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HomeMy WebLinkAboutlanduse case.boa.731 E Durant Ave #7A.003-99 , D , . AGENDA ASPEN BOARD OF ADJUSTMENT COMMISSION Regular Meeting Thursday, May 13, 1999 at 4:00 p.m. Council Chambers, City Hall I. ROLL CALL II. MINUTES (04/08/99) III. DISCLOUSURE OF CONFLICTS OF INTEREST IV. COMMENTS A. Commissioners Comments B. Staff Comments C. Public Comments (not concerning items on the Agenda) V. PUBLIC HEARINGS A. Case #99-03 UNIT #7, Chateau Chaumont -variance from the density requirements ofthe L T-R zone district to allow for the conversion of existing office space into residential space. VI. ADJOURN MEMORANDUM TO: Board of Adjustment Julie Ann Woods, Community Development Director QI~' Sara Thomas, Zoning Office@ r. . THRU: FROM: RE: Chateau Chaumont Condominiums, Unit 7 A DATE: May 13, 1999 SUMMARYIBACKGROUND: The applicant is requesting a variance from the minimum lot area per dwelling unit (density) requirement in order to convert an existing condominium unit from office space to residential space. The Chateau Chaumont is a multi-family complex on a 12,000 square foot parcel, located in the Lodgerrourist Residential (L T-R) zone district. The Chateau Chaumont was constructed in 1968 as a lodge and complied with the underlying zone district requirements in effect at that time. Since 1975, the Land Use Code has required that whenever kitchen facilities are installed in a lodge in the L T - R zone district, those units shall be deemed as multi-family units and the lodge shall be required to satisfy the minimum lot area requirements for a multi-family dwelling unit. Multi-family dwellings in the L T-R zone district are required to have 1000 square feet of lot area for each bedroom. Therefore, this 12,000 square foot parcel is permitted no more than 12 bedrooms. The structure currently contains 21 units with approximately 48 bedrooms and is considered to be a legal non-conforming structure. As the LT-R zone district allows only for customary accessory commercial uses for guests of uriits, the current use of the unit as a professional/business office is considered to be a legal non- conforming use. The existing non-conformities may be maintained, but cannot be extended or enlarged. Unit 7 A was constructed as part of a residential unit in 1968. It was subsequently converted to office use in the early 1970' s, according to the applicant, and has remained as office space since that time. The applicant states in his application that a number of Chateau Chaumont units have been converted from office space to residential space over the years, However, according to Building Department records, there appear to be only three units (#20, #22 and #23) that have received building permits for interior remodels and each of these permits were issued for remodeling of residential dwelling units, not office space. ""'" Should the variance request be granted, the conversion will still be subject to review under the Growth Management Quota System(GMQS) requirements as a "Change in Use". Section 26.102.040 of the Land Use Code requires that any change in use of an existing structure between the residential and commerciaVoffice categories be reviewed and approved by the Planning and Zoning Commission. The P&Z may grant an exemption from the GMQS if it is demonstrated that the change in use will not negatively impact the neighborhood, and will mitigate for any impacts on affordable housing and parking. Please refer to the attached written information provided by the applicant for a complete presentation of the proposed variance. STAFF RECOMMENDATION: Staff recommends denial of the variance request finding that Review Standards #2 and #3 have not been satisfied. APPLICANT: Dale Eubank, represented by Michael Hoffman LOCATION: Unit 7A, Chateau Chaumont Condominiums 731 East Durant, Aspen, CO REVIEW STANDARDS AND STAFF EVALUATION: Pursuant to Section 26.108.040 of the Municipal Code, in order to authorize a variance from the dimensional requirements of Title 26, the board of adjustment shall make a finding that the following three (3) circumstances exist: 1. Standard: The grant of the variance will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Comprehensive Plan and this title. Response: Granting the variance will not conflict with the goals of the Aspen Area Comprehensive Plan. 2. Standard: The grant of the variance is the minimum variance that will make possible the reasonable use of the parcel, building, or structure. Response: Since the existing non-conforming use of Unit 7A as a professionallbusiness office is permitted to continue, it is stafrs conclusion that the building is already experiencing a reasonable use and therefore no variance is required. In addition, the zone district requirements allow for the unit to be converted to residential space if it were combined with another existing dwelling unit, as long as no additional bedrooms were created. This is the configuration that the space was originally designed for and would not require any variances. 3. Standard: 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 right would be deprived, the board shall consider whether either of the following conditions apply: a. 