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HomeMy WebLinkAboutminutes.apz.19840717 RECORD OF PROCEEDINGS Regular Meeting Planning and zoning Commission July 17. 1984 Chairman Perry Harvey called the meeting to order at 5: 03 p.m. with commissioners Jasmine Tygre , Pat Fallin, Vielton Anderson, Lee Pardee, David White, Roger Hunt, and Mary Peyton present. COMMISSIONERS' COMMENTS Harvey asked if any action has been taken to replace the trees in town. Alan Richman, planning office, reviewed the code after the last meeting. There is a provision which requires a building permit for tree removal. There is also a provision which states that the building inspector m_y require that a tree of similar stature replace the felled tree. A former county commissioner called him about the same concerned tree and suggested the code read "shall. " Harvey asked if the trees along Main Street are the responsibility of the city or private property owners . Harvey also raised the issue of differentiating between private property owners who have to get permission to cut trees down and the city who does not. Pardee interpreted the tree clause as addressing the removal of healthy trees not dead trees. If someone removes a tree for some reason, then the city may require the tree be placed somewhere else on the property. Richman said if the tree is dead or dying, the requirement is to replace it with a tree less in diameter, for example. The first thing to check out with the case at hand is whether the building inspector did in fact issue a permit for the removal of the tree. If the the inspector did, then was there a requirement for mitigation; if not, why? Harvey asked if it is within the Commission ' s jurisdiction to review this code? Richman replied that if the Commission finds a code that is not satisfactory, then the Commission can initiate a code amendment. Harvey suggested the Commission sponsor something to amend the code to deal with the trees which affect the public aesthetics. T•Thite asked if the parks department has an inventory of trees. Harvey encouraged action for a replacement policy. He directed Richman to come back with a report on the existing language so the Commission can take some action. Pardee encouraged Richman to find out not just what the existing language is on the trees but what the existing procedure is . There may some procedure in the parks department which is not codified. Richman said the code refers to the parks director as a consultant in determining a tree ' s status, but it is vested in the building inspector to actually authorize the permit for the tree. Hunt asked about the status of Arthur ' s Restaurant. Richman mentioned the complaint to Drueding, but there has been no response. RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 Glenn Horn, planning office, answered the question on the potential cut in the hillside (with respect to the Highway 82 construction) . He points out on a map the ultimate clear zone . The ratio has to be 34 : 1 ; f or every 34 feet of distance from the runway the ground can slope upward only one foot. The existing slope was created during last year ' s construction. He describes the proposal for the area. Some site work will have to be done along one hundred yards . Some excavation may have to be done also. The intent is to gradually grade the earth similarly to the earthwork done last year . Sketches are available. He suggested another site visit. He encouraged the Commission to make a recommendation as soon as possible. The Commission agreed to a site visit on July 31st at 5 : 00 p.m. MINUTES May 8 , 1 984 : Pat Fall in moved to approve the minutes of May 8, 1984; seconded by David white. All in favor; motion carried. May 22 , 1984 : Welton Anderson moved to approve the minutes of May 22, 1984; seconded by Roger Hunt. All in favor; motion carried. June 5 , 1984 : Jasmine Tygre moved to approve the minutes of June 5 , 1984 ; seconded by Pat Fallin. All in favor ; motion carried. June 19 , 1984 : David white moved to approve the minutes of June 19 , 1984; seconded by Jasmine Tygre. All in favor motion carried. July 3 , 1984: Roger Hunt moved to approve the minutes of July 3 , 1984; seconded by Jasmine Tygre. All in favor ; motion carried. PUBLIC HEARING DELETION OF DUPLEXES AS PERMITTED USES IN THE R-6, R-15, R-15A. AND R-30 ZONES Richman makes the presentation. There were some concerns regarding duplexes raised at the July 3rd meeting. There are two issues raised by concerned neighbors who initiated the code amendment to band duplexes in the R-6 to R-30 zones. The first point raised was that duplexes being constructed are large and are mirror image structures which are out of character with the historical structures surrounding the duplexes. The second point raised was that the owners of very large lots , particularly in the R-6 and R-15 zones, have the ability to subdivide their lots. Neighbors who expected at one point that neighboring lots would house single family residences are concerned at the potential through subdivision to build more than one residence. This was the underlying theme for the proposal. 1) RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 Richman said neither theme is far from the issues that the planning office commented as being the reasons for initiating the code amendment : the potential bulk, size, and style of the types of duplexes being built in the neighborhoods as large side by side duplexes; and the intensity of the use of the properties as multiple units on a single lot . The concerns are valid. The concern of large side by side duplexing is one shared by both the public, the planning office and the Commission. The Commission has acted on this issue with the adoption of Ordinance 11, Series 1982 . One question raised at the July 3rd meeting was have any duplexes been built since the adoption of Ordinance 11 . Richman perused the building permits since May, 1982, and concluded that there has not been a building permit issued for a single duplex since 1982 with the exception of the unit on Fifth and north. That unit was not reviewed under the context of the FAR regulations. Some commissioners reasoned that given the adopted FAR it was impractical for someone to design a mirror image duplex. For example, if the Marquand lot, which has been the center of the discussion surrounding the code amendment request, is split into two 18,000 square foot lots then two duplexes could be built on those two lots each 5 , 100 square feet given the existing FAR regulations . In comparison, two single residences on 18,000 square foot lots could be 4,700 square feet each. There is only a 10% difference between a single family and duplex structure. The issue of large mirror image duplexes has been solved with the FAR. Richman supports the points made by the commissioners in the work session a few weeks ago. Fie does not see the ability for someone to build a large mirror image duplex. Harvey remarked this is the third building season since May, 1982 . Prior to the FAR' s, 9,000 square foot lots were allowed unlimited FAR. The only governing factors were height and setbacks. Kaufman noted only R/MF was restricted to a 1 : 1 FAR. Richman said there has been a substantial change since the pre- existing conditions. Hunt asked if the Marauand lot was subdivided into six R-6 lots what square footage would be allowed. Richman replied one would have to go through G11P consideration; 3,240 square feet might be allowed per lot for a total square footage of 19 , 440 square feet. Sunny Vann, planning office , noted the process the Commission went through in determining the FAR' s was exhaustive. All struc- tures for which square footage information was available were surveyed. The desire was to establish a series of FAR' s that were reasonably consistent with the scale of the dominant fabric of the R-6 through R/MF neighborhoods. The secondary consideration was to create as few nonconforming structures as possible because of the problems associated with a nonconforming status. There was extensive debate over the FAR ' s the Commission recommended. Council somewhat raised the rather strenuous recom- RECORD OF PROCEEDINGS Regular Meeting Planning and zoning Commission July 17. 