HomeMy WebLinkAboutminutes.council.20190909Regular Meeting Aspen City Council September 9, 2019
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SCHEDULED PUBLIC APPEARANCES – Red Cross Life Saver Award Presentation ................. 2
CITIZEN COMMENTS ............................................................................................................................... 2
COUNCIL COMMENTS ............................................................................................................................ 2
AGENDA AMENDMENTS ........................................................................................................................ 3
CITY MANAGER COMMENTS ................................................................................................................ 3
BOARD REPORTS .................................................................................................................................... 3
CONSENT CALENDAR ............................................................................................................................ 3
• Resolution #98, Series of 2019 – Galena Plaza Parks Planning – Concept One Group
Change Order ............................................................................................................................................. 4
• Resolution #97, Series of 2019 – Galena Plaza Parks Planning – CCA Change Order ........ 4
• Minutes – August 26 and September 3, 2019 ............................................................................... 4
NOTICE OF CALL UP HPC approval for 414-422 E. Cooper Ave – Minor Development Review,
Commercial Design Review, GMQS, Transportation and Parking ..................................................... 4
ORDINANCE #22, SERIES OF 2019 – Establishment of Transferable Development Rights
(TDR) – 616 ½ West Main Street, Unit B ............................................................................................... 5
RESOLUTION #91, SERIES OF 2019 – Temporary Use- Silver City Ice Rink................................ 5
RESOLUTION #96, SERIES OF 2019 – Appeal of an Interpretation of the Land Use Code – 320
W. Main Street ............................................................................................................................................ 7
CML POLICY – City of Aspen Suggested Policy Position Consensus Proposals ......................... 10
LETTER OF SUPPORT – Solar Energy in Pitkin County .................................................................. 11
EXECUTIVE SESSION ........................................................................................................................... 11
Regular Meeting Aspen City Council September 9, 2019
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At 5:00 p.m. Mayor Torre called the regular meeting to order with Councilmembers Richards,
Hauenstein, Mesirow and Mullins present.
SCHEDULED PUBLIC APPEARANCES – Red Cross Life Saver Award Presentation
Cory Vander Veen, recreation, said it is nice to recognize our staff who serve the community
day in and day out. Erin Hutchings, recreation, said all our aquatic programs run through the
red cross. We hold monthly trainings. We also participate in the red cross examiners service to
make sure we are doing things to protocol. Eric Meyers, red cross executive director for
western Colorado said Iuliia and Trevor prevented an emergency. We don’t give these awards
very frequently. Drowning is one of the leading causes of infant death. On April 14, 2019 they
helped save the life of a child at the ARC. Iuliia and Trevor entered the water and retrieved the
child. Both lifeguards have been awarded the American Red Cross live saving award. Eric
presented both with the award.
CITIZEN COMMENTS
1. Scott McDonald,1000 E Cooper, spoke about the redefinition of the east end addition.
The 1959 plat survey differs from the 1890 plat. There are ramifications for homes built
at the turn of the century. He commented about the difference in plats from 1959 and
1890. He believes true north was mis represented when it was first platted. Our issues
need resolved in a timely manner. He said they have been working with the city attorney
but there needs to be a resolution.
2. Lee Mulcahy stated he has the records that APCHA asked for in 2018. They said they
couldn’t look at the records because I missed the deadline.
Jim True, city attorney, said a lot of this is directed towards Tom Smith. There was a
complaint against Mr. Smith. It was reviewed by the council of the supreme court and
determined that an investigation was not warranted. I don’t believe I was wrong in my
statements. This case is moving forward. It is not a city case it is an APCHA case. All
of his assertations have been taken to the supreme court and he has been ruled against.
3. Bob Morris thanked council for installing the crossing lights at Spring and Main. He
would like to see lights at other intersections. He ran in to a tourist a few Sunday’s ago
on Smuggler and he was picking up trash on the trail. We all need to pick up trash
more.
COUNCIL COMMENTS
Councilwoman Mullins said the opening for new ambulance barn is currently going on. It is a
really impressive facility. They are out there 24/7 and it is a second home. There is great
community space they are willing to share.
Councilman Hauenstein said he will be leaving for Washing DC on Wednesday representing
mountain pac. We will be lobbying seeking full funding of the land and water conservation fund.
