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HomeMy WebLinkAboutminutes.boa.19840802 CITY OF ASPEN BOARD OF ADJUSTMENT August 2, 1984 City Council Chambers 4:00 p.m. AGENDA 17 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 Chairman Remo Lavagnino called the meeting to order at 4 : 04 p. m. with members Charlie Paterson, Josephine Hann, Join Herz, Rick Head, and Anne Austin present. CASE #84-15. DURANT MALL CONDO ASSOCIATION Lavagnino introduced the case : the owner is the Durant Mall Condo Association and the location is 710 East Durant . The variance requested is : "The building department records indicate that the existing building currently exceeds its FAR thus causing this to be a nonconforming structure . Section 24-13 .3 (a) : no such nonconforming structure may be enlarged or altered in a way which increases its nonconformity. The applicant appears to be requesting a FAR increase and an open space decrease of 40 . 5 feet . The building is located in the nc zone district. " Larry Yaw, representative for the applicant and architect for the original building, presented an affidavit on posting the public notice. Yaw said at the time the building was built the FAR was 2 : 1; since then the FAR has been reduced. The building is therefore nonconforming. He presented building elevations from Durant Street. He points out the Butcher Block Building and the property line . The owner ' s request is to put in a cooling system. There is an existing door and stair tower near the proposed site of the cooling system. The owner wants a four foot overhang extension for the purpose of housing the equipment for the cooling system. The system requires drainage , air , and ducting access . The design is architecturally compatible with its surroundings . There is no other place to locate and internalize the equipment without legal violations; the stairwell is too tight and ducting violates the integrity of the two-hour lot line wall . Projecting the extension downward violates FAR. The overhang is supported by a wing wall . The structure will protect a currently unprotected doorway and will not actually impose itself on the open space. The structure is a lid rather than a shear wall . The violation of the usability of the open space is an accident. The major open space is between this building and City rlarket. There is really no other place to site the equipment. The variance is for an extension of a four foot projection. There is a two hour wall on the lot side. Drueding said the construction would rleet building code specifications. Lavagnino asked about the post. Yaw said the post is heavy timber and meets setback requirements . Austin asked if the design is similar to a balcony. Yaw answered yes. He proceeded to show the plans . He indicated the line of the building above, the undercover walkway, the line of the windows , and the doorway RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2, 1984 with an existing wing wall. It was after the contractor proceeded with construction that construction was red tagged. It is the new roof construction that violates open space and FAR. The law projects invisible lines from the roof downward. The lines intersect the open space and violates the FAR. Paterson asked if the duct will be inside and covered. Yaw answered yes. Lavagnino asked if the duct work is calculated in the FAR figures and for the 40 .6 feet variance request. Michael Licht, represen- tative for the applicant , answered no . Drueding explained mechanical space is exempt from FAR but mechanical equipment is not. Lavagnino asked if the air conditioner unit is counted in FAR while the duct work to it is not. Drueding said shafts and courtyards are exempt. Head asked which units will the cooling system service. Yaw replied the entire second floor. Head then asked what is the future of the air conditioning for the third floor units. Yaw explained the flat roof could be used with direct access. Drueding commented that equipment can be set on top of the roof without increasing the FAR. when the equipment extends beyond the footprint then the FAR, is affected. Austin asked why the cooling system for the second story could not be located on the roof. Yaw explained there is no outside ,:all which would allow access between the second story and the roof. The current duct work will pass through the second floor of a three story building. The duct work cannot be built downward because the applicant does not own the third floor. Denny Redbrook , representative for the Chateau Chaumont and the Chateau Du Mont owners, asked how long the air conditioner unit has been in place. Licht answered the unit has been there three weeks. Redbrook said the primary concern is the noise level . Yaw assured him that noise would not be audible in the Durant Mall much less across the street. The system is a refrigerating unit . Redbrook asked the size (referring to tonnage) of the unit. Yaw did not have the figures. Redbrook expressed concern about the noise level and about its effect on the residents across the street. The neighbors do open windows. If the apparatus is noisy it may disturb the residents. The size of the unit will determine the noise level , the larger the unit the greater the noise . Yaw disagreed . The system will be 50 decibels less than street noise. Licht said Le Gourmet has a similar cooling system, the noise is minimal . Yaw said any noise that would affect Durant Condo would excessively affect the occupants of the Durant Nall building. Lavagnino asked if outside air is needed for the system. How is air provided for the system when it is enclosed? Yaw said with small grills. Lavagnino suggested insulating, the interior of the structure with sounding material . Yaw emphasized noise is not a problem. Condition the variance approval so that the acoustics are satisfactorily addressed. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 Head asked if the system will be provided enough air. Yaw said the design provides a way for air to get in the void. Mann listed the hardships: 1 . The building is now nonconforming because the FAR was changed after the building was built. (Yaw noted that there was a scant 100 feet of FAR left under the original approval. ) 2. The occupants asked for a cooling system because of overheating problems. There is no other place that the system can be located for the second floor occupants. 3 . The structure does not affect open space because the open space is between the two sections of the building. Yaw noted the building has never operated under a variance before. Lavagnino asked if each unit could have an individual system. Licht explained there are some offices on the second floor along the exterior walls of the building and some offices not connected to the exterior walls. It would be possible to furnish those inside offices with a system but not very practical. There would be a problem creating ducts. Head asked if there would be enough space for the equipment and circulation for air in the basement . Yaw explained there is no duct path to the basement. Remember the building is a condominium and the applicant does not own the first level. The duct system would trespass on the ownership of others. There is a roof ventilation system for the third floor. The present proposal accommodates the second floor, but Lavagnino asked how would the first floor be cooled. Yaw said the first floor is back some seven feet, there is an overhang which creates a shady pedestrian walkway. Lavagnino closed the public hearing. Josephine Mann moved to grant the variance of 40 .5 square feet of additional FAR on the basis of the following hardships and practical difficulties : 1 . There is a need for a cooling system and because of the nature of the building 's condominiumization there is no other place to locate the system except in the proposed corner. 2. There is a need for access to outside air. Some of the units of the second story are completely enclosed inside and there would not be access to inner offices for individual cooling systems unless there was extensive duct work. That level of duct work would be impractical. 3 . The proposal does not violate the spirit of the compre- RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 hensive plan. The motion is seconded by Charlie Paterson. All in favor ; motion carried. CASE X84-16, CLARK AND KASPAR COMMERCE REALTY CORP /UTE CITY PLACE-EMPLOYEE HOUSING Lavagnino- introduced case #84-16 : the owners are C.M. Clark and Alexander Kaspar; and the location is 909-923 East Cooper Street. The variance requested is: "The property is located in the R/MF zone district. Section 24-3 . 4 : area and bulk requirements. Maximum height in the R/MF zone is 25 feet . The applicant appears to be requesting a 3 foot height variance to a maximum building height of 28 feet. " Chuck Brandt is the attorney and representative for the applicant. The applicant is Commerce Savings, the contract buyers for the property and the group behind the Aspen Mountain Lodge project. He presented some aerial photographs of the site. He oriented the Board to the property' s location. The property is on Cooper Street before the Roaring Fork River . (Brandt presented the affidavit of posting the public notice. ) Brandt presented an outline of his presentation. The current height limitation is 25 feet for this zone district. The request is for a three foot height variance. In 1981 , the current property owners, Butch Clark and Alexander Kaspar, filed and received a growth management plan allocation to construct a twenty-two unit building consisting of eight free market units and fourteen price restricted employee units. Subsequently, they received conceptual and preliminary subdivision approval to rezone the property from RIMF to R/MF-RBO to accommodate the -employee housing. Late in 1981 , because of the concerns of the residents of the Shadow Mountain area about the size of the single family and duplex structures being built, the city adopted a moratorium on the R/MF zone district. However, the city in 1981 granted the Ute City Place application an exemption from that moratorium allowing it to proceed through the GI•IP/sub- division process . In September, 1981 , the city granted final subdivision approval to the project. Following the final approval final plans and specifications where submitted to the city for a building permit. Because of the interplay of the moratorium in 1981 with the appli- cation ' s exemption and the city' s consideration of lowering the height limitation in the R/ ,IF zone from 28 feet to 25 feet, the owner did not proceed for a building permit and the time limitation elapsed. In this interim in 1982 the height limitation for the RIMF zone was reduced from 28 feet to 25 feet and the RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 owners had problems with their building permit application . However , in February, 1984 , the owners requested and obtained from the city an additional 180 days to obtain a building permit for the property. That building permit is still for a 22 unit structure with