1984 mendation by the Commission to provide reasonable buildout potential for those lots . They are substantially below that which could have been built in an R-15 through R-30 lot in those neighborhoods. Richman addressed the issue of the potential in Aspen to have subdivisions take place in the neighborhoods where people expected only single residences to be built not multiple residences. Look at the data. There are very few vacant parcels in the west end of any size . There are only three vacant parcels greater than 9,000 square feet which could be subdivided and might have the problem of multiple residences. The only other parcel that might have this problem is the Agate parcel . The Commission has reviewed the Agate . The redevelopment project included both single family and duplex configurations ; the Commission will be reviewing this development in the future. The Agate redevelopment would have the ability to subdivide but not to increase number of units. Richman does not identify the subdivision issue as being a real problem at this time. The Commission needs to look at the fact that if someone is zoned R-6 or R-15, which are large parcels, the zoning and subdivision regulations give those people very basic rights to subdivide the land. People with larger parcels need to be treated differently than people with small 6 , 000 square foot parcels, otherwise , there would be serious legal implications. If someone has a 36 , 000 square foot parcel he clearly has the capability to build more than one unit. An ordinance was drafted by Taddune in response to comments made at city council that the zoning districts in the west end remove duplexing from the area as a permitted use. Some questions have been raised as to why the R-30 zone is in the draft. The R- 30 zone is included because some of the west end area has R-30 zoning . By creating this ordinance the west end neighborhood is not exclusively affected. Remember, duplexes are in most of the neighborhoods in Aspen. For example, there are substantial numbers on Cemetery Lane, in the Shadow mountain area, at the base of the Mountain, and in the Smuggler east end area. Any action favoring this ordinance has serious implications on- other- landowners in other neighborhoods under the equal protection doctrine law. The Commission needs to take comments and conside- rations from all neighborhoods within the city. Richman found that of the 185 duplexes that exist in Aspen, two- thirds are in the R-6, R-15, R-15A, and R-30 zones and one-third in the R/TGIF zone . Approximately sixty duplexes would not be and 125 would be affected by this ordinance. The effect would be to make those existing uses nonconforming uses and to make all land which is zoned with the capability of duplex buildout incapable of duplex buildout. The Commission needs to consider carefully what happens when a structure is made nonconforming. There is a difference between a A RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 nonconforming structure and nonconforming use . A nonconforming structure cannot extend its nonconformities. For example, if a structure is nonconforming as to its FAR, and the FAR is reduced in a zone district, then the structure is effectively limited to ever increasing its size which was the exact intent of the FAR in the first place. When a structure is nonconforming as to its use, its ability to do any repairs or maintenance in the future is limited. This has very serious implications upon landowners. The ability to do extensions is limited. For example, size cannot be increased and the ability to do maintenance is limited. Financial capability is limited also. Fie talked to an owner this afternoon who is interested in doing an one hundred square foot addition to his kitchen . It is a duplex in the R-30 zone with a buildout capacity of 1 ,600 square feet. Under this proposed regulation the owner would be precluded from expanding his kitchen. That kind of action by the ordinance has a very serious affect on the homeowner without any good reason behind it. The ordinance could seriously affect the ability of homeowners to upgrade houses and to maintain houses in the future. Unless there are serious problems caused by duplexing then the ordinance should not be adopted. Richman reiterated the situation with duplexes is not particularly problematic but the side effects are. The planning office recommends that the Commis- sion recommend to Council denial of this ordinance. Harvey opened the public hearing. Lewis Raphael spoke. He owns half of a duplex in the Snowbunny area. His unit is less than 1 ,000 square feet on one-third of an acre. Legally he has the capability of expanding further. It is not one of the monstrous units. He has lived in the unit for fifteen years with his family. He understands if the duplex becomes nonconforming that it would be difficult to sell his unit, it would be difficult to get financing, etc. Perhaps there is another section of town that has a problem with duplexes but it is unfortunate the feelings from one part of town are allowed to have such a broad affect on the entire city, especially on units similar to his small unit. He recommended denial of the ordinance. Bill Martin, west end homeowner, finds fault with some of the reasoning in Richman' s memorandum. First, Richman only states two issues. The third and most imortant issue that the Commission needs to consider is the historical characteristic of the community of Aspen. He recognizes that this is not an easy problem before the Commission. The Commission has spent years resolving the problem of zoning. He has been in Aspen thirteen years, and he spent ten years at Snowmass on zoning. He knows what the problems have been and what the Commission has struggled with. The FAR, has improved the conditions in Aspen. But the barndoor was open long ago. The west end, in particular, is composed of single family homes on horizontal and vertical streets characteristic of the old west in Aspen. Aspenites r_ RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 ought to be concerned about preserving this character of the community. Elimination of duplexes is one of the steps which should be initiated to preserve this historical characteristic. Planning office is wrapped around the axle in administration. Richman has stated that nonconforming status ties up everyone. That is incorrect. Martin reasoned that there is an imposed FAR on one ' s lot. What prevents one from building to the capacity of the FAR? The ordinance does not have to be worded to make existing duplexes nonconforming uses. Martin has two homes, both historically designated, a status he resisted. He is permitted to add 500 square feet on to his lot but no more. That is a FAR ruling. He asked the city not to get tied up in the administration of changing a zoning condition if the city wants to preserve some character in Aspen. Richman has argued this ordinance will create a proliferation of construction out in the county. Residents have the right in this community not to be strangled by buildings. He cited Butch Clark who strangled two small homeowners (he is referring to the single family unit between Third and Fourth) . Was that action right? The duplex built on Fifth which was cited by Richman is oversized for the community. The fact that one can build a 4 , 500 square foot duplex on a R-6 lot versus a 4 ,000 square foot single family unit is not the issue. The issue is whether or not the city wants to maintain Aspen' s character. Aspen has the historically designated zoning through the building code, but the city does not have control over what is put on 4, 500 square feet. The city can control this by mandating the area as single family while protecting the existing duplexes. The intent is not to tear the duplexes down. Noncon- forming was put in for good reason, but it has outlived is usage. The city is trying to find ways to help the nonconforming lodge owners who have been strangled for ten