Loading...
HomeMy WebLinkAboutminutes.boa.19860807 CITY OF ASPEN BOARD OF ADJOUTRENT AUGUST 7, 1986 CITY COUNCIL CHAMBERS 4:00 P.M. A _E-N-D A I. CALL TO ORDER II. NEW BUSINESS Case #86-15 / Yarbrough, Yaw Case #86-16 / Frank & Marjory Peters III. ADJOURNMENT Please note: Case #86-16 will have to be tabled at this meeting due to a deficiency in the noticing. RECORD-OF-PROCEED3i U REGULAR--MEETING- - -BOARD- QF`_ADJUSTMENT - - ___-_--AUGUS_T-J IM Chairman Remo Lavagnino called the meeting to order at 4 : 10 PM with members Josephine Mann, Charlie Paterson, and Ron Erickson present. NEW-BOS-INESS CASE__#_ $6=161--FRANK-&-MAWORT-RETERS Mr. Peters said the address submitted on the application was incorrect, therefore, he asked that his case be tabled in order to renotice. t Mann moved to table Case #86-16 until August 28, 1986; Paterson seconded. All in favor; motion carried. CASE---#8f--3-5f-YARBROUGH---YAW Lavagnino read the variance requested: "Property is located in the R-15 (PUD) zoning category. Rear yard set back required is 10 feet. Sec.24-3 .4 Area and Bulk requirement. Applicant appears to be requesting to enclose a deck that currently encroaches into setback 5 feet. Sec. 24-13.3 (a) can 't enlarge a non-conforming structure in such a way that increases its non-conformity. " Michael Thompson was present for the applicant. Lavagnino asked where the signs were posted for this case. Mr. Thompson replied that they were posted both at the bottom of the tram structure and on the house at the top of the tram structure. Mr. Thompson said the owner of the house wants to create a bathroom adjacent to the master bedroom. When figuring out the architecture for this new addition a site plan was being used which was out of date, in fact being the site plan used prior to the 8040 Greenline review. On that plan the setbacks were reversed. Therefore, at that time, it appeared there would be no setback encroachment. When it was discovered that the plan was wrong it showed only 5 feet to the property line. It was discovered that a trail easement went through the property allowing people using the Durant and Fifth Ave. Condominiums to traverse to the Little Nell ski lift. Mr. Yarbrough had indicated when the house was built there was a 1 person wide trail through the trees. When the application went for the 8040 Greenline review process the Durant Condominium Assoc. and others expressed their wish 1 RECORD--M-FROCEEE1?ii�G�a REGUL-AR-MEETING------ ----BOARD-OF`-ADJDSTYJMT--_-._- .-------AUGUST- :--19$6 that the trail be left in its location. Therefore, the Planning and Zoning Commission made it a condition of their approval that a trail easement be reserved, along the existing trail alignment, the width to be determined by the City Engineer. The architects were then left to locate the building according to the City Engineer's determination of how wide the trail should be, with a 15 foot minimum. Lavagnino asked if the 15 foot minimum was documented. Mr. Thompson replied it was documented later, in 1982 . Mr. Thompson showed a plan of the legal easement to the Board members. Mr . Thompson said when they relocated the house the lot was difficult to work with because of the setbacks and the geometry of the actual lot. The house was rotated, as it was pushed up the hill, so that the corner of the house would allow for the 15 foot easement. When built it was not exactly located by a surveyor and ended up 1 1/2 foot over in to the easement. Mr. Thompson said at this time the house and the ski easement exist comfortably together, with the exception that the deck exists over the setback in the rear because the setbacks were flipped, putting the 25 foot front yard setback where the ski trail easement is. Dr . Yarbrough was neighborly in his attitude with the 8040 Greenline review in 1979 in allowing the ski trail to coexist with his house. He did not realize that future expansion would be impossible without encroaching in to a setback. Erickson commented that he would like to see an elevation of the existing house, or a side elevation. He thought this encroachment was in to a setback that is against the side of a hill . Mr . Thompson submitted another site plan demonstrating the topography. Mr. Thompson explained the levels involved in the site plan. Margot Gubser, representing Mr. Colgate owner of adjacent lots 4 & 6, said Mr. Colgate's house was on lot 6 . Lavagnino asked Ms. Gubser to outline her properties on the applicants plan. Mr. Thompson showed photographs to the Board members. Mr. Colgate' s property was below the applicants, but serviced by the same tram. Lavagnino asked if the trail easement