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Home My WebLink Aboutcoa.lu.ca.422 e cooper ave.appeal of interpretation.0082.2014.aslu Air] THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0082.2014.ASLU PARCEL ID NUMBERS n/a PROJECTS ADDRESS 422 E. COOPER AVE PLANNER JENNIFER PHELAN CASE DESCRIPTION INTERPRETATION REPRESENTATIVE FERGUSON LAW FIRM DATE OF FINAL ACTION 2.17.14 CLOSED BY ANGELA SCOREY ON: 4.30.14 o g2 2°« • ��t Permits �R � fide lit Record -Navigate Form Reports Format Tab 1✓lelp . _j Jump 1 i+larn Custom Fiefs Ranting Status Fee Summa Actions Routing History � gPerini type .Aspen Land Use Perini f 2813.ASLU I Address 122 E COOPERATE ' j Apt{'Snite� I � ° city MPEN i State CO zip 81611 Z ;I Perini Information Master permit Rotitrg queue asln0� pied 12�19�'2813 J Project Status'pending Approved j Description PUCATION FOR ANAPPEAL OF INTERPRETATION ISSUED DEC 22013 1, Issued Closed,'Final Submitted Clod Running nays n Expires 1t1f281� aw•ner it Last name (RICAN OPTICAL SERVICES i , i. _� First name i22 E COOPER 1 ASPEN CO 81,511 i Phone X9'8 828 8288 Address r Applicant j ]Owner is applicant? %Contractor is applicant? Last name FERGUSON LAW FRt1 First came PkTTHB'b` 119 5 SPRIPdG ST Phase ,(970 928 5288 Cost= 29588 rdresc ASPFN CO 81E11 Lender Cast name i First name j Phone +, j Address I P AspenGoldSsenrer angelas, __.. 1 of 1 � p0 C)o cj� q, CP �. �e KRI S T I F E RRA RO 1.1.c ATTORN E AT LAW February 18, 2014 VIA EMAIL: iennifer helan cityofaspen com Jennifer Phelan, Deputy Planning Director City of Aspen 130 S. Galena Street 3rd Floor Aspen, CO 81611 Re: Expanded Interpretation of Section 26.710.140(B)(2) Dear Ms. Phelan, Thank you for the February 4, 2014 expansion of the interpretation of Section 26.710.140(B)(2) of the Aspen Municipal Code regarding uses allowed on the ground floor in the Commercial Core Zone District. While we agree with much of the expanded interpretation, we believe that it does not provide enough certainty about how the City of Aspen will determine whether a professional service provider has sufficient retail use in the front of the professional office to satisfy the requirements of Section 26.710.140(B)(2). In our telephone conversation, you indicated that an optometrist, doctor, lawyer, dentist or chiropractor that has merchandise for sale in the front of the professional's office, may satisfy the requirements of Section 26.710.140(B)(2) even if such professional practice is not set back at least 40 feet from the street and recessed behind the front most street facing fayade. However, you said that having a few items for sale in a waiting room in the front of the practice would probably not constitute a sufficient retail use to allow that professional practice to satisfy the requirements of the code. Apparently, this determination will be made on a case by case basis, but we fear that such an ad hoc approach will lead to inconsistent application of Section 26.710.140(B)(2). Nevertheless, based on the fact that the optometry practice that was of concern to our client is no longer pursuing an office on the ground floor in the Commercial Core, we will not file an appeal to the expanded interpretation. We would like to reserve the right to raise this issue again in the event that in the future, this optometry practice or another professional office seeks to locate on the ground floor in the Commercial Core Zone District. Our client is concerned about ensuring the "high level of vitality" in the Commercial Core that the code is intended to achieve. Very truly yours, Kristi Ferraro PO Box 145, Avon CO 81620 • phone 970-471-4715 • fax 970-748-3175 • kferraro @comcast.net Jennifer Phelan From: Jennifer Phelan Sent: Thursday, January 02, 2014 3:40 PM To: 'Matthew Ferguson' Subject: Expanded Interpretation Confirmation Hi Matt: I hope you have been able to enjoy the holidays. In our last email correspondence on December 191h I had asked whether an expanded Interpretation, reserving your right to appeal, was agreeable to you regarding the retail/office issue. You responded with a "yes" but wanted to check with your client and Kristi. I'd like to proceed with the expanded Interpretation and would like to get confirmation that you are in favor the of the expanded Interpretation. Thanks,Jennifer Jennifer Phelan,AICP Deputy Planning Director Community Development Department City of Aspen 130 S. Galena St. Aspen, CO 81611 970-429-2759 www.aspenpitkin.com Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. - - - - - - - - - - - - - - - - 1 Jennifer Phelan From: Matthew Ferguson [matt @matthewfergusonlaw.com] Sent: Thursday, December 19, 2013 6:31 PM To: Jennifer Phelan Cc: Kristi Ferraro Subject: RE: Appeal Yes, let me speak to client and Kristi. I did not want to waive right to appeal of course. 