HomeMy WebLinkAboutminutes.boa.19920723 CITY OF ASPEN
BOARD OF ADJUSTMENT
JULY 23, 1992
4.00 P.M.
SHERIFF'S MEETING ROOM
IN COUNTY COURTHOUSE
A G E N D A
I. CALL TO ORDER
MINUTES
JUNE 4, JUNE 8, JUNE 25 & JULY 1, 1992
II. CASE #92-6
DOUGLAS P. ALLEN
Continued from June 25, 1992
III. ROBERT FINK #92-8
Continued from June 251 1992
And July 9, 1992
PACKET INFORMATION FOR THESE CASES WAS DISTRIBUTED PREVIOUSLY
NOTICE OF PUBLIC HEARING
CASE #92-8
ROBERT FINK
BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT
TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE
VARIANCE DESCRIBED BELOW:
Pursuant to the Official Code of Aspen of June 25, 1962 , as
amended, a public hearing will be held in the Council Room, City
Hall, Aspen, Colorado, (or at such other place as the meeting may
be then adjourned) to consider an application filed with the said
Board of Adjustment requesting authority for variance from the
provisions of the Zoning Ordinance, Chapter 24 , Official Code of
Aspen. All persons affected by the proposed variance are invited
to appear and state their views, protests or objections. If you
cannot appear personally at such meeting, 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 25, 1992
Time: 4 : 00 p.m.
Owner for Variance: Appellant for Variance:
Name: ROBERT K. FINK JIM WILSON
Address: BOX 12247, ASPEN, CO.
Location or description of property:
734 W. SMUGGLER; LOTS K, L, M--BLOCK 14
Variance Requested: Property is located in the R-6 zoning
category. Fence exceeds allowable height. Chapter 24 Sec. 301
"Definition-fencelo. No fence shall exceed six (6) feet above
natural grade. Applicant appears to be requesting a fence height
variance varying between 8 inches to 2 feet 4 inches. Two walls
encroach into the side yard setback. Chapter 24 (Sec. 5-201 (D) 5
Aspen Municipal Code. Applicant appears to be requesting an 11
foot 4 inch and a_ 14 foot setback variance for two 7 foot plus high
walls. Zoe
Will applicant be represented by counsel: Yes: No: X
The City of Aspen Board of Adjustment
130 South Galena Street, Aspen, Colorado 81611
Remo Lavagnino, Chairman Jan Carney Deputy City Clerk
RECORD OF PROCEEDINGS
BOARD OF ADJUSTMENT JULY 23 1992
Chairman Remo Lavagnino called meeting to order at 4 : 30pm.
Answering roll call were Bill Martin, Ron Erickson, Rick Head, Anne
Austin-Clapper, Charlie Paterson and Remo Lavagnino.
MINUTES
JUNE 4, 8, 25, 1992 AND JULY 1, 1992
After additions and corrections these minutes were approved.
CASE #92-6
DOUGLAS P. ALLEN
MOTION
Remo: I move that we table this case at the applicant' s request
to date certain of August 27, 1992 .
For the record: There was no one from the public to make any
comment regarding this case.
Anne seconded the motion with all in favor.
CASE #92-8
ROBERT FINK
Remo read into the record request for variance. (attached in
record)
Affidavit for notification by mailing and posting were presented.
(attached in record)
Jim Wilson, representative for Robert Fink: I used to be a
building inspector locally for 6 years in Pitkin County and the
City of Aspen. I have had some experience with fences. The fence
regulations used to be actually in the building code section of the
City amendments. A portion of them are in the building code. A
portion of them were in the zoning regulations. One of the fence
variances that I do recall actually went through the Board of
Examiners and Appeals. So I have been around regulations and
actually have had experience with variances and Bob has asked me
to help him out.
We are asking for some deviations from the code. Our request isn't
contrary to the public interest in any way. That is typically
life, health, safety and public welfare. And that is where the
Fire Marshall ' s letter comes in. It states that public safety is
not at risk anywhere. In fact it sort of adds fire protection.
They used to build town fire walls. So in that regard it is a
benefit more than anything.
BAM7 . 23 . 92
Our request is for a minimum variance to allow for Bob's private,
peaceful enjoyment of limited yard space that he has. And I
believe I explained in my original letter and if you refer to your
drawing he has already voluntarily removed quite a bit of that
unnecessary wall back toward the alley.
If you look right on the drawings below there is an indication of
a planter and we carry that line all the way out to the alley.
That is what caught Drueding's attention originally. It was pretty
ugly. So he has voluntarily cut that down because it served
virtually no purpose at all. We left that little step there just
for a little cleaner line -as a transition. - And this is a little
step up there to the mechanical area.
We feel that our request is not only minimum but we are looking at
some calculations on the total wall area that is not in compliance
is just under 10% of the total by square footage.
Along the property line which would be the east elevation drawing
I think that is an 86ft total length. And in excess of 6ft. So
it is about half. So you can see that visually along there. And
then he has also got a screen going across the back here that is
in accordance of the code.
Anne: What screen is in conformance?
Wilson: This is the neighbor's fence and then this screen goes all
the way across. It is within the setback. Once you are in the
setbacks---
And we have got what we decided was perhaps unreasonable exposure
resulting both to Bob and his neighbors to use this deck area
without some sort of privacy. As we already discussed it is
existing. We regret the fact that it is existing. It was the
result of an oversight.
I came in after the fact. And unfortunately these things are a lot
easier to advise beforehand than after the fact. I am aware that
there is a strategy to go ahead and build things and then come to
the Board and leverage a decision. That is not the intent here at
-all.-
The way I understand it Bob hired some local professionals. Randy
Wedum a local architect and local landscape architect, Julie
Marshal. He wanted to create some sort of design that functions
well with what he had on the original house built by Stan Mathis,
also another local architect.
As the project was under construction we realized the deck was
2
BAM7 . 23 . 92
raised 30 inches above grade which is fine. You are allowed to
have that 30 inch deck in the setbacks as well. And the fence was
at the 6 foot limit. But that left them only about 4 feet, I
believe, of wall above the deck surface line. The west elevation
in the picture here shows the line of the deck. It is now 5 feet
6 from the top of the wall to the line of the deck and Bob figured
that is enough privacy.
Again looking through the code and trying to understand the intents
and some sort of standard where this 6 feet comes from and it is
fairly common everywhere that fences would be 6 feet. So I would
assume that is the standard for privacy. So if we have a set
standard for privacy and Bob is standing up on his deck with
something less than that he is not really getting what is intended
by the 6 foot standard.
So he asked the contractor--the contractor mentioned that it might
be easier to throw on a couple more courses of block--John Boggs
was the contractor--
Remo: He was the one that decided to add the extra block?
Wilson: Yes.
Remo: He had a permit to build a 6 foot fence.
Wilson: There was a permit out for a 6 foot fence. The architect
who did the design and until they hit that 6 foot line and we were
standing right on the deck nobody realized that that wasn't enough
privacy. So on the advice of the contractor they put on 2 more
courses of block and continued on with the project.
Again the intent of this was to #1 meet the level of the existing
deck in the architectural lines and transition and work it into the
house. And #2 he wants to get up and enjoy the air and the views
etc like everyone else. And not necessarily imposing on anyone
else' s views.
