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HomeMy WebLinkAboutlanduse case.boa.620 E Hyman Ave.002-84 'j. :0;~Y:ji::~1~~ i,~ii::trt:.ii!<r/;:;L(}'S:k i~;;I::s' ;)d:;,,;;;,:j;:::::Cl;;,'nJi:J;,{:/[~.r;';d~~:~;~~:ir;;:qir;;~3i~;;~,Z!:~;: ;>i;..~Z' ~~ '. r . - . .' e. ,', ~......-, .", ......J,-'" NOTICE OF PUBLIC HEARING Case No. 84-2 BEFORE THE CITY OF ASPEN BOARD OF ADJUSTHENT 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 Council Room, City Hall, Aspen, Colo- rado, (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 24, 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, then you are urged to state. yo~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. The particulars of the hearing and of the requested variance are as follows: Date and Time of Meeting: Date: Time: Thursday, February 9, 1984 '4:00 p.m. Name and address of Applicant for Variance: Name: Address: Abetone Ristorante Dan Sur in and Ermano Masini represented 620 East Hyman, Aspen, Colorado 81611 description of property: by Paul Rubin, architect I Location or Location: Descriotion: . Abetone Ristorante 620 East Hyman Aspen, Colorado 81611, Variance Requested: The building is a non-conforming structure as it exceeds the F.A.R. requirement in the C-l zone category. Section 24-3.4, (area and bulk requirements). Section 24-13.3 (a)-no non-conforming structure may be enlarged or altered in a way which increases its nonconformity. Applicant appears to also need a variance to reduce open space. Section IiJiJdorlacff''\r3PfaB8J!<) '(Please cross out one) ~~ Permanent THE CITY OF ASPEN BOARD OF ADJUSTMENT BY Remo Lavaqnino, Chairman Barbara Norri~; Deputy City Clerk ... . .._. H.. , ,. 0."" '," ',' ',..' ,,il ~..\j\ 1 I I ~ U f IU-')l.J...J' i a..~, " CITY Of AW[Ij ffL/, c~ /!{flL/ /-'2,;{' Y;f /}, 3tf: /7 "ry' DAT[ 12/28/83 . , iI,,' '....,. I \ APPElLMlT PAUL RUBIN/ENVIRODFSIGN,.' ARe~IITEOT ,PGR. ,'..J" .. " ','.,':..,... ABETONE RISTORANTE' " . ,(J ./I./'rtJ5 AOOflESS CASE tlo. PO BOX 968, BASkLT, co 81621 PHO/IE 927 3636 . OIlIl[R DAN SURIN/ERHANO MASINI ADDRESS 620 E. Hyman - Aspen, C~ 816n - , tC1CllTI ON OF PUJPERTY 620 E. HY~IAN ST . ASPEN CO 816n . .-: lStrcet. & ~lumber of Subdivision B1L. & Lot No.) , . . , . .. Buildin1 Permit' Application and prints or any other pertinent ~ data must accompany this application. and will be made part of CASE NO. . , ' 'THE B0A?D WILL RETURN THIS.APPlICATION IF IT DOES NOT CONTAIN ALL THE FACTS IN QUESTION. . DEst:RIPTlOilCf PROPOSED EXCEPTIOIl SHOHH1G JUSTIFICATIO!'lS: .' . " SEE ATTAOHED . . . . . . . . , . 11111 you be :represented by courp;el " ~ . -. . .,. . ? Yes No J( " , , ' SIGHED, ~~. .-: . Appe lant, ' . PROVISIONS OF THE ZONING ORDINAnCE REQUIRING THE BUILDING INSPECTOR TO lfORWARD THIS APO.ICATlON TO THE BOARD OF A, DJlJS, HIENT ,AND REASON . FOR NOT GRAiH:NG: 1~"'L ~ ~ ~ ~~~ ~ Ov:>vI ~: ~ P.A,R. ~ ~'H<C-;I ~C-~0"k1.' (iflu'2q-J,Y;. {~~ ~)~~.L<!-15.3 CQ)N.o~, '. S~ ~ ~~ 1ft' alii;;;;),;', ~ ~ r~ w~ ~ ~'~~, rif~#~~~~~v~~ . off-g{o"",.~.~~..'t~?'f(M<4 4:47 :{ ~ ..' '-, - . u~ Signed ' .. , . DATE - f~~ j,y v 'Status ,. . ' ',' . '[R~IT REJECTED. DATE " . rrLICATIDN .FILED DECISION DATE IF /lEAnING , . i~ I LEO ..- . S[CflOf.nV , Yf~L ABETONE RISTORANTE 620 E. Hyman ADJACENT PROPERTY OWNERS 638 E. Hyman - Patio Building Jack S. & Gesine Crandall PO Box 1066 Aspen, CO 81612 307 S. Spring St Mountain States Communications Inc. PO Box 2238 Aspen, CO 81612 633 E. Hyman Boris M. & Dora L. Lemos and Donald M. & Jeannie M. Lemos PO Box 321 Aspen, CO 81612 616 E. Hyman E. Norris Taylor & Goodrich H. Taylor # 1 602 E. Hyman Aspen, CO 81611 610 E. Hyman Patricia Moore 610 E. Hyman Aspen, CO 81611 E. Hopkins - Lots D&E - Vacant Leslie Jean Smith PO Box 1645 Aspen, CO 81612 623 E. Hopkins Ann E. Chapman PO Box 3150 Aspen, CO 81612 629 E. Hopkins W. R. Walton PO Box 665 Aspen, CO 81612 ,- '-cc *",", "'-''''' .....J ',_._,,~ "";"""'. -- March 5, 1984 MEMO Attention: Aspen Planning and Zoning Commission The Board of Adjustment on February 9, 1984, de- liberated case #84-2/Abetone Ristorante. The Board moved to distribute copies of the minutes of that case to the planning and zoning commission after lengthy discussion of the case and after the appli- cant requested to withdraw the application. Attached please find a copy of those minutes. Thank you, 1.3M4t<A./ Barbara Norris Deputy City Clerk L - " .. ." (OJ>-, f if -J-. 0.,.' January 17, 1984 " " " ~. ," , , ..::. ~ , , '.- . ' 'J: Board of Adjustment City of Aspen Aspen, Colorado '\. , , , ,F " '-", " , , '. ':\ ~ !, .-\" ", ' -\ " " ~\ '" '"1 1" " " I' , , i '~ ~, I I am representing Mr. Dan Surin and' Mr. ,ErIlllUlO Ma'Bi~~' ~ners' e~"AQet~~ ': 1 Ristorante located at 620 E. lf7man St. Thel have 1'equelt.6d the right to ' \ enclose an existing outdoor dining area with aperl1ll1hent structure. 'Arecap of the process leading to a request for a variance t6llows: .,' Dear Board Member, ,,' '0' \ \ .~'<> . ,\,1" I '.' , , , , " The government process to secure the right to do so was officially, , , commenced on October 20, 1983 at the City Planning & Zoning Co~ission,meet~4 The Planning Office's original recommendation for approval was met b,y questiBns as to the existing FAR for the 620 HYman Building. These questions pointed out confusion regarding the legality of such approval. The attached Memorandum dated October 18 from Colette Penne. Planning Office. and the minutes of the above mentioned Planning & Zoning meeting; Oct 2O~ 1983. are attached fBr you:r perusal and background information. ' ~, I \ \ 'i 'j.,. , At this juncture, I researched the question of the FAR of the property in " '.', ,', : question a~ resub~itted my client's request with documetl. ,tati.on of 1111. .' ii. '.ndiDe.., '.Il....ri.. ,j;'\.j;.'