Loading...
HomeMy WebLinkAboutminutes.apz.19840403 RECORD OF PROCEEDINQS Regular Meeting Planning Ate Zoning Commission ­April 3. 1984 Chairman Perry Harvey called the meeting to order at 5:00 p.m. with commissioners Jasmine Tygre , Pat Fallin, Welton Anderson, Lee Pardee , Roger Hunt and David White present. MINUTES Roger Hunt moved to approve the minutes of March 20 , 1904; seconded by Jasmine Tygre. All in favor; motion carried. CONTINUED HEARING; _�ROWTH MANAGEMENT QUOTA SYSTEM CODE AMENDMENTS Alan Richman, planning office, continued to outline the revisions on the language in the code. (Tape damaged. ) Hunt questioned what "which" refers to on page seven, second to the last paragraph of the new version, "which standard may be employed. " Richman discussed the employee housing section. "A" indicates credit will only be given for housing which meets the housing authority ' s guidelines . The applicant is encouraged to engage in a pre-application conference with the housing authority for guidance. "B" and "C" remain the same. "D" addresses credit for housing provided in the metro area. Pardee suggested language that on-site housing receive bonus points . Richman noted "E" and "F" remain the same. Pardee suggested define "housing needs" with the words low, middle , or moderate; clarify housing needs with, for example, pricing categories. Harvey opened the public hearing. Richman continued. "G" addresses displacement of units which are currently deed restricted to employee housing guidelines. "H" deals with the amendment of deed restricted employee housing between the property owner and Council. "I" articulates methods applicants may use to obtain credits for housing : producing new units , converting existing units which are not restricted to Aspen's housing guidelines, paying an employee housing dedication fee, etc. Tail Dunaway , publisher of the Aspen Times , questioned if it is a wise idea to encourage removal of units from the employee housing pool ( referring to "H" ) . An owner has the right to transfer. fie recommended deleting the paragraph. Richman said the language 1 RECORD OF PROCEEDINGS Regular Meeting__Planning -and-Zoning CommissioD April 3,-1-984 was in the original language of the residential quota system. Harvey asked if a property owner has the right to replace his employee housing with something else. He asked what the legal implications are with the current language. Richman concluded replacing "removed" with "transferred. " The commission addresses dedication fees . Jim Curtis , housing authority , said the intent of the change in the language is to qive the GMP applicant and Council the opportunity to mutually agree on employee housing. Many applicants find a commitment in small increments difficult to fill . There is a need for flexibility. And there is a need to influence the form of employee housing, and in the case of the county, to also influence the location of employee housing. (There is discussion over the payment schedule for the employee housing dedication fee . ) The schedule is to be updated annually. Pardee questioned whether the dedication fee schedule discouraged support of employee housing over the free market sector . However , there is a need to encourage development of employee housing. There is a need also to encourage small diversified projects. David White arrives in the chambers. Dunaway asked why the fee decreased for low to moderate levels. Curtis explained in the employee price guidelines low income is restricted to 58 cents a square foot rent , moderate income is restricted to 65 cents a square foot. One can afford to pay more per the guidelines as the income level is increased. Therefore, the subsidies decrease, just like the GMP points decrease . Harvey said it may cost the same amount to build a studio for low, moderate or middle income, but if the unit is sold at low income, a larger subsidy is needed to cover the gap between construction costs and rental fees. The intent is to offset construction and rent. Harvey questioned the projections for the length of time to actually produce some housing. Jim Adamski , housing authority, said housing may take a year to produce . Harvey is concerned about the community impact of construction with no employee housing to offset that. Richman referred to the park dedication fee. Money is collected at the time of the issuance of the building permit, and yet the open space is not purchased until the purchase price is met. Harvey asked if the city now has land earmarked for potential employee housing. ( Someone said no. ) Is there any control on who gives and who builds. If someone has to house one or two employees the choice may be to donate. How 2 RECORD OF_ ROCEEDINC�S Regular Mee iD — P!anDina and Zoning Commission App �__ L_1984 about a large project where the impact is substantial ? Does that applicant have an option? (Tape is operational again. ) Richman replied the principal control is the housing guidelines which are adopted each year. In a particular year there might be a determination that because of the shortage of units cash in the bank will not be beneficial . Annually, the viability of tin options needs to be determined. Harvey said there is no language saying the housing authority has the right to dictate a method. He quoted: "applicants may obtain credit for providing employee housing by any one of the following methods or combination of said methods which is payment of employee housing dedication fee. " Should there be some review criteria? Should there be some ability for the housing authority to make determinations? Are alternatives selected at the time of application? Richman said yes. Harvey said it is not clear that the applicants must state what alternative they are selecting. Richman said he would make that clear in the application process. Tygre asked if there is a provision in the scoring which differen- tiates between payment of dedication fees and the production of units. Harvey said scoring is the same. Credits for housing can be obtained by any said methods or combinations of said methods. Richman explained if the applicant provides money for low income housing, it is scored as a low income representation. Harvey suggested if the housing authority trys to build a fund to build on some land, then