I also asked Bill Drueding what he thought the intent of the fence
was and he agreed, as I thought, that it didn't want to obstruct
views and want to keep ventilation, circulation in the yard and
that sort of thing. Bob's use of the yard is just that. It is
still a yard. Nothing has been compromised in that regard.
We don't want 8 foot walls around every property in Aspen by any
means. We are not here to ask you to approve any extreme like
that. This is a limited minimum variance to allow Bob to enjoy
what he came to town for.
It is not an issue that affects the community as a whole as
3
BAM7 . 23 . 92
something up on Red Mountain that everyone can see. This is a
neighborhood thing. It is a small garden space that Bob has
created for sculptures. I am sure those of you who were there will
agree it is beautiful and very tastefully done. And we find out
it is virtually invisible except for the neighbor, the person on
the other side of the wall and maybe some neighbors behind him.
It is almost invisible from the street when you are walking by.
It is not something that you really notice. You have to look
pretty hard for it. And the lot next door is vacant right now.
When you get to a situation where you have a structure on the
adjacent lot this thing is just going to disappear.
From the Alley side I think what he has done is a beautification
sort of thing--without a doubt the nicest looking alley view on
the block. And there _is going to be some_ landscaping of the
parking area at the back.
The mechanical situation: Bill and I have talked already that
maybe this isn't a wall but it is in fact a room. There is a roof
on the thing. It is a flat roof that Bob is going to make into a
planter to make it look nice. It is virtually invisible.
John and Patricia Chouman: I live next door at 800 West Smuggler
and it doesn't bother me. It doesn't bother anyone. It is very
lovely.
Anne: Are you the house directly behind the alley?
Patricia: No. I am right next door.
Wilson: We are happy to work with Bill. You can call this a
planter area--anything you want. But in a general sense I want you
to understand the big picture and what we have got here.
Remo: How high is the planter? If you set a planter on top of
it--
Drueding: The planter would add onto the structure and that needs
a different variance than the fence.
Remo: And underneath the planter is some storage?
Wilson: Mechanical equipment.
Remo: Enclosed as a structure? Is it a structure that is on--
Drueding: I went through the definition of fences. A structure
is a structure. A structure is not a fence.
Remo: Well, you can't store anything on a fence--under a fence.
4
BAM7 . 23 . 92
Wilson: OK. It would be a structure.
Ron: It has got width, depth, length and height.
Wilson: Yes. And stuff in it.
Rick: Is that fence then FAR?
Drueding: It would add FAR.
Remo: That is not part of the original request. Are we not to
consider this? Is that what you are asking? It is not in their
variance. It is a structure that is in the setbacks.
Drueding: The structure needs a variance.
Remo: It is not on this request.
MPT (correction) Erickson: What was said at that point was that
Bill Drueding and the applicant had agreed that the specifics of
the variance that was going to be requested would be agreed to at
that meeting. They didn't know if it would be called a structure
or a fencd or a wall. And they would agree at the meeting.
Drueding: If he is not going to take this roof off and it is not
a fence, this is a structure that requires a variance within the
setback.
Remo: With FAR considerations.
Everyone then studied and discussed over the plans where setbacks
were and what variances needed to be asked for and what the
measurements were.
Wilson: If it wasn't there we would have all this ugly mechanical
equipment showing. That would be more offensive to the neighbors
than what we have got now. In the commercial districts downtown
you are required enclosure of mechanical equipment and trash. They
don't want to see it downtown.
Bob brought his concept of what it would be like to use his yard
in this town. It is not imposing on anyone's life style. And in
fact I think he has created a nice architectural atmosphere for his
neighborhood. Aspen is a blend of life styles. And this is Bob's
idea ? magazine they did a little survey of what various
people want in housing and at the luxury end of the market they
said that people are starting to look in communities for some way
to interact with their neighbors. They are looking for some sort
of front porch or little courtyard kind of deal because they miss
the interaction with the neighbors that they used to have in the
5
BAM7 . 23 . 92
old days.
I know we don't want the town full of fortresses. But at the same
time what Bob has done is try to live a little bit of his life
outdoors and interact with the neighbors. In fact this whole
process is done in interacting with his neighbors.
I think you have the authority to grant a variance here. And it
is within the spirit of the City of Aspen. You are going to find
that his neighbors are very supportive of what Bob has done. I
know you are concerned about setting precedent. The only precedent
that you might be setting here is that you will look at the
situations individually and make your decision based on individual
merits. It seems to fit the community standards. And I believe
that is within your authority.
Robert Fink: Bill red tagged my wall sometime in April. I am
prepared to say that I probably haven't had a good night' s sleep
since that happened. I also am prepared to say that my ? has
expired right not because to me this is pretty crucial to my first
_? And I think it is important that I review some the events
? make it clear that ? And that is probably the thing
that bothers me the most because I made a great effort to hire a
bunch of people, architects, contractors, everybody to do all of
these technical ?_ And I would just briefly review what
happened.
When I look at this home one of the great appeals to me was that
it was a townhouse that I could create courtyards and integrate it
to the house. So I went ahead and even before I purchased the home
I went ahead and hired an architect, Randy Wedum, who I thought was
qualified. I was advised by ? evaluate the site. I told him
what my plans were and that I planned to do the outside and that
privacy was really crucial because I was trying _?_• It is a
small piece of property and I wanted to make sure that I could do
what I wanted to do.
Before I did anything I had him come over and survey it.
Unfortunately I have learned since then that Randy Wedum was or is
being sued for having designed a house that was too high and that
they are having to lower it. But I didn't know that until
recently. And he gave me the green light and told me I could do
what I wanted to do. So I was recommended a contractor, John
Boggs, who I also retained. I want to just make it clear that
there is no way that I would have committed the resources and the
time to have done what I did if I thought there was a question of
the law because I have got too much--I know that is not the issue
but there is a lot of expenses and I am not sure we would have
bought the home had I known that I couldn't do what I wanted to do.
6
BAM7 . 23 . 92
To me I look at my home as the inside and the outside. When you
step out the door, you can have breakfast and you step out the door
it is the hot tub. And that is the way I created it. I have been
working on it since November 1st. People have been working on the
inside and the outside to create this environment. I have chosen
to make Aspen my permanent residence. I plan to live here full
time and I wanted to sort of ?
So I don't think the risk of this--my background is venture risk.
So that is why and every time I take a risk I evaluate _? So
the outside area was designed and I left it in the hands of the
architect and the contractor and the permits. ? and I left
it to them to be done.
The 2 feet of wall is the difference between private and non-
private. This is to be private and I designed it that way. But
I was never presented with the option of a step-down hot tub. That
was never presented to me. We have an existing deck out there and
it made sense to extend that deck an additional length which is
the setback. That is the problem. And it turns out that what it
is is that I haven't really understood this idea of 6 feet from
natural grade and all that. It was within my area it is less than
6 feet. This 6 feet problem is on the other side of the wall. As
I read it the ground slopes down about 2 feet from one end to the
other. This wall sticking out at the alley it really was rather
large but I never looked at it much because it was the other side.
And when I learned about that I--and then Jim said "That really
does block a view" . I didn't need it. It was not what I--There
was no privacy from that wall so I just cut it down because it
didn't really--it was just there.
The differential that this created--the step up is 2 or 3 steps-
the step up to this hot tub area it has to be 2 feet because the
rest of the wall is _?_ that is the proper level.
