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HomeMy WebLinkAboutlanduse case.boa.707 W North St.002-03 - AGENDA " .--" ,"'''\ ASPEN BOARD OF ADJUSTMENT THURSDAY, JUNE 5, 2003 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 03-07 A. 237 & 239 Gilbert Street, Robert Scherer--request for a ten (10) foot front yard setback variance for the construction of a roof over existing entry doors. 2:>3 -O~ B. 707 W. North Street, Jeff Gorsuch--appeal of determination by City Engineer CW~aA 2-f-1 V. ~~ t-f -1 ADJOURN ,...... - December 10, 2003 Mr. and Mrs. Jeff Gorsuch 707 W. North Street Aspen, CO 81611 Dear Jeff and Nancy, Thank you for taking the time to express your view of the treatment your representatives received from the Board of Adjustment on June 5, 2003 As Chairman of the Board of, Adjustments, I must apologize for the tardiness of this response. To begin, I must agree with your statement that the process is confusing and flawed. It should be re-examined and amended to be more user-friendly and less confusing. Please keep in mind that the Board does not create the laws that it is asked to adjust. Pursuant to the Aspen Municipal Code, in order to authorize a variance form the dimensional requirements of Title 26, the Board of Adjustment shall make a finding that each of the following three circumstances exist: ---The grant of the variance will be generally consistent with the purposes, goals and objectives, and policies of the Aspen Area Community Plan and this title. ---The grant of the variance is the minimum variance that will make possible the reasonable use of the parcel, building, or structure. ---Literal interpretation and enforcement of the terms and provisions of this title would deprive the applicant of rights commonly enjoyed by other parcels in the same zone district, and would cause the applicant unnecessary hardship or practical difficulty. In determining whether an applicant's rights would be deprived, the board shall consider' whether either of the following conditions apply: ---There are special conditions and circumstances which are unique to the parcel, building or structure, which are not applicable to other parcels, structures, or buildings in the same zone district and which do not result from the actions of the applicant, or --- Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Community Plan and the temlS of this title to other parcels, buildings, or structures in the same zone district. In your case, the Board was asked to uphold the authority of the Engineering Department with respect to the red tag of the fence in question. Mr. Richard Golding, a City Engineer, stated emphatically that his department was not questioning the integrity of the ,... .........- applicant but rather the fact that a lack of knowledge of the permitting process lead to the current situation. It would appear to me that there was clearly a breakdown in communication between your representative and multiple departments which must sign off on these permits. Without getting into the specifics of the discussions that occurred at the variance request meeting, the Board was reminded by David Hoeffer, the assistant City Attorney, that the only issue the board was to consider was whether or not the engineering department abused its discretion on not granting an encroachment license. We, as a board, determined 4 to I that they did not abuse their authority. Please accept my apology on behalf of the Board of Adjustment if anything was said during deliberations that were offensive to you. This was a particularly difficult case in that had we been asked to grant a variance for a fence, given the circumstances, we probably would have found cause and voted affirmatively. However, the City Attorney was insistent that we only consider whether the Engineering department exceeded its authority. Please do not hesitate to call me with any further questions you may have. ~~yc~ eaQ Chairman, Aspen Board of Adjustment -. RESOLUTION NO. 02 Series of 2003 ~.~ A RESOLUTION OF THE BOARD OF ADJUSTMENT OF THE CITY OF ASPEN UPHOLDING A DECISION BY THE CITY ENGINEER AND DENYING AN APPEAL OF THE ADMINISTRATIVE DECISION IN CASE NUMBER 03-02 RELATING TO PROPERTY IN THE CITY OF ASPEN WITH AN ADDRESS OF 707 WEST NORTH STREET, BLOCK 14, LOTS G, H & I, CITY AND TOWNSITE OF ASPEN. WHEREAS, Jeff and Molly Gorsuch submitted an appeal of a decision by the City Engineering, dated May 1, 2003 to the Board of Adjustment as outlined in Section 2l.04.050(b); and WHEREAS, the appeal is of a decision by the City of Aspen Engineering Department denying an encroachment license for a fence at 707 West North Street. WHEREAS, this matter came on for hearing before the Board of " Adjustment on June 5, 2003 where full deliberations and consideration of the evidence and testimony was presented. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF THE CITY OF ASPEN, COLORADO: Section 1. Findings of Fact. The Board of Adjustment makes the following findings of fact: 1. A development application for a variance was initiated by: Jeff and Molly Gorsuch on May 1, 2003 for property with a street address of 707 West North Street, Aspen, Colorado. Section 2. Decision Upheld. The Board of Adjustment does hereby deny the appeal of an administrative decision by the City of Aspen Engineering Department denying an encroachment license for a fence at 707 West North Street per Section 2l.04.050(b) of the Aspen Municipal Code by a 4 to 1 vote. 11\\\11 \\1111 \\111\\ 111\\11111111 :;~~~~:t ~ 1 : 50A SILVIA DAVIS PITKIN COUNTY CD R 11.00 APPROV~AS TO FORM CitO:ney) ~ INTRODUCED, READ AND ADOPTED by the Board of Adjustment of the City of Aspe on the _,5th day of June 2003. C I, the undersigned duly appointed and acting Deputy City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the Board of Adjustment of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. ~~ D&-ty City Cler " 1111111111111111111111 :;~~j~:t ~ 1:50A SILVIR ORVIS PITKIN COUNTY CO R 11.00 1 ",'" -~ CITY OF ASPEN B6....RD OF ADJUSTMENT - Mbr1Ites - June 05, 2003 which in theory the structure should have been built to conformity. The board commented that this building was a "Hans Cantrup special". Stafffelt that standards 2 and 3 were not met and that staff could not find a hardship. The retaining walls came out to the property line. Howard DeLuca asked if the awnings were part of the original design or were they added afterwards. Scherer replied that he did not know because he purchased the house in February of2000 with the awnings in place. Oates replied that there was no evidence of the awnings in the building plans file. DeLuca asked if there would be a grate for water collection and diversion. Scherer eXplained that the driveways have never leaked and had a grate system laterally across, which carries the water to a downspout with ejector pumps downstairs. Janusz stated that there was a 2- inch drain at the bottom of the existing door basin, which will be doubled. There were no public comments. Mark Hesselschwerdt said that he did not have problem with the solution to making this thing work better with a semi-shed gabled end roof over the 2 entrances, which would be something permanent to catch the snow and direct it away from the building. Greg Hughes said that covering the whole area wasn't exactly what he would have chosen as a solution. Rick Head noted that the request was right on the zero lot line on the outside ofthe north side of the building. DeLuca said that there was no alternative way to stop the water from getting down there but there probably was no other option but to increase the non-conformity with the roof coverings. Bill Murphy said that the buttresses stick out and there did not appear to be another option; he had no problem with it. Charles Paterson said there was an obvious problem and felt that the solution was very good. MOTION: Charles Paterson moved to approve the variance for a ten (J 0) foot front yard setback variance for the construction of a roof over an existing entryway at 327 and 329 Gilbert Street, Case #03-01,jinding that the criteria have been met. Mark Hesselschwerdt seconded. Roll call vote: DeLuca, yes; Murphy, yes; Hesselschwerdt, yes; Paterson, yes; Head, no. APPROVED 4-1. PUBLIC HEARING: Case # 03-02 - 707 West North -Jeff & Molly Gorsuch Rick Head opened the public hearing for 707 West North, Jeff Gorsuch, for an appeal of determination by the City Engineer. Representing Mr. Gorsuch was Joe Krabacher and Mitch Haas. Rick Head asked if notice was needed. David Hoefer stated that this was publicly noticed but they did not need to post anything. Hoefer stated that this was a bit of an unusual procedure, which we did not see very often. 2 / CITY OF ASPEN B6..JU> OF ADJUSTMENT - MhrQtes - June 05, 2003 The burden of proof is on the applicant to basically prove to the board that they comply; they get to go first in terms of presentation and then staffwill do a presentation. Mitch Haas, representative for the applicant, explained Jeff and Molly Gorsuch were out of town but wanted to go forward. Haas said the background on the property was a misunderstanding or communication breakdown; the Gorsuch's applied for an encroachment license to replace an existing fence at the time that they were building this house in 200 I. In the original application for an encroachment license they asked for landscaping and a fence in the right-of-way. The city was not in favor of the landscaping with boulders but the Gorsuchs met on site with Aaron Reed, City Forester, from the Parks Department who told them that his opinion was they should use the existing fence postholes and place the fence there. Haas said based on that, right or wrong they assumed that it was okay to place the fence and they built it back in the same fence post holes from the fence that was removed. Haas said they thought that they were fine until they got a zoning compliance letter saying that they were out of compliance and their encroachment license had been denied; they had never been issued a written or verbal denial. Haas said that this was clearly a misunderstanding; the Grouchs are upstanding citizens; they went through a long process and followed all the rules up and to that point with building permits for the house and Planning and Zoning for a height and design variance, which was granted. Haas stated this was an honest mistake based on a misunderstanding, no blame, but that shouldn't have any bearing on whether or not this encroachment license should be issued or with a sunset date on the encroachment license. Haas said the standards were different than this board usually deals with; it wasn't a straight hardship case. Joe Krabacher clarified that the Gorsuchs met with Richard from Engineering and discussed the location that was filed for the fence; the city's position was that they were told that they couldn't put the fence or landscaping there; what he heard was the landscaping was not approved but he didn't know that the fence was not approved and there was noting in writing until the enforcement notice from Sarah in October, after they built the fence in summer of 2002. Krabacher stated that at this point they were trying to get an approval for this revocable encroachment license, which by its nature can be revoked at any time. Haas said they were asking for a normal encroachment license. The standards for this type of review were (I) whether the requested encroachment is the minimum encroachment necessary to make possible the reasonable use of the parcel, building or structure in question. Haas said that the reasonable use of land was the ability to fence it in, it was a common use and certainly reasonable all over America that people were allowed to fence in their yards. Haas utilized a map 3 , /' . CITY OF ASPEN B6-RD OF ADJUSTMENT - Ml1rntes - June 05, 2003 showing the property and the replaced fence following about half of the original encroachment with trees in the right-of-way and on the property line. Haas said that they were told the only way