went through lot 6 . Ms. Gubser replied yes, but she did not think it went through lot 4. Ms. Gubser read a telegram from Mr. Colgate stating "he would like the improvement of the path in front of the applicants house not to impair the access to his house. Rather to improve same since the applicants construction destroys the vegetation and grade of the original path leading to the present muddy improvement. Subject to agreeing to the improvement he had no objections to 2 REC6iJ3r-QIF--PROCEEYINGS RMUL-AR-1KEEthNG---- - -__-----B6ARY 70E--AD3tYETlENT--------AM©£T-7': AM the request". Lavagnino asked Ms. Gubser to outline the aforeme- ntioned path on the plan, which Ms. Gubser did. Lavagnino asked who was responsible for maintenance of the ski trail easement. The general opinion was that it was the City's responsibility. Mr. Thompson said, as part of the 8040 Greenline review, he attempted to get the City to allow putting in a flagstone walkway because of the mud. Lavagnino asked what happened to the trees. Mr. Thompson said when the easement was widened they were lost. Lavagnino questioned Ms. Gubser's concern, as Mr. Colgate wants the applicant to maintain the portion of the ski trail easement so it does not get muddy, when it is probably the City' s respons- ibility. Ms. Gubser said the land belongs to Dr. Yarbrough and she thought a property owner would be responsible for the mainte- nance of the property, the easement simply allows people to cross the property. Erickson said if the easement was part of the Aspen Trail System then it should be maintained by the City Parks Dept. , as all of the other trails in the City. Mann added that possibly the neighbors could get together to maintain the pathway. Mr. Thompson said the Planning Commission would not allow them to put in a flagstone walk because legal counsel said it would be a liability to the City. Lavagnino said then it is a City respons- liability to the City. Lavagnino said then it must be a City responsibility. Marty Conn, friend of applicant, said Mr. Yarbrough, during the 8040 review process, could have said he did not want people skiing through his front doorstep, but he wanted to be a nice guy. Now he is asking for some relief. Additionally, this extension can not be seen by anyone, nor will it hurt anyone. Erickson asked if any part of the addition could be seen from Little Nell. Mr. Thompson replied no, with it all being below grade. Erickson then asked if the house was within its FAR to which Mr. Thompson replied yes. Welton Anderson, Mr. Thompson' s co-worker, said he was working with Mr. Thompson when the mistake in the plan was discovered. The house was designed by Mr. Thompson based on the way the house was originally sited and plans were submitted to the building dept. that way. When the Building Inspector required an updated survey they found that the house was in a different location. At that time Mr . Thompson, Mr. Anderson and the City Clerk went through what had happened, with the scenario in the past, that made the front yard setback flip from one side of the property to the other. Effectively eliminating this owners ability for any expansion at all . If it had been sited the way it was originally 3 RBCORH-HF"PR6CEEI?i-Nf�S REGUL-AR-KEE ING---------__----20-AID-Or planned, before having to accommodate the trail, there would not have been a problem. Mr. Anderson said he thought there was a hardship in accommodating neighbors on the lower side of the house, forcing the applicant to deny himself full use of his land without a variance. Lavagnino asked what the setback was now, - from the property line to the house. Mr. Thompson replied 25 feet, outlining the area on the plans. Erickson asked what the zoning on the property was. Mr. Thompson replied R-15 with a PUD overlay and a Lodge overlay. Bill Drueding, Building Inspector , said if it is a single family dwelling it is exempt from the PUD and the R-15 zone supersedes the Lodge zone. Lavagnino told the applicants that for the variance to be granted it would require a unanimous vote, since only 4 Board members were present. If the applicant would like a straw vote for an opinion, they could at that time request their case be tabled until more Board members could be present. Lavagnino closed the public hearing. Mann said she thought there was a hardship in this case. She said the special conditions and circumstances in a way did result from the applicant' s actions but only as a result of the Greenline review which has since caused a real hardship. This owner has been kind enough to grant the ski trail easement and now it has become a disadvantage. Mann