So at any rate that fateful day when I got called out they were
building the wall. It was the last day and Boggs, the contractor,
called me out and said "You know, you keep talking about privacy
and I just want you to know that with this height, you are not
going to have any privacy. And I kind of looked at him. I was in
shock. And I said "Well, what will we do? What do you suggest?"
And he said "Well, I would add a couple of courses --about 16
inches" . And I said to him "Is this legal?" Wedum, at that time,
was in the Virgin Islands. He wasn't there. And Boggs there was
no reason for him to say differently--he didn't design it--And he
said "No problem" .
Remo: Who was this person who wasn't there?
7
BAM7 . 23 . 92
Fink: The architect wasn't there. The contractor was the one who
said it would be OK to do it.
Remo: He had the plans and the permit?
Fink: He had the plans that he said we could add to. It was the
only thing we could do with that. And I just assumed it was. And
I don't think he was malicious. I don't see that he was. I think
he just thought it was OK. In any event I just never thought much
about it.
Drueding obviously came out and determined and his interpretation
of the wall was illegal and I received this red tag. I am here
today to respectfully request that the Board consider where I am
coming from and furnish me with a variance. I have in order to
arrive at a successful outcome I did a number of things. One was
I hired Jim Wilson because he is experienced with the Building
Department. He is experienced with interpreting the code and has
an understanding with what the intent of the code was.
Important to me is I contacted all of the neighbors and I was very
moved and very overwhelmed by the fact that I have unanimous
support. Nancy Altia is here. She owns the vacant lot that
adjoins my property and she is probably by far the most impacted
of anybody.
I know this is kind of a board of last resort in a sense so I tried
to think of whatever I could think of to help me. So I contacted
my friend, Terry Hale, who I know is very involved in the Community
Plan and I asked him to take a look at it and see how he thought
about it. He is here and has a few words to say.
Fink then passed and explained photographs of the property and wall
to the Board to examine.
He then read into the record a letter from the adjacent lot owner
to the east stating support of the fence.
He then read into the record letters from James and Ramona
Markalunas, Charles and Helga Marqusee, Kathleen Albert, Ticia
Choumas, Ann Miller, LeRay Digiglia and Gaston Alciatore. These
letters are all from close neighbors and all in support of this
variance. (attached in record)
Nancy Altia: My husband and I own the property directly to the
east of Bob's home and we plan to build a house on this piece of
property and so the wall is obviously important to us. We feel
that it will lend privacy to our side yard and therefore we are
very much in favor of it and that is why we have written a letter.
That is why we have been supportive of Bob. That is why I am here
8
BAM7 . 23 . 92
today and I would just like to say that I respectfully hope that
you will approve this request.
Terry Hale: Bob has asked me to take a look at this for him. I
think originally he was very overwhelmed by the process and by
where he suddenly found himself and I think he has done a beautiful
job really of defending himself and explaining his motivations and
sort of makes me think that maybe what I am going to do here
tonight maybe a touch redundant.
He was worried because this a an emotional thing for him. This
isn't just a wall. There are not a lot of people who buy a home
and then hire an architect and a landscape architect to do a yard
as small as Bob' s. It is not much of a yard. It is very small.
There is a strip about 15 to 20 feet down the side. Very small by
most standards.
Here was a guy who came to town and looked for a home that he could
make a home out of. And Bob is an art lover. He collects stuff
and buys stuff and has for some time. And so he had a vision for
what he wanted to do here in terms of the yard. He wanted to live
in town and he found this house and he was so concerned about it
that he hired the architect before he bought the house in order to
see if this little vision that he had about this little tiny space
could be achieved. And he was told he could indeed.
And of course Aspen' s building codes precede themselves as a
reputation and he was concerned about that. He knew this was a
tough town to build in. And so he determined that he would do it
right because he was going to live here. He is not a hit-and-run
purchaser or a guy who was going to roll the house. He was going
to put himself in this thing and designing that wall was not just
a wall as those of you have seen it. There is a waterfall in that
wall. It is a rather expensive wall. And not only did it provide
privacy, it contains sculpture that he was proud of and was crucial
to his enjoyment of that space.
He was concerned about this little area that is under concern right
now. It is almost part of the house. I think he has told you that
he chose this house with the ability to provide this little
atmosphere--this little area on this being paramount consideration
so to that end he went ahead and hired an architect and then a
landscape architect and they spent some considerable time together
working out plans in order to put Bob' s vision of what he wanted
onto paper. And he assumed naturally I think as anyone of would
do in those circumstances that these professionals would lead him
through the maize of what he had to do to conform to the codes and
regulations here.
From what happened is basically as you have heard. They simply
9
BAM7 . 23 . 92
built this vision as it were and turn out that they had a glitch
in their building process. And as all of us know here in town and
any other town every building project has glitches. Somebody
screws up once in a while. And that is why your Board was created
was to determine which of those glitches has to be torn down, which
of them has to be repaired, which of them can get a variance.
Certainly this was one of those things. It has been suggested to
Bob "You could sue your architect or builder" or something like
that. And that is not consistent with Bob's personality. It is
not consistent with the way he felt about the builder or the
architect. He believes as I do that it was just a screw-up. They
never noticed that in fact the grade on that lot next door slopes
backwards 2 feet from the front to the end. And that aggravated
the problem of the 6 foot wall. Certainly 6 foot from the deck of
that patio was more than adequate. In fact, they didn't use it
all. The wall from the patio grade is under 6 feet.
They screwed up. No question about it. When they noticed that the
builder made a suggestion. And Bob again relying on the expertise
of the people that he hired because he wanted to do this right both
because he loved this project and because he put a lot of money
into it which he certainly did not want to put at risk by cutting
corners or trying to do something illegal hold everything that was
done according to Hoyle. They didn't wait until after inspection
and raise the wall. It was done, he had the final inspection yet.
Everything was by the books and done as responsibly as I think Bob
was capable of doing given his understanding of building trades
which was minimal.
He has a good understand of this vision and so he hired out people
who purported to be expert to solve these other problems. And I
believe they screwed up. Nevertheless he wasn't given the choice
of sinking that tub. He wasn't given the choice of some
alternative that would solve the problem and so the wall became a
reality. And I think it became so in good faith. And with
hindsight he should probably have come here for the variance first
just as he is tonight and requested that given the slope of the lot
and the problems of the deck to see if in fact it wouldn't be
granted because it didn't show. It is not visible from the street.
It doesn't impact his neighbors. Everybody approved to it. You
can't even see it unless you walk onto the lot and get over there
on the site. So it is not something that is offensive. It
certainly has no architectural risk. It is not a problem that
violates property lines. It is not structurally unsafe. His
neighbors don't disapprove. It doesn't violate character of the
community. It isn't cheap to put it in. And he sought the advice
he could to avoid having to be here tonight.
I know he is embarrassed and chagrined that he is here and he is
10
BAM7 . 23 . 92
worried which is why he asked me to come and talk for him because
he really wasn't sure that he could communicate his feelings
properly. He has never done this before and I can understand with
the investment in time and emotion that he has in this thing--it
is a serious thing.
I think it is a glitch. And I think that if the neighbors
disapprove, he should have a problem. If it was visible from the
street and it would set a precedent, he should have a problem. Or
if it was structurally unsound, he should have a problem. But it
is something really that was built with the best of expertise that
he could afford. And went to some effort to find the proper
architect and landscape people to design this for him and he really
had no intention of creating a problem. And I think he is real
sorry that he is here tonight.
