HomeMy WebLinkAboutagenda.boa.201906191
AGENDA
ASPEN BOARD OF ADJUSTMENT
June 19, 2019
4:30 PM, Sister Cities Meeting Room
130 S Galena Street, Aspen
I.SITE VISIT
I.A.Site Visit - 777 Gibson Avenue - Noon - Meet at Site
II.ROLL CALL
III.COMMENTS
IV.MINUTES
IV.A.Minutes - June 6, 2019
boa.minutes.20190606.docx
V.DECLARATION OF CONFLICT OF INTEREST
VI.PUBLIC HEARINGS
VI.A.Dimensional Variance Review - Minimum Setbacks
Property Referred to as 777 Gibson Ave.
Continuation of Public Hearing from June 6, 2019
Memo_777Gibson_6_19_19.pdf
Draft Resolution_BOA_6_19_19.docx
Exhibit A_Staff Findings.pdf
Exhibit B_Application.pdf
Exhibit C_Notice Affidavits.pdf
Exhibit D_Engineering Comments.pdf
Exhibit E_Parks Comments.pdf
Exhibit F_Extended Legal Description.docx
Exhibit G_Public Comment.pdf
Exhibit H_Staff Memo_6_6_19.pdf
VII.OTHER BUSINESS
VIII.BOARD REPORTS 1
2
IX.ADJOURN
Typical Proceeding Format for All Public Hearings
1)Conflicts of Interest (handled at beginning of agenda)
2) Provide proof of legal notice (affidavit of notice for PH)
3) Staff presentation
4) Board questions and clarifications of staff
5) Applicant presentation
6) Board questions and clarifications of applicant
7) Public comments
8)Board questions and clarifications relating to public comments
9) Close public comment portion of bearing
10) Staff rebuttal/clarification of evidence presented by applicant and public comment
11) Applicant rebuttal/clarification
End of fact finding.
Deliberation by the commission commences.
No further interaction between commission and staff, applicant or public
12) Chairperson identified the issues to be discussed among commissioners.
13) Discussion between commissioners*
14) Motion*
*Make sure the discussion and motion includes what criteria are met or not met.
Revised April 2, 2014
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Regular Meeting Board of Adjustment June 6, 2018
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Staff Comments ............................................................................................................................................2
Commission Comments................................................................................................................................2
Minutes.........................................................................................................................................................2
Public Comment not on the Agenda.............................................................................................................2
Declaration of Conflicts of Interest...............................................................................................................2
777 Gibson Avnue – Dimensional Variance Request – Minimum Setbacks................................................2
546 McSkimming Road – Dimensional Variance Review Front Yard Setback...........................................8
Withdraw of Resolution #4, Series of 2018 – Granting a Front Yard Variance for the property at 431/433
W. Hallam...................................................................................................................................................10
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Regular Meeting Board of Adjustment June 6, 2018
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At 4:30 p.m.; Andrew Sandler called the regular meeting to order with Board Members Jim Farrey,
Ashley Feddersen, Collin Frank, Megan Bentzin and Tim Sack present. Also present from staff Jennifer
Phelan, Ben Anderson, Sophie Varga, Kevin Rayes, Jim True and Linda Manning.
Staff Comments
Ms. Manning introduced Tim Sack, new board member.
Commission Comments
None.
Minutes
Mr. Farrey moved to approve the minutes from December 13, 2018; seconded by Ms. Feddersen. All in
favor, motion carried.
Public Comment not on the Agenda
None.
Declaration of Conflicts of Interest
None.
777 Gibson Avenue –Dimensional Variance Request – Minimum Setbacks
Ben Anderson, community development, said this is a complex property. The applicant is represented by
Chris Bendon. The request is for set back variances. The property straddles two zone districts, R15 and
R30. Because of this, the code requires the more restrictive. R30 is applied here. There is a 25 foot
minimum front yard setback, 15 foot rear and 10 on each side. The applicant is asking for five feet at the
front and three at the rear and sides. The Oklahoma Flats trail comes down Gibson. The unusual shape
comes from a remainder parcel. The Creek Tree subdivision includes the trail and the Eagles. This parcel
was left over from the subdivision. This is considered as a single lot even with all the different shapes
and dimensions of the parcel. He showed images of the site. The proposed home would sit adjacent to
the sidewalk. The strip of property going away from Gibson, showed the view off of the sidewalk. He
showed an image looking up from the trail. The trail recently went through major improvements and
regrading of the trail. There are a lot of topics to discuss regarding the property. It comes down to does
the property and conditions make a variance appropriate. What are the standards and what is the
minimum variance that could be granted to allow building on the parcel. There are specific parameters.
If granted, is the variance consistent with the code. Is it a minimum variance granting reasonable use. If
we applied the literal interpretation of the code would it deprive the applicant of rights others receive.
Are conditions present that justify the granting of a variance. If yes, what is the minimum variance.
Staff’s position is yes, because of the shape and setbacks, they were created to respond to a different size
parcel. If you overlap the setbacks there is no developable area on the property. We feel this is a lot, it
has a development right. The setbacks take away reasonable development on the property. The proposal
is five feet along Gibson and three along the other yards on the property. The application has a design for
a house. Once setbacks are granted it really is not taking into account a specific design. The variance
gets granted and it does not limit what the design looks like. The design could change between now and
permit. The approval would not lock in a design. The relationship to the sidewalk needs discussed. It is
right off the curb. It is not right of way but granted through an easement. It is not setback from the
sidewalk but the property line which is the curb. There are a few proposed head in parking spaces off
Gibson. By code the allowable floor area is 2,785. square feet. The approximate floor area of the design
is 2,430. He showed elevations from Gibson. Staff does not support the proposed setbacks. We do
support a variance just not the ones requested. Setbacks have reasons. The requirement within the
variance standards is minimum variance for reasonable use. There is no relationship to setbacks in
neighborhood context. There is no relationship to set backs found in any residential zone district. There
will be impacts to Gibson Avenue and the sidewalk during construction. There will also be impacts to the
trail and neighbors and users of the trail and sidewalk. The easement to the City of Aspen for the 4
Regular Meeting Board of Adjustment June 6, 2018
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sidewalk grants at least 10 feet from the edge of the property to maintain a sidewalk. The proposed five
foot would go in to the easement agreement. There are concerns from the engineering and parks
departments. We do not feel the proposed setbacks are minimum to allow reasonable use. Engineering
concerns relate to stormwater mitigation; where will it occur if most of the lot is filled with structure. For
heads in parking; it will require further evaluation. On constructability; what are the impacts to the
sidewalks, relationship of foundation, retaining walls and impacts to existing features. There are practical
concerns about building on a site with steep slopes on a street with no parking available to contractors.
Slope stability; we will need a steep slope analysis. Snow removal and storage; there is not a lot of room
to operate. We also need to consider the proximity of necessary foundations to existing retaining walls
for trail and pedestrian experience.
Parks concerns include the role of trees and vegetation in maintaining soil stability. Snow removal and
storage. No snow can shed from the property onto the trail. Uphill soil stabilization techniques would be
needed. There will also be visual impacts to users of the trail.
Staff recommendation is for a 10 foot front and rear yard setback and five feet for each side yard. That
constrains the developable area to the mid upper area of the lot. It will allow for approximately 1,240
square feet. For rational, we think expanded setbacks have some relationship to context and other zone
districts. We do have other zones with five feet yard setbacks. There is some justification for this
property to have a relationship with other zone districts. We will not eliminate all the concerns. These
setbacks reduce some of those concerns. It does not allow for the maximum allowable floor area to be
developed. That is not the standard. It is reasonable use. It is important to neighbors and users of the
trail to pull some of the massing away from the trail.
If you were to agree to a variance, it would not exclude development of property to be consistent of other
properties. Because of the constraints we want to make sure this or future applicants could not add
additional floor area through the landing of a TDR. Variances when granted have a 12 month expiration
unless a permit is pulled or an extension by the Board of Adjustment. The applicant has suggested
additions to the resolution. They would like a Whereas confirming the relationship to the review
standards and one giving clarity to the expiration.
Ms. Bentzin asked why did the county never address the street. Jennifer Phelan, community
development, replied vacant lots don’t have an address until there is a permit.
Mr. Farrey asked what is the height. Mr. Anderson stated it is the same as every other zone, 25 feet from
natural grade or what is more restrictive. If granted the footprint would change but every other dimension
would be the same in other zones. Mr. Farrey asked do you weigh variance versus height at all. Mr.
Anderson said it is something you can consider. The variance is limited to the footprint with the
understanding that the other requirements would apply.
Mr. Frank asked what is the dimension from parcel 1 and 2 to the retaining wall of the trail. Mr.
Anderson replied the tightest point to the trail under the 10 foot setback is about 15 feet to the trail surface
roughly. Chris Bendon said the point is 12 feet off the trail at the narrowest point. Mr. Frank asked is it
an 8 foot drop. Mr. Anderson replied there is definitely a grade on this property.
Applicant
Chris Bendon and Peter Fornell
Mr. Bendon stated Joe Krabacher and Amos Underwood are also part of the team. He showed images of
the property. It is a very bizarre property. The questions are whether circumstances represent a hardship.
The setbacks deprive any reasonable use. The second part is how you can provide us with reasonable use.
Mr. Krabacher gave the background of the property. Starting in 1946 through 1991, he included analysis
provided by the attorney. He showed the 1946 Lux Placer map of the fathering parcel. 1962 carved off
of that was the Pitkin County exception parcel. A 1967 civil action that created Trac A, Buchanan Tract.
In 1977 Buchanan conveys tract A but left out the Pitkin County exception parcel and Gibson Ave parcel. 5
Regular Meeting Board of Adjustment June 6, 2018
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1978 Creek Tree subdivision happened just to the south of our parcel. 1991 another quiet title action
occurred. The resulting parcel created this parcel. The property is described as one property with 2
parcels. Parcel 2 is 2,255 square feet. It is accessible from Gibson. There are significant slopes. That is
where the trail crosses the property. Parcel 1 is the southern one at 5,400 square feet. It is much more
accessible from Gibson. It has areas of more gentle slopes. There are encroachments from the neighbor.
The trail does not cross the parcel. The property starts at the curb line. He showed images of the parcel.
There is a carport structure located on the lot, illegally built. The property is located in two zone districts.
Both allow for single family home development. 7,691 square feet gross area with both parcels. The net
lot area is 3,614 when you take out slope reductions. 2,785 allowed floor area. This would be at the 25
foot height limit. We are proposing setbacks for 5 feet in front and 3 for all other sides. We are asking
for a footprint of 53% of the property. He showed foot prints of adjoining properties, one at 63% and one
at 68%. Lots typically in R30 allow for a development area of 66% of the lot. The two R15 properties
adjoining are 71 and 68 percent. Typical is 61% for residential development. We think 53% is
reasonable. Floor area is substantially less than what is happening in the neighborhood. We agree with
Ben there are significant development challenges on the property. There are challenges on all properties.
Given the complexity here we expect alternative construction techniques will need deployed. He showed
architectural drawings. We know we can develop a house here that meet our standards for reasonable
use. We are off the trail. We believe it is a very modest house. We want to go wider and lower as
opposed to skinner and taller. We feel it is important to stay at one story on Gibson.
On criteria, I want to make sure when you deliberate this project you are citing it and making it clear in
the record. 26.314.040A1 – generally consistent with the propose goals, objectives and policies of the
code. We think we have a legitimate right and are proposing a reasonable expectation. The second
criteria is minimal variance made possible by reasonable use of the parcel 26.314.040.A2. We feel this
allows for a reasonable sized home. We also think normal and customary accessory uses allows use of
the outdoor space. The one opportunity to do that is the long stem where we intend to build a pool.
26.314.040.A3 talks about literal interpretation for unnecessary hardship. We think we meet this
component. Two other pieces of special conditions unique to the parcel, not the result of actions by the
applicant. We have setbacks that eliminate all development. That is unique. This is not an applicant
created situation. We need to meet either A or B. We feel we meet A. B is a variance will not confer
special privileges that are not otherwise allowed for properties in the same zone district. The floor area is
reasonable and modest. Ben is right in that we are proposing a 5 foot setback on the front where there is a
10 foot easement for the sidewalk. We understand there would be a second hoop to develop that close to
the lot line. If we don’t get that second approval and have to stay within the 10 feet it is that much more
important for the 3 feet on the other side.
Mr. Farrey said the easement for the sidewalk is 5 feet. The building would be right up against that. Mr.
Bendon replied it is 10 feet from the curb. The sidewalk is about 5 feet wide. We propose to build right
against the sidewalk. The city would have to modify the easement. It is a second ask that we don’t know
if we will get.
Peter Fornell, owner, said as the property was introduced to me the most important thing I found is I want
to make sure driving down Gibson you still see Mt. Sopris. We’ve worked hard to come up with a design
that accomplishes that. We have an overall height at the street level of 18 feet. The 10 foot easement was
not something I was aware of when we started working on this. It concerns me. I could see myself
limiting the footprint on the street front to the 10 feet. In order to do that I have to have room on the
lower side closer to the lot line. The 5 foot set backs overhang vertically quite a bit from the trail. Even
with 3 feet the physical distance from the trail is quite a bit more than what you picture when you hear 3
feet. Peter showed a 3 D model. I’m a 37 year local. I value this town and appreciate being here. I’m
looking for someplace for myself to live in and retire. I think we have a reasonable use for the lot.
Mr. Sandler asked about the history of the parcel. Ms. Feddersen said it is strange some of the pieces
were not included in the subdivisions. Mr. Krabacher said the original parcel was entirely in Pitkin 6
Regular Meeting Board of Adjustment June 6, 2018
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county. Out of the fathering parcel comes the exemption parcel. Prior to subdivision regulations all you
had to do was file a plat. The railroad used to go through here as well. The Creek Tree subdivision gave
us one of the boundaries. We have not been able to find an easement for the trail. The 1991 Garish quiet
title created another boundary of the parcel.
Mr. Sandler opened the public comment.
1. Patti Clapper said she has lived in neighborhood for 32 years. She also submitted a letter. She
request the Board continue the hearing and do a site visit. It is a very complex property. It is
heavily used by traffic. Her other request is to consult the city attorney regarding the pending
litigation related to the property.
2. Summer Richards also lives in area. She submitted a letter. The applicant said it is not an
applicant created parcel. Peter bought the parcel in 2018. I believe he knew what he was getting
and that makes it his problem. I don’t think there is a hardship here. It is a small triangle of land
on a steep hill. The area has been wide open for years. I do not think a home should be on this
property.
3. Lynn Carlson, submitted letter. She asked when Peter purchased the property. She assumes he
did not pay what others pay for a buildable lot. He took a gamble buying this property. He
knows exactly what he was purchasing. He is counting on you to make this a developable lot.
There seems to be a premise that should be granted. Everything I’ve asked for that isn’t to code
the answer has been no. I don’t think you should allow yourselves to be put into a position to
make a non buildable lot buildable. Mr. Farrey said the city has acknowledged a hardship. Do
you fear the taller versus wider. Lynn said he knows he will not get the pool. That is a
throwaway. This is a win for the developer at every level. I’m not concerned it going high
instead of wide.
4. Jody Edwards, representing neighbor to the east of panhandle, Frontier LLC. It is a rare
application that screams to be denied completely. It is ridiculously steep and too small to be a
building site. Huge impacts to trail and Gibson. Staff has been told they need to come up with
something to make it a reasonable use. What ought to happen here is deny the application. It will
then go to council. They will have the conversation as to whether the city should have to pay to
have the site not developed. On Tuesday we filled a quiet title stating they own most of the
panhandle. There is a real question whether the applicant owns all of the property. If you are
going to consider a variance, setbacks create yard space. There are good reasons for setback and
should not be ignored. If granted you are required to grant the minimum variance for reasonable
use. Staff says it is not the same as maximum floor area. What is reasonable use. A lap pool is
way beyond reasonable use. Staff talked about the impact to Gibson. There are houses on the
north side of Gibson. In winter the sun is in the south. If a house is on the south it will shade the
sidewalk all winter. Staffs proposal results in 1,240 square feet. This is also way beyond
reasonable. There are a number of single wide mobile homes across the street at 600 square feet.
The setbacks proposed by staff is not the minimal to require reasonable use. There should also be
no TDRs.
Jim True, city attorney, said related to the adverse possession claim. Under our code we have a
proof of ownership provided by the applicant. Under our code this lot is as configured. I
recognize there may be litigation that disputes a part of it. That is not part of your jurisdiction.
5. Tom Todd representing Dick Volk. He also represents Aspen Stream llc located at bottom of
trail. Dick Volk showed a slide of where his home is. The trail was put in when the bridge across
the river was installed in the 60’s. He showed an image along the trail with a flag at 24 feet. Let
it impact on Gibson. I would stay away from the trail and keep the 15 on the sides and 10 on the
back. Dick handed out a letter. Tom Todd emphasized that no where it is written that all non
conforming oddly shaped parcels of land are guaranteed development. You should improve
convenience and safety for pedestrians and bikes. There should be undevelopable buffer areas for
trails. Explore new land use tools and potential property acquisitions to provide these. You are
not backed in to granting a variance. Deny the application and have it appeal to council and let
them decide what will happen to the property. As Tim stated in his objections he would never 7
Regular Meeting Board of Adjustment June 6, 2018
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have granted the easements if he knew the lot would be developed. This is not a hardship. It is a
treasure hunt.
6. Jim Morris, lives on Gibson Ave. I see setback regulations as a means to protect homeowners
from maverick development. This is a flat out gamble. I am anxious that you are suggesting this
land has to be built on. You should not come in with that approach. This will affect everyone in
the area and those who use the trail.
7. Ann Bayard, 866 Gibson. I live in a house right on the road. My property line was ¾ of the way
across the road until the road was widened. I know what it is like to live in a home next to the
road and it isn’t pleasant. There is only one place for the proposed parking. It is right off the
road and is an issue. Two more parking spaces could be an issue. I think variances are in
protection of neighbors. It is a parcel. That does not mean it is a buildable parcel or should be
built on just because it is there. She is asking for no variance. If you decide to go with staff’s
suggestion it will end up with a bigger home.
8. Hailey Carmer, Garfield & Hecht representing 885 Gibson. The very first criteria is whether the
variance is consistent with the land use code. The purpose of the code is to protect health, safety
and welfare of the citizens of Aspen. We’ve heard a lot about that tonight. It will increase user
conflicts. Construction will cause problems for users of the trail. The other condition is
minimum variance to make reasonable use of property. Is development reasonable use. Not
every property needs to be developed.
9. Mark Tye, friend of Peter for almost 35 years. The notion someone can’t do what they want with
their back yard is a throwaway, I don’t agree with that. They should be able to do what they
want. A slew of lawyers that want to stop a long time local to build a home reeks of what I don’t
like about this town. The discussion should be how big should the home be. What he is
proposing is reasonable for that lot. I don’t think what Peter is proposing is a gamble. This reeks
of not in my back yard. I say yes in my backyard. I would like to see him get what he is asking.
Mr. Sandler closed the public comment.
Our job is not to kick the can down the road but to deliberate and not to give it to council. I went and saw
the property. I understand the hardships. I saw the trail. I get it. It is our job to come up with a
resolution here not kick the can down the road.
Mr. Bendon said he wants to enter the power point and pictures of the model into the public record. The
topography is correct on the model. Every property has a right to develop. Those rights are not based on
what we bought the property for. We believe you have in front of you what you need to make a decision.
There were several comments that nothing should happen on this property. That the city should buy the
property. If the city wants to buy it, they’ve known about it for quite some time. They can contact us.
