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HomeMy WebLinkAboutminutes.boa.19880414 t IV IV r CITY OF ASPEN BOARD OF ADJUSTMENT APRIL 14, 1988 4.00 P.M. A G E N D A I. CALL MEETING TO ORDER Roll Call II. CASE #88-4 Charles B. Marqusee III. ADJOURN RECORD OF PROCEEDINGS BOARD OF ADJUSTMENTS APRIL 14, 1988 Chairman Remo Lavagnino called the meeting to order at 4:00 pm. Answering roll call were Remo Lavagnino , Anne Austin , Ron Erickson and Charlie Paterson. Josephine Mann, Rick Head and Francis Whitaker were excused. CASE #88-4 CHARLES MAROUSEE Remo read variance requested. (attached in records) Chuck Brandt representing applicant turned in the affidavit of posting and notice. The Marqusees are the owners of 2 fractional lots in block 1. As the application states the zoning is R-15. The lot area is some 2 ,093 sqft. It is obviously well less than the 15,000 sqft which is the lot size in the R-15 zoning. We have a non-conforming lot. However we have a legal lot. What we propose is a small dwelling which contains 2 ,086 sqft on a building footprint of 821 sqft and the dwelling will conform to the R-15 setbacks on 3 sides. But it does require 10 ft variance on what we call secondary front yard which is the unopened portion of 8th street. The square footage of the building envelope of the area that we are requesting the variance for is just about 300 sqft . The justification for the variance is that we have 2 fractional lots which were created by the way--having approximately 1/2 of the usual depth of the standard townsite lot of 100 ft--these lots don't have the depth of 100 ft . They have something in the nature of approaching 50 ft. The substandard situation was made worse in 1955 when Walter Paepke conveyed to the City of Aspen the 45 ft strip over Lots E, F, G and H is at a diagonal so it effected all 4 of these lots providing the Meadows right of way to the City of Aspen. Thus the size and the shape of the property presents special conditions and special circumstances justifying the issuance of a variance in order that the property can be effectively utilized for a single family dwelling. Chuck then showed members of the Board an aerial view of the property and photos of different views of the site to better acquaint them with the property. BAM4/14/88 The Marqusees and their architect spent a lot of time trying to figure out what would be the best configuration on a very difficult lot. All of the townsite lots have been zoned R-6 . But when you get to these town site lots that is included with the R-15 zoning. So the first thing that the Marqusees did was to assume that the property was zoned like the other townsite lots--R-6. We had argued the last time that the zoning of these individual townsite lots was a mistake in 1974 because in 1974 it was the Paepke Subdivision that had been zoned R-15 and all of those were 15 ,000 sqft lots. But even if you go through the exercise of assuming that it is R-6, we still need the same variance that we are asking for today. So even if we were the conditional townsite lot zoning we would be here this afternoon. The next consideration was without a variance what would be needed--what could be built on the property? What you end up with is a buildable area of 587 sqft footprint. Remo: As opposed to an 800 sqft footprint. You are not giving us the square footage of the whole area? Chuck: Just the buildable area. Remo: The FAR allowed is 2 ,074 sqft? It says buildable are 587 sqft FAR allowed 2593 divided by 100 times 80 equals 2074 sqft. That is your allowable FAR square footage. And the one you are asking for now is 10 feet less. Is that right? Chuck: Yes. The point is without a variance we have one side of the buildable area--it would be difficult to build a 1 car garage because of that depth and so you have an oddly configured and quite small buildable area. Hence the request for the variance today asking to go 10 feet into the 16 ft 8 inch secondary front yard. He then showed the site plan and floor plans to the Board. Here we have fractional lots created by the initial townsite map and made worse when the Paepkes granted the City of Aspen right- of-way to widen the road. The R-15 zoning here is really more applicable to the large lots of different size and different shape which are to the north of this property . Here the substantial property right in our view is the right to build a house consisting more or less of usual dimensions . It is our contention that because of the unusual shape that the size of the lot really is not a consideration because it is a legal lot . Legally these rights have been denied the owner because of the unusual shape of the lot. The only way to build a reasonable 2 BAM4/14/88 structure is to apply for this variance. The granting of the variance will not adversely effect the general purpose of the comprehensive general plan and it is our thought that given the R-6 zoning within the area this setback that we request is the one variance in compliance with the other 3 yard areas . The existence of the unopened streets, the distance from the existing residences , the open space to the north--that the impact of this variance will be minimal . Some of the neighbors have been concerned and have expressed concerns to me of a second structure being built by the Marqusees. We were here a year and a half ago for a variance on Block 7 and they built a home which they had intended at that time to be utilized by their family members and by guests. The reasons for the change are really many. The primary reason is a financial reason. They have decided that they would prefer to