HomeMy WebLinkAboutminutes.boa.19911122 CITY OF ASPEN
BOARD OF ADJUSTMENT
NOVEMBER 22, 1991
CITY COUNCIL CHAMBERS
4:30 PM.
A G E N D A
I. CASE #91-8
L'OPERA APPEAL
RECORD OF PROCEEDINGS
BOARD OF ADJUSTMENT NOVEMBER 22, 1991
Meeting was called to order by Chairman Remo Lavagnino at 4 : 30pm.
Answering roll call were Remo Lavagnino, Rick Head Josephine
Mann, Charlie Paterson, and Bill Martin. Anne Austin and Ron
Erickson were excused.
L'OPERA APPEAL
CASE #91-8
Jed Caswall, City Attorney: Basically as I understand the appeal
the applicant is not asking for an interpretation of any provision
of the code. What they are asking and what they wish to challenge
is an application of specific provisions of the code made by the
Zoning Enforcement Officer through the particular facts surrounding
his client's desire to put a restaurant in the Wheeler Square Bldg.
What you are being asked to do is to apply staff's interpretation
of the code to the facts as will be presented before you.
Based upon my understanding of the facts as set forth in the
appellant's appeal that this Board has the authority to effectively
make a judgement as to whether or not the Zoning Enforcement
Officer is correctly applying the code to the facts of this case.
Bill Drueding, Zoning Officer: When the building permit
application came in from the appellant it indicated it was going
to be a restaurant. That indication was determined by the seating
plans, warming facilities, cooking facilities.
I told the applicant that this was not permitted because of the
definition of the code that says you must have alley access. And
I determined they did not have alley access. They went to the
Planning Director to see whether my determination was correct. The
Planning Director wrote a letter and she upheld my determination
that direct alley access was not correct and therefore could not
be permitted.
Remo: Could you tell us what you mean by direct alley access?
Drueding: That this the interpretation of mine.
Diane Moore, Planning Dept: The definition of restaurant is "A
restaurant shall be required to have service delivery access from
an alley or other off-street service in the delivery area. The
restaurant is located on (she read very fast here and I could not
understand what she was saying) elevator for dumb waiters and
service access" .
As I had outlined for you in my memo--the reason this particular
section was placed in the code was because there were obviously a
BAM11.22 . 91
lot of concerns within the City of delivery trucks and service
trucks impeding the movement of traffic and creating unsafe
conditions. So this particular section was placed in the
definition of the restaurant. It was specifically for that and
that is why they have addressed it and requires that alley or other
off street service areas be required in terms of service delivery
for restaurants.
Part of the philosophy behind that was that restaurant establish-
ments have increased deliveries and they felt that this was very
important. CCLC and the City are trying to address this issue.
When I did this interpretation after looking at the plans and doing
on-site inspection and visit they don't have the kind of access
that was contemplated by this particular section in the definition.
They don't even actually if you look at the alley which is right
behind the Wheeler Square Bldg it is not even designated for
service deliveries now. And even if that were you wouldn't go
through a corridor which is down past several offices through
courtyard open space and then make a delivery into this restaurant.
And it is based on the way we have reviewed other applications.
Remo: Are you telling me that if the alley were open to traffic
then direct access--
Diane: No.
Remo: So then you still haven't answered my question. What is
direct access?
Drueding: The definition does not state "direct access" .
Remo: But you used that word.
Drueding: I tried to back off from that word. I didn't mean to
use it.
Remo: I think in the kinds of buildings restaurants that are
around in the same vicinity and zone, none of them meet that
requirement. That one across the street doesn't have any access.
The Grille does not have any access to an alley according to your
definition. So that part of our guidelines or a subsection to our
guidelines is that if someone else is enjoying a property right in
the same vicinity and zone and is denied the subject property then
that is a hardship. So that is considered a hardship under our
guidelines. .
Rick: We are not being asked to determine a hardship or practical
difficulty.
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David Myler, representative for Wheeler Square Assoc: Gerard
Philippon who is proposing to open what Gerard will describe for
you as a European style bakery where food will be prepared and
served. And because food will be prepared and served it is a
restaurant under the 1988 definition. There is really no dispute
about that.
This is a very serious problem from our perspective. This is the
old Baskin Robbins space in the Wheeler Square Bldg. As we see it
there are 2 principal issues that we are asking you to review.
Those issues are first of all whether the proposed use that we have
in mind is subject to the 1988 definition of a restaurant which
requires service delivery -access from an alley or- other off-site
service area. It is our position that we are not subject to that
regulation--at least on a technical basis. And that we should be
exempt from having to demonstrate compliance with that regulation.
If we are subject to it the second question is--can we comply?
There we think we can as well.
The fact that we don't believe that the alley access requirement
is applicable in this case doesn't mean that we aren't concerned
about deliveries--that we aren't willing and indeed prepared to
work with the City, to work with CCLC, to work with our neighbors
to minimize the impacts of deliveries, to be a good neighbor, to
be part of the solution rather than the problem. We have discussed
some of those solutions with the staff concerning loading zones and
deliveries and where we can park trucks off street, etc. We do
wish to work within the spirit and the intent of that regulation
and mitigate the delivery impacts.
Background: The prior use of the property. In late 1986 Baskin
Robbins began operation. In 1988 the code was amended to add the
definition of a restaurant with the language that has been sited
requiring delivery access. It also defined the restaurant as an
eating and drinking establishment where food is prepared and
served. Those are 4 very important concepts. And if under the
1988 amendment you met those 4 tests then you were required to have
delivery access from off street.
I am also assuming that you are familiar with the non-conforming
use regulations in the codes. If the Baskin Robbins operation was
a restaurant--an eating, drinking establishment that prepared and
served food then the space would be grandfathered. The use of that
space would be a non-conforming use and we would not be subject to
the provisions of the 1988 amendment as long as the continued use
of that space was not enlarged or expanded or abandoned for a
period of 12 months. We meet all of those tests.
Remo: Does that include a new ownership? A new activity as long
as it is a restaurant.
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Myler: It is the use that is grandfathered. Not the particular
tenant. The use existed prior to the 1988 regulation and therefore
it is not subject to it.
In discussing this with staff what it really boils down to is the
term "prepared"--food preparation. It is staff's position that
there was no food preparation taking place in the Baskin Robbins
operation. Therefore it was not a restaurant. Therefore there was
no non-conforming use. Gerard is the first restaurant to be in the
space -scy they have -to comply with the 188 regulation.
We disagree. There was preparation going on there. I have asked
Barbara Umbreit of the Environmental Health Dept and Ken Shriver
who operated the Baskin Robbins restaurant for 5 years to come here
and share with you their thoughts regarding this rather esoteric
but very important distinction and that is was food being prepared
there. Because if it was, clearly Baskin Robbins was a restaurant
and clearly they were grandfathered.
The question I asked Barbara Umbreit and the answer that I got from
her in evaluating this was that the fact that food was prepared
and served on the premises. This is the primary if not the soul
reason that a food service license was required. And a food
service license was obtained in 1986 and was renewed every year up
until 1991.
Barbara Umbreit, Environmental Dept: I want to state that our
definition of what was served at this establishment comes from the
Colorado revised statutes and differs from Bill ' s interpretation
of a restaurant per the City code. Our definition certainly
required Baskin Robbins to have a food service license and we
inspected them regularly. They did prepare food according to our
definition. Even something as simple as a milk shake can be a
public health concern.
Myler: In my discussions with the Shrivers they were preparing
cakes and ice cream cakes which took hours to prepare. Fruit was
being prepared for use in various of the mixtures and sundaes that
were prepared. Other condiments had to be prepared for toppings
on food. And an interesting point that Barbara made, dairy
products are probably one of the most dangerous food products that
we have to deal with from a health standpoint. There is probably
more risk of contamination there than anywhere else. So the simple
fact that refrigeration was required and care was required to be
taken in preparing this product for service to a customer I think
is an element of preparation.
I don't see any real basis for distinguishing between the
preparation of food in the zoning and landuse context and the
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health context. To me preparation is preparation. And I don't
think that I can read anything in the definition of a restaurant
which simply says "Where food is prepared and served indoors" .