the applicant may agree to contribute. Fallin expressed concern that the dedication fee system might meet the same fate as the parking fee. Hunt said the parking fee was eliminated because the city did not provide parking policy. Harvey said it is incumbent upon the housing authority to be prepared to act. There is no way to predict money supply . There are no projections for past productions. There are no pieces of property earmarked by the city. He quoted " funds are proposed for planning site development, construction financing of employee projects, and other uses approved by the Aspen City Council . " The language states the funds will not be comingled with general operating funds. There is no language specifying that the funds be earmarked for some specific future use. Fee payments can be invaluable if there is a piece of property . Applicants may not provide what is necessary. But without a 3 RECORD OF PROCEEDINGS Regular Meeting —Planning and Zoning Commission _April 3. 1984 piece of property, without the ability to buy in advance, without a set revenue source, there are problems. Curtis replied dedication fees provide the opportunity to generate a pool of funds and allow the _housing authority to purchase or lease a piece of property and build. The only reason the city would consider this is if the city wants the ability to influence the form of housing and to deal with smaller increments. If that is not the case, do not consider this. White did not like the lag time. Most applicants will probably choose the option of dedication fees rather than building units. There is more time granted for payment of dedication fees . The incentive is to give less. The language on page fourteen should be stronger to discourage someone from circumventing the commitment to the dedication fee like the parking fee . Paul Taddune , city attorney, said dedication fees are subjects of continual judicial review. Dedication fees in support of utilities, and general municipal services have generally been upheld. The two classic areas of dedication fees are parks and school properties. Richman noted roads are receiving judicial support and popularity. Taddune noted California courts upheld a condominium impact fee of $5,000 . He is bothered by the housing dedication fee. Harvey argued there is a need for housing authority guidelines on who gets to do what. A purpose for the money is to establish a mortgage fund for the repurchasing of existing housing. The growth management plan is dedicated to providing housing to keep pace with development. If the dollars go into a fund for mortgages to aide purchases of existing housing, nothing is gained. There is growth with no offset. The growth management plan is premised on growth paying its own way. This dedication fee system with no backing of property, or no control on who does what, is too nebulous. On the issue of land conveyance, the housing authority has the right to sell the land or build on it. If the given land is sold , it should be sold because there is another piece of property which is planned for construc- tion. It should not go into the mortgage fund. Pardee said this area is incomplete. It falls under the purview of the housing authority. The housing authority needs to evaluate the options . fie suggested postponing any further discussion on this issue. 4 RECORD OF_PROCEEDINGS Regular Meeting Planning and Zoning Commis5_i_Q___Apr.J__3, 1984 Richman said Council requested lot splits be processed through a public hearing. The commission disagreed , instead Council should preside over the public hearing. Page sixteen addresses that. "E" deals with the change from essential governmental project exemptions to governmental or community facilities. The basis is now whether the project, public or private, profit or nonprofit, is essential and merits some competitive advantage. There is a need for an initial finding from the commission on the essential nature of a project. Harvey quoted from the bottom of page sixteen and top of page seventeen : "the criteria includes that the project provides basic or fundamental public services upon which the remainder of the community is dependent for support, and is available to the general public and serves primarily the local community. " How does the Arts West proposal fall into that? Richman said it does not. Pardee said if a project contributes to the popularity of Aspen as a resort , the city needs to support that project. The language "basic and fundamental" eliminates cultural facilities. There is a need to support projects which demonstrate they are in the best interest of the community. Harvey asked if "essential" refers to governmental and community facilities. He suggested the language "provides basic or fundamental public services upon which the remainder of the community is dependent for support . " Pardee and Harvey encouraged broader language. Richman suggested "serves a public purpose. " Harvey suggested "should be available for use by the general public. . .serves the interest and needs of the local community. " Richman said Section 24-11 . 3 "J" is the inconsistent section of the employee housing section. Delete it. Richman tried to bring some order to Section 24-11 .7 (Rescinded and Expired) . It reads that people submit plans to the building department for issuance of a permit not within two years but within less than two years. Then if they cannot meet the deadline, a fair warning is issued that the allocation be returned back to the allocation pool for that year. Twenty-one months from the submission of a G14P application deadline is the suggested time framework. Harvey asked about lawsuits. Richman said in the case of a lawsuit, delay the time. Pardee replied that an extension can 5 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3. 