HomeMy WebLinkAboutlanduse case.boa.Cooper&Monarch-LotsC-I.024-74
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CITY OF ASPEN
DATE June 19, 1974
CASE NO.
1~'^!
APPELLANT Limelite, Inc.
ADDRESS P.O. Box 1089
Aspen, Colorado 81611
'OWNER
Mr. Glenn Paas
ADDRESS P.O. Box 1089
Aspen, Colorado 81611
LOCATION OF PROPERTY
Cooper Ave. and
Monarch St., Lots C,D,E,F,G,H, & I
e>loo:.\<. "
of Subdivision Blk. & Lot No.)
(Street & Number
Building Permit Application and prints or any other pertinent data
must accompany this application, and will be made a par~ of
CASE NO.
The Board will return this application if it does not contain all the
facts in question.
Description of proposed exception showing justifications:
Exception *1
View Plane @ Northeast Corner, 7940.2 elevation
Proposed third addition, 7941.2 elevation
The nQ~theqqt cQrne~ o~ the building Cqnnot be ~een from the Wheeler Opera
House View Planelocatioh'. 'The variancewoula only be needed for the first
38 feet of the 172 foot north elevation, and the first 28 feet of the 85,
foot east elevation;
SEE BACK OF APPEAL
SIGNED
/ Appel ant
Exception *2
provisions of the Zoning Ordinance
to forward this application to the
for not granting permit:
requ~r~ng the Building Inspector
Board of Adjustment and reason
Application is made for a building permit to build a third story addition
to an existing building. The proposed addition will project one foot
into the Wheeler Opera House View Plane.
The existing building is partially located in the c-l district and
partially in the AR-l district. The proposed addition will have one
half unit more than permitted in the C-l district, however there will
be one half unit less in the AR-l district. ~he total number of units
proposed is 14 ~~~~}=~=u~}ts.
-
Sec. 24-9 (h) Mountain View Height
Lot Area.
Status
Limitations and Sec. 24-7(a) Min.
~~.~
SJ.gned r
DECISION, DATE
PERMIT REJECTED, DATE
APPLICATION FILED
DATE OF HEARING
MAILED
Secretary
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Rescheduling of
NOTICE OF PUBLIC HEARING
Case No. 74-24
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 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 f~om 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.
yorrviews 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:
July 18, 1974
3:00 p.m., City council Chambers
Name and address of Applicant for Variance:
Name: Limelite, Inc.
Address: c/o Glenn paas, P. O. Box 1089, Aspen, Colorado 81611
Location or description of property:
Location:
Description:
Cooper Avenue & Monarch Street
Lots C, D, E, F, G, H, ~, Block 77
Variance Requested:
SEE ATTACHED.
Duration of Variance: (Please cross out one)
T~ ~
BY
OF ASPEN BOARD OF ADJUSTMENT
~' lL1J
Chairman By AP
THE CITY
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NOTICE OF PUBLIC HEARING
Case No. 74-24
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 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 f~om 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.
yorrviews 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 hea~
Date and Time of Meet~
and of the requested variance are as follows:
.,,~,
Date: July 1l;'1~4
Time: 3:00p.m., city.~ Chambers
Name and~ddress of Applicant for Variance:
Name: Limelite, Inc.
Address: P. O. Box 1089, Aspen, Colorado 81611
Location or description of property:
Location:
Description:
Cooper Avenue & Monarch Street
Lots C, D, E, F, G, H, I, Block 77
Variance Requested:
See Attached
Duration of Variance: (Please cross out one)
lOeKlPlDJOaJt'JY Permanent
BY
OF ASPEN BOARD OF ADJUSTMENT
~ I),Jj
Chairman By AP
THE CITY
HEMORANDUM
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'''>Y
TO: Mem~ers of Planning and Zoning commission
FROM: Sandy Stuller
RE: Application of Limelight Lodge;
Elimination of Off-street Parking Spaces
DATE: August 5, 1974
Members of the commission:
It is my understanding that the Limelight Lodge
has processed an application for extension of the
lodge in such a manner as would require elimination
of their present off-street parking area and creation
of only such addition spaces as are required by
the new, additional units. Bore specifically,
it is their contention that inasmuch as the original
structure was built before the off-street parking
requirements were established, they may eliminate
any spaces they voluntarily supplied subsequent to
the effective date of the off-street parking ordinance,
dedicate that area to open space, rely on this
dedication for increased density, and replace only
as many spaces as are attributable to the increased
density. This proposal is in contradiction to the
doctrine of abandonment of nonconforming use and cannot
be accepted.
.
General principles
Zoning ordinances are prospective only, i.e.,
no retroactive ap~lication of them is made.
Consequently, all uses contradictory to a zoning
ordinance are permitted to remain as "nonconforming"
uses with restrictions imposed against their
enlargement, expansion, restoration, etc., all
designed to eventually eliminate them. There is
an additional concept in the law designed to
eliminate ~onconformities, that is, the theory
of abandonment. This doctrine provides that when an
owner has a nonconforming use, and discontinues
that use in such a manner so as to indicate he is
Page Two
Members of the Planning and Zoning Commission
abandoning it, this serves to terminate a right to
a nonconforming use. If the cessation of use is
involuntary, i.e., caused by external conditions
(e.g. unable to procure a tenant, insufficient
funds to do needed repairs, etc.) or if the
cessation is due to governmental intervention
(e.g. condemnation of the property) courts will
very often find no abandonment of a nonconforming
use because an owner will be found to not have
intended to discontinue the nonconforming use,
"zoning: Right to resume nonconforming use of
premises after involuntary break in the continuity
of nonconforming use caused by difficulties unrelated
to governmental activity", 56 ALR 3rd 14, "zoning:
Right to resume nonconforming use of premises after
involuntary break in the continuity of nonconforming
use caused by governmental activity", 56 ALR 3rd 138."
However, when an owner voluntarily makes his use
conforming (here, by providing off-street parking)
or decreases its nonconformity, ,the courts will
not allow him to revert to the nonconforming
use, holding he has abandoned the same, "zoning:
Right to resume nonconforming use of premises after
voluntary or unexplained break in the continuity
of nonconforming use, 57 ALR 3rd 279."
Voluntary Abandonment
The author in the last noted cite states
in the annotation:
"zoning ordinances, which are ordinarily .
said to have no retroactive effect
and to work no disturbance of existing
uses of property, often provide, in effect,
that where a lawful use of property
is in existence on the date at which
such ordinance comes into effect such
use may be continued, even though
the continued use does not conform to
the mandates of the ordinance (i.e.
ordinances are not given retroactive
effect) zoning ordinances also
often go on to proclaim that, if such a
nonconforming use is discontinued
(abandoned), and resumption of activity
with regard to the property shall be in
,.....'
Page Three
Members of the Planning and Zoning commission
conformity with the provisions of the
ordinance ... (T)he courts have generally
held that the word 'discontinuance' is the
equivalent of 'abandoned', hence, it has
uniformly been stated that the dis-
continuance of a nonconforming use results
from the occurrence of two factors (1)
the intent to abandon (2) and voluntary
conduct, whether affirmative or
negative, which carries the implication
of abandonment".
And further:
"(I)t would appear to be a widely
accepted fundamental of zoning law that
a right to exercise a nonconforming use
will continue to exist until there
is an abandonment of such, i.e., that
such right will not survive the
abandonment of such use. THUS IT
WOULD APPEAR TO BE WELL SETTLED on
the basis of the following zoning
cases involving the right to resume
nonconforming use of premises after
an alleged voluntary or unexplained break
in the continuity of nonconforming
use - that the actual legal
abandonment of nonconforming uses is fatal
to its resumption."
Courts will find an abandonment of a
nonconforming use on evidence of (1) a definite and
regular conforming use of property over a period
of time (2) a voluntary compliance with a
zoning ordinance subsequent to the establishment
of a permissible npnconforming use or, (3) intervention
of a conforming use for a sufficient period of
time to justify a conclusion of abandonment of
the former use.
It is submitted that the Limelight Lodge,
in voluntarily supplying off-street parking (overt
act) over an extended period of time has, under the
common law principles described above, abandoned
a corresponding degree of nonconformity and lost
its immunity against application of the off-street
parking requirements for the existing structure.
#"',
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Page Four
Members of the planning and Zoning commission
A voluntary period of actual conforming use will
break the chain of continuity in the exercise of
nonconforming uses.
colorado Caselaw
In Service Oil v. Rhodus, 500 P2d 807
(1972) the Colorado Supreme Court overturned the
Denver Buick case's earlier holding that nonconforming
uses could not be terminated, in Rhodus the Court
stated a ruling in harmony with most jurisdictions
to the effect that (1) nonconforming uses may be
terminated by abandonment (2) if an intent to
abandon is shown. See also Beszecles v. Board of
Commissioners of Arapahoe county, 178 P2d 950 (Colo.
1947), Fishman v. Tupps, 257 P2d 579 (Colo. 1953)
and Board of Adjustment of the City and County of
Denver v. Abe Perlmutter Construction, 280 P2d
1107 (1955).
General policies
Generally, one enjoying \,nonconforming use
cannot substitute it for one of a less restrictive
nature, cannot increase its intensity of use,
nor extend nor enlarge the same. The policies
behind the doctrines concerning nonconforming
uses are:
1. nonconforming uses are to be
looked upon with disfavor because the detract
from the effectiveness of a comprehensive
zoning plan;
2. nonconforming uses are to be gradually
eliminated, if possible, because they,
in addition to detracting from a zoning
plan, give their owners hidden advantages
or monopolies not enjoyed by the
balance of the community.
The concept of nonconforming uses was adopted
to eliminate manifest injustices or hardships that
may result from forced compliance by a landowner,
of all new zoning ordinances. But if an owner voluntarily
complies he defeats any argument that any new
ordinance creates as economic hardship beyond his
",~......
Page Five
Members of the planning and Zoning commission
ability to sustain and waives any immunity against
compliance.
conclusion
I can only conclude that the Limelight
must, for a permit to issue, maintain those parking
spaces presently existing needed to support its
present density, and, in addition, supply
any new spaces correlating to the new units to be
constructed.
.
CIANCARY 1974
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OVINERSHIP 'LIST
--
210 Cooper Condominium Association
unit Owner
l-A John R. Adler, 224 Homewood p.oad, Los Angeles, Calif.
l-B Investment Properties Co:, c/o Phil Eggstaff
~~~~XN~XN>>~lj~~X~~&~1 scottsdale, Arizona 85257
P.O. Box 3263
l-C Susan Lugo, P.O. Box 1523, Aspen
l-D Edith Lounsbury, 8473 S.\~. 137th Ave., Miami, Florida
l-E
l-F
l-G
2-A
2-B
~ 2-C
2-D
2-E
/2-F
2-G
3-A
3-B
,...4
>~-C
3~D
,/
3-E
3-F
3-G
Joseph E. and Rita M. Doussard
10136 West Iowa Ave., Lakewood, Colo.
802] 5
John W. Colleran, 7 Whitney Avenue, New Haven, Conn.
Kenneth 1I. & Lynnette Gutner
3285 Dato Ave., Highland Park, Illinois
Friedrich Stammberger, P.O. Box 1201, Aspen
B.F. Walker, Inc., c/o A.M. 'Dinges
650 17th Street, Denver, Colo.
Michael Ohnniacht, P.O. Box 1172, Aspen
Robert A, & Genevieve Jacobson
149 Parrish Road, New Canaan, Conn.
Joseph 1I. & Seline Clark Ehrhardt
2734 N. Mildred, Chicago, Ill. 60614
Frances H. Johnston, P.O. Box 3734, Aspen
Floyd B. Joy, 765 S. Garfield'St., Denver, Colo.
80209
Henrietta Clausen, 650 Black Thorn Rd., Winnetka, Ill.
Paul G. & Elinor H. Anderson, P.O. Box 2916, Aspen
.
James E. Scull, P.O. Box 2051, Aspen
Joseph L. Tita, 18 Carolane Trail, Houston, Texas
Lt. Col. Richard O. Merritt, USMC, hq. Battery, 1st Bn.
11th Marines, 1st Mar. Div., Camp J.H. Pendleton, Calif.
Dr. Kenneth C. Sawyer, Jr., 401 Gilpin St., Denver
George II. Tesar, 205 Winnetka Ave., Winnetka, Ill.
2165 Carroll Ave., St. Paul, Minnesota
55104
Percenta'J~
5.12
4.70
3.87
4.70
3.87
4.70
5.12
5.53
4.90
4.10
4.90
4..10
4.90
5.53
5.53
4.90
4.10
4.90
4.10
4.90
5.53
July 23, 1974
Mr. Spencer Schiffer, Chairman
Planning & Zoning Co~nission
Ci ty of Aspen
P. a Box V
Aspen, Colorado 81611
RE: P & Z Referrals to Board of Adjustment
Dear Spencer:
.ie are writing on referrals made to us by the P & Z
Commission. TIle case that pointed out the problem of lack
of communication is our Case No. 74-24, Lime lite , Inc.
Ordinance 19 review -- conceptual approval was granted
conditionally by your Commission on June 11. 1974. We are
enclosing the minutes of July 18 in which the Limelite's
requested variances were discussed on their proposed third
floor. We thought that our minutes would be of interest to
you as yours were to us.
In the future, we would greatly appreciate an expression
of your wishes as well as some background on referrals made
to us.
Sincerely,
John Dukes, Chairman
Board of Adjustment
JD:ap
Enclosure
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TITA LACKSHIN 8< NATHAN
ATTORNEYS AND COUNSELORS AT LAW
707 CENTRAL NATIONAL BANK BUILDING
2100 TRAVIS STREET
HOUSTON, TEXAS 77002
(713) 224 -3222
July 10, 1974
Aspen Board of Adjustments
City Council Chambers
Aspen, Colorado
RE: Case No. 74-24
Application for Variance of Limelight, Inc.
Located at Cooper Avenue and Monarch Street in
Aspen, Colorado
Dear Sirs:
I have just returned from Aspen where during the weekend I learned
of a hearing on July 11, 1974, at 3:00 o'clock p.m. to consider
a variance to permit the Limelight Motel to build a third story
on the existing facility at Cooper Avenue and Monarch Street. I
own Apartment 3-D in a condominium complex known as 210 Cooper;
no formal notice has been sent to me either in Houston or Aspen.
The purpose of this letter is to vigorously protest the granting
of a variance to the Limelight, Inc. Without adequate notice
there has been no opportunity to examine the proposed building
plan and the necessary submissions under the controlling ordin-
ances. However, based upon the available information the pro-
posed addition will provide for fourteen units and increase the
height of the Limelight by one story. The combination of these
two factors will be highly detrimental to the neighborhood gen-
erally and particularly to 210 Cooper. It would permit an in-
crease in population density in an area which is already satur-
ated with recreation accommodations, and multiple residences.
The addition will further aggravate and compound the already
inadequate parking facilities occasioned by the present population
density. This is due to the simple lack of physical space for
cars (and in part because of the increased utilization of Wagner
Park as a recreational area.) There are not adequate off street
parking facilities for the residents in the area, nor are there
adequate parking on street facilities for the guests of the Limelight
and adjoining recreational accommodations. There is a serious
question as to whether or not any application for bUilding~eir.mit1
could comply with Section 2 of Ordinance 19 and more parti~~~lY
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TITA LACKSHIN 8< NATHAN
ATTORNEYS AND COUNSELORS AT LAW
707 CENTRAL NATIONAL BANK BUILDING
2100 TRAVIS STREET
J',:L,i",!.j
HOUSTON, TEXAS 77002
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Aspen Board of Adjustments
City Council Chambers \
Aspen, Colorado
,
Aspen Board of Adjustments
July 10, 1974
Page 2
Subsection C.
It is hoped that Aspen ultimately will resolve its parking problems
and I am an ardent supporter of the notion of malls and pedestrian
walkways. However, aspects of that plan are still in the planning
stage and have not yet been implemented. To permit the Limelight
to create the need for at least fourteen new parking places at a
time when there is a gross inadequacy of parking spaces under the
existing conditions would be contrary to the spirit and letter of
Ordinances 19 and 24.
Beyond these serious considerations there is the question of
aesthetics and the dimunition of the land values of the adjacent
owners. In reading Ordinances 19 and 24 there is a clearly stated
mandate for the preservation of scenic views and more particularly
the views of Independence Pass, Shadow Mountain and Aspen Mountain.
While I realize that the preservation of these views is directed
primarily to public places it seems inconsistent that taxpayers
should be afforded less right to the visual benefits of Aspen
than tourists. A third story on the Limelight would virtually
eliminate any view of Independence Pass and Aspen Mountain to
two-thirds of the owners of 210 Cooper. It would severely com-
promise the view of the remaining owners. There is nothing
aesthetic or scenic about the side of a three story motel. It
should not be necessary to emphasize to an administrative body in
Aspen, Colorado that the view of the mountains is one of the joys
of living in the community. Along with the loss of view comes an
immediate loss of value. At the time that the owners acquired
their interests in the condominium they relied upon existing zoning
ordinances to insure the existing view of Independence Pass and
Aspen Mountain. This reliance should not be frustrated by the
permitting of a variance which by its nature is an exception to
be granted only upon the Showing that there will be no substantial
impact on the surrounding neighborhood.
In short, the addition of a third story to the Limelight would
aggravate an already existing problem involving density and parking,
and cause irreparable harm to adjacent landowners by denying them
visual access to Independence Pass and Aspen Mountain.
Aspen Board of
July 10, 1974
Page 3
Adjustments
For all of the above reasons I urge that the variance not be
granted and that the Limelight be denied its application to con-
struct a third story on the existing structure.
We have been supporters of the Planning Commission's attempt to
control and direct the growth of Aspen. Only by such conscientious
effort can the beauty and uniqueness of the community be maintained.
That beauty and uniqueness should not be erroded by granting
variances which create the very abuses which Ordinances 19 and 24
seek to specifically avoid.
Thank you for your kind attention.
Sincerely,
c Z ,.!.. Lc5?:h-
seph L. Tita
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COUNTY ATTORNEY
PITKIN COUNTY
p,O,oo, 3707
ASPEN, COLO, 81611
July 9, 1974
HAND DELIVER
Mr. John Dukes, Chairman
City of Aspen Board of Adjustment
c/o Ms. Lorraine Graves,
City Clerk
Re: Case No. 74-24,-
Limeli te Lodge
Dear Mr. Dukes:
As you may know, Pitkin County owns Wagner Park. The
Limelite Lodge borders on Wagner Park. Pitkin County, as
an adjacent landowner, was not given notice of the variance
hearing of the Limelite scheduled for July 11, 1974 as is
required by the Aspen Code, Section 2-22 (c) (1) and (2).
I learned informally of the proposed hearing yesterday.
That is not enough time for the County to assess its position
and therefore, as a landowner within 300 feet of the
Limelite, the County formally objects to the hearing taking
place on Thursday.
Sincerely,
CLARK, OATES, AUSTIN & McGRATH
County Attorneys
By ) \J\~l w. ,\"" ~ {,vnrL. l .
J. Nicholas McGrath, 'Jr.
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June 21, 1974
Mr. Clayton Merring
Building Inspector
ci ty Hall
P.O. Box V
Aspen, Colorado 81611
CLAYTON - I am submitting a list of adjacent property owners
concerning the Limelite Lodge Project. Your office indicated
this was required to process the Appeal Application for var-
iances that I delivered yesterday,
~
North
Limelite, Inc.
P.O. Box 1089
Mr. Glenn Paas
J,W.,{t ~ ,"-0
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Deep Powder
Gus & Marge Hallum
p.O. Box 3038
South -
Aspen Manor
V . A . & J, Adam
P,O. Box 310
The Pines
I could not locate Mr. Sabbatini,
the owner, to obtain his P.O. Box,
(925-7100) ~O?<. '-7 e \
If you have any questions concerning the above information,
or the Limelite Lodge project, please call.
Sincerely,
CAUDILL ASSOCIATES . ARCHITECTS AlA
<q)~~
Don Ball
pm
CAUDILL ASSOCIATES ARCHITECTS A.I.A. . P. Cl. BOX r-=:F, ASPEN. COLORADO 816"1l . PHONE 303-825-3383