He would appreciate a letter of support from council representing our position. Council supports
the letter of support. Mayor Torre asked all council members names be included.
Councilwoman Richards thanked Ward for going to DC. It‘s important for our representatives to
hear from us.
Mayor Torre said the rio grande recycle center has moved to targeted collection. Things are
going great. Some are still showing up with single stream. It is no longer accepting that. We
are highly encouraging utilizing curb side pickup service. He gave a compost shout out to the
Regular Meeting Aspen City Council September 9, 2019
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big wrap. Mill Street in front of the Wheeler is now one way for vehicles. It is still 2 way for
bikes. This is in effect because of the construction of the crystal palace building. It will be
happening for at least 18 months. Tomorrow work session topics include an APD update and
city offices. He thanked the Aspen Institute as well as Cavanaugh and Blanca Oleary for
hosting the governor last week.
AGENDA AMENDMENTS
Resolution #96 LUC appeal will be the first action item. It is not a public hearing.
CITY MANAGER COMMENTS
Sara Ott talked said it feels great to drop the interim word.
BOARD REPORTS
Councilwoman Richards said on September 21st she will be in Grand Junction with Club 20. We
will discuss the process for debates for 2020. On the 18th is the Colorado river districts annual
meeting. APCHA is looking at revised guidelines. We don’t have a clear process. She would
like council to review them before APCHA votes on them. She asked if there should be
community involvement. Ms. Ott said the first request is how is the council going to provide
input to their representatives. That can be worked into a worksession. Secondly is how APCHA
has a more transparent process prior to adoption. She suggested that being a conversation at
the APCHA retreat. We can work with them to consider some ways to push out information
more quickly.
Councilman Hauenstein said Ann and I both attended the CORE meeting. They are getting
ready for the 25th anniversary, budget prep and working on a work plan.
Councilwoman Mullins said at CORE there was lots of discussion about the anniversary
celebration and grant announcements. Discussion about changes in funding. Lot of discussion
about the strategic plan. CCLC met and discussed the Saturday market and alley ways. There
will be an alley clean up day in October. This week there is a regional HHS meeting. RFTA
meets on Thursday and sister cities Thursday afternoon. CML is hosting their regional meeting
in Snowmass Thursday afternoon. Councilman Hauenstein said CCLC also discussed the
increased interest of reinvolving ACRA with CCLC.
Councilman Mesirow said the Burlingame housing board met. General maintenance contracts
were approved. APCHA met and we are looking at guideline changes.
Mayor Torre attended the ACRA meeting. There were presentation from the Colorado
workforce center.
CONSENT CALENDAR
Councilwoman Mullins asked who comprises the friends group. Jeff Pendarvis, asset, replied
Bill Stirling and Harry Teague. Councilwoman Mullins said if you are going to refer to a specific
group please identify it. Ms. Ott said going forward we will not be referring to any individual
citizen groups. Mr. Pendarvis replied going forward it is public outreach. Councilman Mesirow
said my concern was the same. Mayor Torre asked for the numbers for the change orders. Mr.
Pendarvis replied the largest number is with CCA, architect of record. Under them would go
Design workshop and PR studio. Combined it is $147,000. For Concept One it is $20,000.
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The total with contingency is $201,000. Councilman Hauenstein said this is a result of citizens
requesting council have more input on the design of the gateway. Councilman Mesirow said
between phase 2 and 3 there is a significant amount of time. Would it make sense after public
engagement to come back to council. Mike Tontis, parks, replied there will be a check in with
council. The goal is to arrive at schematic designs. Mayor Torre said the results of this process
will add costs to the overall project. Mr. Pendarvis stated it depends on where the process
takes us. We have a design right now we can move forward with. It depends if there are
modifications to that.
• Resolution #98, Series of 2019 – Galena Plaza Parks Planning – Concept One Group
Change Order
• Resolution #97, Series of 2019 – Galena Plaza Parks Planning – CCA Change Order
• Minutes – August 26 and September 3, 2019
Councilwoman Mullins moved to adopt the consent calendar; seconded by Councilwoman
Richards. All in favor, motion carried.