years. With some good thought on the Commission' s part and the planning office' s part the nonconforming status of duplexes can be solved. Martin does not believe the owner of the Marquand lot should be permitted to put one duplex on an 18,000 square foot lot. It is wrong. That is not the character that he wants. That property is on the edge of an historical preservation area. Aspen cannot go back to the early 1880 ' s but the city can maintain some of its existing historic character. Jim Adams who lives far west of the west end spoke. He is one of many people who have been here for a number of years and who have invested in property in the west end with the hope someday of duplexing their lots. His duplex is in the R-15 zone district not the R-6 . He is as upset as Martin about some of the monsters built in the R-6 area. He checked a year ago how many square feet he was allowed on his 31 ,000 square foot lot. It was almost as much as the two lots in the R-6 area. This is the real culprit . People do not want to be deprived of the ability to K RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 develop duplexes on their property in the west end. Mike Clement has lived in Aspen for fifteen years. He moved to the west end six months ago. He has worked hard and frugally saved to make an investment in Aspen. If this ordinance is passed then the rug will be pulled from under him. He bought half of a dilapidated duplex with the intent of making improvements on the place . If this ordinance is passed then he cannot . Mr . Martin ' s group is a little misdirected to think that this ordinance will maintain Aspen' s 1880 ' s look. nobody in town has the ability to dictate the architecture of a building put up on any lot be it a duplex or a single family house. If the Martin group wants Aspen to look 1880ish then move for the adoption of an ordinance addressing that. He agrees some of the duplexes have been instrumental in getting the FAR initiated in the past, but this problem has been solved. It is too bad the city cannot go back three years and change some of the situations. The proposed ordinance does not help anything. Mary Martin said the ordinance was not designed to be a contest between someone who has enough property to build a duplex and someone who does not like the look of a duplex . It appears that is happening. But that is not the issue. If an ordinance is legislated it is just as simple to propose an amendment to the ordinance that allows extension of presently owned duplexes with a variance for those who already own a duplex so nonconformance use would not apply. She understands the concern by the person who bought his land with the intention of building two pieces , selling one , and living in the other. But, can he not build a house of that size with employee housing. The planning office has been pleading for years to build employee housing with new building. Vann said the city has been encouraging employee housing units since 1979. The planning office has been instructed to draft ordinances to bring this about. The planning office has done so. He further explained within the residential zone districts one single family dwelling may be built on a lot. If the lot is large enough a duplex can be built. A duplex is defined as two attached single family units. One cannot build on a single parcel two separate single family structures. If the lot is large enough to build two dwelling units on it, one of those units could be an employee housing unit but the unit would still be a duple: under the definition of the land use code. Two separate dwelling units cannot exist on the lot however . Mrs. martin replied then there are many bandit units in the community. Vann agreed there are bandit units throughout the west end but Council has adopted a very laissez faire attitude towards this for the purpose of providing diverse employee housing in the community. Mrs. Martin noted a survey was mailed to three hundred people. Of the one hundred people who answered the survey two-thirds of them favored the elimination of duplexes . Those people who favored the elimination were absentee property owners . The county 7 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 downzoned the farmers ten years ago. But the city allows for maximum buildout capacity and urbanization. Her request is for a single family zone. It is difficult for her to understand why the passage of the ordinance would complicate the paperwork. Henry Pederson, a resident of the west end , said if he could not have built a duplex he would not be able to live where he lives now. Therefore, it is important the statutes remain as they are. Doug Allen said Mr . Martin claims to represent the West End Improvement Association and Mr. Martin claims he sent out three hundred ballots to these people. If one believes his figures 22% of the people in the West End Improvement Association agree with his scenario. Allen has not seen the ballot and does not know how it was written. He has the letter Mr . Martin mailed to the members of the Improvement Association stating what was voted on and what the result was, but he has not seen the language of the ballot or actual results. Allen said Mr. Martin does not have any authority to speak for the West End Improvement Associa- tion. There are people in the West End Improvement Association who absolutely oppose Mr. Martin' s position. Jan Collins explained that ballots were sent to 300 west enders. There was a response to that ballot. Of the one hundred responses 66 or two-thirds favored the question. The ballot asked if a citizen' s petition should be initiated to stop the duplexes in the west end. She assumed from that ballot that she was being told to go ahead and initiate a citizen' s petition against duplexing in the west end. Some members of the West Side Improve- ment Association thought this citizen' s petition initiative should be presented to Council. They were told by the planning office to go before the Commission, procedurally this is correct. That is why a group is here tonight. A couple of things have happened since the initial ballot went out . One is that the group has talked to legal counsel about conformity and nonconformity. The idea presented was that the city could write the code so that conforming status could be applied to the already existing duplexes, the duplexes did not have to be nonconforming. It is understood there is a problem with an existing duplex becoming nonconforming. Legal counsel advised them that the code could be artfully written so that it designated existing duplexes, or duplexes built before 1984 , as conforming . The residential area is not a high impacted area like the commercial core or lodge district. It is important for the owners of duplexes to be allowed to expand or enhance their properties. The west end is the largest residential area visited by tourists , and therefore very visible. Perhaps this issue should be presented to the electorate on a ballot. With regards to the issue affecting other neighborhoods, there is nothing that precludes an area from being differentiated from R-6 by a R-6A zone category. There are ways around this. Q RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 Hunt said he is always upset with the way questionnaires are worded. He asked if the petition was worded "to stop the duplexes that are being built in the west end. " Collins responded the question asked "are you for initiating a citizen' s petition to eliminate duplexes in the west end. " Attached to the ballot was a copy of the existing code which explained what one could presently build. Conditional uses and permitted uses were attached also . Instead of a ballot initiative the group approached Council and the Commission. This procedure, however, does not preclude a citizen' s initiative. Bill Trumane owns half of a duplex on Cemetery Lane. He stated that he supports Richman ' s memo 1000 . He also supports the statements by Mr . Raphael and Dr . Clement. He was not aware of the meeting until late this afternoon. He owns half of a duplex and wants to be able to improve and upgrade the