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HomeMy WebLinkAboutminutes.boa.19890824 CITY OF ASPEN BOARD OF ADJUSTMENT AUGUST 24, 1989, 4.00PM COUNCIL CHAMBERS--MAIN FLOOR A G E N D A I. CALL TO ORDER ROLL CALL II. CASE #89-10 RICHARD W. VOLK c� RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT AUGUST 24, 1989 Chairman Remo Lavagnino called meeting to order at 4: 00pm. Answering roll call were Ron Erickson, Rick Head, Charlie Paterson, Anne Austin and Remo Lavagnino. Josephine Mann and Bill Martin were excused. MINUTES MARCH 2, JULY 6 AND JULY 13, 1989 After one minor correction, Anne made a motion to approve minutes of March 2 , 1989. Charlie seconded the motion with all in favor. Ron made a motion to approve minutes of July 6, 1989. Charlie seconded the motion with all in favor. Ron made a motion to approve minutes of July 13, 1989. Rick seconded the motion with all in favor. CASE #89-10 RICHARD W. VOLK Remo excused himself from this hearing because of a conflict of interest. He turned the meeting over to Vice Chairman Charlie Paterson. Charlie read into the record request for variance. (Attached in record) Affidavit of posting was then presented. Leonard Oates, representing owners of the property: Mrs. Denise Reich, one of the property owners is here today. On a line to the north of the property and abutting the owners is Remo Lavagnino, the Chairman of your Board. There is a fairly lengthy history of disputes between Mrs. Reich and Mr. Lavagnino and they are some- what legend here about the City. The matter that comes before you based upon a complaint--as we understand it--lodged by Mr. Lavagnino alleging that the owners have placed a previously existing storage shed on the property and that such replacement was within side yard setback dictated for the R-15 zone. Furthermore that it was replaced on the property without a building permit issued by the City of Aspen. The replacement storage shed occurred sometime in the Spring of 1988 . As we understand it the complaint in this matter was lodged sometime in the Fall of 1988 . BAM8.24 .89 I am going to limit the remainder of my comments to procedural matters only. My words are strong and not intended to be personal. Hopefully they will not be taken that way. The Board of Adjustment is a quasi judicial body pure and simple. We are forced to come before the Board in order to exhaust our administrative remedies before we go to a court of law. Neither Mrs. Reich or the other owners of the property or myself believes that given the unhappy relationship between Mr. Lavagnino, she and the other owners that they can get a fair hearing before this Board as presently constituted. I really want you to think about that in terms of the remainder of my comments. The fact of the matter is that each of your professional peer group relationships with Mr. Lavagnino is very deep. The Board is close-knit and cohesive. I have seen this Board work many times in the roughly 23 years I have practiced in Aspen and I know that you would feel the action on your part, granting a variance which he strongly opposes for personal reasons would be considered a slap in his face. And that the result would be troublesome in terms of future Board relations. We think that this will be on your mind in considering the applicant' s request for a variance. Secondly, Mr. Lavagnino may have discussed either the specifics of his complaint against Mrs. Reich or he might have touched on or told you about his differences with Mrs. Reich over the years or may have told, you may have read about them or heard about them elsewhere. From all of this you may have formed an opinion prejudicial to the applicants in terms of their application for a variance. And there is no way that this impression cannot be overcome so that you can act fairly on this matter or even participate in consideration of it. In short we feel like we are coming out of about a 25 foot hole if this Board, as presently constituted, sits. With this in mind I ask that each of you really ask if you can fairly consider and fairly judge this matter. We don't believe you can. We believe the circumstances here present go far beyond just the mere appearance of fairness or unfairness, as the case may be, which in and of itself should be enough for disqualification of the entire Board. It goes into areas that we don't see that there is any way where the conduct is not arbitrary and capricious. And on circumstances like this a judge in a court of law would take himself out of the proceedings. We think you should do likewise. I am going to cite an example. Today Mrs. Reich was down on her property at roughly 1: 00 or 1: 30. At that particular point in 2 BAM8. 24.89 time Mrs. Austin, one of the members of the Board, arrived on the property with Mr. Lavagnino and they proceeded to discuss the matter outside of the presence of the duly constituted body. Now we don't know what was said. We can never demonstrate what was said. I think that in and of itself queers this entire and taints this entire proceeding. So does the comment like you just made with respect to this matter to another Board member in our presence intended for us not to hear and so does that smirk on your face. Therefore, for the record, we object to the Board as presently constituted in considering and acting on this request for a variance. Please bear in mind that if the variance sought isn't granted that in all likelihood an appeal will be taken on the issue of fundamental fairness. The bias of the Board itself and on such other grounds as may now be available or hereafter be developed in these proceedings. Mr. Gannett is here as the staff attorney for the City of Aspen. I would like to ask him if it would be appropriate to poll the members of the Board of Adjustment with respect to what contacts may have occurred specifically relating to this matter and relating to the relationships between Mrs. Reich and Mr. Lavagnino. Charlie: Excuse me. Mr. Oates, I would like you to address your remarks to me first. I would then turn it over. I would like to note 2 things before we go any further. Number one, the Board is consisted of only four members right now. The fifth one won't be here until 5: 00. She is up in the back country and has been excused until 5: 00 and is not able to make it. You have a right at this point on procedural matters to ask us to hold the meeting at another time because you need to have four people voting affirmative out of five. That is one situation that I must bring to your attention first before we go any further. Oates: I understand that, Mr. Chairman. Charlie then read into the record letter from Howard L. -Hanson. (Attached in record) Fred Gannett: Do you want to address the Board members individually in order to ascertain their relationship with Mr. Lavagnino? Oates: As regards this