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HomeMy WebLinkAboutminutes.boa.19890323 CITY OF ASPEN BOARD OF ADJUSTMENT MARCH 23, 1989 4.00 P.M. A G E N D A I. CALL TO ORDER ROLL CALL II. THOMAS H. DITTMER CASE #89-4 (CONTINUED) III. TERRI SCHIFF CASE #89-5 IV. JACK BARKER CASE #89-6 RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT MARCH 23, 1989 Chairman Remo Lavagnino called meeting to order at 4: OOpm. Answering roll call were Ron Erickson, Anne Austin, Rick Head, Josephine Mann, Charlie Paterson and Remo Lavagnino. CASE #89-4 MR. & MRS. THOMAS H. DITTMER Fred Gannett: What I have is a memorandum I would like to have entered into the record dated March 22, 1989 from Alan Richman in which Alan essentially agrees with those interpretations and gives a written opinion as to definition of pergola. Based on this and based on some other information contained in the memorandum, it appears that the applicant does not need a variance for the FAR but I have not received nor has the Clerk' s Office received a formal request from the agenda. Remo: But he is not here. Fred: You could take it as tantamount acknowledgement that there is no need. I would just suggest as courtesy that we table it. We could check with it and get back to you. That keeps it alive if there is need. MOTION Ron: I move that we table this case #89-4 to date certain of March 30, 1989. Charlie seconded the motion with all in favor. CASE #89-5 TERRI SCHIFF Remo read variance request as attached in record. Applicant presented affidavit of posting. Marty Pickett, representing applicant: Roger Kerr, architect for applicant: Marty: The existing building is non-conforming. By the picture you can tell there is an unusual roof overhang. Currently the roof itself is non-conforming and projects a little into the other property across the property line. What Terri would like to do is put a slight addition along the sides of those two walls remaining underneath the existing roof overhang. Terri also currently owns the adjacent property and it is being remodeled. The architect has been real sensitive to wanting to BAM3 . 23 . 89 bring this addition out by making this indentation so that still they have what would be the setback between the buildings. There are some Spruce trees there that they are obviously trying to save and will save. All the neighbors have responded really positively. They did not feel that they needed to come today. We did get a comment from the neighbors directly across the street that we would assume to be the most impacted saying that they are in support of this. That is from John and Katherine Snyder. Roger: The addition fits under the existing roof. Also in the center of that model there is a little wooden stairway which is a new stairway that is proposed to replace a non-conforming spiral stairway. They won't allow us to do any renovation at all to the upper floor so by adding out under the roof, we gain enough room to do a new stairway and actually improve the accessibility to the upper floor while still keeping to the same roof structure. Charlie: It is still a circular stairway but it is a wider circle? Roger: Yes. It is a circular stair that conforms to the building code. Remo: What is your hardship? What are your practical difficulties? By right you have a property right that you are exercising now and it sounds like an expansion of space. You can still do it within the confines of your setbacks and still have some buildout without infringing. It sounds more like a convenience rather than a necessity. Marty: I think really what the response is according to the code is where it says "unnecessary hardship or practical difficulty" . It seems that we are really more in the practical difficulty. We are more in the practical difficulty because of the architecture and structure that exists. Roger: The intent was to not increase the bulk of the project. We had a huge amount of wasted space under that existing roof. We thought if we enclosed that we would be keeping basically the same bulk without trying to come out into the front yard or the other side yards. So it was like a practical difficulty. Remo: I guess my point is that you don't have to expand. Why are you expanding at all? If you need more room it seems more like a personal item rather than a right of the property itself which you are exercising now by having a structure on it. So I am trying to find out what makes yours so different that we 2 BAM3 . 23 .89 should grant you this variance that other people are enjoying the same property right as you are. Marty: I just think it is the configuration of this property of the structure on the property. Apparently this structure was built by an X mayor years ago and I think there were some illegal things done and variances were granted at that time which has created some problems in the design features itself. Terri Schiff: The stair case is really a problem. I am skinny and I can't get up that staircase. It really is a hazard. The insurance company came and looked at it. They don't want to give me insurance on the property for the upstairs. The staircase as you look at it--a heavy person could never get up it. It is really a fire hazard. Remo: The site plan doesn't show where you are going to put the staircase. Roger: Showing plans: This is the existing staircase. It is pitiful. You can see the hole in the ceiling is barely enough to crawl up through it. And so when I first met Terri this was our biggest problem was how to solve this stairway. Everything we tried we just ran into roadblocks. So eventually we started looking at this other space. It seemed like a natural to just enclose underneath the existing roof. If we did that we were able to work in a nice stairway there that would accommodate the code. Remo: This is the new stairway? Roger: Yes. Remo: Does that go into this setback area? Roger: This is an addition right here. This part here and this part here. This goes into the addition. It starts down here and goes into the upper floor here. Remo: Oh, the upper floor is here. So then why do you need all this here? Here is your setback here. Why don't you just cut it off here? Then you would have all the room--what I am saying is that there are architectural ways you could cut off those areas and not even come to us. . Roger: Let's look at it another way. The intention is to keep the bulk of this building as