That would lead to an inference that you can distinguish between
different degrees of preparation. If you are preparing food you
are a restaurant. It doesn't matter how much preparation is
actually involved.
The conclusion that we have come to I think is inescapable. Baskin
Robbins was a restaurant and we should be exempt.
Drueding: It is a criteria of a food license--does Clark's Market
require a food license?
Barbara: It has a food service license.
Drueding: Does a bakery require one?
Barbara: If they have perishable food, yes.
Drueding: Does a catering license require one?
Barbara: Yes.
Drueding: They are all different areas of the code. You will see
"Restaurant" in your packet and right below it says a bakery. The
point is the zoning code differentiates a restaurant differently
than the Health Dept.
Remo: Could a bakery than serve other things other than a bakery?
Could they serve coffee and maybe soup as part of their bakery
operation?
Drueding: Now we are getting into that gray area. We don't have
a definition of a bakery.
Remo: So then how can we--
Drueding: Because we--we don't know what a bakery is. Part of
this reason--I know some history here. The bakery is--Little
Cliff' s--that was a bakery. Let's go to Godiva. They served ice
cream. But they were not considered a restaurant.
Remo: What about Main Street Bakery? The Main Street Bakery
serves lunches, dinners, soups.
Drueding: That has been an area addressed by Planning & Zoning
Commission about how far you could go with this preparation. We
just can't make all the definitions that has the correct words.
That' s why we have interpretation and history and common sense--
intent.
Rick: What do you call Mezzaluna? Is that a bakery? It 's in the
Mill Street Plaza that serves food outside. They have tables
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outside. It is a bakery but they are serving lunch and sandwiches
and food. They don't have alley access. They don't have an
elevator. They have been there one year. They just opened 6
months ago. Now how did they get away with this?
Drueding: They are not a restaurant. They are a bakery.
Remo: Ah! But they are serving food.
Drueding: I don't know that. And this is a full blown restaurant
we have here. This is a matter of degree here. And I am saying
this is a full blown restaurant vs this gray area of bakery.
Myler: The question is not what we are doing because we can say
that under the current definition we are a restaurant. It is what
Baskin Robbins was doing. And really the only issue is
preparation. Is preparation any different from a land use
standpoint than it is from a health standpoint.
Remo: So you are saying that once you establish that Baskin
Robbins was a restaurant that you would have the same right to
utilize that space as a restaurant just because it was already
established as a restaurant.
So they are not denying that they are a restaurant.
Drueding: Correct. But Baskin Robbins was not a restaurant. I
say it was not a restaurant.
Rick: We have to determine whether it was a restaurant.
Drueding: The reason for this code was the intensity and the
amount of delivery per day. I feel as Zoning Officer that a
restaurant requires much more service during the day and that is
the impact associated. That is why we have differentiation between
restaurant and bakery and catering service. That is what the code
is trying to address--this impact.
Remo: So if they could mitigate that and have the spirit of the
intent of what the code wanted and they could convey that to you-
-would that be all right?
Drueding: No. That is why we have a Board of Adjustment. We are
not prepared to the decisions of who has more impact and who has
less impact.
Remo: What we want from you is if you want to go along with the
intent of the code, are you comfortable with that?
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Drueding: I am comfortable with the decision that Baskin Robbins
was not a restaurant. This particular operation is a restaurant.
Charlie: Why was Baskin Robbins named a restaurant on their
license and at the same time they had to have a bathroom which is
something you don't need if you just have an ice cream parlor?
Drueding: That is the Health Dept rules. And this is pre 1988
with approval as restaurant.
Rick: Bill, could you live with the applicant combining all of
their deliveries with the other restaurant that is in the premise?
Drueding: I can't make that decision. I am saying it is a
restaurant so I have to stay by the code.
Rick: They are talking about all deliveries being made before
6: OOAM in the morning.
Diane: What Dave is proposing is a solution to-but and it is
something like patrol days. There was a section in here that said
"In the alternative dadadadadada within this definition of the code
that provided that we consider it. It doesn't have that. And that
is why today perhaps we should look at making an amendment to the
code. My interpretation is I don't feel that gives us that ability
to do that.
Rick: Could we give the applicant some relief subject to the City
amending or looking into amending that code?
There were several "no" answers to this.
Jed: That is not your function here.
Charlie: But we can certainly make a determination on our findings
that has nothing to do with changing the code. And that is
probably better.
Jed: We are all rather new at this type of procedure before the
Board of Adjustment and I think it is important to focus in on what
I believe the issue is basically a factual determination that you
have to make. Was Baskin Robbins a restaurant? The appellant is
not debating or disputing that he is a restaurant. If you make a
determination that Baskin Robbins was in fact a restaurant, you
need I don't believe go any further in any of these other issues.
I think the staff has said that the definition of a restaurant
under the health code in their mind is different than a definition
of a restaurant under the Landuse Code. And you will have to
decide whether you think that is correct and then use your best
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judgement as to whether or not Baskin Robbins was a restaurant.
They have said if Baskin Robbins was a restaurant his client's
operation as a restaurant would be grandfathered from the
prohibitions that the staff claims prohibits him from having a
restaurant in that location.
Myler: Mr. Chairman, Rick Head is right. If you determine that
the other issues are mute. But I wish to assure you again that
they aren't mute in our mind. That we are committed to working
with the City--
Remo asked for public comment at this point.
Connie Shriver: I have sales tax, tourism tax, dates declaring
that we were a restaurant. We had the IRS declaring that we were
a restaurant. Every Baskin Robbins in the country is classified
as a restaurant. I don't know why this one would not be.
Philippon: I am new in this area here. I moved in April. Prior
to that I had 5 different businesses in Key West, Florida which is
a very similar type resort. I am familiar with the historical
district and all of that because of Key West. When I moved here
after negotiating with Mr. Fleischer the first thing I did was go
to City Hall and find out all the different rules of the City.
At that time I met with the Health Dept. That was back in mid
August. At that time I met with Mr. Drueding. I met also with the
Historical lady. And I think I have done pretty much what was in
my--I did my homework. I was told by everybody that it was an OK
location. At this point I didn't have too elaborate a plan on the
business. This is what I showed my landlord and this is what I
showed Mr. Drueding on the concept of what I wanted to do which is
a very European, French bakery, cafe. Mr. Drueding took a copy of
this paper here and told me that that the zoning was fine for this
type of operation.
Based on this I went ahead and signed a lease and made large
investments towards that project. I am new here in town but this
is my new home town here. I brought my life savings with me. I
am not an out-of-town investor here. This is something very
serious for me.
Remo: Unfortunately this Board can't right the wrongs of what City
Hall does. They do it all the time. I think your recourse is to
sue the City.
Myler: We recognize that the preliminary meetings are infor-
mational only. We are not here to criticize Bill or to point
fingers or anything else. I think that there was probably a
misunderstanding and we are not here to try to rely on anything.
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Remo: What we are dealing with is basically whether City of
Aspen's definition of a restaurant is greater than the State
definition.
Jed: It definitely would be. You are bound by the City code.
Myler: We don't disagree with that. The City has defined
restaurant. It says "If you prepare and serve food, you are a
restaurant" . Baskin Robbins prepared and served food. It was a
restaurant.
Drueding: I don't believe I misdirected Gerard one bit. And I
just want to show you why. He did not talk about a restaurant.
He talked about a French Bakery. This shows a bakery. I agree.
That would be a bakery. That is what it looks like--a bakery.
This shows 4 tables, ovens, pastry proofer, waitress station,
customer seating--this is a whole different thing than this. And
this I considered a bakery. I did not deceive him.
A restaurant is different than a bakery. This was OK. And I still
make that decision. It shows as a bakery and that would have been
OK.
Philippon: But a bakery as an ice cream place is a restaurant.
An ice cream parlor is an ice cream parlor. A bakery is a bakery.
Remo: Is there any definition in the code that speaks to an ice
cream parlor?
Drueding: No.
Remo: Nothing specific as that. So if it is not covered under ice
cream parlor, it is relegated to some other--But why would the City
say it was a restaurant then? Why would the City put it under that
designation?
Drueding: This particular plan?
Remo: Baskin Robbins.
Drueding: I didn't.
