HomeMy WebLinkAboutminutes.boa.19881110 CITY OF ASPEN
BOARD OF ADJUSTMENTS
NOVEMBER 10, 1988
MAIN FLOOR COUNCIL CHAMBERS
A G E N D A
I• CALL TO ORDER
II. ROLL CALL
III. MINUTES OF SEPTEMBER 29, 1988
IV. CASE #88-:W/O
WILLIAM HEWITT
RECORD OF PROCEEDINGS
BOARD OF ADJUSTMENTS NOVEMBER 10, 1988
Chairman Remo Lavagnino called meeting to order at 4 : 30 pm.
Answering roll call were Anne Austin, Rick Head, Josephine Mann,
Charlie Paterson and Remo Lavagnino. Ron Erickson and Francis
Whitaker were excused.
MINUTES
SEPTEMBER 29, 1988
Charlie made a motion to approve these minutes.
Josephine seconded the motion with all in favor.
CASE #88-10
WILLIAM HEWITT
Remo read into record provisions of zoning ordinance regarding
this variance request. (attached in record).
Applicant presented affidavit of posting.
Remo: I have to remind you that we can't get into zoning
changes. Your request is for us to use R-6 zoning category to
grant you a variance and we can't do that.
Welton: What we are asking for you to approve is this specific
footprint outline for a house on this property which uses the R-6
zoning. We are not requesting a change in zoning.
Fred: You might want to amend your application to say "The
applicant is requesting to apply the minimum possible variance,
the R-15 zoning category as reflected in the footprint" .
Welton: For the record let it be stated that way.
This variance with a different applicant was turned down on
September 29, 1988 . There were some concerns expressed by 2
members of the Board of Adjustment that we come back with a new
application and a revised design. We are back now with a new
applicant, the previous owner, and revised design which will
address the concerns of those members.
The previous application addressed only the standards that are
outlined in the Aspen Municipal Code Article 10, variances that
"The literal interpretation would deprive the applicant of rights
commonly enjoyed by other parcels" . All the other parcels are
4 ,500sgft in size be they in R-6 or R-15 they have the right to
build 2, 820 sqft of floor area and they have the right to build a
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500sgft garage. These are 2 substantial property rights that are
outlined in the code.
They cannot be enjoyed on this parcel because of the special
conditions and circumstances which are unique to the parcel.
That is that these large setbacks are designed for 15, 000sgft
lots. They are not designed for 4, 500sgft lots. That is why we
cannot physically exercise our property rights because when you
take the front yard, side yard, rear yard setbacks required for
R-15, there is not physically enough left in the middle to build
the floor area and garage.
However, those Board members who were opposing granting the
variance were more concerned about the height and perceived mass.
They thought the house was too big for the site. In order to
address those concerns the applicant proposed to reduce the site
coverage from 1, 677sgft to 1, 580sgft.
In addition we reduced the height of the ridge of the roof by 3ft
by reducing the pitch of the roof.
The owner and the neighbor, John Nichol, is here to speak for
leaving the pitch the way it was because he likes the aesthetics
better.
Welton then read into the record a letter from Cathy and Tom
Crum, neighbors, stating they had no objections to this request.
(attached in record)
John Nichol, adjoining neighbor: I was in Europe on the date of
the last meeting and had written a letter to the Board saying
that I had to go on record as saying I opposed this variance. Now
that I am back and have gone over the plans with Bill Hewitt, I
think that actually this would upgrade the neighborhood and the
aesthetics of the neighborhood and for them to go ahead and do
the first plan rather than having to build a postage-stamp size
house. Therefore I have no objections for it and in fact I
endorse it.
Personally I like the aesthetics of the first roof plan. It is
going to affect me as much as anybody but I would like to see the
pitch if that means anything toward your decision.
Welton: We can't build out to the square footage that is our
property right because of the setbacks.
Rick: You are telling me that it is 1, 580. Now if that is just
1 level, why couldn't you double up and that comes out to 3 , 160--
almost 300sgft over the allowable? I say that if you put 2
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stories within the confines of that setback, you come up with
3 , 160sgft which is 300 sqft larger than what is allowable.
Welton: That is if you deny the applicant the right to build a 2
car garage.
Remo: But you don't have to have a 2 car garage.
Welton: He has a right to a 2 car garage as a property right.
It is in the code.
Michael Herron, Attorney for applicant: Normally if you took a
15, 000sgft lot and you applied the setbacks, - you- end- up with- a-
building envelope that gives design room. But by taking those
same setbacks and applying them to a smaller lot, we are stuck
with a little square that causes us to build a house right in the
middle. According to what the variance code is we are not
entitled to the same rights that other people in the same zone
district are allowed and that is a little flexibility to design
your house to take advantage of the sun, sight and anything else
that normally you would have.
Remo: But you have not met the criteria of 15, 000sgft. Why
should you not have to take the consequences of not meeting the
criteria of 15, 000sgft of lot that is required in that zone?