matter. I don't care about their personal relationship. I would like discussed their general 3 BAM8.24 .89 hostile relationship if it is between Mrs. Reich and Mr. Lavagnino generally. Whether or not they are aware of other matters that bear in this variance that we should know about and essentially I would like to know what they think about whether they can judge fairly in this matter. Fred: I would direct the Board members--it is my belief based on the statements put into the record today particularly the possibility of the potential lawsuit that you are entitled to an executive session with respect to whether or not you should individually or collectively disqualify yourself from hearing this matter. I would advise you that in order to have a full and frank discussion--that is amongst yourselves and not part of the official record of this proceeding--that you should avail yourselves of that opportunity. It is up to you as to whether you wish to do it. It is my belief that to answer Lennie's question that he is entitled to ascertain from the board members questions that relay to specific facts of this variance request-- that is any conversations or dealings you may have had with Remo in response to his either official or unofficial feelings on the matter. I don't know what the answer to that question may be but I believe that he is entitled at least for the purposes of creating the record which is what this is all about is to do that. And I would encourage you to be forthright and disclose that. But I would also encourage you to avail yourselves the opportunity of at least talking to me in private before you do that. Oates: If I may, you know the second issue is frankly we would be tickled pink if Mr. Gannett would go to the City Council and say "We have a problem here. We need to get a virgin Board of Adjustment" . An they appoint a special Board of Adjustment that could under no circumstances be tainted. Anne: Are you going to take on educating all of those people as to what they need to know to be able to judge? Oates: That is not my job to educate them. We will educate them with the facts. How it goes from there I think is up to the City. Charlie then took a poll of the Board members as to whether they wanted to go into executive session. All voted in favor of an executive session. Albie Kern: You plan to go into executive session right now? I would like to address the Board. I am here on behalf of the adjacent property owner, Remo Lavagnino. I am rather appalled at 4 BAM8 .24.89 the way Mr. Oates has come in a very aggressive and defensive manner and accusing this Board of being arbitrary and capricious just because of the fact that Remo Lavagnino who is a property owner who is opposed to this for many reasons which we will point out to the Board if we are allowed to present it. Because he is a member of this Board he has removed himself and to my understanding he has not talked to any of the Board members with regard to this particular application. I agree with Mr. Gannett that you are certainly entitled to an executive session. Although I am not clear on what you said, Charlie, with regard to this person's right--this applicant's right to a continuance. You might recall that this was set in June. And they asked for a continuance because it was told to the Board at this time that the applicant would not be here. My understanding is that the applicant is not here now. As I read one of the statements on the application is--the applicant is Richard Volk. Is he here? Oates: He is not here. I am here on his behalf. Albie: I am really quite appalled by this approach to the Board. I don't think there is any need or necessity for it. But what I was going to ask you, Charlie, is you have given them a right to a continuance to have 5 members sit. Since there is a quorum of the Board and I do recognize that it takes 4 members of the Board to vote approval before the granting of a variance. It is appropriate and proper and has been done in the past that the Board may sit and that there is no outright avowed ability to continuation. Rick: We have historically done this. It is a courtesy. Charlie: It is a courtesy for the applicant that the Board members extend. We always, for the record, give that notification to the applicant and then it is his choice whether he sees that he needs that extra vote. In other words the 5 members voting either one way or the other. Then it is up to the applicant to make that decision and we are willing to abide by that. Albie: At this time I would ask of Fred and the Board to request that the applicant whether they are assuming that after your executive session if you decide to sit whether the applicant wishes a continuation if you allow him that courtesy or whether, if you decide whether you are going to hear it whether he is willing to have it heard now. I would like to know. Charlie: Before we go any further let's-- 5 BAM8.24 .89 Oates: I just want to address--for the record--Mr. Kern's comments. I am appalled that he is appalled. He is incorrect in basically when Jan called me, she called me with a date. I said that date was not acceptable. We never came forward and requested a continuance. This is the first date that we have had. It was acceptable to all the people. So there never was an appearance. If this hearing does proceed, we don't feel that by Mr. Lavagnino disqualifying himself or somehow purging himself, he can consecrate and absolve the Board. We think that Mr. Kern being here as his proxy is the same as Mr. Lavagnino being present himself. And we say that his mere presence taints the proceedings. I think he should be excused--that Mr. Kerns should be excused from the proceeding. Why should he be in any way permitted to infect the Board with statements, ie. eye contact, laughing, body language, swooning or any other subtleties. Or the laughter which may be offensive. However, we will be presenting the facts as we see them. And the fact that Mr. Lavagnino wishes to complain and sit on the Board or have someone here in his place, he should be prohibited from participating in any way in these proceedings. When an attorney becomes a judge he gives up certain rights as a private citizen and by acting on a board, he does the same. And I submit to you that that is the case here. Charlie: Did you notify the property owners within 300 feet of that property? Oates: Yes, as I understand it the notices went out. Charlie: Every one of the property owners has a legal right to attend this meeting or be represented. And you cannot legally say that any property owner who is within 300 feet cannot attend this meeting or make his voice be heard. Oates: For the record we agree with you with the exception of Mr. Remo Lavagnino under these circumstances. Charlie: He is within 300 feet and that is the law. Oates: Based