Loading...
HomeMy WebLinkAboutminutes.boa.19850221 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 Vice Chairperson Francis Whitaker called the meeting to order at 4 : 05 p.m. with members Charlie Paterson, Josephine Diann, John Herz, Rick Head, and Anne Austin present. CASE#85-1/CHATEAU SNOW CONDOMINIUM ASSOCIATION Paul Taddune, city attorney, noted this meeting is being held at his suggestion. He had received a telephone call from Whitaker after the last meeting. Whitaker had asked him two questions. First, was the determination by the Board on the Chateau Snow Condominium Association within the Board' s purview. Second, was John Herz qualified to be a board member. Herz has a listing in the Snowmass directory. Whitaker had asked if Herz could sit on the Board of Adjustment since he had changed his residence from the City of Aspen to the Town of Snowmass. Taddune presented his analysis. The Charter requires a person be a resident-elector of the City of Aspen in order to be a member of a permanent board or commission. The elements of a resident- elector are physical presence and an intent to remain in that location permanently. Applying the elements to the facts is not always an easy matter. The city has addressed these elements in prior elections. First, the City of Aspen was challenged for having a three year residency requirement for electors. Second, Council member Dick Knecht was challenged. Research was done to determine what constituted a resident-elector. Defining a resident-elector is difficult. Living conditions in Aspen are difficult. Many transients reside in Aspen. Some people live in Aspen permanently but decide to be resident-electors of other place for income tax or voting reasons. The law is read and is applied so that the intent to remain permanently predominates over physical presence. Someone can leave the area for a couple of months or a year and still be a resident-elector of a particular area. A person can only have one residence. Herz ' s situation was not unknown to Taddune ' s office. Herz had moved about as a result of dissolution proceedings. Herz had talked to Taddune some time ago about his status on the Board. Herz had some difficulty obtaining living accommodations in Aspen. Herz also had talked with Gary Esary, a past assistant city attorney. Esary had construed the same requirements as Taddune and had interjected a reasonable standard of six months. That six month period has expired. Without addressing the issue whether or not the Board was properly constituted in the past, Herz should resign as a member of the Board of Adjustment. The next question was whether or not the Board was properly constituted at the last meeting. Herz was not a qualified member 1 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 of the Board of Adjustment at that meeting and Anne Austin was not present at the meeting . If Austin had been present at that meeting, and if Austin had acted on the matter, then the Board would have been properly constituted to make a decision. Under that scenario, the issue of whether or not the Board was properly constituted would be moot. Taddune addressed the query could the Board make a decision on Chateau Snow as a matter of law. The Board had discretion in the matter. The Board had acted within the Boards purview. One could debate whether or not the decision was arbitrary and capricious. One could debate whether or not the decision was an abusive discretion. That argument can always be made. Taddune had instructed Whitaker to move forward and to reconvene the Board of Adjustment in order to discuss this matter openly. No one should be offended by this action. It is good to get problems out on the table. Whitaker remarked he learned a long time ago that city government must go by the rules. Once government deviates from the rules, problems develop. At the end of the previous meeting Whitaker was in a state of shock. He never had seen the Board fail to follow its own rules of procedure. Whitaker quoted from a document that was prepared and based on the state statutes and the city code: "The Board must make two separate findings to grant a variance. First, the Board must find the applicant has practical difficulties and unnecessary hardships without a reasonable, legal alternative. Second, even if the Board finds practical difficulties or unnecessary hardships it must decide whether to grant the variance on the basis of the factors found in Section 2-22 (d) (1, 2, 3, 4) of the Aspen Municipal Code. " He listed the factors: "l. That the special conditions and circumstances do not result from the actions of the applicant . (Whitaker noted the Board never discussed this during the Chateau Snow proceedings. Only Whitaker had stated that the applicant was creating the leakage problem by not shoveling the snow. ) 2. That special or extraordinary circumstances apply to the subject property that do not apply similarly to other properties in the same vicinity and zone. 2 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 3. The granting of a variance is essential to the enjoyment of a substantial 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. 4. The granting of the variance will not adversely affect the general purpose of the Comprehensive General Plan. " The Board did find a practical difficulty and hardship in the case of Chateau Snow. The Board granted a variance on that finding. But, according to the code and to state law that finding is not sufficient basis to grant a variance. The Board expects people to follow the rules set by the Board. The Board must also follow its own rules. The Board did not follow its own rules during the Chateau Snow proceedings. That is his major concern. The second concern was the Board did not specify the amount of square footage to be increased. The Board did not state it was granting the minimum variance. The Board is required by law to grant the minimum variance. He questioned whether the Board acted properly by making only one finding and by granting the variance on the basis of that one finding. Austin challenged Whitaker ' s interpretation that the Board has to apply