NOTICE OF CALL UP HPC approval for 414-422 E. Cooper Ave – Minor Development Review,
Commercial Design Review, GMQS, Transportation and Parking
Amy Simon, community development, said when certain approvals are given, we are required to
inform council. You will have the opportunity to ask more questions. You could remand this
back to the board with direction. The property is 9,000 square feet and located on the
pedestrian mall. It is a landmarked property. Growth management and parking are not subject
to call up. The project is the creation of a venue for Jazz Aspen. It will come into the building
where the poster shop is. That will be the lobby. It will also serve the Bidwell property. Jazz
Aspen will be located on the upper floors. Some exterior changes including windows and
replacing sliding glass doors. Currently there is an open deck that faces the alley. The
applicant will be creating an addition there. HPC approved those changes. It is the commercial
design review changes that are subject to the call up. There will be 1,760 square feet of new
net leasable space. HPC conducted growth management review. They do receive a break on
affordable housing mitigation. There is parking required but no space on the lot for it. They will
pay cash in lieu. HPC approved 7 to 0. We are recommending council uphold that approval.
Councilwoman Richards said she is not interested in call up.
Councilman Mesirow said under the guidelines there was a reduction in affordable housing
mitigation. Council has changed that requirement. For the fraction of an FTE that needs to be
mitigated, currently we allow that to be mitigated through cash in lieu or credits. He encouraged
council to think about eliminating cash in lieu.
Councilman Hauenstein said the transformer will be shared. Ms. Simon said we bring in other
departments early on to troubleshoot. Engineering and utilities looked at this project. It is not
clear where the transformer will be located but it is being addressed. Councilman Hauenstein
asked about the public amenity. Ms. Simon said there is none on the site right now.
Councilman Hauenstein said the scale of the redevelopment, would it normally have required it.
Ms. Simon replied no, because it is not trigging demolition. There is a requirement for the
demolition of the poster shop. It sits on the same property but is tied to the Bidwell
development. Councilman Hauenstein said he support this.
Mayor Torre said there is no desire for call up.
Regular Meeting Aspen City Council September 9, 2019
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ORDINANCE #22, SERIES OF 2019 – Establishment of Transferable Development Rights
(TDR) – 616 ½ West Main Street, Unit B
Councilwoman Richards moved to read Ordinance #22, Series of 2019; seconded by
Councilman Hauenstein. All in favor, motion carried.
ORDINANCE NO. 22
(SERIES OF 2019)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE
ESTABLISHMENT OF TRANSFERABLE DEVELOPMENT RIGHTS FOR THE PROPERTY
LOCATED AT 616 ½ WEST MAIN STREET, UNIT B, 616 WEST MAIN CONDOMINIUMS,
ACCORDING TO THE CONDOMINIUM MAP OF THE 616 WEST MAIN CONDOMINIUMS
RECORDED OCTOBER 6, 005 UNDER RECEPTION NO. 515825 AND AS DEFINED AND
DESCRIBED IN THE CONDOMINIUM DECLARATION RECORDED OCTOBER 19, 2005 AS
RECEPTION NO. 516418, CITY AND TOWNSITE OF ASPEN, COUNTY OF PITKIN, STATE
OF COLORADO
Councilwoman Richards asked do we know where the TDRs will be landing. Sarah Yoon,
community development, replied no, this is for the approval of establishing TDRs.
Councilwoman Richards asked will the TDRs allow another property to build to its maximum or
exceed. Ms. Yoon said certain districts allow for the TDRs. It would be in addition to the regular
square feet. Councilman Hauenstein asked are both unit A and B owned by the same people.
Ms. Yoon replied no. All the underdeveloped rights are given to unit B.
Councilman Mesirow asked was part of this affordable housing. Ms. Yoon stated it was deed
restricted but a voluntary restriction. It was lifted. Councilman Hauenstein asked is unit A or B
the ADU. Ms. Yoon replied unit B was. It is residential now. Councilman Hauenstein asked
was the ADU rented. Ms. Simon said at one time the Victorian was a single family home. The
garage was converted to an ADU. It was changed to a free market unit. The voluntary ADU is
long gone.
Councilwoman Richards said the historic property that remains, it is oversized now for what
would be allowed on that lot. Jennifer Phelan, community development, said the issue is there
were code changes that now prohibit residential uses in that zone district. It needs to be all
residential or all commercial not combined. Ms. Simon said they can’t add on anymore, but they
can sell TDRs.