Michael: This is why your Board is set up. That is to address
the people who fall in by virtue of them having a smaller lot.
This is a legal lot. It is not like we came in and we created
this small lot.
Remo: It is a non-conforming lot of record. We are not denying
you property rights that go with a lot that size.
Michael: We didn't come in with a lot split and then ask for a
variance. This is a City legal lot and it is a City legal lot
that has a problem on it that falls within the criteria that you
are appointed to address.
Fred: In response to the proposition that this is--there are 2
inconsistent code applications creating an issue. I would say
that if it becomes a question of fact to you whether it is a
practical difficulty or a hardship because of that inconsistent
application of 2 codes. However I would also say that there is
no right because of the inconsistent application of the codes
that would automatically say you have the ability to either up or
down the setback requirements because of that.
Josephine: My feeling about this is that if you flip that
argument over, you come up with the idea that someone has freely
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bought a small lot. And must go with the consequences that go
with it. And we are not denying them their property rights.
Welton: The lot is not a rectangle. It is a quadrangle. There
are no right angles in the entire lot which in itself creates a
hardship. That postage stamp in the middle that is R-15 is
1, 580sgft. You do a 2 story house and you end up with 3 , 160sgft.
The FAR for all 4, 500sgft lots is 2 ,820. The garage as the code
says is a right that goes with any 4 ,500sgft lot. That is
500sgft.- That adds up to- a- total -of 3 , 320sgft. - or approximately
160sgft that the applicant does not have the ability to place on
his property because setbacks are not appropriate for a lot this
size.
Remo: So if we gave you that 160sgft using the same envelope and
either front or rear yard, that would satisfy your requirement.
Can you just extend the garage out to use up 160sgft?
Welton: I do not understand that.
Fred: It is their mandate to give you the minimum variance
possible. By virtue of your numbers you have indicated 160sgft
shortage. Taking that argument and not challenging you are
asking for a variance of 160sgft. What Remo has proposed to you
is would you take a variance of 160sgft by extending the existing
envelope whatever the mathematical value that would be.
Welton: This suggestion needs some consideration. My initial
response is that that does not resolve our problem.
Remo: Oh, but it solves the problem of your argument which is
that your are being denied 160sgft. And that is all we have to
consider.
Welton: The side yard for R-6 is 5ft. The side yard for R-15 is
10ft. This lot is 48 and 1/2 feet on this end and 45ft on this
end. Say you came in off Ute Avenue with a garage. The garage
is 22 by 22ft. You end up with another 4 or 5sgft but in that
direction to the building envelope that are unusable. So just by
granting 160 extra sqft with any envelope or extending the
envelope out, does not address the concern of being able to
utilize--
Remo: It might be in the side yard setback with that particular
garage area would give it something workable. I am sure there
are other results that you could come to that would somehow
redesign this thing that would make it work. If you can give us
an argument that you are being denied 160sgft of space, then we
might be able to give it to you by giving you a minimum variance
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and not apply it to any design criteria that you might come' up
with.
Charlie: When you turn the building a little bit off the angle
of the lot line then you come up with going into the setbacks a
little bit. But basically it is a tradeoff. If you ignore those
corners--you see this front and back it is really an equal
amount--the front and back. What he is giving up on the mountain
side or the south side that he is asking us to let him put on the
north side is about equal. But the corners I think from a
practical viewpoint because of the odd shape of the lot makes
some sense. I don't feel badly about this little bit and this is
really a tradeoff.
Anne: My observation is that by pulling this building forward
closer to Ute Avenue it is giving the neighbor at the rear a
little bit more space which I think is an important consideration
rather than pushing this building clear back on the lot where
they can, in fact, go back this far but then they are crowding
the other building.
By coming forward they are not impacting Ute Avenue as much. By
putting a garage in, they are getting 2 cars off the street which
is really important in that area. That area has the worst
traffic problem with parking. I am all for putting a garage in
to get the cars off the street if it means giving them a
variance.
Josephine: Charlie, if we grant a variance to allow them into
the side yards and this front yard space, about how many sqft do
you think that would be?
Charlie: They have a right to build it in this envelope. And
now what they are proposing to build into this here he is allowed
to use 1, 580sgft proposed site coverage and that is what he is
doing.
Remo: What is your total of square footage? It is maxed out to
your--
Welton: The house is not maxed out. The house is built to what
the code says it can be built to.
Remo: That is what I meant. It's built to what it you can build
on it.
Welton: That's to what the code says.
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Josephine: I do appreciate your efforts at minimizing that
structure. To me that represents some good faith that I was
searching for. Now I would like to hear from Francis on why is
that lot zoned R-15?
Francis: I have no idea. It is apparently appropriate zoning
for the area. In any zone district you are going to have smaller
lots and you are going to have larger lots. You buy the lot you
want.
Anne: So the lot was created before the zoning of R-15 was put
on it.
Remo: It was my understanding that this was a parcel that was
divided to R-15 lots and that this was a leftover lot.
