HomeMy WebLinkAboutLand Use Case.233 W Main St.0068.2012.ASLU0068.2012.ASLU 233 W. MAIN ST 2735 12 454 001 APPEAL FOR INSUBSTANTIAL PUD AMEND didA...wd.L.-=12:El: n
.. THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0068.2012.ASLU PARCEL ID NUMBERS 2735 12 4 54 001 PROJECTS ADDRESS 233 W. Main St PLANNER Jennifer Phelan 61 P(kil- L. ;6 + piou 61.16 0~ L N 4,4.44 fri (Q'.0 CASE DESCRIPTION 8040 -GREENLINE-E@*EMP~FleN REPRESENTATIVE Holland and Hart DATE OF FINAL ACTION 10/29/12 CLOSED BY ANGELA SCOREY ON: 12.7.12
21 35-/2 -4- 57t~) ~ 006$·20 12.ASE-(4 7 -fm 1.- .- Ble Edit Record Navig* Fgm Report Format Iab !1® i 1@@)*)11-1 h~ii.Wj :dz#'~ il.·· 0.@Abrrpt : 49:01#~ i23 2 3 -j - *t'RE 3 ..6 3 .1 Ro#ngftate |Fee- |Feeimen,11 |~Miorn Attachments~Routing~istory Yaluabon ArchIEng ICustomF#Ids 5ubtern[25 Parcek 1 ~ Pernt type asll ~Asperi Land Use ~ Permt# ~0069.2012.ASLU I Ji Addres |233 W MANST 1 Apvwd Qty |ASPEN Rate E-3 81 81611 Permt Information Masterpemt| ~ Routngqueue GF--3 App~44*12012 ] i •jed I Stabm ~per*g ~ Approved . ~ ' Des®tbn APPLICATION FOR AN APPEAL OF TI·E NUSTANTIAL PUD AMENDMENT TO aTY I Issued ~ ' ~ COUNCIL ORDNANCE NO.32, SEES OF 2004, THE INNSBRUCK PUD absed,Minal 1 J 1 5ubmtted |HOLLAND & HART 925 9367 Clock ER De U Epres ) 0£2013 1 Samitted wa ~ j9 . Owner I Last name |INNSBRUCK SUITES NVEST i First name | ·422 E HYMAN AVE IASPEN commi : Phone |(614)236-3000 Address Appkmt 3 Ownel k applicant? J Contaclor i: appcant? La¢ name ~HOLLAND & HART Frd nare |ARTHE C.DALY | 600 EMAN ST i 104 I : Phone ~(970) 9 25-3467 Cijst # ~26341 Address ASPEN ¢081611 I Lender la¢ name 1 First name ~ | PI-K) Address D*es the per~ iendep addess AIDE.·O#. [serm] angea: ~ 1 oil ac * 9090 3 17 9 Aw~ovul- 4 1,2- Go· 00 -,$41, fiRF 916< C ID L ZI ~ C .2/ A 0 7 04\ 14\(P 8*yON *Ome| ' wqlo 1 edneig q•l] '
0 . HOLLAND&HART ~ Associate Alison E. Eastley I HE LA Vi, Ou l *Ebl Phone 970-429-6880 Fax 970-315-3524 AEEastley@hollandhart.com October 11,2012 VIA HAND DELIVERY City of Aspen Community Development Dept. Chris Bendon, Direcotr Jennifer Phelan, Deputy Planning Director RECEIVED 130 South Galena St. ACT 1 1 2012 Aspen. CO 81611 CITY ut ASPEN James R. True, Esq., City Attorney COMMUNITY DEVELOPMENT Aspen City Hall 130 South Galena St. Aspen, CO 81611 Re: Requested Appeals Fees and Information Relevant to the Appeal of the Insubstantial PUD Amendment and the Appeal of the City Interpretation Dear Mr. Bendon, Ms. Phelan, and Mr. True: Enclosed please find the requested appeals fees for the Appeal of the Insubstantial PUD Amendment and the Appeal of the City Interpretation, sent via email on October 8, 2012. In addition, please find the requested completed and signed "Agreement to Pay Application Fees" and "Attachment 2 - Land Use Application." Please know that we received a copy of Mr. Jody Edwards' amended letter of earlier today regarding our Appeal of the City Interpretation and the notice which was published in August in the Aspen Times Weekly relating to the City's interpretation action. We represent numerous fractional interest owners in the Innsbruck condominium who hold constitutionally and statutorily protected property rights. Our clients were entitled to actual, advance, and effective notice of the various City proceedings which substantially affect those property rights. The published notice referred to by Mr. Edwards was wholly inadequate to cure the absence of any actual, advance, effective notice to our clients. To the degree necessary. please consider this information as an amendment to our Appeal of the City Interpretation. Sincerely, A € 4,4/2 Alison E. Eastley for Holland & Hart UP f Enclosures CC: Arthur C. Daily, Esq.. Karen Dennison, Esq. Holland & Hart LLP Attorneys at Law Phone (970)925-3476 Fax (970)925-9367 www.hollandhart.com 600 East Main Street, Suite 104 Aspen, CO 81611-1991 Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C.