Remo: No. I mean why would the City--
Drueding: The Planning Dept, who is the City, did not call it a
restaurant. The Health Dept--they used their terminology as the
City. They called it a restaurant.
Remo: So what did the City call it?
Drueding: The Planning Dept of the City said it was not a
restaurant.
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Remo: What was it? What was it classified under? What use was
it classified under? I mean it has to be put under something don't
you think? Whether it is an office or--what is it? And you don't
have a definition of an ice cream parlor. It has got to be put
somewhere. It is an establishment. They do serve foods.
Drueding: That distinction between restaurants and other food
establishments was not established until 1988.
Remo: In 1988 how would you classify Baskin Robbins?
Drueding: Not a restaurant.
Remo: What would you classify it as?
Drueding: And there other pre-existing ice cream parlors in the
City that we would go on.
Remo: What are they classified as?
Diane: How I would classify it as a retail commercial
establishment such as bakeries and other types of uses.
Remo: But it is not under that. Specifically it is not.
Diane: It is a gray area.
Remo then asked if there were any comments from the public. There
were none and he closed the public portion of the meeting.
Josephine: Here we are again with this kind of a problem. This
gray area in the code that causes us all sorts of problems. So
this time it is the use or the definition of the term "restaurant"
and how we have used it. It is not really the definition. It is
how we have used or misused that word.
So to my way of thinking this is a gray area and that is what we
must deal with as a Board. To my way of thinking that word
"restaurant" applies more than just an establishment that serves
food that requires a license from the Health Dept etc. It is also
an establishment that has service deliveries. And so the code has
made restrictions about that. Therefore in my way of thinking I
would say that Baskin Robbins was not a restaurant but that doesn't
mean to me that we as a Board should go on and worry about what is
going to happen there because that would be an interpretation and
we are not to do that today. We are not to interpret.
Remo: Joe, all we need to know is was Baskin Robbins a restaurant
and why you think it was or was not a restaurant.
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Josephine: I think Basin Robbins was not a restaurant in the full
use of the term. That is why this is such a gray area. A
restaurant has--if we call Basin Robbins a restaurant that is the
same as calling an ice cream parlor a restaurant.
Remo: But you have to remember the definition that they placed on
what a restaurant is, is preparation.
Rick: Eating, drinking, preparation and serving. And they said
that they prepared food. And of course we know people ate and
drank and were served there. So why wouldn't it be considered a
restaurant if they prepared food? Those are the 4 criteria to be
a restaurant.
Josephine: I think an ice cream parlor is different from a
restaurant. They may do some preparing of food. But it is a
limited amount.
Rick: What is the distinction between the grades of preparation?
Whether you are making ice cream sodas or rolls and dough. How can
you use variations of preparation. It is either prepared or it
isn't. And was ice cream prepared there? And cakes and fruit
chopped up for the ice cream sodas and what have you? Clearly it
was. So it should be considered a restaurant.
Remo: That is their definition of a restaurant.
Josephine: That is their definition.
Remo: No. That is the City's definition. That is how it is
written.
Josephine: But I say that I think the definition includes more
than that which is the servicing of the--the bringing in of food
and trucks and deliveries and all of that sort of thing.
Rick: Baskin Robbins had trucks bringing big tubes of ice cream.
They had to get that stuff out of the truck and into the
restaurant.
Josephine: I don't know how they did it.
Rick: They did it the same way they do it for the restaurant that
is downstairs. Milan's used to be there and they had deliveries
made. And the applicant has said that they agree to piggy back all
the deliveries with that restaurant. They will be coming out of
the same truck. They are making an attempt to accommodate the
concerns that Bill has of obstruction to traffic and congestion.
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BAM11.22 .91
Josephine: But I think we need to make the point that there is a
gray area about this.
Rick: I don't think there is. I think it is black and white. I
think very clearly that Baskin Robbins under these guidelines is
clearly a restaurant. And if that is the case then they have the
right to grandfather that use right along.
Charlie: I take a little different approach. Right in front of
me I have a business sales tax license dated December 22, 1990 from
the City of Aspen that says it is a restaurant. That is one thing
besides the argument that is being made.
That other consideration I have is that I can see a distinct--
there is a distinction between a place that has tables where you
sit down and eat the food and a place where you just walk in and
get your bakery goods or your ice cream and you walk right out and
there is no place to sit.
So if there was a sitting area where people were eating food and
drinking some prepared type of food, I consider that more likely
to be a restaurant.
Another thing too that we haven't talked about is--things are
different now than they were 10 or 20 years ago when some of these
codes were written. The question is, is a book store a restaurant?
People 20 years ago would have said "No. A book store is not a
restaurant" . And yet here in Aspen we know a book store that is
a very good restaurant. OK? So we have to modernize our thinking.
I would consider Baskin Robbins a restaurant.
Bill: I won't repeat Charlie' s and Rick's comments. I agree with
both of them. I think Baskin Robbins was a restaurant. And just
because ice cream--Baskin Robbins, if they had changed their
product could have served sandwiches. They could have served
cookies. They could have prepared food right on the spot. But
they elected, in their restaurant to just serve ice cream. And
prepare the condiments that go with serving ice cream which is
preparation of food.
Remo: It is difficult. I think the arguments that have been
presented are valid. And since the City has established a slot for
ice cream parlors and have historically relegated it to a
restaurant in print. Whether it is for lack of not knowing where
to put it or whether they thought about the ramifications of what
relegating it to a restaurant might mean in the future, we don't
know. I would go along with the arguments that were presented here
and I would put it in the category of a restaurant and would make
the determination that the application of the building enforcement
officer was correct.
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Jed: I think the appropriate action would be to firm the
application of the code in this case as made by the Zoning
Enforcement Officer or to reverse the application of the Zoning
Enforcement' s application of the code in this particular case based
upon the facts as presented.
Basically the issue was the Zoning Enforcement Officer did not
apply the term "restaurant" to Baskin Robbins. That the Zoning
Officer' s application of the term "restaurant" not applied to
Baskin Robbins was incorrect and you are reversing -that
determination.
Remo then re-opened the hearing to the public for any further
comments.
Philippon: I just want to say that I will comply with--I want to
be a good citizen and good neighbor. And being a bakery we--like
me being French--a bakery cafe is different from a restaurant as
your ice cream parlor is different from a restaurant.
We won't have the delivery of meats and fish and things like that
daily. I will probably be happy with 2 deliveries a week of flour
and eggs and butter and other canned goods and some fresh fruits.
Remo: Well, if we grant you this variance you can do what you want
but we will watch you.
MOTION
Rick: I move to reverse the Zoning Officer's application of the
term "restaurant" as expanded on by the City Attorney.
Charlie seconded the motion.
Roll call vote:
Remo, yes, Rick, yes, Josephine, yes, Charlie, yes, Bill, yes.
Rick moved to adjourn the meeting.
Charlie seconded the motion with all in favor. Time was 5:20pm.
Jan e M. Carney, ity eputy Cle
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CITY , iney PEN 1 et
1 �
30 Z
MEMORANDUM
DATE: November 19, 1991
TO: _ Board of Adjustment _
FROM: Jed Caswall, City Attorney
RE: L'Opera Appeal
Gerard Philippon, as lessee of the premises at Space 301, Wheeler
Square Building, 315 East Hyman Avenue, Aspen, Colorado, has
submitted a written request to the Planning Director pursuant to
Section 24-12-101 of the Municipal Code seeking an appeal from an
administrative decision denying Mr. Philippon permission to
utilize the subject premises for the operation of a restaurant.
In that a question has arisen regarding the jurisdiction of the
Board of Adjustment to hear Mr. Philippon's appeal, I am forward-
ing you this opinion addressing the issue.
Section 24-4-301 of the Municipal Code sets forth and defines the
parameters of the Board of Adjustment's general jurisdiction:
That provision states as follows:
In addition to any authority granted the Board of Adjustment
by state law and the Municipal Code of the City of Aspen,
Colorado, the Board of Adjustment shall have the following
powers and duties:
A. To hear, review and approve variances to the terms of
these regulations under Article 10;
B. To hear and decide appeals from, and review any order,
requirement, decision, or determination made by any
administrative official charged with the enforcement of
this Chapter under Article 12, except for appeals of
interpretation of the text of this Chapter or the
boundaries of the zone district map which shall be
heard and decided by the city council.
