HomeMy WebLinkAboutcoa.lu.gm.Stage 3.625 E Main St.A77-96
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LAW OFFICES
HILL, EDWARDS, EDWARDS & ADKISON, L.L.c.
CENTENNIAL PLAZA BUILDING
502 MAIN STREET, SUITE 201
CARBONDALE, COLORADO 81623
TELEPHONE
(970) 963-3900
FACSIMILE
(970)963-3131
THOMAS C. HILL
JOSEPH E. EDWARDS, JR., P,C.
JOSEPH E. EDWARDS, III
THOMAS L. ADKISON
June 5, 1997
Suzanne Wolff
Community Development Department
130 South Galena
Aspen, CO 81611
RE: Stage 3 Penthouse - GMQS and Special Review
Dear Suzanne:
I am enclosing for inclusion in the packet given to the GMQS Commission members a letter
reciting the points that the Concept 600 Condominium Association would like to have the
members consider in opposition to the request for a GMQS allotment for the Stage 3 Penthouse
application.
In addition, I am also enclosing a separate letter to be included with the packet for the Aspen
Planning & Zoning Commission commenting and objecting to the special review requests of the
Stage 3 Penthouse which we would like to have the Planning & Zoning Commission members
consider in the event that the application does attain the minimum threshold GMQS scores and
allotment.
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Suzanne Wolff
June 5,1997
Page 2
Please place these letters in the respective packets for the Commission members' consideration.
If there have been any additional letters or memoranda provided by the applicant or the
Community Development Department to the Commission members in connection with this
rescoring, I would appreciate having you fax me copies of those as soon as possible.
Very truly yours,
H~tL, EDW~il: Q:~/1~:(' ADKISON, L.L.C.
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LAW OFFICES
HILL, EDWARDS, EDWARDS & ADKISON, L.L.c.
CENTENNIAL PLAZA BUILDING
502 MAIN STREET, SUITE 201
CARBONDALE, COLORADO 81623
TELEPHONE
(970) 963-3900
FACSIMILE
(970) 963.3131
THOMAS C. HILL
JQSEPHE. EDWARDS, JR., P,C.
JOSEPH E. EDWARDS, III
THOMAS L. ADKISON
June 5, 1997
Growth Management Commission
130 South Galena
Aspen, CO 81611
RE: Stage 3 Penthouses - GMQS Scoring
Dear Commission Members:
On behalf of the Concept 600 Condominium Association, I attended both of the appeal hearings
which ultimately determined to remand the above-referenced matter for your rescoring. At both
sessions, the Council members and at the second session also the Commissioners made it clear
they were not criticizing the points you scored or your reasons for the scores. The sole criticism
was based on the Code procedure which requires two scoring rounds, and you had only had one
scoring round. They felt the specified procedural steps should be followed, but specifically stated
they did not want you to consider the remand as any criticism of the points you awarded.
Obviously, the Concept 600 agrees with your initial score that the application fails to meet the
minimum required.
However, as an initial issue, before even considering the GMQS rescoring, this application fails
to comply with GMQS Section 26. 100.070 Minimum development standards. Subparagraph B
requires The proposed development shall comply with all applicable requirements of the City
Code. As noted on page 4 of Suzanne Wolff's December 17 Memorandum to you, The applicant
is unable to meet the off-street parking requirements for the commercial and residential
components of the project. Specifically, Section 26.32.010C requires If existing development is
expanded, additional off-street parking space shall be provided for that increment of the expansion
as if it is a separate development. Further, Section 26.32.020B requires Off-street parking for
any residential dwelling . . . shall be located on the same site as the principal use. The
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Growth Management Commission
June 5, 1997
Page 2
application is for four new residential units and no additional off-street parking space is being
provided. Even if by special review the affordable units were allowed without any parking, still,
by the Code, the applicant must add two new additional parking spaces for the free-market unit
and he has not done so. Instead, the applicant proposes to displace existing commercial employee
parking and "convert" it to residential parking. Such a displacementlconversionis not authorized
by special review or any other Code procedure.
Since this application fails to meet the GMQS Minimum development standards, it should be
denied without even proceeding to a rescoring under Section 26.100.080.
If this application is nevertheless allowed to proceed to rescoring, then Section 26.100.080B
establishes the standard for awarding points for each of the four scoring criteria or categories.
That Code section provides that A score of zero shall be awarded to projects that, although they
had the opportunity to comply with scoring criteria and had the ability to advance stated
community goals, will actually contribute nothing to implementation of the articulated vision and
may, in fact, move the community further away from its stated goals. A score of three indicates
that a project will move the community closer toward attainment of its stated visions and make a
positive contribution toward the implementation of articulated goals.
This application clearly fails to make a positive contribution or move the community closer toward
attainment of its stated visions regarding community character based on scoring criteria number
4, Maintaining design quality, historic compatibility and community character.
Subparagraph c provides that an application should ensure design compatibility with existing
buildings. . . in terms of massing, building materials, fenestration, other architectural features
and open space. While the adjacent buildings have a variety of shapes, openings, rooflines, and
open spaces, this application proposes a massive blocklike, square sided, flat roof, maximum
height building completely at odds with the adjacent designs. This design does not make a
positive contribution towards. . . the articulated goals.
The proposed building is completely out of scale and incompatible with adjacent buildings. The
existing building has two-story theater ceiling heights and already occupies a greater volume than
a building with normal floor-to-ceilingheights with a 1.5: 1 FAR ratio (which ratio would be the
maximum allowed floor area variance under a special review). Although the existing building
now has only one floor occupying 8,500 square feet on a 10,000 square foot lot, nevertheless, the
building (because it is a theater) currently is of a two-story height (and therefore a volume) that
would normally be occupied by a building (with normallO-foot ceilings) having floor area of
17,000 square feet. This application seeks to add additional volume by adding a third and fourth
floor. The result would be the volume, mass and bulk of a building (with normal ceiling heights)
with a floor area ratio of 2.35:1 or 23,500 square feet.
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Growth Management Commission
June 5, 1997
Page 3
The prior scoring shows that the GMQS Commission members agreed that the building was not
compatible with existing buildings in the vicinity in terms of scale, massing, fenestration and open
space and therefore did not "make a positive contribution" or "move the community close toward
attainment of its stated vision to maintain design quality, historic compatibility and community
character and, thus, is not entitled to a 3 point score under Section 26.l00.080C.4.c.
Very truly yours,
HILL, EDWARDS, EDWARDS & ADKISON, L.L.C.
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HILL, EDWARDS, EDWARDS & ADKISON, L.L.c.
LAW OFFICES
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mOMAS C. HILL
JOSEPH E. EDWARDS, JR., p.e.
JOSEPH E. EDWARDS, m
THOMAS L. ADKISON
CENTENNIAL PLAZA BUllDING
502 MAIN S1REET, SUIlE 20J
CARBONDALE, COLORADO 81623
TELEPHONE
(970) 963-3900
FACSIMILE
(970)963-3131
June 5, 1997
City of Aspen
Planning & Zoning Commission
130 South Galena
Aspen, CO 81611
RE: Stage 3 Penthouses - Special Review
Ladies and Gentlemen:
In the event that, upon rescoring, the Stage 3 application receives a GMQS allotment, then the
Concept 600 Condominium Association would comment on the Special Review issues as follows:
1. Section 26.64.040 (Exhibit A) provides No development subject to special review shall be
permitted unless . . . A.I. The mass, height, density, configuration. . . is compatible with
or enhances. . . surrounding land uses. . . .
This proposal fails to meet that standard. The application requests by special review an
increase in the allowable floor area of the project from a 1:1 ratio to a 1.5:1 ratio. This
application is extraordinary in that the building height and volume for the theater use is
equal to a two-story building. Thus, although floor area is 8,500 square feet on a 10,000
square foot lot, the building volume or mass already exceeds the volume which would be
occupied by a building (with normal ceiling heights) having a floor area of 15,000 square
feet or a 1.5:1 floor area ratio. The existing volume or mass of this building is equal to
a 17,000 square foot floor area building with normal ceiling heights. This application then
proposes to add additional volume and mass by adding a third and fourth story, resulting
in a building that has the volume, mass and bulk equal to a building (with normal ceiling
heights) having a floor area ratio of2.35:1 or 23,500 square feet. The proposed building
would be the tallest on the block and much more massive, blocklike and volUminous than
the adjacent buildings. Therefore, the proposed building is not compatible with the
adjacent buildings.
2. Section 26.64.040A.2. provides that where dimensional requirements are subject to special
review, the development shall QJ1]y. be approved if. . . the proposed development will not
have adverse impacts on surrounding uses . . . including . . . effects of shading, excess
traffic, availability of parking in the neighborhood or blocking of a designated view plane.
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City of Aspen
Planning & Zoning Commission
June 5, 1997
Page 2
This proposal would have adverse impacts on surrounding land uses. It creates additional
shading on Main Street, ranging from 16 to 23 feet of additional winter shading at noon
into the travel lanes on Main Street and more at other times (see Exhibit B). The proposal
will generate excess traffic and diminish the availability of parking. The maximum height
and immense bulk of this building will block the views from some of the Concept 600
units across the street. Such view blockage, although not of a designated view plane,
nevertheless evidences an adverse impact on the surrounding land uses.
3. Section 26.64.040B.1. provides that lWzenever the off-street parking requirements of a
proposed development are subject to establishment. . . by special review, the development
application shall only be approved if. . . 1. . . . the parking needs of the residents,
customers, guests and employees of the project have been met taking into account potential
uses. . . traffic generation of the project, the projected impacts onto the on-street parking
of the neighborhood. . . .
This proposal fails to meet that standard.
a. Additional parking- is mandatory. Section 26.32.01OC. (see Exhibit C) requires
that If existing development is expanded, additional off-street oarkin,? soace shall
be vrovided for that increment of the expansion as if it is separate development.
The requested expansion is four new residential units. Regardless of whether any
parking is required for the affordable units, Code Section 26.32.01OC. requires
that additional off-street parking shall be provided for the new free-market unit and
no such "additional off-street parking" is provided. Instead of "additional off-
street parking . . . for that increment," the application proposes to displace the
existing commercial employee parking and "convert" it to parking for the
residential use. However, there is simply no authority in the Code, by special
review or any other process, for the proposed displacement and conversion of the
existing parking. The Code, in unequivocal language, mandatorily requires that
"If existing development is expanded, additional off-street parking shall be
provided for 1l!;U increment." There is no provision in the Code that allows that
requirement to be waived, mitigated, converted or otherwise avoided. The Code
has clearly required that new expansions deal with their impacts and not further
exacerbate the parking problem.
b. Req.uired number of parking- spaces. For residential use, Section 26.28.150E.1.,
as amended by Ordinance No. 38-96 (see Exhibit D), requires two off-street spaces
per dwelling unit, except that for a studio or one bedroom, one space per dwelling
unit is required. This application is for a four-bedroom free-market unit, a three-
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City of Aspen
Planning & Zoning Commission
June 5, 1997
Page 3
bedroom affordable unit, a one-bedroom affordable unit, and a studio affordable
unit. Therefore, the Code specifies 6 parking spaces be provided for the proposed
residential uses. Aside from the fact the applicant is providing no additional
parking as discussed above, the application proposes to have only 4 ("converted")
spaces (2 short of those required for the new residential units). Although the Code
allows parking for affordable units to be determined by special review, the only
way 4 spaces could comply would be a determination that one or more affordable
residences have no parking. Failure to provide such parking will merely displace
it onto the already overcrowded adjacent streets.
The applicant proposes to substitute an additional cash-in-lieu payment for the two
missing on-site residential parking spaces, thereby acknowledging that those
residential units will in fact have parking demands. However, Section
26.28.150E.3. only allows payment in lieu for parking spaces for uses other than
residential.
c. Failure to have access to the alley or street. Section 26.32.020A. (see Exhibit C)
requires that Each varkinfJ space. . . shall have an unobstructed access to a street
or all({y. Ordinance No. 38-96 did llil1 amend that requirement. The proposal is
to have a "stacked" parking space which would not have "unobstructed access to
a street or alley." The stacked space requires the removal of two other vehicles
in order to get the stacked vehicle in and out of the interior space.
This proposal fails to add required additional parking for the expansion of existing development,
displaces existing parking for employees of the commercial operation without any authority for
such displacement, fails to provide the required number of spaces for off-street parking for
residential uses, fails to have unobstructed access to the alley, and has no parking for the
commercial use. The parking needs of the project have not been met, which is a prerequisite to
any special review approval under Section 26.64. 040B.1. Therefore, the special review requests
for a floor area increase and the extraordinary (and unauthorized) parking variance should be
denied.
Very truly yours,
HI~~{AS' EJ~~S /:)DKISON, L.L.C.
Jo~ward~;lr:\tV
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, 26.64.010
Sections:
26.64.010
26.64.020
26.64.030
26.64.040
26.64.050
26.64.060
26.64.070
26.64.080
26.64.090
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Chapter 26.64
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SPECIAL REVIEW
Purpose.
Authority.
Applicability.
Review standards for special review.
Proa!dure for special review approval.
Application.
Conditions.
Modification of requirements.
Amendment of development order.
26.64.010 Purpose.
The PllIpOse of special review is to ensure site specific review of dimensional requirements (Chapter
26.28), off-street parldng requirements (Chapters 26.28 and 26.32), and all reductions in the dimensions of
utility/trash seryice areas (Chapter 26.28), and any development not at grade within :fifteen (1:5) feet from
the top of slope in the Hallam Lake BluffESA (Chapter 26.68), in order to main1:ain the integrity of the city's
zone districts and the companbility of the PIOpOsed development with SUlTOunding land uses. (Ord. No. 71-1990,
~ 3: Code 1971, ~ 7-401)
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26.64.020 Authority.
The comm;<Sion, in accord3nce with the procedures, standards and limitations of this clJapter, shall approve,
approve with conditions, or disapprove a develOpment application for special review; afterrecommendalion
by the planning director. (Code 1971, ~ 7-402)
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26.64.030 Applicability.
Special review shall apply to all development in the Qty of Aspen designated for special review in OIapters
26.28 and 26.32. (Code 1971, ~ 7-403)
26.64;~ Review standards for special review.
No development SUbJect to"~& review shall be peInlitted unl~ the commissiQnmakes a determination
that the propOsed development compJies'With au 'stiuiaaras-ancire<;p1irements.set fo~. below.
4. Dimensional requiremeiltS:-Wl)Elf~vei-'tlie "ilJiii'fmslon3irequirements of a proposed development
are ~~!:.::. ~,~cial l'\l:Q.ew, the development app!.l~ation shalIoDly JJeapPIoYe.:l_i! the following conditions
are met ..
.J.:.. The .1ll,,~~,)~~glJ!,_d~!lsit:(. con:figt1E!!~m'l!!IlQ!!l).LQf open space, landscaping and setbacks of the
Proposed development ?J'e ~gned ,in a lD.3!lIlet..."Ihich is companble with or enhances the, character of surro~
land uses and is consistent with the purposes of the uncierlyiiig zone district 'u, -_ ___...
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26.64.040
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2. The app.lic3llt demollSll'ateS 1!lat tl1e Proposed develQPlI1ent will not have advexse impacrs on SllITOundlng
~ ~mitigate thoseimpactS.ind~ 5utnotl~l~ ~ th~-~tt@'O\~g'~~~~~i~~ility
of parking in the neighbo$>.Q.d or bj~l[.9L'L~~...Yi.~w plane.
--.- 3. Forthe reductionofrequi:red opensp3Ce in the CommerciafCore (CC) zone districtoniy. tl1e applicant-
demoIlStIateS that the provision of less than the required amount of open space on-site will be more consistent
with tl1e char.lcter of SUII'Ounding land uses than would be tl1e provision of open sp3Ce according to the standard.
As general guidelines, the applicant shall take into account the following. It may be appropriate to have
open space on the site when the building is located on a street comer, or the open space can be linked to
neighboring Pedestrian amenities. or the open space provides relief intended to maintain the prominence of
an adjacent historic landmarlc. or the open space is intended for a particular functional purpose. such as dining
orthe protection of an existing tree. Itmay be inappropriate to have open space on the site when other buildings
along the street front are built to the property line, especially along public malls, or when the open space is
configured in such a manner as to serve no public purpose.
When the cnmmi''lion detennines open space is inappropriate on the site. it may reduce or waive the
requirement if the applicant shall make a payment-in-lieu according to the following fonnula:
Appraised value of the unimproved land, multiplied by the pe=tage of the site required to be open
space which is to be developed. equals value of payment.
The appraised value of the property shall be detennined by the submission of a current: appraisal pert"onned
by a qualified professional real estate appraiser.
The payment-in-lIeu of open space shall be due and payable. at the time of issuance of a building permit.
All funds collected shall be lIansfened by the building inspectorto the 1in.nr.e director. for deposit in a separate
interest bearing account Monies in' the account shall be used solely for the purchase or development of land
for open space. pedestrian orrecreational purposes within or adjacent to the Colllll1ercial Core (CC) zone district
. Fees collected pllISUant to this section may be, returned to the then present owner of property for which
a fee was paid., induding any interest earned., if the fees have not been spent within seven (7) year.> from the
date fees were paid., unless the council shall have eartnaI:lred the funds for expenditure on a specific project,
in which case the council may extend the time periOd by up to three (3) more year.>. To obtain a refund., the
present ownermust submit a petition to the finance director within one (1) year following the end of the seventh
(7th) year from the date payment was recelved.
Forthe purpose of this section. payments collected shall be deemed spent on the basis of the first payment
in shall be the first payment out Any payment made for a project for which a building permit is cancelled,
due to noncolllll1encement of construction. may be refunded if a petition for refund is submitted to the finance
director within three (3) months of the date of the cancellation of the building permit. All petitions shall be
accompanied by a notarized., swom statement that the petitioner is the current owner of the property and by
a copy of the dated receipt issued for payment of the fee.
When the HPC approves the on-site relocation of an Historic Landm3Ik into required open space. such
that the amount of open space on-site is reduced below that required by this Code. the requirements of this
section shall be waived.
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26;64.040
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4. For the Residential/Multi-Family (R;MF) zone district only, increases in =mal floor area shall
only be permitted on sites subject to the requirements of OJapter 26.48, Replacement Housing Program. To
obtain the increase, the applicant shall demollStt3!e a IIIinlmum of two-thirds (2/3) of the additional floor area
allowed is used to increase the size of the affordable housing units beyond the minimum size standards of
the city's housing designee and the development Cllmplies with the standards of Section 26.64_040(A)(1) and
(2).
~. 01E~ requirements. Whenever the off~parldruz ~ ofa~~9~t
are subjeg,tQ..e$ljJJi$n~ ~ormitigation via a paYJIIentin lieu bl:~ ~~ew~the development aopliC3lion
shall onlY.be..aooro.Y!:!!df the folIowin~ conditions are met
LIn all zone districtS where the off-street parldng requirements are subject to establishment and/or
mitigation by specw review, the 3l?plicant shall demonstr.lte thatt!Je p;lI:k:inlm~.ofthe resideuts, custo;mers,
guests aI:1d empioY~_Qt~p!Ojj:ct1!.a~~.~t, ~ginto_~tpOtenti~~-OfthepMccl, the projected
ttaflic g~b!ll1tJile_.l?lP~ the l'n:j~~~onro ~~t_~ofthe nei~rllood., its proximity
to mass transit routes and the downtown area, ana any specal services, sucn as vans, provided for residents,
guests and employees.
In detemtining whether to accept the mitigation or whether to require that the parting be provided on-site,
the commission shall take into Cllnsideration the practical ability of the applicant to place parldng on-site,
whether the p3rldng needs of the development have been adequately met on-site and whether the city has
plans for a paddng facility which would better meet the needs of the development and the Cllmmunity than
would location of the pa:rldng on-site.
2. In all zone districts, where the off-street parldng requirement may be provided via a payment in
lieu, the applicant shall make a one-time only payment to the city, in the amount of fifteen thousand dol1a:rs
($15,000.00) per space. Approval of the payment-in-lieu shall be at the option of the Cllmmission. '
The payment-In-lieu of parting shall be due and payable at the time of issuance of a building permit
All fimds Cllllected shall be transferred by the building lnspectorto the :finance director, for deposit In a ~
interest bearing account Monies In the account shall be used solely for the Cllnstruction of a parlctng structure '
or similar new parldng facility within or adjacent to the zone districts to which this subsection applies.
Fees ClllIectect pursuant to this section may be returned to the then present owner of the property for
which a fee was paid, including any interest earned, if the fees have not been spent within seven m yeaIS
from the date fees were paid, unless the Clluncil shall have e3IIllarlced the funds for expenditure on a specific
project, in which case the council may extend the time periOd by up to three (3) moreyeaIS. To obtain a refund,
the present ownerlllUSt submit a petition to the finance director within one yearfollowing the end of the seventh
(7th) year from the date payment was received.
Forthe purpose of this section, payments Cllllected shall be deemed spent on the basis of the first payment
in shall be the first payment out Any payment made for a project for which a building peIIIlit is cancelled.
due to nonCllmmencement of construction, may be refunded if a petition for refund is submitted to the finance
director within three (3) months of the date of the cancellation of the building permit. All petitions shall be
accompanied by a notarized, swom' statement that the petitioner is the current owner of the property and by
a Cllpy of the dated receipt issued for payment of the fee.
In order to insure that the payment-in-lieu rate is fair and represents current cost levels, it shall be reviewed
within two (2) years of its effective date, and every two (2) years thereafter. Any necessary amendments to
this section shall be injtiated by the commission or the city council to address the results of the review.
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26.32.010
Chapter 26.32
OFF-STREET PARKING-
Sections:
26.32.010
26.32.020
26.32.030
General provisions.
Characteristics of off-street parking spaces and access to street or alley.
Required number of off-street parking spaces.
26.32_010 General provisions.
A. - General requirements. All development, except affordable housing, shall be provided with off-street
parking as provided in this chapter.
B. Requirements for affordable housing., The off-street parldng requirements for all affordable housing
shall be established by special review pursuant to Chapter 26.64.
C. Requirements for expansion of existing development No development shall reduce the number
of existing off-street parking spaces below the minimum number of existing spaces required herein for that
development, 1ll1Iess expressly exempted by this chapter. If existing development is expanded, additional off-street
parking space shall be rovided for that increment of the ex ansion as if it is se arate develo ment
D.' Off-street parking calculation. All requirements for off-street parking for residential dwellings and
lodges shall be calculated based on the number of bedrooms of the structure or use. All requirements for off-street
parking for all other uses shall be calculated based on the net leasable area of the structure or use.
E. Required number of spaces when fractional spaces computed. When any calculation of off-street
parking results in a required fractional space, said fractional space may be paid cash-in-lieu or an entire space ,
may be provided on the site. (Ord. No. 56-1994, ~ 9: COde 1971, ~ 5-301)
26.32.020 Characteristics of off-street parking spaces and access to street or alley.
A. General. Each off-street parking space shall consist of an open area measuring eight and one-half
(8 1/2) feet wide by eighteen (18) feet long and seven (7) feet high with a maximum slope of twelve (12)
percent in anyone direction. Each Parldng space, except those provided for detached residential dwellings
and duplex dwellings, shall have an unobstructed llfCess to a sJ!eet or alley. Off-street parldng provided for
multi-family dwellings which do not share a common paridng area may be exempted from the unobstructed
access requirement subject to Special Review pursuant to Chapter 26.64. No driveway shall exceed a maximum
slope of twelve (12) percent within twenty (20) feet of a property line bordering a public or private right-of-way.
Off-street parldng must be paved with all weather surfacing or be covered with gravel. For single family and
duplex development, a grass-ring type surface may be used. All }larking shall be maintained in a usable condition
at all times.
B. Location of off-street parldng. Off-street parking required for development in the Ser-
vice/Commercial/Industrial (SIC/f), Neighborhood Commercial (NC) and Office (0) Zone Districts shall not
be located in any adjacent residential zone district Off-street parking for any residential dwelling, hospital,
school or other use located in a residential zone district shall be located on the same site as the principal use.
Off-street parking for a boarding or rooming house, lodge, hotel or dormitory shall be located on the same
lot, or an adjacent lot under the same ownership as the lot occupied by the principal use
"'
z EXHIBIT
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531 (Aspen -'/7"1
. .26.28.150
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Lot Size (Square Feet)
Allowable Square Feet
9,000-15.000
4.080 square feet of floor area. plus 6 square feet of floor area
for each additional 100 square feet in lot area. up to a maximum
of 4,440 square feet of floor area.
15,000-50,000
4.440 square feet of floor area. plus 5 square feet of floor area
for each additional 100 square fe,et in lot area. up to a maximum
of 6.190 square feet of floor area.
50,~
6.190 square feet of floor area. plus 3 square feet of floor area
for each additional 100 square feet in lot area.
All uses other than detached residential and duplex dwellings: 1:1; however. the 1:1 external floor area
ratio may be increased toU:1 by special review PUISWlllt to Chapter 26.64.
11. Internal floor area ratio: 1:1, increasable to 1.5:1; however, if the external floor area ratio is increased
by special teview ptIISUant to Chapter 26.64, then sixty (60) percent of the additional floor area must be approved
for residential1!Se restricted to affoniable housing.
E. Off-strP.P.t~!l; reauireu!'WL The fOllowing off-street parking spaces shall be prOvided for each
use in the Commercial (C-l) zone district, subject to the provisions of Chapter 26.32. ) .
1. AIl residential.u~~~m ( p, rt'IENi:>Ei'l:> _ ~e. s;" EX G
2. Lodge uses: N/A
3. ~ Jl nt","~u.'lS: 1.5 sPa~11111Y1 sQUare feet of net T...~.hl.. .".. wf\jrh ~,"'" mmrirl"ff 10. . nat-ment
-~ pumI3Ilt to' Clapter 26.64. (Ord. No. 47-1988. ~~ 2, 5.15; Ord. No. 7-1989, ~ 1; ani No. 17-1989"
~ 2; Ord. No. 56-1994, ~ 7; Ord. No. 22- 1995, ~ 6: Code 1971, ~ 5-210)
26.28.1 ServicelCommercia1/IndustriaJ (S/CIf).
A. The purpose of the ServiCelCommen:ia!lIndustrial (S/Cff) zone district' allow for the
use of land for the anon or development of limited commercial and industrial which do not require
or genmre high CUStomer volumes. and to pemrlt CUStomary .""t'SSOry uses' uding residential dwelling
units.
B. Pennitted uses. The follo uses are pennitted as of ria in the Service/Commen:iallIndustrial
(S/Cff) zone district
1. Limited commen:iaJand industrial us . I . g the following and similar uses: Vehicle sales:
appliance and equipment rental, storage and repair; m' e repair; automobile washing facilities: electri'ja!
and plumbing service shops; commercial bak , computer ct sales and services; limited industIial uses
including: Builder's supply, industri~ . g plant and laundIy, . cation and repair ofbui1ding materials
and components, lumberyards. man" ture and repair of electronics or spo . a goods, printing and publishing
plants. telecommunications 50 , typesetting, warehousing and storage, sho industry and similar uses,
artists' studios with optio accessory dwellings. All of these uses are permitted proVl they do not create
unusual traffic hazard oise, dust. fumes. odors, smoke, vapor, vibration. glare or indus1n aste disposal
problems, and provided that no permitted uses pripcipally sell dally or frequently bought items to the general
public;
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(kp<n 10195)
512
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'" EXHIBIT
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t>Rr\<.T' tSJf" 012~INANCe
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TD.e following section within each of the following zone districts shall be repealed and replaced
'-" with the followiIIg italicized text: R-6: 2628.050(E)(1), R-15: 26.28.060(E)(1), R-l5A;
2628.070(E)(1), R-30: 26.28.080(E)(1), RI.MF: 2628.090(E)(1), R/MFA; 2628.l00(E)(1),
MHP: 26.28.120(E)(1),.RR; 2628.l30(E)(1), CC: 2628.140(E)(1), Cool: 26.13.1SQ(E)(1), SCI:
26.28.160(E)(1), NC: 26.28.l70(E)(1), 0: 2628.l80(E)(1), LlTR: 26.28.190(E)(I)
C: 26.13.220(E)(1).
1. For singie-family and duple::: residential use and multi".lamil'{ use:jNoGJ,il.
S'fJ~ces/:el1in[ um,t. Fewer spaces may be provided by special ~e;iew pursuant to Olaprer
.1:).'O'470r 'ltisronc-randmarks onLy, and fewer spacZ$ may be provraed puTS1Jallt to Chapter 26. 60. ,
for ~ccZ$sory Dwelling U~i~~ onLy. O~e (11 s7}a~e1dwelli7lf(u:!...:.!!..!I!..T!P"ed !!!.~~u7lit!seither a
S=o or 07le-bedroom unit. ,
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SedioD 3: Section 26.28.080 of Chapter 26 of the Aspen Muoici1:lal Code, Conditional USe:! in the
. ..
R-30 Zone District is amended to add the following 1~"1lage:
. 26.28.080(C) Conditional Uses.
7. Accessory Dwelling Units meeting the provisions ojSection 26.040.090.
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Seerion 4: Section 26.32,.020 of the A.spen Municipal Code, Characteristics of Off-Screet
P:l!'king Spaces and Access to a Street or Alley, is amended in the following fashion, with text in
italics, being added to the e:cisting text:
-
26.32.020 Characteristics of off-street parking spaces and acce:!s to street or alley.
A. GeneraL Each off-street parking spa~ shall consist of an open area measuring ,
eight and one-half (8 112) t=t wide by eighreen (18) feet long and seven (7) feet high with a
maximum slooe of twelve (12) percent in anyone direction.E..?BJ"-Pai:ki:J.g space, except those --;:-,
provided for detached residential dwellings ~ duplex dwenings,sl12.ghaV'7 an Ull.obstl:uCtecl
&:cess to a street or alley. Off-meet paddng provided (or.multi-fa.rn.ily dWellings wDich do.not /
'share a co=on par:k:L.'"1g area may be ~empted from ,the unobs1:l:'1.1ctci.access requirement
subject to Special Review PUI3Uant to Chapter 26.64 Off Street parking provided jar multi-
family dwellings which do not share a common parking area may be e:::empred from the
'unobstructed access requirement subject to speciai review purSUant to Section 26.64. No ,
driveway shall exceed a maximum slope of twelve (12) percent within twenty (20) feet of a
property line bordering a public or private right-of-way. Off-street parking must be paved with
all wearher surfad.ng or be covered with gravel. For singie family and duplex development. a
grass-ring type surface may be used. All par.king shall. be maintained in a usable. condition at all '
times.
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.. EXHIBIT
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MEMORANDUM
TO:
Aspen Planning and Zoning Commission
FROM:
Rhonda Harris, Administrative Assistant
RE:
, Upcoming Agendas
DATE:
June 4, 1997
6/17 - Planning & Zoning (4:30)
Discussion Item: AACP
303 S. Cleveland, Landmark (AA)
Parks/Golf Maintenance Facility Special Review/Conditional UselRezoninglFinal PUD (CB)
6/17 - Growth Management Commission (5:00) (Council Chambers)
Parks/Golf Maintenance Facility Exemption for Affordable Housing & Essential Public Facilities
(CB)
6/24 - Work~ession with City Council
7/1 - Planning & Zoning
Historic Landmark Code Amendment (AA)
303 S. Cleveland - Landmark (AA)
Marten Conditional Use for ADU & Residential Design Waiver (CB)
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OATES, HUGHES, KNEZEVICH &
LAW OFFICES OF
RECEIVED
MAY 2 ~ 1997
GARDENSWARTZ '
ASPEIIi! PITKIN
COMMUNITY DEVELOPMENT
PROFESSIONA'L CORPORATION
THIRD FLOOR, ASPEN PLAZA BurLDING
533 E~ST HOPKINS AVENUE
ASPEN, COLORADO 81611
LEONARO M. OATES
RICHARD A. KNEZEVICH
TED, D. GAROENSWARTZ
OAVID B. KELLY
RICH ORMAN
May 22, 1997
TELEPHONE (970) 920-1700
FACSIMILE; (970) 920-1 12 I
e~mail ohkg@rof.net
OF COUNSEL'
ROBERT W. HUGHES
JOHN THOMAS KELLY
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John Worcester, Esq.
City Attorney
City of Aspen
130 South Galena Street
Aspen, CO 81611
HAND DELIVERED
Re: Carisc11 / Stage Three Growth Mallagemellt Applicatioll
Dear J"im:
In connection with the above matter which has been remanded by the City Council of the City of
Aspen and Pitkin County Board of County Com:nissioners to the joint City of Aspen / Pitkin County Growth
Management Commission for re-scoring, we would like to ,,,e if a procedure could be arrived at whereby
the members of the joint Planning Commission can be instucted prior to the scoring as to what should and
should not be considered. Specifically by way of exampi" and not limitation, we believe that issues relating
to views from adjacent properties are not proper matters for consideration by the Joint Commission,
evidence of such issues which are inappropriate for consideration should not be presented to the joint
commission.
Secondly, we feel that it would be helpful if there was a better understanding by the Joint
Commission of the ability on the part of the City of Aspen's Planning and Zoning Commission, and City
Council alone, to deal with issues relating to development of the property following the grant of a growth
management quota allotment. Hopefully that sort of schooHng could be structured in a manner so that the
Joint Commission does not, need to consider issues which will only be dealt with later by the City Planning
and Zoning Commission in regards to the additional approvals necessary for the development of the
property, such as, again by way of example, issues relating to parking and floor area bonuses. We think this
is extremely important because the matters which the Count), Planning and Zoning Commission deals with,
can and often are, vastly different than those which the City Planning and Zoning Commission deals with
in terms of these types of issues.
rl
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OATES, HUGHES, KNEZEVICH & GARDENSWARTZ, P.C.
John Worcester, Esq.
City Attorney
May 22, 1997
Page 2
If you would like to explore further what I a,"!l trying to get at, I would be more than happy to discuss
it with you. We think that some direction in terms of ground rules and procedures which limit the scope of
the hearing are important and appropriate in these matters. We do understand that no one has much
experience in terms of these matters being considered by the Joint Commission and that therefore some
supplementation of the wording of the ordinance is necessary as a guiding tool for the Joint Commission.
Otherwise, as a lay board, it would seem that the Joint Commission can get very confused as to what they
are approving and what they are to consider in determining whether or not they will give an approval or grant
an allotment. The interjection of extraneous issues only unnecessarily complicates the process in our view.
Thank you for your consideration.
Very truly yours,
OATES, HUGHES, KNEZEVICH
& GARDENSWARTZ, P.C.
By'~~J;,L)
Leonard M. Oates
LMO/amc
cc: Stan Clauson
Alan Richman
C:\OAT AlClients\Carisct!\llr.Hoefer0424.wpd
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MEMORANDUM
TOi
Aspen City Council
Board of County Commissioners
THRU:
Amy Margerum, City Manager
Tom Newland, Assistant County Manager
THRU:
Stan Clauson, City Community Development Director
Cindy Houben, County Community Development Director
FROM:
Suzanne Wolff, Planner
RE:
Stage 3 Penthouses - Appeal of 1996 Metro Area Residential GMQS Scoring
DATE:
March II, 1997
SUMMARY: George Carisch, represented by Alan Richman, has submitted an appeal of the Growth
Management Commission's scoring of the Stage 3 Penthouses application.' The notice of appeal requests
that the joint City Council/Board of County Commissioners overturn the Growth Management
Commission's scoring based on a denial of due process. The notice of appeal is attached as Exhibit A,
and was received by the Community Development Director within the required 14 day period after the
Council's decision.
On February 10, Council sustained the initial appeal based on a denial of due process, which gave the
applicant the opportunity to submit this appeal to the joint CouncillBoard. '
BACKGROUND: The applicant requested one metro area residential GMQS allotment to develop one
free market dwelling unit above the Stage 3 Theaters. No other applications were received for the 1996
competition. A copy of the application is included as Exhibit F.
At the public hearing before the Growth Management Commission on January 14, 1997, staff presented
recommended scores to the Growth Management Commission, and recommended that the Commission
adopt these scores. Although adoption of staff s scoring is not addressed in the procedures in the Code,
staff has presented this option in the past when there was no competition for allocations. Staff awarded
the project a total score of 12: the application met the minimum threshold score of three points for each
of the four growth management scoring criteria. The staff memo and score sheet are attached as Exhibit
B.
After discussion of the criteria and staff s recommended scores, the Commission members determined
that they did not agree with staffs scoring. The Commission memhers then scored the application
individually and staff calculated final average scores for the four criteria, The tally sheet of the
Commission's scores is attached as Exhibit C. The application exceeded the minimum threshold score of
three in three of the scoring categories, but did not receive the minimum threshold score of three in the
"Maintaining design quality, historic compatibility and community character" category. Section
26.100.060(C)(5) of the Aspen Municipal Code states, "No growth management allocation shall be
awarded to projects that do not receive a final average score of at least three points for each of the growth
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management scoring criteria", therefore, the allocation was denied. The minutes from the Growth
Management Commission meeting on January 14,1997, are attached as Exhibit D.
AUTHORITY TO REVIEW APPEAL: Section 26.l00.060(D)(3) of the Aspen Municipal Code
provides in part,
In reviewing an appeal, the joint City Council/Board of County Commissioners shall act on the
basis of the record established by the Growth Management Commission. The appellant shall
have the burden of persuasion in the appeal.
The joint City Council/Board of County Commissioners shall affirm the scoring of the
Growth Management Commission unless it determines that there was a denial of due process or
abuse of discretion by the Growth Management Commission in its scoring, in which case the
joint City Council/Board of County Commissioners shall take such action as it deems necessary
to remedy the Growth Management Commission's action. Remedies available to the joint City
Council/Board of County Commissioners shall include, but not be limited to amending the
number of points awarded or remanding the development application to the Growth
Management Commission for rescoring.
The decision of the joint City Council/Board of County Commissioners shall constitute
the final administrative order on the matter.
BASIS OF APPEAL: The basis of the applicant's appeal is that the Growth Management Commission
did not complete all of the steps necessary to score a growth management application, as specified in the
Code, and that failure to complete these steps "denied the applicant the opportunity to have the
application fully and properly considered by the Commission and resulted in scoring errors by the
members." Please refer to the attached notice of appeal (Exhibit A) for a more specific discussion of the
basis for the appeal.
The scoring procedures as specified in Section 26.l00.060(C)(3) of the Code are provided below for
reference.
a. Each Growth Management Commission member shallassign a whole number score (not
a fractional number) to the project.
b. Following the initial scoring, commission members shall be free to discuss individual
scores and to offer justification for such scores.
c. Following the close of Growth Management Commission discussions regarding initial
scoring, a final scoring round will be held, during which each Growth Management
Commission member shall again identify the number of points, expressed as whole
numbers, assigned to the project. Growth Management Commission members shall be
free to revise the number of points awarded to a project between the preliminary and'
final scoring rounds,
d After the close of the final scoring round, a project's final average score shall be
calculated by (1) totaling the commissioners' individual scores and (2) dividing that total
by a number equal to the number of commissioners who participated in the final scoring
round Final average project scores shall be calculated for each of the four growth
management scoring criteria of Sections 26.100. 080(C)(1), 26. JOO. 080(C)(2),
26, 100. 080(C)(3) and 26. 100. 080(C)(4), and a cumulative score shall be calculatedfor
the criteria as a whole. The final average cumulative score calculated pursuant to this
provision shall constitute the projects final score.
e. Projects shall be ranked in order of their final average scores.
2
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f The project ran kings and any recommendations for the award of optional maximum
allotments shall beforwarded to the City Council and Board of County Commissioners.
The Code specifies that a preliminary and a final scoring round shall be held. The Commission only held
one scoring round on this application. Extensive discussion of staff's recommended scores occurred
prior to the Commission's scoring, but no discussion occurred following the scoring. Although the Code
does not require the Commission members to discuss or justify their scores between scoring rounds, a
second scoring round provides the members an opportunity to reconsider their scores. The applicant in
this case was denied the possibility of revisions since the procedure in the Code was not followed.
A letter from Joe Edwards, representing the Concept 600 Condominium Association, asserts that due
process was not denied and that the scoring should be affirmed by the Council/Board. The letter is
attached as Exhibit E.
ALTERNATIVE ACTIONS: The CouncillBoard has the following options to respond to the appeal, as
provided in Section 26.100.060(D)(3) of the Code:
I. The CouncillBoard may affirm the scoring of the Growth Management Commission. This action
shall constitute the final administrative order on the matter.
2. The CouncillBoard may overturn the Growth Management Commission's scoring and take such
action as it deems necessary to remedy the Commission's action. Remedies available include,
but are not limited to, amending the number of points awarded or remanding the application back
to the Commission for rescoring.
The applicant requests that the Council/Board amend the number of points awarded, or if the preferred
remedy is to remand the application to the Growth Management Commission for rescoring, that the
Council/Board consider remanding the application to the Aspen Planning and Zoning Commission only,
which would sit as the Growth Management Commission for this application only. The applicant's
justification for this request is included in the notice of appeal (Exhibit A).
RECOMMENDED ACTION: Staff agrees with the applicant that the prescribed procedure was not
followed, and, therefore, that the scoring process may have been flawed. Staff also recognizes that this
"denial of process", though "unfair", may not legally be considered a "denial of due process". However,
in order to uphold the importance of the scoring procedure as established in the Code, staff recommends
that CouncillBoard overturn the Growth Management Commission's scoring and remand the application
to the joint Growth Management Commission for rescoring.
If the application is remanded, staff requests direction from the Council/Board as to how the Growth
Management Commission should proceed with the rescoring. Specifically, staff would suggest that the
full scoring process should occur, whereby staff and the applicant would make presentations to the
Commission, and the Commission would complete two scoring rounds. This would allow the
Commission to proceed without trying to reassemble the exact members who were present at the original
scoring of the application.
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Exhibits:
A. Notice of Appeal
B. Staff memo and score sheet dated January 14,1997
C. Growth Management Commission Tally Sheet
D. Growth Management Commission Minutes - January 14, 1997
E. Letter from Joe Edwards dated February 5, 1997
F. Letter from Leonard Oates dated February 7, 1997
Attachments
I. Application, including supplemental information submitted 11/21/9 and 1/14/97.
2. Letter from Joe Edwards dated February 19, 1997
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LAW OFFICES
HILL, EDWARDS, EDWARDS & ADKISON, L.L.C.
mOMAS c. Hll..L
JOSEPH E. EOW ARDS, JR., P.e.
JOSEPH E. EOW ARDS, III
THOMAS L. ADKISON
CENTENNIAL PLAZA BUTI..DING
502 MAIN STREET, SUITE 201
CARBONDALE, COLORADO 81623
TELEPHONE
(970)963-3900
FACSIMILE
(970)963.3131
February 19, 1997
Combined GMQS Appeal Committee
Board of County Commissioners, Pitkin County
City Council, City of Aspen
clo Stan Clauson and Suzanne Wolf
Community Development Department
130 South Galena
Aspen, CO 81611
Re: Appeal of Stage 3 Theaters Residential GMQS Scoring
Dear Committee Members,
We represent the Concept 600 Condominium Association which opposes the application to add
four living units to the Stage 3 Theaters.
"DUE PROCESS" WAS NOT DENIED.
The application did not receive the minimum GMQS score. Applicant appealed, asserting he was
denied "due process" in that the GMQS Commission did not have both an "initial scoring" and
a "final scoring round" as contemplated by Section 26.100.060C.3. (see Exhibit A). While the
GMQS Commission did not, conduct two separate scoring rounds, a full discussion occurred
between the Commission members regarding appropriate scores and the justification for such
scores, which was the purpose behind having two scoring rounds. That discussion was
precipitated by a motion to adopt the scores recommended by the planning staff, which motion
created the same discussion environment that an "initial scoring" round would create. In fact, the
discussion was so vigorous, the Clerk was unable to transcribe it.
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Combined GMQS Appeal Committee
February 19,1997
Page 2
The standard by which you are to review this appeal is in Section26.100.060D.3. (see Exhibit B).
That standard is "The joint City Council/Board of County Commissioners shall affirm the scoring
of the GMQS Commission unless it determines there was a denial of due process or abuse of
discretion by the GMQS Commission in its scoring...." The standard does not say that the score
should be overturned if the GMQS Commission omits any steps, but only if "there was a dc:I1ial
of due process." The words "due process" have an established meaning in law. In Colorado, "In
orderto establish a procedural due process violation, a plaintiff must prove that he or she was
deprived of an opportunity. . . granted at a meaningful time and in a meaningful manner for a
hearing appropriate to the nature of the case." Sundheim v. BOCC of Douglas County, 904 P.2d
1337, 1345 (Colo. App. 1995) (see Exhibit C). The City Attorney advised Council at the last
hearing that no court wQuld find a violation of "due process" under the facts of this case. The
irony of this appeal is that the Council criticized the GMQS Commission for not following the
exact scoring procedure described in the Code, yet the CounciJ itself then failed to follow the
appeal review standard described in the Code. That standard again is that the score is to be
affIrmed unless there was a "denial of due process." As defmed in Colorado law, there was no
"denial of due process" in this case.
Colorado law also requires that objections not made in the initial hearing are deemed waived and
will not be considered for the first time on appeal. ZaveJa v, Denver, 759 P.2d 664, 668 (Colo.
1988), (see Exhibit D). The applicant did not ask for a second scoring round nor object to the
termination of the hearing after the scoring and, therefore, cannot now raise that objection.
RECONSIDERATION OF SCORING
If the Appeal Committee finds (in spite of such review standard) that "due process" was violated,
then this Appeal Committee may remand the matter to the GMQS Commission (which we suggest
would be preferable) or this Committee may itself amend the number of points awarded.
However, should this Committee itself undertake scoring, then please consider the following
comments .
The record illustrates that the concern expressed by the majority of the GMQS Commission and
the bulk of public Comments related to the excessive scale, massing, the blocklike architecture,
lack of fenestration and lack of open space of the proposed building as compared to the other
buildings in the block. As mentioned in the staff memo, this building already occupies a greater
volume than a building with a 1.5: 1 FAR ratio with normal ceiling heights (which would be the
maximum allowed variance under a special review). Specifically, this is a 10,000 square foot lot
and, although the building now has only one floor occupying 8,500 square feet, nevertheless, the
building (because it is a theater) currently is of a two-story height (and therefore a volume) that
would normally be occupied by a two-story building with a floor area of 17,000 square feet.
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Combined GMQS Appeal Committee
February 19, 1997
Page 3
Therefore, the massing, scale and the visual impacts of the existing building already exceed what
could be allowed for a building (with normal ceiling heights), even under special review. As the
record shows, this application seeks to add additional volume and mass by adding a third and
fourth floor, resulting in a building having the volume, mass and bulk of a building (with normal
ceiling heights) with a floor area ratio of 2.35:1 or 23,500 square feet. The resulting sCQring
shows that the Commission members agreed that the building was not compatible with existing
buildings in the vicinity in terms of scale, massing, fenestration and open space and therefore did
not comply with the standard of Section 26.100.080C.4.c.