Councilman Hauenstein moved to adopt Ordinance #22, Series of 2019 on first reading;
seconded by Councilman Mesirow. Roll call vote. Councilmembers Mesirow, yes; Richards,
yes; Hauenstein, yes; Mullins, yes; Mayor Torre, yes. Motion carried.
RESOLUTION #91, SERIES OF 2019 – Temporary Use- Silver City Ice Rink
Phillip Supino, community development, said this is a continuance from August 12. We
discussed the potential for a different use of ice rink. Council gave direction to come back with
an alternative to continue ice skating. The applicant is capable of securing a temporary unit for
freezing the ice. Staff proposes a 1 year temporary use with noise performance guarantees
written in to the agreement. Users of the rink will experience noise most directly. Relatively to
ambient noises, pedestrians on Durant will be far less impacted. It is my understanding decibel
levels decrease exponentially the further you move away from the source. The resolution
directs the applicant to work with staff on screening. Given the alternatives for the site and the
timing, staff recommends approval.
Councilman Hauenstein said temporary use allows for 180 days. Mr. Supino said the resolution
stipulates 140 days. It is a rough approximation of the operation timeline from the original
approval, Thanksgiving through March 31. 140 days give them a bit of buffer.
Regular Meeting Aspen City Council September 9, 2019
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Councilwoman Richards asked what is the longer term plan after the temporary use. Will we
get another request next year. With the screening is there an opportunity for sound dampening
as well.
Chris Bendon and Bob Weisman, representing the applicant. Mr. Bendon said we were able to
find a surface mount system. It would be rented. It would be located as far away from CP
Burger that you can get on the site. We are happy with the staff drafted resolution as well as
working with them on screening. They can add sound blankets to the machine to buffer the
sound. The system doesn’t run continuously. For the most part in the winter once the
temperature drops it doesn’t run. We are fine with the one year. I would expect us to be back
at the end of the ski season to put in a temporary use for the next year. We are anxious to
move forward with discussions for long term use of the property. We want to engage with the
community and council as to what that might look like. The applicant is aware of the public
feedback and the council feedback and felt like they were doing the right thing. In some of their
discussions they felt like the perception was they were stepping away from their obligations.
That is not the case.
Mr. Weisman said we have 560 owners. I’m president of the HOA. We feel we have always
met our responsibilities and are good citizens. The original ordinance predates us by quite a bit.
The board was faced with an aging infrastructure. The EPA determined the coolant was toxic
and fully banned it as of 2021. The prior board did substantial research to search for solutions.
The synthetic surface is used by many organizations and communities. Our prior board
determined the synthetic ice was cost effective, eliminated the use of toxic chemicals and was
energy efficient. The city agreed and gave its approval in 2018. The association invested
$110,000 to purchase and install the ice. The city withdrew its approval in 2019 without prior
notice. We filed an appeal, which is on hold. The association will meet its responsibilities under
the 1990 ordinance. We ask the council to be receptive to new ideas as we develop concepts
with planning.
Mayor Torre opened the public comment. There was none. Mayor Torre closed the public
comment.
Councilwoman Mullins said the memo says there will be a process for future uses. I would like
to include further research into having the ice remain. I think the primary use the city wants is
the rink. The noise and visual barrier, who will be taking a look at the visual impact. Mr. Supino
replied staff will work with the applicant to develop an acceptable solution. Noise is more
challenging. We would come up with something that meets the commercial design standards.
Councilman Hauenstein said I feel there was a good faith effort with the synthetic ice it did not
work out to the satisfaction to the citizens. I agree it seems like the only time the chiller will be
running is during day light hours. You are projecting it might be a 2 winter process to find a
permanent solution. Mr. Bendon replied depending on where the conversation goes. Staff has
drafted it for one year. It should give you confidence to extend it for another year. Councilman
Hauenstein asked if there is a roof or camouflage that could be installed. Mr. Supino said staff
is happy to look further into it. There are concerns from the manufacturer related to heat
ventilation. There is an optimal running temperature where being fully enclosed would be
challenging. There are also issues about servicing the unit if it is enclosed.