upon our position we are prepared to go forward with the 4 members present. Fred: I recommend that we close the hearing and go into executive session and then come back. Rick: I so move. 6 BAM8.24 .89 Anne seconded the motion with all in favor. RECONVENE Charlie reconvened the meeting at 4 : 50pm. I would like to make a comment from the chair. The Board really feels that they take issue with the conclusion that you made pre- judging our Board before you have even heard from us about our opinion that this Board could be impartial to this case. We take issue and we want to mention that for the record. Now I would ask the members to state briefly their contact with Mr. Lavagnino regarding this case. Anne: Whenever we have a hearing we have to go and inspect the property. And I was at a luncheon. I had 3 other people in my car. I drove up to the property. I left the car running. I told the people I had to run over and look at a shed and I would be right back. I tried to get right behind the applicant's house. There were too many trees so I went around onto Remo's property, went across the property line. Remo happened to come out of his house and I said to him "Where is the property line?" He showed me a stake right next to the shed. I said "Is this where the metal shed was before?" Because our papers here describe that it was replacing a metal shed. He said "No, it was over there by the river" . I ran over to the river to look at what was like a bare spot of ground. A new Aspen tree was planted there. I said "Thanks, I have got to run. I have got people in the car. Goodby" . Just then the applicant or 2 people came out of the house and asked me if they could help me. I said "No. I was just looking at the shed for the hearing" . I was in a hurry and left. That basically was my contact with Remo on this case. Nothing else was said about it. The only other time that I have had contact with Remo regarding these people was several years ago when I showed his property across the street to someone for sale. He mentioned something about the rocks on the property across the street and a conflict with a next door neighbors as to where the property line was on the other property. That was all. I don't feel that I have any problem with being impartial on this Board. Ron: I went out to the property about 3 : 00 this afternoon. I went up to the front door and knocked and there was no one home. I walked around to the back and looked at the shed. Remo Lavagnino came out of his house. I said "Hello" . I asked him 7 BAM8.24.89 where the property line was. He showed me a stake--a yellow, like a fence support and a small stake at the bottom of that. He said that was the property line. That was the extent of our discussion on this case. I don't think I will have any problem being impartial in dealing with the merits of this case. Charlie: As Anne Austin mentioned earlier, when we do have a case before us we go and look at the physical situation of the property. I went down there and started wondering around on the wrong side of the road. I wandered all over the property--went around the house to the one side and found that was some new grass there and didn't want to step on it so I stepped over to Remo's side of the property. He happened to be working in his yard and I just said "Remo, where is the shed?" He said "Oh, it is back here. " So he walked me back to where the shed is. I said "Where is the property line?" He showed me the stake where the property line was. I walked around and looked at it. There was no other comment made about it. He showed me sculpture on the back of his shed where he has some collection of old things that he had and that was the end of it. I am also quite appalled at what I heard from Mr. Oates that we all know about some argument between Mr. Remo and his neighbors. To me that is absolute news. Maybe I don't listen to some of these things. I am too busy in my business. I am absolutely surprised and I have never heard of Mrs. Reich. And I have never heard of Mr. Volk before this case came before us. I was not aware of any problem between him and his neighbors. He certainly didn't indicate so and he has never talked to me privately about it. I feel I have no bias at all. I am willing to hear this case by its facts that are presented. And that is the way I feel about it. Rick: I have never discussed this issue with Lavagnino. To the contrary I have had more discussion with the applicant's attorney about this particular issue than I have with Remo. So regarding this application I feel unbiased and am ready to act on what I find accordingly. Charlie: Under that situation I would like just like to ask Mr. Gannett for any further comments. Fred: I have a clarification. Does this application require setback variances for both the north and east corner? Lennie: Well, I didn't' think so. Now as I understood it, it is only a side yard requirement. I could stand corrected on that. But by the way, I appreciate your taking the time to consider this and to understand the seriousness of the matter. From the outset it is not a personal matter with you. But what 8 BAM8. 24 .89 we said should stand for the record. I am not withdrawing my judgement. Mr. Gannett, I could stand corrected on that particular issue. I don't know. Denise: It is 5 ft from the Hanson's property. And it is on the property line. Albie Kern: I am the attorney for Mr. Lavagnino who has very diligently attempted to be totally impartial and remove himself entirely from the decision to be made by this Board. I do want to say that the--it has been misrepresented in the applicant's application that this is a rear yard setback question. Totally misrepresented. It is lying on within lft from the Lavagnino property line which would be the side yard setback of loft. So the request is misleading, misguiding. I do want to say also in response to this particular question with regard to the biasness or arbitrariness question that was brought up by Mr. Oates that this Board--Mr. Oates has attempted to put this Board on the defensive. I expect and I hope that this Board will review this matter like any other matter. I think you have already stated you will with regard to the rights of both this property owner and the rights of the adjacent property owner and will not be subject to any threats of lawsuits and any statements of arbitrariness and capriciousness on you part without knowing the facts. Fred: First for the record I have advised the Board that in my opinion the presence of Mr. Kerns as a representative of Remo and Mr. Lavagnino's joint property is proper and as such is the only procedure by which the property owner who may also happen to be a member of this board may be represented before it. For the purpose of amending the record the issue goes to the notice issue as to whether or not the