For the foregoing reasons, the Concept 600 Condominium Association requests that the joint
committee find that "due.process" was not denied and the scoring by the GMQS Commission was
appropriate and should be reinstated.
Very truly yours,
HILL, EDWARDS, EDWARDS & ADKISON, L.L.C.
"~h ~
J~Edwards, Jr.
JE2:caw
Attachments
cc: City Attorney
concept\lcirycou.03
26.100.060
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3. HPC conceptual approval. In the event that historic preservation committee (HPC) approval is needed
for any proposed project, the committee's conceptual approval must be secured prior to submitting an application
for a development allotment. The applicant shall be required to secure final approval of the project from the
committee prior to submission of an application for a building permit.
4. Consolidated applications. Development applications for any development activity that is consolidated
with a development application for allotment shall only receive final approval to the extent to which the project
obtains necessary development allotments.
B. Allocation procedures for exempt development.
1. Application deadline. Applications are taken and granted allocations on a first-come-first-served
basis beginning on June 1 of each year. An application for an exemption or for a development allotment for
exempt development may be submitted to the Community Development Director at any time of the year.
2. Application contents. An application for development allotments for exempt development shallbe
submitted in a form established by the Community Development Director and made available to the public.
3. Procedure. A development application for a development allotment for exempt development shall
be reviewed pursuant to Common Procedures, Chapter 26.52. After review for completeness and review and
approval in accordance with Section 26.100.050, development allotments shall be allocated on a:first-come-:first-
served basis,provided that all applications submitted on the same day shall be construed to have been submitted
at the same time. In the event that the number of development applications submitted on the same day exceeds
the number of development allotments available, a random drawing shall be held to determine the order in
which allQcations are granted. Those applications that do not receive a development allotment in the random
drawing shall remain valid until the following 'May 31. In the event that additional allocations become available
on or before May 31, development allotments shall be allocated on the basis of the original random drawing.
If allotments are available after awarding allotments to those applications included in the random drawing,
they shall again be made available to applications on a first-come- first-served basis, based on the date of submittal.
If development allotments have not been allocated to an application by May 31, that application shall expire
and be ineligible for allocation until a new application is submitted.
C. Allocation procedures for non-exempt development.
1. Application deadline. A development application for a development allotment for non-exempt
development shall be submitted to the Community Development Director pursuant to Common Procedures,
Chapter 26.52: on or before the following dates:
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Land UseJDevelopment Type
Submission Date
Tourist Accommodations
Residential
August 1
November I
2. Application contents. An application for development allotments fornon-exempt development shall
be submitted in a form established by the Community Development Director and made available to the public.
3. Ranking procedures and standards. A development application for a development allotment fornon-
exempt development shall be reviewed pursuant to Common Procedures, Chapter 26.52. After review for
completeness and a recommendation for scoring by the Community Development Director, such applications
shall be reviewed and recommended for the award of development allotments in accordance with the procedures
and standards of this section. An applicant shall only amend an incomplete application to make technical corrections
or clarifications, and the application shall be scored by the Growth Management Commission.
(Asp",Sfi6)
674
" EXHIBIT
.
~ A
~
~
~
f',
A
26.100.060
a.. Each Growth Management Commission member shall assign a whole number score (not a fractional
number) to the project
b. Following the initial scoring, commission members shall be free to discnss individual scores and
to offer justification for such scores.
c. Followin the close of Growth Mana ement Commission discussions reC'arding initial scoring, a
final scoring round will be held, during which each Growth Management Commission member shall again
identity the number of points, expressed as whole numbers, assigned to the project Growth Management
Commission members shall be free to revise the number of points awarded to a project between the preliminary
and final scoring rounds.
d. After the close of the final scoring round,a project's final average Score shall be calculated by (1)
totaling the commissioners' individual scores and (2) dividing that total by a number equal to the-number
of commissioners who participated in the final scoring round. Final average project scores shall be calculated
for each of the four growth management scoring criteria of Sections 26.100.080(C)(1), 26.100.080(C)(2),
26.100.080(C)(3) and 26.100.080(C)(4), and a =ulative score shall be calculated for the criteria as a whole.
The final average cumulative score calculated pursuant to this provision shall constirote the project's final
score.
e. Projects shall ~ ranked in order of their final average scores.
f. The project rankings and any recommendations for the award of optional maximum allotments shall
be forwarded to the City Council and Board of County COmmissioners.
4. Actions required for approval of allotments. Since the Growth Management Quota System applies
throughout the Aspen Metro area, no growth management allocation shall be awarded unless the City Council
and Board of County Commissioners both accept the recommendation of the Growth Management Commission.
e The procedures governing challenges and appeals are set out in Sections 26.100.060(D) and (E).
~~ 5. Minimum scoring thresholds required for allocation. No growth management allocation shall be
awarded to projects that do not receive a final average score of at least three points for each of the growth
management scoring criteria of Sections 26.100.080(C)(I), 26.100.080(C)(2), 26.100.080(C)(3) and
26.100.080(C)(4).
6. Identical point totals. In the event that two or more non-exempt development app!~cations receive
identical point totals, and one or more must be approved to the exclusion of others because insufficient allotments
are available, the Growth Management Commission shall reconsider the tying projects and apply the following
criteria, in sequence, until the tie is broken:
a.. The project that received the higher point total in the greatest number of scoring categories shall
be considered first in eligibility for an allotment
b. The project that was awarded the greatest number of points for "revita1izing the permanent community"
shall be considered first in eligibility for an allotment
c. The project that was awarded the greatest number of points for "providing transponation innovations"
shall be considered first in eligibility for an allotment
d. The project that was awarded the greatest number of points for "promoting environmentally sustainable
development" shall be considered first in eligibility for an allotment
D. Challenges and appeals made by aggrieved parties.
1. Upon receipt of the Growth Management Commission's r:mking of development applications, the
City COllllCil shall consider any appeals made by persons aggrieved by the scoring of the Growth Management
Commission. The City Council's review of an appeal shall be limited to determining whether there was a
denial of due process or abuse of.discretion by the Growth Management Commission in its scoring. Any appeals
,/""-
,
675
*
26.100.060
t"""i
~
must be filed within founeen (14) days of the Growth Management Commission's public hearing by filing
a notice of appeal with the Community Development Director.
2. In reviewing an appeal, the City Council shall consider the development applications based on the
record established by the Growth Management COmmission. The City Council shall affinn the scoring of the
Growth Management Commission unless it detennlnes that there was a denial of due proCess or abuse of discretion
by the Growth Management Commission in its scoring. in which case the City Council shall ovenum the
Growth Management Commission's scoring of the application. If the City Council affums the scoring of the
Growth Management Commission, that action shall constitute the final administrative order on the matter.
If the City Council ovenums the Growth Management Commission's scoring, the appellant may file an appeal
of the Growth Management Commission's scoring with the jOint City CounciJlBOard of County Commissioners
as provided in Section 26.100.050(D)(3).
3. An appeal to the joint City CouncillBoard of County Commissioners shall be filed within founeen
(14) days of the City Council's decision on the matter by filing a notice of appeal with the Community
Development Director. A joint City Council/County COmmissioners meeting shall be called within thirty (30)
days of the date that the appeal is filed. In reviewing an appeal, the joint City CouncillBoard of County
Commissioners shall act on the basis of the record established by the Growth Management COmmission. The
appellant shall have the burden of persuasion in the appeal.
The . oint, City Council/BOard of Co Commissioners shalJ affirm the scorin of the Growth Management
Commission uniess it determines that there was a denial of due process or abuse of discretion by the Growth
Management Commission in its scoring, in which case the jOint City CounciI;Board of County Commissioners
shall take such action as it deems ne<::~ssary to remedy the Growth Management CoIll1t1ission' s action. Remedies
available to the joint City Council/BOard of County Commissioners shalJ include, but not be limited to amending
the number of points awarded or remanding the development application to the Growth Management COmmission
for reSCOring.
A quorum of the jOint City COuncil/BOard of County Commissioners shall be comprised of at least three
members of the Aspen City Council and at least three members of the Pitkin County BOard of County
Commissioners. No meeting of the joint City Council/BOard of County Commissioners shall be called to order
without a quorum and no meeting at which less than a quorum is present shall act on an appeal other than
to continue itto a date cenain. All actions shall require the concurring vote of a simple majority of the mernbers
then present and voting. A tie vote by the joint City Council/BOard of County Co~ssioners shall be deemed
a decision to uphold the Growth Management COmmission's scoring.
The decision of the joint City Council!BOard of County COmmissioners shall constitute the final administrative
order on the matter.
E. Challenges and appeals made by City Council or BOard of County Commissioners.
1. An appeal to the jOint City Council/Board of County Commissioners may be filed by either the
City Council or Board of County Commissioners at any time by filing a notice of appeal with the Community
Development Director. In the event of such an appeal, a joint City Council/County Commissioners meeting
shall be called within thirty (30) days of the date that the appeal is filed. In reviewing an appeal, the jOint
City CounciJlBOard of County Commissioners shall act on the basis of the record established by the Growth
Management Commission. The appellant shall have the burden of persuasion in the appeal.
The joint City Council/Board of County Commissioners shall affirm the scoring of the Growth Management
Commission unless it determines that there was a denial of due process or abuse of discretion by the Growth
Management Commission in its scoring, in which case the joint City Council/Board of County Commissioners
shall take such action as it deems necessary to remedy the Growth Management Commission's action. Remedies
available to the joint City Council/Board of County COmmissioners shall include, but not be limited to amending
1"*
o
~
676 z EXHIBIT
j B i
~
%
~
j ,he aids to statutory
i in * 2--4--203, C.RS.
r. conclude that the
:ntent with regard to
"i ',vas for the ALJ to
j 8-42-107(8) those
, 3:r:gie industrial acci-
nirment is non-sched_
_I
,ooes not explicitly di-
be divided between
,duled benefits when a
o $cheduled and non-
os. The Act is silent
be followed in such a
,ct contains language
',?rence that injuries
:od non-scheduled im-
sidered jointly under
07(7)(a), C.RS. (1994
; when an employee
"juries coming under
lities specified in sub-
chis section shall be
1y, there is no provi-
of disabilities which
scheduled.
between scheduled
irments is that they
)rocedural rules, par-
jure set out in * 8-
nployed in cases of
. As the concepts,
odures are entirely
of one section is to
:Jusion of the other.
be no need for the
these sections. See
DatU, supra.
tinction is that * 8-
,al impairment ben-
i in the schedule.
) limits medical im-
e provided in *8-
mant sustains "an
the schedule."
7), C.RS. (1994
all physical impair-
the Workers' Com-
SUNDHEIM v. BOARD OF CTY. COM'RS OF DOUGLAS CTY. Colo. 1337
Cite as 904 P.2d 1337 (Colo.App. 1995)
~ensation Act shall be based on the A eri. .
ron Medical Associatian G%ides to the Eval. John SUNDHEIM and Joann Scoggin
tion of Permanent Impairment. The Sundheim, Plaintiffs-Appellants
ph sical impairment ratings containe in the and Cross-Appellees,
A 'can Medical Associatian G% des are,
ho ver, inconsistent with the sch duled in-
jury' pairment ratings contained * 8-42-
107(2
The conflict between the sch uled injury
imp ent ratings and the ph sical impair-
ment ra ' gs based on the Amencan Medi.
cal Asso 'ation G%ides may b) minimized by
awarding benefits for all t,ne impairments
pursuant * 8-42-107(1)(11) (governing un-
scheduled ' juries) in cases in which the
claimant s~rs only an~' jury which affects
multiple p of the bod and which :esults
in scheduled d non-s eduled ll1Junes.
Hannonizinl!i the sta~te in this fashion is
consistent witl:li the principles of statutory
construction. ::;~e H/mdersan v. RSI, Inc.,
supra. \ /
Yrv
[7,8] We cOJ\~de that S 8-42-107,
C.R.S. (1994 cud.s pp.) contemplates that a
claimant may suffer injury or injuries not
on the schedule as Iwell as an injury or
injuries which/are on 'the schedule, and as a
result of the Amschedukd injury or injuries,
mav be limited to the enefits provided in
S i4z-107f8). Further because the stat-
utes emphAsize the res t or results of an
injury, scheduled and no -scheduled losses
must be ,measured as a wh Ie-person impair-
ment wh'en those losses or' 'uries arise from
a Sing~ industrial accident.
As ;the record supports the finding that
claimAnt's injury affecting the~eCk is not a
sch~uled ~~, we perceive n eITor in th~
2a el's deCISIon.
ecause of our interpretation of S 8-42-
1 7 we do not review the proprtety of the
J's conclusion that a shOuldrr injury
/which affects the arm is not a ~heduled
/ injury. '
/ The order is affirmed.
/ TAUBMAN and KAPELKE, JJ., c ncur.
\
w
o ~nYNUMBERSYSTEM
v.
BOARD OF COUNTY COMMISSIONERS
OF DOUGLAS COUNTY, and Suzy
McDanal, R-4.. "Chris" Christensen and
James Sullivan, individually and in -their
capacities as members of the Board of
County Commissioners of Douglas
County, Colorado, and Ed Tepe, individ.
ually and in his capacity as the Director
of Planning and Community Develop-
ment in Douglas County, Colorado, De~
fendants-Appellees and Cross-Appel.
lants,
and
Dorothy Rudd and Robert Rudd,
Defendants-Appellees.
Nos. 93CA1324, 93"CA1891.
Colorado Court of Appeals,
Div. V.
,../.
'.i::;
:\,
"
March 9, 1995.
Rehearing Denied ApriL 20, 1995.
Certior-ari Granted Nov. 14, 1995.
Following board of county commission-
ers' denial of property owners' application for
use by special review to board and train
hunter/jumper horses commercially, property
owners brought action alleging federal civil
rights violations and invasion of privacy
against board, board members, county's di-
rector of planning and community develop-
ment, and adjacent property owners. The
District Court, Douglas County, Thomas J.
Curry, J., dismissed civil rights claims, grant-
ed summary judgment to defendants on inva-
sion of privacy claim, and denied county's
request for attorney fees. Owners appealed
and county cross appealed. The Court of
Appeals, Davidson, J., held that: (1) o,,,ners'
failure to bring timely action for judicial re-
,I
SEE PRlbE
No, \:;45
-
" EXHIBIT
C
',; ~~},:
1338 Colo.
904 PACIFIC REPORTER, 2d'SERIES
view of zoning decision did not bar federal
civil rights claims; (2) county and sUite pro-
cedures with regard to zoning decision com-
ported with procedural due process require-
ments; (3) owners stated substantive due
process claim with regard to county's denial
of their application; (4) owners failed to sUite
equal protection claim with regard to denial
of their application; (5) owners failed to sUite
taking claim with regard to denial of their
application; (6) owners could not state claim
under federal civil rights sUitute by alleging
violations of sUite constitutional or sUitutory
law; (7) owners lacked standing to challenge
alleged search of property leased to tenants;
and (8.) activities of investigator hired by
county to investigate zoning violations did
not constitute llsearch" that invaded owners'
privacy.
Affinned m part, reversed m part, and
remanded with directions.
1. Zoning and Planning ""'563.1
Action for judicial review under civil pro-
cedure rule is exclusive remedy for contest-
ing zoning decision when entire zoning ordi-
nance is not challenged and when record
review of county procedure provides ade-
quate remedy. Rules Civ.Proc., Rule
106(a)(4).
2. Civil Rights ""'209
Wben only declaratory relief is request-
ed with regard to zoning decision, claims
brought under federal civil rights sUitute ef-
fectively merge mto claim for judicial review
of zoning decision. 42 U.S.C.A ! 1983;
Rules Civ.Proc., Rule 106.
3. Civil Rights ""'194
If monetary damages are sought with
regard to zoning decision, action under feder-
al civil rights statute based upon alleged
violations of federal constitutional rights may
be maintained separate from action for judi-
cial review of zoning decision, regardless of
status of any action for judicial review, since
civil procedure rule governing judicial review
does not provide for damages remedy. 42
U.S.C.A ! 1983; Rules Civ.Proc., Rule
106(a)(4).
4. Civil Rights ""'194
Property o'mers' fallure to bring timely
action for judicial review of denial of their '
application for use by special review to board
and train hunter/jnmper horses commercial-
ly, and to mcorporate their constitutional
claims into that action, did not bar federal
civil rights claim, where owners did not seek
declaratory or injunctive relief but only m'On-
etary damages. 42 U.S.C.A ! 1983; Rules
Civ.Proc., Rule 106(a)(4).
5. Appeal and Error ""'854(2)
Appellate courts, if it is possible, should
uphold correct result, even if reasoning was
incorrect.
6. Constitutional Law ""'318(1)
Allegations that local administrative
body reached its decision on erroneous rea-
soning or made demands which exceeded its
Statutory authority are not sufficient to es-
tablish procedural due process claim when
state affords reasonable remedies to rectify
legal errors by local administrative bodies,
mcluding avenues of appeal, and when no
challenge is raised as to regulatory or sUitu-
tory scheme itself. U.S.C.A Const.Amends.
5, 14.
7. Constitutional Law ""'278.2(2)
Zoning and Planning ""'436.1
Procedural due process requirements
were satisfied with regard to county commis-
sioners' denial of property owners' applica-
tion for use by special review to board and
train hunter/jumper horses commercially,
where owners were accorded opportunity for
public hearing on their application, and they
could have availed themselves of procedure
for judicial review of commissioners' decision.
U.S.C.A Const.Amends. 5, 14; Rules Civ,
Proc., Rule 106(a)(4).
8. Constitutional Law ""'277(1)
Although principle of substantive due
process may apply to land use decisions by
local administrative bodies, aggrieved party
must first possess property interest protect-
ed under federal due process clause.
U.S,CA. Const.Amends. 5, 14.
,
j
g
,
t
r"
wu"e to bring timely
cW of denial of their
",cial review to board
.. horses commercial-
:;heir constitutional
did not bar federal
, )\vners did not seek
e relief but only mon-
3.CA S 1983; Rules
,).
>854(2)
it is possible, should
ven if reasoning was
<>318(1)
:ocal administrative
n on erroneous Tea-
s which exceeded its
not sufficient to es-
process claim when
, remedies to rectify
:lministrative bodies,
"peal, and when no
regulatory or statu-
,C.A Const.Amends.
<>278.2(2)
,g G=:l436.1
'ocess requirements
'd to county commis-
!'ty owners' applica-
'eview to board and
)1"Ses commercially,
"ded oPportunity for
'pplication, and they
,selves of procedure
missioners' decision..
5, 14; Rules Civ.
(1)277(1)
of substantive due
'ld use decisions. by
es, aggrieved party
rty interest protect-
e process clause.
5, 14.
SUNDHEIM v. BOARD OF CTY. COM'RS OF DOUGLAS CTY. Colo. 1339
Clteas904 P.2d 1337 (CoJo.App. 1995)
9. Constitutional Law <1>87, 278.2(1) application amounts to mere unilateral expec-
Zoning and Planning <1>6 tation. U.S.C.A Const.Amends. 5, 14.
While right to use one's own real prop-
erty as one sees fit is property right fully
protected by due process clauses of federal
and state constitutions, such use is subject to
proper exercise of local police powers.
U.S.C.A Const.Amends. 5, 14; West's
C.R.SA Const. Art. 2, S 3.
~
10. Constitutional Law <1>87
There is no constitutionally protected
right to most profitable or desirable use of
real property.
11. Constitutional Law <1>278.2(1)
It is open question in Colorado whether,
in zoning decision case in which denial of
snbstantive due process is alleged, courts
should require threshold showing of entitle-
mellt to favorable decision or should presup-
pose protected property interest arising from
ownership of land and proceed directly to
determination as to whether challenged gov-
ernmental action was arbitrary or ilTational.
U.S.C.A Const.Amends. 5, 14.
12. Constitutional Law <1>278.2(1)
Property owners alleged both entitle-
ment to favorable decision and arbitrary and
irrational governmental action, and, thus,
stated substantive due process claim with
regard to county commissioners' denial of
their application for use by special review to
board and train hunter/jumper horses com- '
mercially, where owners asserted the com-
missioners applied unusual standards of re-
view, that commissioners' standards were un-
related to application's merits, that commis-
sioners' standards were based upon. personal
considerations unconnected with legitimate
governmental objectives, and that application
would have been granted but for commission-
ers' refusal to follow existing administrative
standard. U.S.C.A Const.Amends.5, 14,
13. Zoning and Planning <1>375.1
Whether property owner has legitimate
claim of entitlement to favorable land use
decision by local zoning board depends upon
whether there is either a certainty, or a very
strong likelihood, that application would have
been granted absent conduct alleged to be in
violation of substantive due process; if not,
14. Constitutional Law <1>278.2(1)
Claim of entitlement to favorable land
use decision by local zoning board must come
from some existing legislative or administra-
tive standard in order to state substantive
due process claim' arising from denial of ap-
plication. U.S.C.A Const.Amends. 5, 14.
15. Constitutional Law <1>278.2(1)
Jf zoning application properly coufcfhave
been denied on nonarbitrary grounds, federal
substantive due process claim arising out of
denial of application will be defeated as mat-
ter of law. U.S.C.A Const.Amends. 5, 14.
16. Constitutional Law <1>278.2(1)
In detennining whether property owner
has legitimate claim of entitlement to favor-
able land use decision by local zoning board,
and, thus, whether denial of zoning applica-
tion gives rise to substantive due process
claim, focus of inquiry is on degree of discre-
tion afforded to local zoning body, not on
relative probability of favorable outcome.
U.S.C.A Const.Amends. 5, 14.
~
,,-
-
.''t
17. Constitutional Law <1>278.2(1)
Jf local zoning body has significant dis-
cretion, applicant's belief that decision was
made arbitrarily does not convert his unilat-
eral expectation into entitlement or right so
as to give. rise to substantive. due process
claim. U.S.CA Const.Amends. 5, 14.
18. Constitutional Law <1>278.2(1)
Fact that administrative body has his-
torically exercised its discretion in particular
manner does not mean that it has diminished
discretion to act differently in future, for
purpose of detennining whether administra-
tive decision violates applicant's substantive
due process rights. U.S.C.A Const.Amends.
5, 14.
19. Pretrial Procedure <1>622
Motions to dismiss for failure to state
claim are not viewed with favor and are
granted only rarely. Rules Civ.Proc., Rule
12(b)(5).
1340 Colo.
904 PACIFIC REPORTER, 2d SERlES
20. Constitutional Law ""'278.2(1)
<(Arbitrary, capricious, or irrational"
~tandard of review appropriate to property
owners' substantive due process claim in fed-
eral civil rights action, challenging den1al of
application for use by special review to board
and train hunter/jumper horses commercial-
ly, was substantially different from standard
of review under civil procedure rule relating
to judicial review of zoning decision, even
though it employed similar tenns. U.S.C.A..
Const.Amends. 5, 14; 42 U.S.C.A.. S 1983;
Rules Civ.Proc., Rule 106.
21. Constitutional Law ""'278.2(1)
Substantive due process standard of re-
view, that governmental action will not be
found to be arbitrary, capricious, or irrational
unless no articulated basis for decision bears
any rational relationship to legitimate gov-
ernmental interest, was applicable in federal
civil rights action challenging county commis-
sioners' denial of application for use by spe-
cial review to board and train hunter/jumper
horses commercially, where den1al of special
use permit was quasi-jndicial action under
state law. U.S.C.A.. Const.Amends. 5, 14.
22. Constitutional Law ""'228.2
If no statutory classification is created
by zoning regulation on its face, aggrieved
party claiming denial of equal protection
must allege that governmental actions pos-
sess element of intentional or purposeful dis-
crimination that is based on classifications
such as sex and race, or on egregious abuse
of power. U.S.C.A.. Const.Amend. 14.
23. Constitutional Law ~228.2
Property owners failed to state equal
protection claim with regard to county com-
missioners' denial of their application for use
by special review to board and train hunt-
er/jumper horses commercially, even if they
were subjected to selective treatment in de-
nial of their application, wbere they did not
allege COlTUption or bad faith intent to injure.
U.S.C.A.. Const.Amend. 14:
24. Constitutional Law ""'250.4
Departures from administrative proce-
dures or policies, use of illegitimate criteria,
and amorphous allegation of bias, bad faith,
malice, consp~acy. and cOITUption do not
amount ordinarily to cognizable equal protec-
tion claim; plaintiff must allege actions akin
to actual corruption or bad faith intent to
injure based upon personal hostility.
U.S.C.A.. Const.Amend. 14.
25. Appeal and Error ""'863
Dismissal for failure to state claim will
be affinnedif it appears that plaintiff cannot
establish any set of facts in support of his or
her claim that would permit court to grant
relief. Rules eiv.Proc., Rule 12(b)(5).
26. Eminent Domain ""'2(1.2)
Land use regulations as applied to par-
ticular piece of property will constitute tak-
ing if they prevent any economically reason-
able use of property. U.S.C.A.. Const.
Amend. 5.
27. Eminent Domain ""'293(1)
Property owners failed to state taking
claim with regard to county commissioners'
den1al of their application for use by special
review to board and train hunter/jumper
horses commercially, where complaint did
not allege that government action had result-
ed in pennanent occupation of their property
or loss of all economically beneficial or pr<>-
ductive use. U.S.C.A.. Const.Amend. 5.
28. Eminent Domain ""'277
Even if county's prohibition of commer-
cial horse training and boarding business on
owners' property divested property of its
only economically viable use, taking claim
would not be ripe under faderal civil rights
statute, where owners had not pursued any
state inverse. condemnation claim, and, thus,
had not established that state intended to
deny them just compensation. U.S.C.A..
Const.Amend. 5; 42 U.S.C.A.. S 1983.
29. Civil Rights P108.1
Plaintiff does not state claim for relief
under federal civil rights statute by alleging
that conduct of defendants violated state con-
stitutional or statutory law. 42 U.S.C.A
S 1983.
I
.
~
30. Civil Rights ""'194
To extent that property owners' claim
challenging county commissioners' denial of
their application for use by special review to
) cOgnizable equal protec-
r~ust allege actions akin
or bad faith intent to
'J"personal hostility.
!Od. 14.
ror *"863
';lure to state claim will
'''-.''8 that plaintiff cannot
:lets in support of his or
.j permit court to grant
roc., Rule 12(b)(5).
in *"2(1.2)
,,,ions as applied to par-
eny will constitute tak-
.ny economically reason-
.rtj'. U.S.C.A Const.
n ""'293(1)
3 failed to state taking
) county commissioners'
ation for use by special
ld train hunter/jumper
where complaint did
oment action had result-
:pation of their property
ically beneficial or pro-
1.. Const.Amend. 5.
n ""'277
prohibition of commer-
d boarding business on
'lested property of its
able use, taking claim
der federal civil rights
3 had not pursued any
:lation claim, and, thus,
:hat state intended to
:npensation. U.S.C.A
U.S.C.A S 1983.
08.1
. state claim for relief
.'nts statute by alleging
ants violated state con-
ry law. 42 U.S.C.A
J4
roperty o'WTIers' claim
mmissioners' denial of
3e by special review to
SUNDHEIM v. BOARD OF CTY. COM'RS OF DOUGLAS CTY. Colo. 1341
Cite as 904 P.2d 1337 (Colo.App. 1995)
board and train hunter/jumper horses com-
mercially could fairly be read as independent
claim for relief for violations of state consti-
tutional and statutory law, it should have
been brought as action for judicial review
within 30 days of commissioners' decision,
rather than as federal civil rights claim. 42
U.S.C.A S 1983; Rules Civ.Proc., Rule
106(a)(4).
31. Zoning and Planning ""'355
Denial of special use permit is quasi-
judicial action.
32. Administrative Law and Procedure
e=;;57.1
Action for judicial review represents sole
remedy for review of quasi-judicial action.
Rules Civ.Proc., Rule 106(a)(4).
33. Zoning and Planning ""'561, 584.1
When party has been afforded notice
and chance to participate in public hearing,
any challenge to local zoning body's quasi-
judicial action, whether constitutional or stat-
utory, must be joined with action for judicial
review and brought within time limits pre-
scribed by civil procedure rule governing ac-
tions for judicial review. Rules Civ.Proc.,
Rule 106.
34. Zoning and Planning ""'561, 584.1
Facial challenges to zoning, legislation
itself are not subject to general rule that,
when party has been afforded notice and
chance to participate in public hearing, any
challenge to local zoning body's quasi-judicial
action, whether constitutional or statutory,
must be joined with action for judicial review
and brought within time limits prescribed by
civil procedure rule for such actions. Rules
Civ.Proc., Rule 106.
35. Conspiracy *" 18
Even if properly pled political conspira-
cy may provide basis for action pursuant to
federal civil rights conspiracy statute, and
even though protection of. statute may reach
clearly defined politically based classes,
plaintiff must nonetheless first allege that he
or she is member of such class. 42 U.S.C.A
S 1985(3).
36. Conspiracy ""'18
Property owners failed to state claim
against county defendants and adjacent prop-
arty owners under federal civil rights con-
spiracy statute with regard to county com-
missioners' denial of owners' application for
use by special review to board and train
hunter/jumper horses commercially, where
complaint did not contain either allegation of
class-based animus or description of suffi-
ciently definite or precise class of persons in
which owners were members. 42 U.S.C.A
S 1985(3).
37. Searches and Seizures ""'162
Before aggrieved party may object to
search by government agents, he or she must
first demonstrate legitimate expectation of
privacy in areas searched, U.S.C.A Const.
Amend, 4.
38. Searches and Seizures ""'162
Party who cannot demonstrate legiti-
mate expectation of privacy by virtue of some
possessory or proprietary interest in areas
searched may lack standing to contest
search. U.S.C.A ConsL'llilend. 4.
39. Landlord and Tenant ""'127
Tenant is entitled to possession of leased
premises to exclusion of landlord, absent
some agreement to the contrary,
40. Searches and Seizures ""'26
When search takes place on leased
premises, it is lessee's rights of privacy which
are infringed, not those of landlord.
41. Torts ""'20
Property owners asserting claim for in-
vasion of privacy lacked standing to chal-
lenge alleged illegal search of their property
by private investigator hired by board of
county cormnissioners to investigate zoning
violations with regard to horse training and
boarding operation, where owners had leased
property at time of investigator's activities
and lessee was the only entity conducting
such training and boarding activities on prop-
erty,
42..8earches and Seizures €::=>16
Observations of property made from
public road by investigator, who had been
r~
1342 Colo.
904 PACIFIC REPORTER, 2d SERIES
hired by county board of commIssioners to
investigate zoning violations, did not consti-
tute "search," for purpose of determirJng
whether investigation invaded owners' priva-
cy.
See publication Words. and Phrases
for other judicial constructions and def~
initions.
43. Torts """8.5(4)
There is no invasion of privacy involved
in observing that which is plainly visible to
public, and, thus, person's real property is
not protected from observations lawfully
made from outside its perimeter.
44. Searches and Seizures <1? 19
Use of camera with telescopic lens by
investigator; who had been hired by county
to investigate zoning violations, did not trans-
form investigator's lawful observations from
public road into unreasonable "search," in
determining whether investigator's activities
invaded owners' privacy.
45. Searches and Seizures <1? 13.1
"Search" did not occur when investiga-
tor, who had been hired by county to investi-
gate zoning violations, was invited onto busi-
ness property by one of lessee's owners, for
purpose of determining whether property
owners' privacy was invaded, even though
investigator was posing as potential custom-
er.
46. Searches and Seizures <1?25.1
Business premises are protected from
unreasonable searches but they are open to
intrusions that would not be permissible in
purely private circumstances. U.S.CA
Const.Amend. 4.
47. Searches and Seizures <1?25.1
Commercial establishment enjoys dimin.
ished expectation of privacy in those areas
which are open to public.
48. Searches and Seizures <1?25.1
When intrusion into commercial estab-
lishment is based upon nature of business
activities there taking place, or upon regula-
tion thereof, business owner may not have
reasonable expectation of privacy in those
activities.
49. Searches and. Seizures <> 182
When government agent, posing as will-
ing participant in unlawful activity, is allowed
entry by invitation, there has been no unrea-
sonable search. U.S.CA Const.Amend. 4.
50. Torts <1?8.5( 4)
Property owners were not'liable for al-
leged invasion of adjacent property owners'
privacy, where, apart from their expression
of opposition to commercial horse operation
on adjacent property, they did not participate
in any challenged activities of investigator
who had been hired by county to investigate
zoning violations, and they observed and took
photographs of adjacent property only from
vantage point outside that property itself.
51. Zoning and Planning <1?353.1
Statute setting forth penalties for zoning
violations does not, by its plain terms, pre-
clude investigation of alleged zoning viola-
tions by board of county commissioners.
West's C.R.SA S 30-28-124.
52. Torts <>8.5(4)
To extent that property owners asserted
that county defendants singled them out for
investigation by "selective enforcement" of
zoning laws, that assertion failed to state
claim for invasion of privacy, since there is
no privacy interest in violating the law,
53. Judgment <>186 "
To avoid precipitous and premature
grant of judgment against opposing party,
civil procedure rule affords extension of time
to utilize discovery procedures to seek addi-
tional evidence before trial court rules on
motion for summary judgment. Rules Civ.
Proc., Rule 56(t).
54. Judgment <>186
Reasonable continuance for discovery
purposes may be ordered if it appears that
summary judgment would be premature ab-
sent opportunity to conduct such discovery.
Rules Civ.Proc., Rule 56(1).
55. Judgment <1? 186
Any discovery relating to property own-
ers' allegation regarding activities of county
defendants and adjacent property owners' in
investigating zoning violations could not have
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',ud Seizures ""'182
:"'ment agent, posing as will-
"" unlawful activity, is allowed
'c.n, there has been no nnrea-
U.S.CA ConstAmend. 4.
"
,''''/
wners were not'liable for al-
11' odjacent property owners'
apart from their expression
-~onunercia1 horse -operation
'el"'y, they did not Participate
~-ed activities of investigator
!red by county to investigate
, "ud they observed and took
adjacent property only from
utside that property itself,
Planning ""'353.1
ng forth penalties for zoning
:at by its plain terms, pre-
on of alleged zoning viola-
of county commissioners.
l 30--28-124.
.j)
at property owners asserted
,dants singled them out for
;1 selective enforcement" of
: assartion failed to stste
1 of privacy, since there is
st in violating the law.
'186
'ecipitous and premature
1t against opposing party,
ie affords extension of time
'7 procedures to seek addi-
~fore trial court rules on
ll'y judgment. Rules Civ.
186
ontinuance for discovery
'Ordered if it appears that
t would be premature ab-
o conduct such discovery.
.ule 56(f).
86
relating to property own-
"'ding activities of county
acent propert:y o'W!)ers' in
.~ violations could not have
SUNDHEIM v. BOARD OF CTY, COM'RS OF DOUGLAS CTY. Colo. 1343
Cite as 904 P.2d 1337 (CoJo.App. 1995)
resulted in any facts that would have pre- fees presently were not available under stst-
clnded summary judgment for county defen- ute awarding attorney fees upon dismissal of
dants and adjacent property owners in prop~ entire tort action. West's C.R.SA S 13-17-
erty owners' action for invasion of privacy, 201.
and. thus property owners failed to demon-
strate that discovery was necessary to op-
pose summary judgment motion, where un-
disputed material facts demonstrated no pri,
vacy interest and no illegal search. Rules
Civ,Proc., Rule 56(f).
56. Civil Rights ""'296
Under attorney fee ststute relating to
civil rights actions, ~lprevailing plaintiff' is
one who has successfully litigated significant
issue which achieves Some of tbe benefit
sought by that party. 42 U.S,C. (1988 Ed.)
s 1988.
See publication Words and Phrases
for other judicial constructions and def.
initions.
57. Civil Rights ""'296
Defendant is considered to be "prevail-
ing party" for purposes of award of attorney
fees under federal civil rights statute if plain-
tiff's claim is found to be groundless or with-
out foundation. 42 U,S.C. (1988 Ed,) s 1988.
See publication Words and "Phrases
for other judicial constructions and clef.
initions.
58. Appeal and Error ""'1207(3)
Trial court's reexamination on remand of
county's request for attorney fees under fed-
eral civil rights ststute was warranted, even
though one. of property owners' claims for
relief against county defendants had been
reinstated in part, where other claims for
relief were properly dismissed. 42 U.S,C.
(1988 Ed.) s 1988.
59, Counties ""'228
Insofar as property owners' complaint
alleged willful and wanton conduct and asked
for exemplary damages from county defen-
dants pursuant to invasion of privacy claim,
trial court was obligated under statute to
award attorney fees to county following
grant of summary judgment for county de-
fendants. West's C.RS.A S 24-10-110(5).
60, Costs ""'196
When one of plaintiffs' four claims had
been restored in part on appeal, attorney
61. Civil Rights ""'299
Costs ""'194,14
Based upon facts as alleged in property
owners' complaint asserting civil rights viola-
tions and invasion of privacy, trial court did
not abuse its discretion in declining to deter-
mine that owners knew or _.should have
known that claims were substantially frivo-
lous or substantially groundless relative to
county's actions in denying application for
use by special review to board and train
hunter/jumper horses commercially, and in
investigating zoning violations, and, thus, tri-
al court did not abuse its discretion in declin-
ing to award attorney fees under statute,
even though two civil rights claims did not
survive motion to dismiss, and invasion of
privacy claim was decided against owners on
motion for summary judgment. West's
C,RSA ! 13-17-102,
Massey Showalter & Marsh, P.C., Richard
A Marsh, Denver, for plaintiffs-appellants
and cross-appallees.
Greengard Senter Goldfarb & Rice, Steven
J. Dawes~ Kenneth R. Motsenbocker, Den-
ver, for. defendants-ap.pellees and cross-ap-
pellants.
Unkeless & Bisset, Jennifer Bisset, Den-
ver, for defendants-appellees Dorothy Rudd
and Robert Rudd.
Opinion by Judge DAVIDSON.
Plaintiffs, John Sundheim and JoAnn
Scoggin Sundheim, appeal from the dismissal
pursuant to C.RC,P. 12(b)(5) of their federal
civil rights claims brought under 42 U.S.C,
S 1988 (1988) and 42 U.S.C. S 1985 (1988),
and from the summary judgment entered in
favor of defendants, the Board of County
Commissioners of Douglas County, and Suzy
McDanal, RA "Chris" Christensen, and
James Sullivan, individually and in their ca-
pacities as members of the Board of County
Commissioners of Douglas County, Ed Tepe,
individUally and in his capacity as the Di-
1344 Colo.
904 PACIFIC REPORTER, 2d SERIES
rector of Planning and Community Develop-
ment in Douglas County, (collectively Doug-
las County) and Dorothy and Robert Rudd
(Rudds), on plaintiffs' claim for invasion of
privacy. Douglas County cross-appeals from
the denial of its request for an award of
attorney fees. We affinn in part, reverse in
part, and remand with instructions.
The following facts are set forth in the
complaint or are not disputed. Plaintiffs own
property in Douglas County which, according
to county zoning regulation, may be nsed for
the commercial boarding and training of
horses only by special review. The Rudds
own property adjacent to plaintiffs' and, as
relevant here, opposed the operation of a
commercial horse boarding and training busi-
ness in the area.
In 1990, Douglas County denied plaintiffs'
application f~r a use by special review to
board and train hunter/jumper horses com-
mercially. Plaintiffs did not seek judicial
review of this denial.
Following reports that a commercial horse
boarding and training business was operating
on plaintiffs' property, Donglas County hired
an investigator who then contacted Jay-
Brooke Training (JayBrooke) through its ad-
vertisement in the yellow pages of the tele-
phone directory which listed the Sundheim
property as its business address. He spoke
with Jennifer Brooke, one of the owners,
about boarding some horses and upon her
invitation, he made an appointment to visit
the operation.
The investigator visited the property, but
not on the appointed day. Since J eunller
Brooke was not present, the other owner
gave the investigator a tour of the facility,
deScribed the services offered, and gave him
a copy of the boarding and training contract.
After the investigator relayed this informa-
tion to Douglas County, it contacted plaintiffs
and Jay Brooke to inform them that they
were in violation of the zoning regulations.
JayBrooke moved' its business to another
location shortly thereafter.
Plaintiffs then filed suit against Douglas
County alleging violations of their due pro-
cess and equal protection rights under the
United States and' Colorado Constitutions,
and against Douglas County and the Rudds
alleging conspiracy to deprive them of their
civil rights and Violation of privacy.
The trial court dismIssed the federal and
state constitutional claims under C.R.C.P.
12(b)(5) as time barred because they had not
been filed within the 3O-day time limit for
judicial review under C.R.C.P, 106. The trial
court also dismissed plaintiffs' conspiracy
claim on the basis that they had not alleged a
race-based conspiracy.
Douglas County then moved for suspen-
sion of discovery based upon its contention
that sovereign immunity barred plaintiffs' re-
maining c1a1m for invasion of privacy. At the
same time, Douglas County moved for sum-
mary jndgment based upon sovereign inunn-
nity or, alternatively, on the basis that, ac-
cording to the undisputed facts, no invasion
of privacy had occurred. The Rudds also
filed a motion for summary jndgment. The
trial court granted the motion to suspend
discovery as to Douglas County.
Plaintiffs moved for suspension of response
to the motion for summary judgment and to
conduct discovery on the grounds that they
could not defend against the summary judg-
ment motions without conducting discovery.
The trial court denied that motion.
Plaintiffs filed no response to the motions
for summary judgment and the trial court
subsequently granted those motions.
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1.
Federal and State Constitutional Claims
Plaintiffs argue that the trial court erred
in its determination that their first two
claims for relief, brought against the county
defendants, were time-barred because they
were not brought in a C.R.C.P. 106 action
within 30 days of the Douglas County denial
of the special use application. We agree in
part.
A
Section 1983 Claims
Because they brought their federal consti-
tutional c1a1ms under 42 D.S.C. S 1983, plain-
tiffs contend that the trial court erred in
:ounty and the Rudds
deprive them of their
on of privacy.
:$,ed the federal and
,""'.$ under C.R.C.P.
'>ecause they had not
;O-jay time limit for
,R.C.P. 106. The trial
)lc.intiffs' conspiracy
they had not alleged a
!1 moved for suspen-
j upon its contention
'. b=ed plaintiffs' reo
on of privacy. At the
..:L:1t:y moved for sum-
:pon sovereign immu-
n the basis that, ac-
ed facts, no invasion
d. The Rudds also
oary judgment. The
motion to suspend
s County.
lspension of response
ary judgment and to
e grounds that they
L the summary judg-
onducting discovery.
:hat motion.
)onse to the motions
and the trial court
lose motions.
stitutional Claims
be trial court e!Ted
at their first two
against the county
!.!Ted because they.
c.R.C.P. 106 action
19las County denial
tion. We agree in
7laims
leir federal consti.
S.C. S 1983, plain-
al court e!Ted in
SUNDHEIM v. BOARD OF CTY. COM'RS OF DOVGLAS CTY. Colo. 1345
CIte as 904 P.2d 1337 (COlo.App. 1995)
applying the 3O--day limitation for filing an (1963); Dorris v. Gardner Zemke Co" 765
action for judicial review pursuant to P.2d 602 (Colo.App.l988).
C.R.C.P. 106. We agree.
[1,2] An action for judicial review under
C.R.C.P. 106(a)(4) is the e.xclnsive remedy for
contesting a zoning deeision when the entire
zoning ordinance is not challenged and when
record review of the county procedure pro-
vides an adequate remedy. See Snyder v.
City of Laleewood, 189 Colo. 421, 542 P.2d
371 (1975). Wben only declaratory relief is
requested, claims brought under 42 V.S.C.
S 1988 effectively merge into the C.R.C.P,
106 claim. Higby v. Board of County Com-
missioners, 689 P.2d 635 (Colo.App.1984).
[3] If, however, monetary damages are
sought, because C.R.C.P. 106 does not pro-
vide for a remedy in damages, a separate 42
V.S.C. S 1988 action based upcn alleged vio-
lations of federal constitutional rights may be
maintained. Sclavenitis v. Cherry Hi/J.s Vii.
lage Board of Adjustment & Appeals, 751
P.2d 661 (Colo.App.1988). Such separate ac-
tion under 42 V.S.C. S 1988 may be brought
regardiess of the status of any C.R.C.P,
106(a)(4) action. See Luck v. Board of Coun.
ty Commissioners, 789 P.2d475 (Colo.App.
1990); see also Wilson v. Town of Avon, 749
P.2d 990 (Colo.App.1987).
(4] Here, plaintiffs do not seek declarato-
ry or injunctive relief but only monetary
damages. The trial court therefore e!Ted by
determining that the failure to bring a timely
C.R.C.P. 106(a)(4) action incorporating the
federal constitutional claims barred the 42
V.S.C, S 1983 claim. Cf Marino v. Wil-
loughby, 618 P.2d 728 (Colo.App.1980) (al-
though the princlple of res judicata bars not
only claims previously decided but also all
claims which could have been brought in the
previous litigation, civil rights claims are not
barred if the administrative tribunal which
heard the case lacked the authority to consid-
er such claims or to award damages).
B.
(5] However, this does not end our inqui-
ry. Appellate courts, if it is possible, should
uphoid a correct result, even if the reasoning
was incorrect. See Skinner v. Industrial
Commission, 152 Colo. 97, 381 P.2d 253
Applying the appropriate standard of re-
view for a motion to dismiss under C.R.C.P.
12(b)(5), we will assume that the material
allegations of the complaint are true. See
Halverson v. Pikes Peale Family Counseling
& Mental Health Center, Inc, 795 P.2d 1352
(Colo.App.1990). With that assumption in
mind, we conclude that, although the trial
court properly dismissed some of plamtiffs'
s 1988 claims, it was not appropriate at this
early stage of the proceedings to dismiss
them all.
C.
Federal Constitutional Claims
Plaintiffs' 42 V.S.C. S 1988 claim alleges
that actions taken by Douglas County "in
connection with the denial of [plaintiffs' appli-
cation] wrongly and discriminatorily deprived
[plaintiffs] of their rights to beneficial use of
their real property, to due process oflaw and
to equal treatment under and protection of
federal constitutional and statutory laws pro-
tecting and safeguarding such rights."
.4
~:~
1.
Due Process
Plaintiffs' 42 V.S.C. S 1988 claim is based,
in part, upon denial of due process. We
conclude that dismissal of the claim was
proper insofar as the claim is based upon
procedural due process but was erroneous
insofar as the claim is based upon a denial of
substantive due process.
jI
, PI
, f;
t t;
a.