Again I want to point out and remind you that what we are talking
about here is not a wall that is in violation. It is a few inches
on that wall which is aggravated by the descending slope with a lot
on the other site owned by people who approve and appreciate what
he has done for their future privacy and his own. And so again we
really would hope that you would take a look at this as something
unique because it is a small variance and unique because it is an
invisible variance and unique because Bob didn't build an 8 foot
wall to protect his patio. He built less than 6 to provide privacy
for himself. It is just this little glitch of the grade on the
other lot that creates this problem.
Admittedly it is a oversight and if it were a normal brick wall it
would be a minor thing to take it down. But it is a large wall.
It is a very expensive piece of art. It is a lot of things that
are a whole lot more than simply a wall to separate a neighbor from
a neighbor. It represents a life style to Bob and sort of thing
that he had hoped to have here in Aspen. It is kind of a dream for
him. And he really did, in my opinion, everything he could do to
do it properly and responsibly. And so I am in hopes that you view
this in that light. I am impressed as was Bob by the support he
has had from his neighborhood. Everyone he talked to was in
support of this and appreciated the time and the effort that he
spent with landscape architects and architects and builders to do
a good job to add quality to the neighborhood.
Fink: I guess it has all been said. I just pray that you view it
the way that I do and everybody that I have asked to take a look
at it does. I know that this is it. And to me it is not just, as
Terry said, it is certainly substantial. It is not just that. It
is a life style, not just privacy. If I have to take this
down ? It is invisible. Nobody benefits. That is why the
neighbors are so supportive.
11
BAM7. 23 . 92
It just seems to me that what is it all about? To enhance the
neighborhood? I really--before I knew there was a problem--I mean
I had done everything on both sides of the wall. I landscaped that
back alley. I put landscaping back there. I not only had my own
interest in mind but I had the neighbors interest in mind. I
thought I have got to live in this neighborhood and as Terry said
earlier that one of the benefits is I didn't know most of these
neighbors before and I have gotten to know them all now. And so
from that point of view I am real pleased. So I hope that you all
will look favorably on what I have done.
Remo asked for public comment.
There was no further public comment at this time.
Anne: There is a step-down in the wall over on the side that is
not in violation. Was that originally higher and then cut down as
you cut this side down? Or was this step always here?
Wilson: That was the way it was originally built.
Anne: It was originally built like that.
Wilson: It was originally built without a permit but he went and
got a permit for that extension of the wall.
Remo: Why was it built without a permit?
Fink: I didn't realize that--I always planned to extend the wall.
When we got the approval I guess that wasn't on the approval--
Anne: What was the approval for then? I thought you had it for
everywhere.
Fink: It was everything except that last section which is less
than 6 feet. I have the permit now.
Anne: So your permit actually covered from here to the alley?
Fink: Right.
Anne: And then you added--
Fink: I do have a permit now.
Anne: But you built this section here before you ever got red
tagged.
Fink: I built everything before it was red tagged.
12
BAM7 . 23 .92
Remo: Before you ever got a permit?
Fink: No. I got the permit. The area that is being red tagged
I got a permit for. Originally.
The latter part--wall was added and then--it was legal. When I got
the red tag I realized I was told I didn't have a permit. I was
told that after I built it. So they built it and they never
applied for this additional permit. And then when Bill came along
and looked at it he said "You don't have a permit for that either" .
Anne: The reason I brought that up is that they are showing a 6
foot height line here. And they actually did intend to build it-
-it seems like they built it within that 6 feet there and then they
raised it up there because it went up.
Fink: There is nothing over 6 feet on my side of the wall.
Remo: If you had built that deck not 30 inches but 6 feet up, you
would have expected another 6 feet of fence for your privacy?
Ron: Part of the deck was already there.
Fink: There is a deck that goes behind here. That was already
there. What they did was extend it from here to here. And they
just followed the line to here. So they sunk the hot tub into
that. So I just looked--first of all I never realized--I don't
know about setbacks about this issue. This was legal beyond all
of this and this is an extension of that line.
Remo read into the record: After further inspection it was
discovered that the 2 walls encroaching for side yard setback are
really a covered structure which requires additional rear yard
setback. Any structure over 30 inches in height in the setback
requires a variance for the difference. The staff does not support
this variance request because we can find no unique circumstances
peculiar to this property that would require the additional height.
Drueding: I didn't write that--that particular sentence. And I
am staff. I don't care about making circumstances. That is not
up to us to find. So I don't agree with that sentence. And staff
feels these are the rules--6 feet high--no structures in setbacks.
And the Board can decide the variances.
Remo: Who wrote this then?
Drueding: Francis Krizmanich.
Remo: Well, it's part of the record.
13
BAM7. 23 . 92
Drueding: That is right. I am talking for myself now,
representing staff. Myself, I would not have said that we can find
no unique circumstances to this property because that is not up to
us to find.
Ron:
Drueding: It is a condominiumized duplex.
Ron: Is there a combined side yard setback needed for bulk
structure?
Drueding: Yes. This particular structure varies with the line.
You have a minimum and a total.
Ron: I want to know what the total is. This fence is built on the
lot line, right?
Drueding: Yes.
Ron: So- the 5 yard that would normally be on the east side of this
property is lost. Correct?
Drueding: It is a 9, OOOsgft lot. Side yard is minimum 10 feet.
And 9, 000 would be a total of 30. The structure is encroaching the
setbacks.
Ron: What happens if somebody wanted to build on the west side
duplex. That west side duplex.
Drueding: They could not do that.
Ron: In other words would the west side be jeopardized because of
the action of the east side.
Drueding: Yes. Because you still need your total.
Fink: As part of my condominium agreement it specifically states
that I am permitted to develop a hot tub area or a courtyard in my
section.
Fink: On the other side they are not permitted to build anything
without my approval. That is part of the agreement. In other
words nothing can be done on the general property--nobody can put
anything there unless I agree.
Ron: What I am saying is that as a total we have a 30 foot setback
requirement. 2 weeks ago we were talking about duplexes and what
is happening with floor area ratio and what I am saying is that the
fact that this structure encroaches does that affect the other
14
BAM7 . 23 . 92
side? Is he here to talk about it? Who owns the west side?
Wilson: It is still under construction.
Ron: He is the one most impacted.
Fink: What I am saying is that there are 2 people who own this
condominium. There is a condominium agreement. And the
condominium agreement specifically permits me to put that wall in,
to put a hot tub in and to do everything that I did do. And the
condominium agreement requires that anybody who purchases the other
side cannot do anything in that whole area around the outside is
general property. And he cannot do anything without my approval.
Remo: But does your hot tub include the mechanical equipment
structure? In your agreement?
Fink: I have the right to build across the side from one end of
the property--the alley to the street. I can do whatever I want
to do there.
Anne: Not a structure though.
Ron: The condominium declaration does not allow you to break the
law.
Fink: I didn't mean to say that. I am saying that within the law,
I was permitted to--there used to be a fence there. What happened
was that fence was taken down. It was a fence on the line when I
moved in there. Where the wall is. And I replaced the fence with
a wall.
Anne: But what Ron is trying to get at is that the wall and the
structure do not impact on that setback. There is a setback
allowed whereas the mechanical room does remain an impact. The
mechanical room takes away FAR but it also takes away that 30 foot
allowable on either side.