unit sometime in the future. His understanding is that if this ordinance passes he will not be able to do that. Philosophically he objects to the idea of being disenfranchised because sixty-six people in the west end want to eliminate duplexes. He is being zoned out of existence if the ordinance passes. His side by side duplex does not seem to be out of character with his neigh- borhood. Gideon Kaufman commented that the discussion is not a west end issue. The west end is zoned R-6, R-15 and R-30 . One reason why all the residential zone districts are placed together is because of the legal requirement that one neighborhood cannot be treated differently from another neighborhood without legal justification. The R-6 zone district encompasses the west end and other neighbor- hoods. They all need to be treated equally. Therefore, keep in mind that just because a few people in the west end do not want duplexes in their neighborhood is not that simple. It is not apparent the voters were told how many duplexes exist in the west end or how many duplexes could be built. It is not fair to judge the response. The heart of the issue is that there has been no basis shown for the need for an ordinance to eliminate duplexes. He has not heard about a single new duplex that has been built that is offensive since the adoption of the FAR. This action group is telling the city to adopt an ordinance which would require the city to go back through the code and amend many nonconforming ordinances because there is a problem with duplexes that is not identifiable. The argument appears that even though no new duplexes have been built the group does not like the duplexes. The group has told the Commission that the duplexes are out of character with the neighborhood. Kaufman looked at the character of the R-6 zone. There are houses on 3 ,000 square foot lots, that is character. There are two houses on one lot, that is character. There are duplexes that have been there for thirty or forty years, that is not character. There is not a building character in the west end that the elimination of duplexes will 0 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 eradicate. What is out of character is the large offensive buildings. The large building which Mr. Martin talked about is a single family unit owned by Butch Clark; the offending structure is not a duple.. The issue is not duplex versus single family; the issue is large buildings. That issue has been dealt with effec- tively. Kaufman addressed the Marquand property, located across the street from the Martin property. If the Marquand property was developed per the zone six single family residences could be built with an allowed buildout of 20 , 000 square feet. If two duplexes were built on the lot the allowed buildout would be 17 ,000 square feet. More can be built on a 6 ,000 square foot lot with a single family configuration than with a duplex. A mountain out of a molehill is being created. There are very few lots that still can be developed as duplexes. It would be unfair and unjust to tell those few people who have not built their duplexes that their duplexes are not in character and cannot be built. He hopes when the Commission makes its recommendation to Council that the Commission state it did not find any basis to eliminate the zoning codes as they presently exist. Mrs. r1artin said the ordinance presented to the Commission is not the same ordinance she asked for. She reads fragments from the draft of the ordinance. Vann explained the city adopted a special R-15 (A) zone classifi- cation when it annexed areas of the county. The city did not want to increase the development density on parcels located in the county which were coming into the city. In the county one can build a single family house on R-15 parcels, in the city one can build a duplex on R-15 parcels . The city' s policy was not to annex land simply to increase the owner ' s development potential. One whose R-15 county parcel was annexed to the city would be allowed a duplex right not a single family right . The city allowed the duplex right only if the owner deed restricted half of the duplex for an employee housing unit. This has been done only with three or four parcels. This solution was an incentive to scatter employee housing throughout the community. Mrs. Martin asked how Vann knows that the other half of that duplex is employee housing. Vann replied that prior to the issuance of a building permit to construct the duplex an owner is required to deed restrict the unit and enter into a legal contract with the city that one half of the duplex will be an employee housing unit . Those contracts are on record at the clerk ' s office and building enforcement office. John Stay lives next door to Mr . Trumane on Cemetery Lane . Stay owns a duplex. He has been in Aspen fifteen years. Stay has worked very hard to get where is his with the property that he owns. He does not want Mr. Martin' s personal fight with his neighbor to trespass into his property. He complained that this meeting was not well publicized. He could get many residents on Cemetery Lane to oppose the ordinance. Mr. Martin does not 1n RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 have the right to prohibit Stay from adding one hundred square feet to his kitchen. Stay is a licensed builder in Aspen and Snowmass. The ordinance would reduce home repairs and improvements and eliminate work for people who make a hard living building and constructing. Sandy Simpson has been an Aspen resident for thirteen years. She asked of the sixty-six who responded how many work and live in Aspen and how many are second homeowners. Martin repeated it is not his intention in any way to take one ' s duplex and restrict one from doing anything to the duplex that the law permits one to do. It is unreasonable for Stay to say Martin is attempting to deprive Stay of his right to do what the law permits. Mr. Martin also commented that Kaufman is his lawyer. He respect ' s Kaufman' s judgement. But the fact that duplexes have not been built in the last two years is not a fair test of the imposition of the FAR. Look at the economy of Aspen during the last two years. Do not be influenced by the fact there are no duplexes in the west end and do not conclude therefore that the FAR is taking care of duplexes. Richman ' s memo cites the fact that the Commission does not have the right to zone an area differently from one other zone or the Commission cannot deprive the Snowbunny area from something and not the west end. If the Commission does limit the entire city to single family then the Commission can limit single family in the west end. That is the Commission' s authority. He favored the Commis- sion recommend the ordinance to Council. Mrs. Martin went on record that she is not trying to deprive anyone from building. Harvey closed the public hearing. Vann addressed the third issue raised by Mr. Martin. Size, which FAR addresses, is not the issue. He concedes the fact that even though duplexes have not been built is not a valid test of the regulation. Because of some unique characteristic of the west end, however the area is defined, the inappropriateness of the con- struction of duplexes , regardless of their size, is a valid concern. Planning office did not intentionally leave this issue out last week; planning simply did not perceive the issue. The Commission could zone a specific geographical area of the city strictly to single family units. But the fact is that area is already developed and that complicates changing the zoning. The Commission would have to find a specific factual basis that distinguishes this specific geographical area from other geo- graphical areas in town. Most people would generally agree the west end has a high proli- feration of older Victorian homes . Many homes are designated as historic structures . The area is generally construed as being one of the finer, nicer residential areas with this specific characteristic. The reason is the area is the original site of 11 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 miner ' s lots and most of the parcels are from 3 , 000 to 9 , 000 square feet in size. However, it is also a mistake to assume that those are the only kinds of structures that are there. There are in some cases two single family structures on an individual lot as is the case with Mr. Martin. There are in some cases duplexes on lots. There are in some cases single family or duplexes or multiple structures on substandard lots. The neighbor- hood is not homogeneous from a planning perspective. There are substantial numbers of existing duplexes already located in the west end as well as lodges. First, the Commission has to find something unique about the neighborhood to distinguish it from the city' s other residential neighborhoods. Planning office did that cursorily and concluded there was no distinction. The area is too heterogeneous . 