Procedural Due Process
"In order to establish a procedural due
process violation, a plaintiff must prove that
he or she was deprived of an opportunity . . .
granted at a meaningful time and in a mean-
ingful manner for a hearing appropriate to
the nature of the case," Brady v. Town of
Colchester, 868 F.2d 205, 211 (2d Cir.l988);
see also Boddie v, Connecticu~ 401 V.S. 371,
91 S,Ct. 780, 28 L.Ed.2d 113 (1971),
-*
1346 Colo.
904 PACIFIC REPORTER, 2d SERIES
[6J When a state affords reasonable rem-
edles to rectify legal errors by local adminis-
trative bodles, including avenues of appeal,
and when no challenge is raised as to tbe
regulatory or statutory scbeme itself, allega-
tions that the local administrative body
reached its decision on. erroneous reasoning
or made demands which exceeded its statuto-
ry authority are not sufficient to establish a
procedural due process claim. Creative En-
vironments, IrI.C- v. Estabrook, 680 F.2d 822
(1st Cir.1982); see also Bello v. Walker, 840
F.2d 1124 (3d Cir.1988).
[7J Here, plaintiffs were accorded the op-
portunity for a public hearing on their appli-
cation, and they could have availed them-
selves of a C.R.C.P. 106(a)(4) procedure for
judicial review of the county COmmissioners'
,
decision. We conclude that this comports
with procedural due process requirements.
See Van Sickle v. Boyes, 797 P.2d 1267 (Colo.
1990).
Because, as pertinent here, the county pro-
cedures, and the state procedures which
plaintiffs chose not to utilize, meet all consti-
tutional procedural due process require-
rnents, plaintiffs' due process claim under 42
U.S.C. S 1983 is precluded, as a matter of
law. See Brady v. Town of Colchester, su-
pra; Rogin v. Bensalem Township, 616 F.2d
680 (3d Cir.1980).
b.
Substantive Due Process
[8,9J Although the principle of substan-
tive due process may apply to land use deci-
sions by local administrative bodles, an ag-
grieved party must first possess a property
interest protected under the federal due pro-
cess clause. See Holland v. Board of County
Cammissioners, 883 P.2d 5{)0 (Co]o.App.
1994). Wbile the right, to use one's own real
property as one sees fit is a property right
fully protected by the due process clause of
the federal and state constitutions, this use is
subject to the proper e."{ercise of local police
powers. Western Income Properties, Inc. v.
City & County of Denver, 174 Colo. 533, 485
P.2d 120 (1971).
DOJ There is lloconstitutionally protect-
ed right to the most profitable, or desirable
use of real property. See Nopro Co. v. Town
of Cherry Hills 'Village, 180 Colo. 217, 504
P.2d 844 (1972); Madis v. Higginson, 164
Colo. 320, 434 P.2d 705 (1967).
Consequently, before a deprivation of sub-
stantive due process may be claimed, some
courts require more than mere oW11€l"ship
interest in the real property and compel the
aggrieved party to establish as a threshold
matter that it had a protected property inter.
est in the favorable zoning decision sought.
See Biser v, Town of Bel Air, 991 F.2d 100
(4th Cir.1993); RRI Realty Corp, v. Incorpo-
TOted Village of Southampton, 870 F.2d 911
(2d Cir.1989). If such a protected property
interest exists, the decision of the local ad-
ministrative board will be scrutinized as to
whether it was made arbitrarily and capri-
ciously. See J Mobs, Viseonsi & J Mobs, Co,
v. City of Lawrence, 927 F.2d 1111 (loth
Cir.1991).
Conversely, under the philosophy that the
due process clause was intended to secure
the individual from arbitrary exercise of gov-
ernmental powers, other courts presuppose
the existence of a protected property interest
arising from the ownership of land and find a
substantive due process interest in the free-
dom from "certain arbitrary, wrongful gov-
ernment actions regardless of the procedures
used to implement them. U See Pearson v.
City of Grand Blan~ 961 F,2d 1211, '1220
(6th Cir.1992); Bello y Walker, supra.
Under this approach, decisions by local
zoning bodies are evaluated as to whether
the decision was llarbitrary or irrational,"
without considering whether the property
owner has alleged any entitlement to a favor-
able decision. See Rogin v. Bensalem Town-
ship, supra.
[11, 12J It is an open question in Colora-
do, whether, in a zoning decision case in
which denial of substantive due process is
aileged, courts should require a threshold
showing of entitlement to a favorable deci-
sion or should presuppose a protected prop-
erty interest arising from the ownership of
land and proceed directly to a determination
as to whether the challenged governmental
action was arbitrary or irrational. However,
even under the more demanding standard, if
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3ee Nopro Co. v. Tcmm
109e. 180 Colo. 217, 504
",is v. Higginson, 164
705 (1967).
re a deprivation of SU~
:nay be claimed, some
than mere ownership
roperty and compel the
stablish as a threshold
'otected property inter-
~<)t...ing decision sought.
Bei Air, 991 F.2d 100
;ealty Corp. v, Incorpo-
lampton, 870 F.2d 911
h a protected property
,cision of the local ad-
:I be scrutinized as to
arbitrarily and capri-
fisconsi & J a.cobs, Co.
927 F.2d 1111 (10th
he philosophy that the
as intended to secure
Jitrary 8.."{ercise of gov-
1€r courts presuppose
?cted property interest
ship of land and find a
,s interest in the free-
Jitnry, wrongful gov-
liess of the procedures
-3rn." See Pearson v.
961 F.2d 1211, 1220
" Walker, supra.
h, decisions by local
luated as to whether
iitrary or irrational,"
'hether the property
~ntitlement- to a favor-
;n v, Bensalem Tcmm-
" question in Colora:
ing decision case in
ntive due process is
require a threshold
to a favorable deci-
se a protected prop-
'm the ownership of
y to a determination
enged governmental
rrational. However,
nanding standard, if
SUNDHEIM v. BOARD OF CTY. COM'RS OF DOUGLAS CTY. Colo. 1347
CJt.eas904 P.2d 1337 (Colo..App. 1995)
we give plaintiffs the benefit of every possi-
ble favorable inference which may be drawn
from their complaint, they have alleged a
threshold showing of entitlement to a favor-
able decision. Therefore, under either test,
they state a substantive due process claim.
Certainly, here, plaintiffs have alleged a
protected property interest arising from the
ownership of land.
[I3J On the other hand, Whether a prop-
erty owner has a legitimate claim of entitle-
ment to a favorable land Use decision by a
local zoning board depends upon whether
there is either a certainty, or a very strong
likelihood, that the application would have
been granted absent the conduct alleged to
be in violation of substantive due process; if
not, the application amounts to a mere unilat-
eral expectation. See Yale Auto Parts, Inc.
v. Johnson, 758 F2d 54 (2d Cir.1985).
[I4, 15J The claim of entitlelnent must
come from some existing legislative Or ad-
ministrative standard. Biser v. Tcmm of Bel
Air, supra. If, under that standard, an ap-
plication properly could have been denied on
non-arbitrary grounds, the federal substan.
tive due process claim will be defeated as a
matter of law. See RRI Realty Corp. v.
Incorpcrrated Village of Southampton, supra;
Yale Auto Parts, Inc, v. Johnson, supra.
[16--18J The focus of this inquiry is on the
degree of discretion afforded to the local
zoning body, not on the relative probability of
a favorable outcome. RRI Realty Corp. v.
Incorporated Village of Southampton, supra.
If the local zoning body has significant dis-
cretion, the fact that the applicant believes
the decision was made arbitrarily does not
convert his unilateral expectation into an en-
titlement or right. Biser v. Tcmm of Bel Air,
supra; see also Sylma Development Corp. v.
Calvert County, 842 F.Supp. 183 (D.Md,
1994). Neith~ will the fact that an adlninis-
!rative body has historicaliy exercIsed its dis-
cretion in a particular manner mean that it
has diminished discretion to act differently in
the future. See Jones v, Lane, 558 F.Supp.
1113 (N.D.I1i.1983).
Here, plaintiffs' complaint states that the
county COmmissioners applied unusual stan-
dards of review to their special use applica-
tion. They assert that these standards were
unrelated to the merits of the application
and, instead, were based upon personal Con-
siderations unconnected with legitimate gov-
ernmental objectives. Although it appears
that the pertinent zoning regulation vests the
county cOmmissioners with discretion in Con-
sidering whether to grant an application for
use by special review, plaintiffs' complaint
alleges that, hut for a refusal to follow an
existing administrative standard, the ..pplica-
tion would have been granted.
[19J Motions to diSmiss for failure to
state a claim are not viewed with favor and
are granted only rarely, Damdson v. Dil4
180 Colo. 123, 503 P.2d 157 (1972). Here,
considering, as we must, only the allegations
in the complaint. and aSsuming that the ma-
terial allegations are true, we conclude that
the claim alleges both an entitlement to a
favorable outcome and an arbitrary and irra-
tional governmental action relative to plain-
tiffs' application. See Colorado Nationa,l
Bank v. F.E. Biegert Co., 165 Colo. 78, 438
P.2d 506 (1968); Dillinger v. North Sterling
I'l7'i.gai;ion District, 135 Colo. 100, 308 P.2d
608 (1957).
In returning plaintiffs' substantive due
process claim to the trial court, however, we
do not express any opinion as to the eventual
outcome of this issue; our task is limited to
determining, whether plaintiffs' complaint
states a claim for relief, regardless of how
remote or unlikely it appears that they ulti-
mately will prevail. See Ragin v. Bensalem
Township, supra; Damdson v. Din supra.
;('=
1..
, 1
[20J Also, for purposes of guidance on
remand, we emphasize that "the arbitrary,
capriCious, or inational" standard of review
appropriate to plaintiffs' substantive due pro-
cess cJaim is substantially different from the
standard of review under C.R.C.P, 106, even
though it employs similar terms, See Pear-
son v, City of Grand Blanc. supra (the mean-
ing of "arbitrary and capricious" in federal
substantive due process context is far differ-
ent than in the context of state administra-
tive law).
"
[21J The precise application of this "arbi-
trary, capricious, or in-ational" standard of
1348 Colo.
904 PACIFIC REPORTER, 2d SERIES
review varies among the federal courts. See
Pearson v. City of Grand Blanc, SU'{lra.
However, most jurisdictions agree ,that, if the
zoning decision at issue may be characterized
as quasi-judicial, the governmental action will
not be found to be arbitrary, capricious, or
irrational unless no articulated basis for the
decision bears ally rational relationship to a
legitimate governmental interest. See J a-
cobs, Visconsi & Jacobs, Co. v, City of Law-
rence, supra.; Coniston Corp. v. Village of
Hojfma.n Estates, 844 F.2d 461 (7th Cir.
1988).
Because in Colorado the denial of a special
use permit is a quasi-judicial action, this
application of the standard is appropriate
here. Cj Colcmui.o State Board of Land
Cmnmissioners v. Colorado Mined Land
Reclamation Board, 809 P.2d 974 (Colo.
1991).
2.
Equal Protection
Under the same restricted review, plain-
tiffs' claim of denial of equal protection of the
law, however, is insufficient to survive a mo-
tion to dismiss nuder C.R.C.P. 12(b)(5).
[22] If, as here, no statutory classification
is created by the zoning regulation on its
face, in order to state a claim for denial of
equal protection an aggrieved party must
allege that the governmental actions possess
an element of intentional or purposeful dis-
crimination that is based on classifications
such as sex and race, . or on an egregious
abuse of power. Sylvia Development Corp.
v, Calvert County, supra.; see Trafford v.
Penno, 800 F.Supp. 1052 (D.R.I.1992).
[23] Plaintiffs do not allege any class-
based discrimination. The complaint merely
alleges that after the Board used "unusual
standards" to review plaintiffs' application,
"the board approved like or similar applica-
tions of other landowners." SpeCifically,
plaintiffs allege that their application was
denied based upon considerations unrelated
to the merits of their application. Further,
they allege that certain of the county com-
missioners should have abstained from the
application procedure.
[24]' Departures from administrative pro-
cedures or policies, use of illegitimate crite-
ria, and amorphous allegations of bias, bad
faith, malice, conspiracy, and cOITUption do
not amount ordinarily to a cognizable equal
protection claim; a plaintiff must allege ac-
tions akin to actual cO!Tl1ption or a bad faith
intent to injure based upon personal hostility.
See Trafford v. Penno, SU'{lra; Cordeco De.
velopment Corp. v. Santiago V asqu~z, 539
F.2d 256 (1st Cir.1976). This prevents dis-
gruntled permit applicants from creating
constitutional claims "merely by alleging that
they were treated differently from a similarly
situated applicant" and subjecting "virtually
any state permit denial" to s 1988 litigation.
See Nestor Colon Medina & Sucesores, Inc.
v. Custodio, 964 F.2d 32, 44--45 (1st Cir.1992).
[25] Dismissal for failure to state a claim
will be aflinned if it appears that a plaintiff
cannot establish any set of facts in support of
his or her claim that would permit a court to
grant relief. See Jacobs, Visconsi & Jru;obs,
Co, v, City of Lawrence, supra.; Davidson v.
Dill, SUpra. Because, absent allegations of
actual CO!Tl1ption or bad faith intent to in-
jure, even if plaintiffs were subjected to se-
lective treatment in the denial of their special
use application, we conclude that the facts as
alleged by plaintiffs do not state a claim
which would entitle them to relief. See Traf
ford v. Pen.no, supra.
o
o.
Taking Claim
In their briefs on appeal, plaintiffs do not
profess that this is a regulatory taking claim.
Their complaint, however, asserts that they
have been deprived of the beneficial use of
their real property. To the ,extent that this
assertion could be construed as describing a
taking without just compensation, plaintiffs'
complaint fails to state a claim.
[26, 27] Land use regulations as applied
to a particular piece of property will consti-
tute a taking if they prevent any economical-
ly reasonable use of the property. See Van
Sickle v. Boyes, su'{lra; Landmark Land Co,
v, City & County of Denver, 728 P.2d 1281
(Colo.1986). Here, however, plaintiffs' com-
plaint does not allege that government action
~om administrative pro-
lse of illegitimate crite-
dllegations of bias, bad
'acy. and COlTUption do
'/ ~D a cognizable equal
i:ai.l1ti:ff' must allege ac-
orruption or a bad faith
"pon personal hostility.
o. supra; Cordeco De-
Santiago Vasquez, 539
'6). This prevents dis-
1llcants from creating
merely by alleging that
erently from a similarly
ld subjecting "virtually
ai" w S 1983 litigation.
iina & Sucesores, Int.
12. 44-45 (1st Cir.1992).
:':.illure to state a claim
'rpears that a plaintiff
.:;t or' facts in support of
,'ould pennit a court to
.lbs, Visconsi & Jacobs,
:e, "upra; Davidson v,
, absent allegations of
oad faithmtent to in-
were subjected to se-
e denial of their speoial
,clude that the facts as
do not state a claim
,m ,0 relief. See Traf
Claim
'peal, plaintiffs do not
gulatory taking claim.
'er, asserts that they
the beneficial use of
) the extent that this
trued as describing ii
1pensation, plaintiffs'
a claim.
,gulations as applied
property vnn consti-
rent any economical_
property. See Van
~andmark Land Co.
,.ver, 728 P.2d 1281
ver, plaintiffs' corn-
t government action
SUNDHEIM v. BOARD OF CTY. COM'RS OF DOUGLAS CTY. Colo. 1349
CIte as 904 P.2d 1337 (Colo.App. 1995)
has resulted in a permanent occupation of
their property or the loss of all economically
beneficial or productive Use. Therefore, no
taking has OCc1l!Ted. See City of Northglenn
v. Grynberg, 846 P.2d 175 (Col0.1993).
[28] Furthermore, even if the prohibition
of a commercial horse training and boarding
business divested the property of its only
economically viable use, a taking claim would
not be ripe, Plaintiffs have not pursued any
state inverse condemnation claim and thus
have not established that the state intends to
deny them just compensation. See WiUiam-
son County Regional Planning Commission
v, Hamilton Bank, 473 U.S. 172, 105 S.Ct.
3108, 87 L.Ed.2d 126 (1985); Culebras Enter-
prises Corp. v, Rivera Rios, 813 F.2d 506 (1st
Cir.1987) (whether based upon the Fifth
~endment, or upon substantive due pro-
cess, damages under 42 V.S.C. S 1983 for the
diminution of value of property by govern-
ment action may not be determined until just
compensation has been either awarded or
denied).
D.
State CO'Mtituiional Claims
Although not clearly articulated in the
complaint, or in their briefs, plaintiffs argue
on appeal that their second claim for relief
for ;iolations of state statutory and constitu-
tional law also was brought pursuant to 42
V.S.C. S 1983. As snch, they assert, it was
also improperly dismissed. We disagree.
[29] A plaintiff does not state a claim for
relief under 42 V.S.C. S 1983 by alleging
that the conduct of the defendants violated
state constitutional or statutory law. Hand-
ley v, City of Seag01lille, 798 F.Supp. 1267
(N.D.TeX.1992); Schieb v. Humane Society
of Huron VaUey, 582 F.Supp. 717 (E.D.Mich.
1984); see also Baker v. McCoUan, 443 U.S.
137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979);
Paul v, Davis, 424 U.S. 693, 96 S.Ct. 1155,47
L.Ed.2d 405 (1976).
[30] Moreover, to the extent that plain-
tiffs' second claim for relief may fairly be
read as an independent claim for relief for
violations of state constitutional and statuto-
ry law, it should have been brought as a
C.RC.}'. 106(a)(4) action withIn thirty days
of the county" commissioners' zoning decision.
Therefore, this claim was properly diSmissed.
[31-33J The denial of a special use permit
is a quasi-judicial action. See Colorado State
Board of Land Commissioners v. Colorado
Mined Land Reclama;tion Board, SUipra. A
C.RC.P. 106(a)(4) action represents the sole
remedy for review of a quasi-judicial action.
See Norby v. City of Boulder, 195 Colo. 231,
577 P.2d 277 (1978). When a Party has been
afforded notice and a chance to Participate in
a public hearing, any challenge to a local
zoning body's quasi-judicial action, whether
constitutional or statutory, must be joined
with the C.RC.p. 106 action and brought
withIn the time limits prescribed by that
rule. Snyder v. City of Lakewood, S'Upra.
[34] This limitation does not apply to fa-
cial challenges to the zoning legislation itself.
See Tri-8tate Generation & Transmission
Co. v. City of Thornton, 647 P.2d 670 (Colo.
1982). Plaintiffs, however, raise no facial
Challenge to the zoning regulation at issue.
II.
CO'Mpiracy Claim
Plaintiffs next argue that the trial court
erred in determining that 42 U.S.C.
S 1985(3) (1988) does not provide relief for
an alleged politically motivated conspiracy,
Even if the trial court erred in so finding,
however, we affinn the dismissal of plaintiffs'
third claim for relief because, upon review of
plaintiffs' complaint, we can discern no al-
leged motivation for the asserted conspiracy,
political or otherwise.
In order to prevent the transformation of
42 V.S.C. S 1985 into a source of general
federal tort law, the federal courts have con-
Sistently insisted that it is necessary to allege
an invidiously discriminatory, class-based an-
imus. See Griffin v. Breckenridge, 403 U.S.
88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)
Brown v. Reardon, 770 F.2d 896 (10th Cir.
1985).
[35] In United Brotherhood of Carpen_
ters & Joiners of America v. Scott, 463 U.S.
825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983),
the Court cast some doubt upon whether a
.4
-,
,~
r'"
,
iJI
\',
1350 Colo.
904 PACIFIC REPORTER, 2d SERIES
purely politically motivated class-based ani-
mus is sufficient under 42 U.S.C. S 1985(3),
The question, however, was left undeter-
mined. Even if we assume, without deciding,
that a properly pled political conspiracy may
provide the basis for an action pursuant to 42
U.S.C. S 1985(3), see Conklin v. Lovely, 834
F.2d 543 (6th Cir.l987) (support of a political
candidate); Keating v, Ca~ey, 706 F.2d 377
(2d Cir.1983) (membership in a political par-
ty); Means v. Wiz"on, 522 F.2d 833 (8th
Cir.1975) (membership in, and activities on
behalf of, a political movement), and although
the protection of 42 U.S.C. S 1985(3) may
reach clearly defined politically based
classes, see Glasson v. City of Louisville, 518
F.2d 899 (6th Cir.1975); Cameron v. B~ock,
473 F.2d 608 (6th Cir.l973), a plaintiff must,
nonetheless, first allege ,that he or she is a
member of such a class. See Perez v. Cucci,
725 F.Supp. 209 (D.N.J.1989).
[36] Notwithstanding certain statements
made by the trial court here, our careful
review of plaintiffs' complaint reveals that
they do not allege either an identifiable polit-
ically-based anImus on the part of the county
commissioners or the Rudds, or membership
in any class. Hence, because it does not
contain either an allegation of class-based
anImus or a description of a sufficiently defi-
nite or precise class of persons to invoke a
claim under 42 U.S.C, S 1985(3), the third
claim was properly dismissed. See Wilhelm
v. Continental Title Co., 720 F.2d 1173 (10th
Cir.1983).
III.
Claim for Invasion of Privacy
Plaintiffs next argue that the trial court
erred in gTanting defendants' motions for
Summary judgment on their fourth claim for
invasion of privacy resulting from the alleged
illegal investigation of their zoning violations
by the Board. SpecifiCally, they claim that
the Board's decision to have a private investi-
gator surview their property intruded on
their "right to be left alone." We disagTee
because, as a matter of law, no privacy rights
of plaintiffs were infringed by the investiga-
tor's activities.
A.
[37, 38] Before an agg:rieved party may
object to a search by govermnent agents, he
or she must first demonstrate a legitimate
expectation of privacy in the areas searched.
People v. Oates, 698 P.2d 811 (Colo.1985); see
az"o Rokas v. Illinois, 439 U,S. 128, 99 S.Ct.
421, 58 L.Ed.2d 387 (1978). A party who
cannot demonstrate such a legitimate expec-
tation of privacy by virtue of some possesso-
ry or proprietary interest in the areas
searched may lack standing to contest the
search. People v. Fox, 862 P.2d 1000 (Colo.
App.1993); see also People v, Towers, 176
Colo. 295, 490 P.2d 302 (1971).
II
tl
J:
aJ
vi
w.
ti,
w,
di,
in",
pu
cat
in
the
pre
fro
pie,
[39,40] Absent some agTeement to the
contrary, a tenant is entitled to the posses-
sion of the leased premises to the exclusion
of the landlord. Rruiinsky v. Weaver, 170
Colo. 169, 460 P.2d 218 (1969); Rutherford v.
Scarborough, 28 Colo.App. 352, 472 P.2d 721
(1970). When a search takes place on leased
premises, it is the lessee's rights of privacy
which are infringed, not those of the land-
lord. See Cha:pman v. United States, 365
U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961);
cf Stoner v. California, 376 U.S. 483, 84
S.Ct. 889, 11 L.Ed.2d 856 (1964) (search of
hotel room violates guest's right of privacy,
not hotel owner's; therefore, hotel manage-
ment had no authority to consent to search);
United States v. Storage Spaces Designated
Nos. 8 & 49, 777 F.2d 1363 (9th Cir.1985)
(concluding that lesse~ of storage locker and
not lessor would have authority to consent to
search); People v. Breidenbach, 875 P.2d 879
(Colo.1994) (mere ownership of real property
does not confer the authority to consent to
search of that property),
[
[41] The undisputed evidence presented
by defendants in conjunction with their mo-
tions for summary jUdgment indicates that,
at the time of the investigator's activities,
plaintiffs had leased the property to Jay-
Brooke and that JayBrooke was the only
entity conducting horse training and board-
ing on the property. Therefore, the privacy
interest alleged to have been invaded by any
alleged illegal search belonged to JayBrooke
as plaintiffs' lessee, and not to plaintiffs.
A.
" aggrieved party may
. government agents, he
,monstrate a legitimate
i~ the areas searched.
',20 811 (Colo.1985); see
i, 439 U.S. 128, 99 S.Ct.
. (1978). A party who
uch a legitimate expec-
1rtue of some possesso-
'nterest in the areas
;"",ding to contest the
x. 862 P.2d 1000 (Colo.
?eople v. Towers, 176
;02 (1971).
)me agreement to the
entitled to the posses-
?rnises to the exclusion
iinsky v, Weaver, 170
3 (1969); Ruth.eiford v.
App. 352, 472 P.2d 721
'h takes place on leased
3see's rights of privacy
'Jot those of the land-
". United' States, 365
. 5 L.Ed.2d 828 (1961);
'lia. 376 U.S. 483, 84
856 (1964) (search of
lest's right of privacy,
erefore, hotel manage-
. to consent to search);
l!Je Spaces Designa,ted
:d 1363 (9th CirJ985)
, of storage locker and
1uthority to consent to
,denbach, 875 P.2d 879
ership of real property
uthority to consent to
:y).
,d evidence presented
mction with their mo-
igment indicates that.
lv'estigator's activities,
,he property to Jay-
3rooke was the only
e training and board-
rherefore, the privacy
, been invaded by any
elonged to JayBrooke
d not to plaintiffs.
" " '"".:," ':...,':' ',' ',.:..,,'... ...., .,.....::',......~,.,...
SUNDHEIM v.Bd.A.Rl:l OFCTY. COM'RS OF DOUGLAS CTY. Colo. 1351
Clteas904 P.2d 1337 (Colo...App. 1995)
Even if we consider plaintiffs' assertion,
made for the first time at oral argument, that
they did not lease their entire property to
JayBrooke, it remains undisputed that the
areas shown to the investigator when he
visited the property were only those areas in
which JayBrooke was conducting its opera-
tion.
B.
Further, no privacy interest of plaintiffs'
was violated because the challenged activities
did not constitute a search.
[42,43] It is undisputed that some of the
investigators observations were made from a
public road outside plaintiffs' property. Be-
cause there is no invasion of privacy involved
in observing that which is plainly visible to
the' public, a person's real property is not
protected from observations lawfully made
from outside its perimeter. Hoffman v, Peo-
ple, 780 P.2d 471 (Colo.1989).
[44] Neither are we persuaded that the
use of a camera with a telescopic lens trans-
forms this lawful observation into an unrea-
sonable search. See United States v. Rucin-
ski, 658 F.2d 741 (10th Cir.1981); cf. United
States v. Bassford, 601 F.Supp. 1324 (D.Me.
1985), affd, 812 F.2d 16 (1st Cir.1987) (use of
binoculars to enhance view of readily visible
marijuana plants did not constitnte unreason-
able search); State v. Rogers, 100 N.M. 517,
673 P.2d 142 (N.M.App.1983) (use of binocu-
lars does not render aerial surveillance un-
constitutionally intrusive).
[45] The remainder of the investigative
activities to which plaintiffs object took place
when the investigator was invited onto the
property by one of the JayBrooke owners.
The evidence was undisputed that, posing as
a horse owner interested in boarding and
training, the investigatnr contacted Jay-
Brooke from its advertisement in the tele-
phone book and was invited to view the
operation by Jennifer Brooke.
[4&-48] Business premises are protected
from unreasonable searches but they are
open to intrusions that would not be perntis-
sible in PJU'ely private circumstances. G.M.
Leasing Corp. v, United States, 429 U.S. 338,
97 S.Ct. 619, 50 L,Ed.2d 630 (1977). A com-
mercial establishment enjoys a diminIshed
expectation of privacy in those areas which
are open to the public. People v. Rowe, 837
P.2d 260 (Colo.App.1992), rev'd on other
grounds, 856 P.2d 486 (Colo.l993). Thus,
when an intrusion into a commercial estab-
lishment is based upon the nature of the
business activities there taking place, or upon
the regulation thereof, the business owner
may not have a reasonable expectation of
privacy in those activities. See G.M. Leasing
Corp. v. United States, su'{yl'G.
[49] Furthermore, according to the un-
disputed evidence, although the investigator
was posing as a potential customer, he was
invited onto the property. When an agent of
the government, poaing as a willing partici-
pant in unlawful activity, is allowed entry by
invitation, there has been no unreasonable
search. People v. Nuser, 189 Colo. 471, 542
P.2d 84 (1975).
Although plaintiffs protest that the investi-
gator did not view the property on the date
designated by Jennifer Brooke, it is undis-
puted that he was consensually admitted onto
the property by the co-owner of JayBrooke.
See People v. Rowe, supra; People v. Lucero,
720 P.2d 604 (Colo.App.l985).
[50] We also note that the Rudds, apart
from their expression of Opposjtion to a com-
mercial horse operation, did not participate
in any of the investigator's challenged activi-
ties, and the record indicates that plaintiffs
did not dispute this or the fact that Dorothy
and Robert Rudd, observed and took photo-
graphs of plaintiffs' property only from a
vantage point ontside the property itself.
[51] Finally, contrary to plaintiffs' con-
tention, S 30-28-124, C.R.S. (1986 Repl.Vol.
12A), which sets forth penalties for zoning
violations, does not, by its plain terms, pre-
clude investigation of alleged zoning viola-
tions by the Board. Thus, also contrary to
plaintiffs' contention, the Board did nothing
illegal, in that regard, by its investigation.
[52] To the extent that plaintiffs assert
that, by "selective enforcement" of the zoning
laws, the county defendants singled plaintiffs
out for investigation, we simply note that
\~
,II
,\\
,
1352 Colo.
904 l' ACiF'ic REPORTER, 2d SERIES
there is no privacy interest in violating the
law.
Therefore, the trial court did not en- in
granting both Douglas County's, and the
Rudds', motions for summary judgment on
plaintiffs' fourth claim for relief.
N.
Alleged Violation of C.R. C.P. S6(f)
Finally, plaintiffs contend that the trial
court en-ed by failing to grant their C.R.C.P.
56(f) motion in order to conduct discovery as
to their invasion of privacy claim. We per-
ceive no abuse of discretion.
After the trial court dismissed plaintiffs'
first, second, and third claims for relief, the
county defendants suceessfully moved for a
S1lspension of discovery pending a determina-
tion of ' the applicability of governmental im-
munity to plaintiffs' remaining claim for inva-
sion of privacy. Thereafter, all defendants
moved for summary judgment as to that
claim.
Plaintiffs responded by requesting the
court to reconsider and, pursuant to C.R.C.P.
56(f), to permit discovery sufficient to allow
plaintiffs to prepare affidavits in opposition
of the motion for sununary judgment. The
affidavits of plaintiff JoAnn Scoggin
Sundheim, of Jennifer Brooke, and of plain-
tiffs' attorney were attached in support of
this motion.
[53, 54J In order to avoid the precipitous
and premature grant of judgment agaii1st the
oppoaing party, C.R.C.P. 56(f) affords an ex-
tension of time to utilize discovery proce-
dures to seek additional evidence before the
trial court rules on a motion for summary
judgment. DuBois v. Myers, 684 P.2d 940
(Colo.App.1984). A reasonable continuance
for discovery purposes may be ordered if it
appears that summary judgment would be
premature absent the opportunity to conduct
this discovery. See Holland v. Board of
County Commissioners, SUprlL
[55J Our review of the affidavits submit-
ted by plaintiffs reveal that any discovery
related to these allegations could not have
resulted in any facts that would preclude
summary judgment. Regardless of prior ac-
tivities of the defendants regarding the inves-
tigatiou, ,th~ undisputed material facts dem-
onstrate no privacy interest and no illegal
search.
Therefore, we conclude that, regardless
whether the trial court properly suspended
discovery as to the county defendants, plain-
tiffs have 'not demonstrated that discovery
was necessary to oppose the motion for sum-
mary judgment. See NestO'l' Colon Medina
& SucesO'l'es, Inc. v. Custodio, supra (con-
struing the substantially similar Fed.R.Civ:P.
56(f)).
v.
Upon dismissal of plaintiffs' claims, Doug-
las County submitted a motion for an award
of attorney fees. On cross-appeal, Douglas
County contends that the trial court abused
its discretion by denying this motion. We
agree in part.
Douglas County argues that as to plain-
tiffs' 42 U.S.C. S 1983 and 42 U.S.C. S 1985
claims, attorney fees should have, been
awarded as costs. The trial court should
reconsider this issue.
According to 42 U.S.C. S 1988 (1988):
In any action or proceeding to enforce a
provision of sections 1981, 1982, 1983, 1985,
and 1986 of this title ... the court, in its
discretion, may allow the prevailing party,
other than the United States, a reasonable
attorney's fee'as part of the costs.
[56,57J A prevailing plaintiff is one who
has suceessfully litigated a significant issue
which achieves some of the benefit sought by
the party. Hensley v. Eckerharl, 461 U.S.
424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A
defendant, in contrast, is considered to be a
prevailing party for purposes of an award of
attorney fees if the plaintiffs cIa;,;, is found
to be groundless or without foundation. See
Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66
L.Ed.2d 163 (1980).
[58J Here, although plaintiffs' first claim
for relief has been reinstated in part, plain-
tiffs' second claim for relief was properly
dismissed, as was their 42 U.S.C. S 1985
claim. Accordingly, applying the appropriate
"
f
;:.mts regarding the inves-
"tea material facts dem-
.. interest and no illegal
'cclude that, regardless
Jurt properly suspended
'":ooty defendants, plain-
0nscrated that discovery
:';os€ the motion for sum-
'? Vestor Colon Medina
Custodiol supra (con~
:aBy simllar Fed.RCiv.P.
v.
pl.?intiffs' claims, Doug~
i , motion for an award
n cross-appeal, Douglas
, the trial court abused
:lying this motion. We
rgues that as to plain-
S ,md 42 U.S.C. S 1985
es should have been
The trial court should
',S.C. S 1988 (1988):
:!'Dceeding to enforce a
5 1981, 1982, 1988, 1985,
:Je '.. the court, in its
lW the prevailing party,
:ed States, a reasonable
art of the costs.
ng plaintiff is one who
.lted a significant issue
;f the benefit sought by
v. Eckerhart, 461 U.S.
i L.Ed.2d 40 (1983), A
:, is considered to be a
urposes of an award of
jaintiffs claim is found
ithout foundation. See
J.S. 5, 101 S.Ct. 173, 66
h plaintiffs' first claim
;nstated in part, plain-
r relief was properly
eir 42 U.S.C. S 1985
'plying the appropriate
H()RNSitV'ER CIRCLE, LTD. v. TROPE Colo. 1353
Cite as 904 P.2d 1353 (Colo.App. 1995)
standard on remand, the trial court should dants. The cause is remanded for further
re-examine Douglas County's request. proceedings consistent with this opinion.
[59] Further, we agree with Donglas
County that. insofar as plaintiffs' complaint
alleged willful and wanton conduct and asked
for exemplary damages from the county de-
fendants pursuant to the invasion of privacy
claim, the trial court mnst award attorney
fees under S 24-10-110(5), C.R.S. (1987
Repl.Vol. lOA).
[60] We do not agree, however, that the
trial court should have awarded attorney fees
pursuant to S 13-17-201, C.R.S. (1987 Repl.
Vol. BA). According to First Interstate Bank
v. Berenbaum, 872 P.2d 1297 (Colo.App.
1993), no attorney fees award may be grant-
ed,under S 13-17-201 unless an entire tort
action has been dismissed. Here, one of
plaintiffs' four claims has been restored in
part. Therefore, S 13-17-201 is not present-
ly avallable as a basis for an award of attor-
ney fees. See Holl.CLnd v. Board of County
Commissioners, supra..
[61] Finally, we do not agree that plain-
tiffs' claims were frivolous and groundless
pursuant to S 13-17-102, C.RS. (1987 Repl.
Vol. 6A). Althongh plaintiffs' seeond and
third claims for relief did not survive a mo-
tion to dismiss under C.RC.P. 12(b)(5), and
plaintiffs' fourth claim was decided against
them on motion for surnmar,y judgment, we
are preclnded under the appropriate stan-
dard of review from concluding that. based
upon the facts as alleged in the complaint.
plaintiffs knew or should' have known that
these claims were snbstantially frivolous or
substantially groundless relative to the ac-
tions of Douglas County. See Cohen v. Em-
pire Casualty Co., 771 P.2d 29 (Colo.App.
1989).
The judgment as to plaintiffs' second,
third, and fourth claims is affirmed. The
dismissal of plaintiffs' first claim for relief is
reversed, as is the order denying Douglas
County an award of attorney fees. Because
only the third and fourth claims are applica-
ble to the Rudds, the trial cou..rt is directed to
dismiss the complaint as against these defen-
STERNBERG, C.J., and KAPELKE, J.,
concur.
w
o ~ UY NUMBfR SYST~M
T
HORNSILVER CIRCLE, LTD., a Colora-
do general partnership, and Sherry B.
Johnson, Plaintiffs-Appellees,
v.
Linda TROPE and Sorrell Trope,
Defendants-Appellants.
No. 93CA1770.
Colorado Court of Appeals,
Div. V.
March 9, 1995.
Rehearing Denled April 27, 1995.
Certiorari Denied Oct. 30, 1995,
k
r_
\~
Owner of dominant tenement sought to
enjoin owners of servient tenement from in-
terfering with parking easement and, after
bench trial, the District Court, Eagle County,
Richard H. Hart, J., granted injunction.
Owners of servient tenement appealed. The
Court of Appeals, Sternberg, C.J., held that:
(1) easement was valid even though deed
contained inaccurate legal description of
dominant tenement: (2) owners of senient
tenement had actual notice of easement when
they purchased their property; and (3) own-
ers of servient easement impermissibly inter-
fered with dOminant tenement's use of ease~
ment by cantilevering part of new house over
portion of easement and landscaping so as to
raise elevation of easement area.
1"
Affirmed.
1. Easements """12(2, 3)
No particular words are necessary for
grant of easement, but the instrument must
664 Colo.
759 PACIFIC REPORTER, 2d SERIES
D.
Finally, the respondent contends that he
sholJld have been allowed an attorney's lien
for moneys received from Bizer and Fitz-
patrick.
In February 1986, the board ordered the
respondent to slJbmit a statement and list
of alJthorities within ten days slJpporting
his claim that the $1,800 given to him by
Fitzpatrick was his property IJnder an at-
torney's lien. In the same order, the re-
spondent was also advised that IJnless the
statement was filed by the date requested,
he could not raise the attorney's lien as an
issue. The respondent failed to comply
with the board's order. We find no error in
the board's denial of the respondent's claim
that he """'s entitled to an attorney's lien.
Apart from the waiver issue, the respon~
dent has also failed to demonstrate how the
board cOlJld "grant" the respondent a stat-
IJtory lien, nor why it sbould do so, even
assuming it possessed slJch j1.1risdiction.
The respondent's contention is without
merit.8
In slJmmary we affirm the findings, con-
clusions, and recommendations of the
board, as considered and unanimously ap-
proved by the hearing panel.
[9] Accordingly, the respondent is SIJS-
pended from the practice of law for one
year and a day from the date of this opin-
ion. Upon application for reinstatement he
will be reqlJired to give evidence of treat-
ment for migraine headaches supported by
a physician's statement and treatment
records. Also, he shall pay restitution to
Betty Rowley in the amount of $995; and
to Donna Fitzpatrick and Gary Bizer in the
amOllnt of $1,800. Finally, the respondent
is directed to pay $1,147.07 for the costs of
these proceedings to the Supreme Conrt
Grievance Committee, 600 Seventeenth
Street, Suite 50O-S, Denver, Colorado
8. In his opening and reply briefs submitted to
this court, the respondent raises the defense of
laches. although laches was not. claimed as an
exception to the hearing board's findings, con-
clusions, and recommendations. The respon-
dent admits that he did not specifically plead
laches in his answers to the original complaints.
Under C.R.C:P.. 241.13, a respondent must set
forth in his answer any affirmative defense he
80202-5435, within sixty days from the
date of this opinion.
w
o ~KEl'HtJMBERSYSTEM
r
Ysidro M. ZAVALA and Norma L.
Dotson, Plaintiffs-Appellants,
v.
CITY AND COUNTY OF DENVER, a sin-
gle body politic and corporate; Board
of Zoning Adjustment for the City and
County of Denver; Marjorie Hornbein,
Lawrence Henry, Emest Capillupo,
Frana Mace, and Charles Cousins, as
members of the Board of Zoning Ad-
jlJstment for the City and County of
Denver; and Dorothy Nepa, as Zoning
Administrator for the City and County
of Denver, Defendants-Appellees.
No. 85SA300.
SlJpreme Court of Colorado,
En Bane.
hne 20, 1988.
Rehearing Denied JlJly 11, 1988.
Unmarried, .lJnrelated homeowners
brought action against city zoning board,
city, county, and zoning administrator to
challenge order to cease violating ordi-
nances that allegedly prohibited them from
living in single-lJnit dwelling and to chal-
lenge constitutionality of ordinances. The
District Court, City and County of Denver,
Leonard P. Plank, J., rejected homeowners'
contentions, and they appealed. The Su-
preme Court, Kirshbaum, J., held that: (1)
homeowners waived right to claim violation
may allege. Moreover, C.R.C.P. 241.20 states
that "filE no exceptions are filed. the matter will
stand submitted upon the hearing panel's
[board's] report." In light of these provisions,
we agree with the People that the respondent's
failure to plead this defense, either in his an.
swer, or in the exceptions he submitted to this
court, results in a waiver of that defense.
SEE P'j. b6B
~
oi EXHIBIT
])
~
"
days from the
$
.~,
::/
ZA V A1.A v. CITY AND COUNTY OF DENVER
Cite as 759 Pold 664 (Colo. 1988)
Colo. 665
'<'
of procedural due process; (2) homeowners
failed to establish intentionally discrimina.
tory enforcement of ordinances; and (3)
remand was required so that District Court
could make further findings and conclu-
sions on constitUtionality of ordinances.
Affirmed in part, reversed in part, and
remanded.
Erickson, J., specially concurred and
filed opinion joined by Lohr and V ollack,
JJ.
Zi
;J.
d Norma L.
, opelIartts,
!-
I
!
r'
L
,
,
1. Zoning and Planning ""'358
Erroneous statements in neighborhood
organization referral form and. zoning ap-
peal application that referred to vendor as
property owner and homeowners as ten-
anj:s did not deprive city board of zoning
adjustment of jurisdiction over challenge to
residence in single-unit dwelling by un-
related, nnmarried homeowners. U.S.C.A.
Canst.Arnends. 5, 14; Const. Art. 2, SS 3,
25.
)ENVER, a sin-
;porate; Board
or the City and
jOrie Hombein.
lest CapilIupo,
les Cousins, as
of Zoning Ad-
and County of
'epa. as Zoning
:ity and County
,Appellees.
J.
2. Zoning and Planning ""'572
Unmarried, unrelated bomeowners,
who fully participated in hearing before
city zoning board and failed to object to
allegedly erroneous notice provision,
waived any right later to claim that defects
violated procedural due process. U.S.C.A.
Const.Amends. 5, 14.
3. Civil Rights ""'13.13(3)
Unmarried, unrelated homeowners
failed to establish intentional, discriminato-
ry enforcement of ordinances against un-
married, unrelated residents in single-unit
dwelling and failed to establish violation of
rights to equal protection and due process;
homeowners stipulated that zoning depart-
ment proceeded in same manner used to
respond to other complaints of .alleged zon-
ing violations. U.S.C.A. Const.Amends. 5,
14; Canst. Art. 2, SS 3, 25.
4. Constitutional Law ""'250.1(3)
Fact that some individuals escape pros-
ecution under ordinances is insufficient to
establish intentional, selective enforcement
of ordinance in violation of equal protection
clause.. U.S.C.A. Const.Amend. 14.
2olorado,
'.:(:
:8.
y 11, 1988.
:J homeowners
y zoning board,
ldministrator to
violating ordi-
bited them from
ng and to chal-
)rdinances. The
unty of Denver,
ed homeowners'
caled. The Su-
i., held that: (1)
o claim violation
r
~
l
I
~
I:
!?:j-
,C.P. 241.20 states
ed, the matter will
hearing panel's
r these provisions,
.1 the:: respondent's
either in his an-
submitted to this
that defense.
5. Zoning and Planning ""'5
Home rule city's zoning authority is
governed by its own charter and ordi-
nances. Canst. Art. 20, S 6.
6. Zoning and Planning ""'676
Zoning decisions of municipal authority
are presumed valid.
7. Zoning and Planning ""'681
Party Challenging constitutionality of
zoning ordinance normally bears burden of
proving asserted invalidity beyond reason-
able doubt.
8. Constitutional Law ""'228.2, 278.2(1)
Each case involving challenge to zon.
ing ordinance under equal protection and
due process clauses requires careful as-
sessment of particular right asserted and
specific conclusions regarding purposes of
ordinance. U.S.C.A. Const.Amends. 5, 14;
Const. Art. 2, SS 3, 25.
9. Appeal and Error ""'1177(8)
District court's holding that prior, Col-
orado Supreme Court decision required de-
nial of challenge by unmarried,nnrelated
homeowners to constitutionality of ordi-
nances allegedly prohibiting their residence
in single-unit dwelling required remand for
findings and conclusions concerning extent
of rights asserted by homeowners, pur-
poses of ordinances, and extent of ordi-
nances' prohibitions. U.S.C.A. Const.
Amends. 5, 14; Const. Art. 2, SS 3, 25.
Beck and Cassinis, Howard J. Beck and
Diana J. Payne, Aurora, for plaintiffs-ap-
pellants.
Stephen H. Kaplan, City Atty., Robert M.
Kelly and Daniel B. Slattery, Denver, for
defendants-appellees.
KIRSHBAUM, Justice.
Ysidro M. Zavala and Norma L, Dotson
(appellants) appeal a district court's judg-
ment rejecting their contentions that sec-
tions of the Revised Municipal Cade of the
City and County of Denver (the Code) vio-
late their rights to substantive due process
of law and equal protection of the law
under the United States and Colorado Con-
666 Colo.
759 PACIFIC REPORTER, 2d SE~IES
stitutions and that the enforcement of
those provisions by municipal authorities
was arbitrary, capricious" constituted an
abuse of discretion and also violated appel-
lants' constitutional rights.' The district
court based its conclusion solely on Our
decision in Bademan v. City & County of
Denver, 186 Colo. 250, 526 P.2d 1325
(1974). We affirm the judgment insofar as
it denied the appellants' claims alleging
improper enforcement of the Code against
them. However, because we conclude that
Bademan is not dispositive of all of the
appellants' claims, and because the district
court's ruling lacks certain critical findings,
we reverse the judgment insofar as it re-
lates to the appellants' remaining claims
and remand the case for further proceed-
ings consistent with this opinion.
I
The appellants, a man and a woman who
are neither married nor otherwise related,
purchased as joint tenants a residential lot
and dwelling on February 9, 1984, from the
International Missionary Society of the
Seventh Day Adventist Church. The prop-
erty is located in Denver and is subject to
the provisions of the Code regulating the
use of land and Structures.
