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HomeMy WebLinkAboutminutes.boa.19870618 r CITY OF ASPEN BOARD OF ADJUSTMENT JUNE 18, 1987 A G E N D A I. ROLL CALL " II. MINUTES April 16, 1987 III. REQUEST FOR EXTENSION Case #86-26 / William A.Nitze IV. NEW BUSINESS Case # 87-8 / Frank D. Ross V. ADJOURNMENT r RECORD OF PROCEEDINGS BOARD OF ADJUSTMENTS JUNE 18, 1987 Chairman Remo Lavagnino called the meeting to order at 4 : 00 pm. ROLL CALL Answering roll call were Remo Lavagnino , Francis Whitaker , Charlie Paterson , Josephine Mann, Rick Head and Ron Erickson. Anne Austin was excused. MINUTES OF APRIL 16, 1987 Remo reminded the Board that it is inappropriate to introduce extraneous information in the closed public portion of the meeting where the applicant does not have a chance to respond. Rick made a motion to approve the minutes of April 16, 1987. Charlie seconded the motion with all in favor . CASE #86-26 / WILLIAM A. NITZE REQUEST FOR EXTENSION Dick Fallen representing the applicant: The Nitzes were granted a variance on a height question last year. They had intended to start construction this year . Personal problems are causing them to move from New York to Washington. So they are riot going to be able to start this year. Therefore they wanted to confirm that they could get an extension for a year to allow them to pursue their plans this next year . Ron : This variance actually runs until December 1987. If we grant an extension, are we granting a 1 year extension from December of 188 or from June of 187 to June of ' 88. Fred: You would be entitled to determine that . Remo: I don't know if the Board is amenable to granting you a 1 year extension but maybe a shorter one so that: you can get started . Remo : Rick , you are the one voting member who was not at the meeting when the variance was granted. Do you have! any questions or comments? Rick: I am very comfortable with the granting of the variance and the extension as well. Remo asked for questions from the rest of the Board members. BAM6.18.87 MOTION Rick: I make a motion we extend the variance from December of 1987 until June 30, 1988 . Josephine seconded the motion. Roll call vote: Rick, yes, Josephine, yes, Charlie, yes, Francis Whitaker , no and Remo, yes. Extension was granted . CASE #87-8 / FRANK D. ROSS Variance requested: Property is located in RMF zoning category, FAR for a duplex on a 6,000 sq ft lot is 3,600 sq ft . (Sec 24-3.4 Area & Bulk requirements) . Applicant appears to be requesting a variance from the floor area requirements of the :RMF zone of an undetermined amount. Remo: I would like to bring something up before the Board before we go forward on this . Did you all see the posting? The lettering on the posters was very tiny and did not meet the requirements of the code which specifically states in the packet that we got : Notice given by posting of a sign suitable materials not less than 22 inches wide and 26 inches high. I believe that was given to you by wherever you got the packet from the Building Department. Composed of letters not less than 1 inch in height and stating the type of variance that is applied for , date of application and all pertinent material.. I had to go right up to that thing to find out what: that variance was all about. Now I bring it to the Board' s attention as to whether the Board feels that we should turn down this case and he would have to re-apply. Charlie: If there is no objection from the public, I would feel it is all right to go on with this . Francis: Does this sign not conform? Remo: The sign conform. The lettering does not . It is very small. And code requires that the lettering be not less than 1 inch in height . Charlie: It is about 3/4 inch. Remo: Does anyone in the audience have any objection or did not realize this posting was not in conformance with the code? 2 BAM6. 18. 87 Linda Roach: This lady spoke so softly and there was so much street noise that it is impossible to understand what she said. Jack Wall: I am a property owner next door . To be quite frank the notice that we received in the mail only showed one owner. At the same time it was very vague in regard to what the variance was for. And it required us to go down and do a little research just like the young lady back here was saying to find out what it was . To be quite frank if this continues today I think the drawing should be put up in regard to this thing so everybody can see what the building looks like. Remo: We are just on the sign now. Jack: I did not see the notice. Remo: You didn 't see the notice at all? Jack: No. Remo: Or you didn't read it. Jack: I didn't see it at all . Remo: Well, it was posted and it meets those requirements. It is just the idea that possibly somebody from the street without trespassing on private property could read it . It is very difficult to read from the street, from the public access . I had to open up the gate and go in in order to read the notice. Fred Gannet: The Board has to make a factual determination as to whether they believe there has been substantial compliance with the standards . If the Board determines that there has been compliance or substantial compliance , then I believe you can proceed even though there may be some technical violations or some technical inadequacies in what was given. Francis: Perhaps it would be pertinent to ask if anyone in the audience did not feel they received proper notice by the undersized letters on the sign. Remo: That is what I hope I conveyed to the public. Does anyone here have any objection or comments regarding the information or the size of the letters or being able to read the posted notices on the respected houses? There were no public comments. 3 BAM6.18.87 Remo: What is the pleasure of the Board? We can send it back and they would have to re-notify and re-post it and postpone this meeting until they did this , unless you feel that with the comments that we heard that insufficient notice was conveyed . Francis: I have been out of town . If the lettering was not visible from the public street then I think it should be done over again. Charlie: The fact that it is the middle of summer and the gates -were ajar and it -is very --easy- to walk in there and it -isn 't like there is a huge snowbank and you couldn't go up and read it--I didn't have any trouble walking in there and reading it . I personally feel that all these people have come here for this meeting at this time and their time is valuable. I would like to See us go ahead with the hearing. There were no vicious dogs or anything like that . Josephine: I am supporting what Charlie said . I would be willing to hear this case. Rick: I agree with Charlie and Josephine. MOTION Rick: I make a motion to continue this meeting . Charlie seconded the motion. Roll call vote: Rick , yes, Josephine, yes , Charlie, yes, Francis Whitaker , yes and Remo, no. Remo: The Building Department has indicated that there is only one request here and that is a variance . I notice in your introduction, you are asking us to overturn a decision made by the Building Department and reverse his conclusion. Am I correct in that? Drew Patton: _ We can get to the same place. I don't want it to be procedurally defective again if that is what you are suggesting . What I want to talk about are two elements to this matter . First a decision by the City official which we are asking you to review and reverse. Second the variance from an FAR-- Remo: This is 2 different requests? Frank: Correct. Remo: Were you aware of this, Bill? 4 BAM6.18.87 Bill: This is the application, or a copy of. OK? Everything else you have is a justification or whatever . This is not asking for an overturn of my decision or anything like that. As far as I am concerned all they are asking for is a variance from the floor area requirements . Drew: If that is all we need, that is all we want. We are OK because if you grant us the variance then the City official involved can change his position without any action on your part. So if we need to consider it that way, it is fine with us. But we will have to talk a bit about how we got to you today with this . Remo: In the introduction you are making two requests. One is that his decision be reversed and the other one if it isn ' t reversed it be inferences that you request a variance that would allow that to take place regardless . And his decision would stand and what you would be getting from us is a variance from that decision. Drew: I guess that ' s right . For the record there are 2 applicants and we are dealing with 4 lots . 