2.,1c is the first probl eLt. Now assume there is a distinction, assume there is something about this neighborhood that gives it unique treatment under the zoning regulations. If duplexes are precluded specifically in the west end and if a new zone district is created to cover this, R-6 (A) for example, those duplexes which are currently located in that zone district would become nonconforming uses. The regulation treats all categories of nonconforming uses in the city equally; the law requires all nonconforming uses be treated the same. Those duplexes in the west end could not be singled out as not affected by the nonconforming use regulations while all other nonconforming uses in the city are affected. That is the second problem. Vann reiterated the question : can one find something unique about the west end that would survive a challenge across all the other zone districts in which residential uses are allowed in the event someone was prepared to sue the city. Vann believed a distinction could not be made even though a preponderance of Victorian structures are located in the west end. Vann said the Commission needs to answer the threshold question. Is it appropriate to restrict this particular neighborhood only to single family homes? By doing this, what is the Commission trying to accomplish? He advised the Commission to answer these questions before it makes a recommendation to Council. If the Commission determines that it is appropriate to restrict the west end to single family homes then the staff can evaluate the legal implications and the types of mechanisms needed to achieve this goal. The planning office believes the FAR reduces the size of the duplex so that duplexes do not interfere with the west end character . Remember on a large parcel a person could build a single family house larger than a duplex. Structures are built lot line to lot line with little or no parking consideration, that is the deteriorating factor in this neighborhood. The deterio- rating factor has not been whether one or two people live in a 12 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 residence. Pardee argued the FAR handles the bulk and massing problem. The town is geographically constricted by growth management. Employees are the most likely tenants for duplexes. One of the greatest objectives of this Commission is to encourage employee housing within the city. Duplexes are regulated by the FAR and are good for the city. There is only a 10% difference in the floor area capacity between the duple; and the single family home. One employee family is living in 55% of what a single family lives in. The town needs the duplexes. Paul Taddune, city attorney, reported some people appeared before the Council requesting that Council consider the question of duplexes in the west end. The draft by the city attorney' s office was done primarily to bring the issue before the Council and the Commission. The attorney' s office did not do extensive analysis on the ordinance. The ordinance before the Commission is only a discussion document. The legislation is not necessarily the solution the attorney recommends . The attorney wants the Commis- sion to define the problem and solution. Anderson concurred with Pardee . The Commission has been reviewing the problem of excessive bulk for years. Two or three years ago a solution for excessive bulk was developed. The second point addresses the historical character of the west end. The first Victorian house that he worked on as an architect had two front doors for a small three bedroom home. He discovered in a number of other three room 400 square foot miner ' s cottages two front doors. luny duplex units existed which housed a family and a single miner . From an historical perspective duplexes have been around as long as the town has. Hunt wanted to see what parcels will change the existing cha- racter. In the west end there are three identifiable parcels which can be subdivided. Richman remarked the neighborhood is substantially built down. There is one small parcel and two large parcels which are divisible, excluding the Agate. Richman estimated there is a potential of six to ten additional duplexes under the GHP process. Thirty-five exist. Hunt does not see the addition of a half dozen or ten duplexes in the west end changing the character of the west end, he does not find merit in the argument that duplexing will change the character of the west end, and he cannot identify a problem. white commented that restricting duplexes and creating nonconfor- mities does not offer a solution. There is a greater problem in creating thirty-four nonconforming units as opposed to allow building ten to twelve duplexes. The problem is excessive bulk. The FAR handles it . If the intent is to maintain the architectural character of the west end then that may be an architectural review problem not a duplex problem. Victorian duplexes exist and loot: fine, look at San Francisco. The problem is preserving the Victorian characteristic in the west end, which 1 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 is important, and not eliminating duplexes and generating noncon- formities. Martin asked if it possible to zone the west end single family with an ordinance that reads nonconforming duplexes will comply with FAR. Second, anyone has the right to tear down his existing home and build a duplex on the lot. Therefore, Richman' s figures are not accurate. Vann responded. The west end could potentially be zoned diffe- rently from other neighborhoods and could be restricted to single family provided that one could come up with a rationale that would meet certain legal tests for treating people uniformly. The newly created zone district would not allow duplexes, there- fore, duplexes would be nonconforming uses. The problem arises that nonconforming uses in the west cannot be treated differently from the -nonconforming uses elsewhere in the city. That is the problem. The fact that duplexes are located in the west end does not give those duplexes special immunity from nonconforming use regulations . The intent of nonconforming regulation is to encourage a use in a zone district to die out over time. To bring that about the city will not allow one to repair the unit, to expand the unit, to do anything other than maintain the basic lifesaving considerations. Jasmine Tygre moved to recommend to Council that the proposed Ordinance 17, Series 1984, be denied because there is no valid purpose served by said ordinance; seconded by Pat Fallin. Discussion. Pardee suggested the motion include that the Commis- sion basically believes that duplexes are a healthy product for parts of the city, and one area should not be treated differently from another. Harvey suggested include something on FAR. Taddune advised the Commission if its concern is the nonconforming use then seek counsel either from Collin' s attorney or the city attorney. The concern by the planning office is not duplexes . For the record, all governmental regulations have to be supported by some competent evidence; there has to be justification for an ordinance . Changing the zoning in the west end as opposed to changing in other zones involves two standards which come into play in the broad legislative rezoning: one is conformity with the master plan; and two, without conformance with the master plan, then there has to be some change in the circumstances or the nature of the neighborhood to justify a change in zoning. Tygre clarified her intention. No purpose is being served by the ordinance. She suggested language explaining the Commission ' s reasoning behind the recommendation of denial. Hunt requested a resolution that would come back to the Commis- sion. He suggested the motion be amended to reflect that re- quest. Include in the resolution the arguments which the Commission either found merit in or no merit in. He agrees with the intent In RECORD OF PROCEEDINGS Regular Meeting Planning and zoning Commission July 17. 