HomeMy WebLinkAboutlanduse case.boa.214Bleeker.013-71
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APPEAL TO BOARD OF ZONING ADJUSTI'~NT
City of Aspen
Date July go I ICOI .' Case No.. 7j~d'
I
Appel1ant'N. ~.lOU:5Jhra,",. Sr. Ad<3ressal1 W. Bleeker 9o~ 3/07
owner\J.~.~hraY") Address.;l.11 W. ~ Fh~310'7
Location of PropertYc?l4 W. F51~1' ~ No Wl4.! W.:l6' Lo+p lS1 ~o
. Street & Number of Su c ~vision Bloc ( & Lot No. '
. .
Building Fe-rn,it application an'~ prints or any other pertinent
cata must accompany this application, ano will b~ ~a0e a part of
Case No.
7/~/3
.
The Boar0 will return this application if it coes not contain all
the facts in question.
D . t' -
escr~p ~on 0:':
proposed exception showing justification:
-S...e A-l+<>.<:h.eel ~+e..,.,'<zn-t-
Signed W.l.J. L~' hrt:l'rl, Sr .
b... ~p6 a ao.;:. . .~
l'rO\lisions of: the zoninG or<1inance re;uirtn~B ~ cwg tns-p';c'l~
nn~~_~--t-6=f6rwaYcT this application to'the Board ofAc'justr.1entanc1reason-
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'N'\\ 'oil. ~~ro i''^-t.,~ 0'(\ 0, 0, "-o.~ c-.X:-f'\~ 5000'\"1. o~1
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Status S~gncd
Pfrm~t r:j"c~:0 ~ate:",,\"1 e -~ I Df. cis ion
Apphcat~on nle.: ...\_\",!!! - 1_' Date 01 Hearing
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Date
Secretary
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NOTICE OF PUBLIC HEARING
C N 71-13
ase o.
BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT
TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE
VARIANCE DESCRIBED BeLOW:
Pursuant to the 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 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 Zoping 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 owners and
others affected in deciding whether to grant or deny the request
for variance.
The particulars of the hearing and of the requested variance are
as follows:
Date and Time of Meeting:
Date: July 15, 1971
Time: 4:00 P. M.
Name and Address of Applicant for Variance:
Name: W. H. Loughran
Address: 214 West Bleeker
Location or description of property:
Location: 214 West Bleeker
Description: Block 50, Lots M, N, 0 and West 20' of Lot P.
Variance requested: Application is made for a building permit to build a
two-family dwelling. The proposed two-family dwelling will be constructed
on a lot containing 5000 square feet of land and having a lot width of
50 feet. The minimum required lot area is 6000 Square feet,with a minimum
lot width of 60 feet.
Duration of Variance: (Please cross out one)
~
Permanent
THE CITY OF ASPEN BOARD OF ADJUSTMENT
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C ha irman . !:1'0:
BY
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_W___,.,'~_W=."'~_~'_"____'_'4.__'"" _'_"'_"_,_~.,<.._,,. '"," .-.._"....>v_..=
BLOCK 50
Lots A, B,C
Lot D,
W. 14.54' Lot t
E. 16.46' Lot t
Lot F
Lots K and L
E. 10' Lot P
Lots Q, R, S
BLOCK 51
Lots A, B, C
Lot D
Lot E
Lot F
LIST OF ADJOINING LAND OWNERS
CASE NO. 7/./3
~sther Benninghof
P.O.Box 575
Aspen, Colorado 81611
Joseph Krabacher
P.O. Box
Aspen, Colorado 81611
Robert S. or Wymmefred W. Callender, Tr.
P.O. Box 1062
Newport Beach, California 92663
Nasie NI. Pecjak
P.O.. Box 193
Aspen, Colorado 81611
Lois W. Wilson
General Delivery
Incline Village
Tahoe', Nevada
Grace E. Huffman
Broadbrook Rd.
NIt. Kiscro, New York 10549
Nick E. and Dolores S. Gust
4191 Irving Street
Denver, Colorado 80211
Gretta M. Kettlekamp
3408 morris Ave.
Pueblo, Colorado 81003
mary Horton (Baud en)
lV!oorara
Bingara Road
Narrahri, NSW 2390
Australia
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PROPOSED EXCEPTION
Petitioner owns Lots, M, N, 0 and the West 20 feet of Lot P, in
Blol!:k 50, City of Aspen, Pitkin CouBty, Colorado.