The Code creates specific zoning districts
throughout Denver and defines what uses
may be pursued in each district. Uses of
property defined by the Code include uses
by right, uses by temporary permit, acces-
sory uses and home occupations. Denver,
Colo.Rev.Mun.Code S 59-2(97) (1982).
Uses by right require no special authoriza-
tion from administrative officials. See
Denver, Colo.Rev.Mun.Code S 59-2(15)
(1982). Persons wishing to nse land or
structures for uses other" than uses by
right must obtain authorization from the
Department of Zoning Administration (the
Department) for that use.
Eleven different residential districts are
established by the Code. Occupancy of
buildings as Hsingle unit dwellings" is au~
thorized as a use by right in ten of those
districts. A "?ingle unit dwelling" is de-
fined as follows:
A single detached structure having but
one dwelling unit with a single kitchen
and hOUSing any number of persons bear-
ing to each other the relationship of:
husband, wife, mother, father, grand-
mother, grandfather, SOD, daughter, sis~
ter, brother, stepson, stepdaughter, step-
brother, stepsister, stepmother, stepfa-
ther, grandson, granddaughter, mother-
in-law, father-in-law, sister-in-law, broth~ _
er-in~law, daughter-in-law, son-in-law, un-
cle, aunt, nephew or niece living together
as a single, non-profit housekeeping unit,
pIns domestic servants employed for ser-
vice on the premises; provided, however,
that upon application to and issuance by
the department of zoning administration
of a permit therefor, one additional kitch-
en may be maintained.
Denver, Colo.Rev.Mun.Code S 59--2(131)
(1982). Although in some of the residential
districts persons may request permits from
the Department to use land or Structures
for certain permitted home occupations in
connection with the operation of a single
unit dwelling, home occupation uses are
not permitted in other residential districts.
Permissible home occupation uses also
vary. Compare Denver, Colo.Rev.Mun.
Code S 59-102(4) (1982) with Denver, Colo.
Rev.Mun.Code S 59-103(4) (1982): In
some, but not all, of thOSe districts in which
home occupation uses are permitted, land
and structures may be used for "rooming
and/or boarding," which the Code defines
as "[tJhe furnishing of lodging with or
without meals for compensation to perma.
nent guests." Denver, Colo.Rev.Mun.Code
S 59-2(121) (1982).
Department officials received a tele-
phone call from an unidentified caUer com-
plaining about activities of the former own-
ers and occupants of the house. While
investigating that complaint, Department
representatives learned that the appellants
are not related by marriage or by blood.
The appellants occupy the dwelling and op-
erate it as a single housekeeping unit,
share expenses, and describe themselves as
companions. They have not sought a per-
mit to use their property for any home
9 13-4-102(I)(b). 6A C.R.S. (1987).
1. This court has jurisdiction pursuant to
..~
'0<.:
"'"
:1'
t;
:~
~{
~
f~
F,,~.
f~
~'~
>1:
.,
'~'tI:
Il~
, "i
.":.
; ','
i'"o
1.-"
I",
! '
I:.,
~i
!~)-::,
i ,
,"' '
t! ?
~,
ZAVALA v. CITY AND COUNTY OF DENVE:R
Cite as 759 P.2d 664 (Colo. 1988)
.:.re having but
single kitchen
:: persons bear-
"elacionship of:
rat..,er, grand-
. daughter, sis-
daughter, step-
:1o:her, stepfa-
~ghter, mother-
'.l:-.~n-law, broth-
, son-in-law, un-
Ji....ing together
lsekeeping unit,
:1ployed for 5er-
,vided, however,
md issuance by
;- administration
odditional kitch-
~,
occupation use. Each depends upon the
economic contribution of the other to main-
tain, the premises. The record contains, no
evidence to suggest their, presence has in
any manner adversely affected the neigh-
borhood or its residents.
Section 59-102(1)(b) of the Code autho-
rizes as a use by right in RS-4 zones the
use of land and structures for single unit
dwellings. On June 1, 1984, the Depart-
ment issued an order to the appellants di-
recting them to cease and desist violating
sections 59-102(1)(b) and 59-2(131) of the
Code on or before June 30, 1984.
The appellants appealed this order to the
Board of Zoning Adjustment for the City &
County of Denver (the Board). Following
a hearing, the Board npheld the order, con-
dulling that it lacked jurisdiction "to add or
effect changes to the uses enumerated in a
district." However, because the Board
concluded that the appellants would experi-
ence hardship because they would have to
either sell their house or alter their person-
al relationship, it granted the appellants a
six-month stay of the ruling, pursuant to
S 59-54(6) of the Code.2
The appellants then filed a complaint in
the Denver District Court against the
Board, its members, the City and County of
Denver (the City) and the City's Zoning
Administrator for judicial review of this
ie S 59-2(131)
: the residential
,st permits from
1d or structures
:: occupations in
cion of a single
;:>ation use's ,are
dential districts.
:.don uses'" also
Colo.Rev.Mun.
th Denver, Colo.
~} (1982). In
iistricts in which
permitted, land
ed for Hrooming
;he Code defines
lodging with or
sation to penna.
io.Rev.Mun.Code
-.;-..
~ ~:
I
1>:
J
1
'{,
2. Pursuant to ~ 59-54(6), the Board may grant a
six.month delay of enforcement under the fol.
lOWing circumstances:
Six-month delay of enforcement. Whenever
the department of zoning administration has
issued an order to cease and desist from any
use not authorized by this chapter, except as
provided in subsection (5), above, the board,
upon appeal, may find that the literal enforce-
ment of the provisions will result in unneces-
sary hardship by reason of unique and excep-
tional circumstances iocluding owner's physi.
cal- condition, age, and/or other factors as
deemed by the board to be unique or excep-
tional. In that event the hoard may order a
delay, for a period of not to exceed - six (6)
months, of the enforcement of such cease and
desist order. Upon expiration of any order
delaying enforcement of such cease and desist
order, the board 'may review, at a' regular
hearing before the board, an applicant's re-
quest for an additional six (6) months' exten-
sion and grant only one such extension
should the board find that the conditions still
exist. All such actions by the board shall be
~
~J<
'eceived a tele-
tified caller com~
the former own-
,house. While
,int, Department
at the appellants
'ge or by blood.
dwelling and op-
Isekeeping unit,
be themselves as
ot sought a per-
r for any home
(1987).
;..:.
""
.$
~~
y'
Colo. 667
ruling Rursnant to C.RC.P. 106(a)(4) (re-
view of ruling by an inferior tribunal) and
section 24-4-106, 10 C.RS. (1978) (review
of agency action). The appellants also
sought declaratory relief pursuant to C.R
C.P. 57(a). The C.RC.P. 106(a)(4) claim
alleged, inter alia, that sections 59-2(131)
and 59-102(1)(b) of the Code violated the
appellants' rights under the United States
and Colorado Constitutions to freedom of
association, due process of law and equal
protection of the laws and that the (lec;-
sions and orders of the appellees were arbi-
trary, capricious and constituted abuses of
discretion. The declaratory judgment
claim reqnested a declaration that these
two ordinances violated the United States
and Colorado Constitutions on the grounds
alleged in the first claim and on the addi-
tional grounds that the ordinances violated
the appellants' rights of privacy, use and
enjoyment of their property, and associa-
tion uwithout any reasonable relationship
to a rational stete purpose" in violation of
article II of the Colorado Constitution.
The claim purportedly base,g on section 24-
4-106 alleged that the Board's decision was
"arbitrary, capricious and violate[d] the
[appellants'] constitutional rights." 3
Before oral argument, the parties sub-
mitted a joint stipulation of facts. The
stipulation indicates that the appellants are
recorded in the office of the ~lerk and record.
er of the",city. Such stay shall ,oat be a vari.
ance on the use of a premises, shall be person-
al to the applicant therefor and shall not be
transferable.
Denver, Colo.Rev.Mun.Code S 59-54(6) (1982).
3. The review provisions of section 24-4-106, 10
C.R.S. (1982), apply to certain types of proceed-
ings conducted by some state agencies. The
record does not indicate the basis for the appel.
lants' reliance on this portion of the Administra~
tive Procedure Act for review of the Board's
order. See, e.g" 9 31-23-307(1). 12B C.R-S.
(1986) (decisions of boards of adjustment of
municipalities subject to certiorari review by
district court); S 59-56(a), Denver, Colo.Rev.
Mun.Code (1982) (aggrieved persons may have
decisions .of . Denver Board of Adjustmentre.
viewed in the manner provided by rules relating
to civil proceedings). The appellants' third
claim, however. appears to seek the identical
relief requested by the appellants' C.R.C.P.
l06(a)(4) cJaim, and we consider only the C.R.
C.P, 106(a)(4) claim.
668 Colo.
759 PACIFIC REPORTER, 2d SERIES
related neither by blood nor marriage, that
they operate the residence as a single
housekeeping unit, that they are the sole
occupants of the house and that neither
would be able to live in the house without
the financial contributions of the other.
Following brief oral arguments, the district
court entered a written order "declin[ing]
to hold the ordinance unconstitutional" on
the ground that it was "bound by the case
of Rademan v. City & County of Denver,
186 Colo. 250 [, 526 P.2d 1325 (1974)]."
The court made no findings of fact and
stated no other conclusions of law. This
appeal followed.
II
The appellants assert that their rights to
procedural due process of law under the
fifth and fourteenth amendments to the
United States Constitution and article II,
section 25, of the Colorado Constitution
were violated because the notice they re-
ceived was defective. They also assert
that their rights to equal protection of the
law under both constitutions were violated
because Denver's enforcement of the ordi~
nances was arbitrary and capricious. AI.
though the district court's order made no
specific reference to these legal arguments,
the record on appeal permits the conclusion
that they are without merit.
The appellants aclmowledged that they
received notice of the August 14, 1984,
Board of Adjustment hearing, but contend
that the notice they received was defective
because it indicated that the International
Missionary Society of the Seventh Day Ad.
ventist Church was the oWller of the prop.
erty in qnestion. The record contains only
two documents which list the Seventh Day
Adventist Church as the owner of the ap-
pellants' home. One is a "Neighborhood
Organization Referral Form" which noti.
fied an entity described as the Rangeview
Homeowners Association of the date, loca.
tion and subjeet matter of the appellants'
appeal. The other is a typewritten "zoning
appeal application" listing the appellants as
tenants of the property. With the excep-
tion of the designation of the owner, the
application is substantially similar to a
handwritten ~'zoning appeal application"
form which was filed on behalf of the ap-
pellants by .their attorney.
[1, 2] The appellants appeared at the
August 14, 1984, hearing- and failed to ob-
ject to the 'adequacy of the notice. The
erroneous statements here challenged did
not deprive the Board of jurisdiction and
did not affect the appellants' ability to safe-
guard their interests. See Sundance Hills
Homeowners Ass'n v. Board of County
Comm'rs, 188 Colo. 321, 534 P.2d 1212-'
(1975); Titus v. Zoning Bd. of Review, 99
R.l. 211, 206 A.2d 630 (1965); White v.
Zoning Bd. of Adjustment, 363 S.W.2d 955
(Tex.Civ.App.1962). Furthermore, b~
participating- in the hearing and failing- to
object to any notice provisions, t~el.
lants waived any rig-ht to later claim these
defects constituted a violation of their due
process rights. Hendrickson v. Depart.
ment of Revenue, 716 P.2d 489 (Colo.App.
1986); Mattingly v. Chames, 700 P.2d 927
(Colo.App.1985).
[3,4] The appellants also assert that en.
forcement of the ordinances against them
was arbitrary and capricious because other
nnrelated persons residing together in oth.
er properties in RS-l residential zones
have not been prosecuted by the Depart.
ment. Discriminatory enforcement' of zon-
ing regulations may well result in a depri.
vation of equal protection rights. . Earl &
Sons Tire Cente, v. City of Boulder, 192
Colo. 360, 559 P.2d 236 (1977). However,
persons asserting equal protection depriva.
tions of this type must establish intentional
diSCriminatory enforcement of regulations
against them; the fact that some other
individuals escape prosecution under an or-
dinance is insufficient to establish inten~
tional selective enforcement of the ordi-
nance, Snowden v. Hughes, 321 U:S. 1, 64
S.Ct. 397, 88 L.Ed. 497 (1944); May v.
People, 636 P.2d 672 (Colo.1981); Parrack
v. Town of Estes Park, 628 P.2d 1014 (Colo.
1981); Earl & Sons 'l'ire Center v. City of
Boulder, 192 Colo. 360, 559 P.2d 236. The
appellants offered no evidence to establish
their claim of intentional discriminatory en.
forcement of the ordinance against them.
To the contrary, they stipulated that the
"
~
.II
l
J
~
t
,f;
l!-
f
:;.;;;.
l
i>t;
,
-*
"
, the ap-
3,t the
old to ob-
"e. The
::.g:ed did
::ion and
~,. :.0 safe-
nee Hills
, County
'.2d 1212
: eview, 99
White v.
.W.2d 955
" by fully
failing to
,he appel-
::lim these
their due
" Depart-
iCoio.App.
i) P.2d 927
ert that en-
:ainst them
cause other
ther in oth~
ntial zones
the Depart-
nent of zon-
~ in a depri~
,ts. Earl &
lou./der, 192
. However,
tion depriva-
h intentional
:' regulations
some other
under an or-
:ablish inten-
of the ordi-
321 U.S. 1, 64
144}; May v.
81); Parrack
2d 1014 (Colo.
,ter v. City of
'.2d 236. The
,e to establish
riminatory en-
against them.
ated that the
\
I
\
I
ZAVALA v. CITY AND COUNTY OF DENVER
Cite:as 759 P.zd 664 (Colo. 1988)
Colo. 669
Department proceeded with respect to the
complaint initiating this proceeding in the
same manner it. responded to other carow
plaints of alJeged zoning violations.
The record does not support the appel-
lants' claims that their rights to due pro-
cess of law and equal protection of the law
were infringed by the manner in which the
ordinances were enforced against them.
Consequently, to the extent the judgment
of the district court denied the appelJants'
claims that the appellees' actions in enforc-
ing the ordinances were arbitrary, capri-
cious, and constituted abuses of discretion,
or violated procedural due process and
equal protection rights, the judgment is
affirmed.
III
The appellants also contend that the dis-
trict court erred in holding that our deci-
sion in Rademan v. City & County of
Denver, 186 Colo. 250, 526 P .2d 1325
(1974), required the conclusion that the pro-
visions of these ordinances do not imper-
missibly impair their constitutional rights.
We agree.
In Rademan v. City & County of Den-
ver, 186 Colo. 250, 526 P.2d 1325, we held
that then existing sections 612.1-3(1)(b) and
619.400 of the Code, which permitted only
single unit dwellings in certain Denver
neighborhoods, did not infringe upon the
fourteenth amendment rights of two mar-
ried couples and two individuals who as-
serted violations of their rights of privacy
and their rights to associate freely with
whomever they wished. The two appel-
lants here assert that sections 59-2(131)
and 59-102(1)(b) of the present Code de-
prive them not only of associational rights
and their rights "not to marry," but also
their rights as property owners to use their
property as they desire. The number of
plaintiffs in Rademan, their relationships,
and the nature of the rights assertedly
infringed are substantially different than
the circumstances presented here.
In addition, Rademan relied extensively
on the then quite recent decision of the
United States Supreme Court in Village of
Belle Terr~ v. Boraas, 416 U.S. 1, 94 S.Ct.
CoIo.Rep. 758-759 P.2d-S
1536, 39 L.Ed.2d 797 (1974). Since then,
the Court has considered constitutional
challenges to local. zoning ordinances in
Moore v. City of East Cleveland, 431 U.S.
494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)
(plurality opinion), and City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985). Those
decisions must also be considered in assess-
ing the effects of Rademan under the cir-
cumstances presented by this case.
These disparate factual and legal circum-
stances distingnish Rademan and render
its authority instructive but not, as the
district court held, binding. In the absence
of any findings of fact by the district conrt
in support of its decision, the case must be
remanded for further consideration. The
following discussion suggests the frame-
work within which the appellants' claims
should be evaluated.
A
[5J Denver is a home rule city., See
Colo. Const., art. XX, S 6; Lehman v. City
& County of Denver, 144 Colo. 109, 355
P.2d 309 (1960); Colby v. Board of Adjust-
men~ 81 Colo. 344, 255 P. 443 (1927). As
snch, its zoning authorit)' is governed by
its own charter and ordinances. Sellon v.
City of Manitou Springs, 745 P .2d 229
(Colo.1987); City of Colo. Springs v.
Smartt, 620 P .2d 1060 (Colo.1980). Sec-
tions B1.l3 and B1.14 of the Charter of the
City and Connty of Denver delegate zoning
power to the Den.ver City CouncIl:
[6,7J Implicit in this constitutional del-
egation of authority is the recognition that
the City possesses broad legislative discre-
tion to determine how best to achieve de-
clared municipal objectives. Nopro Co. v.
Town of Cherry Hills Village, 180 Colo.
217, 225, 504 P.2d 344, 348 (1972). Conse-
quently, zoning ordinances are frequently
npheld as valid exercises of police power to
regnlate matters of public health, safety
and welfare. Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71
L.Ed. 303 (1926); Baum v. City & County
of Denver, 147 Colo. 104, 363 P.2d 688
(1961); Colby v. Board of Adjustment, 81
Colo. 344, 255 P. 443. Zoning decisions of
670 Colo.
759 PACIFIC REPORTER, 2d SERIES
a municipal authority are presumed valid,
Board of County Comm'rs v. Mountain
Air Ranch, 192 Colo. 364, 563 P.2d 341
(1977); Wright v. City of Littleton, 174
Colo. 318, 483 P.2d 953 (1971); Baum v.
City & County of Denver, 147 Colo. 104,
363 P.2d 688, and a party challenging the
constitutionality of a zoning ordinance nor-
mally bears the burden of proving the as-
serted invalidity beyond a reasonable
doubt, Sellon v. City of Manitou Springs,
745 P.2d 229; Tri-State Generation &
Transmission Co, v. City ofThornt~n, 647 .
P.2d 670 (Colo.1982); Holcomb v. City &
County of Denver, 199 Colo. 251, 606 P.2d
858 (1980); Ford Leasing and Dev. Co. v.
Board of County Comm'rs, 186 Colo. 418,
528 P.2d 237 (1974); Baum v. City &
County of Denver, 147 Colo. 104, 363 P.2d
688. The discretion of a municipality to
'promulgate zoning regulations is by no
means absolute, however, but is subject to
constitutional limitations applicable to all
governmental legislative decisions. See
Moore v. City of East Cleveland, 431 U.S.
494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).
In view of the . tension inherent. in these
general principles, determination of the ap-
plicable test by which challenged zoning
legislation is to be evaluated becomes a
critical threshold issne. If an ordinance
restricts a fundamental right or creates a
suspect class, its constitutionality is to be
measured by application of a heightened
standard of inquiry into the purposes and
effects of the ordinance. See, e.g., San
Antonio Indep. School Dist. v. Rodriguez,
411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16
(1973); Shapiro v. Thompson, 394 U.S.
618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969);
United States v. O'Brien, 391 U.S. 367, 88
S.Ct. 1673, 20 L.Ed.2d 672 (1968); Tassian
v. People, 731 P.2d 672 (Colo.1987); Lujan
v. Colorado State Bd. of Educ., 649 P.2d
4. A third standard. that of intermediate review,
has been employed by the Supreme Court to
review a variety of other classifications which
do not impinge a fundamental right or create a
suspect class, but which infringe upon impor-
tant interests. See, e.g., Pickett v. Brown, 462
U.S. t, 103 S.Ct. 2199. 76 L.Ed.2d 372 (1983);
Plyler v. Doe, 457 U.S. 202. 102 S.Ct. 2382, 72
L.Ed.2d 786 (1987); Kirchberg v. Feenstra, 450
U.S. 455, 101 S.Ct. 1195, 67 LEd.2d 428 (1981);
Trimble v. Gordon, 430 U.S. 762. 97 S.Ct. 1459.
1005 (Colo.1982). An ordinance of this type
will survive a constitutional challenge
mounted on substantive due process or
equal protection grounds only upon a show-
ing by the government that the regulation
is snitably tailored to serve a compelling
state interest. City of Cleburne v. Cle-
burne Living Center, 473 U.S. 432, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985); Village
of Belle Terre v. Boraas, 416 U.S. 1, 94
S.Ct. 1536, 39 L.Ed.2d 797 (1974); Rade-
man v. City & County of De1J..ver, 186
Colo. 250, 526 P.2d 1325 (1974). Zoning
classifications which do not infringe npon
fundamental rights or create suspect classi-
fications are generally measured by the
less demanding rationality standard. Un-
der this standard, the legislation will be
upheld if the purpose of the enactment is
valid and the terms of the ordinance are
rationally related to that governmental
goal. Village of Belle Terre v. Boraas,
416 U.S. 1, 94 B.Ct. 1536, 39 L.Ed.2d 797;
Tassian v. People, 731 P.2d 672; People v.
Velasquez, 666 P.2d 567 (Colo.1983), ap-
peal dismissed, 465 U.S. 1001, 104 S.Ct.
989, 79 L.Ed.2d 223 (1984); Hademan v.
City & County of Denver, 186 Colo. 250,
526 P.2d 1325.' Because zoning ordinances
by necessity limit the exercise of individual
concepts of appropriate living arrange-
ments, decisions as to which interpersonal
relationships should be considered funda-
mental rights for purposes of constitutional
protection are of the utmost importance.
B
[8J In Village of Belle Terre v. Boraas,
416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797
(1974) (hereinafter Belle Terre), a landlord
who had received an "Order to Remedy
Violations" after renting his house to six
52 LEd.2d 31 (19n). Under this standard, the
government must establish that a classification
serves an important governmental interest and
is substantially related to the achievement of
those objectives. This court has previously uti-
lized this intermediate standard of review in
evaluating challenges to statutory classifications
based on gender. See Austin v. Litvak, 682 P.2d
41 (Colo.1984); R.McG. v. 1 J.v., 200 Colo. 345.
615 P.2d 666 (1980),
.;(.
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.
ZAVALA v. CITY AND COUNTY OF DENVER
CIte as 759 Pold 664 (Colo. 1988)
Colo. 671
ir:.ance of this type
::J.tional challenge
due process or
only upon a show.
"at the regulation
:~rve a compelling
CZeburnev. Cle-
.73 U.S. 432, 105
:3 (1985); Village
:S, 416 U.S. 1, 94
-97 (1974); Rade-
;; 0/ Denver, 186
'5 (1974). Zoning
not infringe upon
:2.te suspect c1assi.
measured by the
ty standard. Un-
,egislation will be
~he enactment is
:he ordinance are
:-:Iat governmental
Terre v. Boraas,
i, 39 L.Ed,2d 797;
,2d 672; People v.
7 (Colo.1983), ap-
.), 1001, 104 S.Ct.
;84); Rademan v.
'er, 186 Colo. 250,
: zoning ordinances
2rcise of individual
2 living arrange-
;hich interpersonal
considered funda-
as of constitutional
:tmost importance.
college students challenged the validity of
an ordinance restricting land use through-
out the entire village to those related by
blood, adoption or marriage. Three of the
tenants joined the landlord's challenge.
The ordinance also allowed use of land in
the village by not more than two unrelated
persons living together as a single house-
keeping unit. The plaintiffs argued that
the ordinance violated their rights of, inter
alia, equal protection and travel. The
Court rejected application of a heightened
standard of review becanse it detennined
that the claims involved "no fundamental
right guaranteed by the Constitution, such
as the right of association, or any right of
privacy," Belle Terre, 416 U.S. at 7, 94
S.Ct. at 1540 (citations omitted). Applying
the rational relationship test, the Court
concluded that the challenged restriction
waS reasonably related to a valid govern-
mental purpose-.cfurthering the family
needs of the village. The majority opinion
expressly rejected the argumer.t that the
ordinance displayed animosity toward un-
married couples living together by noting
that the ordinance's definition of "family"
included two unmarried people.
In Moore v. City 0/ East Cleveland, 431
U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531
(1977), the Court applied a heightened scru-
tiny standard in holding unconstitutional a
municipal ordinance under which a home-
owner was convicted of criminal conduct
for pennitting her grandson to live in her
household. The ordinance restricted occu-
pancy of single family residential dwelling
units to certain classes of family members
related to the head of the household by
consanguinity or marriage. Grandchildren
of either a head of a household or the
spouse of a head of a household were un-
der certain circumstances defined as family
members.5 Other grandchildren of a head
of the household, such as the grandson
involved in the ,!foore case, who did not fall
within this narrow classification were not
deemed family members.
Four members of the Court applied a
heightened scrutiny analysis and concluded
that East Cleveland's ordinance violated
the homeowner's substantive due process
right to make choices concerning family
living arrangements. Belle Terre and its
conclusion that the rational relationship
test governed the constitutional challenges
asserted against that zoning ordinance was
distinguished on the ground that the Belle
Terre ordinance governed only unrelated
individuals. The four justices determined
that East Cleveland's regulation of what
family members could live together only
minimally furthered the stated ohjectives
of the ordinance to reduce traffic and park-
ing congestion, prevent overcrowding 'and
avoid undue financial burdens on the citis
school system. Justice Stevens, in a con~
curring opinion, found the ordinance un-
precedented in its restriction of the funda-
mental right of property owners to decide
who may reside on their property.
In City 0/ Cleburne v. Cleburne Living
Center, 478 U.S. 432, 105 S.Ct. 3249, 87
L.Ed.2d 313 (1985), the Court concluded
that ~ zoning ordinance requiring an owner
Cd) Notwithstanding -the provisions of sub.
section (b) hereof, a family may include not
more than one dependent married or unmar-
ried child of the nominal head of the house-
hold or of the spouse of the nominal head of
the household and the Spouse and dependent
children of such dependent child. For the
purpose of this subsection, a' dependent per-
son is one who has more than fifty percent of
his total suPpOrt furnished for him by the
nominal head of the household and the
Spouse of the nominal head of the household.
(e) A family may consist of one individual.
Moore v. City of East Cleve/and, 431 U.S. 494,
496 n. 2, 97 S.Ct. t932. 1934 n. 2, 52 LEd.2d 531
(1977).
!e Terre v. Boraas,
:6, 39 L.Ed.2d 797
Terre), a landlord
Order to Remedy
~ his house to six
5. The East Cleveland ordinance provided as fol-
lows:
"Family" means a number of individuals
related to the nominal head of the household
or to the spouse of the nominal head of the
household livirigas a single housekeeping unit
in a single dwelling unit, but limited to the
follOwing: .
(a) Husband or wife of the nominal head of
the household.
(b) Unmarried children of the nominal
head .of tbe household or of the spouse of the
nominal head of i,he household, provided,
however, that such unmarried children have
no children residing with them.
(c) Father or mother of the nominal head
of the household or of the spouse of the nom.
inal head of the household.
759P.2d-1€
der this standard, the
) that a classification
nmental interest and
the achievement of
rt has previously uti-
mclard of review in
HUlOry classifications
in v. Litvak, 682 P.2d
1. t.v., 200 Colo. 345,
7r.u P ACIF'IC REPORTER 2d SERIES
of a building designed U, . . ' .
dential units for mentall proVIde reSl- appropriate for measuring the challenged
to obtain a special Y retarded persons legislation. - Our comment in Rademan
equal protection rightsu,,~ permit violated that "[e)ven though the rights of freedom
persons who were its ;:o~he. handicapped of association and of privacy are cherished
The Court rejected the ar ntial resIdents. rights, they must yield as we view the
tai retardation constituti,:rument that men- Constitution, to v:llid zoning regulations,"
classification requiring " ".quasl-suspect Rademan. ,186 Colo. at 254, 526 P.2d at
heightened stand d f PphcatlOn of a 1327, may be read as merely recognizing
. ar . 0 review AI'
the rational relationship I.<,.t . pp ymg that even fundamental rights may be regu-
Court concluded that th. . '. however, the lated to some extent by appropriate legisla-
further any legitimate .. ordmance did not tion, so long as the legislation survives
d," InU,rest of the city J' f h' ht d d
an , w,erefore, denied equal te t' f app Ication 0 a ",g ene stan ard of r...._
the law to the plaintiff. I pro cIOn. 0 view and is, therefore, constitutionally per-
opinion, Justice Stevens' r n a concumng missible. This diets may also be read as
Court's selection of stan~~;7srved that the merely reflecting the ultimate conclusion
measure zoning legislatio by whIch to that the particular rights asserted by the
viewed as rigid formul""n ~hould not be Rademan plaintiffs were not impermissi_
efforts to articulate jUdicial ut rather as bly restricted by the challenged ordinances.
varying,: classification scheme resronses to The comment do"" not suggest that any
rate :concurring and dilSlSen~i n a .s:pa- zoning ordinance must be upheld automati-
three justices articulated th ng opmlOn, cally as a valid exercise of legislative au-
heightened scrutiny test.h e VIew that a thority in the face of any constitutional
applied to invalidate Clebu~UI~ ha~ been challenge. Each =e requires careful as-
on its face. e s or ance sessment of the p:u1:icular right asserted
Our decision in Radema O' and specific conclusions regarding the pur-
Oounty of D ' 186 Co n v. ,ty & poses of the ordinance, no matter what
enver, 10. 250 526 P 2d
1325 (1974), was issued pri ' '. constitutional standard is deemed appropri-
sions in Moore and Oleb Or to the decl- ate.
man, the plaintiff Urne. In Rade-
s asserted viol ti f
allegedly fundamental ri"h'- a o~s 0
d to. , '" to pnvacy
an h /ssThoclate freely with whomever they
W1S e. ey also asserted . .
eqnal protection rights becau~ VIoia~~n ~f
legedJy arbitrary distinction b e 0 e ~-
. I d . . etween falIDI-
la an non-famIlial relationssh' .
within the ordinances. Rei ilPS contamed
Terre, we concluded that ih:g on S.ell~
claims involved no fundamental plamtiffs
that the ordinance should be nghts and
the rational relationship 'la measured by
cause we concluded that the or~dard. Be-
reasonably related to its . mance :vas
ti "".erted legISla-
ve purposes of promotin" fa'l I
d tin ":> mlyvaues
an crea g places free fro .
and Over P I ti' m congestion ,
- opu a on, we rejected th I'
tiffs' claims. e P am-
As the decisions of the SUpre C .
B II '" me ourtm
e e "erre, Moore and CI b
assertions th t .. e urne reveal,
a a particular . d'
nanceviolates d ZOnIng or 1-
ue procesij Or eq 1 te
tion guarantees must be exa ua pro . c-
great care to determine ' mmed WIth
- , what standards are
672 Colo.
C
[9J When the .ppellants' allegations
that sections 59--1Q:J:1)(b) and 59--2(131) of
the Code violate their constitutioua] rights
to due process of l.w are viewed from the
pempecti,-e of thiS :UlaJytical framework, it
is clear that the di$trict courfs order fails
to provide sufficient guidelines for appel-
late review. Although a trial court need
not make detailed Endings and conclusions
in every =e, a fir.s.l judgment must con- '
lain sufficient infor:uation to permit a re-
viewing court to det.;:'rntine whether proper
legal standards we!'>> in fact applied. Man-
or Vail CundominiJ<m Ass'n v. Town of
Vai~ 199 Culo. 62. tJO.j P.2d 1168 (1980).
The distri<t court bere simply held that
our decision in R~n v. Oity & County
of Denver, 186 eo;".. 250, 526 P.2d 1325
(1974), required d<ciaJ of the appellants'
constitutional claim;. We bave already
noted that Rademan dealt with a different
living 3rnl.llgement, :hat its comment con-
;1
,I
i
f:
,[;
1m
f:;:
ZA V ALA v. CITY AND COUNTY OF DENVER
CICeas759 P.2d 664 (Cola. 1988)
Colo. 673
,ring the challenged
,rnent in Rademan
ce rights of freedom
)rivacy are cherished
;~id as we view the
zoning regulations,"
at 254, 526 P.2d at
i merely recognizing
1 rights may be regu-
.' appropriate legisla-
:'2~"islation survives
:ened standard of re-
, constitutionally per-
,nay also be read as
ultimate conclusion
,hts asserted by the
J::!!"e not irnpermissi.
..llenged ordinances.
Jt suggest that any
be upheld automati-
se of legislative au-
f any constitutional
r-equires careful as.
cular right asserted
s regarding the pur-
;.:e, no matter what
j is deemed appropri-
cerning the relationship' between zoning or.
dinances and fundamental rights does not
resolve the issue presented by the appel-
lants, and that due process and equal pro-
tection challenges to municipal zoning ordi-
nances demand careful analysis to deter-
mine the applicable constitutional standard.
For example, while the appellants' general
allegations of violations of rights of associ-
ation, privacy and use of property may
appear identical to the rights alleged to
have been infringed in Rademan, closer
examination of the appellants' claims sug-
gests there are significant differences.
The appellants here appear to equate
their particular rights of association and
privacy to an asserted right to be free not
to marry each other. The appellants also
appear to assert a substantive due process
right to use their property as they choose,
although the extent of this right is not
clear from the pleadings. They find sup-
port for their argument that the right not
to marry is a fundamental right, requiring
application of a heightened level of scruti-
ny to sections 59-102(1)(b) and 59-2(131) of
the Code, in the decision of the Court of
Appeals in Beeson v. Kiowa County
School District BE-I, 39 Colo.App. 174,
567 P.2d 801 (1977). In Beeson, the court
determined that the decision to create a
marriage relationship is a fundamental
right firmly grounded in the public policy
of this state, as articulated by the General
Assembly. See S 14-12-101, 6B C.R.S.
(1987). The court then held that a school
district policy prohibiting married students
from participating in extracurricular activi-
ties served no compelIing state interest
and, therefore, improperly discriminated
against married students on the basis of
their married status, in violation of the
equal protection clause of the fourteenth
amendment to the United States Constitu-
tion. Beeson does not, therefore, supply
direct support for the assertion that the
right not to !narry is a fundamental right.
Furthermore, even fundamental rights
may in some circumstances be limited by
governmental action. See Anderson v. Ce-
lebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75
L.Ed.2d 547 (1983); Bademan v. City &
County of Denver, 186 Colo. 250, 526 P.2d
1325 (1974). The absence of specific find-
ings with regard to the extent the ordi-
nances here challenged in fact abridge the
appelIants' asserted rights prevents any
resolution of this issue at this time.
Findings concerning the purposes served
by the ordinances are also instructive in
determining to what extent the ordinances
abridge the appelIants' constitutional
rights. The appelIants argue that the ordi-
nances were adopted t.o regulate a particu-
lar code of morality. The City indicates in
its brief on appeal that the ordinances were
designed to encourage family values. The
general basis for adoption of the Code is, of
course, the City's authority to "preserve
and promote the public health, safety and
welfare of the inhabitants of the city, and
of the pnblic generally, and to encourage
and facilitate the orderly growth and ex-
pansion of the city." Denver, Cola.Rev.
Mun.Code S 59-1 (1982). In view of this
disagreement, the district court is in the
best position to determine precisely what
purposes these ordinance were designed to
serve.6
pellants' allegations
jib) and 59-2(131) of
constitutional rights
are viewed from the
,lytical framework, it
ct court's order fails
guidelines for appel-
h a trial court need
jugs and conclusions
judgment must con-
ition to pennit a re-
mine whether proper
n fact applied. Man-
m Ass'n v. Town of
04 P.2d 1168 (1980).
ere simply held that
zn v. City & County
250, 526 P.2d )325
] of the appellants'
We have already
ealt with a different
at its comment con-
The parties also dispute_ the extent to
which the single unit dwelling provisions of
the Code restrict the appelIants' ability to
own and occupy a residence in Denver.
The appelIants assert that because the defi-
nition of IIsingle unit dwelling" found in
section 59-2(131) of the Code applies to all
residential zoning classifications, they
could not own and occupy a single-family
home anywhere in Denver. Although they
acknowledge that certain residential zoning
districts include as a I<permitted home occu~
pation" the Hroomingand/ or boarding/I of
a certain number of people,7 they suggest
7. Four of the residential zoning districts in Den-
ver do not allow for permitted home occupa-
tions, including "rooming and/or. boarding."
See Denver, Colo.Rev.Mun.Code 9 59-233
(1982) (R-X districts); 9 59--222 (1982) (R-5
districts); 9 59-87(4) (1982) (RS-2 districts);
6. For example, the ordinances appear to permit
a man and a woman, not married to each other,
and perhaps even. married to other. persons, to
reside in an R-4 zone if they happen also to be
the father and mother of a child and the child
resides with them.
r)
674 Colo.
759 PACIFIC REPORTER, 2d SERIES
f\
j
sueh exception does not apply to their liv-
ing arrangement. Even if a home occupa-
tion use exception might be available to the
appellants in Some other area of Denver,
neither the district court's order nor the
record indicates the extent to which per-
mits for such a use are in practice available
to persons such as the appellants or how
difficult the application process might be.
We, therefore, cannot determine how much
of the City's residential dwelling areas re-
main inaccessible to the appellants. Factu-
al findings concerning the pervasiveness of
the asserted restrictions are, of course,
highly relevant to any determination of
whether the means chosen by the City to
achieve its policy are constitutionally per-
missible. The district court is in the best
position to make sueh findings.
IV
The district court erred in concluding
that our decision in Rademan v. City &
County of Denver, 186 Colo. 250, 526 P.2d
1325 (1974), antomatically barred the appel-
lants' claims that sections 59--2(131) and
59--102(1)(b) of the Code violated their con-
stitutional rights. The record does not sup-
port the appellants'assertion that the en-
forcement of the ordinance against them
resulted in violations of their rights to pro-
cedural due process of law or equal protec-
tion of the law under the United States or
Colorado Constitutions or that the appel-
lees' actions in enforcing the ordinances
against them were arbitrary, capricious or
constituted abuses of discretion. However,
in the absence of findings and conclusions
concerning the extent of the rights assert-
ed by the appellants, the purposes of the
~ 59-103(4) (1982) (RS-.4 districts). In R-3.
R-o and R-4 districts. some home occupations
are authorized upon the issuance of a permit,
however, "rooming and/or boarding" is not one
of those specifically enumerated. gg 59-117(4)
(1982), 59-177(4) (1982), 59-207(4) (1982). In
R-3 and R-4 districts. "rooming and/or board.
ing" could conceivably be approved as an autho-
rized home occupation under the broad ss 59-
177(4)(a)(1l) and 59-207(4)(a)(IO) catch-all
home occupation dauses. The remaining resi-
dential districts in Denver do authorize "room-
ing and/or boarding" as a permitted home oc-
cupation under certain circumstances. See
~ 59-132(4)(a)(10) (1982) (allowing. upon is-
ordinances, and the extent of the ordi-
nances/ prohI'bitions throughout Denver,
furthel; r~view of the district court's judg-
ment is inappropriate.
For the foregoing reasons, the district
court's judgment is affirmed in part and
reversed in part, and the case is remanded
to the district court for further proceedings
consistent with this opinion.
ERICKSON, J., specially concurs.
WHR and VOLLACK, JJ., join the
concurrence.
ERICKSON, Justice, specially
concurring:
I specially concur in the judgment revers-
ing the district court and remanding the
case for further proceedings. I write sepa-
rately because, as I view the record, it is
only necessary for the district court on
remand to determine the availability of oth-
er zoning districts where the appellants
conld cohabit as an unmarried couple in a
single-unit dwelling. It is unnecessary for
the trial court to make further findings
concerning the nature and extent of the
rights asserted by appellants and the pur-
pose of the zoning ordinances.
I agree with the majority that our hold-
ing in Rademan v. City & County of Den-
ver, 186 Colo. 250, 526 P.2d 1325 (1974),
does not control this case. At the time
Rademan was decided, we only had Vil-
lage of Belle Terre v. Boraas, 416 U.S. 1,
94 S.Ct. 1536, 39 L.Ed_2d 797 (1974), to
guide us. Since Rademan, the United
States Supreme Court has considered con-
stitutional challenges to zoning ordinances
in Moore v. City of East Cleveland, 431
suance of a permit, the "rooming and/or board.
ing" of tiot more than two persons in R...l dis.
tricts if the single-unit dwelling does not Contain
more than one kitchen); s 59-147(4)(a)(10)
(1982) (authorizing, upon issuance of a permit,
the "rooming and/or boarding" 'of not more
than two persons in R-2 districts);
S 59-162(4)(a)(10) (1982) (authorizing. upon is.
suance of a permit, "rooming and/or boarding"
of not more than two persons in R-Z-A dis-
tricts); S 59--192(4)(a)(10) (1982) (authOrizing,
upon issuance of a permit, the "rooming and/or
boarding" of not more than two persons in
R-3-X districts).
,.,
,
,
"ent of the ordi-
:-'jughout Denver,
$trict court's judg-
3.S0DS, the district
irmed in part and
e case is remanded
'urther proceedings
~il)n.
concurs.
I, JJ., join the
specially
e judgment revers-
.nd remanding the
:ngs. I write sepa~
w :.!1e record, it is
district court on
availability of oth-
ere the appellants
:1arried couple in a
is l.1nnecessary for
e further findings
and extent of the
!Jants and the pur-
:nances.
)rity that our hold-
& County of Den-
i P,2d 1325 (1974),
'ase. At the time
we only had Vil-
'Joraas, 416 U.S. 1,
L2d 797 (1974), to
eman, the United
.1as considered can-
-, zoning ordinances
u.st Cleveland, 431
ooming and/or board-
10 persons in R-l dis-
elling does not contain
,); S 59-147(4)(a)(tO)
issuance of a permit.
larding" of not more
in R-2 districts);
(authorizing, upon is.
ling and/or boarding"
~rsons in R-2-A. dis-
) (1982) (authorizing,
, the "rooming and/or
than !\Va persons in
ZAVALA v. CITY AND COUNTY OF DENVER Colo. 675
Cite as 759 P.2d. 664 (Colo. 1988)
U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 RS-4, di.strict but anywhere else in Denver.
(1977) (plurality opinio~), and City of Cle- It is unclear whether section 59-2(121),
burne v. Cleburne L,mng Center, 473 U.S. which authorizes the granting of permits
432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). allowing unrelated parties to reside in the
In light of these cases,. the determination same single-unit dwelling, applies to appel-
whether ':'IUlmal or strict scrutmy .~pplIes lants' living arrangement. In addition, the
m a particular case IS fact speclIIc and joint stipulation entered into by the parties
dep~nds solely ,on the nature of the right does not locate and delineate those areas
mfnnged by the zOUlng ordinance, see City zoned to enable appellants to acquire a
(of tClebfrnb e: 473 U.S. 4321,.ld05 S.Ct 3249 permit under section 59-2(121). According-
~a lOna aSl~ scru~my app Ie to ordmance 1y, I agree that the case must be remanded
dIsparately Impacting mentally retarded for additional factual findings under C.R.C.
perso~s); Moore~ 431 U.S. 494: 97 S.:t. p, 57 to identify' and locate the different
~32, 02 L.E~:2d 031 (strict scrutmy applIed zoning districts in Denver and to determine
zODmg ~r mance re~tricting freedom of for each zoning district the extent to which
blood relatives to aSSOCIate), and the degree the zoning ordinances would permit appel-
to whIch the statutory scheme places dis- lants to cohabit as an unmarried couple in a
proportionate burdens on a suspect class, single-nnit dwelling
see. Village of Belle Terre, 416 U.S. at 6, 94 '. .
S.Ct. at 1539 ("If the ordinance segregated In my V1."W, thIs. court may resolve the
one area only for one race, it would imme- re,roammg Issues Wl~o~t a remand to the
diately be suspect..,. "); Buchanan v. trial court. The majorIty remands for a
Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. determination of both the nature and ex-
149 (1917) (invalidating city ordinance bar- tent of the nghts asserted by appellants
ring a black from acquiring real property and the purpose of the ordinances. As I
in a white residential area). According to read the record and the briefs, it is unnec-
the majority, 'I[f]indings concerning the e,ssary to remand the cas~ for a clarifica-
purposes served by the ordinances are ... tion of the nature and extent of the rights
instructive in determining to what extent asserted by appellants. In their complaint,
the ordinances abridge the appellants' con- appellants, attacked section 59-2(131) for
stitutional rights," Majority opinion at the followmg reasons;
673. As I read this language and Village a. The ordinances deprive the plaintiffs
of Belle Terre and its progeny, the purpose of their rights of freedom of association
of the zoning ordinance is only considered and privacy by creating _an nnconstitu-
after a court ascertains the appropriate tional, iJ;rebuttable presumption that the
standard to review the constitutionality of plaintiffs' sharing of this house is immor-
the legislation. See generally J. Nowak, al or somehow nnsafe for the people of
R. Rotunda & J. Young, Constitutional the State of Colorado, without showing a
Law 596 (2d ed. 1983) (discussing applica- compelling state interest.
tion of strict scrutiny standard to review b. The ordinances deprive the plaintiffs
constitutionality of statutes). of the nse and enjoyment of their proper-
I also agree with the majoritv that we ty without due process of law becanse
cannot determine which standard of scruti. the ordinance is both over- and under-in-
ny applies since the maguitude of the ordi- elusive. It therefore is not reasonably
nance's impact on the alleged rights of the related to the achievement of a rational
appellants, Norma L. Dotson and Ysidro M. state goal.
Zavala, is unclear. The parties do not c. The ordinance deprives the plaintiffs
agree, and based upon the record we can- of their right to equal protection of the
not determine, whether the single-unit laws of the State of Colorado to protect
dwelling restriction, see Denver, Colo. Rev. their property because it singled them
Mnn.Code S 59-2(131) (1982), prevents ap- out for enforcement.
pellants from residing as an unmarried cou. In their opening brief, appellants elarify
pie in'a 'single-unit dwelling not only in an their position by arguing that their rights
676 Colo.
at 1541 (recognizing "family values" as
valid purpose of zoning ordinance).
In my view, remanding the case to the
district court for a determination of the
nature and extent of rights asserted by
appellants and the purpose behind the zon-
ing ordinance is unnecessary and creates
needless confusion for the parties and the
trial court. Accordingly, I would reverse
and remand for the sole purpose of deter-
mining the availability of other zoning dis-
tricts where the appellants could cohabit as
an unmarried couple in a single-unit dwell-
ing.
I am authorized to say that Justice
LORR and Justice VOLLACR join in this
special concurrence.
