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HomeMy WebLinkAboutminutes.boa.19851024 CITY OF ASPEN BOARD OF ADJUSTMENT OCTOBER 24, 1985 CITY COUNCIL CHAFERS 4:00 P.M. A G E N D A I. MINUTES July 25, 1985 August 1, 1985 August 15, 1985 August 22, 1985 II. NEW BUSINESS Case #85-20 / Fifth Avenue Condominium III. ADJOURNMENT A RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT OCTOBER 24, 1985 Chairman Remo Lavagnino called the meeting to order at 4: 05 p. m. with members Anne Austin, Charlie Paterson, Francis Whitaker, Rick Head, and Ron Erickson present. MINUTES Francis moved to table the minutes until the end of this meeting; Head seconded. All in favor; motion carried. CASE # 85-20 / FIFTH AVENUE CONDOMINIUM Lavagnino read the variance request: "A variance to permit an 8 foot diameter jacuzzi in existing open space. Property is located in the L-2 zoning category (Section 24-3. 4 area and bulk requirements ) requires 25% open space. Applicant is requesting a variance to set a hot tub in the open space, reducing it. Property is already below the 25% minimum open space requirement". Mr. Burdick, applicant's attorney, submitted the affidavit of sign posting. Mr. Ron Garfield, applicant, explained the request noting it was a minimal variance. Mr. Garfield said he understood the situation is not one where they are prevented from using their property but they feel there are practical difficulties involved and hardships in not permitting a jacuzzi in the open space. Mr Garfield is proposing the theme that currently there is not a resort project built, conceived, or designed that does not include a jacuzzi. In our view, a project of this kind in the location we are in, it is like saying we can not have an essential element of the building. In addition, our information indicates that every other project in the neighborhood has a jacuzzi in place now. Mr. Garfield said the Board of Adjustment should have received several letters supporting the request and none in opposition. Lavagnino said the plans indicate that half of a parking space would be replaced somewhere else. It appears that where it is shown to be replaced is already relegated to parking and is very steep. Lavagnino asked what the intentions were to ameliorate that condition so that parking could be available there. Lee Miller , applicant replied when they looked for a location to put the jacuzzi they took half of a flower planter and half of a parking space. Mr. Miller said the space they chose, to replace the lost half space, as it exists is not suitable for parking due to the steepness of the grade. However , we are planning on 1 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT OCTOBER 24, 1985 putting in a railroad tie wall that would allow backfilling and therefore make this a usable parking space. Lavagnino asked what the total area of the proposed deck would be. Mr. Miller replied there would be a redwood deck surrounding the jacuzzi that would be around 200 sq. ft. Whitaker said the application says the property is already below the required 25% open space and asked how much below they were. Lavagnino responded that the building inspector was unavailable, therefore, the answer was unsure. Erickson commented that it was a result of down zoning that caused the deficiency. Head asked if had been determined if a structure that is below 30 inches high interrupts the open space. Whitaker read the definition from the code book. Head commented that the definition was contrary to the suggestion that pools and jacuzzis on open space are minimal , being supported by the Planning Office, and that jacuzzis are consistent with open space. Erickson asked how much of this project would be above grade. Mr. Miller said the top lip of the tub and deck is proposed to be between 18 and 24 inches above the existing ground level. Austin and Whitaker asked about the 4 foot fence surrounding the jacuzzi shown on the plans. Mr. Miller explained that the fence was to provide privacy between the parking area and jacuzzi area. Lavagnino said one of the guidelines for this Board is to give a minimum variance to any request and questioned why this could not be moved closer to the swimming area. Mr. Miller outlined on the plans a location that had been suggested which is closer to the swimming area adding they would find that a satisfactory alternative location. Erickson commented that the alternative location would be less visible. Head asked the applicant why they chose the area presented in the plans. Mr. Miller said they had walked the location with their Board of Managers and the location proposed is the one the managers came up with. Their criteria in choosing a location was #1 to be near the swimming pool , #2 the view from sitting in the pool, and #3 snow plowing accessability. Whitaker commented that the purpose of open space is to prevent structures from covering a whole lot. Whitaker added that he did not think the applicant had presented enough arguments to prove a hardship or practical difficulty that overrides the definition of open space and the requirements. Whitaker still wanted to know what the properties deficiency in open space was at the present time. Mr. Warren, contractor, said he thought since the space is 2 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT OCTOBER 24, 1985 already covered with pavement to add something more attractive would have a better impact. Lavagnino said the Board can not deal with esthetics, only with definition which says this is in violation of open space. Erickson questioned the "Description of Proposed Exception Showing Justification" ( submitted by the applicant) statement in the last sentence of the second paragraph stating the Planning Office indicated the impact of pools and jacuzzis in open space is minimal and consistent with open space. Erickson questioned where that statement came from. Mr. Garfield said it came from planning and zoning minutes of October 16 , 1984 regarding a discussion of open space, quoting Alan Richman. Head asked what application that was in respect to, the reply was the Nugget Lodge. Erickson read "to constitute unnecessary hardship, the hardship complained of must originate in the ordinance and not stem from the action of the applicant. " Erickson commented since this project was built before the code was changed and, therefore, there was no open space requirements beforehand, there is an ordinance that has been passed, being a hardship. Lavagnino asked the City attorney if that was a valid hardship. Whitaker said if the Board granted variances on the grounds that the zoning ordinance has been changed and created a hardship on the applicant we would have to grant variances to everybody. Paul Taddune, city attorney, said the fact that the law has changed is certainly not to be discounted and should be considered but is not the answer by itself. Everybody in the city is affected by the zoning code in one way or another. If the fact that an ordinance itself is sufficient to establish hardship then the variance would have to be granted. Lavagnino