considered this the kind of hardship that the Board could grant relief from and would be in line with enjoying a substantial property right. The request is small in size and inconspicuous in location and view and Mann did not think it would have an adverse effect. Mann said she was in favor of granting the variance. Erickson said- he agreed with Mann' s thoughts with the exception that he did not see a clear cut hardship or practical difficulty. Erickson read from the Boards Bylaws and thought maybe there would be a practical difficulty after reaching a better understa- nding of the guidelines. Erickson said if he was convinced there was a practical difficulty he would be in favor of granting the variance. Lavagnino asked if Erickson did not think the applicant had shown, because of outside forces dictating what has to happen on the property that it does not allow the applicant to use the property to its fullest advantage. Erickson said he had not been convinced this all happened either prior to or separate from the 4 RED-Q1?--PROCEEDI1;S REGULAR REETIEiG - way the house was built. Erickson added that he did not understand why the 8040 review process caused the setbacks to be flipped. Paterson agreed with Mann. He felt there was a practical difficulty because of flipping the setbacks to accommodate the easement, thereby creating a hardship for the property owner. Paterson said he would be in favor of granting the variance. Lavagnino said he thought this was a minimal and reasonable request. He felt this was the kind of unique condition that caused this -Board -to- be -established. TQ give -relief -,from the strict interpretation of the code. Lavagnino said because of the conditions imposed on this property and that it is only a minimal request he would be in favor of granting the variance. Lavagnino opened the public hearing. Mr. Conn said at the time Dr. Yarbrough went through the 8040 review process he was requested, as part of that review process , to accommodate the ski trail easement. Dr. Yarbrough could have said no to that easement. Erickson said that was the problem he had, the house was resited in 1979 and now there is a 15 foot wide easement. What was the easement in 1979? Mr . Conn said the house was moved 15 feet because that was what the City requested. Erickson said he saw nothing that showed the City requested the house be moved back 15 feet, if it could have been moved back 5 feet then the problems are of the applicants own making. The matter was discussed. Mr. Anderson said the choice was to have the front yard setback 25 feet on the uphill side with no trail , or the front yard on the downhill side to accommodate the trail. The house would only fit in certain locations. Erickson said then the house was moved back the minimum amount still leaving the setbacks in front. Erickson understood the difficulty. Lavagnino closed the public hearing. yL' Erickson moved to grant the variance as requested; Paterson seconded. Lavagnino asked for a roll call vote: Erickson aye Paterson aye Mann aye Lavagnino aye All in favor; motion carried. Not ion-, 5 Fd=W-QF- PROCEEDMW RLW`� MRETI Erickson moved to adjourn the meeting at 5 : 07 PM; Paterson seconded. All in favor; motion carried. f' Kim Wilhoit, Deputy City Clerk 6 CITY-OF-AsPEid BOARD-OF-AJI<S AUGUST 28, 1986 City Council Chambers 4:00 P.M. A--G_-E- #-.D_-A I. MINUTES June 12 , 1986 August 7, 1986 II. OLD BUSINESS Case #86-16 / Frank Peters III. NEW BUSINESS Case #86-17 / Troyer, THE RANCH Case #86-17 / Gleason, Ute Chalet IV. ADJOURNMENT Kim Wilhoit, Deputy City Clerk REMO LAVHGNINO POST OFFICE 80X 532 ASPEN, COLORADO 81612 September 10, 1986 Mayor and Council :.:embers City of Aspen 130 South Galena Street Aspen, Colorado 81611 Dear Ladies and Gentlemen: 1 would like to respond to Francis 7hitaker4s le er City Council dated September 1 , 1986 regards. g case 86--16, a new duplex located at 627 and 529 "lest ivTort rem—� (erroneously located in his letter at 609 West Smuggler) . there are other inaccuracies in the letter and interpre- tations that are subjective and not consista.nt with the record of proceedings . In the third paragraph of Francis ' letter, he states that a motion was made and seconded to overrule the zoning enforcement officer' s ruling. That is the only accurate sentence in the paragraph. He goes on to state : "Three members voted for the motion, two against, so the motion failed due to the four affirmative vote requirement . Had I not been present, I am sure that the other alternate member present would have voted for the motion. This shoes the mood of the Board ." Listening to the tapes of the meeting