HomeMy WebLinkAboutlanduse case.boa.941-943 E Hyman.004-04
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,/ AGENDA
ASPEN BOARD OF ADJUSTMENT
Special Meeting
THURSDAY, June 24, 2004
4:00 PM
CITY COUNCIL MEETING ROOM
I. COMMENTS
A. Commissioners
B. Planning Staff
C. Public
II. MINUTES
III. DECLARATION OF CONFLICTS OF INTEREST
IV. PUBLIC HEARINGS
A. Case 04-04 - Appeal of an Administrative Decision Related to the
Erroneous Web site Information--941 E. Hyman
V. ADJOURN
PUBLIC NOTICE
RE: 943 E. HYMAN/303 CLEVLAND STREET APPEAL OF ADMINISTRATIVE
DECISION
NOTICE IS HEREBY GIVEN that a public hearing will be held on Thursday, June 24, 2004 at a
meeting to begin at 4:00 p.m. before the Aspen Board of Adjustment, City Council Chambers, 130
S. Galena St., Aspen, to consider an appeal by the owner of the above cited property of an
administrative decision as it relates to the calculation of floor area and a request for a floor area
exemption of 50% for an Accessory Dwelling Unit (ADD) due to information provided on the City
of Aspen website. For further information, contact Sarah Oates at the City of Aspen Community
Development Department, 130 S. Galena St., Aspen, CO, (970) 920-5441, saraho@ci.aspen.co.us.
sOOck Head
Chair, Aspen Board of Adjustment
Published in the Aspen Times on June 9, 2004
City of Aspen Account
NOTICE OF PUBLIC HEARING. /
CASE #04-04
Before the City of Aspen Board of Adjustment
TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE V ARlANCE
DESCRIBED BELOW:
Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the
BASEMENT MEETING ROOM, City Hall, Aspen, Colorado, (or at such other place as the meeting may
be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority
for variance from the provisions of the Zoning Ordinance, Chapter 26, Official Code of Aspen. All persons
affected by the proposed variance are invited to appear and state their views, protests or objections. If you
cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you
have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions
of surrounding property owners and others affected in deciding whether to grant or deny the request for
vanance.
Particulars of the hearing and requested variance are as follows:
Date and Time of Meetinl!:
Date: June 24, 2004
Time: 4:00 P.M.
Owner for Variance:
Representative for Variance:
Name:
303 Associates, LLC
Herb Klein
Klein, Cote & Edwards, PC
201 N. Mill Street, Suite 203
Aspen, CO 81611
Address:
1900 Telegraph Rd, Suite 200
Bloomfield Hills, MI 48302
Location or description of property:
941 & 943 E. Hyman (aka 303 S. Cleveland), Lots H & I, Block 35, East Aspen Addition
Variances Requested:
This is an appeal by the owner of the above cited property of an administrative decision as it relates to the
calculation of floor area and a request for a floor area exemption of 50% for an Accessory Dwelling Unit
(ADD) due to information provided on the City of Aspen website.
Will applicant be represented bv Counsel: YES: X NO:
The City of Aspen Board of Adjustment
130 S. Galena Street
Aspen, CO 81611
Rick Head, Chairman
,...,
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MEMORANDUM
TO:
Board of Adjustment
THRU:
Julie Ann Woods, Community Development~t~~~t~r
Chris Bendon, Senior Long Range Planner '()lINV\
Sarah Oates, Zoning Officer <70
FROM:
RE:
Appeal of an Administrative Decision Related to the Erroneous Website
Information-94l E. Hyman
DATE:
June 24, 2004
SUMMARY: The Community Development Department received a building permit
application from the owner of 941 E. Hyman Avenue (aka 303 S. Cleveland) in March
2003. Staff was unable to issue the permit because the applicant had not satisfied the
code requirements despite several revisions. The owner hired Charles Cunniffe
Architects in March 2004, several weeks prior to the expiration of the permit, to submit a
compliant plan. Again, zoning was unable to sign off on the permit because the
application did not comply with the code, most notably; a 50% floor area exemption had
been taken for the Accessory Dwelling Unit. Ordinance 46 of 2001 had removed that
exemption from the code in 2001. The architects based their floor area calculations on
the online code which contained incorrect information (see Exhibit A and B of Herb
Klein's letter dated April 20, 2004). In a letter dated May 17,2004, staff determined that
the owner was not entitled to a 50% floor area exemption for an ADU and that the
applicant was subject to Ordinance 46 of200l and any other amendments in effect at the
time of building permit submittal. The owner has appealed staffs determination.
APPLICANT/COMPLAINTANT: 303 Associates LLC represented by Herb Klein
BACKGROUND: Staff has been well aware of the inconsistencies in the online code
and has made the City Clerk's office aware of those issues on more than one occasion.
Based on discussions with the Clerk's office, they have had difficultly getting a response
from the codification company. The contract has been terminated with the company and
the Clerk's office now deals with code updates in-house.
Herb Klein's letter, dated April 20, 2004, outlines the background of the case. The
appellant asserts wrongdoing because staff did not "catch" the floor area mistake in one
of the pre-application conferences with the architect. These meetings typically consist of
staff being asked specific questions regarding the code and does not constitute a detailed
plan review or determination of compliance. In fact, although not distributed for building
permit pre-application conferences, the planning pre-application form states: "The
foregoing summary is advisory in nature only and is not binding on the City. The
summary is based on current zoning, which is subject to change in the future, and upon
factual representations that mayor may not be accurate. The summary does not create a
legal or vested right. "
"",-..
Further, Section 26.104.050 ofthe Aspen Municipal Code discusses void permits:
26.104.050 Void Permits.
All persons are presumed to know the terms and requirements of this Title
and the extent of the legal authority of the city and its employees, boards and
commissions to issue development approvals or permits. Any permit or approval
issued in error, or otherwise not in conformity with the requirements of this Title,
shall be void Similarly, any permit or approval issued in reliance upon, or as a
result 0,[, a materially false statement or representation made in the process of
obtaining the permit or development approval shall, likewise, be void Any person
having received a void or voidable permit or approval shall not be relieved from
having to comply with all applicable terms and conditions of this Title and the city
shall not be estoppedfromfully enforcing same.
Therefore, even if staff has issued the permit and not caught the error with regards to the
floor area exemption, the applicant would not be entitled to the exemption if at some later
time the error was discovered. In fact, it is this last sentence that obligates staff to enforce
the City's ordinances regardless of when an information error is realized.
Second, the appellant asserts that the architect was directed by staff to use the website for
code information. In a follow-up meeting, it was admitted by the architect that he had
never been specifically directed to the on-line City of Aspen Land Use Code. City staff
that works with architects, planners and others in the development community was well
aware of the problem and, if aware that on-line code was being used as a resource, would
have mentioned to the person there we inconsistencies in the code.
Third, Charles Cunniffe Architects is a firm that does many residential projects in the
area and should be knowledgeable of code language critical residential development that
changed two and one-half years ago. Staff works with the firm on a regular basis and, in
fact, has approved several projects in the last year that have complied with the current
land use regulations, including a project in which 50% of the wall area was retained and a
remodel was done to avoid mitigating with an Accessory Dwelling Unit or cash-in-lieu.
DISCUSSION: The complainant is requesting that the Board of Adjustment reverse or
modify the Community Development Director's conclusions and decision. Per Section
26.3l6.030(E) of the Land Use Code the Board must decide this case on the following
standard:
The decision-making body authorized to hear the appeal shall decide the appeal
based solely upon the record established by the body from which the appeal is
taken.
Further,
A decision or determination shall not be reversed or modified unless there is a
finding that there is a denial of due process, or the administrative body has
exceeded itsjurisdiction or abused its discretion.
2
,.......,
-..'
CONCLUSION: Staff finds there has been no denial of due process or abuse of
discretion. The Community Development Director is obligated to apply the City's
ordinances. Had the Community Development Director allowed a code that is now over
2 years old to apply to this permit, staff believes that would have constituted a denial of
due process or abuse of discretion. The 200 I code change itself met all of the procedural
requirements and was approved through the public hearing process. The code
amendment is part of the public record and is available in the Clerk's office.
Further, as outlined in Section 26.104.050, which is included on the previous page,
applicants are not entitled to erroneous approvals or information given by the City of
Aspen. Applicants are required to comply with the code in effect at the time of building
permit submittal and requiring that of this applicant does not constitute a denial of due
process or abuse of discretion.
RECOMMENDATION: Staff recommends that the Board of Adjustment uphold the
Community Development Director's administrative decision as it relates to application of
Ordinance 46 of 2001 and any other regulations in effect at the time of building permit
submittal in March 2003 as it is related to 941 E. Hyman Avenue (aka 303 S. Cleveland).
RECOMMENDED MOTION: "I move to uphold the Community Development
Director's administrative decision as it relates to application of Ordinance 46 of200l and
any other regulations in effect at the time of building permit submittal in March 2003 as it
related to 941 E. Hyman Avenue (aka 303 S. Cleveland)."