Article 12 "Appeals From Administrative Action", provides at
Section 24-12-101 as follows:
--rckd Pop-
Memorandum to Board of Adjustment
November 19, 1991
Page 2
Sec. 12-101. Appeals from the (sic) administrative action.
A. Authority. The Board of Adjustment shall have the
authority to hear and decide appeals from any decision
or determination by any administrative official pursu-
ant to the standards and procedures hereinafter set
forth, except for interpretation to the text of this
Chapter or the boundaries of the zone district map,
which shall be decided pursuant to the terms of Article
11.
B. Initiation. An appeal may be initiated by any person
who received a decision or determination by any admin-
istrative official with respect to this -Chapter, except
an interpretation to the text of this Chapter or the
boundaries of the zone district map.
E. Action of the Board of Adjustment. The Board of Ad-
justment shall consider the appeal within thirty (30)
days following receipt of all records concerning the
subject matter of the appeal. The Board of Adjustment
may reverse, affirm, or modify the decision or deter-
mination appealed from and, if the decision is modi-
fied, shall be deemed to have all the powers of the
officer from whom the appeal is taken, including the
power to impose reasonable conditions to be complied
with by the appellant. The decision shall be in writ-
ing and shall be sent to the appellee (sic) by certi-
fied mail. [Note: "appellee" should be "appellant" . ]
Any notice of appeal must be filed with the Planning Director
within ten (10) working days of the date of the decision being
appealed. (See, Section 24-12-101(C) . )
As identified in the notice of appeal, Mr. Philippon wishes to
appeal a zoning enforcement determination that Space 301 of the
Wheeler Square Building may not be remodeled and utilized as a
"restaurant" under the terms of the Municipal Code. The core
issue before the Board of Adjustment is the application of the
definition of the term "restaurant" as set forth in the Municipal
Code to the facts pertinent to Mr. Philippon's request to use
Space 301 as a restaurant.
Memorandum to Board of Adjustment
November 19, 1991
Page 3
As described above, the Board of Adjustment is without jurisdic-
tion to make interpretations of the Municipal Code. Similarly,
the Board of Adjustment is without jurisdiction to entertain
appeals from administrative interpretations of the Code. On the
other hand, the appeal being requested by Mr. Philippon in the
case before you does not challenge an administrative interpreta-
tion of any provision of the Code, but, rather, seeks a review of
a zoning enforcement officer's application of the Code to a given
set of facts as presented by Mr. Philippon.
Based upon the nature of the appeal as defined by Mr. Philippon
in his notice of appeal, and in consideration of the Municipal
Code provisions noted above, it is my opinion as City Attorney
that Article 12 of Chapter 24 of the Municipal Code authorizes
and properly vests the Board of Adjustment with jurisdiction to
hear and determine Mr. Philippon's appeal from the zoning en-
forcement officer's administrative decision in the application of
the term "restaurant" to Mr. Philippon's request to remodel and
utilize Space 301 of the Wheeler Square Building as a restaurant.
I will be available to the Board at the hearing scheduled to
decide Mr. Philippon's appeal should you have any questions
concerning the matters set froth above.
EMC/mc
jc1119.5
cc: Planning Director
Zoning Enforcement
City Manager
Oity Clerk
Dave Myler (for appellant)
Aspen/Pi1t * ning Office
130 treet
Asp 1611
(303) 9 920-5197
O ux
TO: Board of Adjustment
PROM: Diane Moore, City Planning Directo
RE: L'Opera Appeal
DATE: November 20, 1991
In accordance with Section 24-12-101 of the Municipal Code, I have
Sttached for your review information and records concerning the
L'Opera appeal. Mr. Philippon is seeking an appeal from an
administrative decision denying Mr. Philippon permission to utilize
Space 301 of the Wheeler Square Building for the operation of a
restaurant.
The attached information is in chronological order with the most
recent correspondence placed first in your packet. I have
identified the material by referring to it as exhibits and the
following is included:
Exhibit I - Letter from Dave Mylar (representing L'Opera) to Diane
Moore and Bill Drueding, dated November 20, 1991.
Exhibit II - Letter from Dave Mylar to Diane Moore, dated November
81 1991, Notice of Appeal for L'Opera.
Exhibit III - Letter from Diane Moore to Dave Mylar, dated November
61 1991, Code Interpretation.
Exhibit IV - Letter from Dave Mylar to Diane Moore, dated October
23, 1991, Delivery Access Requirements for Restaurants.
Exhibit V - Section 24-3-101 -of Municipal Code, Definition of
Restaurant.
Exhibit VI - Section 24-5-209 of Municipal Code, Permitted Uses
within the Commercial Core zone district.
Exhibit VII - Aspen/Pitkin Regional Building Department Building
Permit Application for Wheeler Square Associates.
Exhibit VIII - City of .Aspen Plumbing Permit Application for
won•►
Fleisher i Co.
I will be available to the Board at the hearing should you have any
questions concerning the tatters set forth above.
NOU 2 0
MYLER, STULLER & SCHWARTZ
ATTORNEYS AT LAW - -
DAVID J. MYLER 106 S. MILL STREET,SUITE 202
SANDRA M. STULLER ASPEN,COLORADO 81611
ALAN E. SCHWARTZ (303)920-1018
FAX 9204259
November 20, 1991
Bill Drueding and Diane Moore
Aspen/Pitkin County Planning Department
130 South Galena
Aspen, CO 81611
RE: L'Opera
Dear Bill and Diane:
Probably the most significant issue affecting your deter-
mination that L'Opera must comply with the off-street access
requirements is whether or not its predecessor, Baskin-Robbins,
was a restaurant. If it was , then the proposed use of the space
by Mr. Phillipon would not be subject to the 1988 access require-
ments, since Baskin-Robbins commenced its operations in 1986 . I
ask you to consider the following as new evidence in that
inquiry:
1 . On each business license application and renewal for
Baskin-Robbins from 1986 through 1991 (copies of 1986 and 1991
attached) , the City designated the nature of the business as
either eating place or restaurant.
2 . A Food Service Establishment License was issued to
Baskin-Robbins in each year from 1986 to 1991 (copy of 1991
renewal attached) . Food Service Licenses are only required of
businesses that prepare and serve food.
3 . When the space in question was remodelled to accom-
modate Baskin-Robbins in 1986 , a public bathroom was required to
be installed solely because Baskin-Robbins was considered by the
Building Department to be a restaurant with seating. I am
advised by the Building Department that public bathrooms are not
required of any retail establishments with the exception of
restaurants.
Thus, according to the standards and definitions by
which the City regulates business , building and occupancy, and
environmental health, Baskin-Robbins was considered to be a
restaurant and was required to adhere to the operational, health,
access and safety requirements of a restaurant. I fail to see
how the City can now claim that the business was not a restaurant
from a zoning standpoint.
4 . I have also reviewed the plans and the building permit
issued for the Swiss Bakery located on the Mill Street Mall.
This business is considered to be a restaurant by Environmental
Health, the Water Department and the Building Department. It has
MYLER, STULLER & SCHWARTZ
Bill Drueding and Diane Moore
November 20 , 1991
Page Two
no direct access to an alley. Deliveries can and probably will
be made from the alley to the south of the Ute Mountaineer across
the mall. Ironically, the space was previously occupied by an
ice cream parlor.
The Swiss Bakery was not considered to be a restaurant by
Bill , since most of the items to be served would be baked
(prepared) elsewhere. We believe that this distinction between
preparation and serving is insignificant in the circumstances,
particularly with respect to deliveries. The fact that many
items to be served are baked off premises does not mean that no
food preparation will take place on premises. Sandwiches will be
made , food items will be assembled, coffee will be brewed, salads
and soups will be made, and many items will be warmed or melted
for service . More importantly, since all baking will take place
at another location, and given the necessity that baked goods be
fresh, it would seem obvious that the Swiss Bakery will require
at least daily deliveries of baked goods, perhaps even several
times a day. Also, those deliveries will be made by using a
vehicle which would not normally be in the area making
deliveries , thereby adding to congestion. We believe that the
better position is that the Swiss Bakery is a restaurant and it
is either grandfathered on the basis of prior use of the space or
complies with the off-street requirements since the delivery
truck can park in the alley to the north.