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 b. Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Comprehensive Plan the terms of this title to other parcels, buildings or structures, in the same zone district. Response: The Chateau Chaumont is not unique in its non-conforming status within the LT-R zone district. A significant number of non- conforming structures exist in the LT-R zone district and staff is aware of a number of situations where other parcels have not been permitted to expand or to add additional bedrooms due to the zone district density requirements. Staff concludes that the existing circumstances do not cause the applicant unnecessary hardship or practical difficulty and, in fact, allow for a very viable use of the property. Denying the variance will not deprive the applicant rights commonly enjoyed by other parcels as the property can still be utilized fully. ALTERNATIVES: The Board of Adjustment may consider any of the following alternatives: . Approve the variance as requested. . Approve the variance with conditions. · Table action to request further information be provided by the applicant or interested parties. . Deny the variance finding that the review standards are not met. RECOMMENDATION: Staff recommends denial for the mInImum lot area per dwelling unit variance request to convert an office space to a residential dwelling unit, finding that Review Standards #2 and #3 have not been satisfied. - ""'" RECOMMENDED MOTION: "I move to deny the request to vary the minimum lot area per dwelling unit to allow for the conversion of an office space to a residential dwelling unit at 731 East Durant, Unit 7 A, finding that review standards #2 and #3 have not been met." ALTERNATIVE MOTION: "I move to approve the request to vary the minimum lot area per dwelling unit to allow for the conversion of an office space to a residential dwelling unit at 731 East Durant, Unit 7 A, finding that the review standards have been met, and that such conversion shall be subject to Change in Use approval by the Planning and Zoning Commission." c :/sarat/homelboakell y . doc NOTICE OF PUBLIC HEARING CASE #99-3 Before the City of Aspen Board of Adjustment TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the BASEMENT MEETING ROOM, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 26, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections, If you cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time of Meetin!!:: Date: May 13, 1999 Time: 4:00 P.M. Applicant for Variance: Owner for Variance: Name: Dale Eubank Michael Hoffman Address: c/o Freilich, Myler, Leitner &Carlisle 106 S. Mill Street, Suite 202 Aspen, CO 81611 Location or description of property: Unit 7A, Chateau Chaumont Condominiums, 731 East Durant Aspen, CO Variances Reouested: The applicant is requesting a variance from the density requirements of the L T -R zone district to allow for the conversion of existing office space into residential space. Will applicant be represented bv Counsel: YES: X NO: The City of Aspen Board of Adjustment 130 S. Galena Street Aspen, CO 81611 Charles Paterson, Chairman "'" " LAW OFFICES FREILICH, MYLER, LEITNER & CARLISLE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS N ,-\SPE;>O COLORADO ATrORNEYS AT LAW DAVIDlMYLER.P_C' E. MICHAEL HOFFMAN : SHANE J. lIAR'lEY I 106 Sourn MILL STREET SUTE 202 AsPEN. COLORADO 81611 IN KANsAS CITY, MISSOURI FREILICH, LEITNER oft CARLISLE AlTOR.'>l"EYSATLAW IlIlNlI1'!DIlfCO' FACSIMILE (970) 920-42~9 TELEPHONE (970) 920-1018 ROBERT H. FREILICH, P.e. '-\. MARTIN L. LEITNER. ?C ' RICHARD G. CARLISLE. P.C : STEPHEN 1. MOORE. PC ' S, MARK WHITE~' KYUE.F()()"'IT" IlIlNlI1'!DIllMo'.-:K.I<T'.:<C' CERTIFfED LAND USE PLANNERS MICIiAEL J. LAUER. AlC? JENNIFER K. BARREIT. AJe? KlM S. BROPHY,AlCP April 26, 1999 Aspen Board of Adjustment Aspen Municipal Govemment 130 S. Galena Street Aspen, Colorado 81611 Re: Request for Variance - Chateau Chaumont Condominiums, Unit 7 A (the "Unit") Dale Eubank, Owner Gentlemen: By this correspondence Dale Eubank is requesting that the Aspen Board of Adjustment grant a dimensional variance to Unit 7 A of the Chateau Chaumont Condominiums (the "Project")', which he has owned and/or occupied for over 20 years. Mr. Eubank no longer makes use of the Unit as an office and he would like to utilize it occasionally as a place to stay when he comes upvalley from his home in Carbondale. The variance is needed because the City has taken the position that Mr. Eubank may not use the Unit for residential purposes, even though residential use is permitted in the LITR zone district and despite the fact that 24 other condominium units in the Project are now used as residences. Mr. Eubank has attempted to sell the Unit "as is" for use as an office, but has not been successful in doing so. L Proiect Back2round The City has taken this position because one of the dimensional limitations imposed on new structures in the LITR zone districts relates to density. One thousand square-feet of lot area is required for each bedroom constructed in a multi-family dwelling, The Project is located on a 12,000 square foot parcel ofland,2 and houses many more bedrooms than would be allowed under current zoning. The current density of the Project would represent a violation of the Aspen Land Use The Project is located on the southwest side of the intersection of Original and Spring Streets. '. 