There is now existing on Lot 0 a residential structure numbereu
214 West Bleeker Street (hereinafter referred "to as "214").
Petitioner seeks a variance from the Aspen Zoning Code which
would allow the construction of a two family dwelling unit on
Lot M and the West 20 feet of Lot N, which area contains 5,000
sqUiere feet. (See attached plot plan.)
Petitioner states the following reasons in support of his request
for a va~arce:
5t)' (,!l-jfUThe special conditions, and circumstances surrounding
-this request do not result from actions of this apPlicant7~
~y ~FOQeQeSsor in title in that:
J \ 1. Applicant acrquired the entire parcel on AUgUst. 24,
,/1946, long prior to enactment of the Zofting Code.
2. At thE) 1;':'''1'' vI cH.:qui".i.L':'oil there.wer-ema;nyresi-
nAl1+-La-l- pI'U}JC.L 1iie:El (r."aila1:rl~ ~.u ,3,i::iJH::::.u but lhe ~r'"'j......cL
property was purChased because it inclucl ed Lots IV! cmd N
which Petitioner then planned to develop at some future'
da t e . ad ,;.:;tf a . r ~ ~<<..0
3 fer b ti 'onA to ~ s
(~) That special conditions or circumstances apply to the
li1'l"jj _c t property which dOG?not 8pply to other properties in the
same vicinity and z,one, among which are:
c1' '3:~, J:lct.L Cl.is.L a}!' ~_~ <. G) 1 and. ~ above.
,? The request Coes ~~ n of
less~n\;j fQr the 8UX_'tfu_......:t1. __ nti.;;RI be mi tted ~er
the Zonipg Co' 'cree q~;ectio!1 11- (b)..u:~>--i-f"-rots If,
N, 0 and e We~t...2o.--.f~~ T~+ ~ ""1 :If:::fte-n l1Jll" as a
single p aY.-j;ha-.--t-i1JleOf er.LtWtnlent vi' Lhe z,oning~e.
<.~r()posed structure' .provides fo::~-open
arees~~rom all ad1RQeht DUJ.ld~ngs. (See
a ttalC~.F1.Qt....pJ.anor-------
4 .SVen after constructlo:t'l. of the proposed structure
there will be but four resi~e~t~UJ..'ldin~S on the Bleeke.r
street side of Block 50.~ '~r ~ (' r ~,
~" 0 2 d, i@' PJ1fl~~. ~. u ure/wi 1 e ,0,11
1 , 0 l r e / j)' ',if,' /' n. h~ ag ee;ate. m r Al!;3:!i
, , _ a qu~r_ . b~ ~ o~' ~~~ e s~~es.
.~ (' .~ ) ~'~-:fg ]I 0 '-p/'~/ ) -~'" . -- .
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('i ~ granting of th, :::ion" io ""nti'0l the~
ment of a substantial property right enjoyed by oth properties
in the same vicinity and zone, but cenied to the . t p "_~ bJ
~ecause of the special ~ extraordinary circumstances in that:
/, 1. The ';H.l\' j eet pro"erty is exteIHli':9 ;,., ",;?:p and fully
amenable to development.1 "~ J-' .~~'
~... '~~'pe i t~9neY]is1lJcec~d JroJn s d 10
f~.. " easab~ece.n6mgAiti ~ti~ f e p
c n t be .
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3. i If t1J.e~/ ariance ~ not gran~, the ef~' c:t of the
ZoningCod~VUpo t1J.e prop rty will be t,o confi cate ''8) v'>i-u-
a.bl~prop I'ty r which co].l.ld reaso ably be e 'oyed(bYj'the
Pet1ti er and which is enjoyed by others in the vicinity
an one. ~ cv~~
4. By depriving Potitienel of the valu~property V' ~
right to apply his lands to reasonable ~- ~se the
Zoning Code has imposed upon him a. h:;lFa.:.l,ll' which can be
relieved only by the granting of a variance.~B Ie~ttcstcd.