2 are owned by Frank Ross, 2 are owned by Aspen Custom Builders . What we are talking about today is the denial of an application for a building permit . And the second element of that is if you feel that that decision is one that you want to reverse today--to get to that you will need to grant us a variance from the floor area ratio requirements imposed on this property which is zoned RMF. In the RMF zone, what is the allowable floor area ratio? When the question was put to me the answer was 1 to 1. When I took out my copy of the Building Code, or the zoning code I noticed that my code had 1 to 1 in it also. The 1 to 1 was something that had been penciled in under RMF and when you get to external floor area ratio there is a 1 to 1 in my code. I can tell you that it is on page 1454. When you look at the zone district RMF and you get to external floor area ratio it says "same as R-6" . Now what happened is that in meetings with the Building Depart- ment, our clients presented plans for the project which included determining open space requirements , FAR applicable to the property. And I think that when you listen to what the people have to say who were involved in this process, it will become clear to you that they acted on the basis that the allowable floor area ratio in RMF was 1 to 1 . And based on the meetings that our clients had with the City, our clients went ahead and prepared building plans for a project and expended an amount that 5 BAM6.18.87 I am told is approximately $75 ,000 in connection with those plans and in reliance upon these meetings and when they re-submitted the building plans, their application for a building permit was denied. What I think we have is a situation where the developer acted in good faith. He actually went out of his way to clarify what is acknowledged to be a confusing situation. And incidentally, I tested this myself. I called 2 other people who are involved in this kind of work with the City and I just asked them the question without giving them anything else on this and the answer I got was 1 to 1 on the floor area ratio. This included a former director of the Planning Office. It doesn't make any sense to go through the whole geneses of how we got to where we are now. But suffice to say that what we want to show you today is that our clients were told that this was the floor area ratio that was applicable. They did proceed here in good faith. The hardship that we are before you today on is not self imposed. If we were given different information back when we began the process and applied it to the preparation of the plans we wouldn't be before you today because we would have designed a different project. I honestly believe that what happened in the Building Department was a mistake. The problem is that it has caused a delay to my client in terms of being able to get on with his project this season. For the sake of your consideration the numbers are as follows: We are now told that what we can build is 3 ,600 sq ft. That is 1 ,800 feet per side. We have a project that is 4 , 614 sq ft or 2 , 307 sq ft per side . That is the difference we are talking about. 3,600 sq ft--1,800 sq ft per side is what the code will permit. 4 ,614 sq ft or 2 ,307 sq ft per side is what our plans call for . We can appreciate the magnitude of the problem. There are 2 duplexes to be constructed. So we have got 2 of them that have the same problem. I am going to put on the table for you the plans that were actually presented to the Building Department and it was the basis upon which we designed this project. This was presented to the Building Department. Remo: Before they made a decision on a 1 to 1 basis. Drew: That is correct. Rick: If you are applying for a GMP allocation in the RMF zone, would you not be permitted to build 1 to 1? 6 BAM6.18 .87 Alan Richman: GMP has nothing whatsoever to do with this . Single family and duplex structures subject to the sliding scale which you have in the code. Multi-family structures subject to the 1 to 1 requirement. That is the law. Remo: But they are in the RMF zone so they if they use this property for different purposes-- Alan: If they use if for multi-family purposes they would have the right to the 1 to 1 . Frank : As you all looked in your code and as I looked into mine and I went across and to the floor area ratios for external floor area ratio in the RMF zone, I see the same thing--the same as R- 6. If that is the case it is pretty easy to determine what the situation is . You go to the table and it is simple. When I first investigated buying this property and doing a project on it I went and had numerous meetings with Steve Burstein and Bill Drueding. If you look in Bill Drueding' s code book or if you look in Alan Richman' s code book , they will have written underneath "same as R-6, 1 to 111 . So as we are going through these meetings and the first time I got a clue of this is in a meeting with Steve Burstein. I said "Why is yours 1 to 1?" "Well, that is what it is. " "How do I know that is what it is?" "Well, that is just what it is. " We thought about going to the GMP application doing 5 units on this project, maxing it out and doing a 12 ,000 sq ft project on this . As I started investigating all the problems of going through growth management and so forth, I decided not to do that. We could go ahead and just build 4 units as opposed to 5 and not go through the growth management process. I don't think anybody in Aspen who has ever tried to build anything, it just becomes ambiguous. This is one of the things they are changing in the code simplification. To make it clear. Nonetheless , because it was ambiguous and because they have got 1 to 1 written down, I did what they ask you to do before you go through plans and go through zoning confirmation . So I first called Bill Drueding and asked him what it was. Was it 1 to 1 in the RMF zone or is it the same as R-6? The answer was 1 to 1 . We also had some questions on what counts as open space require- ment. What Bill suggested we do is make a site plan that shows what our setbacks are and so forth and that is what I refer to and what they refer as a pre-plan zoning confirmation meeting. So that is when we made these plans right here. We went in with these which clearly states how much square feet we are talking about , what our setbacks were. We got clear on what we were 7 BAM6.18.87 counting as open space . And Bill told me at that point in time "It is 1 to 1 . You are only using 2,300 or so forth per side. What you are counting here as open space is open space" . And so we went ahead . Only after that I gave the architects the go ahead to move on this thing. This was in January. I presented this to Bill somewhere around the first week of January and the architects were with me in that meeting. And I fully suspect that Bill firmly believed what he was telling me was correct. Obviously I am not going to go in if I think it is 1,800 sq ft if I wasn' t told that it was 1 to 1. I am not going to go and make plans that aren 't 1 to 1. After we have gone through with all this exercise and try to slip something by. That would be stupid on my part. Had I been told that it was 1,800 at that time, that is what we would have built. I have built with Bill and the Building Department on a number of issues that are interpretations by the Building Department that could or could not be read several different ways by whoever read them. And I have never argued over there. When they give me an interpretation, that is what we live by. And that is what I did here . So after January after we presented this we went ahead with the plans. We finished the plans in March and I presented them on March 18th. Somewhere, approximately a week later Bill called me up and said there was a problem--that Alan said that the FAR was wrong here that it is not 1 to 1 and that we have to go by the sliding scale. I went in a talked to Bill about it. And I took these back in there . He said "Yea, I remember giving you that. I think it is 1 to 1 . I still think it is 1 to 1" . Obviously everybody was confused about this issue at that point in time . because Alan had told them that it was 1 to 1 . So why was he doing that when everybody was absolutely positively sure in January that it is 1 to 1 . Who do I have to go to on these things but these people? That is what they are there for--to give me guidance on these and make interpretations on areas that are ambiguous in the code. Bill, in his frustration, called Gideon Kaufman on the telephone from his office that day and said "Here is the situation. What do you think it is"? Gideon Kaufman told him then it is 1 to 1. So this is not something that is clear to everybody. It is mostly unclear to everybody. We did everything we possibly could to try to clarify the situation. I don 't think there is anything else I could have done. Bill said after that he said "I will go back and talk to Alan and see what we can do" . He came back and said that "No. Alan said that this is the way it is and that is all we can do. It is 1,800 sq ft and that is what you have got to live with" . 