1
1
J
i
it
~i
:ic.",
759 PACIFIC REPORTER, 2d SERIES
of association and privacy were violated
because the zoning ordinance infringed
upon their right to choose not to be mar-
ried. They contend that an inherent ele-
ment of a fundamental right to marry, see
Beeson v. Kiowa County School Dist. RE-
I, 39 Colo.App. 174, 567 P.2d 801 (1977)
(decision to create marriage relationship is
a fundamental right grounded in the public
policy of Colorado), is the freedom to
choose whether to exercise the right. Ac-
cording to appellants, by prohibiting cohab-
itation of unmarried couples, the zoning
ordinance impinges upon that fundamental
right. If the decision not to marry is not a
fundamental right, they assert that an ordi-
nance prohibiting unmarried couples from
cohabiting in a single-unit dwelling is un-
constitutional under a minimal standard of
scrutiny. See Israel v. AI/en, 195 Colo,
263, 577 P,2d 762 (1978) (statute prohibiting
marriage between adopted brothers and
sisters unconstitutional under minimal
standard of scrutiny). In my view, the
bases of appellants' constitutional attacks
on the .zoning ordinance are .clear and do
not require further factual clarification on
remand.
Based on the record, it. is also unneces~
sary to remand. the case to determine the
purpose behind the zoning ordinance, It is
axiomatic that issues of statutoryinterpre~
tation and the concomitant determination
of a statute's purpose are questions of law
which may be resolved by appellate courts,
In this case, the plain language of the
zoning ordinance and the purpose ot the
ordinance stated in Denver, Colo.Rev,Mun.
Code & 59-I unambiguously establish that
the zoning ordinance is intended to promote
and preserve traditional family values by
encouraging families to live in certain zon.
ing districts throughout the city of Denver,
The zoning districts delineated for families
prohibit commercial uses of property,
thereby creating areas free from crowds,
parking problems, and traffic congestion.
See Moore, 431 U.S. at 500, 97 S.Ct. at 1936
(use of zoning ordinance to reduce over-
crowding, traffic congestion, and parking
problems is valid legislative purpose); Vil~
lage of Belle Terre, 416 U.S. at 9, 94 S,Ct.
w
o ~ KEY HUMBU SYSTEM
T
The PEOPLE of the State of Colorado,
Plaintiff-Appellee,
v.
Olga Mae PRA'IT, Defendanl-Appellan
No. 86SA401.
Supreme Conrt of Colorado,
En Banc.
!
i
!i
I
~!
July 5, 1988.
Rehearing Denied Aug. 8,
Defendant was convicted in the .__
trict Court, EI Paso County, Joe E. Canno.
J., of. accessory to crime and conspiracy::~
commit accessory to crime, and she app
ed. The Supreme Court, Mullarkey;
held that: (1) prosecutor's improper cr,i>.
examination of defense 'Witness an~,:: l
tense character witnesses was rev~~
error; (2) use of word "might," in def' .
rendering assistance for purposes o~~.
sorv statute to include by force,~;j,in.
~ .- '-~ "
dation, or deception, obstructing anyCJ.
performance of any act which mig~
discovery, apprehension, or convi
such person, did not render acces
k'
John Worcester, O~M 3/18/97 , Re: Stage 3
.........
I I
X-Sender: johnw@commons.aspen.co.us
Date: Tue, 18 Mar 1997 13:04:08 -0700
To: Suzanne Wolff <suzannew@comdev.aspen.co.us>
From: John Worcester <johnw@commons.aspen.co.us>
Subject: Re:, Stage 3
Suzanne
I sent an e-mail to Julie (I think) some time ago indicating that the
applicant could not amend for the reason you state.
John
At 11:52 AM 3/19/97 -0700, you wrote: '
>1 understand that you are mostly out of town for awhile, but might be
>passing through... I was wondering if you had made any determination
about
>the applicant's ability to amend the application before it goes back to
the
>Growth Management Commission for rescoring. Code says "An applicant shall
>only amend an incomplete application to make technical corrections or
>clarifications..." (26.100.060.C.3). The application was deemed complete
>previously, so I guess I assume that they cannot amend.
>I'm doing some research on their affordable housing mitigation, which may
>require the applicant to make a correction to the application, but I don't
>have enough info yet to make that determination.
>Thanks
>
>
>
John P. Worcester
City Attorney
~r~nted tor suzanne Wolff <suzanneW@comdev.aspen.co.us>
11
r1
n
~, ...;
LAW OFFICES
HILL, EDWARDS, EDWARDS & ADKISON, L.L.C.
CENTENNIAL PLAZA BUILDING
502 MAIN STREET, SUITE 201
CARBONDALE, COLORADO 81623
TELEPHONE
(970) 963-3900
FACSIMll...E
(970)963-3131
THOMAS C. HilL
JOSEPH E. EDWARDS, JR., P.C.
JOSEPH E. EDWARDS, III
THOMAS L. ADKISON
March 13, 1997
Suzanne Wolf
Community Development Department
130 South Galena
Aspen, CO 81611
RE: Stage 3
Dear Suzanne:
Please let me know when the Stage 3 Penthouse application is scheduled for rescoring by the
GMQS Committee pursuant to the remand by the joint Appeal Committee on March 11, 1997.
I would also appreciate receiving a copy of any memos that either the Community Development
Department or the City Attorney's office promulgate regarding this application and any further
presentations or information from the applicant.
Thank you in advance for your cooperation.
Very truly yours,
& ADKISON, L.L.C.
JE2:caw
cc: Concept 600 Board of Manage s
concept\lwolf.Ol
~ ...
~Stan Clauson, :0::21 'J~/;'T/97 , Re: Stage 3 ap!' "1
X-Sender: stanc@comdev.aspen.co.us
Date: Thu, 27 Feb 1997 11:21:05 -0700
To: Suzanne Wolff <suzannew@comdev.aspen.co.us>
From: Stan Clauson <stanc@comdev.aspen.co.us>
subject: Re: Stage 3 appeal
No. I'd simply outline the standard options and then note that additional
options such as that requested by the applicant may also be considered.
Stan
At 10:48 AM 02.27.1997 -0700, you wrote:
>Stan _ so I don't need to make a recommendation on the remedy? SW
>
>At 10:40 AM 2/27/97 -0700, you wrote:
>>Hard to say. I think it will depend on the case Alan makes.
know
>>of any predisposition one way or the other.
>>
>>Stan
>>
>>At 11:52 AM 02.26.1997 -0700, you wrote:
>>>What's the feeling on Alan Richman's request that the Council/Board
remand
>>>to City P&Z only and not the joint Growth Mgmt Commission? Cindy - I'll
put
>>>a copy of the notice of appeal in your mailbox so you can read Alan's
>>>justification for the request. Stan - did you keep a copy, or do you
need
>one?
I don't
>>>
>>>
>>>
>>Thanks very much,
>>Stan Clauson
>>Community Development Director
>>
>>
>>
>
>
>
Thanks very much,
Stan Clauson
Community Development Director
[pr~nted tor suzanne Woltt <suzanneW@comdev.aspen.co.us>
1
i.........l.
Qtan Clauson, 11:27 ,,__ 2/19/91
Stage III Appea Request
X-Sender: stanc@comdev.aspen.co.us
Date: Wed, 19 Feb 1997 11:27:22 -0700
To: Amym@aspen.co.Us, tomn@aspen.co.us, cindyh@aspen.co.us,
suzannew@aspen.co.us
From: Stan Clauson <stanc@comdev.aspen.co.us>
subject: Stage III Appeal Request
Cc: juliew@aspen.co.us, johnw@aspen.co.uS
Alan Richman filed a request for appeal to a joint meeting of the City
Council/BOCC for the proposed Stage III project which was denied by the
Joint Growth Management Commission on 14 January 1997. An earlier appeal
request was sustained by the City Council on 10 February 1997, with a
finding that in not providing a draft AND final scoring for the proposed
project, the correct procedure was not followed.
The next prescribed step in the appeal process is to a joint CC/BOCC
meeting. This appeal request was filed on 18 February, requiring that the
joint meeting take place no later than 20 March 1997. A quorum of both the
CC and BOCC is required for the meeting.
The joint meeting may deny the appeal, or may either take up the substance
of the application and grant the requested allocation, remand the issue to
the Joint Growth Management Commission, or provide some other form of
relief
or review. The appellant is specifically asking that the joint CC/BOCC
meeting take up the substantive issues and rescore OR remand the case to
the
Aspen P&Z only. Either approach appears to be within the range of
possibilities offered by the code.
Staff needs your assistance is scheduling a joint meeting of the City
Council and Board of County commissioners to take up this matter on or
before 20 March 1997. Suzanne Wolff will be the caseload planner assigned
to the matter and will prepare a memo detailing the issues for the joint
meeting. Please contact Suzanne or myself regarding scheduling
possibilities as soon as possible.
Thanks very much,
Stan Clauson
Community Development Director
<suzanne
~
f\
, J
FES
'C,"~j7
t1:,
MEMORANDUM
TO:
Aspen City Council
THRU:
Amy Margerum, City Manager C.l.' /
Stan Clauson, Community Development Director c.'"JC,./
FROM:
Suzanne Wolff, Planner
RE:
Stage 3 Penthouses - Appeal of 1996 Metro Area Residential GMQS Scoring
DATE:
February 10, 1997
SUMMARY: George Carisch, represented by Alan Richman, has submitted an appeal of the Growth
Management Commission's scoring of the Stage 3 Penthouses application, The notice of appeal requests
that the City Council overturn the Growth Management Commission's scoring based on a denial of due
process. If Council overturns the scoring, the applicant would then have the opportunity to appeal to the
joint City Council/Board of County Commissioners to remedy the Growth Management Commission's
action.
The notice of appeal is attached as Exhibit A, and was received by the Community Development Director
within the required 14 day period,
BACKGROUND: The applicant requested one metro area residential GMQS allotment to develop one free
market dwelling unit above the Stage 3 Theaters, No other applications were received for the 1996 competition.
At the public hearing before the Growth Management Commission on January 14, 1997, staff presented
recommended scores to the Growth Management Commission, and recommended that the Commission
adopt these scores. Although adoption ofstaff's scoring'is not addressed in the procedures in the Code,
staff has presented this option in the past when there was no competition for allocations. Staff awarded the
project a total score of 12: the application met the minimum threshold score of three points for each of the
four growth management scoring criteria. The staff memo and score sheet are attached as Exhibit B.
After discussion of the criteria and staff's recommended scores, the Commission determined that they
wished to proceed with their own scoring rather than adopt staff's scoring. The Commission members then
scored the application individually and staff calculated final average scores for the four criteria. The tally
sheet of the Commission's scores is attached as Exhibit C. The application exceeded the minimum
threshold score of three in three of the scoring categories, but did not receive the minimum threshold score
of three in the "Maintaining design quality, historic compatibility and community character" category,
Section 26.100.060(C)(5) of the Aspen Municipal Code states, "No growth management allocation shall be
awarded to projects that do not receive a final average score of at least three points for each of the growth
management scoring criteria", therefore, the allocation was denied. The minutes from the Growth
Management Commission meeting on January 14, 1997, are attached as Exhibit D.
f"""'o"
r,
AUTHORITY TO REVIEW APPEAL: Section 26.100.060(0) of the Aspen Municipal Code provides,
1) Upon receipt of the Growth Management Commission's ranking of development
applications, the City Council shall consider any appeals made by persons aggrieved by
the scoring of the Growth Management Commission. The City Council's review of an
appeal shall be hmitedto determining whether there was a denial of due process or
abuse of discretion by the Growth Management Commission...
2) In reviewing an appeal, the City Council shall consider the development applications
based on the record established by the Growth Management Commission. The City
Council shall affirm the scoring of the Growth Management Commission unless it
determines that there was a denial of due process or abuse of discretion by the Growth
Management Commission in its scoring, in which case the City Council shall overturn
the Growth Management Commission's scoring of the application.
BASIS OF, APPEAL: The basis of the applicant's appeal is that the Growth Management Commission
did not complete all of the steps necessary to score a growth management application, as specified in the
Code, and that failure to complete these steps "denied the applicant the opportunity to have the application
fully and properly considered by the Commission and resulted in scoring errors by the members," Please
refer to the attached notice of appeal (Exhibit A) for a more specific discussion of the basis for the appeal.
The scoring procedures as specified in Section 26.100.060(C)(3) of the Code are provided below for
reference,
a. Each Growth Management Commission member shall assign a whole number score (not
a fractional number) to the project.
b. Following the initial scoring, commission members shall be free to discuss individual
scores and to offer justification for such scores.
co. Following the close of Growth Management Commission discussions regarding initial
scoring, a final scoring round will be held, during which each Growth Management
Commission member shall again identifY the number of points , expressed as whole
numbers, assigned to the project, Growth Management Commission members shall be
free to revise the number of points awarded to a project between the preliminary and
final scoring rounds,
d. Afier the close of the final scoring round, a project's final average score shall be
calculated by (1) totaling the commissioners' individual scores and (2) dividing that total
by a number equal to the number of commissioners who participated in the final scoring ,
round. Final average project scores shall be calculated for each of the four growth
management scoring criteria of Sections 26. I 00. 080(C)(I), 26. IOO. 080(C)(2),
26 I 00, 080(C)(3) and 26 I 00. 080(C)(4), and a cumulative score shall be calculated for
the criteria as a whole. The final average cumulative score calculated pursuant to this
provision shall constitute the projects final score,
e. Projects shall be ranked in order of their final average scores.
f The project rankings and any recommendations for the award of optional maximum
allotments shall be forwarded to the City Council and Board of County Commissioners.
The Code specifies that a preliminary and a final scoring round shall be held. The Commission only held
one scoring round on this application. Extensive discussion of staff's recommended scores occurred prior
to the Commission's scoring, but no discussion occurred following the scoring, Although the Code does
not require the Commission members to discuss or justify their scores between scoring rounds, a second
r'\
^'
scoring round provides the members an opportunity to reconsider their scores. The applicant in this case
was denied the possibility of revisions since the procedure in the Code was not followed,
A letter from Joe Edwards, representing the Concept 600 Condominium Association, asserts that due
process was not denied and that the scoring should be affirmed by Council. The letter is attached as
Exhibit E.
AL TERNA TIVE ACTIONS: The Council has the following options to respond to the appeal, as
provided in Section 26.100.060(D)(2) of the Code:
1. The Council may affirm the scoring of the Growth Management Commission. This action shall
constitute the final administrative order oil the matter.
2. The Council may overturn the Growth Management Commission's scoring. This action allows the
applicant to file an appeal of the Growth Management Commission's scoring with the joint City
CouncillBoard of County Commissioners, who have the authority to remedy the Commission's
scoring by amending the number of points awarded or by remanding the application back to the
Commission for rescoring.
RECOMMENDED ACTION: Staff agrees with the applicant that the prescribed procedure was not
followed, and, therefore, that the scoring process may have been flawed. However, staff also recognizes
that this "denial of process", though "unfair", may not legally be considered a, "denial of due process."
However, in order to uphold the imporlance of the scoring procedure as established in the Code, staff
recommends that Council overturn the Growth Management Commission's scoring and allow the applicant
to appeal to the joint City CouncillBoard of County Commissioners,
Exhibits:
A. Notice of Appeal
B. Staff memo and score sheet dated January 14, 1997
C. Growth Management Commission Tally Sheet
D, Growth Management Commission Minutes - January 14,1997
E. Letter from Joe Edwards
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MEMORANDUM
TO:
Aspen City Council
Amy Margerum, City Manager ,~
Stan Clauson, Community Development Director -v
THRU:
FROM:
Suzanne Wolff, Planner
RE:
Forwarding 1996 Metro Area Residential GMQS Scores
DATE:
February 10, 1997
SUMMARY: Pursuant to Section 26.100.060(C)(3)(f) of the Aspen Municipal Code, the attached
resolution of the Growth Management Commission forwards the 1996 Metro Area Residential GMQS
scores for the following application which was submitted for the 1996 competition:
. Stage 3 Penthouses: requesting one residential allotment to construct a free market residence and
three affordable housing units above the existing Stage 3 Theaters on Main Street.
There are two residential allotments available in the Metro Area on an annual basis. Since only one
application was received, there was no competition for the 1996 allotments.
The Growth Management Commission scored the application on January 14, 1997. The application
exceeded the minimum threshold score of three in three of the scoring categories, but did not receive the
minimum threshold score of three in the "Maintaining design quality, historic compatibility and
community character" category; therefore, the allocation was denied. The tally sheet is attached as
Exhibit A to the Growth Management Commission's Resolution.
The Applicant has submitted an appeal, which is also scheduled on the February 10 agenda.
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AGENDA ITEM SUMMARY
TO:
Board of County Commissioners
Regular Meeting - February 12, 1997
j.e.c~ ld\..
Cindy Rouben, Community Development Director
THRU:
FROM:
Suzanne Wolff, Planner
RE:
Forwarding 1996 Metro Area Residential GMQS Scores
SUMMARY: Pursuant to Section 4-60.65(B)(3)(g) of the Land Use Code, the attached resolution of the
Growth Management Commission forwards the 1996 Metro Area Residential GMQS scores for the
following application which was submitted for the 1996 competition:
. Stage 3 Penthouses: requesting one residential allotment to construct a free market residence and
three affordable housing units above the existing Stage 3 Theaters on Main Street.
There are two residential allotments available in the Metro Area on an annual basis. Since only one
application was received, there was no competition for the 1996 allotments.
The Growth Management Commission scored the application on January 14, 1997. The application
exceeded the minimum threshold score of three in three of the scoring categories, but did not receive the
minimum threshold score ofthree in the "Maintaining design quality, historic compatibility and'
community character" category; therefore, the allocation was denied. The tally sheet is attached as
Exhibit A to the Growth Management Commission's Resolution.
The Applicant has submitted an appeal, which will be considered by the City Council on February 10,
1997, to determine whether there was a denial of due process or abuse of discretion by the Growth
Management Commission in its scoring. If the Council affirms the Commission's scoring, this action
shall constitute the final administrative order on the matter. If the Council overturns the Commission's
scoring, the applicant may file an appeal of the scoring with the joint City CouncillBoard of County
Commissioners, who have the authority to remedy the Commission's scoring by amending the nU1llber of
points awarded or by remanding the application back to the Commission for rescoring.
Since the scoring is being appealed, no action by the Board is required at this time. Following the appeal
process, the Board and Council must accept the original or amended scores, whichever are applicable.
A
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RESOLUTION OF THE GROWTH MANAGEMENT COMMISSION OF THE CITY OF ASPEN
AND PITKIN COUNTY, COLORADO, FORWARDING THE 1996 METRO AREA
RESIDENTIAL GROWTH MANAGEMENT QUOTA SYSTEM SCORING TO THE CITY
"')
COUNCIL'
Resolution No. 97-L
WHEREAS, on January 14, 1997, the Growth Management Commission (hereafter
"Commission") held a duly noticed public hearing at which time evidence and testimony was presented
with respect to Growth Management applications.
WHEREAS, the Commission reviewed the following application for the 1996 Metro Area
Residential GMQS competition:
. Stage 3 Penthouses: requesting one residential allotment to construct il free market
residence and three affordable housing units above the existing Stage 3 Theaters on Main
Street.
WHEREAS, Stage 3 Theaters is located at 625 E. Main St., and is described as Lots E, F and G
and the east 10' of Lot D, Block 98, City and Townsite of Aspen.
WHEREAS, there are two Metro Area residential allotments available. Since only one
application was received, there was no competition for the 1996 allotments.
WHEREAS, the Growth Management Commission scored the application above the minimum
threshold score of three in three of the scoring categories, but the application did not receive the
minimum threshold score of three in the "Maintaining design quality, historic compatibility and
community character" category, therefore, the allocation was denied. The tally sheet is attached as
Exhibit A.
NOW THEREFORE BE IT RESOLVED by the Commission that it hereby forwards the 1996
Metro Area Residential GMQS scores to the City Council, as required by Section 26, ] OO.060(C)(3)(f) of
the Aspen Municipal Code.
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APPROVED AND ADOPTItD on the 14th day of January, 1997.
Attest:
suzannew\aspen \cases\gmqs\stage3\boccreso .doc
PID #2737-073-32-002
Case #A 77-96
Growth Management Commission:
>.?obJ/ 1/ tULt7J/V
'-=,
Sara Garton, Chair
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RESOLUTION OF THE GROWTH MANAGEMENT COMMISSION OF THE CITY OF ASPEN'
AND PITKIN COUNTY, COLORADO, FORWARDING THE 1996 METRO AREA
RESIDENTIAL GROWTH MANAGEMENT QUOTA SYSTEM SCORING TO THE BOARD OF
COUNTY COMMISSIONERS
Resolntion No. 97- 2.
RECITALS
1. On January 14, 1997, the Growth Management Commission (hereafter "Commission") held a
duly noticed public hearing at which time evidence and testimony was presented with respect to
Growth Management applications.
2. The Commission reviewed the following application for the 1996 Metro Area Residential GMQS
competition:
. Stage 3 Penthouses: requesting one residential allotment to construct a free market
residence and three affordable housing units above the existing Stage 3 Theaters on Main
Street.
3. Stage 3 Theaters is located at 625 E. Main St., and is described as Lots E, F and G and the east 10'
of Lot D, Block 98, City and Townsite of Aspen.
4. There are two Metro Area residential allotments available. Since only one application was
received, there was no competition for the 1996 allotments.
5. The Growth Management Commission scored the application above the minimum threshold
score of three in three of the scoring categories, but the application did not receive the minimwn
threshold score of three in the "Maintaining design quality, historic compatibility and
community character" category, therefore, the allocation was denied. The tally sheet is attached
as Exhibit A.
A
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NOW THEREFORE BE IT RESOLVED by the Commission that it hereby forwards the 1996
Metro Area Residential GMQS scores to the Board of County Commissioners, as required by Section 4-
60.65(B)(3)(g) of the Land Use Code.
APPROVED AND ADOPTED on the 14th day of January, 1997.
Attest:
APPROVED AS TO FORM:
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suzannew\aspen Icaseslgmqslstage3lboccreso.doc
PID #2737-073-32-002
Case #A 77 -96
:
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Growth Management Commission:
s~v!/~; ~
Sara Garton, Chair
APPROVED AS TO CONTENT:
1.. G.,,,-,,,-CQ-tJ; ~ Cf(.
Cindy Houben,
Community Development Director
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LAW OFFICES OF
OATES, HUGHES, KNEZEVICH & GARDENSWARTZ
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
533 EAST HOPKINS AVENUE
ASPEN, COLORADO 81611
LEONARD M. OATES
RICHARD A. KNEZEVICH
TED D. GARDENSWARTZ
TELEPHONE (970) 920-1700
FACSIMILE (970) 920-1121
e-mail ohkg@rof.net
DAVID B. KELLY
RICH ORMAN
OF COUNSEL:
ROBERT W. HUGHES
JOHN THOMAS KELLY
February 7, 1997
City Council, City of Aspen
c/o Stan Clauson and Suzanne Wolf
Community Development Department
130 South Galena
Aspen, CO 81611
HAND DELIVERED
RE: Joseph E. Edwards, Jr. letter of February 5, 1997
Dear Council Members and Planning Staff:
This firm represents the applicant as legal counsel regarding the Appeal of the Growth
Management Scoring for the Stage 3 building. You are in receipt of a letter dated February 5,
1997 from Joseph E. Edwards, Jr., the attorney representing the Concept 600 Building across the
street from Stage 3, alleging certain procedural defects in the Appeal.
Mr. Edwards February 5 letter is a legally inaccurate and misleading attempt to limit the
scope of the City Council's inquiry into the decision of the Growth Management Commission, and
to impose the formal and ritualistic rules that govern the Colorado courts on the City Council.
For this reason, the applicant requests that the City Council examine all actions (or inactions) of
the Growth Management Commission in making its decision.
On the second page of his letter, Mr. Edwards states that the applicant "did not object to
the termination of the hearing after the scoring process or ask for a second hearing." Mr.
Edwards thus implies that the applicant's alleged failure to raise such an issue at the hearing
constituted a waiver of the applicant's right to object to what Mr. Edwards himself admits was a
failure of the Growth Management Commission to comply with the requirements of Land Use
Regulation 9 26. JOO.060(c).
~ ~
OATES, HUGHES, KNEZEV1-.:H & GARDENSWARTZ, P.C.
Letter to City Council
Page 2
Even though this is an administrative proceeding and not a civil court case, Mr. Edwards
erroneously cites several Colorado appellate court decisions that purportedly support his
proposition. None of the cases cited by Mr. Edwards support his proposition that the applicant
is barred from challenging, or that the City Council is barred from considering, the Growth
Management Commission's failure to comply with proper procedure. Two of the cases cited by
Mr. Edwards deal with situations where a party to an administrative proceeding attended and
participated in a hearing and later challenged the administrative actions in court claiming that the
notice to the hearing itself was inadequate. Zavala v. Denver, 759 P.2d 664,668 (Colo, 1988)
("By fully participating in the hearing and failing to object to any notice provisions, the appellant
waived any right to later claim these defects constituted a violation. . ."); Hendrickson v.
Department of Revenue, 716 P.2d 489, 490 (Colo. App. 1986). Obviously, these cases have no
application to the present administrative appeal process, because these cases dealt with a court
challenge after the administrative process was completed, while the administrative proceeding in
this matter is still in progress. Additionally, these cases are not germane because the participants
in the cited cases could not have been injured by lack of notice when they participated in the
hearings themselves. Because applicant is not challenging the notice of the Growth Management
Commission hearing, these cases are irrelevant.
All of the other cases cited by Mr. Edwards deal with appeals of civil cases from district
courts, not with administrative proceedings. In these cases, lawyers for the appealing parties
failed to object to matters at trial, and the appellate courts held that they could not appeal on
issues that were not raised at trial. Paine, Webber, Jackson & Curtis v. Adams, 718 P.2d 508,
513 (Colo. 1986) ("As a general rule, issues not presented in the trial court are deemed waived
and cannot be raised on appeal"); Chrisetnsen v. Hoover, 643 P,2d 525, 531 (Colo. 1982)
("Defenses and objections not presented at trial cannot be raised for the first time on appeal");
Matthews v. Tri-County Water Conservancy District, 613 P.2d 889, 892 (Colo. 1980), The
decisions reached by the Colorado Supreme Court in these cases have no relevance to
administrative proceedings, and have even less relevance to a situation where the administrative
proceeding is still in progress, as is the present case.
In short, Mr. Edwards cites no authority for the proposition that the City Council cannot
consider the procedural abnormalities of the Growth Management Commission. What Mr.
Edwards is trying to do is impose the formal rules of a trial court on an administrative process,
which is more informal than a civil trial and which is bound by the Land Use Regulations, not the
Colorado Court Rules. Indeed S 26,loo.060(D), which governs this appeal procedure, has no
requirement that an applicant make formal objections on the record at the Growth Management
Commission hearing, or that the applicant follow the technical rules which govern a civil court
trial. Indeed, the very language of S 26,100.060(0) states that the City Council is to consider
"whether there was a denial of due process or abuse of discretion by the Growth Management
Commission in scoring." There is no requirement that the applicant follow a formal and ritualistic
~
OATES, HUGHES, KNEZEV H.JH & GARDENSWARTZ, p.e.
r-.
Letter to City Council
Page 3
process as a lawyer might be required to do in a court oflaw. Alan Richman, who presented the
application on behalf of the applicant, is not a lawyer and there is no requirement that the
applicant be represented by a lawyer in the application process. The City Council has unfettered
authority to consider all actions of the Growth Management Commission, regardless of the
alleged failure of the applicant to make any objections for the record. Mr. Edwards' attempt to
impose the Colorado Court Rules on these proceedings is without legal authority, is incorrect, and
if followed, would unnecessarily restrict and complicate these proceedings, and might result in an
additional denial of due process to the applicant.
In short, we urge the City Council to consider all the actions of the Growth Management
Commission in this matter and the content of the appeal made by Mr. Richman on behalf of the
applicant.
OHar greater importance to the insignificant and incorrect technical issues raised by Mr.
Edwards is the fact that Mr. Edwards' letter improperly argues the merits of his client's objection
to the application. The purpose of the appeal process in this administrative proceeding is solely to
determine "whether there was a denial of due process or abuse of discretion by the Growth
Management Commission in scoring," Mr. Edwards' inappropriate attempt to inject extraneous
issues into the appeal process should be disregarded by the City Council, who should only
consider the appeal filed by the applicant and the record of the proceedings of the Growth
Management Commission. Any other action would be in violation of the Land Use Regulations
and general principles of administrative law.
Sincerely,
Oates, Hughes, Knezevich,
& Gardenswartz, P,C.,
CC: J'vIr. Joseph Worcester, Esq.
Mr. Alan Richman (via facsimile)
BY:~Ah~ Q Jl/ ()Jp'<J~
Leonard M. Oates
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MEMORANDUM
TO:
Growth Management Commission
Mary Lackner, Acting Deputy Director ,ill /
THRU:
FROM:
Suzanne Wolff, Planner
RE:
Stage 3 Penthouses Metro Residential GMQS Application - Continued Public Hearing
DATE:
January 14, 1997
SUMMARY: The applicant is requesting one metro area residential GMQS allotment to develop one free
market dwelling unit above the Stage 3 Theaters. Associated reviews which will be separately considered
by the Planning Commission and the City Council include GMQS Exemption for three affordable housing
units, Special Review and Subdivision. Staff's recommended scoring of the project is attached as Exhibit
A, and the application packet is attached as Exhibit C.
No other applications were received for metro area residential GMQS allotments.
APPLICANT: George Carisch, represented by Alan Richman & Dave Gibson
LOCATION: 625 E. Main St.; Lots E, F and G and the east 10' of Lot D, Block 98, City and Townsite of
Aspen
ZONING: C-I, Commercial
LOT SIZE: 10,000 square feet
BACKGROUND: The Playhouse Theater was constructed on this site in 1973. The theater was
remodeled in 1985 to accommodate three theaters.
REFERRAL COMMENTS: Comments from the Parks, Housing and Engineering Departments, and the
Fire Marshal are attached as Exhibit B. These comments have been included in staff's responses to the
GMQS scoring criteria, where applicable.
STAFF RECOMMENDATION: Staff has awarded the project a total score of 12, which meets the
requirement that an application must receive a score of at least three points for each of the four growth
management scoring criteria in order to receive a development allotment. Staff recommends that the
Growth Management Commission accept staff s scoring of the project, unless the Commission has any
objections. Granting of the allotment will be contingent upon approval of the associated reviews by the
Planning Commission and the City Council.
RECOMMENDED MOTION: "I move to forward the scores for the 1996 Metro Residential GMQS
competition to the City Council and the Board of County Commissioners."
Exhibits:
A - Staff's recommended scoring
B - Referral Comments
C - Application Packet
~
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EXHIBIT A
STAGE 3 PENTHOUSES - METRO AREA RESIDENTIAL GMQS SCORE SHEET
Scoring: Points shal1 be awarded for performance relative to each of the four scoring criteria. Possible
scores for each criterion shal1 range from zero, the lowest possible score, to five, the highest possible
score. It is recognized that smal1 projects could be at a competitive disadvantage when scored against
large-scale projects. It is intended, therefore, that projects be evaluated according to reasonable
expectations regarding what could be expected given their size and scale. A score of zero shal1 be
awarded to projects that, although they had the opportunity to comply with scoring criteria and had the
ability to advance stated community goals, will actual1y contribute nothing to implementation of the
articulated vision and may, in fact, move the community further away from its stated goals. A score of
three indicates that a project will move the community closer toward attainment of its stated visions and
make a positive contribution toward the implementation of articulated goals. A score of five indicates
that a project demonstrates exceptional sensitivity to the stated visions of the community and will result
in significant movement toward implementation of those goals. Other scores along the continuum from
zero to five will be awarded based on the degree to which projects will implement stated goals. No
growth management al1ocation shal1 be awarded to projects that do not receive a final average score of at
least three points for each of the growth management scoring criteria of Pitkin County Land Use Code
Sections 3-l60.50-C.1, 3-l60.50-C.2, 3-l60.50-C.3 and 3-l60.50-C.4, or of the City of Aspen Municipal
Code Sections 26.100.080(C)(1), 26.100.080(C)(2), 26.100.080(C)(3), and 26.100.080(C)(4).
Criteria:
1. Revitalizing the permanent commnnity: Residents of the Aspen area have long recognized the
need to preserve the community's character and identity as more than just a resort, a col1ection of second
homes and a tourist shopping mecca. They recognize that a "critical mass" of permanent residents and
local serving-businesses is necessary to make any community function. They recognize, too, that the
vitality brought to the Aspen area by ful1-time residents is being seriously diluted by the inability of
working people to live in their own community.
As a result of these concerns, one of the community's central goals is to create a community with
a size, density and diversity that encourages interaction, involvement and vitality and one that provides
opportunities for its workers to become a permanent part of the social fabric.
There are a variety of ways in which a project might address the goal of revitalizing the
permanent community, including, but not limited to the fol1owing:
a. providing high-quality, on-site, affordable housing for permanent residents;
b. providing site appropriate mixing offree market and affordable housing for efficient
provision of services such as transit and discourages site planning that isolates affordable and free market
units;
c. providing a housing package consistent with the Honsing Authority Guidelines with an
emphasis on family-oriented housing where and when appropriate;
d. creating affordable dwel1ing units through buy-downs or conversion of existing free
market units; and
e. providing "local1y serving commercial space/businesses."
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STAFF COMMENTS: The applicant proposes to provide three affordable housing units: a studio, a
one-bedroom, and a three bedroom. The location of the units on Main St. creates opportunities for
working residents to live in-town, and hopefully discourages them from using automobiles. Also,
providing a mix of unit types addresses various housing needs.
The units meet or exceed the specifications of the Affordable Housing Guidelines: all three units exceed
the minimum net livable square footage standards for Category 3 units, have additional storage space and
decks, contain their own laundry facilities, and are located fully above ground to provide natural light into
the units. The units all face Main St., and do not have any windows with southern exposure. The applicant
proposes to rent the units and to deed restrict them as Category 3 units.
The project is consistent with the following standards and goals of the AACP:
. "encourage infill development within the existing urban area",
. "mix free market and affordable housing", and
. "increase the use of upper floors of commercia] buildings to provide affordable housing on-site in the
commercial core"
The project also maintains a local-serving commercial use, and reduces the amount of potential commercial
buildout in the downtown area.
PLANNING STAFF'S RECOMMENDED SCORE: ;i
COMMISSIONER'S SCORE:
2. Providing transportation alternatives: Residents recognize that reducing dependency on the
automobile is vital for the long-term livability and health of the Aspen area. Their plan is so bold as to
envision a time in the not-too-distant future when the automobile is not the dominant means of moving
people in and around the community. They are seeking a balanced, integrated transportation system for
residents, visitors and commuters that reduces traffic congestion and air pollution. These are a variety of
ways in which a project might address the goal of providing transportation alternatives, including, but
not limited to the following:
a. reducing the need for private vehicles as a form of transportation;
b. facilitating and encouraging year-round pedestrian transportation;
c. helping to implement avalley-wide mass transit system;
d. providing needed improvements to the existing RFTA system;
e. increasing the number of available transportation choices;
f. creating a less congested downtown core;
g. helping to implement the transportation planning policies of the AACP and the Aspen to
Snowmass transportation plan;
h. altering land use patterns to accommodate and contribute to a more efficient and
effective transit system;
i. creating, improving or expanding public commuter trails, walkways or bikeway facilities
that are consistent with the goals of the AACP and associated plans, such as the pedestrian/bikeway plan;
j. locating developments near transit facilities;
k. providing on-going transportation to and from the airport, ski areas and shopping areas;
1. providing on-going employee transportation services such as van pools or buses at no
cost to employees;
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m. providing bicycle parking, showers and lockers for employees; and
n. providing secure bicycle storage for guests and employees.
STAFF COMMENTS: As an infill project which is creating affordable housing in-town, this project
automatically contributes to the goal of providing transportation alternatives. Residents can easily walk,
ride bikes, or take the bus to work, shop or recreate, which will create less congestion in the downtown
core and lessen air pollution caused by vehicle traffic. Limited parking should also serve as an auto
disincentive; each residential unit will be assigned one on-site parking space. The site is constrained by
the existing Stage 3 structure, so the development is unable to provide the required amount of parking
on-site. The applicant proposes to pay a $90,000 in-lieu fee to mitigate the six spaces that cannot be
provided on-site.
The applicant represents that the proposed residential development will create less traffic than additional
or alternative commercial development on this site.
PLANNING STAFF'S RECOMMENDED SCORE: ;1
COMMISSIONER'S SCORE:
3. Promoting environmentally sustainable development: Residents of the Aspen area recognize
that the natural environment is one ofthe community's greatest assets. As a result, they wish to allow
only that development that is environmentally sensitive and that promotes individually responsible,
ecological lifestyles. The community seeks to foster a high level of consciousness relative to resource
conservation, wildlife protection and environmental sustainability.
These are a variety of ways in which a project might address the goal of promoting
environmentally sustainable development, including, but not limited to the following:
a. orienting building sites, streets and other project features in order to maximize potential
for use of solar energy and other renewable energy resources;
b. protecting and preserving existing trees and other mature vegetation during and after the
construction process;
c. using fewer or cleaner wood-burning devices than allowed by law;
d. removing or replacing existing dirty wood-burning devices;
e. increasing community access to natural and open space areas;
f. promoting community recycling efforts;
g. landscaping with low-water-use plant materials and using chemical-free landscape
maintenance techniques;
h. employing measures that reduce PM 10 levels in the non-attainment area;
1. preserving and efficiently using environmental resources during all phases of
development, including types of materials used and future energy and material needs of the project;
j. completely avoiding "1041" hazard areas and ridgeline development;
k. enhancing existing wildlife habitat;
1. completely avoiding 8040 Greenline issues; and
m. completely avoiding Stream Margin Review issues.
STAFF COMMENTS: By developing an infill project, the applicant is not extending the urban area or
removing open space. The existing theater structure will remain, therefore, there will not be additional
impacts on the land. Three existing spruce trees are proposed to be relocated on-site to the existing
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garden area. The existing building footprint, combined with the parking and trash requirements, prohibit
the applicant from providing additional open space on the property.
The applicant proposes to instaIl one wood-burning device. The applicant is making a positive
contribution to air quality by providing one wood-burning device when two could be aIlowed (Section
I3.08.070.d of the City Code aIlows two "Department certified devices in any single building" which
may include wood-burning devices), however, the applicant could make a stronger commitment by
opting not to have any wood-burning devices.
The applicant represents that recycling bins will be provided on-site, the free-market unit will be
designed to take advantage of passive solar gain, and water-saving plumbing fixtures will be instaIled.
The applicant states that "the units will be designed to at least meet the requirements of the City's energy
code". The project must comply with the Model Energy Code, but could opt to provide additional
measures in order to exceed the requirements.
PLANNING STAFF'S RECOMM:ENDEl) SCORE: ~
COMMISSIONER'S SCORE:
4. Maintaining design quality, historic compatibility and community character: Residents
recognize the importance of design within the community's historic setting. It is a vital component of the
community's economic well-being and cultural heritage. They believe that public architecture should
support and enhance community life. Their goal is to ensure maintenance of community character
through design quality and compatibility with historic features.
These are a variety of ways in which a project might address the goal of maintaining design
quality, historic compatibility and community character, including, but not limited to the foIlowing:
a. restoring structures listed in the inventory of historic structures;
b. improving and maintaining the appearance and function of aIleys for commercial, office
and residential uses;
c. ensuring design compatibility with existing buildings in the vicinity of the proposed
project, in terms of scale, massing, building materials, fenestration, other architectural features and open
space;
d. including porches or other "pedestrian-friendly" features;
e. retaining and promoting eclectic and varietal businesses along main street that maintain
and enhance the special character of the historic district;
f. ensuring the site's useability for social activities.
STAFF COMMENTS: The residential units will be set back from the existing structure in order to
reduce the perceived mass and to step the structure down in scale as it approaches the adjacent structures.
The setback from the existing front facade will also prevent shading on Main 51. The table below
summarizes the setbacks from the facades of the existing structure.
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Setbacks from Facade of Existin!, Structure
Facade
Proposed
Second Level
18'
0'
0'
18'
Proposed
Third Level
36'
21'
13'
24'
North side (Main St.)
West side
East side
South side (alley)
However, staff feels that the design does not provide variety which would help to break up the mass of
the structure: the additional levels are "boxy" and present flat facades to Main St. and to the alley. Also,
the design does not provide a strong connection between the existing and proposed portions of the
structure. The design is compatible with the surrounding buildings, but does not enhance the area.
The application states that the appearance and function of the alley is being improved by removing trash
containers and locating them on-site, and the pedestrian path along the western edge of the property will
be maintained.
PLANNING STAFF'S RECOMMENDED SCORE: ;2
COMMISSIONER'S SCORE:
PLANNING STAFF'S TOTAL SCORE: 12
COMMISSIONER'S TOTAL SCORE:
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MEMORANDUM
TO:
Aspen Planning and Zoning Commission
Mary Lackner, Acting Deputy Director ff't 1-
THRU:
FROM:
Suzanne Wolff, Planner
RE:
Stage 3 Penthouses GMQS Exemption, Special Review & Subdivision - Continued Public
Hearing
DATE:
January 14, 1997
SUMMARY: The applicant is proposing to develop one free market and three affordable dwelling units
above the Stage 3 Theaters. The existing footprint of the structure will not be changed. The following
approvals are requested:
. Metro Area Residential GMQS competition for one residential allotment;
. GMQS Exemption for three affordable housing units;
. Special Review to increase the maximum allowable floor area, to establish the parking requirement, and
the reduce the dimensions of the required trash/utility service area; and
· Subdivision to develop dwelling units within a commercial building.
The GMQS scoring criteria are included in a separate memo to the Growth Management Commission. The
application packet is attached as Exhibit A.
APPLICANT: George Carisch, represented by Alan Richman & Dave Gibson
LOCATION: 625 E. Main St.; Lots E, F and G and the east 10' of Lot D, Block 98, City and Townsite of
Aspen
ZONING: C-l, Commercial
LOT SIZE: 10,000 square feet
BACKGROUND: The Playhouse Theater was constructed on this site in 1973. The theater was
remodeled in 1985 to accommodate three theaters.
REFERRAL COMMENTS: Comments from the Parks, Housing and Engineering Departments, and the
Fire Marshal are attached as Exhibit B.
Parks Department: Rebecca Schickling recommends that the trees be evaluated by a tree mover to
determine whether relocation is possible, and whether the area where the trees will be located is adequate to
accomodate the three trees. A tree removal permit will be required to relocate the three spruce trees
adjacent to the parking area.
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Engineering Department: A drainage mitigation plan sball be provided to the City Engineer prior to
issuance of any building permits.
Housing Office: Cindy Christensen states that the three affordable housing units fall within or exceed the
specifications of the Housing Guidelines: all three units exceed the minimum net livable square footage
standards, have additional storage space, contain their own laundry facilities, and are located fully above
ground to provide natural light into the units. Housing originally recommended that the units be deed
restricted as Category 2 units, however, after realizing that the proposed units are not associated with the
theater operation, Housing has agreed with the applicant's proposal to deed restrict the units as Category 3
units.
Fire Marshal: Ed Van Walraven states that the project shall meet all of the codes and requirements of the
Aspen Fire Protection District, including, but not limited to, the installation of applicable and approved fire
sprinkler and fire alarm systems. Also, the trash area shall comply with Section 1103.2.2 of the 1994
Uniform Fire Code with regard to location of dumpsters.
STAFF COMMENTS: Several letters from adjacent property owners are included as Exhibit C.
Special Review (Section 26.64.040): Special Review is required for the following:
· To increase the maximum allowable floor area in the C-l zone district from 1:1 to 1.5:1;
. To establish the parking requirement for affordable housing and to convert the existing commercial
spaces on the property to residential use via a cash-in-lieu payment for the commercial spaces; and
. To reduce the dimensions of the required trash/utility service area.
Floor Area: The applicant proposes to increase the maximum allowable floor area ratio from 1:1 to 1.5:1,
which would allow a total floor area of 15,000 square feet. The C-l zone district includes a provision that
permits this increase, only if 60% of the additional floor area is approved for residential use restricted to
affordable housing. This provision is only applicable to properties in the C-I and CC zone districts, and
provides an incentive for the development of affordable housing in the downtown area.
A breakdown of the existing and proposed floor area is provided on page 20 of the application. Of the
additional 5,000 square feet of floor area that is subject to special review, 3,000 square feet is proposed to
be used to develop the affordable housing units, which conforms with the 60% requirement. The
development application shall also meet the following conditions:
1. The mass, height, density, configuration, amount of open space, landscaping and setbacks of the
proposed development are designed in a manner which is compatible with or enhances the character of
surrounding land uses and is consistent with the purposes of the underlying zone district.
2. The applicant demonstrates that the proposed development will not have adverse impacts on
surrounding uses or will mitigate those impacts, including but not limited to the effects of shading, excess
traffic, availability of parking in the neighborhood or blocking of a designated view plane.
Response: The maximum allowed height in the C-1 zone district is 40'. The flat roof of the proposed
structure will achieve that maximum height, and the elevator tower and chimney will exceed that height,
as allowed by Code. The existing building height is 20', which represents a two story volume, and the
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surrounding structures range from 2 1/2 to 4 stories in height. In most cases the ridges of adjacent
pitched roofs may achieve 40', but the Concept 600 building is the only structure with a flat roof which
is close to the 40' maximum height limit. Though the lot is not within a designated view plane, the
additional levels will impact the view of Aspen Mountain from some of the Concept 600 units. The
design is sensitive to this fact, in that the upper level does not span the full width of the structure and has
a flat roof. Since a pitched roof is measured differently than a flat roof, the ridge of a pitched roof could
actually exceed the 40' maximum height.
The application states that the existing building contains approximately 8,500 square feet of floor area;
however, the theaters occupy a two-story volume, which is not reflected in FAR calculations. The actual
perceived mass of the existing structures (based on doubling the existing footprint) would be that of an
approximately 14,600 square foot structure. Therefore, in order to allow additional mass, and
specifically, additional floor area, on the site, the design must emphasize breaking up the mass in order
to minimize its appearance and impact on the surrounding area.
The residential units will be set back from the existing structure in order to reduce the perceived mass
and to step the structure down in scale as it approaches the adjacent structures. Setting back the
additional levels from the existing front facade will also prevent shading on Main St. The table below
summarizes the setbacks from the facades of the existing structure.
Setbacks from Facade of Existing Structure
Facade
Proposed
Second Level
18'
0'
0'
18'
Proposed
Third Level
36'
21'
13'
24'
North side (Main St.)
West side
East side
South side (alley)
However, tllOugh setting back the additional levels reduces the perceived mass, staff feels that the design
could provide additional variety to help break up the mass of the structure. The additional levels are
"boxy" and present flat facades to Main St. and to tile alley, and the design does not provide a strong
connection between the existing and proposed portions of the structure. The design is compatible with
the surrounding buildings, but does not enhance the area.