The fallacy of the distinction between a business which only
prepares food and one that only serves it is further illustrated
by the fact that Mr. Phillipon could avoid the delivery access
requirement simply by physically dividing his space into a bakery
and a retail outlet, with separate entrances and leases .
Separately, neither space would be a restaurant according to
Bill ' s approach and, thus , would not require alley access .
My reason for providing you with this information now is in
the hope that you might reconsider your position, approve the
remodel plans , and thus avoid the necessity for an appeal.
Please call if you have any questions .
Very truly yours,
MYLER, L R & S Z
By:
David J. b9fler
DJM:caw
Enclosures
cc: Edward M. Caswall, Esq.
0 SOUTH GALENA ST.
• ASPEN,COLORADO 81611 BUSINESS/SALES TAX LICENSE
p1gaif review this form for accuracy and completeness: cared any errors or omissions and/or note any changes which have occvrred.
PLEASE TYPE OR PRINT CLEARLY
1. NAME OF BUSINESS: B A S K I N S R O B B I N S 4 LOCATION ADDRESS:
2 CORPORATE NAME: ICE CREAM IN ASPEN
3. MAIUNG ADDRESS: 315 E H Y M A N, S T E 301
315 E H Y M A N #301
ASPEN.CO 81611 ASPEN, CO 81611 )
I PHONE NUMBER: 92S-8234 6. DATE BUSINESS BEGAN IN ASPEN: 4/01/81
7. ENTER BUSINESS TERMINATION DATE(IF KNOWN):
8. NATURE OF BUSINESS: 5 812 RESTAURANTS
9. TYPE OF BUSINESS: ® RETAIL Q SERVICE 0 WHOLESALE D OTHER
10. TYPE OF OWNERSHIP: ® INDIVIDUAL Q PARTNERSHIP Q CORPORATION
0 ASSOCIATION OR CLUB 0 OTHER
11 OWNERS,PARTNERS, AND/OR SOCIAL SECURITY 12 LOCAL PERSO)t)TO Ct.1t;IT, fQgT IN EMEICANCY:
='S OF BUSINESS: NUMBER: NAME
B - _ __ ADDRESS)
C
11 ENT CITY DENTiFICATION NUMBER: 2228
14. ENT STATE SALES TAX LICENSE NUMBER: 458069000
15, FREQUENCY OF FILING SALES/USE RETURNS:
B MONTHLY Q QUARTERLY Q SEASONAL Q ANNUAL
16. 94M NQ OF BUSINESS OUTLETS OPERATING UNDER THIS APPLICATION:
NOTE-A SEPARATE OCCUPATION TAX MUST BE PAID FOR EACH BUSINESS LOCATION.
17. ENTER AVERAGE NQ OF EMPLOYEES
CompuTATON OF OCCUPATION TAX DUE TO THE CITY OF ASPEN FOR THE CALENDAR
YEAR )APL 1 THRU DEC 31: OCCUPATION TAX DUE
0-9 EMPLOYEES................................................................... 150.00
10-49 EMPLOYEES .............$300.00
...................................................
50 OR MORE EMPLOYEES........................................................$600-00 �v�G
APP TION DUE DATE ! 1/01/91
�O
APPLICANT'S SIGNATURE TITLE DATE
:ASE RETURN THIS APPLICATION ALONG WITH YOUR REMITTANCE,PAYABLE TO THE CIT Y OF ASPEN.
WA2
RIP APPLICATION FOR RENEWAL OF
'� 130 GALENA sr.
r ® . ASPEN,COLORADO 81611 BUSINESS/SALES TAX LICENSE
Please review this form for accuracy and completeness; correct any errors or omissions and/or note any changes which have occurred.
PLEASE TYPE OR PRINT CLEARLY
1. NAME OF BUSINESS: b A S K I N S R U B B I N S 4. LOCATION ADDRESS: -1
2. CORPORATE NAME: ICE CREAM IN ASPEN +� rm') 5. rt�
30
3. MAILING ADDRESS: A S P E f V s C 0 8161 1 £
CU `--
S. PHONE NUMBER: 925-8234 6. DATE BUSINESS BEGAN IN ASPEN: '11117'6 1 '�'
7. ENTER BUSINESS TERMINATION DATE (IF KNOWN): T
8. NATURE OF BUSINESS: 5812 EATING PACE/CATERERS
9. TYPE OF BUSINESS: ® RETAIL 0 SERVICE 0 WHOLESALE 0 OTHER
10. TYPE OF OWNERSHIP: INDIVIDUAL 0 PARTNERSHIP 0 CORPORATION
0 ASSOCIATION OR CLUB 0 OTHER
11. OWNERS, PARTNERS, AND/OR 12. LOCAL PERSON TO CONTACT IN EMERGENCY:
OFFICERS OF BUSINESS_:_ NAME:
A. PHONE:
B. HOME
C. ADDRESS:
13. CURRENT CITY IDENTIFICATION NUMBER: 222b
14. CURRENT STATE SALES TAX LICENSE NUMBER: 45P,069000
15. FREQUENCY OF FILING SALES/USE RETURNS:
O< MONTHLY 0 QUARTERLY 0 SEASONAL 0 ANNUAL
16. ENTER NO. OF BUSINESS OUTLETS OPERATING UNDER THIS APPLICATION:
NOTE-A SEPARATE OCCUPATION TAX MUST BE PAID FOR EACH BUSINESS LOCATION.
17. ENTER AVERAGE NO. OF EMPLOYEES
COMPUTATION OF OCCUPATION TAX DUE TO THE CITY OF ASPEN FOR THE CALENDAR
YEAR JAN. 1 THRU DEC. 31: OCCUPATION TAX DUE
F 10 OR LESS EMPLOYEES. . . .. . . . . . .. . .. . .. ... .. ..... .. ... . . ..... $100.00
F 10 OR MORE,BUT LESS THAN 50 EMPLOYEES. . . . . . . .... ... . . .. .. .. . $200.00 l
F 50 OR MORE EMPLOYEES. .. ... . ... .. ... . ... . . . . ..... . . .. .. ..... $400.00 �J
APPLICATION DUE DATE 1/01/87
gaza . 6&4k( au9-n�
APPLICANT'S SIGNATURE TITLE DATE
I
I
ASE RETURN THIS APPLICATION ALONG WITH YOUR REMITTANCE. PAYABLE TO THE CITY OF ASPEN.
U2
.T
:7
s,
Z
3S'
3.
ti� .. .... .mow..... ... .. ..
,• a a a .�
TAXPAYER NAME: S H R I V E R KEN
DBA; B A S K I N R O B B I N S RENEWAL DUE
APPLICATION DATE
LIABILITY INFORMATION FOR LICENSE
ACCOUNT NUMBER FOR THE YEAR
U"IN W Idww" COUNTY CITY INDUST TYPE LIABILITY DATE MO CAY YEAR
04-66701 57 001 5812 S t110183 1991 01 02 91
LOCATION 315 E HYMAN AVE 301 RETURN THIS COPY
ADDRESS ASPEN CO 81611
In consideration thereol,l do hereby certify that I have complied with all the items of sanitation as listed In the Colorado 7) 71-9
State Food Service Establishment Code,and that I have complied with all orders given me by authorized inspectors
of the State Department otPubfic Health. I do h9rebYsgrOG thatin the event that the itemi of sanitation are notcompfied (8) FEE
with, I will discontinue serving food until such time as requirements are met.