1984 be granted . Twenty-one months, plus the 180 days to submit for a building permit, plus 20 months from the Uniform Building Code, totals 53 months. The building department at its discretion can give another six months for a plan check, another sip: months to begin construction. Council can award another 180 days and the Board of Appeals can award an unlimited number of days . Four _years is too long. The intent is to quickly return unused allocation back to the pool. There is a question whether the growth management allocation has to be tied to the UBC, it is a legal -question. Simple projects run on -a -tight time schedule ; complicated projects can demonstrate hardship and be awarded time extensions. He wants to discourage profit making in the process also. This section is unsatisfactory. Richman attempted to reduce the time to obtain a building permit and to eliminate the allotment if the building permit is not obtained within the reduced time. The old code did not tie the two together. Pardee requested a legal opinion on whether the commission can alter the UBC code and requested a study session for this section. David White moved to continue the public hearing to April 17 , 1984; seconded by Roger Hunt. All in favor; motion carried. CONTINUED HEARING] ARTS WEST BALLOT QUESTION RESOLUTION Richman indicated include in Section 2 of the resolution the finding that it is inappropriate to relocate Cap' s to the proposed site because it may preclude a railroad right of way to the Rio Grande property. Harvey agreed with the "whereas ' s. " Section 1 deals with the concern that the specific allocated parcel not preclude a parking garage , and that parking be considered in conjunction with the performing arts. Make the last sentence of Section 1 more specific by requesting funds for a parking study for an initial study of cost, land use, land required for "x" number of spaces , etc. Fallin leaves chambers. Andy Heck , representative for Arts West , noted that a studv should be a comprehensive review of traffic. The parking is not exclusively for the use by the performing arts center . Harvey said the study should consider the Jerome, the city ' s imuound lot needs , etc . The study should eXplore the option 6 RECORD OF PROCEEDINGS Regular Meeting _._ Planning a_nd Zoning Commission__ April 3. 1984 of locating Cap' s in the parking garage with an access off Spring Street. Cap' s needs bays and a shop area. Cap' s could charge clients for storing cars in the parking garage. It is ideal . Heck said Arts West needs to proceed with its plans which may or may not coincide with the master plan and the parking plan. Harvey replied that Arts West needs to dovetail its plans with Parking . Arts West has been naive about its parking needs . It should be pushing for the parking. Arts West will not receive approval of its plans from the commission without a parking solution. Heck asked if the parking issue can be addressed by Arts West . Harvey said Arts West ' s design team needs to work with the city on a parking solution. Arts West is not expected to fund the parking at this time. Hunt said that the performing arts center project could potentially preclude something in the parking garage area. Heck said he understands that the project not preclude the parking facility and that Arts West: cooperate with the solution. White suggested change "should" to "must" in the sentence : "Further- more, believes that the parking garage should be built in conjunction with the performing arts center to insure that adequate parking is available. . . " He encouraged pressuring Council to act. Heck said Arts West has not been asked to participate in that planning process . Harvey again recommended language in Section 1 that the commission encourages Council to allocate the necessary funds to complete a parking garage study (dealing with land needed and the number of spaces needed) within the next six weeks . The study needs to be completed before the election date. It is incumbent on the city to act on this now. He wants to be assured that Arts West ' s actions will not preclude land for parking or a transportation center. Harvey suggested :including in Section 2 language that the parking garage incorporates Cap' s Auto Supply. Richman read the change to the last sentence in Section 1: "Further- more, the commission recommends that the City of Aspen move forward immediately to develop plans for the parking garage to insure that it can be built at the same time as the performing arts center by allocating funds for a study of the parameters for its design and which study should be completed prior to the vote on the ballot question. " 7 RECORD OF PROCEEDINGS Regular Meeting Planning_ anI Zoning Commission April 3,,-1984 Hunt said he does not want to lose sight of the transit facility use of that area. Harvey suggested including transit facility into the last sentence also. Richman added to Section 2 : "including other sites on the Rio Grande property (including within the garage itself) . " Pardee suggested strengthening the first sentence of Section 3 . The commission does not want to subvert the intention of the code and use zoning to achieve other purposes. White agreed. Heck said the intent is not to subvert the existing zoning . The intent is to achieve a 1 : 1 FAR. Pardee said a 1 :1 FAR is not required under a SPA or PUD. The current zoning will accommodate whatever the applicant anticipates. Penne disagreed. She explained that the zone is "0" , office zone, which is . 75 : 1 . It will probably be rezoned public which allows the SPA to set the FAR. Harvey asked if there is an underlying FAR in a public zone. Penne answered no. The jail is .75: 1. Arts West is concerned Council will interpret the FAR as .75: 1 based on the surroundings . Arts West cannot live with that FAR ratio. Tygre said the language as written is fine. The language indicates that the commission is following the process. The process will handle this. Harvey agreed. It is not good planning for the commission to recommend a zoning change because Council seems to rigidly adhere to the FAR underlying the PUD. Heck suggested the entire Rio Grande for the FAR. Hunt suggested adding " . . . the zoning review process is contrary to good planning, and furthermore unnecessary, " Richman added "and furthermore unnecessary because the FAR is set by SPA. " Harvey said the FAR is not sacred. Heck agreed to this because it establishes that FAR can be varied as necessary to accomplish the purpose. Lee Pardee moved to approve Resolution 84-3 , "The Arts West Ballot Question, " as written in the planning and zoning memorandum of April 3 , 1984, and as amended in this meeting with an additional provision that the chairman be authorized to review the changes to assure compliance with this meeting ' s changes, to sign the resolution, and to pass it on to Council. Seconded by Jasmine Tygre. All in favor; motion carried. PUBLIC HEARING; THE ASPEN CLUB Harvey opened the public hearing. 