that they could fence the trees was outside of the drip line, which was some 10-12 feet in the property making this portion of the property virtually unusable or following underneath the drip lines along the property line in a manner where new fence posts would have to be hand dug so that new fence postholes avoided all tree roots and pruning the trees up high enough so that the fence could pass below. Haas said the fence line would probably meander around because the other way would require an encroachment license. Haas said that it was unreasonable to say that they were denied use of all 9000 square feet of their lot because of the city trees encroaching onto their property and the city didn't need an encroachment license from the Gorsuchs or an easement from the Gorsuchs to maintain their trees so it would be unreasonable to say that now because we don't need from you we're going to deny you use of this portion of your property. It seems in fairness would be to allow the same fence line that's been here forever and allow you to fence in these trees and it doesn't deny the public any enjoyment of these 40-50 foot tall trees. Mitch Haas said that next standard for this review was whether denial of this encroachment would cause the applicant unnecessary hardship or practical difficulty. Haas explained without the encroachment it becomes difficult to replace this fence and the trees could not be removed. Joe Krabacher explained the P&Z process that the Gorsuchs went through for design guidelines. Haas further explained that the trees were to be saved, this was an issue of fairness to the Gorsuch family because they encroached on their property and because the city will not issue a tree removal permit; he said it seems fair that the fence line could be put out there rather than forfeiting the right to all of this property because the city found the trees to close to the property line way back when. Mitch Haas said that the final standard for this review was whether there are special circumstances or conditions which are unique to the parcel, building, or structure in question which are not applicable to other parcels, buildings, or structures. Haas said that again it was the same issue they were once considered a unique situation and granted a variance and nothing has changed. Haas said that a referral from the Parks Department that said "after review by the city fosterer it determined that the proposed location of the fence is more appropriate than putting it on the property line, we would like to allow for placement of the fence in the public right-of-way". Mitch Haas said if they were forced to put the fence on the property line the fence would end up damaging the trees. Joe Krabacher said that there was a misunderstanding, as he understood, the Gorsuchs met with Aaron who said it was a good idea to use the existing postholes, which was not the proper conclusion but it was the one he did. David Hoefer noted with the provision that 4 m ~_._..,,___,-... ~__~......~"...^'______~ CITY OF ASPEN B6....,RI) OF ADJUSTMENT - Mllrt'ltes - June 05, 2003 Aaron did not have authority. Joe Krabacher responded that Aaron was not the city engineer. Mitch Haas stated that it's been brought up that there are options such as placing the fence inside the property line, which again would be some 6-12 feet inside the property line and would deny them use of this whole section ofthe property or that they can hand dig shallow fencing, which again avoiding the root system, not following the property line and possibly damaging the trees anyway. Haas said those options have been considered not viable because they are a practical difficulty when there are existing fence postholes that have been there for at least forty years that can be reused and allow a reasonable use of the property and would not interfere with the public's use of the right-of-way; the street was 20 or so feet from the property line between the street there was a gravel area for some parking and landscaping and a ditch before the fence. Haas said that the city could always revoke the encroachment license without cause, so this wasn't a precedent issue but staff felt that it could be a concern and he understood why they thought that but there was no standard in reviewing it. The standard was what was in the best interest of the city.' Haas said that all 3 standards were met with no harm in granting the encroachment because it could always be revoked. Rick Head asked if this was a historic building. Sarah Oates responded the existing building at the time was demolished and not on the historic list. Charles Paterson said it was the old Fred Iselin building. Sarah Oates introduced Richard Goulding from the City Engineering Department. Richard Goulding stated that they were not questioning the integrity of the Gorsuchs on this; it was probably the lack of knowledge on the permitting process that lead to this, if this had gone the right way they would have an encroachment license, a fence permit, variance from the Design Review Committee because of the height of the fence and a right-of-way permit to dig in the right-of-way were required. Goulding noted multiple departments sign off on these permits; they have none of these permits. Goulding stated the Gorsuchs were never told by the Engineering Department that they could have a fence; it looks like a breakdown in communication. Goulding said that as Mitch pointed out what led us here really isn't the issue. Goulding said the issue was if these standards were being met. Goulding said that reasonable use of the parcel was with the building of a 3,600 square foot house; the unnecessary hardship could be accomplished by hand digging the fence posts. Goulding used a site map to point out where new fence posts were installed last summer in one area around the trees, which shows that what the city was asking for can be accomplished. Goulding provided pictures showing the fence posts in and around the trees. Goulding said that he spoke to Aaron Reed about putting the fence on the or near the property line with smaller 5 CITY OF ASPEN B6-tID OF ADJUSTMENT - Milrl'Ites - June 05, 2003 hand dug fence posts. Goulding said that he didn't think that the Gorsuchs had an unnecessary hardship but there were options that were being rejected by the applicant. Goulding said that the 3rd standard was whether this was a unique parcel; he said that this property was not unique other than the trees may be old but there were other properties in town with the same situation. Goulding said the criteria for granting an encroachment license was the benefit to the city; he did not think that sections of city property fenced off for private use was a benefit to the city. Goulding said that when a new building was built the property needs to come up to code and the historic condition was not valid any longer. Goulding said fencing off public land does not appear to be a public amenity. Goulding stated the 3 rd standard was that of a construction encroachment, which was issued to the Gorsuchs because it was November or December when the matter came up and was issued to resolve this matter by spring. Goulding stated that he did not feel that the Gorsuchs have met the standards that were being reviewed. Rick Head asked about the height of the fence. Sarah Oates replied per the Residential Design Standards anything forward of the front most fa<;ade of the house cannot be more than 42 inches in height; this fence was about 5 feet. Haas stated that it was 48 inches, so it was 6 inches over the limit on the alley corner not the street corner. Oates answered that it was the other side and it wouldn't comply with the Residential Design Standards. Rick Head asked the reasoning behind this code standard. Oates responded that the Residential Design Standards were to create a relationship with the pedestrian. Howard DeLuca said that it was stated that the trees were planted by the city; he asked if this statement was based on fact. Haas replied that they were in the city right-of-way. DeLuca stated that he owned a property like this with the same tree structure and he ran his fence on the inside ofthe trees when he got his fence permit. DeLuca said it didn't kill any trees and there were a lot of roots. Haas replied that it can be done but that wasn't the standard and this would be an unnecessary hardship or a practical difficulty. Haas said they know that the existing fence post holes are known not to damage the trees and can be reused; it was unnecessary to dig new fence post holes and it was a practical difficulty to go through there and hand dig new ones when there were ones that can be used. DeLuca said that he had a similar situation where there was an existing fence line and the surveyors found the property line had moved and he had to re-dig every posthole a foot away. Charles Paterson said that the secondary fence was near trees that were a lot smaller in size and the fence wasn't as close to the trees as shown on the drawing. 6 CITY OF ASPEN B{).....KI) OF ADJUSTMENT - MilrfItes - June 05, 2003 Rick Head said that his fence couldn't hold anybody in; he asked if it completely encapsulated the backyard so that kids and dogs could not get in and out. Haas said there were gates and the fence was attached to the house. Howard DeLuca asked the original intent of the right-of-way and what was it used for now. Nick Adeh responded that public rights-of-ways were used by multiple entities like pedestrian, transportation and 8 utilities, which were the main lines for providing services to the community with certain horizontal separations from each other. Nick Adeh stated that when trees, boulders or fences were placed in the rights-of-ways, it makes it impossible for the utility companies to maintain the utilities or access in emergency situations; he stated that was the purpose for the use of the public rights-of-ways. Nick Adeh explained the different types of utilities that could be contained in the rights-of-ways. Howard DeLuca spoke about the history of the utilities rights-of-ways being changed over the years. Greg Hughes asked how much of the city property was being fenced. Joe Krabacher replied it was 40 feet by 8 feet. Hughes asked if the trees were located on city property. Krabacher replied it depended on what part of the tree you were talking about; the root system goes on the subject property and in the public right- of-way and some of the trunks are on the property line or a foot from the property line; the branches were on the property. Krabacher noted that the code section read the Board of Adjustment shall utilize the following standards but it doesn't say these standards must be met and it doesn't say A, Band C. Mitch Haas stated that once their kids were grown up, they would happily take the fence out. Nick Adeh stated a public right-of-way was granted not for a public playground for the kids, it was primarily for utilities, transportation, transit and pedestrian corridors. Adeh said that there were alternatives to fences to protect the trees, hedges could be planted between the trees, evergreens other plantings dense enough on the property line to keep kids safe. Adeh said that open space was one of the greatest things to promote here and there were other ways to keep the open space and create those physical barriers enhancing the property rather than putting solid fence walls in. Adeh stated that there were functional uses of the rights-of- ways and the needs of the growing community should be considered. Sarah Oates stated that there was a different set of standards for the Residential Design Standards; there was a difference between excavation for a building foundation and hand digging fence posts in terms of whether there were unique circumstances to the property and the impact that each would have on the trees. Rick Head inquired about what the city forester, Aaron Reed, thinking that the solution of replacing the existing postholes was reasonable. Oates replied that he 7 CITY OF ASPEN B~ OF