Staff appreciates the efforts of the applicant to provide high quality affordable units which exceed the
minimum net livable square footages required by the Affordable Housing Guidelines, but is wary of
allowing larger units at the expense of adding additional bulk to the structure. Several neighbors, though
supportive of the applicant's offer to create affordable housing, have expressed their concern with the
mass of the structure and the necessity of "pushing the envelope" or "going to the exceptions"
(increasing the allowed FAR) in order to accommodate the proposed project. Staff questions whether it
is necessary to build out the full 15,000 square feet of floor area in order to accommodate this project.
For comparison, if the affordable units were deed restricted as Category 2 units, then the minimum
required net livable square footages would be reduced, and the size of the units could be reduced. This
would also require a reduction in the proposed square footage of the free market unit (in order to comply
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with the requirement that 60% of the additional floor area be restricted to affordable housing), and would
subsequently lessen th" mass of tile building.
The following table compares the Category 2 and 3 minimum net livable square footages with the
proposed net livable square footage.
Affordable Housing
Unit Type
Category 2 - Miuimum
Net Livable Square
Footage Required
400
600
1,000
2,000
Category 3 - Minimum
Net Livable Square
Footage Required
500
700
1,200
2,400
Proposed Net Livable
Square Footage
Studio
Oue Bedroom
Three Bedroom
Total
613
783
1,275
2,671
Since net livable square footage is calculated differently than floor area, it is difficult to convert these
numbers in order to provide a further comparison of the impact of reducing the size of the affordable
units on the allowed floor area ofthe free market unit. However, it is obvious that the total square
footage would be reduced, and the mass of the structure could also be reduced. Also, the mix of unit
types addresses various housing needs, however, the proposed mix is not a required mix, and a different
mix could require less square footage and create less mass.
Off-Street Parking: To establish the parking requirement for affordable housing and to convert the existing
commercial spaces on the property to residential use via a cash-in-lieu payment for the commercial spaces,
the development application shall meet the following conditions:
1. In all zone districts where the off-street parking requirements are subject to establishment and/or
mitigation by special review, the applicant shall demonstrate that the parking needs of the residents.
customers, guests and employees of the project have been met, taking into account potential uses of the
parcel, the projected traffic generation of the project, the projected impacts onto the on-street parking of
the neighborhood, its proximity to mass transit routes and the downtown area, and any special services,
such as vans, provided for residents, guests and employees. In determining whether to accept the
mitigation or whether to require that the parking be provided on-site, the commission shall take into
consideration the practical ability of the applicant to place parking on-site, whether the parking needs of
the development have been adequately met on-site and whether the city has plans for a parkingfacility
which would better meet the needs of the development and the community than would location of the
parking on-site.
Response: The applicant is unable to meet the off-street parking requirements for the commercial and
residential components of this project. The footprint of the existing structure leaves very limited space in
which to accommodate parking. The existing parking spaces are currently used by employees of the
theaters; no on-site parking is provided for patrons of the theaters.
The applicant proposes to use the four existing parking spaces on-site for the four residential units. In
order to accomodate the trash area on-site as required, the applicant is unable to provide four spaces with
unobstructed access to the alley. Since the Code prohibits stacked parking for separate units, the
applicant proposes to provide two spaces for the free-market unit (including the stacked space) and two
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spaces for the affordable units, therefore, one of the affordable units, presumably the studio unit, would
be deed-restricted without parking.
The applicant proposes to make a $90,000 cash-in-lieu payment for six parking spaCl
four spaces which are currently utilized by theater employees and to mitigate for the
space which would be required for the three-bedroom affordable unit and for the pari
studio unit.
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Traffic generation from the residential units should be minimal, given the project's d.
and the ability of residents to use alternative methods of transportation. The limited I
spaces will allow the residents to store their cars on-site, but will also hopefully serveas'a:'aisincentive'to
auto use.
The streets surrounding this block all have short-term parking restrictions: from 8:00 AM to 6:00 PM,
Monday through Saturday, Hunter and Spring Streets and Hopkins Avenue are restricted to 2 hour paid
parking, and Main Street has a 90 minute restriction on both sides of the street in that block. Since the
property is located in the Commercial Core area, as designated by the Parking Department, the residents
may obtain permits to park on-street in surrounding residential areas.
2. In all zone districts, where the off-street parking requirement may be provided via a payment in
lieu, the applicant shall make a one-time only payment to the city, in the amount of fifteen thousand
dollars ($15,000.00) per space. Approval of the payment-in-lieu shall be at the option of the commission.
Response: As noted above, the applicant commits to pay $90,000 in-lieu of six parking spaces,
Utility/Trash Service Area. Currently a trash/utility service area is not designated on-site and the
dumpsters for Stage 3 are located within the alley right-of-way. The C-l zone district requires that the
trash/utility service area meet the following requirement "For up to 6,000 square feet of net leasable
floor area within a building, an area a minimum of 20 feet in length, measured parallel to the alley, with
a minimum vertical clearance of 10 feet and a minimum depth of 10 feet at ground level." The applicant
is constrained by the existing footprint of the theaters, and has worked with BFI to design a functional
trash area on-site with adequate capacity for the residential and commercial uses on the property. The
applicant proposes to reduce the depth of the trash area to 4 feet. Pursuant to Section 26.64.040(C), the
development application shall be approved only if:
1. There is a demonstration that given the nature of the potential uses of the building and its total
square footage, the utility/trash service area proposed to be provided will be adequate.
Response: A letter from BFI (Exhibit 4 of the application) states that the proposed trash area is
adequate, and the proposed recycling bins will reduce the volume of waste.
2. Access to the utility/trash service area is adequate.
Response: According to BFI, access to the trash area along the paved sidewalk from the alley is
adequate.
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3. Measures are providedfor enclosing trash bins and making them easily movable by trash
personnel.
Response: The trash area will be enclosed on three sides and will be covered. Trash bins can be moved
from the enclosure onto the paved sidewalk adjoining the alley.
4. When appropriate, provisions for trash compaction are provided by the proposed development
and measures are taken to encourage trash compaction by other developments on the block.
Response: Trash compaction is not necessary in this location.
5. The area for public utility placement and maintenance is adequate and safe for the placement of
utilities.
Response: Utilities will not need to be relocated to accomodate tllis development.
6. Adequate provisions are incorporated to ensure the construction of the access area.
Response: Not applicable.
GMOS Exemption for Affordable Housing
Pursuant to Section 26,100.050.C.3.b, the City Council ma(;~;~pt~kempt from the growth
management competition and scoring procedures "all affordaole housing deed restricted in accordance
with the housing guidelines of the City Council and its housing designee." The three affordable housing
units in this project are proposed to be deed restricted as required as Category 3 rental units.
Subdivision (Section 26,88)
The definition of subdivision includes "Land to be used for condominiums, apartments or any other
multiple dwelling units..." Multi-family dweIling unit is defined as "three or more attached dweIling
units... or one or more dwelling units located within an office, retail or service commercial building."
Therefore, subdivision approval is required for this project, altllOugh the applicant does not propose to
divide the land into separate interests.
A proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan and with the
character of existing land uses in the area, shall not adversely affect the future development of
surrounding areas, and shall be in compliance with all applicable requirements of this title. The project's
compliance with these requirements is addressed in the staff responses to the GMQS criteria.
Surrounding parcels are already fully developed, and this project should not impact future redevelopment
of those properties.
Many of the subdivision standards are designed to be applied to land subdivisions rather than to a
subdivision which expands an existing building. The applicant has responded to tile standards in the
letter dated November 21, which is attached to the application. Staff has respo~ to the standards
which are applicable to this development.
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Affordable Housing: The applicant represents that over 60% of the total residents of the project will be
housed in affordable housing units, based on the occupancy standards in the Housing Guidelines. This
percentage complies with the goal of the AACP to require new residential subdivisions to provide a
minimum of 60% affordable housing.
School Land Dedication: The November 21 letter from Alan Richman provides the methodology used to
determine the cash-in-lieu fee required, Based on the proposed square footages for the units, $2,441.47
would be paid prior to, and on a proportional basis to, the issuance of any building permits for the
residential units.
STAFF RECOMMENDATION: Staff recommends that the Commission table the application to allow
the applicant to reconsider the mass and height of the proposed structure, and its impact on and
compatibility with the surrounding Structures.
ALTERNATIVE RECOMMENDATION: If the Commission determines that the proposed development
complies with the required standards and if the project receives an acceptable GMQS score, staff
recommends that the Commission approve the Stage 3 Penthouses Special Review and recommend
Subdivision approval to the Council, subject to the following conditions:
1. Special Review approval is contingent upon approval of the Subdivision and GMQS Exemption by
City Council.
2. Prior to the issuance of any building permits, the applicant shall deed restrict the affordable housing
units as Category 3 units pursuant to the Aspen/Pitkin County Housing Guidelines. Upon approval
of the deed restriction by the Housing Office, the applicant shall record the deed restriction with the
Pitkin County Clerk and Recorders Office with proof of recordation to the Community
Development Department.
3. A tree removal permit for relocation of the three spruce trees shall be submitted to the Parks
Department prior to submission of any building permits for the residential units.
4. The $90,000 payment-in-lieu of parking shall be due and payable at the time of issuance of a
building permit for the residential units,
5. The subdivision agreement and plat shall be recorded in the office of the Pitkin County clerk and
recorder. Failure on the part of the applicant to record the plat within a period of one hundred
eighty (180) days following approval by the city council shall render the plat invalid and
reconsideration and approval of the plat by the commission and city council will be required
before its acceptance and recording, unless an extension or waiver is granted by city council for a
showing of good cause. The subdivision plat shall also be submitted in a digital format
acceptable to the Community Development Department, for incorporation into the City/County
GIS system.
6, A drainage mitigation plan shall be provided with the building permit application for review and
approval by the City Engineer.
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7. The applicants shall agree to join any future inlprovement districts formed for the purpose of
constructing improvements in adjacent public rights-of-way.
8. All new surface utility needs and pedestals shall be installed on-site,
9. The in-lieu fee for school land dedication shall be paid prior to, and on a Proportional basis to, the
issuance of any building permits for the residential units.
10. All material representations made by the applicant in the application and during public meetings
with the Plaffiling and Zoning Commission shall be adhered to and considered conditions of
approval, unless otherwise amended by other conditions,
RECOMMENDED MOTION: "I move to table the Stage 3 Penthouses application to to
allow the applicants to reconsider the mass and height of the proposed structure, and its impact on and
compatibility with the surrounding structures."
ALTERNATIVE MOTION: "I move to approve the Stage 3 PentllOuses Special Review and to
recommend Subdivision approval to the Council, subject to the conditions listed in the Community
Development Department Memo dated January 14, 1997".
Exhibits:
A - Application Packet
B - Referral Comments
C - Public Comment
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LAWOmCES
HILL, EDWARDS, EDWARDS & ADKISON, L.L.c.
TIlOMAS C. HILL
JOSEPH E. EDWARDS. JR., P.C.
JOSEPH E. EDWARDS, ill
TIlOMAS L. ADKlSON
CENTENNIAL PLAZA BUILDING
502 MAIN STREET, SUITE 201
CARBONDALE, COLORADO 81623
TELEPHONE
(970)963-3900
F ACSIMll.E
(970) 963-3131
January 14, 1997
City of Aspen
Planning & Zoning Commission
130 South Galena
Aspen, CO 81611
RE: Stage 3 Penthouses - GMQS Special Review and Subdivision - Public Hearing
Ladies and Gentlemen:
This fIrm represents the Concept 600 Condominium Association, which condominium is. located
across Main Street from the Stage 3 property. On behalf of the Association, please enter this
letter into the record of the public hearing for the Stage 3 Penthouses application to be heard
January 14, 1997.
INADEOUATE NOTICE
The Association objects to consideration of this application at this time on the grounds notice was
inadequate. Adequate and proper public notice is a jurisdictional prerequisite to holding a public
hearing. The notice in this case is insufficient in at least the following particulars:
1.
Notice not ~iven. Section 26.52.060C.5. (see Exhibit A) states that "All adjourned public
hearings shall commence only upon the giving of all notices which would have been
required were it the initial call of the public hearing." On December 17, 1996, there was
no quorum of the Growth Management Committee (only one member of the County
Planning & Zoning Committee was present) and, therefore, the Growth Management
meeting was not held. Since a GMQS allotment is a prerequisite for subdivision, the
meeting to consider the subdivision request was also not held. No meeting was opened;
no testimony was taken, and all proceedings were postponed. The word "adjourned" is
defmed in Black's Law Dictionary as "to put off; defer; to postpone." In the Webster's
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 2
New World Dictionary, the word "adjourned" is defmed as "to put off or suspend until
a future time." As there was no quorum present and the entire meeting was put off until
January, it was an adjourned meeting, as distinguished from a meeting that had already
been in process and was then continued. Therefore, a renoticing is required by the Code.
2. Inadequate manner of notice. Pursuant to Section 26.52.060E.4.c. (see Exhibit A), notice
for a Growth Management Quota System review requires the notice be published, posted
and mailed. For this public hearing, which involved GMQS review, there was a failure
to post or mail the notice for the GMQS review as required by subparagraph c.
3. Inadequate content of the notice. The notice published in the Aspen Times on
November 16, 1996 for the GMQS review and the notice published on November 30,
1996 for subdivision review fail to meet the requirements of Section 26.52.060E.2. in that
neither notice states the address of the applicant (see Exhibit B). Also, the notice of
subdivision review, which was maIled, did not meet the requirements of
Section 26.52.060E.2., which specifies "such other information as may be required to
fully apprise the public of the nature of the application." No mention was made in that
notice of the controversial request to decrease parking and increase the allowed floor area
by 150%.
GMQS ALLOTMENT
The Association objects to a consideration of this application for a GMQS allotment, since the
proposal cannot meet the required minimum development standards. Section 26.100.070 (see
Exhibit C) lists the minimum development criteria for an application before it can be considered
for a development allotment. Subparagraph B. requires that "The proposed development shall
comply with all qpplicable requirements of the City Code." This application cannot meet that
minimum development standard or criteria in that it does not meet the Code parking requirements.
1. Additional parking required. Section 26.32.010C. (see Exhibit D) requires that "If
existing development is expanded, additional off-street parking space shall be provided for
that increment of the expansion as if it is separate development." The requested expansion
is four new residential units. This proposal does not comply with that requirement in that
l1Q additional off-street parking space is being provided for that increment of the
expansion Instead of adding "additional off-street parking. . . for that increment, " the
development proposes to displace the existing employee parking for the existing
commercial use and would push that employee parking onto the streets, aggravating the
already overcrowded parking conditions in this area. Regardless of whether any parking
is required for the affordable units, Code Section 26.32.010C. requires that "additional
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 3
off-street parking.illa!l be provided" for the new free-market unit and no such "additional
parking" is provided.
2. Failure to have access to the alley or street Section 26.32.020A. (see Exhibit D) requires
that "Each parking space. . . shall have an unobstructed access to a street or alley." The
proposal is to have" stacked" parking spaces such that some of the spaces would not have
"unobstructed access to a street or alley." These stacked spaces create more congestion
and require the removal of one vehicle in order to get the stacked vehicle in and out of the
interior and less accessible space.
The proposal does not comply with applicable requirements of Section 26.32.01OC. or
Section 26.32.020A. of the City Code and, therefore, does not meet the minimum
development standards required by Section 26.100.070B (see Exhibit C), and cannot
obtain a GMQS allotment.
SPECIAL REVIEW
Section 26.64.040 (Exhihit E) provides "No development subject to special review shall be
pennitted Unless. . . A.l. The mass, height, density, configuration. . . is compatible with. . .
surrounding land uses . . . [and] A.2. . . . the proposed development will not have adverse
impacts on surrounding uses. . . including. . . effects of shading, excess traffic, availability of
parking in the neighborhood. . . ." [and] B. "Whenever the off-street parking requirements of a
proposed development are subject to establishment . . . by special review, the development
application shall illllx be approved if . . . 1. . . .the parking needs of the residents, customers,
guests and employees of the project have heen met, taking into account potential uses . . . traffic
generation of the project, the projected impacts onto the on-street parking of the neighborhood .
"
This proposal fails to meet those standards in at least the following particulars:
1. Dimensional requirements. The application requests by special review an increase in the
allowable floor area of the project from a 1: 1 ratio to a 1.5: 1 ratio. This application is
extraordinary in that the existing theater use, occupying ground floor area of 8,500 square
feet, nevertheless occupies a building volume or mass that already exceeds the volume
which would be occupied by a building with the 1.5: 1 ratio of floor area since the building
height for the theater use is equal to a two-story building. Thus, the volume or mass of
this building at the present time is the same as a 17,000 square foot floor area building
having two floors with normal ceiling heights. Such a building would already exceed the
1.5:1 ratio or 15,000 square foot floor area limit for the 10,000 square foot lot. Neither
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 4
of the adjacent buildings have that kind of volume. The massing and visual impacts of the
existing building already exceed what could be allowed even under special review. This
application then proposes to add additional volume and mass by adding a third and fourth
floor, resulting in a building that has the volume or mass and bulk of a building with a
floor area ratio of2.35:l or 23,500 square feet. This proposed building thus will appear
much more massive, blockIike and voluminous than the other buildings on this block.
The special review dimensional requirements provide, in Section 26.64.040A. (see
Exhibit E), that dimensional requirements subject to special review "shall llli!x be
approved if . ., 1. The mass, height, density, configuration, amount of open space,
landscaping and setbacks are. . . compatible with or enhance the character of surroundiq:
land uses. . . ." [and] 2. ". . . the proposed development will J1Q! have adverse impacts
on surrounding uses. . . including. . . effects of shading, excess traffic, availability of
parking in the neighborhood or blocking of a designated view plane." This application's
additional density which will create a building with the mass and bulk equivalent to a floor
area ratio of 2.35:1 should not be allowed, as it is not compatible with and is more
massive than the adjacent buildings and it creates additional shading on Main Street,
ranging from 16 to 23 feet of shading into the travel lanes on Main Street (see Exhibit F),
and will generate excess traffic and diminish the availability of parking. The height and
bulk of this building, although not in a designated view plane, will block the views from
some of the Concept 600 units across the street. The view plane, while not designated, is
nevertheless important to the adjacent landowners. A similar view plane is in effect one
block to the west to preserve the view of Aspen Mountain and Independence Pass from the
public courthouse. While the community may not have as strong an interest in preserving
the views from the Concept 600 units as from the courthouse, it is just as important to
those owners that their similar view not be further obstructed, and such view blockage is
evidence of the lack of compatibility with the surrounding land uses.
2. Required numbers of parking s,paces. For free-market residential use,
Section26.28.150E.1. (see Exhibit G), as amended by Ordinance No. 38-96, requires two
off-street spaces per dwelling unit, except that for a studio or one bedroom, one space per
dwelling unit is required. This application is for a four-bedroom free-market unit, a three-
bedroom affordable unit, a one-bedroom affordable unit, and a studio affordable unit. The
Zoning Code normally specifies 6 parking spaces be provided for the residential uses.
Aside from the fact that it provides no new spaces and is displacing the existing employee
parking, this application fails to comply with that standard in that it only proposes to have
a total of 4 spaces (2 short of those required for the residential units). The Code allows
parking for affordable units to be determined by special review (assuming the other
standards mentioned above were met - which they weren't). The only way the parking
space requirement could be modified to fmd 4 spaces sufficient would be a determination
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 5
by special review that there are no parking needs for 2 of the affordable housing units.
To determine that there will be no parking needs attendant to 2 of the 4 residential units
is to ignore the reality that failure to provide such parking will merely displace it onto the
already overcrowded adjacent streets. The applicant proposes to substitute an additional
cash-in-lieu payment for the missing on-site parking spaces for the residential units, in
effect aCknowledging that those units will in fact have parking demands. However,
Section26.28.l50E.3. (see Exhibit m only allows payment in lieu for parking spaces for
uses ~ than residential.
This proposal displaces existing parking for employees of the Commercial operation, fails to meet
the standards for off-street parking for residential uses, both as to number and as to access to the
alley, and has no parking for the commercial use. Therefore, the parking needs of the project have
not been met, which is a prerequisite to any special review approval under Section 26.64, 040B.1.
(see Exhibit E).
For the reasons indicated, the application does not meet the standards of the Code and, therefore,
is not eligible for a GMQS allotment nor for a special review variance of the parking and floor
area requirements.
Very truly yours,
HILL, EDWARDS, EDWARDS & ADKISON, L.L.C.
concept\1 plan.Ot
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26.52.060
B. Modification of review procedures. In the event that an applicant believes thal: the previously listed
review procedures do not directly address the development being contemplated, or thal: there are other unusual
circumstances, the applicant may, pursuant to Chapter 26.92, request an interpretation by the planning director
as to the appropriate review procedures for the proposed development.
C. Genernl he3ring procedures. The following general procedures shall apply to the conduct of all he3rings
regarding the review of a development application by decision-making bodies.
1. Oath or af:fiIltlation. Testimony and evidence shall be given under oath or by af:fiIltlation to the
body conducting the hearing.
2. Rights of all persons. Any person or persons may appear at a public hearing and submit evidence
either individually or as a representative of another person or an organization Anyone representing another
person or an organization must present written evidence of theiranthority to speak on behalf of the person
or the organization in regard to the matter under consideration. Each person who appears at a public hearing
shall be identified and, if appearing on behalf of another person or an organization, state the name and mailing
address of the person or the organization.
3. Due order of proceedings. the decision-mo king body conducting the hearing may exclude testimony
or evidence that it finds to be irrelevant, immott;'rial orunduIy repetitious. Any person may ask relevant questions
of other persons appearing as wimesses, but shall do so only through the discretion of the chainnan or mayor.
The order of proceedings shall be as follows:
a. The planning agency staff shall present a narrative and graphic description of the development
application.
b. The planning agency staff shall present a written and oral recommendation. This recommendation
shall address each factor required to be considered by this title and the Aspen Area Comprehensive Plan prior
to development approval and shall be made available to the applicant submitting the development application
at least ~o (2) worldng days prior to the hearing.
c. The applicant shall present any infoIltlation that it deems appropriate, and shall demonstJ:ate that
public notice has been given, if required. _ __
ct Public testimony shall be heard, first in favor of the development application, then in opposition
to it,
e. The planning agency staff may respond to any statement made by the applicant or any public comment
f. The applicant may respond to any testimony or evidence presented by the planning agency staff
or public.
4. Testimony. In the event any testimony or evidence is excluded as irrelevant, immaterial or unduly
repetitious, the person offering such testimony or evidence shall have an opportunity to make a proffer in
regard to such testimony or evidence for the record. Such proffer may be made at the hearing or in writing
within fifteen (15) days after the close of the hearing.
5. Continuance of hearing. The decision-making body conducting the hearing may, on its own motion
or at the request of any person, continue the hearing to a fixed date, time and place. No notice shall be required
if a hearing is continued. A.n;applicant shall have the right to request and be granted one continuance; however,
all subsequent continuances shall be granted at the discretion of the decision-making body conducting the
hearing, only upon good cause shown. All adjourned public hearin~s shall cOmmence only upon the givin~
of all notices which would have been ... ired were it the initial calI of the ublic'heaiiii" -.....
..
" EXHIBIT
575
I
A
. 26.52.060
t"""I
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6. Other rules to govern. Other matters pertaining to the public hearing shall be governed by other
provisions of the Municipal Code of the City of Aspen, Colorado, applicable to the decision-making body
conducting the hearing and its adopted rules of procedure, so long as the same are not in conflict with this
chapter. The city's decision-making bodies may adopt rules of procedure to limit the number of development
applications which may be considered at a hearing.
7. Record.
a. Records of hearing. The body conducting the hearing shall record the proceedings by any appropriate
means which shall be transcribed at the request of any person.
b. Record. The transcript of oral Proceedings, including testimony and statements of personal opinions,
the minutes of the secretary, all applications, exhibits and papers submitted in any proceeding before the decision-
making body, the report and recommendation of the planning agency staff, and the decision and report of
the decision-making body shall constitute the record.
c. Public records. All records of decision-making bodies shall be public records, open for inspection
at reasonable times and upon reasonable notice.
D. Actions by decision-making bodies. All decision-making bodies shall act in accord with the time
limits established in this title. Action shall be taken as promptly as possible in consideration of the interests
of the citizens of the City of Aspen.
...E..,. Public notice.
1. General. Prior to a public hearing on a development application. notice shall be. provided to the
public, pursuant to the terms of this section. Table 6-101 establishes the steps in the development review process
at which time notice is to be given.
2,. Content of notice. Every notice shall include the name and address of the applicant, the type of
devgf'<$ment application sought, date, time and place of the hearing, the ~(!"lega1(fescnption of the
subject property if applicable, a summary of the development application under consideration, and identification
-~ of the decision-making body conducting the hearing and such other:.infonnation as may be required to fully
~ a~ the PIlblic .of the nature of the application. ,--- '.' _.__.~...
, 3:- --Maniierofiotice:" Everynotlceshau be given in one or more of the following manners, as specified
in Section 26.52.060(E)(4).
a. Publication of notice. Publication of notice shall be provided by the planning agency at least fifteen
,.{15) days Q!!.<?!.!Q1l!~public~g through publication in an official paper or a paper of general circulation
in the City of Aspen in the legal notice section. The content of the notice shall be that described in Section
26.52.060(E)(2).
b. Posting of notice. Posting of notice shall be made by the applicant, who shall obtain a copy of the
form from the planning agency, which shall be posted at least ten (IO) days prior to the public hearing, by
posting a sign in a conspicuous place on the property subject to the development application. The sign shall
be made of suitable, waterproof materials, shall be not less than twenty-two (22) inches wide and twenty-six
(26) inches high, and shall be composed of letters not less than one inch in height The content of the notice
shall be that described in Section' 26.52.060(E)(2).
c. Mailing of notice. Mailing of notice shall be made by the applicant, who shall obtain a copy of
the notice from the planning agency, which shall contain that information described in Section 26.52.060(E)(2).
At least ten (10) days prior to the public hearing, notice shall be sent by first class, postage prepaid U.S. mail,
or at least five (5) days if sent by hand delivery, to all owners of property within three hundred (300) feet
of the property subject to the development applicatiOIl,and at least fifteen (15) days prior to the public hearing,
notice shall be sent by first class, postage pre-paid U.S. mail or hand delivery to any federal agency, state,
county, municipal government, school, service district or other governmental or quasi-governmental agency
576
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26.52.060
that owns property within three hundred (300) feet af the property subject to the develapment applicatian.
The names and addresses af property owners shall be those on the current tax recards of Pitkin Caunty as
they appeared no, mere than sixty (60) days prier to, the date of the public hearing.
_4....,......~~~ll.etjces. NotiCe ofhearlrigto the public fer a development application shall take the fellowing
....---..,... .:..
farm.
a. Develepment applicatian far permitted uses, special review, ESA, GMQS exemptiens, subdivision
exemptiens (ether than far a let split) or minor develepment in H. A development applicatien fer a permitted
use, development subject to special review, GMQS exemption, develepment in an environmentally sensitive
area (ESA) or minar development in H, Historic Overlay District z:quires no, netice to the public prior to
review.
b. Develepment applicatien fer conditianal uses and variances. A development applicatien fer a coIJditional
use or a variance requires mailing af netice and posting of netice pursuant to Sectien 26.52.060(E)(3)(b) and
(c).
~ Development applicatien fer significant develepment in H; demelitien in H; development in or
designatien of specially planned area (SPA); planned unit develepment (PUD); amendments to afficial zone
district map unless fer entire city; subdivisien exemptien fer let split; designation ef Historic Overlay District
or historic landmatk:s; growth management quota system (GMQS). Significant develepment in a H, Historic
Overlay District ar ef a historic 'landinaik,. develepm~nt, . demelitien of a histeric landmark eref a strUcture
rates as a "4" er a "5" by the HPC in its evaluation ef the inventery efhisteric sites and structures, designation
of a specially planned area (SPA), planned unit development (PUD), amendments to the efficial zone district
map unless fer the entire city, subdivisien exemptien for let split, designation of Histeric Overlay District
er historic landmatk:s, and ..growtl1l!laIlagementauetasYStem:(!3~~Streyjewfe9llires~p.!i&@'QJ!~ notice,
~,~f ~airmg...O'UiQjJce:-R\lIs..U3IIt to Section 26.52.06Q(E)(3)(a), (b) and (c). .
. - < .. en . ent to, the'rextorifii'SiTti-e. Amendment to, the text of this title requires publicatien ef notice
pursuant to Sectien 26.52.060(E)(3)(a) for Planning and Zoning Commissien public hearing and erdinance
adoption procedures for City Ceuncil publiC hearing.
e. Develepment applicatien fer SUbdivisiQ~.~QI!".~~w,reQUiresP1:lblicatien..ef.lle~ and
mailing e(nQ~c:e pursuant to, Sectien 2&0'6a(E)~)(a) and (c) and netice by registered mail to all suiface
'ownerS:mmera1 owners and lessees af mineral owners af the, property. subject to, the development application.
f. Any develepment applicatien which will caver five (5) acres or mere of land. Any develepment
applicatien which will cover five (5) acres or more of land requires publication of netice pursuant to Sectien
26.52.060(E)(3)(a) and mailing of notice to the Colorado Land Use COmmissien, the state geologist, and the
Pitkin Ceunty Commissianers. In additian, a development application for subdivisien approval also requires
notice by registered mail to, all surrace awners, mineral owners and lessees of mineral owners of the property
subject to, the develepment application.
5. Rezaning of entire city. Whenever the efficial zaning district map is in any way to be changed
or amended incidental to or as part of a general revision of this title, ar whenever the text of this title is to
be amended, whether such revision be made by repeal of this title and enactment of a new land use regulation,
ar otherwise, the requirement af an accurate survey map or other sufficient legal descriptien of, and the notice
to and listing af names and addresses ef owners of real property in the area of the proposed change, shall
be waived. However, the proposed zaning map shall be available fer public inspection in the planning agency
during all business heurs fer fifteen (15) days prior to, the public hearing on such amendments. (Ord. No.
13-1993 S 3; Ord. No. 56-1994, S 13: Code 1971, S 6-205)
577
(""'on 5/96)
',-,.",
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PUI3LrCNonCE
RE: STAGE 3 METRO RESIDENTIAL GMQS SCORING
NOTICE IS HElU:BY GJVENtlJat a public ft""'Mng will be held on Tuesday, December 17, 1996
at a mcctiDg to begin at 5:00 p.m. before the Growth ~em Comm;,.,.;on, Sister Cities
Meeting Room, City Hall, 130 S. Galena. St., Aspen, to score the 1996 non-metro residen:tial
GMQS applications. The following application was ~ved. for the competition:
L STAGE 3: George Carisch is requesting one allotmem to pennitthe constrUCtion of one new
:fi= maket unit above the Stage 3 Theater.! in Aspen. As:lociated approvals are ~ for
GMQS Exemption for three affordable hoUsing units and Special Review to in= the
allowable FAR, to establish the required parldng, and to reduce the required trash service area.
The property is located at 625 East Main Street, and is dc=:ibed as Lots E, F, and G and the
east 10' ofLotD, Block 98, City and Townsite ofAspeD.
For furtlJeriDfotmaIion, contaCt SIl""nn", Wolffat the Aspen/Pitkin CommllIli:ty Development
Department, 130 S. Galena. St., Aspen, CO (970) 920-5093_
~lSa1'3 Garton. Ch:tir
AlIpen pl..nning and ZoniJIg ComDrission
Published in the Aspen Tu:nesonNoveplber 16, 1996
~
~
City of Aspen Account
, , ~
UBLIC NOTl F.
RE: STAGE 3 PENTI-IOUSES SU lDIVJSION ' '
NOTICE IS HEREBY 'N IIl"t a lUillit: hCOrilll,! will he llel,1 un Tu~dayJ)ccelnbcr 17. 19C)(,
at a meeting to begin' 5:JO ,11. bctil[ the Aspelll'I.IIl/,illg itllU Zoning COl11mission, Sister Cities
Meeting Room, City Hal!, 130 S. n~llcl I St.. Aspen. (0 cpnsiuer all ;lppliCaliol1 submilled by
George Carisch, Aspen. CO, rCtJucstin ' subdivisiun nppr\lVal to cunstruct one free market nno J
a/Tordable dwelling units above the cxi. ting thealres. Tll!: prul'erty is !ocatcu 011625 E:lst M,lin
Street, and is describctl as Lots E. F, an G ,lOd the easl 1:0' of Lol D, Block 98, City and Townsite'
of Aspen. For further in[<:'nnation, cnntlet SU7.'1I11C Woll . al (he Aspen/Pitkin Community
Development Dcpartmclll, ! 30 S. (Jail' !;l SI., Aspen, CO (970) 920-5093.
llSara Garton. Chair
Aspel! Planning lIud Zonillg Contmi sloll
Published in the Aspen Tiold on Nov mbcr 30, 1996
_ ___-=t=;::::=:::':~"::.., =.,-:,:.:=.::-::::-=.",=::::::~==~:=-__==.___
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'" EXHIBIT
1
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26.100.060
the number of points awarded or remanding the development application to the Growth Management COmmission
for rescoring.
A quorum of the jOint City CouncillBoard of County COmmissioners shall be comprised of at least three
members of the Aspen City Council and at least three members of the Pitkin County Board of County
Commissioners. No meeting of the joint City Council/Board of County Commissioners shaJJ be called to order
without a quorum and no meeting at which less than a quorum is present shall act on an appeal other than
to continue it to a date certain. All actions shall require the concurring vote of a simple majority of the members
then present and voting. A tie vote by the joint City Council/Board of County Commissioners shaJJ be deemed
a decision to uphold the Growth Management Commission's scoring.
The decision of the joint City CouncilIBoard of County Cnmmi<Nioners shall constitute the finaJ administrnlive
order on the matter.
F. . Allocation. Following the conclusion of all protest hearings, the City Council shall, by resolution,
allocate development allotments among eligible applicants who meet the minimum threshold established in
Section 26.100.060(C)(5) in the order of priority established by their rank.. Those applicants having received
allotments may proceed to apply for any fwther dc:velopment approvals required by this chapter or any other
reguJations of the city. Those development applications that have not met the minimum threshold established
in Section 26.100.060(C)(5) shall be denied.
G. Assignability and transferability of allotments. Development allotments shall not be assignable or
transferable independent of the conveyance of the real property on which the development allotment has been
approved. (Ord. No. 54-1994: Code ~ 8-106)
~2" Minimum development standards.
. . The fO~owing minimum development criteria shall apply to all exeIllpt ~~~on:xempt deVe1opW~t
WIthin the CIty of Aspen. . . '
A. . 'Consistency with Community Plan. The proposed development shall be consistent with the ASpen
Area Community Plan andother adopted plans. ....
~ Compliance with Code requirements. TI1f l1n;l'Osed dev~em[sl1a!hc.OUl{lL~~~a11,,~ligab!e
r~.jI,;;m~~~,gf~~f_ity_~rd. No. 54-1994: COileT'8=r07j.. .
26.100.080 Growth management scoring criteria: residential and tourist accommodations.
A. Applicability. The scoring criteria of this section shall be used in evaluating all non-exempt residential
and tourist accommodations development applications within the Aspen metro area. The criteria are based
on the visions and goals of Aspen area residents, as expressed in the Aspen Area Community Plan. The criteria
are universal in nature; they will be used in evaluating both residential and lodge development. It is recognized
that different types of projects will be able to address the criteria in different ways and that not all of the specific
objectives and sample implementation methods are applicable to all types of development
B. . Scoring. Points shall be awarded for performance relative to each of the four scoring criteria. Possible
scores for each criterion shall range from zero, the lowest possible score, to five, the highest possible score.
It is recognized that small projects could be at a competitive disadvantage when scored against huge-scale
projects. It is intended, therefore, that projects be evaluated according to reasonable expectations regarding
what could be expected given their size and scale. A score of zero shall be awarded to projects that, although _
they had the opportunity to comply with scoring criteria and had the ability to advance stated community .
goals, will actually contribute nothing to implementation of the articulated vision and may, in fact, move the
community further away from its stated goals. A score of three indicates that a project will move the community
vr
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EXHIBIT
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677
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26.32.010
.~
Chapter 26.32
OFF-STREET PARKING
Sections:
26.32.010
26.32_020
26.32.030
General provisions.
Characteristics of off.street parking spaces and access to street or alley.
Required number of off-street parking spaces.
26.32.010 General provisions.
A. General requirements. All development, except affordable housing, shall be provided with off-street
parldng as provided in this chapter.
B. Requirements for affordable housing. The off-street parldng requirements for all affordable housing
shall be established by special review pursuant to Chapter 26.64.
C._ Requirements for expansion of existing development No development shall reduce the number
of existing off-street parldng spaces below the minimum number of existing spaces required herein for that
development, unless expressly exempted by this chapter. If exi~de.Ye!QPmentjseX{lllDded, additionllLoff:~
arldn ace shall b.e. _ 'ct . c:tem. t.ofthee;J: ,aIlSiPn.;lS..if.it.is s ar:iie'develo ment
D. 6ff~siieet parldng calculation. All requirements for off-street parldng for !'eS'Ti'ieiiti3l"aWe'Jijngs and
lodges shall. be calculated based on the number of bedrooms of the structure or use. All requirements for off-street
parldng for all other uses shall be calculated based on the' net leasable area of the structure or use.
E. Required number of spaces when fractional spaces computed. When any calculation of off-street
parldng results in a required fractional space, said fractional space may be paid cash-in-Iieu or an entire space
may be l'.rovided on the site. (Ord. No. 56-1994, ~ 9: Code 1971, ~ 5-301)
'/
19",3~..OJJJ,. Characteristics of off-street parking spaces and access to street or alley.
..k... General. Each off-street parldng space shall consist of an open area measuring eight and one-half
(S 1;2) feet wide by eighteen (IS) feet long and seven (7) feet high with a maximum slope of twelve (12)
percent in anyone direction. .faclJ.R.arldnILSPll~, except those provided for detached residential dwellings
and duplex dwellings, shall hav.e anunobstructed acc~~I\!llll~. Off-street parldng provided for
multi-family dwellings which do not sh<lre'a common parldng areimay be exempted from the unobstructed
access requirement subject to Special Review pursuant to Chapter 26.64. No driveway shall exceed a maximum
slope of twelve (12) percent within twenty (20) feet of a property line bordering a public or private right -of-way.
Off-street parking must be paved with all weather surfacing or be covered with gravel. For single family and
duplex development, a grass-ring type surface may be used. All parldng shall be maintained in a usable condition
at all times.
B. Location of off-street parldng. Off-street parldng required for development in the Ser-
vice/Commercial/Industrial (S/C/f), Neighborhood Commercial (NC) and Office (0) Zone Districts shall not
be located in any adjacent residential zone district Off-street parking for any residential dwelling, hospital,
school or other use located in a residential zone district shall be located on the same site as the principai use.
Off-street parking for a boarding or rooming house, lodge, hotel or dormitory shall be located on the same .
lot, or an adjacent lot under the same ownership as the lot occupied by the principal use. '"
'" EXHIBIT
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531
("'P<n 5/96)
. 26.64.010
Sections:
26.64.010
26.64.020
26.64.030
26.64.040
26.64.050
26.64.060
26.64.070
26.64.080
26.64.090
/"'"\
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A
Chapter 26.64
SPECIAL REVmW
e
Purpose.
Authority.
Applicability.
Review standards for SPecial review.
Procedure for special review approval.
Application.
Conditions.
Modification of requirements.
Aunendmentofdev~opmentorde~
26.64.010 Purpose.
The purpose of special review is to ensure site specific review of dimensional requirements (Chapter
26.28), off-street parldng requirements (Chapters 26.28 and 26.32), and all reductions in the dimensions of
utility/trash service areas (Chapter 26.28), and any development not at grade within fifteen (15) feet from
the top of slope in the Hallam Lake BluffESA (Chapter 26.68), in order to maintain the integrity of the City's
zone districts and the compatibility of the p1'OpOsed development with surrounding land uses. (Ord. No. 71.1990,
11 3; Code 1971, 11 7-401)
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26.64.020 Authority.
The commi",Slon, in accordance with the Procedures, standards and limitations of this chapter, sbaII approve,
approve with conditions, or disapprove a development application for special review, afterrecommendation
by the planning director. (Code 1971, 11 7-402)
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26.64.030 Applicability.
Special review sbaII apply to all dev~opment in the City of Aspen designated for special review in Olapters
26.28 and 26.32. (Code 1971, 11 7-403)
26.64;~ Review standards for special review.
No development subiectJ9_~ll:!.review shall be pennittedunle~ the COmmission makes a detennination
that the PropOSed development complies' Wiilian "Si:3Iidaras-and repirements"setfo!t:l!.below.
A. Dimensional requireme~~veritie'i:Iii:rieiiSioDai reciUil'eJIl:nts of a proposed development
are subject to special re.:Q.ew, the development application shall onfy beaPPiR."Ie(j,i! the following conditions
are met'-'" ^' _.__.."._............
J.. TheIll<l!'?,J:I!<!W,..Q'~J)::g):j:, c.onf.i~E!!Qn. .1ijlloll1lLQf Open space, landscaping and setbacks of the
proposed development ~4~gQ!;QjRl\..~x:,W.hich is compatible With or enI1aI1c~~~ o~surrounding
land uses and is Consistent with the purposes of the underlying zone district
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EXHIBIT
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26.64.040
..L. The applicant demollSll1lteS that the proposed $Y~!.QPIIlel]t:.'!Yill not ha':7_~veISe im-Fa on ~g
~~ or will mitigate those impacts, inclUcfi.!1mm::IIJlt.~t.9 th~.~ffe@orsh3iliitg;-~x~~C, ~VailabiIity
of g"arldng in the ~!g/Ibompod or bloQcIDg",Qf_~_~~.j1~w plane. .._
~ '3. Forthe reduction of required open space in the Commercial Core (CC) zone district only, the applicant
demonstrates that the provision of less than the required amount of open space on-site will be more COnsistent
with the character of surrounding land uses than would be the provision of open space according to the standard.
As general guidelines. the applicant shall take into account the following. It may be appropriate to have
open space on the site when the building is located on a street comer, or the open space can be linked to
neighboring Pedestrian amenities, or the open space provides relief intended to maintain the prominence of
an adjacent historic landmark, or the open space is intended for a particular functional purpose, such as dining
or the protection of an existing tree. It may be inappropriate to have open space on the site when other buildings
along the street front are built to the property line, especially along public malls, or when the open space is
configured in such a manner as to serve no public purpose.
When the commission determines open space is inappropriate on the site, it may rednce or waive the
requirement if the applicant shall make a payment-in-lieu according to the following fonnula:
Appraised value of the unimproved land. multiplied by the percentage of the site required to be open
space which is to be developed, equals value of payment
The appraised value of the property shall be detennined by the submission of a current appraisal perfonned
by a qualified professional real estate appraiser.
The payment -in-lieu of open space shall be due and payable at the time of issuance of a building permit
All funds collected shall be transferred by the building inspectorto the finance director, for deposit in a separate
interest bearing account Monles in the account shall be used solely for the purchase or development of land
for open space, pedestrian or recreational purposes within or adjacent to the Commercial Core (CC) zone district
Fees collected pwsuant to this section may be returned to the then present owner of property for which
a fee was paid, including any interest earned, if the fees have not been spent within seven (1) years from. the
date fees were paid, unless the council shall have eannarlced the funds for expenditure on a specific project
in which case the coWlCil may extend the time period by up to three (3) more years. To obtain a refund, the
present owner must submit a petition to the finance director within one (I) year following the end of the seventh
(7th) year from the date payment was received.
For the purpose of this section, payments collected shall be deemed spent on the basis of the first payment
in shall be the first payment out Any payment made for a project for which a building permit is cancelled,
due to noncommencement of COnstIUction, may be refunded if a petition for refund is SUbmitted to the finance
director within three (3) months of the date of the cancellation of the building permit All petitions shall be
accompanied by a notarized, sworn statement that the petitioner is the current owner of the property and by
a copy of the dated receipt issued for payment of the fee.
When the HPC approves the on-site relocation of an Historic Landmar.k into required open space, such
that the amount of open sPace on-site is reduced below that required by this Code, the requirements of this
section shall be waived.
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. 26.64.040
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4. For the Residential/Multi-Family (R/MF) zone district only, increases in external floor area shall
only be pelll1itted on sites subject to the requirements of Olapter 26.48, Replacement Housing Program. To
obtain the increase, the applicant shall demonstrate a minimum of two-thirds (213) of the additional floor area
allowed is used to increase the size of the affordable housing units beyond the minimum size standards of
the city's housing designee and the development complies with the standards of Section 26.64.040(A)(1) and
(2).
~ 01f:~~ requirements. Whenever the Qff.-street~ ~enlS ofap~ (fu~,~ent
are SUbj~JP_~$m~,~d/ormitigation via a paY!J1entin lieu btsg:cialr:.v.Iew. the developm~licmon
shalLonlY..be...aoprov~ the fOllOwing conditions are met.
LIn all zone districts where the off-street parking requirements are subject to establishment and/or
mitigation by special review, the 3l?plicant shall demOllSlIltte that th!(,'p~gJl~:O!}!J~:f!:.S.i~~t$,gISto,lllers,
guests ~!! eI!lplQY...~.()(theproje~~X!<.~enmll.t, taking.intcU!!&.Q\mt POtenti~lu.~ of the parcel, the Projected
::!~=~~~~~j~~d~7~~~~r:;;~~bo~~~~~~:~::;,
guests and employees.
In detennin1ng whether to accept the mitigation or whether to require that the par.k:ing be provided on-site,
the commission shall take into consideration the practical ability of the applicant to place parking on-site,
whether the parldng needs of the development have been adequately met on-site and whether the city has
plans for a parldng facility which would better meet the needs of the development and the community than
would location of the parking on-site.
2. In all zone districts, where the off-street par.k:ing requirement may be provided via a payment in
lieu, the applicant shall make a one-time only payment to the city, in the amount of fifteen thousand dollars
($15,000.00) per space. Approval of the payment-in-lieu shall be at the option of the commission. '
The paymen~-in-lieu of parking shall be due and payable at the time of issuance of a building permit.
All funds collected shall be transferred by the building inspector to the finance director, for deposit in a separate
interest bearing account. Monles in the account shall be used solely for the construction of a parking structure .
or similar new parking facility within or adjacent to the zone districts. to which this subsection applies.
Fees collected pllISUant to this section may be returned to the then present owner of the propeny for
which a fee was paid. including any interest earned, if the fees have not been spent within seven (7) years
from the date fees were paid, unless the council shall have eaIll1a.1t:ed the funds for expenditure on a specific
project, in which case the council may extend the time period by up to three (3) more years. To obtain a refund,
the present owner must submit a petition to the finance directorwithin one year following the end of the seventh
(7th) year from the date payment was received.