EXHIBITS:
Exhibit A-Letter of Appeal from Herb Klein, dated May 27, 2004
Exhibit B-Letter of Decision from City of Aspen, dated May 17,2004
Exhibit C-Initial Letter from Herb Klein, with exhibits, dated April 20, 2004
c:/ IhomcJsarahol codeappeal . doc
3
,
"
PUBLIC NOTICE
RE: 943 E. HYMAN/303 CLEVLAND STREET APPEAL OF ADMINISTRATIVE
DECISION
NOTICE IS HEREBY GIVEN that a public hearing will be held on Thursday, June 24, 2004 at a
meeting to begin at 4:00 p.m. before the Aspen Board of Adjustment, City Council Chambers, 130
S. Galena St., Aspen, to consider an appeal by the owner of the above cited property of an
administrative decision as it relates to the calculation of floor area and a request for a floor area
exemption of 50% for an Accessory Dwelling Unit (ADU) due to information provided on the City
of Aspen website. For further information, contact Sarah Oates at the City of Aspen Community
Development Department, 130 S. Galena St., Aspen, CO, (970) 920-5441, saraho@ci.aspen.co.us.
s/Rick Head
Chair, Aspen Board of Adjustment
Published in the Aspen Times on June 3, 2004
City of Aspen Account
May ,28, 2004 5:56PM
HERBERT S. KLEIN, P,C.
No, 3568 p, 1
KLEIN, COTE & EDWARDS, P.C.
201 N. Mill St., #203
Aspen, CO 81611
970-925-8700
970-92~-3977 flU:
Herbert S. K1el.
La... R. Cot<
Joseph E. J:d1lVlrds, ill
Medhu B. Kri,b.emarti
LETTER OF FACSIMILE TRANSMISSION
DATE:
FAX NO:
May 27,2004
920-5439
TO;
FROM:
RE:
Sarah Oates
Herb Klein
Appeal
Transmitting and/or Message:
Letter dated 5/27/04
Total Number ofPali:es: 1 (plus one for this cover sheet)
If you do not receive aU of the pages, please caU us at 970-925-8700 as soon as
possible. lIyou are not the intended addressee ofthis document, we regret the
inconvenience caused you by its receipt. We ask that you telephone us, colled,
to make arrangement for its disposition. Beeause this document may contain
privileged or confidentiallnfonnation intended only for the addressee, we must
request that you take such steps as may be necessary to Insure that this
transmission is either destroyed or retQmed to us at our expense. Thank you
for your assistance.
. .
, ",
-.....,..
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESSOFPROPERTy:q'f'1 At.t3 ~.~. 3.03S'~e~
SCHEDULED PUBLIC HEARING DATE: UVr-. - ;;;;-~ ,200=t-
ST ATE OF COLORADO )
) 55.
County of Pitkin )
I, 5~ O~ (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
')< Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing. A copy of the publication is attached hereto,
_ Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted in a conspicuous place on
the subj ect property at least fifteen (15) days prior to the public hearing and was
continuously visible from the _ day of , 200_, to and
including the date and time of the public hearing. A photograph of the posted
notice (sign) is attached hereto,
X Mailing olnotice, By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class, postage
prepaid U.S. mail 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 was hand delivered or mailed by first class
postage prepaid U.S. mail to any federal agency, state, county, municipal
government, school, service district or other governmental or quasi-governmental
agency that 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. A copy of the
owners and governmental agencies so noticed is attached hereto.
To~ ~ L.o~
(continued on next page)
Rezoning or text amendment. 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 survey 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 has been available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
~~ ;7
Sig aure ~
Th~oing "Affidavit of Notice" was acknowledged before me this .3 day
of U~ , 20O"i, by
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires:
Notary Public
Ll
PUBLIC NOTICE
RE: 943 E. HYMAN/303 CLEVELAND STREET APPEAL OF
ADMINISTRATIVE DECISION
NOTICE IS HEREBY GIVEN that a public hearing will be held on
Thursday, June 24, 2004 at a meeting to begin at 4:00 p.m. before the Aspen
Board of Adjustment. City Council Chambers, 130 S. Galena St., Aspen, to
cons.lder an appeal. by th.e owner of the above cited property of an
admimstratIve decISion as It relates to the calculation of floor area and a
request for a ~oor are~ exemp~on ef :fl,,{Jor an Accessory Dwelling Unit
(ADD) due to mfonual1on proVIded on the City of Aspen website. For further
mfonual1on, contact Sarah Oates at the City of Aspen Community
Develop~ent Department, 130 S. Galena St., Aspen, CO, (970) 920-5441,
saraho@cl.aspen,co.us. -
.
slRick Head
Chair, Aspen Board of Adjustment
I
THE em OF A5l'EN
Published in the Aspen Times on June 9, 2004.
"""'.'.
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KLEIN, COTE & EDWARDS, P.c.
201 N. Mill St., #203
Aspen, CO 81611
970-925-8700
970-925-3977 fax
Herbert S. Klein
Lance R. Cote
Joseph E. Edwards, III
Madhu B. Krishnamurti
June 18,2004
Via Email
John Worcester
City of Aspen Attorney
130 S. Galena St.
Aspen, CO 81611
Re: Appeal of Community Development Direetor's Determination Denying Relief
from Erroneous Information on City Municipal Code Website - 914 E. Hyman Ave.
Dear John:
This letter is in furtherance of our telephone conversation of earlier today. The above appeal
has been scheduled to be heard by the Board of Adjustment ("BOA") on June 24, 2004. I am
informed that the BOA only has four members and no alternates and is thus not duly constituted
under the City Code, which requires that it has five permanent members plus two alternates. Since
the BOA cannot hear the appeal, my client requests that this matter be heard by the City Council.
We agree to waive any objection based on the Council hearing this appeal instead of the BOA.
We would greatly appreciate your advising staff of this and asking them to schedule this
matter with the Council as soon as possible. The outcome of the appeal has an effect on the
construction of my client's residence, so time is of the essence. Please let me know as soon as this is
scheduled.
Thank you very much for your cooperation. I look forward to hearing from you shortly.
Very truly yours,
KLEIN COTE & EDWARDS P.C.
By: S/S via email
Herbert S. Klein
cc: Craig Schubiner
Janver Derrington
N:\Schubinenworcester Itr 2.wpd
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MEMORANDUM
TO:
Mayor and City Council
THRU:
Julie Ann Woods, Community Development Director
FROM:
Sarah Oates, Zoning Officer
RE:
Appeal of an Administrative Decision Related to the Erroneous Website
Information-94l E. Hyman
DATE:
August 23, 2004
SUMMARY: The Community Development Department received a building permit
application from the owner of94l E. Hyman Avenue (aka 303 S, Cleveland) in March
2003. Staff was unable to issue the permit because the applicant had not satisfied the
code requirements despite several revisions. The owner hired Charles Cunniffe
Architects in March 2004, several weeks prior to the expiration of the permit, to submit a
compliant plan. Again, zoning was unable to sign off on the permit because the
application did not comply with the code, most notably; a 50% floor area exemption had
been taken for the Accessory Dwelling Unit. Ordinance 46 of 2001 had removed that
exemption from the code in 2001. The architects based their floor area calculations on
the online code which contained incorrect information (see Exhibit A and B of Herb
Klein's letter dated April 20, 2004). In a letter dated May 17,2004, staff determined that
the owner was not entitled to a 50% floor area exemption for an ADU and that the
applicant was subject to Ordinance 46 of 200 I and any other amendments in effect at the
time of building permit submittal. The owner has appealed staffs determination,
The Board of Adjustment (BOA) was originally scheduled to hear this appeal as one of
their powers and duties is to hear and decide appeals from, and review any order,
requirement, decision, or determination made by, any administrative official charged
with the enforcement of this Title, This type of appeal per the code requires no less than
four (4) members vote to overturn an administrative decision. Currently the BOA only
has five (5) voting members, one of which has a conflict of interest in this case, therefore,
the applicant was given the option of going to City Council.
APPLICANT/COMPLAINT ANT: 303 Associates LLC represented by Herb Klein
BACKGROUND: Staff has been well aware of the inconsistencies in the online code
and has made the City Clerk's office aware of those issues on more than one occasion,
Based on discussions with the Clerk's office, they have had difficultly getting a response
from the codification company. The contract has been terminated with the company and
the Clerk's office now deals with code updates in-house.
Herb Klein's letter, dated April 20, 2004, outlines the background of the case. The
appellant asserts wrongdoing because staff did not "catch" the floor area mistake in one
of the pre-application conferences with the architect. These meetings typically consist of
staff being asked specific questions regarding the code and does not constitute a detailed
plan review or determination of compliance. In fact, although not distributed for building
permit pre-application conferences, the planning pre-application form states: "The
foregoing summary is advisory in nature only and is not binding on the City. The
- '-~'~~"'-"'~--~-'~"~'".~'-'-"_--"'_-----
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.....
summary is based on current zoning, which is subject to change in the future, and upon
factual representations that mayor may not be accurate, The summary does not create a
legal or vested right, "
Further, Section 26.104,050 of the Aspen Municipal Code discusses void permits:
26.104.050 Void Permits.
All persons are presumed to know the terms and requirements of this Title
and the extent of the legal authority of the city and its employees, boards and
commissions to issue development approvals or permits, Any permit or approval
issued in error, or otherwise not in conformity with the requirements of this Title,
shall be void Similarly, any permit or approval issued in reliance upon, or as a
result of, a materially false statement or representation made in the process of
obtaining the permit or development approval shall, likewise, be void Any person
having received a void or voidable permit or approval shall not be relieved from
having to comply with all applicable terms and conditions of this Title and the city
shall not be estoppedfromfully enforcing same,
Therefore, even if staff had issued the permit and not caught the error with regards to the
floor area exemption, the applicant would not be entitled to the exemption if at some later
time the error was discovered. In fact, it is this last sentence that obligates staff to enforce
the City's ordinances regardless of when an information error is realized,
Second, the appellant asserts that the architect was directed by staff to use the website for
code information. In a follow-up meeting, it was admitted by the architect that he had
never been specifically directed to the on-line City of Aspen Land Use Code. City staff
that works with architects, planners and others in the development community was well
aware of the problem and, if aware that on-line code was being used as a resource, would
have mentioned to the person that there were inconsistencies in the code,
Third, Charles Cunniffe Architects is a firm that does many residential projects in the
area and should be knowledgeable of code language critical to residential development
that changed two and one-half years ago. Staff works with the firm on a regular basis
and, in fact, has approved several projects in the last year that have complied with the
current land use regulations, including a project in which 50% of the wall area was
retained and a remodel was done to avoid mitigating with an Accessory Dwelling Unit or
cash-in-lieu.