ADJUSTMENT - Mrrrutes - June 05, 2003 was a referral department for the encroachment license and does not issue the encroachment license. Goulding said he had the same conversation and he said that with regards to the trees it would be most beneficial to the trees to use the existing postholes, but he was one of many referrals. Haas said that in this case this was the most reasonable way and logical place to put the fence in the existing postholes in the right-of-way and they don't condone everyone be granted an encroachment license. Haas cited many non-historic encroachment licenses. David Hoefer stated that the criteria was in the appeals section for this board to make a decision in the following manner: The decision of Engineering shall not be reversed or modified unless (a) there was a denial of due process (b) the administrative body exceeded it's jurisdiction or (c) it abused its discretion. Hoefer said that Joe Krabacher and he agree the issue the board was looking at was did engineering abuse its discretion in not granting the encroachment. Head stated that was what the board had to come up with. Haas and Krabacher disagreed. Hoefer provided the criteria for the appeal. Mark Hesselschwerdt stated that he has done many fences over the years mid the idea of using old fence postholes was not appropriate at all because an old rotten 4" by 4" that used to hold up wire was now plugged in with new 8" by 8"'s that were probably set in concrete; there was no way that new fence posts were going into those old fence postholes, so that criteria is inappropriate. Hesselschwerdt noted that more money was spent on counsel and representation than moving the fence. Hesselschwerdt said that if they couldn't put the fence on their property line then they could put it someplace else on their own property. Hesselschwerdt said that the representative's argument that the applicant didn't have full use of their yard because they don't get to fence the whole thing was full of holes. Hesselschwerdt said it bolstered the fact that the Gorsuchs wanted 8 feet of city property rather than give up 3 or 4 feet of their prpoerty to satisfy a straight fence. Howard DeLuca said that the number one thing was that they applied for their encroachment permit and didn't get it and put the fence in anyway; whether there was misinformation or not someone along the way must have realized that if you don't have a piece of paper giving you the right to do it you shouldn't do it. DeLuca said that the trees were planted probably by the original owners and under the guidelines you inherit whatever was on the property; you cannot create your own difficulty or hardship. DeLuca said the city was not creating a hardship by telling them to put the fence on their property. DeLuca said that he had 40 and 50 foot trees on his property and he hand dug postholes for his fence. DeLuca said that in this case it looked like the applicant had a choice between sacrificing 4 feet of their property or gain 8 feet of city property and they made the choice to take the 8 feet of city property without permission. 8 CITY OF ASPEN B<>-RD OF ADJUSTMENT - MhrUtes - June 05, 2003 Rick Head reminded the board that their job was to determine if the city engineering department abused their office in anyway in making this determination. David Hoefer noted the applicant's representatives were not agreeing with that approach so the comments could be based on the criteria in the staff report. Greg Hughes said that this was the use of city property for their convenience rather than loosing a few feet to dig near the trees. Bill Murphy said that his understanding was that engineering gave them a temporary permit so they didn't have the hardship of tearing this fence down in the winter. Murphy said that they could put up another fence and use their yard just fine without a problem. Charlie Paterson stated concern with the city forester's recommendation in as much as the trees could be damaged with new postholes; he said that there was a section that said, "when do I need a permit from city engineering department" it says "if you plan a construction activity in the city public right-of-way easement or even work adjacent to these areas that might impact or restrict the public use of it, whether occasionally or regularly". Paterson said that if the fence remained in place would in any way restrict the public use of that area; it doesn't affect the parking; there was ditch on the other side of the fence and a grass strip. Paterson said that he had a problem because the code does not prohibit fences or landscaping in the right-of-way it merely requires permission and approval from the city engineer; he said there was a case of obvious miscommunication from the start and the Gorsuchs had a practical difficulty in digging new fence postholes in the area between the trees or on the inside of the property. Paterson said that across the alley from this property there was a hedge that was even further out than the fence and a patio with a dining table in the city right-of-way, which those people were using. Paterson said that he would be inclined to grant this because the city could revoke it at any time. Hesse1schwerdt noted that this fence was put in last summer without any permits or approvals; he said it was one of those deal that it was easier to ask for forgiveness than permission. Hesselschwerdt said that they have come before the board because the city said please this was not the appropriate spot for you fence; you are 8 feet out from your property and they wanted to run it past another board. DeLuca stated that when he put his fence in it was the same exact situation; he said that he could have gone around without anyone knowing it was off the property but he went for a permit, which required a surveyor. DeLuca said that he was 4 feet 9 r---', CITY OF ASPEN B()...dU) OF ADJUSTMENT - Min1ites - June 05, 2003 inside the property line. DeLuca said that you can't build fences without permits and not follow the rules. Paterson said that he didn't feel that they (the applicant) felt they could get away with it and the city can revoke it at any time. Rick Head stated that he leaned towards the arguments presented by Mark and Howard because they built the fence without a permit. Head noted this was the only fence that encroached on the right-of-way; he said that he was agreeing with . . ,. . city engmeer s mterpretatlOn. Joe Krabacher said that it was unfair to make conclusions without the facts before you; they applied for the permit, they were never denied. Rick Head responded they never got the permit. Sarah Oates clarified that they did not apply for a fence permit; they applied for an encroachment license. Krabacher said that the Gorsuchs went through the whole process; got a building permit for the house, they moved the house over in order to save those trees and that was considered to be a unique situation but not unique enough to qualify here, there was a slight difference in terms of the standards but the city already has made a finding offact with respect to this specific property that that's a unique feature. Krabacker said that he objected to impugning the character of these people as if they tried to pull a fast one. Head replied that was not the case. Krabacher provided pictures of 18-20 houses in the west end with fences in violation. MOTION: Mark Hesselschwerdt moved to approve the request to overturn a decision by the City Engineering Department and grant an encroachment license for afence located at 707 West North with thefollowing conditions: (1) the fence must be brought into conformance with the Residential Design Standards or a variance must be sought at the Design Review Appeals Committee (2) A fence permit must be submitted based on Condition 1 above. Seconded by Bill Murphy. Vote: Paterson, yes; DeLuca, no; Murphy, no, no; Head, no. DENIED 4-1. Meeting adjourned at 5:40 p.m. Jackie Lothian, Deputy City Clerk 10 I..... '- ......., '-' WARREN SHERIDAN 333 LOGAN STREET. SUITE 215 DENVER. COLORADO 80203-4089 FAX: 303-778.0905 TEL: 303-778-0900 ~ ~lpinr LAND, OIL & GAS PROPERTIES alpineland@attglobal.net July I, 2003 Aspen Board of Adjustments 130 S. Galena Street Aspen, CO 81611 Dear Ladies and Gentlemen, My wife and I reside at 700 W. Smuggler. It has come to our attention that the Board has prevailed upon our neighbors, Jeff and Molly Gorsuch who reside at 707 W. North Street, to tear down the east line of the fence they recently built around their property because it slightly invades the City's Sixth Street easement. For the record, we consider both their new house and the fence to be credits to the neighborhood and the City. While you are doubtless correct about the encroachment, it occurs to us that the Board would gain respect if it were to excuse this matter until and unless the easement is ever fully utilized. This would obviate the need to incur unnecessary, and remarkably large, expense and allow the Gorsuch's to enjoy their yard with no hardship or inconvenience for the City. They would be pleased to enter into an agreement to move the fence upon notice at some time in the future when the City elects to develop the easement due to need. This appeal is tendered as a matter of practicality and aesthetics. Please be so kind and reasonable as to accommodate this request. Thanks very much for giving this matter your thoughtful consideration. Sincerely, v(~ ~~.L~ Warren Sheridan j .. (,> " ~,-::-,::l:';"~_,- ..,. .,1~ T~ ~ ," J' ....:, , ,.~, . _ (::~ -' i c.".'-" '..."",.','. /. : > ,( , )/f:-'i}~:~ 1/';,: -};1 ! ~j o ~ . ". ~~,-'"~-:,-';':.~~- ...>;L '\.-; ,. ~~iQ ".. 0(. . ~-;~w~~~~;;.~ .;. ~ ~ ~~;$':'~';"'-~~' ~'- _ '-"" ~ - ::~:J:1b ~;~~~ttct, b<~) 12.1 o o .~H. 't .1t,. .";~r~ .}:i- of'I":~"V o o - o o -.4 I ~_ .:. -qth St' e.,,,&t' of 'II - tJor.h ~r l-lu9~" '* .((.nee (,'3 n ....., _ - o~ H. '+~S"', ond. W. 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"f'OI~"r "-'V,i,,~ ..~ ';":-.'~""""::""'f..~~~~~;t~';i~~.; ....:...,, , 03 -o~ "''',,", '" ""' ..., MEMORANDUM TO: Board of Adjustment THRU: Nick Adeh, City Engineer FROM: Richard Goulding, Project Engineer Sarah Oates, Zoning Officer RE: 707 West North Street - Gorsuch Residence DATE: June 5, 2003 SUMMARY: Jeff and Molly Gorsuch applied for a revocable encroachment license to place boulders, flowers and a fence in the public ROW along 6th Street adjacent to their property in May 2002. The initial encroachment was denied by a number of departments. Mr. Gorsuch subsequently reapplied on June 11 th to have only the fence part of the encroachment approved in light of additional information provided by Aaron Reed, the City Forester, regarding the possible impact that new fence posts may have on nearby mature trees. The departments that denied the initial encroachment did not change their decision with the second application. No license was ever issued nor were the Gorsuchs ever given any indication that they could place a fence in the public ROW by the Engineering Department, which oversees the issuance of these licenses. The Gorsuchs built the fence mid-summer 2002 without an encroachment license. The Community Development Engineer has stated the fence had not been installed at the time of his Certificate of Occupancy inspection. James Lindt, who was the staff member who did the zoning inspection, cannot recall if the fence had been installed at the time of his inspection. The Community Development Department did not receive nor issue a fence permit application, as required per the Municipal Code. Further, the fence does not comply with the height requirements outlined in the Residential Design Standards. The fence encloses an area approximately 40' x 8' attached the Gorsuch residence. To build this fence the Gorsuchs should have obtained a fence permit, a revocable encroachment license and a ROW permit to construct in the public ROW along with a variance from the Design Review Appeals Committee for the height of the fence. The applicant only applied for an encroachment