sell that house which they have just completed. They did not build it for sale. The quality of that house speaks to that. There has been a change in their thinking and more importantly in some of their financial considerations. The house proposed on the property before you this afternoon is because they have decided to have a smaller house. Since the Marqusees won't build on this property until the guest house sells which will be well in excess of 30 days. Ted Mularz , the architect hasn't done working drawings so he is not prepared to make application for a building permit. Under the new City code there is a change in the R-15 yard requirements. The westerly side yard require in R-15 is going to be changed from 5 to 10 feet. So my dilemma is not to waste your time and come back in 40 days and ask for another variance for that side yard but to present the issue tonight and see if there is a solution that we can agree upon. Remo then informed the applicant that there were just 4 members of the Board present that they would need the afirmative vote of all in order to get approval of this variance and that they have the option of asking for tabling at this time if they wish to do SO. Remo : You have on this drawing a driveway going right across what appears to be 8th Street and you also have another driveway on what appears to be North Street. Is this a vacated street? Chuck: No. They are unopened but legally existing. Remo: What is this driveway here? 3 BAM4/14/88 Chuck : It is the means of access that was built. The driveway was constructed to the Marqusee guest house from those roads. So this exists. And rather than to have another access to just use that existing driveway to come into this proposed house. It is a utilization of the public street which is unopened. Remo: Did I see a whole bunch of new plantings here on a berm? It is on North Street. Chuck: It is adjacent to the Marqusee property. Ron: I felt the same thing. It looked like the street between the 2 houses is now a private garden. Chuck : It is a private garden that is on a public street . Should the City ever wish to open that-- Remo: Isn ' t this fenced off--this public property from the Marqusee' s house? Chuck: I don' t believe it is fenced. Remo: Yea. There is a little garden that is fenced. Just so we clarify that and then I want the opportunity for the Engineering Department later to overview that file on what it considers the use of this land. It appears like it is being used privately. Elyse: The Marqusees in 1983 asked for a vacation of the land that is now landscaped. It is City right-of-way and they asked that the City vacate that for their purposes. The City contends that they did not want to do that because they are not sure where the access to the Meadows property will be and right now we are not sure how that is all going to be accessed. But definitely 8th Street , North Street and Meadows are a way of doing it . However right now we are leaning toward 7th Street. But the City has in 1983 taken the position that we don't want to vacate that property--that it is still City right-of-way even though it is kind of being used as a private landscaping. As far as using the driveway there on City right-of-way, that would be all right by us. Remo : What about planting of trees--they are very big--those Blue Spruces--on berms. Plus there is a portion in here that is actually fenced off that is on City street property? Does the City condone this? Elyse: We do not allow landscaping like that on the City right- of-way. I would assume that it is something that happened years ago. 4 BAM4/14/88 Remo: It is a fresh berm. There is not even any sod put on it . Elyse: Then whoever put it there should have gone through the City to get an encroachment application and be granted permission to landscape it. Remo: The reason I am asking is that it really has a bearing on your request for variance. If this street is effectively not being used that we are talking about , we are concerned about traffic here. There are other aspects of granting a variance that we have to consider . How much traffic is going to go through here? Is it going to be impeded by this passive use here? It would at least effect me in determining whether I would grant you a variance. Since no other cars would come into it effectively because it is a dead end street here that it would seem a reasonable use of that land. But if your are doing this thing--all of this stuff going on on North Street which is without City approval then I would be--I am questioning the effect of blocking off that street that adjacent property owners have used. Chuck : I know there has been discussion between the Marqusees and various City officials following the denial of the street vacation. Remo: They not only have it on North Street, but 8th Street too. They have cut a triangle on 8th Street and there is also some new trees planted there where it now actually follows Meadows Road on the angle. It doesn' t continue straight through as this plan goes but really kind of makes the turn onto Meadows Road long before 8th Street is concluded. There are a lot of trees there and effectively what they are doing is-- Ted : The Marqusees have done this landscaping with City permission. I am positive of that. I don' t have any documents to show you but I do know that there has to be some written agreement. There is a water main that runs right under the trees that were planted. The vacation wasn't successful . The City didn ' t want to do it because of the question as to how the Meadows property would be accessed . But they gave them permission to landscape. It was a mess before. It was just like an alley and it wasn ' t maintained or taken care of . The marqusees wanted to go ahead and improve the neighborhood . Consequently they did. If the City came to them tomorrow and said "We have got to open North Street, they also understand that the trees would be leveled, the curbs, gutters would be put in and the street would come through. 