We encourage you to not use your decision making power and reshape how you look at reasonable use to
leverage a city purchase. Don’t deny it to make it cheaper for the city to buy. We have a hardship and a
proposal for reasonable us. There were several citations of the AACP. Mr. Volk said I’ve dealt with
Doug Allen since 1994. He didn’t develop it. I’m skeptical as to what has changed from that period.
Mr. Bendon said Doug Allen never pursued development on this parcel. I don’t know his reasons. Mr.
True said I don’t think what the previous owner did not did not do is relevant. He did come in to discuss
the trail. I encourage the commission to focus on the criteria. The issue if city council would buy the
property is not your issue. Your issue is whether this request meets the criteria or not.
Ms. Bentzin asked it is a fact the AACP is encompassed within our first criteria. Mr. True said the
section of the code states comdev may recommend and impose such conditions of variances to encompass
the goals of the AACP. If you want to express AACP issues and require certain conditions be added that
is appropriate. The AACP is not a regulatory document. Conditions are allowed by this section. The
director has proposed conditions such as the no TDRs.
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Regular Meeting Board of Adjustment June 6, 2018
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Mr. Sandler asked about the sidewalk and where the house will but up to. Mr. Bendon showed an image
of the sidewalk easement. The proposal is to develop 5 feet from the property line or the edge of the
sidewalk. If granted we would have to ask the city to vacate the other half of the easement.
Mr. Anderson replied staff agrees with that.
Mr. Farrey asked has the applicant agreed because of massing that TDRs will not be used. Mr. Bendon
stated that is an issue that came up with staf’fs analysis. We are fine not landing a TDR here and
accepting that condition.
Mr. Frank asked are there any examples of a rear yard setback variance like this. Mr. Anderson replied in
general, staff is reluctant to recommend variances. We feel the dimensions are there for a reason. We do
agree that applying the R30 set backs create a hardship. What is reasonable and has context to the
neighborhood. That is how we landed on the reduction to 10 at the rear yard. The lot just to the south is
subject to 10 foot setbacks. This is an important rear yard with the trail. We feel there is a justification
where that is a setback that is present. Mr. Frank said in the worst case the corner of the lot closest to the
trail could be a 10 foot setback. Moving south east are there any examples of that setback coming to the
property line. He asked if there is a possibility of varying the setback along the rear. There has been a lot
of talk as to if you can build on the lot. The city has acknowledged it is a developable lot and there is a
hardship. We have to start with someone is going to build on the lot. Mr. Sandler said we look for facts
and peripheral information. You are building on 53% where most are doing 61. Ms. Bentzin said the
first criteria says it isn’t in the right mindset of the Title and the code to develop here than that is a
question. I think there is shown here that there is a right to develop and you can’t build on eight inches.
We need to make the allowance and the variance. The question is the dimensions. I agree with staff that
the reasonable use is 10 feet on the front and back and 5 on the side. Ms. Feddersen said we are not the
ones to decide if it is developable. It has already been decided that it is. I agree with a lot of the public
comment as to how the impact to the trail will change. I am for staff recommendation.
Mr. Frank said if we pass a resolution it doesn’t preclude the city from making an offer.
Mr. Farrey stated 26.314 there is a defined hardship. Mr. Frank and Ms. Feddersen said yes.
Mr. True said it is clear you have determined the criteria has been met. The next issue is what is the
minimal variance required for reasonable use.
Mr. Farrey said the variance does not confer upon the applicant any special privileges. My concern for
the neighborhood is 10 and 10. There are properties that are closer to the street. I think closer to the
street is preferable than closer to the trail. Mr. Frank said are we saying the sidewalk isn’t as important.
Mr. Fornell replied I am interested in a compromise. I feel like a concession along the street and giving a
10 foot setback is in the community interest not just mine or the neighbors. I have to stress that I need the
back yard to be smaller to have any semblance of a decent home. You are well below the house when
walking the trail.
Mr. Farrey made a motion to continue the hearing and to work on a resolution. Seconded by Mr. Frank.
He stated he would like an exhibit showing a sliding scale for the rear yard. Mr. Bendon said if we were
to propose 10 foot front the proposed 3 foot side and rear yard. To propose from the pinch point we are
no closer than 5 or 8 feet from the corner. It would prohibit us from being closer to the trail. Mr. Frank
said I think that would resolve a lot of the issue. Mr. Bendon said that is fairly easy to describe. That
would give you 18 feet away from the trail. Ms. Phelan said I think it would be worth wile to evaluate
this. Mr. True said there is a motion and a second to continue this. It will need to be continued to a date
certain. He asked if the board would like a formal site visit. All board members support that.
Ms. Phelan suggested June 27th. Mr. Farrey suggested the 20th. After discussing schedules, Mr. True said
the proposal would be to have a site visit on the 19
th at noon. The meeting will be at 4:30 on the 19th. We
do not argue the application at the site visit. We are only pointing out locations and slopes. I do believe a
site visit could be helpful. 9
Regular Meeting Board of Adjustment June 6, 2018
8
All in favor, motion carried.
546 McSkimming Road – Dimensional Variance Review Front Yard Setback
Sophie Varga, community development, said the applicant is requesting a dimensional variance reducing
the 30 foot setback to varying 0 to 19 to expand the driveway and retaining walls. The property is located
on the east side of town to the north of Highway 82. Currently it is a single family residence located in
the Aspen Grove subdivision. The home was built in 1964 and annexed in 1987. The applicant
purchased the property in 2018. It is at the bottom of Sumuggler mountain. There is steep topography.
More than 50% is greater than a 20% slope. She showed images of existing conditions. The current wall
is located in the setback up to seven feet in height. The code only allows retaining walls in the setback up
to 30 inches above grade. She showed a map of the site. The applicant is proposing to demolish the
existing retaining wall and replace it with an engineered one. It will go further back in the setback so the
driveway will be bigger. An additional wall on the lower side would also be necessary to support the
larger driveway. Both would be above the allowed 30 inches in places. She showed a visual of the
redeveloped driveway and walls. The applicant believes the steep slope creates a hardship. The variance
will enable an acceptable driveway width for life safety reasons. It would allow for an easier turn around
to exit the driveway. The new wall will more effectively retain the slope above the house. The structural
memo submitted states it would be prudent to replace the wall but not a life safety issue. A civil engineer
memo was submitted regarding typical required widths of driveways for emergency access. The
requirements reflected in the memo are not consistent with the City requirements. For a setback variance
the property owner must demonstrate reasonable use has been withheld by the city and can only be
achieved by grant of variance. Staff believes none of the three criteria has been met. For Criteria 1 we
believe there is a reasonable expectation that zoning limitations are observed and enforced as uniformly
as practicable. The granting of this variance would not be consistent with the purposes, goals and
objectives of Title 26. In terms of criteria 2, this variance is not the minimal necessary for reasonable
use. It’s been in use since 1964. Reasonable use of the property and driveway has been established. For
criteria 3, we don’t believe a special circumstance or condition exists that is not applicable to other
parcels, structures or buildings in the same zone district. The current design presents an inconvenience
not a hardship. Granting the proposed setback variance would grant special prividgles to the parcel to
avoid the requirements of the R15B zone district. The inconvenience is not unique and could be remedied
by a different design. The lower wall is purely for convenience of a wider driveway. There are alternate
design solutions that could lessen the impact of the setback. Staff is recommending denial of the
variance.
Applicant – Tim Andrulaitis and Colleen Loughlin Zone 4 architects. We are asking for a variance due to
the front being a unique situation. Parts of the existing house are in non conformance. The rock wall that
is currently present is right in front of an area to retain the soil and the road above. We are asking for a
variance because the existing wall needs to be replaced with an engineered wall for life safety reasons.
The existing wall will not retain the hillside or road above.
Mr. Sandler asked when was the wall created. Mr. Andrualitis replied he is not sure. We must seek the
variance to change the footprint of the wall for emergency vehicle access and the installation for soil
retention for a portion of the wall to the north of the residence. It is imperative that an ambulance can
access the property. The rock wall is at its highest in the corner. In order to get a micro pile machine
back there it needs to widen. The existing wall exceeds 30 inches in a setback. It would have required a
variance when originally constructed. He showed images of the existing rock wall. It is not designed to
retain soil. That is a life safety issue. They have six kids. In response to criteria. Criteria 1 – the existing
condition of the wall is non conforming. To remedy life safety concerns a new engineered wall needs to
be built. We belief the health, safety and welfare of the citizens and infrastructure is consistent with the
purpose, goals and objectives of the land use code. The request is consistent of the goals of the code. The
proposed design is not visible from the road and will not have a negative impact to the neighbors. Criteria
2 – existing wall does not allow for reasonable continued use of the property. The new wall is the same 10
Regular Meeting Board of Adjustment June 6, 2018
9
height and location of the existing wall. There are two locations where the wall configuration has
changed in order to allow emergency access and for constructability. We believe this is a conforming
wall per the land use code. The applicant believes the wall conforms to Title 26 standards as designed.
Criteria 3- the unique condition on this parcel is that there is a non engineered rock wall over four feet in
height which is currently failing. Other lots in this zone district and neighborhood either have engineered
walls over four feet tall or slopes that are not as sever. The applicant has not taken any actions which
have either created or exasperated the current situation. There are multiple properties in the neighborhood
which have engineered walls exceeding 30 inches in height where steep slopes exist. We are not setting
the precedent, it has already been set. Our hardship is basically life safety and property damage.
Mr. Sack asked for a turn around to be improved, this is the width for it to happen. Mr. Andrualitis
replied it is not improving the turn around. This is access for the corner for the retaining wall to be built.
Mr. Sack asked where is the garage. Mr. Andrualitis showed the location of the garage on the image.
Mr. Farrey said it is a two prong issue; A and B. Is the crux of the issue the height difference. Mr.
Andrualitis said the current rock wall is non conforming. There is no rock wall at location C. Mr. Farrey
asked is C an issue with the city. Ms. Phelan said we disagree with the wall measurement. Mr.
Andrualitis asked what part of this is non conforming. I can lower C to 30 inches.
Ms. Bentzin said assuming wall C is 30 inches there is no problem. Ms. Phelan replied correct. Mr.
Andrualitis said A and B is where the existing rock wall is. It gets widened at B for constructability and
A for emergency vehicle accessibility. Mr. Farrey said for B as far as the equipment getting in there. Do
you define that as a hardship or a cost allocation. Mr. Andrualitis said we view A as life safety issue. Mr.
Farrey asked what you are proposing versus the existing is 3 feet. Mr. Andrualitis replied approximately.
Ms. Varga said currently an ambulance can get down the driveway. Mr. Farrey said to me not having the
equipment access is a cost issue not a hardship.
Mr. Sandler opened the public comment.
1. Tom Sherlock, builder, said this is a really tricky location. The rock wall is part of that. This all
came up when the water line needed replaced. It was pretty evident the rock wall was falling apart
and needed addressed. To allow the wall to stay would not be fitting to the home or the use. I
don’t think they are trying to take advantage of anything.
Mr. Sack asked what is keeping you from rebuilding the wall where it currently is. Mr.
Andrualitis replied for portion A we wanted it wider for ambulance access. Portion B is
constructability. Mr. Sack said is there an existing rock wall behind the house. Mr. Andrualitis
replied yes. Ms. Bentzin asked are the other walls in the neighborhood conforming. Mr.
Andrualitis stated probably not. Mr. Sandler asked how the wall is measures. Mr. Andrualitis
replied it is surveyed.
Mr. Sandler closed the public comment.
Mr. Sandler said the hardships are life safety for the family and the home. Ms. Feddersen said there are
safety issues including life safety. There is no public here saying the wall will encroach on their property.
Mr. Frank said reasonable access to the site is part of the development right of the property and are
permitted in the setback. Due to the site constraints retaining walls over 30 inches would be required to
grant access to the site. At the same time the engineering department is denying access from the other
side of the property. Those factors create an additional hardship. Ms. Phelan stated the commissioners
have made some descent points based on the criteria. Mr. Frank said to add on to that they are not
getting special treatment. There is clearly existing walls over the 30 inches in the setback. Ms. Bentzin
said my concern with labeling this as a special condition or unique parcel is for future cases. The fact
there is a wall holding up dirt is typical in the community. The rules are in place for a reason. Granting a
special condition here may make us liable to future concerns. Mr. Frank said I agree with that. A
condition that would satisfy com dev is a stepped retaining wall. If you built that it would restrict access
to the home. Mr. Andrualitis said I think the rock wall was done rogue to widen the area. There is no 11
Regular Meeting Board of Adjustment June 6, 2018
10
other rock wall that tall that is not engineered. Mr. Frank said is there any requirement for your current
work to grade the wall to conform to current building standards. Mr. Andrualitis said we are proceeding
after the outcome with a landscaping permit. Anything will be addressed at that point. Mr. Frank asked
is wall C in this resolution somehow. Ms. Phelan said the question is can it meet code or not. Mr.
Andrualitis replied we can meet code. Mr. Farrey said I think you should amend the application to only
include A and B. I don’t feel comfortable weighing in on something not defined. Mr. Farrey made a
motion to amend the application to drop C. We should deliberate a bit more on A and B. Mr. True said I
am a little confused about the resolution. Reduce from 30 feet to a varying 0 to 19. Ms. Phelan said the
site plan shows the retainage as an exhibit. Mr. Andrualitis said we are asking for a variance to do a taller
wall. Ms. Phelan said basically the setback varies based on the wall. Mr. Farrey said I think you are
asking the new wall to move by 3 feet as well. Ms. Feddersen said that is for the access. Mr. True replied
that is consistent with varying the setback from 0 to 19. Ms. Phelan said this feature which should be 30
inches is taller than allowed in the area. Are you comfortable with that request. It is not addressing
anything designated as C. Mr. Farrey said the non conforming non engineered wall is at a higher height
and you want to replace it. In addition, you are asking for a 3 foot swing and the hardship is life safety.
Mr. Andrualitis replied A is for ambulance access and B for reality. It cannot be constructed without
widening it. Mr. frank said it would deny access to the garage and an ambulance would never be able to
turn around. Mr. Frank moved to adopt Resolution #1, Series of 2019 omitting wall C. Seconded by Ms.
Federson.
Mr. Farrey said there is a hardship based on life safety of the non conforming retaining wall. Mr. Frank
said the special situation already exists. Mr. True said the life safety concern is an important aspect of
this. I’m comfortable with your record.
Mr. Frank asked should the resolution be specific to A and B so other things could not be moved inside
the setback. Mr. true said page 149 the resolution says no other development should be permitted in the
amended front yard. Mr. Farrey said I want the record to reflect an engineered wall to replace a non
conforming wall.
Roll call vote. Board Members Feddersen, yes; Farrey, yes; Bentzin, yes; Frank, yes; Sandler, yes.
Motion carried.
Withdraw of Resolution #4, Series of 2018 – Granting a Front Yard Variance for the property at
431/433 W. Hallam
Kevin Rayes, community development said this is regarding the variance previously approved in
December by the Board of Adjustment. The property contains an existing duplex in the west end. The
proposal was to redevelop with a single family dwelling. Part of the design included several large spruce
trees in the rear yard. Parks would not approve the trees for removal. They came here and received a
setback. Following the hearing we received an appeal that went to council. Council remanded back to
BOA for how it meets the criteria. Following that, parks approved removal of the trees. The resolution
voids the variance as long as the trees are removed. Staff agrees with the proposal to void the variance.
Given the trees can be removed a variance is no longer necessary.
Mr. Sandler opened the public comment. There was none. Mr. Sandler closed the public comment.
Ms. Feddersen moved to withdraw Resolution #4, Series of 2018; seconded by Mr. Sandler. Roll call
vote. Board Members Bentzin, yes; Feddersen, yes; Frank, yes; Farrey, yes; Sandler, yes. Motion
carried.
AT 7:50 pm Ms. Feddersen moved to adjourn; seconded by Mr. Farrey. All in favor, motion carried.
Linda Manning
City Clerk
12
MEMORANDUM
TO: Board of Adjustment
FROM: Ben Anderson, Planner II
THRU: Jennifer Phelan, Deputy Planning Director
RE: A property referred to as 777 Gibson Ave; Setback Variances
MEETING DATE: June 19, 2019 – a continued public hearing from June 6, 2019
Applicant
777 Gibson, LLC
Peter Fornell, Manager
Representative
Chris Bendon
BendonAdams, LLC
Address
Not yet formally addressed
Referred to as 777 Gibson Ave.
Legal Description
A PARCEL OF LAND LOCATED IN THE SOUTHEAST
ONE-QUARTER OF THE SOUTHWEST ONE-
QUARTER OF SECTION 7, TOWNSHIP 10 SOUTH,
RANGE 84 WEST OF THE 6TH P.M. AND BEING
MORE PARTICULARLY DESCRIBED IN EXHIBIT “A”
OF QUIT CLAIM DEED RECORDED OCTOBER 9, 1991
IN BOOK 658 AT PAGE 784, CITY OF ASPEN,
COUNTY OF PITKIN, STATE OF COLORADO. (See
Exhibit A for more information on legal
description)
Parcel ID #
2737-073-00-014
Zone District
Property is located in both R-30, Low Density
Residential and R-15, Moderate Density
Residential – dimensions for R-30 used for
analysis as required by code.
Land Use Request
Variances to front, side, and rear yard
minimum setback requirements.
Figure 1. Location of ”777 Gibson Ave.” Represented in blue, the lot
is adjacent to the intersection of Gibson and the Oklahoma Flats
trail.
Summary: The application proposes variances to front, rear and side
yard setbacks in the R-30 Zone District to accommodate a single-family
residence on an oddly shaped lot that contains steep slopes, a sidewalk
easement and a City of Aspen trail.
Staff Recommendation: Staff recommends approval of a 10 feet front
yard setback, a 10 feet rear yard setback, and 5 feet side yard setbacks.
These dimensions are different from those requested by the applicant. 13
Page 2 of 5
REQUEST OF THE BOARD OF ADJUSTMENT
The Applicant is requesting the following approval from the Board of Adjustment:
• Variance (Chapter 26.314) to grant dimensional variances from the minimum front, rear and side
yard setbacks required by the R-30 zone district. (The Board of Adjustment is the final review
authority.)
UPDATE
The staff memo from the June 6th hearing is attached as Exhibit H. The memo provides an analysis of
the criteria required for granting a variance and evaluates the Application through the lens of these
criteria and provides recommendation.
The June 6th hearing, following extended discussion of the proposal in the Application and the staff
recommendation, was continued until June 19th to allow for a formal site visit and to consider alternatives
to the proposed setbacks for the property. In response to this direction, a site visit has been scheduled
for June 19th at 12:00pm.
Originally, the application proposed a five (5) feet front yard setback, and three (3) feet setbacks for the
rear and side yards. In response to this proposal, and in consideration of the review criteria, staff
recommended a ten (10) feet setback for the front and rear yards, and a five (5) feet setback for the side
yards.
The Applicant has submitted an amended proposed setback of ten (10) feet for the front yard setback,
but has remained committed to a three (3) feet set back for the rear and side yards.
STAFF DISCUSSION
While staff agrees that the property has a hardship related to setbacks, and that a variance to setbacks
is appropriate based on the criteria, staff did not agree with the proposed setbacks in the initial
application, nor can we support the most recent amendment to the proposal.
To reiterate, staff is most concerned with two elements of the required criteria:
1) The grant of the variance will be generally consistent with the purposes, goals, and objectives
of this Title (the Land Use Code) and the Municipal Code; and,
2) The grant of the variance is the minimum variance that will make possible the reasonable use
of the parcel, building or structure; and…
Staff cannot make findings that either of these criteria are met by the Applicant’s previously or currently
proposed setbacks.