Forthe purpose of this section, payments collected shall be deemed spent on the basis of the first payment
in shall be the first payment out. Any payment made for a project for which a building pelll1it is cancelled,
due to noncOmmencement of construction, may be refunded if a petition for refund is submitted to the finance
director within three (3) months of the date of the cancellation of the building permit. All petitions shall be
accompanied by a notarized, SWorn statement that the petitioner is the current owner of the property and by
a copy of the dated receipt issued for payment of the fee.
In order to insure that the payment -in-lieu rate is fair and represents current cost levels, it shall be reviewed
within two (2) years of its effective date, and every two (2) years thereafter. Any necessary amendments to
this section shall be initiated by the commission or the city council to address the results of the review.
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The following section within each of the following zone districts shall be repealed and replaced
'--"' with the following italicized text: R-ll: 26.28.050(E)(1),R-15: 26.28.060(E)(1), R-1SA:
2628.070(E)(1), R-30: 2628.080(E)(1), R!MF: 2628.090(E)(1), RlMFA; 2628.100(E)(1),
iMHl': 26.28.120(E)(1),RR; 2628.130(E)(1), CC: 26.28.140(E)(1), C-1: 2628.150(E)(1), Sd:
26.28.160(E)(1), NC: 2628.110(E)(1), 0: 2628.lS0(E)(1), LITR: 26.28.190(E)(1)
C: 26.28.220(E)(1).
1. For singfe-jamily and duplex residential use and multi.:f-czmily use:~tw!!..(?L1
baces/dwelling un~t. Fewer spaces may be provided by special ~e~ie-w purszu.mt to Chapter
- .047Q'1!"/fisronc'randmarks only, cmdfewer spaces may be provlaedpursuant to Chapter 26.60.
for Accessory Dwelling Units only. One 1 s aceldwelZin unit is re uired i the unit is either a
studio or one~~edrq,e!! unit" .
Section 3: Section 26.28.080 of Chapter 26 of the Aspen Municipal Code, Conditional Uses in the
R-30 Zone District is amended to add the following lan"cuage:
. 26.28.080(C) Conditional Uses.
7. Accessory Dwelling Units meeting the provisions of Section 26.040.1390.
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Section 4: Section 26.32_020 of the Aspen Municipal Code, Characteristics of Off-Street
Parking Spaces and Access to a Street or Alley, is amended in the following fashion, with text in
italics being- added to the e:cisting text:
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26.32.020 Characteristics of off-street parking spaces and access to street or alley.
.'\. General. Each off-street parking space shall consist of an open area measuring
eight and one-half (8 1/2) feet wide by eighteen (IS) feet long and seven (7) feet high with a
maximum siope of twelve (12) percent in any one direction~,g~s~ parking space, except those
provided for detached residential dwellings ?JId duplex dwellings, shall have an unobslIUCted
access to a street or alley, Off-Stteet parking provided f9!multi-family dwellings which do.not
'share a co=on parking area may be e){empted from the unobstJ.ucted.access requirement
subject to Special Review pursuant to Chapter 26.64 Off Street parking provided for multi-
family dwellings which do not share a common parking area may be exemptedfrom the
u.nobsrructed access requirement subject to special review pursuanr TO Section 26.64. No
driveway shall exceed a mwqmum slope of twelve (12) percent within twenty (20) feet of a
property line bordering a public or private right-of-way. Off-street parking must be paved with
all weaIher surl'acing or be covered with. gravel. For single family and duplex development, a
gzass-ring type surface may be used. All parking shall be maintained in a usabl.;. condition at all .
times.
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. 26.28.150
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Lot Size (Square Feet)
Allowable Square Feet
9,000-15,000
4,080 square feet of floor area, plus 6 square feet of floor area
for each additional 100 square feet in lot area, up to a mIDtimum
of 4,440 square feet of floor area.
15,000-50,000
4,440 square feet of floor area, plus 5 square feet of floor area
for each additional 100 square feet in lot area, up to a maximum
of 6,190 square feet of floor area.
50,000+
6,190 square feet of floor area, plus 3 square feet of floor area
for each additional 100 square feet in lot area,
All uses other than detached residential and duplex dwellings: 1:1; however, the 1:1 external floor area
ratio may be increased to 1.5:1 by special review pursuant to Chapter 26.64.
11. Internal floor area ratio: 1:1, increasable to 1.5:1; however, if the external floor arearano is increased
by special ieview pursuant to Olapter 26.64, then sixty (60) percent of the additional floor area must be approved
for residential use restricted to affordable housing.
~ Off-street l?~!!: ~r.s:~t The following off-street parking spaces shall be provided for each
use in the Commercial (C-I) zone district, subject to the provisions of O1apter 26.32.
1. All residential ~~.;.J..m~~om ( A fY'I€N b6' 1:> _ '5 €. g- E X G)
2. Lodge uses: N/A
3. AI] nt~r~~: 1.5 soaces~souare f$t..Q.:{p"etJ~~~~~Jle.Pro.V-id~pa~ent
~ pursuant to Chapter 26.64. (Ord. No. 47-1988, ~s 2, 5, 15; Ore!. No. 7-1989, ~ 1; Ord. No. 17-1989,
S 2; Ord. No. 56-1994, S 7; Ord. No. 22-1995, S 6: Code 1971, ~ 5-210)
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26.28_160 Service/CommerciallIndustrial (SlC!I).
A Putpose. The purpose of the Service/Commercial/Industrial (S/C/f) zone district is to allow for the
use ofland for the preservation or development of limited COmmercial and industrial uses which do not require
or generate high customertraflic volumes, and to pemtit customary accessory uses, including residential dwelling
units.
B. PeIIllitted uses. The following uses are peIIllitted as of right in the Service/Commercial/Industrial
(S/C/f) zone district
1. Limited commercial and industrial uses including the following and similar uses: Vehlcle sales;
appliance and equipment rental, storage and repair; automohile repair; automobile washing facilities; electri<;al
and plumbing service shops; commercial bakery; computer product sales and services; limited industrial uses
including: Builder's supply, industri~ dry cleaning plant and laundry, fabrication and repair of building materials
and components, lumberyards, manufacture and repair of electronics or sporting goods, printing and publishing
plants, telecommunications supply, typesetting, warehousing and storage, shop-craft industry and similar uses,
artists' studios with optional accessory dwellings. All of these uses are pennitted provided they do not create
unusual traffic hazard, noise, dust, fumes, odors, stuoke, vapor, vibration, glare or industrial waste disposal
problems, and provided that no pennitted uses principally sell daily or frequently bought items to the general
public;
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MEMORANDUM
C:e-tl~.d .-
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TO:
Aspen Planning and Zoning Commission
Mary Lackner, Acting Deputy Director /rlr!.
THRU:
FROM:
Suzanne Wolff, Planner
RE:
Stage 3 Penthouses GMQS Exemption, Special Review & Subdivision- Public Hearing
DATE:
December 17, 1996
SUMMARY: The applicant is proposing to develop one free market and three affordable dwelling units
above the Stage 3 Theaters. The existing footprint of the structure will not be changed, The following
approvals are requested:
. Metro Area Residential GMQS competition for one residential allotment;
. GMQS Exemption for three affordable housing units;
. Special Review to increase the maximum allowable floor area, to establish the parking requirement, and
the reduce the dimensions of the required trash/utility service area; and
. Subdivision to develop dwelling units within a commercial building.
The GMQS scoring criteria are included in a separate memo to the Growth Management Commission. The
application packet is attached as Exhibit A.
APPLICANT: George Carisch, represented by Alan Richman & Dave Gibson
LOCATION: 625 E. Main St.; Lots E, F and G and the east 10' of Lot D, Block 98, City and Townsite of
Aspen
ZONING: C-1, Commercial
LOT SIZE: 10,000 square feet
BACKGROUND: The Playhouse Theater was constructed on this site in 1973. The theater was
remodeled in 1985 to accommodate three theaters.
REFERRAL COMMENTS: Comments from the Parks, Housing and Engineering Departments, and the
Fire Marshal are atrached as Exhibit B.
Parks Department: Rebecca Schickling recommends that the trees be evaluated by a tree mover to
determine whether relocation is possible, and whether the area where the trees will be located is adequate to
accomodate the three trees. A tree removal permit will be required to relocate the three spruce trees
adjace!1t to the parking area.
Engineering Department: A drainage mitigation plan shall be provided to the City Engineer prior to
issuance of any building permits.
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Housing Office: Cindy Christensen states that the three affordable housing units fall within or exceed the
specifications of the Housing Guidelines: all three units exceed the minimum net livable square footage
standards, have additional storage space, contain their own laundry facilities, and are located fully above
ground to provide natural light into the units. Housing recommends that the units be deed restricted as
Category 2 units.
Fire Marshal: Ed Van Walraven states that the project shall meet all of the codes and requirements of the
Aspen Fire Protection District, including, but not limited to, the installation of applicable and approved fire
sprinkler and fire alarm systems. Also, the trash area shall comply with Section 1103.2.2 of the 1994
Uniform Fire Code with regard to location of dumpsters.
STAFF COMMENTS: Several letters from adjacent property owners are included as Exhibit C.
Special Review (Section 26.64.040): Special Review is required for the following:
. To increase the maximum allowable floor area in the C-l zone district from 1:1 to 1.5:1;
· To establish the parking requirement for affordable housing and to convert the existing commercial
spaces on the property to residential use via a cash-in-lieu payment for the commercial spaces; and
· To reduce the dimensions of the required trash/utility service area,
Floor Area: The applicant proposes to increase the maximum allowable floor area from 1: I to 1.5: 1. A
breakdown of the existing and proposed floor area is provided on page 20 of the application. To increase
the allowed floor area to 15,000 square feet, 60% of the additional floor area shall be approved for
residential use restricted to affordable housing.. Of the additional 5,000 square feet that is subject to special
review, 3,000 square feet is proposed to be used to develop the affordable housing units, which conforms
with the 60% requirement. The development application shall also meet the following conditions:
1. The mass, height, density, configuration, amount of open space, landscaping and setbacks of the
proposed development are designed in a manner which is compatible with or enhances the character of
surrounding land uses and is consistent with the purposes of the underlying zone district.
2. The applicant demonstrates that the proposed development will not have adverse impacts on
surrounding uses or will mitigate those impacts, including but not limited to the effects of shading, excess
traffic, availability of parking in the neighborhood or blocking of a designated view plane.
Response: The maximum allowed height in the C-1 zone district is 40'. The flat roof of the proposed
structure will achieve that maximum height, and the elevator tower and chimney will exceed that height,
as allowed by Code, The existing building height is 20', which represents a two story volume, and the
surrounding stmctures range from 2 1/2 to 4 stories in height. In most cases the ridges of adjacent
pitched roofs may achieve 40', but the Concept 600 building is the only structure with a flat roof which
is close to the 40' maximum height limit. Though the lot is not within a designated view plane, the
additional levels will impact the view of Aspen Mountain from some of the Concept 600 units. The
design is sensitive to tllis fact, in that the upper level does not span the full width of the Structure and has
a flat roof, Since a pitched roof is measured differently than a flat roof, the ridge of a pitched roof could
actually exceed the 40' maximum height.
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The application states that the existing building contains approximately 8,500 square feet of floor area;
however, the theaters occupy a two-story volume, which is not reflected in FAR calculations. The actual
perceived mass of tile existing structures (based on doubling the existing footprint) would be that of an
approximately 14,600 square foot structure. Therefore, in order to allow additional mass, and
specifically, additional floor area, on the site, the design must emphasize breaking up the mass in order
to minimize its appearance and impact on the surrounding area.
The residential units will be set back from the existing structure in order to reduce the perceived mass
and to step the structure down in scale as it approaches the adjacent structures. Setting back the
additional levels from the existing front facade will also prevent shading on Main St. Thetable below
summarizes the setbacks from the facades of the existing structure.
Setbacks from Facade of Existing Structure
Facade
Proposed
Second Level
18'
0'
0'
18'
Proposed
Third Level
36'
21'
13'
24'
North side (Main St.)
West side
East side
South side (l!lley)
However, though setting back the additional levels reduces the perceived mass, staff feels that the design
could provide additional variety to help break up the mass of the structure. The additional levels are
"boxy" and present flat facades to Main St. and to the alley, and the design does not provide a strong
connection between the existing and proposed portions of the structure. The design is compatible with
the surrounding buildings, but does not enhance the area.
Staff appreciates the efforts of the applicant to provide high quality affordable units which exceed the
minimum net livable square footages required by the Affordable Housing Guidelines, but is wary of
allowing larger units at the expense of adding additional bulk to the structure. Several neighbors, though
supportive of the applicant's offer to create affordable housing, have expressed their concern with the
mass of the structure and the necessity of "pushing tile envelope" or "going to the exceptions"
(increasing the allowed FAR) in order to accommodate the proposed project. Staff questions whether it
is necessary to build out the full 15,000 square feet of floor area in order to accommodate this project. If
the affordable units were deed restricted as Category 2 units, as recommended by the Housing Office,
then the minimum required net livable square footages would be reduced, and the size of the units could
be reduced. This would also require a reduction in the proposed square footage of the free market unit
(in order to comply with the requirement that 60% of the additional floor area be restricted to affordable
housing), and would subsequently lessen the mass of tbe building.
The following table compares the Category 2 and 3 minimum net livable square footages with the
proposed net livable square footage,
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The application states that the existing building contains approximately 8,500 square feet of floor area;
however, the .theaters occupy a two-story volume, which is not reflected in FAR calculations. The actual
perceived mass of the existing structures (based on doubling the existing footprint) would be that of an
approximately 14,600 squarefoot structure. Therefore, in order to allow additional mass, and
specifically, additional floor area, on the site, the design must emphasize breaking up the mass in order
to minimize its appearance and impact on the surrounding area,
The residential units will be set back from the existing structure in order to reduce the perceived mass
and to step the structure down in scale as it approaches the adjacent structures. Setting back the
additional levels from the existing front facade will also prevent shading on Main St. The table below
summarizes the setbacks from the facades of the existing structure,
?
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Setback from existing structure
North side (Main St.)
West side
East side
South side (alley)
Second Level
18'
0'
0'
18'
Third Level
36'
21'
13'
24'
However, though setting back the additional levels reduces the perceived mass, staff feels that the design
could provide additional variety to help break up the mass of the structure. The additional levels are
"boxy" and present flat facades to Main St. and to the alley, and the design does not provide a strong
connection between the existing and proposed portions of the structure. The design is compatible with
the surrounding buildings, but does not enhance the area.
Staff appreciates the efforts of the applicant to provide high quality affordable units which exceed the
minimum net livable square footages required by the Affordable Housing Guidelines, but is wary of
allowing larger units at the expense of adding additional bulk to the structure. Several neighbors, though
supportive of the applicant's offer to create affordable housing, have expressed their concern with the
. mass of the structure and the necessity of "pushing the envelope" or "going to the exceptions"
(increasing the allowed FAR) in order to accommodate the proposed project. Staff questions whether it
is necessary to build out the full 15,000 square feet of floor area in order to accommodate this project. If
the affordable units were deed restricted as Category 2 units, as recommended by the Housing Office,
then the minimum required net livable square footages would be reduced, and the size of the units could
be reduced. This would also require a reduction in the proposed square footage of the free market unit
(in order to comply with the requirement that 60% of the additional floor area be restricted to affordable
housing), and would subsequently lessen the mass of the building.
The following table compares the Category 2 and 3 minimum net livable square footages with the
proposed net livable square footage.
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Affordable Housing
Unit Type
Category 2 - Minimum
Net Livable Square
Footage Required
400
600
1,000
2,000
Category 3 - Minimum
Net Livable Sqnare
Footage Reqnired
500
700
1,200
2,400
Proposed Net Livable
Square Footage
Stndio
One Bedroom
Three Bedroom
Total
613
783
1,275
2,671
Since net livable square footage is calculated differently than floor area, it is difficult to convert these
numbers in order to provide a further comparison of the impact of reducing the size of the affordable
units on the allowed floor area of the free market unit. However, it is obvious that the total square
footage would be reduced, and the mass of the structure could also be reduced.
Off-Street Parking: To establish the parking requirement for affordable housing and to convert the existing
commercial spaces on the property to residential use via a cash-in-lieu payment for the commercial spaces,
the development application shall meet the following conditions: .
1. In all zone districts where the off-street parking requirements are subject to establishment and/or
mitigation by special review, the applicant shall demonstrate that the parking needs of the residents,
customers, guests and employees of the project have been met, taking into account potential uses of the
parcel, the projected traffic generation of the project, the projected impacts onto the on-street parking of
the neighborhood, its proximity to mass transit routes and the downtown area, and any special services,
such as vans, providedfor residents, guests and employees. In determining whether to accept the
mitigation or whether to require that the parking be provided on-site, the commission shall take into
consideration the practical ability of the applicant to place parking on-site. whether the parking needs of
the development have been adequately met on-site and whether the city has plans for a parkingfacility
which would better meet the needs of the development and the community than would location of the
parking on-site.
Response: The applicant is unable to meet the off-street parking requirements for the commercial and
residential components of this project. The footprint of the existing structure leaves very limited space in'
which to accommodate parking. The existing parking spaces are currently used by employees of the.
theaters; no on-site parking is provided for patrons of the theaters.
The applicant proposes to use the four existing parking spaces on-site for the four residential units. In
order to accomodate the trash area on-site as required, the applicant is unable to provide four spaces with
unobstructed access to the alley. Since the Code prohibits stacked parking for separate units, the
applicant proposes to provide two spaces for the free-market unit (including the stacked space) and two
spaces for the affordable units, therefore, one of the affordable units, presumably the studio unit, would
be deed-restricted without parking.
The applicant proposes to make a $90,000 cash-in-lieu payment for six parking spaces: to replace the
four spaces which are currently utilized by theater employees and to mitigate for the second parking
space which would be required for the three-bedroom affordable unit and for the parking space for the
studio unit.
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Traffic generation from the residential units should be minimal, given the project's downtown location
and the ability of residents to use alternative methods of transportation. The limited number of parking
spaces will allow the residents to store their cars on-site, but will also hopefully serve as a disincentive to
auto use.
2. In all zone districts, where the off-street parking requirement may be provided via a payment in
lieu, the applicant shall make a one-time only payment to the city, in the amount offifteen thousand
dollars ($15,000.00) per space. Approval of the payment-in-lieu shall be at the option of the commission,
Response: As noted above, the applicant commits to .pay $90,000 in-lieu of six parking spaces.
Utility/Trash Service Area. Currently a trash/utility service area is not designated on-site and the
dumpsters for Stage 3 are located within the alley right-of-way, The C-l zone district requires that the
trash/utility service area meet the follow.ing requirement: "For up to 6,000 square feet of net leasable
floor area within a building, an area a minimum of 20 feet in length, measured parallel to the alley, with
a minimum vertical clearance of 10 feet and a minimum depth of 10 feet at ground level." The applicant
is constrained by the existing footprint of the theaters, and has worked with BFI to design a functional
trash area on-site with adequate capacity for the residential and commercial uses on the property. The
applicant proposes to reduce the depth of the trash area to 4 feet. Pursuant to Section 26.64.040(C), the
development application shall be approved only if:
1. There is a demonstration that given the nature of the potential uses of the building and its total
square footage, the utility/trash service area proposed to be provided will be adequate.
Response: A letter from BFI (Exhibit 4 of the application) states that the proposed trash area is
adequate, and the proposed recycling bins will reduce the volume of waste.
2. Access to the utility/trash service area is adequate. .
Response: According to BFI, access to the trash area along the paved sidewalk from the alley is
adequate.
3. Measures are providedfor enclosing trash bins and making them easily movable by trash
personnel.
Response: The trash area will be enclosed on three sides and will be covered. Trash bins can be moved
from the enclosure onto the paved sidewalk adjoining the alley.
4, When appropriate, provisions for trash compaction are provided by the proposed development
and measures are taken to encourage trash compaction by other developments on the block.
Response: Trash compaction is not necessary in this location.
5. The area for public utility placement and maintenance is adequate and safe for the placement of
utilities.
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Response: Utilities will not need to be relocated to accomodate this development.
6. Adequate provisions are incorporated to ensure the construction of the access area.
Response: Not applicable.
GMOS Exemption for Affordable Housing {Section 26.100.050.C.3.b)
The City Council may exempt exempt from the growth management competition and scoring procedures
"all affordable housing deed restricted in accordance with the housing guidelines of the City Council and
its housing designee," The three affordable housing units in this project are proposed to be deed
restricted as required as Category 3 rental units.
Subdivision (Section 26.88)
The definition of subdivision includes "Land to be used for condominiums, apartments or any other
multiple dwelling units..." Multi-family dwelling unit is defined as "three or more attached dwelling
units... or one or more dwelling units located within an office, retail or service commercial building."
Therefore, subdivision approval is required for this project, although the applicant does not propose to
divide the land into separate interests.
A proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan and with the
character of existing land uses in the area, shall not adversely affect the future development of
surrounding areas, and shall be in compliance with all applicable requirements of this title, The project's
compliance with these requirements is addressed in the staff responses to the GMQS criteria.
Surrounding parcels are already fully developed, and this project should not impact future redevelopment
of those properties.
Many of the subdivision standards are designed to be applied to land subdivisions rather than to a
subdivision which expands an existing building. The applicant has responded to the standards in the
letter dated November 21, which is attached to the application, Staff has responsed to the standards
which are applicable to this development.
Affordable Housing: The applicant represents that over 60% of the total residents of the project will be
housed in affordable housing units, based on the occupancy standards in the Housing Guidelines. This
percentage complies with the goal of the AACP to require new residential subdivisions to provide a
minimum of 60% affordable housing.
School Land Dedication: The November 21 letter from Alan Richman provides the methodology used to
determine the cash-in-lieu fee required. Based on the proposed square footages for the units, $2,441.47
would be paid prior to, and on.a proportional basis to, the issuance of any building permits for the
residential units.
STAFF RECOMMENDATION: Staff recommends that the Commission table the application to allow
the applicant to reconsider the mass and height of the proposed structure, and its impact on and
compatibility with the surrounding structures.
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ALTERNATIVE RECOMMENDATION: If the Commission determines that the proposed development
complies with the required standards and if the project receives an acceptable GMQS score, staff
recommends that the ComDlission approve the Stage 3 Penthouses Special Review and Subdivision, subject
to the following conditions:
1. Special Review approval is contingent upon approval of the Subdivision and GMQS Exemption by
City Council.
2. Prior to the issuance of any building peimits, the applicant shall deed restrict the affordable housing
units as Category 2 units pursuant to tile Aspen/Pitkin County Housing Guidelines. Upon approval
of the deed restriction by the Housing Office, the applicant shall record the deed restriction with the
Pitkin County Clerk and Recorders Office with proof of recordation to the Community
Development Department.
3. A tree removal permit for relocation of the three spruce trees shall be submitted to the Parks
Department prior to submission of any building permits for the residential units.
4, The $90,000 payment-in-lieu of parking shall be due and payable at the time of issuance of a
building permit for the residential units,
5. The subdivision agreement and plat shall be recorded in the office ofthe Pitkin County clerk and
recorder. Failnre on the part of tile applicant to record the plat within a period of one hundred
eighty (180) days following approval by the city council shall render the plat invalid and
reconsideration and approval of the plat by the commission and city council will be required
before its acceptance and recording, unless an extension or waiver is granted by city council for a
showing of good cause. The subdivision plat shall also be submitted in a digital forinat
acceptable to the Community Development Department, for incorporation into the City/County
GIS system.
6. A drainage mitigation plan shall be provided with the building permit application for review and
approval by the City Engineer.
7. The applicants shall agree to join any future improvement districts formed for the purpose of
constructing improvements in adjacent public rights-of-way.
(
8, All new surface utility needs and pedestals shall be installed on-site,
9. The in-lieu fee for school land dedication shall be paid prior to, and on a proportional basis to, the
issuance of any building permits for the residential units.
10. All material representations made by the applicant in the application and during public meetings
with the Planning and Zoning Commission shall be adhered to and considered conditions of
approval, unless otherwise amended by other conditions.
RECOMMENDED MOTION: "I move to table the Stage 3 Penthouses application to to
allow the applicants to reconsider the mass and height of the proposed structure, and its impact on and
compatibility with the surrounding structures."
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ALTERNATIVE MOTION: "I move to approve the approve the Stage 3 Penthouses Special Review and
Subdivision, subject to the conditions listed in the Community Development Department Memo dated
December 17, 1996".
Exhibits:
A - Application Packet
B - Referral Comments
C - Public Comment
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MEMORANDUM
TO:
Growth Management Commission
THRU:
Mary Lackner, Acting Deputy Director
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FROM:
Suzanne Wolff, Planner
RE:
, Stage 3 Penthouses Metro Residential GMQS Application - Public Hearing
DATE:
December 17, 1996
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SUMMARY: The applicant is requesting one metro area residential GMQS allotment to develop one free
market dwelling unit above the Stage 3 Theaters. Associated reviews which will be separately considered
by tl1e Planning Commission and the City Council include GMQS Exemption for three affordable housing
units, Special Review and Subdivision. Staff s recommended scoring of the project is attached as Exhibit
A, and the application packet is attached as Exhibit C.
No other applications were received for metro area residential GMQS allotments,
APPLICANT: George Carisch, represented by Alan Richman & Dave Gibson
LOCATION: 625 E. Main St.; Lots E, F and G and the east 10' of Lot D, Block 98, City and Townsite of
Aspen
ZONING: C-1, Commercial
LOT SIZE: 10,000 square feet
BACKGROUND: The Playhouse Theater was constructed on this site in 1973. The theater was
remodeled in 1985 to accommodate three theaters,
REFERRAL COMMENTS: Comments from the Parks, Housing and Engineering Departments, and the
Fire Marshal are attached as Exhibit B. These comments have been included in staff's responses to the
GMQS scoring criteria, where applicable.
STAFF RECOMMENDATION: Staff has awarded the project a total score of 12, To receive a
development allotment, an applicant must receive a score of at least three points for each of the four growth
management scoring criteria, Staff recommends that the Growth Management Commission accept staff's
scoring of the project. Granting of tl1e allotment will be contingent upon approval of tl1e associated reviews
by the Planning Commission and the City Council.
RECOMMENDED MOTION: "I move to forward the scores for the 1996 Metro Residential GMQS
competition to the City Council and the Board of County Commissioners."
Exhibits:
A - Staff s recommended scoring
B - Referral Comments
C - Application Packet
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EXHIBIT A
STAGE 3 PENTHOUSES - METRO AREA RESIDENTIAL GMOS SCORE SHEET
Scoring: Points shall be awarded for performance relative to each of the four scoring criteria, Possible
scores for each criterion shall range from zero, the lowest possible score, to five, the highest possible
score. It is recognized that small projects could be at a competitive disadvantage when scored against
large-scale projects. It is intended, therefore, that projects be evaluated according to reasonable
expectations regarding what could be expected given their size and scale. A score of zero shall be
awarded to projects that, although they had the opportunity to comply with scoring criteria and had the
ability to advance stated community goals, will actually contribute nothing to implementation of the
articulated vision and may, in fact, move the community further away from its stated goals. A score of
three indicates that a project will move the community closer toward attaimnent of its stated visions and
make a positive contribution toward the implementation of articulated goals. A score of five indicates
that a project demonstrates exceptional sensitivity to the stated visions of the community and will result
in significant movement toward implementation of those goals, Other scores along the continuum from
zero to five will be awarded based on the degree to which projects will implement stated goals. No
growth management allocation shall be awarded to projects that do not receive a final average score of at
least three points for each of the growth management scoring criteria of Pitkin County Land Use Code
Sections 3-l60.50-C.1, 3-l60.50-C.2, 3-l60.50-C.3 and 3-l60.50-C.4, or of the City of Aspen Muriicipal
Code Sections 26.100,OSO(C)(1), 26.100.0S0(C)(2), 26.100.0S0(C)(3), and 26.100.0S0(C)(4).
Criteria:
I. Revitalizing the permanent community: Residents of the Aspen area have long recognized the
need to preserve the community's character and identity as more than just a resort, a collection of second
homes and a tourist shopping mecca, They recognize that a "critical mass" of permanent residents and
local serving-businesses is necessary to make any community function, They recognize, too, that the
vitality brought to the Aspen area by full-time residents is being seriously diluted by the inability of
working people to live in their own community.
As a result of these concerns, one of the community's central goals is to create a community with
a size, density and diversity that encourages interaction, involvement and vitality and one that provides
opportunities for its workers to become a permanent part of the social fabric,
There are a variety of ways in which a project might address the goal of revitalizing the
permanent community, including, but not limited to the following:
a. providing high-quality, on-site, affordable housing for permanent residents;
b. providing site appropriate mixing of free market and affordable housing for efficient
provision of services such as transit and discourages site planning that isolates affordable and free market
units;
c. providing a housing package consistent with the Housing Authority Guidelines with an
emphasis on family-oriented housing where and when appropriate;
d. creating affordable dwelling units through buy-downs or conversion of existing free
market units; and
e. providing "locally serving commercial space/businesses."
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STAFF COMMENTS: The applicant proposes to provide three affordable housing units: a studio, a
one-bedroom, and a three bedroom. Thelocation of the units on Main St. creates opportunities for
working residents to live in-town, and hopefully discourages them from using automobiles.
The units meet or exceed the specifications of the Affordable Housing Guidelines: all three units exceed
the minimum net livable square footage standards for Category 3 units, have additional storage space and
decks, contain their own laundry facilities, and are located fully above ground to provide natural light into
the units. The units all face Main St., and do not have any windows with southern exposure. The applicant
proposes to rent the units and to deed restrict them as Category 3 units, The Housing Office recommends
that the units be deed restricted to Category 2 to correspond with the income level of Stage 3 employees,
The project is consistent with the following standards and goals of the AACP:
· "encourage infill development within the existing urban area",
. "mix free market and affordable housing", and
· "increase the use of upper floors of commercial buildings to provide affordable housing on-site in the
commercial core"
The project also maintains a local-serving commercial use, and reduces the amount of potential commercial
buildout in the downtown area.
PLANNING STAFF'S RECOMMENDED SCORE: J.
COMMISSIONER'S SCORE:
2. Providing transportation alternatives: Residents recognize that reducing dependency on the
automobile is vital for the long-term livability and health of the Aspen area. Their plan is so bold as to
envision a time in the not-too-distant future when the automobile is not the dominant means of moving
people in and around the community, They are seeking a balanced, integrated transportation system for
residents, visitors and commuters that reduces traffic congestion and air pollution. These are a variety of
ways in which a project might address the goal of providing transportation alternatives, including, but
not limited to the following:
a. reducing the need for private vehicles as a form of transportation;
b. facilitating and encouraging year-round pedestrian transportation;
c. helping to implement a valley-wide mass transit system;
d. providing needed improvements to the existing RFTA system;
e. increasing the number of available transportation choices;
f. creating a less congested downtown core;
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g. helping to implement the transportation planning policies of the AACP and the Aspen to
Snowmass transportation plan;
h. altering land use patterns to accommodate and contribute to a more efficient and
effective transit system;
i, creating, improving or expanding public commuter trails, walkways or bikeway facilities
that ate consistent with the goals of the AACP and associated plans, such as the pedestrianlbikeway plan;
j. locating developments near transit facilities;
k. providing on-going transportation to and from the airport, ski areas and shopping areas;
1. providing on-going employee transportation services such as van pools or buses at no
cost to employees;
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m. providing bicycle parking, showers and lockers for employees; and
n. providing secure bicycle storage for guests and employees.
STAFF COMMENTS: As an infiIl project which is creating affordable housing in-town, this project
automatically contributes to the goal of providing transportation alternatives. Residents can easily walk,
ride bikes, or take the bus to work, shop or recreate, which will create less congestion in the downtown
core and lessen air pollution caused by vehicle traffic. Limited parking should also serve as an auto
disincentive; each residential unit will be assigned one on-site parking space. The site is constrained by
the existing Stage 3 structure, so the development is unable to provide the required amount of parking
on-site, The applicant proposes to pay a $90,000 in-lieu fee to mitigate the six spaces that cannot be
provided on-site.
The applicant represents that the proposed residential development will create less traffic than additional
or alternative commercial development on this site.
PLANNING STAFF'S RECOMMENDED SCORE: ;!
COMMISSIONER'S SCORE:
3, Promoting environmentally sustainable development: Residents of the Aspen area recognize
that the natural environment is one of the community's greatest assets. As a result, they wish to allow
only that development that is environmentally sensitive and that promotes individuaIly responsible,
ecological lifestyles. The community seeks to foster a high level of consciousness relative to resource
conservation, wildlife protection and environmental sustainability.
These are a variety of ways in which a project might address the goal of promoting
environmentally sustainable development, including, but not limited to the foIlowing:
a. orienting building sites, streets and other project features in order to maximize potential
for use of solar energy and other renewable energy resources;
b. protecting and preserving existing trees and other mature vegetation during and after the
construction process;
c. using fewer or cleaner wood-burning devices than allowed by law;
d. removing or replacing existing dirty wood-burning devices;
e. increasing community access to natural and open space areas;
f. promoting community recycling efforts;
g, landscaping with low-water-use plant materials and using chemical-free landscape
maintenance techniques;
h. employing measures that reduce PM 10 levels in the non-attainment area;
i. preserving and efficiently using environmental resources during all phases of
development, including types of materials used and future energy and material needs of the project;
j. completely avoiding" 1041" hazard areas and ridge line development;
k. enhancing existing wildlife habitat;
I. completely avoiding S040 Greenline issues; and
m. completely avoiding Stream Margin Review issues.
STAFF COMMENTS: By developing an infiIl project, the applicant is not extending the urban area or
removing open space. The existing theater structure will remain, therefore, there will not be additional
impacts on the land. Three existing spruce trees are proposed to be relocated on-site to the existing
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garden area. The existing building footprint, combined with the parking and trash requirements, prohibit
the applicant from providing additional open space on the property.
The applicant proposes to install one wood-burning device. The applicant is making a positive
contribution to air quality by providing one wood-burning device when two could be allowed (Section
13.OS.070.d of the City Code allows two "Department certified devices in any single building" which
may include wood-burning devices), however, the applicant could make a stronger commitment by
opting not to have any wood-burning devices.
The applicant represents that recycling bins will be provided on-site, the free-market unit will be
designed to take advantage of passive solar gain, and water-saving plumbing fixtures will be installed.
The applicant states that "the units will be designed to at least meet the requirements of the City's energy
code". The project must comply with the Model Energy Code, but could opt to provide additional
measures in order to exceed the requirements.
PLANNING STAFF'S RECOMMENDED SCORE: ;!
COMMISSIONER'S SCORE:
4. Maintaining design quality, historic compatibility and community character: Residents
recognize the importance of design within the community's historic setting. It is a vital component of the
community's economic well-being and cultural heritage. They believe that public architecture should
support and enhance community life, Their goal is to ensure maintenance of community character
through design quality and compatibility with historic features.
These are a variety of ways in which a project might address the goal of maintaining design
quality, historic compatibility and community character, including, but not limited to the following:
a, restoring structures listed in the inventory of historic structures;
b, improving and maintaining the appearance and function of alleys for commercial, office
and residential uses;
c. ensuring design compatibility with existing buildings in the vicinity of the proposed
project, in terms of scale, massing, building materials, fenestration, other architectural features and open
space;
d. including porches or other "pedestrian-friendly" features;
e. retaining and promoting eclectic and varietal businesses along main street that maintain
and enhance the special character of the historic district;
f. ensuring the site's useability for social activities.
STAFF COMMENTS: The residential units will be set back from the existing structure in order to
reduce the perceived mass and to step the structure down in scale as it approaches the adjacent structures.
The setback from the existing front facade will also prevent shading on Main St. The table below
summarizes the setbacks from the facades of the existing structure,
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Setback. from Facade of Existing Structure
Facade
Proposed
Second Level
18'
0'
0'
18'
Proposed
Third Level
36'
21'
13'
24'
North side (Main St.)
West side
East side
South side (alley)
However, staff feels that the design does not provide variety which would help to break up the mass of
the structure: the additional levels are "boxy" and present flat facades to Main St. and to the alley, Also,
the design does not provide a strong connection between the existing and proposed portions of the
structure. The design is compatible with the surrounding buildings, but does not enhance the area,
The application states that the appearance and function of the alley is being improved by removing trash
containers and locating them on-site, and the pedestrian path along the western edge of the property will
be maintained.
PLANNING STAFF'S RECOMMENDED SCORE: ;2
COMMISSIONER'S SCORE:
TOTAL SCORE: 12
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EXHIBIT
,
PHILIP RarHBLI.J~
617 E COOPER AVE =314
ASPEN, co. 81611
~
Dec~ober 10,1996
Planning & Zoning Co:rrnission
Aspen Pitkin Coyunty Development
130 So Galena
Aspen, co 81611
Dept
Attn: Suzanne Wolff, Planner
Re: Stage 3 Penthouse Subdivision
Dece~r 17, 1996 Hearing
Dear Ms Wolff:
In regard to this development, I wish to submit my thoughts of the compat-
ibility, scale, design, and impact on the surrounding area of the applicant's
proposa 1 .
Having owned a .cdndominium in Aspen since 1970, my wife an I are currently
constructing a detached residential dwelling at 624 E Hopkins - directly
behind the Stage 3 building - anticipating this to be our permanent home. Our
new home includes an Accessory Dwelling Unit and we share the concern of the
City and the desireability of creating affordable housing.
In the interest of brevity, this will set forth my general concerns, with the
s~cifics to be presented to you at the public hearing.
Basically, this proposal, while worthy in the interest of creating much-needed
affordable housing, fails to meet reasonable review standards compatible or con-
sis';:ent with the underlying C-l district and neighborhood characterisUG:s.
1. Parking - Gross inadequacy for the number of dwelling units being pro-
posed in cinfiguration neither permitted by code nor practically func-
tional, and I question whether code permits any waiver of residential
multi-f~~ly parking requireoents in such a shared configuration.
2. Mass - The proposed building will create a structure incompatibile
with the neighborhood character, vastly increaSing the mass of an al-
ready massive structure with no attempt at mitigating adverse impacts.
I question whether provisions of the code as to dimensional require-
ments are being met insofar as (a) lot area required per dwelling unit
in mUlti-family configuration, (b) interior floor area of existing
building, plus (c) volume calculation of the existing thaters, to be-
come part of a mixed-use building of residential character.
I submit that this proposal "pushes the envelope", isjust too much and
fails to consider human scale.
3. Height - The proposed 40' roof height ( plus mechanical and chimney
flue structures) is not in accord with the Neighborhood Character De-
sign Guidelines, which calls for buildings to step dOwn inscale as they
approach smaller adjacent structures, in this case, on all sides of the
site.
Fe: Stage 3 Penthouse f"",division Pa?e 2
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4. Density - The existing theater is actually two stories and the ?ro-
posal adds two more. T"e addition of four residential units to the
currently oversized and high occupancy structure adds excessive Con-
centration of activity into this confined area and normal usage will
have a substantial auto and delivery truck traffic 1~pact on the
surrounding area.
5. Configuration - The existing boxy building is being replicated with
two additional boxes above, with little, if any, design features.
The South (alley) elevation proposes retaining the existing shabby
stucco wall, repeating the flat facade in the third and fourth floor
elevations. albeit with minor setbacks and places a hot tub at the
very edge of the building at the alley lot line. There is no evidence
of thoughtful desi.gn or of compatibility with neighboring structures.
The policy of providing affordable housing is laudable, but not at the expense
of good site design or of mitigation efforts of adverse effects on the neigh-
borhood. I strongly urge you to reject this popoosalas presented and to con-
sider a resubmitted proposal more co.~patible with or enhancing the character of
surrounding land uses, of hwnan scale, and with quality of design, including
functional parking pouvision.
I urge the P & Z members visit the site to verify my assertions, and I would
be happy to be available between 11:30 and 12:30 on the meeting day behind the
Stage 3 theater, where the driveway of our new home enters the alley. If any
other time is preferable, kindly call me at 925-5554 Tuesday morning.
l.,ank you for your consideration.
. .~ ~ -\
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Philip Rothblum
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Marcia & Bob G. Bailey
3215 Tarry Hollow
Austin, Texas 78703
512/4775500
HomeOfflce Phone & Fax
512/477 8116 (*51)
Oec. 3 - Feb. 25
600 East Main # 406
Aspen, CO 81611
Phone and Fax
970/920 9724
December 11, 1996
Ms. Sara Garton, Chair
Aspen Planning and Zoning
Aspen, Colorado
Dear Ms. Garton,
Re: Stage 3 Metro Residential Request
December 17, 1996
My wife and I own property in Concepts 600, Unit 406, immediately across the street
from Stage 3. The property was purchased in her name in 1990. We have major concerns
concerning the request to build two floors of housing above the theater,
I have looked at the plans submitted and learn that the new proposed height of the building
will be approximately 40 feet. That height is concerning enough, but it is my understanding that
in addition to that, allowances are to be made for an elevator, which could easily be another 5 to
10 feet. I understand that the exact heights were not given on the plans, but realistically, part
of the new building, with the elevator, could be between 45 and 50 feet.
My concern is:
1. It will obstruct the treasured view of Aspen Mountain that we and our
fellow 35 plus owners will have. Many of these owners have owned their property
for ten to twenty years.
2, Because of the loss of view, there is no doubt that the actual value of our
property will be lowered. Some of those on the lower floors will not be able to see
any of the ski runs, That is what attracted most of us to this property, and why we
were willing to pay additional value for the property. I talked to a local broker this
morning, and he said that there is no question but what this is true.
I realize that always there are many sides to these issues. One of the enticements driving
this request is the offer to create additional affordable housing units. I understand the need we
have for such additional units, but I wonder if the owner is doing so only in order to secure the
fourth unit that will certainly not fall in the category of affordable housing.
The parking is another issue involved. My un,derstanding is that in order to waive some
of the requirements, a fee of $15,000 is offered fqr each space requirement not met. This only
adds to the adage that "everything has a price".!
We, owners of housing immediately across the street, request the following input before
any consideration or decision is made:
EXHIBIT
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1. It blocks out the view for which we paid.
2. It will directly reduce the value of our property.
3. If such construction is allowed, there will be some possibility that thirty owners will
seek to have our tax evaluation lowered. I do not have our tax statements with me, but
it would be very safe to estimate that the current value of our property is on your tax
rolls at this time between $10,000,000 and $15,000.000.
We are a major. Contributor to the tax structure in this community. We are not one
building across the street, but more than 30 individuals who own property and
contribute to this community.
4. Definite consideration should be given to the fact of adding additional
traffic, parking and noise to the down town section. Presently at peak traffic periods
and certainly around "picture show time" we have enough traffic in this downtown area,
without adding more housing and automobiles.
5. We admit that whenever anyone buys a property, this type of loss could happen,
but our concern in this case is that in order for this permit to be issued, your body
can not do so without "going to the exceptions. "
I feel there is much difference in accepting the risk of the possibility of what might
be normal, from that which could only be achieved by "going to the exceptions."
6. This issue should not be decided based on how much money the petitioner offers to go
outside the basic rules.
Thank you for giving consideration to this position. I certainly would make this
presentation directly to you next Tuesday night, but a prior commitment out of town makes it
impossible. My wife plans to be there, but will probably prefer not to make a public statement.
Also thank you for the many, many hours each of the committee gives to our city in
serving as members of the P & Z. So very often it is a thankless job.
Respectfully,
,./1
~:~ . ~J:~..
'-~~rcia and Bob Bailey .;l--~.
.-'7
PS My compliments to your staff member Suzanne Wolff. During my visit with her I found
her to be very fair, knOwledgeable and helpful,
.
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Aspen l'la.'Uling ll::ld ZOrll!:[, Co1l.:1llis:io;:
s I Sa;.. aa.""':J, Choir
We ar~ (I\l,-ners of l~e clu;:le>: z;: 629 E. 1'.1,;,., al'lO hive St"~ral COn~ern5 aboui th~ Stage 3 applic"""L
I. . The heigh! of tho propos..a buiJdJng will blod our view to th~ West by at lea!'! 3D% to 4Q%
The panorar.lic viewof our prope:ty and its central location were major f~ for our purcl:as-:
i.tI. 198:. Pr:v;acy ",-Jl at>') be affected by li,,:in~ \1;ljts ot: top of tr.= theater.
2 1"a:king a1 the theslcr is already a problem. Takmg aw::;,. emplo:;cc res."'.ee locations is DC: a
goodj~ Four spa.:e. for fou ~identi~ locarions \\in not be e.oougt 1'0= persomJ and Visitor
= for tbos~ 1.lIllts. We have 0,-, occa.,iOT'\ nac to gC' to the theater and h~ve i;"n; .t:;.o','c;l off
Spring Streq tha: bloded the drive to our basemen: garage;. Th;re arc four undcrgrou::lcl
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plI..:"kinz spaces for Ow tv,,;c; units.
3,
The st::irs at t.l)e to? 0: O~r btilldi..cE' look out of proportion on the arc:.itcct plans that 3ho....~ (
:Nol'!b. eJevanon from W..e:i:: St'~: If t!:a: is truo, ram COn"crned the buucl.!.ng lines are ,~:-:-tct
in the drawings,
4, A b1.lild:nz 50% oVer the aHowed $qU!iIe (OCia&e bo.sed on the lot siu is a C<'lnC;m ))oes the
currex:;,t building meet all the current coci~ for builcilI;g in Aspen today'? ih~ buiidmg :l.." v.-e
uoderstancl i. 20 yeon; old. W as asbeslO~ w.eu in its COllStrUetion' Is \hi. or a..,)' O'ther problems
oonsiSlent with an &gine building or doe.\; it present problems in adding two floors above CU!l'c.r.t
Structure?
w~ would appreQare more jnformatior. about tile Sta~e 3 Application.
'Ibllk you,
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Neil and Donna Gnnt
-
EXHIBIT
1 25
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Concept 600 Building ~
Condominium Association
600 East Main Street
P.O. Box 12344
Aspen, Colorado 81612
(970) 925-2371
January 14, 1997
Concept 600 Condo Association authorizes the office of Hill, Edwards,
Edwards and Adkinson, L.L.C. to represent them before the City of Aspen, and
or the Aspen Planning and Zoning Commission in regards to the Stage 3
Construction Application.
12 DVvttl..L&L
R. D. Miller
Vice President
Concept 600 Association Board
EXHIBIT
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Aspen Planning & Zoning Board
130 S. Galena St.
Aspen, CO 81611
January 13,1997
Dear Ms. Garton,
I am writing to your board to express my concerns regarding the Garish Theatre proposal
to add 6,500 sq. ft ofliving space to the existing building. While I feel that this amount of
additional FAR is excessive and will result in a building completely out of scale with the
neighboring buildings, I would specifically address the deed restricted housing portion of this
proposal.