license but no permits were ever issued. Sarah Oates issued a written notice that the fence was illegally constructed in October 2002 and that it was to be removed. After a number of meetings with the Gorsuchs and their representatives, which spanned until November 2002, the Gorsuchs reapplied to the City for a license for their fence. This was the third application for which the Gorsuchs have to date been only charged one fee. The application was again denied. The City Engineer, in a show of good faith granted a temporary encroachment license to the Gorsuchs due to worsening weather and "......." "- impracticality of construction in such weather until this matter was brought before this board as desired by the applicant. APPLICANT: Jeff and Molly Gorsuch LOCATION: 707 West North Street, Aspen, CO, Block 14, Lots G, H & I REVIEW STANDARDS AND STAFF EVALUATION: Pursuant to Section 21.04.50 of the Municipal Code, in order to authorize a overturning of the City Engineer's decision not to grant an encroachment license for a fence in the public ROW for the above referenced property the Board of Adjustment shall make a finding that the following three (3) circumstances exist: 1. Standard: Whether the requested encroachment is the minimum encroachment necessary to make possible the reasonable use of the parcel, building or structure in question: Response: The applicant is already making reasonable use of the parcel by the building of a 3637.5 square foot residence and the full use of their 9000 square foot lot. 2. Standard: Whether denial of the encroachment would cause unnecessary hardship or practical difficulty. Response: The applicant is not suffering unnecessary hardship by the denial of this encroachment. The applicant wishes to fence in both their children and dogs. Alternatives such as placing the fence inside the tree line or use of a hand dug shallow foundation fencing system were rejected by the applicant as impractical. Hardship caused by non-erecting of a fence is due to a one-option train of thought on the part of the applicant and their representatives. The City Forester Aaron Reed was consulted on this in a prior meeting and expressed that the trees would not be damaged by the above alternatives. 3. Standard: Whether there are special circumstances or conditions which are unique to the parcel, building, or structure in question which are not applicable to other parcels, buildings or structures. Response: If the above criteria is met by this particular parcel, any parcel with mature trees on their property line or in the general area would then be fulfill these criteria. This is not a unique parcel building or structure. -. - - ALTERNATIVES: The Board of Adjustment may consider any of the following alternatives: . Approve the encroachment as requested. . Approve the encroachment with conditions. . Table action to request further information be provided by the applicants or interested parties. . Deny the encroachment finding that the review standards are not met. RECOMMENDATION: Staff recommends that the request for the issuance of an encroachment license so that a private residence can fence of an area of City property be denied. The applicant dose not meet any of the above standards to warrant overtnrning the City Engineer decision which was supported by Commnnity Development Department. The Parks Department did not want the trees damaged but is willing to suggest alternatives to the large posts that are being pursued by the applicant. Staff further recommends the fence be removed by July 1, 2003. RECOMMENDED MOTION: (All motions are worded in the affirmative) "I move to approve the request to overturn a decision by the City Engineering and grant an encroachment license for the fence located at 707 West North Street with the following conditions: 1. The fence must be brought into conformance with the Residential Design Standards or a variance must be sought at the Design Review Appeals Committee. 2. A fence permit must be submitted based on Condition 1 above." - - RESOLUTION NO. 02 Series of 2003 A RESOLUTION OF THE BOARD OF ADJUSTMENT OF THE CITY OF ASPEN OVERTURNING A DECISION BY THE CITY ENGINEER AND GRANT AN ENCROACHMENT LICENSE WITH CONDITIONS IN CASE NUMBER 03-02 RELATING TO PROPERTY IN THE CITY OF ASPEN WITH AN ADDRESS OF 707 WEST NORTH STREET, BLOCK l4, LOTS G, H & I, CITY AND TOWNSITE OF ASPEN. WHEREAS, Jeff and Molly Gorsuch submitted an appeal of a decision by the City Engineering, dated May 1, 2003 to the Board of Adjustment as outlined in Section 21.04.050(b); and WHEREAS, this matter came on for hearing before the Board of Adjustment on June 5, 2003 where full deliberations and consideration of the evidence and testimony was presented. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF THE CITY OF ASPEN, COLORADO: Section 1. Findings of Fact. The Board of Adjustment makes the following findings of fact: l. A development application for a variance was initiated by: Jeff and Molly Gorsuch on May 1, 2003 for property with a street address of 707 West North Street, Aspen, Colorado. 2. The requested encroachment is the minimum encroachment necessary to make possible the reasonable use of the parcel, building or structure in question. 3. The denial of the encroachment would cause unnecessary hardship or practical difficulty. 4. There are special circumstances or conditions which are unique to the parcel, building, or structure in question which are not applicable to other parcels, buildings or structures. - Section 2. D~sion Overturned. " The Board of Adjustment does hereby grant the applicant an encroachment license for a fence at 707 West North Street per Section 21.04.050(b) of the Aspen Municipal Code with the following conditions by a to vote: 1. The fence must be brought into conformance with the Residential Design Standards or a variance must be sought at the Design Review Appeals Committee. 2. A fence permit must be submitted based on Condition 1 above. APPROVED AS TO FORM City Attorney INTRODUCED, READ AND ADOPTED by the Board of Adjustment of the City of Aspen on the 5th day of June 2003. Chairperson I, the undersigned duly appointed and acting Deputy City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the Board of Adjustment of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Deputy City Clerk 2 ,.... - May 4, 2003 Aspen Board of Adjustments Aspen City Hall 130 S. Galena St. Aspen, CO 81611 RE: Gorsuch Fence Dear Members of the Board of Adjustments: We are writing this letter to you to voice our support of the Gorsuch's fence that we understand is encroaching on the 6th Street right-of-way. Their fence has historically been in that same location. It does not inhibit pedestrian traffic along the street or damage any of the beautiful trees along 6th Street. Weare concerned that if the fence were moved to their property line that the trees might suffer. The current fence in place is a great improvement to the fence that was there before the Gorsuchs rebuilt their house. As neighbors on North Street, we urge you to allow the Gorsuchs to retain their fence in its existing location. ~-?~ ~~ Ely~e Elli~t & Jeremy Bernstein 610 W. North St. i Applicant: Representatives: ;' " ...."" , f CITY OF ASPEN BOARD OF ADJUSTMENT APPEAL FOR GORSUCH FENCE ENCROACHMENT INTO PUBLIC RIGHT-OF-WAY Jeff and Molly Gorsuch 707 West North Street Aspen, CO 81611 Mitch Haas, AICP Haas Land Planning, LLC 201 North Mill Street, Suite 108 Aspen, CO 81611 (970) 925-7819 B. Joseph Krabacher, Esq. Diana L. Godwin, Esq. Krabacher & Sanders, P.C. 201 North Mill Street, Suite 201 Aspen, CO 81611 (970) 925-6300 /, ....... ~ ,.., TABLE OF CONTENTS I. Introduction II. Background III. Review Standards: Fence Encroachment into Right-o.fWay N. Conclusion APPENDICES A. Minimum Submission Contents B. Existing Conditions C. Timeline for and Summary of Denial D. Analysis Of City's Reasoning Behind Denial Of The Application LIST OF EXHIBITS Exhibit 1 Certificate of Ownership Exhibit 2 Authorization to Represent Exhibit 3 Site Improvement Survey Exhibit 4 Certificate of Occupancy Exhibit 5 Right-O.fWay Permit Requirements, Policy 205 Exhibit 6 Engineering Department Guidance "When do I need a Permit from City Engineering Department?" C:lMy Documents/City Applications/Gorsuch Appendices ,-.. "- '.. ... I. INTRODUCTION The following Appeal requests that the Board of Adjustment modifY the decision ofthe City Engineer with regard to an expiration date imposed on an issued Revocable Encroachment License. The applicants are Jeff and Molly Gorsuch (hereinafter "Gorsuchs"), who reside at 707 West North Street in Aspen. The City Engineer has issued a Revocable Encroachment License for a fence that encroaches approximately eight (8) feet into the City of Aspen Right-of-Way on North 6th Street. II. BACKGROUND On or about May 22, 2002, the Gorsuchs filed an application for an Encroachment License for approval of the proposed encroachment of a fence and landscaping into the City of Aspen Right of Way for North 6th Street adjacent to their property. The primary purpose of the encroachment application was and is to avoid killing or otherwise damaging five mature trees located on or immediately adjacent to the Gorsuchs' property line. As can be seen in the Gorsuch Residence Site Plan attached as Exhibit 3 hereto, the Gorsuchs' eastern property line is located approximately 30 feet from the edge of the pavement on North 6th Street. On the property line stand five mature and healthy trees. A gravel setback for parking extends roughly five feet in from the pavement, and landscaping extends in roughly another 12-15 feet to an irrigation ditch, before another three to four feet brings one to an old fence line, which was placed in the public right-of-way, approximately six feet outside ofthe Gorsuch property line. Historically, a wire and wood fence between three and one-half and five and one-half feet tall was located in the right-of-way, just outside the mature trees. This fence line is depicted in Exhibit 3 as the "5'5" high wood/wire fence." In the process of remodeling and re-designing their residence in 2001-2002, the Gorsuchs decided to replace the deteriorated wood and wire fence with a new fence. Thus, the Gorsuchs filed for the Encroachment License shortly before the Certificate of Occupancy was issued on the house. The plans used for the building permit and approved by the City showed the existing wire/wood fence in the right-of-way. In their Encroachment License Application, the Gorsuchs proposed re-building a portion of the fence in the right-of-way and modi tying the fence to extend for approximately half of its original distance in the right of way before curving back onto the Gorsuchs' property. Wildflowers and boulders were also proposed in the right-of-way, but that portion of the original request has since ,....., "'" "',/ GORSUCH BOARD OF ADJUSTMENT APPEAL PAGE 2 been rescinded. Apparently the City would not have required removal of the existing fence in the right-of-way, but objected to the new fence being built in the same (using the same fence post holes), although abbreviated location of the old fence. The Gorsuchs were told (verbally, but not in writing) that the landscaping requests (i.e., boulders) would not be allowed but were never issued a denial, written or spoken, for the fence. Nevertheless, the Gorsuchs' original Encroachment License Application was apparently denied, but not until after the Gorsuchs, thinking that they had achieved approval for the fence, had constructed the fence in the right-of-way, as further explained in the appendices attached hereto. III. REVIEW STANDARDS: FENCE ENCROACHMENT IN RIGHT-OF-WAY In addition to the following, please review the Appendices attached hereto for a complete understanding of the appeal request and the events leading to it. Contrary the position taken by City staff that no encroachment within the right-of-way should be allowed due to the precedent it might set, the City of Aspen Municipal Code permits an encroachment