DISCUSSION: The complainant is requesting that the Aspen City Council, serving as
the Board of Adjustment reverse or modify the Community Development Director's
conclusions and decision. Per Section 26,316.030(E) of the Land Use Code the Council
must decide this case on the following standard:
The decision-making body authorized to hear the appeal shall decide the appeal
based solely upon the record established by the bodY,from which the appeal is
taken.
Further,
2
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A decision or determination shall not be reversed or modified unless there is a
finding that there is a denial of due process, or the administrative body has
exceeded its jurisdiction or abused its discretion.
CONCLUSION: Staff finds there has been no denial of due process or abuse of
discretion, The Community Development Director is obligated to apply the City's
ordinances. Had the Community Development Director allowed a code that is now over
2 years old to apply to this permit, staff believes that would have constituted a denial of
due process or abuse of discretion. The 200 I code change itself met all of the procedural
requirements and was approved through the public hearing process. The code
amendment is part of the public record and is available in the Clerk's office.
Further, as outlined in Section 26.104.050, which is included on the previous page,
applicants are not entitled to erroneous approvals or information given by the City of
Aspen, Applicants are required to comply with the code in effect at the time of building
permit submittal and requiring that of this applicant does not constitute a denial of due
process or abuse of discretion,
RECOMMENDATION: Staff recommends that the City Council uphold the
Community Development Director's administrative decision as it relates to application of
Ordinance 46 of 2001 and any other regulations in effect at the time of building permit
submittal in March 2003 as it is related to 941 E. Hyman Avenue (aka 303 S. Cleveland).
RECOMMENDED MOTION: "I move to uphold the Community Development
Director's administrative decision as it relates to application of Ordinance 46 of 2001 and
any other regulations in effect at the time of building permit submittal in March 2003 as it
related to 941 E. Hyman Avenue (aka 303 S. Cleveland),"
CITY MANAGER'S COMMENTS:
EXHIBITS:
Exhibit A-Letter of Appeal from Herb Klein, dated May 27, 2004
Exhibit B-Letter of Decision from City of Aspen, dated May 17, 2004
Exhibit C-Initial Letter from Herb Klein, with exhibits, dated April 20, 2004
c:1 Ihome/saraho/ codeappealcc .doc
3
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A RESOLUTION OF THE ASPEN CITY COUNCIL UPHOLDING THE
DECISION MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR
REQUIRING THE OWNER lJE SUBJECT TO THE CODE IN EFFECT AT THE
TIME OF BUILDING PERMIT FOR THE PROPERTY LOCATED AT 943 EAST
HYMAN A VENUE (AKA 303 SOUTH CLEVELAND), CITY AND TOWNSITE
OF ASPEN
RESOLUTION NO. _' SERIES OF 2004
WHEREAS, the applicant, 303 Associates LLC, requested the property at 943 East
Hyman Avenue be subject to an earlier code, particularly Ordinance 46 of 2001, due to
erroneous information on the on-line code, and
WHEREAS, the Community Development Director made a determination the property
should be subject to the code in effect at the time of building permit submittal; including
Ordinance 46 of200l; and
WHEREAS, there was no abuse of discretion or denial of due process on the Community
Development Directors part, and the Community Development Director did not exceed
her jurisdiction; and
WHEREAS, the Aspen City Council affirms that the proper procedures were followed
and wishes to uphold the decision of the Community Development Director.
NOW, THEREFORE, BE IT RESOLVED:
City Council affirms the decision of the Community Development Director requiring 943
East Hyman, legally described as Lots H & I, Block 35, East Aspen Addition, be subject
to the code in effect at the time of building permit submittal, particularly Ordinance 46 of
200 I, finding that there was no abuse of discretion or denial of due process on the
Community Development Director's part, and the Community Development Director did
not exceed her jurisdiction,
APPROVED by the City Council at its regular meeting on this 9th day of August, 2004,
ATTEST:
MAYOR:
Kathryn Koch, City Clerk
Helen Kalin Klanderud
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MaY,2S, 2004 5:56PM
HERBERT S, KLEIN, P,C, No 3568' P 2
I" . KLEIN, COT~ & EDWARDS, PX-.l
~~RBeRT $.IQ.IlN
lANC~ R. colt .
JOSII'H l..llWARDs, 10
MAOHU 8, KIll!HNAMUfm
Attorneys at Law
h&kJei'n@rof.n.,.
eo~.net
j~Ot'l.com
rnadhUClrof,net
201 NORTH MILL S'TRI;E'T
Sum 203
ASPEN, COLORADO 81611
lOlephone (970) 92508700
Fa_'t (970) 1250"77
. afao IIdmitted In CaUfomta
May 27, 2004
Via Facsimile 920-~43~
Sarah Oates
City of Aspen Community Development Department
130 S. Galena S1.
Aspen, CO 81611
Re: AppeaJ ofCommllnity Development Director's Determination Denying Relieffl'om
Erroneolls Information On City Municipal Code Website _ 914 E. 'Hyman Ave.
Dear Sarah:
This letteris submitted on behalf of my client, Craig Schubiner and constitutes a notice of appeal
of the decision of the Community Development Director, iS5ued on May 17, 2004, in which she denied
his request for a floor area exemption for 50% of the square footage of a detached ADU. Mr.
Schubiner's request was based upon his (and his architect's) reliance on the version of the City land use .
code on the City's official website, which, we have detennined, 'was not properly updated to show that
the code had been amended to delete the 50% exemption.
The facts and details of this situation are set forth in my letter to John Worcester of April 20,
2004, a copy of which you indicated to me that you have and will prOvide to the :Soard of Adj ustment.
Please consider that letter to be incorporated herein by this reference.
After you have reviewed this letter, please call me to discuss scheduling the appeal hearing on
this matter. Thank you very much for your cooperation. I look forward to hearing from you shortly.
Very truly yours,
KLEIN, COTE ~r:c
By: ~_
rferbert S. Klein
I'tlS<h.biner\oppotl-boa-oates Itr I. wpd
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~aY,27, 2004 5:16PM HERBERT S, KLEIN, p,C,
No,3539 p, I
KLEIN, co'nt & EDWARDS, P.c.
201 N. MJU St., #203
Aapea, CO 81611
970-925-8700
970-925-3977 In
Herbert s. KIeia
I.qu R. c...
JooepIl E. Edward.,m
M.A. B. KrIsIuw.IU1I
LETTER OF FACSIMILE TRANSMISSION
TO:
FROM:
RE:
DATE: May 27, 2004
FAXNO: 920-5439
Sarah Oates
Herb K1ebJ
Appeal
Tl'lIIISmittin.andlor Messap:
Letter dated 5f1.7104
Total NlUDber ofPagea: 1 (plus one for this toYer sheet)
If you do not reteive all of the pages, please eaIIus at 970-925-8700 as soon as
possible. If you lrellot the intended addressee of this doeameat, we naret the
mtoDVenienee ca1Ued you by iU receipt. We ask that you telephone IU, ton.,
to make anugemut for its disposition. Beeaus. this doeumeDt may eODtaJD
Privi!eaed or eGDfidential i.Dformatiou mtended only for the addressee, we must
request that you take such steps as may be nec~ to Uasure that thit
tnnBmlssfoD is either destroyed or returned to as at oar expeDse. Thank yoa
for your assistanee.
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LAW OFFICES OF
HERBERT S. KLEIN & ASSOCIATES, P.c.
HERBERT S. KLEIN
hsklein@rof.net
LANCE R. COT~ .
cote@rof.net
MAOHU B. KRISHNAMURTI
madhu@rof.net
. also admitted in California
April 20, 2004
201 NORTH MILL STREET
SUITE 203
ASPEN, COLORADO 81611
Telephone (970) 925-8700
Facsimile (970) 925-3977
Via Hand DeIive~
John Worcester
City of Aspen Attorney
130 S. Galena St.
Aspen, CO 81611
CITY ATTORNEY'S OFFICE
.APR 21 2004
Re: Erroneous Information on City Municipal Code Website
Dear John:
This letter is in furtherance of our meeting last week wherein we discussed the problem my client
has had as a result of erroneous information on the City of Aspen Municipal Code Website. You
requested that I put into writing the facts and circumstances of this situation. My client's name is Craig
Schubiner and the property is located at 941 Hyman Avenue.
The nature of the problem is as follows. Mr. Schubiner is in the process of obtaining a building
permit for the construction of a single family residence with a detached accessory dwelling unit
("ADU"). Mr. Schubiner's architects, Charles Cunniffe & Associates, have been working with the City
Community Development office staff, primarily Sarah Oates and Denis Murray, with respect to
preparation of the plans and their conformance with City of Aspen residential design guidelines and zone
district regulations, including, applicable floor area. The architects were referred by various staff
members to the on-line website for the municipal code as a reference for applicable code requirements.