land owners of the affected area who might have been dissuaded from attending the hearing because of a misconception as to what the variance is. I am not as concerned about the identification of the rear yard/side yard setback issue as I am about the nature of the variance or relief granted. Lennie: Let me say this. Mr. Hanson who is the property owner directly affected behind the shed--in other words on the rear yard basis--has placed his letter in the record already. So it is there. He has notice of the complainant, Mr. Lavagnino would be the other affected property owner. Anything else would be the public who I think is adequately represented here by virtue of the view from across the river on the Rio Grande property. So my understanding was--and Francis and I discussed this when the variance was filed and the application is that we were dealing 9 BAM8.24.89 with a 5 yard side yard situation which I understood was a side yard requirement in the R-15 zone. If there is in addition a rear yard problem then we certainly-- our presentation goes to that as well. If you feel that is procedurally fatal I guess we will go back to square 0 and go back through this again. Francis Krizmanich: The setbacks, Fred, if that is what you are looking for are 30ft front, loft side and 5ft rear. So that is loft setback between buildings. Ron: We are talking R-30 zoning? Francis: Yes. Ron: Mr. Oates is talking R-15 zoning. Albie: That is another mistatement on the application. It is an R-30 and I wish to point that out. Another mistatement made by Mr. Oates is that he was asking for a 5ft setback variance relating to rear yard not side yard. No mention was made of the side yard in the application for variance. Anne: Which is the rear yard and which is the side yard? Rick: The Howards is the rear yard. Remo is the side yard. Lennie: The property fronts on the extension of Spring Street which would be the front yard. The rear then would be the orientation of the shed and the Hanson property boundary. And the side yard would be, in effect, the river and Mr. Lavagnino's property. Rick: So the 5ft variance then is also incorrect. It would be a loft variance. Lennie: Apparently so. Yes. Charlie: You would need a loft variance? Lennie: Probably so. Charlie: Mr. Gannett, can we hear this case. It hasn't been presented as such unless we can change the record. Fred: I am not sure I am in a position to tell you there is or isn't sufficient information. You have before you an application and it appears to have at least 2 defects. The first which 10 BAM8.24.89 relates to the nature of the request and as to whether or not there needs to be additional relief. In terms of the notice issue I think Lennie is right that you have--the parties most directly effected are on notice of what is taking place and that there is an opportunity to have a curative effect here. Charlie: I am willing to hear the case if that is the Board's wish. MOTION Anne: I move that we go ahead and hear case #89-10 on the basis of these changes--to approve a 5ft rear yard, loft side yard variance. Rick: The rear yard wouldn't require a variance. It is 5ft. Ron: Well, we don't know that. Fred: I can assure your motion is predicated on the applicant moving to amend the application. Lennie: That is correct. I understand. Rick seconded the motion with all in favor. In your application remarks you talk about a stream margin review. And it goes on to say "Unless certain conditions are met" . Can you describe to me--what additional conditions? Lennie: No. Because it was a question of the chicken and the egg. We were told to go to try and get the variance on the setbacks before we went for Stream Margin Review. So we haven't even presented our application. That is the next layer of review that we would need to go through. Charlie: I am sorry but my understanding on making inquiries regarding that was that you had to have stream margin review first before you come to the Board of Adjustment. Lennie: I was advised differently. Francis: It is my belief they can be granted administrative approval on Stream Margin Review. That is what the City code says . With this new procedure we have the ability to administratively approve the Stream Margin Review. Based on its location the shed won't be affected. It meets requirements to meet administrative approval. I saw no reason to do that first 11 BAM8.24.89 and then have approval overturned by something that may or may not happen here and then have to do another administrative review. That would be redundant. Denise: I would like to start out by telling you that my family has been there since 1973 . We have been in Oklahoma Flats--I was raised here in the little house at 390 North Spring. I am trying to answer the question that the special conditions and circumstances do not result from the actions of the applicant. I went around Aspen--I spent a long time looking at sheds in Aspen. And I didn't--the shed had fallen down last Spring. The roof had caved in from the snow and it was due to cave in for years and years. It was an old Sears shed that my Mother had bought for $65.00. As you can see by the pictures it is how it looked from the Rio Grande Trail. It stuck out there like a sore thumb. Instead of having wind blow plastic and everything hanging outside all over my property like Mr. Lavagnino has on his property which I look at every day, I didn't want that appearance. I don't care what Mr. Lavagnino does on his property and what eyesores that it created. I simply wanted to have-not a huge shed-to hold that stuff. When we designed the shed Mr. Hanson came out and Mr. Hanson said "Absolutely you cannot replace the shed where it is. " He was furious. And I said "I can't not replace it" . And he said "You have to put it over here" . And Mr. Hanson came over to my property and I said "Where can I put it?" And if you will notice on exhibit 4 we--and this is what no one is talking about--why was this shed put on the property line? Believe me, having Remo Lavagnino as a neighbor, the last thing that I want to do was have a dispute with him. The last thing I wanted to do was have another argument with Remo. Mr. Hanson and I looked at the property and I said if I didn't tuck that in behind those Spruce trees and that Cottonwood tree then I would have to cut those down to move it over 10 feet. By cutting those down I would look right into Mr. Hanson's kitchen window or living room window totally blank, no foliage whatsoever which we have waited years to cover up Mr. Hanson's house that looks directly into ours. That is probably the key point in this whole thing. You can see the top of this Spruce that is just starting to cover up his bedroom window. And my kitchen window, this is looking out of my kitchen window into his window so I tried to take pictures that would show why I did