($) The granting of the variance will not adversely affect
the general purpose of the Comprehensive Plan in that:
1. ~ variance .~efeda-i:7tt~; intent and
purpose of the Code Mf"that it I S grant,~ will not (i) adversely
affect the health, safety or welfare of1 thelcommunity,
(ii) increase conjestion in the streets or place added or
undue burdens on the municipal services, or (iii) overcrowd , / '(
land or create undue concent;ratJ' on Of_f}pulation~~ :? ~...-v-
, Jv /" -/.1 ~ t:-" t '-Y ~/ .'7 d~ ... .71'/ ~;..I. . _? C--,,-- ,)
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3. ~, -purpos;/f to m st
:pp~~pr;d e €~~;t~~~/ e"
w of the Code. ) ~',
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)V.' The C,o~ expr"es~' y provides that pa,rcels of land
eXi~ing.A>efog:renactmen of the c~e consiating of ,0
sq1?-a r, e~Ele,t, ar aC,ceptalr e for tl"[!O fam,il,y 'ill' elliIlf; con
s1;i-uq.t'iCln. (aa Sec. ltilil-90?H4 Implic.tly t):1'n te/
1fam~:i1ti oX. tI: C de re ogniyed t at 5!OOO qua~ a /~
n,ot ~nWf~c~ent groun a tw f~ly d :I~ng.
inclu~:1th~t~~~~~~,s' :er/a:}i}iW\,in/E1ip.Y9I't'~P~ti~,,/iO/~~st
! l!;r:::~ropo ed dwei~ing win provide/perll\8.nenr
~id~ti.a 'propei;y for i wo families, con enieI1tly B . t-
able fi5#' a amil of f as . 'one ~.an a mily of,/
two or three as to e other uni--U. It will be de '., 'in
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such a manner that the entire structure ean be utilized as
a single family dwelling.
2. The proposed structure will be aesthetically
pleasing, well constructed.
3. Adequate offstreet parking at the alley will be
provided to accomod8.te both the proposed strucutre and the
building at 214.
4. Petitioner does not seek this variance for the
purpose of dividing his property. He fully intends to
retain title to the entire 3-2/3rds Lots. The effect there-
fore is that a maximum of three families will occupy 3-2/3ros
Lots on a permanent basis.
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ME:MOH.ANDUM
H.e: Application of legal principals in certain matters before the
Board of Adjustment
INTRODUCTION
This memorandum has been prepared as a result of the applica-
tion of W. H. Loughran for an area variance allowing the construction
of a two family dwelling on Lots M and N, Block 50, City of Aspen,
Pitkin County, Colorado.
During the cour se of the hearing of the Board ci Adjustment held
on July 15, 1971, it appeared that members of the Board are generally
not cognizant of the legal principals applied in such matters or of the
extent of the powers of the Board. The position of the applicant is set
out in his Appeal to Board of Zoning Adjustment, a copy of which is
attached.
1. What arc the responsibilities of the Board of Adjustment?
In order to frame the duties, powers and responsibilities, cer-
tain of the provisions of the Zoning Code (tj1e Code) are significant:
11-1-12:
BOARD OF ADJUSTMENT, VARV\NCES
"(a) Organization, Powers and Duties: The Board of Adjust-
ment shall have the following powers and duties, all of which
shall be exercised subject to the laws of the State of Colorado
and appropriate conclitions and safeguards, in harmony with the
purpose and intent of this chapter, and in accordance with the
public interest and the most appropriate development of the.
area~
"3. Where there arc .P.I.actical difficulties or unnecessary
hardships in the way of carrying out the strict letter of this
chapter, in passing upon appeals, to vary or modify the applica-
tion of these regulations and provisions relating to the use, con-
sLuction or alteration of buildings or structures, or the use of
land, so that spirit bf the ordinance will be observed, public,
safety and welfare secured, and substantial justice done.
"(b) Procedure:
"4. The fol1owing shall be considered valid reasons for
granting a variance ~
"a. That the special conditions and circumstances
do not result from the actions of the applicant.
"b, That special or extraordinary circumstances
apply to the subject property thClt do not apply similarly to
other properties in the same vicinity and zone,'
.,O,~.;c'",,--""'-'.~_ ._,..._.;."',...._'..J.,_,.....,....,._,."'....,""",.;.."."'..,""-...............:;,,~..;,..;;-",~"""'.,/~-'" .......
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"c. That the grantillF of a variance is essential
to the enjoyn,.ent of a sllbsta,;'tial property right enjoyed
by other properties in the same vicinity and zone, but
denied the subject property because of the special
conditions or extraordinary circumstances.
"d. That the granting of the variance will not
adversely affect the general purpose of the conprehensive
general plan. (P. I, Ord. No. 21, Series 1967.)"