8 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission�April 3. 1984 Anderson requested that the planning office review the original approval of the Aspen Club and review the presentations made about the availability of the facilities to local employees. Penne said this is one of the reasons for tabling the application. Dunaway said the commission should not be concerned with the cost of membership of a private club. There were no price agreements in the original discussions. The applicant agreed to be open to the public, nothing more. Dunaway warned the deal offered to the city employees could be viewed as a bribe. Helton Anderson moved to table the application to May 8 , 1984 , based on planning office ' s reasoning that the application did not adequately address its impacts and the established criteria for PUD amendments; seconded by Roger Hunt. All in favor; motion carried. Bunt leaves the chambers. PUBLIC HEARING; ASPEN CHANCE PRELIMINARY PL Penne updated the fire departments requirements. The hydrants currently located in the vicinity of the project on Ute Avenue and Elks Road will provide the access to the water required . The additional hydrant (discussed in the memo dated April 3 , 1984, from the planning office, page two, item two of the "Planning Office Review") is not necessary. Access to within the required 100 feet of the proposed buildings is adequate with the 20 foot width. Other areas of concern, specifically the grade of access roads, have been expressed by the commission and other offices involved in the review process. Planning office is unable to comment on the areas outside its area of concern. Additional variances should be discussed with the different offices or with individuals raising these matters. Section 24-8 .15 in the code requires the commission consider the appropriateness of the architecture within the guidelines listed in the memo. The units have been sited on the property for maximum privacy and minimum visibility. The roof lines are varied to break up the mass. Natural materials are being used. 9 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3, 1984 The building department raised some questions . She refers to a site plan posted on the board. There is a ridge effect in 'the design which sites a portion of some houses over the water. The building department is concerned those houses could be converted to bandit units. They meet the definition of a dwelling unit with either a bath or kitchen facility. These units have two baths . The applicant has suggested eliminating the outside entrance , so the units can only be accessed through the main house . This discourages people walking through the living areas of the owner' s homes. The applicant also suggested a covenant. Purchasers of the units will know that the units are limited to a single family use. Owners of the three approved caretaker units will be put on notice on the use . In some cases during the winter those accesses are inaccessible. The housing authority has reviewed and approved the employee housing proposal. The units are considered duplexes. The lots are 20 ,000 square feet, the requirement of the zone. The units cannot become condominiumized. They have to remain rental units. Condominiumization raises questions on the price category of the units. The low to moderate income housing would be eliminated. The existence of the current units creates a problem with condominium- ization. The proposed free market units are verified as existing or replacement units. Building rental caretaker units is sufficient. The question of the elimination of the earlier units does not come into this review. Planning office recommends that the commission grant preliminary plat subdivision, preliminary PUD, and 8040 greenline approval . Recommend a GM P exemption for the construction of the three deed restricted housing units. There are fourteen conditions for preliminary approval listed in the memo on page seven. Condition one includes all sixteen conditions determined by the commission in conceptual review. Penne eliminated the condition on the new fire hydrant. The chemical analysis, number three of the new conditions, is deleted. New condition fourteen, the Alps road and the tennis court parking and access agreement will be formalized. She read a letter from Jerry Fiewey saying "on Monday, March 26th, the Aspen Alps Board of Directors met concerning the Aspen Chance request of the utilization of the road for access to its subdivision . " At that time the Board of Directors granted permission to utilize the Alps Road for access to the Aspen Chance subdivision. A document formalizing this agreement is being prepared. The tennis court is being reviewed at the next board meeting. Penne 10 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission Avri _3__1 984 requested formal documentation of the agreement. Harvey asked when these conditions should be satisfied. Penne replied they are satisfied at different times. Harvey asked about written agreements, such as number four to extend 6" diameter water mains, he wants a timetable. Taddune said these are subjects for subdivision agreement. Subdivision agreement is part of final plat . Karen Smith, representative for the applicant , said those conditions necessary for preliminary PUD have been satisfied. Smith addressed some of the conditions. First, there is the fire condition. The applicant meets the 20 foot minimum width and the buildings are within 150 feet. There is an error in the figure of the grade of the road. It is not 6-8% . The road meets the subdivision design standards. These are private roads and driveways. The other question is do the roads meet the fire access standards. The fire department is more concerned with the width and with the accessibility of the hydrants , not with the grade. The grade is 12% . Penne quoted from a letter by the fire department : "the road grades serving lot sir, and seven we are unable to comment regarding these additional require- ments because they fall outside our area of concern. " Pardee asked Jay