Anne: No. This had nothing to do with the subdivision.
Rick: To answer your question, Josephine, our forefathers
decided that they needed a buffer between the R-6 and the County.
I understand that the County is just to the outside of here.
They wanted a buffer of R-15 around the City so you will see
quite often you have a County/City boundary, R-15 is the border
around and the next block over is R-6.
Welton: This lot was created and subdivided in the 19th century.
Then zoning came along 20 years ago so it just happened that
above it and to the east of it, there are much larger parcels.
In fact this area has every kind of zoning imaginable. It has
RMF, LTR, R-6, R-15, Conservation--it' s got everything. So the
fact that it has got R-15 is the result of the fact that some
larger lots adjoining it seemed appropriate for R-15.
Josephine: I may object strenuously to the way Welton worded
some of his introductory remarks but I am not that opposed to
granting a variance if we could work out a wording that would
suit me as the others. I don't like the present wording.
Welton: We are also voluntarily reducing the floor area below
what we are allowed by right. So in fact we are not asking to
max out the property. That document indicates we have cut out
97sgft and we will continue to leave out that 97sgft so that we
are not "maxing out" the house to what the code says we are
allowed to build.
Remo: Isn't it a requirement, Fred, that we get some kind of
written response from the Planning Office regarding cases that
come before us?
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Fred: Yes there is a mandate to give you comments after review
of the application.
Francis: If you look at the setback displayed on this plan--I
don't know what part of the building is fronting on Ute Avenue--
if it is a garage but it is the same amount that' s in the back
and I don't understand the need to infringe on that setback at
the front of the property because there is obviously room in the
back.
Remo: The argument was that one of the neighbors objected.
Charlie: - There is a road there. It is a private road and you
cannot access anything from a private road. It has to access
from Ute. He has no choice.
Francis: The point being I don't see the hardship to put this
piece of building out when they have the room to put it back--
slide the building back. I understand the constraints of
designing a square building rather than a rectangular building
and it seems to make some sense that the corner of the triangle
pieces that stick out to have that sort of a variance. I
honestly don't understand the hardship for the garage at all
other than aesthetics. I have never considered that a very valid
argument for a variance.
Charlie: You said aesthetics. But if you move a building back 5
or 10ft--that has got nothing to do with aesthetics. We are
talking about location in relation to neighbors and in relation
to sunshine. That has got nothing to do with aesthetics. If we
refuse a building that will end up being in a poor location for
the neighbors and will have less sunshine, I think we are doing a
disservice to the City of Aspen and to the people who are
building that house. Aesthetics is something that you look at
that is visual.
Francis: I am having trouble finding who gains by putting this
out here and why this setback. What is the hardship to vary the
setback because there is obviously room in the building envelope
they show.
Fred: It is incumbent on the applicant to put on the record
sufficient reason to justify the location of the variance he is
asking for. I don't know that we have yet on the record the
information that Francis is looking for. The answer to that
question as to why this building is pulled forward. There may be
good reasons but they should be in the record.
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Remo: They gave reasons but whether we consider them valid or
not is the Board' s determination. It is pushed away from their
neighbors. That is the reason that we were given anyway.
Remo then open the meeting for public comment.
Chuck Brandt: I represent Powderland Associates who is the owner
of the adjacent lot, Aspen Chance Subdivision. On the site plan
you will notice to the west Lot 5 Ute Addition there is an access
and parking easement. The dimensions on that are not shown but
it is in the nature of 8 to loft so there is a way to come down
what would be the westerly line so you don't necessarily have to
come off of Ute Avenue.
If that would enable the owner of the lot to come up with some
other configuration and put access off of Ute Avenue and onto the
private access and parking easement so that the garage could be
placed somewhere else than in front of the house. That is not a
major point but there seemed to be a bit of confusion as to where
access had to be.
Our principle concern is simply following the rules. I would
like to point out that the R-15 zoning was placed in early 1970.
Mr. Hewitt bought the lot in April, 1980. In a sense it is a
self-imposed hardship. If a set of rules existed and, yes, it is
a uniquely shaped lot. Although not that dramatic. The rear
dimension is 45ft and the front 48ft. The side line is 93 .9 and
the other side line is 94 . So it is a little off but not
dramatically so.
The basis for the application here is that the building envelope
under R-15 unduly restricts the use of the property. My client
doesn't agree with that. Next door he has to follow the R-15
rules. Granted, he has the luxury of a larger lot and so it
works for him but he doesn't see a reason for the variance on
this particular lot.
Secondly, it doesn't seem to us that the variance request is the
minimum request. You are asked to really grant a variance on the
front of the property and both sides rather than one side or the
rear or the front to really accommodate the concerns expressed by
the R-15 building envelope.
In thinking about this I was contrasting this lot which is
approximately 4 , 500sgft with the typical townsite lot in the west
end which are 30ft in width by 100ft in depth or 3 , OOOsgft.