8 BAM6.18.87 There were lots of meetings back and forth with Alan Richman and we bounce it off several different ways and had many talks with the City Attorney and they say "No this is the code and that is what you are going to have to live by" . Alan suggested that I come to the Board of Adjustment because that is my only relief . I would like to add that I have done this before and I have gone through gray areas in this code that can be interpreted different ways and it is not that we are trying to get by with something. We did everything we could to try work within the system. And the system has caused us a terrible hardship because we relied on that. The other thing I would like to point out is that had I been trying to pull something over on them, I would have maxed this thing out . I would be a 3 , 000 sq ft per side . But I didn' t do that. It wouldn't be right for the neighborhood . It would be too big even though we were told we had a right to do that. I wouldn't try to get by with anything here. We are trying to build a project that would fit on the site and work within the parameters and system. It is just a difficult situation when you go to the people that are supposed to be able to tell you what it is and you spend lots of money. We have lost lots of time. Our competition has gotten ahead of us. If we could have done anything else, I don't know what it is. We tried our best to make absolutely sure that what we were doing was correct. This is what I took into Bill in January. There were 2 different issues here. One being the open space and one being the floor area ratio. The first thing it say--"Allowable floor area--1 to 1 ratio. Lot size--6 ,900 sq ft , allowable 3,000 sq ft per unit. Open space requirement, 35% . And then the calculations for the building setback. The front yard is 19 X 60. The side yards 21 X 81 which gives us 2 ,112 feet of open space and the open space required was 2 ,100 sq ft. Even on this one it still spelled out what we thought the allowable floor area was . Bill thought even in March that it was 1 to 1 . Ron: Yea, but obviously he was wrong. Drew Patton, Architect: We worked with Aspen Custom Builders for a couple of years now. We did a project with them that is now being completed on West Hopkins Street. It is a victorian front house in the 400 block of West Hopkins. We went through with the Planning Department last year on lots of issues there. On this specific project, it did start out as a 5 unit building on 4 City lots. And we were going through Growth Management. And through that process and in meetings with Steve Burstein is where we 9 BAM6.18. 87 discovered that there is 1 to 1 there. That was back in October of last year. We decided not to go through that process and that we would go to duplexes. To test and verify that it was 1 to 1 we prepared these drawings and had a meeting with Bill Drueding. In that meeting we presented basically two issues . One was our open space and, as Frank stated, the FAR was understood to be 1 to 1 . These are considerably under 6,000 ft per building. They are not maxed out and at that point Frank Ross was comfortable in having us proceed with working drawings which we completed. Rick: Were you present at these meetings? Drew: Yes , I was present . Through the meeting with Bill Drueding and reviewing these specific drawings which we have prepared. Fred: The Board may want to clarify the issues on this in terms of what if there is an appeal. Because if there is an appeal issue then basically the Board will be determining whether or not Bill was correct or incorrect in denying the application for a building permit. If they are applying for a variance, you ought to ask the applicants to state for the benefit of the record what the grounds for the variance would be. You should identify what the specific issue before the Board is . Remo: At this point it sounds like all they have presented to us were issues to reverse the decision or to accept the decision that he made . Whether it was erroneous or not that is a hardship. I am assuming that that is what they are trying . Whether his decision caused a hardship and allowed them to lose or to spend $75 ,000 on this project and now being told that it is not 1 to 1. And they are appealing to us on that basis. Drew: We are asking for a variance from the floor area ratio requirements. Fred: Based on the reliance of the City officials. Drew: Correct. And based on the hardship because of that. Remo : Based on the information given to you by the City officials. That is all I heard from you. It is not based on any other appeal to grant you a variance other than that. Frank : There is the grounds for the granting of the variance as set forth in our application. We have recited all of the various code provisions , the authority and the basis that the Board has to act on. I did not want to re-hash all that. 10 BAM6.18.87 Remo: Is everyone clear on this? Ron: I have a question. We have one provision in the code that is RMF. It really covers 2 different categories. A duplex is an RMF but you don't need GMP allocation. Is that correct? But if you are RMF and multi-unit and want to do duplex then you have to get GMP allocation? Basically the thing is that RMF can be 2 different things. One needs GMP allocation that is multi-unit and it is 1 to 1 . But you need GMP allocation. Alan: That is correct. Ron: And to build a duplex, you don't need GMP allocation. You don't have to go through that whole procedure but then you are limited to whatever the sliding scale tells you . Alan: That is also correct. Francis: Did this originally start as a multi-family? Drew: Yes. In October . Bill: When I first talked to Frank , he was coming in for a GMP application with a 1 to 1 FAR. So you had the GMP and you have certain rules. Then he decided not to do the GMP. He went to a duplex so you have GMP certain rules 1 to 1. He switched to a duplex and I never--I don't think I was switched down to here--I was still in my gear of the GMP application for a 1 to 1 . That sort of thing happened. That is the way I was dealing with this thing. I don' t know what I said about it, you know, you know this thing here , I didn ' t look at the figures. I said "Just watch your FAR" . I know that. So I don't know that I said "Do you have a certain FAR?" . But I was always somewhat dealing with this 1 to 1 because of the initial start with the GMP. Remo: What brought you attention--at what point. Bill: At what point? Where they had a building permit in there and I was talking to Steve Burstein and I said something to him and he said "No, I talked to Alan about that. It is not 1 to 1" . And that brought it to my attention. Remo: And when was this? 11 BAM6.18.87 Bill: After this building permit came in. After 3/18/87 . After that. At that point I went back and looked at the code again. This is the first duplex that has been built in the RMF zone that I know of since I have been here. So I was not real familiar with it. But at that point when I was--it came to my attention through Steve Burstein, I looked and that is when I called Alan and asked Alan because he is the boss on that. Drew: Most of the construction--because I asked about this too-- in the RMF has been multi-family. The perception is that when you want to build it is 1 to 1 and you think that that is the mistake that they were laboring with. Why they thought 1 to 1 . Most of the stuff is multi-family. And all of a sudden you say I will take the 2 duplexes and I will put them together and all of a sudden I have a multi-family that is 1 to 1 and it is very hard to catch the distinction. And we think it was a mistake. Remo: May I ask why you went that way? Since you could build more under RMF, why did you go to duplex? Drew: Because on a 12,000 sq ft you have bulk on a small area. And when we tried to put the 5 units on there they started getting so narrow and because they had to be narrower, they also had to be longer . Because they had to be longer , you can 't make it work . Because you can' t get the only open space that counts is in front. So when you make them long enough, you lose your open space. Plus the fact that there are some nice trees in the back so that we didn't want to push them back and take those trees out. Remo : So it is not to your advantage to go to RMF. Are you saying that? Drew: There were lots of considerations. This worked better on the site. Remo: With a 1 to 1 ratio. Drew: That was not the criteria at all. That was not why we did it. We were building a much bigger building--one more unit with RMF--because dealing strictly on an economic standpoint the economics of the RMF for 5 units were a lot better. But as we started trying to do the design-- Remo: Even with the idea that you might have thought that you would have gotten the 1 to 1 ratio with a duplex, the economics were still stronger in the RMF. Drew: We had one more unit and that is deed restricted, too. We 12 BAM6.18.87 would have had an employee housing requirement at that time , that is correct. Remo: So that is not desirable thing to have included in your project. Remo asked if there were more questions from the Board members. Rick : In our consideration and deliberation on this , we can consider hardships. Is a financial burden brought to bear on the applicant by the City official?