that. 12 BAM8.24.89 The shed, in my opinion, was placed where it would have the least visual impact. On exhibit 5 the survey shows again that the closest that the special or extraordinary circumstances which apply to the subject property and do not apply similarly to other properties in the same vicinity zone. No other property has 8, OOOsgft down there. There is just none. If you can look at this whole thing and you can tell me where else I can place that shed without taking down huge trees, I will be glad to do that. I can't place it along the river. It totally impacts everyone. Mr. Lavagnino, when he came home, was absolutely furious that it was on the property line. I said "Remo, I can't believe you are saying what you are saying when your property remained on our property line for 40 years. And we granted you an easement. We will be glad to work something out if you are so upset about this" . And he was rigid. He laughed at me and he said "You sold out for $1,500 for an easement" . And I said "Thank you, Remo. That is what we got for being nice guys" . The property that you see on your survey--this is what he sold to Charla Brown. And you can see the easement that cuts right through that property. The sheds around Oklahoma Flats, there is only one property lacking in a shed. And Mr. Hanson' s shed is--the Building Department, nothing was ever done about it--is a garage, a shed a living quarters question mark, a studio with a toilet, with all the facilities in it and everything. Nothing happened. Rick: Which other property does not have a shed on it? You said there is only one other property in Oklahoma Flats without a shed. Denise: I have it right here. It is Exhibit 6. That is the house at 470 Spring. Because it is--the front porch is on an easement at 470 Spring. 285 Spring has an 8X10 shed on it. 390 Spring has a 15X30. 433 Spring has a 7X7 and 720 Bay has a 12X12 . 725 Bay has--God knows what Mr. Hanson--I couldn't even do it. I left out Remo's property which has 2 sheds on it. A 20X10 and an 8X15 with an enormous amount of junk all over. Rick: What about this parcel here? Denise: It is a totally separate parcel. Rick: But it doesn't have a shed on it either. 13 BAM8.24.89 Denise: No. That is vacant land. Rick: You initially said "Where else on the property could we put the shed?" And I submit to you that what is wrong with this vacant lot here? Denise: It is the hundred year flood plain. There is a whole thing on that. Rick: Could a house ever be built on that property? Francis: I haven't looked at the Flood Plain Maps. I can't answer it. Not right now. Denise: Let me answer that for you. (showing pictures) This is that property. These were taken in 1985--84 and 85. Charlie: The river comes way up on the property. Denise: The river is incredible. We sandbagged. We have major problems because when City Market basement was dug out, they brought in all the dirt and they filled up the whole side of the river where Boat Island was. And they filled all of that up and that took the whole river over on to our site. Ron: Were you one of the property owners who a number of years ago are continually after the City to change that snowmelt thing across there. I thought they would give you some relief in terms of allowing you to dike along the river or something like that. I am trying to establish that maybe the conditions in 85 don't exist today. Denise: Well, we haven't had a flood. So we don't know. Ron: You mean absolutely nothing has been done at all? Denise: Absolutely not. We have been able to put the rocks up and we have done it twice. We have put a fill up in October of 186 and we were given a permit for Stream Margin Review. The City allowed it and said it was OK. The Army Corp of Engineers came up and said "Absolutely, totally illegal, wrong. Take the rocks down" . And we spent a total of $12, 000 doing that. Fred: You may be delving in areas that are not pertinent to this application. Denise: Exhibit 7 is probably--"Where special conditions resulting from the selective behavior" . I am the only one that lives next to Mr. Lavagnino. I have asked him for years, "Remo, what is the problem? Why do you constantly harass me"? He has 14 BAM8. 24.89 gone to extraordinary lengths for any improvement I have made to my property to bring Mr. Drueding down and we do the whole thing. He has never pursued any of the other property owners in the manner with the selective enforcement that he has with me. When I approached him about Charla Brown who purchased the property from him in 1988 and that is exhibit 7--Mrs. Brown's property. She proceeded to add an entire addition onto the front of her house. Remo watched it. She put a huge window in. She stuccoed. She put another addition on. She put a deck on. And I sat there and I said I can't believe it. Certainly Remo has complained. Nothing happened. Lennie: That improvement was made within the setback and also within a private easement that is in your package between Mr. Lavagnino and the applicants. Rick: Why hasn't this been taken up with the Building Department? Lennie: It has been. This shows the issue of selective enforcement. Denise: I just want to be treated fairly. That is all I am asking. I am not trying to get any special privilege. When we turned in our permit to the Building Department in April 5th, we were rejected. On Charla Brown' s property, she was never required a survey. She built a second story on a private easement within the setback and it was totally permitted. And Mr. Lavagnino never said a single solitary thing. And we sold him the property. Now I say how does that happen that I have this little tiny shed which is on my property line. I would gladly have moved that over 10ft. if I didn't have the Blue Spruce's there. And I am about out of just sheer whatever. I will cut the Blue Spruces down. And Mr. Hanson can look into my window and we will live with that. And the City of Aspen will live with that. But that is a stupid thing to do. But if it does come to that point-- But again my point is the selective enforcement. When we found that we were not allowed to place one rock or stone on our property to protect it, Mr. Lavagnino went to extraordinary length to tell how the property never flooded, how we never lost any trees on the property. Lennie: We would like to as well have a site inspection with Mrs. Reich's presence. So we do intend to request that. I want you to know that. Anne: We all did one. 15 BAM8.24.89 Lennie: You did one but she wasn't present. I think that she would be very helpful in explaining some of the circumstances. Denise: Exhibit 8--we hear about the double standard in Aspen. I can certainly verify from my own point of view that it exists in the most shocking way. And it exists--it is embarrassing--it is a trouble maker if you ask for your rights. When I