2 Lots F, G, H and I, Block 107, City and Townsite of Aspen. FREILICH. MYLER, LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 2 Regulations, but for the fact that the density of the Project has been "grandfathered" as a nonconformity provisions of the code. At the time it was constructed in 1967 and 1968, Chateau Chaumont adhered to the density requirements of the zone district which then applied to the land. As approved, the Project required only 375 square feet oflot area for each unit. The Project was completed late in 1968. No units have been added since then. Because it was zoned C-I under the 1963 City of Aspen Zoning Code, certain commercial use could be made of the units. Under the Project's Condominium Declaration eight of the units were designated for both residential and business use. Mr. Eubank's Unit was among those eight. His Unit was first owned by Nick Coates, who used it as a residence for over two years. Mr. Coates then separated the Unit from its adjoining space and converted it to office use.3 Mr. Eubank has employed it as an office since the late 1970s, Even after zoning for the area no longer permitted office-type use within the zone district, many of the "Business Units" were utilized for that purpose as a nonconformity. All of the Business Units other than Mr, Eubank's have now been converted back to residential use. The last of these conversions was carried out in September of 1997.4 II. Standards for Grantin!!: of Variance Section 26.108.040 of the Land Use Regulations establishes the standards to be applied by the Board of Adjustment in its consideration of a request for a variance. In order to authorize a variance from the dimensional requirements of Title 26 [of the Aspen Municipal Code] the Board of Adjustment shall make a finding that the following three (3) circumstances exist: I. The grant of variance will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Comprehensive Plan and this title; 2. The grant of variance is the minimum variance that will make possible the reasonable use of the parcel, building or structure; and 3 A letter from Mr. Coates describing his use of the Unit is enclosed herewith as Exhibit "E". 4 Unit 23; which is currently owned by Jane Geddes and Gigi Fernandez. A building permit was issued by the City for the conversion ofthis unit back to residential use. "","'" "'" FRULlCH, MYLER, LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 3 3. 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. Mr. Eubank asks that you grant him a variance from the density limitation of the Code, We urge you to grant his request because each of the three required findings are present in this case. A. Consistencv with Aspen Area ComDrehensive Plan The grant of a variance here is generally consistent with the purposes, goals, objectives and policies of the Aspen Area Comprehensive Plan ("AACP") and the Land Use Regulations, One of the "visionary themes" which underlay the 1993 AACP was to "revitalize the permanent population, to bring back local serving businesses into the Aspen Area and to revive the vitality that previously characterized Aspen. Imolicit in this vision is a recognition that densitv increases above current levels will occur within the Citv to accommodate this revitalization.'" Mr. Eubank recognizes that the density of the Chateau Chaumont Project exceeds that which would be allowed if development approval was sought today. However, it is an existing building and has housed visitors and locals for over 30 years. Conversion of his Unit will not cause an appreciable negative change for the community, Use of the Unit as an office generates traffic and other impacts for the neighborhood. Conversion to residential use may marginally increase some of these impacts and decrease others (such as traffic). More importantly, residential use of the Unit will allow Mr. Eubank to eventually sell it -- most likely to a local person or family. The Unit's physical characteristics, especially below-grade siting, will keep its sales price low, by Aspen standards. In keeping with the goals of the 1993 AACP, approval of the conversion of this unit to residential use will create a de facto affordable housing unit, one which allow the owner to participate in appreciation in the housing marketplace, The City has taken the position that Mr. Eubank's conversion of the Unit back to residential use requires a variance because the number of bedrooms in the entire Project exceeds that allowed under current zoning. If this decision is allowed to stand, its effect will be to substantially punish Mr. Eubank for the nonconforming aspects of the Project as a whole. That result is unjust. Over the past year Mr. Eubank has attempted, without success, to sell the Unit as an office. Real estate professionals have