all four criteria to each case. The Board in the past has not applied all criteria in granting variances. She understood if one criteria were to apply to a case, then the Board could grant a variance. Austin asked what would not entitle the Board of Adjustment to make a decision on this case. Taddune clarified the two issues. First, if the Board had been properly constituted at the last meeting what would have the decision been. Second, what is the Board of Adjustment ' s authority under the circumstances. The rules and regulations set forth in the code are subject to interpretation. The Board of Adjustment is the body that applies the law to the facts. Under the Municipal Code, the Board is granted a certain amount of discretion to accomplish its purpose. Taddune quoted the code: "Where there are practical difficulties or unnecessary hardships in the way of caring out the strict letter of the zoning laws, passing upon appear- , modify the application of these regulations and provisions relating to the use, construction, or alteration of buildings or structures or use of land, so that the spirit of the ordinance will be 3 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21. 1985 observed, public safety and welfare secured, and substantial justice done. " The Board should apply the standards that Whitaker listed in varying strict application of the zoning laws. It is prudent for the Board of Adjustment to be conservative. Conservative analysis means apply all criteria. However, as a matter of law, the Board has a certain amount of discretion. Bob Hughes, counsel for the applicant, understood the Board functioned to adjust equities when strict application of the zoning code to a specific piece of property was wrong. The Board is invested with discretion to adjust those equities . The standards provide a good barometer for the Board. But , the standards are not the only barometer. He quoted the code: "The following shall be considered valid reasons for granting a variance. " If the statement were to support Whitaker ' s interpretation, the statement would have been constructed to say "and no others. " Other reasons are valid. Many of the standards were met at the previous meeting. An argument could be made that the special circumstances did result from the actions of the applicant. But, the Board did not accept that argument. His client has tried for ten years to solve his problem. His client has failed. Substantial evidence had been introduced that shoveling the snow did not solve the problem. The problem is just as bad in the summertime. Both rain and snow aggravate the problem. The record of the proceedings indicated that evidence was introduced for each of the four points. Those four criteria are not the only criteria to be considered, are good barometers, and are to be observed in most cases. The four criteria are not the absolute benchmarks. Even if the Board does not find evidence of those standards and does not find practical difficulties and unnecessary hardships, the Board can grant the variance. Whitaker articulated his concerns. What happens if the proposed construction does not work? Second, this action sets a precedent that faulty design and construction are bases for granting a variance. The Board usually grants variances on setbacks, on heights, on side yards , etc. Anyone could come forward with the request to enclose a leaky deck. Considering precedent is important . The Board has to adhere to the rules. Whitaker cited again: "Even if the Board finds practical difficulty or unnecessary hardship it must decided whether to grant the variance on 4 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 the basis of the factors in Section 2-22 (d) (1, 2, 3, 4) . " Hughes challenged that statement. That statement is not in the municipal code. Whitaker explained the Board drafted this document which represented the Board ' s guidelines and rules. Hughes argued the lay public follows the municipal code. Hughes addressed the issue of precedent. Granted the Board must be mindful of establishing precedents. But , -each individual application must be judged on its own merits. His client demon- strated a compelling case for a variance. His client demonstrated ten years of futility to correct the problem. If another applicant were to demonstrate a similar case, then the Board should grant that variance also. Do not grant a variance to someone who does not try to correct his problem. Try to identify those points of distinction between precedent-setting cases and non-precedent- setting cases. His client has a compelling case, has a track record of good faith effort to solve the problem without the Board' s assistance, and has come to the Board as a last resort. Granting the variance in this case is prudent and fair. Turn the next applicant down if he cannot demonstrate a compelling case. The Board can deny the next applicant a variance and can argue that the new applicant has not demonstrated the same effort as the Chateau Snow. Whitaker understood Haberman presented a reasonable alternative to the problem. The reasonable alternative was why he denied the variance. Austin argued Haberman would not guarantee his work. Whitaker noted Haberman guaranteed that the flashing would not leak . Hughes interjected Haberman would not guarantee the elimination of water leakage. Mann commented on the four standards. The Board had discussed the standards generally, not specifically, at the February 14th meeting . The important phrase is have substantial justice done. " The Board' s action last week had represented substantial justice. - The- Board had not talked specifically about the four criteria. The Board had failed to state a minimum variance in the motion. Granting a variance without a minimum is her concern. Mann recalled a dialogue several months ago about the specificity of the Board ' s motions. She understood the representations in the record of the proceedings would support the motion, even if the motion were not specific. Whitaker clarified that counsel had directed the Board not to state the reasons to deny or grant a variance in the motion. The minutes document the reasons for the motion. Taddune advised resolutions of approval . The resolution of approval is based on the findings, states the exact variance, and delineates the extent of the variance. 