Hammond, engineering department, if it is engineering' s concern. Hammond responded that because these roads will remain private in nature, and the owners will be responsible for plowing and maintenance, etc. , he is not concerned with the additional 2% . The maximum allowable grade for subdivision is 10% . Pardee asked if there is any liability to the city if the fire trucks cannot negotiate the road. Gideon Kaufman, attorney for the applicant , said the applicant is not giving the city the road because of the steepness. Inherent in subdivision is a steepness in the road. Plowing has nothing to do with steepness. If it was a 2% grade and not plowed, the fire trucks would not be able to access. The issue is not the steepness but the lack of plowing. Pardee asked again if a fire truck cannot access a private road because of the steepness, the plowing, or a combi- nation, is there liability to the city. The city has agreed to serve the site. Taddune explained there is a minimal liability potential to the city because the city is not responsible for the plowing. It is assumed the design to be approved is a reasonable design. If the engineer says this is an acceptable design , then there is no problem. He is the expert. Taddune does not want to 11 RECORD OF PROCEEDINGS ReQUlarMeeting Planning and Zoning Commission ARril 3a 1984 expose the community to a fire hazard. The law is difficult to decipher. Municipalities are being sued for everything, . There is always a certain amount of exposure to negligent approval. Pardee said the experts are commenting on width not steepness . By accepting responsibility to service the road, does the steepness preclude accessibility. Kaufman said if there is no snow on the road the road is serviceable. The degree of steepness does not prevent the fire truck from accessing the road. Pardee said the engineering department says from an engineering standpoint the road is alright because it is private ; the fire department says the road is wide enough , that is its only concern. But, there is tacit acceptance of the obligation to service the private road. Taddune said these are good questions, but the question is the maintenance of a private road. The city has no liability then. If it is a design question, the liability may be there to the city on some imaginative theory but it is minimal. Pardee said the commission has never accepted a road with more than a 10% grade and a 100 feet from the fire hydrant. Smith clarified that the hydrant is located on the Alps Road, that is sufficient for the fire department to service the development. Smith addressed the confirmation of water rights. Tam Scott has written a letter, to be submitted into the records , which indicates the priority of water rights. She reported Bob Nelson raised the question about water flowing through the property and about ponds. The water is owned by the City of Aspen. It runs to Glory Hole Park and the mall. The City of Aspen will probably not use the water for anything except for snow making. There is enough water with the multiple City of Aspen water right to keep water on the site. Penne asked if ponding the water will effect the mall water. Smith said ponding will eliminate sedimentation, it will not effect the water flow. Ed Zasacky, representative for the applicant, said the ponds and streams are lined with impermeable material underneath, there is no seepage. Smith addressed the quality of the water. The issue is whether the water from the mine will kill the trees. Nelson concluded the water is safe. He certified it based on this analvsis . The building department raised the issue of separate units , condition number six. She did not know the city code read the way it does. The units are not intended or designed for separate 12 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3j 1984 occupancy. They are not marketed as such. The preference is to attach a condition that a covenant be written that the units will be single family units. The houses with caretaker units will be covenanted as duplexes. The doors are an amenity; they are a convenience to the owner ; they access hot tubes. The covenant will give the city and the homeowners the right to enforce the condominium covenants. The next issue is the common facility and maintenance agreement , condition number twelve. This refers to Section 24-8 . 14 of the code, it relates to the common park area as opposed to a deed restriction on the entire property for any future residential development. Harvey asked what is common land and what is deve- lopable land. Smith said the common area is the land around the ponds and the land which runs through the middle of the site. The lots are the proper size for both the single family units and the duplexes. Harvey asked if there is sufficient land for future development which is not incorporated in the common land; a covenant against future residential development may not be desirable. Smith said if the zoning is changed in the future any developer would have the right to apply for the zoning at the time. The applicant is not going to do that. It is not logical to do that. The applicant wants to clarify that this requirement of the code is limited to the preservation of the open space. The applicant is not going to deed restrict against any future development in perpetuity when it is not necessary. Harvey said then the applicant intends to submit a common maintenance agreement and deed restriction against future residential development which would also cover the common area. If the lot size is lowered through some zoning change the applicant does not want to be excluded. Kaufman said the applicant still would have to come back and go through the whole amendment process. The code says the common area has to be deed restricted, but it should be clarified that that does not preclude the ability at some future time, if the zoning changes, to come forward. Penne said the common area is set by the plan today. Harvey reiterated that individual lots are being sold with an interest in the common area. If the zoning is changed, then the landowner has the right to come back and the right under new zoning to apply for more development on his lot. Penne said if the common area is deed restricted then the applicant is precluding himself from