Councilwoman Richards said regarding the enclosure, if it was valuable to the noise mitigation
not to just have it enclosed. I don’t want to upset the system.
Mayor Torre said I appreciate the way that you have handled this. It gives me confidence you
will mitigate the impacts whatever they are.
Councilwoman Richards moved to adopt Resolution #91, Series of 2019; seconded by
Councilwoman Mullins. All in favor, motion carried.
Regular Meeting Aspen City Council September 9, 2019
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RESOLUTION #96, SERIES OF 2019 – Appeal of an Interpretation of the Land Use Code –
320 W. Main Street
Ben Anderson, community development, said this is to review an appeal issued by the
community development director from July 2019. It is a fairly complex application. The building
was constructed in 1890. It was designated in 1988. It was put on the historic register in 1999.
It was built as a home known as the Elisha Smith house. A big chunk of its history was as a
residence. In 1998 there was a change of use from office to residential. Prior to 2002 it was
one lot of 9,000 square feet. In 2002 the main house was separated from the carriage house
creating 2 4,500 square foot lots. In 2004 there was another change in use application
changing the property from residential to office. In 2005 council created the MU zone district
and created a number of characteristics of that zone. Most important to that was what brought
the question of interpretation. The 2005 land use code change was a 20 percent penalty for
new free market residential properties. The existing building is larger than allowable for free
market residential after 2005. The main house has 3,306 square feet. With the 4,500 lot, for
commercial use if not a historic it is a 1 to 1 ratio. Because it is historic it is limited to the square
footage of the existing building. For free market residential use, the way the 20 percent penalty
applies, it would be 2,256 square feet of allowable floor area. Could staff approve a change in
use from office our response has been no because the existing floor area exceeds what is
permitted for free market residential in the MU zone. The interpretation that was issued says a
change in use would not be allowed due to the condition that the existing floor area exceeds the
allowable for the zone. First, the current use as commercial office is an allowed use. The
property is conforming with the allowed floor area for this use. Staff views that any language
from the non conformities chapter of the land use code does not apply. Secondly, while the
property was certainly a residence during its history, it was commercial use when the code was
changed in 2005 creating the disincentive to convert properties on Main Street to free market
residential. Any prior vesting or status as a residential property no longer applies. From the plat
for the 2002 historic landmark lot split note #5 states the lots contained herein shall be
prohibited from further subdivision and any development of the lots will comply with the
applicable provisions of the code in effect at the time of application.
Criteria for appeal include denied due process, exceeded it jurisdiction and abused its
discretion. The applicant is not proposing they were denied due process. The appeal focused
on the director abused her discretion. It is related to the nonconformities section of the code as
well as the mixed use zone district.
Staff response is the property in is current configuration and use is conforming. Any language
from the non conformities chapter does not apply. When the property was approved for a
change of use to office in 2004 its status as a residential use came to an end. The current
limitations in the code apply. The interpretation was not an abuse of discretion. Staff has
landed on the interpretation to give honor to previous council decision and the 2005 code to
disincentivize commercial properties from changing to free market residential properties. In
terms of the code and how we consider use, the residential use came to an end in 2004. We
recommend you approve affirming the interpretation issued in July.
Councilwoman Richards asked are you saying there is an underlying residential right but it is to
a smaller FAR than currently exists. Mr. Anderson replied yes.
Rob Levy, owner, said one of the things that attracted me to Aspen was the commitment to
historic preservation. Everything in the house is original. I’m committed to keeping it in the
condition it is now if not improving it.
Rick Neiley, representing the owner, said we are not alleging a denial of due process. We
consider the director exceeded her jurisdiction as well as abused her discretion. In this case the
application on a limitation of use on this property does not exist in the code. The use of the
property for single family residence is a use permitted by right in the zone district. If you were to
go in today you would not be able to build 3,306 square feet. It would have to be smaller. The
Regular Meeting Aspen City Council September 9, 2019
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approved FAR would be 2,256. This property was also granted a 500 square foot FAR bonus
when the lot split occurred specifically to allow the existing structure to be used as a residence.
We can’t think of any good reason why it should not be used as a residence. In 1998 it was
being used as a law office. The owner came in and got approval to turn it back into a residence.