.'1}." Please renew subm1ttal letter dated November 17. 1983 to Alan Rlc~,~~ic~: ,;\ 'i,.l':1'\::t,\, can serve to explain my findings regarding the question of F~ arid ii;t.,;;,U "', \",', :,:\r:, ramifications for my client's request. 'I 8JI inclUding'inthis;'lNbmitta!.'-tbil :':\"(\;"':,:t;';' . . . _ ' , . . .-., "',-'-' ..'.,t.., 'f--.. Plann1ng Office Recommendahon Memorandum and the mi~tes, ~f ~ SUbll~ueut' ,Y\~;' P & Z meeting, both dated December 20, 1983 aabackground' infOl'lllatij)J4 . :, ; , ",,~~., !. \; ,"j ~ , " I,',!.,' "..:,~ \ '. Mr. Sur in and Mr. Masini are requesting a variance r~laf.lng tp', the zoiling' laws of the City of Aspen under Sect. 2-2.2 of. the Aspen City Code' which will,' \. permi t the Planning & Zoning Commission to grant an exemption' fioom GMP' and allow. the enclosure of the existing outdoor dining area. ' , \\ '," , The attached conceptual plans and documentation referred to above clearly point out the negligible impect regarding the general purPose. cOdes and general plan that the granting of such a variance would affect. The reasons for this request are: As pointed out b,y Mr. Gary Esary, City of Aspen AttQ1'neYi members of the City P & Z; and Colette Penne of the Aspen, Pitkin County Planning Office. no one has been able to prove or INbstantiate whether the area in question was FAR or not. " The unanimous agreement that the enclosure presents negligible impacts and the fact that, no , other building, to my knowledge. was approved under Ordinance 19 and ' : (': envirodesign, ltd., p.O. box 968, paul rubin basalt. colorado 81621 927-3636. john katzenberger .--. c ~~'" - '...# .....' Board of Adjustment January 17,1984 Page Two therefore the question of FAR and its ramifications became later clouded and confused, are spelled out clearly in the attached documentation. This hardship and the conditions surrounding it are not the result of my client's actions. The granting of such a variance is essential to my clients for several reasons. The existing commercial dining space in question not only cannot be used a large portion of the year, but creates a snow and trash catchment during much of the year. The addition would alleviate this situation as well as eliminating a spring standing water and resultant drainage surge b,r handling runoff and drainage in a more timely fashion. The area in question as exists represents a visible greens pace amenity in the summer months. This amenity as pointed out b,r the conceptual plans, would be extended to a year round situation by the glass enclosure. This hardship further impacts my clients and their customer's use of this existing commercial space through their inability to enhance the thermal properties of the space in question. The only access to the outdoor dining area is through large glass doors. The ability to correct this situation through the addition of the enclosures would not only add to the thermal comfort of my clients and their patrons but a variance would afford them the opportunity to passively solar heat not only the addition but would add between 95,000 to 230,000 BTU's/per day to the existing space, depending on the economic realities of moveable insulation. The following is intended to summarize the fact that the granting of such a variance will not adversely effect the general purpose of the City codes, and comprehensive plans. The Planning Office addressed such in their Memo, October 18, 1983, which is attached. a) Visual impact, if any, would be a positive element as pointed out above. The addition is on the lower level and will be virtually unseen from the existing street grade. b) No new employees are to be generated. The 'addition will only replace the serving of meals in the existing bar, thus alleviating a congested and negative current situation. I have submitted changes in the seating at Abetone Ristorante with this request which have been undertaken since the commencement of this government process. In their desire to present a quality experience these seating changes have already diminished the number of seats within the restaurant. A large portion of the dining courtyard is to remain landscaped. c~nvirodesign. Itd" p.o. box 968, paul rubln basalt colorado 81621 927-3636 john katzenberger , 1lJl"'" , , .-'''''''' " , , -' Board of Adjustment January 17, 1984 Page Three c) Given no increase in customer load or employees coupled with evening service only, parking will not be impacted. d) The addition will not effect levels of service and as pointed out, will have a positive effect on the runoff situation. This addition can only enhance the experience of OUT citizens and visitors, both from within and outside. Should you have any questions regarding this request, please feel free to contact me. Thank you for your consideration. ~ ,; ,Sincerely/I , " r; { 'J' ' ; /' I! . ~;- CJv.,..j! l~ '~ Paul Rubin PR:ma Encls. envirodesign, Itd" paul rubin p,o. box 968, basalt. colorado 81621 john 927 - 3636 katzenberQer .-- ',< \ ,"~ ,~ " lJ-J' ~ CJ.,). 7-3/'3C- /0,//1'1[3 ........ '.... ".1 , / \. .~-" MEMORANDUM T.: Aspen Planning and Zoning Commission FR.M: Colette Penne, Planning Office RE: Abetone - GMP Exemption .ATE: October 18, 1983 LOCATION: Garden Level, 620 East Hyman Avenue ZONING: C-l APPLICANT'S REQUEST: Approval of a GMP exemption per Section 24-ll.2(p) for an expansion of Abetone Ristorante of less than 500 sq. ft. REFERRAL COMMENTS: The Engineering Department made the following state- ments: "1. It would appear that the proposed room will enclose the existing drain inlet in the outside area. Some further detail regarding how drainage and snowmelt in the lower level will be handled would be appropriate. 