5 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 Whitaker requested Taddune draft a model resolution. Taddune recommended from now on that a resolution of approval be imple- mented. Mann repeated the Board last week had granted substantial justice for this particular case. The Board last week did not set a precedent. She evaluates each case individually and each on the material presented in the packet and at the meeting. Austin commented she had read and reviewed the same section on standards that Whitaker had. She interpreted it differently. The special conditions and circumstances do not result from the actions of the applicant. The architectural design is beyond the control of the applicant. The building is architecturally faulty. She quoted: "special or extraordinary circumstances applied to subject property that do not apply similarly to other properties. " This building is unique. Decks are built over living space, that design is not common. Approval of the variance will not set a precedent. The applicant is being denied a property right . The engineer has stated let the situation continue as is and the building will rot and collapse. The applicant has the right to preserve his property. The drawing is not very attractive. But, the Board does not evaluate design and aesthetics. The applicant has tried for eleven years to remedy the situation with various improvements. The Board should not deny the applicant an entitled right. The structure is nonconforming, but the building was built before the FAR was enacted. The enactment of the FAR regulations was beyond the applicant ' s control also. She would vote to grant the variance. Taddune advised the members to articulate their position on the case as presented today. Have any members changed their February 14th vote. Taddune addressed a query on minimum variance. Taddune understood the Board assumes the minimum variance is implied in the application and in the motion. Austin said that is her interpretation. The applicant is only enclosing existing decks. Head noted the Board was never presented figures to include in the motion. Hughes argued the request is the minimum ; the applicant is enclosing finite, existing space. Bill Drueding, building inspector, understood when the applicant applies for a building permit he will not be allowed FAR beyond the existing deck. The ground level is the problem. How should Drueding handle the ground level ? Enclosing the lower level increases the FAR. The ground level is not a deck area. Taddune asked is the first floor intended to be a living space. Erin 6 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 Hazen, applicant, explained the ground level patio is equivalent to the upstairs decks. She referred to a lengthy discussion in the February 14th minutes about the ground level. The first floor is three feet below ground level. A basement is below the first floor. welling water is a potential problem. Austin asked does the concrete patio extend beyond the decks above. Hazen answered yes. Austin asked does the applicant intend to enclose the concrete area and extend the enclosure beyond the decks above. will trees be cut down? Hazen said the applicant and owners like the 23 trees. The building is not large. The drawing is deceptive. Paterson noted currently snow and water accumulate in the well. The snow and water appear to be draining on their own. The concern is cascading melting snow from two floors above. The snow and water build-up in the well could increase 100% . That is the argument for enclosing the lower floor. He preferred a drainage solution over an enclosure solution. If the Board wants a minimum variance, do not enclose the lower floor. Hughes asked was there substantial discussion at the last meeting about the need to enclose the first floor. Austin noted the minutes indicated a discussion about the drainage problem. Paterson recalled he had asked at the last meeting whether the lower floor could or could not be enclosed. He recalled the answer had been drainage was a problem, the door sill was only 1/2 inch above the concrete, and the well was three feet deep. Whitaker asked how will the applicant solve the problem of the entrance and drainage at ground level. The Board and applicant discussed this. Mann asked were the variance to include the word "minimum" would that assist the building department. Drueding replied yes. But, the Board is granting the variance based on the representations of the perspective rendering. Drueding understood he has to implement the rendering. He understood the variance covers the two decks on the upper floors and the patio of the first floor. The patio protrudes beyond the upper decks. The applicant could have presented the exact square footage and a plan of the first floor . The applicant could have been more specific. But, the applicant only presented the rendering. The rendering is part of the record. The Board has accepted the rendering . If the applicant fails to present a similar plan for the building permit he will direct the applicant back to the Board of Adjustment for further clarification. Hughes asked would the applicant have to return to the Board if he were to present to the building department a building plan 7 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21. 