The only requirement was to prove you were not subject to growth management or adding
additional floor area ratio. That same criteria occurred in 2004. That criteria no longer exists in
the land use code. It says you have to comply with permitted uses in the zone district. The
code language is not specific as to how the director makes a decision. The reason we got into
the non conforming provision to begin with is all of the regulations lend significant flexibility to
designated buildings. That is what was granted in 2002. What was approved in 2002 is
important to understand. The lot split was approved as well as the 500 square foot bonus.
Ordinance 14 from 2002 states there was a requirement for 2 plat notes. One said the lots
contained therein would be prohibited from further subdivision and any development would
comply with the current code in effect at the time of application. Another plat note stated that
all new development on the lot will conform to the dimensional requirements of the office zone
district except the variances approved by HPC. The second note was intended to tie this
property with the office dimension requirements as they existed in 2002. Staff said the code
changes and gets amended. This doesn’t say it has to contain a plat note that all new
development must comply with the code as amended or as substituted by the MU zone district.
We need to look back at what the code said in 2002 and apply it to today. The other simple
answer from the plat and what happened in 2002 is we know the purpose of the 500 square foot
bonus was to continue to allow residential uses. It has been used as a residence. In 2005
when MU was adopted there was a 20 percent penalty provision. The language for MU says
detached residential and duplex structures established prior to the adoption of ordinance 7,
2005. It does not say residential character of the use rather residential character of the
dwelling. It was established in 1886. In 2004 there was an administrative determination to use
the property for another use permitted in the zone district. We acknowledge there is no
additional FAR being created and it is exempt from GMQS. That is now supposed to invalidate
the ordinance that granted approvals for residential use in the first place. I think you can
expand the definition of established prior to the adoption of ordinance #7 to recognize the
historical uses of this property and not constrain it for a change in use that didn’t go through a
public hearing process. Under non conforming structures it say a non conforming structure
devoted to a use permitted in the zone may be continued in accordance with this chapter.
Historic structures may be extended into the front, side and rear yard setbacks. They may be
enlarged provided it shall not exceed the allowable floor area by more than 500 feet. Right
there we see flexibility. A lot of records listed on the inventory need not meet the minimum lot
requirement of the zone district to allow the uses that are permitted and conditional uses in the
district, subject to standards and procedures. The code recognized you don’t have to have a
minimum lot size to use the property for a permitted use in the zone district. HPC regulations do
the same thing under special considerations. HPC may approve variations set forth in the
requirements of the code. There is flexibility in how you treat historic structures. The use is
specifically preserved on the plat so the dimensional requirements are governed by the zone
district from 2002. In 2005 residential use was a use established at that time. None of the code
provisions say that this creates a non conformity. It is a residence you couldn’t get approved for
the same size if built today but it is not being built today.
Councilwoman Mullins asked when he says there is no reference in the code to limitations on
use or FAR from 2005 is that correct. Mr. Anderson replied that Mr. Neiley is correct that there
is an objection of exceeded jurisdiction. There are several places in the code where we tie FAR
to use. The changes in 2004 were administrative in nature due to being exempt as a non
historic property. There are several places in the code where there are relationships between
free market residential, commercial and lodge where we tie use to floor area. We do it all the
time. We do regularly relate use to floor area. Councilwoman Mullins said in terms of HPC and
Regular Meeting Aspen City Council September 9, 2019
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the designation, if this went back to HPC as a remodel could they grant the variation of 1,200
square feet. Could it go back through HPC and be granted a variation. Ms. Phelan replied HPC
can’t grant that variation. You would also have to designate the property as a PD to vary the
underlying zoning. Councilwoman Mullins said the 500 bonus was built. Mr. Neiley replied it
was not. It is part of the 3,300. Ms. Phelan said in 2004 when it was subdivided there was an
allowance to subdivide a 9,000 square foot lot. A code amendment was changed to allow for
that lot split. When it was subdivided the allowable floor area did not cover the allowance for a
single family home at the time. HPC granted the bonus to make up the difference for the lot. It
made a conforming structure at the time.
Councilman Hauenstein asked are the lots owned by the same people. Mr. Neeley replied no.
Councilwoman Richards asked if the application purchased TDRs would it take care of the
issue. Ms. Phelan stated TDRs are severed form a historic property with the intent of reducing
the amount of development on a lot. A historic property cannot receive additional footage
through a TDR.