small as possible. What our legal option is is we could come out here and build out into this area here. But it is not going to help that objective of decreasing the bulk. It is going to make more bulk. 3 BAM3 .23 .89 Remo: But you are allowed that. We are not trying to take away anything of your right because that is what she will tell us that we are infringing on your right. Roger: We took the practical approach to it. We knew that this wasn't an allowed right. But practically, it is what makes the most sense for this piece of property and for the property next door. And we knew we were pushing it a little bit to ask for this variance but we thought it is a better building to do it this way than to try to add on out on the front. Remo: I am suggesting that you don't need all of that space. What we are talking in that particular area is a closet. Marty: The FAR in this--we are still-- Remo: We are not denying you the FAR. You could build in the front of the garage. Ron: I would like to know what the FAR is. What is the current FAR? Roger: 3, 666sgft. That is what is allowed by code. We are proposing to end up at 3 , 200sgft. Right now we are at about 2,500sgft. So it is a pretty minor addition but it does accomplish making it a workable floor plan. Remo: But that doesn't prevent you from maxing out the FAR in the future anyway on the property. Roger: Except that this is what she wants. Remo: But it still doesn't deny the property owner the right to max out on his FAR. So we are not taking a property right away from a future owner. The folks who owned it before and then she bought it. It suited his needs and now it has to suit her needs and maybe a new owner would have other needs and he would still have the right to maximize his FAR. Roger: It would be another 350sgft which wouldn't--wherever you put that it is not going to have a big impact. What we are saying if somebody took this addition and put it on another part of the building it is not going to be as good a project as what we are proposing. Marty: We are trying to meet the spirit of the code where it talks about bulk in the land us a code. We are talking about the minimization of bulk. The second thing is the practical difficulty of the architecture we have and trying to analyze 4 BAM3 . 23 .89 again the visual impact and the practical difficulty of any other kind of addition. Since we are already non-conforming it has the really unusual roof overhang. It just makes more sense. And we still meet all the standards of the code. Remo: You still have not answered my question which is why you need that extra space to get up the older stairway especially on that one side. Architecturally I would assume you need to solve problems like that within the setbacks. Marty: I am saying that I think we can. What I am telling you is that it would be much more impractical. And that is the code criteria that I am talking about. Remo: I am still using- your design--your roof--and just -cutting off that corner which puts it in the setback. Terri: I think a bedroom has to have a closet or it is not a bedroom. If you do that, neither of the bedrooms upstairs or downstairs will have closets. There is no other place to put that. You have a lot of lost space because it is an A frame. I have been working on this for 2 years with Roger and have spent a fortune on this. There is just no other way of doing it. This house is structurally--you can't do anything else with it. We have even had engineers come out and look at it. We have got a real problem here. And there is no other way to do it. You have to have a bathroom. It is necessary to have that corner. My roof is there already. My deck is there already. I am taking off part of my deck so I am giving something back to them. I have created a whole project next door that is close to me apportioned to design to make everybody happy and I really think if you really look at the studies that we have done the project is a betterment for everyone. There is no way of cutting that corner off. The whole project would go down the drain. Marty: One of the things that Fred was raising was the possibility of doing a lot line adjustment. Remo: Well, if I were in favor of this variance, I would make it a covenant that nothing be built within at least 20ft which is the minimum amount between the 2 structures. Ron: You mean a deed restriction on the second lot? Remo: Oh yes, absolutely. Terri: We would be willing to do that. That is one of the reasons this was designed this way. 5 BAM3 . 23 . 89 again the visual impact and the practical difficulty of any other kind of addition. Since we are already non-conforming it has the really unusual roof overhang. It just makes more sense. And we still meet all the standards of the code. Remo: You still have not answered my question which is why you need that extra space to get up the older stairway especially on that one side. Architecturally I would assume you need to solve problems like that within the setbacks. Marty: I am saying that I think we can. What I am telling you is that it would be much more impractical. And that is the code criteria that I am talking about. Remo: I am still using your design--your roof--and just cutting off that corner which puts it in the setback. Terri: I think a bedroom has to have a closet or it is not a bedroom. If you do that, neither of the bedrooms upstairs or downstairs will have closets. There is no other place to put that. You have a lot of lost space because it is an A frame. I have been working on this for 2 years with Roger and have spent a fortune on this. There is just no other way of doing it. This house is structurally--you can't do anything else with it. We have even had engineers come out and look at it. We have got a real problem here. And there is no other way to do it. You have to have a bathroom. It is necessary to have that corner. My roof is there already. My deck is there already. I am taking off part of my deck so I am giving something back to them. I have created a whole project next door that is close to me apportioned to design to make everybody happy and I really think if you really look at the studies that we have done the project is a betterment for everyone. There is no wai of cutting that corner off. The whole project would go down the drain. Marty: One of the things that Fred was raising was the possibility of doing a lot line adjustment. Remo: Well, if I were in favor of this variance, I would make it a covenant that nothing be built within at least 20ft which is the minimum amount between the 2 structures. Ron: You mean a deed restriction on the second lot? Remo: Oh yes, absolutely. Terri: We would be willing to do that. That is one of the reasons this was designed this way. 5 BAM3 . 