Fortunately most people own 2 or 3 of those. And that gives them
some flexibility to work with the R-6 zoning in the west end and
the R-6 setbacks. But there are individual 3 , OOOsgft lots in the
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west end and elsewhere. And I am not aware that those owners
typically come before the Board and say "This is my hardship
because of the overlay of the setbacks. I really don't have
flexibility with my small lot" . What they typically do is they
restore those little miner cottages or they build a small home.
I really think that is the answer and my client thinks that is
the answer here.
William Hewitt: I am really surprised that Chuck Brandt can say
something like that at a meeting here because we have designed
and re-designed this house at least 5 times. First of all the
easement on this side of the house is 6ft and that is an
exclusive easement. And the reason why I got that easement from
Aspen Chance is (turned tape) it goes to 0 in here and I also
have a 3ft easement here. When I bought the lot from Ralph
Jackson in 1980 there were fences and there was use of a larger
piece of property. So what I originally did with H. O. Myers
when he developed this whole thing here was he gave me the
exclusive right to use this property in perpetuity because I was
using it already.
However he wanted the FAR rights so he had the FAR square footage
rights to put all over the place and I just have the use of that
land. So in fact my lot is bigger however I don't get the FAR
rights and I am in fact building a smaller house than what my lot
visually appears to be.
Remo: But you voluntarily gave up those rights so you knew that
you were going to suffer the consequences in the FAR when you
gave them.
Hewitt: And I am only asking to build my house which is
2,800sgft. The drawings that Welton drew appear to be kind of
selling drawings. They appear to be grandiose and great and
large and stuff like that. But the fact of the matter is the
house is 2,820sgft FAR.
This house right here is 7, 000ft. When I walked into the Board
and said "This guy is building a house starting in Aspen and
ending in Vail" , they said to me "He's got the right" . I gave up
my square footage rights here. I will admit that. I am not
asking for more than 2, 820.
When I originally drew the plans to this house and Gene Golub
came along 2 years ago, we drew a garage here so that we would
come into Ute Avenue and drive in here. And we were willing to
berm the whole thing and make my house a David Finn home clone of
John Nichols house and the Dingman property. In addition to that
this property here also has a 20ft utility easement. So I drew
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that and Gene Golub got together with Dick Fallan and we drew the
house. And he wanted to come in like this and that was the best
way to build the house.
Ron Garfield got together with Chuck Brandt and Chuck Brandt
knows very well about it and he is trying to say that we can come
in like this which is ridiculous.
So I had a purchaser, Gene Golub, he went down the street and he
purchased the 1010 Ute property because we couldn't get an
easement from Dingman. So then I got together with Welton and we
re-designed the same house to try and make the guy happier and
put the berm here and do the whole thing again.
Remo: When you were going to do this with Fritz Is office, you
were still within the confines of this envelope of R-15 zoning?
Hewitt: Well, we needed an easement from him. That was the best
way to please all the neighbors. So that is what we did. So
after the first deal with Gene Golub blew out which is--this has
been going on for 3 years now. Then Welton Anderson came in and
we have designed and improved the house a little bit and I took
the plans and I flew to Hawaii and Chuck Brandt knows about it
also and Ron Garfield was representing me. And I tried for 3
weeks to talk to Dingman Is people about giving me an easement
here because that was the highest and best use for the
neighborhood. And he said "No" . He said "No" in black. He said
"No" in white. He said "No" . And I asked him why. And he said
that we don't know what we are going to do with our guest house
here--see this is a million dollar guest house to the multi-
million dollar second home. And I understand that in a couple of
days this property is going to be sold.
The point of the matter is that we have sincerely tried over a
period of 3 years. The last time we came in for this variance,
we have adjusted this house many, many different times over a
period of 3 years to get into the house this way and we have
tried every single way and now we are down to our last
alternative. We have exhausted all those alternatives and we
have spent hundreds of hours designing and re-designing this very
house.
I am not asking for anything more than what I deserve. And now
we are in a situation where on Ute Avenue we have a horrible
parking problem. We have a security problem too because people
are living in trucks there. They are homeless. That is where
Ute Avenue is. You need a garage for security reasons also.
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On this side of my property is a tennis court which encroaches on
the setback. Over here is a berm which encroaches on the City's
property. This lot does not even face Ute Avenue. This lot is
now on Ute Court. So his front yard setback is flipped front and
back yard setback because he created his lot here.
Josephine: What would you say to Francis who said he couldn't
understand why you couldn't get your 162sgft maybe by pushing the
house back here so more of the square footage would be inside the
R-15 zoning envelope?
Anne: Just slide the whole house back.
Hewitt: There are 3 good reasons for that. #1 is there is
practical difficulty as Welton has indicated. When he designed
the house the lot is weird shaped and you don't get any.
Welton: Pushing it back into that funnel restricts it even more
because it is smaller there and that is the living room.
#2 is Ute Avenue. Unlike the west end, we have a problem with
sun. This is a dark hole.