Other provisions of the Code point to the proposition that the
Board should permit reasonable eonomic use of property where the
Code, for one reason or amther, has denied such use:
11-1-12 BOARD OF ADJUSTMENT, VARIANCES
"(b) Procedure:
"3. The Board of Adjustment shall hold a public hearing
on all applications and appeals, with the following special con-
ditions required:
"f. The Board of Adjustment shall make a finding
that the conditions in this section are satisfied by the
reasons set forth in the application and that the variance
is the minimum variance that will make possible the
reasonable use of the land, building and structure. "
11-1-1
INTENT AND PURPOSE
"(a) In accordance with the General Plan of the City of Aspen,
Colorado, and as authorized by Article 60, Colorado Revised
Statutes 1963, as amended, this Chapter is intended to encour-
age the most appropriate use of land throughout the City and to
insure the following benefits to its citizens:
"3. To conserve the value' of buildings and encourage
the most appropriate use of land throughout the municipality. "
When a Board of Adjustment fails to act within the g,"idelines of
its authority, it has either abused its discretion, committed an error
or acted arbitrarily. From such we draw the conclusion that if all
statutory standards ar e met by an applicant, he has a right to the vari-
ance sought.
In Yokley, ZoniillL-Law and Practice, S. IS-I, it is stated:
~ "When the requisite facts and conditions detailed in
an ordinance are found to exist, the applicant therefor will be
entitled to a special exception unless there is legally competant
evidence to support a finding that the granting of such exception
is adverse to the public interest. .. (1)
"Thus, where an ordinance authorizes the granting of an
exception as a matter of right, upon a showing of compliance
with the safeguards enumerated therein, the only function of
the Boal'd with regard to exceptions is to decide if the conditions
exist which make the case an appropriate one." (2)
(1) ;L~cobi ~_on~:'.g,_Do'll.cLo~Acliustn::..ent 196 A.2d 742 (Pa.)
(2) SI"~!.LOil Co~--",-,-....t'r<1,!chestc~ 133 A. t.d 501 (N. II.)
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3. Objectors.
It appears that the Board of Adju:-;trnent places an extreme
elnphasis on the objections of persons in th"c neighborhood where those
objections cite no specific or relevant reasons. Of course we cannot
look into the thought process of any 1>)ember of the Board and hence
this is a presumed fact. If an actual fact, 'the law is being subverted.
In Appeal of Lindquist 73 A. 2d 378 (Pa.) it was stated:
"Board docs not properly exercise its discretion on an applica-
tion for a variance if it considers the number of protestants
rather than the nature and quality of the objections."
The objections must be based on the failure of the applicant to
meet one of the require<:t standards. Rathkopf, p. 44- 6, Kent v. Zoning
Board of Review 58 A. 2d 623 (R. 1.).
4. Improper Limitations.
A suggestion was made by the Board that limiting construction
to a single family dwelling might be a compatible way of resolving any
questions in the matter. The Code calls for the same lot area (6,000
square feet) for the construction of any dwelling unit in the R-6 Zone,
regardless of whether such is a one or two family structure. The
imposition of such a restriction would be contrary to the powers char-
acteristicly granted to a Board of Adjustment. Such would constitute
an attempt to amend the provisions of the Code.
Black v. Board of Appeals of Village East Hills, 203 N. Y.S. 2d
9, by analogy supports this proposition that such a restriction is beyond
the power of a Board of Adjustment.
,
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It IS further stated in Yokley, .!:_'-'-1.'.in~ L;1\'/ and Practice, S. 15-1;
lIA denial would be arbitrary, for cxanlple, if it was
c'stablished that all of the standards specified in the ordinance
as a condition to granting the pern1.it have been met. II
Zylkav. Crystal167N.W.2d45 (Minn. 1969)
"In a Delaware decision the court held that a Board of
, Adjustment was not authorized to refuse a permit for the opera-
tion of a trailer park in an agricultural and general purposes
district where the applicant met all the standards that were
lawfully imposed. "
Zoning Board of Adjustment of New Castle County v. Dragon Run
Terrace, Inc. 222 A.2d 315
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The standards arc set forth in (he Co~le, uSlng the phrases gen-
erally applied to zoning matters, in Paragraph 11-1-12 (b) (4), set
forth above.
Thus the Board has a duty to grant a variance where it finds that
all standards have been met. There is no other avenue available despite
the number of protestants and any desire of the Board to molify the
objectors must be subserved to the right of the applicant to his variance,
2, What standards are applicable?