First, the table below shows the required minimum setbacks for all of the residential zone districts in the
city. The Applicant’s proposed setbacks hold no relationship to any dimensions in any other zone district.
Staff is particularly concerned with the impacts to the Oklahoma Flats Trail and the potentiality of
structures – including the home or a pool being located three (3) feet from a neighbor’s property line.
14
Page 3 of 5
Setbacks serve a variety of important purposes, inclusive of buffering between properties and providing
areas to conduct maintenance on a structure without having to perform work from an adjacent property.
None of which can be met by a three feet setback in a residential zone district. In summary, there is no
basis for a three (3) setback anywhere in the Land Use Code and staff cannot support this proposed
dimension in light of the required criterion.
Table 1. Minimum setbacks in City of Aspen residential zone districts
R-3*
High
Density
R-6
Medium
Density
R-15
Moderate
Density
R-30
Low
Density
Applicant
Proposal
Staff
Recommendation
Front yard
setback 5 10 25 25 5 10
Rear yard
setback 5 10 10 15 3 10
Side yard
setback 5 5 10 10 3 5
*R-3 is limited to a mobile home park as its only permitted residential use
Secondly, in order to justify a variance, the variance, again, needs to be the minimum necessary to allow
reasonable use of the property. It does not require allowing the “maximum” use or the “desired” use. It
does not require allowance of all of the accessory uses that would typically be allowed in residential
development (example: a pool). Instead, all that is required in this case is a footprint that would allow
the development of a single-family residence of some reasonable size. In summary, staff cannot support
the proposed dimension in light of the required criterion.
Additionally, as was discussed in more detail in the staff memo from June 6th, this is a very difficult site
to develop, regardless of the setback issue. The following issues were identified:
• impacts to Gibson Avenue and sidewalk during and after construction
• impacts to Oklahoma Flats Trail during and after construction
• impacts to neighbors and users of the trail and sidewalk
• the easement to the City of Aspen for the sidewalk – grants at least 10 feet from the edge of the
property along Gibson – granting a front setback of less than 10 feet would create a conflict with
the easement.
• City of Aspen Engineering Department concerns
• Parking / Access to Gilbert
• Stormwater Management
• Construction Management Plan issues
• Pedestrian experience on trail and sidewalk
• Soil stability
• City of Aspen Parks Department concerns
• Tree and vegetation removal
• Snow removal and management
• Trail user experience
15
Page 4 of 5
Staff acknowledges that the Applicant’s proposal to increase the front yard setback to ten (10 feet),
reduces the concern about the sidewalk easement on Gibson, but the other conditions on the property
remain. While several of these topics would not be fully reviewed or resolved until building permit
submittal for compliance with other City code requirements, it is staff’s position that these issues are
exacerbated as setbacks become smaller.
Staff’s recommendation continues to support the following variances:
• 10 feet front yard setback
• 10 feet rear yard setback
• 5 feet side yard setback
If granted, these variances would result in a building envelope that is
approximately 1240 square feet in area, 65 feet across and between 15 and
30 feet deep. This is depicted in Figure 2 at left. Staff finds that there is
basis in the Land Use Code (R-6 setback dimensions) and similar contexts
are found in the neighborhood (example: 10 feet rear yard setback in R-
15). While this recommendation does not eliminate the concerns with the
development of the property, it reduces them and provides non-
developed areas on-site that can be used help to mitigate some of these
concerns.
RECOMMENDATION
Staff recommends that the Board of Adjustment approve variances for a
front yard setback of ten (10) feet, rear yard setback of ten (10) feet, and
side yard setbacks of five (5) feet for the property referred to as 777
Gibson. These are reductions from the required setbacks of the R-30
zone district. Additionally, staff recommends that this site, if variances
are approved, could not be a receiving site for a TDR.
RECOMMENDED MOTION
The draft resolution is written in support of staff’s proposal of a reduced,
10 feet front yard setback, a 10 feet rear yard setback, and 5 feet side
yard setbacks. The following motion can be used to approve the
resolution as written:
“I move to approve Resolution No. XX, Series 2019, granting approval
for a variance to a front yard setback at the property referred to as 777
Gibson Avenue, reducing the required front yard setback to 10 feet, the
rear yard setback to 10 feet and the side yard setbacks to 5 feet, subject
to conditions as stated in the resolution.”
ALTERNATIVE MOTIONS
Alternative 1 – Support of the Applicant’s Request
“I move to approve Resolution No. XX, Series 2019, granting approval for variances to front, rear and
side yard setbacks at the property referred to as 777 Gibson Avenue, but amending the Draft Resolution
10 feet,
front
yard
setback
10 feet,
rear yard
setback
5 feet,
side yard
setbacks
5 feet,
side yard
setbacks
Figure 2. Staff
recommendation
16
Page 5 of 5
to establish the required front yard setback at 10 feet, the rear set back at 3 feet and the side yard
setbacks at 3 feet, and subject to conditions as stated in the resolution.”
Alternative 2 – Denial of the Variance.
“I move to deny Resolution No. XX, Series 2019, denying approval for a setback variance at the property
referred to as 777 Gibson Avenue.”
Attachments:
Exhibit A – Variance Review Criteria, Staff Findings
Exhibit B – Application
Exhibit C – Public Notice Affidavits
Exhibit D – Comments from the City of Aspen’s Engineering Department
Exhibit E – Comments from City of Aspen’s Parks Department
Exhibit F – Extended Legal Description
Exhibit G – Public Comments received through 6/14/19 -*new comments
Exhibit H – Staff Memo from 6/6/19
17
Board of Adjustment Variance Request
“777” Gibson Ave.
Page 1 of 4
RESOLUTION NO. XX
(SERIES OF 2019)
A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT GRANTING
APPROVAL FOR DIMENSIONAL VARIANCES TO SETBACKS, FOR A PROPERTY
LEGALLY DESCRIBED AS: A PARCEL OF LAND LOCATED IN THE SOUTHEAST
ONE-QUARTER OF THE SOUTHWEST ONE-QUARTER OF SECTION 7,
TOWNSHIP 10 SOUTH, RANGE 84 WEST OF THE 6TH P.M. AND BEING MORE
PARTICULARLY DESCRIBED IN EXHIBIT “A” OF QUIT CLAIM DEED
RECORDED OCTOBER 9, 1991 IN BOOK 658 AT PAGE 784, CITY OF ASPEN,
COUNTY OF PITKIN, STATE OF COLORADO.
Parcel ID No. 2737-073-00-014
WHEREAS,the Community Development Department received an application for the
property referred to as 777 Gibson Avenue(the Application) from777 Gibson, LLC; Peter Fornell,
Manager (The Applicant) represented by Chris Bendon of BendonAdams, LLC, for the following
land use review approval:
Variance, pursuant to Land Use Code Chapter 26.314; and,
WHEREAS,the subject property is zoned Moderate Density Residential (R-15); and, Low
Density Residential (R-30); and,
WHEREAS, all code citation references are to the City of Aspen Land Use Code in effect
on the day the application was deemed complete – February 27, 2019, as applicable to this Project;
and,
WHEREAS, the Community Development staff reviewed the Application and provided
recommendation; and,
WHEREAS, the Board of Adjustment reviewed the Application at a duly noticed public
hearing on June 6, 2019; and,
WHEREAS, the Board of Adjustment reviewed the Application, considered staff
recommendation and found the approved dimensional variance to be in compliance with and
meeting the standards of review found in Section 26.314.040.A.1,2.and 3; and,
WHEREAS,during a duly noticed public hearing on June 6, 2019, the Board of
Adjustment, following a motion and second to continue the hearing to June 19, 2019 and approved
the motion to continue by an six to zero (6 - 0) vote; and,
WHEREAS,during the continued public hearing on June 19, 2019, the Board of
Adjustment approved Resolution No. XX, Series of 2019, by an X to X (X - X) vote granting
approval of a Dimensional Variance Review, as identified herein.
18
Board of Adjustment Variance Request
“777” Gibson Ave.
Page 2 of 4
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF THE
CITY OF ASPEN, COLORADO THAT:
Section 1: General Approval
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the
Board of Adjustment hereby approves a Setback Variance for the property referred to as 777
Gibson Avenue and described as follows:
1. Front yard setback is reduced from 25 feet to ten (10) feet.
2. Rear yard setback is reduced from 15 feet to ten (10) feet.
3. Side yard setbacks are reduced from ten (10) feet to five (5) feet
4. The setback variances apply only to Parcel 1, identified in a site improvement survey.
(attached as Exhibit A)
5. Pursuant to an access easement (recorded at Page 773, Book 368) for the Gibson
Avenue sidewalk, the front yard setback shall continue to be measured from the
property line along Gibson Avenue.
6. All other setbacks and dimensional standards required in the R-30 Zone District remain
in effect.
7. The approved variances do not exempt the property from compliance with all other
aspects of the Aspen Municipal Code, including, but not limited to building codes and
engineering requirements.
8. A TDR is not permitted to be landed on this lot as a condition of receiving the variances.
9. Unless otherwise extended or a building permit application is accepted as complete by
the City of Aspen, this variance shall expire 12 months from the date of approval.
Section 2:
All material representations and commitments made by the Applicants pursuant to the
development proposal approvals as herein awarded, whether in public hearing or documentation
presented before the Community Development Department and the Board of Adjustment
Commission, are hereby incorporated in such plan development approvals and the same shall be
complied with as if fully set forth herein, unless amended by other specific conditions or an
authorized authority.
Section 3:
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 ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4:
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.
19
Board of Adjustment Variance Request
“777” Gibson Ave.
Page 3 of 4
FINALLY,adopted, passed and approved this 19th day of June 2019.
Approved as to form:Approved as to content:
________________________________________________________
James R. True, City Attorney Andrew Sandler, Chair
Attest:
___________________________
Linda Manning, City Clerk
Exhibit A – Site Improvement Survey with identification of approximate building envelope
based on approved setback variance.
20
Board of Adjustment Variance Request
“777” Gibson Ave.
Page 4 of 4
Exhibit A
Approximate buildable area created by
approved variance to minimum setbacks
10’ front, 10’ rear, 5’ side
21
Exhibit A
Variance Standards and Staff Findings
26.314.040. Standards applicable to variances.
A. In order to authorize a variance from the dimensional requirements of Title 26, the appropriate
decision-making body shall make a finding that the following three (3) circumstances exist:
1. The grant of variance will be generally consistent with the purposes, goals, objectives and policies
of this Title and the Municipal Code; and
Staff Findings: Setbacks have numerous, important purposes within the Land Use Code. The
proposed setbacks in the application undermine these purposes of setbacks by failing to give
appropriate buffers between the public right-of way and neighboring properties. While staff
acknowledges the need for a variance from the required R-30 setbacks, staff can not make
findings on this standard with the proposed setbacks in the Application.
Staff’s proposed variance to setbacks has basis in other (and neighboring) residential zone
districts. 10 feet in the front is consistent with R-6. 5 feet on the sides is consistent with R-6. 10
feet in the rear is consistent with several zone districts, including R-15 – in which a portion of the
property in question lies. These dimensions are less than those required in the R-30, but they do
relate to other residential zone districts – with the purposes of creating buffers with neighboring
properties and uses. Staff finds that the proposed variance in the staff recommendation (10’ front,
10’ rear, and 5’ side setbacks), while not eliminating all of the potential concerns of development
on this property, is consistent with the Land Use Code.
2. The grant of variance is the minimum variance that will make possible the reasonable use of the
parcel, building or structure; and
Staff Findings: Based on a net lot analysis, the approximate maximum allowable Floor Area for
the property is 2,785 square feet. The proposed design in the Application is approximately 2,430
square feet. While the steep slopes on the property limit allowable Floor Area from what would
otherwise be allowed on a flat similarly sized lot, this calculation does not set the threshold for
“reasonable use”. Reasonable use is not the same as maximum allowable development. In this
case, the site constraints set a different standard for “reasonable use”. The shape of the lot; the
slope of the lot; the relationship of the lot to Gibson; the relationship to the Oklahoma Flats trail
all contribute to a different standard for “reasonable use”. Staff finds that the proposal in the
Application goes beyond reasonable use and the request goes beyond the threshold of a
“minimum” variance.
Staff’s proposed dimensions for the setback variance creates a building footprint that is
approximately 65 feet in width parallel to Gibson, about 15 feet at its narrowest point, and 30 feet
at its deepest point. This creates a building footprint of roughly 1,240 square feet. The setbacks
required for this footprint are 15 feet less than allowed for the front yard, 5 feet less for the rear
yard, and 5 feet less for each side yard. Staff finds that these dimensions would be a “minimum
variance to make possible the reasonable use of the parcel”.
3. Literal interpretation and enforcement of the terms and provisions of this Title would deprive the
applicant of rights commonly enjoyed by other parcels in the same zone district and would cause
the applicant unnecessary hardship, as distinguished from mere inconvenience. In determining 22
whether an applicant's rights would be deprived, the Board shall consider whether either of the
following conditions apply:
a) There are special conditions and circumstances which are unique to the parcel, building or
structure, which are not applicable to other parcels, structures or buildings in the same zone
district and which do not result from the actions of the applicant; or
Staff Findings: The shape of the lot, among other constraints, when combined with the setback
requirements of the R-30 zone district, does not allow for any developable area on the
property. The setbacks for the R-30 zone district do not contemplate a lot of this shape. –
particularly the intersection of the 25 feet front setback and the 15 feet rear setback. This lot
is different in this way than other lots that are subject to the required setbacks. Staff finds
this condition applies.
b) Granting the variance will not confer upon the applicant any special privilege denied by the
terms of this Title and the Municipal Code to other parcels, buildings or structures, in the same
zone district.
Staff Findings: The staff proposed variance dimensions will allow the construction of a single-
family residence – that will be likely smaller than the allowable floor area for the lot. If a
setback variance is granted, the development will need to comply with all other City of Aspen
requirements. Staff finds this condition applies.
23
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
February 21, 2019
Ms. Jennifer Phelan, AICP
Community Development Dept.
City of Aspen
130 So. Galena St.
Aspen, CO 81611
RE: 777 Gibson Avenue Setback Variance
Ms. Phelan:
Please accept this application for Setback
Variances to allow for the development of a single-
family home on the property referred to as 777
Gibson Avenue. The property is located at the
intersection of Gibson Avenue and Maple Street in
the Smuggler neighborhood. Required setbacks
of the R-15 and R-30 Zone Districts are prohibitive
to development on this property.
The parcel is owned by 777 Gibson LLC,
managed by Peter Fornell. All appropriate
authorization forms have been included as
exhibits to this application as required by the Land
Use Code.
The setbacks stipulated by City zoning preclude
any development on this unique lot. The setbacks
leave a very thin, 8-inch-wide swath of land to
locate a home. This dimension precludes any
reasonable development, significantly beyond a
practical difficulty or mere inconvenience. This
application seeks a Setback Variance to establish
new setbacks that will allow the owner to exercise
the development right associated with this parcel.
24
777 Gibson
Page 2
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Property
The property is described on the survey as consisting of two
parcels connected at a single point. “Parcel 1” is a 5,436
square foot area of land. “Parcel 2” is a 2,255 square foot area
of land. Together, these two parcels compose the subject
property with a total land area of 7,691 square feet.
The Property consists of remainder lands from the 1978
Creektree Subdivision. The subdivider (Grover) owned a large
area of land known as Track A. Grover applied for and gained
subdivision approval from the City of Aspen for the Creektree
Subdivision, which did not encompass this entire Track A.
Several remainder parcels were created, including the subject
Property. Later that same year, Grover conveyed these
remainder parcels to new ownership. The Property changed
hands a few times and is now owned by the applicant, 777
Gibson LLC. A thorough history of the property is attached to
this application.
“Parcel 1” can be accessed easily from Gibson Avenue. The
simple access from a public way and the physical width of the
property in this area will support development of a home.
Development of this area will not affect the Oklahoma Flats
Trail . This area of the property is the only practical area where
the owner can express the property’s development right.
Parcel 1 is undeveloped save for a bandit carport structure.
The sidewalk adjacent to Gibson Avenue runs along the front
yard.
The map to the right highlights “Parcel 1” and
the photo below shows Gibson Avenue to the
right and the “Parcel 1” portion of the property to
the left.
25
777 Gibson
Page 3
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
“Parcel 2” is smaller and less accessible than Parcel 1. This
parcel’s frontage along the Gibson Avenue right-of-way is
horizontally and vertically separated from the street’s driving
surface. The parcel is crossed by a paved bike trail although it
does not appear that an easement was ever granted. The
steep slopes on this portion of the property would be
challenging to develop.
The map to the right highlights “Parcel 2,” with the
dotted area being the Oklahoma Flats Trail. The
photo below is taken along the trail looking south
with the “Parcel 2” portion of the property to the
right.
26
777 Gibson
Page 4
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Zoning
According to the City of Aspen Zone District Map,
the property appears to lay within two zone
districts – the Moderate-Density Residential (R-
15) Zone District and Low-Density Residential (R-
30) Zone District.
The “flagpole” portion of Parcel 1 falls within the
R-15 Zone District and the remainder of the
property falls within the R-30 Zone District. The
graphic to the right shows the City’s zoning map
with the grey dashed line showing zone district
boundaries and the subject property highlighted in
green.
Both R-15 and R-30 Zone Districts allow for the
development of a single-family home, a height
limitation of 25 feet, and have the same Floor Area
allowance. Setbacks for each Zone District do
vary and are further described in the Setbacks
section of this application.
Net Lot Area
The property has 7,691 square feet of gross lot area. The property is located on a slope with
grades in excess of 20% resulting in a reduction in Net Lot Area as shown in the table below.
Also, see attached property survey with slope analysis. A sidewalk easement along the
Gibson Avenue right-of-way does not affect the Net Lot Area.
Slope Category Land Area % “counting” as
Net Lot Area
Net Lot
Area
Under 20% 3,356 sf 100% 3,356 sf
20-30% 516 sf 50% 258 sf
Over 30% 3,869 0% 0 sf
Total Net Lot Area = 3,614 sf
27
777 Gibson
Page 5
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Floor Area
Pursuant to Section 26.575.020.C, the maximum reduction of Floor Area due to slopes is
25%. With the extent of steep slopes on the property, the reduction in Floor Area based on
slopes is 30.7%, exceeding the 25% limit. This application assumes a maximum reduction
in Floor Area related to slopes, with a resulting Floor Area of 2,785 sf. The following chart
shows the Floor Area calculation.
R-15 / R-30 Zoning
Code Calculation
method
Floor Area
Calculation Floor Area Notes
7,691 sf
Gross Lot
Area
For a property size between
3,000 and 9,000 sf: 2,400
square feet of floor area, plus
28 square feet of floor area
for each additional 100
square feet in Net Lot Area,
up to a maximum of 4,080
square feet of floor area.
4,691/100
x
28
+
2,400
3,713.48 sf
This is the Floor
Area with no
reduction for steep
slopes
3,614 sf
Net Lot
Area
For a property size between
3,000 and 9,000 sf: 2,400
square feet of floor area, plus
28 square feet of floor area
for each additional 100
square feet in Net Lot Area,
up to a maximum of 4,080
square feet of floor area.