5 BAM4/14/88 Chuck : When they were contemplating the landscaping one of the problems that Jim Markalunas had that there was a fire hydrant in the area that they wanted to landscape in the unopened portion of North Street. And Charlie, at his expense relocated this fire hydrant down to this corner of his lot and the Fire Marshal said this is much better location for it because it now permits us to go directly down the alley. Ted: That is a strange area over there because the people are really using the alley as the access street. The alley south of North Street is being used to access. Chuck : A couple of months ago Marqusee told City Council he would give whatever right-of-way they would like to have into the Meadows property to continue 7th Street north and the City Council said yes to this and to leave Engineering to decide whether it would be 30 ft or up to 60 ft. Remo : This lot was split in 1955. My point is that when the Marqusees purchased this property in 1976 the R-15 zoning was in effect . It seems to me that you don ' t purchase a piece of property with known building code on it and then ask for a variance because the size and shape doesn't conform to the City lot and use that as a justification for granting a variance. You know what you have got when you purchase the property. And now you are telling me that you have a hardship because of the size and nature of the lot. It existed when you bought it. What can you tell us that makes it more unique than what it was when you bought it and you knew what it was like at that time. Chuck: Nothing has changed on the lot and I think on any other variance that you granted when you found a hardship of special conditions and circumstances that they existed at the time the lot was acquired. PUBLIC HEARING Remo opened the public portion of the meeting for comments from the public. Don Erdman, 915 North Street: I am an immediate neighbor . I am here representing not only myself and my wife but also Lorenzo and Joyce Semple who can't be here today but who authorized me to speak today on his behalf. I am sorry to have to be up here today because the Marqusees are very good friends , neighbors and excellent residents of the community. I am sorry they are not here but I feel obliged to speak . They have been friends and neighbors for the past 12 years . 6 BAM4/14/88 In 1986 they asked us to lend support to their application for a variance to allow construction of a small studio on Lot A through I of Block 7. Said blocks being adjacent to their principle residence and also adjacent to Lots G and H Block 1. The studio was to serve 2 purposes. A space for Helga' s art projects and a residence for their visiting children and grandchildren. We know how close the Marqusees are to their family and we supported their efforts to expand their building. In February of this year, 2 months after its completion we were shocked and dismayed by the studio being on the market with a price tag of $745 ,000. The discovery was even more upsetting because the neighbors were not informed of the fact that the Marqusees had decided to sell. Had we been personally informed of what we hear of their new financial problems we would perhaps have more sympathy for this sudden reversal of purpose. After all the small studio turned out to be 2,200 sgft, 3 bedrooms and baths, full kitchen, 500 sqft garage. We knew all along that the studio was, in fact , a full fledged single family dwelling on a conforming lot and the owners are certainly free to sell at any time they please. Now the Marqusees wish to develop another single family dwelling called a studio on what appears to be a legal residential lot. While they are certainly within their rights to build on this site, we object strenuously to granting them any variance which would increase the size of the building envelope. As we are all aware the City of Aspen has recently amended the zoning ordinance effecting the R-15 zone in a manner which will increase the side yard setbacks from the 5 ft minimum to 10 ft. The appellant is requesting not only to be allowed to maintain the 5 ft side yards but also to decrease the required front yard by an additional 10 ft over what is currently allowed. Even though Charlie Marqusee is a good friend and citizen we must not overlook the fact that he is a far more experienced developer than the infamous Mohammed Hadid having developed the town of Boca Raton, Florida. This is to say that Charlie knows his way around City Hall as can be attested by the fact that the 1987 taxes on Lots A through I amount to a staggering $84.10. This is fact . Both these lots and the lots upon which Mr . Marqusee intends to build another 3-bedroom, 3-bath house were acquired from the City of Aspen presumably at a favorable price I believe. As Mayor Stirling remarked at the Council meeting last Monday-- he--Hadid , is an experienced developer and he bought into this 7 BAM4/14/88 with his eyes open. We feel that the footprint of the residence proposed for Lots G and H has indicated on the plans prepared by Ted Mularz presents no hardship situation to be remedied by the Board of Adjustment but which if approved by the Board will redefine the meaning of the word hardship . There