further development anyway. Kaufman said unless the zoning is changed. Kaufman said one of the commission ' s concerns was the ability of the applicant to use the Alps' Road. There is a letter which 13 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3, 1984 states the applicant has the ability to use the Alps Road. For years the Alps has been using the applicant' s property for parking for the tennis courts. The agreement discussed with the Alps is an exchange for parking for the Alps, this development would be able to utilize the Alp' s tennis courts. The problem is that the Board of Governors has to meet to negotiate this. That will not take place until the end of summer, well after the time the plat will be recorded. He proposed to deal with that as a private agreement between his applicant and the Aspen Alps, then record it. Do not make it a condition of the final plat. Harvey asked what happens if an agreement is not reached. Kaufman said that parcel , regardless of the agreement , will be designated as common parking. The plat will remain the same. Who will be able to use the parking is a private discussion between two property owners. Harvey said condition fourteen remains the same except for the deletion of "tennis court parking. " David Finholm, architect for the project, indicated on a site plan the designated parking to be recorded for the plat. Smith requested the amendment of the location of the trail easement. The old site for the trail is up too high. The site is too steep. Too much grading would have to be done. The damage done would be contrary to the 8040 greenline review. She proposes to drop the trail easement down to the existing trail and that is shown on the plat. She requested the language read a 20 foot trail easement with an actual trail width of five feet. Specifically condition that only a bobcat be used in the construction. The purpose of the trail is for ski and hiking access. It is not a typical bicycle trail. This is addressed in number nine of the original sixteen conditions. Harvey asked if Jim Holland, parks department, or the proper authority consulted about this proposal. Is a condition is needed. Penne suggested the applicant get more information before final plat. She suggested language which reads legal description of proposed trail easement and its relationship to adjoining properties to be reviewed by the park ' s director and SPCA. Pardee expressed concern over phrases in the report (McLoughlin Report) , for example, "most impacts can probably, " " it does not appear , " " should be investigated. " The conclusions are hedged. He requested the city engineer review the report in detail . This report assumes the obtained mine maps are correct. The most critical facet of the approval of this application is the strange nature of the site. Hammond said that is a preli- minary report and that is why the conclusions are vague. The applicant is only anticipating problems. If problems have been 14 RECORD OF PROCEEDINGS Regular Meeting _ Planning and Zoning Commission April 3. 1984 hidden or been exposed by the investigation to date, the applicant will determine in construction the appropriate engineering design. As far as the mapping, the applicant can be confident that there was extensive mining activity under the site . There are no major stopes under the site. This is a preliminary report and in the course of detailed design development specific engineering solutions to the problems encountered on each site will be provided. Pardee said how does the commission insure that the city is protected from problems. Hammond suggested a condition that the geologist remain involved in the detail design development, that Chen Associates sign off the final design, and the engineering department be consulted during construction on any changes . Pardee said he was concerned with the tailings not the water. McLoughlin concluded there were high concentrations of leachable lead, mercury and cyanide. The levels are eight times acceptable levels. The health department should be consulted. Smith said that is the request Bob Nelson made, to test the quality of the water. Zasacky said the water will not be allowed to permeate down through the rock as it travels through the site. Hammond said there is a recommendation in the application which states that a minimum of 12 inches of topsoil will be used, topsoil prevents permeation. Pardee wished the water tested at the finish of the project . Has arsenic been addressed? Zasackv said the water was measured at the mine exit. Pardee said there are many peculiar problems with this site that the city may be liable for. Is the city adequately protected from, for example, the sinkings, the stopes, arsenic, etc. , in a condition. Hammond said this is a preliminary application. The applicant has identified specific problems suggested and suggested mitigating measures. The applicant is bound to the representations the applicant has made. If there is a specific concern, add a condition which reiterates the applicant' s obligation to mitigate the problems. For example, the topsoil is a measure which mitigates the toxicity in the lower soils. Penne said condition one and condition ten say just that. Pardee requested condition ten be expanded to say that the applicant continue to work with a geologist and water engineer , and those consultants sign off the project. If problems are encountered, they will coordinate with the city engineer. Smith said the more generic requirement is acceptable. Penne recommended the language read the recommendations be followed in an on going relationship through construction of the project, including coordination with the engineering department . " Harvey added "the applicant agree to follow the soil and water engineering 15 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April-3, 1984 recommendations issued after the engineer reviews the final design. " David Finholm, architect for the project, said the design follows the character of the barn, the old mining building. The Spar Gulch runoff , the hundred year and five year flood, and the aline waters encouraged elevating two parts of the buildings and designing bridges. The buildings are a residential scale. Finholm agreed the best way to deal with the potential bandit units