614/100
x
28
+
2,400
2,571.92 sf
This is the Floor
Area with slope
reduction factored in
Reduction in Floor Area based on
slopes
3,713.48
-
2,571.92
1,141.56 sf
or, 30.7%
The slopes account
for a 30.7%
reduction in Floor
Area
Maximum 25% reduction of Floor Area
3,713.48
x
25%
928.37 sf
The Code’s
maximum Floor Area
reduction
Allowable Floor Area
(assuming maximum 25% reduction)
3,713.48
-
928.37
2,785 sf
This is the allowable
Floor Area after
accounting for the
maximum slope
reduction
28
777 Gibson
Page 6
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Setbacks
The City’s required setbacks (R-15 and R-
30) effectively eliminate any and all
potential for a home to be located on the
property. A small sliver of land in the
center of the Parcel 1 portion of the
property is the only setback-compliant
portion of the property.
These 64sf to 127sf, 8”-wide slivers
represent 0.8 to 1.7% of the property. The
map to the right diagrams the developable
area of the Parcel 1 portion of the property.
Obviously, a home cannot be physically
located on this small sliver of land.
Restricting a home to this degree
represents a severe hardship on the land
owner and a complete revocation of the
property right.
Proposal
For the development right to be exercised on this
property, the applicant seeks Setback Variances
to allow for a modest home to be developed on
the property. The Parcel 1 portion of the property
has been selected as an appropriate development
site and the proposed setback dimensions pertain
only to this portion of the property.
The proposal includes ancillary structures, a lap
pool, on the narrowest portion of the property. The
proposed design and plan view are shown to the
right and below. Additional detail can be found in
the attached plan set. The applicant reserves the
right to make adjustments to the architecture that
comply with City standards.
R-30 = 64 sf
building area
R-15 = 127 sf
building area
29
777 Gibson
Page 7
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Requested Setbacks
The proposed setbacks allow for a 2,430 sf (Floor Area) home to be developed on the
Parcel 1 portion of the property. The chart below summarizes the proposed setbacks.
These setbacks enable an area of 4,092 sf in order to develop the home, or roughly 53%
of the property. Sheet A.1.001 of the proposed plans depicts the precise locations and
dimensions of the proposed setbacks.
Setback R15 R30 Proposed
Front 25 Feet 25 Feet 5 feet
Side Yards 10 feet 10 feet 3 feet
Rear Yard 10 Feet
(Principal)
15 Feet
(Principal)
3 feet
Although the proposal calls for a home of 2,430sf of Floor Area, the applicant is not waiving
any dimensional allowances prescribed by City zoning. No improvements are proposed on
Parcel 2 at this time and the application does not request setback adjustments for this
portion of the property.
Residential Design Standards
The new home is required to meet the City’s
Residential design Standards. All aspects of the
Standards are met with the proposed design. A
completed checklist of the RDS is attached as
Exhibit 2.
30
777 Gibson
Page 8
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Removal of Illegal Carport Structure
The southern panhandle of the property includes
an improvement, a carport structure,
presumably built by the neighbor to the east.
The property to the east is known as the River’s
Edge Condominium Association. Condo Unit A
of River’s Edge is owned by Antonio Marziale.
Unit B is owned by Frontier LLC.
Illegal carport viewed
from Gibson Avenue.
November, 2018
This structure was not built by the applicant, or
its predecessors. No authorization for this
construction is or was ever provided by 777
Gibson LLC, or its predecessors.
1997 aerial photo
showing no carport
No easement exists and no building permits
appear to have been issued by the City of Aspen
for this structure. Research of the City’s aerial
photography indicates that the structure just
“showed-up” one day. 1
2004 aerial photo
showing no carport
1 source of aerial photos – City of Aspen Geographic Information Systems:
https://cityofaspen.maps.arcgis.com/apps/webappviewer/index.html?id=b9f64a3b244f4cea995660860e0d43
66
31
777 Gibson
Page 9
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
2008 aerial photo
showing carport
2012 aerial photo
showing carport
Portion of 2018 property survey
highlighting illegal encroachment
The City of Aspen has issued a Notice of Violation and Correction Notice to the neighbor,
requiring demolition and removal of the illegal improvement.
32
777 Gibson
Page 10
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Stream Margin Review
Stream Margin Review, according to Section
26.435.040.A of the City of Aspen Land Use
Code, applies to properties either within 100 feet
of the high-water line of the Roaring Fork River,
or a tributary, or within the Flood Hazard Area.
City of Aspen GIS depicts the parcel beyond the
Stream Margin Review Area. The property is
more than 100 feet from the high-water mark of
the Roaring Fork River. A section of the City’s
Stream Margin Review map is shown to the
right.2 The area highlighted in blue represents
the 100-foot buffer area.
The Property is also not located within the Flood
Hazard Area, according to the Flood Insurance
Rate Map on file with the City of Aspen
Engineering Department. The grey shading
highlights the Flood Hazard Area.
Based on the Property being more than 100 feet
from the high-water mark and not within the
Flood Hazard Area, the proposed development
is not subject to the City’s Stream Margin
Review.
2 Source - https://mapaspen-cityofaspen.opendata.arcgis.com/datasets/stream-margin?geometry=-
106.831%2C39.189%2C-106.804%2C39.195
33
777 Gibson
Page 11
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Literal enforcement of the R-15/R-30 setbacks eliminates any potential for this property to
be developed. The proposed home is modest in size and responsive to the City’s design
standards. The setbacks proposed are the minimum necessary to make for reasonable
use of the property and to avoid a hardship on the owner.
We believe the Board of Adjustment’s approval of the setback variances is well within the
spirit and intent of the City’s Land Use Code as well as necessary to avoid an
unreasonable hardship upon the landowner. Approval would be defensible from a
standard-of-review standpoint and a responsible action of the Board.
We look forward to your review and commentary and an opportunity to discuss this request
with the Board of Adjustment. Please let us know if we can provide additional information,
if we can assist with a site visit, or if we can respond to your input in any way.
Kind Regards,
Chris Bendon, AICP
BendonAdams LLC
Attachments:
1. Response to Review Criteria
2. RDS Packet
3. Application Form
4. Authorization to Represent
5. Proof of Ownership
6. Agreement to Pay
7. HOA Form
8. Pre-Application Summary
9. Vicinity Map
10. Property History with Exhibits A-J
11. Site Improvement Survey
12. Proposed Plans
34
Exhibit 1
Review Criteria
page 1
Response to Review Standards:
Section 26.314.040.A –
In order to authorize a variance from the dimensional requirements of Title 26, the appropriate
decision-making body shall make a finding that the following three (3)
circumstances exist:
1. The grant of variance will be generally consistent with the
purposes, goals, objectives and policies of this Title and the
Municipal Code.
Response – Title 26 of the Municipal Code (known as the Land Use Code)
provides zoning limitations and development standards for properties in the
City of Aspen. The purpose of Title 26, stated in 26.104.020 includes the
analysis of various development factors “and the legitimate rights and
reasonable expectations of property owners.”
The Property consists of remainder lands from the 1978 Creektree Subdivision. The subdivider
(Grover) owned a large area of land know as Track A. Grover applied for and gained subdivision
approval from the City of Aspen for the Creektree Subdivision, which did not encompass this
entire Track A. Several remainder parcels were created, including the subject Property. Later
that same year, Grover conveyed these remainder parcels to new ownership. The Property
changed hands a few times and is now owned by the applicant, 777 Gibson LLC. A thorough
history of the property is attached to this application.
The “purpose” of both the R-15 and R-30 Zone Districts includes use for long-term residential
uses with customary accessory uses. Following are the purpose statements for the R-15 and
R-30 Zone Districts, as stated in the City of Aspen Land Use Code:
35
Exhibit 1
Review Criteria
page 2
The property is zoned for single-family and duplex development and the owner has a legitimate
and reasonable expectation to be able to develop a single-family home. A variance to required
setbacks to enable the development of a home on this property is consistent with the purpose of
the Zone District (both the R-15 and R-30 Zones)
2. The grant of variance is the minimum variance that will make possible the reasonable
use of the parcel, building or structure.
Response – The application proposes a home of roughly 2,430 square feet (Floor Area) with a
single-story building facing Gibson Avenue and a partial basement. The property has a Floor
Area allowance of 2,785 square feet and a height of 25 feet. The home’s size is very modest.
Provided the slope of the site and the limited basement proposed, the gross area of the home is
expected to be in the 2,700 to 3,000 square foot range. This represents approximately half the
gross area of homes developed on Aspen’s smallest lots in the R-6 Zone District and
approximately a third to a fourth of the gross area developed on typical lots in the R-15 and R-30
zone districts.
The “total heated area” of three homes surrounding this property, according to the Pitkin County
Assessor, are 6,064 square feet, 6,211 square feet, and 9,385 square feet. A fourth adjacent
property, a duplex home, is listed as having 9,505 square feet of heated area. These properties
are all within either the R-15 or R-30 Zone Districts. Other non-adjacent properties located in the
R-15 or R-30 Zone District show total heated area for numerous homes in the 6-8,000 square foot
range and an occasional home exceeding 11,000 square feet of heated area. In comparison to
the surrounding properties, the proposed home is very modest in its size.
36
Exhibit 1
Review Criteria
page 3
The proposed home, utilizing 2,430 square feet of Floor Area, accommodates a three-bedroom
home. The above-mentioned surrounding properties have 5 to 10 bedrooms each and typical
homes in the R-15 and R-30 Zone Districts appear to have 5-7 bedrooms, according to available
Pitkin County Assessor information. In comparison to the surrounding properties, the proposed
home is very modest in its size.
The applicant has taken special care to design the home and the requested setbacks to be that
which is necessary to make reasonable use of the property. The three-bedroom home will
accommodate the owner’s needs, and a typical small family’s needs, without excessive mass and
scale. Common areas of the home are efficient, providing for the needed function.
While the proposed home may use less that the allotted Floor Area and Height, the applicant is
not waiving his right to the dimensional allowances prescribed by zoning. The proposed setbacks
have been arranged to be the minimum necessary for the property to be developed. The
architectural renderings and internal layouts are provided as informational items and not as
limitation. The applicant may decide to change the architecture and interior layouts in ways that
do not conflict with city zoning or development standards.
3. Literal interpretation and enforcement of the terms and provisions of this Title would
deprive the applicant of rights commonly enjoyed by other parcels in the same zone
district and would cause the applicant unnecessary hardship, as distinguished from mere
inconvenience. In determining whether an applicant's rights would be deprived, the Board
shall consider whether either of the following conditions apply:
a) There are special conditions and circumstances which are unique to the parcel,
building or structure, which are not applicable to other parcels, structures or
buildings in the same zone district and which do not result from the actions of the
applicant.
b) Granting the variance will not confer upon the applicant any special privilege
denied by the terms of this Title and the Municipal Code to other parcels,
buildings or structures, in the same zone district.
Response – Residential use, and derivatives of residential uses such as a vacation home, are
the only uses allowed in the R-15 and R-30 Zone Districts. The property is not allowed to be used
for commercial purposes. The property’s slopes and its limited size eliminate any reasonable use
as an agricultural operation. Other uses such as a Group Home or a Child Care Center require
face the same challenges with the setback restrictions. Plus, these uses are listed as “conditional
uses” and may not be appropriate within the existing residential setting. Reasonable use of the
property is limited to its ability to be used for residential purposes.
The City’s required setbacks, for both R-15 and
R-30, eliminate any and all potential for a home
to be physically situated on the property. The
chart to the right shows the prescribed setbacks
according to the R-15 and R-30 Zone Districts.
Setback R15 R30
Front 25 Feet 25 Feet
Side Yards 10 feet 10 feet
Rear Yard 10 Feet
(Principal)
15 Feet
(Principal)
37
Exhibit 1
Review Criteria
page 4
The diagram to the right (and shown at a larger
scale in the drawing set) maps the effects of these
prescribed setbacks on the property. A small sliver
of land in the center of the Parcel 1 portion of the
property is the only setback-compliant portion of
the property.
The small sliver of land is 64 square feet if using
the R-30 setbacks and 127 square feet if using the
R-15 setbacks. The narrow section of each sliver
is approximately 8 inches wide. These slivers
represent 0.8 to 1.7% of the total property area.
Obviously, a home cannot be physically located on
an 8-inch-wide sliver of land. The extremely
limited area and the narrowness of the sliver of
land prohibits the development of a home and
depletes all reasonable use of the property.
Restricting a home to this degree represents a
severe hardship on the land owner and a complete
revocation of the property right.
A typical R-15 parcel (100ft wide x 150ft deep) provides a development area within the property
equal to approximately 61% of the total property area. A typical R-30 parcel (200ft wide x 150ft
deep) enables approximately 66% of the property to be used for development. The proposed
setbacks for this property result in approximately 53% of the property being used for development.
(Certain allowances for minimal development within setbacks are not counted in these figures.)
Typical lots in the R-15 and R-30 Zone District enjoy the ability to construct a home, or a duplex
home, with the full floor area allowance provided by the Zone District. Setbacks of the R-15 and
R-30 Zone Districts are proportionate to the sizes or a typical lot in these zones – 15,000 to 30,000
square feet. The small size and unique layout of this lot, with long strips of land and the limited
land area, creates a situation where the setbacks overlap each other (front setback occupies the
same area as the rear setback, sides, etc.) and eliminate any practical area to situate a home.
The small size and unique layout of this lot is unlike the layout of similarly situated lots in the R-
15 and R-30 Zone Districts. The special condition of this lot is very unique.
The applicant did not create this situation. The parcel has existed in this configuration for decades
and is not the result of the owner’s actions. A complete history of the property is attached to this
application.
The setback situation is far beyond an inconvenience. Complying with the setbacks, literal
interpretation, removes any ability to develop this property. The requested setbacks are the
minimum necessary for the property to be developed and to provide the property with the same
privilege allowed other properties in the same zone district, pursuant to the City’s Land Use Code.
R-30 = 64 sf
building area
R-15 = 127 sf
building area
38
Residential Design Standards
Administrative Compliance Review Applicant Checklist
Standard Complies Alternative
Compliance N/A Sheet #(s)/Notes
B.1.Articulation of Building Mass
(Non-flexible)
B.2.Building Orientation
(Flexible)
B.3.Build-to Requirement
(Flexible)
B.4.One Story Element
(Flexible)
C.1.Garage Access
(Non-flexible)
C.2.Garage Placement
(Non-flexible)
C.3.Garage Dimensions
(Flexible)
Instructions: Please fill out the checklist below, marking whether the proposed design complies with the applicable standard as written or is requesting Alternative Compliance (only
permitted for Flexible standards). Also include the sheet #(s) demonstrating the applicable standard. If a standard does not apply, please mark N/A and include in the Notes section why
it does not apply. If Alternative Compliance is requested for a Flexible standard, include in the Notes section how the proposed design meets the intent of the standard(s). Additional
sheets/graphics may be attached.
Disclaimer: This application is only valid for the attached design. If any element of the design subject to Residential Design Standards changes prior to or during building permit review, the
applicant shall be required to apply for a new Administrative Compliance Review.
Address:
Parcel ID:
Zone District/PD:
Representative:
Email:
Phone:
Page 1 of 2 Exhibit 239
Standard Complies Alternative
Compliance N/A Sheet #(s)/Notes
C.4.Garage Door Design
(Flexible)
D.1.Entry Connection
(Non-flexible)
D.2.Door Height
(Flexible)
D.3.Entry Porch
(Flexible)
E.1.Principle Window
(Flexible)
E.2.Window Placement
(Flexible)
E.3.Nonorthogonal Window Limit
(Flexible)
E.4.Lightwell/Stairwell Location
(Flexible)
E.5.Materials
(Flexible)
Residential Design Standards
Administrative Compliance Review Applicant Checklist
Disclaimer: This application is only valid for the attached design. If any element of the design subject to Residential Design Standards changes prior to or during building permit review, the
applicant shall be required to apply for a new Administrative Compliance Review.
Page 2 of 2
40
777 Gibson Avenue
2737.073.00.014
777 Gibson LLC; Peter Fornell, Manager
625 So. WestEnd Street #4; Aspen, CO 81611
970.379.3434 p.fornell@comcast.net
BendonAdams
300 So. Spring St. #202; Aspen, CO 81611
970.925.2855 chris@bendonadams.com
Development of a new home on a vacant lot
n/a n/a 1
0 n/a
Setback variance.
3,575
Exhibit 3
41
777 Gibson Avenue
777 Gibson LLC
R-15 & R-30 7,691sf 3,614sf
0 2,785 2,430
0 25' ~15'
- 25' 5'
- 10/15' 3'
- 10' 3'
- na na
- na na
- na na
- na nana
na
na na
na na
Non-conforming lot size, non-traditional property layout, bike path crossing property.
Setback variances to allow 5' front and 3' sides and rear.
42
December 26, 2018
Jessica Garrow, AICP
Community Development Director
City of Aspen
130 So. Galena St.
Aspen, Colorado 81611
® BendonAdams
RE: 777 Gibson Ave; Aspen, CO.
Ms. Garrow:
Please accept this letter authorizing and Bendon Adams, LLC, to represent our ownership
interests in 777 Gibson Avenue and act on our behalf on matters reasonably associated
in securing land use approvals for the property.
If there are any questions about the foregoing or if I can assist, please do not hesitate to
contact me.
Property -777 Gibson Avenue
Legal Description - A PARCEL OF LAND LOC AT ED IN THE SOUTHE AST ONE
QUARTER OF THE SOUTHWEST ONE-QU ARTER OF SECTION 7, OWNSHIP
10 SOUTH, RANGE 84 WEST OF THE 6TH P.M., AND BEING MORE
PARTICUL ARLY DESCRIBED IN EXHIBIT "A" OF QUIT CLAIM DEED
RECORDED OCTOBER 9, 1991 IN BOOK 658 AT PAGE 784.
Parcel ID No. -2737.073.00.014
Kind Regards,
Peter Fornell, Manager
777 Gibson LLC
62 5 South West End Street #4
Aspen, CO 81611
300 SO SPRING ST I 202 I ASPEN, CO 81611
970.925.2855 I BENDONADAMS.COM
Exhibit 4
43
Exhibit 5
44
45
46
47
48
49
50
51
777 Gibson LLC; Peter Fornell, Manager379.3434p.fornell@comcast.net777 Gibson AvenueAspen, CO 81611625 South West End Street #4Aspen, CO 81611Peter Fornell, Manager777 Gibson LLCExhibit 61,300Parks1,9506325152
777 Gibson LLC; Peter Fornell, Manager
p.fornell@comcast.net 970.379.3434
777 Gibson Avenue
Aspen, CO 81611
12.26.19
Exhibit 7
53
ASLU
Gibson Ave. lot
Stream Margin/RDS
Parcel ID No. 273707300014
1
CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER: Justin Barker, 970.429.2797 DATE: 3/13/18
PROJECT: Gibson Ave. lot (needs an address)
REPRESENTATIVE: Chris Bendon, Bendon Adams – chris@bendonadams.com
TYPE OF APPLICATION: Stream Margin Review/Residential Design Standards
DESCRIPTION:
The applicant owns a unique parcel of land that is adjacent to Gibson Avenue near the intersection with Maple
Lane. The property is currently vacant and has a public trail crossing it and a sidewalk easement.
Development on this site could be challenging due to the lot size, configuration and the presence of the trail
and sidewalk easements.
In reviewing the official zone district map it appears that the pro perty may be located with two different zone
districts (R-30 and R-15). The property contains a development right and is subject to Section 26.710.022,
Zoning of lands containing more than one underlying zone district. The applicant may request a formal
administrative determination as a separate application regarding the development right and zone district
requirements as they pertain to this property.