into the public Right-of- Way when the criteria set forth in Section 21.04.050 are met. In fact, a great many Encroachment Licenses have and continue to be issued by the City Engineer on an almost routine basis. Section 21.04.050(a) of the Code states that, No person shall occupy, construct, place or maintain within any public right-ofway any building, structure or appurtenance,fence, tree, vegetation or other obstruction without first having obtained an encroachment license from the city engineer. ... The city engineer may specifY the terms and conditions under which any encroachment license is to be issued so as to protect the best interests of the city. All encroachment licenses granted under this section shall be revocable by the city with or without cause at any time. Before discussing the applicable standards to be used by the Board of Adjustment in determining whether to affirm, reverse or modify the decision ofthe city engineer, let us first review the above-cited language of Section 21.04.050(a) 0 fthe Code. Under the Code language, an encroachment license should be required to allow maintenance ofthe five mature trees in the right- t""'" "-" , ., GORSUCH BOARD OF ADJUSTMENT APPEAL PAGE 3 of-way. The City has opted instead for a selective reading of the Code, a reading that addresses only fences and structures. Precedent, by the way, is not an applicable standard. The only "standard," included in the cited language is direction to "protect the best interests of the city." Clearly it is in the best interests ofthe City to protect the five mature and healthy trees from damage or an urmecessary and untimely demise. The City recognizes this interest and, as such, has informed the applicants' representatives that placement ofthe fence on the property line would be prohibited. That is, if the applicant were to apply for a fence permit to locate the fence on the property line (and, thus, not need an encroachment license), the Parks Department would review the request and require the Gorsuchs to work closely with them in the installation of the fence; in doing so, the fence post holes would need to be hand-dug and located such that minimum damage to the tree root systems would occur. This means the fence would not follow the property line, but would more likely meander on and inside of the property line (but not outside the property line as that would require an encroachment license) so as to avoid the tree roots. Doing this would also require pruning (removal) of the tree branches to a sufficient height to allow the fence to pass below. The applicants are left to conclude that the city believes this "solution" would be a better precedent and better "protect the best interests of the city" than would issuance of an encroachment license to allow the applicant to reuse the existing fence alignment and post holes for a fence with a shorter length than that of the preexisting condition. Never mind the fact that the fence line resides some twenty-one feet from the edge of pavement and behind an irrigation ditch, a location for which the public has no practical use. Allowing the fence to continue to exist in this location will have no measurable adverse affect on the "best interests of the city." Requiring the situation described above would, however, negatively impact the best interests of the city with regard to tree preservation efforts. Nevertheless, the city engineer has seen fit to set the expiration of the Revocable Encroachment License for May of2003. The City has no planned or approved improvements in the North 6th Street right-of-way that would affect or be affected by the proposed fence location. The applicants are aggrieved by the city engineer's decision and seek relief from the Board of Adjustment. """ ~ GORSUCH BOARD OF ADJUSTMENT APPEAL PAGE 4 The applicants request that the Revocable Encroachment License be issued in the same manner as virtually all other such licenses that remain in good standing; that is, the applicants desire to remove the expiration date in favor of a standard Revocable Encroachment License issued as "temporary, perpetuated until revoked by the city." The applicants recognize that this would allow the city to revoke the license with or without cause at any time, but seek only to eliminate the predetermined revocation date. The specific review criteria for the Board of Adjustment's use in determining whether to affirm, reverse or modify the decision of the city engineer, and the Gorsuchs' compliance therewith, are summarized as follows: 1) Whether the requested encroachment is the minimum encroachment necessary to make possible the reasonable use of the parcel, building or structure in question. The Gorsuchs' application proposes utilization of the pre-existing fence location and reuse of the existing post holes. City Forester Aaron Reed recommended utilizing the existing fence-post holes to minimize damage to the roots of the trees. The proposed encroachment actually decreases the previous fence encroachment, as it utilizes the existing fence posts to place the fence outside four ofthe five existing trees before cutting back into the Gorsuch property by utilizing an existing fence- post hole to create a diagonal section offence. Doing this draws the fence several feet inside of the Gorsuch property line. Reasonable use of a property includes the right to fence in the side/rear yard of such property for the sake of privacy and safety. The Gorsuchs have small children who play in their yard. The Gorsuchs desire to provide their children with this reasonable use while seeing to their safety, and the fence is necessary to ensure that the children's play does not conflict with passing traffic (or vice versa). The Gorsuchs' have requested that the fence and trees remain in place and undamaged in order to provide their children with the yard as a safe and private playing area. (2) Whether denial of the encroachment would cause the applicant unnecessary hardship or practical difficulty. The denial of the Gorsuch Application causes the Gorsuchs unnecessary hardship and/or practical difficulty because: /'., ,-"" . ,.,' GORSUCH BOARD OF ADJUSTMENT APPEAL PAGE 5 . Per the City Forester's recommendation, locating the fence along the Gorsuch property line will damage mature, healthy trees, which add value to the property, and, if they die, will be irreplaceable. Further, causing death of one or more of the trees will require mitigation pursuant to the City Code in the form of cash payment and/or replacement trees. New, immature trees will be expensive and will take years to grow back to a similar quality aesthetically and in terms of privacy, and will necessitate another encroachment application for new landscaping since the replacement trees, too, would encroach into the right-of-way. Forcing this imposition would represent both an urmecessary hardship and a practical difficulty. . As explained above, placement of the fence on the property line would be prohibited. That is, if the applicant were to apply for a fence permit to locate the fence on the property line (and, thus, not need an encroachment license), the Parks Department would review the request and require the Gorsuchs to work closely with them in the installation ofthe fence; in doing so, the fence post holes would need to be hand-dug and located such that minimum damage to the tree root systems would occur. This means the fence would not follow the property line, but would more likely meander on and inside of the property line (but not outside the property line as that would require an encroachment license) so as to avoid the tree roots. Doing this would also require pruning (removal) 0 f t he tree branches to a sufficient height to allow the fence to pass below. This situation would represent an urmecessary hardship and a practical difficulty. . Alternatively, new trees would have to be placed substantially within the Gorsuch property boundary to allow for a new fence on the property line. This would diminish the Gorsuchs' use of their own property, as either new trees (or a new fence) would have to be located at least six feet inside ofthe Gorsuch property boundary. This would represent an unnecessary hardship and a practical difficulty. The Gorsuchs' have requested that the fence and trees remain in place and undamaged in order to provide their children with a safe and private playing area. . The Gorsuchs had a grandfathered-in fence when they purchased the property. The City's denial of the re-building and slight relocation of the fence causes the Gorsuchs an unnecessary hardship because they took down the old fence in reliance upon what they thought constituted the City's approval to build a new fence (see Appendices, Timeline For And Summary Of Denial). Further, the Gorsuchs invested a significant amount of money in 1""'\ "'., GORSUCH BOARD OF ADJUSTMENT APPEAL PAGE 6 building the new fence and practical difficulty would result from requiring relocation of the fence to on or inside the property line. . The City's current position that the Gorsuch fence must be moved to the Gorsuchs' property line, regardless of its effect on the root systems of the trees stands in direct contrast to the City's guidance documents regarding trees in a right-of-way: o "Any Excavation. . . within the dripline of any trees must be detailed on the ROW permit. Applicants are encouraged to avoid excavating with in the dripline of trees and impacting the root systems of trees. " Right-Of-Way Permit Requirements, City of Aspen Engineering Department Policy 205, attached as Exhibit 5 hereto. If the City's policy is to require applicants to avoid impacting root systems of trees in the right-of-way, it does not make sense to now require the Gorsuchs to risk damaging the trees in order to avoid encroaching into the right-of-way. Prohibiting the applicants from reusing the existing fence post holes would result in an unnecessary hardship and practical difficulties. (3) Whether there are special circumstances or conditions which are unique to the parcel, building, or structure in question which are not applicable to other parcels, buildings or structures. It seems this standard was not fully considered in the decision to sunset the encroachment license in May, 2003. There are clearly special circumstances and conditions which are unique to the Gorsuch parcel and warrant issuance of a typical Revocable Encroachment License. The Gorsuchs' Application proposed replacing a historic fence in a pre-existing, historic encroachment. Further, the Gorsuchs explained, and the City Forester agreed, that building the fence on the property line would damage mature and healthy existing trees. This is demonstrated by the City of Aspen Parks Department's email correspondence stating that: ...after further review by the city forester it was determined that the proposed location of the fence is more appropriate then [sic] putting it on the property line. . . . [W]e would like to allow for the placement of the fence with in the ROW If we forced them to put the fence on the property line, like I originally thought, the fence would end up damaging the trees. The city forester would like to approve the location of the fence (as it is proposed on the landscape plan for the encroachment) in order to protect the trees located on the property line. The location of the existing trees, that there are five such trees, and the fact that there was a "'-..... " ".,,; .F "\ GORSUCH BOARD OF ADJUSTMENT APPEAL PAGE 7 pre-existing fence with post holes that can be reused combine to provide special circumstances or conditions unique to the subject site. These site-specific conditions eliminate the possibility of creating a blanket precedent that can be unilaterally applied to other properties. IV. CONCLUSION The Gorsuch Fence Encroachment application fulfills the Code provisions, which allow encroachments into the right-of-way in warranted circumstances. The requested encroachment is the minimum encroachment necessary to make possible the reasonable use of the Gorsuch properly, the existing trees, and the fence, since placement ofthe fence elsewhere would either damage or kill the healthy and mature trees or would require the Gorsuchs to place the fence substantially inside their property line to avoid damaging the trees. Further, the encroachment is not a "new" encroachment, but a minor, less impinging modification of an existing fence encroachment. Denial of the encroachment would cause the Gorsuchs urmecessary hardship and/or practical difficulty for these same reasons. Finally, the aforementioned conditions constitute special circumstances or site- specific conditions unique to the Gorsuch property, and which are not applicable to other parcels, buildings or structures. For these reasons, the Board of Adjustment should modify the city engineer's decision regarding the Gorsuch Revocable Encroachment License by removing the predetermined expiration date in favor of a standard "perpetual, temporary until revoked by the city" Encroachment License. C:/My Documents/City Applications/Gorsuch Appeal- Mitch 1'"' - .. .. APPENDICES A. Minimum Submission Contents B. Existing Conditions C. Tim elin e for and Summary of Denial D. Analysis Of City's Reasoning Behind Denial Of The Application ,'- ',,", " '....... ......, A. MINIMUM SUBMISSION CONTENTS Gorsuchs submit the following documents in compliance with the Minimum Submission Requirements. 