2. Some additional evening parking need will be generated by the enclosure of the outside area but it should not be significant and will not conflict with the daytime activity of most surrounding businesses." PLANNING OFFICE REVIEW: The development activity which may1be exempted from complying with GMP allotment procedures by the Planning and zoning Commission per Section 24-l1.2(h) is "the expansion of an existing commercial or office, use in a builidng by not more than five hundred (500) square feet, excluding employee housing, for the pur- poses of providing a small addition of space which can be shown to have minimal or manageable impact upon the community and can be justified by the benefit which will accrue to the Community." The determination of minimal or manageable impact on the community should consider the following: (1) A minimal number of additional employees will be generated by the expansion or the applicant will provide additional employee housing. (2) A minimal amount of additional parking demand will be created or that parking can be accommodated on-site. (3) That there will be minimal visual impact on the neighborhood due to the project. (4) Minimal new demand is placed on services available at the site such as water, sewer, roads, drainage and fire protection. ~;'!f ;" ~lI" .. .. '. t I , ,~ /* , . :r .. " MEMO: Abetone - GMP Exemption October 18, '1983 Page Two PLANNING OFFICE RECOM- MENDATIONS: The applicant submits that no new employees will be needed as a result of this expansion. Presently, meals are being served in the bar area and this will be eliminated. Also, of the 445 square feet of area, 115 sq. ft. will be landscaping and 330 sq. ft. dining area. ,This, same space has historically been used for a summer season outdoor eating ar~a, The space accommodates approximately four tables. Considering that this space has been used for dining and waiters have been serving meals in the bar area and will not be serving in the bar area when this new space is available for winter use, we believe the case for no new employees is justified. The Engineering Department agrees with the applicant concerning parking and considers that any new generated parking need is not significant. Also, because of operation only in the evening, there is no conflict with the daytime activity of most of the surrounding area. The question of visual impact is not a consideration in this case. First of all, the restauran~is on the lower level and this roof will not be vlsible at street level. Secondly, if the addition is visible, it is considered by this office to be a positive element and not one that would be a negative neighbor- hood impact. This incremental addition will have no effect on existing levels of services. It will have a positive effect on the runoff situation at the site, and will add a passive solar element for the heating and cooling of the interior space. The project architect will be present at the meeting, to discuss the operation of the glazed roof in site drainage and to answer the concerns of the Engineering Department. The limitation of Section 24-ll.2(h) that the maximum cumulative additions within any building can be only 500 sq. ft. is not an issue in this case, since this building has not expanded in this manner previously. The Planning Office recommends approval of a GMP exemption per Section 24-11.2(h) for the proposed expansion of Abetone Ristorante of 445 square feet. , TtLG\' ?uL ,- ~ ' < .~ , - ( '7( I - :::: \) --) ~ MEMORANDUM TO: Aspen Planning and Zoning Commission FROM: Colette Penne, Planning Office RE: Abetone - GMP Exemption DATE: December 20, 1983 BACKGROUND Application was made pursuant to Section 24-11.2(h) for an exemption from Growth Management Competition procedures to enclose the space which Abetone now uses for outside dining. The Planning Office evaluated the request in light of the exemption criteria and recommended that you find there to be "minimal or manageable impact on the community." Upon receipt of comments from the Building Department, we discovered that the 620 Hyman Building (which houses Abetone) is in excess of the allowed floor area. This information would lead us to the conclusion that the application should never have been accepted. The architect for the project, Paul Rubin, feels that the location of this dining area and the history of approvals for the 620 Hyman Building should lead us to conclude that this area not be counted as additional floor area if the proposed enclosure occurs. PLANNING OFFICE REVIEW Some of the concerns you expressed when we briefly discussed this request at your regular meeting on October 18, 1983, were whether this area was included as FAR when the building permit was issued; if this area was intended to be open space; and whether it is considered additional floor area if enclosed now. The C-l zone allows a 1:1 FAR and the Building Department calculates the build-out at 1.83:1, and therefore, non~conforming. This building was exempted from Ordinance 11 (Series of 1975) by Ordinance 25 (Series of 1975) and Ordinance 50 (Series of 1974). This exemption allowed a building to proceed to construction which would not have complied with some provisions of Ordinance 11. Because of this exemption, or possibly because FAR calculations were not explicit, the record is unclear as to whether or not this dining area was included in the floor area calculations. There is evidence that the area was included in occupancy load calculations and it has always been part of the commercial lease space of the restaurant. The Municipal Code requirements in effect prior to Ordinance 11 (Series of 1975) allowed a 2:1 FAR with provisions for additional square footage when a project offered public arcade space at ground level or open space in excess of that required. The evidence submitted by Paul Rubin indicates the possibility that this area was part of the floor area calculation. There is a statement made by Commissioner Johnson at the Planning and Zoning Commission meeting of May 7, 1974, that he "felt the garden level should be included in the floor area ratio." It is not specific to this particular patio space, nor was any action taken on the statement. Ordinance 11 (Series of 1975) states that "in measuring floor area for the purpose of calculating floor area ratio, there shall be included that area within the surrounding exterior walls . The floor area of a building or portion thereof not surrounded by exterior walls ,,~"' . "~,~~..,,..,_.,... .