The property is located within the Stream Margin Review area. Any potential development on this site requ ires
heightened review pursuant to Section 26.435.040. Stream Margin Review is administrative unless the
applicant is requesting a variation from a standard or an appeal of the top of slope (P&Z review). Any
residential development on this property is also subject to Residential Design Standard review pursuant to
Chapter 26.410. Residential Design Standard review will be combined with Stream Margin Review, either
administratively or with P&Z. Alternative Compliance (administrative, flexible standards) or a variation (P&Z,
non-flexible standards) from any of the design standards may be requested as part of the application.
Given the challenging site configuration, the applicant may choose to request dimensional variances for the
setbacks. A request for dimensional variance requires Board of Adjustment (BOA) approval, or may be
combined with other applicable reviews at P&Z.
Com Dev. Staff will pull a representative from the engineering department and parks department to assist with
the review and have a consistent presence through the design and development of any project. New
development will also be subject to the parking requirements of Chapter 26.515.
Below is a link to the Land Use Application Form for your convenience:
https://www.cityofaspen.com/DocumentCenter/View/1835
Land Use Code Section(s)
26.304 Common Development Review Procedures
26.314 Variances
26.410 Residential Design Standards
26.435.040 Stream Margin Review
Exhibit 8
54
2
26.515 Transportation and Parking Management
26.575.020 Calculations and Measurements
26.710.022 Zoning of lands containing more than one underlying zone district
26.710.050 Moderate-Density Residential (R-15)
26.710.080 Low-Density Residential (R-30)
Below is a link to the Land Use Code for your convenience:
https://www.cityofaspen.com/276/Title-26-Land-Use-Code
Review by: Community Development Staff
BOA or P&Z if variance/variation requested
Public Hearing: None if administrative review only
BOA (variance only) or P&Z (stream margin/RDS variation)
Planning Fees: $1,300 deposit for 4 hours of staff time for administrative review only OR
$1,950 deposit for 6 hours of staff time for dimensional variance OR
$3,250 deposit for 10 hours of staff time for stream margin/RDS variation
$81 flat fee for administrative determination
Referral Fees: $325 deposit for 1 hour - Engineering
$1,300 flat fee - Parks
Total Deposit: $2,925 for administrative review only OR
$3,575 for dimensional variance OR
$4,875 for stream margin/RDS variation
(additional/less planning or engineering hours will be billed/refunded at
a rate of $325 per hour)
$81 for administrative determination
Please submit a paper copy of the completed application to the Community Development
Office on the Third Floor of City Hall:
Completed Land Use Application and signed fee agreement.
Pre-application Conference Summary (this document).
Street address and legal description of the parcel on which development is proposed to occur,
consisting of a current (no older than 6 months) certificate from a title insurance company, an
ownership and encumbrance report, or attorney licensed to practice in the State of Colorado, listing
the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts
and agreements affecting the parcel, and demonstrating the owner’s right to apply for the
Development Application.
Applicant’s name, address and telephone number in a letter signed by the applicant that states the
name, address and telephone number of the representative authorized to act on behalf of the
applicant.
55
3
HOA Compliance form (Attached)
A written description of the proposal and an explanation in written, graphic, or model form of how the
proposed development complies with the review standards relevant to the development application §
26.435.040.C, Stream Margin Review standards.
A site improvement survey (no older than a year from submittal) including topography and vegetation
showing the current status of the parcel certified by a registered land surveyor by licensed in the State
of Colorado. The survey shall also depict the 100-year floodplain, high water line and Top of Slope.
Any additional application materials as required by Subsection 26.435.080.C.2.
An 8 1/2” by 11” vicinity map locating the parcel within the City of Aspen.
Completed copy of the Residential Design Standard Checklist:
https://www.cityofaspen.com/280/Documents-and-Permits.
If the copy is deemed complete by staff, the following items will then need to be submitted:
Total deposit for review of the application.
a digital copy of all application materials provided in pdf file format.
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on
current zoning, which is subject to change in the future, and upon factual representations that may or may not
be accurate. The summary does not create a legal or vested right.
56
Exhibit 9
777 Gibson – Vicinity Map
57
49591282.1
730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611
Telephone: 970.925.6300 Fax: 970.925.1181 www.shermanhoward.com
B. Joseph Krabacher
Sherman & Howard L.L.C.
Direct Dial Number: 970.300.0123
E-mail: jkrabacher@shermanhoward.com
February 20, 2019
City of Aspen Board of Adjustment
130 South Galena Street
Aspen, Colorado
Re: 777 Gibson Avenue, Aspen, CO 81611
Ladies and Gentlemen:
Our firm represents 777 Gibson, LLC (“777 Gibson”), the owner of certain property in
Aspen commonly known as 777 Gibson Avenue (the “Property”), previously owned by Doug
Allen.1 Due to the complexity of the title history for this Property, in support of our client’s
Board of Adjustment application for setback variances, we are rendering the opinion that the
legal creation of the Property is consistent with and not in violation of the City of Aspen
Municipal Code requirements for subdivision. In rendering this opinion, we have relied upon the
Title Insurance Commitment of Land Title Guaranty Company dated December 19, 2018 Order
No. Q62009917-3. As I will outline further in this letter, the Property consists of two remainder
parcels (shown on the map below in orange cross-hatching) resulting from a fathering parcel
vested by a quiet title action in 1967, a subdivision of the property in 1978, a subsequent quiet
title action in 1991, and several previous and intervening conveyances. A summary of the title
background for the Property relevant to this determination is set forth below.
1. In 1967 in Civil Action 3483, the Pitkin County District Court issued a decree
quieting title to a large fathering parcel in favor of G. E. Buchanan and Jean Francis for Tract A,
which is depicted below and appears to match a large parcel identified on the historic Oklahoma
Flats Addition Plat.2
1 See Vicinity Map attached as Exhibit A and Improvement Survey attached as Exhibit B hereto.
2 See Quiet Title Decree C.A. 3483 attached as Exhibit C hereto and marked-up Improvement Survey
prepared by David McBride and revised April 4, 2018 depicting outline of property quieted pursuant
thereto and Map of Lux Placer Showing Oklahoma Flats Addition recorded at Reception No. 94466 of the
Records of the Pitkin County Clerk and Recorder (the “Records”), attached as Exhibit D.
Exhibit 10
58
2
Buchannan Tract A and Prior/Subsequent Divisions
Under Section 26.480.020(A)(1) of the City of Aspen Land Use Code, the subdivision
requirements do not apply to “[a] division of land created by judicial proceeding or order of a
court of competent jurisdiction in this State, or by operation of law, provided that the city is
given notice of and an opportunity to participate in the judicial proceeding prior to the entry of
any such court order.” The City of Aspen was a named defendant in Civil Action 3483.
Thus, pursuant to Section 26.480.020(A)(1), the decree (and the depiction of the
Buchannan Decree parcel as a lot on the historic Lux Placer Plat, as further discussed below) 59
3
created the northwestern boundary of the western parcel of the Property (shown on the map
above in cross-hatched orange and labeled as “Western Parcel.”)
2. In September, 1977, Buchanan and The Colorado National Bank of Denver
(apparently as Trustee for Jean Buchanan’s interest) conveyed Tract A to Guy F. Grover
(“Grover”)3, excepting from that conveyance a parcel in the Northern portion of Tract A created
by a 1952 deed from The Denver and Rio Grande Western Railroad Company to Robert L. Kopp
and conveyed in slightly modified format in 1962 by Kopp to Pitkin County, memorialized in a
recorded plat and depicted in green on the map above (the “Pitkin County Exception Parcel”).4
Pursuant to Section 26.104.100 of the City of Aspen Land Use Code (“Code”), a “Lot” is
defined as follows:
“A defined individual area or unit of land resulting from subdivision and reflected
on a recorded plat approved by the City; or if created and recorded prior to the
adoption by the City of subdivision regulations or prior to its annexation into the
City, a unit or area of land designated by a separate and distinct number or letter
which is illustrated on a plat recorded in the office of the Clerk and Recorder for
Pitkin County.” [Emphasis added]
The Pitkin County Exception Parcel was a duly platted and legally existing Lot created
before the implementation of the subdivision regulations in 1976. The Pitkin County Exception
Parcel Lot boundary establishes the eastern boundary of the Western Parcel, and the northern
boundary of the eastern parcel of the subject Property (shown on the map above in cross-hatched
orange and labelled as “Eastern Parcel”). Because the Pitkin County Exception Parcel was a
Lot created by the 1952 and 1962 conveyances and plat, its creation pre-dates the City of Aspen
subdivision requirements implemented in 1976 and establishes legally recognizable boundaries
for the aforementioned boundaries of the Eastern Parcel and the Western Parcel of the Property.
The recorded plat depicting the Pitkin County Exception Parcel also depicts the alignment of
Gibson Avenue, which establishes the northeastern boundary of the Eastern Parcel.
3. In February, 1978, Grover obtained approvals from the City of Aspen for and
recorded the Creektree Subdivision PUD Plat, carving the Creektree Subdivision out of the
balance of Tract A. This subdivision created several new, smaller parcels from the balance of
Tract A, which remained in Grover’s possession (the “Remainder Parcels”), and legally created
3 See Trustee’s Deed and Special Warranty Deed recorded in Book 335 Page 476 at page 477and
Quitclaim Deeds recorded at Book 335 Page 480 and Book 335 Page 482 of the Records, attached as
Exhibit E hereto.
4 See Quitclaim Deeds from The Denver and Rio Grande Western Railroad Company to Robert L. Kopp
and from Robert L. Kopp and Amelia Kopp to the Board of County Commissioners of Pitkin County
recorded at Book 175, Page 592 and 198 Page 457; Plat of Survey recorded in Plat Book 2A Page 281,
attached as Exhibit F hereto.
60
4
the southern, western, and southwestern boundaries of the Eastern Parcel and the southwestern
boundary of the Western Parcel.5
4. In December, 1978, Grover conveyed the Remainder Parcels (or some portion
thereof adjacent to the Creektree Subdivision) by Quitclaim Deed to Midwest Sailboats, Inc. In
1981, Midwest Sailboats, Inc. conveyed the Remainder Parcels to Neligh C. Coates, Jr.6
5. In April, 1991, a Decree Quieting Title to Michael J. Garrish in Case No. 89 CV
135 severed the southeastern portion of Tract A, depicted in blue on the diagram above as the
“Garrish Tract” (now the River’s Edge Condominium).7 The City of Aspen was a defendant in
that case. Thus, pursuant to Section 26.480.020(A)(1), the southeastern boundary of the Eastern
Parcel of the Property was legally created.
6. In 1991, Grover conveyed the Remainder Parcels after severance of the Garrish
Tract to Douglas P. Allen. Coates and Allen each conveyed their interests in the Property to our
client in December, 2018 in the current configuration.8
It is our opinion that the carving up of the Property by several pre-1976 conveyances,
along with the City’s approval of the 1978 Creektree Subdivision and the 1967 Buchannan quiet
title decree, Garrish Tract Quiet title decree in 1991 and several historic recorded plats, operated
to legally create the Property in a manner not inconsistent with the City of Aspen subdivision
requirements.
Sincerely,
B. Joseph Krabacher
5 See Creektree Subdivision PUD Plat and Second Amendment to Creektree Subdivision Plat attached as
Exhibit G hereto.
6 See Quitclaim Deeds recorded at Book 360, Page 514 and Book 404 Page 878 of the Records attached
as Exhibit H hereto.
7 See Decree Quieting Title, Case No. 89 CV 135 recorded at Book 645, Page 512 of the Records and
attached as Exhibit I hereto.
8 See Special Warranty Deeds recorded at Reception No. 652836 and 658217 in the Records attached as
Exhibit J hereto. 61
6
49489072.1
EXHIBIT A
(Vicinity Map)
62
7
49489072.1
EXHIBIT B
(777 Gibson Improvement Survey)
63
64
8
49489072.1
EXHIBIT C
(Judgment C.A. 3483)
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
9
49489072.1
EXHIBIT D
(Diagram Depicting Creation of Property)
80
81
82
10
49489072.1
EXHIBIT E
(Buchanan Conveyances to Grover)
83
84
85
86
87
88
89
90
91
11
49489072.1
EXHIBIT F
(Creation of Pitkin County Exception Parcel)
92
93
94
95
12
49489072.1
EXHIBIT G
(Creation of Creektree Subdivision Parcel – Plats)
96
97
98
99
100
13
49489072.1
EXHIBIT H
(Conveyances of Property to Coates and Allen)
101
102
103
104
105
106
107
108
14
49489072.1
EXHIBIT I
(Decree Quieting Title 89 CV 135 -- Garrish)
109
110
111
112
113
15
49489072.1
EXHIBIT J
(Conveyances from Coates and Allen to 777 Gibson, LLC)
114
115
116
117
118
119
120
121
122
Exhibit 11123
the PBRworkshop
301 W. HYMAN STE. #6
ASPEN CO 81611
970-274-0481 or
amos@pbrworkshop.com
Site Plan
DATE REVISION
TITLE
TITLE
Scale: 1/16" = 1'-0"
1.7.19 BOA DRAWINGS
unless noted
8'-6"22'-0"1
8'-6"22'-0"2
777 GIBSON
PARCEL ID 2737 - 073 - 00 - 014
SITUATED IN SE1/4 SW1/4 SECTION 7,
TOWNSHIP 10 SOUTH. RANGE 84 WEST 6TH P.M.
CITY OF ASPEN, PITKIN COUNTY COLORADO
VICINITY MAP - N.T.S. (PROPERTY IN GREEN)
A.1.001
N
VIEW FROM WALKING TRAIL
VIEW FROM GIBSON AVE. EAST
VIEW FROM GIBSON AVE. WEST
"PARCEL 2" = 2,255 SQ.FT.+/-
"PARCEL 1" = 5,436 SQ.FT.+/-
TOTAL PROPERTY = 7,691 SQ.FT.+/-
EXISTING
SIDEWALK
GIBSON
AVENUE
MAPLE
LANE
"PARCEL 2"
PROPERTY LINE
"PARCEL 2"
NEW
6' HIGH
PRIVACY
FENCE
EXIST.
RETAINING WALL
SITE PLAN
EXISTING
RETAINING
WALL
EXISTING
SIDEWALK
EXISTING
CURB
OKLAHOMA FLATS
WALKING PATH
100' = 7929'
5'-2"
5'-0"
4'-4"6'-6"
5"
7'-2"
3'-11"
3'-6"
3'-3"
4'-3"
3'-0"
PROPERTY LINE
PROPOSED
SETBACKS
AT GRADE
PATIO
LAP POOL
18'-0"
PROPOSED CURB CUT
2'-7"
Exhibit 12
124
the PBRworkshop
301 W. HYMAN STE. #6
ASPEN CO 81611
970-274-0481 or
amos@pbrworkshop.com
Setback Study
DATE REVISION
TITLE
TITLE
Scale: 1/16" = 1'-0"
1.7.19 BOA DRAWINGS
unless noted
777 GIBSON
PARCEL ID 2737 - 073 - 00 - 014
SITUATED IN SE1/4 SW1/4 SECTION 7,
TOWNSHIP 10 SOUTH. RANGE 84 WEST 6TH P.M.
CITY OF ASPEN, PITKIN COUNTY COLORADO A.1.002
VICINITY MAP - N.T.S. (PROPERTY IN GREEN)
ZONE DISTRICT R-15
SETBACKS:
FRONT YARD = 25'
REAR YARD = 10'
SIDE YARD = 10'
ZONE DISTRICT R-30
SETBACKS:
FRONT YARD = 25'
REAR YARD = 10'
SIDE YARD = 15'
SETBACK STUDY
N
PROPOSED SETBACKS
SETBACKS:
FRONT YARD = 5'
REAR YARD = 3'
SIDE YARD = 3'
CITY OF ASPEN ZONING MAP - N.T.S. (PROPERTY IN GREEN)
"PARCEL 1"
"PARCEL 2"
PROPERTY LINE
TOTAL AREA PROPSED TOTAL AREA R-15 TOTAL AREA R-303'-0"
5'-0"
25'-0"10'-0
"
15'-0
"
3'-0"
10'-0"
15'-0
"
10'-0
"
3'-0"
3'-0"
3'-0"
4,092 SQ.FT 127 SQ.FT 64 SQ.FT"PARCEL 2" = 2,255 SQ.FT.+/-
"PARCEL 1" = 5,436 SQ.FT.+/-
TOTAL PROPERTY = 7,691 SQ.FT.+/-
PROPERTY LINE
125
the PBRworkshop
301 W. HYMAN STE. #6
ASPEN CO 81611
970-274-0481 or
amos@pbrworkshop.com
Concept Drawings
DATE REVISION
TITLE
TITLE
Scale: 1/16" = 1'-0"
1.7.19 BOA DRAWINGS
unless noted
777 GIBSON
PARCEL ID 2737 - 073 - 00 - 014
SITUATED IN SE1/4 SW1/4 SECTION 7,
TOWNSHIP 10 SOUTH. RANGE 84 WEST 6TH P.M.
CITY OF ASPEN, PITKIN COUNTY COLORADO
N
1
UPPER FLOOR PLAN
Scale: 1/8" = 1'-0"
2
LOWER FLOOR PLAN
Scale: 1/8" = 1'-0"
3
EAST ELEVATION
Scale: 1/8" = 1'-0"
5
NORTH ELEVATION
Scale: 1/8" = 1'-0"
6
WEST ELEVATION
Scale: 1/8" = 1'-0"
4
SOUTH ELEVATION
Scale: 1/8" = 1'-0"
ENTRY
CL.
CL.CL.CL.
HALL
UP
DN.KITCHEN
DINING
POWDER
LIVING
BED 1
BATH 1
BATH 2
BED 2
FAR CALCULATIONS
TOTAL GROSS LOT AREA = 7,691 SF +/-
1. GENERAL FLOOR AREA UPPER = 1,950 SF
LOWER = 430 SF
2,430 SF
BED 3
BATH 3
MECHANICAL/
STORAGE
A.1.003
15'-4"11'-10"13'-3"15'-4"23'-4"13'-0"15'-4"TOTAL NET LOT AREA = 2,572 SF +/-(25% REDUCTION DUE TO SLOPES)
ALLOWABLE FAR: R-15 ZONE = 2,785 SF +/-
R-30 ZONE = 2,785 SF +/-
PROPOSED FAR = 2,430 SF +/-
2. VERTICAL CIRCULATION = 50 SF
3. ATTIC & CRAWL SPACE = 0 SF
4. DECKS, BALCONIES, TRELLIS = 0 SF (LESS THAN 15% OF ALLOWABLE FAR)
5. FRONT PORCH = 0 SF
6. PATIOS = 0 SF (ALL PATIO AREA LESS THAN 30" ABOVE/BELOW GRADE)
7-15. NOT APPLICALBE = 0 SF
(N/A)
(N/A)8'-0"8'-10"(25% REDUCTION DUE TO SLOPES)
(25% REDUCTION DUE TO SLOPES)
(Applicant not waiving rights to zoning allowances)
Floor Area, heights, architecture, and interior layout provided as information, not limitation.
Applicant may make adjustments to proposed architecture and interior layout that do not conflict with City standards. (Dimensions provided as information, not limitation)
126
127
128
129
130
131
132
133
134
135
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139
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140
Exhibit F
Extended Legal Description
A PARCEL OF LAND LOCATED IN THE SOUTHEAST ONE-
QUARTER OF THE SOUTHWEST ONE-QUARTER OF
SECTION 7, TOWNSHIP 10 SOUTH, RANGE 84 WEST OF
THE 6TH P.M. AND BEING MORE PARTICULARLY
DESCRIBED IN EXHIBIT “A” OF QUIT CLAIM DEED
RECORDED OCTOBER 9, 1991 IN BOOK 658 AT PAGE 784,
CITY OF ASPEN, COUNTY OF PITKIN, STATE OF
COLORADO.