closed the public hearing. Erickson said he was against the current proposed location of the jacuzzi because of the visual impact. However, if it were moved to the alternate location there would little _ or no impact on the view. In addition, Mr. Erickson thought this was a minimal impact. Erickson saw a hardship because they are not being given the same property rights that the neighbors have. Lavagnino reopened the public hearing to read letters that have come before the Board stating approval of the requested variance. (The letters are on file) . Lavagnino closed the public hearing after the letters were read. 3 - RECORD OF PROCEEDINGS REGULAR MEETING- BOARD OF ADJUSTMENT OCTOBER 24, 1985 Austin said she was not opposed to allowing the jacuzzi. She thought it was a necessity and what people expect when they come to Aspen. Austin thought the hardship was that the property was built when the zoning for open space was different and jacuzzis were not a vogue item at that time or it probably would have be planned for. Austin thought the alternative location was the better of the two proposed, the deck size a little too large, and the 4 foot fence bothered her. If the jacuzzi were moved to the alternate location she would be in favor of granting the variance. Whitaker said he was not satisfied that he had enough information, not knowing the grade of the elevation, or what ratio 225 sq. ft. - would be to the amount of open space required. Without an answer to those questions Mr. Whitaker would have to vote against the request. Whitaker said he was also very concerned about the four foot fence and does not feel the applicant presented enough hardship to override the basic purpose and intent of the open space requirement. Whitaker was also concerned that the Planning Office had taken the position they did with regard to the open space , adding that until the ordinance is changed this Board should go by the code. Head said he was struggling to find a hardship or practical difficulty in the case. Suddenly amenities are now necessities and whether that fits the Boards guidelines,creating a hardship or practical difficulty, he was having trouble with. Head did think that substantial property rights enjoyed by an adjoining property owners should be considered. Head added that he was leaning toward granting the variance but would like someone to demonstrate the practical difficulties and hardships. He was also leaning heavily toward the remarks made by Alan Richman, with respect to open space. Lavagnino said he was interested in the Planning Office ' s opinion as to the impacts, -what was the intent of the code,- does - this exacerbate the problem and to what extent. Head said he thought the location of the jacuzzi was unimportant, we are discussing the fact the this is encroaching on the open space. Paterson agreed and asked how much more objectionable a fence was than a car parked in the same location. Visually there is something obstructing the space. Paterson said his concern regarding hardship is that it is not really a hardship but on the other hand there are substantial property rights involved which are being enjoyed by others in the same vicinity. Paterson said he thought there was adequate evidence that it becomes a hardship 4 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT OCTOBER 24, 1985 for that reason. Because of the area, the location, and the way the entire property area is being used it becomes a hardship and he would vote for granting the variance. Whitaker asked if Paterson knew if the surrounding properties had adequate open space. Erickson said he was almost certain that Durant Condominiums did not have adequate open space. Whitaker said he did not feel the question of the nature of a jacuzzi was a substantial property right. Paterson said he considered it a minimal request. Head and Erickson said they considered it substantial, with respect to the use. - Erickson said in the lodging business things have changed. Austin commented that the new Aspen Mountain Lodge was going to have several pools and jacuzzis and was curious if that space was considered open space. Lavagnin'o said he was concerned about the visual impact, the fence, and would like to see the jacuzzi moved back to the alternate location. The intent of the ordinance in effect would not be circumvented by having, a jacuzzi there because there is not an obstruction of the view plane. Lavagnino said he was still interested in the Planning Office's opinion because he feels the intent is a consideration in granting a variance. He said he would also like to invoke the City Attorney' s position that the enacted ordinance in this case becomes a hardship. In addition he would like to see the Building Inspector present to get more detailed information. Lavagnino said at this point he would have to vote against the variance. Whitaker said, as he understood, the hardship is because the City Council passed a law requiring open space and there is not enough open space. At the same time whether there is enough open space or not what is the hardship that overrides the prohibition of swimming pools. Erickson said maybe it was not included because at the time the ordinance was passed it was not important enough to put in the code. Erickson added that he thought the code should be amended to address jacuzzis. Lavagnino reopened the public hearing. Mr. Garfield said they would be satisfied to table the application to allow an opportunity for further research. Mr. Garfield said the reality of the situation is that jacuzzis today are not an amenity but an essential element of any recreational facility designed in an tourist accommodation zone. Whitaker told the applicant that if he, the Planning Office, or 5 RECORD OF PROCEEDINGS REGULAR MEETING BOARD OF ADJUSTMENT OCTOBER 24, 1985 the Building Inspector can determine that the City Council considers swimming pools open space he would change his vote. He would like to also see a def inite grade line, and all of the facts if it were to be moved to a different (alternate) location. Motion: Head moved to table Case #85-20 until November 7 , 1985; Paterson seconded. All in favor; motion carried. MINUTES July 25, 1985: Austin corrected the wording of the second paragraph of page 4 , line 11 , changing the last word of the sentence from "yards" to "set backs". Head corrected the word "refer" to read "deferred" on page 5, fifth paragraph, first line. Erickson moved to approve the minutes of July 25 , 1985 as corrected; Paterson seconded. All in favor ; motion carried. August 1, 1985: Paterson moved to approve the minutes of August 1, 1985; Head seconded. All in favor; motion carried. August 15, 1985: Paterson moved to approve the minutes of August 15, 1985; Erickson seconded. All in favor; motion carried. August 22, 1985: Head moved to approve the minutes of August 22, 1985; Austin seconded. All in favor; motion carried. Motion- Paterson moved to adjourn the meeting at 5: 20 p. m. ; Erickson seconded. All in favor; motion carried. Kim Wilhoit, Deputy City Clerk 6