387385. Nonetheless, the deduction of this lot area shall not diminish the 4,200 square feet of total allowable floor area for the Property set forth in the Settlement Agreement described above. Section 2: Severability If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section3: Existing Litigation This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. 123 Ordinance 10, Series 2019 119 Neale Ave TDRs Page 3 of 4 Section 4: Vested Rights The development approvals granted herein shall constitute a site-specific development plan vested for a period of three (3) years from the date of issuance of a development order. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of Section 26.104.050 (Void permits). Zoning that is not part of the approved site-specific development plan shall not result in the creation of a vested property right. No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain a development order as set forth in this Ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 119 Neale Avenue. Nothing in this approval shall exempt the development order from subsequent reviews and approvals required by this approval of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this approval. The approval granted hereby shall be subject to all rights of referendum and judicial review; the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication of the notice of final development approval as required under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado Constitution and the Aspen Home Rule Charter. Section 5: Public Hearing A public hearing on the ordinance was held on the 13 th day of May 2019, and the 20 th day of May 2019, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. 124 Ordinance 10, Series 2019 119 Neale Ave TDRs Page 4 of 4 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City ofAspen on the 22ndday ofApril 2019. _______________________________________ Steven Skadron, Mayor ATTEST: __________________________________________ Linda Manning, City Clerk FINALLY,adopted, passed and approved this ___ day of _________, 2019. _______________________________________ Steven Skadron, Mayor ATTEST: __________________________________________ Linda Manning, City Clerk APPROVED AS TO FORM: _______________________________________________ James R. True, City Attorney 125 119 Neale Ave TDRs Exhibit A, Staff Findings Page 1 of 3 EXHIBIT A TDR REVIEW CRITERIA 26.535.070. Review criteria for establishment of a historic transferable development right. A historic TDR certificate may be established by the Mayor if the City Council, pursuant to adoption of an ordinance, finds all the following standards met: A.The sending site is a historic landmark on which the development of a single- family or duplex residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties on which such development is a conditional use shall not be eligible. Staff Finding: 119 Neale Avenue is a landmarked property. Single family and duplex uses are permitted in the zone district where 119 Neale Avenue is located. Staff finds this criterion is met. B.It is demonstrated that the sending site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two hundred and fifty (250) square feet of floor area multiplied by the number of historic TDR certificates requested. Staff Finding: According to City Council Ordinance #2, Series of 2012, the subdivision approval that created this lot, 119 Neale Avenue is allowed a maximum floor area of 4,200 square feet. To the extent that the existing development represents less than that, the owner may apply to sever Transferable Development Rights in increments of 250 square feet of floor area. The existing structure has been calculated to be 3,265 square feet, leaving 935 square feet of unused floor area, sufficient for the creation of two 250 square foot TDRs. Staff finds this criterion is met. C.It is demonstrated that the establishment of TDR certificates will not create a nonconformity. In cases where a nonconformity already exists, the action shall not increase the specific nonconformity. Staff Finding: No non-conformities will be created by the establishment of TDRs. Staff finds this criterion is met. 126 119 Neale Ave TDRs Exhibit A, Staff Findings Page 2 of 3 D.The analysis of unbuilt development right shall only include the actual built development, any approved development order, the allowable development right prescribed by zoning for a single-family or duplex residence, and shall not include the potential of the sending site to gain floor area bonuses, exemptions or similar potential development incentives. Staff Finding: The analysis only includes development that is by right. Staff finds this criterion is met. E.Any development order to develop floor area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. Staff Finding: No such development order exists. Staff finds this criterion is not applicable. F.The proposed deed restriction permanently restricts the maximum development of the property (the sending site) to an allowable floor area not exceeding the allowance for a single-family or duplex residence minus two hundred and fifty (250) square feet of floor area multiplied by the number of historic TDR certificates established. For properties with multiple or unlimited floor areas for certain types of allowed uses, the maximum development of the property, independent of the established property use, shall be the floor area of a single-family or duplex residence (whichever is permitted) minus two hundred fifty (250) square feet of floor area multiplies by the number of historic TDR certificates established. The deed restriction shall not stipulate an absolute floor area, but shall stipulate a square footage reduction from the allowable floor area for a single-family or duplex residence, as my be amended from time to time. The sending site shall remain eligible for certain floor area incentives and/or exemptions as may be authorized by the City Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. Staff Finding: The deed restriction will follow the form approved by the City Attorney. Staff finds this criterion is met. G.A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of historic TDR certificates to the sending site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the County Clerk and Recorder's office. Staff Finding: A closing will be scheduled at the conclusion of the review. Staff finds this criterion is met. 127 119 Neale Ave TDRs Exhibit A, Staff Findings Page 3 of 3 H.It shall be the responsibility of the sending site property owner to provide building plans and a zoning analysis of the sending site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built floor area. (Ord. 54-2003, §§ 4, 5) Staff Finding: The applicant has provided a floor area analysis. Staff finds this criterion is met. I.The sale, assignment, conveyance or other transfer or change in ownership of transferable development rights certificates shall be recorded in the real estate records of the Pitkin County Clerk and Recorder and must be reported by the grantor to the City of Aspen Community Development Department within five (5) days of such transfer. The report of such transfer shall disclose the certificate number, the grantor, the grantee and the total value of the consideration paid for the certificate. Failure to timely or accurately report such transfer shall not render the transferable development right certificate void. Staff Finding: The applicant is obligated to report the sale to the City as described above. This is included as a condition of approval in the Ordinance. 128 Page 1 of 3 MEMORANDUM TO:Mayor Skadron and City Council FROM:Phillip Supino, Principal Long-Range Planner THRU:Jessica Garrow, Community Development Director RE:Transportation and Parking Management Code Amendments Ordinance 13, Series of 2019 DATE:May 20, 2019 SUMMARY: The attached Ordinance amends the Transportation and Parking Management section of the Land Use Code. The proposed amendments revise terminology, coordinate regulations, and clarify processes in the section. STAFF RECOMMENDATION: Staff recommends approval of the proposed Ordinance. LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the City’s Land Use Code. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three-step process. This is the third step in the process: 1.Public Outreach 2.Policy Resolution by City Council indicating if an amendment should be pursued 3.Public Hearings on Ordinance outlining specific code amendments. BACKGOUND: Community Development staff began developing amendments to the Parking section of the Land Use Code with a Council work session in January 2018. In support of these code amendments, Council unanimously passed Policy Resolution 20, Series 2018. This policy resolution directed the Community Development Department to pursue amendments to the Land Use Code. For reference, it is included as Exhibit D. The current Parking section of the Land Use Code was re-written during the 2016-2017 moratorium, combining Off Street Parking requirements with Transportation Mitigation requirements. At the time, minor amendments were anticipated to ensure the section is internally consistent. The proposed follow-up amendments to the Parking section ensure the code provides clear standards and processes for development and delivers on Council’s policy goals. During the moratorium, staff contracted with Nelson-Nygaard and ReGeneration Development Strategies, both leaders in the parking and transportation field, to assist in 129 Page 2 of 3 development of new parking regulations. Since 2018, staff has continued working with ReGeneration on clarifications to the post-moratorium parking regulations. Staff formed an expert steering committee of local designers, builders, and architects to support the miscellaneous code amendment process, including review of the parking section of the Land Use Code. Staff and the focus group worked through early 2019 developing comprehensive re-writes of the Calculations & Measurements and Parking sections of the Land Use Code. While a majority of that work has been tabled due to 2019 work program constraints, it provided the basis for the targeted code amendments proposed in Ordinance 13. Staff presented these changes in draft ordinance form to Council at the May 6th work session. At that work session, Council supported the proposed amendments and directed staff to return on May 13th for first reading. UPDATES FROM FIRST READING: During first reading, there were some clarification requests from community members regarding some of the changes proposed in this code amendment. Staff presented these at first reading, and is removing the sections identified, including changes related to how the removal of parking spaces is addressed. The potential changes will be rolled into future code amendments regarding this chapter. At the May 6 th work session, Council requested clarification on the definition of Parking Space, Accessory. The term refers to the management of an on-site parking space associated with a specific development. Accessory spaces are managed, typically through signage and enforcement, to provide parking access to residents, tenants, and visitors to the site at specific times of day. For example, a space may be signed for loading between 9 a.m. and 5 p.m. and resident parking for the rest of the day. This is distinct from a space which may, for example, be reserved for the exclusive use of a tenant or for loading. The management scheme would allow for the flexible use of parking spaces on a site, limiting the need for potentially redundant tenant and loading parking, and reducing the area of a development site consumed by parking. DISCUSSION: The draft amendments included in Ordinance 13 are based on the work of staff, consultants and the focus group over the course of 18 months. The scope of the amendments for the Parking code is limited to: coordination of standards within the section, and clarification of language, and improvements to formatting. No proposed amendment would alter calculations, methodologies, or development rights. Key amendments in the ordinance are outlined below and in the redline version of the ordinance included as Exhibit C. Definitions – 26.515.010 A handful of the definitions at the beginning of the section are proposed for amendment. The amendments will ensure coordination with terms throughout the section, the Land Use Code generally, as well as the Transportation Impact Analysis (TIA) standards. “Parking Space, Guest/Loading” was added to the definitions to provide clearer standards for this type of 130 Page 3 of 3 parking. Finally, “Mobility Commitments” was changed to “Mobility Measures” and “Surplus Mobility Measures” was added. These changes better coordinate the terminology associated with the relationship between the parking and TIA regulations. Applicability – 26.515.020 Language was added to this section to make the threshold clear as to which projects are subject to the regulations in the section. This addition adds clarity for staff and applicants but does not change the types of projects or properties subject to the regulations Meeting Parking Requirements – 26.515.050 This section is highlighted because it has been significantly reformatted. None of the regulations have been altered. The contents have been re-organized to better illustrate the relationship between different parking configurations (sub-bullet #2) and the four ways in which development can meet parking requirements. Off-Street Parking Requirements – 26.515.070 The Engineering Standards allows for sites with more than 15 parking spaces to provide up to 25% of the total parking on-site as compact parking spaces. This language was added to the Land Use Code to provide clarity to staff and applicants and ensure coordination between departments. PUBLIC OUTREACH: Since November 2017, Planning staff has met with the 11-member focus group, including representatives from P&Z and HPC, to receive direction and technical support on the regulations originally proposed for amendment in 2018. While the scope of the work undertaken with the focus group was broader than the current, targeted parking amendments, the proposed amendments were addressed in the work of the focus group. Public outreach has also been conducted via the Community Development newsletter and in conjunction with the Policy Resolution process. Prior to the May 6th work session and May 13 th first reading, staff provided the draft ordinance to the focus group for comment. Staff met with and responded to comments from focus group members in advance of the first and second reading hearings. STAFF RECOMMENDATION: Staff recommends adoption of the attached Ordinance. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Ordinance No. 13 Series of 2019, amending the Transportation and Parking Management section of the Land Use Code.” ATTACHMENTS: Ordinance 13, 2019 Exhibit A:Staff Findings Exhibit B:Parking Amendments Draft – Redline Version Exhibit C:Resolution 20, Series 2018 – Policy Resolution 131 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 1 of 19 ORDINANCE No. 13 Series of 2019 AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING CODE AMENDMENTS TO LAND USE CODE CHAPTER 26.515, TRANSPORTATION AND PARKING MANAGEMENT. WHEREAS,in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City Council of the City of Aspen directed the Community Development Department to craft code amendments to related to transportation and parking management regulations; and, WHEREAS,pursuant to Section 26.310.020(B)(1), beginning in 2017 the Community Development Department conducted Public Outreach with the Planning & Zoning Commission, City Council, and development community stakeholders regarding amendments to the transportation and parking management regulations; and, WHEREAS,the Community Development Department contracted with ReGeneration Development Services for parking regulation consulting services in support of this code amendment; and, WHEREAS,pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on February 26, 2018, the City Council approved Resolution No. 20, Series 2019, by a five to zero (5 – 0) vote, requesting code amendments to the Land Use Code; and, WHEREAS,Aspen Area Community Plan policy III.1 (Transportation) calls for the reduction of vehicle trips by user groups; and, WHEREAS,Aspen Area Community Plan policy III.2 (Transportation) requires that development minimize adverse impacts to transportation systems; and, WHEREAS, the Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code; and, WHEREAS, the Aspen City Council finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health safety and welfare; and, NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN COLORADO THAT: 132 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 2 of 19 Section 1: Chapter 26.515, Transportation and Parking Management, shall be deleted and replaced with the following: Chapter 26.515 TRANSPORTATION AND PARKING MANAGEMENT Sections: 26.515.010 Purpose and Definitions 26.515.020 Applicability 26.515.030 Transportation Mitigation 26.515.040 Parking Requirements 26.515.050 Meeting Parking Requirements 26.515.060 Procedures for Review 26.515.070 Off-Street Parking Requirements 26.515.080 Special Review Standards 26.515.090 Cash-in-lieu for Parking Requirements 26.525.100 Amendments 26.515.110 Appeals 26.515.010.Purpose This Chapter establishes unified transportation and mobility standards to promote the city’s policies relating to mobility, access to employment opportunities, and sustainability. This chapter implements policies from the Aspen Area Community Plan to: Limit vehicle trips into Aspen to 1993 levels, and reduce peak-hour vehicle-trips to at or below 1993 levels; Use Transportation Demand Management tools to accommodate additional person trips in the Aspen Area; Maintain the reliability and improve the convenience of City of Aspen transit services; Expand and improve bicycle parking and storage within the Urban Growth Boundary; Improve the convenience, safety, and quality of experience for bicyclists and pedestrians on streets and trails; Require development to mitigate its transportation impacts; and Develop a strategic parking plan that manages the supply of parking and reduces the adverse impacts of the automobile. This Chapter establishes a variety of ways for property owners and developers to mitigate their impacts on the transportation network. As new development and growth occur, increased burdens on the transportation system can make it more difficult for the City to meet its transportation and air quality goals. To the extent that increased travel demand can shift away 133 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 3 of 19 from automobile dependence, development and growth can be compatible with, and even support, these goals. To promote this shift in travel behavior, the City has transformed its approach to parking requirements to focus on the promotion and expansion of mobility options, including more walkable development patterns and a more efficient parking system, as well as the provision of public and development-based mobility resources. This will directly improve the travel experience and quality of life within growth areas, while helping to maintain the City's transportation-system and air-quality standards. This is accomplished through a new integrated approach, which incorporates the City’s Transportation Impact Analysis (TIA) Guidelines with Off-Street Parking Requirements. Where the TIA serves to evaluate the potential adverse effects of proposed projects on Aspen’s transportation systems, the off-street parking regulations focus on on-site mitigation needs resulting from the provision of parking. Applicants will use a simplified, two-tiered process that: 1.Determines the project’s TIA applicability and calculates the project’s resulting “parking requirement,” and 2.Provides a Mobility Plan that includes the applicant’s parking and mobility mitigation requirements, which includes the provision of parking, utilization of cash-in-lieu, and/or provision mobility options, including TIA mitigations if applicable. The City then reviews the project’s mitigations for parking and mobility together as part of the project’s land use application. A. Adoption of Transportation Impact Analysis (TIA) Guidelines Pursuant to the powers and authority conferred by the Charter of the City, there is hereby adopted and incorporated herein by reference as fully set forth those standards contained in the City of Aspen’s Transportation Impact Analysis Guidelines, as may be amended, updated and expanded from time to time by City Council Resolution (referred to in this Code as the “TIA Guidelines”). At least one (1) copy of the TIA Guidelines shall be available for public inspection at the Community Development, Engineering, and Transportation Departments. B. Definitions. As used in this Section, the following terms shall be defined as follows: Mobility Measures. Specific tools, strategies, and policies approved in the Mobility Plan. These include the Transportation Demand Management (TDM) and/or Multimodal Level of Service (MMLOS) Mitigation Tools prescribed by the TIA, defined as follows: Transportation Demand Management (TDM) Tools, which are strategies and policies to reduce travel demand, particularly by single-occupancy vehicles, and 134 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 4 of 19 Multi-Modal Level of Service (MMLOS) Tools, which are improvements to transportation service quality for travelers using a variety of modes including pedestrians, bicyclists, and transit passengers. Mobility Plan. A complete mitigation plan for a proposed development’s transportation and parking system impacts. Parking Maximum. The maximum number of Parking Spaces provided on-site for a designated use before triggering compliance with Shared Parking Requirements. Parking Minimum. The minimum number of Parking Spaces required on-site for a designated use. Parking Requirement. The sum of a project’s required Parking, as provided in Section 26.515.020.C. Parking Space, Accessory. A Parking Space that is managed to limit access to individuals engaged with on-site uses (residents, tenants, and their guests/customers), but are shared between all on-site land uses across different peaks in service throughout a 24-hour/day period. Parking Space, Guest/Loading. A Parking Space that is managed to provide 24-hour/day access to a development for guests, deliveries and loading to the public, service providers, and other non-resident visitors to a development on a non-permanent basis. Parking Space, Public. A Parking Space that is managed to provide at least 12 hours of public use in any 24-hour/day period, with approved signage to effectively identify these hours of public access. Parking Space, Priced.A Parking Space – whether reserved, accessory, or public – that is priced comparable to market rates at all times of operation. Parking Space, Municipal.A Parking Space that is provided within City of Aspen facilities, or directly managed by the City of Aspen, whether located in a private or City-owned parking facility. Parking Space, Reserved. A Parking Space that is managed to limit access to specified individuals or specific on-site land uses. Parking, Shared. Parking that is shared between multiple, distinct land uses, on the same site or between proximate sites, to make more efficient use of spaces and reduce overall supply needs. Shared Parking is required on a development which exceeds its on-site parking provision maximum standard. Shared parking can be used to reduce a project’s Parking Requirement. Shared Parking may include off-site parking spaces and/or priced parking spaces. 135 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 5 of 19 Surplus Mobility Measures. Any additional mitigation credits remaining after TIA-subject projects have met the TIA requirements. Transportation Impact Analysis (TIA). Technical analysis guidelines for potential transportation impacts generated by development projects within the City of Aspen. 26.515.020. Applicability. This Chapter applies to all development and redevelopment which meets the definition of Demolition, or is a Change in Use, as defined in Chapter 26.470, Growth Management Quota System. A. Determination of Applicability. The applicant may request a preliminary pre-application conference with staff from the Community Development Department to determine the applicability of the requirements of this Chapter for the proposed development. The following chart details the process for complying with the requirements of this Section through the creation of a mobility plan. The TIA Guidelines are available on the City of Aspen website and may be used to determine whether a project is subject to or exempt from the TIA. 136 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 6 of 19 Figure 1: Applicability chart illustrating how to create a Mobility Plan. C. Requirements. This Chapter requires all applicable development to submit a Mobility Plan, which addresses the following: TIA applicability, and TIA compliance (as applicable), and The provision of parking, and Cash-in-lieu of parking (as applicable), and Surplus mobility measures (as applicable). The City then reviews the project’s proposed TIA and Mobility Plan together as part of the project’s Land Use Application. 137 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 7 of 19 26.515.030 Transportation Mitigation. A. General Requirements. All applicable development shall mitigate its projected transportation impacts as provided in this Chapter. Refer to the Transportation Impact Analysis (TIA) for project applicability. Mobility requirements shall be satisfied through use of the following approaches, either alone or in combination 1.Mobility Measures. Applicable development must provide Transportation Demand Management (TDM) and Multi-Modal Level of Service (MMLOS) measures as provided for in the Transportation Impact Analysis (TIA) Guidelines. These measures shall be maintained for the life of the development. All requirements shall be incorporated in the project’s Development Agreement, pursuant to Chapter 26.490, Development Documents. 2.Surplus Mobility Measures. Upon satisfaction of TIA requirements, a development’s Mobility Plan may include surplus mobility measures, where credit is provided over the minimum TIA requirements and applied towards Parking Requirements outlined in Table 26.515-1. The proportion of surplus mobility measures permitted for a development is outlined in Table 26.515-2. 26.515.040 Parking Requirements. A.General requirements. All applicable development shall accommodate its projected parking impacts as provided in this Chapter. Parking Requirements shall be satisfied through use of the following either alone or in combination. 1.Parking Requirement Calculation. Parking Requirements shall be calculated for each use within a development according to Table 26.515-1. 2.Parking Provision Minimum. Applicable development shall satisfy the minimum Parking Provision Requirement, as calculated in Table 26.515-1. Minimum parking provisions may be reduced in combination with mobility measures and transportation system impact fees in accordance with the standards in Table 26.515-2. 