Aulho pnatun =5/, , TW _ Da
/� S 100.00
'179/ ' ®�
MAIL ONE COPY O �16 APPLICATION WITH A CHECK OR MONEY ORDER PAYABLE TO:
Nr ASPEN-PITKIN COUNTY
Lo CP�' , v' ENVIRONMENTAL HEALTH
130 S. GALENA
ASPEN, CO. 81611
101911291 046670100009717
MYLER, STULLER & SCHWARTZ
ATTORNEYS AT LAW
DAVID J.MYLER 106 S.MILL STRUT,SUITE 202
SANDRA M.SIULLER ��I_ ' Q ASPF ,COLOLADO 81611
ALAN E.SCHWART2 1 V OW)920-1018
FAX 920-CS9
November Or 1991
WV -8 y1
Diane Moore
City Planning Director
Aspen/Pitkin County Planning Office
130 South Galena
Aspen, CO 81611
RE: Notice of Appeal - L'Opera
Dear Diane:
In accordance with the provisions of Article XII, Section 12
- JO1.C, of the City of Aspen Land Use Code, please accept this
letter as a notice of appeal on behalf of Wheeler Square
Associates, Inc. and Gerard Philippon, d/b/a L'Opera, from the
determination by Bill Drueding, Zoning Enforcement Officer, that
Space 301 of the Wheeler Square Building cannot be remodeled and
occupied for the use intended by Mr. Philippon (Bakery/Cafe) as a
result of the application of the definition of a restaurant as
set forth in Section 3-101 of the Land Use Code.
Wheeler Square Associates, Inc. , as the owner of the space
in question, and Mr. Philippon, as the current tenant, respect-
fully disagree with Mr. Drueding's determination, as well as the
"Code interpretation" rendered on November 6, 199-4 which supports
that determination. Wheeler Square Associates, Inc. and Mr.
Philippon are not by this -letter seeking to appeal the November 6
Code interpretation, but rather, to appeal from the application
of the definition in question to the facts of this case.
Certainly, any application of a regulation may, and. often
does, involve elements of Code interpretation. And, in this
case, an interpretation of the intent of the service delivery
requirement in the definition of a restaurant was relied upon to
disqualify the off-street delivery access which does exist.
Nevertheless, we believe that the issues for appeal are more a
matter of the applicability of Code provisions, rather than
interpretation of the text. It is for that reason that we have
chosen to appeal pursuant to Article XII rather than Article XI.
We are, in fact, appealing from the decision or determination by
an administrative official rather than the interpretation of Code
text by the Planning Director.
i
• MYLER, STULLER & SCHWARTZ
Diane Moore
November 8, 1991
Page Two
On the basis of the foregoing, we request that our appeal be
scheduled for a hearing before the Board of Adjustment at the
earliest possible time. It is my understanding that the Board
meets "on demand" and usually on Thursdays . We are prepared to
meet with the Board on November 14th if that can be arranged.
Time is of the essence, and I would greatly appreciate whatever
effort can be made to expedite this appeal. If you have any
questions or need any additional information, please do not
hesitate to contact me immediately.
Very truly yours,
MYLER, STULLER & SCHWARTZ
By:
David J yler
Attorneys for Wheeler Square
Associates, Inc. and Gerard
Philippon, d/b/a L'Opera
DJM:caw
cc: Edward M. Caswall, Esq.
Bill Drueding
Wheeler Square Associates, Inc.
Gerard Philippon
4
Aspen/Pit ing Office
130 treet
Ap 611
(303) 9 920-5197
November 6, 1991
Mr. Dave Myler
Myler, Stuller & Schwartz
106 S. Mill Street
Suite 202
Aspen, CO 81611
RE: -Delivery Access Requirements for Restaurants
Dear Dave:
I have attached a copy of the code interpretation of Section 3-
101 of the Aspen Municipal Code regarding your client, L'Opera.
I would like to refer you to Chapter 24, Section 11-101 (F) of the
Code which states that "any person who has made a request for
interpretation may appeal the interpretation of the planning
director to the city council by filing a petition within thirty/
(30) days of the planning director's decision". As we had
discussed previously, if you appeal the decision to the city
council by November 18, 1991 we could schedule the item for the
November 25, 1991 Council meeting.
If you have any questions, please give me a call.
Sincerely,
Diane Moore 1
City Planning Director
CC: Bill Drueding
Jed Caswall
`bd mcyckd paper
ASPEN/PITRIN COUNTY
PLANNING AND ZONING OPPICE
CODE INTERPRETATION
JURISDICTION: City of Aspen
APPLICABLE CODE SECTION(S) : Chapter 24,, . Section 3-101 of the Aspen
Municipal Code, which refers to the definition subject section off the cc ode
The particular definition
interpretation is the definition for "restaurant".
EFFECTIVE DATE: November 6, 1991.
WRITTEN BY: Diane Moore, City Planning Director
BACKGROUND: Gerard Philippon has entered into a lease of Space 301
of the Wheeler Square Building at 315 East Hymn Avenue. Mr.
Philippon intends to operate a bakery/restaurant usiness with that
space which as defined in Section 3-101 of the Land considered to
be a restaurant Code.
The definition of a restaurant is as follows:
Restaurant means a commercial eating and drinking
establishment where food is prepared and served indoors, for
consumption on or off premises. A restaurant shall only be
permitted to prepare or serve food outdoors, in required open
space, when approved by the commission pursuant to Section 3-
101, Open Space. A restaurant shall be required to have
service delivery access from an alley or other off-street
service delivery area. if the restaurant is located off
ground level, it shall have use of an elevator or dumbwaiter
for service access. A grocery store or similar establishment
which prepares and serves food but which principally sells
packaged or nonperishable food and drink shall not be
considered a restaurant.
The City's Zoning Enforcement Officer, Bill Drueding, has not
signed off on the building permit to remodel the space in question
because there is no service delivery access from an alley or other
off-street service delivery area as stated in the definition of a
restuarant.
Space 301 of the Wheeler Square Building (formerly Baskin-Robbins)
does not have the required service delivery access from an alley
or other off-street service delivery area. Space 301 could be
accessed from the alley which is located immediately to the south
of the Wheeler Square Building but currently this alley is not
opened to allow delivery trucks to exit onto Monarch Street. If
service deliveries were to utilize this alley, deliveries would
have to go through the hallway separating several offices and then
through the courtyard and up the stairs for the delivery. Hence,
if this alley were opened to delivery trucks, this access would not
meet the intent of the language contained within the restaurant
definition as service deliveries would not have the required access
to the restaurant.
The definition of a restaurant was amended in April of 1988 to
specifically include the sentence which states that " a restaurant
shall be required to have service delivery access from an alley or
other off-street service delivery areas. If the restaurant is
located off ground level, it shall have use of an elevator or
dumbwaiter for service access".
The reason for the amendment of the definition was that service
delivery trucks were impeding the movement of traffic and parking
on city streets and potentially creating unsafe conditions. This
has been the topic and concern of previous discussions by the
Planning and Zoning Commission, CCLC and Council.
INTERPRETATION: The Planning Director's interpretation and
application of Section 3-101 of the Aspen Municipal Code to the
case at hand is that Space 301 of the Wheeler Square Building
cannot be used as a restaurant because there is no service delivery
access from an alley or other off-street service delivery area.
Since the restaurant definition has been revised, owners of
proposed restaurants have been required to have access to an alley
-for delivery of goods/services. Additionally, restaurants that are
located off ground level have been required to install elevators
or a dumbwaiter for service access. This code interpretation and
application is consistent with the past zoning enforcement
activities.
code.int.wheeler.
,r"x V)11011 —IJ-
MYLER, STULLER & SCHWARTZ
ATTORNEYS AT LAW
DAVID J. MYLER 106 S.MILL STREET, SUITE 202
SANDRA M. STULLER ASPEN,COLORADO 81611
ALAN E. SCHWARTZ (303)920-1018
FAX 920-1259
October 23, 1991
Aspen/Pitkin County Planning Director 2 3 '
c/o Diane Moore
City of Aspen
130 South Galena
Aspen, CO 81611
RE: Delivery Access Requirements for Restaurants
Dear Diane:
Gerard Philippon has entered into a lease of Space 301 of
the Wheeler Square Building at 315 East Hyman Avenue. Mr.
Philippon intends to operate a bakery business within that space
which will be called L'Opera. The business is considered to be a
restaurant as defined in Section 3-101 at page 1590 of the Land
Use Code. As such, the following provision applies:
A restaurant shall be required to have service delivery
access from an alley or other off-street service
delivery area.
Mr. Drueding has taken the position that Space 301 cannot be used
as a restaurant because there is no service delivery access from
an alley or other off-street service delivery area. As a result,
Mr. Philippon' s application for a building permit to remodel the
space is stalled.