Ron: Let's just say you approved a similar hot tub structure on
the west side of the building. You said "Sure go ahead and do it" .
He couldn't do this because he would have to still provide 30 feet
on his side because there are no feet on the other side.
Wilson: First of all it is a corner lot so he has got to keep--
he chooses his front yard which I assume is now Smuggler Street.
Then you also have to increase the size of the side yard to 2/3 of
total setback was so he has still got to provide 20--this unit has
to provide 20 feet.
I have got 22 back here. It is up to this corner of unit B. And
15
BAM7 . 23 . 92
Bob is over here. Now because of this chopped up stuff we are
being measured through the lot--if they were to build their hot
tub--do the same thing somewhere else then you still get the same
benefit of Bob's ? side yard. What I am saying you offset
the things.
Drueding: So the real total required--10 here and 20 here. You
have 15 here and 15 here. So here you need 20 and then here. So
what we have here is--if we put this hot tub here like that then
we may not get our 20 here is what we are saying.
MPT
Drueding: In this area here--he still needs a total--he actually
has 30 here and take away that 10 you are still OK.
Ron: My question simply was that if we granted this variance, does
this in any way negatively impact what the owner to the west side
can do in terms of the setbacks?
There were lots of numbers bandied about.
Remo: If we grant him a variance does that get rid of that--
Drueding: All it says--this guy cannot build in this particular
spot. Anywhere else is OK.
Charlie: The other owner can come in for a variance at a later
date.
Ron: The structure, the mechanical room as it is currently
constructed--it' s in the side yard setback--the structure is also
over height.
Drueding: As a structure, no. As a fence, yes.
Ron: So as a structure we would have to grant a variance for a
structure in the side yard setback. The other one would be over
height fence.
Drueding: Right.
Ron: So it is one or the other.
Drueding: Right.
Ron: Our guidelines mention 2 things. Practical difficulty,
hardship. Can you precisely tell us what is your hardship or
practical difficulty for #1 the wall, and #2 the mechanical
structure.
Wilson: The direction of our presentation was #1 here after the
16
BAM7. 23 . 92
hardship, special circumstances--that sort of thing. This #2
"Granting the variance would not confer upon the applicant any
special privileges denied by the Aspen Area Comprehensive Plan" .
It is all of those things.
I think it is still within your powers and duties to grant a
variance based on that.
Rick: I have a question for Bill. In all the years I have been
on this Board we have always talked about setbacks being for fire
lane and protection to allow fire trucks to access a burning
building. How does a fire truck go between the 2 homes with a
solid fence? What is the purpose of that law if you can--a re-
inforced concrete fence like this? I 'd hate to see that fire truck
after they finished--
Remo: The trucks go into setbacks.
Rick: They aren't going into this setback.
Remo: They can go in a certain amount into that--
Anne: Not from the alley they can't.
Remo: Well, they can from the front.
Rick: I find it amusing. We have used the argument for years and
now suddenly I am looking at something--they are never going to get
a truck down this.
Remo: They have a structure within the setback right now. If that
structure weren't there they can easily go through that.
Charlie: I think that conversation is obsolete because originally
those fire trucks were not what we have today. Now they have the
ladder that is 40 foot long and can go anywhere they want to with
a hose.
Rick: I think I can understand what Ron is driving at. He is
looking for something that we can hang our hat on here. Privacy
for a hot tub is not a standard, I don't think, we have ever used
for a hardship. And I think what he is trying to draw from you
guys is some reason or justification for granting this variance
based on the criteria which we can use.
Remo: The arguments were presented already.
There was then further study over plans.
Drueding: I approved a fence. I didn't approve this mechanical
17
BAM7 . 23 . 92
storage. This permit says for a fence.
Remo: The permit is for a fence.
Drueding: For a fence.
Remo: And you have indicated that this is part of what you
consider the fence.
Drueding: That's right. A 6 foot high fence. I did not approve
a mechanical storage.
Remo: So mechanically he could have--
This was mechanical storage but it was only enclosed by a fence.
Drueding: I did not consider this or question this. I was not
asked to do that.
Remo: This fence was just for access to--
Drueding: This was a fence. It doesn't say anything about a roof.
Remo: It doesn't show a roof.
Drueding: I issued this in good faith that they were building a
fence as this thing indicates.
Anne: When he bought the house this was already here. Now did
they go get a permit to do this?
Drueding: I have not checked that.
Anne: So all you are aware of that they came and asked you for
this.
Drueding: That's right and that's what I gave them a permit for.
It is for a fence. This is what I issued. And this is what they
have.
Ron: So you can't find another building permit to cover this spa
or anything else.
Drueding: No.
Remo: And the original plans show the 6 foot fence, right?
Drueding: Yes. That's it.
Fink: ? We keep getting people coming over to look at and
18
BAM7 . 23 . 92
examine different things. The hot tub is 30 inches. Does that
require--
Drueding: It needs a permit because it requires plumbing. It
requires plumbing inspection.
-Fink=: I know we have that--plumbing, electricity- and - all that.
I am positive we have all of that.
MPT
Drueding: A fence is a very simple thing.
Charlie: Did you sign this?
Drueding: Yes, I signed it--for this.
Charlie: So you usually just handle fences. But you wouldn't
handle structures.
Drueding: Yes, I would. I handle every permit that goes through
the City. I was doing a permit for a fence. This is the original.
This is what I did.
Bill: Where is the permit for this?
Drueding: That is not an issue here.
I can't check every plan to make sure everything is asked for here.
Wilson: If it is 30 inches above grade it is considered--
Remo: Except he is saying if it has got plumbing then it needs a
permit.
Wilson: Right. We have got the permits, inspections etc.
Remo: The question I asked was that mechanical equipment placement
designed by the architect?
Wilson: No. The contractor. The contractor pulled all the
permits.
Drueding: This mechanical storage was never sent by me in the
permit stage. This went through as a--I approved this fence is
what I approved. This I did not even pay attention to. And I
don't know that it was ever permitted in this configuration.
Wilson: Who wrote this note? Somebody saw it. It was on there
that they ? a sign.
Drueding: OK. I signed my portion--
19
BAM7 . 23 . 92
Wilson: You signed it December 4th. The Building Dept wrote this
December 6th.
Drueding: That's fine. I signed this for a fence.
Remo: Your permit is for a fence.
Wilson: Yes. I understand that.
MPT
Drueding: What usually happens here a permit comes in. I sign as
zoning compliance. The Building Dept they check other things. It
was never sent back up to me.
Wilson: Well, they get this back and the thing is stamped off and
it is on here. And they proceeded. Maybe it is an oversight on
everyone's part. But when I checked plans and if there was
something that you don't understand. It looks strange, you ask
questions to make sure.
Remo: Yes. I understand.
Drueding: Maybe you did a better job than I do. It came in for
a fence permit. He didn't ask for--
Remo: It came in for a fence permit. It didn't come for any of
these other things. He gave you that fence permit. And he
considered this a fence.
Drueding: And if it did slip by me, it is still illegal.
Remo: You are telling me that the contractor and architect were
well aware of the permits involved.
Fink: They took care of it and they knew. I told them to work
together and had them build these things. I know that with regard
to this thing over here is that when Francis was over he made a
comment about having overlooked this.
All I know is I told the people working for me what I want. And
they designed it and asked my approval and I never paid any
attention. I assumed they were getting everything permited they
needed.