3.Parking Provision Maximum. To create appropriate site planning and provision of parking, applicable development shall not provide on-site parking in excess of 125% of the Parking Provision Maximum requirement in the form of Reserved Parking Spaces or Accessory Parking Spaces, unless the total number of on-site spaces in excess of 125% of the Parking Provision Maximum are provided as Public Parking Spaces. 138 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 8 of 19 Key to Table 26.515-1: Table 26.515-1 Parking Impact Requirement Calculations Use Aspen Infill Area All Other Areas Parking Requirement (in units)Parking Requirement (in units) Parking Maximum (in units) Commercial(1) 1 unit /1,000 sf Net Leasable Space 1.25 units / 1,000 sf NLA 3 units per 1,000 sf NLA(2) Residential – Single-Family and Duplex(4) Lesser of 1 unit per bedroom or 2 units per Dwelling Unit Greater of 1.25 units per bedroom or 2.5 units per dwelling unit Lesser of 1 unit per bedroom or 2 per unit Residential – Accessory Dwelling Units and Carriage Houses(3) (4) 1 unit per unit 1.25 units per unit 1 unit per unit(3) Residential – Multi-Family (as a single use) 1 unit per Dwelling Unit 1.25 units per dwelling unit Lesser of 1 unit per bedroom or two units per Dwelling Unit Residential – Multi-Family within a mixed-use building 1 unit per Dwelling Unit 1.25 units per dwelling unit 1 per Dwelling Unit(2) Hotel/Lodge 0.5 units per Key 0.7 units per Key 0.7 units per Key(2) All Other Uses (civic, cultural, public uses, essential public facilities, child care centers, etc.) Established by Special Review according to the review criteria of Section 26.515.080. N/A Established by Special Review according to the review criteria of Section 26.515.080. 139 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 9 of 19 (1)= Up to 100% of Parking Requirement, may be provided through cash-in-lieu. (2)= A reduction in Parking Requirement may be approved, pursuant to Chapter 26.430, Special review and according to the review criteria of Section 26.515.080 (3)= A reduction in Parking Requirements may be approved, pursuant to Chapter 26.520, Accessory dwelling units and carriage houses. (4)= All Single Family and Duplex dwelling units, as well as ADUs and Carriage Houses shall provide their Parking Requirement as off-street, on-site parking spaces. SF = Square feet NLA = Net leasable square feet of commercial space B. Fractional Requirement Computed. When any calculation of Parking Requirements results in a fractional unit, that fractional unit may be paid through a cash-in-lieu payment or satisfied through one whole additional on-site parking or mobility commitment credit. 26.515.050. Meeting Parking Requirements. A.General requirements. Parking Requirements shall be satisfied through the following provisions alone or in combination and described in a project’s Mobility Plan: 1. Cash-in-lieu. Cash-in-lieu payments may be made to satisfy Parking Requirements as outlined by zone district in Table 26.515-2, and according to Section 26.515.090. 2. Provision of Off-Street Parking: a. On-Site Parking. Off-street parking may be provided on-site in applicable zone districts to satisfy Parking Requirements, with Reserved and Accessory spaces not to exceed the Parking Maximums outlined below in Table 26.515-1. Shared parking may be counted provided that a Shared Parking Agreement and a shared- parking analysis, as approved by the Community Development Director, is executed. b. Off-Site Parking. Off-street parking may be provided off-site in applicable zone districts to satisfy Parking Requirements, provided that a Shared Parking Agreement and a shared-parking analysis, as approved by the Community Development Director, is executed. Off-site parking is subject to Special Review per Chapter 26.430 and Section 26.515.080. c. Reserved and Accessory Spaces. For both On-Site Parking and Off-Site Parking, Reserved and Accessory spaces in excess of the Parking Provision Maximums outlined below in Table 26.515-1 are subject to the Shared Parking standards in Section 26.515.040.A.3. 3. Shared Parking Spaces. For both On-Site Parking and Off-Site parking, shared parking spaces may be provided contingent upon a shared parking analysis being completed and a Shared Parking Agreement being executed, as approved by the Community Development Director. 4. Mobility Measures. Mobility Measures, as defined in Section 26.515.010.B, may be provided, as follows: 140 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 10 of 19 a. Where projects are TIA exempt, Mobility Measures may be provided to satisfy Parking Requirements as outlined by zone district in Table 26.515-2. b. Where projects are subject to the TIA, Surplus Mobility Measures (after the minimum TIA mitigation requirements have been met) may be provided to satisfy Parking Requirements as outlined by zone district in Table 26.515-2. The extent to which a project may satisfy its Parking Requirements with Mobility Commitments, On-Site Parking provision, and Cash-in-Lieu will vary by location, according to Table 26.515-2 below. 141 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 11 of 19 Table 26.515-2 - Parking Requirements by Zone District Location Options for Meeting Parking Requirements Additional TIA Credits (Projects Subject to TIA) Mobility Commitments (Projects Exempt from TIA) On-Site Parking Provision Cash-In-Lieu of Parking Fee Payment Commercial Core (CC) and Commercial-1 (C-1) zones Up to 2 Additional TIA Credits Up to 2 Mobility Commitments * Up to 20% of the Requirement. Up to 100% of the requirement if subgrade. Up to 100% of the Requirement Remaining Commercial, Lodging, and Lodging Overlay Zones 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) At least 60% and up to 100% of the Requirement Up to 40% of the Requirement Remaining Infill Area 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) Up to 100% of the Requirement Up to 100% of the Requirement All other Areas 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) At least 60% and up to 100% of the Requirement Up to 40% of the Requirement Parking Requirements are subject to the following standards: 142 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 12 of 19 1.If the Parking Requirement is subject to establishment by adoption of a Planned Development final development plan, review is subject to Chapter 26.445, Planned Development. 2.If the Parking Requirement is established through a special review, the standards and procedures of Section 26.515.080, Special Review Standards apply. 3.If the Parking Requirement is met via cash-in-lieu, the standards and procedures set forth at Section 26.515.090, Cash-in-Lieu of Parking apply. 4.For properties listed on the Aspen Inventory of Historic Landmark Sites and Structures, a waiver of the Parking Requirement may be approved, pursuant to Chapter 26.430, Special Review, and according to the review criteria set forth below. 5.For lodging projects with flexible unit configurations, also known as “lock-off units,” each separate “key,” or rentable division, shall constitute a unit for the purposes of this section. 6.The Parking Requirement for projects with multiple, distinct land uses (residential, commercial, lodging, or other) may be lowered, if the applicant submits a shared-parking analysis, approved by the Community Development Director, which results in a peak-parking-demand measure that is less than the Parking Requirement established by Table 26.515-1. The application for a shared parking analysis shall be reviewed by The Transportation, Parking, Engineering, and Community Development Departments and approved by the Planning and Zoning Commission as a Special Review (Section 26.430). *7.Off-street parking provision on a parcel that abuts an Aspen Pedestrian Mall may only be provided in an on-site, subgrade parking structure. Alternatively, parcels abutting an Aspen Pedestrian Mall may provide all Parking Requirements through the payment of Cash-in-Lieu (Section 26.515.090). 26.515.060. Procedures for Review. Development and redevelopment applications shall be reviewed pursuant to the following procedures, as well as standards and the Common Development Review Procedures set forth in Chapter 26.304. A. Review Authority. All applications will be reviewed administratively for compliance with this Chapter and relevant guidelines in conjunction with a project’s land use application, unless otherwise specified. In all circumstances, the final land use review body shall approve the TIA, after considering a recommendation from the Engineering, Transportation, and Community Development Departments. 143 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 13 of 19 B. Review Process. For all applicable development, Mobility Plan review is completed in conjunction with required land use reviews. Pursuant to Section 26.304.020, Pre-application Conference, applicants are encouraged, although not required, to meet with a member of the Community Development Department to clarify requirements of this Section and to determine applicability. 1. For development only subject to administrative-level land use reviews, or for development meeting a threshold established in the TIA Guidelines but not subject to a land use review, the City Engineering and Transportation Departments may, on behalf of the City of Aspen, determine that the project meets or exceeds the requirements set forth in this Chapter and the Transportation Impact Analysis Guidelines. When development meets an established threshold, but does not require a land use review, review for compliance with this Chapter and the Guidelines shall be completed as part of the building permit application. 2. In all circumstances, the final land use review body shall approve the TIA, after considering a recommendation from the Engineering and Transportation Departments. C. Review Criteria. All applicable projects are required to submit a Mobility Plan, which shall include and describe a project’s mitigations for TIA and Parking Requirements. The Engineering, Transportation, and Community Development Department staff shall determine whether the project conforms to this Chapter requirements using the following standards: 1. Project TIA and the resulting mitigation program meets requirements for exempt, minor, or major project categories as outlined in the TIA Guidelines. 2. Project provides full mitigation for the Parking Requirements pursuant to Section 26.515.050. 3. If existing development is expanded, additional Parking Requirements shall be provided for that increment of the expansion. 4. If existing development is redeveloped, on-site parking deficits may not be maintained unless all parking, or at least 20 spaces are provided as Public Parking. Projects failing to meet the requirements of this section may apply for a variation to the Planning and Zoning Commission through the Special Review process (Section 26.430 and Section 26.515.080). 26.515.070.Off-Street Parking Requirements. A. Applicability.Where off-street parking spaces are provided as part of a Mobility Plan, the regulations in Sections 26.515.070.(B – I) apply. B. General. Each off-street parking space shall consist of an open area measuring eight and one half (8½) feet wide by eighteen (18) feet long and seven (7) feet high with a maximum longitudinal slope of twelve percent (12%) and a maximum cross slope of five percent (5%). For developments providing more than 15 on-site parking spaces, 25% of the on-site spaces may be provided as Compact Parking in accordance with the requirements of the Engineering Design 144 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 14 of 19 Standards. Each parking space, except those provided for detached residential dwellings and duplex dwellings, shall have an unobstructed access to a street or alley. Off-street parking provided for multi-family dwellings which do not share a common parking area may be exempted from the unobstructed access requirement subject to special review pursuant to Chapter 26.430, Special review and the standards set forth at Section 26.515.040, Special review standards, below. Off-street parking must be paved with all-weather surfacing or be covered with gravel. For residential development, a grass ring or grass-paver-type surface may be used. All parking shall be maintained in a usable condition at all times. All development or redevelopment must be in conformance with, or bring existing parking into conformance with, Engineering Design Standards, including but not limited to the access requirements outlined in Chapter 4 Transportation Design. C. Use of off-street parking. Parking spaces shall be used for the parking of vehicles and shall not be used for non-auto related uses such as storage units or trash containers. No off-street parking area shall be used for the sale, repair, dismantling or servicing of any vehicles, equipment, materials or supplies, nor shall any such activity adjacent to off-street parking spaces obstruct required access to off-street parking areas. D. Location of off-street parking. Off-street parking, except shared parking, publicly accessible parking, or off-site parking as approved as part of a mobility plan, shall be located on the same parcel as the principal use or an adjacent parcel under the same ownership as the lot occupied by the principal use. For all uses, parking shall be accessed from an alley or secondary road where one exists unless otherwise established according to this Chapter. E. Detached and duplex residential dwelling parking. Off-street parking provided for detached residential dwellings and duplex dwellings is not required to have unobstructed access to a street or alley, but shall not block access of emergency apparatus to the property or to structures located on the property. This allows for "stacking" of vehicles where a vehicle is parked directly behind another. F. State Highway 82 off-street parking. All parking required for uses fronting State Highway 82 shall be accessed from the alley, if an alley exists, and shall not enter from or exit onto State Highway 82. G.Surface parking. Surface parking is prohibited or requires conditional use review as a principal use of a lot or parcel in some Zone Districts (See Chapter 26-710). Where surface parking is permitted and eight (8) or more spaces are provided, the parking area shall include one (1) tree with a planter area of twenty (20) square feet for each four (4) parking spaces. Planter areas may be combined but shall be proximate to the parking spaces. The Planning and Zoning Commission may waive or modify this requirement on a per case basis. Parking within structures is exempt from this landscaping provision. 