- - , .. MEMO: ^betone - GMf' Excmption December 20, 1983 Pa9c Two shall include any usable area under a horizontal projection of a roof or floor above." The interpretation of these statements could lead to the conclusion that this area was counted if the wall at the sidewalk was considered to be the exterior wall (even though the space was not roofed). Further, the Ordinance states that "for purposes of calculated floor area ratio, there shall be included basement (but not sub-basement) areas except any such basement area devoted to underground off-street parking." Since this area could be considered to be surrounded by exterior walls and does not qualify as open space, it may have been calculated as floor area by being included in the basement (or garden) level. ' The answer to the question of this space being classified as open space is more clear cut. The area is not open space for two reasons: 1. Open space cannot be more than ten (10) feet below the existing grade of the street which abuts said open space. (This space is 10.3 feet below grade.) 2. The open space must be continuous and not obstructed with building appurtenances and appendages. Stairways will be considered obstructions. (This space is accessed by a stairway from the sidewalk.) The current floor area ratio ordinance (Ordinance 11, Series of 1982) includes any area under a horizontal projection of a roof and any question of the inclusion of this space is answered once the roof is placed over it. Since the area is subgrade and the roof is glass, the evaluation of the impact of additional bulk is less than a solid roof above grade, however, an open area will be closed in. PLANNING OFFICE RECOMMENDATION We feel that the record is inconclusive concerning the inclusion of this space in FAR at the time of building permit issuance. We are convinced that any growth or service impact which may result would be very minimal. If you feel the arguments made by the applicant are strong enough to justify issuance of a building permit, you could make the finding that this area should have been originally included in the floor area and direct the Building Department to issue a permit. We are unable to reach this conclusion based on the evidence presented. We find that under today's regulations, the enclosure of the space will increase the degree of non-conformity of the building in terms of F.A.R. Therefore, we recommend that you move to table this appli- cation until such time as a variance from the F.A.R. limitations is obtained from the Board of Adjustments. '. "..-...., ,r'-"" , , ..... ..., Nov~~ber'1'7, 1983 MEMO TO: Alan Richman Aspen, Pitkin Planning Office Aspen, Colorado Dear Ala~, The following will delineate the research I have completed and which we discussed at our meeting of November 15 regarding the Application of Abetone Ristorante. It should serve the Aspen Planning & Zoning Commission's request that I document the reasoning and circumstance which leads to ~ conclusion that my client be eligible for the granting of a building permit ~ the appropriate department when they receive the required plans and materials for enclosing the existing outdoor dining patio. The real property in question was approved as part of the construction project known as the 620 Hyman Building. The approval process included the granting of an ordinance No. 25 series of 1975 which provided that said building was extended an exemption from Ordinance 11 series 1975. See copy of ordinance 25 attached herein. The intent and result of such was that the 620 Hyman Building did not comply with the Floor Area Ratio requirements of Ordinance 11. In reviewing the minutes of meetings of the Aspen Planning & Zoning Commission and of the City Coun~il in conjunction with'the perusal of granted permits both prior to and since the construction of the 620 Hyman Building, it is my contention that the outdoor dining patio has at no time been clearly calculated as either being included or exempted from a FAR calculation. I hope the following will provide you with the information necessary to conclude that the real property in que3tion should have been part of the FAR. 1. Ordinance 11 (e) #1 states that measuring should include floor area within the surrounding exterior walls exclusive of vents, shafts and courts. The area in question is not a court or shaft. (support follows) The same paragraph goes on to require inclusion of areas such as grade deck, balconies, et~. when such areas are necessary for the function of the building. Support for such finding can be provided ~ the fact that Ordinance 11 series 1975 which defines Open Space clearly shows the property in question not to be Ii "court" or open space element in Sect D #2 Open space cannot be more than 10 feet below grade Dining patio is 10.3 feet below grade and even more clearly in Number 4, Sect. D where Open space must be continuous and not obstructed with building appurtenances and appendages. The dining area has