- Is- this a consideration that we look at? Remo: I feel that they have legal recourse as to the decision that don' t affect our decision right here. Frank : But we don' t want that. Remo: But we have guidelines and criteria, too that we go by and sometimes that is not a consideration--your financial hardship. Remo asked if anyone from the audience had comments. Jack Walls: I am President of the Homeowner 's Association of the Chateaulay Condominium . We are opposed in regard to the variance floor area ratio in regard to this. To be quite frank if you give them a variance that ' s the best free floor area growth management plan application I have ever seen in my life because they didn ' t even have to go through the competition. Most especially when you are enlarging the building like it is. To be quite frank also that building is--those two buildings-- those two duplexes are really inappropriate for that neighborhood . They take up a tremendous amount of property in regard to the coverage. It goes from setback to setback . Now what is the square footage on each one of those units? Drew: 2 ,270 square feet. Jack: So you are approaching max in regard-- Drew: 4 ,600 square feet per building. Jack : I sat down and picked up my code book before coming to this meeting and reviewed it in regard to the introduction that they submitted to the City. And with all candor I can sit down myself and go through and I found the sliding scale applied to it without having anybody show me . I also found that if you wanted to max out your piece of property, you can go through the growth management plan applications . 13 BAM6.18.87 So to be quite frank , I think that if they or their architect had done his work in advance and had really sat down and worked it out and did research on it, they would have known exactly what they had to do. They could have checked it out with the City and not made it half so confusing in regard to the City. Drew: That' s what we did, is made it simple. Jack : No. You got a confusing situation in regard to it because you went to him first in regard to a growth management plan application which is 1 to 1. But nothing basically was said in regard to just a duplex in regard to those lots. You could have applied it and said "Hey what about this in the code?" , if you had researched it. Then Bill would have caught that Mother Goose and said "Yes , you are right , it is a sliding scale for a duplex" . Drew: He didn 't catch it in March. We did exactly that. Jack : Why didn't you catch it? Drew: We went to the City--I did point it out and said "Which is it? Is it the sliding scale or 1 to 1?" Frank : He even called Gideon Kaufman for clarification. Dick Butera, Frank Ross ' s partner on the project. I would just like to say that we bought the 2 houses reading the zoning code as it exists with the multi-family intention of 12 ,000 sq ft of building. And as we proceeded through the analysis as you do on any project if you are going to do a good project and protect the neighborhood and found that the zoning with a GMP application allows more than we thought was aesthetically correct. So Frank And I had long discussions about it . The architect sat down and made conclusions that to do a quality project in this neighbor- hood , we shouldn 't build 5 units, we ought to build 4 units. And to do a quality duplex unit, we looked at the FAR and it is 3 , 000 sq ft and a quality duplex unit you can do at 2,300 to 2,600 sq ft. And so we said there is no sense going to 3 ,000 if you don't have to because we can do a quality unit that is less which will give us more open space and keep the trees in the back . This is in a series of discussions that a developer who has any intentions of doing the right thing. There is the other type of development going on in this town where you take a piece of ground like this and you just max it out and you beat the system and try to beat Drueding and you try to beat this guy--well our track record isn't that. Our track 14 BAM6.18.87 record is to try what is correct for the neighborhood and maintain high quality standards. If you look at the house that Frank is building on West Hopkins , it might be the prettiest victorian built in Aspen in 50 years. So we stop at this stage of our discussion and say "Let 's go make sure we are on track" . We did exactly what any citizen would do and go to his government and Bill Drueding did what any public official would do . He read into our plans and gave us a judgement--maybe he made an error--it ' s certainly an honest error --in private life we make errors every day. Public officials are allowed to make errors . We are not being critical . We are not saying he should be chastised. We are saying that as a result of this whole process, we have been injured but we are coming to you to say to you, "Please preserve this high quality project. Please preserve the integrity of the public officials in that they are permitted to make mistakes on what is obviously an ambiguous quote". If you make 5 phone calls tonight, I will guarantee you that you will get 5 people who will say it is 1 to 1 and not the other. So I would hope in your deliberations you would consider the quality of the project . That is really the bottom line. We are trying to preserve neighborhood. We are trying to do the right thing as you are and as Bill Drueding and Alan Richman are. That is the bottom line . What is the quality of this development? If we did what we are allowed to do, the people in Jack Walls ' s condominium would have a much bigger building and an uglier building and less trees and less open space. So we have been working to the disadvantage of the applicant to do that. Remo: Apparently they are not convinced of that or they wouldn' t be here. Butera: If the neighbors would think about the fact that if we go through GMP and build a 12,000 sq ft multi-family building instead of these which are 2 ,800 sq ft less on the site than we are allowed to build, certainly we are all going to be better off. Paul Wells, 811 East Hopkins: I also am opposed to the project because of its size and everything else. If you ever wanted to build a high quality house you build a high quality project on a smaller scale. There is no reason why it can't conform to what the code is . And what I have heard today is that the City Attorney is the authority on the Municipal Code and has ruled that this is a sliding scale project . Just like Jack , I went to the code when I got the notice and I had no trouble at all figuring out that it should be a 3 ,600 sq 15 BAM6.18. 