explained that there is little interest in office use of the Unit because most of those who might utilize it for that purpose have moved downvalley, If Mr. Eubank is not allowed to make residential use of the Unit, he will be denied the meaningful benefits of ownership of this property, The draft AACP Update of April 1999 properly voices frustration with this ,type of bureaucratic decision-making. "The relationships between the citizenry and the city government need improvement. More open and sincere communications are badly needed. . . . Rather than creating ., , 1993 AACP, p. 6, FREILICH, 'MYLER, LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 4 new rules we should creatively solve problems. Let's encourage more citizen-inspired contributions, while being sympathetic to excessive demands placed on our government. . . . We should become closer partners." Mr. Eubank's request for a variance from a regulation which deals not with individual condominium units but with the Project as a whole represents an opportunity for creative, cooperative problem solving. B. Minimum Variance for Reasonable Use of the Premises As mentioned above, demand for the Unit as an office has diminished over the years because professionals who might wish to make use of the space in that way have moved Down Valley. As also previously discussed, although use of the Unit for residential purposes may cause some negative impact on the neighborhood, traffic and other effects of the Unit may actually be reduced by a change to residential use. The bottom line, however, is that there are 24 units currently used for residential purposes within the Project. Residential use is appropriate for this property. C. Ratification of Staff Decision will Result in U nnecessarv Hardshio In evaluating a variance request, the Board of Adjustment must determine whether "literal interpretation and enforcement" of the terms of the code will cause unnecessary hardship or practical difficulty to the applicant. In determining whether an applicant's right would be deprived, the board shall consider whether either of the following conditions apply: a. 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 b. Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Comprehensive Plan and the terms ofthis title to other parcels, buildings, or structures, in the same zone district" There are special circumstances which are unique to the Eubank property which are not applicable to any "other parcels, structures or buildings in" the UTR zone district. The Unit was built 30 years ago as part of a high-density Project. The Project was approved as a lodl!e. It was anticipated that every unit would be used primarily for residential purposes. A few of the units, including Mr. Eubank's, could also be utilized for office space. Over the past ten years, every other unit which had been used as an office has been converted back to residential use. Although the City did not deny any other unit owner the right to convert his or her property back to residential use, it 6 Land Use Regulations, Section 26.108,040(A)(3). ,-. FREILICH, MYLER. LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 5 now seeks to block Mr. Eubank's efforts to follow suit. This problem exists not because of any fault on the part Mr. Eubank, but because the passage of time has obscured the general understanding that every unit in the Chateau Chaumont Condominiums was primarily intended for residential use. It would be unfair to prevent Mr. Eubank from making residential use of his property when there are 24 other units being used for that purpose in the same building. To Mr. Eubank's knowledge, no other unit in the LITR district faces this vexing problem, m. Conclusion For the reasons stated above, Mr. Eubank respectfully requests that the Aspen Board of Adjustment grant him a variance from the dimensional requirements applicable to the building in which his Unit is located so he may convert his property back to residential use. If the variance is granted, he will make all reasonable changes required by Community Development staff to bring the Unit into compliance with the current health and safety requirements of the Aspen Land Use Regulations. Sincerely, FREILICH, MYLER, LEITNER & CARLISLE E. Michael Hoffinan cc: Dale Eubank '. Attachment 8 County of Pitkin } } State of Colorado } SS. AFFIDAVIT OF NOTICE PURSUANT TO ASPEN LAND USE REGULATIONS SECTION 26.52.060(E) !, MICHAEL HOFFMAN , being or representing an Applicant to the City of Aspen, personally certify that I have complied with the public notice requirements pursuant to Section 26.52.060(E) of the Aspen Municipal Code in the following manner: I, By mailing of notice, a copy of which is attached hereto, by first-class postage prepaid U.S. Mail to all owners of property within three hundred (300) feet of the subject property, as indicated on the attached list, on the ~ day of Apr i 1 , 199 ~ (which is 15 days prior to the public hearingdateof Mav 13,1999), 2, By posting a sign in a conspicuous place on the subject property (as it could be seen from was posted and visible continuously from the 3 QtJaay May, 199~. (Must be posted for at least photograph of the posted sign is attached hereto. C~I-- ~ Signed before me this 11 tDay of May 199~.by E. Michael Hoffman WITNESS MY HAND AND 0 ICIAL SEAL lZ)< fhSa- z APPLICANT: Dale Eubank, Represented by Michael Hoffman ADDRESS: 731 E. Durant (Unit 7A, Chateau Chaumont Condominiums) REQUESTED ACTION: Variance Pursuant to the Aspen Municipal Code, in order to authorize a variance from 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, 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. 