In this instance, the content of the on-line Code is obsolete and the architects relied on its information
with respect to the 50% floor area bonus formerly allowed for detached ADU's.
If you visit the City website, you can find a link to the Aspen Municipal Code. When you go to
that site, it states on the first page titled "Preface" the following:
"This document is current through Ordinance 47-2002 and the April 2003 code update.
For further provisions, please consult the City." (See printout attached at Exhibit A).
Once you enter this site and search for Code Section 26.757,020 Calculations and Measurements,
you can see the floor area regulations and the provision titled "Detached ADU floor area bonus." This
provision says that 50% of the measurable square footage of an ADU which is detached from the
primary residence by a distance of no less than 10 feet and which has a footprint of no more than 625
square feet, is excluded from the calculation of floor area. (See printout dated Aprill4, 2004 attached at
'""~-""'-'----...-
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John Worcester
City of Aspen Attorney
April 20, 2004
Page 2
Exhibit B).
Mr. Schubiner's architects relied on this code section in preparing plans for the residence and in
their meetings with staff. Plans were submitted showing a detached ADU with a footprint of
approximately 325 square feet. The plans clearly list all of the elements making up the floor area
calculations and state that the ADU is being counted at 162.5 square feet (e.g. one half of the 325 foot
floor area of the detached ADU). A copy of the relevant page of the plans is attached hereto at Exhibit C,
This calculation was in conformity with the Code as it appears on-line.
Architects from Charles Cunniffe's office met with Sarah and Denis several times during
February and March of this year and discussed floor area issues and ADU issues, particularly with
respect to the necessity for a 10 foot separation in order that the ADU be considered detached. This was
an important issue because if the ADU was not detached, it would count at 100% of the floor area.
Notwithstanding detailed discussions and Sarah's and Denis' review of plans which occurred at several
meetings including those on February 11 th and February 18th (copies of notes from these meetings are
attached at Exhibit D), it was not until March 22nd, when the building plans had already been submitted
for issuance of a building permit that the architects were informed by Sarah, during her plan check
review, that the 50% density bonus for detached ADU's was deleted from the code by Ordinance 46-
200 I. She informed the architects, when they protested and told her that the code provisions on the
website include a 50% density bonus, that she did not think the website has been updated in three years.
She acknowledged that this change was not broUght to their attention during the pre-application
meetings. A copy of a meeting memo by Janver Derrington (an architect with Charles Cunniffe &
Associates), concerning the March 22nd meeting with Sarah Oates, is attached at Exhibit E.
~o"
The architects were quite disturbed because in designing the house, working with Mr. Schubiner
and preparing the construction drawings for the building permit, they fully relied on the Code provisions
and staff input during the pre-application meetings, all of which led them to believe that the 50% density
bonus was available. Their reliance is particularly reasonable in light of the discussions with staff about
ensuring the separation of the ADU so it would be detached, the clear notations on the plans as to the
calculations of the ADU floor area and the on-line Code's Preface which affirmatively stated that it was
current to a date that was after the adoption of Ordinance 46-200 I.
-z,Octl .
After the March 22nd diSCUSSion, Janver Derrington, called the City Clerk and was told there was
no complete copy of the Aspen Land Use Code that is more current than April, 2000. She told him that
the website had been obsolete since December, 2001, and acknowledged that no warning was noted on
the site. Mr. Derrington's notes concerning this conversation are contained in his internal memorandum
of March 22, 2004, attached at Exhibit E.
My client has been informed that he must redesign his residence to reduce the square footage of
his house so that is does not exceed the current limits, Based upon the plans that were submitted for a
- - ~_._._,.--~._~,,~,.~.-.~----.,--_.-
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John Worcester
City of Aspen Attorney
April 20, 2004
Page 3
building permit, the house is in excess of floor area by 162.5 feet, the 50% of the ADU that would have
been exempt under the code provisions on the website, but is no longer exempt as a result of Ordinance
46-200 I. His only other option is to pay cash in lieu and delete the ADU in its entirety. The cash in lieu
amount is $215,000.00.
Mr. Schubiner wants to have an ADU and does not want to pay $215,000 or reduce the size of
the house. His architects relied on the code as shown on the website and spent considerable sums
preparing the plans. We believe we have a clear case of governmental estoppel present in this situation
and wish to obtain the City's agreement that this property is eligible for the 50% floor area bonus for a
detached ADU, notwithstanding the adoption of Ordinance 46-2001.
I'm sure you can appreciate the compelling nature of the evidence in this situation. The City
website expressly states that the city code is current through a date which is well past the adoption of
Ordinance of 46-2001. However, the code provisions had not been changed to reflect the adoption of
that ordinance. Anyone who looks at the website for information is fairly warned by the preface (Exhibit
A) and has the right to rely Upon it based upon its statement of currency. Furthermore, during several
meetings with staff which focused on the plans as submitted, it was quite clear that the plans were based
Upon 50% density bonus, yet it was not until the building plans had been submitted for permit that staff
advised that 50% bonus was not available.
I would greatly appreciate your review of this matter with staff and your determination that the
property is entitled to the 50% density bonus.
Please feel free to call me if you wish to discuss this in further detail or if you have any questions.
I would appreciate your prompt attention to this matter as the building permit application is presently on
hold at the building department and time for issuance of the building permit is running out, which could
result in my client having to pay plan check fees allover again.
Thank you very much for your cooperation. I look forward to hearing from you shortly.
Very truly yours,
Cc: Janver Derrington
schubiner\worcester Itr l.wpd
HERBERT S. KLEIN & ASSOCIATES, P.C,
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Preface
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This document is current through Ordinance 47-2002 and the Aprii, 2003 code update, For further Provisions piease
consult the city,
Copyright 2002 Book Publishing Company,
All rights reserved. No part of this publication may be reproduced or distributed in any form or by any means, or
stored in a database or retrieval system, without the prior written permission of the publisher,
Published by:
LexisNexis
t3427 NE t6th Street
Suite 150
Bellevue WA 98005
t-866-501-5155
www.lexisnexis.com/municic8ICOdes
.'.lexisNexis'"
Municipal Codes
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Section 26.575.020 Calculatig~ and measurements.
Cha ter 26,575 MISCELLANEOUS SUPPLEMENTAL REGULATIONS
Page I of4
S ).. (tnt- B
Section 26.575.020 Calculations and measurements.
The purpose of this Section is to set forth supplemental regulations which relate to
methods for calculating and measuring certain enumerated terms as used in this Title,
The definitions of the terms are set forth at Section 26.104.100,
A. Floor area. In measuring floor areas for floor area ratio and allowable floor area,
the following applies:
1, General. In measuring floor area for the purposes of calculating floor area ratio
and allowable floor area, there shall be included that floor area within the surrounding
exterior walls (measured from their exterior surface) of a building, or portion thereof.
2. Decks, Balconies, Porches, Loaaias and Stairways. The calculation of the floor
area of a building or a portion thereof shall not include decks, balconies, exterior
stairways, terraces and similar features, unless the area of these features is greater than
fifteen percent of the maximum allowable floor area of the building (the excess of the
15% shall be included). Porches shall not be Counted towards FAR.
3, Garaaes. Carports and Storaae Are.as, .For the purpose of calculating floor area
ratio and allowable floor area for a lot whose principal use is residential, the area
included within garages, carports, and storage areas shall be calculated as follows:
a, Garages, carports, and storage areas shall be excluded from residential floor
area calculations in all zone districts, except the R-1 58 zone district, as follows:
Size of Garage, Area Excluded Per Dwelling Unit
Carport, or Storage Area
[First 0 to 250 s.f, 1100% of the area (maximum of 250 s.f.)
[Next 251 s,f. -- 500 s.f. /50% of the area (maximum of additional 125 s,f.) !
~reas above 500 s.f. IINo additional exclusion permitted
For purposes of determining the amount of this exclusion per unit, the area of all
garages, carports, and storage areas on the parcel shall be aggregated.
b. The garage, carport, or storage area shall only be eligible for the amount of the
exclusion shown in sub-section a, if the floor area that is developed on the property does
not exceed three thousand five hundred (3,500) square feet per unit. If the floor area
developed on the property exceeds three thousand five hundred (3,500) square feet per
unit, then the maximum allowable exclusion for the garage, carport, or storage area shall
be reduced by five (5) s.f. for each additional twenty (20) s.f. of floor area developed per
unit on the property,
4. Subarade areas. To determine the Portion of subgrade areas that are to be
http://www.ordlink.comlcodes/aspenl_DATA/Title 26/57Slmn ht~ I
Section 26.575.020 Calculations and measurements.
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Page 2 of 4
included in calculating floor area, the following shall apply:
a, For any story that is partially above and partially below natural or finished
grade, whichever is lower, the total percentage of exterior surface wall area that is
exposed above the most restrictive of the grades shall be the total percentage of the
gross square footage of the subject story included in the floor area calculation,
Subgrade stories with no exposed exterior surface wall area shall be excluded from floor
area calculations.
(Example: If flfteen (15) percent of the exterior surface wall area has been exposed
above natural or finished grade (WhiChever is lower), then fifteen (15) percent of the
gross square footage of the subject story will be included as floor area.)
b. Also excluded from floor area calculations shall be any Portion of a subgrade
accessory dwelling unit whose exterior surface wall area is exposed above grade for
glass, window openings, doors, and similar ways of getting light and air into the unit, or
that provides required Uniform Building Code egress to the unit. The maximum amount
of this exclusion shall be one hundred (100) s.f of the floor area of the accessory
dwelling unit.
c. For any dwelling unit that can be accessed from an alley or private road
entering at the rear or side of the dwelling unit, the garage or carport shall only be
eligible for the exclusions described in sub-sections a. and b. if it is located along said
alley or road.
d. In the R-15B zone district only, garages, carports, and storage areas shall be
excluded from residential floor area calculations up to a maximum of five hundred (500)
square feet per dwelling unit.