23 .89 Remo: Well, that part doesn't even count because you are still 23ft away and that is all we are concerned about that that remain a minimum of 20ft. Terri: We are deeding from this property to this property that no fences will go up. That no other structures ever can be put up in here. This will not change. This is strictly going to stay the way we are designing this. Remo: We will put that in as part of the covenant. Remo asked for more comments or questions from the Board. Charlie: Supposing you did not have this--can you show me the present walls of the master bedroom what you have now? And where is the closet right now for that bedroom. Roger: It is tucked under that roof. Charlie: And then the stairway is here and when you cut. This is the new walk-in closet right here? Roger: Yes. Remo opened the public portion of the hearing. Joe Krabacher, representative of adjacent property owners to the west: I would like to submit for the record--we don't have any great objection. I guess what we would like to do is have you consider some of the facts that may be relevant in your determination. There is presently a quiet title action pending with respect to this parcel here which is designated as overlap. So the dispute over this portion here the Aspegren's claim ownership by adverse possession. Dr. Barnard conveyed out of 2 parcels and they overlap. I am not concerned about this side and the corner and the master bedroom and what you are talking about. We are more concerned about how the side yard setback effects--or actually it is a rear setback that effects this expansion on this particular corner here and to the extent that it increases the non-conformity. Remo: Is it under litigation now? For adverse possession? Joe: Yes. Terri: I have title insurance. They didn't have title insurance. It has nothing to do with this. What has happened is 6 BAM3 . 23 .89 3 title companies say that this is mine and there is a dispute right now along this property that this has nothing to do with what we are doing over here. Charlie: That is right. Joe: I think where there is a legitimate dispute, I don't think it makes a difference who has got title insurance. Our title insurance company was just a little bit smarter than theirs. Hers is the one who is on the hook. He conveyed out our property first so she is claiming title by adverse possession. We estimate about 650sgft. Joe then presented a letter for the record. Charlie then read the letter into the record. (attached in record) Marty: We knew that was an issue and we weren't trying to just ignore it. But it really isn't an issue before you today. We know that if it effects FAR we are still at least 500sgft under the required so it should not be an issue. Remo: Except possibly the new addition here might infringe on the setback. Terri: You have got to understand that they are 12ft below my lot. And this is the roof of their house. And what I want you to understand is that the grounds are 12ft below. I groom for them. I take care of it. Remo then closed the public portion of the meeting. Josephine: They desire to expand without adding bulk. This is not a very strong one as far as I am concerned. #2 , the configuration of the house. That is one that we do have to consider I think. The 3rd one is the staircase. And we would definitely like to help out in remedying that situation. I guess the next thing I want to say is that when enlarging a non-conforming structure to this extent of 800sgft and with the setbacks as close as they are I would feel that the practical difficulties would need to be very, very strong in order to merit us going against what the code says very clearly. So at this point my thinking goes that I would hope something could be figured out around the staircase situation. Ron: Let it be known for the record that since everyone is back, I can't vote. But we are talking about bulk. I always felt that bulk was a 3 dimensional ,type of expression or term and the way I 7 BAM3 .23 .89 look at this addition, I think that adding 750sgft, you are maximizing the bulk on this building. 350sgft per floor and I think this is maximum bulk increase. I don't see a hardship so I wouldn't grant the variance. Anne: I have to agree with what Ron just said. Charlie: I don't see the hardship of it as much as I see the practical difficulty. I really feel very strongly about the stairway. What I see here is a solution which seems to fit the bill. And for that reason because of that stairway I don't see how else they are able to do very much. I would like to see the bulk reduced. I am always trying to look at--is the City and the neighborhood served by what is being proposed. By looking at this proposal I would be in favor of it for the reason that it is served well. The walls right now aren't insulated. They are going to have to rebuild the walls anyway. They have a practical difficulty that is very serious with that stairway. The upstairs is almost useless to someone if you can't get up there or come down. A hole in the ceiling to kind of crawl through is not something that I consider a liveable situation. So I would be in favor of this variance for the simple reason that they have a very strong practical difficulty. Remo: It would be more interesting to give them the variance on this side than on this side. This is where the stairway starts. This is the part of the variance too. So in this particular area--they don't need this extra space. We are giving them a closet. And she says she needs a walk-in closet upstairs that is huge. Charlie: But you can't get to the stairway in that little space. Remo: I am still using the guidelines of the setback. Charlie: But it is not practical just to build the upstairs--to give them the space upstairs and not downstairs. Rick: They could still do this without coming to us for a variance. Charlie: I feel it is a minimal request. Solutions are OK in a half hour meeting to look at something through an untrained eye. What we have to consider is is it a practical solution and is it a practical difficulty. That is what I am contending here. We 8 BAM3 . 