In V. 2 Rathkopf, The Law of Zoning and Planning, p. 45-1, it
states:
"The two types of variances with which the cases custom-
arily concern themselves are 'use' variances and 'non-use'
variances. The latter consist mostly of variances of bulk restric-
tions, of area, height, density, set back, side line restrictions
and restrictions covering miscellaneous subjects including the
right to enlarge non-conforming uses or to alter non-conforming
structures.
"As the name indicates, a 'use' variance is one which
permits a use other than that prescribed by the zoning ordinance
in the particular district; it permits a use which the ordinance
prohibits.
"An area variance, on the other hand, has no relation to
a change of use; it is primarily a grant to erect, alter or use a
structure for a permitted use in a Hlanner other than that pre-
scribed by the restrictions of the zoning ordinance.
"Use variances are customarily concerned with 'hardship, 1
i, e. that the land cannot yield a reasonable return if used only
in accordance with the use restrictions contained in the ordinance.
Consequently, a use not permitted by the ordinance must, under
such circuinstances, be permitted by the board of appeals in
order that the ordinance will not operate in such manner as to
confiscate the value of the land.
"Area variances are custOlnarily concerned with 'practical
difficulty,' i. e. that the property or a structure thereon cannot,
as a practical matter, be used for a permitted use without coming
into conflict with certain of the restrictions of the ordinance such
as side-yard, rear yard, set back or area restrictions or those
affecting bulk or del~sity."
The Code in Sec. 11-1-12 (a) (3), supra, makes reference to
"practical difficulties or unnecessary hardships" as grounds for varying
or modifying the application of the regulations. Rathk.21?i at p. 45-23, in
discussing a similar phrase in a New York ordinance states:
"In New York, a practical distinction is made iri the law
applicable to the two types of variances, i.e. a use variance and
an area variance, it distinction possibly engendered by the use in
_ ::-1..
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the enabling act of the disjunctive 'or' in the power groll1ted to
boards of appeal s to Val' y the application of the ",oning ordinance
in case of 'practical difficulties .Q!. unnecessary hardship.' Re-
garcUess of its genesis, the fact that there is a difference in the
powers of the board of appeals in the two cases is supported by
the language of the Court of Appeals of New York in the leading
case of Otto v. Steinhilber, in which the prerequisites for a use
variance are set forth (1) and by the subsequent case of Matter
of Bronxville v. Francis (2).
"In the Matter of Bronxville v. Francis, the Appellate
Division stated that the New York courts have 'consistently held'
that the requirement of unnecessary hardship has application
only to a variance in the -,,-se of premises and that, in the absence
of a statutory provision to the contrary, an area variance may
be granted on proof of practical difficulty only. The basis for
this lesser requirement with respect to area variances is stated
to be that in such case, there is no change in the character of
the zoned district (and, therefore, no need to balance the effect
of the grant of relief upon the character of the district against
the deprivation of the owner's property). "
In Otto v. Steinhilber, supra, the requirements for use variances
were set forth and quoted in RathkQEi at p. 45- 2:
"Before the Board may exercise its discretion and grant
a variance upon the ground of unnecessary hardship, the record
must show that (l) the land in question cannot yield a reasonable
return if used only for a purpose allowed in that zone; (2) that
the plight of the owner is due to unique circumstances and not to
the general conditions in the neighborhood which may reflect the
unreasonablenes s of the zoning ordinance itself; and (3) that the
use to be authorized by the variance will not alter the essential
character of the locality. "
Rathkogf, at p. 45-28, further summarized the questions properly
before the board in applying the practical difficulty test in an area vari-
ance case:
"I) Whether compliance with the strict letter of the
restrictions governing area, set backs, frontage, height, bulk
or density would unreasonably prevent the owner fron'1 using the
property for a permitted purpose or would render conformity
with such restrictions unnecessarily burdensome.
"2) Whether a grant of the variance applied for would do
substantial justice to the applicant as well as to other property
owners in the district, or whether a lesser relaxation than that
applied for would give substal;tial relief to the owner of the pro-
perty involved and be more consistent with justice to other pro-
pertyowners. .
"3) Whether relief can be granted in such fashion that
the spirit of the ordinance will be observed and public safety and
welfare secured.
"In considering these basic questions the board should take into
consideration the nature of the zone in which the property lies,
the character of the immediate vicinity and the uses contained
therein, whether, if the restriction upon the applicant's property
were removed, such removal would seriously affect such neigh-
boring property and uses; whether, if the restriction is not
(1) Olto v. Steinhilber 24 N. E. 2d 851 (N. Y.)