.. Alison E. Eastley HOLLAND&HARL ·-13 Phone 970925-3476 Fax 970-925-9367 AEEastley@hollandhart.com 81701.0001 December 3.2012 VIA E-MAIL James R. True. Esq.. City Attorney Aspen City Hall 130 South Galena St. Aspen. CO 81611 i i m.true<fici.aspen.co. US Re: Withdrawal of Appeal of the Insubstantial PUD Amendment and Request for Return of Appeals Fees. Dear Mr. True: On Monday October 8th. this firm submitted an appeal on behalf of a number of fractional owners in the Innsbruck regarding the City of Aspen Community Development Department's approval of an Insubstantial PUD Amendment and the City of Aspen's Amendment to the Planned Unit Development (PUD) & Subdivision Improvements Agreement for the Innsbruck Inn Timeshare Imdge Project (collectively. "Appeal of the Insubstantial PUD Amendment"). Having resolved the above matter with the Innsbruck Condominium Association. Inc.. Innsbruck Suites Investments, LLC. and Bluegreen Vacations Unlimited, Inc., we are writing to withdraw the Appeal of the Insubstantial PLID Amendment and seek return ofthe $1.260.00 appeal fee tendered therewith. In addition. we are seeking return of the $ 1.260.00 appeal fee tendered with the appeal of the City of Aspen Community Development's interpretation of the City of Aspen Land Use Code timeshare requirements. given that such appeal was denied on October 18.2012. Please contact us with any questions. Respectfully Submitted, A 4 / 4 k ,.7411 4521/91 1 7 1/ Afison E. Eastley /// for Holland & Hart u p // \Vf CC: Karen Dennison. Esq., Arthur C. Daily. Esq.. J. Bart. Johnson. Esq.. and Christopher Payne, Esq. 5873725 1.DOCX Holland & Hart LLF Attorneys at Law Phone (970>9253476 Fax (970)975-9367 www.holiandhart.com 600 East Main Street, Suite 104 Aspen, CO 81611·1991 Atoer, Blliligs Boise Bculde, Catsofi Or¥ Cheyettne CO<*600 Surlni5 Ck,iver De.·~.ter I e€h Center Ja<40,3 +10Ii? t,a:5 *ga Reflf) 58!t Lak:e City Santa Fe Wcish1ngtan, D C.
.. Arthur C. Daily HOLLAND&HART, ~ Phone 970-925-3476 Fax 970-925-9367 f HE ..AW OU't 04 E St 4/// ADaily@hollandhart.com 81701.0001 October 8,2012 VIA E-MAIL AND HAND DELIVERY City of Aspen Community Development Dept. Chris Bendon, Director RECE,VED 130 South Galena St. oCT 1 1 2012 Aspen, CO 81611 chris.bendon@ci.aspen.co.us CITY Ur hoPEN COMMUNITY DEVEI OPMENT James R. True, Esq., City Attorney Aspen City Hall 130 South Galena St. Aspen, CO 81611 lim.true@ci.aspen.co.us Re: Appeal of the Insubstantial PUD Amendment to City Council Ordinance No. 32, Series of 2004, the Innsbruck PUD. Dear Mr. Bendon: This firm represents a number of fractional owners in the Innsbruck, a condominium located at 233 West Main Street ("Appellants"). We are writing to appeal the approval by the City of Aspen Community Development Department for an Insubstantial PUD Amendment, granted on September 18, 2012, and the Amendment to the Planned Unit Development (PUD) & Subdivision Improvements Agreement for the Innsbruck Inn Timeshare Lodge Project, made on September 18, 2012 by the City of Aspen (collectively, the "Insubstantial PUD Amendment"). Appellants request both a reversal of the Insubstantial PUD Amendment and an immediate stay of the effect of that action until such time as this appeal can be heard and decided by the City Council or an Administrative Hearing Officer, as appropriate. The original Innsbruck PUD, dated March 30, 2005, allowed ownership of 1/12 fractional interests in 17 condominium units. However, between 2005 and 2012, various fractional interests in the condominium units remained unsold. On August 8, 2012, Bluegreen Vacations Unlimited, Inc. ("Bluegreen"), a prospective purchaser of various Innsbruck condominium units, submitted a formal request for approval of an Insubstantial PUD Amendment, seeking to divide ownership interests into smaller fractions of time "in order to enable lower buy-in prices [and-] to encourage greater occupancy and turnover rates As the recorded Insubstantial PUD Amendment recites, the changes between the amended and original PUD are as follows: The room count [is] seventeen (17) timeshare lodge units (with twelve (12) estates per wail with not less than twelve (12) time-span estates per timeshare lodge unit) .... Owner has the right to sell at least twelve (12) time-span estates per timeshare lodge unit. Holland & Hartup Attorneys at Law Phone (970)925-3476 Fax (970)925-9367 www. hollandhartcom 600 East Main Street, Suite 104 Aspen, CO 81611-1991 Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C.