went back to remove the dirt from my property and I did at the cost of $1,700, I looked over and the City was dumping all of the street sweepings into the Roaring Fork River. The City took no responsibility in doing that. And I though "Boy, that is incredible" . I went and got a policeman. I got a lawyer. I did the whole thing in photographs. I called the EPA and we went through that. And the City's reply was that it really wasn't that bad, etc. The Aspen Art Museum thing is I would like to give you just an exhibit of that. And that was to be put in temporarily. When I went to them I said "This is going to be a temporary thing. You are making me remove everything from my property constantly and selectively enforcing what I do on my property--why does this still remain?" And Chuck Roth said to me "We don't have the budget to do that" . Ron: Do what? Denise: To remove the old part. To remove--you go down to the Aspen Art Museum bank. If I left my bank like that I would have been red tagged to pieces. My point is that I go into my property every day. I look at the Aspen Art Museum. I look at the debris that has to go through, the dirty cars. I don't care. It is a nice part of Aspen. It should be something pristine. But still it is a violation. I then come down. I look at the tennis courts that Mr. Drueding turned me down because I couldn't mark my property. I came in with a survey. I said I would like to mark my property with a fence. He said "No. It is a hundred year flood plain. You absolutely cannot. Don't even bother" . I said I was paying $600 to get the whole property surveyed. Now don't bother because the it would send debris into the river. So I placed the ugliest rocks in the whole world to mark my property line. Then I look every single day at Charla Brown who got the permit. I look every single day at the newest one the Mr. Lavagnino has not turned in. I could care less. It is an improvement to the property. 16 BAM8.24 .89 The parking structure because is adding to the river. The new addition on 720 Bay. It is selective enforcement. Charlie: Please try to limit your address to your hardship. That is very, very important. Don't get too far adrift. Denise: My hardship is that I need a shed. I need to place it so it won't impact everyone on the property. That it doesn't impact the public. It is tucked into the trees. I unfortunately replanted the trees in the wrong place. And that is the hardship. Charlie: And the practical difficulty also that you are going for at the same time. Denise: Well, that you can't put anything on the front part. We are too close to the river. Charlie: So your practical difficulty is that you can't put the shed closer to the river. Denise: And the trees. The trees are the greatest hardship. Charlie: The fact that the trees are located where they are. Denise: Yes. Charlie: Is there anything further? Charlie asked Francis for comments. Francis: I would have a question more than a comment. And that is why can't it be placed in the yard within the setbacks. I still can't understand with all the space between your property lines. I have been on your property. I gave you the red tag. I know how it all sits and what I don't understand is-- Denise: It will be right out in the open. It will be visually this thing stuck out in the open. Francis: I guess my problem is finding your practical difficulty in that there is not a flood plain concern. I know that because you can get an administrative approval as long as you don't increase your encroachment. In other words you can go as close to the stream as how your house is. You couldn't extend beyond the edge of you house but I still personally can't see any reason why you can't meet a 10ft, 5ft setbacks. So I don't see any hardship and that is my recommendation. 17 BAM8.24.89 Denise: Mr. Drueding would not let me put a fence on my property. I think maybe you--unless the stream margin review has totally changed that because of the 100 year flood plain that you can't possibly do that unless you put it on your property. And that is what I was told for years and years and years. When I tried to make any improvement whatsoever I can't do it. Francis: All I can tell you is that there is an administrative review to place structures along the stream and there is one that you can apply for. When there are little things like a shed Council has left staff approve those instead of going through a full blown public hearing kind of thing. That is one thing that we have tried to do for people. Beyond that I am having a real difficulty finding why you can't meet setbacks. Albie: Mrs. Reich, when was this metal shed that you refer to placed on your property? Denise: In the 70s. Albie: Was a building permit obtained for it then? Denise: No. I didn't even know what a building permit was. Albie: Is it correct that the metal shed was on the southeastern corner of your property? Is that correct? Denise: That is correct. Albie: Is it also correct that this new shed that you placed on your property is on the northeast corner of your property? Denise: That is correct. Albie: It is on the northeast corner of your property? Denise: That is correct. Albie: In your application you say "It is roughly in the same place as your metal shed" . How wide is your property? Denise: It is on the property line. It is not-- Albie: How wide is your property, though? The width of your parcel. Denise: Approximately 20 feet. 18 BAM8.24.89 Albie: Your property is 20 feet wide? Lennie: It is 20 feet from where the first shed was. Denise: Mr. Hanson, I mean I don't care. Mr. Hanson is the one that came out and said "Absolutely not" . I mean he was screaming and he said "You will ruin my view of the river" . Albie: I understand that. I am asking how wide is your rear property line? Denise: I don't have a clue. Albie: You don't have any idea? Is it over 100 feet? Denise: No. Rick: It shows 61 feet here on the map. Albie: And yet you say the metal shed was in one corner of the property. The new shed is on the other corner of the property. So wouldn't you say it is more like 61 feet across from where the original shed was? To where your shed is rather than 15 or 20 feet? I am just getting to the accuracy of your statements in your application. Charlie: The application said the shed was only moved a few feet from where the first shed was. Lennie: If you will look at the plat that is filed it shows the location of the metal shed. It is not on the southeast property line. Indeed it is in from the property line. I would estimate maybe 15 feet. Maybe it has been moved over another 15 to 20 feet to the north. Albie: I submit that the new shed is right on the property line- the common property line or within inches from between the Lavagnino property and the Reich property. So I think that is a mistatement--"Roughly in the same place" . That is not true. Also is it correct that the property--you always say "It is less than 100 feet" . So it is all in the flood plain. Is that correct? From the river? Francis: We don't have a map showing the elevations. Albie: You imply it wasn't in the flood plain where the new shed is. I just wanted to get that clarified. 