81 titAI'Tff E W C yF,R GU4(,"3 LAW! FIRM matt2matthewfe[gusonlaw com A Professional Corporation I Attorneys at Law 119 South Spring Street I Suite 201 Aspen, Colorado 81611 970.925.6288 office 1 970.925.2273 fax PLEASE NOTE OUR NEW ADDRESS * If you are a client of Matthew C. Ferguson and this electronic mail message is directed to you, please DO NOT FORWARD this transmission to anybody.Strict confidentiality is necessary in order to maintain confidentiality. From: Jennifer Phelan [mailto:iennifer phelan(cbcityofaspen com] Sent: Thursday, December 19, 2013 4:49 PM To: Matthew Ferguson Cc: Kristi Ferraro Subject: Appeal Hi Matt: Thanks for submitting all the requested items needed for your Appeal application. I had a chance to review it and would like to verify what you are asking for in your correspondence dated December 16, 2013. After reading it, it is my understanding that you would like an expanded Interpretation. We can do that but it will put an Appeal on hold until the expanded Interpretation is issued. Once issued you can let me know if you want to appeal the expanded Interpretation. If this is agreeable to you please let me know. Thanks,Jennifer Jennifer Phelan,AICP Deputy Planning Director Community Development Department City of Aspen 130 S. Galena St. Aspen, CO 81611 970-429-2759 www.aspenpitkin.com Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to 1 the sender that you have received th6 message in error and then delete tt ue`, appl cab Bathe nro pi formation contained in this email are advisory in nature only and are not binding on the City of Aspen. and opinions contain in the email are based on be accurate current The pinions and nbfJormation conta ned here n don of p eate aulegal or zoning, wh ich is suect to change in the future, representations that may or may not vested right or any claim of detrimental reliance. 2 d Og2.2o 9 RECEIVED MATTHEW C . FERGUSON DEC 18 2013 LAW FIRM CITY OF ASPEN December 16, 2013 �(?MUI►N►TV ONELOPMEN7 VIA HAND DELIVERY AND E-MAIL Chris Bendon, Community Development Director City of Aspen 130 S. Galena Street 3rd Floor Aspen, CO 81611 Re: Appeal of Interpretation of Section 26.710.140(B)(2) Dear Mr. Bendon, We have your interpretation dated December 2, 2013 of Section 26.710.140(B)(2) of the Aspen Municipal Code regarding uses allowed on the ground floor in the Commercial Core Zone District(the "Interpretation"). The purpose of this letter is to initiate an appeal under Aspen Municipal Code Section 26.316.030 to the Interpretation, and/or to ask for an expansion of the Interpretation to include an analysis of the meaning of"office uses." The Interpretation analyzes the meaning of the terms "street" and "space" that are used in Section 26.316.030, but it does not analyze the meaning of "offices uses"that is also used in that code section. The interpretation does not address how the City of Aspen will determine whether a particular use that has elements of both office and "retail", meets the definition of"office uses" contained in AMC Section 26.104.100, and is therefore controlled on the ground floor in the Commercial Core zone district, or whether the use meets the definition of "retail uses" and is therefore not restricted. With this further interpretation of"office uses,"your recent one can and will be used by doctors, dentists, chiropractors, opticians, lawyers and real estate companies to locate their offices within the Commercial Core zone district without restriction, as long as there is a sufficient amount space used for retail sales, even if retail sales from such space are minimal and fail to encourage the "high level of vitality"that the code is intended to achieve. As you are aware, I represent a retailer in the Commercial Core zone district. Our client is concerned that American Optical Services, which owns and operates ophthalmology and optometry practices nationwide, is opening a practice that violates both the letter and spirit of Section 26.710.140(B)(2). American Optical Services' patients are those who go to these racks as directed by the optometry practice. The retail sale of eyeglasses and related items is only incidental to the optometry and ophthalmology practice. It will not meet the definition of a retail use, by being a commercial establishment engaged in the "selling" of merchandise, with an optometry practice being incidental to the sale of such products. Based on the existing Interpretation, American Optical Services would be allowed to circumvent the code's purpose of maintaining the vitality of Aspen's commercial core, simply by allotting sufficient TECEIVED A PROFESSIONAL CORPORATION I ATTORNEYS AT LAW 119 South Spring Street, Suite 