#3 the tennis courts are encroaching on the setback. The fellow
who owns this lot changed the front of his house here as opposed
to here so he flipped his setbacks. And further down the road,
you have Cathy Crum' s letter--she is encroaching on the setbacks.
And she was granted a variance to build.
Remo: She had an existing building. You can't compare those 2 .
You don't have a building. You are starting from scratch.
Anne: Except that in past variance hearings we have discussed
where a garage that is within the alley setback and they wanted
to put a garage there and all the other garages on that alley
were within the setback, then we said that it was a right that
the other homeowners had and therefore we could grant it.
Remo: The ones I remember already had an existing carport on.
All we were asked to do was enclose it.
Hewitt: The point I am making is it is more the rule than an
exception to the rule in this strip of Ute Avenue that people are
encroaching on setbacks.
Welton: A thought just occurred to me that might ease your
concerns about the front vs. the rear yard setback. That is if
you are on a corner lot or you have roads on more than 2 sides it
is your choice as to what is the front and what is the back. We
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could flip this whole thing and not affect the side yards at all
but basically put the 25 ft in the back and the 10 ft in the
front.
Rick: You are not allowed to use this road.
Welton: That doesn't make any difference.
Rick: That is not your access.
Welton: It doesn't make any difference.
Anne: It has to be a public road and then you can choose which
one you want to use as your front.
Remo: Mr. Hewitt, your argument was the same one that Welton
asks--all you want is your right to build out your square
footage. I am asking you what if we gave you 160sgft more which
is your requirement and just use the same envelope but just
extend it a little further either the front or the rear? Then
you would have your right.
Hewitt: I don't completely understand what you are saying #1.
#2 I am not sure if it is the 160ft case. #3 I have hired Welton
and he is the one that is my architect and he gives me counsel.
I have also spoken to all my neighbors. All my neighbors want
the house there because that is the place for the house. If you
want to build an ugly box, walk 3 doors down and you have got
Lyle Reeder' s house which is an ugly box.
Michael: I don't think Fred agreed with me before and I still
think I am right. But part of the standards of your committee
that you are supposed to be here for are covered by what Welton
mentioned in the application and that is when literal
interpretation and enforcement of the terms and provisions of the
Chapter would deprive him of rights that other people in the same
zone would have.
And that is what you are doing. You are trying to say "This is
your box right here and we want you to be in your box" . The only
difference is that everybody else's box in the zone district is
that big and they can fiddle around with the box. It is not
Bill 's fault that he doesn't--he didn't buy the lot with a
penalty on it. That is why the City forefathers when they
adopted the zone districts decided to come up with variances and
the Board of Adjustment so that we could address just this type
of situation.
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Chuck mentioned to you a City lot that is 3 , 000sgft. Well, they
don't have these kind of setbacks. If they were in the zone
district of 3 , 000sgft lot with this kind of setback we would have
a 3ft house. The Board of Adjustment is set up and the variance
provisions are set up. You are literally interpreting by putting
these restrictions on here, you are giving him absolutely no
flexibility. Nobody else in this zone has no flexibility. If
that was the case then all the zone districts were set up so that
there was a little square, we would have a community of little
- - -squares and -we- wouldn't need-architects -and -everybody -would have
the same set of plans.
The reason that your Board is here is to give somebody relief
from circumstances just exactly as this. He didn't create the
circumstances. The zone district did. Because he bought the lot
in the zone district that is smaller than the average lot doesn't
mean he is supposed to be penalized. What it means is he comes
before you and he tries to get some kind of relief.
Fred: I agree with Mickey in the general premise that he is
saying and that is that the Board of Adjustments philosophically
to grant relief from the literal application of the law. I
absolutely agree with him there. But I disagree with him is that
there may be a right to build out your house to the maximum size
possible. But if that right is conflicted by a second set of
circumstances, then there is dilemma which you will have to
address. I don't know that you necessarily have to address this
by granting him the maximum permitted by one or another section
of the code.
What I think it has come down to is we are confused by the
substitution of zones. I think that is clearly impermissible.
What I think you need to address is whether or not if you were to
take this plot and were to examine those characteristics that it
protrude from the existing zone whether that is a minimally
acceptable variance to you that would not be a literal
interpretation of the code.
Michael: The minimum variance is supposed to be reasonable. The
language of subsection (b) says that--"So that you have
reasonable use of the property" .
We are trying to explain to you that by virtue of what is on Ute
Avenue to get a little bit of sun, we have got to be out there to
get a little bit of the aesthetics. That is beneficial to the
whole neighborhood, we would like to be out there. And to make
the neighbors happy. It seems to me that those are the kind of
criteria that you should be addressing, not a strict or literal
interpretation that penalizes everybody.
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If you force us back, the neighbor behind us is unhappy. Our
house is not as good as it could be and the City of Aspen
suffers. Mr. Hewitt is a resident of the community. He is
entitled to consideration also. It is one thing if you have all
your neighbors up in arms. We don't have that situation. We
have got one neighbor who may be selling his property tomorrow
who is up in arms. The other neighbors don't have any problem
with this at all.