145 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 15 of 19 H.Restrictions on drainage, grading and traffic impact. Off-street parking spaces shall be graded to ensure drainage does not create any flooding or water quality impacts and shall be provided with entrances and exits so as to minimize traffic congestion and traffic hazards. I.Restrictions on lighting. Lighting facilities for off-street parking spaces, if provided, shall be arranged and shielded so that lights neither unreasonably disturb occupants of adjacent residential dwellings nor interfere with driver vision. All outdoor lighting shall comply with the outdoor lighting regulations, Section 26.575.150. 26.515.080.Special Review Standards. Whenever the transportation, mobility, and parking impacts of a proposed development are subject to special review, an application shall be processed as a special review in accordance with the common development review procedures set forth in Chapter 26.304 and be evaluated according to the following standards. Review is by the Planning and Zoning Commission. If the project requires review by the Historic Preservation Commission and the Community Development Director has authorized consolidation pursuant to Subsection 26.304.060.B, the Historic Preservation Commission shall approve, approve with conditions or disapprove the special review application. A special review for establishing, varying or waiving transportation, mobility, or off-street parking requirements may be approved, approved with conditions or denied based on its conformance with all of the following criteria: 1. The transportation, mobility, and off-street parking needs of the residents, customers, guests and employees of the project have been met, taking into account potential uses of the parcel, the projected traffic generation of the project, any shared parking opportunities, expected schedule of parking demands, the projected impacts on the on- street parking of the neighborhood, the proximity to mass transit routes and the downtown area and any special services, such as vans, provided for residents, guests and employees. 2. An on-site mitigation solution meeting the requirements and guidelines is practically difficult or results in an undesirable development scenario. 3. Existing or planned on-site or off-site facilities adequately serve the needs of the development, including the availability of street parking. A.Commercial Parking Facilities. Special Review is required for a commercial parking facility. A special review to permit a commercial parking facility may be approved, approved with conditions or denied based on conformance with its adherence to Commercial Design Standards and the policy goal of provision of publicly-accessible parking in areas with high public parking demand (in order to reduce vehicle congestion and emissions due to vehicles circling for parking) is not offset by the proposed commercial parking facility’s potential adverse impacts of the City’s multi-modal transportation system. For properties in zone districts where 146 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 16 of 19 Conditional Use Review is required for a Commercial Parking Facility, Conditional Use and Special Review shall be combined. 26.515.090.Cash-in-lieu Requirements. A.General. The City conducted a parking facility analysis in the fall of 2016 and determined the costs associated with developing new parking facilities to serve the demands of development. While not all potential facilities represented the same potential expenditure, facilities considered likely to be developed by the City required an expected thirty-eight thousand dollars ($38,000) per space to develop in 2016 dollars. B.Cash-in-lieu. Mobility improvements serving commercial and mixed-use development are a public amenity and serves the mobility needs of the general population. As such, the mobility needs of the general population can be improved through various means other than the provision of on-site parking spaces, including cash-in-lieu. A cash-in-lieu payment, for those types of development authorized to provide parking via cash-in-lieu, may be accepted by the Community Development Director to satisfy the Parking Requirement, as described in Section 26.515.040, above. 1. Time of payment. The payment-in-lieu of parking shall be due and payable at the time of issuance of a building permit. All funds shall be collected by the Community Development Director and transferred to the Finance Director for deposit in a separate interest-bearing account. 2. Use of funds. Monies in the account shall be used solely for the construction of a public parking facility, transportation and mobility improvements, including vehicles or station improvements, transportation demand management facilities or programs, shared automobiles or programs and similar transportation or mobility-related facilities or programs as determined appropriate by the City. 3. Refunds. Fees collected pursuant to this Section may be returned to the then-present owner of the property for which a fee was paid, including any interest earned, if the fees have not been spent within seven (7) years from the date fees were paid, unless the Council shall have earmarked the funds for expenditure on a specific project, in which case the time period shall be extended by up to three (3) more years. To obtain a refund, the present owner must submit a petition to the Finance Director within one (1) year following the end of the seventh (7th) year from the date payment was received by the City. For the purpose of this Section, payments collected shall be deemed spent on the basis of “the first payment in shall be the first payment out.” Any payment made for a project for which a building permit is revoked or cancelled, prior to construction, may be refunded if a petition for refund is submitted to the Finance Director within three (3) months of the date of the revocation or cancellation of the building permit. All petitions shall be accompanied by a notarized, sworn statement that the petitioner is the current owner of 147 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 17 of 19 the property and that the development shall not commence without full compliance with this Chapter and by a copy of the dated receipt issued for payment of the fee. 4. Periodic review of rate. To ensure that the payment-in-lieu rate is fair and represents current cost levels, it shall be reviewed every two years. Any necessary amendments to this Section shall be initiated pursuant to Section 26.310.020, Procedure for amendment. 26.515.100. Amendments. Amendments to an approved Mobility and Parking Requirement review by the Community Development Director in coordination with the Engineering and Transportation Departments as needed. A.Amendments to Trip Reduction Measures. Off-site MMLOS infrastructure measures that have been implemented may not be amended at any time. Off-site MMLOS infrastructure measures that have not been implemented, and any on-site TDM and MMLOS measures, may be amended as outlined below. Changes shall be reviewed by the Engineering, Transportation, and Community Development Departments to ensure the proposed change is appropriate given the site’s context. 1. Insubstantial Amendment. Any amendment to TDM or MMLOS measures resulting in the same or more number of trips mitigated as the original approval may be approved administratively by the Community Development Department, after considering a recommendation from the Engineering and Transportation Departments. A land use application is required, pursuant to Chapter 26.304, Common Development Review Procedures. The applicant shall demonstrate how the new measure(s) is appropriate given current site conditions. 2. Substantial Amendment. Any amendment to TDM or MMLOS measures that reduces the number of trips mitigated shall be reviewed by City Council, after considering a recommendation from the Community Development, Engineering, and Transportation Departments. A land use application is required, pursuant to Chapter 26.304, Common Development Review Procedures, and the review shall be conducted in a duly noticed public hearing, pursuant to Section 26.304.060(E), Public Notice. City Council shall find the following standards are met: a) The proposed change responds to changed site conditions or circumstances, including but not limited to changes to land uses, site topography, or site plan. b) The proposed changes will not adversely impact the immediate vicinity. c) The proposed change meets the original intent of the approved measures. d) The proposed changes have been approved by the Community Development Director. 26.515.110 Appeals. An applicant may challenge a determination made by the City in their enforcement of the requirements of this Chapter by filing with the Community Development Director a written notice of appeal as provided in Section 26.316.030, Appeals procedures, with a full statement of the grounds for appeal. Appeals shall be reviewed by City Council, pursuant to Chapter 26.316, Appeals. 148 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 18 of 19 (Ord. No. 17-2005, §1; Ord. No. 32, 2016, §1; Ord. No. 23, 2017, §23) Section 2: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 3: Effect Upon Existing Litigation. This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4: Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5: Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty (30) days following final passage. Section 6: Public Notice A public hearing on this ordinance shall be held on the 20th day of May, 2019, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 20th day of May, 2019. Attest: _____________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor FINALLY,adopted, passed and approved this 20th day of May, 2019. Attest: _____________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to form: _____________________________ 149 Ordinance 13, 2019 Transportation and Parking Management Amendments Page 19 of 19 James R. True, City Attorney 150 Page 1 of 1 EXHIBIT A STAFF FINDINGS 26.310.050 Amendments to the Land Use Code Standards of review -Adoption. In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), Step Three – Public Hearing before City Council, the City Council shall consider: A.Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Findings: There are no known conflicts with any other portions of Title 26. The purpose of these amendments is to improve clarity in the administration of the Parking and Transportation Mitigation requirements. Staff finds this criterion to be met. B.Whether the proposed amendment achieves the policy, community goal, or objective cited as reasons for the code amendment or achieves other public policy objectives. Staff Findings: The proposed Land Use Code amendment to clarify the administration of the Parking chapter of code meets a number of goals of the AACP, as well as the stated goals of the Policy Resolution authorizing the amendment. The proposed amendment is in line with the goals and objectives of the City. Specific AACP statements this work furthers, includes: Managing Growth –I.1 Achieve sustainability growth practices to ensure the long-term viability and stability of our community and diverse visitor-based economy. Managing Growth –VIII.2 Create certainty in zoning and the land use process. Transportation –Parking V.1 Develop a strategic parking plan that manages the supply of parking and reduces the adverse impacts of the automobile. Staff finds this criterion to be met. C.Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The proposed policies and code amendments ensure the ongoing effectiveness and viability of the City’s Land Use Code by ensuring its accuracy and the effectiveness of the regulations contained therein.Staff finds this criterion to be met. 151 City of Aspen Land Use Code Part 500 – Parking Page 1 Formatted: Header Chapter 26.515 TRANSPORTATION AND PARKING MANAGEMENT Sections: 26.515.010 Purpose and Definitions 26.515.020 Applicability 26.515.030 Transportation Mitigation 26.515.040 Parking Requirements 26.515.050 Meeting Parking Requirements 26.515.060 Procedures for Review 26.515.070 Off-Street Parking Requirements 26.515.080 Special Review Standards 26.515.090 Cash-in-lieu for Parking Requirements 26.525.100 Amendments 26.515.110 Appeals 26.515.010. Purpose This Chapter establishes unified transportation and mobility standards to promote the city’s policies relating to mobility, access to employment opportunities, and sustainability. This chapter implements policies from the Aspen Area Community Plan to: • Limit vehicle trips into Aspen to 1993 levels, and reduce peak-hour vehicle-trips to at or below 1993 levels; • Use Transportation Demand Management tools to accommodate additional person trips in the Aspen Area; • Maintain the reliability and improve the convenience of City of Aspen transit services; • Expand and improve bicycle parking and storage within the Urban Growth Boundary; • Improve the convenience, safety, and quality of experience for bicyclists and pedestrians on streets and trails; • Require development to mitigate its transportation impacts; and • Develop a strategic parking plan that manages the supply of parking and reduces the adverse impacts of the automobile. This Chapter establishes a variety of ways for property owners and developers to mitigate their impacts on the transportation network. As new development and growth occur, increased burdens on the transportation system can make it more difficult for the City to meet its transportation and air quality goals. To the extent that increased travel demand can shift away from automobile dependence, development and growth can be compatible with, and even support, these goals. Formatted: Left Formatted: Left Formatted: Left 152 City of Aspen Land Use Code Part 500 – Parking Page 2 Formatted: Header To promote this shift in travel behavior, the City has transformed its approach to parking requirements to focus on the promotion and expansion of mobility options, including more walkable development patterns and a more efficient parking system, as well as the provision of public and development-based mobility resources. This will directly improve the travel experience and quality of life within growth areas, while helping to maintain the City's transportation-system and air-quality standards. This is accomplished through a new integrated approach, which incorporates the City’s Transportation Impact Analysis (TIA) Guidelines with Off-Street Parking Requirements. Where the TIA serves to evaluate the potential adverse effects of proposed projects on Aspen’s transportation systems, the off-street parking regulations focus on on-site mitigation needs resulting from the provision of parking. Applicants will use a simplified, two-tiered process that: 1. Determines the project’s TIA applicability and calculates the project’s resulting “parking requirement,” and 2. Provides a Mobility Plan that includes the applicant’s parking and mobility mitigation requirements, which includes the provision of parking, utilization of cash-in-lieu, and/or provision mobility options, including TIA mitigations if applicable. The City then reviews the project’s mitigations for parking and mobility together as part of the project’s land use application. A. Adoption of Transportation Impact Analysis (TIA) Guidelines Pursuant to the powers and authority conferred by the Charter of the City, there is hereby adopted and incorporated herein by reference as fully set forth those standards contained in the City of Aspen’s Transportation Impact Analysis Guidelines, as may be amended, updated and expanded from time to time by City Council Resolution (referred to in this Code as the “TIA Guidelines”). At least one (1) copy of the TIA Guidelines shall be available for public inspection at the Community Development, Engineering, and Transportation Departments. B. Definitions. As used in this Section, unless the context otherwise requires, the following terms shall be defined as follows: Mobility CommitmentsMeasures. Specific tools, strategies, and policies approved alternative in the Mobility Plan. These include the TDM and/or MMLOS Mitigation Tools (located on the City’s website), and include: Transportation Demand Management (TDM) and/or Multimodal Level of Service (MMLOS) Mitigation Tools prescribed by the TIA, defined as follows: • Transportation ),Demand Management (TDM) Tools, which is the application ofare strategies and policies to reduce travel demand, particularly by single-occupancy vehicles;, and Formatted: Left Formatted: Font: Not Bold 153 City of Aspen Land Use Code Part 500 – Parking Page 3 Formatted: Header • Multi-Modal Level of Service (MMLOS),) Tools, which evaluatesare improvements to transportation services of roadways fromservice quality for travelers using a variety of modes including pedestrian, bicyclepedestrians, bicyclists, and transit facilitiespassengers. Mobility Plan. A complete development mitigation plan that includes both TIAfor a proposed development’s transportation and parking requirementssystem impacts. Parking Maximum. The maximum number of Pparking Sspaces allowedprovided on-site for a designated use. before triggering compliance with Sshared Pparking Rrequirements. Parking Minimum. The minimum number of Pparking Sspaces that must be providedrequired on-site for a designated use. Parking Requirement. The sum of a project’s required Parking Units, as provided in Section 26.515.020.C.2. Parking Space, Reserved. A parking space that is managed to limit access to specified individuals or specific on-site land uses. Parking Space, Accessory. A Pparking Sspace that is managed to limit access to individuals engaged with on-site uses (residents, tenants, and their guests/customers), but are shared between all on-site land uses across different peaks in service throughout a 24-hour/day period. Parking Space, Guest/Loading. A Pparking Sspace that is managed to provide 24-hour/day access to a development for guests, deliveries and loading to the public, service providers, and other non-resident visitors to a development on a non-permanent basis. Parking Space, Public. A Pparking Sspace that is managed to provide at least 12 hours of public use in any 24-hour/day period, with approved signage to effectively identify these hours of public access. Parking Space, Priced. A Pparking sSpace – whether reserved, accessory, or public – that is priced comparable to market rates at all times of operation. Parking Space, Municipal. A Pparking Sspace that is provided within City of Aspen facilities, or directly managed by the City of Aspen, whether located in a private or City-owned parking facility. Parking Space, Reserved. A Pparking Sspace that is managed to limit access to specified individuals or specific on-site land uses. Parking Unit. A measure of a project’s parking impact, valued at $38,000 per parking space, which must be mitigated and/or accommodated via mobility commitments, parking provision, and/or cash-in-lieu. Formatted: Left Formatted: Font: Not Bold Formatted: Left Formatted: Font: Not Bold Formatted: Font: Not Bold 154 City of Aspen Land Use Code Part 500 – Parking Page 4 Formatted: Header Shared Parking, Shared. Parking that is shared between multiple, distinct land uses, on the same site or between proximate sites, to make more efficient use of spaces and reduce overall supply needs. Shared Pparking is required on a development which exceeds its on-site parking provision maximum standard. Shared parking can be used to seek provisional approval to either reduce a project’s Parking Requirement, or to facilitate the use of. Shared Pparking may include off-site parking to meet the Parking Requirement. Shared parking may includespaces and/or priced parking spaces. Surplus Mobility Measures. Any additional mitigation credits remaining after TIA-subject projects have met the TIA requirements. TIA subject-projects may apply Surplus mobility measures towards mitigation of Transportation Unit Requirements. Transportation Impact Analysis (TIA). Technical analysis guidelines for potential transportation impacts generated by development projects within the City of Aspen. 26.515.020. Applicability. This Section applies to all development and redevelopment, unless otherwise specifically exempted or limited. This SectionChapter applies to all development and redevelopment which meets the definition of Demolition, or is a Change in Use, as defined in Chapter 26.470, Growth Management Quota System. A. Determination of Applicability. The applicant may request a preliminary pre-application conference with staff from the Community Development Department to determine the applicability of the requirements of this chapterChapter for the proposed development. The following chart details the applicability of process for complying with the requirements for varyingof this Section through the creation of a mobility plan. The TIA Guidelines are available on the City of Aspen website and may be used to determine whether a project types:is subject to or exempt from the TIA. Formatted: Left Formatted: Left Formatted: Left Formatted: Font: Bold, Not Italic Formatted: Level 1 155 City of Aspen Land Use Code Part 500 – Parking Page 5 Formatted: Header 156 City of Aspen Land Use Code Part 500 – Parking Page 6 Formatted: Header Figure 1: Applicability chart illustrating how to create a Mobility Plan. C. Requirements. This Chapter requires all applicable development and redevelopment to submit a Mobility Plan, which includesaddresses the following: • TIA applicability, and TIA compliance (as applicable), 1. Transportation Mitigation. Mitigation for impacts on the City’s multi-modal transportation networks through the Transportation Impact Analysis (TIA) process, and • Parking Requirement. Mitigation for impacts on the City’s public and private parking system and the reduction Formatted: Font: 12 pt Formatted: Left Formatted: Font: Not Bold 157 City of Aspen Land Use Code Part 500 – Parking Page 7 Formatted: Header • The provision of parking demand through mobility improvements, cash , and 2.• Cash-in-lieu of parking, (as applicable), and/or parking provision. • Surplus mobility measures (as applicable). The City then reviews the project’s proposed TIA and Mobility Plan together as part of the project’s Land Use Application. 26.515.030 Transportation Mitigation. A. General Requirements. All applicable development shall accommodatemitigate its projected transportation impacts as provided in this Chapter. Refer to the Transportation Impact Analysis (TIA) for project applicability. Mobility requirements shall be satisfied through use of the following approaches, either alone or in combination 1. B. Approved Trip ReductionMobility Measures. Trip reduction measures, also known asApplicable development must provide Transportation Demand Management (TDM) and Multi-Modal Level of Service (MMLOS) measures, which are approved and implemented as provided for a development pursuant toin the Transportation Impact Analysis (TIA) Guidelines,. These measures shall be maintained for the life of the development. These credits will be used to satisfy TIA requirements. All requirements shall be incorporated in the project’s Development Agreement, pursuant to Chapter 26.490, Development Documents. C. TIA Credits. Surplus Mobility Measures. Upon completionsatisfaction of the TIA analysis, the program will be reviewed for TIA requirements, a development’s Mobility Plan may include surplus mobility measures, where creditscredit is provided over the minimum TIA requirements may beand applied towards Parking Requirements. 2. outlined in Table 26.515-1. The proportion of surplus mobility measures permitted for a development is outlined in Table 26.515-2. 26.515.040 Parking Requirements. A. General requirements. All applicable development shall accommodate its projected parking impacts as provided in this Chapter. Parking Requirements shall be satisfied through use of the following either alone or in combination. B. 1. Parking Requirement Minimums and Maximums. Calculation. Parking Requirements shall be calculated for each use within a development according to Table 26.515-1. 1.2.Parking Minimums. Development and redevelopmentProvision Minimum. Applicable development shall satisfy the minimum Parking Provision Requirement, as calculated in Table 26.515-1. Minimum parking provisions may be reduced in combination with mobility measures and transportation system impact fees in accordance with the standards in Table 26.515-2. Formatted: Bulleted + Level: 1 + Aligned at: 0.5" +Indent at: 0.75" Formatted: Left Formatted: Left, Indent: Left: 0.5", Don't add spacebetween paragraphs of the same style, Numbered +Level: 1 + Numbering Style: 1, 2, 3, … + Start at: 1 +Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Indent: Left: 0.5", Space After: 12 pt, Don'tadd space between paragraphs of the same style,Numbered + Level: 1 + Numbering Style: 1, 2, 3, … +Start at: 1 + Alignment: Left + Aligned at: 0.25" +Indent at: 0.5" Formatted: Left Formatted: Left, None, Don't add space betweenparagraphs of the same style, Numbered + Level: 1 +Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment:Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Left, None, Indent: Left: 0.5", Don't addspace between paragraphs of the same style Formatted: Numbered + Level: 1 + Numbering Style:1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" 158 City of Aspen Land Use Code Part 500 – Parking Page 8 Formatted: Header 2.3.Parking Provision Maximum. In order toTo create appropriate site planning and provision of parking, applicable development and redevelopment shall not provide on- site parking in excess of 125% of the Parking MinimumProvision Maximum requirement in the form of Reserved Parking Spaces or Accessory Parking Spaces, unless the total number of on-site spaces in excess of 125% of the Parking RequirementProvision Maximum are provided as Public Parking Spaces. C. Parking Requirement Calculation. Parking Requirements shall be met for each use according to Table 26.515-1, where requirements are calculated as Parking Units (defined in Section 26.515.010.B): Formatted: Numbered + Level: 1 + Numbering Style:1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Left Formatted: Level 1 159 City of Aspen Land Use Code Part 500 – Parking Page 9 Formatted: Header Key to Table 26.515-1: • (1) = Up to 100% of required Parking Requirement, may be provided through cash-in-lieu. • (2) = A reduction in Parking Requirement may be approved, pursuant to Chapter 26.430, Special review and according to the review criteria of Section 26.515.080 • (3) = A reduction in Parking Requirements may be approved, pursuant to Chapter 26.520, Accessory dwelling units and carriage houses. • (4) = All Single Family and Duplex dwelling units, as well as ADUs and Carriage Houses shall provide their Parking Requirement as off-street, on-site parking spaces. • SF = Square feet • NLA = Net leasable square feet of commercial space Table 26.515-1 Parking Impact Requirement Calculations Use Aspen Infill Area All Other Areas Parking Requirement (in units) Parking Requirement (in units) Parking Maximum (in units) Commercial(1) 1 unit /1,000 sf Net Leasable Space 1.25 units / 1,000 sf NLA 3 units per 1,000 sf NLA(2) Residential – Single-Family and Duplex(4) Lesser of 1 unit per bedroom or 2 units per Dwelling Unit Greater of 1.25 units per bedroom or 2.5 units per dwelling unit Lesser of 1 unit per bedroom or 2 per unit Residential – Accessory Dwelling Units and Carriage Houses(3) (4) 1 unit per unit 1.25 units per unit 1 unit per unit(3) Residential – Multi-Family (as a single use) 1 unit per Dwelling Unit 1.25 units per dwelling unit Lesser of 1 unit per bedroom or two units per Dwelling Unit Residential – Multi-Family within a mixed-use building 1 unit per Dwelling Unit 1.25 units per dwelling unit 1 per Dwelling Unit(2) Hotel/Lodge 0.5 units per Key 0.7 units per Key 0.7 units per Key(2) All Other Uses (civic, cultural, public uses, essential public facilities, child care centers, etc.) Established by Special Review according to the review criteria of Section 26.515.080. N/A Established by Special Review according to the review criteria of Section 26.515.080. 