.. HOLLAND&HART.- ~ Page 2 Staff in the Community Development Department evaluated Bluegreen's formal request, concluding that the criteria for granting an Insubstantial PUD Amendment were met because the Innsbruck will continue to function as a timeshare lodge, no physical changes are proposed, and an increase in timeshare fractions is consistent with the original approvals. This is an insufficient justification for a finding that the proposed amendment is insubstantial. The grounds for this appeal are as follows: 1. According to the City of Aspen Land Use Code Section 26.445.100, the Community Development Director may authorize an insubstantial amendment to an approved development order for a final development plan, unless the proposed amendment fits into one of nine circumstances. If the proposed amendment fits into these circumstances, the proposed amendment is effectively considered substantial, and approval of an insubstantial PUD amendment is inappropriate. Bluegreen's proposed amendment is substantial-not insubstantial-and approval of Bluegreen' s request for an Insubstantial PUD Amendment was erroneous. Appellants point to Sections 26.445.100 A. (1) and (9). Under Section 26.445.100 A. (1), a proposed PUD amendment is considered a substantial amendment if it changes the use or character of the PUD. Bluegreen' s argument that the proposed amendment does not change Innsbruck's use or character simply because the development is still a timeshare lodge with more owners evades the practical implication of the proposed amendment. Merriam-Webster defines "use" as a particular service of use; "character" is defined as a feature used to separate distinguishable things into categories. Bluegreen' s proposed amendment creates substantially more owners, lower buy-in prices, shorter turnover rates, and increased occupancy, all of which undeniably change the use and character of Innsbruck for existing and prospective owners. Furthermore, the proposed amendment correlates with more move-ins and move-outs, greater disruption and wear and tear, different clientele, and a lower resale value of the whole proj ect. Ultimately, since all 1/12 fractional ownership interests have been purchased in certain condominium units, and in other condominium units some or all ownership interests remain unsold, the proposed amendment creates three completely different sets of ownership structures in the condominium units: Units with purely 1 /12 fractional ownership interests; hybrid units with both 1/12 fractional ownership interests and considerably smaller interests; and units with purely smaller interests. Such a change fosters three different sets of owner-expectations and values and simply cannot be classified as insubstantial. Under Section 26.445.100 A. (91 a proposed PUD amendment is considered a substantial amendment if it is inconsistent with a condition or representation of the project' s original approval or if it requires granting a variation from the project's approved use. As a condition of the original Innsbruck PUD, only 12 ownership interests were allowed to be sold in each condominium unit. See Section 4.q. ("The following development requirements will be satisfied by the Owner pursuant to the Ordinance.... Owner has the right to sell twelve (12) timeshare estates per unit.3. Allowing the sale of considerably Cal
.. HOLLAND &HAR ~„~ Page 3 more than 12 ownership interests in each condominium unit is undeniably inconsistent with the original Innsbruck PUD. 2. As additional grounds for this appeal, Appellants point to state and local law regarding board and owner authorization. City of Aspen Land Use Code Section 26.590.070 I. states, "If the development that is proposed to be timeshared is a condominium, the applicant shall submit written proof that... one hundred percent (100%) ofthe owners of the condominium units have approved the timeshare development." While the City of Aspen Land Use Code requires 100% approval from the owners of the condominium units, Colorado statutory law requires written approval by each and every board member, where no board meeting is held. See C.R.S. §7-128-202 (1) ("Unless otherwise provided in the bylaws, any action required or permitted...tobe taken at a board of directors' meeting may be taken without a meeting (f each and every member of the board in writing either: (a) Votes for such action; or (b) (I) Votes against such action or abstains from voting: and (II) Waives the right to demand that action not be taken without a meeting."). William Guth, President of the Innsbruck Condominium Association, Inc. (the "Association"), submitted a letter to the Community Development Department on August 6, 2012, indicating that the Association, "authorize[d] Bluegreen ... and its representatives...to file and process...an application for amendment to the Innsbruck PUD ... to permit timeshare interests at the Innsbruck of up to and less than 1/12 fractions." However, Mr. Guth failed to notify fellow Association board members or Innsbruck owners about the proposed PUD amendment. Accordingly, Bluegreen did not obtain valid approval from the Association, and the Insubstantial PUD Amendment should be reversed. 