Rick: Read into record a letter from H.O. Myers listing his
objections to this variance request. (attached in records)
Michael: Basically that is just his opinion. Wynn came and
bought property and rezoned in Aspen to what he wanted it to be.
So for him to sit here and tell you that is really ludicrous.
Rick: But he made concessions through the PUD process when--
Michael: For a 7, OOOsgft house that he has got up there. So
that is his opinion. He is entitled to it but he certainly is
not coming in with a humble subdivision up there.
Hewitt: Myers is making that statement that the house is too
big. The code says I can build 2 , 820. That is how big the house
is. My land is 4, 500sgft. I have use of 5, 300sgft. I am only
using FAR for 5, 300sgft. It doesn't matter if he says the house
is too big or too small. It is what the code says. Those are my
property rights.
Welton: I was working for Hagman, Yaw 3 years ago when Gene
Golub came into them to see what they could do with the property.
Hagman, Yaw threw up their hands and said "You cannot build a
house on anything within these setbacks, it is physically
impossible" .
I got the drawings from Fallin of their studies of the property.
What they wanted to do initially was to go for re-zoning to--the
zoning on the other side of the tennis court which is R-6. But
the tennis court itself is zoned R-15 and it doesn't conform to
its setbacks either.
Rick: Hagman, Yaw designed a house on a lot that was 1, 100sgft.
This is larger than 1, 100sgft and they assigned a house nicely on
that and it came before our Board and was approved. So I
disagree with that statement.
Michael: But Rick, 1, 100sgft lot gets X FAR. If the setbacks
were such that they were 25ft on each side you would have to do
14
BAM11. 10.88
something about it. We have the FAR. All we are doing is-the
variance section only says that you are entitled to vary
dimensions. That is not FAR. You don't have the right to tell
somebody "Now build a smaller house" . This is his right as a
matter of law. That is why you are here.
Remo: When I give you that right, then I get into architectural
problems. When I tell you that I will give you the 160sgft by
extending the front or the back to use up that 160sgft then
Welton comes tome and says "If we put a garage in here, we have
X amount of"--then it sounds like an architectural problem.
There is your relief. There is your right. We have given you
your right. Now you are telling us that is not enough.
Michael: What we are telling you is that the code says that you
are supposed to give the minimum relief that is reasonable.
Welton says 160sgft is not reasonable. That ends up giving us a
house that is not the best house for the neighbors or for Mr.
Hewitt. Aren't you supposed to accomplish the right result? Not
just the minimum?
Remo: That is a subjective point of view in many cases.
Michael: It is going to be based upon whether you think you are
doing the right thing.
Remo: That is our minimum. That is all we have to give you.
What you do within the confines of getting your right has to do
with architectural creativeness. We are not subjected to that.
Michael: But you are not adding the word "reasonable" to
"minimum" . That is what this code says.
Remo: Well, what is reasonable? We have given everything we are
allowed to do on that.
Michael: You just can't sit back and make a decision by saying
"It is the minimum" . I think you have to sit back and say "That
minimum is reasonable" .
Hewitt: I don't think it is reasonable because you are forcing
me to build an ugly box.
Anne: If you pulled this exact footprint back loft what would be
your problem?
Welton: It would be John Nicholls problem. Our problem is that
we would like--the R-6 setback is greater in the rear than they
are in R-15. Initially we had planned on having a second story
15
BAM11. 10. 88
deck and a deck can project a fraction of the way into the
setback if it is candoliebered. The intent was to candoleiber a
tad over the R-6. If we pulled it back, we could do the same
thing
My suggestion was going to be--we have heard the figure 160sgft.
I cannot respond to 160sgft. I would like to have some time to
do some studies and see what we would end up with. I would
really like to make a good faith effort in moving it back away
from Ute Avenue so that you will feel more comfortable with an
application for minimum.
Remo: I would also like the Building Dept. to verify any figures
that are given to us by the applicant to make sure that it
conforms to what you are denying in terms of a variance that is
being requested. Francis, would you have them do that?
Fred: We can give you a letter that we analyze the plans and
determine that there is a setback violation and that if you were
to take the plans as presented, there would be a setback
violation of X number of square feet based upon the R-15 zoning.
Welton: Based upon the way this house is laid out there are
certain areas where it is beyond the setback and certain areas
where there is buildable land and is not occupied by a building.
Are we only counting stuff that is outside and not deducting
stuff that is inside?
Remo: Yes. At this point, yes.
Remo: The argument I have heard are regarding light, sunshine
and the neighbor. And the neighbor is up against the mountain
even moreso. So he is deprived of more light.
Nichol: I would like to have more space between me and them.