1. Applicant's name, address and telephone number, contained within a letter signed by the applicant stating the name, address, and telephone number of the representative authorized to act on behalf of the applicant. The applicant submits, attached as Exhibit 2, an executed Authorization to Represent, containing the required information. Krabacher & Sanders, P.C., and Haas Land Planning, LLC, are specifically authorized to represent the applicants. 2. The street address and legal description of the parcel on which development is proposed to occur. The street address of the parcel is 707 West North Street, Aspen, Colorado. The site is located on the northeast corner of West North and North 6th in the City and Townsite of Aspen. The legal description of the parcel is Lots G, H and I, Block 14, City and Townsite of Aspen. 3. A disclosure of ownership of the parcel on which development IS proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel and demonstrating the owner's right to apply for the Development Application. A Certificate of Ownership, executed by B. Joseph Krabacher, representative and attorney licensed to practice law in the State of Colorado, is attached as Exhibit 1. 4. A vicinity map locating the subject parcel within the City of Aspen. A vicinity map locating the parcel within the City of Aspen is provided on the following page. Gorsuch BOA Application Appendices Page A-I ,...... ......... ,^,." 5. A site improvement survey including topography and vegetation showing the current status of the parcel certified by a registered land surveyor, licensed in the State of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not to warrant a survey document.) A site improvement survey completed by Resort Design Associates International is attached as Exhibit 3. B. EXISTING CONDITIONS. The site is located on the Northeast corner of West North Street and North 6th Street in Aspen. Its address is 707 West North Street. The Vicinity Map provided below shows the general location of the property. ,.: lllI/MI \ \ \1 !f MIl The bulk of the site is level and at grade with West North and North 6th Streets. An irrigation ditch runs roughly north to south through the right of way adjacent to the Gorsuch Property, between the eastern property line and North 6th Street. The site has some mature foliage, primarily cottonwood, along the eastern property line and the irrigation ditch. The map of Resort Designs International, attached as Exhibit 3, illustrates the site's existing vegetation and improvements, the location of a previously existing wire/wood fence, the ditch, and the location ofthe new, abbreviated fence. Gorsuch BOA Application Appendices Page A-2 ....~ -... - "'" ... C. TIMELINE FOR AND SUMMARY OF DENIAL The Gorsuchs had filed a Revocable Encroachment License application for a fence and landscaping (including boulders) in the right-of-way. The application was apparently denied by the city engineer, although no written or verbal denial was ever issued. The Gorsuchs then received a zoning enforcement letter telling them to remove the installed fence, after which the Gorsuchs held a meeting with City staff. An Encroachment License was then issued with the expiration date of May, 2003 to allow the fence to remain through the winter. This chronology is further eXplained and elaborated upon below. The Gorsuchs feel that the denial of their original Encroachment License Application arose due to conflicting messages received by the Gorsuchs from City Staff and confusion regarding the actual site layout and the approval process under the Code. It appears from Staff comments that the Staff did not initially realize that the new fence was designed to replace and reduce the encroachment of a historic, existing fence in the right-of-way, and the primary purpose of the application was to protect mature, healthy trees with roots and low-growing limbs along the property boundary. A summary of staff comments evidences mixed feelings regarding the fence encroachment and that much of the negative opinion was centered around a misconception of the purposes, history, layout and result of the encroachment, and through a misapplication of the standards of review for encroachments into a public right-of-way: . 5/29/02. Richard Goulding of the City Engineering Department sends email to (unknown Staff) requesting "objections or concerns" regarding the Gorsuch encroachment application for a 5'5" fence along 6th street, boulders, a pathway, stating, "all of this is new landscaping." Email responses to Goulding's email include: . Amy Guthrie replies that she is opposed to a "new" fence in the right of way in general. . Unknown staff replies that the fence and boulders must be at least 5 feet from edge of road base. . "Tim" (presumably Tim Ware of the Parking Office) replies to the 5/29 email stating he's "cool with it as long as the boulders are not being placed to eliminate parking spaces. " Gorsuch BOA Application Appendices Page A-3 ".., """ . Unknown staff replies with a general objection to the fence unless it is "completely on their property, Absolutely no rocks in the ROW, no native wildflowers." . Sarah Oates replies that she objects to fence and boulders unless constructed on Gorsuch property because it is "public property and one homeowner should not be entitled to exclusive use for a yard. This neighborhood needs on-street parking. . . . my recommendation is to deny [the fence and boulders]." . Amy Guthrie responds to Goulding and Oates' emails stating "I did not come down and look at the plan, but Sarah described it to me. I have never been completely clear on what your Dept's policy is for this kind of thing happening on public property, but I agree with Sarah that it is absolutely wrong. The r.o.w. should not be landscaped, fenced, bouldered or anything else unless it is done by Parks or another city dept. in the public interest." . City of Aspen Parks Department responds: "after further review by the city forester it was determined that the proposed location of the fence is more appropriate then [sic] putting it on the property line. Originally I denied all aspects of the requested encroachment. We still feel many aspects of the encroachment are not appropriate but we would like to allow for the placement of the fence with in the ROW. If we forced them to put the fence on the property line, like I originally thought, the fence would end up damaging the trees. The city forester would like to approve the location of the fence (as it is proposed on the landscape plan for the encroachment) in order to protect the trees located on the property line.." Mr. Goulding then forwarded the above recommendation from Parks to a list of staff stating the recommendation was, "based on a field visit by City Forester Aaron Reed after the original application for the fence was refused. The applicant is not pursuing the boulder [sic] any more but would like if the City would reconsider the fence, given the additional information." No responses to this email were supplied to the Gorsuchs; in fact no written or verbal denial of the Encroachment Application was ever supplied to the Gorsuchs - until after the fence had been built. Counsel for the Gorsuchs was supplied with this email correspondence in preparation for this Appeal. Gorsuch BOA Application Appendices Page A-4 "" ., ..... ,",,,J ~ City Forester Aaron Reed visited the Gorsuch property in late Mayor early June, shortly after the Gorsuchs first applied for the Encroachment License. Mr. Reed told Jeff Gorsuch that he felt the fence should be placed in the existing fence-post holes to avoid damage to the trees. Jeff Gorsuch understood this inspection and this discussion as an approval by the City to build his fence. Although Mr. Gorsuch understands that in hindsight he should have obtained a written approval, Mr. Gorsuch was not aware at the time of this requirement. Conversely, a written denial has never been issued either. Jeff Gorsuch also met with Richard Goulding shortly after Aaron Reed's site visit. Mr. Goulding indicated to Mr. Gorsuch that the boulders and wildflowers would not be permitted in the right-of-way. Mr. Goulding did not tell Mr. Gorsuch that the fence should not be built. The fence was built as planned along the old fence line, as depicted in Exhibit 3. Between June 6 and June 26, 2002, the Zoning, Engineering and Parks Department approved the issuance of certificate of occupancy for Gorsuch Building Permit (1602-2001.asr3). On July 19, 2002, the Certificate of Occupancy issued for 707 West North Street. The Certificate of Occupancy is attached as Exhibit 4 hereto and incorporated herein by reference. On October 25, 2002, the Gorsuchs received an enforcement letter from Sarah Oates indicating that the proposal to fence in a portion of right-of way was denied by City Engineering Department. Sarah further indicated that the fence must be on the Gorsuchs' property and approved by City forester Aaron Reed. Again, a written denial was never issued by the City Engineer; rather, the Gorsuchs were told over the phone only that the landscape boulders would not be allowed. Sarah's letter was the first indication that the Gorsuchs had that their Encroachment License A pplication for the fence had not been approved. The Gorsuchs met with Sarah Oates and other staff on November 4, 2002 to discuss the fence encroachment issues. On November 5, 2002, Richard Goulding emailed staff regarding the fence application refusal. He states, "In a meeting (November 4, 2002) with Parks, Zoning and Engineering the applicant presented some additional information about the location of the fence. The fence is placed in existing holes (from an old fence), which avoids damaging the root systems of large nearby trees. One of the reasons that the fence was refused prior to this was that it was felt by multiple department [sic] that the fence could be placed on the property line. It was the opinion of the City Forester that this would cause further degradation of the existing trees. Gorsuch BOA Application Appendices Page A-5 ",...., ,...., - The applicants has [sic] stated that the primary reason for this fence so [sic] that their children could play safely. The applicant stated that they would be wiling to remove the fence once their children grew to age where this would not be an issue. If this fence is reconsidered please attach all conditions pertaining to this as this is a piece of City property that is being fenced off. The size of the section is about 40'X 6'. The applicant is again meeting with City representatives at 10.30 am Tuesday November 12 to receive a decision on weather [sic] to allow the fence. Please email me comments by Monday November 11." Sarah Oates responded to this email, stating: "I thought I would put this in writing. I met with Julie Ann [Woods], Joyce [Ohlson] and James [Lindt] today to get a ComDev position on this application. Staff concurred that this application should be denied. We realize there will be some damage done to the trees but we feel that the precedent this would set is a bigger issue and one that should be avoided." The City granted a short-term encroachment license until May 1 to allow the removal ofthe fence in the spring. The fence height, as built, exceeds Code standards for height. Gorsuchs do not desire to appeal the boulder and wildflower landscaping proposal, and will lower the fence to meet City Code requirements. However, Gorsuchs desire to appeal the City Engineer's decision to have the encroachment license expire on May 1, 2003. The Gorsuchs believe that the City unfairly applied standards not set forth in the Code in determining their Application, and failed to consider the standards set forth in the Code for review of such Application, and that the Board of A djustment should overturn the denial of their Application. D. ANALYSIS OF CITY'S APPARENT REASONING BEHIND DENIAL OF THE APPLICATION The City's denial of the fence encroachment does not appear to be unanimous and appears to have been based upon incomplete and/or erroneous facts. For instance, several responses to Mr. Goulding's email indicate the proposed improvements are fine as long as they don't interfere with parking. Sarah Oates' opinion, followed by that of Amy Gorsuch BOA Application Appendices Page A-6 , . "" "'" '.