the eight free market units and 14 price restricted built at a height of 28 feet. His client entered the picture in June, 1984 . His client signed a contract to buy the property. The contract is conditioned upon the ability to convert the eight free market units to eight price restricted units, yielding a project containing 22 employee units. The contract is conditioned upon obtaining the variance that Brandt is asking the Board for today and further conditioned upon the ultimate approval of the Aspen Mountain Lodge project. If the hotel is not approved the Ute City Place, which is only one of several proposals for employee housing, would not be necessary. His client' s option to buy the Ute City Place project expires October 1, 1984 . On June 22, 1984, a new application for this property was filed. The application requested conceptual subdivision, RBO rezoning , an exemption from GMP for a 100% employee housing project, and special review consideration for reduction of the open space . The reason an application was required for an existing approved property was determined by the planning office. Planning determined that Commerce Savings could not simply amend the existing approved GMP allocation and subdivision approval for the 22 unit project for the conversion of a 22 employee unit project. The planning office reasoned that there was an approved project with eight free market units that had to compete through the G11P allocation process. To amend out the eight free market units and convert the units to price restricted units eliminated the GPZP application. The planning office determined one could not amend out the GP-IP component . Pursuant to that interpretation, his client filed this application. The other components of the subdivision appli- cation are considerations of the open space reduction and the RBO rezoning. The planning office ' s interpretation is critical to this variance application. His client cannot ride on the shirttails of the already approved application and cannot amend the application to convert the eight free market units. If his client was allowed to do that his client would enjoy the benefits that the current owners enjoyed, namely to build a project 28 feet high. The original application predated the zoning height change from 28 to 25 feet. Brandt listed on page four the reasons why his client could not simply amend the existing application and why his client had to file a separate application for Gr1P consideration for the employee housing units, for the FAR, consideration, and for the exemption for the employee housing units. Brandt referred to architectural drawings: the footprint of the C RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 project, south and north elevations, east and �.,7est elevations , the original building outline with the eight free market units; and the proposed building outline with 22 employee units . To meet the housing authority' s guidelines for square footage for moderately priced restricted employee units, the building becomes slightly smaller . The intent of the application is to reduce the size of the footprint and to convert the eight free market units to eight more employee housing units. There are practical difficulties. The 25 foot height limitation is the result of an interpretation that the approved application for Ute City Place cannot be amended to permit the purchasers the ability to modify the project to a 100% price restricted pro- jected. And yet, the present owners can in fact develop and construct the free market and employee project at 28 feet. On July 31st, Ute City Place received a building permit. If Commerce Savings is not successful in meeting these conditions and obtaining the variance and the hotel approval, Commerce Savings will not build the project. Instead, the project will be built at 28 feet with the eight free market units as opposed to 100% employee units. Reviewing the Board ' s powers under the city code , the Board has the authority to modify the zoning code. In this case three feet can be accommodated for the rather unique set of circumstances in which the zoning code allows one project to be developed at 28 feet but not a more beneficial project . One of the Board ' s criteria is that circumstances do not result from the actions of the applicant. The current circumstances result from the inability of the existing code provisions and the planning office' s inter- pretations of the code provisions to amend a prior application and construct an employee housing project under the 28 foot height limitation . Special and extraordinary circumstances do apply to this property and not similarly to other properties in the same vicinity and zone. The best evidence is that the building permit was just issued to build the 28 foot high structure. Lavagnino disagreed with this argument. If other people in the same vicinity and zone enjoyed the 28 foot height limits and the applicant was denied that right, then they would have an extraor- dinary circumstance. Are there other buildings in the vicinity 28 feet high? Brandt hired Jim Weeser of Alpine Survey to shoot a couple of buildings : Chateau Roaring Fork is 31 feet , the Victorian apartments across the street are 36 feet (to the highest peak) . Lavagnino noted the height is not measured to the peak. Brandt agreed but what he considered was the impact on the neighborhood in granting a variance for 100% employee housing at 28 feet with a flat roof. Lavagnino asked if the other remaining buildings meet the 25 foot height requirement. Brandt