We disagree with Mr. Drueding' s conclusion and, in addition,
believe that there is precedent for allowing the use even if
direct alley access is in question. Because the resolution of
this issue may involve the interpretation of the definition of a
restaurant, it was suggested by Mr. Drueding that I submit this
letter on behalf of Mr. Philippon and Wheeler Square Associates,
Inc. , the owner of the building, for your review under Article 11
of the Land Use Code.
A. Space 301 Has Delivery Service Access From an Alley or
Other Off-Street Service Delivery Area.
As shown in the plans and maps submitted herewith,
Space 301 can be accessed from the dedicated alley immediately to
the south of the Wheeler Square Building. Delivery vehicles can
and do park in the alley to the south of the Ute Mountaineer and,
MYLER, STULLER & SCHWARTZ
Aspen/Pitkin County Planning Director
October 23, 1991
Page Two
from that location, can make deliveries by crossing the mall to
the open hallway leading through the Wheeler Square Building to
Space 301 . The mall, the alley adjacent to Ute Mountaineer, and
the alley behind the Wheeler Square Building are all "off-street"
and thus there does exist an off-street delivery area which can
be used to provide delivery service to Space 301. In fact, the
"delivery area" adjacent to the Ute Mountaineer is now utilized
on a regular basis for delivery to other merchants in the vicini-
ty.
B. Space 301 Has Been Used as a Restaurant Since 1986 .
Prior to being leased to Mr. Philippon, the space was
occupied by Baskin-Robbins. Baskin-Robbins was "a commercial
eating and drinking establishment where food was prepared and
served indoors, for consumption on and off premises" . Thus,
Baskin-Robbins was a restaurant as that term is defined in
Section 3-101 . Admittedly, the extent of food "preparation" was
not as extensive as other restaurants. However, the finished
product did require on-site preparation and did not consist of
pre-packaged or non-perishable food items which are the charac-
teristics of a food store exempt from the definition of a
restaurant.
It is our understanding that where a space has been
utilized as a restaurant since before the adoption of the alley
access requirement, that that requirement has not been enforced.
In effect, the space is grandfathered. We believe that Space 301
is entitled to similar treatment, particularly where the delivery
impacts will be minimal, as described below.
C. Even if the Direct Alley Access is Not Utilized, the
Incremental Impact of Service Deliveries to Space 301 Will Be
Minimal.
Virtually all products requiring delivery at L'Opera
will be provided by Shamrock Foods and Nobel/Sysco. These
vendors already make numerous and extensive deliveries to several
food-oriented businesses in the vicinity of and within the
Wheeler Square Building. Mr. Philippon estimates that he will
require no more than one delivery per week from each supplier.
Deliveries to L'Opera from the parking location customarily used
by these suppliers will result in no more than 10-15 minutes per
week of additional delivery time. Most importantly, deliveries
will be made from a vehicle which will be parked in the vicinity
in any event to serve existing businesses.
MYLER, STULLER & SCHWARTZ
Aspen/Pitkin County Planning Director
October 23, 1991
Page Three
Both Mr. Philippon and the landlord understand the need
to minimize the use of streets for deliveries, particularly at
those times of the day when such use interferes with parking and
traffic movement. They will agree, as a condition of building
permit and certificate of occupancy approval, to utilize their
best efforts to require of purveyors that deliveries be made in
the mornings, before 6 a.m. , and that, where vehicles are able to
utili�:; the alley to the south of the Ute Mountaineer, that that
serve as the staging location for deliveries to L'Opera.
In conclusion, I believe that the facts and circumstances of
this case warrant an interpretation of the service access re-
quirements which will allow the continued use of Space 301 as a
restaurant. . If you disagree, Mr. Philippon and Wheeler Square
Associates expressly reserve the right to seek a review of the
decision by the Zoning Enforcement Officer in applying the
definition of a restaurant and the service access requirements
set forth therein by the Board of Adjustment pursuant to
Article 12 of the Land Use Code.
If you have any questions or need additional information,
please do not hesitate to contact me. Time is of the essence in
this matter, and I would appreciate a response at your earliest
opportunity.
Very truly yours,
MYLER, STUL & SC TZ
By:
David J. Xyler
DJM:caw
Enclosures
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3-101 ASPEN CODE
exercise room,playground and playfield activity center or club house. A recreation club may
include kitchen facilities,bathing and toilet facilities,locker facilities and halls for assembly.
Remodeling means any act which changes one or more of the exterior architectural
features of a structure,designated as a H,Historic Overlay District.
Residential use means used or intended for use exclusively fqr dwelling purposes,but not
including hotel or lodge rooms.
Resident occupied unit means any dwelling unit which is limited, by deed restriction or
other guarantee running with the land,to occupancy(but not to price or income limitations)
by qualified employees in Pitkin County,meeting the guidelines or approval of the city coun-
cil's housing designee. When considering granting approval to an individual not meeting the
guidelines as a qualffied employee,the housing designee shall take into account the length of
residence of the individual in the community and the place where he or she votes and pays
personal income taxes.
Restaurant means a commercial eating and drinking establishment where food is pre-
pared and served indoors, for consumption on or off premises. A restaurant shall only be
permitted to prepare or serve food outdoors, in required open space, when approved by the
commission pursuant to Section 3-101, Open Space. A restaurant shall be required to have
service delivery access from an alley or other off-street service delivery area.If the restaurant
is located off ground level,it shall have use of an elevator or dumbwaiter for service access. A
grocery store or similar establishment which prepares and serves food but which principally
sells packaged or nonperishable food and drink shall not be considered a restaurant.
Reversed corner lot means a corner lot which is bounded on three(3)sides by streets.
Right-of-way means the land on which facilities such as roads,railroads,canals,utilities,
and other similar uses exist or may be constructed.
Roominghouse means the same as boardinghouse.
Satellite dish antenna or satellite radio frequency signal reception and/or transmission
device means a dish-shaped or parabolic-shaped reception or transmission device, whose
antenna is more than two(2)feet in height and/or"dish"component is more than two(2)feet
in diameter,which is used for the reception and/or transmission of satellite signals,including
but not limited to television signals, AM radio signals, FM radio signals, telemetry signals,
data communications signals or any other reception or transmission signals using free air
space as a medium,whether for commercial or private use;provided;
A. Area and bulk requirements. The installation of a satellite dish antenna shall not
cause a violation of area and bulk requirements within the zone district in which it is
located, unless a variance is granted by the board of adjustment.
B. Right-of-way. A satellite dish antenna shall not be placed on an easement or in the
city right-of-way,unless an encroachment permit is secured.
C. Increased danger. The installation of a satellite dish antenna shall not cause any
increased danger to neighboring property in the event of collapse or other failure of
the antenna structure.
Supp.No. 1
1590
5-209 ASPEN CODE
S. Public building for administration;
S. Restaurant,cabaret and night club,tea groom;
10. Retail commercial establishment limited to the following,and similar uses: Antique
sto re, appliance store, art supply store, art gallery,bakery,bookstom, camera shop,
candy,tobacco or cigarette store,clothes store,computer sales store,florist shop,food
market, furniture store, gift shop, hardware store, hobby shop, jewelry shop, job
printing shop,key shop, liquor store,music store,office supply store,pet shop,paint
and wallpaper store,photography shop,record store,shoe store.,.sporting goods store,
stationery store,variety store,video sales and rental store;
11. Service commercial establishments limited to the following and similar uses: Cater-
ing service,financial institution,personal service including barber and beauty shop,
custom sewing, dry cleaning pickup station, laundromat, ski repair and rental,
shop-craft industry, tailoring and shoe repair shop, parking lot or parking garage,
studio for instruction in the arts,radio or television broadcasting facility;
12. Rental,repair and wholesaling facilities in conjunction with any of the uses provided
in Section 5-209.B.1-11,provided all such activity is clearly incidental and accessory
to the permitted use and conducted within a building;
13. Storage of materials accessory to any of the uses provided in Section 5-209.B.1.
through 1.2.,provided all such storage is located within s strwdure;
14. Residential dwelling units which are located above street level commercial uses in
historic landmarks, provided that the residential dwelling unit is restricted to six-
month minimum leases;
15. Accessory residential dwellings restricted to affordable housing guidelines;
16. Detached residential dwellings designated as historic landmarks;
17. Newspaper publishing office;
18. Home occupations;and
19. Accessory buildings and uses.
C. Conditional cow& fke follteYing uses are permitted as conditional ufts in the Commer-
cial Core(CC)zone district, subject to the standards and procedures established in Article 7,
Dingion 3.