23 .89 have here a case of practical difficulty and suggesting that to lop that off is not a practical solution. Remo: Let me go a step beyond that. It seems like they are taking a space away from what they used before and redesigning that. So why couldn't they re-design within the confines of the setback? We are using what they have presented to us as an argument for stairways upstairs but if you put it somewhere else then you wouldn't have that problem. The problem was created by the architect who put the staircase there and not by us who have to solve the problem. Charlie: But you have to go one step further. It is not necessarily the architect. It is also what is in the nature of the building there right now. Remo: Again, it seems to me that there is enough room in the additions that they have made here. There is a whole walk-in closet upstairs. Anne: The only requirement as far as that staircase is if they are going to remodel they have to change the staircase' s landing. It has to be brought up to code. But this is not the only house that has a spiral staircase that is used day in and day out in town. And if we were to say everyone that has a spiral staircase has a hardship and therefore can add an encroachment in order to resolve that, that is setting a precedent. Charlie: I know what you are saying but you can't improve a building and leave the old stairway. There is no way you could do that. Anne: There is other space within this property to expand. They can expand on the front. It is not practical or in their best interest maybe financially and whatever else. They are trying to maximize this property by remodeling it. Charlie: What I see it is not in the building's best interest to stick the stairway on the outside or on the back side. I am just looking at what I see here. Rick: The bulk thing could be added somewhere else. I disagree with the architect that it is not expanding bulk because it certainly is. The problem with this encroachment is there are other possible solutions available to pursue. And I think I am leaning towards denial at this point. Remo: There are other solutions to satisfy the needs of the applicant. 9 BAM3 . 23 .89 Remo then re-opened the meeting for public comment. Marty: I would point out the real need for insulation. When you talk about the bulk, I don't believe we meant to say that we are not expanding bulk but 'we are minimizing bulk by putting the addition in this configuration rather than out somewhere where it would be a visual impact on the neighbors and the community. That is what we are trying to do with this is remain in the spirit of the code. As far as the spiral staircase, you are right. This entire 2 year process has been Terri's intent to try and house her elderly Mother who can't certainly not get up and down with her nurse. Remo: Now you are introducing something that was not brought up in the meeting. We can respond to that too because we have had people come to us with that and sold the house right after we have allowed that. Terri: That house was designed that the stair steps hold the house up. There is a beam all the way through the house. Then everything goes down like an A frame. We have spent a fortune in time trying to figure this out. If there was any other way, I would spend the money and put another addition any other way. But we have had several architects and engineers and there is no other way. This is the hardship. What I am trying to talk about is the staircase and the structure. The structure is like an erector set and if you could see downstairs and the way the cement is, the structure will not hold it and there is no other possible way of doing it. I have a hardship. Anne: But you bought that structure knowing that there were problems. Terri: I did not know that I could buy something that the stairs would cause me an insurance problem. No, I did not buy that knowing that. I did not buy the structure knowing that I was going to have my Mother terribly ill. I am not moving and I am building next door. I have done a project that is going to be actually beautiful to work into this whole thing. I would not have gone to all this trouble if I am not going to do as I said I was going to do. I have a real hardship here. I like my house. I like my neighborhood. I don't want to move. Charlie: I will say your property is very nice--what you have done. Terri: I have put a lot . of money and time in doing it. It was 10 BAM3 .23 . 89 real shabby. The thing of the matter is that I really would like to live here and there is just no other way I can do it. Roger: It is so structured around a technicality that is supporting the code. But the code was written as an interpretation of what they perceive when they drive by a house. There was a lot of work done on bulk. That is why the code was changed as to control the bulk. What we are proposing here is exactly along those lines. I think the Board, except for Charlie, has totally ignored the fact that we are staying under an existing structure. All we are doing is bumping out the walls. I am not saying I am the greatest designer but I spent a lot of time analyzing the structure. What we are proposing really suits that structure. If I had to take that square footage and try to find another place it would be practically impossible. I don't think the Board has recognized that. Josephine: I cannot support what you have just said because my feeling was quite different. It is so close to neighbors--so close to the edge of the lot line. I just think you are making a huge request of us that we can't do. Marty: That is why we would be willing to do the deed restriction on the property next door where they have designed that with this variance in mind. Terri: The trees are 30 to 40ft tall that are in there. They are never coming out of there. We have so many things that we have worked on to make this so perfect for everybody to go along with it. Roger: What people are looking for is the distance between buildings and how big buildings are. This is the roof on it that is a certain size and that is where I see the bulk of this building is when you see that big roof and what is underneath it has less of an impact to me than putting another roof out somewhere. Ron: . You have got a really big front yard but if you lose anything at all in the back you are in violation in the rear yard setbacks too if you lose that piece of land that is under litigation. So this is a house that is much too big in all ways from what should be on that lot as interpreted by the code. I think you are asking us to recognize that and ask us to let you increase that. I don't think anyone is saying you can't maximize your FAR and keep that overlarge structure there. Personally I would say remove it. Put something else up. I really think it flies in the face of where we are going with the code. And you 11 BAM3 .23 . 