I know the electrical, I know these people were absolutely saying
we can't go here until the person comes and gives us electrical
approval. We can't do this and so on.
Remo: Where is the planter? Is the planter over this structure?
When was that?
20
BAM7 . 23 . 92
Wilson: It was there when I got there.
Remo: Is this an architecturally designed planter? Who told the
contractor to put the planter in? I understand where it is. I
wanted to know how it got there.
Fink: I have done rather extensive landscaping to beautify this
and I probably the only person to see that roof. I told the
contractor "Let's make a planter out of it" .
Remo: Was there a roof on it at the time?
Fink: The roof was there.
Remo: Why was the roof put on?
Wilson: Because it is a mechanical room.
Remo: But you only got a permit for a fence.
Wilson: That is not clear to them what the permit is for.
Obviously they went ahead and put the roof on it. And Bill wasn't
clear what their request was. Maybe the architect wasn't clear in
making the request.
Fink: I assumed if we were putting in a mechanical room we would
have to cover it.
Remo asked if there were any other questions.
So in effect no one really brought to the attention or brought to
or got permit for the use of this as a structure.
Wilson: It was obvious to the Building Department this was a
mechanical room based on what I see on that--the red line note that
the building inspector put on there.
Remo: Where is the permit for that structure?
Much talking and rattling of papers.
Wilson: So we have got the 6 foot wall and--
Anne: What does the writing say?
Wilson: It says "The spa equipment--(2 or 3 people reading at same
time) --mechanical protection 9066--equipment installed to terms of
manufacturer's listing" .
21
BAM7. 23 . 92
Anne: It still doesn't say anything about a room or structure.
Remo then closed the public portion of the meeting.
Hale: It is pretty scary how complex these rules are and the
issues we are discussing for a private citizen which I am. And I
listened the hearing today about the setbacks and whatnot. And it
is of little wonder to me that Bob certainly was not prepared to
wind his way through the restrictions and complications.
What he wanted to do was to simply landscape the yard and put in
a hot tub with some privacy and display some of his art and so I
think it is important again--part of the hardship for me and the
reason I got interested and agreed to help him on that is I
determined that he hadn't tried to rip anybody off and slip a wall
through that wasn't properly applied for. It is very obvious to
me that he turned this over to an appropriate licensed expert to
help him do this. And it appears that as in every building job I
am aware of there were some glitches. And again I am going to come
back with that as the issue here. Somebody screwed up. And the
real issue is is the screw-up offensive enough to correct at the
expense that it would take. And is there any value to correcting
the harm, the visual comfort of the neighborhood and certainly
destroy Bob's hot tub and not allow him to enjoy his privacy.
I agree with you--privacy is not a very good reason to grant a
variance. And there is probably no precedent on it. But there are
some other issues here of a guy who tried to do the right thing.
He hired all the right people. He did pull the permits. If the
communication on those permits got screwed up back and forth in the
Building Department, I hardly think he can be held responsible for
that. I think he really tried to do what he tried to do in an
honest and forthright fashion. I think what we are looking at here
is a glitch that occurred. It happens all the time. The question
is is it an offensive one? Is it something that you have to make
him tear down and does it harm anyone. And I can't find anybody
that wants that.
Remo again closed the public portion of the meeting.
Ron: We have 2 issues here. One is the side yard wall. The
second is the mechanical structure covering the mechanical
equipment for the hot tub. I would like to deal with the wall
first. I have a hard time finding a hardship or a practical
difficulty here.
I think generally speaking I probably would not grant a variance
for that. I could be easily swayed in the other direction. So I
am really ambivilant about that. I can't find a hardship to grant
him a variance but then on the other hand I can't see it doing any
22
BAM7 .23 . 92
damage or impacting the neighbor or community or anything in any
negative way. So I want to hold out on that one.
The second part, however--the mechanical room I find it negatively
impacts the neighbor to the west. It takes from him some of his
property rights. And for that reason I would not grant that
variance.
Charlie: I have got a hard time coming up with a real hardship.
But when I start looking at this complex issue the way it is being
presented I can see how a layman can find a real nightmare in our
rules and regulations and can make an honest mistake of this
nature.
As an architect I found the same sort of thing. I have a tough
time doing any kind of building because there are so many rules and
regulations that come up that are almost impossible to keep track
of. Now we deal with it at every meeting so it is a lot easier for
us to understand. But imagine someone who is doing this for the
first time--the only time. They come to Aspen and they get into
the situation where they depend on people who are supposed to know
what they are doing. We are talking about the architects and the
builders.
I walked the outside of the wall_ and said "Boy that is a high
wall" . That is a high wall. And then I went on the inside and
walked around and it is barely 4 feet. It is just over 4 feet.
The 6 foot level would only be 4 feet on the inside. The level
changes so drastically. If I was a builder and I didn't know what
the rules were I would say "Well, OK I will measure 6 feet from the
floor where the deck is and I am OK" . And that is what I suspect
happened.
Remo: But he had experts, Charlie?
Charlie: Right.
Remo: And all of a sudden the experts are all flunkies.
Charlie: Yes. Here we are supposed to be experts and we are
flunkies too. Because we know no more--even today we have to ask
questions of the--
Remo: We asked those questions to get the right solution.
Charlie: I am coming to a situation where ordinarily I wouldn't
grant this variance. But under the circumstances the way it is
presented I feel that I would be more inclined. I would like to
sit on that 6 foot or 8 foot fence whatever it happens to be for
a while longer like a lot of us are doing right now because we
23
BAM7 . 23 . 92
really want to grant this variance. We have got to find hardship
and practical difficulty.
Now I see a garage that was built down underneath that deck. I see
a problem with trying to drop--if you want a hot tub in that little
space, try to drop that hot tub down where you would have the
privacy and it is a practical difficulty. So the gentleman had a
practical difficulty because he couldn't drop the tub down but he
wanted the tub.
Remo: Why couldn't he drop the tub, Charlie?
Charlie: Because there is a garage right there that goes down.
It is at the side. If you look at it, the garage is right there.
What are you going to do? Have a high deck and then have a great
big hole where the tub gets dropped down?
I consider that a practical difficulty. And I consider the fact
that you have got to have a mechanical room to operate this
somewhere. And where are you going to put it?
That is the way it is right now. If I started from scratch, maybe
that could have been handled differently. But the deck was already
there. I would be more inclined to grant the variance than not
grant the variance. On both issues.
Bill: I agree with Charlie and Ron that hardship and practical
difficulty probably are very difficult to see our way clear to
grant. But on the other hand you have to commend the owner for
doing some things on the property that are outstanding. I drive
by there all the time. So I have to commend him for that. I agree
with Charlie and someone else mentioned that regulations in the
building code are a problem in Aspen. In following the drawings,
as I see it I see the drawings show mechanical facilities behind
that fence request. So to me there is clear understanding that
there was going to be a hot tub built. Then there was going to be
a mechanical facility and it was located there. So in asking for
the fence that was a clear request and that was what Bill was
considering as a fence.
The fact that they put the mechanical in there and then put a roof
on it and improved the appearance of the area to me is commendable.
And the last one is that if the neighbors did not see this as
something that was attractively done and find no objection to it,
although we can't find any reason for justifying it under hardship
or practical difficulty, I would be inclined to agree with Charlie
that I would pass on both of them.
Remo: Even though you can't find any practical difficulty or
hardship. But those are our only reason for this Board to grant
24
BAM7 . 23 . 92
variances.