Exhibit A of Quit Claim Deed (Book 658, Page 784)
PARCELS OF LAND LOCATED IN THE SOUTHEAST ONE-
QUARTER OF THE SOUTHWEST ONE QUARTER OF
SECTION 7, TOWNSHIP 10 SOUTH, RANGE 84 WEST OF
THE 6TH P.M., BEING THAT PORTION OF THE PROPERTY
DESCRIBED IN QUIET TITLE JUDGEMENT CIVIL ACTION
No. 3483 OF PITKIN COUNTY LYING NORTHERLY OF LOT
1 CREEKTREE SUBDIVSION AND THE GARRISH TRACT
AS DESCRIBED IN QUIET TITLE DECREE RECORDED IN
BOOK 645 AT PAGE 512 AND EXCEPTING ALL OF GIBSON
AVENUE AS SHOWN IN PALT BOOK 2A AT PAGE 281.
THE ABOVE DESCRIBED PARCELS BEING SHOWN AS
CROSS HATCHED AREAS ON THE ATTACHED EXHIBIT
“A” PROPERTY INVESTIGATION BUCHANAN PARCEL
DATED MAY 21, 1991 PREPARED BY ASPEN SURVEY
ENGINEERS, INC., PITKIN COUNTY, STATE OF
COLORADO.
141
From:Stirling, Bill
To:Ben Anderson
Subject:777 Gibson Ave.
Date:Thursday, May 30, 2019 3:01:23 PM
Dear Members of the Aspen City Board of Adjustment,
I admire the applicant, who brought the affordable housing certificates program to the City of
Aspen, an important and ingenious method of creating affordable housing in our town. The
applicant is a resourceful developer and has a string of successes in his wake. However, I cannot
understand how this steep piece of ground could ever have been approved for a building site. It
must be one of those that slipped through the cracks or was part of some trade off in the past. It
bridges two zone districts, and must have been some odd remainder parcel through the give and
take in approving other subdivisions in that immediate area.
For starters any construction on this steep site would compromise the Oklahoma Flats Trail in a
major way. This trail leading down the hillside, over the bridge and into town is an important
amenity for all the residents on the east side of Aspen. The City spent a lot of money recently taking
a bit of the pitch out of this bucolic trail, and also did some nice landscaping. All of that money and
effort would be for naught, if the feeling of this trail is changed.
Without the set backs requested, there is no way this lot should ever be developed. Even with the 4
foot set backs requested, it is not even a marginal building site. Is it possible with modern
construction techniques to build a residence on this very steep site? Possibly, but that does not
mean it should happen. I believe it would be a major mistake to consider this application as even
being serious. Because for various reasons the lot is platted, an applicant can ask for an approval to
build. Maybe it is a “legal lot,” but that does not mean it should ever be developed. Construction
access would be a nightmare. It will take many yards of concrete to shore up that hillside. What a
that would be. They would have to close off that section of Gibson for months to give construction
trucks access.
I understand the long time owners recently sold to the current owners. I would posit that the new
owners entered into a highly speculative deal to research, test and see if there is any way to get the
City to approve their application. The applicant was shrewd and am sure got a very good price.
I would suggest, even if it is a legal lot, that some creative way should be considered, short of
approving a building right, but which might be a combination of the City’s contributing some money
coupled with the applicant seeking a Federal tax right off, because the building opportunity would be
expunged by mutual agreement. It might not bring any significant profit to the applicant, but could
be in the long term best interest of the Town. Trying to get a building approval for a marginal, or
remainder lot, is a highly speculative action, and not a good thing for any of the neighbors in the
immediate area, and not something anyone driving by in the future would believe could have ever
happened.
A building approval may be good for the applicant, but it is not in my mind a good thing for our
community.142
I will be out of town for the B of A meeting next week. Please share my email with the B of A
members. There must be a creative alternative approach to solving this puzzle. The Applicant is a
wizard, and could apply his acumen, not for self- aggrandizement, but by coming up with a
compromise, short of building, which could be a benefit for the entire community.
Sincerely, Bill Stirling, 118 Maple Ln, Aspen.
BILL STIRLING
DOUGLAS ELLIMAN REAL ESTATE
DIRECT: 970.920.2300
OFFICE: 970.925.8810
MOBILE: 970.948.8287
FAX: 970.920.2131
Bill.Stirling@elliman.com
630 EAST HYMAN AVENUE, SUITE 101, ASPEN, CO 81611
MY LISTINGS
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143
From:Mario Strobl
To:Ben Anderson
Subject:777 Gibson Ave
Date:Wednesday, May 29, 2019 4:43:33 PM
Hi Ben, just wanted to voice my opinion on the proposed construction on Gibson. Hopefully the zero setbacks are
not granted. That is the only sidewalk on that section of street, not to mention that it will impact the trail down to the
river that was just finished at great cost. Where is all the construction equipment going to be stored as well as ports
potties? The only way I see a building, carport and swimming pool is cantilevered over the trail. Also lots of trees
will be cut down. I realize people have the right to build on their property but I can't think of a worse and most
difficult location to build. Thx, mario strobl
Sent from my iPhone
144
From:Alex de L" Arbre
To:Ben Anderson
Subject:Concerns re: 777 Gibson
Date:Thursday, May 30, 2019 9:11:53 AM
Hi Ben,
Thanks for your time on the phone yesterday. My name is Alexandra de L'Arbre, and I am the
owner of 200 Cottonwood Lane, located about a block from 777 Gibson. I'm writing to
express my concerns about any setback variances granted to a future structure proposed on this
property.
My family and I (including a dog and two small children) use both the sidewalk to the north of
the property and the Oklahoma Flats path below the property several times a day. This
corridor is already cramped with the Fox Crossing structures built to the sidewalk on the other
side of the street. I fear more structures that abut the sidewalks and pathways will deteriorate
the character of this area and cause safety issues with pinch points for pedestrians, bikers, and
cars.
Please let me know if I can provide any further detail. Thank you for sharing my input with
those involved in making this decision.
Best regards,
Alex de L'Arbre
200 Cottonwood Lane, Aspen CO 81611
(805) 403-1271
alex.delarbre@gmail.com
145
146
May 29, 2019
Mr. Ben Anderson
Aspen City Planning and Zoning
Aspen City Hall
Aspen Colorado 81611
Re: 777 Gibson Re-Zoning
LETTER OF PROTEST
Dear Mr. Anderson,
Thank You for meeting in person with me yesterday. Again, I am John
Carbona the owner, and manager of Ninfa International LLC, the owner of 855
Gibson Ave. and member of Rivers Edge Homeowners Association LTD. I am
new to the area only just recently acquiring my property, so I will apologize first,
for the strong tenor of this letter.
I am writing to oppose the granting of “ANY” set back variance requested for the
single-family home and swimming pool being proposed on 777 Gibson Ave.,
which is scheduled to go before your board on June 6th 2019. Unfortunately, as I
told you in person, I have to be in Florida on this day, but, Mr. Chris LaCroix of
Garfield and Hecht P.C., is representing me in this matter, and will be present
at the meeting.
I firmly believe that everyone should follow the City of Aspen Building codes for
all building projects. I also maintain under special circumstances variances or
exceptions to those rules should be considered, but only in times of hardship. I do
not agree that a variance asked for by a local developer who knowingly
purchased 777 Gibson Ave. with this “existing blemish”, and who has far more
than a general knowledge of restrictive setbacks would be considered that type of
a hardship.
Actually, by granting “any” variance to the developer, you create other and more
real hardships. Examples would be, one to the local neighbors, one to the
indigenous animals and birds who use the shrubs and mature trees for life and
food, and to visitors and users of the Trail who walk it every day.
147
I ask where is the fairness and equitable rights to the nature and towns people
in the area if you put the developers rights any higher than all of our collective
rights?
I understand the City is in a tight squeeze over the situation, and clearly wants
and should be equitable to all parties. I understand there are development rights
to the property, I understand that the developer is a good man who builds
affordable housing in the area, I also understand he has home field advantage in
this matter, BUT granting rights to build a home and pool or anything on this
piece of property is not the answer and not equitable to me or the others
protesting. I suggest other alternatives. Use some of the enormous amounts of
money you have and protect this piece of land by buying it. Trade it with some
other parcel you may have, do anything but please DO NOT GRANT this project
permission to move forward. This would be a costly decision, as we as a group
fully intend to exercise every resource we have to stop this project.
• l believes the construction project itself will cause substantial detriment to
the public good and to the neighboring residential community. A house
sitting on the sidewalk of Gibson Ave. is not in keeping with our
neighborhood. This is not New York City. I bought here in the City of
Aspen because of the healthy setbacks and privacy afforded through the
Zoning rules.
• I believed it would be impossible to start a construction job at this site, as
there are no parking or staging areas for construction crews, trucks,
garbage haul services and the like.
• A two-car garage right on Gibson Ave., five feet from the curb, is
DANGEROUS and will not allow a driver to back out of his/her garage
and see the street, he/she is blocked by the garage walls, that is, until the
car is already on the street, and has run someone over or caused an
automobile accident.
• I suspect the project would require closing Oklahoma Flats Trail during
construction, and this is a well trafficked path for employees living in the
area.
• Gibson Ave. and surrounding streets are not able to handle the type or
amount of traffic generated by this development in the short term. That
intersection (Gibson/Maple) is crucial to the folks living in Smuggler.
Consider entry and egress, if a fire broke out in Smuggler, it would be a
DISASTER as streets would be obstructed to emergency vehicles.
• The neighboring community that I have personally communicated with,
feel it will negatively, effect the community and create a multiyear
hardship on some of our current homeowners, by loss of rental income and
property value depression.
• The development will forever change the Oklahoma Flats Trail, that was a
joint effort of private and public money to have a natural space for the
folks to commute by foot into town who live up here. A construction project
would negatively impact those walkers and people who enjoy a quiet stroll.
148
Can you imagine a loud pool party over the trail, with party throwers
looking down on the people below?
• The project will remove vegetation and trees that are crucial to the habitat
we protect dearly. I recently asked our City for permission to clean some
dead underbrush on a property line I share with them along the river. My
argument is that, some of this dead matter, was a hazard and potential
fuel for a fire. Only one has to be reminded of the Malibu and Basalt fires
to understand the potential hazard. Our City responded and said, I could
not clean up the dead shrubs, because, “We need to maintain understory
vegetation along the riverfront, it provides critical habitat protection for
the riparian area, Parks would not allow removal”, I think the variances
asked for would remove, understory vegetation and habitats the City
protects, again where is the equity and fairness to me and my neighbors?
• The developer must look for a more suitable property for his project, and
the City should spearhead this. This is the definition of “PUBLIC” in
Public Service.
• The present variance request must be denied, because this kind of gross
violation of Aspen’s standards puts developers’ profits above public’s
interest and sets a horrible precedent.
• To quote a friend neighbor and colleague Mr. Tim Hurd , do not kick the
can down the road, even if it strategically allows another City Agency to
take another swipe at the project, that is not fair to the developer, stop it
now and stop any false expectations or stress.
Respectfully,
John A. Carbona
Manager Ninfa International LLC
Owner: 855 Gibson Ave. Aspen Co.
149
From:Eric Carlson
To:Ben Anderson; Matt Kuhn; Jeff Woods; Austin Weiss; Jim True
Cc:lynne carlson; Tim@bluesprucelp.com; eugeneseymourmd@mac.com; TTodd@hollandhart.com;
rvolk64528@aol.com; john@carbonacapital.com; vinodgupta1946@gmail.com; wdb@rodel.com;
patti.clapper@pitkincounty.com; pauln@everestcpi.com; jennyhurd@gmail.com
Subject:Objection to Proposed Development 777 Gibson Avenue
Date:Thursday, May 30, 2019 11:22:57 AM
Attachments:image001.png
To all concerned:
My wife and I are the Owners/Managers of Aspen Joy LLC –the owner of 735 E. Francis Street in
Oklahoma Flats. The corner of our property line is approximately 10 feet from the lot line of this
proposed development. That said, while we are not officially adjacent to the development, we are
so close that we would like our concerns to be given the weight of an adjacent property owner. We
strongly object to the proposed development for the following reasons:
Subjective & Unfair Application of Established Building Codes: We applied for a building permit
approximately 2 ½ years ago for the purpose of adding two dormers to our existing roof line. These
proposed dormers did not impact anyone’s line of sight and were lower than the peak of our roof.
Not a single neighbor had an objection as it had literally no neighbor nor environmental impact.
Nonetheless, the city denied our proposed plan and said that no variance would be issued as our
proposed plan did not meet some esoteric code. As such, we were forced to modify our plan in
order to fully comply with the building codes. Our experience begs the question as to why no
variance was allowed for our non- impactful, unopposed proposal and yet a developer who is
apparently known to the city seems to be getting preferential treatment. Likewise, when we
recently wanted to remove a dead tree, we were required by the City of Aspen to solely remove ONE
limb as the hope was that the rest of the tree would survive. As this proposed development at 777
Gibson Avenue can only reasonably occur with significant variances to set-backs and would
necessitate the removal of many trees, again it appears that the established building codes are being
unfairly and subjectively applied.
Nuisance and Impact of Construction: We object to the Nuisance of construction activity in very
close proximity to our home. We will be adversely affected by the increase of construction traffic,
construction noise and general increased activity by the development of this site. The primary
benefits of The Oklahoma Flats neighborhood are the privacy and integration with nature—both of
which will be negatively impacted by developing the parcel at 777 Gibson Avenue. In just the past
several years we have had deer, wild turkeys, wild fox, and numerous bear on our property and we
hate to think of the impact this development will cause to their habitat. This proposed development
does not meet established City of Aspen Building Codes and will require drastic, unprecedented
variances that will have significant negative impacts on neighbors, citizens using the Oklahoma Flats
Trail, and wildlife in the area.
Storm Water Runoff: We have strong concerns regarding the control and environmental impact of
storm water runoff (especially during the construction process) should this site be developed. The
entire Oklahoma Flats neighborhood and the Roaring Fork River lie directly below via a steep incline
to the proposed site. What is the plan to control this runoff both during construction and 150
thereafter?
Ben- please confirm receipt of this e-mail and the inclusion of our concerns in the official review of
this proposed development.
Best Regards,
Eric Carlson | President | Chicago Nut & Bolt, Inc.
150 Covington Drive, Bloomingdale, IL 60108
Office: 630.529.8600 ext 405 | ecarlson@cnb-inc.com
151
152
153
154
From:Anne Byard
To:Ben Anderson
Subject:777 Gibson continuance.
Date:Thursday, June 13, 2019 4:59:05 PM
Attachments:Scannable Document on Jun 13, 2019 at 4_43_34 PM.pdf
From: Anne Byard <annebyard@comcast.net>
Subject: 777 Gibson continuance.
Date: June 13, 2019 at 4:11:51 PM MDT
To: ben.anderson@cityofaspen.com
Dear Ben:
I am sorry that you and staff are pressed due to the prompt continuation date of
the 777 Gibson Variance continuation. Will notification of the June 19th Meeting
be posted or those involved be notified or is it expected that this is a “known”?
I have concern about the presentation maps and overlays presented by Chris
Bendon and I hope that you might take a few moments to address them for me.
In the “packet” (Exhibit 10, Page 2) there is map overlayed with many colors
titled “Buchannan Tract A and Prior Subsequent Divisions". At the meeting
Chris Bendon presented on the screen a new addition to this map in medium
BLUE delineating a portion of Gibson Avenue labeled “County” located just at
the curve in the area under consideration. Perhaps you remember Chris Bendon
referring to it briefly though not in an explanatory way. It appears that this area
may have more to do with plans for the 777 property than have been been
included in the application and property maps.This may be meaningful to the
situation or not.
If you look at this map (see attachment),, you will see on the North side of Gibson
just before the curve a hatched piece of property which is 860 Gibson, my
property. If you look more carefully at the small print to the left border of this
hatched area (see expanded attachment) you will see: “Northern Parcel, gravel
parking area encroaches" at 27.9. On January 18,1993 Smuggler Mobile Home
Owner’s Association Quit Claimed me the parking area showing on the map out
side the “wooden fence” seen on this map. On January 2, 18 I had a survey done
of the area due to unpleasant interaction with Douglas Allen and confirmed the
boundaries as accurate. It was suggested by surveyors that the small triangle
portion between my parking and the large cottonwood and Maple Lane was “a
can of worms” to determine historically as to ownership.
Upon further research I submit attached a map of two additional “remainder
parcels” that have apparently been turned over by D. Allen to P. Fornel. I have
parked in Eastern remainder parcel in this area since the early 1970s and I
imagine there could be a case for “another adverse possession” against Fornel
should I choose to commit to such legal cost and action. I intend to ask legal 155
advice in this regard. Perhaps the owner of the property on the other side of Maple
may be in for a surprise due to the North Western “remainder parcel” claimed by
Fornel.
My concern here however is not my parking area, it is the fact that the two
remainder parcels on the map I unearthed (see attachment) ) may be used as some
kind of leverage should the 777 applicant:
1. Run into parking issues re the proposed 2 parking spaces at the Gibson curve
based on his submitted plans.
2. Should the BOA choose to limit his house size the applicant may seek parking
rights across the street as his current parking plan for 2 cars would further reduce
the possibility of living space.
3. Based on commentary overheard when I arose to speak at the last meeting
Chris leaned over to Peter and said audibly that’s the woman whose using “our
parking”.
In this unusual land purchase by a developer who claims extraordinary variance
contrary to Code, I am uneasy for our neighborhood and that the Variance
submission may not include unexpected proposal.
I suspect that there may be a few alternative surprises that may be sprung upon
neighbors, Community Development, Board of Adjustment, City Council and
County should Fornel not get succeed in obtaining proposed building variance. If
you are aware of details of the odd section of County owned Gibson or of the 2
remainder parcels potentially owned by Fornel, or other backdoor issues please
inform me. I would like to proceed based on further findings for unexpected
activity on the “north side” of Gibson that may become part and parcel of this
application or its future.
I would also like to hereby have it on record that it was shocking to hear the
moderater of BOA state that one should “face it” that this property “will be built
upon.” Last page of the BOA parcel delineates 2 ALTERNATIVE MOTIONS.
#1 Support the Applicant’s Request or #2 Denial of Variance. It would seem that
these two choices for the BOA do not imply in advance that 777 “will be built
upon.” It is unnerving to find that perhaps the board makes its decision before
public hearing and does not, perhaps, consider in detail their packet or a mindful
visit to the building site. Hopefully, the extension that was suddenly suggested at
the last minute is for the purpose of such.
Thank you for spending a moment to look at the attached maps that describe my
findings and letting me know how they may effect this application, if at all.
Graciously
Anne Byard/James Morris
860 Gibson
156
Northern Forty PDF below and other remainder parcel maps below PDF
157
From:SAMUEL BARNEY
To:Ben Anderson
Subject:777 Gibson
Date:Monday, June 3, 2019 7:02:32 PM
Hi Ben,
I'm not sure if I missed the opportunity to comment on this application, I'll continue as
if I have not missed the opportunity.