87 ft structure. It is very clear and very accurate . And if a mistake was made and interpretation of the code by the Building Department or the Planning Office and I don ' t think making another mistake by granting a variance here can make anything right . People do make mistakes but that is not reason for granting a variance in this case. It is not too late to go back and re-design the project. Drew: The one that all the neighbors are saying , I agree with. When they look in the code book it is very easy to determine what it is . Their code says what our code said. But they are not dealing with the City official that I dealt with in which case the City official ' s code says 1 to 1. Remo: Anybody who writes 1 to 1 in a code book does not make it-- Drew: Its not just anybody. It ' s Bill and Alan and Steve Burstein. Charlotte Walls: I live next door to this wonderful project. I will remind you that some years ago whoever developed the Cottonwoods had cut out 2 feet because he built it too high at great expense. I don't think the fact that somebody says that he paid $75 ,000 for some architectural plan means that there is a hardship there. I am willing to believe that he is mistaken in the amount that he thinks he paid. I want to remind you also that the growth management plan is there because it provides the trade-off. You get a larger floor area ratio but you also pay for that by employee housing--by improving the neighborhood or the system in some way with improving the water system. You have to tell how you are going to improve the traffic and circulation and the drainage and so on from the site. So that may be the reason that they added this extra floor area ratio for people who want to go through growth management and make those improvements in the neighborhood . To take a neighbor- hood like ours--it is a working class neighborhood--small houses , inexpensive owner occupied condominiums and then add--I think you are going to change the whole neighborhood by bringing in this whole new element which will be expensive. I think it is going to change the whole character of the neighborhood. And we have so few places where ordinary people can live anymore that I hate to see that go. Rick: If he was allowed to develop to the max under the RMF you would have a greater density than the one he is presenting here today. 16 BAM6 .18 .87 Remo: But then there are tradeoffs. They are giving something back to the community such as employee housing and improvements to the parking. Jack: The growth management plat application situation makes it a competition. They compete for that space. But the competition at the time they are going through it , the City has a say basically in regard to the design of the building . They can either accept it or they can turn it down and not give it the threshold points to be able to continue. Rick : The point being, if he met all those criteria he would still be allowed to build 1 to 1 which is much greater density than what he is presenting here. Charlotte: Then I think we would be satisfied that he had gone through the process and competed. Ned Sullivan: I live at 801 East Hopkins and just across the alley from this. Had they gone for the maximum, they may have gotten permission. My apartment is on the market. Mr . walls 's house has a for sale sign on the front of it and a lot of other apartments and houses in that general vicinity do too. And is this going to improve the value of our holdings or is it going to make it harder to sell? Alan Richman : I want to remind everybody on the Board of Adjustment--you probably are all very aware of this--that the reason for establishing the sliding scale FAR in the first place is the size of buildings that we are seeing in our residential areas. The City was approached by people throughout the Shadow Mountain area and the west end area with objections to what was going in. Everybody who was a part of the development process back in 1981 and 1982 knew that we had a problem with the size of single family and duplex structure in the RMF zone . That was the problem. It was also affecting the R-6. But the problem was we had a 1 to 1 FAR in the RMF zone district . I have had a lot of contact with this project and I , - too , recollect my first contact with the project was back when it was growth management. We were pre-apping this back in the fall of 1986 . And it is pretty clear to me that just as the applicant feels that he has been confused by some of the advice that he has been given , the staff was very confused as to when we stopped being involved in growth management projects and when we started being involved in single family and duplex. I think that is very, very clear in this case. 17 BAM6.18.87 I talked personally to Steve Burstein in my office who is the person Frank was dealing with most of the time. And I said "Steve, did you ever tell him that the FAR for single family and duplex in the RMF zone district was 1 to 1"? He said "No" . He said "When we were talking FAR, we were clearly talking multi- family structure" . The people in my office have been advised that the FAR which shows up in the book does not apply to multi- family structures . The FAR which applies to multi-family structures is, in fact, 1 to 1. How do I know that the FAR should be the sliding scale FAR in the RMF zone district? I have a copy of Ordinance 11 series of 1982 . The appropriate page that establishes the sliding scale, and there is no question whatsoever, Section 8 establishes that. So unequivocally I can state that I gave proper advice both to Steve and to Bill that the FAR for single family and duplex structures is, in fact, in the RMF zone district--the sliding scale. That is what I told them when I was asked the question the very first time I was asked the question. I did that research. I was approached in March when the building permit was submitted. As I suggested to you the ordinance was brought about because of the problem in the RMF zone district clearly addressed the RMF zone district . If you look in your code which is what the developer should be doing when he starts a project, it is very clear to anybody that if you have any question whatsoever it is what is the FAR for multi-family structures. The FAR for single family and duplex structure is unambiguous. It is clear as could possibly be stated. No question it is the sliding scale. That was the Council ' s intention in adopting that regulation. I think Mr . & Mrs. Walls gave you a pretty clear understanding of why there is a different FAR for multi-family than for single family and duplex. The idea of tradeoffs is something you find throughout the zoning code . You will find lodge structures throughout the west end neighborhood which have an FAR capability of the L3 of 1 to 1 sitting next to single family and duplex structures which have a capability of only of the sliding scale. For a tourist community we need to provide inducements for lodge- type development and multi-family. We provide an incentive of a larger FAR for using what is a very limited area of the City. We cannot afford to waste the RMF zoning district on single family and duplex structures. Remo: They still can put duplexes in? Alan: Absolutely. There is an inducement to provide for a slightly larger structure in return for what is development to 18 BAM6.18.87 what the community needs. The code does have that tradeoff and I want you to be clear that the 1 to 1 is not a mistake. There is a reason as to why the 1 to 1 was left in multi-family and why it was not addressed according to his letter. Butera: This is a rather appalling speech. This is how I lose my right to ever get a building permit again. But I can't stand this kind of stuff because this is exactly what the kind of dishonesty that we are trying not to have in government and this is exactly why no one trusts this government in this process . Because this man who just got up in front of you said to this man, and under oath he is going to have to deny it, "If it were up to me you guys have been screwed and if it were up to me if I had the power I would give it to you but I can' t. So go to the Board for relief" . And that is the speech we just got. Why didn ' t he make that speech about the wonderful need for lodging, RMF zone and all that to us when we were in his office? Why didn't he go through this? What does that have to do with us? Is he designing whether we need lodging or not in this hearing? That has nothing to do with it. The fact is his people made an error of judgement. You have to be 2 years old to have in October and November a 5 unit multi-unit project in front of a man and then come back after the GMP hearings are over and say "We have changed our mind. We are going to duplexes . " And have him say " It ' s confusing " . Well , if it is confusing , you had better get yourselves to train your staff because you and I and everybody in this room knows that is not confusing. What do you think--that Frank Ross is an idiot? He is one of the finest architects in the country. We made it abundantly clear . A high school student would understand. We weren't in the doing magical waivings of the wands. We were in there saying "We have changed our mind. We are going here because "it is a better project" . And that is the bottom line of what he is supposed to be doing. The bottom line is, it is a better development. Not all this hogwash of who is designing how many lodge units we need. That is not the issue tonight. The issue is that we have been screwed. He admitted it and he said "If it were in my power I would give it to you. But it isn' t. So please go to the Board" . I just want you to know what speech we get and what speech