89 want us to increase it. I agree with Joe. You are really asking for a lot here. Roger: My response to the is what is the alternative? The alternative is to add another roof somewhere. Ron: Or find a better house that suits you. The alternative is to add an addition where you can add. There are a lot of things you can do. Roger: There is nothing we can do that won't increase more roof unless you allow us to do this. Fred: You can't increase the non-conformities. The only non- conformity they are really dealing with is the protrusion. That is the only part they are asking for a variance for in the setback. Anne: That is the highest point. It is so massive. Ron: It is the highest point. I drew a line on the photograph for enclosing underneath and I only did it on one side but it makes that building look about 20% larger. The total FAR you are adding is 750sgft on a 2,500sgft building. Is that 20%? It looks like it is more. If it was anyplace else it wouldn't look so big. Terri: Because that building is an A frame and there is so much wasted space, I would invite you to come see my problem rather than to shoot this down. I would invite you to come over and see the problem. Remo: I have a question from the City's point of view both the Building Department and the Legal Department. If this was granted you notice there is a shaded area close to the portion that is in litigation. If we granted a variance just on the basis of what we have here and found out that--or have you determined that they would then be in violation of rear yard setback? Fred: No I have not exactly looked at it. You could design the variance with respect to that side so as to take into account that whatever variance you grant is subject to depending litigation. In terms of this corner right here it is required to have 10ft and I have taken a line based off the map that is an exhibit for the application. And it looks to me like it is close but you could design the variance with respect to that corner to say that any variance granted on that edge shall not intrude into that area. 12 BAM3 . 23 .89 The applicant has one other option. That is this is the lot line between the 2 projects. This is the protrusion of the roof right here. If this lot line because they own both properties went through a lot line adjustment which in a sense took this lot boundary line, came in 10ft, etc. they wouldn't need a variance. It appears that that is 50sgft approximately. The effect of 50sgft in terms of FAR on this lot which is the concern because this lot is designed is close to that. It is according to Bill rather insubstantial--maybe 3 or 4 feet at the most. And 3 or 4 feet could be a design margin. One thing you might want to do is either table the action and ask them to go through a lot line review or grant a variance subject to a lot line approval. Remo: They wouldn't need a variance then. Roger: I think we would be too close for this building. Fred: Your setbacks are required to have a total of 30ft. You have to have 20 on this side and 10 on this side. You can accomplish the same process by deed restricting both properties so each property is burdened by the deed restriction which in effect creates a lot line adjustment by deed restriction subject to a variance. That is an option you can look at. Remo: Is this a mistake that I am reading here in the variance request? The 31 feet to this side lot? Bill: That is correct. Remo: So the setbacks are not established. Fred: To make that even more confusing if you assume there is a quiet title action you subtract 600sgft from the lot, you reduce the lot size requirements by a proportional amount. So under scenario where they do lose that sliver of land in that other area then their side yard setback becomes reduced. Remo asked if there were any further questions. There were none and he closed the public portion of the meeting. MOTION Anne: I move that we deny Case 89-5. Rick seconded the motion. Josephine: I would like to hear more about this deed restriction. If we do that what does that accomplish? 13 BAM3 .23 .89 Fred: A deed restriction burdens a piece of property and with respect to, in this case here, because the applicant owns both properties that are subject of this variance you have the ability to burden both sides forever. Remo: Forever. The distance between the 2 buildings that nothing will be built in it. No accessory buildings, no expansion. Anne: They couldn't do that anyway. Remo: Would they have the option to come in for a variance with a covenant like that? Fred: Sure. What you are saying is that there is something in the chain of title that creates a restriction on the use and that to assume that in some point in time one of the parcels would be sold, each person who is either benefited or burdened by the covenant has the ability to go in and sue privately to enforce it. So if there were an attempt to come back and ask either for a variance or to construct something in the area, the person who felt burdened by it or felt offended by the new action would have an ability to come in a take some kind of new action. What you are doing is placing a burden on private property. Remo: our concern really is distance between buildings for safety, welfare, hazards, light and air and fire. That is what the intent was for side yard setbacks. So to that extent the spirit of the law is not disturbed in any way. And that is a plus to the applicant I feel. If we want to consider that it would mitigate the fact that they really don't have a hardship and they don't really have a practical difficulty--but the uniqueness of the 2 lots in the 1 ownership allows us, to some extent, to use that information and allow this project to go on. It is a consideration for the Board. Rick: What happened to the lot line merger law that we have in town? If the same person owns 2 lots, don't they merge? Fred: The idea here is if you have 2 vacant lots and if the underlying lots are non-conforming they merge. The merger law would not work here at all. Anne: If we don't deed restrict this they still can't add anything between the 2 buildings. I don't see why or what benefit we get if we deed restrict this. 14 BAM3 . 