Josephine: You know very well that we grant a variance because
there is a practical difficulty or special circumstances. The
way I see this request is that the practical difficulty here is
the setbacks required by R-15 zoning. That is the practical
difficulty. So it is important that your figures tell us what
you need besides the square footage--what square footage you need
outside of the R-15.
-Charlie: - If you move this building back in its configuration
right now it seems to me that perhaps these 2 corners will then
stick out beyond the R-6 and how would the members of the Board
feel about that? I think he has made an effort to stay within
16
BAM11. 10.88
the confines of the R-6 so that he is only talking about front
and back and the little corners.
If that moves back and this is smaller on this end than this end
then these 2 corners will stick out. Does the Board feel that
will be something that is not in his favor?
Welton: Right now these corners are 5ft from the property line
and if we move it back--
Remo: Would you be willing right now to accept this as just move
it back to this rear yard and we will give you the variance?
Welton: Yes.
Remo: Then maybe the Board should consider that now instead of
tabling it.
Anne: In other words, move it back 10ft?
Remo: Whatever. To the rear setback line whatever it is.
Nichol: Then you have got an 'unhappy camper here.
Charlie: Supposing he went half way?
Fred: Let's take the first plan.
Hewitt: It really doesn't make that much difference to me. I
have a neighbor, John Nichol, next to me which it would benefit
to have the house away from the back so they could get more
light. It would just be more beneficial to them. And I would
like to make my neighbor happy because I gotta live with them.
Remo: It is a requirement of this Board to grant you a minimum
variance.
Charlie: If we do a straw vote, we are still able to move in
either direction. But at least it gives us a picture and you a
picture of where we stand.
Remo: All those in favor of granting a variance of half way
between the rear yard setback.
The members were not in favor of this.
Welton: I ask for a vote on the application as revised that the
house is pushed back to touch the rear yard of the R-15 setback
according the revised plans as presented today.
17
BAM11. 10. 88
Can we keep the more aesthetically pleasing roof?
Nichol: It seems to me that there is an impact by moving it back
loft is greater on me and on Chuck's client than the impact of
allowing it to be closer to Ute Avenue. So I don't exactly
understand why it is more favorable to move it back toward my
property and his property than it is to let it go back out a
little bit toward Ute Avenue.
Fred: The answer to that is that it is the Board' s mandate to
give the minimum reasonable variance. If you take the setbacks
and you put this floor plan in here, in order to give the minimum
variance it must stay within the maximum extent possible within
this internal boundary.
It may impact there and impact you but it is the minimum variance
within the strictures that they are working on here.
Anne: It is the least amount of square footage outside of that
envelope by pulling it back.
Fred: I suggest that if the vote now is to pass that you make it
on the condition of approval by the Board of
Welton: We would like to know whether the agreement of moving it
back--the reduced square footage on the ground floor is something
that he would like to not do. We came back here with reducing
the square footage and reducing the height because we perceived
that as answering the concerns of people who voted against last
time.
Remo: That was a strong concession on my part for granting you
the variance right now to move it that way. If you want your
additional space, I would lower my hand. You might still have a
4 to 1 vote in favor.
Welton: Could we get another straw vote saying if we are allowed
to retain the 97sgft.
Fred: What you are asking for is a variance that is protruding
from the boundaries of the R-15 zoning to the extent that the
vast majority of this 97sgft is now protruding from the balance.
I think it is a question of wording and that is a good point for
you to bring up. Because if that is the case, I don't know that
I don't think you want to dictate what he can or cant do with
respect to the permissible zoning.
18
BAM11. 10. 88
Remo: Except that he presented that to us in a form and we are
accepting it. Now he wants it back because -we have granted him a
variance and I would be against that.
Fred: And the variance was conditioned on that.
Remo: That is right. This is a straw vote to decide whether to
allow the extra square footage or denying it. Those in favor--
Hewitt: I really resent that you use the term extra square
footage. That is what I am entitled to by code.
Remo: If you want to be entitled to it, then that is fine. And
I will tell you that I will give you 160sgft in front of this
building and you will have your right and you will have a square
box. You know, we are making concession too here. We are
allowing you to manipulate this building to get it out of the
square box and with that we are modifying something that you
think is your right and it is your right and we will give your
right if that is what you want but we will give it to you under
our terms, not yours. We will be satisfying that right and you
will have to design your house within the square box. If you
want that, then we will take another vote.
Let' s take a straw vote on the extension of the square footage.
Josephine: I couldn't vote for this unless I have a drawing. If
we are now taking a straw vote that would include this as part of
the house then I would like to have square footages and a picture
before I vote yes on that. Go ahead if I am the only "no" vote.
Remo: Well, I expressed to him that I would say no.
Anne: I would also say no.
Welton: Could we also get a feeling from the Board as to whether
we could return to the roof line as originally presented.
Remo and Josephine had no problem with that.
Welton: We would be most happy to have the question come to a
vote with the drawings to be submitted as described in the
minutes of this' meeting that the house will be pushed as far to
the rear R-15 setbacks as possible.