is through a covenant. He indicated on the site plan the location of the caretaker units. Roofs are shaker shingles. The building facade is stone. Driving pilings are used. There is proper orientation for maximum solar benefit and privacy. The units are three stories. There is a two car garage for each unit. The ratio is one car to a bedroom. The common parking in the lower section of the site is extra. There is one fireplace per unit as allowed by code. Ilarvey opened the public hearing. Bill Hewitt, owner of lot 5 in the proposed development, presents a list of objections to the project to the commission. Fie has tried to work with the developer to resolve issues , but the developer has not been reasonable or communicative. Hewitt' s attorney, Charles Fagan, regretfully is out of town. First , there is a problem with the water. His water line, which runs from the mine, runs through the middle of the proposed project . It has been there for some twenty years . He uses that water. He does not have a problem with what the developer wants to do with the property, but he does not want the developer to negatively impact him. How is the water line going to be protected. Harvey asked what kind of easement Hewitt has for the line. Hewitt answered prescriptive. He is going to file this week in court. Lyle Reider and Linda Edwards have water lines located there also. Stan Johnson owns and leases this to people. He does not want his water cut off. Taddune asked Hewitt if he tried to work that out with the developer. Hewitt tried to work it out with the developer. Initially he was going to develop the property jointly with the developer , that did not happen. Taddune asked what solution he proposed to the water problem. Hewitt reported the developer sent him a letter that the developer owns the water. The developer proposed to let him use some of the water. Then the developer changed his mind. Hewitt is not on the city water system. Although he could tap into city water he does not want to. 16 RECORD OF PROCEEDINGS Regular_Meeting Planning and Zoning Commission. April 3, 1984_ Second, fence and trees are proposed around his property. Hewitt has been using an access for at least thirty years . It has been used even to the 1001 point. The developer may be denying him access. His attorney advised him that he has a prescriptive easement, and the proposed trees and fence will deny him his prescriptive easement. Harvey asked if the easement is used to access his property . Does Hewitt have a street cut on Ute Avenue? Hewitt points out on a site plan the location of Ute Avenue , the location of the cabins. Ute Avenue is frontage to his property. The easement is used to access the back and side units. Pardee interrupted. The commission should listen to the objections. The commission is not here to make legal decisions . If the applicant ' s representations are false, he can not record. The commission should not be hearing legal arguments between contesting landowners . Hewitt replied his attorney advised him to outline the objections. Hewitt continued. He has prescriptive easement . He does not want the trees or fence. Issue three is the fence and trees on the westerly border. There is a question of adverse possession. The section is four to ten feet, and runs 98 feet . He does not want a fence or trees on his property. Number four , the same issue applies to the easterly portion of the property . There is at least a two to seven foot section running 98 feet. He does not want trees or a fence there either. Number five, there is a question of the fence on the westerly, southerly, and the easterly border. That fence and trees are negatively impacting his god given right to light, to fresh air, and to solar benefits. The trees negatively impact his views. Issue number six is drainage . The developer intends to pave all around his property. Hewitt assumes the developer is responsible for the run off . In the southern part of Hewitt ' s property the pavement should be trimmed so run off drains properly. Curbs and tar will not work . Eventually there will be leakage into his property. There is no drainage problem now. Issue seven is noise and dust during construction. Hewitt proposed another access for the equipment, access from Ute Avenue just southeast of his property. 17 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3, 1984 There is an adverse possession claim. The survey indicates that the lot is not mathematically close. There is question about the lot line . The court will settle the issue. If the court favors Hewitt then the developer ' s lot is too close to his. Harvey said the commission does not get involved with the legal aspects, but with impacts on neighbors. Hewitt noted that the developer ' s application has a title report on Hewitt' s property. That should not be in the application. Kaufman replied that this is the first he has been made aware of the objections. There was some discussion in the beginning between Mr. Meyer and Mr. Hewitt on the inclusion of this particular piece of property in this project. A sufficient monetary solution was not worked out. He assumed that was the end of the issue. Hewitt certainly has the right to go court to examine his client' s legal ownership. His client has supplied all the surveys, all the needed documentation, all the title reports which show ownership by his client . The commission has to rely on what has been represented. If Hewitt wants to go to court and challenge ownership, that is outside the commission ' s purview. Nothing has been raised is this presentation which should effect the commission' s approval. The court can award an injunction. But the commission has to proceed as if the objections were not made. Hewitt argued he has been attempting to communicate and negotiate with Mr. Meyers. He told Meyers personally that he does not want a fence and trees around his property. The developer has had the audacity not to return phone calls. The developer has not been sensitive to the neighbors. Hewitt has lived on the property for four years. He has never had a problem with the Gant , Lyle Reider , the Alps, etc. The developer arrives in the neighborhood and starts pushing people. Hewitt will give this to the courts. Harvey said the landscape plan for the property is in final plat. The commission looks at preliminary, Council looks at final . Regarding trees and fencing, the landscape items, the commission cannot act on that issue. Harvey said if the applicant loses in court, the plat as approved is not approved because it is not as represented. It is a civil question. Harvey said the issue to be addressed is the water. He asked the applicant if he is aware of the water concern . Zasacky 18 RECORD OF PROCEEDINGS Regular Meeting _Planning and Zoning Commission April 3. 