- ~- Guthrie, that the fence should not be permitted because of parking and pedestrian traffic in the West End displays a misunderstanding ofthe location of the fence. A review of the Site Plan (Exhibit 3) submitted by Gorsuch showing the fence, clearly depicts the fence as being approximately 24 feet from the edge of the pavement and between 15-20 feet from the proposed 5-8 foot gravel set back for parking. Further, a pre-existing ditch cuts through the right of way approximately 3-5 feet outside of the proposed fence line, thus establishing a physical boundary which prohibits the parking of cars within several feet of the fence. Clearly, the proposed fence is so far in from the edge of the pavement that it would not interfere with parking or pedestrian traffic. Further, the existing ditch would impede parking and traffic before the fence would become an issue. Next, it is clear that the City's initial impression of the fence encroachment was mistaken in that it appears that the City staff was not informed that Gorsuch was proposing top lace the fence a long a historic fence line, using the existing post holes. Instead, the email correspondence makes it clear that City staff thought that they were approving a request for a new encroachment into the City right-of-way. Meanwhile, the fence plans show that historically the fence encroached twice as much into the City's right-of-way. The request might be more politically acceptable in the context of cutting back an existing, grand fathered-in encroachment. However, it appears that by the time Mr. Goulding informed staff of this fact, and of the City Forester's recommendation to allow the fence so as to save the trees, staff had already made up its mind, presumably based in part on a perception that the Gorsuchs were defying staff by proceeding to build their fence without staff's prior approval, which the Gorsuchs' erroneously thought they had obtained. As to Staff's objection that fences should not be permitted in the City right-of- way, the Code does not anywhere prohibit fences or landscaping in the right-of-way, it merely requires permission and approval from the City Engineer prior to adding these improvements. In fact, the Engineering Department's Guidance chart entitled "When do I need a Permit from City Engineering Department?" attached as Exhibit 6 hereto, indicates that a permit is required to build a fence and that fences (other than metal fences) are the types of things one should obtain a right-of-way permit for: "You must apply for a right-of-way permit when you plan one or more of the following activities: Gorsuch BOA Application Appendices PageA-7 ,..... ',-", """ "'",.'" . Landscaping including sod, bedding plants, flower gardens (Metal fence, boulders larger than 6" diameter and similar hard-scaping materials are not allowed). . General disturbance of public ROW or easement not listed above." Staffs argument that they cannot allow the fence because of the "p recedent" it would set indicates a failure to apply the Code standards as to when encroachments are permissible, and has the effect of writing those standards out of the Code to create a "precedent" that no encroachments are allowed in the right-of-way, period. The City Engineer has issued numerous encroachment licenses in this and recent years for fences and other improvements. Finally, the fence encroachment permit, if approved is by its terms fully revocable by the City at any time and is not a vested right that could establish a precedent. Gorsuch BOA Application Appendices Page A-8 ,--, - EXHIBIT 1 Certificate of Ownership " J' r" ~~..., """,, '-..,1'"' CERTIFICATE OF OWNERSHIP FOR APPUCATION UNDER PITKIN COUNTY LAND USE CODE The undersigned lICensed attorney at law hereby certifies the followlIlg facts. As of the date hereof, Jeffrey Gorsuch and Molly Gorsuch (collectIvely "Applicant") are the mdivldual owners of, and Molly Gorsuch holds title as custodian for each of their three cluldren, Elli S , Manel Matheson and Brook S Gorsuch, who also own an mterest 111, cerlam real property situate 111 the ounty of Pitkm, State of Colorado descnbed as follows: LOTS G, H, and I, Block 14, City and TownSite of Aspen also known by street and number as 707 W North Street, Aspen, CO 81611 Pltkm County Assessor Account number R000694 Parcel number 273512115001 KRABACHER & SANDERS PC, A ProfeSSIOnal Corporation Date Apn125,2003 By Diana L Godwin, 2457 201 North Mill St., Suite 201 Aspen, Colorado 81611 (303) 925-6300 31 15\2CertofOwncrshlp I """'''. .....,.... EXHIBIT 2 Authorization to Represent , ~.,>,.", """" " ....- .'...,/ 84/28/2883 88:25 9789253338 GORSUCH LTD Arf.25. 200J 3.50Pij Krabacher Sanders PC PAGE 81 No WS P. 2 JefUey Gomldl Molly B. Gonuch 'lt11 W. North Stteet A.pen, CO 8161 t (970) 925-3338 City of AI~n Community DllVelopmtnt Dept. 130 S. Galena Street Aspen, CO 81611-1975 April2S, 2003 RE: Gonuch Appeal 01 Revocable J3ncroaclunent Lk:eme for 8 Fenc:e To wlwm ltmay COMeI'll; We h2reby authorize Krlbaeher ok Sandm, P.Cy and Hw Land Planning, u..c. to act u our delllgnated and authorlnd repreeenlativ" with respect to the Boud. of AdJUlltment appeal applltatlpn being .14bm1~d to your of&e for our property located at '107 West North Street (Lots G, H and L Bloclc. 14-, City and Townsite of Afptn). They are 8uthome4 to IUbmit 11\ application for an lIPpeIIl of a Revcx:able Encroachment License for our ~ IOCJted In the North 611I Street RlghloQf.way. They lire .wo authorized to reprell\lllt \U In meetingt with City of Alpen staff. Should you have any Ned. to conta\:t US during the CDU1'IIe of your review, pleue do eo through our ftP~nlat1v., whoM acIdruru and telephoM numbtn are mc\uded on the cover page ol the appealapplkation. ~~.~b Clef&. 0 owner ~~~- Molly B..u er --"""",, EXHIBIT 3 Site Improvement Survey " "'-""",, , -.., '."J '\(fO~O<X& I 0'ct . NOT FOR CONST'Fi1JCTION ~ Progress Set IV 25. 20L I( . .< ~ ~OC:~$ .. .l"OC;..lTJ:. ~ .......--- ...-..... -__I". .........mMln N__ -- -- -~;:~,.. --- -=-- i= :. LU U ~ Z ~ w " ~ !I ~ ~~ . :c ~2' 0 ~ ~~ 0 ~ & . 0 0 ~~ - cf.J ~ SocI -- ....... . Gn<..' ...... bo.dC. .T? .jOy 1"""1:1..., , . Trus ~ ( I -... - .-2a'" ~ -- ,.... -.. .... """'.. w ( CD ~~;. FLA~ - , I e ., ,.' ,A2.0 @-~ I .".;, - EXHIBIT 4 Certificate of Occupancy " '" . e '''' ~ " ~ "101 I 'I,'~1'\ .,J" ~.~, ,I'" ~~',~ ':::~ ;.'11 ' I, . It ,. l , ~. .,~" ~ ~ "';': . I!: "1111.. iI..wlt,..,." jIf''''h... - , " ......" ...'1" '. '>;:t,..1 I , 'f!:,.t ~ ,~ )iJ:' ,~,' fl" t" "t Leg61 Description' 16032oo1.a5r3 SUB CITY AND :rOWNSITE OF ASPEN BLK 14 LOT G,H,I BK 0554 PG 0915 BK DaSa PG 0622 BK 0537 PG Oa7S , - I Certificate 0 Occupancy AspenlPltkln Commum\V Development Department ThiS cerMcate Issued pursuanllo the reqUIrements of the 1997 edition 01 109 section of Ihe Uniform Building Code II certrf1es thaI at the dale of Issuance, the slructure as described below was In oomphance WIth the verlous resolutions and ol'lllnances reguleUng bUlldmg conslrucUon and use In thiS Junsdll:tlon Use CIIIs,flcatlon' 5FR , . ~ . . '. " J ':':I'~ I' '~. ' I ,lii;~' .It 'l'~ h .~.' . . - , BUIlding Permit. Building Address. 707 'w NORTH 51 ASPEN C081611 . Owne! of Building: JEFFIMOLL Y GORSUCH Owner Addreal: S25 GIBSON AVE ASPEN CO 81611 Group: R-3 Type of Construction: V-N Use Zone: R-6 Descnptlon: 820 square feet Includes two car detached gsrsge Accesaory Unit one liVing room, one klIchen. one full bath, one bedroom studio Comments & Reltrtct'onl: One KGO Kern Fireplace. Two Heat n Gio Gas Appliances. I 4t~' /~"d-. , C IBUlldlngO C~, U Note In all oceuptlnclea, excepl Rothls certlflClll mult be po.ted In. can.pk:uoua place ..ar lhe main exit on th. pRml... for which ilia IqUld Arri alteration or LIlt ollh... dHCfl)ed pr8rn1'" or portlof\ lhe,.of wdhoul tIw wntten approval of the Sulcing Offldal .haH negate h, C 0 and lUbject It to revocation \~':',1 . , ..~ l \, I, I I"'" ............ ~ - .1} '1,;,., '. '. Certificate 0 Occupancy Aspen/Pltkln CommunIty Development Department ThIs celtdlcate Issued pursuant tD the requIrements 01 the 1997 edition 01109 sectIon 01 tha Uniform Building Code It certIfies lhat at tha data 01 ISSuance, tha atructura as described below was In comphance WIth the vanous resolutions snd ordinances regulahng bUilding cDnstrucbon and use In thIs Junsdlollon , ':,if!i ~Il "4."'.. i;#/i'r I,,'.'" 1,1(- \l it,] ""..I.> ..l-"{W ," . ~ 1 ~-: \ 'I ~'r' , I' ,I r , , . Use elasslflcallon: SFR . Building Permit: 1602 2001 asr3 .- .. Legal De.crlptlon. SUB CITY AND TOWNSll'E OF ASPEN BLK 14 LOT I3,H,t BK 0554 PI3 0915 BK 0698 PG 0622 BK 0537 PG 0879 " BUIlding Addres. 707 W NORTH ST . ASPEN CO 81611 , , 'J;:"r Owner of Building: JEFFIMOLL Y GORSUCH Owner Addres.: 925 GIBSON AVE ASPEN CO 81611 Group: R-3 Type of Construction V.N Use Zone' R-6 .Descnptlon: 4,643 square leetlncludes lour bedrooms, two full baths, three 3/4 baths, one 1/2 bath, one Iotchen Comments & RestrictIons' 1t~ 1,~,: ' " " " , ' l ~.' ','10 I ~ i,l . . ,. , . , , " , "', , "' ,. I~ 0;1 Not. In IUoccuplncl.., n"pl R,lhIa certificate mual be posted In. caniplcuOUl place near~ the MIIln IIXIt on the premia.. for wtuc:h n 1I1.IUld Arty ahl,..llon or uti at thne d'lCIlbed prtrlU.. or pol1lon 1her.of WIthout the wntten approval or the Build""" Offlclallhln negate thIS C 0 and IUblect tlto reYOcadon [> ~,: , 'vh ~...&. ~ .r , ,;.' ,J~~',>\ "'I , ~ "" ~'t I I , ,. ..". /., '.,..", -- EXHIBIT 5 Right-Of-Way Permit Requirements, Policy 205 ;' .....