responded he did not direct Alpine Survey to do that extensive of field work. For example, the Riverside Condominiums were not shot. But the Old One Hundred Condominiums are at 27 feet, which are south and across the alley. There is a corner building at 23 feet. The Chateau Roaring Fork was built ten years ago, the Durant Apartments RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 were built five years ago. Sunny Vann, planning office, remarked there has been no construction in the vicinity since the adoption of the reduced height. Brandt contended that granting the variance would not adversely affect the general purpose of the general plan. The packet contains a letter and a resolution supporting the application: the former from the Pitkin County Housing Authority, the later from the city planning and zoning commission. The Commission reasoned the conversion from a mixed free market employee housing project to an 100% deed restricted employee housing was in the best interest of the city. Brandt said other architectural solutions to this problem were considered. The building as proposed is a four floor building with the first floor at garden level. His client even considered lowering the floor to ceiling height for each floor. The uniform building code requires a minimum floor to ceiling height of 7 ' - 6 If the current heights were reduced on the four floors, only 7 ' -6 " would be saved; 71 -6" subtracted from 271 -8" totals 27 ' - 6". His client prefers not to build at the minimum because that creates a smaller , less desirable unit . It is not feasible architecturally to put the building in the ground three more feet. Presently the building is already in the ground eight or nine feet. To sink the building further would make the first level units dark and undesirable and not compatible with the spirit of housing. Brandt summarized the hardships on the last page of his outline. A forced solution would be to eliminate the top floor and build a three story building. Commerce Savings would not have an interest in the project at that point because the hotel would be short six employee units. If Commerce Savings does not buy the project Butch Clark could then exercise his right under the building permit to build a building 28 feet high with the eight free market units . The hardship is that his client cannot do what the existing property owner can do with respect to constructing the project. The Board has the power under such circumstances to grant a height variance to accomplish an increase in employee housing for the benefit of the community. The public benefit is a reason for the Board to grant a variance besides the unique interplay of circumstances and the inability to amend the application. Vann commented that what is occurring here happens from time to time that is a real problem for the planning office. It is a situation of triumph of technique over substance. Technically, this is a new application since the removal of free market units no longer warrants the G11P application. Technically, since it is a new application it must comply with the regulations in effect at the time the application is submitted. In reality the two projects are the same with the exception that the units have been reduced in size and the units are 10010 deed restricted employee housing. The deer-] restrictions for employee housing and the approvals for the exemption from growth management will probably RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 be approved because the present proposal is better than the earlier proposal. There is no other alternative from the methodology other than for the owner to build it in its less desirable format and for the applicant to purchase it and deed restrict it to employee housing. This solution is not in the best interest of the community at large or to the applicant. The cleanest way to deal with this is to recognize that the circumstances were beyond the applicant ' s control. It was the clear intent of Council to exempt the project in this current form from the moratorium on height. This application is a conti- nuation of that same project although modified slightly to improve the size. The applicant comes forward for a variance because the applicant proposes to deed restrict the eight free market units to employee units . This does constitute a hardship under the intent and spirit of the regulations. Vann encouraged the applicant to proceed for a variance. In the absence of a variance, Vann will have to sit down with the city attorney and think up another approach to resolve this problem. Clearly the amendments being proposed are in the best interest of both the applicant and the city. Lavagnino asked if the net gain for the city is actually eight employee housing units. Vann answered yes plus a reduction in the size of the project . Lavagnino said these units are being applied to the hotel ' s requirement of employee housing. In effect , the city is losing fourteen employee housing units which would have been built independently of the hotel' s require- ment. Instead of having 114 units the city will have only 100 . Vann responded that the eight free market units are being offset with the employee units. The demand created by the hotel is being met with this project. Lavagnino reasoned the demand would have been met any way somewhere else , therefore , the city is not gaining anything in terms of this particular project. The hotel still has to meet their employee housing requirements. Head asked if the Board would prefer to see the hotel