1984 of the motion but Council needs the arguments. ,jasmine Tygre moved to amend her motion to have the planning office write a resolution recommending denial with arguments ; seconded by Pat Fallin. All in favor ; motion carried. PUBLIC HEARING SPA/PUD CODE AMENDMENTS Richman explained the document is an annotated outline for the Commission to discuss the points that comprise the new SPA section of the code. The Commission last week stated it did not want to follow Council ' s proposal which was to eliminate entirely the SPA section of the code and to replace it with SPUD. The first point expressed in the document is that the Commission wants the SPA to be a review procedure with underlying zones. The Commission does not want a parcel zoned SPA without zone guidance on the map. SPA is defined as a review procedure. The purpose is is to allow for design flexibility especially for mixed use projects. Hunt said there is a problem with designating an underlying zone district in the SPA area of the institute property. If one wants 20 ,000 square feet of commercial space and 10 ,000 square feet of hotel space with the institute use how is the relationship among these zone districts to be determined, how is proportionality to be determined. Richman responded that there may be a need for multiple zones in some cases. The Commission could define at the time the parcel is designated what the intent was in designating the parcel. Secondly, not too many zones would be needed to take care of that kind of intent. The combination of zone uses does not need to be planned before the plan comes forward. He is looking for a guide only. Vann said specific portions of the site do not have to be singled out for specific zoning. The purpose of the SPA review process is to determine the proportionality. The findings by the Commis- sion to zone the land institute-academic-lodge-SPA is to allow the development of an integrated plan for the institute property whose principal use would be for academic purposes and whose accessory use would be limited to commercial facilities. At the time the specific SPA plan is submitted the Commission could review the specific plan against those reasonable proportions. If the Commission finds the proportions inconsistent with the intent of the SPA designation then the Commission could make recommendations. Punt cited the Little Nell property which includes with the SPA designation lodge, commercial, and conservation zoning districts. Zoning is in place by right and begin with that square feet by right for proportional determination. May be boundaries would shift. May be lodge would jog into the conservation or vice versa. At least one should be able to start out with that which 1 r, RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 is there by right. Vann said the SPA is only designated on the cc portion of the entire site. Remember the debate over planning' s recommendation that a design integrate the property and that the SPA designation ought to be placed over a larger portion of the property. The issue raised was something is given to the owner which he did not have before. No one trusts the SPA provi- sions because the SPA provisions are somewhat vague . In this particular case the zoning can be left exactly as it is and that portion of the property currently designated SPA can be maintained. But the Commission can expand the SPA if it finds that appro- priate. The Commission can chose to expand the SPA with certain directions as to the development of the future SPA plan. Richman elaborated Hunt' s point. By having an underlying zone should the SPA applicant be provided with that zoning by right? That is not in this document nor was it his intent. He perceives the underlying zone as a guide to the development. He does not see, as in the case of the Little Nell, that Little Nell has all the rights and purposes of cc. Property zoned with a PUD does not have the density allowed in that zone by right. It has to be proven that the density fits, density can be reduced. Pardee said the advantage of the SPA is it allows the city to treat complex and important parcels with multiple zones as a PUD. SPA allows the city to waive and to vary. SPA allows the city to take vital parcels and determine what it wants on the parcel. SPA provides the city the ability to modify an underlying zone for the benefit of the community. He does not want to worry about proportions until the proposal is received. He does not want to lose SPA. It is the most flexible zone for treating critical properties. Hunt said a problem in this community is that property tends to turnover often. Reliance is created with particular zones. The city has to be very careful here. Richman said if reliance is not desired with the underlying zone then that point needs to be brought out in the language. Harvey suggested locating language in "variations permitted in the following zoning requirements. . . " that variations can go either way on the scale. Richman noted he would extract the language from the PUD. Kaufman noted an important distinction between those areas already zoned cc with SPA and those areas where an applicant comes forward with a request for a SPA overlay over the already desig- nated area. The Little Nell parcel had a cc zoning designation. The owner came in requesting the SPA overlay because of the sensitivity of the development to the neighborhood. It is unfair for the city to designate a parcel SPA and then take away the cc or underlying zone away. Harvey opened the public hearing. John Doremus supported SPA as a review procedure. That is a healthy and constructive approach. The SPA as a review procedure 1A RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 needs underlying zoning. The only area underlying zoning does not exist is the institute site. Representing the future owner of the Meadows, that can be dealt with and handled as a discreet matter now during this process. By the time this new proposal is adopted everything will have underlying zoning. Vann said there are two courses of action the Commission can take. Little Nell, for example, has a certain amount of land area zoned cc which allows a maximum square footage that can be built under the commercial FAR. That is not a right, that is a carrying capacity established by the underlying zoning and by the amount of land zoned cc. The applicant either has to reconstruct on existing square footage on the site or compete under GMP. The applicant may or may not get the maximum allowable under zoning. If the Commission decided to leave only the cc zoned SPA, the applicant could come in with a commercial request for the maximum allowable FAR in the cc zone district (or the applicant may not depending the nature of the proposal) . With respect to this specific site the appropriate action would be to designate more of the property including a portion of the conservation zone as SPA. The goal is for an integrated review of the entire site. That was the basis for planning' s controversial recommendation to the ski core. If the nature of the review process is clarified and if the SPA designation entitlement is clarified then Council can resolve the problems for that particular site . For some sites when the inventory is reviewed the SPA designation may be expanded without touching the cc zone. On other sites the Commission may want to add additional underlying zones based on what should