1. Recreational and entertainment establishments limited to the following and similar
uses. Business,fraternal or social club or hall;ice or roller-skating rink;
2. Gasoline service station;
3. Hotel;
4. Newspaper and magazine printing;
5.- Day care center;
Supp.No. 1
1638
x ti bI`� Y r�
130 S.Galena 13UILDING PERMIT APPLICATION General
008/1611 A :!V*PITKIN REGIONAL BLXLOING OEPiAR ENT Construction
Permit
PITKIN COUNTY 0 CITY OF ASPEN
AWicard to complete numbered spaces or.:y. No. (�
BLOCK LEGAL I LOT N0_-, O TRACT OR SUBDIVISION 1 SEE ATTACHED SHEET)2 DESC.
ss � � ��•, 21P PHONE 1
0"AcTOR _F
" nEC,T R MAILADORESS PHONE LICENSE NO.
ENOINEER`� MNL ADDRESS UIDEPISE NO.
6.
CLASS of WORK:
7 O NEW O ADDITION ALTERATION O REPAIR O MOVE O WRECK cNSUS CODE TOTAL FEE
DMX n PLAN CHECK FEE PERMIT FEE !%USE TAX DER.
8. a ��_
VALUATION OF WORK �-�
10. Remarks �• $g11w�FL) No.of Swrms OOC.Load
' �ft�
11 n
NO.OF BEDROOMS u"Tana Fin Spri d ors Regiwed:
EXISTING ADDED \�" C ❑Vag D No
jNo.of Dw"N units OFFSTREET PARKING SPACES:
covww utloowrw
aPECU►L APPROVALS REOIRREG AUTHORIZED NY DATE
ZONING D L*m
H.P.C.
FUCture Count: fjt, r , PARK DEDICATION
HEALTH DEPARTMENT
FIREPLACE
PPESUMMrTAI
TACCC�
er amr
vnwDlOW
FIRE MARSH
AL
-A SPRINKLER Jq fj O10E °m O1°E WATER TAPy G 7 3 o v G'ri;
f �E OTHER
AT P RMITS ARE RE FOR�ELE�CTR�ICAL,PL�BING,
HEATIN ,VENTILATING OR AIR CONDITIOIlf�IG: SELECTION OF METHOD FOR PAYMENT OF USE TAX
THIS PERMITBECOMES NUUJWD VOID IFWORK OR CONSTRUCTION O MONTHLY USE OF QUARTERLY RETURNS WILL BE SUBMITTED.
AUTHORIZED IS NOT COMMENCED WITHIN 120/180 DAYS,OR IF CON-
STRUCTION OR WORK IS SUSPENDED OR ABANDONED FOR A p DEPOSIT METHOD:3%OF 25%OF PERMIT VALUATION PAID NOW
PERIOD OF 120/180 DAYS ATANYTIME AFTER WORK IS COMMENCED. AT ISSUANCE. FINAL REPORT ON TOTAL ACTUAL MATERIALS
I HEREBY CERTIFY THAT 1 HAVE READ AND EXAMINED THIS APPLICATION AND COST MUST BE FILED WITHIN 60 DAYS AFTER COMPLETION OF
KNOW THE SAME TO BE TRUE AND CORRECT.ALL PROVISIONS OF LAWS AND WORK. GENERAL CONTRACTORS CHOOSING THIS METHOD
ORDINANCES GOVERN " 1N?E OF WORK WILL BE COMPLIED WITH
RSPECIFIED EREIN T.THE GRANTING OF A PERMIT DOES NOT MUST REPORT AND REMIT TAX FOR ALL SUBCONTRACTORS
GIVE A HORITY VIOLATE OR CANCEL THE PROVISIONS OF THAT DO NOT OBTAIN THEIR OWN PERMIT.ATE REGULATING CONSTRUCTION OR THE PER-U 1 Q EXEMPT: STATE 8 PITKIN COUNTY RESALE NO.
EXEMPT ORGANIZATION
THIS FORMA IS A PERMIT ONLY WHEN VALIDATED.
WORK STARTED WITHOUT PERMIT WILL BE DOUBLE FEE
Plan Check VWklation Pw *Valuation 7%Use Tax Deposh VNldation
�r Al WHITE-FILE COPY GREEN-F*"NCE DEPT PINK-43UNDING DEPARTMENT YELLOW-ASSESSOR GOLD-CUSTOMER
PLUMBING PERMIT APP ICATION
° PITKIN COUNTY O CITY OF ASPE
542. 4
i
[IADO�:O. TRACT (OSEE ATTACHED SHEET)
OWNER r I I � MAIL ADDRESS ZIP PHONE
L ADDRESS PHONE LICENSE NO.
DUd
=4 OR N MAIL AO PHONE LICENSE NO.
{I{
i ENGINEER MAIL ADDRESS PHONE LICENSE NO,
LENDER MAIL ADDRESS BRANCH
UK OF OU1LDING
Class o6 work: O.NEW O ADDITION ALTERATION O REPAIR
OsaCribB work
f
I —
SPECIAL CONDITIONS:
PERMIT FEES
t8Y: Type of Fixture or Item Fe
IZAAZ5 � Water Closet(Toilet)
O , Bathtub
Lavatory(Wash Basin)
APPLICATION ACCEPTED BY: NS CHECKED Y: APPROVED FOR Shower
/ Kitchen Sink S Disp.
Dishwasher
7 Laundry Tray
OTICE Clothes washer
ER IT BECOMES NULL AND VOID IF WORK OR CONSTRUCTION
AUTHORIZED IS NOT COMMENCED WITHIN 120DAYS OR IFCONSTRUC- Water Heater M/BTU ea
TON OR WORK IS SUSPENDED OR ABANDONED FOR A PERIOD OF 120 Urinal
DAYS AT ANY TIME AFTER WORK IS COMMENCED. Drinking Fountain
I tM ERE9YCERTIFYTHATI HAVE READ AND EXAMINED THIS APPLICATIONAND KNOW
TNESAMETOBETRUE AND CORRECT.ALL PROVISIONS OFLAWSANDORDINANCES Floor Sink or Drain
QMRtMQ THIS TYPE OF WORK WILL BE COMPLIED WITH WHETHER SPECIFIED
"ERREIN OR NOT.THE GRANTING OF A PERMIT DOES NOT PRESUME TO ONE ,*Iep Sink
AUT"Daw TO VIOLATE OR CANCEL THE PROVISIONS OF ANY OTHER STATE OR Gas Systems: Outlets
LOCAL LAW REGULATING CONSTRUCTION OR THE PERFORMANCE OF
CONSTRUCTION. Water Piping d Treating Equip.
Waste Interceptor
vacuum Breakers
Fan Coil Units)
lo
OR AUTHORIZED AGENT (DATE)
y
TORE LA-
OWNER(IF OWNER BUILDER) (DATq ;PERMIT> _
TOTAL FEE t
WHEN PROPERLY VALIDATED(IN THIS SPACE)THIS IS YOUR PERMIT
PLAN CHECK VALIDATION CK- M.O. CASH PERMIT VALIDATION CK "^ CASH
COPIES:WHITE—INSPECTOR YELLOW—APPLICANT PINK—FILE Rev.7/8
3 4
6 8
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TI
Ain 13
8 9=door urdax-C,axt�eX 14 t6iAcr CPj: 5
2 muy}► �so . . _ ei'r_i9era�oY' it area
.3. � •�fu �'., r � g ur.&r au,,�.r sard11 kh Ycf r. '15 ` Ad C�is&-I Cc se,
4 marble�o!p -fir refr i ac�r' _10 Cxe mach 16 Cdd d'►sy cam'
-
5 17 Exiei b?c�fi m
Brcad os,d�� mixer
91 Pass�oY wagons wf GD�t�er{ 18 CvOawr Se�fit�
12 CrtPe
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