Bill: I know that. But I do not see the fairness in asking the
individual--and I agree that fairness is probably not our
consideration--but if there was someone who objected to it in the
neighborhood and on both sides back and forth, no one has objected
to it. To ask them to lower it, I don't see that is our--
Anne: This is a tough one. I feel like I am sitting on a fence
with it. I guess as far as the mechanical problem, that aspect of
it was brought to us late. When I was looking at the property, I
certainly didn't look to see if there was an alternative way of
handling that situation. I don't know if the mechanical room could
be put in the garage or could have been put next to the house.
I think that if we had been presented with options showing us that
this was the last resort--and it is a room. It is not just a
fence. And I have to agree with Ron' s comment that it is impacting
the neighbor especially in light of that last case that we heard
that they are taking it from the other.
So I think that I would be turning down the mechanical part of this
variance.
As far as the fence goes I am really on the line there and I guess
I would probably lean towards giving the variance on the fence.
And yet I find it hard to find a hardship. But I know that when
you have got a slope in the lot it is very ambiguous. I know the
code says you take it from a certain point and you measure the
height with that. And I look at the Ritz Carlton and to me that
thing is humongous. Everybody said we could only have a 3-story
limit in town. To me I think there is a lot of misunderstanding
when you go from one side of the lot to another. So I probably
would be in favor of granting the variance on the fence.
Rick: I want to applaud the applicant for a very thorough approach
to this variance. I am persuaded by some of the arguments that
have been brought forward. I think that if we made Mr. Fink go
ahead and tear down that portion that is not in compliance it would
create more of a hardship than the damage that it is now creating.
Lowering the roof on it' s mechanical room I don't see what purpose
that would serve.
Remo: Don't you think that hardship was created by the applicant
in the first place?
Rick: Unfortunately I don't think it was created by the applicant.
It was created by the men who he is being charged for in an
unprofessional manner. And he is being brought to pay for it by
the guys who built this thing--the architect and the builder. This
25
BAM7 . 23 .92
is a horrible situation. And I really think that there is clearly
a hardship on this poor guy for going out of his way to do this
thing correctly. And now to make him bring it back into compliance
for screw-ups that someone else has made I think would unfairly
burden him and create more of a hardship than what we are trying
to clarify.
Further I think the support of his neighbors, although I must say
I admire that they are all typed on the same damned typewriter,
they are different signatures--I would be in favor of granting both
of these variances. I cannot see how making him tear all that
stuff out is going to accomplish anything--just exacerbate an
already problematical situation.
Remo: I guess I am the lone dissenter here then today. First of
all, Charlie, the applicant said "They weren't presented with a
step-down hot tub" . So again the onus is again on his so-called
experts that he was supposed to get all this information from.
Something else was brought up constantly by Mr. Wilson that this
does not affect the community. I think it does affect the
community in that it does encourage exceptions to the code without
valid reasons according to our guidelines to grant variances. And
that should be sufficient enough in itself in that everyone is
going to come to us for something that they have created that will
have to be taken care of by granting them a variance.
Now if this was something unique to the property itself--everyone
comes under the same code requirements. No one is denied their
rights. They have the same rights that everyone else has in that
same vicinity and zone. They choose to do things differently to
create this situation whereby by raising the hot tub to 30 inches,
now they have a problem. I used the example if he raised it 6
feet, would that mean would you grant them then a variance for
another 6 feet so that he could get his privacy?
He had no reason to put that hot tub where it existed. He could
have put it at grade level or below grade or could have done
something in compliance if he had thought about his privacy. He
has got experts. He paid these people to give him--and in some
cases he took it upon himself to do things. He had a contractor
who knew these things. He is an expert. And Mr. Fink told the
contractor to add 2 more courses, the contractor, being an expert,
should have said "We will have to look into this. Maybe we should
get a permit. This is not part of our permit application. This
is not what was approved" .
If they want to take it upon themselves to do something to
exacerbate a condition and make something illegal then it is not
up to us to allow them to do that. We don't have to condone things
26
BAM7 . 23 . 92
like that. Screw-ups by applicants or his experts are not valid
reasons for this Board to grant variances. I know that even in
some places where privacy isn't an issue where aesthetics come in,
we didn't even consider that. The step up to the grade of
illegality was for aesthetic reasons. Even if we did grant the
variance it should be cut off at that level. It has nothing to do
with privacy anymore. It has to do with aesthetics. And we won't
consider those. We never have before and I don't see why we should
now.
I believe that the hardship was created by the applicant.
Ron: This is the section in question? It is all interior to the
next door lot. This fence. This wall is interior. I think that
say we cut it down here so it stops here. This was within the
envelope of the building. It wouldn't impact anybody else around
them. Why do you have a problem other than philosophically--the
next door neighbors have come in and said "Listen, I have no
problem with this here" . The neighbors have said they have no
problem here.
Remo: I can give you an answer to that right away. I don't care
if it was a 12 foot fence. The more I don't see my neighbor the
better it is for me. So I don't care how high that fence is. So
therefore it becomes a mute question.
Charlie: I think that your position is the most difficult
position. I really admire you for taking it and every point you
made is valid. Every point you made is valid. I couldn't disagree
with one thing you have said. But I think that our Board has a job
of compassion. And I think that this is a case of compassion. This
is where we have to change. And this is why I am voting "Yes" on
this variance.
And I really want to say that what you have said I couldn't quarrel
with one point that you have made. I think you have made the
points absolutely perfect. If we went by the rules on everything
we have been through in our life, you would 100% right. But we
don't.
Remo: We would still grant variances. Because we would have
situations where people really do suffer from the strict adherence
to the code or the literal interpretation of the code. And that
is where we grant variances. And that is where we do our job.
That is all. Our job is not to go outside those parameters to use
our own--if these were a bunch of bad people or you didn't like
them in the community you would have a subjective prejudice against
granting variances. And I don't think that is the way this Board
should function. We should look at everything equally objectively
and on the basis of the evidence that is presented to us then we
27
BAM7 . 23 . 92
make our findings based on that. And I just gave you the reasons
I can't vote for this.
Bill: I agree with Charlie and that is why you are chairman of the
Board. I commend you but I want to make the comment on Ron's point
of affecting the adjacent property owner--Unit A or B whichever it
is. And this is sort of a question. Is it not true that the
condominium declaration that the buyer of the unit will know that
Mr. Fink has the control over what happens on that side. And
therefore that individual when he buys that unit he knows that and
he will know that if he wants to build a hot tub he will have to
come before us?
Ron: No, he does not know that. All he knows is that Mr. Fink has
control, commission to do what he wants to do on that left side.
It has nothing to do with code, nothing to do with variances or
anything else. That is something that takes place here today by
our actions. It has nothing to do with the condominium
declarations. Nowhere in the condo decs does it say "Because I
built the structure in the setbacks you can't build on that side" .
Or you have to come in for a variance. It doesn't say that.
Bill: It doesn't say that but the individual that buys it, if he
does his homework he will know that he can't do it.
Ron: You are talking about homework. We are talking about experts
here and I think that the expert position is that it is a lot more
difficult to determine whether a person needs a setback. I look
at the point of view--I bought it. Go ahead and do what you want
to do I give you my permission. Write it off. We got a case like
that 2 weeks ago. All of a sudden that person goes back a month
later or a year later and decides to build something and they find
out they can't do it. Mr. Fink has no right to grant that
permission. The City does because it is in the setbacks. That is
my problem.