(2) Matt(,l~ of Br()n;:-;'ill('__.\f._I~>:i}D.<:il!. 1 ',0 N. Y. S. 2d ')OG
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renlovcd, the restriction would have a tendency to create hard-
ship (to any extent) to the owner in relation to his efforts to make
nonnal irnprovements in the character of that use of the property
~hich is a pern1ittccl use uncler the use provisions of the ordinance. II
It should be noted that the standards expressed above by RathkoJ2f
eliminate certain standards expressed by the Code, namely, those d
uniqueness and no fault in the applicant in creating the condition.
RathkoEf states at p. 45-29:
"In the later case of Turiano v. Gilchrist (I) the same court held,
in a case involving a substandard lot and in which a variance of
the minimum lot area and minimum lot width provisions of the
ordinance were applied for, that plaintiff need not establish a con-
dition unique and peculiar to his property or uneces sary hardship
in connection therewith. "
We think that this application of the uniqueness requirement is
probably consistent with the terms of the Code. "Uniqueness" is defined
in Rathk~, p. 45-4:
"The authorities seem uniform on the proposition that
the difficulties or hardships relied on must be unique to the parcel
involved in the application for a variance. They must be peculiar
to that particular property, and not general in character, since
difficulties or hardships shared with others in the area go to the
reasonableness of the zoning generally, and will not support a var-
iance. If the hardship is one which is common to the area the
remedy is to seek a change of the zoning for the neighborhood
rather than to seek a change through a variance for an individual
owner," Elwyn v. City of Miami (Dist. Ct. ApI'. Fla 1959), 113
SO,2d 849.
An area difficulty or non-use type of practical difficulty must in
each instance be peculiar to one particular parcel and cannot be general
in, the neighborhood. Thus, the application logically must be directed
solely to use variances or implicitly included in non-use variances as a
condition met.
A similar argU111ent, by analogy" can be applied to the "no fault"
requirement, thereby eliminating consideration by the board of that
requirement in area or non-use variance cases. Such is further ar.:;ued
to be inapplicable to area variances On the basis that since i'hardship" is
an inapplicable standard as to area variances, the standard of "no fault"
is als 0 inapplicable.
_ ____~___..C_____.....___ ___
SUMMONS IN CIVIL ACTION
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Court Filing Stamp
IN THE DISTRIcr COURT IN AND FOR THE
~x~ COUNTY ot~ AND
STATE OF COLORADO
OVIL AcrION NO......!!!!9.Z..........................DIV.................
uJ;;P V
W. H. LOUGHRAN and
CAROLYN LOUGHRAN,
PLAINTIEt.......
SUMMONS
VI.
BOARD OF ADJUSTMENT,
CITY OF ASPEN,
DEFENDANf......
THE PEOPLE OF THE STATE OF COWRADO
To the above named defendant....... GREETING:
You are hereby summoned and required to file with the clerk an answer to the compl.int within 20
days after service of this summons upon you. H you fail so to do, judgment by default wilfbe taken against
you for the relief demanded in the complaint.
H service upon you is made outside the State of Colorado, or by publication, or if a copy of the
comJ?laint be not served upon you with this summons, you are required to file your answer to the complaint
within 30 days after service of this summons upon you.
This is an action. under the prov1s1ons of Rule 106 of the
Colorado Rules of C1v11 Procedure as more fully set out
on the attached Compla1nt.
Dated...~:P.te.Jll.h8.l'...~O........,~ n.......
6 /
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Auomey for Plainrifl
Clerk 01 the District Coon
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By...........n.....................................................................
,-,;cc"::E Deputy Clerk
. '. . (SEAL OF TIlE COURn
Bruce K1stler
p.~.Q.~....!?~.!...}.!p.Z.!...!!:.~.P..~~.L.s:~~.?.~.?..!~.~ 1
Address 01 Auomey
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. : N~ - Tbi, summons is issued pursuant to Rule 4. CoIomdo Rules Civil Procedure.
. ~1f i~e Summons is published or served without. copy of the complaint, after the word "action"" state the relief demanded.
I ~f :body execution is sought the summons must ltate, '''l"hiI is aD action founded upon tort."