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"t)~(DO "'0" ='~s-"'" ~CD ~nBg- .... ...g,. ii '" S' ---,-...---.....- A "COATES RBD&WAIDRON Real Estate. Rentats . Property Manallemenl January 21,1999 David J. Myler Freilich, Myler, Leitner & Carlisle 106 South Mill Street, Suite 202 Aspen, CO. 81611 RE: Chateau Chaumont Condominiums Dear David, In conjunction with the initial construction of the Chateau Chaumont Condominiums in 1968, Units 7 and 7A were combined by a spiral staircase. Unit 7A, which is directly below Unit 7, was constructed with three (3) bedrooms, one (1) bathroom and a family room. The combined units were purchased by me upon completion and were occupied and utilized by me and my family as a residence for at least two (2) years thereafter. In 1970 or 1971 I removed the staircase connecting the two units and sold Unit 7. I retained ownership of Unit 7 A which remained vacant for a short period of time and was ultimately converted to office space. The conversion did not involve any major alteration to the configuration of the rooms within the unit. The rooms in Unit 7A which were previously used as bedrooms were simply converted to offices. In 1978 I sold Unit 7A to Dale Eubank who occupied and used it as a professional office space. ~~~7 ""FJeligh C. Coates, JI':"'" .l;;.AtJ Ia " !f) Aspen Office: 720 Easl Hyman Avenue. Aspen. Colorado 8151 t . (970) 925-1400 . FAX (970) 920.3765 c::.....-_... ""I........ nf"'t p...... "".10::1"\ a 1:::..:._,.'1. c::......._...... r.....I_ . c::................... Ul11;1lnP rnlnnllrln III"" 'Ii I01n\ 09'..41M . FAY (o1nl 09'."'011 5/1.3 /qq CITY OF ASPEN BOARD OF ADJUSTMENT NAME OF PROJECT: lArJ lT9:I==-=r- ~ I f::.~ C tt'A-(..{)'''1.o~ r- CITY CLERK: SMt.-lS Lon-hM STAFF: S-I'rt2...f\ it+oNCA S WITNESSES: CD M.t1<E ~AJ <2) 'D4L e a.t 13M t<.. CID ~ ~DL-Fo~ @ <ID @ Staff Report YES Affidavit of Notice ~ - ~s liJ--kt-e pmv:'c:f'€"d \.... -=m Cohj Af1c-(VleN( So ) Board Criteria Sheet EXHIBITS: o 8) o -I 'I orf'~ Cntena.. S h.e..et-s fD COA-~ L...e:.l v ~ ~~2~J'-:~~ A<>"~' VOTE: YEs-4- NO-L CHARLES PATERSON YES~O / RICK HEAD YES -)(0 V HOWARD DELUCA YESJ{"NO_ JIM IGLEHART DAVID SCHOTT YE~1j.O_ YES~O_ YES_ NO_ BOAFORM,DOC LAW OFFICES FREILICH, MYLER, LEITNER & CARLISLE A PARTNERSHIP INCLUDING PROFESSIONAl CORPORATIONS IN ASPEN COLORADO A1TORNEYS AT LAW DAVIDJ. MYLER, P.C.' E. MICHAEL HOFFMAN I SHANE J.IIARVEY L 106 SOUTH MILL STREET SUITE 202 AsPEN. COLORADO 81611 IN KANsAS CITY. MIssoURI FREILICH. LEITNER'" CARLISLE AlTORNEYSATLAW F ACSIMll...E (970) 9204259 TELEPHONE (970) 920.1018 ROBERT H. FREILICH. P,C. ~',' MARTIN L. LEITNER. P,C.' RICHARD G. CARLISLE. P.C.' STEPHEN 1. MOORE. p,e ' s. MARK WHITE '-' KYLE E. FOOTE' ADl4lfTEDlIOCO' .<llWll"IEDlIOMo'.CA'.NY'.NC' CERTIFIED LAND USE PLANNERS MICHAEL 1. LAUER, Alep JENNIFER K. 6ARREIT, AlCP KIM S. BROPHY, AJCP April 26, 1999 Aspen Board of Adjustment Aspen Municipal Government 130 S. Galena Street Aspen, Colorado 81611 Re: Request for Variance - Chateau Chaumont Condominiums, Unit 7A (the "Unit") Dale Eubank, Owner Gentlemen: By this correspondence Dale Eubank is requesting that the Aspen Board of Adjustment grant a dimensional variance to Unit 7 A of the Chateau Chaumont Condominiums (the "project")I, which he has owned and/or occupied for over 20 years. Mr. Eubank no longer makes use ofthe Unit as an office and he would like to utilize it occasionally as a place to stay when he comes upvalley from his home in Carbondale. The variance is needed because the City has taken the position that Mr. Eubank may not use the Unit for residential purposes, even though residential use is permitted in the LrrR zone district and despite the fact that 24 other condominium units in the Project are now used as residences. Mr. Eubank has attempted to sell the Unit "as is" for use as an office, but has not been successful in doing so. I. Proiect Back!!:round The City has taken this position because one of the dimensional limitations imposed on ~ structures in the LrrR zone districts relates to density. One thousand square-feet of lot area is required for each bedroom constructed in a multi-family dwelling. The Project is located on a 12,000 square foot parcel ofland,2 and houses many more bedrooms than would be allowed under current zoning. The current density of the Project would represent a violation of the Aspen Land Use The Project is located on the southwest side of the intersection of Original and Spring Streets. 