3. Until recording was made of the Development Order and the Insubstantial PUD Amendment in the O ffice of the Pitkin County Clerk & Recorder on September 24, 2012, Appellant had no notice or other knowledge of these proceedings, despite the effect on Appellants' constitutionally protected property interests. Appellants tender this notice of appeal within 14 days of receiving notice. Please contact the undersigned with any information regarding this appeal. Respectfull~Submitted, i /1 Arthur C. Daily of Holland & Hart LLP CC: Karen Dennison, Esq., Alison Eastley. Esq. 5788940_1
RECEIVED ~CT 1 1 2012 COMMUNITY DEVELOPMENT DEPARTMENT Agreement to Pay Application Fees - An agreement between the City of Aspen ("City") and Property Eve Feigelis, Ron Schreiber, Phone No. 970-925-3476 Owner ("ID: Howard Klein Email aeeastley@hollandhart.com Address of Innsbruck Inn Billing c /O Holland & Hart LLP Property: 223 West Main Address: 600 E. Main, Ste 104 (subject of Aspen, CO 81611 (send bills here) Aspen, CO 81611 application) I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $ n/a flat fee for . $ n/a flat fee for $ n/a flat fee for $ n/9 flat fee for For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. 1 understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to emit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non-payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ 1,960.00 deposit for 4 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $315 per hour. $ n/a deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $265 per hour. Cityof Aspen: Property Owner: ~~r ~ ~ ~~AA~ Chris Bendon I VVY W,YA Community Development Director Name:Alison E. Eastlev, for Holland & Hart LLP Title: Representative of Appellants City Use: Fees Due: $ Received: $ November. 2011 City of Aspen 1 130 S. Galena St. 1(970) 920-5090
I RECEIVED OCT 11 2012 ATTACHMENT 2-LAND USE APPLICATION CITY OF A. EN PROJECT: COMMUNITY DEV, wURNT Name: Innsbruck Inn Location: 223 West Main, Aspen, CO 81611 (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) 2735-174-54-101 APPLICANT: Name: Eve Feigelis. Ron Schreiber. Howard Klein. * Address: c/o Alison E. Eastley, Holland & Hart LLP, as representative, 600 E. Main St., #104 Phone #: Aspen, CO 81611. 970 925-3476 REPRESENTATIVE: Name: Arthur C. Daily & Alison E. Eastley, Address: Holland & Hart LLP, 600 E. Main St, Ste 104 Phone #: 970-925-3476 TYPE OF APPLICATION: (please check all that apply): GMQS Exemption 2 Conceptual PUD E Temporary Use GMQS Allotment E Final PUD (& PUD Amendment) U Text/Map Amendment Special Review 2 Subdivision 2 Conceptual SPA ESA - 8040 Greenline, Stream D Subdivision Exemption (includes E Final SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane U Commercial Design Review E Lot Split Q Small Lodge Conversionl Expansion U Residential Design Variance E Lot Line Adjustment f] Other: Appeal E Conditional Use EXISTING CONDmONS: (description of existing buildings, uses, previous approvals, etc.) n/a PROPOSAL: (description of proposed buildings, uses, modifications, etc.) n /9 Have you attached the following? FEES DUE:$1.260.00 2 Pre-Application Conference Summary U Attachment #1, Signed Fee Agreement E Response to Attachment #3, Dimensional Requirements Form E Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards O 3-D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D modeL Your pre-application conference summary will indicate if you must submit a 3-D model. * Owners of fractional interests in the Innsbruck Inn. This group represents numerous other fractional interest owners in the Innsbruck. nunn
Payee: City of Aspen Holland & Hart LLP Check # 50003179 Vendor: 223 Check Date: 10/11/2012 Invoice Number Invoice Date Invoice Amount Amount Paid Discount Taken Payment Amt 101112 10/11/2012 1,260.00 1,260.00 1,260.00 Totals 1,260.00 1,260.00 1,260.00 Appeal Fee for Appeal of Insubstantial PUD Amendment Ar 514(5