1985 less intense than the original plan. Could the building department issue a building permit for a less intensive building plan without the Board' s approval? Drueding answered if the plan were less intense he would issue the permit. Hughes emphasized the applicant will try to produce a less intense design. Everyone has agreed the rendered design is offensive. The applicant wants to subdue the design. If the Board were to grant a variance for the proposal presented in the perspective drawing, the applicant would not have to return to the Board for approval, Drueding would simply grant the building permit outright. Taddune reported a telephone call with E. Hazen on the day following February 14th meeting. During that phone call E. Hazen had expressed that she was to meet with the architect and to discuss the best way to render the solution. She had mentioned that rendering was only the first attempt. E. Hazen repeated she does not like the design presented in the rendering. The construc- tion company drafted the drawing. No one likes the design. The rendering does not delineate trees. The building as rendered appears as a skyscraper. The building really is very small. Austin noted no one will see the lower floor, the lower floor is obscured by trees. whether the lower floor is glassed in is not important . The real consideration is the snow build-up. She believed if the lower floor were not glassed in there would be substantial snow accumulation in front of the door. Mann again asked would square footage assist the building inspec- tor. Drueding replied square footage and elevations to scale would be helpful. Austin asked what will the applicant do with the outside stairs. The stairs terminate at an unopened, enclosed glass structure. Paterson mentioned the stairs lead no where. The fire regulations may require the stairs for a fire exit. The steps are located on either side of the building. Austin suggested a glass door. Hughes directed his client to supply the building inspector the square footage of the enclosed area. Enclosing the decks in- creases the floor area ratio. He advised the Board grant the variance with a statement that defines the square footage not be greater than the extension of glass from the existing balconies. The building inspector can then double check the square footage for the building permit. Taddune argued the building inspector would check the square footage any way. Austin asked why does the Board need the square footage to grant the variance, the Board is only granting a variance to cover the existing deck. Drueding said he cannot determine the exact square footage from 8 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21. 1985 the rendering. The information on the rendering is minimal. He needs the square footage of the existing upper deck, the second deck, and first floor patio. Is he only to allow the enclosure of the first floor to extend as far as the upper decks? The rendering illustrates the first floor extending beyond the upper decks. Head noted all this information would be on the condominium plat. Drueding emphasized the Board approved the variance at the last meeting based on the representations in the rendering. Paterson argued the first floor enclosure has to extend to the existing concrete wall. Drueding asked is the Board using this rendering to determine its variance. This rendering was part of the record. The Board did approve earlier the variance as defined by the rendering. He requested specifics. Hughes said the applicant can provide the calculations. Drueding again asked for clarification, is the lower level being enclosed and how far is the enclosure to extend. Hughes remarked the enclosure will probably follow the contours of the existing footprint of the building. Taddune summarized the minimum variance is implied. The existing decks are intended to be enclosed. If there is a problem of extension beyond the existing decks, Drueding can return to the Board for clarification of intent. Mann argued the variance approved at the previous meeting stated "enclosing decks. " The variance did not say anything about the patio. Hazen clarified "deck" is the same as "pat-io. "' Taddune explained under the code the Board has to grant the minimum. Minimum variance is a commandment for the Board, whether or not the Board states the minimum variance in the motion. The Board has no authority to grant anything but a minimum variance. Whitaker asked is it necessary to enclose the first floor in order to solve the drainage problem. Hughes replied the record of proceedings from the earlier meeting had supported the contention it was important to enclose z.,. st floor. The structural engineer should answer this question. Whitaker requested this question be answered. Hughes replied the question had been sufficiently answered in the previous meeting. Whitaker asked is the well below grade. Paterson answered yes. The well is 2-1/2 feet below grade. Review page seven of the February 14th minutes. Head asked what if the Board overturns the previous decision. Taddune answered it is premature to answer that question. He needs to poll the Board first for a new determination. The questions, such as minimum variance, have been answered and the Board can make a clearer decision at this time. Taddune asked has anyone changed his position from last week . The Board members did not change their positions. Taddune summarized the 9 RECORD OF PROCEEDINGS Special Meeting Board of Adjustment February 21, 1985 Board' s accomplishments today: the Board delineated the decision, the Board learned about the proper qualifications of Board members, the meeting was productive, and he commended everyone for attending and working through the problem. He directed Herz to tender his resignation. Herz apologized for the problems he had caused. He tried to be upfront with everyone. This is his sixth year on the Board. He did approach Esary and Taddune on the residency issue. He has respected Whitaker for years. He is a customer of Whitaker ' s, he has asked Whitaker to speak at the Rotary, and he has invited Whitaker to his house for dinner. He was upset with the manner in which this entire situation came about. Clearly, Whitaker had been upset with the decision. He hoped Whitaker had not used Herz ' s residency as a tool to challenge the Chateau Snow decision. Whitaker replied that was not the case. He had tried to call Herz after the last meeting and then had discovered Herz ' s Snowmass listing in the telephone book. Taddune clarified the official vote affirms the earlier decision on Chateau Snow; only Whitaker opposes the motion. The variance is granted along the lines discussed in this meeting. Whitaker adjourned the meeting at 5:00 p.m. ,��rd�r� �vrr�h Barbara Norris, Deputy City Clerk 10