Councilwoman Richards asked more about the MU zone that replaced office. What other
properties have come under this. Ms. Phelan said a lot of the code changes that affected the
office zone district now called MU were are result of infill regulations. It looks like the purpose
was to allow for MU development and to not have just single family homes. Councilwoman
Richards said the affordable housing development on Main Street that Fornell did is 100%
residential. Ms. Phelan stated it is also multi family. The allowances for single family and
duplex were ratcheted down. Councilwoman Richards asked if they would convert to a duplex.
Ms. Phelan replied it is usually within a few hundred feet. Mr. Anderson said there is a different
allowance for floor area for affordable housing projects.
Mr. Neiley said what Ben said about regulating uses to floor area does not apply in this case.
The only process you go through to change use in a historic property is growth management
review. The director shall approve, deny or approve with conditions. When you go to the
standards of conversion it says change of use shall be approved, denied or approved with
conditions if no more than one free market residence is created. Ms. Phelan said you could
take it to the extreme if there was a historic lodge 5 times the size it could be turned in to a
single family that is five times the size.
Mr. True said the city has to recognize that this is an unusual situation. It was a residence for
years and then the use changed to commercial. After that there was a change in the code. The
owner has gotten caught in that change of code. Council was limiting and restricting the uses
on Main Street. It was determined at one time the residential uses were going to be restricted.
They are still allowed but restricted. When the change of use was made to commercial it
created a non conformity. Under the code you are creating a nonconformity and that is
inconsistent with our code. The purpose is to address legal non conformities that were created
in the past and now not conforming due to changes in the code. If you disagree with the
interpretation, then that was an abuse of discretion or exceeded the jurisdiction. I believe the
law says in this situation they are asking by changing the use back to residential you are now
creating a non conformity with our code.
Councilwoman Richards asked can council create a nonconformity. Mr. True replied I do not
believe in our code you can create a non conformity. There are a number of ways to make it
legal. There are processes in which you can make it a legally established property. They could
apply for a variance. There could be a PD overlay to establish it and make it legally conforming.
Just a simple change in use in this situation to go back under the established code creates a
non conformity.
Councilwoman Richards said I feel very torn by this decision. I’ve seen it as a residential house.
It is a historic structure. I am not sure that just passing one of these resolutions really moves us
Regular Meeting Aspen City Council September 9, 2019
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forward at all. What I’m wondering is if it would make sense to table this and see if there is a
way to create the path to not make a conforming use. Mr. True said that is one solution, change
the code. There may be something that may be doable and fit in to what this council proposes.
The prior council felt residential uses should be discouraged on main street.
Councilman Mesirow said I wouldn’t be in favor of changing the use. Over time our priorities
change. The last time the community weighed in on this was to limit free market residential. It
is our responsibility to uphold it when the community changes its priorities. To me recognizing
the timeline, the argument hinges on the second plat note and was it intended to be open
ended. If the intention was to keep the use in perpetuity you just say that. The 500 feet was a
band aid. I am going to be a no to overturn this.
Councilman Hauenstein said I don’t believe in one offs. I think if council were to feel we could
make exceptions it could be rezoned. The question tonight is to affirm or reverse the
interpretation. If it were changed to residential it is non conforming. It is designated so we can’t
lop off 20 percent to make it conforming. This property has benefited from the lot split. Even
with the 500 square feet it would be non conforming. I feel the property has to follow what the
zoning is. I would support the resolution affirming the ruling of the director.
Councilwoman Mullins said it looks like and is a residential property. I would like to see it return
to a residential property. I think it is also important to respect what the previous councils have
done. I don’t think we as a council should create a non conformity. I think the director did as
she should have with reviewing this case. On the other hand, Jim gave us some options as to
what could be done. We should look at the code to see if the 20 percent is still valid. There are
options for a PD or a variance. I would like us to explore other options. This is a unique
property. The owner got caught in a tough situation where things changed. I will support the
director’s decision but would like to see exploration of other ways to see this return to a
residence.
Mayor Torre said I do not find the director abused any one of the three. She reinforced what the
code was established for. I’m also in the camp of upholding the director’s interpretation.