you got. Alan: I think I was very clear with Frank that while he had relief to go to the Board of Adjustment, it is my duty to defend the laws of the City. And that I believe in the floor area ratio . I believe in what we told him. I believe in the correctness of what we told him. I did invent quite a bit of sympathy for Frank . I feel quite badly about the amount of time that has been involved in this project. Certainly I said I felt 19 BAM6.18 .87 for him I felt quite sympathetic. I said nothing, I mean, to the affect that I regret this because I don' t have the authority to grant a larger building than the sliding scale. I just don't and I have to-- Butera: I didn' t say you did. I said you said "If it were in my power I would but it isn 't" . And we will see what happens when you have to tell the facts. Remo: I think though that they did admit to their mistakes here. They acknowledge that they made those mistakes. I don' t think that they-- Butera: He sent us here to get relief because he had sympathy for us. And then he makes a speech putting it on to Frank . Remo: Procedurally your recourse is to come to this Board for relief. So he didn't tell you anything that he shouldn't have told you as a City official . Butera : I think you know what I mean. I think you know the spirit of what I am saying. Remo: I understand what you are saying. Alan: Frank , I would just like to ask that I would not suggest to you that I would very clearly and aggressively defend the regulations and the actions of my agency. I could not have been clearer. Frank: And that was the last time that we talked. But before that you said "I understand exactly what has happened to you. I am going to do everything in my power to talk to Taddune and get everything resolved in this thing. Alan: That' s correct. Frank : You all sat there and you said "Hey if this was a reliance, I think we can make the judgement on reliance . You clearly had reliance. I am very sorry about the way this thing got handled. There was a mistake on our part" . You completely understood . The only time that you said you were going to have to defend it vigorously was the last time that we met. Remo: Fred, can you give us that in a legal term. I guess what we want is how valid is an unwritten and unacknowledged spoken word by the Building Department and the applicant' s reliance on that word. How valid is that before they get a building permit in legal terms? 20 BAM6.18.87 Fred: In terms of the appeal, I think if you look at it from a legal point of view there is no question that the decision made by the Building Department was accurate in turning down or vetoing the building plans . The code, and I think they have agreed to it, is clear that on this case the applicant is not entitled to what the building plans ask for . So on that issue , I don't think that any side has disagreed what the facts are. On the issue of whether or not a variance should be granted, I would point out to the Board that the code is quite specific in identifying the conditions under which this Board must consider and should consider in determining whether or not to grant a variance. That is, they have addressed some of these issues in some ways. I think more indirectly than directly. But the 4 criteria under which valid reasons for granting a variance are: 1. That the special conditions and circumstances do not result from the actions of the applicant. 2 . That the special or extraordinary circumstances apply to the property and do not apply similarly to other property in the same vicinity and zone. 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. 4. That the granting of a variance will not adversely effect the general purpose or comprehensive general plan. Now the question comes down to a legal point of view is whether or not an alliance by one City official is sufficient grounds to constitute a hardship. My advice to you is no it is not. Now if they were to rephrase their application or rephrase their request for a variance , there may be areas in which the Board could legitimately consider whether or not the application was improperly denied. But I haven't heard those yet. And so my advice to you is that the issue of reliance is something that can be addressed as so important. It can be handled by civil damages. It is not subject on which this Board is entitled to grant or to pay particular attention to. It is incidental to the issue before the Board. There are other issues that have not been explored which may bring to the Board's attention facts that the Board could legitimately determine. Francis: Is there other recourse for the applicants than going to the Board of Adjustments? Fred: Well certainly the applicant has the ability to appeal the decision of the Board of Adjustments. And secondly it has the ability to take independent action based on civil action to address the issue of damages if that is the issue that most concerns them in this matter. 21 BAM6.18.87 Remo: Do they have municipal recourse before they go into civil action for relief? Fred: They can go through to City Council in terms of municipal relief. Yes. Frank : We are not in a court of law here . And whether we introduced evidence that is specific to what you need to do in a court of law, that is not what you all are all about here. You are here to look objectively to all of the things that happened in this situation and do what is right. People need to have some kind of faith in their system here and I think you get a lot of complaints about the Building Department and it is not necessarily the Building Department 's fault. It ' s the code' s fault. Their hands are tied in a lot of cases because they don't know how to interpret it. Bill will read it one way. Alan will read another. Steve Burstein will read another . And they make a decision on it . It doesn't have anything to do with exactly what it says because they just make their own interpre- tation on that. The citizens of this community have a right to rely on the public officials. Now whether or not it meets the specific points for reliance or not that is not the issue . You can grant a variance if you want to based on that. The point is whether we did was what was right and whether they did what was right. We have been damaged because they did not do what was right. We did every- thing to try to make it clear . It is very easy for people who aren't in the situation to say "Hey, we can look at the code. It is crystal clear" . But if it is not crystal clear to the people in the Building Department, how could it be crystal clear to the citizens? And until you have to start going in here and building and taking risks and putting the money out, that is easy for other people to say. We tried to do everything we could to make this issue right. We didn't just not look at the code. We did a lot of homework on this thing. We had numerous, numerous meetings with these people. The fact that they were confused on the issue of whether it was GMP or duplex, that is ridiculous. You know, this was in January. GMP is over with first of December . Everybody knows that . Bill was still confused in March. The attorneys of this town are confused about the issue. Who can we go to to get clarifications on these issues? There are lots of things in there that are vague. We can't go to the City, ask them a question and rely on their answers? And then we go out and expend monies based on that? I would like for someone to tell me what else we could have done. Remo : Maybe I can get to a more specific point with City Attorney. If they had gotten a permit and started building on 22 BAM6.18 .87 that, at what point is it when you base something on reliance-- the building starts going up then you get the first floor and the second floor--it ' s going into finishing . At what point of discovery that the City has made an error do you stop a project and then penalize the applicant or not penalize the applicant? I mean, here we are, they don't have a permit yet. This has all transpired before they got a permit. Fred: There would be an issue as to whether or not the reliance issue had vested. Whether or not there was something that would have been a substantial and concrete application of the City action that in which a right would vest. And would, in effect, protect them or serve to give them a broad umbrella from which to base their defense or their attack. In this case here that is not here. Remo: $75 ,000 is not a vested-- Fred : I can say that the financial aspect of it is certainly something that is not ordinarily taken into consideration. You can, however, take into consideration financial matters. It is just that in and of itself is not something that is normally subject to consideration in this matter . That does not preclude the Board based on the special circumstances surrounding the facts in this case from taking that and placing the emphasis on that. Remo: But the building and structure eventually translate into monies? Fred: It does. But-- Remo : So we are still talking about financial impact on this applicant. Fred: No question about that. The question would be is whether or not that financial impact if you were to take it into consideration is either offset aggravated by the other factors you have heard by the testimony before or is minimized by that. By itself, even if it were a million dollars , that would not be the determining factor. It would be whether or not given all the other facts brought to your attention would make that somehow more special than had it been in another situation. Frank: We got interpretations from the City and a lot of them-- that is the special condition that caused us to incur the monies which is now causing us this hardship. It depends on whether you all think that 's a special condition or not or whether you think that the Building Department can do this sort of thing. 