19 BAM8.24 .89 Did you receive a building permit for the new shed to be placed on the property line? Denise: No I didn't. Albie: Did you speak to Mr. Lavagnino about placing the shed there? Denise: No. I did not. Mr. Lavagnino was not home. Albie: He was in the hospital at the time. Denise: Yes. Albie: Yet you talked to Mr. Hanson. Denise: Oh, absolutely. I knocked on Mr. Hanson's door and said "This is what I am doing" . And Mr. Hanson is very difficult to try to please everyone and yet visually so I don't look out my kitchen window every single day and swear at Mr. Lavagnino when I am looking into Mr. Hanson's bedroom window. Albie: Did Mr. Hanson object to your metal shed when it was placed in the first place? Denise: He never objected to it to us. It was totally news to me when I heard that. My Mother was the one that placed that shed there. And my Mother never even heard of a building permit. Albie: Did you ever hear of a building permit? Why didn't you get a building permit? I am just curious. Denise: For a shed I didn't think that that was needed. I could put a shed up and it wouldn't be needed. Albie: Did you put fill on the property across Spring Street-- your other property? Denise: When we had the flood? Absolutely. We filled it in. Albie: How much fill did you put in depth wise? Denise: What we were allowed to do was we put rock along the bank. Albie: And you didn't fill anything in the property? Denise: Then fill in where the flood took the trees and the flood took that whole end of the property out. Just exactly what the Aspen Art Museum did. 20 BAM8.24 .89 Albie: About how much? Denise: I have no idea. Albie: How deep? Denise: In certain spots--5 feet. Albie: Why couldn't you put the shed on the property there? Denise: It is across the street. It is a totally separate lot. Albie: Is that property available for development? Denise: I would assume--I don't know. Albie: Have you built anything on that property? Denise: No. Albie: You haven't built a treehouse on that property? Denise: Oh, A treehouse. Do I need a permit for a treehouse? Albie: Yes. You do. But that is neither here nor there. Much of which Mrs. Reich has stated is irrelevant. I do wish to point out--she talks about Charla Brown' s house. It is correct. Remo Lavagnino owned property across Spring Street. He did sell the property to Mrs. Brown. He has had nothing at all to do with the development of that property or anything with regarding it. I recognize there is an easement. There was a lawsuit involved between Mrs. Reich and Lavagnino which was settled by some easements and other grants involving that property. But he has nothing to do with Mrs. Brown' s development, encouraging it or discouraging it. Denise: Albie, I am talking about selective enforcement. Albie: I think every effort has been made by Mr. Oates to put this Board on the defensive and maybe when you don't have any basis of law or basis in fact that is exactly what you try and do. I think that is the same attempt by Mrs. Reich to say there has been selective enforcement. What you are looking at here is the question of someone who has put a shed on a property line without approval from anybody. Without a building permit, with attempting to even obtain--to 21 BAM8.24.89 sneak it in, to even obtain a setback from this Board which is a proper form for it. First of all it is implied that this is a 5ft rear yard setback when in fact it is also an attempt to put a side yard setback. I am not sure about the rear yard setback. That may well be. I don't think there is any question that this was built without a building permit. This shed is right on or very close to the property line. It is subject to Stream Margin Review as well. My understanding is she talks about saving the trees. Isn't it correct that certain trees were removed? And replanted when you moved the shed to the spot it is in now? Denise: That one tree would have meant that-- Albie: About a 6 inch or more diameter? Let me point out to the Board. (using map) What is shown here is where she put the shed without a building permit where it stands in relationship to Remo's property. You will notice that which is drawn in here and is the Volk house which is in the front of the map you are looking and in the middle is an area all of which is in the stream margin and subject to Stream Margin Review just as the shed is subject to Stream Margin Review-- whatever she does on the property. Her shed could be put--and it is not our duty to decide that-- could be put anywhere in this area without destroying or damaging or hurting any of the big trees she is talking about. I urge the Board--looking at the property in relationship to where she could put the shed. I think she has to show a practical hardship. She hasn't shown except for the hardship created by herself and a legal one at that. Any hardship has been created by herself. I think it is tantamount to just throwing in your face-"Look I can do anything I want" . You may have a complaint about what Charla Brown has done on her property. But this is not the forum to do it in. There is no selective enforcement. Remo--the adjoining property owner is saying "Look, you are putting your shed on my property. It devalues my property. It is a fire hazard" . And she does have plenty of room and plenty of places to put in that shed in a legal manner on that property. She has also stated to the Board "There are several accessory buildings or sheds on other pieces of property" . I submit that every one of those sheds including Remo's sheds or garages are in proper setback and not in violation of the variance. The violation to a variance is the Charla Brown house which Remo owned. That house was built in the early 1950 's by Carl Jones. 