locate housing down- valley. Lavagnino asked if the hotel can locate housing outside the city limits. Brandt replied yes. Vann explained that the GrIP regulations recognize the problem of meeting employee housing requirements within the city limits. There are very few sites on which one can construct without everyone complaining about employee housing being built in their backyard. Recognizing that problem, it was determined that a developer could construct or deed restrict housing in the "metro" area or outside the city limits provided that transportation, etc. , was dealt with. Eight free market units are lost , and fourteen employee units are gained ; from a balance sheet point of view fourteen units are lost. Lavagnino asked if the Board can modify the zoning code. Barry Edwards, city attorney, said the Board can grant variances from the zoning code on a case by case basis. The Board does have the authority to do what is being requested here. n RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 Head asked what happens to the eight free market units if they are replaced by the employee units . Vann said if the applicant is successful in obtaining the variance and in acquiring the property, then a condition for granting the applicant an exemption from growth management for 100% deed restricted project would be that the eight free market units be relinquished and returned to the pool. Someone else would then be able to use the quota and build with the provision of providing employee housing. Brandt noted the 22 units would house 37 employees. Lavagnino suggested leaving the project at is original size to give employees more living space. He also suggested build 26 units instead of 22 . Vann said the applicant is already at maximum density in terms of number of units. The employee housing guidelines specify the maximum size employee units for which one can charge rent. One could build a larger unit but the additional square footage cannot be charged for . The square footage guidelines are set to provide a reasonable living space and to provide the developer the ability to recoup part of the cost of providing the units. It would be onerous to insist that the developer provide a substantially larger unit. Under the RBO provisions the applicant is at maximum density for the site. The number of units is a function of the area not of the square footage. Vann continued. The reduction of the height in the R/1,1,F zone from 28 feet to 25 feet was a last minute addition to the ordi- nance. Neighborhoods affected by the large duplexes and the neighborhoods being considered for FAR reductions included R/MF zoning, Shadow Mountain is a good example. The concern was the parcel sitting adjacent to R/MF would be three feet lower . For consistency there should be the same height limitations throughout an area with multiple zones. It was never considered that other homogeneous RPIP or L-2 areas would experience reduced building heights. 28 feet is not out of line in some of the other R/MF and L-2 zone districts. It was believed that this application was an improvement over the earlier approval. But, in reviewing the application the planning office discovered the reduction in height. The technical problem, is this application is interpreted as a new application. Since the prior approval could not be amended this application has to comply with the present code . There may be future problems over restrictive height with other projects. There have been no multi family developments in the city for several years. The height is not what has held back development, the market conditions have. Hann remembered there was an application in the same neighborhood requesting a height variance and the Board denied it. Brandt said that was probably the Spence Schiffer application in behalf of Hans Cantrup on 935 East Durant Street. He located that property on the map. Mann asked what is the proximity of the two projects and what is the relationship, if any, between the two RECORD OF PROCEEDING Regular meeting Board of Adjustment August 2. 1984 projects. Vann said the distinction is that if -a new project came in today requesting a variation from the underlying height the planning office would not support the variation at this time. But before the Board today is a project which will be built at 28 feet regardless of the Board' s determination. Brandt reviewed the Schiffer case. He summarized the basis for denying the variance. The individual comments were as follows : Fred Smith said "most delays were resultant from the applicant 's attempt to build more units. . . architectural remedies may exist; " Charlie Paterson said "there is a hardship if the building is to be built at two different levels and he would support l ' -G" variance ; " Francis Whitaker said "the applicant is asking for 24 units on 12 , 000 square feet . . . the — has 22 units on 15,000 square feet. . . he thought the project should have been redesigned to meet the code requirements ; " John Herz said "he would have been in favor of a variance if the delays were the result of governmental action ; " and Remo Lavagnino said "the chronology of events did appear to be a burden. " The vote was three to two against. The minutes are dated July 22, 1982, case 1, 82-7 . Herz asked if it is feasible to build the building into the ground three more feet. Brandt said this would result in a building of undesirable use. Lavagnino closed the public hearing. Mann does not like tall structures. But in this case it seems that in order to reduce the mass