201 1 Aspen, Colorado 81611 1 970.925.6288 office 1970-925.2 _ :fix WWW.MATTHEWFERGUSONLAW.COM t Chris Bendon, Communitevelopment Director December 16, 2013 Page 2 of 2 premises to retail sales. It also penalized eyewear shops who were told straight out that ophthalmology practices could not be in the core. On behalf of my client, I respectfully request that you expand the Interpretation to analyze the meaning of office uses in Section 26.710.140(B)(2), and to set forth the methodology for determining whether, and under what circumstances a professional practice of an optician, a chiropractor, a doctor, a lawyer and so forth, will be considered a "retail use" rather than an "office use." In our situation, we have ophthalmology and optometry practice allowed as "retail" if it displays glasses up front. We clearly have 5 or more experienced shops. A chiropractor would be able to sell health products and set up the chiropractic practice in the rear. Thank you for considering this appeal and processing it for an agenda item for City Counsel. Very t yours, a erguson IVIFMRJ tai i r uer twig N COMMUNITY DFVELOPMM Transaction - Sale Page 1 of 1 City of Aspen,CO-Community Development log out Transaction failed: DECLINE A portion of this transaction has been DECLINED by the card issuing bank. We have automatically VOIDED any portions that may have successfully processed. Cardholder may still see funds on hold for up to 2 business days. Please use another form of payment, or a different credit card, to process this transaction. TRANSACTION SUMMARY Payment Item Reference Number Amount Community Development CC Payment-[001.00.00000.10111] Land Use Case $1300.00 NPS Convenience Fee (Non-refundable) $ Total: 31.85 $1331.85 Edit Items ENTER PAYMENT/BILLING INFORMATION • Credit Card • Cash • Check SWIPE CARD Key Enter tMC'VER ra 9&.blems swiping card? Please ensure cursor is in the blank field. VISA Cancel Sale ( Submit Query ^( https://trx.npspos-com/payapp/app 12/18/2013 RECEIVE[ DEC 18 2013 PROJECT: ATTACHMENT 2-LAND USE APPLICATION CITY OF ASPEN COMMUNITY DEVELOPMENT FNane,, eA d v� {Z/f 1^e 6Y1 SS iti p ( �- al— 2 ZUI � : Indicate street address,lot&block number,legal description where appropriate) #(REQUIRED) APPLICANT: Name: Address: Phone#: REPRESENTATIVE: Name: MQ�'f e,e _. �� u b Yl �✓WI Address: So u 4'h Y7 n r e-e— e. uk't�c 201 Phone#: (-1-70) 01 D,t", - t;z g g TYPE OF APPLICATION:(please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ ❑ Temporary Use GMQS Allotment ❑ Final PUD(&PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA—8040 Greenline,Stream ❑ Subdivision Exemption(includes ❑ Final SPA(&SPA Margin,Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ ❑ Residential Design Variance El Lot Lot Line Adjustment � ❑ Other: Conditional Use EXISTING CONDITIONS: descri tion of existing buildings,uses,previous approvals,etc.) A PROPOSAL: descri tion of proposed buildings,uses,modifications,etc. rJZ A Have you attached the following? FEES ❑ Pre-Application Conference Summary Attachment#1,Signed Fee Agreement Response to Attachment#3,Dimensional Requirements Form ❑ Response to Attachment#4,Submittal Requirements-Including Written Responses to Review Standards ❑ 3-D Model for large project All plans that are larger than 8.5"X 11"must be folded. A disk with an electric copy of all written text (Microsoft Word Format)must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model. . wair`f Pe6ewt ,' �_arak !F Pull Ae&.Fe r-9 usob%f0t �vK D bg 2• Zof� - A'�t.�t RECHVED DEC 1 6 2013 CITY OF ASPEN COMMUNITY ME[OPMENT COMMUNITY DEVELOPMENT DEPARTMENT Agreement to Pay Application Fees Anagreement between the City of As en("City:J("City: and Property Matthew C.Ferguson Law Firm, Phone No.:970.926.6288 Owner 0"): Representative Email: matt @matthewfergusonlaw.com Address of N/A Billing 119 South Sp rin Street, Suite 201 Property: E. � �� Address: g (subject of �t Z.Z" (send bills here) Aspen, CO 81611 application) understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $.0 flat fee for Select Dept 0 Select Dept $. flat fee for $0 flat fee for Select Dept $ 0 flat fee for Select Review For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non-payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ 1'300 deposit for 4 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at$325 per hour. $ deposit for hours of Engineering Department staff time.Additional time above the deposit amount will be billed at$265 per hour. City of Aspen: Property Owner: Chris Bendon Mat ew C. Ferguson Community Development Director Name: President of Matthew Q Ferguson Law Firm, City use: Title: as Representative 1300 Fees Due:$ Received:$ JZHILKuN.2013 0N ot'A-spen 1130 S. Ualctia St, 1(970)920-5090