Councilman Mesirow said I’m not in favor of any change to the zone district encouraging
residential in the MU zone.
Councilman Hauenstein moved to adopt Resolution #96, Series of 2019 affirming the
interpretation; seconded by Councilwoman Mullins. All in favor, Motion carried.
CML POLICY – City of Aspen Suggested Policy Position Consensus Proposals
Councilwoman Mullins said great job. If any of these go forward will they be expanded to look
more like the CML publication. Tara Nelson, attorney’s office, said we are developing a policy
agenda that is more inclusive. This is just a synopsis in order to meet the deadline of the 11th.
Councilwoman Mullins said the way the meetings work in Denver is they would pull out the
items and we have to stand up and say why. Ms. Nelson said we would love to give you more
information for that.
Councilwoman Richards said if they are accepted by the larger CML group they would become
bullet points in the CML policy statement. Councilwoman Mullins said they will take a vote on
who wants to move forward. Based on how many policies they want to turn in to legislation they
will choose what ones they want to move forward with. Ms. Ott said we may have to find
sponsors on our own.
Regular Meeting Aspen City Council September 9, 2019
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Councilwoman Richards said I fully agree with these. On early childhood funding she suggest a
capital construction fund for early childhood centers.
Councilwoman Mullins said for census funding, is this asking for funding beyond the 6 million.
Ms. Ott said if communities need more than that, it would be a priority. Councilwoman Mullins
said on the water plan some people are thinking the gambling will be sufficient to fund it. Ms.
Ott said the nature of whether it is enough, we have not had an opportunity to evaluate. My
guess is no. Councilwoman Mullins said the policy statement is in support of DD or additional
funding. Ms. Nelson replied we want to have further discussion on how we feel about that.
Senator Donovan asked if we had taken position on that. Councilwoman Mullins asked should
we leave it as supporting DD. Councilwoman Richards said it sounds like we want to support
the plan and DD. As far as additional funding we might want to wait to see if the first passes.
We have already gone on the record for supporting the plan.
Councilman Mesirow asked is this where we add to the bullets. Ms. Nelson replied you may.
He stated the one thing I feel is missing is under economic development is encouraging
programs that support economic justice by helping most those historically economically
disadvantaged by policy. Councilwoman Richards said I’m ok adding that in there now. You
will have to give us examples of what you mean to that. Ms. Ott said staff evaluated those
realities when putting this together. For example this is not a place we discuss oil and gas.
Councilman Hauenstein said under telecommunications does that mean CML supports 5G. Ms.
Ott replied I don’t think they have a position on 5G, it is more broadband access. Councilman
Hauenstein said that’s what 5G is. Mr. True said on telecommunications my understanding is to
do what we have been suggesting to oppose the federal restrictions on our authority to regulate
broadband. The big one subject to discussion is municipal control over rights of way. Ms. Ott
said in terms of process we would look for a motion with the amendments as proposed. Tara
will coordinate the information that needs to get to CML by Wednesday.
Mayor Torre asked when was this position created. Ms. Ott replied there are 3 fellowships
within the organization right now. These opportunities all extend through the end of September.
Councilwoman Mullins moved to accept the recommended policy positions; seconded by
Councilwoman Richards. All in favor, motion carried.
LETTER OF SUPPORT – Solar Energy in Pitkin County
Councilwoman Richards moved to support the letter; seconded by Councilwoman Mullins. All in
favor, motion carried.
EXECUTIVE SESSION
Mr. True recommended council go in to executive session pursuant to C.R.S. 24-6-402(a) the
purchase, acquisition, lease, transfer or sale of any real, personal or other property interests; (b)
conferences with an attorney for the local public body for the purposes of receiving legal advice
on specific legal questions including litigation regarding Centennial and (e) determining
positions relative to matters that may be subject to negotiations, developing strategy for
negotiations and instructing negotiators.
At 8:10 p.m. Councilwoman Richards moved to go in to executive session; seconded by
Councilman Hauenstein. All in favor, motion carried.
At 10:30 p.m. Councilman Hauenstein moved to adjourn; seconded by Councilman Mesirow.
All in favor, motion carried.
Regular Meeting Aspen City Council September 9, 2019
12
Linda Manning
City Clerk