160 City of Aspen Land Use Code Part 500 – Parking Page 10 Formatted: Header D. Parking Requirement when B. Fractional Requirement Computed. When any calculation of Parking Requirements results in a fractional unit, that fractional unit may be paid through a cash-in-lieu payment, or satisfied through one whole additional on-site parking or mobility commitment credit. 26.515.050. Meeting Parking Requirements. A. General requirements. Parking Requirements shall be satisfied through the following provisions, alone or ain combination thereofand described in a project’s Mobility Plan: 1. Cash-in-lieu. Cash-in-lieu payments may be made to satisfy Parking Requirements as outlined by zone district in Table 26.515-2, and according to Section 26.515.090. 2. Provision of Off-Street Parking: 2.a.On-Site Parking. May Off-street parking may be provided on-site in applicable zone districts to satisfy Parking Requirements, with Reserved and Accessory spaces not to exceed the Parking Maximums outlined below in Table 26.515-1. Shared parking may be counted provided that a Shared Parking Agreement and a shared-parking analysis, as approved by the Community Development Director, is executed. 3.b. Off-Site Parking. Off-sitestreet parking may be counted toward the requirementprovided off-site in applicable zone districts to satisfy Parking Requirements, provided that a Shared Parking Agreement and a shared-parking analysis, as approved by the Community Development Director, is executed. Off- site parking is subject to Special Review per Chapter 26.430 and Section 26.515.080. c. Reserved and Accessory Spaces. For both On-Site Parking and Off-Site Parking, Reserved and Accessory spaces in excess of the Parking Provision Maximums outlined below in Table 26.515-1 are subject to the Shared Parking standards in Section 26.515.040.A.3. 3. Shared Parking Spaces. For both On-Site Parking and Off-Site parking, shared parking spaces may be provided contingent upon a shared parking analysis being completed and a Shared Parking Agreement being executed, as approved by the Community Development Director. 4. Mobility CommitmentsMeasures. Mobility CommitmentsMeasures, as defined in Section 26.515.010.B, may be provided, as follows: a. Where projects are TIA exempt, pre-approved alternative mobility measuresMobility Measures may be provided to satisfy Parking UnitsRequirements as outlined by zone district in Table 26.515-2. b. Where projects are subject to the TIA subject, pre-approved alternative mobility measures generated over, Surplus Mobility Measures (after the minimum TIA mitigation requirements have been met) may be provided to satisfy Parking UnitsRequirements as outlined by zone district in Table 26.515-2. Formatted: Font: Not Bold Formatted: Indent: Left: 0" Formatted Formatted 161 City of Aspen Land Use Code Part 500 – Parking Page 11 Formatted: Header The extent to which a project may satisfy its Parking Requirements with Mobility Commitments, On-Site Parking provision, and Cash-in-Lieu will vary by location, according to Table 26.515-2 below. Formatted: Indent: Left: 0" 162 City of Aspen Land Use Code Part 500 – Parking Page 12 Formatted: Header Table 26.515-2 - Parking Requirements by Zone District Location Options for Meeting Parking Requirements Additional TIA Credits (Projects Subject to TIA) Mobility Commitments (Projects Exempt from TIA) On-Site Parking Provision Cash-In-Lieu of Parking Fee Payment Commercial Core (CC) and Commercial-1 (C-1) zones Up to 2 Additional TIA Credits Up to 2 Mobility Commitments * Up to 20% of the Requirement. Up to 100% of the requirement if subgrade. Up to 100% of the Requirement Remaining Commercial, Lodging, and Lodging Overlay Zones 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) At least 60% and up to 100% of the Requirement Up to 40% of the Requirement Remaining Infill Area 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) Up to 100% of the Requirement Up to 100% of the Requirement All other Areas 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) At least 60% and up to 100% of the Requirement Up to 40% of the Requirement Parking Requirements are subject to the following standards based upon the character of the development:: 1. If the Parking Requirement is subject to establishment by adoption of a Planned Development final development plan, review is subject to Chapter 26.445, Planned Development. 2. If the Parking Requirement is established through a special review, the standards and procedures of Section 26.515.080, Special Review Standards apply. 3. If the Parking Requirement is met via cash-in-lieu, the standards and procedures set forth at Section 26.515.090, Cash-in-Lieu of Parking apply. Formatted: Left Formatted Table Formatted: Left Formatted: Left Formatted Table Formatted: Left Formatted: Left Formatted: Left Formatted: Left Formatted: Left 163 City of Aspen Land Use Code Part 500 – Parking Page 13 Formatted: Header 4. For properties listed on the Aspen Inventory of Historic Landmark Sites and Structures, a waiver of the Parking Requirement may be approved, pursuant to Chapter 26.430, Special Review, and according to the review criteria set forth below. 5. For lodging projects with flexible unit configurations, also known as “lock-off units,” each separate “key,” or rentable division, shall constitute a unit for the purposes of this section. 6. The Parking Requirement for projects with multiple, distinct land uses (residential, commercial, lodging, or other) may be lowered, if the applicant submits a shared-parking analysis, approved by the Community Development Director, which results in a peak-parking-demand measure that is less than the Parking Requirement established by Table 26.515-1. The application for a shared parking analysis shall be reviewed by The Transportation, Parking, Engineering, and Community Development Departments and approved by the Planning and Zoning Commission as a Special Review (Section 26.430). *7. Off-street parking provision on a parcel that abuts an Aspen Pedestrian Mall may only be provided in an on-site, subgrade parking structure. Alternatively, parcels abutting an Aspen Pedestrian Mall may provide all Parking Requirements through the payment of Cash-in-Lieu (Section 26.515.090). 26.515.060. Procedures for Review. Development and redevelopment applications shall be reviewed pursuant to the following procedures, as well as standards and the Common Development Review Procedures set forth in Chapter 26.304. A. Review Authority. All applications will be reviewed administratively for compliance with this Chapter and relevant guidelines in conjunction with a project’s land use application, unless otherwise specified. In all circumstances, the final land use review body shall approve the TIA, after considering a recommendation from the Engineering, Transportation, and Community Development Departments. B. Review Process. For all applicable development, expansions of existing development, and redevelopment, Mobility Plan review is completed in conjunction with relevantrequired land use reviews. Pursuant to Section, 26.304.020 of this title, Pre-application Conference, applicants are encouraged, although not required, to meet with a member of the Community Development Department to clarify requirements of this Section and to determine applicability. 1. For development only subject to administrative-level land use reviews, or for development meeting a threshold established in the TIA Guidelines but not subject to a land use review, the City Engineering and Transportation Departments may, on behalf of the City of Aspen, determine that the project meets or exceeds the requirements set forth in this Chapter and the Transportation Impact Analysis Guidelines. Formatted: Left Formatted: Left, Don't add space between paragraphsof the same style, Numbered + Level: 1 + NumberingStyle: 1, 2, 3, … + Start at: 1 + Alignment: Left + Alignedat: 0.25" + Indent at: 0.5" 164 City of Aspen Land Use Code Part 500 – Parking Page 14 Formatted: Header When development meets an established threshold, but does not require a land use review, review for compliance with this Chapter and the Guidelines shall be completed as part of the building permit application. 2. In all circumstances, the final land use review body shall approve the TIA, after considering a recommendation from the Engineering and Transportation Departments. C. Review Criteria. All development and redevelopmentapplicable projects are required to submit a Mobility Plan, which shall include and describe a project’s mitigations for TIA and Parking Requirements. The Engineering, Transportation, and Community Development Department staff shall determine whether the project conforms to this Chapter requirements using the following standards: 1. Project TIA and the resulting mitigation program meets requirements for exempt, minor, or major project categories as outlined in the TIA Guidelines. 2. Project provides full mitigation for the Parking Requirements pursuant to Section 26.515.050. 3. If existing development is expanded, additional Parking Requirements shall be provided for that increment of the expansion. 4. If existing development is redeveloped, on-site parking deficits may not be maintained unless all parking, or at least 20 spaces are provided as Public Parking. Projects failing to meet the requirements of this section may apply for a variation to the Planning and Zoning Commission through the Special Review process (Section 26.430 and Section 26.515.080). 26.515.070. Off-Street Parking Requirements. A. Applicability. Where off-street parking spaces are provided as part of a Mobility Plan, the regulations in Sections 26.515.070.(B – I) apply. B. General. Each off-street parking space shall consist of an open area measuring eight and one half (8½) feet wide by eighteen (18) feet long and seven (7) feet high with a maximum longitudinal slope of twelve percent (12%) and a maximum cross slope of five percent (5%). For developments providing more than 15 on-site parking spaces, 25% of the on-site spaces may be provided as Compact Parking in accordance with the requirements of the Engineering Design Standards. Each parking space, except those provided for detached residential dwellings and duplex dwellings, shall have an unobstructed access to a street or alley. Off-street parking provided for multi-family dwellings which do not share a common parking area may be exempted from the unobstructed access requirement subject to special review pursuant to Chapter 26.430, Special review and the standards set forth at Section 26.515.040, Special review standards, below. Off-street parking must be paved with all-weather surfacing or be covered with gravel. For residential development, a grass ring or grass-paver-type surface may be used. All parking shall be maintained in a usable condition at all times. All development or redevelopment must be in conformance with, or bring existing parking into conformance with, Engineering Design Formatted: Left, Indent: Left: 0.5", Don't add spacebetween paragraphs of the same style Formatted: Left, Don't add space between paragraphsof the same style, Numbered + Level: 1 + NumberingStyle: 1, 2, 3, … + Start at: 1 + Alignment: Left + Alignedat: 0.25" + Indent at: 0.5" Formatted: Left Formatted: Left Formatted: Left 165 City of Aspen Land Use Code Part 500 – Parking Page 15 Formatted: Header Standards, including but not limited to the access requirements outlined in Chapter 4 Transportation Design. C. Use of off-street parking. Parking spaces shall be used for the parking of vehicles and shall not be used for non-auto related uses such as storage units or trash containers. No off-street parking area shall be used for the sale, repair, dismantling or servicing of any vehicles, equipment, materials or supplies, nor shall any such activity adjacent to off-street parking spaces obstruct required access to off-street parking areas. D. Location of off-street parking. Off-street parkingOff-street parking, except shared parking, publicly accessible parking, or off-site parking as approved as part of a mobility plan, shall be located on the same parcel as the principal use or an adjacent parcel under the same ownership as the lot occupied