2 Lots F, G, H and I, Block 107, City and Townsite of Aspen. F,REILIqI. MYLER, LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 2 Regulations, but for the fact that the density of the Project has been "grandfathered" as a nonconformity provisions of the code. At the time it was constructed in 1967 and 1968, Chateau Chaumont adhered to the density requirements of the zone district which then applied to the land. As approved, the Project required only 375 square feet oflot area for each unit. The Project was completed late in 1968. No units have been added since then. Because it was zoned C-l under the 1963 City of Aspen Zoning Code, certain commercial use could be made of the units, Under the Project's Condominium Declaration eight of the units were designated for both residential and business use, Mr. Eubank's Unit was among those eight. His Unit was first owned by Nick Coates, who used it as a residence for over two years. Mr. Coates then separated the Unit from its adjoining space and converted it to office use.3 Mr. Eubank has employed it as an office since the late 1970s. Even after zoning for the area no longer permitted office-type use within the zone district, many ofthe "Business Units" were utilized for that purpose as a nonconformity. All ofthe Business Units other than Mr. Eubank's have now been converted back to residential use. The last of these conversions was carried out in September of 1997" II. Standards for Grantine of Variance Section 26.108.040 of the Land Use Regulations establishes the standards to be applied by the Board of Adjustment in its consideration of a request for a variance. In order to authorize a variance from the dimensional requirements of Title 26 [of the Aspen Municipal Code] the Board of Adjustment shall make a finding that the following three (3) circumstances exist: I. The grant of variance will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Comprehensive Plan and this title; 2, The grant of variance is the minimum variance that will make possible the reasonable use of the parcel, building or structure; and 3 A letter from Mr. Coates describing his use of the Unit is enclosed herewith as Exhibit "E", 4 Unit 23; which is currently owned by Jane Geddes and Gigi Fernandez. A building permit was issued by the City for the conversion of this unit back to residential use. f.REILIC~ MYLER, LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 3 3. 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. Mr. Eubank asks that you grant him a variance from the density limitation of the Code. We urge you to grant his request because each of the three required findings are present in this case. A. Consistencv with Asoen Area Comprehensive Plan The grant of a variance here is generally consistent with the purposes, goals, objectives and policies of the Aspen Area Comprehensive Plan ("AACP") and the Land Use Regulations. One of the "visionary themes" which underlay the 1993 AACP was to "revitalize the permanent population, to bring back local serving businesses into the Aspen Area and to revive the vitality that previously characterized Aspen. Irnolicit in this vision is a recognition that densitv increases above current levels will occur within the Citv to accommodate this revitalization."5 Mr, Eubank recognizes that the density of the Chateau Chaumont Project exceeds that which would be allowed if development approval was sought today. However, it is an existing building and has housed visitors and locals for over 30 years. Conversion of his Unit will not cause an appreciable negative change for the community. Use of the Unit as an office generates traffic and other impacts for the neighborhood. Conversion to residential use may marginally increase some ofthese impacts and decrease others (such as traffic). More importantly, residential use of the Unit will allow Mr. Eubank to eventually sell it -- most likely to a local person or family. The Unit's physical characteristics, especially below-grade siting, will keep its sales price low, by Aspen standards. In keeping with the goals of the 1993 AACP, approval of the conversion of this unit to residential use will create a de facto affordable housing unit, one which allow the owner to participate in appreciation in the housing marketplace. The City has taken the position that Mr. Eubank's conversion of the Unit back to residential use requires a variance because the number of bedrooms in the entire Project exceeds that allowed under current zoning. If this decision is allowed to stand, its effect will be to substantially punish Mr. Eubank for the nonconforming aspects of the Project as a whole. That result is unjust. Over the past year Mr. Eubank has attempted, without success, to sell the Unit as an office. Real estate professionals have explained that there is little interest in office use of the Unit because most of those who might utilize it for that purpose have moved downvalley. If Mr. Eubank is not allowed to make residential use of the Unit, he will be denied the meaningful benefits of ownership of this property. The draft AACP Update of April 1999 properly voices frustration with this type of bureaucratic decision-making. "The relationships between the citizenry and the city government need improvement. More open and sincere communications