I'm writing in support of the application, as drawn, for the current applicant only. My
support is based on PBR Workshop as the designer/drafts person, Chris Bendon as
the planner, and Peter Fornell as the owner - if changes occur to the team structure,
my support is withdrawn. I believe this team will make every attempt to address the
issues as described in the comments and concerns and build a quality project with as
minimal of impact to the community as possible. I think this is a legal lot and the
applicant should be allowed to build a home there. I'm not necessarily in agreement
with the swimming pool but the applicant would be subject to REMP fees which
appear to be offsetting the energy use by a factor of 3x when utilized by CORE. It
would be great if the project used it's own renewable energy to power the pool
equipment. I would welcome Peter as a neighbor. I know Peter is building this as a
personal project, he is a full time year round resident who is a great citizen of Aspen.
1) Staff findings - certainly there are other locations within the City of Aspen where
building envelopes are established, as opposed to setbacks, this could be another
one. As the memo indicated, the residence is smaller than the allowable floor area
projection and I support that as well as the language regarding TDR receiving. Staff
recommended setbacks would result in an entirely different shaped project, one that
would be taller and I do not support that.
2) Engineering comments - In general, I agree, allow the applicant to address the
comments with their permit submission.
3) Parks comments - In general, I agree, allow the applicant to address the comments
with their permit submission.
158
I believe most of the citizen comments can be addressed through an adequate CMP
and adhering to the City's codes. Peter and his team certainly have challenges
ahead of them during construction if allowed to move forward, based on the steep
slope and general site constraints but nothing insurmountable in my opinion, other
than appeasing other citizens who wouldn't be happy with any development
whatsoever at this location.
Best regards,
Sam Barney
211 Cottonwood Lane
(970) 309-1836
159
From:Eddie Bradley
To:Ben Anderson
Cc:"Timothy Hurd"
Subject:Development of 777 Gibson Ave
Date:Monday, June 3, 2019 8:55:56 AM
Letter of Protest
As Trustee for the two trust owners (EQT Aspen 18 and JQT Aspen 18) of the property at 731
Bay Street I would like to protest the allowance of the variances requested by the developer
(Mr. Fornell) for construction of a residence at 777 Gibson Ave. I am aware of many letters
written enumerating the specific reasons for refusing the variances requested and I am
hopeful that the authorities will give weight to those arguments.
My observations are:
#1 Variance requirements are put in place by cities to control development and provide
reasonable rules for growth and property protection for exiting owners. Occasionally variances
from existing requirements make perfect sense because of the unique situations where
exceptions are warranted. From what I can see from the maps and drawings concerning this
proposal this project does not appear to warrwnrt exceptions. The elevations and shapes
required to fit on the property are extreme and unattractive.
#2 The trail heading up the hill to Gibson (just recently completed) by the city and our
generous neighbor Mr. Hurd to the Roaring Fork River foot bridge represents a significant
investment and provides a wonderful pathway for people living above Gibson to access town.
Any structure that would be allowed to hang over this path or interfere with the natural
environment created along the path would be a shame and a waste of the investment.
#3 Any structure built that would look down onto Oklahoma Flats and the homes below would
be restricting privacy and therefor the value of those homes.
I understand a developer wanting to build something that could be sold for a profit, however, I
would be amazed if the City of Aspen would approve the variances required to fit a structure
in such a strange place when it has so many negatives attached. Aspen has a reputation for
being strict and refusing requests for seemingly small common sense changes in structures
and vegetation and this construction proposal does not make any sense at all. I know the
adjacent property owners in the area affected are all opposed and want to vigorously protest
the granting of any building variances requested by Mr. Fornell
Thank you for your consideration.
Edward Bradley
Trustee for EQT Aspen 18 & JQT Aspen 18
AutoInc, LLLP
901 S Fillmore
Amarillo, Texas 79101 160
806-236-0853
806-372-9600
ewb@autoinc-usa.com
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161
From:EUGENE SEYMOUR
To:Ben Anderson
Subject:External development at 777 Gibson
Date:Monday, June 3, 2019 7:51:57 PM
Dear Ben,
I live at 717 E. Francis Street
Other have eloquently laid out the case against the 777 Gibson development
I won’t repeat their arguments since I want to focus on the fact that trees will have to be
removed in order for the proposed development to proceed
I don’t have to remind you about the strict regulations regarding tree removal.
Therefore, I object to the proposed development based on the removal of those existing trees
in addition to the arguments put forward by others.
Sincerely,
Eugene Seymour MD MPH
310-486-5677
162
163
Board of Adjustment:
I have several concerns over the proposed variances to accommodate a single-family
residence referred to as “777 Gibson Avenue”. Thank you for taking them into
consideration; I’ll address a few here.
CONSIDERING VARIANCES AND HARDSHIPS:
How could a setback variance even be considered for this property? Or a ‘hardship’ be
considered? Have you walked the proposed building site? It's a small triangle of land on
a precariously steep hill above a well-traveled multi-use path. The area has been wild
and wide-open for years...providing enjoyment for path users and neighbors alike. This
property should not have a home on it. In my opinion, it should be purchased by the
City of Aspen and protected from development. This area is open, wild and free and it
would benefit the entire neighborhood if it remained as is.
OKLAHOMA FLATS AND TAXPAYER MONIES:
In the past few years, the City of Aspen Parks Department did a major overhaul on the
Oklahoma flats trail which included changing the steepness of the grade (for safety),
adding retaining walls and landscaping. I don’t know what the exact dollar amount
was (trying to find this out) but I assume this was taxpayer money that funded these
improvements. This trail is one of Aspen’s busiest commuter paths and is a staple for
residents of Hunter Creek and Smuggler. By my research it was closed for construction
in May of 2016 and re-opened 8/31/16. See attached article from Aspen Public Radio
dated August 31, 2016.
This proposed property is directly adjacent to the Oklahoma Flats trail and all the work
that was recently completed. I foresee that this newly renovated area would be
deeply impacted if somehow/someway a home was allowed to be built just above this
area! How could you build here if there is no 'buffer zone' or proper setbacks to make
building actually possible? Will the construction equipment be placed on the trail as it is
hoisted up to the job site by a crane? Or lifted down by crane from Gibson Avenue (one
of the busier thoroughfares in the area).
CONSTRUCTION AGREEMENT:
I found a Construction Agreement online from April 2016 (see attachment) that is not
signed or dated. I am assuming this was the actual agreement entered into with the
previous owner of the property, Doug Allen. The section that concerns me is Section 8
under Trail Construction.
164
Section EIGHT states:
8. The City and Owner have discussed the possibility of a lot line adjustment and/or
exchange of property involving adjacent property currently owned by the County. The
City agrees to assist Owner in the pursuit of such lot line adjustment and/or exchange
with the County. The parties recognize, however, that such lot line adjustment and/or
exchange would require a land use approval by the City. Nothing herein shall be
deemed to be consent to the approval of the application for the lot line adjustment
and/or exchange. Such application shall be processed and approved as any other
request for a land use approval.
What 'lot line adjustment' are we talking about here... exactly what does this mean? By
Doug Allen allowing the City of Aspen to improve the trail is the city now somehow
indebted to the new owner to help him change lot lines around and potentially allow
various setbacks and modifications of the building code? I would certainly hope this is
not the case! In all my research this is the only thing I can find that potentially shows
why the City of Aspen would want to help the new property owner with any kind
of foreseen "hardship". This is concerning to me and I would like further clarification.
HAND RAIL:
Anyone using the new improved trail has noticed the temporary wooden handrail that
was installed. I have been wondering if that was the final rail as it has been there for
some time. I found in the Oct 2018 City of Aspen Capital Report that there is $55K
budgeted for a new metal handrail to be installed in 2019. I am unable to determine
how long this has been in the budget, but would assume it was part of the original
budget for the improvements. Has there been a delay in installing this final rail while
the City of Aspen waits to determine what is happening with the proposed building of a
home here? Is there a delay in installation because the City of Aspen is aware this new
rail (and all the recent improvements) could possibly be damaged if a home were to be
built here? I’m curious about this as well.
Thanks for including my concerns and comments,
Summer Richards
165
MEMORANDUM
TO: Board of Adjustment
FROM: Ben Anderson, Planner II
THRU: Jennifer Phelan, Deputy Planning Director
RE: A property referred to as 777 Gibson Ave; Setback Variances
MEETING DATE: June 6, 2019
Applicant
777 Gibson, LLC
Peter Fornell, Manager
Representative
Chris Bendon
BendonAdams, LLC
Address
Not yet formally addressed
Referred to as 777 Gibson Ave.
Legal Description
A PARCEL OF LAND LOCATED IN THE SOUTHEAST
ONE-QUARTER OF THE SOUTHWEST ONE-
QUARTER OF SECTION 7, TOWNSHIP 10 SOUTH,
RANGE 84 WEST OF THE 6TH P.M. AND BEING
MORE PARTICULARLY DESCRIBED IN EXHIBIT “A”
OF QUIT CLAIM DEED RECORDED OCTOBER 9, 1991
IN BOOK 658 AT PAGE 784, CITY OF ASPEN,
COUNTY OF PITKIN, STATE OF COLORADO. (See
Exhibit A for more information on legal
description)
Parcel ID #
2737-073-00-014
Zone District
Property is located in both R-30, Low Density
Residential and R-15, Moderate Density
Residential – dimensions for R-30 used for
analysis as required by code.
Land Use Request
Variances to front, side, and rear yard
minimum setback requirements.
Figure 1. Location of ”777 Gibson Ave.” Represented in blue, the lot
is adjacent to the intersection of Gibson and the Oklahoma Flats
trail.
Summary: The application proposes variances to front, rear and side
yard setbacks in the R-30 Zone District to accommodate a single-family
residence on an oddly shaped lot that contains steep slopes, a sidewalk
easement and a City of Aspen trail.
Staff Recommendation: Staff recommends approval of a 10 feet front
yard setback, a 10 feet rear yard setback, and 5 feet side yard setbacks.
These dimensions are different from those requested by the applicant. 166
Page 2 of 10
REQUEST OF THE BOARD OF ADJUSTMENT
The Applicant is requesting the following approval from the Board of Adjustment:
• Variance (Chapter 26.314) to grant dimensional variances from the minimum front, rear
and side yard setbacks required by the R-30 zone district. (The Board of Adjustment
is the final review authority.)
Figure 2 – Detail of property, including relationship to Gibson Ave, the sidewalk and the Oklahoma Flats
trail.
Actual lot configuration is shown in green. The sidewalk along Gibson is located on this property and
defined by an easement agreement
167
Page 3 of 10
E XISTING CONDITIONS
The lot referred to as 777 Gibson is a “remainder parcel” from
the adjacent Creektree Subdivision. When the lots that were
included in the subdivision were drawn from the fathering
parcel, this area of land was on the fringes and not ultimately
included in the subdivision. It is oddly shaped, is defined by steep
slopes, contains an easement for the sidewalk along Gibson
Avenue, and is crossed by a section of the Oklahoma Flats trail.
It remains undeveloped except for an encroaching carport built
by the neighboring property owner to the south (this situation is
in process to be resolved).
Important to the review for the variance request, this property
has portions that are located in two different zone districts; R-30
and R-15. In this situation, the Land Use Code requires the more
restrictive of the two zone districts to establish the dimensional
requirements for the lot. The R-30 zone district has the
following setback requirements:
Front yard: 25 feet
Side yard: 10 feet
Rear yard: 15 feet
The application of these required setbacks to this specific lot
precludes any developable area that would accommodate even
a minimum development right.
PROPOSAL
In response to the impact of the required setbacks, the Applicant
proposes a reduction to the R-30 setbacks. Specifically, the
following setbacks are proposed:
Front yard 5 feet
Side yard 3 feet
Rear yard 3 feet
These setbacks would be necessary to accommodate the specific design for a single family home and a
lap pool that is included in the Application. Please see Figure 3 and 4 below to see the proposed
setbacks and site plans for the Applicant’s design.
168
Page 4 of 10
Figure 4.
Proposed Site
Plan. The foot
print for the
proposed home is
shaded in grey.
Figure 3. Proposed setbacks – 5 feet front yard, 3 feet
side and rear yards (identified by the grey, dotted line.
There is no development proposed for the northern
portion of the property. The buildable area within these
proposed setbacks is identified in green.
169
Page 5 of 10
Figures 5 and 6 below depict the floor plans and elevations for the proposed home design.
Figure 5. Proposed floor plans.
The upper edge of the upper
image would face Gibson Ave.
The lower image is the lower
level.
Figure 6. Elevations.
The upper image
would face Gibson
Ave. The lower
image would face the
Oklahoma Flats trail
170
Page 6 of 10
Based on a net lot size calculation for the property (accounting for deduction for steep slopes), the
allowable Floor Area for the lot is approximately 2,785 square feet. The proposed home (as currently
designed by the Applicant) would be approximately 2,430 square feet.
Additionally, it is important to note that the easement agreement with the City of Aspen for the Gibson
Ave. sidewalk establishes that the front yard setback will be measured from the edge of the property
(edge of curb with Gibson), not from the sidewalk. The combination of the proposed five feet front-yard
setback and footprint of the Applicant’s design would in effect create a zero setback from the sidewalk.
REVIEW:
The criteria for receiving a variance are strict. A property owner must demonstrate that reasonable use
of the property has been withheld by the City, in relationship to specific site conditions, and can only be
achieved by the City providing a variance. In situations where all, or practically all, reasonable use of a
property is made impossible by development regulations, the City holds the ability to grant a variance to
avoid a “regulatory taking”.
The property owner must demonstrate that his rights, as compared with owners of similar properties,
have been deprived. In considering this criterion, the Board of Adjustment must consider unique
conditions inherent to the property, but which are not the result of the Applicant’s actions.
If a variance is granted, the land use code requires that a series of standards and circumstances be met.
Of particular importance to evaluating the request of this application, is the following:
“The grant of a variance is the minimum variance that will make possible the reasonable
use of the parcel, building or structure, and…” (26.314.040.A.2)
Please see Exhibit A - Variance Review Criteria and Standards, for a complete presentation of the
variance review criteria, standards, and required circumstances.
STAFF DISCUSSION
The combination of the shape of the lot and application of the required setbacks of the R-30 zone district
make development of this property impossible – literally preventing the placement of any size of a single-
family home. Factor in the steep slopes, the easement for the Gibson Ave. sidewalk, and the presence of
the Oklahoma Flats trail – and the difficulty of developing this property becomes evident. Staff’s
evaluation is that a hardship on the property is created if R-30 setbacks are strictly applied. As such,
staff supports a setback variance. The question then becomes, what is the “minimum variance that
will make possible reasonable use of the parcel…”?
Applicant’s Proposal
Staff cannot support, nor make findings within the Variance review criteria for the applicant’s proposed
setbacks. This position is based on the following issues:
1) Neighborhood context and character, and impact to neighboring properties – The City
of Aspen has been intentional over the years in establishing dimensional requirements that
differentiate the distinct residential zone districts. In this case, the lot in question is located in
both the R-15 and R-30 zone districts. On the topic of setbacks, both zone districts require 25 171
Page 7 of 10
feet front yard setbacks and 10 feet side yard setbacks. R-15 allows a slightly less restrictive ten
(10) feet rear yard setback (R-30 requires 15 feet). These setbacks create consistent urban forms
within neighborhoods and create expectations about the distances between neighbors and the
potential impact of one property on an adjacent property.
On the south side of Gibson Street, from the Old Powerhouse (to the west) to Matchless Dr. (to
the east), all property is zoned either R-15 or R-30 with the setbacks (particularly front yard)
required of these zone districts. The proposed setbacks would create a home that will relate
very differently to Gibson Ave. than any other home on this side of the street. Staff
acknowledges that there are properties on the other side (north side) of Gibson that have similar
front setbacks to what is being proposed. Importantly though, those conditions were created
due to improvements to Gibson Avenue that then impacted the street’s relationship to existing
homes.
On the rear and side yards, the proposed setback of three (3) feet is very different than the
required R-30 15 feet rear yard setback and ten (10) feet side yard setbacks. In the proposed
design, there is structure (the wall of the living room) that is three (3) feet from the property
line. Granting City approval for a new structure to be built closer to a property line than allowed
in any other residential zone district would not be appropriate, nor consistent with the outcomes
pursued by the Land Use Code in staff’s view.
Staff has similar concerns about the construction of a proposed lap pool that would be three (3)
feet from the property line (where a neighboring property owner would otherwise expect a ten
(10) feet setback. At the rear of the property, the two-story elevation of the proposed home
would be potentially located three (3) feet from the property line. The neighbors and users of
the Oklahoma Flats trail would otherwise expect a 15 feet setback in this area.
2) Impact to Gibson Avenue and sidewalk during and post construction – The City
Engineering Department is concerned about the feasibility of a construction management plan
that will not have significant impacts to Gibson Ave. and the sidewalk during construction due
to the proposed setbacks. Similarly, there are concerns about snow removal and snow storage
for both the sidewalk and street with little or no area between the street and the proposed
home. Again, a proposed five (5) feet front yard setback would create a condition where the
majority of the front façade of the home is immediately adjacent to the existing sidewalk.
Perhaps most importantly, the proposed project has designed two parking spaces, requiring a
new curb cut that would requiring exiting the parking spaces onto a curved section of Gibson.
3) Concerns about ability to meet other city code requirements – This lot, particularly due
to the steep slopes that define it, will present significant engineering and building challenges
including but not limited to soil stabilization, foundational structures, and stormwater
management. The City Engineering Department has raised a number of questions in this
regard. The minimal proposed setbacks potentially exacerbate these challenges in placing
foundations and above grade structures closer to property lines than the City allows in any other
residential zone district. Setbacks have a purpose, with definite land use outcomes in mind. The
proposed setbacks in the application undermine these outcomes and further complicate the site
conditions that define the lot. 172
Page 8 of 10
If variances to setbacks are granted, the approval will emphasize that the variance does not
exempt the property from compliance with all other sections of the Aspen Municipal Code –
including compliance with Building, Engineering, and Parks Department requirements and the
standards of the Land Use Code.
4) Potential impacts to Oklahoma Flat Trail – This trail is extensively used and has recently
received improvements including retaining walls and a new surface. These improvements have
been implemented adjacent to and across this property. Three (3) feet rear yard setbacks would
place the completed home in very close proximity to the trail. City Parks staff has raised
concerns about impacts to the trail during and after construction. A three (3) feet setback from
the trail would create both visual and potentially physical impacts to the trail both during and
after construction.
5) Dimensions required by building code – The IBC establishes a preferred 5 feet minimum
setback for residential structures from property lines. Structures can be built closer to the
property line than this minimum but are then potentially required to provide additional fire
protection in the structure’s design.
Staff’s Proposal
To state again, staff agrees that the application of the required R-30 setbacks does not allow reasonable
use of the property. While staff cannot support the Applicant’s proposed variance, staff does support
reduced setbacks and proposes the following:
Front yard: 10 feet
Rear yard: 10 feet
Side yard: 5 feet
These proposed setbacks would not eliminate, but would reduce some of the concerns stated above,
while providing what in staff’s view is a “reasonable use” of the property. Figure 7 (on the next page)
shows the impact of staff’s proposal in establishing a buildable area. The available “footprint” established
by these reduced setbacks is approximately 1,240 square feet in area, 65 feet in length along Gibson Ave.,
15 feet deep at its narrowest point, and just more than 30 feet deep at its widest point.
Staff acknowledges that these setbacks would not allow the specific home or the lap pool that has been
proposed by the applicant. However, staff does find that the footprint established by these setbacks
creates potential for building a single-family home on an otherwise challenging site. Ultimately, this is
what the Variance chapter of the Land Use Code Requires; that if a hardship is present, a variance will
be the minimum necessary to allow “reasonable use.”