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IN THE DISTRICT COURT IN AND
FOR THE COUNTY OF PITKIN
AND STATE OF COLORADO
W. H. LOUGHRAN and CAROLYN LOUGHRAN,)
)
Plaintiffs,)
)
v. )
)
BOARD OF ADJUSTMENT, CITY OF ASPEN, )
)
Defendant. )
COM P L A I N T
Plaintiffs, pursuant to Rule 106 Colorado Rules of Civil
Procedure, complain and allege as follows:
1. Plaintiffs are the owners of Lots M, N, 0 and the West
20 Feet of Lot P, Block 50, City of Aspen, and have been owners
of said lands since August 24, 1946.
2. The Zoning Code of the City of Aspen was enacted into
law in the year 1956.
3. Pursuant to the said Zoning Code the Board of Adjust-
ment was duly established.
4. In July, 1971, Plaintiffs filed with the building
inspector of the City of Aspen an application to construct a two
family dwelling on the above described property.
5. The said application was denied as being contrary to
the lot area requirements of the Zoning Code insofar as there
existed a two family dwelling unit on Lots 0 and the West 20 Feet
of Lot P.
6. Plaintiffs filed their appeal of such denial to the
Board of Adjustment on or about July 8, 1971, pursuant to Section
11-1-12 of the said Zoning Code and such was docketed as Case
No. 71-13.
7. On or about July 15, 1971, the said appeal came on for
public hearing and after discussion was tabled until July 22, 1971,
at which time the Board of Adjustment granted a variance from the
provisions of said Zoning Code which allowed Plaintiffs to build
a dW~lling structure on Lot M and the West 20 Feet of Lot N of
said Block 50, but imposed restrictions on such authority to build
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whlch (a) 11mlted the use of such bul1dlng
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to that of a slngle 1;1;)
faml1y dwelllng and (b) made the provlslon that four off-street
parklng spaces be provlded for both the proposed structure and
that of the exlstlng adjacent structure.
8. The act of 11mltlng the rlght to bul1d and occupy only
a slngle faml1y dwelllng and the lmposltlon of the provlslonfor
four off-street parklng spaces as a condltlon to the varlance
were 111egal, erroneous, dlscrlmlnatory and constltuted a palpable
abuse of dlscretlon by the Board of Adjllstment whlch prejudlced
Plalntlffs ln the reasonable use of thelr land.
9. The Board of Adjustment made the necessary flndlngs of
fact upon whlch the rellef sought by Plalntlffs should have been
granted as a matter of law.
10. There exlsts no other plaln, speedy or adequate remedy
for p1alntlffs under the clrcumstances other than provlded by
Rule 106 of the Colorado Rules of Clvl1 Procedure.
WHEREFORE, P1alntlffs pray for an order (1) requlrlng the
return to the Court of all proceedlngs of sald Board of Adjustment
on sald appeal wlth certlfled or sworn coples of all papers, proofs
and testlmony before or acted upon by the sald Board and (2)
dlrectlng sald Board of Adjustment to show cause why the declslon
should not be modlfled to grant to the Plalntlffs the rellef sought
on such appeal wlthout the 1lmltatlon to constructlon of a slngle
family dwelllng and wltho'lt lmposlng off-street parklng restrlctlons,
and for (3) such other and further rellef as to the COllrt appears
proper.
jl-y~!..u-<-- /ut~\._
Bruce Klstler
Attorney for Plalntlffs
P.O. Box 3107
Aspen, Colorado 81611
Telephones 925-7139
Plalntlffs' address:
765 south Alton Way
Denver, Colorado
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AND STAm OF COLUH!\;JO
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IN THE DL>THICT C(1'!IlT llJ AND
FOR TIm CO'JNTY Of' PITKIN
w. H, LOUGHRAN and CAROLYN LO:JGHHAN,)
)
Plaintiffs,)
)
v. )
)
BOAED OF ADJU3TI'iZ:,T, CITY OF AS]"::':N, )
)
Defendant. )
A F F I D A V I T
Bruce Kistler, being first duly sworn upon his oath deposes
and says:
1. He is the attorney for Plaintiffs in the above captioned
matter and so acted in connection with and was personally present
at their appeal to the Board of Adjustment as referred to in their
Complaint.
2. The facts set forth in Plaintiffs' Complaint are, to his
best knowledge and belief true and correct.
J. The Eoard of Adj:lstcent in refusing to grant to PlaintJffs
their requested relief abused their discretion and imposed illegal
restrictions on the use of the property of Plaintiffs in th~t they
restricted the use of such property to a use not limited by the
Zoning Code, namely a single family dwelling and imposed excessive
off-street parkins requirements as a condition of such variance.