by the principal use. For all uses, parking shall be accessed from an alley or secondary road, where one exists unless otherwise established according to this Chapter. E. Detached and duplex residential dwelling parking. Off-street parking provided for detached residential dwellings and duplex dwellings is not required to have unobstructed access to a street or alley, but shall not block access of emergency apparatus to the property or to structures located on the property. This allows for "stacking" of vehicles where a vehicle is parked directly behind another. F. State Highway 82 off-street parking. All parking required for uses fronting State Highway 82 shall, if an alley exists, be accessed from the alley, if an alley exists, and shall not enter from or exit onto State Highway 82. G. Surface parking. Surface parking is prohibited or requires conditional use review as a principal use of a lot or parcel in some Zone Districts (See Chapter 26-710). Where surface parking is permitted and eight (8) or more spaces are provided, the parking area shall include one (1) tree with a planter area of twenty (20) square feet for each four (4) parking spaces. Planter areas may be combined, but shall be proximate to the parking spaces. The Planning and Zoning Commission may waive or modify this requirement on a per case basis. Parking within structures is exempt from this landscaping provision. H. Restrictions on drainage, grading and traffic impact. Off-street parking spaces shall be graded to ensure drainage does not create any flooding or water quality impacts and shall be provided with entrances and exits so as to minimize traffic congestion and traffic hazards. I. Restrictions on lighting. Lighting facilities for off-street parking spaces, if provided, shall be arranged and shielded so that lights neither unreasonably disturb occupants of adjacent residential dwellings nor interfere with driver vision. All outdoor lighting shall comply with the outdoor lighting regulations, Section 26.575.150. Formatted: Left Formatted: Left 166 City of Aspen Land Use Code Part 500 – Parking Page 16 Formatted: Header 26.515.080. Special Review Standards. Whenever the transportation, mobility, and parking impacts of a proposed development are subject to special review, an application shall be processed as a special review in accordance with the common development review procedures set forth in Chapter 26.304 and be evaluated according to the following standards. Review is by the Planning and Zoning Commission. If the project requires review by the Historic Preservation Commission and the Community Development Director has authorized consolidation pursuant to Subsection 26.304.060.B, the Historic Preservation Commission shall approve, approve with conditions or disapprove the special review application. A special review for establishing, varying or waiving transportation, mobility, or off-street parking requirements may be approved, approved with conditions or denied based on its conformance with all of the following criteria: 1. The transportation, mobility, and off-street parking needs of the residents, customers, guests and employees of the project have been met, taking into account potential uses of the parcel, the projected traffic generation of the project, any shared parking opportunities, expected schedule of parking demands, the projected impacts on the on- street parking of the neighborhood, the proximity to mass transit routes and the downtown area and any special services, such as vans, provided for residents, guests and employees. 2. An on-site mitigation solution meeting the requirements and guidelines is practically difficult or results in an undesirable development scenario. 3. Existing or planned on-site or off-site facilities adequately serve the needs of the development, including the availability of street parking. A. Commercial Parking Facilities. Special Review is required for a commercial parking facility. A special review to permit a commercial parking facility may be approved, approved with conditions or denied based on conformance with its adherence to Commercial Design Standards and the policy goal of provision of publicly-accessible parking in areas with high public parking demand (in order to reduce vehicle congestion and emissions due to vehicles circling for parking) is not offset by the proposed commercial parking facility’s potential adverse impacts of the City’s multi-modal transportation system. For properties in zone districts where Conditional Use Review is required for a Commercial Parking Facility, Conditional Use and Special Review shall be combined. 26.515.090. Cash-in-lieu Requirements. A. General. The City conducted a parking facility analysis in the fall of 2016 and determined the costs associated with developing new parking facilities to serve the demands of development. While not all potential facilities represented the same potential expenditure, facilities considered likely to be developed by the City required an expected thirty-eight thousand dollars ($38,000) per space to develop in 2016 dollars. Formatted: Left 167 City of Aspen Land Use Code Part 500 – Parking Page 17 Formatted: Header B. Cash-in-lieu. Mobility improvements serving commercial and mixed-use development are a public amenity and serves the mobility needs of the general population. As such, the mobility needs of the general population can be improved through various means other than the provision of on-site parking spaces, including cash-in-lieu. A cash-in-lieu payment, for those types of development authorized to provide parking via cash-in-lieu, may be accepted by the Community Development Director to satisfy the Parking Requirement, as described in Section 26.515.040, above. 1. Time of payment. The payment-in-lieu of parking shall be due and payable at the time of issuance of a building permit. All funds shall be collected by the Community Development Director and transferred to the Finance Director for deposit in a separate interest -bearing account. 2. Use of funds. Monies in the account shall be used solely for the construction of a public parking facility, transportation and mobility improvements, including vehicles or station improvements, transportation demand management facilities or programs, shared automobiles or programs and similar transportation or mobility-related facilities or programs as determined appropriate by the City. 3. Refunds. Fees collected pursuant to this Section may be returned to the then-present owner of the property for which a fee was paid, including any interest earned, if the fees have not been spent within seven (7) years from the date fees were paid, unless the Council shall have earmarked the funds for expenditure on a specific project, in which case the time period shall be extended by up to three (3) more years. To obtain a refund, the present owner must submit a petition to the Finance Director within one (1) year following the end of the seventh (7th) year from the date payment was received by the City. For the purpose of this Section, payments collected shall be deemed spent on the basis of “the first payment in shall be the first payment out.” Any payment made for a project for which a building permit is revoked or cancelled, prior to construction, may be refunded if a petition for refund is submitted to the Finance Director within three (3) months of the date of the revocation or cancellation of the building permit. All petitions shall be accompanied by a notarized, sworn statement that the petitioner is the current owner of the property and that the development shall not commence without full compliance with this Chapter and by a copy of the dated receipt issued for payment of the fee. 4. Periodic review of rate. In order toTo ensure that the payment-in-lieu rate is fair and represents current cost levels, it shall be reviewed every two years. Any necessary amendments to this Section shall be initiated pursuant to Section 26.310.020, Procedure for amendment. 26.515.100. Amendments. Amendments to an approved Mobility and Parking Requirement review by the Community Development Director in coordination with the Engineering and Transportation Departments as needed. A. Amendments to Trip Reduction Measures. Off-site MMLOS infrastructure measures that have been implemented may not be amended at any time. Off-site MMLOS infrastructure Formatted: Left 168 City of Aspen Land Use Code Part 500 – Parking Page 18 Formatted: Header measures that have not been implemented, and any on-site TDM and MMLOS measures, may be amended as outlined below. Changes shall be reviewed by the Engineering, Transportation, and Community Development Departments to ensure the proposed change is appropriate given the site’s context. 1. Insubstantial Amendment. Any amendment to TDM or MMLOS measures resulting in the same or more number of trips mitigated as the original approval may be approved administratively by the Community Development Department, after considering a recommendation from the Engineering and Transportation Departments. A land use application is required, pursuant to Chapter 26.304, Common Development Review Procedures. The applicant shall demonstrate how the new measure(s) is appropriate given current site conditions. 2. Substantial Amendment. Any amendment to TDM or MMLOS measures that reduces the number of trips mitigated shall be reviewed by City Council, after considering a recommendation from the Community Development, Engineering, and Transportation Departments. A land use application is required, pursuant to Chapter 26.304, Common Development Review Procedures, and the review shall be conducted in a duly noticed public hearing, pursuant to Section 26.304.060(E), Public Notice. City Council shall find the following standards are met: a) The proposed change responds to changed site conditions or circumstances, including but not limited to changes to land uses, site topography, or site plan. b) The proposed changes will not adversely impact the immediate vicinity. c) The proposed change meets the original intent of the approved measures. d) The proposed changes have been approved by the Community Development Director. 26.515.110 Appeals. An applicant may challenge a determination made by the City in their enforcement of the requirements of this Chapter by filing with the Community Development Director a written notice of appeal as provided in Section 26.316.030, Appeals procedures, with a full statement of the grounds for appeal. Appeals shall be reviewed by City Council, pursuant to Chapter 26.316, Appeals. (Ord. No. 17-2005, §1; Ord. No. 32, 2016, §1; Ord. No. 23, 2017, §23) Formatted: Normal, Tab stops: 0.98", Left 169 RESOLUTION NO. 20 SERIES OF 2018 A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL ADOPTING POLICIES IN SUPPORT OF AMENDMENTS TO THE LAND USE CODE WHEREAS, pursuant to Section 26.310.020(A), a Policy Resolution is required to initiate the process of amending the City of Aspen Land Use Code; and, WHEREAS, pursuant to Section 26.310.020(A), the Community Development Department received direction from City Council to explore amendments to the City's miscellaneous supplemental regulations; and, WHEREAS,pursuant to Section 26.310.020(B)(1),the Community Development Department conducted Public Outreach with members of the public, local architects, designers, and planners; and, WHEREAS, the Community Development Director recommended changes to the Miscellaneous Regulations, Definition, Parking and Mobility, Growth Management, Nonconformities, ADUs/Carriage Houses, Variances, Zone Districts, View Planes, and Signs sections of the Land Use Code; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction,and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, amending the Land Use Code as described below will ensure the ongoing effectiveness and viability of the regulations within the City of Aspen Land Use Code to achieve City Council's policy and regulatory goals; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction,and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on February 26, 2018 the City Council approved Resolution No. 20, Series of 2018,by a_to_vote,requesting code amendments to the Land Use Code; and, WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for amending the Land Use Code; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Overall Code Amendment Objectives Resolution No.20, Series 2018 Miscellaneous Regulations Amendment Page 1 of 5 170 The objectives of these code amendments are to: 1. Simplify and update the calculations and measures standards in the Miscellaneous Regulations section of the Land Use Code; 2. Improve the administration and interpretation of the Miscellaneous Regulations section of the Land Use Code; 3. Maintain to the extent possible current development rights and regulations provided by the Land Use Code; 4. Ensure the Parking and Mobility regulations in the Land Use Code deliver the policy objectives identified by Council during the 2016-2017 AACP-LUC coordination process; 5. Provide enhanced aesthetic standards for temporary food vending uses; 6. Ensure that the Land Use Code provides adequate time and a fair process for property owners whose non-conforming properties are destroyed by fire or other non-purposeful acts to repair their property; 7. Provide clear direction to duplex properties as to the affordable housing mitigation requirements for the removal of an ADU that was developed as mitigation; 8. Ensure adequate time from the issuance of a variance for properties to obtain a building permit; 9. Update the view plane legal descriptions to current survey standards; 10. Allow for historic engraved signs to remain and be maintained without allowing non-historic properties to