1984 replied the applicant has relied on the advice by Tam Scott . That decision is subject to water law. Harvey said if the water report indicates that the water at the exit of the mine is better than the City of Aspen water, if the water at the lower end of the property is filled with arsenic, etc. , and if the applicant agrees Hewitt has a right to the water and delivers the water , then Hewitt might receive water polluted with arsenic, etc. There is an issue of impact on the community. There is a question of legal rights to water based on long term use. Zasacky said Hewitt is not being denied water. Hewitt can connect with city water . Kaufman said he is not conceding the point he has that right. Harvey said fine, but that is an issue which involves the neighborhood where a PUD project is located. Pardee said it is clearly a question of prescriptive rights, it is a legal question. The commission is not responsible for determining that. The legal process will determine that. An injunction can be issued. Taddune said a concern is the possibility that the survey is misrepresented. Kaufman said the survey is certified. Taddune said this is an issue the commission should resolve with the engineering department. Harvey said the commission ' s approval is conditioned upon representations made. Taddune said it should be made clear to the applicant that approval is clearly conditioned upon that all the facts set forth in the preliminary plat are accurate. If Hewitt goes to court and the facts are challenged, and this is the city ' s position, then this matter would have to come to back to preliminary for reconsideration. The commission cannot sit here now as a court and decide whether Hewitt's assertions of prescriptive rights or adverse possession are accurate . Hewitt would have to award a TRO or motion for a preliminary injunction, in which case he would have to bond and show irreparable harm. Harvey asked if the commission ' s recommendation should address this directly. Taddune replied no, except that the applicant is put on notice at this point that if through some litigation or legal proceeding that the facts set forth in the preliminary plat are shown to be inaccurate, the applicant will have to come back before the planning and zoning commission . Kaufman understood. Harvey reiterated the applicant wants preliminary plat subdivision, preliminary PUD, 8040 greenline, and a recommendation for Cr1P exemption for the employee housing units. Penne explained the conditions will be taken forward to Council for final plat review Harvey asked for time limits on the conditions in the resolution. Penne said a schedule of construction is outlined in the memo. 19 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3, 1984 Harvey is concerned with passing all these conditions forward to final plat until some of the conditions are met. Smith said the items which have to be satisfied prior to final plat are mentioned. Penne said the housing authority agreement has to be concluded prior to issuance of a building permit. The remaining conditions will be part and parcel of the PUD agreement. Tygre leaves the chambers. Harvey asked if the landscaping and grading issues need to be expanded on, or will engineering address that. Harvey asked if the commission will move forward on granting the subdivision PUD and 8040 greenline, and recommend a GM P exemption on the employee units. The commission outlined the changes to the conditions. Number ten Pardee said is the only condition changed. Number two, Harvey noted the fire hydrant is deleted. Plumber three is satisfied. Number six , the opportunity for separate lockable entrances is scratched and the phrase "based on the determination to the planning commission" is deleted. Number ten is expanded to read: "recommendations of the McLoughlin Report and the Chen Associates detailed review be followed in an ongoing relationship through approval of the final design and construction of the project including coordination with the city engineering department. " Number twelve, there is an addition to the second line: "against future residential development of the common area. " Number fourteen, "tennis court parking" is deleted. Pardee asked if the McLoughlin Report addressed street water runoff. Smith asked approval of the preliminary plat with the revised trail alignment subject to review. Condition nine , Penne rewrote to include that the "applicant 20 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission April 3. 1984 show -legal description of the proposed trail easement and its relationship to adjoining properties, and approval by the park ' s director and/or SPCA, and fire department. " Harvey asked who owns the water. Smith replied based on Tam Scott ' s letter , the City of Aspen owns 1 . 5 cfs with a senior right. The applicant will pursue an agreement with the city for use of the water , if it is needed. Harvey said include in condition three "confirmation of water rights for the Durant Mine water and agreement for use. " Harvey closed the public hearing. Lee Pardee moved to grant preliminary plat subdivision, preliminary PUD, and 8040 greenline approval ; and moved to recommend GM P exemption for the construction of three deed restricted employee housing units, all subject to the conditions as outlined in the planning office memo of April 3 , 1984 , and as amended according to the minutes of this meeting. Seconded by Welton Anderson. Pardee, Harvey, and Anderson favored the motion. white opposed. Pardee moved to continue the special meeting to hear the Stevenson- Agate Conceptual PUD to April 4 , 1984 , at 9: 30 a.m. in the council chambers ; seconded by Welton Anderson. All in favor ; motion carried. r1eeting adjourned at 8 : 00 p.m. Barbara Norris, Deputy City Clerk 21