she would have to vote for the variance. Lavagnino reminded her that the key is that someone is going to build 28 feet anyway. Paterson said the case is clear cut. If the Board is considering the city's best interest then it has to vote for the variance. Head shared Plann ' s and Paterson ' s comments . fie would favor this variance for a number of reasons not the least of which are the letters in support of the proposal from the Commission and the housing authority. Also he favors reducing the mass and favors providing eight additional units of employee housing. The tradeoff is well worth the height variance. He favors anything that helps move the hotel project along. Austin agreed with the previous comments. Herz would favor the variance. Lavagnino did not agree that the city is gaining eight employee units. The employee units are simply being reallocated to another project . He did not agree with the argument that the conversion of the units benefits the city. Lavagnino acknowledged for the record the receipt of a letter from Jim Adams1ki, director of" 'L-1),- Pitkin County Housing Authority, RECORD OF PROCEEDING Regular Meeting Board of Adjustment August 2. 1984 and a resolution (�1- 84-8`) frorl, the city planning and zoning commission both supporting the height variance. He also read a I letter from Ceorge Randall, President of the Board of 1,11ancagers for the Old Hundred Condominium Association, dated July 26, 1984: "The Old Hundred Condominiums are located at 900 East Durant, across the street and a short distance west of the Property for which variance is requested. The Association is opposed to the three foot height increase for the following reasons. Any height increase would restrict the view of the mountains to the south and east from the Old Hundred apartments and thus reduce their attractiveness and value. The higher the buildings along Aspen streets the more the residents and visitors are confined to urban canyons and . denied the full daily enjoyment of the Roaring Fork Valley. In general, only variances that benefit the community in some way should be granted, and those that benefit only the owner for his pleasure or profit should be denied. " Lavagnino commented that the letter answers its own question that the only variance that benefits the community should be granted. It is probably the feeling of the Board that this is one project which benefits the community. Paterson noted that the letter refers to a restriction in the south and east view, but the Proposed project is northwest of the Old Hundred Condominium. Head noted the Old Hundred building is also 27 feet high. Charlie Paterson moved to grant a three foot height variance to a maximum building height of 28 feet. There are extraordinary circumstances that apply to said property which do not apply similarly to other properties in the same vicinity and zone . There is no other property in the R/MF zone or area that has a building permit for construction of a building 28 feet in height. The hardships are: 1 . On June 22 , 1984, a new conceptual subdivision application was submitted by Commerce Savings requesting RBO rezoning, exemption from PUD for 100% employee housing, and special review considerations for the reduction in the open space . The hardship is that the previous applicant (hark) had a right to build to 28 feet, and yet, because the present application (Commerce Savings ) altered the project to a 10010 employee housing , the present application had to be treated as a new application and therefore the right of Clark ' s proposal to build to a 28 foot height was not assumable. 2 . Other buildings in the same vicinity and zone are more than 28 feet in height. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 3 . The granting of the variance would not adversely affect the general purpose of the comprehensive plan with the reduction in the FAR requirement. The motion is seconded by Rick 'lead. Discussion . Lavagnino suggested removing number two. He does not want that as a catchall phrase in granting a variance that others might latch onto. Mann said so what if the other buildings are higher . She also suggested including in number three a recognition that the director of the housing authority and the Commission have recommended this height variance. That is why the Board can say the proposal is not violating the general plan and the proposal is in the best interest of the community. Charlie Paterson moved to amend the motion to read: "The Board moves to grant a three foot height variance to a maximum building height of 28 feet. There are extra- ordinary circumstances that apply to said property which do not apply similarly to other properties in the same vicinity and zone. There is no other property in the R/MF zone or area that has a building permit for construction of a building 28 feet in height. The hardships are : 1 . On June 22 , 1984, a new conceptual subdivision application was submitted by Commerce Savings requesting RBO rezoning, exemption from PUD for 100% employee housing, and special review considerations for the reduction in the open space . The hardship is that the previous applicant (Clark) had a right to build to 20 feet, and yet, because the present application (Commerce Savings ) altered the project to a 100% employee housing , the present application had to be treated as a new application and therefore the right of Clark ' s proposal to build to a 2€3 foot height was not assumable. 