23 .89 Remo: Well, this house could move 10ft closer. Anne: They have the trees. They can't cut the trees down because they are oversized trees. Bill: That house already has a building permit. Those setbacks are established. Anne: I don't see why we would deed restrict it. 20 years down the road you have got someone coming forward that didn't know about a deed restriction and you end up in a mess again. Roll call vote: Anne: Now this is to deny it now? Remo: That is right. Anne, yes, Rick, no, Josephine, yes, Charlie, no, Remo, yes. MOTION Josephine: I move that we grant the variance. Charlie seconded the motion. Roll call vote: Anne, no, Rick, Rick: I move to approve the variance subject to a deed restriction. Ron: You can't change a motion now. Remo: I asked if there was any discussion. Rick: I missed my discussion. Would you re-phrase that? Josephine: No. Remo: I thought a denial was a simple majority. A denial is not? _ Fred: Actually _an action by _the Board _it doesn't- stop the Board from going back into seeing if there is a majority for a different solution. Anne: But did we have to--the denial, did that have to pass by 4 to 1? 15 BAM3 . 23 .89 Fred: Action by the Board of Adjustment requires a minimum of 4 aye votes. The question should have been phrased in the positive as opposed to the negative. Anne: Which is what we are doing now. I think we should finish on this one. Remo: We have a motion and he is withdrawing his second. Do I hear a second to Josephine' s motion? Anne: Yes: Rick: I would be in favor of granting a variance subject to a deed restriction. That is the only way I would agree to that. Josephine: I already said I wasn't going to change the motion. Roll call vote: Anne, no, Rick, no, Josephine, no, Charlie, yes, Remo, no. Variance denied. CASE #89-6 JACK BARKER/WESTERN HERITAGE LOG HOMES, INC. Remo read into the record request for variance. (Attached in record) Joseph Zaluba, purchaser of the property from Jack Barker: Jon Mulford, Zaluba's attorney: Joseph: This property is located in the Hoag Subdivision which is above Ute Avenue. It is Lot #3 . The lot is a 3 acre site which is impacted by an avalanche area which is defined by a report by Arthur Mears. Our main hardship is this avalanche path. We want to be outside of that so we are attempting to set this house with the driveway situated such that the house and the driveway are excluded from the avalanche path coming down on the Lot #1 Hoag. This will also allow us easier fire and police access. It will also minimize the general impact of the house from Ute Avenue. Because of the steepness of the site we can't really move up the hill. We could never meet the 100ft setback anyway with meeting this setback on the side. So we have chosen this site based on our main hardship being the avalanche situation across this existing drive. That is our basic argument. 16 BAM3 .23 . 89 Jon: This existing drive is a deeded easement for access to this property over here. Remo: And it goes above your house. Joseph: It goes above. That is correct. Ron: Where is the trail head for the Ute Trail? Joseph: Down here. Ron: And is that also where the road continues to go off? Joseph: Yes. That is correct. There is a driveway right adjacent to the Ute Trail. Anne: The properties that are right on Ute Avenue--the duplexes existing--do they have a requirement of 100ft front yard setback? And did they get a variance? Remo: They are not in Conservation zone. Rick: Why was this zoned Conservation when the immediately adjacent properties seem to be a different zone? Remo: Because it goes up the steep part of the hill. The steepest part of the hill. Rick: But what was the purpose of it being Conservation? Remo: I think they have 'a 1080 zone too, don't they? Joseph: 8040. That is right. Bill Drueding: Anything above Little Nell ' s is Conservation. Ron: I want to ask our City Attorney--I drove up that road and I saw examples of avalanche coming down through the forest. Looking at this thing, the lot line doesn't--they are siting this house a good 2 or 300ft up that road-- Joseph: Approximately. It is up a ways. It is right behind that first duplex. Ron: The point I was trying to make is that these plans and the siting of the house they don't show any avalanche danger to the east. Yet I saw an avalanche there. Joseph: I think you are right. There is one there. 17 BAM3 .23 . 89 Ron: Not only that but an avalanche guy reported one in 1973 in his report. They had one in 1988 and 1989. Joseph: I think you are right. But that was on the adjacent property and there is avalanche down on this mining claim there. Ron: I saw the results of that avalanche not 3ft from that easement on that road in the woods. My concern is, Fred, if we grant a variance and he gets buried by an avalanche, what is the City's liability? Joseph: We are going through 8040 also. We can design this structure which we will probably be required to under 8040 for avalanche in the back. Ron: I am not concerned about where you want to build a house or how big you want to build or anything like that or whether you have a right to build it. I am concerned that the avalanche report did not go deep enough and you may be putting yourself in the face of an avalanche and then your heirs are going to come back and say "Well, we think granting a variance saying there was no danger zone" . I don't want to see something like that. Remo: What is the City' s responsibility? Can they build in the avalanche path? Fred: This applicant will have to go through 8040 Greenline Review. One of the criteria in the 8040 Greenline Review will be the hazards created by the site. If they determine that there are hazards that make construction impossible they will deny the application or force remedial steps. That is the level that that liability issue will be addressed at. Joseph: We have chosen the safest site to build the house and therefore my case is I am pleading that I need a 25ft setback to build this in the safest place on this lot. The other considerations we will take up at the 8040. Fred: If you grant the variance today there is no guarantee that this house will be built at that zone. The 8040 Greenline Review may dictate other changes. Josephine: Then we could still use as our practical difficulty the avalanche path. Fred: Absolutely. Anne: You have this road easement and you are showing that the 18 BAM3 . 