showed that a motion_ to overrule the building Inspector' s interpretation" , was made by Rick Head and seconded by Charlie Paterson. A role call vote showed that four members voted the maotion and there was only cne afflrmat-!ve vote , cast by 'Rick. Head . The vote upheld the 3uilding Degas t lent ' in-`:.erpretation. To para- phrase Francis, this showed the more accurate "mood. of the Board ," Three metribers did not vote for the motion -as he stated and his vote was not crucial^ tc� the df:cisi.on. (we would have needed 4 affirm-tive votes to overrule the Buildint Inspectors Interpretation. ) One of the reasons for upholding the ruling is that vie have heard cases before , with the requirement that 20% of the wall- bet',ieen d' ,-kplext' s I,t!ust bo col: !:on, and we have historically responded to t,sem cons,i_stantly with equitable application under 'be- exi:atirg int,—Pretation of the code . 1 t 1 r That is not to say the zoning officer was necessarily correct in his assessment when referring to the code as written. While the zoning officer had used Sec . 24-3 .1 (f) (2) to base his interpretations for the past 6 years , there is nothing in the code to support his method (formula) to arrive at his conclusions . Bill Drueding stated that the formula that he used was tha t. duplexes must be connected by a wall, in lineal feet, 20% of the perimeter of the larger half of the duplex. The words If feet" , "perimeter" or "the larger half of the duplex", in this context, is not found in the code . The code merely states : "A detached principal building containing only two dwelling units sharing a common wall no less than 20% between both dwelling units or sharing a common ceiling and floor, in whole or in part, connecting two dwelling units . It is the second appeal-•- A request for. a variance from the requirements of Sec . 24-3 .1 (f ) (2) based, on practical difficulties and unnecessary hardship in interpreting an ambiguous section of the code . --that the above is directed. The zoning officer indicated that the intent of these restrictions was to achieve greater compaction of bulk . The applicant did not claim hardship or practical diffi- culties because of excavation and foundation Mork he had done, as Francis stated. The fact is, he received all the legal permits required because he was allowed to build the structure as shown on plans presented to us . He could still have the same number of bedrooms, same number of baths, same number of units , same density, same configura- tion, same footprint: All he had to do was move the bath- room and kitchen to the basement--- all internally. If the intent was to achieve greater compaction of bulk, the granting of this variance did not affect that criteria. City attorney Paul Taddune was present at the meeting for this case and I 'm sure he would have brought to our atten- tion any legal impropriety or if we had acted beyond our purview . From a legal perspective he stated that "the arguments being made are good arguments . " He went on to say, "It may be that this situation was not contemplated at the time the code was drafted and it is the function of the Board to take a factual situation and put the square peg in the round hole ." It was my personal view , after hearing all arguments , that the applicant demonstrateda unique and creative Interpre- tation of the code not without validity. He construed the i meaning of the code more basically, and on an innocent reading of the English language . There was nothing in the code to direct him to the nuances of what the City or the Building Department might have intended. A motion to grant the variance was made by" Josephine Mann-- "Applicant has demonstrated practical difficulties with the interpretation of the building code . . ." The motion was seconded. by Rick Head . A role call vote showed that four voting members voted for the motion and one (Francis Whitaker) voted against it. Francis is a valued contributer to the Board and to the outcome of our decisions . " However, there are four other voting members on the board, each capable and independent, reviewing the same information, moved by cogent and pertinent arguments , and influenced by the reasoned powers-of-persuasion in discussion among ourselves . We are known as a "tough Board" and are not prone to grant- ing variances frivolously or without legitimate cause . In the final analysis , it is the democratic process that prevails ; each of us voting as he or she sees the case in the context, of our guidelines for granting variances . Sin erely 'no Lava nino, .hairman Aspe oard Adjustment Hand delivered on September 11, 1986 A .M.