always been enclosed with access solely from within the private leased commercial space. :;nv i !'ories iqn, I td )aul rUblli po box (3G8 basait. colorado 81621 927-3636 john katzenberger ,-... -., .q'--.... MEMO TO: y November 17, 1983 Page #2 Alan Richman Such conclusion is further supported qy the intent of calculated commercial floor area provided qy the building department on 7-7-75 which recognizes the area in question as being included for the occupancy loads. Due to the exemption from Ordinance 11, nowhere within the documents and permits is the area in question not counted as FAR since such a calculation was not required. The fact that the area couldn't be open space and was in fact enclosed by walls and a necessary functioning portion can further be supported qy Ordinance 11, Sect. E # 2 that for calculated floor area ratio there shall be included basement areas accessory to the principal use of the building. The dining area clearly fits this description of meeting the "minimum requirements for natural light, ventilation and emergency exit for the applicable occupancy group." Not only was the use and intent of the space in question recognized qy the building department but further support for such can be found in the following minutes: The Aspen Planning and Zoning Commission recognized the intent of plans and use of space on May 7, 1974 when Commission member Johnson stated that patio should be included in FAR (see att~ched). At City Council meeting April 14, 1975 the owner wanted to change use to a theater but discussion pointed to retaining Restaurant use. Such use recognition is consistent throughout the meetings and can be supported qy the designed enclosure and access doors clearly recognized qy the Building Department. My clients lease as previous leases have shown such area as part of the rented c01l1llercial space. It has been reiterated as such qy the inclusion of area in the Colorado State Liquor License. In summation, I should point out that the intent of the laws and objectives of the City of Aspen are in no way impacted by your granting of such a request. I therefore would welcome your recommendation that the Building Department, at the appropriate time, grant my clients a permit to enclose the outdoor dining room. Thank you, envirodeSI\:j11, I td, paul rubin po, box ~;LJ8 t1tiSdit. colorado 81621 john 927 -3636 katzenberger " . .-1."'.- ,adow Mountain meshare (cont) .1blic Hearing c,\~ Business betone GMP xemption - \) . &t-~d;; u /'?! life -2- moratorium resolution. When council passes the moratorium ordinance Gary will ask that the application be tabled for five additional months. He is asking that it be tabled for cne month now because applications have to be tabled to a "date certain" and it is not known for sure if council will pass the moratorium ordinance. Gary also said that tabling the application for five months is not definite, though he anticipates that it will be tabled for five months; at the end of the one month period he may only ask that it be tabled for an additional month depending on Councils' decision. Perry Harvey opened the public hearing. Roger Hunt moved to continue the public hearing and to table action on the Shadow Mountain timeshare project to November 22, 1983 at the request and effect of the City Council on the basis of their action on a resolution for a six month moratorium. Jasmine Tygre seconded the motion. All in favor. Motion carried. Colette Penne of the Planning office informed the Commission that Paul Ruben, representative for the applicant, had come to her at pre-application stage and asked if Abetone Restaurant would be able to put a glass atrium roof over the space now used for outside dining. Colette told Mr. Ruben that it was possible to get an exemption from GMP for a small (under 500 square feet) expansion of floor area ratio(FAR}. The exemption criteria were reviewed and it was thought that the applicant could meet those criteria. Mr. Ruben made the application and after reviewing the application Colette stated in her memo to the Commission dated october 18, 1983, that the applicant did substantially meet the criteria for a GMP exemption. After the memo was written, produced and sent out to Commission members in the packets, Colette Penne recieved a memo from the Building Department indicating that the building was over FAR and therefore non-conforming. Thus, the building cannot be expanded. Colette stated that she should have checked this out in the pre-application stage and that it was an oversight on her part. Colette informed the applicant of the situation saying that the application should not have been accepted in the first place and offered to return the application fee. Colette also offered to explain the situation to the Commission and remove the application from the adgenda. The applicant is unhappy with this because he feels that the solution is not detrimental and has some questions as to whether it is in fact an increase in floor area ratio. The applicant was at the meetinc to address the commission. There is "a light at the end of the tunnel" from the applicants point of view in that the Board of Adjustment, last week, took action at the Red Onion in a case that is not exactly analogous but one in which the Board allowed some space on the addition to be glassed over, However the space was not to be used for commercial square footage. Paul Ruben told the Commission that he felt that he could make a compelling case to rebut the fact that it does extend the floor area ratios. Mr. Ruben told the Commission that the plans had changed some and pointed out that he had gone over the FAR with the planning office and was led to believe that it would not be a problem. Paul Ruben then read from the Municipal Code section 24-11.2 A. Mr. Ruben said that if he went back to measuring the floor area ratio under section 24-3.7 ordinance 11 it, states that ventilating shafts and courtyardS are areas that don't count as FAR. It is Mr. Rubens' contention that the part of the property in question which has been leased to Abetone since they have "mo"."