Charlie: Am I clear now that the vote is not to increase the
square footage? Because I am against it also. But it is OK for
him to go back to the height of the roof.
19
BAM11. 10. 88
Welton: With the deletion of the 97sgft as shown on the--
Remo: You have that height limit by right. We can only take it
away if we modify the variance to exclude that. I don't think
the Board is concerned about that.
- - - - - - - - - - - - - - - -
Remo then closed the public hearing.
MOTION
Anne: I move that we approve the amended request for a variance
on case #88-10.
Charlie seconded the motion.
Fred: Let me suggest that the motion should be as follows: That
we move to approve the application of #88-10 conditioned on the
amended application reflecting that the project is to be moved to
the north or to the rear of the property to the extent that it
touches the rear boundary line for the R-15 zoning and that the
application include the deleted portion--that the deleted portion
remains excluded from consideration in the total FAR of this
building.
Anne then amended her motion to include the conditions suggested
by Fred.
Charlie amended his second to the motion.
Roll call vote: Anne Austin, yes, Rick Head, yes, Josephine
Mann, yes, Charlie Paterson, yes, Remo Lavagnino, yes.
Meeting was adjourned. Time was 5: 45pm.
Ja ' ce M. Carney, D uty e
20
s ,
Date: l V g7
Case No. : QQ, p
Appellant: /11 --�t-11
Address :
Owner: Prone:
Address :
Location o*
Pro erty:
(Street and Number of tuob
ubdivision Bloc}; and Lot No, )
Building Permit Application and prints or an y
must accompany this application,
CASE, No. : and will be made epaPtrotfnent data
THE BOARD WILL RETURN THIS APPLICATION IF IT DOES NOT CONTAIN
FACTS IN QUESTION, TAIti ALT, THE
r
DESCRIPTION OF PROPOSED E'XCEPTIOrr SHOVING
JUSTIFICATIONS
i
you be represented by counsel? Yes _� No
(Applicant ' s Signature)
PROVISIONS OF THE ZONING -----------------------------------
FORWARD THIS APPLICATION T ORDINANCE REQUIRING THE BUILDING INSPECT
GRANTING: CAT_ON '?'0 THE BOARD OF AD,7UST^fEr7T AND �. OR TO
R..A.,O:�? FOR
SEE ATTACHED
Sto tu s W> i I
Signed �
PERMIT REJECTED, PATE \�
DFCISTO'�T
APPLICATION FILED DATE
DATE OF HEARTNG
par T_LED
SECRETARY
I
PPVi
PROVISIONS OF THE ZONING ORDINANCE REQUIRING THE BUILDING
INSPECTOR TO FORWARD THIS APPLICATION TO THE BOARD OF ADJUSTMENT
A REASON FOR GRANTING:
Property is located in the R-15 zoning category . . The pre-
existing, non-conforming lot is 4500 sgft. The applicant is
requesting to apply the R-6 zoning category setbacks, Chapter 24 ,
Section 5-201D, instead of the R-15 zoning category setbacks ,
Chapter 24 , Section 5-202D.
Setbacks R-6 Zone
Front/Rear Yard (ft) Total of 30 2-15 Zone
25 Front
Side Yards (ft) Min. of 10 10 Rear
Total of 10 10
Min. of 05
CATHY CRum
991 Ute Avenue
Aspen, Colorado 81611
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ROO B'!':.,EF.'O:::: TELECIDPIER 7010
ASPEN CHANCE , INC .
Novem6er 11, 19H
The City cl Aspen Board of Adjtistment
130 south Galena St.
Aspen, I'-.olorado 8161 1
Attention: Remo Lavagnl rrnan
TI-Is is in response to the second variance request regarding the set back lines C
Lot 5 LITE Addition, City of Aspen which is adjacent to Lot # I in the Aspen
Chance Subdivision and zoning change from R-15 to R-6.
I still oppose the variance request for the fc.!owIng reasons:
1. The size of the house when placed on the lot is still out of scale, as compared
to the other houses in the area, (Le. too mucl, house, too little lot).
2. The varlance allbws the house to be built closer to Lot # I of the Aspen
Chance SUMVISIOT) thereby reducing the green space between the houses,
3. The front of the house on the Hewitt lo+ —,ould xtend in front �f any house
constructed on Lot # 1. All the houses t.n UTE Ave. now have front set
backs and this variance would create an eyesore If allowed.
4. The variance request in no way ties to the architectural -plans and if their
variance was granted they have no obligation to build the house as drax,n.
Most important, the applicant is not being deprived of any enjoyment of his
property rights If t>~, -8r1--PCe Is not granted, he simply has to build a smaller
house that confortrSt Ttl'� existing zoning. The Board should not he sympathetic
to this request because the applicant knew full well the rules he had to follow to
build a house on lot whenever he purchased the lot.
Thank you for your consideration for resection of the variance request for Lot 5,
UTE Addition.
Sincerely,
H.O. Myers
President
HOM/Eg