develop engraved signs without a permit; 11. Eliminate typos and errors from the Zone Districts regulations in Part 700 of the Land Use Code. Section 2: Miscellaneous Regulations Code Amendment Goals by Touie The goals of the Miscellaneous Regulations code amendments related to "Exterior Features Calculations"are to: 1. Maintain the current gross square footage allowed in the Land Use Code for residential and commercial development; 2. Simplify the distinction between those development features that contribute to the calculations floor area and those that do not; 3. Clarify and simplify the methodology for the calculation of floor area relative to exterior features; 4. Clarify or eliminate terminology to improve comprehension of code language by staff and the public. The goals of the Miscellaneous Regulations code amendments related to "Grade and Height"are to: 1. Maintain current development rights and restrictions, particularly regarding net lot area and maximum building height; 2. Simplify the definition and methodology for the determination of grade on development sites; 3. Limit excessive grading of development sites to preserve topography and limit environmental and development impacts; 4. Clearly define and reduce the allowed exceptions to height and grade to improve code interpretation and ensure appropriately scaled buildings and sites. Resolution No.20, Series 2018 Miscellaneous Regulations Amendment Page 2 of 5 171 The goals of the Miscellaneous Regulations code amendments related to "Yards and Setbacks"are to: 1. Maintain current development rights and restrictions, particularly regarding the visual and aural impacts of at-grade features within setback areas; 2. Maintain current setback distances for all zone districts; 3. Clarify distinction between setback areas and yard areas; 4. Simplify the description of features permitted in yard and setback areas, while limiting the impacts of those features on adjacent properties. The goals of the Miscellaneous Regulations code amendments related to "Demolition" are to: 1. Maintain the current proportion of deconstruction which constitutes demolition; 2. Simplify the methodology for calculating which activities and structural elements are included in the definition of demolition; 3. Improve and simplify the system for tracking demolition of properties over time to control the progressive demolition of structures. Section 3: Parkine and Mobility Code Amendment The goals of the Parking and Mobility code amendments are to: 1. Coordinate the standards for lodge and multi-family zone districts with commercial districts amended during the AACP-LUC coordination process; 2. Ensure appropriate parking and mobility access for multi-family residential development inside and outside of the Infill Area; 3. Ensure appropriate parking and mobility access for lodge development within the Infill Area; 4. Improve the clarity of the language, terminology, and standards in the Parking Mobility section of the Land Use Code. Section 4: Growth Management Amendment The goals of the Growth Management code amendments are to: 1. Improve the aesthetic standards for temporary food vending operations; 2. Coordinate the sign allowance for temporary food vending operations with the requirements for other commercial operations. Section 5: Nonconformities Code Amendment The goals of the Nonconformities code amendments are to: 1. Provide owners of destroyed properties sufficient time to submit building and land use permitting materials before the expiration of their nonconformity replacement rights; 2. Clarify that the requirement for the retention of a nonconforming use or structure is the submission of building and land use permitting materials, not the issuance of those permits. Section 6: Duplex ADU Mitiiation Code Amendment The goals of the Duplex ADU Mitigation code amendments are to: Resolution No.20, Series 2018 Miscellaneous Regulations Amendment Page 3 of 5 172 1. Ensure duplexes removing ADUs mitigate fully for the loss of affordable housing; 2. Create parity in the Land Use Code between single-family and duplex properties seeking to remove an ADU. Section 7: Variances Code Amendment The goals of the Variances code amendments are to: 1. Provide recipients of variances from land use standards adequate time to prepare and submit permitting documents; 2. Align the timeframe provided for variances to land use standards and the timeframe required to submit for a building permit. Section 8: View Planes Amendment The goal of the View Planes code amendments is to: 1. Ensure the accuracy of the legal view plane descriptions. Section 9: Signs Amendment The goals of the Signs code amendments are to: 1. Comply with the requirements of the Reed Supreme Court decision; 2. Align the standards in the sign code with Council's goal of maintaining the status quo with respect to business signage; 3. Provide existing engraved signs a means to be maintained without becoming nonconforming. Section 10: Zone Districts Code Amendment The goals of the Zone Districts code amendments are to: 1. Clarify language and standards by eliminating errors and ensuring accurate cross- references; 2. Coordinate the regulations and methodologies in Part 500 with the standards in Part 700 of the Land Use Code. Section 11 This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 12: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY,adopted this 26`x'day of February, 2018. Resolution No.20, Series 2018 Miscellaneous Regulations Amendment Page 4 of 5 173 Steven Skadron,Mayor TEST: APPROVED AS TO FORM: Linda Manning,City Cle •k aures R True,-City Attorney Resolution No.20,Series 2018 Miscellaneous Regulations Amendment Page 5 of 5 174 ASPEN CITY COUNCIL   LONG RANGE CALENDAR  LAST UPDATED 5/15/2019    Yellow indicates new information or dates since last publishing.   Strike‐through indicates deletions since last published date    5/21  4PM    Work Session  5/23  10AM    NWCCOG Council Meeting   5/27  No Meeting   Memorial Day  5/28  4PM    Work Session  6/3  4PM    Work Session  6/4  4PM    Work Session  6/5  4pm    Grand Opening “Promontory Park” at Burlingame Park I  6/10  5PM    Regular Meeting ‐ swearing in of new officials; organizational meeting for Council  member appointments to various boards, commissions and authorities  6/11  4PM    Work Session Housing Development Update  6/13  8:30AM  RFTA Board Meeting  6/17  4PM    Work Session – Rio Grande Recycle Center Community Feedback; Dockless  Bikes/Trikes/Scooters Management  6/18  4PM    Work Session – EOTC Meeting Prep; Water Update;  public litigation update  6/18   5 PM     Special Session:  executive session for purposes of conference with attorneys for  litigation and real estate matters  6/18 – 6/21      CML Conference (Breckenridge) (Rachael & Ann only)   6/20  4:30PM   CAST Reception and Annual Meeting (Breckenridge)  6/20  4PM    EOTC Meeting  6/24  5PM    Regular Meeting  6/25  4PM    Work Session – City Offices Part I: Construction Update, Plaza Update   7/1  4PM    Work Session  ‐ Finances Update Possible Council Retreat Date – ALL DAY  7/2  4PM    Work Session ‐ Possible Council Retreat Date – ALL DAY  175 2 7/8  5PM    Regular Meeting  7/9  2:30PM  TENTATIVE: joint BOCC meeting for APCHA Director interviews;   7/9  4PM    Work Session Board and Commission Interviews  7/11   8:30AM  RFTA Board Meeting  7/11  10AM    NWCCOG Council Meeting  7/15   4PM    Work Session ‐ Possible Council Retreat Date – ALL DAY  7/16  4PM     Work Session – General Fund Overview, 2020 Budget Assumptions and Benefits Update  7/22  5PM    Regular Meeting  7/23  4PM    Work Session – City Offices Part II  7/29  No Meeting    5 th Monday  7/30  4pm No Meeting – 5th Tuesday  City Manager Recruitment Applicant  Pool Update  8/5  4PM     Work Session ‐ Possible Council Retreat Date – ALL DAY  8/6  4PM    Work Session – Joint Meeting with BOCC  8/7   All day     EOTC Retreat  8/8  8:30AM  RFTA Board Meeting;   8/8    All day  ‐   City Manager Interviews  8/9   All day –   City Manager Interviews  8/12  5PM    Regular Meeting  8/12  8:30AM   RFTA Board Meeting   8/13  4PM    Work Session – City Offices Part III  8/14  4:30pm – 7pm Community Picnic on the Red Brick Lawn  8/19  4PM    Work Session  8/20  4PM    Work Session  8/22  10AM    NWCCOG Council Meeting  8/22    6PM       CAST Dinner (in Frisco)  8/23  7:45AM    CAST Meeting  (in Frisco)  8/26  5PM    Regular Meeting  8/27  4PM    Work Session    176 3 To Schedule:  Finances Updates to occur in Feb., June, Sept, and during Budget workshops  Joint BOCC meetings occur the first Tuesday of February/May/August/November  Emergency Management  5G/Wireless Infrastructure  Stormwater Fund Solvency   Retreat Dates and Topics  Sandwich Boards  Uphill Economy and Outdoor Recreation Plan  Expenditure plan for tobacco sales tax revenues    177 Let's Stop the Sale of Flavored Tobacco Products to Protect Our Kids The easy availability of candy-flavored e-cigarettes, menthol cigarettes, flavored cigars, and flavored hookah is fueling an alarming increase in youth tobacco use. Stopping the sale of all flavored tobacco products, including menthol cigarettes, is a needed step forward in reducing teen use. The Problem: Youth use of e-cigarettes by Colorado youth is among the nation's highest. And according to the 2017 Healthy Kids Colorado Survey, teens in the Summit region (includes Summit, Garfield, Eagle, Grand and Pitkin counties) use tobacco products at even higher rates than the state as a whole: • 36% use e-cigarettes • 9% still smoke cigarettes Because menthol products produce a cooling and soothing effect, and because candy-flavored tobacco products are more attractive to kids, they are considered good "starter products" for youth and other inexperienced tobacco users. A government study found that 81 percent of kids who have ever used tobacco products started with a flavored product. Far too many people — more than half of all youth and young adult smokers — now smoke menthol cigarettes. Younger populations have the highest rate of smoking menthol cigarettes. Menthol is also a popular flavor in other combustible products and in e-cigarettes. Nationally, over half(51.2%) of high school e-cigarette users use mint or menthol flavored e-cigarettes. The Solution: Stopping the sale of all flavored tobacco products is essential to protect our kids and keep us from losing a new generation to addiction. Stopping the sale of all flavored tobacco products, including menthol, is supported by: advanced health American V� Heart directions Association. COLOHAUU • ,�`�lORAO f • < 9 ¢ n. x Children's Hospital Colorado gib?>0:)" '? _ao3a._eiaF H<im couatcran.< 'll-IIS iu- oJ I,n np.IrIP y.,u. For more information or questions contact Rebecca Dubroff, American Heart Association, Government Relations Director at RebeccaDubroff@heart.org k�- Use of Flavored Tobacco Products In Aspen, over 70% of high school seniors have tried a-cigs. Menthol cigarette use among current smokers But they also use other tobacco products... in the U.S. by age,2012-2014 • Aspen had an uptick in teens using regular cigarettes."' • 10.5% of Aspen HS students have used chew, snus, Ages 12-17 53 9 cigars, or other tobacco products (not cigarettes or e- 50.OA; cigarettes), with boys having rates over 16%. ' Ages 26-34 • Of teens and young adults who ever used tobacco, 81% of teens and 86% of young adults reported that their first product was flavored.3 • Over 2/3rd of youth tobacco users report using tobacco products "because they come in flavors I like ." 3 Source:Tobacco control "we don't smoke that s***. We just sell it. We reserve the right to smoke for the young, the poor, the black and stupid" -- Tobacco Company RJ Reynolds executive, as relayed through a discussion with the former Winston Man, 19925 ProductFlavored Tobacco Menthol, like other flavors, can mask the Use Among Youth Current Tobacco Users (ages 12-17118 harshness of tobacco products, making it easier to start and seem less dangerous. HOOKAHOver 1/2 of youth who use e-cigarettes OR regular cigarettes use menthol or mint."' E-CIGARETTE 85.3 Kids who start with menthol are 80% more SMOKELESS TOBACCO 81t likely to become regular smokers, 25% more likely to become addicted.6 Product'SNUSPOLICH 80.4 ANY CIGAR TYPE 7 7 Youth Ages 12 to 17 Who Report Ftavoring is a Primary Reason for Using a Tobacco T8O . , , T73.89% "Ll V What else comes in flavors? ' HOOKAH New products on the market come in candy flavors, CIGARS SMOKE SNUS too, ie Zyn, a powdered nicotine that TOBACCO POUCHES dissolves in your mouth and is available locally. Haft the addiction among Aspen's youth. Consider • a comprehensive flavor ban that protects all kids. For more information contact Risa Turetsky Pitkin County Public Health (970) 618-1781 Citations and References 1. Healthy Kids Colorado Survey, 2017. 2. Healthy Kids Colorado Survey, 2015. 3. Ambrose, BK, et al., "Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014,"JAMA. 2015;314 (17):1871 1873. 4. "Menthol and Other Flavors in Tobacco Products," US FDA.Current as of 07-20-2018. www.fda.gov/tobacco-products/ products-ingredients-components/menthol-and-other-flavors-tobacco-products 5. National Youth Tobacco Survey,2018. 6. D'Silva,J., Boyle, R.G., Lien, R., Rode, P.,and Okuyemi, K.S. (2012). Cessation outcomes among treatment-seeking menthol and nonmenthol smokers.Am.J. Prev. Med. 43(Suppl.3),S242-5248 Graphics: • Tobacco Control,January 2011, Menthol cigarettes and smoking initiation:a tobacco industry perspective https:// tobaccocontrol.bmj.com/content/tobaccocontrol/20/Suppl_2/ii l 2.full.pdf • "Flavored Tobacco Use among Youth and Young Adults,"Truth Initiative. Jan. 16, 2018. https://truthinitiative.org/news/ flavored-tobacco-use-among-youth-and-young-adults