<.;.' PolicV 205 City of Aspen, Engineering Department Right Of - Way- PERMIT REQUIREMENTS REWSED MARCH 2002 City of Aspen - Engineering Department, 130 South Galena Street, Aspen Colorado 81611 ~970-920-5080 ,..., ~ - "',0,.... B. Shoulders, Curb & Gutter. Sidewalks, Crosspans. Drives. and AllfJVs All of these ROW components must be 'completed in accordance with the permit requirements and the practice standards approved by the Engineering Department. C. Sediment Transport and Erosion Control Applicant must submit a sediment transport and erosion control plan prior to approval of the ROW permit. An erosion control plan must be designed adequately to prevent surface runoff containing sediments onto public ROW, during the construction phase and throughout the life of improvements. D. LandscapinQ. Trees. and IrriQation Ditches All new, improved or ,altered landscaping within a public ROW must be approved by the Engineering Department (City Codes 21.12.010, 21:12:0'20;21:12.030 and 21 :20;010). A detailed landscape plan must be submitted prior to approval of the ROW permit, and include existing conditions, such as trees, ditches, sidewalks, property line and edge of pavement Plans shall also include all new proposed vegetation (sod, perennials, annuals, shrubs, trees, etc.); caliper size and speCies of proposed trees; and details on any proposed solid objects or other structures, including but not limited to boulders, sculptures, paved areas, rock gardens, mailboxes, irrigation system,s, or any other materials to be placed In the ROW. The intention of public rights-of-ways adjoining properties is for pedestrian flow and other public infrastructure, such as utilities. Landscape amenities in the public ROW should be limited so as not to disrupt the functions of the ROW. Submitted plans are to be to scale. Planting of trees.or other solid objects in the ROW shall notbe on top of underground utility'lines or easements and no vegetation shall be planted to impede access to electrical transformers, utility pedestals, fire or water hydrants, manholes, or other public utility structures (a minimum of 3 feet diameter around all utility structures). Trees should be plarited no closer than 30 feet from an intersection comer and tree canopies that extend into the plane of a sidewalk should be pruned to a minimum of eight (8) feet vertical clearance above grade or not extend into travel lanes. Any excavation, including trenching for utility lines or installation of sidewalks or other paved areas, within the dripline of any trees must be detailed' on the ROW permit: 'Applicants 'areencnllrllgArl to _' avoid excavatin within me anpline of trees and im 'actin the root 5 stems " 'ees. 'If the ROW permit is approved and tree roo s are encountered and torn during excavation, the applicant should trim the exposed roots with pruners (clean flush cut) and back fill the area with clean nutrient-rich top soil (cross reference City Code 8.40:050 . Soil preparation). If roots are exposed for more than 24 hours, thEm the roots should be covered with landscape fabric or other material and kept 'moist by watering once or twice per week. Ditches shall not be altered without the approval of the ditch owner (some ditches are privately owned and some publicly). Ditches owned by the City of aspen (primarily the West End, Cemetery., Lane and Ute Avenue neighborhoods) require approval prior to landscaping the edges of the ditch, placing rocks within the waterway, altering the water course, constructing a pond or culverting the ditch. Persons desiring to utilize raw water supplies to irrigate property must apply for such use through the City of Aspen Water Utility Department (City Code 8AO.040 . Raw Water Supplies). " , , City of Aspen. Engineering Deparlment, 130 South Galena Street, Aspen Colorado 81611 ~970-920-5080 .:i "", .1'""" ....... ~ EXHIBIT 6 Engineering Department Guidance, "When do I need a Permit from City Engineering Department" ""'...., -.. ,.,., _.J When do I need a Permit from City Engineering Department? If you plan a construction activity in the City's public right-of-way (ROW), easement, or even work adjacent to these areas that might impact or restrict the public use of it (whether occasionally or regularly), you will need an approved 'ROW permif' or an 'Encroachment License" or both, before you start any activity. The following guideline will help you to determine the need for permit(s): I WHEN YOU NEED A PERMIT .. * . YOU MUST APPLY FOR A RIGHT-OF- WAY PERMIT WHEN YOU PLAN ONE OR MORE OF THE FOLLOWING ACTIVITIES IN THE CITY R.O.W. -Installation, repair or replacement of utility line or service line. -Construction, repair or reconstruction of a driveway or curb cut. -Installing or replacing curb/gutter, sidewalk or draina e facilities. . 'eluding ardens (Metal fence. boul rs I 6' and similar hard-scaping materials are not) allowed . . I' ance or-public ROW or easement) (not listed above. YOU MUST APPLY FOR A REVOCABLE ENCROACHMENT LICENSE WHEN YOU PLAN TO OCCUPY THE CITY PUBLIC R.O.W. FOR THE FOLLOWING PURPOSES: · To park or stage and operate construction equipment or vehicle, if approved by the City for a temporary short period of time, .Short term parking of a construction field office. .Short term placement of scaffold. .Placement of temporary construction fencing. -Short term placement of a dumpster or loose material container. -Installation of landscaping materials and sprinkler systems. Boulders or large rocks are not allowed. -Other restrictions not listed above. HOW TO COMPLETE A PERMIT APPLICATION " - Obtain ROW permit packet, review and know the contents, - Complete the necessary forms. - Submit all required documents and fee. i .,. Obtain an encroachment license packet, review and know the contents. Complete the necessary forms. Submit all required documents and fee. WARNING! The Engineering Department will not accept or be responsible for incomplete submittals, ENG-501(R0W2001_01) 85/86/2883 12:34 9789257395 HAA5 LAND PLANNING PAGE 82 ,".".',> " ';",,/ ." May 4, 2003 . Aspen Board of A<iJ.._...-.... Aspen City Hall 130 S. Galena St. Aspen, CO 81611 RE: Gorsuch Fence 0eIIt Members of tile Board of AdjU5tments: We are writQIg this letter to you to voice our support of the Gorsuch's fence that we understand is en\lroachina on the ~ Street right-of-way, Their fence bas historically been in that SIUJIe location. It does not illhibit ~estrian traffic along the stract or d~ any of the l:laudful trees along 6th Street. We arc concerned that if the fence were moved to theit property line that the trees might suffer. The current fence in pIIce is a sreat improvement to the fence that was there before the Gorsucbs rebuilt their houW. I As neighbors on NOrth Street, we urge you to allow the Gorsuchs to retain their fence in its flllisting location. I , Sincerely, ~ ~Z;;, (/ <;;J.. l no.,.ky' . ~ . "'7X ,G,-e~ Elyse EUiott a. Jeremy Bem!ltein 610 W. North St. ~ro ~~ ~^-:, I."UJ '"' b_ Jisr:,r o~ ~.'" & ~ ~"LA..Jo--~ d'6{j~-:)v~ > <> G-vSL-- ~~ ()'<LYb)<')~ ~~ L-c~~ Q< nor A- s-t~a ~ +VII V~ o~ (JO~ ------~ ~"\.",~l~~~ O'~~ u~ ~ W --"" ~ (g6JS -~ JLJ' S;~~ 5tdfYl~ o -;;~ eyoS-'lrS cA\~~ +0'0 OL bu\\~ ~ 'P a--t>>u-'7 o::y~ -to~. ~~ ~"::> -3 '6J~ yc,~ '~ ~~ J\ o 0"-0 . -=s::r~,J)../()'~ ~Ir !!/J2e!9-SC%> S O+- ~~~5 13 J-,o~ ~oG.-5 ~O\O~ GA; (yl~J ~5? J\ '--' --4-r- hc;vv--L-- ~ ~~ ~ e. CX)O f' r o ~/oU-V C/~~~ 0'9- "'-Jo\U ~7 ~ ---M~ o 016t cJ2- "'5~~~----') c ~ _) I ?'S CY~~~ ~:~~~~;;~=~ ~ \ ,. 1.. ~ jrr::::: . ,'''',,-. I""" '- T'"l.' /\/Joyor and L/hl (c7UfJ (l/ oeard C/ fldj~/shnel7f5 Eng/neenny Deportment 'i!--c~nlI)3 Depo.r /men r liVe:- Wc1nl- 10 -ii/anI< e-vevyon~ -fir -hkil7J the -I1me... fc review our C'Ct?e. Vl/e.... ctfo/c3/Ze.. {Or f){)t be/O!} prt"5t"nl; hL,{f we... were.- on O. pre. -p/u/1ned /CII77/<; 'vClCcdiOh wlllc!, CNl/cll1 'f- ~ changed and we w~re., -/old vv& dldn'r need -Iv he-- affl7e. mef?hnJ on June... 6; 2o{'3, We.. q/~D wdl1f fo 111{{11 t yc[,( Jvr eyicnckn.!} --Me. -hine we have, -jo -jake. dmlh rt1& C?/de. f(nce. Dr emf y-:;-e, W.e___ crrG- di5cIjJjc'/nk Jw/fl-] /1,t;l3oord'5 deCIC;f{)/7' buf we- WI/l h~ hCtfjJy -k,.Ornpiy' /v,_ /tl'j / vve:..- ()rV dl$t-1pjJcmf.cd w/lhfhepKou?75., OInd we-tV! fed -fo ey pr~~5 C[,.lr t()f?{'erY1~ fiv C iHf01 f and fir lure.- rf7/denb;, 90"ny --!hrtfJ{<g'-7 d-. W'e- !3fnuinehj never mea/d to J 0 cU1L/ftll'ny wren:.; and vl/c.- -hnd II- 'Ver<-( sad thcl'r a/mo?!- eVlYv/Dnf/ sav:e:... one/ WCt<:; /;(y!jt.,t7I1,-/ )iAdgrnel1/z:t/ Ih olAyab5C'l7('e. MtlfF( hUj/fftt/ and /hL7IA/'Fny''vv{(I;-dr;. We're.. 5/?okeh bi.( -;!7e. f'5fa/fil and "f30CIKd" ar j11? lr7eeh~ OVid IT- 5~m5 !ei'Tlb/y ({yh/hrti/'-) Clrd OW!Clyon/.:;hc.. ' G- J5 .-() 3 Why? A/I we. hOVe. -/hfld Vt v'/ hord -b do 15 bt.d/d a.,. -fa5tefl1/ hOme Ihkeepln3 'vV/lh-fheher:'fr7ge. Df Ihe. WDnder-iTA/ pecp/~ whD /tved here-since /C};;,L// Ell; f~'!fI1 V;ent7cl< IfNs/na) OtrIC/ Fred (fYwn Stv/fzerIOnd) I5e//l7; f'vviJ /hCrG-dlb/y chari5mCij?'C p(Dp/e~ who c/f';;~t"d fhe 91).0///7,7 of eorly Jhpel'7 oS a 51::.,: bW/1, - ~ - ~ ........" .' 3 12>Y'OO/LS J OU"- SOh who I':> 0) f/li ond iVlor/e ~ OLt( cJolA3hkr5/ WhO ore..- '-I and- 3) Clr~ ba~/CQlly ~t/J T-sel/h 's 9veafgYClndCh,Idreh Cthd, We,. khOIA/ she. would be.- prowd of wh4..t" we. o.ro d o in,:} . So if -fA,'s whole- /SStAe is -Iv mak.~ l./S Oh / example. -fhetJ we- wI'll JiY& vvlIh -fhar decA5ioh . I-tz:,wever; -{he. wo.y In willeh 1t-1/5 SirnQh'on has heen hond/ed J'S pelhl I dl'sfCtsk'h1 /) ab~'i'?IV<-- ~nJ cDnfuSinj cd be sf; espec;'Q(!y for- 0 pierce It ~e.. n-;;peh . If- i? Q/~o 0- ternh/y poor ,......)fkch.on oF- fAG- Town Counc// whO OippOinrec1- -H,lS T30arcl of 11c/j u ~ ;--men rs. (he.. t:Y\9 ih eer/h 1 Oind rvn"r:q s fatp olonj w/rh 1he- Soarer memhcr,sJcmon?lraffd. fhem-selve's in -fh e..- he {). Y';'n 3. (Ju h~ c;) rn in a -It 5 Cl S J IA dB me n I-al/ SI-<V ec rvc-/ olb(..IC7/Ve..- CElltl ft;r all ;;t"LuhctJI fltJrjJC?7C5/ pr&~cJe..krmln(d in -!he, df'c./c;/on ~ male/nj pro{~>S . We... W{)(1 r you -Iv tl1 CIAJ --fA6r..ffI/5 seems wrong ,/ prej ud/Ced Q!1d It; fo/eran t 7J,e- pr-OCt'''75 /'5. CDhfz,fs/n3, OIhd f'/awed. We- are- notfr/vl/e3ed jflgra fe~ //Vif7j fhe.- JDod kfeaodfn/lhJ fo gel- away wllh whafeVer w? Can. WC--' arv an 1- ';f7esf) c/f!Cfn f; A Ctl/"d wer!!';'I:} falnl/Y who -jr/t'S ]v h~ /Af s/nndl/73' p...... ",," ~', L/ ]:h rnocj- places YOfA dOh if. have.-..Iv df?knd your' rep~t Iv/7Oh Wt+hDvt" ('au 5r2. flre- :;a:cl Cit-:"?::Ui5 of I0peh oS5urneclf}ul/ht Wi:fhO~r- bell73 giVen Ct (/1 a IJ (e-/D de" ;end '--!hem '?e I t/t' 5. ? Da7f, -fhe jowl7 (ouncil CtppJ"OV~ of-/izI'5 ?rt:xe>s ? , ffgc/I'n I Wc-- ore. S/i7cer.e/y $orrli';;r Ih e IYJ conven(tnCG of OlAr HnCG in -!he.. Row. Our confrQcl'or; erlkr pltl/lnj all -Ihe. ofher re'lulr--ed j)ermr'1-s correCfly) believed we had don e.. -th/~ properly fOr f!ie-- jfnce / foo. w~ hOI7C'&7/-1y believed We..-. had fhe fY!rm,'5 c.; ton fD re.Con '5 fru.cr (he.... fence-Jus! as we.. sodclt'cl and,lrnf3a..tad rhe- en, p-r& rigid- of W'C/7' O~ none of t!:. was ever ;/emf'd, 8e -!hat as II- m0'11 v(/~ Will -fc.<k~ -Jhe--fenc-e.dowtl in -lhe. neyf' couple of weekS. t.-1/e- Qre.. hOt- re.plc<cil/Cj /1-; so w~ hop.e fAt:.- clul d ro-/ 5 LA n "'71 fJ /1 f r yiv y S in -f~ e 'I Cird Wo h ' I- her 0- heW prohlem f;r ne/ghhors ondfor slghfseers. lhal'll. yeu / IV/&IIV cmd Jf It Gorsuch 707 W. A/orfh Sr. /t?pen/ Co t /0/1 ". . ~\, ......., ...,....' ,..,-.." .......< "-" ~ ~lpjnc WARREN SHERIDAN 333 LOGAN STREET. SUITE 215 DENVER. COLORADO 80203-4089 FAX: 303-778.0905 TEL: 303-778.0900 LAND. OIL & GAS PROPERTIES alpineland@attglobal.net July 1, 2003 Aspen Board of Adjustments 130 S. Galena Street Aspen, CO 81611 Dear Ladies and Gentlemen, My wife and I reside at 700 W. Smuggler. It has come to our attention that the Board has prevailed upon our neighbors, Jeff and Molly Gorsuch who reside at 707 W. North Street, to tear down the east line of the fence they recently built around their property because it slightly invades the City's Sixth Street easement. For the record, we consider both their new house and the fence to be credits to the neighborhood and the City. While you are doubtless correct about the encroachment, it occurs to us that the Board would gain respect if it were to excuse this matter until and unless the easement is ever fully utilized. This would obviate the need to incur unnecessary, and remarkably large, expense and allow the Gorsuch's to enjoy their yard with no hardship or inconvenience for the City. They would be pleased to enter into an agreement to move the fence upon notice at some time in the future when the City elects to develop the easement due to need. This appeal is tendered as a matter of practicality and aesthetics. Please be so kind and reasonable as to accommodate this request. Thanks very much for giving this matter your thoughtful consideration. Sincerely, p{~ 4~L.~ , Warren Sheridan