are badly needed. . . . Rather than creating " 51993 AACP, P 6. ~ILIC1f, MYLER, LEITNER & CARLISLE Aspen Board of Adjustment April 26, 1999 Page 4 new rules we should creatively solve problems. Let's encourage more citizen-inspired contributions, while being sympathetic to excessive demands placed on our government. . . . We should become closer partners." Mr. Eubank's request for a variance from a regulation which deals not with individual condominium units but with the Project as a whole represents an opportunity for creative, cooperative problem solving. B. Minimum Variance for Reasonable Use of the Premises As mentioned above, demand for the Unit as an office has diminished over the years because professionals who might wish to make use of the space in that way have moved Down Valley. As also previously discussed, although use ofthe Unit for residential purposes may cause some negative impact on the neighborhood, traffic and other effects of the Unit may actually be reduced by a change to residential use. The bottom line, however, is that there are 24 units currently used for residential purposes within the Project. Residential use is appropriate for this property. C. Ratification of Staff Decision will Result in U nnecessarv Hardship In evaluating a variance request, the Board of Adjustment must determine whether "literal interpretation and enforcement" of the terms of the code will cause unnecessary hardship or practical difficulty to the applicant. In determining whether an applicant's right would be deprived, the board shall consider whether either of the following conditions apply: a. 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 b. Granting the variance will not confer upon the applicant any special privilege denied by the Aspen Area Comprehensive Plan and the terms of this title to other parcels, buildings, or structures, in the same zone district" There are special circumstances which are unique to the Eubank property which are not applicable to any "other parcels, structures or buildings in" the urn. zone district. The Unit was built 30 years ago as part of a high-density Project. The Project was approved as a lodge. It was anticipated that every unit would be used primarily for residential purposes. A few of the units, including Mr. Eubank's, could also be utilized for office space. Over the past ten years, every other unit which had been used as an office has been converted back to residential use. Although the City did not deny any other unit owner the right to convert his or her property back to residential use, it 6 Land Use Regulations, Section 26.108.040(A)(3), FREILIC)l. MYLER. LEITNER & CARLISLE . ' Aspen Board of Adjustment April 26, 1999 Page 5 now seeks to block Mr. Eubank's efforts to follow suit. This problem exists not because of any fault on the part Mr. Eubank, but because the passage of time has obscured the general understanding that every unit in the Chateau Chaumont Condominiums was primarily intended for residential use. It would be unfair to prevent Mr. Eubank from making residential use of his property when there are 24 other units being used for that purpose in the same building. To Mr. Eubank's knowledge, no other unit in the LrrR district faces this vexing problem. m. Conclusion For the reasons stated above, Mr. Eubank respectfully requests that the Aspen Board of Adjustment grant him a variance from the dimensional requirements applicable to the building in which his Unit is located so he may convert his property back to residential use. If the variance is granted, he will make all reasonable changes required by Community Development staff to bring the Unit into compliance with the current health and safety requirements of the Aspen Land Use Regulations. Sincerely, FREILICH, MYLER, LEITNER & CARLISLE E. Michael Hoffman cc: Dale Eubank 1"'. .- ...../ LAW OFFICES FREILICH, MYLER, LEITNER & CARLISLE ,""""'" A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS IN ASPEN COLORADO I 06 SOUTH MILL STREET SUITE 202 AsPEN. COLORADO 81611 IN KANSAS CITY,MIssoURI FREILICH, LEITNER & CARLISLE ........ ATTORNEYS AT LAW DAVlDJ.MYLER.P_C. ' E. MICHAEL HOFFMAN I SHANE J. HARVEY I ATTORNEYS AT LAW ADMITlUlJNCO' FACSIMILE (970) 920-4259 TELEPHONE (970) 920-1018 ROBERT H. FREILICH, P.e. 1.1' MARTIN L. LEITNER, P,C.' RICHARD G. CARLISLE, P.C. 1 SIEPHEN J. MOORE, P.C.' S, MARK WHITE l.l KYLEE. FOOTE' ADWTImINMo',CA',Nl',NC' CERTIFIED LAND USE PLANNERS MICHAEL J. LAUER, AICP JENNIFER K. BARRE1T, AICP KIM S. BROPHY,AICP February 11, 1999 David W. Hoefer, Esq. Office of the City Attorney 130 S. Galena Street Aspen, Colorado 81611 By Hand Delivery Re: Chateau Chaumont Condominiums, Unit 7 A (the "Unit") Dale Eubank, Owner ,.