~~.,,, .... "', . ..., " // /' , ",~..., C. f. '''',n~n n. I." I. (~ -------- ~ ( 'OJ ~. RECORD OF PROCEEDINGS 100 Leaves PLANNING AND ZONING COMMISSION OCTOBER 18, 1983 HEGULl\R MEETING -"betonc GMP Excmption(cont.) been there is not in fact a courtyard, a courtyard being an architectural element of open space. According to City Code open space can not be more than ten feet below grade and the property in question is 10.3 feet below grade. Mr. Ruben said that the property in question is an area that is enclosed on all sides, the roof is currently open and it has been used historically as commercial floor area. It should have been included in FAR to this point. Paul Ruben pointed out that there were several discrepancies in the code as in the non-conforming structure portion of the code and is allowed from the stand point that it does not add to the non-conformity if in fact it is an existing commercial, retail area. As far as the project itself (the FAR) is concerned Mr. Ruben said he could make a case and show the Commission drawings and data that show that it will alleviate problems of standing water and snow. Mr. Ruben said that it will be kept virtually the way it is no\ with movable glazing. The area in question will not only meet its own needs passivly, with a passive solar system, but it will either add 95,000 BTU's a day to the existing structure or 230,000 BTU's a day depending on whether movable insulation is desirable on an economic basis. The resaurant, which is being remodeled on the inside, will have 60 fewer seats in the winter when this proposed ~tQjeQt~, is in place. Thus, according to Mr. Ruben, the impact on parking and the impact of employees is less with the new design of the resaurant. Mr. Ruben thought that including his argument in the FAR would save the applicant the money, time and heartache of going to the Board of Adjustment. Mr. Ruben reiterated that there were a number of discrpancies in the code as to what commercial floor area i~~anct~~h~t floor area ratio. is" .Io!,o:the.r!:wo):'d.in if0th?!;,appiica:n;t'dbilill:,. part of the project :L under a horizantal protrusion the applicant would not even have to face the Commission. There are, accorcing to Paul Ruben, large portions of the building under horizantal protrusions that could never be expandeded but which legally could be expanded. Mr. Ruben felt that in a number of ways the Commission had the legal grounds to grant an exemption from the GMP and that it is a compelling argument for the applicant to get the right to do the project. Perry Harvey asked if the patio was classified as open space in the original approval of the building. Colette Penne said that it didn't qualify as the definition of open space states that open space can not be more than 10 feet below grade. Colette explained that ordinance #19,building, required 25% (percent) open space in the C-l zone thus the courtyard under discussion could not be "counted" because it is farther below grade than the definition allows. The original plan did not include the courtyard as open space. Perry then asked if the courtyard was counted as part of the FAR. Colette said that she didn't know how it could have counted as Fl\R because there is no roof over the area and it has been leased as commercial footage. Colette also pointed out that the C-l zone allows a 1:1 Fl\R and the current FAR on this building ~s 1,83:1. Perry then pointed out th~t buildings~built_before~1977_can..remodel and reconstruct if there is no expansion of the commercial FAR. Perry said that he was trying to determine what that space was catalogycJ as originally. If it was not open space and it was not part of the buildillf) what was it? If the space was originally '~'I\ ,",Jlilflmlrj .., '" /' / ;,ctone GMP ~cmption (cont.) - -~~~.,.' - ...,. "r'''.. \. ) I,) -4- then there are grounds for exemption but if it was originally part of the 25% open space thclI it is questionable whether or not there are grounds for exemption. Jim Wilson of the Building Department told the Commission that there are some areas in the zoning code which are not clear. Mr. Wilson informed the Commission that it doesn't have to be either FAR or open space. "This is not an either or situation" said Mr. Wilson. Bill Drueding also of the Building Department told the Commission that they would have to go back to the original building plans and see what information they could come up with. There is nothing in the plans that show there is still a maintenance of the 25% open space requirement. If the area is still regarded as open space than the roof over the area defeats the word "deck". Mr. Dreuding said that he would do his best to determine what they can from the original plans as soon as possible. Roger Hunt thought that there was a contractual agreement between Don Flicsher and the City Council. Roger suggested going back to those agreements. Perry Harvey stated that the on-site plan had to show building footprint, and the open space that was figured to arrive at the 25% requirement. Perry said that he didn't know whether the Commission could make a deci!,jon on taking an action. Perry said that the Commission had three choices; they could act on it, they could table it, or they could table it pending Board of Adjustment review. Paul Ruben stated that the courtyard was tied to the teasable space of the restaurant