It is my understanding that APCHA has approved this project for their deed restricted
rental units without specifying category. I feel that these three units, or whatever deed restricted
units are finally approved should be offered for sale and not kept as rentals. My reasons are as
follows:
1, With a project of this nature, it will be almost impossible to insure that proper
rental guidelines will be followed in the future. APCHA has little policing capability and in fact
acts to redress violations are on a complaint basis only.
2. There is little motivation on the part of the developer nor procedures available to
insure iliat these rental units are even made available to the general public. In many cases, iliese
units get "lost" or are utilized by owners to free up free market units for rental.
3. If the developer decides to keep the deed restricted units for the exclusive use of
his employees, as may be his right, then you create the questionable situation where a local
employee's employment and housing are incontrovertibly connected. Not a happy circumstance
for the employee.
4. If these properties are offered for sale, they ca., bc better controlled by APCHA,
both initially and with each subsequent sale.
5. Selling these units could free up additional rental units as employees "move up"
to ownership from deed restricted or free markets rentals.
Further, it has been my experience as a rental agent for fifteen years that smaller size units
(studios, one bedroom) are in the greatest demand, and equally important in the lower income
categories. I would favor an increase in the number of units to perhaps four to five studios in
category one or two to what the current proposal requests.
Thank you for your time and consideration in this matter.
(/
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Broker
Sincerely
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EXHIBIT
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100 South Spring Street, Aspen, Colorado 81611 (970) 925-4772 FAX (970) 925-9014
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Dear Doz"d,
I am a resioer,t cf 631 E rv;;::n, lccatec c'jr~ctii; east of t:'ie Sta;e 3
Treaters
I would like to g,' o~ recore, vO'::.g son-,e co~:er~s I have vvitrl
the T~eaters' apP"catlor, for aco',rg tr,ree "affordabl€ hOL.sng"
. units :l!nd or,,, pe'1thouse apartment,
1) -li,,!r plan to add ar, addition,,! 6:'\C'0 Sq 'en exceecs the f'oor
erea ratio guideline by fifty perc€'lt. That is excess''!!?
2) The P€!'1thouse apc"tmert INO\.IO be look irG cown or, r;",y rcc'.
toe patiO, rl;~r,ing I'1'IY prlvacy,
3) The acc.t:o'l \voult SUbsta:,tlG.11,' ot,struct my View to th,.. west.
Inclt;dirg 5haao1l; Mouf",teiri ,mo Mt SOpriS, by as much as fCf"ty-
pe,ce...t.
Tre decio:t'g factor ':'\ PiJrc"'1asii'lg rny r,eN her-,e was the view frCi:'i
my rOOf-top patio Tne a'"ch:tectu'"e of trH' et'1t1re )iV1r'\g area on thl:
Second floor is designee uourd a S~lra1 stalrwalle2dng up to the
third floor pc:tie
H,e Sta;le 3 p:,,~, If ap;::roveo, wovlC not Of",)Y se-1QUsly Impact the
dally enjcymerit ormy home but the resale value as wen,
Sincerely,
~~
Martin...)
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EXHIBIT
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PRISNICKEL
t I{' 1:1:J' J :1iu1!1lJ
F.;X TRJ.l1S~!ISSICN COVER L...""T'!'ER F.^X NUMBER 1-415-499-1801
TO: Aspen Planning & Zoning Com~2ssion
FAX NUMBER:
9iO 920 5439
ATI'ENT!ON: Suzanne Wolff
'IDrl>L PAGES BEING FAXED INQ,U1Jr:;G TEIS PAGE
1
FRCM~Nl>l1E: Ju::-ine Biers
TELEPHCNE NUMBER: ( 415 ) 499 1169
DATE December 1i, 1996
MESSAGE
Re: Stage 3 theater subdivision
I am the owner of the Hunter Square building next door to Stage 3.
My late husband, Irving Biers, built a park between these two buildings
as he was knowledgeable of the importance of green belt open space.
I am concerned about the height of the proposed bUilding and the impact
it will make on sunlight in this mature garden space. There doesn't
seem to be much open space left in downtown so this space will become
more important in our future.
I am also concerned that light will be obstructed for our first, second,
and third floor commercial tenants.
Sincerely,
CJw~ CALw
Jurine Biers
EXHIBIT
i
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..ALlFORNlA BRANCH OFFICE
29CXJ Las Gal:lnas Ave,
San Rafael, ~ 94903
415499-1169' Fax 499-1801
HOME OFF:CE
5CD Lake Ave., Suite # 159
Lake Wortn FL, 33450
407482-4593
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HILL, EDWARDS, EDWARDS & ADKISON, L.L.c.
TIlOMAS C.IDLL
JOSEPH E. EDWARDS, JR.. p.e.
JOSEPH E. EDWARDS. m
TIlOMAS L. ADKJSON
CENnNNW. PLAZA SUll.OING
502 MAIN STREET. SUITE 201
CARBONDALE. COLORADO 81623
1ELEPHONE
(970) 963.3900
FACSIMILE
(970)963-3131
January 14, 1997
City of Aspen
Planning & Zoning Commission
130 South Galena
Aspen, CO 81611
RE: Stage 3 Penthouses - GMQS Special Review and Subdivision _ Public Hearing
Ladies and Gentlemen:
This fIrm represents the Concept 600 Condominium Association, which condominium is located
across Main Street from the Stage 3 property. On behalf of the Association, please enter this
letter into the record of the public hearing for the Stage 3 Penthouses application to be heard
January 14, 1997.
INADEQUATE NOTICE
The Association objects to consideration of this application at this time on the grounds notice was
inadequate. Adequate and proper public notice is a jurisdictional prerequisite to holding a public
hearing. The notice in this case is insufficient in at least the folIowing particulars:
1. Notice not given. Section 26.52.060C.5. (see Exhibit A) states that "AIl adjourned public
hearings shall commence only upon the giving of all notices which would have been
required were it the initial call of the public hearing." On December 17,1996, there was
no quorum of the Growth Management Committee (only one member of the County
Planning & Zoning Committee was present) and, therefore, the Growth Management
meeting was not held. Since a GMQS alIotment is a prerequisite for subdivision, the
meeting to consider the subdivision request was also not held. No meeting was opened,
no testimony was taken, and aII proceedings were postponed. The word "adjourned" is
defmed in Black's Law Dictionary as "to put off; defer; to postpone." In the Webster's
EXHIBIT
I I~
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 2
New World Dictionary, the word "adjourned" is defmed as "to put off or suspend until
a future time." As there was no quorum present and the entire meeting was put off until
January, it was an adjourned meeting, as distinguished from a meeting that had already
been in process and was then continued. Therefore, a renoticing is required by the Code.
2. Inadequate manner of notice. Pursuant to Section 26.52.060E.4.c. (see Exhibit A), notice
for a Growth Management Quota System review requires the notice be published, ~
and mailed. For this public hearing, which involved GMQS review, there was a failure
to post or mail the notice for the GMQS review as required by subparagraph c.
3. Inadequate content of the notice. The notice published in the As:pen Times on
November 16, 1996 for the GMQS review and the notice published on November 30,
1996 for subdivision review fail to meet the requirements of Section 26.52.060E.2. in that
neither notice states the address of the applicant (see Exhibit B). Also, the notice of
subdivision review, which was mailed, did not meet the requirements of
Section 26.52.060E.2., which specifies "such other information as may be required to
fully apprise the public of the nature of the application." No mention was made in that
notice of the controversial request to decrease parking and increase the allowed floor area
by 150%.
GMOS AL1.0TMENT
The Association objects to a consideration of this application for a GMQS allotment, since the
proposal cannot meet the required minimum development standards. Section 26.100.070 (see
Exhibit C) lists the minimum development criteria for an application before it Can be considered
for a development allotment. Subparagraph B. requires that "The proposed development.shs.!l
comply with all qpplicable req,uirements of the City Code," This application cannot meet that
minimum development standard or criteria in that it does not meet the Code parking requirements.
1. Additional parkin!? required. Section 26.32.010C. (see Exhibit D) requires that "If
existing development is expanded, additional off-street parking- s:pace shall be provided for
that increment of the expansion as if it is separate development." The requested expansion
is four new residential units. This proposal does not comply with that requirement in that
IlQ additional off-street parking space is being provided for that increment of the
expansion Instead of adding "additional off-street parking. . . for that increment, " the
development proposes to displace the existing employee parking for the existing
commercial use and would push that employee parking onto the streets, aggravating the
already overcrowded parking conditions in this area. Regardless of whether any parking
is required for the affordable units, Code Section 26.32.01OC. requires that "additional
f""'1
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 3
off-street parking ~ be provided" for the new free-market unit and no such "additional
parking" is provided.
2. Failure to have access to the alley or street. Section 26.32.020A. (see Exhibit D) requires
that "Each parking space. . . shall have an unobstructed access to a street or alley." The
proposal is to have "stacked" parking spaces such that some of the spaces would not have
"unobstructed access to a street or alley." These stacked spaces create more congestion
and require the removal of one vehicle in order to get the stacked vehicle in and out of the
interior and less accessible space.
The proposal does not comply with applicable requirements of Section 26.32.010C. or
Section 26.32.020A. of the City Code and, therefore, does not meet the minimum
development standards required by Section 26.100.070B (see Exhibit C), and cannot
obtain a GMQS allotment.
SPECIAL REVIEW
Section 26.64.040 (Exhibit E) provides "No development subject to special review shall be
permitted Unless. . . A.1. The /llllss, height, density, configuration. . . is compatible with. . .
surrounding land uses . . . [and] A.2. . . . the proposed development will not have adverse
impacts on surrounding uses. . . including. . . effects of shading, excess traffic, availability of
parking in the neighborhood. . . ." [and] B. "Whenever the off-street parking requirements of a
proposed development are subject to establishment . . . by special review, the development
application shall ~ be approved if . . . 1. . . .the parking needs of the residents, customers,
guests and employees of the project have been met, taking into account potential uses. . . traffic
generation of the project, the projected impacts onto the on-street parking of the neighborhood .
"
This proposal fails to meet those standards in at least the following particulars:
1. Dimensional requirements. The applicaticn requests by special review an increase in the
allowable floor area of the project from a 1:1 ratio to a 1.5:1 ratio. This application is
extraordinary in that the existing theater use, occupying ground floor area of 8,500 square
feet, nevertheless occupies a building volume or mass that already exceeds the volume
which would be occupied by a building with the 1.5: 1 ratio of floor area since the building
height for the theater use is equal to a two-story building. Thus, the volume or mass of
this building at the present time is the same as a 17,000 square foot floor area building
having two floors with normal ceiling heights. Such a building would already exceed the
1.5: 1 ratio or 15,000 square foot floor area limit for the 10,000 square foot lot. Neither
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 4
of the adjacent buildings have that kind of volume. The massing and visual impacts of the
existing building already exceed what could be allowed even under special review. This
application then proposes to add additional volume and mass by adding a third and fourth
floor, resulting in a building that has the volume or mass and bulk of a building with a
floor area ratio of 2.35: 1 or 23,500 square feet. This proposed building thus will appear
much more massive, blocklike and voluminous than the other buildings on this block.
The special review dimensional requirements provide, in Section 26.64.040A. (see
Exhibit E), that dimensional requirements subject to special review "shall ~ be
approved if . " 1. The mass, height, density, configuration, amount of open space,
landscaping and setbacks are . . . com,patible with or enhance the character of surroundi~
land uses. . . ." [and] 2. ". . . the proposed development will nQJ; have adverse impacts
on surrounding USes. . . including. . . effects of shading, excess traffic, availability of
parking in the neighborhood or blocking of a designated view plane." This application's
additional density which will create a building with the mass and bulk equivalent to a floor
area ratio of 2.35:1 should not be allowed, as it is not compatible with and is more
massive than the adjacent buildings and it creates additional shading on Main Street,
ranging from 16 to 23 feet of shading into the travel lanes on Main Street (see Exhibit F),
and will generate excess traffic and diminish the availability of parking. The height and
bulk of this building, although not in a designated view plane, will block the views from
some of the Concept 600 units across the street. The view plane, while not designated, is
nevertheless important to the adjacent landowners. A similar view plane is in effect one
block to the west to preserve the view of Aspen Mountain and Independence Pass from the
public courthouse. While the community may not have as strong an interest in preserving
the views from the Concept 600 units as from the courthouse, it is just as important to
those owners that their similar view not be further obstructed, and such view blockage is
evidence of the lack of compatibility with the surrounding land uses. .
2. Required numbers of parking- spaces. For free-market residential use,
Section 26.28.150E.1. (see Exhibit G), as amended by Ordinance No, 38-96, requires two
off-street spaces per dwelling unit, except that for a studio or one bedroom, one space per
dwelling unit is required. This application is for a four-bedroom free-market unit, a three-
bedroom affordable unit, a one-bedroom affordable unit, and a studio affordable unit. The
Zoning Code normally specifies 6 parking spaces be provided for the residential uses.
Aside from the fact that it provides no new spaces and is displacing the existing employee
parking, this application fails to comply with that standard in that it only proposes to have
a total of 4 spaces (2 short of those required for the residential units). The Code allows
parking for affordable units to be determined by special review (assuming the other
standards mentioned above were met - which they weren't). The only way the parking
space requirement could be modified to fmd 4 spaces sufficient would be a determination
t"")
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City of Aspen
Planning & Zoning Commission
January 14, 1997
Page 5
by special review that there are no parking needs for 2 of the affordable housing units.
To determine that there will be no parking needs attendant to 2 of the 4 residential units
is to ignore the reality that failure to provide such parking will merely displace it onto the
already overcrowded adjacent streets. The applicant proposes to substitute an additional
cash-in-lieu payment for the missing on-site parking spaces for the residential units, in
effect acknowledging that those units will in fact have parking demands. However,
Section 26.28.150E.3. (see Exhibit m only allows payment in lieu for parking spaces for
uses ~ than residential.
This proposal displaces existing parking for employees of the commercial operation, fails to meet
the standards for off-street parking for residential uses, both as to number and as to access to the
alley, and has no parking for the commercial use. Therefore, the parking needs of the project have
not been met, which is a prerequisite to any special review approval under Section 26.64,04OB.1.
(see Exhibit E).
For the reasons indicated, the application does not meet the standards of the Code and, therefore,
is not eligible for a GMQS allotment nor for a special review variance of the parking and floor
area requirements.
Very truly yours,
HILL, EDWARDS, EDWARDS & ADKISON, L.L.C.
concept\lplan.Ol
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26.52.060
B. Modtiication of review procedures. In the event that an applicant believes that the previously listed
review procedures do not directly address the development being contemplated., or that there are other unusual
circumstances, the applIcant may, pursuant to O1apter 26.92, request an Interpretation by the planning director
as to the appropriate review procedures for the proposed development.
C. Genezai he3ring procedures. The following genel1li procedures shall apply to the conduct of all hearings
regarding the review of a developmem application by decision-making bodies.
1. Oath or affimation. Testimony and evidence shall be given under oath or by affimation to the
body conducting the hearing.
2. Rights of all persons. Any person or persons may appear at a public hearing and submit evidence
either individually or as a representative of another person or an organization Anyone representing another
person or an organization must present written evidence of their authority to speak on behalf of. the person
or the organization in regard to the matter under consideration. Each person who appears at a public hearing
shall be identi:fied and. if appearing on behalf of another person or an organization, state the name and mailing
address of the person or the organization.
3. Due order of proceedings. the decision-making body conducting the hearing may exclude testimony
or evidence that it finds to be irrelevant, imm..,.tial or llIlduIy repetitious. Any person may ask relevant questions
of other persons appearing as witnesses, but shall do so only through the discretion of the chaiman or mayor.
The order of proceedings shall be as follows:
a. The planning agency staff shall present a narrative and graphic description of the development
application.
b. The planning a"aency staff shall present a written-.and oral recommendation. This recommendation
shall address each factor required to be considered by this title and the Aspen Area Comprehensive Plan prior
to development approval and shall be made available to the applicant submitting the development application
at least two (2) worldng days prior to the hearing.
c. - The applicant shall present any infol7Dation that it deems appropriate, and shall demonstrate that
public notice has been given, if required.
d.. Public testimony shall be heard. :first in favor of the development application, then in opposition
to it.
e. The pl3lllling agency staff may respond to any statement made by the applicant or any public comment.
f. The applicant may respond to any testimony or evidence presented by the planning agency staff
or public.
4. Testimony. In the event any testimony or evidence is excluded as irrelevant, immaterial or unduly
repetitious, the person offering such testimony or evidence shall have an opportunity to make a proffer in
regard to such testimony or evidence for the record.. Such proffer may be made at the hearing or in writing
within fifteen (15) days after the clOSe of the hearing.
--..1:.... Continuance of hearing. The decision-making body conducting the hearing may, on its own motion
. or at the request of any person, continue the hearing to a fixed date, time and place. No notice shall be required
if a hearing is continued. An.applicant shall have the right to request and be granted one continuance; however,
all subsequent continuances shall be granted at the discretion of the decision-making body conducting the
hearing, only upon good cause shown. All adjourned public hearings shall commence only upon the givinfl
of all notices which would have been reouiI-ect. were it the initial call of the public hearing. .
~~~~:',r""~'''''''''''''''''~''''i,: -'-.'" """.'1"~;"~:l':::\"!~;'~~"'~":"';,~:,.,..:~"."-:,:+",,,,?~',,,,.,''''''''~'''I .' "< _. "'~~.~''''''"_''''';:'''. '" "':""'''':'~_:;:;~'~",'''.''lt
" EXHIBIT
;
575 ! A
!
:
26.52.060
^
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(
6. Other rules to govern. Other matters pertaining to the public hearing shall be governed by other
provisions of the Municipal Code of the City of Aspen, Colorado, applicable to the decision-making body
conducting the hearing and its adopted rules of procedure, so long as the same are not in conflict with this
chapter. The city's decision-making bodies may adopt rules of procedure to limit the number of development
applications which may be considered at a hearing.
7. Record.
a. Records of hearing. The body conducting the hearing shall record the proceedings by any appropriate
means which shall be transcribed at the request of any person.
b. Record. The transcript of oral Proceedings, including testimony and statements of personal opinions,
the minutes of the secretary, all applications, exllibits and papers submitted in any proceeding before the decision-
making body, the report and recommendalion of the planning agency staff, and the decision and report of
the decision-making body shall constitute the record.
c. Public records. All records of decision-making bodies shall be public records, open for inspection
at reasonable times and upon reasonable notice.
D. Actions by decision-making bodies. AJI decision-making bodies shall act in accord with the time
limits established in this title. Action shall be taken as promptly as possible in consideIlltion of the interests
of the citizens of the City of Aspen.
orE , Public notice.
I. General. Prior to a public hearing on a development application, notice shall be provided to the
public, pursuant to the tenns of this section. Table 6-101 establishes the steps in the development review process
at which time notice is to be given.
2. Content of notice. Every notice shall include the name and address of the applicant, the type of
deve'Tcipment application sought,. date, time and place of the hearing, the aalfress''3l:11fie-i!I -desCription of the
subject property if applicable, a summary of the development application under consideration, and identification
of the decision-making body conducting the hearing and such other infonnation as may be required to fully
. -., ~-) ~-. . --.",.--.--. ...--..--..-...-........... .......-..
-7-6 apprise the pUblic. of the nature of the aoolication. .
\ 3_...."MannerOfiiOtice:-Everynotice sruin be given in one ormore of the fOllowing manners, as specified
in Section 26.52.060(E)( 4).
a. Publication of notice. Publication of notice shall be provided by the planning agency at least fifteen
115) days prior to _~~ public..~~g through publication in an official paper or a paper of general circulation
in the City of Aspen in the legal notice section. The content of the notice shall be that described in Section
26.52.060(E)(2).
b. Posting of notice. Posting of notice shall be made by the applicant, who shall obtain a copy of the
fonn from the planning agency, which shall be posted at least ten (10) days prior to the public hearing, by
posting a sign in a conspicuous place on the property subject to the development application. The sign shall
be made of suitable, wateIproof materials, shall be not less than twenty-two (22) inches wide and twenty-six
(26) inches high, and shall be composed of letters not less than one inch in height The content of the notice
shall be that described in SectJOI1'26.52.060(E)(2).
c. Mailing of notice. Mailing of notice shall be made by the applicant, who shall obtain a copy of
the notice from the planning agency, which shall contain that infonnation described in Section 26.52.060(E)(2).
At least ten (10) days prior to the public hearing, notice shall be sent by first class, postage prepaid U.S. mail,
or at least five (5) days if sent by hand delivery, to all owners of property within three hundred (300) feet
of the property subject to the development application. and at least fifteen (15) days prior to the public hearing,
notice shall be sent by first class, postage pre-paid U.S. mail or hand delivery to any federal agency, state,
county, municipal government, school, service district or other governmental or quasi-governmental agency
"
576
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26.52.060
thar owns property within three hundred (300) feet of the property subject to the development application.
The names and addresses of property owners shall be those on the current tax records of Pitkin County as
they appeared no more than sixty (60) days prior to the date of the public hearing.
_4..._Required notices. Notice ofhe:uing to the public for a development application shall take the following
form. -'- -..- .
a. Development application for permitted uses, special review, ESA. GMQS exemptions, subdivision
exemptions (other than for a lot split) or minor development in H. A development application for a permitted
use, development subject to special review, GMQS exemption, development in an environmentally sensitive
area (ESA) or minor development in H, Historic Overlay District ~ires no notice to the public prior to
review.
b. Development application for conditional uses and variances. A development application for a conditional
use or a vatiance requires mailing of notice and posting of notice pursuant to Section 26.52.060(E)(3)(b) and
(c).
c. Development application for significant development in H; demolition in H; development in or
designation of specially planned area (SPA); planned unit development (PUD); amendments to official zone
district map unless for entire city; subdivision exemption for lot split; designation of Historic Overlay District
or historic landmarks; growth management quota system (GMQS). Significant development in a H, Historic
Overlay District or of a historic landmark, development, demolition of a histOric landmark or of a SOUcture
rates as a "4" or a "5" by the. HPC in its evaluation of the inven~ory of historic sites and structures, designation
of a specially planned area (SPA), planned unit development (PUD), amendments to the official zone district
map unless for the entire city, subdivision exemption for lot split, designation of Historic Overlay District
or historic landmarks, and growthmanagement.QUotasystemJG1-l:9S)..review ~ires publigUiOJl..,.2fnotice,
. posting,of notic~~,mallirtg"'of'ii6ffce ~t to Section 26.52.060(E)(3)(a), (b) and (c). .
. a. _ 'Ame'ffCli:i:remto the'ii:xt oflliiStitle. Amendment to the text of this title requires publication of notice
pursuant to Section 26.52.060(E)(3)(a) for Planning and Zoning Commission public hearing and ordinance
adoption proc:edures for City Council public hearing.
e. Development application for subdivisioq. s.ubdi,vjsion..revie.w,reQUires publication..of.notice and
mailing of notice pursuant to Section 2o.:52~060(E)(3)(;;,) and (c) and notice by registered mail toallSiiifuce
owiiers:-mmer:u owners and lessees of mineral owners of the property. subject to the development application.
f. Any development application which will cover five (5) acres or more of land. Any development
application which will cover five (5) acres or more of land requires publication of notice pursuant to Section
26.52.060(E)(3)(a) and mailing of notice to the Colorado Land Use Commission, the stare geologist, and the
Pitkin County Commissioners. lI1 addition, a development application for subdivision approval also requires
notice by registered mail to all surface owners, mineral owners and lessees of mineral owners of the property
subject to the development application.
5. Rezoning of entire city. Whenever the official zoning district map is in any way to be changed
or amended incidental to or as part of a general revision of this title, or whenever the text of this title is to
be amended, whether such revision be made by repeal of this title and enactment of a new land use regulation,
or otherwise, the requirement of an accurate SlU'Vey map or other sufficient legal description of, and the notice
to and listing of names and addresses of owners of real property in the area of the proposed change, shall
be waived. However, the proposed zoning map shall be available for public inspection in the planning agency
during all business hours for fifteen (I5) days prior to the public hearing on such amendments. (Ord. No.
13-1993 S 3; Ord. No. 56-1994, S 13: Code 1971, S 6-205)
577
(A"p... 5196)
l,.llI-aS.
J J ~ ~
. JpUBLrC NOTICE ' ,
RE: STAGE:3 ME'IRO RESIDENTIAL GMQS SCORING
NOTICE IS BERE:BY GIVEN that a public hearing will be held an Tuesday, Dec::mber 17, 1996
at a mc:::tiog to begin at 5:00 p.m. before the Growth MatJagement <Ammi."qon, Sister Cities
Meeting Room, City Hall, 130 S. Galena St., Aspen. to scare the 1996 non-metro residential.
GI.'v!QS applicatiaos. The following application was r=ived for the competition:
1. STAGE 3: George. Carisch is reqcesting one allotment to peImit the consttUCtion of one new
free maket unit above the Stage 3 Theater.; in ,~c:n. Associated approvals ~ requested for
GL'vfQS Ex<=!'tion for three affordable b.oUsing units and Special Rmew to inc:=se the
allowable F .'\.R, to establish the required parldng, and to reduce the required ttash service area.
The property is located at 625 East Main Sttcct, and is d=ribed as Lots E, F, and G and the
east 10' ofLat D, Black 98, City and Townsite of Aspen.
For :filrtber infCl1!Ila.lion, com:act S"""'Tm'" Wolff at the Aspe%IIPitkin Community Development
Depa.t..u.-ent, 130 S. Gal= St, Aspen. CO (970) 920-5093.
slSan. Garton. Chair
Aspen p'snning and Zoning ComDlission
Published in the Aspen T= on November 16, 1996
City of Aspen Account
. . ~
UDLIC NOTl 1-
RE: STAGE 3 PENTHOUSES SU inlVISION . .
NOTICE IS lIERE~ Ihllt J luhlic; hcnrill~ will he held 011 Tu"sduyJxc."nbcr 17 19')(,
.t J mceting to begin' 5:)0 .n. IJC((,f the ^:;penl'lal1lling ilm.! Zoning Commission, Sister Citics
Meeting Room, City Hall, I JO S. <JaJcl I St. Aspcn. to '1'l1siuer all :lpplic:J.tiol1 submittl.-u by
George C:II'isch, Aspen. CO, ri:qucstin ' subdivision npprhvallo construct one free market nno J
alTordable dwelling units above the cxi ling thc:llres', '111~ pruj1ert)' is located at 625 ~t M,lin
Street, and is described <IS Lots E, F, an G ;l11d the Cll~t ':(j' of Lot D, Block 98, Cily and Townsite
of Aspen. For further in[ol1natioll, com set SU7.1nne Well' at the Aspen/Pitkin Community
Development Dcpartmclll, t JO S. (jak 1,1 ::iI., ^spen, CO (970) 920-509J.
!/Sara Garton, (:;balr
A3pcn Planning 11110 Zoning Contmi slulJ
Published in the Aspen limes 011 Nov 1l1bcr JO, 1996
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" EXHIBIT
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G;M,QS
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26.100.060
the number of points awarded or remanding the development application to the Growth Management COmmission
for rescoring.
A quorum of the jOint City COuncillBoard of County Commissioners shall be comprised of at least three
members of the Aspen City Council and at least three members of the Pitkin County Board of County
Commissioners. No meeting of the joint City CounciIIBoard of County Commissioners shall be called to order
without a quorum and no meeting at which less than a quorum is present shall act on an appeal other than
to continue it to a date certain. All actions shall require the COncuning vote of a simple majority of the members
then present and voting. A tie vote by the jOint City Council/Board of County Commissioners shall be deemed
a decision to uphold the Growth Management Commission's scoring.
The decision of the joint City CounciIJBoard of County C'-"mm;..;olleIS shall consli1ute the:final adminiSlr.llive
order on the matter.
F. . Allocation. Following the conclusion of all protest hearings, the City Council shall, by resolution.
allocate development allotments among eligible applicants who meet the minimum threshold established in
Section 26.100.060(C)(5) in the order of priority established by their rank. Those applicants having received
allotments may proceed to apply for any futther development approvals required by this chapter or any Other
regulations of the city. Those development applications that have not met the minimum threshold established
in Section 26.100.060(C)(5) shall be denied.
G. Assignability and transferability of allotments. Development allotments shall not be assignable or
transferable independent of the conveyance of the real property on which the development allotment has been
approved. (On!. No. 54-1994: Code ~ 8-106)
v
.,,/
26.100.080 Growth management scoring criteria: residential and tourist accommodations.
A. Applicability. The scoring criteria of this section shall be used in evaluating all non-exempt residential
and tourist accommodations development applications within the Aspen metro area. The criteria are based
on the visions and goals of Aspen area residents, as expressed in the Aspen Area Community Plan. The criteria
are universal in nature; they will be used in evaluating both residential and lodge development. It is recognized
that different types of projects will be able to address the criteria in different ways and that not all of the specific
objectives and sample implementation methods are applicable to all types of development.
B. Scoring. Points shall be awarded forperfozmance relative to each of the four scoring criteria. Possible
SCOres for each criterion shall range from zero, the lowest possible Score, to five, the highest possible Score.
It is recognized that small projects could be at a competitive disadvantage when scored against large-scale
projects. It is intended, therefore, that projects be evaluated according to reasonable expectations regarding
what could be expected given their size and scale. A score of zero shall be awarded to projects that, although
they had the opportunity to comply with scoring criteria and had the ability to advance stated community _
goals, will actually contribute nothing to implementation of the articulated vision and may, in fact, move the
community further away from its stated goals. A score of three indicates that a project will move the community
" EXHIBIT
677 I C.
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26.32.010
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Chapter 26.32
OFF-STREET PARKING
Sections:
26.32.010
26.32.020
26.32.030
General provisions.
Characteristics of off-street parking spaces and access to street or alley.
Required number of off-street parking spaces.
26.32.010 General provisions.
A. General requirements. All development. except affordable housing, shall be provided with off-street
parking as provided in this chapter.
B. Requirements for affordable housing.. The off-street parking requirements for all affordable housing
shall be established by special review pursuant to Chapter 26.64.
C. Requirements for expansion of existing development No development shall reduce the number
of existing off-street parking spaces below the minimum number of existing spaces required herein for that
development, unless expressly exempted by this chapter. If~g deYelopment is expanded. additional 0.ff~5'tl:e;:t
arkina ace shall be, . Yil1~for.l:bat.ino:ement.ofthe .ex ansion,as..ifit.is s antte deve10 ment
". ",. .." "~'--'''''-''''''''';::'''=-'''-"'
D. Off-street parking calculation. All requirements for off-street parking for residentiardwellings and
lodges shall be calculated based on the number of bedrooms of the structure or use. All requirements for off-street
parking for all other uses shall be calculated based on the net leasable area of the struCllIre or use.
E. Required number of spaces when fractional spaces computed. When any calculation of off-street
parking results in a required fractional space, said fractional space may be paid cash-in-lieu or an entire space
may be p,rovided on the site. (Ord. No. 56-1994, ~ 9: COde 1971, ~ 5-301)
0,/
~.6.~-,O:2.0~ Characteristics of off-street parking spaces and access to street or alley.
...6:.- General. Each off-street parking space shall consist of an open area measuring eight and one-half
(8 1/2) feet wide by eighteen (18) feet long and seven (7) feet high with a maximum slope of twelve (12)
percent in anyone direction. Each.parking .sPllg}, except those provided for detached residential dwellings
and duplex dwellings, shalf hive an unobsoucted. acC!lSuo..a.street.,Ol',all~. Off-street parking provided for
multi-family dwellings whiCh do not share a"common parking area may be exempted from the unobsOUcted
access requirement subject to Special Review pursuant to Chapter 26.64. No driveway shall exceed a maximum
slope of twelve (12) percent within twenty (20) feet of a property line bordering a public or private right-of-way.
Off-street parking must be paved with all weather surfacing or be covered with gravel. For single family and
duplex development, a grass-ring type surface may be used. All parking shall be maintained in a usable condition
at all times.
B. Location of off-street parking. Off-street parking required for development in the Ser-
vice/Commercial/Industrial (S/CIf), Neighborhood Commercial (NC) and Office (0) Zone Districts shall not
be located in any adjacent residential zone district Off-street parking for any residential dwelling, hospital,
school or other use located in a residential zone district shall be located on the same site as the principal use.
Off-street parking for a boarding or rooming house, lodge, hotel or dormitory shall be located on the same ,
lot, or an adjacent lot under the same ownership as the lot occupied by the principal use.
..
EXHIBIT
.D
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531
(..."",5/96)
. 26.64.010
Sections:
26.64.010
26.64.020
26.64.030
26.64.040
26.64.050
26.64.060
26.64.070
26.64.080
26.64.090
~
~
Chapter 26.64
SPECIAL REVIEW
e
Purpose.
Authority.
Applicability.
Review standards for SPecial review.
Procedure for special review approval.
Application.
Conditions.
Modification of requirements.
Amendment of development order.
26.64.010 Purpose.
The purpose of special review is to ensure site specific review of dimensional requirements (Chapter
26.28), off-street parlOng requirements (Chapters 26.28 and 26.32), and all reductions in the dimensions of
utility/trash service areas (Chapter 26.28), and any development not at grade within fii'teer1 (15) feet from
the top of slope in the Hallam Lake BluffESA (Chapter 26.68), in otderto maintain the integrity of the city's
zone disniClS and the compatibility of the Proposed development with SUl!Ounding land uses. (Ord. No. 71-1990,
S 3: Code 1971, ~ 7-401)
26.64.020 Authority.
The commi<$ion, in accordance with the Procedures, standards and limitations of this cl1apter, shaI! approve,
approve with conditions, or disapprove a development application for special review, after recommendation
by the planning director. (Code 1971, ~ 7-402)
.A
...
26.64.030 Applicability.
Special review shaI! apply to ail development in the City of Aspen designated fur special review in Olapters
26.28 and 26.32. (Code 1971, ~ 7-403)
26.64.lMQ.,. Review standards for special review.
No development subject to .~:greview shall be permitted unle~ the commission makes a determination
that the propOsed development complies with an 'standardS-and re5{Uirements,set fOrtl:1.below.
A. Dimensional requirementS~Wh.fu~ver'ttie'ili;;'enSlon31 ~irements of a proposed development
..... . . . --, . 'h _..
are subject to special re~ew, the development application shall only be approved it the following conditions
are met:-" .' __ ""<>._.
.J... The mllS~,)~!<jght,..densit;(, cOn:!igur:agOl!, .amOunt9fopen space, landscaping and setbacks of the
Proposed development jl!'e..cl~gned in a manner_~hich is com1?atible with or enhances the character of surrounding
land uses and is consistent with the purposes of the underlying zone district: . . "_'0 __
~._,_...w
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EXHIBIT
E
590
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26.64.040
~ The applicant demoIlSO'3tes that the proposedcieve1llpI!leIlt ~ not haveadve:se iInjl3CtSon~~g
~s:.s, or will mitigate those impacts, includiIlg Out poili!!!.ited to Ii!\L~ffeqsQf sha4ing, e;c;esstraftic,.~~~ability
of . g in the neighbomood or bIocking,gf a......@sjgna~!tY.i~w plane. _
-_.. 3. For the reduction of required open spaa: in the Commercial Core (CC) zone disoict only, the applic:mc
demonstraIes that the provision of less than the required amOlmt of open space on-site will be more consistent
. with the chatacter of sw:rounding land uses than would be the provision of open space according to the standard.
As general guidelines, the applicant shall take into account the following. It may be appropriate to have
open space on the site when the building is located on a street comer, or the open space can be linked to
neighboring Pedestrian amenities, or the open space provides relief intended to maintain the prominence of
an adjacent historic landma:rk, or the open spaa: is intended for a particular functional purpose, such as dining
orthe protection of an existing tree. Itmay be inappropriate to have open spaa: on the site when other buildings
along the street front are built to the property line, especially along public malls, or when the open space is
conngured in such a manner as to serve no public purpose.
When the commission determines open spaa: is inappropriate on the site, it may reduce or waive the
requirement if the applicant shall make a payment-in-lieu according to the following formuia:
Appraised value of the unimproved land, multiplied by the percentage of the site required to be open
space which is to be developed, equals value of payment
The appraised value of the property shall be determined by the submission of a current appraisal perrormed
by a qualified professional real estate appraiser_
The payment-in-lieu of open space sha1I be due and payable at the time of issuance of a building pennit
All funds collected shall be transferred by the building lnspectorto the finance director, for deposit in a separate
interest bearing account. Monies in the account sha1I be used solely for the purchase or development of land
for open space, pedestrian or recreational purposes within or adjacent to the Commercial Core (CC) zone district
Fees collected pllISUant to this section may be returned to the then present owner of property for which
a fee was paid, including any interest earned, if the fees have not been spent within seven (7) years from the
date fees were paid, unless the council shall have eannllIted the funds for expenditure on a specific project,
in which case the council may extend the time periOd by up to three (3) more years. To obtain a refund, the
present owner must submit a petition to the finance director within one (I) year fOllowing the end of the seventh
(7th) year from the date payment was received.
Forthe pllIpOse of this section, payments collected shall be deemed spent on the basis of the first payment
in shall be the first payment out Any payment made for a project for which a building permit is cancelled,
due to noncommencement of construction, may be refunded if a petition for refund is submitted to the finance
director within three (3) months of the date of the cancellation of the building permit All petitions shall be
accompanied by a notarized. sworn statement that the petitioner is the current owner of the property and by
a copy of the dated receipt issued for payment of the fee.
When the HPC approves the on-site relocation of an Historic LandmllIt into required open space, such
that the amount of open space on-site is reduced below that required by this Code, the requirements of this
section shall be waived.
591
26.64.040
I"",
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,
4. For the ResidentialiMulti-Family (R;MF) zone district only, increases in external floor area shall '1
only be permitted on sites subject to the requirements of Clapter 26.48, Replacement Housing Program. To )
obtain the increase, the applicant shall demonstr.tte a minimum of two-thirds (213) of the additional floor area
allowed is used to increase the size of the affordable housing units beyond the minimum size standards of
the city's housing designee and the development complies with the standards of Section 26.64.040(A)(1) and
(2).
-L. Qft~t~ ~ Wheneverthe off-street P3rldru!: reQUirements of a Pro.~~:I.oQl!lent
are SUbject,tO.~li$mes.~dlonIllttgalion via a pa~entin lieu b~. ~all1lvi~,.the development JflPlicmon
shall only. be.3:0Provedjf the fOllOwing conditions are met
LIn all zone districts where the off-street parldng requirements are subject to establishment and/or
mitigmon by special review, the aJ?Plicant shall demonstrate that the Parldng needs of the residents, CUsto!llers,
guests andemP.!9.Y~ of the project.h.~Xe..ll!:!:11.!llc:.t, taking intO accQlIllt pOtential u~ 'oftheparcel, the projected
~=i~~:e~ij~~ d~~~~~-~~t/)~o;~ro;~~~~~~~~~:::;,
guests and employees.
In determining whether to accept the mitigmon or whether to require that the parldng be provided on-site,
the commission shall take into consideration the practical ability of the applicant to place parldng on~site,
whether the parldng needs of the development have been adequately met on-site and whether the city has
plans for a parldng facility which would better meet the needs of the development and the community than
would location of the parldng on-site.
2. In all zone districts, where the off-street parldng requirement may be provided via a payment in
lieu. the applicant shall make a one-time only payment to the city, in the amount of fifteen thousand dollars
($15,000.00) per space. Approval of the payment-in-lieu shall be at the option of the commission. l'a.
The payment-in-lieu of parldng shall be due and payable at the time of issuance of a building permit. ..
All funds collected shall be transferred by the building inspector to the finance director, for deposit in a separate
interest bearing account Monies in the account shall be used solely for the construction of a parldng structure
or similar new parldng facility within or adjacent to the zone districts to which this subsection applies.
Fees collected pursuant to this section may be retumed to the then present owner of the propeny for
which a fee was paid. including any interest earned, if the fees have not been spent within seven (T) years
from the date fees were paid, unless the council shall have e:umarlced the funds for expenditure on a specific
project, in which case the cooncil may extend the lime period by up to three (3) more years. To obtain a refund,
the present owner must submit a petition to the finance director within one year following the end of the seventh
(7th) year from the date payment was received,
Forthe pUIlJOse of this section, payments COllected shall be deemed spent on the basis of the first payment
in shall be the first payment out Any payment made for a project for which a building permit is cancelled,
due to noncO=encement of construction, may be refunded if a petition for refund is submitted to the finance
director within three (3) months of the date of the c311cellation of the building permit All petitions shall be
accompanied by a notarized. sworn' statement that the petitioner is the current owner of the property and by
a copy of the dated receipt issued for paymen.t of the fee.
In order to insure that the payment-in-lieu rate is fair and represents current cost levels, it shall be reviewed
within two (2) years of its effective date, and every two (2) years thereafter. Any necessary amendments to
this section shall be initiated by the commission or the city cooncil to address the results of the review.
592
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The following section within each of the following zone districts shall be repealed and replaced
'- with the followiDg italicized text: Roo: 26.28.050(E)(!), R-15: 26.28.060(E)(1), R-!5A;
26.28.010(E)(1), R-30: 26.28.080(E)(1), RIMF: 2628.090(E)(1), RlMFA; 26.28.100(E)(1),
MHP: 26.28.120(E)(1),RR: 26.28.130(E)(1), CC: 26.28.14C(E)(1), Co!: 26.28.150(E)(1), SCI:
26.28.160(E)(!), NC: 26.28.l70(E)(1), 0: 26.18.l80(E)(!), LiTR: 26.28.l90(E)(1)
C: 26.28.220(E)(1).
I. For sing!e-fcunily and duple:: residential use and multi-family use:_two (~l.
SZ1acesldwellin~t. Fewer spaces may be provided by special review pursuant to Chapter
.4Io4]or'1tiSiOnc Ondmarks only, and fewer spaces may be p1'ovided purszu:mt to Chapter 26. 60. .
for A.ccessory Dwelling Units only. One ({2 SlJaceldwellin,'Z"unit i~7Ji.u.i!::.,!..ifth:..unitiseithera
studio or one-bedroom unit. ,.
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SectiOD 3: Section 26.28.080 of Chapter 26 of the Aspen ~llllici.pa1 Code, Conditional Uses in the
R-30 Zone District is amended to add the following lango;age:
. 26.28.080(C) Conditional rIses.
7. A.ccessory Dwelling Units meeting the provisions ojSection 26.040.1390.
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Seerion 4: Section 26.32.020 of the Aspen Municipal Code, Characteristics of Off-Street
Parking Spaces and Access to a Street or Alley, is amended in the following fushion, with text in
italics being- added to the e:ci.sring teX!:
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26.32.020 Characteristics of off-street parking spaces and access to street or alley.
/;.. General. Each off-street parking space shall consist of an open area measuring ,
eight and one-half (8 112) t~t wide by eighteen (18) feet long and seven (7) feetbigh with a
m.y;-mum slope of twelve (12) percent in any one direction~,f~9.~ par.king space, except those -.
provided for detaChed residentiaL dwellings and duplex dwellings, shall have an unobstrUcted
access to a street or alley. Off-meet parking-prOvided ~o!multi-Wy dwellings willch do .not '.
'share a co=on parking area may be e1Cempted from .the unobstructed..access requirement
subject to Special Review pursuant to Chapter 26.64 Off Street parking provided for multi-
family dwellings which do not share a common par!cing area may be exemptedfrom .he
unohstnlcted access requirement subjecr to speciai review pursuam 10 Section 26.64. No .
driveway shall exceed a maximum slope of twelve (12) percent within twenty (20) feet ofa
property line bordering a public or private right-of-way. Off-Street parking must be paved with
all wearher surfacing or be covered with gravel. For single family and duplex development. a
grass-ring type surface may be usecL All parlcing shall be maintained in a usable, condition at all .
times.
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. 26.28.150
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Lot Size (Square Feet)
Allowable Square Feet
9,000-15.000
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4.080 square feet of floor area, plus 6 square feet of floor area
foreach additiOnal 100 square feet in lot area, up to a maximllII!
of 4,440 square feet of floor area
15,000-50.000
4,440 square feet of floor area, plus 5 square feet of floor area
for each additional 100 square feet in lot area, up to a maximllII!
of 6.190 square feet of floor area
50,000+
6,190 square feet of floor area, plus 3 square feet of floor area
for each additional 100 square feet in lot area
All uses other than detached residential and duplex dwellings: 1:1; however, the 1:1 external floor area
ratio may be increased to 1.5:1 by special review pursuant to Chapter 26.64.
11. Internal floor area ratio: 1:1, increasable to 1.5:1; however. if the external floor area ratio is increased
by special review pursuant to Chapter 26.64. then sixty (60) percent of the additional floor area must be approved
for residential use restricted to affordable hOusing.
..Jh Off-<tTP,.t Darldn~, reo!lJW~ The following off-street parking spaces shall be provided for each
use in the Commercial (C-l) zone district, subject to the proviSions of O1apter 26.32. )
1. All residential u.~~..;._L5R~om ( A lY\E:I\I \) S 1::> _ ",e. &" E X G
2. Lodge uses: NIA
3. A II nthA"n.,..s: 1.5 suacesll..OOO sQUare ft:et of net Jp.<.pl\< .TP. wl1jrn m~... nrnvi<jPrl vi. a pa~ent
,i9 lie)! pursuant to Chapter 26.64. (OIl!. No. 47-1988, SS 2,5,15; ani No. 7-1989. S 1; Ord. No. 17-1989.
S 2; ani No. 56-1994, S 7; Oni No. 22-1995, S 6: Code 1971. S 5-210)
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26.28.160 ServicelCommerciaI/Industrial (SlCII).
A. Pmpose. The purpose of the Service/Commercial/Industrial (SIC/!) zone district is to allow for the
use of land for the preservation or development of limited commercial and industrial uses which do not require
or gene:rnre high CUStomertraffic volumes. and to pennit customary accessory uses, including residential dwelling
Wlits.
B. Pennitted uses. The folloWing uses are pennitted as of right in the Service/Commercial/Industrial
(SIC/!) zone district.
1. Limited commercial and industrial uses including the foHoWing and simIlar uses: Vehicle sales;
appliance and equipment rental, storage and repair; automobile repair; automobile washing facilities; electrigaI
and plllII!bing service shops; Commercial bakery; computer product sales and services; limited industrial uses
including: Builder's supply. industrip dry cleaning plant and laundry, fabrication and repair of building materials
and components.lllII!beryards, manufacture and repair of electronics or sporting goods, printing and publishing
plants. telecommWlications supply, typesetting, warehousing and storage, shop-craftindustry and similar uses,
artists' studios with optional accessory dwellings. All of these uses are pennitted provided they do not creare
unusual traffic hazan:!. noise, dust, fumes. odors, smoke. vapor, vibration, glare or industrial waste disposal
problems, and provided that no pennitted uses principally sell daily or frequently bought items to the general
public;
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512
'" EXHIBIT
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