More importantly, these setbacks create conditions that would reduce the previously stated concerns of
Community Development, Engineering, and Parks Department staff. Specifically:
1) A ten (10) feet front yard setback provides at least a five (5) feet buffer from the sidewalk along
Gibson Avenue. This additional five (5) feet (from the applicant’s proposal) reduces impacts to
the sidewalk and street during construction, creates more room for snow removal/storage, and
provides opportunity for some buffer between the sidewalk/street and the front façade of a
home.
173
Page 9 of 10
2) A ten (10) feet rear yard setback provides an experience for neighbors
and users of the trail that is more consistent with conditions in the
neighborhood. This additional seven (7) feet (from the applicant’s
proposal) reduces visual impact for neighbors and trail users, and
provides more area during and after construction to accommodate
foundations and storm water mitigation requirements.
3) Five (5) feet side yard setbacks reflect the minimum dimensions in any
of Aspen’s residential zone districts. This dimension allows for standard
residential construction designs and would reduce impacts to neighbors
both during and after construction.
While these setbacks do not eliminate the concerns associated with
developing this lot, staff proposes these setbacks as a compromise that
would allow reasonable development, while not allowing development
to completely undermine the importance of setback requirements and
make more difficult the compliance with other City standards
Staff is making one additional recommendation related to the variance.
This is a non-conforming lot in the R-15/R-30 zone districts due to its
small size of 7,691 square feet of gross lot area; where minimum lot sizes
are 15,000 square feet (R-15) and 30,000 square feet (R-30). This
quality of the site combined with other already described constraints
make it particularly important that development, if allowed by a
granting of variances, is as minimal as possible. Staff is therefore
recommending that if variances to setbacks are granted, that approval
be subject to a condition of approval that this lot could not be a
receiving site for a Transferable Development Rights (TDR). In other
words, this lot could not extinguish a TDR to add additional floor area.
RECOMMENDATION
Staff recommends that the Board of Adjustment approve variances for a front yard setback of ten (10)
feet, rear yard setback of ten (10) feet, and side yard setbacks of five (5) feet for the property referred
to as 777 Gibson. These are reductions from the required setbacks of the R-30 zone district.
Additionally, staff recommends that this site, if variances are approved, could not be a receiving site for
a TDR.
Figure 7. Approximate buildable area resulting from
staff’s proposed minimum setbacks – shown in blue.
10 feet,
rear yard
setback
10 feet,
front
yard
setback
5 feet,
side yard
setbacks
5 feet,
side yard
setbacks
174
Page 10 of 10
RECOMMENDED MOTION
The draft resolution is written in support of staff’s proposal of a reduced, 10 feet front yard setback, a
10 feet rear yard setback, and 5 feet side yard setbacks. The following motion can be used to approve
the resolution as written:
“I move to approve Resolution No. XX, Series 2019, granting approval for a variance to a front yard
setback at the property referred to as 777 Gibson Avenue, reducing the required front yard setback to
10 feet, the rear yard setback to 10 feet and the side yard setbacks to 5 feet, subject to conditions as
stated in the resolution.”
ALTERNATIVE MOTIONS
Alternative 1 – Support of the Applicant’s Request
“I move to approve Resolution No. XX, Series 2019, granting approval for variances to front, rear and
side yard setbacks at the property referred to as 777 Gibson Avenue, but amending the Draft Resolution
to establish the required front yard setback at 5 feet, the rear set back at 3 feet and the side yard
setbacks at 3 feet, and subject to conditions as stated in the resolution.”
Alternative 2 – Denial of the Variance.
“I move to deny Resolution No. XX, Series 2019, denying approval for a setback variance at the property
referred to as 777 Gibson Avenue.”
Attachments:
Exhibit A – Variance Review Criteria, Staff Findings
Exhibit B – Application
Exhibit C – Public Notice Affidavits
Exhibit D – Comments from the City of Aspen’s Engineering Department
Exhibit E – Comments from City of Aspen’s Parks Department
Exhibit F – Extended Legal Description
Exhibit G – Public Comments received as of 12:00 pm on 5/30/19
175
June 14, 2019
Protest 777 Gibson Ave.
Board of Adjustment Follow Up
Ashley Feddersen,vice chair
Mike Hopson
Jim Farrey
Andrew Sandler,Chairman
Collin Frank
Megan Bentzin -Alternate
RE: Lucky 777 Gibson Ave./Pontio Park
Good Day Board Members,
I am John Carbona the manager of Ninfa LLC.Which is the owner of 855 Gibson Ave. I share a property
line with the development at 777 Gibson Ave.
Today once again I speak of 777 Gibson Ave.Oddly 777 was chosen as the street address for this property
by the developer,because 777 is used on most slot machines to identify a JACKPOT,and you issuing a set
back variance will provide that Jackpot to the developer.
Nevertheless,you as a board of volunteers are faced with a task to vote for or against the building
project.
I suspect from listening to the meeting online, it appears you members will take the easy road and side
with the staff's recommendation. I pray hard,this is not your decision, but it appears you are in a tight
spot,and been given an easy way out to kick the can down the road.Just remember:
• By doing so,you'll have ignored the communities voice,over the developers voice, because ALL
but one public comment related to this project was"strongly"against this development.
• By doing so,you will have ignored the Aspen Area Community Plan objectives, long established
over 60 years ago,that speaks to exactly why this plan should be denied by you.
• By doing so,you will be sending a strong message to the community that the terms of all
philanthropic donations to the City for any project could be changed. Mr. Hurds easement and
cash contribution to the City and the Trail, 2 years ago are being ignored.You are slapping this
good-hearted man in the face.
• By doing so you will be setting a dangerous precedent,whereby any properties with
development rights MUST be given variances to build, regardless of extenuating circumstances.
• By doing so you will have lessened the public's confidence of the BOA and its role in the
community to do what is logical.
But all that said that does not solve any problems, because on June 19,someone will be disappointed,
and regardless of how you vote,this decision will be contested and suits will be filed.
I suggest that there is an alternative to all this.
Pontio Park.(Pontio which is the Welch word"to bridge")
• The plan will require,all effected parties, neighbors, City of Aspen,and Developer to work
together for a common goal which is to NOT BUILD ANYTHING ON THIS LEDGE.
• 777 Gibson Ave.would be purchased in collective, by neighbors,friends of the area and the City
of Aspen,along with the developer contributing.This would provide Mr. Fornell his purchase
price back, it would quiet the angry neighbors and keep the area as originally intended.
• The property would be deeded to remain untouched,forever as a Park with signage
acknowledging the unique partnership agreement of our group. To be used as a template in the
future to resolve disputes like this.
• And the plan would even provide a tax incentive for the contributors.
Please do not ignore the voice of the community. It would be a horrible precedent.
Fondly,
John A.Carbona
Owner Ninfa Co
Owner of 8SS Gibson Ave
M E M O R A N D U M
TO: Aspen City Council
FROM: Planning Office, Bill Kane
RE: Creektree Subdivision - Final Plat
DATE: November 23, 1977
On Monday, you will be presented with the request for approval of the final
plat of the Creektree Subdivision. As you will recall, the final plat
procedure is really intended to formalize in detailed legal and engineering
arrangements - those agreements that were consolidated at the preliminary
plat review. The Creektree Subdivision consists of approximately 6 acres
of land and calls for the separate development of two duplex units on the
south side of the Roaring Fork River and one existing unit on the north
side. As of this writing, numerous detailed, engineering and legal comments
on the subdivision agreement and final plat remain unresolved and we are
assuming that these will be cleared up to everyones satisfaction by Monday's
meeting. At this time, from a planning point of view, only two major issues
remain unresolved. First is the trail and second is the actual planning and
location of the Eagles Building itself.
Trail
Under the City Ordinance, we are required to have dedications for any trails
shown on the adopted City of Aspen Trails Plan. The original plan for the
trail irr this area came from Gibson Avenue on the north side of the river
and then across Bay Street and through Oklahoma Flats. At the public hearing,
at preliminary plat before the Planning and Zoning Commission, this adopted
trails plan alignment wa-s opposed vociferously by residents of Oklahoma Flats
and the agreement for the P&Z Board was to find an alternative location to
the trail. A general alignment east of the existing unit on the other side
of the river was settled upon. But upon closer inspection, reveals substan-
tial number of problems from the standpoint of construction costs, engineering
suitability of the site and proximity to the existing residents. In discussing
the appropriate alignment for this trail with the developers, specifically
Bayard Hovedsen, it was agreed that a better alignment could be found on the
west side of the existing house, crossing the river ata low point where a-small
wooden bridge could be constructed. In discussing this alignment, Bayard
mentioned that he felt that he would need an additional dwelling on the
other side to provide the economic basis for renovating the existing unit
and completing any landscaping or berming or additional construction that
would be required to screen the residences on the north side of the building
from the trail. In Bayard's mind, the provision of an easement for the trail
should be equated to the approval of a second unit on the north side. Our
response to this is that the addition of the second unit on the north side
of the property constitutes a substantial amendment to the plan as was
presented at the preliminary-stage and, as such, would be required to go back
through process and require P&Z reapproval. Bayard argues that the same
thing is true for the trail in that the alignment that was settled upon by
the staff earlier this week was one that was never presented to the P&Z. I
feel that he is technically correct, and that both the trail alignment and
the consideration of a second unit on the north side should both be re-
reviwed. However, I feel that only the particular alignment of the trail
should be considered and not the bigger concept of whether we should have a
trail or no trail has been the City's position right from the beginning of
this subdivision that a trail should be provided on the north side of the
property and I agree with the applicant only to the extent that P&Z should
have a re-review of the location, but that a trail in one location or another
Aspen City Council
Page Two
November 23, 1977
should be granted to the City. To the contrary, the idea of the second unit
is something that is entirely new, has not been discussed before and should
be a matter for some discussion before the Planning and Zoning Commission.
In other words, we do not feel that the provision of an easement should
equate to a second unit; but that only the alignment of the trail should be
something that should be eligible for rediscussion at this time. With
respect to this subject, we recommend that the Council condition any approval
on the provision of general language on the plat to say that a trail easement
shall be given on the location to be determined by P&Z.
Location of Eagles Building
As you will recall , the proposed site for the Eagles Building sits within,
at this point, City=owned SPA property at the end of Spring Street. During
the SPA approval process, we had specified that fraternal clubs would be
permitted as conditional uses within this SPA zone. Therefore, specific
construction drawings and site planning details will have to be presented by
the applicants to the P&Z in the framework of a conditional use hearing.
In addition, the SPA plan went on to say that all buildings and improvements
on this site should be set back 10 feet from the edge of the bank which drops
off into the Roaring Fork River. This requirement was specified to specifically
exclude the possibility of large and unattractive retaining walls being con-
structed on the bank which would create a ylear visual blight for the resi-
dents of Oklahoma Flats. The final plat and PUD plan that you are approving
Monday, shows the building location immediately adjacent to the edge of the
bank and parking that would overhang the bank and require the construction
of fill and retaining walls. There may be no other solution to this problem,
but it is something that is going to have to be considered in more detail via
the conditional use hearing process and should construction be required as
shown on the plan, then the SPA plan will have to be amended to allow that
to take place. At this point, we recommend the applesants carefully consider
the rearrangement of the parking and building so as to set all improvements
back from the edge of the bank.
In addition to these outstanding issues, there are some minor comments that
should be noted: 1) Council action should show that this is a subdivision
and PUD approval, that was not clearly noted at the time of conceptual sub—
division, this is a minor and technical point and the application has been
processed as a PUD through the entire process; 2) we should note.to you that
the land is zoned R-15 and R-30 PUD to correct an earlier statement at the
time of conceptual subdivision whereas zoning was shown at R-6 and R-30.
Most of the detailed comments in review of this subdivision will come from
the City Engineer and City Attorney. As of this writing, Dave Ellis has
indicated to me that he has not received a revised plat which indicates all
the changes that he has recommended since this should be made to comply with
the city subdivision regulations. It is our hope that this plat can be
submitted in a timely way so that Dave will have a chance to review it and
find everything to be correct by Monday. The"same is true with Dorothy's
detailed comments on the proposed subdivision agreement. Dorothy has re-
drafted the aqreement, resubmitted it to the applicants and we are awaiting
their response at this time. Again, we hope to have this tied up by Monday
so that you may take action.
lmk
Letter of protest 6-19-2019
Mr. Ben Anderson and Board of Adjustments
1. Oklahoma Flats is topographically a defined area.
2. In 1945 there were only 4 houses left from approximately 25 in the 1890'S
3. Since 1946, Oklahoma Flats has had a rural ambiance. To preserve this feel, the city of
Aspen zoned it R30 when they annexed Oklahoma Flats into the city in the 1960's.
4. The Oklahoma Flats Trail, which accommodates over 4000 users a week during peak
season, was recently upgraded and beautified with a generous $750,000 gift from Mr.
Tim Hurd to the city of Aspen. In addition, he voluntarily granted an enlargement of the
public easement on his property to benefit the general public which utilizes the trail.
5. In 1991, Doug Allen (a land developer), purchased the property at 777 Gibson along with
other property in the area. In approximately 1997 he initiated development of the
property at east Frances which was part of the purchase in 1991.
6. The city assessor has valued the rest of the property, including 777 Gibson for $20,000
for the last 10 years.
7. Doug Allen sold 777 Gibson along with the remaining properties in the immediate area
to the current owner on December 20th of 2018.
8. Within 6 months, a property that has been considered undevelopable by the city
assessor since 19991 (as evidenced by the $20,000 valuation for a lot in the middle of
Aspen), suddenly has been considered developable by the city.
9. If current zoning laws were applied to this proposal, the owner would be able to build a
structure that is approximately a 64 sq. ft. footprint, thus essentially undevelopable.
10. It is puzzling that the current owner is now requesting an extraordinary variance to the
current zoning laws (which have been in place over fifty years) which would allow him to
develop approximately 53% of his property. I urge caution as this may set a precarious
precedent for the entire city and make current zoning laws essentially a mere pretense.
11.Please include in the record my 11 slides shown.
n4lr- f� Ia --
Richard W. Volk
Linda Manning
From: Ben Anderson
Sent: Friday, June 14, 2019 4:30 PM
To: Linda Manning; Nicole Henning
Subject: FW: Continued BOA Hearing - 777 Gibson
Another message for BOA. Please forward. Ben
4k
:,sPt:t.
Ben Anderson, AICP
Planner II
Community Development Department
130 S. Galena St.
Aspen, CO 81611
970.429.2765
www.citvofaspen.com
www.aspencommunitvvoice.com
In D G
Notice and Disclaimer:
This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure
pursuant to applicable law. If you are not the intended recipient,please reply to the sender that you have received the message in error and then delete it. Further,
the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable,the information and opinions
contained in the email are based on current zoning,which is subject to change in the future,and upon factual representations that may or may not be accurate. The
opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance.
From:Tim Hurd <Tim@bluesprucelp.com>
Sent: Friday,June 14, 2019 3:10 PM
To: Ben Anderson <ben.anderson@cityofaspen.com>
Cc: Paul Nietzel <pauln@everestcpi.com>; Eric Carlson <ecarlson@cnb-inc.com>; eugeneseymourmd@mac.com;
wdb@rodel.com; Dick Volk<rvolk64528@aol.com>; Vin Gupta <vinodgupta1946@gmail.com>;John A. Carbona
<john@carbonacapital.com>; Thomas Todd <TTodd@hollandhart.com>;Jeff Woods<jeff.woods@cityofaspen.com>;
Chris LaCroix<clacroix@garfieldhecht.com>;Thomas Todd <TTodd@hollandhart.com>; Patti Clapper
<patti.clapper@pitkincounty.com>; Matt Kuhn <matt.kuhn@cityofaspen.com>;Austin Weiss
<austin.weiss@cityofaspen.com>;Jim True<jim.true@cityofaspen.com>; hsk@kceclaw.com; Eddie Bradley
<ewb@autoinc.com>;Jenny Hurd <jennyhurd@gmail.com>
Subject: RE: Continued BOA Hearing- 777 Gibson
Dear Ben-
Thank you for passing this along to me and giving me the opportunity to review it. I appreciate the clear way you and
your team have laid out the situation, building envelope, and interpretation of the Land Use Code. I know you guys
have worked hard on this and that the City of Aspen has been thrust into this unwanted situation by an enterprising
developer who bought this property on the cheap with hopes of winning the "variance lottery" (btw, as one of my
1
neighbors pointed out, the property was aptly given an out-of-sequence address of"777"...or jackpot on a slot
machine). As we can all agree, developable properties within walking distance to the core sell for millions of dollars, not
hundreds of thousands of dollars. The City's own appraiser has appraised it as worth tens of thousands of dollars. So,
clearly the "market" or community expectation was that this was an undevelopable property. Your issuance of
unprecedented and unexpected variances making it developable are handing a windfall to Mr. Fornell at the cost of the
City of Aspen taxpayer who built the trail (as well as me, personally who helped pay for it) and the neighbors whose
property values and experience will be harmed by this. But, this is not the point of this email.
I note that you are continuing to recommend 10 foot front and back setbacks as well as 5 foot side setbacks. Unless I am
mistaken, these are the very same setbacks that you recommended PRIOR to the June 6th hearing and PRIOR to hearing
from every single adjoining neighbor that they objected to the 777 Gibson development and your recommended
setbacks. And these are the same setbacks that you recommended PRIOR to several others in the community raising
legitimate and serious concerns about public safety (i.e. interaction with traffic on Gibson Ave, including notably from
Pitkin County Commissioner Patti Clapper), and PRIOR to community concerns being raised about impact on the trail
experience, environment, and inconsistency with prior treatment of adjoining property owner variance requests (and
denials). That your recommendation has not changed AT ALL after hearing from such a large and diverse constituency of
objectors can only be interpreted as either 1)you guys have not fulfilled your duty to take into account the impact on
ALL stakeholders, 2) you are favoring one party (Fornell) over several others perhaps due to some preexisting
relationship with this particular developer, or 3)you simply don't care. None are acceptable. Why did you bother to
have the hearing on June 6th, when you were presented with overwhelming objection to this development, if you
weren't open-minded to hearing community feedback? What was the purpose of the June 6th hearing at all? And what
is the purpose of the June 191h site visit and hearing if you've already made up your mind and chosen to ignore the
various, numerous, and legitimate concerns of the community about this development? I would like answers to these
questions.
Respectfully,
Tim Hurd (owner of adjoining property, 753 Bay St)
From: Ben Anderson [mailto:ben.anderson@cityofaspen.com]
Sent: Friday,June 14, 2019 3:11 PM
To:Tim Hurd <Tim@bluesprucelp.com>
Subject: [External] Continued BOA Hearing- 777 Gibson
Hi Tim—
Attached,you will find the updated staff memo and draft resolution. The site visit is scheduled for Wednesday, 6/19 at
12pm. The hearing will continue at 4:30pm in Council Chambers.
Let me know if you have questions ahead of the hearing. Sincerely, Ben
Ben Anderson, AICP
Planner II
Community Development Department
2
130 S.Galena St.
Aspen, CO 81611
970.429.2765
www.cityofaspen.com fna0l.safelinks.protection.outlook.coml
www.asspencommunityvoice.com [na0l.safelinks.protection.outlook.coml
V D G fna0l.safelinks.protection.outlook.coml
(na0l.safelinks.protection.outlook.coml
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pursuant to applicable law. If you are not the intended recipient,please reply to the sender that you have received the message in error and then delete it. Further,
the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable,the information and opinions
contained in the email are based on current zoning,which is subject to change in the future,and upon factual representations that may or may not be accurate. The
opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance.[na0l.safelinks.protection.outlook.coml
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