and was a dining courtyard. , said that the Commission cannot increase the FAR, rather the Commission must determine if the area was originally zoned FAR, not open space. Paul Ruben felt that even if, whenever they figured FAR, the area wasn't included in FAR then the fact that they didn't include the area in FAR was a mistake. Lee Pardee thought the question would be determined by the agreement with the City, on what square footage of commercial space was allowed, "taking with it plans". If there is the square footage of the building plus the courtyard then the Commission knows that it was originally included as commercial space and "we have a simple answer". Colette Penne said that if in fact research shows that the area was part of the FAR then there is no reason to go through the procedure. Paur Rubpn said that he would like to point out one other thing. It seemed to Mr. Ruben that there should be mechanism that deals with criteria regardless of FAR. Perry Harvey sai6 that the Commission was not empowered to give varicnccs to the code. ;~- ~---:.! Regular Mceting , , Abetone GMP Exemption Planning and Zoning commission December 20, 1983 presented a geological report showing where the majority of the flooding would happen. Harvey asked about the report on the utility and icing problem. Crews told P & Z the applicant would like to extend the awning on the building, it would be a pcrmanent awning and would eliminate icing on utility meters. Assistant City Attorney Gary Esary said he has interpreted this exemption provision of the Code to be a per building exemption. Esary said if the Commission interprets it the same way, he would request a condition to make it clear this 274.25 square foot exemption out of the 500 square feet alloted for this building. Harvey agreed it was on a per building basis so that people do not keep coming in for exemptions. Harvey asked what the existing FAR on this building is. Ms. Penne said the staff is not sure as there is a discrepancy in the ownership ship line. Ms. Penne said if the P & Z grants approval, they should condition all other calculations will have to be done by the building department to make sure they are in compliance. Hunt moved to grant approval of the stream margin review and GMP excmption of approximately 274.25 square feet for the Andrews/Pletts building with conditions 1 and 2 in the plan- ning office memorandum dated 20 December 1983, condition 3 - the project shall comply \~ith zoning and building regulations irrespective of this approval; condition 4 this is a granting of a GMP exemption on a per building basis; seconded by Anderson. All in favor, motion carried. Ms. Penne, planning office, said the P & Z had raised concerns at their October 18th meeting on how this area was counted on the original plans; was it open space, was it counted in the FAR, would it be additional FAR if it were to be roofed over as in this application. Ms. Penne pointed out the C-l zone allows a 1:1 FAR; this building is 1.83:1, therefore, it is non-conforming. This building was exempt from the FAR in 1975, Ordinance 11, by Ordinance #25, 1975 and Oxdinance #50, 1974. This exemption allowed the building to proceed with construction although it would not have complied with earlier ordinances. Ms. Pennc said either because of the exemption or the FAR calculations are not as clear as today, the record is not clear whether the dining area is included in FAR calculations. Ms. Penne said there is evidence the area was included in occupancy load calculations. Ms. Penne said she has not seen plans that conclusively include it or not include it in the calculations. Ms. Penne said the Municipal Code requirements in effect prior to Ordinance 11, 1975, allowed a 2:1 FAR with provisions for additional square footage when a project provided public arcade space at ground level or 'open space in excess of that required. Ms. Penne told P & Z, the applicant Paul Rubin, has submitted evidence this may be part of the floor area calculation in minutes of May 7, 1974 P & Z minutes. P & Z membe:r Johnson stated he "felt that garden level should be included in the floor area ration". This is unclear as no acti~n was taken and it was just part of the minutes. Ms. Penne said Ordina~ce 11, 1975, states "in measuring floor area for the purpose of calculating floor area ratio, there shall be included that area within the surrounding exterior wall", 1 1 1 the floor area Ofl building or portion thereof not surrounded by ext:erior walls shall include any usable area under a horizontal projection of a roof or floor above". , I ) -'.';.,~-' ,.~'~"frfIt~~~.,....,...." ,...-.----. ., O~"., c. r. ''''''0\ ...." L lJ. ,"", , ) RECORD OF PROCEEDINGS 1 00 Leaves Regular Meeting Planning and Zoning Commission -5- December 20, 198 Ms. Penne said on interpretation, one could conclude this area was counted if the wall at the sidewalk was considered to be the exterior wall even when the space was not roofed. Ordinance 11, 1975, also states "for purposes of calculated floor area ratio, there shall be included basement (but not sub basement) areas except any such basement area devoted to underground off street parking". This area could be consid- ered to be surrounded by exterior walls and it does not qualify as open space, it may have been calculated as floor area by being included in the basement - garden level. Ms. Penne said the area cannot be open space for two reasons it cannot be more than 10 feet below the abutting street. This space is 10.3 feet below the street. Ms. Penne said the open space must be continuous and not obstructed with building appurtenances and appendages. stairways are considered obstructions. The space is accessed by a stair way which divides it from the sidewalk. Ms. Penne told P & z the current floor area ordinance includes any area under a horizontal projection of a roof and any question of the inclusion of this space is answered once the roof is placed over it. This area is subgrade; the proposed roof is glass. Ms. Penne said the evaluation of th, impact of additional bulk is less than a solid roof above grade. However, there is an open area that is proposed to be closed in. Ms. Penne said based on the present FAR ordinance, the area qould be counted in FAR; however, the past record is inconclusive as to whether this space was included in the FAR. Ms. Penne said the staff feels any growth or servicing impact resulting from glassing in this area would be minimal Ms. Penne told the Board if they feel the applicant's arguments are strong enouch to justify issuance of a buildin, permit, they could find that this area should have been originally included in the floor area and request issuance of a permit. Ms. Penne said the planning office is reluc- tant to reach that conclusion based on the evidence presente' Under today's regulations, the enclosure of the space would increase the FAR and will increase the non-conformity in terms of the FAR. Ms. Penne recommended P & Z table the applicant and send the applicant to the Board of Adjustment for a variance for this space in the FAR. Ms. Penne said if P & Z feels it is good idea to have this project done, they may send on a recommendation to the Board of Adjustment. Harvey recapped this is not open space, it is an open area; it is not clear that it was included in FAR but was mentioned garden level should be included in the FAR. Ms. Penne questioncd if it was not open space and was not FAR, what was it. Paul Rubin pointed out not only is this area obstructed by the stairway, but one has to go into the restaurant and through the sliding glass door to get to this area. Rubin said it was always clear this was intended to be used as a restaurant. Rubin pointed out a copy of the building permit and in the calculation for occupancy load, this area was counted. Rubin said the recognition of this-being used as ..... \ ..'~ " .-- -.-..----.--, .'~f~otl,..,<;~"~,> '!i,jj~ .-""'" '" / {gular' Meeting r Planning and zoning Commission December 20, 1983 dining space was very clear. Rubin said at no time is there any evident to show that this was not counted as FAR, and it clearly cannot be open space. Hunt asked if this open area is within the walls of the buidling, what would be the FAR. Rubin said there are various ways to calculate the FAR because of planters, over hangs, elevators, etc. Ms. Penne said the issues of GMP . exemption and the impacts of using this as commecial space were outlined in an earlier memorandum to P & z. Rubin said they are rearranging the rest8urant and there will be less seats than there are now. Hunt said if the walls of the open area are included in the FAR and that comes out to 2:1, that could be an indication it was included in the FAR, which at the time for the zone district was 2:1. Paul Sheldon said when he walks by the building, all he sees is the edge. Sheldon said the addition of a glass roof will not make any impact on the public and he does not oppose it. White agreed with Sheldon. Anderson pointed out this stairway is not covered and is going down into this space. This is not like stairways that are covered and go up on a building. Anderson said he feels this was definitely open space in the beginning and should stay open space. Rubin pointed out that the open space should be continues and not obstructed with building appur- tenances, this area is obstructed and always has been. Ms. Tygre said no one, at this time, can say conclusively what this space is or is not. Ms. Tygre said this request is to cover space that was not previously enclosed and there will be tables there. Ms. Tygre said the applicant should go get a variance. Esary said the Board of Adjustment can smooth out the rough edges of the zoning code, and this is within their jurisdiction. Esary said no one can prove whether this is open space or FAR, the record is not clear. Harvey, White and Sheldon feel the request from the applicant should be approved. Andersen, Ms. Tygre and Hunt feel it should remain open space. Hunt pointed out the building is already over the FAR. Anderson moved to table this application until such time as a variance on floor area limitation is obtained from the Board of Adjustment with no additional comments from P & Z; seconded by Ms. Tygre. Harvey asked the Commission if the applicant does get a variance, would the Commission be willing to short circuit the process and approve a growth management exemption. The Commission said no; the applicant should go to the variance first. All in favor, with the exception of White and Sheldon. Motion carried. Aspen Mountain Lodge - Additional Review Sunny Vann, planning director, said there are some issues on Requirements this project still outstanding. One of these are the conditions of the conceptual PUD/subdivision. The rezoning issues have either been tabled or denied. The employee housing on Ute avenue has been deferred. The change in use for employee housing should have some conditions attached. The P & Z has dealt with the multi year allocation and decided on 464 units. Vann said he would like to go through the conditions so that the staff can prepare a resolution. \ I j o o '" .0 o .0 co -. )> 0 '" 0 f>-co -I)> ru . Z r 0" .... ;20 11l 0" :JJco . )>)> 0", .. 0)> r- .... OJ-I 0 '" '" N .... 0 '" en -u -u .. . ') g\~ ~ ~I Ci ~ r " '" o ~ - ~ . -l _ ~~~ 0 . - 0 r- C'\ \: '" IJ) c ~ " ,. --~,- -,----...- '" '" ~ ~ ~ ~".t""'.... 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