22 BAM8.24.89 That was before there was any setback requirements, before there was any violation. The only violation of a setback if you allow this would be Mrs. Reich's. Nobody else. Francis: Charla Brown was red tagged by the Building Department. She was given a permit which was rejected by my office which is Zoning. And she was given a 60 days, as you were, to submit an application. Lennie pointed out to me that her time had run out. And I turned it over to the City Attorney, Fred Gannett who wrote Charla a letter. She did come in this week and has submitted an application to Mr. Drueding. When I receive a complaint I usually do act and I have tried not to engage in selective enforcement. Lennie: We think the placement of the shed is the most sensitive treatment in terms of the public nature of the property from the view across the street and the trail. We also believe that it is the least offensive to both Mr. Hanson and to Mr. Lavagnino. Our issue on selective enforcement is that it just simply that we want fair treatment by the City which Mrs. Reich does not think that she has gotten. She has pointed out some examples to you why she hasn't gotten it. Oklahoma Flats may be the badlands or whatever but apparently there is a lot that goes on down there on a non-permitted basis and a lot that goes on down that may be in violation and this is viewed by everybody. Charlie asked for furtherpublic comment. There was none and he closed the public portion of the meeting. Anne: When we grant a variance we really look to grant a minimum variance. We base it on practical difficulty or hardship. After having viewed the site today, I didn't see why this shed couldn't have been moved away from the corner of the property line. 5ft on the rear and loft on the side yard. I realize that ideally it would be nice to have the sheds hidden in the trees but that is not our purview to look at aesthetics or financial difficulties. If the applicant had gone in for this building permit she would have been told that she had to have it within setbacks. I don't really see a hardship. Even if she had come to us prior to building it, I would have said that it needed to be built within those setbacks. So I would not grant this variance based on that. Ron: I would not grant the variance. I think that the presentation was very complete. Many of the points were well 23 BAM8.24 .89 taken. Some of them were not to the point of the variance that we are discussing here. I agree with Anne. I think that shed can be placed without needing any variances at all. So I would not grant this variance. Rick: Notwithstanding the dispute between the 2 neighbors and the bribes we have been accused of, I have to agree with my colleagues here that I don't see a hardship. This shed can be put anywhere on that property other than where it is now. Aesthetically Miss Reich might think that that is where it should be. But we do have laws that everyone in this community has to abide by. There are some inaccuracies in the application--10ft as opposed to 5ft. The R-30 as opposed to the R-15. The building permit was never applied for. The original shed was placed there in the setback illegally. I don't think that the photographs of other pre-existing sheds in the area is germane to this argument. There are inaccuracies as to relocation of the shed and I think the hardship as Mr. Kern has pointed out has been completely self created. I cannot in good conscience grant a variance when there are other alternatives. Charlie: I am usually the most lenient of this group. My philosophy is usually, as my colleagues all well know, try to solve the problem. And if I can see any kind of a loophole whereby the applicant has any kind of really, really practical difficulty and hardship, I am usually inclined to say yes, they should be allowed a variance. This is a very well prepared case and I appreciate Mr. Oates's presentation except I do take exception to some of it as previously stated. Mrs. Reich has certainly given us a tremendous amount of photographs and factual information to back up her case. But I come to the conclusion after hearing all sides of this situation that really there is no hardship other than self imposed. There is no practical difficulty that can be shown. Even those trees that are there, there is plenty of room on that property where a shed can be located. It can be located next to the house. It can be located out in this open area. If it is too visible from the Rio Grande, there can be some trees planted which could screen the shed from the Rio Grande area. I would not be in favor of cutting down any trees. It is illegal to cut a tree that is more than 6 inches. I have a feeling that there is no practical difficulty and there is no hardship other than self created. I would have to not grant this variance. Anne: When people have come to us for a variance for a garage in the past we have stated that a garage is not a necessity and I think we have to look at a shed as the same thing. A shed is not 24 BAM8.24 .89 a necessity for our approval and so if there wasn't another place that was acceptable to the applicant, we really don't have to grant a right to put in a shed. MOTION Anne: I move that we deny the variance for case #89-10 as requested. Rick seconded the motion. Roll call vote: Ron, yes, Anne, yes, Rick, yes, Charlie, yes. Variance denied. Ron made a motion meeting be adjourned. Anne seconded the motion with all in favor. Time was 6: 10pm. Ja , ice M. Carney City Deputy"/Clerk 25 NOTICE OF PUBLIC HEARING Case 439-10 Richard W. Volk 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 auz-hority 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: June 15, 1989 Time: 4 : 00 p.m. Owner for Variance: Appellant for Variance: Name: Richard W. Volk Leonard M. Oates Address: 5847 San Felipe St. , Ste. 3600 Houston, Texas 77057 Location or description of property: Location: Lot 1 & S 1/2 Lot 2 , Block 2 , Oklahoma Flats Variance Requested: Property is located in the R-30 Zoning category. Rear yard setback is 5ft for an accessory building. (Sec 5-205 (D) (6) Aspen Land Use Code) . Applicant appears to be requesting a 5ft rear yard variance. applicant be represented by counsel: Yes: X No: The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 81611 Remo Lavagnino, Chairman Jan Carney, Deputy City Clerk Howard L. Hanson P.O. BOX 1690 725 BAY STREET ASPEN, COLORADO 81612 1, .August 221, 1989 Board of Adjustment Cit'v Hall, City of Aspen 130 So. Galena 8't. ,I ,Aspen, CO 811611 Re: 'Y'.=-iriance Hearing--E;torage --hed loo-ated on Volk Property., 230 No. Spring St, Oklahoma Flats Dear Board IvIernbers: The rear property line (east) of the. Volk property runs north from the Roaring Fork Ri-ver along the west property line of our Y propert-v (7215 Ba-u, E"t..) for approximately 70-75 feet to a point where the north property line (Volk ti runs west along the Lavagnino 4270 No. Spring St-) :south property line. A storage shed has been erected in the N.E. corner of the Volk property- This shed replaces a metal •-torage shed which had been erected on our vrest property line approximately 10 feet from the river bank. This metal shed was erected on our property line in 1975* or 1976, and althou,,-,ch we complained to the Building Department at that time (" Clauton Mewerding was the Department Head ), nothing was done. The location and appearance of the replacement shed are a big imprauement over the metal :shed, even though we view the new :shed through the west window of our li-ving room. E:in el'v Howard L. Hanson C.C. Denice Volk Reich Remo Lavw:,nino