5. (Repealed by Ord, No. 56-2000, 98)
6, Accessory Dwellinq . An Accessory Dwelling Unit shall be calculated and
attributed to the allowable floor area for a parcel with the same inclusions and
exclusions for calculating Floor Area as defined in this Section, unless eligible for an
exemption as described below.
Detached ADU Floor Area Bonus Fifty (50) percent of the net livable square
footage of an ADU which is detached from the primary residence by a distance of no
less than ten (10) feet and which is housed in a structure with a footprint of no more than
625 square feet shall be excluded from the calculation of Floor Area
Mandatory Occupancv ADU Floor Area Bonus. Fifty (50) percent of the net livable
square footage of an Accessory Dwelling Unit deed restricted to Mandatory Occupancy
shall be excluded from the calculation of Floor Area. This mandatory occupancy
. restricted requires the ADU be continuously Occupied by a local working residents, as
defined by the Aspen/Pitkin County Housing Authority, for lease periods of six months or
greater. The owner shall retain the right to select a qualified renter.
Combined FAR Bonuses, If an ADU is eligible for both of the Floor Area bonuses
described above, one hundred (100) percent of the net livable square footage of the
ADU shall be excluded from the calculation of Floor Area,
7. Linked Pavilion. Any element linking the principal structure to an accessory
structure shall not be included in the calculation of floor area provided that the linking
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, Section 26,575.020 Calculations and measurements. I
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structure is no more than one (1) story tall, six (6) feet wide and ten (10) feet long, Areas
of linking structures in excess of ten feet in length shall be counted in floor area,
B. Building Heights.
1. Methods of Measurement for Varying Types of Roofs.
a. Flat Roofs or Roofs With a Slope of Less Than 3:12. The height of the building
shall be the maximum distance measured vertically from the natural or finished grade,
whichever is lower, to the top or ridge of a flat, mansard, or other roof with a slope of
less than 3:12.
b. Roofs With a Slope From 3:12 to 7:12. For roofs with a slope from 3:12 to 7:12,
height shall be measured vertically from the natural or finished grade, whichever is
lower, to the mean height between the eave point and ridge of a gable, hip, gambrel or
other similar pitched roof. The ridge of a gable, hip, gambrel, or other pitched roof shall
not extend over five feet above the maximum height limit.
c, Roofs With a Slope of 8:12 or Greater. For roofs with a slope of 8:12 or
greater, height shall be measured vertically from the natural or finished grade, whichever
is lower, to a point one-third (1/3) of the distance up from the eave point to the ridge.
There shall be no limit on the height of the ridge, Chimneys and other appurtenances
may extend up to a maximum of two (2) feet above the ridge.
d. Chimneys, Antennas and Other Appurtenances. Antennas, chimneys, flues,
vents or similar structures shall not extend over ten (10) feet above the specified
maximum height limit, except for roofs with a pitch of 8:12 or greater, these elements
may not extend more than two (2) feet above the ridge. Water towers, solar panels, and
mechanical equipment shall not extend over five (5) feet above the specified maximum
height limit. Church spires, bell towers and like architectural projections, as well as flag
poles, may extend over the specified maximum height limit.
2, Exceotions for Buildinas on Slooes. The maximum height of a building's front
(street facing) facade may extend for the first thirty (30) feet of the building's depth.
3. Exee tions for Areawa s Li htwells and Basement Stairwells, An areaway,
lightwell or basement stairwell of less than one hundred (100) square feet, entirely
recessed behind the vertical plane established by the portion of the bUilding facade
which is closest to the street, and enclosed on all four sides to within eighteen (18)
inches of the first floor level shall not be counted towards maximum permissible height.
C, Lot Area. Except in the R15-B zone district, when calculating floor area ratio, lot
areas shall include only areas with a slope of less than 20%. In addition, half (,50) of lot
areas with a slope of 20-30% may be counted towards floor area ratio; areas with slopes
of greater than 30% shall be excluded. The total reduction in FAR attributable to slope
redUction for a given site shall not exceed 25%,
Also excluded from total lot area for the purpose of floor area calculations in all Zone
districts is that area beneath the high water line of a body of water and that area within a
vacated right-of-way, or within an existing or proposed dedicated right-of-way or surface
easement. Lot area shall include any lands dedicated to the City of Aspen or Pitkin
County for the public trail system, any open irrigation ditch, or any lands SUbject to an
above ground or below ground surface easement such as utilities that do not coincide
with road easements, When calculating density, lot area shall have the same exclusions
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Section 26.575,020 Calculat~s Imd measurements.
Page 4 of 4
and inclusions as for calculating floor area ratio except for exclusion of areas of greater
than 20% slope.
D. Site Coverage. Site coverage is typically expressed as a percentage, When
calculating site coverage of a structure or building, the exterior walls of the structure or
building at ground level should be used. Porches, roofs, or balcony overhangs,
cantilevered building elements and similar features extending directly over grade shall
be excluded from maximum allowable site coverage calculations.
E. Volume.
1, Dividino Areas. The volume of a dwelling shall be calculated by first dividing all of
the areas within the dwelling that count as floor area into distinct rooms, corridors, or
other spaces, and then multiplying the floor area of each room, corridor, or other space
by the plate height of that room, corridor, or other space.
2. Different Plate Heiohts. Where any room, corridor, or other space in a dwelling
has walls with different plate heights, volume shall be calculated by using the average of
all of the plate heights within the room, as depicted in the following illustration:
· b
I b
.!iD. tIoor
j
Section w/oqwII_1us.
&lotion wtdlll'mllt _Ius.
i". b'
Typicol Room
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MEMORANDUM
TO:
Mayor and City Council
THRU:
Julie Ann Woods, Community Development Director
Sarah Oates, Zoning Officer ~
FROM:
RE:
Appeal of an Administrative Decision Related to the Erroneous Website
Information-94l E. Hyman
DATE:
August 23, 2004
SUMMARY: The Community Development Department received a building permit
application from the owner of 941 E, Hyman Avenue (aka 303 S. Cleveland) in March
2003, Staff was unable to issue the permit because the applicant had not satisfied the
code requirements despite several revisions, The owner hired Charles Cunniffe
Architects in March 2004, several weeks prior to the expiration of the permit, to submit a
compliant plan. Again, zoning was unable to sign off on the permit because the
application did not comply with the code, most notably; a 50% floor area exemption had
been taken for the Accessory Dwelling Unit. Ordinance 46 of 2001 had removed that
exemption from the code in 2001. The architects based their floor area calculations on
the online code which contained incorrect information (see Exhibit A and B of Herb
Klein's letter dated April 20, 2004). In a letter dated May 17,2004, staff determined that
the owner was not entitled to a 50% floor area exemption for an ADU and that the
applicant was subject to Ordinance 46 of200l and any other amendments in effect at the
time of building permit submittal. The owner has appealed staffs determination.
The Board of Adjustment (BOA) was originally scheduled to hear this appeal as one of
their powers and duties is to hear and decide appeals from, and review any order,
requirement, decision, or determination made by, any administrative official charged
with the enforcement o{this Title, This type of appeal per the code requires no less than
four (4) members vote to overturn an administrative decision. Currently the BOA only
has five (5) voting members, one of which has a conflict of interest in this case, therefore,
the applicant was given the option of going to City Council.
APPLICANT/COMPLAINTANT: 303 Associates LLC represented by Herb Klein
BACKGROUND: Staff has been well aware of the inconsistencies in the online code
and has made the City Clerk's office aware of those issues on more than one occasion.
Based on discussions with the Clerk's office, they have had difficultly getting a response
from the codification company, The contract has been terminated with the company and
the Clerk's office now deals with code updates in-house,
Herb Klein's letter, dated April 20, 2004, outlines the background of the case. The
appellant asserts wrongdoing because staff did not "catch" the floor area mistake in one
of the pre-application conferences with the architect. These meetings typically consist of
staff being asked specific questions regarding the code and does not constitute a detailed
plan review or determination of compliance, In fact, although not distributed for building
permit pre-application conferences, the planning pre-application form states: "The
fiJregoinfS summary is advisory in nature only and is not binding on the City The
,K "
'.
summary is based on current zoning, which is subject to change in the future, and upon
factual representations that mayor may not be accurate, The summary does not create a
legal or vested right. "
Further, Section 26,] 04.050 of the Aspen Municipal Code discusses void permits:
26.104.050 Void Permits.
All persons are presumed to know the terms and requirements of this Title
and the extent of the legal authority of the city and its employees, board5 and
commissions to issue development approvals or permits, Any permit or approval
issued in error, or otherwise not in conformity with the requirements of this Title,
shall be void. Similarly, any permit or approval issued in reliance upon, or as a
result 0,[, a materially false statement or representation made in the process of
obtaining the permit or development approval shall, likewise, be void Any person
having received a void or voidable permit or approval shall not be relievedfrom
having to comply with all applicable terms and conditions of this Title and the city
shall not be estopped Ji'om fully enforcing same,
Therefore, even if staff had issued the permit and not caught the error with regards to the
floor area exemption, the applicant would not be entitled to the exemption if at some later
time the error was discovered, In fact, it is this last sentence that obligates staff to enforce
the City's ordinances regardless of when an information error is realized.