23 . 89 25ft setback you are requesting is from the far side of the road. Bill: We take from property to property line. Anne: So even if there is a road coming through it you don't worry about that. Bill: No. Anne: Could you put this house back 10ft more? Ron: Move it west? There followed many suggestions regarding moving the house. Anne: We are supposed to grant the minimum variance. Charlie: So that you have a 30ft side yard--just sliding it straight back along parallel to the left line. Joseph: Yes. I think we can do that. Anne: If you can compromise and come back a little bit then I think you will get approval a lot easier. If you can go back loft, I will be willing to grant the variance. Remo: I went up there and walked that and was shocked to see that snow avalanche coming through dense trees--big trees. Also I was shocked to see that it had impacted the house below the road. One of the avalanches came right across the road and was into the house below. Can we modify the_ variance by asking to put a retaining wall to deflect avalanche. Several: That is what the 8040 Greenline Review is for. They are going to take care of all of that. Ron: You could write a letter asking them to consider the dangers of avalanche. That was my big concern. Josephine: I didn't feel concerned about that because those trees are so big. When the trees are that big that is evidence that not a powerful avalanche has come down and taken out the trees. Remo: But in fact they had knocked down trees in another area of very dense forest and had come to the road in a very similar situation. 19 BAM3 .23 .89 This is a non-conforming lot of record, right? You have 3 acres here. You are required to have 10 acres. Joseph: Right. Remo: And it doesn't even have the frontage on it that is required. I think you are required to have 400ft of minimum frontage. There is a. parking requirement and the parking requirement is 1 space for each bedroom. And they have a 3 bedroom and they only show a 2 car garage. Anne: It is 5 bedroom. Joseph: The fact that we are moving it up will help that. The only negative to moving it up is we are going to have to cut a little more out of the mountain. We will have to landscape that. But we will go through that on 8040 with them. And if we have to meet parking it might be the only way we could do it anyway would be to move it up. Remo: My only other concern is that destruction of the very trees to build a house which are supposed to better protect you. I am thinking about a minimum of taking out of trees. Fred: That is not within your purview. I would urge you to articulate those concerns at the 8040 stage. Remo asked if there were any further questions. There were none and he closed the public portion of the meeting.oseph Anne read into the record a letter from Robert and Carole Howard stating their objections to the variance. (Attached in record) Ron read into the record a letter from Gary and Susan Rappaport stating their objections to the variance. (Attached in record) MOTION Rick: I move that we approve Case #89-6 for this 30ft side yard restriction. Remo: Move the house to the--side yard setback as indicated in the drawing. Anne seconded the motion. Roll call vote: Anne, yes, Rick, yes, Josephine, yes, Charlie, yes, Remo, yes. 20 BAM3 . 23 .89 Variance granted. Ron: I would like to make it a part of the record and request Remo to write a letter to the 8040 Review Committee that we have granted a variance, visited the site and are concerned about avalanche conditions and would they please be extra careful in their review. Note: Just for the record this was done and the 8040 Review Committee did read the letter into their record. Anne made a motion meeting be adjourned. Josephine seconded the motion with all in favor. Time was 5. 50pm. Janic M. Carney, ity Deput Clerk 21 NOTICE OF PUBLIC HEARING _ Case #89-5 TERRI SCHIFF BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24 , Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, then you are urged to state your views by letter, particularly if you have objection to such variance , as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: pate and Time of Meeting: Date: March 23 , 1989 Time: 4: 00 p.m. Owner for Variance: Appellant for Variance: Name: Terri Schiff Marty Pickett Address: 295 S. Midland Ave. Aspen, CO. 81611 Location or description of property: Location: 295 S. Midland Ave. Lot 7 , Block 1, Promontory Subdivision Variance Requested: Property is located in the R-6 zoning category. Chapter 24 Sec. 5-201 (D) (5) . Side yard setbacks are a minimum of loft each; 31ft total on this size lot . The applicant is requesting to enlarge a current encroachment by another seven feet eleven inches (7 '11`0 by moving a wall out . Chapter 24 Sec 9-103 (C) . A nonconforming structure shall not be extended by an enlargement or expansion that increases the non- conformity. Will applicant be represented by counsel: Yes: X No: The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado8l6ll Remo Lavagnino, Chairman Jan Carney, Deputy City Clerk March 13, 1989 Mr. Remo Lavagnino, Chairman The City of Aspen Board of Adjustment 130 South Galena Street Aspen, Colorado 81611 Dear Mr. Lavagnino: I object to the proposed set-back variance at 1125 Ute Avenue. The current 100 ft. set-back preserves the sylvan character of that section of Ute Avenue, as the original zoning intended. I, as a property owner and part-time resident, value that sylvan character. Thank you for requesting my views. Sincerely, Jane Z. Frazer 2821 Claremont Boulevard Berkeley, California 94705 Aspen address: 1105B Ute Avenue GARY AND SUSAN RAPPAPORT 1115 UTE AVENUE ASPEN, COLORADO 81611 (303) 925-4155 Remo Lavagino, Chairman City of Aspen Board of Adjustment 130 South Galena St. Aspen, Co 81611 Re: variance regarding 1125 Ute Avenue, lot 3, Hoag subdivision. Dear Mr. Lavignino, We cannot be there to present our strong objections to the proposed setback variance from the required 100 feet to 25 feet. The following are some of the questions, concerns and objections that we have: 1 . Have there been subsoil, slide pattern and drainage studies done? We are very worried that a large excavation that close to the road will cause a substantial increase in the amount of runoff, thereby affecting our property and previously approved drainage systems. 