happen. The institute has always been referred to with certain types of uses. The city may want to include the SPA designation for those zone districts without specifically delineating the entire parcel of land. Each site will differ. But what will clearly happen is a reduction in the total number of sites in the city in which this type of review would be appropriate : Little Nell, Rubey Park , the Institute, Rio Grande, etc. The city will have to be flexible enough to treat each one differently. Kaufman asked if someone with property with an underlying zoning who asks for a &-,signation have the ability to request the SPA be removed. Richman noted a procedure has been created for de-designating. Kaufman said the problem is that one competes in the GMP, receives the allotment, then could be denied a SPA plan approval by the Commission. There is double jeopardy. The procedure is very expensive. Allow people to have a choice. If the underlying zone is cc, for example, allow a person the choice to take the zone or to ask to play the risky game. He does not want to see certain rights removed. Pardee said there are two underlying zonings : that which the person has through purchasing the property; and that which occurs through the Commission designating a parcel SPA. The zone is a property right which the city should not take away from the 1 -7 RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 owner. The second zone is one the city may want to include when creating a SPA overlay on a specific parcel. Richman remarked that it might be found that with the adoption of a precise development plan that the straight cc buildout might be too much. That is the reason for SPA. When the Little Nell property came forward everyone complained that the owners received the ability to do anything that they wanted to on the parcel. SPA puts the developer on notice to prove that the property works, on the otherhand some developers may not want that and may not want to risk losing their by right status. Bil Dunaway, publisher for the Aspen Times, commented the city purchased the land at the Rio Grande right-of-way because it was zoned SPA and the city could not legally refuse the warehouse developments. Vann corrected Dunaway. The reason the city could not refuse the development was because under the SPA process it was zoned commercial, SCI/commercial . The SPA process was not the culprit on the Trueman property. The culprit was that someone either correctly or incorrectly designated that parcel SCI , they did not envision the fact that the area should have been a park to start with. Dunaway mentioned there is no point in having a SPA if the city cannot reject what is under the underlying zoning. what is the use of considering a plan if the city does not have a legal right to reject the plan? Bunt argued the area under discussion was already an approved SPA, the SCI designation was different than what came before the Commis- sion. Dunaway said the problem still remains that there was a parcel zoned SCI with a SPA overlay. What is the point of having a SPA overlay and considering a SPA plan if the city cannot reject it? Pardee answered the landowner has property rights. The landowner who has SCI he can go through a growth management competition and build his warehouses without the SPA. But, the Commission reviewed the property and concluded the property should be developed a certain way. The Commission cannot take away the SCI but the Commission can give the owner an incentive to do something for the community benefit. The Commission cannot take away a property owner' s rights without compensation. Vann explained that the SPA process is not a tool to deny a use that is permitted in the underlying zone but to provide flexibility to review and to expand the development if it is desirable. Taddune explained in the Shapery case the SPA designation was a control mechanism that the city could utilize to get a custom made project. But the city cannot take advantage of the SPA to reject a good custom made project. The SPA gives the city the opportunity to negotiate trail easements and design. If there was not the SPA designation overlay the city would never have been able to extract those concessions. Jan Collins agreed it is important that the developer or owner rely on the underlying zoning. Can the city seek a commitment on part of owners, like a historic master plan, for designating specific areas for such a plan? Could the Commission be sensitive to this at the time of the review of the SPA? People who are contiguous IIQ RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 to a parcel have to be able to rely on a master plan for a specific area. Richman agreed. Dunaway addressed the criteria listed for the review . The language does not state that the city can deny a plan if a plan does not meet the master plan. The document expresses the ability for the Commission to review a plan but does not express the Commission' s right to deny the plan. This a problem for all the criteria in the code. If someone takes the city to court the city cannot deny him his rights. Richman suggested including language in the document that if the applicant does not meet the criteria the applicant shall be denied. Dunaway argued that is why the neighbors were so afraid of extending the SPA for the ski company. Vann interjected that there was no criteria then, but it is being suggested now that there should be criteria for a denial. If the SPA is extended onto the conservation zone district of Little Nell through this guideline the applicant then has the right to propose any use. But if the proposal does not comply with the criteria under the review process the city can deny the request for SPA approval. The fact that the SPA is designated does not give the applicant the right to build any- thing. Harvey said each specific site needs to be looked at. Each site needs a separate recommendation as to whether or not the removal of the SPA is appropriate. If the SPA is retained a statement of intent for the property is also needed. Richman asked if the Commission needs to see a precise development plan or concept plan when designating SPA. A critical issue with the Little Nell property was that Council refused to designate the property in the absence of a specific development plan. It was impractical for the developer to provide a development plan. Harvey responded the purpose of the SPA is to obstruct the development of parcels of land until the Commission reviews a precise plan. The review procedure would be imposed on properties in the abstract to allow the Commission to review the develop- ment. Hunt asked what is meant by abstract, a conceptual level . Richman explained in the case of the institute which is a SPA property, the Commission might determine the institute is a SPA property with certain underlying zonings and does not need to see a plan to make that determination. But when the Commission sees the plans it may entirely change the underlying zonings. The important issue is that the SPA is zoned SPA, that is enough . Harvey discouraged the scenario supporting developers coming in with a parcel and requesting a SPA because they want to vary the property to build in a certain way . The Commission should designate the parcels that it feels are important to be designated as SPA. Richman agreed. Richman reiterated that the Commission does not want to see a development plan to designate a site SPA. Kaufman asked about a site that is already designated SPA. Harvey answered if a site is designated SPA then the site will go through the SPA review I n. RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17. 