Second, the appellant asserts that the architect was directed by staff to use the website for
code information. In a follow-up meeting, it was admitted by the architect that he had
never been specifically directed to the on-line City of Aspen Land Use Code. City staff
that works with architects, planners and others in the development community was well
aware of the problem and, if aware that on-line code was being used as a resource, would
have mentioned to the person that there were inconsistencies in the code.
Third, Charles Cunniffe Architects is a firm that does many residential projects in the
area and should be knowledgeable of code language critical to residential development
that changed two and one-half years ago. Staff works with the firm on a regular basis
and, in fact, has approved several projects in the last year that have complied with the
current land use regulations, including a project in which 50% of the wall area was
retained and a remodel was done to avoid mitigating with an Accessory Dwelling Unit or
cash-in-lieu.
DISCUSSION: The complainant is requesting that the Aspen City Council, serving as
the Board of Adjustment reverse or modify the Community Development Director's
conclusions and decision. Per Section 26.3l6.030(E) of the Land Use Code the Council
must decide this case on the following standard:
The decision-making body authorized to hear the appeal shall decide the appeal
based solely upon the record established by the body from which the appeal is
taken.
Further,
2
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A decision or determination shall not be reversed or modified unless there is a
,finding that there is a denial of due process, or the administrative body has
exceeded itsjurisdiction or abused its discretion.
CONCLUSION: Staff finds there has been no denial of due process or abuse of
discretion, The Community Development Director is obligated to apply the City's
ordinances. Had the Community Development Director allowed a code that is now over
2 years old to apply to this permit, staff believes that would have constituted a denial of
due process or abuse of discretion. The 2001 code change itself met all of the procedural
requirements and was approved through the public hearing process. The code
amendment is part of the public record and is available in the Clerk's office.
Further, as outlined in Section 26,104,050, which is included on the previous page,
applicants are not entitled to erroneous approvals or information given by the City of
Aspen. Applicants are required to comply with the code in effect at the time of building
permit submittal and requiring that of this applicant does not constitute a denial of due
process or abuse of discretion,
RECOMMENDATION: Staff recommends that the City Council uphold the
Community Development Director's administrative decision as it relates to application of
Ordinance 46 of 2001 and any other regulations in effect at the time of building permit
submittal in March 2003 as it is related to 941 E, Hyman Avenue (aka 303 S. Cleveland).
RECOMMENDED MOTION: "I move to uphold the Community Development
Director's administrative decision as it relates to application of Ordinance 46 of 200 I and
any other regulations in effect at the time of building permit submittal in March 2003 as it
related to 94] E, Hyman Avenue (aka 303 S. Cleveland)."
CITY M~GER" COM!', ""'-: ~ ~
r:r~, ~:.~;~p;::: .
EXHIBITS:
Exhibit A-Letter of Appeal from Herb Klein, dated May 27, 2004
Exhibit B-Letter of Decision from City of Aspen, dated May] 7, 2004
Exhibit C-Initial Letter from Herb Klein, with exhibits, dated April 20, 2004
c:1 IhomeJsarahol codeappealcc. doc
3
A RESOLUTION OF THE ASPEN CITY COUNCIL UPHOLDING THE
DECISION MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR
REQUIRING THE OWNER BE SUBJECT TO THE CODE IN EFFECT AT THE
TIME OF BUILDING PERMIT FOR THE PROPERTY LOCATED AT 943 EAST
HYMAN AVENUE (AKA 303 SOUTH CLEVELAND), CITY AND TOWNSITE
OF ASPEN
RESOLUTION No.'33, SERIES OF 2004
WHEREAS, the applicant, 303 Associates LLC, requested the property at 943 East
Hyman Avenue be subject to an earlier code, particularly Ordinance 46 of 2001, due to
erroneous information on the on-line code, and
WHEREAS, the Community Development Director made a determination the property
should be subject to the code in effect at the time of building permit submittal, including
Ordinance 46 of200l; and
WHEREAS, there was no abuse of discretion or denial of due process on the Community
Development Directors part, and the Community Development Director did not exceed
her jurisdiction; and
WHEREAS, the Aspen City Council affirms that the proper procedures were followed
and wishes to uphold the decision of the Community Development Director.
NOW, THEREFORE, BE IT RESOLVED:
City Council affirms the decision of the Community Development Director requiring 943
East Hyman, legally described as Lots H & I, Block 35, East Aspen Addition, be subject
to the code in effect at the time of building permit submittal, particularly Ordinance 46 of
200 I, finding that there was no abuse of discretion or denial of due process on the
Community Development Director's part, and the Community Development Director did
not exceed her jurisdiction,
APPROVED by the City Council at its regular meeting on this 9th day of August, 2004.
ATTEST:
MAYOR:
Kathryn Koch, City Clerk
Helen Kalin Klanderud
Ma..27. 2004 5:16PM
HERBERT S, KLEIN, P,C,
r- . KLEIN, corE if EDWARDS, P.l:': I
No,3539 P 2
r;X?tI\~; t'X V
HEl\BERT S, KlI!IN
LANeS R. cort .
J()S!PH e. EDWARDS, III
IIADHU .. KItJIHtlAMURTI
h5k1l1nGrof.ne(
eottOtvf.n.t
JodyOvlnk>n.c:om
madhu@:rof.net
Attorneys at Law
. alG ;a,dmlttad in ~Ifotrt'a
201 NORTH MILL STREeT
SUITE 2a3
MPEN. COLORADO ..."
T.,.ph.... (G70) G2W700
Foeslmll. (970) 9254971
May 27, 2004
Via Facsimile 0-5439
Sarah Oates
City of Aspen ColDIllunity Development Department
130 S. Galena St.
Aspen. CO 81611
Re: Appeal ofCommWliey Development Direetor's DetennlDadon DenylDl ReHeffrom
Erroneous Infonnation on Ciey Municipal Code Website - 914 E. Hyman Ave.
Dear Sarah:
This letter is submitted on behalf ofmy client, Craig Schubiner and constitutes a notice of appea1
of the decision of the Community Development Director, issued on May 17, ;2004, in which she denied
his request for a floor area exemption for 50010 of the square footage of a detached ADU. Mr.
Schubiner's request was based upon his (and his architect's) leHanee on the version of the City land use
code on the City's official website, which, we have determined, was not properly updated to showthat
the code had been amended to delete the 50010 exemption.
The filets and details of this situation are set forth in my letter to Jolm Worcester of April 20,
2004, a copy ofwbich you indicated to me that you have and will provide to the Board of Adjustment.
Please consider that letter to be incorporated herein by this reference.
After you have reviewed this letter, please call me to discuss scheduling the appea1 hearing on
this matter. Thank you vet'j much for your cooperation. I look forward to hearing from you shortly.
Very truly yours,
KLEIN, corE & EDWARDS, P.C.
"'H~
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May 17,2004
.
ASPEN / PITKIN
Herb Klein
Herbert S. Klein' & Associates, P .C,
201 N, Mill Street, Suite 203
Aspen, CO 81611
1~ I .
RE: ~E. Hyman Avenue
COMMUNITY DEVEWPMENT DEPARTMENT
Dear Herb:
This letter is a follow up to our discussion on May II, 2004 in which we discussed the
floor area regulations which were in effect prior to the adoption of Ordinance 46 of 200 I
which were mistakenly included in the online code that your client referenced,
Community Development staff has determined that this permit is subject to the
requirements of the code in effect at the time of building permit submittal, which in this
case March 2003,. The amendments to the code (Ordinance 46 of 2001) were in effect
and should have beeI,l followed, as pointed out by Sarah Oates. Therefore, the proposed
Accessory Dwelling Unit (ADU) is not eligible for a 50% floor area exemption and the
permit, as currently proposed, does not comply with the floor area requirements of the
RMF zone district. '
Administrative decisions may be appealed to the Board of Adjustment per Section
26,316. Please feel free to work with Sarah Oates if you intend to pursue this option.
The Chief Building Official, Stephen Kanipe, has agreed to do an administrative
extension of the building permit application, which was to expire March 26, 2004, until
this matter is resolved.
Please contact me at 920-5100 with any questions.
Regards; ,
~ ~Development D~rector
Cc: John Worcester, City Attorney
Sarah Oates, Zoning Officer
130 SoUTH GALENA STREET. A5PEN, COLORAOO 816-11-1975 . PHONE 970.9205090 . FAX 970.920.5439
.-.-
LAW OFFICES OF
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GM,/u:f \lC (I
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HERBERT S. KLEIN & ASSOCIATES, P.e.
HERBERT S. KLEIN
hsklein@rof.net
LANCE R. COTE *
cote@rof.net
MADHU B. KRISHNAMURTI
madhu@rof.net
201 NORTH MILL STREET
SUITE 203
ASPEN, COLORADO 81611
Telephone (970) 925-8700
Facsimile (970) 925-3971
April 20, 2004
* also admitted in California
Via Hand Delivery
John Worcester
City of Aspen Attorney
130 S, Galena St.
Aspen, CO 81611
CITY mOONEY'S OFFICE
APR 2 1 2nn~
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Re: Erroneous Information on City Municipal Code Website
Dear John:
This letter is in furtherance of our meeting last week wherein we discussed the problem my client
has had as a result of erroneous information on the City of Aspen Municipal Code Website. You
requested that I put into writing the facts and circumstances of this situation. My client's name is Craig
Schubiner and the property is located at 941 Hyman Avenue.