was no guarantee made by the City at any time that such a residence could ever be built on these lots. Ken Woodward , representing the Aspen Institute as an adjacent property owner: The Institute is opposed to the granting of this variance . We feel that Mr. Marqusee knew the size of the lots when he bought them. Also Mr. James Pavisha and I met with Mr . Marqusee prior to the building of the guest house or children' s house. At that time Mr . Marqusee said he intended that that would be the only building site with a house on the property and that he was going to landscape the rest of it as he knew at some time the adjacent property would be developed. I realize he can sell it off and the new owners could do what they want to do with it . But that was his intention at that time and Mr . Pavisha and I felt that the house where it was located was fine with the landscaping. But he did not guarantee that he would not develop the rest of the property. We feel that the granting of the setback--that there is not hardship for him. He know what the property was at that time of the development. I don ' t know what Mr . Marqusee ' s position is now but he has 2 houses on the property and that was the intent. Cynda Erdman: I would like to say I request that you turn this down as I request you turn down anything of this sort in town. I am a long-time resident of Aspen and I care very deeply for Aspen . I think this is exactly the kind of thing that is happening that we need to put a stop to. Chip Danine, 521 North 7th Street , Lots G, H & I at 7th and North: I live in the home of Lucy Hibbard. He read a letter from Ms . Hibbard as follows : "I received notice of public hearing on this application and because I am unable to attend the public meeting I am writing to express my objection to this request by Mr. Marqusee for a variance. I have lived at 7th Street and North Avenue Lots G, H & I, Block 8 for the past 12 years and have observed Mr . Marqusee' s gradual encroachment upon City property which has become more extensive in recent years. The effect of the extensive landscaping he has done in the middle of North Street is such that he has converted public property for his personal use. I feel that the City should remain vigilant in protecting its 8 BAM4/14/88 public lands and enforcing all existing zoning regulations of record. I absolutely object to this variance. " Anne: When you designate your front yard, can your rear yard be to the side? Remo: When you pick the front then everything is established. Remo then closed the public hearing. Anne : I am opposed to this variance. When we heard the last variance , we were not made aware of the fact that this was another building site that we would be asked for a variance later on. The Marqusees bought this in 1976 when the zoning was R-15 . They knew what they had ahead of them and if somebody bought the land tomorrow, we probably would say they knew what the zoning was and they couldn't get a variance . So I see no hardship here. I am perturbed about the encroachment the Marqusees have on the City property. I am concerned about the trees there. I am very upset about the guest house that we granted a variance for which is now for sale. We were told at that previous meeting that the new house would be for the Marqusee' s grown children. That is a quote from the minutes. Remo: They really have the option to do whatever they want with that land even though they said they would keep it for their children. That doesn't legally bind them to that. I don't fault them for putting it up for sale or do whatever they want with it . Anne: But that is what they represented to us and I feel that we are going right back into the same situation. Also this lot is only 2,593 sqft. My understanding even in the R-6 zone is that you can't divide a 6 ,000 sqft parcel into 2 lots and build on them and to me it is so far a substandard lot compared to the 15 ,000 sqft. The other one was half what was required and we granted that . This is 1/8th of what is required and I can't justify giving them a variance. Ron: I agree with Anne. Charlie: The only hardship that I can come up with is the fact that the street was deeded. But then the applicant bought the property after that period. It doesn't count as a hardship for his ownership. And so I wouldn't feel right about granting this variance. The property owner knew what he had and that it was a substandard lot and that he would be limited no matter what he would do with it and that would be nothing but a small building on it. 9 BAM4/14/88 Remo: I want to make sure that even the Erdmans understand that we are here to grant relief from the strict application of the City code when applicants can show us unnecessary hardships or practical difficulties in adhering to the strict interpretation of the code or they can show that they have a unique situation different from anyone else in the vicinity or zone that they are in. So when you say that you don't want to grant anybody any variances it is really unfair unless you see and hear each particular case and the uniqueness that they present to us . I think that it is the intention of Council to even further constrict the size of structures by increasing the setback confines and the greatest reasons for not granting this variance is that we still are not denying a property right enjoyed by others in the same vicinity and zone. They can still build on the property what they are allowed by meeting all setback requirements . That property right is yours and we are not denying you that. What we are denying you is on a basis that no practical