1984 process. Kaufman asked if he came forward for a SPA designation for the adjacent property to Little dell what would he have to show to the Commission for the SPA designation. Vann explained all the existing SPA sites will be reviewed, then a recommendation will be made as to which parcels will be designated SPA because of their unique planning concerns . In the SPA designation process one may come forward to request expanding a SPA over a currently designated area. If the Commission concurs the site is unique then the Commission can designate the site SPA without requiring submission of plans at that time. The property can be locked into the review process where by no development could occur on that property until such time a precise plan is sub- mitted. Richman said the unique characteristics of that portion of the site not currently designated SPA need to be demonstrated. Doremus said if there is mixed ownership how can that be agreed upon. Vann said a geographical area of the city, i. e. the Rio Grande, which is in multiple ownership, would in its entirety be designated SPA for the review process. It does not matter how many people own it. The owners could come forward with separate plans or with group plans. The intent is to encourage a precise plan for the entire area. There are sections of the city where mandatory PUD is imposed over multiple ownerships. Dunaway addressed "c" on page two : "variations shall be per- mitted. . . in the following zoning requirements, open space, maximum height, minimum front yard . " It is very dangerous to permit variations . Harvey suggested the word "shall " be changed to "may" : "variations iLAY be permitted. . . " Peyton addressed the subject of variations. It seems that the word "variation" is taken by developers to mean "increases. " Cannot variation mean that decreases must be provided to offset increases? Pardee said in almost every case when a developer receives a variation increase there is some tradeoff to offset the variation. For example, if the developer is granted extra height more open space is generated because the footprint is reduced. Doremus explained there is no discussion when variations are less as opposed to more. For example, with 700 South Galena, there was a height variation and 600 open space. But the open space was not discussed. There are balances but the general public is not always aware of the pluses. Peyton envisioned a scenario where everything is a plus with no offsetting balances. Harvey suggested: "variations may be permitted and/or required in the following zoning requirements. " The language should read that the Commission can require a variance for more than the requirement. Richman suggested "opposed. " Peyton supported the stronger language. The applicant should be put on notice that when something is given in one area the applicant has to give away something elsewhere. Doremus asked what "d" is attempting to say. Richman explained that SPA does not give the applicant the ability to get out of growth management, nor does SPA give the applicant the ability to get out of standard street design or sidewalks. This draft is not 1)n RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 precise, this draft is to convey concepts. He will later sit down with the city attorney and planning director and refine the language. The language is similar to the language in the PUD code. Doremus addressed "e". He understood that the precise development plan in SPA is a conceptual plan. He does not understand why that which has gone through conceptual has to come up at preli- minary. Richman said he conceived a precise development plan as that which is going to be done in reality not in general . The adoption of a precise development plan goes through a two step process , through the Commission and Council . The final recorded document is the plan for the development. Fie purposefully eliminated conceptual review. He designed the process so that there is a public hearing review at the preliminary level with the Commission and final approval with Council . Harvey interpreted the document as saying that the Commission grants conceptual approval to the PUD prior to seeing specific plans for that area. Vann said the preliminary precise plan is the same as the conceptual plan. Say someone comes up with the concept. And the Commission agrees to the plan . The plan moves forward to Council who also approves the plan. That ap- proved plan is the conceptual precise plan. At the preliminary PUD level the detailed preliminary PUD document is the precise SPA plan which the Commission reviews. Harvey suggested the document read that in the case of a SPA which is a subdivision or a PUD that the conceptual presentation is the precise plan. The conceptual presentation for a PUD has to outline the entire project. Historically SPA has always been interpreted so that the Commission not take any action on land with an overlay of SPA until it has seen and approved a precise plan. How can the Commission approve a conceptual PUD before it has reviewed the precise plan? Richman clarified that the Commission is approving a concept and is authorizing further study that entails a preli- minary PUD or a precise plan. Harvey said then the concept is that which is developed and presented in the SPA plan. Vann said since SPA is a process why cannot it be identical to the four step PUD process with the ability to shorten the process if the site does not warrant a four step process. If the project happens to be a PUD then track concurrently. If the application is not a PUD and does not require the four steps to deal with the problem then abbreviate the review process. Anderson suggested substituting the word "approval " or "adoption" for "review" in the case of a SPA application which has a require- ment of a PUD and approval of precise plan. Harvey said there was a purpose in differentiating between the PUD and the SPA. Will there be situations where the SPA and PUD are on the same parcels. Richman responded that is unlikely. Harvey suggested in reviewing site specifics for SPA that those sites be considered an either or . Vann said some sites are designated mandatory PUD to kick in certain specific review 1)i RECORD OF PROCEEDINGS Regular Meeting Planning and Zoning Commission July 17, 1984 procedures, for example slope reduction. There may be a site with a mandatory PUD. Doremus said some paragraphs in the requirements of the SPA address this. He suggested cross referen- cing the slope reduction. Harvey suggested a list of sites with a statement of intent from this board as to what it wants in a location. He also suggested presenting some analysis of the sites, is the site a PUD or SPA, etc. Present the Commission' s intention as to what the SPA is to produce. Collins asked at what point does the Commission envision public input for this process. Vann answered at such time as the owner of the land submits a specific plan. This amendment procedure simply clarifies the review procedures for a plan when one is submitted. It also further clarifies what the Commission thinks the intent of the SPA process should be. - Collins argued it is important that the public should be informed that this procedure is happening and should be given the opportunity to be here. She questioned multiple ownership of the Rio Grande parcel . At the time the land is designated SPA can the property be split . Is there a legal problem in splitting and selling part of the property? Or is this after the fact? Vann responded that certain of those parcels are legally subdivided and have been owned individually for some time. The SPA was applied to the area in 1975 along with the general rezoning of the city irrespec- tive of the number of individual owners. A person who owns one of those parcels could sell the parcel . But the new owner could not develop without the adoption of a precise plan. The Commission requested a statement of intent and of analysis of the sites for the August 7th meeting. Roger Hunt moved to continue the public hearing to August 7, 1984 , and to direct planning to draft a resolution for the Commission' s review at that time; seconded by Pat Fallin. All in favor ; motion carried. (Lee Pardee leaves the chambers. ) ASPEN MOUNTAIN PUD UTE CITY PLACE EMPLOYEE HOUSING PROJECT Roger Hunt moved to adopt Resolution 3#84-8, "The Ute City Place Employee Housing Project for the Aspen Mountain PUD; " seconded by i,delton Anderson. All in favor; motion carried. Perry Harvey adjourned the meeting at 7: 25 p.m. Barbara Morris',-Deputy City Clerk nn