The nature of the problem is as follows, Mr. Schubiner is in the process of obtaining a building
permit for the construction of a single family residence with a detached accessory dwelling unit
("ADU"), Mr. Schubiner's architects, Charles Cunniffe & Associates, have been working with the City
Community Development office staff, primarily Sarah Oates and Denis Murray, with respect to
preparation of the plans and their conformance with City of Aspen residential design guidelines and zone
district regulations, including, applicable floor area. The architects were referred by various staff
members to the on-line web site for the municipal code as a reference for applicable code requirements,
In this instance, the content ofthe on-line Code is obsolete and the architects relied on its information
with respect to the 50% floor area bonus formerly allowed for detached ADO's.
If you visit the City website, you can find a link to the Aspen Municipal Code. When you go to
that site, it states on the first page titled "Preface" the following:
"This document is current through Ordinance 47-2002 and the April 2003 code update.
For further provisions, please consult the City," (See printout attached at Exhibit A).
Once you enter this site and search for Code Section 26.757.020 Calculations and Measurements,
you can see the floor area regulations and the provision titled "Detached ADU floor area bonus," This
provision says that 50% of the measurable square footage of an ADU which is detached from the
primary residence by a distance of no less than 10 feet and which has a footprint of no more than 625
square feet, is excluded from the calculation of floor area, (See printout dated April 14, 2004 attached at
-
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John Worcester
City of Aspen Attorney
April 20, 2004
Page 3
building permit, the house is in excess of floor area by 162.5 feet, the 50% of the ADU that would have
been exempt under the code provisions on the website, but is no longer exempt as a result of Ordinance
46-2001. His only other option is to pay cash in lieu and delete the ADU in its entirety. The cash in lieu
amount is $215,000,00.
Mr. Schubiner wants to have an ADU and does not want to pay $215,000 or reduce the size of
the house. His architects relied on the code as shown on the website and spent considerable sums
preparing the plans. We believe we have a clear case of governmental estoppel present in this situation
and wish to obtain the City's agreement that this property is eligible for the 50% floor area bonus for a
detached ADU, notwithstanding the adoption of Ordinance 46-2001.
I'm sure you can appreciate the compelling nature of the evidence in this situation. The City
website expressly states that the city code is current through a date which is well past the adoption of
Ordinance of 46-2001. However, the code provisions had not been changed to reflect the adoption of
that ordinance. Anyone who looks at the website for information is fairly warned by the preface (Exhibit
A) and has the right to rely upon it based upon its statement of currency. Furthermore, during several
meetings with staff which focused on the plans as submitted, it was quite clear that the plans were based
upon 50% density bonus, yet it was not until the building plans had been submitted for permit that staff
advised that 50% bonus was not available.
I would greatly appreciate your review of this matter with staff and your determination that the
property is entitled to the 50% density bonus.
Please feel free to call me if you wish to discuss this in further detail or if you have any questions.
I would appreciate your prompt attention to this matter as the building permit application is presently on
hold at the building department and time for issuance of the building permit is running out, which could
result in my client having to pay plan check fees all over again.
Thank you very much for your cooperation. I look forward to hearing from you shortly,
Very truly yours,
HERBERT S. KLEIN & ASSOCIATES, P.C,
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Cc: Janver Derrington
schubiner\worcester Itr l.wpd
Aspen Municipal Code
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Page 1 of I
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Preface
This document is current through Ordinance 47-2002 and the April, 2003 code update, For further provisions please
consult the city,
Copyright 2002 Book Publishing Company_
All rights reserved, No part of this publication may be reproduced or distributed in any form or by any means, or
stored in a database or retrieval system, without the prior written permission of the publisher.
Published by:
LexisNexis
t 3427 NE 16th Street
Suite 150
Bellevue WA 98005
1-866-501-5155
www.lexisnexis.com/municioalcodes
.'. lexisNexis'"
Iv\unicipal Codes
http://www.ordlink.com/codes/aspen/preface.htm
4/13/2004
~ectlOn L6,575,020 Calculations and measurements,
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Page I of 4
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Chapter 26,575 MISCELLANEOUS SUPPLEMENTAL REGULATIONS
Section 26.575.020 Calculations and measurements.
The purpose of this Section is to set forth supplemental regulations which relate to
methods for calculating and measuring certain enumerated terms as used in this Title,
The definitions of the terms are set forth at Section 26.104,100.
A. Floor area. In measuring floor areas for floor area ratio and allowable floor area,
the following applies:
1, General, In measuring floor area for the purposes of calculating floor area ratio
and allowable floor area, there shall be included that floor area within the surrounding
exterior walls (measured from their exterior surface) of a building, or portion thereof,
2. Decks, Balconies, Porches, LOGGias and Stairways, The calculation of the floor
area of a building or a portion thereof shall not include decks, balconies, exterior
stairways, terraces and similar features, unless the area of these features is greater than
fifteen percent of the maximum allowable floor area of the building (the excess of the
15% shall be included), Porches shall not be counted towards FAR,
3, GaraGes, Carports and StoraGe Areas, For the purpose of calculating floor area
ratio and allowable floor area for a lot whQse principal use is residential, the area
included within garages, carports, and storage areas shall be calculated as follows:
a, Garages, carports, and storage areas shall be excluded from residential floor
area calculations in all zone districts, except the R-15B zone district, as follows:
Size of Garage, Area Excluded Per Dwelling Unit
Carport, or Storage Area
IFirst 0 to 250 s.f. 11100% of the area (maximum of 250 sJ.) I
INext 251 sJ. -- 500 s, f. 150% of the area (maximum of additional 125 s, f,)
IAreas above 500 s,f, IINO additional exclusion permitted I
For purposes of determining the amount of this exclusion per unit, the area of all
garages, carports, and storage areas on the parcel shall be aggregated.
b. The garage, carport, or storage area shall only be eligible for the amount of the
exclusion shown in sub-section a, if the floor area that is developed on the property does
not exceed three thousand five hundred (3,500) square feet per unit. If the floor area
developed on the property exceeds three thousand five hundred (3,500) square feet per
unit, then the maximum allowable exclusion for the garage, carport, or storage area shall
be reduced by five (5) sJ, for each additional twenty (20) s,f, of floor area developed per
unit on the property,
4, SubGrade areas, To determine the portion of subgrade areas that are to be
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Section 26,575,020 Calculations and measurements.
h,
Page 2 of 4
included in calculating floor area, the following shall apply:
a, For any story that is partially above and partially below natural or finished
grade, whichever is lower, the total percentage of exterior surface wall area that is
exposed above the most restrictive of the grades shall be the total percentage of the
gross square footage of the subject story included in the floor area calculation,
Subgrade stories with no exposed exterior surface wall area shall be excluded from floor
area calculations.
(Example: If fifteen (15) percent of the exterior surface wall area has been exposed
above natural or finished grade (whichever is lower), then fifteen (15) percent of the
gross square footage of the subject story will be included as floor area,)
b, Also excluded from floor area calculations shall be any portion of a subgrade
accessory dwelling unit whose exterior surface wall area is exposed above grade for
glass, window openings, doors, and similar ways of getting light and air into the unit, or
that provides required Uniform Building Code egress to the unit. The maximum amount
of this exclusion shall be one hundred (100). s.f of the floor area of the accessory
dwelling unit,
c, For any dwelling unit that can be accessed from an alley or private road
entering at the rear or side of the dwelling unit, the garage or carport shall only be
eligible for the exclusions described in sub-sections a, and b, if it is located along said
alley or road.
d. In the R-15B zone district only, garages, carports, and storage areas shall be
excluded from residential floor area calculations up to a maximum of five hundred (500)
square feet per dwelling unit.
5, (Repealed by Ord. No. 56-2000, ~ 8)
6, Accessory Owe/ling . An Accessory Dwelling Unit shall be calculated and
attributed to the allowabie floor area for a parcel with the same inclusions and
exclusions for calculating Floor Area as defined in this Section, unless eligible for an
exemption as described below,
Detached ADU F/oor Area Bonus Fifty (50) percent of the net livable square
footage of an ADU which is detached from the primary residence by a distance of no
less than ten (10) feet and which is housed in a structure with a footprint of no more than
625 square feet shall be excluded from the calculation of Floor Area
Mandatory Occuoancv ADU Floor Area Bonus, Fifty (50) percent of the net livable
square footage of an Accessory Dwelling Unit deed restricted to Mandatory Occupancy
shall be excluded from the calculation of Floor Area, This mandatory occupancy
restricted requires the ADU be continuously occupied by a local working residents, as
defined by the Aspen/Pitkin County Housing Authority, for lease periods of six months or
greater. The owner shall retain the right to select a qualified renter,
Combined FAR Bonuses, If an ADU is eligible for both of the Floor Area bonuses
described above, one hundred (100) percent of the net livable square footage of the
ADU shall be excluded from the calculation of Floor Area,
7. Linked Pavilion. Any element linking the principal structure to an accessory
structure shall not be included in the calculation of floor area provided that the linking
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4/14/2004
, Section 26,575.020 Calculations and measurements.
,
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Page 3 of 4
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structure is no more than one (1) story tall, six (6) feet wide and ten (10) feet long. Areas
of linking structures in excess of ten feet in length shall be counted in floor area.
8, Building Heights.