difficulties or unnecessary hardships have been established. So I would not be in favor of granting this variance. Anne : If I had known back when we had the previous variance request that there was this additional parcel of land, I probably would have suggested that we combine the 2 into one property and that it would become one building site. MOTION Anne made a motion that this variance be denied. Charlie seconded the motion. Roll call vote: Ron Erickson, yes, Anne Austin, yes, Charlie Paterson, yes, Remo Lavagnino, yes. Variance was denied. Ron: On Case #85-19, Hearst/Allan on Gilbert and Monarch Street that was being torn down and we gave them a variance to put up a 4-plex although the was substandard in the lodging zone and we allowed them to build and also granted them a variance saying that they could build 4 2-bedroom units. On my way to work every day I notice that the retaining walls are 3 ft from the street. In my files he has curb, space , sidewalk then setbacks from the property line. He had overhanging balconies that were OK. We gave him a lot of things and it looks like that is not what he is building. It doesn't look like there 10 BAM4/14/88 is any room for sidewalks up there. It doesn 't look like there is a normal 6 ft setback or anything else. A memorandum in the file states that on December 11 , 1985 the City Attorney wrote to the Building Department and to the Board of Adjustments and on the variance application in this memo he states that 2 of the adjacent landowners complained that they were not given proper notice of this variance . His recommendation is that this was true. They were not given proper notice and the variance should be negated. They never appeared before us again to ask for a new application for variance. We were never able to act on this application for a new variance. I personally want the City Building Department to stop that project right now and let's get this thing straightened out. How come we were not notified of that? Remo: I don't know and not only that but we have to make sure that there were no subsequent meetings after this . Ron: To my knowledge there were none. Barry Edwards was the attorney at the time and we could ask him. I don' t want to be the cop in this situation. I happen to live there and when I opened up the file I noticed this thing and the people in Silver Shadow who list Hans Cantrup as their legal representative. He built that project. It seems if this is the truth, they don't have a building permit. They don't have a variance. And I don' t think they are building according to the plans that they submitted to us. Remo: Your first recourse is not to us. It is to Drueding. Ron: I brought it up here for a couple of reasons . We deny variances or we grant variances based on strict stipulations and then something like this happens. Anne: Does he have a building permit? Ron: Yes, he is building. Anne: Yes, but does he have a permit? Ron: Well, I assume so. I talked to the Building Department and according to them he had a building permit. He is building . I told them my plans showed setbacks of 6 ft off of Monarch Street and he has got retaining walls 3 ft off of Monarch Street and no sidewalks. They said he has every right to change his plans. Remo: He does if he conforms to the City setback requirements in the code. 11 BAM4/14/88 Ron: We didn't grant him any side setback . We didn't grant any side yard setbacks on the street. We granted him a variance on lot width. Then there was a variance of 4 2-bedroom units. Now they are only 4 ,400 sqft so he could only build 2 2-bedroom with 2 1-bedroom. So we said "Fine" . And then the balcony setbacks it looks like we voted that down . So he doesn ' t have any setbacks variances . Al he has is the ability to build 4 2- bedroom units. Remo: I don' t understand the variance of a lot width. Ron: They needed a minimal of 60 ft width and it is only 45 ft wide. And that was the key there. Anne: Is this something we should take up with City Council. Ron : No , I think we should take it up with the Building Department first. Remo: The Building Department and the legal department. Anne: I think the legal department because of their concern about this whole thing is-- Ron : What bothers me is that that was supposed to come to us and it didn't--why not? If we had gotten copies of it Anne: It says here that the building permit was being held up pending our recommendation. Ron: That was the variance Anne: Reading from file--"The adjacent owners are requesting a re-hearing on the variance application . In the meantime the building permit is being held up pending our recommendation on this re-hearing. " Ron : So in other words as far as I am concerned , I think we should follow up on this . I will do this with the legal department or the building department. Remo: I will certainly bring it to the attention of Paul and the Building Department. He may be familiar with this. Anne: Check the building permit and see what they actually are allowed to do. Are they using our variance? Ron: Another thing , they are allowed 18 months to pull the permit. 12 BAM4/14/88 Remo: All they have to do is some work within 120 days and they can continue. Ron: Yes and what they did was cut a Spruce tree down that had more than a 6 inch diameter . I notified the Engineering Department and nothing got done. This is a non-conforming lot. He has to have a variance to build anything on it . After some further discussion on this subject: Charlie made a motion to adjourn the meeting. Anne seconded the motion with all in favor`-.-� Time was 5: 30 pm. Ja ce M. Car y, City De ty Clerk 13