23 BAM6.18. 87 Drew: When I have appeared before this Board before, I have been under the impression, the code doesn't say this specifically, but on your criteria that you follow it is not required that you satisfy every one of the grounds for you to grant a variance. It is like a multiple choice. Remo: That' s right. Drew: If I satisfy all four , I have a better chance of getting a vote than I would if I only satisfy 1 or 2. I think one thing that has come out here, and I think everybody agrees and I would at least like to have the record reflect--the special conditions of circumstances here don ' t result from the actions of the applicant. I think we all agree that there has been a mistake made. And that on the basis of what we were told we went ahead and did something. I wasn't going to have a debate with Alan today. It wasn't my intention to say that 1 to 1 applies for duplexes. And that if anyone thinks that is what we are here trying to tell you that the law is something different than what it is, we are not. And that is another issue we all agree on. This is the law. There was a mistake made. And in terms of the criteria that you have I would argue to you that at least 3 of the criteria have been met . I think what you are coming down to now is what we mean by substantial property rights . And I think that you have been advised that a monetary consideration is something that you can consider. Remo : You do know that before we apply these 4 criteria, you first have to come under the umbrella of showing the practical difficulties or unnecessary hardships or else these don't apply at all. That is the first thing you have to prove. I don ' t know whether you have addressed those aspects unless you are telling me that the reliance that you put on the Building Department and not your action that created this hardship. Drew: That' s right. It is not something that is self-imposed. We never came here saying it is self-imposed. We have been imposed upon by the process. Fred: I will absolutely agree. You do not have to show that every one of those criteria have been met. Those are conditions that the Board should look at in terms of if 1 or more have been met . Either 1 or all are required to make or not make the case. Remo asked if there were any further questions or comments from the public. 24 BAM6.18.87 Ron read into record letter from Bernard B. Fobish: "In answer to the notice regarding a public meeting for a variance for Frank D. Ross. I am unable to attend the meeting of June 18 , 1987. I would like to address my opinion. As a property owner on East Hyman Avenue I am against the variance requested by Frank D. Ross. I prefer the zoning to be left as is. " Sincerely, Bernard B. Fobish. Remo read into record an identical letter from Janet Fobish. Remo read into record: "We are writing to inform you of our objections to the granting of a variance in Case 87-8. Our objections are based on the following reasons. 1 . The applicant has plainly not shown a hardship in this case. As I understand the procedures neither financial hardship nor delays are considerations . 2 . The request for a 6 , 000 square foot structure is not in conformance with the City code. 3. There are no pre-existing conditions attached to these properties. 4. Applicant purchased the property with the zoning in place and FAR in this zone is clearly stated in Section 24-3.4. 5. Two large 6,000 sq ft structures would not fit into the general appearance and character of this neighborhood. We have reviewed Section 24- 3.4 and we find the requirements quite clear and accurate. The City Code clearly states that for a duplex structure on a lot size of 3,001 to 9,000 sq ft , the applicant has an allowable square footage of 2 ,700 to 4 ,500 square feet with a calculation of 30 sq ft for each additional 100 sq ft in lot area. A 6,000 sq ft lot has an allowable sq ft of 3,600, 3,000 sq ft by 100 sq ft times 3,000 sq ft equal 900 sq ft plus 2 ,700 sq ft equals 3,600. If indeed the Building Department and Planning Department gave inaccurate information to the applicant as the applicant claims-- that in itself does not suffice granting a variance. Mistakes can be made but this does not relieve the applicant from having to build according to City code . If the statements from the Building and Planning Department was one mistake another mistake of granting a variance would not make it right. Until a Building permit is issued whatever may or may not have been said between the parties does not carry any weight. In closing we believe the applicant neither demonstrated a valid need for a variance nor any justification for granting a variance. Therefore we strenuously object to variance in this case. Raymond Vadence, owner at 819 East Hopkins and Robert Weld at 811 East Hopkins. Remo read into record: "I am not happy about it. One thing, please, off street parking. It is terrible with all the parking 25 BAM6.18.87 our neighborhood has with the Athletic Building . Something should have been done about that . Respectfully, Mrs . Elsie Snyder. Charlie: I noticed on the building application about evaluation of $400 ,000 .00. Since you are basing your entire hardship on the architectural fee of $75 , 000 . 00 , I would like to ask you or rather make comment here and you might want to respond to it, my understanding usually is that architectural fees are based at about 10% of the cost of the project. Frank : They are anywhere from 10 to 14% . But I think you are looking at just one of the units. We got twice that which would be $800,000.00. We have the engineer--the architect ' s fee. The engineer ' s fee was about-- Charlie: The only reason I bring it up is because that is your main point of contention. Butera: We don ' t lie about what we tell you people . We are paying $75,000 .00. We haven't told you the interest loss we have lost. The amount of meetings this man had to go to in meeting in Bill Drueding and Alan Richman ' s offices at his hourly rate . Extra meetings . In Aspen everything costs 3 times as much because you can ' t get answers and when you do you end up at hearings . The interest cost on our money. Our competitor is building 4 units. We are going to miss this summer. Now I have got to carry the property the whole year . If I start counting it up for you, sir , we are going to be close to $200 ,000 .00 and that is what we are going to go after because that is what we are being damaged by here. We are trying to be nice in keeping these numbers low and not sound like hystericus. But we don't tell lies. Jack Walls: To be quite frank , I have gone through working with this City and every time I have gone directly to the Planning Department, I have had all my questions answered. I have never had any problems. Frank: We have lost more hardship than that. Remo: Well, it should have been brought out at this meeting if you do have because this is the forum for it . This is what we base our decision on. Butera: Like you were asking the City Attorney--where is the line drawn? We have been injured. We are not asking for you to give us the money back. 26 BAM6.18.87 Frank : it doesn ' t matter whether it is $75 ,000 or $200 , 000 according to the City Attorney. It doesn't make any difference if it is a million. Remo: How have you been injured? In time? I mean, all we have is the record of this meeting, not something you are going to take home with you. Butera: Excuse me . We run a business , sir. We buy 4 lots because we are in the building business to build houses. We have overhead , payroll , offices, telephones, architects, engineers , attorneys who are sitting here, 2 of them right now. Time, in a business, is money. And you plan your future for what Frank and our staff are doing in our building company and it was to build 4 units starting in May the first of this year. Now we have been disrupted and it looks like maybe we won ' t get started this summer. But if we are not--if it weren' t for the relief of this Board , our whole staff , our whole building company, whole building plan for the summer has been shut down. It costs a lot of money to keep a business open these days . Particularly in Aspen and particularly when you do nice things which our track record happens to be that we do nice things. And we go to the Building Department to Bill Drueding with the Jerome and with the Aspen Club and with building houses and we ask questions about controversial issues. We always accept what he tells us. He is here. He can answer . If we have ever broken one rule in over 25 million dollars worth of construction-- I think that Judy in the Building Department and this gentleman here can tell you that we have never broken one rule. We don't break rules. We don't tell lies. We are not Cantrup. We have never broken one rule. All of this has disrupted our business because we now are not able to build and our competitor is building. He has sold 2 units. Our units are better than his . But we are out of business basically. Frank : A lot of people are against this . They would like to see nothing up there. We will build something there. Bill Drueding is sitting over here with an impossible job. He is trying to interpret a code that is impossible to interpret . We are out here trying to live up to the terms of this code and that is very difficult to do. And I think anybody--and you people see it all the time--anybody will tell you that. I think that the record of this Board should be one that the citizens in this town can rely on this Board to be just and equitable . And if you think that we have done something that we have relied on our City officials and that we haven't done everything that we could do to do that then again I don't know what else we could do. The citizens of this town have a right to rely on its public officials especially when they have to go by a code that is 27 BAM6.18.87 clearly ambiguous. That is why we have a code simplification task going on right now--to make this thing liveable. Bill pulls his hair out every day because it is ambiguous. On every page you can find something that can be interpreted different ways. We are trying to build quality projects in this town. Remo closed the public portion of the meeting and asked for comments from the Board. Ron: I would just like to read from Erin Hazen's memo on Board of Adjustments powers and duties in -rendering its decision on all variance cases on unnecessary hardship or practical difficulty. 1. Carrying out the strict letter of the ordinance. 2. That in granting the variance the spirit of the ordinance is observed. The public safety and welfare will be secured and that substantial justice will be done. 3. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure. I think that these gentlemen have had a terrible thing happen . I am not saying that it is their or the City' s fault. That is not my position to do so. I think that everybody acted in good faith and something went terribly wrong. I don' t, however, feel that it is our position here to go against the code and grant a major extension of the FAR. I would not grant the variance on this basis. I do not see a hardship. Rick: I, too, share Ron' s feelings . I think this is a tragic case of miscommunication. It happens all too frequently. I was swayed by Dick ' s comments about the size of the impacts of the building. I feel, personally, that there is a hardship here based on their reliance . Unless I can be swayed by my associates here I vote in favor of granting them this variance because I think it is 700 sq ft per unit less than what they would be allowed under the RMF calculations . I don ' t see any other way , other them suing the City and I hate to see that happen, of giving them relief and having justice served. I am in favor of the variance. Remo: What is the basis on which you come to this decision? Rick: It is financial . It is the convention that goes way beyond the $75 , 000 . 00 architectural fees. There are--it is a snowball thing. It is all the way down the line. Josephine: The variance requested seems to me to be 500 extra square feet for each duplex. That is a lot. That makes us have to be really careful, really serious about what we are doing up here. To even think about that in terms of what you are doing through the master plan is--that' s a lot. We heard a lot about a 28 BAM6.18.87 hardship. And that was the miscommunication and ambiguity of the code . It is so unfortunate and this is a really difficult situation for us here. I feel that in any kind of miscommuni- cation, that is a misunderstanding. And that only happens when there are 2 parties. It is not all miscommunication on one side. It is both. And because of that I cannot see myself inflicting upon the City of Aspen a recommendation from us or a variance from us that is really out from the code. So I would not be in favor of the variance. Charlie : What we see here from the presentation is hardship which is strictly based on the monetary situation. And in the past regarding hardships and practical difficulties which are related to the land and related to lot lines and that sort of situation . I have difficulty in approving a variance for strictly a financial hardship. According to our guidelines , I don't feel that is sufficient evidence for me to be able to grant a variance. I do agree with my compatriots who have already spoken that it is very unfortunate that this misunderstanding-- that the reliance upon the word , I don't think is sufficient when there is information in print in the code and it is the devel- oper ' s and the architect' s responsibility to try to find out the real situation which is applicable to their case. So I would not be in favor of granting this variance. Francis: I think there is one important thing that is missing in your introduction presentation. And that is that you started this project as a multi-family which gave you the 1 to 1. And I am not sure who is responsible for the fact that when you switched from that to duplex , I don ' t know where the miscom- munication came in. I take exception to your statement that the code provisions are unclear and confusing because I don' t have to read this very often but I got my code book out and I went through it and I came up with the sum of 3 ,600 sq ft and we grant variances when people who have problems with property--the setback line , the grade , with odd-shaped lots--practical difficulty and some hardships. In my time on the Board variances have not related to financial hardship. I feel that you have other recourse and I hope you take that step and I hope you are compensated . But I could not vote for a variance on the presentation that has been made. I am sorry. Remo: There is hardly anything left for me to say. Everything has been covered. We get threats of maxing out that they have not maxed out this project and the implication is that somehow you are getting more than you are allowed by doing that. And I think if that is the case and that is the fear , then that it is a question of the legislation by the City Council to take those fears out. You should be allowed to max out and feel good about it and not feel like you are doing something bad in maxing out 29 BAM6.18.87 projects . And I don ' t like the ramifications of granting a variance as everyone has indicated on financial hardship. Although it is of a monetary nature this has not precluded denying you the property right allowed by law. You can use that property the way the law allows you to use it. The only hardship we have , because of miscommunication was the financial aspect . If you start from square one--and this is what basically this Board decides on in variances--I would be against granting this variance. MOTION Francis : I move that we deny the variance on Case #87-8 requested on the grounds that no practical difficulty or unnecessary hardship has been presented. Josephine seconded the motion. Roll call vote: Rick, no, Josephine, yes, Charlie, yes, Francis, yes, Remo, yes. Variance request denied. Meeting was adjourned. Time was 6:30 pm. Jani a M. Ca rn y, Deput City Clerk 30 ' - 114 r