Anne: The other issue that we just glanced over was since this is
a structure--FAR--
MPT
Remo: Any other discussion?
There was no further comment.
He then re-opened the public portion of the hearing.
Fink: I would respond to your comments: It seems to me that it
needs to be a case-by-case analysis. That is why you people are
experts. But there has got to be--you can't--like that hedge I
showed you. You said one rule applies to everybody. Every
situation is different. There are different circumstances that are
28
BAM7. 23 . 92
involved.
Here is the situation of my home. Nobody, the neighbors around me
are in favor of this. They are not only saying "OK to do it", they
say they actively support it. The person who sits up in the
building behind me looks down at that roof. She doesn't want to
look at mechanical equipment. So she is in favor.
Anne: That neighbor has no idea that that structure then takes
away any right on the other side of the property. They are not
aware of that.
Fink: Let' s say I remove that roof and I just keep the wall around
it. So now they look out their window and look down on all of this
equipment. If I lived next door I would rather look at a planter
than look down at a bunch of equipment.
Ron: That isn't exactly true. Just looking at that roof does not
make that structure legal.
MPT
Fink: Let's say then that I go the full route
MPT
I have to bring it down to 6 feet. So now you have a 6 foot with
a hole in the top and they are looking down at all this equipment.
And they are hearing the noise of the pumps. And there is no other
reasonable place for the equipment.
MPT
It would take up half the garage. I would have a garage full of
equipment. So there is not real other reasonable way to do it in
my view.
Remo: You are bringing in information now that wasn't presented
to us at the time that we had this open meeting. I want your
comments to be directed towards whatever we said here in this
closed portion of the meeting.
Fink: I thought I was.
Remo: The mechanical aspects of it--we can start a whole other
discussion here on--first of all not putting the hot tub at 30
inches high but putting it at ground level where you wouldn't have
had this problem to begin with. There might be other
considerations on where the mechanical equipment could have been
put outside the setback. We don't know that.
Fink: I am sharing with you because the comments were made so I
am sharing with you some of the discussion that went on in placing
the mechanical room and I know there is no other place. As far as
29
BAM7 . 23 . 92
the sinking of the hot tub, I don't know whether that would work
or not. It wasn't presented to me. I don't know whether we could
have sunk it in that hole and stepped down into it. We couldn't
do it. I know that was not one of the options that I had when I
put it in. I was presented with this and it was a question which
way do you want to face the hot tub--this way or that way. Nobody
said to me "Sink the whole thing down and put it underground" . I
never think if it as a possibility. As far as the neighbor is
concerned, thank you for coming up.
I guess--Ron what you said about knowing about the code. But I
can tell you now is that ? because it is a beautiful front
lawn. In fact somebody was here yesterday and he is not going to
buy this place I don't think because of the fact that he says
"There is no outdoor place. I am an outdoor person. You have this
fabulous place on your side. I can't do that on my side" . I
didn't say anything. He just came. He was looking. I invited
him to come in the house.
Wilson: If you want to notify the neighbors, we will just record
it--any decision--
Ron: No. You had the opportunity for public comment. It was
posted. I don't hear anything from that neighbor. You have made
the statement that everyone around--every neighbor is supporting
this issue. I have seen nothing from the west side neighbor. That
is all I am saying.
Fink: He approved the condominium paper already.
Wilson: Wasn't part of the problem--the one neighbor didn't know
what was going on? So all I am saying is we will record this so
that when they do their homework--we will record any decision so
there is no surprises for anybody. I can do that. That always
turns up in any title search.
With to whether or not you have the authority I think you
are a little too rigid here. I understand--for the record and I
guess my other suggestion would be to continue this until we get
an official reading. Section 10-104 Standards applicable to all
variances. In order to authorize any variance in terms of this
chapter the Board of Adjustment shall make the finding that the
following 3 circumstances are this: A. to grant the variance
generally consistent with the purposes, goals, objectives, policies
of the Aspen Area Comprehensive Plan and this chapter" . B. To
grant a ,minimum variance that will make possible the reasonable
use of a parcel, building or structure. C. Literal interpretation
and enforcement in terms would deprive the applicant of the rights
commonly enjoyed by other parcels in the same zone district that
would cause the applicant unnecessary hardship or practical
30
BAM7 . 23 . 92
difficulty. In determining whether and applicant's rights would
be deprived the Board shall consider whether either of the
following conditions apply. And I emphasize the word "either" .
The first condition is there are special conditions and
circumstances which are unique to the parcel, building or structure
which are not applicable to other parcels, structures or buildings
in the same zone district.
To boil it all down you get hardship.
MPT
--which do not result from the action of the applicant. So there
is your hardship. Then there is an "or" . And we are in an
either/or situation here. The second part of that is "Granting a
variance will not confer upon the applicant any special privilege
denied by the Aspen Area Comprehensive Plan" . Is he contrary to
anything about the community? Or that you wouldn't grant to
anybody else in the same circumstances.
Remo: We aren't.
Wilson: That is your position. I think you are staying a little
too focused. It is to be a democratic system. Bill and the staff
level and everybody else calls the literal rules and I think what
this is saying is your job is to consider a little bit more of
that.
Remo: Our job is for you to show us a unique situation on your
piece of property that no one else in your same vicinity and zone
is afflicted with. And that therefor you have an unusual situation
which allows us a literal interpretation of the code with the
hardship or practical difficulty if you are to abide by the code.
We are here to relieve situations like that. Before you built the
hot tub or the fence yours was a normal piece of property. If you
didn't have any unusual things happening on that property. You
built this 6 foot fence and used the setbacks, you wouldn't even
be before us.
Wilson: He is the only guy and I have said this before, with the
monster homes behind him. I think that is unique and that is a
reason for privacy.
Remo: He is still allowed to use his maximum FAR. He is allowed
to do this. It is his right to do that. It is not his right to
build a fence--especially if it is a regular normal lot--over the
required 6 feet.
Wilson: I read it--If he has no negative impact on the community
or the Aspen Area Comprehensive plan.
31
BAM7 . 23 . 92
Remo: Well, a lot of people could--
MPT
MOTION
Rick: I move--let's start with the fence.
I move that we approve the variance of Case #92-8 and the fence of
approximately 43 linear feet as stated in the application.
Remo: And the various heights.
Anne: I don't think it is at 8 foot
Rick: As described in the coloration of green on the attached
drawing.
Charlie seconded the motion.
Anne: We are not talking about the planter now.
Charlie: Consider it just like Bill took it--that yellow line
around on his plans as being the fence.
Remo: I would question this portion here which is an aesthetic
consideration. It has nothing to do with privacy.
Anne: I would as soon leave it. He has cut the fence down already.
Roll call vote: Ron, no, Charlie, yes, Rick, yes, Anne, yes, Remo,
no.
This motion defeated.
MOTION
Rick: I move to approve the second portion of the variance which
is described as the planter on the exhibit as a structure described
as a planter enclosing the mechanical equipment.
Anne seconded the motion.
Roll call vote:
Ron, no, Charlie, yes, Rick, yes, Anne, no, Remo, no.
Request denied.
Charlie made a motion to adjourn meeting.
Anne seconded the motion with all in favor.
Time was 6:40 PM.
Janice M. Carney, City D ty Clerk
32