---.. - Dear David: I have enclosed the mailing list to which Dale Eubank's notice was sent according to the affidavit we provided yesterday. Thank you for your assisting us in this procedural matter. . Sincerely, FREILICH, MYLER, LEITNER & CARLISLE E. Michael Hoffinan i.' i,' I MORGAN LORI PO BOX 133 SOUTHAMPTON MA 01073 '<ANN RONALD '<ANN MARIA BEATRIZ DE OLIVEIRA COSTA AL MIN ROCHA AZEVEDO 961 CASA SAO PAULO SP BRAZIL 01410-003 FERREIRA FRANK FERREIRA ELAINE M 116 WHEELER ST REHOBOTH MA 02769 CHATFIELD CHARLTON H 12 CORRIGAN LN GREENWICH CT 06831 GOODROE SHIRLEY A 518 WASHINGTON MALL REAR CAPE MAY NY 08204 c., ,ADLEY EDWARD JR 60 MINUTES C/O 555 W 57TH ST NEW YORK NY 10019 NEUMAN MARK A & NANCY 11 THIRD ST RYE NY 1 0580 SLATER ALEXANDER B PO BOX 491 LOCUST VALLEY LONG ISLAND NY 11560 ROBINSON MARY ALICE BURKE PO BOX 522 WELLESLEY ISLAND NY 13640 CZEK ROBERT R ._' LOVERING AVE WILMINGTON DE 19806 GABERMAN RICHARD M & PAVA JEREMY TRUSTEE GRINSPOON HAROLD CHILDREN'S FAMILY TRUST 380 UNION ST STE 300 WEST SPRINGFIELD MA 01089 DIRKES JAMES T DIRKES AND COMPANY POBOX 942 MARBLEHEAD MA 01945-0942 PERRY ANTHONY 1908 SHELBURNE RD SHELBURNE VT 05482 SCHWAB RICHARD M DR 35 WILD DUCK RD WYCKOFF NJ 07481-3329 OTTO GERDEAU CO 82 WALL ST NEW YORK NY 10005 GLUCK CAROLE E 176 E 71ST ST NEW YORK NY 10021 HANSEN CHRISTOPHER C PO BOX 773 TUXEDO NY 10987-0773 RED FLOWER PROPERTIES CO A PARTNERSHIP ONE HUNTINGTON QUAD STE 2S15 MELVILLE NY 11747 MCGUIRE FRANKJ 1991 RESIDENTIAL TRUST 1827 SENECA ST BUFFALO NY 14210 " BOHLEN JANETT UNO 1/2 LAMONT ADA JUNO 1/2 4710 QUEBEC ST NW WASHINGTON DC 20016 ~ HAROLD GRINSPOON CHILDRENS FAMILY TRUST A MASSACHUSETTS TRUST 380 UNION ST WEST SPRINGFIELD MA 01089 FERNANDEZ GIGI 822 BOYLSTON ST #203 CHESTNUT HILL MA 02167 DAY HARRY 0 & JERROLD K PO BOX 0 MIDDLE HADDEN CT 06456 LUPOW SCOTT & ANITA S 1907 COUNTRY CLUB DR CHERRY HILLS NJ 08003 SCHNURMAN ALAN J SCHNURMAN JUDITH - JT TENANTS 63 WALL ST NEW YORK NY 10005-3062 SILVERSTEIN SAMUEL C & JO ANN 110 RIVERSIDE DR 9B NEW YORK NY 10024 CARRILLO JOSEPH & MARIE 236 HENRY ST BROOKLYN HEIGHTS NY 11201 DIRKES PETER R 324 FOXWOOD LN MILL NECK NY 11765 DUNN DOROTHY V & DENNIS G 705 RIDGE RD ORWIGSBURG PA 17961-2221 HELLER STEVEN B 4916 ROCKWOOD PKWY WASHINGTON DC 20016 LEVITT MADEL YN M 50% LEVITT JEANNE S TRUSTEE 49% & ET AL f'001 MONTROSE RD STE 600 C/O LIS CORP ":KVILLE MD 20852 NAGEY DAVID A & ELAINE TRAICOFF 3 BEACH DR SHERWOOD FOREST MD 21405-9999 POAG SARA M & MORGAN REES PRICE JANIE PACE ALL AS TENANTS IN COMM 1801 CARLISLE RD GREENSBORO NC 27408-5715 WHITE ROYAL 0 & JOANNE M 2000 SOUTH BAY SHORE DR #7 COCONUT GROVE FL 33133 WHITMAN WAYNE & FRAN UND 1/2 INT PO BOX 457 CLEARWATER FL 33757-0457 ~,,,LKEN STEVE SKILKEN LYNNE 383 S THIRD ST COLUMBUS OH 43215 KLlKA YVONNE S 32415 BURLWOOD DR SOLON OH 44139 BLEDSOE WALTER A JR 804 MERCHANTS BANK BLDG TERRE HAUTE IN 47807 JEFFRIES JANET ODLE TRUSTEE OF THE JEFFRIES JANET ODLE TRUST 500 HUNTINGTON DR ANN ARBOR MI 48104 3Y THOMAS N REV LIVING TRUST _ 17 PELLETT DR FENTON MI 48430 BERKOWITZ KAREN PO BOX 35 BROOKLANDVILLE MD 21022 MARCUS LOUIS 601 OLD CROSSING DR BALTIMORE MD 21208 SALMON DAVID D JR PO BOX 15514 ARLINGTON VA 22215 CRAFT LESTER R JR 2605 SPRINGWOOD DR GREENSBORO NC 27403 ENSIGN BEVERLY C 1/21NT DELAPLANE MURIEL C 1/2 INT 88 INDIAN SPRINGS DR FORSYTHE GA 31029 PARKER FAMILY TRUST 1507 WALDEN DR MC LEAN VA 32101 BABCOCK HELENA PO BOX 2146 FT LAUDERDALE FL 33303 ABRAMSON RUTH RESIDENT TRUST #1 1/31NT 2315 ESPANA REAL WEST PALM BEACH FL 33415 WHEELER KIPPERT R 3211 BONNYBROOK DR W LAKELAND FL 33803 LEWIN DON C 7101 DIXIE HWY FLORENCE KY 41042 BAILEY LEAH S TRUST PO BOX 851 BEREA OH 44017 DE CONINGH EDWARD H JR 80 PHEASANT RUN DR CHAGRIN FALLS OH 44022 PRICE JAMES L PRICE JULIA P 32670 WOODSDALE LN SOLON OH 44139 HOFFMAN FRANCIS P TRUSTEE OF HOFFMAN REV TRUST 231 INVERNESS LN SCHEREVILLE IN 46375 PIZZUTI WILLIAM J 750 HANNA BIRMINGHAM MI 48009 GRABB WILLIAM C DR GRABB COZETTE T 1961 BOULDER DR ANN ARBOR MI 48104 SCHUBINER CRAIG E PO BOX 7067 BLOOMFIELD HILLS MI 48302 " RADER RONALD B 6790 BURTONWOOD W BLOOMFIELD MI 48322 LIVINGSTON DAVID R 1003 PARCHMENT DR SE GRAND RAPIDS MI 49546 UKENA FAMILY CONDOMINIUM 1704 BURNETT AVE AMES IA 50010 '. GORDON LETICIA 4101 QUAIL PARK DR W DES MOINES IA 50265 NEWHOUSE WILLIAM NEWHOUSE SANDRA. JT TENANTS 5640 CHRISTMAS LAKE PT EXCELSIOR MN 55331 CORNELISSEN TOM 3134 DEAN CT MINNEAPOLIS MN 55416-4386 MAXON BERT J QPR TRUST 1125 LAKE COOK RD APT 406 NORTH BROOK IL 60062 HARPER ROBERT H 391 SHERDIAN RD WINNETKA IL 60093 vot:HRL Y JEAN ANCILLARY TRUSTEE RACHLlS JULIE B TRUST OLD KENT BANK 105 S YORK ST ELMHURST IL 60126 FRIEDMANN PHILIP & DEBORAH 1325 N ASTOR CHICAGO IL 60610 VIEREGG R TODD 999 N LAKE SHORE DR CHICAGO IL 60611 BANACH MARY ANN 1931 N WINCHESTER AVE CHICAGO IL 60622 S LUCIANNA G ~,JORTLAND PL ST LOUIS MO 63108 GORDON LETICIA 4101 QUAIL PARK DR W DES MOINES IA 50266 MOSCOE THOMAS D & MARLENE 14700 ROCKBOROUGH RD MINNETONKA MN 55345 RANDALL WILLIAM C DDS 4668 NINE OAKS CR BLOOMINGTON MN 55437 LEBOVITS & MOSES 10318 GLENBARR AVE LOS ANGELES CA 60064 PARTRIDGE JAMES J & JEAN C 140 COVINGTON DR BLOOMINGDALE IL 60108-3105 SHODEEN KENT W TRUST NO 1 17N1STST GENEVA IL 60134-2220 GRAY JOHN D GRAY ANN MILLIGAN - JT TENANTS 1416 N ASTOR ST CHICAGO IL 60610 ASPEN CONDO LLC FARAGO JOSEPH V REALTORS L TO C/O 2034 N CLARK ST CHICAGO IL 60614 WALLEN WILLIAM L 1/10 INT MARCHIONNE ANNE C TRUSTEE 5/10 INT 4136 N KEDVALE UNIT C CHICAGO IL 60641 BRONSON RICHARD L & BONNIE L 208 JUNIPER LEE'S SUMMIT MO 64064 '. 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