Dated September 20, 1971.
I.
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13r'.-1ce Ki.stler
SJbscribed and sworn to before me the 20th day of September,
1971, b;y B~r.cs KI3TL~~R.
h,~~.
C' , ;\C;f:t.~
Lot- J .rlblic f
i-iy commission expires: 0ft<l
Re r<LOliC Hearing on
Case # 71-1;
July 15, 1971
Mrs.Eleanor Hubbard,Chairmsn
The City of Aspen Board of Adjustment
City of Aspen
Box V
Aspen,Colorado 81611
r.tr dear lIrs.Hubbard.
In the matter of the petition to the City of Aspen Board
of Adjustment requesting a varianoe on the zoning or use of Lots N,
N,O and West 20' of Lot P in Block 50,Aspen, I object to such var-
iance being granted. I have written to lIr.John Bemti.nghoff, another
property owner in Block 50, authorizing him to speak in OW behalf
at the public hearing.
Mr.and Mrs.Bruce Kistler have entered this petition in the
name of W.H.Lougbran from whom they lease this property. The Kistlers
plan to cram a two-fsmi.ly dwelling onto 5000 square teet of land 1ibich
is a substandard. site tor even a one-tsmi.ly dwelling under the estab-
lished zoning for Block 50.
As the owner of the adjoining property - Lots Q,R,S and the
East 10' of Lot P - containing a one-fsml.ly dwelling on 10,000 square
feet of land, I strongly object to such variance being granted and sin-
cerely hope that your Board will see f'i t to deny the petition. Such a
use as the Kistlers propose would seriously alter the character of
Block 50 and would reduce the value of the surrounding property in
the minds and feelings of present residents of the area. It would also
start a subtle deterioration of the relatively quiet ,stable and mainly
residential area which currently surrounds the school.
Thank you tor your consideration in this matter.
MRS, WARREN E, WILSON
559 Tyner Way
General Delivery
Incline Village, Nev. 89450
Sincerely, ,
\..o.:...~ ~ .....uc:J2.. ~ &.,........
July h, 1()71
CiC:j of Aspen
Board of Adjustments
Ci ty Hall
Aspen, Colorado
Dear Sirs:
In regard to the request for
a variance from the present
status of the lots H, N, 0,
and part of P, Block 50, I
wish to go on record against
the granting of this variance.
'~aisie Pecjak
232 ',ves t Bleeker
Aspen, Colorado
Respectfully yours,
/iCUA-Q tf'r
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July, 12, 1971
City of Aspen
Board of Adjustments
City Hall
Aspen, Colorado
Dear Sirs:
In regard to the request for
a variance from the present
status of the lots M, N, 0,
and part of P, Block 50, I
wish to go on record against
the granting of this variance.
Respectfully yours,
~~,
ROBERT S. CALLENDER
~-:>.8. BOA JVO-' . NEWPvld lJE-ACn. \.du...U'ORNIA Y~OO.1
.July I?, 1 '71
lIre: ~leo,nor Y1ubbr.rd, Chrmn.
The c=- t:" 0= A~~~J8n Bo:-:ord of Adju;:;tment
Ci ty Edl
A~~0n, ColorEdo ~1611
I ~':i~h to ~ldv.l~)8 ~rou thet I :::-1 ~:.goi ru::;t:'{rt!ltin<r tho vorirYlce
rerue:::lted in C-_ ~,'; - o. 71-13. 1l1he [:.-:-Y01ic::~nt beinG -:'-[. ~.Lou~7hr[:n.
3inc~'r0~__Y
f20~.xI~
Robert S. Ce.llender
Board of Adjustment
City of Aspen, Colorado
"
'., I (we) concur with and approve of the Petition for a Zoning Variance
of W. H, Loughran on Lots M, N, 0 and the West 20 feet of Lot P,
Block 50, City of Aspen, County of Pitkin, Colo,rado.
,
Date:
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Board of Adjustment
City of Aspen, Colorado
I (we) concur with and approve of the Petition for a Zoning Variance
ofW. H. Loughran on LotsM, N, o and the West 20 feet of LotP,
Block 50, City of Aspen, Pitkin County, Colorado.
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Date:
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Board of Adjustment
City of Aspen, Colorado
I (we) ,concur with and approve of the Petition for a Zoning Variance
of W. H, Loughran on Lots M, N, 0 and th", West 20 feet of Lot P,
Block 50, City of Aspen, Pitkin County, Colorado.
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