1, Methods of Measurement for Varying Types of Roofs.
a. Flat Roofs or Roofs With a Slope of Less Than 3:12, The height of the building
shall be the maximum distance measured vertically from the natural or finished grade,
whichever is lower, to the top or ridge of a flat, mansard, or other roof with a slope of
less than 3:12.
b, Roofs With a Slope From 3:12 to 7:12, For roofs with a slope from 3:12 to 7:12,
height shall be measured vertically from the natural or finished grade, whichever is
lower, to the mean height between the eave point and ridge of a gable, hip, gambrel or
other similar pitched roof, The ridge of a gable, hip, gambrel, or other pitched roof shall
not extend over five feet above the maximum height limit.
c, Roofs With a Slope of 8:12 or Greater, For roofs with a slope of 8:12 or
greater, height shall be measured vertically from the natural or finished grade, whichever
is lower, to a point one-third (1/3) of the distance up from the eave point to the ridge,
There shall be no limit on the height of the ridge, Chimneys and other appurtenances
may extend up to a maximum of two (2) feet above the ridge,
d. Chimneys, Antennas and Other Appurtenances. Antennas, chimneys, flUes,
vents or similar structures shall not extend over ten (10) feet above the specified
maximum height limit, except for roofs with a pitch of 8:12 or greater, these elements
may not extend more than two (2) feet above the ridge, Water towers, solar panels, and
mechanical equipment shall not extend over five (5) feet above the specified maximum
height limit. Church spires, bell towers and like architectural projections, as well as flag
poles, may extend over the specified maximum height limit.
2. Exceptions for Buildinos on Slopes. The maximum height of a building's front
(street facing) facade may extend for the first thirty (30) feet of the building's depth.
3, Exceptions for Areawavs, Liahtwells and Basement StailWells, An areaway,
Iightwell or basement stairwell of less than one hundred (100) square feet, entirely
recessed behind the vertical plane established by the portion of the building facade
which is closest to the street, and enclosed on all four sides to within eighteen (18)
inches of the first floor level shall not be counted towards maximum permissible height.
C. Lot Area. Except in the R 15-8 zone district, when calculating floor area ratio, lot
areas shall include only areas with a slope of less than 20%. In addition, half (.50) of lot
areas with a slope of 20-30% may be counted towards floor area ratio; areas with slopes
of greater than 30% shall be excluded, The total reduction in FAR attributable to slope
reduction for a given site shall not exceed 25%.
Also excluded from total lot area for the purpose of floor area calculations in all zone
districts is that area beneath the high water line of a body of water and that area within a
vacated right-of-way, or within an existing or proposed dedicated right-of-way or surface
easement. Lot area shall include any lands dedicated to the City of Aspen or Pitkin
County for the public trail system, any open irrigation ditch, or any lands subject to an
above ground or below ground surface easement such as utilities that do not coincide
with road easements, When calculating density, lot area shall have the same exclusions
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4/14/2004
Section 26.575,020 Calculations 1md measurements.
",",
Page 4 of 4
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and inclusions as for calculating floor area ratio except for exclusion of areas of greater
than 20% slope,
0, Site Coverage. Site coverage is typically expressed as a percentage. When
calculating site coverage of a structure or building, the exterior walls of the structure or
building at ground level should be used. Porches, roofs, or balcony overhangs,
cantilevered building elements and similar features extending directly over grade shall
be excluded from maximum allowable site coverage calculations,
E, Volume.
1, Dividino Areas. The volume of a dwelling shall be calculated by first dividing all of
the areas within the dwelling that count as floor area into distinct rooms, corridors, or
other spaces, and then multiplying the floor area of each room, corridor, or other space
by the plate height of that room, corridor, or other space,
2, Different Plate Heiohts. Where any room, corridor, or other space in a dwelling
has walls with different plate heights, volume shall be calculated by using the average of
all of the plate heights within the room, as depicted in the following illustration:
· b
. b
(...11_ L
See-riM wteqtl.'\l cosner fa
s..~ticm. wldifft:rtnt COttle! hts.
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Divide by number of =_
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d .:
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= a\'Cf.1ge .phu:e ht
4
Plan
No. 55-2000, S 14; Ord. No. 56-2000, SS 5, 6, 8)
(Ord, No, 44-1999, S 7; Ord,
http://www.ordlink.com/codes/aspen/ _ DA T NTitle _26/57 5/020.html
4/14/2004
CHARLES CUNN!FFE
610 E. HYMAN AVE.
PHONE (970)925-5590
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AR\"".,!TECTS
ASPEN, CO 81611
FAX (970)925-5076
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610 E. HYMAN AVE. ASPEN, to 81611
(970)925-5590 FAX (970)925-5076
WEBSITE www.cunniffe.com
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610 E. HYMAN AVE. ASPEN, CO 81611
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City of Aspen and Pitkin County
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100.I
Page 1 of 2
News Articles & Press Releases
i;'J t~ A,: '/,:1 n,:::.; d 3,: ,"If,::!]
Kick-off for City/County New Website
Release Date: November 14, 2002
Released By: City
Type of Information: Press Release
Contact: Linda Gerdenich, Director of Com
RelationS/Communi
970/920-5082 Email: Iindaae(6lci.asoen
NEW: aspenpitki
FOR IMMEDIATE
RELEASE
Nan Sundeen, Director of Community Re
970/920-5209 Emall: nans@Q.i!2)-!.n
WEnS KI~,K8Jtf~~l~E
~\:SS'TEO
Aspen, Colorado 14 November, 2002 The
community is invited to a series of Web Kick Off's,
for www.aspenpitkin.com. Staffwii/
be available to assist in locating information and
receive community feedback regarding the new site,
The City of Aspen and Pitkin County recently launched
a new website that is focused on providing access to
http://www, aspenpitkin,comJapps/news/news _item_detail. cti11?N ewsItemID= 103
7/~OIf\,f
City of Aspen and Pitkin County
...., ~
"",,, a new website that is focused on providing a~ to
significantly more government information.
Page 2 of2
Web Kick-Off sessions will be held in Sister
Cities Room of City Hall on:
Monday, November 18 - 8am- 1pm & 3-
7pm,
Tuesday, November 19 - 8am- 1pm,
Thursday, November 21 - 3-7pm,
Friday, November 22 - 8am-1pm & 3-
5pm,
With a new "look", featuring photo images of the
Maroon Bells and the Silver Queen Gondola, the
content will allow for more-up to-date information,
emergency aierts, meeting agendas and minutes,
press releases, and a calendar of events. Customer
information requests wili be tracked to determine just
what customers want to access,
Come and play on the new
website,www.aspenpitkin.com and provide your
input. Refreshments and give aways' Information
contact, 920-S082.
Take a look and see what you think
www.as[Jen[Jitkin.com.
###
Linda Gerdenich
Director of Community Reiations / Communications
linda!l!'~_asl!en.co.uj;
(970) 920-5082 Office
(970) 274-2478 Celi
http://www.aspenpitkin.comlapps/news/news _item_detail. c frn?N ewsItemID= 103
7/28/04
ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADORE" OF PROPERTY 9 L/ / c/ V13 r;: fJ Y yAa!<j,., co
SCHEDULED PUBLIC HEARING DATE: '7!)j. /04- . ,200_
I
STATE OF COLORADO )
) SS.
County of Pitkin )
I, , ~ C1 WI '(LS 1--1 'v,~t (-', p1=, prin')
being or presenting an Applicant to the City 0 Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
v;,ublication of notice: By the publication in the legal notice section of an official
~ ~aper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing, A copy of the publication is attached h<<(,'eto,
I
_ Posting of notice: By posting of notice, which form was obtained from 'he
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
andtwenty-six (26) inches high, and which was composed ofletiers not
. less than one inch in height. Said notice was posted at least fifteen (15~ays
prior to the public hearing and was continuously visible from the _ d~y of
,200_, to and including the date and time of the ~ublic
hearing. A photograph of the posted notice (sign) is attached hereto,
_ Mailing of notice, By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.3()4.060(E)(2) of the Aspen Land Use Code, At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to any federal agency, state, county, municipal govemment,
school, service district or other governmental or quasi-governmental agency that
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. A copy of the owners and
governmental agencies so noticed is attached hereto,
(continued on next page)
Rezoning or text amendment, 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 survey 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 has been available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
,-
~
The fc:sint;Affidavit of Notice" w.as ~cknowledged befL:.m~3> day
of U ,200~,by ~. ""- 1
PUBUC NOTICE
RE: 941 & 943 E. HYMAN/ 303 CLEVELAND
STREET APPEAL OF ~INISTRA.TIVE DECISION
NOTICE IS HEREBY N that a public hearing
will be held on Mond August 9, 2004 at a meet.
Ing to begin al 5:.00 p . before the Aspen City
Council, City Council beTS, 130 S. Galena St.,
Aspen, to consider an appeal by the owner of the
above cited property of an administrative decl.
sion as It relates to the calculation of floor area
and a ~t lor "a Door area eJ[emptlon of 50%
for.an AccedQtYDwelllng Unit (ADU) due to in-
formation~ro~ on the City 01 Aspe-n webslte.
For furt'tid~" ',,* , contact Sarah Oates at
the'Dty of~' ", unity Developmeo.' De-
partment, 1305. t., As~, CO, (970) 920-
5441, saraho@cl.aspen.c us.
(Helen Kalin KIanderud
Mayor, Aspen City Council
Published in The Aspen Times on July 24, 2004.
(1769)
WITNESS MY HAND AND OFFICIAL SEAL
~ /~ ~I O?t-
My commissio~XPires:
~ ,-J
Notary Public
ATTACHMENTS:
COPY OF THE PUBLICATION
PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL