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Home My WebLink Aboutlanduse case.boa.Blk11/8thSt.029-73 w -).. 7'5 -:;{ CJ{icJ] 7f - / {). ()() __k_~_'~_"____,,~,__ m~.,~_~__._____~_,.,..,~" APPEAL TO BOARD UF ZONING ADJUSTNENT CITY Of L~SPEN --~..~...- -'--,.~--~- Date October 15, 1973 CaS2 No. 13 -.rt Appellant ~ V~~la of Aspe.~.!.~~Addr.esf: P.O. Box 679, Aspen, Colorado 81611 Owner The Villa of Aspen, Inc. Address same Block 11, the vacated alley w1th1n sa10 Block 11, Location of Property and a part of vacated Eighth Street, City and Townsite GStreet & Number of Subdivision Blk. & Lot No.) of Aspen, more particularly described on Exhibit A. Building Permit Application and prints or any other pertinent data must accompany this application, and will be made a part of CASE NO. 73 -~9 The Board will return this application if it does not contain all the facts in question. Description of proposed exception showing justifications: See written Statement in Support of Appeal attached hereto as Exhibit B and made a part of this application by this reference. Provisions of the Zoning Ordinance to forward this application to the for not granting permit: of Aspen, Inc., by Daily or Holland & Hart, f: p~~; _ pe aty-- requ1r1ng the Building Inspector Board of Adjustment and reason The Villa Arthur C. attorneys Signed This appeal is brought to the Board pursuant to Sections 2-21(1) and (2) of the Aspen Code. The issue: Whether or not the applicant for this building permit must first comply with the applicable subdivision regulations. Briefs will be submitted by both Art Daily and the City Attorney who will both be present at th\ hearing to make oral arguments and answer questions. Permit J\cjcctecl, datc~ . ._~_.,-"~--~ Chief Building Inspector --"~'_'_~__"__w~,~ S tn UJ,S --~_._-,--,_. A}Jpl1c2t1on Filcrl --"-~""---~.,. . ...".. ,-,"~'"'.. J"Llilc.cJ ~~_._.__+...__ _"4_'~_~_,_,~,.",___,~_~_ JOSIAH G.HQLLAND STEPHENH.HART JDHNl.J.HART WILliAM D. EMBREE, JR. JAMES L.WHITE PATRICK M.WE5TFElDT CLAUDEM.MAER,JR. RDSERT P. DAVISON JOHN FLEMING KElLY FRANK H.MORISON WILLIAM C.McCLEARN JAY W.TRACEY,JR. JOHN ALLEN MOORE 8EN E.CHIDLAW JAMESE.HEGARTY FIELD C.8ENTON DAVID BUHER J.MICHAElFARLEY WARREN L.TOMLINSON 8RUCET.BUElL ""'" ""' HOLLAND & HART ATTORN EYS AT LAW DOND.ETTER JAMES T. MORAN KENNETHD.HU8BARD ROBERT L,VER SCHURE GORDONG.GREINER ROSERT H.DURHAM,JR. WilliAM E.MURANE H,GREGORY AUSTIN L.WllLIAM SCHMIDT,JR JAMESP.L'NDSAY EDWIN S.KAHN SAMUEL P.GUYTON JOHN S.CASTELlANO DENNIS M.JACKSON ROBERT E.BENSON DONALD O.KINONEN RICHARD M.KOON CHARLEST.SRANDT R06ERTT.CONNERY HARADON BEATTY 500 EQUITABLE BUILDING 730 SEVENTEENTH STREET ARTHUR C. DAILY JEFFREY C. POND JOHN UNDEM CA~LSON BRUCE W. SATTLER RANDY L. PARCEL JOSEPH N. DE RAISMES GRAHAM M. CLARK,JR. ,"AVID G. PALMER JUDITH BONNIE KOZLOFF MICHAEL D. MARTIN WALTER W. GARNSEY, JR. RAUL N. RODRIGUEZ JACK L.SMITH DENYER,COLORAOO B0202 TELEPHONE AREA CODE 303 292-9200 CABLE ADDRESS HOLHART, DENVER MOUNTAIN PLAZA BUILDING P.O BOX 1128, ASPEN, COLORADO 81611 TELEPHONE 925-3476 AREA CODE 303 HARRY L.H08S0N OF COUNSEL November 9, 1973 Ms. Lorraine Graves, City Clerk City of Aspen P.O. Box V Aspen, Colorado 81611 Re: Case No. 73-29, Board of Adjustment Dear Lorraine: is the proposed Notice of Public to the captioned matter. I've revised of the Notice so that it more accurately reflects the nature of the issue being presented Board for determination, and would appreciate it if would see that the amended Notice is forwarded to all adjoining property owners. Under cover of a carbon of this letter, a copy of the proposed Notice is also being sent to the City Attorney for her approval. Enclosed pertaining language Hearing the to the you Thanks for your help. Very ~rul yours, ~- Arthu C. Daily for HOLLAND & HART ACD:mm Encls. Sandra M. Stuller, Mr. Ronald H. cc: Esq. Windemuller STEVEN M. HANNON JOHN D. COOMBE EUGENE F. McGUIRE LINDEll L.GUMPER SOLOMON N. BARON ROBERT J. MOIR MARKR.LEVY JEANNETTE P. MEIER R. BROOKE JACKSON BRITTON WHITE, JR. NOTICE OF PUBLIC HEARING Case No. 73-29 BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE APPEAL 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, Colorado, (or at such other place as the meeting may be then adjourned) to consider an appeal filed with the said Board of Adjustment from a determination by the City Building Inspector that the City of Aspen Subdivi- sion Regulations (Chapter 20, Official Code of Aspen) must be complied with before a building permit can be issued for a motel project on the property described below. All persons affected by such appeal are invited to appear and state their views, protests or objections. If you cannot appear per- sonally at such meeting, then you are urged to state your views by letter, particularly if you have objection to such appeal, as the Board of Adjustment will give serious considera- tion to the opinions of surrounding property owners and others affected in deciding whether to grant or deny such appeal. The particulars of the hearing and of the said appeal are as follows: Date and Time of Meeting: Date: Time: November 29, 1973 3 : 00 p;.m. Name and Address of Appellant: Name: The Villa of Aspen, Inc. Address: P.O. Box 679 Aspen, Colorado 81611 Description of property: Description: Block 11, the vacated alley within said Block 11, and a part of vacated Eighth Street, City and Townsite of Aspen Issue: Whether the City of Aspen Subdivision Regulations must be complied with before a building permit can be issued for the motel project proposed for the above-described property. Briefs have been submitted to the Board of Adjustment by Art Daily and the City Attorney. THE a1rman By , / , NOTICE OF PUBLIC HEARING Case No. 73-29 BEFORE THE CITY OF ASPEN BOARD OF ADJUS1~NT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BSLOW: Pursuant to the Offi~ial Code of Aspen of June 25, 1962, as amend- ed, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at silch 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 Resolution, Title XI, 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 your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious con- sideration to the opinions of surrounding property ow~ers 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 follovls: Date and Time of Meeting: Date: Time: November 29, 1973 3:00 p.m. Name and Address of 1.pplicant for Variance: Name: The Villa of Aspen, Inc. Address: P.O. Box 679 Aspen, Colorado 81611 Location or description of property: Location: Description: Block 11, the vacated alley within said Block 11, and a part of vacated Eighth Street, City and Townsite of Aspen Variance requested: Issue: whether or not this project is subject to subdivision regulations. Briefs have been submitted by Art Daily and the City Attorney Duration of Variance: (Please cross out one) 'lMlijiM1fKlfY Permanent ....... ...."", NOTICE OF PUBLIC HEARING 73 2~ BEFORE THE CITY OF ASPEN BOARD OF ADJUSTIlENT Case No. TO ALL PROPERTY O~~ERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amend- ed, a public hearing will be held in the Council 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 Resolution, Title XI, 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 your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious con- sideration to the opinions of surrounding property o~~ers 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 follm'ls: Date and Time of Meeting: Date: November 8, 1973 Time: 3:00 p.m. Name and Address of l,pplicant for Variance: ANdamdc:The villa of Aspen, Inc. ress:p.O. Box 679 _ Aspen, Colorado 81611 Location or description of property: Location: Description: Block 11, the vacated alley within said Block 11, and a part of vacated Eighth Street, City arid Townsite of Aspen Variance requested: Request for exemption from the subdivision regulations. Briefs have been submitted by Art Daily and the City Attorney Duration of Variance: (Please cross out one) - Permanent BY RESOLUTION OF ASPEN BOARD OF ADJUSTMENT ON APPEAL NO. 73-29. THE VILLA OF ASPEN. INC. WHEREAS, the Applicant. The Villa of Aspen, Inc., has appealed a decision of the Aspen Building Inspector denying a building permit for a motel project on applicant's property located in the City of Aspen, Colorado, said denial being based on applicant's failure to comply with the subdivision regulations of the City of Aspen, and WHEREAS, the publie hearing on Appeal No. 73-29 has been had before the Board of Adjustment on November 29, 1973, at 3 p. m. in the Aspen City Hall Chambers, and WHEREAS, the Board of Adjustment has, at such hearing, deter- mined that: 1. The Villa of Aspen, Inc.. did apply to the City of Aspen for a permit to build a motel project on the site of the existing Villa of Aspen motel, consisting of Block 11 and a vacated portion of Eighth Street, City and Townsite of Aspen. 2. On August 15, 1973, the building inspector advised the applicant that such permit would be denied (1) because of various comments made on the plans found in the check by the International Conference of Building Officials (ICBO) and (2) because it was the opinion of the city planning department and city attorney that the applicant must comply with the city subdivision regu- lations prior to the issuance of any permit. 3. On approximately September 26, 1973, the building inspector advised the attorney for applicant that on correction of the structural and non-structural plan deficiencies noted in the ICBO comments those objections to the plans earlier noted as grounds for denial would be withdrawn, leaving as a basis for denial only the failure to comply with the city subdivision regulations. Such corrections were subsequently or are in the process of being made to the satisfaction of the building inspector. 4. The history of the chain of title of the subject property is as follows: a. In 1963 Howard Lee was the owner of all of Blocks 5, 6 and 11 of the City of Aspen and the adjoining North Texas Millsite. All alleys in Blocks 5, 6 and 11 had been vacated as had Eighth Street lying between Blocks 5 and 11, b. In January of 1970 one Ralph Curt on acquired an undivided 1/2 interest in the same property, c. On March 13, 1972, all of the subject property was conveyed to the applicant, the property being described in two separate parcels in the deed of con- veyance in order to facilitate mortgaging. The two parcels consisted of the following: (1) Block 11, the vacated alley therein, and the greater portion of the adjoining vacated Eighth Street; (the boundary being approximately 8 feet to the west of the center of the vacated Eighth Street) and a second parcel consisting of (2) Blocks 5 and 6, the balance of the adjoining vacated Eighth Street, a part of vacated Bleeker Street, vacated alleys in Blocks 5 and 6, and the North Texas Mill Site, d. In October of 1972 a condominium declaration was filed covering, with slight modification, the tract described in section 4 (c) (2). Numerous conveyances to condominium owners followed. 5. The North Texas Mill Site was annexed to the city on August 14, 1972, i.e., subsequent to the transfer to the applicant but prior to the filing of the condominium declaration. At the time of the annexation proceedings the city and the applicant discussed whether the condominiumizing of any future structures would require compliance with the city's subdivision regulations. (2) It was determined that it would not. However, it was the testi- mony of the then acting city attorney that at no time did he discuss with the applicant whether the conveyance to a condominium association of the parcel described in 4 (c) (2) above required compliance with the city's subdivision regulations. 6. The city in the past has not required compliance with subdivision regulations on the sale of adjoining lots (formerly under single ownership) of a city block and this continues to be the policy. However, no testimony evidenced a past situation similar to that at issue, i.e., a conveyance (for purposes of development) of city blocks in which the alleys have been vacated and in which the street between two such blocks had been vacated. 7. The applicant's predecessor in title has previous hereto built a motel structure known as the Villa of Aspen partially located in the vacated portion of Eighth Street and wishes, on issuance of the permit at issue, to destroy the structure and place on the pareel described in paragraph 4 (c) (1) above a motel con- taining 92 units to be know as the Villa of Aspen Conference Center. S. There is concern by the members of the board and by members of the public (indicated by correspondence objecting to the project mailed in response to the notice given as required for such hearing) that construction of a project of this size at this location may create problems of access, fire prevention and street congestion. AND WHEREAS, as a result of said hearing, the testimony given therein and arguments written and oral previously submitted or made at said hearing the Board of Adjustment has determined that: 1. Because all alleys of Blocks 5, 6 and 11 have been vacated and the adjoining Eighth Street has been vacated, there is negated any argument made by the applicant that the parcel to be developed has previously been subdivided. (3) 2. The intents and purposes of subdivision regulation would be undermined if this division would be allowed and a permit issued without requiring of the applicant compliance with the subdivision regulations. 3. The building inspector for the City of Aspen has authority to deny a building permit for failure to comply with the subdivision regulations of the City of Aspen. NOW, THEREFORE, BE IT RESOLVED, that the action of denial of a permit be and is hereby sustained, and the appeal of the applicant, The Villa of Aspen, Inc., No. 73-29, be denied. Date $C!t'f/f~ Ie: 11,73 /~ if ii~ /;J'ol) .Dukes, . ha1rman / Aspen Board/ of Adjustment I, Casey Armstrong, duly acting and appointed deputy city clerk of the City of Aspen, Colorado, do hereby certify that the foregoing is a true and correct copy of the Resolution a~'ted Ii meeting held on~. ~-- by the Aspen Board of Adjustment at its 1973, . } Casey Armstrong l-Bep y City Clerk ./ .~"....... 8 HOLLAND & HART ATTORN EYS AT LAW JOSIAH G.HOLLAND STI::PHI::NH.HART JOHN L.J. HART WILLIAM D. EMBREI::,JR. JAMES L.WHITE PATRICK M.WESTFELDT CLAUDE M.MAER,.JR. ROBERT P. DAVISON .JOHN FLEMING KELLY FRANK H.MOR1SON WILLIAM C. McCLEARN .JAY W.TRACEY,.JR. .JOHN ALLEN MOORI:: BEN I::.CHIDLAW .JAMESE,HEGARTY FIElDC.BENTON DAVID BUTLER .J.MICHAELFARLI::Y WARREN L.TOML1NSON BFiUCI::T.BUELL OOND.I::TTER .JAMI::ST,MORAN KI::NNETHO.HUBBARO ROBI::RTL.VERSCHURI:: GORDON G, GREINER ROBERTH.DURHAM,JR. WILLIAM E.MURANE H.GREGORYAUSTlN L.WILLlAM SCHMIDT,JR. JAMESP.L1NDSAY EDWIN S.KAHN SAMUEL P.GUYTON JOHN S,CASTELLANO DENNISM..JACKSON ROBERT E. BENSON DONALD O.KINONI::N RICHARD M.KOON CHARLEST.BFiANOT ROBERT T.CONNERY HARADON BEATTY 500 EQUITABLE BUILDING 730 SEVENTEENTH STREET DENVER,COLORADO 80202 ARTHURC.DAILY JEFFRI::Y C. POND .JOHN UNDEM CARlSON BRUCEW. SATTLER RANDY L PARCEL .JOSEPH N. DE RAISMES GRAHAM M,CLARK,JR DAVID G. PALM(R .JUDITH BONNIE KOZLDFF MICHAEL D. MARTIN WALTER W.GARNSEY, JR. RAUL N, RODRIGUEZ JACKL.SMITH TELEPHONE AREA CODE 303 292-9200 CABLE ADDRESS HOLHART, DENVER MOUNTAIN PLAZA BUILDING P.O BOX 1128, ASPEN, COLORADO 81611 TELEPHONE 925-3476 AREA CODE 303 HARRY L.HOBSON Of COUNS~L October 16, 1973 Mr. Clayton Meyring City of Aspen Building Inspector P.O. Box V Aspen, Colorado 81611 Re: The Villa of Aspen, Inc. Dear Clay: I am hand-delivering to you herewith the original set of documents comprising the captioned corporation's Appeal to the City of Aspen Board of Adjustment in connection with the pro- posed new motel project for Block 11, City of Aspen. As you know, this matter was first appealed to the City Board of Appeals and Examiners, the necessary materials having been sub- mitted to your office on October 5, 1973. Subsequently, City Attorney Stuller determined that the Board of Adjustment was the proper forum, and the attached documents are being sub- mitted in accordance with this decision. I assume that the $10.00 appeal fee paid to your office on October 5 will serve as the fee for the present appeal as well. Sandy Stuller and I would much in advance as possible as will hear this appeal. both appreciate being advised as to the date on which the Board very ~%o.urs, Arr~. ~y for HOLLAND & HART ACD:mm Encls. cc: Mr. Ms. Mr. John Dukes (w/copies) Sandy Stuller (w/copies) Ronald H. Windemuller STEVEN M. HANNON .JOHN D. COOMB-E EUGENE F. McGUIRE LINDELL L,GUMPER SOLOMON N. BARON ROBERT J. MOIR MARK R. L-EVY JEANNETTEP.MEIER R. BROOKE .JACK~ON BRITTON WHITE,JR. APPEAL TO BOARD OF APPEALS AND ~f~ EXAMINERS ~ - cr -5-7] 29503# ****10.00 City of Aspen Case No. 73-:21 Date October 3, 1973 Appellant The Villa of Aspen, Inc. AddressP.O. Box Address vacated alley 11, Location of Property Townsite of Aspen, roo Building Permit applic tion and prints other pertinent data must accompany be made a part of Case No. 73-;" . The Board the facts if it does not contain all Description of roposed exc of appeal if n cessary): showing justification (use reverse See written tatement i B and made a part of t Support of Appeal attached hereto as Exhibit s application by this reference. The Villa of Aspen, Inc., by ~ftBFKe a~lXp' 1 UR~~and & Hart, Signed ppe an Provisions of the building code requiring the Buildin Inspector to forward this application to the Board of Appeals and reason for not granting permit. Signed Date permit rejected Application filed Mailed Status Decision Date of Hearing Date Secretary , . EXHIBIT A A parcel of land situated in the SW! of Section 12, Township 10 South, Range 84 West of the 6th P.M., Pitkin County, Colorado, being Block 11 of the City and Townsite of Aspen, the vacated alley within said Block 11, and part of vacated Eighth Street northerly of the northerly line of Bleeker Street, being more fully described as follows: Commencing at the intersection of the northerly line of Block 5, City of Aspen, with line 6-7 of the Aspen Townsite as patented, whence Corner No.6 of said Aspen Townsite (a red sandstone in place) bears N.07038'00"E. 1086.23 feet; thence following the northerly line of said Block 5 S.75009'11"E. 203.00 feet to the point of beginning; thence S.14050'49"W. 220.69 feet to a point on the northerly line of said Bleeker Street; thence following the northerly line of said Bleeker Street S75009'E. 317.53 feet to the southeast corner of said Block 11; thence N.1405l'E. 220.69 feet along the easterly boundary of said Block 11 to the northeast corner thereof; thence N.75009'W. 317.54 feet to the point of beginning, containing 1.609 acres, more or less; excepting, however, that certain 0.010 parcel of land in the northeast corner Of said Block conveyed by The Villa of Aspen, Inc. to the City of Aspen by that certain instrument recorded August 18, 1972, in Book 266 at page 37 of the pitkin County records. EXHIBIT B WRITTEN STATEMENT IN SUPPORT OF APPEAL I. Factual Background. By Deed recorded March 13, 1972 in Book 261 at page 927 of the Pitkin County records, Appellant herein (The Villa of Aspen, Inc.) acquired title to approximately 5.719 acres of land comprising Blocks 5, 6 and 11 in the City and Townsite of Aspen, the part of vacated Eighth Street lying between said Blocks 5 and 11, the vacated alleys in all three of said Blocks, and the North Texas Millsite, U.S.M.S. No. 3288. At the time of acquisition, the only improvements on the subject property were the existing Villa of Aspen motel complex, the three principal structures of which are situated upon Block 11 and extend slightly more than halfway across the vacated portion of Eighth Street which lies between Blocks 5 and 11. During the summer and fall of 1972, Appellant processed the annexation to the City of the North Texas Millsite. As a condition to the annexation, the Aspen Planning and Zoning Commission and the City Council required that Appellant submit a detailed site and landscaping plan for the townhouses condominium project which was proposed for Blocks 5 and 6 and the to-be-annexed Millsite, carefully reviewed such plan and required that a number of modifications be made. The Millsite was then formally annexed to the City, and the land rezoned AR-l Accommodations - Recreation, on August 14, 1972, subject to the condition that the condominium project be constructed in accordance with the site and landscaping plan on file with the City Planning Commission and Building Inspector. It should be noted at this point ""-".", , ,..'" that while it was clearly understood by all parties throughout the annexation proceedings that the adjoining Villa of Aspen motel property was owned by Appellant, and that the con- dominiumizing of the lands depicted on the site plan would eventually result in title to such lands being held by persons other than Appellant, at no time during the pro- ceedings was there any suggestion that Appellant's eventual transfer of title to the units might constitute an act of subdividing. Both parties were familiar with the subdivision regulations, and both obviously felt that they were not applicable. It might also be noted that simultaneously with the annexation of the Millsite to the City, Appellant delivered to the City - at the City's request - a deed covering .01 acre of land in the northeast corner of Block 11, to be used for the softening of the curve at the corner of Seventh Street and State Highway 82. The City did not require compliance with the subdivision regulations in connection with this transaction either, nor was any exemption from such regulations obtained. On October 24, 1972, the Condominium Declaration for the Villa of Aspen Townhouses was recorded in Book 261 at page 81 of the Pitkin County records, and Appellant proceeded to sell off the subject units. At the present time, all of the units have been sold, almost exclusively to permanent residents of the Aspen community. Moving now to the immediate controversy, on June 25, 1973 Appellant applied to the City Building Inspector for a building permit to construct a project known as the Villa of Aspen Conference Center on the site of the existing Villa of Aspen motel, which site is more fully described on Exhibit A attached to this Application. The proposed -2- " , project is designed to replace the aging, and in recent years economically unfeasible (too few units) Villa of Aspen motel with a larger, more modern motel structure which will also offer conference facilities. The plans complied with all current zoning regulations, and because of their complexity were forwarded by the City Building Inspector to the International Conference of Building Officials (ICBO) in Whittier, California, for Building Code review. During the waiting period, and even as late as the second week in August, the Building Inspector continued to advise Appellant, it's contractor (George Shaw) and it's architect (Russ Pie Is tick) that the building permit would issue as soon as the ICBO plan check was received and any plan corrections recommended thereby were made. By letter dated August 15, 1973, however, the Building Inspector informed Appellant that its application for a building permit was being denied on the grounds that (a) the ICBO report indicated that certain aspects of the plans would have to be redrawn, and (b) it was the opinion of other Departments of the City that the City subdivision regulations would have first to be complied with (and that a letter would follow from the City Attorney substantiating this latter ground). A copy of this August 15 letter is attached hereto for your reference as Exhibit C. Subsequently, by letter dated September 6, 1973 (copy attached as Exhibit D), the City Attorney confirmed the City's position that Appellant would have to subdivide the property before a building permit could be issued. For the record, Appellant and the City have agreed that the date of this latter letter (September 6) is the date from which the appeal deadline is to run in the present case. Finally, on Wednesday, September 26, 1973, the undersigned -3- representative of Appellant was advised by phone by the City Building Inspector that after further consideration of the plans originally submitted by Appellant, his office has con- cluded that such plans were in fact a legitimate submission, representing a sincere effort to comply with the Building Code rather than merely an attempt to file before the effective date of Ordinance 19 (passed a month later on July 24, 1973), and that the building permit application will not be denied on the ground that plan corrections must be made. Most of such corrections have already been sub- mitted to the Building Inspector, and he has further advised the Appellant that as soon as all Code requirements have been satisfied, he will issue a letter rescinding the portion of his August 15 letter which denied the application due to plan correction requirements. As a result, the present appeal concerns only one aspect of the Building Inspector's decision: Whether compliance with the City of Aspen subdivision regulations is necessary before a building permit can be issued for the subject project. II. Summary of Appellant's Arguments. Appellant will argue that on anyone of four distinct grounds, it is not necessary that the City subdivision regulations be complied with before a building permit can be issued. A. In October of 1972, when the first townhouse was sold, the term "subdivision" was defined in the Aspen Municipal Code in the following language: "Section 20-2(a) Subdivision. A subdivision is a described tract of land which has been divided into two (2) or more lots, tracts, or parcels, anyone of which is five (5) acres or less in area for the -4- purpose, whether immediate or future of transfer of ownership or for building development or for street use by reference to such subdivision or a recorded plat thereof." Obviously, the fundamental requirement of this definition is that there be a "division" of land. And yet in the present case, the property was already divided. Under the authority of Ordinance No.6 (Series of 1959), the Official Map of the City of Aspen was prepared by Buck Buchanan (then County Surveyor) and recorded, on December 16, 1959, in Drawer A of the Pitkin County records bearing Reception No. 109023. The effect of this recording was to formally plat the land within the City into the lots, blocks, streets, alleys, parks, etc. shown thereon. Blocks 5, 6 and 11 are, of course, a part of this officially platted area, and it is obvious that such platting effectively divided the land involved into such Blocks 5, 6 and 11. In other words, the land which is the subject of the present controversy has been formally divided for many years, and has been consistently treated as such by the City for purposes of general property taxation (see Exhibit E) as well as special assessments (see Exhibit F). How, then, can it be argued that a "division" of land has occurred in the immediate situation? The boundary line between the now-condominiumized land and the motel property lies within the vacated portion of Eighth Street between Blocks 5 and 11 (approximately nine feet West of the centerline of said vacated street), and leaves both of such Blocks completely intact. There has been no modification of or interference with the land divisions created by the City, and thus no further division has taken place. And without a "division" of land, the sub- division regulations are not applicable. Appellant has -5- done nothing more than hundreds of other landowners within the City have done in the past - he has taken two (or more) contiguous, officially platted parcels of land, sold one of such parcels and retained the other for future sale or development. In not one single instance since the adoption by the City of subdivision regulations has such a transaction been deemed within the purview of the subdivision regulations. In fact, on the same day (September 6) that the City Attorney delivered to Appellant her opinion that it had committed an act of subdividing, she forwarded an opinion letter (copy attached as Exhibit G) to an Aspen attorney to the effect that the sale of one or more City lots which are part of a larger parcel of lots all under single ownership does not constitute subdividing under the City subdivision regulations. Yet where is the distinction? Except in terms of size, there is no difference whatsoever between separating the ownership of two City blocks, and separating the ownership of two City lots. Both blocks and lots con- stitute parcels of land which have been officially divided by the City, and neither can now be treated as "undivided" for purposes of the subdivision regulations. In sum, the subdivision regulations have never before been interpreted as applicable to land already officially platted into lots and blocks, and there is no justification for the City's adoption of a contrary position with respect to Appellant. Indeed, the language of certain portions of the subdivision regulations themselves strongly suggests that they were not intended to apply to property already so divided. For example, in the definitional section, the following descriptions are employed: "Sec. 20-2(d) Final plat. A final plat is a map or chart of the subdivision . . . marked -6- on the ground so that streets, alleys,blocks, lots, and other divisions thereof can be 1dentified." (Emphasis added). "Sec. 20-2(i) Lot. A portion of a used or intendea-for-use as a unit of ownership or for development." subdivision for transfer (Emphasis added). The term "block" is not defined, but obviously it too would be considered "a portion of a subdivision." The clear implication is that land previously platted into lots and blocks has already heensubdiVided within the meaning of the City subdivision regulations. Further support for Appellant's position appears in the Colorado statute which constituted the authority for the City's recording of an official city plat at the time such recording was accomplished. Section 139-18-9 of the 1953 Colorado Revised Statutes provided (and the current version thereof still does provide) that: "Upon the filing of any such plat in the office of the recorder of the county, the boundaries of contiguous divisions of land . . . upon any such plat shall be determined-alla settled as indicated in the plat. . All the other matters indicated u{lon said Pia~ shalIDecreemed bind1ngUPO~ the parhes 'iiCKii'ow e gmg sl.lcn plat" (Emphasis a dear. The subject property has been oficially platted by the City as Block 11, City and Townsite of Aspen, and the City is bound by such designation and cannot now treat such land as undivided for purposes of the subdivision regulations. While Appellant believes that the foregoing rationale completely resolves the present controversy, it deems it appropriate to outline briefly three further legal arguments which will be raised in the event some basis is found by the Board to justify the application of the subdivision regulations to the present case. B. Even if Subdivision Regulations A1{llicable, . D1ty Estopped from RequH1ngComp J.ance at 'ih1S T1me. The doctrine of equitable estoppel has long been applied -7- by the Colorado courts in situations where compliance with certain statutory requirements would result in obvious injustice to the private parties involved. The basic require- ment of the estoppel doctrine is good faith reliance by a private party on acts or representations of municipal authorities, to the detriment of the person claiming the estoppel. In the present case, even if a division of land (within the meaning of the subdivision regulations) is found to have occurred by this Board, such division took place in October of 1972, and it was not until August IS of 1973 that the City notified Appellant that this division was going to be treated as an act of subdividing. In consequence, Appellant naturally assumed that subdividing would be unnecessary for purposes of obtaining a building permit for the new motel, and took a number of costly steps in reliance on such City action. Two sets of architects were retained, and extensive building plans and specifications and architectural renderings prepared. A major contractor was retained, whose fall schedule was substantially designed around the proposed project. Financing was extensively negotiated with major lending institutions around the country, and certain preliminary arrangements entered into. Normally, of course, where subdividing is required the subdividing process is substantially completed before the foregoing activities are seriously undertaken. In addition, in reliance on the several representations made by the City Building Inspector during July and August to the effect that only plan corrections stood in the way of a building permit, Appellant placed a large steel order (steel supplies being relatively short), on which penalties must be paid if delivery is not taken. All of these actions were taken in good faith reliance -8- , that subdividing was not required and that a building permit would soon be forthcoming, and the City is consequently estopped to demand that subdividing be accomplished at this late date. C. to and The United States and Colorado Constitutions provide that "no person shall be deprived of life, liberty or property without due process of law." In addition, the Fourteenth Amendment to the U.S. Constitution prohibits a state (or any political subdivision thereof) from denying any person the equal protection of the laws. In the present case the "due process" and "equal protection" guarantees forbit essentially the same form of governmental action - the selective, arbitrary, or discriminatory appli- cation of the (subdivision) law to a particular person or entity. Simply stated, a law must operate alike on all members of the class to which it applies, ie. upon all persons or property similarly situated, or be violative of the equal protection clause. In other words, the law must be evenly administered. Similarly, due process of law is denied when any particular person of a class (those owning lands platted into lots and blocks) is singled out for the imposition of restraint or burdens not imposed upon, and to be borne by, all members of the class. In other words, equality of treatment under the law is equally essential to due process. The City's action in the present case is a perfect example of the type of governmental action which these con- stitutional protections were designed to prohibit. The Villa motel project represents the first time since the -9- adoption of the subdivision regulations that the City has attempted to apply such regulations to a severance of land titles along officially platted lot or block lines. Indeed, on the evidence of the recent City Attorney opinion letter pertaining to sales of lots (see Exhibit G), it may also represent the last such attempt. No clearer case of selective, discriminatory, non-uniform application of the laws of this municipality could be posited. The City subdivision laws cannot constitutionally be applied in this manner. D. Even if the subdivision regulations are held to be applicable in the present situation, the Building Inspector cannot legally deny a building permit application on the ground that such regulations must first be complied with. Neither the Uniform Building Code (as adopted by the City) nor the City Subdivision Code contain any authority for the denial of a permit on this basis. On the contrary, the Subdivision Code sets forth criminal penalties for failure to subdivide, and such penalties cannot be enlarged upon by the City in its discretion. Section 7-5 of the Aspen Municipal Code defines the responsibilities of the Building Inspector in the following language: "The chief building inspector shall be responsible for the enforcement of the building code, the electric code, housing code, plumbing code, all special hazards codes which may now or hereafter be adopted, and the zoning code of the City." No reference is made to the Subdivision Code, and such code simply not his responsibility. Similarly, the Uniform Building Code provides that when plans conform to the zoning regulations and meet the requirements of the building code, a building permit shall be issued. The Building Inspector -10- , has no discretion to refuse a permit on grounds nowhere mentioned in the laws under which he operates and from which he draws his authority. While the Colorado courts do not appear to have con- sidered this particular issue, the Supreme Court of the State of Washington handed down a decision in 1963 (State v. City of Tacoma, 385 P.2d 372) in which the facts were so closely analogous to those in the present case, and the reasoning so similar to that set forth above, that a copy of the decision is being attached hereto for the convenience of the Board as Exhibit H. In effect, it is Appellant's argument that even if the subdivision regulations are somehow found applicable to Appellant, the Board must reverse the Building Inspector's denial of Appellant's permit application, on the ground that the Building Inspector acted beyond the scope of his authority in denying the application due to failure to comply with the subdivision laws. III. Plea of Appellant. For the foregoing reasons, Appellant respectfully requests this Board to reverse the decision of the Building Inspector denying Appellant's application for a building permit on the grounds that the City subdivision regulations must first be complied with, and order that such permit be issued upon compliance by Appellant with all building and zoning code requirements in effect at the time such applica- tion was filed with the Building Inspector's office. Respectfully submitted this ~~~ay of October, 1973. The Villa of Aspen, Inc. By Hart, cc: Mr. John Dukes, Chairman, Board of Adjustment Ms. Sandra M. Stuller, City Attorney -11- ,',," E..e' -Y /' ,(j" /'/- C ",,' Ir.iI,4If "",J ~,/> /' of ~\ .A~' · II{/.' "",:; "'~~-fl CIT)?~'OF A~PEN aspen ,colorado, iJ1<<!11 box v ~~....t,'" ~~. t, ' August 15, 1973 Ron Windemuller P.O. Box 679 Aspen, Colo. 81611 RE: Villa of Aspen Conference Center Dear Mr. Windemuller: The building department is in receipt of the plan check of your project by the International Conference of Build- ing Officials (ICBO), a copy of their comments being enclosed. There were 25 separate objections but numbers l8(f) (4) and (g) indicate that your plans must be redrawn, at a minimum. In addition, it is the opinion of the planning department and the city attorney that you must comply with the city subdivision regulations before a permit can be issued. An abstract of chain of title has been ordered to sub- stantiate this position and you will be notified by the attorney's office of the exact reasons for required com- pliance with Chapter 20 of the municipal code. For the above reasons please be advised that your applica- tion for a building permit has been denied. Very truly yours, ~~1f=' ' 9 CChl~Yft ~l'd~eyring . 1e BU1 1ng Inspect cc: Shaw Construction Russ peilstick Herb Bartel Sandy Stuller CHM/dc l ~, "E ,t' (/ / g /.;r- .d f-i ~, "'~::ii I ....~ . t, t~~. ,l fk/~. .,1' ; ';l!r. CITY OF A'~PEN aspen,c~loradoJ81? box v ~. it .~~ ""'-~~ September 6, 1973 HAND DELIVERED Arthur Daily, Esq. Holland and Hart Attorneys at Law P. O. Box 1128 Aspen, Colorado 81611 Re: Villa of Aspen, Inc. Permit Application Dear Art: History The title search of the Villa property indicates this suc- cession: 1. In April of 1958 title was quieted in Olivia and Van Sickle with the decree convering this property: "The above tract is also known as Lots D, E, F, G, H, I, N, 0, P, Q, Rand S, Block 5; Lots E, F, G, H, I, 0, P, Q, Rand S, Block 6; Lots A, B, C, D, E, F, G, H, I, K, L, M, N, 0, P, Q, Rand S, Block 11, Aspen Townsite and East and West Alley between Hallam Street and Bleeker Street from west line of Seventh Street to city line, all lying in Blocks 5 and 6, Aspen Townsite, East and West alley in Block 6 lying west of west property line of Eighth Street and running westerly to the city limit line. Also Bleeker Street to the west city limit line of Aspen Townsite. Also Eighth Street from the north property line of Bleeker Street to the south property line of Hallam Street. Also the 1T0rth Texas Millsite, M. S. #3288." 2. In 1963 Howard Lee acquired title to the property by virtue of sheriff's deed with essentially the same description. 3. On January 12, 1970, there was recorded a deed conveying an undivided 1/2 interest in the same property to Ralph Curton,. Jr. This is recorded in Book 245 at page 913. . ' - - ,~, ~--..;; ---'.~ .~ Arthur Daily, Esq. September 6, 1973 Page 2 4. Ralph Curton, Jr., and Howard Lee conveyed two parcels to the Villa of Aspen, Inc., by deed recorded March 13, 1972, at Book 261 and Page 927. The two parcels consisted of: a. Block 11, the vacated alley and a part of the vacated Eighth Street, and b. a second parcel consisting of Blocks 5 and 6, a part of vacated Bleeker Street, a part of vacated Eighth Street, vacated alleys, and the North Texas Mill Site. The conveyances were by metes and bounds description, in addition to the lay description. 5. The Villa of Aspen, Inc., then recorded the Condominium Declaration for Villa of Aspen Townhouses in October of 1972. It appears that the area concerned with was essentially the same as in paragraph 4b, i.e., parcel two in the 1972 deed, though I cannot tell at this point whether they are identical. This will warrant review by the city engineer. There have been, subsequent to the recording of the Declaration, numerous conveyances to individual condominium owners. The issue, the, as I see it is whether the dual transfer to the Villas in 1972 and the subsequent condominiumizing of one of the parcels constituted a violation of the subdivision regulations which, in 1972, provided: "Section 20-2 (a) Subdivision. A subdivision is a described tract of land which has been divided into two (2) or more lots, tracts~or parcels, anyone of which is five (5) acres or less in area for the purpose, whether immediate or future, of transferLownership or ~~ for building development or for street use by reference to such subdivision or a recorded plat thereof. (b) Subdivider. The person including the owner, or agent for the owner, dividing or proposing to divide land so as to constitute a subdivision to be shown on a recorded plat." It is my understanding that the Mill Site and the west ends of blocks 5 and 6 were annexed on August 14, 1972, i.e., after the dual transfer to Villas, Inc., but before the condominiumizing of parcel two. Section 20-4 requires compliance with the subdivi~ sion procedures before dividing any tract of land within our cor- porate limits into two or more lots if anyone is less than five ,...... "- ,. .. If ~ !.t( .., Arthur Daily, Esq. September 6, 1973 Page 3 acres in size. I think we can agree with all of the above pre- mises and data and proceed from there. Legal Principals There are, I think, two basic issues presented by this fact situation: 1. Is parcel "one" a city block; and if so did 2. the 1972 dual transfer or the sale of the first con- dominium on parcel one constitute a division of land within Section 20-2 (a). As to what constitutes a block the only Colorado case even discussing the issue is Town of Cherry Hills Village v Shafroth 349 P2d 368 (Colo. 1960) in which the court said that for the purposes of the disconnection statute land is deemed platted into lots and blocks when it is divided into tracts which are surrounded and intersected by streets which have been dedicated to the pUblic. Query whether the vacation of the Eighth Street dissolves the delineation of the plot as a block. As to the second question: I can find no case in which the issue posited was whether a division of land is not a subdivision because one parcel constituted a city block. The point of time of the division does not seem to help in the .determination. If it was at the time of the 1972 deed, part of the land in parcel two was not within the city and could not be affected by Section 20-2 (a), but part of parcel two was and subdivision might have occurred with the intent of future transfer of ownership. On the other hand, the concept is often stated that, unlike normal subdivision, the mere recording of a final plat for condominiums does not automatically convert a single parcel into separate condominium units and must be at least one condominium unit con- veyed to convert the single parcel into units, County of Los Angeles v Hartford Accident and Indemnity Company, 83 Col. Rpt. 740 (Ct. App. 1970). Consequently, if the subdivision, if any, occurred when the first condominium was sold, all property was within the city and subdivision regulation. Again, if parcel one is deemed a city block does this affect the division of the parcel so as to exempt the process from subdivision regulation. All definitions of subdivision describe it in terms of the division of a larger parcel into smaller ones. No case discusses the issue in terms of parcels containing city blocks. The courts have gone both ways on the question as to . . ,,, - ~'" ~. .~M Arthur Daily, Esq. September 6, 1973 Page 4 whether sale of lots within a block, formerly all in single ownership, constitutes subdivision, and the cases consequently, are of little help. Art, I would appreciate your help in resolving the matter. Unless I can locate some authority that excepts the parceling of tracts when city blocks are involved, I will have to apply Section 20-2 (a) as it reads, i.e., that the division of a tract which until 1972 was conveyed as a single parcel, constituted a subdivision. Very truly yours, . SMS:mw ~ Sandra M. Stuller City Attorney cc: Donna Baer Clayton Meyring ~~ ''-'" .,'; ~. " l'\, :.?' :~. j" ::'~~"'-'~..~. !' ~'i..a ~,::....,_..:........J._ C'''':-),,, _."~." . '-~.;) " ..../ ( C' - C.~CI'~:"~~. "~'.I - r. . ....:<Ul ~~t;n.\y, !ccl\."~d 01 &-~~{ ~1) L-~,-L~n!..ULU (~U cJ.iU:0 E.ef"/ff//- E M cI ~~~~~~-)) 1'/ MJ / / c:dlu /J -cl-",-, 5) C';'t J S P, l'),... < A14 G'; /J? s~11~~~'::;~t-<t , M~, & -c/?u_'-, 9,1.1 ^ V .. ~'- (-;~ ..1......, r/ va(;4!,t~, -ifuO~~~$;jIJ -"4/;. ~~~ ~b ~~ tf';v ;:kdlhr-J *,u:tL-L-~ 13.tAJ1/ ~ 7'1j Sb- ~~ . ~+"'-""'._..m....6m.. OUT .UT 4.11'. . ( . a -~.. . HElE~ ZOkDEl;.'T;;~;~;~-;--;;;'-;iiki'~h'C;~'~tY-'-'-'--- -~~=~'~~~-~cr--~ c-c-' -... 'mr__..~""':;~"i('~;~...~:':9.:.{:::;-',.:;:~~..::..~~:::-.] . ' ;.: yo <.1.1>1;,.(.,'1,\ .,... .' ... ~ If'.;n*' .. " I ' '~~J~!' . ~i,h~cl!:b ;\:o._c.:"?__,:.:!_uh__.Sf_-...t.~.,._..u. . c .. '))1.., /. . , I " / ,..... ~, '.' A'Mn Colo " ." .. . .' .". 1 _c . ......r..................:.....~,....... 972 I $ re; ,; . ....../ / ..?.. First Hoff l !;~Vd Ha:;; f 1,//)-.1 FeR Tf4X~S or 1971 , DISTRICT CODES TAX INTEREST TOTAL . Co. Pred. Animal Fund . State Pred. Animal Fund -- -- Co. Cost of Advertising - ---- .. . , , - -- -- . , ---- ! n ! - ! , i I . , , - I -1C'J7 ! ,- TOTAL ~ .. , -, '7 --=;..-= I I-- I I- I ,-' ,- I /- i- 7~ Please Examine Recl!ipt And See Thot All P,operl,. Is Li.ted Valuation of Reel Esfa:e - $~.m......um___. Valuation of Mine... . . . $.................... Valuation of Personal Prop. $.................... . ,.', .- .' .: 'j -~ ...tt ~ j ..~ 1 ~ ~ , " ~. , 'I..' " _.- '_.r~ " ~, ....' ~" . ,,", ~-* , , , .~ - EY~L?/.r r ..,'.:111 t, l!-.. 1/'/ ""q'J.A"" ./" A, CITY OF ASPEN aspen ,colorado, 81611~ box v . ....- .'-'.;;jI~ "'-..... ~~ . - ,-...."~~,, ."'...... .... May 20, 1971 Holland & Hart Attn: Art Daly Box 1128 Aspen, Colo. 81611 Dear Mr. Daly; Basic Street Assessment for Improvement Dist. #67-1, Acct. #94. Original Owners: The Clinton Company 603 Second Avenue South Minneapolis, Minn. 55402 Legal Description: B1k 5, 18.5' of Lot D. all of Lots E,F,G,H,I Frontage Vacated portion of 8th St. " B1k 11, Lots A thru I " B1k 11, Lots I & S Side Vacated Alley on 7th St. " 168.50' 75.37' 270.00' 200.00' 20.00' $1,348.00 602.96 2,160.00 1,200.00 120.00 Total Assessment $5,430.96 Improvement completed on Oct. 15, 1967. Assessment payable in 10 installments of 10% of the original assessment plus 6% of the unpaid balance per year. 1st Payment was due on June 1, 1968. Bond Redemption began on June 15, 1968. If you have any further questions, please call me. .' Yours truly, kILL Dennis Veeder n~?a~~^~ n+ r~~~~~~ .' ; .J or II Z i~ i- ~~ ~;r,.~ ~........" ~~~ ~~ f~ 1 . . mil ~~ ~ Ci 1;c: ~z c:t - ........ ...... .. ~ JQ rn ~ to~ ~ ~~-~ ..... ~<:> ~~ ~m <.~ m 3- rn Z ~ ../""",,", fJ-',f//d/r- cY 11:[. ,""'" . t, l,tIJ.. ! ~/" , "..~~ ...1' " ~,<:,.."" CITY OF A'SPEN aspen,colorado,616J; hox v \ ,.--~. 'l , , -",,_:.:~ ~.~.. v L ' --~- , -.... September 6, 1973 Kenneth D. Hubbard, Esq. Holland and Hart P. 0; Box 1128 Aspen, Colorado Re: Alton Beck conveyance Dear Ken: I returned your call late Tuesday and found you were attending the P & Z meeting. My apologies for an unclear response. The case law on this point is diverse but since there is no opinion from the Colorado appellate courts we feel free to exercise our perogatives, at least with respect to the Beck sale, and indicate that we do not feel that the sale of one or more city lots which are part of a larger parcel of lots all under single ownership constitute subdivision. Your letter addresses two alternative meanings. The first we would not consider a "division" so as to even bring subdivision regulation into play. The latter we would also exclude as not, at least as far as the Beck pro- perty, within the concerns of subdivision regulation. I trust this will resolve the issue. Very truly yours, SMS:mw " V' .-/? Sandra M. Stuller City Attorney cc: Fred Wooden Clayton Meyring ..., ........ ..... . ,\ ."~. ,.I,..~..J'. ..I" ... n ,./~--\ CITY OF ASPEN .. aspen.colora~o._f!t~}~ box v ~~ August 31, 1973 Ken Hubbard, Esq. Holland and Hart Attorneys at Law P. O. Box 1128 Aspen, Colorado Re: Sale of lots within townsite Dear Ken: Thank you for your patience in waiting for thIs response. I have spoken with the planning office and the building inspection office concerning the requirement of compliance with subdivision regulations in the event of sale of lots within the City and Townsite of Aspen, which lots have previously been designated as separate lots of blocks in a recorded plat and have been under single ownership. It never has been the pOlicy of the city, nor is there great legal basis for asserting, that the sale of such lots constitutes subdivision either within the intent or wording of our subdivision regulations. I hope this statement is of some help. Very ~ruly yours, ~ Sandra M. Stuller City Attorney SMS:mw cc: Nick Falasca Fred Wooden Clayton Meyring .....--- i 1 .J ,Ii ..1 .., t,: i.. , 1.1 "I '...; ':t; .. ., ':::1 ..., ...... ~~ - /., ;E" .I:' ,f/ ".8 /' T /T' '<.,--' --- 372 Wash. S85 PACIFIO REPORTER, 2d SERIES records and files is confirmed by Professor Wigmore when he says: "On the other hand, the fact that an en1ry in a record or account~book docs not exist, ,~'hi1e in a sense it involves the document's terms, yet is usually and properly regarded as not requiring the books' production for proof; * * *" 4 Wigmore on Evidence (3d ed.) ~ 1244; and citing our decision in Hop. towit v. Brown, 115 Wash. 661, 198 P. .370, in support of the statement. [5] We note the word "SIfclly in the foregoing statement, for occasions may arise when the court, in the exercise of its discretion, will find that an examination of the same records and files by the adverse party should be allowed in the interest of fair play and substantive due process. [6] We considered the identical ques- tion in State v. Stevens, 135 Wash. 361, 237 P. 723, a criminal case involving larceny by bank checks. A bank cashier testified that he had examined the records and files of the bank and that the accused had closed his account prior to the date of the check. He said that, as of the date of the check, the accused' had neither an account nor .funds on deposit with the bank. In dis- cussing the dciendant's argument that the bank cashier's testimony was not competent and that the books of the bank \\'ere the best evidence to prove lack of funds, we said: . CI * . * But the argument mistakes the rule. It is the rule, no doubt, that books of account arc the best evidence of the matters whicil they contain, but wher.e the inquiry is as to the state of the account of a depositor with tl:e bank they are not necessarily the best e.....idence. It is competent to show by oral testimony that a person has a de- posit with a bank, or has had such a deposit and has withdrawn it, regard. less of the condition of the bank's books, and any person, who knows the fact and is otherwise compdent to be a "iitness, mar testify oral1y thcrdo. In. deed, books of account ha\'~ ever uc(:n regnrdl,;J as a species of sccunlbr)' evi. dence, admitted as primary evidence because of the necessities of the case, and are not held to preclude other com. petent evidence oi the same fact. Greenleaf on Evidence (14th Ed.) ~ 117; 16 c.J. p. 615; Elderkin v. Peter. son, 8 Wash. 674, I. c. 685, 36 P. 1089; Hull v. Seattle. Renton & Southern R. Co., 60 Wash. 162, 110 P. 804; Hal. verson v. Seattle Electric CO.J 35 Wash. 600, 77 P. 1058." Accordingly, the judgment is affirmed. OTT, C. J., and HILL, ROSELLlNl and HUNTER, JJ., concur. . o ~J(UHUMUtST$1tM , The STATE of Washington on the relallon of Howard J. CRAVEN and Joy B. Craven, his wife, Relators. v. The CITY OF TACOMA, David D. Rowlands. City Manager, and Lester J. Gillis, Building Inspector, Re'spondents. No. 36599. Supreme Court of 'Washington, Dt!'pnrtmcnt 1. Oct. 3. 1063. Rehearing Dcniell l'ov. 20, IDG3. Proceeding for writ of mandamus to compel city to issue building permit. The Superior Court, Pierce County, John. D. Cochran, J., entered jud~ent denying the writ, a11<1 aflpl':11 was taken. The Supreme Court, Hale. J., held that failure of grantor to comply with platting statutes and ordi- nanceS was not ground for city to refuse building permit to bona fide. gnnlee. Reversed with directions to'issue the writ. I. Municipal Corporations C=>621 City code provision regarding building plans alai .specifications and unifqrm build. ~ I I j ing code proy should be i"" form to 1a W$ ;\ city to ma."..::c fl' dition prf1:edl. RC\\'A :S.16." 2. Mualtipal C. Failure of ting statutes ;t! for city to r-c 1 fide grar.tee. 3. Mandamus ( Mandamu formance of ( cretion so exc capricious. 4. Maadamu5 <: Issu~::.ce isterial ~C: i.... upon shD....;n:.: regulations. Dodd & R, Marshall Y R. H=i:"n. for reS'f.~':-:'\!l:. HALE.J'" Relat~rs s. compel Lie c a building p" aled in the Estates oi ~ judgme~: d., peal. 'Ve are C' court G~:~:!:- Korth 5inr grantor to r a large tra'" It plattt-J ,I thereof ior I CountJ Au-!I for 111..:.=y. streets. TI' of th~ ~r, prQved ~y ;. the cor;...lr.'. city of Ta. ,.,-..,., "-.,,# - .~ "',' ,-. . STATE T. CITY OF TACOMA Cite .. 3SCi P.2d 372 Wash. 373 :ICe ing code provision that building permit should be issued if work and plans con- form to laws and ordinances did not allow city to make official approval of a plat con- dition precedent to duty to issue permit. RCWA 58.16.030, 58.16.100. 2. Municipal Corporations €='621 Failure of grantor to comply with plat- ting statutes and ordinances was not ground for city to refuse building permit to bona fide grantee. RCWA 58.16.030, 58.16.100. 3. Mandamus e=28, 72 Mandamus does not lie to compel per- formance of discretionary acts unless dis- cretion so exercised has been arbitrary and capricious. 4. Mandamus €='87 Issuance of building permit was min.. isterial act for which mandamus would lie upon showing of compEance with zoning regulations. .se, "'l- ;.ct. I 'er- :~; = ..a.1- 3S .=d. UN! II.. _d... ;,- Dodd & Russell. Seattle, for appellants. Marshall McCormick, City Atty., Robert R. Hamilton, Edward J. Guenther, Tacoma, for respondents. :'15 to The ::L D. :g the n'eme antor ordi- ~fuse HAL;E, Judge. Relators seek a writ of mandamus to compel the city of Tacoma to issue them a building permit. Their property is situ- ated in the North Shore Country Club Estates of northeast Tacoma. From a. judgment denying the writ, relators ap- peal. We are controlled by the facts as the court dec1nred them in its findings. The North Shore Coun;:ry Club Estates, Inc., grantor to rebtor by warranty deed, owns a large tract of land in northeast Tacoma. It platted these lands and filed the plat thereof for record in the office of the Pierce County Auditor; it likewisc madc sun.cys for many, and :'lctually put in, ccrt:'lin streets. The - conrses, :mgles and grades ~f the streets within the plat wcre ap- proved by the city engineers. Thereupon, the corporation submitted the plat to the ...:.... :...: .,..~......__ ~..... :~.. ...H:~;...l ..........._.........1 "' the ;Iding Duild- as is required by RCW 58.16.030 before any of the lots in the plat may be sold. The city refused official approval, claim- ing that provisions for storm sewers and street construction failed to meet the mini- mal standards set by city ordinance for plat approval. This refusal received con- firmation by the trial court when it found that the streets within the platted subdi- vision had not been surfaced, that the bal- . last in them was substandard, that .the road base contained an excess of silt and fine materials, and that adequate storm drain- age had not been provided. At the outset, relators urged that they were entitled to a building permit as les- lees under a 99-year renewable lease, but this claim was laid to rest under the court's specific finding. The trial judge found that on July 20, 1960-a date subsequent to the execution of the claimed lease- North Shore Country Club Estates ex- ecuted and delivered to relators a warranty deed to lot 6, block 5, in the recorded plat, the land conveyed being more particularly described in the instrument by metes and bounds. This deed was filed for record and indexed as a deed in the office of the Pierce County Auditor. Some 8 months later-and while the plat was still unapproved by the city-re- lators, as owners of a platted lot, applied to the building department of the city of Tacoma for a building permit to enable relators to construct a residence on their property. Officials of the city informed relators that their lot lay in an unapproved platted area, and that it would issue no permits for construction on any properties within the ",orth Shore Country Club Es- tates plat. The city declined to furnish relators with an application form for a permit, and sta.tcJ. that, if one were ten- dered. it would be neither accepted nor proce5sed. its only zroun(Lfor refusal to accent relators' application for. or to issue to them. a buildin::- permit w~s the failure of North Shore Cot!ntry Club Est:l.tes to obtain ~:'prn\.,:d of :B pbt. :\t no time ,1;,1 ..\,... ....;h. ;"~;.n....", ~h.,.. ...,i..tn...". n..n.n.....",.A It..c:it " ~ ". " j ~ ...- ._.. " " .. .., .., . . .~, :,. ,:. '~ " ..'1.<0 I t~ 01'/' ,(v , 4"'1'(,) I .30 l- ( ~ ) '.,,/ - .~ ." ~~ .lll'l( r-"~ _.... - 374 Wash. 385 PACIFIC REPORTER, 2d SERIES plans and specifications failed to comply with the city's zoning regulations or were. otherwise insufficient or defective. [1] Building pcrmits are issucd by the city of Tacoma by virtue of the Code of the City of Tacoma, ~ 2,02,070, which reads: " . . . Plans and specifications _ shall be drawn to scale upon substan- tial paper or cloth and shall be of suf- . Scient clarity to indicate the nature and extent of the work proposed and show in detail that it will conform to the provisions of this code and all rele- _, vant laws, ordinances, rules and regu~ lations. The first sheet of each set of plans shall give the house and street address of the work and the name and address of the o\....ner and person who prepared them. Plans shall include a plot plan showing the location of the proposed building and of every exist- ing building on the property." Immediate responsibility for the issuance of building permits is fixed by ~ 302(a) of the Uniform Building Code (1958 ed.), which has been made a part of the Tacoma Building Code by adoption on October 18, 1960. Section 302(a) reads, in part: uThe application, plans, and specifi- cations filed by an applicant for a per- mit shall be checked by the Building Official. Such plans may be reviewed by other departments of the city to check compliance with the laws and or- dinances under their jurisdiction. If the Building Official is satisfied that the work described in an application for permit and the plans filed there- with conform to the requirements of this Code and other pertinent laws and . ordinances, and [hat the fce specified in Section 303(a) has been paid, he shall , is.ue a permil Iherefor 10 the appli- cant." (Italics ours.) The city claims that, under the fore- going provisions, it can make compli:mce with all other pertinent laws and ordinances conditions precedent to its duty to issue a permit, and argues that it may, under these ordinances, make official approval of a plat oQe of these conditions. Under this theory, and by virtue of powers claimed through RCW 58.16 et seq.,/iiie city says that it can properly deny a bl1ihling permit to one intending to build on property with- in an unapproved but platted area.-j 'Ve think that the city has mistaken its' remedy. Under one of the sections of the statute by which it claims the right to re- fuse a building permit it could have en- joined the sale from the platter, North Shore Country Club Estates, Inc., to re- lators, or enforced a penalty against the grantor under RCW 58.16.100, which states: "The owner or agent of the o:wner of land located in a plat or subdivision, who' transfers or sells, or agrees to sell or option any land by reference to or exhibition of or by any other use of a plat or map of a subdivision, before it has been approved and filed shall for. feit and pay a penalty of one hundred dollars for each lot or parcel so trans- ferred, or sold or agreed or optioned to- , be sold. The description of the lot by metes and bounds in the instrument of transfer, agreeing or optioning, shall not exempt the transaction from the penalty, or from the remedies herein provided. The city, town, or county authority may enjoin the transfer, sale agreement, or option by action in the superior court, or may recover the pen- alty in a civil action * · *." of lact Sl1g~cst :: bona fide in the;, ing permit. [3,4] We .,' mandamus docs. formancc of ~: discretion so C~: and capricious. 211 405. 267 P.2,J upon by relat.', asked for a bll c, %cning reguht: not discretiO!::,-: building depar:: cretion to rcil:~" if the propose: zoning- regula:: the appropriatC" cant, the bui~t;i the building F the departme:1: to in form oth" emment cone: ~ erning the t~::: an intergoY~:: not grant to , the public or::" expressly done: Our view, tl ing permit i5 mandamus "':.' the zoning r~ " perted, by a." :Munns v. 50:... 7 P.2d 67. It ..." officers coul"': nocent. pur~:~:' cause he b~ vide.] tract. ptrmit as a - residential ~ of the suW:'. ing that the." is a ministcn;; limited to : structure r.~' court comr~ permit by no,,' If we bear ' mit in the:' [2] But the statute does not suffer the- city to visit the sins of the grantor upon. the grantee. Both the provisions for fixing a penalty and granting injunctions in the fc.regoing statute are directed against the owner of land, or his agent, \vho transfers o. sells it before the plat or map of the subdivision in which it lays has been ap.. proved. (rhey are not directed against a. bona fide purchaser, and failure of the grantor to comply with the platting stat- utes and ordinances does not gi\'e the city grounds to refuse his bona fide grantee a building permit,) Nothin'g ill the findings, --. a .5 i 3 :$' ::.. - ~~ :it. .~ ,e- ::1,.. _. ~ ~e ~- ~- ~e ?-". a 2e. .,- -:y a ~- . ,.r'-- ""-" .." \ , IV !:Ii - '...-- STArn v. CITY or TACOMA Cite as 3S5 P.2d 3i2 Wash.. 375 of fact suggest that relators are other than lrona fide in their efforts to obtain a build. ing permit. [3,4] We agree with rcspondents that mandamus does not lie to compel the per- formance of discretionary acts unless the discretion so e'~erciscd has been arbitrary . and capricious. Stoor v. Seattle, 44 \\'ash. 2<1 405, 267 P2d 902. But the acts called upon by relators to be done when they asked for a building permit under the city lening reguhtions and building code were not discretionary but ministerial. The buildinJ! deoartrnent of th~ C"itJr h;:tQ nn-;rr;;:- creHan to refuse a p~rpit save to asc~:~ II the pro~~~'st~uct~~~~~p}ies with the_ -'oni~iiulatio~ Once that is done and lb. appropriate lee tendered by the appli- cant, the building department must issue the building permit. While the staff of the department may properly be charged to inform other divisions of the city gov- ernment concerninR' violations of laws gov4 erning the use of land, this is and remains an intergovernmental procedure and does not grant to or enlarge any discretion in the public officer where it is not otherwise expressly done so by law. Our view. that the issuance of a build. ing permit is a ministerial act for which mandamus will lie where compliance with the zoning regulations is shown, is SUP4 perted by a quite similar case reported in Munns v. Stemmn. lc 2 CaL\pp.2d 5~3. 31.. P 2d 67. It was there held tr.at the city's officers coulu not lawful!y pr..:\"cnt an in- nocent purchaser the use of his J.UiJ be- cause he bought into an ilkgJ.lly 5u:..di- vided tract. The city refused the building ptrmit as a means to force the O\vners of residential lots to compel the dc\'clopcrs of the suh~h"i5ion into compii:i.llCC. HuI,!- ing that the issuance of a building permit i3 a ministerial duty, and that discretion is limited to ascertaining if the proposed structure meets the zoning standards, the court compdlcd issuance of the building permit by mal1(bmlls. If we bear in mind that 11le hlihling- per- mit in the instant case was reiused hy the city solely because the lot on which the residence was to be erected lay within an unapproved subdivision, and not because the proposed structure would violate the zoning regulations or depart from the ordi- nances governing construction practices, we can see the ready application of OllT rul-.. ing in State ex reI. Ogden v. City of Bel. levue, 45 Wash.2d 492, 2i5 P 2d 899, where we said: "A property owner has a vested right to use his property under the terms of the zoning ordinance apQlicable there- to. State ex reI. Hardy v. Superior Court for King County, 155 Wash. 244, 284 P. 93. A building or use permit must issue as a matter of right upon compliance with the ordinance. 9 i\m. Jur. 203, S i. The discretion permis- sible in zoning matters is that which is exercised in adoptiJlg the zone clas. sifications with the terms, standards, and requirements pertinent thereto, all of which must be by general ordinance applicable to all persons alike. The acts of ac.ministerir.g a zonbg ordi- nance do not go back to the questions of policy and -discretion \....hich were settled at the time of the adoption of the ordinance. Administratiye author- ities are properly concerncd with ques- tions of compliance 'with the ordinance, not with its wisdom. To subject indi- ,.iduals to questions or policy in ad. ministrative matters would be uncon-' stitutional. Art. I, ~ 12, of the con. stitution of the state of \\"ashington,. provides: u 'X 0 1:1. \\" shall be passed granting to any citizen, class of citizens, or cor. poration other than nHI::i-:ipal, privi- leges or immunities which upon the same terms shall not equally belong to all citizens, or corpo~ations.'" Once the application for a building- per- 1}lit and the plans and specifications tikd 'iJth it show that the nroooscd buildin1! will conform to the zonin:: re~ulatiol1s and _i(wct the ~trtldllfal n:lIl1:rcmcnts of the buiklin~ cmh: of the cit\., the pcrmit sh::1I1 -- , ~ + . . t \ . t ., j i < ~t I 1 \ t , -j i , , 1 1 t , i . . . , '., "I t. '.. -, .'01 '" , " ~ ;-. -, "I " ..1 .. .' r-, -- - . . .,-- "' ~ ~_.. ~-~,,:,- .,.., -~:. ~-' ..... -- .~~ 376 Wash. 385 l'ACIFIC l!.El'ORTER, 2d SERIES ilsue as a matter of right. and the ordi. nances vest no discretion in the building deoartment of the cit... to refuse either the application for or to deny the issuance of the building: permit. Reversed with directions to issue the writ of mandamus in accordance with the views herein expressed. HILL, FDfLEY. ROSELLI"r and HUNTER, JJ., concur. w o ~llYIlUPl'!'slSn" T The STATE of WashIngton ex reI. Roy A. DAWES and Ruth Dawes, his wife, Appellants, Y. WASHINGTON STATE HIGHWAY COM- MISSION, Ernest A. Cowell, Chairman, Ernest J. Ketcham, Robert L. Mlkalson, George D. Zahn, and James M. Blair, Jr., members thereof, Respondents. No. 36892. Supreme Court of Washington. Department 2. Oct. 3, 1963- Proceeding for review of a decision of the highway commission approving a plan for a limited access facility. The Su- perior Court, Thurston County, Charles T. Wright. J., upheld the commission and an appeal was taken. The Supreme Court, Weaver, J., held that limited access high- way statutes leave question whether con- templated use be really public a judicial question and require state to prove ju. dicially its right to certificate of public use and necessity and are not unconstitutional as foreclosing owners from contesting is- sue of certificate of public use, and that ree. ord did not permit court to say that action of h:ghway comP.11::sintl on approval of plan for limited access bcilit)" '\vas arbitrary and capricious or unsupported by material evi. dence. Affirmed. I. Constitutional Law <?48 If statute is subject to two interpreta. tions, one rendering it constitutional and the other unconstitutional, Legislature will be presumed to ha ye intended meaning con- sistent with constitutionality. 2. Eminent Domain (;:>169 \-Vhen objectives of limited access highway statutes of requiring highway di. rector to prepare and present plan, giving abutting property owner opportunity to be heard and to present alternate plan and gh"ing highway commission opportunity to correct or modify proposed plan have been accomplished, statutes have served their purpose, and condition precedent necessaf)' before state may maintain eminent domain action has been established. RCW A 47.52.- 072-47.52.075. 3. Eminent Domain ~68 Limited access highway statutes leave question whether contemplated use be real- ly public a judicial question and require state to prove judicially its right to certifi. cate of public use and necessity and are not unconstitutional as foreclosing owners from contesting issue of right to certificate. RCW A 47.52.001 et seq., 47.52.072-47.52.- 075, 47.52.074, 47.52.075; Canst. art. I, ~ 16; Amend. 9. 4. Eminent Domain €==I196 Record did not permit court to say that action of highway commission on ap. proval of highway director's plan for limit- ed accesS facility was arbitrary and capri- cious or unsupported by material evidence. ReWA 47.52.072-47.52.075, 47.;2.012, 47.- 52.073, 47.52.07-1-. Eisenhower & Carlson, Paul Sinnitt. Tacoma, for appellants. John J. O'Connell. Atty. Gen., Delbert W. Johnson, Asst. Ally. Gen., Ol~'mpia, for respondents. ~1 ..- 6T WEAVEI In State Court, 52 \'. (1958), "T condemn t: abutting atl purpose 0 f facility wit- ticn prece!: tailed by tl through R' This ap' of interpr certain III as applic,,' are set for In shO'o an existi! lished as abutting j notice 0 i portunity RCW authorit: summar; ment 0; u * . . -as to till I \ t. new _n";1 atn-." a liI-- . . be ",. OPIl'H PrfJli . . quit'. , , \ . I . i ! ! I I t 2.. nt', u.\t dt'" nlll". dUf'" of ,1 limit th,-- or..' . ... .:l ,.. I"' - r. bt'l t' - -~.._/'... 1- .~~ ,..... . ~ ........,. :~:' -:;-4.~-~1f(;- t.c ,J 5 WAR T & ASS 0 C I AT E SIN C. / ARC HIT E C TU R E " 645 CHERRY ST. S,E. / GRAND RAPIDS 'vIICHIGA:'-< ~C)S\d . hlh ~-,.;.qc'l>q DATf:: Octob,'r 30, J973 I'\VOTCE '\0. 72:0; - 1 D TO: Mr. Ron Wind,'muller lIS} Washington Grand IIavl'!1, tvlichig<1rt RE: Villa of Aspen Conference CentC'r ------------------------------------------------------------------- Architectural services from 9-15-72 thru 9- 30-73: Principals time = 700 hours @ $25. OO/honr = Drafting time = 448 hours (01 $15. OO/hollr- $17, .,00. on ~_7 2 0 ..!.~~ .-:.-.!. ~ ";. (, (I Flights and Expense" in Aspen: 4-12-73 - Airline Ticket 5-15-73 - Airline Tickd 5-15-73 - Meals 5-15-73 - Motd in Denver 5-15-1"\ - Colorado Registration 8- J{,-7, - Lunch on way to Aspen 8-16-73 - Dinner in Aspen 8-16-73 - Colorado Registration " 103.73 2l2. ~-+ 4.30 1'.\.00 50.00 6.00 :;q .2'; 40.un 50 4S'J.02 Pielstick ~.. Rosolack - Al'chitectul'al C<lnsult~nts - Invoices: 6- 1-73 - Invoice No. 12 7-31-73 - Invoice No. 26 8-31-7, - Invoice No. 37 q- 7- 7:>' - Invl)ic(' NIl. .11. $ {J(14.50 280.07 ] 5>1. 2'1 _~ .~ (). n ~ . I. ...."1 . .1"'" ~ - 2 - F reel Fichter Assoc., l11C. - Consulting Enginec rs - Invoice: 7-31-73 - Invoice No. 7331-0J Singletun Reproductions - Printing: 6-31-73 - Invoice No, 1733 6- 31-73 - Invoice No. 1714 Kelly Girl Services: 5- 31-73 T"tal Balance Due :; "'"'I ,-<./ (, j R. 7'; $ lcl.72 90.08 s 5:' - 1 .....J. ~ (dR.75 $ 108.80 s :;'::.30 $2 to, .04 : . 94 -~-.- .----.. ._~----_.- ._. -- - -.-__._------~- -,_.._~-_._-~------,.- --_....-.... /' '~, ,/ November 5, 1973 MEMOHANDUM TO: MEMBERS OF DOARD OF ADJUSTMENT FRm!: SANDRA M. STULLER, CITY ATTORNEY SUBJECT: APPEAL OF VILLAS OF ASPEN You have received the written materials submitted by Ar~ Daily on behalf of Villas of Aspen. In response I am hereby sub- mitting counters to his arguments which I hope you will read prior to the hearing on Thursday. We both appreicate that making such determinations are difficult, so I hope to make this memorandum and my presentation as clear as possible so that the issues can be clearly presented. Factual Background Prior to March of 1972 all of Blocks 5, 6 and 11 and the North Texas Mill site belonged to Ralph Curton and Howard Lee. On March 13, 1972, they conveyed all this interest in two parcels to the Villa of Aspen, Inc. The parcels consisted of a. parcel one: Block 11, the vacated alley and a part of the vacated Eighth Street; and b. parcel two: Blcoks 5 & 6, a part of vacated Bleeker Street, a part of vacated Eighth Street, vacated alleys, and the North Texas Mill site. The conveyances were by metes and bounds description. On August 14, 1972, the Mill site and the west ends of Blocks 5 and 6 were annexed. In October of 1972 a condominium declaration was filed covering that parcel designated above as parcel two. During 1972 the Code included the following definition of subdivision: "Section 20-2 (a) Subdivision. A Subdivision is a described tract of land which has been divided into two (2) or more lots, tracts or parcels, anyone of which is five (5) acres or less in area for the pllrpose, whether immediate or future, l"~" '"', j' /~, ,.<' of transfer of ownership for building development or for street use by reference to such subdivision or a recorded plat thereof. (b) Subdivider. The person including the owner, or agent for the owner, dividing or proposing to divide the land so as to constitute a subdivision to be shown on a recorded plat." It is the City's contention that the March, 1972, conveyance constituted a subdivision as described by the Code at that time. It is worthy of note that all alleys in Blocks 5, 6 and 11 had been vacated, as had Eighth Street (which lies between Blocks 5 and 11). I would like to counter Mr. Daily's arguments out of the sequence in which made, if you will bear with me. Counter to Applicant's Contention that City Building Inspector Has No Authority to Deny Building Permit Application on Ground That Subdivision Law Not Complied With. In support of his argument Mr. Daily cites State v City of Tacoma 385 P2d 372(Washington 1963). In Tacoma the applicants purchased two lots from an intended large subdivision prior to pIa t approval. The court held that the subdivision regulation cannot be interpreted to allow the city "to visit the sins of the grantor upon the grantee.. ... Both the provisions for fixing a penalty and granting injunctions in the foregoing (subdivision) statute are directed against the owners of land, or his agent, who transfers or sells it before the plat or map of the subdivision in which it lays has been approved. They are not directed against a bona fide purchaser, and a failure of the grantor to comply with the planning statutes and ordinances does not give the city grounds to refuse his bona fide grantee a building permi.t." This is certainly not the case here. For some unexplained reason, Villas took title to a single tract of land in two parcels, condominiumized one tract and retained the other for its own improvements. I think a case more in point is Pratt v Adams, (2) ..r-- '"' "'.",,", ....j 40 Cal. Rpt 505 (Calif. 1964), which concerned two married couples who purcbased 46 acres of land, and to avoid the subdivision requirements, took title as joint tenants, conveyed to four other couples as joint tenants, and then commenced a partition action to have it divided among the 12 married people involved. Each person then divided his or her parcel into four parcels. (Note partitions by order of court are usually exempt from the definition of subdivision and the regulation here defined subdivision to include only division into five or more parcels). The time between the purchase of the single parcel and the ultimate division into 38 took about four months. During these maneuvers, the local planning commission was holding hearings on rezoning the land, considering a single family - three acre minimum district. The rezoning was enacted. However, the county code provided also that a rezoning could not affect the right to build upon a lot providing "such was a separate lot or parcel of record or shown on a map of a recorded subdivision on the effective date." The original lot owners then made application for building permits arguing the rezoning did not affect their property. The permits were denied on the argument that the procedure followed was in violation of the local and slate subdivision regulations. The court upheld the refusal stating: "This is not a case in which a building permit has been denied because of some old violation of subdivision laws, possibly done by predecessors in title to the applicant; it is a case where the permit is sought as the culmination of a plan to circumvent the law by one of the planners. The courts will not assist, by equitable process, the fulfillment of this plan." Here, the Villas took title, to what was before a tract held in single ownership, by a single deed conveying the tract in two parcels. The Villas then conveyed one parcel to a condominium (3 ) /'"'" , .' association within seven months. In the summer of this year Ordinance 19 affected the balance of the Villas property. The Ordinance excepted permit (as this was) applications pending but a permit is not deemed pending unless all subdivision require- ments have been satisfied (if any are applicable to the project) on the effective date of the Ordinance. Consequently, the Villas of Aspen, Inc., is in a situation not unlike the permit applicants in Pratt, i.e., only if the subdivision requirements are held not applicable to their property will a land use regulation (Ordinance 19) be deemed to affect their intended use. Counter to Applicant's Argument that Subdivision Regulations Are Not Applicable in the Present Situation. The thrust of Villas' second major argument is that inasmuch as Blocks 5, 6 and 11 have already been designated as such on an official city map, any conveyances in which they are kept in tact cannot constitute a subdivision of land. In sum, the appli- cant states "There has been no modification of or interference with the land divisions created by the city, and thus no further division has taken place." Let me note, first, that there has indeed, in the history of this tract, been "modifications of... .the land division created by the city" inasmuch as Eighth Street and all the alleys have been vacated. Consequently, one of the most important functions of an official map, that is, to cause dedication of land for public access, has been negatived. But more importantly, I do not think Villas' theory will survive comparison with American case law. Courts have several times discussed the i.ssue as to whether or not the selling of a lot or lots in an officially recorded map constitutes a subdivision. The Courts' reasoning should be helpful here. (4) /""\ "~J In Loechner v Campol~, 231 A2d 553 (M. J. 1963) plaintiff attempted to sell two of five contiguous city lots designated on a January 1900 city map. She argued that the existence of the mapping made inapplicable the subdivision requirements of the city as once a map is filed the individual lots never lose their separate xentities regardless of how many contiguous lots remain in or are assembled into one ownership. The Court disagreed: "This reasoning ignores the differences in purpose of the two acts. The objectives of the Old Map Act and the Sub- division Act are completely different. The history basic purposes of the Old Map Act were.... .(a) to provide a method for officially filing maps so that future conveyancing instruments might refer to a parcel of realty by reference to the lot numbers as delineated on the map and (b) to set forth sound engineering standards for maps so filed so as to avoid surveying errors. On the other hand, concerning (subdivision regulations), they were designed to afford municipalities desiring the advantages of their provisions to enact comprehensive regulatory standards which would facilitate sound and orderly future munieipal growth along preconceived lines, in short, a planned community growth." The Court found that the Old Map Act was subject to subsequent valid exercises of the police power in zoning and other land use controls. In accord is Ryan v Woodridge 231 A2d 562 (N. J. 1962), Lake Intervale Homes v Parsippancy-Troy Hills 147 A2d 28 (N. J. 1958) . The State of New Hampshire has taken a like position in Blevens v Manchester 170 A2d 121 (N. Hamp. 1961). The landowner had from 1936 to 1956 acquired land all of which had been sub- divided into lots with the city surveyor's or engineer's approval. Sales were made with reference to the recorded plat. Subsequently, subdivision regulations were enacted and the city attempted to (5 ) (""" ~",.,./ "\ ,~ apply them to future sales by the landowner. The Court sustained the city: "Statues regulating the subdivision of land seek to promote the orderly and planned growth of relatively undeveloped areas within a municipality. Planless growth and haphazard development accentuaremunicipal problems in a demand for streets, water and sanitary services which have a direct relation to traffic safety and health. The subdivision of land has a definite economic impact upon the municipality and hence the regulation of subdivision activities has been sustained as a means by which the interests of the public and the general taxpayer may be safeguarded and pro- tected. Since the subdivider of land creates the need for local improvements, it is considered reasonable that he should bear the cost rather than the municipality and the general taxpayer..... The subdivision law and ordinance apply to all of plaintiff's lots shown on their recorded maps which are unsold and any conveyed after the subdivision ordinance was approved by the city. This is not a retrospec- tive law." Lifewise is Toothaker v Billerica 193 NE 2d 582 (Mass. 1963). Consequently, I feel there is enough case law to support a demand for satisfaction of subdivision requirements when any city lot, formerly under single ownership with adjacent lots, is conveyed. However, as is evidenced by the letters to Ken Hubbard submitted by Art Daily, in the case presented by Ken this office did not require compliance with subdivision regulations for the following reasons. Such transfers concern lots on existing streets in a developed neighborhood. In such cases there can be little basis for apprehension either that the purchaser will be bilked into buying a lot which is unusable for lack of improvt,mcnts, or that the city will be forced to install major improvements. The character of the neighborhood is fixed so it cannot be materially affected by this technical subdivision of the land. (6) ,..... '- <, ,~ However, none of these protections exist when a large parcel is conveyed, consisting only partially of city blocks and lots, when adjacent streets and alleys have been vacated and proposed development will have a major impact on the community. It is submitted that in such cases the intents and purposes of subdivision eome into play and demand compliance with Chapte-r 20 of our Code. Response to Applicants Contention that City is Estopped From Requiring Compliance and that Application of Subdivision Regu- lations Would Deny Applicant Due Process and Equal Protection of the Laws. These arguments lend themselves to more casual presentation and the City's response will be made orally at the time of hearing. Respectfully submitted, Sandra M. Stuller City Attorney '-. v";l'.EkSE.1' tu:.t'ukI L1~._ PARTS OF BLOCKS ,/~- .&~I,::...' ~d on UNITS OF V' .A OF ASPEN. C("~) / - \ '\ ;-- \., 1.';"'--' 1 )':' . 12, 17, 16, 18. 10 and 4, C " T of Aspen '\ Joe and Anna Borgeson, P.O. Box 143, Aspen, Co. Lots A, B, " C Block 12, C " T of Aspen. 2. Edwin P. and Anna R. Knirlberger, 2025 Clark Avenue, Granite City, Illinois. Lots D, E, F, G, H, " I Block 12, C " I,of Aspen. 3. Gene T. Frey, P.O. Box 626, Aspen,"Co. Lots A, B, C, D, E, & F, Block 18, C " T of Aspen. -./4;) John W. Herbert, Pitkin County. (....r" Lots A, B, C, D, E, F, G, H, I, K, L, M, " N, Block 17, C & T of Aspen. 5. Lester and Shirley Matz, 1020 Cromwell Bridge Road, Baltimore, Maryland Lots K, L, M, " West 27 feet of Lot N, Block 16, C & T Aspen. 6. The United States of America Lots, M, N, 0, P, Q, R, " S, Block 10,C & T.of Aspen. The Golden Barrel, Inc., A Colorado Corporation. Lots K & L, Block 10, C " T of Aspen. Dorothy S. Rutherford, Aspen.\~DI4 ~\" Gage Behunin, City and County of Denver. '\ 'J~ L U Lots Q, R, " S, Block 4, C " T of Aspen .:::..- 7 . \ -'-' / r'....c'-,l boo 't....'~....-o;:-~-\. i".' )." 9. Villa of Aspen Townhouses . \ Unit 1: .\ Unit 2 : Unit 3: Unit 4: Unit 5: :"-",Ud t 6: Unit 7 : Unit 8: Unit 9: Unit 10: Unit 11: Unit 12: Unit 13: Unit 14: Unit 15: Unit 16: .J . , Unit 17: ,Unit 18: : Unit 19: Unit 20: Unit 21 : Unit 22: , ---.~,Unit 23: Unit 24: Unit 25: (;,,{-11~ ~it 26: I5t r J't\' )lnit 27: --ehit ~: ...JJai t C19 : Unit 30: Unit 31: ,Unit 32: , ! Unit 33: . Unit 34: Unit 35: Edward C. Ganz " Murial F. Ganz, Pitkin County. FSol LI.o '2~ Marion Neil Lyeth " Munro L. Lyeth, Pitkin County. :~ \ ~ I Luda C. Gelas, P.O. Box 1222, Aspen. Richard T. " Grace O. Doyle, 3711 Castlidge Dr., Austin, Texas. J. Bernard Maye " Lene Maye, P.O. Box 703, ASEen. R. H. Windemu11er, Pitkin County. OO1-b7'4 Frank W. Mezek, Jr. 1020 E. Durant St. #301, Aspen. Philip A. Merten" Lorine L. Merten, P.O. Box 2869, Aspen. John F. Doremus, Jr. & Catharine Doremus, P.O. Box 164, Aspen. Harold A. " Beverly J. Hadson, 2878 S. Oakland Circle, Denver, Co. Betty M. D'Bartolomeo, 26612 Ridgefield, Warren Micnigan 48089. Jack A. Bosgraaf, Pitkin Co~n~'y:, J;J~C,0' ,;-c' ,~, i" " C::, ~'r.' ' ,I ~: John Thomas" Jane A. Ke11y;Jp.O. Box ~e Car~~nJa,:j:e, Co. I Thomas E. Waltner" .David O. May tag , P'.O. Box(3,,6l2, Aspen. Patricia P. " Houghton M. Trott, Pitkin County'. I Cj q~) Peter Van Domelen & Nancy Van Domelen, 324 Gracewood, S.E., Grand Rapids Michigan. Thomas P. Gray, Donald H. Engen, Frederick S. Richards, and John R. Freudenthal, 907-llth Ave., So. Apt. 4, Hopkins, Minnesota. Paul Fischer, P.O. Box 2108, Aspen. , Nancy Lee Hines" Earl R. " Eleanor A. Wickham, Aspen, Co. ~ Donald L. -" Sandra E. Simpson, Dental Company, D.C. #4, Ft. 'Leonard Wood~ Missouri. Denver Enterprises, Inc., a Deleware Corp., 10 Columbus Circle, N.Y., N.Y. Tage J. Pedersen, P.O. Box 1092, Aspen" Ole V. Ebbesen & Karen K. Ebbesen 1905 Simms St., Lakewood, Co. 80215. Nils-Bertil " Fredricka Dahlander, Aspen, Co. ''2><>-1. I e.e \ Robert B. Wood, 850 Sutton Place, Witchita, Kansas. Chris T. Chacos " Terry L. Chacos, " David V. Batterson, P.O. Box 7013, West Village. Patricia Ann Ward, Aspen. Kay Ellen Hamrick, P.O. Box 1433, Aspen. " ,..? ' ""> ---' ...~ _.' Martin H. " Sharon Kahn, Unit 28, Villa Townhouses. i',)! Asgier Christiansen" Craig Teter, Pitkin County. Neal C. Groff" Stephen H. Casey, 4211 Arcady, Dallas,Texas. Thomas J. Rudder, D.D.S. 1337 Waverly, Grand Haven, Michigan. Herbert F. & Lila M. Bartel, P.O. Box 2914, Aspen. , Harvey Block, Pitk,in County iJ c'), 4- '1'-"; j ,,<. ';;"'1 C": Robert Starodoj, P.O. Box Q, Aspen. James T. McCullough, P.O. Box 923, Manhattan, Kansas '-- (f;,- I' . 66502. / / . ,~ 1 .~) I I I I , . , ! , . I I . l t , , I .( i '//f t , ""'>0" .... .'. -. ' - ----- - ..... . ...............' DRG f ";'<1 \,~. , '::'1"......i\''''\/\D ._-,:.'. . p.1..G~1 Ot- , ' ~ ~. ..- ~-t-.:--{ .~.J .- " ,'~ , ~<,;.r'.- ........../ .. ,:r'l~ c. N IfCr-.~~' " _/ - -~-. , . 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RECORD OF PROCEEDINGS 100 Leaves Regular Meeting ART DAILY REMO LAVAGNINO ART DAILY JOHN DUKES REMO LAVAGNINO ART DAILY REMO LAVAGNINO AR'r DAILY REMO LAVAGNINO ART DAILY REMO LAVAGNINO ART DAILY FRED SMITH ART DAILY ,l Aspen Board of Adjustment ,November 29, 1973 Case #73-29 Appellant: Villa of Aspen, Inc. "Since we will be discussing a number of issues, I would welcome questions from any member of the Board at any time. I don't mind at all being interrupted. I'd like to open up a map and refer to it through this. I have extra copies of this if any of you would like to have any of them. We might just quickly take a look at the property that is involved in this matter. It really involves all of the property shown on this survey - that being Block 11 of the City of Aspen, the vacated part of 8th Street, the line between Block 11 and Block 5. Is it listed on here as blocks, or are you talking about parcels? All I have here is parcels. All right, perhaps it isn't all that clear. There is al- so a block, a numeral designation, in each of these is pretty vague. Blocks 5 and 6 have, of course, always been just partial blocks since the dividing line that comes down through the survey in this direction, was at one time, the Aspen Town- site line. The parcel lying to the west of Block 5 and 6 is the North Texas Mill Site. You can see the vacated part of 8th Street in here, and vacated alleys in each of the blocks. Before we go any further on this, I'll reiterate again that the next two cases - if anybody is here for theill - the Viking and Tom Benton, if they would care to leave and be back in say, forty-five minutes or something like that, please feel free to do that or you're welcome to stay. Whichever you would like to do. Sorry for the interruption. I have another interruption. As you mentioned in your brief - a portion of 8th Street, as I remember. Was that li's-ted on here? It's shown right here between Block 11 and Block 5. And that dotted line where .it says ditch? That's - Part of it? Yes. I think the lines can be seen if you just bring the extension of the East line of Block 6 on down. That is one boundary, and the other can be seen in the middle. Oh, in the middle. Well, it actually goes through both of the buildings. Art, would you like to give us one more (map) up here? Just to fill in a little bit more of the factual back- "---'" 2..... RECORD OF PROCEEDINGS 100 Leaves FORM 10 C.F.HOECKElB.B.IlL.Co. ground on this that I didn't pick up in my memoranduw. In 1957, the owner of the property at that time, I think, was Howard Lee. He petitioned the City for the vacation of 8th Street and the alleys, as they went through these properties. I think his argument at the time was the streets have not been used by the public for many, many years and that they simply weren't needed for access. The City agreed and vacated the streets, by Ordinance #1 of 1957. It stated in the ordinance that these streets and alleys, in the event these streets and alleys were vacated, substantial improvements could be constructed on the pro- perty and the taxable value of the property increase there- by. I might mention at this poin that, contrary to the City Attorney's contention in her answering memorandum, that this vacation somehow negated an important function of official mapping - that being to p~ovide public access to lands. The vacating ordinance also provides, in one of it's "WHEREAS" preliminary clauses, that the deter- mination was made by the City that such public access over these particular thoroughfareS was no longer neces- sary on this property. Howard Lee then built the exist- ing Villa complex and named it ViII Lamar, after his wife Hedy Lamar. From the map, you can see that two of his three buildings extended, at that time as he built them, more than halfway across the vacated portion of 8th Street. He left Blocks 5 and 6 and the North Texas Mill Site un- improved and intact and they have remained in that state until last year. Lee went on to lease out the motel and all of the land that he owned in that area for a number of years to different parties. The lease eventually ended up in the Villa of Aspen in approximately 1968 with an option to purchase the land in the lease arrangement. In the latter part of 1971, early part of 1972, the Villa decided to exercise that option and acquire the land. At this point, I'k like to discuss one of the arguments raised by the City Attorney in her memo, and that is that when the Villa took title to this land, they took title by one deed, which described the land in two parcels and the City Attorney raises the question whether or not this, in itself, constituted the subdividing of the land. Well, there is a very simple reason, a very practical reason, for the Villa's dividing the land up like this in its deed into itself, and that was that they had, at that time, plans to develope the portion of the land, which has recently been developed, into townhouse condominiums , and the institutional lender that was involved, that was lend- ing the Villa money to make the acquisition and was also going to be involved in the financing of the construction of these units. The lender suggested that "Look, we're going to be releasing units eventually from a mortgage. Let's have two property descriptions so that we can leave a mortgage on the front part, the existing developed part of the land, and release partially each unit as it is sold out of the back part of - out of a separate piece of pro- perty." Now, in other words, there was a practical reason. The su~veyor was simply asked to provide us, prior to closin~, with two descriptions. The title insurance was given to us in two descriptions and its our position that there was simply no subdividing involved at that time. All the tract went into one ownership by one deed and until there is a severance of title, there really is no subdivi- ding under our laws as they read then or as they read now. There was certainly no intent at the time to get around , -2- .......c, 11.:'" . RECORD OF PROCEEDINGS 100 Leaves FOR~ 5<1 C. f. HO~CKEL B. B. III l. co. existing subdivision regulations. No one even considered that the question of subdividing would be raised simply because it didn't fit the definition. Until the Villa took another step with the property, is what I'm trying to say, until they sold off something, there really was no. division of land. I suppose you could say that the description of l~nd like this a- Block 5, 6, 11, a vacated street, and the North Texas Mill Site is a description of land in separate parcels. The Villa then began planning its townhouse development, following purchase of the land and determined that, after a number of discussions with the Planning Department, that the annexation of the North Texas Mill Site would be a very logical step, since the land that was being developed was partially in the City and partially in the County. Even the first phase of the townhouse development would fall across that line. That dividing line really falls on the crest of the hill out there. The annexation procedure was then begun and a really lengthy series of hearings were held before the Planning and Zoning Commission and before the City Council. I think we were before each one of them three or four times. Of course, we had a number of discussions with the Planning Depart- ment. DurIng these hearings, the entire project, particu- larly the first phase of the proposed condominiumization, was reviewed in detail by all of these boards. Access off of Highway 82, of course, was a very important consideration A number of changes were made to make it a safer access. The number of parking spaces, the location of parking, the landscaping questions - all of these were gone through in great detail. And finally, annexation was deemed appro- priate by the City, subject to the qualification and con- dition that the land be dev8lpped, all of the land be an- nexed as well as Blocks 5 and 6 of the North Texas Mill Site, be developed in accordance with a site plan which had been sort of finally approved by the Planning and Zoning Commission and that site plan, in the final stages, of course, showed everything up to this line, which today is the boundary line between the condominium ownership and the existing motel property. And, as I said, the site plan was and the landscaping plan were the condition of annex- ation approval. The condominium declaration was recorded a month or perhaps six weeks later, which incorporated in the condominiumization just the land I've described. The first sale of condominiums, I think occurred in the latter part of October and technically, legally, the first time we had a severance of title on this land was when the first unit was sold out by the Villa of Aspen. That, in effect, put title to all the land in the condominium area - a piece of it, of course, then went out to the first buyer. REMO LAVAGNINO What year was this? ART DAILY This was just last year. REMO LAVAGNINO October of 1972? ART DAILY That is correct, and it's worthy of pointing out at this point that at no time during this procedure that we've gone through was the suggestion made that the ultimate creation of this boundary Line, which was obviously going to occur as soon as we sold a unit, at no time was the suggestion made by the Planning and Zoning Commission or by the Planning Department that this might in some way _"1_ .-.. RECORD OF PROCEEDINGS 100 Leaves ~ORM \1 C. F. MOECKEL B. B. /I L. co. ~onstitute a subdivision of the land. I think the reason why there was no suggestion that this might be subdividing is that the balance of the land was an existing, subdivided piece of land. It was blocked off and a portion of 8th Street, all of which had been regarded for a long time, I think, as sort of a distinct piece of land, with the developed Villa Motel complex. At any rate and in any event, on August 15 of this year, almost a year to the day after the annexation was approved, the Villa received a letter from the City Building Inspec- tor, stating that he was denying the application made by the Villa for a building permit for a new motel on the front of the lot, and one of the grounds for the denial- was that the land would have to go through subdividing first. Our basic contention is that this land was already subdi- vided when all of this took place. This land was subdi- vided by the City in 1957, if not earlier, when the of- ficial plat, official map of the City of Aspen was recorded in the pitkin County records. That map, in effect, for- mally platted all of the lands within the City into lots, blocks, streets, parks where appropriate, and everything else shown on the map. In other words, it was the City itself that divided these lands up into the existing di- visions thnt you see on this map. And the Villa, in ef- fecting its transfer of condominium units and condominium- izing this portion, has in no way interfered with this of- ficial platting of the City. The line that has been cre- ated is down, slightly off the center of the existing alley between Block 11 and Block 5, and Block 11 has been left completely intact. In the statement that I~ve presented to the Board, I've pointed out several provisions in our subdivision regula- tions which pretty clearly imply that perhaps the portion of the City which was officially platted was not intended to be affected by the subsequently-passed subdivision re- gulations. The language I failed to point out, and which, perhaps, is a better indication than any other, appears in Section 20-3 of the Subdivision Regulations entitled "Compliance". Under subsection (a) it states "It shall be unlawful for the owner, or the agent of the owner, of any unplatted or un subdivided land within the City, to sell or agree to sell the same to the..." It goes on, it's basically that you must comply with this clause. I think that language, it states if it's unplatted (?) or if it's platted, or if it's subdivided then this provision, this regulation, doesn't apply._ It's our belief that this language was inserted specifi- cally to create an exception for lands officially platted. It didn't make any sense to the drafters to require sub- dividing again of land already divided. I think also at the time of the adoption of the Subdivision Regulations by the City, is perhaps instructive on this. Statutory authority in the State of Colorado for a City, such as Aspen, to adopt subdivision regulations, has been in ef- fect for many, many years. And yet it wasn't until 1965 that the City or the Planning and Zoning Commission really adopted the first set of subdivision regulations and they, of course, were in the form of and P & Z Resolution, and 1965 was two years after the first annexations began to take place to the City. I believe there were perhaps two an- nexations between '63 and'65. It seems likely that sub- division regulations first became necessary when you started -4- --- RECORD OF PROCEEDINGS 100 Leaves fOAll11 C.f.HOECKELB.B.lll.CO. getting land attached to the City which was not offici- 'ally mapped, not officially platted, not previously sub- divided, into which subdivision regulations would effec- tively apply. Not only is the language of our subdivision code pretty clear in this case, I think it's consistant with the in- terpretation of the Code by the City from 1965 up to the date of this hearing, as not applying to severances in title along officially mapped lines within the City, leaves very little room for different interpretation today. In not one instance, as I pointed out in the statement, at least to my knowledge, has such a transaction been deemed within the meaning of the term subdivision. REHO LAVAGNINO Art, has streets? specific that also been applied to vacated alleys and Are you talking about, or are you talking about blocks intact, or lots intact? I am referring to specific blocks and lots intact. ART DAILY REMO LAVAGNINO Are you saying that this, would this be a unique situation where the vacation of streets and alleys might change that - I mean, is this part of your saying that you've never, you made a statement saying that you'd never seen any records to the effect that blocks or plotted blocks or lots have been subdivided. But have any of those had vacated alleys or streets attached? Have there ever been any situations similar to this? ART DAILY I haven't run across any that were just like this where you did have a vacated portion of a street or an alley attached to a conveyance. I think this is unusual. It's probably the first time something like this, exactly like this, has happened. Frankly, I don't believe that the existance of a vacated street between parcels of property owned by the same owner in common ownership, in any way affects the discussion we're having today about whether or not we have already subdivided land. Since the Villa did own, or prior to that, Lee, the land on both sides of the vacated street, he, of course, well, the title of that land accrued to him automatically and I believe that the division of the alley on either one side or another or the center line of the alley or in the center line, doesn't really change the application of the subdivision law. What we're left with is a piece of land that was already sub- divided by the City and we're left with an addition to that which I just don't think it affects the situation. There are a number of examples of lots and blocks that have been severed which were originally in common ownership and which were later sold off and were not treated by the City as subdividing. I've got a bunch of them - I'll just re- fer to a couple. In 1967, Block 107, Lots B through I were owned by the Walter P. Paepcke Life Insurance Trust and, at that time, he sold off four lots: B through E to one company, and the next four lots to another, and on those two sets of lots, two condominium projects were developed. No subdividing was required at that time. JOHN DUKES , 67? ART DAILY That was in '67 under the '65 regulations. The defini- tion of subdivision at that time was essentially the same -5- fORlol,a C.f.HOECKEL9.a.!!.L.Co. - RECORD OF PROCEEDINGS 100 Leaves REMO LAVAGNINO ART DAILY REMO LAVAGNINO ART DAILY JOHN DUKES AlRT DAILY ALBERT KERN ART DAILY ALBERT KERN "'"""'I"'J!, - It wouldn't affect a determination on this. In 1970 and '71, also the Walter P. Paepcke Life Insurance Trust owned lots A through Q in Block 8, and sold off two lots as he went on down the street to various owners, and certainly, no subdividing was required at that time. Even this year, we've had the question arise again. What zone was that in? two lots for a building Was .it-,an R-6 zone? Was that a zone where they required site or something of that nature? I'm afraid I don't know. were. I wouldn't be surprised if it So that, in other words, he had to sell two lots for a particular building site? That's probably true. I don't think that changes the is- sue, whether he was subdividing, but I see your point. And again, today, or just recently, we had the question of two lots in Block 34, which were proposed to be sold by Alma Beck to C.D.I. Corporation, and, as I pointed out in my memo, that question was put by another attorney, oddly en- ough from my own firm, to the City Attorney, asking whether or not this conveyance would interfere with the subdivision regulations. She responded that it would not. I'd just like to read the last paragraph of her letter: "It has never been the policy of the city, nor is there great legal basis, for asserting that the sale of such lots constitutes subdivision, either within the intent or wording of our sub- division regulations." Now, obviously, the examples I've given are all involved lots, originally held in common ownership, and didn't in- volve blocks. But I think we're just talking about a dif- ference of degree. The subdivision regulations in no place make any distinction between big sales and little sales. It's a question of 'Do you have a division within the defi- nition of the term subdivision? ' Both lots and blocks were land divisions created by the City and I don't think they can be treated differently, in terms of what is and is not a subdivision. At this point, with the permission of the Board, I'd like to call two witnesses. The only two we hope to call, but I think that their testimony can be valuable to the issues we're discussing. All right, sir. I'd like first to call Albie Kern. Please state your name and occupation for the records. Albert Kern, Attorney, Aspen, Colorado. Mr. Kern, how long have you practiced law in the Aspen community? since October, 1959. -6- . ....~ .6_____~ ---._~ ~~_._'--- ._------ ............-----.. RECORD OF PROCEEDINGS 100 Leaves FORM ~ C. F. HOECKEL a. H.I!: L. co. ART DAILY How long did you serve as City Attorney? ALBERT KERN I'm a little rough on dates. I resigned the latter end of 1972 and I was serving for a little over four years, I believe. There was a part of the time, in the earlier stages, when my office was used by the City Administrator for legal work for the City because the City was without a City Attorney. So, I believe sometime, and I was for- mally appointed in the latter part of '68 or the early part of '69, I'm not sure which. Somewhere around there. ART DAILY So you were acting as City Attorney at the time the an- nexation of this parcel, the North Texas Mill Site to the City, took place? ALBERT KERN Oh yes. ART DAILY During that period, and during the construction of the first phase of these town houses, did the question ever arise whether or not an act of subdividing of some kind was occurring in the construction of these units or in the first phase development? ALBERT KERN The question never arose formally. I recall that when this was applied for to be annexed to the city, one of the ques- tions was, of course, the annexation itself, and the other was whether condominiums, as proposed by the developer, would come within the subdivision law at that time. And it was determined by my office, and I might add that I don't recall the Building Inspector nor the Planner ever bring- ing up that question, but it was determined by my office that the subdivision law at that time did not include con- dominiums. But this, I suppose, still leaves open the question whether the creation of this line by the ultimate condominiumizing process, would have in itself, been a subdividing. ART DAILY ALBERT KERN To my recollection, I had considered that. This was, as you know, reviewed by Herb Bartel, the City Planner, and the Building Inspector, and to my recollection, no ques- tions ever came from them with regard to whether this was a subdivision or not. However, I.had briefly considered it and determined that it was not a subdivision under the existing law at that time. ART DAILY The existence of the alley and the fact that the dividing line, while not on exact block lines, but within an alley vacated long prior to that time, did that in any way af- fect your determination? ALBERT KERN Well, this was thought of and it did not, when considered, it did not affect the determination that this still was not a subdivision, even though the division was down an alley - a vacated alley, as I recall. I might add, Remo, you brought up a question to Art, that, with regard to whether there were ever any conveyances which included vaca. ted alleys. And one comes to mind, which is somewhat simi- lar, was the conveyance by either the Aspen Institute or the Aspen Company, of the property that's now owned by the Aspen Historical Society. That property has always been conveyed by a Block as a Block and the Aspen Institute or the Aspen Company, and they transferred title back and forth, they were almost one and the same with regard to this property, conveyed ou two lots to Bert Bidwell, as a matter of fact, from that block and that alley, and I'm -7- , , FOR'" II C.F.HOECKrL9.9.&L.CO. ."'.', '"" ~- RECORD OF PROCEEDINGS 100 Leaves REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN not sure if it had been vacated by the City formally. There were, I might add, there were structures on the alley. There was a structure in back of the Aspen Historical Society, it used to be called the Stallard House. It's built right on the alley and I believe O!'~e half of that alley was conveyed at that time. Whether it was vacateJ or not, I'm not sure. The City made no claim on it, on the alley, and I believe it was vacated. And you're saying that two lots were sold out of that block? Oh, yes, two lots were sold. Then, this was before I became City Attorney and during the time I was City Attorney, the Aspen Historical Society purchased the balance of the block, together with the vacated portions of the alley which were not conveyed In that conveyance. And was this done while you were in office? Well, yes, I'm saying that, while I was in office, the Aspen Historical Society purchased that property and I believe they purchased it from the Walter P. Paepcke Life Insurance Trust, because at that time, apparently the property had then been reconveyed back to Walter P. Paepcke or his Insu- rance Trust and when he died it went to his Insurance Trust and they purchased that. Are you saying, in effect, that that was not considered a subdivision? Oh, it definitely was not considered a subdivision. Was any work done on that, or was it just a transaction that you're talking about? Were there any buildings? I was trying to answer that question you had asked Art be- fore, if there was any... But was there anything subsequent to that that would apply again to this situation, because now we're talking about putting something on this property. Well, I don't recall anything being constructed on the pro- perty, but it was always my understanding of the law, the subdivision law, that if the properties had been platted or there had been a subdivision, in the case of an annexation, if the City annexed property, which had previously been platted or subdivided, then if that property is ever sold, naturally the City wouldn't require a subdivision again of already platted lots. And if there was construction on the property, the zoning law would apply and whatever the zoning, whatever the City of Aspen zoning law was at the time would be the applicable law. I'm just talking as strictly a low layman, and I'm just won- dering whether a permit has to be granted first, he fore the consideration of subdivision comes into play. A permit for building. Is it just the sale of the land or is it just when somebody comes in to apply for a building permit on that port~on of the sold land, that subdivision regulations come into" play? Well, in the subdivision regulations, and I'm speaking now of the subdivision regulation adopted in '69 because I'm not familiar with the subdivision regulation totally, as it exists now, required that in the event a parcel of land -8- FORM \D C. F. HOECKE~ a. a. Ii ~. Co. ".... """'- RECORD OF PROCEEDINGS 100 Leaves REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN REMO LAVAGNINO ALBERT KERN FRED SMITH ALBERT KERN FRED SMITH ALBERT KERN SANDRA STULLER ALBERT KERN ART DAILY ALBERT KERN ART DAILY ALBERT KERN was divided into two or separate parcels for the purpose of t~ansfer or development, and I'm referring only to property which has not been platted or previously subdivided, then subdivision would be required before that could take place. You're saying 'for the purpose of development', you're say- ing. Now, I'm asking you... For the purpose of transferring development. Just transfer of title. You used the word 'development', which implied that they're going to do something with the land. Does that, in fact, come into play, or is it just that the transaction of selling a piece of land, that puts it into a... No, the transaction alone wouldn't, and I think, I'm not sure if I understand your question, but, let me go at it another way. At least my understanding of the law at that time was that if there were platted lots, or if there were subdivided lots and a person wished to sell a portion or some of his platted lots - let's assume he owned ten platted lots and he wished to sell five of them within the City. He was not required to subdivide, no matter what his pur- pose was. It wasn't the intent of the law to look to the intent of the person who is buying or selling. And you're saying that this was done within the framework of a vacated alley? Within the property boundaries of a vacated .... Again, I'm not sure if the alley was vacated or if it ever existed. Oh, wouldn't that be an entirely different situation? It shows on the plat. It shows on the plat. There's dotted lines on the plat showing the alley. This is only my re- collection and I haven't reviewed it in... One quick question. Was any of the alley deeded to Bert Bidwell as part of this transaction? Fred, I don't recall. I don't recall. Then I don't think it's really appropriate. I'd have to review the records. As a matter of fact, they may be in the City records, in the City files that Sandy has. Yes. But, have I answered your question? I'm not sure I have any further questions, Albie. During the term that you spent as City Attorney, were any divisions along officially mapped lines? Are there sales of lots or blocks ever treated as a subdivision? Any severances of title down officially mapped lines? Officially platted, lotted lines? Right. Within the'officially mapped part of the City. To my recollection, none. We always interpretted, and I think this is both the Building Inspector's Office, the -9- FORll!G C.F.HOECKELB.B.&L.Co. "t"""', ", ".. j RECORD OF PROCEEDINGS 100 Leaves ART DAILY SANDRA STULLER ALBERT KERN SANDRA STULLER ALBERT KERN SANDRA STULLER ALBERT KERN SANDRA STULLER ALBERT KERN SANDRA STULLER ALBERT KERN Planning Office, and myself, interpretted the subdivision law to affect only unplatted lots or unsubdivided areas within the City. And I know this area, I checked out when this was submitted, and was all within the original Aspen Town- site and I think it will show on the official plat of the City of Aspen back in the late 1800's, I believe, also, as well as the adoption of the official City map as of - I think you mentioned '57 - I thought it was '59, but I may be wrong. "I have no further questions. Thank you. Can I ask a question? You mention that it has been your practice, as City Attorney, to consider the sale of adjacent lots as not a subdivision, assuming they were under one ow- nership and they were parceled out. Did you ever have a situation comparable to this, when you're talking about ad- jacent blocks, not lots? The only one was the Aspen Historical Society, as I recall. There might have been others, Sandy. There were none that were brought to my attention, but some may have occurred. I'm thinking of this, say, one half block of the Thomas Property. All right. blocks was, said? When you said that the mapping of these original occurred in the late 1800's? Is that what you Well, the official City plat was adopted, or, let me put it this way - the Townsite was patented by the U. S. Government in the late 1800's and I think there was an official City map. Again, you'll find it in your files and the Clerk's files. Okay. Thank you. But, let me explain one thing. It was my understanding and interpretation of the law, both the zoning law and the sub- division law, that even if a person, let's say, owned four lots, and the zoning was six thousand square feet and the lots were each three thousand square feet. If a person wantec to sell off one lot, they could. There was nothing in the Code, at least at that time, and it may have changed, but there was nothing in the Code to prevent a person from sellins off that lot. It was never considered a subdivision, but there was only a zoning violation if they reduced their ex- isting property to less than what is required by the zoning law at the time they reduce the property. And it's also your testimony before that you made a specific determination as City Attorney that the division along a street, the condominiumizing of one half in the remaining of the - the letting of the balance of the property vacant, did not consitute subdivision? Or did you not ever make that determination? Well, my recollection is vague on that, Sandy. As I say, the two main questions were: one, of annexation, and; two, whether a condominium came under the defination of a sub- division at the time. All right. Fine.- And I just recall that I may have thought about it and if I had thought otherwise, I would have required a subdivision or I would have recommended that a subdivision be required. -10- FORM ~~ C. F. HOECK El B. B. !II L. Co. 7"', .... ..... / RECORD OF PROCEEDINGS 100 Leaves SANDRA STULLER ALBERT KERN ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY But you didn't engage in a dialogue with anyone on this sub- ject? No. To my recollection I did not. fore me by the Planning Office, by Building Inspector. Clayton might don't. It was never brought be- the City Planner or the recall otherwise, but I Thank you. I'd like to ask Clay just a couple questions, too. For the record, would you state your name and occupation. Clayton Meyring, City Building Inspector. How long have you served as City Building Inspector? Since March of '69. Clay, since the time you took office, have you ever before denied a building permit on the ground that subdividing had to be first complied with? No. Are you aware of any, can you point us to any provisions of the building code or the subdividing code or maybe any other official code of the City, which state that a building per- mit may be denied if subdividing law has not been complied with by the applicant prior to the making of the application? Well, thinking about that last question, yeah, there have been some in areas where they've - what I'm thinking of is the areas down in Sneaky Lane, for instance, where they re- quired subdivision. I answered the first question wrong. In what posture did those applications come into you? they come to you before subdividing had been done and were then required to deny the permit? Did you No, I don't recall just whether they came in on an application" or somehow they got the word that they had to subdivide be- I fore a building permit could be issued. I don't just whether I it came the plans were designed or not. That I don't recall. I But were permits actually denied? I mean, letters sent out I saying "Your building permit is denied because you haven't I subdivided."? I don't know whether it was that formal or not. This may not be a fair question, but I'd like to turn back to the one I asked second and that is, is there any pro- vision that you're familiar with, that gives the Building Inspector the authority to deny a permit if subdividing hasn't been accomplished? If that's the only problem. Well, there's provisions in the subdivision regulations that say, something like "No building permit will be issued un- less the street giving access has been accepted by the City Council". In that type of thing, I couldn't issue a permit. . Yeah, I agree with that and that definitely, in some areas, that would be a ground for denial as specifically set out in the Code. Suppose, as in this case, though, we've got a situation where all the streets are dedicated - been used for a long time. Is there any other direct authorization -11- ~ - ''\ ,,,,,' FORM II C.F.KOECKELB.B.6L,C(I. RECORD OF PROCEEDINGS 100 Leaves CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY CLAYTON MEYRING ART DAILY SANDRA STULLER CLAYTON MEYRING SANDRA STULLER JOHN DUKES ART DAILY tO,turn down a permit simply because subdividing isn't ac- complished? Well, I've never had that one actually come up, that I can recall. What prompted your denial of this particular application on this ground? Well, since there have been some changes in the subdivision regulations, where they now include condominium type of... That probably has a play into it. It's changed the picture. Well, I guess my question really is, my recollection is that, I really wasn't involved in the initial, in the planning stage of this, and the presentation of plans to your office. I think because everyone felt that it wasn't a problem other than complying with Building Code and Zoning Code. But it's my understanding that, at least pretty close to the time that your letter issued, you felt that the problem areas would be compliance with Building Code - that you had advised the Villa that the permit would issue when you got all your plans in and you've made the right corrections. Is that basically correct? At least, up to a couple of weeks before the letter issued? Well, I had some time before. How long, I don't know. Well, did you, yourself, make the decision then, ultimately, that, "vlhoops - we've got a subdivision here", or was that somehow. . . Well, I think it was the whole City policy, of course, because this is just a little bit different than anything that's ever come up before. I don't have any further questions. Thank you. I have one, Clayton. What is the phrase in the Building Code in reference to your duties? Doesn't it commence you, to the effect that you are to review applications in terms of compatability with the Building Code and other pertinent ordinances? Isn't that how it reads? Yes, similar to that. It says that the Building Inspector will issue a permit if he's satisfied that it's met the Building Code and other pertinent ordinances of the City. All right, that's all. Thank you. Do you have anything further at the present time? I have. Thank you, Clayton. The City, encountering our contention that the subdivision regulations aren't applicable in this situation, the City Attorney has sited several cases from the East Coast. Sev- eral from New Jersey, and one from New Hampshire. The ef- fect of which decisions was a holding that plats previously filed by landowners in those states, under what were called 'Old Map :Acts", were superceded in those states by later en- acted subdivision regulations. It's our contention that these cases simply aren't relevant to the present situation. Under those Old Map Acts, I went back and studied the cases pretty carefully, the owner of -12- ,.... '-' " ~ RECORD OF PROCEEDINGS 100 Leaves FORM II c. F. HOEC~EL 8. 9. a L. co. land was the person who filed the plats. And he was just ~imply entitled to file the plat if he wished to do so in order to divide up some land. There were no subdivision regulations at the time and it appears that the municipal- ity's control, or perhaps the county's control, in some cases, was limited to a quick look at the plat. They really didn't have any defined authority with respect to it, ex- cept that perhaps the City surveyor was supposed to look at it and make sure the dimensions were correct and the Cities were lined up in accordance with the other City streets that had already been layed out and then the plats were rubber stamped and filed by the landowner. In this case, I think in the New Hampshire case, the Court even goes on to express a real concern that some of the paper streets shown on the plat that was at that time before the Court, which had never been formally accepted by the City, the City's fear was that they'd have to pave these streets and install the curbs and gutters and everything else. I think the distinction between these cases and our situation here in Aspen is obvious. Here we're dealing with an of- ficial plat, prepared and filed by the City itself, presum- ably following careful consideration of the street and uti- lity alignments, and the City itself had complete control of this platting process, whereas, in these Eastern cases, in these Eastern states, the city's control was minimal and it was simply a device to permit land owners to divide up their land, this was long before their subdivision acts were enacted. Also, those, t.he New Jersey and New Hampshire sub- division laws, obviously didn't contain language, nor does our own subdivision law, which indicates that previously platted areas were intended to be exempt from subdivision legislation, nor does there, in fact, appear to be any, have been a long period of time between the enactment of subdivision legislations and the first application of the subdivision laws to divisions down platted lines, as we've had in this case, followed by an abrupt change and an at- tempt to apply them. I think if either of these facts had beeen evident in those cases, they certainly would have been discussed in the Court's opinions. I think the facts underlying in these cases in New Hampshire and New Jersey, are simply too disimilar to those that we have here to war- rant giving these cases much weight in our own situation. I'd like to close this part of the argument by reading a very fundamental statement made by perhaps one of our fore- most authorities in this country on zoning and planning, a fellow by the name of Rathkoff, who's written a very excellen treatise on the law. The statement relates to the inter- pretation of zoning laws, but it is equally applicable to the interpretation of subdivision laws, in that both laws are exercises of the police power and both regulate the use of private property. "The zoning ordinance is in deregation of a property owner's common law rights in the use of his pro- perty, and must therefore be strictly construed. Therefore, in interpreting the language of the ordinance to determine the extent of the restriction upon use of the property, the language must be interpretted where doubt exists as to the intention of the legislative body in favor of the property owner, and against any implied extension of the restriction." In the case now before the Board, not only were the subdivi- sion regulations not intended to cover sales of City lots and blocks, but they've never been so applied in the past. I don't think it requires a strict interpretation at all in favor of the land owner, in this case, to conclude that sub- division regulations do not apply in this parceling of land. -13- ,-.. " '-' ; RECORD OF PROCEEDINGS 100 Leaves FOR,..!l C.F.1l0ECKELa.8.&L.CO. Now, are there any questions at this point? I want to just , move on quickly to skim through the balance of the three ar- guments I raised in the memo, but if there are questions, I would be happy to... FRED SMITH Well, Art, I guess I do. I don't know if it's an appropri- ate time, but I'm a little confused. The survey was done in late '71 and, like on 2-21 you got some copies and on 2-22 they went back and surveyed this lot, of '72. Later, you surveyed this line, which is 28.56 feet away from the va- cated street. Now, what was the purpose of that line if the intent was not to subdivide? The purpose of the line, I tried to explain earlier, maybe I just didn't make it very clear. 2-22, yeah, is about a month prior to the time the Villa bought the land, and that's when the surveyor was asked to go out and draw a line for us. And it was a very practical thing. We knew in the fu- ture we'd need two descriptions. We knew that in the future this land would be owned in condominium ownership. And the lender, in this case was Valley Federal, said, "Look, why don't you just divide... ART DAILY I'm interpreting that you're intent at that time was to sub- divide. Maybe that's incorrect. One other question. You keep referring to no case is there an example where sub- division regulations were applied wh~n a parcel was severed along a line created by a plat, and this line appears no- where on any plat. In other words, you have created this line somewhere arbitrarily to suit your own purposes. FRED SMITH That's definitely correct, and I understand your point. It's just that that line was created by U2 because the City had, in effect given us a ?arcel of land that lay between two parcels we already owned. ART DAILY FRED SMITH But you're by a plat. erance. not subdividing it along an existing line created You're subdividing it along a line of your pref- A}'T DAILY That's correct. It's just that we feel that the fact that line is drawn down an alley that we own between two parcels that we own, doesn't affect the application of subdivision legislation to this. There was no, you mentioned that you felt that we intended to subdivide at the time that we drew that line. Quite honestly, there was no thought in anyone's mind until we received Clay Meyring's letter this year in August, that there was any question of subdivision. FRED SMITH Well, in the literal sense of the word, you certainly knew you were going to subdivide it. Now, you're saying you did not think you'd come under subdivision application review by that, but certainly you subdivided along a line of your choice the two properties into two ownerships. It's certainly true that we knew that the property ulti- mately would be owned by condominium owners, but we at no time thought that that would constitute subdividing. Still don't think it constitutes subdividing. Now that, really, never entered our head. The question of two different ow- nerships', yes, we knew tl,at would occur ultimately. ART DAILY The first of the three arguments that I've raised, three ad- ditionally all go to the point that even if this Board should find some justification for calling this a subdivi- sion, that there are a number of arguments which we feel -14- ,....., ....... "l / RECORD OF PROCEEDINGS 100 Leaves FOR"''-' C.F.HOECKElB.B.&L.CO. dictate that the Board should reverse the decision of the Building Inspector and order him to issue a permit any- way. The first of these is an estoppel argument, and this word estoppel is a, sort of a mystical legal term. I'd like to try to explain just why it's used. It is basically a fair- play doctrine and it's brought into play, and applied in situations where a person, in this case a city, has buy it's words or it's conduct or by silence in a situation where perhaps it should have spoken up, has represented to another party, in this case my client, that the actions being taken by that party are okay. It's approved it's actions. And where that party, in good faith reliance on these actions or on these representations, has gone further and taken actions which would be to his serious detriment in the e- vent the representing party, the City, were to change his mind. I think that in this case, the actions of the City, especially during the annexation process and the reliance of the City on these, I mean, of the Villa, on these actions preclude the City from now crying "You subdivided your land" As I indicated, the annexation involved a complete site plan review, almost exactly the kind of review that we would have gone through had we subdivided. The Colorado Municipal An- nexation Act provides that at any time during annexation proceedings, if the municipality or the land owner deems it appropriate, subdivision procedures can be instituted, and can be processed simultaneously with annexation. The City, therefore, could have required subdividing, could have made it mandatory that we subdivide at that time, be- fore we could do anything further. And had they done that, had they made that mandatory, of course, we would have com- plied. And it's worth looking at where the situation would be today. We wouldn't before this Board. We would have complied. We would have made one lot, the portion that is now condominiumized, lot two, let's say, would have been the existing motel, and the land would be subdivided today. We would simply have gone in for a building permit on a sub- divided lot and there wouldn't be any difficulty. Instead, the City didn't require subdividing at that time and the Villa has incurred really substantial expenses since the time of the annexation, in good faith reliance on the City's stance that no subdividing was required. Now, I've men- tioned some of the costs that were incurred in the state- ment. Obviously, a great deal of planning went on that pro- bably wouldn't have been done until we'd subdivided. I have, just as an example, brought some copies of an invoice re- cently received by the Villa from its architects on this pro- ject, and the billing runs from the fifteenth of September ! of last year, which was perhaps a month after annexation was completed, until September thirty of this year, shortly af- ter plans were first submitted, and turned down, and the bill is approximately twenty-seven thousand dollars. And I think it's obvious that we never would have gone to the trouble to prepare full building plans and specifications, and these even involve, I think this bill even involves some modifications, had there been any question about whether or not subdividing had to be complied with. That's usually your first step. The essence of this argument is that, it simply isn't equitable to, for the City now, all of a sudden to require that this land be subdivided and that's sort of the essence of the estoppel argument. The second of the last three legal arguments that I've pre- sented is the equal protection argument. The United States -15- ,... .... ~ ,j RECORD OF PROCEEDINGS 100 Leaves fOR'" III C. F. KOEC~El 8. B. A l. co. ~nd the Colorado Constitutions prohibit the selective or arbitrary descriminatory application of the laws. It's a fundamental precept of our system that the laws have got to be evenly administered, and, as we've pointed out, this is the first time that a division along an existing platted line or, of course we do have a little different situation, since it goes down a vacated alley, but I don't think it really affects the definition of subdivision. It's the first time that this has ever been called a subdivision, and I think that's the very type of selective application of the law that perhaps the equal protection clauses were de- signed to protect against. Perhaps the most practical of these last arguments that we've raised, is the last one, and that is that after studying the Building Code and the Subdividing Code, and the Building Inspector's responsibilities as they're set out in the Muni- cipal Code, pertinent case law in the area and also the o- pinions of other legal authorities in this field, it's our conclusion that even if the subdivision regulations should be held to apply to this, that the Building Inspector simp- ly has no discretion to deny a permit in this case soley on the ground that subdivision regulations have not been com- plied with. In defining responsibilities of the Building Inspector in the City,the Municipal Code lists a number of codes which he is to enforce. The subdivision code is not one of those. The Uniform Building Code, in effect, says that if the zoning and building code requirements are met, the permit shall be issued. It's a mandate. And nowhere in the Subdividing Code does it provide for building permit denial if the subdivision laws are not complied with. The Subdivision Laws contain two other means by which the City enforces its Code. The first is that it penalizes the seller for every lot he sells without complying, he can be fined up to $300 for each lot, and also be thrown in jail. And it also permits the City to enjoin any illegal sale. The Court can get an injunction against it and put everything back the way it was. It's our position that no matter how desirable such an additional tool might be, it would be a very effective tool to be able to deny a permit on a lot that was previously subdivided or sold out illegally, our laws don't provide for that, and we can't just administra- tively expand our laws and increase penalties. I hope each of you has had a chance to read that City of Tacoma case that I attached, because it really is almost directly in point with the situation we've got here. That case did involve a buyer who had gone in for. a building per- mit, and the Building Inspector had turned him down, and said, "Hey look, your seller didn't subdivide", and went on to several other grounds.A~d, there is a factual difference in that it was a buyer that was turned down, not the origi- nal owner of the land, which is our case. And, as the City Attorney points out, the Court, in beginning it's decision, does hold that, as one of it's grounds for stating that the Building Inspector erred, that the subdivision law is not intended to visit the sins of the seller on the buyer. That made good sense, but the City Attorney didn't go on to com- ment on the second holding in the case, and the second hold- ing is s~fficient in and of itself. It's an independent ground and it would have applied without any question. It would have applied had the a;.:.plicant in the case been a sub- sequent buyer or had it been the original owner. Because the second ground, I might even quote from the decision, that's the easiest way to get it out, and that is that, "The Building Department of the City of Tacoma has no dis- -16- ,~'" '-" RECORD OF PROCEEDINGS 100 Leaves FllllM'~ c. F. "'O[C~El a. a. " l. co. cretion to refuse a permit, save to ascertain if the pro- ~osed structure complies with the building and zoning regu- lations. Once that is done and the appropriate fee tendered, the Building Department must issue the building permit." Now the City of Tacoma had exactly the same subdivision code remedies, as I've just mentioned, as we have, and exactly the same version of the Uniform Building Code, as does Aspen. The Court went over the situation in really great detail and concluded that there simply was no authority in the Building Inspector to deny a permit on this ground. In countering this argument, the City A~torney sites a Cali- fornia case, Pratt v. Adams, where a building permit was de- nied to applicants who had made a really flagrant attempt to avoid the subdivision regulations. The most flagrant I've ever heard of. I don't really see why this case was men- tioned. The Villa has really, at no time, made any effort to evade subdivision law or any other law, and there was never any attempt to circumvent any regulations, and I think that's what that case is all about, that the Court simply said, "We don't care whether the Building Inspector has the power or not. We're not even going to consider whether er- roneously denied the permit because we won't let our equit- able powers interfere with such a flagrant, out-and-out fraud on the community. The guy who has come to us and asked us for relief doesn't have clean hands and this Court will not rule, as did the Court in Tacoma, that the Building Inspec- tor had erred." In concluding this part of the argument, I'd like to quote once again from this fellow Rathkoff on zoning and planning. "The issuance of building permits is an administrative act. The person charged with the duty of issuing permits must follow litterally the provisions of the Code. A permit for a legal use may not be refused for reasons extraneous to the zoning ordinance. Permits may not be refused for matters not within the scope of his discretion." Well, it's been a pretty long presentation, and I appreciate your giving us the time to ... END OF SIDE 1 OF TAPE ART DAILY The City was involved all the way with this thing. The City had it's chance to tell us, "Hey, you're subdividing. Get it done." It was intimately involved, it determined at that time that subdividing wasn't required, and I feel that that determination holds equally as good today, the same laws are applicable. It might well be an appropriate goal of the City to now try tu require that lands that were officially map, admittedly a long time ago, perhaps it would be a good idea to apply subdivision regulations, full ~ubdivision controls, to those lands. Perhaps it would be a good idea to give to the City Bt..ilding Inspector the power to deny permits in the event subdivision laws are not complied with. But there is a right way and a wrong way to go about achieving these goals, and I really think that the City, in this particular case, has adopted an improper position. The way to do it is for the City Council, the legislature, to adopt new laws which mqke it clear that these applications are intended. The law as it reads, as it read in 1972, the '69 subdivision law, made it quite clear that it was not intended to cover this type of situation. Thank you very much for your time. 'JOHN DUKES Thank you. -17- r". \...... ~- RECORD OF PROCEEDINGS 100 Leaves rORM'~ C. r. HOrCKEL B. B. & L. Co. pandy, you have something to bring up? JOHN DUKES SANDRA STULLER Yes, I just want to respond to the comments made tonight. My response to the legal arguments are incorporated in the memorandum. I just want to rebut some of the comments that were made tonight. First of all, Art said that earlier platting of the blocks in the late 1800's constituted a subdivision, and yet it's his contention that no subdivision occurs until or unless there's a transfer of land, and he argues that the first severance therefore occurred in October of '72. I think we have to have consistency in the definition of subdivision if we're to get anywhere. He argues that then, that Section 20-3 included the phrase "platted or subdivided". If that subdivision did occur in October of '72, we had a new subdivision regulation that did not incorporate those two words, those alternative words. He argues that subdivision regulations have only recently been adopted and applied, etc. and that historically, no division of old lots and blocks as designated in City maps were covered under subdivision regulations within the City of Aspen. May I submit that there are no towns in which subdivision regulations are not new and innovative. This is not an old concept at all. He argues that there's been a history of parceling out lots that are in approved and City mapped blocks, and you will note from your material, that I've continued in that policy. There's been no deviation from that policy at all. Again, because the arguments are that subdivsion is concerned with impact, facilities, etc., and when you're dealing with cer- tain lots in an approved blocks, you don't have to worry about facilities or impact because we're talking about mini- scule problems. He says it's a matter of degree. Of course it's a matter of degree. Subdivision regulations are di- rected to questions of degree, exactly. He argues that the vacation of alleys and streets does not affect the situation at all. I suggest that it does. One of the main functions of subdivision regulations are to pro- vide access, to make sure it's there, before the land is parceled out. Albie Kern came on and he said, first, that's it's never beer the policy of the City to consider situations such as this as subdivisions, and then he goes on to say he's never en- countered a situation like this or he's never had to deal with one. He goes on to say, "Well, I did think about it, ar I disagreed." Well, he disagreed. He was City Attorney ther and I'm City Attorney now, and I think the law requires that subdivision be applied in this situation. He asked Clayton, for example, I'm sorry, we get back to Art, and it was Art's obvious attempt to illicit from Clayton a contention that he has never denied a permit for subdivision. And yet, one of his latter comments was that subdivision is one of the first things that's considered and taken care of before you develope land. Well, I submit that every time a subdivision's been required it's been taken care of signi- ficantly before permit application for a building has bcen submitted. Art concludes with various estoppel arguments. First of all, -18- I"'" '-- "'~---- ,j - RECORD OF PROCEEDINGS 100 Leaves ~ORM II C. F. HOE~KEL B. B. !l: L. co. i question whether a City can ever be estopped by the mis- takes of it's people, whether it be an attorney or building inspector or a planner. But even if the estoppel arguments do apply here, I think that they would apply against our trying to do something about the structures and the develop- ments that have occurred. We are not attacking the condo- minium units on the west end of that project. That's where the estoppel would occur. That's where the expenditures have been made. That's where the committments have been made. If they've made committments on architectural design, I'm sorry, we couldn't anticipate those, and I suggest that cities are never bound by the pre-plan or pre-application ex- penditures of an applicant. He argues, number two, that the equal protection clause is being violated here, and yet, he can not establish one case where a parallel situation has arisen. All right, how can we deny him equal protection when the situation has never arisen before, when other people are not being treated dif- ferently because the situation has never appeared, or at least he cannot historically document it. The last argument is essentially one that we don't have the right to deny a permit. He says we have to go under the criminal sanctions and arrest these his client. I suggest if we have an alternative approach, we're going to use it and we're going to use it with police powers that are least expensive and exhaustive to us, and that's our election. He makes reference to the difference between the Pratt case and the Tacoma case. The Pratt case, I think, is directly in point. His testimony was that his client was engaged in that division of the land before, that they had agreed that they were going to accept the parcel of land in two separate des- criptions. And now he is a permit applicant on the balance of the land. We're not talking about the purchasers three or four years down the line, who were totally innocent of the transaction. We're talking about someone who engaged in a division of the property. It happened some time, be- cause we've got a tract of land that's now under separate ownership, and we can go sit and theorize as to when it hap- pened, but at least we know that the Villas of Aspen, Inc. were engaged in the whole process. Now, you can try to de- fine when it happened and why, but we don't have to worry about innocence here. I'm not talking about malice and at- tempt to deceive, we're talking about whether or not some- one should take the responsibility for division of land. There's no third party involved. It's the Villas of Aspen, Inc. or it's nobody, and I don't think that the difference between the Tacoma and the Pratt case is something to be ignored, at' all. I suggest that we do, in fact, have the right to deny a per- mit for failure to comply with the subdivision regulations. Again, reference is made to the quotation that Clayton gave to the effect that when a Building Inspector reviews and processes an application, he must look not only to the Build~ ing Code, but all other applicable City ordinances. With that I make reference again to the memorandum, and I'll en- tertain all questions you might have. JOHN DUKES That's under his job description, you might say? SANDRA STULLER It's in the Code and the Code has been adopted by the City, yes. FRED SMITH Who was the City Attorney at the time of the annexation? -19- FORM \0 C. F. HOE~K~l e. e. II l. CO. /,"", "-' " <' RECORD OF PROCEEDINGS 100 Leaves SANDRA STULLER ART DAILY FRED SMITH ART DAILY JOHN DUKES SANDRA STULLER JOHN DUKES SANDRA STULLER REMO LAVAGNINO JOHN DUKES SANDRA STULLER REMO LAVAGNINO SANDRA STULLER REMO LAVAGNINO ART DAILY REMO LAVAGNINO ART DAILY FRED SMITH REMO LAVAGNINO Albie Kern was just finishing up his term and Art was a- bout to take the position, I believe, in November of last year? The annexation was in August, and I took office in, perhaps, mid-November. Of '72? That is correct. Can you explain whether subdivision wasn't requested on the first instance? Why Albie Kern did not consider it relevent? No. Art said when they made the condominiums and so forth, and made this division and so forth, and there was no, there didn't seem to be any reason for subdivision, and yet, now, the Building Inspector suggests that it has to be subdivided. I think it's a function of how people perceive the law. It's a function of planners perceive what's happening, it's a fun- tion of a Building Inspector looking at what's happening. I submit that if it was not thought of or contested at that point, that's something that I'm not responsible for. That's my question along the same line. Is it the duty or the responsibility of the City to inform the applicant that he should subdivide? When Clayton reviews plans and he can see the situation, is it his responsibility to tell the ap- plicant that, under what he has presented to him, that the applicant should subdivide? In other words, should he tell him then or should he wait, as evidently something came up in the interim here, wait un- til the party comes in to get a building permit and then say "You must subdivide now"? You mean, would Clayton, on his own initiative, have to go out and tell people they have to subdivide? No. If somebody submits something to him, should he, is it his duty to say that this person cannot do what he intends to do, that he should apply for subdivision? Are we talking about whether or not the City should have asked for it last year, or that he can demand it now? Didn't this, in fact, come up, I don't know the dates, but months earlier, before the applicant was told that he would have to subdivide? Wasn't Clayton presented with a set of, I assume, intentions, at least, of what was going to happen to those properties? The first building permit application, the first complete set of plans, was submitted in June, I think. From June to when, Art, what are we talking about, August? August l~, or something, whenever the date of .... These are the conference center plans. When were the first plans for the Villa Condominiums submitted? That's what I'm talking about. -20-- FORll!1 C. F. tlOE~KEl B. B. lie l. co. .. ........___ __d___ RECORD OF PROCEEDINGS 100 Leaves ART DAILY REMO LAVAGNINO SANDRA STULLER JOHN DUKES SANDRA STULLER FRED SMITH ART DAILY SANDRA STULLER REMO LAVAGNINO SANDRA STULLER FRED SMITH SANDRA STULLER ART DAILY REMO LAVAGNINO ART DAILY REMO LAVAGNINO Well, of course, that was all part of the annexation pro- cess, and when they were submitted to his office I'm real- ly not sure, but I would expect during August of 1972 or perhaps July of that year. What I'm saying is there sufficient enough time for Clayton, the Building Inspector, to have suggested to them that what they were attempting to do shouldn't be under... Is it his responsibility to tell them that, is what I'm saying, or his duty? Well, I think the testimony from Albie Kern was that that issue had never come up at that time, that it had never been resolved or even discussed. Well, then, why did it come up this time after this time lag? Because it was my consideration that subdivision had occurred At the time building permit was requested for the Villa Con- dominiums, was Art the City Attorney? Oh, no. That was in June of '72, and I didn't take office until November of that year. And by the way, when they were submitted this year, for the conference center, I had left office in May. Theoretically, no subdivision had occurred un~il October of '73, which was a substantial amount of time after the per- mit was issued. You mean, the Building Department could not ascertain what was going to happen to that land until that point of the building permit application? He couldn't determine at the point when the condominiums were going up or whatever in- formation was presented, that he faced subdivision? No. At that time, Remo, condominiumizing was not a sub- division. And it did not indicate that this was going to be severed. Right. It was all under one ownership and when they conveyed that deed in October of '73, that's when a subdivision oc- curred, and the permit, of course, had been issued and the building built. Might I comment on that, too? I think it was clear at the time we were even going through the site planning process, during July and August of '72, during the annexation, we were going to condominiumize. The site plan map showed that line. It was clear, even then, to everyone involved right up through the City Council that, ultimately, when the first sale occurred, there would be a condominiumizing, there would be a severance of title. But that wasn't considered a subdivision, at that time. Well, condominiumizing was not part of our law at that time. The creation of air space units didn't constitute dividing up land within the community. But it was clear, also that line would be created. Well, was the intent of what was going to happen on the other side of the line established at that point? -21- fORM 'I C. F. 1l0E~KfL S. S. It l. CO. " , RECORD OF PROCEEDINGS 100 Leaves No, it wasn't. ART DAILY REMO LAVAGNINO ART DAILY REMO LAVAGNINO SANDRA STULLER REMO LAVAGNINO ART DAILY REMO LAVAGNINO RON WINDEMULLER GILBERT COLESTOCK ART DAILY GILBERT COLESTOCK RON WINDEMULLER GILBERT COLESTOCK RON WINDEMULLER REMO LAVAGNINO CHARLES PATERSON RON WINDEMULLER GILBERT COLESTOCK ART DAILY RON I-HNDEMULLER Well, if it wasn't, how could - the intent could have been that it could have been all condominiumized. Of course our site plan only covered up to the line. I know, well that's what I'm saying, it could have been - there's no indication that it couldn't have been all condo- miniumized under one... Declaration? Yes. Well, with the existing motel, of course, it was clear that that was going to remain a separate entity. Well, not necessarily, since it's coming down now anyway, or your intention is that it is, isn't it? Or wasn't it dis- cussed that it was going to come down at that time? The City Council did ask that question and we did answer af- firmatively that a new project, a new motel, would be pro- bably built on the existing site of the existing motel. And it was discussed whether that would be added to the condo- minium project or not. It was said that we would not do that at that time. We were going to build forty-eight units maxi- mum on the condominiums, and that's it. No more. But we had not formalized September of that year that we started the actual planning of the motel. So while the con- dominiums were being finished up, the motel was started. Art, could you tell us, please, about how many new accomo- dations would be in this new complex, or new motel? Ac- commodations for how many total people maximum? Could I refer that to Ron Windemuller? Yes. We currently have forty units and we would have ninety-two, which is within the zoning ordinance. Which would have approximately how many people in those ninety-two units? Two per room, I mean, just like, it's hard to say average to say what it is, depending on the time of the year, but two to three. Well, whatever it is, it's proportion to what they have now. It's an addition of fifty-two units, is what you're saying, to what you have now. Which is the amount we can build under the existing zones. Art, will this be any kind of a franchise operation, or in- dependently owned, or would Ron give up ownership and even- tually sell this portion out, too, or do you know his plans on this? I'd like to refer that, too. I'm not that familiar with it. It's currently owned by myself, and as far as franchising, -22- FOIlMI! C.F.HOECKELB.B.&L.Co. {"" \./ /"-...... RECORD OF PROCEEDINGS 100 Leaves CHARLES PATERSON GILBERT COLESTOCK CHARLES PATERSON GILBERT COLESTOCK RON WINDEMULLER GILBERT COLESTOCK REMO LAVAGNINO ART DAILY JOHN DUKES we have not made any committments to anybody in franchis- ing. There have been numerous people asking about it and we're looking, weighing the advantages against the dis- advantages, and so far there's not really advantages. I think you're mainly concerned with a different owner on that property. Isn't that what you're really concerned with? Well, the impact on the area, for one thing, Charlie. Would this be relevant to the condominiums, is that you're driving at? Yes. Yes. One part of the question, yeah. The condominium owners do not own any part of the.... No, I realize that. All the parcels were under single ownership when the land was condominiumized? That's correct. Do we have any further statements? Clayton, would you like to say anything? CLAYTON MEYRING No. JOHN DUKES CLAYTON MEYRING REMO LAVAGNINO GILBERT COLESTOCK In defense, or ofense? You think your position has been covered? I believe it has. As I read through your brief (Art's), and say, "Wow", every- thing sounds so plausible, and then you get another brief and everything sounds so plausible. It's difficult for us to determine. It's difficult for me to be equitable. But there are some questions that I can only, I don't know, try to logically come to some to some conclusion with or come to grips with, and one of them is that I feel that the single ownership of all parcels, I've written some notes here,in vacated alleys and streets, that I believe does modify the land divisions, and though the boundary line between the new condominiums and the motel property leaves both blocks com- pletely intact, as you mentioned in your brief, I think that the distinction between the two properties is arbitrary and in this case, just coincidental. That line could have been anyplace. It could have been between a block. Don't you, in effect, negate the reasons for the platted definitions of lots, by building, for instance, onto a vacated street, which happens to be 8th Street. Don't the divisions that were plotted by the City all of a sudden become not too im- portant and not... But you seem to negate that fact when you look at the whole property now. The streets mean nothing. The division of lots mean nothing. And I think you have to review the land as a single parcel of land and what's going to happen to it and what services are going to be... how services are going to be rendered to that property, since you vacated alleys. And I think I would look at it entirely different and in a new perspective than any other situation that I've seen. That's an excellent point. -23- ~OIl"!<I C.~. HOEC~El B. B. lit l. co. I' ' '\."..,..' .,....... RECORD OF PROCEEDINGS 100 Leaves JOHN DUKES GILBERT COLESTOCK JOHN DUKES CHARLES PATERSON REMO LAVAGNINO All the adjacent property owners, I presume, were notified of this. Are there any other comments from the floor re- garding this case? Here's a few letters. We will read these into the minutes. This is a letter dated November 24th, 1973, to the City of Aspen Board of Adjustment: "Gentlemen, we are strongly opposed to the Villa being gran- ted a variance which would exempt them from any building or zoning regulations, either before or after the City has a chance to study their plans. In other words, we are we are against their present building plans for a motel under any circumstances. Our reasons are as follows: (1) There is already too much traffic congestion in this area because it is at the entrance to the town and there is very heavy traffic on the highway, as well as to the Villa Condominiums. Access to and from the highway at 7th and Main and at 7th and West Bleeker is already extremely hazardous during the summer and winter tourist seasons. It is almost impossible to enter and leave the highway at 7th and West Bleeker most of the time. (2) There would not be enough parking space for all the cars involved in such a large motel operation. It is already crowded on 8th street between West Bleeker and Main, with the cars for the Villa condominiums, many of which park in the street all of the time; (3) The motel plan is very large, and being three stories high, would be out of proportion to the rest of the buildings out here, and this would spoil the appearance of the entrance to the town; (4) The condominiums the Villa has built are drab, ugly, have inadequate parking, and the owners and tenants have large number of dogs which are allowed to roam this area without restriction. We consider the condominiums very poorly managed, and we do not see why the Villa should be allowed to make any more of an ugly mess of this end of town. Very truly yours" - Miss Anna Borgeson and Joe Bor- geson, 831 West Bleeker Street, Aspen. Thank you. My letter is to Board of Adjustment, by Ellie Bealmer, 815 West Main. "I am opposed to exemption of Subdivision Regulations for the Villa. It would be in violation of present zoning and increase density in the area." TO the Board of Adjustment. "I strongly oppose any variance of subdivision regulations for the Villa of Aspen concerning their proposed new pro- ject, as well as the scale of the project itself. As the owner of a single family dwelling one block from the pro- posed project, I feel that the neighborhood is still pri- marily residential, and would be overwhelmed by a three- story ninety-unit new structure for tourist accomodations. I also feel that this location is particularaly sensitive due to the fact that it is the first thing that would meet one entering Aspen from the west on Highway 82. If Aspen wishes to retain anything of its character as a small- scale mountain town, surely this is not the face it wishes to present to the arriving visitor. I hope that the Board of Adjustment will deny any request for a variance, and -24- _._._.__.~-~- - - --------. -_.--~_.._,._._. FOR~!~ C. r. tlOECKEL B. B. & L. CO. /"", ,...'.... ,,, RECORD OF PROCEEDINGS 1 00 Leaves JOHN DUKES II: REMO LAVAGNINO FRED SMITH ART DAILY CASEY ARMSTRONG ART DAILY CASEY ARMSTRONG CHARLES PATERSON CASEY ARMSTRONG CHARLES PATERSON FRED SMITH ART DAILY JOHN DUKES FRED SMITH JOHN DUKES FRED SMITH CHARJoES PATERSON j that any new construction to replace the current Villa of Aspen will retain the same moderate scale. Sincerely, Bruce N. Berger" All right, here's one, to the Board of Adjustment. "Someone has to put a stop to this sometimes. The Rocky Mountain Natural Gas just said no more new customers. NO MORE. You keep on giving building permits and we all will die. So therefore no more buildings. And the way it is now the Villas looks great, but with more, down towards the river, it will be bad. So I am against it. that is if I ahve anything to say about this. Sincerely, Bert Dahlander." Now, there were some returns for the records on notifica- tions. Pat Ward, Nancy Lee Hines, Earl & Eleanor Wickham, Christiansons, Craig Teter, John Herbert, and Richard & Grace Doyle. I don't understand that. Are are records so bad that These are addressed to General Delivery. Could I ask why they were addressed to General Delivery? We obtained a list of names and addresses first from one of the title companies in town, based on public records, and then it was my understanding that we were going to get as many box numbers as we could for the rest of them. Yes. I think you added something like five or possibly six. You had the lot and block numbers of the adjacent property owners and five or six had been penciled in, but some of the addresses were very vague. Some were General Delivery? No, just Pitkin County, so I addressed them General Delivery. Is there a way you could get a box number on those? I went through the utility billings and got as many out of that as I could, and this is what's left. This one, for instance, Herbert.... patricia Ann Ward. Well, it's not the Clerk's duty to pro- vide the addresses, it's the applicant's, and he's to get those from the County Assessor's records, and they don't have these as General Delivery, do they? Well, when we submitted the list, there were some General Deliveries on it, and Casey and I discussed whether I should have my secretary run down the rest, and Casey said she should find them in the records the City had. Who else do you have? Well, I submit that none of these were properly notified. These are all General Delivery, right? Well there's one there to pitkin County. Did you know all these were returned? -25- . 'ORMI! C.F.HOECKELB. 8. Il L. CO. 1"''' \0./ ...,., RECORD OF PROCEEDINGS 100 Leaves No. I had no idea. ART DAILY CHARLES PATERSON ART DAILY CHARLES PATERSON CASEY ARMSTRONG JOHN DUKES CHARLES PATERSON JOHN DUKES CHARLES PATERSON JOHN DUKES CHARLES PATERSON FRED SMITH CHARLES PATERSON JOHN DUKES CASEY ARMSTRONG JOHN DUKES FRED SMITH JOHN DUKES Did the City not notify you? No. How long have these been in the file? Those? I'm not sure which ones you're referring to. There were three notices sent out. November 23rd.... I mean it's been a long t:lme. They've been just sitting down there in the office. No. November 23rd. That's only five days. Here's one, November the 7th. November the 7th? When did it get returned? November the 23rd. It took that long for them to get returned? I don't see how we can operate that way. They hold General Delivery for twelve days or something. There's no way we can operate that way. November the 18th, November the l3th,November the 18th... John, you have the list of adjacent property owners and their addresses as submitted to me. Right. I have them right here. I was just going through there and seeing. The big share of them do, I mean, what we've got here are the only ones that I can see that do not have definite boxes. This does include all the Villa condominium owners, doesn't it? Is there anything further from the Board? I mean from the floor, excuse me. If not, we'll go under Executive Session and see if we can come up with an answer to this. ADJOURNED TO EXECUTIVE SESSION l'" "-' I5iK< /', '",", S. S. KRESGE COMPANY INTERNATIONAL HEADQUARTERS 3100 WEST BIG BEAVER TROY, MICHIGAN 48084 November 9, 1973 City of Aspen Board of Adjustment Dear Mr. Chairman, In regards to the subject of building a new Inn where the Villa of Aspen now stands I would like to state my views as I am unable to personally appear at hearings, held in Aspen, on the subject matter in question. I own a townhouse on property adjacent to this site and feel that a new structure would be very advantageous to the City, esthetically speaking, and would better serve the carummity as a whole. Change is sanething many people fear but without change, man would still be living in caves and there would be no such thing as Aspen or our great sport of skiing. Times change, people change and growth is inevitable. lVhen a person or town refuses to be congnizant of this factor, it dies; and we see this reflection in ghost towns. I am definitely affirmative on the matter and hope you will give it your serious cOll8ideration. Best Regards, B. DiBartolOll\eo, Art Director K mart . Kresge . Jupiter . Holly. Inc. . Schiller, Inc. . K mart Enterprises, Inc. November 24, 1973 The City of Aspen Board of Adjustment Aspen, Colorado 81611 Gentlemen: We are strongly opposed to the Villa being granted a variance which would exempt them from any building or zoning regulations either before or after the City has a chance to study their plans. In other words, we are against their present building plans for a motel under any circumstances. Our reasons ~re as follows: 1. There is already too much traffic congestion in this area because it is at the entrance to the tOlm and there is very heavy traffic on the highway as 'dell as to the Villa Condominiums. Access to and from the highway at 7th and Main, and at 7th and West Bleeker is already extremely hazardous during the summer and winter tourist seasons. It is almost impossible to enter and leave the highway at 7th and ,,Jest Bleeker most of the time. 2. There would not be enough parking space for all the cars involved in such a large motel operation. It is already crowded on 8th Str~et between West Bleeker and Main "ith the cars for the Villa Condominiums, many of which park in the street all the time. 3. The motel planned is very large and being three stories high would be out of proportion to the rest of the buildings out here, and this would spoil the appearance of the entrance to the town. 4. The condominiums the Villa has built are drab, ugly, have inadequate parking, and the owners and tenants have large numbers of dogs which are allowed to roam this area without restriction. Ne consider the condominiums very poorly managed and we do not see why the Villa should be allowed to make any more of an ugly mess of this end of town. Very truly yours, (j~p/)/~ k? ~"f'~<)-t)7-L (Miss) Anna Borgeson " ~i l"-t r)~1~vn. Borgeson v Joe bb 831 West Bleeker Street Aspen, Colorado 81611 Eleonor B. Beolmeor Box 631 8' /S t~/:'1~ Aspen, Colorado 81611-- - . </24-,)' 6'/ FJ '7.:? /7.-7 /Jr.J;7',d 7.dA'/<-,vVm_2.,;/ &7? ?z~~~ <~ cY'<<-,- ~~ y., Y:""~%l b>~"'~ ~~~0",0 /.N<- p<<:; J/U'/~' cPY "':~~ d'e~~< 4~',4~,f r..o~ J7 ~A A>C'-~ ",6,~'7 ~ j)-~ '?rA'-€'~. ~/tr'Jj ~ '~~~~ (' /"7""7 ffW~ e /5 v-r:?n":"- ') John Dukea, Ohairman Board of Adjuatmllllt Aspen, Oolorado 81611 November 9, 197; To the Board of Adjustment: I strongly oppose sxry variance of subdivieion regulation. for the Villa of Aspen concerning their proposed new plloject, as well BJl tone aGale of the project itself'. As the owner of a single f8lllily dwelling one block from the proposed project, I feel that the neighborhood is still pr~ily residential, aPd would be overwhelmed by a thre_torsy ninet<v-unit new stucture for tourifl't acoomodations. I alae; feel that this location is particularly seneiti'te due to the faat. that it is the first thing that would meet one entering Aspen from the west on Highwey 82. If Aspen wishes to retain anything of its character as a smell-scale mountain town, surely this is not the face it wishes to present to the arriving visitor. I hope that the Board of Adjustment will dS'IV sxry request for a variance, and that sxry new construction to replaoe the ourrent Villa of Aspllll will retain the same moderate scale. Sincerely, /' ~, /0/- ~. 7 Bruce N. Berger 961 Wefl't Main Aspllll ~ \ , BOARD 8}tID~ts+ARA~. Aspen Nov Jrd.197J. Dear BOARD OF ADJUSTMENT. Someone has to put a stop to tbis sometimes. The Rocky Mountain Natura 1 Gas just said no more new cQstamers. NO MORE. You keep on giving building permits and we all will die. So therefore no more buildings. ~he Villas looks great. but with it will be bad. And tbe way it is more down to_ards I now the river} So I am aginst it. That is if I have anything to say about this. Sincerely Bert Dablander Villa Townhouse owner Unit 2J and very satisfied a* it is now. ,...., ,'"' Letter on t~e ot~er side please turn over .. it wont take long. NOTICE OF PUBLIC HEARING Case No. 73 29 BEFORE THE CITY OF ASPEN BOARD OF ADJUSTHENT TO ALL PROPERTY OVINERS P.FFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED B~LOW: Pursuant to the Offi~ial Code of Aspen of June 25, 1962, as amend- ed, a pJbli.c hearing ~dll be held in the Council Room, City Hall, Aspen, Colorado, (or at such ot~er 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 Resolution, Title XI, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you canilot appear personally at such meeting, then 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 con- sideration 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 follm'ls: Date and Time of Meeting: Date: November 8, 1973 Time: 3:00 p.m. ,Name and Address of J,pplicant for Variance: Namc:Th V'll f dd e 1 a 0 Aspen, Inc. A ress:p.o. Box 679 _ Aspen, Colorado 81611 J.ocation or description of ..rToperty: Location: Description: Block 11, the vacated alley within said Block 11, and a part of vacated Eighth Street, City arid Townsite of Aspen ~iCl~1.Ce requested: Request for exemption from the subdivision regulations. Briefs have been submitted by Art Daily and the City Attorney Duration of Variance: (Please cross out one) :r~Jlt;~e{"'~ Permanent THE CITY OF l,Sl'EN BOARD Of ADJUSTMENT / -c;( /.! '~c;{)/,,;(.'f 1/'--~..'~-~;~~~~:)i.'~~::>T' 1/ / I t:-:.' , BY \ CITy.."'......,; aspen.c " ':~~f~.'f'.~;i:," ;",'" "/' .cT~~;"~:'~ /!'it G S ; ,\. n ~OV2G'73 :~-,:f 'l:l '" iL~5{~-f~ ~ .0 f; : ~ C'"'\ ~" /r,r>.. C T '." i K ~_I.) .-:-_~_/ !-" ~~~ ,~~ ,__. PE~.__ box r ~~~. \---\ / (.0 , 1..."'1:',' I 1 .~~ ~ .:_i.I:LIIJ;ier___ ;, ,{ il) "'!::; -.... "'i"'9~ / . ~ ~.,~}.. }f/ ~'1~'~ '-' -~it' ~:;~{?~:~ '\'0 S,' (I,'(J,.," D -', o nOt r, Nanc Lee Hines & Earl Gen ral Delivery As en, Colorado 81611 & Eleanor Wickham D~C )..~ ~ - --'-- -' ~ ' ",. !-.jhitk :il,hl). ~Zi ~ " .j'--~" ( - ,c, - ~~~ Nancy Lee Hines neral Deliver Asp Colorado , -'.cA-~~:::::;-;-.:..._-~.:::.':i'-4!' .e.' ",,,,,, _. 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" PEN box v W:hjt.~ )r,:'i) ,~~'~,0j:;tct:"^ C' '_ . i?:\ (If p~ .....'-:..~ ..~-..~ -) \~-';Z"__;"_I ~ o ~.....c:..... ~_-------' .. /3. " $'~c-~...........~=<~,__ \.' , \'-I'v'~_ ,illl ,-r,~!",;-J""-- ,,~ J~ .~- _...:. /~)u.".t'I.i,",.J'~ 1..1.. ',. ,,__ . "~H '~ov.~r13 \y~~~. ,'~ --~ /" ~ 'vAk.-#.-mi'o:,o,e;.", \. 't -. .0 ~. , . M.T.,I tl , , 01,:') p~ ,,"" L_ _' __-1< C[t~'0 l vr~'~IMm f,ROM AUSTIN, TE:XA$ Richard & Grace Doyle 3711 Castlidge Dr. Austin, Texas Do not u;e ' this envel ' - C'De allel" IV\JV J.~ Jlli.., ~l() S'lrH STREET . ..... ,'. N-,...---.-.., .,,_" '" ,c.,_ ,__': " -f!UX.v ( ~>; " '\--'-0;. '-:-(; .~ "oQL j~'i.."'t ---. No Sue h O',"~v --:--numtWJr , Dice mstat - o not lemaJl. . €__ - m till:ifiIl,VeJ/jRf \1i.ia SPO:TS t~ ~ ~ ~ << patricia Ann Ward General Delivery Aspen, Colorado 81611 1\10\1 1 P n7r . t!' il~ ! '\ } '~, JI <'~J---'I 1.'0 '1..',. .,. is "", c :.-,~ ~ ,~ 0 '" ',~ ill! _ ,:;":~ -i!"'~!i I~i ~~ "/l"IE .. gJd'11li <:>z;:Y;;1j! 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