2. What is the reason for asking that the setback be changed? Is it anything more or less than a question of cost? We believe that when someone acquires property, he should be prepared to live with the zoning ordinances and codes that were passed to make the community more consistent and attractive in the first place. 3. The proposed access road crosses our land. However, there is an easement for a "ski trail" . We would object to the use of that road for motorized vehicles of any sort. As you can see, we are against the requested variance and hope that you will not approve it. Thank you. S cerel Gary and Susan Rappaport ROBERT W. HOWARD 31 DANIEL COURT RIDGEWOOD, NEW JERSEY 07450 March 12 , 1989 City of Aspen Board of Adjustment 130 South Galena Street Aspen, CO 81611 Attention: Remo Lavagnino, Chairman Jan Carney, Deputy City Clerk/ Thank you very much for the opportunity to comment on the zoning variance requested by Jack Barker at 1125 Ute Avenue . Unfortunately, we will not be able to attend the March 23 hearing . However , we wish to register via this letter our strong objection to the variance. It seems to us that such a variance goes against all the environmental aspects which make Aspen great . Having houses within 25 feet of the road is most intrusive. To see how unattractive such a house position is , one need only look at the Rappaport house currently under construction next door to US . We did not receive a Notice of Public Hearing about that variance -- and would certainly have opposed it given the opportunity. It is obviously too late to do anything about the Rappaport house but we strongly urge you not to compound the problem by granting anyone else to build so close to the street . Very truly yours , Robert W. Howard and Carole M. Howard 1105A Ute Avenue Aspen, CO 81611 KRABACHER, SCHIFFER& HILL P.C. ATTORNEYS AT LAW 201 NORTH MILL STREET ASPEN,COLORADO 81611 TELEPHONE (303)925-6300 TELECOPIER (303)925-1181 B.JOSEPH KRABACHER OF COUNSEL SPENCER F.SCHIFFER BARRY D.EDWARDS THOMAS C.HILL March 23 , 1989 City of Aspen Board of Adjustment 130 South Galena Street Aspen, Colorado 81611 Re: Schiff Variance Ladies and Gentlemen: This firm represents Martha and Paul Aspegren who are adjacent property owners of Ms. Schiff. We would like the Board of Adjustment to consider the following facts. 1. The Aspegrens and Ms. Schiff are presently in a quiet title dispute over a portion of the Schiff property that is included in the site plan for the proposed variance. 2 . The Aspegrens have filed a lawsuit seeking quiet title of the portion described as the "overlap" on the enclosed map of Aspen Survey Engineers, Inc. dated October 29, 1987 . 3 . Our surveyor has calculated the approximate square footage of the parcel in dispute and believes it to be 648 . 5 square feet. 4 . Based upon these facts, the Board of Adjustment may wish to consider whether the total floor area has been exceeded and whether the property complies with the rear yard setback with respect to the property line between the Schiff and Aspegren properties. 5. To the extent that the Schiff property does not comply with the rear yard setback, the Aspegrens oppose any variance that would create a variance, increase any nonconformity, or otherwise violate these applicable zone district dimensional requirements. City of Aspen Board of Adjustment March 23 , 1989 Page 2 The neighborhood is already quite congested and the variance on the rear yard will intrude upon the privacy of the Aspegrens. Should you have any questions regarding this letter, please feel free to contact the undersigned. Very truly yours, KRABACH7�777 L P. C. By: B. Joseph Kra bacher BJK/1 j k Enclosure (as recited) cc: Martha and Paul Aspegren BJK1N/47 NOTICE OF PUBLIC HEARING Case #89-6 JACK BARKER/WESTERN HERITAGE LOG HOLES, INC. BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended , a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24 , Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, then you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and Time of Meeting: Date: March 23 , 1989 Time: 4: 00 p.m. Owner for Variance: Appellant for Variance: Name: Jack Barker Joseph S. Zaluba Address: Box 3379, Aspen, CO.81612 Location or description of property- Y Location: 1125 Ute Ave. Lot 3 , Hoag Subdivision Variance Requested: Property is located in the "C" Conservation Zoning area. Front yard setback required is 100ft. Chapter 24 Sec 5-217 (D) (4) . Applicant is asking that setback be set at 25ft. A 75ft variance. Will anvlicant be represented by counsel: Yes: % No: The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado816ll Remo Lavagnino, Chairman Jan Carney, Deputy City Clerk MEMORANDUM TO: WELTON ANDERSON, Chairman-Planning & Zoning Commission FROM: REMO LAVAGNINO, Chairman-Aspen Board of Adjustment RE: BARKER: Lot 3 Hoag Subdivision-8040 Greenline Review DATE: March 28, 1989 At the scheduled meeting of the Board of Adjustment on March 23 , 1989 we heard and granted a variance to applicant Jack Barker: Lot 3 Hoag Subdivision (Case #89-6) . We granted the front yard setback variance to more safely situate the structure in a denser stand of larger trees, out of the major avalanche path. In walking the road to the lot, there were substantial avalanche occurrences that crossed the road. Looking uphill I noticed major snow movement had occurred in trees the size and density similar to conditions on the subject property. While the Board felt a need to further mitigate the potential avalanche threat, it did not want to encumber the Planning Commission's role in their 8040 Greenline Review. The Board has asked me to write this memo to express our concerns and offer recommendations for your consideration. Under the direction of the Engineering Dept. we felt that a deflection barrier should be constructed uphill to direct any snow movement away from the structure and toward the main avalanche path. The protective barrier should be strong enough to withstand avalanche impact and deposition loads. Further, that there be a close monitoring and minimal removal of trees during construction. cc: Cindy Houben, Planner