2. The granting of the variance would not adversely affect the general purpose of the comprehensive plan with the reduction in the FAR, requirement . The director of the housing authority and the city planning and zoning commission have recommended this height variance. That is why the Board can say the proposal is not violating the general plan. The proposal is in the best interest of the community. The amended motion is seconded by Rick Bead. All in favor ; motion carried. Drueding assured the Board the applicant is bound by the represen- tations that he has made to the planning and zoning commission. CASE #84-17. LEE PARDEE RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 Lavagnino introduced case -Ir04-17, applicant Lee Pardee, location 701 Gibson Avenue. Fie read the variance requested: "Property is located in the R-30 zoning category. Section 24-3 . 7 (c ) : fences , hedges, or walls shall be permitted provided that they do not exceed above grade. Fences visible from the street shall be constructed of wood, stone, wrought iron, or masonry. Applicant appears to be requesting to build a "chain link" tennis court fence over six feet -in height within the setbacks. " Gideon Kaufman, representative for the applicant, presented an affidavit on posting the public notice and a photograph. Fiaufman made the presentation. The reason his client is here today is because of a gap in the code which creates a hardship and practical difficulty for his client . The city code does not address itself at all to tennis courts . The code addresses specifically hedges , walls , or fences which are intended to surround property. The code is silent as to tennis courts. The omission effectively prevents building the traditional chain link fence that surrounds tennis courts. This is the first tennis court in town being asked to seek a variance. His client is not seeking any kind of setback variance. The request is only for a chain link fence at a height of ten feet as opposed to six feet. He submitted into the record letters of support from neighbors: R. Gillman, J.R. Wedum, and P. H. Roberts. One neighbor is the city of Aspen and they are not in a position to submit a letter . Lavagnino asked if the tennis court is for the overall enjoyment of the neighbors . Pardee replied he has agreed in writing to allow the Hill House, a neighbor , and himself to use the court . Lavagnino asked if the neighbors supporting the fence would be using the court. Pardee answered yes. Kaufman said this tennis court has been discussed at many meetings. The city planning and zoning commission through specific stream margin review allowed the construction of the tennis court. Council agreed to a lot line adjustment predicated on the ability to build a tennis court. With the various meetings with this Board on the building envelope , the tennis court was always mentioned as being built at this particular location. It is important to note that different kinds of fencing could be put around the tennis court. A cinder block wall could be built. But that would not meet the intentions of his client . His client wants to construct a traditional tennis fence which everyone else in town has . It would be insensitive to build a giant cinder block wall or fence wall . Fie suggested the code be addressed as to direction of building a tennis court so people in the future would not have to core before the Doard seeking a variance. RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment August 2. 1984 Drueding explained walls up to 25 feet high are allowed as long as the wall is within the setback and is an accessory use. Kaufman said his client clearly does not want to build that kind of wall . Austin asked how the tennis court borders the street. Pardee said the width_ not the length of the court parallels the street. Austin noted courts in the west - end have high - fencing -on the narrow ends and lower fencing on the length of the court. Lavagnino asked if the tennis court could have been put in if the property trade had not occurred. Pardee explained he had from IvIedum an easement from the old lot for six years. Lavagnino asked if an accessory building can encroach on someone else ' s lot . Drueding explained no one can build an accessory use in someone else' s easement. Drueding does allow six foot fences to encroach onto easements but issues the permit at the applicant ' s own risk. Structures are not permitted in the easement . He would not allow Pardee to build a ten foot fence without a variance. Lavagnino asked if the Board can allow someone to build an accessory building into someone else ' s property. Lavagnino requested the color of the fence be considered. Pardee said the fence would be green on green. The fence will be the same as the Aspen Club : chain link fence galvanized with a green nylon mesh material. Rick Head moved to approve a variance to build a chain lint: tennis court fence limited to ten feet. The practical difficulty is that the building code does not address the question of chain lint: fences for tennis courts. He further requested that the city attorney draft an amendment for the present code to incorporate chain link fences and present it to Council for their approval. The motion is seconded by Josephine 14ann. All in favor; motion carried. Charlie Paterson moved to table the approval of the minutes of June 7 and June 14, 1984, to the meeting scheduled for August 23 , 1984; seconded by Rick Head. All in favor; motion carried. Rick Head moved to adjourn the meeting at 5 : 45 p. m. ; seconded by Josephine Mann. All in favor; motion carried. Barbara 11orri.s, Deputy City Clerk